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§ 1. Evidence a phase of judicial procedure. Law in general consists of two great branches: substantive law, which deals with the rights of persons, and with conduct which is an infringement of such rights; and adjective law, which deals with the methods of enforcing rights, and punishing and preventing their infringement. Inasmuch as it is the courts from which the law of the land prescribes that redress shall usually be sought, whenever legal

rights are impaired, adjective law really signifies the procedure of the courts. Like the rules of tennis or bridge whist, it prescribes the rules according to which the serious game of maintaining legal rights is played. Of this adjective law, Evidence is a part.

§ 2. Relation of evidence to pleading. It is important to note the relation between evidence and pleading, another branch of adjective law which is treated elsewhere in this volume (1). Pleading precedes evidence. It consists of the formal stateinents of the parties, now made in writing before the trial, by which their positions are set forth and the exact issues of fact between them are disclosed. The function of evidence is to resolve those issues in favor of one party or the other. Let us suppose a case in which A sues B for the alleged contract price of a horse. B in his plea (answer) avers that the horse was warranted to be sound, but it proved to be lame. The issue then raised by the pleadings is as to the animal's soundness. If, on the trial, C testifies that he saw B driving the horse after A avers that he delivered it, and the horse showed no limp or halt but drew the carriage in which B was driving with style and speed, that is evidence which should help the jury to decide the issue of soundness in favor of the seller. On the other hand, if B testifies that, although the horse usually started smartly, it always limped shortly after, that would be testimony tending toward a contrary conclusion. In another place we shall have something to say about the effect of conflicting testimony, and the determination in such a case of where the truth lies. The point to

(1) See the article following in this volume.

note here is that the evidence follows the pleadings and is confined to the issues which the pleadings have made.

§ 3. Evidence limited by the pleadings. It is a consequence of this rule, that evidence cannot be introduced to refute allegations in the pleadings of one party, which the other party by his pleadings has admitted, either expressly or by implication. For instance, if, in the case put, B pleads that, although the horse was delivered, it was unsound; or, if he merely avers the unsoundness, he cannot on the trial offer evidence of non-delivery, because A, in his declaration filed as the first pleading in the case, must have alleged that the horse was delivered, and B, not questioning the fact of delivery in his plea, will be deemed to admit it. What a party admits by his pleadings, he cannot afterward deny by his evidence. Otherwise there would be no end to the matters which might be gone into on the trial, and the whole object of pleading, which is to simplify the issues and also to apprise the parties on which points to prepare for trial, would be lost.

§ 4. Evidence limited by admissions in open court. Sometimes, at the trial of the case, one party or the other, either to expedite the trial or because he is convinced of some one or more facts and deems it useless to deny them, will admit allegations of the other. Such admissions made in open court, or sometimes by a stipulation or written statement signed by the parties or their attorneys and filed in court, are binding, to the same extent as admissions in the pleadings. They have the effect of excluding evidence as to the points which they cover, and confining it to those points which are actually in dispute.

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