THE

29

RULES OF EVIDENCE

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Stated and Discussed.

BY

JOHN APPLETON,

JUSTICE OF THE SUPREME JUDICIAL COURT OF MAINE.

80

PHILADELPHIA:

T. & J. W. JOHNSON & CO.,

LAW BOOKSELLERS AND PUBLISHERS,

PREFACE.

MANY years ago I read with great interest the masterly work of Bentham on the subject of Evidence. But as that is not readily accessible, and is so voluminous, it occurred to me, that a careful examination of the more important rules of law, as to the admission and exclusion of evidence, and the differing modes adopted in its extraction, as settled by courts of law and equity, would not be without interest to the legal profession and would be of utility to the public. Accordingly, I prepared numerous articles for literary and legal journals, discussing different portions of this subject. These I have collected, and with occasional corrections and additions I now offer to the public. I should have been glad to have avoided the repetition of the same line of argument when examining the different rules of exclusion; but this I could not remedy, without re-writing the whole work, for which I have not sufficient leisure.

The conclusions to which I have arrived are these:

All persons, without exception, who, having any of the organs of sense, can perceive, and perceiving can make known their perceptions to others, should be received and examined as witnesses.

Objections may be made to the credit, but never to the competency of witnesses.

While the best evidence should always be required, the best existing and attainable evidence should not be excluded, because it is not “the best evidence of which the case in its nature is susceptible."

The best mode of extracting testimony, orally, in public, and before the tribunal which is to decide upon the facts in dispute, should be adopted on all occasions, and before all courts, when practicable. The only exception to the universality of this rule is one arising from special delay, vexation and expense in its observance; as, in case of sickness, or the absence of witnesses.

Many of the errors in the law, here pointed out, have been cor