EVIDENCE. 



EVONYMINK. 



receivable ; and, as there are no degrees of superiority in secondary 

 evidence, this may be either oral or written. 



A numerous list of exceptions to this rule has been created by statu- 

 tory provision, making examined or certified copies of various public 

 documents, registers, and legal proceedings, evidence of the contents 

 nf the originals ; and BO much has public convenience been consulted 

 by this exception, that parliament consented to the insertion of a 

 general provision in the Evidence Act (14 & 15 Viet. c. 99), greatly 

 extending the range of this privilege. 



It is often laid down as a distinct rule in the law of evidence that 

 l>orol testimony is not admissible to contradict, vary, add to, or sub- 

 tract from the terms of a valid written instrument. This, if not a 

 branch of the rule in respect of beet evidence, certainly follows that 

 other with the necessary sequence of a corollary, and is its proper 

 complement. 



Upon this rule also the imperfection attending human transactions 

 has forced several exceptions. It is clear that instruments containing 

 technical words used technically, or common general words used in a 

 peculiar and local sense, and contracts so drawn up as to leave unex- 

 pressed, but intentionally implied, the usages of a particular trade, or the 

 customs of an ascertained locality, would be misconstrued, if construed 

 at all, without parole evidence of such use, usages, and customs. But 

 if the effect of such parole evidence when given be inconsistent with 

 the terms of the writing, the nev.- matter wifi be rejected by the court, 

 as being expressly excluded by the document, and this will be con- 

 strued without extraneous assistance, as containing the full expression 

 of the intention of the parties. Evidence of any subsequent agree- 

 ment of the parties is only admissible to contradict or vary a written 

 instrument when it is in a form of equal solemnity with that which is 

 required by the law in respect of the instrument to be varied or con- 

 tradicted. Parole contradictions, or additions to any written instru- 

 ment whatever, are altogether inadmissible when contemporaneous 

 with it. But this rule does not shelter fraud or illegality, so as to 

 debar from proving it by oral testimony ; it does not exclude verbal 

 evidence of mistake when relief therefrom is sought in equity ; it does 

 not shut out proof of the want of consideration for bills of exchange, 

 because that is only a presumption of law in their favour, and is not 

 expressed in the writing. 



It is a rule of evidence that hearsay is inadmissible as evidence oil 

 matters of private interest between party and party. By the rule 

 requiring testimony to be given under oath, such evidence as this 

 would be excluded, but not by this rule only. The uncertainty, first, 

 of what was said or done ; secondly, of what was meant thereby ; and 

 thirdly, whether the full meaning and entire truth were conveyed by 

 the words or acts, or both acts and words spoken to, must be a suffi- 

 cient ground for excluding this kind of evidence. Yet here too we 

 are obliged to take notice of a number of exceptions. 



In cases of homicide, and these only, although greater scope was given 

 to it in earlier times, exception, we have seen, is now made in favour of 

 the dying declaration of the injured person, when the circumstances of 

 the injury are the subject of the statement. The apprehension of 

 death, followed afterwards by that event, is an indispensable condition 

 i if the admissibility of the declaration, as forming an equivalent to the 

 sanction of an oath. And considering that the events are likely to be 

 recent, and the impressions of them painfully emphatic, whilst the 

 words of the statement are naturally presumed to be sobered down 

 to the truth by the solemn apprehensions of approaching dissolution, 

 it is not unreasonable to believe that such a declaration satisfies the 

 adjuration addressed to all witnesses, and states the truth, the whole 

 truth, and nothing but the truth, touching the matter in question. But 

 if the declaration be such, that it appears to be incomplete, and that a 

 modification was intended but not expressed, it will not be received in 

 evidence. 



Another exception to the rule is made in favour of entries in books 

 against the pecuniary or proprietary interests of the person who made 

 them, and is since dead. It was contrary to his interest to have made 

 them at the time, and it is essential to this admissibility that death 

 should have previously removed him from all possibility of personal 

 interest in the use of them as evidence. There is this, however, which 

 is remarkable about the effect of such entries, that they are admitted 

 as evidence, not only of the fact which forms the main purpose of their 

 existence, for instance that a pecuniary claim has been satisfied, but 

 of what is incidental thereto, for instance of the facts on which the 

 claim itself was grounded. 



Entries made in the course of business or the routine of office, 

 when they are contemporaneous with the events which they record, 

 and the person who made them is since dead, form another exception 

 to the general rule excluding hearsay as evidence. But these entries, 

 unlike those already referred to, are evidence only of that which 

 it was the business of the person making them, to record, and 

 more. The routine of business, the absence of sinister motives, 

 the cognisance which others have of the same facts and entries opera- 

 ting on such a person as a cheek, and the powerful interest which he 

 usually has in being correct, form together no weak argument for the 

 admissibility of such evidence. The effect of it when admitted will 

 be indefinitely varied by the existence or absence of corroborating 

 circumstances. 



Another general exception to this rule admits heartay as evidence on 



questions of public and quasi public interest. In this general descrip- 

 tion we include such matters as a claim of a public highway, right of 

 common pur cause of vicinage, manorial customs, and questions of pedi- 

 gree, which when once involved in doubt, either from the absence of 

 written documents, or the ambiguity of their contents when they exist, 

 are scarcely susceptible of any other description of evidence. Even in 

 these cases, however, the evidence admissible is not hearsay indis- 

 criminately originated in any quarter, or at any period of time. \\V 

 have already ascertained the limit placed upon it in respect of time. 

 And in respect of source, it is only those, whose interest in the rlaim 

 or right engaged them to inquire, and gave them opportunity of 

 knowledge on the subject, that are recognised as competent to be ;u r 

 of this kind of tradition which the courts are obliged to receive in nuch 

 cases. The effect of that rule is to define the circle, from which 

 hearsay is derivable, by the range of legal interest possessed in tin- 

 matter in question, so that in pedigree cases, for instance, the tradi- 

 tion of blood-relations only is receivable in evidence. This kind of 

 interest which is thus recognised by the law as the condition on which 

 depends the admissibility of hearsay, would entirely derogate from 

 the worth of the evidence when admitted, if that other rule which 

 has been referred to did not exclude all hearsay originated at a period 

 subsequent to that when the right or claim began to emerge as a 

 matter in difference. 



We have thus offered a compendious view of the chief principles 

 and rules of the English law of evidence, and for further details and 

 a full discussion of the subject we must refer to such writers as Taylor, 

 Phillips, Greenleaf, Best, and Starkie. 



EVIL EYE. It was an ancient superstition that certain persons 

 were endued with the power of injuring those on whom they cast a 

 hostile or envious look. The eyes of such persons were supposed to 

 dart noxious rays on every object on which they were fixed. This 

 power of injuring with the eye was called Jiaacama (BaffKavia) by the 

 Greeks, and Fascinatio by the Romans. Plutarch ' Symposiacs,' lib. v. 

 quest. 7, states, on the authority of Philaretus, that the Thyl>icnx 

 who inhabited Pontus were deadly, not only to babes, but to men 

 grown, and that whomsoever then- eye, speech, or breath, would reach, 

 were sure to fall sick and pine away. Several writers who have 

 collected 'the testimonies of the ancients concerning it (as Potter, 

 ' Archieologia Grscca,' lib. ii. c. 18, and Alsarius, 'De Fascino,' in 

 ' Gncvii Antiq. Rom.,' torn. xii. p. 885), may be consulted for particu- 

 lars. Those who enjoyed great prosperity, or met with any extra- 

 ordinary good fortune, and such as were too much elated by praise and 

 flattery, were more particularly liable to the effects of fascination. 

 Hence when the Romans praised any thing or person, they used to odd, 

 Prafanni or Prafadne dixerim, to avert any fascination that might 

 ensue, and to prove that their praise was sincere. 



It is remarkable that the same superstition prevails to the present 

 day in several parts of the world : even in the northern part of our 

 island, and in Ireland. In Greece it is at present called tatu mat! (naito 

 /JOTI), and its effects are averted by spitting, in the same manner as 

 was practised by the' ancients against fascination (Theocr., ' Idyl.' vi. 

 39) and ill omens of every kind. In Italy it is called malocchio, and 

 among the lower orders of people its effects are supposed to be very 

 powerful and fatal. When praise is bestowed on beauty, riches, or any 

 other advantages, the person praised immediately exclaims, " se inol- 

 occhio non vi fosse," from an apprehension that the praise may not be 

 sincere, but proceeds solely from a malicious intention to injure. This 

 exclamation is accompanied with a sign of the hand, or by holding up 

 pieces of coral, shells, or various kinds of stones worn as amulets. 



The belief in fascination is extremely ancient, and in the opinion of 

 some is connected with the story of Medusa and the Gorgons, whose 

 eyes caused immediate destruction. From this source the superstition 

 of the evil eye is probably derived. 



Virgil alludes to this superstition in his third Eclogue : 



"Xcscio quis teneros oculus mini fascinat agiios." 



Scot, in his ' Discovery of Witchcraft," has one or two passages 

 relating to it. He says, p. 35, " The Irishmen affirm that not only their 

 children but then- cattle are (as they call it) eye-bitten when they fall 

 suddenly sick." It is likewise mentioned in Martin's ' Description of 

 the Western Islands of Scotland," in Heron's ' Journey," vol. ii. p. 228, 

 and in several volumes of the ' Statistical Account of Scotland," as still 

 believed there. 



" Nothing," says Dallaway, in his ' Account of Constantinople," 4to. 

 Lond. 1797, "can exceed the superstition of the Turks respecting 

 the Evil Eye of an enemy or infidel. Passages from the Koran arc 

 painted on the outside of the houses, globes of glass are suspended from 

 the ceilings, and a part of the superfluous caparison of then- horses is 

 designed to attract attention, and divert a sinister influence." 



Lane, in his 'Modern Egyptians' (1836), testifies to the ^< 

 belief in the ill-effects of the evil eye still prevailing in Egypt, and 

 details the superstitious precautions taken to guard against it. 



EVIL, KING'S. [SCROFULA.] 



EVOLUTE. [INVOLUTE and EVOLUTE.] 



EVOLUTION. [INVOLUTION and EVOLUTION.] 



EVOLUTIONS. [MANOEUVRE.] 



EVONYMINE. A crystalline, bitter, and neutral non-azotised 

 substance, found in the Eroaymta europ&ut. 



