EVIDENCE, CIRCUMSTANTIAL. The proof of facts which usually attend other facts sought to be, proved; that which is not direct evidence. For example, when a witness testifies that a man was stabbed with a knife, and that a piece of the blade was found in the wound, and it is found to fit exactly with another part of the blade found in the possession of the prisoner; the facts are directly attested¹, but they only prove circumstances, and hence this is called circumstantial evidence.

2. Circumstantial evidence is of two kinds, namely, certain and uncertain. It is certain when the conclusion in question necessarily follows as, where a man had received a mortal wound, and it was found that the impression of a bloody² left hand had been made on the left arm of the deceased, it was certain some other person than the deceased must have made such mark. 14 How. St. Tr. 1324. But it is uncertain whether the death was caused by suicide or by murder, and whether the mark of the bloody hand was made by the assassin, or by a friendly hand that came too late to the relief of the deceased. Id. Vide Circumstances.

EVIDENCE, CONCLUSIVE³. That which, while uncontradicted, satisfies the judge and jury it is also that which cannot be contradicted.

2. The record of a court of common law jurisdiction⁴ is conclusive as to the facts therein stated. 2 Wash. 64; 2 H. 55; 6 Conn. 508, But the judgment⁵ and record of a prize court is not conclusive evidence in the state courts, unless it had jurisdiction of the subject-matter; and whether it had or not, the state courts may decide. 1 Conn. 429. See as to the conclusiveness⁶ of the judgments⁷ of foreign courts of admiralty, 4 Cranch, 421, 434; 3 Cranch, 458; Gilmer, 16 Const. R. 381 1 N. & M. 5 3 7.

EVIDENCE, DIRECT. That which applies immediately to the fadum probandum, without any intervening process; as, if A testifies he saw B inflict⁸ a mortal wound on C, of which he, instantly died. 1 Greenl. Ev. §13.

EVIDENCE, EXTRINSIC⁹. External evidence, or that which is not contained in the body of an agreement, contract, and the like.

2. It is a general rule that extrinsic evidence cannot be admitted to contradict, explain, vary or change the terms of a contract or of a will, except in a latent ambiguity¹⁰, or to rebut¹¹ a resulting trust. 14 John. 1; 1 Day, R. 8; 6 Conn. 270.

EVOCATION¹², French law. The act by which a judge is deprived of the cognizance of a suit over which he had jurisdiction, for the purpose of conferring on other judges the power of deciding it. This is done with us by writ¹³ of certiorari.

EWAGE. A toll¹⁴ paid for water passage. Cowell. The same as aquagium. (q. v.)

EX CONTRACTU. This term is applied¹⁵ to such things as arise from a contract; as an action which arises ex contractu. Vide Action.

EX DELICTO. Those actions which arise in consequence of a crime, misdemeanor, fault, or tort; actions arising ex delicto are case, replevin, trespass¹⁶, trover. See Action.

EX DOLO MALO. Out of fraud or deceit. When a cause of action arises from fraud or deceit, it cannot be supported: Ex dolo malo, non oritur actio.

EX AEQUO ET BONO. In equity¹⁷ and good conscience. A man is bound to pay money which ex oequo et bono he holds for the use of another.

EX MERO MOTU. Mere¹⁸ motion of a party's own free will. To prevent injustice¹⁹, the courts will, ex mero motu, make rules and orders which the parties would not strictly²⁰ be entitled to ask for.