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e
A TREATISE
ON THB
LAW OF EVIDENCE.
BT
SIMON ^EENLEAF, LL. D.
EMEBITUS PSOFESSOR OF LAW IN HARYABD UNIYERSITT.
Qaorsnm enim leges inTenUa et sancito fnere, nisi nt ex ipsamm jmtitia
nnicniqne jus sunm tribnatur ? — Mascardus ex Ulfian.
VOLUME III.
5^BOSTON:
LITTLE, BROWN AND COMPANY
MDCCCLin.
-H
r
. '■i
i'
»4ARvr?D COLLLbE UtfiiAi<Y
f A- «- .'^ ..
^
X
' ;
Entered according to Act of Congress, in the year 1853, by
^ Simon Greenleaf,
tn the Clerk's Office of the District Court of the District of Massachasetts.
riverside, CAMBRIDGE:
FRI2ITED BT H. O. HOUGHTON AND GOMPANT.
ADVERTISEMENT.
It was the author's intention, as originally announced,
to include in this volume the subject of Evidence in Ec-
clesiastical Causes. But considering that the civil juris-
diction of the English Ecclesiastical Courts is, in this coun-
try, distributed in various modes among the civil tribunals
and is regulated chiefly by statutes, and that the spiritual
jurisdiction of those Courts has scarcely any legal counter-
part among us, he concluded, for the present at least, to aban-
don the design. The volume is therefore submitted, without
that appendage, to the candor of a liberal profession.
Cambridge, MassachnsettB,
Jane 15, 1853. '
CONTENTS.
PART V.
Of Evidence in Prosecutions foe Crimes at Common Law.
Section
General Principles 1-39
Accessory 40-50
Arson . . . . . . . , . 61-57
Assault 56-65
Barratry . 66-67
Blasphemy 68-70
Bribery 71-73
Burglary 74-83
Cheating 84-88
Conspiracy ' . . . 89-99
Embracery 100-101
Forgery 102-113
Homicide 114-149
Larceny 150-163
Libel . . 164-179
Maintenance 180 - 183
Nuisance 184-187
Perjury 188-202
Polygamy 203-208
Rape ......... 209-215
Riots, Routs, and Unlawful Assemblies . . • 21&-222
VI CONTENTS.
BecUon
Robbery 223-236
Treason 237-248
PART VI.
Of Evidence in Proceedings in Equity.
CHAPTER I.
Preliminary Observations 249 - 267
CHAPTER 11.
Of the Sources, Means, and Instruments of Evidence . 268 - 348
1. Things Judicially taken notice of and presumed 269 -272
2. Admissions . . . '. . . .273-294
3. Documents 295-311
4. Witnesses 312-327
5. Inspection in aid of proof 328 - 329
6. Further information required by the Court . 330 - 339
7. Evidence allowed on special order . • . 340 - 348
CHAPTER III.
Of the Exclusion of Evidence 349-369
1. Suppression of depositions before the hearing • 349 - 352
2. Objections at the hearing 353 - 369
CHAPTER IV.
Of the Weight and Effect of Evidence . . .370-385
1. Admissions 370-374
2. Testimony of Witnesses . . . . • 376-378
3. Affidavits 379-385
CONTENTS. Vll
PART VII.
Of Evidence in Courts of Admikaltt and Maritime Jurisdic-
tion.
CHAPTER I.
Section v
Preliminary Observations 386-401
CHAPTER II.
Of Evidence in Instance Causes 402 - 436
1. General Rules 402-408
2. Competency of Witnesses .... 409-416
3. Documents 417-432
4. Depositions 433-436
CHAPTER III.
Of Pleadings and Practice in Prize Causes . . . 437 - 443
CHAPTER IV.
Of Evidence in Prize Causes 444-461
1. In PreparcUario 444 - 450
2. Documents 451-453
3. Competency of Proof 454 - 456
4. Mode of taking Testimony .... 457
5. Presumptions 458-461
CHAPTER V.
Of Farther Proof 462-467
Vlll
CONTENTS.
PART VIII.
Of Evidence in Courts Martial.
CHAPTER I.
Preliminary Observations
Section
468 - 475
CHAPTER 11.
Of Evidence in Courts Martial
1. General Rules .
2. Attendance of Witnesses .
3. Competency of Witnesses
4 Examination of Witnesses
5. Depositions
6. Public and Private Writings.
476
476
485
487
490
495
497.
501
484
486
489
494
496
501
INDEX TO CASES CITED.
A.
Section
AbexigaYenny v, Powell 824, 345
Abrams v. Winshup
Ada (The)
Adams v, Fisher
V. Kelly
■ r. Porter
Addis 9. Campbell
Adeline (The)
Alam V, Jouraan
Aldrich r. Warren
Alexander (The)
Alexander Wise (The)
Alfred v. Watkins
Allen v. Mower
w. Rand
r. State Bank
346
427
298
172
278
295
395, 397, 442
354
94
463
407
286
285
351
383
Amory V. Fellowes 324,351
Amos V, Heatherby 287
Anderson v. The Common w'th 89
Ann and Mary (The) 407, 416
Anna (The)
Anna Green (The)
Anne (The)
Anne (The Lady)
Anon. V. Barrett
17. Brown
V. Groodwin
Antelope (The)
ApoUo (The)
Apthorp V. Comstock
Arabella (The)
Argo(The
Ariadne (The)
Arder v. Patterson
438, 445
442, 445, 447,
448, 461
454
407, 415
35
851
37
395
436, 446, 448
837
438
433
462
181
Armentrout v. Moranda
Armiter v. Swanton
Armsby v. Wood
Armstrong v. Brown
V. The State
Arundel v. Arundel
V. Pitt
Ashton r. Ashton
V. Parker
Askew V. The Poulterers
Atkins V. Palmer
V. Wycht
Atto. Gen. v. jBowman
r. Davison
V. Lock
r. Pierson
V. Sitwell
V. Thurnall
Co.
Attwood 17. Barham
At wood V. Harrison
Aurora (The^
Auditor v. Johnson
Austin V. Winston
B.
Babcock v. Smith
Bachelor v. Nelson
Bailey v. Blanchard
V, Stiles
Bailis V, Cochran
Baillie v, Butterfield
Haker v. Paine
Baldwin v. Elphinstone
Ball V. Townsend
Bamford v. Bamford
Section
166
817
871
320, 851
179
851
346
828
818
341
824
295, 297
25
341, 851
266
809
868
846
873
276
895
289
826
286
809
372
287
851
866
868
170
276
888
INDEX TO CASES CITED.
Section
Banert v. Day 851
Banes v. Little 363
Bank v. Farqucs 310, 331, 346
Bank, U. S., v. Daniel ^ 361
Barfield v, Kelley 310
Barker v. Birch 320
V. Dixie 294
V. Wyld 288
Barnes t;. Stuart 261,331
Barnett v, Nable 295
Baron Holberg (The) 407
Barraque r. Siter 289
Barrow v. Rhinelander 309
Barstow t;. Kilvington 363
Bartlett v. Gale 286
V. Gilliard 281, 370, 376
V. Wyman. 424, 426
Bas V. Steele 304
Batavier (The) 407
Baugh V. Ramsey 250
Bay ley t;. Hill 371
Beach v, Fulton Bank 345
Beachinall v. lieachinall 337
Bean v, Quimby 351
Beasley v. Magrath 278
Beebe v. Bank of N. York .318
Beckwith ». J^utler 290
w. Philby 123
Bedford v. Abercom 363
Belden v, Davies 274
Bell V, Davidson 320, 351
V. Jasper 318
Bellasis v. Benson 373
Belle Coquette (La) 414
Hello Corrunes (The) 395
Bellows V. Stone 363
helmore v. Anderson 824
Bennett v, Butterworth 257
. V. Lee 279
Benson v. Chester 314
V. Le Roy 315, 333, 371
Bemon (The) 461
Besant v. Richards 323
Best v. Holroyd 1 73
Betsey .(The) 415, 466
Betsey Caines (The) 405
Betts V. Badger 306
Biddulph V, iSt. John 289
Bigleston r. Grubb 366
Bignold V, Audland 384
Hilbie v. Lumley 20
Bishop V. Church 831
Bixby V. Franklin Ins. Co. 419
Blacker r. Phepoe 823
Blake v. Barnard 59
Section
112
407
299
53
371
810, 346
290,370,371
351
274
201
11
Bland v. The People
Blenheim (The)
Bligh t;. Berson
Bloss ». Tobey
Blount V. Burrow
Bloxton V. Drewitt
Boardman v. Jackson
Bogert V. Bogert
Boileau v. Rutlin
Boling V. Luther
Bostick V. The State
Boston (The) 395, 897, 398, 401,
403,412,414
Botsford V, Burr 365
Bothnea & Janstoff (The) 463, 464,
465
Bottomley v. U. States 357
Bourke v. Warren 1 74
Bowman r. Rod well 323
Hoyce r. Grundy ~ 362
Boyd V. M'Lean 365
Boyle V. Bentzon 459
Bradish v. Gee 373
Bradley v. Chase 357
V. Root 816, 318
361
Brainard v. Brainard
Branch Bank t;. Marshall
Brickell v. Hulse
Bridge ». Bridge
Brinckerhoff u. Brown
Brinley v. Whiting
British Linen Co. v, Drummond
Britt V, The State
Hromage v. Prosser
Brooks V. Adams
V. Cannon
V, Mead
Broom v. Beers
Brown v, Babcock
V. Beauchamp
V. Brown
V. Greenly
■ V. Lull
V, Mallett
V. Selwin
V. Thornton
Bulkier t;. Van Wyck
Bullock V. Koon
Burton v. Neville
Bush V, Livingston
Butler V. Elliott
Butterworth v. Bailey
V, Robinson
Byrne v. Frere
289
274
346
288
180
28
236
168
470
326
292
258, 259
304
180
289
318, 326
401, 423
187
866
28
287
196
299
290
318
291
329
346
INDEX TO CASES CITED.
XI
C.
Section
Cabell 0. Menrginson 384
Callaghan v, Itochfort 348, 350, 369
Callow V. Mince 336
Calverly v. Williams 361
Camp V. The State 214
Campbell v. Jones 182
V. Morrison ^ 385
V. Scousall 352
V, Sheldon
884
356
447
288
329
348
466
407
Carew r. Johnston
Carl Walter (The)
Carman p. Watson
Caman v. Bowles
Carlos t*. Brock
Carolina (The)
Carolus (The)
Carpenter v. Providence Insur-
ance Company 289
r. The State lyO
Carpmael v. Fowls 323
Carrington v. Carnock 343
Carter v. The Commonwealth 25
Cartwright v. Green 159
Castcl 17. Bainbridge 147
Catherine of Dover (The) 414,454
Cazenove v, Yaughan 351
Cecil V. Salisbury 279
Celt (The) 414
Chaffin V. Chaffin 285
Chalmer v, Bradley 340
Chamberlain v, Thompson 863
Chandler v, Brainard 351
Charitable Corp. v, Sutton 350, 351
Charlter v. Barrett 15
Charnley v. Dunsany 341
Chase v. Manhardt 283
Cheadle v. Buell 162
Cberiott 17. Foussat 420
Chester (The) 407
Chesterfield v. Janssen 254
Childrens v, Saxby 344
ChimelU v. Chauvet 381
Cbtpman v, Thonnpson 274
Cholmondeley v. Ulinton 34H
Christian v. Wren 342
Chubb 17. Westley 168, 174
Clark u. Grai^t 363
V. Henry 364
17. Jennings 310, 345
17. Mullick 28
17. Periam 356
17. Van Reimsdyck 287, 289,
318
Clarke t7. White 287
Section
Clary t7. Grimes 326
Clason 17. Morris 284
Cliibrd 17. Brandon 219, 221
Clinan r. Cooke 363
Cloutman v. Tunison 429
Coale 17. Chase 380
Cochran v. Cowper 276
Cockcrofl V. Smith 64
(yockerill 17. Cholmeley 345
Codrington i7. Shelbume ^278
Coffin 17. Jenkins 394, 395, 398, 429
— 17. Jones
Cognac (The)
Coke 17. Fountain
Coker i7. Farewell
Colby 17. Reynolds
Colcott 17. Maher
Cole 17. Gray
17. Hadley
Coleman i7. Lyne
Coley V. Coley
Collins 17. The Commonwealth
Colson 17. Bonzey
Colt 17. Howard
Columbine (The)
Comb 17. Pitt
Commonwealth 17. Andrews
r. Blanding
351
401
341
343
165
281
?78
274
276
346
94
419
376
404
78
152
173
168
89, 102
87
17. Bonner
17. Boynton
v. Bowden
17. Bo wen 40, 41, 50
17. Brown 79, 162
V. Buckingham 170
17. Call 86
17. Carey 106, 123
17. Carlisle 89
17. Chace 163
V. Chandler 103
17. Chapin 187
17. Chevalier 75
17. Clapp '165
17. Clark 65
17. Clue 37
17. Cook 37
V. Cooper 36
17. Cornish 194, 200
17. Crowninshield 90
17. Cullins 152
17. Cunningham 35
17. Davis 66, 67
17. DewiU 152
17. Drew 86, 123, 146
17. Easland 96
17. Eyre 61
v. Goddard 85
211
INDEX TO CASES CITED.
Section
Commonwealth v. Green 4, 147, 215
V. Hardy 25
V, Harley 90
. V. Harrington 2
V, Hay ward 104
r. Hearsey 84
r. Hill 110
r. Hopkins 186,187
17. Houghton 167
V, Humphries 229
V. Hunt 89, 90
V.James 162
V, Judd 89, 90
1?. Kingsbury 90
V, Kinney 88
V. Knapp 248
:. V. Ladd 108
; r. Lanigan 215
^^ V. Lewis 22
V. Martin 15
V. Merrill 88
V, Myers 82
V. Neal 7
v. Newell 74
17. Olds 37
V. Percival . m
. V. Peters * 35
V. Pierpont 89
v. Pollard 195, 198
V. Porter 179
V. Posey 51
V, Prisonkeeper 148
17. Purchase 87, 88
V, Eand 152, 158
V. Bidgeway 98
V, Roby 35, 36
— V, Rogers 6
V. Runnells 219
1;. Searlc 108, 110
V- Simmons 152
^1 V.Smith 106,118
V, Snelling 229
V. Springfield
V. Stearns
V, Stephenson
V. Stewart
143
15
76
186
210
84
— V. Thomas
— V. Thurlow
— V. Tibbetts 89, 90
— V. Trimmer 7, 161, 76
— V. Van Schaack 55
— u. Wade 10,51,67
— V, Ward 89, 90
— V. Warder 192
— V. Warren 84, 86, 89,
90, 98
Seciion
Commonwealth v. Webster 14, 25, 29
V. White 190
V. Whitehead 2
V. Whitney 106
V. Wilgus 86, 88
V. Wood 98
V. Woodbury 111
Comstock V. Apthorp 308, 828
Conn*. Penn 819
Consequa v. Fanning 809, 810
Con tee v. Dawson 855
Cook V. Beal
V. Field
V. Hughes
V. Ward
Cooke V, Curtis
Coolidge V. N. York Ins. Co.
Cooper V. Greeley
Coote V. Boyd
Cope V. Parry
Copeland r. Crane
V. Stanton
Corey v. Gerteken
Cotton V. Luttrell
Courtenay v. Hoskins
Cowan V. Price
Cowslade v. Cornish
Cox p. AUingham
r. Worthington
Crew r. Vernon
Crocker v. Franklin Co.
V. Lewis
Crook V, Dowling
Cropper v. Burtons
(yross V. Peters
Crosse v. Bedingfield
Crusader (The)
Gumming v.' Waggoner
Curling v. Townsend
64
46
168
170
496
419
164
866
318, 826
287, 289, 338
351
276
318
386, 351
355
388, 336
306, 346
828, 350
190
Curre v, Bowyer
Cushman v. Ryan
320
357
192
276
84
283
407
335
286
346, 347, 352
404, 413
D..
Dale V. M'Evers 288
V. Roosevelt 309, 341
Dalston v. Coatsworth 359
Dame v. Baldwin 162
Dame Catherine (The) 438
Dana v. Nelson 309
Dangerfield v. Claiborne 351
Daniel v, Mitchell 284, 289
Daniell «. Daniell 318
Dariing v, Staniford 347
Darston v. Ld. Oxford 871
Darwin v. Clarke 299
INDBX TO CASBS CITED.
XUl
Dayen v. Davers
David Pratt (The)
Davis V. Allen
— V. Gray
Dearie v, Southwell
De Lovio v. Boit
Dent V, Bennett
Denton v. Jackson
DeReimer v. Cantillon
DeTastet v. Bordenare
Dewitt V, Yatea
DeWolf V. Johnson
Dexter o. Spear
Diana (The)
Dias V. Merle
Dickenson v, Watson
Drie Gebroeders (The)
Dives V. Scott
Dixon V. Parker
Dodge V. Israel
Doe V. Morris
Doe V. Syboum 274
Dole V. Fellows 804
Domville r. Sollv 873
Doolitde V. Gookin 288
Dordrecht (The) 460
Douglass v.^vre 428
V. Holbert 818
V. The State 220
Dover, (The Countess of) 436
Drakefield v. Wilks 865
Dmry v. Connor 287
Duffield V, Smith 470
Dogan V. Gittinss 287
Duncan v. The Uoounon wealth 86
Section
811
898, 899, 410,
418, 424, 427
851
881
448
887
258
847
868
888
867
815
165
488, 442, 455
801
62
454
872
818
808, 851
107
Dunham v, Riley
V. Yates
Dunkin's case
Dunn V. Whitney
Dwight V. Pomeroy
£.
£. India Co. v. Donald
Eade v, Lingood
Eager v, Wiswall
Earle v, Pickin
Eastbum v. Kirk
Eckford v. De Kay
Edgworth v. Smith
Edwards v. Goodwin
Eenrbm (The^
Espleston v, Speke
Emer v. Elder
Elderton v. Lack
VOL. III. b
804
285, 287, 289
468, 480
872
250, 868
854
810, 841
296
823
885
314,817
809
333
408, 466
278
363
837
Section
Eleanor (The) 428
Eliza (The) 428
Eliza and Katy (The) 445
Elizabeth (The) 427
Elizabeth and Jane (The) 412
Elston V. Wood 278
Elliott V. Brown 64
Ellis V. Deane 810, 815, 816
V, Sinclair 888
Ellison V. Bellona 401
Embden (The) 461
Endraught (The) 461
Etches V. Lance 885
Etheridge v. Cromwell 183
Euphrates (The) 466
Evans v. Bicknell 250, 323
17. Cogan 275
V, Finch 81
Everard v. Warren 885
Ewer V. Ambrose 192
Exeter v. Exeter 868
Experiment (The) 448
F.
Falcon (The) 455
Famam v. Brooks 289
Farrer v. Hutchinson 299
Farquharson v. Balfour 296
Fenton v, Hughes 369
Fen wick v. Bdl 416
17. Read 296
Fenwicke t7. Gibbes 832
Fereday t7. Wiffhtwick 31 7
Ferrers t7. Shirley 274
Fernr v. Fisher 846
Field t7. Holland 288, 284
V, Jackson 385
Fihnerty t;. Tipper 168
Firkins v. Lowe 299
Fishe}! v. Bell 361
Fishmongers' Co. v, Robinson 274
Fitzgerald v. O'Flaherty 275, 295, 823
Flagg V, Mann
Fletcner v. Glegg
Flora (La)
Flore (La)
Flowerday t7. Collet
Flying Fish (The)
Follett t7. Weed
Forde v. Skinner
Forsigheid Hlie)
Forsyth v, Clark
Fortitudo (The)
Fortuna (The)
Fowler v. Fowler
Foy V. Foy
289
315, 838
442, 466
460
851
466
804
59
460
284
401
441, 445, 459, 466
866
866
XIV
INDEX TO CASES CITED.
Section
Francis's case 482
Franklyn v. Colqahoun 818
Freain v, Dickinson 326
Frederick (The Prince) 4d4
^ Freeinan v. Fairlie 289, 296
Friendschaft (The) 464
Frost V. Paine 182
Fry V. Wood 843
Fryrear v, Lawrence 287
Fullager v. Clark 254
Fuller V . Jackson 415
Fulton Bank v. Beach 286
V, Sharon Canal Co. 316
G.
Gaines v. Relf 257
■ r. Travis 401
Gainsford v. Grammar 292
Galen (The) 454
Gallagher v, Roberts 373
Gammell v. Skinner 399, 413
Gardner v. Moult 274
Gardiner v. Bowe 338
Garrow v. Carpenter 287
Garvey r. Uiboert 383
Gass V, Stinson 320, 336, 348, 350,
361
Gazelle (The) 407
George (The) 404, 449, 465, 467
Georgiana (The) 436
Geyger r. Geyger 304
Gibbs's case 468, 480
Gibbs V, Cook 326
r. Dewey 100
Gibbons v. Pepper 62
Gibson t;. Hunter 357
V. Jeyes 258
V. Tilton 383
Giles t;. The State , 29
Gillespie v. Moon 368
Gilpins V, Consequa 320, 324, 351
Girolino (The) 407
Glass V. The Betsey 387
Glynn v. Bank of England 250
Goddard v. Smith 66
Goldie v. Shuttleworth 293
Croodman v, Sayers 357
Goodnow V. Tappan 1 78
Goold V. O'Keefe 816
Gordon v. Crordon 343
Gosse v. Tracy 326
Gk)uld V. Wilhamson 289
Grower t;. Nowell 182
Graaf Bemstoff (The) 466
Grant v. Gould 468
Grant v. Naylor
Graves t7. Budgel
Gray v. Murray
Gray v. Russell
Green v. Groddaid
V. Hart
Greenaway v. Adams
Greenwood v. Parsons
Grey v. Sharpe
Griells t7. Gansell 324,
Grisham v. The State
Grotius (The)
Gyles ». Wilcox
H.
Secclon
457
809, 810
345
829
65
290
386
345
867
846, 347
184
454
829
Haabet (The) 445
Haight 17. Morris Aqueduct 289, 382
Hale V. Washington Ins. Co. 887
Hales V, Pomfret
Haley v, McPherson
HaU V, Hill
V. Maltby
V, Wood
Hallock o. Smith
Hamersley v. Lambert
Hammond v.
Handerside v. Brown
Hanly v. Sprague
Hannen v. £des
Hanson v, Crardiner
Hardcastle v. Shailo
Harden v. (jordon
Harding v. Greening
V. Handy
r. Stokes
V. Wheaton
Hardman v. Ellames
Hardy v. The State
Harlam v. Wingate
Harmony (The)
Harriet (The)
Harrington v. Harrington
Harris v. Harris
V, Insledew
Harrison (The)
17. Hodgson
Hart V. Ten Eyck
Harvey (The)
V, Alexander 315
Harwood v. Wallis 868
Haskill V. The Commonwealth 24
Hassenfrats v, Kelly 183
Hatch V. Hatch 258
Haven v. Foster 20
Haverfield v, Pyman 298
275
191
866
828
287
845
345
352
275
314
68,64
385
315
428, 427
170
838
72
828
298, 299
179
287
461
407
841
278
810
448
65
290, 338, 370
424
INBBX TO GASES CITED.
XV
Section
Hawes v. Bamford 880
Hawing v. Hawkins 818
V. Luscombe 278
Hawley v. Donnelly 380
Haws V. Hand 826
Hayes v. The People 21 1
Hay ward v. Carroll 815
Hazard (The) 466
Healey v. Jagger 346
Helmes V. Franciscns 814
Hendrick and Alida (The) 458
Henrick and Maria (The) 445
Henry v. Davis 864
Henry Ewbank (The) 412
Henslow v. Fawcett 72
Hepworth v, Heslop 888
Hess r. The State 15, 111
Higbee v. Baron 871
Higbie v. Hopkins 289
Higgins V. Connor 276
V. Mills 809
Hieginson r. Clowes 868
HilTr. Binney 282, 874
V. MuUer 286
— - — V, Thompson 885
Hillhouse v. Dunning 165
Hinch V. The State 201
Hinde v. Yattier 826
Hine v. Dodd 289
Hiram (The) 401
Hitchcock V. Skinner 826
Hoare v. Johnson 385
Hobart (The) 486
Hodges V. MuUikin 8 1 8
V, The State 169
Hodson V. Warrington 811
Hogan V. Delaware Ins. Co. 868
Ho^hton (The) 427
Hofden r. Heam 294, 882
Hollister v. Barkley 838, 8 7 1
HoUoway v. Liowe 180
Holmon v. Bank of Norfolk 318
22
372
469, 498
846
866
407,415
289
848
818
896
386
817
Vi Walden
Holtscomb V. Rivers
Home V, Bentinck
Hood r. Pimm
Hooley v. Hatton
Hope (The)
■ V, Evans
Hopkins v. Stump
Hopkinton v. Hopkinton
Hoppet (The)
Hough V, Williams
Hougham v. Sandys
Houseman v. The N. Carolina 895,
897
Section
Howard V.Bell 219
V. Braithwaite 388
Hoye V. Bush 128
Hozey v. Buchanan 419
HubeV V. Stainer 28
Hughes V. Blake 289
V. Gamer 289
17. Phelps 809
V, Ryan 880
Huguenin v. Baseley 253
Humphreys v. Pensam 841
Hunt V, Daniel 855
V. Rousmanier 287, 289, 861
Hunter (The) 408, 453
V. Wallace 289
Huntress (The) 456
Hurd V . Partington 315
Hurst V. Beach 366
Hutcheon v. Mannington 383
Hutchinson v. Sinclair 287
Hutson V, Jordan 395, 398, 418
Hyde V, Whitfield 385
Hvlton V. Brown 304
I.
Imason v. Cope 65
Indian Chief (The) 461
Ingram v. Mitchell 346, 347
Inskoe v. Proctor 368
Imham t;. Child 860, 364
Isabella (The) 424
Itinerant (The) 407
Ives V. Medcalfe 275
J.
Jackson v. Cator 885
V. Demont 188
V, Hart 289
V. Hill 183
V. Humphrey 201
». Kingsley 306
V, Petrie 885
V. White 427
Jalabert v. Chandos 863
James v, Johnson 364
Jay V. Almy 413
Jenks V. Lewis 401
Jenkins v. Bisbee 826
17. Eldredge 823, 336, 864
Jennings v. Carson 887
Jenny (The) 466
Jerome v, Jerome 864
Jobson V. Leigh ton 381
John Brothenck (The) 407
Johnson v. Dalton 424
XVI
INDEX TO OASES CITED.
Section
Johnson v. Hudson 167
V. Banldn 826
Jones V. Lewis 808
V. Person 276
». Pitcher 419
». The Phoenix 480
V, Stevens 168
i ». Thomas 253
V, WiUiams • 326
Jonge Margaretha (The) 447
Jojnes V. Statham 861, 864
Jofiiouw Anna (The) 408, 466
Juliana (The) 428
Juno (The) 451
Jupiter (The) 407, 481
K.
Keisselbrack v. Livingston
Kelly V. Eckford
Kennedy v. Baylor
c. Kennedy
Kenny v, Dalton
Kent t;. TaneyhiU
Keppel's case
Ketland v. Bissett
Ketland (The) v, Lebering
Key V. Vattier
Kilbee v. Sneyd
ElimbaU v. Cook
Kincaird v. Howe
King V, Hamilton
V, Reginam
Kingston v. Tappen
Kinnard v, Saltoun
Kirk V. Kirk
V. Hodgson
Kirkman v, Vanlier
Knagg V. Goldsmith
Knibb v. Dixon
Knickerbacker v, Harris
Kynaston v. East Ind. Co.
L.
La^tt V. Postley
Ls^ht V, Moigan
Laing t;. Raine
Lake v. Skinner
Lambden v. The State
Lambert v. Maris
V. The People
Lane v. Shears
Langdon v. Goddard
v» Keith .
Langley v, Fisher
368
808
388
375
347
278
478
820
426
180
274
351
22
861
90
824, 346
888
845, 846
318
276
429
855
287, 289
328
278
284
292
810
201
388
90
188
855
868
828
Langston v. Boylston
Lansda^ v. Lynch
Laragoity v. Atto. Gen.
Lathrop v. Amherst
Latimer v. Neale
Lauderdale (Countess of)
Launock v. Brown
Lawrence v, Lawrence
Le Cheminant v. Pearson
Lee V. Gansell
V, Huson
V. Paune
V. Risdon
Leeds v. Marine Ins. Ca
Lench v. Lench
Legard v, Sheffield
Lennox v. Munnings
Lenox v, Prout
Leonard v, Huntington
Leopard (The)
Leroy v. Veeder
Levi V. Jakeways
v. Levi
Leving v. Caneley
Lewes v. Morgan
Lewis V. Brooks
V, Owen
Ligo (The)
Lin V. Jaquays
Lindo v. Rodney
Lincoln v. Wrisht
Lingan v. Henderson
Lingen v, Simpson
Litchfield v. Bond
Littlefield v. Clark
Lively (The)
Liverpool Packet (The)
Livingston v, Livingston
17. Story
V. Tompkins
Llewell3m v, Badeley
Lock V. Foote
London Packet (The) 895,
448, 457,
Long V, White
Lonsada v, Templer
Lonsdale «. Brown
Lopez t;. Deacon
Lord V, Ferguson
Lord Hobart (The)
Love V. Braxton
Lovett V. Steam Mills Co.
Lunn V. Johnson
Lumbrozo v. YHiite
Luminary (The)
Lunsford v. Bostion
Section
884
289
384
181
298
459
123
287
419
81
15
168
866
288
833
278
851
289
419
407
884
286
90
280
816
258
826
404
286
448
352
814, 816
298
278
875
895, 442
408
384
267
278
800
279
488,447,
463, 464
289
291
820
295
419
486
289
289
276
880
404
882
INDEX TO GASES CITED.
XVU
Lnpton t?. White
Lydiahead (The)
LTDoan v. Little
M.
Mackworth v. Penrose
Macomber v. Thompson
Madder v. Reed
Madona D'ldra
Magee r. Moss
Magnus (The) 455,
Ma^rath v. Yeitch
Mahala v. The State
Mahur v. Hobbs
Malcolm v, Rogers
V. Scott
Malone v. The Mary
V. Morris
Malta (The)
Man V. Ward 250, 815,
Manning v, Lechmere
Margareson v. Saxton
Maria (The)
Maria Magdalena (The)
Marianna Flora (The)
Marks v. Pell
Marshall t;. Cliff
Marshfield v. Weston
Marston v. Brackett
Martin v, Greene
V. Miller
Mary (The) 401,
Mason v. Armitage
V. Debow
Matilda (The)
Matthew v Hansbury
Mannsey v. Burham
Maury v. Lewis
Mawman v. Tegg
May V. Brown
Mc Campbell v, QUI
McCorkle v. Binns
McDaniel t;. The State
McGowen v. Young
McGreeor v, Topbun
McGume v. Planter's Bank
Mc Lane v. (reorgia
McLaren v. C harrier
McNiel V. Holbrook
McPherson v. Daniels
Meach v, Chappel
Mead v, Daubigny
». Young
Meadbury v. Isdall
Mechanics' Bank v. Seaton
Section
344
463
290
341
205
428
427
423
459, 462
343
37
310
266
323
430
351
431
318, 344
250
331
454
453
403
323, 364
292
342
264, 339
289
199
406, 407
361
279
413
356
293
289
329
175
276
165
223
276, 276
339
287
11
382
257
14
381
15
103
315, 316
351
6*
Medcalfe r. Medcalfe
Medlay v. Pearce
Mendizabel t;. Macbado
Merest V. Hodgson
Merino (The)
Merrimack (The)
Merriman v. Chippenbam 228, 230
Merry v. Green 159
Mestayer v. Hertz 22
Mifflin V. The Commonwealth 89
Section
274
336
384
278
396
466
Mill V, Mill
Miller t;. Avery
V. McCan
V. Talleson
Milligan v. Mitchell
Mills V. Gore
V. Martin
V. Pittman
348, 850, 369
309
315
289
308
288
468, 469, 470
309
Minerva (The) 424, 427, 462
Mohawk Bank i;. Atwater 369
401
366
318
191
346
331
288
304
37
351
335
289
296, 300
364
294
354
276
351
351
314
38
160
201
323
423
316, 318
296
469, 489
Monarch (The)
Monck V. Monck
Monday v, Guyer
Montgomery v. The State
Moons 0. DeBemales
Moore v. Aylett
V, Hylton
1;. Pentz
17. The State
Moorhouse v. De Passou
Morely v. Bonge
Morpbett v. Jones
Morrice v, Swaby
Morris v, Nixon
Morrison v, Arnold
Mortimer v. Orchard
Moseley v. Garrett
V. Moseley
Mostyn v. Spencer
Motteux V. Mackretb
Mount V. The State
Mowrey v, Walsh
Muir V, The State
Mullonland v. Hendrick
Murray v. Kellogg
V. Shadwell
V. Walter
Muspratt's case
N.
Nancy (The)
Napier v. Staples
Nash t7. Smith
Neale v, Hagthorp
Neathway v. Ham
466
301
384
289
323
XVUl
INDEX TO GASBS CITE]).
Section
823
869
818
401
851, 485
408
464
841
818
165
^Gller 266
401
287
863
810
178
448
840
816
851
817
281
415
Necot V, Barnard
Needham v. Smith
Nailson v. McDonald
Nel^n (The)
V, U. States
Neptune (The)
Ncrevda (The)
Nevil V. Johnson
Nevill V. Demeritt
Newborongh v. Curry
Newburg Tump. Co. v.
New England (The)
Newman v, James
Newson v. Bufferlow
Nibbett v, Daniel
Nicholson t;. Lathrop
Nied Elwin (The)
Nielson v. Cordell
Nightingale v. Dodd
Nouin V. Shannon
Norton v. Woods
Norse v. Bunn
Nymph (The)
O.
O'Callagher v. Murphy 826, 851
O'Connell v. Reginam 91, 96
O'Hara v, Creap 352
Oldham v. Oldham 885
V. Carleton 884
V. Litchfield 865
Oliver v, Alexander 415, 428
V. Bentinck ' 178
O'Mealy v. Newell 84
O'Neil v. Hamill 885, 872
Only V. Walker 289
Orion (The) 466
Onnona v. HutchincKm 281, 290
Ome V. Townsend 395, 897, 430
Osborne t^. Leeds 866
Osmond v. Tindall 850
Owen V. Flack 408
V, Thomas 294
Owens v. Dawson 274
P.
Packet (The) 395
Palmer v. Van Doren 316
Palmyra (The) 396
Pardee v. De Cala 809
Paris V. Hughes 318
Park V, Peel 826
Parker v. Baker 383
V. The Calliope 423
Parker v. Morrell
t?., Whitby
Parkhurst v. Lowten
Parsons v, Bedford
Pascall V, Scott
Patrick t;. Smoke
Patterson v. Gaines
Paul Sherman (The)
Payne v. Coles
Pearson v, Rowland
Peele v. Merchants' Ins. Co.
Peirce v. West
Pember v. Mathers
Penderil v. Penderil
Penfold V, Nunn
Penninffton v. Gittings
Pennsylyania v. CraJg
r. Huston
V. SuUivan
People (The) v. Abbott
». Anderson
Bection
839
830
828
260, 263
342
194
286
404
287, 841
852
387
288
250, 289
347
802, 803
287, 289
216
V. Babcock
V. Barrett
V. Burke
V. Butler
V. Call
V. Cogdell
V. Colt
V. Cotteral
V. Croswell
V. Cunningham
V. Fisher
w. Fitch
V. Galloway
V, Grardiner
v. Genung
V. Goodwm
V. Johnson
V. Lynch
V. Mather 89, 90, 93,
97
V, McGrarren 159
V. McGee 218
V. McGrowan 36
V, Miller 84
V, Norton 42
V, Olcott 87, 97
V. Peabody 113
V. Peacock 108
V. Phelps 190
V. Pine 179
t7. Rathbum 112
v. Rugglea 68
V. Ryan 122
V. Sands 184
v. Schenk 152
217
210
214
159
84
35
152
55
162
159
140
52
164
184
90
103
86
152
88
85,37
86, 154
237
INDEX TO GASES CITED.
People (The) v, Schuyler
V. Shall
V. Spauldiog
V. Stater
V. Stone
V, Van Blarcnm
t;. White
V. WUIiams
Perigal V, Nicholson
Ferine v. Dunn
Pettingell v. Dinsmore
Peyton r. Green
Petty V. Taylor
Phillips V. Evans
1. Muilman
V, Richardson
r. The State
17. Thompson
Phoenix (The)
Piatt V, Vattier
Kckering v. Rigby
Piddock V. Brown
Pierce r. The State
Pierson v. Catlin
V. Meanx
Pi^ott V. Crozhall
PiUing V. Armitage
Pillsburyr. Pillsbury
PSnkerton v. Bamsley
Pitt (The)
Pizarro (The)
Plunkett V. Cobbett
Podmore v. Gunning
PoUy (The)
Pomfret v. Windsor
Popham V. Brooke
Port Mary (The)
Potter V. Potter
Potts V. Curtis y
V. Potts
Powell 17. Kane
V. PoweU
V. Swan
Powers t7. Elmendorf
Poultney o. Wilkinson
Pratt V. Thonuis
President (The)
Pretty v. Parker
Price V, Lytton
Prime V. i&mo
Prince of Wales v. Liyerpoal
Pritchard v. Quinchant
Probert t7. MiUechamp
Pugh 17. Griffith
Purcell V. McNamara
Pyncent v. P3mcent
Seetion
158
103
882
10,67
84
54
145
86
369
182
403
372
289
298
381
289
213
351
459
355
303
318
179
289
276
348
289
365
383
412, 414
408, 453, 466
168
365
408
310
253
442
282, 803
346
372
381
285
375
304
190
401
461
366
281
376
303
363
852
76
348, 369
323, 350
Quentin's case
Quesenbury t7. The State
R.
Ragan v. Echols
Ramy v. Kirk
Randal v. Randal
Rankin v. Maxwell
Redford v. Birley
Reece v. Parley
Reech v. Kenmgate
Reed t7. Clark
17. The State
Rees V, Bowen
17. Lawless
Regina v. Alison
■ V, Aston
— ^— t7. Baker
' V. Banks
V. Barnard
V. Beaman
17. Best
XIX
Section
501
27
V. Bindey
17. Bird
t7. Blake
17. Bleasdale
V. Boult
17. Boulter
V. Brimilow
17. Brooks
V. Burt
V. Butler
V. Button
17. Campbell
V. Camplin
V. Champney
V. Chappie
17. Clarice
V. Clay
V. Coke
V. Cooke
V. Crowhurst
17. Cruse
v. Cruttenden
■ 17. Day
V. Danby
r. Dossett
- V. Drake
17. Driscoll
17. Druiy
17. Fisher
V. Frost
17. Gardiner
17. Geering
318
383
363
274
222
288
365
250
15
192
274
41
111
59
59
59,
162
90
153, 224
36, 76
90
9,15
103
198
4,215
162
25
HI
59, 90
22
211
198
47
153
214
38
110, 111
32, 161
6,7
32
59
229
15
167
64
85
122, 125
92,241
190
135
INDEX TO CASES CITED.
Eeginav. Gilchrist
— V. Godfrey
V. Gompertz
— ^ V. Goode
^—^ V. Graham
V. Guttridge
V. Harley
». HaU
V. Hannon
^ — V. Hawkins
V. Ilavward
r. HoUoway
V, Howell
V. Hopkins
i;. Hughes
t;. James
V. Jenkins
w. Johnson
V. Jones
V. Jordan
■ r. Kain
9 V. Kelly
■ t;. Kendrick
' 17. Kerr
1». Kirkham
r. Langford
" V. Lewis
V. Lines
V, Lovett
V, Mabel •
V, Madge
17. Manning
17. Marcus
V. Martin
17. Matthews
V. Mazeau
r. McRue
— 17. Megson
— V. Meredith
— V. Michael
- — V. Morris
— r. Murphy
— V. Muscott
— V. Neale
— V. Newton
— 17. O'Brien
— 17. Oddy
— r. Overton
- — 17. Parker
■ — t;. Phelps
- — V. Philhps
■ — V. PhilpottB
— 17. Pitts
— 17. Po^ser
■ — V. Pnvett
— t;. Pulham
Section
108
157
90
162
135
214
196
155
66
162
162
150
40
181
190, 198, 210
59
162
77, 135
84, 162
4, 210, 215
15, 234
122
90
159
127
220
111
210
170
64
152
7, 29
18, 103
59
83
104
210
218
2,59
15
153, 224
93,94
201
222
37
140
15,111
195
55, 95, 194
123
4,215
195
142
162
157
49
Regina t7. Rodway
— 17. Rosenberg
— t;. Rudick
1;. Saunders
V. Schlcsinger
V. Shellard
17. Sherwood
V. Smith
r. Soley
V. Spilling
V. Stanton
— 17. Steele
V. St. George
17. Stroud
V. Swindall
17. Taylor
17. Thompson
17. Tbomhill
17. ThisUe
17. Thurbom
17. Tollett
17. Trilloe
17. Tyler
17. Vincent
V. Walsh
17. Walker
17. Walters
17. Warman
17. Watts
17. Wheatland
17. Wheeldom
17. Williams 9,
V. Wilson
17. Wright
17. Yeates
V. Young
Reimsdyk v, Kane
Remsen v. Remsen
Resolution (The)
Respublica v. Caldwell
17. Carlisle
17. Chapman
17. Hevice
t;. M'Carty
17. Newell
17. Powell
V. Roberts
Rex 17. Abingdon
17. Adams
17. Aickles
17. Amier
17. Amphlit
17. Anderson
17. Archer
17. Armstrong
V. Arundel
Section
162
158
224
59, 211
194
94
122
15, 121
216
129
210
96
59
22
29
15, 129
158
39
162
159
158
136
8,138
89, 222
11
213
147
140
162
198
76
59, 108, 211
162
136
195
40
318
835, 336
459
187
237, 240
237
89
248
190
84
248
168, 178
32
160
153
170
121
7
89
859
IKDEX TO OASES CITED.
XXI
Bex V, Aspinwall
V, Astlej
V, Atkinson
V. Atwell
— ^ V. Aves
V. Aylett
V. Backler
— ^ 17. Bailey
». Baker
V. Ball
V, BaUs
— V. Banks
-^— 1?. Barker
V. Barlow
V. Bamett
V. Beach
r. Beale
V. Bear
V, Beane
1;. Benesech
V. Benson
V. Best
V. Bingley
V. Birt
V. Blackham
V. Bolland
r. Bontien
1». Bostwick
V. Boyer
V. Brady
V. Brain
V, Brannan
V, Brazier
V, Brice
V, Brooks
V. Brown
V. Bryan
V. Burdett
V. Burnett
v. Bykerdyke
V, Cabbage
17. Callan
7- 1?. Cannon
17. Carlisle
V. Carr
17. Carrell
17. Carroll
r. Chalking
17. Charlewood
17. Chamock
17. Clark
V. Clarke
V. Codrington
17. Cohen
17. Coleman
— — t7. Collicott
Seelion
214
233
104, 160
41
121
195, 198
109
76
229
111, 15
15
162
29
266
152
167
71
38
170
195
192
91
104, 224
216, 220, 222
230
103
109
40
17
192
136
109
162
76
163
76, 79, 233
84
90
184
96
157
76
235
68,69
193, 199
80
6
80
162
96
36
27, 213, 214
84
201
160
104
Bex V. Conner
17. Cope
V. Corbett
17. Cornwall
17. Coslet
». Covemey
-^ — 17. Cox
17. Creevey
17. Crespigny
». Crocker
17. Crossley
v. Crowther
17. Crunden
17. Crutchley
17. Calkin
17. Curran
17. Dade
17. Dalby
r. Dale
17. Davies
r. Davis
• 17. Davison
17. Dawson
17. De Berenger
— V. Deeley
17. Delaval
— ^— 17. Derby
17. Dicks
17. Dixon
17. Donnall
17. Donolly
17. Dowlin
». Duffin
17. Dummer
17. Dunstan
17. Dyer
17. Dyson
V. Eccles
17. Eden
17. Edwards
17. Egerton
17. Eggington
17. Elmstead
17. Eldershaw
17. Elliot
17. Emden
17. Eriswell
17. Errington
17. Esop
V. Enoch
V. Evans
17. Everett
17. Farrell
17. Farr
17. Farrington
V. Ferguson
Section
126, 129
93
123
77
153
11
219
168, 178
201
111, 112
19
108
184
136
138, 140
123
104
202
87
229
38, 76
25
16
90
205
89
22, 266
7
84
135
282, 234
193, 199
17
191
195
41
41
90
202
232
234
80
234
4,215
105
85, 86, 192
11
11, 128
20
136
16, 142
-71
225
77
14
96, 129
i
XXll
INDEX TO CASES OITED.
Bex V. Fitzgerald
V. Flannagan
V. Forbes
V. Foster
V, Frances
V. Francia
V, Fray
V. Fuller
V, Furser
V. Gardner
— V. Gascoigne
y. Gibbons
V. Gibson
V. Giles
1>. GiU
1?. Gillow
V. Croodhall
• V. Gordon
». Gordon (Ld.
V. Gowen
V, Grady
V, Gray
V. Greenacre
— ^ V. Gregg
V, Grey
V, Griepe
f. Groombridge
-^— V. Groundsell
V. Grout
V. Hailey
— ^ v. Haines
V. Hall
V. Hammond
V. Hampton
. V. Hancock
V. Hardwicke
V. Harris
— V. Hart
V, Ha worth
— ^ V, Haynes
V. Ilaywark
V. Haughton
— — - V, Hemp
V. Hensey
1?. Hevey
V. Hewlett
— V. Hickman
V, Higgins
V, Higginson
V. Hilbcrs
V. Hindmarsh
1?. Hodgson
V. Holden
V. Holland
17. Hollingberry
Section
105
79
111
39
228
240
126
79, 234
38
234, 483
230
80
80
110
62
17,123
84,86
49
Geo.) 242
54
11
90
14, 47, 49, 119,
144
244
89
195
215
140
129
192
76
76, 171
90,92
109
80
66
19,54,110
167
107
84
125, 127
52
201
244
106
32
140,234
2
184
90
30
214
110
139
90
Rex t;.
V,
V.
17.
17.
V,
V,
17.
1;.
V.
Holloway
Holmes
Hood
Home
Homer
Hough
Howard
HowarUi
Howell
Huggins
Section
152, 162
54
123
175
229
111
190
123
162
147
t7.
V.
V.
V.
V.
17.
V.
V.
V,
V.
17.
17.
V,
V.
17.
t7.
17.
V.
V.
V,
V.
V.
V.
17.
V,
V.
V.
V.
V,
V.
t7.
17.
17.
t7.
r.
V,
V.
17.
v.
t7.
t7.
17.
Hughes 7, 78, 106, 140, 216,
219, 232
202
92, 93, 169, 222
107
Hulme
Hunt
Hunter
Hyans
Isaac
Jackson
James
Jarvis
Jenks
Jollifie
Johnson
76
56
59, 235
192
47
17, 22
90
76, 90, 173
Jones 81, 103, 105, 162, 193,
199, 234
Jordan
Kelly
Kessell
King
Kinnersley
Eirkwood
Knight
Lamb
Lambert
Lapier
Lara
Lawrence
Lee
Leefe
Leigh
Levy
Lewis
Lloyd
Locker
Long
Lynch
Lyons
Macarty
Macauly
Mackallcy
Madox
Marshall
Martin
Mason
Mawbcy
75, 76
140
121
41, 109
2,97
104
7, 129
159
168, 178
155, 225, 229
84
76
93, 193
193
159
96
190
142, 236
98
129
125
79
90
229
140
162
103
80, 128, 139, 140,
214
87, 127, 229
38,90
INDEX TO CASES CITED.
xxm
Bex V.
V.
V.
- V.
V.
V.
17.
r.
17.
V,
V-
17.
u.
t7.
t7.
V.
V.
17.
17.
t7.
V,
t7.
17.
t7.
17.
V.
17.
17.
17.
17.
17.
17.
17.
17.
V.
V.
r.
V.
V.
17.
17.
t7.
17.
17.
V.
V,
t7.
17.
V,
- 17.
17,
V.
17.
17.
Mayor
Mazagora
McCarther
Mcintosh
McKamee
Mead
Meakin
Melliog
MiUard
Minton
Monatt
Moore
Morfit
Morris
Munton
Neville
Niccolls
Nichol
Nicholson
Norris
Norih
Ogilvie
Oneby
Opie
Owen
Paine
Palmer
Pappineau
Parker
Parsons
Patch
Patience
Partridge
Peacock
Pear
Pearce
Pedley
Perkes
Perrott
PhiUips
Pickman
Pitman
Pitt
Plympton
Pollman
Poulton
Preston
Price
Probert
Prowes
Punshon
Pywell
Reader
Reane
Beeves
Section 1
266
18,103
192
105
162
123, 296
6
201
17, 19,111
57
15
105
160, 229
157
48, 192
194, 199
184
97
59
135
90
57
22
125
90
4
11, 76, 169
110
184
103
93
160
128
32
109
162
15, 168
54, 57, 194
76
87
2
57
154
71
71
71
136
240, 244
192
56
152
190
84,90
51
282, 235
136
Bex
17.
r.
V.
17.
17.
17.
17.
17.
17.
r.
17.
17.
17.
17.
17.
17.
17.
17.
17.
V,
17.
17.
17.
17.
17.
17.
17.
17.
17.
17.
17.
17.
17.
17.
17.
17.
17.
17.
17.
17.
V.
17.
17.
17.
17.
17.
17.
17.
r.
V,
17.
17.
17.
17.
17.
Bew
Bhodes
Bickman
Bispal
Boberts
Bobinson
Bobson
Bogers
Bosinski
Bowley 111,
Boyce
Bussell
Bussen
Bust
Sainsbnry
Salisbury
Salter
Saunders
Scholfield
Scott
Sears
Sedler
Sellers
Semple
Senior
Sergeant
Seward
Sharpless
Sheene
Sheppard
Shendan
Shuckard
Simons
Simpson
Simson
Slaney
Smith 11, 15,
Soares
Spear
Spencer
Spiller
Spragg
Spraffge
St. A^ph
Stallion
Stannard
Stedman
Steine
Stevenson
Steward
Stock
Stone
Story
Styles
Sudbury
Section
139
195
64,57
90,91
90
15, 22, 68, 76
162
81
59
192, 193, 199
218, 221
187
210
78
1
15
93, 94
141
54
217
159
184
136
162
136
98
89
160
36
111
210
110
227, 233
129
153
168
75, 79, 80, 98,
110, 111, 184
42
162
192, 227
129
91
107
179
55
21
122
29
90
229
80
94, 244
87
195
217
XXIY
INDEX TO CASBS CITED.
V.
V.
V,
V.
V.
V.
V,
V.
V,
V.
17.
V.
V.
V.
v.
V.
v»
V,
V.
V,
V,
V.
V.
V,
17.
V.
V,
V.
V.
V.
V.
V,
V,
V.
V.
17.
t7.
17.
O.
t7.
t7.
17.
17.
17.
17.
v.
V.
17.
V.
t7.
Sullivan
Sutton
Taplin
Tavemer
Taylor 36,
Taylors, &c.
Tawley
Teague
Tennent
Thatcher
Thomas
Thompson
Thorpe
TindaU
Tolfree
Tooke
Treeve
Tucker
Turner
Twyning
Tye •
Van Butchell
Yandercomb
Yau^han
Yerelst
Yincent
Yoke
Waddington
Walker
WaU
Walsh
Walters
Waters
Ward
Watson
Watts
Webb
Wegener
Westwood
Whalley
Wheatley
Wheeldon
White
Whitely
Whitehead
Wiggs
Wilders
Wilkins
Williams
Williamson
Winkworth
Withers
Woodcock
WoodfaU
Woolston
Section
128
2,270
231
15
55, 68, 98, 103,
184, 192
89
135
104
22
11
6, 125, 127
79, 123, 140
121
186
158
97
85
15
80,90
207
140
129
86
2, 71, 244
190
90
15
68,69
22, 129
103, 105
153, 154
80
140, 142
103, 111, 187
160, 173, 240
187
103, 129, 139
169
80
64, 123
84
76
40, 186
121
99
126
86
160
169
129
15, 233
123
11
13
68
Rex 17. Wylie
17. Wjnnne
17. Young
Rhodes i7. Sehn
Rich 17. Jackson
Richardson i7. Golden
Richmond (The)
Rico 17. Gualtier
^R@i ^' Curgenven
Rising Sun (The)
Robbms t7. Treadway
Robert (The)
Robert Edwards (The)
Roberts i7. Anderson
Robinson v. Gumming
17. Sampson
Rogers v. Glifton
V. Dibble
17. Earl
Rogerson v. Whittington
Romeo (The)
Rosalie & Betty (The)
Rose well i7. Bennett
Rovena (The)
Rowe 17.
Rowland v. Stnrges
Rowley t7. Adams
17. Ridley
Ruby (The)
Rucker v. Howard
Rude V. Whitchurch
Runnels v. Jackson
Russell 17. Dickson
Rust 17. Larue
Rustell 17. Macquister
Rutter 17. Baldwin
S.
'Section
15, 19, 66
159
86
323
361, 363
828, 351
447
385
73
408, 453, 466
165
460
406
341
335, 372
315
168
369
363
315, 338
448, 463
466
366
429
384
309
333, 836, 345
847
435
381
281
365
367
180
15
278
Sallee v, Duncan
Salmon v, Claggett
Sally (The^
Saltern t7. Melhuish
Sampson v. Smith
Samuel (The)
Sandford v. ^—^^
395,
396,
17. Paul
Sands i7. Robinson
San Jose Indiano (The)
Sara Bamadina (The)
Sarah (The)
Sarah Ann (The)
Sawyer v. Bowyer
Schwarz i7. Wendell
Scott 17. Waithman
276, 287
289
442, 462
359
63,64
438, 462
336
346
168
419, 442,
452
412
459
394, 403
336
285
306
INDEX TO GASES CITED.
XXV
Sea Ins. Co. v. Stebbins
Sergeant v. Biddle
Shaffer v. Kintner
Shannon (The)
Sharp V. If. States Ins. Co.
r. Wilhite
ShaVs case
Shaw V, Lindsey 846, 349,
r. Thompson
Shearer v. The 'State
Shelbume v. Inchiquin
Sheriff V. Coates
Sherwood v. Hall
Shipley v. Todhunter
Shipp V. Swan
Shoemaker t^. The State
Short Staple (The)
Shndall v. Jekyll
Sid^er r. Birch
Sidney v. Sidney
Sills V. Brown
Simmons v. Gutteridge
Simpson v. Morris
Sims V. UriT
Sinclair v. tfames
Sisters (The)
Skerrett v. Lynch
Slason V. Wright
Slee r. Manhattan Co.
Sloan V. Little
Smith r. Althus
v. Beaufort
n,
— V, Bouchier
— o. Brush
— V. Burnham
— V. Chapman
— V. Clarke
'- V. Effingham
— V. Graham
V. Kirkpatrick
V. Lane
V, Shaw
V, Smith
t7. The State
V. Webster
V. Woodroffe
Snell V, Fausatt
— =- V, The Independence
Snow V. Phillips
Sociedade Feliz TThe)
Souverbye v. Araen
Speculation (The)
Speed (The^
Spcnce V. Allen
Spencer v. Eustis
SpToule V. Samuel
VOL. III.
Section
381
433
191
407
419
191
469, 472
351, 352
190
24
863
329
893, 413
170
363
147
404
366
332
356
407, 416
333
65
363
852
419, 452
281
288
364
287
335, 336
298
191
354
322, 323
363
355
837
336
824
341
468, 469
351
184
332
382
420
429
274
428
318
445
407
846
429
815
Section
St Lawrence (The) 466
Staat Embden (The) 448
Stafford v. Bryan 284
Stanney r. Walmsley 845
Stanton v. Delaware Ins. Co. 804
State (The) v. Alexander 201
V. Allen 153
r. Allison 217
V. Ames 103
V. Anthony 98
V. Antonio 111
V. Avery 2, 169
V. Bancroft 75, 83
». Bell 186, 187
V, Benedict 69
V, Bennett 32
V. Bertheol 184
V. Bishop 202
V, Brazil 218, 219
V. Bowen 11
V. Brewster 82
V. Briggs 64
. r. Broc3:8 216, 219
V. Brown 88
17. Buchanan 90
r. Bullock 147
V. Burnham 177
. V. Candler 106
V. Carr 106
V. CassadoB 158
17. Chandler 68
v. Cole 216
V. Connolly 216
17. CornweU 6
V. Crow 61
17. Crowell 24
V. Davis 7, 59, 61
V. De Witt 90
-^^— — — 17. Dominges 1 1
17. Douslass 152
17. DunUp 87
17. Ellis 152
t7. Farley 165
V. Farrier 2
t7. Fassett 190
V. Ferguson 159
17. Field 27
V. Fold 26
t7. Fostel 108
V. Furlong 161, 201
t7. Garrigues 87
• t7. Ginns 80
17. Godet 161
t7. Gorman 162
V. Grant 161
17. Gregory 190
XXVI
INDEX TO CASES CITED.
State (The) v. Guild
V. Hall
0. Ham
V. Handy
17. HascaJl 190,
V. Hathaway
V. Hayward
V. Henderson
V. Hill
V. Hogg
V. HoUey
V. Holloway
V. Jefienon
V. Johnson
V. Jones
V. Justice
V. Keene
V. Lavalley
V, Langford
V. Lawrence
V. Lazarus
V. Le Blanc
V. Little «
V, Matihis
V. McAllister
V. McCants
o. McDaniel
V. Merrick
V.Merrill
- V.Mills
- V. Mitchell
- V. Moffat
- V. Molier
- V. Moigan
- V. Morrison
. V. Mumford
- V. Murphy
- V. Murray
- V. Ned
- V. Norris
- V. Norvell
- V. Offutt
- V. Orrell
- V. Porter
- V. Potts
- V. Pray
- V. Quinn
- V. Ranrelin
- V. Ray
- V. Roane
- V. Roper
- V. Rowley
- V. Rutherford
- V. Sandy
- V. Scovel
- V. Seay
Section
4
37
204
108, 215
193, 199
195, 201
198, 201
165
116, 147
161
103
207
71
147, 190
32, 112
84
192
196
80
106
64
210
38
186
111
6,148
86
87
25, 147
86,87
56
190
191
61
24
197
89
90
87
192, 195
38
190
120, 131
192
107
202
64
106
38
115
184
89,90
115
55
154
152
State (The) v. Self
V. Shepard
V. Simpson
V. Smith
V. Snow
V. Somenrille
V. Soper
V. Southwick
V. Standifer
V. Stark
V, Steele
V. Stevens
V. Stewart
V. Strat
V. Stroll
V. Swan
V. Thawley
V. Tillery
V.Tilly
V. Tom
V. Trexler
V. Turner
V. Twitty
V. Valentine
Section
162
36
152
14, 59, 103,
111, 113
216, 218
152
94
165
36
5
190
470
52
195
84
6
27
153
27, 147, 149
97
229
14
80, 111
11
V. Van Hereten 15, 111
V. Vittum
v.Wall
V. WaUer
V. Washington
V.Wells
V. Weston
V.White
V. Williams
V. Wilson
V. Wood
V. Woodson
V. WooWertin
V. Younger
V. Zellers
Steele v. Southwick
Steinman v. Mc Williams
Stephen v. Morris
V. Myers
22
190
184
103
25
32, 159
165, 201
15
76, 80, 153
64
88
201
90
145
164, 165
195
303
59
Stephenson v. Stephenson 278, 279,
287
Stevenson v. Anderson
Stewart v. Turner
Stockdale v. Hansard
Stockwell V. North
Stokes V. McEerral
Storm V. Mann
Story V. Lenox
V. Livingston
Stratford's case
Strong V. Stewart
384
332
178
71
369
385
295
324
469
364
INDEX TO GASES CITED.
XXVll
Stuart r. Lovell
Success (The)
Salston t;. Norton
Sumner v. The State
Sutton o. Buck
V. Wilson
Snydam r. Dequindre
Swett V, Poor
Swift V. Hosmer
Swinford v. Homer
T.
Taggard v. Loring
TEtltot V. Rutledge
V. Sibree
Section
15, 168
459
72, 78
29, 131
419
350, 351
292
180, 183
286
336
Tallmadge m Tallmadge
Tate V. Connor
Taylor v. Barclay
17. Cole
V, Georgia
V. Moore
V. Rundell
V. Salmon
Thackery's case
Thallhimer v, BrinckerhofF 180, 181,
182
407
381
270
419
290
375
315
276
270
274
165
315
296
307
482
Thames (The)
Thaver ». Swift
TheUuson r. Cosling
Thomas and Henry (The) 418, 414,
484
Thomas v. Croswell
V, Davis
V. Graham
V, Lane
V. Visitors, &c.
Thompson v. Harrison
17. Heffeman
V. Lambe
168
363
316
427
873
316
258
290
V. The Philadelphia 415,
430
Thorington v. Carson
Thornton v. Stewart
Thurston v. Percival
Thynn v. Thynn
Tickell V. Read
Tilton (The)
Tilton 17. Tilton
Tippins 17. Coates
Titus r. Cortelyou
Tobin V, Wilson
Todd 17. Hardie
Torrance t7. Hurst
Towan (The)
Town t7. Needham
276
384
180
365
65
420
363
328
301
276
875
165
486
287
Townsend v, Ives
17. Stangroom
17. The State
Traveller (The)
Treadwell v. Joseph
Trimlestown v. Kemmis
Troup t7. Sherwood
Tucker t7. Buffington
Tulley 17. Reed
Turberville i7. Savage
Turner i7. Burleigh
—^^ V. Trelawney
Two Brothers (The)
Tyler t7. Drayton
l>ner t7. The State
Tyrwhitt v, Wayne
U.
Underhill 17. Cortlandt
Union (The)
Union Bank i7. Barker
r. Geary
17. Enapp
United States v. Baifey
17. Battiste
Section
294
860, 861,
368
179
407
895, 404
274, 275
848
419
65
61
310, 831
846
453
298
181
857
17. Britton
17. Burr
17. Cassidy
17. Clew
17. Coolidge
v. Craiff
17. Doebler
17. Freeman
v. Furlong
17. Gibert
17. Haines
17. Hairpencils 320,
850, 484
17. Hamilton
17. Hand
17. Haskell
17. Hayward
V. Hodges
851
404
278
284, 286
872
190
179
107, 167
241, 242
426
162
87
104
107, 111
142
419
85,87
426
17. Jenkins
17. Jones
V. Mitchell
426
59
87
404
244
419
228
110, 241,
242, 428
V.Morris 179
17. Morrow 105, 110
17. Packages, &o. 898
17. Perez 87
v. Pins 804
17. Ravara 6
17. Ross 40, 144
XXYUl
INDEX TO GASBS GITBB.
Section
United States v. Soadenbush 25, 111
V. Shoemaker 87
V. Smith 35 1
V. Ten Hhds., &c.
404, 416
V. Travers 123
V. Vigol 242
V. Wutberger 115,
122, 140
V. Wine, casks of 395
Updegraph v. The Commonwealth 68
Usher v. Severance 165
V.
Vandyke v. Van Beuren
Van Steenberg v. Eortz
Van Vechten v. Hopkins
Van Wyck r. NorvcU
Vattier v. Hinde
Vaughan r. Uoyd
V. Worrall
183
191
175
289
326
336
348, 351, 369
423
461,464
406
431
447, 452, 459
419
395, 407
448
Veacock v. McCall
Venus rThe)
Vemard v, Hudson
VibiUa (The)
Vigilantia (The)
Vinal V, Burrill
Tirgil (The)
Vriendschap (The)
Vrow Anna Catherina (The) 442,
459
Vrow Hermina (The) 466
W.
Wait o. Gibbs 425
Walbum v, Ingilby 296
Walker v. Symonds 309, 846
V. Walker 376
v. Wingfield 317
Wallace v. Hodgson 346
V. Pomfret 366
Wahnsley o. Child 384
Walsingham Packet (The) 442
Walton V. Hobbs 354
Ward V. Meath 278
Waring v. Clarke 394
Warren v. The State 1 79
V. Warren 1 70
Waters v. Creagh 287
Watkins v. Furdand 343
Watkyns v. Watkyns 8 75
Watson V, Cresan 106
V. Benwick 295, 297
Watte V. Brains 124
Watts V. Hyde
Weaver v. Bush
V, Ward
Weleker i'. Pelletier
Wells V, Hodge
Welvaart (The)
Wendover v. Hogeboom
Wesley v. Thomas
Western v. Penniman
Western R. R. Co. r. Babcock
Weymouth t*. Boyer
Whaley ». Norton
Whatley r. Smith
Wheat V. Graham
Wheeler v. Trotter
Whipple V, Lansing
Whitakcr v. Wright
White V. Hess
V. Fussell
17. Nichols
Section
289
64,65
62
22
363
408, 452, 464
419
363
. 419
361
316
323, 356, 472
317
299
356
318
386
28
323, 348, 350
165, 168
385
Whitclegg V. Whitelegg
Whitelocke's case 478
Whittington p. Roberts 287
Wicherley v. Wicherley 372
AVickham r. Blight 423
' — V. Conkin 182
Wilcox V, Calloway 183
Wilford V, Beaseley 342
Wilkins v. Woodfin 287
Wilkinson v. Beal 294
Willard V. Dorr 428
WiUan v, Willan 836, 346
William Harris (The) 398, 415
Williams v. Beard 315
V, Broadhead 343
V. Goodchild 346
V, Llewellyn 855
r. Maitland 318
v. Ogle 167
V. Purdy 372
V. The State 215
Williamson v. Henley 182
V. Hunter 346
V. Hutton 309
Willings r. Consequa 320, 351
Willis V. Henderson 286
V, Watson 180
Wills V. Noyes 14
Wilson V. Boerem 236
Winsback v. Stone 84
Wise V, Withers 470
Witcherly r. Witcherly 835
Witts V. Campbell 314
Wolcott V. Knight 180
Wolton V. Gavin 468
Wolverton v. The State 204
INDEX TO CASES CITED.
XXIX
Wood 0, Cole
V. Goodlake
V. Hamerton
V. Harpin
V, Mann
V, The Nimrod
V. Bowcliffe
Woodcock V. Bennet
Wooden v. Haviland
Woodrop Sims (The)
Woolam V. Heam
Woolett V, Roberts
Section
351
436
348
382
346, 348
429
318
284, 285
363
407
363
274, 275
Wright r. Black
V. Miller
r. The State
Wrottesley v. Bendish
Wyld r. Ward
Section
90
275
211
278
346
Yates u. Thomson
Young v. Grundy
r. Wright
28
276
292
PART V.
OF EVIDENCE IN PROSECUTIONS
FOR
CRIMES AT COMMON LAW.
GENERAL PRINCIPLES.
4
*
VOL. ni.
A
TREATISE
OX THX
LAW OF EVIDENCE.
PART V.
OF EVIDENCE IN PROSECUTIONS FOR CRIMES AT
COMMON LAW.
GENERAL PRINCIPLES.
§ 1. A crime is defined to be an act, committed or omitted,
in violation of a public law, either forbidding or commanding
it^ In the common law, crimes are divided into three classes ;
treasons, felonies, and misdemeanors. All public wrongs
below the degree of felony, are classed as misdemeanors,
and may be tbe subject of indictment, either at common law,
or by statute. Misdemeanors, again, are divided into two
classes ; mala in scj and mala prohUnta. In the former class
is comprised whatever mischievously affects the person or pro-
perty of another, or openly outrages decency, or disturbs pub-
lic order, or is injurious to public morals, or is a breach of
official public duty, when done wilfully or corruptly. The
latter comprises the doing any matter of public grievance,
forbidden by statute, or the omitting any matter of public
convenience commanded by statute, but not otherwise wrong ;
1 4 Bl. Conun. 5.
4 LAW OF EVIDENCE. [PAKT V.
whether it be or be not expressly made indictable, or visited
with any specific penalty, by the statute.^
§ 2. The attempt to commit a crimen thongh the crime be
but a misdemeanor, is itself a misdemeanor. And to consti-
tute such attempt, there must be an intent that the crime
should be committed by some one, and an act done pursuant
to that intent.2 Quidquid criminis consummntioni deest, conor
turn consiituit? Thus, to incite another to steal, or to per-
suade a public officer to receive a bribe, are alike misdemean-
ors.* So, to possess instruments for coining false money,
with intent to use them.^ So, to send threatening letters ; ^
to challenge another to fight, whether with fists or weapons ; ^
to solicit another to commit adultery.®
§ 3. In regard to the persons chargeable toith crimes^ it is
proper, in the first place, to consider the evidence of criminal
capacity^ or the degree of reason and understanding which is
sufficient to render a person' liable to the penal consequences
of his actions. Persons deficient in this respect are of two
classes, infants^ and persons non compotes mentis^ or insane.
To these may be added the class of persons deficient in will^
that is, acting under the constraint of superior force or the
power of others, and not of their own free will or accord ; such
> 1 Russ. on Crim. 45, 46, (3d edit.) ; Rex v. Sainsbury, 4 T. R. 457 ;
2 Inst. 168.
2 1 Russ. on Crim. 46 ; Reginav. Meredith, 8 C. & P. 589 ; Rexv.Hig-
gins, 2 East, 5, 17-21 ; Rex v. Kinnersley, 1 Stra. 198, 196. In some of
the United States, the attempt to commit a crime is punishable by statute.
And see Commonwealth v. Harrington, 3 Pick. 26.
3 Evertsen De Jonge, De delictis cont. Rempub. Vol. 2, p. 217. But there
must be an act done ; for, Cogitationis poenam nemo patitur. Dig. lib. 48,
tit. 19, 1. 18.
4 Rex r. Higgins, supra ; Rex », Yaughan, 4 Burr. 2494.
5 Rex V. Sutton, 2 Stra. 1074 ; Murray's case, 3 Shepl. 100.
6 U. States V. Rarara, 2 Dall. 297.
7 Commonwealth v. Whitehead, 2 Law Reporter, 148 ; The State v. Tbi-
rier, 1 Hawks, 487 ; Rex t;. Phillips, 6 East, 464.
8 The State v. Arery, 7 Conn. 266.
FiST v.] QS27ERAL PBINCIPIiES. 5
as ftiMS covert^ acting in the presence or by coercion of their
hnsbands, persons under duress per minasy and some others.
For in such cases there is no liberty of the mil ; and without
the consent of the will, there is, says Lord Hale, no just reason
to incur the penalty or sanction of a law institute for the
punishment of crimes or offences.^
§ 4. With respect to infants^ the period of infancy is di-
vided by the law into three stages. The first is the period
from the birth until seven years of age ; during which, an
infant is conclusively presumed incapable of committing any
crime whatever. The second is the period from seven until
fourteen. During this period, the presumption continues, but
is no longer conclusive, and grows gradually weaker, as the
age advances towards fourteen. At any stage of this period,
the presumption of incapacity may be removed by evidence,
showing intelligence and mdiice ;, for malitia supplet cetatem;
but the evidence of that malice which is to supply age, ought
to be strong and clear, beyond all reasonable doubt.^ There
are, however, some exceptions to the rule governing this
period ; for a female, under ten years of s^e, is conclusively
presumed incapable of giving consent to an act of criminal
sexual intercourse with herself; and a male, under fourteen,
is conclusively presumed incapable of committing a rape.^
The third commences at fourteen; the presumption of inca-
pacity arising from youth being then entirely gone, and all
persons of that age and upwards being presumed, in point of
1 1 Hal. P. C. 14, 15.
s 4 BL Ck)mm. 22, 23. And see The State v. Guild, 5 Ilalst. 163 ; Rex
t7. Owen, 4 C. & P. 236. In these cases, the prosecutor must prove two
points of fact ; first, that the prisoner committed the act charged ; and,
secondly, that he had at that lime a guilty knowledge that he was doing
wrong. Ibid. Per Littledale, J.
3 4 BL Comm. 212; Regina v. Philips, 8 C. & P. 736 ; Regina v. Jordan,
9 C. & P. 118; Regina r. Brimilow, Id. 3G6. But it seems that he may be
guilty of an assault with intent to commit a rape ; for an intent to do an act,
does not necessarily imply an ability to accomplish it Commonwealth v.
Green, 2 Pick. 380. Sec contra^ Rex v. Eldershaw, 3 C. & P. 396 ; Regina
r. Philips, supra.
1#
ty
6 LAW OF EYIDEKGB. [PABT V.
understanding, capable of committing any crime, until the
contrary be proved. Thus, from seven to fourteen, the burden
of proof is on the accuser, to show the capacity of the ac-
cused ; after that period, it is on the accused, to show his
incapacity.^ But here, also, there is an exception ; fot in
some cases an infant will not be held liable criminally, for a
mere nonfeasance, where the ability to perform the duty en-
joined, requires the command of his property, which is not
under his control^
§ 5. The subject of insanity/ has been briefly treated in the
preceding volume.^ But it is proper here to repeat, that
though the law, in its charity, always presumes men inno-
cent until they are proved guilty, yet it is also a presumptioui
essential to the safety of society as well as founded in expe-
rience, that every person is of sound mind, until the contrary
appears. And the unsoundness of mind must be established
by evidence, satisfactory to the jury.^ On questions of this
description, the opinions of witnesses who have long been
conversant with insanity, in its various forms, and who have
had the care and superintendence of insane persons, are re-
ceived as competent evidence, even though they have not
had opportunity to examine the particular patient, and
observe the symptoms and indications of disease, at the time
of its supposed existence. But in respect to the manner in
which the question is to be propounded to witnesses of this
1 Rex V. Owen, 4 C. & P. 236 ; 1 Hawk. P. C. c 1 ; 1 Hal. P. C. c. 3 ;
Broom's Max. p. 149. In California it is enacted that "An infant, under
the age of fourteen years, shall not be found guilty of any crime." Cal, Rev.
Stat 1850, ch. 99, § 4.
9 1 Hal. P. C. 20 ; 4 Bl. Conmi. 22 ; 1 Russ. on Crim. 22.
3 See Ante, Vol. 2, § 372, 373.
^ If the fact of insanity is lefl doubtful, upon the evidence, the Court
ought not to instruct the jury that insanity is proved. They must be fur-
ther satisfied that the prisoner was insane at the time of the act done ; mere
loss of memory not being sufficient And if the homicide is proved, the bar-
barity of the act is held not to afford a presumption of insanity. The State
V, Stark, 1 Strobh. 479.
FA&T v.] GBNBBAL PBINCIPLES. 7
description, an important distinction is to be observed. They
are not to be asked whether the facts, sworn to by other wit-
nesses, who have {ureceded them, amount to proof of insa-
nity ; for this, as has been observed by a learned Judg^, is
removing the witness from the witness-box into the jury-box.^
(^Even where the medical or other professional witnesses
have attended the whole trial, and heard the testimony of the
other witnesses, as to the facts and circumstances of the case,
they are not to judge of the credit of the witnesses, or of the
truth of the facts testified by others. It is for the jury to de-
cide whether such facts are satisfactorily proved. And the
proper question to be put to the professional witnesses is this :
If the symptoms and indications testified to by other wit-
nesses are proved, and if the jury are satisfied of the truth of
them, whether, in their opinion, the party was insane, and
what was the nature and character of that insanity ; what
state of mind did they indicate ; and what they would expect
would be the conduct of such a person, in any supposed cir-
cumstances." ^
§ 6. In regard to insanity from drunkenness^ we have al-
ready adverted to the distinction between criminal acts, the
immediate result of the fit of intoxication, and committed while
it lasts, and acts, the result of insanity, remotely produced by
previous habits of gross intemperance ; the former being pun-
ishable, and the latter not.^ It may here be added, that
drunkenness may be taken into consideration, in cases where
what the law deems sufficient provocation has been given ;
because the question, in such cases, is, whether the fatal act
is to be attributed to the passion of anger, excited by the pre-
vious provocation ; and this passion is more easily excited in
a man when intoxicated, than when he is sober. So, where the
1 Per Ld. Brougham, in McNaghten's case, Hans. Pari. Deb. VoL 67,
p. 728; 10 Clark & Fin. 200- 212, S. C.
> Per Shaw, C. J., in Commonwealth v. Bogers, 7 Met. 500, 505. And
see AnUj VoL 2, ^ 873, note.
3 AnU, VoL 2, ^ 374.
8 LAW OF EVIDBNCB. [PART V.
question is, whether words have been uttered with a deliberate
purpose, or are merely low and idle expressions, the drunkenness
of the person uttering them is proper to be considered. But
where there is a previous determination to resent a slight affront
in a barbarous manner, the state of intoxication, in which the
prisoner was when he committed the deed, ought not to be
regarded, for it furnishes no excuse.^ And it seems also, that
if a person, by the unskilfulness of his physician, or the con-
trivance of evil-minded, persons, should eat or drink that
which causes frenzy, this puts him into the general condition
of an insane person, and equally excuses him.'
§ 7. As to persons acting under the constraint of superior
powers and therefore not criminally amenable, the principal
case is that of a feme covert ; who is considered by the law
as so far under the power and authority of her husband, that
if she commit any crime by his command or coercion, except
those of treason and homicide, (and perhaps some others,)
she is not held guilty.^ Whether, where the act is done by
1 Bex V. Thomas, 7 C. & P. 817, per Parke, B. And see Begina t7. Cruse,
8 C. & P. 546 ; Marshall's case, 1 Lewin, 76 ; The State t7.McCants, 1 Speers,
384 ; The State v. Comwell, Mart & Yerg. 157 ; The State v. Swan, 4
Hutnph. 186 ; 1 Buss, on Crim. 8 ; S Amer. Jur. 1 - 20 ; Bex v. Meakiu, 7 C.
& P. 297 ; Bex v, Carroll, Id. 145.
2 1 Hal. P. C. 32.
3 4 Bl. Comm. 28, 29; 1 Hal. P. C. 45, 47, 434. Lord Hale, in the first
of the places cited, excepts only treason and murder^ in ^ regard of the hei-
nousness of those crimes " ; in the second, he excepts '* treason^ murder^ or
homicide " ; in the third, he excepts treason^ murder, and manslaughter. Lord
Bacon excepts treason only; saying that the wife is excused in cases of
felony, Bac. Max. p. 26, 27, 32 ; Beg. 5, 7. And this agrees with the case
in 27 Ass. 40, cited in Bro. Abr. tit Corone, pi. 108 ; where it was held, that
a woman arraigned oi felony, could not be adjudged guilty, the act being
done by command of her husband. Blackstonc states the exception to be
not only of treason, but of " crimes that are mala in se, and prohibited by
the law of nature, as murder, and the like " ; 4 BI. Comm. 2d. Mr. Bussell
adopts this exception, and extends it to robbery also. 1 Buss, on Crim. 18.
Mr. Starkie states the exception as extending not only to treason, murder,
and manslaughter, but to assaults and batteries, and " any other forci-
ble and violent misdemeanors, committed jointly by the husband and wife.**
PART v.] . GENERAL PRINCIPLES. 9
the husba/nd and wife jointly^ his coercion is conclusively pre-
sumed by the law, or is only to be inferred prima facie^ and
until the contrary is shown, is a point not perfectly clear. In
earlier times, it seems in such cases to have been the conclu-
sive presumption of law, that the wife was under the hus-
band's coercion. So Blackstone appears to have regarded it,
referring to Lord Hale, and to the laws of King Ina, the
West Saxon.^ Lord Hale, in the place cited, is express, that
if the wife commit larceny by coercion of the husband, she is
not guilty ; adding, that according to some, such is the pre-
sumption if the act be done by command of the husband,
which he says, seems to be law if the husband be present ;
for which he refers to the same law of Ina,^ and to Brooke.^
2 Stark. Evid. 399, cited with approbation by the Recorder of London, in
Regina v. Manning, 2 C. & E. 903, n. And see, accordingly, Purcell on
Crim. PI. &Evid.p.l6,17; Whart. Amer. Crim.Law,p.54, (2ded.) Batin
a case before Burrongh, J., where a wife was indicted jointly with her hus-
band for robbery, he directed the jury to acquit her, on the ground that the
law conclusively presumed that it waff done by coercion of the husband.
1 C. & P. 118, note. In Ohioy it has been held, that coercion by the hus-
band is to be presumed in all crimes under the degree of murder, in the
commission of which she joins with him. The State v. Davis, 15 Ohio, 72.
Whether she is entitled to the benefit of this presumption, in the case of in-
flicting an injury dangerous to life, with intent to murder, which is made a
capital offence by Stat. 1, Vict c. 85, was doubted, in Regina v. Cruse, 8 C.
& p. 541. On the principle of presumed coercion by the presence of the
husband, the wife has been held not liable for larceny ; Rex t*. Knight, 1 (/.
& P. 116; Commonwealth v. Trimmer, 1 Mass. 476 ; Anon. 2 East, P. C.
559 ; receiving stolen goods ; Rex v. Archer, Ry. & M. 143 ; uttering base
coin ; ConoUy's case, 2 Lewin, 229 ; Rex v. Price, 8 C. & P. 19 ; and bur-
glary, J. Kelyng, p. 31. See further, 1 Russ. on Crim. 18, 25, with the notes
of Mr. Greaves. In the Commonwealth v. Neal, 10 Mass. 152, where the hus^
band and wife were jointly indicted for an assault and battery, it was spe-
cially found that she committed it in company with and commanded by her
husband ; and the Court held, that she was not guilty of any civil offence,
committed by the coercion of her husband, or even in his presence ; and
accordingly discharged her. ^
1 4 Bl. Comm. 28, 29 ; 1 Hal. P. C. 45.
3 Q^oniam ipsa (scil. foemina) superiori suo obedire debet. LL. Inie, 57.
3 Brooke states the case, from 27 Ass. 40, of a woman indicted of felony,
and held not guilty, because it was done by command of her husband ; ad-
10 LAW OP EYIDBNCE. [PABT V.
And 80 it was held Id 16 Car. 2, by all the Judges present, in
a case of burglary, committed by the wife jointly with her
husband.^ Mr. Starkie adopts the same conclusion, that the
presumption of law is imperative, in all cases where the hus-
band is present and participating in the act' But Lord
Hale, in another part of his work,^ expresses his own opinion
that the presumption of coercion is not conclusive ; but that,
'* if upon the evidence it can clearly appear that the wife was
not drawn to it by the husband, but that she was the prin-
cipal sector and inciter of it, she is guilty as well as the
husband." The law was so held, by Thompson, B., in a case
before him,^ on the authority of this opinion of Lord Hale ;
and Mr. Russell, from these and some other modern authori-
ties, has deduced the rule to be, that if a felony be shown to
have been committed by the wife, in the presence of the hus-
band, the primd facie presumption is, that it was done by his
coercion ; but such presumption may be rebutted by proof
that the wife was the more active party, or by showing an
incapacity in the husband to coerce.^ The attention of the
jury must be distinctly directed to the inquiry, and their opi-
nion taken upon the fact of coercion ; and if this be not found.
dingy ratio videtar ceo que le ley erUencT que le feme, que est sab potestate
viri, ne osa contra dire son barron. Bro. Abr. Corone, pi. 108.
1 J. Eelyng, p. SI.
3 2 Stark. Evid. S99 ; Id. 337. And so it was held by Bmrongli, J., in
the case cited in a preceding note to this section, from 1 C. & P. 118, note.
3 1 Hal. P. C. 516.
4 Bex V. Hughes, Lancaster, Lent Ass. 1818 ; 3 Lewin, 229, S. C.
s 1 Buss, on Crim. 22. Mr. Greaves, his learned editor, collects from the
cases the following propositions : 1st, that an indictment against husband and
wife jointiy, is not objectionable on demurrer ; nor Sdly, is their conviction
bad on error, or in arrest of judgment ; Sdly, that if he were present, coer-
cion is to be presumed, and the jury must be directed to acquit her ; unless,
4lhl3r, it be proved eitiier that she was the instigator or more active party, or
that he was physically incapable of c^rcing her. Ibid, note (g). And see
ace. Regina v. Cruse, 8 C. & P. 541 ; 2 Mood. C. C. R. 53, S. C. ; Rex v,
Dicks, 1 Russ. on Crim. Id; Archb. Crim. PL and Evid. 17 ; Whart Am.
Crim. Law, 54, (2d ed.) ; Rex v. Archer, 1 Mood. C. C. 143 ; Puicell, Crim.
PI. and Evid. 15 ; Bract lib. 3, c. 82, § 10.
PA&T T.] GBNERAL PBINCIPLBS. 11
she will be entitled to an acquittal.^ In all other cases, ex-
cept where the husband was present, his command or coer-
cion must be proved.
§ 8. In regard to persons under duress per minas^ the rule
of law is dear, that *' no man, from a fear of consequences to
himself, has a right to make himself a party to committing
mischief on mankind." ^ But though a man may not, for any
peril of his own life, justifiably kill an innocent person, yet
where he cannot otherwise escape, he may lawfully kill the
assailant^ And though the fear of destruction of houses or
goods is no excuse in law for a criminal act, yet force upon
the person and present fear of death may in some cases ex-
cuse an act otherwise criminal, while such force and fear con-
tinue ; as, for example, if one is compelled to join and remain
with a party of rebels^
§ 9. It may be added, that where an idiot^ or lunatic^ or in-
fani of tender age^ and too young to be conscious of guilt, is
made the instrumetU of mischief by a person of discretion, the
latter alone is guilty, and may be indicted and punished as
the principal and sole offender. And so is the law, if one by
physical force and violence impel another involuntarily against
a third person, thereby doing to the person of the latter any
bodily harmi^ And generally, where one knowingly does a
criminal act by means of an innocent agent, the employer,
and not the innocent agent, is the person accountable for the
act^
1 Kex V. Archer, atqara.
s Begina v. Tjler, 8 C. & F. 616, per Ld. Denman.
3 4 Bl. Comm. 80 ; 1 HaL F. C. 51.
< Foster, p. 14. The rule or condition, laid down in Sir John Oldcastle's
case, is, that diey joined pro timore mortis, et quod recesserunt quka cito
potoerunt 1 Hal. F. C. 50.
5 Flowd. 19 ; 1 HaL F. C. 484 ; 1 Russ. on Crim. 17, 18.
> Begina v. Bleasdale, 2 C. & K. 768, per Erie, J. ; Regina v. WiUiams,
Idem. 51.
12 LAW OP EVIDBNCB. [PAKT V.
^ 10. It is a cardinal doctrine of criminal jurisprudence,
declared in the Constitution of the United States, that the aC"
cased has a right " to be informed of the nature and cause of
the accusation^^ against him ; or, as it is expressed in other con-
stitutions, to have the offence ^^ fully and plainly^ substantially
and formally described to himP This is the dictate of natu-
ral justice, as well as a doctrine of the common law. The
description, whether in an indictment, or information, or other
proceeding, ought to contain all that is material to constitute
the crime, set forth with precision, and in the customary
forms of law. And if more is alleged than is necessary, yet
if it be descriptive of the o^ence, it must be proved. Thus,
though in an indictment for arson it is sufficient if it appear
that the house was another's and not the prisoner's, yet if the
ownership be alleged with greater particularity, the allegation
must be precisely proved, for it is descriptive of the offence.
This rule is deduced from a consideration of the purposes of
an indictment; which are, first, to inform the accused of the
leading grounds of the charge, and thereby ensile him to
make his defence; secondly, to enable the Court to pro-
nounce the proper judgment affixed by law to the combina-
tion of facts alleged ; and thirdly, to enable the party to plead
the judgment in bar of a second prosecution for the same
offence.^
§ 11. It is also a general rule of criminal law in the United
States, that the party accused is entitled, as of common rights
to be confronted with the witnesses against him. This right
is declared in the Constitution of the United States : and is
also recognized in the constitutions or statutes of nearly all
the States in the Union ; but in England it has not always
been conceded.* Sir Walter Raleigh, on his trial earnestly
demanded <' that he might see his accuser face to face ; " pro-
1 Commonwealth v. Wade, 17 Pick. 895, 899. And see Ante^ Vol. 1,
§ 65; The People v. Stater, 6 Hill, N. Y. Rep. 40.1.
8 3 Hawk. P. C. b. 2, ch. 46, § 9.
TAXr T.] 6BNBRAL PfilKOIPLBS. 13
testing against the admission of a statement in the form of
the substance of an examination, taken in his absence ; but
this was denied him, and the examination was admitted.
Informations of witnesses, against a person chained with fe-
lony, taken by a Justice of the Peace, or a Coroner, under the
statutes of Philip and Mary and subsequent statutes on the
same subject, are admitted as secondary evidence on the trial
of the indictment, by force of those statutes. And though at
this day it is deemed requisite, upon the language of the sta-
tute, that informations before a Justice of the Peace should
be taken in the presence of the prisoner,^ yet formerly it was
held otherwise ; ' and informations returned by the Coroner
are still by some Judges held admissible, though taken in
the prisoner's absence.^ Statutes of similar import have been
enacted in several of the United States; ^ but it is conceived
that, und^r the constitutional provisions above mentioned, no
deposition would be deemed admissible by force of those
statutes, unless it were taken wholly in the prisoner's pre-
sence, in order to afford him the opportunity to cross-examine
the witnesses ; nor then, except as secondary evidence, the
deponent being dead or out of the jurisdiction ; or to impeach
his testimony given orally, at the trial.^ Depositions are in
1 Rex i;. Fune, 5Mod. 168 ; 2 Hawk. P. C. b. 2, ch. 46, § 10 ; Rex v,
Eriswell, 3 T. R. 722, 723 ; Rex v. Errington, 2 Lew. 142 ; Rex v. Wood-
cock, 1 East, P. C. 856 ; Rex v. Smith, 2 Stark. R. 208. This last case was
fullj reviewed, and Bomewhat questioned, in Regina v. Walsh, 6 Cox, C. C.
115.
s Triak per Pais, 462. And see 2 Hale, P. C. 284.
3 Rex 17. Thatcher, T. Jones, 53. The reason ^ven is, that they are
quasi inquests of office, and part of the proceedings in the case. Ibid. J.
Kely. 55 ; 3 T. R. 722 ; Sills v. Brown, 9 C. & P. 601 ; Bull. N. P. 242 ;
Rex V. Grady, 7 C. & P. 650 ; Rex v. Coveney, Id. 667 ; 2 Phil. Ev. 69, 70,
(9th ed.) The unsoundness of this distinction is convincingly shown by Mr.
Starkie. . See 2 Stark. Ev. 277- 279, (6th Am. Edit) And see 2 Russ. on
Grim. 892.
4 See Ante, VoL 1, § 224.
5 See Bostick v. The State, 3 Humph. 344 ; The State v. Bowen, 4 Mc-
Cord, 254 ; The State v. Valentine, 7 Ired. 225 ; N. Yoric Rev.' St Vol. 2,
p. 794, § 14.
VOL. III. 2
14 LAW OP BVIDBNOE. [PAKT V-
no case admissible in criminal proceedings, unless by force of
express statutes, or, perhaps, by consent of the prisoner in
open CJourt^
§ 12. The answer to a criminal prosecution, in the Courts
of Common Law, where the trial is upon the merits of the
case, is, that the party is not guilty of the offence charged ; no
other form of issue being required. This plea involves a
denial of every materied fact alleged against him, and of
course, according to the principles already stated,^ the prose-
cutor is bound affirmatively to prove the whole indictment ;
or, as it has been quaintly expressed, to prove Qi/ts, quandoj
ubij quody cujus^ quomodo, qunre. The allegations of time and
place^ however, are not material to l>e proved, as laid, except
in those cases where they are essential either to the jurisdic-
tion of the Court, or to the specific character of the offence.
Thus, for example, where the night time is material to the
crime, as in burglary, or, in some States, one species of arson,
it must be strictly proved. So, in prosecutions for violation
of the Lord^s day, and several other cases. So, where the
place is stated as matter of local description, it must be
proved as laid ; as in indictments for forcible entry, or for
stealing in a dwelling-house, and the like ; or, where a pe-
nalty is given to the poor of the town or place where the of-
fence was committed ; or, where a town is indicted for neg-
lecting to repair a highway within its bounds. But in all
cases it is material to prove, that the offence was committed
within the county where it is laid and where the trial is had,
the jurisdiction of the Court and jury being limited, in crimi-
nal cases, to that county.^
§ 13. Another cardinal doctrine of criminal law, founded in
1 Dominges v. The State, 7 Sm. & M. 475 ; McLane t;. Georgia, 4 Geo.
Rep. 336. In seyeral of the United States, depositions may, in certain con-
tingencies, be taken and used in criminal as in civil cases. See Antet Vol. 1,
§ 321.
« See Ante, Vol. 1, § 74 - 81.
3 2 Ruas. on Crimes, 800, 801.
PABT v.] GENERAL PRINCIPLES. 15
natural justice, i^, that it is the intention with which an act was
done, that constitutes its criminality. The intent and the act
must both concur, to constitute the crime,^ Actus nonfacit
reuniy nisi mens sit rea? And the intent must therefore be
proved, as well as the other material facts in the indictment.
The proo( may be either by evidence, direct or indirect, tend-
ing to establish the fact ; or by inference of law from other
facts proved. For though it is a ma^m of law, as well as
the dictate of charity, that every person is to be presumed
innocent until he is proved to be guilty ; yet it is a rule
equally sound, that every sane person must be supposed to
intend that which is the ordinary and natural consequence of
bis own purposed act. Therefore, *^ where an act, in itself
indifferent^ becomes criminal if done with a particular intent,
there the intent must be proved and found ; but where the act
is in itself unlawful^ the proof of justification or excuse lies on
the defendant ; and in failure thereof^ the law implies a crim-
inal intent." ^
§ 14. This rwte, that every person is presumed to contem-
plate the ordinary and natural consequences of his own actSj
is applied even in capital cases.^ Because men generally act
1 7 T. R. 514, per Ld. Eenjon. Cogitationis pcenam nemo patitur. Dig.
lib. 48, tit. 19,1. 18.
« 8 Inst 107.
3 Per Ld. Mansfield, in Rex v. Woodfall, 5 Burr. 2667.
4 In York's case, 9 Met. 103, this role was stated and illnstrated by Shaw,
C. J., in the following terms : — "A sane man, a voluntary agent, acting upon
motives, must be presumed to contemplate and intend the necessary, natural,
and probable consequences of his own acts. If, therefore, one voluntarily or
wilfully does an act which has a direct tendency to destroy another's life, the
natund and necessary conclusion from the act is, that he intended so to de-
stroy such person's life. So, if the direct tendency of the wilful act is to do
another some great bodily harm, and death in fact follows, as a natural and
probable consequence of the act, it is presumed that he intended such con-
sequence, and he must stand legally responsible for it. So, where a danger-
ous and deadly weapon is used, with violence, upon the person of another,
as this has a direct tendency to destroy life, or do some great bodily harm to
the person assailed, the intention to take life, or to do him some great bodily
16 LAW OF EYIDSNCE. [PART V.
deliberately and by the determinations of their own will, and
not from the impulse of blind passion, the law presumes that
every man always thus acts, until the contrary appears.
Therefore, when one man is found to have killed another, if
the circumstances of the homicide do not of themselves show
that it was not intended^ but was accidental^ it is to be pre-
sumed that the death of the deceased was designed by the
slayer ; and the burden of proof is on him, to show that it
was otherwise. And because, ordinarily, no man may law-
fully kill another, and intentional homicides are in general
the result of malice and evil passions, or proceed from <^ a
heart regardless of social duty, and fatally bent on mischief; "
in every case of intentional homicide, not other^dse explained
by its circumstances, it is further to be presumed that the
slayer was actuated by malice ; ^ and here also, the burden of
proof is on him, to show that he was not ; but that the act
was either justifiable or excusable.^
§ 15. In ih'^ proof of intention^ it is not always^necessary
hann, is a necessary condasiaa from the act" And see AfUe^ Vol. 1} § 34 ;
Rex V. Farrington, Bus. & Bj. 207 ; Commonwealth v, Webster, 5 Gush.
305.
1 *' Malice, although in its popular sense it means hatred, ill will, or hos-
tility to another, yet, in its legal sense, has a very different meaning, and
characterizes all acts done with an evil disposition, a wrongful and unlawful
motive or purpose ; the wilful doing of an injurious act without lawAil ex-
cuse." 9" Met 104. And see 4 B. & C. 255 ; Wills v. Noyes, 1 2 Pick. $24 ;
1 Rubs, on Crimes, p. 483, n. (Sd edit) ; McPherson v. Daniels, 10 B. & C.
272, per Littledale, J.; Commonwealth v, Webster, 5 Cush. 304, per
Shaw, C. J.
3 See York's case, 9 Met 103, where, upon a diversity of opinion among
the learned Judges, the question whether the law implied malice from the
fact of killing, underwent a masterly discussion, exhausting the whole subject
This case and its doctrines are ably examined in the North American Re-
view for Jan. 1851, p. 178-S04. See also, Best on Presumptions, § 128,
129 ; Best's Principles of Evidence, § 306 ; Alison's Crim. Law of Scotland,
p. 48, 49 ; Rex v. Greenacre, 8 C. & P. 85. The State v. Smith, 2 Strobh.
77 ; Hill's case, 2 Gratt 594. In 0/tto, the presumption of law against the
prisoner, from the mere fact of killing, is, that he committed a murder of
the second degree. The State «. Turner, Wright, R. 20. So also in Vtr-
ginia. Hill's case, supra.
PABT v.] GENERAL PRINCIPLES. 17
that the evidence should apply directly to the particular act,
with the commission of which the party is charged ; for the
unlawful intent in the particular case may well be inferred
from a similar intent, proved to have existed in other trans-
actions, done before or after that time.^ Thus, upon the trial
of a person for maliciously shooting another, the question be-
ing whether it was done by accident or design, evidence was
admitted to prove that the prisoner intentionally shot at the
prosecutor, at another time, about a quarter of an hour dis-
tant from the shooting charged in the indictment^ So,
upon an indictment for sending a threatening letter, the mean-
ing and intent of the writer may be shown by other letters
written, or verbal declarations made, before and after the let-
ter in question.^ So, upon a trial for treason in adhering to
the enemy, and proof that the party was seen among the
enemy's troops, evidence of a previous mistake of the pri-
soner, in going over to a body of his own countrymen, sup-
posing them to be enemies, was held admissible to show the
intent with which he was afterwards among them.^ So also,
I Though the OTidence offered in proof of intention, or of guilty know-
ledge, may also prove another crime, that circnmstance does not render it
inadmissible, if it be receivable in all other respects. Begina v. Dossett, 2 C.
& K. 806. And where several larcenies were charged in one coant, and the
Judge directed the Jury to confine their attention to one particular charge, it
was held, that the prosecutor was entitled to give evidence of all the charges,
in order to show a felonious intent Begina v, Bleasdale, Id. 765. But in a
more recent case, upon a charge of feloniously receiving stolen gobds, it was
held, that the possession of other stolen goods, not connected with the imme-
diate charge, was not admissible in proof of guilty knowledge ; as it could
not lead to any such conclusion, but on the contrary was quite consistent
with the supposition that on the former occasions, the goods had been stolen
by the prisoner himself. Lord Campbell, in this^case, said : — " With regard
to the admission in evidence of proof of previous utterings, upon indictments
for uttering forged notes, I have always thought that those decisions go a
great way ; and I am by no means inclined to apply them to the criminal
law generally." Begina v. Oddy, 5 Cox, C. C. 210, 315.
9 Rex V. Yoke, Bus. & Ry. 581.
3 Bex V. Bobinson, 2 Leach, Cr. Cas. 749 ; Rex v. Tucker, Ry. & M. 184 ;
Reg. V. Eain, 8 C. & P. 187.
4 Malin's case, 1 Dal. 33.
2*
18 LAW OP BVIDBNCB. [PAKT V.
in cases of homicide, evidence of former hostility and me-
naces on the part of the prisoner, against the deceased, are
admissible in proof of malice.^ The like evidence of acts and
declarations at other times, in proof of the character and in-
tent of the principal fact charged, has been admitted in
trials for arson,^ robbery ,8 libel,* malicious mischief, ^ for-
gery,® and other crimes. In regard to the distance of time
between the principal fact in issne and the coUateral facts pro-
posed to be shown in proof of the intention, so far as it affects
the admissibility of the evidence, no precise rule has been laid
down, but the question rests in the discretion of the JudgeJ
Evidence of facts transacted three months before,^ and one
month afterwards,** has been received, to prove guilty know-
ledge, in a charge of forgery ; and evidence of facts occurring
five weeks afterwards, has been rejected.^® It has been held,
that in the case of subsequent facts, they must appear to have
some connection with the principal fact charged. Thus, in a
charge of forgery, evidence of the subsequent uttering of other
forged notes, was held inadmissible, unless it could be shown
that they were of the same manufacture.^^ But in regard to
I 1 Phn. Ev. 476.
9 Eegina v, Taylor, 6 Cox, C. Cas. 138.
3 Rex V. Winkworth, 4 C. & P. 444.
4 Stuart t;. Lovell, 2 Stark. R 93 ; Rex v. Pearce, 1 Peake's Cas. 75. The
same principle is applied in actions for slander. Rustell v. Macquister,
1 Campb^ 49, n. ; Charlter v. Barrett, 1 f eake's Cas. 22 ; Mead v. Daubignj,
Id. 125 ; Lee v. Huson, Id. 166.
5 Rex V, Mogg, 4 C. & P. 864 ; Re^a v. Dossett, 2 C. & K 306.
6 Rex V, Wylie, 2 Russ. on Crimes, 403, 404, (Sd edit.) ; 1 New Rep.
(4 Bos. & P.) 92, S. C; The State v. Van Hereten, 2 Penn. 672 ; Hess ».
The State, 5 Ham. 5 ; Reed v. The State, 15 Ohio, R. 217 ; The State v.
Williams, 2 Rich. 418; Commonwealth v. Steams, 10 Met 256; Common-
wealth V, Martin, 11 Leigh, 745 ; Rex v, Millard, Ross. & Rj. 245 ; Rex o.
Tavemer, 4 C. & P. 413, note (a.)
7 Rex V. Salisboxy, 2 Russ. on Crimes, 776, (3d ed.) 5 C. & P. 155, S. C.
but not S. P.
8 Rex V. Ball, 1 Campb. 824 ; Ross. & R)r. 132. And see Rex v. Balls,
7 C. & P. 426, 429.
9 Rex V, Smith, 4 C. & P. 411.
10 Rex V. Tayemer, 4 C. & P. 413, note (a.)
II Ibid.
PART v.] GEZnERAL FBINCIPIiBS. 19
the previous uttering of forged notes of a different kind,
though the admissibility of such evidence has been thonght
questionable, it is now continnally admitted. For evidence
that a man had uttered forged notes, of different descrip-
tions, raises a presumption that he was in the habit of procur-
ing forged notes, and that he had the criminal knowledge
imputed to him.^
§ 16. If several intents are comprised in one allegation in
the indictment, any one of which, being consummated by the
principal fact, would constitute the crime, the allegation is
divisible ; and proof of either of the intents, together with the
act done, is sufficient. So it has been held, in the case of an
assault, with intent to abuse and carnally know a female
child ; ^ and of a libel, with intent to defame certain magis-
trates named, and to bring into contempt the administration
of justice.^ So, of an alleged intent to defraud A., where the
proof is of an intent to defraud A. and B.^
§ 17. The intentj moreover, must be proved as alleged. If
the act is alleged to have been done with intent to commit
one felony, and the evidence be of an intent to commit ano-
ther, though it be of the like kind, the variance is fatal. Thus,
where a burgleity was charged, with intent to steal the goods
of W., and it appeared that no such person as W. had any
property there, but that the intent was to steal the goods of
D., the alleged owner of the house ; and that the name of W.
had been inserted by mistake, instead of D. ; it was held, that
the indictment was not supported.^ So, if it be alleged that
the prisoner cut the prosecutor, with intent to murder or
disable him, and to do him some great bodily harm, and the
evidence be merely of an intent to prevent a lawful arrest.
1 Bayley on Bilb, 619, (Sd Am. ed.)
3 Bex V. DawBon, 8 Stark. R. 62.
3 Bex V. Evaiifl, 3 Stark. R. 85.
* Veazie's case, 7 Greenl. 181.
5 Bex V. Jenkfl, 2 Leach, Cr. Ca& 774; 2 East, P. C. 614.
20 LAW OP BVIDENCB. [PART V.
it is a fatal variance ; unless it appears that he intended the
injury alleged, for the purpose of preventing the arrest^
§ 18. ]put in the proof of an intent to defraud a particular
person^ it is not necessary to show that the prisoner had that
particular person in his mind at the time ; it is sufficient, if
the act done would have the effect of defrauding him ; for the
law presumes that the party intended to do that which was
the natural consequence of his act Thus, where, on an in-
dictment for uttering forged bank notes, with intent to defraud
the bank, the jury found that the intent was to defraud who-
ever might take the notes, but that the prisoner had in fact
no intention of defrauding the bank, in particular ; the con-
viction was held right ; for it is an inference of law that the
party, in such cases, intended to defraud the person who
would have to pay the bill or note, if it were genuine ; and
this inference is to be drawn, although, from the manner of
the execution of the forgery, or from the ordinary habit of
caution on the part of that person, it would not be likely to
impose upon him ; and although, from its being a negotiable
instrument, it would be likely to defraud others before it
should reach him.^
§ 19. It may, in conclusion of this point, b# observed, that
though, in the proof of criminal intent or guilty knowledge^ any
other oc^^of the party, contemporaneous with the principal trans-
action, may be given in evidence, such as, the secret possession
of other forged notes or bills, or o^impleraents for counterfeit-
ing, or other instruments adapted to the commission of the
crime charged, or the assumption of different names, or the
like ; « yet such evidence regularly ought not to be introduced,
1 Rex V, Boyce, 1 Ry. & M. 29 ; Rex v. Duffin, Rus. & Ry. 365 ; Rex v,
Gillow, 1 Ry. & M. 85 ; 1 Lewin, Cr. Cas. 67.
3 Rex V. Mazagora, Rus. & Ry. 291 ; Bayley on Bills, 618, (2d Am. ed.)
Sheppard's ease, Rus. & Ry . 169 ; Regina v. Marciu, 2 Car. & Eir. 856.
3 See Bayley on BiUs, 618, 619, (8d Am. ed.) ; Rex v. MiUard, Rus. &
R. 245 ; Rex v. Wylie, 1 New Rep. 92 ; Rex t?. Hough, Rus. & Ry. 130 ;
Rex V. Harris, 7 G. & F. 429; Infra, § 110.
PABT v.] GENERAL FRINGIPLES. 21
until the principal fact, constitating the corpus delicti^ has
been established.
§ 20. If a criminal act is done through mts^oAe or ignonance
of the law^ it is nevertheless punishable as a crime. Igno-
rance of the municipal law is not allowed to excuse any one
who is of the age of discretion, and compos mentis, from the
penalty for the breach of it ; for every such person is bound to
know the law of the land, regulating his conduct, and is pre-
sumed so to do.^ Ignorantia juris, quod quisquis tenetur scire,
neminem ezcusat, is a maxim of law, recognized from the ear-
liest times, both in England, and th9)ughout the Roman em-
pire. Thus, if a man thinks he has a right to kill a person
outlawed or excommunicated, and does so, it is murder.^
And the rule is applied to foreigners, charged with criminal
acts here, which they did not in fact know to be such, the acts
not being criminal in their own country.^
§ 21. Ignorance or mistake of fact may in some cases be
admitted as an excuse ; as, where a man, intending to do a
lawful act, does that which is unlawful. Thus, where one,
being alarmed in the night by the cry that thieves had broken
into his house, and searching for them, with his sword, in the
dark, by mistake kiUed an inmate of his house, he was held
innocent.^ So, if the sheep of A. stray into the flock of B.,
who drives and shears them, supposing them to be his own,
it is not larceny in B.^ This rule would seem to hold good,
1 lHal.P.C.42; Doct & Stad. Dial. 2, c. 46 ; 2Co.S5; Bilbie v. Lnin-
ley, 2 East, 469 ; Co. Lit Pref. p. 86 ; Broom's Maxims, p. 122.
s 4 Bl. Comm. 27 ; Plowd. 843. Begula est, juris quidem ignorantiam
cuique nocere^facH vero ignorantiam non nacere. Dig. lib. 22, tit. 6, 1. 9.
Lord Hale expresses it in broader terms : Ignarantia eontmy quce quis scire
tenettir, non excusat, 1 HaL P. C, 42. This role, in its application to eiyil
transactions, was discussed, with great depth of research, by the learned
counsel, in Haven v. Foster, 9 Pick. 112. It is founded in the necessities of
civil government ; and the dangerous extent to which the excuse of ignorance
might otherwise be carried.
3 Rex V, Esop, 7 C. & P. 466.
4 Levetfs case, Cro. Car. 588; 1 Hal. P. C. 42.
5 1 Hal. P. C. 607.
22 LAW 0? EviDEarcE. [part y.
in all cases where the act^ if done knowinglyy would be tna-
lum in se. Bat where a statute commands that an act be
done or omitted, which, in the absence of such statute, might
have been done or omitted without culpability, ignorance of
the fact, or state of things contemplated by the statute, it seems
will not excuse its violation. Thus, for example, where the
law enacts the forfeiture of a ship, having smuggled goods on
board, and such goods are secreted on board by some of the
crew, the owner and officers being alike innocently ignorant
of the fact, yet the forfeiture is incurred, notwithstanding their
ignorance. Such is also the case in regard to many other fis-
cal, police, and other lawf and regulations, for the mere vio-
lation of which, irrespective of the motives or knowledge of
the party, certain penalties are enacted ; for the law, in these
cases, seems to bind the party to know the facts and to obey
the law, at his periL
§ 22. As it is required, in indictments, that the names of
ike persons injured^ and of all others whose existence is legally
essential to the charge^ be set forth, if known, it is, of course,
material that they be precisely proved as laid. Thus, the
name of the legal owner, general or special, of the goods
stolen or intended to be stolen, must be alleged and proved.^
And if the person be described as one whose name is to the
jurors unknown, and it be proved that he was known, the vari-
ance is fatal, and the prisoner will be acquitted.^ But this
averment will be supported by proof that the name of the
person could not be ascertained by any reasonable dili-
gence.^ If there be two persons, father and son, of the same
name and resident of the same place, the father will be un-
derstood to be designated in the indictment, unless there be
the addition of junior^ or some other designation of the son.^
Arid if the person, who was the subject of the crime, be
1 Rex V. Jenkfl, 2 East, 614 ; Infray tit Larcsnt.
9 Rox V. Walker, 3 Campb. 264 ; Rex v. Robinson, 1 Hdt, 595. Bat see
Hulstead's case, 5 Leigh, 724.
8 Begina v. Campbell, 1 C. & K 82 ; Regina v. Stroud, Id. 187.
« The State v. Vittum, 9 New Hamp. 519 ; Eincaid v. Howe, 10 Mass.
205 ; StebbiDg v. Spicer, 8 M. G. & S. 827.
PABT v.] GENERAL PRINCIPLES. 23
described with nnnecessary particularity, as, in a charge of
polygamy, by marrying " E. C. widow y'^ this is a matter of es-
sential description, to be strictly proved;^ though, in the
description of the prisoner herself, as being " the wife of A.
B." these words have been held immaterial to be proved.^
The name of the prisoner needs no proof, unless a misnomer
is pleaded in abatement ; in which case the substance of the
plea is, that he is named and called by the name of C. D., and
ever since the time of his birth has always been named and
called by that name ; with a traverse of the name stated in
the indictment. The affirmative of this issue, Vhich is on
the prisoner, is usually proved by production of the certificate
of his baptism, with evidence of his identity ; or, by parol evi-
dence that he has always been known and called by the name
alleged in his plea, and not by the name stated in the indict-
ment. This plea is usually answered by replying that he was
and is as well known and called by the one name as by the
other. But to prove this, evidence that he has once or twice
been called by the name in the indictment, will not suffice.^
Should the defendant in his plea also state that he was bap-
tized by the name he alleges, it has been held, that the alle-
gation is material, and that he must prove it.^ But this may
perhaps be questioned, as, in the ordinary mode of pleading,
it would be but matter of inducement to the principal
allegation, namely, that he in fact had always borne a differ-
ent name from that by which he was indicted.^
§ 23. It may be added in this place, as a rule equally appli-
1 Rex v. Deeley, 4 C. & P. 579, per tot Cur. The contrary had been
ruled at the assizes, in the description of the owner of goods stolen. Rex v.
Ogilvie, 2 C. & P. 230. And see Rex v, Tennent, 4 C. & P. 580, n.
9 Commonwealth v. Lewis, 1 Met. 151. See further on the subject of
this section, Ante^ Vol. 1, § 65. In the following cases of infanticide, a vari-
ance in proving the child's name was held fatal. Clark's case, R. & Ry. 858 ;
Begina v. Stroud, 1 C. & E. 187 ; 2 Mood. 270.
3 Mestayer v. Hertz, 1 M. & S. 453, per Ld. EUenborough.
^ Hohnan v. Walden, 1 Salk. 6 ; Weleker v. Le Pelletier, 1 Campb. 479.
5 8 Chitty on Plead. 902, 1142 ; 1 Stark. Ey. 886, 390, cum not
24 LAW OF EVIBBNCE.' [PABT Y.
cable in criminal as in civil cases, that the substance of the
issue mast be proved. This rule has already been discussed
in a preceding volume.^
§ 24. The same may be observed as to the burden of proof,
the rules in regard to which have been stated in the same
volume.*
1 See Ante^ yd. 1, Part 2, ch. 2, per tot. § 66 - 78.
S See Ante, Vol. 1, Fart 3, ch. 3, § 74 -81. The question as to the bar-
den of proTing the negative averment of disqualification in the defendant,
arising from his toant of license to do the act complained of, was fully con-
sidered in the Commonwealth v. Thurlow, 24 Pick. 874, which was an indict-
ment for selling spiritaous liquors without license. The Chief Justice deli-
vered the judgment of the Court upon this point in the following terms : —
f << The bst exception necessary to be considered is, that the court ruled that
the prosecutor need give no evidence in support of the negative averment,
that the defendant was not duly licensed, thereby throwing on him the bur-
den of proving that he was licensed, if he intends to rely on that &ct by
way of defence. The Court entertain no doubt, that it is necessary to aver
in the indictment, as a substantive part of the charge, that the defendant, at
the time of selling, was not duly licensed. How far, and whether under
various circumstances, it is necessary to prove such negative averment, is
a question of great difficulty, upon which there are conflicting authorities.
Cases may be suggested of great difficulty on either side of the general ques-
tion. Suppose under the English game laws, an unqualified person, prose-
cuted for shooting game without the license of the lord of the manor, and
after the alleged offence and before the trial, the lord dies, and no proof of
license, which may have been by parol, can be given ? Shall he be con-
victed for want of such affirmative proof, or shall the prosecution fail for want
of proof to negative it ? Again, suppose under the law of this Common-
^ wealth it were made penal for any person to sell goods as a hawker and ped-
ler, without a license from the selectmen of some town in the Commonwealth.
Suppose one prooecuted for the penalty, and the indictment, as here, con-
tains the negative averment, that he was not duly licensed. To support this
negative averment, the selectmen of more than three hundred towns must be
called. It may be said, that the difficulty of obtaining proof is not to super-
sede the necessity of it, and enable a party having the burden, to succeed
without proof. This is true ; but when the proceeding is upon statute, an
extreme difficulty of obtaining proof on one side, amounting nearly to im-
practicability, and great facility of furnishing it on the o^er, if it exists,
leads to a strong inference, that such course was not intended by the legisla-
ture to be leqoized. It would no doubt be competent for the legislature so
PABT y.] GENERAL PBINCIPLES. 25
§ 25. Upon the admissibility of evidence of character ^
whether of the piiBoner, or of the party on whom the crime is
alleged to have been committed, there has been some fluctua-
tion of opinion. Evidence of the prisoner's good character,
was formerly held to be admissible, in favorem vitcBy in all
cases of treason and felony ; but this reason is now no longer
given, the true question being, whether the character is in
issue. '^ I cannot, in principle," said Mr. Justice Patteson,
^ make any distinction between evidence of facts, and evi-
dence of character. The latter is equally laid before the jury,
as the former, as being relevant to the question of guilty or
to firame a statute proTision, as to hold a party liable to the penalty, irho
should not produce a license. Besides, the common-law rules of evidence
are founded upon good sense and experience, and adapted to practical use,
and ought to be so applied as to accomplish Ihe purposes for which they
were framed. But the Court have not thought it necessary to decide the
general question; cases may be affected by special circumstances, giving
rise to distinctions applicable to them to be considered as they arise. In the
present case, the Court are of opinion that the prosecutor was bound to pro-
duce/^rtma/acte evidence, that the defendant was not licensed, and that no
evidence of that averment having been given, the verdict ought to be set
aside. The general rule is, that all the averments necessary to constitute
the substantive offence, must be proved. If there is any exception, it is
from necessity, or that great difficulty, amounting, practically, to such neces-
sity ; or in other words, where one party could not show the negative, and
where the other could with perfect ease show the affirmative. But if a p&tty
is licensed as a retailer under the statutes of the Commonwealth, it must
have been done by the county commissioners for the county where the cause
is tried, and within one year next previous to the alleged offence. The
county commissioners have a clerk and are required by law to keep a record,
or memorandum in writing, of their acts, including the granting of licenses.
This proof is equally accessible to both parties, the negative averment can
be proved with great facility, and therefore, in conformity to the general
role, the prosecutor ought to produce it, before he is entitled to ask a jury to
convict the party accused." 24 Pick. 380, 881. This point has since been
settled otherwise, in MassackusetU^ by Stat 1844, ch. 102, which devolves
on the defendant the burden of proving the license. So it is held at com-
mon law in North Carolina ; The State v. Morrison, 3 Dev. 299. And in
Kentucky; Haskill v. The Commonwealth, 3 B.Monr. 842. And in Maine;
The State v. Crowell, 12 Shepl. 171. And in Indiana; Shearer v. The
State, 7 Bhickf. 99. And see ante, Vol. 1, § 99.
VOL. in. 3
26 . LAW 01* iTiBmrcs. [part y.
9
not gtdlty. The object of laying it before the jory is to in-
duce tbem to believe, from the improbability that a person of
good character should have conducted himself as alleged, that
there is some mistake or misrepresentation in the evidence
on the part of the prosecution, and it is strictly evidence in
the case." ^ The admissibility of this evidence has sometimes
been restricted to doubtful cases ;^ but it is conceived that if
the evidence is at all relevant to the issue, it is not for the
Judge to decide, before the evidence is all exhibited, whether
the case is in fact doubtful or not; nor indeed afterwards ;
the weight of the evidence being a question for the Jury alone.
His duty seems to be, to leave the Jury to decide, upon the
whole evidence, whether an individual, whose character was
previously unblemished, is or is not guilty of the crime of
which he is accused.* But the prosecutor is not allowed to
call witnesses to the general bad character of the prisoner,
unless to rebut the evidence of his good character already
adduced by the prisoner ; ^ and even this has recently, in Eng-
land, been denied.^ The evidence, when admissible, ought
to be restricted to the trait of character which is in issue ; or,
as it is elsewhere expressed, ought to bear some analogy and
1 Rex V. Stannard, 7 C. & P. 673. Williams, J., concurred in this opi-
nion. And 80 is the law in Scotland. Alison's Fl*act. p. 629. The same
view was taken by that eminent jurist, Chief Justice Parsons, of Massachu-
setts, who thought that the prisoner ought to be allowed to give his general
character in evidence, in all criminal cases. Commonwealth v. Ilardy,
2 Mass. 81 7. The other Judges concurred in admitting the oddence in that
case, infavarem viUn^ it being a trial for murder ; but were not prepared at
that time to go &rther. And see the State v. Wells, Coxe, R. 424 ; Wills
on Cir. £y. p. 131 ; Commonwealth v, Webster, 5 Cush. 324, 325 ; Whar-
ton's Am. Crim. Law, p. 233 - 237, 2d ed.
2 U. States V. Roudenbush, 1 Baldw. 514. And see Rex v. Davison,
31 How. St Tr. 217, per Ld. Ellenborough ; Wills on Cir. Ev. p. 131 ; The
State V. McDaniel, 8 Sm. & M. 401.
3 2 Ruse, on Crim. 785, 786.
4 Bull. N. P. 296 ; Commonwealth v. Webster, 5 Cush. 325 ; The People
©.White, 14 Wend. Ill ; Carter ». The Conmionwealth, 2 Virg. Cas. 169 ;
Best on Presumpt § 156, p. 214 ; The State v. Merrill, 2 Dev. 269. The
prisoner cannot, for this purpose, rely on the general presumption of inno-
cence ; his good character must be otherwise proved. The State v, Fordf
3 Strobh. 517, n.
& Beg. V. Burt, 5 Cox, C. C. 284.
PABT v.] GENERAL FBINOIPLES. 27
reference to the nature of the charge ; it being obviously ir-
relevant and absurd, on a charge of stealing, to inquire into
the prisoner's loyalty ; or, on a trial for treason, to inquire
into his character for honesty in his private dealings.^
§ 26. But it is not in all public prosecutions for breach of
law, that evidence of the party's general character is admissi-
ble. In a trial of an information by the Attorney-General,
for keeping false weights, and for offering to corrupt an offi-
cer, this evidence was rejected by Ch. Baron Eyre ; who said,
that it would be contrary to the true line of distinction to
admit it, which is this ; that in a direct prosecution for a crime^
such evidence is admissible, but where the prosecution is not
directly for the crime but for the penalty^ as in this informa-
tion, it is not.^ It would seem, therefore, to result, that wher-
ever, in a criminal prosecution, guilty knowledge or criminal
intention is of the essence of the offence, evidence of the
genera] character of the party is relevant to the issue, and
therefore admissible ; but where a penalty is claimed for the
mere act, irrespective of the intention, it is not^
§ 27. In regard to the ch(uracter of the person on whom the
offence was committed^ no evidence is in general admissible,
the character being no part of the res gestce. Hence, where
evidence was offered to prove, that the person killed was in
the habit of drinking to excess, and that drinking made him
exceedingly quarrelsome, savage, and dangerous, and when
. 1 Ante, Vol. 1, § 55 ; 1 PWl. Ev. 469, (9tih ed.) ; 2 Ruas. on Crim. 784 ;
vBest on Fresmnpt. § 153, p. 218.
3 Attorney-Gen. v. Bowman, 2 B. & P. 532, note. From this case, Mr.
Peake has deduced the rule to be, that evidence of character is admissible
•only in prosecutions which subject a man to corporal punishment; and not
in actions or informations for penalties, though founded on the fraudulent
conduct of the defendant. PesJce's Evid. by Norris, p. 14. But the correct-
ness of the former branch of his rule may perhaps be questioned ; inasmuch
as crimes, which are mala in se, are in some cases punished only by a pecu-
niary mulct.
3 See supra, § 25 ; Best on Presumptions, § 153, p. 213.
28 LAW OP BVIDENCK. [PART V.
intoxicated, he frequently threatened the lives of his wife and
others, whom the prisoner had more than once been called
upon to protect against his fury ; all which was matter of
common notoriety ; it was held rightly rejected, as having no
connection with what took place at the time of the homi-
cide.^ The only exception to this rule is in trials for rape, or
for an assault with intent to commit that crime ; where the
bad character of the prosecutrix, for chastity, may, under the
circumstances of particular cases, afford a just inference as to
the probability of her having consented to the act for which
the prisoner is indicted.^ But on a charge of homicide, the
existence of kindly relations between the deceased and the
prisoner, and the expressions of good will and acts of kind-
ness on the part of the latter towards the former, are always
admissible in his favor.^
§ 28. It is further to be observed, that every criminal charge
is to be tried by the rules of evidence recognized by our own
laws. Foreign rules of evidence have no force, as such, in
this country ; nor have the rules of evidence in one State of
the Union any force, on that account, in another State of the
Union. In this respect the law in civil and criminal cases is
the same ; the general rule being this, that so much of the
law as affects the rights of the parties, or goes to the merits
and substance of the case, (ad litis dedsionem,) is adopted
from the foreign country; but the law which affects the
remedy only, or relates to the manner of trial, (ad litis ordi'
nationem,) is taken from the lex fori of the country where the
1 The State v. Field, 2 Shepl. 244. And see York's case, 7 Law Bep.
507-609; The State v. Thawley, 4 Harringt. 562; Quesenberry v. The
State, 8 Stew. & Port. 808 ; The State v. Tidy, 3 Ired. 424. But where it
was doubtfiil wheUier the killing was from a just apprehension of danger,
and in self-preservation^such evidence has been held admissible. Monroe's
case, 5 Geo. R. 85.
s Rex V. Clarke, 2 Stark. R. 241 ; 1 Phil. ETid.468, (9th ed.) ; Rex v.
Barker, 3 C. & P. 589.
8 1 Phil. £▼. 470, (9th ed.) And see further, on the subject of character
in evidence, Wharton's Am. Crim. Law, p. 233-287.
PART v.] GEITEBAL PRINCIPLES. 29
trial is had.^ Thus, though deeds, prepared and witnessed as
prescribed by a statute in Scotland, are admitted to be read
in the courts of that country without farther proof ; yet they
cannot be read in the courts of England, without proof by
the attesting witnesses.^ So, in some of the United States,
deeds duly acknowledged and registered, are by statute made
admissible in evidence, without farther proof of execution ;
while in others, the proof required by the common law is still
demanded in all cases.^ In respect to crimes, they are regarded
by the common law as purely local, and therefore cognizable
and punishable only in the country where they were com-
mitted. No other nation has any right to punish them; or
is under any obligation to take notice of or enforce any judg-
ment rendered in a criminal case by a foreign tribunal.^
§ 29. A distinction is to be noted, between civil and crimi-
nal cases, in respect to the degree or quantity of evidence neces-
sary to justify the Jury in finding their verdict for the govern-
ment. In civil cases, their duty is to weigh the evidence care-
fully, and to find for the party in whose favor the evidence pre-
ponderateSj although it be not free from reasonable doubt But
in criminal trials, the party accused is entitled to the benefit of
the legal presumption in favor of innocence, which, in doubtful
cases, is always sufficient to turn the scale in his favor. It
is therefore a rule of criminal law, that the guilt of the accu-
sed must be fuUy proved. Neither a mere preponderance of
evidence, nor any weight of preponderant evidence, is suffi-
cient for the purpose, unless it generate full belief of the fact,
to the exclusion of all reasonable doubt.^ The oath adminis-
I Haber v. Steiner, 2 Bing. N. C. 202.
3 Yates V. Thomson, 8 CL & Fin. 577, 580, per Ld. Brougham. And see
Story, Confl. Laws, § 634, a, and note.
3 Ante, Vol. 1, ^ 673, note ; 4 Cruise's Dig. Tit 82^ ch. 2, ^ 77, 80, notes ;
and ch. 29, ^ 1, note. See oUier examples in Brown v. Thornton, 6 Ad. &
£L 185, and cases there cited; British Linen Ca v. Drummond, 10 B. & C.
908 ; Clark v. MuUick, 3 Moor, P. C. Rep. 252, 279, 280.
4 Story, Confl. Laws, ^ 620-625; Arde, Vol. 1, ^ 878.
5 1 Stark. £rid. 478. Q^mod dubitas, ne feceris. 1 Hal. P. C. 800. And
3»
30 LAW OP EVIDENCE. [PART V.
tered to the Jurors, according to the common law, is in ac-
cordance with this distinction. In civil causes, they are sworn
" well and truly to try the issue between the parties, accord-
ing to law and the evidence given " them ; but in criminal
causes, their oath is, '^ you shall well and truly try, and true
deliverance make^ between " (the King, or State,) " and the
prisoner at the bar, according," &c.^ It is elsewhere said,
that the persuasion of guilt ought to amount to a moral cer-
tainty, or, '' such a moral certainty as convinces the minds of
the tribunal as reasonable men, beyond all reasonable doubt" ^
see Giles v. The State, 6 Geo. R 276. In Dr. Webster's case ihe learned
Chief Justice expkdned this degree of proof in the following terms : — *^ Then
what is reasonable doubt ? It is a term oflen used, probably pretty well
understood, but not easily defined. It is not mere possible doubt ; because
every thing relating ta human affairs, and depending on moral evidence, is
open to some possible or imaginary doubt. It is that state of the case, which,
after the entire comparison and condderation of all the evidence, leaves the
minds of Jurors in that condition that they cannot say they feel an abiding
conviction, to a moral certainty, of the truth of the charge. The burden of
proof is upon the prosecutor. All the presumptions of law independent of
evidence are in favor of innocence ; and every person is presumed to be in-
nocent until he is proved guilty. If upon such proof there is reasonable
doubt remaining, the accused is entitled to the benefit of it by an acquittal.
For it is not sufficient to establish a probability, though a strong one, arising
from the doctrine of chances, that the fact charged is more likely to be true
dian the contrary ; but the evidence must establish the truth of the &ct to a
reasonable and moral certainty ; a certainty that convinces and directs the
understanding, and satisfies the reason and judgment, of those who are
bound to act conscientiously upon it This we take to be proof beyond rea-
sonable doubt ; because if the law, which mostly depends upon considera-
tions of a moral nature, should go further than this, and require absolute cer-
tainty, it would exclude circumstantial evidence altogether." Common-
wealth V. Webster, 5 Cush. 320.
I 2 Hal. P. C. 298.
s Per Parke, B. in Rex v. Sterne, Surrey Sum. Ass. 1843, cited in Itest,
Prin. Evid. p. 100. The learned and acute reviewer of Dr. Webster's trial
thinks that reasonable ^oubt " may, perhaps, be better described by saying,
that all reasonable hesitation in the mind of the triers, respecting the truth ^
the hypothesb attempted to be sustained, must be removed by the proof. '
N. Amer. Rev. for Jan. 1851, p. 201. Reasonable certainty of the prisoner's
guilt, is described by Pollock, C. B., as being that degree of certainty, upon
which the Jurors would act in their own grave and important concerns. See
PABT v.] GENERAL PBINCIPIiES* 31
And this degree of conviction ought to be produced, when
the facts proved coincide with and are legally sufficient to
establish the truth of the hypothesis assumed, namely, the
guilt of the party accused, and are inconsistent with any
other hypothesis. For it is not enough that the evidence
goes to show his guilt; it must be inconsistent with the
reasonable supposition of his innocence. TtUius semper est
errare in acquietando^ gudm in puniendo; ex parte miseri-
cor dice, qudm ex parte justUice?^
Wills on Circumst. Eyid. p. 210 ; Begina v. Manning, 18 Jur. 962. If the
guilt of the prisoner is to be established hy a chain of ciicumstancesy and the
Jurors have a reasonable doubt in regard to anj one of them, that one ought
not to have any influence, in making up their yerdict Sumner v. The State,
5 Blackf. 579. In order to warrant a conyiction of crime, on circumstantial
eyidence, each fact, necessary to the conclusion sought to be established,
must be proyed by competent eyidence, beyond a reasonable doubt ; all the
facts must be consistent with each other, and with the main &ct sought to be
proyed ; and the circumstances, taken together, must be of a conclusiye na-
ture, and leading on the whole to a satisfactory conclusion, and producing in
effect a reasonable and moral certainty that the accused, and no other per-
son, committed the offence charged. Commonwealth v. Webster, 5 Gush.
296, 313,817-819.
I 2 Hale, P. C. 290; Sumner v. The State, 6 Blackf. 679. This senti-
ment of Lord Hale, as to the importance of extreme care in ascertaining the
truth of eyery criminal chai^, especially where life is inyolved, may be re-
garded as a rule of law. It is found in yarious places in the Mosaic code,
particularly in the law respecting idolatry ; which does not inflict the penalty
of death until the crime ^* be told thee," (yiz. in a formal accusation,) " and
thou has heard of it,** (upon legal trial^ *' and inquired cfi%en%, and behold
it be true^ (satisfactorily proyed,) " and the thing certain" (beyond all rea-
sonable doubt) Deut. xyii. 4. It was a law of Agesilaus, the Spartan king,
" ut mqualUms yotis, super yindicando facinore, in diyersa trahentibus, pro
reo judicium staret^ quod videbaiur cequissimum" The same rule was adopted
in Athens. Mascardus, De Probat Vol. 1, p. 87, concl. xxxyi. n. 3. The rule
of the Boman law was in the same spirit. Satius est, impunitum relinqui
facinus nocentis, quam innocentem damnare. Dig. lib. 48, tit 19, 1. 5. By
the same code, prosecutors were held to the strictest proof of the charge.
Sciant cuncti accusatores, eam se rem deferre in publicam notionem debere,
qusB munita sit idoneis testibus, yel instructa apertissimis documentis, yel
indiciis ad prohationem indubitatis et luce clariorihus expedita. Cod. lib. 4,
tit 19, 1. 25. The reason giyen by the civilians is one of public expediency.
In dubio, reum magis [est] absolyendum qnkm condemnandum ; quod abso-
32 LAW OF SYIBBKCB. [PABT Y.
§ 30. The proof of the charge, in criminal causes, involves
the proof of two distinct propositions ; first, that the act itself
was done; and, secondly, that it was done by the person
charged, and by none other ; — in other words, proof of the
carpus delicti^ and of the identUy of the prisoner. It is
seldom that either of these can 'be proved by direct testi-
mony, and therefore the fact may lawfully be established by
circumstantial evidence, provided it be satisfactory.^ Even
in the case of homicide, though ordinarily there ought to be
the testimony of persons who have seen and identified the
body, yet this is not indispensably necessary in cases where
the proof of the death is so strong and intense as to produce
the full assurance of moral certainty.^ But it must not be
forgotten that the books furnish deplorable cases of the con-
viction of innocent persons, from the want of sufficiently cer-
tain proofs either of the corpus delicti^ or of the identity of
the prisoner.^ It is obvious that on this point no precise rule
can be laid down, except that the evidence ^' ought to be
lutio est fayorabllis, condemnatio vero odiosa ; et fayores ampliandi sunt,
odia yero restringenda. Mascard. ubi sapra, n. 7-10. The rule in the
text, quoted from Lord Hale,, was familiarly known in the ancient common
law of England. The Mirror, written at a yery early period, reckons it
among the Abuses of the Common Law, " that justices and their officers,
who kill people by fidse judgment, be not destroyed as other murderers ;
which king Alfred caused to be done, who caused forty-four justices in one
year to be hanged for their fiUse judgment." And in the recital, which fol-
lows, of their names and offences, it is said that " he hanged Frebume, be-
cause he judged Harpin to die, whereas the jury were in doubt of their yer-
dict ; for in doubtful causes^ one ought rather to save tJian to condemn,'* Mir. -
p. 239, 240, ch. 5, sec. 1 ; Ab. 108, No. 15. See Best, Frin. Erid. p. 100,
101. In the spirit of the maxim in the text, it is enacted in Connecticut,
that ** No person shall be conyicted of any crime by law punishable with
death, without the testimony of at least two witnesses, or that which is equi-
yalent thereto." Rey. Stat 1849, tit 6, ^ 159.
1 See Mitteinuder, Traits de la Preuye en Matiere Criminelle, ch. 58,
p. 416.
3 Wills on Circumst Ey. p. 157, 162. An example of this is in Bex v.
Hindmarsh, 2 Leach, C. Gas. 571.
3 Mr. Wills mentions seyeral instances of this kind, in his interesting E»-
say on Circumstantial Eyidence, ch. iy, yiL See also Wharton's Am. Crim.
Law, p. 284, 285, (2d ed.)
PABT v.] GENERAL PRINCIPLES. 33
strong and cogent," ^ and that innocence should be presumed,
until the case is proved against the prisoner, in all its mate-
rial circumstances, beyond any reasonable doubt.
§ 31. The caution necessary to be observed on this point,
applies with more or less force in all criminal trials, but from
the nature of the case is more frequently and urgently de*
manded in prosecutions for homicide and for larceny. We
have heretofore* adverted to the possession of the instru-
ments or of the fruits of a crime as affording ground to pre-
sume the guilt of the possessor ; but on this subject no cer-
tain rule can be laid down, of universal application ; the pre-
sumption being not conclusive but disputable, and therefore
to be dealt with by the Jury alone, as a mere inference of fad;.
Its force and value will depend on several considerations. In
the first place, if the fact of possession stands alone, wholly
unconnected with any other circumstances^ its value or persua-
sive power is very slight; for the real criminal may have art-
fully placed the article in the possession or upon the premi-
ses of an innocent person, the better to conceal his own guilt ;
whether it be the instrument of homicide, burglary, or other
crime, or the fruits of robbery or larceny ; or it may have been
thrown away by the felon, in his flight, and found by the pos-
sessor, or have been taken away from him, in order to restore
it to the true owner ; or otherwise have come lawfully into
his possession.^ It will be necessary, therefore, for the prose-
cutor to add the proof of other circumstances, indicative of
guilt, in order to render the naked possession of the thing
available towards a conviction ; such as the previous denial
of the possession, by the party charged, or his refusal to give**
any explanation of the fact, or giving false or incredible ac-
counts of the manner of the acquisition; or that he has
attempted to dispose of it, or to destroy its marks ; or that he
has fled or absconded, or was possessed of other stolen pro-
1 Per Best, J. in Rex v. Boidett, 4 B. & Aid. 128.
3 See AntBy Vol. 1, $ 34.
3 Best on Fresomptions, ^ 224 - 226 ; Wills on Cir. Evid. ch. 3, sec. 4.
34 LAW OP BVIDBNOB. [PART V.
perty, or pick-lock keys or other instruments of crime ; or was
seen, or his foot-prints or clothes or other articles of his pro-
perty were found, near the place, and at or near the time when
the crime was committed ; or other circumstances, naturally
calculated to awaken suspicion against him and to corrobo-
rate the inference of guilty possession.^
§ 32. In the next place, in order to justify the inference of
guilt from the possession of the instruments or fruits of crime,
it is important that it be a recent possession, or so soon after
the commission of the crime as to be at first view not per-
fectly consistent with innocence. In the case of larceny, the
nature of the goods is material to be considered ; since if
they are such as pass readily from hand to hand, the posses-
sion, to authorize any suspicion of guilt, ought to be much
more recent than though they were of a kind that circulates
more slowly or is rarely transmitted. Thus, the possession
was held sufficiently recent to hold the prisoner to account
for it, where the property stolen consisted of two unfinished
ends of woollen doth, of about twenty yards each, found with
the prisoner two months after they were missed by the owner.*
But where the subject of larceny was an axe, a saw, and a
mattock, found in the possession of the prisoner three months
after they were missed, the learned Judge directed an acquit-
tal;^ and where a shovel, which had been stolen, was found
six months afterwards in the house of the prisoner, who was
not then at home, the learned Judge refused to put the pri-
soner upon his defence.^ An acquittal was also directed,
where sixteen months had elapsed since the loss of the goods.^
fiut in other cases, the airhole matter has properly been left at
I Wills on Cir. Evid. ch. 3, sec. 4 ; Alison's Crim. Law of Scotland, p. 320 -
322.
9 Rex v.Patridge, 7 C. & F. 551. And jee The State v. Bennett, 3 Bre-
vard, 514 ; Const B. 692 ; Cockin's case, 2 Lew. C. C. 235 ; The State v.
Jones, 3 Dev. & Bat 122.
3 Bex 17. Adams, 3 C. & F. 600 ; Hall's case, 1 Cox, C. C. 231.
^ Regina v. Cmttenden, 6 Jnr. 267.
5 Anon. 7 Monthly Law Mag. 58.
PART v.] GBNBaAL FBINOIPLBS. 85
large to the Jnry, it being tbeir proTince to consider what
weight, if any, ought to be given to the evidence ; ^ the gene-
eral principle being this ; that where a man, in whose posses-
sion stolen property is found, gives a reasonable account of
how he came by it, it is incumbent on the prosecutor to show
that the account is false,^
§ 33. But to raise the presumption of guilt from the pos-
session of the fruits or the instruments of crime by the pris-
oDer, it is necessary that they be found in his eocclusive pos-
sessioTL A constructive possession, like constructive notice
or knowledge, though sufficient to create a civU liability, is
not sufficient to hold the party responsible to a criminal
charge. He can only be required to account for the posses-
sion of things which he actually and knowingly possessed ; as,
for example, where they are found upon his person, or in his
private apartment, or in a place of which he kept the key.
If they are found upon premises owned or occupied as well
by others as himself, or in a place to which others have equal
facility and right of access, there seems no good reason why
he, rather than they, should be charged, upon this evidence
alone. If the prisoner is charged as a receiver of stolen gbods,
which he admits that he bought, and they are subsequently
found in his house, and are proved to have been stolen, this
evidence has been held sufficient to justify the Jury in con-
victing him, without proof his having actually received them,
or of his having been at the house from which they were
taken.^
§ 34. In regard to the suppression^ fabrication^ or destruction
of evidence^ the common law furnishes no conclusive rule.
I Bex V. Hewlett, 9 Russ. «n Grim. 728, note by Greaves. And see The
State V. Brewster, 7 Verm. B. 122 ; The State v. Weston, 9 Conn. R. 527;
The Commonwealth t7. Myers, Addis. 320.
' Begina v, Crowhorst, 1 C. & K. 370. It is sufficient for the prisoner to
raise a reasonable donbt of his guilt The State v. Merrick, 1 Applet. 398.
> Begina V. Matthews, 1 Den. C. C. B. 096 ; 14 Jur. 518.
36 LAW OF EVIDSKOB. [PAKT Y.
The presumption, as we have seen in a former volame,^ is in
such ^ases strong against the party ; for the motive of so do-
ing is generally a consciousness of guilt ; but the presump-
tion of guilt is not conclusive ; because innocent persons,
under the influence of terror from the danger of their situa-
tion, or induced by bad counsel, have sometimes been led to
the simulation or destruction of evidence, or to prevarication
and other misconduct, the usual concomitants of crime. But
the burden of proof in these cases is on the prisoner, to ex-
plain his conduct to the satisfaction of the Jury.^
§ 35. It may here be added, as a further preliminary con-
sideration, that by the Constitution of the United States, no
person shall ^^ be subject^ for the same offence^ to be twice put
in jeopardy of life or limbP ® A similar provision exists in
the constitutions of most of the States. But this rule has a
deeper foundation than mere positive enactment ; it beiryg, as
Mr. Justice Story remarked, imbedded in the very elements
of the common law, and uniformly construed to present an
insurmountable barrier to a second prosecution, where there
has been a verdict of acquittal or conviction, regularly had,
upon a sufficient indictment. It is upon the ground of this
universal maxim of the common law, that the pleas of autre-
fois acquit^ and of autrefois convict are aUowed in all criminal
cases.* If the former acquittal was for want of substance in
1 Antcy Vol. 1, ^ 87.
2 See, on this subject, Wills on Circumst. Ev. cb iii. ^ 7 ; Best on Pre-
sumptions, ^145-149. Mr. Best well suggests, tbat cases have probably
occurred, where the accused, though innocent, could not avail himself of his
real defence, without criminating others whom he is anxious not to injure, or
criminating himself with respect to other transactions. Ibid. ^ 149, note (a.)
3 Const. U. S. Amendm. Art. 5.
4 U. States V. Gibert, 2 Sumn. 42. And iee Yaux's case, 4 Rep. 44 ;
4 Bl. Comm. 335 ; 1 Russ. on Crimes, 837, note by Greaves ; Whart Am.
Grim. Law, 205, ei seq, 2d ed. ; 1- Chitty, Crim.Law, 452 ; Commonwealth v.
Cunningham, 13 Mass. 245 ; Commonwealth v. Goddard, Id. 455 ; Conunon-
wealth V. Roby, 12 Pick. 496, 502 ; The People v. Goodwin, 18 Johns. 187,
201. The rule in civil cases is the same, l^emo debet bis vexari, pro
PART v.] GENERAL PRINCIPLES. 37
setting forth the offence, or for want of jurisdiction in the
Court, so that for either of these causes no valid judgment
could have been rendered, it is no bar to a second prosecu-
tion ; but though there be error, yet if it be in the process
only, the acquittal of the party is nevertheless a good bar.
The sufficiency of the bar is tested by ascertaining, whether
he could legaUy have been convicted upon the previous indict-
ment; for if he could not, his life or liberty was not in jeo-
pardy.^
§ 36. The former judgment, in these cases, is pleaded with
an averment that the offence, charged in both indictments, is
the same ; and the identity of the offence j which may be shown
by parol evidence, is to be proved by the prisoner.* This
may generally be dpne by producing the record, and showing
that the same evidence, which is necessary to support the
secojid indictment, would have been admissible and suffi-
cient to procure a legal conviction upon the first^ A primd
facie case on this point being made out by the prisoner, it
will be ihcumbent on the prosecutor to meet it by proof that
the offence, charged in the second indictment, was not the
same as that charged in the first,^ It is not necessary that
ana et eadem causa. Broom's Maxims, 135. And see Ante, YoL 1, ^ 522 -
539.
1 Ibid. ; 2 Hawk. P. C. ch. 35, § 8 ; Id. ch.36, § 1, 10, 15 ; 2 Hale, P. C.
246 - 248 ; Commonwealth v. Goddard, supra ; W^art. Amer. Crim. Law,
190-204; The People v. Barrett, 1 Johns. 66; Bex r. Emden, 9 East,
437 ; Commonwealth v. Peters, 12 Met. 387 ; Regina v. Drory, 18 Law Jour-
nal, 189.
9 Duncan v. The Commonwealth, 6 Dana, 295. An approved form of
this plea is given at large in Rex v. Sheen, 2 C. & P. 634 ; and in Begina v.
Bird, 5 Cox, C. C. 11 ; 2 Eng. L. & Eq. Bep, 439.
3 Arehbold, Crim. PI. 87; Rex v. Emden, 9 East, 437 ; Bex v. Clark,
1 B. & Bing. 473 ; Bex v. Taylor, 3 B. & C. 502 ; 1 Buss, on Crim. ^32 ;
Commonwealth v, Boby, 12 Pick. 496 ; Bex v. Yandercomb, 2 Leach, Cr.
Cas. 816.
4 Begina v. Bird, 5 Cox, C. C. 11 ; 2 Eng. L. & Eq. Bep. 439.
VOL. III. 4
38 LAW OF EVIDBKCE. [PAET V.
the two charges should be precisely alike in form, or should
correspond in things which are not essential and not material
to be proved ; the variance, to be fatal to the plea, must be
in matter of substance. Thus, if one be indicted for murder,
committed on a certain day, and be acquitted, and afterwards
be indicted for the murder of the same person on a different
day ; the former acquittal may be pleaded and shown in bar,
notwithstanding the diversity of days ; for the day is not ma-
terial ; and the offence can be committed but once.^ But if one
be indicted of an offence againstthepeaceofthe2a^e king, and
acquitted, and afterwards be indicted of the same offence against
the peace of the now king ; the former acquittal cannot be
shown in bar of the second indictment ; for evidence of an
offence against the peace of one king, cannot be admitted in
proof of the like charge against the peace of another king.^
Thus, also, in regard to the person slain or injured, if he be
described by different names in the two indictments, and the
identity of the person be averred and proved, he being known
as well by the one name as the other, it is a good bar.^ So,
if one be indicted for murdering another by compelling him
to take, drink, and swallow down a certain poison called oil
of vitriol, whereof he is acquitted ; and he be agcdn indicted
for murdering the same person by administering to him the
oil of vitriol, and forcing him to take it into his mouth, so
that by the disorder, choking, suffocating, and strangling oc-
casioned thereby he languished and died ; the former acquit-
tal is a good bar ; for the substance of the charge in both
cases is poisoning.^ The same principle applies to all other
criminal charges, the rule being universal, that if the first
indictment were such that the prisoner could have been le-
gally convicted upon it, by any evidence legally admissible,
though sufEcient evidence was not in fact adduced, his
1 2Hale,P.C. 244.
9 Rex V. Taylor, 8 B. & C. 502 ; 2 Hawk. P. C. ck. 25, § 92.
3 Rex V. Sheen, 2 C. & P. 634 ; 2 Hale, P. C. 244.
4 Rex v. Clarke, 1 Brod. & Bing. 478 ; and see Ante^ Vol. 1, ^ 65.
PART v.] GENERAL PRINCIPLES. 39
acquittal upon that indictment is a bar to a second indict-
ment for the same oflFence.^ This rule also applies whprever
the first indictment was for a greater offence, and the second
is for a less offence, which was included in the greater. Thus,
if the first indictment, of which the prisoner was acquitted,
was for burglary and larceny, and he be afterwards indicted
for the larceny only ; or if he were indicted of any other com-
pound offence, such as robbery, murder, or the Uke, and ac-
quitted, and afterwards he be indicted of any less offence
which was included in the greater, such as larceny from the
person, manslaughter, or the like ; he may show the acquittal
upon the first indictment, in bar of the second ; for he might
have been convicted of the less ofience, upon the indictment
for the greater.^ But^if, upon the first indictment, he could
not have been convicted of the offence described in the second,
then an acquittal upon the former is no bar to the latter.
Thus, it has been held, that a conviction, upon an indictment
for an assault with intent to commit murder, is no bar to an
indictment for the murder ; for the offences are distinct in
their legal character, the former being a misdemeanor, and
the later a felony ; and in no case could the party, on trial for
the one, be convicted of the other.^
§ 37. The constUtUional' provision^ that no person shall be
subject, for the same offence, to be twice put in jeopardy of life
or limby has been variously interpreted, by different tribunals ;
1 Ibid. Bex v. Sheen, supra. And see The State v. Ray, 1 Ricei 1.
2 1 Buss, on Crim. 838, note ; 2 Hale, P. C. 346 ; 1 Chitt7, Crim. L. 455 ;
The State v. Standifer, 5 Port. 528; The People v, McGowan, 17 Wend.
886.
3 Ibid. This distinction is clearly stated and illustrated, upon principle
and authority, in The Commonwealth v. Roby, 12 Pick. 496. But in The
State r. Shepard, 7 Conn. 54, it was held, that a former conviction on an in-
dictment for an assault with intent to commit a rape, was a good bar to an
indictment for a rape ; for otherwise, the party might be punished twice for
a part of the facts charged in the second indictment In this case, the case
of The Commonwealth v. Cooper, 15 Mass. 187, was cited and relied on by
the Court ; but it has since been overruled, in 12 Pick. 507. Ideo guctre.
40 LAW OP EVIDENCE. [PART V.
for while some have held that it means nothing more than
the common-law maxim, that no man shall be tried twice for
the same ofience, others have held, that, whenever the Jury
are charged with the prisoner, upon a good indictment, he is
put in jeopardy ; and that he cannot be again put on trial,
unless the verdict was prevented by the act of God, such as
the sudden illness or death of a juror, or the illness of the pri-
soner, or by some other case of urgent and imperious neces-
sity, arising without the fault or neglect of the government
Whether the impossibility of agreement by the Jury, unless
by the physical coercion of famine or exhaustion, constitutes
such a case of urgent necessity, justifying the Court, in the
exercise of its discretion, to discharge the Jury, and hold the
prisoner for a second trial, is also a point on which there has
been much diversity of opinion ; but the affirmative, being"
held by the Supreme and Circuit Courts of the United States,
as well as by several of the State Courts, may be now re-
garded as the better opinion.^
§ 38. Though the general rule is thus strongly held, against
a second trial in criminal cases, yet it has also been held, that
to the plea of autrefois acquit^ or autrefois convict^ in prose-
cutions for misdemeanors, it is a sufficient answer that the
former acquittal or conviction was procured by the fraud or
1 United States v, Perez, 9 Wheat. 579 ; United States v. Coolidge, 2 Gall.
364; United States v. Gibert, 2 Sumner, 19, 52-62; United States v.
Shoemaker, 2 McLean, 114 ; United States v. Haskell, 4 Wash. 408 ; Com-
monwealth V, Bowden, 9 Mass. 494 ; Commonwealth v. Purchase, 2 Pick.
521; The People v. Olcott, 2 Johns. Cas. 301; The People v. Goodwin,
18 Johns. 187, 200-205; Commonwealth v. Olds, 5 Lit. 140; Moore i?. The
State, 1 Walk. 134; The State v. Hall, 4 Ualst. 256. See ace. Regina v.
Newton, 13 Jur. 606. See contra^ Conmionwealth v. Cook, 6 S. & R. 577 ;
Commonwealth v. Clue, 3 Eawle, 498 ; The State ». Garrigues, 1 Hayw.
241 ; Spier's case, 1 Dev. 491 ; Mahala r. The State, 10 Yerg. 532 ; The
State r. Ned, 7 Port. 188. See Wharton's Am. Crim. Law, p. 205-215,
where this subject is fully considered. Qucere, if, after the Jury have retired
to deliberate upon their verdict, one of them escapes, through the officer's
negligence, so that a verdict cannot be rendered, can the prisoner be again
tried?
PART y.] OENBRAL PRINCIPLES. 41
evil practice of the prisoner himself.^ It is not necessary to
the validity of these pleas, in any criminal case, that a judg-
ment should have been entered upon the verdict ; * but if the
judgment have been arrested, the plea cannot be supported.^
§ 39. In trials for felony, admissions offact^ which the go-
vernment is bound to prove, are not permitted, unless when
made at the trial, in open Court, by the prisoner or his coun-
sel. Thus, where, before the trial, which was for perjury, it
had been agreed by the attorneys on both sides, that the for-
mal proofs on the part of the prosecution should be dispensed
with, and that this part of the case for the prosecution should
be admitted, Ld. Abinger, C. B., refused to allow the admis-
sion, unless it were repeated in Court ; -and this being de-
clined, the prisoner was acquitted.^ But where, in a previous
case, upon a trial for counterfeiting, it was proposed, by the
counsel for the, prosecution, that the testimony just before
given on the trial of the same prisoner, on another indictment
for the same offence, should be admitted, without calling the
witnesses again ; and this was consented to by the prisoner's
counsel, Patteson, J., doubted whether^ it could be done in
cases of felony, though in cases of misdemeanor it might ;
and therefore he directed the witnesses to be called and re-
sworn, and then read over his own notes of their testimony,
to which they assented.^
We now proceed to consider the evidence appropriate to
distinct offences.
1 1 Chitty, Grim. Law, 657 ; Bex v. Bear, 1 Salk. 646 ; Rex r. Purser,
Sayer, 90 ; Rex v. DaTu, 1 Show. 336 ; Regina v. Coke, 12 Mod. 9 ; Anon.
1 Lev. 9 ; Bex v. Mawbey, 6 T. B. 619 ; The State v. Brown, 12 Conn. 54 ;
The State v. Little, 1 K. Hamp. 257; Commonwealth r. Kinney, 2 Virg.
Gas. 139.
9 The State v. Norvell, 2 Yerg. 24 ; Mount v. The State, 14 Ohio, B.
295.
3 CoiAmonwealth v. Purchase, 2 Pick. 526.
4 Begina v. ThomhiU, 8 C. & P. 575.
5 Bex V. Foster, 7 C. & P. 495.
4»
42 LAW OP BVIDBNCE. [PABT V.
ACCESSORY.
§ 40. Persons participating in a crime are either Principals
or. Accessories. If the crime is a felony, they are alike felons.
Principals are such either in the first or second degree. JVtn-
cipals in the first degree, are those who are the immediate
perpetrators of the act Principals in the second degree, are
those who did not with their own hands commit the act, but
were present, aiding and abetting it It is not necessary,
however, that this presence be strict, actual, and immediate,
so as to make the person an eye or ear witness of what passes ;
it may be a constructive presence. Thus, if, several persons
set out in concert, whether together or apart, upon a common
design which is unlawful, each taking the part assigned to
him, some to commit the fact, and others to watch at proper
distances to prevent a surprise, or to favor the escape of the im-
mediate actors ; here, if the fact be^committed, all are in the eye
of the law present and principals ; .the immediate perpetrators,
in the first degree, and the others in the second.^ But if the
design is only to commit a small and inconsiderable trespass,
such as robbing an orchard, or the like, and one of them, on
a sudden af&ay, without the knowledge of the others, com-
mits a felony, such, for example, as killing a pursuer, the
others are not guilty of this felony. So, where one beat a
constable, in the execution of his office, and after he had been
parted from him and had enturely desisted, a friend of the
party renewed the assault and killed the constable, the other
party was held innocent of the killing, he, having been not
1 Foster, Crown Law, 349, 860; 1 Russ. on Crim. p. 26, 27 ; 1 Hawk. P.
C. cb. 32, § 7 ; Burr's case, 4 Cranch, 492, 493 ; 1 Hale, P. C. 439; Com-
monwealth V, Bowen, 13 Mass. 359. And see, on the subject of Accesso-
ries, Wharton's Am. Crim. Law, ch. 3, (2d ed.)
PART v.] ACGBS60RY. 43
at all engaged after they were first separated. But if, iii the
former case, there had been a general resolution against all
opposers ; or, in the latter, a previous agreement to obstruct
the constable in the execution of his office, all would have
been silike guilty as principals.^ The principal in the second
degree must be in a situation in which he miffht render his
assistance, in some manner, to the commission of the offence ;
and this, by agreement with the chief perpetrator.^ But the
fact of conspiracy, is not alone sufficient to raise a presump-
tion that all the conspirators were constructively present at
the commission of the crime ; though it may be considered
by the jury as tending to prove their presence.^ If, however,
it is proved that the prisoner was one of the conspirators, and
was in a situation in which he might have given aid to the
perpetrator at the time of the act done, it will be presumed
that he was there for that purpose, unless he shows satisfac-
torily that he was there for another purpose, not connected
with the crime.* If the conspirators are alarmed and flee in
different directions, and one of them maim a pursuer, to
avoid being taken, the others are not to be considered as prin-
cipals in that maiming.^
§ 41. The presence alone of the party is not sufficient to
constitute him a principal in the second degree, unless he was
aiding' and abetting the perpetrator. This implies absent to
the crime ; and mere bodily presence, without any attempt
I Foster, 351, 352, 853; Regina v, Howell, 9 C. & P. 437; U. States v.
Ross, 1 Gall. 624.
8 Foster, 350 ; 1 Hawk. P. C. b. 2, ch. 29, § 8 ; Knapp's case, 9 Pick.
518.
3 Ibid.; Bex v, Bostwick, 1 Doug. 207; Harden's case, 2 Dev. & Bat.
407.
4 Enapp's case, 9 Pick. 519. The friends of duellists, who go out with
them, are present when the shot is fired, and return with them, though not
acting as seconds, are principals in the second degree. Begina v. Young,
8 C. & P. 644.
5 Rex V. White, Buss. & By. 99.
44 LAW OP BVIDBNCB. [PABT V.
to prevent the crime, though it will not of itself constitute
guilty participation, is^ evidence from which a Jury may infer
his consent and concurrence.^ And though constructive pre-
sence consists in this, that it encourages the principal actor
with the expectation of immediate aid, yet it is not necessary
to prove that the party charged as principal in the second
degree was actually present, at the place assigned, during the
whole transaction ; it being sufficient if he was there at the
consummation of the offence.^ Thus, if one counsel another
to commit suicide, and is present at the consummation of the
act, he is principal in the murder ; for it is the presumption
of law, that advice has the influence and effect intended
by the adviser, unless it is shown to have been otherwise, as,
for example, that it was received with scoff, or manifestly
rejected and ridiculed at the time it was given.^
§ 42. An cLccessory before the fact is he who, being absent
at the time of the felony committed, does yet procure, coun-
sel, or command another to commit a felony.^ Words,
amounting to a bare permission, will not alone constitute
this offence.^ Neither will mere concealment of the design
to commit a felony.^ It is not necessary to this degree of
crime, that the connexion between the accessory and the actor
be immediate ; for if one procures another to cause a felony
to be committed by some third person, and he does so, the
procurer is accessory before the fact, though he never saw
1 Foster, 350 ; 1 Hale, P. C. 438.
8 Rex V. Dyer, 2 East, P. C. 767 ; Rex v. Atwell, Id. 768. If he only as-
sists in disposing of the subject of the offence, after the crime is completed,
as, in further carrying away stolen goods, he is but an accessory after the
&ct. Rex v. King, R. & Ry. 832; Norton's case, 8 Cow. 137.
3 Commonwealth v. Bowen, IS Mass. 359 ; Rex v. Dyson, Russ. & Ry.
528; Regina v. Alison, 8 C. & P. 418.
4 1 Hale, P. C. 616.
6 Hawk. P. C. b. 2, ch. 29, § 16 ; Rex i;. Soares, Rus. & Ry. 76 ; ThePeo-
ple V. Norton, 8 Cowen, 137.
8 1 Hale, P. C. 874.
PABT v.] ACCB8S0BY. 45
or heard of the individual finally employed to commit the
crime.^
§ 43. There are no accessories before the fact in treason,
nor in crimes under the degree of felony, all persons con-
cerned in them being considered principals ; nor in man-
HaughUr, because the offence is considered in law sudden
and unpremeditated.^
§ 44. Where the principal acts under instructions from the
accessory, it is not necessary, in order to affect the latter, that
the instructions be proved to have been literally or precisely
followed ; it will be sufficient if it be shown that they have
been substantially complied with? Thus, if one instructs
another to commit a murder by poison, and he effects it with
a sword, the former is accessory to the murder, for that was
the principal thing to be done, and the substance of the instruc-
tion.* So, if the person employed goe3 beyond his instruc-
tions, in the circumstances of the transaction, as if the design
be to rob, and in doing this he kills the party, whether upon
resistance made, or for concealment of the rubbery ; or, if the
instructions be to burn the house of A., and the flames ex-
tend to the house of B., and burn that also ; the person coun-
selling and directing is accessory to the murder, in the former
case, and to the burning of the second house, in the latter ;
because the second crime was a probable consequence of the
first, and every sane man is presumed to foresee and assume
the probable consequences of his own acts.® So, if the par^
employed to commit a felony on one person, perpetrates it,
by mistake, upon another, the party counselling, is accessory
1 Foster, 125, 126; Macdaniel's case, 19 How. St Tr. 804 ; Earl of So-
merset's case, 2 Howell's St Tr. 965.
9 1 Hale, P. C. 613, 615 ; 4 Bl. Gomm. 35.
3 Ante, Vol. 1, ^ 65.
4 Foster, 369, 370.
& Foster, 370; 1 RusseU on Crimes, 35 ; Ante, Vol. 1, § 18 ; Supra, ^ 13,
14.
46 LAW OP BVIDBNCB. [PART V,
to the crime actually committed.^ But if the principal totally
and substantially departs from his instructions^ as if, being soli-
cited to burn a house, he moreover commits a robbery while
so doing, he stands single in the latter crime, and the other is
not held responsible for it as accessory.^
§ 45. If the accessory repents and countermands the order
before it is executed, and yet the principal persists and com-
mits the crime, the party is not chargeable as accessory. But
if, though repenting, he did not actually countermand the
principal before the fact was done, he is guilty .^
§ 46. By the common law, an accessory cannot be put upon
his separate trial, without his consent, until conviction of the
principal;^ for the legal guilt of the accessory depends on the
guilt of the principal ; and the guilt of the principal can only
be established in a prosecution against himself. But an ac-
cessory to a felony committed by several, some of whom
have been convicted, may be tried as accessory to a felony
committed by these last ; but if he is indicted and tried as
accessory to a felony committed by them all, and some of
them have not been proceeded against, it is error.^ If the
principal be dead, the accessory cannot, by the common law,
be tried at all.® The conviction of the principal is sufficient,
without any judgment, as primd facie evidence of his guilt,
to warrant the trial of the accessory ; but the latter may
1 1 Hale, P. C. 617; 1 Buss, on Crim. 86 ; Foster, 870, 871, 372.
9 1 Hale, P. C. 616, 617 ; Foster, 369.
3 1 Hale, P. C. 618.
4 1 Hale, P. C. 628 ; Phillips's case, 16 Mass. 423 ; 2 Burr's Trial, 440;
4 Crancb, App. 502, 503. By stat 7, Geo. 4, ch. 64, ^ 9, the accessory be-
fore the fact, is deemed guilty of a substantive felony, for which he may be
indicted and tried, whether ihe principal has or has not been previously con-
victed. Similar statutes have been passed in several of the United States.
s Stoops's case, 7 S. & R. 491.
0 Phillips's case, 16 Mass. 428. On a similar question, Hullock, B. doubted ;
but would not stop the case ; but the party being acquitted, the point was no
farther considered. Quinn's case, 1 Lewin, Cr. Gas. 1.
PABT v.] ACCBSSOBY. 47
rebut it by showing, clearly, that the principal ought not to
have been convicted.^ And it seems that in every case of
the trial of an accessory, he may controvert the guilt of the
principal.^ He may also require the production of the record
of his conviction, notwithstanding he has himself pleaded to
the indictment ; for the waiver of a right, in criminal cases,
is not to be presumed.^ If the principal is indicted for mur-
der, and another is indicted as accessory to that crime after
the fact ; and upon trial, the offence of the principal is re-
duced to manslaughter, the other may still be found guilty
of being accessory to the latter crime.*
§ 47. Accessories after the fact, by the common law, are
those who, knowing a felony to have been committed by
another, receive^ relieve^ comfort^ or assist the felon,^ If one
opposes. the apprehension of a felon, or voluntarily and inten-
tionally suffers him to escape, or rescues him, he becomes
an accessory after the fact^ So, if he receives or aids an
accessory before the fact, it is the same as if he received or
aided the principal felon.^ But the felony must have been
completed at the time, or the party is not an accessory after
the fact. Thus, if the aid is given after the infliction of a
mortal stroke, but before death ensues, he is not accessory to
the death.^ There must be evidence that the party charged
did some act personally, to assist the felon ; ^ but it is suffi-
1 Enapp's case, 10 Pick. 484; Williamaon's case, 2 Virg. Cas. 211 ; Fos-
ter, 864-368 ; Cook v. Field, 3 Esp. 184.
9 Foster, 867, 368; Macdaniel's case, 19 Howell, St Tr. 808; 1 Rnss. on
Crim. 89, 40.
3 Andrews's case, 3 Mass. 132, 133. And see Briggs's case, 5 Pick. 429.
4 Greenacre's case, 8 C. & P. 85.
A 1 Hale, P. C. 618, 622; 4 Bl. Comm. 37. So, if he employs another to
receive and assist the principal felon. Rex v. Jarvis, 2 M. & Rob. 40.
^ 1 Hale, P. C. 619 ; 2 Hawk. P. C. ch. 29, ^ 27 ; Rex v. Greenacre, 8 C.
& P. 35.
7 2 Hawk. P. C. ch. 29, ^ 1 ; 1 Hale, P. C. 622.
8 1 Hale, P. G. 622 ; 2 Hawk. P. C. ch. 29, ^ 85 ; 4 Bl. Comm. 88.
9 Regina v. Chappie, 9 C. & P. 355.
48 LAW OF EVIDBNCB. [PART V-
cient, if it appear that he did so by employing another person
to assist him.^
§ 48. Kfeme covert cannot be an accessory after the fact
for receiving her husband ; for it wfis her duty not to disco-
ver him.2 But it is generally said that the husband may be
an accessory after the fact, by the receipt of his wife.^ And
though this has been questioned, because the obligations of
husband and wife are reciprocal, the husband owing protec-
tion to the wife ;* yet it seems that it is still to be received
as the rule of law. If the wife receive stolen goods, or re-
ceive a felon, of her own separate act, and without the know-
ledge of the husband ; or if he, knowing thereof, abandon the
house, refusing to participate in the offence, she alone is
guilty as an accessory.^ And if she be guilty of procuring
the husband to commit a felony, this, it seems, will make her
an accessory before the fact, in the same manner as if she
were sole.^ So, also, the wife may sometimes commit the
principal felony, and the husband be accessory before the
fact ; as, if she utter forged documents, in his absence, but
by his direction.^
§ 49. In the indictment of an accessory before the facty it
does not seem necessary to state the manner of committing
the offence ; it is sufficient to charge generally, that he " felo-
niously abetted, incited, and procured " the principal to com-
1 Rex r. Jarvis, 2 M. & Rob. 40. The reason on which the common law
makes the party in these cases criminal, is, that the course of public justice
is hindered, and justice itself evaded, by facilitating the escape of the felon.
Therefore, to buy or receive stolen goods, knowing them to be stolen, does
not, at common law, make the party accessory to the theft, because he re-
ceives the goods only, and not the felon ; but he is guilty of a misdemeanor.
4 Bl. Comm. 38.
2 1 Hale, P. C. 621 ; 4 Bl. Comm. 38.
3 Ibid. ; 2 Hawk. P. C. ch. 29, § 34.
* 1 Deacon's Cr. L. 15.
5 1 Russell on Crimes, 21 ; 1 Hale, P. C. 621.
8 2 Hawk. P. C. ch. 29, ^ 34. See also 1 Hale, P. C. 516.
7 Rex V. Morris, Russ. & Ry. 270.
PARI v.] ACOBSSOBT. 49
mit it^ In the case of an accessary after the factj it is suffi-
cienty after stating the principal offence, to charge that he
did afterwards " feloniously receive, comfort, harbor and main-
tain ^ the principal offender.^ And in either case, if he is
1 2 Hawk. P. C. ch. 29, $17. « To cause," says Ld. Coke, " is to pro-
cure or counsel : To assent, is to give his assent or agreement afle>
wards to the procurement or counsel of another : To consent, is to agree at
the time of the procurement or counsel; and he in law is a procurer."
3 Inst 169.
« 1 Deacon's Cr. Law, 17 ; 2 Chitty, Cr. L. 6 ; Archb. Crim. PI. 820. In
the indictment of an accessory, whether before or after the fact, the charge
against the principal felon is first stated, with all the fbiTUidity necessary in
charging him alone ; after which the offence of the accessory is alleged. The
body of the iudictment at common law is usually after the following man-
ner:—
1. Against an accessory to a larceny before the fact.
The Jurors for the (State or Commonwealth) aforesaid, upon their oath
present, that (naming ike principal felon,) of , in the county of ,
on the day of , in the year , at , in said county of
, one silver cup, of the value of ' dollars, of the goods and chat-
tels of one (naming the oumer)y then and there in the possessdon of the said
(oicner) being found, feloniously did steal, take, and carry away, against the
peace of the (State or Commonwealth) aforesaid. And the jurors afore-
said, upon their oath aforesaid, do further present, that (naming the acces-
sory) of , in the county of , before the committing of the lar-
ceny aforesaid, to wit, on the — day of , in the year ,at ,
in the county aforesaid, did knowingly and feloniously incite, move, procure,
aid, abet, counsel, hire, and command the said (principal felon) to do and
conimit the said felony and larceny, in manner ^nd form aforesaid, against
the peace of the (State or Commonwealth) aforesaid.
The words ^ and against the form of the statute, (or statutes) in that case
made and provided," are necessary to be added only when the Indictment
is founded upon a statute ; otherwise, they are mere surplusage, in the case
of offences at common law. 2 Hale, P. C. 190 ; 1 Chitty, Crim. Law,
p. 289, (Perkins's ed.)
2. Against an accessory to any felony after the fact.
[The indictment is first finuned in the usual fonn against the principal
felon, after which it proceeds to chaige the accessory as fdlows.]
And the Jurors aforesaid, upon their oath aforesaid, do further present,
VOL. III. 5
50 LAW OF BVIDBNGE. [PABT V.
indicted as accessory to two or more, and is found guilty of
being accessory to one only, the conviction is good.^ If, be-
ing indicted as accessory before the fact^ the proof is that he
was present,! aiding and abetting, he cannot be convicted
of the charge in the indictment ; for the proof is of a different
crime, namely, of the principal felony.^ But if two are in-
dicted together, one being charged with larceny, and the otha*
with the substantive felony of receiving the same goods, the
latter may be convicted, though the former is acquitted.*
And if two are indicted together, the one of murder, and the
other as accessory after the fact, and the former be convicted
of manslaughter only, the latter may also be convicted as
accessory to the latter offence.*
§ 50. In proof of the offence of being accessory before the
that [naming the accessory,] of , in the county of , well know-
ing the said (principal felon,) to have done and committed the felony and
(murder, or robbery, S^c, as the case may he,) aforesaid, in manner and form
aforesaid, afterwards, to wit, on the day of , in the year ,
at , in the county aforesaid, him the said (principal felon) did then
and there knowingly and feloniously receive, harbor, conceal, and maintain,
in the felony and (murder, &c.) aforesaid, against the peace of the (State or
Commonwealth) aforesaid.
8. Against joint accessories to a murder, before the fact
[After alleging the murder, in the usual form, against the principal, the
indictm^t proceeds thus : — ]
And the Jurors (&c.) do further present, that J. K., of , &c. and
G. C. of ,. &c., before the said felony and murder was committed, in
manner and form aforesaid, to wit, on , at , were accessory
thereto before the fact, and feloniously, wilfully, and of their malice afore-
thought, did counsel, hire, and procure the said (naming the principal fehn)
the felony and murder aforesaid, in manner and form aforesaid, to do and
commit, against the peace of the (State or Commonwealth) aforesaid. See
Commonwealth t;. Enapp, 9 Pick. 496 ; 10 Pick. 477.
^ Ld. Sanchar's case, 9 Co. 119 ; 1 Hale, P. C. 624.
a Eex V, Winifred Gordon & al., 2 Leach, Cr. Cas. 681 ; 1 East, P. C.
352 ; 1 Russ. on Crim. 30, 31.
3 Regina v. Pulham, 9 C. & P. 280. This, it is supposed, can arise only
where, by statute, the offence of receiving is made a substantive felony.
4 Per Tindal, C. J., in Rex v. Greenacre, 8 C. & P. 85.
PABT v.] AOOBSBOBT. 51
faciei it is necessary to show that the prisoner instigated and
incited the principal to commit the crime. With respect to
the degree of incitement, and the force of the persuasion used,
no rule seems to have been laid down. If it was of a nature
tending to induce the commission of the crime, and was so
intended, it will be presumed to have led to that result, if the
crime is proved. It does not seem necessary to prove, sub-
stantially, that the persuasion employed actually produced
any effect, in order to maintain the indictment ; nor is it a
good defence, that the crime would have been committed had
no persuasion or incitement been employed.^ The cases
where one crime was advised, and another was perpetrated
upon that advice, are all governed by one and the same prin-
ciple. If the crime, committed by the principal felon, was
committed under the influence of the flagitious advice of the
other party, and the event, though possibly falling out beyond
the original intention of the latter, was, nevertheless, in the
ordinary course of things a probable consequence of that fe-
lony, he is guilty of being accessory to the crime actually
committed. But if the principal, following the suggestions of
his own heart, wilfully and knowingly committed a felony of
another kind, on a different subject, he alone is guilty.^
1 2 Staik. £y. 8. And see Commonwealth v. Bowen, 19 Mass. 859.
3 Foster, 370, 871, 872.
62 LAW OF KYIDBNCB. [PART V.
ARSON.
§ 51. The indictment^ at common law, for this crime,
charges that the prisoner, " with^orce and arms, at, &c., felo-
niously, wilfully, and maliciously did set fire to and burn a
certain dwelling-house ^ of one J. S., there situate," &c. To
support the indictment, therefore, four things must be proved ;
namely, first, that the offence was committed upon a dwel-
ling-house;* secondly, that it was the house of the person
named as the owner ;3 thirdly, that it was burnt; and,
fourthly, that this was done with a felonious intent.
§ 52. The term, dwelling-house^ in the common law, com-
prehends not only the very mansion-house, but all out-houses
which are parcel thereof, though not contiguous to it, nor
under the same roof, such as the barn, stable, cow-house,
^ It is not necessary to allege it to be a dweUingAiOMa/Q ; the word " house "
alone is sufficient 8 Inst 67 ; 1 Hale, P. C. 567 ; Commonwealth v. Posej,
4 Call, 109 ; 2 East, P. C. 1083.
s The burning of other property, of various descriptions, is made punisha-
ble by statutes of the different American States, the consideration of which
does not fall within the plan of this Treatise.
3 See supra, $10; Commonwealth v. Wade, 17 Pick. 895. The charge
for this offence, at conunon law, is in the following form : —
The Jurors, &c. on their oath present, that A. B., of, &c. at, &c. on, &c.
the dwelling-house of one C. D., there situate, feloniously, wilfully, and mali-
ciously did set fire to, and the same house then and there, by such firing as
aforesaid, feloniously, wilfully, and maliciously did bum and consume, against
the peace of the (State or Commonwealth) aforesaid.
The words toUfuUy (or voluntarily) and maliciously, as well as feloniously,
are indispensable in charging tins crime. 2 East, P. C. 1038 ; 1 Ilawk. P.
C. ch. 89, ^ 5; Bex v. Header, 4 C. & P. 245.
PASS v.] ABSOK. 58
sheep-bouse, dairy-house, mill-house, and the like ; ^ so that
if the evidencer be of the burning of one of these, the averment
is proved. But if the barn be no part of the mansion-house,
the burning is said not to be felony, unless it have corn or
hay in it.^ If the out-house be within the same curtilage or
common fence, it is taken to be parcel of the mansion-house ;
but no distant barn or other building is under the same pri-
vilege ; nor is any out-house, however near, and though it be
occupied by the owner of the mansion-house^ if it be not par-
cel of the messuage, and so found to be.^ No common in-
closure is necessary, if the building be adjoining the mansion-
house, and occupied as parcel thereof.^
§ 53. The burning of one^s own liouse^ the owner being also
the occupant, does not amount to this crime ; though it is a
great misdemeanor, if it be so near other houses as to create
danger to them.^ But if the house be insured, and the owner
purposely set it on fire with intent to defraud the under-
writers, and thereby the adjoining house of another person be
burnt, the burning of this latter house will be deemed feloni-
ous,^
54. § As to the ownership of the house, it must be laid and
proved to be the house of some other person than the prisoner
himself; but it is not necessary that the reversionary interest
1 3 Inst. 67 ; 1 Hale, P. C. 667 ; 4 Bl. Comm. 221 ; 2 East, P. C. 1020 ;
2 Buss, on Crim. 548.
9 Ibid.; 4 Com. Dig. 471, tit. Justices, P. 1.
3 Ibid. ; 2 East, P. C. 493, 1020 ; The State r. Stewart, 6 Conn. 47 ; Rex
V, Haughton, 5 C. & P. 555.
4 2 East, ]?. C. 493, 494. A common goal is a dwelling-house, if the keep-
er's house adjoLQ it, and the entrance to the prison is through the house of
the keeper; and it may be averred to be the house of the county or corpora-
tion to which it belongs. Donevan's case, 2 W. Bl. 682 ; 2 East, P. C. 1020 ;
1 Leach, Cr. L. 81 ; The People v, Cotteral, 18 Johns. 116.
5 1 Hale, P. C. 567, 568; 4 Bl. Comm. 221; 2 East, P. C. 1027, 1030;
1 Deacon, Crim. L. 56 ; Bloss v. Tobey, 2 Pick. 325.
» Probert's case, 2 East, P. C. 1030, 1031.
5»
54 LAW OF EVIDENCE. [PART V.
be in the occupant ; it is the right of present possession, suo
jurCj at the time of the offence, which constitutes the owner-
ship required by the common law.^ Therefore this crime
may be committed by one entitled to dower in the house,
which has not been assigned ; ^ or, by the reversioner, who ma-
liciously burns the house in the possession of his tenant.^ On
the other hand, if the lessee, or the mortgagor burns the house
in his own possession, it is not arson.^ But where a parish
pauper maliciously burned the house in whioh he had been
placed rent-free by the overseers of the poor, who were the
lessees, he was adjudged guilty of arson ; for he had no in-
terest in the house, but was merely a servant, by whom the
overseers had the possession.^
§ 55. There must also be proof of an acttuU burning of the
house. It is not necessary that the entire building be de-
stroyed ; it is sufficient that fire be set to it, and that some
part of it, however small, be decomposed by the fire, though
the fire be extinguished or go out of itself. But an attempt
to set fire to the house, by putting fire into it, if it do not
take, and no part of the house be burned, though the com-
bustibles themselves are consumed, is not arson, at the com-
mon law.^
1 2 East, P. C. 1022, 1025 ; 2 Russ. on Crimes, 664, 565 ; The People t;.
Van Blarcnm, 2 Johns. 105.
9 Rex V. Harris, Foster, 118 - 115.
3 Ibid.; 2 East, P. C. 1024, 1026.
4 Rex V. Holmes, Cro. Car. 876 ; W. Jones, 351 ; Rexv.Pedley, 1 Leach,
Cr. L. 242 ; Rex v, Scholfield, Cald. 397 ; 2 East, P. C. 1023, 1025 - 1028 ;
2 Russ. on Crimes, 650, 651.
5 Rex V, Gowen, 2 East, P. C. 1027 ; Rex v. Rickman, Id. 1084.
6 8 Inst 66 ; 4 Bl. Comm. 222 ; 1 Hale, P. C. 668 ; 2 East, P. C. 1020 ;
Rex V. Taylor, 1 Leach, Cr. L. 68 ; Commonwealth r. Van Schaack, 16 Mass.
106; The People v. Butler, 16 Johns. 203; 1 Hawk. P. C. c. 39, § 17.
Where the witness testified that ** the floor near the hearth had been scorched ;
it was chaired in a trifling way ; it had been at a red heat, but not in a
blaze " ; this was thought, by Parke, B., to be sufficient proof of arson. But
the witness, on further examination, haying stated that he had not examined
the floor, to ascertain how deeply the charring went in, neither could he at all
PART v.] AB80K. 55
§ 56. There must also be proof of a felonious irUent. This
allegation is not sapported by any evidence of mere negli-
gence or mischance ; ^ nor by proof of an intent to do some
other unlawful act, without malice, such as if one, in shoot-
ing with a gun, in violation of the game laws, or in shooting
at the poultry of another, should happen to set fire to the
thatch of the house,^ or the like. But if he intended to steal
the poultry, the intent being felonious, he is liable criminaUy
for all the consequences.^ Itis not necessary, however, that the
burning should correspond with the precise intent of the party ;
for if, intending to burn the house of A., the fire should, even
against his will, burn the house of B. and not that of A., it is
felony.^ It is a general rule of penal law, that where a felo-
nious design*against one man misses its aim, and takes effect
upon another, it shall have the like construction as if it had
been directed against him who suffers by it.^ Therefore it
has been said, that if one command another to burn the
bouse of A., and by mistake or accident the servant burns
the house of B., the principal is guilty of felony for this latter
burning.^ And if one, by wilfully setting fire to his own
house, burn the house of his neighbor, which was so near that
the burning of it would be the natural and probable conse-
quence of burning his own house, it is felony.^
form a judgment as to how long it had been done, the Court, (per Bosan-
quet, J.) told the Jury that this evidence was much too slight, and that they
ought to acquit. Regina v. Parker, 9 C. & P. 45. And see The State v.
Sandy, 8 Ired. 5 70. Where fire was placed in a roof composed of wood and
straw, producing smoke and burnt ashes in the straw, this was held a setting
on fire, though there was no appearance of fire itself. Rex v. Stallion, 1 Ry.
& M. 898.
^ 3 Inst 67 ; 4 Bl. Comm. 222.
9 1 Hale, P. C. 569. And see The State v. Mitchell, 5 Ired. 850.
3 2 East, P. C. 1019; 2Ru9s. on Crimes, 549.
4 Ibid. ; 1 Hawk. P. C.ch. 89, § 19.
5 See supra, ^17, 18.
« Lamb. Eirenar. b. 2, ch. 7, fol. 282 ; Plowd. 475 ; 2 East, P. C. 1019.
7 2 East, P. C. 1081 ; Rex v. Isaac, Ibid.; Rex v. Probert, Id. 1030, per
Grose, J.
56 LAW OF EVIDENGE. [PA&T Y.
§ 56. The evidence of ownership mast conespond with the
allegation in the indictment, or it will be fatal.^ If the in-
dictment charges the burning of an out'house^ it is proved by
evidence of the burning of such a building, though for some
purposes it were part of the dwelling-house.^ If the offence
be laid to have been done in the night time^ this allegation
needs not be proved, if the indictment is at common law ; for
it is not material, unless made so by statute.^ Actual participiif
tion in the crime may be shown by the guilty possession of
goods, proved to have been in the house at the time of the act
done, even though such possession may amount to another
felony.*
I Rex V. Rickman, 2 East, P. C. 1034 ; Rex v. Pedley, Id, 1026; The
People V. Stater, 5 Hill, N. Y. Rep. 401 ; Commonwealth v. Wade, 17 Pick.
395 ; Supra, § 10 ; ^nte. Vol. 1, ^ 65.
8 Rex V, North, 2 East, P. C. 1021, 1022.
3 Rex V. Minton, 2 East, P. C. 1021.
4 Rex V, Itiekman, 2 East, P. C. 1034 ; Supra, ^ 31, 32, 33.
PABT v.] ASSAULT, 57
ASSAULT.
§ 58. The indictment for a cammon assault charges that
the offender, at such a time and place, " with force and arms,
in and upon one C. D., in the peace of this (State or Com-
monwealth,) then and there being, an assault did make, and
him the said C. D. then and there did beat, wound, and ill-
treat, and other wrongs to the said C. D. then and there did,
against the peace," &c. If there are circumstances of aggra-
vation, not amounting to a distinct offence, they are alleged
before the alia enormia,
§ 59. An assault is defined, by writers on criminal law, to
be an intentional attempt, by force, to do an injury to the per-
son of another.^ This allegation, therefore, is proved by evi-
dence of striking at another, with or without a weapon, and
whether the aim be missed or not ; or of drawing a sword
upon him ; or of throwing any missile at him ; or of present-
ing a gun or pistol at him ; the person assaulted being within
probable reach of the weapon or missile.^ So, if one rushes
upon another or pursues him with intent to strike, and in a
threatening attitude, but is stopped immediately before he
was within reach of the person aimed at, it is an assault.^
Whether it be an assault, to present a gun or pistol, not
loaded, but doing it in a manner to terrify the person aimed
1 Wliart Am. Crim. L. p. 460 ; I Russ. on Grim. 750. And See ante,
Vol. 2, § 82.
9 1 Russ. on Crim. 750 ; 1 Ha^vk. P. C. cb. 62, § 1 ; U. States t?. Hand,
2 Wash. C. C. Rep. 435.
3 Stephen v. Myers, 4 C. & P. 349. So, if the distance be such as to put
a man of ordinary firmness under the apprehennon of a blow. The State v.
Davis, 1 Ired. 125. See further, ante, Vol. 2, § 82, 84.
68 LAW OP EVIDENCE. [PAET. V.
at, is a point upon which learned judges have differed in
opinion.^ So, an assault is proved, by evidence of indecent
liberties taken with a female, if it be without her consent ;
and such consent a child under ten years of age is incapable
of giving ; ^ but above that age she may be capable.^ So, if
possession of a married woman's person is indecently and
fraudulently obtained in the night, by one falsely assuming to
be her husband, it is an assault ; and her submission, under
such mistake, is no evidence of consent.^ It is the same, if a
medical man indecently remove the garments from the per-
son of a female patient, under the false and fraudulent pre-
tence that he cannot otherwise judge of the cause of her ill-
ness.^ So, if a school-master take indecent liberties with the
pers6n of a female scholar, without her consent, though she
do not resist, it is an assault.^ So, to cut off the hair of a
pauper in an almshouse, against her consent, though under a
rule of the house, is an assault ; the rule being illegal ; and if
it be done with intent to degrade her, and not for the sake of
personal cleanliness, it is an aggravation of the offenceJ Ev-
idence that the party knowingly put into another's food a
1 In Begina v. St George, 9 C. & P. 483, Parke, B. held it to be an as-
sault So it was held In The State v. Smith, 2 Homph. 457. And see
8 Sm. & Marsh. 653 ; The State v. Benedict, 11 Verm. 286. But see, con-
tray Blake v. Barnard, 9 C. & P. 626. See also, Regina v. Baker, 1 C. & E.
254 ; Regina v. James, Id. 530, which, however, were cases upon the statute
of 1 Vict. c. 85, ^ 3.
9 Regina v. Banks, 8 C. & P. 574 ; Regina t;. Day, 9 C. & P. 722. There
b a difference between consent and submission ; every consent involyes sub-
mission ; but it by no means foUowsthat a mere submission involves consent
It would be too much to say that an adult, submitting quietly to an outrage
of this description, was not consenting; on the other hand, the mere submis-
sion of a child, when in the power of a strong man, and most probably acted
upon bf fear, can by no means be taken to be such a consent as will justify
the prisoner in point of law. Ibid, per Coleridge, J.
8 Regina v. Meredith, 8 C. & P. 589 ; Regina v. Martin, 9 C. & P. 213.
^ Regina v. Saunders, 8 C. & P. 265 ; Regina v, Williams, Id. 286 ; Rex
V. Jackson, R. & Ry. 487.
5 Rex V. Rosinski, 1 Mood. C. C. 12; 1 Russ. on Grim. 606.
• Rex ». Nichol, Rus. & Ry. C. C. 130 ; Regina v. Day, 9 C. & P. 722.
7 Forde v. Skinner, 4 C. & P. 239.
PABTY.] ASSAULT. 59
deleterious drag, to cause him to take it, and it be taken, is
sufficient to support the charge of an assault^
^ 60. A battery is committed whenever the violence me-
naced in an assault, is actually done, though in ever so small a
degree, upon the person. Every battery, therefore, includes
an assault, though an assault does not necessarily imply a
battery. But in treating of this offence, no further notice
needs be taken of this distinction, as its effect, ordinarily, is
only upon the degree of punishment 'to be inflicted.
§ 61. It is to be observed, that although an ttnijUeniianal
injury^ done with force to the person of another, may support
a civil ckcUon of trespass for damages;^ yet to constitute the
criminal offence of an assault, the intention to do injury is es-
sential to be proved. If, therefore, though the attitude be
threatening, it is so explained by the simultaneous language
as to negative any present intention to do harm, as for exam-
ple, that " he would strike, if it were not assize-time," * or,
^ if he Vere not an old man," ^ or the like, it is not an assault
Though it is difficult in practice to draw the precise line
which separates violence menaced from violence actually com-
menced, yet the rule seems to be this, that where the purpose
of violence is accompanied by an act which, if not prevented,
would cause personal injury, the violence is begun, and of
course the offence is committed.^ And it seems not to be
necessary that the violence should be menaced absolutely ;
it may be conditionally threatened ; for if one raise a weapon
against another, within striking distance, threatening to
strike unless the other performs a certain act, which he there-
1 Begina o. Batton, 8 C. & P. 660.
9 See ante, Vol 2, § 94.
' Anon. ; 1 Mod. 8 ; Tarbeville v. Savage, 2 Keb. 545.
4 Commonwealth v. Eyre, 1 S. & R. 847 ; The State v. Crow, 1 Ired 875.
And see Ante, Vol. 2, § 88.
5 The State v. Davis, 1 Ired. 128.
60 ^ LAW 07 EVIDENCE. [PABT V.
upon performs, and bo the violence purposed is not actually
inflicted ; it is nevertheless an assault.^
§ 62. The intention to do harm is negatived by evidence that
the injury was the result o{ mere accident ; as, if one soldier
hurts another by the discharge of his musket in military exer-
cise ;^ or, if one's horse, being rendered ungovernable by sud-
den fright, runs against a man ; ' or, if a thing which one is
handling in the course of his employment be carried by the
force of the wind agains't another man, to his hurt.^ But in
these cases, as we have heretofore shown in civil actions, it
must appear that the act in which the defendant was engaged
was lawful, and the necessity or accident inevitable and with-
out his fault.^ If the act were done by consent^ in a lawful ath'
letic sport or game j not dangerous in its tendency, it is not an
assault ; but if it were done in an unlawjul sporty as a boxing
match, or prize-fight, it is otherwise.^
§ 63. The criminality of this charge may also be disproved
by evidence showing that the act was lawful; as, if a parent
in a reasonable manner corrects his child; or, a master his
apprentice ; or, a schoolmaster his scholar ; or if one, having
the care of an imbecile or insane person, confines him by force;
or, if any one restrains a madman ; in these, and the like cases,
it is not a criminal assault^ So, if a shipmaster corrects a
seaman for negligence or misconduct in any matter relating
to his duty as one of the ship's crew, or tending directly to
1 The State v. Morgan, Sired. 186.
9 Weaver r. Ward, Hob. 134.
3 Gibbons v. Pepper, 4 Mod. 405.
4 Rext;. Gill, 1 Stra. 190.
5 Dickenson v. Wataon, T. Jones, 205 ; 1 Russ. on Crim. 764. See ante.
Vol. 3, ^ 85, 94, and cases there cited.
« See arUe^ Vol. 2, ( 85, and cases there cited; 1 Russ. on Crim. 768.
7 Hawk. P. C. b. 1, ch. 30, sec. 23. And see ante, Vol. 2, § 97 ; 1 Russ.
on Crim. 755.
PABT v.] ASSAULT. '61
the sabversion of the discipline and police of the ship.^ But
in all these cases, the correction or restraint must be reason-
able, and not disproportionate to the requirements of the case,
at the time.
§ 64. The act may also be justified by evidence that it was
done in ztlf defence. There is no doubt that any man may
protect his person from assault and injury, by opposing force
. to force ; nor is he obliged to wait until he is struck ; for if a
weapon be lifted in order to strike, or the danger of any other
personal violence be imminent, the party in such imminent
danger may protect himself by striking the first blow and dis-
abling the assailant.^ But here, also, the opposing force or
measure of defence must not be unreasonably disproportion-
ate to the exigency of the case ; for it is not every assault,
that will justify every battery. Therefore, if A. strikes B.,
this will not justify B. in drawing his sword and cutting off
A.'s hand.^ But where, upon an assault by A., a scuffle en-
sued, in the midst and heat of which A.'s finger was bitten
off by B., the latter was held justified.* If the violence used
is greater than was necessary to repel the assault, the party
is himself guilty.^
1 Tumer^s case, 1 Ware, 88 ; Bangs v. Little, Id. 506 ; Hannen v. Edes,
15 Mass. 847; Sampson v. Smith, Id. 865.
9 Bull N. P. 18; Weaver v. Busli, 8 T. R. 78 ; Anon. 3 Lewin,C.C.48 ;
1 Boss. on Crim. 756 ; The State v. Briggs, Sired. 857.
3 Cook V. Beal, 1 Ld. Baym. 177 ; Bull N. P. 18.
4 Cockcroft V. Smith, 1 Ld. Baym. 177, per Hdt, C. J.; 11 Mod. 48;
S Salk. 642, S. C, cited and expounded by Sayage, C. J., in Elliott v. Brown,
2 Wend. 499.
& Regina v. Mabel, 9 C. & P. 474. And see Bex v. Whalley, 7 C. & P.
245. The law on this point was thus stated by Coleridge, J. — " If one man
strikes another a blow, that other has a right to defend himself, and to strike
a blow in his defence ; but he has no right to reyenge himself; and if, when
all the danger is past, he strikes a blow not necessary for his defence, he com-
mits an assault and a battery. It is a common error to suppose that one
person has a right to strike another who has struck him, in order to reyenge
himself." Begina v. Driscoll, 1 Car. & Marshm. 214. See also, the State v.
Wood, 1 Bay, 351 ; Hannen v. Edes, 15 Mass. 947 ; Sampson v. Smith, Id.
VOL. m. 6
62 ' LAW 07 EYIDSNCS. [PABX Y*
§ 65. In justification of aa assault and battery, it is also
competent for the defendant to prove that it was done to pre-
vent a breach of the peace, suppress a riot, or prevent the
commission of a felony ; ^ to defend the possession of one's
house, lands, or goods ;^ to execute process;^ or, to defend
the person of one's wife, husband, parent, child, master, or
servants But in all these cases, as we have seen in others,
no more force is to be used than is necessary to prevent the
violence impending; nor is any force to be applied in defence
of the possession of property, until the trespasser has been
warned to desist, or requested to depart, except in cases of
violent entry or taking by a trespasser, or the like ;^ for oth-
erwise, the party interfering to prevent wrong will himself be
guilty of an assault
365; The State v. Lazaras, 1 Bep. Const C. 34; The State v, Qnin,
2 Const Rep. 694 ; 3 Brev. 515, S. C.
1 1 Hawk. P. C. ch. 60, sec. 23 ; 1 Ruas. on Crim. 756 -757; Bull. N. P. 1 8.
« Ibid.; Green v, Goddard, 2 Salk. 641 ; Weaver v. Buah, 8 T. R. 78 ;
Simpson v. Morris, 4 Taunt 821. And see ante^ Vol. 3, § 98 ; 2 Boll. Abr.
548, 549.
3 2 Roll. Abr. 546 ; 1 Buss, on Crim. 757 ; Harrison v, Hodgson, 10 B.&
C. 445.
4 3 Bl. Comm. 3 ; 1 Buss, on Crim. 756 ; 1 Hawk. P. C. supra. It has
sometimes been held that a master could not justify an assault in defence of
his servant ; because, having an interest in his service, he might have his
remedy by a civil action. But it was otherwise held, at a very eariy period^
19 H. 6, 31 b. 2 BolL Abr. 546 ; and it seems now the better opinion, that
the obligation of protection and defence is mutual, between master and ser-
vant 1 Buss, on Crim. supra^ cites Tickell v. Bead, Lofi^ 215.
5 1 Buss, on Crim. 757 ; Ante^ Vol. 2, $ 98 ; Mead's case, 1 Lewin, 185;
Tullay V. Beed, 1 C. & P. 6 ; Commonwealth v. Clark, 2 Met 23 ; Imason v.
Cope, 5 C. & P. 193.
PART v.] BABRATRY. 63
BARRATRY.
§ 66. A BARRATOR is R common mover, exciter, or maintainer
of suits or quarrels, in court or in the country. The indict-
ment charges the accused, in general terms, with being a com-
mon barrator, without specifying any particular facts or in-
stances ; but the Court will not suffer the trial to proceed, un-
less the prosecutor has seasonably, if requested, given the
accused a note of the particular acts of barratry intended to
be proved against him ; ^ and to these alone the proof must
be confined.^
§ 67. This offence is proved by evidence of the moving,
exciting, and prosecuting of suits in which the party has no
interest, or of false suits of his own, if designed to oppress
the defendants ; or, of the spreading of false rumors and ca-
lumnies, whereby discord and disquiet are spread among neigh-
bors.^ But proof of the commission of three such acts, at least,
^ Bex r. Wylie, 1 New Bep. 95, per HeatJi, J. ; Commonwealth v. Davis,
11 Pick. 432.
> Goddaid v. Smith, 6 Mod. 262 ; 1 Ross, on Grim. 184. The indictment
for this offence is as follows : —
Tbe JoTors, (&c.) npon their oath present, That , of , in the
coimtj of , on , and on divers other days and times, as well
before as afterwards, was, and yet is, a common barrator, and that he the
said , on the said day of , and on divers other days and
times, as well before as afterwards, at aforesaid, in the county afore-
said, divers quarrels, strifes, suits, and controversies, among the honest and
quiet citizens of said (State,) then and there did move, procure, stir up, and
excite, against the peace of the (State) aforesaid.
The words '' common barrator " are indispensably necessary to be used in
an indictment for this crime. 2 Saund. 308, n. (1) ; Bex v, Hardwicke,
1 Sid. 282; Reg. v. Hannon, 6 Mod. 311 ; 2 Chitty, Cnm. L. 232.
3 1 Inst 368, a. ; 1 Hawk. P. C. ch. 81. For a copious description of this
offence, see The Case of Barrators, 8 Bep. 36.
64 LAW OV SVIDSNCB. [PABT Y.
IB neoessary, to maintain the indictment^ The bringing of an
action in the name of a fictitious plaintifi^ is a misdemeanor ; *
but it does not amount to barratry, unless it be thrice repeated.
1 Commonwealth r. Davis, 11 Pick. 4S2, 435.
9 4 BL Comm. 134 ; 1 fion. on Crim. 185.
PABT v.] BIiA8PHBMT. 65
BLASPHEMY.
§ 68. This crime, in a general sense, has been said to con-
sist in speaking evil of the Deity, with an impious purpose to
derogate from the divine majesty, and to edienate the minds of
others from the love and reverence of God.^ Its mischief con-
sists in weakening the sanctions and destroying the founda-
tions of the Christian religioui which is part of the. common
law of the land, and thus weakening the obligations of oaths
and the bonds of society. Hence, all contumelious reproaches
of our Saviour, Jesus Christ,^ all profane scoffing at the Holy
Bible, or exposing any part thereof to contempt and ridicule,^
and all writings against the whole or any essential part of the
christian religion, striking at the root thereof, not in the way
of honest discussion and for the discovery of truth, but with
the malicious design to calumniate, vilify, and disparage it,
are regarded by the common law as blasphemous, and pun-
ished accordingly.^
1 Commonwealth v, Eneeland, 20 Pick. 213, per Shaw, C. J. For other
and more particular descriptions of this offence, see 4 Bl. Gomm. 59. The
People V. Boggles, 8 Johns. 293, per Kent, C. J. ; 2 Stark, on Slander,
p. 129-151.
3 The State v. Chandler, 2 Harringt 553 ; Rex v. Woolston, 2 Stra. 884,
more fully reported in Fitzg. 64 ; Bex v. Waddington, 1 B. & C. 26 ; The
People V. Buggies, 8 Johns. 290 ; 1 Buss, on Crim. ddO ; Bex v. Taylor,
1 Vent 293.
3 Updegraphv. The Commonwealth, 11S.&B. 394; 1 Buss, on Crim. 230;
2 Stark, on Slander, p. 138 - 143 ; Commonwealth v. Kneeland, 20 Pick.
206, 224, 225.
^ TJpdegraph v. The Commonwealth, 11 S. & B. 394 ; Rex v. Carlisle,
3 B. & Aid. 161 ; 2 Stark, on Slander, p. 144-147; Commonwealth v.
Kneeland, 20 Pick. 220, 224, 225 ; The People v. Buggies, «i^a. The
indictment for verbal hkupJiemy may be thus : —
The Jurors, (&c.) on their oath present, that — , of—, in the
county of , intending the holy name of God, [and the person andcha-
66 LAW OF BYIDENCB. [PAKT V*
§ 69. In most of the United States, statutes have been en-
acted against this offence ; bat these statutes are not under-
stood in all cases to have abrogated the common law ; the
rule being, that where the statute does not vary the class and
character of an offence, as, for example, by raising what was
a misdemeanor into a felony, but only authorizes a particular
mode of proceeding and of punishment, the sanction is cu-
mulative, and the common law is not taken away.^
^ 70. The proof of the indictment for this crime will consist
of evidence, showing that the defendant uttered or published
the words charged, and with the malicious and evil intent
alleged. The intent is to be collected by the jury from all the
circumstances of the case.^
racterof our Lord and Saviour Jesus CluistJ to dishonor and blaspheme, and
to scandalize and vilify the [Holy Scriptures and the] Christian religion, and
to bring [them] into disbelief and contempt, on ^ at , in the
county aforesaid, did, * wilfully, maliciously, and blasphemousl)^ with a loud
Toice, utter and publish in the presence and hearing of divers good citizens
of this (State,) the following false, profane, scandalous, and blasphemous
words, to wit : \here state Oie words, verbatim, with proper innuendoes, if the
case requires it;] * in contempt of the Christian religion and of good morals
and government, in evil example to others, and against the peace of the
(State) aforesaid.
The^indictment for publishing a blasphemous libel omits the words between
the two asterisks in the above precedent, and in their place chaxges as
follows : —
imlawfully and wickedly print and pubUsh, and cause toJie printed
and published, a false, scandalous and blasphemous libel of and concerning
the Christian religion, containing therein, among other things, divers scan*
dalous and blasphemous matters, of and concerning the Christian religion,
according to the tenor and effect following, to wit : [here set forth the libel in
hoc verba, with proper innuendoes,'] in contempt [&c., as above.]
1 Rex 17. Cariisle, 8 B. & Aid. 161, per Bayley, J. ; Rex v. Eobinson,
2 Burr. 803, per Ld. Mansfield. And see Rex v. Waddington, 1 B. & C. 26.
9 See further, infra, tit Libel.
PART v.] BWBBRT. 67
BRIBERY-1
§ 71. Bribery is generally defined to be the receiving or
offering of any undue reward, by or to any person whose
ordinary profession or business relates to the administration
of public justice, in order to influence his behavior in oflSce,
and incline him to act contrary to the known rules of honesty
and integrity.* But it is also taken in a larger sense, and
may be committed by any person in an official situation, who
shall corruptly use the power and interest of his place, for re-
wards or promises ; and by any person who shall give, or offer, or
take a reward for offices of a public nature ; or shall be guilty
of corruptly giving or promising rewards, in order to procure
votes in the election of public officers.* Thus, it has been held
bribery, by the common law, for a clerk to the agent for pri-
1 The indictment for bribing, or attempting to bribe a Judge, may be tbns :
The Jurors, (&c.) on their oath present, that A. B. of , on ,
at , within the county aforesaid, did unlawfully, wickedly, and cop-
mptly give (or, offer to give) to one C. D. of , he the said C. D. being
then and there a Judge (or, one of the Justices) of the (here insert the style
of the Court,) duly and legally appointed -and qualified to discharge die
duties of that office, the sum of dollars, as a bribe, present, and re-
ward, to obtain the opinion, judgment, and decree of him the said 0. D. in a
certain suit, (controversy, or cause,) then and there depending before him
the said C. D. as Judge as aforesaid, (and others the associate Justices of
said Court,) to wit, (here state the nature of the suit or proceeding,) the said
office of Judge (or. Justice) being then and there an office of trust concern-
ing the administration of Justice within the said (United States, or, State, or,
Conmionwealth,) against the peace, &c.
This precedent was drawn upon the statute of the United States of April
80, 1790, ^ 21, (see Davis's Freced. p. 79,) but is conceived to be equally
good, being varied as above, in a prosecution at common law.
9 3 Inst 145; 1 Russ. on Crim. 154 ; 4 Bl. Comm. 139; 1 Hawk. P. C.
ch. 67.
3 Ibid.
68 LAW OF EVIDENCE. [PART Y.
soners of war, to take money in order to procure the exchange
of some of them out of their turn ; ^ or, for one to oflFer a. cabi-
net minister a sum of money to procure from the crown an
appointment to a public office;^ or, corruptly to solicit an
officer of the customs, whose duty it was to s^ize forfeited
goods, to forbear from seizing them;^ or, to promise money
to a voter for his vote in favor of a particular ticket or interest
in the election of city officers,^ or of members of parliament^
§ 73. The misdemeanor is complete by the offer of the bribe j
so far as the offerer is concerned. If the offer is accepted,
both parties are guilty. And though the person bribed does
not perform his promise, but directly violates it, as for exam-
ple, if, in the case of an election, he votes for the opposing
candidate or interest, the offence of the corrupter is still com-
plete.^ So, though the party never intended to vote accord-
ing to his promise, yet the offerer is guilty.^
§ 73. If it be alleged in an indictment for corrupting a
voter, that he had a right to vote^ this allegation will be suffi-
ciently proved by evidence that he actually did vote, without
challenge or objection.® The allegation of the payment of
money to the voter may be proved by evidence that it was
under color of a loan, for which his note was taken, if it were
at the same time agreed that it should be given up, after he
1 Rex V. Beale, cited 1 East, 183.
9 Bex V. Yanglian, 4 Burr. 2494 ; Stockwell v. North, Noy*, 109; Moor,
781, S. C. So, where several persons mutually agreed to procure foranother
an appointment to a pubtic office, for a sum of money, to be divided among
them, it was held a misdemeanor at common law. Bex v. Pollman & aL
2 Campb. 229.
3 Bex f7. Everett, 8 B. & G. 114.
* Bex V, Plympton, 2 Ld. Baym. 1377.
i Bex V. Pitt, 3 BuiT, 1335, 1338.
6 Sulston V. Norton, 3 Burr. 1235 ; Harding v. Stokes, 8 M. & W. 233 ;
Henslow v. Fawcett, 3 Ad. & £1. 51. The last two cases were actions npon
the statute ; but the doctrine is that of the common law*
7 Henslow v. Fawcett, supra, per Patteson, J. and Coleridge, J.
8 Bigg V. Cui^nven, 2 Wils. 895 ; Comb v, Pitt, cited ibid. 898.
PABT v.]
BKIBEKY.
69
had Yoted.^ So, if the corrapter's own note were given for
the money.' So, if the transaction were in the form of a
wager or bet with the voter, that he wonid not vote for the
offererer's candidate or ticket^ So, if the voter received from
the offerer a card, or token, in one room, which he presented
to another person in another room, and thereupon received
the money, it is evidence of the payment of money by the
former.*
I Snlston v. Norton, S Bnrr. 12S5.
8 Ibid.
3 1 Hawk. P. C. ch. 67, sec. 10, (n) cites Lofft, 662.
4 Webb V. Smidi, 4 Bing. N. C. 878.
70 LAW OV EYIDENCS. [PABT Y.
BURGLARY. 1
§ 74. This offence is usually defined in the words of Lord
Coke, who says that a burglar is " he that, by niff/U, break'
eth and entereth into a man^ion-Aou^e, with intent to commit
a felony!^ ^ Evidence of all these particulars is therefore
necessary, in order to maintain the indictment.
§ 75. In regard to the time^ the malignity of the offence
consists in its being done in the nighty when sleep has dis-
armed the owner, and rendered his castle defenceless. And
it is night, in the sense of the law, when there is not daylight
[crepusculum or diluculum,] enough left or begun, to discern a
man's face withal. The ligt{t of the moon has no relation to
the crime.^ Both the breaking and entering must be done in
1 The form of an indictment for burglary, at common law, is as follows : —
The Jurors (&c.) upon their oath present, that (naming the prisoner,) late
of , on , and about the hour of , in the night of the same
day, with force and arms, at , in the county aforesaid, the dwelling-
house of one (naming the occupant) there situate, feloniously and bur-
glariously did break and enter, with intent the goods and chattels of the said
(occupant) in the said dwelling-house then and there being, then and there
feloniously and burglariously to steal, take, and carry away ; [if goods were
actually stolen, add as follows : — and one (here describe the goods, alleging
the value of each article,) of the yalue of dollars, of the goods and chat-
tels of the sidd (occupant,) in the dwelling-house aforesaid then and there
being found, then and there feloniously and burglariously did steal, take, and
carry away ;] against the peace of the State (or Commonwealth) aforesaid.
2 S Inst 63 ; 1 Russ. on Crimes, 785 ; Commonwealth v. Newell, 7 Mass.
247.
3 4 Bl. Comm. 224 ; 1 Hal. P. C. 550, 551 ; Commonwealth v. Cheyalier,
7 Dane's Abr. 134 ; 1 Gabbett, Cr. L. 169 ; The State v. Bancroft, 10 N.
Hamp. 105.
PABT v.] BUBGLART. 71
the night time ; but it is not essential that both be done in
the same night.^
§ 76. The breaking' of the house may be acttudj by the ap-
plication of physical force, or constructive, where an entrance
is obtained by fraud, threats, or conspiracy. An actual break'
ing' may be by lifting a latch; making a hole in the wall;^
descending the chimney;^ picking, turning back, or opening
the lock, with a false key or other instrument ; ^ removing or
breaking a pane of glass and inserting the hand or even a
finger;^ pulling up or down an unfastened sash ;^ removing
the fastening of a window, by inserting the hand through a
broken pane ;7 pushing open a window which moved on
hinges and was fastened by a wedge ; ^ breaking and opening
an inner door, after having entered through an open door or
window;^ or other like acts; and even by escaping from a
house, by any of these or the like means, or by unlocking the
hall door, after having committed a felony in the house, though
the offender were a lodger. ^^ Whether it would be bur-
1 1 Hal. P. C. 551 ; 1 Russ. on Crimes, 797; 1 Gabbett, Crim. L. 176,
177 ; Bex V. Smith, Rus. & R. 417. And a party present at the breaking,
on the first night, but not present at the entering, on the second, is still guilty
of the whole offence. Rex v. Jordan, 7 C. & P. 432.
^ 1 HaL P. C. 559 ; 2 East, P. C. 488. See 1 Gabbett, Crim. L. 169 -
172 ; The State v. Wilson, Coxe, 4S9 ; Rex v. Jordan, 7 C. & P. 432.
3 Rex r. Brice, Russ. & By. 450.
^ 1 Hale, P. C. 552 ; 1 Russ. on Crimes, 786. And see Pugh v. Griffith,
7 Ad. & £1. 827.
5 Rex V. Davis, Russ. & Ry. 499 ; Rex v. Perkes, 1 C. & P. 300 ; Reg. v.
Bird, 9 C. & P. 44.
6Rexv. Haines, Russ. & Ry. 451 ; Rex v, Hyams, 7 C. & P. 441. So is
cutting and tearing down a netting of twine, nailed over an open window.
Commonwealth v. Stephenson, 8 Pick. 354.
7 Rex V. Robinson, 1 Mood. Cr. Cas. 327. And see Rex v. Bailey, Russ.
& R 341. Breaking open a shutter-box adjoining the window was held no
boTglary. Rex v. Paine, 7 C. & P. 135.
8 Rex V. Hall, Russ. & R 355.
9 Rex V, Johnson, 2 East, P. C. 488.
10 Reg. V. Wheeldon, 8 C & P. 747 ; Rex v. Lawrence, 4 C. & P. 231.
Whether raiung a trap, or fiap-door, which is kept down by its own weight,
72 LAW OF BVIDENCS. [PABT Y.
glary, in a guest at an inui to open his own chamber door
with a felonious intent, is greatly doubted.^ The breaking
must also be into some apartment of the house, and not into
a cupboard, press, locker, or the like receptacle, notwithstand-
ing these, as between the heir and executor, are regarded
as fixtures.^ It must also appear that the place through which
the thief entered was closed ; for if he entered through a door
or window left open by the carelessness of the occupant, it is
-not burglary.8
§ 77. The offence of breaking the house is also construe"
iively committed, when admission is obtained by threats, or
by fraud ; as, if the owner is compelled to open the door by
fear, or opens it to repel an attack, and the thieves rush in ; ^
or, if they raise a hue and cry, and rush in when the consta-
ble opens the door ;^ or, if entrance is obtained by legal pro-
cess fraudulently obtained ; ^ or, under pretence of taking
lodgings ; "^ or, if lodgings be actually taken, with an ultimate
felonious intent ; ® or, if the entrance is effected by any other
fraudulent artifice ; or, the house be opened by the servants
within, by conspiracy with those who enter.^
18 a sufficient breaking of the house, is a question upon which there has been
some diversity of opinion. See 1 Russ. on Crimes, 790 ; 1 Hal. P. C. 554.
In Rex V. Brown, 2 East, P. C. 487, in 1790,'Buller, J. held that it was. In
Bex v. Callan, Bus. & B. 157, in 1809, the point was reserved for the con-
sideration of the twelve Judges, and they were equally divided upon it And
in 1880, in B«x v. Lawrence, 4 C. & P. 281, it was held by BoUand, B. to be
not sufficient In this last case, that of Bex v. Brown was referred to. Be-
moving loose planks in a partition wall, they not being fixed to the freehold,
has been held not a breaking. Commonwealth v. Trimmer, 1 Mass. 476.
1 2 East, P. C. 488 ; 1 Hale, P. C. 554.
2 Foster, 109 ; 2 East, P. C. 489.
3 3 Inst 64; 1 Hal. P. C. 551, 552 ; The State v. Wilson, Coxe, 489 ;
1 Buss, on Crim. 786.
4 2 East, P. C. 486.
5 2 East, P. C. 485.
« Rex 17. Farr, J. Kelyng, R. 43 ; 2 East, P. C. 485 ; 1 Buss, on Cr. 793.
7 Ibid.
8 Ibid.
9 2 East, P. C. 486. And it is burglary in both. Bex v. Cornwall, lb. ;
PART y.] BUEGLART. 73
§ 78. There must be some proof of aetnal entry into the
bouse; but it is not always necessary to show an entrance
of the person ; for if the intent be to commit a felony in the.
stealing of goods- in the house, the insertion of any instru-
ment for that purpose, through the broken aperture, will be
sufficient to complete the offence. But if the instrument were
inserted, not for the purpose of abstracting the goods, but for
the purpose of completing the breaking and thereby effecting
an entrance to commit the intended felony, it is not sufficient.
Thus, to break the window or door, and thrust in a hook, to
steal, or a weapon to rob or kill, is burglary, though the hand
of the felon be not within the house ; but to thrust an auger
through, in the act of effecting an entrance by boring, does
not amount to burglary.^ So, if, after breaking the house,
the thief sends in a child of tender age to bring out the
goods, he is guilty of burglary.^
§ 79. The building into which the entry is made, must be
proved to be a mansion or dwelUng^house^ for the habitation
of man, and actuaUy inhabited, at the time of the offence. It
is not necessary, however, that the inhabitants be within the
house at the moment ; for burglary may be committed while
all the family are absent for a night or more, if it be animo
revertendi? But if the owner or his family resort to the house
2 Stra. 881, S. C. ; 1 Russ. on Crimes, 794 ; 1 Gabbett, Crim. L. 173 ; Be-
gins 17. Johnson, 1 Car. & Marshm. 218. But if the servant is fi||thful, and
intended only to entrap the thief, it is not a burglarious entry. Ibid.
1 2 East, P. C. 490 ; Bex i7. Hughes, 1 Leach, Cr. L. 452 ; Bex o. Bust,
1 By. & M. 183. Whether the act of discharging a bullet into the house, -
with intent to kill, is a burglarious entry into the house, is doubted. Lord
Hale thought it was not. 1 Hal. P. C. 555. Serjeant Hawkins states it as
an example of a constructive entry. 1 Hawk. P. C. <^h.S8, ^ 11. And Mr.
East thinks it difficult to distinguish between this case and that of an instru-
ment thrust through a window for the purpose of committing a felony, unless
it be that the one instrument is held in the hand, at the time, and the other
is discharged from it 2 East, P. C. 490. See 1 Gabbett, Crim. L. 1 74, 1 75,
where this difference is said to be material.
9 1 Hal. P. C. 555, 556.
s 1 Hal. P. C. 556; 4 BL Comm. 225; 1 Gabbett, Crim. L. 181, 182.
VOL. III. 7
\
74 LAW OF BVIBBNCE. [PABT V.
only in the day time, or if he enoploy persons only to sleep
there, who are not of his family nor in his domestic service
, and employment, though it be to protect the property from
thieves, this is not sufficient proof of habitancy by the owner.^
Nor does habitancy commence with the pqtting o( fumilure
into the house, before the actual residence there of the owner
or his family.^ Neither will the casual occupancy of a tene-
ment as a lodging place, suffice of itself to constitute it a
dwelling-house ; as, if a servant be sent to lodge in a bam^ or
a porter to lodge in a warehouse^ for the purpose of watching
for thieves.^ But the actual occupancy of the owner will not
alone constitute the place his dwelling-house, unless it is a
permanent and substantial edifice ; and therefore to break
open a tent or booth, erected in a fair or market, though the
owner sleep in it, is not burglary^
§ 80. The term " mansion," or " dwelling-house," compre-
hends all the outbuildings which are parcel thereof^ though
they be not contiguous to it AH buildings within the same
curtilage or common fence, and used by the same family, are
considered by the law as parcel of the mansion. If they are
separated from the dwelling-house, and are not within the
same common fence, though occupied by the same owner,
the question whether they are parcel of the mansion or not,
is a question for the Jury, upon the evidence.^ And here, it
Breaking % house in town, which was shut up, while the family were spend-
ing the summer in the country, has been held burglary. Commonwealth r.
Brown, 3 Rawle, K. 207.
I Ibid. ; 2 East, P. C. 497, 498, 499; Rex v. Flannagan, Rus. & R. 187;
Rex f. Lyons, 1 Leach, Cr. L. 221 ; Rex r. Fuller, Id. 222, n,\ 1 Russ. on
Crimes, 797-800.
9 Rex V, Lyons, 1 Leach, Cr. L. 221 ; 2 East, P. C. 497, 498 ; Rex t?.
Thompson, 1 Leach, Cr. L. 893 ; 1 Gabbett's Crim. Law, 480. But see,
contra^ Commonwealth o. Brown, 3 Rawle, 207.
3 Rex V. Smith, 2 East, P. C. 497 ; Rex v. Brown, Id. 493, 497, 501.
* 1 Hale, P. C. 657 ; 4 Bl. Comm. 226.
5 1 Hale, P. C. 658, 659 ; 3 Inst 64 ; 1 Hawk. P. C. ch. 38, § 21 -25 ;
1 Gabbett, Crim. L. 178 ; 2 East, P. C. 492 -495 ; 1 Russ. on Crimes, 800-
802 ; Parker's case, 4 Johns. 424 ; The State v. Ginns, 1 Nott & M'C. 583 ;
PABT v.] BtJRGLABT. 76
becomes material to inquire whether the apartment or bnild*
ing which was broken had a separate door of entrance of its
own, or was approachable only tbrongh the common door of
the dwelling-house. For if the owner of a dwelling-house
should let part of it for a shop, and the tenant should occupy
it for his trade only, w'^thout sleeping there, and it should
have a door of its own, distinct from that of the dwelling-
house ; here, though it be under the roof of the mansion, yet
it is not a place in which burglary can be committed.^ But
if there is only one common door of entrance to both, it is stjll
part of the dwelling-house of the owner of the mansion.^
§ 81. And in regard to the ovmership of the dwelling-house,
if the general owner of the mansion, in which he resides,
should let a room in it to a lodger, who enters only by the
The State v. Langford, 1 Der. 25S ; The State v. Wilson, I Hayw. 242 ;
The State v. Twitty, Id. lOd; Rex v. Westwood, Rasa. & B. 495 ; Rex v.
Chalking, Id. 834. Thus, an outhouse within an inclosed yard has been held
part of the dwelling-houae of the occupying owner, though he has another
tenant opening into the same yard, in the occupancy of a tenant having an
easement there. Rex v. Walters, Ry. & M. 13. So, a permanent building,
used and slept in only during a fair. Rex v. Smith, 1 M. & Rob. 256. So,
a house occupied only by the servants of the owner, the burglary being in
his shop adjoining, and communicating with the house by a trap-door and
ladder. Rex v. Stock, R.&Ry. 185; 2 Taunt. 3 39,8.0. So, a building within
the same inclosure, used with the dwelling-house, but accessible only by an
open passage. Rex v, Hancock, R. & Ry. 1 70. Though no person sleeps
in such building. Rex v. Gibson, 2 East, P. C. 508. ApartQients let to
lodgers, as tenants, are the dwelling-houses of the lodgers, if the owner do
not dwell in the same house, or if the lodger has a separate entrance for him-
self, from the street ; but if the owner, by himself or his servants, occupies a
part of the same house, the whole is his dwelling-house. Rex v. Gibbons, R.
& Ky. 422 ; Rex v. Canell, 2 East, P. C. 506 ; Rex v. Turner, Id. 492 ; Rex
V. Martin, R. & Ry. 108.
1 1 Hale, P. C. 557, 558 ; 4 BI. Comm. 225 ; J. Kelyng, 83, 84.
> Rex V. Gibson, 1 Leach, Or. L. 896 ; 2 East, P. C. 507, 508. In the
case of a large manufactory in the centre of a pile of buildings, the wings
of which were inhabited, but without any communication with the manufa<}-
tory in the centre, it was held that burglary could not be committed in
the latter place, though the whole pile was inclosed within a common fence.
Bex r. Eggington, 2 East, P. C. 494.
76 LAW OF EVIDBNGE. [PART V.
common door, and bis apartment is feloniously broken and
entered, it is burglary in the bouse of the general owner.^
But if the lodger's room has a separate outer entrance of its
own, and no other, the room is the house of the lodger.^ And
where rooms in a house are let to several tenants, who enter
by a common hall door; if the general owner does not inhabit
the house, then each apartment is the separate dwelling-house
of its own tenant. Such is the case of chambers in the Inns
of Court, rooms in Colleges, and the like.^ If two have the
title to two contiguous dwelling-houses in common, paying
rent and taxes for both out of their common fand, yet if their
dwellings be separately inhabited, and one be feloniously
broken and entered, it is burglary in the d welling-hoUse of the
occupant of that one only, and not of both; but if in such
case the occupancy also is joint, the entrance for both fami-
lies being by the same common door, it is the dwelling-house
of both.^ In all these cases, the offence must be laid accord-
ingly, or the variance will be fatal.
§ 82. The felonious intenty charged in the indictment, is
sufficiently proved by evidence of a felony actually commit-
ted in the house ; it being presumed that the act was done
pursuant to a previous intention.^ If none was committed,
then the intent to commit the felony charged must be dis-
tinctly proved. And it is not necessary that it be a felony at
common law ; for if the act has been created a felony by
statute, it is sufficient.^
§ 83. The time of the breaking may be inferred by the jury
from the circumstances of the case ; as, for example, if the
1 1 Hale, P. C. 556 ; 4 Bl. Comm. 225 ; 2 East, P. C. 499, 500; Lee o.
Gansell, Cowp. 8 ; J. Kel. 94.
3 Ibid.; 1 Russ. on Crimes, 800-803.
3 Ibid. ; 2 East, P. C. 505 ; Evans v. Finch, Cro. Car. 473 ; Bex v, Rogers,
1 Leach, Cr. L. 104 ; 2 Hale, P. C. 358.
4 Rex V. Jones, 2 Leach, Cr. L. 607 ; 2 East, P. C. 504.
5 1 Hale, P. C. 560.
6 2East,P.C. 511.
FABT v.] BURGLARY. 77
goods stolen were seen in the house after dark, and at day-
light in the morning were missing.^ And the fact of break'
ing a closed door may also be inferred from evidence that it
was found open in the morning, and that marks of violent
forcing were found upon it.^
t The State v. Bancroft, 10 N. Hamp. 105.
9 Commonwealth v. Merrill, Thacher's Crim. Cas. 1.
?•
78 LAW 01? BVIDENCB. [PART V.
CHEATING.
§ 84. The indictment for ibis offence, at common law, mnsi
show, and of coarse the prosecutor must prove, first, that the
offence was of a nature to affect not only particular individu-
als, but the public at large, and against which common pru-
dence and care are not sufficient to guard} Hence it was held
indictable for common players to cheat with false dice ; ^ and
for a person to pretend to have power to discharge soldiers,
thereupon taking money from them for false discharges.^ So,
obtaining an order from the Court to hold to bail, by means
of a false voucher of a fact, fraudulently produced for that
purpose;^ furnishing adulterated bread to the government,
for the use of a Military Asylum ;^ and selling Array-bread
to the government, by false marks of the weight, fraudulently
put on the barrels;^ have been held indictable offences at
common law. On the other hand, it has been held not indict-
able for a man to violate his contract, however fraudulently
it be broken ]^ or to obtain goods by false verbal representa-
tions of his credit in society and his ability to pay for them ;®
1 This was stated by Ld. Mansfield as indispensably necessary to render
the offence indictable. See Rex v. Wheatley, 2 Burr. 1125 ; cited with ap-
probation by Lord Kenyon, as establishing the true bounds between fraads
which are and are not indictable at common law, in Rex v, Lara, 6 T. R.
565. And see 3 Chitty, Crim. L. 994 ; Cross v, Peters^ 1 Greenl. 887, per
Mellen, C. J. ; The People v. Stone, 9 Wend. 182 ; The State w. Justice,
2 Dev. 199 ; The State t>. Stroll, 1 Rich. 244.
2 Leeser's case, Cro. Jac. 497.
3 Serlested's case, Latch, 202.
* Per Ld. EUenborough, in Omealy v. NeweD, 8 East, 864, 372,
5 Rex V. Dixon, 8 M. & S. 14.
6 Respublica v. Powell, 1 Dall. 47.
7 Commonwealth v. Hearsey, 1 Mass. 137.
8 Commonwealth v. Warren, 6 Mass. 72.
PART v.] GHBATINa. 79
or, tortiously to retain possession of a chattel ; ^ or, tortiously
to obtain possession of a receipt;^ or, of lottery tickets, by
pretending to pay for them by drawing his check on a banker
with whom he had no funds ; ^ or, to receive good barley from
an individual to grind, and instead thereof to return a musty
mixture of barley and oatmeal ; ^ or, fraudulently to deliver
a less quantity of beer than was contracted for and repre-
sented;^ or, fraudulently to obtain goods, on his promisiB to
send the money for them by the servant who should bring
them ; ® or, to borrow money or obtain goods in another's
name, falsely pretending to have been sent by him for that
purpose ; ^ or, falsely and fraudulently to warrant the sound-
ness of a horse, or the title to land.^
§ 85. Under this head may be ranked the offence of selling
unwholesome food, which was indictable by the common law,
and by the statute of 51 Hen. 3, st. 6.^ In such case, it is im-
material whether the offence be committed from malice or
the desire of gain ; nor whether the offender be a public con-
tractor or not, or the injury be done to the public service or
not ; nor that he act^d in violation of any duty imposed by
his peculiar situation ; nor, that he intended to injure the
health of the particular individual for whose use the noxious
articles were sold ; the essence of the offence consisting in
doing an act, the probable consequences of which are injuri-
ous to the health of man.^^
1 The People v. Miller, 14 Johns. 871.
3 The People v. Babcock, 7 Johns. 201.
3 Rex t;.Lara, 6 T. R. 565. But see contra, 8 Campb. 870.
4 Rex V. Haynes, 4 M. & S. 214.
6 Rex V. Wheatly, 2 Burr. 1125.
0 Rex V. GoodhaU, 1 R. & Ry. 461.
7 Regina v. Jones, 1 Salk. 379 ; Rex v. Bryan, 2 Stra. 866.
8 Rex V. Pywell, 1 Stark. R. 402; Rex v, Codrington, 1 C. & P. 661.
See also, Winsbach v. Stone, 2 Watts & Serg. 408.
9 4 Bl. Comm. 162 ; 2 East, P. C. 822.
W Ibid. ; 2 Chitty, Crim. L. 567, n. ; 8 M. & S. 16, per Ld. Ellenborongh ;
Rex t7. Treeve, 2 East, P. C. 821 ; 1 Rass. <m Crim. 109.
80 LAW OP BVIDBNCB. [PART V-
§ 86. To cheat a man of his money or good?, by u»ing
false weights or false measures, has been indictable at com-
mon law from time immemorial. In addition to this, cheat-
ing by false "privy tokens and counterfeit letters in other
men's names," was made indictable by the statate of 33 Hen.
8, ch. 1, which has been adopted and acted upon as common
law in some of the United States, and its provisions are be-
lieved to have been either recognized as common law, or
expressly enacted, in them all.^ Under this statute it has
been held, that the fraud must have been perpetrated by
means of some token or thing visible and real, such as a ring
or key, or the like; a verbal representation not being suflSi-
cient ; or else by means of a writing, either in the name of
another, or so framed as to afford more credit than the mere
assertion of the party defrauding.^
§ 87. In the second place, the indictment must show, and
the prosecutor must prove, ike manner in which the cheating^
was effected; as, for example, if it were by a false token, the
particular kind of token must be specified;^ but if several
tokens or means are described, it will be sufficient if any one
of them be proved.*
1 Commonwealth v. Warren, 6 Mass. 72 ; The People r. Johnson, 12 Johns.
292.
« 2 East, P. C. 689 ; 3 Chitty, Crim. Law, 997 ; Rex v. Wilders, cited in
2 Burr. 1128, per Ld. Mansfield. The statate of 30 Geo. 2, ch. 24, was
enacted to supply the deficiency of the existing law against cheating, by
rendering it an indictable ofience to cheat another of his money or goods, by
any false pretences whatsoever. Similar statutes have been enacted in many
of the United States ; but they are generally construed to extend only to
<uch pretences as are calculated to mislead persons of ordinary prudence
and caution. See Rex v. Young, 3 T. R. 98 ; Rex v, Goodhall, 1 R. & Ry.
461 ; The People ». Williams, 4 Hill, N. Y. R. 9; The State v. Mills,
6 Shepl. 211; Commonwealth ». Wilgus, 4 Pick. 177; Commonwealth r.
Drew, 19 Pick. 179 ; Commonwealth v. Call, 21 Pick. 615; The People v.
Galloway, 17 Wend. 640.
3 Rex V, Mason, 2 T. R. 681 ; 2 East, P. C. 837.
4 Rex V, Dale, 7 C. & P. 852 ; Rex r. Story, 1 R. & Ry. 80 ; The State©.
Dunlap, 11 Shepl. 77; The State v. Mills, 5 Shepl. 211 ; 14 Wend. 547, per
Walworth, C. ; Rex v. Pcrrott, 2 M. & S. 379.
PART v.] CHEATIKO. 81
§ 88. In the third place, it is material to specify and prove
the person intended to be defraaded; and that the design was
successfully accomplished^ at least so far as to expose the per-
son to the danger of loss.^
1 The State r. Woodson, 5 Humpli. 55 ; The People v. Gennog, 11 Wend.
18 ; Commonwealth v. Wilgus, 4 Pick. 177.
82 LAW OF EVIDENCE. [PART Y.
CONSPIRACY.
§ 89^ A CONSPIRACY may be described in general terms, as
a combination of two or more persons, by some concerted
action, to accomplish some criminal or unlawful purpose ; or
to accomplish some purpose, not in itself criminal or unlaw-
ful, by criminal or unlawful means.^ It is not essential that
I The books contain much discussion on the nattire and definition of this
offence ; but this description being one of the most recent, and given upoa
great consideration, is deemed sufficient. See Commonwealth v. Hunt,
4 Met. 111. The learned Chief Justice, in delivering the judgment in that
case, expounded what may be regarded as the general doctrine of American
law on this subject, as follows : — '* We have no doubt, that bj the opera-
tion of the constitution of this Commonwealth, the general rules of the com-
mon law, making conspiracy i^ indictable offence, are in force here, and that
this is included in the description of laws which had, before the adoption of
the constitution, been used and approved in the Province, Colony, or State
Massachusetts Bay, and usually practised in the courts of law. Const, of
Mass. c. vi. ^ 6. It was so held in Commonwealth v, Boynton, and Common-
wealth V, Pierpont, cases decided before reports of cases were regularly pub-
lished,* and in many cases since. Commonwealth v. Ward, 1 Mass. 473;
Commonwealth o. Judd, and Commonwealth r. Tibbetts, 2 Mass. 329, 536 ;
Commonwealth v. Warren, 6 Mass. 74* Still, it is proper in this connection
to remark, that although the common law in regard to conspiracy in this
Common weahh is in force, yet it will not necessarily follorw that every indict-
ment at common law for this offence is a precedent for a similar indictment
in this State. The general rule of the common law is, that it is a criminal
and indictable offence, for two or more to confederate and combine together,
by concerted means, to do that which is unlawful or criminal to the injury
of the -public, or portions or classes of the community', or even to the rights
of an individual. This rule of law may be equally in force as a rule of the
common law in England and in this Commonwealth ; and yet it must depend
upon the local laws of each country to determine, whether the purpose to be
accomplished by the combination, or the concerted means of accomplishing
* See a statement of these cues, in 8 Law Reporter, 296, 296.
PABT y.] CONSPIBACT. 83
the act intended to be done should be punishable by indict-
ment ; for if it be, to destroy a man's reputation by verbal
slander,^ or to seduce a female to elope from her parent's
it, be unlawful or criminal in the respective countries. All those laws of the
parent country, whether rules of the common law, or early English statutes,
which were made for the purpose of regulating the wages of laborers, the
settlement of paupers, and making it penal for any one to use a trade or
handicraft to which he had not served a full apprenticeship — not being
adapted to the circumstances of our colonial condition — were not adopted,
used, or approved, and therefore do not come within the description of the
laws adopted and confirmed by the provision of the constitution already
cited. This connderation will do something towards reconciling the Eng-
lish and American cases, and may indicate how far the principles of the Eng-
lish cases will apply in this Commonwealth, and show why a conviction in
England, in many cases, would not be a precedent for a like conviction
here. The King v. Journeymen Tailors of Cambridge, 8 Mod. 10, for in-
stance, is commonly cited as an authority for an indictment at common law,
and a conviction of journeymen mechanics of a conspiracy to raise their
wages. It was there held, iJiat the indictment need not conclude contra for^
mam statuti, because the gist of the offence was the conspiracy, which was an
ofience at common law. At the same time it was conceded, that the unlaw-
ful object to be accomplished was the raising of wages above the rate fixed
by a general act of parliament. It was therefore a conspiracy to violate a
general statute law, made for the regulation of a large branch of trade, affect-
ing the comfort and interest of the public ; and thus the object to be accom-
plished by the conspiracy was unlawful, if not criminal." " But the great
difficulty is, in framing any definition or description, to be drawn from the
decided cases, which shall specifically identify this offence — a description
broad enough to include all cases punishable under this description, without
including acts which are not punishable. Without attempting to review and
reconcile all the cases, we are of opinion, that as a general description, though
perhaps not a precise and accurate definition, a conspiracy niust be a combi-
nation of two or more persons, by some concerted action, to accomplish some
criminal or unlawful purpose, or to accomplish some purpose, not in itself
crinunal or unlawful, by criminal or unlawful means. We use the terms
criminal or unlawful, because it is manifest that many acts are unlawful
which are not punishable by indictment or other public prosecution ; and
yet'there is no doubt, we think, that a combination by numbers to do them
would be an unlawful conspiracy, and punishable by indictment." See
4 Met 121 - 123. And see the People r. Mather, 4 Wend. 229, 259 ; The
State r. Rowley, 12 Conn. 101 ; Commonwealth v. Carlisle, 1 Joum. Jurisp.
225, per Gibson, J.; Regina v. Vincent, 9 C. & P. 91, per Alderson, B. ;
Bex V. Seward, 1 Ad. & £1. 713, per Ld. Denman.
1 4 Met. 123, per Shaw, C. J. ; Bex v. Armstrong, 1 Yentr. 304.
84 LAW or EVIDENCE. [PART V.
house, for the purpose of prostitution, the conspiracy is a
criminal offence, though the act itself be not indictable.^
§ 90. The objects of this crime, though numerous and mul-
tiform, may be classified as follows : — 1st, To perpetrate an
offence which is already punishable by law ; as, for example,
to commit a murder, or other felony, or a misdemeanor, such
as to vilify the government, and embarrass its operations ; or
to sell lottery tickets, when forbidden by law, and the like.^
And here it may be observed, that where the conspiracy to
commit a felony is carried into effect, the crime of conspiracy,
which is a misdemeanor, is merged in the higher offence of
felony ; but that if the object of the conspiracy be to commit
a misdemeanor only, and it be committed, the offence of con-
spiracy is not merged, but is still separately punishable.^
2dly, To injwe a third person by charging him with a crime^
or with any other act tending to disgrace and injure him^ or
with intent to extort money from him by putting him in fear
of disgrace or harm ; or by defrauding him of bis property, or
ruining his reputation^ trade^ or profession. Of this class are
conspiracies to indict a man of a crime, in order to extort
money from him ;^ or falsely to charge a man with the pater-
nity of a bastard child ; ^ or with fraudulently abstracting
goods from a bale ;^ or, to make him drunk in order to cheat
1 Bex V. Ld. Grey, 1 East, P. C. 460; Mifflin v. The Commonwealtli,
5 W. & Serg. 561 ; Anderson v. The Commonwealth, 5 Band. 627 ; Bespub-
lica V. Hevice, 2 Yeates, 114; Bex v. Delaval, S Burr. 1434; The State v.
Murphy, 6 AUu 765.
9 Commonwealth v. Crowninshield, 10 Pick. 497; Bex v. Vincent, 9 C.
6 P. 91 ; Commonwealth v. Kingsbury, 5 Mass. 106 ;- The State v, Bucha-
nan, 5 H. & J. S17.
3 Ibid. ; The People v. Mather, 4 Wend. 265 ; The State r. Murray,
3 Shepl. 100.
4 Bex V. Hollingberry, 4 B. & C. 329 ; 6 D. & B. 345, S. C. If the object
be to extort money from him, it is immaterial whether the charge be true
or false. Ibid. And see Wright v. Black, Winch. 28, 54.
^ 1 Hawk. P. C. ch. 72, sec. 2 ; Begina v. Best, 2 Ld. Baym. 1167. And
see Commonwealth v. Tibbetts, 2 Mass. 536.
6 Bex V. Bispal, 8 Burr. 1320.
PART v.] OONSPIBAOY. 85
bim ; ^ or, to impose inferior goods upon another, as and for
goods of another and better kind, in exchange for goods of
his own;^ or, to impoverish a man by preventing him from
working at his trade ;^ or, to defraud a corporation.^ But it
is said, that if the act to be done is merely a civil trespass,
such as to poach for game,^ or, to sell an unsound horse with
a false warranty of soundness,^ an indictment will not lie.
3dly, To do an act tending to obstruct^ pervert or defeat the
course of public justice. Hence it is an indictable offence, to
conspire to obtain from magistrates a false certificate that a
highway is in good repair, in order to influence the judgment
to be pronounced against the parish for not repairing ; "^ or,
to dissuade a witness from attending Court and giving evi-
dence ; ^ or, to procure false testimony ; or to affect and bias
witnesses by giving them money ; ® or, to publish . a libel, or
handbills, with intent to influence the jurors who might try
a cause ; ^^ or, to procure certain persons to be placed upon
the jury.^^ 4thly, To do an act, not unlawful in an individual^
but with intent either to accomplish it by unlawful meansy or
to carry into effect a design of injurious teindency to the pub"
lie. Of this nature are conspiracies to maintain each other,
right or wrong ; ^ or, to raise the price of stocks or goods by
I The State v. Younger, 1 Dever. 357.
9 Rex V. Macart^i 9 Ld. Rajm. 1179 ; The State v. Rowley, 12 Conn. 101.
So, to defraud a trader of his goods hj false pretences. Regina v. Kendrick,
5 Ad. & £1. 49, N. S. And see Begina v. Button, 12 Jur. 1017 ; Regina v.
GiHnpertz, 9 Ad. & EL 824, N. S. ; Commonwealth v. Ward, 1 Mass. 478.
3 Rex V. Ecdes, 1 Leach, Cr. Cas. 374.
4 The State v. Buchanan, 5 Har. & J. 317 ; Commonwealth v, Warren,
6 Mass. 74 ; Lapibert v. The People, 7 Cowen, 166.
ft Rex V. Turner, 13 East, 228.
0 Bex V. Pywell, 1 Stark. B. 402.
7 Bex V, Mawbey, 6 T. B. 619.
8 Rex V. Steventon, S East, B. 362. So, to destroy evidence. The State
V. De Witt, 1 Hill, S. Car. B. 282.
9 Bex V. Johnson, 2 Show. 1.
10 Bex V. Gray, 1 Burr. 510 ; Bex v. Jollifie, 4 T. R. 285 ; Rex v. Bur-
dett, 1 Ld. Raym. 148.
II Rex V. Opie, 1 Saund. 301.
IS The Poulterei^B case, 9 Co. 56.
VOL. III. * 8
9
86 LAW OF EVIDENCE. [PABT V.
artificial excitement, beyond what tbey would otherwise
bring.^ So, where certain brokers agreed together, before a
sale at auction, that only one of them should bid on each
article sold, and that the articles thus purchased should after-
wards be sold again by themselves, and the proceeds divided ;
it was held a conspiracy.^ So, if the workmen of any trade
combine to raise the price of wages, by the adoption of rules
with penalties, or other unlawful means of coercion ; ^ or if
the masters in like manner conspire to reduce them.^ Sthly,
To defraud and cheat the public^ or whoever may be cheated.
Of this class are conspiracies to manufacture base and spuri-
ous goods, and sell them as genuine ; ^ and conspiracies to
raise the market prices by false news and artificial excite-
ments, as akeady mentioned ; and conspiracies to smuggle
goods, in fraud of the revenue ; * or to defraud traders of their
goods, by false pretences ; ^ and the like.
§ 91. The essence of this offence consists in the unlawful
agreement and combination of the parties ; and therefore it is
completed whenever such combination is formed, although
no act be done towards carrying the main design into effect.
If the ultimate design was unlawful, it is of no importance
to the completeness of the offence, whether the means were
lawful or not; as for example, in a conspiracy to extort
money from a man by means of a criminal charge, the con-
spiracy for this object is criminal, whether he be guilty or not
of the offence imputed to him. On the other hand, if the
ultimate object is not unlawful, the combination to effect it
1 Rex V. De fierenger, 3 M. & S. 68 ; Rex v, Norris, 2 Ld. Ken. 300 ;
Rex t7. Hilbers, 2 ChiUy, R. 163.
« Levi V. Levi, 6 C. & P. 239.
3 The People v. Fisher, 14 Wend. 9 ; Commonwealth v. Hunt, Thach.
Crim. Cas. 609 ; 4 Met 111, S. C. ; Rex v. Bykerdyke, 1 M. & Rob. 179.
4 Per Ld. Kenyon, in Rex v. Hammond, 2 Esp. R. 719, 720.
ft Commonwealth v, Judd, 2 Mass. 329.
8 Regina v. Blake, 8 Jur. 145 ; Id. 666 ; 6 Ad. & £1. 126, N. S.
7 King V. Regina, 9 Jar. 833 ; Rex v. Roberts, 1 Campb. 399.
PABT v.] CONSPIRACY. 87
is not an offence, unless the means intended to be employed
are unlawful.^
§ 92. We have shown, in a preceding volume, that in
proving this offence^ no evidence ought, in strictness, to be
given of the acts of strangers to the record, in order to affect
the defendants, until the fact of a conspiracy with them is
first shown, or until at least a primd facie case is made out
either against them all, or against those who are affected by
the evidence proposed to be offered ; and that of the suffi-
ciency of such primd fade case, to entitle the prosecutor to go
into other proof, the Judge, in his discretion, is to deter-
mine. But this, like other rules in regard to the order in
which testimony is to be adduced, is subject to exceptions,
for the sake of convenience ; the Judge sometimes permitting
evidence to be given, the relevancy of which is not apparent
at the time when it is offered, but which the prosecutor or
counsel shows will be rendered so, by other evidence which
he undertakes to produce.^ Accordingly it is now well set-
tled in England, and such is conceived to be the rule of Ame-
rican law, that on a prosecution for a crime to be proved by
conspiracy, general evidence of a conspiracy may in the first
instance be received, as a preliminary to the proof that the
defendants were guilty participators in that conspiracy ; but,
in such cases, the general nature of the whole evidence
intended to be adduced should be previously opened to the
Court, so that the Judge may form an opinion as to the pro-
bability of affecting the individual defendants by particular
proof, applicable to them, and connecting them with the gene-
ral evidence of the alleged conspiracy ; and if, upon such
opening it should manifestly appear that no particular proof,
sufficient to affect the defendants, is intended to be adduced,
it would be the duty of the Judge to stop the cause in
1 Rex r. Best, 2 Ld. Raym. 1167; Rex r. Spragg, 2 Burr. 998; Rex v.
Rispal, 8 Burr. 1320; O'Connell v. Reginam, 11 CI. & Fin. 155; 9 Jur. 25.
« See ante, Vol. 1, ^ 51, a. ; Id. § 1 11 ; 2 Stark. Ev. 284 ; Rex v. Ham-
mond, 2 Esp. R. 719.
88 LAW OF EVIDBNCB. [PABT V.
limine^ and not to allow the general evidence to be re-
ceived.*
§ 93. The evidence in proof of a conspiracy, will generally,
from the nature of the case, be circumstantial. Though the
common design is the essence of the charge, it is not neces-
sary to prove that the defendants came together and actually
agreed, in terms, to have that design, and to pursue it by
common means. If it be proved that the defendants pursued
by their acts the same object, often by the same means, one
performing one part ahd another another part of the same, so
as to complete it, with a view to the attainment of that same
object, the jury will be justified in the conclusion, that they
were engaged in a conspiracy to effect that object.^ Nor is
it necessary to prove that the conspiracy originated with the
defendants ; or that they met during the process of its con-
coction ; for every person, entering into a conspiracy or com-
mon design already formed, is deemed in law a party to all
acts done by any of the other parties, before or afterwards, in
furtherance of the common design.^
§ 94. The principle^ on which the acts and declarations of
other conspirators^ and acts done at different times, are admit-
ted in evidence against the persons prosecuted, is, that by the
act of conspiring together, the conspirators have jointly as-
sumed to themselves, as a body, the attribute of individual-
ity, so far as regards the prosecution of the common design ;
thus rendering whatever is done or said by any one, in fur-
therance of that design, a part of the res gestce^ and therefore
1 The Queen's case, 2 Brod. & Bing. 310, by all the Judges. And see
Regina v. Frost, 9 C. & P. 129 ; Rex v. Hunt, 3 B. & Aid. 566 ; 3 Russ. on
Crim. 699, 700.
s Regina r. Murphy, 8 C. & P. 297, per Coleridge, J. And see Common-
wealth v. Ridge way, 2 Ashm. 247.
3 Ibid. And see antey Vol. 1, ^ 111, and cases there cited ; Rex v. Cope,
1 Stra. 144 ; Rex v. Parsons, 1 W. Bl. 393 ; Rex v. Lee, 2 McNally on Evid.
634 ; Rex v. Hunt, 8 B. & Aid. 566 ; Rex v. Salter, 5 £sp. R. 225 ; Com-
monwealth v. Warren, 6 Mass. 74 ; The People v. Mather, 4 Wend. 259.
*
PART v.] CONSPIRAOT. 89
the act of all. It ia the same principle of identity with each
other, that governs in regard to the acts and admissions of
agents, when offered in evidence against their principals, and
of partners, as against the partnership, which has already been
considered.^ And here, also, as in those cases, the evidence
of v^hat was said and done by the other conspirators must be
limited to their acts and declarations made and done while
the conspiracy was pending, and in furtherance of the design ;
what was said or done by them before or afterwards not being
within the principle of admissibility.^
§ 95. Where the conspiracy was to do an act in itself un-
lawful, the means intended to be employed to effect the object
are not usually stated in the indictment ; nor is it necessary,
in such case, to state them ; but if the conspiracy was carried
out, to the full accomplishment of its object, it is necessary to
state what was done, and the persons who were thereby in-
jured or defrauded ; and if property was wrongfully obtained,
to state what and whose property it was. If, however, in the
former case, the means to be employed are set forth, it is
conceived that the prosecutor is bound to prove the allegation,
as he certainly ought to do, in the latter case. So, if the
object to be effected was not unlawful, but the means in-
tended to be employed were unlawful, it is obvious that, as
the criminality of the design consists in the illegality of the
means to be resorted to for its accomplishment, these means
must be described in the indictment, and proved at the
trial.8
§ 96. In the proof of this offence, as well as of others, the
1 See anUy Vol. 1, ^ 108 > 114 ; Rex v. Salter, 5 £sp. 126 ; Collins v. The
Commonwealth, 3 S. & R 220; The State v. Soper, 4 Shepl. 293; Aldrich
V. Wanen, Id. 465 ; Eegina v. Shellard, 9 C. & P. 277 ; Bex v. Stone, 6 T.
B. 528. And see Hardy's case, 24 Howell's St Tr. 199.
2 Ibid. ; Regina v. Mnrph/, 8 C. & P. 297 ; Regina v. Shellard, 9 C. & P.
277.
9 2 Rnss. on dim. €94, €95, n.; Regina v. Parker, 6 Jnr. 822 ; 3 Ad. &
£1. 892, N. S.
8*
90 LAW OP EVIDBNCB. [PAET V.
evidence will be confined to the particular allegaiions in the
indictment. Thus, if the indictment charges an intent to
defraud J. S. and others^ of their goods, and it appears at the
trial that J. S. was one of a commercial house, the evidence
must be confined to J. S. and his partners ; and evidence of
an intent to defraud any other persons is inadmissible.^ So,
if the alleged intent be to defraud A., evidence of an intent
to defraud the public generally, or whoever might be de-
frauded, will not support the allegation.^ But if the alleged
intent be, to accomplish several illegal objects, it will not be
necessary to prove all the particulars of the charge ; but it
will be sufficient if a conspiracy to effect any one of the ille-
gal objects, mentioned in the indictment, be proved.^ So, if
an intent be alleged to prevent the workmen of A. from con-
tinuing to work, it is proved by evidence of an intent to pre-
vent any from so continuing.* So, if the indictment be
against journeymen, for a conspiracy to prevent their em-
ployers from taking any apprentices^ it will be proved by evi-
dence of their having quitted their employment, with intent
to compel their employers to dismiss any person as an appren-
tice.^ And if the indictment contain allegations of several
illegal acts done, pursuant io the conspiracy, on a certain day^
evidence is admissible of such acts, done on different daysfi
§ 97. If two only be charged with a conspiracy, and one be
acquitted, the other must also be acquitted, though he be
guilty of doing the act charged ; for it will be no conspiracy,
however otherwise it may be criminal. And if one of seve-
ral defendants charged with this offence be acquitted, the
record of his acquittal is admissible in evidence, in favor of
1 Regina v. Steel, 1 Car. & Mar8h.'887.
3 Commonwealth v. Harley, 7 Met 506.
3 O'Connell v. Reg. 11 CI. & Fin. 165 ; 9 Jur. 25.
4 Rex V, Bykerdyke, 1 M. & Rob. 179.
5 Rex V, Fex^guson, 2 Stark. R. 489.
> Rex V, Levy, S Stark. R. 458. And see Rex v. Chamock, 4 St. Tr.
^70.
PART v.] CONSPIRACY. 91
another of the defendants, subsequently tried.^ But if two
be indicted, and one die before the trial ; or if three be indicted
and one be acquitted and the other die ; this is no defence
for the other.^ Nor is it exceptionable that one is indicted
alone, if the charge be of a conspiracy with other persons to
the jurors unknown.^
§ 98. The wife of one of several conspirators is not admis-
sible as a witness fof^the others ; the acquital of the others
being a ground for discharging her husband. Nor is she a
competent witness against him.^ And it is said that if a man
and woman are jointly indicted, for a conspiracy, proof that
they were husband and wife will generally be a complete de-
fence against the charge ; on the ground, that being regarded
as one person in law, the husband alone is responsible for
the act done. But indictments against the husband and wife,
for this offence, have been supported, where others were in-
dicted jointly with them.^ And if the conspiracy were con-
cocted before the marriage, their subsequent marriage is no
defence.^
§ 99. In some cases, the correspondence between the de-
1 Rex V. Tooke, 1 Bum's Just. 823, (ChittT's ed.) ; The State v. Tom,
2 Dev. 569.
s The People v. Olcott, 2 Johns. Cas. 301 ; Rex v. Einnersley, 1 Str. 193 ;
Rex f7. Niccolls, 2 Stra. 1227.
3 The People v. Mather, 4 Wend. 229, 265.
4 Rex V. Locker, 5 Esp. 107 ; Rex v, Serjeant, R7.& M. 852 ; Rex v.
Smith, 1 Mood. Cr. Cas. 289 ; 1 Hawk. P. C. eh. 41, ^ 13; Common-
wealth V. Easland, 1 Mass. 15: Pullen v. The People, 1 Doug. 48, (Mich.)
But see the State v. Anthony, 1 McCord, 285. See further, as to the com-
petency of ihe wife, anU^ YoL 1, § 335, 342, 407, and cases there cited.
5 Conunonwealth v. Wood, 7 Law Reporter, 58 ; Rex v. Locker, 5 Esp.
107.
> In Rex V. Taylor, I Leach, 37, 2 East, P. C. 1010, a servant woman
conspired with a man that he should personate her master, and marry her,
with intent fraudulently to raise a specious title to his property, and the mar-
riage was accordingly celebrated ; for which they were afterwards indicted
and convicted, and Uie conviction was held good.
92 LAW OF EYIDSNCE. [PABT Y.
fendants may be read in exculpation of one of them. Thus,
where two persons were indicted of a conspiracy to defiraad
a third person of his money, by inducing him to lend it to
one of them upon a false representation of his titles to certain
estates ; and the latter had left the country, and the other
defended himself on the ground that his co-defendant had
made the same representations to him, and led him to
believe them to be true, and his titles valid ; the correspond-
ence between them on this subject was held admissible, to
show that the party on trial was ih fact the dupe of the
other, and had acted in good faith.^
1^ Bex V. Whitehead, 1 C. & P. 67.
PABT v.] EHBKACBRT. 93
EMBRACERY.!
§ 100. The crime of embracery^ which is an offence against
public justice, consists in attempting to corrupt, instruct, or
inflnence a jury beforehand, or to incline them to favor one
side of a cause in preference to the other, by promises, per-
suasions, entreaties, letters, money, entertainments, and the
like ; or by any other mode except by the evidence adduced
at the trial, the arguments of counsel, and the instructions of
the Judge.2 The giving of money to another, to be distribu-
1 An indictment for Embracery may be in this form : —
The Jurors, (&c.) on their oath present, that A. B. of , on
at , in said county of , knowing that a certain jury of said
county of , was then duly returned, impanelled and sworn to try a cer-
tain issue in the , (describing the Court,) then held and in/ session ac-
cording to law, at aforesaid, in and for said county of , between
C. D. plsdntiff, and E. F. defendant, in a plea of ■ ; and then also
knowing that a trial was about to be had of the said issue in the Court last
aforesaid, then in session as aforesaid ; and unlawfully intending to hinder a
just and lawful trial olf said issue by the jury aforesaid returned, impanelled
and sworn as aforesaid to try the same ; on at , in the county
aforesaid, unlawfully, wickedly and unjustly, on behalf of the said £. F. the
defendant in said cause, did solicit and persuade one G. H., one of the Jurors
of said jury returned, impanelled and sworn as aforesaid for the trial of said
issue, to appear, attend and give his verdict in favor of the said E. F., the
defendant in said cause ; and then and there did utter to the said G. H., one
of said jurors, divers words and discourses by way of commendation of the
said E. F. and in disparagement of the said C. D. the plaintiff in said cause ;
and then and there unlawfully and corruptly did move and desire the said
G. H. to solicit and persuade the other jurors, returned, impanelled and
sworn to try the said issue, to give their verdict in favor of the said E.F. the
defendant in said cause, the said A. B. then and there well knowing the said
G. H. to be one of the jurors returned, impanelled and sworn as aforesaid ;
against the peace, &c.
> 4 Bl. Ckimm. 140; 1 Russ. on Grim. 182 ; 1 Inst 869, a. ; 1 Hawk. P.
C. ch. 85, § 1 ; Gibbs v, Dewey, 6 Cowen, 503.
94 LAW OF EVIDENCE. [PARTY.
ted among the jurors, and procuring one's self or others to be
returned as talesmen, in order to influence the jurors, are also
offences of this description.^ It may also be committed by
one of the jurors, by the above corrupt practices upon his fel-
lows. It is not material to this offence that any verdict be
rendered in the cause ; nor whether it be true or false, if ren-
dered.
§ 101. As this offence cannot be prosecuted under a gene-
ral charge, but the acts constituting the crime must be spe-
cifically set forth in the indictment, the proof on either side
will consist of evidence proving or disproving the commission
of the acts set forth as done by the defendant.
1 1 Hawk. F. C. ch. 85, $8; Bex v. Opie, 1 Saund. 801 ; 1 Ross, on
Crim. 182.
FABTL v.] FORGERY. 95
FORGERY.
§ 102. In all the United States this offence is punishable
by statute ; but it is conceived that these statutes do not take
away the character of the offence, as a crime or misdemeanor
at common law, but only provide additional punishments,
in the cases particularly enumerated in the statutes. By the
common law, every forgery is at least a misdemeanor, though
some, such as forgeries of royal charters, writs, &c were felo-
nies, and in some cases were punished as treasons.^
§ 103. It seems to have been the opinion of some of the
old writers on criminal law, that forgery could not be com-
mitted of a private writing, unless it was under seal ; but this
opinion has long since been discarded ; and it is now well
settled that forgery, in the sense of the common law, may be
defined as " the fraudulent making or alteration of a writing, to
t ThiB distinction is mentioned by Glanville, the earliest of the common
law authors, who wrote in the time of Hen. 2, about the year 1180. He ob-
serres that " The crime of fitlsifying) in a general sense, comprises under it
many particular species, as, for example, false charters, false measures, false
money, and others of a similar description." And he adds, '^ that if a person
should be conyicted of falsifying a charter, it becomes necessary to distin-
guish whether it be a royal or a private charter," because of the diversity of
punishments, which he mentions ; the former being punishable as treason,
and the latter by the loss of members only. Glanville, b. 14, c. 7. The
same distinction is alluded to by Bracton, lib. 3, c. 3, ^ 2, and c. 6, and in
the Minor, ch. 4, § 12. Falsifying the seal of one's lord was also punish-
able capitally, as treason ; but forgeries less heinous were punished by the
pillory, tumbril, or loss of members ; as appears from Britton, ch. 4, § 1 ;
Id. ch. 8,^4,5; Fleta, lib. l,c. 22; Id. lib. 2, c. 1 ; 3lnst 169; 2Ld.Raym.
1464. And see 2 Buss, on Crimes, 857, 368 ; Commonwealth v. Boynton,
2 Mass 77.
96 LAW OF BVIDBNCB. [PART V
the prejudice of another man's right" ^ It may be commit-
ted of any writing which, if genuine, would operate as the
foundation of another man's liability, or the evidence of his
right, such as, a letter of recommendation of a person as a
man of property and pecuniary responsibility ; ^ an order for
the delivery of goods ;^ a receipt;* or a railway pass;^ as
well as of a bill of exchange or other express contract. So,
it may be copimitted by the person's fraudulently writing his
own name, where he was not the party really meant, though
of the same name ; as, where one who was not the real payee
of a bill of exchange, but of the same name, indorsed his own
name upon it, with intent to give it currency as though it
were duly negotiated ; ^ or, where one claimed goods as the
real consignee, whose name was identical with his own, and
in that character signed over the permit for their landing and
delivery, to one who advanced him money thereon.^ So, if
one sign a name wholly fictitious, it is forgery.^ But if there
be two persons of the same name, but of different descrip-
tions and addresses, and a bill be directed to one, with his
proper address, and be accepted by the other with the addi-
tion of his own address, it is not forgery.^ Nor is this crime
committed, where the paper forged appears on its face to be
void ; as, where it was a promise to pay a certain sum in
work and labor, with no mention of value received in the
1 4 Bl. Comm. 247. And see Bex v. Ward, 2 Ld. Baym. 1461 ; 2 Rubb.
on Crimes. 318, 857, 358 ; Alison's Grim. Law of Scotland, p. 371.
9 The State v. Ames, 2 Greenl. 365 ; The State r. Smith, 8 Yerg. 151 ;
Commonwealth v. Chandler, Thach. Cr. Cas. 187.
3 The People v. Fitch, 1 Wend. 198; The State r. Holly, 2 Bay, 262.
4 The State v. Foster, S McCord, 442.
5 Begina v. Boult, 2 C. & K. 604.
6 Mead t7. Young, 4 T. B. 28. And see Rex v. Parkes, 2 Leach, Cr. Gas.
775 ; 2 East, P. G. 963.
7 The People v. Peacock, 6 Cowen, 72.
8 Bex V. BoUand, 1 Leach, Cr. Gas. 88 ; 3 East, P. C. 958 ; Rex v. Tay-
lor, 1 Leach, Cr. Cas. 215 ; 2 East, P. C. 690 ; Bex v. Marshall, B. & By.
75 ; 2 Buss, on Crimes, 331 -340.
9 Bex v. Webb, 3 Brod. k Ding. 328 ; Bayley on Bills, 605 ; Buss. & Ry.
405.
PART v.] lOROBRY. 97
note, and no averment of any in the indictment ; ^ or where
a will is forged, without the requisite number of witnesses.'
To constitute this offence, it is also essential that there bean
inU^ to defraud ; but it is not essential that any person be
actually defrauded, or that any act be done towards the
attainment of the fruits of the cri^ae, other than making or
altering the writing.^ Nor is it necessary that the party
should have had present in his mind an intention to defraud
a particular person, if the consequences of his act would ne-
cessarily or possibly be to defraud some person ; but there
must, at all events, be a possibility of some person being de-
frauded by the forgery.^ An intent to defraud the person,
who would be liable to discharge the obligation if genuine, is
to be inferred by the Jury, although, from the manner of exe-
cuting the forgery, or other circumstances, that person would
not be likely to be imposed upon, and although the prisoiier's
actual intent was to defraud whoever he might defraud.^
Uttering a forged paper, knowing it to be such, with intent
to defraud, is also an act of forgery, punishable by the com-
mon law;^ provided some fraud be actually perpetrated
by it.T
§ 104. The usual form of charging this offence in the indict-
ment, is, that the defendant *^ feloniously and falsely did
1 The People v. Shall, 9 Cowen, 778 ; Rex v. Jones, 1 Leach, Cr. Cas.
867.
S Rex V. Wall, 2 East, P. C. 953. And see 2 Buss, on Crimes, 844, 853 -
855.
3 Commonwealth v. Ladd, 15 Mass. 526 ; The State r. Washington, 1 Baf,
120 ; Rex r. Ward, 2 Ld. Raym. 1461, 1469. In Scotland the law is other-
wise ; the crime of forgery not being complete, nnless the foiged instrument
be uttered or put to use. Alison's Crim. Law of Scotland, p. 401, ch. 15,
^19.
4 Regina v. Marcus, 2 Car. & Kir. 858, 861.
5 Rex 0. Mazagora, Bayley on Bills, 613 ; K & Ry. 291.
0 Commonwealth v. Searle, 2 Binn. 832. As to what constitutes forgery,
see 2 Russ. on Crimes, 8 18- 86 1, where the subject is amply treated.
7 Regina v. Boult, 2 Car. & Kir. 604.
▼OL. III. 9
96 LAW OF BYIDISNCB. [PART. T.
make, forge, and connterfeit ^ the writing described, " with
intent one A. B. to derrand." But in the proof of ike charge
it is not necessary to show that the entire instrament is ficti-
tious. The allegation may be proved by evidence of a fraud-
ulent insertion, alteration or erasure in any material part of
a true writing, whereby another may be defrauded.^ And
where the evidence was, that the defendant, having a nurobor
of bank notes of the same bank and the same denomination,
took a strip perpendicularly out from a different part of each
note, with intent out of these parts to form an additional
note, the Court seemed inclined to think that the act, if com-
pleted, would amount to forgery.' So, in an indictment for
uttering a forged stamp, where the evidence was that the de-
fendant, having engraved a counterfeit stamp, in some parts
similar and in others dissimilar to the genuine stamp, cut out
the dissimilar part of the stamp, and united the dissevered
parts together, covering the deficiency by a waxen seal upon
it, the proof was held sufficient to support an indictment for
forging the stamp.' If the evidence be, that the act was done
by several persons, either by employing another to commit
the deed,^ or by each one separately performing a distinct
essential part of it, as, for example, if it be the forgery of a
bank note, one engraving the plate, and others writing the
signatures of the several officers, proof of the part performed
by the prisoner is sufficient to support an indictment against
him alone, as the sole forger of the instrument; though he
does not know who performed the other parts.^
1 1 Hale, P. C. 6S8 > 6S5 ; 2 Buss, on Critnes. 319 - 360 ; 8 Chitty, Crim.
Law, 103S ; Bex v. Atkinson, 7 C. & P. 669 ; Bex v. Teagae, B. & Bj. 88.
s Commonwealth v. Hayward, 10 Mass. 34.
8 Rex V. ( oUicott, 4 Taunt 800.
« Begina v. Maseau, 9 €. & P. 676.
8 Bex V. KiriLwood, 1 Mood. Cr. C. 804 ; Bex v. Dade, Id. 807 ; Bex v.
Bingley, R. & By. 446. If one part of a machine for coanterfeiting bank
notes is found in the prisoner's possession, evidence is admissible to show that
other parts were fimnd in the possession of other persons, with whom he was
connected in the general transaction. U. States v* Craig, 4 Wash. 788.
PART v.] FOEaBRT. 99
§ 105. It mnst appear that the instrument, on its face, bad
soch resemblance to the true instrument described, as to be
calculated to deceive persons of ordinary observation ; though
it might not deceive experts, or persons more than ordi-
narily acquainted with the subject.^ The want of such ap»
pearance on the face of the paper cannot be supplied by evi-
dence of any declarations or representations, made by the
party charged, at the time when he uttered and passed it as
true ; as, for example, if it be a fabricated bank jiote, but not
purporting to be signed ; ^ or a will, not having the number
of witnesses expressly required by statute, in order to its va-
lidity.^ But a mere literal mistake, such as a blunder in the
spelling of a name, will not make any difference; it being
sufficient to constitute the crime, if a signed writing, which
is forged, be intended to be taken as true, and might so be
taken by ordinary persons.^
§ 106. The proof that the ivritinff is false and caunterfeU
may be made by the evidence of any person acquainted with
the handwriting of the party whose autograph it is pretended
to be, or by comparing it with genuine writings or signatures
of the party, in the mode and under the limitations stated in
a preceding volume.^ And it is now well settled, that the
person whose signature or writing is said to be forged, is a
competent witness in a criminal trial, to prove the forgery ; *
1 2 Ross, on Crimes, 844; Bex v. Mclntosli, 2 East, P. C. 943 ; Id. 950 ;
Bex V. Elliot, 1 Leach, Cr. Gas. 176 ; U. States v. Morrow, 4 Wash. 738.
9 Bex V. Jones, 1 Dong. 800 ; 1 Leach, Cr. Cas. 204.
3 Rex V. Wall, 2 East, P. C. 958. And see Bex v. Moffat, 1 Leach, Cr.
Gas. 481.
4 3 Buss, on Crimes, 848-350 ; Bex v. Fitzgerald, 1 Leach, Cr. Cas. 20 ;
2 East, P. C. 958 ; Alison's Crim. Law of Scotland, cfa. 15, § 1, p. 871.
& For the proofs of handwriting, see ante^ Vol 1, § 576-581 ; Common-
wealth V. Smith, 6 S. & R. 568 ; The State v. Lawrence, Brayt. 78 ; The
State V. Carr, 5 N. Hamp. 867 ; Martin's case, 2 Lei|^ B. 745 ; Common-
wealth V. Carey, 2 Pick. 47 ; The State v. Ravelin, 1 Chipm. Yt R 295 ; The
State V. Candler, 8 Hawks, 393; Watson «. Cresap, 1 B. Monr. 195 ; Foul-
ker's case, 8 Bob. 836. Ya.
8 ^nTtfyYbl. 1,§414. Butintheexaminationofsnch witness, it is deemed
100 LAW 09 BYIDBNCB. [PART Y.
but he is not an indispensable witness, his testimony not be-
ing the best evidence which the nature of the case admits,
though it is as good as any, and might, in most cases, be
more satisfactory than any other.^ If the crime consist of
the prisoner's fraudulently writing his own acceptance on a
forged bill of exchange, evidence that, when the bill was
shown to him in order to ascertain whether it was a good
bill, he answered that it was very good, is admissible to the
Jury, and is sufficient ground for a verdict of conviction.^
§ 107. If the writing said to^ be forged is in existence, and
accessible, it must be produced ai the trial. But its absence,
if it be proved to be in the prisoner's possession, or to have
been destroyed by him, or otherwise destroyed without the
fault of the prosecutor, is no legal bar to proceeding in the
trial, though it may increase the difficulty of proving the crime.^
improper to conceal from him all the writing except the agnatnre ; and it is
held that he is not bound to answer whether the signature is in fact his, with^
out first seeing the entire paper. Commonwealth v. Whitney, Thach. Cr.
Cas. 588. In the examination of experts, however, and of other persona
testifying their opinionSf it is not unusual to conceal all but the signature.
The reason for this difference is obvious. The party, called to testify to a
fiM!t, upon his own knowledge, is entitied to all the means of arriving at cer-
tainty ; but the opinions of other persons as to the genuineness of a signature
ought to be founded on the signature alone, unbiased by any collateral cir-
cumstances.
1 2 Rnss. on Crim. S92 ; R^x v. Hughes, 2 East, P. C. 1003. In the
Scotch law, the oath of the party, whose signature is said to be forged, is
considered the best evidence of the forgery. Other evidence is estimated in
the following order : — 1, that of persons acquainted with his handwriting,
and who have seen him write ; — 2, that of persons who have corresponded
with him, without having seen him write ; — S, a comparatio literarttm with
his genuine writings ; — 4, that of experts, or persons accustomed to compare
the similitude of handwriting. See Alison's Crim. Law of Scotland, ch. 15,
^ 24, p. 412. But in England and the United States, in these different kinds
of evidence there is no legal preference of one before another, however dif>
ferentiy they may be valued by the Jury. See Ante, Vol. 1, § 84, 676-
581.
8 Rex V. Hevey, 1 Leach, Cr. Cas. 282.
3 Such is alto the law of Scotland. Alison's Crim. Law, p. 409, ch. 169
^22.
PABT y.] FOBaERY. 101
Thus, where the forged deed was in possession of the pri-
soner, who refused to produce it, it was held that the Grand
Jary might receive secondary evidence of its contents, and, if
thereupon satisfied of the fact, might return a true bill ; and
that, on the trial of the indictment, the like evidence was ad-
missible.^ But before secondary evidence can be received of
the contents of the forged paper, in the prisoner's possessioui
due notice must be given to the prisoner to produce t/, unless it
clearly appears that he has destroyed it^
§ 108. The writing, when produced or proved, must agree
in all essential respects with the description of it in the indict-
ment ; a material variance^ as we have heretofore seen, being
fatal.8
§ 109. If the prisoner, on uttering a forged note made pay-
able to himself, represent the maker as being at a particular
place, and engaged in a particular business, evidence that it
is not that person's note is sufficient primd fade proof of the
forgery ; for the prisoner, being the payee of the note, must
have known who was the maker. And if it should appear
that there is another person of the same name, but engaged
1 Rex V, Hunter, 3 C. & P. 591 ; 4 C. & P. 128, S. C. In the latter caw,
it was held that if the paper was in the hands of the prisoner's counsel or at-
torney, it was the duty of the latter not to produce it, but to deliyer it up to
his client See also Rex v. Dixon, 3 Burr. 1687 ; Anon. S Mass« 370.
s 2 Russ. on Crimes, 743 - 745, (3d ed.) ; Rex v. Haworth, 4 C. &. P. 254 ;
The State v. Potts, 4 Halst. 26 ; U. States v. Britton, 2 Mason, 464, 468;
Bex V. Spragge, cited 14 East, 276 ; SeeU. S. o. Doebler, lBaldw.519, 522,
conJtra. As to the time and manner of giving notice, and when notice is
necessary, see antty Vol. 1, ^ 560 - 563. If the £stct of the destruction of the
instrument is not clearly proved, and is denied by the prisoner, notice to
produce it will not be dispensed with. Doe v. Morris, 3 Ad. & £1. 46.
3 See^n^e, VoL 1, ^ 63 - 70 ; The State v. Handy, 2 Applet 81. Thua,
if the indictment chai^ the forgery of " a certain toarront and order for the
payment of money," it is not supported by proof of the fox^ry of a warrant
for the payment of money, which is not also an order, Bef^a v. Williams,
3 Car. & Kir, 51. And see Rex v. Crowther, 6 C. & P. 316 \ Beginav. Gil-
Christ, 1 Car. & Marshm* 224.
a
102 LAW OP BYIDBNCB. [PABT V.
in a different business, it will not be necessary for the prose-
cutor to show that it was not this person's note ; it being in-
cumbent on the prisoner to prove that it is the genuine note
of such other person.^ So, where the prisoner obtained
money from a person for a cheque drawn by G. A. upon a
certain banking house, and it appeared that no person of that
name kept an account or had funds or credit in that house,
this was held sufficient primd facie evidence that 6. A. was
a fictitious person, until the prisoner should produce him, or
give other sufficient explanatory proof to fhe contrary.*
Where inquiries are to be made in regard to the residence or
existence of any supposed pa/ty to a forged instrument, it is
proper and usual to call the police officers, penny-postman,
or other persons well acquainted with the place and its inha-
bitants ; but if inquiries have been made in the place by a
stranger, his testimony as to the fact and its results is admis-
sible to the Jary, though it may not be satisfactory proof of
the non-existence of the person in question.^ If the forgery
be by executing an instrument in a fictitious name, for the
purpose of defrauding, the prosecutor must show that the fic-
titious name was assumed for the purpose of defrauding in
that particular instance ; it will not be sufficient to prove that
it was assumed for general purposes of concealment and
fraud, unless it appears that the particular forgery in question
was part of the general purpose.^ And if there be proof of
the prisoner's real name, the burden is on him to pi^ove, that
he used the assumed name before the time when he contem-
plated the particular fraud.^
110. The allegation oi uttering and publishing i& proved by
evidence that the prisoner offered to pass the instrument to
^ Rex r. Hampton, By. & M. Cr. Cas. 255.
3 Rex V. Backler, 5 C. & P. 118. And see Rex v. Biannan, 6 C. & P.
'326.
3 Rex V. King, 5 C.& P. 12S.
4 Bex V. Bontien, R. & By. S60.
5 Bex V. Peacock, B. & By. 278.
PART v.] FOROEBT. 103
another person, declaring or asserting, directly or indirectly,
by words or actions, that it was good.^ The act o{ passing is
not complete, until the instrument is received by the person
to whom it is offered.^ If the instrument is uttered through
the medium of an innocent agent, t])is is proof of an uttering
by the employer ; ^ and this principle seems equally applicable
to the case of uttering by means of a guilty agent.^ If the
instrument be delivered condUionally^ as, for example, to stand
as collateral security, if, upon inquiry, it be found satisfactory,
this is sufficient proof of uttering it.^ But if it be given as a
specimen of the forger's skill; ^ or be exhibited with intent to
raise a false belief of the exhibitor's property or credit, though
it be afterwards left with the other party, sealed in an envelope,
to be kept safely, as too valuable to be carried about the per-
son ; this is not sufficient evidence to support the allegation
of uttering.^ The offence of uttering forged bank notes is
committed, although the person to whom the notes were de-
livered is the agent of the bank, employed for the purpose of
detecting persons guilty of forging its notes, but represent-
ing himself to the prisoner as a purchaser of such spurious
paper.®
§ 111. In proof of the criminal uttering of a forged instru-
ment, it is essential to prove guitty knowledge on the part of
the utterer. And to show this act, evidence is admissible
that he had about the same time uttered or attempted to ut-
1 Commonwealth v* Searle, 2 Binn. 339, per Tilghman, C. J. And see U.
States V. Mitchell, 1 Baldw. 367 ; Rex v. Shuckard, R. & Ry. 200.
« Ibid.
3 Commonwealth v. ECU, 11 Mass. 136 ; Foster, C. L. Disc. 3, ch. 1, sec.
3, p. 349.
4 Rex v. Giles, Ry. k M. Cr. Cas. 166 ; Rex v. Palmer, 1 New Rep. 96 ;
U. States V, Morrow, 4 Wash. 733.
6 Regina v. Cooke, 8 C. & F. 582.
• Rex V. Harris, 7 C. & F. 428.
7 Rex V. Shnckard, R. & Ry. 200 ; Bayley on Bills, 609.
3 Rex V. Holden, 2 Taunt 334 ; R. & Ry. 154 ; 2 Leach, Cr. Cas. 1019,
8. C.
104 LAW OF BVIDBNCB. [PABT V.
ter other forged instruments, of the same description ; ^ or,
that he had such others, or instruments for manufacturing
them, in his possession ;^ or, that he pointed out the place
where such others were by him. concealed;^ or, that at other
ntterings of the same sort of papers, he assumed different
names ; ^ or, that he uttered the paper in question under false
representations made at the time, or the like.^ But where
such other instruments, said to be forged, are offered in proof
of guilty knowledge, there must be strict proof that they are
forgeries.^ And when evidence is give]> of other utterings,
in order to show guilty knowledge in the principal case, the
evidence must be confined to the fact of the prisoner's hav-
ing utiered such forged instruments, and to his conduct at the
time of uttering them ; it being improper to give evidence of
what he said or did at any other time, collateral to such
other utterings, as the prisoner could not be prepared to meet
I Rex t;. Wylie, 1 New Rep. 92 ; Rex v. Ball, 1 Campb. 824 ; Supra, ^ 15 ;
U. States V. Roadenbush, 1 Baldw. 614; U. States v. Doebler, Id. 519; The
State V. Antonio, Const. Rep. S. Car. 776. See Alison's Crim. Law of Scot-
land, ch. 15, ^ 28, p. 419-422, where the circumstances evincing guilty
knowledge are more amply detailed. See also, Regina v, Oddy, 5 Cox, C.
C. 210.
3 Rex V. Hough, R. & Ry. 120 ; Bajley on Bills, 617. Proof of the pos-
session, at the same time, of other forged instruments, of a different descrip-
tion, has been admitted. Sunderland's case, 1 Lew. 102 ; Eirkwood's case,
Id. 103 ; Martin's case. Id. 104 ; Rex o. Crocker, 2 New Rep. 87, 95 ; Hess
V. The State, 5 Ham. 5 ; Hendrick's case, 5 Leigh, 707 ; The State v. McAl-
lister, 11 Shepl. 1S9.
3 Rex V, Rowley, R. & Ry. 110; Bayley on Bills, 618.
« Rex V. Millard, R. & Ry. 245; Bayley on Bills, 619 ; Rex v. Ward,
Ibid.
5 Rex V. Sheppard, R. & Ry. 169; 1 Leach, Cr. Cas. 226 ; 2 East, P. C.
697. And see The State v. Smith, 5 Day, 175. On the trial of two penons
for the joint possession of counterfeit bank notes with intent to utter them, it
is competent to show that one of them, at another time and place, had other
counterfeit notes in his possession, in order to prove his gidlty knowledge.
Commonwealth v, Woodbury, Thach. Cr. Cas. 47.
6 Rex V. Forbes, 7 C. & P. 224. And see Rex v, lOaxd, supra,
7 Phillips's case, 1 Lew. 105 ; The State v. Van Hereten, 2 Penn. 672 ;
And see Ante, Vol. 1, § 62, 53 ; Rex v. Forbes, 7 C. & P. 224 ; Regina tr.
PART V.J FORGBRT. 105
§ 112. To show the place where the forgery was committed^
it is competent to prove that the instrument was found in the
prisoner's possession in such place, and that he resided there ;
of the sufficiency of which the Jury will judge.^ And if th©
instrument bears date at a certain places and it is proved that
the prisoner was there at that time, this is sufficient evidence
that it was made at that place.^ But where a forged instru-
ment was found in the prisoner's possession at W., where he
then resided, but it bore date at S., at a previous time, when
he dwelt in the latter place, this was held not to be sufficient
evidence of the commission of the offence in W.^ If the in-
strument is not dated at any place, and the fact of forgery by
the prisoner is proved, and that he uttered or attempted to
utter it at the place named in the indictment, this is evidence
that it was forged at that place.^ If a letter, containing a
forged instrument, be put into the post-office, this is not evi-
dence of an uttering at that place ; but the venue must be
laid in the place where the letter was received.^
Cooke, 8 C. & P. 586 ; Regina v, BuUer, 2 C. & K. 321. If such other ulr
terings are the subject of distinct indictments, the evidence will not, on that
account, be rejected. Begina v. Aston, 2 Russ. on Crimes, 406, 407, per An-
derson, B. ; Regina v. Lewis, Archb. Cr. PL 866, per Ld. Denman. In Rex v.
T. Smith, 2 C. & P. 633, such evidence was rejected by Vaughan, B. Bat
in Rex v. F. Smith, 4 C. & P. 411, Gaselee, J., after consulting the Ld. Ch.
Baron, and referring to Russell, as above cited, was disposed to admit it See
ace. The State v, Twitly, 2 Hawks, 248 ; Commonwealth v. Percival, Thach.
Cr. Cas. 293.
I Rex V, Crocker, 2 New Rep. 87 ; R. & Ry. 97 ; Spencer^s case, 2 Leigh,
R 751.
> The State v. Jones, 1 McMullan, 286.
3 Rex u. Crocker, supra.
4 Bland v. The People, 8 Scam. 864.
^ The People t;. Rathbun, 21 Wend. 509, 527-541, where all the cases,
English and American, on this point, are collected and fully reviewed. The
principle, on which this point was decided, is, that the offence charged was a
felony, to which the act of consummation was indispensably necessary ; the
aUempt to commit a felony being of itself, and without consummation, only
a misdemeanor. But where an act of forgery amounts only to a misdemeanor,
as the attempt to commit it is of itself a misdemeanor, it is conceived that
proof of putting a letter, containing the false instrument, into^the post-office,
would be sufficient to support a charge of committing the crime at that place.
See Perkins's case, Lew. Cr. Cas. 150 ; Supra^ ^ 2.
106
LAW 07 BVIDBNCB.
[PABXY.
§ 113. If the indictment be for uttering a forged bank note,
parol evidence is admissible to show that the person, whose
name appears on the note as president, is in fact the presi-
dent of that bank ; ^ but it is not necessary to prove the exist*
ence of the bank, unless it be described in the indictment as
a bank duly incorporated, or an intent to defraud that bank
be alleged.^
1 The State v. Smith, 5 Day, 175.
9 Commonwealth v. Smith, 6 S. & B. 568; The People v. Feabody.
25 Wend. 473.
PABTY.] HOMIOIBB. 107
HOMICIDE.
§ 114. Homicide is ^ the killing of any htman being J^ It is
of three kinds : — 1. justifiable ; — 2. excusable ; — 3. feloni'
cus.
§ 115. 1. Justifiable homicide is that which is committed
either, Ist, by unavoidable necessity^ without any wiD, inten-
tion or desire, or any inadvertence or negligence in the party
killing, and therefore without blame ; such as, by an officer,
executing a criminal, pursuant to the death-warrant, and in ^
strict conformity to the law, in every particular ; — or, 2dly,
for the advancement of public justice ; as, where an officer, in
the due execution of his office, kills a person who assaults
and resists him ; or, where a private person or officer attempts
to arrest a man charged with felony and is resisted, and in
the endeavor to take him, kills him ; or, if a felon flee from
justice, and in the pursuit he be killed, where he cannot oth-
erwise be taken ; or, if there be a riot, or a rebellious assembly,
and the officers or their assistants, in dispersing the mob, kill
some of them, where the riot cannot otherwise be suppressed ;
or, if prisoners, in gaol or going to gaol, assault or resist the
officers, while in the necessary discharge of their duty, and
the officers or their aids, in repelling force by force, kill the
party resisting ; — or, 3dly, for the prevention of any atrocious
crimpy attempted to be committed by force ; such as, murder,
robbery, house-breaking in the night time, rape, mayhem, or
any other act of felony against the person.^ But in such
1 4 BL Comm. 178-180 ; 1 Buss. on Crimes, 665-670 ; Wharton's Amer.
Crim. Law, 298-408. The Boman Civil Law recognized the same princi-
ples. Qui latxonem (inaidialorem) occiderit, non tenetor, ntique si aliter
108 ^ LAW OF BYIBBNCB. [PART Y.
cases, the attempt mast be not merely saspected, but appa-
rent, the danger must be imminent, and the opposing force
or resistance necessary to avert the danger or defeat the at-
tempt.^
§ 116. 2. Excusable homicide is that which is committed
either, 1st, by misadventure; (per infortunium;) which is
where one, doing a lawful act, unfortunately kills another ; as,
if he be at work with a hatchet, and the head thereof flies off
and kills a by-stander ; or if a parent is correcting his child,
or a master his apprentice or scholar, the bounds of modera-
tion not being exceeded, either in the manner, the instrument,
or the quantity of punishment ; or if an ofiicer is punishing a
criniinal, within the like bounds of moderation, or within the
* limits of the law, and in either of these cases death ensues : ^
or, 2dly, in self-defence ; (se defendendo ;) which is where one
^. is assaulted, upon a sudden affray, and in the defence of his
person, where certain and immediate sufiering would be the
consequence of waiting for the assistance of the law, and
there Was no other probable means of escape, be kills the as-
sailant To reduce homicide in self-defence to this degree,
it must be shown that the slayer was closely pressed by the
other party, and retreated as far as he conveniently or safely
could, in good faith, with the honest intent to avoid the vio-
lence of the assault The Jury must be satisfied that, unless
he had killed the assailant, he was in imminent and manifest
danger either of losing his own life, or of suffering enormous
periculum effugere non potest Inst. lib. 4, tit 3, § 2. Furem noctamiim,
01 quia occiderit, ita demum impun^ feret, si parcere ei sine periculo suo non
potuit. Dig. lib. 48, tit 8, 1. 9. Qui stuprum sibi vel suis per vim inferen-
tem occidit, dimittendum. Dig. lib. 48, tit 8, 1. 1, ^ 4. Si quis percussorem
ad se venientem gladio repulerit, non nt homicida tenetnr ; quia defensor
propriae salutis in nuUo peccasse videtuT. Cod. lib. 9, tit 16, 1. 3. In tiie
cases mentioned in the text, if the homicide is committed with undue preci-
pitancy, or the unjustifiable use of a deadly weapon, the slayer will be cul-
pable. See Alison's Crim. Law of Scotland, p. 100 ; Id. p. 1S2- 189.
1 United States v. Wiltberger, 8 Wash. 515. And see The State v. Ruth-
erford, 1 Hawks, 457 ; The State v. Boane, 9 Dev. 58.
s 4 Bl. Comm. 182 ; 1 Buss, on Crimes, 657-660.
'
PART v.] HOHIOIDB. 109
bodily hann.^ This latter kind of homicide is sometimes
called chance-mecUepy or chaud^medleyj words of nearly the
same import; and closely borders upon manslaughter. In
both cases it is supposed that passion has kindled on each
side, and that blows have' passed between the parties ; but
the difference lies in this, — that in manslaughter, it must
appear, either that the parties were actually in mutual com-
bat when the mortal stroke was given, or, that the slayer was
not at that time in imminent danger of death ; but that in
homicide excusable by self-defence, it must appear, either
that the slayer had not begun to fight, or that, having begun,
he endeavored to decline any further struggle, and afterwards,
being closely pressed by his antagonist, he killed him to avoid
his own destruction.^ Under this excuse of self-defence, the
principal civil and natural relations are comprehended ; and,
therefore, a master and servant, parent and child, and hus-
band and wife, killing an assailant, in the necessary defence
of each other respectively, are excused.^
§ 117. Homicide is also excusable, when unavoidably com-
mitted in defence of the possession of one^s dweUing-housey
against a trespasser who, having entered, cannot be put out
otherwise than by force ; and no more force is used and no
other instrument or mode is employed, than is necessary and
proper for that purpose.^ So, if in a common calamity, two
persons are reduced to the dire alternative, that one or the
1 4 Bl. Comm. 182 ; 1 Buss, on Crimes, 660, 661 ; Whart. Am. Crim. Law,
885-897. Qui, cmn aliter tacri se non possunt, damni cnlpam dederint,
innoxii sunt. Vim enim vi defendere, omnes leges omniaque jura permit-
tent Dig. lib. 9, tit 2, 1. 45, ^ 4. Is, qui aggressorem yel qnemcunquo
alinm in dubio Titao discrimine constitntus [Occident, nuUam ob id £ictam
caUimniam metuere debet Cod. lib. 9, tit 16, 1. 2.
> 4 BL Comm. 184 ; 1 Buss, on dimes, 661 ; The Stete v. JEGH, 4 Dey.
& Batt 491.
8 4 Bl. Comm. 186 ; 1 Hale, P. C. 448.
4 1 Hale, P. C. 485, 486; 1 Buss, on Crimes, 662, 664; cites Meade's
case, 1 Lew. Cr. Cas. 184 ; Child's case, 2 Lew. Cr. Cas. S14 ; Hinchcliff's
case, 1 Lew. 161.
VOL. nL 10
110 LAW 09 BYIDENCB. [PABT Y.
other or both must certainly perish, as, where two ship-
wrecked persons are on one plank, which will not hold them
both, and one thrusts the other from it, so that he is drowned,
the survivor is excused.^
§ 118. The disiinctionhetween justifiable and excusable homi-
cide was formerly important, inasmuch as in the latter case, the
law presumed that the slayer was not wholly free from blame ;
and therefore he was punished by forfeiture of goods, at least
But in the United States, this rule is not known ever to have
been recognized ; it having been the uniform practice here,
as it now is in England, where the homicide does not rise to
the degree of manslaughter, to direct an acquittal.^
§ 119. 3. Felonious hoicicide is of two kinds, namely, man-
slaughter and murder; the difference between which consists
•principally in this, that in the latter these is the ingredient of
malice, while in the former there is none ; or, as Bla€kstone
expresses it, manslaughter, when voluntary, arises from the
sudden heat of the passions, murder, from the wickedness of
the heart Manslaughter is therefore defined to be << the im-
latoful killing of another^ without malice^ either express or
implied!^ ^ And hence every indictment for wilful homicide,
in which the allegation of malice is omitted, is an indictment
for manslaughter only. So, on the trial of an indictment for
murder, if there is no sufficient proof of malice aforethought,
and the act of killing being proved, is not justified nor ex-
cused, the Jury must return a verdict for manslaughter. As
this offence is supposed to have been committed without
malice, so also it must have been without premeditation ; and
therefore there can be no accessaries before the fact Thus,
1 4 Bl. Comm. 186. And see Holmes's case, where several passengeiB
were thrown over from the overloaded long-boat of a foundered ship, to save
the lives of the others ; in which this doctrine was very fully and ably dis-
cussed. Wharton's Am. Crim. Law, p. 397.
9 4 Bl. Comm. 188 ; 2 Inst. 148, 315.
3 4 Bl. Comm. 191 ; 1 Hale, P. C. 466.
PASS v.] HOMICIDE. Ill
it is said that, if A. is charged with murder, and B. is charged
as accessary before the fact, (and not as present, aiding and
abetting, for such are principals,) and A. is found guilty of
manslaughter only, B. must be altogether acquitted.^ But if
A. is charged with murder, and B. is charged with receiving,
harboring, and assisting him, well knowing that he had com-
mitted the murder ; and A. be found guilty of manslaughter
only ; B. may be foand guilty of being accessary after the
foct to the latter offence.^
^ 120. The indictment for manslaughter is in the same form
with an indictment for murder, hereafter to be stated, except
that the allegation, " of his malice aforethought," and the
word <* murder," are omitted. The substance of the charge,
therefore, so far a& the proof is concerned, is, that the prisoner,
(describing him,) at such a time and place, feloniously and
wilfully assaulted the deceased, (describing him,) and killed
him iflHhe particular manner therein set forth. The allega-
tions of diabolical motive in the slayer, and that the deceased
was in the peace of God and the State, and that the offence
was committed with force and arms, though usually inserted,
are superfluous, and not necessary to be proved.^ And the
time of any homicide is not material to be precisely proved,
if it appear, both on the face of the indictment, and also by
the evidence, that the death happened within a year and a
day after the stroke was given, or the poison administered, or
other wrongful act done, which is supposed to have occa-
sioned the death. The day is added to the year, in order to
put the completion of a full year beyond all doubt, which
might arise from the mode of computation by including or
excluding the day of the stroke or infliction ; and because, as
Lord Coke has remarked, in case of life the rule of law ought
to be certain ; and if the death did not take place within the
1 1 Hale, P. C. 450 ; BUihe's case, 4 Bep. 48, b. pi. 9.
S Bex V. Greenacre, 8 C. & P. 85.
3 Heydon'8 case, 4 Bep. 41, pL 5 ; 3 Chitty, Crim. Law, 751, n. ; 2 Hale,
P. C. 186, 187.
112 LAW OF BYIDENOS. [PABT T.
year and day, the law draws the conclusion that the injury
received was not the cause of the death ; and neither the
Court nor Jury can draw a contrary one.^
§ 121. Where the crime of manslaughter only is chai^d,
the proof of the offence^ on the part of the prosecution, is by
proving the fact of killing, with such circumstances as
show criminal culpability on the part of the prisoner. And
the defence consists either in a denial of the principal fact, or
in a denial of all culpability, supported by the proof of cir-
cumstances, reducing the fact of killing to the degree of
excusable or justifiable homicide. But the distinction be-
tween murder and manslaughter most frequently arises where
the indictment is for murder, and the evidence on the part of
the prisoner is directed to reducing the act to the degree of
manslaughter only. The cases on this subject are of two
classes, the offence being either i)ohmtarpy or involuntary.
Voluntary manslaughter is where one kills another in the heat
of blood ; 'and this usually arises from fightif^^ or from pro^
vocation. In the former case^ in order to reduce the crime
from murder to manslaughter, it must be shown that the
fighting was not preconcerted, and that there was not suffi*
cient time for the passion to subside ; for in the case of a
deliberate fight, such as a duel, the slayer and his second are
murderers.^ And though there were not time for passion
to subside, yet if the case be attended with such circumstan*
ces as indicate malice in the slayer, he will be guilty of mur-
der. Thus, if the slayer provide himself with a deadly wea-
pon beforehand, in anticipation of the fight, and not for mere
defence of his person against a felonious assault ; ^ or if he
take an undue advantage of the other in the fight ;^ or if,
though he were in the heat of passion, he should designedly
select out of several weapons equally at hand, that which
1 3 Inst 68 ; The State v. Orrell, 1 Dev. 139, 141 ; 2 Hale, P. C. 179.
9 1 Ru88. on Crimes, 531 ; 1 Hale, P. C. 452, 453.
3 Begina v. Smith, 8 C. & P. 160; Bex v. Anderson, I Russ. on Crimes,
581 ; Rex v. Whiteley, 1 Lew. Cr. Cas. 178.
4 Bex V. Kessel, 1 C. & P. 487 ; Foster, 295.
PA&T Y.] HOMIOIBB. 113
alone is deadly, it is inturder.^ Where, in a fight, the victor
had followed up his advantage with great fury, giving the
^mortal blows after the other party was down, and had be*
come unable to resist, it was still held to be only man-
slaughter.^
§ 122. Where homicide is committed upon provocation^ it
must appear that the provocation was considerable, and not
slight only, in order to reduce the offence to manslaughter ;
and for this purpose the proof of reproachful wordsj how
grievous soever, or of actions or gestures expressive of con-
tempt or reproach, without an assault, actual or menaced, on
the person, will not be sufficient, if a deadly weapon be used.
But if the fatal stroke were given by the hand only, or with
a small stick, or other instrument not likely to kill, a less pro-
vocation will suffice to reduce the offence to manslaughter.^
Thus, the killing has been held to be only manslaughter,
though a deadly weapon was used, where the provocation
was by pulling the nose ; ^ purposely jostling the slayer aside
in the highway ; ^ or other actual battery.^ So, where a hus-
band caught a man in the act of adultery with his wife, and
instantly killed either or both of them.'' And where a boy,
1 1 Leach, 151 ; 1 East, P. C. S45 ; Foster, 294, 295 ; Bex v. Anderson,
supra ; Rex v. Whiteley, supra ; 1 Ross, on Crimes, 531.
s Eex r. Aves, Russ. & Ry. 166. But it has been thought that where the
manner of the fight was deadly, as, ''an up-and-down fight," if death ensued,
it would be murder. Rex v. Thorpe, 1 Lew. Cr. Cas. 171.
3 Foster, 390, 391 ; Infra, ^124; United States v. Wiltbeiger, 3 Wash.
515.
4 J. Kely. 135.
5 Lanure's case, 1 Hale, P. C. 455. If the provocation by a blow be too
sKght to reduce the killing to manslaughter, yet it has been thought suffi-
cient, if accompanied by words and gestures calculated to produce a degree
of exasperation equal to what would be caused by a violent blow. Regina v.
Sherwood, 1 Car. & Kir. 556, per Pollock, C. B.
9 Rex o. Stedman, Foster, 292.
^ Madd/s case, 1 Vent 158 ; T. Raym. 212 ; S. C. nom. Manning's case,
-where the Court is reported to have said that " there could not be a greater
provocation than this." J. Kely. 187. See also, the People v. Ryan,
S Wheeler, C. Cas. 54 ; R^ina v. Fisher, 8 C. & P. 183; Peanrn's caMr
10*
114 LAW OF WTOVSCE. [PART T.
being beaten by another boy, ran home to his father, who
seeing him very bloody, and hearing his cries, instantly took
a rod or small stick, and running to the field three quarters of ,
a mile distant, struck the aggressor on the head, of which he
died ; this was ruled manslaughter only, because it was done
upon provocation by the injury to his son, and in sudden heat
and passion.^
§ 123. Another kind of provocation sometimes arises in the
ezectUion of process. For though the killing of an officer of
justice, while in the regular execution of his duty, knowing
him to be an officer, and with intent to resist him in such ex-
ercise of duty, is murder ; the law in that case implying ma-
lice ; yet where the process is defective or illegal, or is exe-
cuted in an illegal manner, the killing is only manslaughteri
unless circumstances appear, to show express malice; and
then it is murder.^ Thus, the killing will be reduced to man-
2 Lewin, 216 ; Alison's Crim. Law of Scotland, p. 113 ; Re^na v. Kellj, 2 C.
& K 814.
1 Bojlefa case, Godb. 183 ; Gro. Jac. 996 ; IS Bep. 87 ; 1 Hale, P. C.
458 ; Foster, 294, 295, S. C. Coke calls the instrument used in this case, a
cudgeL Godbolt says it was a rod. Ld. Hale terms it a staff, Croke tenns
it a little cudgel; and Ld. Raymond observes, that it was a weapon ^ from
which no such fatal eyent could reasonably be expected." 2 Ld. Raym. 1498.
Whatever it may have been, all agree that it was not a lethal or deadly wea-
pon, from the use of which, malice might have been presumed ; and there-
fore the killing w^ but manslaughter, in the heat of passion, and upon great
provocation.
> Foster, 811 ; 1 Russ. on Crimes, 617; Commonwealth v. Drew, 4 Mass.
895, 896. If a felony has actually been committed, any man, upon fresh
pursuit, or hue and cry, may arrest the felon, without warrant. But suspi-
cion of the felony will not be enough to justify the arrest. The felony must
have been committed in &ct But if a felony be committed^ and one is upon
reasonable ground suspected of being thefelony and thereupon is freshly pur-
sued by a private individual without warrant, and is killed in the attempt to
arrest him, it is only manslaughter. An officery however, having reasonable
ground to su^ect that a felony has been committed^ may arrest and detain the
supposed felon ; which a private citizen cannot lawfully do. Beckwith o.
Philby, 6 B. & C. 635, per Ld. Tenterden ; 2 Hale, P. C. 76 - 80 ; 1 Russ.
on Crimes, 593-595 ; Carey's case, 4 Law Rep. 169, 173, N. S.
PABT v.] HOHIOIDB. 115
slaughter, if it be shown in evidence that it was done in the
act of protecting the slayer against an arrest by an officer
acting beyond the limits of his precinct ; ^ or, by an assistant,
not in the presence of the officer;^ or, by virtue of a warrant
essentially defective in describing either the person accused,
or the offence ; ^ or, where the party had no notice, either ex-
pressly, or from the circumstances of the case, that a lawful
arrest was intended ; but, on the contrary, honestly believed
that his liberty was assailed without any pretence of legal
authority;^ or, where the arrest attempted, though for a
felony, was not only without warrant, but without hue and
cry, or fresh pursuit ; or being for a misdemeanor only, was
not m?^de ftagranie delicto;^ or, where the party was on any
other ground, not legally liable to be arrested or imprisoned.^
So, if the arrest, though the party were legally liable, was
made in violation of law, as, by breaking open the outer door
or window of the party's dwelling-house, on civil process ; for
such process does not justify the breaking of the dwelling-
house, to make an original arrest ; or, by breaking the outer
door or window, on criminal process, without previous notice
given of his business, with demand of admission, or some-
tiling equivalent thereto, and a refusal^
1 1 Hale, P. C. 459 ; Rex v. Mead, 3 Stark. R. 205.
s Rex V. Patience, 7 C. & P. 795 ; Rex v, Whalley, Id. 345.
3 Rex V. Hood, Ry. & M. 381 ; Foster, 313; 1 Hale, P. C. 457 ; Hoje v.
Bush, 1 Man. & Grang. 775.
^ 1 Hale, P. C. 470. And see Buckner's case, Sty. 467 ; J. Eely. 136 ;
1 Russ. on Crimes, 633 ; Rex v. Withers, 1 East, P. C. 283 ; Rex v. How-
arth, Ry. & M. 307.
6 1 Russ. on Crimes, 593-595, 598; 1 Hale, P. C. 463 ; Rex v. Cur-
Tan, Ry. & M. 133 ; Rex v. Curran, S C. & P. 397 ; Commonwealth v. Carey,
4 Law Rep. 170, N. S.
^ Commonwealth v. Drew, 4 Mass. 895, 396 ; United States v. Trayers,
8 Wheeler, Cr. Cas. 495, 509 ; Rex v. Corbett, 4 Law Rep. 369 ; Rex v.
Thompson, Ry. & M. 80 ; Rex v. Gillow, Id. 85 ; 1 Lewin, 57 ; Regina v.
Phelps, 1 Car. & Marsh. 180, 186.
7 Foster, 820. Whether a preidous demand be necessary in cases of
felony, qucare; and see Lannock v. Brown, 2 B. & Aid. 592.
116 LAW OF BVIDENCE. [PAKT Y.
§ 124. Bat the pt(Ktf of provocation^ in order to reduce the
act of killing to the degree ofrmanfilaughter, mast, as we have
seen, be by evidence of somelhinff, more tkan words or ge$*
tures; for these, however opprobrious and irritating, are not
sufficient in law to free the slayer from the guilt of murder, if
the person were killed with a deadly weapon, or there be a
manifest intent to do him some great bodily harm. But if,
upon provocation by words or gestures only, the party, in the
heat of passion, intended merely to chastise the insolence of
the other, by a box on the ear, or a stroke with a small stick
or other weapon not likely to kill, and death accidentally en-
sued, this would be but manslaughter.^ And it seems that
if, upon provocation by words only, the party provoked should
strike the other a blow not mortal, which is returned by the
other, and a fight thereupon should ensue, in which the party
first provoked should kill the other, this also would be but
manslaughter.^ So, if the words were words of menace of
bodily harm, accompanied by some outward act showing
an intent immediately to do the menaced harm, this would
be a sufficient provocation to reduce the killing to man-
slaughter.^
§ 125. In all these cases of voluntary homicide, upon pro-
vocation, and in the heat of blood, it must appear that the
fatal stroke was given before the passion^ originally raised by
the provocation, had time to subside^ or the blood to cool; for
it is only to human frailty that the law allows this indulgence,
and not to settled malignity of heart. K, therefore, after the
provocation, however great it may have been, there were time
for passion to subside and for reason to resume her empirci
^ Foster, 290, 291 ; Watts v. Brains, Cro. £1. 778,- J. Kely. 130, 131 ;
1 Hale, P. C. 455 ; 1 Russ. on Crimes, 580 ; Supra^ ^ 122.
8 Morley's case, 1 Hale, P. C. 456 ; J. Kelj. 55, 130 ; 1 Ross, on Crimes,
580.
3 1 Hale, P. C. 456 ; 1 East, P. C. 233 ; 1 Buss, on Crimes, 580. And
see Monroe's case, 5 Geo. R. 85.
PABT v.] HOMICIDB. 117
before the mortal blow was struck, the homicide will be mur-
der.^ And whether the time, which elapsed between the pro-
vocation and the stroke, were sufficient for that purpose, is a
question of law, to be decided by the Court ; the province of
the Jury being only to find what length of time did in fact
elapse.^
§ 126. It is further to be observed, that in cases of homi-
cide upon provocation or in sudden fight, if there be evidence
of actual malice, the offence, as we shall hereafter see, will
amount to murder. It must therefore appear that the chaS'
iisemefU or 04^ of force intended on the part of the slayer,
bore some reasonable proportion to the provocation received^
and did not proceed from brutal rage or diabolical malignity*
Proof of great provocation is requisite, to extenuate the offence,
where the killing was by a deadly weapon, or by other means
likely to produce death; but if no such weapon or means
were used, a less degree of provocation will suffice.^ Thus,
where the prisoner, who was a soldier, was struck in the face
with an iron patten, and thereupon killed the assailant with
his sword, it was held only manslaughter.^ So, where a pick-
pocket, caught in the fact, was thereupon thrown into a pond,
by way of punishment, and was unintentionally drowned,
this was ruled to be manslaughter.^ And if one should find
another trespassing on his land by cutting his wood, or oth-
erwise, and in the first transport of passion should beat him,
by way of chastisement for the offence, and unintentionally
kill him, no deadly weapon being used, it would be but man-
1 Rex V. Oneby, 2 Ld. Rajm. 1498-1496; Foster, 296 ; 1 Hale, P. C.
458 ; Rex v. Thomas, 7 C. & P. 817.
9 2 Ld. Raym. 1493. And so held in Regina n. Fisher, 8 C. & P. 183, by
Park, J., P^rke, B., and Mr. Recorder Law. Both questions had previously
been left to the Jury, by Ld. Tenterden, in Rex v. Lynch, 5 C. & P. 894, and
by Tindal, C. J. in Rex v. Hayward, 6 C & P. 157.
8 Foster, 291 ; 1 Hale, P. C. 464 ; 1 Russ. on Crimes, 581.
4 Stedman's case, Foster, 292.
8 Bex 9. Fiay, 1 £a8t,P. C. 286; 1 Rm. on Crimes, 583.
118 LAW OF BYIDENOB. [PABT V.
slaughter.^ Bat if the proYocation be resented in a brutal
and ferocious manner, evincive of a malignant disposition to
do great mischief, out of all proportion to the offence, or of a
savage disregard of human life, the killing will be murder.
Such was the case of the park-keeper, who, finding a boy
stealing wood in the park, tied him to a horse's tail and beat
him, whereupon the horse running away, the boy was killed.*
So, in the case of the trespasser cutting wood as abovemen-
tioned, if the owner had knocked out his brains with an axe
or hedge-stake, or had beaten him to death with an ordinary
cudgel, in an outrageous manner and beyond the bounds of
sudden resentment, it would have been murder ; these cir-
cumstances being some of the genuine symptoms of the mala
mensj the heart bent on mischief, which enter into the true
notion of malice, in the legal sense of that word.^
§ 127. The defence of provocation may be rebtUted, by proof
that the provocation was sought for and induced by the pri-
soner himself, in order to afford an opportunity to wreak
his malice ; or, by proof of express malice, notwithstanding
the provocation ; or, that after it was given, there was saffi-
cient time for the passion thereby excited to subside ; or, that
the prisoner did not in fact act upon the provocation, but
upon an old subsisting grudge.^
§ 128. Involuntary manslaughter is where one, doing an
unlawful actj not felonious nor tending to great bodily harm,
or doing a lawful act^ without proper caution or requisite
skill, undesignedly kills another.^ To reduce a charge of
murder to manslaughter of this kind, the evidence will be di-
1 1 Hale, P. C. 478 ; Foster, 291. And see Rex v. Wiggs, 1 Leach, 379 ;
Wild's case, 2 Lewin, 214 ; Eex v, Conner, 7 C. & P. 488.
• Halloway's case, Cro. Car. 131 ; J. Kely. 127.
3 Foster, 291 ; J. Kely. 182.
4 Bex V, Mason, Foster, 1 32 ; Id. 296 ; 1 Hal. P. C. 452 ; Bex v. Hajward,
6 G. & P. 157 ; 1 East, P. C. 239 ; Begina v. Kirkham, 8 C. & P. 115 ; Bex
17. Thomas, 7 C. & P. 817; Supra, § 125.
5 4 Bl. Comm. 182, 193 ; Foster, 261, 262.
PAST y.] HOHIOIDS. 119
rected to show either that the act intended or attempted to
be done was not felonioas, nor tending to great bodily harm ;
or, that it was not only lawful, but was done with due care
and caution, or in cases of science, with requisite skill. Thus,
if one, shooting at another's poultry wantonly, and without
intent to steal them, accidentally kills a man, it is but man-
slaughter ; but if he had intended to have stolen the poultry,
it would have been murder.^ So, if he throw a stone at an-
other's horse, and inadvertently it kills a man ;^ or if one in
playing a merry though mischievous prank, cause the death
of another, where no serious personal hurt was intended, as
by tilting up a cart, or the like, it is not murder, but nfan-
slaughter.^ But if the. sport intended was dangerous, and
likely in itself to produce great bodily harm, or to cause a
breach of the peace, these circumstances might show malice,
and fix upon the party the guilt of murder.^
§ 129. If the act be in itself lawful^ but done in an impro-
per manner, whether it be by excess, or by culpable igno-
rance, or by want of due caution, and death ensues, it will be
manslaughter. Such is the case where death is occasioned
by excessive correction, given to a child, by the parent or mas-
ter; ^ or by ignorance, gross negligence, or culpable inatten-
tion or maltreatment of a patient, on the part of one assum-
ing to be his physician or surgeon ;^ or by the negligent dri-
1 Foster, 268, 259.
a 1 Hale, P. C. 89.
3 Rex V. Sullivan, 7 C. & P. 641. And' see 1 East, P. C. 257 ; 1 Russ-on
Grimes, 637, 638 ; Re:l v. Martin, 3 G. & P. 211 ; Rex v. Errington, 2 Lemn,
217; 3 Inst 57.
4 1 Russ. on Grimes, 637, 638.
5 1 Hale, P. G. 473,474 ; J. Eely. 64, 133 ; Rex v. Gonner, 7 G. & P.
438 ; Foster, 262.
« 1 Hale, P. G. 429 ; Rex v. Webb, 1 M. & Rob. 405 ; 2 Lewin, 196 ;
Regina i;. Spilling, 2 M. & Rob. 107 ; Rex v. Spiller, 5 G. & P. 333 ; Rex v.
Simpson, 1 Lewin, 172; Rex t*. Ferguson, Id. 181 ; Rex v. Long, 4 G. & P.
398. And see Rex r. Van Butcbell, 3 G. & P. 629 ; Rex o. Williamson, Id.
635.
120 LAW OF EVIDENCE. [PABT V.
ving of a cart or carriage,^ or the like ill management of a
boat ; or by gross carelessness in casting down rubbish from
a staging, or the like.^ And, generally, it may be laid down,
that where one, by his negligence, has contributed to the death
of another, he is responsible.^ The caution which the law
requires in all these cases, is not the utmost degree which
can possibly be used, but such reasonable care as is used in
the like cases, and has been found, by long experience to an*
swer the end.*
§ 130. Murder, which is the other kind of felonious homi-
cide, is when a person, of sound memory and discretion, un-
lawfully kills any reasonable creature, in being, under the
peace of the State, with malice aforethought, either express
or implied.^ In the indictment for this crime, it is alleged
that the prisoner^ describing him by his true name and addi-
tion, on such a day^ at such a plckce within the county where
the trial is had, of his malice aforethought, feloniously killed
and murdered the dececLsed^ describing him as above, by the
means and in the m^mner therein particularly set forth. All
these allegations are material tp be proved by the prosecutor ;
except the allegation that the deceased was in the peace of
the State ; which needs no proof, but will be presumed, until
the contmry appears.
§ 131. The point, to which the evidence of the prosecutor
is usually first directed, is the death of the person alleged to
have been killed. And this involves two principal facts.
1 1 East, P. C. 263 ; Rex v. Walker, 1 C. & P. S20 ; Bex v. Knight,
1 Lewin, 168 ; Bex v. Grout, 6 C. & P. 629 ; Alison's Crim. Law of Scotland,
p. US - 122. See, as to bad navigation, Begina r. Taylor, 9 C. & P. 673 ;
Alison's Crim. Law of Scotland, p. 132.
a 1 East, P. C. 2^2 ; Foster, 863; 1 Hale, P. C. 473 ; S Inst. 57.
3 Begina v. Swindall, 2 C. & E. 232, per Pollock, C. B.
^ Foster, 264 ; Alison's Crim. Law of Scotland, p. 148.
5 8 Inst. 47 ; 4 BL Comm. 195 ; 1 Buss, on Crimes, 483 ; Wharton's Am.
Crim. Law, 856.
PABT v.] HOMICIBB. 121
namely, that the person is dead, and that he died in conse-
qnence of the injury alleged to have been received.^ The
corpus deliciij or the fact that a murder has been committed,
is so essential to be satisfactorily proved, that Iiord Hale ad-
vises that no person be convicted of culpable homicide, unless
the fact were proved to have been done, or at least the body
found dead.^ Without this proof, a conviction would not be
warranted, though there were evidence of conduct of the pri-
soner, exhibiting satisfactory indications of guilt^ But the
fact, as we have already seen,^ need not be directly proved ;
it being sufficient if it be established by circumstances so
strong and intense as to produce the full assurance of moral
certainty. Neither is it indispensably necessary to prove
that the prisoner had any motive to commit the crime, though
the absence of such motive ought to receive due weight in
his favor.^
§ 132. The most positive and satisfactory evidence of the
fact of deaths is the testimony of those who were present
when it happened; or who having been personally ac-
quainted with the deceased in his lifetime, have seen and
recognized his body after life was extinct This evidence
1 If death did not take place witliin a year and a day of the time of re-
eeiring the wound, the law draws the conclusion that it was not the cause of
death; and neither the Court nor Jury can draw a contrary one. The
State V. Orrell, 1 Dev. 1S9, 141, per Henderson, J. ; 3 Inst. 53 ; 8 Chitty,
Crim. L. [786.]
s 2 Hale, P. C. 290. A similar rule prevailed in the Boman Civil Law,
as appears from the Digest, on the laws depuUica quastione d/amilia neca'
tarum habenda; under which no person was put on his defence for the homi*
dde, until the corpus delicti was proved ; — nisi constet aliquem esse occi-
snm, non haberi de familia quaestionem. Qnestionem autem sic accipimus,
non tormenta tantum, sed omnem inquisitionem et defensionem mortis. Dig. .
fib. 29, tit 5,1. 1, $24,25.
3 Begina v. Hopkins, 8 C. & P. 591. So held in a case of larceny, in
Tyner o. The State, 5 Humph. 888.
4 Suproj § 80. In Georgia, in case of a capital conviction upon circum-
stantial evidence only, the Judge who passes the sentence may commute the
punishment to the penitentiary for life. Hotchk. Dig. p. 795.
6 Sunmer v. The State, 5 Blackf. 579.
VOL. III. 11
122 LAW OF BVIDBHCE. [PART Y.
seems to be required in the English House of Lords, in daiins
of peerage ; and a fortiori a less satisfactory measure of proof
ought not to be required in a capital trial. In these cases
the testimony of medical persons, where it can be had, is
generally most desirable, whenever the nature of the ease is
such as to leave any doubt of the fact^
§ 133. But though it is necessary that the bodp of ike
deceased be satisfactorUy identified^ it is not necessary that
this be proved by direct and positive evidence, if the circum-
stances be such as to leave no reasonable doubt of the fact
Where only mutilated remains have been found, it ought to
be clearly and satisfactorily shown, that they are the remains
of a human being, and of one answering to the sex, age and
description of the deceased ; and the agency of the prisoner
in their mutilation, or in producing the appearances found
upon them, should be established. Identification may also
be facilitated, by circumstances apparent in and about
the remains, such as the apparel, articles found on the per-
son, and the contents of the stomach, connected with proof
of Ibe habits of the deceased in respect to his food, or with
the circumstances immediately preceding his dissolution.^
§ 134. The death, and the identity of the body being esta-
^ Hubback on Succession, p. 159, 160. By the ]^man Civil Law, as well
as hy ours, the death may be proved not only- hy those who saw the party
dead and buried, but by those who saw him dying, or, who were present at
a funeral called his, but who did not see the body. Mascard. De Probat
Concl. 1077. In some cases, by that law, death might be proved by common
&me; but not in cases involving highly penal consequences; — non in
(cauns) gravioribus ; secus autem in his, quss modicum damnum afierre po»-
0unt Idem. Concl. 1076, n. 1, 3. It might also be proved by circimistan-
tial evidence ; but was never to be presumed, as an inference of law.' Mors
non pr»8umitur, sed est probanda ; cum quilibet presnmatur vivere. Idem.
Concl. 1075, n. 1. And see Idem. Concl. 1078, 1079. Ante^ Vol. 2, tit
Death.
« Wills on Cir. Evid. p. 164 - 168. See Booms' case, anU^ VoL 1, § 214,
n. That the name as well as the person of the deceased must be precisely
identified, has already been shown, supra, ^ 22. The subject of the identi-
fication of mutilated remains was very fully discussed in the trial of Dr. Web-
steri xeported by Mr. Bemis.
PABT v.] HOMIOIDB. 128
blished, it is necessary, io the next place, to prove that the
deceased came to his death by the unlauful act of another per'
eon. The possibility of reasonably accounting for the fact by
iuicide, by accident^ or by any natural cause^ mast be excluded
by the circumstances proved ; and it is only when no other
hypothesis will explain all the conditions of the case, and
account for all the facts, that it can safely and justly be con-
cluded that it has been caused by intentional injury.^ Though
suicide and accident are often Artfully but falsely suggested
in the defence, as causes of the death, especially where the cir-
cumstances are such as to give plausibility to the suggestion ;
yet the suggestion is not on this account to be disregarded ;
but all the facts relied on are to be carefully compared and
considered ; and upon such consideration, if the defence be
false, some of the circumstances will commonly be found to
be irreconcilable with the cause alleged. Scientific evidence
sometimes leads to results perfectly satisfactory to the mind ;
but when uncorroborated by oondusive moral drcumstancesi
it should be received with much caution and reserve ; and
justice no less than prudence requires that, where the guilt of
the accused is not conclusively made out, however suspicious
his conduct may have been, he should be acquitted.^
1 VnXiB <m Cir. Evid. p. 168.
s Ibid. p. 168, 172. On this subject the foUo^ng important observations
are made by Mr. Starkie. ** It sometimes happens that a person detennined
on self-destruction resorts to esqpedients to conceal his guilt, in order to save
his memory from dishonor, and to preserve his property from forfeiture.
Instances have also occurred where, in doubtful cases, tiie surviving rela-
tions have used great exertions to rescue the character of the deceased from
ignominy, by substantiating a charge of murder. On the other hand, in fre-
quent instances, attempts hare been made by those who have really been
guilty <^ murder, to perpetrate it in such a manner as to induce a belief that
the party mafelo de se. It is well for the security of society diat sndi aa
attempt seldom succeeds, so ^fGlcult is it to substitute artifice and fiction ftr
nature and truth. Where the circumstances are natural and real, and have
not been counterfeited with a view to evidence, they must necessarily correi-
pond and agree with each other, for they did really so co-exist ; and there-
fore, if any one circumstance which is essential to the case attempted to be
established be wholly inconsistent and inecondlable with such other cireum-
124 LAW OF BVIDENCE. [PABT Y.
§ 135. In the case of death bp poisonings it is not necessary
to prove the particular substance or kind of poison used ; nor
to give direct and positive proof what is the quantity which
would destroy life ; ^ nor is it necessary to prove that such a
stances as are known or admitted to be trae, a plain and certain inference
results that fraud and artifice have been resorted to, and that the hypothesis
to which such a circumstance is essential cannot be true. The question,
whether a person has died a natural death, as from apoplexy, or a violent
one from strangulation ; whether the death of a body found immersed in
water has been occasioned by drowning, or by force and violence previous
to the immersion ; whether the drowning was voluntary, or the result of
force ; whether the wounds inflicted upon the body were inflicted before or
after death, are questions usually to be decided by medical skiU. It is scarcely
necessary to remark, that where a reasonable doubt arises whether the deatk
resulted on the one hand from natural or accidental causes, or, on the other,
from the deliberate and wicked act of the prisoner, it would be unsafe to
convict, notwithstanding strong, but merely circumstantial evidence against
him. Even medical skill is not, in many instances, and without reference to
the particular circumstances of the case, decisive as to the cause of the death ;
and persons of science must, in order to form their own ooncluraon and
opinion, rely partly on external circumstances. It is, therefore, in all cases,
expedient that all the accompanying &cis should be observed and noted
with the greatest accuracy ; such as the position of the body, the state of the
dress, marks of blood, or other indications of violence ; and in cases of stran-
gulation, the situation of the rope, the position of the knot ; and also the situ-
ation of any instrument of violence, or of any object by which, considering
the position and state of the body, and other circumstances, it is possible that
the death may have been accidentally occasioned/' 2 Stark, on £vid. 519-
521, (6th Am. ed.)
1 The observations of Mr. Lofll, on the testimony of men of science, are
worthy of profound attenticm. ^ In general/' he says, *< it may be taken,
that when testimonies of professional men of just estimation are affirmative^
they may be safely credited ; but when negative^ they do not amount to a
disproof of a charge otherwise established by various, and independent
circumstances. Thus, on the view of a body af\er death, on suspicion of
pcisortf a physician may see cause for not positively pronouncing that the
party died by poison ; yet if the party charged be interested in the death, if
he appears to have made preparation of poisons without any probable just
motive, and this secretly ; if it be in evidence that he has in other instances
brought the life of the deceased into hazard ; if he has discovered an expect-
ation of the fatal event ; if that event has taken place suddenly, and without
previous circumstances of ill health ; if he has endeavored to stifle inquiry,
by precipitately burying the body, and afterwards, on inspection, signs agree-
PAKC Y.] HOIOCIDB. 125
quantity was found in the body of the deceased. It is suffi-
cient if the Jury are satisfied from all the circumstances, and
beyond reasonable doubt, that the death was caused by
poison, administered by the prisoner.^ Upon the latter point,
the material questions are, whether the prisoner had any mo-
tive to poison the deceased, ^- whether he had the oppor-
tunity of administering poison, -—and whether he had poison
in his possession or power to administer. To these inquiries,
every part of the prisoner's conduct and language, in relation
to the subject, are material parts of the res gestcB^ and are
admissible in evidence.^ But it is not necessary to prove that
the poison was administered by the prisoner's own hand ; for
if, with intent to destroy the deceased, he prepares poison
and lays it in his way and he accordingly takes it and dies ;
or if he gives it to an innocent third person, to be adminis-
tered to the deceased as a medicine, which is done and it
kills him ; this evidence will support a charge against the
prisoner as the murderer.^ So, where the third person, who
was directed by the prisoner to administer the dose, omitted
to do so, and afterwards the poison was accidentally admin-
istered by a child, and death ensued ; this was held sufficient
ing with poison are obsenred, though such as medical men will not podtiYely
affinn could not have been owing to any other cause, the accumulative
strength of circumstantial evidence may be such as to warrant a conviction ;
since more cannot be required than that the charge should be rendered
highly credible from a variety of detached points of proof, and that supposing
poison to have been employed, stronger demonstration could not reasonably
have been expected to have been, under all the circumstances, producible."
1 Gilb. on £vid. by Lofit, p. 802.
I Bex V, TaweU, cited in Wills on Cir. Evid. 180, 181. Statements made
by the deceased, a short time previous to the alleged poisoning, are admiBBi-
ble to prove the state of his health at that time, fiegina o. Johnson, 2 C. &
K.854.
> See the observations of BuUer, J., in DoneUan's case ; and of Abbott, J,,
in Bex o. Donnall ; and of Bolf, B., in Begina o. Graham; and of Parke, B.,
in Bex v. TaweU; cited in Wills (m Cir. Evid. 187 ~ 191 ; Begina v. Geer-
ing, 18 Law J. 215.
3 J. Eely. 52, 58; Foster, 849; 1 Hale,P. C. 616; Bex v. IVicholsoDt
1 East, F. C. 846.
11*
126 LAW OF BVIDBNCB. [PABT Y.
to support an indictment against the prisoner as the sole and
immediate agent in the murder.^
§ 136. To support an indictment for infcmUcidej at com-
mon law, it must be clearly proved that the child was wholly
born, and was born alive, having an independent circulation
and existence. Its having breathed is not sufficient to make
the killing amount to murder; as it might have breathed be-
fore it was entirely born ; ^ nor is it essential that it should
have breathed at the time it was killed, as many children
are born alive and yet do not breathe for sometime after-
wards.® Neither is it material that it is still connected with
the mother by the umbilical cord, if it be wholly brought
forth, and have an independent circulation.^ But in all cases
of this class, it must be remembered, that stronger evidence of
intentional violence will be required than in other cases ; it
being established by experience, that in cases of illegitimate
birth, the mother, in the agonies of pain or despair, or in the
paroxysm of temporary insanity, is sometimes the cause of
the death of her offspring, without any intention of commit-
ting such a crime ; and that therefore mere appearances of
violence on the child's body are not sufficient to establish her
guilt, unless there be proof of circumstances, showing that the
violence was intentionally committed, or the marks are of
such a kind as of themselves to indicate intentional mur-
der.^
§ 137. After proving that the deceased was feloniously
1 Regina v. Michael, 9 G. & P. 356.
9 Rex V. Enoch, 5 C. & P. 539 ; Rex o. Poulton, Id. 829.
3 Rex V, Brain, 6 C. & P. 349.
« Rex V, Reeves, 9 C. & P. 25 ; Rex v. CrutcUey, 7 C. & P. 814 ; Rex v.
SelliB, Id. 850 ; Regina v. Wright, 9 G. & P. 754 ; Wills on Cir. Evid. p.
204 ; Regina v. TriUoe, 2 Mood. G. G. 260 ; 1 G. & M. 650. If the child be
intentionally mortally injured before it is bom, but is bom alive, and aftei^
wards dies of that injury, it is murder. 3 Inst. 50 ; 1 Russ. on Grim. 485 ;
Rex o. Senior, 1 Mood. Gr. Gas. 346 ; 4 Gom. Dig. Justices, M. 3, p. 449.
5 Alison's Prin. Grim. Law, p. 158, 169 ; Wills on Gir. Evid. 306, 207.
PART v.] HOMICIDB. 127
killed, it is necessary to show that the prisoner tocLS the guilty
agent. And here also, any circumstances in the conduct and
conversation of the prisoner, tending to fix upon him the
guilt of the act, such as, the motives which may have urged
him to its commission, the means and facilities for it which
he possessed, his conduct in previously seeking for an oppor-
tunity, or in subsequently using means to avert suspicion
from himself, to stifle inquiry, or to remove material evidence,
are admissible in evidence. Other circumstances, such as
possession of poison, or a weapon, wherewith the deed may
have been done, marks of blood, the state of the prisoner's
dress, indications of violence, and the like, are equally com-
petent evidence. But it is to be recollected, that a person of
weak mind or nerves, under the terrors of a criminal accu-
sation, or of his situation as calculated to awaken suspicion
against him, and ignorant of the nature of evidence, and the
course of criminal proceedings, and unconscious of the secu-
rity which truth and sincerity afford, will often resort to arti-
fice and falsehood, and even to the fabrication of testimony,
in order to defend and exonerate himself.^ In order, there-
fore, to convict the prisoner upon the evidence of circum-
stances, it is held necessary not only that the circumstances
all concur to show that he committed the crime, but that they
all be inconsistent with any other rational conclusion.^
§ 138. But in order to prove that the prisoner was the
guilty agent, it is not necessary to show that the fatal deed
was done immediately by his own hand. We have already
seen that if he were actually present aiding and abetting the
deed ; or were constructively present, by performing his part
in an unlawful and felonious enterprise, expected to result in
homicide, such as by keeping watch at a distance, to prevent
surprise, or the like, and a murder is committed by some
other of the party, in pursuance of the original design ; or if
i 2 Hale, P. C. 290; 3 Inst 202 ; 2 Stark. Ev. 521, 532.
s Hodge's case, 2 Lew. Or. Cas. 227, per Alderson, B. ; 1 Stark. £r. SOT-
SI 2.
128 LAW OF SVIDINCB. [PA&T V.
he combined with others to commit an unlawful act, with the
resolution to overcome all opposition by force, and it results
in a murder ; or if he employ another person, unconscious of
guilt, such as an idiot, lunatic, or child of tender age, as the
instrument of his crime, he is guilty as the principal and im-
mediate offender, and the charge against him as such will be
supported by evidence of these facts.^
§ 139. If death ensues from a wound, given in malice, but
not in Us nature mortal, but which being neglected or misma-
naged, the party died ; this will not excuse the prisoner who
gave it; but he will be held guilty of the murder, unless he
can make it clearly and certainly appear that the mal-treat-
ment of the wound, or the medicine administered to the pa-
tient, or his own misconduct, and not the wound itself, was
the sole cause of his death ; for if the wound had not been
given, the party had not died*^ So, if the deceased were ill
of a disease apparently mortal, and his death were hastened
by injuries maliciously inflicted by the prisoner, this proof
will support an indictment against him for murder ; for an
offender shaU not apportion his own wrong »
§ 140. The mode of killing is not material. Moriendi miUe
figurcB. It is only material that it be shown that the deceased
died of the injury inflicted, as its natural, usual, and probable
consequence. The nature of the injury is specifically set
forth in the indictment; but, as we have already seen,^ it is
sufficient if the proof agree with the allegation in its substance
and generic character, without precise conformity in every
particular. Thus, if the allegation be that the death was
1 AnUf Vol. 1, ^ 111 ; SuprOf tit Accessoby, j^o^nm; Supra, § 9 ; Fos-
ter, 259, 850, 858; Bex v. Culkin, 5 C. & P. 121; 1 Hale, P. C. 461;
1 Baas, on Crim. 26 - 80 ; Begina v. Tyler, 8 C. & JP. 6 16.
9 Bex V, Bew, J. Eely. 26 ; 1 Hale, P. C. 428 ; 1 Buss, on Crim. 505 ;
Bex t;. Holland, 3 M. & Bob. 851 ; Alison's Crim. Law of Scotland, 147.
8 1 Hale, P. C. 428 ; 1 Buss, on Crim. 505, 506, and note by Greaves ;
Bex r. Martin, 5 C. & P. 128 ; Bex v. TVebb, 1 M. & Bob. 405.
4 Ante, Vol. 1, § 65. And see 2 Hawk. P. C. eh. 46, § 87.
PAKT v.] HOMICIDE. 129
caused by stabbing with a daggef', and the proof be of killing
by any other sharp instrument ; ^ or if it be alleged that the
death was caused by a blow with a club, or by a particular
kind of poison, or by a particular manner of suffocation, and
the proof be of killing by a blow given with a stone or any
other substance, or by a different kind of poison, or another
manner of suffocation, it is sufficient ; ^ for, as Lord Coke ob-
serves, the evidence agrees with the effect of the indictment,
and so the variance from the circumstance is not material. But
if the evidence be of death in a manner essentially different
from that which is alleged ; as, if the allegation be of stab-
bing or shooting, and the evidence be of death by poisoning ;
or the allegation be of death by blows inflicted by the prisoner,
and the proof be that the deceased was knocked down by
him and killed by falling on a stone ; the indictment is not
supported.' And whatever be the act of violence alleged, it
must appear in evidence that the death was the consequence
of that act. But if it be proved that blows were given
by a lethal weapon, and were followed by insensibility or
other symptoms of fatal danger, and afterwards by death,
this is sufficient to throw on the prisoner the burden of prov-
ing that the death proceeded from some other cause.^
I Rex V. Mackalley, 9 Rep. 65, 67 ; 2 Inst 319. So, if the charge be of
murder by " cutting with a hatchet," or, by " striking and cutting with an in-
strument unknown," evidence may be given of shooting with a pistol. The
People V. Colt, 3 Hill, 432. And if the chaise be of shooting with a leaden
bullet, it is supported by proof of shooting with a load of duck-shot. Good-
win's case, 4 Sm. & M. 520.
« 2 Hale, P. C. 185 ; Rex v. Tye, R. & Ry. 345 ; Rex v, Culkin, 5 C. &
P. 121 ; Rex v. Waters, 7 C. & P. 250 ; Rex v, Grounsell, Id. 788 ; Rex r.
Martin, 5 C. & P. 128. And see Rex v. Hickman, Id. 151 ; Regina v. O'-
Brian, 2 C. & K. 115 ; Regina v. Warman, Id. 195 ; Ante, Vol. 1, § 65.
3 Bex V, Thompson, 1 Mood. C. C. 139 ; Rex v. Kelly, Id. 113. If the
allegation be of shooting with a leaden bullet, and the proof be that there
was no bullet, but that the injury proceeded from the wadding; quare^
whether the charge is supported by the evidence. And see Rex v, Hughes^
5 C. & P. 126.
« United States v. Wiltberger, 3 Wash. 515.
130 LAW OP EVIDENCE. [PART V.
§ 141. Where the death is charged to have proceeded from
a particular artificial cause, and the proof is, that it was ovlj
accelerated by that cause j but in fact proceeded from another
artificial cause^ the evidence does not support the charge.
Thus, where the charge was of causing the death of a child by
exposing it to cold, and the proof was, that it was found ex*
posed in a field, alive, but with a mortal contusion on its
head, and that it died in a few hours afterward ; it was held,
that if the death was only accelerated by the exposure, the
charge was not supported.^ So, if the indictment charges
that the death was occasioned by two jointly co-operating
causes^ as, by starving and beating, both must be proved, or
the indictment fails.^ But if the charge be of killing by the
act of the prisoner as the cause, and the proof is that the de-
ceased was aick, and must soon have died from that disease,
as a natural consequence, the violent act of the prisoner only
having accelerated his death, the charge is nevertheless sup*
ported.*
§ 142. Forcing" a person to do an act which causes his deatk^
renders the death the guilty deed of him who compelled the
deceased to do the act And it is not material whether the
force were applied to the body or the mind ; but if it were the
latter, it must be shown that there was the apprehension of
immediate violence, and well grounded, from the circum-
stances by which the deceased was surrounded ; and it need
not appear that there was no other way of escape, but it must
appear that the step was taken to avoid the threatened dan-
ger, and was such as a reasonable man might take.^ But if
1 Stockdale's case, 2 Lew. 220; 1 Bum. on Crim. 566.
« Ibid. ; Rex v, Saunders, 7 C. & P. 277.
3 The State v. Morea, 2 Ala. 275.
^ Begina v. Pitts, 1 Carr. & Marshm. 284, per Erskine, J. ; Rex v. Evans,
1 Russ. on Crim. 489 ; Rex v. Waters, 6 C. & P. 828. If a ship master
knowingly and maliciously compels a sick or disabled seaman to go aloft,
while he is in such a state of debility and exhaustion that he cannot comply
without danger of death or enormous bodily injury, and the seaman falls firom
the mast and is drowned or killed, it is murder in the master, whether the
PABX v.] HOMICn>B« 131
the charge be, that the prisoner <<did compel and force" ano-
ther person to do an act, which caused the death of a third
party, this allegation will require the evidence of personal
affirmative force, applied to the person in question. Thus,
where it was stated in the indictment, that the prisoner '^ did
compel and force " A. and B. to leave working at the wind-
lass of a coal mine, by means of which the buclcet fell on
the head of the deceased who was at the bottom of the mine,
and killed him ; and the evidence was, that A. and B. were
working at one handle of the windlass, and the prisoner at
the other, all their united strength being requisite to raise the
loaded bucket, and that the prisoner let go his handle and
went away, whereupon the others, being unable to hold the
windlass alone, let go their hold, and so the bucket fell and
Mlled the deceased ; it was held that this evidence was not
sufficient to support the indictment.^
§ 143. In regard to the place where the crime was com-
mitted, it is material to prove that it was done in the county
where the trial is had ; for by the common law, murder, like
all other offences, can be inquired of only in the county where
it was committed. Hence the indictment should be so drawn,
that it may judicially appear to the Court that the offence
was committed within the county, this being the limit of
theli' jurisdiction ; and the uniform course, in capital cases,
has always been to state also the town or parish where it was
done ; but it is not material, at this day, to prove the town
or parish, in any case, unless where it is stated as matter of
local description, and not as venue.^ Neither is it material,
means of compnlsion -were moral or physical. U. States v. Freeman, 4 Ma-
son, 505.
1 Rex V. Lloyd, 1 C..& P. 801.
9 3 Hawk. P. C. ch. 25, ^ 84 ; 2 Russ. on Crim. 800, 801 ; Commonwealth
V. Springfield, 7 Mass. 18. By tlie common law, as recited in llie Stat. 2 & 8
£d. 6, cap. 24, sec. 2, if the mortal stroke or injury was given in one county,
a|id the death happened in another, the party could not be tried in either ;
but, by that statute, proYision was made that the trial might be had in either
of the counties; and the like rule is adopted generally in the United States.
132 LAW OF EVIDBNCE. [PABT T.
as we have already seen, to prove the precise iime when the
crime was perpetrated, if it be alleged and proved that the
death took place within a year and a day after the injury or
mortal stroke was inflicted.^
§ 144. The chief characteristic of this crime, distinguishing
it from every other species of homicide, and therefore indis-
pensably necessary to be proved, is malice prepense^ or afore-
thought This term, however, is not restricted to spite or
malevolence towards the deceased in particular, but, as we
have stated in a preceding section, it is understood to mean
that general malignity, and recklessness of the lives and per-
sonal safety of others, which proceed from a heart void of a
just sense of social duty, and fatally bent on mischief.^ And
whenever the fatal act is committed deliberately, or without
adequate provocation, the law presumes that it was done in
malice ; and it behoves the prisoner to show from evidence,
or by inference from the circumstances of the case, that the
offence is of a mitigated character, and does not amount to
murder.^ In showing this, the idea or meaning of what the
law terms malice is carefully to be kept in view ; and the evi-
dence is to be directed not merely to prove that he enter-
tained no ill wiU towards the deceased in particular, but to
The reason for this strictness in regard to the place of trial was, that an-
ciently the jurors decided causes upon their own private knowledge, as well
as upon the evidence given by others, and therefore were summoned de tii-
cineto. See Stephen on Pleading, p. 158, 297, 301. (Am. ed. 1824.)
1 Supra, ^ 120.
3 See supra, $ 14; 4 Bl. Com. 198; Foster, 256, 257 ; 2 Stark. Evid.
516 ; U. States v. Boas, 1 Gall. 628.
3 Rex V, Greenacre, 8 0. & P. S5, per Tindal, C. J. ; 4 BL Comm. 200 ;
Supra, § 18; York's case, 9 Met 108. Such is also the rule in Scotland.
Alison's Grim. Law of Scotland, 48, 49. It also seems to be the rule of the
Boman Civil Law. Omne malum factum prave semper praesumitur actum ;
nia ratione personsB contraria omnino oriatur preesumptio. Mascard. De
Probat Concl. 228, n. 5. Si homicidium committatur, pnesumitur in dubio
dolose committi, licet potuisset patrari ad defensionem. Id. Concl. 1007, n.
62. Omne malum prtesumitur pessim^ factum, nisi probetur contrarium.
Id. ConcL 1168, n. 28.
PAKTV.] HOHICIDB. 133
show that, in doing the act which resiilted fatally, he was
not unmindfal, but on the contrary was duly considerate and
careful, of the lives and safety of all persons.
§ 145. Malice is said to be either express^ or implied. Ex*
press malice is proved by evidence of a deliberately formed
design to kill another ; and such design may be shown from
the circumstances attending the act ; such as the deliberate
selection and use of a lethal weapon, knowing it to be such ;
a preconcerted hostile meeting, whether in a regular duel,
with seconds, or in a street fight mutually agreed on, or noti«
fied and threatened by the prisoner ; privily lying in wait ; a
previous quarrel or grudge; the preparation of poison, or
other means of doing great bodily harm, or the like.^ im-
pliedj or constructive malice is an inference or conclusion of
law, upon the facts found by the Jury ; and among these, the
actual intention of the prisoner becomes an important fact ;
for though he may not have intended to take away life, or to
do any personal harm, yet he may have been engaged in the
perpetration of some other felonious or unlawful act, from
which the law raises the presumption of malice.^ Thus, if
one attempts to kill or maim A. and in the attempt, by acci-
dent kills B. who was his dearest friend, or darling child ; or
if one, in the attempt to procure an abortion, causes the death
of the mother ; or if, in a riot or fight, one of the parties
accidentally kills a third person who interfered to part the
combatants and preserve the peace ; the law implies malice,
and the slayer is held guilty of murder.^ And though other
agents intervene between the original felonious act and its
consummation, as, if A. gives poisoned food to B., intending
1 4 Bl. Comm. 198, 199. And see The State v. Zellers, 2 Halst 220 ;
Stone's case, 4 Humph. 27. Where the crime is charged to have been com-
mitted with the actual and premeditated design to kill the deceased, this has
been regarded as of the essence of the charge, and held necessary to be
proved. The People v. White, 24 Wend. 620.
9 2 Stark, on Evid. 515, 516 ; Foster, 255 - 257.
3 Foster, 261, 262; 1 Hale, P. G. 438, 441; Hawk. P. C. b. 1. ch. 81,
§54.
VOL. III. 12
134 LAW 09 BVIDBNCE. [PABT V.
that he should eat it and die, and B., ignorant of the poison,
and against the will and entreaty of A., gives it to a child,
who dies thereby ;^ or, it is voluntarily tasted by an innocent
third person, by way of convincing others of his belief that it
is not poisoned ; as in the case of the apothecary, into whose
medicine, prepared by him for a sick person, another had
purposely mingled poison ;^ the law still implies malice, and
holds the wrong-doer gailty of murder.
§ 146. Malice is also a legal presumption, where an officer of
justice is resisted while in the execution of his office, and in
such resistance is killed. And this rule is extended to all ex-
ecutive officers, such as sheriffs, marshals and their deputies,
coroners, constables, bailiffs, and all others authorized to exe-
cute process and preserve the peace ; and to all persons aid-
ing them therein ; as well as to the watchmen, and officers
and men in the department of police, and their assistants.
The rule also extends not only to the scene of action, and
while the officer is engaged in the particular duty of his
office which called him thither, but also to thetime while he
is going to and returning from the places ; eundo^ morando^ et
redeundo. It also applies to all persons knowingly aiding,
abetting, and taking part in the act of resistance. But the
rule is limited to cases where the officer is in the due execu-
tion of his duty, having sufficient authority for the purpose ;
and where his official character or his right to act, is either
actually known, or may well be presumed from the circum-
stances ; or where the slayer, not knowing the officer or the
circumstances, interfered to help a fight, by aiding one party
against the other, and not to preserve the peace and prevent
mischief.^ This rule is also applied in the case of private
^ Saunders's case, Plowd. 473.
9 Gore's case, 9 R^p. 81.
3 See 1 Rubs, on Crimes, p. 532 - 538, 592 - 635, where the subject is
fuller treated ; a more extended discussion of it being foreign from the plan
of this work. See also, Wharton's Amer. Crim. Law, p. 898 - 408 ; Supra^
§ 123; Commonwealth v. Drew, 4 Mass. 391, 395.
PART v.] HOMICIDE. 136
persons, killed in attempting to arrest a criminal, whenever
the circumstances were such as to authorize the airest^
§ 147. Malice may also be proved by evidence of gross
recklessness of human life^ whether it be in an act of womUm
sporty such as purposely, and with intent to do hurt, riding
a vicious horse into a crowd of people, whereby death ensues ;
or by ccLSiing stoneSy or other heavy bodies, likely to create
danger, over a wall or from a building, with intent to hurt the
passers by, one of whom is killed;^ or where a parent or
master corrects a child in a savage and barbarous manner, or
with an instrument likely to cause death, whereof the child
dies ; ' or where, in any manner, the life of another is know-
ingly cruelly and grossly endangered, whether by actual vio-
lence, or by inhuman j7Wt;a^iont>r eocposurcj and death is caused
thereby.^ So, where death ensues in a combat, upon provo-
c<Uion sought by the slayer ; or upon a punctilio proposed by
him, such as challenging the deceased to take a pin out of
bis sleeve, if he dared.^ So, if the provocation be by words
or gestures only^ and the stroke be with a lethal weapon, or
in a manner likely to kill, this is evidence of malice ; unless
the words or gestures be accompanied by some act, indicating
an intention of following them up by an actual assault ; in
which case the offence is reduced to manslaughter.^ So,
whatever be the provocation, if afterwards, and before the
fatal stroke, sufficient time had elapsed for the passion to sulh
1 In what cases a private person may make an arrest, see »upra, ^ 123,
note.
3 8 Inst. 57, as limited by Holt, C. J., 1 Ld. Bajm. 143 ; 1 Hale, P. C.
475 ; 4 Bl. Comm. 192, 200; 1 East, P. C. 281.
3 Foster, 362 ; 1 Hale, P. C. 474 ; Grey's case, J. Eely. 64.
* See Alison's Crim. Law of Scotland, p. 3, 4 ; 1 Hale, P. C. 481, 482 ;
1 East, P. C. 225 ;* Palm. 548, per Jones, J. ; Regina v. Walters, 1 Car. 4c
Marsh. 164 ; 1 Russ. on Crim. 488 ; Squire's case. Id. 490 ; Stockdale's case,
2 Lew. 220 ; Bex v. Huggins, 2 Stra. 882 ; Castelv. Bambridge, 2 Stra. 854,
856.
5 1 Hale, P. C. 457.
« Watts V. Brains, Cro. EL 778 ; J. Eely. 131 ; 1 Hale, P. C. 455, 456 ;
1 Buss, on Crim. 515 ; The State v. Merrill, 2 Dot. 869.
136 LAW OP EVIDENCE. [PART V.
side, this is proof that the killing was of malice.^ But when
express malice is once proved to have existed, its continuance
is presujned, down to the time of the fatal act ; and the bur-
den of proof is on the slayer to repel this presumption, by
showing that the wicked purpose had afterwards, and before
the fatal act, been abandoned.^ And where such expressly
malicious intent is proved, the provocation immediately pre-
ceding it, whatever may have been its nature, is of no avail
to mitigate the offence.
§ 148. It is a settled principle that drunkenness is not an
excuse for a criminal act, committed while the intoxication
lasts, and being its immediate result.^ But the condition of
the prisoner in this respect, has sometimes been deemed a
material inquiry, in order to ascertain whether he has been
guilty of the specific offence of which he is indicted ; as, for
example, whether he be guilty of murder in the first or only
in the second degree. Malicious homicides, it is well known,
are distinguished, by the statutes of several of the United
States, into cases of the first and the second degrees, for which
different punishments are assigned ; and though there is some
diversity in the descriptions of these cases, yet in substance
it will be found, that murders, committed with the deliberate
and premeditated purpose of killing, or in the attempt to com-
mit any other crime, punished with death or perpetual con-
finement in the State penitentiary, are of the first degree ;
and that all others are murders of the second degree.* When-
1 The subject of provocation, and when it redaces the crime -to man-
slaughter, has already been considered. See supra, ^ 122-127. And see
The State r. Hill, 4 Dev. & Bat. 491.
9 The State t7. Johnson, 1 Ired. 854 ; The State r. TiDy, 3 Ired. 424 ;
Shoemaker v. The State, 12 Ohio, R. 48 ; Ck>mmon wealth v. Green, 1 Ashm.
289. And see ante, Vol. 1, ^ 42.
3 Ante, Vol. 2, § 874 ; Supra § 6 ; The State v. Bullock, 18 Ala. 418.
4 Murray's case, 2 Ashm. 41 ; William's case, Id. 69 ; Commonwealth v.
Prison-keeper, Id. 227 ; Mitchell's case, 5 Yerg. 840 ; Dale's case, 10 Yerg.
551 ; Swan's case, 4 Humph. 186; Jones's case, 1 Leigh, R. 598; White-
ford's case, 6 Band. 721 ; Clark's case, 8 Humph. 671.
PABTV.] ^ HOMICIDB. 137
ever, therefore, in an indictment of murder in the first degree,
the chief ingredient is the deliberately formed purpose of
taking life, it has been held, in some of the United States,
that evidence that the prisoner was so drunk as to be utterly
incapable of forming such deliberately premeditated design,
is admissible in proof that the offence has not been commit-
ted.^ But whether this will be generally admitted as a sound
and safe rule of criminal law, can be known only from future
decisions in other States.
§ 149. It is not competent for the prisoner to give in evi-
dence his own account of the transaction, related immedi-
ately after it happened, even though no person was present
at the occurrence ; for his account of it was no part of the
resgesiiB^
1 Cornwell'B caw, Mart. & Yerg. 157 ; Swan'i case, 4 Han^h. 1S6. And
see The State v. McCants, 1 Speers, 384.
> The State v. TMyy 8 Ired. 424. And see arUe^ Vol. 1, ^ 108.
12
138 LAW OF BVIDBNCB. . ' [PART V.
LARCENY.
§ 150. The most approved definition of this offence, at
common law, is that which is given by Mr. East, namely,
<< the wrongful or fraudulent taking and carrying away, by
any person, of the mere personal goods of another, from any
place, with a felonious intent to convert them to his (the
taker's) own use, and make them his own property, without
the consent of the owner." ^ -But even this definition, though
admitted by Parke, B., to be the most complete of any, was
thought by him to be defective, in not stating what was the
meaning of the word "/etomows," in that conoection ; which,
he proceeded to say, " might be explained to mean that there
is no color of right or excuse for the act ; " adding that the
" intent " must be to deprive the owner not temporarily, but
permanently, of his property.^
§ 151. In the indictment for this offence, it is alleged, that
A, B, (the prisoner,) on , at , such and such goods,
1 2 East, F. C. 553 ; 2 Ross, on Crimes, p. 2. And see Hammoiid's case,
2 Leach, Cr. Cas. 1089, per Grose, J. The old English lawyers described
larceny as Contrectatio rei aliensB fraudulenta, cum animo furandi, invito
illo domino cujus res ilia fuerit. Bracton, lib. 3, c. 32, § 1. Fleta defines it
in Bracton's own words. Fleta, lib. 1, c. 88, § 1. The Roman Civil Law
was larger than the common law in its comprehension of this crime. Fnr-
tum est contrectatio fraudulosa, Incri faciendi gratift, vel ipsius rei, vel etiam
usOls ejusj possessionisve. Inst lib. 4, tit 1, ^ 1. Even the misuse of a thing
bailed was sometimes criminal. Placuit tamen, eos, qui rebus commodatis
aliter uterentur quam utendas acceperint, ita furtum committere, si se intel-
ligant id invito donuno &cere, eumque, si intellexisset, non permissurum.
Inst ub. sup. ^ 7.
« Regina v. Holloway, 2 C. & K. 942, 946 ; 1 Den. C. C. R. 870 ; IS Jur.
86 ; McDaniePs case, 8 Sm. & M. 401.
PAST v.] LABOENY. 139
(specifying the things stolen and their value,) of the goods and
chattels of one Q D. then and there being found, feloniously
did stealj take and carry away. And ordinarily these allega-
tions are material to be proved by the prosecutor.
§ 152. The mere name of the prisoner^ as we have already
seen,^ needs no proof, unless it be put in issue by a plea in
abatement. It is only necessary to show his identity with
the person who committed the offence. Nor is the time ma-
terial to be proved, unless the prosecution is limited by statute
to a particular time. But the place must be so far proved, as
to show, that the larceny was committed in the county in
which the trial is had.^ And in legal contemplation, where
goods are stolen in one county and carried into another,
whether immediately or long afterwards, the offence may be
prosecuted in either county ; for every asportation is in law
a new caption.^ This rule, however, is limited to simple lar-
ceny ; for if it be a compound offence, such as stealing from
a store or dwelling-house, or if it be robbery from the person,
ihat offence must be laid and proved in the county where the
store or house was situated, or where the person was
assaulted and robbed.^ Whether the indictment for larceny
can be supported, where the goods are proved to have been
originally stolen in another State, and brought thence into
the State where the indictment is found, is a point on which
the decisions are contradictory.^ But if the original taking
1 Supra, ^ 22.
9 For the reason of this ancient mie, see Co. Litt 125, a ; Stephen on
Plead. S98 - 302.
3 1 Hale, P. C. 607, 508 ; Anon. 4 Hen. 7, 5 5. 6 a. ; Bro. Abr. Coron. p.
171; Commonwealth v, Dewitt, 10 Mass. 154; Cousin's case, 2 Leigh, B.
708 ; The State v, Douglas, 5 Shepl. 193 ; The State v, Somerville, 8 ShepL
14, 19 ; Commonwealth v. Band, 7 Met 475. That the lapse of time be-
tween the first taking and the canying into another ooon^, is not materiali
see Parkin's case, 1 Mood. Cr. Cas. 45.
4 1 Hale, P. C. 507, 508 ; 2 JOale, P. C. 163 ; 1 Hawk. P. C. ch. 83, ^ 9 ;
2 Boss, on Crimes, 116.
5 In the affinnative, see Commonwealth v. Cnllins, 1 Mass. 116; Com-
monwealth V. Andrews, 2 Mass. 14 ; The State v. Ellis, 3 Conn. 185 ; The
140 LAW OF BYIDENCB. [PABT V.
were snch as the common law does not take cognizance of,
as, if the goods were taken on the high seas, an indictment
at common law cannot be sustained in any county.^ It may
here be added, that in order to render the offence cognizable
in the county to which the goods are removed, it is necessary
that they continue specifically the same goods ; for if their
nature be changed after they are stolen in one county and
before they are removed to another, the offence, in the latter
county, becomes a new crime, and must be prosecuted as
such. Thus, where a brass furnace, stolen in one county
was there broken in pieces, and the pieces were carried into
another county, in which kUler county the prisoner was
indicted for larceny of a brass /t^moce there ; he was acquit-
ted upon this evidence ; for it was not a brass furnace^ but
only broken pieces of brass, that he had in that county.^ So,
if a joint larceny be committed in^ one county, where the
goods are divided, and each thief takes his separate share into
another county ; this evidence will not support a joint prose-
cution in the latter county, for there the larceny was several^
§ 153. Nor is it necessary to prove the value of the goods
stolen, except in prosecuting under statutes which have made
the value material, either in constituting the ofience, or in
awarding the punishment But the goods must be shown to
be of some value,^ at least to the owner ; such as, re-issuable
banker's notes, or other notes completely executed but not
People V, Bnrke, 11 Wend. 129 ; The State v. Seay, 8 Stew. 123 ; Hamil-
ton's case, 11 Ohio, 435. In the negatiTe are. The Peo^^e v. Gardiner,
2 Johns. 477 ; The Peq)Ie v. Schenck, Id. 479 ; Simmons's case, 5 Binn. 6 1 7.
And see Simpscm's case, 4 Hmnf^. 456 ; Rex v, Prowes, 1 Mood. Cr. Cas.
849. Bat in Begina v. Madge, 9 C. & P. 29, which was decided npon the
authoritj of Rex v. Prowes, the learned Judge apparently doubted the sound-
ness of that case, in principle.
1 3 Inst 113 ; 2 Buss, on Grimes, 119.
a Rex 17. Holloway, 1 C. & P. 127.
8 Rex V. Bamett, 2 Russ. on Crimes, 117.
4 Rdpoe's case, 2 Leach, 6S0.
r'
PART v.] LABGBHY. 141
delivered or put into circulation ; ^ though to third persons
they might be worthless. It is not essential to prove a pecu-
niary value capable of being represented by any current coin,
or of being sold ; it is sufficient if it be of valuable or econo-
mical utility to the general or special owner.^ If the subject
is a bank note, the stealing of which is made larceny by
statute, it must be proved to be genuine ; ^ and if it be a note
of a bank in another State, the existence of the bank must
also be proved ; and this may be shown, presumptively, by
evidence that notes of that description were actually current
in the country.*
§ 154. Bat the main points, necessary to be proved in every
indictment for this crime, are, 1st, the caption and asportation^
2dly, loith a felonious intent^ 3dly, of the goods and chattels of
another person^ named or described in the indictment. And,
firsts of the caption and asportation. This, in the sense of the
law, consists in removing the goods from the place where they
were before, though they be not quite carried away ; as, if
they be taken from one room into another in the owner's
house, or removed from a trunk to the floor, or from the head
to the tail of a wagon, or if a horse be taken in one part of
the owner's close and led to another, the thief being surprised
before his design was entirely accomplished.^ If it appear
that every part of the thing taken was removed from the
space which that part occupied, though the whole thing were
not removed from the whole space which the whole thing
1 Begina v. Clarke, Buss. & By. 181 ; 2 Leach, 1036 ; Banson'B case, Id.
1090 ; Vyse's case, 1 Mood. Cr. Cas. 218 ; 2 Buss, on Crimes, 79, note (g) ;
Commonwealth v. Band, 7 Met 475.
3 Begina v. Bingley, 6 C. & P. 602 ; Begina v. Morris, 9 C. & P. 347 ;
Begina v, Clarke, Buss. & By. 181.
3 The State v. TiUey, 1 Nott & McC. 9 ; The State v. Cassadoe, Id. 91 ;
The State v. Allen, B. M. Charlt 518.
4 1 Hale, P. C. 508 ; 3 Inst. 108; Bex v. Simaon, J. Eely. 31 ; Bex v.
Coslet, 1 Leach, 236 ; 3 East, P. C. 556 ; Rex v. Amier, 6 C. & P. 344 ; The
State V, )Vilson, 1 Coxe, 439 ; Rex v. Walsh, 1 Mood. Cr. Cas. 14 ; By. &
M. 14. And see Alison's Crim. Law of Scotland, p. 865- 270.
^ The People v. Johnson, 4 Denio, 364.
142 LAW OF EVIDEHCE. [PABTY.
occupied, it is a sufficient asportation.^ On this ground, in
the instances just mentioned, it was thus held. So, where
the prisoner had lifted a bag from the bottom of the boot of a
coach, and was detected before he got it out of the boot, it
was held a complete asportation.^ And it was so held, where
the prisoner ordered the hostler to lead from the stable and to
saddle another man's horse, representing it as his own, but
was detected while preparing to mount in the yard ; ^ for in
each of these cases, the prisoner had, for the moment at least,
the entire and absolute possession of the goods. But, on the
other hand, where the prisoner was indicted for stealing four
pieces of linen cloth, and it was proved that they were packed
in a bale which was placed lengthwise in a wagon, and that
the prisoner had only raised and set the bale on one end, in
the place where it lay, and had cut the wrapper down, but
had not taken the linen out of the bale ; this was resolved,
for the above reason, to be no larceny.^
§ 155. It must also be shown that the goods were severed
from the possession or custody of the owner ^ find in the posses-
sion of the thief though it be but for a moment.^ Thus,
where goods in a shop were tied by a string, the other end of
which was fastened to the counter, and the thief took the
goods and carried them towards the door as far as the string
would permit and was then stopped ; this was held not to be
a severance from the owner's possession, and consequently
no felony.^ And the like decision was given, where one had
1 2 Buas. on CrimeB, 6.
8 Bex V. Walsh, Ry. & M. 14.
3 Bex V. Pitman, 2 C. & P. 423. Allowing a trunk of stolen goods to be
sent as part of his luggage on board a vessel in which the prisoner had
taken passage, has been held a sufficient reception by him of the stolen goods.
The State v. Scovel, 1 Bep. Const Ct. 274.
4 Cherry's case, 2 East, P. C. 556.
s Where the prosecutor's servant took &t from his loft and placed it on a
scale in his candle room, endeavoring to induce the prosecutor to buy it as
fiit sent by the butcher ; this was held a sufficient taking to constitute larceny.
Begina v. HaU, 2 C. & K. 947.
« Anon. 2 East, P. C. 556.
PABT v.] LABOENT. 143
his keys tied to the strings of his pturse, in his pocket, and
the thief was detected with the purse in his hand, which he
had taken out of the pocket, but it was still detained by the
keys attached to the strings and hanging in the pocket^
Upon the same principle, in an indictment for robbery, where
the prosecutor's purse, of which the prisoner attempted to rob
him, was tied to his girdle, and in the struggle the girdle
broke and the purse fell to the ground, but was never touched
by the prisoner, it was ruled to be no taking.' But where
the prisoner snatched at the prosecutor's earring and tore it
from her ear, but in the struggle it fell into her hair, where
she afterwards found it ; this was held a sufficient taking, for
it was once in the prisoner's possession.^
§ 156. The crime being completed by the taking and
asportation with a felonious intent, though the possession be
reteined but for a moment, it is obvious that restiMion of
the goods to the oumerj though it be the result of contrition in
the thief, does not do away the offence. Thus, if one, having
taken another's purse, but finding nothing in it worth steal-
ing, restores it to the owner, or throws it away ; or, the con-
tents being valuable, hands it back to the owner, saying, <' if
you value your purse, take it back again and give me the
contents ; " the taking, and consequently the offence, is nev-
ertheless complete.^
§ 157. In the second place, as to the felonious intent. And
here a distinction is to be observed between larceny and mere
trespcLSSy on the one hand, and malicious mischief on the other.
If the taking, though wrongful, be not fraudulent, it is not
larceny, but is only a trespass ; and ought to be so regarded
by the Jury, who alone are to find the intent, upon consider-
1 'WilkiBscm's case, 1 Hale, P. C. 508.
* 1 Hale, P. C. 688 ; 3 Inst 69. And see Lapier^s case, 2 East, P. C.
557 ; 1 Leach, Cr. Cas. 360.
> Bex V. Lapier, 2 East, P. 0. 657 ; 1 Leach, Cr. Cas. 360.
4 1 Hale, P. C. 638; 8 Inst 69; 2 Ea8t,P. C. 557.
144 LAW OF EVIDKNGK [PABT Y.
ation of all the circumstances. Thus, if it should appear
that the prisoner took the prosecutor's goods openly, in his
presence or the presence of other persons, and not by rob-
bery ; or, having them in possession, avowed the fact before
he was questioned concerning them ; or if he seized them
upon a real claim of title ; or took his . tools to use, or his
horse to ride, and afterwards returned them to the same
place, or promptly informed the owner of the fact; or, having
urgent and extreme necessity for the goods, he took them
against the owner's will, at the same time tendering to him,
in good faith, their full value in money ; or took them by mis-
take, arising from his own negligence ; these circumstances
would be pregnant evidence to the Jury that the taking was
without a felonious intent, and therefore but a mere trespass.^
On the other hand, where the prisoner's sole object was to
destroy the property, from motives of revenge and injury to
the owner, and without the expectation of benefit or gain to
himself, this also is not larceny, but malicious mischief.^ For
it seems to be of the essence of the crime of larceny, that it
be committed lucri causd^ or with the motive of gain or ad-
vantage to the taker ; though it is not necessary that it be a
pecuniary advantage ; it is sufficient if any other benefit to
him or to a third person, is expected to accrue. Thus, where
one clandestinely took a horse from a stable and backed him
into a coal pit a mile off, thereby killing him, that his exist-
ence might not contribute to furnish evidence against an-
other person who was charged with stealing the horse ; this
1 1 Hale, P. C. 509 ; 2 East, P. C. 661 - 668. Where the goods were taken
under a clidm of rigbt, if the prisoner appears to have had any fair color of
title, or if the title of the prosecutor be brought into doubt at all, the Court
will direct an acquittal ; it being improper to settle such disputes in a fonn
of process affecting men's lives, liberties, or reputation. 2 East, P. C. 659.
s Regina v. Godfrey, 8 C. & P. 563, per Ld. Abtnger. In the law of Scot-
land, if the property is taken atoayt with intent to detain it from the owner,
the offence will amount to larceny, though the object was to destroy it, which
18 accomplished. The offence is reduced to malicious mischief, only where
the property is maliciously destroyed without being removed. Alison's
Grim. Law of Scotland, p. 273.
PABT v.] LAROEZTT. 145
was deemed a sufficient lucrum or advantage to constitute
the crime of larceny.^ So, if the motive be to procure per-
sonal ease, or a diminution of labor to the taker ; as, where a
servant, by means of false keys, took his master's provender
and gave it to his horses with that intent ; this also has been
held sufficient* But where a carrier broke open a parcel
entrusted to him, and took therefrom two letters which he
opened and read from motives of personal curiosity, or of
political party zeal, and to prevent them from arriving in due
'season at their destination, this, however illegal, was deemed
no felony.'
§ 158. If it appear that the goods were delivered to the pri-
soner by the toife of the owner^ this is primA facie evidence
that the taking was not felonious ; for as the wife has no
present legal title to the goods of the husband, but only a
contingent expectancy of title, she can exercise no control
over them, except as his agent ; and such agency, and the
consent of the husband, may generally be presumed, in the
absence of other circumstances, where the prisoner, acting in
good faith, received the goods at her hands.^ At most, in
such a case, he would be but a mere trespasser. But this
evidence may be rebutted by showing that the prisoner acted
in bad faith^ and with knowledge that the husband's consent
was wanting, or with reason to presume that the taking was
against his will ; as, if he joined with her in clandestinely
taking the goods away ; or if he take both the wife and the
goods ; or if she, being an adulteress, living with the prisoner,
bring the husband's goods alone to the prisoner, he know-
^ Rex V. Cabbage, R. & Rj. 299; 2 Rius. on Crimes, p. 8. But see Re-
f^sok V. Godfrey, 8 C. & P. 568, where Ld. Abinger seemed to think that
the gain must be expected to accrue to the party himself.
2 Rex o. Morfit, 2 Rnss. on Crimes, p. 8 ; R. & Ry. 807 ; Regina v. Pri*
vett, 2 C. &K. lU.
3 Regina v. Godfrey, 8 C. & P. 668.
4 The People v. Schuyler, 6 Cowen, 572 ; Dalton's Just 504.
VOL. III. 13
146 LAW OF BVIDBNOE. [PABT Y.
ingly receiving them into hijs personal custody and posses-
sion.^
§ 159. If the goods were found by the prisoner, the old rule
was, that his subsequent conversion of them to his own use
was no evidence of a felonious intent in the taking.' Btit this
rule, in modern times, is received with some qualifications.
For if the finder knows who is the owner of the lost chattel,
or if, from any mark upon it, or from the circumstances under
which it was found, the owner could reasonably have been
ascertained, then the fraudulent conversion of it to the find-
er's use is sufficient evidence to justify the Jury in finding
the felonious intent, constituting a larceny.^ On this ground,
hackney-coachmen and passenger-carriers have been found
guilty of larceny, in appropriating to their own use the parcels
and articles casually left in their vehicles by passengers ; ^
servants have been convicted for the like appropriation of
money or valuables, found in or about their masters' houses ;^
and so it has been held, where a carpenter converted to his
own use a sum of money, found in a secret drawer of a
bureau, delivered to him to be repaired.^ In a word, the
omission to use the ordinary and well known means of dis-
covering the owner of goods lost and found, raises a presump-
tion of fraudulent intention, more or less strong, against the
finder, which it behoves him to explain and obviate ; and this
1 Ibid. ; Bex v. Tolfree, 1 Mood. Cr. Cas. 843 ; Regina v. ToUett, 1 Car.
& M. 113; Regina t;. Rosenberg, 1 Car. & K. 238. And see 1 Russ. on
Crimes, 33, S3 ; 3 Ross, on Crimes, 87 ; Regina v, Thompson, 14 Jar. 488 ;
1 Den. Cr. Cas. 549.
S 3 Inst. 108.
3 MerrjT v. Green, 7 M. & W. 623 ; The State v. Weston, 9 Conn. 527 ;
Regina v. Thnrbom, 3 C. & E. 881. Bat see The People v. Cogdell, 1 Hill,
94.
4 Rex V. Lamb, 2 East, P. C. 664; Rex v. Wynne, lb. ; Rex o. Seats,
1 Leach, Cr. C. 415, n.
5 Regina v. Kerr, 8 C. & P. 176.
6 Cartright v. Green, 8 Yes. 405 ; 3 Leach, Cr. C. 958.
PARTY.] LABOEinr. 147
is most readily and naturally done by evidence that he endea-
Yored to discover the owner, and kept the goods safely in his
custody until it was reasonably supposed that he could not
be found ; or that he openly made known the finding, so as
to make himself responsible for the value to the owner, when
he should appear.^ In cases of this class, it is material for
the prosecutor to show that the felonious intent was contem«
poraneous with the finding ; for if the prisoner, upon finding
the article, took it with the intention of restoring it to the
owner when discovered, but afterwards wrongfully converted
it to his own use, this is merely a trespass, and not a felony.^
And the principle is the same, where he came to the posses-
sion in any other lawful manner ; as, for example, where the
goods were inadvertently left in his possession, or where he
took the goods for safety, during a conflagration, or the like,
but afterwards wrongfully concealed and appropriated them
to bis own use.^
160. A felonious intent may also be proved by evidence
that the goods were obtained from the owner by stratagenij
artifice^ or fraud. But here an important distinction is to be
observed between the crime of larceny, and that of obtaining
goods by false pretences. For supposing that the fraud-
1 2 East, P. C. 665 ; Tyler's case, Breese, 227 ; The State v, Fex^ason,
2 McMullan, 502.
2 Milbume's case, 1 Lewin, 251 ; Rex v. Leigh, 2 East, P. C. 694 ; The
People V. Anderson, 14 Johns. 294. The rule of the Roman Civil Law sub-
stantially agrees with what is stated in the text Qui alienum quid jacens,
iucri faciendi causd sustulit, furti obstringitur, sive scit cujus sit, sive ignora-
vit; nihil enim ad furtum minuendum facit, qudd cujus sit ignoret Qndd si
dominus id derelinquit, furtum non fit ejus, etiamsi ego furandi animum habu-
ero ; nee enim furtum fit, nisi sit [scit] cui fiat ; in proposito autem nulli fit ;
quippe cum placeat Sabini et Cassii sententia existimantium, statim nostram
esse dednere rem, quam derelinquimus. Sed si non fuit derelictum, putavit
tamen derelictum, furti non tenetur. Sed st neque fuit, neque putavit,
jacens tamen tulit, non ut lucretur, sed redditurus ei cujus fuit, non tenetur
fiirtL Dig. lib. 47, tit. 8, 1. 48, § 4 - 7.
3 Rex V. Leigh, 3 East, P. C. 694 ; The People v. McGarreo, 17 Wend.
460.
148 LAW OV EVIDENCE* [PABT V.
ulent means used by the prisoner to obtain possession of
the goods were the same in two separate cases, but in the
one case the owner intended to part with his property abso-
lutely, and to convey it to the prisoner, but in the other he
intended only to part with the temporary possession, for a
limited and specific purpose, retaining the ownership in him-
self; the latter case alone would amount to the crime of lar-
ceny, the former constituting only the offence of obtaining
goods by false pretences. Thus, obtaining a loan of silver
money, in exchange for gold coins to be sent to the lender
immediately, but which the prisoner had not, and did not
intend to procure and send, was held no felony, but a misde-
meanor ; ^ and so it was held, where the prisoner obtained
the loan of money by means of a letter, written by himself in
the name of another person known to the lender.^ But where
goods were obtained from the owner^s servant, the prisoner
falsely pretending that he was the person to whom the ser-
vant was directed to deliver them, it was held to be larceny.'
For in the two former cases, the owner intended to part with
his money ; but in the latter case, the taking from the servant
was tortious, he having only the care and custody of the
goods for a special purpose. The rule is the same, where
goods are fraudulently taken away during the pendency of a
sale, but before it is completed by delivery;*. or where they
are obtained under the guise of receiving them in pledge ; ^
the owner, in these cases, not intending, at the time, to divest
himself of all legal title to the goods ; but the prisoner in-
tending to deprive him of that title.
1 Bex V. Coleman, 2 Eaat, P. C. 672 ; 1 Leach, Cr. Gas. 339, n. And see
Mowrej v. Walsh, 8 Cowen, 238.
9 Bex V. Atkinson, 2 East, P. C. 678.
3 Rex V. WUkins, 2 East, P. C. 673.
4 Bex V. Sharpless, 1 Leach, Cr. Gas. 108 ; 2 East, P. C. 675. And see
Bex V, Aikles, 1 Leach, Cr. Gas. 830.
5 Bex V. Patch, 1 Leach, Cr. Cas. 273 ; 2 East, P. C. 678 ; Bex v. Moore,
1 Leach, Cr. Cas. 354 ; Bex v. Watson, 2 Leach, Cr. Cas. 730 ; 3 East, P.
G. 679, 680.
PAST v.] LAHOENT. 149
§ 161. As every larceny includes a trespass, which involves
a violation of another's possession, it is essential for the prose-
cator to prove that the goods y/eie the property of the person
named as the owner^ and were taken from his possession*
The property may be either general or special, and the pos-
session may be actual or constructive ; proof of either of these
being sufficient to support this part of the indictment. For
the general ownership of goods draws after it the legal pos-
session, though they, were in the actual custody of a servant
or agent ; and the lawful possession, with a qualified pro-
perty, as bailee or agent, is sufficient proof of ownership,
against a wrong doer.^ But it must appear that the goods
were stolen from the prosecutor ; and if he, being a witness,
cannot swear to the loss of the articles alleged to have been
stolen from him, the prisoner must be acquitted.^ And if
they were stolen by a person unknown, but after a lapse of
time were found in the possession of the prisoner, who gave
a reasonable and probable account of the manner in which he
came by them, it will be incumbent on the prosecutor to
negative this explanation.^
§ 162. If the goods are in the hands of a bailee of the owner.
1 If it appear that the owner is known hj two names, indifferently, as for
example, Elizabeth and Betsey, the indictment will be proved, though only
one of the names be stated therein. The State v. Godet, 7 Ired. 210. But
an indictment for stealing the goods of A., is not supported by evidence that
they were the goods of A. & B. who were partners, even though they were
in A.'s actual possession. The State v. Hogg, 3 Blackf. 326 ; Common-
wealth V, Trimmer, 1 Mass. 476. If the property is alleged to be in A. B.,
and it is proved to be in A. B. junior, it is sufficient The State v. Grant,
9 Shepl. 171.
2 2 East, F. G. 554 ; 1 Hawk. F. C. ch. 33, ^ 2, 3. Hence the general
owner may be guilty of larceny, by stealing his own goods in the possession
of his agent or bailee, with intent to chaige the latter with the value.
3 East, P. C. 558 ; Pahner's case, 10 Wend. 165 ; Wilkinson's case, R. & Ry.
470.
3 Dredge's case, 1 Gox, Gr. Gas. 335. And see Hall's case, Id. 231 ; The
State V. Furlong, 1 Applet. 225.
4 Begina v. Growhurst, 1 Gar. & Kir. 370; Hall's case, supra; The State
V. Furlong, supra. And see 2 East, F. G. 656, 657 ; Supra^ ^ 32.
13 •
150 LAW OF BYIDBKCB. [PABT V.
and the bailee fraudulently applies them to his own use
during the continuance of the bailment, this is not larceny,
because here was no technical trespass, the possession of the
bailee being lawful and exclusive, as against the general
owner. But to constitute larceny in such a case, it is incum-
bent on the prosecutor to show that the contract of bailment
was already terminated, either by lapse of time, or other cir-
cumstances. Ordinarily, the bailment, primdfadej is proved
by the prisoner, by evidence that the goods were legally in
his possession at the time of the unlawful appropriation
charged. This proof may be rebutted, 1st, by showing that
the prisoner, though he had the custody of the goods, was a
mere servant of the owner, having no special property therein,
and being under no special contract respecting them ; but his
possession being that of his master ; as, where a butler has
charge of his master's plate, or a servant is sent on an errand
with his master's horse, or goods, or money, or receives goods
or money for his master, from another person, which he fraud-
ulently applies to his own use ; this is larceny.^ Or, 2dly, it
may be rebutted by showing, that the prisoner originally
obtained the possession of the goods with a felonious intent,
by fraud and deceit^ or by threats or duress ; as, if he hired a
horse, under pretence of a journey, but with intent, at the
time, to convert him to his own use ; or the like.^ In such
•
cases, it must appear that the owner had no intention to part
1 2 East, P. C. 564-570 ; 1 Hale, P. C. 506, 667, 668 ; United States v.
Clew, 4 Wash. 700 ; Commonwealth v. Brown, 4 Mass. 580, 586 ; The State
V. Self, 1 Bay, 24d ; The People t^. Call, 1 Denio, 120 ; 2 Russ. on Crimes,
153 - 166 ; Regina v, Hajward, 1 Car. & Kir. 518 ; Regina v, Goode, 1 Car.
& M. 583 ; Regina v. Beaman, Id. 595 ; Regina v. Jones, Id. 611 ; Rex v.
licNamee, 1 Mood. Cr. Cas. 868 ; Regina v. Watts, 14 Jar. 870; 1 Eng.
Law & Eq. Rep. 558 ; Rex v. Spear, 2 Leach, Cr. Cas. 825 ; 2 Ross, on Crimes,
155, 156 ; Regina v. Hawkins, 1 Den. C. C^ 584 ; 14 Jur. 513 ; 1 Eng. h.
& Eq. R. 547.
2 Rex V. Pear, 2 East, P. C. 685 ; Rex v. Charlewood, Id. 689 ; Rex v.
Semple, Id. 691 ; 1 Leach, Cr. Cas. 456 ; 2 Leach, Cr. Cas. 353, 470; Stark-
ie's case, 7 Leigh, 752 ; J. Eely. 82; Blant's case, 4 Leigh, 689; The State
V. Gorman, S N. & McC. 90 ; Bank's case, Russ. &R. 441 ; Regina v. Brooks,
8 C. & P. 295 ; Regina v. Thristle, S C. & E. 848.
PAST v.] LABOEKT. 151
with his ultimate title or property in the goods, but only to
part with the possession ; for if he was induced by fraud to
sell the goods, the prisoner, as we have seen, is only guilty of
a misdemeanor.^ Or, 3dly, the evidence of bailment may be
rebutted by proof that the contract had been determined by the
wrongful act of the bailee^ previous to the act of larceny. A
familiar illastration of this point, is where a carrier breaks open
a box or package entrusted to him. Here the breaking open
of the box is an act clearly and unequivocally evincing his
determination and repudiation of the bailment, and his cus-
tody of the goods becomes thereby in law the possession of
the owner ; after which, his conversion of part or all of the
goods to his own use is a felonious caption and asportation
of the goods of another, which constitutes the crime of lar-
ceny. If he sells the entire package, in its original state,
without any other act, though the privity of contract is
thereby determined, yet here is no caption and asportation of
that which at the time was the entire property of another,
but only a breach of trust.^ And where several articles con-
L Supra, f 160. And see Bex v. Robeon, B. & Ry. 413; Bex v. Wil-
I, 6 C.& F. 890 ; Begina v. Wilson, 8 C. & F. Ill ; Begina v. Bodway,
9 a & P. 784.
s The distinction between the two cases is clear, though exceedingly re-
fined ; and is well explained by Mr. Starkie. " The distinction," he observes,
^ which has constantly been recognized, although its soundness has been doubt-
ed, seems to be a natural and necessary consequence of the simple principle
upon which this branch of the Utw rests ; and although it may, at first sight,
appear somewhat paradoxical and unreasonable, that a man should be less
guilty in stealing the whole than in stealing a part, yet such a distinction will
appear to be well warranted, when it is considered how necessary it is to
preserve the limits which separate the offence of larceny from a mere breach
of trust, as clear and definite as the near and proximate natures of these
offences will permit; and that the distinction results from a strict appli-
cation of the rules which distinguish those offences. If the carrier were
guilty of felony in selling the whole package, so would every other
bailee or trustee, and the offence of larceny would be confounded with
that of a mere breach of trust, and indefinitely extended. On the other
hand, ih taking part of the goods after he has deteimined the privity of con-
tract| the case comes within the nmple definition of larceny, for there is a
felonious caption and asportation of tiie goods of another, which stands totally
152 LAW OV BVIDENOB. [PART Y.
stitute the subject of an entire contract of bailment, snch as,
bags of wheat, to be kept in a warehouse,^ barilla or corn, to
be ground,^ several packages, or a quantity of staves, to be
carried,^ or garments to be sold,^ the abstraction of one of the
parcels or articles, or of a portion of the bulk, and converting
it to the use of the bailee, has been held to amount to a
breaking of bulk, sufficient to terminate the bailment, and to
constitute larceny.^ Or, 4thly, the evidence of bailment, may
clear of any bailment -It is true that the sale and delivery of the whole
package by the carrier, being inconsistent with the object of the bailment,
determines the privity of contract; bat then the question arises, what caption
and asportation constitute the larceny, for these are in all cases essential to
the offence. A mere intention on the part of the carrier to convert the goods,
unaccompanied by any overt act, whereby he disaffirms the contract, is insuf-
ficient ; and the act of conversion itself, such as the deliveiy of the whole of
the entire package to a purchaser, is insufficient, because it is merely con-
temporaneous with the extinction of the privity of contract, which is not de-
termined, except hj the conversion itself; but if the package be first broken,
and by that overt act the contract be determined, a subsequent caption and
asportation, either of part, or, as it seems, of the whole of the goods, is a com-
plete Urceny within the definition, unaffected by any bailment This dis-
tinction is explained by Lord Hale upon the principle above stated. Hale,
504, 505 ; East, P. C. 697. Kelynge, C. J. explains it upon the ground of a
presumed previous felonious intention on the part of a carrier, when he first
took the goods ; but this is not satisfactory, since the same presumption would
arise when the carrier disposed of the whole of the package." 8 Stark. Evid.
448, n. (ar>) And see 1 Hale, P. C. 504, 505 ; 2 East, P. C. 664, 685, 693,
694, 697, 698 ; Rex v. Brazier, R. & Ry. 837 ; 2 Russ. on Crimes, 59 ; Rex
tr. Madox, R. & Ry. 92 ; Cheadle v. Buell, 6 Ohio, R. 67 ; Rex v, Jones,
7 C. & P. 151 ; Regina v. Jenkins, 9 C. & P. 38.
1 Brazier^s case, supra.
2 Commonwealths. James, 1 Pick. 875; 1 Roll. Abr. 73.
3 Commonwealth v. Brown, 4 Mass. 580 ; Dane v. Baldwin, 8 Mass. 018 ;
Rex V. Howell, 7 C. & P. 325. So is the law of Scotland. Alison's Crim.
Law of Scotland, p. 252.
4 Regina v. Peyser, 9 Den. C. C. R. 933 ; 6 Cox, C, C. 241.
^ The Roman Law proceeded on a similar principle. Si rem apud te
deporitam, furti faciendi causA. contrectaveris, desino possidere. Dig. lib.
41, tit. 2, 1. 8, § 18. See, ace. Regina v, Poyser, 2 Den. C. C. R. 288 ;
5 Cox, C. C. 241 ; 8 Chitty, Crim. L. 920 ; Whart. Am. Crim. Law, 571 -
576.
PART v.] LARCENT. 153
be rebutted, by proof that the contract had previously been
terminaled by performance^ according to the intent of the par-
ties ; as, where goods, sent by a carrier, had reached their
place of destination, and been there delivered ; but after-
wards were stolen by the carrier.^ But it is to be noted, that
proof of the delivery, or that the bailee had parted with the
possession, is material ; for if goods are borrowed or hired for
a special purpose', as, for example, a horse to go to a particu-
lar place, and after that purpose is accomplished, and before
the goods are returned to the owner, the hirer or borrower,
upon a new and not an original intention, fraudulently con-
verts them to his own use, this is held not to amount to the
crime of larceny.^
§ 163. By the common law, neither wild animals, unre-
claimed, and unconiined, nor things annexed to or savoring of
the really, and unsevered, could be the subject of larceny. If
the animal were already dead, or reclaimed, or captured and
confined, it should be so alleged in the indictment ; for if the
allegation be general, for stealing such an animal, which is
known to heferce naturce, it will be presumed to have been
alive and at large ; and evidence of the stealing a dead or
tamed animal, will not support the indictment.^ And in
regard to things once part of the realty, it must be proved
that they were severed before the act of larceny was commit-
ted upon them. If the severance and asportation were one
^continued act of the prisoner, it is only a trespass ; but if the
severance were the act of another person, or if, after a sever-
ance by the prisoner, any interval of time elapsed, after which
1 1 Hale, P. C. 504, 505.
9 Bex V. Banks, R. & Ry. 441, oyerruling Bex v. Charlewood, 2 East, P.
C. 690 ; 1 Leach, Cr. Cas. 456, as to this point. And see 2 Buss, on Crimes,
56, 57 ; Begina v. Thristle, 2 C. & K. 842.
3 Bough's case, 2 East, P. C. 607 ; Edwards's case, R. & B. 497 ; Bex v.
Halloway, 1 C. & P. 128 ; Id. 127, note (h.) And see Commonwealth v.
Chace, 9 Fick. 15; Bex v. Brooks, 4 C. & P. 181 ; 1 Hawk. P. C. ch. S3*
§ 26, p. 144.
154 LAW OV EYIDENCB. [PABT V.
he returned and took the article away, the severance and
asportation being two distinct acts, it is larceny.^
1 1 Hale, P. C. 510 ; 3 East, P. C. 587; Lee v. Risdon, 7 Taunt 191, per
Gribbs, C. J. The Boman Law does not seem to recognize this distinction,
but adjudges the act of severance and asportation to be theft in both cases.
Eorum qaao de fundo tolluntur, utputa arborum, yel lapidum, vel arenas,
vel fructuum, quos quis fraudandi animo deceipsit, furti agi posse nulla du-
bitatio est Dig. Ub. 47, tit. 2, 1. 35, § 2.
PABT v.] UBXL. 155
LIBEL.
§ 164. The difficulty of defining this offence at common
law has often been felt and acknowledged. Lord Lyndhurst
thought it hardly possible to define it ; observing that any
definition he had ever seen was faulty, and wanting in the
requisites of a logical definition, either in its vagueness and
generality, or in its omission of essential particulars.^ Yet
all text writers on this subject have undertaken to define or
at least to describe it, and this with a degree of precision,
probably sufficient for all practical purposes. According to
Mr. Russell, and to the authorities to which he refers, the
crime of Libel and Indictable Slander is committed by the
publication of writings, blaspheming the Supreme Being, or
turning the doctrines of the Christian religion into contempt
and ridicule ; — or tending, by their immodesty, to corrupt
the mind, and to destroy the love of decency, morality, and
good order; — or wantonly to defame or indecorously to ca-
lumniate the economy, order and constitution of things which
make up the general system of the law and government of
1 See his testimony before the Lords' committee, in Cooke on Defamation,
App. No. 3, p. 483. Mr. Hamilton yentored to define it as ^* a censorious or
ridicnling writing, picture, or sign, made with a mischievous and malicious
intent towards government, magistrates, or indiyiduals." Arguendo, in The
People V, Croswell, 8 Johns. Cas. 337, 354. This was subsequently approved
hj the Court, as a definition " drawn with the utmost pTBcision." See Steele
V. Southwick, 9 Johns. 215 ; Cooper v. Greeley, 1 Denio, 347. Mr. Staride,
in more general terms, defines the ofi*ence as " the wilful and unauthorized
publication of that which immediately tends to produce mischief and incon-
venience to society." But this comprehensive definition he afterwards ex-
pands into the several species of this crime, which he describes with suffi-
cient particularity. See 3 Stark, on Slander, p. 129.
156 LAW 07 BVIDBNOE. [PA&T Y.
the country ; — to degrade the administration of governmenti
or of justice ; -^ or to cause animosities between our own and
any foreign government, by personal abuse of its sovereign,
its ambassadors, or other public ministers ; — and by mali-
cious defamations, expressed in printing or writing, or by
signs or pictures, tending either to blacken the memory of one
who is dead, or the reputation of one who is living, and
thereby to expose him to public hatred, contempt, and ridi-
cule.^ This descriptive catalogue embraces all the several
species of this offence which are indictable at common law ;
all of which, it is believed, are indictable in the United
States, either at common law, or by virtue of particular
statutes.
§ 164. In several of the United States, this offence, in its
more restricted acceptation, as committed against an indivi-
dual, has been defined by stattUe. Thus, in Maine, it is en-
acted, that ^< a libel shall be construed to be the malicious
defamation of a person, made public either by any printing,
writing, sign, picture, representation or efEgy, tending to pro-
voke him to wrath, or expose him to public hatred, contempt,
or ridicule, or to deprive him of the benefits of public confi-
dence and social intercourse ; or any malicious defamation,
made public as aforesaid, designed to blacken and vilify the
memory of one that is dead, and tending to scandalize or pro-
voke his surviving relatives or friends." ^ Definitions of the
like import, are found in the statute books of some other
States;^ and would doubtless be recognized in all, as ex-
pressive of the law of the land ; the common law, in regard
to what constitutes a libel, being adopted in all the States,
1 1 Rus8. on Crimes, 980. And see 9 Starkie on Slander, p. 129-294 ;
Cooke on Defamation, p. 69-80; Holt on Libels, p. 74-949; 9 Kent,
Comm. 16-^6.
9 See Maine, Rev. Stat 1840, ch. 165, § 1.
3 Such, in substance, are the definitions in Iowa, Rev. Code of 1851, cli.
161, art. 9767 ; Arkansas, Rey. Stat 1837, Div. 8, ch. 44, art 9, § 1, p.
980 ; Georgia, Prince's Dig. p. 643, 644 ; Hotchk. Dig. p. 739 ; California^
Stat 1850, ch. 99, § 190 ; Illinois, Rev. Stat 1845, Crim. Code, § 190.
PABT v.] IiIBBL. 157
except so far as it may have been altered by statutes or con-
stitntional provisions.^
§ 166. The imUctmetU for this offence sets forth the libel-
lous writing or act, — the malicious intent^ — its object^ or ihe
person whom it was designed to disgrace or injure, — the
publication of the writing, with proper innuendoes^ referring the
libellous matter to its alleged object, — and the place of pub*
lication. The place, however, is not essential to be proved,
except where it is locally descriptive of the offence.^
§ 167. In the case of a wrUlen or printed libelj the proof
must agree with the indictment in every particular essential
to the identity, such as dates, names of persons, and the
precise words used, a variance in any of these particulars
being fatal.^ But a literal variance alone is not fatal, where
the omission or addition of a letter does not make it a differ-
ent word.* Thus " undertood," for " understood," ^ " reicevd,'*
for '< received," ^ and the like, arc immaterial variances ; and a
diversity in the spelling of a' name is not material, where it is
idem sonanSj as " Scgrave " for " Seagrave." ^ This rule ap-
plies more strictly to cases where the libellous writing is set
forth in hcec verba^ as it ought always to be, where it is in the
1 Dexter v. Spear, 4 Mason, 115 ; White v. Kichok, 3 How. S. C. R. 266,
891; Commonwealth V. Clapp, 4 Mass. 163, 168; Usher v. Severance,
2 Applet 9 ; Hillhouse v. Dunningt 6 Conn. 39 1 ; Steele v, Southwick,
9 Johns. 814 ; Colby o. Reynolds, 6 Verm. 489; McCorkle v. Blnns, 5 fimn.
340; The State v. Farley, 4 McCord, 817; Torrance v. Hurst, Walker,
403 ; Armentront v, Moranda, 8 Blackf. 420 ; Newbraugh v. Curry, Wright,
47; Taylor v. Geoipa, 4 Geo. R. 14; The State v. White, 6 Ired. 418 ;
Tired. 180; Robbins v. Tread way, 8 J.J. Marsh. 540; 1 Kent, Comm.
Lect 24, p. 620, (7th ed.) ; The State v. Henderson, 1 Rich. 179.
9 Supra^ ^ 12.
3 See ArUey Vol. 1, ( 56, 58, 65, et seq. ; 2 Russ. on Crimes, 788.
^ Regina v. Drake, 2 Salk. 660, per Powers, J., approved, as ** the tme
disttnction," per. Ld. Mansfield, Cowp. 230.
& Rex V. Beach, Cowp. 2*29.
6 Rex o. Hart, 3 East, F. C. 977 ; 1 Leach, Cr. C. 178.
7 Williams v. Ogle, 8 Stra. 889.
VOL. HL 14
158 LAW OF EVIDBNOB. [PART V.
power of the prosecutor. But where the paper is in the pri-
soner's exclusive possession, or has been destroyed by him,
and perhaps in some other cases, where its production is out
of the power of the prosecutor, (in all which cases it should
be so stated in the indictment,) inasmuch as it may be suffi-
cient to state the purport or substance of the libel, secondary
evidence may be received of its contents.^
§ 168. In the proof of malice^ it is not necessary, in the
opening of the case on the part of the government, to adduce
any particular evidence to this point, where the publication
or corpus delicti^ as charged, is in itself defamatory ; for in
such cases the law infers malice, unless something is drawn
from the circumstances attending it to rebut that inference.*
But where the intent is equivocal or the act complained of ia
not plainly and of itself defamatory, some substantive evi-
dence of malice should be offered.^ Such evidence is also
necessary on the part of the prosecution, where the defence
set up to the charge of a libellous publication is, that it was
privileged.^ If the communication was of a class absolutely
1 Commonwealth v. Hougbton, 8 Mass. 107, 110. And see U. States v.
Britton, 3 Mason, 464, 467, 468 ; Johnson v. Hudson, 7 Ad. & £L 283, n.
9 Rex V. Creevej, 1 M. & S. 273, 282 ; Rex v. Ld. Abingdon, 1 Esp. 226 ;
Jones 17. Stevens, 11 Price, 335; White v. Nichols, 3 How. S. C. Rep. 291.
Malice, in this connection, does not necessarily imply personal ill wilL The
Commonwealth v. Bonner, 9 Met 410.
3 Stuart V. LoTell, 2 Stark. R. 93. See, as to the proof of malice, Ante^
Vol.2, Hi ^•
4 White V. Nichols, 3 How. S. C. Rep. 286. In this case, privileged com-
munications were distributed, by Mr. Justice Daniel, into four classes.
« 1. Whenever the author and publisher of the alleged slander acted in the
hond fide discharge of a public or private duty, legal or moral ; or in the pro-
secution of his own rights or interests. For example, words spoken in confi-
dence and friendship, as a caution ; or a letter written confidentially to per-
sons who employed A. as a solicitor, conveying charges injurious to his
professional character in the management of certain concerns which they
had intrusted to him, and in which the writer of the letter was also interested.
2. Any thing said or written by a master in giving the character of a ser-
vant who has been in his employment 3. Words used in the course of a
legal or judicial proceeding, however hard they may bear upon the party of
PARTY.] LIBEL. 159
privileged, proof of actual malice is inadmissible, as it consti-
tutes no answer or bar to the privilege.^ Such is the case of
matter necessarily published in the due discharge of official
whom they are used. 4. Publications duly made in the ordinary mode of
parliamentary proceedings, as a petition printed and delivered to the mem*
bers of a committee appointed by the House of (Commons to hear and exa-
mine grieyances." Ibid. The learned Judge, in delivering the opinion of
the Court, concluded the first part of his elaborate investigation with the fol-
lowing comprehensive statement of its results : — ** The investigation has
conducted us to the following conclusions, which we propound as the law
applicable thereto. 1. That eveiy publication, either by writing, printing,
or pictures, which chains upon or imputes to any person that which renders
him liable to punishment, or which is calculated to make him infamous, or
odious, or ridiculous, ia prima facie a libel, and implies malice in the author
and publisher towards the person concerning whom such publication is made.
Proof of malice, therefore, in the cases just described, can never be required
of the party complaining, beyond the proof of the publication itself } justifica-
tion, excuse, or extenuation, if either can be shown, must proceed from the
defendant 2. That the description of cases recognized as privileged com-
munications, must be understood as exceptions to this rule, and as being
founded upon some apparently recognized obligation or motive, legal, moral,
or social, which may fidrly be presumed to have led to the publication, and
therefore primdfacie^ relieves it from that just implication from which the
general rule of the law is deduced. The rule of evidence, as to such cases,
is accordingly so far changed as to impose it on the plaintiff to remove those
presumptions flowing from the seeming obligations and situations of the par-
ties, and to require of him to bring home to the defendant the existence of
malice as the true motive of his conduct Beyond this extent no presump-
tion can be permitted to operate, much less be made to sanctify the indul-
gence of malice, however wicked, however express, under the protection of
legal forms. We conclude then, that malice may be proved, though alleged
to have existed in the proceedings before a court, or legislative body, or any
other tribunal or authority, although such court, legislative body, or other
tribunal, may have been the appropriate authority for redressing the griev-
ance represented to it ; and that proof of express malice in any written pub-
lication, petition, or proceeding, addressed to such tribunal, will render that
publication, petition, or proceeding, libellous in its character, and actionable,
and will subject the author and publisher thereof to all the consequences of
libel. And we think that in every case of a proceeding like those just enu-
merated, falsehood and the absence of probable cause will amount to proof
of malice." Ibid. p. 291. As to privileged communications, see further)
ante, VoL 2, ^421, 422.
. * Cooke on Defamation, p. 148.
160 LAW Oir BVIDBNCB. [PART V.
or public duty. But where the publication is only primd
facie privileged, as in the case of a character given of a ser-
vant, or of advice confidentially given, or the like, the defence
of privilege may be rebutted by proof of actual malice.*
Thus, it may be shown, that the same communication was
voluntarily made by the defendant on other occasions, when
it was not called for ; or that he has at other and subsequent
times published other libellous matter relating to the same
subject, or other copies of the same libel.^ Other publica-
tions also, contained in .the same paper, and relating to the
same libel, or expressly referred to in the writing set forth in
the indictment and explanatory of its meaning, may be read
in evidence, they being in the nature of parts of the resgesUSj
and showing the real meaning and intent of the party .^
§ 169. Though the indictment for a libel in writing or
print should charge the defendant with having composed^
written^ printed^ and published it, yet it is not necessary to
prove all these ; for it is not perfectly clear that it is legally
criminal to compose and write libellous matter if it be not
published ; ^ and it is well settled that the charge will be sup-
ported by proof of the publication alone,^ this being of the
1 Sands v, Robinson, 13 S. & M. 704.
» Rogers v, Clifton, 3 B. & P. 687 ; Bromage v. Proaser, 4 B. & C. 247,
256 ; Stuart t;. Lovell, S Stark. R. 93 ; Chubb r. Westley, 6 C. & P. 436 ;
Finnerty v. Tipper, 2 Campb. 72 ; Thomas v, Croswell, 7 Johns. 264, 270 ;
Bex v. Pearce, 1 Peake, Cas. 75 ; Plunkett v. Cobbett, 5 £sp. 136.
' Bex V. Lambert, 2 Campb. 398 ; Cook v, Hughes, R7. & M. 112 ; Rex v.
Slaney, 5 C. & P. 213.
4 In Rex r. Paine, 5 Mod. 163, 167, it was held, that the making of a libel
was an offence, though it be never published, in Rex v. Burdett, 4 B. &
Aid. 95, Ld. Tenterden, and Holroyd, J., were of opinion that the writing of a
libel, with intent to defeme, was of itself a misdemeanor ; though the latter
seemed to lay stress on the fact of a subsequent publication, as evidence of
the intent Best, J., said nothing on this point, as it was not necessary to the
judgment; and Bayley, J., after stating it, observed that the case seemed
hardly ripe for discussing that question. See also 1 Buss, on Crimes, 248 ;
2 Stark, on Slander, 812 ; 1 Hawk. P. C. ch.73, ( 11 ; floscoe, Crim.Evid.
654.
^ Rex V. Hunt, 2 Campb. 583 ; Bex v. Williams, Id. 646.
PABT v.] LIBEL. 161
essence of the offence* Publication consists in communi-
cating the defamatory matter to the mind of another, whether
it be privately to the party injured alone, with intent to pro-
voke him to a breach of the peace,^ or to others, with intend
to injure the individual in question, or to perpetrate more
extensive mischief. And, generally speaking, all persons,
who knowingly participate in the act of publication, are
equally liable to prosecution for this offence.
§ 170. It will be sufficient, therefore, in proof of publicch
tionj to show that the defendant wrote the libel which is
found in another's possession, until this fact is otherwise acr
counted for ; ^ and if a letter, containing a libel, have a post-;
mark upon it, and the seal be broken, this is primd fade
evidence of its publication.^ If the libel be in a newspaper,
the act of printing it, if not otherwise explained by circum-
stances ; ^ delivering a copy to the proper officer at the stamp-
office,^ and payment to the stamp-officer for the duties on the
advertisements in the same paper,^ have each been held suffi-
cient evidence of publication. Proof that the printed libel
was sold in the shop of the defendant, though it were with-
out his actual knowledge, the sale being by a servant^ in his
absence, is sufficient evidence of publication by the master ;
unless he can rebut it by proof that the sale was not in the
ordinary course of the servant's employment, and that the
book was clandestinely brought into the shop and sold, or,
that the sale was contrary to his express orders, and that
some deceit or surprise was practised upon him ; or that he
1 1 Hawk. P. C. ch. 73, ^ 11 ; 1 Buss, on Crimes, 244, 250 ; The State v
Aveiy, 7 Conn. 267, 269 ; Bex v. Wegener, 3 Stark. R. 245 ; Hodges p.
The State, 5 Hampli. 112.
* Bex V. Beare, 1 Ld. Raym. 414 ; Lamb's case, 9 Co. 59; Begina v.
Ixnrett, 9 C. & P. 463.
3 Shipley v. Todhunter, 7 C. & P. 680 ; Warren v. Warren, 1 CM. &B.
250. And see Ante, Vol. 1 , § 40.
4 Baldwin v. Elpbinstone, 2 W. Bl. 1038.
5 Rex V. Amphlit, 4 B. & C. 35.
6 Cook V. Ward, 6 Bing. 409.
14*
163 LAW OV BVIDKNCB. [PABT T.
was absent, under such circumstances as utterly negatived
any presumption of privity or connivance on his part; as, for
example, if he were in prison, to which his servants could
have no access, or the like.^ In these cases, the agency of
the servant may be proved by evidence of his general employ-
ment in that department of the defendant's business ; but
where the act ^f publication, whether by sale or by writing
and sending a letter, was done by another not thus generally
employed, the agency must be particularly proved.^
§ 171. If the evidence of publication be an admission of the
defendant that he was the author of the libel, " errors of the
press and some small variations excepted," the burden of
proof is on the defendant to show that there were material
variances.* He who procures another to publish a libel, is
guilty himself of the publication ; and he who disperses a
libel is also guilty of the publication, though he did not know
its contents. The apparent severity of this rule, and of that
which renders the owner of a shop responsible as the pub-
lisher of libels sold therein without his knowledge, is justified
on the score of high public expediency, or necessity, to pre-
vent the circulation of defamatory writings, which, otherwise,
might be dispei;^ed with impunity.*
§ 172. Evidence that the defendant dictated the libel to an-
other^ or communicated it verbally to him, with a view to its
1 Ante, YoL 1, § 86, and cases there cited; Holt on Libels, 393-396 ;
Woodfairs case, 1 Hawk. P. C. ch. 73, § 10, n. ; 3 Stark, on Slander, 30 -
84 ; Commonwealth v, Buckingham, 3 Wheeler, Cr. C. 198 ; Thachex^s Cr.
C.39.
» Harding ». Greening, 8 Taunt 42 ; Ante^ Vol. 3, tit. Agknct, ^ 64,
65.
8 Bex V. Hall, 1 Stra. 416.
4 1 Hawk. P. C. ch. 73, § 10; 1 Russ. on Crimes, 250, 251. Thb rule is
now modified in England, the defendant being permitted, by Stat 6 & 7,
Vict ch. 96, § 7, to prove that the publication was made without his author-
ity, consent, or knowledge, and did not arise from his want of due care or
caution.
PABTV*] HBEL. 163
publiecUiony is also sufficient to charge him with the publica-
tion. Thus, where the defendant, meeting the reporter for
one of the public prints, communicated to him the defama-
tory matter, saying that '^ it would make a good case for the
newspaper;" and accompanied him to an adjacent tavern,
where a more detailed account was given, for the express
purpose of inserting it in the newspaper with which the
reporter was connected ; after which the reporter drew up an
account of the matter, which was inserted in the paper ; this
was held sufficient proof of a publication by the defendant.
Bat the newspaper was not admitted to be read in evidence,
until the paper written by the reporter was produced, that it
might appear that the written and the printed articles were
the same.^
§ 173. The publicaiion must be proved to have been made
within the county where the trial is had.^ If it was contained
in a newspaper, printed in another State, yet it will be suffi-
cient to prove that it was circulated and read within the
coanty.^ If it was written in one county, and sent by post
to a person in another, or its publication in another county be
otherwise consented to, this is evidence of a publication in
the latter county.* Whether, if a libel be ^written in one
county, with intent to publish it in another, and it is accord-
ingly so published, this is evidence sufficient to charge the
party in the county in which it was written, is a question
which has been much discussed, and at length settled in the
affirmative.^
§ 174. The coUoquiwn may be proved .by witnesses, having
^ Adams v, Eellj, By. & M. 157. As to publicatioii, see farther, anU^
yoL2, ^415, 416.
* 1 Russ. on Crimes, 258 ; Nicholson v, Lothrop, 8 Johns. IS 9.
8 Commonwealth v. Blanding, 8 Pick. 304.
4 1 Russ. on Crimes, 258 ; 12 St. Tr. 331, 332 ; Rex v. Watson, 1 Campb.
915 ; Rex v. Johnson, 7 East, 65.
5 Rex v. BurdeU, 4 B. & Aid. 95, per Abbott, C. J. and Best and BxA-
royd, Js., Bayley, J., dubiianU,
164 LAW OF EYIDENOB. [PABT Y.
knowledge of the parties and circumstances, who thereupon
testify their belief that the libellous matter has the reference
mentioned in the indictment ; but it may also be proved by
other circumstances, such as admissions by the defendant in
other publications, &c.^ It is not necessary to show that the
libel would be understood by ,all persons to apply to the party
alleged ; it is sufficient if it were so understood by the wit-
nesses themselves, who knew him. But they must under-
stand it so from the libel itself; for if its application to the
party injured be known or understood only by reference to
other writings for which the defendant is not responsible, this
will not be sufficient^
§ 175. It is sometimes said that the innuendoes^ also, must
be proved ; but this inaccuracy arises from not considering
their precise nature and office. In an indictment for this
oflence, the averment states all the facts, dehors the writing,
which are essential to the proper understanding of the libel
itself; the colloquium SLSserts that the libel was written of and
concerning the party injured, with reference to the matters so
averred; the innuendo is merely explanatory of the subject
matter sufficiently expressed before, and of that only ; and as
it cannot extend the sense of the words beyond their own
proper meaning, it is not the subject of proof.^ Whether the
libel relates to the matters so averred, is a question of fact for
the Jury.*
§ 176. Whether, by the common law, the defendant, 'in an
indictment for a defamatory libel on the person, could give
the truth tn evidence^ in his justification, is a question which
has been much debated in this country. By the common
law, as held in England, the truth of the libel was not a jus-
t 3 Stark, on Slander, 51 ; Chubb v. Wesdej, 9 C. 6t F^ 486. And see
ante, Vol. 2, § 417.
9 Bourke v. Warren, d G. & P. 807.
3 Rex V. Home, Cowp. 683, 684; Van Vechten v. Hopkins, 5 Johns. 211»
S20 -223. And see May v. Brown, 8 B. & C. 113.
4 Ibid.
PART v.] LIBEL. 165
tification ; but this has beea recently modified by a statute,
permitting the defendant, in an indictment or information for
a defamatory libel, in addition to the plea of not guilty, to
put in a special plea of the truth of the matters charged ;
upon which plea the truth may be inquired into ; and if the
Jury find the matter to be true, and that the publication
thereof was for the public benefit, it constitutes a good de-
fence to the prosecution.^ In several of the United States,
this doctrine of the common law, though denied by some
Judges, was recognized by the general current of judicial
decisions, as of binding force in this country ; but it has since
been modified in some States, and totally abrogated in oth-
ers, by constitutional or statutory provisions ; so that it is no
longer to be admitted as a rule of American law.^ On the
contrary, it will now be found, that, to an extent more or
less limited, as will be shown, the truth of a defamatory
publication brings it within the class of privileged communi-
cations.
§ 177. Thus, in some of the United States, it is enacted
that the truth may be given in evidence, in all criminal pro-
secutions for libel. But this, it is conceived, is to be under-
stood of libels defamatory of the person, and not to scandal-
ous libels of a more general character. And the same con-
struction should probably be given to all other enactments
which permit the truth to be shown in prosecutions for this
ofience. In the statutes of some States, it is simply declared
that the truth may, in those cases, be given in evidence ; ^ in
1 Stat. 6 & 7, Vict ch. 96, ^ 6. See Cook on Defamation, p. 467 ; and
the Report of the Lords' Committee, with the evidence before them on the
subject of libel. Id. p. 471 -512. The other English statutes in melioration
and amendment of the law of libel may be found at large in the same work.
App. No. 1, pp. 408 - 470.
9 See 2 Kent, Comm. 19-24.
3 See Connecticut, Const. Art. 1, J 7; New Jersey, Rev. Stat 1846, tit
34, ch. 11, p. 964 ; Missouri, Const. Art. 13, § 16 ; Mississippi, Rev. Stat
1840, ch. 49, § 24, How. & Hut Dig. p. 668, 669 ; Georgia, Prince's Dig.
p. 644 ; Texas, Stat Dec. 21, 1836, § 33, Hartley's Dig. art 2373. p. 724.
166 LAW OV SVIDENGE. [PABT V.
others, it is said that it shall be a justification ; ^ but doubt-
less the effect of both expressions is the same. Again, it is
provided in the Consttiutions of several States, that the truth
shall be admissible in evidence as a justification, in prosecu-
tions for those publications which concern the official con-
duct of men in public ofiice, or the qualifications of candi-
dates for public ofiice, or, more generally, where the matter is
proper for public information ; ^ other cases, it seems, being
left at common law, except where it may be otherwise pro-
vided by statute. And other States have provided, either in
constitutional or statutory enactments, that the truth *shaU
constitute a good defence, in all cases, provided it is found to
have been published from good motives and for justifiable
ends.^ It thus appears, that in nearly all the United States,
I See Vermont, Bev. St 1839, ch. 25, ^ 68 ; Maryland, Stat 1803, ch. 54,
Dorsey's ed. Vol. 1, p. 482 ; North Carolina, Rev. Stat 1837, ch. 35, § 13 ;
Tennessee, Stat 1805, ch. 6, ^ 2, Gar. & Nich. Dig. p. 439 ; Arkansas^ Clonst
Art. 2, ^ 8 ; Rev. Stat 1837, Div. 8, ch. 44, art 2, ( 3, p. 280. In Illinois,
the truth is a justification in all cases, except in libels tending to blacken the
memory of the dead, or to expose the natural defects of the living. Rev. St
1845, Grim. Gode, $ 120.
' See Ohio, Gonst Art 8, ( 6 ; Indiana, Gonst Art 1, ( 10 ; AlotbamOf
Const Art. 6, ^ 14, Stat 1807, Toubn. Dig. tit 17, ch. 1, § 46 ; Pennsylva-
nia, Const Art. 9, § 7; Kentucky, Gonst Art. 10, § 8 ; Delaware, Const
Art. 1,^5; Arkansas, Gonst. Art 2, § 8 ; Maine, Const Art 1, § 4 ; Texas,
Gonst 1845, Art. 1, § 6 ; Illinois, Gonst Art. 8, § 23 ; Tennessee, Gonst Art
11, §19.
3 See Massachusetts, Rev. St 1836, ch. 133, § 6 ; New York, Gonst Art
7, § 8 ; Rev. Stat Vol. 1, p. 95, § 21 ; Rhode Island, Const Art 1, § 20 ;
Michigan, Gonst Art. 1, (7; Wisconsin, Const Art 1, § 3 ; Iowa, Rev.
Gode, 1851, art. 2769 ; Florida, Gonst Art 1, § 15, Thompson's Dig. p. 498 ;
Cali/omia, Coast Art. 1, § 9 ; Stat 1850, ch. 99, ^ 120. In Maine, the
truth will justify any publication respecting public men, or proper for public
information, irrespective of the motive of publication ; but to justify the publi-
cation of any other libel, it must be free from any corrupt or malicious motive.
Rev. Stat. 1840, ch. 165, $5. In New Hampshire, it is held as common
law, that if there was a lawful occasion for the publication, and the matter
published is true, the motive is immaterial ; and that though the matter be
not true, yet the publication may be excused, by showing that it was made
on a lawful occasion, upon probable cause, and from good motives. The
State v. Bumham, 9 N. Hamp. 34.
PART V.J LIBEL. 167
the right to give the truth in evidence, in criminal prosecu-
tions for libels, is, to a greater or less extent, secured by ex-
press law ; and probably would not now, in any of them, be
denied. It may here be added, that by the Act of Congress of
July 14, 1798, libels on the government, or Congress, or the
President, were made indictable in the Courts of the United
States, and the truth was permitted to be given in evidence,
by the defendant, in his justification. This act, though of
limited duration, has been regarded as declaratory of the
sense of Congress, that in prosecutions of that kind, it was a
matter of common right for the defendant to show that the
matter published was true.^
§ 178. In his defence^ it is competent for the defendant to
show, that he did not participate in the publication ; or, if it
was done by his servant, that it was against his express
orders, or out of the course of the servant's employment, or
while the master was absent, under circumstances rendering
it physically and morally impossible for him to prevent it ; or
that it was done by deceiving and defrauding the master.
Or he may show, by other passages in the same book or news-
paper, relating to the matter, or referred to in the libel itself,
that the libel was not defamatory, or criminal, in the sense
imputed to it.^ He may also show that the publication was
privileged, as being made in the course of his public or social
duty.^ But a subsequent publication of the same matter,
when not required by such duty, as, for exajnple, the printing
of a speech delivered in a legislative assembly, or the like, ie
not privileged.* Whether the printer of legislative docu-
ments, containing official reports defamatory in their nature,
could protect himself under the allegation of privilege, by
showing that he published them by order of the legislature,
' See LawB U. States, Vol. 3, ch. 91, (Bioren's ed.) SKent Comm. 24.
> Rex V. Lambert, 2 Campb. 398.
3 iSupray§ 167, 176; Goodnow v. Tappan, 1 Ohio, R. 60.
4 Rex v. Creevej, 1 M. & S. 273, 278 ; Rex v. Ld. Abingdon, 1 £8p.R.
926 ; Oliver v. Ld. Bentinck, 3 Taunt. 466.
168 LAW OF EVIDENCE. [PA&T T.
is a question which at one time greatly agitated the British
public ; but at length it was settled that the order of the
legislature was no defence to an action at law.^
§ 179. The right of the Jury^ in criminal cases, and parti-
cularly in trials for libel, has also been the subject of much
discussion. It was formerly held, that where there were no
circumstances which raised a question of justification in point
of law, the Jury were bound to find the defendant guilty, if
they found the fact of publication and the truth of the t Aiitf-
endoes ; these two matters of fact being all which they were
permitted to inquire into.^ In the United States, this doc*
trine is not known to have been received, but on the con-
trary has been so distasteful as to have occasioned express
constitutional and statutory provisions, to the effect that, in
all such cases, the Jury may render a general verdict, upon
the whole matter, under the issue of not guilty. The lan-
guage of the constitutions of some States is, that <<the Jury
shall be judges of," and in other States, << shall have the right
to determine," the law and the facts. In many of the consti-
tutions, it is provided that the Jury may do this ^' under the
direction of the Court," ^ or, " after having received the direc-
tion of the Court," ^ or, ^ as in other cases ; " ^ but in other
^ Stockdale v. Hanfard, 9 A. & £L 1.
.3 See Hex v. The Dean of St Asaph, 3 T. R. 429-432, note, ivbere
the practice is historical]/ stated and vindicated by Ld. Mansfield. The ex-
citement which grew out of this and some other cases, caused the passage of
the statute of 32 Geo. 3, c. 60, which declares^ that in an indictment or inform-
ation for a libel, upon the issue of not guilty, the jurors may return a gene*
ral verdict upon the whdie matter, and not upon the fact of publication and
the truth of the innuendoes^ alone.
3 Such are the Constitutional provisions in Ohio^ Const Art 8, § 6 ; Indi-
ana^ Const Art 1, ^ 10 ; Alabama^ Const Art 6, § 14 ; Pennsylvaniay
Const Art. 9, ^ 7 ; Kentucky^ Const Art 10, ^ 8 ; dmnectictU^ Const Art
1^7; Missouri^ Const Art 13, § 16 ; Illinm^ Const Art 8, ^ 23 ; Tenner-
tee^ Const Art. 1 1, ^ 19.
4 See Afouitf, Const Art. 1, H i ^o^oa^ ^v* Stat 1851, ^ 2773.
^ See Delaware^ Const Art. 1, ^ 5.
PiJlT v.] LIBEL. 169
constitutions the provision is unqualified.^ Upon these
provisions a further question has been raised, whether the
Jury were bound to follow the directions of the Court, in
matters of law, or were at liberty to disregard them, and de-
termine the law for themselves. On this point, the decisions
are not entirely uniform ; and. some of them are not perfectly
clear, from the want of discriminating between the power
possessed by the Jury to find a general verdict, contrary to
the direction of the Court in a matter of law, without being
accountable for so doing, and their right so to do, without a
violation of their oath and duty. But the weight of opinion
is vastiy against the right of the Jury, in any case, to disre-
gard the law as stated to them by the Court; and, on the con-
trary, is in favor of their duty to be governed by such rules
as the Court may declare to be the law of the land ; the
meaning of the constitutional provisions being merely this,
that the Jury are the sole judges of all the facts involved in
the issue, and of the application of the law to the particular
case.2
1 See Arkansas^ Const Art 2, § 8 ; Calif amia, Const Art. 1, $ 9 ; New
Torky Const. Art 7, ^ 8 ; Mkhigariy Const Art. 1,^7; Florida^ Const Art
1,^ 15; Wisconsin, Const Art 1, ^ 3 ; Texcu, Const (1845,) Art 1, § 6.
In this last mentioned State, in the Constitution of 1836, Declaration of
Rights, Art 4, the words, " under the direction of the Court," were added ;
but in the revised Constitution of 1845, thej were omitted.
9 This question was -very fully and ably considered in the United States
V. Battiste, 2 Sunm. S4S ; The Commonwealth v. Porter, 10 Met 263 ;
Fierce v. The State, 13 N. Hamp. 536 ; The United States v. Morris, 4 Am.
Law Jour. 241, N. S. ; in which cases the other American and the English
authorities are reviewed. And see ante, Vol. 1, ^49; Townsend v. The
State, 2 Blackf. 151 ; Wanen v. The State, 4 Blackf. 150 ; Armstrong v.
The State, Id. 247 ; Hardy v. The State, 7 Mis. 607 ; The People v. Pine,
2 Barb. S. C. R. 566.
VOL. III. 15
170 LAW OF EVIDBNGB. [PABT Y.
MAINTENANCE.
§ 180. This crime is said to consist in the unlawful taking
in hand or upholding of quarrels or sides, to the disturbance
or hinderance of common right^ It is of two kinds, namely,
BurcUis, or in the country, and Owrialis^ or in the Courts.
The former is usually termed Champerty; and is committed
where one upholds a controversy, under a contract to have
part of the property or subject in dispute. The latter alone is
usually termed Maintenance ; and is committed where one offi-
ciously and without jast cause, intermeddles in and promotes
the prosecution or defence of a suit in which he has no inte-
rest, by assisting either party with money, or otherwise.^
Both species of this crime are, in some form or other, forbid-
den by statutes, in nearly all the United States; but the
common law is still- conceived to be in force, where it has not
been abrogated by statute.^
§ 181. The indictment charges, in substance, that the de-
fendant, unjustly and unlawfully maintained and upheld a
certain suit, pending in such a Court, (describing them,) to
the manifest hinderance and disturbance of justice. If the
offence was strictly champerty, and consisted in the buying
1 1 Hawk. P. C. ch. 83, ( 1 ; 1 Inst 868, b. ; 3 Inst 212.
9 Ibid ; Thallhimer v. BrinckerhofT, 3 Cowen, 623 ; 20 Johns. 386 ; 1 Rnss.
on Crimes, p. 175 ; Holloway v. Lowe, 7 Post, 488.
3 Wolcott V. Knight, 6 Mass. 421 ; Everendcn v. Beaumont, 7 Mass. 78 ;
Swett V. Poor, 1 1 Mass. 658 ; Thurston v, Percival, 1 Pick. 416; Brinlejv.
Whiting, 5 Pick. 859; Key v. Vattier, 1 Ham. 132; Rust v, Larue, 4 Litt
417 ; Brown v, Beuchamp, 5 Monr. 416. In OAto, and in lUinais^ it has
been held, that a conveyance by one who b disseised, is not void for cham-
per^. Hall v. Ashby, 9 Ham. 96 ; Willis r. Watson, 4 Scam. 64.
PABT v.] MAINTBNAKCB. 171
of a pretended or disputed title or claim to property from a
grantor or vendor out of possession, the facts are specially
stated in the indictment. In either case, the charge, being
properly made, is supported primd facie by evidence of the
specific facts alleged ; as, that the defendant assisted another
with money to carry on his cause ; or did otherwise bear him
out in the whole or part of the expense of the suit ; or, induced
a third person to do so ; ^ or, bargained to carry on a suit, in
consideration of having part of the thing in dispute ;^ or pur-
chased the interest of a party in a pending suit ; ^ or the like.
§ 182. The defendant, in his defence^ may avoid the charge
by evidence that the act was justifiable ; as, that he already
had an interest in the suit, in which he advanced his money,
though it were but a contingent interest ; ^ or, that he was
nearly related by blood or marriage to the party whom he
upheld, even though he were but a step-son ; ^ or, was related
sociaUy, as master or servant;^ or, that be assisted the party
because he was a poor man, and from motives of charity ; ^.
or, that the defendant was interested with others in the gene-
ral question to be decided, and that they merely contributed
to the expense of obtaining a judicial determination of that
question.^
§ 183. K the defendant is charged with knowingly buying
or selling landj held in possession by another under an adverse
claim of titlCj with intent to disturb that possession ; the
charge may be resisted by evidence, that such possession was
1 1 Hawk, F. C. ch. 88, ^ 4, 5 ; 1 Ross, on Crimes. 1 75.
> Thallhimer v. Brinckerhoff, 8 Cowen, 623 ; Lathrop v. Amherst Bank,
9 Met 489.
8 Ardcn v. Patterson, 5 Johns. Ch. 44.
4 Thallhimer v. BrinckerhofT, 3 CoWen, 628 ; Williamson v. Henley,
6 Bing. 299 ; 1 Hawk. P. C. ( 12- 19 ; Wickham v, Conklin, 8 Johns. 220.
s Campbe]! r. Jones, 4 Wend. 306, 310. If he is heir apparent, it is
Bofficient, liowever remotely related. 1 Hawk. P. C. ch. 88, ^ 20.
< 1 Hawk. P. C. ch. 88, ^ 28, 24..
7 Perine v. Dann, 8 Johns. Ch. 508.
8 Gowen v. Nowell, 1 Greenl. 292 ; Froet v. Fkine, 3 Fairf. 111.
172 LAW OF BVIDBNCB, [PAET V.
not of a nature to throw any doubt upon the title ; as, if it
were under a mere quitclaim deed, from a naked possessor or
occupant, who claimed no title ; '^ or, that the adverse posses*
sion was of only a small proportion of the land, and that the
entire agreement of sale was made in^good faith, and not
with the object of transferring a disputed title ;^ or, that the
purchase was made for the purpose of confirming his own
title ; ^ or the like. The party selling is presumed to know
of the existence of an adverse possession, if there be any;^
but this may be rebutted by counter evidence on the part of
the defendant^
' Jackson v. Hill, 5 Wend. 532 ; Jackson v. Ck)Uin8, 3 Coven, 89.
9 Van Dyck v. Van Beuien, 1 Johns. 846.
< Wilcox V. Calloway, 1 Wash. 38.
4 Hassenfrats v. EeJly, 13 Johns. 466 ; Lane v. Shears, 1 Wend. 433 ;
Eiheridge v. Cromwell, 8 Wend. 629.
* Ibid. And see Jackson o. Demont, 9 Johns. 55; Swett v. Poor,
11 Mass. 549, 554.
PABIV.] mJIBAHOB. 173
NUISANCE.
>
§ 184. Common nuisances, are a species of offence against
the public order and economical regimen of the State ; being
either the doing of a thing, to the annoyance of all the citi-
zens, or the neglecting to do a thing, which the common
good requires.^ More particularly, it is said to comprehend
endangering the public personal safety, or health ; or doing,
cansing, occarioning, promoting, maintaining or continning
what is noisome and offensive, or annoying and vexatious, or
plainly hurtful to the public, or is a public outrage against
common decency or common morality, or tends plainly and
directly to the corruption of the morals, honesty and good
habits of the people ; the same being without authority or
justification by law.^ Hence it is indictable, as a common
nuisance, to carry on an offensive trade or manufacture in a
settled neighborhood or place of usual public resort or travel,
whether the offence be to the sight, or smell, or hearing ; ^ or,
to expose the citizens to a contagious disease, as, by carrying
an infected person through a frequented street, or opening a
hospital in an improper place ;^ or, to make or keep gunpow-
der in or near a frequented place, without authority thereifor ; ^
or, to make great noises in the night, by a trumpet, or the
like, to the disturbanbe of the neighborhood ; ^ or, to keep a
1 1 Hawk.P. C, ch. 76, ( 1 ; 4 Bl. Comm. 166 ; 1 Run. on Crimei, 318.
> Report of MasBachnsettB Ck)mmi88bner8 on Grim. Law, tit. Ckmmon
Nninnoe, ^ 1,
3 Rex V. :Pappineaa, 1 Stia. 686 ; Rex v. Nerille, 1 Feake, 91 ; The Peo-
ple V. Cmmingham, 1 Denio, 524.
4 Rex V. Vantandillo, 4 M. & S. 73 ; Rex v. Burnett, 4 M. ft 6. 978 ;
Anon. 3 Aik. 750.
5 Rex V. Taylor, 2 Stra. 1167; The People v. Sands, 1 Johni. 78.
6 Rex t». Smith,! Stra. 704.
15 •
174 LAW OF EVIDENCB. [PABT Y.
disorderly house ;^ or, a house of ill fame ;^ or, indecently to
expose the person ; ^ or, to be guilty of open lewdness and
lascivious behavior;^ or, to be frequently and publicly drunk,
and in that state exposed to the public view;^ or, to be a
common scold ;^ or a common eavesdropper ; ^ or, to ob-
struct a public highway.^ Many of these, and some others,
which are also offences by the common law, are forbidden by
particular statutes, upon which the prosecutions are ordina-
rily founded.®
§ 185. The indictment for this offence states the facts
which form the subject of the charge, alleging it to be to the
common nuisance of all the citizens of the State, or Com-
monwealth. But if the subject be one which in its nature
necessarily tends to the injury of all the citizens, such as, ob-
structing a river described as a public navigable river, or a
way described as a public highway, or the like, it is said to
be sufficient) without any more particular allegation of com-
mon nuisance.^^
§ 186. In yroof of the charge^ evidence must be adduced
to show, 1st, that the act complained of was done by the de-
fendant ; and this will suffice, though he acted as the agent
I Hex V. Higginson, 2 Burr. 1232; 13 Pick. 362; The State v. Bertheol,
6 Blackf. 474.
8 1 Hawk. P. C. cb. 74 ; Id. ch. 75, ( 6.
3 Rex V. Sedley, 1 Keb. 620 ; Sid. 168 ; Bex v. Cninden, 2 Campb. 89 ;
The State v. Boper, 1 Dev. & Bat 208.
4 1 Hawk. P. C. eh. 5, ^4 ; 1 Buss, on Crimes, 326 ; Grisham v. The
State, 2 Yerg. 589.
6 Smith V. The State, 1 Humph. 396 ; The State v. Waller, 3 Murpb.
8S9.
6 1 Hawk. P. C. cb. 75, ( 5, 14 ; 4 Bl. Comm. 168 ; 1 Bu». on Crimes,
827.
7 4 Bl. Comm. 168 ; 1 Buss, on Crimes, 827«
8 4 Bl. Comm. 167 ; 1 Hawk. P. C. cL 76.
* See, for the law of Common Nuisances, Wbart. Am. Crim. Law, p. 698-
706, and cases there cited.
10 1 Hawk. P. C. cb. 75, M, 4, 5 ; 1 Boss, on Crimes, 889.
PAST v.] NUISANCE. 175
or servant and by the command of another ; ^ 2d, that it was
to the common injury of the public, and not a matter of mere
private grievance. And this must be shown as an existing
fact, and not by evidence of reputation.^ If the act done
or neglected is charged as a common nuisance on the ground
that it is offensive, annoying or prejudicial to the citizens, it
must be shown to be actually and substantially so ; for
groundless apprehension is not sufficient; and mere fear,
though reasonable, has been said not to create a nuisance ; ^
neither is slight, uncertain and rare damage.^
§ 187. In the defence^ it is of course competent to give
evidence of any facts tending to disprove or to justify the
charge. But he will not be permitted to show in defence,
that the public benefit resulting from his act, is equal to
the pnblic inconvenience which arises from it; for this would
be permitting a private person to take away a public right,
at his discretion, by making a specific compensation.^ But
it seems that such evidence may be admitted to the Court,
in mitigation of a discretionary fine or penalty.^ If the
charge is for obstructing a public river, by permitting his
sunken ship to remain there, the defendant may show that
the ship was wrecked and sunken without his fault ;7 and
1 The State v. Bell, 5 Post. 865 ; The State v. Matthis, 1 Hill, S. C. R.
37.
9 Commonwealth v. Stewart, 1 S. & R. 842 ; Commonwealth o. Hopkins,
2 Dana, 418.
8 Anon. ; 3 Atk. 751, per Ld. Hardwicke. And see 1 Buss, on Crimes,
818 ; Report Mass. Comms. tit Common Nuisance,^ 3 ; Bex v. White, 1
Burr. 833.
4 Bex V. Tmdall, 6 Ad. & £1. 143.
8 Bex V. Ward, 4 Ad. & £1. 384 ; oveiraling Bex v. Bussell, 6 fi. & C.
566, in which the contrary had been held. And see, ace. Bespublica v, Cald-
well, 1 Dall. 150.
6 The State v. Bell, 5 Fort 365.
7 Bex V. Watts, 3 £8p. B €75. Qucere^ whether it is not requisite for the
defendant, in such cases, to show that he has relinqubhed and abandoned
all claim or right of property in the wreck. And see Brown o. Mallett, 6
M. 6. &S. 599, 617-620.
176 LAW OF BVIDBirGE. [PIKT T.
the same principle, it is conceived, will apply to any other
case of accidental obstruction. The navigable or public
character of the river or highway, may also be controverted
by evidence.^
1 ComnKmirealth v, Chapin, 5 Pick. 199.
PABTV.] PEBJtJBT. » 177
PERJURY.
§ 188. This crime is the subject of statute provisions, to a
greater or less extent, in all the United States ; and in some
statutes it is particularly defined ; but cases, not provided for
by statute, are understood to remain offences at common law.
The crime J as described in the common lawy is committed when
a lawful oath is administered, in some judicial proceedings or
doe course of justice ^ to a person who swears wilfully ^ abso^
lutely^ andfalselps in a matter material to the issue or point in
question.^ Where the crime is committed at the insti^tion
or procurement of another, it is termed subornation of perjury^
in the party instigating it ; and is equally punishable, by the
common law. And though the person thus instigated to
take a false oath, does not take it, yet the instigator is still
liable to punishment.^
§ 189. The indictment for perjury will of course specify all
the facts essential to this offence ; namely, 1st, the judicial
proceedings^ or due course of justice^ in which the oath was
taken ; 2dly, the oath^ lawfully taken by the prisoner ; 3dly,
the testimony which he gave; 4thly, its materiality to the
issue or point in hand ; and, Sthly, its wilful falsehood.
§ 190. 1st. In regard to the character of the proceeding in
which the oath is taken, it may be stated, as the general
principle, that wherever an oath is required, in the regular
administration of justice, or of civil government, under the
1 8 InBt. 164 ; 4 Bl. Comm. 187 ; 1 Hawk. P. C. ch. 69, ( 1 ; S Bnsi. on
Crimes, 596 ; Whart Am. Crim. L. 650.
9 1 Hawk. P. C. ch. 69, ^ 10.
178 ' LAW OJf BVIDBNCB. [PAKT V.
general laws of the land, the crime of perjury may be commit-
ted. It has therefore been held sufficient, if it be proved that
the crime was committed by the prisoner, in his testimony
orally as a witness in open Court, or in an information or
complaint to a magistrate, or before a commissioner or a ma-
gistrate, in his deposition ; ^ in any lawful Court whatever,
whether of Common Law, or Equity ; * or Court Ecclesias-
tical ;* of record, or not of record ;* and whether it be in the
principal matter in issue, or in some incidental or collateral
proceeding, such as before the Grand Jury, or in justifying
bail,^ or the like ; and whether it be as a witness, or as party,
in his own case, where his testimony or affidavit may law-
fully be given.^ And where, upon qualification for any office
or civil employment, of honor, trust, or profit, an oath is re-
quired of the person, stating some matter of fact, a wilful and
corrupt false statement in such matter, is perjury.^ It is suffi-
cient, if it appear 7?rtm(£/aa>, that the Court had jurisdiction
of the matter, and that the Judge, Magistrate, or Officer,
before whom the oath was taken was de facto in the ordinary
exercise of the office ; ^ such evidence, on the part of the pro-
1 1 Hawk. P. C. cb. 69, ^ 8 ; 2 Chitty, Cr. L. 443, 445 ; Begina v. Gard-
iner, 8 C. & P. 737 ; Carpenter v. The State, 4 How. Miss. K. 163. Or,
before a State magistrate, under an act of Congress. U. States v. Bailey,
9 Pet. 288.
2 Ibid. ; 6 Mod. 848 ; Crew v. Vernon, Cro. Car. 97, 99 ; Ponltney v.
Wilkinson, Cro. EL 907.
8 Shaw V. Thompson, Cro. £1. 609 ; 1 Hawk. P. C. eh. 69, $ 8.
4 3 Roil. Abr. 267, Perjury, pi. 2 ; 1 Hawk. uh,iupra; 5 Mod. 348 ; The
People V. Phelps, 5 Wend. 10.
9 Regina V. Hughes, 1 C. & K. 519 ; 1 Roll. Abr. 89, 40 ; Royson's case,
Cro. Car. 146 ; Commonwealth v. White, 8 Pick. 455 ; The State t*. Offutt,
4 Blackf. 855 ; The State v. Fassett, 16 Conn. 457 ; The State v. Mofiatt,
7 Humph. 250.
« 1 Hawk. P. C. ch. 69, ( 5 ; Respublica v. Newell, 8 Yeates, 407 ; The
Slate V. Steele, 1 Yerg. 394 ; The State v. Johnson, 7 Blackf. 49.
7 Rex r. Liewis, 1 Stra. 70 ; Report Commrs. Mass. on Cnm. Law, tit
Perjury, ( 18 ; The State v. Wall, 9 Yerg. 847, was the case of a juror, ex-
amined as to his competency.
6 See antty Vol. 1, § 88, 92 ; The State v. Hascall, 6 N. Hamp. 852 ; The
PAKT T.] PBBJUBT. 179
secution, devolving on the prisoner the burden of showing
the contrary. But this rule is applicable only to public func-
tionaries ; and therefore, where the authority to administer
the oath was derived from a special commission for that pur-
pose, as in the case of a commission out of Chancery, to take
testimony in a particular cause, or where it is delegated to
be exercised only under particular circumstances, as in the
case of commissioners in bankruptcy, whose power depends
on the fact that an act of bankruptcy has been committed, or
the like ; the commission, in the one case, or the existence of
the essential circumstances, in the other, must be distinctly
proved.^
§ 191. The competency of the witness to testify, or the fact
that he was not bound to answer the question propounded to
him, or the erroneousness of the judgment founded upon his
testimony, are of no importance ; it is sufficient, if it be
shown that he was admitted as a witness, and did testify.^
But if he were improperly admitted as a witness, in order to
give jurisdiction to the Court, it being a Court of special and
limited jurisdiction, his false swearing is not perjury.^
§ 192. 2dly. In proof of the oath taken^ under the usual
allegation that he ^ was sworn and examined as a witness,"
or, " sworn and took his corporal oath," it will be sufficient
to give evidence that it was in fact taken in some one of the
modes usually practised.^ But if it be aUeged that it was
taken on the gospels, and the proof be that it was taken with.
State V. Gregory, S Murphy, 69 ; Bex v. Yerelrt, 8 Campb. 482 ; Bex v.
Howard, 1 M. &. Bob. 187.
I Bex V. Punshon, 8 Campb. 96.
s Montgomery v. The State, 10 Ohio, 920 ; Haley v. McPherson, 3
Humph. 104 ; Sharp v. Wilhite, 2 Humph« 434 ; 1 Sid. 274 ; Shaffer v. Kint-
ner, 1 Binn. 542 ; Bex v. Dummer, 1 Salk. 374 ; Van Steenbergh v. Eorts,
10 Johns. 167; The State r.Molier, 1 Dev. 268.
3 Smith V. Bouchier, 2 Stra. 993 ; 10 Johns. 167.
4 Bex V. Bowley, Ry. & M. 80*2 ; 2 Chitty, Crim. L. 309 ; Bex. v. lio-
Carther, 1 Peake's Gas. 155 ; The State v. Norris, 9 N. Hamp. p. 96.
180 LAW OF EVIDENCE. [PAKT V.
an uplifted hand, the variance will be fatal ; for the mode in
such case is made essentially descriptive of the oath.^ So, it
is conceived, it would be, if the allegation were that the party
was sworn, and the proof were of a solemn affirmation ; or
the contrary. Nor is it a valid objection, that the oath was
irregularly taken ; as for example, whe^e the witness was sworn
to testify the whole truth, when he should have been sworn
only to make true answers.^ Where the oath was made to
an answer in Chancery, deposition, affidavit, or other written
papeTj signed by the party, the original document should be
produced, with proof of his handwriting, and of that of the
magistrate before whom it was sworn ; which will be suffi-
cient evidence of the oath, to throw on the prisoner the bur-
den of proving that he was personated on that occasion by a
stranger.^ If the affidavit were actually used by the prisoner,
in the cause in which it was taken, proof of this fact will su-
persede the necessity of proving his handwriting.^ The rule
in these cases seems to be this ; that the proof must be suffi-
cient to exclude the hypothesis that the oath was taken by
any other person than the prisoner.^ If the document ap-
pears to have been signed by the prisoner with his name, it
1 See ante, VoL 1, § 65 ; The State v. Porter, 2 Hill, S. C. R. 611. And
see the State v. Noms, 9 N. Hamp. 96 ; Rex v. McCarther, 1 Feake's Cas.
156.
9 The State v. Keene, 13 ShepL 33.
3 Bex V. Morris, 2 Burr. 1189 ; Bex v. Benson, 2 Campb. 608; Cook v.
Dowling, S Doug. 75 ; Ewer v. Ambrose, 4 B. & C. 25 ; Conunonwealth v.
Warder, 11 Met 406; Ante, YoL 1, $ 512. Where peijuiy was asagned
upon an answer in Chancery, to a bill filed by A. ** against B. and another,"
and it appeared that in &ct the bill was against B. and several others ; Lord
EUenborough held it nevertheless sufficient, and no variance in the proof;
upon the statute of 23 Geo. 2, c. 11, ^ 1, which only required that such pro-
ceedings be set out according to their substance and efiect Rex o. Benson,
supra. The rule, it is conceived, is the same at common law.
4 Bex V. James, 1 Show. 897 ; Carth. 320, & C. It was Cartheufs re-
port of this case, which was denied by Ld. Mansfield, in Crook v. Dowling
supra; it not appearing that the affidavit, of which a copy only was offered,
had been used by the prisoner. And see Rees v. Bowen, M'Cl. & Y. 383.
5 Bex V. Brady, 1 Leach, C. C. 368 ; Bex v. Price, 6 East, 323.
PABT v.] * PEBJURY. 181
will be {^resumed that he was not illiterate, and that he was
acquainted with its contents ; but if he made his mark only,
he will be presumed illiterate ; in which case some evidence
must be offered to show that it was read' to him ; and for
this purpose the certificate of the magistrate or officer, in the
juraij will be sufficient.^ It must also appear that the oath
was taken in the county where the indictment was found and
is tried ; but the jurat, though primd facie evidence of the place,
is not conclusive, and may be contradicted.^
§ 198. Sdly. As to the testimony actually given. If there
are several distinct assignments of perjury upon the same tes-
timony, in one indictment, it will be sufficient if any one of
them be proved;^ and proof of the substance is 'sufficient,
provided it is in substance and effect the whole of what is
contained in the assignment in question.^ Whether it is ne-
cessary to prove all the testimony which the prisoner gave at
the time specified, is a point which has been much discussed,
the affirmative being understood to have been ruled several
times by Lord Kenyon ; ^ but it will be found, on examina-
tion of the cases, that he could have meant no more than that
the prosecutor ought to prove all that the prisoner testified
respecting the fact on which the perjury was assigned.^ It
is, however, conceived, that to require the prosecutor to make
out ^ primd facte case, leaving the prisoner to show that in
another part of (|is testimony he corrected that part on which
the perjury is assigned, is more consonant with the regular
course of proceeding in other cases, where matters, in excuse
1 Bex V. Hailejr, 1 C. & P. 258.
s Rex V, Taylor, Skin. 403 ; Rex v. Emden, 9 East, 487 ; Bex v. Spencer,
1 C. & P. 260.
9 The State v. Haacall, 6 N. Hamp. 852.
4 Rex V. Leefe, 2 Campb. 184.
^ Rex V, Jones, 1 Peake'a Gas. 87 ; Rex v. Dowlin, Id. 170.
^ See ace. Rex v, Rowley, R7. & M. 299 ; where it was so ruled by Lit-
tLedale, J., and afterwards confirmed by all the Judges.
VOL. III. W
182 LAW OP EVIDBNCB. * [PABT V.
or explanation of an act primd facie criminal, are reqaired to
be shown by the party charged.^
§ 194. In proving what the prisoner orally testified, it is not
necessary that it be proved ipssisimis verbis ; nor that the wit-
ness took any note of his testimony ; it being deemed suffi-
cient to prove sabstantially what he said, and all that he said,
on the point in hand.^ Neither is it necessary to a conviction
of perjury, to prove that the testimony was given in an abso-
lute and direct form of statement; but, under proper aver-
ments, it will be sufficient to prove that the prisoner swore
falsely as to his impression, best recollection, or best know-
ledge and belief.^ In such case, however, it will be not only
necessary to prove that what he swore was untrue, but also
to allege and prove that he knew it to be false ; ^ or, at least,
that he swore rashly to a matter which he had no probable
cause for believing.*
§195. 4thly. As to the ma^eria/%ofthe matter to which the
prisoner testified, it must appear either to have been directly
pertinent to the issue or point in question, or tending to in-
crease or diminish the damages, or to induce the Jury or
Judge to give readier credit to the substantial part of the evi-
dence.^ But the degree of materiality is of no importance ;
for if it tends to prove the matter in hand, it is enough,
> See 2 Stark. Ey. 625 ; 2 Bass, on Crimes, 658 ; 2 Cfaitty, Grim. Law,
SI 2, 5.; AnUy YoL 1^ § 79 ; Bex v. Cair, 1 Sid. 418. ,
9 Bex V. Monton, 3 C. & P. 498 ; 2 Busb. on Crimes, 658.
3 Millei^s case, 8 Wils. 420, 427 ; Patrick v. Smoke, 8 Strobh. 147 ; Bex
17. Pedley, 1 Leacli, Cr. Cas. 825 ; 2 Chitty, Crim. L. 812 ; 2 Buss, on Crim.
597 ; Begina v, Schlesinger, 10 Ad. & £1. 670, N. S.
4 Begina v. Parker, 1 Car. & M. 689 ; 2 Chitty, Crim. L. 812, 820.
6 Commonwealth v. Comisli, 6 Binn. 249.
6 2 Buss, on Crimes, 600 ; 1 Hawk. P. C. ch. 69, ^ 8 ; Rex v. Ajlett, 1 T.
B. 68, 69. In a late case, Erie, J., said he thought the law ought to be, that
whatever is sworn deliberately, and in open Court, should be the subject of
peijury ; though the law, as it exists, he added, is undoubtedly difierent.
Begina v. Philpotts, 5 Cox, C. C. 886.
PABT v.] PBRJDBY. 183
though it be bat circumstantiaL^ Thus, falsehood in the
statement of collateral matters, not of substance, such as the
day, in an action of trespass, or the kind of staff with which
an assault was made, or the color of his clothes, or the like,
may or may not be criminal, according as they may tend to
give weight and force to other and material circumstances,
or to give additional credit to the testimony of the witness
himself or of some other witness in the cause.^ And there-
fore every question upon the cross-examination of a witness,
is said to be material.^ In the answer to a bill in Equity,
matters not responsive to the bill may be material.^ But
where the bill prays discovery of a parol agreement, which is
• void by the statute of frauds, and which is denied in the an-
swer, this distinction has been taken ; that where the statute
is pleaded or expressly claimed as a bar, the denial of the fact
is immaterial and therefore no perjury ; but that where the
statute is not so set up, but the agreement is incidentally
charged, as, for example, in a bill for relief, the fact is mate-
rial, and perjury may be assigned upon the denial.^
§ 196. As it is the act of false swearing that constitutes
the crime, and not the injury which it may have done toindi-
viduals, the materiality of the testimony is to be ascertained
by reference to the time when it was given^ the perjury being
then, if ever committed. If, therefore, an affidavit was duly
1 Bex V. Griepe, 1 Ld. Baym. 258 ; Bex v. Rhodes, 2 Ld. RaTin. 889,
890 ; The State v. Hathaway, 2 N. & McC. 118 ; Commonwealth v. Pollard,
13 Met. 225.
9 1 Hawk. P. C. ch. 69, $ 8 ; 2 Buss, on Crimes, 600 ; Bex v. Styles,
Hetl. 97; Stoddard v. Linville, 3 Hawks, 474; The State v, Norris, 9 N.
Hamp. 96.
3 The State v. Strat, 1 Morphey, 124 ; Begina v. Overton, I Car. &
Marsh. 655.
4 5 Mod. 348. •
5 Begina v. Yeates, 1 Car. & Marsh. 182 ; Bex. v. Dunston, By. & M.
109 ; Bex v. Benesech, 3 Peake's Cas. 98. The facts being proved, the
question, whether they are material or not, is a question of law. Steinman
v.Mc Williams, 6 Barr, 170.
184 LAW OF BVIDBNCB. [PART V*
sworn, but cannot be read, by reason of some irregalarity in
ihe jurats or for some other cause is not used y^ or if, after the
testimony was given, some amendment of the issue, or other
change in the proceedings, takes place, by means of which
the testimony, which was material when ^ it was given, has
become immaterial ; ^ proof of its materiality at the time is
still sufficient to support this part of the charge. Nor is it
necessary to show that any credit was given to the testimony ;
it is enough to prove that it was in fact given by the pri-
soner.^
197. Where the proof of materiality is found in the records
of the Court, or in the documents necessary to show the
nature of the proceedings in which the oath was taken, this
fact will appear in the course of proving the proceedings, as
has already been shown. But where the perjury is assigned
in the evidence given in the cause, it will be necessary, not
only to produce the record, but to give evidence of so much
of the state of the cause, and its precise posture at the time
of the prisoner's testifying, as will show the materiality of
his testimony. The indictment does not necessarily state
how it became material, but only charges generally, that it
was so.*
§ 198. Sthly. As to the wilful falsity of the matter testified.
It was formerly held, that two witnesses were indispensable,
in order to a conviction for perjury ; as otherwise there would
be only oath against oath ; but this rule has been with good
reason relaxed ; and a conviction, as has been fully shown in
a preceding volume, may be had upon any legal evidence
of a nature and amount sufficient to outweigh that upon
which perjury is assigned. This point having been fully
treated in the place referred to, it is superfluous here to pur-
1 Regina v. Hailey, 1 C. & P. 258 ; Rex v. Crossley; 7 T. R. 315. And
see The State v. Lavalley, 9 Ms. 884.
9 Bullock w. Koon, 4 Wend. 631.
3 1 Hawk. P. C. eh. 69, ^ 9 ; 3 Russ. on Crimes, 603.
« The State v. Mumford, 1 Dev. 519.
PABT v.] PKRJTJET. 185
sae it further*^ It may, however, be added here, that it is
only in proof of 'the falsity of what was testified, that more
evidence than that of a single witness is required ; one wit-
ness alone being sufficient to prove all the other allegations
in the indictment^
§ 199. In proof that the testimony was wilfully false, evi-
dence may be given, showing animosity and malice in the
defendant against the prosecutor ; ^ or, that he had sinister
and corrupt motives in the testimony which was falsely
given. Thus, where perjury was assigned upon a complaint
made by the defendant of threats on the part of the prose-
cutor to do him some great bodily harm, thereupon requiring
sureties of the peace against him ; evidence was held admis-
sible, showing that the real object of the defendant, in making
that complaint, was to coerce the prosecutor to pay a dis-
puted demand.^ And if the fiedse testimony given in a cause
were afterwards retracted, in a cross-examination, or a subse-
quent stage of the trial ; yet the indictment will be supported
by proof that the false testimony was wilfully and corruptly
given, notwithstanding the subsequent retraction.^ But it
1 Ante, Vol. 1, ^397 - 260 ; 2 Buss, on Crimes, 649 - 654. And see B^gina
V. Wheatland, 8 C. & P.. 838 ; Begina v. Champney, 2 Lew. 258 ; Begma v-
Hughes, 1 C. & K. 519; Begina t;. Bonlten, 16 Jar. 185. It is also to be
noted, that declarations in arttado mortis are not admisdble, even as coiro-
borative or adminicular evidence, except in cases of homicide* See ante,
Vol. 1, § 156.
9 Conmionwealth v. Pollard, 12 Met 225 ; Bex v. Lee, 2 Buss, on Crimes,
650; The State 9. Hayward, 1 N. & McC. 546. It seems that perjury
may be assigned upon a statement literally true, but designedly used to con-
vey a &l8e meaning, and actually understood in such false sense ; the rule
being, that '^ if the words are &Ise in the only sense in which they relate to
the subject in dispute, it is sufficient to convict of peijuiy ; though in an-
other sense, foreign to the issue, they might be true." 1 Gilb. £v. by Lofft,
p. 661 ; Bex v. Aylett, 1 T. B. 63. Whether, if a witness swears to th^
which he beUeves to be false, but which is in &ct true, he can be convicted
of peijury, qtusre ; and see 3 Inst 166 ; Bract, lib. 4, fol. 289.
3 Bex r. Munton, 3 C. & P. 498.
4 The State v. Hascall, 6 N. Hamp. 352.
5 Martin v. Miller, 4 Mis. 47.
16*
186 LAW OF EVIDENCE. [PABT V.
must be clearly shown to have been wilfully and corruptly
given, without any intention, at the time, to retract it ; for it
is settled, that a general answer may be subsequently ex-
plained, so as to avoid the imputation of perjury. Thus,
where peijury was assigned upon an answer in Chancery, in
which the defendant stated that she had received no money ;
and it was proved, that, upon exceptions being taken to this
answer, she had put in a second answer, explaining the gene-
rality of the first, and stating that she had received no money
before such a day; it was held, upon a trial at bar, that
nothing in the first answer could be assigned as perjury,
which was explained in the second.^
§ 200. The allegation that the oath was wilfully and cor-
ruptly false, may also be supported by evidence, that the pri-
soner swore rashb/y to a matter which he never saw nor knew ;
as, where he swore positively to the value of goods, of which
he knew nothing though his valuation were correct;^ or,
where he swore falsely to a matter, the truth of which, though
he believed, yet he had no probable cause for believing, and
might with little trouble have ascertained the fact. Thus,
where the prisoner, having been shot in the night in a riot,
made complaint on oath before a magistrate against a parti-
cular individual as having shot him; and two days after-
wards testified to the same fact upon the examination of the
same person upon that charge ; upon which oath perjury was
assigned ; and upon clear proof that this person was at that
time at a place twenty miles distant from the scene, the alibi
was conceded, and the prisoner's defence was placed upon
the ground of honest mistake of the person ; the Jury were
instructed that they ought to acquit the prisoner, if he had
any reasonable cause for mistaking the person ; but that if it
were a rash and presumptuous oath, taken without any pro*
1 Bex V. Carr, 1 Sid. 418 ; 2 Keb. 576 ; 2 Stark. Ev. 627; 2 Russ. od
Crimes, 666. The fiame general principle is recognized in Rex v. Jones,
1 Feake's Cas. 38 ; Rex v. Dovling, Id. 170 ; Rex v, Rowley, Ry. & M. 299.
3 3 Inst 166.
PABT v.] PERJURY. 187
bable foundation, they ought to find him guilty, though he
might not have been certain that the individual charged was
not the person who shot him. And this instructioo was held
right.^
§ 201. In DEFENCE against an indictment for perjury, it
may be shown, that the oath was given before a Court or a
Magistrate having no jurisdiction in the cause or matter in
question ; as, for example, that the oath was given before a
Judge, out of the limits of the State in which he was com-
missioned ; ^ or, in a suit previously abated by the death of
the party ;^ or the like.* It may also be shown, that the tes-
timony was given by surprise, or .inadvertency, or under a
mere mistake^ for which the witness was not culpable, and in
respect to which he ought to be charitably judged ; ^ or, that
it was in a point not material to the issue ; ^ or, that it was
true.^ But if there be several assignments of perjury in the
same indictment, and as to one of them no evidence is given
by the prosecutor, no evidence will be admitted, on the part
of the defendant, to prove that in fact the matter, charged in
that assignment to be false, was |n reality true."^
, § 202. In regard to the competency of the party injured^ as a
witness to prove the perjury, it was formerly the course to
exclude him, where it appeared that the result ollthe trial
1 Commonwealth v. Cornish, 6 Binn. 249.
3 Jackson v, Humphrey, 1 Johns. 498.
3 Sex V. Cohen, 1 Stark. R. 511.
4 Paine's case, Yelv. Ill ; Boling r. Luther, 2 Tayl. 202; The State v.
Alexander, 4 Hawks, 182 ; The State v, Hayward, 1 N. & McC. 646 ; The
State r. White, 8 Kck. 458 ; The State v. Furlong, 18 Shepl. 69 ; Muir v.
The State, 8 Blackf. 154 ; Lambden v. The State, 5 Humph. 88.
^ Bexr. Melling, 5 Mod. 348, 850 ; Reginav. Muscot, 10 Mod. 195 ; 2Mc>
Nall/s £v. 635. In Bex v. Crespigny, 1 Esp. B. 280, the mistake was in
regard to the legal import of a deed. See ace. The State v Woolverton,
8 Bbckf. 452.
6 The State r. Hathaway, 2 N. & McC. 118 ; Hinch v. The State, 2 Mis.
168.
7 Bex V. Hemp, 6 C. & P. 468.
188 LAW OF EVIDENCE. [PABT V.
might probably be to his advantage in ulterior proceedings
elsewhere. Thus, where he expected that the defendant
would be the only witness, or a material witness against him
in a subsequent trial ; ^ or, where, by the ordinary course in
Chancery, he might, upon the conviction of the defendant,
obtain an injunction of further proceedings at law,^ he has
been rejected as incompetent. But the modern rule places
the prosecutor in the same position as any other witness, re-
jecting him only where he has a direct^ certain and immediate
interest in the record, or is otherwise disqualified, on some of
the grounds stated in a preceding volume.^ But where the
defendant is a material witness against the prosecutor, in a
cause still pending, the Court will in their discretion suspend
the trial of the indictment until after the trial of the civil ac-
tion.
1 Bex V. Dalby, 1 Feake, R. 12 ; Bex v. Hulme, 7 C. & P. 8.
9 Bex V. Eden, 1 Esp. B. 97.
3 See ante, Vol. 1, ( 387,889,390, 403, 404,407,411 -418. And see The
State V. Bishop, 1 Chipm. 120 (Yt.) ; The State v. Pray, 14 N. Hamp.
464.
PAET v.] POLYGAMY. 189
»»
POLYGAMY.
^ 203. This offence consists in having a plurality of wives
at the same time. It is often termed bigamy; which, in its
proper signification, only means having had two wives in suc-
cession. It was originally considered as of ecclesiastical cog-
nizance ; but the benefit of clergy was taken away from it by
the statute De Bigamis ; ^ and afterwards it was expressly
made a capital felony.^
§ 204. The indictment states the^r^^ and second tnarriagesj
and alleges that at the time of the second marriage, the for-
mer husband or wife was alive. The proof of these three facts,
therefore, will make out the case on the part of the prosecu-
tion. In regard to the first marriage^ it is sufficient to prove
that a marriage in fact was celebrated, according to the laws
of the country in which it took place ; and this, even though
it were voidable; provided it were not absolutely void.^
This may be shown by the evidence of persons, present at
the marriage, with proof of the official character of»the cele-
brator ; or, by documents legally admissible, such as a copy
of the Register, where registration is required by law, with
proof of the identity of the person ; or, by the deliberate ad-
mission of the prisoner himself.^
§ 205. In proof of the second marriage^ the same kind of
1 4 Edw. 1, ch. 5.
9 lJac.l,c. 11,^1; 1 East, P. C. 464.
3 Ante, Vol. 2. tit Marriage, ^461. And see Bishop on Marriage and
Divorce, ch. 17, where the evidence of marriage is more fully treated.
< See Ante, Vol. 1, ^ 339, 484, 493 ; Vol. 2, ^ 461 ; Truman's case, 1
East, P. C. 470; The Stater. Ham, 2Fairf.391 ; Woolverton r. The State,
16 Ohio, 17S1.
190 LAW OP BVIDBNCB. [PABT V.
evidence is admissible, as in proof of the first;. But it must
distinctly appear, that it was a marriage in all respects legaf,
except that the first husband or wife was then alive ; that it
was celebrated within the county, unless otherwise provided
by statute ; and that the person, with whom the second mar-
riage was had, bore the name mentioned in the indictment^
Proof of a second marriage by reputation alone, is not suffi-
cient. The description of the person, too, though unnecessa-
rily stated in the indictment, must be strictly proved as alle-
ged. Thus, where the person was styled a widow, but it
appeared in evidence that she was in fact and by reputation
a single woman, the variance was held fatal.^
§ 206. If the first marriage is clearly proved, and not con-
troverted, then the person, with whom the second marriage
was had, may be admitted as a witness to prove the second
marriage, as well as other facts, not tending to defeat the
first, or to legalize the second. Thus, it is conceived, she
would not be admitted to prove a fact, showing that the first
marriage was void, such as relationship within the degrees,
or the like ; nor, that the first wife was dead, at the time of
the second marriage ; nor ought she to be admitted at all, if
the first marriage is still a pointun controversy.^
•
§ 207. There must also be proof that the first husband or
wife was living eU the time of the second marriage. And for
this purpose, it is said that the mere presumption of the con-
tinuance of life is not sufficient, without the aid of other cir-
cumstances, though seven years have not expired since the
last intelligence was had in regard to the absent person.^
§ 208. The defence may be made by disproving either of
the points above stated. Thus, where a woman married a
^ Drake's case, 1 Lew. 25.
« Rex ». Deeley, Ry. & M. 803 ; 4 C. & P. 679 ; Ante, Vol. 1, § 65. *
3 See ante, Vol. 1, ^ 389 ; 1 Hale, P. C. 698 ;] 1 East, P. C. 469 ; 1 Ruas.
on Crimes, 218; 2 Stark. Ev. 656.
4 Rex r. Twyning, 2 B. & Aid. 886 ; 2 Stark. Ev. 655.
PART v.] POLTaAMT. 191
second husband abroad, in the lifetime of the first ; and after-
wards the first died ; and then she married a third in England,
in the lifetime of the second, and for this third marriage she was
indicted ; upon proof that the first husband was living when
the second marriage was bad, it was held a good defence to
the indictment, the second marriage being a nullity, and the
third therefore valid.^ But the prior marriage must be shown
to be absolutely void ; for if it were only voidable, and not
avoided previous to the second marriage, it is no defence.^
The defence may also be made, by showing that the prison-
er's case comes within any of the exceptions, found in the sta-
tutes, which the several States have enacted on this subject ;
such as, absence of the former partner for more than seven
years, unheard of; previous divorce a vinculo matrimonii; or
the like.
1 Lady Madison's case, 1 Hale, F. C. 69S.
9 3 Inst 88.
192 LAW OP EVIDENCE. [PABT V.
RAPE.
§ 209. This offence is defined to be the unlawful carnal
knowledge of a woman, by force^ and against her wilV-
These facts are the principal allegations in the indictment.
§ 210. In the proof of camaZ knowledge^ it was formerly held,
though with considerable conflict of opinion, that there must
be evidence both of penetration and of injection. But the
doubts on this subject were put at rest, in England, by the
statute of 9 Geo. 4, c. 31, which enacted that the former of
the two facts was sufficient to constitute the offence. Sta-
tutes to the same effect have been passed in some of the United
States.^ But as the essence of the crime consists in the vio-
lence done to the person of the sufferer, and to her sense of
honor and virtue, these statutes are to be regarded merely as
declaratory of the common law, as it has been held by the
most eminent Judges and Jurists both in England and this
country.^
1 1 East, F. C. 434. And see 2 List. 180, 181 ; 8 Inst 60 ; 4 Bl. Comm.
210; 1 Buss on Crimes, 675. .
9 See Kew York^ Rev. Stat. Vol. 2, p. 820, § 18 ; Mc%an, Rev. Stat
1846, ch. 153, ^ 20; lotoa, Code of 1851, art. 2997; Arkansas, Rev. Stat
I837,*ch. 45, ^ 163.
3 3 Inst 59, 60 ; 1 Hale, F. C. 628 ; 1 East, F. C. 436, 437 ; Rex v. Rus-
sen, 1 East, F. C. 438 ; Rex v. Sheridan, Ibid. ; 1 Russ. on Crimes, 678 ;
Commonwealth o. Thomas, Yirg. Cas. 307 ; Pennsylvania v. Sullivan, Addis.
R. 143 ; The State v. Leblanc, Const Rep. 354. As to what constitutes
penetration, see Regina v. Lines, 1 C. & F. 393 ; Reginav. Stanton, Id. 415 ;
Regina r. Hughes, 9 C. & F. 752 ; Regina v. Jordan, Id. 118 ; Regina v. Mc-
Rue, 8 C. & F. 641.
PABT v.] RAPE, 193
^ 211. The allegation of force and the absence of previous
consent is proved by any competent evidence, showing that
either the person of the woman was violated, and her resist-
ance overcome by physical force, or that her will was over-
come by the fear of death, or by daress. In either case, the
crime is complete, though she ceased all resistance before the
act itself was finally consummated. And if she was taken
at first with her own consent, but was afterwards forced,
against her will ; or was first violated, and afterwards forgave
the ravisher and consented to the act ; or if she was his conr
cubine, or a common strumpet; still, the particular ofience in
question being committed by force and against her will at
the time of its commission, this crime is in legal estimation
completed ; these circumstances being only admissible in evi-
dence on the part of the defendant, to" disprove the allegation
of the want of consent^ So, if the prisoner rendered the
woman intoxicated or stupefied with liquor, or chloroform, or
other means, in order to have connection with her in that
state, which purpose he accomplished, he may be convicted
of this crime.^ If the female was of tender age, the law con-
clusively presumes that she did not consent; and this age,
being not precisely determined in the common law, was set-
tled, by the statute of 18 Eliz. c. 7, at ten years.^ If the act
were perpetrated upon a married woman, by fraudulently and
successfully personating her husband, and coming to her bed
in the night, it is not a rape, but an assault.^
§ 212. The defence against this charge generally consists in
controverting the evidence of the fact or of the force, adduced
on the part of the prosecution. It is to be remembered, as
has been justly observed by Lord Hale, that it is an accusa-
1 1 Rasa, on Crimes, 677 ; 1 East, P. C. 444, 445 ; Wright v. The State,
4 Homph. 194.
9 Regina v. Camplin, 1 C. & K 746 ; 1 Den. C. Cas. 89.
3 4 Bl. Comm. 212; 1 Hale, P. C. 631 ; 1 East, P. C. 436; Hayes v. The
People, 1 Hill, N. Y. R. 351.
4 Regina v. Saunders, 8 C. & P. 265 ; Regina v. Williams, Id. 286.
VOL. III. i7
194 LAW OF EVIDENCE. [PART V.
tion easily made, hard to be proved, and still hardef to be
defended by one evfir so innocent.^ The party injured is
legally competent as a witness, but her credibility must be
' left to the Jury, upon the circumstances in the. case which
concur with her testimony ; as, for example, whether she is a
person of good fame ; whether she made complaint of the in-
jury as soon as was practicable, or without any inconsistent
delay ; whether her person or garments bore token of the
injury done to her ; whether the place was remote from pas-
sengers, or secure from interruption ; and whether the offender
fled ; or the like. On the other hand, if she be of Ml fame,
and stands unsupported by other evidence; or if she con-
cealed the injury for any considerable time after she had op-
portunity to complain ; or if the act were done in a place
where other persons might have heard her cries, but she
uttered none ; or if she gave wrong descriptions of the place,
or the place were such as to render the perpetration of the
offence there improbable ; these circumstances, and the like,
will proportionably diminish the credit to be given to her tes-
timony by the jury .2
§ 213. Though the prosecutrix may be asked whether she
made complaint of the injury^ and when and to whom ; and
the person to whom she complained is usually called to prove
that fact ; yet the particular facta which she stated are not
admissible in evidence, except when elicited in cross-exami-
nation^ or by way of confirming her testimony after it has
been impeached. On the direct examination, the practice
has been merely to ask whether she made complaint that
such an outrage had been perpetrated upon her, and to re-
ceive only a simple yes, or no.^ Indeed, the complaint con-
» 1 Hale, P. C. 686.
9 1 Hale, P. C. 633 ; 1 East, P. C. 445 ; 1 Buss, on Crimes, 688, 689.
3 Begina v. Walker, 2 M. & Rob. 212; Regina v. Megson, 9 C. & P.
420 ; The People v. McGee, 1 DeDio, 19; Phillips v. The State, 9 Humph.
246 ; Rex v. Clarke, 2 Stark. B. 241 ; 1 Buss, on Crimes, 689, 690, and note
by Greaves.
PART v.] f RAPE, 195
stitates no part of the res gestce; it is only a fact corrobora-
^v^ of the testimony of the complainant ; and where she is
not a witness in the case, it is wholly inadmissible.^
§ 214. The character of the prosecutrix for chastity may
also be impeached ; but this must be done by general evi-
dence of her reputation in that respect, and not by evidence
of particular instances of unchastity.'^ Nor can she be inter-
rogated as to a criminal connection with any other person,
except as to her previous intercourse with the prisoner him-
self; nor is such evidence of other instances admissible.^
§ 215. It may also be shown, in defence, that the prisoner
was at the time under the age of fourteen years ; prior to
which age the law presumes that he was incapable of com-
mitting this oifence ; and this presumption is, by the common
law, conclusive.^ Under this age, therefore, it is held, that
he cannot be convicted of a felonious assault with intent to
commit this crime.^
1 Regina v. Guttridge, 9 C. & P. 471.
9 Rex v. Clarke, 2 Stark. R. 241 ; Rex v. Barker, 8 C. & P. 589 ; Re-
gina V. Claj, 5 Cox, C. Gas. 146. And see ante^ Vol. 1, ( 54 ; The State v.
Jefferson, 6 Ired. 305 ; The People v. Abbot, 19 Wend. 193 ; Camp v. The
State, 8 Kelly, 417.
3 Rex V. Hodgson, R. & Ry. 211 ; Rex v. Aspinall, 2 Stark. Evid. 700.
The soundness of this distinction was questioned by Williams, J., in Rex v.
Martin, 6 C. & P. 562 ; and in New York and North Carolina evidence of
previous intercourse with other persons, has been held admissible, as tend-
ing to disprove the allegation of force. See, The People v. Abbot, and The
State V, Jefferson, supra,
4 1 Hale, P. C. 630; 4 Bl. Comm. 212; Rex v. Eldershaw, 8 C. & P.
896 ; Rex v, Groombridge, 7 C. & P. 582 ; Regina v, Phillips, 8 C. & P
736 ; Regina o. Jordan, 9 C. & P. 118 ; Commonwealth v. Green, 2 Pick.
880. But in OhiOy this presumption has been held rebuttable by proof that
the prisoner had arrived at puberty. Williams v. The State, 14 Ohio, 222.
And see Commonwealth v. Lanigan, 2 Law Rep. 49. In Calif omia^ it is
enacted that "An infant, under the age of fourteen years, shall not be found
guilty of any crime." Rev. Stat. 1850, ch. 99, § 4.
5 1 Russ. on Crimes, 676 ; Rex v. Eldershaw, 8 C. & P. 396 ; Rex o.
Groombridge, 7 C. & P. 582 ; Regina v. Phillips, 8 C. & P. 786 ; The State
196 LAW OF EVIDENCE. ^ [PART V.
t7. Handy, 4 Harringt 556. But in Ckimmonwealth v. Green, 2 Pick. 380, it
was held bj the learned Judges, (Parker, Ch. J., dissenting,) that a boyi un-*
der the age of fourteen years, might be lawfully convicted of an assault with
intent to commit a rape ; on the ground that, if near that age, he might be
capable of that kind of force which constitutes an essential ingredient in
the crime ; and that females might be in as much danger from precocious
boys as from men. And see Williams v. The State, supra. Ideo qucere. If the
crime is consummated by penetration alone, of which a boy under fourteen
may be physically capable, and yet is in law conclusively presumed incapa-
ble, how can he be found guilty of an attempt to commit a crime, which, in
contemplation of law is impossible to be committed, or can have no exist-
ence ? In England this question is supposed to be put at rest by the stsL
1 Vict c. 85, (11, which enacts that ** on the trial o^any person^ for any
felony whatever^ where the crime charged shall include assault, the Juiy may
acquit of the felony, and find the party guilty of an assault, if the evidence
shall warrant such finding." See Regina v. Brimilow, 9 C. & P. S66.
PABT v.] RIOTS, BOUTS, AND UNLAWFUL ASSEMBLIES. 197
RIOTS, ROUTS, AND UNLAWFUL
ASSEMBLIES.
§ 216. To constitute either of these offences, it is necessary
that there be three or more persons tumultuously assembled
of their own authority, with intent mutually to assist one
another against all who shall oppose them in the doing either
of an unlawful act of a private nature, or of a lawful act in a
violent and tumultuous manner. If the act is done, in whole
or in part, it is a riot. If no act is done, but some advance
towards it is made, such as proceeding towards the place, or
the like, it is a rout. If they part without doing it or
making any motion towards it, the offence is merely that of
an UNLAWFUL ASSEMBLY.^
1 4 Bl. Comm. 146 ; 1 Hawk. P. C. ch. 65, ^ 1 ; 1 Russ. on Crimes, 266,
272 ; 3 Inst 176 ; The State v. Cole, 2 McCord, 117 ; The State v. Brooks,
1 Hill, S. Car. R. 861 ; Fennsjlyania v. Craig, Addis. R. 190 ; The State o.
Snow, 6 Shepl. 346 ; The State v. Connolly, 3 Rich. 837 ; Rex v. Birt, 5 C.
& P. 154. In an indictment for that species of riots which consists in going
about armed, &c., without committing any act, the words in terrorem populi
are necessary, the terror to the public being of the essence of that offence;
but in those riots in which an unlawful act is committed, these words are
useless. Regina v. Soley, 11 Mod. 116, per Lid. Holt ; 10 Mass. 520 ; Rex
V. Hughes, 4 C. & P. 873. To disturb another in the enjoyment of a lawful
right, if it be openly done by numbers unlawfully combined, is a riot. Com-
monwealth V. Runnells, 10 Mass. 518. In some of the United States, a riot
is defined by statute. Thus, in Maine, it is enacted that ^ When three or
more persons together, and in a violent or tumultuous manner, commit an
milawful act, or together do a lawful act in an unlawful, violent, or tumult-
uous manner, to the terror or disturbance of others, they shall be deemed
guilty of a riot." Rev. Stat. ch. 159, § 3. It is defined in the same words,
in the Code of lotoa. Art 2740. In Missouri, it is declared to be a riot, *^If
three or more persons shall assemble together with the intent, or, being
17*
198 LAW OP BVIBBNCE. [PART V.
§ 217. Iq support of the indictment for a riot^ it must be
proved that at least three persons were engaged in the unlaw-
ful act ; and if the evidence extends only to one or two per-
sons, all the defendants must be acquitted of this particu-
lar charge, though the act proved against one or two might
amount to an assault, or some other offence.^
§ 218. There must also be evidence of an unlawful assent"
bling' ; but it is not necessary to prove that when the parties
first met they came together unlawfully ; for if, being law-
fully together, a dispute arises, and thereupon they form into
parties, with promises of mutual assistance, and then make
an affray, the assemblage, originally lawful, will be converted
into a riot. Nor is it necessary to show that every defendant
was present at the original assemblage ; for a person, joining
others aLready engaged in a riot, is equally guilty as if he had
joined them at the beginning.^ So, if persons, being law-
fully assembled, should afterwards confederate to do an un-
lawful act, and proceed to execute it, by doing any act of
violence in a tumultuous manner, it is a riot.^
§ 219. If the indictment charges the actual perpetration of
a deed of violence, such as an assault and battery, or, the pull-
assembled, shall agree mutually to assist one another to do any unlawful act,
with force or violence, against the person or property of another, or against
the peace, or to the terror of the people, and shall accomplish the purpose
intended, or do any unlawful act in furtherance of such purpose, in a violent
or turbulent manner," &c. See Missouri Rev. Stat 1845, Ch. 47, Art 7,
§ 6. The Commissioners for revising the penal code of Massachusetts^ ex-
pressed their view of this offence, at common law, in these terms : — "A riot
is where three or more, being in unlawful assembly, join in doing or actually
beginning to do an act, with tumult and violence not authorized by law, and
striking terror, or tending to strike terror, into others.'' See their Beport,
Jan. 1844, ch. 34, ^ 5.
1 Bex r. Sudbury, 1 Ld. Baym. 484 ; Bex v. Scott, 3 Burr. 1262 ; FenxH
sylvania v. Huston, Addis. B. 334 ; The State v. Allison, 3 Yerg. 498.
9 1 Hawk. P. G. ch. 65, ^ 8 ; Bex v. Boyce, 4 Burr. 2073 ; Anon. 6 Mod.
48 ; The State v. Brazil, Bice, B. 258.
' The State v. Snow, 6 ShepL 846.
PART y.] BIOTS, BOUTS9 Ajn> UNLAWFUL ASSEMBLIES. 199
ing down of a hoilse, it is not necessary to allege or prove
that it was done to the terror and disturbance of the people ;
but proof of all the other circurastances alleged, will support the
indictment; without proving distinctly any terror. But where
the offence consists in tumultuously disturbing the peace, by
show of arms, threatening speeches, turbulent gestures, or
the like, without the perpetration of any deed of violence, it
is necessary to allege and prove that such conduct was to
the disturbance and terror of the good citizens of the State.^
Yet there may be a show of arms and a numerous assem-
blage, without a riot. Thus, if a man should assemble his
friends or others, and arm them, in defence of his house or
person against a threatened unlawful and violent attack ; or
should employ a number of persons, with spades or other
proper implements, to assist him in peaceably removing a
nuisance, and they do so ; it is neither a forcible entry, nor a
riot Nor is it a riot, when a sheriff or constable, or perhaps
a private person, assembles a competent number of men for*
dbly to put down a rebellion, to resist enemies, or to sup*
press a riot^
§ 220. It must also be shown that the object of the rioters
was of a private nature^ in contradistinction from those which
concern the whole community, such as the redress of public
grievances, or the obstruction of the Courts of Justice, or to
resist the execution of a public statute everywhere and at all
hazards ; acts of this kind being treasonable. Thus, if the
object of an insurrection or tumultuous assemblage be sup-
posed to affect only the persons assembled, or be confined to
particular persons or districts, such as to destroy a particular
inclosure, to remove a local nuisance, to release a particular
1 1 Hawk. P. C. ch. 65, § 5 ; Begina v. Soley, 11 Mod. 115; 2 Salk. 694,
595 ; Howard v. Bell, Hob. 91 ; Commonwealth v. Bonnelb, 10 MaM. 518 ;
CUffoid V. Bmndon, S Campb. 858, 869 ; The State v. Brazil, Bice,B. 258 ;
The State v. Brook, 1 HiU, S. Car. B. 862 ; Bex v. Hughes, 4 C. & P. 378.
Bat see Rex v. Cox, Id 588.
2 1 Hawk. P. C. ch. 65, ( 9; 1 Hale, P. C. 487, 495, 496 ; 1 Buss, on
Crimes, 266.
200 LAW OF BVIDBNCE. [PART V.
prisoner, or the like, it is not treason, bat is a riot^ If the
perpetration of an unlawful act of violence be charged, as the
riotous act, such as an assault and battery, it must be proved,
or the parties must be acquitted ; and if the offence is alleg-
ed to consist in a riotous assemblage and conduct, to the
terror of the citizens^ this part of the indictment will be sup-
ported by proof that one person only was terrified.^
§ 221. In proving the guilt of the defendants, as participa-
tors in the riot, the regular and proper order of proceeding is
similar to that which is adopted in prosecutions for conspi-
racy, namely, first to prove the combination, and then to
show what was done in pursuance of the unlawful design.
But this, as we have heretofore seen, is not an imperative
rule ; it rests in the discretion of the Judge to prescribe the
order of proofs in each particular case ; and if he deems it
expedient, under the special circumstances, to permit the pro-
secutor first to prove the riotous acts, it will be only after the
whole case, on the part of the government, has been openly
stated, and the prosecutor has undertaken to connect the de-
fendants with the acts done.^ But it will be sufficient to fix
the guilt of any defendant, if it be proved that he joined him-
self to the others after the riot began,* or encouraged them by
words, signs or gestures, or by wearing their badge, or other-
wise took part in their proceedings.*
222. A rout is proved in the same manner as a riot, the
proof only showing some advance made towards a riotous
act, but stopping short of its actual perpetration. And an
unlawful assembly is proved by similar evidence, without
1 1 Hawk. P. C. ch. 66, § 6 ; 1 East, P. C. 75 ; Rex v. Birt, 5 C. & P.
1(^4 ; Douglass v. The State, 6 Yerg. 525.
s Regina v. Langford, 1 Car. & Marehm. 602.
3 See tftipra, tit Conspiracy ; Ante^ Vol. I, ^ 51, a; Id. § 111 ; Nichol-
son's case, 1 LewiD, 300 ; 1 East, P. C. 96, § 37 ; Redford v. Birley, 3 Stark.
R. 76.
4 1 Hale, P. C. 462, 468 ; Clifford o. Brandon, 3 Campb. 358, 370 ; Bex
o. Royce, 4 Burr. 2073.
PART v.] RIOTS, ROUTS, AND UNLAWFUL ASSEMBLIES. 201
showing any motion made towards the execution of a riotous
act ; or, by evidence of the assemblage of great numbers of
persons, with such circumstances of terror,, as cannot but en-
danger the public peace, and raise fears and jealousies
among the people.^ All who join such an assemblage, dis-
regarding its probable effect, and the alarm and consterna-
tion likely to ensue ; and all who give countenance and sup-
port to it, are criminal parties.^
1 1 Hawk. P. C. ch. 65, § 8, 9 ; 1 Russ. on Crimes, S73 ; Bex t7. Birt, 5 C.
k P. 154 ; Begina v. Neale, 9 a& P. 431 ; Begina v. Yincent, 9 C. & P.
91, per Aldenoh, B.; Rex v. Hunt, :i B. & Aid. 566.
2 Redfoid V. Birley, 8 Stark. R. 76, per Holroyd, J.
302 LAW OP BVIDBNCK. [PART V.
ROBBERY.
§ 223. This crime has been variously described in the
books ; but the most comprehensive and precise definition, is
that which was given by Lord Mansfield, who " was of opi-
nion that th^ true nature and original definition of robbery,
was, a felonious tqking of property from the perscfn of another j
by forceP ^ The personal possession of the property by the
party robbed, he proceeded to say, might be actual, or con-
structive ; as, if it be in his presence, lying on the ground ;
and so of the force ; it might be physical violence, directly
applied ; or constructive, by threats, or otherwise putting
him in fear, and thereby overcoming his will. The indict-
ment charges — 1st, a taking of the goods ; — 2d, that they
were taken with a felonious intent ; — 3d, /rom the person of
the party robbed ; — 4th, by force.
§ 224. The goods must be proved to be the property of the
person named as owner in the indictment. If a servant,
having collected money for his master, is robbed of it on his
way home, it has been thought that it should still be deemed
the money of the servant, until it has been delivered to the
master ; or otherwise the servant could not be guilty of the
crime of embezzling it.^ But the value is immaterial ; for
the forcible taking of a mere memorandum, or a paper not
equal in value to any existing coin, is held sufficient to con-
stitute this crime.*
1 Donolly's case, 2 East, F. C. 725. And see United States v. Jones,
3 Wash. 209 ; McDaniel v. The State, 8 S. & M. 401.
S( Regina v. Rudick, 8 C. & F. 287, per Alderson, B.
3 Rex V. Bingley, 6 C. & P. 602 ; 2 East, P. C. 707 ; Regina v. Morris,
9 C. & P. 847. «
PABT v.] ROBBEBY. 203
§ 225. In proof of the takings it is necessary to show that
the goods were actually in the robber's possession. This point
has been illastrated by the case of a purse, which the robber,
in a struggle with the owner, cut from his girdle, whereby
the purse fell to the ground, without coming into the custody
of the robber ; which Lord Coke held to be no taking ;
though, if he had picked up the purse, it would have been
otherwise.^ So, where the prisoner stopped the prosecutor,
and commanded him to lay down a feather bed which he
was carrying, or he would shoot him, and the prosecutor did
so ; but the prisoner was apprehended before he could take it
up so as to remove it from the place where it lay ; the Judges
were of opinion that the. offence of robbery was not com-
pleted.^ But, where a diamond ear-ring was snatched by
tearing it from a lady's ear, though it was not seen actually
in the prisoner's hand, and was afterwards found among the
curls in the lady's hair ; yet as it was taken from her person
by violence, and was in the prisoner's possession, separate
from her person, though but for a moment, the Judges held
that the crime of robbery was completed.^ It is not, how-
ever, sufficient, that the property be snatched away, unless it
be done with some injury to the person^ as in the case just
mentioned, where the ear was torn, or unless there be a strug^
glefor the possession^ and some violence used to obtain it.^
§ 226. But there may be what is termed a talcing in law^
as well as a taking in fact, examples of which are given by
Lord Hale. Thus, if thieves, finding but little about the
man whom they attempt to rob, compel him, by menace of
death, to swear to bring them a greater sum, and under in-
fluence of this menace he brings it, this evidence will sustain
an indictment for robbery, in the usual form of allegation.^
1 8 Inst. 69 ; 1 HaIe,F. C. 533.
a Rex V. Farrell, 1 Leach, 822, note.
8 Rex v. Lapier, 1 Leach, 320.
4 1 Bass, on Crimes, p. 871, 875, 876.
5 1 Pale, P. C. 532, 533 ', 2 East, P. C. 714.
204 LAW OP BVIDENCK. [PABT V.
And it is the same, if the money or goods were asked for, as
a loan, but still obtained by assault and putting the party in
fear ; or if, in fleeing from the thief, the party drops his hat
or purse, which the thief takes up and carries away.^
§ 227. The taking must also be proved to have been with
a felonious intent; the proof of which has already been con-
sidered, in treating of the crime of larceny.^
§ 228. The goods must also be proved to have been taken
from the person of the party robbed; and this possession by
the party, as we have seen, may be either actual or construct-
ive. This allegation in the indictment, therefore, may be
proved by evidence that the goods were in the presence of the
party robbed ; as, if the robber, having first assaulted the
owner, takes away his horse standing near him ; or, having
put him in fear, drives away his cattle ; or takes up his purse,
which the owner, to save it from the robber, had thrown into
the bush.^ And it is sufficient^ if it be proved that the taking
by the robber was actually begun in the presence of the party
robbed, though it were completed in his absence. Thus,
where a wagoner was forcibly stopped in the highway by a
man, under the fraudulent pretence that his goods were un-
1 1 Hale, P. C. 633.
^ Supra, § 156. If the prisoner knowingly made or intended to make an
inadequate compensation for the goods forcibly taken, this will not absolve
him from the guilt of robberj ; for the intent was stiU fraudulent and feloni-
ous. Bex V, Simons, 2 East, P. C. 713 ; Bex v. Spencer, Ibid. ; 1 Buss, on
Crimes, p. 880. But whether, if he made or intended at the time to make
what he in good faith deemed a sufficient compensation and complete indem-
nity for the goods forcibly taken, the offence amounts to robbery, or is only
a forced sale and a trespass, is a point upon which there is some diversity of
opinion. The English Commissioners, (Fourth Report, p. 69, a. 40, n .) were •
of opinion that the offence was robbery. Mr. East deemed it a question for
the Jury, to find the intent, upon the connderation of all the circumstances.
2 Eafit, P. C. 661, 663. The Massachusetts Commissioners seem to have
regarded it as not amounting to robbery. See Beporton the Penal Code of
Massachusetts, 1844, tit. Robbsbt, § 17.
3 2 East, P. C. 707.
PART v.] ROBBERY. 205
lawfully carried, for want of a permit, and while they were
gone to a magistrate to determine the matter, the man's con-
federates carried away the goods ; this was held sufficient
proof of a taking to constitute robbery.^ But where it was
found, by a special verdict, that the thieves, meeting the party
wronged, and desiring him to change half a crown, gently
struck his hand, whereby his money fell to the ground ; and
that he dismounting and offering to take up the money, they
compelled him, by menaces of instant death, to desist; and
it was also found that ** the said prisoners then and there im'
mediately took up the money and rode off with it;" the Court
held this not to be sufficient proof of the crime of robbery^ it
not being found that they took up the money in the sight or
presence of the owner.^
■ § 229. In regard to the force or violence with which the
goods were taken, this may be actual or constructive ; the
QTinciple being this, that the power of the owner to retain
the possession of his goods was overcome by the robber ;
1 Merrixnan r. The Hundred of Chippenham, 2 East, P. C. 709 ; 1 Russ.
on Crimes, 876.
2 Bex V. Frances, 2 Com. R. 478. In expounding the above clause in
the special verdict, the learned Judges said : — "It was not denied but that
if a thief set upon a man to rob him, and he throw away his money or his
goods (being near him and in his presence,) and was forced away by terror,
and the thief took them, it would be robbery ; and therefore here possibly it
might have been well, if the Jury had found, that when Cox desisted, the
prisoners at the same time, or without any intermediate space of time, or in-
stantly, took it up ; but the word immediately has great latitude, and is not of
any determinate signification ; it is in dictionaries explained by ct'to, celeriter:
in writs returnable immediaU it has a larger construction, as soon as conve-
niently it can be done. In Mawgridge's case it is twice mentioned, but with
words added to ascertain it, as without intermission^ in a little space of time,
&c. In the statute 27 Eh'z. it is directed, that notice be given as soon as
conveniently may be ; in the pleadings that is usually expressed by immedi-
atk ; 80 that (hen and there immediately doth not necessarily ascertain the
time, but leaves it doubtful. Besides, it is proper to take notice, that in this
verdict the words then and there immediately are not coupled in the same
clause or sentence with the words preceding ; but it is a distinct clause, and
a separate finding." Id. p. 480, 481. And see 2 Stra. 1015, S. C.
VOL. III. 18
206 LAW OP BVIDENCB. [PABT V.
either by actual violence, physically applied, or by putting
him in such fear as to overpower his wiil.^ If the robbery
was by actual violence, the proof of this fact will support this
part of the indictment, though it should appear that the party
did not know that his goods were taken ; as, if he be vio-
lently pressed against a wall, by the thief, who in that mode
robs him of his watch, without his knowledge at the tiroe.^
So, if a thing be feloniously taken from the person of another
with such violence as to occasion a substantial corporal in*
jury, as, by tearing the ear, in plucking away an ear-ring,^ or
the hair, in snatching out an ornament from the head ; ^ or if
it be obtained by a violent struggle with the possessor, which
causes a sensible concussion of his person, provided it be so
attached to the person or clothes as to afford resistance ; ^ as,
if it be his sword, worn at his side.^ But where it appeared
that the article was taken without any sensible or material
violence to the person, as, for example, snatching a hat from
the head, or a cane or umbrella from the hand of the wearer,
rather by slight of hand and adroitness than by open vio-
lence, and without any struggle on his, part ; it has been
ruled to be not robbery but mere larceny from the personJ
§ 230. If it be proved that there was a felonious intent to
obtain the goods, and that violence was used, but that this
was done under the guise of legal proceedings it wiU still sup-
port an indictment for robbery •* And if the violence be used
1 It is not necessary to allege that the party robbed was put in fear ; nor is
it necessary to prove that he was intimidated, if the robbery was by actual
violence. Commonwealth v. Humphries, 7 Mass. 242.
9 Commonweaidi v. Snelling, 4 Binn. 379.
8 Bex V. Lapier, 1 Leach, C. C. 820 ; 2 East, P. C. 657, 708.
4 Bex V. Moore, 1 Leach, C. C. 835.
5 Bex V. Mason, B. & By. Cr. C. 419.
6 Bex V. Davies, 2 East, P. C. 709.
7 Bex 17. Steward, 2 East, P. C. 702; Reginav. Danby, Ibid.; Rex v.
Baker, Ibid. ; 1 Leach, C. C. 824 ; Rex t?. Homer, 2 East, P. C. 703 ; The
State w. Trexler, 2 Car. L. B. 90; Bex ». Macauley, 1 Leach, C. C. 287.
8 See Merriman v. The Hundred of Chippenham, 2 East, P. C. 709 ; Bex
t\ Gascoigne, Ibid. ; 1 Russ. on Crimes, 876, 877.
PABT v.] BOBBERY. 207
for another purpose^ as in ' the case of assault with intent to
ravish, and money being offered to the criminal to induce
him to desist, he takes the money but persists in his originar
purpose, it is robbery.^
§ 231. Evidence that the money or goods were obtained
from the owner by putting him in fear^ will support the alle-
gation that they were taken bt^ force. And the law, in odium
spoliatoriSj will presume fear, wherever there appears a just
ground for it* The fear may be, of injury to the person ; or,
to the property ; or, to the reputation; and the circumstances
must be such as to indicate a felonious intention on the part
of the prisoner. The fear, also, must be sh^own to have con-
tinued upon the party, up to the time when he parted with
his goods or money ; but it is not necessary to prove any
words ofmenace^ if the conduct of the prisoner were sufficient
without them ; as, if he begged alms, with a drawn sword ;
or, by similar intimidation, took another's goods, under color
of a purchase, for half their value ; or the like.^ It is only
necessary to prove that the fact was attended with those cir-
cumstances of violence or terror, which, in common experi-
ence, are likely to induce a man unwillingly to part with his
money, for the safety of his person, property, or reputation.^
1 Bex V. Blackham, 2 East, P. C. 711 ; 1 Biu8. on Crimes, 878.
9 Foster, Cr. L. 128, 129.
' 3 2 East,?. C. 711, 712.
4 FoAter, Cr. L. 128. On this point Mr. East makes the following obser-
yattons : — "It remains further to be considered of what nature this fear
may be. This is an inquiry the more difficult, because it is nowhere de-
fined in any of the acknowledged treatises upon this subject Lord Haie
proposes to consider .what shall be said a putting in fear, but he leaves this
part of the question untouched. 1 Hale, 534. Lord Coke and Hawkins do
the same. 3 List. 68 ; 2 Hawk. ch. 34. Mr. Justice Foster seems to lay the
greatest stress upon the necessity of the property's being taken against the
voiUof the party ^ and he lays the circumstance of fear out of the question ;
or that at any rate when the fact is attended with circumstances of violence or
terror, the law in odium spoliaioris will presume fear if it be necessary, where
there appears to be so just a ground for it Fost 123, 128. Mr. Justice
Blackstone leans to the same opinion. 4 Black. Com. 242. But neither of
208 LAW OF BVIDENCB. [PART V.
§ 232. Menace of danger to the 'person may be proved not
only by direct evidence of threats, but by evidence that the
prisoner and his companions hung round the prosecutor^s per-
son so as to render all attempts at resistance hazardous, if
not vain ; and in that situation rifled him of his property ; or
by proof of any other circumstances, showing just grounds of
apprehension of bodily harm, to avoid which, the party, while
under the influence of such apprehension^ gave up his money .^
If, therefore, robbers, finding but little money on the person
of their victim, enforce him, by menace of death, to swear to
bring them a greater sum, and while the fear of that menace
still continues upon him he delivers the money, it is robbery.^
It is also said, that menace of the destruction of one^s child
creates a sufficient fear to constitute robbery ; but no direct
adjudication is found upon this point, though it perfectly
agrees with the principles of the law, in other cases.^
them afiford any precise idea of the nature of the fear or apprehension sup-
posed to exist Staundford defines robbery to be a felonious taking of any
thing from the person or in the presence of another openly^ and against his
will; Staundf. lib. 1, c. 20 ; and Bracton also rests it upon the latter cir-
cumstance. Brae. lib. 3, fol. 150, b. I have the authority of the Judges as
mentioned by Willes, J., in delivering their opinion in Donnally's case, at the
O. B. 1779, to justify me in not attempting to draw the exact line in this
case ; but thus much I may venture to state, that on the one hand the fear
is not confined to an apprehension of bodily injury ; and, on the other hand,
it must be of such a nature as in reason and common experience is likely to
induce a person to part with his property against his will, and to put him as
it were under a temporary suspension of the power of exercising it through
the influence of the terror impressed ; in which case fear supplies, as well in
sound reason as in legal construction, the place of force, or an actual taking
by violence, or assault upon the person." 2 East, P. C. 713. See also the
remarks of Hotham, B., in Donnally's case, Id. 718 ; Bex v, Taplin, 2 East,
P. C. 712.
J Rex w. Hughes, 1 Lew. C. C. 301 ; 1 Russ. on Crimes, 879.
9 2 East, P. C. 714; 1 Hale, P. C 632.
3 Rex r.Donnally, 2 East, P.O. 715, 7 18, per Hotham, B.; 1 Leach, C. C. 164,
S. C. ; Rex v. Reanc, 2 East, P. C. 735, 736, per Eyre, C. J. ; 1 Russ. on
Crimes, 880, 892. Bracton, in treating of the fear that will vitiate a pre-
tended gifl of goods, says, — Et non solum excusatur quis qui exceptionem
habet, si sibi ipsi inferatur vis vel metus ; sed etiam si suis, ut si filio vel
PART y.] ROBBERY. 209
§ 233. The fear of injury to one^s property may also be suf-
ficient to constitate this offence. Thus, where money was
given to a mob, under the influence of fear arising from
threats,^ or just apprehension 2 that they would destroy the
party's house, it has been held to be robbery. So, where a
mob compelled the possessor of corn to sell it for less than its
value, under threats that if he refused, they would take it by
force ; this also was held to be robbery.^ And it is held, that
the prosecutor, in support of the charge, may give in evi*
dence other similar conduct of the same prisoners, at other
places, on the same day, before and after the particular trans-
action in question.^
§ 234. As to the fear of injury to the reputationj it has been
repeatedly held, that to obtain money by . threatening to
accuse the party of an unnatural crime, whether the conse-
quences apprehended by the victim were a criminal prosecu-
tion, the loss of his place, or the loss of his character and
position in society, is robbery.^ And it is immaterial whether
he were really guilty of the unnatural crime or not ; for if
guilty, it was the prisoner's duty to have prosecuted and not
filiflB, fiatri vel sorori, vel aliis domesticifl et propinquis; BractoOy lib. 2.
De acquirendo remm dominio, Cap. 5, ^ 13, fol. 16, (. ; and he cites a case
in which a grant of the manor of Middleton was held void, it being obtained
by duress of imprisonment of the grantor's brother, and to procure his release.
But it has been held, that where a wife was compelled to give money, under
threats of accusing her husband of an unnatural crime, it was not robbery.
Rex V. Edwards, 5 C. & P. 518.
1 Rex V. Brown, 2 East, P. C. 781 ; Rex v. Simons, Ibid.
a Rex v. Astely, 2 East, P. C. 729 ; Rex v. Winkworth, 4 C. & P. 444.
8 Rex V. Spencer, 2 East, P. C. 712, 713.
* Rex V. "Winkworth, 4 C. & P. 444, per Yaughan, B., and Parke and Al-
derson, Js. See supra^ (15.
6 Rex t7.DonnalIy, 2 East, P. C. 715 ; 1 Leach, C. C. 229, S. C. ; Rex t;.
Hickman, 2 East, P. C. 728 ; Rex v. Jones, Id. 714 ; Rex v. Elmstead,
1 Russ. on Crimes, 894 ; Rex v. Egerton, Id. 895 ; R. & Ry. 375, S. C. If
the language of the charge is equivocal, it may be connected with what was
afterwards said by the prisoner, when he was taken into custody. Regina
o. Kain, 8 C. & P. 187.
18 •
210 LAW OF EVIDBNCE. [PABT V.
to have robbed him.^ But where the money was given at a
time appointed, not from fear of the loss of reputation, but
for the purpose of prosecuting the offender, it has been held
not to constitute robbery .*
§ 235. But it has also been held, that in order to consti-
tute robbery, in cases of this sort, the money must be parted
with /row an immediate apprehension of present darker ^ upon
the charge being made ; and not where the .party has had
time to deliberate, and opportunity to consult friends, and
especially where he has had their advice not to give the
money, and the presence of a friend when he gave it ; for this
would seem to give it the character rather of the composition
of a prosecution, than of a robbery.^ And it may be added,
that in all the cases in which the fear of injury to the reputa-
tion has been held sufEcient to constitute the offence robbery,
the charge threatened was that of unnatural practices.
Whether any other threat, affecting the reputation, would
suffice, is not known to have been decided, and may possi-
bly admit of doubt*
§ 236. On the trial of an indictment for robbery^ the dyir^
declarations of the person robbed are not admissible in evi-
dence against the prisoner ; such evidence, though sometimes
formerly received, being now held admissible only upon the
trial of a charge for the murder of the declarant.*^
1 Rex r. Gardner, 1 C. & P. 479.
3 Rex V. Fuller, 1 Russ. on Crimes, 896 ; R. & Ry. C. C. 408.
8 Rex V. Jackson, 1 East, P. C. Addenda, xxi. And see Rex t7. Cannon,
R. & Rj, C. C. 146 ; 1 Russ. on Crimes, 894 ; Rex v. Reane, 2 East, P. C.
734. The like distinction is recognized in the law of Scotland. Alison's
Prin. Crim. L. p. 231, 232.
4 Threats of a criminal prosecution for passing counterfeit money bare
been held insufficient Britt v. The State, 7 Humph. 45.
5 See ante, Vol. 1, § 156 ; Rex t;. Mead, 2 B. & C. 605 ; Rex v. Lloyd,
4 C. & P. 233 ; Wilson v. Boerem, 15 Johns. 286.
L
PABT v.]
TREASON.
211
TREASON.
§ 237. Treason against the United States^ as defined in the
Constitution, " shall consist only in levying war against
them, or in adhering to their enemies, giving them aid and
comfort." And it is added, that — " No person shall be
convicted of treason, unless on the testimony of two wit-
nesses to the same overt act, or on confession in open Court." ^
By the Crimes Act, this offence may be committed " within
the United States or elsewhere," and is expressly limited to
persons owing allegiance to the United States.^ In most of
the several States, treason against the State is defined in the
same words, or in language to the same effect ; and the same
amount of evidence is made necessary to a conviction ; ^ but
in a few of the States, both the crime.and the requisite proof
are described with other qualifications. Thus, in New Yorkj
treason is declared to consist, 1. in levying war against the
1 Const. U. S. Art. S, ^ 8. But treason is also a crime ij the common
law. Respublica v. Chapman, 1 Dall. 56 ; 1 Hale, P. C. 76 ; 8 Inst 4 ; 4 Bl.
Comm. 75, 76.
9 Stat April 30, 1790, $1.
3 See Mainey Const Art. 1, ^ IS ; Bev. Stat 1840, ch. 158, ^ 1, 2 ; Mas-
sachusetts, Rev. Stat 1836, ch. 124, §1,2; New Hampshire, Rev. Stat 1842,
ch. 213, § 1 ; Bhode Island, Rev. Stat 1844, Crimes Act, ^ 1, 3, p. 877, 378;
Connecticut, Const. Art. 9, §4; Delaware, Const Art 5, §3; Alabama,
Const Art 6, § 2 ; Texas^ Const 1845, Art 7, § 2 ; California, Rev. Stat
1850, ch. 99, § 17; Michigan, Const Art. 1, ^ 16; Indiana, Const Art 11,
§ 2, 3 ; Arkansas, Const Art 7, § 2 ; Rev. Stat 1887, ch. 44, Div. 2, ^ 1,
p. 238 ; Missouri, Const. Art 13, ^ 15 ; Wisconsin, Const Art. 1, § 10; lotoa,
Const Art 1, § 16 ; Florida, Thompson's Dig. p. 490, ch. 2 ; Louisiana,
Const Art 6, § 2 ; Mississippi, Const Art 7, § 3. In Georgia, (Penal Code,
1883, Div. 3, § 2, Prince's Dig. p. 622,) the crime is defined in the same
manner, but the proof is modified, as will be seen in its proper place.
212 LAW OP EYIDBNOE. [PABT V.
people of this State, within the State ; 2. in a combination
of two or more persons by force, to usurp the government of
the State, or to overturn the same, evidenced by a forcible
attempt made within the State, to accomplish such purpose ;
and 3. in adhering to the enemies of this State, while se-
parately engaged in war with a foreign enemy in the cases
prescribed in the Constitution of the United States, and giving
to such enemies aid and comfort, in this State or elsewhere,^
A similar division and description of the offence is found in
the statute of Mississippi.^ In Virginia^ it is enacted, that
" Treason shall consist only in levying war against the State,
or adhering to its enemies, giving them aid and comfort, or
establishing, without authority of the legislature, any govern-
ment within its limits, separate from the existing government,
or holding or executing, in such usurped government, any
office, or professing allegiance or fidelity to it, or resisting the
execution of the laws, under color of its authority." And the
same amount of proof is required, as in treason against the
United States.^ In New Jersey^ treason is limited to levying
war against the State, and adhering to its enemies, giving
them aid and comfort, by advice or intelligence, by furnish-
ing them money, provisions or munitions of war, by treach-
erously surrendering any fortress, troops, citizen, or public
vessel, or otherwise.* The statute of Pennsylvania on this
subject, enacted during the Revolution, renders it treason in
any person resident within the State and under the protec-
tion of its laws, to take a commission under any public ene-
my ; or to levy war against the State or its government ; or
to aid or assist any enemies, at open war with the State or
United States, by joining their armies, enlisting or procuring
enlistments for that purpose ; or furnishing them with arms
or other articles for t)>eir aid or comfort ; or carrying on a
traitorous correspondence with them; or forming or being
I New York, Rev. Stat Vol. 2, p. 746, (8d ed.)
9 Mississippi, How. & Hutchin's Dig. 1840, p. 691, Penit Code, tit 2, § 9.
3 Virffinia, Rev. St 1849, ch. 190, ^ 1.
* New Jersey, Rev. St 1846, tit 8, ch. 1, § 1, p. 257.
PART v.] TREASON. 213
concerned in foHning any combination to betray the State or
country into their hands; or giving or sending intelligence
to them for that purpose.^ In SotUh Carolina it has been
thought doubtful whether any law concerning treason, ante-
rior to their constitution of 1790, could be of force since that
time ; ^ and in several of the States the opinion has been en-
tertained to some extent, that treason by levying war against
a single State was necessarily an offence against the United
States, and therefore cognizable as such, by none but the
national tribunals.^ But as war may be levied against a sin-
gle State, by«an open and armed opposition to its laws, with-
out any intention of subverting its government, the better
opinion is, that the State tribunals may well take cognizance
of treasons of this description, and of any others directly af-
fecting the particular State alone.^
§ 238. Misprision of treason against the United States, is
when any person, having knowledge of the commission of
any treason, shall conceal, and not, as soon as may be, dis-
close the same to the President of the United States, or some
one of the Judges thereof, or to the Governor of a particular
State, or some one of the Judges or Justices thereof.^ This
offence is defined substantially in the same manner in the
laws of several of the States ; but these statutes are all merely
1 Pennsylvania, Stat Feb. 11, 1777, Dunlop's Dig. ch. 64, § 8, p. 120 ;
Bespublica v. Carlisle, 1 Dall. 35.
8 See S. Car. Statutes at Large, Vol. 2, p. 717, 747, notes by Dr. Cooper,
the aathorized editor. He adds, " I know of no treason law in this State, as
yet." But in a subsequent volume is found a statute making it treason for
any one to be concerned with slaves in an insurrection, or to incite them to
insurrection, or to give them aid and comfort therein. Id. Vol. 5, p. 503 ;
Stat. Dec. 19, 1805, No. 1860.
3 See Livingston's Penal Code for Louisiana, Introductory Report, p. 148 ;
4 Am. Law Mag. 318-S50; Wharton's Am. Crim. Law, p. 785; Walker's
Introd.p. 151,458.
^ Rawle on the Constitution, p. 142, 143; Sergeant on Const Law,
p. 382 ; 1 Kent, Conmi. 442, note, (7th ed.) ; Whart. Am. Crim. Law, 786 ; *
Dorr's Trial, Id. 786-790 ; The People v. Lynch, 11 Johns. 549.
5 Crimes Act, April 80, 1790, § 2.
214 LAW OF KVIDBNCE, [PABT V.
recognitions of the doctrine of the common law, which is pre-
valent in the whole country.^
§ 239. In indictments for treason, it is material to allege
that the party owed allegiance and fidelity to the Stote against
which the treason was committed ; and this allegation seems
equally material in a charge of misprision of treason. It may
be proved by evidence that the party was by birth a citizen
of the State or of the United States, as the case may be ; or
that, though an alien, he was resident here, with his family
and effects. And if he were gone abroad, leaving his family
and effects here, his allegiance to the government is still due
for the protection they receive.*
§ 240. In every indictment for this crime, an overt act also
must be alleged atid proved; for it is to the overt act charged|
that the prisoner must apply his defence. But it is not
necessary, nor is it proper, in laying the overt acts, to state
in detail the evidence intended to be given at the trial ; it
being sufficient if the charge is made with reasonable cer«
tainty, so that the prisoner may be apprised of the nature of
the offence of which he is accused.^ Therefore, if writings
constitute the overt act, it is sufficient to state the substance
of them ; * or, if they were sent to the enemy for the purpose
of giving intelligence, it will suffice simply to charge the pri-
1 4 Bl. ComnL 119, 120; 1 Hale, P. C. 373 ; BTacton,Lib. 3, De Corona,
cap. 3, fol. 118, b. la Florida, the act of endeaToring to join the enemies of
the State, or penuading others to do so, or to aid and comfort them, is de-
clared to be a misprision of treason, as well as knowing of the same, or know-
ing of any treason, and concealing it Thomps. Dig. p. 322.
3 2 Kent, Comm. Lect. 35, p. 1 - 15, 26, [39 - 63, 63, 64] ; 1 East, P. C.
52, 53 ; 1 Hale, 1^. C. 59, 62, 92 ; Vattel, b. 3, § 101, 102.
3 Foster, 194, 320 ; 4 Cranch, 490, per Marshall, C. J., in Burros case ;
2 Burr's Trial, 400.
4 Bex t;. Francia, 6 St. Tr. 58, 73 ; Bex v. Ld. Preston, 4 St Tr. 411 ;
Bex v. Watson, 2 Stark. B. 116, 137, [104, 116-118, ed. 1828.] 8 £ng.
Com. L. Bep. 288.
\
I
FABT v.] TREASON. 215
goner with the overt act of giving and sending intelligence to
the enemy .^
§ 241. Though the evidence of treason must be confined to
the overt act or acts laid in the indictment^ without proof of
which no conviction can be had ; yet, for the purpose of prov-
ing the traitorous intention with which those acts were com-
mitted, evidence of other overt acts of treason, not laid in the
indictment, is admissible, if there be no prosecution for those
acts then pending. And it seems sufficient if such collateral
facts be proved by one witness only ; for the law requiring
two witnesses is limited in its terms to the specific overt act
charged ; leaving all other facts, such as alienage, intention^
&c. to be proved as at common law.^ But if the overt act
charged is not proved by two witnesses, where this is re-
quired by law, so as to be submitted to the Jury, all other
testimony is irrelevant and must be rejected.^ Respecting
the intention of the prisoner, or the object or meaning of the
acts done, we may add, that he is not of necessity bound to
prove this ; but the entire offence must be made out by the
government.*
§ 242. Where the overt act of levying war is alleged to
have been an armed assemblage against the government for
that purpose, this allegation may be proved by evidence of
such an assemblage for any warlike object in itself amount-
ing to an actual or constructive levying of war ; such as, to
prevent the execution of a public law ; ^ to compel the repeal
of a law, or otherwise to alter the law ; to pull down all build-
ings or inclosures of a particular description, or to expel all
1 Bespublicav. Carlisle, 1 Dall. 35.
» Layer's case, 16 How. St. Tr. 215 ; 1 East, P. C. 131 - 128 ; United
States V. Mitchell, 2 Dall. 848. As to the proof of intentioii, see supra^
§14.
3 United States v. Burr, 4 Cranch, 493, 505 ; 2 Burr's Trial, p. 428,
448.
4 Begina v. Frost, 9 C. & P. 129 ; Supra, ^17.
6 Fries's Trial, p. 196.
216 LAW OF BVrDENCB. [PART V.
foreigners, or all the citizens or subjects of a particular coun-
try or nation.^ But if the assemblage appears to have been
for objects of a private or local nature, supposed to affect only
the parties assembled, or confined to particular individuals or
districts, such as, to remove a particular building or inclo-
sure ; or to release a particular prisoner, or the like, this evi-
dence will not support this allegation.^
I Rex u.Ld. Geo. Gordon, 2 Doug. 690; Foster, 211 -815; 1 Hale, P. C.
132, 153; 1 East, P. C. 72-75.
8 1 East, P. C. 75, 76 ; Foster, 210; 1 Hale, P. G. 131, 133, 149. The
term " levying war," in the Constitution of the United States, has been ex-
pounded by Mr. Justice Curtis in the following terms: — ** This settled
inteq)retation is, that the words * levying war ' include not only the act of
making war, for the purpose of entirely overturning the government, hut
also any comhination forcibly to oppose the execution of any public law of
the United States, if accompanied or followed by an act of forcible opposi-
tion to such law, in pursuance of such combination.** ** The following ele-
ments, therefore, constitute this offence : — 1st. A combination, or conspi-
racy, by which different individuals are united in one common purpose.
2d. This purpose being to prevent the execution of some public law of the
United States, by force. 8d. The actual use of force, by such combination,
to prevent the execution of such law. It is not enough that the purpose of
the combination is to oppose the execution of a law in some particular case,
and in that only. If a person against whom process has issued from a Court
of the United States, should assemble and arm his friends, forcibly to pre-
vent an arrest, and, in pursuance of such design, resistance should be made
by those thus assembled, they would be guilty of a very high crime ; but it
would not be treason, if their combination had reference solely to that case.
But if process of arrest issues under a law of the United States, and indivi-
duals assemble forcibly to prevent an arrest under such process, pursuant to a
design to prevent any person from being arrested under that law, and pursu-
ant to such intent, force is used by them for that purpose, they are guilty of
treason. The law does not distinguish between a purpose to prevent
the execution of one, or several, or all laws. Indeed such a distinction would
be found impracticable, if it were attempted. If this crime could not be com-
mitted by forcibly resisting one law, how many laws should be thus resisted,
to constitute it ? Should it be two, or three, or what particular number, '
short of all ? And if all, how easy would it be for the most of treasons to
escape punishment, simply by excepting out of the treasonable design, some
one law. So that a combination, formed to oppose the execution of a law
by force, with the design of acting in any case which may occur and be
within the reach of such combination, is a treasonable conspiracy, and con-
PABT v.] TREASON. 217
§ 243. In the proof of a charge of treason by levying war, it
is not necessary to prove that the prisoner was actually pre-
sent »at the perpetration of the overt act charged; it being
sufficient to prove that he was constructively present on that
occasion. The law of constructive presence is now well set-
tled. Whenever several persons conspire in a criminal enter-
prise, which is to be consummated by some principal act, or
some decisive stroke, to the accomplishment of which certain
other acts or circumstances are directly subordinate or ancil-
lary, though these latter are to be performed at a distance
from the principal scene of action, and consist merely in
watching and warning of danger, or in having ready the
means of instant escape, or the like, the law deems them all
virtually present at the commission of the crime, and there-
Btitutes one of the elements of this crime. Such a conspiracy may be fonned
before the individuals assemble to act, and they may come together to act
pursuant to it ; or, it may be formed when they have assembled, and imme-
diately before they act. The time is not essential. All that is necessary, is,
that, being assembled, they should act in forcible opposition to a law of the
United States, pursuant to a common design to preyent the execution of
that law, in any case within their reach. Actual force must be used. But
what amounts to the use of force, depends much upon the nature of the en-
terprise, and ^e circumstances of the case. It is not necessary that there
should be any military array, or weapons, nor that any personal injury
should be inflicted on the officers of the law. If a hostile army should suiv
round a body of troops of the United States, and the latter should by down
their arms and submit, it cannot be doubted that it would constitute an overt
act of levying war, though no shot was fired, or blow struck. The presence
of numbers who manifest an intent to use force, if found requisite to obtain
their demands, may compel submission to that force which is present and
ready to inflict injury, and which may thus be efiectually used to oppose the
execution of the law. But unfortunately, it will not often be necessary to
apply this principle, since actual violence, and even murder, are the natural
and almost inseparable attendants of this great crime." 4 Monthly Law Re-
porter, p. 4 IS, 414. Thus &r the learned Judge has stated the law of this
species of treason in precise accordance with the views of our greatest jurists.
See United States v. Yigol, 2 Dall. 846 ; United States v. Mitchell, Id. 348,
355 ; Ex parte Bollman, 4 Cranch, 75, 126 ; United States v. Burr, 4 Cranch,
481-486; 2 Burr's trial, 414-420; 3 Story on the Constitution, (1790-
1795 ; 3 Story, Rep. 615.
VOL. m. 19
218 LAW OP EVIDENCE. [PAKT V.
fdre all alike guilty as principals.^ On this ground it is, that
if war is levied with an organized military force, vexiUis eX'
pUcatiSj all those who perform the various military parts of
prosecuting the war, which must be assigned to different per-
sons, may justly be said to levy war. All that is essential to
implicate them, is, to prove that they were leagued in the
conspiracy, and performed a part in that which constituted
the overt act, or was immediately ancillary thereto.^ But if
the personal cooperation of the prisoner in the general enter-
prise was to be afforded elsewhere, at a great distance, and
the acts to be performed by him were distinct overt acts, he
cannot be deemed constructively present at any acts, except
those to which the part he acted was directly and immediatelt/
ancillary.^
* See Commonwealth v. Enapp, 9 Pick. 496 ; 10 Pick. 477 ; 1 Hale, P. C.
ch. 84, per tot ; Supra, tit Accessory ; 4 Cranch, 492, 498.
* Burr's case, 4 Cranch, 471-476.
3 Burr's case, 4 Cranch, 494. '^ It is manifest, that to hold a party to
have been constructively present at an overt act of treason, which treason
itself is already expressly defined by law, is a very different thing from cre-
ating a new species of treason, by judicial construction ; yet these two have
sometimes been contpunded, and, in one instance, by a jurist of great emi-
nence, (see Tucker's Blackstone, Vol. 4, Appendix B.), wl^e reasoning,
however, is sufficiently refuted by the observations of Marshall, C. J., in
Burr's trial, (4 Cranch, 493 - 502.) Professor Tucker puts the case of a
person in Maryland, hearing of Frics's insurrection in Pennsylvania, and
lending a horse or money to a person avowedly going to join the insurgents,
in order to assist him in his journey ; and asks if this would amount to levy-
ing war in Pennsylvania, where the lender never was ? The answer is fur-
nished by referring to the distinction taken by the Court in Burros case.
The indictment must state the specific overt act of treason. If what was
done in Maryland was treasonable in itself, and is so charged, the trial must
be had in Maryland, and the application of the doctrine of constructive pre-
sence is not required. But if the party was one of the conspirators, and his
act constituted a part of the principal overt act of treason perpetrated in
Pennsylvania, the State line, it is conceived, would interpose no objection to
his being legally pariiceps criminis ; any more than though being in Maxy-
land, he shot an officer dead who was on the Pennsylvania side of the line.
If a citizen of Newport, in Rhode Island, stationing himsel^at Seekonk, in
Massachusetts, while Dorr's troop of insurgents were storming the arsenal in
PART y.J TREASON. 219
§ 244. The charge of treason by adhering to the public ene-
mies^ giving them aid and comfort^ may be proved by evi-
dence of any overt acts, stated in the indictment, done with
that intent, and tending to that end; such as, joining the
enemy ; liberating prisoners taken from him ; holding a for-
tress against the State, in order to assist the enemy ; furnish-
ing him with provisions, intelligence, or munitions of war;
destroying public stores in order to aid him ; surrendering a
fortress to him ; or the like.^ Public enemies are those who,
not owing allegiance to the State, or to the United States,
are in open and warlike hostility thereto ; whether they act
under authority from a foreign State, or, merely as voluntary
adventurers. And it is sufficient to prove that a state of
hostility exists in fact, without proving any fori&al declara-
tion of war.2
§ 245. It is also to be noted, that " in treason, all the par-
ticipes criminis are principals ; there are no accessories to this
crime. Every act, which, in the case of felony, would render
a man an accessory, will, in the case of treason, make him a
principal." '
Providence, had supplied them with arms and ammunition for that purpose,
could he have escaped conviction as a traitor in the county of Providence,
on the ground that he was never personally in that county ? Yet here
would be no constructive treason. The crime would be treason by levying
war. The overt act would be storming the arsenal in Providence ; in which
the prisoner bore an essential, though a subordinate part And if he bore
such part, it surely can make no difference where he stood while he per-
formed it" Monthly Law Rep. p. 416, 41 7.
1 Foster, 22, 197, 217, 219, 220 ; 1 Ea8t,P. C. 66, 78, 79 ; 1 Hale,P. C. 146,
164 ; 3 Inst 10, 11 ; United States ©. Hodges, 2 Wheeler, Cr. C. 477 ; Rex
V. Ld. Preston, 12 How. St Tr. 409 ; Rex v. Vaughan, 13 How. St Tr.
486; Rex v, Gregg, 14 How. St Tr. 1371 ; Rex v. Hensey, 1 Burr. 642 ;
Rex V. Stone, 6 T. R. 527.
9 1 Hale, P. C. 163, 164 ; Foster, 219 ; 1 East, P. C. 77, 78 ; 4 Bl. Ck)mm.
82, 83.
3 Fries's trial, p. 198, per Chase, J. No exception was taken to this doc-
trine, in that case, though the prisoner was defended by the ablest counsel of
that day, and the case was one of deep political interest The same law is
laid down by Ld. Hale, as " agreed of all hands ;" 1 Hale, P. C. 233. Ld.
220 LAW OF EVIDENCE. [PART V.
§ 246. In regard to the mimber of witnesses requisite to con-
vict of treason, it is now universally settled, both in England
and this country, that there must be at least two witnesses.
This rule was enacted in England in the reign of Edw. 6,^
and has been adopted in all the States of the Union. In the
interpretation of the early English statutes, it was held suffi-
cient if one witness testified to one overt act, and another to
another, of th6 same treason;^ and this construction was
afterwards adopted by act of Parliament.^ The same con-
struction is understood to be the rule of evidence in trials for
treason against those several States of the Union which have
not made a different provision. But the Constitution of the
United States, as we have seen, provides that " No person
shall be convicted of treason, unless on the testimony of two
witnesses to the same overt actj or on confession in open
Court ; " and this provision has been adopted by the consti-
tutions and statutes of several of the individual States.^ In
Coke calls it '< a sure rule in law." 3 Inst. 138. And see Throgmorton's
case, 1 Dyer, 98, b. pi. 56 ; Foster, 213 ; Supra, tit. Accessories, per tot. ;
1 East, F. C. 93, 94. Hie application of this doctrine, howeyer, to cases
under the Constitution of the United States, was questioned by Marshall,
C. J., in Burr's case, 4 Cranch, 496-502.
1 Stat 1 Ed. 6, c. 12 ; and 5 & 6 Ed. 6, c. 11.
s This construction was settled upon the trial of Ld. Stafford, who was in-
dicted for compassing the death of the king. ^<And upon this occasion my
Lord Chancellor, in the Lords House, was pleased to communicate a notion
concerning the reason of two witnesses in treason, which he said was not
veiy fiuniliar, he believed ; and it was this, — anciently, all or most of the
Judges were churchmen and ecclesiastical persons, and, by the canon law,
now and then in use all over the christian world, none can be condemned
of heresy but by two lawful and credible witnesses ; and bare words may
make a heretic, but not a traitor, and, anciently, heresy was treason ; and from
thence the parliament thought fit to appoint, that two witnesses ought to be
for proof of high treason." T. Raym. 408.
3 Stat. 7 W. 3, c. 3, ^ 2 ; which enacts, tiiat no person shall be indicted,
tried, or attainted of treason or misprision of treason, " but upon tJie oaths
and testimony of two law&l witnesses, either both of them to the same overt
act, or one of them to one and the other of them to another overt act of the
same treason ; " or upon his confession, &c. The same rule, in regard to
treason only, has been enacted in New York, Rev. St. Vol. 2, p. 820, ( 15.
* See supra, ^237. In Illinois, it is merely required that the party be
i< duly convicted of open deed, by two or more witnesses." Bev. Stat 1845,
PABT v.] TREASON. 221
these States, therefore, and in trials for treason against the
general government, in the Courts of the United States, both
the witnesses must speak not only to the same species of
treason, but to the same overt act charged in the indictment.
But whether where the overt act, constituting the treason is to
be proved by evidence of several distinct facts, which, separate-
ly taken, may each appear innocent, but which in the aggregate
are treasonable, it be necessary, under the national Constitu-
tion, that each' of the two witnesses should be able to testify
to all the facts of which the overt act of treason is composed,
is a point not known to have been expressly decided.
§ 247. The proof of misprision of treason is regulated by
the rules of the common law, as in other cases of crime, in
all those States where it has not been changed by statute.^
§ 248. It may here be added, that though one witness may
be sufficient to prove a confession of treason^ where such con-
fession is offered in evidence merely as corroborative of other
testimony in the cause ; yet under the law of the United
States, and of those States which have adopted a similar
rule, the prisoner cannot be convicted upon the evidence of
his confession alone, unless it is made in open Court^
ch. 30, ^ 20. In Florida^ and in ConnectictU, the testimony of two witnesses,
*< or that tohich is equivalent thereto" is made necessary to every capital con-
viction. Thompson's Dig. p. 258, ^ 159 ; Connecticat Rev. Stat. 1849, tit
6, $159. In GeorffiOf it is required that the party be " legally convicted of
open deed, by two or more witnesses, or other competent and credible tesH'
many," &c. Penal Code, 1838, Div. 3, ^ 2 ; Prince's Dig. p. 162. In Penn-
syicanioy the language of the law is, that he <' be thereof legally convicted
by the evidence of two sufficient witnesses," &c. Stat. Feb. 11, 1 777 ; Dun-
lop's Dig. p. 120.
^ The onlj exception now known to the author, is the provision in Maine,
Rev. St. 1840, ch. 153, ^ 4 ; which requires the same amount of evidence in
proof of misprision of treason, which is required by- Stat 7 W. 3, ch. 3, quo-
ted supra, ^ 246, in cases of treason. In Pennsylvanioy persons charged with
treason or misprision of treason, may be proceeded against for a misdemean-
or, and couYicted on the testimony of one witness alone. Stat Meur. 8, 1780 ;
Dunlop's Dig. ch. 69, p. 127.
9 Supra, § 237 ; Ante, YoL 1, ^ 255. And see 1 East, P. C. 181 - 135 ;
Bespublica v. Roberts, 1 Dall. 39 ; Respublica v. McCarty, 2 Dall. 86,
;9*
PART VI.
OF EVIDENCE IN PROCEEDINGS
IN
EQUITY.
PART VI.
OF EVIDENCE IN PROCEEDINGS IN EQUITY.
CHAPTER I.
PRELIMINARY OBSERVATIONS.
§ 249. In the first volume of this work, those general rules
of Evidence have been considered, which are recognized in
all the tribunals of the country, whatever inay be their vari-
ous modes of administering justice ; including, of course, the
general principles and rules of this branch of the law, as ad-
ministered in Courts of Equity. Those principles and rules,
therefore, will not here be repeated ; it being proposed in this
place merely to treat of matters in the law of Evidence pecu-
liar to proceedings in Courts of Equity, and in other Courts,
which employ forms of proceedings, substantially similar to
those.
§ 250. The rules of evidence, as to the matter of fact, as
Lord Hardwicke long since remarked, are generally the same
in equity as at law. It is only in particular cases that they
differ; and these are either the investigation of frauds or
trusts, or cases growing out of the peculiar nature of the pro-
ceedings.^ These proceedings, as on a former occasion has
> Manning v, Lechmere, 1 Atk. 453 ; Glynn v. Bank of England, 2 Vez.
41 ; Man v. Ward, 2 Atk. 228. And see Dwight v. Pomeroy, 17 Mass. 303,
325 ; Seed v. Clark, 4 Monr.' 20 ; Baugh v, Bamsey, Id. 157.
226 LAW OF BVrDBNCB. [PART VI.
been observed,^ are exceedingly diverse from those at com-
mon law, both in the forms of conducting the allegations of
the parties and in the means by which evidence is obtained.
For though at law, the defendant may, by a plea of the gene-
ral issue, put the plaintiff upon the proof of every material
fact he has alleged, and is not bound to make a specific an-
swer to any ; yet, in proceedings by bill in Equity, the plain-
tiff may require the defendant to answer particularly^ and
upon oathy to every material allegation^ well pleaded, in the
bill ; and the defendant also, by a cross bill, may elicit from
the plaintiff a similar answer, under the same sanction ; each
party being generally permitted to search the conscience of the
other, for the discovery of any facts material to his side of
the controversy. The object of this stringent course of pro-
ceeding is to furnish an admission of the case made by the
bill, either in aid of proof, or to supply the want of it, and to
avoid expense.^ The plaintiff having thus appealed to the
conscience of the defendant for the truth of what he has
alleged, it results, as a reasonable and just consequence, that
the answer of the defendant, under oath, so far as it is respon-
sive to the bill, is evidence in the cause, in proof of the facts
of which the bill seeks a disclosure ; and being so, it is con-
clusive evidence in the defendant's own favor, unless, as will
hereafter be seen, the plaintiff can overcome its force, either
by the testimony of two opposing witnesses, or of one wit-
ness, corroborated by other facts and circumstances sufficient
to give it a greater weight than the answer.* The obvious
utility of this practice of examining the defendant himself
has led to its adoption, to some extent, in several of the
United States, in suits at common law, as will be subse-
quently shown.
§ 251. Another material diversity between proceedings in
1 Ante, Vol. 2, § 4.
^ Wigram on Discovery, Introd. § 2.
3 Ante, Vol. 1, § 260; 2 Story, Eq. Jur. § 1528; Grealey on Evid. in
Equity, p. 4 ; Pember t>. Mathers, 1 Bro. Ch. R 52, and cases in note by
Perkins ; Evans v, Bicknell, 6 Ves. 183.
PABT VI.] PBBLIMINART OBSBRVATIONS. 227
Equity and at Common Law, affecting the rules of evidence,
is in the manner of taking the testimony of witnesses ; the lat-
ter requiring the examination to be open and vivd voce ; while
in Equity it is taken secretly, and in writing.^ The reason
of this diversity is said to be found in the difference of the
objects sought to be attained, and in the result of the contro-
versy. At Common Law, the Jurors are not to decide on
the general merits of the whole case, nor to elicit a conclusion
of law from a series of facts laid before them ; but are merely
to find the truth of the particular issue of fact submitted to
their decision. In order to do this, it is important that the
witnesses should be examined and cross-examined publicly,
in their presence,^ that the entire mass of evidence should be
commented on by advocates, and that it be summed up to
them, with proper instructions, by the Court. After this, the
Court renders the proper judgment upon the whole case, as
it appears both in law and in fact upon the record. The evi-
dence is not judicially recorded ; for its results are found in
the verdict ; and there is no occasion to preserve it for the
information of any appellate Court, the Common Law not
permitting any appeal, in the modern sense of the term, from
a lower to an higher tribunal. But in Equity, the determina-
tion of the particular issues of fact is not the principal
object, though essential to its final attainment; but the
object is, first to obtain and preserve a sworn detail of facts,
on which the Court may, upon deliberation, adjudge the
equities, and secondly, to preserve it in an authentic record.
^ In the American practice, in those States whose mode of proceeding
most nearly approaches the old Chancery forms, the interrogatories to wit-
nesses are ordinarily filed in the Clerk's office, and copies are served on the
adverse party by a certain day, in order that he may prepare and file his
crosB-interrogatories ; and the caption to the interrogatories usually states
the names of the witnesses, if known. The parties, therefore, can generally
form probable conjectures of the drift of the evidence to be taken, though
its precise import may remain* unknown until the publication of the deposi-
tions.
' The student will hardly need to be reminded that the use of depositions,
in trials at common law, is only authorized by statutes.
228 LAW OP EVIDENCE. [PART VI.
for the use of an higher tribunal, should the cause be carried
thither by appeal ; — a proceeding, though unknown to the
Common Law, yet of familiar use in Courts of Equity, Admi-
ralty, and Ecclesiastical jurisdiction.^
§ 252. This mode of taking testimony in Equity is open to
two objections ; first, that its protracted nature, by interroga-
tories filed from time to time,^ enables the party to discover
any defects in his proof, and furnishes the temptation to
remedy them by false testimony; and secondly, that its
secrecy may not only afford facilities to perjury, but may lead
to imperfect statements of the truth, especially where the
party has so artfully framed his interrogatories as to elicit
testimony only as to the part of the transaction most favora-
ble to himself. The former of these objections is intended to
be obviated not only by the entire secrecy with which the
testimony is taken, no person being present except the exa-
mining officer and the witness, but also by the rule, that,
until all the testimony is taken, and the depositions are
opened and given out, or, as it is termed, until publication is
passed, neither party is permitted to know what has been
1 Adams's Doctr. of Equity, p. 365, 866.
^ It was the ancient practice, when testimony was to be taken under a
commission, to exhibit all the interrogatories and cross-interrogatories before
the issuing of the commission ; aflcr which, no others could be filed ; the
commissioners being sworn to examine the witnesses upon the interrogatories
" now produced and left with you." But in the Orders in Chancery in 1845,
Reg. 104, the word " now" was omitted from the oath; and even prior to
that period, it was " the practice in country causes in England, to feed the
commissioners from time to time with interrogatories for the examination of
witnesses, as they can be presented either for original or cross-examination,
until the commissioners find that the supply of witnesses is exhausted.**
Campbell u. Scougal, 19 Ves. 664. Whether new interrogatories can now
be exhibited before a commissioner, under the English rule, is doubted.
2 Dan. Ch. Pr. 1053, 1085. But the practice in the Courts of the United
States, and, as far as is known to the author, in the State Courts also, is to
permit parties to file new interrogatories to different witnesses, from time to
time, and to take out new commissions, as often as they choose, within the
period allowed for taking testimony. Keene v. Meade, 3 Pet 1, 10 ; 1 Hofim.
Ch. Pr. 476.
PART VI.] PBELIMINART OBSBRYATIOXS. 229
testified ; and that after publication, no witness can be exa-
mined without special leave of the Court. The latter objec-
tion is more difficult of remedy, but it is in a great measure
obviated by the rule, hereafter to be expounded, tjiat, in order
to give weight to evidence, the facts which it is intended to
establish must previously have been alleged in the plead-
ings.^
§ 253. A further diversity between the course of Courts of
Equity and Courts of Common Law, will be found in the
adjustment of the burden of proof j in their treatment of fidi^
dary and confideniial relations between the parties. If, for
example, an action at law is brought upon the bond of a cli-
ent, given to his attorney, &c., it will ordinarily be sufficient
for the plaintiff to produce the bond and prove its execution ;
the bond being held, at law, conclusively to import a valuable
and adequate consideration. But in a Court of Equity, in
taking an account of the pecuniary transactions between an
attorney and his client, the production of a bond, given by
the latter to the former, will not be deemed sufficient prima
facie evidence of a debt to that amount, but the burden of
proof will still be on the attorney to prove an actual payment
of the entire consideration for which the bond was given.^
The great principle by which Courts of Equity are governed
in such cases, is this, that he who bargains in matter of ad-
vantage, with a person placing confidence in him, is bound
to show that a reasonable use has been made of that confi-
dence.^ This rule, in its principle, applies equally to parents,
guardians, trustees, pastors, medical advisers, and all others,
standing in confidential relations with those with whom they
treat ; the burden of proof being devolved in Equity on such
persons, to establish affirmatively the perfect fairness, ade-
quacy and equity of their respective claims.*
1 Adams's Doctr. of £q. p. 867.
9 Jones V. Thomas, 2 Y. & C. 498 ; Lewes v. Morgan, 8 Y. & J. 230. And
see 1 Story, £q. Jur. ( 809 > 814.
8 Gibson v, JeyeB, 6 Yes. 278, per Ld. Eldon.
Ibid. And see 1 Story, £q. Jur. ( 811 - 814, and cases there cited ;
VOL. III. 20
230 LAW OP EVIDBNCB. [PART VI.
§ 254. Again, there is said to be a diversity in ilte amount
or quantity of evidence which those Courts respectively re-
quire, in order so to establish allegations of fraud or trust
as to entitle the party to a verdict or a decree. In both
Courts the rule is well settled, that fraud is never to be pre-
sumed, but must always be established by proofs.^ But
Courts of Equity, it is said, will act upon circumstances, as
indicating fraud, which Courts of Law would not deem satis-
factory proofs ; or, in other words, will grant relief upon the
ground of fraud, established by presumptive evidence, which
evidence Courts of Law would not always deem sufficient to
justify a verdict.^ Examples of this class are found where
Courts of Equity will order the delivery up of post obit and
marriage-brocage bonds, and composition-bonds between a
bankrupt and a preferred creditor, to induce him to sign the
certificate ; these being presumed fraudulent.^
§ 255. These diversities in the course of proceeding appear
to have been the cause of all the modifications which the
rules of evidence, as they exist at Common Law, have under-
gone in the Court of Chancery in England ; the law of evi-
Hatch V. Hatch, 9 Yes. 292, 296, 297 ; 4 Dcsaus. 681 ; Hugucnin v. Baso-
ley, 14 Ves. 273 ; Thompson v. Heffernan, 4 Dm. & War. 285; Popham v.
Brooke, 6 Russ. 8 ; Dent v. Bennett, 2 Keen, 539 ; Adams's Doctr. of £q.
p. 184, 185.
1 Such is the rule of the Roman Civil Law. Dolum ex indiciis perspicuis
probari convenit Cod. lib. 2, tit 21, 1. 6. Or, as the commentators ex-
pound it, indiciis Claris et manifestis. Mascard. De Prob. Vol. 2, ConcL 531.
Henoch. De Praesumpt lib. 4; Prtesumpt. 12, n. 2. Mascardus, in com-
menting on the rule. Dolus regulariter non praesumitur, states a large num-
ber of exceptions to the rule; but, in truth, they are only cases in which
fraud is indirectly proved, being deduced, as an inference of fact, from other
&cts proved in the case, as is ordinarily done by Juries, in trials at law.
Mascard. De Prob. Vol. 2, Concl. 532. The indicia of fraud which he there
enumerates are worthy the attention of the student.
9 1 Story Eq. Jur. ^ 190-193, and cases thero cited.
3 Chesterfield v. Janssen, 1 Atk. 301, 352; Fullager v. Clark, 18 Yes.
481, 483.
PABT VI.] PRELIMINART OBSERVATIONS. 231
dence, as administered in the Courts of Common Law and
of Equity, being in other respects generally the same.
§ 256. In the national tribunals of the United States,
where the jurisdiction, both at law and in equity, is nested in
the same Courts, the course of proceeding is nearly the same,
in its main features, as it was in the year 1841 in the High
Court of Chancery in England ; many of whose Orders of
that year were adopted in the Rules of Practice ordained by
the Supreme Court in 1842 ; ^ with a general reference to the
then existing English practice in Chancery, as furnishing just
analogies for the regulation of the practice in the Courts of
the United States, in all cases not otherwise provided for«^
The same general course of practice is adopted in several of
the individual States, which still retain a separate Court of
Chancery, distinct from the Courts of Common Law. Such
is the case in the States of New Jersey, Delaware, Tennes-
see, South Carolina, Mississippi, and Alabama.^ In these
States, therefore, at least, as well as in the national tribunals,
the rules of evidence, peculiar to proceedings in Chancery,
may be supposed to be generally recognized and observed ;
and all these rules it is proposed, for that reason, to state and
explain ; especially as many or all of them may be applicable,
to some extent, and in various degrees, in the practice of the
other States.
§ 257. But in all the States, except those above named.
I See Reg. Gren. Sup. Court, U. S. 1 How. S. C. R. p. xli. -Ixx.
9 Idem. p. Ixiz. Reg. xc. The course of Chancery practice in England
has recently undergone a total change, by the statute of 15 & 16 Vict c. 86,
and the new Orders thereupon made; greatly amplifying and improving the
proceedings. See note, at the end of this chapter.
3 The office of Chancellor still exists in Maryland^ but, by the Constitu-
tion, as revised and adopted in 1S51, it is to cease in two years from that
time. See Art 4, ^ 23. In Mississippi^ the Constitution establishes a
S uperior Court of Chancery, but authorizes the Legislature to give to the
Circuit Courts of each county Equity jurisdiction, in cases wliere the value
in controversy does not exceed five hundred dollars. Art 4, ^ 16.
232 LAW OP EVIDENCE. [PAUT VI.
the jurisdiction in Equity is vested in the Courts of Common
Law ; and in many of these, the course of proceeding, in
several important particulars, has been so materially changed,
that it is hardly possible to construct a treatise on evidence
in Equity, equally applicable or useful in them all. Thus, in
the States of New York, Indiana, Georgia, Louisiana, Texas,
and California, there is no distinction in the forms of remedy
or mode of trial, in civil cases of any description, whether
cognizable in other States, in Courts of Equity or of Com-
mon Law ; but every suit is prosecuted and defended by
one uniform mode of petition and answer, to which no oath
is required.^ It is obvious, therefore, that, in these States,
that part of the law of evidence which relates to the eiTect
of the defendant's answer as evidence in the cause, has but
little force, except so far as it may contain voluntary admis-
sions of fact against himself.^
1 The Judiciary Act of Congress, (1789, cb. 20, ^ S4,) provides that the
laws of the several States, except where the constitution, treaties, or statutes
of the United States shall otherwise require or provide, shall be regarded as
rules of decision in trials at common law, in the Courts of the United States,
in cases where they apply. This provision is held to include those statutes
of the several States which prescribe rules of evidence in civil cases, in tri>
als at common law. McNiel v. Holbrook, 13 Pet. 84, 89. But it has been
decided that the adoption of State practice must not be understood as con-
founding the principles of law and equity ; that the distinction between law
and equity is established by the national ConMitution ; and that, therefore,
though a party, seeking to enforce a title or claim at law in the Courts of
the United States, may proceed according to the forms of practice adopted
in the State where the remedy is pursued ; yet, if the claim is an equitable
one, he must proceed according to the rules which the Supreme Court of
the United States has prescribed for the regulation of proceedings in Equity ;
notwithstanding the State laws have abolished the distinction of forms of
proceeding at law and in equity, and have established one uniform and
peculiar mode of remedy for all cases. Bennett v. Butterworth, 11 How.
S. C. ft. 669. And see Livingston v. Story, 9 Pet. 632 ; Gaines v. Relf,
15 Pet. 9.
9 In all cases, in the six States above mentioned, and in New Hampshire,
and in cases in Equity, in New Jersey y Ohio, Wisconsin, Missouri, Mississippi,
and Arkansas, provision is made by law by which parties may, under certun
regulations, examine each other as witnesses in the cause, thus superseding,
to a great extent, the use of cross-bills. See ante, Yol. 1, ^ 861, note.
PART VI.] PRELmiNABY OBSERVATIONS. 233
§ 258. In all the States not already named, the proceeding
in Equity is understood to be by bill and answer, according
to the usual practice in Chancery ; though subject to some
modifications. Thus, in Connecticut, though the complaint
is by bill, the defence is either by demurrer, or by a plea of
general denial of the plaintiffs complaint, and this without
oath ; no oath being required of the defendant, except to his
answer to a bill of discovery ; ^ or, by a hearing of the bill,
without plea, the defendant being permitted at the hearing to
prove any matter of defence.
§ 259. In many other States it is either expressly enacted,
or implied from existing enactments and therefore always
permitted, that the trials of fact, in Chancery cases, shall or
may be by witnesses orally examined in Court, or by deposi-
tions, taken in the same manner and for the same causes as
at law.^ By force of these provisions, therefore, and this
course of practice, all that portion of the law of evidence in
Equity which relates to the mode of taking testimony, and
requires it to be secret, and by depositions, is rendered obso-
lete in more than half the territory of the United States.
§ 260. Another and very material inroad upon the regular
practice in Chancery is made in those States in which it is
the right of the party to have a trial by jury of all questions
of fact, in cases in Equity, as well as at Law. In the Con-
stitution of the United States, it is provided, that '< In suits
at common law, where the value in controversy shall exceed
I Dtttton's Dig. p. 521, 525, 526, 530; Broome v. Beers, 6 Conn. 208,
209.
' Such, of coarse, is the practice in those States where bat one form of
remedy is parsaed in all civil cases. See also Missouri, Bev. Stat. 1845, ch.
137, art 3, ( 10, U; Georgia, Hotchk. Dig. p. 583, 584; South Carolina,
4 Griff. Beg. 830, 870 ; lUinois, Bev. Stat 1845, ch. 40, ^ 11 ; Stat 1849,
Feb. 12, ^ 1 ; Florida, Thomp. Dig. p. 461 ; Ohio, Bev. Stat 1841, ch. 46,
^ 1 ; Michigan, Bev. Stat 1846, ch. 90, ^ 49, 50, 51, 57 ; Broome v. Beere,
tupra; MassaehusetU^ Stat. 1859, ch. 312, ^ 85 ; Wisconsin, Const Art 7,
^19.
20*
234 LAW OF EVIDENCE. [PART VI.
twenty dollars, the right of trial by Jury shall be preserved ;
and no fact, tried by Jury, shall be otherwise re-examined in
any Court of the United States, than according to the rules
of the common law." ^ This provision has been construed
to embrace all suits, which are not of equity and admiralty
jurisdiction, whatever may be the peculiar form which they
may assume to settle legal rights ; and the latter clause of
the article has been held to be a substantial and independent
clause.^ This being the case, the question may well arise
1 Const XT. S. Amendments, Art. 7.
9 Parsons v, Bedford, 3 Peters, A$S. In this case, which was broaght np
from Louisiana, where all civil proceec^ngs are by petition and answer, Mr.
Justice Story, in delivering the judgment of the Court, expounded the arti-
cle in question in the following terms : — "At this time," (referring to the
time of its adoption,) " there were no States in the Union, die basis <^
whose jurisprudence was not essentially that of the conmion law in its widest
meaning ; and probably no States were contemplated, in which it would not
exist. The phrase ' common law,' found in this clause, is used in contradis-
tinction to equity, and admiralty and maritime jurisprudence. The ccmsti-
tution had declared, in the third article, * that the judicial power shall
extend to all cases in lato and equity arising under this constitution, the laws
of the United States, and treaties made, or which shall be made under their
authority,' &c., and to all cases of admiralty and maritime jurisdiction. It is
well known that in civil causes, in Courts of Eqiuty and Admiralty, Juries do
not intervene, and that Courts of Equity use the trial by Jury only in extra-
ordinary cases, to inform the conscience of the Court When, therefore, we
find that the amendment requires that the right of trial by Jury shall be
preserved in suits at common law, the natural conclusion is, that tlus dis-
tinction was present to the minds of the fisameis of the amendment. By
common law, they meant what the constitution denominated in the third arti-
cle * law ; ' not merely suits which the common law recognized among its
old and settled proceedings, but suits in which legal rights inrere to be ascer-
tained and determined, in contradistinction to those where equitable rights
alone were recognized, and equitable remedies were administered ; or wheie,
as in the admiralty, a mixture of public law, and of maritime law a&d equity,
was ofWn found in the same suit. Probably there were few, if any, States
in the Union, in which some new legal remedies, differing fix>m the old com-
mon-law forms, were not in use ; but in which, however, tlie trial by Jury
intervened, and the general regulations in o&er respects were according to
the course of the common law. Proceedings in cases of partition, and of fo-
reign and domestic attachment, might be cited as examples varionaly adopted
and modified. In a just sense, the amendment, then, may well be construed
PABT VI.] PREUMINABY OBSEEVATIONS. 235
whether the finding of the Jury is not thereby rendered con-
clnsive, in issues oat of Chancery.
to embrace all suits which are not of equity and admiralty jurisdiction, what-
ever may be the peculiar form which they may assume to settle legal rights.
And Congress seems to have acted with reference to this exposition in the
Judiciary Act of 1789, ch. 20, (which was contemporaneous with the propo-
sal of this amendment) ; for in the ninth section it is provided, that ' the
trial of issues in &ct in the District Courts in all causes, except civil causes
of admiralty and maritime jurisdiction^ shall be by Jury ; ' and in the twelfUi
section it is provided, that ' the trial of issues in fact in the Circuit Courts
shall in all suits, except those of equity ^ and of admiralty and maritime juris-
diction, be by Jury ; ' and again, in the thirteenth section, it is provided,
that 'the trial of lasueB in fact in the Supreme Court in all actions at kae
against citizens of the United States, shall be by Jury.' But the other
clause of the amendment is still more important ; and we read it as a sub-
stantial and independent clause. < No fact tried by a Jury shall be other-
wise re-examinable, in any Court of the United States, than according to
the rules of the common law.' This is a prohibition to the Courts of the
United States to re-examine any facts tried by a Jury in any other manner.
The only modes known to the common law to re-examine such facts, are the
granting of a new trial 'by the Court where the issue was tried, or to which
the record was properly returnable ; or the award of a venire facias de novo,
by an appellate Court, for some error of law which intervened in the pro-
ceedings. The Judiciary Act of 1789, chap. 20, sec. 1 7, has given to all the
Courts of the United States ' power to grant new trials in cases where there
has been a trial by Jury, for reasons for which new trials have usually been
granted in the Courts of law.' And the appellate jurisdiction has also been
amply given by the same act (sec. 22, 24) to this Court, to redress errors of
law ; and for such enora to award a new trial, in suits at law which have
been tried by a Jury. Was it iiie intention of Congress, by the general
language of the aet of 1824, to alter the appellate jurisdiction of this Court,
and to confer on it the power of granting a new trial by a re-cxamination of
the facts tried by tibe Jury ? to enable it, after trial by Jury, to do that in
respect to the Courts of the United States, ntting in Louisiana, which is
denied to such Courts sitting in all die othei States in the Union ? We
think not. No general words, purporting only to regulate the practice of a
particular Court, to conform its modes of proceeding to those prescribed by
the State to its own Courts, ought, in our judgment, to receive «n interpret-
ation which would create so important an alteration in the laws of the
United States, securing the trial by Jury. Especially ought it not to receive
such an interpretation, when there is a power given to the inferior Court
itself to prevent any discrepancy between the State laws and the laws of the
United States ; so that it would be left to its sole discretion to supersede, or
236 LAW OF EVIDENCE. [PABT VI.
§ 261. In pursuing this inquiry, it will be expedient to con-
sider, for a moment, the object, and effect of a trial by Jury,
in proceedings which are strictly according to the ancient
course in Chancery. The Chancellor has no power to sum-
mon a Jury to attend him; but tries the whole matter in
controversy alone.^ By the theory of equity proceedings, the
Court addresses itself to the conscience of the defendant, and
the evidence is adduced to confirm or to refute the answer
he may give, upon his oath, or to sustain the allegations in
the bill which he is unable to answer, and to enlighten the
conscience of the Chancellor as to the decree which in equity
he ought to render. He may, if he pleases, assume to him-
self the determination of every matter of fact suggested by
the record ; but if the facts are strongly controverted and the
evidence is nearly balanced ; or if one of the parties has a
peculiar right to a public trial, upon the fullest investigation,
as, if the will of his ancestor, or his own legitimacy and title
as heir at law is questioned ; or the Chancellor feels a diffi-
culty npon the facts, too great to be removed by the report
of the Master or Commissioner; in these, and other cases of
the like character, it is the practice in general for the Chan-
cellor to direct an issue to be tried at law, to relieve his own
conscience, and to be satisfied, by the verdict of a jury, of the
to give concluBive efTect in the appellate Court to the verdict of the Jur^r.
If, indeed, the construction contended for at the bar were to be given to the
act of Congress, we entertain the most serious doubts whether it would not
be unconstitutional. No Court ought, unless the terms of an act rendered
it unavoidable, to give a construction to it which should involve a violation,
however unintentional, of the constitution. The terms of the present act
may well be satisfied by limiting its operation to modes of practice and pro-
ceeding in the Court below, without changing the effect or conclusiveness of
the verdict of the Jury upon the &ctB litigated at the triaL Nor is there
any inconvenience from this construction ; for the party has still his remedy,
by bill of exceptions, to bring the fiicts in review before the appellate Court,
80 far as those facts bear upon any question of law arising at the trial ; and
if there be any mistake of the facts, the Court below is competent to redrev
it, by granting a new trial." See 3 Peters, 446 - 449.
1 1 ^pence on Eq. Jur. 887.
PABT VI.] PRELIMINARY OBSERVATIONS. 237
truth or falsehood of the facts in controversy.^ The object of
a trial at law thus being solely ^ for the purpose of informing
the conscience of the Court," it results that the verdict is not
conclusive or binding on the Court ; but the Chancellor is
still at liberty, if he pleases, to treat it as a mere nullity, and
to decide against it, or to send it back to another Jury.^
§ 262. It is obvious, however, that this power in the Chan-
cellor to disregard the finding of the Jury cannot exist in any
of the United States where the trial of facts, in cases in
Equity, is secured to the parties by constitutional or statute
law, as a matter of right. The law, in granting such right,
where it is seasonably asserted by the party, takes away from
the Chancellor the authority to determine any question of
fact material to the decision, and refers it exclusively to the
Jury ; the Judge retaining only the power to apply the law
of Equity to the facts found by the Jury, in the same man-
ner and to the^ame extent as at common law. It is only
where no such right of the party is recognized by law, and
where the resort to a Jury is left to the discretion of the
Judge, in aid of his own judgment, that he is at liberty to dis-
regard the finding of the Jury, or to determine the facts for
himself.
§ 263. That the verdict of the Jury may be conclusive,
even in the national tribunals, may be inferred from the expo-
sition which has been given by the Supreme Court to that
provision of the Constitution by which the trial by Jury is
secured. Thus, in the case in Louisiana, above cited,^ which
was instituted in the District Court of the United States,
1 2 Daniers Chan. Pract 1285, 1286, and notes hy Perkins ; 1 Hofim.
Ch. Pr. 502, 603 ; 8 BL Comm. 452, 458.
« Grcsley on Eq. Evid. p. 498, 527, 628 ; Barnes ». Stuart, 1 Y. & C. 189,
per Alderson, B.
3 Parsons v. Bedford, supra, ^ 260. And see Story on the Constitution,
Vol. 3, p. 626-648, § 1754 - 1766.
238 LAW OF EVIDENCE. [PART VI.
according to the form of proceeding in the Courts of that
State, which is uniform in all cases, the cause was tried by a
special Jury, in the ordinary manner, and was taken to the
Supreme Court by writ of error, founded on the refusal of
the District Judge to order that the evidence be taken down
in writing, according to the course of practice in that State,
which is required by law, to enable the appellate Court to
exercise the power of granting a new trial, and of revising the
judgment of the inferior Court. But the exception was over-
ruled, on the ground that the error complained of was in a
matter of practice only, which could not regularly be assigned
for error ; and that by the constitution,^ ^ No fact, ouce tried
by a Jury, shall be otherwise re-examined in any Court of
the United States, than according to the rules of the common
law ; " and that no power was given to the Supreme Court,
to reverse a judgment for any error in the verdict of the
Jury at the trial. It seems, therefore, that where the verdict
of a Jury, in the Courts of the United States, cannot be set
aside for some cause known in the rules for granting new
trials at Common Law, it is conclusive upon the parties and
upon the Court ; and this, whether the verdict were rendered
upon a feigned issue sent out of Chancery to a Court of Com-
mon Law; or upon an issue framed upon a bill in Equity in
a Court having jurisdiction both in Equity and at Common
Law ; or in a civil suit at Common Law.
§ 264. In several of the individual States^ the right of trial
by Jury is secured, either in their constitutions or statutes, in
express terms. Thus, in the constitution of Maine, it is pro-
vided, that << In all civil suits, and in all controversies con-
cerning property, the parties shall have a right to a trial by
Jury, except in cases where it has heretofore been otherwise
practised." ^ A similar provision, in nearly the same words,
is found in the constitutions of New Hampshire and Massa-
^ Const. U. S. Amendments, Art. 7.
* Maine, Const Art 1, $ 20. (Adopted in 1820.)
PART YL] PRELDimART OBSERVATIONS. 239
chusetts ; ^ and this has been construed to give the right to
a trial of all material facts by the Jury, even in cases in
Equity.^ In the constitution of Vermont, it is declared, that
1 New Hampshire, Const. (1 792,) Part 1, Art. 20 ; Massachusetts, Const.
(1780,) Part 1, Art 15. In the constitution of Massachusetts there is an
exception of ** cases on the high seas, and such as relate to mariners' wag^s,"
•hould " the legislature hereafter find it necessary to alter it."
s Such is understood to be the opinion of the learned Judges, in the c^ise of
the Charles River Bridge, 7 Pick. 344, 368, 369, though a formal adjudication
of the point was waived, as unnecessary in that cause. Their language was
as follows : — ** Tlie article relied on is in no ambiguous language ; nothing
oould more explicitly declare the intention of the people, that, with the excep-
tions therein contained, the right to trial by Jury should never be invaded.
Now the case presented by Uiis bill is a controversy concerning property,
and it is also a suit between parties ; so that, unless it is a case in which, at
tl^e time of the adoption of the constitution, a different mode of trial could
be said to have been practised, it is most clearly included in the article.
But we wish not to decide this question now, believing it not to be neces-
lary, and that farther time might enable us to show that the case comes
within the practice. We find that the Colonial Legislature, in the year 1685,
vested in the County Courts as ample jurisdiction in matters of equity, as
exists in the Courts of Chancery in £ngland. That statute continued in forcd
until the grant of the provincial charter in 1691, by which the colonial sta-
tute was probably comddered to be repealed. After the charter, in 1692, the
whole chancery power was vested in the governor and eight of the council,
with a power to delegate it to a chancellor to be appointed by the governor.
The next year the legislature, declaring that this mode of administering the
power was found in practice to be inconvenient, repealed the law, and trans-
ferred the power to three conrniissioners ; and, in the succeeding year, this
tribunal was superseded, and a high Court of Chancery was established.
We have it from tradition, and I have seen it somewhere in history, that
these several acts became null and void by reason of the negative of the
king, which was exercised according to the charter, within three years after
their enactment; they were, however, in force, according to the provi-
sions of the charter, until the veto of the king was made known to the con-
•tituted authorities here. Now, whether the framers of the constitution, and
the people, had reference to those former chancery tribunals, when they
adopted the exception to the general provision in the fifteenth article, may
admit of question ; we are inclined to think, however, that the word * here-
tofore,' in the exception, could hardly be applicable to a practice which had
ceased to exist nearly a century before the constitution was adopted. In
regard to probate cases, and suits for redemption of mortgages, the prac-
tice of trying facts by the Court instead of the Jury, had continued down to
340 LAW OF BVIDBNCB. [PART VI.
^ when an issue in fact, proper for the cognizance of a Jury,
is joined in a Court of Law, the parties have a right to a
trial by Jury, which ought to be held sacred." ^ Whether
this provision has ever been adjudged to extend to proceed-
ings in Equity, subsequent to. the creation of a Court of
Chancery in that State, we are not informed. In the
constitution of Virginia, the language is more general ; it
being declared, that '' in controversies respecting property,
and suits between man and man, the ancient trial by
Jury of twelve .men is preferable to any other, and ought to
be held sacred." ^ In that of California, it is provided, that
<< the right of Irial by Jury shall be secured to all, and remain
inviolate forever ; but a Jury trial may be waived by the par-
ties, in all civil cases, in the manner to be prescribed by law." '
By the constitution of New York, it is to remain inviolate
forever, " in all cases in which it has been heretofore used ; "
the adoption of the constitution. But we saj again, that we do not wish to
decide this question now, any further than to declare, that a reasonable con-
struction of the fifteenth article does not reqidre that a suit in chancery shall
be tried just as a suit at common law would be, and that there is no neces-
sity that the whole case shall be put to the Jury. The most that can be
made of the article is, that all controverted fiicts deemed essential to the
fiur and full trial of the case, shall be passed upon by the Jury, if the parties,
or either of them, require it And whether the facts proposed to be so tried
are essential or not, must of necessity be determined by the Court There
may be many &cts stated in a bill and denied in aa answer, and also &ct8
alleged in the answer, which are wholly immaterial to the merits of the case,
and such facts the Court may refuse to put to the Jury ; just as in an action
at common law, if 'a party offers to prove facts which are irrelevant, the
Court may reject the proof; and as immaterial issues, even after yerdict,
may be rejected as nugatory. The right of the party to go to the Juiy is
preserved, if he is allowed that course in regard to all such facts as have a
bearing upon the issue for trial/' In New Hampshire the question, whether
the defendant, in a bill in equity, has a constitutional right to a trial by Juiy,
of the material facts in issue, was a point directiy in judgment, and was de-
cided in the affirmative. Marston v. Brackett, 9 N. Hamp. 336, 849. And
see K. Hamp. Bev. St 1842, ch. 171, ^ 8.
1 Vermont, Const (1798,) ch. 1, Art. 12.
9 Virginia, Const (1796, 1861,) Bill of Bights, $ 11.
8 California, Const (1849) Art. 1, ^ 8, Stat 1850, ch. 142, ( 136, 160.
PART VI.] PRELIMINARY OBSERVATIONS. 241
unless waived in civil cases by the parties.^ But by force of
the subsequent provisions of the Code of Procedure, abolish*
ing the distinction between proceedings in Equity and at
Law, it is conceived that the facts, in all cases, may be tried
by Jury, if demanded.^ Undoubtedly they may be in Louis-
iana, where this right is granted generally, in all cases, if
required by either party ; ^ and probably, also, in those other
States where the sole remedy is by petition and answer, no
distinction existing betweey emedies in Equity and at Law;
as is the case in CaliforniaSand Georgia, and in the other
States before mentioned. In Delaware, it is required by the
constitution, that " trial by Jury shall be as heretofore ; " but
it seems to be extended, by statute, to all cases.^ In the
States of Rhode Island, Connecticut, New Jersey, Florida,
Mississippi, Tennessee, Kentucky, Ohio, Alabama, Missouri,
Arkansas, Texas, and Iowa, the constitutional provision is
simply, that " the right of trial by Jury shall remain invio-
late ; " the words being in each constitution nearly the same,
and without qualification.^ The same provision exists in the
constitution of Indiana, where it is expressly extended to all
1 New York, Const (1846,) Art 1, ^ 2.
a N. r. Code of Procedure, ^ 62, 208, 221, 225, [252, 266, 270] ; Lyon
r. Ayres, 1 Code Rep. N. S. 257.
3 Louisiana, Code of Practice, ^ 494, 495; Texas, Const (1845,) Art 4,
§ 16, 18, 19; Id. Art. 1, ^ 12.
4 Delaware, Const (1881,) Art 1, ^ 4. In the constitution of this State,
in 1776, it was declared, '* That trial, by Jury, of facts, where they arise, is
one of the greatest securities of the lives, liberties, and estates 'of the people."
Declaration of Bights, Art 13. And accordingly, in the Revised Statutes
of 1852, ch. 95, § 1, it is enacted, that " where matters of fact, proper to be
tried by Jury, shall arise in any cause depending in Chancery, the Chan-
cellor shail order such facts to trial by issues at the bar of the Superior
Court"
& Rhode Island, Const (1842,) Art. 1, ^ 15 ; Connecticut, Const (1818,)
Art 1, ^ 21 ; New Jersey, Const (1844^ Art 1,^7; Florida, Const (1838,)
Art. 1,^6; Mississippi, Const (1817, 1832,) Art. 1, ^ 28 ; Tennessee, Const
(1796, 1835,) Art 1, § 6 ; Kentucky, Const (1799,) Art 13, ^ 8 ; Ohio, Const.
(1802, 1851,) Art. 1, ^ 5; Alabama, Const (1819,) Art. 1, ^ 28; Missouri,
Const (1821,) Art 11, ^ ; Arkansas, Const. (1836,) Art. 2, ^ 6; Texas,
Const (1845,) Art 1, M^ i ^<^^y ^o^^t (1844,) Art 2, ^ 9.
VOL, III. 21
"\
342 LAW OF BVIDENOB. [PART VI.
civil cases ; in those of Maryland, Illinois, and Wisconsin,
where it is applied only to " all cases at law," or to " civil
proceedings in Courts of law ; " and in those of South Caro-
lina and Georgia, where it is qualified by the addition of the
words " as heretofore used in this State." It is qualified in
a similar manner in the constitution of Pennsylvania.^ In
the constitution of Michigan it is provided, that " the right
of trial by Jury shall remain, but shall be deemed to be
waived in all civil cases, unless demanded by one of the par-
ties, in such manner as shall be prescribed by law;" — a
provision apparently copied from that in New York, with a
studious omission of the words ^' in all cases in which it has
been heretofore used " ^
§ 265. In other States, as well as in some of those above
mentioned, the right of trial by Jury, in all civil cases,
without exception, is further secured by statute. Thus, in
the Code of Iowa, it is enacted, that issues of fact shall be
tried by the Court, tmless one of the parties require a Jury.^
And in North Carolina, it is made " the duty of the Court,
to direct the trial of such issues as to the Court may appear
necessary, according to the rules and practice in Chancery, in
such cases." ^ In Georgia, the Superior and Inferior Courts,
which are Courts of general jurisdiction in civil cases, both
at law and in equity, have " full power and authority " to
hear and determine all causes in their respective tribunals by
Jury ; ^ and the course of such trials, in cases in equity, is
provided for by the general rules in Ekjuity." ^
1 Indiana, Const (1816, 1851,) Art. 1, $ 20; Maryland, Const (1851,)
Art 10, ^ 4 ; Illinois, Const (1818, 1847,) Art 13, ^ 6; Wisconsin, Const.
(1848,) Artl, ^5; South Carolina, Const (1790,) Art 9, ^6; Georgia,
Const (1798, 1839,) Art 4, $ 5 ; Pennsylvania, Const (1888,) Art 9, § 6.
9 Michigan, Const. (1836, 1850,) Art. 6, ^ 27.
3 lotoa. Code of 1851, § 1772.
* North Carolina, Rev. St 1886, Vol. 1, ch. 32, § 4.
5 Hotchk. Dig. p. 529, ^ 149.
6 Idem. p. 953, 954, Reg. 1, 6.
PART VI.] PRELIMINARY OBSERVATIONS. 243
§ 266. In view of these express declarations respecting the
great value of the trial by Jury, and of the sacredness of the
right, and the care taken for its preservation, no one will deny
that it is a mode of trial highly favored, and intimately con-
nected with the general welfare. And therefore it may de-
serve to be considered, whether, in those States where Courts
of Equity are " authorized and empowered," or " permitted,"
to direct issues to the Jury for the trial of material facts, it '
be not their duty so to do, and whether the parties may not
demand it of right ; unless, perhaps, in those cases where the
statute expressly leaves it in the discretion of the Court ; it
being the well known rule of law, that words of permission,
in a statute, if tending to promote the public benefit, or in-
volving the rights of third persons, are always held to be com-
pulsory.^ Such permission and authority to direct a trial by
Jury, << if there be an issue as to matter of fact, which shall
render the intervention of a Jury necessary," is found in the
statute of Arkansas, and is copied, in nearly the same words,
in that of Wisconsin.^ In Alabama, the Courts, sitting in
Chancery, " may direct an issue of fact to be tried whenever
they judge it necessary ." ^ In Virginia, "any Court, wherein
a chancery case is pending, may direct an issue to be tried in
such Court, or in any circuit, county, or corporation Court." *
The precise construction of these provisions, and whether
^ So held in Rex v. Mayor, &c., of Hastings, 1 D. & R 148 ; where the
words were ** may have power to have and hold a Court of Record/' &c.
So, where the churchwardens and overseers sh<dl have power and authority
to make a rate to reimburse the constables. Rex v. Barlow, 2 Salk. 609.
So, where the Chancellor may grant a commission of bankruptcy. Black-
well's case, 1 Vem. 152. So, where the trustees of a public charity, under
the will of the founder, may remove a pensioner, for certain causes. Att'y-
Cren. «. Lock. 3 Atk. 164. And see Newburg Tump. Co. v. Miller, 5 Johns.
Ch. 113; Bex v. Com'rs of Flockwold, 2 Chitty, R. 251 ; Dwarris on Sta-
tutes, 712 ; Rex v. Derby, Skin. 370; 1 Kent, Comm. [467] 517 ; Simonton,
exparte, 9 Port 390; Malcolm t;. Rogers, 5 Co wen, 188; 1 Pet. 64.
9 Arkansas^ Rev. Stat. 1837, cL 23, ^ 64 ; Wisconsin, Rev. Stat 1849, ch.
84, $ 81.
3 Toulm. Dig. 487 ; English's Dig. ch. 28, ^ 62.
4 Virginia^ Rev. Code, 1849, ch. 177, ^ 4, and note.
244 LAW OF EVIDENCE. ' [PART VI.
they would justify the Court in refusing to grant a trial pf
material facts by Jury, when claimed by the parties, yet re-
mains to be settled. Probably few Judges, at the present
day, in any State where the law is not perfectly clear against
it, would venture to deny such an application, in a case pro-
per for a Jury, nor to disregard the verdict, if fairly rendered
upon a legal trial. And in proportion to the duty of direct-
ing an issue to the Jury, is the obligation on the Judge to be
governed by their verdict.
§ 267. Thus it appears, that the regular course of Chan-
cery proceedings, as heretofore used in England, is not strictly
followed in any State of the Union. In some States, the
proceedings in Chancery are by bill and answer, the common-
law remedy being by writ, as before; in others, there is
but one, and that a brief form of remedy, pursued alike in all
cases. In some, the parties may examine each other as wit-
nesses ; in others, this is not permitted. In some, the wit-
nesses may be examined in Court, vivd voce^ as at law ; in
others, the testimony is always taken in writing, either in open
Court, by the Clerk or the Judge, or in depositions, after the
former method. In the latter case, however, there is this far-
ther diversity of practice, that, in some States, the parties may
examine and cross-examine the witness, ore tentiSy before
the magistrate or commissioner; in others, they may only pro-
pound questions in writing, through the commissioner; in
others, they may only be present during the examination, and
take notes of the testimony, but without speaking ; while in
others, the parties are still excluded from the examination.
In some of the States, also, it is required that all matters of
fact, in all cases, shall be tried by the Jury ; in others, it is at
the option of the parties ; in others, it is apparently left in the
discretion of the Court ; but with plain intimations that it
ought not to be refused, unless for good cause. Other changes
in the course of Chancery proceedings might be mentioned ;
but these will suffice to show, how difficult it is, if not impos-
sible, to prepare a complete system of the law of evidence in
Equity, adapted alike to all the States in the Union. An
approximation to this result is all that the author can hope
to attain.
PART VI.) NOTE. 246
NOTE.
DtmiNG the composition of this Tolume, the Practice and Course of Pro-
ceeding in the High Court of Chancery in England, have been amended
and materially reformed, by Stat 15 & 16 Yict. c. 86, (July 1, 1852,) and
by the Orders made by the Lord Chancellor, pursuant to the provisions of
that statute ; some account of the leading features of which will not be unac-
ceptable to the profession in the United States, and is therefore subjoined.
The practice of engrossing bills and claims on parchment, and of issuing a
subpoena to appear and answer, is abolished ; instead of which the plaintiff
files a printed bill or claim, and serves a printed copy on the defendant.
Stat. 15 & 16 Vict. c. 86, ^1-4. Of these printed bills or claims, the plain-
tiff is required to deliver to the defendant or his solicitor such a number as
he may have occasion for, not exceeding ten, at a halfpenny each folio. Id.
( 7. Orders, Aug. 7, 1852. Ord. 5, 6.
The copy of the bill or claim filed is to be interleaved ; and where, by the
former practice, an amendment may be made, without a new engrossment^ it
may now be made by written alterations on the printed bill or claim, or on
the interleaves ; an amended copy being served as before. Stat. sup. ^ 8.
Ord. 7, 9, 10.
Every bill must contain, as concisely as may be, a narrative of the mate^
rial facts and circumstances on which the plaintiff relies ; divided into para-
graphs and numbered consecutively ; each paragraph containing, as nearly as
may be, a distinct statement or allegation ; and must pray for specific and
general relief; but must not contain interrogatories to the defendant Stat,
sup. ^ 10. A brief form for a bill, pursuant to this section, is appended to
the new Orders. Ord. 14.
If the plaintiff requires an answer from the defendant, he is to file inter-
rogatories in the Becord Office, for the examination of the defendant,
(serving a copy on him or his solicitor,) within a time, limited in the Orders.
Stat sup. ^ 12, Ord. 15 - 20.
The defendant's answer to the bill may contain not only his answers to
the plaintiff's interrogatories, filed as above, but any other statements he may
be advised to set forth by way of defence ; to be divided into paragraphs
and numbered, as is required in the bill. Stat sup. ( 14. A brief form of
such answer is also appended to the orders. Ord. 21.
The practice of excepting to bills, answers, and other proceedings, for im-
pertinence, is abolished; but the party may be punished in costs. Stat. sup.
^17.
The Court may order the defendant to produce, under oath, such docu-
ments in his possession or power relating to matters in question in the suit, as
21 •
246 LAW OF EVIDENCE. [PABT VI.
the Court shall think right ; and may deal T^ith them, when produced, as
may appear just Stat. sup. ^18.
The defendant, after answering the bill or claim, if an answer is required,
may either file a cross-bill of discovery, or may examine the plaintiff upon
interrogatories, filed in the Record Office, and having a concise statement
prefixed to them of the subjects on which a discovery b sought; which, being
duly served, the plaintiff is bound to answer in like manner as if the interro-
gatories were contained in a bill of discovery. And the practice of the
Court in regard to excepting to answers for insufficiency and for scandal, is
to apply to the answers to such interrogatories ; the Court, in determining
their materiality or relevancy, to have regard to the bill, and the defendant's
answer, if any, to the bill or to interrogatories. Stat sup. ^19.
After answer, if an answer is required, or otherwise at any time, the
Court, upon application of the defendant, may order the production of docu-
ments by the plaintiff, in like manner as above stated in ^ 18. Stat sup.
^ 20.
If the defendant shall not have been required to answer, and shall not have
answered the plaintiff's bill, he shall be considered to have traversed the
case made by the bill. Stat sup. ^ 26. But a replication is still to be filed.
Ord. 28.
The old mode of examining witnesses is no longer to be observed, except
in cases where it may be specially ordered by the Court, as varied by the
new general Orders, or by special order in any particular case. Id. ^ 28.
The plaintiff, within seven days afler a suit commenced by bill is at issue,
may give notice to the defendant that he desires that the evidence in the
cause be taken orally, or upon affidavit, as the case may be ; and if upon
affidavit, and the defendant shall not, within fourteen days more, give notice
to the plaintiff that he desires the evidence to be oral, both parties may
verify their cases by affidavit Id. ^ 29, Ord. 31.
When a party desires that the evidence should be adduced orally, and
gives notice as above, it shall be so taken ; provided, that where the desire
proceeds from a party not having sufficient interest in the matters in ques-
tion, the Court may make such order as shall be just. Stat sup. ^ 30.
Witnesses to be examined orally, as above, are to be examined by or be-
fore one of the examiners of the Court, or by one specially appointed ; who
is to be furnished with a copy of the bill and answer. The examination is
to be in presence of the parties, their counsel, solicitors or agents ; the exa-
mination, cross-examination, and re-examination to be conducted as in the
Courts of Common Law in regard to witnesses about to go abroad, and not
to be present at the trial. The depositions are to be taken down by the
examiner, in the form of narrative, and not ordinarily by question and
answer; and to be signed by the witness, or by the examiner, if he refuses.
But the examiner may put down any particular question and answer, if he
sees special cause ; and may state any special matter to the Court. And if
any question is objected to, he is to note the objection, and state his opinion
thereon to the counsel or party, and refer to such statement, on the face ot
the deposition ; but he has no power to decide on the materiality or relc-
PABTVI.] NOTE. 247
yancy of any question ; bat that subject is to be dealt with in costs, by the
Court Id. ^ 31, 82.
Though evidence be elected to be taken orally, yet affidavits by particular
witnesses, or to particular facts, may be used by consent, or by leave of the
Court, granted on notice. Id. ^ 86.
Any cestui que trust may have a decree for the execution of the trusts,
.without serving any other cestui que trust Any executor, administrator, or
trustee may have a decree against any one legatee, next of kin, or cestui que
trust. And trustees, in all suits concerning the trust property, shall repre-
sent the persons beneficially interested therein. But in all such cases,
except the last, the persons heretofore made parties are to be served with
notice of the decree, with liberty to attend the subsequent proceedings under
it, and may apply to add to it ; and the Court has the power of requiring
parties to be called in. Id. ^42. The former practice of setting down a
cause merely on the objection of the want of parties, is abolished. Id. ^ 43.
If a person interested in the suit dies, and has no legal personal represent-
ative, the Court may proceed without one, or may appoint some person to
represent the estate in that suit ; and the estate shall be bound thereby. Id.
^ 44.
No suit is to be dismissed for misjoinder of parties ; but the decree is to be
modified, and amendments to be directed, according to the special circum-
stances of the case. Id. ^ 49.
No suit is to be open to the objection, that it seeks only a declaratory
order or decree ; but the Court may make binding declarations of right
without granting consequential relief. Id. ^ 50.
The Court may also adjudicate on questions between some of the parties
interested in the property in question, without making the other persons, in-
terested in the property, parties to the suit ; or may refuse to do so, at its
discretion. Id. ^ 51.
Upon a suit becoming abated by death, marriage, or otherwise, or defect-
ive by any change of interest or liability, a bill of revivor or supplemental
bill is no longer necessary ; but the proper parties may be called in by an
order, duly served, operating to the same efiect as though a bill of revivor
or a supplemental bill were filed. Id. ^ 52.
New facts occurring since the filing of a bill, may be introduced by way
of amendment, without a supplemental bill. Id. ^53. And if the cause is
not in such a state as to allow of an amendment being made to the bill, the
plaintiff may file in tiie Clerk's Office a statement of the new facts he desires
to put in issue ; to which the same proceedings shall be had as though the
statement were embodied in a supplemental bill. Ord. 44.
The Court may, by special orders, direct the mode in which any account
shall be taken or vouched ; and may, in its discretion, direct that the books
in which the accounts, required to be taken in any particular case, have been
kept, shall be taken as primd facie evidence of the truth of matters therein
contained, subject to objections from the parties interested. Stat. sup. ^ 54.
Real estate which is Uie subject of suit, may, if it appear expedient to the
248 LAW OF BVIDENCB. [PABT VI.
Conrt, for the purposes of the suit, be sold under an interlocutoij order of
the Court, at any lime afler the institution of the suit ; in as valid a manner
as if sold under a decree or a decretal order on the hearing of the cause.
Id. ^ 55.
The practice of directing a case to be stated for the opinion of any Conrt
of Common Law, is abolished ; and the Court of Chancery is empowered to
determine all questions of law, which it may deem necessary to decide, pre*
yious to the decision of the equitable question at issue. Id. ^ € 1. And
where, under the former practice, the Court of Chancery declined to grant
equitable relief until the parties had established their legal title by a suit at
law, it b now empowered to determine the legal title, without requiring the
parties to proceed at law. Id. ^ 63.
The Lord Chancellor, with the assistance of other Judges named, is
required to make rules and orders from time to time, to carry this statute
into effect ; to be forthwith submitted to Parliament, and if not disapproved
by Parliament within thirty-six days thereafter, then to remain of force as
General Orders of the Court Id. \ 68, 64.
The forms of the bill, interrogatories and answers, set forth by the Lord
Chancellor, pursuant to the above statute, are as follows : —
Form of Bill,
In Chancery.
John Lee Plaintiff;
James Styles \
and . > Defendants.
Henry Jones j
BUI of Complaint
To the lUght Honorable Edward Burtenshaw, Baron St Leonards, of
Slaugham, in the county of Sussex, Lord High Chancellor of Great
Britain,
Humbly complaining, showeth nnto his lordship, John Lee, of Bedford
Square, in the county of Middlesex, Esq., the above named plaintiff, as fol-
lows:—
1. The defendant James Styles, bdng seised in fee simple of a fiirm called
Blackacre, in the parish of A, in the county of B, with the appurtenances,
did, by an indenture dated the 1 st of May, one thousand eight hundred and fifty,
and made between the defendant James Styles of the one part, and the plain-
tiff of the other part, grant and convey the said fann with the appurtenances
nnto, and to the use of, the plaintiff, his heirs and assigns, subject to a pro-
viso for redemption thereof, in case the defendant James St)*les, his heirs,
executors, administrators or assigns, should on the 1st of May, one thousand
eight hundred and fifty-one, pay to the plaintiff, his executors, administra-
tors or assigns, the sum of five thousand pounds, with interest thereon, at
the rate of five pounds per centum per annum, as by the said indenture will
appear.
PART VI.] NOTB. 249
2. The ^rhole of the said sum of five thousand pounds, together with in-
terest thereon at the rate aforesaid, is now due to the plaintiff.
3. The defendant, Henry Jones, claims to have some charge upon the
farm and premises comprised in the said indenture of mortgage of the 1st of
May, one thousand eight hundred and fifty, which charge is subsequent to
the plaintiff's said mortgage.
4. The plaintiff has frequently applied to the defendants, James Styles
and Henry Jones, and required them either to pay the said debt, or else to
release the equity of redemption of the premises, but they have refused so
to do.
5. The defendants, James Styles and Henry Jones, pretend that there are
some other mortgages, charges or encumbrances affecting the premises, but
they refuse to discover the particulars thereof.
6. There are divers valuable oak, ehn, and other timber and timber-like
trees growing and standing on the farm and lands comprised in the said in-
denture of mortgage of the 1st of May, one thousand eight hundred and fifly,
which trees and timber are a material part of the plaintiff's said security ;
and if the same or any of them were felled and taken away the said mort-
gaged premises would be an insufficient security to the plaintiff for the money
due thereon.
7. The defendant James Styles, who is in possession of the said farm, has
marked, for felling, a large quantity of the said oak and elm trees and other
timber, and he has, by handbills, published on the second December instant,
announced the same for sale, and he threatens and intends forthwith to cut
down and dispose of a considerable quantity of said trees and timber on the
said farm.
Prayer,
The plaintiff prays as follows : —
1 . That an account may be taken of what is due for principal and inter-
est on the said mortgage.
3. That the defendants, James Styles and Henry Jones, may be decreed
to pay to the plaintiff the amount which shall be so found due, to-
gether with his costs of this suit, by a short day to be appointed for
that purpose, or, in default thereof, that the defendants James Styles
and Henry Jones, and all persons claiming under them, may be abso-
lutely foreclosed of all right and equity of redemption in or to the said
mortgaged premises.
3. That the defendant James Styles may be restrained by the injunction
of this honorable Court from felling, cutting, or disposing of any of
the timber or timber-like trees now standing or growing in or upon
the said farm and premises comprised in the said indenture of mort-
gage, or any part thereof.
4. That the plaintiff may have such further or other relief as the nature
of the case may require.
250 LAW OF BVIDBNCB. [PART VI.
«
Names of defendants.
The defendants to this bill of complaint are,
James Styles,
Henry Jones.
Y. Y.,
(name of counsel)
Note. — This bill is filed by Messrs. A. B. and C. D., of Lincoln's Inn, in
the county of Middlesex, solicitors for the above-named plaintiC
Form of Interrogatories.
In Chancery.
John Lee Plaintiff;
James Styles \
and > Defendants.
Henry Jones j
Interrrogatories for the examination of the aboTe-named defendants in
answer to the plaintiff's bill of complaint.
1. Does not the defendant Henry Jones claim to have some charge upon
the farm and premises comprised in the indenture of mortgage of the 1st of
May, one thousand eight hundred and fifty, in the plaintifi^s bill mentioned ?
2. What are the particulars of such charge, if any, the date, nature, and
short effect of the security, and what is due thereon ?
8. Are there or is there any other mortgages or mortgage, charges or
charge, encumbrances or encumbrance, in any and what manner affecting
the aforesaid premises, or any part thereof?
4. Set forth the particulars of such mortgages or mortgage, charges or
charge, encumbrances or encumbrance ; the date, nature and short effect of
the security ; what is now due thereon ; and who is or are entitled thereto
respectively ; and when and by whom, and in what manner, every such
mortgage, charge or encumbrance was created.
The defendant James Styles is required to answer all these interrogatories.
The defendant Henry Jones is required to answer the interrogatories
numbered 1 and 2.
Y. Y.,
. (name of counsel.)
Form of Answer.
In Chancery.
John Lee Plaintiff;
James Styles \
and ' > Defendants.
Henry Jones )
The answer of James St}'les, one of the above-named defendants to the
bill of complaint of the above-named plaintiff.
In answer to the said bill, I, James Styles, say as follows : —
PART VI.] NOTE. ' 251
1. I betieve that the defendant, Henry Jones, does clsdm to have a charge
upon the farm and premises comprised in the indenture of mortgage of the
1st of May, one thousand eight hundred and fifty, in the plaintiff's bill men-
tioned.
2. Such chaxge was created by an indenture dated the Ist of November,
one thousand eight hundred and fifty, made between myself of the one part,
and the said defendant Henry Jones of the other part, whereby I granted
and conveyed the said farm and premises, subject to the mortgage made by
the said indenture of the 1st of May, one thousand eight hundred and fifty,
unto the defendant Henry Jones, for securing the sum of two thousand
pounds and interest at the rate of five pounds per centum per annum, and
the amount due thereon is the said sum of two thousand pounds, with interest
thereon, from the date of such mortgage.
3. To the best of my knowledge, remembrance, and belief, there is not
any other mortgage, charge or encumbrance affecting the aforesaid premises.
M.N.
(name of counsel.)
Proceedings by claim, instead of by bill, were regulated by the Orders of
April 22, 1850 ; which permitted the fbllowing parties to pursue this brief
method of relief : —
1. A creditor, seeking payment out of the personal estate of his deceased
debtor.
2. A legatee, seeking payment of his legacy out of the personal estate of
the testator.
3. A residuary legatee, seeking an account of the residue, and payment
or appropriation of his share.
4. Any person entitled to a distributive share of an intestate's personal
estate, and seeking an account and payment
5. An executor or administrator, seeking to have the personal estate ad-
ministered under the directions of the Court.
6. A legal or equitable mortgagee, or person entitled to a lien as security
for a debt, seeking foreclosure or sale, or otherwise to enforce his security.
7. A person entitled and seeking to redeem such mortgage or lien.
8. A person entitled to and seeking the specific performance of an agree-
ment for the sale or purchase of any property.
9. A person entitled to and seeking an account of the transactions of a
partnership which is dissolved or has expired.
10. A person entitled to an equitable estate or interest, seeking to use the
name of his trustee in a suit at law, for his own benefit
11. A person entitled to have a new trustee appointed, in a case where
the instrument creating the trust contains no power for that purpose, or the
power cannot be exercised, and seeking to have a new trustee appointed.
In other cases, parties may prosecute by claim, on special leave of the
Court, upon the ex parte application of the person seeking equitable relie£
252 LAW OP EVIDENOB. [PART TI-
These claims are subject to the General Orders and practice of the Court,
in the same manner as proceedings by bill, so far as the rules may apply.
Forms are set forth, in the schedules annexed to these Orders, for the
pursuit of these remedies by claim ; of which the following claim for specific
performance of an agreement, may serve as a specimen : —
In Chancery.
Between A. B., Plaintiff.
C. D., Defendant
The claim of A. B., of , the above-named plaintiff. The said A. B.
states, that by an agreement dated the day of , and signed by the
above-named defendant C. D., he the said C. D., contracted to buy of him
[^or " to sell to him "] certain freehold property [or " copyhold," " leasehold,"
or otiier property , as the case may be]y therein described or referred to, for
the sum of pounds ; and that he has made or caused to be made an ap-
plication to the said C. D. specifically to perform the said agreement on his
part, but that he has not done so, and the said A. B. therefore claims to be
cntiUed to a specific peiformance of the said agreement, and to have his
costs of this suit ; and for that purpose to have all proper directions given.
And he hereby offers specifically to perform the same on his part.
PABT YI.] SOUBCES, MEANS AND INSTBUHENTS OF EYIDENCB. 253
CHAPTER II.
OF THE SOURCES, MEANS AND INSTRUMENTS OF EVIDENCE.
§ 268. The sources of evidence in Equity are principally
four ; namely, first, the intelligence of the Court, or the notice
which it judidcMy takes of certain things ; and the thirds
which it presumes; secondly, the admissions of the parties^
contained in their pleadings and agreements ; thirdly, docth
mentSy and, fourthly, the testimony of witnesses.
1. THINGS JUDICIALLY TAKEN NOTICE OF, AND PRESUMED.
§ 269. The jfirst of these, namely, things judicially taken
notice of, has already been briefly treated in a preceding
volume.^ The principle on which such notice is taken, is,
the universal notoriety of the facts in question. These are
sometimes distributed into two classes, composed of those
things of which the Court sua motu takes notice, and those
of which it does not sua motu take notice, but expects its
attention to be directed to them by the parties ; in which lat-
ter class are enumerated those local and personal statutes,
in which it is enacted, that they shall be judicially taken
notice of without being specially pleaded ; journals of the
two houses of the legislature ; public proclamations ; public
records, &c. But this distinction is of little or no practical
importance ; since, in the progress of every trial, the attention
of the Court is always called alike to all matters within its
cognizance, which the parties or their counsel deem material
1 Ante, YoL 1, ( 2, per tot.
VOL, III. 22
\
254 LkW OF EYIBBNCB. [PABT TI.
to their respective interests, to whichsoever of those two classes
they may seem to belong; and whenever a document or
writing is required to aid the recollection of the Court, it is
generally provided beforehand for the occasion. It is, for ex-
ample, wholly immaterial, in the final result, whether the
facts of public and general history and their dates, are recog-
nized by the Court, sudpte sponte^ the books and chronicles
or almanacs being used merely to aid the memory ; or
whether they will remain unnoticed until suggested by the
parties and verified by the books ; or whether the books
themselves are adduced by the parties and admitted by the
Court as instruments of evidence, in the nature of public
documents ; the process and the result being in each case the
same.^ Neither is it possible to distinguish d priori, be-
tween those subjects of science which are in fact of such
notoriety as entitles them to be judicially recognized, and
those which are not ; nor, between those things which ought
to be generally known, and those, the knowledge of which is
not of general obligation ; since each particular case must be
decided by the Judge, as it occurs, and he can have no other
standard than the measure of his own information or learn-
ing ; — a standard subject to variations as numerous as the
individuals by whom it is to be applied. This standard also
must be liable to constant changes with the advancement
and gradual diffusion of science; many things which for-
merly were occult, and to be proved by experts, as, for exam-
ple, many facts in chemistry, and the like, being now, in the
same places, matters of common learning in the public
schools. The same may, in some degree, be said of every
branch of physical science, of geographical knowledge, and
of the religion and customs of foreign nations. A different
application of the rule may also be requisite in different parts
of the same country or government, as, for example, Maine
and California, or England and Australia, or India.
§ 270. In regard to the means or instruments to which resort
1 Ante, Vol. 1, ^ 497.
PABT VI.] BOURCEB, MEANS AND IN8TRUHSNTS OF EYIDENGE. 255
is usucUly had by the Courts for the more accurate recollection
of matters of general notoriety, it im.y be observed, that the
preamble of a public statute will ordinarily be sufficient for
the knowledge of any general fact it recites, ^ any communi-
cation from the Secretary of State will suffice, as to the pre-
cise state of our relations with a foreign government;^ the
government Gazette, for the dates of public events, such as,
proclamations of war or peace, signature of treaties, terms of
capitulations, and the like ; ^ the diplomatic communications
of our ministers abroad, for the relations of foreign govern-
ments to each other,* and, generally, public documents, for
the public facts they contain.^
§ 271. In taking notice of the common and unwritten law
or customs of the country, resort is had to the reported judg-
ments of the Courts, and to the great Text-books, such as the
writings of Bracton, Lord Coke, Lord Hale, Sir Michael
Foster, Fitzherbert, and others. There is, however, a divers-
ity in the degrees of credit given to books of reports and to
the judgments themselves, arising from the character of the
reporter, and of the Court.® The judgments of Courts of
appellate and ultimate jurisdiction are regarded as .binding,
by those Courts whose decisions they are authorized to revise
and reverse. And Judges, sitting at nisiprius, will not over-
rule or disregard the decisions in banc of their own Courts.
But the decisions of other Courts of coordinate rank and
authority, and the decisions of the Courts of other States, are
not generally regarded as of binding force, or as conclusive
evidence of the Common Law ; but are read and respected
according to the estimation in which the tribunals are held.
A Doct. & St b. 2, ch. 55 ; 1 Inst 19, b.; Bex v, Sutton, 4 M. & S. 549.
9 Taylor v, Barclay, 3 Sim. 220. And see ante. Vol. 1, ^ 6, 490, 491.
3 Ante, Vol. 1, § 492.
4 Thelluson v. Gosling, 4 Esp. 266.
5 Ante, Vol. 1, H* 490, 491.
^ See, on the estimation of authorities, Bam on Legal Judgment, ch. 18,
per tot
256 LAW OP BVIDBNCB. . [PART VI.
§ 272. The subject of presumptions having been treated in
a previous volume,^ what is there stated needs no repetition
here. Wherever the entire case is heard and decided by the
Judge or Chancellor, without a Jury, all inferences which
Jurors might draw, and all things which they may lawfully
presume, will be drawn and presumed by the Court
2. ADMISSIOl^S.
§ 273. In the second place, as to admissions made by the
PARTIES. These are either in the bill, or in the answer, or in
some special agreement, made in the cause, for the purpose
of dispensing with other proof. And statements in the bill
may sometimes be used against the plaintiff, and at others,
in his favor.
§ 274. An ORIGINAL bill, praying relief, is so framed as to
set forth the rights of the plaintiff ; the manner in which he
is injured ; the person by whom it is done ; the material cir-
cumstances of the time, place, manner, and other incidents ;
and the particular relief he seeks from the Court.^ It con-
sists of several parts, the principal of which is termed the
premises, or stating part, and contains a full and accurate
narrative of the facts and circumstances of the plaintifPs case,
upon which the ultimate decree is founded. Ordinarily, the
bill is drawn by the solicitor, upon the general instructions
given by his client, and is signed by the solicitor only ; and
hence it has been regarded as the mere statement of counsel,
frequently fictitious, and hypothetically constructed, in order
to extract a more complete answer from the defendant. On
this ground it has been laid down as a rule, in England, that
" generally speaking, a bill in Chancery cannot be received
as evidence, in a Court of Law, to prove any facts either
alleged or denied in such biU ; " though the rule is admitted
I Ante, Vol. 1 , ch. 4,^14- 48.
« Story, Eq. PL ^ 23.
J
PABT YI.] SOUBCBS, MEANS AKD mBTRXJHENTS OF EYIDEKCE. 257
to be subject to some exceptions.^ But as this rule is avow-
edly foanded on the assumption, that the statements in the
bill are, in most cases at least, partially false, but permitted
for the sake of eliciting truth, or are made upon misinform-
ation, and to be afterv^^ards corrected by amendment, upon
better knowledge ; it is plain that the rule ought to be re-
stricted to cases falling within the principle on which it is
founded, namely, to allegations of facts not lying within the
peculiar knowledge of the counsel. But in England, since
the adoption of this rule, and in the United States for a
longer period, the use of fictions in pleading has been point-
edly reprobated, and much effort has been employed, both by
Courts and Legislatures, to obtain a simple statement of the
truth, in all legal proceedings ; and the success which has
crowned these endeavors has materially weakened the reason
of the rale, so far as it regards facts in the knowledge of
the party alone, and not of his counsel. But however this
may be, it is to be observed, that in some of the United
States, bills are usually signed by the party, as well as by
counsel; that some of the facts are ordinarily within the
peculiar knowledge of the counsel, and not of the party ; and
that, in certain cases, either the bill itself is sworn to, or it is
accompanied by an affidavit, stating the material facts. Such
is the case in some bills of discovery ; bills to obtain the
benefit of lost instruments, and some others. Now in all
1 See the answer of the Judges, in the Banbury peerage case, 3 Selw.
N. P. 744. Mr. Phillips, in the earlier editions of his work on Evidence, states
the rule as well settled, without qualification ; but in the latest edition, after
observing that the authorities are contradictory upon this subject, he only
remarks, that *Mt seems to be the more prevalent opinion" that a bill in
Chancery cannot be used at law, as the admission of the plaintiff. 2 Phil.
£v. 28. (9th ed.) Mr. Justice Buller held it admissible in all cases where
there had been proceedings upon the bill. Bull. N. P. 235. But in several
American cases it has been rejected, in trials at law, on the ground that
many of the facts stated were merely the suggestions of counsel. See Owens
V. Dawson, 1 Watts, 149 ; Bees v. Lawless, 4 Litt. 218 ; Belden v. Davis,
2 Hall, N. Y. Bep. 444. If the bill has been sworn to, it is conceded to be
admissible. See Bankin v. Maxwell, 2 A. K. Marsh. 488; Chipman v.
Thompson, Walk. Ch. B. 405.
22*
258 LAW OP EVIDBNCB. [PART VI.
these and the like cases, it is not easy to perceive why the
statements in the bill, considerately made, of facts known to
the person making them, should not be received elsewhere,
against the party, as evidence of his admissions of the facts
so stated.^ "Where the statement has been sworn to, it con-
1 In Ld. Trimlestown v. Kemmis, 9 CI. & Fin. 749, 777, 779, 780, which
was a writ of error on a judgment in ejectment, the defendant put in evi-
dence a deed of compromise between the widow of the plaintiff's ancestor
and the lessor of the plaintiff, showing their dealings with the property in
question ; and then offered in evidence a bill in Chancery, filed by the
administrator of the same ancestor against the same lessor, as his agent, and
the decree thereon, to explain one of the items of account, in the schedule
referred to in that deed of compromise ; and for this purpose the bill was
held admissible. The plaintiff also offered in evidence, by way of reply, a
bill in Chancery filed against one of his ancestors, respecting the same pre-
mises, and the answer of his ancestor, stating what he had heard his grand-
mother, who was a jointress in possession of part of the lands, say, in regard
to her refusing to join her son in any alienation of the estate. This evidence
was held rightly rejected, as being hearsay; though it was conceded that
had it been the declaration of a party in possession of the estate and made
against his own interest, it might have been received.
In the subsequent case of Boileau v. Rutlin, 2 £xch. R. 665, (1848), which
was assumpsit for use and occupation, the defence was, that the defendant had
occupied under an agreement to purchase. Though he had given notice to
the plaintiff to produce this agreement, he did not call for it, but in proof of
it he put in a bill and other proceedings in a suit in Chancery brought by
the plaintiff against him, for not performing that agreement, and stating its
terms. This was objected to, but was admitted by Ld. Denman, as some
evidence of the contract, reserving the point On a motion for a new trial
for this cause, afler a full consideration of the subject, the evidence was held
inadmissible, upon grounds stated by Parke, B., as follows : —
" It is certain that a bill in Chancery is no evidence against the party in
whose name it is filed, unless his privity to it is shewn. That was decided
in WooUett p. Roberts, (a) tliough no such decision was wanted. The pro-
ceedings on such a bill, afler answer, tend to diminish the presumption that
it might have been filed by a stranger, and appear to have been held suffi-
cient to establish the privity of the party in whose name it was filed. Snow
d. Lord Crawley t?. Phillips (6). When that privity is established, there is
no doubt that the bill is admis^ble to show the fact that such a suit was insti-
tuted, and what the subject of it was ; but the question is, whether the state-
(a) 1 Ch. Ca. 64. (ft) 1 Sid. 220.
PART VI.] SOURCES, MEAITS AND INSTRUMENTS OP EVIDENCE. 259
stitutes a clear exception to the rule ; and in either case it is
ordinarily not conclusive, but open to explanation.^
ments in it are any evidence against the plaintiff of their truth, on the foot-
ing of an admission. Upon this point the authorities arc conflicting. In the
case referred to in Siderfin, it would seem that the bill, which was filed by
the defendant to be relieved from a bond as simoniacal, was used against
him to prove that he was simoniacally presented ; but it does not very dis-
tinctly so appear. In BuUer's Kisi Frius (a) a bill in Chancery is said to be
* evidence against the complainant, for the allegations of every man's bill
shall be supposed to be true ; and therefore, it amounts to a confession and
admission of the truth of any fact ; and if the counsel have mingled in it any
fact that is not true, the party may have his action.' And, afler referring to
the conflicting authority in Fitzgibbon, 19j6, the author of that Treatise on
the Law of Nisi Prius lays it down as a clear proposition, that where the
matter is stated by the bill as a fact on which the plaintiff founds his claim
for relief, it will be admitted in evidence, and will amount to proof of a con-
fession. These are the authorities in favor of the defendant. The recent
ctee of Lord Trimlestown v. Kemmis, (&) which was also mentioned, is not
one in his favor, for the bill was there admitted to shew what the subject of
the suit was, and to explain a subsequent agreement for a settlement be-
tween the parties. On the other hand, in the above-mentioned case of Lord
Ferrers v. Shirley, (c) a bill preferred by the defendant, stating the exist-
ence of a deed at that time^ was objected to as proof of that fact, on the
ground that it was no more than the surmise of counsel for the better disco-
very of the title ; and the Court would not suffer it to be read. And Lord
Kenyon, in Doe d. Bowerman v. Syboum, (d) where Ae distinction was
insisted upon between facts stated by way of inducement, and those whereon
the plaintiff founds his claim for relief, rejected that distinction, 'and pro-
nounced his j[udgment, in which the Court acquiesced, that a bill in Chancery
is never admitted farther than to shew that such a bill did exist, and that
certain facts were in issue between the parties, in order to let in the answer
or depositions. And it appears that in Taylor v. Cole, (e) his Lordship held
the same doctrine ; with the exception, that a bill in Chancery by an ances-
tor was evidence to prove a family pedigree stated therein, in the same man-
ner as an inscription on- a tombstone, orUn entry in a bible. This exception
also was disallowed by the opinion of the Judges in the Banbury Peerage
case, (reported in 2 Selwyn's Nisi Prius, 756, 10th ed., and correctly reported,
1 See ante, Vol. 1, § 212, 561.
(a) Page 236. (d) 7 T. R. 2.
(6) 9 C. & F. 749. (e) 7 T. B, 9, n.
(c) FiU. 196.
260 LAW OF BVIDBNCE. [PABT TI.
§ 275. In Courts of Equity, however, the hill may be read
as evidence for the defendant^ of any of the matters therein
for I have examined the books of the committee of Privileges, 28th Feb-
ruary and 30th May, 1809.) The Judges unanimously held, that a Inll in
equity was no proof of the facts therein alleged, or as a declaration respect-
ing pedigree ; that it made no distinction that the bill was filed for relief.
And, in answer to the question, whether any bill in Chancery can ever be
received as evidence in a Court of Law, to prove any facts either alleged or
denied in such bill, the Judges gave their opinion, that, 'generally speaking,
a bill in Chancery cannot be received as evidence to prove any fact alleged
or denied in such bill. But, whether any possible case might be put
which would form an exception to such general rule, the Judges could not
undertake to say. In the case of Medcalfe v, Mcdcalfe, (a) Lord Chancellor
Hardwicke held, that the rule of evidence at law was, that a bill in Chan-
cery ought not to be received in evidence, for it is taken to be the sugges-
tion of counsel only ; but in the Court of Chanceiy it had been oflen allowed,
and the bill was read. This distinction was afterwards repudiated in the
case of Kilbee v. Sneyd, (b) by Lord Chancellor Hart When the defend-
ant's counsel offered to read part of the bill, as proof of certain facts on which
he rested part of his defence, the Lord Chancellor said, the Court never read
a bill as evidence of the plaintiff's knowledge of a fact < It is mere plead-
er's matter ; the statements of a bill are no more than the flourishes of the
draughtsman ; ' and that no decree was ever founded on the allegations of a
plaintiff's bill, as evidence of facts; and he further said, that the statements
of a bill are not evidence, and the Registrar could not enter any part of it
on his notes as read. In this state of the authorities directly bearing upon
this question, there can be no doubt that the weight of them is against the
reception of a bill in equity as an admission of the truth of any of the alleged
facts. But it was argued, that there are many more recent authorities indi-
rectly bearing upon this question, which afford a strong analogy in favor of
the reception of a bill in equity as evidence in the nature of a confession.
These are the cases of Brickell v. Hulse (c) and Gardner v. Moult (<f) In
the first of these, a party using an affidavit on a motion, in the second, by
sending another to state a particular fact, was held to make the affidavit and
statement, respectively, evidence against himself. These cases do not fall
under the description of pleadings by parties ; they are rather instances of
admission by conduct, and are analogous to those in which the declarations
of third persons are made evidence by the express reference of the party to
them as being true. This is the explanation very rightly given in Mr. Tay-
lor's recent Treatise on Evidence. In the first of the above-mentioned cases
(a) 1 Atk. 63. (c) 7 A. & £. 454.
(6) 2 Molloy, 208. ((Q 10 A. & £. 464.
PART VI.] SOUBCES, MEANS AND INSTRUMENTS OP EVIDENCE. 261
directly and positively averred.^ For it is part of that record,
upon the whole of which the decree is to be made ; and
it may be presumed that the defendant prepared the affidavit, which he
afterwards exhibited as true ; at all events, that he exhibited it for the pur-
pose of proving a certain fact In the second, it must be taken that he sent
the servant to prove a particular act of bankruptcy ; for, if he sent him to
be examined as a witness, and to give evidence generally as to any act
to which the commissioner might examine him, there coidd be no reason for
holding that his answers would be evidence against the party, any more than
there would be for receiving the evidence of a witness examined by a party
in an ordinaiy trial at law, as an implied admission by him, which, it is con-
ceded, can never be done. (Secf Lord Denman's judgment in both the cases
last cited.) The case of Cole v. Hadley (a) was also referred to as an
authority. From the short report of that case, it is not clear on what ground
the evidence was received. It would seem that it was received as the depo-
sition of a witness on a prior inquiry, between the same parties, on the same
question. It could not be on the ground that the statement was evidence
against the party, simply because the witness was produced by him, as the
contrary was laid down in the two cases of Brickell r. Hulse and Gardner
p. Moult, which were referred to. These authorities, therefore, afford no
reason for doubting the propriety of the decisions above referred to as to
bills in equity. It would seem that those, as well as pleadings at common
law, are not to be treated as positive allegations of the truth of the facts
therein, for all purposes, but only as statements of the case of the party, to
be admitted or denied by the opposite side, and if denied to bo proved, and
ultimately submitted for judicial decision. The facts actually decided by an
issue in any suit cannot be again litigated between the same parties, and are
evidence between them, and that conclusive, upon a different principle, and
for the purpose of terminating litigation ; and so are the material facts alleg-
ed by one party, which are directly admitted by the opposite party, or indi-
rectly admitted by taking a traverse on soihe other facts, but only if the
fraverse is found against the party making it But the statements of a party
in a declaration or plea, though, for the purposes of the cause, he is bound
by those that are material, and the evidence must be confined to them upon
1 2 Dan. Ch. Pr. 974, 976 ; Ives v. Medcalfe, 1 Atk. 63, 65. Such also was
the opinion of Ld. Chancellor Apsley, afterwards Earl Bathurst, the real
author of the book so well known as BuUer's Nisi Prius ; as appears from
the dedication of the first edition, and from Lord Mansfield's manner of quot-
ing it, in 5 Burr. 2832. See Bull. N. P. 235 ; 2 £zch. Bep. 677, n. ; Ante,
Vol. 1, ^ 551.
(a) 11 A. & E. 807.
263 LAW OP BVIDBNCB. [PAET VI.
whether the allegations be true or not, is immaterial, they
being put forth as true, and of the nature of judicial admis-
sions, for the purposes of that particular trial.^ But it is only
the amended bill that may thus be read, this alone being of
record ; unless the amendment has altered the effect of the
answer, or rendered it obscure ; in which case the original
bill may be read by the defendant, for the purpose of explain-
ing the answer.^ It may also be read, upon the question as
an issue, ought not, it should seem, to be treated as confessions of the truth
of the facts stated. Many cases were suggested in the argument before us,
of the inconveniences and absurdities which would follow from their admis-
sion as evidence in other suits, of the truth of the facts stated. There is,
however, we believe, no direct authority on this point. The dictum of Lord
Chief Justice Tindal, in The Fishmonger's Company v. Robinson, (a) which
was referred to in argument, seems to be considered as amounting to a deci-
sion on this point; but it was unnecessary for the determination of that case.
It is enough, however, to say, that, as to bills of equity, the weight of authority
is clearly against their admissibility, for the only purpose for which they were
material in the present case ; and we are bound by that authority.'' Id. 6 76-68 1.
From these and other authorities, it seems clear, that the bill, if sworn
to, is evidence against the plaintiff as an admission of the truth of the
&cts therein stated. Its admissibility, however, does not depend on the
oath, but on the fact that he is conusant of the statements in the bill, and
solemnly propounds them as true. The oath is a proof of this knowledge and
solemn assertion ; but may not other evidence be equally satisfactory ? If
so, the question is reduced to the single point of the plaintiff's knowledge of
what is contained in the bill ; unless it be maintained that, notwithstanding
the present state of forensic law, parties are still at liberty to allege, as true,
material propositions of fact which they know to be false. It is therefore
conceived that, in the United States, and under the new rules of practice,
the general question, as stated in Boileau v. Rutlin, may still be regarded as
an open question. There was another ground on which the bill in Chan-
cery in Boileau v. Rutiin might well have been rejected, namely, that the
admission it contained was a confessio Juris, or, at most, a mixed proportion of
law and fact, which is not to be proved by the mere admission of the party,
when better evidence is within the power of the adverse party, by the pro-
duction of the instrument itself. See ante, Vol. 1, ^ 96.
1 See ante, Vol. 1, ( 169, 186, 208.
9 2 Dan. Ch. Pr. 976 ; Hales v. Pomfret, Dan. Exch. R. UL And
M'Gowen v. Young, 2 Stewart, 276.
(a) 6 M. & G. 192.
J
1
PABT VI.] SOURCES, MEANS AND INSTRUMENTS OF EVIDENCE. 263
to costs, for the purpose of showing quo animo the bill was
filed.^ And the plaintiff's bill, filed in another suit, may
sometimes be read against him, on proof of his actual privity
to the contents and to the filing of it ; especially where it is
read in explanation or corroboration of other evidence in the
cause.2 But where the plaintiff has incorrectly stated circum-
stances with which he may well be presumed to have been
unacquainted, and the defendant does not rely upon them in
his answer, the plaintiff will not be held bound by the state-
ment^
§ 276. The bill alone may also sometimes be read by the
plaintiffs as evidence against the defendant of his admission of
the truth of the matters therein alleged, and not noticed in
his answer. The principle, governing this class of causes, is
this, that the defendant, being solemnly required to admit or
deny the truth of the .allegations, has, by his silence, admitted
it. Qui tacety cum loqui debetj consentire videtur. But this
applies only to facts either directly charged to be within the
knowledge of the defendant, or which may fairly be pre-
sumed to be so ; ^ for if the matters alleged are not of either
of these description^, the better opinion is, that the defend- .
ant's omission to notice them in his answer is merely matter
of exception on the part of the plaintiff, in order to obtain a
distinct admission or denial, upon the particular point^ If
he replies, instead of excepting, he must prove the allega-
tions.^ If the defendant, being duly served with a subpcenaj
I Ibid. ; Fitegerald r. OTlaherty, 1 Moll. 347.
» 2 Dan. Ch. Pr. 977 ; Woollett t?. Roberts, 1 Cb. Cas. 64 ; Handesidc r.
Brown, 1 Dick. 286 ; Lord Trimlestown r. Kemmis, 9 CI. & Fin. 749.
3 Wright 17. AfiUer, 1 Sandf. Ch. R. 103.
4 2 Dan. Ch. Pr. 977, note by Perkins ; Torrington v. Carson, 1 Porter,
257 ; Kirkman v. Vanlier, 7 Ala. 217 ; Ball t. Townsend, 6 Litt 325 ; Mose-
ley V. Garrett, 1 J. J. Marsh. 212 ; Tobm v. Wilson, d J. J. Marsh. 63 ; Pier-
son V. Meauz, 3 A. K. Marsh. 4.
5 Ibid. And see Tate v. Connor, 2 Dev. Ch. 224 ; Lnm v. Johnson, 8 Lred.
Ch. 70 ; Cropper v. Bartons, 5 Leigh, 426 ; Coleman tr. Lyne, 4 Band. 454.
6 Cochran v. Cowper, 1 Harringt 200. In Young v. Grundy, 6 Cranch,
51, it was said, in general teims, that if the answer neither admits nor denies
264 LAW OF BVIDBNCB. [PART VI.
contumaciously neglects to appear and answer;^ or moves
to dismiss the bill, on the ground that the claim is barred by
lapse of time ; or answers evasively ; the allegations will be
taken as admitted.^ And where the plaintiff reads the de-
fendant's answer in evidence against him, he may also read
BO much of the bill as is necessary to explain the answer.^
§ 277. The answer of the defendant^ being a deliberate
statement on oath, is evidence against him of all the matters
it contains ; and is extremely strong, though not so entirely
conclusive as to preclude him from showing that it was made
under an innocent mistake. And it may be read, notwith-
standing the plaintiflf, by his replication, has denied the truth
of the whole answer.
§ 278. But it is only the answer of a person sui juris that
can be treated as an admission of the facts, so far as to dis-
pense with other proof of them ; and therefore the answer of
an infant by his guardian, cannot be read against the infant,
for he cannot make an admission which ought to bind him ;
though it may be read against the guardian, for it is he alone
that makes oath to it.^ Nor can an infant's case be stated
the allegations in the bill, they mnst be proved at the hearing ; the distinc-
tion taken in the text not being adverted to, as the case did not call for it
1 Ante, Vol. 1, ^ 18 ; Atwood v. Harrison, 5 J. J. Marsh. 329 ; Higgins
Y. Conner, 3 Dana, 1. In these cases, however, if there is no general order
on the subject, it is usual to make a special order, that unless an answer is
made within a certain time, the bill will be taken j9ro confesso. See Cory v.
Gerteken, 2 Madd. 43 ; 1 Dan. Ch. Pr. 569 - 677, (Perkins's ed.) ; 1 Hoffm.
Ch.Pr. ch. 6,p. 184-190.
s Jones V. Person, 2 Hawks, 269 ; Sallee v. Duncan, 7 Monr. 382 ;
M'Cambell v. Gill, 4 J. J. Marsh. 87.
3 M'Gowen r. Young, 2 Stew. 276.
4 Eggleston v. Spekc, 8 Mod. 258; Comb. 156, 2 Vent.J2, S. C; Wrot-
tesley v. Bendish, 8 P. Wms. 237 ; Legard v. Sheffield, 2 Atk. 377 ; Haw-
kins V. Luscombe, 2 Swanst. 392 ; Stephenson v. Stephenson, 6 Paige, 358 ;
Kent V, Taq^yhill, 6 G. & J. 1 ; Harris v. Harris, Id. Ill ; 1 Dan. Ch. Pr.
214 ; 2 Kent, Comm. 245. The infant's answer by his mother may be read
against her. Beasley v. Magrath, 2 Sch. & Lefr. 34.
PABT YI.] SOURCES, MEANS AKD INSTRUMENTS OP EYIDENOE. 265
by the Court o( Chancery, for the opinion of a Court of Law ;
because the admissions in such case would not be binding on
the infant.^ So, the joiht answer of husband and wife, though
it may be read against both if U relates merely to the person'
al property belonging to the wife, yet if it relates to the tn-
heritance of the wife, it cannot be read against her, though it
still may be read against the husband.^ But where the wife
had represented herself and transacted as a feme sole, the
other parties believing her to be such, and the husband had
connived at the concealment of the marriage, her answer was
allowed to be read, against the husband.^ And where a
feme covert, being heir at law of a testator, lived separate and
answered separate from her husband, pursuant to an order
for that purpose, her admission of the will was held sufficient
ground to establish it.^
^ Hawkins v, Lascombe, 2 Swanst. 892.
3 £vaD8 V. Cogan, 2 F. Wms. 449. And see Merest v. Hodgson, 9 Price,
563 ; Elston v. Wood, 2 M. & E. 678 ; Ward r. Meath, 2 Chan. Ca. 172 ;
1 £q. Cas. Abr. 65, pi. 4 ; 1 Dan. Ch. Pr. 197. llie answer of a feme ex-
ecutrix shall not be read to charge the husband. 1 £q. Cas. Abr. 227;
Cole V. Gray, 2 Vem. 79.
3 Rutter V. Baldwin, 1 Eq. Cas. Abr. 226.
4 Codrington v. E. of Shelburne, 2 Dick. 475. * In sereral of the United
States, it is enacted, that the answer of the defendant, discovering a conceal-
ment of the property of a judgment^ebtor, to defraud his creditors, shall not
be read in evidence against such defendant, in a criminal prosecution for
the same fraud. See New York, Blatchford's Statutes, g. 307 ; Union Bank
V, Barker, 3 Barb. Ch. R. 358 ; IlHnois, Rev. Stat. 1845, ch. 21, ^ 36, 37 ;
Mchigan, Rev. Stat 1846, ch. 90, ( 27, 28; Wisconsin, Rev. Stat. 1849,
ch. 84, ^10, 11 ; Arkansas, Rev. Stat 1837, ch. 23, ^ 130, 132. In Ver-
mont, the statute provides, that ^* the answer of the defendant in Chancery
shall not be used as evidence to prove any fact therein stated, in any prose-
cution against such defendant, for a crime or penalty." Verm. Rev. Stat
1839, ch. 24, ^ 25. In New York, it is also enacted that no pleading can be
used in a criminal prosecution against the party, as proof of a &ct admitted
or alleged in such pleading." Amend. Code, ^157. In Iowa " no {verified)
pleading can be used in a criminal prosecution against the party ; nor can a
party be compelled to state fiicts which, if true, would subject him to a pro-
secution ioT felony" Code of 1851, ^ 1748. In Virginia, ** evidence shall
not be given against the accused, of any statement made by him as a witness
upon a legal examination." Code of 1849, ch. 199, ^ 22. But it is perfectly
VOL. III. SS
266 LAW OF EVIDENCE. [PAKT YI.
§ 279. There are also some exceptions to the rule in regard
to the answer of cm infant. For after he comes of age he
may be permitted to file a new answef, upon his affidavit that
he now can make a better ^defence than before ; but he is
bound to do this, as he is in respect to the confirmation or
avoidance of other acts of his infancy, within a reasonable
time after his coming of age, and without laches ; if, there*
fore, he unreasonably delays to apply for leave to make a
better defence, he will be taken to have confirmed his former
answer, and it may then be read against him.^ And if the
infant's father, being an heir at law, and of age, has by his
answer in the original suit admitted the due execution of the
will of his ancestor, but died before the cause was brought
to an bearing, the answer may be read against the infant, as
an admission of the will and sufficient to establish it^
§ 280. But though, in general, the answer of an infant
cannot be read against him, except as above stated, yet the
rule is different in regard to idiots and persons of permanently
clear, as a general rule of law, that no p^rty or witness can be compelled to
discover or to state any matter which may expose him to a criminal charge
or penalty. AnU^ Vol. 1, ^ 193, n. ; Id. ^461 ; Story, Eq. PI. ^ 675 - 578, 591 -
598; Wigram on Discovery, PI. 180-133; Litchfield £. of, v. Bond,
6 Beav. 88 ; Adams v. Porter, 1 Cush. 170 ; 1 Dan. Ch. Pr. 626, 6St, and
notes by Perkins; Livingston v. Thompkins, 4 Johns. Ch. 432 ; L^^tt v.
Postley, d P»ge, 599. And it is now well settled, that if a witness, claiming
the protection of the Court, is obliged to answer in a matter tending to cri-
minate himself; what he says must be considered to have been obtained by
compulsion, and cannot afterwards be given in evidence against him. Begina
V. Garbett, d C. & E. 474, 495 ; Ante, Vol. 1, ^ 451. The same principle, it
b conceived, will apply to matters which the defendant has been compelled
to disclose in his answer in Chancery. But where the defendant voluntarily
answers, without obtaining the protection of the Court by demurring or oth-
erwise, the answer may be read in evidence against him, in a criminal prose-
cution. Begina v. Goldshede, 1 C. & K. 657. And see anU, Vol. 1, ^ 19a,
225, 226.
1 Cecil V. Salisbury, 2 Yem. 224 ; Bennett v, Lee, 1 Dick. 89 ; 2 Atk.
487, 5*29; Stephenson v. Stephenson, 6 Paige, 35S ; Mason v- Debow,
2 Hay w. 1 78.
B Lock o. Foote, 4 Sim. 132.
PABT VL] BOURCBS, MBAKS AND INSTRUMENTS OF EVIDENCE. 267
weak intellects, and those who by reason of age or infirm*
ity are redaced to a second infancy ; their answer, which is
made by gaardian, being admitted to be read against them,
as the answer of one of full age, made in person. The
reason of the difference is said to be this, that as the infant
improves in reason and judgment, he is to hava a day to
show cause, after he comes of age ; but the case of the oth-
ers being hopeless, and becoming worse and worse, they can
have no day.^
§ 281. In regard to the reading' of the answer im support of
the plaintiffs case^ the rule in Equity is somewhat different
from the rule at Law. For though, as we have heretofore
seen,^ when the answer of a defendant in Chancery is read
against him, in an action at law, the defendant is entitled to
have the whole read ; yet in Courts of Equity the rule is,
that <^ where a plaintiff chooses to read a passage from a de«
fendant's answer, he reads all the circumstances stated in the
passage ; and if it contains a reference to any other passage,
that other passage must be read also ; but it is to be read
only for the purpose of explaining, so far as explanation may
be necessary, the passage previously read, in which reference
to it is made. If, in the passage thus referred to, new facts
and circnmstances are introduced, in grammatical connection
with that which must be read for the purpose of explaining
the reference, the facts and circumstances so introduced are
not to be considered as read." ^ Thus, where the passage
read commenced with the words " before such demand was
made," the plaintiff was ordered to read the passage imme-
diately preceding, in which that demand was spoken of.^ The
defendant, also, may read any other passage in his answer,
I 1 Dan. Ch. Pr. 224, 225 ; Leving v. Canely, Free. Ch. 229. And see
2 Johns. Ch. 235-237.
« Ante, Vol. 1, ( 201, 202.
3 Bartlett v. Gillard, 3 Russ. 157, per Ld. Eldon. And see Nurae v. Bnnn,
5 Sim. 225 ; Colcott v. M^her, 2 Moll. 316 ; Oxmond v. Hntchinson, 13 Yes.
53.
4 Ibid.
268 LAW OP EVIDBNCB. [PAKT VI.
connected in meaning with that which the plaintiff has read.^
The want of grammatical connection will not prevent ano-
ther part from being reati, if it is connected in meaning and
is explanatory of the other ; and, on the other hand, a merely
grammatical connection, as, for example, by the particles but
or andj will not entitle another part to be read, if it have no
such explanatory relation.^ It may here be added, that where
the plaintiff, in reading a passage from a defendant's answer,
has been obliged to read an allegation which makes against
his case, he will be permitted to read other evidence, disprov-
ing such allegation.^
§ 282. The manner of statement in the answer, is some-
times material to its effect, as an admission against the de-
fendant, dispensing with other proof. For a mere statement
that the defendant has been informed that a fact is as stated,
without expressing his belief of it, will not be regarded as an
admission of the fact. But if he answers that he believes^ or,
15 informed and believes that the fact is so, this will be deemed
a sufficient admission of the fact, unless this statement is
coupled with some qualifying clause, tending to the con-
trary ; the general rule in . Equity on this point being, that
what the defendant believes^ the Court will believe. But an
exception to this rule has been admitted in regard to the
belief of an heir at law of the due execution of a will by his
ancestor ; it being the course of the Court to require either a
direct admission, or proof in the usual manner.^
§ 283. We have already seen, that generally, the answer of
one defendant cannot be read against another, there being no
issue between them, and, therefore, no opportunity for cross-
> Rude V, Whitchurch, 3 Sim. 662 ; Skerrett r. Lynch, 2 MoIL 320.
« Davis p. Spurling, 1 Ruaa. & My. 64 ; Tarn. 199, S. C.
8 2 Dan. Ch. Pr. 979 ; Price v. Lytton, 3 Russ. 206.
* 2 Dan. Ch. Pr. 980 ; Potter v. Potter, 1 Vez. 274. Whether thia ex-
ception applies to an adminiatrator^s belief that a debt is due from the intes-
tate, qware ; and see Hill v, Binney, 6 Yes. 738.
PART VI.] SOURCES, MEANS AND INSTRUMENTS OP EVIDBNCB. 269
examination; but that this rale does not apply to cases
where the defendant claims through hinr whose answer is
proposed to be read ; nor to cases where they are jointly
interested in the transaction in question, as partners, or are
otherwise identified in interest^ So, where the defendant,
in his own answer, refers to that of his co-defendant for fur-
ther information.^ And though it is laid down, as a gene-
ral rule, that the answer of one defendant cannot be read by
another defendant as evidence in his own favor ;^' yet the
universality of this rule has been controverted ; and it has
been held, that where the answer in question is unfavorable
to the plaintiff, and is responsive to the biU, by furnishing a
disclosure of the facts required, it may be read as evidence in
favor of a co-defendant ; especially where the latter defends
under the title of the former.^
I Ante, Vol. 1, $ 178, 180, 182; 2 Dan. Ch. Fr. 981, 982, and cases in
notes by Pei^ins. And see Crosse v. Bedingfield, 12 Sim. 85.
9 Ibid. ; Chase v. Manhardt, 1 Bland, 336 ; Anon. 1 F: Wms. 301.
3 2 Dan. Ch. Pr. 981, (Ferkins's ed.) and notes.
^ Mills V, Gore, 20 Pick. 28. The decision in this case proceeded on the
general ground, thoagb the latter circumstance was also mentioned, as an
independent reason. The language of the Court was as follows: — "An
answer of one defendant is not evidence against a co-defendant, for the
plaintiff may so frame his bill and interrogatories, as to elicit evidence from
one defendant to charge another, and to exclude such matters as might di»-
charge him. To admit the answer of the one to be evidence against the
other, under such circumstances, and when cross-interrogatories could not
be adnutted, would give to the plaintiff an undue advantage, against the
manifest principles of impartial justice. But where the answer is unfiivora-
ble to the plaintiff, and consequently operates favorably for a co-defendant,
this reason is not applicable. Where the plaintiffs call upon a defendant
for a discovery, requiring him to answer under oath fully to aU the matters
charged in the bill, they ca^nnot be allowed to say that his answer is not tes-
timony. And so was die decision in Field v, Holland, 6 Cranch, 8. In
that case it was held that the answer of Cox, one of the defendants, was not
evidence against the other defendant, Holland, but that being responsive to
the bill it was evidence against the plaintiff. And besides, in the present
case, the respondent Quincy has a right to defend himself under the title of
Grore. He is but a depositary of the papers, and became such at the request
of both parties. He has no interest in the question, but is boimd to deliver
the papers to the party havmg the title. The question of tiUe is between.
23 •
270 LAW OF EVIDENCE. [PART VI.
§ 284. The answer of the defendant is not only evidence
against him, but it may also, to a certain extent, and if
sworn to, be read as evidence in his favor^ sufficient, if not
outweighed by opposing proof, to establish the facts it con-
tains.^ For it is to be observed, that the bill, though in part
a mere pleading, is not wholly so ; but where the older forms
are still used, it is the examination of a witness by interroga-
tories. And in those States in which the interrogating part
of the bill is now dispensed with, and the defendant is by the
rules required to answer each material allegation in the bill
as particularly as if specially interrogated thereto, the bill, it
is conceived, partakes in all cases of the character both of a
pleading and also of an examination of the defendant as a
witness. The answer, too, so far as it sets up a new and
distinct matter of defence, to defeat the equity of the plain-
tiff, is a mere pleading, in the nature of a confession and
avoidance at law. When it only denies the facts on which
the plaintiff's equity is founded, it is not only a pleading,
but it is a pleading coupled with evidence. In all other re-
spects, and so far as it is responsive to the bill, it is evidence ;
and the plaintiff, having thought fit to make the defendant a
witness, is bound by what he discloses, unless it is satisfacto-
the plaintiffs and the defendant Gore, and Gore's answer, being evidence
for him in support of his title, is consequentially evidence for the other
defendant. So, that in whatever point of view the objection may be consid-
ered, we think it quite clear that the answer in question, so far as it is
responsive to the bill, is evidence to be weighed and considered ; and that it
is to be taken to be true, unless it is contradicted by more than one witness,
or by one witness supported by corroborating circumstances, according to
the general rule of equity. The answer in all respects, in relation to the
question as to the delivery of the deed and note, b directly responsive to the
allegations in the bill, and it expressly denies that the deed and note were
ever delivered to the plaintiff Mills, as charged in the bill." 20 Pick. 84, 35.
* Clason V. Morris, 10 Johns. 524, 542 ; Union Bank r. Geaiy, 6 Pet. 99;
Daniel r. Mitchell, 1 Story, R 172, 188 ; Adams, Doctr. of Eq. 21, 363. In
Indiana^ it is enacted, that " Pleadings, sworn to by either party, in any
case, shall not on the trial be deemed proof of the &cts alleged therein, nor
require other or greater proof on the part of the adverse party than those
Bot sworn to." Eev. Stat 1852, VoL 2, Part 2, ch. 1, ^ 785, p. 205.
PART VI.] SOTJRCBS, MEANS AND INSTRUMEN^TS OF BVIDENCB. 271
rily disproved. Nor is the answer, iirsuch case, to be discre-
dited nor any presumption indulged against it, on account of
its being the answer of an interested party .^
§ 285. The test of the responsive character of the answer is
by ascertaining whether the questions answered would be
proper to propound to a witness in a trial at law ; whether
they would be relevant to the complaint, and such as the
witness would be bound to answer ; and whether the answers
would be competent testimony against the interrogating
party .2 Thus, the answer is held competent evidence for
the defendant, of all those facts, a statement of which is
necessary in order to make a full answer to the bill.^ So, if
an account is required by the bill, and is given in the answer,
or is rendered to the master, and explained in answers to
interrogatories put before him, the answers are responsive,
and are competent evidence for the defendant.* So, if the
bill sets forth only a part of the complainant's case, omitting
the residue, and the omitted part is stated in the answer,
thereby showing a different case from that made by the bill,
and not merely by way of confession and avoidance, it is evi-
dence in the cause.^ And hence, where a bill, for the specific
performance of a contract in writing, called on the defendant
to answer as to the making of the contract, the execution of
the instrument, how it was disposed of, and when, where,
and how the defendant obtained possession of it, and under
what pretences ; it was held, that the allegations in the an-
swer, setting up an agreement to rescind the contract, were
responsive to the bill, and were evidence for the defendant.^
I Clason t7. Morris, 10 Johns. 542 ; Field v. Holland, 6 Crancb, 24 ; Wood-
cock V, Bonnet, 1 Cowen, 748, 744, n. ; Stafford v. Bryan, 1 Paige, 242 ;
Forsyth v. Clark, 3 Wend. 643.
? Dunham v. Yates, 1 Hoffm. Ch. R 185.
3 Allen V. Mower, 17 Verm. 61.
4 Powell V. Powell, 7 Ala. 582 ; Chaffin v. Chaffin, 2 Dev. & Bat Ch.
255.
5 Schwarz v. Wendell, Walk. Ch. 267.
6 Woodcock V. Bennett, 1 Cowen, B. 711.
272 'LAW OF EVIDENCE. [PAKT VI.
§ 286. Regularly, in proceedings in Chancery, the defend-
ant's answer is under oath^ unless the plaintiff chooses to dis^
pense with it; in which case he moves the Court for an order
to that effect ; which, if the defendant is under no incapacity,
such as infancy, or the like, is ordinarily granted.^ If the
parties agree, the order is granted of course ; and if the plain-
tiff files a replication to an answer not sworn to, this is evi-
dence of a waiver of the oath.^ Where the answer is not
sworn tOj its effect and value, as evidence in the cause, is a
point on which, in this country, some difference of opinion
has been expressed. The rule in England, as held by Lord
Eldon, was, that the defendant's answer without oath gave
the same authority to the Court to look at the circumstances,
denied or admitted in the answer so put in, for the purpose
of administering civil justice between the parties, as if it was
put in upon the attestation of an oath.^ In a case in the
Supreme Court of the United States, which was an injunc-
tion-bill, filed upon the oath of the complainant, to which an
answer, by a corporation, was put in without oath, the ques-
tion was as to the amount of evidence necessary to outweigh
the answer. The Court said that the weight of such answer
was very much lessened, if not entirely destroyed, as matter
of evidence, when not under oath ; and, indeed, that they
1 Cooper, Eq. PL 325 ; Story, Eq. PL ^ 874; 2 Dan. Ch. Pr. 846.
9 Fulton Bank v. Beach, 6 Wend. 36 ; 2 Paige, 307, S. C. By the pre-
sent Code of Practice in New York, if the plaintiff makes oath to his com-
plaint, the defendant is bound to put in his answer under oath ; but the veri-
fication to the anflwer may be omitted, when an admission of the truth of
the allegations might subject the party to prosecution for felony. Amended
Code, ^ 167 ; Hill t?. Muller, 8 N. Y. Leg. Obs. 90 ; Swift v.Hosmer, 6 N. Y.
Leg. Obs. 317 ; 1 Code Bep. 26, S. C. ; Alfred v. Watkins, 1 Code Rep.
843, N. S. If the defendant verifies his answer by oath, all the subsequent
pleadings must be verified in like manner, whether the complaint ia verified
or not. Lin v. Jaquays, 2 Code Bep. 29 ; Levi v. Jakeways, Id. 69 ; Code,
ttbi supra,
3 Curling v. Townsend, 19 Yes. 628. This was an application by the de-
fendant for leave to file a supplemental answer ; in other words, to deprive
the plaintiff of the benefit to which he was entitled from the answer which
was already on the record, but was without oath. 2 Dan. Ch. Pr. 848.
PABT VI.] SOUECES, MEANS AND INSTRUMENTS OP EVIDENCE. 273
were inclined to adopt it as a general rule, that an answer
not under oath, is to be considered merely as a denial of the
allegations in the bill, analogous to the general issue at law,
so as to put the complainant to the proof of such allegations.
But the cause was not decided on this ground, there being
sufficient circumstances, in the case, corroborating the testi-
mony of the opposing witness, to outweigh the answer, even
if it had been sworn to.^ And Mr. Chancellor Walworth, in
a case before him, is reported to have held, that an answer, not
sworn to, was not of any weight as evidence in the cause.^
But Mr. Justice Story, speaking of such an answer, was of
opinion, that it is by no means clear that it is not evidence
in favor of the defendant as to all facts, which are not fully
disproved by the other evidence and circumstances in the
case, nor clear that it ought not to prevail, where the other
evidence is either defective, obscure, doubtful, or unsatisfac-
tory. And it may well be suggested, he adds, whether the
plaintiff has a right to dispense with the oath, and yet to
make the answer evidence in his own favor as to all the facts
which it admits, and exclude it in evidence as to all the facts
which it denies.^
1 Union Bank of Georgetown v, Geary, 5 Pet 99, 112.
' Bartlett v. Gale, 4 Paige, 503. And see, accordingly, Willis v, Hen-
derson, 4 Scam. 13. In some of the United States, it is enacted, that when
the plaintiff waives his right to a sworn answer, the answer shall have no
more weight as evidence, than the bill. See Afichigariy Rev. Stat. 1846, ch.
90, ^ SI ; lUinoUy Rev. Stat. 1845, ch. 21, ^ 21. See also, Massachusetts^
Reg. Gen. in Chan. 24 Pick. 411, Reg. 5. If the defendant is entitled, by
the rules of law, to have his answer considered in evidence, though not
sworn to, the question has sometimes been raised, whether the Court can, by
any rule of practice, exclude it
3 Story, £q. PI. ^ 875, d. Subsequently to the publication of the work
here cited, the same point was adverted to by Mr. Justice Wayne, in deli-
vering the opinion of the Court in Patterson r. Gaines, 6 How. S. C. R. 588 ;
in which he cited and reaffirmed the observations of the learned Judge in
5 Pet 112, above quoted, and also that of Mr. ChanceUor Walworth, in
Bartlet v. Gale, supra» But here, too, the point was not raised in argument,
nor was it judicially before the Court, the testimony of the opposing wit-
ness being, as the Judge remarked, so strongly corroborated by other proofs,
274 LAW OF EVIDBNCB. [PABT VI.
§ 287. The general rule that the defendant's answer, re-
sponsive to the bill, is evidence in his favor, is subject to seve^
ral limitations and exceptions. For though, in formy it is
responsive to an interrogatory in the bill, yet if it involves
also, affirmatively, the assertion of a right, in opposition to
the plaintiff's demand, it is but mere pleading, and is there-
fore not sufficient to establish the right so asserted.^ The
answer, also, must not be evasive ; it must be direct and
positive, or so expressed as to amount to a direct and posi-
tive denial or affirmation of the facts distinctly alleged and
charged or denied in the bill, in order to have weight as evi-
dence, in his own favor, in regard to those facts.^ And this
is especially true, as to facts charged in the bill as being the
acts of the defendant, or within his personal knowledge.^ If,
however, they are such, that it is probable he cannot recol-
lect them so as to answer more positively, a denial of them
according to his knowledge, recollection, and belief, will be
sufficient^ And no particular form of words is necessary ;
it being sufficient if the substance is so.^ But if the defend-
ant professes a want of knowledge of the facts alleged in the
bill, the answer is not evidence against those allegations, even
though he also expressly denies them.^ So, if the fact
that the answer would be disproved, if it had been sworn to. The attention
of the Court does not seem to have been drawn to the doubt suggested by
Mr. Justice Story. In Babeock v. Smith, 22 Pick. 61, 66, the question,
whether the depositions of co-defendants were admissible for each other,
where the plaintiff had waived the oath to their answers, was raised, but not
decided.
1 Paynes v. Coles, 1 Munf. 878 ; Clarke w. White, 12 Pet 178, 190.
9 2 Dan. Ch. Pr. 880, 831, 984, and notes by Perkins ; Wilkins v. Wood-
fin, 5 Munf. 183 ; Sallee v. Duncan, 7 Monr. 382 ; Hutchinson v. Sinclair,
Id. 291. And see McGuffie v. Planters Bank, 1 Freem. Ch. 888 ; Amos p.
Heatherby, 7 Dana, 46. '
3 Hall t». Wood, 1 Paige, 404 ; Sloan v. Little, 3 Paige, 108 ; Knicker-
backer v. Harris, 1 Paige, 209, 212.
4 Ibid.
* Utica Ins. Co. v. Lynch, 8 Paige, 210.
< Drury V. Connor, 6 H. & J. 288 ; Bailoy v. Stiles, 2 Green, Ch. 245 ;
McGuffie V. Planters Bank, 1 Freem. Ch. 388 ; Town v. Needham, 8 P^ge,
PABT VI.] SOURCES, MEANS AND INSTRUMENTS OF EVIDENCE. 275
asserted by the defendant is such, that it is not and cannot
be within his own knowledge, but is in truth only an expres-
sion of his strong conviction of its existence, or is what he
deems an infallible deduction from facts which were known
to him ; the nature of his testimony cannot be changed by
the positiveness of his assertion, and therefore the answer
does not fall within the rule we are considering.^ The an-
swer of an infant, alsp, by his guardian, ad litem^ though it
be responsive to the bill, and sworn to by the guardian is
not evidence in his favor ; for it is regarded as a mere plead-
ing, and not as an examination for the p'urpose' of disco-
very.*
§ 288. But in order that the answer may be evidence for
the defendant, it is not ahoays necessary tluUit should be re-
sponsive to the bill; for where no replication has been put in,
and the cause is heard upon the bill, answer and exhibits, the
answer is considered true throughout, in all its allegations,
and whether responsive or not ; upon the plain and obvious
principle that the plaintiff, by not filing a replication and
thereby putting the facts in issue, has deprived the defendant
of the opportunity to prove them.^ And if, after a replica-
546 ; Dunham v. Gates, 1 Hoffm. Ch. R 185 ; Whitdngton v. Roberts,
4 Monr. 1 73 ; The State v. HoIIoway, 8 Blackf. 45.
1 Clark V. Van Riemadyk, 9 Cranch, 160, 161 ; Pennington v. Gittings,
2 G. & J. 208. And see Copeland v. Crane, 9 Pick. 73 ; Garrow v. Car-
penter, 1 Fort. 359 ; Waters v. Creagh, 4 Stew. & Port 310 ; Lawrence v.
Lawrence, 4 Bibb, 357; Harlan v. Wingate, 2 J. J. Marsh. 138; Hunt v.
Bousmanier, 3 Mason, 294 ; Fryrear v. Lawrence, 5 Gihn. 825 ; Dugan v.
Gittings, 3 Gill, 138 ; Newman v. James, 12 Ala. 29.
2 Bulkley v. Van Wyck, 5 Paige, 536. And see Stephenson v. Stephen-
son, 6 Paige, 353.
3 2 Dan. Ch. Pr. 1188, 1189 ; Id. 984, and note by Perkins; Dale v. Mc-
Evers, 2 Cowen, 118, 126. And see Barker v. Wyld, 1 Vern. 139; Ken-
nedy V. Baylor, 1 Wash. 162 ; Peirc^ v. West, 1 Pet C. C. R. 35 1 ; Slason
V. Wright, 14 Verm. 208; Leeds v. Marine Ins. Co. 2 Wheat. 380. In Ar-
kansas, it is enacted, that " when any complainant shall seek a discovery
respecting the matters charged in the bill, the disclosures made in the an-
swer shall not be conclusiye, but, if a replication be filed, may be contr»-
276 LAW OF EVIDENCE. [PABT VI.
tion is filed, the cause is set down for a hearing on the bill
and answer, by the plaintiff, or by consent, the answer is still
taken as true, notwithstanding the replication.^ And where
the defendant states only that he believes, and hopes to be
able to prove, the facts alleged in the answer, the same rule
prevails, and the facts so stated are taken for truth.^ If,
where the cause is heard upon bill and answer, it appears that
the plaintiff is entitled to a decree, he must take it upon the
qualifications stated in the answer.^
§ 289. Subject to the preceding qualifications and excep-
tions, the known rule in- Equity, as before intimated,* is " that
an answer, which is responsive to the allegations and charges
made in the bill, and contains clear and positive denials
thereof, must prevail ; unless it is overcome by the testimony
of two witnesses to the substantial facts, or at least, by one
witness, and other attendant circumstances which supply the
want of another witness, and thus destroy the statements of
the answer, or demonstrate its incredibility or insufficiency as
evidence." *» From the manner in which this rule is stated,
dieted or disproved, as other testimony, according to the practice of Courts
of Chancery." Rev. Stat 1837, ch. 23, ^ 49. So is the law iu Missovri^
Bev. Stat. 1845, ch. 187, ^ 30. And in lUinoiSj Her. St 1845, ch. 21, $ S3.
In OhiOf it is enacted that, at a hearing on bill and answer, the answer may
be contradicted by matter of record referred to in the answer, but not oth-
erwise. Rev. Stat 1841, ch. 87, ^ 31. So also is the statute law in New Jer-
sey, Rev. Stat, 1846, tit 33, ch. 1, ^ 38. And in Aftssouri, Rev. Stat 1845,
ch. 137, ^ 29. And in Illinois, Rev. Stat. 1845, ch. 31, ^ 32.
1 Moore v, Hylton, 1 Dev. Ch. 429 ; Carman v. Watson, 1 How. Miss. R.
333 ; Recce v. Darley, 4 Scam. 159.
« Brinckerhoffr. Brown, 7 Johns. Ch. 217, 223.
3 Doolittle V, Gookin, 10 Verm. 265.
* Supra, 4 277. And see ante, Vol. 1, ^ 260.
6 Daniels v. Mitchell, 1 Story, R 172, 188, per Story, J.; Lenox v, Prout^
3 Wheat 520. And sec 2 Dan. Ch. Pr. 983, and cases in Mr. Perkins's
note; 2 Story, Eq. Jur. ( 1528. In Jotva, every pleading required to be
made under oath, if sworn to by the party himself, is considered as evidence
in the cause, of equal weight with that of a disinterested witness. Rev. Code,
1851, 4 1745 ; and every affirmative allegation duly pleaded in the petition,
if not responded to in Uie answer, is taken as true. Id. ( 1742. Bat an
PART VI.] SOURCES, MEANS AND INSTRUMENTS OF EVIDENCE. 277
both here and elsewhere, it might at first view appear as
though the testimony of a witness were indispensable, and
answer though responsive to the bill, and denying its charges, and not out-
weighed by two opposing witnesses, or by one witness and other equivalent
testimony, is not conclusive upon a Jury. Hunter v, Wallace, 1 Overton,
239. In Indiana, it is enacted, that pleadings, sworn to by either party, in
any c£vse, shall not, on the trial, be deemed proof of the &cts alleged therein,
nor require other or greater proof on the part of the adverse party, than
those not sworn to. Bev. St^t 1852, Ft 2, ch. 1, ^ 75. In Mississippi, the
rule, requiring more than one witness to overthrow an answer in Chancery,
is abolished in all cases where the bill is sworn to by the complainant ; and
it is enacted, that the answer shall in no case receive greater weight and
credit, upon the hearing, than, in view of the interest of the party making
it, and the circumstances of the case, it may be &irly entitled to. Stat Feb.
15, 1838, ^ 6 ; Aid. & Van Hoes. Dig. p. 847. In Arkansas, the answer to
a bill of discovery is not conclusive ; but on filing a replication, the plaintiff
may contradict or disprove it, as in other cases, according to the course of
practice in Chancery. Bev. Stat. 1837, ch. 23, ^ 49. In Michigan, in bills
other than for discoveiy, the plaintiff may waive the defendant's oath to the
answer ; in which case the answer may be made without oath, and shall have
no other or greater force, as evidence, than the bill. Rev. Stat. 1846, ch.
90, ^ 31. In Alabama, the law is the same. Code of Alabama, (1852,)
^2877. It is also the same in Illinois. Bev. Stat. 1845, ch. 21, ^ 21. In
Carpenter v. Frov. Wash. Ins. Co. 4 How. S. C. B. 185, the rule stated in
the text was reviewed and commented on, by Woodbury, J. *< Where
an answer," he observed, ^ is responsive to a bill, and like this, denies a
fact unequivocally and under oath, it must in most cases be proved not only
by the testimony of one witness, so as to neutralize that denial and oath,vbut
by some additional evidence, in order to turn the scales for the plaintiff. Da-
niel 17. Mitchell, 1 Story's Bep. 188 ; Higbie v. Hopkins, 1 Wash. C. C. R
230 ; The Union Bank of Georgetown v. Geary, 5 Peters, 99. The addi-
tional evidence must be a second witness, or very strong circumstances*
1 Wash. C. C. B. 230 ; Hughes v. Blake, 1 Mason, C. C. B. 514 ; 3 Gill &
Johns. 425 ; 1 Faige, 239 ; 3 Wend. 532 ; 2 Johns. Ch. B. 92. Clark's
Ex'rs V, Van Biemsdyk, 9 Cranch, 163, says, * with pregnant circum-
stances.' (Neale v, IlagUiorp, 3 Bland's Ch. 567; 2 Gill & Johns. 208.)
But a part of the cases on this subject introduce some qualifications or limit-
ations to the general rule, which are urged as diminishing the quantity of
evidence necessary here. Thus, in 9 Cranch, 160, the grounds of the rule
are explained ; and it is thought proper there, that something should be
detracted from the weight given to an answer, if from the nature of things
the respondent could not know the truth of the matter sworn to. So, if the
answer do not deny the allegation, but only express ignorance of the fact, it
VOL. III. 24
278 LAW OF BVIDENCB. [PART VI.
that documentary evidence, however weighty, would not
alone suffice to counterpoise the answer. But it is not so.
The rule, when stated as above, applies particularly to the
case of an answer, opposed only by the testimony of one wit-
ness ; in which case the Court will neither make a decree,
nor send it to a trial at law.^ But if there is sufficient evi-
dence in the cause to outweigh the force of the answer, the
plaintiff may have a decree in his favor. This sufficient evi-
dence may consist of one witness, with additional and corro-
borative circumstances ; and these circumstances may some-
times be found in the answer itself ;2 or it may consist of
has been adjudged that one positive witness to it may suffice. 1 J. J. Mar-
shall, 1 78. So, if the answer be evasive or equivocal. 4 J. J. Marshall,
213; 1 Dana, 174 ; 4 Bibb, 358. Or if it do not in some way deny what
is alleged. Knickerbacker v. Harris, 1 Paige, 212. But if the answer, as
here, explicitly denies the material allegation, and the respondent, though
not personally conusant to all the particulars, swears to his disbelief in the
allegations, and assigns reasons for it, the complainant has in several instan-
ces been required to sustain his allegation by more than the testimony of one
witness. (3 Mason's C. C. R 294.) In Coale v. Chase, 1 Bland, 136, such
an answer and oath by an administrator was held to be sufficient to dissolve
an injunction for matters alleged against his testator. So is it sufficient for
that purpose if a corporation deny the allegation under seal, though without
oath, (Haight v. Morris Aqueduct, 4 Wash. C. C. R. 601) ; and an adminis-
trator denying it under oath, founded on his disbelief, from information com- .
municated to him, will throw the burden of proof on the plaintiflfbeyond the
testimony of one witness, though not so much beyond as if he swore to mat-
ters within his personal knowledge. 3 Bland's Ch. 667, note; I Gill &
Johns. 270 ; Pennington v. Gittings, 2 Gill & Johns. 208. But, what seems
to go further than is necessary for this case, it has been adjudged in Salmon
V. Clagett, 3 Bland, 141, 165, that the answer of a corporation, if called for
by a bill, and it is responsive to the call, though made by a * corporation
aggregate under its seal, without oath,' is competent evidence, and * cannot
be overturned by the testimony of one witness alone.' We do not go to this
extent, but see no reason why such an answer, by a corporation, under its
seal, and sworn to by the proper officer, with some means of knowledge on
the subject, should not generally impose an obligation on the complainant to
prove the fact by more than one witness. (5 Peters, 111 ; 4 Wash. C. C. R.
jBOl.") See 4 How. S. C. R. 217-219.
> Pember v. Mathers, 1 Bro. Ch. K. 52.
8 Pierson v. Catlin, 3 Verm. 272; Maury v, Lewis, 10 Yerg. 115. And
see Freeman v. Fairlie, 3 Mer. 42. For cases, illustrative of the nature and
PAUT VI.] SOURCES, MEANS AND INSTRUMENTS OF EVIDENCE. 279
circumstances alone, which, in the absence of a positive wit-
ness, may be sufficient to outweigh the answer even of a
defendant who answers on his own knowledge.^ Thus, on
amount of the corroborative testimony required, in addition to one witness,
to outweigh the answer, see Only v. Walker, 3 Atk. 407 ; Morphett v. Jones,
1 Swanst 172; Biddulph v. St John, 2 Sch. & Lefr. 532 ; Lansday t;. Lynch,
Id. 1 ; Pilling v. Armitage, 12 Yes. 78.
1 Long V. White, 5 J. J. Marsh. 228 ; Gould v, Williamson, 8 Shepl. 273;
Clark r. Van Riemsdyk, 9 Cranch, 153. In this case, the doctrine on this
subject was expounded by Marshall, C. J., in the following terms : — " The
general rule, that either two witnesses or one witness, with probable circum-
stances, will be required to outweigh an answer asserting a fact responsively
to a bill, is admitted. The reason upon which the rule stands, is this. The
plidntiff calls upon the defendant to answer an allegation he«makes, and
thereby admits the answer to be evidence. If it is testimony, it is equal to
the testimony of any other witness; and as the plaintiff cannot prevail if the
balance of proof be not in his favor, he must have circumstances in addition
to his single witness, in order to turn the balance. But certainly there may
be evidence arising from circumstances stronger than the testimony of any
single witness. The weight of an answer, must also, from the nature of evi-
dence, depend, in some degree, on the fact stated. If a defendant asserts a
fact which is not and cannot be within his own knowledge, the nature of his
testimony cannot be changed by the positiveness of his assertion. The
strength of his belief may have betrayed him into a mode of ezpresaon of
which he was not fully apprised. When he intended to utter only a strong
conviction of the existence of a particular &ct, .or what he deemed an infal-
lible deduction from facts which were known to him, he may assert that
belief or that deduction in terms which convey the idea of his knowing the
fact itself. Thus, when the executors say that John Innes Clark never gave
Benjamin Monro authority to take up money or to draw bills ; when they
assert that Riemsdyk, who was in Batavia, did not take this bill on the credit
of the owners of the Patterson, but on the sole credit of Benjamin Monro,
they assert facts which cannot be within their own knowledge. In the first
instance they speak from belief; in the last they swear to a deduction which
they make from the admitted fiict that Monro could show no written author^
ity. These traits in the character of testimony must be perceived by the
Court, and must be allowed their due weight, whether the evidence be given
in the form of an answer or a deposition. The respondents could found
their assertions only on belief; they ought so to have expressed themselves ;
and their having, perhaps incautiously, used terms indicating a knowledge of
what, in the nature of things, they could not know, cannot give to their an-
swer more effect than it would have been entided to, had they been more
280 LAW OP EVIDENCE. [PART VI.
the one hand, it has been held, that if the answer be positive,
denying the charge in the bill, it ought not to be overthrown
by evidence less positive, though it proceed from the month
of two witnesses ; ^ and that if the answer be improbable, yet
if it is not clearly false, it will be conclusive in favor of the
defendant, in the absence of any opposing proof.^ On the
other hand, it has been held, that the force of the answer to
a bill of discovery may be impeached by evidence, showing
directly that the defendant is not to be believed.^ So, if the fact
is denied upon belief only ; unless the grounds of belief are also
disclosed, and are deemed sufficient;* or, if the fact is denied
equivocally, indistinctly, or evasively, in the answer ; ^ or, if
the denial is mixed up with a recital of circumstances incon-
sistent with the truth of the denial ; ® or, if the answer is
made by a corporation, under its seal j and without oath ; '^
the testimony of one witness may be sufficient against it.
circumspect in their language." 9 Cranch, 160, 161. See, also, Watts o.
Hyde, 12 Jur. 661.
The rule requiring the testimony of two witnesses, or its full equivalent,
was borrowed from the rule of the Roman Civil Law, — Responsio unius non
omninb audicUur, But the strictness with which the rules of that law were
formerly observed in Courts of Equity has very much abated in modem
times, and the rule in question is now placed on the principle above stated
by Marshall, C. J. It hence appears that these Courts no longer recognize
the binding force of the Civil Law, even in proceedings which, in general,
are according to the course of that law ; but govern themselves by the prin-
ciples and rules of the Conmion Law, in all cases to which these principles
and rules can apply ; agreeably to the maxim — CRquitas sequUur legem.
1 Auditors. Johnson, 1 Hen. & Munf. 536.
2 Jackson v. Hart, 11 Wend. 343.
' Miller v, Talleson, 1 Harp. Ch. 145. And see Dunham v. Yates,
1 Hoffm. Ch. R. 185.
* Hughes V, Garner, 2 Y. & C. 328 ; Copeland v. Crane, 9 Pick. 73, 78 ;
Hunt V. Eousmanier, 3 Mason, 294.
5 Pliillips ». Richardson, 4 J. J. Marsh. 212. And see Brown v. Brown,
10 Yerg. 84 J Famam v. Brooks, 9 Pick. 212 ; ^lartin v. Greene, 10 Miss.
652.
6 Barraque v. Siter, 4 £ng. 545.
7 Van Wyck v. Norvell, 2 Humphr. 192 ; Lovett r. Steam Saw-mill Co.
6 Paige, 54 ; sed quccre, and see 4 How. S. C. R. 218, 219, semb, conlra.
PABT VI.] SOURCBS, MEANS AND INSTRUMENTS OF EVIDENCE. 281
But a positive answer, responsive to the bill, is not outweigh-
ed by the proof of facts which may be reconciled with the
truth of the statements or denials in the answer ; ^ nor by the
proof of the mere admissions of the defendant, contradict ory
to the answer, unless they appear to have been deliberately
and considerately made.^ Very little reliance, it is said,
ought to be placed upon loose conversations or admissions of
the party, to overbalance his solemn denial, on oath, in his
answer.*
§ 290. The effect thus given to the answer is limited to
those parts of it which are strictly responsive to the bill ; it
being only where the plaintiff has directly appealed to the
conscience of the defendant, and demanded of him the dis-
closure of a particular matter of fact, that he is bound to
receive the reply for truth, until he can disprove it If, there-
fore, the defendant, in addition to his answer to the matter
concerning which he is interrogated by the plaintiff, sets up
other facts by way of defence, his answer is not evidence for
him^ in proof of such new matter but it must be proved,
aliunde^ as an independent allegation.^ We have already
^ Branch Bank v. Marshall, 4 Ala. 60.
s Hope 17. Evans, 1 Sm. & M. 195 ; Petty v. Taylor, 5 Dana, 598. It hai
been held that the testimony of two witnesses to two distinct conversations,
is not sufficient Love v. Braxton, 5 Call, 587.
3 Flagg V, Mann, 2 Suom. 486, 553, 554, per Story. J. ; Hine v. Dodd,
2 Atk. 275.
4 2 Dan. Ch. Fr. 983, 984, and notes by Perkins ; 2 Story, £q. Jar.
^ 1529 ; 2 Story, Eq. PL ^ 849 a. ; Hart v. Ten £yck, 2 Johns. Ch. 62. In
this case, the rule was thus stated and explained by the learned Chan-
cellor Kent : — "It appears to me, that there is a clear distinction, as
to proof, between the answer of the defendant and his examination
as a witness. At any rate, the question how far the matter set up in the
answer can avail the defendant, without proof, is decidedly and ration-
ally settled. The rule is fully explained in a case before Lord Ch. Cowper,
in 1 707, reported in Gilbert's Law of Evidence, p. 45. It was the case of a
bill by creditors against an executor, for an account of the personal estate.
The executor stated in his answer that the testator left £1,100 in his hands
and that, afterwards, on a settlement with the testator, he gave his bond for
24*
282 LAW OP EVIDENCB. [PART VI.
seen,^ that the rule of the Common Law on this subject is
different from the rule in Equity ; it being required in Courts
of Law, when the declaration or conversation of a party is to
be proved against him, the whole of what was said at the
£1,000, and the other £100 was given him by the testator as a gifl for his
care and trouble. There was no other evidence in the case of the £1,100
having been deposited with the executor. The answer was put in issue, and
it was urged that the defendant having charged himself, and no testimony
appearing, he ought to find credit where he swore in his own discharge.
But it was resolved by the Court, that when an answer was put in issue
what was confessed and admitted by i7, need not be proved ; but that the de-
fendant must make out, by proof, what was insisted on by way of avoidance.
There, was, however, this distinction to be observed, that where the defend-
ant admitted a fact, and insisted on a distinct fact, by way of avoidance, he
must prove it, for he may have admitted the fact under an apprehension,
that it could be proved, and the admission ought not to profit him, so far as
to pass for truth, whatever he says in avoidance. But if the admission
and avoidance had consisted of one single fact, a^ if he had said the testator
had given him £100, the whole must be allowed, unless disproved. This case
is cit«d by Peake, (Ev. 36, in notis,) to show a distinction, on this subject,
between the rule at law and equity, and that in Chancery one part of an
answer may be read against the party without reading the otiher ; and that
the plaintiff may select a particular admission, and put the defendant to
prove other facts. He preferred, as he said, the rule at law, that if part of
an answer is read, it makes the whole answer evidence ; and even Lord
Hardwickc, in one of the cases I have cited, thought the rule of law was to
be preferred, provided the Courts of law would not require equal credit to
be given to every part of the answer. On the above doctrine, in tiie case
from Gilbert, I have to remark, in the first place, that it is undoubtedly the
long and well-settied rule in Chancery, whatever may be thought of its plto-
priety. Lord H. says, in the case of Talbot v, Rutiedge, that if a man ad-
mits, by his answer, that he received several sums of money at particular
times, and states that he paid away those sums at other times in diachaige,
he must prove his discharge, otherwise it would be to allow a man to swear
for himself, and to be his own witness. But, in the next place, I am satisfied
that the rule is perfectly just, and that a contrary doctine would be perni-
cious, and render it absolutely dangerous to employ the jurisdiction of this
Court, inasmuch as it would enable the defendant to defeat the plaintiff's
just demands, by the testimony of his own oath, setting up a discharge or
matter in avoidance." 2 Johns. Ch. 88 - 90. See also Wasson v. Gould,
3 Blackf. 18.
1 Ante, Vol. 1, ^ 201 ; Supra, § 281.
PART VI.] SOURCES, MEANS AND INSTRUMENTS OF EVIDENCE. 283
same time and in relation to the same subject, should be taken
together. But this difference in the rules arises from the dif-
ference in principle between the two cases. For in Courts
of Law, the evidence is introduced collaterally, as evidence,
and not as a pleading ; and therefore it is reasonable that the
whole should be weighed together ; and the rule in Chan-
cery is the same, when an answer or other declaration of the
party is introduced collaterally, and merely by way of evi-
dence. So, when the bill is for discovery only, and the an-
swer is read for that purpose, the rule still is to read the
whole. But when, upon the hearing of a bill for relief, pas-
sages are read from the answer, which is put in issue by a
replication, they are read not as evidence^ in the technical
sense, but merely as a pleading to show what the defendant
has admiUedy and which therefore needs not to be proved ;
and hence the plaintiff is not required to read more than the
admissions.^
§ 291. The distinction between a bill for discovery and a
bill for relief, in the application of the rule above stated, is
more strikingly apparent when a bill for discovery, after a dis-
covery is obtained, is by amendment converted into a bill for
relief The defendant, in such case, being permitted to put
in a new answer, the former is considered as belonging to a
former suit, and therefore is permitted to be read as an an-
swer to a bill of discovery,"as evidence ; and not as part of
the defence or admission, upon which the bill proceeds.^
1 2 Johns. Ch. 90-94 ; 2 Poth. Obi. by Evans, 187, 138, (Am. ed.) ; Or-
mond V. Hutchinson, 13 Yes. 51, arg.y approved by Ld. Cb. Erskine, Id. 53 ;
Thompson v, Lambe, 7 Yes. 587 ; Boardman v, Jackson, 2 Ball & Beat
382 ; Bcckwith v. Butler, 1 Wash. 224 ; Bush ti. Livingston, 2 Caines, Cas.
66 ; Green v. Hart, 1 Johns. 580, 590. If a judgment or decree in another
cause is properly stated in the bill and admitted in the answer, the record of
it is not requisite to be filed as an exhibit, but will be deemed sufficiently
proved by the admission in the answer. Lyman v. Little, 15 Yerm. 576.
2 Butterworth v. Bailey, 15 Yes. 358, 363. And see Lousada v. Templer,
2 Russ. 561 ; 1 Story Eq. Jur. ^ 64 I*, 70 - 78.
284 LAW OF BVIDBNCB, [PART VI.
§ 292. We are next to consider admissions made by express
AGREEMENT OF THE PARTIES, itt Order to dispense with other
proof. These ordinarily ought to be in writing, and signed
by each party or his solicitor ; the signature of the latter
being deemed sufficient, as the Court will presume that he
was duly authorized for that purpose.^ But it is not indis-
pensably necessary that the agreement be written ; in some
cases, as for example, the waiver of proof by subscribing wit-
nesses, a parol agreement, either of the party, or of the attor-
ney, has been held sufficient.^ It must, however, be a dis-
tinct agreement to admit the instrument at the trial, dispens-
ing with the ordinary proof of its execution ; for what the
attorney said in the course of conversation is not evidence in
the cause.^ The authority of the attorney to act as such will
be sufficiently proved, if his name appears of record.*
§ 293. Admissions of this sort, however, are not to be ex-
tended by implication^ beyond what is expressed in the agree-
ment. Thus, in an action of covenant, where the defendant's
attorney signed an admission in these words, " I admit the
due execution of the articles of agreement dated the 23d day
of February, 1782, mentioned in the declaration in this
cause," it was held that this only dispensed with the attend-
ance of the subscribing witness, and did not preclude the
defendant from showing a variance between the instrument
produced in evidence and that described in the declaration ;
though, had the language been " ew mentioned in the decla-
ration," its effect might have been different.^ So, where it
^ Gainsford v. Grammar, 2 Campb. 9 ; 2 Dan. Ch. Pr. 988 ; Gresley on
Eq. Evid. 48 ; Young v. Wright, 1 Campb. 139. In some Courts, the rules
require that these agreements should always be in writing, or be reduced to
the form of an order by consent. See Suydam v. Dequindre, Walk. Ch. 28.
(Michigan) ; Brooks v. Mead, Id. 889.
3 Laing v. Raine, 2 B. & P. 85 ; Marshall v. Cliff, 4 Campb. 138.
3 Ibid. ; Young v, Wright, supra. Ante, Vol. 1, ^ 186.
4 Ibid.
^ Goldie V. Shuttleworth, 1 Campb. 70.
PAET VI.] SOURCES, MEANS AND INSTRUMENTS OF EVIDENCE. 285
was admitted that a certain exhibit was a notice, and that a
certain other exhibit was a true copy. of the lease referred to
in the notice ; it was held, that the admission of the potice
was not evidence of the lease, and that the admission as to
the copy of the lease only substituted the copy for the origi-
nal, but did not place the copy in a better situation than the
original would have been if it were produced but not
proved.^
§ 294. Lastly, it is to be observed, that while the Courts
will generally encourage the practice of admissions tending
to the saving of time and expense, and to promote the ends
of justice, they will not sanction any agreement for an admis-
sion^ by which any of the known principles of law are evaded.
Thus, where a husband was willing that his wife should be
examined as a witness, in an action against him for mali-
cious prosecution. Lord Hardwicke refused to permit it, be-
cause it was against the policy of the law.^ Admissions by
infants? and admissions evasive of the stamp-laws,* have
been disallowed, on the same general principle.
3. DOCUMENTS.
§ 295. In respect to documents^ the first point to be consi-
dered is their production ; which, on motion, is ordered by
the Court, either for their safe custody and preservation, pen-
dente lite, or for discovery and use for the purposes of the
1 Mounsey t;. Bumham, 1 Hare, 15. And see Fitzgerald v. Flaherty,
1 Moll. 350.
3 2 Dan. Gh. Pr. 988 ; Barker v. Dixie, Rep. temp. Hardw. 264. And
see Owen v. Thomas, 3 My. & E. 357. Such seems to be the sound rule of
law, though it has in one or two instances been broken in upon. See ante,
Vol. 1, J 340.
3 See suprGf ^ 279, 280 ; Wilkinson v. Beal, 4 Mad. 408 ; Townsend v.
Ives, 1 Wils. 216 ; Holden v. Hearn, 1 Beav. 445 ; Morrison v, Arnold,
19 Ves. 671.
4 Owen r. Thomas, 3 My. & K. 353 - 357 ; 2 Dan. Ch. Pr. 989.
286 LAW OP EVIDENCE. [PART VI.
suit.^ Where the production is sought by the bill, and the
discovery is not resisted, the documents are described either
in the answer, or in schedules annexed to it, to which refer-
ence is made. If the documents are not sufficiently described
in the answer, or the possession of them by the defendant is
not admitted with sufficient directness, the answer will be
open to exceptions ; 2 for the possession must be shown by
the defendant's admission in the answer, and cannot be esta-
blished by affidavit, unless, perhaps, where the plaintiff's
right to the production is in question, and the documents are
neither admitted nor denied in the answer ; in which case
the plaintiff has been permitted to verify them by affidavit^
§ 296. If the documents are not in the defendant's actual
custody, but are in his power,^ as, if they are in the hands of
his solicitor;^ or, of his agent, whether at home or in a
foreign country ; ^ or if they are about to come to his pos-
session by arrival from abroad i"^ the Court will order him to
produce them, if no cause appear to the contrary ; and will
allow a reasonable time for that purpose, according to the
circumstances.® If they are in the joint possession of the
defendant and others, not parties to the suit, but equally en-
titled, with him, to their custody; this will excuse the defend-
ant from producing them, but he will still be required to
1 See on this subject, S Dan. Ch. Pr. ch. 41 ; Wigram on Discovery, pL
284. et seq. ; Story, Eq. PL ^ 858 - 860, a.
9 Ibid. ; Atkyns v, Wryght, 14 Ves. 211, 213 ; 3 Dan. Ch. Pr. 2045.
3 Bamett^ v. Noble, 1 Jac. & TV. 227 ; Addis v, Campbell, 1 Beav. 261 ;
Lopez V. Deacon, 6 Beav. 254. And see Watson v. Benwick, 4 Johns. Ch.
381, i?here the history and reasons of the rule are stated. See, also, Story r.
Lenox, 1 My. & C. 534.
4 Taylor v. Rundell, 1 Cr. & Phil. 104; 3 Dan. Ch. Pr, 2041, 2042.
6 Ibid.
6 Ibid. ; Eager v, Wiswall, 2 Paige, 369, 371 ; Freeman v. Fiurlie, SMer.
44 ; Murray v. Walter, 1 Cr. & Ph. 125 ; Morris v. Swaby, 2 Beav. 600.
7 Farquharson v. Balfour, Turn. & Russ. 190, 206.
8 Ibid. ; Eager v. Wiswall, 2 Paige, 371 ; Taylor v. Rundell, 1 Phill. C. 0.
225 ; 11 Sim. 391.
PART VI.] SOURCES, MEANS AND INSTRUMENTS OF EVIDENCE. 287
inspect them and answer as to their contents;^ and if
they are in the hands of a common agent of the defendant
and others, the plaintiff may have an order on such agent to
permit him to inspect them; on the ground that the Court
has a right to give the plaintiff all the access to the docu-
ments which the defendant would be entitled to claim.^
Where the documents are in the hands of the defendant's
agent or solicitor who wrongfully retains them, so that they
cannot be controlled, he may be compelled, by being made a
party to the cause.^
§ 297. To entitle the plaintiff to a production of docu-
ments, a merely general reference to them in the answer is
not sufficient ; they must be described with reasonable cer-
taintyy either in the answer or in the schedule annexed to it,
so as to be considered, by the reference, as incorporated in
the answer, and to enable the Court to make an order for
their production, and afterwards to determine whether its
order has been precisely and duly obeyed.*
§ 298. It is further necessary that the plaintiff, in order to
be entitled to the production of documents, should either
have a right to the documents themselves, dr a sufficient interest
in inspecting them. And this right must appear in his bill,
and cannot, regularly, be established by collateral proof.
Thus, where, after an answer, admitting the possession of
certain documents relating to the matters or some of them in
the bill, the plaintiff amended the bill by striking out a part
of the matters to which the documents related, and then
moved for a production of them upon the answer ; it was
refused, because his right to it was no longer apparent upon
1 3 Dan. Ch. Pr. 2042, 2043 ; Taylor ». Rundell, 1 Cr. & Phill. Ill ;
Murray w. Walter, Id. 114.
8 Walbupn v. Ingilby, 1 My. & K. 61.
3 Ibid. ; Fenwick v. Read, 1 Mer. 125.
4 Atkyns r. Wryght, 14 Ves. 211 ; Watson w. Benwick, 4 Johns. Ch.
381.
288 LAW OF EVIDENCE. [PART VI.
the bill.^ If the defendant admits that they are relevant to
the plaintiff's case, this will throw on the defendant the bur-
den of excusing himself from producing them.^ But the
plaintiff's right to the production must relate to the purposes
of the suit ; and to the relief prayed for ; if the object be col-
lateral to the suit ; as, if a copy of a certain book be demand-
ed, for the purposes of his trade, this is not such an interest
as will entitle him to the production.^ So, if the production
of a document be sought only for the ulterior purpose of ena-
bling the plaintiff to carry into execution the decree which
he may obtain in the cause, and not for the purpose of prov-
ing his right to a decree, an inspection will not be granted
before the hearing.* The sufficiency of the plaintiff's interest
1 Haverficld r. Pyman, 2 Phill. C. C. 202.
9 Smith V. D. of Beaufort, 1 Hare, 519 ; Tyler u. Drayton, 2 Sim. & Stu.
310 ; 3 Dan. Ch. Pr. 2045-2048.
3 3 Dan. Ch. Pr. 2049 ; Lingen v. Simpson, 6 Madd. 290.
* Ibid. ; Wigram on Discovery, PI. 295. The observations of this learned
Vice Chancellor on this point, deserve particular attention, and are as fol-
lows : — ** Supposing the answer to contain the requisite admisaon of posses-
sion by the defendant, and a sufficient description of the documents, the plain-
tiff must next show from the answer that he has a right to see them. This
is commonly expressed by saying — that the plaintiff must show that he has
an interest in the documents, the production of which he seeks. There can
be no objection to this mode of expressing the rule, provided the sense in
which the word interest is used be acccurately defined. But the want of such
definition, has introduced some confusion in the cases under consideration.
The word interest must here be understood with reference to the subject-mat-
ter to which it is applied. Now, the purpose for which discovery is given is
(simply and exclusively) to aid the plaintiff on the trial of an issue between
himself and the defendant A discovery beyond or uncalled for by this par-
ticular purpose, is not within the reason of the rule which entitles a plaintiff
to discovery. The word interest^ therefore, must in these cases be under^
stood to mean, an interest in the production of a document for the purpose
of the trial about to take place. According to this definition of the word
interest — if the object of the suit or action be the recovery of an estate —
the plaintiff in a bill in aid of proceedings to recover that estate, will, prima
facie, be entitled, before the hearing of the cause, to the production of every
document the contents of which will be evidence at that hearing of his right
to the estate. But the same reason will not necessarily extend to entitle the
plaintiff, before the hearing of the cause, to a production of the title deeds
PART VI.] SOURCES, MEANS AND INSTRUMENTS OF BVIDBNCE. 289
in the documents, of which a discovery and production are
required, depends on their maieriality to his case; for the
right of the plaintiff is limited, in the well-considered lan-
guage of Vice-Chancellor Wigram, to "a discovery upon
oath as to all matters of fact which, being well pleaded in
the bill, are material to the plaintiff's case about to come on
for trial, and which the defendant does not by his form of
pleading admit" ^ But an exception to this limitation is
admitted, where the defendant, in stating his own tUle^ states
a document shortly or partially, and for the sake of greater
caution refers to the document, in order to show that its effect
has been accurately stated ; in which case, though the docu-
ment be not in itself material to the plaintiff's title, the Court
will order its production as pari of the answer?
appertaining to the estate in question. He may, indeed, and (if his bill be
properly framed) he will be entitled to have tiiese title deeds described in '
the answer, and also to a discovery whether they are in the defendant's pos-
session ; becaose, without proof of such matters, (and whatever the plaintiff
must prove the defendant must prima facie answer) a perfect decree could
not be made in the plaintiff's &vor. The same observations will apply to a
case, in which the object of the suit is to recover the possession of docu-
ments. The plaintiff is entitled to know what the documents are, and who
holds them. But there is no reason why the plaintiff should, in cases of the
description here noticed, inspect the documents before the hearing of the
cause. Unless the meaning of the word ' interest ' be limited in the way
pointed out, it is obvious that the effect of a simple claim (perhaps without
a shadow of interest) would be to open every muniment room in the king-
dom, and every merchant's accounts, and every man's private papers to the
inspection of the merely curious."
A Wigram on Discovery, pL 26, p. 15. As to the nature of the material-
ity, see Id. pi. 224, et seq.
s Hardman v. Ellames, 2 My. & K. 782. Adams v. Fisher, 3 My. & C.
548 ; Eger v. Wiswall, 2 Paige, 371. The soundness of the exception stated in
the text, has been strongly questioned by Vice-Chancellor Wigram, (On Dis^
covery, pi. 385-424, 2d ed.) to which the student is referred ; the further
consideration of the point being foreign to the plan of this work. See also,
Story, Eq. PI. ^ 859 ; 3 D^n. Ch. Pr. 2056 - 2060 ; Latimer v. Neate, 11 Bligh,
149 ; Phillips v. Evans, 2 Y. & C. 647. It may, however, be here added,
that the English rule, that the plaintiff, in a bill of discover}-, shall only have
a discovery of what is necessary to his own title, and shall not pry into
the tide of the defendant, is deemed inconsistent with the course of
VOL. m. 25
290 LAW OF BVIDBNCB. [PART VI.
§ 299. If the documents and papers, of which production
is required, are admitted to be in the defendant's possession,
he will be required to produce them, though they are not refer-
red to in the answer, and though they relate to the defend-
ant's title, provided they also relate to the plaintiff's title ;
but not otherwise.^ If they are referred to^ but are not ad-
mitted to be rn his possession, the Court canndt order their
production, unless it appears that they are in the hands of
some person over whom the defendant has control.* And if
the defendant admits that he has the document in question,
and offers to produce it if the Court should require him so to
doj this is merely a submission to the discretion of the Court*
If they have already been produced before a commissioner, in
order that the plaintiff may prove them as exhibits, the de-
fendant is bound to have them in Court at the hearing, though
there has been no direct order for their production.*
§ 300. The discovery and production of documents and
papers by the defendant may be successfully resisted, by
showing that they are privilegedy either by professional con-
fidence, or by their exclusively private character ; or, that the
discovery and production would tend to involve him in a
criminal charge ; or subject him to a penalty or punishment,
or to ecclesiastical censures, or to a forfeiture of his estate.
All these classes of exemptions having been fully treated in
a preceding volume, any farther discussion of them in this
remedial justice as administered in Massachusetts^ which pennits a fall inquiry
as to all and any facts that may impeach the right of property in the party
of whom the inquiry is made. Adams p. Porter, 1 Cush. 170. The like
principle, it is conceived, will apply in the jurisprudence of Maine, and such
other States as pursue similar forms of remedy.
^ Hardman v. EUames, 2 My. & K. 732 ; Bligh v. Berson, 7 Price, 205 ;
Firkins v, Lowe, IS Price, 108 ; Farrer v. Hutchinson, 3 Y. & C. 692 ; Bur-
ton V. Neville, 2 Cox, 242.
8 Hardman t;. EUames, supra ; Darwin t;. Clarke, 8 Yes. 158. And see
Story, Eq. PI. § 859 ; Supra, ^ 296.
3 Anon. 14 Yes. 213, 214, per Ld. Eldon.
4 Wheat V. Graham, 7 Sim. 61.
PART VI.] SOUBOSS, MEANS AND INSTRUMBKTS OF EVIDENCE. 291
place is saperfiuous.^ Bat it should be observed, that, regu-
larly, the grounds of exemption on which the discovery is
resisted ought to appear in the answer ; though sometimes
an affidavit may be filed, for the purpose of more fully show-
ing that the documents in question support exclusively the
title of the defendant, and relate solely to his defence, or
are otherwise privileged ; or that they are not in his custody
or power.2
§ 301. The order for production of documents, in American
practice, usually directs that they be deposited with the Clerk
of the Court But in special cases, the Court will order that
they be produced at the defendant's place of business, or
at the office of his solicitor, or at the master's office, or else-
where, according to the circumstances. And where books
are to be produced, the defendant will have leave to seal up
and conceal all such parts of them as, according to his affida-
vit previously made and filed, do not relate to the matters in
question.^
§ 302. We have spoken of the production of documents
by the defendant, because, by the regular course of practice
in Chancery, it is only by means of a bill, and therefore only
by a plaintiff, that a discovery can be obtained ; and, there-
fore, if the defendant would obtain the production of docu-
ments firom the plaintiff, he must himself become a plaintiff,
hyfilififf a cross-bill; in which case all the preceding rules
will apply in his favor, against the plaintiff* in the original
bill.^ But, ordinarily, no answer to the cross-bill can be ob-
tained, until the defendant has filed a full answer to the ori-
1 See ante, Vol. 1, ^ 237-354, 451-458.
s Llewellyn o.Badeley, 1 Hare, 527. And see Morrice v. Swaby, 2 Beay.
500 ; S Dan. Ch. Pr. 2066.
3 See 1 Hoffm. Ch. Pr. 306-319, where the law on the subject of the pro-
duction of documents, with the cases, will be found fully stated. The -viola-
tion of the seals, by the adverse party, is punishable as a contempt Dias v.
Merle, 3 Paige, 494. And see 3 Dan. Ch. Pr. 2064 - 3066 ; Napier v. Sta-
ples, 3 MolL 270 ; Titus v. Cortelyou, 1 Barb. 444.
< See Penfold v. Nunn, 5 Sim. 409, that a defendant cannot obtain nich
292 LAW OF EVIDBNCB, [PART VL
ginal bill, and complied with the order for the prodaction of
documents on bis part."^
§ 303. This general rale, that when a defendant would
obtain the discovery and production of documents from the
plaintiff, he can obtain it only by a cross-bill^ is dispensed
with in a few cases in the English practice, constituting ex-
ceptions to the rule. Formerly, when a document in the
plaintiff's possession, mentioned in the bill, was neces-
sary to the defendant, for the making of a full answer, the
Court has sometimes ordered the plaintiff to give him a
copy of it ; and at other times the Court has stayed pro-
ceedings against the defendant, for not putting in his an-
swer, until the plaintiff would give him an inspection of
the documents in question ; especially if both parties were
equally entitled to the possession ; as, for example, in the case
of partnership books.^ And in a more recent and celebrated
case, where the plaintiff, in a bill against executors, stated
that two promissory notes, of the same date, had been given
by the testator, the one in English and the other in French
currency, but of the same amount and for securing the pay-
ment of the one single sum of ,£15,000, mentioned in both
notes ; one of the executors made affidavit that he had in-
spected the former of the two notes and had observed appear-
ances on it tending to impeach its authenticity ; and that he
was informed and believed that the latter note had been pro-
duced for payment in Germany, and that an inspection of it
was necessary, before he could make a full answer to the
case stated in the bill ; and moved that he might have time
production firom the plaintiff, merely by motion, though he makes oath that
an inspection is necessary to enable him to answer the bill.
1 8 Dan. Ch. Pr. 2069 ; Pr. of Wales v. E. of Liverpool, 1 Swanst 128,
124. This rule is expressly adopted as a rule of practice, in cases in Equity,
in the national Courts of the United States, and in the Courts of some <^
the several States. See Rules U. S. Courts in Equity Cases, Reg. 72 ; Maa-
sachusettSy Rules in Chancery, Reg. 18; Illinois,. Bj&t. Stat 1845, ch. 21,
^ 29 ; Florida, Thompson's Dig. p. 459, ^11.
9 8 Dan. Ch. Pr. 2070, 2071 ; 1 Swanst 124, 125 ; Potter v. Potter, 8 Atk.
719 ; Pickering v. Rigby, 18 Yes. 484.
PART VI.] SOURCES, MEANS AND INSTRUMENTS OP BVIDBNCE. 293
to make answer after such inspection should be given ; it \^as
held by Lord Eldon that this was sufficient ground to enti-
tle the defendants to a production of the instrument before
answer; and accordingly it was ordered, that the plaintiff
be at liberty to come at any time in reply to the affidavit,
and that in the mean time the defendants should not be call-
ed on to answer, until a fortnight after the instrument had
been produced.^ But in this country, in ordinary cases not
regulated by statute, the plaintiff cannot be compelled, on
motion, to give the defendant an inspection of his books and
documents, in order to enable the defendant to answer the
bill and make his defence ; but if the plaintiff, on request,
refuses to permit such inspection of books and documents,
he will not be allowed to except to the answer for insuffi-
ciency in not stating their contents.^ In cases of partner-
ship, however, where the controversy is between the partners or
their representatives, the party having possession of the part-
nership books and papers will be ordered, on motion, and in
any stage of the suit, to place them in the hands of an offi-
cer of the Court, for the inspection of the other party, and
that he may take copies if necessary.^ And if documents
are impeached by either party as false and fraudulent, they
will be ordered to be brought into Court for inspection.^
§ 304. But in the Federal Courts of the United States, the
necessity for resorting to the Equity side, by a bill for the dis-
covery of documents in aid of the jurisdiction at Law, is
1 The Princess of Wales v. E. of Liverpool, 1 Swanst 114, 115, 125- 127.
The same rule was administered in Jones v. Lewis, 2 Sim. & Stu. 242 ;
and though the order was discharged by Ld. Eldon, on appeal, 4 Sim. 824,
yet the ground of the discharge does not appear, and it is hardly probable
that he intended to reverse his previous decision in the case above men-
tioned. The same rule was also adopted in its principle by Ld. Langdale,
M. R., in Stephen v. Morris, 1 Beav. 175. But its soundness, as a general
rule was questioned by the Yice-Chancellor of England, in Penfold v, Nunn,
5 Sim. 410, and again in Milligan t;. Mitchell, 6 Sim. 186.
2 Kelly V. Eckford, 5 Paige, 548.
3 Ibid.
4 Comstock 17. Apthorpe, 1 Hopk. Ch. K. 143 ; 8 Cowen, 386, S. C,
25*
394 LAW OV EYIDENCB. [PABT TI.
entirely obviated by the statute,^ which empowers all the
Courts of the United States, in the trial of actions at Law,
on motion, and due notice thereof being given, to require the
parties to produce books or writings in their possession or
power, which contain evidence pertinent to the issue, in cases
and v/nder circumstances where they might be compelled to pro-
duce the same by the ordinary rules of proceeding in Chancery.
And if a plaintiff shall fail to comply with such order to pro-
duce books or writings, it is made lawful for the respective
Courts, on motion, to give the like judgment for the defend-
ant as in cases of nonsuit ; and if the defendant shall fail to
comply with such order, judgment may be entered against
him by default. Under this statute it is requisite, whenever
a judgment by nonsuit or default is intended to be claimed,
that notice be given to the adverse party to produce the pa-
pers in question, describing them with sufficient particularity,
and stating that on his failure to produce them it is intended
to move for judgment against him. This judgment is ob-
tained, after a rule nisi for the production of the papers,
granted on motion, supported by the affidavit of the party
applying.^ If the adverse party makes oath that he has not
the papers, this may be met by the oath of two witnesses, or
of one with other corroborating and preponderating evi-
dence.^
1 Stat. U. S. 1789, ch. 20, ^ 15 ; Geyger v. Geyger, 2 Dall. 332.
9 Hylton V. Brown, 1 Wash. C. C. R. 298, 800 ; Bas v. Steele, 8 WasL
381, 886; Dunham r. Biley, 4 Wash. 126; United States v. Pins, GUp.
306.
3 Hylton V. Brown, supra : Bas v. Steele, supra. This statnte is held not
to apply to proceedings in rem ; because a judgment as by default cannot be
rendered against a defendant^ in proceedings of that kind ; and because
Chancery will not compel a party to produce evidence which would subject
him to a forfeiture. United States v. Pins, Gilp. 306.
In most of the several States, also, the necessity for a bill of discovery of
documents is either entirely done away, or in a great degree obviated, by sta-
tutory provisions and Rules of Practice. In all the States, it is believed,
office-copies of deeds and other documents required by law to be registered,
may be read in evidence by any party, other than the grantee or obligee ;
and in many of the States, deeds and other docimients, acknowledged or
PART VI.] SOURCES, MEANS AND INSTRUMENTS OF EVIDENCE. 295
§ 305. If documents, the prod action of which is desired,
are in the possession of one who is not a party to the suit^ he
proved before the proper magistrate or Court, in the mode provided by law,
are admissible as prima facie evidence. See ante, Vol. 1, ^ 91, 671, n., 573,
and note. In some of these States, and in others, also, summary modes are
established for the discovery and production of books, papers, and documents,
whenever they are material to the support or defence of any civil action or
suit. Thus, by the Revised Statutes of New York, the Supreme Court is
empowered, in such cases as shall be deemed proper, to compel any party to
a suit pending therein, to produce and discover books, papers and docu-
ments in his possession or power, relating to the merits of any such suit, or
of any defence therein. 2 Rev. Stat. p. 262, tit. 3, pt. 3, ch. 1, ^ 80. To
entitle a party to any such discovery, he is required to present a petition,
verified by oath, to the Court, or any Justice thereof, or to any Circuit
Judge in vacation, upon which an order may be granted for the discovery
sought, or that the party against whom the discovery is sought should show
cause why it should not be granted. Id. ^ 32. Every such order may be
vacated by the Court or magistrate by whom it was granted, upon satisfac-
tory evidence that it ought not to have been granted ; or, upon the disco-
very sought having l)een made ; or, upon the party, required to make the
discovery, denying on oath the possession or control of the books, papers or
documents ordered to be produced. Id. ^ 83. The books, papers and docu-
ments, thus produced, are allowed the same effect, when used by the party
requiring them, as if produced upon notice. Id. ^ 36.
By the Code of Practice, as amended in 1849, the Court before which an
action is pending, or any Judge or Justice thereof, may, in their discretion,
and upon due notice, order either party to give to the other, within a specified
time, an inspection and copy, or permission to take a copy, of any books,
papers and documents in his possession or under his control, containing evi-
dence relating to the merits of the action, or the defence therein. If com-
pliance with die order be refused, the Court, on motion, may exclude the
paper from being given in evidence, or punish the party refusing, or both.
N. York Code of Practice, § 888, [342.]
These two provisions, of the Revised Statutes and of the Code of Practice,
have been deemed to stand well together, the former not being repealed by
force of the latter. Follett v. Weed, 1 Code Rep. 65 ; Dole v. Fellows,
1 Code Rep. 146, N. S. And see Brown v. Babcock, 1 Code Rep. 66 ;
Stanton v. Del. Mut Ins. Co. 2 Sandf. S. C. R. 662 ; Moore v. Pentz, Id.
664. And the power thus vested in the Court, has been held to extend to
aU cases where one party desires to ascertain what documentary evidence
his adversary holds, upon which he is relying to sustain himself upon the
trial ; as well as to cases where evidence is sought in support of his own title.
Powers t7. Elemendorf, 2 Code Rep. 44.
By another provision of the same Code, no action to obtain discovery nn-
296 LAW OP EVIDENCB. [PART VI.
may be compelled by a subpasna duces tecum^ to prodace
them ; and if the subpasna is not obeyed, he will be punished
for contempt, on proof by affidavit that the documents are in
his custody.^
der oath, in aid of the prosecution or defence of another action, can be
allowed, nor can any examination of a party be had, on behalf of the adverse
party, except in the manner afterwards prescribed in the same Code;
namely, as a witness, and in the manner of any other witness. !N. York
Code of Practice, ^ 389. This section is held merely to abolish the Chan-
cery bill for discovery ; and not to aiect the mode, by petition, prescribed
in the Statutes or Code. FoUett o. Weed, supra.
Regulations, substantially to the same effect, in regard to the production
of documents, &c., may be found in the statutes of Iouxl^ Code of 1851 ,
^ 2423-2425 ; Arkansas^ Rev. Stat 1837, ch. 23, ^ 50- 53 ; Mmouri^ Rev.
Stat 1845, ch. 136, art 4, ^7-19; Id. ch. 137, art 2, ^ 31-34; JUir
noiSy Rev. Stat. 1845, ch. 83, ^ 12 ; Louisiana^ Code of Practice, art. 140-
143, 473-475, 917-919, 1037; and Indiana, Rev. Stat 1852, Pt 2,
ch. 1, ^ 304 - 306. See, also, Cdifomia, Rev. Stat 1850, ch. 142, ^ 294,
295 ; Georgia^ Rev. Stat 1845, p. 529, ch. 19, art 7, ^ 146 ; F/oncfa, Thomp-
son's Dig. p. 459, ^11.
In Virginia, it is at the option of a party either to file a bill in Chancery
for the discovery and production of books and writings, or to apply to a
commissioner of the Court, by petition and affidavit, alleging his belief of
the possession of such books and writings by the other party, and their mate-
riality as evidence for him, and describing them with reasonable certainty ;
in which case the Court, after notice to the adverse party, being satisfied of
the truth of the allegations, and that the petitioner has no other means of
proving the contents of the books and papers, will compel their production ;
unless the adverse party shall answer upon oath that they are not under his
control. Rev. Stat. 1849, ch. 176, ^ 39, 40.
In Maine, the party requiring the production of books, papers or docu-
ments in the possession of the opposite party, may file a rule with the clerk,
and give notice of it to the other party, stating the fact, the ground of his
claim of discovery and production, its necessity, and the time and place ; and
if the parties do not dispose of the subject by mutual arrangement, copies of
the rule and proceedings may be transmitted to one of the Judges, whose
decisions and dlrecUons will be binding on the parties. Maine, Sup. Jud.
Court Rules in Chancery, Reg. 1 7. In Maryland, the Chancellor is empow-
ered, by statute, on application of either party on oath, to order and decree
the production of any books, writings or papers in the possession of the other
party, containing evidence relative to the matters in dispute between them.
Stat 1798, ch. 84, § 2, (Dorsey's ed.)
1 See ante. Vol. 1, ^ 558, 559.
PART VI.] SOURCES, MEAKS AND INSTRUMENTS OP BVIDENCB. 297
§ 306. In regard to documents produced on notice^ it has
already been stated as the rule at Law, that ordinarily, the
party, calling for their production and offering them in evi-
dence, must prove their execution, notwithstanding they
come out of the custody of the adverse party, and are pro-
duced at the trial; and that an exception to this rule is
allowed, where the party producing the instrument is himself
a party to it, claiming under it an abiding interest in the sub-
ject of the action ; ^ or where the instrument was taken by
the party producing it, in the course of his official duty as a
public officer, as, for example, a bail bond, taken by the she-
riff, and produced by him on notice.^ In Equity this rule holds
good to its full extent, as to documents in the hands of a
plaintiff; but it is said that, as to documents in the hands of
a defendant^ the rule applies only to those of which the plain-
tiff is entitled to call for an inspection, but which the defend-
ant has insisted on some privilege to withhold.^
§ 307. The effect of an order for the prodtLction of docu-
ments is only to give the party obtaining the order the right
to inspect and take copies of them. It does not make them
evidence in the cause, except in those cases in which the mere
circumstance of their coming out of the custody of the other
party would, in itself, render them admissible. If, therefore,
the party obtaining the order wishes to have them proved in
the cause, or produced at the hearing, the order should be
specially framed for that purpose. The order itself esta-
blishes the fact, that the documents came out of the adverse
party's custody, into the hands of the officer of the Court;
and therefore, when they are produced in answer to a bill of
I AntCy Vol. 1, ^ 560) 571 ; Betta v. Badger, 12 Johns. 223 ; Jackson v.
Kingsley, 17 Johns. 158.
9 Scott V. Waitbman, 3 Stark. R. 168.
3 Gresley on Evid. p. 173/ If a document is stated in the bill, and adont-
ted and referred to in the answer, it cannot be read fix)m the bill, but ought
still to be produced. Cox v. Allingham, Jac. 339.
298 LAW OF EVIDENCE. [PART VI.
discovery, it is not necessary, for the purpose of proving this
fact, to read any part of the answer.^
§ 308. Having thus considered the subject of the produc-
tion^ we proceed, in the second place, to the proof of docu-
ments. And here it may be generally observed, that written
instruments, the execution of which is not admitted, and
which do not prove themselves, must be proved by the same
evidence in Equity, as at Law.^ The evidence for this pur-
pose is taken in the mode in which other evidence is taken in
Chancery proceedings, which is ordinarily by depositions be-
1 3 Dan. Ch. Pr. 2068 ; Taylor v. Salmon, 3 My. & Cr. 422. And see
ante^ Vol. 1, §660-563.
9 Ante, Vol. 1, § 564-584 ; 2 Dan. Ch. Pp. 1024. For the law respect-
ing the proof of Deeds, seetzn^c, Vol. 2, tit Deed, § 293-299.
It is proper in this place to mention the provision, made in the statutes of
some of the States, for the solemn admission of the genuineness of documents
intended to be used in the trial of causes, whether at Law or in Equity. The
provision on this subject, in the New York Code of Practice, § 388, [341] is
in the following words : — " Either party may exhibit, to the other or to his
attonley, at any time before the trial, any paper material to the action, and
request an admission in writing of its genuineness. If the adverse party or
his attorney fail to give the admission, within four days aflcr the request, and
if the party exhibiting the paper be afterwards put to expense in order to
prove its genuineness, and the same be finally proved or admitted on the
trial, such expense, to be ascertained at the trial, shall be psdd by the
party refusing the admission ; unless it appear, to the satisfaction of the Court,
that there were good reasons for the refusal.** The same regulation is en-
acted in California. Eev. Stat 1850, ch. 142, $ 294.
In other States, provision to the like effect is made by the Rules of Court
And in several States, where the suit or defence is professedly founded in
whole or part on the deed or other instrument in writing of the adverse
party, it is admissible in evidence without proof, unless such party shall ex-
pressly deny its genuineness under oath. See Texas, Hartl. Dig. art 688,
634, 741, 742; Wisconsin, Rev. Stat 1849, ch. 98, ^ 85; Arkansas, Rev.
Stat 1837, ch. 116, ^ 10 ; Missouri, Rev. Stat 1845, ch. 136, ^ 23; Ohio,
Rev. Stat 1841, ch. 46, ^ 18 ; Virginia, Rev. Stat 1849, ch. 171, ^ 38 ; IIH-
nois. Rev. Stat 1845, ch. 83, ^ 14; Indiana, Rev. Stat 1852, Pt 2, ch. 1,
^304.
The mode of proving public and private documents has been fully treated,
ante, Vol. 1,^479 -491, 501 -521, 569 -682.
PART VI.] SOURCES, MEANS AND INSTRUMENTS OF EVIDENCE. 299
fore an examiner, commissioner, or other officer, and which
will hereafter be stated.^
§ 309. In certain cases, however, constituting exceptions to
this general rale, witnesses may be examined vivd voce at the
hearing ; namely, first, where the plaintiff, finding sufficient
matter confessed in the answer to entitle him to a decree, sets
down the cause for a hearing upon the bill, answer and exhi-
bits ; and, secondly, where documents, letters, or other writ-
ings, essential to the justice of the cause, have been omitted
to be proved before publication. But this is a limited
indulgence, granted only to the party who is to use the docu-
ments ; and is obtained by a special order, granted on motion,
after notice to the adverse party, the documents and writings
to be proved being described with sufficient particularity,
both in the motion and in the order, and the omission of pre-
vious proof being satisfactorily accounted for.^ If a replica-
1 When a document or paper is proved by the deposition of a witness,
it is usual for the magistrate or officer, who takes the deposition, to mark it
with a capital letter, and to certify thereon that *' this paper, marked with
the letter (A.) was exhibited to the deponent at the time of his being sworn
by me, and is the same by him referred to in his deposition hereto annex-
ed ; " or, " taken before me on" such a day, &c. ; and hence such documents
and papers are termed Exhibits. The same term is also applied to instru-
ments which, on being exhibited to the adverse party, are thereupon solemnly
admitted by him to be genuine, and may therefore be read in evidence with-
out other proof; and is also, but with less accuracy, applied to certified ofii-
cial copies, admissible without other proof, and filed in the Clerk's office,
together with the bill or answer, to be read at the hearing. Exhibits proved
by depositions, should either be annexed to them, or so designated as to
leave no reasonable doubt of their identity. Dodge v. Israel, 4 Wash. 323.
In Georffia, it is required that copies of all deeds, writings, and other exhi-
bits be filed with the bill or answer ; and no other exhibits are to be admit-
ted, unless by order of Court, for cause shown. Originals, not admitted in
the answer, may be required at the hearing ; and on application to the
Court, or to a Judge ki vacation, originals may be ordered to be deposited
in the Clerk's office, for the impection of the' adverse party Rules of the
Superior Court in Equity, 1846, Beg. 17, Hotchk. Dig. p. 955.
2 2 Dan. Ch. Pr. 1025 - 1030 ; 1 Hoffim. Ch. Pr. 490 ; Graves v. Budgel,
1 Atk. 444 ; Banow v. Bhinelander, 1 Johns. Ch. 559 ; Hughs v, Phelps,
300 LAW OP EVIDBNCE. [PABT VI.
tion has been filed, and the plaintiff's testimony is a mere
exemplification of a record, which proves itself, he may read
it at the hearing, on giving seasonable notice to the defend-
ant of his intention, so that he may examine witnesses to
explain or rebut its effect, if it can be explained.^ But the
course of the Court of Chancery is to confine the proof at
the hearing to the verification of exhibits, excluding all
examinations as to other facts ; and not to refuse a party the
liberty of proving them in that mode, where it can be done,*
unless the execution or authenticity itself of the instrument
is expressly denied, and is the point in controversy.^ If the
execution of the instrument is neither admitted nor denied
by the defendant, it may be proved viva voce at the hear-
ing.*
§ 310. Though in the provf of exhibits^ the course of exa-
minations vivd voce at the hearing, in modern practice, does
not necessarily exclude every question that would admit of a
cross-examination^ yet it is restricted to a few simple points,
such as the manual execution of the instrument, by the testi-
mony of the subscribing witness, or by proof of the signature
or handwriting of an instrument or paper not attested ; or the
custody and identity of an ancient document, produced by
the librarian or registrar ; the accuracy of an office copy, pro-
duced by the proper officer, and the like.^ It is not ordina-
8 Bibb, 199 ; Higgins v. Mills, 5 Russ. 287 ; Consequa v. Fanning, 2 Johns.
Ch. 481. And sec Dana v. Nelson, 1 Aik. 252. The liberty thus granted,
has been extended to the proof of exhibits on a rehearing, <x' on an appeal,
which were not proved at the original hearing, or which have been subse-
quently discovered. Walker v. Symonds, 1 Meriv. 37, n. ; Higgins r. Mills,
supra; Dale v. Roosevelt, 6 Johns. Ch. 256 ; Williamson v, Hutton, 9 Price,
194.
I Mills V, Pittman, 1 Paige, 490. And see Pardee v. De CaU, 7 Paige,
132; Bachelor v. Nelson, Walk. Ch. 449 ; Miller v. Avery, 3 Barb. Ch. R.
582.
a Graves v. Budgel, 1 Atk. 444 ; EdgworA r. Swift, 4 Bro. P. C. 658.
3 Atty. Gen. t;. Pearson, 7 Sim. 803 ; Booth r. Creswick, 8 Jur. 333.
4 Rowland v. Sturges, 3 Hare, 530.
5 Gresl. Eq. Evid. p. 188, 189; 2 Dan. Ch. Pr. 1035, 1036; Ellis v.
PABT VI.] S0UKCE9, MEANS AND INSTRUMENTS OF EVIDENCE. 301
rily allowed to prove in this mode the handwriting of attest-
ing witnesses who are dead ; ^ nor the due execution of a will,
involving, as it does, the sanity of the testator;^ nor a deed
that is impeached in the answer, as against the party im-
peaching it ; ^ nor a book or ancient map, not produced by
an officer to whom the custody of it officially belonged.* But
where the instrument or paper is an important document,
leave will be granted to postpone the hearing, for the purpose
of proving it by interrogatories in the ordinary mode.^ And,
in examinations at the hearing, the Court will sometimes
permit a cross-examination, and will itself examine, vivd voce^
upon the suggestion of any question.^ The Court will, also,
in cases in which any exhibit may, by the present practice,
be proved vivd voce, at the hearing of a cause, permit it to
be proved by the affidavit of the witness who would be com-
petent to prove the same vivd voce at the hearing."^
ft
§ 311. The formal proof of written documents in a cause
does not, merely on that ground, entitle the adverse party to
inspect them before the hearing ; for it is the settled course
of Chancery, not to enable a party to see the strength of his
adversary's case, or the evidence of his title, or " to pick holes
in the deed," until the hearing of the cause.® But where an
Deane, 3 Moll. 63 ; Consequa v. Fanning, 3 Johns. Ch. 481 ; Graves v.
Budgel, 1 Atk. 444. And see E. of Pomfret v. Ld. Windsor, 2 Vez. 472.
1 Bloxton V. Drewit, Free. Ch. 64 ; 2 Dan. Ch. Pr. 1027.
9 Harris v, Ingledew, 3 P. Wms. 91, 93; Niblett v. Daniel, Bunb. 310 ;
Eade v, Lingood, 1 Atk. 203.
3 Barfield v. Kelley, 4 Buss. 355 ; Mahur v. Hobbs, 1 T. & C. 585.
4 Lake v. Skinner, 1 Jac. & Walk. 9 ; Gresl. Eq. Evid. p. 189.
s Bloxton V. Drewit, supra ; Bank v. Farqnes, Ambl. 145 ; Clarke v. Jen-
nings, 1 Anstr. 173 ; Mahur v, Hobbs, supra.
8 Turner v. Burleigh, 17 Yes. 354 ; Consequa v. Fanning, 2 Johns. Ch.
481.
7 Orders of Aug. 26, 1841, Ord. 43 ; Law's Pract U. S. Courts, p. 708.
8 Darers v. Davers, 2 P. Wms. 410 ; 2 Stra. 764 ; Hodaon ». E. of War-
rington, 3 P. Wms. 35 ; 2 Dan. Ch. Pr. 1030.
VOL. Ill, 26
302 LAW OF EVIDENCB. [PART VI.
inspection has been called for and had, the instraments are
admissible in evidence for both parties.^
.^ 4. WITNESSES.
§ 312. It has already been seen, that in many of the United
States, trials of fact, in Chancery, are had upon oral testi-
mony delivered in open Court, in the same manner as in
trials at Common Law ; and that the inclination of opinion
in some other States is in favor of this mode of proo£^ Nev-
ertheless, it is an ancient and general rule in Chancery, to
exclude oral testimony, and to receive none at the hearing
except ^what is contained in written depositions. And as
this rule is still acted upon in some of the States, and is par-
tially and in a modified degree still recognized as a leading
rule in others, it will be necessary to consider it in this place.
The general subject naturally disposes itself into two branch-
es ; namely, first, the competency of the toitnesses ; and, se-
condly, the marmer in which their testimony is obtained.
§ 313. And FIRST, as to the competency of witnesses. The
rules of evidence, generally speaking, are the same in Equity
as at Law ; and every person who is a competent witness at
Law, is also competent in Equity. What I^lb been said in
the preceding volumes on this subject will therefore not be
here repeated. But in certain cases, Courts of Equity go
farther in this respect than Courts of Law ; by examining
the parties themselves as witnesses ; a practice wholly un-
known to the ancient Common Law.^ We are therefore
here to consider in what cases persons, inadmissible as wit-
nesses at Law, are admissible in Equity. These are chiefly
1 Aniey Vol. 1, § 563.
S Supra, ^ 259, 264, 265.
9 Ante, Vol. 1, ^ 329, 348-354.
PART YI.] SOURCES, MEANS AND INSTRUMENTS OF EVIDENCE. 303
parties to ike record; for third persons, interested in the sub-
ject or event of the suit, or otherwise incompetent to testify
at Law, are for the same reasons exduded here also.
§ 314. A plaintiff in Equity may sometimes examine a co-
plaintiff as a witness. This is always permitted, when the
adverse party consents ; the only ground for excluding him
being his liability to costs, which rendered him interested in
the event of the suit. But if the defendant will not consent,
the bill, on motion, and giving security for costs, may be
amended, by striking out the name of the co-plaintiff, to be
examined as a witness, and inserting his name as a defend-
ant.^ If he is only a trustee or a nominal plaintiff, he is a
competent witness, of course, on the mere striking out of his
name ; but if he is not, and he still has an interest in the
event of the suit, it must be released.^ If his interest lies in a
part only of the subject of the suit, as to which separate relief
may be given, he may be examined in regard to the other
part of the subject without a release.^
§ 315. The plaintiff may also examine one of several defend-
antSy as a witness, as to points in which the defendant exa-
mined has no interest, or on which his interest is balanced.
Leave for this purpose is granted of course, on motion and
affidavit that the defendant is a material witness, and is not
interested in the matters to which he is to be examined ; sub-
ject to aU just exceptions, such as the competency of his tes-
timony, or the like ; all which are open to the adverse party
at the hearing. The affidavit of his freedom from interest is
generally understood to mean only that he is not interested
on the side of the party applying. But though he be not
I 1 Dan. Ch. Fr. p. 457, 1037; Grealey, £q. Evid. p. 839; Motteux v.
Mackreth, 1 Yes. 142 ; Witts v. Campbell, 12 Yes. 493; Hehns v. Fiancis-
C118, 3 Bland, 544. But see Benson v. Chester, 1 Jac. 577.
* Eckford v. De Kay, 6 Faige, 565 ; Hanly v, Sprtfgae, 7 ShepL 433 ;
Hoffin. Master in Chan. p. 19, 20 ; 1 Hoffm. Ch. Fr. 487.
3 lingan v. Henderson, 1 Bland, 268.
304 LAW OP BVIDBNCB. [PART VI.
thus interested, yet if he is interested adversely to the rights
of his co-defendants, as, for, example, to exonerate himself by
charging them, he cannot be examined.^ Wherever a defend-
ant is thus examined as a witness, he is subject to a cross-
examination by the other defendants.^
§ 316. This examination of a defendant by the plaintiff, as
a witness, ordinarily operates as an equitable release to him,
so far as regards the matters to which he is interrogated.
No decree, therefore, can be had against him, except as to
matters wholly distinct from those, to which he was exa-
mined.^ The reasons of this rule are, that it is inconsistent
to allow the plaintiff to call on the defendant to assist him
with evidence in his cause, and at the same time to act
against him, in respect to the same matter ; and also, that by so
doing, the other parties may be wronged.* If the defendant,
who is examined as a witness, is the party primarily liable to
the plaintiff, the other defendant being only secondarily liable,
the plaintiff cannot have a decree against either, upon that
part of the case to which the examination was directed.^ But
1 1 Hoffm. Ch. Pr. 486 ; 2 Dan. Ch. Pr. 1088, 1039 ; Man v. Ward, 2 Alk.
229 ; Hurd v. Partington, 1 Younge, 307 ; Fletcher v, Glegg, Id. 345 ; Ellis
V. Deane, 3 Moll. 58 ; Bogerson v. Whittington, 1 Swanst. 39 ; Hardcasde p.
Shafto, 2 Fowl. 100 ; Meadburyr v. Isdall, 9 Mod. 438 ; Robinson v. Samp-
son, 10 Shepl. 388 ; Harvey t;. Alexander, 1 Band. 219 ; De Wolf v. John-
son, 10 Wheat. 367 ; Miller v. McCan, 7 Paige, 457 ; Williams v. Beard,
3 Dana, 158 ; Sproule v. Samuel, 4 Scam. 135 ; Taylor v. Moore, 2 Band.
563.
3 Benson v, Le Boy, 1 Paige, 122 ; Hofim. Master in Chan. p. 20, 21 ;
Bobinson v. Sampson, supra; Hayward v. Carroll, 4H. &J. 518; Tall-
madge v. Tallmadge, 2 Barb. Ch. B. 290.
3 Weymouth v. Boyer, 1 Ves. 417; Lewis t?. Owen, 1 Ired. Eq. 93;
Palmer v. Van Doren, 2 Edw. Ch. 192 ; Bradley v. Boot, 5 Paige, 633 ; Lin-
gan 0. Henderson, 1 Bland, 268. This rule is now abrogated, and a decree
may be had, by virtue of the statute of 6 & 7 Vict c. 85. See 2 Dan. Ch.
Pr. 1042.
* Nightingale v, Dodd, Ambl. 583. And see Fulton Bank v. Sharon Ca-
nal Co. 4 Paige, 127 ; Thomas v. Graham, Walk. Ch. 117.
^ Bradley v. Boot, 5 Paige, 633. And see Thompson v.' Harrison, 1 Cox,
PAKT VI.] SOURCES, MEANS AND INSTRUMENTS OP BVIDBNCB. 305
the general rule we are considering does not apply to the
case of a mere formal defendant, such as an executor or a
trustee, against whom no personal decree is sought, and who
has no personal interest in the subject as to which he is exa«
mined ; nor to the case of a defendant who, by his answer,
has admitted his own absolute liability ; or who has permit-
ted the bill to be taken ^o confesso against him.^
§ 817. In some c^ses, as we have heretofore seen,^ a defend^
ant may examine the plaintiff as a witness. Leave for this
purpose may be obtained, wherever the plaintiff is but a
nominal party, having no beneficial interest in the property
in dispute ; and the real party in interest will, in such case,
be enjoined from proceeding at law.^ A co-plaintiff may
generally be examined as a witness for the defendant, by
consent ; ^ but leave will not be granted for one defendant to
examine a co-plaintiff as a witness against another defend-
ant, for the purpose of sustaining the bill against him.^ .
C. C. 344 ; Meadbory v. Isdall, 9 Mod. 438 ; Palmer v. Van Doren, 2 Edw.
Ch. 192 ; Nightingale v. Dodd, supra; Lewis v. Owen, 1 Ired. Eq. R. 390.
^ Bradley v. Boot, supra. And see Goold v, O'Eeefe, 1 Beat. 356 ; Ellis
V. Deane, 3 Moll. 53 ; Thompson v, Harrison, supra ; Murray v. Shadwell,
2 V. & B. 403.
8 Ante, VoL 1, $ 361.
3 Hougham v. Sandys, 2 Sim. &: Stu. 221 ; Norton v. Woods, 5 Paige, 249.
And see Fereday v. Wightwick, 4 Buss. 114 ; Armiter v. Swanton, Ambl.
393.
4 Walker t;. Wlngfield, 15 Yes. 178 ; Whately v Smith, Dick. 650.
s Eckford v. De Kay, 6 Paige, 565. In the States of New York, Iowa,
Indiana, Georgia, Louisiana, Texas, and CaUfomia, where there is no dis-
tinction, in the forms of proceeding, between cases at Law and in Equity,
provision is made by statute, for the examination of parties by each other as
witnesses. In li^ssissippi, and in Arkansas, in cases in Equity, the defend-
ant may insert in his answer any new matter of defence, and call on the
plaintiff, or on any of his co-defendants, as the case may be, to answer it on
oath. Mississippi, Stat Feb. 15, 1838, $ 1 ; Aid. & Van Hoes. Dig. App.
ch. 7. Arkansas, Bev. Stat. 1837, ch. 23, ^ 34. In several other States it
is provided, that the defendant, after he has answered the bill, may exhibit
interrogatories to the plaintiff, which he is compelled to answer. See Ohio,
Bev. Stat;. 1841, ch. 87, ^ 26 ; JMissouri, Bev. Stat. 1845, ch. 137, art. 2, ( 14,
26*
}
306 LAW OF BVIDBNCB. [PART VI.
§ 318. Co-defendants may also be tvitnesses for each other.
The rule in Courts of Equity, on this subject, is founded on
the same principle with the rule at Law, which has formerly
been stated,^ namely, that it ought not to be in the plaintiff's
power to deprive the real defendant of his witnesses by mak-
ing them defendants. And this principle applies, and there-
fore the testimony of a co-defendant may be had, in all cases
where he is either a merely nominal defendant, or has no benefi-
cial interest in the matter to which he is to be examined ; or hb
interest or liability is extinguished by release ; or is balanced ;
or where the. plaintiff cannot adduce some material evidence
against him ; or where no decree is sought, or none can be
properly had against him.^ If the witness, who was compe-
tent at the time of his examination, is afterwards made a
defendant, his deposition may still be read.^ And it makes
no difference that relief is prayed against the defendant pro-
posed to be examined as a witness, if the prayer be founded
upon matters other than that to which he is to be inteno-
gated, or, in other words, if his interest be not identical with
that of the party who examines him.* Regularly, a defendant
cannot examine his co-defendant, without an order for that
purpose ; which will be granted of course, before the decree,
15 ; New Jersey, Rev. Stat 1846, tit 33, ch. 1, ^0 ; Wisconsin^ Rev. Stat
1849, ch. 84, ^ SO ; Alabamay Code of 1852, ^ d914. ^
* Ante, Vol. 1, ^ 358.
3 Piddock V. Brown, 8 P. Wms. 288 ; Murray v, Strodwell, 2 V. & B.
401 ; Franklyn v. Colquhoun, ISVea. 218 ; Dixon v. Parker, 2 Vez. 219.
And see Whipple v, Lansing, 3 Johns. Ch. 612; Neilson v. M 'Donald,
6 Johns. Ch. 201 ; 3 Cowen, 139 ; Cotton v. Luttrell, 1 Atk. 451 ; Man r.
Ward, 2 Atk. 228 ; Souyerbye v. Arden, 1 Johns. Ch. 240 ; Kirk o. Hodg-
son, 2 Johns. Ch. 550 ; Bebee v. Bank N. York, 1 Johns. 577 ; Bieimsdyk v.
Kane, 1 Gall. 630 ; Clark v. Van Reimsdjck, 9 Cranch, 153 ; Batler v. El-
liott, 15 Conn. 187 ; Hawkins v, Hawkins, 2 Car. Law R. 627 ; Douglass v.
Holbert, 7 J. J. Marsh. 1 ; Hodges v. Mullikin, 1 Bland, 503 ; Bagan v, Ech-
ols, 5 Geo. R. 71.
3 Cope V. Parry, 1 Jac. & Walk. 583 ; Brown v. Greenly, 2 Dick. 504. ;
Bradley v. Boot, 5 Paige, 632.
4 Ashton V. Parker, 9 Jur. 574 ; 14 Sim. 632, S. C. And see Daniell o.
Daniell, 13 Jar. 164 ; Hohnan v. Bank of Norfold, 12 Ala. 369.
PAST VI.] SOURCES, MEANS AND INSTRUMENTS OP EVIDENCB, 307
saving all just exceptions, upon suggestion that he is not
interested, leaving the question of his admissibility to be de-
termined at the hearing ; but after a decree, it is not a motion
of course, but is granted only on special circumstances, and
upon notice to the plaintiff.^
§ 319, Secondly, as to the mode of taking' testimony. It
has already been seen, that in Chancery, the regular course
is to receive no testimony orally, except in the mere formal
proof of exhibits ; and that in several of the State Courts this
rule has been abolished, and evidence is received orally, in
Equity cases, in the same manner as at Common Law;^
while in others the old rule has been variously modified. In
view of this state of things, Congress, at an early period, ex-
pressly empowered the Courts of the United States to regu-
late the practice therein, as may be fit and necessary for the
advancement of justice ; and particularly, in their discretion,
and at the request of either party, to order the testimony of
witnesses in cases in Equity to be taken by depositions, in
the manner prescribed by law for the highest Courts of Equity
in the States where the Courts of the United States may be
holden ; except in those States in which testimony in Chan-
cery is not taken by deposition.^ And more recently, the
Supreme Court of the United States has been empowered to
prescribe, regulate and alter the forms of process in the Cir-
1 2 Dan. Ch. Pr. 1044 ; Williami v. Maitland, 1 Ired. Eq. 98 ; Nevill v.
Demeritt, 1 Green, Ch. 321 ; Bell v. Jasper, 2 Ired. Eq. 597 ; Hopkinton v.
Hopkinton, 14 N. Hamp. 315 ; Paris v. Hnghes, 1 Keen, 1. By the statute
6 & 7 Vict. c. 85, remoYing from witnesses the objection of incompetency by
reason of interest or infamy, defendants in Chancery may be examined as
THtnesses for the plaintiff, and also for each other, '* saying just exceptions."
Whether, under tiiis statute, co-defendants were entitied, of right, to exa-
mine each other as witnesses, in support of a common defence against the
plaintiff, is a point upon which opposite opinions have been held. See Wood
V. Bowdiffe, 11 Jur. 707, per Wigram, V. C, that they are. Monday v.
Guyer, Id. 861, 1 De G. & S. 182, per Bruce, V. C. that they are not
9 Supra^ ^ 251, 308, 309.
3 U. S. Stat 1802, ch. 31, ^ 25 ; Stat 1793, ch. 22, ^ 7.
308 LAW OF EVIDENCB. [PART VI.
cuit and District Courts, the forms of pleading in suits at
Common Law, in Admiralty and in Equity^ and of taking'
testimony and of entering decrees, and, generally, to regulate
the whole practice of the Courts.^ Pursuant to this author-
ity, Rules of Practice have been made, by which, after the
cause is at issue, commissions may be taken out either in va-
cation or term time, to take testimony upon interrogatories
filed in the Clerk's office, ten days' notice thereof being given
to the adverse party to file cross-interrogatories, on failure of
which the commission may be issued ex parte ; the commis-
sioner to be appointed by the Court or by a Judge thereof.
But if the palsies agree, the testimony may be taken upon
oral interrogatories, propounded by the parties at the time of
taking the depositions.^ Testimony may also be taken in
the cause, after it is at issue, by deposition, according to the
acts of Congress, the substance of which has been stated in
a preceding volume.^ But in such case, if no notice has been
given to the adverse party of the time and place of taking
the deposition, he may be permitted to cross-examine the
1 U. S. Stat 1842, ch. 188, $7. In the Judiciaiy Act of 1 789, ch. 20, ^ 80,
it was enacted, that *' the mode of proof, by oral testimony and examination
of witnesses in open Court, shall be the same in all Courts of the United
States, as well in tlic trial of causes in Equity and of Admiralty and Mari-
time Jurisdiction, as of actions at Common Law." By the subsequent statute
of April 29, 1802, ch. 291, ^ 25, the imperative character of this proviaon .
was remoYed, so far as regards suits in Equity, by leaving it " in the discre-
tion of the Court, upon the request of either party, to order the testimony of
the witnesses therein to be taken in conformity to the regulations prescribed
by law for the Courts of the highest original jurisdiction in Equity, in cases
of a similar nature, in that State in which the Court of the United States
may be holden ; provided^ however, that nothing herein contained shall ex-
tend to the Circuit Courts which may be holden in those States in which
testimony in Chancery is not taken by deposition." Conn v. Fenn, 5 Wheat.
424. Provision is also made, by statute, for reducing oral testimony to
writing, to be used in the Supreme Court on appeal, no other testimony
being in such cases allowed." Stat. U. S. Sept 24, 1789, ch. 20, ^ 19;
Stat. U. S. March 3, 1808, ch. 98, $ 2 ; The Boston, 1 Sumner, S32.
3 Rules for Circuit Courts in Equity, Beg. 67.
8 Ante, Vol. 1, ^ 322 - 824.
PART VI.] SOURCBS, MEANS AND INSTRUMENTS OF EVIDENCE. 309
witness, either under a commission, or by a new deposition,
in the discretion of the Court or Judge.^
§ 320. In the construction of these rules, it has been held,
that in cases of disagreement between the parties as to the
form of interrogatories and cross-interrogatories, it should be
referred to a master to settle the proper form ; subject to an
appeal from his decision, which will be reviewed by the Court,
at the hearing, upon a view of the whole testimony ; and that
when exceptions are intended to be taken to such interrogato-
ries and cross-interrogatories, they should be propounded as ob-
jections, before the commission issues, or they will be deemed
to be waived.* All the interrogatories must be substantially an-
swered. If the cross-interrogatories which were filed are not
put to the witness, the deposition, ordinarily, cannot be read ;
but if the other party has unreasonably neglected to file any,
it is at his own peril, and the deposition may, in the discre-
tion of the Court, be admitted.^ If the commission is joint,
it must be executed by all the commissioners ; * if joint and
several, the commissioners are competent to take the deposi-
tions of each other ; ^ but in either case, if a person not named
in the commission, appears to have assisted in taking the
examination, it is fatal to the admissibility of the deposi-
tion.®
§ 321. By another Rule,^ the time ordinarily allowed for
the taking of testimony, is three months, after the cause is at
^ Rules for Circuit Courts in Equity, Reg. 68.
5 Crocker v. Franklin Co. 1 Story, R. 169 ; United States v. Hair Pen-
cils, 1 Paine, 400. And see Barker v. Birch, 7 Eng. L. & Eq. R. 46.
3 Eetland o. Bissett, 1 Wash. C. C. R. 144 ; Gilpins v. Consequa, 3 Wash.
184 ; Bell v, Dayidson, Id. 828 ; Gass v. Stinson, 3 Sumn. 98. For the cases
in which a deposition will be admitted in Equity, notwithstanding the want
of a cross-examination, see ante, Vol. 1, ^ 554. See, also, infra, ch. 3, ^ 1.
4 Armstrong v. Brown, 1 Wash. C. C. R. 43.
5 Lonsdale v. Brown, 3 Wash. 404.
6 Willings V. Consequa, 1 Pet. C. C. R 301 .
7 Rules for Circuit Courts in Equity, Reg. 69.
310 LAW OP BVIDBNOB. [PAET VI.
issue ; but it may be enlarged, for special cause shown. And
immediately after the commissions and depositions are return-
ed to the clerk's office, publication may be ordered by a Judge of
the Court, or it may be enlarged, at his discretion. But pub-
lication may at any time pass, in the Clerk's office, by the writ-
ten consent of the parties, duly entered in the order-book, or
indorsed on the depositions or testimony.
§ 322. It is also ordered, by another Rule of the same
Court,-^ that after the filing of the bill, and before answer,
upon affidavit that any of the plaintiff's witnesses are aged
or infirm, or going out of the country, or that any of them is
a single witness to a material fact, a commission may issue,
as of course, to a commissioner appointed by a Judge of the
Court, to take their examination de bene essej upon due
notice to the adverse party. These are the principal rules,
adopted in the national tribunals, which affect the law of evi-
dence in cases in Equity ; except such as may hereafter be
mentioned. But it is further ordered, that in all cEises where
the rules prescribed do not apply, " the practice of the Cir-
cuit Court shall be regulated by the [then] present practice
of the High CQurt of Chancery in England, so far as the
same may reasonably be applied consistently with the local
circumstances and local convenience of the District where
the Court is held ; not as positive rules, but as furnishing
just analogies to regulate the practice." ^ And it is to be
noted, that it is the practice of the Court of Chancery, and
not that of the Exchequer, which thus forms the basis of the
Equity practice of the Courts of the United States.* The
same may be said of the course of practice in Equity in all
the State Courts, so far as it has not been changed by express
orders or immemorial usage, nor by statutes.
I Bnles for CiTcnit Courts in Equity, Seg. 70.
9 Idem. Beg. 90.
3 SmiUi v.Bumham, 2 Sumn. 612. In some of the United States, the
practice in Equity, in cases not otherwise regulated, is expressly ordered to
be in conformity to the Bules of Practice made by the Supreme Court of
the United States. See Pennsylvania^ Dunlop's Dig. ch. 525, $ 13, p. 834.
PAKT VI.] SOUECES, MEANS AND INSTRTXMBNTS OF EVIDENCE. 311
§ 323. When depositions are taken under a commission, or
by an examiner, the course is for the party to file in the
Clerk's office the original interrogatories to be propounded to
the witnesses he would examine ; giving opportunity to the
adverse party, by reasonable notice prescribed by the rules,
to file his cross-interrogatories. These are to be signed by
counsel, as a guaranty of their propriety and fitness to be
put ; after which the commission issues. The attendance of
the Witness before the commissioner or examiner is obtained
by means of a subpasna ; disobedience to which may be pun-
ished by attachment, as a contempt of Court.^ The course
of examination upon interrogatories, and their character as
proper to be put, has been sufficiently indicated in a preced-
ing volume, when treating of the examination of witnesses.^
But it may here be repeated, that the witness can be exa-
mined only to matters alleged in the bill or answer, or rele-
vant to the issue.^ Though interrogatories may be referred
1 Rules for Circuit Courts in Equity, Reg. 78.
« Ante, YoL 1,^481-469.
3 The question whether, where a fact is charged and put in issue in a bill, the
examinations of witnesses to the conversations of the defendant are admissible
to prove the fact, unless such conversations are expressly charged in the bill, as
evidence of such fact, is a question upon which there is some diversity of opi-
nion. The rule of practice in England seems to exclude the evidence in such
cases. 2 Dan. Ch. Pr. 995 , 9 96. But the authorities cited in support of the rule
were reviewed with critical acumen, and the principle clearly expounded, in
Smith V. Bumham, 2 Sumn. 612, by Story, J., who held that the evidence
was admissible. In that case it was stated in general terms, in the bill, that
the defendant, at divers times had spoken of the title in controversy as one
belonging to the partnership claimed by the plaintiff; but the particulars of
the time, place and circumstances of the admissions were not stated in the
bill. The interrogatories, filed^by the plaintiff to elicit these conversations were,
on the defendants petition, referred for impertinence ; and the report of the
master, which allowed them, being excepted to, the learned Judge, in dis-
ponng of the exception, vindicated his dissent from the English rule, in an
argument best stated in his own language. '* The case of Hall v, Maltby,"
he observed, « (6 Price R. 240, 258, 259,) is relied on in support of the ex-
ception ; and certainly, if the language of that decision is to be taken in its
full latitude, it is directiy in point In that case there was a charge of a
312 LAW OF BVIDBNOB. [PART VI.
for scandal, it is doubtful whether they can be referred for
mere impertinence ; ^ but if the witness would object to an
fraudulent withdrawal of tithable sheep from tithes ; and Chief Baron Bich-
ards, at the hearing, rejected the evidence of conversations of the defendant,
establishing the fact ; because, though the fraudulent withdrawal was charged
in the bill, the conversations were not." Id. p. 614. *' It is true, that in this
case, there was a charge of fraud ; and the Chief Baron seems to relj on that
as important to his decision. And Lord Chancellor Hart, in MuUonland v.
Hendrick, (1 M0II07, B. 859; S. C.Bcatt B. 277,) in affirming the same
doctrine, seems to have placed some reliance on the same &ct, of its being a
charge of fraud, considering fraud as an inference of law from &cts, and not
a mere fact In other cases, however, he does not seem to rely on anj such
distinction. Indeed, it is very difficult to understand the ground of such a
distinction. The facts to be established hj such confessions, and conversar
tions, and admissions, are not so much fraud in the abstract, as evidence
conducing to establish it If, upon a charge of fraud in a bill, stating that
certain acts done were fraudulently done, evidence of confessions admitting
the acts and the intent cannot be given in evidence, unless those confessions
are also charged in the bill, as evidence of the fraud ; it seems to me, that the
principle of the rejection of the evidence must apply equally to aU other
cases of confessions to establish facts, which are to prove any other chaige
in a bill. Take the present case. The main object of the bill and interro-
gatories is, to establish a partnership in certain transactions between the
plaintiff and defendant, out of which certain rights of the plaintiff have
sprung, which he seeks to enforce by the bill. The confessions and admis-
sions arc not charged in the bill ; but the partnership is. Now, partnership
itself is not, in all cases, a mere matter of fact, but is often a compound of
law and fact. And, I cannot see a mngle ground, upon which the evidence
of confessions and admissions ought to be rejected in the case of a chaige of
fraud, which does not equally apply to the charge of partnership. In each
case the evidence is, or may be, equally a surprise upon the party ; and in
each of them he is equally prevented from giving, by his answer, such deni-
als and explanations, as may materially affect the whole merits of the cause.
It seems to me, then, that the doctrine, if it exists at all, must equally apply
to all cases, where the fact charged, in respect to which the confessions, con-
versations, or admissions are offered, as proofs, constitutes the gist of the matter
of the bill. And yet I do not understand, that such a doctrine, so universal, is
anywhere established, unless it is so in Ireland by Lord ChanceUor Hart, who
has discussed the subject in a variety of cases, and seems to assert it in bzoad
I Cox V. Worthington, 2 Atk. 236 ; White v. Fussell, 19 Ves. 113 ; Pyn-
cent V. Fyncent, 8 Atk. 657.
PAKT VI.] SOUECBS, MEANS AND INSTRUMENTS OF EVIDENCE. 313
interrogatory for this latter cause, he must do it by demurrer,
before he answers.^ But his right to demur is only where the
temoM. He has ezprettly refused to apply it to cases, -where written papers,
letters, or docnmentB, are relied on as proofs of general facts charged in the
bill ; although such papers, lett^s, and documents are not charged as proofi
in the bill. (Fitzgerald v. O'Flaherty, 1 M0II07, R. S50 ;) unless, indeed,
those papers, &c., are relied on as confessions <^ the party, which he treats as
an exception to the general rule of evidence. < The general rule,' (said he
on one occasion) * is, that all evidence, intended to be relied on at tht hearing,
should be founded on some allegation, distinctly put on record, of fact, which
it is calculated to support' 'It is a yery old principle, to be found very
clearly stated in Yemon (Whaley v. Norton, 1 Vem. R. 483 ;) but I must
be greatly misread, if the evidence, and not only the fact to be proved by
the evidence, must be put in issue, to entitle the evidence to be read.' He
repeated the same remark with the same exception, in Blacker v. Phepoe,
(1 Molioy, R. 357, 358.) The doctrine of Lord Chancellor Hart, to be de-
duced from all the cases decided by him, seems to be this ; — that, wherever
confessions, conversations, or admisnons of the defendant, either oral or writ-
ten, are relied on in proof of any facts charged in the bill, they are inadmis-
sible, unless such confessions, conversations, or admissions are charged in the
hill ; because they operate as a surprise upon the party, and he is deprived
of any opportunity to deny or explain them in his answer. He admits the
general rule to be the other way ; and insists upon this as an exception to it
The question, then, really is, whether the exception, either in its general
form, as asserted by Lord Chancellor Hart, or in its qualified form, as as-
serted by Lord Chief Baron Richards, has a real foundation in Equity juris-
prudence. Both of these learned Judges rely on the case of Evans v. Bick-
nell, (6 Yes. R. 174,) in which they were counsel on opposite sides, to
support their doctrine. Lord Chief Baron Richards says, that it was so
decided in that case. Lord Chancellor Hart does not agree to that ; but
admits, that he drew the bill in that case with a full knowledge of the excep-
tion. It is very certain, that the point was not decided in the case of Evans
V. Bicknell, if we are to trust to ib» printed report in 6 Yes. R. 1 74. And,
upon the state of the pleadings, I do not see how the point could have arisen."
Id. p. 616 - 618. " The case of Evans v, Bicknell, (6 Yes. R. 1 74, 189, 192,)
does not sustain the doctrine of Lord Chief Baron Richards, or of Lord
Chancellor Hart ; and I have not been able to find a single decision in the
1 Fackhurst v. Lowten, 2 Swanst, 194. And see Bowman v. Rodwell,
1 Madd. 266 ; Langley v. Fisher, 5 Beav. 443. The demurrer, if the
Court can dispose of the question in that shape, will be tried in that form at
once, without reserving it until the hearing. Carpmael v. Powis, 1 Phill.
Ch. Ca. 687.
VOL. III. 27
814 LAW OF BVIBENCB. [PABT VI.
impertinence relates to himself; he cannot object to an inter-
rogatory because it is immaterial to the matter in issue, for
English Court of Chanceiy, which does sustain it. And yet, if the doctrine
had been well established, it seems to me almost impossible that it should not
be found clearly stated in the books, as it must be a case of so frequent re-
currence in practice. On the contrary, it seems to me, that the case of Eazle
v. Pickin, (1 Russ. & Mylne, B. 547,) shows, that no such rule is established
in Chancery." Id. p. 621. " If then, in the absence of authority in fiiTor
of the rul«, we look to principle, it seems to me impossible, that it can be.
supported. There is no pretence to say, that in general it is true, that, as
to the fikcts to be put in issue, it is necessary, not only to charge these &ct8
in the bill, but also to state in the bill the materiab of proof and testimony,
by means of which these facts are to be supported. Lord Chancellor Hsurt
has admitted this in the fullest manner, saying : ^ The eyidence of facts,
whether documentary or not, need not be put in issue ; evidence of confes-
sions, whether documentary or not, must' Why admissions or conyersa-
tions, as materials of proof, should be exceptions from the general practice, I
profess myself wholly unable to comprehend. Other papers and testimony
may be quite as much matters of surprise, as documents or testimony, as
conversations or admissions ; and the circumstance, that conversations or ad-
missions are more easily manufactured than other proofs, furnishes no ground
against the competency of such evidence, but only against its cogency as
satisfactory proof.
** Two grounds are relied on to support the exception. The first is, that
the defendant may not be taken by surprise, and, (as it has been said), ad-
mitted out of his estate ; but may have an opportunity to cross-examine the
witnesses. The second is, that the defendant may have an opportunity, in
his answer, fully to deny, or to explain the supposed admissions or conversa-
tions. Now, the former ground is wholly inapplicable to our practice, where
the interrogatories and cross-interrogatories put to every witness are fully
known to both parties; and, indeed, in the laxity of our practice, where the
answers of the witness are usually as well known to both parlies. So that
there is no general ground for imputing surprise. Indeed, in this veiy case,
it is admitted by the learned counsel for the defendant, that there has not
been any surprise. The second ground is applicable here. But, then, proofit,
documentary or otherwise, may be offered as evidence of &cts charged in
the bill, as well as admissions and conversations, which it might be equally
important for the defendant to have an opportunity to deny or to explain, in
order to support his defence. Yet the evidence of such facts is not, there-
fore, inadmissible. So that the exception is not co-extensive with the sup-
posed mischief.
<< But it seems to me, that the exception would itself be introductive of much
of the mischief, against which the practice of the English Court of Chancery is
PABT VI.] SOUBCES, MEANS AND INBTRUMBNTS 09 BYlt^ENCB. 315
this is the right of the party alone.^ Usually, but not neces-
sarily, the interrogatories are closed by what is termed the
designed to gnard suitors. In general, the testimony to be given by wit-
nesses in a cause at issue in Chancery, is studiously concealed until after
publication is formally authorized by the Court The witnesses are exa-
mined in secret upon interrogatories not previously made known to the other
party. The object of this course is to prevent the fabricati6n of new evi-
dence to meet the exigencies of the cause, and to take away the temptations
to tamper with the witnesses. Now, if the exception be well founded, it will
(as has been strongly pressed by counsel) afford great opportunities and
great temptations to tamper with witnesses, who are known to be called to
testify to particular admissions and conversations. So that it may well be
doubted, whether, consistently with the avowed objects of the English doc-
trines on this subject, such an exception could be safely introduced into the
English Chancery. There is another difficulty in admitting the exception ;
and that is, that there is no reciprocity in it ; for while the defendant in a
suit would have the full benefit of it, the plaintiff would have none, since his
own admissions and conversations might be used, as rebutting evidence,
against his claims asserted in the bill, although they were not specifically
referred to in the answer.
" Several cases have been referred to, both in the English and the Ameri-
can Reports, in which the case has been mainly decided upon the admissions
or conversations of the parties, which were not specifically stated in the bill,
or other pleadings. I have examined those cases ; and although it is not
positively certain, that there were not, in any instance, any such admissions
or conversations charged in the bill, yet there is the strongest reason to be-
lieve, that such was the &ct; and no comment of the counsel or of the Court
would lead us to the supposition, that there was imagined to be any irregular-
ity in the evidence. I allude to the cases of Lench v. Lench, (10 Yes. B.
511) ; Besant v. Eichards, (1 Taml3m, R. 509) ; Neathway v. Ham, (1 Tam-
lyn, R. 316) ; Necot v. Barnard, (4 Russ. R. 247) ; Parle v. Peele, (1 Paige,
K 477) ; Marks v. Fell, (1 Johns. Ch. K 594), and Harding v. Wheaton,
(11 Wheat. R. 103 ; S. C. 2 Mason, R. 375.) So far as my own recollec-
tion of the practice in the Courts of the United States has gone, I can say,
that I have not the slightest knowledge, that any such exception has ever
been- urged in the Circuit Courts, or in the Supreme Court, although nume-
rous occasions have existed, in which, if it was a valid objection, it must have
been highly important, if not absolutely decisive. Until a comparatively
recent period, I was not aware that any such rule was insisted on in Eng-
land or America, notwithstanding the case of Hall v. Maltby, (6 Price, R.
1 Ashton V. Ashton, 1 Yem. 165; Tippins v, Coates, 6 Hare, 21 ; Lang-
ley V, Fbher, 9 Jur. 1066 ; 5 Beav. 443.
316 LAW OV BVIDBNOB. [PAKT VI.
general interrogatory, the form of which is prescribed in the
Rules ; ^ and if propounded, this also must be answered, as
250, 252, 258.) Indeed, Mr. Gredey, in his late Treatise on Evidence, lias
not recognized any such rule, although in one passage the subject wasdirectlj
under his consideration, and he relied for a more general purpose on that
yeiy case. If it had been clearly settled in England, it would scarcely have
escaped the attention of any elementary writer, professedly discussing the
general doctrines of evidence in Courts of Equity.
" My opinion is, that the principle to be deduced from the case in 6 Price,
B. 250, before Lord Chief Baron Richards, supported, as it is, by the other
cases already cited before Lord Chancellor Hart, is not of sufficient author-
ity to establish the exception contended for, as an exception known and
acted upon in the Court of Chancery in England, whose practice, and not
that of the Court of Exchequer, furnishes the basis of the equity practice of
the Courts of the United States. I have a very strong impression, that in
America the generally received, if not the universal practice, is against the
validity of the exception. If the authorities were clear the other way, I
should follow them. But if I am to decide the point upon general princi-
ples, independent of authority, I must say, that I cannot persuade myself
that the exception is well founded in the doctrines of equity jurispmdencey
as to pleadings or evidence.
^ The exception, therefore, to the Master^s report must be overruled. It
would be a very different question, if the bill should contain no charges, as
to admissions or conversations of the defendant, and the defendant should
be surprised at the hearing by evidence of such admissions and converaar
tions in support of the facts put in issue, whether the Court would not, for
the purposes of justice, enable the defendant to countervail such evidence,
by giving him leave to ofier other evidence, explanatory or in denial of it,
upor reference to the Master, or by an issue, as was done in the case of
Earle v. Picken, (1 Buss. & Mylne, B. 547.) I imagine, that one reason
why, when evidence of admissions or conversations of the defendant ia
intended to be introduced, in support of facts charged in the bill, and put in
issue, such admissions and conversations are so often charged in the bill, is to
avoid the very difficulties in which the omission must leave the cause ; vizi^
the litde confidence which the Court would give to it, as a species of evi-
dence easily fabricated, and the inclination of the Court to endeavor, -by a
reference or an issue, to overcome its force.
" I have not thought it necessary, in the view which has been taken of
the exception to the Beport of the Master, to consider with much care the
other objection made to the exception ; to wit, that the admissions and con*
Tersations are sufficiently charged in the bill to let in the evidence, even if
1 Bules for Circuit Courts in Equity, Reg. 71.
PABT VL] SOUBCES, MEANS AlH) INSTRT7MBNTS OF SVIDENCB. 317
well as the others, or the deposition will be suppressed.^ If
a material part of the evidence comes out under the general
interrogatory, this is no valid objection to the deposition.^
the rale were as the pladntiff 's counsel has contended it to be. The only
charge bearing on this matter is, that ' at all the times aforesaid, as well as
at divers other times, through all the negotiations aforesaid, as well as in
manj other negotiations in relation to the contract aforesaid, the said Dan-
iel Bumham (the defendant) constantly spoke of the said interest in the said
lands of the said Black, as belonging to the said copartnership, and spoke of,
recognised, and treated your orator as having an equal and copartnership
right therein/ This language is somewhat indeterminate ; for it is not
charged, whether the defendant spoke to the plaintiff, or to third persons ;
and no persons in particular are named, with whom he held any conversa-
tions on the subject If the rule contended for existed, I should greatly
doubt, whether such an allegation, in such loose and uncertain terms, was a
sufficient compliance with it; for it would lie open to all the objections,
against which the rule is supposed to be aimed. The defendant, to so gene-
ral a charge, could do no more than make a very general answer. So that
he would be deprived of all the benefit of all explanations and denials of
particular conversations. But it is unnecessary to dwell on this point, as
the other is decisive." Id. p. 622 - 627.
The same question was, eight years afterwards, again raised before
this learned Judge, in Jenkins v. Eldredge, 3 Story, B. 183, who adhered
to his former opinion, expressing himself as follows : — "But here we are
met by an objection — that much of the evidence stands upon confessions
and statements, made by Eldredge, and testified to by the witnesses, which
are not charged in the bill, so as to let them in as proper evidence. And in
support of this objection, among other cases, Hughes v. Gamett, (2 Younge
& GoU. 828) ; Grahan^ v. Oliver, (3 Beavan, B. 124) ; Earle v. Pickin,
(1 Russ. & Mylne, 547) ; and especially Atwood v. Small, (6 Clarke & Fin-
neU. B. 360,) are cited. I had occasion in the case of Smith v. Bumham,
(2 Sumner, R. 612,) fully to consider this whole matter; and I remain of
tiie opinion then expressed, that there is no difierence, and ought to be no
difference, in cases of this sort, between the rules of a Court of Law, and
those of a Court of Equity, as to the admission of such evidence. Its admis-
sibility may, however, be properly subject, under particular circumstances,
to this qualification, (which Lord Cottenham is said to have supported,) that
if one party should keep back evidence, which the other might explain, and
thereby take him by surprise, the Court will give no effect to such evidence,
without first giving the piarty, to be affected by it, an opportunity of contro-
1 See supra^ ^ 320 ; Richardson t;. Golden, 3 Wash. 109.
a Bhoades v. Selin, 4 Wash. 715.
27*
318 LAW OF EVIDENCE. [PAST TL
§ 324. In takings the examinaMon upon written interroga-
tones, the witness having been duly sworn, the comniis-
sioner or examiner is to put the interrogatories singly^ and
seriatim^ in the order in which they are written ; and may
explain to the witness their import and meaning ; but
shoald not permit him to read or hear any other interroga-
tory, until the one akeady propounded be fully answered ;
nor unnecessarily to depart, until the examination is con-
cluded. The answers must be written down by the commis-
sioner, or examiner, or by his clerk in his presence and under
his direction ; after which, the whole is to be distinctly read
over to the witness, and signed by him.^ He may make any
correction in his testimony, by an explanatory addition
thereto, at any time before he departs from the presence of the
commissioner or examiner, though the examination be signed
and closed ; but not afterwards, unless by leave of the Court
for that purpose.^ The depositions are then certified by the
verting it This course may be a fit one in cases where, otherwise, gross
injustice may be done. But I consider it as a matter resting in the sound
discretion of the Court, and not strictly a rule of evidence. But whatever
may be the rule of evidence in England on this point, it is not so in America ;
and our practice in Equity causes, where the evidence is generaUy open to
both parties, rarely can justify, if, indeed, it ever should require, the intro-
duction of such a rule. Mr. Vice-Chancellor Wigram, in Malcolm r. Scott,
(3 Hare, R. 39, 63,) seems to me to have viewed the rule very much under
the same aspect as I do. But, at all events, the practice is entirely settled
in this Court, and I, for one, feel not the slightest inclination to depart from
it, be the rule in England as it may be." 3 Story, R. 283, 284. See, also,
Story, Eq. PI. % 266, a, note; Ante^ Vol. 1, $ 171, note.
1 d Dan. Ch. Pr. 1061 - 1064, 1088 - 1090. It is to be remembered, that
witnesses may always be examined viva voce, by consent of parties, either by
the parties, or their counsel, or by the commissioner or examiner, or by a
master, if the case is before him. See Story ». Livingston, 13 Pet 359, 368 ;
Rules for Circuit Courts in Equity, Reg. 78.
« 2 Dan. Ch. Pr. 1064, 1089 ; Abergavenny, Ld. ». Powell, 1 Mer. 130-
And see Griclls r. Gansell, 2 P. Wms. 646 ; 2 Eq. Cas. Abr. 69, pL 6, S. C;
Kingston v. Tappen, 1 Johns. Ch. 368. The course of proceeding porsned
by Examiners in England, is stated by Mr. Plumer, in his answera returned
to the Chancery Conunission, in the following terms : —
^ The Examiners are two in number; one examines the plaintiff's wife-
PAET VI.] SOURCES, MEANS ABTD INSTRUMENTS OP EVIDENCE. 319
commissioner or examiner, and sealed up, with the commis-
sion or order of Court, on the back of which his doings are
nesses, the other the defendant's. A set of interrogatories, engrossed on
parchment, with counsel's name attached, is brought to the office by the soli-
citor and lodged with the sworn clerk. This is called filing interrogatories,
*^ The Solicitor, at the same time, usually makes an appointment for the
attendance of witnesses to be examined upon them, and secures one, two, or
more days, as he supposes the examination will occupy. Upon the witnesses
attending they are taken up by the sworn clerk to the six clerks' office, and
produced at the seat of the Clerk in Court for the opposite party ; and a
note of the name, residence, and description of each witness is left there.
From the six clerks' office the witnesses proceed with the same officer to the
public office, where they are sworn before the Master in Chancery, who
certifies that fact, by afiixing a memorandum of it upon the interrogatories,
in the following form :
** A. £. and C. D., both sworn befbre me at the public office, this
day of "
(Signed.)
<^ The examination bears date from the time of the witnesses being sworn,
though they may, perhaps, not be examined for seTeral days afterwards.
** If the witness is prevented, by age or infirmity, from attending in person,
an order is obtained that he may be examined at his own residence ; and in
that case the Master in Chancery attends there to administer the oath, and
the Examiner to take his deposition.
** If, after the witnesses have been sworn, any alteration is made in the
title or any other part of the interrogatories, they must be resworn, but not
reproduced
'* Before the witnesses are examined, the Examiner ought to be, and gene-
rally is, furnished by the solicitor with instructions as to which of the interro-
gatories each witness is to be examined upon.
" The solicitor also supplies a minute of the evidence he expects his wit-
nesses to give ; but of such paper no use can be made in the examination.
On the return of the witnesses to the Examiner's office, from being sworn,
. they aro examined separately, and in secret, (that is without any third per-
son being present) by the Examiner, who reads over the interrogatories suc-
cessively, and takes down the answer in writing, concluding the answer to
each interrogatory beforo the following one is put The Examiner consi-
ders himself bound,' and strictly bound,.to adhero to the record ; but if an
ambiguity occurs in the interrogatory, and the witness does not strictly com-
prehend its meaning, the Examiner feels himself at liberty to give an expla-
nation ; and if necessary, as is frequently the case with country witnesses
and unprofessional persons, to couch it in less technical and more familiar
320 LAW OF BVIDBNCB. [PAET VI,
certified ; and the whole is returned to the Court, within the
time limited by the rules. If a witness does not under-
language ; taking care, however, that the answer nltiniatelj elicited and re-
corded, shall he strictly an answer to the terms of the interrogatory.
" When all the interrogatories, upon which the Ezaminer was intrusted to
examine the witnesses have been thus gone through, the Examiner carefully
reads over the whole deposition to the witness, who, if he be satisfied with
it, signs each sheet of it in the presence of the Examiner. If, however, the
witness, upon consideration, wishes to vary his testimony or to make any
alteration in or addition to it, he is at liberty to do so before signing the de-
position.
" Afler the deposition h^s been signed, and the witness has left the office,
the rule is almost invariable, that no furtiier alteration or addition can be
made without special leave of the Court The only exceptions are where a
witness^ speaking from recollection of the contents of a written document,
finds, on referring to the document, that he has made a mistake in a date
or sum. Upon the document being produced to the Examiner he consi-
ders himself at liberty to correct the error. Or, where the witness can
satisfy the Examiner, that the statement sought to be added was actu-
ally made to the Examiner during the examination, but inadvertentiy
omitted to be taken down by him ; the Examiner considers that he may sup-
ply his own omission ; the principle in both cases being that the evidence
could not be of subsequent manufacture. The same witness cannot be re-
examined upon the same interrogatories or to the same matter, without an
order of the Court ; but he may, at any time before publication passes, be
examined upon any one or more of the interrogatories already filed, upon
which he was not previously examined ; or additional interrogatories may
be filed for the further examination of a witness previously examined, pro-
vided they are not to the same points.
" If the*opposite party intends to cross-examine, notice of that intention is
left with the Examiner who examines the witnesses in chief; the cross inter-
rogatories are filed with the other Examiner ; and the witness, after having
completed his examination in chief, attends at the other office to be examined
upon them.
'* The depositions, when taken, remain with the Examiner, who is bound
by oath not to communicate their contents to eitiier party, until the time ex-
pires within which, according to the rules of the Court, both sides must have
concluded their evidence. Publication (as it is termed) then passes. This
time is frequentiy extended by order or consent of parties. When pub-
lication has passed, the Examiner gives out the original depositions to the
sworn or copying clerk, who makes copies of them for the parties, when
ordered by them. To the copy of the depositions made for the opposite
TART VI.J SOURCES, MEANS AND INSTRUMENTS OP BTtDBNCB. 321
stand tbe English language, the commissioner, virtute officii^
may appoint an interpreter,^ who should be sworn truly to
interpret between the commissioner and the witness; and
the answers of the witness are to be taken down in English,
through the interpreter.^
§ 325. Testimony may also be taken in perpetuam ret W6-
moriamj by a commission, issued pursuant to a bill filed for
that purpose ; which every Court, having general jurisdiction
in Equity, has inherent power to sustain.^ The commission
is executed as in other cases. But as this subject is regu-
lated by statutes in most of the United States, and the mode
of taking depositions has been stated in a preceding volume,^
part7, a copy of the interrogatories is added ; but the party who filed the
interrogatories does not take a copy of them. Each copy is signed by the
Examiner, to authenticate it ; and upon its being taken away, the fees due
to the office are paid. Every document or exhibit, referred to in the depo-
sitions, is also signed by the Examiner, before it is returned to the party pro-
ducing it" See Gresley, Eq. Evid. p. 63-72. And see 1 Hoffm. Ch. Pr.
462-464.
I Amory v. Fellows, 5 Mass. 225, 226 ; Gilpins v. Consequa, 1 Pet. C. C.
R. 88. But Ld. Nottingham established a rule, that no alien should be exa-
mined as a witness, without a motion first made in Court to swear an inter-
preter, so that the other side may know him and take their exceptions to
him. 2 Swanst 261, n. When a commission is sent abroad, it is usual to
insert a special direction to employ an interpreter, if necessary. Ld. Bel-
more V. Anderson, 4 Bro. Ch. C. 90. But this is superfluous ; especially if
they are authorized, in general terms, to examine such, or such other, wit-
nesses, as may come before them ; for the interpreter is a witness. 5 Mass.
226.
> Ld. Belmore v. Anderson, 4 Bro. Ch. C. 90 ; 2 Cox, 88, S. C. ; 2 Dan.
Ch. Pr. 1063, 1088 ; Gresley, Eq. Evid. 119. Smith r. Kirkpatrick, 1 Dick.
103. At law, a deposition, taken abroad, is admissible, though it be written,
signed, and sworn in a foreign language, and some weeks afterwards trans-
lated and certified under oath by the interpreter ; the translation being an-
nexed to and returned as part of the return to the commission. Atkins v.
Palmer, 4 B. & Aid. 877. No good reason is perceived why it should not
be equally admissible in Equity.
3 See Story, Eq. PI. ^ 300 - 806 ; Ante, Vol. 1, ^ 324, 325.
* See ante^Yol 1, § 320-825. See, also, Gresley Eq. Evid. 129-135 ;
3 Monthly Law Beporter, 256.
322 LAW OP BVEDBNCB. [PABT VI.
with as much particularity as the nature of this treatise will
permit, it will not, in this place, be farther pursued.
§ 326. In regard to the admissibility of depositions in
Equity, it is held, that where depositions, not legally entitled
to be read, are admitted bp consent of parties, this consent is
co-extensive with the cause, and under it the depositions may
be read at every future hearing of the same cause, whether it
be in the higher Court, on appeal, or in the same Court, after
the decree has been reversed in the appellate Court, and the
cause remanded for farther proceedings.^ And depositions,
read at the hearing, are also admissible in evidence on the
trial of an issue out of Chancery.^ If they have once been
read without objection, in the Court below, this is evidence of
consent, entitling them to be read in the higher Court, on
appeal.^ The deposition of the party himself, in a bill of re-
vivor, taken before the death of the original complainant, and
while the deponent had no interest in the suit, is evidence for
him at the final hearing.^ So, if the deposition of the plaintiff
is taken under an order obtained by the defendant, it is admis-
sible in evidence for the plaintiff, though it goes to support
his case.^ But if the deponent becomes interested in the
subject of the controversy during the period between the
beginning and the end of his examination, that portion of
his testimony which was given before his interest com-
menced, may, in the discretion of the Court, be received, if it
be complete and distinct as to the matters of which he
speaks ; and every part of his answers, as to matters to which
his interest does not relate, will be received.^ But no depo-
1 Vattier v. Hinde, 7 Pet 152 ; Hlnde v. Yattier, 1 McLean, 110.
9 Austin V. Winston, 1 Hen. & Munf. 83.
S Johnson v, Bankin, 3 Bibb, 86 ; Gibbs v. Cook, 4 Bibb, 5S5.
4 Hitchcock V. Skinner, 1 Hofifm. Ch. B. 21 ; Brown v. Greenley, 2 Dick.
504.
5 Lewis V. Brooks, 6 Yerg. 167.
0 O'Callaghan v. Murphj, 2 Sch. & Lefr. 158 ; Fream v. Dickinson,
3 £dw. Ch. B. 300 ; 2 Dan. Ch. Pr. 1064. And see ante, Vol. 1, ( 168 ;
PART YI.] SOXJBCES, MEANS AND INSTRUMENTS OF EVIDENCE. 323
siiion will be admitted to be read, against a party brought in
after it was taken, or too late to exercise the right of cross-
examination.^ Depositions taken in another suit, between the
same parties or their privies in estate, may also be read at
the hearings after an order obtained for that purpose.^
§ 327. The mles and principles, by which the examin-
ation of witnesses is conducted in Eqnity, are in general the
same which have been stated in a preceding volume as ap-
plied in Courts of Law; and therefore require no farther
notice in this place.^
5. INSPECTION IN AID OF PROOF.
§ 328. Trial by inspection, or personal examination of the
subject of controversy, by the Judge, was anciently familiar
in the Courts of Common Law ; * and though, as a formal
and distinct mode of trial, it has fallen into disuse, yet as a
matter of proof, ancillary to other testimony, parties are still
permitted, in all our tribunals, to exhibit to the Court and
Jury, persons, models, and things not cumbrous, whenever
the inspection of them may tend to the discovery of the truth
of the matter in controversy. In Courts of Law, however,
this is only permitted, or, at farthest, sometimes suggested by
the Judge ; it being seldom, if ever, ordered ; but in Courts
of Equity, the Judge will often order the production of such
subjects before him, for his own better satisfaction as to the
Gresley, £q. Eyid. 866, 367 ; Haws v. Hand, 2 Atk. 615 ; Gosso v. Tracy,
2 Vem. 699 ; 1 P. Wms. 287, S. C. ; Cope v. Pany, 3 Jac. & Walk. 688.
1 Jones V, Williams, 1 Wash. 280 ; Claiy v. Grimes, 12 G. & J. 31 ; Jen-
kins V. Bisbee, 1 £dw. Ch. R. 877. And see ante^ Vol. 1, ^ 426, 554;
Pretty v. Parker, 1 Cooper, 88, n.
s 2 Dan. Ch. Pr. 1011 - 1016 ; Brooks v. Cannon, 2 A. E. Marsh. 525 ;
AnUy Yol. 1, $ 528, 525, 552, 553.
3 See ante, Yol. 1, ( 481-469. See, also, 2 Dan. Ch. Pr. 1045- 1051.
4 3 BL Comm. 881 ; 9 Co. 80.
324 LAW OF BVIDENCB. [PABT VI.
truth. Thus he will order an infaini, to be produced in Court,
for satisfactory proof of his existence, age, and discretion ; or
an original document^ or book^ to be satisfied of its genuine-
ness and integrity, or its age and precise state and character;
or the like.^ And where the subject is immovable, the Court
will order the party in possession to permit an inspection by
witnesses.^
§ 329. But it is in bills of injunction, to restrain the viola-
tion of patent-rights and copy-rights^ that this power of a
Court of Equity is most frequently called into exercise. In
the case of patents, nothing is more familiarly seen than the
machine or instrument itself, or an accurate working model,
under inspection at the hearing. But in these cases it is not
unusual, and in those of copy-rights it is almost the invariable
course to refer it to a master or other competent person, who
for this purpose represents the Court, to compare critically
the machine, map, book, work of art, or invention, claimed
as original, with that which is alleged to be piratical and spu-
rious, and to report their opinion to the Court ;^ though in
cases easily capable of decision upon a brief inspection, with-
out too great a demand upon the time of the Judge, he will
examine and decide for himself.^
6. FUBTHER INFORMATION REQUIRED BY THE COURT.
§ 330. The right of the Judge to require further proof upon
any point under his consideration, without the motion and
1 Gredey, Eq. Evid. 451 - 454 ; Comstock v, Apthorpe, 8 Cowen, S86 ;
1 Hopk. Ch. R. 143, S. C. And see Louisiana^ Code of Practice, Ait 139.
8 Kynaston r. E. Ind. Co. 8 Swanst 249.
8 Gyles V. Wilcox, 2 Atk. 141 ; Caman v. Bowles, 2 Bro. Ch. C. 80;
Leadbetter's case, 4 Yes. 681 ; Mawman t;. Tegg, 2 Buss. 885 ; Giay r. Rus-
sell, 1 Stoiy. R. 1 1 ; 2 Story, Eq. Jur. ^ 941.
^ Butterworth v, Robinson, 6 Yes. 709 ; Sheriff v* Coates, 1 Buss. & My.
169 ; Ex parte Fox, 1 Y. & B. 67.
PABT YI.] SOUBCES, MSAKS AND INSTBTmKKTS 07 BYIDBNCE. 325
even against the will of the parties, is pecaliar to Conrts pro-
ceeding according to the coarse of Chancery. At Common
Law, no such power is recognized ; the courts being obliged
to try and determine the issue, upon such proofs as the par-
ties may choose to produce before them, the Jury finding the
fact forthwith, according to the balance of the evidence in
favor of the one side or the other. But in Chancery, the
Judge may not only postpone his judgment, but if he deems
the evidence unsatisfactory, or is unable to solve the question
upon the proofs already in the case, or from his own re-
sources, he may require further information. This right of
the Judge is inherent in his office, and does not depend on
any consent of the parties, nor whether the matters of which
he would inquire have been put in issue by the pleadings.
It may even be matter which both parties would fain conceal
from his notice; as in the case supposed by Sir Thomas
Plumer, M. R., of a bill for the specific performance of a con-
tract for the purchase of a cargo, which, in the course of the
evidence, would appear to have been smuggled ; or where
the principal transaction involved another which was illegal;^
or, it may be matter possibly affecting the interests of persons
not before the Court.
§ 331. One of the modes in which this right is exercised,
is by examining witnesses vivd vocCj in open Court. Ordi-
narily, as we have seen, this course is not resorted to, except
for the formal proof of exhibits. But it is employed in cases
of contempt;^ and in questions as to the proper custody of a
ward ; ^ and in other cases of emergency, immediately address-
ed to the discretion of the Judge, or upon which he entertains
doubt.*
1 Parker ». Whitby, T. & R 871.
s Moore o. Aylett, Dick. 643 ; Gftscoygne's case, 14 Yes. 188 ; Tomer v.
Bnrieigh, 17 Yes. 854.
8 fiates, exparU^ Gresley, £q. Evid. 494.
^ Bishop V. Charch, 2 Yez. 100, 106 ; Lord, ex parte, Id. 26 ; Banks v.
Fsrques, AmbL 145. And see 4 Yes. 762, per Ld. AWanley, M. R.;
VOL. m. 2S
326 LAW OF EYIDENOB. [PABT YI.
§ 332. Another of these modes is by reference to a Master^
his office being a branch of the Court, whose instractionsi
therefore, he is bound implicitly to follow.^ The subjecta of
such reference, which are numerous, may be distributed
under three general heads, namely, the protection of absent
parties against the possible neglect or malfeasance of the
litigants; — the more effectual working out of details, which
the Judge, sitting in Court, is unable to investigate ; — and
the supplying of defects or failures in evidence.^ But a refer-
ence is never made to establish, in the first instance, a fact
put in issue by the pleadings, and constituting an essential
element in the controversy.'
§ 333. The authority of the master ^ which, by the former
practice was generally stated in every order of reference, is
now given, in the Courts of the United States, by a general
rule for. that purpose.^ This rule directs, that the master
shall regulate all the proceedings, in every hearing before
him, upon every such reference; that he shall have full author-
ity to examine the parties in the cause upon oath, touching
all matters contained in the reference ; ^ and also to require
Barnes o. Stuart, 1 Y. & C. 139, per Aldeison, B. ; MaigareBon v. Sazton,
Id. 582.
1 Stewart v. Turner, 8 £dw. Ch. R. 458 ; Fenwicke v, GIbbes, 2 Dessaus.
629 ; Smith v, Webster, 8 M7. & C. 804. Hence also, a witness before the
master is protected from arrest, eundo^ morando, et redeundo* Sidgier v.
Birch, 9 Yes. 69.
2 Adams Doctr. of £q. p. [879] 672.
3 Lunsford v, Bostion, 1 Dev. £q. B. 483 ; Holdcn v. Heam, 3 Mj. k EL
445.
4 Rules for Circuit Courts in Equity, Beg. 77.
5 In accounting before the master, the oath of the party is not to be ad-
mitted as evidence to support items in an account, which, from their charac-
ter, admit of full proof by vouchers, or other legal evidence. H*rHmg 9.
Handy, 11 Wheat 108, 137. As to (he master^s power to examine parties,
see Seaton on Decrees, 11 ; 2 Dan. CL Pr. 1860, 1866 ; Hollister «. Baik-
ley, 11 N. H. 501. Parties may be examined ioties quoHes^ at the discretion
of die master ; but witnesses may not, without an order. Cowdade v. Corn-
ish, 2 Yeas. 270; Hart v. Ten Eyck, 2 Johns. Oh. 618. But a Mva voce ex-
PABT VI.] SOUECBS, MEANS AND INSTRUMENTS OP BVIDBNCB. 327
the production of all books, papers, writings, vouchers, and
other documents applicable thereto;^ and also to examine
on oath, vivd voce^ aU witnesses produced by the parties be-
fore him, and to order the examination of other witnesses to
be taken, under a commission to be issued upon his certifi-
cate from the clerk's office,^ or by deposition according to
the acts of Congress, or otherwise, as hereafter mentioned ;
and also to direct the mode in which the matters requiring
evidence shall be proved before him ; and generally, to do all
other acts, and direct all other inquiries and proceedings, in
the matters before him, which he may deem necessary and
proper to the justice and merits thereof, and to the rights of
the parties. This summary of his powers, in a general rule
made under the authority of an act of Congress, renders any
special enumeration of powers in an order of reference wholly
superfluous. And the course of proceeding here indicated,
as well as the authority given to the master, is believed to be
amination of tlie party does not alter his rights ; and therefoze he cannot be
cross-examined by his own counsel ; but his answers, when responsive, are
testimony, and he may i^pcompany an answer by any explanation, &irly
responsiye to the interrogatory. Benson v. Le Boy, 1 Paige, 122. Bega-
larly, a special order is necessary, to empower the master to examine the
parties ; but if this is omitted in die order of reference, and the master nev-
ertheless examines a party on oath, without objection at the time, this is no
ground of exception to the report Copeland v. Crane, 9 Pick. 78. Before
the master, co-defendants may examine each other ; Simmons v, Gutteridge,
18 Yes. 263 ; but it seems that co-plaintiffs may not Edwards o. Goodwin,
10 Sim. 123. An examination, like an answer, u evidence against none but
the party examined. 2 Dan. CL Pr. 1878 ; 2 Smith, Ch. Pr. 185.
1 See £ng. Orders of 1828, Ord. 60, 72.
s See Eng. Orders of 1828, Ord. 69 ; Bamford v. Bamford, 2 Hare, 642 ;
Adams, Doctr. of Equity, [882,] 678. It has been doubted, whether, nnder
the English Order just referred to, which is substantially the same with the
clause in the text, tiie master could, without an order, examine any witness
viv6i voce, who had previously been examined in the cause ; but in one case
the Master of the Bolls seems clearly to have recognized the rule, that an
order was necessary for a re-examinadon before the master, as well as for a
re-examination before the hearing. 3 Dan. Ch. Pr. 1894 ; Bowley t^ Ad*
ams, 1 My. & £. 548.
328 LAW OP BVIBBNCE. [PABT VI.
in accordance with the general coarse of practice in the State
tribunals.
§ 334. Witnesses^ who live within the District, may, npoa
due notice to the opposite party, be summoned to appear be-
fore the commissioner appointed to take testimony, or before
a master or examiner appointed in any cause, by subpcma^
issued in the usual form by the clerk of the Court ; and if a
witness disobeys the subpasna, or refu^s to give evidence, it
will be deemed a contempt of the Court, which being certi-
fied to the clerk's office by the comn^issioner, master, or exa-
miner, an attachment may issue by order of the Court or of
any Judge thereof, in the same manner as if the contempt
were by refusing to appear or to -testify in the Court.^
§ 335. In taking' accounts^ any party, not satisfied with
the account brought in against him, may examine the ac- .
courUing party vivd voce^ or upon interrogatories in the mas-
ter's office, or by deposition, as the master may direct.^ All
nffidavUs^ depositions, and documents, which have been pre-
viously made, read, or used in Court upon any proceeding in
the cause, may be used before the master ; ^ and he may exa-
mine any creditor or other person coming in to claim before
him, either upon written interrogatories, or vivd voce, or in
both modes, as the nature of the case may seem to require ;
the testimony, thus given, being taken down in writing by
the master, or some other person by his order and in his pre-
sence, if either party requires it, in order that it may be used
in Court, if necessary.*
^ Rules for Circuit Courts in Equitj, Reg. 78.
' s Idem. Reg. 79. And see Eng. Orders of 1828, Ord. 61.
3 Idem. Reg. 80. And see Eng. Ord. of 1828, Ord. 65 ; 2 Dan. Ch. Pr.
1379; Smith v. Althus, 11 Yes. 564. But the answer of one defendant
cannot be used before the master, as an affidavit, against another defendant.
Hoare v, Johnstone, 6 K^en, 55S. Nor can ex parte affidavitB ordinarilj be
used before him. Cumming v, Waggoner, 7 Paige, 603.
4 Idem. Reg. 81. And see Eng. Ord. of 1828, Ord. 72 ; 2 Dan. Ch. Fr.
PART yi.] SOURCES, MEAKS AND INSTRUMENTS OF EVIDENCE. 329
§ 336. In the examination of witnesses before the master,
it II not competent for him to examine as witnesses any per-
is 79. The subject of examinations before a master was fully considered by
the learned Chancellor Kent, in Bemsen v. Remsen, 2 Johns. Ch. 495, 600-
502, where the result of his investigation is stated in these words: — " The
general rules which are to be deduced from the books, or which ought to
preTail on the subject of examinations before the master, and which appear
to me to be best calculated' to unite conyenience and despatch with sound
principle and safety, are,
" 1. That the parties should make their proofs as full, before publication,
as the nature of the case requires or admits of, to the end that the supple-
mentary proofs, before the master, may be as limited as the rights and
responsibilities of the parties will admit
" 2. That orders of reference should specify the principles on which the
accounts are to be taken, or the inquiry proceed, as fiur as the Court shall
have decided thereon ; and that the examinations before the master should
be limited to such matters within the limits of the order, as the principles of
• the decree or order may render necessary.
** 8. That no witness in chief, examined before publication, nor the par-
ties, ought to be examined before the master, without an order for that pur-
pose, which order usually specifies the gubject and extent of the examina-
tion ; and a similar order seems to be requisite when a witness, once exa-
mined, is sought to be again examined before the master, on the same mat-
ter. But it is understood to be the settled course of the Court, 1 Yem. 283,
anon; 1 Vem. 470, Witcherly v, Witcherly; 2 Ch. Cas. 249, Ererard v.
Warren ; Mosely, 252, Morely v. Bonge ; Bobinson v. Cumming, 2 Atk.
409, and 2 Fonb. 452, 460, 461, 462, (see, also, O'NeU v. Hamill, 1 Hogan,
183,) that upon the defendant accounting before the master, he is to be al-
lowed, on his own oath, being credible and uncontradicted, sums not exceed-
ing forty shillings each ; but then he must mention to whom paid, for what,
and when, and he must swear positively to the fiict, and not as to belief
only, and the whole of the items, so established, must not exceed £100, and
the defendant cannot by way of charge, charge another person in this way.
The forty shillings sterling was the sum established in the early history of
the Courts and, perhaps, twenty dollars would not now be deemed an unrear
sonable substitute.
" 4. That the master ought, in the first instance, to ascertain from the par-
ties, or their counsel, by suitable acknowledgments, what matters or items
are agreed to or admitted ; and then, as a general rule, and for the sake of
precision, the disputed Uems claimed by either party ought to be reduced to
writing by the parties, respectively, by way of charges and discharges, and
the requisite proofs ought then to be taken on written intenogatories, pre*
pared by the parties, and approved by the master, or by vivd wee examini^
tion, as the piurties shall deem most expedient, or the master shall think pio-
28 •
330 LAW OF EVIDBNCB. ' [PABT VI.
sons who have previtmsly been examined in the cavse^ without
leave of the Court. This rule is founded on the same reason
which precludes the re-examination of a witness before the
hearing, namely, the danger of perjury, which might be in-
curred from allowing a witriess to depose a second time to
the same facts, after the party adducing him has discovered
the weak parts of the proof in his cause. And for the
same reason, when leave is granted for the re-examination of
a witness before the master, it is generally granted on the
terms of having the interrogatories settled by the master;
who, in so doing, will take care that the witness is not re-ex-
amined to the same facts.^ But where the reason of the role
fails, the rule is not applied ; as, for example, where the first
per to direct, in the giTen case. That the testimony maj be taken in ihe
presence of the parties, or their counsel ; (except when by a special order of
the Court it is to be taken secredy ;) and it ought to be reduced to writing,
in cases where the master shall deem it advisable, by him, or under his
direction, as well where a party as where a witness is examined.
*' 5. That in all cases where the master is directed by the order to report
the proofs, the depositions of the witnesses should be reduced to writing by
the master, and subscribed by the witnesses, and the depositions returned
with his report to the Court
" 6. That when an examination is once begun before a master, he ought, om
assigning a reasonable time to the parties, to proceed, with as little delay
and intermission as the nature of the case will admit o£^ to the conclusion of
the examination, and when once concluded, it ought not to be opened f<v
further proof, without special and very satisfactory cause shown.
" 7. That after the examination is concluded, in cases of reference to take
accounts, or make inquiries, the parties, their solicitors, or counsel, afler be-
ing provided by the master with a copy of his report, (and for which the
rule of the 1st of November last makes provision,) ought to have a day
assigned them to attend before the master, to the settling of his report, and
to make objections, in writing, if any they have ; and when the report is
finally settled and signed, the parties ought to be confined, in their excep-
tions to be taken in Court, to such objections as were overruled or disallowed
by the master." This outline of practice is believed to be pursued in all the
States, where it is not otherwise regulated by special rules.
1 2 Dan. Ch. Pr. 1883, 1384 ; Vaughan v. Lloyd, 1 Cox, 812 ; Whitaker
t;. Wright, 2 Hare, 821 ; Sawyer v. Bowyer, 1 Bro. Ch. C. 388, and cases
cited in Perkins's note. Jenkins v. Eldredge, 8 Story, R. 299, 808, 809 ;
Gafis o. Stinson, 2 Sumner, 605.
PART YI.] SOURCES, MEA^S AND INSTRUMENTS OF EVIDENCE. 331
•
examination has accidentally failed, by reason of the witness
having then been incompetent, from interest, which has since
been removed.^ So, where a witness, previously examined,
has made affidavit in support of a state of facts before the
master, he may be examined vitd voce before the master, to
the matter of his affidavit.^ So, where the previous exami-
nation was confined to the proof of exhibits at the hearing, he
may be examined before the master, in proof of other exhi-
bits.^ But if a witness, who has once been examined to the
matters in issue, is re-examined before the master, without a
special order ; though the re-examination be to matters not
before testified to by him, it is an irregularity, and has been
deemed a sufficient cause for suppressing the second deposi-
tion.* To the case of witnesses who have not already been
examined, this rule requiring a special order is now generally
understood not to apply ; for it is said, that] where a case
is sent to a master for inquiry into a fact, it is in the nature
of a new issue joined ; and what would be evidence in any
other case upon that issue, is evidence before the master ; the
evidence already in the cause, upon the same matter is ad-
missible before him, and other witnesses, to the matter
referred, may also be examined as of course.^ But the rule
1 Sandford r. , 1 Ves. 398 ; 3 Bro. Ch. C. 370, S. C. ; Callow v.
Mince, 2 Yem. 472.
2 2 Dan. Ch. Pr. 1385 ; Rowley v. Adams, 1 My. & K. 643.
3 Ibid. Courtenay v. Hoskins, 2 Buss. 253.
4 Smith V. Graham, 3 Swanst. 264. But the suppression was made withr
out prejudice to any application for the re-examination of the witness. And
see Greenaway v. Adams, 18 Ves. 360; Vaughan r. Lloyd, 1 Cox, Ch. C.
312. See, also, Jenkins r. Eldridge, 3 Story, R. 299, 808, 309, where the
general rule was reviewed and acted upon, by Stoiy, J. But where the
examination before the master was confined to points collateral to the mat-
ters in issue at the hearing, it has recently been held that an order was not
a necessary pre-requisite. 1 Hoffm. Xlh. Pr. 538 ; Swinford v. Home,
5 Madd. 879. And such, it seems, had been the practice, for more than
a century ; as appears from Medley v, Fearce, West, R. 128, per Ld. Hard-
wicke.
5 Smith V. Althus, 11 Yes. 664; Hough v. Williams, 3 Bro. Ch. C. 190 ;
Gass V. Stinson, 2 Sumn. 605, 612. But see Willan v. Willan, 1 Cooper,
Ch. C. 291 ; Hoffman's Master in Chancery, 45, 46.
332 LAW OF EVIDENGE. [PART VI.
does apply to the re-examination of witnesses who have once
been examined before the master, to the same facts, it being
held irregular, except upon a special order.^
§ 337. A third mode in which the Court obtains farther in-
formation for itself, is by sending a feigned issue to a Court
of Law, for trial by a Jury, It will be recollected, as we
have already seen, that according to the doctrine of Equity,
the facts are finally found by the Chancellor, and that, of
course, all the subordinate means of ascertaining them, and
verdicts among the rest, are used only for his information, and
not imperatively to govern and control his judgment.
Hence it is, that it is competent and usual for him to order
the terms on which the trial shall proceed, and what evidence
the parties shall respectively admit or adduce.^ Thus, in
directing an issue, the Court will, in its discretion, order the
parties to make such admissions as it thinks are necessary to
raise the question to be determined ; that they produce at the
trial, any books, papers, and documents, in their possession,
power or control, which it may deem useful for a full investi-
gation of the matter in issue, and which, as we have hereto-
fore seen, it may order in the principal cause ;® and that wit-
1 Remsen v. Bemsen, 2 Johns. Ch. 500 ; Cowslade v. Cornish, 3 Yez.
270.
3 Wliether, in such case, the parties ought to be deprired of the use of
any legal evidence, gucere ; and see Beachinall v. Beachinall, 1 Yem. 246.
In this case Lord Nottingham, in directing a trial at law, ordered that a cer-
tain deed should not be given in evidence ; and for this cause, on review,
the Ld. Keeper reversed the decree. In Apthorp v. Comstock, 2 Paige, i83,
where.the genuineness of a deed was in question, the Chancellor, in directing
an issue, ordered, that the proof of the execution of the deed, taken before
the commissioner, prior to itfl registration, and which entitled it to be read
at law, should not be received at the trial as any evidence of the execution
of the deed, or of the genuineness of any of the signatures upon it ; to which
order no exception was taken. And in Elderton v. Lack, 2 Phil. R. 680,
it was held, that where the plaintLOT's title to relief in Equity depended on a
legal right, the Court ought not to interfere with the trial of that right in a
Court of Law, by requiring the defendant to admit any fact upon which that
right depended. And see Smith v. E. of Effingham, 10 Beav. 589.
3 See supra, ^ 295 - 307.
PABT VI.] SOUROSS, MEANS AND INSTBUMBNTS OF EYIDENCB. 333
nesses who have deposed in the cause may be examined
vivd vocCy or their depositions read at the trial ; that new
witnesses shall not be adduced, without sufficient previous
notice of their names, residences, and additions, to enable
the other party to ascertain their character. The Court will
also, in its discretion, designate which party shall hold the
affirmative of the issue ; will order that the trial be by a
struck jury, if either party desire it, and the justice of the case
so requires ; and will impose such restrictions upon the par-
ties as will prevent all fraud or surprise, on the trial.^
§ 338. Whether the Court, in directing an issue, has a
right to order the parlies themselves to be examined^ without
their consent, is a question upon which there appears to have
been some conflict of opinion. It is agreed that this may be
done where the parties are merely nominal or fiduciary.
Where the facts in dispute rest only in the knowledge of the
parties ; or where oath is so balanced by oath that it is pro-
per for a Jury to weigh their credit, as, for example, where an
injunction is asked for upon the affidavit of one party and
opposed upon that of another, and an issue is in consequence
directed, it is also considered proper that both the parties
themselves should be examined. In such cases they are not
considered as witnesses for themselves, or for each other, but
as witnesses for the Court, to satisfy its own conscience.^
In other cases, such examinations have been refused, unless
by mutual consent, and subject to the discretion of the Court ;^
and even then, it has been observed, the practice of allowing
parties to be examined for themselves is to be resorted to
with great caution ; and never, unless, under the peculiar cir-
1 2 Dan. Ch. Fr. 1896, 1297. See Apthorp v. Comstock, 2 Paige, 482,
485, for a precedent of the exercise of this power of directing the course of
the trial, mentioned in the text
9 De Tastet r. Bordenave, 1 Jac. R. 516 ; Dister, ex partem Buck's Cas.
284. And see Hepworth v. Heslop, 6 Hare, 622 ; 13 Jur. 384 ; 2 Dan. Ch.
Pr. 1298 ; 1 Hoffm. Ch. Pr. 605, 606 ; Fletcher v. Glegg, 1 Young, 345.
3 Howard v. Braithwaite, 1 Y. •& B. 374 ; Gardiner v. Bowe, 4 Madd.
236 ; Hepworth v. Heslop, supra.
334 LAW OF EVIDEFCB. [PABT TL
camfltances of the case, justice conld not be attained without
it : and certainly never, when, from the position of the par«
ties, an unfair advantage would be given by it to one over
the other. Thus, where the fact in issue appeared to have
occuned in the presence of only the plaintiff and a late part-
ner of the defendants, who was since dead, an examination
of both parties was held improper, as calculated to give tiie
plaintiff an undue advantage.^ The order for the examin-
ation of a party does not affect the character or weight of his
evidence ; it only removes the objection which arises from
his being a party in the cause.^
§ 339. According to the course of the Court of Chancery, the
trial of an issue directed to a Court of Law is generally con-
ducted in the same manner and by the same rules as are ob-
served in other trials at law ; unless the Court of Chancery,
in ordering the issue, has given different directions. In those
States, however, in which a trial by Jury, in cases in Equity,
may be claimed as of rights it is conceived that, in the ab-
sence of any statute expressly or by clear implication em-
powering the Court to impose terms on the parties, or to
interfere with their legal rights in regard to the course of pro-
ceeding in the trial, no such power could lawfully be exer-
cised.^ But where no such right of the parties exists, this
power of the Court remains, as long recognized in Chancery
proceedings in England, with the modifications which have
been adopted here, in our State tribunals, or created by sta-
1 Ftoker v. Morrell, 2 FhiL R. 453 ; 12 Jur. 253.
* RogerBon v. Whitington, 1 Swanst 39.
3 In Manton v. Brackett, 9 N. Hamp. 886, 845, die right exercised by
the Court seems clearly to have been derived from the statute. Hie prac-
tice on this point, in the different States, is various and unsettled. But where
the right of the party to a trial by Juiy is absolute and uncontrolled by any
constitutional or statutory limitation, it is conceived that the power of the
Court, as a Court of Chancery, to modify the exercise of the right is taken
away. It is only where the trial depends on the pleasure of the Court, that
the course of proceeding can be thus Modified. Cujus est dare^ eju» est dis-
poneie.
PART VI.] SOTJBOSS, MEANS AND INSTRUMENTS OF EYIDENGE. 335
tates. Bat where the devisee in a will seeks to establish it
against the heir, the invariable course of Chancery requires
that the due execution of the will should be proved by the
examination of all the attesting witnesses who are in exist-
ence and capable of being examined; and that the same
course be pursued upon the trial of an issue of devisavU vel
non ; except in the cases where, by the rules of evidence in
Courts of law, their production may be dispensed with. For
as a decree in support of the will is conclusive upon the heir,
against whom an injunction would be granted, if he should
disturb the possession after the decree, it is held to be reason-
able that he should have the opportunity of cross-examining
all the witnesses to the will, before his right of trying the title
of the devisee is taken from him.^
7. EVIDENCE ALLOWED ON SPECIAL ORDER.
§ 340. Another mode in which a Court of Chancery, in
the exercise of its discretion, and to do complete justice and
equity upon the merits, will administer the law of evidence
by more flexible rules than are recognized in the Common
Law, is apparent in the allowance of evidence upon special
order ; which is done, either by admitting some kinds of evi-
dence which it would be inconvenient and uwrecksonably expen-
sive to produce in the regular way ; or by permitting the par-
ties to supply defects and omissions of proof and to give ex-
planatory evidence^ at later stages in the cause than the ordi-
nary rules will allow. One instance, of the former class, is in
the admission of vivd voce testimony, in the proof of exhibits
at the hearing, instead of requiring proof by depositions, in
the ordinary course ; a subject which we have already con-
sidered, in another connection.^ Another case of the same
^ See anie^ Vol. 2, ^ 694, and the cases there cited. See, also, McGregor
«. Topham, 8 H. L. Cas. 132.
» SuprOf ^ dOS - 810, 819.
336 liAw OF BviDimcB. [part VI.
class, was where the vouchers in support of an acQpnnt were
impounded in the Ecclesiastical Court, which does not give
up any thing once impounded ; and the expense of having
the officer to attend the master would be considerable ; in
which case the Lord Chancellor directed the master to allow
items upon vouchers, which it should be verified by affidavit
were so impounded.^ On the same principle, an account,
kept forty-nine years ago, by a person since deceased, was
ordered to be received by the master as primd facie evidence
of the particular items in the account to be taken by him
pursuant to the prayer of the bill ; throwing on the other side
the burden of impeaching them.^
§ 341. Upon special order, the Court will permit the par-
ties to read, at the hearing, any answers^ depositions^ or
other proceedings^ taken in another catisej and this without
requiring a foundation first to be laid, by proving the bill and
answer in the cause in which the depositions or other subse-
quent proceedings were taken. Complete mutuality or iden-
tity of all the parties, has been shown, in a previous volume,
not to be necessary; it being sufficient if the point or matter
in issue were the same in both cases, and the party against
whom the evidence is offered, or those under whom he
claims, had full power to cross-examine the witnesses.* Nor
is it necessary to this end that the parties to the present suit,
1 Nielson v. Cordell, 8 Ves. 146.
9 Chalmer v. Bradley, 1 Jac. & Walk. 65.
8 Ante^ Vol. 1, ^ 522, 523, 536, 55S. And see Eade v. Lingood, 1 Aik.
204 ; Coke v. Fountain, 1 Yem. 413 ; Nevil v. Johnson, 2 Yern. 447 ; Mack-
TTorth V. Penrose, 1 Dick. 50; Humphreys t;. Pensam, 1 My. & C. 580 ;
Boberts v. Anderson, 3 Johns. Ch. 371, 376 ; Dale v. Rosevelt, 1 Paige, 85 ;
Payne v. Coles, 1 Munf. 373 ; Harrington v. Harrington, 2 How. 701 ; Atto.
Gen. V. Davison, McCl. & Y. 160. Where suits between several parties,
who are not the same in each suit, are consolidated and tried at once, by
mutual agreement, it seems that depositions taken in one of the suits may be
admitted on the trial, against any of the parties, though they were not origi-
nal parties to the particular suit in which the deposition was taken. Smith
V.Lane, 12 S.&R. 80.
PART VI.] SOUKCES, MEANS AND INSTRUMENTS OF EVIDENCE. 337
or those whom they represent, should have sustained the rela-
tions of plaintiff and defendant in the former suit ; it is suffi-
cient that they were parties to the suit, though on the same
side. The reason for this was given by Lord Hardwicke, who
observed, that it frequently happens that there are several
defendants, all claiming against the plaintiff, and also having
different rights and claims among themselves ; and the Court
then makes a decree, settling the rights of all the parties; but
that a declaration for that purpose could not be made, if the
decree and proceedings could not afterwards be admitted in
evidence between the defendants ; and the objection, if al-
lowed, would occasion the splitting of one cause into several.^
§ 343. In regard to depositions taken in a cross-cause^ it is
requisite that the witnesses be examined before publication
in the original cause has passed, otherwise the depositions are
liable to be suppressed.^ But if the point in issue in both cases
is the same, and the depositions in the cross-cause were taken
before either party had examined witnesses in the original cause,
they may be read in the latter cause.^ And depositions taken
in the cross-cause, to matters not put in issue by the original
cause, may be read, notwithstanding they were taken after
publication had passed in the original cause.^ On the same
principle, where depositions, taken in an original cause, are
admitted to be read in a cross-cause, such parts only are ad-
missible as were pertinent to the issue in the original cause.^
§ 343. In the exercise of the same liberal discretion, evi-
dence taken in the Exchequer has been allowed to be read
I Askew V. The Poulterer's Co. 2 Vez. S9. But in such case the evi-
dence is not conclusive. Ibid. And see Chamlej v, Ld. Dunsany, 2 Sch.
& Lefr. 690, 710; 2 Dan. Ch. Pr. 1013.
> Pascal! v. Scott, 12 Sim. 550.
8 Wilford t;. Beaseley, 3 Atk. 501 ; 2 Dan. Ch. Pr. 1011 ; Christian v.
Wrenn, Bunb. 321.
*Ibid.
s Underhill v. Van Cortlandt, 2 Johns. Ch. 339.
VOL. III. 29
\
338 LAW OF EVIDENCE. [PART VI.
between the same parties, litigant in Cbancery.^ So, of an
examination in the Admiralty Court? And depositions, taken
by the defendant in a suit which was afterwards dismissed
by the complainant, may be read in a subsequent suit between
the same parties, for the same cause, where the same wit-
nesses cannot again be had.^ So, if a deposition, taken de
bene essey is read at the hearing when it might have been
effectually objected fo for irregularity, and an issue is after-
wards directed, it is of course to order it to be read at the
trial, notwithstanding the irregularity.^
§ 344. The evidence of parties and of interested vninesses
also, will sometimes be allowed on special order in Equity,
where it is found esssential in order to detect and reach a
fraudulent transaction^ or to discover the true and real intention
of a trust or use, declared in a deed. Thus, upon an allega-
tion that the defendant's title to the estate in question was
fraudulent^ the plaintiff was permitted to read the deposition
of Mrs. Haughton, the defendant's grantor, to impeach her
tide to the estate, and to show that it was only a pretended
title, done with no other view than to assist the defendant in
carrying on a fraud.^ So, a trustee^ having the legal interest
in the estate, but being merely nominal in every other respect,
may be examined as a witness in Equity, as to the merits or
intention of the trust title ; though it is otherwise at law.^
So, in the .case of a fraudulent abstracting of the plaintiff's
money or goods by the defendant, a Court of Equity will ad-
1 Magrath v, Yeitch, 1 Hog. 127. And see WiUiams v. Bioadhead,
1 Sim. 151.
« Watkins v. Fursland, Toth. 192.
3 Hopkins v. Strump, 2 H. & J. 801.
^ Gordon v. Gordon, 1 Swanst. 166. The deatli of the witnesses, or their
absence beyond the reach of process, seems to be requisite in such cases.
1 Swanst 171, n. Fry v. Wood, 1 Atk. 445 ; Coker v. Farewell, 2 P. Wins.
668; Canington v. Camock, 2 Sim. 567.
5 Man r. Ward, 2 Atk. 228.
6 2 Atk. 229, per Ld, Hardwicke.
PART VI.] SOURCES, MEANS AND INSTRUMENTS OP EVIDENOB. 339
mit the plaintiff's own oath as to the extent or amount of bis
loss, in odium spoliatoris ; while at law, this rule, though in
several cases it has been freely admitted, as a rule of necessity,
yet has sometimes been questioned.^ In directing an accownt^
also, the Court will sometimes direct it to be taken with the
admission of certain documents or testimonies, not having
the character of legal evidence. In cases of this sort, a dis-
tinction is made, upon the following principle, laid down by
Lord Eldon. If parties have been permitted, for a long
course of years, to deal with property as their own, consider-
ing themselves under no obligation to keep accounts as though
there was any adverse interest, and having no reason to be-
lieve that the property belongs to another, though it would
not follow that, being unable to give an accurate account,
they should keep the property, yet the account, in such case,
would be directed not according to the strict course, but in
such a manner as, under all the circumstances would be fit.
But, where both parties knew that the property was the sub-
ject of adverse claim, and those who desired to have the
rules of evidence relaxed had undertaken that there should
be no occasion for deviating from the strict rule, but that
there should be clear accounts, and that the other party should
have his property without hazard of loss from the want or
the complication of accounts, the case is then widely differ-
ent; and a previous direction to the Master to receive tes-
timony not having the character of legal evidence, would
introduce a most dangerous principle.^
§ 345. A more frequent occasion for a special order for the
admission of evidence out of course arises when such evidence
is necessary to supply defects or omissions in the proofs
already taken, and discovered before the final hearing. These
are either discovered and become material in consequence of
something unexpectedly occurring in the course of the pro-
1 Childrens v. Saxby, 1 Tern. 207. See Ante^ VoL 1, ( 348, and cases
there cited.
s Lupton V. White, 15 Yes. 44d.
340 LAW OP BVIDENCB. [PART VI.
ceedings ; ^ or they happened by accident, or from inadvert-
ence. In the former case, relief is usually given by leave to
file a supplemental bUl, or a bill of review, or a supplemental
answer, and to adduce evidence in its support. But the course
of the Court, as we have already had occasion to observe, re-
quires that, as far as practicable, the examination of every
witness should be taken at one sitting, and without interrup-
tion ; and that after the witness has signed his deposition,
and " turned his back upon the examiner," no opportunity
should be given for tampering with him, and inducing him
to retract, contradict, or explain away, in a second exami-
nation, what he has already stated in the first. This rule,
however, is not universally imperative ; for it seems that leave
to re-examine a witness, even before publication, will be
granted, whenever the grounds of the motion for that purpose
are such as would support an application for a bill of review ;
or, more generally speaking, that an exception to the rule will
be admitted, whenever the special circumstances render it
necessary, for the purposes of justice to make one.* But
generally, a special order for the re-examination of a witness,
for the purpose of supplying a defect in his former exami-
nation, will not be made until publication has passed in the
cause ; for the propriety of granting the application cannot
readily be seen, without inspecting the depositions already
taken. ^ Yet in special cases, where a clear mistake was
1 Where an old paper writing, material in the cause, was discovered after
publication, and was not provable, viva voce^ as an exhibit, leave was grant-
ed to prove it upon interrogatories and a commission. Clarke v, Jennings,
1 Anstr. 178. So, where two witnesses were relied upon to prove hand-
writing, but, on examination, both declared their disbelief of it, the party was
permitted to examine other witnesses to that point, since the previous exa-
mination furnished no reason why this should not be done. Greenwood v.
Parsons, 2 Sim. 299.
s 2 Dan. Ch. Pr. 1150 ; Cockerill v. Cholmeley, 3 Sim. SIS, 315 ; Bow-
ley V, Adams, 1 My. & K. 543, 545, per Sir J. Leach, M. R. And see Hallock
V, Snuth, 4 Johns. Ch. 650 ; Beach v. Fulton Bank, 3 Wend. 573, 580 ;
Hamersly r. Lambert, 2 Johns. Ch. 432 ; Gray v. Murray, 4 Johns. Ch. 412.
3 2 Dan. Ch. Pr. 1153. See, also, Ld. Abergavenny v. Powell, 1 Meriv.
PABT VI.] SOURCES, MEANS AND INSTRUMENTS OF EVIDENCE. 341
capable of specific correction by reference to documents and
other writings, this has been permitted, before publication ;
the-'f e-examination being restricted to that alone.^ The order
for the re-examination of a witness is always founded upon
one or the other of the grounds before mentioned, namely,
accident, or surprise ; and^he rule is the same, whether he is
to be re-examined before the hearing, or upon a reference to
the master, the reasons in both cases being the same.^
§ 346. Where depositions have been suppressed^ on account
of some accidental irregularity, either in the conduct of the
cause, or in the examination of the witnesses, the Court, in
its discretion, will permit a re-examination of the witnesses,
upon the original interrogatories, if they were proper, or upon
fresh ones, if they were not.' So, where the witness has made
a mistake in his testimony,^ or has omitted to answer some
parts of the interrogatories,^ oi the examiner has omitted to
take down or has erroneously taken down some part of his
answer ; • and in other like cases, where the defect of evidence
has resulted from accident or inadvertence ; leave to supply
the defect and correct the error, by a re-examination of the
witness, will be granted ; the re-examination being restricted
to the supply of the defect, or the correction of the error,
without re-taking any other parts of the testimony, unless the
entire original deposition has been suppressed.^ The ordi-
130, 131, per Ld. Eldon; Stanney v. Walmsley, 1 My. & C. 361, per Ld.
Gottenham.
i Eark v. Kiric, 13 Yefl. 2S0 ; Id. 285, S. C, per Ld. Erakine.
' Supra^ ^ 336.
3 2 Dan. Ch. Pr. 1147, 1148, 1150 ; Wood v. Mann, 2 Sumn. 316, 323.
And see Cnm v. Bowyer, 3 Swanst 357 ; Healey v, Jagger, 3 Sim. 494.
4 Byrne v, Frere, 1 MoU. 396 ; Tamer v. Trelawney, 9 Sim. 453.
5 Potts V. Cmtia, 1 Younge, 343.
8 Bridge V, Bridge, 6 Sim. 352 ; Kingston Tmstees v^ Tappen, 1 Johns.
Ch. 368. If the omission was through the culpable negligence or inattention
of the party or Ins counsel, a re-examination will be refused. Healey v. Jag-
ger, stipro; Asbee v. Shipley, 5 Madd. 467 ; Ingram v. Mitchell, 5 Yes. 299.
7 See Hood v. Pimm, 4 Sim. 101. ^ There is " (said the Yice-Chancellor
of England,) '* an abundance of cases to show that, uniformly, from the earli-
29*
342 LAW OF BVIDENCB. [PAKT VI.
nary method of showing to the Court the fact and circum-
stances of the mistake, is by the affidavit of the witness;
esUtimes, Courts of Equity have relieved against mere errors of examiners,
commissioners, witnesses, solicitors, and counsel, and, when there has been
an accidental defect in eyidence, have, before the hearing, at the hearing,
and at the re-hearing of a cause, allowed the defect to be supplied. In
Bloxton V. Drewit, (Prec. in Gha. 64,) an order was made to prove a deed
viva voce. It turned out that the attesting witnesses were deaid, and leave
was given at the hearing, to prove the deed. In Spence v, Allen, (Ibid.
493,) afler depositions had been suppressed, because they were leading,
which was the error of counsel, leave was given to file new interrogatories ;
and a similar leave was given in the case of Lord Arundel v. Pitt, (Amb.
585.) In the case of Griells v. Gansell, (2 P. W. 646,) a deposition had
been taken erroneously, by the examiner, or through mistake of the witness,
and leave was given to correct the mistake. And in two instances, in the
case of Kirk v. Kirk, (13 Ves. 280^285,) where witnesses had made mis-
takes, the mistake was corrected, in one instance, on the application of the
defendant, in the other, on the application of the witness. In Shaw v. Lind-
gey, (15 Ves. 880,) and in Ferry v. Fisher, (Ibid. 882,) there cited, the
Court relieved against the error of commissioners in taking depositions;
and, though it suppressed the erroneous depositions, directed the witnesses to
be examined over again. In Lord Cholmondeley v. Lord Clinton, (2 Mer.
81,) where the intention was to examine witnesses properly, and, by mistake
of the solicitor, an error happened, the Court relieved ; and Lord Eldon
said he was clear the Court had an undoubted right to rectify a mere slip in
its proceedings. Lord Eldon indeed says, in Willan r. Willan, (19 Ves.
590,) " After publication, previous to a decree, you cannot examine wit-
nesses further, without great difficulty, and the examination is generally con-
fined to some particular ftcts." But this shows Lord Eldon's opinion that
leave might be given in a proper case. In Wallace v. Hodgson, (3 Atk. 56 ;
1 Ruse. 526, note,) Lord Hardwicke, afler he had gone through the hearing
of a cause, postponed it, and gave leave to exhibit interrogatories to prove
the sanity of the testator. It appears, from the Beport, (2 Atk. 56,) that he
thought it a mere matter of form. In Bank v. Farquhanon, (Amb. 145 ;
S. C. 1 Dick. 167,) Lord Hardwicke, before the hearing of a cause, adjourn-
ed it, in order that a deed might be proved, which could not be proved
merely as an exhibit. In Sandford v. Paul, (8 Bro. 870,) Lord Thurlow,oa
motion before the hearing, where a mistake had happened, allowed a witness,
who had been examined, to be re-examined. In ihe Attorney-General v.
Thumall, (2 Cox, 2,) on motion at the hearing, leave was given to enter
into further evidence, so as to let in the copy of a will. In Walker o.
Symonds, (1 Mer. 87, n.) leave was given, on a re-hearing, to read exhibits
not proved at the hearing. In Cox o. Allingham, (Jac. 887,) upon petition,
PABT VI.] SOUECBS, MEANS AND INSTRUMENTS OF BVIDENCB. 343
but this may also appear from the certificate of the commis-
sioner or magistrate, or upon the face of the deposition, or
otherwise ; for the Court, when once it has knowledge of the
fact, will act upon it, in whatsoever manner that knowledge
may have been obtained.^
§ 347. Sometimes, in cases of a clear mistake, involving
only a verbal alteration, the Court, instead of ordering a re-
examination of the witness, mil permit the deposition to be
amended in open Court. This has been done, by the altera-
tion of a date, stated by the witness by mistake ;2 by the
correction of a mistake of the examiner ; ^ especially where
the witness was aged and very deaf;* where the name of the
party defendant was mistaken in the interrogatories ;^, and in
afler the hearing, leare was giyen to enter into new evidence as to the loss
of » deed, so as to let in evidence of a copy. In Moons v. De Bernales,
(1 Russ. 307,) and Abrams v. Winshup, (1 Buss. 526,) upon application in
the course of the hearing, leave was given to enter into further evidence as
to the death of a person and the sanity of a testator ; and in Williams r.
Goodchild, (2 Russ. 91,) Lord Eldoa expressed an opinion that, on a re-
hearing, upon special application, new evidence might be received. In Wil-
liamson V. Hutton, (9 Price, 187,) the Court of Exchequer permitted a re-
hearing on the ground of new Evidence, discovered since the hearing, and
gave leave, not merely to prove exhibits vivd voce, but to exhibit interroga-
tories to prove them. In Coley v. Coley, (2 You. & Jerv. 44,) the Chief
Baron, when the cause was set down for hearing, gave leave, on motion, to
examine two further witnesses to a will, when one only had been examined ;
and though in Wyld v. Ward, (2 You. & Jerv. 381,) he would not allow
proof of the lease, at the re-hearing, unless it could be proved as an exhibit,
his reason seems to have been that he thought the omission to prove it at the
hearing, arose from mere neglect, not accident, but blamable neglect" 4 Sim.
110-113.
^ Shaw V. Lindsey, 15 Yes. 881, per Ld. Eldon. And see Kirk v. Kirk)
13 Ves. 285.
a Rowley v. Ridley, 1 Cox, Ch. C. 281 ; 2 Dick. 677, S. C.
3 Griells v. Gansell, 2 P. Wms. 646. And see Ingram v. Mitchell, 5 Yes.
297 ; Penderil v. Penderil, W. Kely. 25.
^ Denton v. Jackson, 1 Johns. Ch. 526.
5 Curre v. Bowyer, 3 Swanst. 357.
344 LAW OF EVIDENCE. [PAET VI.
other like cases ; the mistake being first clearly shown and
proved, to the entire satisfaction of the Court.^
§ 348. Another case, in which evidence will be allowed to
be taken, out of the ordinary course, and upon special order,
is, to impeach the credit of witnesses who have aLready been
examined. To obtain an order for this purpose, it is neces-
sary that ^^ articles" first be filed, charging tiie bad character
of the witness, in point of veracity, whose credit it is intended
to impeach, and stating the general nature of any disparaging
facts which it is intended to prove." The object for which
the articles are required, is to give notice to the adverse party
whose witnesses are to be objected to, that he may be pre-
pared to meet the objection. And as it is a rule of chancery
practice, that witnesses are not to be examined to any mat-
ters not put in issue by the pleadings, and as the character
of a witness cannot in that manner be put in issue, it is
obvious, that any examination as to the character of a witness
would be impertinent to the issue, and therefore must be sup-
pressed, unless it were previously allowed, upon motion, and
a special order.^ The order usually directs, that the party be
at liberty to examine witnesses, as to credit, and as to such
particular facts only as are not material to what is in issue in
the cause ; and under it the party may examine witnesses as
to the general reputation of the witness who is impeached,
and may also contradict him as to particular facts, not mate-
rial to the issue, and may prove previous declarations of the
witness contrary to what he afterwards testified, on his exami-
nation.^ No interrogatory is permitted, as to any fact already
^ Ro'wley v. Ridley, supra ; Darling v. Staniford, 1 Dick. 858. And
Kenny v, Dalton, 2 Moll. 886.
3 See 2 Dan. Ch. Pr. 1158, 1159, for the form of the articles. See, also,
1 Hoffm. Ch. Pr. 489.
3 Mill V. Mill, 12 Yea. 406.
4 2 Dan. Ch. Pr. 1160, 1161 ; Yanghan v. Worrall, 2 Swanst 895, and
cases cited arg, by Sir Samuel Romilly. The doctrine on this subject was
reviewed by Chancellor Kent, in Troup t7. Sherwood, 8 Johns. Ch. 563 -
565 ; and was recognized and hriefly expounded hy Mr. Justice Stoiy, in
PART VI.] SOURCES, MEANS AND INSTRUMENTS OF EVIDENCE. 345
in issue in the cause ; and in regard to the character of the
witness, the only inquiry is as to his ^general reputation for
Wood V. Munn, 2 Sumn. 321 ; and aflerwards more particularly, in Gass
V. Stinson, Id. 605. ^ The general course of practice," he observes, " is,
that, after publication has passed of the depositions (though it may be before,)
if either party would object to the competency or credibility of the witness-
es, whose depositions are introduced on the other side, he must make a spe-
cial application by petition to the Court for liberty to exhibit articles, stating
the facts and objections to the witnesses, and praying leave to examine other
witnesses to establish the truth of the allegations in the articles by suitable
proofs. Without such special order, no sucb examination can taJce place ;
and this has been the settled rule, ever since Lord Bacon promulgated it in
his Ordinances. (Ord. 72.) Upon such a petition to file articles, leave is
ordinarily granted by the Court, as of course, unless there are special ci]>
cumstances to prevent it. There is a difference, however, between objec-
tions taken to the competency, and those taken to the credibility of witnesses.
Where the objection is to competency, the Court will not grant the applica-
tion afler publication of the testimony, if the incompetency of the witness
was known before the commission to take his deposition was issued ; for an
interrogatory might then have been put to him, directly on the point. But,
if the objection was not then known, the Court will grant the application.
This was the doctrine asserted by Lord Hardwicke in Callaghan v. Roch-
fort, (3 Atk. R. 643,) and it has been constantly adhered to ever since.
The proper mode, indeed, of making the application in such case seems to
have been thought by the same great Judge to be, not by exhibiting articles,
but by motion for leave to examine the matter, upon the foundation of igno-
rance at the time of the examination. But, upon principle, there does not
seem to be any objection to either course ; though the exhibition of articles
would seem to be more formal, and, perhaps, after all, more convenient and
certain in its results. But where the objection is to credibility, articles will
ordinarily be allowed to be filed by the Court upon petition, without affida-
vit, after publication. The reason for the difference, is ssdd by Lord Hard-
wicke, in Callaghan v, Bochfort, (3 Atk. R. 643,) to be, because the matters
examined to in such cases are not material to the merits of the cause, but
only relative to the character of the witnesses. And, indeed, imtil after
publication has passed, it cannot be known what matters the witnesses have
testified to ; and, therefore, whether there was any necessity of examining
any witnesses to their credit This latter is the stronger ground ; and it is
confirmed by what fell from the Court in Purcell v, Mc Namara, (8 Ves. R.
324.) When the examination is allowed to credibility only, the interroga-
tories are confined to general interrogatories as to credit, or to such particu-
lar facts only, as are not material to what is already in issue in the cause.
The qualification in the latter case, (which case seems allowed only to impugn
the witness's statements, as to collateral facts,) is to prevent the party, under
346 LAW OP EVIDBNCB. [PART YI.
truth and veracity; as has been stated^ in a preceding
volume.^
color of an examination to credit, from procuring testimony to overcome the
testimony already taken in tlie cause, and published, in violation of the fun-
damental principle of the Court, which does not allow any new evidence of
the facts in issue afler publication. The rule and the reasons of it are fully
expounded in Purcell t;. McNamara, (8 Ves. R. 524, 326) ; Wood v. Hammer-
ton, (9 Ves. R. 145) ; Carlos v. Brock, (10 Ves. R 49, 50), and White v. Fn»-
sell, (1 Ves. & Beam. R. 151.) It was recognized and enforced by Mr.
Chancellor Kent, in Troup v. Sherwood, (8 Johns. Ch. R. 558, 562-565.)
When the examination is to general credit, the course, in England is, to ask
the question of the witnesses, whether they would believe the party sought
to be discredited upon his oath. With us the more usual course is to dis-
credit the party by an inquiry, what his general reputation for truth is,
whether it is good or whether it is bad." 2 Sumn. 608 - 610. And see Fig-
gott V. Coxhall, 1 Sim. & Stu. 467. This course, in its strictness, is conceived to
apply only in those Courts whose practice is similar to that formerly in use
in the High Court of Chancery in England
1 See arUCf Vol. 1, ^ 461, and cases there cited.
PART VI.J OP THE EXCLUSION OF EVIDENCE. 347
CHAPTER III.
OP THE EXCLUSION OP EVIDENCE.
1. BUFFRB86I0N OF DEPOSITIONS BEFORE THE HEABINQ.
§ 349. In the course of proceedings in the Courts of Com-
mon Law, objections to the competency of testimony can be
made only at the trial, when the testimony is offered ; there
being no existing rule, by which the question of its admissi-
bility can be heard by the Court at any earlier stage of the
cause. But in Chancery, the objection may be heard and
the point settled, either at or before the hearing of the cause.
Ordinarily, the time to apply for the suppression of deposi.
tions, is after publication has passed ; for until that time, it
is seldom that it can be known whether any cause for their
suppression exists. But is not necessary to wait until publi-
cation ; for if the ground of objection is previously apparent,
in any manner whatever, the Court, on motion and proof of
the fact, will make an order for suppressing the testimony.
Thus, where it was shown, before publication, that the depo-
sition of the witness, who was also the agent of the party
producing him, was brought, already written, to the commis-
sioners, and taken by them in that form, it was suppressed.^
So, where the deposition was prepared beforehand by the at-
torney of the party, it was suppressed before publication.^
§ 350. The usual grounds on which depositions are sup-
pressed, are, either that the interrogatories are leadings; or,
I Shaw 0. Lindsey, 15 Yes. 880.
9 Anon. Ambl. 252, n. 4, Blunt's ed. ; 2 Dan. Ch. Pr. 1147.
348 LAW OP EVIDENCE. [PAET VI.
that the interrogatories and the answers to them are scanda"
lous, and impertinent ; or, that the witness was incompetent ;
or, that some irregularity has occurred in relation to the depo-
sitions. When the objection is for either of the two former
causes, it is referred to a master, to ascertain and report the
fact, and the question is presented to the Court upon excep-
tions to his. report.^ If the exceptions are sustained, the depo-
sition will be suppressed ; totally, if the objection goes to the
whole, otherwise, only as to the objectionable part. Thus, if
one interrogatory alone is reported as leading, the deposition
as to that interrogatory only, will be suppressed ; and if part
only of the interrogatory be leading, then that part, and so
much of the answer as is responsive to it, will be suppressed.^
And where depositions are suppressed because the interroga-
tories are leading, it is not usual to grant leave to re-examine
the witnesses ; though it will sometimes be permitted under
special circumstances ; as, for example, where the interroga-
tories were improperly framed through inadvertence, and with
no improper design.^ But no reference is ordinarily made
for impertinence alone^ not coupled with scandal;^ unless it
be on special application at the hearing of the cause ; ^ or
where the impertinence consists in the examination of wit-
nesses to discredit other witnesses, without a special order for
that purpose ; in which latter case there may be a reference
either before or after publication.® And where exceptions
are taken after publication and before the hearing, for the incom-
petency of a witness, a special application is made to the
Court for leave to exhibit articles, stating the facts, and pray-
ing leave to examine other witnesses to establish the truth of
them ; and if the facts were not known until after publica-
i 2 Dan. Ch. Pr. 1141, 1143.
s Id. 1143.
3 Ibid. ; Ld. Arundell v. Pitt, Ambl. 585.
* White V. Fussell, 19 Vea. 118. And see Cocks v. Worthington, 2 Atk.
235, 236 ; Pyncent v. Pyncent, 3 Atk. 557; 2 Dan.Ch. Pr. 1049, 1144.
5 2 Dan. Ch. Pr. 1144; Osmond v. Tindall, Jac. 627.
« MiU ». MiU, 12 Ves. 407.
PARTVr.] OP THE EXCLUSION OF EVIDENCE, ^9
tion, the application will be granted.* The causes which ren-
der a witness incompetent have been considered in a preced-
ing volume.^
§ 351. In regard to irregularities in the manner of taking
depositions, when it is recollected that the mode in which
they are to be taken is distinctly prescribed either in statutes
or in rules of Court or in both, it is evident that any depart-
ure from the rules so prescribed must vitiate the entire pro-
ceeding ; and accordingly, in such cases, the deposition will
be suppressed.^ The irregularities, when not apparent upon
the face of the proceedings, should be shown to the Court by
affidavit. But there are other irregularities, occasioned by a
departure from rules not expressed in formal orders, but long
recognised in chancery practice, for which also depositions
will be liable to be suppressed. Thus, it is a cause of sup-
pression, if the general interrogatory be not answered ; * if the
deposition be taken before persons, some of whom are not
named in the commission;^ if a joint commission be not
executed by all the commissioners ; ® if the cross interroga-
tories be not put ; ^ if all proper interrogatories on either side
1 Callagban v. Roclifort, 3 Atk. 643; Gass v. Stinson, "2 Sumn. 608.
Objections to the competency of a witness, if knotdn, and not made at the
time of taking a deposition under the adt of Congrtss, will be deemed to
have been waived. IT. Stated t, Hairpencils, 1 Faine, 400. So, where a
witness, knoton to be incompetent, was cross-examined, this is a waiver of
the objection, on the part of the party by whom he was cross-examined.
Charitable Corp. v. Sutton, 2 Atk. 403 ; Corp. of Sutton v, Wilson, 1 Yem.
254.
9 See ante, Vol. 1, Part 3, ch. 2, ^ 326*- 430.
3 See ante, Vol. 1, ^ 320-324, for the manner in which depositions, in
general are to be taken. Th6 peculiarities of local practice in the State .
Courts are foreign from the design of this work.
^ BichardsoQ i^. Gohlen) 8 Wash. 109; Dodge v, Israel, 4 Wash. 323.
5 Willings r. Consequa, 1 Pet. C. C. R. 801 ; Banert v. Day, 8 Wash.
243. So, where it appHeared that the evidence had been taken by a clerk to the
commissioners, and the effect of some of the depositions had been communi-
cated to the agent of the other side. Lennox v, Munnings, 2 Y. & J. 483.
6 Armstrong v. Brown, 1 Wash. C. C. R. 43.
7 Gilpins V. Consequa, 3 Wash. 184 ; Bell v, Davidflon^ Id. 828. And
VOL. III. SO
350 LAW OP EVIDENCB. [PAKT VI.
do not appear to have been substantially answered ; ^ if the
deposition is in the handwriting of the party, or his agent, or
see Davis v. Allen, 14 Pick. 213 ; Bailis v. Cochran, 2 Johns. 41 7. Batsee, for
a qualification of this rule, ante. Vol. 1, ( 554. The refusal of the witness to
be cross-examined is no cause for suppressing the deposition ; but is punishable
as a contempt Courtenay v. Hoskins, 2 Buss. 258. The effect of the want
of a cross-examination, upon the admissibility of the deposition, was fully
considered by Story, J., in Gass v, Stinson, 8 Sumn. 98. That case, being
before a master, and the plaintiffs being desirous of the testimony of a wit-
ness who was dangerously Ul, a commissioner was agreed on by die parties,
to take his answers to interrogatories ; and they were accordingly taken to
the interrogatories filed by the plaintiff; no objection being made to the
commissioner's proceeding immediately, upon those interrogatories alone,
until others could be filed, saving to the defendant all other benefit of excep-
tion. The witness liyed several months afterwards, during which the com-
missioner proceeded with the examination from time to time, as the witness
was able to bear it ; but before the filing of any cross-interrogatories, and
after answering, on oath, all the direct interrogatories, the witness died.
The defendant objected to the admission of the deposition, for the want of a
cross-examination ; but the master admitted it ; and for this cause, among
others, his report was excepted to. The learned Judge, on this point, deli-
vered his opinion as follows : — '< The general rule at law seems to be, that
no evidence shall be admitted, but what is or might be imder the examina-
tion of both parties. So the doctrine was bud down by Lord EUenborough,
in Cazenove v. Yaughan, (1 Maule & Selw. R 4, 6,) and his Lordship on
that occasion added : * And it is agreeable to common sense, that what is im-
perfect, and, if I may so say, but half an examination, shall not be used in the
same way, as if it were complete. The same principle seems recognised in
Attorney-Grenerai v. Davison, (1 McClel. & Younge, R. 160.) But neither
of these cases called for an explicit declaration as to what would be the
effect of a regular, direct examination, where the party had died before any
cross^xamination. In v. Brown, (Hardres, R. 315,) in the case of
an ejectment at law, the question occurred, whether the examination of a
witness, taken de bene esse to preserve his testimony upon a bUl preferred
and before answer, upon an order of Court, where the witness died before he
could be examined again, and he being sick all the mean time, so that he
could not go to be examined, was admissible on the trial of the ejectment ;
1 Bell V. Davidson, supra. And see Moseley v. Moseley, Cam. & Nor.
522. But if substantially answered, it is sufficient Nelson i;. U. States,
1 Pet C. C. B. 285, 237. Misbehavior of the witness, in giving his testi-
mony, may also be cause for suppressing it Phillips v. Thompson, 1 Johns.
Ch. 189, 140.
PABT YI.] OF THE EXCLUSION OF EVIDENCE. 351
his attorney ; ^ if it is taken after argument of the cause,
without a special order ;^ if it was copied by the depo-
and it was ruled, after consultation with all the judges, that it could not be,
^ because it was taken before issue joined in the cause ; and he might have
been examined after.' From what is said in the same book in Watts's case,
(Hardres, R. 332,) it seems to have been held, at that time, that, if witnesses
are examined de bene esse before answer upon a contempt, such depositions
cannot be made use of in any other Court but the Court onl7 where thej
were taken. And the reason assigned is, ' because there was no issue joined,
so as there could be a legal examination.' It may well be doubted, if this
doctrine would prevail in our day, at least in Courts of Equity. Indeed, it
seems directiy against the decision of the Court of King's Bench in Caze-
nove V. Yaughan, (1 Maule & Selw. R. 4, 6) ; for in that case it was ruled,
that a deposition taken de bene esse^ where the party might have cross-exa-
mined, and did not do so, or take any step to obtain a cross-examination,
might be read in a trial at law, the witness haying gone abroad. On that
occasion, the Court said : * If the adverse party has had liberty to cross-exa-
mine, and has not chosen to exercise it, the case is then the same as if he
had cross-examined ; otherwise the admissibility of the evidence would de-
pend upon his pleasure, whether he will cross-examine or not, which would
be a most uncertain and unjust rule.'
" But it is the more important to consider, how this matter stands in
Equity ; for, although the rules of evidence are, in general, the same in
Equity as at Law, they are far from being universally so.
^ It seems clear, that in Equity, a deposition is not, of course, inadmissible
in evidence, even if there has been no cross-examination, and no waiver of
the right Thus, if a witness, aftier being examined on the direct interroga-
tories, should refuse to answer the cross-interrogatories, the party, producing
the witness, will not be deprived of the benefit of his direct testimony ; for,
upon application to the Court, the witness would have been compelled to an-
swer. So it was held in Courtenay v, Hoskins, (2 Russ. R. S58.) But if
the witness should secrete himself, to avoid a cross-examination, there the
Court would, or at least might suppress the direct examination. Flowerday
V. Collet, (1 Dick. R. 288.) In such a case a cross-examination is still possi-
ble ; and the very conduct of the witness, in secreting himself, has a just
tendency to render his direct examination suspicious.
<* But where the direct interrogatories have been fully answered, and an
inevitable accident occurs, which, without any fault on either side, prevents
1 Moseley v. Moseley, supra; Allen v. Rand, 5 Conn. 822; Amory v.
Fellowes, 5 Mass. 219, 227 ; Burtch v, Hogge, Harringt Ch. 31. And see
Smith V. Smith, 2 Greenl. 408.
2 Dangerfield v, Claiborne, 4 Hen. & Munf. 397.
352 LAW OF WJDESCK. [PART YI.
nent, in the commissioner's presence, from a paper which
the deponent bad previoodly drawn np at a different place ; ^
a cixis8-€zamiiiatioiif I do not know that a like rule has been established, or
that the deposition has been suppressed. So far as anthorities go, tbey in-
cline the odier waj. In Arandel r. Amndel, (1 Chan. R. 90,) the Terycase
occurred. A witness was examined for the plaintiff, and was to be cross-
examined for the defendant ; but before he could be cross-examined he died.
Yet the Court ordered his deposition to stand. Copeland v. Stanton, (1 P.
Will. R. 414,) is not an adverse authority ; for, in that case, the direct exa-
mination was not completed, and the witness had not signed the deposition,
00 fisir as it went ; and the examination being postponed to another day, he
was the next morning taken suddenly ill, and died. The Court denied the
motion to allow the deposition, as far as it had been taken. But the Court
refused, because the examination was imperfect ; and, indeed, until the wit-
ness had signed the examination, he was at liberty to amend and alter it in
any part. In O'Callaghan v. Murphy, (2 Sch. & Lefr. R. 158,) Lord Redes-
dale allowed the deposition of a witness, whose examination had been com-
pleted, but who died before his cross-examination could be had, to be read at
the hearing, deeming it proper evidence, like the case of a witness at Kisi
Frius, who, afler his examination, and before his cross-examination, should
suddenly die, under which circumstances, he thought, that the party pro-
ducing him would not lose the benefit of the evidence he had already given.
But the want of such cross-examination ought to abate the force of the testi-
mony. However, the point was not positively and finally ruled, as, upon
examining the cross interrogatories, they were not found to apply to any
thing, to which the witness had testified in his direct examination, and there-
fore, the deposition was held admissible. In Nolan v. Shannon, ( 1 Molloy, R.
157,) the Lord Chancellor held, that the direct examination of a witness
might be read at the hearing, where a cross-examination had been prevented
by his illness and death. My own researches, and those of the counsel, have
not enabled me to find any other cases, in which the question has been
raised; and in the latest Book of Practice, (1 Smith's Chan. Pr. 294,) no
other case is alluded to on the subject, than that of Copeland v. Stanton,
(1 P. Will. R. 414.) So that the general doctrine is far from being esta-
blished in the manner which the argument for the defendant has supposed,
.and appears strongly to lead the other way.
** But if it were, I should have no doubly that the special circumstances of
this case would well create an exception. The direct examination was taken
by consent. No cross-interrogatories were ever filed. The witness lived
several months afler the originaJ examination was begun ; and there is not the
1 U. States V. Smith, 4 Day, 126 ; Underbill i;. Van Cortlandt, 2 Johns.
Ch. 339, 846.
PABT YI.] OF THE EXCLUSION OF EVIDENCE. . 353
or which was otherwise previously prepared ; ^ if the com-
missioner is fomid to have been the agent, attorney, landlord,
partner, near relative, or creditor of the party in whose behalf
he was nominated ; or was otherwise unfit, by reason of inte-
rest or partiality, to execute the commission.^ But it is to be
noted, that where a party cross-examines a witness upon the
merits, this, so far as regards himself alone, and not his co-
parties, is a waiver of objection to any previous irregularity
in the taking of the deposition, and of any objection to his
competency, which was then known ; ' and that all objections
slightest proof, that, if the cross-interrogatories had been filed, the^ might
not have been answered. Under such circumstances, I am of opinion, that,
the omission to file the cross-interrogatories was at the peril of the defendant.
1 do not say that he was guilty of laches. But I put it upon this, that, as his
own delay was Toluntary, ancTthe illness of the witness well known, the
other party is not to be prejudiced by his delay. His conduct either amount-
ed to a waiver of any objection of this sort, or to an election to take upon
himself the whole hazard of the chances of life. It appears to me, that the
case DeJIs completely within the principles laid down in Cazenoye v, Yaughan,
(1 Maule & Selw. R. 4, 6.") See S Sumn. 104 - 108.
1 Shaw V, Lindsey, 15 Yes. 880. And see 4 Inst 279, ad calc.
9 2 Dan. Ch. Fr. 1076, 1077. In New Hampshire, an uncle of the party
has been held incompetent to take a deposition in the cause. Bean v. Quim-
by, 5 N. Hamp. 94. In McLssachusetts, a son-in-law was held competent,
under the circumstances of the case. Chandler v. Brainard, 14 Pick. 285.
But in both cases the doctrine of the text was asserted. And see Ld. Mos-
tyn V. Spencer, 6 Beav. 185 ; Wood t;. Cole, 18 Pick. 279 ; Coffin v. Jones,
Id. 441.
8 Mechanics Bank v. Seton, 1 Pei 299, 807 ; Bogert v, Bogert, 2 Edw.
Ch. R. 899 ; Gass v. Stinson, 2 Sumn. 605 ; Charitable Corp. o. Sutton,
2 Atk. 408 ; Sutton v. Wilson, 1 Yern. 254. And see antej |Yol. 1, ( 421.
The rule on this subject is, that the party, objecting to the competency of
testimony, ought to take the exception as soon as the cause of it comes to
his knowledge. Ld. Eldon held, that the party, in such case, was bound to
make it reasonably clear, that, at the date of the examination of the witness,
he had no knowledge of the objection ; otherwise, he would be deemed to
have waived it Yaughan v, Wonall, 2 Swanst 400. The reason of the
rule, and its qualification in Equity, were thus stated by Sir Wm. Grant, M.
R., in Moorhouse v. De Passou, 19 Yes. 484 : — *< At Law a party waives
any objection to the competence of a witness by pursuing his cross-examina-
tion, niler the witness appears to be interested. Formerly, the inquiry,
80«
354 LAW OF KVIDBNCB. [PART VI.
to depositions, which might have'been obviated by a re^ezamv'
nation of the witness^ will be considered as waived, unless
made before the hearing.^
§ 352. But though the Court is generally strict in requiring
a compliance with its rules of practice in regard to the taking
of depositions ; yet where an irregularity has evidently arisen
from mistake^ and the party has <icted in good faiihy it will
permit the deposition to stand; and this, especially, where the
other party has done any thing which may have sanctioned
vhetber a witness was interested, could be made only upon die voir dire ;
now, if the interest comes out at any period, his evidence is rejected. Here
there is no such opportunity of inquiring into the competence of the witness
by the voir dire ; and until the depositions are published, it cannot be known
whether the witness has, or has not, admitt^l the fact upon which the ob-
jection arises. The waiver at Law arises from pursuing ihe exanunation,
after the objection to the competence of the witness is known ; but it is dtf^
ficult to say, how an unknown objection can be waived. The witness may
deny all interest in the cause ; and upon the supposition that he is compe-
tent, it may be very material to the other party to cross-examine him. Un-
der these circumstances the principle leads to this conclusion, that in Equity
the cross-examination of a witness in utter ignorance of his having given an
answer to an interrogatory, showing, that he has an interest in the cause,
cannot amount to a waiver of the objection to his competence." The exhi-
bition of articles to discredit a witness, is also held a wuver of any objection
on the ground of irregularity in taking the deposition. Malone v. Morris,
2 Moll. 324.
1 Kimball v. Cook, 1 Gilm. 423. In Underhillv. Van Cortlandt, 2 Johns.
Ch. 339, it appeared by the examiner's certificate, that the examination
commenced June 28, and was continued to July 5 ; and for this cause it was
moved to suppress the deposition ; but the motion was refused by Chancel-
lor Kent, who observed, that ^*It would seem to be too rigorous, when the
other party has had the benefit of a cross-examination, and has not raised
the objection until the hearing, when no re-examination can he had, and
when no ill use is stated to have been made of the irregularity. The ques-
tion whether the deposition shall be suppressed, is a matter of discretion ;
and in Hammond's case, Dick. 50, and in Debrox's case, cited 1 P. Wms.
414, the deposition of a witness, examined after publication, was admitted ; in
the one case, because the opposite party had cross-examined, and in the other
because the testimony would otherwise have been lost forever." 2 Johns.
Ch. 345.
PART VI.] OP THE EXCLUSION OP BVIDENCB. 355
the proceeding.^ In such cases, if the mistake is capable of
correction in Court, or can be otherwise relieved, the Court,
in its discretion, will either amend the deposition^ or otherwise
afford the appropriate remedy.^ Thus, where, after the exami-
nation of the plaintiff's witnesses, under a commission, it
was discovered that the title of the cause was accidentally
mistaken in the commission, the Court refused to suppress
the depositions, but ordered the clerk to amend the commis-
sion in that particular, and granted a new commission for the
examination of the defendant's witnesses.^ So, where a wit-
ness was inadvertently examined and cross-examined two
days afler publicationj the Court refused to suppress the depo-
sition.^ So, where depositions were taken abroad, and the
commissioners refused to allow the defendant a reasonable
time to prepare cross-interrogatories, the Court would not
suppress the depositions, but granted the defendant a new
commission, to other commissioners, for the cross-examination
of the plaintiff's witnesses, and the examination of his own.^
And here it may be added, that though it is a general rule,
that depositions, once suppressed, cannot be used in the same
cause, yet, where the objection does not go to the competency
of the witness, if it should happen that the witness could not
be examined again, the order of suppression does not go the
length of preventing the Court from afterwards directing that
the deposition may be opened, if necessity should require that
the rule be dispensed with.^
1 H Dan. Ch. Pr. 1145, 1146.
9 See, as to amending depositions, gupray ^ S47.
3 Robert v. Millechamp, 1 Dick. 22. And see 0*Hara v. Creap, 2 Irish
£q. R. 419.
4 Hammond v, — , 1 Dick. 50. So, where the depositions were
taken daring an abatement of the suit, the fact not being known at the time.
Sinclair v. James, 1 Dick. 277.
6 Campbell v. Scougall, 19 Yes. 552. For other instances, see Curre v.
Bowyer, 3 Swanst. S57 ; Lincoln v. Wright, 4 Beav. 164 ; Pearson v, Eow*
land, 2 Swanst. 266.
9 Shaw V. Lindsey, 15 Yes. 381, per Ld. Eldon.
356 LAW OP EVIDENCE. [PART VI.
2. OBJECTIONS AT THE HEARIKa.
§ 353. The causes already mentioned, for which depositions
may be suppressed before the hearing, may also be shown at
the hearing, with the same effect. But we have seen the re-
luctance of the Court to suffer testimony to be lost by any
accidental defect or irregularity, not going to the merits, and
capable of supply or amendment; and the readiness with
which its discretionary powers will be exerted, to cure defects
and prevent the delay of justice. Hence it is, that objectionsi
capable of being obviated in any of the modes we have
mentioned, either by amendment in open Court, or by a new
commission, new interrogatories, or a re-examination, are sel-
dom made at so late a stage of the cause as the hearing;
the usual effect being unnecessarily to increase the expense,
and to cause delay ; circumstances which the Judge may not
fail to notice, to the party's disadvantage, in the subsequent
disposition of the cause. The objections usually taken at
the hearing are therefore those only which were until then
undiscovered, or incapable of being accurately weighed, or
which, if sustained, are finally fatal to the testimony. Of this
nature are deficiencies in the amount of the proof required to
over-balance the weight of the answer ; impertinence or irrele-
vancy of the testimony; its inadmissibility to control the
documentary or other written evidence in the cause, or to
supply its absence ; its inferior nature to that which is required ;
and the incompetency of the witnesses to testify, either gene-
rally in the cause, or only to particular parts of the matters
in issue. Son)^ of these subjects, so far as they have been
treated in a preceding volume, will not here be discussed ;
our present object being confined to that which is peculiar to
proceedings in Equity.
§ 354. Andy^r^^, in regard to the quantity of proof lequired
to overbalance the answer ; we have already seen,^ that where
1 Supra^ 4 289. See also, ante^ Vol. 1, ( 860. Alam v. Jouidan, 1 Vena.
PABT VI.] OP THE EXCLUSION OF EVTDENCB. 357
the answer is responsive to the allegations in the bill, and
contains clear and positive denials thereof, it must prevail ;
unless it is overcome by the testimo^ of one positive wit-
ness, with other adminicular proofs sufficient to overbalance
it; or, by circumstances aloqe, sufficient for that purpose.
This rule, whatever may have been its origin or principle, is
now perfectly well settled as a rule of evidence in chancery.
The testimony of a single witness, however, is not in such
cases utterly rejected ; but when it is made apparent to the
Court, that the positive answer is opposed only by the oath of
a single witness, unaided by corroborating circumstances, the
opposing testimony is simply treated as insufficient; but is
not suppressed ; for the Court will still so far lay stress upon
it, as it serves to explain any collateral circumstances ; ^ and
the circumstances, thus explained, may re-act, so as to give
effect to the evidence, by the operation of the rule, that one
witness, with corroborating circumstances, may prevail against
the answer.^
§ 355. Secondly^ as to the objection that the evidence is
impertinejUj or irrelevant^ or immaterial, terms which, in legal
estimation and for all practical purposes, are generally treated
as synonymous, the character of this kind of testimony, and
the principle on which it is rejected, at Law, have already
been sufficiently considered.^ It is unimportant whether the
evidence relates to matters not contained in the pleadings ;
or to matters admitted in the pleadings, and therefore not in
issue; or to matters which though in issue, are immaterial to
161 ; Mortimer v. Orchard, 2 Yes. 244 ; Walton v. Hobbs, 2 Atk. 19 ; Smith
V. Brush, 1 Johns. Ch. 461 ; 2 Foth. Obi. App. No. 16, by Evans, p. 236 -
242.
1 Anon. 3 Atk. 270 ; E. Ind. Co. v. Donald, 9 Yes. 288.
« Gresley, Eq. Evid. p. 4, 227.
3 Ante, Vol. 1, ^ 49 - 56. And see Cowan v. Price, 1 Bibb, 173 ; Lang-
don V. Goddard, 2 Story, R. 267 ; Knibb v. Dixon, 1 Band. 249 ; Conte^ v.
Dawson, 2 Bland, 264 ; Piatt v. Yattier, 9 Pet. 405. Proofs without allega-
tions, and allegations without proof, are alike to be disregarded. Hunt v,
Daniel, 6 J. J. Marsh. 398.
358 LAW OP EVIDENCE. [PART VI.
the controversy, and therefore not requisite to be decided ;
as in either case it is equally open to objection. And the rule
in Equity is substantially the same as at Law. Thus, in regard
to matters not contained in the pleadings^ where the bill was for
specific performance of a contract for the purchase of an estate,
by bidding it off at auction, and the defence was, that puffers
were employed, proof of the additional fact, that the auc-
tioneer declared that no bidder on the part of the plaintiff was
present, was rejected.^ So, where the bill was to set aside
a sale on the ground of fraud, practised by the defendant
against the plaintiff, evidence that the defendant was the
plaintiff's attorney, at the time of sale, as the fact from which
the fraud was to be inferred, was rejected, because not stated
in the bill.^
§ 356. It iswo^ necessary^ however, that all the specific facts
to be proved should be stated in the pleadings ; it is sufficient
that their character be so far indicated by the pleadings as to
prevent any surprise on the other party ; and hence it is, that
circumstances, not specifically alleged, may often be proved
under general allegations. Thus, for example, where there is
a general allegation that a person is insane^ or is habUuaUy
drunken^ or is of a lewd and infamous character; evidence of
particular instances, of the kind of character thus generally
alleged, is admissible.^ So, where the bill was for specific
performance of an agreement to continue the plaintiff in an
office, and in the answer it was alleged that the plaintiff had
not accounted for divers fees which he bad received by virtue
of the office, and had concealed several instruments and wrU"
ings belonging to the office ; evidence of particular instances
and acts of the misbehavior alleged was admitted.^ And
where, in a bill by an executor, for relief against certain bonds
1 Smith o. Clarke, 12 Yes. 477, 480.
a Williams r. LlewellTn, 2 Y. & J. 68.
3 Whaley t?. Norton, 1 Vem. 484 ; Clark t?. Periam, 2 Atk. 387 ; Carew
V. Johnston, 2 Sch. & Lefr. 280.
* VTheeler w. Trotter, 3 Swanst. 174, n.
PART VI.] OP THE EXCLUSION OP EVIDENCB. 359
given by the testator, alleged to have been extorted from him
by threats and menaces and by undue means, and not for any
real debt, it was answered that the bonds were for money
lent and for other debts ; evidence that the defendant was a
common harlot^ and that the bonds were given ex turpi causd^
was held admissible.^ But the general allegation, in cases of
this class, must be so far specific as to show the nature of the
particular facts intended to be proved. Therefore, where, to
a bill by the wife, against her husband, for the specific per-
formance of marriage articles, the defendant answered that
the wife had withdrawn herself from him, and had lived sepa-
rately, and very much misbehaved herself; evidence of par-
ticular acts of adultery was held inadmissible, as not being
with sufficient distinctness put in issue by so general a
charge.^
§ 357. But it does not follow that evidence, inadmissible
as direct testimony, is therefore to be utterly rejected; for
such evidence may sometimes be admitted in proof of colla*
feral facts^ leading, by way of inducemerUj to the matter
directly in issue. Thus, in a bill to impeach an award, testi-
mony relating to the merits, though on general grounds inad-
missible, may be read for the purpose of throwing light on
the conduct of the arbitrators.^ So, in a bill by the vendee,
to set aside a contract for the purchase of lands, on the ground
of fraudulent misrepresentations by the vendor, evidence of
the like misrepresentations, contemporaneously made toothers,
is admissible in proof of the alleged fraudulent design.^ And
on a kindred principle, facts apparently irrelevant may some-
times be shown, for the purpose of estabUshing a more gene-
ral state of things, involving the matter in issue ; as, for ex-
1 Matthew^o. Hanbury, 2 Yem. 187.
s Sidney J. Sidney, 8 P. Wms. 269, 276.
3 Goodman v. Sayers, 2 J. & W. 259. For the application of a similar
principle at Law, see Gibflon v. Hunter, 2 H. Bl. 288 ; Bottomley v. United
States, 1 Story, B. 148 - 145 ; Crocker v. Lewis, 8 Sumn. 1 ; Sugin-a, ^ 15.
Bradley v. Chase, 9 ShepL 511.
360 LAW OP EVIDENCE. [PART VI.
ample, where acts of ownership exercised in one spot, have
been admitted to prove a right in another, a reasonable proba-
bility being first made out, that both were once parcels of
the same estate, belonging to one owner, and subject to one
and the same burden.^
§ 358. In regard to facts already admitted in the pleadings^
evidence in proof or disproof of which is therefore inadmissible,
the rule applies only where the admission is full and unequi-
vocal, and therefore conclusive upon the party ; and this will
be determined by the Court, in its discretion, upon the cir-
cumstances of the particular case.^
§ 359. Thirdly^ as to the objection, that the evidence offered
is inadmissible as a substitute for better evidence alleged to
exist, or to control the effect of a writing. The subject of pri-
mary and secondary evidence, and the duty of the party to
produce the best evidence which the nature of the case admits,
having been treated in a preceding volume,' it is sufficient
here to observe, that the principles and distinctions there
stated, are recognised as well in Equity as at Law. In some
cases, however, which fall under the maxim — Omnia prce^
sumuntur, in odium spoliatoris — Courts of Equity will go
beyond Courts of Law, in giving relief, by reason of the greater
flexibility of its modes of remedy. Thus, where the king had
a good title in reversion at law, as against the heir in tail;
but " the deeds whereby the estate was to come to him were
not extant, but very vehemently suspicious to have been sup-
pressed and withholden by sotn6 under whom the defendants
claimed ; " it was decreed, that the king should hold and
enjoy the land, until the defendants should produce the deeds.^
1 Gresley, Eq. Evid. p. 236 ; Tyrwliitt v. Wynne, 2 B. & A. 554. And
see ante, Vol. 1, ^ 52.
2 Gresley, Eq. Evid. p. 237, 238.
3 Ante, Vol. 1, § 82 - 97, 105, 161, 166.
4 Rex V. Arundel, Hob. 109, commented on, 2 P. Wms. 748. And see
Dalston v, Coatsworth, 1 P. Wms. 731, and cases there collected ; Saltern t*.
Melhuisb, Ambl. 247 ; Ante, Vol. 1, ^ 37.
PART VI.] OP THE BXCLUSION OF BVIDBNOB. 361
§ 360. In regard to the admissibility of parol evidence to
control the effect of a writings we have already seen that the
rule, subject to the modifications which were stated under it,^
is inflexible, that extrinsic verbal evidence is not admissible,
at Law, to contradict or alter a written instrument. In
Equity, the same general doctrine is admitted ; subject, how-'
ever, to certain other modifications, necessarily required for
that relief which Equity alone can afford. For Equity relieves,
not only against fraud, but against accidents and the mistakes
of parties ; and whenever a written instrument, in its terms,
stands in the way of this relief, it is obvious that parol evi-
dence ought to be admitted, to show that the instrument does
not express the intention of the parties, or, in other words, to
control its written language by the oral language of truth.
It may express more, or less, than one of the parties intended;
or, it may express something different from that which they
both intended ; in either of which cases, and in certain rela-
tions of the parties before the Court, parol evidence of the
fact is admissible, as indispensable to the relief. Tiie prin-
ciple upon which such evidence is admitted is, not that it
is necessary, for the sake of justice, to violate a sound rule
of law by contradicting a valid instrument which expresses
the intent and agreement of the parties ; but, that the evi-
dence goes to show, that, by accident or mistake, the instru-
ment does not express their meaning and intent; and to
establish an equity, dehors the instrument, by proving the
existence of circumstances, entitling the party to more relief
than he can have at law, or rendering it inequitable that the
instrument should stand as the true exponent of his meaning.
These facts being first established, as independent grounds of
equitable relief, the Court, in the exercise of its peculiar func-
tions as a Court of Equity, will proceed to afford that relief,
and, as incidental to or a part of such relief, will decree
that the instrument be so reformed as to express what the
parties actually meant to express, or, that it be cancelled, or
1 ilnte,VoLl, 5 275-805.
VOL. in. 81
362 LAW OP BVIDENCK. [PABT VI.
held void, or that the obligor be absolved from its specific
performance, as the case may require.^
i This important distanction was adverted to by Ld. Thurlow, in the case
of Imham v. Child, 1 Bro. C. C. 92, and was afterwards more fully expounded
hy Ld. Eldon, in Townsend (Marq.) v. Stangroom, 6 Yes. 826, in the foUow-
lowing terms : — '* It cannot be said, that because the legal import of a
written agreement cannot be varied by parol evidence, intended to give it
another sense, therefore in equity, when once the Court is in possession of
the legal sense, there is nothing more to inquire into. Fraud is a distinct
case, and perhaps more examinable at law ; but all the doctrine of the Court,
as to cases of unconscionable agreements, hard agreements, agreements entered
into by mistake or' surprise, which therefore the Court will not execute,
must be struck out, if it is true, that, because parol evidence should not be
admitted at Law, therefore it shall not be admitted in Equity, upon the ques-
tion, whether, admitting the agreement to be such as at Law it is said to be,
the party shall have a specific execution, or be lefl to that Court, in which,
it is admitted, parol evidence cannot be introduced. A very small re-
search into the cases will show general indications by Judges in Equity, that
that has not been supposed to be the Law of this Court. In Henkle o. The
Bo^al Exchange Assurance Company (1 Yes. 817,) the Court did not rectify
the policy of insurance ; but they did not refuse to do so upon a notion, that,
such being the legal effect of it, therefore this Court could not interfere ;
and Ld. Hardwicke says expressly, there is no doubt the Court has jurisdic-
tion to relieve in respect of a plain mistake in contracts in writing, as well as
against frauds in contracts; so that if reduced into writing contrary to the
intent of the parties, on proper proof, that would be rectified. This is loose
in one sense ; leaving it to every Judge to say, whether the proof is that
proper proof, that ought to satisfy him ; and every Judge, who sits here any
time, must miscarry in some of the cases, when acting upon such a principle.
Ld. Hardwicke, saying the proof ought to be the strongest possible, leaves a
weighty caution to future Judges. Thb inconvenience belongs to the admi-
nistration of justice, that the minds of different men will differ upon the re-
sult of the evidence ; which may lead to different decisions upon the same
case. In Lady Shelbume v. Lord Inchiquin (1 Bro. C. C. 838) it is clear,
Ld. Thurlow was influenced by this, as the doctrine of the Court ; saying
(1 Bro. C. C. 341), it was impossible to refuse, as incompetent, parol evidence,
which goes to prove, that the words taken down in writing were contrary to
the concurrent intention of all parties : but he also thought, it was to be of
the highest nature ; for he adds, that it must be irrefragable evidence. He
therefore seems to say, that the proof must satisfy the Court what was the
concurrent intention of all parties ; and it must never be forgot, to what ex-
tent the defendant, one of the parties, admits or denies the intention. Ld.
Thurlow saying, the evidence must be strong, and admitting the difficulty
PABT VI.] OF THE EXCLUSION OF EVIDENCE. 363
§ 361. Therefore, where the bill is for the specific performance
of a contract in writing, parol evidence is admissible in Equity
of finding such eTidence, says, he does not think it can be rejected as in-
competent
I do not go througb all the cases, as they are all^ referred to in one or two
of the last, In Rich v, Jackson there is a reference to Joynes v. Statham,
and a note of that case preserved in Ld. Hardwick^'s manuscript He states
the proposition in the very terms ; that he. shall not confine the evidence to
. fraud ; that it is admissible to mistake and surprise ; and it is very singular,
if the Court will take a moral jurisdiction at all, that it should not be capable
of being applied to those cases ; for in a moral view there is very little differ-
ence between calling for the execution of an agreement obtained by fraud,
which creates a surprise upon the other party, and dedring the execution of
an agreement, which can be demonstrated to have been obtained by surprise.
It is impossible to read the report of Joynes r. Statham, and conceive Ld.
Hardwicke to have been of opinion, that evidence is not admissible in such
cases; though I agree with Ld. Rosslyn that the report is inaccurate. Ld.
Rosslyn expressly takes the distinction between a person coming into this
Court, desiring that a new term shall be introduced into an agreement, and
a person admitting the agreement, but resisting the execution of it by making
out a case of surprise. If that is made out, the Court will not say the agree-
ment has a different meaning from that which is put upon it ; but supposing
it to have that meaning, under all the circumstances it is not so much of
course, that this Court will specifically execute it The Court must be satis-
fied, that under all the circumstances it is equitable to give more relief than
the plaintiff can have at law ; and that was carried to a great extent in
Twining v. Morrice (2 Bro. C. C. 826). In that case it was impossible to
impute fraud, mistake, or negligence ; but Ld. Eenyon was satisfied the
agreement was obtained by surprise upon third persons ; which therefore it
was unconscientious to execute against the other party interested in the
question. It has been decided frequently at law, that there could be no such
thing as a puffer at an auction. That, whether right or wrong, has been
much disputed here. (Conoliy v. Parsons, 3 Ves. Ch. R. 625, note). In that
case we contended, that all the parties in the room ought to know the law.
Ld. Kenyon would not hear us upon that ; and I do not much wonder at it;
but Blake being the common acquaintance of both parties, and having no
purpose to bid for the vendor, unfortunately was employed to bid for the
vendee ; and others, knowing that he was generally employed for the vendor,
thought the bidding was for him. Ld. Eenyon said, that was such a surprise
upon the transaction of the sale, that he would leave the parties to law ; and
yet it was impossible to say, that the vendee appointing his friend, without the
least notion, much less intention, that the sale should be prejudiced, was
fraud, surprise, or any thing, that could be characterized as morally wrong.
364 LAW OF BVIDBKCE. [PABT VI.
to show, that by mistake, not originating in the defendant's
own gross carelessness, the writing expresses something mate-
rially different from his intention, and that therefore it would
be unjust to enforce him to perform it.^ Thus, where a bill
was filed for the specific performance of an agreement to convey
certain premises, which, as the defendant alleged, included,
by mistake, a parcel not intended to be conveyed ; parol evi-
dence of this fact was admitted, and the bill was thereupon dis-
missed.^ So, where the bill was for the specific performance
of an agreement to make a lease, upon a certain rent ; the
defendant was admitted to show, by oral evidence, that the
rent was to be a clear rent, the plaintiff paying all taxes.
And where a mortgage was intended to be made by two
deeds, the one absolute, and the other a defeasance, which
latter the mortgagee omitted to execute ; the mortgagor was
admitted to show this mistake. And in these cases it makes
no difference in the principle of relief, whether the omission is
charged as a pure and innocent mistake, or as a fraud.8 But
the mistake must be a mistake of fact; for as to mistakes of
That case illustrates the principle, that circumstances of that sort woald pre-
vent a specific performance ; and that it is competent to this Court, at least
for the purpose of enabling it to determine whether it will specifically execute
an agreement, to receive evidence of the circumstances under which it was
obtained ; and I will not say, there are not cases, in which it may be received,
to enable the Court to rectify a written agreement, upon surprise and mis-
take, as well as fraud ; proper, irrefragable eridence, as clearly satisfectory
that there has been mistake or surprise, as in the other case, tliat there haa
been fraud. I agree, those producing evidence of mistake or surprise, eitlier
to rectify an agreement, or calling upon the Court to refuse a specific per-
formance, undertake a case of great difficulty ; but it does not follow, that it
is therefore incompetent to prove the actnal existence of it by eridence."
6 Yes. 833 - 339.
^ King V. Hamilton, 4 Pet. 811, 328; Western R. B. Co. v. Babcock,
6 Met 346 ; Adams, Doctr. of Eq. p. 84 ; 1 Story, £q. Jur. ^ 152 - 156 ;
ArUey Vol. 1, ^ 296, a.
« Calveriey v. Williams, 1 Ves, 210.
3 Jo3rnes v. Statham, 8 Atk. 888 ; Mason v. Armitage, 13 Yes. 25. And
see Rich v. Jackson, 4 Bro. C. C. 514 ; 6 Yes. 334, S. C. ; Townsend,
(Marq.) v. Stangroom, 6 Yes. 328 ; Hunt v. Rousmanier, 8 Wheat 174|
fill ; Brainerd v. Bndnerd, 15 Conn. 575 ; Fishell v. Betl, 1 Clark, 37.
PABT VI.] OP THE EXCLUSION OF EVIDENCE. 365
law, though the decisions are somewhat conflicting, yet the
weight of aatbority is now clearly preponderant, that mere
mistakes of law are not remediable, except in a few cases,
peculiar in their character, and involving other elements in
their decision.^
§ 362. Upon the same general principle of equitable relief,
where the bill seeks that a contract itiay be rescinded, or can'
celled or given i/p, parol evidence is admissible to prove extra-
neous facts and transactions, inconsistent with the terms of
the contract and thus indirectly contradicting them.^
§ 363. So, where the bill is brought to reform a written
instrument of contract^ or of conveyance, whether it be execu-
tory or executed being immaterial, parol evidence is generally
admissible to show a mistake in the instrument. But the
proof in this case must be of a mutuai mistake ; for though a
mistake on one side may be a ground for rescinding a contract,
or for refusing to enforce its specific, performance, it is only
where the mistake is mutual that Equity will decree an altC'
ration in the terms of the instrument.^ Whether this ought
to be done upon merely verbal evidence, where there is no
previous article or memorandum of agreement or other proof
in writing, by which to reform the instrument, has sometimes
been doubted, but is now no longer questioned. The written
evidence may be more satisfactory, but the verbal evidence is
clearly admissible ; for the written evidence may be only a
letter, or a memorandum, of no higher degree, in legal estima-
tion, than oral testimony, though more distinct and certain in
the conviction it may produce. It is therefore only required
^ Hunt V. Bonsmanier, 1 Pet 15 ; Bank U. States v. Daniel, 12 Pet 32,
55 ; 1 Story, Eq. Jur. 116.
9 1 Story, Eq. Jur. 161 ; 3 Story, Eq. Jur. $ 694 ; Mitford's Plead, in
Eq. p. 103, (3d ed.) ; Boyce v. Grundy, 3 Pet. 210.
3 Adams, Doctr. of Equity, p. 171 ; 1 Story, Eq. Jur. ^ 155, 157. And
see the notes to Woolam v. Heam, in White & Tudor's Leading Cases in
Equity, Am. ed., by Hare & Wallace, Vol. 2, Part 1, p. 646 - 696, where
all the cases on this subject are collected and reviewed.
•81
366 LAW OF EVIBSNCE. [PABT YI.
that the mistake be either admitted, or distinctly proved, to
the satisfaction of the Court ; and though the undertaking
may be one of great difficulty, especially against the positive
denial of the answer, yet the reported cases show that this
may be done. The language of the learned Judges on this
point implies no more than this, that in determining whether
such proof has been given, great weight will be allowed to
what is properly sworn in the answer.^ But whether, in a bill
to reform a written instrument, and in the absence of any
allegation or charge of fraud, and on the ground of accident
and mistake alone, verbal evidence is admissible to prove a
distinct and independent agreement, not mentioned or alluded
to in the written instrument, to do something further than is
there stated, and which the Statute of Frauds requires to be
proved by writings is a point involved in no little doubt, by
the decided cases. In those which have fallen under the
author's notice, the evidence has been held admissible, in cases
not within the statute;^ but in regard to those to which the
1 Ibid. And see Gillespie v. Moon, 2 Johns. Ch. 585, 600, where thii
point was considered, and the authorities reviewed. See, also, Townsendv.
Stangroom, 6 Yes. 828 ; Shelbom v. Inchiqnin, 1 Bro. Ch. C. 888, 841 ;
Barstow v. Eilvington, 6 Yes. 598 ; Newson v. Bnfferlow, 1 Dev. Ch.R.879 ;
Inskoe v. Proctor, 6 Monr. 811. Where the mistake alleged in the bill is
admitted in the answer, but the answer sets up an agreement different fixxn
that alleged in the bill, parol evidence is admissible to prove what was the
real agreement Wells v. Hodge, 4 J. J. Marsh. 120. How far a Court of
Equity ought to be active in granting relief by a specific performance^ in
favor of a party seeking, first, to reform the contract by parol evidence, and
then, in the same bill, to obtain performance of it as thus refimned, b a pcunt
upon which learned Judges have held different opinions. The £n^]sh
Judges have, on various occasions, refused to grant the relief prayed for un-
der such circumstances ; and at other times have expressed strong opinions
against it But in this country, as will be seen in the note below, the weight
of opinion is in f&voT of granting the relief; and it has accordingly been
granted. Gillespie v. Moon, supra ; Keissclbrack v, Livingston, 4 Johns.
Ch. 144 ; Bellows v. Stone, 14 N. Hamp. 175. And see 1 Story, £q. Jar.
^ 161 ; Ante^ Yol. 1, ( 296, a. ; Wooden v. HavOand, 18 Conn. 101.
s Baker v, Paine, 1 Yez. 456, was an agreement for the sale of goods,
between vendor and purchaser. And see Bellows v. Stone, 14 N. Hamp.
175 ; Wesley v. Thomas, 6 H. & J. 24.
PART VI.] OF THE EXCLUSION OF EVIDENCE. - 367
statnte applies, the decisions in England are not uniform,
neither are those in the United States ; but the weight of
modern opinions, in the former country, seems opposed to the
admission of parol evidence, and in this country, is in its favor.^
1 In the following English cases, rerbal eyidence was admitted ; namely,
in Bogers v. Earl, 1 Dick. 294, to rectify a mistake of the solicitor, in draw-
ing a marriage settlement; — in Thomas v, Davis, Id. 301, to rectify a mis-
take in a conveyance, by the omission of one of the parcels of land intended
to be conveyed; — in Sims ». Urry, 1 Ch. Ca. 225, to prove a mistake in
the penal sum of a bond, by writing it forty instead of four hundred pounds,
for which latter sum the heir of the obligor was accordingly charged.
But snch evidence was rejected, or held inadmissible, in Harwood v, Wal-
lis, cited in 2 Yez. 195, where it was proposed to prove a mistake in draw-
ing a marriage settlement, and thereby to exclude all the daughters of a
second marriage; — in Woollam v. Heam, 7 Yes. 211, where it was pro-
posed to prove a parol agreement for a lower rent than was inserted in the
lease, which was for seventeen years ; — and in Atta Gen. v. Sitwell, 1 Y. &
C. ^59, 582, 583, where it was attempted to show by parol evidence, that in
a contract with the crown, for the sale of the manor of Eckington, with the
appurtenances, the advowson was omitted by mistake.
In the following American cases, also, verbal evidence, in cases within the
Statute of Frauds, was held inadmissible. Dwight v. Pomeroy, 1 7 Mass. 308,
where the plaintiif, being a creditor of an insolvent debtor, who had execu-
ted a deed of assignment in trust for the benefit of his creditors, filed his
bill against the trustees, to reform an alleged mistake in the trusts expressed
in the deed. So, in Elder v. Elder, 1 Fairf. 80, where the written agree-
ment was for the conveyance of a " lot of land in Windham, formerly owned
by J. E.," and the plaintiff proposed to prove by parol that it was intended
fo include the adjoining land in Westbrook, under the same ownership, but
that this was omitted by mistake. In Osbom t;. Phelps, 19 Conn. 63, an
agreement for the sale of lands was drawn in two separate instruments,
one to be signed by the vendor, and the other by the purchaser, and neidier
of the instruments containing any reference to the other ; but each was sign-
ed by the wrong party, by mistake, which the plaintiff sought to prove by
parol evidence ; but the Court (Ellsworth, J., strenu^ disserUienie,) held it
inadmissible.
But in other American cases, such evidence, upon great consideration, has
been held admissible. The principal of these is Gillespie v. Moon, 2 Johns.
Ch. 585, which was a bill for relief, and for the reconveyance of a parcel of
land, which had been included, by mistake or fraud, in a deed of convey-
ance ; and upon general grounds, afler a review of the cases by the learned
Chancellor Kent, verbal evidence of the mistake was admitted, and a recon-
veyance decreed. So, in Tilton v. Tilton, 9 N. Hamp. 885, where tenants
368 LAW OF BVIDBNCB. [PABT VI.
It is, however, universally agreed, that the Statute interposes
no obstacle to relief against /ra2£(2, whether actual or construc-
tive; and therefore Courts of Equity have always unhesi-
tatingly relieved parties against deeds and other Instruments
which have been fraudulently made to express more or less
than was intended by the party seeking relief. It is difficult
to perceive any moral or equitable distinction between a
fraud, previously conceived, and afterwards consummated in
the execution of the instrument, and a fraud subsequently
in common agreed to make partition pursuant to a verbal award, and exe-
cuted deeds accordingly ; but in the deed to the pkdntiff, a parcel assigned
to him was omitted by mistake ; and in a bill for relief, verbal evidence of
the mistake was held admissible, and relief thereupon decreed. So, in Lang-
don V. Keith, 9 Verm. 299, where, upon the transfer of a part only of seve-
ral promissory notes secured by mortgage, an assignment of the mortgagee's
entire interest in the mortgage was made by mistake, instead of a part ; and
relief was decreed, upon the like proof. So, in De Reimer v. CautiUon,
4 Johns. Ch. 85, where a portion of the land, purchased at a sheriff's sale,
was by mistake omitted in his deed to the purchaser ; and upon parol evi-
dence of the fact, the judgment debtors were decreed to convey to the pni^
chaser the omitted parcel. And see Keisselbrack v. Livingston, 4 Johns.
144 ; 1 Story, Eq. Jur. $161, and notes ; Hogan v. DcL Ins. Co. 1 Wash.
C. G. B. 422 ; Smith v. Chapman, 4 Conn. 344 ; Watson o. Wells, 5 Conn.
468; Chamberlain v. Thompson, 10 Conn. 243; Wooden v. Haviland,
18 Conn. 101.
In several cases, the evidence, upon which the mistake was corrected, was
partly verbal and partly in writing, the former being admitted without ob-
jection. See Exeter v. Exeter, 3 My. & Cr. 321 ; Shipp v. Swan, 2 Bibb,
82.
In others, usually cited upon the point in question, the evidence was in let-
ters, or other writings, signed by the party in whose favor the mistake was
made. See Bandal v. Randal, 2 P. Wms. 464 ; Barstow v. Eilvington,
5 Yes. 593 ; Bedford v, Abercorn, 1 My. & Cr. 312; Jalabert v. Chandos,
1 Eden, 372 ; Fritchard v. Quinchant, Ambl. 147.
In other cases, also, frequently cited in this connection, the bill sought a
specific performance of the contract as it was written ; in which case, as the
Court is not bound to decree a performance unless the plaintiff is equitably
entitled to it, under all the circumstances, it is every where agreed that ver-
bal evidence is admissible, on the part of the defendant, to show that the
writing does not express the real intent of the parties. See Rich v, Jack-
son, 4 Bro. Ch. C. 514 ; 6 Ves. 334, n. ; Clark v. Grant, 14 Ves. 519 ; Hig-
ginson v. Clowes, 15 Ves. 516 ; Clinan r. Cooke, 1 Sch. & Lefr. 22.
PART VI.] OP THE EXCLUSION OP BVIDBNCB. 369
conceived, and attempted to be consummated by an iniquitous
literal adherence to the terms of an instrument which, by acci-
dent or mistake, does not express what was intended. Nor
is it easy to discern any substantial reason why Equity
should not treat both as alike fraudulent, and relieve, on the
same principle, as well against the one as against the other.
Surely there can be no moral difference between cheating
another by purposely betraying him into a mistake, and
cheating him by taking advantage of a mistake already acci-
dentally made.
§ 364. Parol evidence is also admitted in Equity, to prove
that a deed of conveyance, made absolute by mistake, or acci-
dent, was intended only as a mortgage. This evidence has
always been admitted in bills to redeem, in which mode the
point usually occurs ; but the principle of admissibility is
applied to other cases of mistake and accident, as well as of
fraud, wherever justice and equity require its application.^
Such evidence is also admitted to prove a parol agency for
the purchase of lands, in order to raise a trust for the benefit
of the principal, where the agent has purchased and taken
the conveyance in his own name.^ So, in a bill to reform a
bond and for relief, parol evidence is admissible to prove that
the bond, made joint, by mistake, was intended to be joint
and several ; or, that the name of the wrong person was in-
serted as obligee.^
§ 365. In cases of trusts, it has already been stated, that
1 Strong V. Stewart, 4 Johns. Ch. 167 ; Joynes v. Statham, 3 Atk. 389 ;
1 Fow. on Mortg. 120, 151, (Rand's ed.) ; Washburn v. Merrills, 1 Day, 189 ;
Slee V. Manhattan Co. 1 Paige, 48 ; Marks v. Pell, i Johns. Ch. 395. And
see 2 Cruise's Dig. Tit. 15, ch. ], ^11, n. 1, (Greenleaf s ed.) ; James v.
Johnson, 6 Johns. Ch. 417 ; Henry v. Davis, 7 Johns. 40 ; Clark v. Henry,
2 Cowen, 324 ; Whittick v. Kane, 1 Paige, 202 ; Imham v. Child, 1 Bro.
Ch. C. 92, and cases in Perkins's notes; 2 Story, Eq. Jur. $ 768, 1018.
9 Jenkins v. Eldredge, 3 Story, R. 181, 285, 292, 293 ; Morris v. Nixon,
1 How. S. C. R. 118 ; 17 Pet. 109, S. C.
3 Wiser V. Blachly, 1 Johns. Ch. 607 ; 1 Story, Eq. Jur. ( 164.
370 LAW OP BVIDENCB. [PART VI.
the Statute of Frauds requires that they be proved by some
uniting ; but that this relates only to express trusts, intentioii-
ally created by the parties, and not to resulting and implied
trusts^ arising out of collateral facts. Such facts, therefore,
may be proved by parol evidence.^ And though they go to
contradict the terms of a deed, yet if they also go to prove
fraud, parol evidence is admissible, in order to "force a trust
upon the conscience of the party." ^ And irrespective of any
allegation of fraud, it has been settled, upon great conside-
ration, that parol evidence is admissible to prove, that the
purchase-money for an estate was paid by a third person,
other than the grantee named in the deed, in order to estab-
lish a trust in favor of him who paid the money.® It is also
admissible to charge a trust upon an executor, or a devisee,
who has prevented the testator from making provision in his
will, for the plaintiff, by expressly and verbally undertaking
with the testator to fulfil his wishes in that respect,* or by
fraudulently inducing him to make a new will without such
provision,^ or the like ; the will thus procured being in favor
of the defendant, as executor, devisee, or legatee. And in
some cases of trusts imperfectly expressed, parol evidence has
been held admissible in explanation of the intent. Thus,
where a testator devised his estate to his wife, " having a per-
fect confidence that she will act up to those views which I
have communicated to her, in the ultimate disposal of my pro-
perty after her decease ; '' the wife afterwards died intestate ;
and a bill was filed by his two natural children, for relief,
against his heir and next of kin, and her heir and administra-
1 Ante, VoL 1, § 266.
9 2Stor}r,Eq. Jur. §1195.
9 See Boyd v. M'Lean, 1 Johns. Ch. 582, where the cases on this point
are collected and reviewed bj Kent, Ch. See, also, Botsford v. Burr,
2 Johns. Ch. 405 ; 2 Story, Eq. Jur. § 1201, n. ; Pillsbury v. Pillsbury,
5 Shepl. 107 ; Runnels v. Jackson, 1 How. 858 f 1 Spence, Eq. Jur. Chan.
[571.]
4 Oldham v. Litchfield, 2 Yem. 506. And see Beech v. Eennigate,
Ambl. 67 ; Drakeford t;. Wilks, 3 Atk. 539.
5 Thynn v. Thynn, 1 Vem. 296. See, also, 2 Story, Eq. Jur. § 781.
PART VI.] OP THE EXCLUSION OP EVIDENCE, 371
tor, alleging that the testator, at the time of making his will,
desired his wife to give the whole of his estate, after her
death, to the plaintiffs, and that she promised so to do ; parol
evidence was admitted in proof of this allegation.^
§ 366. In certain cases of presumptions of law^ also, parol
evidence is admitted in Equity to rebut them. But here a
distinction is to be observed, between those presumptions
which constitute the settled legal rules of construction of in-
struments, or, in other words, conclusive presumptions^ where
the construction is in favor of the instrument^ by giving to the
language its plain and literal effect ; and those presumptions
which are raised against the instrument, imputing to the
language, primd facie, a meaning different from its literal
import In the latter class of cases, parol evidence is admis-
sible to rebut the presumption, and give full effect to the
language of the instrument ; but in the former class, where
the law conclusively determines the construction, parol evi-
dence is not admissible to contradict or avoid it. Thus,
where the same specific thing, is given twice to the same lega-
tee, in the same will, or in the will and again in a codicil, and
where two pecuniary legacies of equal amount are given to
the same legatee in one and the same instrument ; the second
legacy, in each case, is presumed to be a mere repetition of
the first; but as this presumption is against the language of
the will, parol evidence is- admissible, where the subject is
capable of such proof, to show that the second bequest was
intended to be additional to the first. Such would be the
case, where the bequests were of sums of money, or of things
of which the testator had several ; as, for example, one of his
horses, without a particular specification of the animal.^ But
where two legacies, of quantities unequal in amount, are
1 Fodmore v. Gunning, 7 Sim. 644 ; 5 Sim. 485, S. C.
9 1 Spence, Eq. Jur. Chan. p. [566] ; Coote v. Boyd, 2 Bro. C. C. 521, 627,
528, per Ld. Thurlow ; as expounded by Ld. Alvanley, in Osborne v. D. of
Leeds, 5 Yes. 868, 380, and by Sir £. Sugden, in Hall v. Hill, 1 Con. & Law.
149, 150.
372 LAW OP BVIDBNCB. [PABT VI.
given to the same person by the same instrument, or where
two legacies are given, simpliciter^ to the same person by
different instruments, whether the amounts or quantities in
the latter case be equal or unequal, the law conclusively pre-
sumes the second bequest to be additional to the first; and
this constructioa being in favor of the language of the instru-
ment, by a positive rule of law, parol evidence will not be
admitted to control it.^ The rule, in short, amounts to this ;
that parol evidence is not admissible to prove that the party
did not mean what he has said ; but that, when the law pre-
sumes that he did not so mean, parol evidence is admissible
to prove that he did, by rebutting that presumption ; it not
being conclusive, but disputable. And the rule is applied,
not only to cases purely testamentary, but to cases where
there was first a will and then an advancement,^ or first a
debt, and then a will,^ as well as to others.
§ 367. The parol evidence mentioned in the preceding sec-
tion, as inadmissible, refers to the verbal declarations of the
party.* In both classes of the cases referred to, parol evidence
is clearly admissible to show any collateral facts relating to
the party, such as his family, fortune, relatives, situation, and
the like, from which the meaning of the instrument in ques-
tion can be collected.^ And where the language is clear, and
there is no presumption of law to the contrary, yet the ques-
' Ibid. And see Hooley v, Hatton, 1 Bro. C. C. 890, n. ; Toj v. F07,
1 Cox, 163 ; Baillie v. Butterfield, Id. 392 ; Harst v. Beach, 5 Madd. 351 ;
Hall V. Hill, 1 Con. & Law. 120, 138, 156 ; 1 Dru. & War. 94, S. C. ; Lee
t;. Pain, 4 Hare, 201, 216 ; Brown v. Selwin, Cas.temp. Talbot, 240.
2 Roswell V. Bennett, 3 Atk. 77 ; Bigleston v. Grubb, 2 Atk. 48 ; Monck
V. Monck, 1 Ball & B. 298; Shudal v. Jekyll, 2 Atk. 515.
3 Fowler ». Fowler, 3 P. Wms. 353 ; Wallace v. Pomfret, 11 Ves. 542. The
cases on this subject are reviewed, and the whole doctrine is fully and aUy
discussed by Ld. Chancellor Sugden, in Hall v. Hill, suprcu
4 See ante, Vol. 1, ^ 289, 296 ; Guy v. Sharpe, 1 My. & K. 589.
5 Ibid. The *' circumstances of the case," which Chancellor Kent held
adnussiblc, in Dewitt v. Yates, 10 Johns. 156, undoubtedly were the collate-
ral facts here alluded to, since he refers to no others, in delivering his judg-
ment.
PABT VI.] OF THE EXCLUSION OP EVIDENCE. 373
tion of intent remains to be collected from the entire instru-
ment; and two bequests in the same will may be ascertained
to be either cumulative or substitutionary, according to the
internal evidence of intention, thus collected.^
§ 368. Fourthly^ as to the objection, that the witness is in-
competent to testify in the cause. The competency of the
parties in a suit in Equity as witnesses, and the mode of
obtaining their testimony, having already been considered,^
it remains only to speak of the competency of other witnesses.
On this point, the general rule in Equity is the same as at
Law, witnesses being held incompetent in both Courts, by
reason of deficiency in understanding, deficiency in religious
principle, infamy, or interest.^ A slight diversity of practice,
in the mode of taking the objection, will alone require a brief
notice in this place.
§ 369. In proceedings at Law, an objection to the compe-
tency of a witness may be taken in any stage of the cause,
previous to its being committed to the jury, provided it be
taken as soon as the ground of it is known to the party
objecting.* The same rule applies to examinations vivd voce
in Equity. But where the testimony is taken by depositions,
the practice is somewhat varied. The ancient forms of inter-
rogatories included a question whether the witness was or
was not interested in the^ event of the suit ; but the more
modern practice, when ground of incompetency is suspected,
is to file a cross-interrogatory. And though the modern rule
is, that the proper time for examination to competency is before
publication, interrogatories to credit alone being allowed after
publication ; ^ yet, where an objection to the competency is
^ Bnssell 17. Dickson, 2 Dm. & War. 1 88, is an example of this kind.
« Suproj ^ 814 - 318.
9 See Ante, Vol. 1, § 365 - 430.
* Ante, VoL 1, ^ 421.
^ Callaghan v. Rochfort, 3 Atk. 643 ; Fui€ell v. McNamara, 8 Yes. 324 ;
Mills V. Mills, 12 Yes. 406 ; Perigal v. Nicholson, Wightw. 68 ; Yaughan v.
Worrall, 2 Swanst 895, 398, 899. Where & party is examined as a witness
VOL. III. 32
374 LAW OP EVIDBNCB. [PAKT VI.
discovered by the party after publicatum^ it may be taken,
even at the heaving, if it be taken as soon as it is discovered^
and before the deposition is read.^ And this is done, not by
exhibiting articles, as in the ordinary case of discrediting a
witness, but by motion for leave to examine as to the point
of competency, upon affidavit of previous ignorance of the
fact.^ If the witness has been cross-examined after he was
known by the party to be incompetent, this is a waiver of the
objection;^ and the burden of proof seems to be on the
objector, to show that, at the time of the examination, he
had not a knowledge of the existence of the ground of objec-.
tion to his competency.*
between other parties in a suit, subject to all just exceptions, an objection
to bis testimony may be taken at the hearing. Mobawk Bank v, Atwater,
2 Paige, 60.
1 Callagban v, Bocbfort, 3 Atk. 643 ; Needham v. Smith, 2 Yem. 463.
And see Stokes v. M'Kerral, 3 Bro. Cb. C. 228 ; Rogers o. Dibble, 3 Puge,
238. So, if the ground of objection appears from the depoation itself, it
may be taken at the bearing, before the deposition is read. Perigal v. Nich-
olson, supra.
9 Callagban v. Bocbfort, supra,
3 Ante, Vol. 1, ^ 421 ; Supra, ^ 350, note..
4 Yaugban v, Worrall, 2 Swanst. 400, per Ld. Eldon. And see Fenton
V. Hughes, 7 Yes. 290.
J
PART VI.] OP THE WEIGHT AND EPPECT OP EVIDENCE. 376
CHAPTER IV.
OP THE WEIGHT AND EPPECT OP EVIDENCE.
1. ADMISSIONS.
§ 370. In regard to the effect to be given to an answer in
Chancery^ when read in evidence, we have seen that the rule
in Equity is somewhat different from the rule at Law.^ This
diversity arises not from a difference in the principles recog-
nized in the two kinds of tribunals, but from their different
modes of proceeding, and the different circumstances under
which the answer is offered in evidence. In Chancery, the
plaintiff reads the admissions in the answer in the s.ame cause,
merely as admissions in pleadings j of facts which he therefore
is under no necessity to prove. He is consequently only
bound to read entire portions of such parts of the answer as
he would refer to for that purpose ; or, in other words, the
principal passage in question, and such others as are explana-
tory of it, or are essential to a perfect understanding of its
meaning.^ In other respects, and so far only as it is respon-
sive to the bill, it is evidence in the cause. But when en
answer in Chancery is read in a Court of Law, it is read in a
different cause, between other parties, or between the same
individuals -in another forum, and in another and different
relation ; and it is offered and regarded, not as a pleading, but
^ Supra, $ 281.
9 Supra, 281, 284, 285.
376 LAW OF BVIDENCB. [PART VI.
as evidence of declarations and admissions of facts, previously
made in another place, by the party against whom it is
offered ; and in this view, it comes within the principle of
the rule respecting declarations and admissions in general,
namely, that the whole must be taken together.^ The dis-
tinction here adverted to is observed only in the cause in which
the answer was given ; for even in Chancery, when the answer
of a party in another cause is offered as evidence, the whole
of it becomes admissible, like other documents made evidence
in the cause.^ Every party, however, is not legally entitled to
equal credit, merely because the whole is admitted to be read;
but each part of the statement receives such weight as, under
all the circumstances, it may seem to deserve.
§ 371. In taking an account^ before the Master, the exami-
nation of the parties is entitled to peculiar weight and effect.
For though, when one party is examined as a witness against
another party in the cause, he stands in the situation of any
other witness, and may be cross-examined by the adverse
party, but his testimony cannot be used in his own favor ;
yet, when he is examined before a Master, in relation to his
own rights in the cause, the examination is in the natare of
a bill of discovery ; there can be no cross-examination by the
counsel ; and he cannot testify in his own favor, except so far
as his answers may be responsive to the interrogatories pro-
pounded to him by the adverse party. To this extent, his
answers are evidence in his own favor, on the same principle
that the answer of a defendant, responsive to the bill, is evi-
dence against the complainant. And any explanations, ne-
cessary to prevent any improper inference from his answer,
i Supra, 281, 290; Ante, Vol. 1, ^ 201, 202; Bartlett r. Gillard,
3 Russ. 166 ; Davis v. Spurling, 1 Russ. & My. 64 ; 2 Poth. Obi. by Evans,
App. No. xvi, sec. 4, p. 137; Hart v. Ten Eyck, 2 Johns. Ch. 88-92. And
see Mr. Emmett's argument in 1 Cowen, 744, n., quoted with approbation by
Marcy, J., in Forsyth r. Clarf. 3 Wend. 648.
^ Boardman p. Jackson, 2 Ball & Beat 386 ; Hart v. Ten Eyck, supra.
J
PART VI.] OP THE WEIGHT AND EFFECT OP BVIDBNCB. 377
will be regarded as responsive to the interrogatory. The same
effect is allowed to answers given upon an examination vivd
voce?'
§ 372. Where the account is of hng standings the Court
will sometimes give peculiar eflFect to the oath of the account-
ing party, by a special order, allowing him to discharge him-
self, on oath, of all such matters as he cannot prove by
vouchers, by reason of their loss.^ So, where one of several
executors or trustees has divested himself of the assets or
trust funds, by delivering them over to his co-executors or co-
trustees, the Court will, in a proper case, permit him to dis-
charge himself by his own oath, instead of exhibiting inter-
rogatories for the examination of the others.^ But this is
allowed only under special circumstances, and by special
directions ; without which the Master will not be authorized
to permit a party to discharge himself, by his own oath, from
the sums proved to have come to his hands.^ In the case,
however, of small sums, under forty shillings, it is an old rule
in Chancery to permit an accounting party to discharge
himself by his own oath, stating the particular circumstances
1 Benson v. Le B07, 1 Paige, 122. And see ATmsb7 v. Wood, 1 Hopk.
229 ; Hollister v, Barklej, 11 N. Hamp. 501. And although it is well set-
tled, that where a book or paper is produced \yj a partj, from which he is
charged, the same book or paper may be read by way of discharge ; Darston
V. Lord Oxford, 1 Eq. Cas. Abr. 10 ; Bayley v. Hill, lb. ; Boardman r. Jack-
son, 2 Ball & Beat. 382 ; Blount v. Barrow, 4 Bro. Ch. Cas. 75 ; 1 Yes. 546,
S. C. ; yet he will not be permitted to discharge himself by a separate affi-
davit ; Bidgeway v. Darwin, 7 Yes. 404 ; nor by a separate and independ-
ent statement of fact in his examination, not responsive to any interrogatory.
Higbee v. Bacon, 8 Pick. 484.
3 Peyton v. Green, 1 £q. Cas. Ab. 11 ; Holtscomb v. Rivers, 1 Ch. Cas.
127.
3 Dines v. Scott, 1 Turn. & Buss. 858 ; 3 Dan. Ch. Pr. 1428, 1429.
4 Ibid. It has been held sufficient for a servant or an apprentice, in an-
swer to a bill for an account, to say in general, that whatever he received,
was by him received and laid out agsun by his master's order. Potts v. Potts,
1 Yern. 207.
82 •
378 LAW OF EVIDENCB. [PAET VI.
of the payments,^ and swearing positively to the fact, and
not merely to his belief.^
§ 373. In considering the testimony in the cause, greater
weight and effect is given to facts admitted by the parties^ than
to evidence aliunde ; and greater regard is due to solemn ad-
missions, injudiciOf than to admissions by the parties enpais.
Admissions in the pleadings, and other solemn admissions in
judicio, are likened to algebraic /ormi^Z^, or as substitutes for
proof, to be received by the Judge in order to facilitate the
final decision of the cause ; and are deemed more satisfactory
than if found by a jury, and equally conclusive upon the par-
ties.^ The Court, in such cases, will only requure to be satis-
fied that the admission was understandingly and advisedly
made, either in the pleadings, or in the Cause, as a substitute
for proof, and without fraud, in order to hold the parties con-
clusively to it; without permitting it to be retracted except
by consent, in any subsequent stage of the proceedings, or upon
a re-hearing of the cause. And whether made by the party
in person, or made by his counsel, is immaterial ; the remedy
of the party being only against his counsel, except upon proof
of fraud.* From admissions of this conclusive kind, the Court
1 1 £q. Cas. Abr. 1 1, pi. 13 ; Anon. 1 Yem. 283 ; MarsMeld v. Weston,
2 Yem. 176 ; Remsen v. Remsen, 2 Johns. Ch. 501 ; O'Neil v. Hamill, 1 Ho-
gan, 183. And see Wicherley v, Wicherley, 1 Yern. 470 ; 2 Dan. Ch. Pr.
1425. In some of the United States, the same rule is adopted in trials at
law, in the proof of charges by books of account, with the suppletory oath of
the party. Union Bank v. Knapp, 8 Pick. 109; Dunn v, Whitney, 1 Fairf.
15 ; Ante, Yol. 1, ^ 118, n. In the settlement of administration-accounts in
the Probate Court, though the executor or administrator is bound to yeiify
the account by his oath, yet he is not therefore a competent witness, upon
his own motion, to support the items of account, except as to small charges
under forty shillings. Bailey v. Blanchard, 12 Pick. 166. In New York^
the same doctrine is recognised ; but the sum is fixed by statute at twenty
dollars. Williams t;. Purdy, 6 Paige, 166.
9 Bobinson v, Cunmiings, 2 Atk. 410.
3 ^nte, Yol.l,^ 186, 205, 527, d.
4 Bradish t;. Gee, AmbL 229. To a bill to have a jointure made np to a
certain sum, according to a parol agreement before marriage, the defendant
pleaded in bar that a settlement was made by a deed, subsequent to the pa-
rol agreement ; and it was held, that the deed was conclusive evidence that
in it all the precedent treaties and agreements were mei^ed. Bellasis v.
Benson, 1 Yem. 869.
PABT VI.] OP THE WEIGHT AND EFFECT OF EVIDENCE. 379
will infer any other facts naturally deducible from them ; and
when the facts thus inferred are so necessarily connected with
the facts admitted, that, if disproved, the admissions would
thereby be nullified, the evidence offered to disprove them will
be rejected. Thus, if it be admitted that a certain woman is
the widow of an individual named, their marriage and his
death are also facts which the Court would conclusively infer.
And if the admission of fact be made in the defendant's an-
swer, but the fact thus legally to be inferred from it be expressly
denied in the answer, the admission will be acted upon by
the Court, notwithstanding the denial. Thus, where the
case, as set forth in the answer, showed that the plaintiff had
an interest in the subject of controversy, the defendant was
ordered to pay money into Court, upon the strength of that
admission, notwithstanding the denial of such interest, in the
answer.^ So, where a bill was filed for the specific perform-
ance of an agreement to grant a lease, and also for an injunc-
tion to restrain an ejectment, brought by the defendant against
the plaintiff; and the answer admitted, that when the defend-
ant let the plaintiff into possession of the premises, it was
his own expectation^ and probably that of the plaintiff, that
the holding would last as long as the alleged term, but that
neither party was bound ; the Court held the defendant bound
by this admission of the agreement, and refused to dissolve
the injunction.^ And on the principle under consideration,
if the defendant puts in a plea in bar of the bill, and the
plaintiff does not reply, but sets down the plea^for argument,
the matter of the plea will be conclusively taken for true.*
§ 374. Though the solemn admissions of parties are re-
garded as thus conclusive, and though facts admitted on belief
only are ordinarily received as true, according to the maxim,
that what the parties believe the Court wiU believe; yet
whether this rule is applicable to admissions made by an eze^
^ DomyiUe v. Solly, 2 Buss. 872. And see Thomas v. Viators, &c. 7 6.
& J. 369.
' Atwood V. Barham, 2 Buss. 186. And see Gresley, Eq. ETid.459,460.
3 Gallagher v. Boberts, 1 Wash. C. C. B. 320.
380 LAW OP EVIDENCE. [PART VI-
cutor or cm administrator^ upon his belief in regard io the
liabilities of his testator or intestate, is a point not perfectly
clear. In one case, where a bill was filed by a creditor,
against an administrator, who in his answer stated that he
believed the debt was due ; though the Lord Chancellor was
inclined to think this sufficient, yet both Rlr. Fonblanque, of
counsel with the plaintiff, and ]V^. Richards, as amicus curicBy
doubted whether it was a sufficient foundation for a decree ;
and an interrogatory was therefore exhibited.^ Belief of a
party personally interested in knowings seems to be that belief
which is intended in the maxim.
^. TESTIMONY OP WITNESSES.
§ 375. In estimating the weight and effect to be given to
the testimony of witnesses^ there are no fixed rules, of univer-
sal application, each case being determined by the Judge, in
his discretion, according to its own circumstances. Yet, it
has been judicially said, that where a witness against the
moral conduct of another is under a necessity of first excul-
pating himself, no regard ought to be given to his evidence ; *
that the positive^estimony of one credible witness to a fact
is entitled to more weight than that of several others who
testify negatively, or, at most, to collateral circumstances,
merely persuasive in their character ; * and that the testimony
of a willing and uncorroborated witness, who merely states
his understanding of a conversation between the parties, is
entitled to no weight.* If a witness swears that he never
heard of a certain transaction, at or before a certain time, this
is regarded as a negative pregnant that he did hear of it after
that time.^ So, an affirmation by a vendor, that he did not
recollect his having authorized a person to sign his name to
a covenant for titie, will not be deemed either a denial of such
1 Hm V. Binney, 6 Vea. 738.
9 VTatkyiw v, VTatkyns, 2 Atk. 97.
3 Kennedy v. Kennedy, 2 Ala. 571 ; Todd v. Hardie, 5 Ala. 698 ; Litde-
iield t7. Clark, 3 Dessans. 165.
^ Powell V, Swan, 5 Dana, 1. ^
s Walker v. Walker, 2 Atk. 100.
J
PABT VI.J OF THB WEIGHT AND EFFECT OF EVIDENCE. 381
authority, or a disbelief that it' was actually given ; and fur-
ther proof of such authority will not be required, if the owner
knew of the sale, and acquiesced in it^
§ 376. It is a general rule, applicable not only to cadence
of conversations^ or declarations^ but to correspondence on a
particular subject, that if a party makes use of a portion of a
conversation or correspondence, he thereby gives credit to the
whole, and authorizes the adverse party to use at his pleasure
any other portion that relates to the same subject. But it
does not follow that the Court is bound, therefore, to give to
every part of such evidence equal credit and weight ; nor, on
the other hand, will it be treated as an absolute nullity ; but
if it be not entirely neutralized by opposing evidence, such
weight will be attributed to it as on the whole it may deserve.^
§ 377. It is obvious also to remark, that frequently a higher
degree of credit is due to the testimony of witnesses who
have either been shown to the adverse partt/y previous to their
examination, according to the ancient course in Chancery, or
sworn in open Cowrt^ in presence of the proctor on the other
side, according to the practice in the Ecclesiastical Courts,
than to that of witnesses whose names were unknown to the
adverse party until their depositions were published. For in
the former case, the party had ample opportunity to ascertain
the character of the witness, and to impeach it, if unworthy
of credit, while in the latter this was impossible. Yet here,
also, no inflexible rule can be laid down, each case being
chiefly governed by its own circumstances.
1 Talbot V. Sibree, 1 Dana, 56.
9 Gresley, Eq. Evid. 466. Bardett v. Gillard, 3 Rnas. 156. This rale is
restricted in its application to matters relating to the portion already addu-
ced in evidence. Hence the production of a letter-book, on the call of the
plaintiff, in order to prove the sending of certain letters copied therein, does
not entitle the defendant to read other letters in the same book, not referred
to in those which have been called for. Sturge v. Buchanan, 10 Ad. & El.
598. And see Prince v. Samo, 7 Ad. & EL 627 ; Catt v. Howard, 3 Stark.
R.5; iln^a, Vol. 1,^467.
382 LAW OP EVIDENCB. [PART VI.
§ 378. The maxim, Falsus in uno^falsibs in omnibus^ has a
juster application to witnesses in Chancery than in the Courts
of Common Law. For in the latter tribunals, the witness is
not only examined orally, but is subjected to a severe and
rapid q^oss-examination, without sufficient time for reflection
or for deliberate answers, and hence may often misrepresent
facts, from infirmity of recollection or mistake ; in which case,
to apply the maxim in extenso to his testimony would be
highly unjust. Yet such mistakes must of necessity detract
something from the credit due to his accuracy, though he
may not be chargeable with moral turpitude. But where,
according to the course of Chancery, the testimony of the
witness is taken upon interrogatories in writing, deliberately
propounded to him by the examiner, no other person being
present ; and where ample time is allowed for calm recollec-
tion, and any mistakes in his first answers may be corrected
at the close of the examination, when the whole is distinctly
read over to him ; there is ground to presume that a false
statement of fact is the result either of bad design, or of gross
ignorance of the truth and culpable recklessness of assertion ;
in either of which cases all confidence in his testimony must
be lost, or at least essentially impaired. K the statement is
deliberately and knowingly false in a single particular, the
credibility, of the whole is destroyed ; but if it is erroneous
without a fraudulent design, the credibility is impaired only
in proportion as the cause of the error may be chargeable to
the witness himself.^
1 This maxim, though yariously expressed by the ciYilians, has reference
not only to falsehood deliberately perpetrated in writings, but to mere mis-
takes in an oral examination. Qui in uno, imo in pluribus, minus vera scripse-
ritf in ceteris credendum ei non est Menoch. Concil. 1, n. SOO. Falsmn
prsesumatur commississe, qui semel falsarius fuit Id. Consil. 422, n. 125.
Falsum dictum k testibus in uno, et in aliqua parte sui examinis, totum eza-
men reddat falsum, nee probat ; Mascard. De Frobationibus, Concl. 744, n. 1 ;
etiamsi testis ignoranter in una parte deposuisset falsum ; quia tunc totnm
examen censetur falsum, et non probat Nam testis non debet deponere,
nisi id quod novit, vel vidit ; et in hoc non potest prstendere ignorantiain.
Id. n. 7.
PABT YI.] OF THB WEIGHT AND EFFECT OF EYIDBKGE. 383
3. AFFIDAVITS.
§ 379. The effect of judicial documents having been con-
sidered in a former volume, it only remains to take notice of
the nature, admissibility, and effect of affidavUSy in cases pe-
culiar to proceedings in Chancery.
§ 380. An affidavit is " a declaration, on oath or affirmation,
taken before some person having competent and lawful power
to a*dminister the same." ^ It is essential to public justice
that an affidavit be so taken as that, if false, the affiant may
be indicted and punished for perjury ; and to this end the
rules of practice respecting the form and requisites of affida-
vits are constructed. It is therefore generally required in
Chancery, that a came be first pending^ in which the affidavit
is to be used ; and hence, if it be taken before the bill is actu-
ally filed, it cannot be read, but will be treated as a nullity.^
It is sufficient that it be in terms so positive and explicit as
that perjury may be assigned upon it^ It must be properly
entitled ; for an affidavit, made in one cause, cannot be read
to obtain an order in another ; ^ and an affidavit not properly
entitled as of a cause pending, or otherwise appearing to have
been legally taken, cannot, if false, be the foundation of an
indictment for perjury.^ But it is sufficient if it was correctly
entitled when it was sworn, though the title of the cause may
afterwards have been changed by amendment.^ It is also
sufficient, where there are several defendants, if it states the
name of the first, adding " and others," without naming them ;
if there be no other suit pending between the plaintiff and
1 3 Dan. Ch. Pr. 1769 ; Hind. Ch. Pr. 451.
9 Hughes V. Byan, 1 Beat. 827 ; Anon. 6 Madd. 376 ; Supra, ^ 190.
3 Coale V. Chase, 1 Bland, 187 ; Supra, ^ 194.
4 Lnmbrozo v. White, 4 Dick. 150.
5 Hawley v. Donelly, 8 Paige, 415. And see Staflford v. Brown, 4 Paige,
860s Suproy ^190.
6 Hawes v. Bamford, 9 Sim. 658.
384 LAW OF BVIDENCB. [PAKT VI.
that defendant with others.^ It is also proper, though not
indispensably necessary, that the affidavit of any person
other than a party in the cause, should state the true place
of residence and the addition, as well as the name, of the
affiant.
•
§ 381. The office of an affidavit is to bring to the Court
the knowledge of facts ; and therefore it should be confined
to a statement of facts only, as they substantially exist, with
all necessary circumstances of time, place, manner, and other
material incidents. It is improper to state conclusions of law,
or legal propositions, such as, that a leg-al service was made,
or leg'al notice given, without stating the manner ; or that the
party has a good defence, without stating the nature and
grounds of it ; but the affidavit should state particularly how
the service was made or notice given, and what are the
grounds and merits of his defence or claim, that the Court
may judge of the legality, and whether the defence or claim
is well founded or merely imaginary ; and that the party may
be criminally proceeded against, if the statement be false.^
It must not state arguments, nor draw inferences, nor contain
other irrelevant, impertinent, or scandalous matter ; otherwise
such matter will be expunged by the Court, with or without
reference to a master, and the party or solicitor will be pun-
ished in costs.^
§ 382. An affidavit must also be sworn before some person
authorized by law to administer such oaths ; and generally
speaking, any person, authorized to take depositions or to
1 White V. Hess, 8 Paige, 544.
3 Meach v. Chappel, 8 Paige, 1S5 ; Sea Ins. Co. t;. Stebbins, Id. 563 ;
3 Dan. Ch. Pr. 1776. And see Bucker v. Howard, 2 Bibb, 166 ; Davis v.
Gray, 3 Litt. 451 ; Thayer v. Swift, Walk. Ch. 219. (Michigan.)
3 Powell V. Kane, 5 Paige, 265 ; 8 Dan. Ch. Pr. 1777 ; Jobeon ». Leigb-
ton, 1 Dick. 112 ; Phillips o. Muilman, Id. 118. Bat an affidavit will not be
referred for mere impertinence, after an affidavit in answer to it has been
filed. Burton, In re, 1 Buss. 880 ; Chimelli v. Chauvet, 1 Younge, 884.
PART VI.] OF THE WEIGHT AND BPFBCT OF EVIDBNCB. 386
examine witnesses in the cause, is qualified to take af&davits.^
Under the laws of the United States, regulating the practice
in the national tribunals, this authority is given to any Judge
of any Court of the United States, any Chancellor or Judge
of any Superior Court of a State, any Judge of a County
Court or Court of Common Pleas, or Mayor or chief ma-
gistrate of any city in the United States, not being of counsel
nor interested in the suit ; ^ any of the commissioners ap-
pointed by the Court to take acknowledgments of bail and
affidavits ; and any notary public.^ And an affidavit, taken
out of Court, and not thus sworn, will not be permitted to be
read.* Under the laws of the several States, affidavits to be
used in the State Courts may generally be taken before any
Judge of a Court of record, or a Justice of the Peace. Regu-
larly, an affidavit must not be sworn before an attorney or
solicitor in the cause ;^ but in some States, this is no valid
objection, if he is not the solicitor of record.®
§ 383. An affidavit may also be read in the State tribunals,
if taken in another State before any commissioner appointed to
take acknowledgments and administer oaths under the autho-
rity of the State in which the Court is holden ; or before a
Master in Chancery in such other State, though not such
commissioner ; ^ or taken under a commission issuing out of
the Court where the cause is pending; it being, in this case,
taken under the authority of the Court.^ If it appears that
an affidavit has been taken at b. place otU of the jurisdiction
of the magistrate or other officer, it will not be received ; but
1 See on this subject, ante, Vol. 1, ^ 322 - 824 ; Supra, § 251, 319.
» Stat. U. S. 1789, ch. 20, ^ 30 ; Stat. U. S. 1793, ch. 22, ^ 6.
3 Stat U. S. 1812, ch. 25 ; Stat U. S. 1850, ch. 52.
* Haight V, Prop'rs Morris Aqueduct, 4 Wash. 601.
5 Hogan, In re, 3 Atk. 813 ; Smith & Woodroffe, 6 Price, 230 ; 9 Price
478 ; 3 Dan. Ch. Pr. 1771 ; Wood r. Harper, 3 Bear. 290.
« The People p. Spaulding, 2 Paige, 326 ; McLaren v. Charrier, 5 Paige,
530.
7 Allen V. The State Bank, 1 Dev. & Bat 7.
8 Gibson v, Tilton, 1 Bland, 352.
VOL. III. ^^
386 LAW OF EVIDBirCB. [PABT VI.
if the place does not appear, it will be presnmed to have been
properly taken.^ Indeed, an affidavit taken out of the juris-
diction of the Court will seldom be rejected, if it appears to
have been duly sworn before a person authorized to adminis-
ter such oaths, by the laws of the country of his residence ;
and it will be sufficient if the person be proved to have been
at the time de facto in the ordinary exercise of the authority
he assumes.' In all these cases, the liability of the affiant to
an indictment for perjury does not seem to be much relied on,
in considering the admissibility of the affidavit ; but in many
States provision is made by law for the punishment of false
swearing in any deposition or affidavit taken under a com-
mission from abroad.
§ 384. The weight and effect given to affidavits is chiefly in
admitting them as a sufficient foundation for ulterior pro-
ceedings. Thus, where an affidavit, whether of the party, or
of another person, is required in support of a motion or a pe-
tition, or a plea, which is its proper use and office, it is ordi-
narily received for that purpose as conclusive evidence of
the facts which it contains. The like effect is given to affida-
vits in inquiries before a Master, wherever they are received,
no affidavit in reply being read, except as to new matter
which may be stated in the affidavitis in answer, and no fur-
ther affidavits being read, unless specially required by the
Master.^ They are also received as satisfactory proof of
exhibits at the hearing, in cases already mentioned.^ So, in
certain cases of fraudulent abstracting of the plaintiff's pro-
perty by the defendant, we have seen that the amount of his
^ Parker v. Baker, 8 Paige, 428; Lambert v. Maris, EUJst. Dig. p. 173.
9 Pinkerton v. Bamsley Canal Co. 8 Y. & J. 277, n. ; EUia v, Sindair. Id.
273 ; Ld. Einnaird v. Saltoun, 1 Madd. R 227 ; Garvey r. Hibbert, IJ. &
W. 180; 8 Ban. Ch. Pr. 1771-1778. But see Kamy t7. Kirk, 9 Dana,
267, contra. The certificate of a notary public is not sufficient to prove the
official character of the foreign ma^trate. Hutcheon v.^Mannington, * € Yes.
823.
3 Orders of April 3, 1828, Ord. 66; LaVs Pract U. S. Conrts, p. 645.
* Sapra^ ^ 310.
PART VI.] OF THE WEIGHT AND EFFECT OF EVIDENCE. 387
damages, in the absence of other proof, may be ascertained
by the affidavit of the plaintiff himself, to which, in odium
spolicUoriSj full credit will be given.^ Conclusive effect is also
given to the affidavit of the party in certain other cases, where
it is required in verification of his statement, for the satisfac-
tion of the Court. Thus, to a bill of interpleader^ it is requi-
site that the plaintiff should make affidavit that the biU is not
filed in collusion with either of the defendants, but merely of
his own accord, for bis own particular relief.^ So, in a biU
for the examination of witnesses de bene esse, where, from
their age or infirmity, or their intention of leaving the coun-
try, there is apprehended danger from the loss of their testi-
mony, positive affidavit is required of the plaintiff, stating the
reasons and particular circumstances of the danger, and the
material facts to which the witness can testify ; lest the bill
be used as an instrument to retard the trial ; and to this affi-
davit full credit is given.^ If the affidavit is to the party's
belief only, and does not state the grounds of his believing
that the witness will so testify, or does not state that he is
the only witness by whom the facts can be proved, it will not
be sufficient.^ So, where an accidentai loss is the essential
fact giving jurisdiction to the Court, and on that ground the
prayer of the bill is not only for discovery, but also for relief;
the Court will not assume jurisdiction upon the mere sugges-
tion of the fact, but requires preliminary proof of it by the
affidavit of the party, filed with the bill; and to this full
credit is given, at least until it be overthrown by proof at the
hearing. Such is the case of a bill for discovery and relief
1 Supra, ^ 844 ; Ante, Vol. 1, ^ 848.
9 8 Dan. Ch. Pr. 1761, by Perkiiw; Story, Eq. PI. ^ 291, 297 ; Bignold
V. Audland, U Sim. 38. And see Langston v. Boylston, 2 Yes. 102, 108 ;
Stevenson v. Anderson, 2 Y. & B. 410. In Connecticul this is not required.
Jerome v. Jerome, 5 Conn. 353 ; Nash v. Smith, 6 Conn. 421, 426.
3 1 Dan. Ch. Pr. 462 ; Story, Eq. PI. ^ 309 ; Bules of Circuit Courts U.
S. in Equity, Reg.*70; 2 Dan. Ch. Pr. 1117, 1118; Oldham v. Carleton,
4 Bro. C. C. 88 ; Laragoity v, Atto. Gen. 2 Price, 178 ; Mendizabel v, Ma-
chado, 2 Sim & Stu. 483.
4 Bowe V, , 18 Yes. 261. ^
388 LAW OF BVIDENCB. [PART VI.
in Chancery, founded on the alleged loss,^ or the unlawful
possession and concealment by the defendant^ of ah instrument^
upon which, if in the possession of the plaintiff, an action at
law might be maintained by him against the defendant.^
The reason of requiring such preliminary proof in these cases,
is, that the tendency of the bill is to transfer the jurisdiction
from a Court of Law to a Court of Equity.
§ 385. Full weight and credit is also given to the plaintiff's
affidavit, where it is required in order to support an ex parte
application for some immediate relief, in cases which do not
admit of delay. The affidavit in such case must be made
either by the plaintiff himself, or, in his absence, by some
person having certain knowledge of the facts ; ^ and it must
state the facts on which the application is grounded, positively
and with particularity, and not upon information and belief
only, nor in a general or a doubtful manner.^ It must also
state either an actual violation of his right by the defendant,
or his apprehension and belief of imminent and remediless loss
or damage, if the case be such, together with the facts on which
his belief is grounded.^ If the application be for an injunction
to stay waste^ or other irreparable mischief, the affidavit must
state the plaintiff's actual and exclusive title to the land or
premises, and the conduct of the defendant, actual or appre-
1 Walmsley v. Child, 2 Vez. 341, 844 ; Campbell v. Sheldon, 13 Pick. 8 ;
Thornton v. Stewart, 7 Leigh, 128. In Virginia, an affidavit' does not seem
to be required. Cabel t;. Megginson, 6 Munf. 202. If the proof is clear,
both of the loss, and that the instrument, if negotiable, was not negotiated
nor payable to bearer, so that the defendant cannot hy a,nj possibilitj be ex-
posed to pay it twice, the plaintiff may now recover at law. See ante, Vol-
2, ^ 156.
s Anon. 8 Atk. 17. And see Livingston v. Livingston, 4 Johns. CL 297 ;
Laight V. Morgan, 1 Johns. Cas. 429 ; Le Roy v. Veeder, Id. 417 ; 1 Dan.
Ch. Pr. 449, 460.
3 8 Dan. Ch. Pr. 1890; Campbell v. Morrison, 7 Paige, 157 ; Ld. Byron
V. Johnston, 2 Meriv. 29.
4 Ibid. Field v. Jackson, 2 Dick. 599 ; Whitelegg v. Whitelegg, 1 Bxo.
C. C. 57, and note by Perkins; Storm v. Mann, 4 Johns. Ch. 21.
5 Dan. Ch. Pr. 1891.
PART VI.] OF THK WBIGHT AND EFFECT OF BVIDBNCB. 389
hended, in violation of his right^ If it be to restrain the
infringement of a patent j he must swear to his present belief,
at the time of taking the oath, that he is the original inventor ;^
or, if it be to restrain the infringement of a copyright^ the bill
being filed by an assignee, he mnst state facts showing the
legality of the immediate assignment to himself.^ In an ap-
plication for a writ of ne exeat regnoj the affidavit must be
positive and direct, that a debt is due and payable ; that it is
certain and not contingent ; that the plaintiff believes that
th^ defendant actually intends to go out of the jurisdiction,
and the reasons which he has for believing so ; and that the
debt will thereby be endangered.^ Nothing short of such
directness and particularity will suffice ; except that in mat-
ters of pure account, the plaintiff's belief as to the amount of
the balance due to him is sufficient.^ Similar strictness is re-
quired in affidavits in support of applications to restrain the
transfer of negotiable securities, or of other property, or the
payment of money, or the like. In these and all other cases,
where the danger of remediless loss or damage is imminent,
the Court acts at once, upon the credit given to the plaintiff's
affidavits alone ; but in other cases decided upon affidavits,
where no such necessity exists, they are ordinarily received
on both sides, and weighed, like other evidence, according to
their merits.
1 Hanson v. Gardiner, 7 Yes. 805 ; Jackson v. Cator, 5 Yes. 688 ; East-
bnm V. Kirk, 1 Johns. Ch. 444.
s Hill V. Thompson, 8 Meriv. 624.
3 8 Dan. Ch. Pr. 1891.
4 2 Storj, Eq. Jar. ^ 1474 ; Oldham v. Oldham, 7 Yes. 410; Etches v.
Lance, Id. 417 ; 8 Dan. Ch. Pr. 1981, 1932.
6 Rico V, Gualtier, 8 Atk. 501 ; Jackson v. Fetrie, 10 Yes. 164 ; Hyde v.
YHiitfield, 19 Yes. 854.
•88
PART VII
OF EVIDENCE IN COURTS OF ADMIRALTY
AND
MARITIME JURISDICTION.
PART VII.
OF EVIDENCE IN COURTS OF ADMIRALTY AND MARITIME
JURISDICTION.
CHAPTER I.
PREUMINART OBSERVATIONS.
§ 386. The administration of the Admiralty and Maritime
jurisprudence in the United States is confided originally and
exclusively to the District Courts.^ From the final judgments
and decrees of these Courts in admiralty and maritime causes,
where the value of the subject in dispute, exclusive of costs,
exceeds fifty dollars, an appeal lies to the Circuit Court next
to be holden in the same District ; ^ and where the value ex-
ceeds'two thousand dollars, aii appeal from the final judg-
ment or decree of the Circuit Court, in such causes, lies to
the Supreme Court of the United States.^ And in these
appeals, as well as in Equity causes, the evidence goes up
with the cause, to the appellate tribunal, and therefore must,
be reduced to writing.* The District Courts also take juris-
diction of certain causes at common law, the consideration of
which is foreign to our present design.
1 U. S. Constitution, Art. 8, ^ 3 ; Stat 1789, cb. 20, ^ 9.
« U. S. Stat 1803, ch. 40, [93] ^ 2.
8 U. S. Stat. 1803,.ch. 40, [93] ^ 2.
4 The Boston, 1 Sumn. 382; U. S. Stat. 1789, ch. 20, ^ 19, 30 ; Stat
1803, ch. 93, ^ 3.
394 LAW OF EVIDENCE. [PAKT VII.
§ 387. The general admiralty jurisdiction, conferred by the
constitution and laws of the United States, is divisible into
two great classes of cases ; one dependent upon locality ; the
other, upon the nature of the contract. The former includes
acts and injuries done upon the sea, whether upon the high
seas, or upon the coast of the sea, or elsewhere within the ebb
and flow of the tide. The latter includes contracts, claims,
and services, purely maritime, and rights and duties apper-
taining to commerce and navigation. The former of these
classes is again divided into two branches ; the one embrac-
ing acts, torts, and injuries strictly of civil cognizance, inde-
pendent of belligerent operations ; the other embracing cap-
tures and questions of prize, arising jv/re belli} The cogni-
zance of all these, except the last, belongs to the Instance side
of the Court, or what is elsewhere termed the Instance Court
1 8 Story on the Constitution, ^ 1662. The subject of admiralty jurisdic-
tion, as it does not directly affect the principles of the law of evidence, is
deemed foreign from the plan of this work, and, therefore, is only incident-
ally mentioned. It is well known that in the United States this jurisdictioa
is asserted and actually maintained in practice more broadly than in Eng-
land. The history and grounds of this difference, and the true nature, ex-
tent and limit of the admiralty jurisdiction, as recognized in the constitution
and laws of the United States, have been expounded with masterly force of
reasoning and affluence of learning, by Mr. Justice Story, in 1815, in the
leading case of De Lovio v. Bolt, 2 Gall. 398-476 ; and by Judge Wiire, in
the Huntress, Daveis, R. 93-111. Other cases on this subject are men-
tioned, and a concise summary of the discussion is given in 1 Kent, CoomL
365 - 380, and notes, to which the student is referred. See, also, Curtis on
Merchant Seamen, p. 342-367. The jurisdiction, as asserted in De Lotio
V, Boit, includes, among other things, charter-parties and affreightments ;
marine hypothecations and bottomries ; contracts of material-men ; seamen's
wages ; contracts between part-owners ; averages, contributions and jetti-
sons ; and policies of insurance. To these may be added salvage ; marine
torts; damages and trespasses; assaults and batteries on the high seas ; seiz-
ures under the revenue and navigation laws, and the laws prohibitory of the
slave trade ; ransom; pilotage; and surveys. The jurisdiction of the Admi-
ralty over policies of insurance was re-afflrmed by Mr. Justice Story in 1822,
in Peele v. The Merchants* Ins. Co. 3 Mason, 28, and again in 1842, in Hale
o. The Washington Ins. Co. 2 Story, R 182; and is understood to haTe
been approved by Marshall, C. J. and Mr. Just Washington ; Id. 183 ;
1 Brock. R, 380; though denied by Mr. Just Johnson, in 12 Wheat 638.
PABT Vn.] PRELIMINARY OBSERVATIONS. ' 395
of Admiralty ; and that of the latter, or prize-causes, belongs
to the Prize Court. In England, a distinction is made be-
tween these two, they being regarded as separate Courts ;
the former being the ordinary and appropriate Court of Admi-
ralty, proceeding according to the civil and maritime law,
from whose decrees an appeal lies to the Delegates ; and the
latter, proceeding according to the course of admiralty and
the law of nations, with an appeal to the Lords Commis-
sioners of Appeals in Prize Causes. But in this country
these two jurisdictions are consolidated and vested in the
District Courts, though the jurisdiction of prize is dormant,
until called into activity by the occurrence of war.^
§ 388. In the infancy of this Court under the present na-
tional Constitution, it was required by statute,^ that "the
forms and modes of proceedings, in causes of Equity, and of
Admiralty and Maritime jurisdiction, shall be according to
the course of the civU tawJ^ By a subsequent statute,^ it was
provided that " the forms and modes of proceeding shall be,
in suits of equity, and in those of admiralty and maritime
jurisdiction, according to the principles, rules, and usages
which belong to Courts of Equity and to Courts of Admi-
ralty, respectively, as contra-distinguished from Courts of
Common Law." The course of proceeding in the civil law
was thus made the basis of the general rule of proceeding in
these Courts.^ This last provision was afterwards extended
by statute ^ to the Courts held in those States which had been
admitted into the Union subsequent to the passage of the
act first above mentioned ; subject, however, to such altera-
tions and additions as the Courts themselves, in their discre-
1 1 Kent, Comm. 358 - 855 ; Jennings v. Carson, 1 Pet Adm. R. 1 ;
4 Cranch, 2, S. C. ; Glass v. Sloop Betsey, 8 Dall. 6, 16. The jurisdiction
of prize-causes, was afterwards expressly Tested in the District Courts, by
Stat 1812, eh. 430, [107] § 6.
9 U. S. Stat. 1789, ch. 21, ( 2.
3 U. S. Stat. 1792, ch. 36, ^ 2.
4 The Adeline, 9 Cranch, 284.
5 U. S. Stat. 1828, ch. 63, ^ 1.
396 LAW OF EVIDBNCE. [PABT VIL
tion, might deem expedient, or as the Supreme Court might,
by rules, prescribe. And by a later statute,^ the Supreme
Court is fully empowered, from time to time, to prescribe and
regulate and alter the forms of process to be used in the Dis-
trict and Circuit Courts, and the forms and modes of framing
and filing libels, bills, answers, and other proceedings and
pleadings in suits at Common Law or in Admiralty and in
Equity, in those Courts, and the modes of obtaining and
taking evidence ; and generally to regulate the whole practice
therein, so as to prevent delays, and to promote brevity and
succinctness in the pleadings and proceedings.
§ 389. Under this last statute, the Supreme Court has made
rules, prescribing with some particularity, as hereafter will be
seen, the method of pleading and of practice in the District
and Circuit Courts, not only in suits at Common Law, but
also in causes in Equity and in Admiralty. But as the course
of the Civil Law is still recognised as the basis of the prac-
tice, in Admiralty, it is obvious that this Law is still to be
resorted to, in all points of proceedings and practice, not
otherwise regulated by the rules of the Supreme Court. It
is, however, to be remembered, that though the practice, in
Courts of Equity and of Admiralty, is originally deduced
from the common fountain of the Civil Law, it has acquired,
in its progress, a diversity of modes, from the different chan-
nels through which it has been drawn ; the practice in Equity
having been mainly derived through the medium of the Canon
Law, as administered in the Ecclesiastical Courts, while the
general rules of practice in Admiralty have come to us more di-
rectly from the Roman Civil Law, though somewhat modified
by the maritime codes subsequently promulgated.^ It is there-
1 U. S. Stat. 1842, ch. 188, ^ 6.
9 8 Bl. Comm.446 ; 1 Spence, Eq. Jur. of Chancery, p. 709-712 ; 2 Browne,
Civ. & Adm. Law, p. 34, 348 ; Ware's Rep. 298, 389. I commend to
the student's attentive perusal the decisions of Judge Ware, in the District
Court of Maine ; which, for depth of learning, and copiousness of legal lite-
rature, have not been surpassed by those of any other District Judge in the
United States.
PART VII.] PRBUMINART OBSERVATIONS. 397
fore material for ns to undeiBtand the leading rules of prac-
tice in the Roman tribunals.
§ 390. In the earlier period of the Roman law, the party
aggrieved might summon his adversary in person, or, if he
resisted or hesitated, struUve pedeSj might seize him, obtorto
coUoj and drag him before the Prcetor ; but afterwards, and
prior to the time of Justinian, the practice was settled in
nearer conformity to that which has come down to our times,
by causing the party to be summoned by the apparitors
or officers of the Court^ The defendant appearing, either
voluntarily, or by compulsion, the plaintiff proceeded to offer
to the Prcetor his libel or cause of complaint in writing, and
with it produced such contracts or instruments as were the
foundation of his title or complaint. The defendant then
gave bail to appear at the third day afterwards, this period
being allowed to him, to consider whether or not he would
contest the demand. If he contested it, for which a formula
was prescribed, the contestalio lilts being equivalent to the
general issue at common law, he might demand that the
plaintiff be sworn that the suit was not commenced out of
malice, but that the debt or cause of action was in his opinion
well founded ; and the plaintiff might require the oath of the
defendant, that his defence was made in good faith, without
malice, and in the belief that it was a good defence.^ These
oaths v/ereiiermedjuramerUa calumnue^ post litem contestatam;
and were required, not as evidence in the cause, but profess-
edly as a check to vexatious litigation.' The Prcetor then
I Browne, Civ. k Adm. L. 350, 351.
s Gilbert) Forum Bomanum, p. 21, 22 ; Ware, R. 396. Et actor quidem
joret, non calumniandi animo litem se movisae, sed existimando bonam causam
habere : Reus autem non aliter suis allegationibus utatur, niai prius et ipse
juraverit, quod putans se bona instantia uti, ad reluctandom penrenerit Code,
lib. 2, tit. 59, 1. 3.
3 Ware, R 395, 396. The nature of this remedy is thus explained bj
the learned Judge : — '' In all countries, and under all systems of jurispru-
dence, it has been found necessary to establish some check to causeless and
vexatious litigation. In the jurisprudence of the common law, the principal
VOL. III. 34
398 LAW OF EVIDENCE. [PAKT VH.
•
appointed the Judges, dabat jtidiceSj for trial of the cause,
before whom the contested libel was brought ; and upon this
libel the plaintiff put in his ^^ positions,^^ to which the defendant
was obliged to answer, in order to ascertain what he would
admit, and so to supersede the necessity of -proving it But
if he denied any part of the positions, then the part denied
was formed into distinct " articles^^ and upon these articles
interrogatories were framed, to be exhibited to the witnesses,
who were examined upon these alone, by one of the judges,
and the depositions were taken in writing by a notary or one
of the judge's clerks. After sentence was pronounced by the
Judges, it was sent to the Prcetor to be executed.^
check is the liability to costs. Bat in the jurisprudence of ancient Borne, it
appears that a party was not liable for the costs of the adverse party, merely
because judgment was rendered against him. He was liable only when he
instituted an action without probable cause ; that is, when the suit was vexa-
tious, or, in the language of the Roman law, calumnious ; and then costs
were not given against him, as part of the judgment, but could be recovered
only by a new action, called an action of calumny, corresponding to an ac-
tion for a malicious suit at common law. By this action, the party could
recover ordinarily a tenth, but in some cases a fifth and even the fourth, of
the sum in controversy in the former action. This was given as an indem-
nity for his expenses, in being obliged to defend himself against a vexatious
suit, (a)
" In the time of Justinian, and perhaps at an earlier period, the action of
calumny had fallen into desuetude, and he, as a substitute, required the oath
of calumny." "But the oath of calumny, though not evidence, was an es-
sential part of the proceedings in the cause. It was ordered by Justinian to
be officially required by the Judge, although not insisted upon by the pai^
ties, and if omitted it vitiated the whole proceedings, (b) The practice of
requiring the oath of calumny appears to be preserved generally in the civil
law Courts of the continent of Europe. It is not, however, observed in
France, and Dupin condemns it as conducing more to perjury than to
the prevention of litigation, which, he says, is more efiectually checked by a
liability for costs." (c) Id. p. 895 - 897.
1 Gilb. For. Bom. p. 22, 23.
(a) Gaii, Comm. Lib. 4, ^ 175 -- 8 ; Inst. 4, 16, 1 ; Yinn. in loc.
(b) Gail, Pract. Obs. L. 1 ; Obs. 23, 1 and 90, 1 ; Huber Pnelect. vol. 1,
L. f, 16, 2.
(c) Heinn. Recitationes, ed Dupin, 4, 16, 1.
PART VIL] preliminary OBSERVATIONS. 399
§ 391. "Another part of the Roman jurisprudence, from
which our Admiralty practice has been in part derived, is
the interrogatory actions of the Roman law. These were
derived from the edict of the praetor, and constituted a part
of that large portion of the law of Rome called Jus PrcetO'
rium, or Jus honorarium. The reason of the introduction of
these actions was this. If the actor demanded in his action
more than was his due, he failed in his whole demand ; judg-
ment was rendered against him, and if he failed for this
cause, it was with difficulty that he could be restored to his
rights in integrum. As he could not in all cases know the
precise extent of his rights, or rather of the defendant's lia-
bility, that is, whether he was liable for his whole demand,
in solido^ or for a part, as if the action was against him in his
quality of heir, whether he succeeded to the whole inheritance
or to a part, this action was allowed by the preetor, in the na-
ture of a bill of discovery to compel a disclosure, for the pur-
pose of enabling the actor to make his claim to correspond
precisely with his right and with the defendant's liability." ^
§ 392. By a constitution of the emperor Zeno, the law de
pluris petitionee by which the actor failed, if he demanded too
much, was abolished, and by the time of Justinian, if not at
an earlier period, these interrogatory actions had fallen into
disuse, as we learn from a fragment of Callistratus preserved
in the Digest. A new practice arose of putting the interroga-
tories after contestation of suit, and the answers thus obtained,
instead of furnishing the grounds for the commencement of
an action, became evidence in the case for the adverse party.
This appears from the law referred to above : ad probcUiones
suffidunt ea, qum ab adversa parte ezpressafuerint. The gene-
ral practice of the Courts, which have adopted the forms and
modes of proceeding of the Roman law, of requiring the
parties to answer interrogatories under oath, called positions
and articles, or facts and articles, seems to be derived through
this law of the Digest and the later practice of the Roman
1 Ware, R. 897.
400 LAW OF EVIDENCE. . [PABT VH.
forum, from the ancient interrogatory action ; although Heln-
neccius has expressed a contrary opinion." ^ This form of
proceeding '< has passed, with various modifications, into the
[practice of the Courts of all nations which have adopted the
Roman law as the basis of their jurisprudence. Either party
may interrogate the other as to any matter of fact which
may be necessary to support the action or maintain the de-
fence, and the party interrogated is bound to answer, unless
his answer will implicate him in a crime. The answer is
evidence against himself, but not to affect the rights of third
persons." ^
§ 393. << Modern practice has introduced another innovation,
and has authorized, for the purpose of expediting causes, the
introduction substantially of the positions and articles into
the libel itself, although regularly they cannot, in the form of
positions and articles, be propounded until after contestation
of suit, and of course not until after the answer is in. A libel
in this form is said to be an articulated libel, or a libel in
articles. The evidence sought for is then obtained in the
answer. It is a special answer to each article in the libel,
and the litis contestation when the pleadings are in this form,
is said to be special and particular, in contradistinction to a
simple libel, and a general answer amounting to the general
issue. An issue is formed on each article.
" From this account, it is apparent, that the practice of the
Admiralty, so far as relates to the libel and answer, is in its
forms identical with that of the Roman law. As in the Ro-
man law, so in the Admiralty, the parties are required to verify
the cause of action and the defence by oath ; the libel may
either be simple or articulated, and the answer must correspond
with it ; either party also may require the other to answer
interrogatories on oath, touching any matters which may be
necessary to support the libel or the answer." *
1 Ware, R. 898.
« Ibid.
3 Ware, R. S99. I have not hesitated to adopt the language of Judge
PART VU.] PBELIMOARY OBSBBVATIONB. 401
§ 394. In the Roman practice, the libel having been filed,
the defendant answered the charge, either by confessing it,
or by a general denial of its truth, which is the original mean-
ing of the litis contestatio; or by a defensive exception ; either
declinatory to the jurisdiction, or dilatory, postponing or delay-
ing the suit, or peremptory, answering in effect to the plea in
bar of the common law. The defendant having pleaded, the
plaintiff replied ; and the defendant might rejoin, termed a
duplicalioj beyond which the parties were seldom suffered to
go.^ But though the old course of practice in the Admiralty
permitted new matter to be thus introduced by way of repU-
cation and rejoinder, the modern and more approved practice
is to present new facts, when rendered necessary, in an amend-
ment of the libel and answer.^
§ 395. Upon the basis of the Roman forms of proceeding,
the outlines of which have been thus briefly sketched, the rules
of modern practice have been founded ; and upon this basis
the Supreme Court of the United States, under the authority
given by the statute before cited,^ has constructed its Rules
of Practice foi^e Courts of the United States, in all causes
of Admiralty and Maritime Jurisdiction on the Instance side
of the Court. By these Rules it is ordered,^ that all libels in
instance causes^ civil or maritime, shall state the nature of the
cause, as, for example, that it is a cause civil and maritime.
Ware on this subject, his lucid and succinct account of the forms of proceed-
ing in the Boman tribunals being precisely adapted to my present purpose.
The student will find a more extended account of those forms of proceeding, in
Gilbert's Forum Bomanum, ch. 2, 3, and 4. And see Story, Eq. PL ^ 14, note ;
Oughton, Ordo Judiciorum, pamm; Brissonius, De Formulis Pop. Bom.
lib. 5, De formulis judiciariis. See also Sherwood v. Hall, 8 Sumn. ISO.
1 2 Browne, Civ. & Adm. L. 362-867, 416.
9 The Sarah Ann, 2 Sumn. 208 ; Coffin v. Jenkins, 3 Story, R. 108, 121.
New matters may also be introduced by way of supplemental libel and an-
swer; as in Waring o. Clarke, 5 How. S. C. R. 441.
8 U. S. Stat 1842, ch. 188, ^ 6 ; Supra, ^ 388.
^ Reg. 23. No summons or other mesne process is to be issued until the
libel is filed. Beg. 1.
34 •
402 LAW OF EYIDSNCB. [PART YH.
of contract, of tort or damage, of salvage, or, of possession,
or otherwise, as the case may be ; and if the libel is in rem^
that the property is within the District; and if inpersonam^
the names, occupations, and place of residence of the parties.
The libel must also propotmd and articulate^ in distinct artides,
the various allegations of fact, upon which the libellant relies
for the support of his suit, so that the defendant may be en-
abled to answer distinctly and separately the several matters
contained in each article ; ^ and it must conclude with a prayer
of the process requisite to enforce the rights of the libellant,
and for such relief omd redress as the Court is competent to
give in the premises. And the libellant may further require
the defendant to answer on oath all interrogatories propounded
by him at the close or conclusion of the libel, touching all or
any of the allegations it contains.^ It is not necessary, in all
cases, that the libel be sworn to in the first instance, unless
when it is founded on a claim of debt ; but the defendant
may always demand the oath of the libellant to the libel, if
he chooses.^ In suits in rem^ however, the party claiming the
property is required to verify his claim on oath or affirmation,
stating that he, or the person in whose behitf he interposes,
and none other, is the true and bond fide owner of the pro-
1 The Tirgil, 2 W. Rob. 204 ; The Boston, 1 Sunm. 328 ; Treadwell r.
Joseph, Id. 890. In a suit for wages for a share in a whaling vojage, where
a charge of general and habitual misconduct is to be made out in defence, it
should be propounded in exact terms for the purpose ; and where specific
acts of misconduct are to be relied on, they should be specifically alleged,
with due certainty of time, place, and other circimostances. Macomber v.
Thompson, 1 Sumn. 884 ; Ome t^. Townsend, 4 Mason, 542. But the libel
need not state matters of defence. The Aurora, 7 Cranch, 882, 889.
9 It is obvious that this rule expresses nothing more nor less than is re-
quired in the old Latin couplet, quoted in Conset's Brief Discourse on the
Form of a Libel : —
Quis, quid, coram quo, quo jure petatur, et ^ quo,
Recte compositus quique Libellus habet.
See Hall's Adm. Pract. p. 124 ; Infroj ^418.
3 Hutson V. Jordan, Ware, B. 891 ; Coffin v, Jenkins, 8 Story, K 121.
PART Vn.] PRBLDflNAEY OBSERVATIONS. 403
perty ; and also stating his authority, if he is acting for the
owner.^
§ 396. In like manner it is required that informations^ and
libels of information for any breach of the revenue or navi-
gation or other laws of the United States, should state the
place of seizure, whether it be on land, or on the high seas,
or on navigable waters within the admiralty and maritime
jurisdiction ; and the District within which the pr6perty is
brought, or where it then is. The information or libel must
also propound, in distinct articles, the matters relied on as
grounds of forfeiture, averring the same to be contrary to the
statute or statutes in such case provided; and concluding
with a prayer of process, and notice to all persons in interest,
to appear and show cause why the forfeiture should not be
decreed.^
§ 397. Informations and libels may be amended in matters of
form, at any time, on motion as of course ; and new counts
or articles may be filed and amendments in matters of sub-
stance may be made, on motion and upon terms, at any time
before the final decree.^ Where merits clearly appear on the
1 Rules in Admiralty, Reg. 26 ; U. States v. Casks of TVine, 1 Pet 547,
549 ; Houseman v. The North Carolina, 15 Pet 40. As to the persons en-
tiUed to make chiim, see The Lively, 1 Gall. 815 ; The Sally, Id. 400 ; The
Adeline, 9 Cranch, 244 ; The Bello Comines, 6 Wheat. 152 ; The Ante-
lope, 10 Wheat 66 ; The London Packet, 1 Mason, 14 ; The Packet, 3 Ma-
son, 255 ; The Boston, 1 Sumn. 828, 833.
9 Rules in Admiralty, Reg. 22. Technical niceties, unimportant in them*
selves, and standing only on precedents, the reason of which cannot be dis-
cerned, are not regarded in libels of information in Admiralty. It is suffi-
cient if the offence be described in the words of the law, and be so described,
that if the allegation be true, the case must be within the statute, the facts
being so indicated as to give reasonable notice to ihe party to enable him to
shape his defence. The Hoppet, 7 Cranch, 894 ; The Samuel, 1 Wheat
15 ; The Merino, 9 Wheat. 401 ; The Pahnyra, 12 Wheat 18.
' Rules in Admiralty, Reg. 24. And see Ome v. Townsend, 4 Mason,
541.
404 LAW OP EVIDBNCE. [PABT VII-
record, it is the settled practice in admiralty not to dismiss
the libel for any defect or mistake in the statement of the
libellant's claim or title, but to allow him to assert his rights
in a new altegation.^ But though the most liberal principles
prevail in Admiralty Courts in regard to amendments, the
libellant will not be permitted, in the appellate Court, to intro-
duce, by way of amendment, a new res or subject of contro-
versy, which did not go up by appeal.^
§ 398. In all causes civil and maritime, whether in rem or
in personam^ the answer of the defendant to the allegations in
the libel must be on oath or solemn affirmation. His answer
must be full, and explicit and distinct to each separate article
and separate allegation in the libel, in the same order as they
are there numbered ; and he is required to answer, in like
manner, each interrogatory propounded at the close of the
libeL^ But he may, in his answer, object to answer any alle-
gation or interrogatory in the libel, which will expose him to
any prosecution or punishment for a crime, or to any penalty
or forfeiture of his property for a penal offence.* K he omits
to answer upon the return of the process, or other day as-
signed by the Court, the libel may be taken pro confesso
against him.^ And if he answers, but does not answer fully,
1 The Adeline, 9 Cranch, 284 ; Anon. 1 Gall. 22.
3 Houseman p. The North Carolina, 15 Pet. 40, 50. And see 2 Browne,
Civ. & Adm. L. p. 416 ; The Boston, 1 Sumn, 328.
3 Rules in Admiralty, Reg. 27. And see The William Harris, Ware, R,
367,369; Coffin r. Jenkins, 8 Story, R. 109; Hutson v. Jordan, Ware, R.
885 ; Dunlap's Adm. Fract 201, 202 ; The Boston, 1 Sumn. 328. A simi-
lar answer is required of the garnishee in a foreign attachment. Rules in
Adm. Reg. 87.
4 Rules in Admiralty, Reg. 31. And see U. States v. Packages, Gtlp. R.
806, 313 ; Dunlap's Adm. Pract 207.
5 Id. Reg. 29. And see Clerke's Praxis, Tit. 24 ; Hall's Adm. Pr. p. 52.
If the omission is through ignorance of the practice of the Court, and the de-
fendant is absent at the time of hearing, the Court is not precluded from
receiving any evidence which his counsel, as amicus Curioe, may offer. The
David Pratt, Ware, R. 495.
^
PABT Vn.] PRELIMINART OBSERVATIONS. 405
explicitly, and distinctly, to all the matters in any article in
the libel, the Court, upon exception taken thereto, may by
attachment compel him to make further answer, or may order
that the matter of exception be taken pro confesso against the
defendant, to the full purport and effect of the article thus
insufficiently answered.^ It is not, however, bound to proceed
to this extent ; but in such cases of what is termed presump-
tive confession^ it may limit the presumption to that portion
of the article to which the exception is well taken.^
§ 399. The defendant may require the personal answer of the
Hbellantj upon oath or solemn affirmation, to any interroga-
tories which he may propound at the close of his own answer,
touching any matters charged in the Ubel, or any matter of
defence set up by himself; not exposing the libellant to
criminal prosecution or punishment, nor to a penalty or for-
feiture for a penal offence. And in default of due answer,
the libel may be dismissed, or the libellant may be compelled
by attachment to answer, or the matter of the interrogatory
may be taken pro confesso in favor of the defendant, at the
discretion of the Court.^ This right of requiring the answer
of the adverse party, upon oath, to interrogatories pertinent
to the cause, is a mutual right, and may be claimed at any
stage of the cause, even down to the hearing.^
§ 400. Where the purposes of justice require it, the Court
has power to refer any matters, arising in the progress of the
suit, to one or more Commissioners^ to be appointed by the
1 Id. Reg. 80. Exceptions to any libel or answer may be taken, for sur-
plusage, irreleTancy, impertinence, or scandal ; and referred to a master,
as in Equity. Id. Reg. 116.
s Dunl. Adm. Pr. 204.
9 Rules in Admiralty, Reg. 32. Each party, on the Instance side, may
require the oath of the other. Gammell v. Skinner, 2 Gall. 45. The David
Pratt, Ware, R. 495. A person intervening pro interesse suo, has the same
privilege. Rales in Admiralty, Reg. 84, 43.
4 2 Browne, Civ. & Adm. L. p. 416.
406 LAW OP BVIDBNCE. [PABT VH.
Court to hear the parties and make report therein ; these
Commissioners having all the powers of Masters in Chan-
cery.^ *
§ 401. It may here be added, that, in the Roman Law,
causes are either plenary or summary. Plenary causes are
those in which the order and solemnity of the law are strictly
observed, in the regular contestation of the suit, a regular
term to propound^ and a solemn conclusion of the acts ; the
least omission or infringement of which nullifies the pro-
ceedings. Summary proceedings are those in which this order
and solemnity are dispensed with ; the suit is deemed con-
tested by the next contradictory act concerning the merits,
after the libel is put in ; there is no assignation to propound,
and no express conclusion. And all causes in Admiralty are
summary^ or "instantaneous ;" it being of primary importance
to the interests of commerce and navigation that justice be
done with the least possible delay .^
1 Rules in Admiraltj, Keg. 44 ; Supra, ^ 333-336.
3 2 Brown Civ. & Adm. L. 413. And see Gaines v. Travis, 8 Leg. Obs.
48; Brissonius De Verb. Significat. verb. Summatim; Pratt r. Thomas,
Ware, B. 435, 436. Hence it is, that Courts of Admiralty do not require
all the technical precision and accuracy in pleading, which is demanded in
the Courts of Common Law. It is only requisite that the cause of action
should be plainly and explicitly set forth, not in any particular formula, but
in clear and intelligible language, so that the adverse party may understand
what he is required to answer, and make up an issue upon the charge. Jenks
v. Lewis, Ware, B. 52. Courts of Admiralty, as far as their powers and
jurisdiction extend, act upon the enlarged and liberal jurisprudence of
Courts of Equity. Brown v. Lull, 2 Sumn. 443. Hence the rule applies
here, as in other Courts of Equity, that the party who asks aid, must come
with clean hands. The Boston, 1 Sumn. 328. Hence, also, it is, that a con-
demnation,against one defendant who is in contumacy, or makes no answer,
does not prevent another defendant from contesting, so &r as respects him-
self, the very fact which is thus admitted by the party in default ; The
Mary, 9 Cranch, 126, 143 ; — that an agreement in Court, in respect to the
disposition of the cause, if made under a mistake, will be set aside ; The
Hiram, 1 Wheat. 440 ; — that the Court will, in a case of fraud, or some-
PABT vn.] PRELIMINARY OBSERVATIONS. 407
thing equivalent to it, or for other strong reasons, suffer a cause to be re-
opened for the correction of a particular error, afler it has been closed; The
Fortitudo, 2 Dods. 58 ; The Monarch, 1 W. Rob. 21 ; The New England,
3 Sumn. 495, 506 ; Jacobsen's Sea Laws, p. 395, 396 ; — that it will not
lend its aid to enforce contracts essentially vicious, or tainted with fraud or
extortion ; The Cognac, 2 Hagg. 377 ; — and that it will interpret maritime
contracts with greater liberality than is found in the stricter doctrines of
the Common Law. Ellison v. The Bellona, Bee, R. 106 ; The Nelson,
6 C. Rob. 227.
408 LAW OF BVIDBNCK [PABT VH.
CHAPTER II.
OF EVIDENCE IN INSTANCE CAUSES.
1. GENEBAL BULE8.
§ 402. The rules of evidence in Admiralty and Maritime
causes, as well as in causes in Equity, are generally the same
as at Common Law, so far as regards the relevancy of evi-
dence, the proof of the substance of the issue, the burden of
proof, the requisition of the best evidence, the competency of
witnesses, and some other points ; all which have been suffi-
ciently treated in a preceding volume. A few additional
particulars only, will here be noted, which either distinguish
proceedings in Admiralty, or illustrate the application of those
rules in Admiralty Courts.
§ 403. Thus, as to the relevancy of evidence^ it is a rale in
Admiralty, that the proofs and allegations must coincide;
evidence of facts not put in contestation by the pleadings,
and allegations of facts not established by proofs, will alike
be rejected.^ The hearing is upon the pleas and proofs alone ;
secundum allegata et probata; but the appellate Court will
sometimes permit parties, in that Court, non allegata allegare^
et non probata probare^ under proper qualifications.^
I The Sarah Ann, 2 Sumn. 209 ; Fettingill v, Dinsmore, Daveis, B. 211.
9 Id. 210; The Maiianna Flora, 11 Wheat 38; The Boston, 1 Sonm.
881.
_j
PART YI.] OF EYIDBNCE IN INSTANCE GASES. 409
§ 404. So, as to the burden of proof; the general rale is
recognized, that the obligation of proving any fact ordinarily
is incumbent on him who alleges it. Thus, in cases of colli"
sioUy the Court will require preponderating evidence to fix the
loss on the party charged, before it will adjudge him to make
compensation.^ So, where, in an Instance or Revenue cause,
a primdfade case of forfeiture is made out on the part of the
prosecution, the burden of proof is thrown on the claimant^ to
explain the difficulties of the case, by the production of papers
and other evidence, which, if the ship, as he alleges, be inno-
cent, must be in his possession or under his control ; on fail-
ure of which, condemnation follows, the defect of testimony
being deemed presumptive evidence of guilt^ So, where a
forfeiture of goods is claimed, for importation in a vessel not
neutral^ the burden of proof of the vessel's neutrality is de-
volved on the claimant, he holding the affirmative, and the
facts being particularly within his own knowledge and privity ;
and this, notwithstanding the negative averment, as to the
neutral character of the property, in the libel or information.*
And generally, where the law presumes the affirmative, the
proof of the negative is thrown on the other side ; and where
any justification is set up, the burden of proof is on the party
justifying.^ In cases of appeals^ also, the burden of proof is
on the appellant, to demonstrate, beyond a reasonable doubt,
a mistake or error of law or fact in the judgment of the
1 The Ligo, 2.Hagg. 856. And see The Columbine, 2 W. Rob. 30. But
the burden of proving that a collision with a vessel at anchor arose from in-
evitable accident, lies on the party aaserting it The George, 9 Jur. 670.
See infra^ ^ 406, 407.
^ The Luminary, 8 Wheat 407, 413. The burden of proof is generally
on the claimant, where a special defence is set up. The Short Staple,
1 Gall. 104 ; Ten Hds. of Rum, Id. 188. And where the &ct is clear, and
the explanation doubtful, the Court judges by the fact The Union, 1 Hagg;
86 ; The Paul Sherman, 1 Pet C. C. R 98. Where a seizure is made,
upon probable cause, pursuant to the Revenue Act, U. S. Stat. 1799,
ch. 128, ^71, the statute expressly devolves the burden of proof on the
claimant.
8 U. States V. Hayward, 2 Gall. 485.
4 Idem, p. 498 ; Treadwell v. Joseph, 1 Sumn. 890.
VOL. in. 85
410 LAW OF EVIDENCE. [PABT VI.
Court below, or gross excess in the amount or damage
awarded.^
§ 405. And so, also, respecting the requirement of the best
emdenfie^ the t principle of the general rule is admitted in
Courts of Admiralty, although, in its application, evidence is
sometimes received as the best evidence, which Courts of
Common Law and of Equity would reject. This arises from
the peculiar nature of the subjects and circumstances which
Admiralty has to deal with, and from the impossibility of
otherwise administering justice in particular cases. It is on
this ground, that the testimony of the persons on board the
ship of the salvors, and of the wreck, and of those on board
ships coming in collision, is sometimes received, even when
objectionable at law on the score of interest, or on other
grounds ; ^ as will be shown in another place. And accord-
ingly, in a cause of collision, it was held that the protest of
the master of a foreign vessel, in tow by the vessel run foal
of, being res inter alias acta^ was not admissible in evidence,
except in a case of necessity, where other evidence could not
be obtained.^
§ 406. From the same cause, namely, the peculiar necessity
arising out of the nature of transactions on shipboard and at
sea, the rules of presumptive evidence are applied more fami-
liarly and with a larger freedom in Courts of Admiralty than in
Equity or at Common Law. This is especially the case in
revenue causes, and in cases of collision, and of collusive cap-
ture. Accordingly, where the res gestce^ in a revenue cause^ are
incapable of an explanation consistent with the innocence of
the party, condemnation follows, though there be no positive
testimony that the offence has been committed.* And when
the question arises, whether an act has been committed which
is a cause of forfeiture, an apparent intention to evade the
1 Cushman v. Ryan, 1 Stoxy, B. 91, 97.
S See infra, ^ 412, 414.
3 The Betsey Gaines, 2 Hagg. 28.
4 The Bobert Edwards, 6 Wheat 187.
PABT VI.] OF EVIDBNCB IK INSTANCE CA8BS. 411
payment of daties, though not, per se^ a cause of forfeit-
ure, will justify the Court in not putting upon the conduct of
the party an interpretation as favorable as, under the circum-
stances, it would be disposed to do.^ In cases of collisionj
also, where the evidence on both sides is conflicting and
nicely balanced, while the Court will be guided by the proba-
bilities of the respective cases which are set up, it will at the
same time presume, a priori^ that the master of a ship does
what is right, and follows the regular and correct course of
navigation.^ It will also be presumed, in maritime transac-
tions, that the usual and ordinary course of conducting business
was pursued ; as, for example, that where goods are shipped,
under the common bill of lading, they were shipped to be put
under deck.'
§ 407. In cases of collision, the rules of presumption are
deduced from nautical experience and the settled usages of
navigation. Hence, if a ship, sailing with a fair wind, runs
down another sailing upon a wind or plying to windward, it
is presumed, primd facie y to be the fault of the former; and
the burden of proof is adjusted accordingly. So, if both
ships are sailing large, or going before the wind, in the same
direction, and with ample sea-room, and one runs foul of the
other, it is presumed to be the fault of the pursuing ship.
And where one ship is at anchor, and a ship under sail runs
foul of her, the sailing ship is presumed to be in fault. This
presumption is stronger in open sea than in rivers ; but it has
force even in rivers, where due allowance ought to be made
for the current or tide bearing the ship out of her apparent
course.^ It may be added, in this connection, that it is a
well established rule, where two vessels are approaching each
* The Bobert Edwards, 6 Wheat 187.
« The Mary, 2 W. Rob. 244.
3 Yemard r. Hadson, 3 Sumn. 405.
* Van Hejihuysen, Mar. Evid. p. 20, 21 ; The Woodrop-Sims, 3 Dods.
87; The Chester, 8 Hagg. 318; The Baron Holberg, Id. 215 ; Sills v.
Brown, 9 C. & P. 601 ; The Speed, 2 W. Rob. 225 ; The Thames, 5 C. Bob.
308 ; The Girolamo, 3 Hagg. 173 ; The Batavier, 10 Jar. 19.
413 LAW or EVIDENCB. [PAKT VI.
other on opposite tacks, that the vessel on the larboard tack
must "give way," and the vessel on the starboard tack mast
keep her course ; ^ though the former may be close-hauled, and
the latter may have the wind several points free.^ K the for-
mer should endeavor to avoid the collision by passing to
windward instead of giving way, she is responsible for the
damage, if a collision should ensue.^ So, if the latter, with
the like endeavor, should bear up, instead of keeping her
course.* But though these rules are not lightly to be disre-
garded, yet no vessel, especially a steamer, should unnecessa-
rily incur the probability of a collision, by a pertinacious
adherence to them ; but where there is imminent danger of
collision, shipmasters are bound to use whatever pradential
measures the crisis may require, in order to avoid it* A
steamer is always to be treated as a vessel sailing with a fair
wind ; and is in all cases bound to give way to a vessel
moved by sails.®
§ 408. In regard to the presumption arising from the non^
production or the spoliation of papers^ aa the title to ships and
their cargoes is to be proved chiefly by documents, and these
it is generally in the power of the true owner either to pro-
duccj or satisfactorily to account for their absence ; their non-
production always leads to inferences unfavorable to the tide
> The Ann & Mary, 2 W. Rob. 189, 196 ; The Jupiter, 3 H^g. 320 ;
The Alexander Wbe, 3 W. Rob. 65 ; The Harriet, 1 W. Rob. 182; The
John Brotherick, 8 Jur. 276 ; The Leopard, Daveis, R. 193. The ezpresB-
ion, " giving way," in the Trinity House regulations, means getting oat of
the way by whatever may be the proper measures, whether it be by porting
or starboarding the helm. The Gazelle, 10 Jur. 1065 ; The Lady Anne,
15 Jur. 18 ; 1 Eng. L. & Eq. R. 670.
a The TraveUer, 2 W. Rob. 197.
3 The Mary, 2 W. Rob. 244.
4 The Jupiter, 3 Hagg. 320 ; The Carolus,Id. 343, n.
6 The Hope, 1 W. Rob. 157 ; The Vugil, 2 W. Rob. 201 ; The Itinerant,
Id. 240 ; The Blenheim, 10 Jur. 79 ; The Lady Anne, 1 Eng. & Eq. R. 670 ;
15 Jur. 18, S. C.
ft The Leopard, Daveb, R. 193, 197 ; The Shannon, 2 Hagg. 173 ; 3 Kent,
Comm. 231.
PART VI.] OF EVIDENCB IN IKSTAKCB CASES. 413
of the claimant.^ Hence the rale of omnia prcesumnntur
contra spolialorem is administered in the Courts of Admiralty
with more frequency and a more stringent application than
in any other tribunals.^ Thus, though the spoliation of pa-
pers is not, per sCj a cause of condemnation, yet if it is
attended with other circumstances of suspicion, the guilty
party will not have the aid of the Court, or be admitted to
further proof; ^ but on the other hand, if such spoliation ap-
pears, in a case otherwise favorably circumstanced for the
party, the Court, for its own satisfaction, will order further
proof at his expense.* The mere suppression or non-produc-
tion of papers, not destroyed, leads to a similar unfavorable
inference. Thus, in a cause of damage, where the master of
the aggressive ship addressed a letter to his owners and gave
it to the master of the damaged vessel, to be delivered to
them ; but the owners did not produce the letter; it was pre-
sumed that the letter contained an admission of the damage.^
And we may here add, that the production of documents, in
Admiralty, is governed by rules substantially like those in
similar cases in Equity, which have already been considered.®
2. COMPETENCY OF WITNESSES.
§ 409. In the Roman Law, evidence was distinguished into
two classes, namely, plena probation or fuU proof, and semi"
plena probation or half proof. The former consisted of admis-
sions and confessions, the testimony of witnesses, public
1 See ante,Vol. 1, ^ 37 ; Owen v. Flack, 2 Sim. & Stu. 606.
a The Hunter, 1 Dods.' 480 j The Liverpool Packet, 1 Gall. 618. And
see infrCy ^452.
3 The Rising Sun, 2 C. Rob. 104, 106 ; The Pizarro, 2 Wheat 227, 241.
The Juffrouw Anna, 1 C. Rob. 125 ; The Welvaart, Id. 122, 124; The
Eenrom, 2 C. Rob. 1, 15.
4 The Polly, 2 C. Rob. 861.
5 The Neptune, 2d, 1 Dods. 469.
« 5upra, ^295-307.
85 •
414 LAW OF EVIDinrCE. [PAKT VI.
written instraments and deeds, judicial oaths, and presmnp-
tionsjiim et dejure. The latter consisted of the testimony
of a single witness, private books of account, common fame,
and comparison of handwriting. And the conjunction of
two half proofs amounted to full proof.^ But though a single
witness ordinarily made but half proof, yet exceptions were
admitted to this rule, where, in cases of great difficulty, no
other evidence could possibly be had, and in cases of minor
importance, or where the witness was of extraordinary rank
or character ;^ and on the other hand, common fame, in some
cases, was received as equivalent to full proof.^ But this dis-
tinction of proofs is scarcely known in most of the American
Courts, and is seldom admitted in any of them as a rule of
decision ; but is recognized chiefly as the original source of
the rule by which, in certain cases, the oath of the party may
be received.**
§ 410. In regard^ to the competency of the parties as toUnesseSy
there are three cases in which their oaths are admitted at
bearings upon the merits, in Courts of Admiralty. The first
of these is where the suppletory oath is required. This oath,
as its name imports, was not admissible, by the Roman Law,
unless in aid of other testimony and to supply its deficiencies.
If nothing was proved, or if full proof was made, there was
no place for a suppletory oath. It was only where half proof
' 2 Browne, Civ* & Adm. L. p. 370, 385.
3 Idem, 885. These exceptions are thus enumerated bjMascardos: —
Quando unius testis depositio nemini nocet, et alteri prodest ; — quando easel
arduum, vel nullo modo fieri posset, ut plures possint haberi testes; — quan-
do sumus in causis possessorii, quseque nnllius propemodmn sint ponderis ; —
in causis que brevit^r et summarid absolvuntnr et dirimuntur, teste vald^
digno. Mascard. De Prob. Qusst. 11, n. 14, 17, 18, 19.
3 Mascard. De Prob. Concl. 236, n. 1, 2. Id. Cond. 396, n. 2 ; Id. ConcL
750, n. 1. Common fame, among the civilians, was distinguished from noto-
riety, which they defined as a species of proof, se oculis hominum, aut majoris
partis exhibentem, ut nulla possit tergiversatione celari aut negari, ntpote,
cujus universus populus, aut major pars ejus, testis esse possit. Mascard. De
Prob. Concl. 1107, n. 4. And see 2 Browne, Ciy. & Adm. L. p. 370.
4 See antty Vol. 1, ^ 119.
PART n] OF BVIDBNCB IX INSTANCE CASES. 4li5
was exhibited, and in the absence of any other means of
making full proof, that the party's own oath was received, as
the complement of the measure of testimony required ; and
this might be adminiiltered in all cases.^ But in the practice
of our own Admiralty Courts, though the right of resorting
to the suppletory oath in all cases of partial proof is still in-
sisted on,^ yet it is not ordinarily administered, except in sup-
port of the party's books of account, or other original charges
of the like nature, as, for example, charges made by the mas-
ter on the back of the shipping paper, of advances made to
the seamen in the course of the voyage.^
§ 411. In the second place, parties may be admitted to what
I Hall's Adm. Pract p. 98 ; Benedict's Adm. Pract. ^ 536 ; Dunl. Adm.
Pract p. 286 ; 2 Browne's Civ. & Adm. L. p. 384. The practice in such
cases is thus stated by Mr. Hall, from Oughton's Eccl. Pract tit. 186. ^J£
the plaintiff has not fully proved his allegation, but has only given- a half-
proof thereof, {semirplena probation) he may appear before the Judge and
propound as follows :
'* ' I, N., do allege that I have proved the allegations contained in my libel,
&c. I say that I have proved them fully, or at least, haif>fUlly ; I refer my-
self to the acts of Court and to the law, and therefore pray that the supple-
tory oath may be administered to me, for so the law and justice require.'
** Then the Proctor of the adverse party will say :
^' * I deny that those allegations are true. I protest of their nullity, and I
allege that the said oath ought not to be administered, referring myself to
kw.'
** Then the Judge shall assign a time to hear the parties and decree there*
on. And if he shall be satisfied, that the party who prays to have the oath
administered to them, has made more than half-proof, or at least, half-proof
of his allegation, he is bound to administer the oath to him in those cases in
which the law permits it; consult, however, with experienced practitioners,
as to what those cases are. Then the party shall make oath, * that of his own
certain knowledge the facts stated in his allegation are true.'
" If, however, the party against whom the oath is prayed, should be proved
by his adversary, to be a person of infamous or bad character, the oath is
then in no case to be administered to him." Hall's Adm. Pract ubi supra.
S Dunl. Adm. Pract p. 288 ; Benedict, Adm. Pract ^ 586.
3 Ibid. The David Pratt, Ware, B. 496, 505. And see ante^ Yd. 1,
^ 11 7 - 119, as to the admissibility of books of account
416 LAW OP EVIDENCB. [PART VI.
is termed the oath decisory. This oath was of familiar nse
in the Roman tribunals. It might be administered by the
Jadge to either party, for the more perfect satisfaction of his
own conscience in cases rendered doubtful by the weakness or
contradictions of the testimony already in the cause ; or it
might be tendered by one of the parties to the other, submit-
ting to have the cause decided by the oath of his adversary ;
which the adverse party must either accept, or tender back a
similar offer; failing to do which, he must be condemned, as
confessing the allegations against him.^ This mode of proof
^ The use of this oath is founded upon several texts of the civil law. Max-
imam remedium expediendarum litium in usum venit jurisjurandi religio ;
qua, vel ex pactione ipsorum litigatorum, vel ex auctoritate judicis, deci-
duntur controversise. Dig. lib. 12, tit 2, 1. 1. Fothier derives its authority
from the texts, — Solent enim saepe judices, in dubiis causis, exacto jureja-
rando, secundum eum judicare qui juraverit; — Dig. lib. 12, tit. 2, 1. 31 ; —
and — In bonsB fidei cdhtractibus, necnon [etiam] in csetcris causis, inopia
probationum, per judicem jurejurando causa cognita res decidi oportet Cod.
lib. 4, tit. 1, 1. S. Upon these he comments as follows : —
'* From these texts it follows, that to warrant the application of this oath,
three things must concur :
" 1. The demand or the exceptions, must not be fully proved, as appears
by the terms of L. 3. Cod. — inopia probationum. When the demand is
fully proved, the Judge condemns the defendant without having recourse to
the oath ; and on the other hand, when the exceptions are fully proved, the
defendant must be discharged from the demand.
" 2. The demand, or exceptions, although not fully proved, must not be
wholly destitute of proof ; this is the sense of the terms, in rebus dubiis, made
use of in the law 81 ; this expression is applied to cases in which the demand,
or exceptions, are neither evidently just, the proof not being full and com-
plete, nor evidently unjust, there being a sufficient commencement of proof.
In quibus, says Vinnius, Sel. Qusest 1, 44, judex dubius est, ob minus pie-
nas probationes allatas.
" 3. The Judge must have entered upon the cognizance of the cause, to de-
termine whether the oath ought to be deferred, and to which of the parties.
This results from the terms causa cognita, in L. 31.
^* This cognizance of the cause consists in the examination of the merits
of the proof, of the nature of the fact, and the qualities of the parties. When
the proof of the fact which is the subject of the demand, or the exceptions,
and upon which the decbion of the cause depends, is full and complete, the
Judge ought not to defer the oath, but to decide the cause according to tlie
proof.
PART VI.] OP BVIDENCB IN INSTANCE CASES. 417
is known to have been resorted to in some cases in the Ame-
rican Courts, so far at least as a tender of the oath by one
party, and its acceptance by the other ; ^ but the freedom with
which parties may interrogate each other, in limine^ and the in-
frequency of any occasion to advert to the distinction between
full and half proof, restricted, as we have just seen it to be.
^ Nevertheless, if the Judge, for the more perfect satisfaction of his con-
science, defers the oath to the party in whose favor the decision ought to be,
and the fact upon which it is deferred is the proper act of the party himself^
and of which he cannot be ignorant, he cannot refuse to take it, or appeal
from the sentence ; for although the Judge might, and even ought to have
decided the cause in his favor, without requiring this oath, the proof being
complete, he has still done no injuxy by requiring it, since it costs the party
nothing to affirm what is true, and his refusal weakens and destroys the proof
which he has made.
"^ When the plaintiff has no proof of his demand, or the proof which he
offers only ruses a slight presumption, the Judge ought not to defer the oath
to him, however worthy of credit he may be. Nevertheless, if the circum-
stances raise some doubt in the mind of the Judge, he may, to satisfy his con-
science, defer the uath to the defendant.
" So, when the demand being made out, the exceptions against it are only
supported by circumstances, which are too slight to warrant deferring the
oath to the defendant, the Judge may, if he thinks proper, defer the oath to
the plaintiff, before he decides in his favor.
" I would, however, advise the Judges to be rather sparing in the use of
these precautions, which occaedon many perjuries. A man of integrity does
not require the obligation of an oath, to prevent his demanding what is not
due to him, or disputing the payment of what he owes ; and a dishonest man
is not afraid of incurring the guilt of perjury. In the exercise of my pro-
fession for more than forty years, I have often seen the oath deferred ; and I
have not more than twice known a party restrained by the sanctity of the
oath, from persisting in what he had before asserted.
" It remains to observe the following difference between an oath deferred
by the Judge, and that deferred by the party ; the latter may be referred
back ; whereas, when the oath is deferred by the Judge, the party must
either take it or lose his cause ; such is the practice of the bar, which is,
without reason, charged by Faber with error ; in support of it, it is sufficient
to advert to the term refer ; for I cannot be properly said to refer the oath
to my adversary, unless he has previously deferred it to me. See Vinn. Sel.
Quasst. UZr Poth. Obi. No. 829 - 835.
1 Dnnl. Adm. Fract p. 290.
418 LAW OF BVIDENCB. [PABT VI.
to cases of book accounts and the like, have rendered the oath
decisory nearly obsolete in modern practice.
§ 412. In the third place, "paxiies are sometimes admitted as
witnesses from necessity. We have shown, in a preceding
volume,^ that in some of the Courts of Common Law, par-
ties have on this ground been held competent witnesses, while
in some others this has been doubted or denied. But how-
ever this point may be held in the Common Law tribunals,
the course of the Courts of Admiraltv, and the nature of the
causes before them, frequently require the admission of this
kind of evidence, without which there would often be a fail-
ure of justice. Thus, salvors, though parties to a suit for
salvage, are admitted ex necessitate as witnesses to all facts
which are deemed peculiarly or exclusively within their know-
ledge ; but to other facts they are incompetent ; on the gene-
ral ground that they are both parties and interested. The
exception arises from the necessity of trusting to their testi-
mony or being left without proof ; and it is admitted no far-
ther than this necessity exists/^ Parties in prize-causes are
also admitted as witnesses, on the same principle, as here-
after will be seen. And generally, where the" cause of action
is established aliunde, and the loss is proved to have been
occasioned by the fraud or tortious act of the defendant,
nothing remaining to be shown except the value of the pro-
perty lost, taken away, or destroyed, and this being incapable
of proof by any other means, it may be ascertained by the
oath df the plaintiff.^
1 Ante, Vol. 1, ^ 848.
3 The Henry Ewbank, 1 Sumn. 400, 433. And seetbe Sara Barnardinft,
2 Hagg. 151 ; The Pitt, Id. 149, n. ; The Elizabeth & Jane, Ware, R. S5 ;
The Boston, 1 Sumn. 328, 345. The testimony of parties in Admiraltj, it
is said, ought never to be taken except under a special order of Court, and
for cause shown, as in Equity. Ibid.
3 2 Browne, Civ. & Adm. L. p. 384 ; Dunl. Adm. Pract p. 287 ; Anie^
Vol. 1, ^ 343, n. The Roman law distinguished between losses by the mere
fault of the defendant, and losses occasioned by his fraud. In the- former
case, the property was estimated at its intrinsic value, by the juramenium
PART VI.] OF EVIDBKCB IK INSTANCB CASKS. 419
§ 413. The answer of the defendant^ though sworn to, and
responsive to the libel, has not the same weight in Courts of
Admiralty, as in Chancery, nor is it regarded strictly as testi-
mony, to all intents, or as full proof of any fact it may con-
tain ; and yet it is not wholly to be disregarded by the Judge,
or treated as a merely formal statement of the ground of de-
fence. When it is carefully drawn, and it appears, from
comparing it with the facts proved in the case by disinte-
rested witnesses, that the defendant has stated his case fairly,
or with no more than that bias which one naturally feels
towards his own cause, and with no more coloring than an
upright man might insensibly give to facts iq which his inte-
rest and feelings are involved, it may justly have a material
influence on the mind of the Judge, in coming to a final result.
But there is no technical rule in the Admiralty, like that in
Chancery, which binds the conscience of the Court, or deter-
mines the precise degree of credit to which the answer is in
all cases entitled, or the quantity of evidence by which it may
be overborne ; but it receives such weight as, in the particular
state of the proofs, and under all the circumstances, the
Judge may deem it to deserve.^ A claim to a vessel or cargo,
interposed in a suit for a forfeiture, though sworn to, has not
in any sense the dignity of testimony, and is not received in
evidence ; but is said to amount, at most, to " the exclusion
of a conclusion." ^ But where the libellant specially requires
the answers of the defendant, under oath, to interrogatories
distinctly propounded to him, touching the matters in issue,
which by the course of the Court he has a right to do,
these answers are treated as evidence in the cause for either
veritatiSj or oath of truth ; in the latter, bj the juramentum affectionis^ at its
peculiar value to the owner, as a matter of personal attachment Foth. Obi.
No. 836 ; 2 Browne, Civ. & Adm. L. supra. But this distinction is not recog-
nized in modem practice.
1 Hutson V. Jordan, Ware, R. 385, 887-389, 894; The Crusader, Id.
443 ; Sherwood v. Hall, 3 Sumn. 127, 131. And see The Matilda, 4 Hall,
Law Jonm. 487 ; The Thomas & Heniy, 1 Brock. 367 ; Cushman v, Ryan,
1 Story, R. 91, 103 ; Jay v. Almy, 1 Woodb. &M. 262, 267.
s The Thomas & Henry, 1 Brock. 367.
420 LAW OF EVIDENCE. [PAI^T TI.
party, as ia Chancery. But here also, as in the case of the
answer to the libel itself, no particular quantity of proof
is required to overcome the answers to the interrogatories ;
but they are weighed like other testimony.^
* § 414. In regard to persons not parties to the suU, the gene-
ral rule as to their incompetency as witnesses, when interested
in the causey is adopted in the Admiralty, as an Instaooe
Court,^ in like manner as at Common Law. But the excep-
tions to this rule, on the ground of necessity, are of much
more frequent occurrence in the Admiralty, arising from the
nature of maritime affairs. Thus, in a cause of collision, the
crew of the vessel proceeded against are held competent wit^
nessesfrom necessityj notwithstanding they may be sharers in
the profits and losses of the vessel, and do not deny their
interest in the suit.^ Sometimes parties, thus interested, are
not admitted as witnesses until they have released their in-
terest and are thereupon dismissed from the suit; ^ but the
testimony of mere releasing witnesses, it is said, ought not to
be relied on to prove a fundamental fact in a cause.^
§ 415. The case of seamen, joint libeUants for wages in a
Court of Admiralty, properly falls under this head. For
though, by the admiralty law, they all may join in the same
libel, as a matter of favor and privilege, on the general ground
of the nature of their employment, and by our statute,^ in
1 The David Pratt, Ware, R. 495 ; Jay v. Almy, 1 W. & M. 262. And
see Rules in Admiralty, Reg. 23, 27-30 ; 2 Browne, Civ. & Adm. L. 416 ;
Gierke's Praxis, tit. 14 ; Gammell v. Skinner, 2 Gall. 45 ; Supra, ^ 395, 398.
^ The Boston, 1 Sumn. 828, 843.
3 The Catherine of Dover, 2 Hagg. 145.
4 The Pitt, 2 Hagg. 149, n. And see The Celt, 3 Hagg. 823.
5 La Belle Coquette, 1 Dods. 19. An informer, who is entided to a por-
tion of a fine, forfeiture, or penalty, is ordinarily not admissible as a witneai
for the ph)secution. The statute only renders him competent when
'* he shall be necessary as a witness on the trial ; " of which necessity th^
Court must judge, alter hearing the other testimony. The Thomas & Henij,
1 Brock. 367 ; U. S. Stat 1799, ch. 128, ( 91.
6 U. S. Stat 1790, ch. 29, ^ 6.
PARTIYI.] OF EYIDENOB IN INSTANCE CASES. 421
proceedings in rem for wages they are bound so to do, the
. general privilege of admiralty law being thus converted into
a positive obligation ; yet they are not therefore regarded as
joint parties in one suit. The contract is treated as a several
and distinct contract with each seaman. Their rights, re-
spectively, are separate, and the defences that may be set up
by the owners of the ship, against the claim of one seaman,
may be wholly inapplicable to that of another. The answer,
therefore, when not equally applicable to all the crew, contains
in separate allegations what is specially appropriate to each
in particular ; and the decree pursues the same course, assign-
ing to each seaman the amount of wages to which he is en-
titled, and dismissing the libel as to those who are not entitled
to any. And no one can appeal from a decree, made in
regard to the claim of another. Their only interest, then, in
respect to the claims of each other, arises from their joint lia-
bility to costs ; and as the costs are within the discretion of
the Court, this interest is not deemed sufficient to render them
incompetent as witnesses for each other.^ At all events, it is
in the power of the Court, on motion, to discharge from the
libel, with their own consent, those whose testimony may be
required.^ But it has been held, that ordinarily one seaman
cannot be a witness for another, in a libel for wages, if the
witness and the party have a common interest in the matter
in controversy ; as, for example, where the question is as to
the loss of the ship, or an embezzlement equally affecting the
whole crew, or negligence, misfeasance, or malfeasance to
which all must contribute, or the like. But where their cases
are distinguished by special circumstances, as where, not-
withstanding their contracts are similar, the breach or perform-
ance of one may happen without affecting the other, one
seaman may be a witness for another ; although, where they
1 Oliver v. Alexander, 6 Pet 145 - 147.
s Dunl. Adm. Pract p. 239 ; SuprOf ^ 414. This, however, seems to have
been deemed objectionable. Dunl. supra ; The Betsey, 2 Bro. Penn. B.
850.
VOL. III. i^
422 LAW OP BVIDBNCB. [PART VI.
are involved in similar breaches of contract, they are to be
heard with caution.^
§ 416. Courts of Admiralty, also, like Courts' of Common
Law,^ recognize the admissibility of experts^ or men of science,
to testify their opinions upon matters in controversy, pertain-
ing to the art or science in which they are peculiarly skilled.
Thus, in a question of forfeiture for the illegal importation of
certain hogsheads of rum, it was held competent for the prose-
cution to prove the place of origin of the rum by its particular
flavor, ascertained, in the absence of other evidence, by the taste
of persons skilled in judging of the article ; the sense of tasting
being capable of acquiring, in many instances, as great a de-
gree of accuracy and precision as the eye.^ So, on questions
of seamanship, the opinions of nautical men, having before
them a clear statement of all the facts, are admissible evidence
in Courts of Admiralty, as well as those of men of science
on points of science, in other Courts.^ And accordingly, in
a case of collision, it wgs held, that a nautical person was a
competent witness to say whether, upon the plaintiffs evidence,
and admitting it to be true, he was of opinion that, by proper
1 Thompson v. The Philadelphia, 1 Pet. Adm. 210. Whether the master
ifl a competent -witness for the owner, in a libel against the ship for wages,
has been doubted. The William Harris, Ware, R 367. But see the Lidy
Ann, 1 Edw. Adm. B. 235, that he is admissible. He is not admissible to
prove any matter of defence which originated in his own acts, and for which
he IB responsible ; Ibid. ; nor is he admissible for the claimant, in a libel
against tlie ship for forfeiture, hy reason of an illegal act done under him.
Fuller V, Jackson, Bunb. 140 ; The Njmph, Ware, B. 257 ; The Hope,
2 GalL 48. Neither is he competent to prove that a sufficient medicine-
chest was on board, for the purpose of throwing the expense of medical ad-
vice on the seamen. The William Harris, supra. The proper evidence of
that fact is the testimony of a respectable physician, who has examined the
medicine-chest. Ibid.
3 See ante, Vol. 1, $ 440.
8 U. S. V. Ten Hhds. of Rum, 1 Gall. 188 ; The Bose, Id. 211.
4 The Ann & Mary, 7 Jur. 1001.
PABT YI.] OF EYIDENGE IK INSTANCE GASES. 423
care on the part of the defendant's servants, the collision
could have been avoided.^
8. DOCUMENTS.
§ 417. The general rules of evidence in Courts of Admi-
ralty, respecting- the admissibility, proof, and effect of docU'
ments, whether public or private, are the same with those
which are recognized in Courts of Common Law, and which
have already been considered.^ But in the former Courts
there are some farther exceptions, and some peculiar illustra-
tions and applications of these rules, which' will now be
mentioned.
§ 418. Documents peculiar to maritime transactions are
those which concern either the ownership and national cha-
racter of ships and vessels, and the property on board ; the
contract for seamen's wages and service ; the contract for the
conveyance of goods by sea ; and the log-book, or journal of
occurrences on board the ship, relating to her navigation and
employment, and the behavior of the seamen.
^ Fenwick v. Bell, 1 C. & K. 312. The previous decision in Sills o.
Brown, 9 C. & P. 601, contra, seems to be regarded as hasty and unsound.
The crews of large ships are distributed into classes, according to their
different capacities ; and thus the grade of one's seamanship may be ascer-
tained by the station he may have held. The classification is stated in Van
Heythuysen's Marine Evidence, p. 9, as follows : —
Boatswain's mates -j
Quarter-masters f
Gunners and Gunners' mates- • ( ^^ ''"^ ^ ^ ^-
Forecastle-men j
Foretop-men ) . ^.
-^M ' . Y Active younff seamen.
Maintop-men > •^ ®
Mizentop-men-' Young lads, and indifferent seamen.
Afler-guards-men )_. , ^
WaistL J Landanen, &c.
a Ante, YoL 1, ^ 471-498, 557-682.
424 LAW OF EVIDBNCB. [PART VI.
§ 419. By the law of the United States,^ the iitk io vessels,
whether by absolute bill of sale, mortgage, hypothecation, or
other conveyance, (except the lien by bottomry created during
the voyage,) is not valid against any person other than the
vendor, his heirs and devisees, or other persqns having actual
notice thereof, unless the instrument of conveyance is recorded
in the office of the collector of customs where the vessel is
enrolled or registered. But though the bill of sale is the pro-
per muniment of title and is essential to the complete transfer
of the ownership and of the national character of any vessel;
and in the ordinary practice in Admiralty is always required,
as the regular commercial instrument of title ;^ yet, as be-
tween the parties themselves, the title may be sustained, at
least by way of estoppel, by any evidence competent to prove
ti^e to any other personal chattel, under similar circum-
stances.^ The register is not, of itself evidence of title in
the person in whose name it stands, when oflfered in a suit
against him^ in order to establish his liability as owner ;^
though it would be otherwise, if it were shown that the
registry in his name had been procured, or adopted and sanc-
tioned by himself.^ Nor is it evidence to disprove the title of
a party claiming as owner, because his name is not found in
it ; for a legal title may exist, independent of the register.^
1 U. S. Stat. 1850, ch. 27, ^1.
» Ante, Vol. 1, ^ 261 ; 8 Kent, Comm. 180-133; Western v. Penniman,
1 Mason, 806 ; The Sisters, 5 C. Rob. 155 ; Abbott on Shipping, by Stoiy,
p. 1, 19, 60-66, and notes. In Prize Courts it is indispensable, in proof of
title. The San Jose Indiano, 2 Gall. 284.
3 Ibid. ; Bixbj v, Franklin Ins. Co. 8 Pick. 86 ; Taggard v. Loring,
16 Mass. 886 ; Yinal v. Burrill, 16 Pick. 401 ; Wendover v, Hogebooniy
7 Johns. 808.
4 Leonard v. Huntington, 15 Johns. 298.
5 Sharp V. United Ins. Co. 14 Johns. 201 ; Jones v. Pitcher, 3 Stew. &
Port 135; Tucker v, Buffinton, 16 Mass. 477; Dunl. Adm. Pract 283 ;
3 Kent, Comm. 150.
6 Ibid. And see Lord v. Ferguson, 9 N. Hamp. 380 ; Abbott on Ship-
ping, p. 60, note by Storj. The register is not necessary to the proof of
the national character of an American vessel, even in an indictment for
piracy. U. States v. Furlong, 5 Wheat. 184, 199.
PABT VI.] OF EVIDENCE IN INSTANCE CASES. 426
Whether it would be evidence in his favor j is not known to
have been directly decided ; but in one case, where a copp of
the register was rejected, because not made by a certifying
officer, no question was raised as to the admissibility of the
original, either by the learned counsel, or by the eminent
Judge who delivered the opinion of the Court.^ In collateral
issues, such as in trover, for the materials of a wrecked ship,^
the title may be proved, primd facie, by possession ; ^ and in
an indictment for a revolt, the register is sufficient evidence
of title to sustain that allegation in the indictment.^ No ves-
sel, however, can be deemed a vessel of the United StiiteSy or
entitled to the privileges of one, unless she is registered, and
the owners and master are citizens of the United States.^
But it is only by virtue of statutes that a register becomes
necessary, it being a document not required by the law of
nations as evidence of a ship's national character.^ Nor is
the register, or the bill of sale, in any case, conclusive evidence
of ownership."^
§ 420. But to this general rule that the bill of sale is indis-
pensable to a valid title, by the Admiralty law, an exception
is allowed, in cases of judicial sales by order of a Court of
Admiralty, whether for wages, or salvage, or upon a forfeiture,
or for jmyment of a loan on bottomry. Whether such sale,
ordered upon a survey and condemnation as a vessel unfit for
service, is valid, is a point not perfectly settled ; but it has
been said that Courts of Admiralty, feeling the expediency
of the power to order sales in such cases, would go far to
support the title of the purchaser ; and in this country the
^ Coolidge V. N. York Ins. Co. 14 Johns. 808 ; Abbott on Shipping, p. 68,
note by Stoiy.
3 Sutton v. Back, 2 Taant 802. And see ante, Vol. 9, ( 878.
3 Ibid.
^ U. States V. Jenkins, 8 Kent, Comm. 180, n.
s U. S. Stat Dec. 81, 1792, $ 1-5. And see Abbott on Shipping, p. 31-
88, notes bjr Stoiy ; 8 Kent, Comm. 141 - 150.
0 Ante, YoL 1, ^ 494 ; Le Cheminant v, Pearson, 4 Taunt 867.
7 Bixby V, Franklin Ins. Ca 8 Pick. 86 ; Cdson in Bonzey, 6 Grreenl.
474 ; Hozey v. Buchanan, 16 Pet 215.
86 #
«
426 LAW OP EVIDENCB. [PART VI.
power has been held to be strictly within the Admiralty juris-
diction.^ A further exception is admitted in cases of con-
demnation as prize of war. In all such cases, the title passes
to the purchaser or captor by virtue of the judicial order or
sentence and the proceedings thereon, irrespective of any bill of
sale or other documentary evidence of ownership.
§ 421. The contract for the conveyance of goods by sea
is regularly made by a charter-part^ or agreement in writing,
whereby the whole or part of a ship is leased to another, for
that purpose, on payment of freight. If the charterer hires
the entire ship for the voyage, and has the exclusive posses-
sion, command, and navigation of the vessel, he takes the
character and responsibilities of a general owner ; but if the
general owner retains the possession of a part of the ship,
with the command and navigation, and contracts to cany a
cargo on freight for the voyage, the charter-party is considered
a mere contract of affreightment, sounding in covenant, and
the freighter does not take the character or legal responsibili-
ties of ownership. But the contract, in either case, is termed
a charter-party .2 By the codes of all the maritime States of
Europe, except Great Britain and Malta, it is requisite that
this contract should be in writing ; * and the same rule is
1 The Tilton, 5 Mason, 465, 474 ; 3 Kent, Comm. 181. A party who
claims property in a vessel, derived from the sentence of condenmation by a
foreign tribunal, is bound to prove that the tribunal was lawfully constituted.
Ordinarily, foreign Courts, whose origin is unknown, will be presumed legi-
timate, until the contrary is proved ; but if th<3 Court appears to have been
constituted by a different authority from what is usual among civilized na-
tions, as, for example, by a militaiy commander, the party claiming under
its decree must show that the Court was constituted by competent authority.
Snell 9. Faussatt, 1 Wash. C. C. R. 271 ; 3 Binn. 239, n. S. C. ; Cheriot v.
Foussat, 3 Binn. 220.
9 Marcardier v. The Chesapeake Ins. Co., 8 Cranch, 39, 49; The Volun-
teer, 1 Sumn. 551, 568; Drinkwater v. The Spartan, Ware, R. 156. In
cases of doubt upon the face of the charter-party, the general owner is
deemed owner for the voyage. Certain logs of Mahogany, 2 Sumn. 589,
597.
3 SaintJoseph, Concordance entre les Codes, &c. p. 69, 70, 265, 287,
307, 333, 366, 405.
PAET VI.] OF EVIDBNCB IN INSTANCB CASES. 427
understood to prevail in Mexico, and in the States of Central
and South America, in which the Ordonanza de Bilbao is
recognized as an authority.^ But in the English law, and
that of the United States, the hiring of ships without writ-
ing is undoubtedly valid, though disapproved, as a loose and
dangerous practice.^
§ 422. The proper evidence of the shipment of the parti-
cular goods to be conveyed pursuant to the charter-party or
contract of affreightment, is the bill of lading. This docu-
ment, though not necessary to the validity of the contract by
any express English or American statute, is required by im-
memorial maritime usage ; and is made essential by the codes
of most of the maritime States of continental Europe.^ By
the commercial code of France, it is requisite that the bill of
lading should express the nature, quantity, and species or
qualities of the goods, the name of the shipper, the name
and address of the consignee, the name and domicil of the
captain, the name and tonnage of the vessel, the place of
departure and of destination, the price of the freight ; and in
the margin, the marks and numbers of the articles or pack-
ages shipped ; and it is required to be executed in four origi-
nals, one each for the shipper, the consignee, the master, and
the owner. When thus drawn up, it is legal evidence be-
tween all the parties interested in the shipment, and between
them and the insurers.^ A regulation precisely similar in
its terms is contained in the codes of Portugal, Prussia, and
Holland.^ In the other continental States the substance only
is the same. And by the general maritime law, this docu-
ment is the proper evidence of title to the goods shipped ; if
* Idem, p. 70.
9 8 Kent, Comm. 204.
8 St. Joseph, Concord, p. 70, 72, 74, 75. Such, by this author, appears
to be the law of France, Spain, Portugal, Holland, Prussia, Russia, Ham-
burg, Sweden, Wallachia, Sardinia, and the Ionian Isles.
4 Code de Commerce, art. 281, 282, 288. And see Abbott on Shipping,
p. 216, 217, and notes by Story.
^ St Joseph, Concord, p. 72, 75.
428 LAW OE EVIDBNOB. [PART VI-
it be made to order, or assigns, it is transferable in the market
as other commercial paper ; and the indorsemelit and delivery
of it transfers the property in the goods from the time of
delivery.^
§ 423. Another essential document is the shipping articles^
or contract for the service and wages of the seamen. The
statute of the United States for the government and regula-
tion of seamen in the merchants' service, requires every mas*
ter of a vessel, bound from the United States to a foreign
port, and every master of a vessel of more than fifty tons
burthen, bound from a port in one State to a port in any
other than an adjoining State, before proceeding on the voyage,
to make a written agreement with every seaman on board
his vessel, except apprentices and servants of himself or the
owners, declaring the voyage or voyages, term or terms of
time, for which such seaman shall be shipped. And at the
foot of such contract there must be a memorandum of the
day and hour on which each seaman renders himself on
board, to begin the voyage agreed on.^ Though these ship-
ping articles are signed by all the seamen, no one is under-
stood to contract jointly with or to incur responsibility for
any of the others; but the document constitutes a several
contract with each seaman, to all intents and purposes.^ It
is part of the necessary documents of the ship for the voyage,
and is primd facie evidence in respect to all persons named
therein. It is presumed to import verity, until impeached by
proof of fraud, mistake, or interpolation ; and is in no ^t
sense the private paper of the master, but is properly the
document of the owner, as well as of the other parties, to
which he must be presumed to have access, and of the con-
tents of which he cannot ordinarily be supposed to be igno-
rant^ K it contains any agreement with the seamen, contrary
1 8 Kent, C<»nm. 207 ; Abbott on Shipping, p. 889, Story's ed.
9 U. S. Stat 1790, ch. 29, ^ 1, 2.
8 Oliver v. Alexander, 6 Pet 145.
* Willard ». Dorr, 3 Maaon, 161.
PART VI.j OF BVIDBNCB IN INSTANCB CASES. 429
to the general inaHtime law, or to the policy of a statute, as,
for example, that the seaman shall pay for medical advice
and medicines, without any condition that the ship shall be
provided with a suitable medicine chest ; or, that the wages
shall cease in case of capture, or daring the restraint of the
ship ; the stipulation will not be allowed to stand, unless an
additional compensation be given to the seaman, entirely ade-
quate to the new burdens, restrictions, or risks imposed upon
him thereby, or the nature and operation of the clause be
fully and fairly explained to him.^ This document must ex*
plicitly declare the ports at which the voyage is to commence
and terminate.^ Parol evidence cannot be admitted to vary
the contract as to the amount of wages ; ^ but if the amount
is omitted by mistake or accident, and without fraud, either
party may be permitted to show, by parol testimony, what
was the amount of wages actually agreed upon between
them.* And the seaman also may show, by parol evidence,
that the voyage was falsely described to him at the time of
signing the articles;* or, that they had been fraudulently
altered by the master, since he had signed them.^ But parol
evidence is not admissible, on the part of the seaman, to
prove an ageement for any additional benefit or privilege, as
part of his wages, beyond the amount specified in the ship-
ping articles.^
I Harden v. Gordon, 2 Mason, 541 ; Brown v. Lull, 2 Sumn. 443, 450 ;
The Juliana, 2 Dods. 504 ; 3 Kent, Comm. 184. And see Mr. Curtis's valu-
able Treatise on the Rights and Duties of Merchant Seamen, p. 54 ~ 58.
9 Magee v. Moss, Gilp. 219.
3 Yeaoock v, McCall, Gilp. 805.
4 Wickham v. Blight, Gilp. 452.
5 Murray v. Kellogg, 9 Johns. 227.
< The Eliza, 1 Hagg. Adm. 182.
7 The Isabella, 2 C. Bob. 241 ; Yeacock v, McCall, Gilp. 805. The con-
trary seems, at first view, to have been held by Judge Peters, in Parker v.
The Calliope, 2 Pet Adm. R. 272 ; but it is to be observed, that in that case,
which was a libel by the cook for wages, the owner claimed an allowance for
the value of the ship's slush, which the cook had sold and appropriated to hb
own use ; and the parol evidence, admitted by the Judge, went to show that
the slush was given to the cook, as an admitted perquisite of his place ; the
430 LAW OP EVIDENCE. [PART VI.
§ 424. Though the statute above cited contains no express
declaration respecting the effect of the shipping articles as
evidence of the contract, similar to the English statute on
that subject;^ yet they have been held to be the only primary
legal evidence of the contract^ on the general principle of the
law of evidence; 2 although the charges made on them, of
advances to the seamen in the course of the voyage, are
npt sufficient evidence of such payments, until verified by
the suppletory oath of the master.^ But by a subsequent
statute, respecting the discharge of seamen in foreign ports,^
it is among other things required that the ship be furnished
with a duplicate list of the crew and a certified copy, from
the collector of the customs in the place of clearance, of the
shipping articles, and that " these documents, which shail be
deemed to contain all the conditions of contract vnth the crew
as to their service^ pay^ voyage^ and all other things^^ shall be
produced by the master, and laid before any consul or com-
mercial agent of the United States, whenever there may be
occasion for the exercise of his duties under that statute.
Such being the effect given by the statute to these certified
copies, in the cases therein provided for, it is not unreasonable
to infer that the originals were understood and intended to
have the same effect in all cases. And this inference is sup-
evidence being admitted to repel the demand of the owner, as being unjust,
and not to support an original claim against him.
^ By Stat 2 Greo. 2, c. 36, it was provided that the agreement, *< after the
signing thereof, shall be conclusive and binding to all parties/' The Isabel-
la, 2 C. Bob. 241. These words are regarded as applicable only to die
amount of wages, and the voyage to be performed, and not to articles in
which the rate of wages is not specified, nor to other stipulations of a special
nature ; the Court of Admiralty deeming itself at liberty, on collateral points,
to consider how far they are just and reasonable. The Prince Frederick,
2 Hagg. Adm. 894 ; The Harvey, Id. 79 ; The Mnerva, 1 Ilagg. Adm.
347. The English statutes relative to seamen in the merchant's service have
been revised, improved, and consolidated by Stat, 5 & 6 W. 4, c. 19.
s Bartlett v. Wyman, 14 Johns. 260 ; Johnson v. Dalton, 1 Cowen, 543,
549.
3 The David Pratt, Ware, R. 496.
* U. S. Stat 1840, ch. 93, ^ 1.
PABT YI.] OF EVIDBNCB IN INSTANCE GASES. 431
ported by another provision, in the previous statute,^ that in
any suit for wages, it shall be incumbent on the master or
commander to produce the contract and log*book, if required,
to ascertain any matters in dispute ; otherwise, the complain-
ants shall be permitted to stcUe the contents thereof, and the
proof to the contrary shall lie on the master or commander.
§ 425. In the fisheries^ also, the contract of the seamen
with the master and owner is, by statute, required to be in
writing, in all cases where the vessel is of the burthen of
twenty tons and upwards. The writing, in addition to such
terms of shipment as may be agreed on, must express whether
the agreement is to continue for one voyage or for the fishing
season, and that the fish or their proceeds, which may apper-
tain to the fishermen, shall be divided among them in pro-
portion to the fish they respectively may have caught It
must also be indorsed or countersigned by the owner of the
vessel or his agent.^ This statute was not intended to abridge
the remedy of the seamen, by the common marine law,
against all who were owners of the vessel for the voyage ;
and therefore it has been held, that where the articles are not
indorsed or countersigned by all the owners, the seaman, in a
suit for his share of the proceeds of the fish, may show, by
the license, and by parol evidence, who were the real owners
of the vessel, and, as such, responsible for the proceeds.^ In
the whale fishery^ which is held not to be a ^< foreign voyage,"
within the meaning of the statutes using that expression, no
statute has yet expressly required that the contract should be
in writing ; but the nature and usage of that trade have led
to the universal adoption of a written agreement.^
§ 426. If the shipping articles are losty the r6le (Pequipage
is competent evidence of the shipment of the seamen, and of
1 U. S. Stat. 1790,ch. 29, ^6.
9 U. S. Stat 1818, ch. 2, ^ 1.
8 Wait V. Gibbs, 4 Pick. 298.
4 Cortb on Merchant Seamen, p. 60.
432 LAW OF EVIDBNCB. [PABT VI.
the contract made in relation to wages.^ For though the
articles are held to be the only legal evidence of the contract^
in cases where by law they are required and have been exe-
cuted ; yet this does not exclude any competent secondary
evidence, where the original is not to be had. If, after the
voyage is partly performed, the seamen, at an intermediate
port, compel the master to enter into new articles at a higher
rate of wages, under threats of desertion in case of his refusal ;
the new articles are void, as being contrary to the policy of
the statute, and tending to sanction a violation of duty and
of contract; and the original articles remain in force.^ Nor
is the original contract with the seamen impaired or afiected
by the death, removal, or resignation of the master, after its
execution.^
§ 427. It may be added, that in the interpreiaiion of this
contract, as well as of all other agreements made between
seamen and ship owners or masters, Courts of Admiralty will
take into consideration the disparity of intelligence and of
position between the contracting parties, and will be vigilant
to afford protection to the seaman ; giving him the benefit of
any doubt arising upon the contract* They are said to be
the " wards of the Admiralty y^ " iru)pes conciliiy^ " placed par-
ticularly under its protection," in whose favor the law "greatly
leans;" and who are "to be treated in the same manner as
Courts of Equity are accustomed to treat young heirs, deal-
ing with their expectancies, wards with their guardians, and
cestuis que trust with their trustees." ^ Hence an acquittance
1 The Ketland v. Lebering, 2 Wash. C. C. R 201.
9 Bartlett t7. Wyman, 14 Johns. 260.
3 U. States t7. Cassidy, 2 Sumn. 582 ; U. States v. Hamilton, 1 Mason,
448 ; U. States r. Haines, 5 Mason, 272.
4 The Minerva, 1 Hagg. Adm. 355; The Hoghton, 3 Hagg. Adm. 113 ;
The Ada, Daveis, R. 407.
s Ibid. The Madonna D'Idra, 1 Dods. 89 ; The Elizabeth, 2 Dods. 407 ;
Harden v. Gordon, 2 Mason, 556 ; 8 Kent, Comm. 1 76 ; Ware; R. 369 ;
Brown v. Lull, 2 Samn. 441. In this last case, Story, J., observed, that
<< Courts of Admiralty are in the habit of watching with scrupulous jealousy
PART Vn.] OF BVIDBNCB IN INSTANCE CAUSES. 433
or a general release under seal, executed by a seaman on the
payment of bis wages, does not, in Admiralty, operate as an
estoppel, but is treated only as a common receipt, and as
primd facie evidence of what it expresses, open to any ex-
planatory or opposing proof which would be received in a
Court of Equity.^
§ 428. Another document, universally found on board mer-
chant vessels, and recognized in Courts of Admiralty, is the
Log-book, or journal of the voyage, and of transactions on
ship-board from day to day. It is kept by the master or mate,
but usually by the latter ; and is of the highest importance
in questions of prize, of average, and of seamen's wages, as
well as in other particulars.^ It is evidence in respect to
facts relating to the business of lading, unlading, and navi-
gating the ship, the course, progress, and incidents of the voy-
age, the transactions on ship-board touching those subjects,
and the employment and conduct of the crew ; but matters
evexy deviation from these principles in the articles, as injurious to the rights
of seamen, and founded in an unconscionable inequality of benefits between
the parties. Seamen are a class of persons remarkable for their rashness,
thoughtlessness, and improvidence. They are generally necessitous, igno-
rant of the nature and Extent of their own rights and privileges, and for the
most part incapable of duly appreciating their value. They combine, in a
singular manner, the apparent anomalies of gallantry, extravagance, profu-
sion in expenditure, indifference to the future, credulity, which is easily won,
and confidence, which is readily surprised. Hence it is, that bai^ains be-
tween them and ship-owners, the latter being persons of great intelligence
and shrewdness in business, are deemed open to much observation and scru-
tiny ; for they involve great inequality of knowledge, of forecast, of power,
and of condition. Courts of Admiralty on this account are accustomed to
consider seamen as peculiarly entitled to their protection ; so that they have
been, by a somewhat bold figure, often said to be &vorite8 of Courts of Ad-
miralty. In a just sense they are so, so far as the maintenance of their rights,
and the protection of their interests against the effects of the superior skill
and shrewdness of masters and owners of ships are concerned." 2 Sumn. 449.
1 The David Pratt, Ware, B. 495, 500, 501 ; Harden v. Gordon, 2 Mason,
561, 562; Thomas v. Lane, 2 Sumn. 11; Jackson o. White, 1 Pet Adm.
B.179.
9 Jacobsen's Sea Laws, p. 77, 91.
VOL, III. 87
434 LAW OP BviDiarcB. [paht ifil
totally foreign from these in their character, ought not to be
entered in the log-book ; and, though entered there, mnst be
proved by other evidence. In respect to the general esti-
mation in which it is held in Courts of Admiralty, it was
observed by Lord Stowell, that the evidence of the log-book
is to be received with jealousy, where it makes for the par-
ties, as it may have been manufactured for the purpose ; but
it is evidence of the most authentic kind against the parties,
because they cannot be supposed to have given a false repre*
sentation with a view to prejudice themselves. The wit-
nesses, when they speak to a fact, may perhaps be aware,
that it has become a point of consequence, and may qualify
their account of past events so as to give a colorable effect to
it. But the journal is written beforehand, and by persons,
perhaps, unacquainted with any intention of firaud ; and may
therefore securely be relied on wherever it speaks to the pre-
judice of its authors.^ The log-book, therefore, is pritnd fo
cie evidence of the truth of all matters properly entered therein,
in every particular so entered ; and to be falsified, it must be
disproved by satisfactory evidence.* When offered in evi-
dence, it must, of course, be accompanied by proof of its gen-
uineness and identity.^ Alterations and erasures, apparent
on its face, do not necessarily preclude its admissibility in
evidence, for any purpose, but go in a greater or less degree
to impair its value and weight as an instrument of evidence ;
and in some cases may cause it to be rejected.*
§ 429. For certain purposes, proof by the log-book is made
indispensably necessary, by the statute for the government
and regulation of seamen in the merchant's service. By this
1 The Eleanor, 1 Edw. Adm. 163. And see L'Etoile, 2 Dods. 113. It
has been said, that the log-book of the party suing can never be made evi-
dence in his favor, under any shape. The Sociedade Felii, 1 W. Rob. 311.
2 Douglass V. Eyre, Gilp. 147.
8 U. States V. Mitchell, 2 Wash. C. C. B. 478; 8 Wash, a C. B. 95;
Dunl. Adm. Pr. 268.
* Madder v. Beed, Dunl. Adm. Pr. 251.
PART VIL] OF BVIDBNCB IN INSTANCB CAUSES. 435
statute,^ it is enacted, that if any seaman shall absent himself
from the vessel without leave, and the fact shall be entered
in the log«book on the same day, and he shall return to his
duty within forty-eight hours, he shall forfeit only three day's
pay for each day of absence ; but if he shall not return within
the forty^eight hours, he shall forfeit all the wages due to
him, and all his effects on board the vessel or stored on shore
at the time, and be further liable to respond in damages to
the owner. The effect of this has been to engraft a new rule
upon the general maritime law. By that law, desertion of
the ship, during the voyage, animo non revertendi^ and with-
out sufficient cause, connected with a continued abandon*
ment, works a forfeiture of wages. Mere absence without
leave, but with an intention of returning, or without such
intent, if followed by seasonable repentance and a return to
duty, is not followed by the highly penal consequence of
such a forfeiture. But the legislature, considering that a
longer absence might endanger the safety of the ship or the
due progress of the voyage, has made forty-eight hours' ab-
sence without leave conclusive evidence of desertion, whereas,
1 U. S. Stat 1790, cfa. 29, ^ 5. The enactment is in these words : <* That
if any seaman or mariner, who shall have subscribed such contract as is
herein before described, shall absent himself from on board the ship or yes-
sel in which he shall so have shipped, without leave of the master or officer
commanding on board ; and the mate, or other officer having charge of the
log-book, shall make an entry therein of the name of such seaman or mariner,
on the day on which he shall so absent himself, and if such seaman or mari-
ner shall return to his duty within forty^ight houra, such seaman or mariner
shall forfeit three days' pay for every day which he shall so absent himself, to
he deducted out of lus wages ; but if any seaman or mariner shall absent
himself for more than forty-eight hours at one time^ he shall forfeit all the
wages due to him, and all his goods and chattels which were on board the
said ship or vessel, or in any store where they may have been lodged at the
time of his desertion, to the use of the owners of the ship or vessel, and
moreover shall be liable to pay to him or them, all damages which he or they
may sustain by being obliged to hire other seamen or mariners in his or their
place ; andlsuch damages shall be recovered with costs, in any court, or before
any justice or justices, having jurisdiction of the recovery of debts to the
value of ten dollars, or upwards." ^
436 LAW OF EVIDBNCE. [PABT YII.
upon the common principles of the maritime law, it would
be merely presumptive evidence of it The fact oiabsencej
without leavcj must, however, be entered on the log-book an
the very dap of its occurrence, as an indispensable pre-requi-
site to this statute forfeiture; and hence the log-book be-
comes the indispensable and only competent evidence of the
faot.^ It is] not sufficient merely to state^ that the seaman
was absent, or, that he left the ship ; it must also be stated
that it was without leave, with the entry of his name?
' § 430. But though the log-book is thus made indispensa-
ble to the proof of a statute forfeiture of wages, it is not in-
controvertible ; but the charge of desertion may be repelled
by proof of the falsity of the entry, or, that it was made by
mistake.^
§ 431. In order to admit the log-book in evidence, it ought
regularly to be pleaded in the answer. But this rule does not
seem to be always strictly enforced. In a suit for wages, a
log-book, brought into Court by the owners, not pleaded, bat
asserted to be in the handwriting of the mate, who was the
libellant, was permitted to be adverted to, though resisted by
the other party.* The affidavit of the master, in explanation
of the log-book, accompanied by a letter written by him re-
centi facto, has been received.* But letters written by the
1 Cloutman v. Tunison, 1 Sumn. 878, 880; The Bovena, Ware, R. 309,
312, 813; Spencer v. Eustis, 8 Shepl. 519. And see Coffin v, Jenkins, 3
Story, R. 108 ; Wood w. The Nimrod, Gilp. 88 ; Snell v. The Independence,
Id. 140; Knagg v. Goldsmith, Id. 207. By the Stat 7 and 8 Vict c. 112,
^ 7, it is incumbent on the owner or master, in such cases, to establish the
truth of the entry in the log-book, by the evidence of the mate, or other
credible witness.
2 Abbott on Shipping, p. 468, note by Story ; Curtis on Merchant Sea-
men, p. 54, 184-186 ; The Rovena, Ware, R. 309, 814.
3 Orne t?. Townsend, 4 Mason, 641 ; Malone v. The Mary, 1 Pet Adm.
R. 139 ; Jones v. The Phoenix, Id. 201 ; Thompson v. The Philadelphia, Id,
210.
4 The Malta, 2 Hagg. 158, n.
s L'Etoile, 2 Dods. 1 14.
PART Vn.] OF EVIDENCE IN INSTANCE CAUSES. 437
master to his owners immediately after a seaman had left the
ship, informing them of his desertion, are inadmissible as evi-
dence of that fact ; ^ nor will an extract from a police record
abroad be received in proof of a mariner's misconduct.^
§ 432. There are other documents, admissible in Courts of
Admiralty as evidence in maritime cases, which are required
by the laws of particular nations, or by treaties, the conside-
ration of which belongs rather to the general law of shipping
than to the law of evidence. Among these may be men-
tioned the Sea Letter^ which declares the nationality of the
ownership, and commends the vessel to the comity of nations ;
the Mediterrtmean passport^ required by treaties with the Bar-
bary powers, and intended for protection against their cruis-
ers; The Ckriijicate of Property; the Orevo-Listy Muster-
RoU, or R6le cPEquipoffej for the protection of the crew in the
course of the voyage during a war abroad ; ^ the Inventory of
the ship's tackle, furniture, &c., and of the several ship's pa-
pers relative to the voyage, for proof against captors, both of
the dismantling of the vessel, and of the destruction or sup-
pression of her documents ; and the Mcmifestj Invoices^ Certifi-
cates of Origin^ and other documentary proofs of the charac-
ter of the cargo.*
4. DEFO0ITION8.
§ 433. The testimony of witnesses in civil causes of Admi-
ralty jurisdiction, in the Courts of the United States, is ordi-
narily received vivd voce^ in summary causes, such as those
for seamen's wages, and the like ; but in those of a graver
character, especially if expected to be, carried to the Supreme
I The Jupiter, 2 Hagg. 221.
9 The Tibilia, 2 Hagg. 228, n.
3 U. S. Treasury Circular, Feb. 25, 1815.
4 See Jacobaen's Sea Laws, Book I, ch. iv, t; Book m, ch« iy ; Com-
mercial Code of Fiance, art 226 ; Amould on InsoraiBce, 623 * 625.
• 87
438 LAW OF EVIDBNCB. [PART VH.
Court, the evidence is usually taken in depositions, under a
commission. The mode of taking depositions, having been
stated with sufficient particularity in a preceding volunaei^
will not here be repeated. It should, however, be observed,
that there is a clear distinction between depositions taken
under a dedimus potestatem^ and those taken de bene esse
under the Judiciary Act of Congress.^ The provision made
in that statute for taking depositions de bene esse^ without
the formality or delay of a commission, is restricted to the
cases there enumerated, namely, when the witness resides
more than one hundred miles from the place of trial, or is
bound on a voyage to sea, or is about to go out of the United
States, or out of the District and more than the above dis-
tance from the place, and before the time of trial, or is an-
cient or very infirm. But whenever a commission issues
^< to take depositions according to common usage, when it
may be necessary to prevent a failure or delay of justice,"
whether the witness resides beyond the process of the Court
or within it, the depositions are under no circumstances to
be considered as taken de bene esse^ but are absolute.^ The
staWte provision above mentioned does not apply to cases
pending in the Supreme Court, but only to cases in the Dis-
trict and Circuit Courts. Depositions can be regularly taken
for the Supreme Court only under a commission issued ac-
cording to its own rules.* Under the statute, it has also been
held, that the circumstance that the witness was a seaman in
the naval service of the United States, and licAle to be order-
ed on a distant service, was not a sufficient cause for taking
his deposition de bene esse ; and therefore his deposition was
rejected. But it was observfsd, that in such a case, there
would seem to be a propriety in applying to the Court for
its aid.^
1 ArUe,Yo\. 1,^320-325.
« U. S. Stat 1789, ch. 20, ^30; Stat 1798, cli. 22, $6; Ante, Vol. I,
(822.
3 Sergeant v. Biddle, 4 Wheat 508.
* The Argo, 2 Wheat 287.
^ The Samuel, I Wheat 9. *
PAKT Vn.] OP EVIDENCE IN INSTANCE CAUSES. 439
§ 434. Objections to the competency of a deponent should
be made at the time of taking his deposition, when it is taken
under the statute, in order that the party may have opportu-
nity to remove them, if possible. But if the ground of objec-
tion was not previously known, either actually or by con-
structive notice, the objection may be made at the hearing.^
And when the party, against whom a deposition is taken,
expressly waives all objection to it, this general waiver must
be understood as extending to the deposition only in the cha-
racter in which it was taken, and not as imparting to it any
new or different character, as an instrument of evidence.
Thus, where a deposition is taken de bene esse^ and the ad-
verse party waives all objection to it, it is still only a deposi-
tion de bene esse^ and does not, by the waiver, become a de-
position in chief.^
§ 435. The general rules for the conduct of commissioners,
parties and counsel, in taking depositions, are substantially
the same in Admiralty as in Equity. But from the peculiar
character of the subjects of jurisdiction, and of the persons
and employments of the parties and witnesses, and upon the
constant necessity of resorting to foreign countries for proof,
Courts of Admiralty are constrained, for the promotion of
justice, to administer those rules of evidence, which are not
prescribed by statutes, with less strictness than is observed in
other tribunals. This is illustrated in its frequent resort to
letters rogatory, instead of a commission, especially where
the foreign government refuses to suffer a commission to be
executed within its jurisdiction, and deputes persons, ap-
pointed by itself, to take the depositions. In such cases,
especially, it will suffice if the testimony sought is substan-
tially obtained from the witness, as far as he is able to testify,
though all the interrogatories are not formally answered.
Indeed, it is said that wherever the business is taken out of
the hands of the Court, the ends of justice seem to require a
1 U. States V. Hair Pencils, 1 Fune, 400.
9 The Thomas & Henry, 1 Brock. S67.
440 LAW OF BVIDBNCB. [PABT VH.
departure, in some degree, from the ordinary rules of evi-
dence ; though the extent to which this departure should go
has not yet been precisely determined.^ So, where an order
of the Court has been made, pursuant to an agreement of the
parties, that the commission for taking testimony should be
closed within a limited time ; the Court, nevertheless, in its
discretion, will enlarge the time, upon the proof of newly dis-
covered and material evidence, coming to the knowledge of
the party after the execution of the commission.^
§ 436. In regard to affidavits^ it may here be observed, that
in Instance causes they are seldom of use, except in some
cases of salvage,^ and in matters relating to the progress of
the cause. But whenever they are taken, the person prepar-
ing the affidavit ought not to make out the statements of
fact in language contrary to the natural tone in which the
witness or party, if unassisted, would express himself; but
should state all the facts and circumstances as Hie affiant
would himself state them if examined in Court.^ As to their
admissibility in chief, it has been held, that the Court will
not receive, on the mere affidavit of the defendant, facts
which would be a bar to the action ; ^ nor wiU it, upon
mere voluntary affidavits, decide upon charges strongly
partaking of a criminal nature.^ Neither is an affidavit ad-
missible in explanation of depositions and supplying the defi-
ciencies therein ; it being either a contradiction or a repeti-
tion of the depositions.^ Nor will the Court receive the
affidavit of a party in explanation and justification of his
1 Nelson v. U. States, 1 Pet C. C. R 237.
9 The Ruby, 6 Mason, 451.
3 In the High Court of Admiralty in England, when cases of salrage are
brought upon affidavits, the practice, it seems, is for the salvors examined,
first to release their interest Dunl. Adm. Pr. 265, cites The Conn teas of
Dover, 2 Hagg. 149, 162, n. See supra, ^ 412.
4 The Towan, 8 Jur. 222.
5 The Lord Hobart, 2 Dods. 101.
6 The Apollo, 1 Hagg. 315.
7 The Georgiana, 1 Dods. 399.
PABT Vn.] OF EVIDBNOB IN INSTANCE CAUSES. 441
conduct in certain proceedings which had appeared in evi-
dence in the cause, and had been animadverted upon by the
opposing counsel.^ The general nature of affidavits, their
essential requisites, and their weight and effect, are regarded
in all the Courts in a manner substantially the same ; and
these having been already fully explained, under the head of
evidence in Chancery ,2 no further consideration of the subject
is here deemed necessary.
I Wood V. Goodlake, 2 Curt. 97.
8 See supra, ^ 879 - 385.
1
442 LAW OP EVIDENCE, [PABT YU.
CHAPTER III.
OF PLEADINGS AND PRACTICE IN PRIZE CAUSES.
§ 437. We have already seen^ that, the District Courts of
the United States, are clothed with all the powers of Prize
Courts, as recognized in the Law of Nations. The mode in
which these powers are exercised, so far as it is peculiar to
prize causes, will now briefly be considered.
§ 438. Upon the capture of a vessel as prize of war, it is
the duty of the captor carefully to preserve all the papers and
writings found on board the prize^ and to transmit the whole
of the originals, unmutilated, to the Judge of the District to
which the prize is ordered to proceed ; without taking from
the prize any of the money or other property found on board,
unless for its better preservation, or unless it is absolutely
necessary for the use of vessels of the United States.^ The
delivery of the papers is accompanied by an afSdavit that
they are delivered up in the same condition in which they
were taken, without fraud, addition, subduction, or embezzle-
ment. And the master and one or more of the principal per-
sons belonging to the captured vessel are also to be brought
1 Supray ^ 387.
9 Stat 1800, ch. 33, ^ 1 ; Articles for the government of the Navy, art 7,
8 ; W^eat. on Captures, p. 280. The Practice in Prize Causes irably though
somewhat succinctly treated in the Appendix to 1 Wheaton's Reports, Note
n, and 2 Wheaton's Reports, Note I, usually attributed to Mr. Justice Story.
PABT yn.] OF PLEADINGS AND PRACTICE IN PBIZE CAUSES. 443
in for examination.^ It is an ancient and fundamental rule
of prize proceedings, "(hat the master, at least, of the captured
ship should be brought in, and examined upon the standing
interrogatories, as well as that the ship's papers should ac-
company the property brought before the Court The omis-
sion to do this must be accounted for in a very satisfactory
manner, or the Court will withhold its sentence, even in very
clear cases.^ The duty of an immediate delivery of the papers
is equally stringent, and every deviation from it is watched
with uncommon jealousy. They, cannot, in any case, be re-
turned to the captors ; but the custody of them belongs to
the Court alone.^ Nor are the captors permitted to decide
upon the materiality of the papers to be preserved and
brought in ; but it is their duty to produce all which are
found ; the determination of their value and relevancy is for
the Court, at the hearing.^
§ 439. It is the practice of Courts of Admiralty and Prize,
in time of war, to appoint Commissioners of Prize^ to take
the examinations, in preparatorioj of the master and persons
on board the captured ship, and to perform such other duties
respecting the captured property as may be specially assigned
to them under the rules and orders of the Court These offi-
cers are duly commissioned and sworn. They are ordinarily
charged with the custody of the prize, in the first instance,
and until further proceedings are had.^
§ 440. It is the duty of the captors forthwith to proceed to
the adjudication of the property captured, by filing a libel
and obtaining a monition to all persons claiming an interest
^ Wheat, on Captures, p. 280 ; 1 Wheat 495, 496.
9 The Arabella, 2 Gall. 370 ; The Flying Fish, Id. 374 ; The Speculation,
2 C. Rob. 298 ; The Anna, 5 C. Bob. 378, [332], 385, [847], n. ; The Dame
Catharine, Hay & Mar. 244.
3 The Diana, 2 GalL 93, 95.
4 The London Packet, 2 Gall. 20.
s Wheat on Captures, App. p. 312, 369.
444 LAW OF EVIDENCE. [PABT VH.
in the property, to appear at a day assigned, and show cause
why a decree of condemnation should not be passed. If
they omit or unreasonably delay thus to proceed, any person,
claiming an interest in the prize, may obtain a monition
against them, requiring them to proceed to adjudication;
which if they fail to do, or fail to show sufficient cause for
condemnation of the property, it will be restored to the claim-
ants, on proof of their interest therein.^
§ 441. When the capture is made by a national ship, the
lihel is filed by the District Attorney, in behalf of the United
States and of the officers and creW of the capturing ship. It
briefly alleges, in distinct articles, first, the existence of the
war ; secondly, the name and rank of the commanding officer
of the capturing ship, and of the ship then under his com-
mand ; thirdly, the time and fact of the capture, as having
been made on the high seas, with the name and general de-
scription of the vessel or property captured ; fourthly, the
national character of the prize, showing it to be enemies' pro-
perty ; fifthly, that the prize is brought into a certain port in
the District and within the jurisdiction of the Court ; sixthly,
that by reason of the premises, the property has become for-
feited to the United States and the captors, and ought to be
condemned to their use ; and lastly, praying process, and mo-
nition, and a decree of condemnation of the property, as law-
ful prize of war.^ When the capture is made by a privateer,
or by private individuals, the captors employ their own proc-
tor, and the libel is filed by the commander -of the privateer,
in behalf of himself and crew, or by one or more of the indi-
vidual captors, in behalf of all.
§ 442. If a claim to the property is interposed, it should be
made by the owner himself, if within the jurisdiction, and
not by his agent ; the captors being entitled, in that case, to
I Wheat on Captures, p. 280.
9 See the precedent in Wheat, on Captures, App. No. YII. The Fortonat
1 Dods. 81.
J
1
PART Vn.] OF PLEADINGS AND PRACTIOE IN PBIZE CAUSES. 445
the answer of each claimant, severally, upon his oath.^ It
must be accompanied by a test affidavit, stating that the pro-
perty, both at the time of its shipment and at the time of
capture, did belong, and, if restored, will belong to the claim-
ant ; but an irregularity in this respect, in a case otherwise
fair and free from suspicion, will not be deemed fatal.^ In
general, the claimant must make his claim and affida-
vit, without being assisted by the papers in shaping them ;
and if they be found substantially to agree with the doc-
uments, he will afterwards be permitted to correct any
formal errors from the documents themselves. But in spe-
cial cases, where a proper ground is laid by affidavits, an
order will be made for an examination of such papers as are
necessary to the party to make a proper specification of his
own claim, but not for a general examination of all the ship's
papers.^ It is also a general rule, that no claim shall be ad-
mitted in opposition to the depositions and the ship's papers.
But the rule is not inflexible ; it admits of exceptions, stand-
ing upon very particular grounds, in cases occurring in times
of peace or at the very commencement of war, and granted
as a special indulgence. But in times of known war, the
rule is never relaxed.* Neither will a claim be admitted,
where the transaction, on the part of the claimant, was in
violation of the laws of his own country, or is forbidden by
the law of nature.^
§ 443. Where no claim is interposed, if the property ap-
pears to belong to enemies, it is immediately condemned.
If its national character appears doubtful, or even neutral, the
Court will not proceed to a final decree, but will postpone
^ The Lively, 1 Gall. 815, 337 ; The Sally, Id. 401 ; The Adeline, 9 Cranch,
286.
3 The Adeline, 9 Cranch, 244, 286.
3 The San Jose Indiano, 2 Gall. 269 ; The Port Mary, 8 C. Rob. 233.
4 The Diana, 2 Gall. 93, 96, 97; The Yrow Anna Catharina, 5 C. Bob.
15, 19, [20, 24,] ; La Flora, 6 C. Rob. 1.
9 The Walsingham Packet, 2 W. Rob. 77, 83. And see 1 Wheat. App.
Note II, p. 501, and cases there cited.
VOL. III. 38
446 LAW OF BVIDENCB. [PABT VH.
farther proceedings, with a view to enable any person, having
title, to assert it within a reasonable time ; and this, by the
general usage of nations, has been limited to a year and a
day^ that is, to a full year, after the institution of the prize
proceedings. If no claim is interposed within that period,
the property is deemed to be abandoned, and is condemned
to the captor for contumacy and default of the supposed
owner.^ In fine, the end of a Prize Court, as was said by
Lord Mansfield, is, to suspend the property until condemna-
tion ; to punish every sort of misbehavior in the captors ; to
restore instantly, veUs levatiSj if, upon the most summary ex-
amination there does not appear sufficient ground to con-
demn ; but if the goods really are prize, to condemn finaUy,
against every body, giving every body an opportunity of be-
ing heard. A captor may, and must, force every person
interested to defend ; and every person interested may force
him to proceed to condemnation, without delay.^
1 The Harrison, 1 Wheat 298 ; The Staat Embden, 1 C. Bob. 26, 29.
9 Lindo V. Bodnej, 2 Doug. 614, n.
PABT VH.] OF EVIDENCE IS PBIZE CAUSES. 447
CHAPTER IV.
OF EVIDENCE IN PRIZE CAUSES.
1. IX PREFABATORIO.
§ 444. The prize being brought in, and all the papers foand
on board being delivered into Court, and notice thereof being
given by the captors to the Judge, or to the Commissioners
of Prize, the next thing forthwith to be done, is to take the
examinations of the captured master and crew, upon the
standing interrogatories. This is seldom done by the Judge,
in person, but is usually performed by the commissioners, by
his order. The standing interrogatories are prepared under
the direction of the Judge, and contain sifting inquiries upon
all points which may affect the question of prize ; of which
those used in the High Court of Admiralty in England are
understood to furnish the most approved model, and are sim-
ilar to those adopted in the practice in prize causes in the
United States.^
§ 445. This preparatory examination is confined to the per-
sons on board the prize at the time of capture, unless the
special permission of the Court is obtained for the examina-
1 1 Wheat 495. The English interrogatories are printed at large in 1 C
Bob. 381 - 389. Those used in the United States may be found in 2 Wheat.
App. p. 81-87.
448 LAW OF BVIDBNCB. [PART VH.
tion of others.^ And in order to guard as far as possible
against frauds and misstatements from after contrivances,
the examinations should take place as soon as possible after
the arrival of the vessel, and without permitting the witnesses
to have intercourse with counsel. The captors, also, should
introduce all the witnesses in immediate succession, and be-
fore any of the depositions are closed and transmitted to the
Judge ; for after the depositions are taken and transmitted,
the commissioners are not at liberty, without a special order,
to examine other witnesses, subsequently adduced by the
captors.^ The same rule is, with equal strictness, applied to
the conduct of the claimants. Thus, when a person, calling
himself the supercargo of the prize, produced himself before
the commissioners, two days after the vessel came into port,
and offered papers in his possession, they refused to examine
him, because the testimony was not offered immediately ; and
the Judge confirmed their decision.^ The ship's papers and
other documents found on board and not delivered to the
Judge or the commissioners, previous to the examinations,
will not be received in evidence.*
§ 446. In regard to the manner of the examination^ though
it is upon standing interrogatories, and the witnesses are not
allowed the assistance of counsel, yet they are produced in
the presence of the parties or their agents, before the com-
missioners, whose duty it is to superintend the regularity of
the proceeding, and to protect the witnesses from surprise, or
misrepresentation. When the deposition is taken, each sheet
is afterwards read over to the witness, and separately signed
by him, and then becomes evidence common to both parties.^
1 1 Wheat. 496 ; The Eliza & Katy, 1 C. Rob, 189, 190 ; The Henrick
& Maria, 4 C. Rob. 57; The Haabet, 6 C. Rob. 54, 55; The Fortune, 1
Dodfl. 81.
9 The Speculation, 2 C. Rob. 293 ; 1 Wheat 496, 497.
3 The Anna, 1 C. Rob. 331.
4 Ibid. 1 Wheat. 497, 498 ; The Ann Green, 1 Gall. 281.
5 The Apollo, 5 C. Rob. [286,] 256, 257.
PART Vn.] OP BVIDEKCE IN PMZB CAUSES. 449
It is the duty of the commissioDers, not merely to require a
formal direct answer to every part of an interrogatory, but to
require the witness to state the facts with such minuteness
of detail as to meet the stress of every question, and not to
evade a sifting inquiry by vague and obscure statements.-^
To prevent fraudulent concert between the witnesses, they
are examined apart from each oth^. And if a witness re-
fuses to answer at all, or to answer fully, the commissioners
are to certify the fact to the Court ; in which case the wit-
ness will be liable to be punished for the contempt, and the
claimants will incur th^ penal consequences to the ship and
cargo, resulting from a suppression of evidence. As soon as
the examinations are completed, they are to be sealed up,
directed to the Judge of the District, and transmitted to the
clerk's office, together with all the ship's papers which have
not ahready been lodged there by the captors.^
t
§ 447. It is upon this preparatory teitimonff^ consisting of
the ship's papers, the documents on board, and the deposi-
tions thus taken, that the cause tf, in the first insta/ncej to be
heard and tried? And in weighing this evidence, the master
and crew of the captured ship are ordinarily regarded as hav-
ing no interest in the condemnation of the vessel, but on the
contrary as being concerned to defend their employment, and
as having a natural prepossession in favor of their employers ;
and therefore as being most favorably inclined to the side of
the claimant. If there is a repugnance between the deposi-
tions and the documents, it does not necessarily follow that
the conviction of the Court must be kept in eqvilibrio^ until
it can receive 'further proof; for though such is the general
rule in Courts of Admiralty, yet it is a rule by no means in-
flexible ; but it is liable to many exceptions, sometimes in
1 The Ann Green, 1 GalL 273, 284.
9 1 Wheat 498.
3 The Vigilantia, 1 C. Bob. 1, 4; The Ann Green, 1 GalL 281, 282. 1
Wheat. 498 ; The Liverpool Packet, 1 Gall. 516 ; 2 Browne, Civ. and Adm.
Law, p. 451.
38*
450 LAW OF BVIDBNCB. [PART VH.
favor of depositions, and sometimes, though more rarely, on
the side of the documentary evidence ; the preponderance
being determined by the Court, upon a consideration of all
the circumstances of the case.^ It is, however, to be observed,
that the captured property itself, being before the Court, con-
stitutes a part, and often an essential part, of the original evi-
dence upon which the cause is in the first instance to be
tried ; affording, in many cases, a certainty which no papers
can give. Whenever, therefore, a proper foundation is laid,
the Court will direct a survey, in order to ascertain the natare
and character of the property in question, or will otherwise
satisfy itself on the point, by proof.^
§ 448. But this rule of the law of prize, that the evidence
to acquit or condemn must, in the first instance, come from
the papers and crew of the captured vessel, also admits of
some relaxation ; by allowing the captors, under peculiar cir-
cumstances, to adduce extrinsic testimony. Thus, deposi-
tions and documents may sometimes be invoked from ano-
ther catirsey and papers found on board other shipSj may some-
times be admitted, and in some other cases of reasonable
doubt or pregnant suspicion, the captors will not be excluded
from the benefit of diligent inquiries. But no papers ought
to be admitted as coming from the ship^ which are not pro-
duced at the first examination.^ Thus, where a ship had
1 The Vigilantia, supra,
8 The Liverpool Packet, 1 Gall. 513, 520. And see the Carl Walter, 4
C.Bob. 207, 213; The Richmond, 5 C.Bob. [325,] 290; 294; TheJonge
Margaretha, 1 C. Bob. 189, 191.
3 The Ann Green, 1 Gall. 274, 282; 1 Wheat 499; The Apollo, 5 C.
Bob. 256 ; The Vriendschap, 4 C. Bob. 166 ; The Nied Elwin, 1 Dods. 54.
But see The Borneo, 6 C. Bob. 351. It seems that papers can not be invo-
cated, except when the cause is either between the same parties, or on the
same point Applications for the invocation of proceedings from another
cause have been rejected. See Dearie v. Southwell, 2 Lee, 93. In another
case, the rule was stated to be, that original evidence, and depositions taken
on the standing interrogatories, may be invoked from one prize cause into
another ; but depositions taken as farther proof in one cause, cannot be used
in another. The Experiment, 4 Wheat 84.
PABT YII.] OF EVIBENGE IN PRIZE CAUSES. 451
been stopped and searched, and a letter had been taken
out by the cruising vessel, and the ship being afterwards cap-
tured and libelled as prize, it was prayed by the captors that
this letter might be introduced on further proof, the Court
refused to admit it ; the learned Judge observing, that it was
by no means the disposition of the Court to encourage appli-
cations of this kind ; that it had seldom been done, except in
cases where something appeared in the original evidence to
lead to farther inquiry ; and not where the matter was for-
eign and not connected with the original evidence in the
the cause, but tended to lead the practice of the Court from
the simplicity of prize proceedings, and to introduce an end-
less accumulation of proof.^
§ 449. In cases of joint or collusive capture^ also, the simplicity
of prize proceedings is necessarily departed from ; and where,
in these cases, circumstances of doubtful appearance occur,
the Court will permit the parties to adduce other evidence
than that which is furnished from the captured vessel, or is
invoked from other prize causes.^
1 The Sarah, 8 C. Rob. 880; cited and approyed in The Liverpool
Packet, 1 Gall. 516. But see The Romeo, 6 C. Rob. 851. Infra, ^ 468.
s The George, 1 Wheat 408. The reasons for this relaxation of the rule
were thus explained by Blarshall, C. J.: — "It is certainly a general rule
in prize causes that the decision should be prompt ; and should be made,
unless some good reason for departing from it exists, on the papers and testi-
mony afforded by the captured vessel, or which can be invoked from the
papers of other vessels in possession of the court This rule ought to be
held sacred in that whole description of causes to which the reasons on which
it is founded are applicable. The usual controversy in prize causes is be-
tween the captors and captured. If the captured vessel be plainly an
enemy, immediate condemnation is certain and proper. But the vessel and
cai^ may be neutral, and may be captured on suspicion. This is a grievous
vexation to the neutral, which ought not to be increased by prolonging his
detention, in the hope that something may be discovered from some other
source, which maj justify condemnation. If his papers are all clear, and
if the examinations in preparcUario all show his neutrality, he is, and ought
to be, immediately dischai^ed. In a fair transaction this will often be the
case. If any thing suspicious appears in the papers, which involves the
neutrality of the claimant in doubt, he must blame himself for the circum-
452 LAW OF EYIDSNCB. [PABT TIL
§ 450. In regard to the time urithin which the prepareUary
examinaium must be completed^ no particnlar period seems to
be definitively fixed by the general Admiralty law ; it being
stance, and cannot complain of the delay wbich is neoeaaaiy far iJie remoTal
of those donbts. The whole proceedings are calculated for tike trial of the
question of prize or no prize, and the standing interrogatories on which the
preparatory examinations are taken are framed for the purpose of elicitiag
the truth on that question. They are intended for the controveisy between
the captors and the captured ; intended to' draw forth everything within die
knowledge of the crew of the prize, but cannot be intended to procure testi-
mony respecting facts not within their knowledge. When the question of
prize or no prize is decided in the affirmatiTe, the strong motiTes for an im-
mediate sentence lose somewhat of their force, and the point to which the
testimony in preparatorio is taken, is no longer the question in oontroversy.
If another question arises, for instance, as to the proportions in which the
owners and crew of the capturing vessel are entitled, the testimony which
will decide this question must be searched for, not among the papers oi the
prize vessel, or the depositions of her crew, but elsewhere, and liberty must,
therefore, be given to adduce this testimony. The case of a jcnnt capture
has been mentioned, and we think, correctly, as an analogous case. Where
several cruisers claim a share of the prize, extrinsic testimony b admitted to
establish their rights. They are not, and ought not to be, confined to the
testimony which may be extracted from the crew. And yet the standing
interrogatories are, in some degree, adapted to this case. Each indiridual
of the crew is always asked whether, at the time of capture, any other vessd
was in sight Notwithstanding this, the ckdmants to a joint interest in die
prize, are always permitted to adduce testimony drawn from other sources to
establish their claim. The case before the court is one of much greater
strength. The captors are charged with direct and positive fiaud, whidi is
to strip them of rights claimed under their commissionB. Even* if exculpa-
tory testimony could be expected from the prize crew, the interrogatxwies
are not calculated to draw it from them. Of course, it will rarely happen
that testimony taken for the sole purpose of deciding the question whether
the captured vessel ought to be condemned or restored, should furnish suffi*
cient lights for determining whether the capture has been bondjide or collu-
sive. If circumstances of doubtM appearance occur, justice requires that an
opportunity to explain those circumstances should be given ; and that fiaud
' should never be fixed on an individual until he has been allowed to clear
himself from the ixhputation, if in his power.
"-Under these impressions, the case must be a strong one, indeed, the
collusiveness of the capture must be almost confessed, before the court could
think a refusal to allow other proof than is furnished by the captured yessel
justifiable.'' 1 Wheat. 409-411.
PART YII.] OF EVIBENCB IN PRIZE CAUSES. 453
only required that in this, as in all other prize proceedings,
the utmost despatch be observed. But by the English law,
the Judge or commissioners are to finish the examination
within five days after request made for that purpose.^ This
period has been mentioned by some writers, as the general
rule ; ^ and it certainly is in accordance with the principle just
mentioned.
2. DOCUME17T8.
§ 451. As to the admissibilUy of documents in prize causes,
those found on board the prize are of course'admitted, from
that circumstance alone, whatever may be their character ;
they being part of the mainourj so to speak, with which the
prize was taken. The admissibility of other documents is
determined by the general rules of evidence heretofore con-
sidered. And the same distinction is to be observed, respect-
ing the proof of documents ; those found on board the cap-
tured vessel being admitted, /?rfwKi/aac, without other proof
of their genuineness than the fact of their having been there
found, and the verification of them by the master of the ship ;^
while the proof of other papers is governed by the other rules
above referred to.
§ 452. It is of course expected that every ship has on board
the proper and usual documents^ showing her national charac-
ter and ownership^ and the innocent nature of her employment;
and that these are carefully preserved, and readily submitted
to the inspection of the captors. These documents have
been described, in considering the documentary evidence in
Instance causes.* But the proof of title, for obvious reasons,
is required with more strictness in prize proceedings than in
others ; and hence the legal title of the ship can be asserted
1 2 C. Bob. 295, note (a.)
9 2 Browne, Civ. and Adm. L. p. 446 ; Jacobsen'B Sea Laws, p. 405.
3 The Juno, 2 C. Bob. 122.
< Supra, ^417-482.
454 LAW OP BVIDBNCE. [PABT VII-
in the Prize Court, only as to those persons to whom it is
conveyed by the bill of sale^ irrespective of any eqnitable in-
terests claimed by others ; the Court looking singly to tfae
bill of sale, the document, irecognized by the law of nations,
and decisive of the ownership. If, by this document, the ves-
sel stands as enemy's property, it is condemned as such ; leav-
ing equitable interests, if any exist, to other jurisdictions.^
And so important is the production of this document deem-
ed, that its absence alone, according to the constant habits of
the Admiralty Court, founds a demand on the party for far-
ther proof.2
§ 453. The grand circumstances which, as Dr. Browne ob-
serves,^ if proved, go strongly to condemn the ship, or at least
to excite strong suspicion, relate chiefly to this documentary
evidence. Among these are said to be — the tcant of complete
and proper papers ; the carrying of false or colorable papers ;
the throunng overboard of papers ; prevarication of the master
and officers in their testimony in preparatorio ; spoliation of
papers ; the inability of the master to give an account of the
ownership ; the master's own domicile and national character;
his conducty and that of the vessel ; the time when the papers
were drawn and executed, and whether before or after the
existence of the war. It has already been seen,* that the pre-
sumption from the spoliation of papers arises more readily in
the Admiralty Courts than in other tribunals, and is admi-
nistered with greater stringency and freedom ; but in prize
causes this stringency is exhibited with more vigilance and
force than in those on the Instance side of the Court Neutral
masters are held to be not at liberty to destroy papers ; and if
they do so, the explanation that they were mere private letters
will not be received.^ The act alone is ground of condemna-
1 The San Jose Indiano, 2 Gall. 284. And see The Sisters, 5 C. Rob.
[165,] 138 ; The Vigilantia, 1 C. Rob. 1.
a The Welvaart, 1 C. Rob. 122.
3 2 Browne, CIt. and Adm. L. p. 451.
4 Supra, § 408.
5 The Two Brothers, 1 C. Rob. IdS.
PART Vn.] OP BVIDBNCB IN PRIZE CAUSES. 455
tion, by the law of nations ; and this rule is said to be ad-
ministered in the French and other continental Courts, to the
extent of the principle; but in the British Prize Court the
rule is modified to this extent, that if all other circumstances
are clear, this alone shall not be damnatory, if satisfactorily
accounted for ; as, for example, if it were done by a person
with intent to promote private interests of his own.^ A simi-
lar modification of the rule, in principle, is admitted in the
United States.^
3. COMPETENCY OF PROOF.
§ 454. It has already been stated, in regard to witnesses in
the Instance Court,^ that the objection to their competency,
on the score of interest, was gencraUy held valid, as it is at
Common Law. But in the Prize Court, from the nature of
the subjects in judgment, it is obvious that this rule must
necessarily be subject to many and large exceptions. The
practice in the High Court of Admiralty in England, prior to
the recent statute on this subject, seems not to have been per-
fectly uniform, though apparently inclining against allowing
the objection of interest to prevail, upon the question of cap-
ture.^ But in the United States it has been clearly held, that
the common-law doctrine as to competency is not applicable
to prize proceedings ; and that in Prize Courts, no person is
incompetent as a witness merely on the ground of interest ;
but the testimony of every witness is admissible, subject to
all exceptions as to its credibility ; and accordingly, upon an
order for farther proof, where the benefit of it is allowed to
1 The Hendrick & Alida, Hay & Mar. 106 ; The fiunter, 1 Dods. 480.
And see the Maria Magdalena, Hay & Mar. 247 ; The Rising Sun, 3 C. Rob.
104.
8 The Pizarro, 2 Wheat 227.
3 Supra, ^414.
.4 The Maria, 1 C. Rob. 340, 853; The Drie Gebroeders, 5 C. Rob. 307,
note (a) ; The Galen, 2 Dods. 21 ; The Catharine oi Dover, 2 Hagg. 145.
456 LAW OF EVIDENCE. [PABT VIL
the captors, their attestations have been held clearly admis-
sible.^
§ 455. It is, however, contrary to the practice of the Prize
Court, to send a commission to take evidence in an enemy's
country ; 2 not that an alien enemy is in all cases and uni-
versally disabled as a witness ; but that the cases of excH^ption
are few. Thus, an American resident in France during a
war between France and Great Britain, and therefore subject,
in England, to all the disabilities of a French merchant as to
the power of becoming a claimant in a prize proceeding, was
nevertheless deemed not incompetent as a witness, on that
account.^
§ 456. The official declarations of a foreign State, are also,
to a certain extent, admissible in evidence. Thus, in the
case of a demand for salvage on an American Yessel, recap-
tured from a Spanish cruiser, which had taken her as prize on
the ground that she was bound to Malta, then a belligerent
port, with a cargo of provisions and naval stores ; -a document
under the seal and sign manual of the President of the Uni-
ted States, declaring that the cargo was the property of the
United States, and destined for the supply of its squadron in
the Mediter):anean, was held admissible in proof of that fact.
The learned Judge on that occasion observed, that great re-
spect is due to the declaration of the government of a State ;
not to the extent, which has sometimes been contended for,
that the convoy of a vessel of the State, or public certificates
that the goods on board are the property of its subjects, should
at once be received as sufficient to establish that fact, and to
supersede all farther inquiry ; because it is very possible for
rgovernments to be imposed on with regard to facts of that
nature, which they can take only on the representation of
interested individuals. But when there is an averment like
this, relative to their own immediate actSy it would be a breach
1 The Anne, S Wheat 485, 444. And see The Grotias, 9 Cranch^ S6&
9 The Magnus, 1 C. Rob. 35 ; The Diana, 2 Gall. 97.
3 The Falcon, 6 C. Rob. 197.
PART Vn.] OF EVIDENCE IN PRIZE CAUSES. 457
of the comity and respect due to the declarations of an inde-
pendent State, to doubt the truth of an assertion which could
not have been made but upon a thorough knowledge and
conviction of the fact.^
4. MODE OF TAKING TESTIMONY.
•
§ 457. We have seen that the preparatory examinations, in
prize causes, are ordinarily taken before the commissioners
of prize, upon the standing interrogatories, and sometimes,
though rarely, before the Judge. Other testimony is taken in
the mode usual in other cases of Admiralty and Maritime
jurisdiction, which has been sufficiently stated. But in the
Supreme Court of the United States, in all cases of Admi-
ralty and Maritime jurisdiction where new evidence may be
admissible, the testimony of witnesses must be taken under
a commission, issued from that Court, or from any Circuit
Court under the direction of a Judge thereof, upon interroga-
tories and cross interrogatories duly filed ; but the rule does
not prevent any party from giving oral testimony in open
Court, in cases where by law it is admissible.^ No other
seal is necessary to be affixed by the commissioners to their
return, than the seal to the envelope.^
5. PRESUMPTIONS.
§ 458. In Prize Courts there are certain presumptions which
legally affect the patties, and are considered of general appli-
cation, and which therefore deserve particular notice in this
place. These relate chiefly to the ownership of the property,
^ The Huntress, 6 C. Bob. 110.
3 Rules of the Supreme Court, Beg. 27 ; The London Packet, 2 Wheat.
371.
3 Grant r. Naylor, 4 Craneh, 228 ; Dunl. Admi Fract. 265.
VOL. III. 39
458 LAW OP EVIDKNCR [PABT VII.
the national character of the ship, and the domicile and
nationality of the master and claimants.
■ •
§ 459. In regard to the title and ownership^ possession is
presumptive evidence of property, and therefore justifies the
capture of ships and cargoes found in the enemy's possession,
though it may not always furnish sufficient ground for con-
demnation.^ If, upon farther proof allowed to the claimant,
there is still a defect of evidence to show the neutral charac-
ter of the property, it will be presumed to belong to the ene-
my.2 Goods, found in an enemy's ship, are presumed to be
enemy's property, unless a distinct neutral character, and
documentary proof, accompany them.^ Where a ship has
been captured and carried into an enemy's port, and is after-
wards found in the possession of a neutral, the presumption
is, that there has been a regular condemnation, and the proof
of the contrary rests on the claimant against the neutral pos-
sessor.* Ships are presumed to belong to the country under
whose flag and pass they navigate ; and this, although pur-
chased by a neutral, if they are habitually engaged in the
trade of the enemy's country ; even though there be no sea-
port in the territory of the neutral.^ This circumstance is
held conclusive upon their character, against the claimant;
he being not at liberty to deny the character which he has
worn for his own benefit and upon the credit of his own oath
or solemn declaration. But it is not conclusive against others ;
for these are still at liberty to show that the documentary and
apparent character of the ship was fictitious, and assumed
for purposes of deception.^ So, the produce of an enemy's
colony is conclusively presumed to be epemy's property, so
far as the question of prize is concerned, whatever the local
1 The Resolution, 2 Dall. 19, 22.
3 Wheat, on Captures, App. p. 312; The Magnus, 1 C Rob. 31, 35.
3 2 Wheat R. App. p. 24.
* The Countess of Lauderdale, 4 C. Rob. 283; 2 Wheat App. p. 25.
6 The Vigilantia, 1 C. Rob. 1, 15 ; The Vrow Anna Catharina, 5 C. Rob
144, 150 ; 2 Wheat App. p. 28.
• The Fortuna, 1 Dods. 87 ; The Success, Id. 131 ; 2 Wheat App, p. SO.
PART Vn.] OF EVIDENCE IN PRIZE CAUSES. 459
residence of the trae owner of the soil may be ; and accord-
ingly, the claim of a neutral German to the produce of a
plantation descended to him in a belligerent Dutch colony,
was rejected.^
§ 460. In questions of joint capture^ also, there is an im-
portant presumption in prize law, in favor of pubUc ships of *
war; it being generally and with few exceptions presumed
that all such ships, actualli/ in sight, were assisting in the cap-
ture, and therefore are entitled to a share in the pri:^e.^ And
the benefit of this presumption is extended to all ships asso-
ciated together by public authority ; as, for example, in a
blockading squadron; though they were not all in actual
sight at the moment of the capture.^ But in the case of a
claim of joint capture by a private vessel, this presumption is
not admitted ; but the claimant must prove actual intimida-
tion, or actual or constructive material assistance. The reason
of this distinction is, that public ships are under a constant
obligation to attack the enemy and capture his ships, wher-
ever seen ; and it is presumed that the performance of this
duty is always intended ; but privateers are under no such
obligation, their commissions being taken for mere purposes
of private gain by plunder, which they are at liberty to pur-
sue or not, at their pleasure. And in regard to public ships
in sight, the presumption may be repelled by proof that the
ship, claiming as joint captor, had discontinued the chase, and
changed her course, in a direction inconsistent with any in-
tent to capture ; or by proof of other circumstances plainly
and openly inconsistent with such design.^
§ 461. As to the question, who are to be considered enemies,
1 The Fhcenix, 5 C. Bob. 25 ; The Vrow Anna Catharina, Id. 144, 150 ;
Boyle et aL v. Bentzon, 9 Cranch, 191.
3 The Dordrecht, 2 G. Rob. 55, 64 ; The Bobert, 8 C. Rob. 194.
3 The.Fonigheid, 3 C. Rob. Sll, S16 ; La Flore, 5 C. Rob. 289 ; 2 Wheat.
App. p. 60.
4 See 2 Wheat. App. p. 60-67, where this subject is treated more fully,
and the cases are cited.
460 LAW OP EVIDENCE. [PAKT YH.
or notj the presumption is, that every person belongs to the
country in which he has his domicil, whatever may be the
country of his nativity or of his adoption.^ And the masters
and crews of ships are deemed to possess the national charac-
ter of the ships to which they belong, during the time of their
employment.^ A neutral consul, resident and trading in a
belligerent country, will be presumed and taken, as to his
mercantile character, to be a belligerent of that country.'
Although a person goes into a belligerent country originally for
a temporary and special purpose only, yet if he continues there
during a substantial part of the war, and beyond the time
necessary to disengage himself, contributing, by the payment
of taxes and other means, to the strength of that countiy, the
original and special purpose of his coming will not suffice to
repel the presumption of his hostile character.^
1 The Indian Chief, 3 C. Rob. 12, 22; The President, 5 C. Bob. 248;
The Ann Green, 1 Gall. 274 ; The Venus, 8 Cranch, 253. See 2 Wbcat
App. 27.
a The Embden, I C. Rob. 16 ; The Endraught,.Id. 22; The Bemon,IA
] 02. 2 Wheat. App. p. 28.
3 The Indian Chief, 8 C. Rob. 22.
4 The Harmony, 2 C. Rob. 322. The subject oi belligerent character
arising from mercantile domicil, is farther pursued in 2 Wheat. App. p. 27-29.
PABT YIL] of farther PROOF 461
CHAPTER V.
OF FARTHER PROOF.^
§ 462. The cause having been heard, upon the ship's pa-
pers and the preparatory examinations, if upon such hearing
it still appears doubtful, it is in the discretion of the Court to
allow or require farther proof, either from the claimants alone,
or equally from them and the captors.^ In some cases it is
required by the Court, for its own relief from doubt ; in others,
it is allowed to the party, to relieve his case from suspi-
cion ; and it may be restricted to specific objects of inquiry.
It may be ordered upon affidavits and other papers, intro-
duced without any formal allegations, which is the more
modern and usual mode, introduced for the sake of conven-
ience ; or it may be ordered upon plea and proofs according to
the more ancient course ; in which case the cause is opened to
both parties, de novoj upon new and distinct allegations.^
Plea and proof has been termed '^ an awakening thing ; " ad-
monishing the parties of the difficulties of their situation, and
calling for all the proof which their case can supply.* When
farther proof is allowed to the claimants, in the ordinary
1 See, on this subject, 1 Wheat. App. Note I ; 2 Wheat. App. Note 11.
' Farther proof is not peculiar to prize causes. The Court will order it
on the Instance side, in a revenue cause, where the evidence is so con-
tradictory or ambiguous as to reader a decision difficult The Samuel, 1
Wheat. 9.
3 The Minerva, 1 W. Bob. 169.
4 The Magnus, 1 C. Boh. 88. And see 2 Browne, Cit. and lAdm. L. p.
453; The Ariadne, 1 C. Boh. 313; The Sally, 1 Gall. 408.
38*
462 LAW OF BVIDBNCB. [PAET VH-
mode, the captors are not permitted to contradict, by affida-
vits, the testimony brought in ; counter-proof on the part of
the captors being admissible only under the special direction
of the Court.^
§ 463. Farther proof may be ordered by the Court Uself^
upon any doubt, arising from any quarter ; whether the doubt
arises solely from the evidence already in the cause, or is
raised by circumstances extrinsic to that evidence. But this
is rarely done upon the latter ground, unless there is also
something in the original evidence which suggests farther
inquiry. Thus, where a vessel was stopped and searched by
a ship of war, and a letter disclosing the hostile character of
the vessel was found on board and was transmitted by the
searching officer, officially, to the king's proctor, after which
the vessel, being permitted to proceed, was captured and sent
in by another cruiser ; this letter, under the circumstances,
was allowed to be introduced on farther proof.^ Where the
case is perfectly clear, and not liable to any just suspicion,
upon the original evidence, the Court is not disposed to favor
the introduction of extraneous matter, or to permit the captors
to enter upon farther inquiries.^ And where farther proof is
ordered by the Court expressly with respect to the property
and destination of the ship on the return voyage, and it is
accordingly furnished by the claimants, the captors wall not
be permitted to argue for a condemnation on a new ground
disclosed by the farther proof, but the Court will confine all
objections to the points already designated for farther inves-
tigation.^
§ 464. In cases of reasonable doubt, the Court v^ill admii
i The Ariadne, 1 C. Rob. 813.
3 The Romeo, 6 C. Rob. 351. But in a prior case, an application nearlj
similar was refused. The Sarah, 3 C. Kob. 330. Suproj ^ 448. And see
The Liverpool Packet, 1 Gall. 525 ; The Bothnea & Janstoff, 2 Gall. 78, 82.
3 Ibid. The Alexander, 1 Gall. 533.
4 The Ljdiahead, 2 Acton, 138.
PART YII.] OF FARTHER PROOF* 463
the claimant to farther proof ^ where his condact appears fair,
and is not tainted with illegality.^ It is the privilege of hon-
est ignorance, or honest negligence, to neutrals who have not
violated the law of neutrality ; as, for example, for the ab-
sence of a bill of sale of a ship purchased in the enemy's coun-
try.2 So, where the bill of lading is unaccompanied by any
invoice or letter of advice, the neutral claimant may be ad-
mitted to farther proof, even though the ship and the residue
of the cargo were belligerent, and the master had thrown
papers overboard.^ Farther proof will also be allowed to the
claimant, where the captors have been guilty of irregularity,
in not bringing in the papers, or the master of the captured
ship.* But where farther proof is allowed to the claimant,
proof by his own affidavit is indispensably necessary, as to
his proprietary interest, and to explain the circumstances of
the transaction ; and the absence of such proof and explana-
tion always leads to considerable doubt.^ If, upon an order
for farther proof, the party disobeys or neglects to comply
with its injunctions, such disobedience or neglect will gene-
rally be fatal to his claim.^
§ 465. In allowing farther proof to captors ^ .the Court is
more reluctant, and sparing in its indulgence ; rarely allow-
ing it when the transaction appears unsuspicious upon the pre-
paratory testimony ; and never, unless strong circumstances
or obvious equity require it. And in such cases it is ad-
missible only under the special direction of the Court ; which
can never be obtained where the captors hate been guilty of
gross misconduct, gross ill faith, or gross negligence, the at-
tendant of fraud ; or where the case does not admit of a fair
explanation on their side ; for the Court will not trust with an
^ The Bothnea & Janstoff, 2 Gall. 82.
9 The Welvaart, 1 C. Rob. 123, 124.
3 The Friendschafl, 8 Wheat. 14, 48.
^ The London Packet, 1 Mason, 14.
5 The VenuB, 6 Wheat. 127; La Nereyda, 8 Wheat. 108, 171.
^ La Nereyda, supra*
464 LAW OP BTTDENCB. [PABT VIL
order for farther proof, those who have thus shown that they
mean to abuse it.^
§ 466. An order for farther proof will also be refused to tke
claimant^ where he has been guilty of culpable neglect, or of
bad faith, or other misconduct, justly forfeiting his title to
this indulgence from the Court. Thus, it has been idiued
to the shippers in a hostile ship, who had neglected to put on
board any documentary evidence of the neutral character of
the shipment^ So, where a neutral had fraudulently at-
tempted to cover and claim as his own, an enemy's interest
in the captured property, and afterwards applied for the
admission of farthei; proof as to his own interest in the same
property.^ So, where there has been a concealment of mate-
rial papers ; ^ or, a fraudulent spoliation or suppression of
papers;^ or, where the ship, purchased of the enemy, ha«
been left in the management of the former owner, in the ene-
my's trade ; ^ or, was captured on a return voyage, with the
proceeds of her outward cargo of contraband goods, carried
under false papers for another destination ; ^ or, where the
goods were actually shipped for neutral merchants, between
enemy's ports, but with a colorable destination to a neniral
port ; ^ or, where any other gross misconduct is proved against
the claimants, or the case appears incapable of fair explana-
tion,® or the farther proof is inconsistent with that already in
1 The Bothnea &*Janstoff, 2 GalL 78, 82; The George, Id. 249, 252.
9 The Flying Fish, 2 Gall. 874.
« The Betsey, 2 Gall. 377. And see The Merrimack, 8 Cranch.817;
The Graaf Bernstoff, 8 C. Rob. 109; The Eenrom, 2 C. Bob. 15; The
Bosalie & Betty, Id. 843, 359.
4 The Fortuna, 3 Wheat 892.
5 The St. Lawrence, 8 Crancb, 484. But if the master should supprea
papers relating solely to his own interest, this will not affect the claim of the
owners. The Eising Sun, 2 C. Rob. 108.
8 The Jenny, 4 C. Rob. 81.
7 The Nancy, 8 C. Rob. 122.
8 The Carolina, 3 C. Rob. 75.
9 The Vrow Hermina, 1 C. Rob. 163, 165 ; The Hazaid, 9 Cianch, 205;
The Pizarro, 2 Wheat 227.
PABT VII.j OP FARTHER PROOF. 465
the case ; ^ or the case discloses mala fides on the part of the
claimant^
§ 467. As to the mode of taking testimony in cases of far-
ther proof, it is to be observed, that mere oral testimony is
never admitted; but the evidence must be in documents and
depositions, taken in the manner already mentioned. In the
Supreme Court of the United States it is taken upon com-
missions alone.^
> The Euphrates, 8 Cranch, 385 ; The Orion, 1 Acton, 205. But that
this rule is not inflexible, see La Flora, 6 C. Rob. 1.
s The Juflrouw Anna, 1 C. Rob. 126.
3 The George, 2 Gall. 249, 252; Rules of the Supreme Court, Reg. 25,
27; Supra, ^457.
PART YIII.'
OF EVIDENCE
IN
COURTS MARTIAL.
PART VIII.
OF EVIDENCE IN COUETS MARTIAL.
CHAPTER I
FBELIMINARY OBSEBVATIOKS.
§ 468. In entering upon the subject of evidence in Courts
Martial, we are led first to observe the distinction between
Martial Law and that which is commonly, and for the sake
of this distinction, termed Military Law. The difference be-
tween them relates more directly to the subjects of jurisdic-
diction, but in its results it affects the rules of evidence. In
the language of Lord Loughborough, << where Martial Law
prevails, the authority under which it is exercised claims a
jurisdiction over all military persons, in aU circumstances.
Even their debts are subject to inquiry by a military author-
ity ; ^very species of offence, committed by any person who
appertains to the army, is tried, not by a civil judicature, but
by the judicature of the regiment or corps to which he be-
longs." ^ It extends also to a great variety of cases not rela-
ting to the discipline of the army, such as plots against the
sovereign, intelligence to the enemy, and the like. It is
'^ founded on paramount necessity, and is proclaimed by a
military chief; " and when it is imposed upon a city or other
1 Grant v. Gould, 2 H. Bl. 98.
VOL. m. 40
470 LAW OP EVIDENCE. ' [pAST Vm.
territorial district, all the inhabitants and all their actions are
brought within the sweep of its dominion. Bat MilUofy
Law has its foundation and limits in the statutes for esta-
blishing rules and articles for the government of the Army
and Navy, and in the instructions and orders issued by the
Executive Magistrate pursuant thereto, and in virtue of his
authority as Commander-in-Chief. Its jurisdiction extends
only to those who are a part of the army^ in its various grades
and descriptions of persons ; and it is limited to breaches of
military duty} These breaches of duty are in many instances
strictly defined ; particularly in those cases which are fatally
or highly penal ; but in many others it is impossible more
precisely to mark the offence than to call it a neglect of dis-
cipline.2
§ 469. It is thus apparent, that while Martial Law may,
or does in fact, assume cognizance of matters belonging to
civil as well as to criminal jurisdiction. Military Law has re-
spect only to the latter. The tribunals of both are alike
bound by the common law of the land in regard to the rules
of evidence, as well as other rules of law,* so far as they are
1 Where an officer was charged with scandalous and in&mous conduct, 1st
in submitting tamely to imputations upon his honor, and 2dly. in attemptag
to seduce the wife of another officer ; and was acquitted upon the first epeo-
fication, but was found guilty of the fact in the second, but acquitted of
the charge of " scandalous and in&mous conduct, unbecoming an officer and
a gentleman ; " the sentence was disapproved and set aside ; on the groond
that the fact itself, in the latter specification, divested of all connection with
the discipline of the army, was not a subject of military cognizance. Case
of Capt. Gibbs, Simmons on Courts Martial, p. 439-441. But where Ae
fact itself involves a breach of military discipline, such as striking an infenor
officer, and using opprobrious language towards him, though the party Q
acquitted of the chax^ of "scandalous and infamous conduct, unbecoming
an officer and a gentleman," yet he may well be sentenced under the spech
fication. Case of Lt. Dunkin, Sinunons, p. 442, 443.
9 2 H. BL 100; 1 McArthur on Courts Martial, p. 83-37; 1 Kent,
Comm. 341, note ; Wolton v. Gavin, 15 Jur. 829 ; 16 Ad. & El. 48, N. S.;
Mills V, Martin, 19 Johns. 7, 20 - 22 ; Smith v. Shaw, 12 Johns. 257.
3 " The act for punishing officers and soldiers by martial law has only w^
PART Vin.] PRELIMINABY OBSERVATIONS. 471
applicable to the manner of proceeding ; but Courts Martial)
when administering the Military Law, having cognizance
only of criminal offences, are bound by the rules of evidence
administered in criminal cases in the Courts of Common
Law ; and therefore ought not to convict the prisoner until
all reasonable doubt of his guilt is removed ; allowing the
presumption of innocence, in all cases, to operate in his
favor; ^ whereas, when taking cognizance, under Martial
Law, of matters of merely civil conduct, such as the non-pay-
ment of debts, or the like, they are at liberty to decide accord-
ing to the preponderance of testimony, on either side.^ The
obligatory force of the Common Law of evidence was so-
lemnly recognized in England, in the case of the mutineers in
the ship Bounty. These men were tried by a Court Martial
at Portsmouth ; and there being no evidence against one of
the prisoners, he was offered as a witness on behalf of another
of them, who insisted on the right to examine him ; the
Court, however, by advice of the Judge Advocate, refused to
permit him to be examined, saying that the practice of Courts
Martial had always been against it ; and the prisoner was
condemned to death. But upon the sentence being reported
to the king, execution was respited until the opinion of the
Judges was taken ; and they all reported against the legality
of the sentence, on the ground of the rejection of legal evi-
dence ; and the prisoner thereupon was discharged.^
§ 470. A Court Martial is a Court of limited and special
down such rales for the proceedings of Courts Martial as were intended to
differ from the usual methods in the ordinary Courts of Law; it is therefore
natural to suppose, that where the act is silent, it should be understood that
the manner of proceeding at Courts Martial should be regulated by that
of the other established Courts of judicature.'' Adye on Courts Martial,
p. 45.
1 2 McArthur, p. 52, 54.
2 Supra, ^ 29 ; Adye, p. 46, 48, 97-116.
8 Muspratt's case, 2 McArthur, 158 ; 1 East, R. 312, SIS. And see Strat-
ford's case, Ibid.; Simmons on Courts Martial, p. 485 - 487 ; AtUe^Yol. 1,
^ 858, 868 ; Home v. Bentinck, 2 B. & B. 180. See also Capt. Shaw's trial,
passim*
472 LAW OP BVIBBNCB. [PABT Vm.
jurisdiction. It is called into existence by force of express
statute law, for a special purpose, and to perform a particu-
lar duty ; and when the object of its creation is accomplished,
it ceases to exist. The law presumes nothing in its favor.
He who seeks to enforce its sentences, or to justify his con-
duct under them, must set forth affirmatively and clearly all
the facts which are necessary to show that it was legally con-
stituted, and that the subject was within its jurisdiction.
And if, in its proceedings or sentence, it transcends the limit
of its jurisdiction, the members of the Court, and the officer
who executes its sentence are trespassers, and as such are
answerable to the party injured, in damages, in the Courts of
Common Law.^
§ 471. It is not proposed here to describe the course of
practice and forms of proceeding in Courts Martial, except
so far as they may respect the rules of evidence ; and this is
chiefly in the form of the complaint or accusation. These
proceedings being of a criminal character, the party accused
is entitledy by the Constitution of the United States, ^ to he
informed of the nature and cause of the accusation^^ against
him ; and this, not in general terms, but by a particular state-
ment of all that is material to constitute the offence, set forth
with reasonable precision and certainty of time and place,
and in the customary forms of law. In other words, the ac-
cusation ought to be drawn up with all the essential preci-
sion, certainty, and distinctness which the prisoner is entitled
to demand in an indictment at Common Law ; though it
needs not to be drawn up in the same technical forms ; the
same reasons applying alike, in both cases.^ Hence, in a
charge of mutiny^ it is essential to state that the act was
done in a mutinous or seditious manner ; in a charge of mur^
I Wise w. Withers, 8 CraDcli, 831, 887 ; Duffield v. Smith, 3 S. & B. 590 ;
Mills v. Martin, 19 Johns. 7,32; Smith v. Shaw, 12 Johns. 257, 265; Brooks
V. Adams, 11 Pick. 442 ; The Stat« v, Stevens, 2 McCord, 82.
9 See supray $ 10; Kennedy on Courts Martial, p. 81, 82; 2 McAithur
on Courts Martial, p. 8, 9.
PART yni.] PRELIMINARY OBSERVATIONS. 473
der, it is necessary to state that the prisoner, of his malice
aforethought^ feloniously murdered the deceased; as is re-
quired in an indictment for that crime ; ^ and so in all other
offences at Common Law ; but in prosecutions for other of-
fences, the practice is to adopt the language of the statute or
article in which they are described, with a sufficient specifi-
cation of the act constituting the offence.^
§ 472. The accusation^ in Courts Martial, which stands in
place of the. indictment in Courts of Common Law, is com-
posed of charges and specifications. The office of the charge
is to indicate the nature of the offence, and the article of war
under which it falls; and therefore it generally is either
couched in the language of the article iteelf, or is stated in
general terms, as a violation of such an article, mentioning
its number. The former mode is regarded as most proper,
and therefore is usually pursued ; especially where the article
includes various offences, or is capable of violation by vari-
ous and different actions. The latter is allowable only where
the article describes a single offence, in which no mistake
can be made.^ The specification states the name and rank
of the prisoner, the company, regiment, &c., to which he be-
longs, the acts which he committed and which are alleged to
constitute the offence, with the time and place of the trans-
action ; and where the essence of the offence consists in hurt-
ing or injuring the person or property of another, the name
and description of the person injured should be stated, if
known ; and if not, then it should be alleged to be unknown.^
If the prosecutor is unable precisely to state the time and
place of the offence, he may charge that the fact was com-
mitted at or near such a place, and on or about such a time.
1 See supra, ^ ISO.
3 2 McArthur on Courts Martial, p. 8, 9. '
3 O'Brien on Military Law, p. 233.
^ O'Brien, p. 284; Supra, ^12, 22. The specification, like a bill in
Equity, should state the/ac< to be proved, but not the evidence by which the
fact is to be proved. See Whaley v. Norton, 1 Yem. 488.
40*
474 LAW OF EVIDBNCB. [PABT YIH.
But this is not to be permitted^ if it can possibly be avoided
without a sacrifice of justice, as it tends to deprive the pri-
soner of some advantage in making his defence.^ In fine,
though Courts Martial, as has just been observed, are not
bound to all the technical formalities of accusation that pre-
vail in Courts of Law, yet they are bound to observe the
essential principles on which all charges and bills of com-
plaint ought to be framed, in all tribunals, whether civil, cri-
minal, or military ; namely, that they be sufficiently specific
in the allegations of time, place, and facts, to enable the party
distinctly to know what he is to answer, and to be prepared
to meet it in proof at the trial, and to enable the Court to
know what it is to inquire into and try, and what sentence it
ought to render, and to protect the prisoner from a second
trial for the same offence.^
1 Kennedy, p. 82.
9 See Simmons on CourtB Martial, p. 161 ; Ante^ VoL 2, ^ 7 ; Kennedj,
p. 81 ; Anny Regulations, Art 87. The nature of tiie accusation, in Courts
Martial, may more clearly appear from the following precedents: —
1. On Army Regulations^ Art 5.
Accusation against Lieut A. B. of regiment ( or corps) of the
Army of the United States.
Charge.
Using contemptuous words against the President of the United States.
SpecificeUum,
For that Lieutenant A. B. of regiment (^c.) did use the following
contemptuous words against the President of the United States, or (if in
conversation) words of similar import; namely, (here specify the words.)
Said words being used by him in a conversation (ory speech, address, tcrilinff^
or publication^ as the case may be,) held (delivered or published^ §■<?.,) at or
near on or about the day of A. D. 18 — , (or otherwise de-
scribe the publication.') (See O'Bilen, p. 2^.)
2. On Navy Regulations, Art, 18.
Charges and Specifications thereof, preferred against Captain J. S. of the
Navy of the United States, by Captain J. H. of said Navy.
Charge 1st.
Treating with contempt his superior officer, being in the execution of the
duties of his office.
PAET Vni.] PRELIMEffABY OBSERVATIONS. 475
§ 473. The prisoner's answer to the accusation may be by
a special plea to the jurisdiction of the Court ; as, for exam-
ple, that it has been improperly or illegally detailed ; or, that
it is not composed of the requisite number of officers ; or, that
the offence is purely of civil and not of military cognizance ;
or, that he is not of a class of persons amenable to its juris-
diction. Or, he may answer by a plea in bar ; such, for ex-
ample, as that the period of time, within which a prosecution
for the offence might be commenced, had already elapsed ;
or, that he had once been legally tried for the same offence ;
or, that the proper authority had officially engaged that, on
his becoming a witness for the government against an accom-
plice for the same offence, he should not be prosecuted. And
if these pleas are overruled, he still may put the allegations
in issue by the general plea of not guilty^ in the same man-
ner as in criminal Courts, on the trial of an indictment.^
Specification UL
For that the said Captain J. S. on or about the day of in the
year , being then in command of the United States ship , lying in
the harbor of , did write and send a contemptuous letter to Captain J. H.,
commandant of the Navy Yard at , of the purport following : to wit,
(^Here the letter it set forth,)
Thereby imputing to him unworthy motives in (here stating the injurious
tendency and meaning of the letter.) (See Capt Shaw's Trial, p. 4.)
It has been said, that where the party is accused of having used disre-
spectful or insulting language, the words themselves ought not to be set forth
in the specification, because this would suggest to the prosecutor^s witnesses
the testimony expected from them, and be equivalent to asking them
leading questions. See Kennedy, p. 88. But it may be observed, on the
other hand, that to omit this, would deprive the prisoner of the precise in-
formation of the nature of the accusation to which he is justly entitled in
order to prepare his defence. It is however to be remembered, that where
the language is profiine or obscene, the law does not require it to be precisely
stated, but, on the contrary, does require that its nature be indicated only in
general and becoming terms. In other cases, the injury above alluded to by
Mr. Kennedy may be prevented, by omitting to read the specification in the
hearing of the witness. See Simmons, p. 462, 463.
1 Maltby on Courts Martial, p. 58-60; 2 McArthur, p. 26, 27; O'Brien
on Military Law, p. 247 - 251.
476 LAW OF EVIDENCE. [PAKT Vm.
§ 474. The Judge Advocate^ or some person depated to act
in his stead for the occasion, conducts the prosecution in the
name of the United States ; but he is required so far to con-
sider himself as counsel for the prisoner, after the prisoner has
pleaded to the accusation, as to object to any leading ques-
tion to any of the witnesses, or any question to the prisoner,
the answer to which might tend to criminate himself.^
§ 475. Courts of Inquiry^ in England, are not regulated by
any statute, nor by any standing regulation, but depend on
the will of the sovereign, or of the superior officer convoking
the Court, both as to the officers who may compose it, and
as to every particular of its constitution. It is not a judicial
body, but is rather a council ; having no power to compel the
attendance of witnesses not of the army or navy, as the case
may be, nor to administer oaths ; nor is any issue formed
which it is competent to try.^ But in the American Military
and Naval Service, these Courts have a legal constitution
and authority. Military Courts of Inquiry may be ordered
by the general or commanding officer, consisting of one, two,
or three officers, and a Judge Advocate or other suitable per-
son as a recorder, all of whom are sworn. They have the
same powers as Courts Martial to summons witnesses and to
examine them on oath ; and the parties accused may cross-
examine the witnesses.* Naval Courts of Inquiry may be
ordered by the President of the United States, the Secretary
of the Navy, or the commander of a fleet or squadron ; and
are constituted and empowered in the same manner.^ The
proceedings of these Courts are authenticated by the signa-
tures of the President of the Court and of the Judge Ad-
vocate ; and in all cases not capital, nor extending to the dis-
mission of an officer, in the army, nor of a commissioned or
^ Army Regulations, Art 69.
3 Simmons, p. 95 - 99 ; 1 McArthur, p. 107 - 118 ; Infra^ ^ 498.
' Army Regulations, Art 91.
* U. S. Stat. 1800, ch. 83, § 2, Art 1.
PART VIII.] PRELIMIKARY OBSERVATIONS. 477
warrant officer, in the navy, they are admissible in evi-
dence, provided that oral testimony of the facts cannot be
obtained.^
I Anny Regulations, Art 92 ; U. S. Stat 1800, ch. 33, ^ 2, Art 2.
478 LAW OF EVIDENCE. [PART VUL
CHAPTER II.
OF EVIDENCE IN COURTS MARTIAL.
1. GENERAL RULES.
§ 476. It has already been intimated, that Courts Martial
are bound, in general, to observe the rules of the Isrw of evi-
dence by which the Courts of criminal jurisdiction are go-
verned. The only exceptions which are permitted, are those
which are of necessity created by the nature of the service,
and by the constitution of the Court, and its course of pro-
ceeding. Thus, the rule respecting the relevancy of evidence}
prohibits the Court Martial from receiving any evidence of
matters not put in issue by the charge, or which would impli-
cate the prisoner in a new and distinct offence, or in a degree
or extent of guilt not appearing in the charge on which he is
arraigned.* This rule, however, does not forbid inquiry into
circumstances which, though collateral, and not mentioned in
the specifications, yet have a direct bearing on the matter
charged; as, for example, on a charge of larceny of specified
goods, the fact that other goods, stolen at the same time and
from the same place, were found in the prisoner's possession,
unaccounted for, may be shown, for the purpose of identify-
ing the prisoner as the person who stole the missing goods.^
So, ako, on a charge of desertion, the essence of which de-
1 Ante, Vol. 1, § 60.
9 SimmoDs, p. 420 ; Kennedy, p. 52.
3 Simmons, p. 422. And see Ante, Vol. 1, ^ 52, 53.
PART VIII.] OP KVIDBNOB IN COURTS MARTIAL. 479
p>ends on the intention not to return, evidence is admissible
that the prisoner, on the night of his departure, committed a
highway robbery, for which he had been tried and convicted.^
The circumstances of the robbery might be irrelevant ; but
the fact of the crime, proved by the record of his conviction,
would warrant the inference that he did not intend to return.
On the same principle, on a charge of using contemptuous,
disrespectful, or unbecoming language towards his command-
ing officer at a stated time, or in a particular letter, evidence
that the accused at other times used similar language on the
same subject, is admissible, in proof of his intent and mean-
ing in the language specified in the accusation.^
§ 477. In regard to the admissibility of evidence of the
prisoner's character^ when offered by himself. Courts Martial
do not appear to have felt any of the doubts which Criminal
Courts have sometimes entertained; but on the contrary,
it has ever been their practice, confirmed by a general order,
to admit evidence in favor of the prisoner's character, imme-
diately after the production of his own proofs to meet the
charge, whatever may be its nature ; and even to permit him
to give in evidence particular instances in which his conduct
has been publicly approved by his superiors. But the prose-
cutor has no right to impeach the prisoner's character by evi-
dence, unless by way of rebutting the evidence already ad-
duced by the prisoner himself;^ much less will the prosecutor
be permitted to give evidence in chief, as to the prisoner's
general habits of life, in order to show that he has a general
disposition to commit offences of the kind of which he is
accused. The prisoner, on the other hand, may always meet
the charge by evidence of his own habits of life and traits of
character, of a nature opposed to the commission of any
1 Sinunons, p. 422. And see Ante^ Vol. 1, ^ 52, £3.
3 Simmons, p. 423 ; Supra, ^ 168. And see antCj Vol. 2, ^ 418.
3 Simmons, p. 427-429; Kennedy, p. 61 ; O'Brien, p. 191. And see
supra, ^ 25, 26 ; Ante, Vol. 1, J 54, 55.
480 ' LAW OF EVIDENCE. [PART VHI.
offence of that kind ; as, for example, in answer to a charge
implicating his courage, he may prove his character for per-
sonal bravery and resolution.
§ 478. The opinions of witnesses are perhaps more fre-
quently called for in military trials than in any others ; but
the rule which governs their admissibility is the same here as
elsewhere, and has already been stated in a preceding volume.*
But it is proper here to add, that where the manner of the
act or of the language with which the prisoner is charged is
essential to the offence, as, whether the act was menacing and
insulting, or cowardly or unskilful, or not, or whether the
language was abusive or sarcastic or playful, the opinion
which the witness formed at the time, or the impression it then
made upon his mind, being contemporaneous with the fact,
and partaking of the res gestce^ is not only admissible, but is
a fact in the case which he is bound to testify. But in cases
of military science, affecting the prisoner, and depending on
a combination of facts which are ahready in testimony before
the Court, and upon which every member of the Court is
competent, as a military officer, to form an opinion for him-
self, it is deemed hardly proper to call upon a witness to state
his opinion, nor is he bound to give it if called for.^ It is.
however, perfectly proper to put questions involving opinion,
to an engineer, as to the progress of an attack, or to an artil*
lery officer, as to the probable effect of his arm, if directed in
a certain assumed manner ; such questions, though belonging
to military science, not being presumedly within the know-
ledge of every member of a Court Martial.^
§ 479. Testimony is sometimes admissible, which goes to
implicate a third person who is not a party to the trial ; as,
for example, where it is essential to the prisoner's own justi-
1 Arde, Vol. 1, § 440, 441, 676, 580, n.
3 See Admiral Keppel's Trial, 2 McArthiar, p. 185 - 146 ; Gen. Whitelocke's
Trial, Id. 147-154.
' Simmons, p. 433.
PART Vm.] OP EVIDENCE IN COURTS MARTIAL. 481
fication that he should show that the fact was done by another,
and not by himself, such testimony will be received, notwith-
standing it may tend to criminate one who is a stranger to
the proceedings.^
§ 480. The rule, that it is sufficient if the substance of the issue
or charge be proved^ without requiring proof of its literal
terms, is also applied in Courts Martial in the same manner as
at Common Law. Thus, where a prisoner is charged with
the offence of desertion, and the proof is merely that he was
absent without leave ; the latter fact is the substance of the *
issue, constituting in itself an offence sufficient to warrant a
conviction ; the motive and design, which raise it to the crime
of desertion, being only concomitants of the act. So, on a
charge of offering violence to a superior office/, by discharg-
ing a loaded musket at him while in the execution of his
office ; the prisoner may be convicted and punished on proof
of the fact of violence, though it be not proved that he had
any knowledge of the rank or authority of the officer ; the
principal fact being the violence offered, and the rank and
authority of the officer being circumstances of aggravation.
So also, where an officer is charged with behaving in a scan-
dalous and infamous manner, unbecoming the character of an
officer and a gentleman ; and the facts specified and proved
do of themselves constitute a breach of military discipline
and good order, but the charge of scandalous and ungentle-
manly conduct is not supported by the evidence ; yet enough
is proved to justify a conviction and sentence for the minor
offence involved in the specification.^ But if the facts stated
in the specification do not of themselves constitute a breach
of discipline, or fall within military cognizance, and the impu-
tation of scandalous and ungentlemanly conduct is not proved,
the prisoner must be acquitted.*
^ Kennedy, p. 63.
« Ante, VoL 1, § 56.
3 Simmons, p. 437, 438, 443. And see Army Regulations, Art 83 ; Lt
Dunkin's case, Simmons, p. 442. Supra, ^ 468, note.
^ Capt. Gibb's case, Simmons, p. 439.
VOL. III. 41
482 LAW OP EVIDENCE. [PART Vin.
§ 481. The allegations of time and place generally need not
to be strictly proved. * But if the jurisdiction of the Ck>urtis
limited to a particular territory, the offence must be alleged
and proved to have been committed within that territory ; and
the like strictness of allegation and proof is necessary, where
the prosecution is limited within a particular period of time
after the offence was committed.^ The usual allegation as
to time is, "on or about" such a day; but where the offence
is alleged to have been committed on a precisely specified
day, and is proved to have been committed on another and
different day, it is said to be in strictness the duty of the
Court to specify, in their finding, the precise day proved.^
§ 432. The rule, also, requiring the best evidence of whick
the case, in its nature, is susceptible, is the same in Military
Law as at Common Law.^ In the administration of this rule
a clear distinction is to be observed between the best possible
evidence, and the strongest possible assurance. The rule
merely requires the production of such evidence as is primary
in its nature, and not secondary or substitutionary. Hence it
demands the production of original documents, if they exist
and can possibly be obtained, rather than copies or extracts.
But it does not insist on an accumulation of testimony,
where the fact is already proved by one credible witness.
In cases of necessity, it admits the prosecutor as a competent
witness. Thus, if an inferior officer is prosecuted by his
superior, on a charge of insulting him when alone, by opprobri-
ous and abusive language, the prosecutor is a competent and
sufficient witness, to support the charge.^
§ 483. Courts Martial also admit exceptions to this role,
similar to those admitted at Common Law. Thus, on the
1 See Ante, Vol, 1,^ 66, 61, 62.
3 Simmons, p. 444, 445, note.
3 Ante, Vol. 1, ^ 82.
4 Lt Thackeray's case, 2 A^c Arthur, 103, 104. Id. App. Na 17. Case
of Paymaster Francis, Simmons, p. 450.
J
PART Vni.] OF EVIBSNOB IN COURTS MARTIAL. 483
trial of an officer or soldier for disobedience of the orders of
his superior, it is not, in general, necessary to produce the
commission of the superior officer, in order to prove his official
character and rank ; but evidence that he had publicly acted
and been recognized and obeyed as an officer of the alleged
grade, and that this was known to the accused, will be suffi-
cient,/?nmrf/a«e, to establish that fact. So, on a charge of
desertion, or other offence against military discipline, it will
be sufficient to prove that the accused received the pay, or
did the duties of a soldier, without other proof of his enlist-
ment or oath. And where an officer is charged with a breach
of the particular duty of his office, proof that he had acted
in that character will be sufficient, without proving his com-
mission or appointment^
§ 484. Illustrations might be added, of the application of
the common law rules of presumption^ and of the other rules
which govern in the production of evidence ; but these wiU
suffice to show the bearing of the general doctrines of evi-
dence upon the proceedings in Courts Martial.
2. ATTENDAKGE OF WITNESSES.
§ 485. Respecting the power of Courts Martial to procure
the attendance of witnesses^ it is to be observed, that these
Courts, like all others which are entrusted with power defini-
tively to hear and determine any matter, have inherent power,
by the common law, to call for all adequate proofs of the
matters in issue, and of course may compel the attendance of
witnesses.^ The summonses, both on the part of the prose-
cution, and on the part of the prisoner, are issued by the
Judge Advocate, and are served by the provost-marshal or
his deputy, or by a non-comniissioned officer appointed to
1 Simmons, p. 454. And see ante^ Vol. 1, § 92; Rex v. Gardner, 2
Campb. 513.
9 Ante, Vol. 1, ^ 309.
484 LAW OF EVIDENCB. [PART VED.
that duty.^ If the witness is an officer, he may be summoned
by a letter of request from the Judge Advocate ; and if he is
a soldier, a letter is addressed to his commanding officer, re-
questing him to order the soldier's attendance. Persons not
belonging to the army or navy, as the case may be, are sum-
moned by a subpcena. If the Court was called by an order,
and all witnesses were therein required to attend, a failure on
the part of a military witness to attend, when summoned, it
is said would subject him to arrest and trial for disobedience
of orders.^ But irrespective of such express order to attend,
it is conceived that a neglect to attend, without a sufficient
excuse, would subject a military person to arrest and trial for
a breach of discipline,^ and any person to attachment and
punishment for a contempt of Court.* The production of
writings, in the possession of a party or a witness, is obtained
in the same manner as in civil cases.^
§ 486. All witnesses in Courts Martial, and Courts of In-
quiry, whether Military or Naval, must be sworn; buttbe
manner of the oath may admit of some question. In the
Navy Regulations it is only required, in general terms, that
" all testimony given to a general Court Martial, shall be on
oath or affirmation," without prescribing its form ;^ but in the
Army Regulations,^ though it is required that "all persons
who give evidence before a Court Martial, are to be examined
on oath or affirmation^^ yet the article proceeds to add— "w
the following form," — " You swear, or affirm, (as the case
1 2 Mc Arthur, p. 1 7. Courts of Inquiry have the same power to vmfA
witnesses as Courts Martial have, and to examine them on oath. Audj
Kegulations, Art 91 ; Navy Regulations, U. S. Stat. 1800, ch, 83, ^ 2, Art. 1.
9 Simmons, p. 192.
3 Kennedy, p. 83.
* In the Navy Regulations, this power is expressly given ; but it » w ^
herent power in every Court, authorized to sununons witnesses before i
See U. S. Stat 1800, ch 33, ^ 1, art 37 ; Id. ^ 2, art. 1.
5 Ante, Vol. 1, § 809, 819, 568-564.
0 U. S. Stat. 1800, ch. 33, ^ 1, art. 37.
7 Army Regulations, Art 73.
PA»T Vm.] OP BVIDBNCB IN COURTS MABHAL. 486
may be) the evidence you shall give, in the case now in hear-
ing, shall be the truth, the whole truth, and nothing but the
truth. So help you God." The concluding part of this, for-
mula is that to which persons, who are conscientiously opposed
to taking an oath, most strenuously object ; and the question
has arisen, whether this form is imperatively required to be
used in all cases, to the exclusion of that which is administered
in the civil tribunals to persons conscientiously scrupulous of
taking an oath. In a parallel case in the English service, it
has been said that this form, without deviation, was to be
observed in the examination of military witnesses, with refer-
ence to whom it was imperative ; but that with respect to
persons not controllable by the articles of war, the form might
be varied to meet their peculiar views of religious duty.^
S. COMPETENCY OF WITNESSES.
§ 487. The rules in regard to the competency of witnesses
are the same in Courts Martial, as in the Courts of the Com-
mon Law. Hence, as we have seen,^ the prosecutor is admis-
sible as a witness ; as also are the members of the Court. But
it is to be observed, that the Court cannot receive, in private,
any communication in the nature of testimony from one of
its members ; neither ought his private knowledge of any fact,
not testified by him as a witness, to influence his decision in
the cause ; but if he knows any fact material to the issue, he
is bound to disclose it to the parties or to the Court, that he
may be called and sworn as a witness.' He is not thereby
disqualified from resuming his seat as a member of the Court;
1 Simmons, p. 208. This author's own opinion, stated in a note, seems
mach more connstent with the general policy of the law, and with sound
principles of constraction ; namely, that the article was merely intended to
insure uniformity in the form adopted, when not at variance with the esta-
blished religious principles of any sect to which the witness may profess to
belong.
> Supra, ^ 482 ; 2 McArthur, 105, 106.
3 Simmons, p. 466 ; 2 McArthur, p. 86 ; Maltby, p. 48 ; Adye, p. 57.
41
^
486 LAW OF EVIDENCE. [PABT VHI.
but where there is a sufficient number of members, "without
him, to constitute the Court, it is more in accordance with
the usage in Civil Courts that he should withdraw.^
§ 488. Persons incompetent as witnesses at Common Law,
by reason of deficiency of understanding, insensibility to the
obligations of an oath, direct pecuniary interest in the matter
in controversy, infamy, or for other causes,^ are for the same
reasons incompetent to testify in Courts Martial. And the
mode of proof of these disqualifications is, in- all Courts, the
same. In regard to infamy arising from conviction and sen-
tence by a Court Martial, the prisoner is never thereby dis-
qualified, until the sentence has been approved by the supe-
rior authority, where such approval is required ; nor is he then
disqualified, unless the crime itself is in legal estimation, an
infamous crime.^ The crime of desertion is not an ofFence of
this description ; and of course a conviction for it does not
render the party legally incompetent fo testify, however it
may affect the credibility of his testimony.*
§ 489. As to the competency of fellow prisoners^ as wit-
nesses for each other, where several are joined in the same
prosecution^ though the general principle is the same in Courts
Martial as it has, in a preceding volume,^ been stated to be
in suits at law ; yet there is a diversity in its application,
arising from a diversity in the constitution of the Courts. It
is clear that, in such cases, in the Common Law Courts, where,
against one or more of the prisoners, there has been no evi-
dence, or not sufficient evidence to warrant a conviction, a
verdict and judgment of acquittal may immediately be ren-
dered, at the request of the others, and the person acquitted
may then be called as a witness for them. But the regular
1 Simmons, p. 224.
9 -4nte,Voll,^ 827-480.
3 ^nte, Vol. 1,^872-876.
4 Simmons, p. 481.
5 Antey Vol. 1, § 857 - 859, 863.
PAKT VIII.] OF KVIDEKCB IN COURTS MARTIAL. 487
coarse for a prisoner to adopt in that case, in a Court Martial,
would be, on the receipt of the copy of the charges, to apply
to the authority that appointed the Court, urging the necessity
of a separate trial ; and if this is not granted, an application to
the Court is still open to the prisoner ; and the Court may pro-
ceed to a sentence of acquittal of the party not proved to be
guilty, and whose testimony is desired, and adjourn any fur-
ther proceeding, until sufficient time is afforded for this sen-
tence to be confirmed.^ But no good reason is perceived
against admitting the acquitted party as a witness for the
others, immediately upon his acquittal by the Court Martial,
without waiting for a confirmation of the sentence.
4. EXAMINATION OF WITNESSES.
§ 490. Witnesses in Courts Martial are invariably exo'
mined in open Court j jn presence of the parties, except in those
cases where depositions are by law admissible, when taken
pursuant to the Regulations. It is not competent for the
Court to examine a witness by a deputation of some of its
members for that purpose ; though, under peculiar circum-
stances, and in the inability of an important witness to at-
tend at the place appointed for the Court to assemble, the
Court, with the permission or by the order of the authority
convening it, may assemble at the quarters or residence of
the witness.*
§ 491. In the ordinary practice of the Court, the witnesses are
examined apart from each other ^ no witness being allowed to
be present during the examination of another who is called
before him. But this rule is not inflexible ; it is, in modern
practice, subject to the discretion of the Court. Nor is it
1 Simmons, p. 485 ; Muspratt's caae, 2 Mc Arthur^ p. 158. And see Adye,
p. 57.
3 Simmons, p. 461, 462; Adye, p. 115.
488 LAW OF EVIDBNCB. [PART Vni.
. ever so rigidly observed as to eidude the testimony of a per-
son who has inadvertently been present at the examination
of other witnesses.^ The Judge Advocate and the prosecu-
tor, being necessarily present during the whole irial, ought,
if witnesses, to be sworn immediately after the case is opened
on the part of the prosecution ; nor is it deemed proper at
any subsequent stage of the proceedings, to examine them in
chief, unless when they are called as witnesses for the pri-
soner.^ The Court, however, in proper cases, and in its dis-
cretion, will confront any two or more witnesses whose testi-
mony is contradictory ; by recalling them after the close of
the cross-examinations, that opportunity may be afforded to
explain and reconcile their respective statements, and to dis-
cover the truth of the fact.^
§ 492. All evidence^ oraUy given in Courts Martial^ is
taken down in writing by the Judge Advocate, and recorded
on the proceedings, in the words of the witness, as nearly as
may be, and in the order in which it is received by the Court.
A question, being reduced to waiting by the person pro-
pounding it, whether it be the prosecutor, the prisoner, or a
member of the Court, is handed to the President, and if ap-
proved by him, it is read aloud and entered by the Judge Ad-
vocate on the proceedings ; after which, if no objection to it
is sustained, it is addressed to the witness. If it is objected
to by a single member only, of the Court, the party pro-
pounding it is entitled to the collective opinion of the whole
Court as to its admissibility. And if the question is rejected
by the Court, the question, and its rejection, are still entered
of record with the proceedings. If a witness wishes, at any
time before the close of all the testimony, to correct or retract
any part of his evidence in which he has been mistaken, he
will be allowed to do so ; but this must be done by an addi-
1 2 McArthur, p. 88 ; Maltby, p. 65 ; Simmons, p. 465 ; Kennedy, p. 85.
And see arUe, Vol. 1, ^ 482 ; O'Brien, p. 208.
9 Simmons, p. 464, 465 ; 2 Mc Arthur, p. 105.
8 Simmons, p. 468 ; Kennedy, p. 85.
PAKT VIIL] OP EVIDENCB IN COUBTS MARTIAL. 489
tion to what he has before stated, and not by way of erasure
or obliteraiion ; it being important, in all cases, that the supe-
rior authority, which reviews the evidence, should have an
accurate and, as it were, a dramatic view of all that trans-
pired at the trial.^
§ 493. Whether a Court Martial has a ng-A/, of its own
accord, to call witnesses before it who are not adduced by
either of the parties, is a point which has frequently been
agitated, and upon which opposite opinions have been held,
the more modern being in the negative.^ It is at least highly
inexpedient, in ordinary cases, that the Court should thus in-
terfere with the course of the trial ; since the necessity of it
may always be avoided by suggesting the name of the wit-
ness to one or the other of the parties, whose interest might
induce them to summons him. • And in regard to questions
directly propounded by the Court, though its right to do so
cannot be denied, yet the exercise of th6 right certainly does,
in effect, prevent either party from objecting to the legal pro-
priety of the question ; for this has been prejudged by the
member propounding it. K the question is perfectly clear of
doubt as to its admissibility, there can no mischief result
from its being put by the Court.
§ 494. The order and course of the examination of untnesses
in Courts Martial, and of their cross-examination and re-exa-
mination, are the same, in general, as has been stated in
trials at law.^
5. DEPOSITIONS.
§ 495. By the general principles of military law, deposi-
1 Maltby, p. 44, 65, 66 ; 2 McArthur, p. 44, 45 ; Simmons, p. 472 ; O'Brien,
p. 285 ; Kennedy, p. 105.
3 See 2 McArthur, p. 107; Simmons, p. 467 ; O'Brien, p. 259 ; Kennedy,
p. 132-143.
3 ^nte, Vol.1, ^481-469.
y
490 LAW OF EVIDENCE. [PABT Vm.
iions are not admissible in evidence. It is only in those cases
of crime, where, by statutes, they are made admissible on the
trial of indictments, that Courts Martial, in the English ser-
vice, have admitted them.^ But in the American service, it is
specially ordered, that " on the trials of cases not capital, before
Courts Martial, the depositions of witnesses^ not in the line
or staff of the army, may be taken before some Justice of the
Peace, and read in evidence ; provided, the prosecutor and
the person accused are present at the taking the same, or are
duly notified thereof." ^ This regulation, being a statutory
exception to the general rule which excludes depositions,
must be confined to the cases expressly mentioned, namely,
to cases not capital, and to persons not in the line or staff of
the army. In capital cases, and with respect to persons be-
longing to the line or staff, the admissibility of depositions is
governed by the general rule.
§ 496. Depositions^ when taken pursuant to the above regU"
kUion, it is conceived, ought to be taken in the manner and
for the causes stated in the acts of Congress on that subject ;
which, as they have been sufficiently stated in a preceding
volume,^ it is not necessary here to repeat It may, how-
ever, be added, that though a deposition has been informaUy
taken, and therefore is not admissible under the statute, it
may still be read as a solemn declaration of the witness, to
contradict or disparage the testimony he may have orally
given in court It was formerly held, that what a witness
has been heard to state at another time, may be given in evi-
dence to confirm^ as well as to contradict, the testimony he
has given in Court;* but this 'is not now admitted, unless
where the witness is charged with a design to misrepresent,
1 2 Mc Arthur, p. 121 ; Simmons, p. 509.
9 Anny Regulations, Art 74. And see Maltby, p. 65; O'Brien, p. 186.
3 Ante, Vol. 1, ^ 822-024. See U. S. Stat. 1789, ch. 20, § 30; U. S.
Stat. 1793, oh. 22, ^ 6 ; U. S. Stat. 1827, ch. 4.
4 2 Hawk. P. C. b. 2, ch. 46, § 14 ; 2 Mc Arthur, p. 120; Kennedy, p. 98;
Cooke V. Curtis, 6 H. & J. 93.
PART Vin.] OF EVIDENCB IN COURTS MARTIAL. 491
arising from some recently acquired relation to the party or
the cause ; in which case his prior statements may become
material, in order to disprove the charge, by showing that
he had made the same statement before such relation ex-
isted.^
6. PUBLIC AND PRIVATE WRITINGS.
497. The rules already stated in a former volume,^ in re-
gard to the inspection, proof, admissibility, and effect of pub-
lic records and documents, and of private writings, as they
are founded on general principles applicable alike to all judi-
cial investigations, are recognized in all judicial tribunals,
whether civil, military, or criminal ; subject to a few excep-
tions and variations of administration, necessarily arising
from their diversities of constitution and forms of proceeding.
These it only remains for us briefly to illustrate, by a few
military examples.
§ 498. In regard to public military records^ it has been ad-
judged that the report of a Court of Inquiry is a privileged
communication, and cannot be called for without the consent
of the superior military authority which convened the Court ;
nor can an office copy of it be admitted without such per-
mission. It stands on the footing of other secrets of State,
heretofore mentioned.^ Therefore, where the commander-in-
chief directed -a military inquiry to be held, to investigate the
conduct of an officer in the army, who afterwards sued the
president of that Court for a 4ibel, alleged to be contained in
his report and to have been- transmitted to the commander-in-
chief; it was held, upon the broad principle of state policy
and public convenience, that the report, being a matter of
I Ante, Vol. 1, ^ 469 ; Bull. N. P. 294 ; 2 Phil. Evid. 445, 446.
9 Ante, Vol. 1, \ 471-498, 657-682.
3 Ante, Vol. 1, ^ 261.
492 LAW OP EVIDENCE. [PAKT VUL
advice and information given in the course of public duty,
and for the regulation of a public officer, could not be dis-
closed to the world at the pleasure of private persons, in a
^private suit, without permission from the superior authority ;
and that therefore, in the case at bar, the evidence Tvas pro-
perly rejected.^ In the English service, the proceedings of a
Court of Inquiry are held not admissible, in a Court Martial^
as evidence of the facts detailed in the testimony there re-
corded ; and rightly ; for those Courts, in England, are not
considered as judicial bodies, they have not power to admi-
nister oaths, nor any inherent power to summons witnesses ;
aijd the right of the accused party to appear or take any part
in the proceedings is questioned ; it being deemed rather a
Council than a Court.^ But in the American service, as vre
have seen,^ Courts of Inquiry are established by law, and
have a judicial character, with the same power with Courts
Martial to summons and examine witnesses, and giving^ the
accused the same right to cross-examine and interrogate them.
Their proceedings, therefore, are expressly made admissible
in evidence in Courts Martial, in cases not capital, nor ex-
tending to the dismission of an officer ; provided, that the
circumstances are such, that oral testimony cannot be ob-
tained.^
§ 499. The records of Courts Martial^ being the records of
judicial tribunals legally constituted, may be proved and ad-
mitted in evidence, and have effect, like all other judicial
records. General orders and regulations^ issued by the Pre-
sident of the United States, pursuant to law, or by the Secre-
tary of War, or the Secretary of the Navy, within the scope
of their authority, when duly promulgated, are presumed to
be known to all military persons, and therefore will be taken
1 Home V, Ld. Bentinck, 2 Brod. & Bing. ISO ; Simmons, p. 471.
9 Simmons, p. 96, 98, 603 ; 1 McArthur, p. 107-118; Supra^ § 475.
3 Supra, § 475.
* Army Regulations, Art, 92; U. S. Stat. 1800, ch. 83, J 2, Art. 2.
PART Vin.] OE EVIDENCE IN COURTS MARTIAL. 493
notice of by Courts Martial ; the printed copies being used
merely to refresh the memory. The Articles of War^ both
for the land and naval service, being enacted by Congress,
are judicially taken notice of by all persons, as othef public
statutes.^
§ 600. All writings and documents, whether public or pri- •
vate, which are admitted in evidence, are noticed in the pro-
ceedings of the Court; and copies of them should be em-
bodied in the proceedings in the order in which they are
produced in evidence ; or, if voluminous, extracts of so much
as may bear on the question and is required by either party,
may suffice. K their genuineness is admitted by the party
against whom they are produced, the admission also should
be recorded. K, instead of being thus embodied, copies of
them are annexed to the proceedings as an appendix, they
should be numbered, apd lettered, and referred to in their
proper place in the proceedings, and each copy should be
authenticated by the signature of the Judge Advocate, or the
President of the Court.^
§ 501. Though private letters are not legal evidence of the
facts stated in them, and therefore are not admissible in evi-
dence for that purpose, and cannot be annexed to the pro-
ceedings of the Court ; yet the usage of Courts Martial al-
lows an exception to this rule, in regard to letters in favor of
the prisoner's character ; by permitting him to embody them
in his defence ; whereby they become part of the proceed-
ings, and thus are brought to the notice of the authority which
revises the sentence, and receive their due weight and consi-
deration.^
J Simmons, p. 500 - 502. And see arUe, Vol. 1, ^ 471 - 509.
9 Simmons, p. 508.
3 Kennedy, p. 119-120; Col. Quentin's trial, p. 35.
VOL. III. 42
GENERAL INDEX
GENERAL INDEX.
The xramerals in this Index refer to the Volnme; the figures to the Sections.
A.
ABATEMENT,
plea of alien enemy in, IT. 19.
defective or improper service of process, 20.
misnomer, 21.
bill not found by twelve of the grand jury, 22.
non-tenure and disclaimer, 23.
want of parties, 24.
in partnership, 25.
pendency of prior suit, 26.
judgment in, when peremptory, 27.
damages in, 27.
ABDUCTION,
wife competent to prove, I. 343.
ACCESS,
when presumed, I. 28.
ACCESSORY,
not a competent witness for the principal, I# 407,
who is. III. 40.
before the fact, 42, 44.
after the fact, 47, 48.
none in treason, 43.
none in manslaughter, 43.
none in misdemeanors, 43.
countermanding the order, is absolved, 45.
when he may be tried, 46.
how charged, 49.
proof of the charge, 49, 50,
42*
498 INDEX.
ACCESSORY, continued.
husband and wife, when accessory to each other, III. 48.
none in treason, 245.
ACCOMPLICES,
when admissible as witnesses, I. 379 - 382.
(See Witnesses,)
ACCORD AND SATISFACTION,
substance of this issue, II. 28.
what is a good accord and satisfaction, 28.
who is to judge of it, 28 a.
when admissible under the general issue, and when not, 29.
proper parties to, 30.
accord alone, when no bar, 30.
accord, with tender of satisfaction, when sufficient, 31.
when payment and acceptance in satisfaction are both put in
issue, 32.
when presumed from lapse of time alone, 33.
(See Payment,)
ACCOUNT,
rendered, effect of, as an admission, I. 212.
action of, II. 35.
between whom it lies, 35.
pleadings in, 36.
privity necessary to support, 37.
material averments in, 37.
evidence under issue of plene computavit^ 38.
plea of ne unques bailiffs 38.
auditors in, 39.
auditors in trial of issues certified by, 39.
judgment, quod computet^ effect of, 39.
ACCOUNT STATED,
what amounts to proof of, I. 127- 129.
ACCUSED PARTY,
entitled to precise statement of hb offence, III. 10.
to be confronted with witnesses, 11.
ACKNOWLEDGMENT OF DEBT,
what amounts to, II. 440 - 443.
effect of, 440, n.
ACQUIESCENCE,
what is, so as to bind the party, T. 197.
ACQUITTAL,
record of, when evidence, I. 583.
INDEX. 499
ACT OF GOD, •
what is, n. 219.
when it excuses, 219.
ACTS OF PARTIES,
when admissible to explain writings, I. 293, 295.
ACTS OF STATE,
how proved, I. 479.
admissible in prize-causes, III. 456.
(See Public Records and Documents,)
ACTS,
book of, when evidence, I. 519.
ADJUSTMENT OF LOSS,
when and how far conclusive, I. 212. •
(See Admissions*)
ADMINISTRATION,
letters of, how proved, L 519.
prima facie evidence of death, 550.
foreign, effect of, 544.
ADMINISTRATOR,
competency of, as a witness, 347, 1. 402.
admissions by, 179.
promise by, when it must be in writing, 267.
ADMIRALTY AND MARITIME COURTS,
courts of and seals, judicially noticed, I. 5, 479.
judgments, when and how far conclusive, 525, 541.
Jurisdiction of III. 386.
Instance Courts, 387.
Prize Courts, 387.
Instance Causes^
Forms of Proceedings tn, 388 - 401.
by the Roman Law, 389 - 394. *
in U. States Courts, 395 - 401.
libel, its requisites, 395, 397.
information, 396, 397.
amendments in, 397.
answer of defendant, 398.
of libellant, 399.
commissioners, reference to, 400.
causes plenary, what, 401.
summary, what, 401.
Evidence^
1. general rules ^402-408.
as to relevancy, 403.
500 INDEX.
ADMIRALTY AND MARITIME COURTS, cotUinued.
Evidence^
general rulesj continued.
as to burden of proof, III. 404.
best evidence, 405.
presumptions, 406, 407.
spoliation, &c. of papers, 406.
full and half proof, 409.
2. competency of witnesses^ 40^ - 416.
of parties, 410-413.
suppletory oath, 410.
decisory oath, 411.
^ from necessity, 412.
salvors, 412.
captors, 412.
defendant's answer, 413.
weight of answer, 413.
interested persons, 414.
joint libellants for wages, 415.
experts, 416.
3. documents,
in general, 417.
their kinds, 418.
bill of sale, 419.
judicial sale, 420.
charter party, 421.
bill of lading, 422.
shipping articles, 423.
in the merchant-service, 423, 424.
fisheries, 425.
« rdle d*equipage, 426.
rule of interpretation of ^earaen's contracts, 427.
log-book, 428.
its requisites, 428, 429.
how far evidence, 428 - 430.
must be pleaded, 431.
sea-letter, 432.
Mediterranean passport, 432.
certificate of property, 432.
crew-list, 432.
inventory, 432.
manifest, 432.
invoice, 432.
INDEX. 501
ADMIRALTY AND MARITIME COURTS, continued.
Evidence^
documents^ continued.
certificate of origin, IIL 432.
4. depositions^
mode of taking, 433 - 435.
affidavits, 436.
Prize Causes,
Pleadings and Practice, 437 - 443.
delivery of papers, 438.
Commissioners of prize, 439.
monition, 440.
libel, 441. *
claim, 442.
condemnation, 443.
Evidence,
1. in preparatorio, 4^4.
by standing interrogatories, 444.
of what persons, 445.
manner of examination, 446.
value of this testimony, 447.
invocation of papers, 446.
other testimony, when admitted, 449.
when closed, 450.
2. documents,
admissibility of, 451.
proof of, 451.
nature and necessity of, 452.
efiect of want of, 453.
spoliation, 453.
3. competency of proof,
interested persons, 454.
enemies, 455.
declarations of States, 456.
4. mode of taking testimony, 457.
5. presumptions,
of title and ownership, 458, 459. ^
of assistance in capture, 460.
• of enemy's property, 461.
Farther proof,
when, 462.
by « plea and proof," 462.
ordered by the Court, 463.
502 INDEX,
ADMIRALTY AND MARITIME COURTS, continued.
Evidence^
farther proofs continued.
' allowed to claimant, III. 464.
to captors, 465.
when refused, 466.
oral testimony excluded, 467.
ADMISSIONS,
of contents of a writing, when not sufficient, I. 96.
distinction between confessio juris and con/e«sto/adi, 96,203.
by agents, when binding on principal, 113, 114.
what and when receivable, 169, 170.
when allowed in trials for felony, III. 39.
' of signature, II. 164, 165.
of seaworthiness, 401, n.
of marriage, 462.
made by a party to the record, I. 171.
party in interest, 172.
one of joint parties, 172.
party merely nominal, excluded, 172.
how avoided if pleaded, 173.
one of several parties, not receivable unless a joint inter-
est, 174.
rated parishioner, 275.
quasi corporators, 175, n.
one of several parties, common interest not suflScient, unles
also joint, 176.
apparently joint, is 'prima facie sufficient, 177.
answer in chancery of one defendant, when receivable
against others, 178.
persons acting in auter droits when receivable, 179.
(See Equity,)
guardian, &c. binds himself only, 179.
party interested, 180.
strangers, when receivable, 181.
a person referred to by the party, 182.
•^ whether conclusive, 184.
wife, when admissible against husband, 185,341, n.
attorney, 186.
principal, as against surety, 187, 188.
one in privity with another, 189, 190.
assignor, before assignment, 190.
by whom they may be proved, 191.
J
INDEX. 603
ADMISSIONS, continued.
time and circumstances of making the admission, I. 192.
offer of compromise is not an admission, 192.
made under duress, 193.
direct and incidental admissions, same in effect, 194.
implied from assumed character, language, and conduct, 195, 196.
acquiescence, when, 197.
implied from possession of documents, 198.
assent to the verbal statements of another, 199.
verbal to be received with great caution, 200.
whole to be tsfken together, 201, 202.
verbal, receivable only to facts provable by parol, 96, 203.
when, and how far conclusive, 204.
judicial admissions, how far conclusive, 27, 166, 205, 527 a,
means of compelling. III. 308, n.
by payment into Court, I. 205.
if im providently made, what remedy, 206.
acted upon by others, when and how far conclusive, 27, 207, 208.
not acted upon, not conclusive, 209.
when held conclusive, from public policy, 210, 211.
by receipts, 212.
by adjustment of a loss, 212.
by account rendered, 212.
in bill in equity, 212.
(See Equity.)
ADULTERY,
nature of the evidence to establish, II. 40.
proved by evidence of proximate circumstances, 41.
general cohabitation, 41.
general conduct, creating a suspicio violenta^ 41.
when proved by impression and belief of witnesses, 42.
when continuance of presumed, af\er proof of one act, 43.
of wife, when birth of child evidence of, 44.
of husband, acts in proof of, 44.
of either, when proved by visit to brothel, 44.
by disease, 44.
when proved by confession of party, 45.
by evidence of particeps criminis^ 46.
to what time the evidence must relate, 47.
when evidence of acts' not charged is admissible, 47.
proof of, upon indictment for this crime, 48.
when and what evidence of marriage is requisite, 49, 50.
604 INDEX.
ADULTERY, continued.
proof of identity of parties, when requisite, II. 50.
evidence in defence of action for crim. con., 51.
of collusion between husband and wife, 51.
of passive sufferance of husband, 51.
under plea of recrimination, ,52.
of condonation, 53, 54.
proof of damages, 55. ^
proof in mitigation of damages, 56.
letters of wife, when admissible for husband, 57.
general character of wife in issue, 58.
(See Seduction.)
ADVERSE ENJOYMENT,
when it constitutes title, I. 17.
AFFIDAVIT,
may be made in his own case, by atheist, I. 370, n.
by persons infamous, 375.
by other parties, 348, 349, 558.
by wife, 344.
(See Admiralty^ &c., Equity.)
AFFIRMATION,
judicial, when substituted for an oath, I. 371.
AFFIRMATIVE. (See Onus Prohandi.l
AGE,
proof of, I. 104, 116,493.
AGENCY,
nature and definition of, II. 59.
proof of, directly or indirectly, 60.
by deed, when necessary, 61.
where a corporation aggregate is principal, 62.
by writing, when necessary, 63.
by testimony of the agent himself, 63.
by inference from relative situation, 64, 64 a.
by habit and course of dealing, 65, 66.
by possession of negotiable or other security, 65.
by subsequent ratification^ 66.
by long acquiescence, 67.
efiect of ratification, of tortious act, 68.
liability of principal for tortious act, 68.
revocation of, 68 a.
AGENT,
when and how far his declarations bind the principal, I. 113, 2^.
IKDEX. 505
AGENT, continued.
when a competent witness for the principal, and when not, 1. 416,
417. ^
(See Witnesses.)
may prove his own authority, if parol, 416.
when his authority must be in writing, 269
AGREEMENT. (See Contract.)
ALLEGATIONS.' (See Onus Prohandi.)
material, I. 51.
exclude collateral facts, 52.
what are collateral facts, 53.
when character is material, 54, 55.
descriptive, nature of, 56, 57, 58, II. 12.
formal, and informal, what, I. 59.
made descriptive by the mode of statement, 60.
of time, place, quantity, &c.when descriptive, 61, 62.
redundant, 67.
difierence between these and redundancy of proof, 68.
^ immaterial,' ' impertinent,' and ' unnecessary,' 60 n.
ALTERATION,
of instruments, what, and effect of, I. 564 - 568.
distinguished from spoliation, 566.
in a will, when deliberative and when not, IL 681.
(See Private Writings.)
AMBIGUITIES,
latent and patent, what, I. 297 - 300.
when parol evidence admissible to explain, 297 - 300.
not to be confounded with inaccuracies^ 299.
AMENDMENT,
allowed to avoid the consequences of a variance, I. 73.
in admiralty proceedings, III. 397.
of record, when allowed, II. 11.
of process, in the names of parties, 11 a.
of pleadings, 11 ^.
under recent English statutes, II c^ d.
when not allowed, lie.
ANCIENT WRITINGS,
when admissible without proof of execution, 1. 21, 142 -144, 570.
ANSWER,
of one defendant in chancery, when admissible against the oth-
ers, I. 178.
what amount of evidence necessary to disprove, 260, 261.
VOL. III. 43
6i)6 tNTDBX,
ANSWER, continued.
admissible for defendant, why, I. 351, 551.
proof of, 512.
(See Equity.)
APPOINTMENT TO OFFICE.
when proved by acting in it, I. 83 - 92, III. 483.
ARBITRATION AND AWARD,
modes of the submission, and remedies thereon, 11. 69.
remedy by action of debt, when preferable, 70.
proof of the submission, 71.
when by parol, 72.
of the authority of the umpire, 73.
of the execution of the award, 74.
of notice, publication, and delivery of the award, 75.
of demand of payment, when necessary, 76.
of performance by plaintiff, 77.
defences to an action upon an award, 78.
arbitrators, when and how far competent witnesses, 78.
proof of revocation of the submission, 79.
minority of party, 80.
refusal of arbitrators to act, 80.
evidence under non assumpsit^ 81.
ARBITRATORS,
not bound to disclose grounds of award, I. 249.
ARMORIAL BEARINGS,
when evidence of pedigree, I. 105, n.
ARREST,
without process, when lawful, HI. 123, n.
exemption from,
(See Witnesses.)
ARSON,
what, ni. 51.
what is a dwelling-house, 52.
when burning of one^s own house is, 53, 55.
proof of ownership, 54, 57.
actual burning, 55.
felonious intent, 56.
night time, 57.
burning out-house, 57.
ARTICLES OF THE PEACE,
by wife against the husband, I. 343.
ARTICLES OF WAR. (See Acts of State. Courts Manial.)
INDEX. 607
ASCRIPTION OF PAYMENTS, 11. 629-636.
ASSAULT AND BATTERY,
of wife, by husband, I. 343.
assault, what, II. 82.
intent material in, 83.
battery, what, 84.
intent material in, 85.
or, freedom from fault, 85.
when not necessary to be proved, 87.
when defence must be specially pleaded, 85.
proof of time and place, how far material, 86.
when plaintiff may waive one trespass and prove another, 86.
when he is bound to elect, 86.
actual battery needs not to be proved, 87.
consequential damages, when to be specially laid, 88, 89.
proof of, 88.
when not necessary to allege, 89.
damages, what to be alleged, and what may be proved without
special averment, 89.
(See Damages.)
confessions and admissions, when admissible, 90.
conviction on indictment, when evidence in a civil action, 90.
allegation of alia enormia^ its oiffice, 91.
defences in, classes of, and mode of pleading, 92.
evidence under the general issue, 93.
evidence of intention, when material, 94.
when admissible, 94.
necessity, when admissible. 94.
evidence under plea of son assault demesne
with replication of de injuria^ 95.
with replication in justification, 95.
when pleaded with the general issue, 95.
replication of de injuria^ 96.
plea of moderate casligavitj 97.
molliter manus imposuitj 98.
justification of act done to preserve the peace, 99) 100.
indictment for. III. 58.
what is, 59, 60, 61.
intent, when essential, 61.
by menace, when, 61.
accidental violence, when no assault, 62.
lawful correction no as^ult, 63.
608 INDEX.
ASSAULT AND BATTERY, ((ontinued.
in defence, 64.
in defence of property, III. 65.
in prevention of crime, 65.
ASSIGNOR,
admissions by, I. 190.
ASSUMPSIT. (See Contract.)
action of, when barred by prior recovery in tort, I. 532.
when implied, II. 102.
when not, 103.
when plaintiflT must declare on the special contract, 104.
when plaintiff may declare on common counts only, 104.
form of common counts, 105, n.
proof of the consideration, 105.
conditions precedent, 105.
other material facts, under the general issue, 106.
damages, 106.
proof of request, 107, 108.
moral obligation, when sufficient, 107.
promise, when implied, 108.
from tortious conversion, 108, n.
privity, what is sufficient, 109.
parties, want of proper, when fatal, 1 10.
proof of particular capacity of plaintiff, 1 10, 129.
unlawfulness of contract, when fatal, 111.
count for money lent, proof of, 1 12.
money paid, 113.
when defendant's order to pay must be proved, 1 14.
what payments are deemed officious, 1 14.
when contribution may be had, 1 15.
under a judgment, 1 16.
count for money had and received, proof of, 117, 118.
when delivered in trust, 119.
count for money had and received, when obtained by wrong,
120, 121.
count for money had and received, when paid upon a forged se-
curity, 122.
count for money had and received, when paid upon a mistake of
facts or of law, 123.
count for money had and received, when paid upon a c6iistdera-
tion which has failed, 124.
INDBX. 609
ASSUMPSIT, continued.
count for money had and received, when paid upon an agree-
ment rescinded, U. 124.
count for money had and received by agent, action for, 125.
count upon an account stated, proof of, 126, 127, 128, 129.
for work and labor, 136, a.
pleas by defendant in abatement, of misnomer, 130.
coverture, 130.
want of parties, 131, 132.
partnership, 134.
replication to plea of want of parties, 133.
when nolle prosequi may be entered, 133.
replication of infancy, when bad, 133.
general issue, what may generally be shown under, 135.
what matters in discharge may be shown under, 136.
when failure of consideration may be shown under, 136.
ATHEISTS,
incompetent witnesses, I. 368 - 372.
(See Witnesses,)
ATTACHMENT,
for contempt, I. 319.
ATTENDANCE OF WITNESSES,
how procured, I. 309-319.
(See Witnesses. Admiralty ^ Sfc. Equity. Courts Martial.)
ATTESTING WITNESSES,
declarations of deceased witnesses rejected, why, I. 126.
(See Private Writings.)
ATTORNEY,
when his admissions bind his client, 1. 186.
whether a competent witness, 364, 386.
actions by, in general, II. 138.
actions for fees, evidence in, 139.
by partners, 140.
retainer, effect of, 141, 142.
conduct of business by, 142.
extent of undertaking, and liability, 144, 145.
defences to action by, for fees, 143.
when negligence may be shown, 143.
what damages recoverable against, 146.
when amenable to summary jurisdiction, 147.
actions against, for misconduct causing loss of debt, 148.
43*
^
510
INDBX.
ATTORNEY, continued.
loss of title, 149.
(See Privileged Communications,)
ATTORNEY AND CLIENT,
burden of proof between in Equity, III. 253.
AUCTIONEER,
is agent of both buyer and seller, I. 269.
AUTHORITY,
when it needs not be proved, II. 316, n.
AUTREFOIS ACQUIT, III. 35.
AUTREFOIS CONVICT, III. 35.
(See Former Judgment.)
AVERMENT. (See Allegations.)
AWARD,
generally conclusive, I. 183, n. 184.
B.
BAIL,
how rendered a competent witness for principal, I. 430.
(See Witnesses.)
BAILOR,
when a competent witness, I. 348.
BANK,
books of, I. 474, 493.
(See Public Records and Documents.)
BANKER'S CHECKS,
presentment of, II. 195, a,
BANKRUPT,
when competent as a witness, I. 392.
BANKRUPTCY,
effect of discharge by, to restore competency, I. 430.
BAPTISM,
register of, I. 493.
BARON AND FEME. (See Husband and Wife.)
BARRATRY,
what, III. 66, 67.
indictment for, 66, n.
proof of, 67.
BASTARDY,
who are bastards, II, 150.
adulterine, how proved, 150, n.
when parents are competent witnesses, 151.
period of gestation, 152.
J
IKDBX. 511
BASTARDY, continued.
may be shown by proving marriage void, II. 153.
parents divorced, 153.
may not be shown by proving marriage voidable^ 153.
when legitimacy will be presumed, 153.
BEGINNING AND REPLY,
who are entitled to it, I. 75.
whether affected by proof of damages, 75, 76«
BELIEF,
grounds of, I. 7- 12.
of handwriting, 575.
(See Experts, Witnesses.)
BENTHAM, JEREMY,
character of his legal writings, 1. 435, n.
BIBLE,
•family record in, when evidence, I. 104.
BIGAMY,
proof of by second wife, I. 339.
(See Polygamy.)
BILL IN EQUITY,
how far its statements are evidence against plaintiflT, 1. 212.
its structure. III. 274.
when evidence for the plaintiff, 276.
when evidence against the plaintiff, 274, 275.
(See Equity.)
BILLS OF EXCHANGE, AND PROMISSORY NOTES,
parties to, when incompetent to impeach, I. 383 - 385,
(See Witnesses.)
by what law governed, II. 153, d.
varieties of liability and remedies upon, 154.
material allegations in actions upon, 155.
must be pleaded according to their legal effect, 14, 15.
forms of declarations upon, 155, n.
(1.) existence of the instrument, proof of, 156.
when lost, 156.
when made by partner, 167.
what further must be shown under the general issue, 156.
signature of the instrument, proof of, 158, 159, 162.
when dispensed with, 159.
identity of the instrument, what is descriptive of, 160.
of parties to the instrument, proof of, 158, 160.
currency, when value of to be proved, 160.
512 INDEX.
JBILLS OF EXCHANGE, AND PROMISSORY NOTES, eontimted.
usances, when to be proved, II. 160.
acceptance, when not necessary to be proved, 160.
(2.) proof that defendant is a party to the instrument, 161.
by his acceptance, 161.
by his promise to accept a non-existing bill, 161, n.
proof that defendant is a party by testimony of other pQrtie&,
when, 161.
(3.) plaintiff *s interest, or title to sue, must be proved, 163.
when admitted by acts of defendant, 164.
limitation of such admissions, 165.
admission of procuration, what is, 164.
of indorsements, what is, 165.
• indorsements, what must be alleged and proved, 166.
partnership, when to be proved, 167.
indorsement in blank, effect of, 168.
action by drawer v. acceptor, evidence in, 169.
indorser v. acceptor, 169.
accommodation acceptor v. drawer, 170.
other actions founded on return of bill, evidence in, 1G9.
Consideration, when impeachable, 171 - 173.
(4.) plaintiff must prove breach of contract by defendant, 174.
presentment, when, 174 ~ 176, 186 a.
presentment, when not excused, 177.
at what time to he made, 178, 179, 181,
at what place, 180, 180 a.
presentment, when provable by entries, 182.
protest, when necessary to be proved, 183.
when want of, excused, 184, 196.
when not necessary, 185.
dishonor, notice of, necessary, 186.
due diligence in, a mixed question, 186.
form of notice, and by whom to be given, 186.
when to be given, 186, 187.
when sent by post, 187.
when plaintiff must prove that it was receivedi 187.
by agent or banker, 187 a.
when agent or banker treated as holder, 187 a.
where parties reside in the same town, 188.
variance in, what, 189.
when waived, 190, 190 a.
when not, 190.
INDEX. 513
BILLS OF EXCHANGE AND PROMISSORY NOTES, continued.
knowledge of the fact, sufficieDt, II. 190 n.
probability of the fact, not, 190 n.
by letter, how proved, 191, 193. ^
notice to produce, 1^1, 192.
to what place to be sent, 194.
want of notice of, when excused, 195, 196.
in case of banker^s checks, 195 a.
excuse need not be averred, 197.
defences to actions on, 198 - 202.
by impeaching consideration, 199.
by other equities between original parties, 200.
by matter in discharge of acceptor, 201.
of other parties, 201.
by matter in discharge of parties collaterally liable, 202.
by new agreement, 202.
competency of parties to, as witnesses, 203.
drawer, 203.
partner, 203.
maker, 204.
acceptor or drawee, 205.
payee, 206.
indorser, 207.
BIRTH,
proof of, I. 104, 116,493.
BISHOPS REGISTER,
inspection of, I. 474.
nature of, 483, 484.
(See Public Books.)
BLANK,
in an instrument, when and by whom it may be filled, I. 567,
568, 568 a.
BLASPHEMY,
what, III. 68.
indictment for, 68 n.
proof of, 70.
BOND. (See Private WrUings.)
BOOKS,
of science, not admissible in evidence, I. 440, n.
shop, when and how far admissible in evidence, 1 17.
of third persons, when and why admissible, 115-117, 120,
151 - 154.
(See Hearsay.)
514 INDEX.
BOOKS, continued,
office books, corporation books, &c., I. 474-476, 493-495.
(See Public Records and Documents.)
BOUNDARY,
surveyor's marks provable by parol, I. 94.
when provable by reputation, 145, n.
rules of construction as to, 301, n.
BRIBERY,
what. III. 71.
indictment for, 71 n.
completed by the offer, 72.
not purged by refusal to act as promised, 72.
by corrupting a voter, how proved, 73.
BURDEN OF PROOF, I. 74 - 81. (See Onus Prohandu)
BURGLARY,
what. III. 74.
night time essential, 75.
breaking, actual, 76.
constructive, 76, 77.
entry, what is, 78.
into a mansion house, 79, 80.
inhabited^ 79.
ownership of house, 81.
proof of intent, 82.
fact of breaking, 83.
time of breaking, 83.
C.
CANCELLATION. (See Deed. Will)
CAPTAIN. (See Shipmaster.)
CARRIER,
when admissible as a witness, I. 416.
liability of, and remedies against, II. 208.
forms of declaration against, 210 n.
(1.) contract, proof of, 209.
when it must be proved in tort^ 214.
termini and variance, 209.
proper parties to the suit, 212.
common, proof of contract supplied by law, 210.
who are such, 211.
(2.) delivery of goods, proof of, 213.
INDEX. 515
CARRIER, continued.
(3.) loss or non-delivery of goods, proof of, II. 213.
when plaintiflf's oath admissible, 213.
proof of joint interest in assumpsit ^ 214.
in tarty 214.
whether carrier may restrict his own liability, 215.
notice by, burden of proving, 216.
when by advertisement, proof of, 216.
when several and different notices, 217.
effect of, how avoided, 218.
waiver of, 218.
negligence, <Sz;c., on whom is the burden of proof, 218.
private, excused by accident, 219.
common, what excuses, 219.
when excused by act of plaintiff, 220.
. of passengers, liabilities of as to pel^sons, 221.
as to luggage, 221, n.
liable only for negligence, 222.
of passengers, burden of proof on, 222.
breaking of coach presumptive proof of negligence, 222.
when not bound to receive or convey, 222 a.
CASE, action upon the^
distinction between trespass and case, U. 224.
lies for injuries to relative rights, 225.
when trespass or case lies, 225.
whether case lies for injuries to absolute rights with force, 226.
proof of joint interest in plaintiffs, 227.
joint liability in defendants, when, 228.
allegation of time, when material to be proved, 229.
malice and negligence, proof of, 230.
misrepresentation, 230 a.
for injury to real property, 230 h.
general issue, evidence under, 231.
damage resulting from want of due care by plaintiff, 231 a.
special pleas, when necessary, 232.
liability of master for servant, 232 a.
CERTIFICATES,
by public officers, in what cases admissible, I. 498.
CERTIORARI,
to remove records, I. 502.
CESTUI QUE TRUST,
when his admissions are evidence against his trustee, I. 180.
616 INDEX.
CHANCERY. (See Bill Answer. Depositions. Equity.)
CHARACTER,
when it is relevant to the issue, I. 54, 55.
when it is. in issue in criminal cases, HI. 25, 26.
of person Injured, 27.
of prosecutrix for rape, 214.
CHEATING,
what constitutes this crime, III. 84.
indictment for, 84.
hy false weights, tokens, dsc, 86.
proof of this crime, 84, 87, 88.
CHILDREN,
competency of, as witnesses, I. 367.
CIRCUMSTANTIAL EVIDENCE., (See Evidence. Presumption.)
. CLERGYMEN,
generally bound to disblose confessions made to them, 1. 229, 247.
CLERK,
of attorney, when not compellable to testify, I. 239.
COHABITATION,
when presumptive evidence of legitimacy of issue, L 82.
COLLATERAL FACTS,
what, and when excluded, I 52, 443.
. COLOR,
when a material averment, I. 65.
COMMISSION,
to take testimony, L 320.
COMMITMENT,
proved by calendar, I. 493.
COMMON,
customary right of, provable by reputation, 1. 128, 131, 137, c,
405.
COMMONER,
when a competent witness, I. 405.
COMPARISON OF HANDWRITINGS. (See Private Writings.)
COMPETENCY. (See Husband and Wife. Witnesses.)
COMPROMISE,
offer of, not an admission, L 192.
CONDEMNATION. (See Records and Judicial Proceedings.)
CONFESSION OF GUILT,
difference between confesssio juris and confessio facti^ I. 96.
to be received with great caution, 214.
judicial, conclusive, 216.
INDEX. 517
CONFESSION OF GUILT, continued.
extrajudicial, not conclusive, without corroborating proof, I. 217.
the whole to be taken together, 218.
must be voluntary, 219, 220.
influence of inducements previously offered must have ceased,
221, 222.
made under inducements offered by officers and magistrates, 222.
by private persons, 223.
made during official examination by magistrate, 224 « 227.
what inducements do not render inadmissible, 229.
by drunken persons admissible, 229.
made under illegal restraint, whether admissible, 230.
when property discovered, in consequence of, 231.
produced, by person confessing guilt, 232.
by one of several jointly guilty, 233.
by agent, 234.
in case of treason, its effect, 235.
CONFIDENTIAL COMMUNICATIONS,
not generally privileged, unless in certain cases, I. 237, 248.
(See Evidence. Privileged Communications,)
CONFIRMATION,
of testimony of accomplices when required, I. 380, 381, 382.
CONSENT,
wheii implied from silence, I. 197, 198, 199.
CONSENT AND SUBMISSION,
difference between. III. 59, n.
CONSIDERATION,
when the recital of payment of, may be denied, I. 26.
when it must be stated and proved, 66, 67, 68.
when a further consideration may be proved, 285, 304.
when divisible, II. 136.
CONSOLIDATION RULE,
party to, incompetent as a witness, I. 395.
CONSPIRACY,
conspirators bound by each other's acts and declarations, I. 111.
generally not competent witnesses for each other, 407.
who are conspirators. III. 40.
described, 89, 90.
ohjects of the crime, 90.
its essence^ 91.
mode of proof, 92, 93.
VOL. III. 44
518 iKDics:.
CONSPIRACY^ continued. .
acts of each conspirator admissible against ail, III. 94.
means of accomplishing, when to be alleged and proved, %.
proof of criminal intent, 96.
acquittal or death of one conspirator, its effect, 97.
admissibility of wife of one, 98.
liability of wife to indictment with her husband, 98.
correspondence between conspirators, when admissible, 99.
CONSTABLE,
confessions made under inducements by, inadmissible, 1. 222.
CONSTRUCTION,
defined, I. 277.
CONTEMPT,
in arresting a witness, or preventing his attendance, 1. 316.
CONTRACT,
when presumed, I. 47.
is an entire thing, and must be proved as laid, 66, 11. 196a,26U
CONVEYANCE,
when presumed, I. 6.
CONVEYANCER,
communications to, privileged, I. 241.
CONVICTION,
record of, is the only proper evidence, I. 374, 375.
(See Witnesses,)
COPY,
proof by, when allowed, 1. 91 , 479 - 490, 513 - 520, 559, 571,o
(See Public Records and Documents. Records and Mv^
WrUings.)
COPYRIGHT, II. 510-515.
(See Paients.)
CORONER. (See Officer.)
CORPORATIONS,
their several kinds and natures, I. 331 - 333.
shares in, are personal estate, 270.
CORPORATOR,
when admissible as a witness, I. 331 - 333.
(See Witnesses.)
admissions by, 175, n.
CORPUS DELICTI,
importance of proving it, III. 30.
nn>EX. 519
CORRESPONDENCE,
the whole read, I. 201, n.
(See Letters.)
CORROBORATION. (See Confirmation.)
of answer in chancery, I. 260.
(See Equity.)
CORROBORATIVE EVIDENCE,
what it is, I. 381, n.
COSTS,
liability to, renders incompetent, L 401, 402.
(See Witnesses.)
COTRESPASSER,
when admissible as a witness, I. 357, 359.
(See Witnesses.)
COUNSEL, I. 237 -246.
(See Privileged Communicatiahs.)
COUNT,
when several and when not, II. 105, n.
COUNTERPART,
if any, must be accounted for, before secondary evidence is ad
mitted, I. 558.
COURTS MARTIAL,
Proceedings in. III. 468 - 475.
Martial law, 468, 469.
Military law, 4fi8, 469.
jurisdiction, 470.
criminal nature of, 471.
accusation, 472.
charge and specification, 472.
answer, 473.
pleas, 473.
Judge Advocate, 474.
Courts of Inquiry, 476*
Evidence,
1. general rules, 476 - 484.
as to relevancy, 476.
character, 477.
opinions, 478.
strangers, 479.
substance of issue, 480.
time and place, 481.
best evidence, 482.
520 INDEX.
COURTS MARTIAL, continued.
exceptions to this rule, III. 483.
official character, 483.
2. attendance of witnesses^
military persons, 485.
not military, 485.
how sworn, 486.
3. competency of witnesses.^
the prosecutor, 487.
persons infamous, 488.
interested, 488.
deficient in mind, 488.
deserters, 488.
joint fellow prisoners, 489.
4. examination of ivitnesses^
in open court, 490.
apart from each other, 491.
in writing, 492.
hy the court, sua motu, 493.
5. depositions^
not generally allowed, 495.
admitted in cases not capital, 495.
how taken, 496.
6. writings^
report of a Court of Inquiry, 498.
records of Courts Martial, 499.
general orders, 499.
» articles of war, 499.
should be recorded in the proceedings, 500.
private letters, 501.
COVENANT,
effect of alterations upon, I. 564 - 568.
(See Private Writings,)
declarations in, II. 239, n., 240, n., 242, n., 243, n., 245^ n.
no general issue in, 233.
proof of the instrument, 234.
performance of condition precedent, 235.
breach of covenant, 236, 237.
of indemnity, 236.
breach to be substantially proved, 237.
notice, when necessary, 238.
against defendant, as assignee of covenantor, 239.
INDBX. 521
COVENANT, continued.
defences by, II. 239.
by plaintiff, as assignee, evidence by, 240.
real, what are such, 240. ^
who may sue thereon, 240.
of seisin, what is a breach of, 241.
of freedom from encumbrance, breach of, 242.
for quiet enjoyment, breach of, 243.
of warranty, breach of, 244.
against assigning and under-letting, breach of, 245.
to repair, breach of, 245 a.
plea of non est factum^ effect of, 246.
evidence under, 246.
plea of performance, who mmt prove, 247.
COVERTURE. (See Husband and Wife.)
CREDIT OF MTITNESSES,
mode of impeaching, I. 461 - 469.
restoring, 467.
(See Witnesses.)
CREDITOR,
when competent as a witness, I. 392.
CRIME,
defined. III. 1.
attempt to commit, 2.
persons capable of committing, 3.
infants, 4, 9.
insane persons, 6, 9.
femes covert, 7.
persons under duress, 8. ^
idiots and lunatics, 9.
how to be set forth in indictment, 10.
not excused by ignorance of law, 20.
when excused by ignorance of fact, 21.
what crimes render incompetent, I. 373, 374.
(See Witnesses.)
CRIMEN FALSI,
what, 37a
(See Witnesses.)
CRIMINAL CONVERSATION, actum for,
letters of wife to husband admissible, I. 102.
wife competent to prove, 344.
(See Adultery. Marriage.)
44*
522 INDEX.
CROSS-EXAMINATION,
of witnesses, I. 445 - 467.
(See Witnesses.)
CURTESY^
tenant by, a competent witness for the heir, I. 389.
CUSTODY,
proper, what, I. 142.
CUSTOM AND USAGE,
how proved, L 128 - 139.
by what witness, 405.
(See Hearsay,)
what, II. 248.
its difference from Prescription, 248.
local, who is competent to prove, 249.
usage, who is competent to prove, 249.
local, how proved, 250.
usage, what and how proved, 251.
and usage must both be proved by evidence of facts only, 258.
by what witnesses, 252.
usage founded on foreign laws, how proved, 252.
proof of, one witness not enough, 252.
(See Prescription,)
CUSTOM-HOUSE,
books, inspection of, I. 475.
(See Public Books.)
D.
DAMAGES,
proof of, I. 75.
when unliquidated, 76.
what, and when given, II. 253.
vindictive or exemplary, 253, n.
general and special, defined, 254.
to be assessed by the Jury, 255.
nominal, when plaintiff may take judgment for, 254, 255.
the natural and proximate cause of the wrongful act, 256, 635.
liquidated, by whom to be proved, 257.
what are such, 258, 259.
proof of, not confined to number and value alleged, 260.
may be assessed beyond alleged value, 260.
not beyond ad damnum^ 260.
INDEX, 523
DAMAGES, continued.
measure of, general rule, II. 253, n., 261.
when no particular sum or quantity is proved, 255,
on bills of exchange, 261.
on contracts to deliver goods, 261.
to replace stock, 261.
to convey land, 261, n.
for labor and service, 261, 261 a.
where not prevented by plaintiff, 261.
on breach of warranty of goods, 262.
in debt on bond, 263.
measure of, whether beyond the penalty and interest, 257, n., 263.
on covenants of title, 264. -
of warranty, 264.
ordinarily measured by the actual injury, 253, n., 265.
exceptions to this rule, 265.
aggravated and mitigated, when, 266.
in actions for injuries to the person, 267.
in actions for injuries to the reputation, 267, 269.
proof of, how restricted, 268.
to what time computed, 268 a.
when costs may be included, 268 a.
prospeyctive, when allowed, 268 h,
when and how far affected by the character and rank of the par-
ties, 269.
whether affected by intention of the party, 230 a, 270, 272.
when dependent wholly on the intention, 271.
when increased by bad intention, 272.
evidence in mitigation of, 272, 458, 625.
when excluded, 274.
in aggravation of, 273.
in case for nuisance, 474.
for seduction, 577 a.
in slander, 275.
in trespass, 635 a.
in trover, 276, 649.
in violation of patents, 496, n.
for waste, 650.
against several for a joint torty 277.
severally assessed, election de melioribus damnis^ 277.
alia enormia^ evidence under the allegation, 278.
524 INDEX.
DATE,
when essential to be proved, 11. 12, 13, 160.
when reckoned inclusive, 489, n«
DEAF AND DUMB,
competent witness, 1, 366.
DEATH,
when presumed, I. 29, 30, 35, 41.
proof of, 550.
amount of proof required in different cases, in generaly IL 278 a.
proof of, in what cases usually required, 278.^.
direct proof of, 278 c,
indirect proof, 278 d.
by documents, 278 d,
identity of person, proof of, 278 d.
indirect oral evidence of, 278 e.
burden of proof, 278 e.
presumption of life, 278 e,
of death, 278/
diligent inquiry necessary, 278 /.
proof of, by family conduct, 278 g.
by reputation in the family, 278 g.
amount of proof required in actions for possessicm of tbe
realty, 278 h,
personalty, 278 A.
DEBT,
when it lies, 11. 279.
forms of declarations in, 279.
plea of non est factum^ evidence under, 279, 292.
nil debet, 280, 281, 281 a, 282, 287.
nil luibuit in tenementis, 281.
statute of Limitations, 282.
former recovery, 282.
for a penalty, proof in support of, 283, 284.
proof in defence, 285.
for bribery at an election, proof in support of, 286.
proof in defence, 287.
for an escape, 288.
assignment of breaches on record, 289.
plea of solvit ad diem, evidence under, 290, 291.
solvit post diem, 290, 291.
parol proof of, 291 a.
INDEX. 525
DECLARATIONS. (See Admissions. Hearsay.)
DECREES IN CHANCERY,
proof of, 1.511.
their admissibility and effect, 550, 551.
DEDICATION. (See Way.)
DEED,
when presumed, I. 46.
how to be set out in pleading, 69.
cancellation of, when it devests the estate, 265.
delivery of, 568 a., n.
how far put in issue by plea of non estfactunif II. 293.
proof of, in what it consists, 294.
how proved, 294.
proof of signing, 295.
of sealing, 296.
of delivery, 297.
foreign authentication, 298.
acknowledgment, 298.
plea of non est factum^ what may be shown under by defend-
ant, 300.
burden of proof when on plaintiff, 300.
on defendant, 300.
DEFAULT,
judgment by, its effect on admissibility of the party as a witness
for co-defendants, I. 355, 356, 357.
DEMAND,
when necessary to be proved, II. 174 - 176.
DEMURRER,
in Chancery, effect of, I. 551.
DEPOSIT,
of money, to restore competency of witness, 1. 430.
DEPOSITIONS,
not admissible in criminal cases. III. 11.
of witnesses subsequently interested, whether admissible, I. 167,
168.
of witnesses residing abroad, when and how taken, 320.
sick, &c., 320, 321.
in general, manner of taking, 321 - 324.
in perpetuam^ 324, 325, 552, III. 325.
taken in chancery, how proved, to be read at law, I. 552, 553.
mode of taking in chancery, III. 319 - 324.
in chancery, when read by consent, extent of the admission, 326.
526 INDEX.
DEPOSITIONS, contintud.
of party, when admissible, III. 326.
taken in another suit, when admissible, 326.
taken in a cross-cause, 342.
taken in exchequer, when admissible in chancery, 343.
foreign, I. 552.
to be read in another action, complete identity of parte not
requisite, 553, 554, III. 341 - 343.
power of cross-examination requisite, L 554.
when admissible against strangers, 555.
(See Equity. Witnesses.)
DESCRIPTION,
what is matter of, I. 56 - 72.
in general, 56 - 64.
in criminal cases, 65.
in contracts, 66 - 68.
in deeds, 68, 69.
in records, 70.
in prescription, 71.
DEVISE,
must be ih writing, I. 272.
admissibility of parol evidence to explain, 267, 289-291.
(See Wills.)
DIPLOMA,
of physician, when necessary to be shown, L 195, n.
DISCHARGE,
of written contract, by parol, I. 302 - 304.
DISFRANCfflSEMENT,
of a corporator, to render him a competent witness, 1. 430.
DISPARAGEMENT OF TITLE,
declarations in, L 109.
DIVORCE,
foreign sentence of, its effect, I. 544, 545.
DOMICIL,
declarations as to, I. 108.
DOWER,
tenant in, a competent witness for heir, I. 389.
DRIVER,
of carriage, when incompetent as a witness, L 396.
DRUNKENNESS, II. 171, n., 300, 374.
how far it excuses crime. III. 6, 148.
INDEX. 527
DUCES TECUM,
subpcena, I. 414, 558, III. 305.
(See Equity. PHveUe Writings, Witnesses.)
DUPLICATE,
must be accounted for, before secondary proof admitted, I. 558.
DURESS,
admissions made under, I. 193.
what, II. 301.
per minas^ 301.
of imprisonment, 302.
money paid by, 121.
DWELLING HOUSE,
what is meant by the term in a charge of arson, III. 52.
DYING DECLARATIONS,
when admissible, I. 156, 162, 346, lU. 236.
E.
ECCLESIASTICAL COURTS,
number of witnesses required in, I. 260, a. n.
what parts of their jurisdiction known here, 518, 559.
proceedings in, how proved, &c., 510, 518.
their efiect, 550.
EJECTMENT,
defendant in, when a competent witness, I. 360.
nature of, and ground of recovery in, II. 303.
points to be proved by plaintiff, 304.
title of plaintiff, when not necessary to be proved, 305.
who are estopped to deny it, 305.
proof of by payment of rent, 306.
when both parties claim under the same, 307.
possession of the lands by defendant, proof of, 308.
title of heir or devisee, proof of pedigree and descent, 309.
seisin of ancestor, 310, 311.
entry, by whom made, 312.
title of remainderman, &c., proof of, 313.
legatee of term of years, proof of, 314.
executor or administrator, proof of, 315.
guardian, 315.
purchaser under sheriff ^s sale, 316.
title by a joint demise, 317.
by several devises,. 317.
when proved to be to part only of the land, 317.
528 INDEX.
EJECTMENT, continued.
ouster of one tenant in common, by another, II. 318.
by landlord against tenant, plaintiff must prove tenancy deter-
minedy 319.
by lapse of time, 320.
by notice to quit, 321.
service of notice, 322, 324.
form of notice, 323.
notice, when not necessary, 325.
when waived, 325.
by forfeiture, 326.
for non-payment of rent, 326.
for other breach, 327.
for under-letting, 328.
between mortgagee and mortgagor, 329.
defence of mortgagor, by proof of payment, 330.
usury, 330.
what .may be shown in defence of this action, 331.
damages in, 332.
trespass for mesne profits, plaintiff must prove the judgment, 333.
defendant's entry, 333.
his own possession, 334.
defendant's occupancy, 335.
what damages plaintiff may recover, 336.
lasting improvements, remedy of defendant for, 337.
other defences in, 337.
(See Real Actions.)
EMBRACERY,
what, III. 100.
indictment for, 100, n.
proof of, 101.
ENROLMENT,
of deeds, I. 573, n.
ENTRIES,
by third persons, when and why admissible, I. 115- 117, 120,
151 - 155.
(See Hearsay.)
EQUITY,
Proceedings in, III. 256 - 259.
trials by jury in, 260 -266.
diversities of practice, 267.
IKDBX. 629
EQUITY, continued.
modern English practice, IIL 267, n.
structure of bill, 274.
Evidence t»,
generally same as at law, 250.
wherein differing, 250, 251, 253, 254.
objections to mode of taking, 252.
burden of proof, 253.
fraud sometimes presumed, 254.
facts, when presumed, 272.
of conversations not expressly charged in bill or answer,
323, n.
of facts not specifically alleged, 356.
when admissible, 357.
1. thinge judicially noticed, 269 "212.
2. admissions^
in hUl^ evidence against the plaintiff, 274, 275.
for the plaintiff, 276.
in answer, how far evidence, 277 - 282.
(See Answer.)
judicial, in Equity, 292.
strictly interpreted, 293.
contrary to law, not allowed, 294.
oral, when provable in Equity, 323, n.
in answcTy when evidence against the defendant, 277.
of infant, 278, 279, 280.
of husband and wife, 278.
of wife alone, 278.
what parts to be read in evidence, 281.
ihanner of statement material, 282.
of one defendant, whether evidence against another,
283.
for another, 283.
when evidence in defendant's favor, 284, 285.
nature of answer, 284.
test of its responsive character, 285.
not sworn to, its effect, 286.
limitations of its general admissibility in defendant's
favor, 287.
how far regarded as mere pleading, 284, 287.
when taken as true, though not responsive, 288.
its effect as evidence, 289.
VOL. III. 45
530 INDEX.
EQUITY, continued.
2. admissions^
in answer >, continued,
what proof necessary to outweigh it, III. 289.
statute provisions on this subject, 289, n.
effect in evidence for defendant limited to respoosife
parts, 290.
different rule at Law, 290.
to bill of discovery, 291.
3. documents^
production of, 295-297.
right to call for, 298.
referred to in the answer, 299.
not referred to, 299.
privileged, in what cases, 300.
where to be produced, 301.
produced by cross-bill, 302, 303.
cross-bill not necessary for, in U. States, 304.
State practice as to production, 304, n.
when in hands of a third person, how produced, 30b.
proof of execution, 306, 308.
rights of parties obtaining production, 307.
may inspect and take copies, 307.
admission of genuineness, mode of compelling, 306, n.
proved by depositions, 308.
or viva voce^ 309.
mode of examination viva voce^ in Equity, 310.
formal proof of, gives no right of inspection, 311.
4. witnesses^
competency of, 313.
co-plaintiff*, 314.
nominal plaintiff*, 314.
. defendant, for plaintiff*, 315.
eff*ect of plaintiff's examining defendant, 316.
competency of plaintiff for defendant, 317.
co-defendants, 318.
depositionSy
mode of taking, 319-324.
in perpettuwiy 325.
read by consent, extent of admission, 326.
of party, when admissible, 326.
taken in another 'suit, 326.
INDEX. 531
EQUITY, continued.
4. toitnessesy
depositions^ continued.
taken in a cross-cause, III. 342.
in Exchequer, 343.
when suppressed, 349 - 351.
amendment of, 352.
5. inspection in aid of proof y
when admitted in Equity, 328, 829.
6. farther information or proof
when required by the Court in Equity, 330 - 339.
by evidence viva voce^ 331.
by reference to a Master, 332.
authority of the Master, 333 - 336.
(See Master in Chancery.)
by a feigned issue, 337 - 339.
7. evidence allowed on special orders
in what cases, 340 - 348.
proceedings, papers, and depositions in another cause, 341.
depositions in a cross cause, 342.
taken in the Exchequer, 343.
or in Admiralty, 343.
of parties, 344.
of interested persons, 344.
in taking an account, 344.
to supply omissions, 345.
to correct mistakes, 345, 346, 347.
to impeach credit, 348.
Exclusion of Evidence^
1. suppression of depositions ^ 349 - 352.
for leading interrogatories, 350.
scandal and impertinence, 350.
irregularity, 351.
unfinished examination, 352.
2. objections at the hearings 353 - 369.
what are admissible, 353.
to outweigh the answer, 354.
irrelevancy of proofs, 355 -557.
not the best evidence, 359.
incompetency of witness, 368, 369.
Parol Evidence^
admissible to reform writings, 360 - 364*
532 IKDBX.
EQUITY, continued.
Parol Evidence^ continued,
to raise a trust, III. 365.
to rebut a presumption, 366, 367.
(See Parol Evidence,)
Weight of Evidence^
1. admissions in pleadings^ 370, 373, 374.
oath of accounting party, 371, 372.
2. testimony of toitnesses^ 375 - 378.
3. affidavits, 379 - 385.
their requisites, 380.
their office, 381.
how sworn, 382, 383.
where taken, 383.
their efiect, 384, 385.
ERASURE. (See Alterations. Private Writings.)
ESTOPPEL,
principle and nature of, I. 22, 23, n., 204-210.
by deed, who are estopped, and in what cases, 24, 25, 211.
as to what recitals, 26*
en pais, 207.
(See Admissions.)
EVIDENCE,
definition, I. 1.
moral, what, 1.
competent, 2.
satisfactory and sufficient, 2.
direct and circumstantial, 13.
presumptive, (See Presumptions.)
relevancy of, 49 - 55.
general rules governing production of, 50.
must correspond with the allegations and be confined to the
issue, 51*
of knowledge and intention, when material, 53.
of character, when material to the issue, 54, 55.
(See Character,)
proof of substance of issue is sufficient, 56 - 73.
rules of, the same in criminal as in civil cases, 65.
the best always is required, 82.
what is meant by best evidence, 82.
primary, and secondary, what, 84.
secondary, whether any degrees in, 84, n.
INDEX. 533
EVIDENCE, continued.
oral, not to be substituted for written, where the law requires
writing, I. 86.
for written contract, 87.
for any writing material to the controversy, 88.
unless collateral, 89.
for written declaration in extremis ^ 161.
when it may be given, though a writing exists, SO.
exceptions to the rule which rejects secondary evidence in
1. case of public records, 91.
2. official appointments, 92.
3. result of voluminous facts, accounts, &c., 93.
4. inscriptions on monuments, d&c, 94, 105.
5. examinations on the voir dire^ 95. .
6. some cases of admission, 96.
7. witness subsequently interested, his former deposition
admissible, 168.
excluded from public policy, what, and when, 236-254.
professional communications, 237 - 248.
proceedings of arbitrators, 249.
secrets of state, 250, 251.
proceedings of grand jurors, 252.
indecent or injurious to the feelings of others, 253, 344.
communications between husband and wife, 254, 334-345.
illegally obtained, still admissible, 254 a.
quantity required in criminal cases. III. 29.
what amount necessary to establish a charge of treason, I. 255,
256, III. 246.
«
to establish a charge of perjury, I. 257.
to overthrow an answer in chancery, 260.
(See Equity,)
in ecclesiastical courts, 260 a. n.
written, when requisite by the statute of frauds, 261 - 274.
instruments of, 307.
oral, what, 308.
corroborative, what, 381, n.
objection to competency of, when to be taken, 421.
foreign rules of, not admissible. III. 28.
suppression, fabrication, and destruction of, 34.
in criminal prosecutions, 1, 248.
in proceedings in Equity, 249 - 385.
in Admiralty and Maritime causes, 386-467.
45 »
534 iin)BX.
EVIDENCE, continued.
in Courts Martial, III. 468 - 501.
at Common Law, how far the same in Equity^ 250.
EXAMINATION,
on crimipal charge, when admissible, I. 224, 227, 228.
signature of prisoner unnecessary, 228.
EXAMINATION IN BANKRUPTCY,
not admissible against the bankrupt, on a criminal charge, I. 226.
EXCHEQUER,
judgments in, when conclusive, I. 525, 541.
EXECUTION,
of deeds, &c., proof of, I. 569, 572.
(See Deed, Equity, Private Writings.)
EXECUTIVE,
acts of, how proved, I. 479.
EXECUTOR,
admissions by, I. 179.
foreign, 544.
EXECUTORS AND ADMINISTRATORS,
profert by, of letters testamentary, II. 338.
character of, how put in* issue, 338.
how controverted, 344.
when they must sue as such, 338.
character of, how proved when plaintiff, 339.
by probate, 339, 343, n.
how rebutted, 339.
by records, 340, 341.
administrator de bonis non^ how proved, 341.
plea of Statute of Limitations, when avoided by new promise to,
342.
de son tort^ when liable as such, 343.
to what extent, 345.
de son tort^ retainer by, 350.
character of, burden of proving, 344.
plea of ne unques executor^ consequence of, 345.
plene administravity proof of assets under, 346.
what is evidence of assets^ 347.
devastavit^ 347 a.
how rebutted, 348.
when this plea is proper, 348, n.
plea of plene administravit^ evidence under, 350.
INDEX. 535
EXECUTORS AND ADMINISTRATORS, eotUinued.
retainer J when it may be claimed, II. 349, 350.
outstanding judgments^ plea of, 351.
debts of higher nature^ plea of, 351.
admissions by one of several executors, effect of, 352.
(See Trover.)
EXEMPLIFICATION,
what, and how obtained, I. 501.
EXPENSES OP WITNESS. (See Witnesses.)
EXPERTS,
who are, I. 440, n.
when their testimony is admissible to decipher writings, 280.
to explain terms of art, 280.
to explain provincialisms, &c., 280.
to what matters they may give opinions, 440, 576, 580, n.
EXTORTION,
money obtained by, II. 121.
F.
FACTOR, (See Agent.)
FAMILY,
recognition by, in proof of pedigree, I. 103, 104, 134.
(See Hearsay. Pedigree.)
FEIGNED ISSUE,
when it may be ordered. III. 337.
on what terms, 337.
whether parties may be examined, 338.
course of proceeding, 339. i
FELONY,
conviction of, incapacitates witnesses, I. 373.
(See Witnesses,)
FIXTURES,
what are, I. 271.
FLEET BOOKS. (See Public Books.)
FORCIBLE ENTRY,
tenant incompetent as a witness, I. 403.
(See Witnesses.)
FORCIBLE MARRIAGE,
wife competent to prove, I. 343.
FOREIGN COURTS. (See Public Records and Documents. Re-
cords and Judicial Writings.)
536 INDEX.
FOREIGN JUDGMENTS,
of infamy, do not go to the competency, I. 376.
proof of, 514.
in rem^ effect of, 543 - 545.
in personam^ 545 * 549.
(See Records and Judicial Writings,)
FOREIGN LAWS,
proof of, I. 486, 488.
(See Public Records and Documents.)
FOREIGN STATES. (See Judicial Notice. Public Records
and Documents. Records, and Judicial Writings.)
FORGERY,
conviction of, incapacitates witness, L 373, 374.
party whose name is forged, when competent, 414.
(See Private Writings.)
punishable by statutes, III. 102.
defined, 103.
in what cases it may be committed, 103.
essentials of, 103.
indictment for, 104. i
proof of, generally, 104.
resemblance, 105.
falsity, 106.
writing must be produced, 107.
variance in, 108.
false personation, 109.
representation, 109.
fictitious name, 109.
proof of uttering, 110.
guilty knowledge, 111.
place of committing, 112.
existence of bank^ 113.
office of president, 113.
FORMER JUDGMENT,
when a good bar. III. 35, 36.
how pleaded, 36.
how proved, 36.
how rebutted, or answered, 38.
FRAUD,
general presumption against, I. 34, 35, 80.
when presumed in Equity, III. 254.
(See Presumptions. Equity.)
INDEX. 537
FRAUDS,
statute of, T. 262 - 274.
(See Equity. Writings.)
G.
GAME LAWS,
want of qualifications under, must be proved by the affirmant,
1.78.
(GAZETTE,
in what cases admissjjblO) I* 492.
(See Public Records and Docmnenis.)
GOVERNMENT, •
acts of, how proved, I. 383, 478, 491, 492.
(See Admiralty, 6ec. Fuhlic Records and Documents,)
GOVERNOR,
of a State or Province, when not bound to testify, I. 251.
provincial, communications from, privileged, 251.
(See Privileged Communications,)
GRAND JURY,
transactions before, how far privileged, I. 252.
(See Privileged Communications,)
GRANT,
when presumed, I. 45.
conclusively, 17.
GUARDIAN,
admission by, I. 179.
GUILTY POSSESSION,
what. III. 31.
evidence of, I. 34, 35, III. 31, 32, 33, 57.
H.
HABEAS CORPUS,
ad testificandum^ I. 312.
(See Witnesses.)
HANDWRITING,
attorney competent to prove client's writings, I. 242.
proof of, in general, 576 - 581.
(See Private Writings.)
HEARSAY,
what it is, I. 99, 100.
what is not hearsay
information, upon which one has acted, 101.
538 , INDEX.
HEARSAY, continued.
conversation of one whose sanity is questioned, I. 101.
answers given to inquiries for information, 101, 574.
general reputation, 101.
expressions of bodily or mental feelings, 102.
complaints of injury, recenii facto ^ 102.
declarations of family, as to pedigree, 103, 104, 134.
inscriptions, 105.
declarations accompanying and qualifying an act done, 106.
109.
in disparagement of title, 109.
of other conspirators, 111.
of partners, 112.
of agents, 113, 114.
entries by third persons, 115-117, 120.
indorsements of partial payment, 121, 122.
when and on what principle hearsay is rejected, 124, 125.
when admissible, by way of exception to the rule,
1. in matters of public and general interest, 128 - 140.
restricted to declarations of persons since dead, 130.
and concerning ancient rights, 130.
ante litem motam^ 131 - 134.
situation of the declarant, 135.
why rejected as to private rights, 137.
as to particular facts, 138.
includes writings as well as oral declarations, 139.
admissible also against public rights, 140.
2. in matters of ancient possessions, 141 - 146.
boundaries, when, 145, n.
perambulations, 146.
3. declarations against interest, 147 - 155.
books of bailiffs and receivers , 150.
private persons, 150.
the rule includes all the facts related in the entry, 152.
the party must have been a competent witness, 153.
in entries by agents, agency must be proved, 154.
books of deceased rectors, &c. 155.
4. dying declarations, 156-162.
principle of admission, 156-158.
declarant must have been competent to testify, 159.
circumstances must be shown to the court, 160.
if written, writing must be produced, 161.
INDEX. 539
HEARSAY, continued.
weakness of this evidence, 1. 162.
of husband or wife, when admissible against the other,
345, 346.
5. testimony of witnesses since deceased, 163 - 166.
whether extended to case of witness, sick or abroad,
163, n.
must have been a right to cross-examine, 164.
the precise words need not be proved, 165.
may be proved by any competent witness, 166.
witness subsequently interested, 167, 168.
declarations and replies of persons referred to, admissible, 182.
of interpreters, 183.
HEATHEN,
not incompetent as a witness, and how sworn, I. 371.
HEIR,
apparent, a competent witness for ancestor, 1. 390.
when competent as witness, 392.
proof of heirship, IL 354.
death of ancestor, 355.
liability of, 356 - 358.
plea of riens per descent^ 359.
proof of assets, 360.
by lands in a foreign State, 361.
HERALD'S BOOKS,
when admissible, 1. 105, n.
HIGHWAY,
judgment for non-repair of, when admissible in favor of other
defendants, I. 534.
(See Way.)
HISTORY,
public, when admissible, 1. 497.
HOMICIDE,
when malice presumed from, I. 34.
what, III. 1 14.
justifiable^ when, 115.
excusable^ vfhen^ 116, 117.
ancient distinction between, 118.
felonious^ when, 119;
manslaughter^ defined, 119.
indictment for, 120.
voluntary, 121.
540
INDEX.
HOMICIDE, continued.
manslaughter^ involuntary, IIL 121.
proof of, 121.
upon provocation, without malice, 122, 124, 125.
in execution of propess, 123.
upon provocation, with malice, 126.
rebutting proof, 127.
involuntary manslaughter, 128.
by unlawful act, 126.
by lawful act, 129.
murder^ what, 130.
indictment for, 130.
proof of death, 131, 132, 133.
its unlawfulness, 134.
by poison, 135.
infanticide, 136.
by the prisoner, 137.
or his procurement, 138.
by wound not mortal, 139.
identification of mutilated remains, 133.
mode of killing, 140.
allegation to be substantially proved, 140.
variance in proof of the cause of death, 141.
by compulsion of the deceased to do the mortal act, 142.
proof of place of the crime, 143.
time, 143.
malice, what, 14, n., 144.
proof of, 144, 147.
express, 145.
implied, 14, 145, 146, 147.
when negatived by drunkenness, 148.
HONORARY OBLIGATION,
does not incapacitate witness, I. 388.
HOUSE. (See Legislature,)
HUSBAND AND WIFE,
intercourse between, when presumed, I. 28.
coercion of wife by husband, when presumed, 28.
admissions by wife, when good against husband, 185.
communications inter sese, privileged, 254, 334.
no matter when the relation begun or ended, 336.
wife competent witness after husband's death, when, 338.
none but lawful wife incompetent as witness, 339.
INDEX. 541
HUSBAND AND WIFE, continued.
whether husband^s coosent removes incompetency, 1. 340.
rule applies when husband is interested, 341, 407.
competent witness in collateral proceedings, 342.
exceptions to the rule in favor of wife, 343, 344.
ruld extends to cases of treason, semh, 345.
wife not competent witness for joint conspirators with her hus-
^ band, 407.
when they may be acqcssories to each other, III. 48.
I.
IDENTITY,
proof of, when requisite, I. 381, 493, 575, 577, II. 50,278 d.
by attorney, I. 245.
of person, proof of, when requisite, II. 50, 278 d.
of close, 625.
IDIOT,
incompetent as a witness, I. 365.
IGNORANCE,
of law, no excuse. III. 20.
of fact, when an excuse, 21.
IMMEDIATELY,
legal meaning of the word. III. 228, n.
INCOMPETENCY. (See Witnesses,)
, INCORPOREAL RIGHTS,
how affected by destruction of deed, 1. 568.
INDEMNITY,
when it restores competency, I. 420.
INDICTMENT,
inspection and copy of, right to, I. 471.
its essential requisites, III. 10, 12.
what is put in issue by plea of not guilty, 12, 30.
when it must state and prove names, 22.
burden of proof of negative averments, 24, n.
against accessories, 49.
for arson, 51.
assault, 58.
barratry, 66.
blasphemy, 68.
embracery, 89, n.
manslaughter, 120.
VOL. III. 46
542 INDEX.
INDICTMENT, tontinued.
for murder, III. 130.
larceny, 151.
libel, 166.
maintenance, 181.
nuisance, 185.
perjury, 189,
polygamy, 204.
robbery, 223.
INDORSEE,
how affected by admissions of indorser, I. 190.
(See Admissions.)
INDORSEMENT,
of part payment, on a bond or note, I. 121, 122.
INDORSER,
when a competent witness, I. 190, 383, 385.
(See Witnesses.)
INDUCEMENT,
when it must be proved, I. 63, n.
INFAMY,
renders a witness incompetent, I. 372 - 376.
how removed, 377, 378.
(See Witnesses.)
INFANCY,
proof of, rests on the party asserting it, I. 81.
(See Onus Probandi.)
burden of proof of, II. 362.
evidence of, 363.
plea of, how avoided, 364.
necessaries, what, 365, 366.
may consist of money lent, 365, n.
evidence of, how rebutted, 366, 367. -
new promise by, *367.
no defence in actions- eo; delicto y 368.
INFERIOR COURTS,
inspection of their records, 1. 473.
proof of their records, 513.
(See Public Records and Documents. Records and Judicial
Writings.)
INFIDEL,
incompetent as a witness, I. 368 - 372.
(See Witnesses.)
INDEX. 543
INFORMER,
competency of as a witness, L 412-415.
(See WUnesses.)
INHABITANT,
admissions by, I. 175.
when competent as a witness, 331.
rated, 331, n.
INNOCENCE,
presumed, I. 34, 35.
(See Presumptions')
INQUISITIONS,
proof of, I. 515.
admissibility and effect of, 556.
INSANITY,
presumed to continue after being once proved to exist, I. 42.
when it is a good defence, or not, in civil cases, II. 369, 370.
in crin^inal casei| 372, III. 6.
how proved, II. 371, 689, III. 5.
what constitutes it, 373. ,
from drunkenness^ when it is a defence, 374.
(See Lunacy.)
INSCRIPTIONS,
provable by secondary evidence, I. 95, 105.
INSOLVENT,
omission of a claim by, in schedule of debts due to him, I. 196.
(See Admissions,)
INSPECTION,
of public records and documents, I. 471 - 478.
(See Public Records and DocumetUs.)
of private writings, 559 - 562.
(See Private Writings.)
INSTANCE COURTS, III. 387.
(See Admiralty f &c.)
INSTRUCTIONS,
to counsel, privileged, I. 240, 241.
(See Privileged Communications.)
INSURANCE,
declaration on marine policy, 11. 376.
proof (1.) of the policy ^ 377.
(2.) interest^ 378 - 381.
legal or equitable, 379.
544 INDEX.
INSURANCE, continued.
proof of interest in the goods, II. 380.
under open or valued policy, 381.
(3.) inception of risfc, 382.
(4.) performance o( conditions ^ 383.
compliance with warranties^ 383, 384.
sailing with convoy^ 384.
(5.) Zow, 385-394.
proximate cause of, 387.
by perils of the sea, 387.
by perils of rivers, 387, n.
by capture, 387, 388.
when voyage licensed, 389.
by barratry, 390.
by stranding, 391.
total or partial, 392.
proved by shipioreck, 392.
by abandonment accepted, %92b
amount of, proved by adjustment, 393.
preliminary proof of, 394.
matters in defence, viz.,
misrepresentation and concealment, 396, 397.
burden of proof, 398.
breach of warranties, 399 - 401.
unseaworthiness, 400, 401.
illegality of voyage, 402.
want of documents, 402.
want of neutrality, 402.
deviation, 403.
against fire, declaration in, 404.
proof of loss, 405.
by lightning without combustion, 405, n.
gross negligence of assured, 405, n.
proof of loss, performance of conditions, 406.
rule of estimation of damages, 407.
defences in, 408.
upon lives, 409.
nature of interest insurable, 409.
INTENT,
when material to be proved. III. 13.
when inferred by law, 13, 14.
evidence of, 15-19.
INBBZ. 545
INTENT, cofUinued.
must be proved as alleged, III. 17.
proof of one, when several are charged, 16.
general intent sufficient, 18.
INTEREST,
of witness, efiect of, when subsequently acquired, I. 167,
418-420.
subsequent, does not exclude his previous deposition in chancery,
168.
whether it does at law, 168.
(See Witnesses. Admiralty^ &c.)
INTERPRETATION,
defined, I. 277.
INTERPRETER,
his declarations, when provable dliufide^ 1. 183.
communications through, when privileged, 239.
INTESTATE,
his declarations admissible against his administrator, I. 189.
(See Admissions.)
ISSUE,
proof of, on whom, I. 74 - 81
(See Onus Prohandi.)
what is sufficient proof of, I. 56 - 73.
(See Allegations. Variance.)
what, II. 3.
how formed, 3, 4.
general and special, 5.
general, in assumpsU^t its extent, 6-8.
in English practice, 8.
in American practice, 8.
substance only to be proved in criminal cases. III. 23.
in murder, 140.
J.
JEOPARDY OF LIFE OR LIMB,
what constitutes. III. 37.
JEW,
how to be sworn, I. 371.
JOINT OBLIGOR,
competency of, I. 395.
46*
546 INDEX.
JOURNALS. (See Legislature.)
JUDGE AND JURY,
their respective provinces, I. 49, 160, 219, 277, n., 365, n., IL
28 a., 186, 442, n., 490, 504, n., 605, 662.
judge, when incompetent as a witness, I. 166, 249^ 364.
his notes, when adniissible, 166.
competency of jurors, 252, 252 a, 363, n.
JUDGMENTS. (See Records and Judicial Writings.)
JUDICIAL NOTICE,
of w}iat things taken at law, I. 4, 5, 6.
in Equity, III. 269, 270, 271.
JURISDICTION,
of foreign courts must be shown, I. 540, 541.
(See Records and Judicial Writings,)
JURY, TRIAL BY,
whether demandable of right in Equity, III. 263 - 266.
K.
KINDRED. (See Family, Hearsay, Pedigree,)
L.
LARCENY,
proof of, from guilty possession, I. 11, 34, III. 31, 32, 33.
(See Presumptions, Guilty Possession,)
definition of, 150.
indictment for, 151.
proof of the place, 152.
time, 152.
value, 153.
chief points to be proved, 154.
caption and asportation, 154.
severance of owner^s possession, 155.
custody by the thief, 155.
restitution no defence, 156.
felonious intent, proof of, 157, 158.
distinction between larceny and trespass or malicious mischief,
157.
delivery of goods by wife of owner, 158.
goods found, 159. •
INDEX. 647
LARCENY, continued.
deposited with prisoner, III. 159, 162.
obtained by stratagem, 160.
proof of ownership, 161.
by bailee of the goods, 162.
bailment, how disproved, 162.
of wild animals, 163.
of things part of the realty, 163.
LAW AND FACT, I. 49. (See Judge and Jury.)
LEADING QUESTIONS,
what, and when permitted, I. 434, 435, 447.
(See Witnesses.)
LEASE,
when it must be by writing, I. 263, 264.
expounded by local custom, when, 294.
LEGAL ESTATE,
conveyance of, when presumed, I. 46.
LEGATEE,
when competent as a witness, I. 392.
LEGISLATURE,
transactions of, how proved, I. 480, 481, 482.
(See Public Records and Documents.)
proceedings in, how far privileged from disclosure, 251, n.
LEGITIMACY,
when presumed, I. 28.
LESSEE,
identity of with lessor, as party to suit, I. 535.
LESSOR,
of plaintiff in ejectment, regarded as the real party, L 535.
LETTERS,
post-marks on, I. 40.
parol evidence of contents of, 87, 88.
proof of by letter-book, 116.
cross-examination as to, 88, 89, 463, 464, 465, 466.
addressed to one alleged to be insane, 101.
written by one conspirator, evidence against others, 111.
of wife to husband, when admissible, 102.
whole correspondence, when it may be read, 201, n.
prior letters, by whom they must be produced, 201, n.
(See Courts Martial. Evidence. Hearsay. Parol Evidence.
Witnesses,)
548 INDEX.
LETTERS ROGATORY,
what, I. 320.
LIABILITY OVER,
its effect on competency of witness, L 393-397.
(See Witnesses.)
LIBEL, in criminal law,
difficulty of defining, III. 164.
definition of, 164, n.
defined by statutes, 165.
indictment for, 166.
when written, proof of, 167.
proof of malice, 168.
publication, 169 - 172.
within the county, 173.
colloquium^ 174.
innuendo^ 175.
when justified by the truth, 176, 177.
what may be proved in defence, 178.
right of Jury, in trials for, 179.
LIBEL AND SLANDER, in civil cases,
to be defined by the Court, and tried by the Jury, II. 411.
declarations in, 410.
points of plaintifif^s proof, 410.
special character, 412.
other prefatory allegations, 413.
publication of words, 414.
by defendant, 415.
by his agents, 415, 416, 1. 36, 284.
points of plaintiff's proof, publication of, when printed, IL 416.
by letters, 416.
colloquium and innuendoes j 417.
malice, 418, 419, 422.
damages, 420.
defence, under the general issue, 421 - 425.
when the truth may be given in evidence, 421.
words spoken in discharge of duty, 421.
in confidence, 421.
in honest belief of their truth, 421.
defence, whole libel to be read, 423.
damages, evidence in mitigation of, 424, 425.
evidence of character, when admissible, 426.
justification of, degree of proof required, 426.
INDEX. 549
LIBEL AND SLANDER, in civil cases, continued.
charging violation of professional confidence, II. 427.
slander of lille, 428.
other special damages, 428.
course of trial, 429.
LICENSE, .
must be shown by the party claiming its protection, I. 79.
proof of, II. 627,643.
LIMITATIONS,
in bar of rights of entry, II. 430.
of action, 431.
avoided by suing out of process, 431.
new suit, after abatement, 432.
time, from period or act computed, 433 - 435.
not arrested when once begun to run, 439.
avoided by showing absence, out of the jurisdiction, 437.
when in case of joint liabilities, 438.
how rebutted, 439.
new promise, 440 - 445.
acknowledgment of indebtment, 440.
what amounts to, 441 - 445.
when not admissible, 446.
merchants^ accounts, what, 447.
fraud in defendant, 448.
LIS MOTA,
what, and its effect, L 131 - 134.
LLOYD'S LIST,
how far admissible against underwriters, I. 198.
LOG-BOOK,
how far admissible, I. 495.
(See AdmiraUy^ 6cc.)
LOSS,
of private writings, proof of, I. 558.
of records, 84, n., 508.
(See Evidence, Private Writings. Records and Judicial
Writings.)
LUNACY,
when presumed to continue, I. 42.
inquisition of, its admissibility and effect, 556.
(See Insanity.)
550 INDEX.
M.
MAGISTRATE,
confessions made to, I. 216, 222, 224, 227.
(See Confessions of GruilL)
MAINTENANCE,
what, in. 180.
indictment for, 181.
proof of, 181.
defence, 182.
buying disputed title, 183.
MALICE,
when presumed, I. 18.
defined. III. 14, n., 144.
evidence of, 15-19, 144, 147, 168.
express, 145.
implied, 14, 15, 145, 146, 147, 168.
whether disproved by proof of drunkenness, 148.
MALICIOUS PROSECUTION,
nature of, and what amounts to, II. 449.
whether it lies against a corporation, 453, n.
action for, proofs by plaintiff, 450 - 456.
proof of the prosecution, 450, 451.
prosecution ended, 452.
malice and want of probable cause, 453.
burden of proof of, 454.
probable cause, what is, 454, 455.
proof by defendant, 457.
damages, 456.
defence in this action, 457.
by proof of plaintiff's bad character, when, 458.
advice of counsel, 459.
. testimony of defendant given before grand jury, admissible in,
I. 352.
judgment of acquittal, when admissible in, 538.
copy of judgment of acquittal, whether plaintiff entitled to, 471.
MALICIOUS SHOOTING,
wife competent to prove, I. 343.
MAPS,
when evidence, I. 139.
MARRIAGE,
nature of the contract of, and when valid, II. 460.
INDEX. 551
MARRIAGE, continued,
modes of proof of, II. 461.
by reputation, I. 107, II. 462.
by admissions of parties, 462.
by conduct, 462.
by written document, 463.
how rebutted, 464.
forcible, wife admissible to prove, I. 343.
second, in case of polygamy, by whom proved, 339.
and time of, included in pedigree, 104.
when presumed, from cohabitation, 27, 207.
foreign sentences as to, effect of, 544, 545.
proof of, 342, 343, 484, 493.
(See Husband and Wife. Polygamy. Public Records and
Documents. Records and Judicial Writings.)
MASTER,
when servant witness for, I. 416.
when not, 396.
when liable, II. 232 a.
(See Case.)
MASTER IN CHANCERY,
subjects of his jurisdiction. III. 332.
his authority, 333.
may examine parties, 333, 335.
witnesses, 333, 334.
call. for books and papers, 333.
rules of proceeding, 335, n.
when he may reexamine witnesses, 336.
MEDICAL WITNESS,
not privileged, I. 248.
may testify to opinions, when, 440.
when not, 441.
MEMORANDUM,
to refresh memory of witness, I. 436-439.
(See Witnesses.)
MISTAKE,
admissions by, effect of, I. 206.
of law apparent in a foreign judgment, effect of, 547, d.
when it excuses. III. 21.
MIXED QUESTIONS, I. 49.
(See Judge and Jury.)
552 INDEX.
MONEY COUNTS,
what evidence is admissible under, II. 112- 125, 129 o-
MONUMENTS. (See Boundary. Inscriptions.)
MURDER,
when malice presumed, I. 18.
(See Homicide.)
N.
NAMES,
when to be stated and proved in indictments, III. 22. .
NAVY OFFICE,
books of, I. 493.
(See Public Records and Documents.)
NEGATIVE,
when and by whom to be proved, I. 78-81.
(See Onics Probandi.)
NOLLE PROSEQUI,
effect of to restore competency, I. 356, 363.
(See Witnesses.)
NON-ACCESS,
husband and wife, when incompetent to prove, I. 28, 253.
NOTICE,
to produce writings, I. 560 — 563.
(See Equity. Private Writings.)
NOTORIETY,
general, when evidence of notice, I. 138.
whether noticeable by a Judge, 364.
NUISANCE,
what is, II. 465 - 469, III. 184.
to dwelling-houses, II. 466.
to lands, 467.
to incorporeal hereditaments, 468.
to reversionary interests, 469.
action for, is local, 470.
proofs by plaintiff, 470 - 474.
possession, or title, 471.
injury by defendant, 472.
when lessor liable for, 472.
injury, when by plaintiff's own fault, 473.
when by mutual faults, 473.
when by defendant's own fault, 473.
proximate cause of, 473.
INDEX. 553
NUISANCE, continued.
damages, IL 474.
defences to this action, 475, 476.
by proof of abandonment of right by plaintiflT, 476.
indictment for, IIL 185.
proof of, 186.
defence, 187.
NULLUM TEMPUS OCCURRIT REGI,
when overthrown by presumption, I. 45.
a
OATH, '
its nature, I. 328.
in lilemy when admissible, 348, 349, 350, 352, 558.
how administered, 371.
suppletory. III. 410.
decisory, 411.
jur amentum veritatis^ 412, n.
jur amentum affectionis^ 412, n.
OBLIGEE,
release by one of several, binds all, I. 427.
(See Witnesses.)
OBLIGOR,
release to one of several discharges all, I. 427.
(See Witnesses.)
OBLITERATION. (See Alteration.)
OFFICE,
appointment to, when presumed, I. 83, 92.
OFFICE BOOKS. (See Public Records and DocumenU.)
OFFICER,
defacto^ prima facie proof of appointment, I. 83, 92, IIL 483.
OFFICIAL COMMUNICATIONS,
when privileged, I. 249 - 252.
(See Privileged Communications.)
ONUS PROBANDl,
devolves on the affirmant, I. 74.
on party producing a witness deaf and dumb, 366.
on party alleging defect of religious belief, 370.
in probate of wills, 77.
exceptions to the rule : —
1. when action founded on negative allegation, 78.
VOL. III. 47 •
554 INDEX.
ONUS PROBANDl, continued.
2. matters best known to the other party, I. 79.
3. allegations of criminal neglect of duty, 80.
4. other allegations df a negative character, 81.
in indictments. III. 24.
of negative averments in indictments, 24.
in civil cases, I. 78-81.
in cases of suppression, fabrication, or destruction of evidence,
III. 34.
in homicide, 140.
in Equity, 253.
in Admiralty, 404.
OPINION,
when evidence of it is admissible, I. 440, 576, 580, n.
(See Admiralty^ &c. Courts Martial, ExperU,)
OVERT ACT,
proof of, in treason, I. 235.
(See Treason,)
OWNER,
of property stolen, a competent witness, I. 412.
OWNERSHIP,
proved by possession, I. 34.
(See Admiralty^ &c.)
P.
PAPERS,
private, when a stranger may call for their production, I. 246.
(See Private Writings.)
PARDON,
its effect to restore competency, I. 377, 378.
(See Witnesses.)
PARISH,
boundaries, proof of, I. 145.
judgment against, when evidence for another parish, 534.
books, 493.
(See Public Records and Documents. Boundaries.)
PARISHIONER,
rated, admissions by, I. 179.
PARLIAMENT,
proceedings in, how far privileged from disclosure, I. 251, n.
PAROL EVIDENCE,
its admissibility to explain writings, I. 275-305.
principle of exclusion, 276.
INDEX. 555
PAROL EVIDENCE, continued.
the rule excludes only evidence of language, I. 277, 282.
in what sense the words are to be understood, 278.
the rule of exclusion is applied only in suits between the parties,
279.
does not exclude testimony of experts, 280.
illustrated by examples of exclusion, 281.
does not exclude other writings, 282.
is admissible to show the written contract originally void, 284.
want of consideration, 284, 304.
fraud, 284.
illegality, 284, 304.
incapacity or disability of party, 284.
want of delivery, 284.
admissible to explain and contradict recitals, when, 285.
to ascertain the subject, and its qualities, &c. 286-288, 301.
these rules apply equally to wills, 287, 289-291.
Mr. Wigram's rules of interpretation of wills, 287, n.
of any intrinsic circumstances admissible, 288.
of usage, when and how far admissible, 292, 293, 294.
to annex incidents, admissible, 294.
whether admissible to show a particular sense given to common
words, 295.
admissible to rebut an equity, 296.
to reform a writing, 296 a, III. 360-364.
to rebut a presumption. III. 366.
to raise a trust, 365.
to explain latent ambiguities, I. 297 - 300.
to apply an instrument to its subject, 301.
to correct a false demonstration, 301.
to show the contract discharged, 302, 304.
to prove the substitution of another contract by parol, 303,
304.
to show time of performance enlarged or damages waived,
304.
*
to contradict a receipt, when, 305.
PARSON,
entries by deceased rector, &c., when admissible, I. 155.
(See Hearsay,)
PARTICEPS CRIMINIS,
admissible as a witness, I. 379.
556 INDEX.
PARTNERS,
mutually afiected by each other^s acts, 1. 1 12.
when bound by new promise by one to pay a debt barred by
statute, 112 n.
admissions by, 177, 189, 207, 527 a.
(See Witnesses,)
PARTNERSHIP,
evidence of, 11. 477 - 479.
in actions by partners, 478.
in defence, 480.
as between the partners, 481.
as against them, 482 - 484.
must extend to all, 483.
by common report, 483.
by admissions of the partners, 484.
how rebutted, 485.
when the partners are competent witnesses, 486.
PARTIES,
generally incompetent as witnesses, I. 329, 330.
competent, when, 348 - 363.
(See Admissions. Witnesses.)
PATENTS,
remedy for infringement of right, U. 487.
declaration for, 487, n.
proofs on plaintiff's part, 487-498.
letters patent, 488.
specification, 488.
how expounded, 489. .
sufficiency of, 490.
assignment, 491.
invention his own, 492.
invention new, and reduced to practice, 493, 495.
useful, 493, 495.
infringement, 496, 497, 506.
damages, 496.
identity of machines, 498, 506.
purchaser a competent witness, 499.
defences, and special notices of, 500.
by evidence of previous use, 501, 501 a, 502.
in a foreign country, 502.
subsequent patent, 503.
INDBX.
PATENTS, continued.
' defences, and special notices of,
duplicity of patent, II. 503.
unlawfulness, 503.
injurious tendency, 503, 505.
abandonment by patentee, 504.
dedication to public, 504.
defective specification, 505.
disclaimer, when it may be made, 507.
other violators of, competent witnesses, 508.
adverse patentees, competent witnesses, 508.
copyright^ action for infringing, 510.
proofs by plaintiff, 511 - 514.
entry of copyright, 611.
authorship, 512.
assignment, 513.
infringement, 514.
defences in this action, 515.
when injunction may issue, 615.
PAYEE,
admissibility of, to impeach the security, I. 383-385.
(See Witnesses.)
PAYMENT,
provable by parol, I. 302-305.
of money, effect of, to restore competency, 408-430.
(See Witnesses.)
what is, II. 516.
when it must be pleaded, 616.
by whom to be proved, 516.
receipt given, when to be produced, 517.
proof of, when made to agent or attorney, 518.
to order, 518.
by higher security given, 619.
by debtor^s own security, 519, 520.
by Novation, what, 519.
by debtor^s check, 520.
by negotiable note, or bill, 520.
by note not negotiable, 52 1«
by bank notes, 522.
by note or bill of a third person, 523.
by foreclosure of mortgage, 524.
47 •
657
558 INDEX.
PAYMENT, continued.
by legacy, II. 524.
by remittance by post, 525.
by delivery of specific articles, 526.
by any collateral tbing, 526.
presumption of, from security taken up, 527.
from lapse of time, 528.
from course of trade, 528.
from habit of dealing, 528.
ascription, or appropriation of payments, 529 - 536.
by the debtor, 529, 530.
by creditor, 531.
when to be made, 532.
when it may be changed, 532 a.
by law, 533.
where there is a surety, 534.
where one debt is barred by lapse of time, 535.
where one security is void, 535.
when ratably made, 536.
PAYMENT INTO COURT,
when and how far conclusive, I. 205.
PEDIGREE,
what is included in this term, I. 104.
proof of, 103 - 105.
(See Hearsay.)
PERAMBULATIONS,
when admissible in evidence, I. 146.
PERJURY,
what amount of evidence necessary to establish, I. 257-260.
what. III. 188.
indictment for, 189. *
in what proceeding, 190.
fact of prisoner's testifying, 191.
proof of the oath taken, 192.
of the testimony given, 193, 194.
of its materiality, 195, 196, 197.
of its falsehood and wilfulness, 198, 199, 200.
defence, 201.
competency of prosecutor as a witness, 202.
PERSONALTY,
what is, though annexed to land, I. 271.
INDEX. 559
PHYSICIANS,
generally bound to disclose confidential communications, I. 248.
(See Privileged Communications »)
PLACE,
. when material or not, I. 61, 62, 63, 65, III. 12, 112, 143.
PLAINTIFF,
when admissible as a witness, I. 348, 349, 361, 558.
(See Witnesses.)
PLEAS AND PLEADINGS. (See Allegations.)
POLYGAMY,
in what it consists, III. 203.
indictment for, 204.
proof of first marriage, 204.
second marriage, 205.
of first partner's life, 207.
second partner, when a competent witness, 206.
defence, 208.
POSSESSION,
character of, when provable by declarations of possessor, I. 106.
(See Hearsay,)
when evidence of property, 34.
of guilt, 34,
(See Guilty Possession. Pr estimations.)
whether necessary to be proved under an ancient deed, 21, 144.
POST-OFFICE,
books, I. 484.
(See Public Records and Documents.)
POSTMARKS, I. 40.
PRESCRIPTION,
what, I. 17, 11. 537, 538.
variance in the proof of, I. 71, 72.
must be precisely proved, 56, 58.
lost grant, when presumed, II. 538, 539.
how proved, 546.
kinds of, 540.
what may not be claimed by, 541.
plea of, how maintained, 543.
customary right, what, 542.
plea of what proof will support it, 544, 545.
or defeat it, 544, 545.
(See Custom.)
560 INDEX.
PRESENCE,
constructive, what constitutes, III. 41, 243.
PRESIDENT OF THE UNITED STATES. (See ExeaOite
Privileged Communications. Witnesses,)
PRESUMPTIONS,
of law, conclusive, on what founded, I. 14, 15.
conclusive, how declared, 16, 17.
from prescription, 17.
from adverse enjoyment, 16.
from use of deadly weapon, 18, III. 14, 147.
in favor of judicial proceedings, I. 19, 227.
consideration of bond, 19.
formality of sales by executors, &c. 20.
but not of matters of record, 20.
ancient documents, 21, 143, 144, 570.
genuineness and integrity of deeds, 144, 564.
authority of agent, 21.
as to estoppels by deed, 22 - 24.
by admissions, 27.
by conduct, 27.
as to capacity and discretion, 28, 367.
legitimacy, 28.
coercion of wife by husband, 28, III. 7.
survivorship, I. 29, 30.
neutrality of ship, 31.
performance of duty, 227.
from spoliation of papers, 31, III. 408, 453.
principle and extent of conclusive presumptions of law, 1. 31, 2St
disputable, nature and principles of, 33.
of innocence, 34, 35.
except in case of libel, and when, 36, III. 168.
of malice, I. 34, III. 14, 145 - 147.
of lawfulness of acts, I. 54.
from possession, 34.
guilty possession, 34, III. 31 - 33, 57.
destruction of evidence, I. 37, III. 408, 453.
fabrication of evidence, I. 37.
usual course of business, 38, 40.
non-payment twenty years, 39.
of continuance, 41.
of life, not after seven years of absence, &c. 41.
of continuance of partnership, once proved, 42.
i
\
INDEX. 561
PRESUMPTIONS, continued.
disputable, of contiauance of opinions and state of mind, I. 42, 370.
of capacity and discretion in children, 367.
in persons deaf and dumb, 366.
of religious belief in witnesses, 370.
of international comity, 43.
of amount and quantity, II. 129 a.
of possession of letters testamentary, 344.
of payment, 32, 33, 527, 528.
of knowledge of the contents of a will, 675, n.
of alteration of will by testator, 681.
of time when alteration made, 681, n.
of sanity, 689.
of innocence. III. 29, 30.
of fraud, 254.
of fact, nature of, I. 44.
belong to the province of the jury, 44.
when juries advised as to, by the Court, 45-48.
PRINCIPAL AND AGENT. (See Agency.)
PRINCIPAL DEBTOR,
when his admissions bind the surety, I. 187.
PRINCIPAL FELON,
accessory not a competent witness for, I. 407.
PRINCIPALS,
who are such, III. 40, 41.
in the first degree, 40.
second degree, 40.
must be tried before accessory, 46.
PRISON BOOKS,
when and for what purposes admissible, I. 493.
(See Public Records and Documents.)
PRISONER OF WAR,
mode of procuring attendance of, as a witness, I. 312.
PRIVATE WRITINGS,
contemporaneous, admissible to explain each other, I. 283.
proof of, when lost, 557, 558.
diligent search required, 558.
production and inspection of, how obtained, 559.
notice to produce, 560.
when not necessary, 561.
how directed and served, 561, 562.
when to be called for, 563.
562 INDEX.
PRIVATE WRITINGS, continued.
production of, in Equity, III. 295-305.
(See Documentary Evidence.)
alteration in, when to be explained, I. 564.
when presumed innocent, 564.
to be tried ultimately by the jury, 564.
* a deed, renders it void, 565.
reasons of this rule, 565.
alteration and spoliation, difference between, 566.
by insertion of words supplied by law, 567.
made by the party, immaterial and without fraud, does not
avoid, 568.
made by party, with fraud, avoids, 568.
but does not devest estate, 568.
defeats estate lying in grant, 568.
destroys future remedies, 568.
made between two parties to an indenture, but not affectiog
the others, 568.
proof of, must be by subscribing witnesses, if any, 272, 569.
exceptions to this rule —
1. deeds over thirty years old, 570.
2. deed produced by adverse party claiming under it, 571.
3. witnesses not to be had, 572.
4. office bonds, 573.
subscribing witness, who is, 569.
diligent search for witnesses required, 574.
secondary proof, when witness not to be had, 84, d. 575.
handwriting, how proved, 272, 576.
personal knowledge of, required, 577.
exceptions to this rule, 272, 578.
comparison of handwriting, by what other papers, 579 - 582.
PRIVIES,
who are privies, I. 23, 189, 190, 211.
PRIVILEGE OF WITNESS,
from arrest, I. 316.
from answering, 451 - 460.
PRIVILEGED COMMUNICATIONS,
1. made to legal counsel — principle of exclusion, I. 237.
who are included in the rule, as counsel, 239, 241.
nature of the communication, 240.
extends to papers intrusted with counsel, 240.
not to transactions in which the counsel was also party, 242.
INDEX. 563
PRIVILEGED COMMUNICATIONS, continued.
protection remains forever, unless waived by the party, I. 243.
limitations of the rule, 244, 245.
when title-deeds and papers, of one not a party, may be called
out of the hands of his agent, 246.
2. made to clergyman, how far privileged, 229, 247.
3. made to medical persons and other confidential friends and
agents, not privileged, 248.
4. arbitrators, not bound to disclose grounds of awards 249.
5. secrets of State, 250, 251.
6. proceedings of Grand Jurors, 252.
7. between husband and wife, 254, 334.
8. in prosecutions for libel, III. 168, n.
9. in civil actions for libel, II. 421.
PRIZE,
foreign sentence of condemnation as, I. 541.
PRIZE COURTS, III. 387.
(See Admiralty y ^c)
PROBATE COURTS,
decrees of, when conclusive, I. 518, 550.
PROBATE OF WILLS.
mode of proof of, II. 339, 343, n.
effect of, 672.
PROCHEIN AMY,
admissions by, I. 179.
inadmissible as a witness, 347, 391.
PROCLAMATIONS,
proof of, I. 479.
evidence of, what, 491.
PRODUCTION OF WRITINGS,
private, how obtained, I. 559 - 563.
(See Private Writings. Equity.)
PROMISSORY NOTE,
parties to, when competent to impeach it, I. 383 - 385.
(See Witnesses. Bills of Exchange.)
PROOF,
defined, I. 1.
full proof, III. 409.
half proof, 409.
PROPERTY,
when presumed from possession, I. 34.
564
INDEX.
PROSECUTOR,
when competent as a witness, I. 362.
(See Courts Martial.)
PUBLIC BOOKS,
contents provable by copy, I. 91.
(See PuUic Records and Documents.)
PUBLIC AND GENERAL INTEREST. (See Hearsay.)
PUBLICATION,
of libel by agent, when principal liable for, L 36, 234, III. HO.
of will, what and when necessary, II. 675.
PUBLIC RECORDS AND DOCUMENTS,
inspection of records of superior courts, I. 471, 472.
of inferior courts, 473.
of corporation books, 474.
of books of public offices, 475, 476.
when an action is pending, 477.
when not, 478.
nroof of public documents not judicial, 479 -491.
^ by copy, 91, 479 -484.
acts of State, 479.
statutes, 480, 481.
legislative journals, 482.
official registers, &c. 483, 484.
character of these books, 485, 496.
proper repository, 142, 485.
who may give copies, 485.
foreign laws, 486, 487, 488.
laws of sister States, 489, 490.
judicially noticed by Federal Courts, 490.
admissibility and effect of these documents, 491 -498.
proclamations, 491.
recitals in public statutes, 491.
legislative resolutions, 491.
journals, 491.
diplomatic correspondence, 491.
foreign declarations of war, 491.
letters of public agent abroad, 491.
colonial governor, 491.
government gazette, 492.
official registers, 493.
parish registers, 493.
INDEX. 565
PUBLIC RECORDS AND DOCUMENTS, continued.
admissibility and effect of official registers.
navy office registers, I. 493. *
prison calenders, 498.
assessment-books, 493.
mimicipal corporation books, 493.
private corporation books, 493. *
registry of vessels, 494.
log-book, 495, IE. 428 - 430.
what is an official register, I. 484, 495, 496.
public histories how far admitted, 497.
official certificates, 498.
PUNISHMENT,
endurance of, whether it restores competency, I. 378, n.
Q.
QUAKERS,
judicial affirmation by, I. 371.
QUALIFICATION,
by degree, when proof of dispensed with, I. 195, n.
by license, must be shown by party licensed, 78, 79.
QUANTITY AND QUALITY,
whether material, I. 61.
QUO WARRANTO,
judgment of ouster in, conclusive against sub-officers, under the
ousted incumbent, I. 536.
R.
RAPE,
wife competent to prove, I. 343.
what, III. 209.
carnal knowledge, 210.
force, 211.
without consent, 211.
defence, 212.
credibility of prosecutrix, 212, 213.
impeachment of her, 212-214.
impuberty of prisoner, 215.
RATED INHABITANTS,
(See Inhabitants,)
admissions by, I. 175, 331.
VOL. III. 48
566 INDEX.
REAL ACTIONS,
various forms of, in the United States, 11. 547.
of remedies fOr mesne profits^ 546.
remedies for betterments, 549 - 551.
writ of right, evidence in, 554.
seisin of plaintiff, proof of, 555.
plea of nul disseisin^ evidence under, 556.
disseisin, how proved, 557.
how rebutted, 558.
lasting improvements or betterments, what, 559.
(See Ejectment.)
REALTY,
what is, I. 27 L
REASONABLE DOUBT,
what, III. 29.
RECEIPT,
effect of, as an admission, I. 212.
when it may be contradicted by parol, 305.
of part payment, by indorsement on the security, 121, 122.
when admissible as evidence of payment, 147, n.
RECITALS,
in deeds, when conclusive, I. 24, 25, 26, 211.
when evidence of pedigree, 104.
RECOGNIZANCE. (See Witnesses.)
RECORDS,
variance in the proof of when pleaded, I. 70.
public, provable by copy, 91.
inspection of, 471 - 478.
(See Records and Judicial Writings.)
RECORDS AND JUDICIAL WRITINGS,
proof of, L 501-521.
by copies, three kinds of, 501.
by exemplification, and what, 501.
by production of the record, 502.
when obtained by certiorari, 502.
by copy under seal, 503.
proof of records of sister States of the United States, 504 - 506.
proof of records by ofRce copy, 507.
by examined copy, 508.
when lost, 509.
proof of verdicts, 510.
decrees in chancery, 510, 511.
INDEX. 567
RECORDS AND JUDICIAL WRITINGS, continued.
proof of answers in chancery, I. 512.
judgments of inferior courts, 513.
foreign judgments, 514.
inquisitions post mortenij and other private offices, 515.
depositions in chancery, 516.
depositions taken under commission, 517.
wills and testaments, 518.
letters of administration, 519.
examination of prisoners, 520.
writs, 521.
admissibility and effect of these records, 522-556.
general principles, 522.
who are parties, privies, and strangers, 523, 536.
mutuality required, in order to bind, 524.
except cases in rem, 525.
cases of custom, dec., 526.
# when offered for collateral purposes, 527, 527 a.
or as solemn admissions, 527 a.
conclusive only as to matters directly in issue, 528, 534.
general rule as stated by Lord C. J. De Grey, 528.
applies only where the point was determined, 529.
to decisions upon the merits, 530.
whether conclusive when given in evidence, 531.
to be conclusive, must relate to the same property or trans-
action, 532.
effect of former recovery in tort, without satisfaction, 533.
sufficient, if the point was essential to the former finding,
534.
judgment in criminal case, why not admissible in a civil
action, 537.
judgment, for what purposes always admissible, 538, 539.
foreign judgments, jurisdiction of court to be shown, 540.
in rem^ conclusive, 540, 542.
how far conclusive as to incidental matters, 543.
as to personal status^ marriage, and divorce, 544, 545.
executors and administrators, 544.
foreign judgments in personam^ their effect, 546 - 549.
judgments of sister States of the United States, 548.
citizenship not material, in effect of foreign judgments, 549.
admissibility and effect —
of decrees of Courts of Probate or Ecclesiastical Courts, 550*
568 INDBZ.
RECORDS AND JUDICIAL WRITINGS, continued,
admissibility and efiect, continued —
of Chancery decrees, 1. 551.
answers, 551.
demurrers, 551.
pleas, 551.
{See Equitp,)
of depositions, 552.
of foreign depositions, 552.
of verdicts and depositions, to prove matters of reputation,
555.
of inquisitions, 556.
of mutuality, as to depositions, 553.
whether cross-examination is essential to their admissibility, 553,
554.
RECOUPMENT,
when allowed, II. 136.
RE-EXAMINATION, ,
of witnesses, I. 467, 468.
(See Equity, Witneeees.)
REGISTER,
official, nature and proof of, I. 483, 484, 485, 493, 496, 497.
parish, 493.
bishop^s, 474, 484.
ship^s, 494.
foreign thapel, 493, n.
fleet, 493, n.
(See Public Records and Documents.)
REGISTRY,
proper custody, when, L 142, 485.
RELEASE,
competency of witness restored by, when, I. 426, 430.
by seaman, not an estoppel. III. 437.
(See Witnesses,)
RELATIONSHIP,
of declarant, necessary in proof of pedigree, when, I. 103, 104,
134.
RELIGIOUS PRINCIPLE AND BELIEF,
what, necessary to competency of witness, I. 368 - 372.
(See Witnesses.)
RENT,
presumption from payment of, I. 88.
INDBX. 569
REPLEVIN,
surety in, how rendered competent, I. 392, n.
when it lies, II. 560.
what title plaintiff must prove, 561.
plea of turn cepit, evidence under, 562.
property in defendant, 563.
avowry or cognizance, 564.
pleas of non demistt and non tenuity proof under, 565.
nil hdbuU in ienementis^ 565.
riens in arrear^ 566.
cognizance as bailin, 567.
avowry for damage feasant^ 568.
tender, 569.
competency of witnesses, 570.
REPUTATION,
of witnesses, I. 101, 461.
(See Hearsay. Witnesses.)
evidence of, when proved by verdict, 139.
RES GESTJE,
what, I. 108, 109, 111, 114.
(See Hearsay,)
RESIGNATION,
of corporator restores competency, I. 430.
RESOLUTIONS,
legislative, I. 479.
at public meetings may be proved by parol, 90.
REVOCATION,
^ of authority or agency, II. 68 a.
of submission, 79.
of will, 680 - 687.
REWARD,
title to, does not render incompetent, L 412, 414.
RIOTS, ROUTS, AND UNLAWFUL ASSEMBLIES,
deEnition of. III. 216.
proof of a riot, 217.
number of persons, 217.
unlawfully assembled, 218.
acts of violence, 219.
terror, 219.
character of the object, 220.
order of proofs, 221.
proof of rout, 222.
48*
370 INDBX.
RIOTS, ROUTS, AND UNLAWFUL ASSEMBLIES, umiwued,
proof of unlawful assembly, III. 222.
ROBBERY, •
definition of, m. 223.
indictment for, 223.
proof of property, 224.
value, 224.
taking, 225, 226.
felonious intent, 227.
taking from the person, 228.
force, 229, 230. *
putting in fear, 231.
danger to person, 232.
to property, 233.
to reputation, 234.
immediate, 235.
dying declarations of party robbed, inadmissible, 236.
S.
SALE,
when to be proved only by writing, I. 261, 267.
(See WHiing,)
SANITY,
whether letters to the party admissible to prove, I. 101, n.
opinions of physicians admissible as to, 440.
(See Insanity,)
SCRIVENER,
communications to, whether privileged, 1. 244.
SEALS,
of foreign nations, judicially noticed, I. 4.
of Admiralty Courts, 5.
of Courts, when judicially noticed, 4, 5, 6, 503.
of corporations, whether to be proved, after thirty 3reai8, 570.
(See Public Records and Documents, Records and Judicial
Writings,)
SEARCH,
for private writings lost, I. 558.
for subscribing witnesses, 574.
(See Private Writings.)
SECONDARY EVIDENCE, ^
whether degrees in, I. 84, n.
when admissible, 84, 509, 560, 575.
\
INDEX. 671
SECRETARY OF STATE,
when his certificate admissible, I. 479.
SECRETS OF STATE,
privileged, L 250 - 252. ,
SEDUCTION,
action for, what plaintiff must prove, IL571 -577.
declaration in, 571, n.
proof of relation of servant^ 572.
hiring not necessary, 573.
what acts of service sufficient, 573.
when absence from plaintiff's house is not a bar, 573.
is a bar, 574.
service must have existed at time of seduction, 575.
when service will be presumed, 576.
will not be presumed, 576.
fact of sfduction^ 577.
damages, 577 a.
' general issue, evidence under, 578.
damages, grounds and proof of, 579.
(See Adultery.)
SENTENCE,
of foreign Courts, when conclusive, I. 543 - 547.
(See Records and Judicial Writings.)
SERVANT,
when competent as a witness for master, I. 416.
(See Master and Servant. Witnesses.)
SERVICE,
of notice to quit, proved by entry by deceased attorney, I. 116.
to produce papers, 561.
SHERIFF,
admissions of deputy, evidence against, I. 180.
of indemnifying creditor admissible, 180.
is identified with his under officers, II. 580.
action against, 581.
for misconduct of deputy, 582.
official character of deputy when and how proved, 582.
declarations of deputy, when admissible, 583.
declarations of creditor, when admissible, 583.
for not serving process^ plaintiff's proofs in, 584.
defences in, 585.
for taking insufficient pledges, plaintifi!*'s proofs in, 586.
defences in, 586.
572 INDEX. •
SHERIFF, continued.
action against for not paying over money, plaintiff^s proofs in,
11. 587.
defences in, 588.
his return, when evidence for him, 585.
for an escape, plaintiff's proofs in, 589, 590.
defences in, 591.
for false return, plaintiff's proofs in, 592.
defences in, 593.
how rebutted, 594.
for refusing bail, 595.
for extortion, 596.
for taking goods of plaintiff, 597.
competency of witnesses in these actions, 598.
damages, 599. /
SHIPS,
grand bill of sale requisite on sale of, I. 261.
(See Admiralty^ 6ic*)
SHOP BOOKS,
when and how far admissible in evidence, I. 117- 119.
SIGNATURE,
proofof, II. 71, 164,165.
by initials, when good, 158, n.
of wills, 674.
SLANDER,
who is to begin, in action of, I. 76.
(See lAbel and Slander.)
SOLICITOR. (See Attorney. Privileged Communicaiions.)
SPIES. (See Accomplices.)
SPOLIATION,
«of papers, fraudulent, effect of, I. 31.
in Equity, III. 359.
in Admiralty, 408, 453.
STAMP, I. 436.
(See Memorandum.)
STATUTE OF FRAUDS, L 262 - 274.
(See Equity. Writing.)
STATUTES,
public, proof of, I. 480.
of sister States, 489, 491.
private, 480.
(See Public Records and Documents.}^
INDEX. 573
STEWARD,
entries by, I. 147, 155.
(See Hearsay,)
STOCI^,
transfer of, proved by bank-books, I. 484.
(See Corporations. Public Records and Documents,)
SUBMISSION AND CONSENT,
difference between, III. 59, n.
SUBPCENA,
to procure attendance of witness, I. 309.
(See Witnesses.)
SUBSTANCE OF ISSUE,
proof of, sufficient, I. 56 - 73.
what, in libels and written instruments, 58.
in prescriptions, 58, 71.
in allegations modo etforma^ 59.
in allegations under a videlicet^ 60.
of time, place, &c., 61, 62.
variance in proof of, 63, 64.
what, in criminal prosecutions, 65.
in actions on contract, 66.
in case of deeds, 69.
records, 70.
(See Description.)
SUBSCRIBING WITNESS. (See Attesting Witness. Private
Writings.)
SUMMARY,
legal meaning of the word, III. 401.
SUNDAY,
contracts made on, void, II. 199, n.
SURETY,
how rendered a competent witness for principal, I. 430.
(See Witnesses.)
SURGEON,
confidential communications to, not privileged, I. 247, 248.
SURPLUSAGE,
what, I. 51.
SURRENDER,
when writing necessary, I. 265.
SURVIVORSHIP,
not presumed, when both perish in the same calamity, I. 29, 30.
574 INDEX.
SUSPICION,
when it may be shown in mitigation of damages, II. 272, 458.
T.
TENANT,
estopped to deny title of landlord, when, I. 25.
TENDER,
nature and effect of, II. 600.
of money, plea of, how proved, 601.
in bank notes or checks, 601.
productioi^ of the money necessary, 602.
when dispensed with, 603.
* of a greater sum, when good, 604.
must be absolute, 605.
may be under protest, 605, n.
when there are several debts, 605.
several creditors, 605.
to whom to be made, 606.
at what time to be made, 607.
avoided by subsequent demand, 608.
of specific articles, where to be made, 609-611,
how to be made, 611 a.
(See Payment.)
TERRIER,
what, and when admissible, I. 496.
TIME,
when not material, I. 56, 61, 62.
TOMBSTONE,
inscription on, provable by parol, I. 94, 105.
TREASON,
what amount of evidence necessary to prove, I. 255, 256.
wife incompetent to prove, against husband, 345.
confession of guilt in, its effect, 234, 235.
in what it consists. III. 237, 242, n.
against the United States, 237.
against a State, 237.
misprision of, 238.
allegation of allegiance material, 239.
of overt act, 240.
proof of overt act, 241.
armed assemblage, 242.
presence of prisoner, 243.
INDEX. 575
TREASON, continued.
proof of actual presence of prisoner, III. 243.
constructive, 243.
adhering to enemies, 244.
no accessories in, 245.
number of witnesses required, 246.
proof of misprision of treason, 247.
confession of prisoner, 248.
TRESPASS,
defenjdant in, when admissible for co-defendant, I. 357, 359.
gist of, and points of plaintiff's proof, II. 613.
(1.) possession of plaintiff, 614.
constructive, 615.
by lessee or bailee, 616.
by general owner or reversioner, 616.
of partition fences, 617.
of line trees, 617.
by wrong-doer, 618.
by occupant or lodger, 618.
by finder of goods, 618.
ratione soli^ 618.
of animals yer<z naiurcB^ 620.
right of entry not sufficient, 619.
boundaries, when necessary to be proved, 618 a.
(2.) injury by defendant with force, 621. '
wrongful intent not necessary, 622.
with force directly applied, 623.
proof of time when material, 624.
proof of trespass, when it may be waived and another proved,
624.
general issue, evidence under, 625.
plea of liberum tenementum^ evidence under, 626.
license^ 627.
in law, 628.
justification under process, 629.
defence of properly, 630.
right of way, 631, 632.
right to dig gravel, 631.
replication de injuria^ evidence under, 633.
new assignment in, 634, 635.
TRIAL,
when put off, on account of absent witness, I. 320.
576 INDBX.
TRIAL, continued.
when put off for ireligious instruction of witness, I. 367.
(See Witnesses,)
TROVER,
whether barred by prior judgment in trespass, I. 533.
(See Records and Judicial Writings.)
proofs in, by plaintiff, 11. 636-647.
(1.) of property in plaintiff, 637.
special, nature of, 637, n.
in goods, by sale, 638.
in negotiable securities, 639.
right of present possession, 640. *
property as executor, 6cc., 641.
(2.) conversion by defendant, what is, 642.
license, when presumed, 643.
conversion by defendant, when proved by demand and
refusal, 644, 645.
when not, 645.
between tenants in common, evidence in, 646.
when a sale by one is a conversion, 646, n.
by |}usband and wife, 647.
defences in this action, 648.
damages in, 649.
TRUSTS, «
to be proved by writing, I.- 266.
except resulting trusts, 266. * •
resulting, when they arise, 266.
TRUSTEE,
when competent as a witness, I. 333, 409.
U.
UNCERTAINTY,
what, I. 298, 300.
UNDERTAKING,
to release, its effect on competency, I. 420.
UNDERSTANDING,
not presumed in persons deaf and dumb, I. 366.
UNDERWRITER,
party to a consolidation rule, incompetent, I. 395.
who has paid loss, to be repaid on plaintiff's success, incompe-
tent, 392.
opinions of, when not admissible, 441.
INBBX. 577
UNDUE INFLUENCE,
what, II. 688.
UNITED STATES,
laws of, how proved, inter sese^ I. 489, 490.
judgments of Courts of, 548.
(See Public Records and Documents. Records and Judicial
Proceedings.)
UNWHOLESOME FOOD,
ofTence of selling. III. 85.
USAGE,
admissibility and effect of, to affect written contracts, 1. 292 - 294.
(See Custom and Usage. Parol Evidence.)
USE AND OCCUPATION,
defence to action for, II. 135.
V.
VARIANCE,
nature of, I. 63, 64-73.
in criminal prosecutions, 65.
in the proof of a contract, 66, U. 11, 12, 13, 160, 189, 625.
consideration, I. 68.
deeds, 69.
when literal agreement in proof not necessary, 69.
in ihe name of obligor, 69, n.
in the proof of records, 70.
.prescriptions, 71, 72.
fatal consequences of, how avoided, 73.
(See Description. Substance of the Issue.)
VERDICT,
inter alios^ evidence of what, I. 139, 538, 555.
separate, when allowed, 358, 363.
how far conclusive in Equity, III. 261 - 266.
VIDELICET,
its nature and office, I. 60.
when it will avoid a variance, 60.
VOIR DIRE,
what, I. 424.
(See Witnesses.)
w.
WASTE,
what is, and how punishable, II. 650.
VOL. III. 49
578 INDEX.
ft
WASTE, continued.
damages in, II. 650.
action of, 651, 652.
pleas in, 653.
action on the case for, by landlord, 654.
proofs in, 654.
must be specially stated and proved, 655.
general issue in, evidence under, 656.
by plaintiff, 656.
by defendant, 656.
WAY,
(See Highway,)
private, how it may exist, II. 657.
by necessity, 658.
appurtenant, 659 a.
how proved, 659.
when lost by non-user, 660, 665.
proofs by defendant, in action for disturbance of, 660.
in trespass, 661.
public, how proved, 662.
proved by dedication, 662.
by whom made, 663.
how rebutted, 664.
not lost by non-user, 665.
WIDOW,
incompetent to testify to admissions by deceased husband, 1. 337
(See Husband and Wife. Privileged Communications.)
WILLS,
how to be executed, I. 272.
revoked, 272.
cancellation of, what, 273.
admissibility of parol evidence to explain, 6ec., 287-291.
(See Parol Evidence.)
Mr. Wigram^s rules of interpretation, 287, n.
general conclusions, 291, n.
proofof, 440, 518.
effect of the probate of, 550.
diversities in modes of proof of, II. 666.
by what law governed, 668.
as to movables, 668, 669.
as to immovables, 670.
by what law interpreted, 671.
IKDBX. 579
WILLS, continued,
probate, efTect of, IL 672.
when conclusive, 672.
mode of proof of, 339, 340, 343, n.
signature of, by testator, what is sufficient, 674.
publication of, what is, and when necessary, 675.
witnesses, need not see testator actually sign, 676.
how many necessary, 677.
must sign in testator^s presence, 678.
presence of testator, what is, 678.
thirty years old, need not be proved, 679.
revocation of, what is, 680.
express, by subsequent will, 68 L
revocation of, express, by deed of revocation, 68L
by cancellation, 68 L
by cancellation of duplicate, 682.
when avoided by destroying the instrument of revocation,
683.
must be by testator while of sound mind, 681, n.
implied, on what principle, 684.
by marriage and issue, 684, 685.
by alteration of estate, 686.
by void conveyance, 687.
revival of, 683.
how avoided, 688.
obtained by undue influence, when, 688.
insanity of testator, burden of proving, 689.
at time of executing the will, 690. *
what is evidence of, 690.
proved by admissions when, 690.
declarations of devisees in disparagement of, 690.
attesting witnesses, why required, 69 L
must be competent, 691.
may testify as to belief, 69 L
proof of in Courts of Ck)mmon Law, 692, 693.
when lost, 688 a.
under issue of devisavit vel non^ 693, 694.
WITNESSES,
how many necessary to establish treason, I. 255, 256.
peijury, 257 - 260.
to overthrow an answer in chancery, 260.
(See Equity.)
580 INDEX.
WITNESSES, continued.
how to procure attendance of, I. 309 - 3SM.
by svhpcena^ 309.
suhpoma duces tecum^ 309.
tender of fees, 310, 311.
not in criminal cases, 311.
habeas corpus ad testifieandumj 312.
recognizance, 313.
stdfpcBna when served, 314.
how served, 315.
how and when protected from arrest, 316.
discharged from unlawful arrest, 318.
neglecting or refusing to appear, how compelled, 319.
residing abroad, deposition taken under letters rogatory, 320.
sick, deposition taken by commission, when, 320.
depositions of, when and how taken, 321 - 324.
in perpeiuam rei memoriam, 324, 325.
competency of, 327 - 430.
to be sworn. Oath, its nature, 328.
competency of parties, 327, 330.
attorneys, 364, 386.
quasi corporators, 331.
private corporators, 332, 333.
members of charitable corporations, 333.
husband and wife, 334 - 336.
time of marriage not material, 336.
rule operates after divorce or death of one, 337.
exception, 338.
rule applies only to legal marriages, 339.
how affected by husband^s consent, 340.
^ applies wherever he is interested, 341.
competent, in collateral proceedings, 342.
exceptions, in favor of wife, 342-345.
rule extends to cases of treason, semb,^ 345.
dying declarations, 346.
parties nominal, when incompetent, 347.
parties, when competent, 348, 558.
from necessity, 348 - 350.
from public policy, 350.
answer in chancery admissible, 351 .
(See Equity.)
oath given diverse intuitu^ admissible, 352.
INDEX. 681
WITNESSES, continued.
parties, when competent,
never compellable to testify, I. 353.
one of several not admissible for tbe adverse party, without
consent of all, 354.
when admissible for the others in general, 355.
in actions ex contractu^ 356.
in actions 'ex delicto^ 357 - 359.
made party by mistake, when admissible, 359.
defendant in ejectment, when admissible, 360.
in chancery, when examinable, 361.
in criminal cases, as to prosecutor, I. 362, III. 202.
as to defendants, I. 363.
Judge when incompetent, 364.
Juror, competent, 364, n.
as to competency of persons deficient in understanding, 365 - 367.
persons insane, 365.
cause and permanency immaterial, 365.
persons deaf and dumb, 396.
as to competency of children, 367.
persons deficient in religious principle, 368 - 371.
general doctrine, 368.
degree of faith required, 369.
defect of faith never presumed, 370.
how ascertained and proved, 370, n.
how sworn, 371.
infamy of, renders incompetent, 372.
reason of the rule, 372.
what crimes render infamous, 373i
extent of the disability, 374.
must be proved by record of the judgment, 375.
exceptions to this rule of incompetency, 374.
foreign judgment of infamy goes only to the credit, 376.
disability from infamy, removed by reversal of judgment, 377.
by pardon, 377, 378.
accomplices, when admissible, 379.
their testimony needs corroboration, 380, 381.
unless they were only feigned accomplices, 382.
party to negotiable instrument, when incompetent to impeach it,
383-385.
interested in the result, generally incompetent, 386 - 430.
49 •
582 INDEX.
WITNESSES, continued. .
interested in the result, generally incompetent,
nature of the interest, direct and legal, dsc., L 386.
real, 387.
not honorary obligation, 388.
not in the question alone, 389.
test of the interest, 390.
mode of proof, 423.
magnitude and degree of interest, 391.
nature of interest illustrated, 392.
interest arising from liability over, 393.
in what cases, 394-397.
agent or servant, 394, 396.
co-contractor, 395.
what extent of liability sufficient, 396, 397.
implied warranty sufficient, 398.
balanced interest does not disqualify, 391, 399, 420.
parties to bills and notes, 399.
probable effect of testimony does not disqualify, 400.
liability to costs disqualifies, 401, 402.
title to restitution, when it disqualifies, 403.
interested in the record, what, and when it disqualifies, 404, 405.
in criminal cases, as accessory, 407.
conspirator, &c., 407.
nature of disqualifying interest further explained by cases to
which the rule does not apply, 408 - 410.
exceptions to the rule that interest disqualifies, 411-420.
1. witness entitled to reward, or other benefit on conviction,
412-414.
2. party whose name is forge'd, 414.
3. rendered competent by statute, 415.
4. admitted from public convenience and necessity, in case
of middle-men, agents, &c., 416.
confined to ordinary business transactions, 417.
5. interest subsequently acquired, 418.
6. offering to release his interest, 419.
7. amply secured against liability over, 45JO.
objection of incompetency, when to be taken, 421, 422.
how, if subsequently discovered, 421.
arising from witness's own examination may be removed in
same manner, 422.
from interest, how proved, 423, 424.
IKDBX. 583
WITNESSES, continued.
objection of incompetency) to be determined by the Court alone,
1.425.
examination of, on the voir dire^ what, 424.
competency of, when restored by a release, 426.
by whom given, 427.
when not, 428.
delivery of release to the witness not necessary, 429.
when restored by payment of money, 408, 430.
by striking off name, 430.
by substitution of another surety, 430.
by operation of bankrupt laws, &c., 430.
by transfer of stock, 430.
by other modes, 430.
by assignment of interest, 408.
examination of, 431 - 469.
regulated by discretion of Judge, 431.
may be examined apart, when, 432.
direct and cross-examinations, what, 433.
leading questions, what, 434.
when permitted, 435.
when witness may refer to writings to assist his memory,
436, 437.
when the writing must have been made, 438.
if witness is blind, it may be read to him, 439.
must in general depose only to facts personally known, 440.
when opinions admissible, 440.
when not, 441.
witness not to be impeached by party calling him, 442.
exceptions to this rule, 443.
may be contradicted as to a particular fact, 443.
witness surprising the party calling him, 444.
cross-examination, when, 445.
value and object of, 446.
how long the right continues, 447.
how far as to collateral facts, 448, 449.
to collateral fact, answer conclusive, 449.
as to feelings of hostility, 450.
as to existing relations and intimacy with the other party, 450.
respecting writings, 463 - 466.
in chancery, 554.
(See Equity.)
584 INDEX.
WITNESSES, continued.
whether compellable to answer, I. 451 - 460.
to expose him,
1. to a criminal charge, 451,
2. to pecuniary loss, 452.
3. to forfeiture of estate, 453.
4. to disgrace, 454, 455.
where it only tends to disgrace him, 456.
where it shows a previous conviction, 457.
to questions showing disgrace, but not afiectiog his credit,
458.
to questions showing disgrace, affecting his credit, 459.
when a question may be asked which the witness is not
bound to answer, 460.
modes of impeaching credit of, 461 - 469.
1. by disproving his testimony, 461.
2. by general evidence of reputation, 461.
extent of this inquiry, 461.
3. by proof of self-contradiction, 462.
how to be supported in such case, 369.
how to be cross-examined as to contents of writings,
463 - 466.
reexamination of, 467, 468.
when evidence of general character admissible in support of, 469.
deceased, proof of former testimony, 163- 167.
(See Admiralty^ &c. Courts Martial, Equity.)
WRIT,
how proved, I. 521.
WRITING,
when requisite as evidence of title, on sale of ships, I. 261.
(See Admiralty^ &c. Ships,)
by the Statute of Frauds, 262.
to convey an interest in lands, 263.
to make a surrender, 265.
to prove a trust of lands, 266.
a collateral promise, 267.
certain sales of goods, 267.
sufficient, if contract is made out from several writings, 266.
agent^s authority need not be in writing, 269.
unless to make a deed, 269.
the term interest in land expounded, 270, 271.
devise must be in writing, 2"^.
INDEX. 585
WRITING, continued.
devise, how to be executed, 1.272.
revoked, 273. ^
to bind an apprentice, 274.
in what sense the words of a written contract are to be taken,
274. ,
when parol evidence is admissible to explain, 6zc.
(See Equity. Parol Evidence.)
public,
(See Public Documents. Records and Judicial Writings.)
written evidence, different kinds of, 470.
private,
(See Private Writings.)
WRITTEN INSTRUMENTS, ^
production of, II. 11.
variance in proof of, 11.
date of, when material, 12, 13.
how to be pleaded, 14, 15.
proof of, when it may be called for, 16.
loss of, how proved, 17.
YEAR AND DAY, III. 120.
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