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the paper written, are proper subjects for inquiry when nothing more certain is available. In the case of contracts, anything which may show in what way the writing had previously been interpreted by the parties to it will have definite weight. While punctuation is said not to control, yet if the clear meaning can be better found by the help of punctuation, and not without it, then the punctuation is important, or even controlling. Clerical errors may be corrected, words added where clearly intended, or words left out in a similar way, but only when adding, omitting, or correcting leads to maintaining the clear intent. Sometimes meaningless words will be rejected as surplusage; but in general a strong effort will be made to give effect to every word.

Ordinarily words will be used in their general and popular sense rather than in any technical sense; but in a statute, or more especially in a contract covering special trade or technical operations, the technical rather than the popular sense will often be clearly intended. Where there is an irreconcilable conflict in parts of a statute the last is of greater weight and will control. Where an inferior court, or the officers even, have for a long time acted upon a certain construction of a statute, a higher court will hesitate about setting aside this accepted view and will tend to stand by the Common Law principle of holding to usage and custom. A statute expressed in such form that no useful construction can be put upon it is in effect void.

Strict or Liberal Construction. Whether statutes shall be interpreted "strictly " or liberally" is sometimes of considerable importance; but it is unsafe to attempt in this short treatise to lay down any rules, since these oftentimes have sufficient variation locally to require a somewhat careful study of authorities. In general, statutes in derogation of Common Law, of the common rights of individuals, are to be strictly construed; for instance, the statute providing for mechanics' liens, it is generally held, should be construed strictly, and no more power assumed than the strict reading allows.

Repeal of Previous Statutes. The rule has been stated that a later enactment serves to repeal not only the Common Law previously in force but also probably repeals any previous statutes or parts of statutes which are inconsistent. It is best, however, for the repealing act to state that "all previous inconsistent acts are hereby repealed." The courts do not favor repeal by implication, and an act well drawn will leave no uncertainty on this score.

Certain Special Words. It will be found that, in the case of certain words, court decisions have determined the meaning under the Common Law. For instance, the words "and" and "or" are very commonly construed as equivalent, although not always. Again, "shall" is some

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times construed "may," and " may sometimes construed "shall"; the distinction as to these is often of great difficulty and the true intent is not easily determined by the layman, not always even by the experienced lawyer; but it will sometimes depend only on the decision of the court, which in a close case is sometimes jocularly said to "have the last guess" at the meaning.

Importance of Clear Expression. It would be quite improper to leave the question of the interpretation of writings without making the suggestion that the engineer who has to do either with the production or interpretation of writings can have no better preparation than a thorough training in the clear expression of English and a critical analysis of its meaning. The school training must be supplemented by systematic individual work in this direction.

CHAPTER II

EVIDENCE

Definition. Evidence, in a legal view, is the means by which any alleged fact is established or disproved. There are two important sides or features of evidence; first, its "competency "; second, its "weight." Competent evidence is that which is appropriate in its nature as a means of proof. Satisfactory or sufficient evidence is that amount or "weight" of evidence which is adapted to convince a reasonable mind.

Duties of Judge and Jury. It is for the judge to decide whether evidence offered is competent or admissible; the jury decides as to the "weight" or sufficiency of evidence presented which bears upon the point at issue; that is, what credit shall be given to it. The jury has no opportunity to decide whether evidence offered shall be admitted; the judge settles this, and often sends a jury out while the attorneys argue whether certain evidence ought to be admitted or not.

Erroneous Rulings. If the judge rules improperly, in view of precedents forming the Common Law, or in view of special statutes, this constitutes an error on his part, and if the ruling be on a point material to the decision of the case, it probably will result in a new trial being ordered if the case is appealed to a higher court, just as is done in any other case of misinterpreting the law. The judge may, and occasionally does, exceed his functions by passing judgment upon the "weight" to be given to certain evidence presented; this again is error on his part. The jury is, in the first instance, the sole judge of the "weight" of evidence, the credit to be given it; but after the verdict of the jury is rendered, the judge may, and occasionally does, set the verdict aside. because, in his opinion, it was clearly against the weight of evidence.

When, however, the judge directs a verdict either because the evidence is harmonious, or because, even if true it makes no case in law; in neither of these cases does he pass on the weight of evidence, but only upon its legal effect, and this lies within his proper functions.

Standards of Evidence. It is said that mathematical truth alone is susceptible of actual demonstration beyond possibility of error. Demonstration beyond reasonable doubt is the utmost that can be demanded or

expected in ordinary human affairs. In criminal trials this high standard is called for; evidence conclusive beyond a reasonable doubt is required before a man accused can be convicted. In civil cases a less rigid standard secures more satisfactory results; here proof by preponderance of evidence only is necessary, quality as well as quantity being elements in the preponderance.

Engineer may Secure Evidence. The engineer has to deal with the performance of contracts, and is often directly in contact with what is done in connection with them. Cases of negligence or of trespass are also frequently within the knowledge of the engineer. He is often early on the scene of an accident. In one way or another, therefore, the engineer is on hand and in position to secure facts, evidence then obtainable but soon lost through changed conditions, so that it is of great importance that he should have some knowledge of the qualities of evidence both with a view to its competency which permits its introduction, and also with a view to its importance, in getting together enough facts of a valuable and convincing sort, so that the interests of his employer shall be adequately protected. Many cases in court have been lost because of insufficient evidence to establish actual facts favorable to one party, for the reason that nobody at hand had knowledge of what evidence was competent and valuable, and of how and by whom it could be presented in court.

Quality of Evidence. Evidence, and particularly the evidence of witnesses, is measured, the weight to be given it is determined, first by our general knowledge and belief, to which evidence commends itself as being reasonable; second, by our faith in human testimony, as a matter of experience; third, by the influence or effect of other collateral facts presented which bear upon a point in controversy. The value of the evidence of any witness thus depends on:

1. His opportunity of observing the matter he relates.

2. His powers, natural and acquired, of perception and observation; including his temperamental qualities.

3. Whether the facts in question were sufficiently within his experience and training to have secured careful observation.

4. His memory, taking into account lapse of time and opportunity for refreshing memory.

5. His reputation as to honesty or his apparent honesty. These are matters which directly appeal to juries.

Classes of Testimony. But the courts, the judges, through the experience of years, have found that certain classes of testimony are definitely unreliable and should not be considered, and so should not be admitted in evidence; that certain other classes are comparatively unsatisfactory and should be admitted only when more reliable testimony

has become unavailable. In such ways the law relating to the admissibility of evidence has become established.

Irrelevant or Immaterial. When the real issues in a case have been defined by the pleading, evidence is rejected if it be irrelevant or if it be immaterial. In either case it not only adds to the mass of evidence (which is undesirable) but it further opens an opportunity for the jury to acquire a prejudice or to draw conclusions from this testimony which from the law point of view are all wrong, so that such evidence is detrimental to justice and properly shut out.

Sometimes evidence is temporarily rejected as irrelevant, and afterwards admitted when a foundation is laid by other evidence which shows it to have a proper bearing on the case. The skill of the lawyer is of importance here, and the engineer may often aid the lawyer in a preliminary conference, for the reason that in technical matters the bearing of facts may be clearer to him than to the lawyer.

Another requisite is that the evidence offered shall be the "best evidence" available; further attention will be devoted to this point later.

Direct, Indirect, Circumstantial. Evidence may be divided into three main classes; direct, indirect or circumstantial evidence, and real evidence. Each of these requires, in general, oral testimony for its introduction.

Judicial Notice. There is, however, one class of evidence which requires only presentation by the attorney to secure its acceptance by the court; that is, evidence of which the court will take "judicial notice."

This procedure of taking judicial notice, like that of having the pleadings lead to as simple a point, or points of controversy as possible, is clearly adopted to promote simplicity of action in court and facilitate generally the conduct of the trial. There are many matters of law which it is within the province or the duty of the court to know, and which should, and do, require no proof. The court must know the Common Law, the Constitution of the State and of the United States, statutes, treaties, law of nations, municipal charters and ordinances, the courts and the court practice within its own State. While the court does not take judicial notice of the statutes or the Common Law of other States, it accepts without question the fact that the printed reports of another State do define the law as applied in that State. Most of the above matters the court is under obligation to take judicial notice of. In many cases the court may exercise discretion, but this will generally be exercised under the Common Law principle of following precedent when the cases are substantially identical or very similar.

Examples. The court will thus judicially notice well-known geographical facts, the general location of cities or counties, but perhaps not

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