such as to be admissible in evidence to supplement, or in any way alter, the effect of the contract.

All doubtful questions involved in the proposition that the writing stands, are eventually for the lawyer, and the engineer should not expect to do otherwise than consult his lawyer when a fair question arises in his mind as to the admissibility of any evidence available.

Engineer's Relation to Secondary Evidence. The admission of secondary evidence, apparently contrary to the "best evidence" rule, is rather technical; nevertheless, there is a principle involved which the engineer can profitably take to heart; at the trial his lawyer will attend to the technicalities. Any evidence of apparently good quality which the engineer can secure should be ready for presentation, and he should always secure the best evidence he can find so far as his knowledge, experience, and skill allow. He may profitably act upon the principle stated by a very able law writer that all facts having probative value are admissible unless some specific rule forbids. Nevertheless it is worth while for him to have some knowledge of the rules which restrict the admission of evidence.

Best Evidence not Personal Quality. It should be understood that the standing or character of the man giving evidence has no bearing so far as the question of "best evidence" is involved. Whether evidence shall be admitted depends on the quality of the evidence and not on the character of the man. One man's evidence is as good as another's so far as its competency or admissibility is concerned. Before the jury, however, the situation is different and the weight given to any man's testimony may be much influenced by his standing in the community, by the clearness and apparent integrity of his answers, or by his demeanor while testifying.

HEARSAY

Definition. Oral evidence must be direct to satisfy the rule as to the best evidence. If it refers to a fact alleged to have been seen, it must be the evidence of a witness who says he saw it. If it refers to a fact alleged to have been heard, it must be evidence of a witness who says he heard it. If it refers to a fact alleged to have been perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner. The judge will not allow Jones to testify as to what Smith said; that is "hearsay " and hearsay evidence is ruled out. Let Smith, the first man, come himself and tell what he saw or knew to be the fact; that is the best evidence. Statute Law has in some States provided that Jones may testify to what was said by Smith previous to the bringing of the suit; this is not true in many States.

Why Hearsay Evidence is Excluded. The reasons for the exclusion of "hearsay " evidence have been stated as follows: the original statement was not under oath; there was no chance for the jury to see the demeanor of the original witness; there is possibility of error in repetition and transmission; there is no chance for cross examination of the original witness. Of these the last reason is held by the best authorities to be the most important; the meat of the whole matter.

Exceptions. While, in general, the exclusion of hearsay evidence is well established there are nevertheless various exceptions which are very perplexing, at least in their application. Where what another man said is definitely the point in issue, and not the truth of what he said, evidence of what he said is direct and of course admissible. Such evidence is also admissible when what was said was part of the transaction; what is denominated the res gesto, what was said forming verbal acts which were an important part or feature of a transaction the rest of which could properly be established by evidence.

Example of Res Gestæ. For instance, in Pennsylvania, a man sued a railroad for injuries from falling on the platform in alighting from a train. Declarations made by this man while he lay upon the platform where he fell, were allowed to go in as evidence as part of the res gesta. In Michigan and Illinois in cases dissimilar mainly in the fact that the man had been removed from the spot where the accident occurred, the evidence was not admitted; the declarations were made not during the transaction and as a part of it, but afterward and distinct from the affair. The engineer is liable to encounter similar cases where accidents of various kinds occur.

State of Mind. It is further true that what a man said may be important as showing his state of mind and become admissible for that purpose.

Necessity and Trustworthiness. It will be found that there are, first and last, many cases where hearsay, indirect testimony, is admitted. The object of a trial is to elicit the real state of the transaction, and the rules governing the introduction of testimony have relation to this end. The purpose and tendency is to secure all pertinent evidence unless its introduction would do more harm than good. And not a little evidence of the hearsay sort is admitted substantially on the combined basis of necessity and probable trustworthiness; either one alone in most cases does not suffice. As to trustworthiness, it should be understood that the term is here applied to the kind or quality of evidence, independent of the merits of the person presenting it or of individual features of a single case under consideration.

Statements of Deceased Persons. A common case illustrating necessity is where statements were made by persons afterwards deceased. In

a murder case the dying declaration of the man slain is accepted. In the shadow of death it is assumed that there is not sufficient motive to misstate, and his statement of the cause of his death may be quoted by a witness who heard it. In a similar way, where a statement was made against the interest (at that time) of him who made it, it is assumed that there is no motive for falsification, and where death or inability to bring into court creates necessity, such statements are frequently allowed to be presented by one who heard them, or if made in writing, by one who can authenticate the writing. The statement against interest, if made by a party to the suit, is in effect an "admission," reference to which will be made later.

Against Interest. Declarations of the owner of land, while in possession, in disparagement of his own title are always admissible in evidence. Sometimes evidence of this sort touches boundaries; and the declaration of a deceased may be in the form of a map, plan, survey, or the like. In one case the question at issue was the height of a dam; the declaration of the former owner, now dead, stating the height to which he had a right to build, was admissible in evidence; this height being the lower height of those in controversy and so against his interest. It is the rule, and important, that such declarations should have been made before any suit was started touching the matter involved.

Pedigree. In the matter of pedigree and family history there is often necessity for accepting the statements made by a deceased member of the family, and generally with slight risk of untrustworthiness when made previous to the suit being brought. Dependence here would be placed upon the declarant's means of knowledge.

Depositions. Where the presence of a witness cannot be secured, there are cases where his written deposition or affidavit may be taken and admitted in evidence. The conditions allowing their introduction place them beyond the engineer's functions to handle unless under instruction. Nevertheless, the affidavit of a person who witnessed an accident or knew certain facts may be very desirable to secure. The witness may be liable to forget; from motives of friendship or other persuasion he may later be willing to testify contrary to the facts. The prompt securing of his affidavit will probably forestall all such difficulties. The affidavit, in general, will not be admissible in evidence; but if, as a witness, the man who made it should deny having made it, then there might be an opportunity for its introduction to impeach his testimony. The mere existence of such a paper will often prevent a man from testifying contrary to the statements made in it. A statement signed but not sworn to may often be secured where a sworn statement would be refused, and this is almost equally good.

Entries in Course of Business. Another exception to the "hearsay rule" is the case of books of account, or other records, made in the regular course of business; the latter feature is considered essential as an assurance of substantial accuracy, including freedom from attempted misstatement. An entry or record in such a book must have been made as a part of a series or system of entries, and at the time of the transaction or promptly after it. If any apparent motive to misrepresent should be apparent, it would render the evidence unavailable.

Surveyor's Notes. In the case of surveyor's notes, for example, it appears not to be necessary (in many States at least) that the person making the entry should himself have made all measurements recorded, or have handled all articles entered in the book. In cases where they expect to testify in court some careful surveyors, in making surveys, do read every angle and read the distances measured by tape, and themselves plot the survey; and this amount of care is eminently desirable whether absolutely required by law or not; testing the tape is also a proper precaution.

Book of Original Entry. It is not always necessary that the man who made a record shall be at hand to swear to it; the book containing it must be proved to be the book of original entry, not a copy, and the man who made the entry be unavailable at the trial. A note book containing the record of a survey, or a log book of experiments, would probably be classed with other books of original entry. The book itself must have an honest appearance and must be authenticated as a book of original entry.

Refreshing Memory. Although not connected with the hearsay rule, it may be stated that a witness occasionally refers to a paper or book, and the rule seems to be that a witness may use, to refresh his memory, a paper with dates, or calculations, or other memoranda, made reasonably contemporaneously with the transaction, provided that the witness testifies that in his present recollection such memoranda are correct. It is less satisfactory, but will probably suffice, if he testifies that in his present recollection the memoranda were correct when made.

Reputation. Reputation, that is a general reputation as to land rights and land boundaries of a public character, is also available as evidence, but apparently not as to private boundaries except so far as these happen to coincide with public lines. The courts have ruled that the boundaries established by the United States surveys are provable by evidence of common repute when the monuments have disappeared. Reputation may often rest on old maps or surveys which have been used in the community sufficiently to have acquired a reputation for correctness. Old deeds may have similar effect. In a Massachusetts case it was held that the location (of a creek) may be proved by reputation and tradition,

recitals in ancient deeds, and the evidence offered by ancient maps and plans.

Admissions. Differing in many ways from those declarations which may be established by hearsay evidence, are admissions by a party to the suit; that is, statements or actions made by the party contrary to his present position in the suit as shown by his pleadings or evidence. Statements by other parties as to such admissions are accepted in evidence. A statement by Smith that Jones owed him $50, or a demand for $50 in payment is an admission, if later a suit for $100 is instituted based on the same transaction; but an offer to settle for $50 rather than go to suit is not an admission, and not allowable in evidence against him. A failure to deny a statement made by any outside party may constitute an admission if a man reasonably careful of his reputation could not be expected to stand by without contradicting the statement.

Declarations against Interest. In somewhat the same fashion that a declaration against interest by a party now dead is admissible, a statement by one living, in disparagement of his own title, is an admission and may be presented in evidence. Where the point in issue was whether a landlord or his tenant had the duty of keeping a platform in repair, the landlord repaired it after an injury had occurred; this was held an admission of his duty to repair it. An admission by an agent, within the limits of his authority, will bind the principal who is a party to a suit. Oral admissions should always be received with some caution; the judge controls their reception as evidence, but the weight to be given them, if introduced, is finally for the jury to determine.

DOCUMENTS

Documents. Documentary evidence has been stated to include writings, printed matter, pictures, maps, and diagrams. Documents are public or private. Private documents must be introduced by evidence. of their authenticity, usually by oral testimony. Every kind of private writing, except ancient documents, must be proved to have been made by the party whose act it purports to be in order to render it properly admissible in evidence; this may be by the testimony of those who can testify to the fact of its execution, or, in some States, by virtue of the acknowledgment by a notary or other qualified official. When a document has been attested, the evidence of the attesting witnesses may be required in many States, but the tendency now appears to be to require the testimony of an attesting witness only for documents (like wills) which are required by law to be attested; for other writings the signatures may be proved by one who saw them made or otherwise knows them.