the precise boundaries of towns, certainly not of private property; for this, evidence must be submitted. It will judicially notice distances or the position of location of a long-established railroad; the facts of the almanac, including the time of sunrise or moonrise, the time of the tides; tables of logarithms, astronomical computations; and there would appear to be no reason why other tables such as those for earthwork computation, or for railroad curves, should not be treated similarly.

As a further example, it has been judicially noticed in one court or another that the Mississippi River at New Orleans is a tidal river; that the Connecticut above the Holyoke dam is not a public highway for commerce with other States or countries. The court takes notice of the common properties of matter and well-established facts of science, probably of much more now than forty or fifty years ago when school instruction failed to cover such matters; that photography, for instance, is a well-established process for obtaining correct representations of objects or scenes, so that this need not be shown (but definite evidence must be presented that a particular photograph is a correct representation of the things shown by it). There are many matters of common knowledge among intelligent people which need not be proved by evidence. The judge may, in matters of knowledge readily ascertainable, refer for his own enlightenment or refreshment of knowledge, to a cyclopedia or any book or source of information he pleases, to aid him.

Discretion of Judge. These matters are legal technicalities and the determination as to their introduction lies in the discretion of the court; the lawyer's advice is both available and necessary as to the matter and the manner in presenting this and all other evidence at a trial; nevertheless it is extremely desirable that the engineer should have some working knowledge or appreciation whether such evidence is undisputed; it is often of importance; the opportunity to acquire all necessary evidence may occur before he has had opportunity for preliminary consultation with his lawyer.

Statutes. In some States there are special statutes governing such testimony; in Iowa, for instance, books of science and charts made by unprejudiced parties are allowable in evidence to make a prima facie case; yet the court here has held that an extract from a treatise on brakes was not admissible to show the distance in which a train would stop when it did not give the size of train, pressure of brakes, nor the grade; and in Iowa, the Railway Age has been held not to be a book such as is admissible in this way.

Instruments of Evidence. The instruments of evidence are; witnesses, real evidence, documents. Of these, documents are generally the most definite, and for that reason very satisfactory. They include

writings, printed matter, pictures, maps, diagrams. The method of introducing these will be taken up later.

Real Evidence. Real testimony is that directly brought to the sight or to the senses of the court or jury, who are thus enabled, by inspection and without the testimony of others, except to identify it, to appreciate and understand this evidence. A coroner's jury has real evidence of death in the corpse; in murder or assault the pistol or ax used is often put in evidence. Persons injured and brought into the courtroom constitute another example of real evidence. In case of an accident in a machine shop, a chain, a hook, a broken iron ring, the cause of the accident, are in the courtroom as real evidence, partly to make the testimony and descriptions more intelligible, partly so that the fracture of the ring, and the ring itself, may be inspected by the jury.

View. It is not uncommon for a jury to "view" a piece of real estate in controversy, or the scene of an accident; when the roof of a railroad car was blown off and killed a man, the jury "viewed " the roof, which had been brought into a warehouse for safe keeping. A view is usually granted when the jury cannot acquire a clear or proper understanding of the premises, or the object, from the evidence alone. Whether a view shall be had lies in the discretion of the judge.

These are examples of real evidence.

Witnesses. Although the evidence of witnesses has elements of weakness, it is nevertheless the most important of all; not only does it constitute a large part of that presented in the greater share of cases, but it is further true that either documentary or real evidence usually requires some basis of oral testimony as a preliminary to its introduction.

It should be understood that a witness duly summoned into court must appear and give testimony to any facts of the case within his knowledge, under penalty of fine or imprisonment for failing to appear, or for refusing to answer the questions asked him (with some special exceptions). Among these exceptions a witness may at any time refuse to answer a question on the ground, if true, that his answer would tend to incriminate himself. Clearly this is an undesirable position for a witness to be forced into. A witness duly summoned is also liable to a suit for damages for failing to appear.

Direct and Indirect Evidence. Direct evidence is that of a witness to acts which he saw or heard or which impressed themselves upon his senses, or to facts which in a similar way are within his knowledge, when these acts or facts are those definitely and directly in issue.

Indirect evidence on the contrary is similar evidence of a witness to collateral facts or acts which bear upon the point at issue and, together with other testimony, go to make up a state of facts from which the fact

in issue may legitimately be inferred or deduced. A series of circumstances is interwoven in such fashion as to be inconsistent with any other state of fact than the one sought to be established, and so become convincing although no direct testimony is available; the term "circumstantial evidence" is probably a more common and a better known term than "indirect evidence."

Comparative Value. As to the comparative value of the two kinds of evidence, direct and circumstantial, there seems to be some divergence of opinion. Direct testimony is probably held in not quite as high regard by judges and attorneys as it is by the jury or by people generally. It is a well-known fact that the stories of direct witnesses will differ in detail, sometimes widely, even in cases where there is no suspicion of fraud or dishonesty. Few people are accurate observers, and memory plays strange tricks, so that there is always opportunity for error even where fraud and prejudice are absent.

The direct witnesses are, in the nature of things, few in number in most cases, and the opportunity for false and fraudulent testimony is especially good, since a very simple story commonly suffices. Circumstantial evidence, on the contrary, to be effective, must have its parts fit in so as to make a well-built and coördinated case; it often requires a number of witnesses who must testify to facts which together form a more complex case, and these witnesses must hold their own, often under a searching cross-examination. That circumstantial evidence should often be more conclusive than direct, seems altogether logical. Nevertheless, the human mind acts in such a way that the average juror probably tends to give greater weight to direct evidence; an index of that is found in the fact that men are plenty who will refuse to convict on circumstantial evidence in a murder case where conviction leads to capital punishment.

BEST EVIDENCE

Best Evidence Rule. Whether the evidence be direct or indirect, it must be the best evidence. The "best evidence" rule is probably the widest known of the rules of evidence and is well accepted, although not literally followed in all cases. The rule is that the evidence presented shall be the best that the nature of the case will admit; and no evidence is admissible which shows the existence of better evidence unless the absence of this better evidence is properly accounted for. Under this rule the best evidence of the terms of a deed for land is the writing or deed itself. The best evidence of what a contract covers is the contract in writing (if there is one in writing). Oral testimony of its terms is inferior and inadmissible, so long as the written contract is in existence and

available. The best evidence of a letter is the letter itself. An impression copy from a copying book, or a carbon copy, is not received if the original is available. Oral testimony is necessary, however, to present, to identify a writing.

Secondary Evidence. Secondary evidence, such as a copy, is allowable only when the original is not available, as when the original is in the hands of the adverse party who does not produce it after proper notice; or when in the hands of a stranger who cannot be compelled to produce it; or when destroyed or lost; or when not readily movable; or when a public document; or when originals are numerous documents not conveniently examined.

When one party has in his possession the best evidence and fails to produce it when duly requested, the other party to the suit may present secondary evidence, and there are no degrees recognized in this case as to the secondary evidence. While a written copy of a contract or letter may exist and may seem better, nevertheless oral testimony is admissible as to the contents of the letter. The written copy will doubtless be more convincing to a jury, more effective in weight; the oral testimony is equally competent and will be accepted by the judge as evidence, the jury to determine its weight.

Inadmissible to Contradict Writing. The rule is general that, in the case of a written contract which is not ambiguous, it is inadmissible to vary, contradict, or modify it by oral, or "parole," evidence of anything which occurred at or before the time it was executed. This has been the law in England since 1771.

In case of apparent ambiguity, the court will construe it if possible and find its correct and harmonious meaning, and may allow some oral testimony as to the technical meaning of words or terms if that will assist. In the building trades there are technical practices, such as allowances for openings for doors and windows in computing the payment for brickwork or masonry, and if not covered clearly by contract, oral testimony may be allowable to establish what is the custom. Similarly, oral testimony might be admissible to determine whether or not the prismoidal method should be used in earthwork computation.

Writing is Best Evidence. As has been stated, in proving the contents of a contract or other writing, the best evidence is the writing itself and this must be produced. Where any documentary evidence is not within the control of a party to a suit who desires its introduction, a reasonable notice to produce it should be served upon the other party to the suit (if in his control); or if in the hands of some third party, a subpœna duces tecum should be served, a summons to attend the trial and bring the desired documents. A failure of the attempt to obtain

them in this way (faithfully made) allows the introduction of secondary evidence, such as the copy-book page, or the carbon copy of a letter, or sometimes as a last resort even oral testimony as to the contents of the document. Before the secondary evidence will be allowed, however, the document must be proved to be in the hands of the other party or hopelessly lost, or to be beyond the jurisdiction of the court.

Oral Explanations. Occasionally the only writing used in connection with making a contract is a receipt, and while this may properly be supplemented by oral evidence as to what the contract was, it is sometimes difficult to determine whether such a writing is a simple receipt or is the expression in writing of a completed contract. Sometimes part only of a contract is reduced to writing; perhaps there are several papers, and some of these require to be supplemented by oral testimony to explain their connection. An offer may be made in writing and accepted orally, or vice versa. Sometimes oral evidence is introduced to set up a counter-claim.

Additional Oral Contract. Again there may be a written contract, and an oral contract upon another matter or upon a matter which possibly does connect with or infringe upon the scope of the written contract. Sometimes there is a question practically of implied warranty. In a case where a certain machine was contracted for in writing, and the purchaser was sued for payment, the purchaser offered parole evidence that there was a definite understanding and agreement (aside from the writing) that the machine "would do the work satisfactorily"; the court held that if the agreement had been for machines to do this work therein specifically described, there would have been an implied warranty, and from a similar point of view allowed the oral testimony to be offered.

Oral Proof of Illegality. Oral evidence may be presented to show that a contract signed was obtained fraudulently or under compulsion. Fraud, intimidation, illegality, want of due execution, want of capacity in contracting party, want or failure of consideration, mistake of fact; anything affecting the validity of a contract may be put in evidence under what is called the "parole" rule. It may always be shown by oral testimony that the transaction was not intended to have legal effect, or that while signed the contract or deed was never delivered.

Complete Writing Conclusive. But when a legal act is reduced into a single memorial in writing, all other utterances are immaterial. It is well established that you cannot disturb a clear meaning expressed in a writing. But if agreements are made subsequent to the written contract, oral evidence of these is clearly admissible; they are essentially new contracts. The careful engineer, however, should see to it that his contract is in definite and complete shape in writing, and further that there are no oral transactions of a sort to modify the contract, or