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fami), a D. ani na
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necessar sons leaves and claim the saints place it aina these delinur that this st. court more D. judicz:
ples of the arguments used by Mr. Bentport of their extreme views. Their logic all preappointed rules for receiving testi
While it is insisted that grave doubts goes into
lowing parties to testify on the trial; while ly if you will, causes one to swerve from the luence of such a law must be hurtful to the ho testifies in his own behalf, are there not favor the exclusion of the party himself from rom the standpoint of the citizen is not to be nse upon the party and upon the community, clings in the breast of the litigant that are damvent a healthy development of true character, Lends to prevent litigation and to enable persons ences outside of the court-house, is desirable. At
nds to prevent a disagreement as to the facts seems i conservatism. If, therefore, men were preadvised of litigation, neither should be heard in court in his I they not be very careful in their business engage
matters of fact, as far as possible, reduced to writing, to the treachery of human memory, influenced by all selfishness and love of gain ? Does not the same argu
for the maintenance of the Statute of Frauds call for i would require men to be more careful in their business say the least of it, ought not the party, when an issuable .ed on oath. be required to corroborate his testimony by is? Would such a rule work hardships? Would it not ske men more careful? Would not some such rules aid in very of truth, and would not they approach pure sources ? it as now, a judge, if related even within the fourth degree, kas apy interest whatever in the result of the suit, is diwualiDES3, and deciding a pure question of law. I juror, if de party, is disqualified from serving; and yet a **s sterest is a: stake, whose finarcial condition ab eis can relate evidence which the law says is
€ 90.19 be resured to furtish other proof? 4224. 3o cai cases; but does not our iaw gi ter sans se bare statement of the deier.rari, no. 2013 mnadon may be acceerd stean er í 2006 204 :esteri”
observance of it. Nevertheless, the convenience of having certain fixed rules, which is far above any other consideration, has induced courts of justice to adopt them, without canvassing every particular incon venience which ingenuity may suggest as likely to be devised from their application.” There is a difference between evidence, in the usual acception of the term, and judicial evidence. The former relates to any manner of ascertaining the truth, while the latter implies a certain procedure in the investigation. In order for evidence to be received in a judicial investigation, rules must be observed. A and B resort to the courts to settle their differences. In ascertaining the truth of the case, only such testimony can be received as accords with preappointed rules for that purpose. C and D appeal to the courts, and their differences are adjudicated by the same rules. But if A and B adjust their matter by the rules of evidence in ordinary affairs of life, they resort to any and all methods that ingenuity may devise; hearsay evidence may be received, oral statements of contents of written instruments, which are not lost, will be received, and, in fine, any plan either party may adopt will be acted upon. C and D may meet, and adjust their differences on a basis, so far as hearing testimony is concerned, that is en.. tirely different from the plan pursued by A and B, and so on indetinitely ; every case in the ordinary affairs of life may be different from every other case, as to the mode of hearing testimony.
But Mr. Appleton in his treatise goes to the extent of denying the wisdom of any exclusionary rule.' He says: “The main business of. life is in hearing and reasoning on evidence. Judicial action- decision upon proof—is an every-day affair of common lise. · Evidence, proof, testimony, is the same, whatever may be the occasion ou which it is ob, tained or the uses to which it is applied ; whether it be given 'in the ordinary affairs, or in judicial investigation', its probative force is the same. The individual-party, wife, attorney, convict, atheist,—no matter what he may be,—whose statements out of court would be entitled to, and would receive credence (and 'in the ordinary affairs of life' they might receive credence, though it were a party speaking of his own interests, a wife of her husband's, an attorney of his client's, a convict, or an atheist of those of others,) would not be the less entitled to belief, because the same statements in relation to the same subject-matter should be uttered in open court • The ordinary affairs of life,' all business transactions between men, are conducted upon evidence; and the same principles which guide, the same rules of judging and weighing testimony, are alike applicable in judicial investigations as in the ordinary affairs of life.”
The foregoing are fair samples of the arguments used by Mr. Bentham and Mr. Appleton in support of their extreme views. Their logic leads to an abolishment of all preappointed rules for receiving testimony in judicial investigations. While it is insisted that grave doubts exist as to the wisdom of allowing parties to testify on the trial; while such a system, unconsciously if you will, causes one to swerve from the truth ; while the reflex influence of such a law must be hurtful to the character of the litigant who testifies in his own behalf, are there not other considerations that favor the exclusion of the party himself from testifying ? Litigation from the standpoint of the citizen is not to be desired; it entails expense upon the party and upon the community, and often engenders feelings in the breast of the litigant that are damaging to him, and prevent a healthy development of true character. Whatever, therefore, tends to prevent litigation and to enable persons to adjust their differences outside of the court-house, is desirable. At leası, any rule that tends to prevent a disagreement as to the facts seems to be on the side of conservatism. If, therefore, men were preadvised that, in the event of litigation, neither should be heard in court in his own behalf, would they not be very careful in their business engagements to have all matters of fact, as far as possible, reduced to writing, and thus not left to the treachery of human memory, influenced by all the passions of selfishness and love of gain ? Does not the same argument that calls for the maintenance of the Statute of Frauds call for some rule that would require men to be more careful in their business affairs ? To say the least of it, ought not the party, when an issuable defence is filed on oath, be required to corroborate his testimony by other proofs ? Would such a rule work hardships ? Would it not tend to make men more careful ? Would not some such rules aid in the discovery of truth, and would not they approach pure sources ? Under the law now, a judge, if related even within the fourth degree, or if he has any interest whatever in the result of the suit, is disqualified from presiding and deciding a pure question of law. A juror, if related to either party, is disqualified from serving; and yet a party whose greatest interest is at stake, whose financial condition depends upon the verdict, can relate evidence which the law says is sufficient Ought he not to be required to furnish other proof? True, the rule is relaxed in criminal cases; but does not our law go to great length when it says the bare statement of the defendant, not under oath and not under cross-examination, may be accepted instead of the sworn statement of a person not interested ?
It is a very significant fact that, as early as June term, 1867, the very first case that reached the Supreme Court under the act of 1866, was where a party defendant sought to sustain the plea of failure of consideration by his own testimony, the party plaintiff being dead. The test of its wisdom is to be found in its practical workings. Will any one deny that its tendency is to promote litigation ? Do not the records of the courts of this State show a large increase in the number of cases since 1866 over those brought prior to that time? Even a casual examination of the reports will show the truth of this statement. Would not men settle many of their differences without going to court but for the invitation of this Act which says : Come ye, whosoever will may come; come and swear, and be heard ? Will it be contended that substantial justice was largely denied under the law as it existed prior to the Act of 1866 ?
But we must forbear further discussion of this most entertaining subject. We are fully aware that we have imperfectly discussed this question, and have only suggested a few of the many points that could be made in favor of a modification of the evidence laws of this State.
ATLANTA, GA., August 3d, 1887.
Aug. 25. Balance of cash on hand, as per the last annual statement.
$1,385 77 Cash received during the present fiscal year, as per schedule herewith filed.
2 25 3 00 54 00 2 00 2 00 5 00 50 00
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