Evidence. Judicial evidence differs from the proofs by which human judgment is ordinarily determined in non-judicial matters, chiefly in certain rules established for the sake of facility in disposing of complicated questions of fact, or on grounds of public policy. These rules may be reduced under the following heads: 1, cases in which a rule is prescribed for the purpose of getting at a certain conclusion, though arbitrary, when the subject is intrinsically liable to doubt from the remoteness, discrepancy, or actual defect of proofs; 2, cases in which evidence is excluded on the ground of being untrustworthy and tending to unnecessary prolixity, or from its very nature likely to be untrue; 3, cases in which a legal presumption is substituted for actual proof, or in place of what could be proved, being supposed to be more consistent with the real rights of the parties than any result which could be expected from positive testimony; 4, the graduation of the weight of evidence, which will be found in some instances to be arbitrary in its origin, and perhaps not altogether in accordance with the ordinary process of judgment.-Under the first class will be included various rules which have been adopted, not from exact uniformity per se, but for the sake of having some rule of general application, among which may be specified the following: a.
That after seven years' absence without having been heard from, a man shall be presumed to be dead. It is obvious in this case that the period fixed upon is no more certain than any other, but it was necessary, for the protection of the rights of parties who were compelled to act upon some presumption, that a legal rule should be established. If a man therefore has been absent seven years without anything being heard of him, his wife may marry again without incurring a penalty for bigamy, though it has not been provided that the second marriage shall be absolutely valid in case the husband should afterward return; and his heir, or the person entitled to his estate by succession, becomes vested with presumptive ownership, the same as if his decease was actually proved, b. That after the exclusive possession of land or of an incorporeal hereditament for a certain period of time, a grant shall be presumed, and the title of the occupant will be sustained against all claimants. In England this period was formerly expressed with some vagueness, as being beyond the memory of man, and the rule applied there only to incorporeal estates; but by a statute (2 and 3 William IV.) the period has been limited to 20 years in cases of aquatic rights, ways, and other easements, and to 30 years in respect to right of common and other uses arising out of lands, except tithes and rents.
In the United States the presumption is generally the same both in respect to corporeal and incorporeal estates. In a large number of the states 20 years' exclusive, undisturbed, and uninterrupted possession, under claim of right, is sufficient to establish title to lands or ease-ments. In some states a shorter period is prescribed, either generally or for particular classes of cases, as for example those in which the claim of right is under purchase at a tax or judicial sale. c. That deeds more than 30 years old may be used as evidence without proof of their execution; in other words, that they prove themselves. The presumption in such cases is that the subscribing witnesses or others by whom proof of execution is ordinarily made may be dead, but the rule is the same even if such witnesses are actually living. In offering such a deed in evidence, however, it is necessary to give some account of the custody of it, and to show that possession has been consistent with its provisions, so as to rebut any suspicion in respect to its genuineness, d. An infant under the age of seven years is conclusively presumed to be without discretion. Beyond that age it will be a subject of proof whether he is doll capax, but prior to that time no inquiry is permitted.
So an infant under the age of 14 is presumed incapable of committing a rape, though in fact there are instances of sexual capacity before that age. So when husband and wife are living together and impotency is not proved, the issue will be presumed legitimate, although it should be proved that the wife has during that time com-mited adultery, e. By the common law, if a wife do any act in the presence of her husband amounting to felony, other than treason or murder, she is presumed to have been under coercion, and therefore not criminally liable. This presumption, however, is allowed but limited force in the United States.-The second class of cases includes two rules which were formerly of very frequent application, a. What is called hearsay evidence is inadmissible. By this is meant that a witness should not be permitted to testify what he has heard another person say, but only what he knows himself. To this rule there are some qualifications rather than exceptions. Thus it is sometimes proper to prove what was said by a person at the time of performing a certain act, as having some tendency to explain the intent, and therefore admissible as a part of the res gestae, according to legal phraseology.
In such a case, however, what was said does not strictly come under the designation of hearsay, but is itself a principal fact. So also it is admissible to prove what has been said by a party to an action. This again is a principal fact, or at all events comes under the designation of declarations or admissions, and as such is admissible. So it is permitted in oases of homicide to prove dying declarations, that is, what is said by the murdered person shortly before and in expectation of death. This is not unusual in trials for murder, and is competent evidence, both to show the manner of the death and who was the murderer; but it must be strictly confined to the homicide, and to facts which it would have been competent for the party to have testified to had he survived. The testimony of a witness on a former trial may also be proved on a second trial, in case of his decease prior thereto. Again, witnesses are allowed to testify to matters of tradition in respect to old boundaries of estates. The rule in England is limited to cases in which some public right is involved, as when a right of common is in question; but in the United States it has been allowed in many cases where the lines of large tracts of land became material in determining the limits of smaller estates.