instigating motive, are admissible.(h) So for uttering forged notes or counterfeit coin, evidence of other utterings has been admitted, though not charged on the record. (i) In another case, the judge in his discrecretion refused it.(k)

In misdemeanors, distinct offences, when charged, may be proved ;(7) but it is otherwise in felonies.(m)

The identity of the defendant must be established. For this purpose the attention of the witness may be directed to the person in court, and he may be asked if that is the person of whom he has spoken.(n) Identity is a question for the jury.(0)

Negative and affirmative averments.] In indictments on statutes, where an exception or proviso is mixed up with the description of the offence, then if the subject of the averment relate to the defendant personally, or is peculiarly within his knowledge, the prosecutor need not prove the negative, but the defendant must prove the affirmative as matter of defence. If, on the contrary, the subject of such averment relates personally to the prosecutor, or be peculiarly within his knowledge, (or, at least, as much so as in that of the defendant,) the prosecutor must prove the negative. (p) Thus, on an indictment for selling ale without a license, it lies on the defendant to prove his license.(q) Where an act is required to be done by any person, the law presumes that done which ought to be done, and throws the burthen of proving the negative upon the party who insists on it.(r)

Presumptions of law, and facts of which the courts ex officio take notice, without proof, need not be proved. (s)

Opinions.] In general, mere matter of opinion is not evidence; but the opinions of competent judges, upon questions of skill, judgment and science, are admissible. Thus, where the defence is insanity, a witness of medical skill may be asked whether such and such appearances proved by other witnesses are not, in his judgment, symptoms of insanity. But it is doubted if he may be asked whether, from other testimony given, the act with which the prisoner is charged is, in his opinion, an act of insanity; for that is the very point before the jury to decide. (t) A physician who has not seen the patient may, after hearing the evidence of

others, be called to prove on oath the general effects of the disease described by them, and its probable consequences in the particular case.(u) But the opinions of witnesses as to the improbability of a blow having been given from which death ensued, judging from the relative positions of the parties as stated by witnesses, are not admissible in evidence. (v) So of opinions as to the age of a person from his appearance ;(w) and the like as to fraud or criminal intention. (x) Professional men are to state facts and opinions within the scope of their professions, not to give opinions on things of which the jury can as well judge. (y) Where the opinion of an expert is offered, the court may hear evidence first to ascertain whether he is an expert, and then allow the opinion to be given in evidence to the jury.(z)

In proving the laws of foreign countries also, the opinions of competent witnesses are admissible. The unwritten law of a foreign state may be proved by the parol evidence of witnesses possessing professional skill; but where the laws are in writing, a copy properly authenticated must be produced. (a) Thus, on a trial for abduction, a gentleman of the Scotch bar was examined, as to whether the marriage as proved by the witnesses would be a valid marriage according to the law of Scotland.(b) So, foreign unwritten laws, customs, and usages may be proved, and indeed must ordinarily be proved by parol evidence. The usual course is to make such proof by the testimony of competent witnesses, instructed in the law, under oath.(c)

CHAPTER II.

Written Evidence.

1. PUBLIC documents and records.

2. Private documents.

1st. Public documents and records.] Public statutes, the rules of the common law, and the general customs of the country are never required to be set forth in the pleadings or proved at the trial; because the courts are bound ex officio to take notice of them. And therefore when the printed copy of a public statute is produced at a trial, as is frequently the case, it is not to be deemed to be produced as evidence, but rather in aid of the memory of the court and jury.(a) The revised statutes may be read in evidence in all courts of justice and in all proceedings before any officer, board, or body in this state, provided there shall be annexed to the volume a printed certificate of the revisers or any two of them, or of the secretary of state, that such printed copy of the statutes is a correct transcript.(b)

The preamble of an act reciting that certain outrages had been committed in particular parts of the kingdom has been admitted to prove an averment in an information for a libel that outrages of that description had existed. (c)

Private statutes not concerning the public are considered as facts, not laws, and must be proved like other records of private rights, by examined copies; unless (which is frequently the case) a clause is inserted declaring that it shall be deemed and taken to be a public act, or that a copy printed by the public printer shall be admitted in evidence.(d)

The journals of the legislature may be proved by examined copies. The printed journals are not evidence. (e) The journals are in general evidence of the facts stated therein.(ƒ) But the resolutions of the house are not.(g)

Proclamations, addresses, and articles of war, printed by and shown to have been purchased of the public printer, prove themselves. (h) And recitals in a proclamation are evidence of the facts recited.(?)

Books and chronicles of public history are not admissible in order to prove particular facts or customs. (k) But they are evidence to prove a matter relating to the country at large, being the best evidence of which the subject is capable.(1)

An ancient map will be received as evidence where it has accompanied possession, and agreed with the boundaries as adjusted by ancient purchases; but not against the rights of persons not parties to the making of it.(m)

Records and proceedings in courts.] Records are of such authority that no evidence is allowed to contradict them ;(n) or to dispute the statement in a record, or to show that it has never been filed of record. (0) And in matters of general concern, as customs, tolls, public ways, &c. they are conclusive.(p.)

When a record is the gist of an issue in criminal cases in the same court, it should be produced; or if in another court, an exemplification under the seal of the court. (q.) When a record is not the gist of the issue, it may be proved by an examined copy, or sometimes by an office copy. (r) To make a copy sufficient, the record must be complete. Neither the minute book of the clerk of the peace, nor of the proceedings at sessions, is a sufficient record. (s) The copy is to be proved by a person who has examined it throughout with the original.(t) It should appear that the original came from the proper deposit or custody :(u) but a copy of a copy is not evidence. (v)

An office copy in the same court and the same cause is equivalent to a record. (w) It is a general rule that an office copy authenticated by a person appointed for that purpose is good evidence of the contents of the original, without proof of its being an examined copy.(x) The indorsement by the officer on a deed enrolled is conclusive evidence of the date of enrolment.(y)

Verdicts.] No verdict can be given in evidence as binding on a per

son, unless he be a party or privy to it.(r) To prove that a trial was had, the nisi prius record, with the postea endorsed and regularly stamped and marked, was holden sufficient. (s) When a nisi prius record was produced, with the verdict endorsed thereon by the associate, without a postea, the associate stating that none could be, as a motion for a new trial was pending, it was received.(t)

Writs.] Where a writ is the gist of the action, it must be returned and proved as a record; but where it is only inducement, it may be proved by producing the writ itself, if it has not been returned.(u) Parol evidence, without producing the writ or sufficiently accounting for it, is not admissible.(v)

An affidavit is evidence as an admission on oath against him who made it. (w) When filed of record in a superior court, it should be produced or proved by an examined copy. If not so filed it should be produced, and parol evidence given of the swearing.(x)

An inquisition of lunacy is evidence against third persons, but not conclusive.(y)

Letters patent are proved by producing them, or an exemplification under the great seal, which is sufficient without further proof.(z)

Proceedings in chancery, though public matters, are not records, and of these copies may be given in evidence. (a) A bill in chancery is not admitted in courts of law to prove any facts either alleged or denied in the bill.(b) An answer will be evidence against the party ;(c) and against all persons privy to the party making it ;(d) but the answer of a guardian is no evidence against an infant, nor that of a trustee against his cestui que trust.(e) The answer may be proved by the production of the bill and answer, or of examined copies of them. (f) If the bill is proved to be lost, the answer alone may be read; (g) unless on an indictment for perjury in the answer. (h) An answer offered in evidence merely as an admission of the party on oath is sufficiently proved by an examined copy.(i)

Depositions in chancery are not in general admissible without proof of the bill and answer;(k) unless so ancient that no bill or answer can be