EVIDENCE AND PRACTICE - The Law Mind Legal Dictionary

EVIDENCE AND PRACTICEAuthored

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Definition

Evidence and practice, as a combined heading, refers to the body of procedural rules and doctrines governing how evidence is gathered, presented, and weighed in legal proceedings — and the specific customs and norms of practice that apply within a given court or proceeding type. The pairing of the two terms signals that evidentiary rules cannot be understood in isolation from the procedural context in which they operate: the same underlying fact may be admissible or inadmissible, dispositive or merely persuasive, depending entirely on the forum, the proceeding type, and the procedural posture of the case.

The term appears most often in older legal literature as a chapter or treatise heading rather than as a standalone legal term of art. In that usage, it signals discussion of:

1. THE RULES OF EVIDENCE: The standards governing relevance, admissibility, competency of witnesses, documentary proof, hearsay, and the weight accorded to different categories of proof.

2. PRACTICE: The procedural customs, court rules, and established norms that govern how parties actually present, contest, and develop evidence within proceedings — including discovery practice, examination of witnesses, and the mechanics of introducing exhibits.

3. THE INTERSECTION: The doctrines that arise specifically where evidentiary rules and procedural practice meet — such as the effect of pleadings on proof obligations, the treatment of admissions, and the standards that apply in equity proceedings versus proceedings at law.

Common Confusion

Evidence and practice are frequently treated as synonyms or collapsed into a single subject in older treatises, but they are distinct. Evidence law concerns the admissibility and weight of proof. Practice concerns the procedural mechanics of litigation. A researcher who conflates the two may misread historical sources: a treatise "on evidence and practice" may address court custom and local rules as much as formal evidentiary doctrine, and those two components can diverge sharply between jurisdictions and eras.

Why It Matters in Research

The primary research trap with this term is its status as a heading rather than a term of art. In Bouvier and similar historical sources, "evidence and practice" often appears as an organizational label over a cluster of doctrines that modern law has disaggregated into separate bodies — the Federal Rules of Evidence, the Federal Rules of Civil Procedure, state practice acts, and equity-specific rules. A researcher using historical sources must identify which sub-doctrine is actually at issue rather than treating the heading as a unified body of law.

The equity-law distinction embedded in Bouvier's entry is particularly important. The excerpt notes that the rules of evidence in equity proceedings are "in general, similar to the rules of evidence in cases at law" but with significant exceptions — most notably the treatment of the defendant's sworn answer as evidence on the defendant's behalf, to the extent it is responsive to the bill for discovery. This rule has no modern counterpart in most American proceedings, where discovery responses and pleadings do not carry evidentiary weight in the same way. Researchers working in pre-merger equity materials (pre-1938 in federal court, and varying dates in state courts) must account for this distinction carefully.

The corpus connections here extend in two directions. First, toward administrative and regulatory proceedings, where evidence rules are often relaxed or modified by statute or agency rule — the formal law-equity distinction has been replaced by a different gap between Article III court practice and administrative practice. Second, toward professional practice contexts, where "practice" carries its own meaning as the exercise of a licensed profession, and where evidence of what constitutes standard practice becomes substantively significant rather than merely procedural.

Historical Dictionary Support

Bouvier's treatment of evidence and practice is brief and appears as a transitional or introductory passage rather than a full-length definition. The excerpt preserved in the corpus confirms the classical equity rule: a sworn answer by the defendant, to the extent it responds to calls in the bill for discovery, constitutes evidence for the defendant and controls unless overcome by more than the testimony of a single witness. This is the famous "one witness rule" of equity, under which a complainant could not defeat a responsive sworn answer merely by the testimony of one witness; something more — a second witness, corroborating documents, or strong circumstantial evidence — was required.

Bouvier does not fully develop what "something more" means, and this incompleteness is characteristic of the entry as preserved. Historical researchers should supplement Bouvier with Story's Commentaries on Equity Pleadings and Greenleaf on Evidence for more complete treatment of the equity evidence rules. Modern dictionaries do not address this rule because it was effectively abolished with the merger of law and equity under the Federal Rules of Civil Procedure (1938) and corresponding state reforms.

What historical dictionaries generally do well is preserve the procedural texture of evidentiary rules as they actually operated in practice — the connection between pleading and proof, the significance of responsive versus non-responsive portions of an answer, and the role of the bill for discovery as an evidentiary mechanism. What they miss is any treatment of the modern statutory and rules-based framework, the constitutional overlay (confrontation, due process), and the administrative law context.

Jurisdictional Note

The equity-specific evidence rules described in historical sources survive in modified form in a small number of states that maintain separate equity courts or equity dockets. In most U.S. jurisdictions, the merger of law and equity has rendered the classical "answer as evidence" rule obsolete, though analogous issues arise in the treatment of verified pleadings, admissions in pleadings, and interrogatory answers offered at trial.

Encyclopedia Cross-Reference

The Law Mind Torts & Personal Injury Encyclopedia: Negligence — Custom and Industry Practice as Evidence of Standard (torts_11). For the use of professional and industry practice as substantive evidence, particularly in negligence contexts where what practitioners customarily do bears on the standard of care.

The Law Mind Administrative Law & Government Encyclopedia: Scope of Practice Disputes and Unauthorized Practice (admin_116). For evidence and practice questions arising in administrative proceedings, including the modified evidentiary standards that apply outside Article III courts.

EVIDENCE AND PRACTICEmain

Bouvier's Law Dictionary • 1928

The rules of evidence, except as to the effect of the an- swer and the taking of the testimony, are, in general, similar to the rules of evidence in cases at law. But to this there are ex- ceptions. The answer, if made on oath, is evidence for the defendant, so far as it is responsive to the calls of the bill for discovery, and as such it prevails, unless it is overcome by scmething more than what is equivalent to the testimony of one witness. If without oath, it is a mere pleading, and the allega- tions stand over for proof. If the answer is incomplete or improper, the plaintiff may except to it, and it must, if the exceptions are sustained, be so amend- ed as to be made sufficient and proper. The case may be heard on the bill and an- swer, if the plaintiff so elects, and sets the case down for a hearing thereon. If the plaintiff desires to controvert any of the statements in the answer, he files a replication by which he denies the truth of the allegations in the answer, and testi- mony is taken. The testimony, according to the former practice in chancery, is taken upon inter- rogatories filed in the clerk's office, and propounded by the examiner, without the presence of the parties. But this practice has been very extensively modified. If any of the testimony is improper, there is a motion to suppress it. The case may be referred to a master to state the accounts between the parties, or to make such other report as the case may require; and there may be an examination of the parties in the master's office. Ex- ceptions may be taken to his report. The hearing of the case is before the equity judge, who may make interlocutory orders or decrees, and who pronounces the final decree or judgment. There may be a rehearing, if sufficient cause is shown. At the present day, wherever equity forms are used, the proceedings have be- come very much simplified. The system of two distinct sets of tri- bunals administering different rules for the adjudication of causes has now been changed in England. By the Judicature Acts of 1873 and 1876, the courts of law and equity were consolidated into one Supreme Court of Judicature, in which equitable claims and defences are recog- nized in all proceedings to the same effect as a court of chancery would have recog- nized them before the passing of the act. Equitable remedies are substantially ap- plied. In America, the federal courts have equity powers under the constitution, where an adequate remedy at law does not exist; R. S. §723; 140 U. S. 105; 141 id. 656; 138 id. 146. The adequate remedy at law, which is the test of the equitable ju- risdiction of the courts of the United States, is that which existed when the ju- diciary act of 1789 was adopted, unless subsequently changed by congress; 121 U. S. 201. The equity jurisdiction con- ferred on the federal courts is the same that the high court of chancery in Eng- land possesses, is subject to neither limita- tion nor restraint by state legislation, and is uniform throughout the different states of the Union; 150 U. S. 202; 120 id. 130; 2 Sumn. 612. Courts of chancery were constituted in some of the states after 1776: and in Penn- sylvania, for a short time, as early as 1723, a court of chancery existed; see Rawle, Eq. in Penna.; and in most of the colonies before the revolution; Bisph. Eq. § 14, n. At the present time, distinct courts of chancery exist in very few of the states. In the greater number chancery powers are exercised by judges of common-law courts according to the ordinary practice in chancery. In the remaining states, the distinctions between actions at law and suits in equity have been abolished, but certain equitable remedies are still ad- ministered under the statutory form of the civil action. See Bisph. Eq. § 15. It has been claimed that Pennsylvania was the first state to administer equity through common-law forms; but in a recent report to the Texas State Bar Association it is said: "Of one fact there can be no doubt, viz., Texas was the first state in the Union, which was dominated by common-law people and lawyers, to reject the common-law form of pleading and practice when the issue was raised between that system and the civil- law system; and Texas was unquestionably the first state in the American Union con- trolled by common-law principles to abolish the distinction between law and equity in the enforcement of private rights and re- dress of private wrongs." Ann. Rep. 1896. For a very comprehensive reference list of text-books and periodical literature on Equity Jurisprudence, Pleading, and Prac- tice, see the admirable catalogue of the St. Louis Law Library, court-the nature and extent of which sys- tem cannot be defined in a single sentence. Bispham, Prin. of Eq. 10th ed., p. 1. The term "equity" as descriptive of an important body of English law, has an essentially technical signification, and its precise and definite meaning when so used is clearly distinguishable from that which it bears in its

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