PREFACE.

The primary purpose of the author in the preparation of this work is to present in a concise and clear narrative a reasonably comprehensive statement of the rules and principles of the existing law of evidence, for the use of students of law pursuing their studies in law schools or elsewhere. Though this is the main object of the work, the author is not wholly without hopes that it may also be of some service to the profession; and with this end in view a full citation of the most recent and most important cases has been made, which, with a carefully prepared topical and analytical index, will, it is believed, facilitate the convenient use of the book in many, if not in all, the exigencies of practice.

In order to secure conciseness it was found necessary to omit the detailed discussion of many things which, though interesting to the historical investigator or antiquarian, are obsolete and useless to the student. The author has not hesitated, however, when the occasion seemed to demand it, to discuss dead or obsolete law if the discussion is essential to a proper elucidation or understanding of the law of the present.

The evolution of the law of evidence from a mass of arbitrary and inadequate rules, based upon the conservatism and prejudice which could see nothing but good in the past, into a well-reasoned and flexible system of jurisprudence adapted to the demands of the spirit of a progressive age, may be attributed to a variety of causes. The application of the principle of logic to the law of evidence, resulting from the labors

of Bentham and his followers, doubtless had much to do in exploding the theory propounded by some of the earliest writers, that it was not only useless but absolutely harmful to seek to find a reason for any of the rules of evidence. So, too, coincident with the process of rehabilitation and evolution which has been going on in the law itself as the result of its development along logical lines and the operation of public opinion acting through a progressive and enlightened judiciary, may be considered the express statutory changes which have been made and some of which are embodied in the codes of procedure which exist in many of the states.

Other influences as well have been at work. The spread of popular education, the vast increase in and the new uses which have been found for wealth, the progress of scientific investigation, the application of newly-discovered scientific principles to every day-affairs, and the extensive use of machinery for purposes of transportation and manufacture, have all combined to bring about great changes in the law and particularly in the law of evidence.

The result of all this is, that while the law of evidence has been rendered more logical and better adapted to the demands of a progressive social state, many questions have been cast into the back-ground which fifty years ago were of the utmost importance. On the other hand, other subjects and questions have been brought forward for the consideration of the student or attorney, and for discussion in the forum.

Accordingly it will be found that, while some matters which are treated by the older authorities at some length receive only cursory attention in this volume, leaving the reader to pursue his investigations of the details regarding them in the authorities cited, other departments of the law of evidence as, for example, expert and opinion evidence, res gestæ, relevancy, the statutory incompetency of interested witnesses to testify to personal transactions with a decedent,

privileged communications to doctors, attorneys and clergymen, the inspection of persons and things by the jury, comparison of handwriting, the use of pleadings as evidence, stipulations, objections to evidence, etc.,- have received the full consideration their modern importance demands.

In citing the most recent cases the author has endeavored to give the citation from the state report as well as that from the National Reporter system. In many cases where it was not practicable to give the state report citation in the notes, it will be found appended to the case in its proper place in the table of cases. Where it is not given in the table of cases, the reader may feel assured that the case has not been reported by the state reporter up to the time that this work goes to press.

Trusting that his work may prove of value in lightening the labors of practitioner and student, and that though either may not find in these pages a solution for every possible or conceivable problem with which he may be confronted, yet, believing that what is found will neither mislead nor confuse, the author presents his work to the indulgence of the public. H. C. UNDERHILL.

59 REID AVE, BROOKLYN, N. Y.,

September 10, 1894.