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A TREATISE
LAW OF EYIDENCE.
SIMON GEEENLEAF, LL.D.,
EMBBITUS PEOFESSOE OF LAW IN HABVABD UNIVEESITT.
Quorsum enim saeras leges inventse et sanoitse fuere, nisi ut ex ipsarum juztitia
unicuique jus suum tribuatur ? — Muscardds ex Ulpian .
VOLUME I.
TWELFTH EDITION, CAEEFULLY EEVISED, WITH LAEGE AUDITICi]
ISAAC F. EEDFIELD, LL.D.
BOSTON:
LITTLE, BROWN, AND COMPANY.
KDCCOIXVI.
^^/J^^
Entered according to Act of Congress, in the year 1858,
By James Gkeenleap,
in the Clerk's Office of the District Court of the District of Massachusetta.
Entered according to Act of Congress, in the year 1863,
By James Greenleae,
in the Clerk's Office of the District Court of the District of Massachusetts.
Entered according to Act of Congress, in the year 1866,
By Mes. James Gkeenleap,
In the Clerk's Office of the District Court of the District of Massachusetts.
ilBR^^
TO THE HONORABLE
JOSEPH STORY, LL.D.,
OME OB" THB JUSTICES Off THE SUPREME COURT OF THE UNITED STATES,
AND DANE PROEESSOR OE LAW IN HARVARD UNIVERSITY.
SiK,
In dedicating this work to you, I perform an office both
justly due to yourself and delightful to me, — that of
adding the evidence of a private and confidential witness to
the abundant public testimonials of yoiu- worth. For more
than thirty years the jurisprudence of our country has been
illustrated by your professional and juridical labors ; with
what success, it is now superfluous to speak. Other Jurists
have attained distinction in separate departments of the
law ; it has been reserved for yourself, with singular feli-
city, to cultivate and administer them all. Looking back
to the unsettled state of the law of .our national institutions,
at the period of your accession to the bench of the Supreme
Court of the United States, and considering the unlimited
variety of subjects within the cognizance of the Federal
tribunals, I do but express the consenting opinions of yom-
contemporaries, in congratulating our country that your life
[iii]
IV DEDICATION.
and vigor have been spared until the fabric of her jurispru-
dence has been advanced to its present state of lofty emi-
nence, attractive beauty, and enduring strength.
But many will regard the foundation of the present Law
School in Harvard University as the crowning benefit,
which, through your iastrumentality, has been conferred
on our profession and coufitry. Of the multitude of young
men, who will have drunk at this fountain of jurisprudence,
many will administer the law, in every portion of this wide-
spread Republic, in the true sphit of the doctrines here
inculcated ; and succeeding throngs of ingenuous youth ■will,
I trust, be here imbued with the same spirit, as long as our
government shall remain a government of law. Your anx-
iety to perpetuate the benefits of this Institution, and the
variety, extent, and unthing constancy of your labors in
this cause, as well as the cheerful patience with which they
have been borne, are peculiarly known to myself; while,
at the same time, I have witnessed and been instructed by
the high moral character, the widely-expanded views, and the
|eamed and just expositions of the law, which have alike
/distinguished your private Lectures and your ptiblished
Commentaries. With unaffected sincerity 1 may be per-
mitted to acknowledge, that while my path has been
illumined for many years by your personal friendship and
animating example, to have been selected as your associate
in the arduous and responsible labors of this Institution,
I shaU. ever regard as the peculiar honor and happiness
of my professional hfe. Beate vixisse videar, quia cum
Scipione vixerim.
DEDICATION. V
Long may you continue to reap the rich reward of labors
so vast, so incessant, and of such surpassing value, in the
heartfelt gratitude of our whole country, and in the pros-
perity of her institutions, which you have done so much to
establish and adorn.
I am, with the highest respect.
Your obliged friend,
SIMON GREENLEAP.
Cambhidge, Massachusetts,
February 23, 1842.
AJ1VERTISEMENT TO THE FERST EDITION.
The profession being already furnislied with the excel-
lent treatises of Mr. Starkie and Mr. Phillips on Evidence,
with large bodies of notes, referring to American decisions,
perhaps some apology may be deemed necessary for obtrud-
ing on their notice another work, on the same subject. But
the want of a proper text-book, for the use of the students
under my instruction, urged me to prepare something to
supply this deficiency ; and, having embarked in the under-
taking, I was naturally led to the endeavor to render the
work acceptable to the profession, as well as useful to the
student. I would not herein be thought to disparage
the invaluable works just mentioned ; which, for their
accuracy of learning, elegance, and sound philosophy, are
so highly and universally esteemed by the American Bar.
But many of the topics they contain were never applicable
to this country; some others are now obsolete; and the
body of notes has become so large, as almost to overwhelm
the text, thus greatly embarrassing the student, increasing
the labors of the instructor, and rendering it indispensable
that the work should be rewritten, with exclusive reference
to our own jurisprudence. I have endeavored to state those
fviil
VIU ADVERTISEMENT,
doctrines and rules of the Law of Evidence which are
common to all the United States ; omitting what is purely
local law, and citing only such cases as seemed necessary
to illustrate and support the text. Doubtless a happier
selection of these might be made, and the work might have
been much better executed by another hand ; for now it is
finished, I find it but an approximation towards what was
originally desired. But in the hope, that it still may be
found not useless, as the germ of a better treatise, it is
submitted to the candor of a liberal profession.
CAMBRIDGE, Massachusetts,
February 23, 1842.
ADVERTISEMENT TO THE TWELFTH EDITION.
In preparing the present edition, the entire volume has
been carefully revised, and the decisions, both English and
American, thoroughly examined, for the entire period since
the decease of the author ; and such additions made, both
in the text and notes, as seemed requisite to bring the book
up to the present date, as nearly ia the form in which the
author kept it during his life as was practicable. Careful
abstracts of every section have been prefixed to the several
chapters, and nearly a hundred pages of new matter added
in all, with many hundreds of new cases. The new matter,
which is thus indicated [*], has all been carefully prepared
by my own hand ; but, in the multiplicity of other labors,
I have been obliged to trust mainly to the faithful and dis-
criminating investigations of my excellent friend and assist-
ant, Wilham A. Herrick, Esq., of the Boston bar, for the
collection of the materials which I have used. I feel great
confidence that this volume will be found so far reliable, as
to the present state of the law upon the numerous topics
discussed, as to be valuable and acceptable to the pro-
fession.
1. F. K
Boston, April 10, 1866.
NOTE.
Some of the citations from Starkie's Reports, in the earlier part ot this
work, are made from the Exeter edition of 1823, and the residue from the
London edition of 1817-20. The editions of the principal elementary
writers cited, where they are Hot otherwise expressed, are the follow-
ing:—
Alciati, Opera Omnia. Basileae. 1582. 4 torn. fol.
Best on Presurdptions. Lond. 1844.
Best Principles of Evidence. Lond. 1849.
Canciani, Leges Barbarorum AntiquiB. Venetiis. 1781-1785. 5 vol. fol.
Carpzovii, Practicaa Eer. Crim. Francof ad Msenum. 1758. 3 vol. fol.
Corpus Juris Glossatum. Lugduni. 1627. 6 torn. fol.
Danty, Traite de la Preuve. Paris. 1697. 4to.
Everhardi Concilia. Ant. 1643. fol.
Farinacii Opera. Francof. ad Mtenum. 1618-1^)86. 9 vol. fol.
Glassford on Evidence. Edinb. 1820.
Gresley on Evidence. Philad. 1837.
Joy on Confessions. Dublin. 1842.
Mascardus de Probationibus. Francof. ad Msenum. 1684. 4 vol. fol.
Mathews on Presumptive Evidence. New York. 1830.
Menochius de Presumptionibus. Genevas. 1670. 2 torn. fol.
Mittermaier, Traits de la Preuve en Matiere Criminelle. Paris. 1848.
Peake's Evidence, by Norris. Philad. 1824.
Phillips and Amos on Evidence. Lond. 1838. 8th ed.
Phillips on Evidence. Lond. 1843. 8th ed.
Pothier on Obligations, hy Evans. Philad. 1826.
Russell on Crimes. 3d Amer. ed.
Starkie on Evidence. 6tli Amer. ed. 2 vols
Stephen on Pleading. Philad. 1824:
Strykiorum, Opera. Francof. ad Mxnum. 1743-1753. 15 vol. fol.
Tait on Evidence. Edinb. 1834.
Tidd's Practice. 9th Lond. ed.
Wigram on the Interpretation of Wills. 3d Lond. ed. 1840.
Wills on Circumstantial Evidence. Lond. 1838.
[Si]
CONTENTS.
PAET I.
Of the Nature and Principles of Evidence.
chaptp:r I.
Section
Preliminary Observations 1-3
CHAPTER II.
Of Things Judicially taken notice of without Proof .... 4—6
CHAPTER III.
Of the Grounds of Belief . ' 7-13
CHAPTER IV.
Of Presumptive Evidence 14r-48
PAET n.
Op the Rules which govern the Production or Testimony.
CHAPTER I.
Of the Relevancy of Evidence 49-56
CHAPTER II.
Of the Substance of the Issue 56-73
VOL. I. h
Xiy CONTENTS.
CHAPTER III.
Sectiom
Of the Burden of Proof 74-81 c
CHAPTER IV.
Of tlie Best Evidence , . . . 82-97
CHAPTER V.
Of Hearsay 98-12G
CHAPTER VI.
Of Matters of Public and General Interest ....... 127-140
CHAPTER VII.
Of Ancient Possessions 141-146
CHAPTER VIII.
Of Declarations against Interest 147-155
CHAPTER IX.
Of Dying Declarations 156-162
CHAPTER K.
Of the Testimony of "Witnesses subsequently dead, absent, or
disqualified 163-168
CHAPTER XI. ■
Of Admissions 169-212
CHAPTER Xn.
Of Confessions 213-235
CHAPTER Xin.
Of Evidence excluded by Public Policy 236-254
CONTENTS. XT
CHAPTER XIV.
Sectioh
Of the Number of Witnesses, and the Nature and Quantity of
Proof required in particular cases 255-274
CHAPTER XV.
Of the Admissibility of Parol or Verbal Evidence, to affect that
which is Written 275-305
PAET ni.
Of the Instktjments op Evidence.
CHAPTER I.
Of Witnesses, and the Means of procuring their Attendance . 306-325
CHAPTER n.
Of the Competency of Witnesses 326-430
CHAPTER m.
Of the Examination of Witnesses 431-469
CHAPTER IV.
Of Public Documents 470-498
CHAPTER V.
Of Records and Judicial Writings 499-556
CHAPTER VI.
Of Private Writings 557-583
INDEX TO CASES CITED.
A.
Section
Abbey ». Lill 440
Abbot V. Inhabitants of Hermorf 197
291
569, 572
385
428
268
51 a. 109
414, 422
435
564
230
509
538
531, 536
502, 509
533
397
190
416
676, 581
109
568
420
572, 575
451 a
268, 269, 551
634
V. Massie
V. Plumbe
Abbott V. Mitchell
Abby V. Goodrich
Abeel v. Radcliff
Abney v. Kingsland
Abrahams v. Bunn
Acero et al. v. Petroni
Acker V. Ledyard
Ackroyd & Warburton's case
Adampthwaite v. Synge
Adams v. Balch
V. Barnes
11. Betz
V. Broughton
«. Cuddy
». Davidson
V. Davis
u. Field
V. French
V. Frye
u. Gardiner
u. Kerr
V. Lloyd
V. McMillon
V. Pearson
«. Power
V. Sanders
■B. Stanyan
V. Worldley
Addams v. Seitzinger
Addington v. Magan
Addis V. Van Buskirk
Adler v. Friedman
AQalo V. Fourdrinier
Agawam Bank v. Sears
Agriculturist Co. v. Fitzgerald
Aiken v. Kilburne
Aitcheson v. Maddock
Aitken, ex parte
Alban v. Pritchett
73
212
145, 570
275
122
66
66
303
356
564
568
237
80
238
185, 341
Section
Alcock V. Cooke 239
V. Whatmore 6
Alden v. Deyrej 352
Alderson v. Clay 42, 97, 197, 198
Aldrioh v. Kinney 548
Aldworth's case 502
Alexander v. Gibson 543
V. Harris 58
V. Moore 305
Alivon V. Furnival 546
Allan V. Comstock 292
AUcott u. Strong 112,177
Allegheny v. Nelson 5, 20
Allen V. Allen 301
V. Bennett 268
V. Butler
V. Denstone 113
V. Duncan 108
V. Furbish 281, 284
u. Harrison 239 a
V. Hawks 392, 420, 430
V. Kingsbury 293
V. McKeen 197
V. Say ward 24
V. The Portland Stage Co. 126
V. Watson 489
Allington v. Bearcroft 392
AUmore v. Mills 505
Alna V. Plummer 264
Alner v. George 172, 173, 305
Alston V. Taylor 120
Alvord V. Baker 38
Amey v. Long 246, 309, 558
Amherst Bank v. Root 572
Amick V. Oyler 535
Amos V. Hughes 74
Anderson v. Brock 333, 427
V. Caldwell 533
». Hamilton 251
c. Long 54, 55
V. Parker 104
V. Robson 558
e. Root 563
V. Saundersou 185
V. Weston 121
i*
XVUl
INDBS TO CASES CITED.
Section
Andrews ». Andrews 319
V. Beeker 173
V. Brown 534
V. Ohio & Miss. R. R.
Co. 239 a
V. Palmer 168
V. Solomon 239
V. Vanduzer 35
Androscoggin Bank v. KimbaU 38 a
Angus V. Smith 462
Ankerstein v. Clarke 69
Annandale (Marchioness of)
V. Harris 23
Annesley v. D. of Anglesea 37, 244
Anon. V. Moore 55
Anscombe v. Shore 137, 405
Anthony v. The State 156
ApoUon (The) 6
Apothecaries Co. v. Bentley 79
Appleton V. Boyd 172, 330, 462
V. Ld. Braybrook 514
Arbouin v. Anderson . 81 a
Archer v. English 205
V. Walker 205
Arding v. Flower 316, 317
Armory v. Delamirie 34, 37
Armstrong v. Hewitt 485
Arnfield v. Bates 60
Arnold v. Arnold 369, 528, 531
V. Bp. of Bath and Wells 484
V. Cessna 281
V. Jones 568
V. Redfern 546
V. RiTOult 69
V. Tourtelot 498
Arrison v. Harmstead 568
Arundell v. Arundell 554
V. White 513
Ashley v. Ashley 86
V. Wolcott 64
Ashmore v. Hardy 97, 204
Ashton's case 451 a
Ashton V. Parker 361
Ashworth v. Kittridge 497
Aslin «. Parkin 535
Aston V. Perkes 81
Astor V. Union Ins. Co. 280
Atalanta (The) 31
Atoheson v. Everitt 328, 371, 374
Atherford v. Beard 475
Atkins V. Hatton 485
V. Sange 174
V. Tredgold 174, 176
Atkinson v. Cummins 290
Atlantic Ins. Co. v. Conrad 332
Mut. Ins. Co. V. Fitz-
patrick 323
Atto.-Gen. V. Boston 293
V. Bowman 64. 55
Section
Atto.-Gen. v. Briant 250
V. Bnlpit 432
V. Clapham 280
V. Davison 554
v. Drummond 295
V. Glasgow College 295
V. Hitchcock 433, 449, 461
«. Jeffreys 60
V. Parnther 42, 81
V. Pearson 295
V. Proprietors Meet-
ing-house, &c. 46
V. Shore 295
V. Theakstone 479, 492
V. Windsor 38
Attwood V. Small 171
V. Welton 369, 370, 450
Aubert v. Walsh 38
Audley's (Ld.) case 343
Augusta (Bank of) v. Earle 6, 43
■ V. Windsor 115, 116
Austin «. Bostwick 112
u. Chambers 171
V. Rumsey 572
V. Sawyer 271
V. State 445
n. Thompson 563
V. Vesey 237
V. Willes 384
Australasia (Bank of) v. Nias 546
Avery v.. Pixley 273
V. Stewart 288
Aveson v. Kinnard 102, 156, 254, 337
Ayers v. Hewitt 669
B.
Babb V. Clemson
180,
568
Backhouse v. Middleton
552
Bacon v. Charlton
102
205
V. Chesney
187
V. Williams
581
Badger v. Titcomb
532
Bagley v. McMickle
658
Bagot V. Williams
532
BaSey v. Bailey
392
B.Hyde
55
V. Lumpkin
386
V. Musgrave
73
V. Taylor
564
Bailiffs of Tewksbury v.
Brioknell
58
Baillie v. Hole
392
430
V. Jackson
485
Bain v. Mason
493
Bainbridge v. Wade
289
Baird v. Cochran
452
V. Fortune
287
Baker v. Arnold
245
INDEX TO CASES CITED.
XIX
Baker v. Blunt
Section
574
V. Dening
V. Dewey
V. Haines
272
26
581
V. Milburn
121
V. Rand
632
V. Ray
V. Tyrwhitt
Balcetti v. Serani
37
392, 428
52
Baldney v. Ritchie
5f!n
Baldwin v. Carter
287
V. Dixon
392, 398
V. Hale
648
Balfour v. Chew
505
Ballard v. Noaks
357
V. Walker
304
Balls V. Westwood
25
Balston v. Benstead
17
Baltimore v. State
5
Bamfield u. Massey
54
Banbury Peerage case
28, 81
Bank v. Steward
114
Bank of Australasia v. Nias 546 d
Middlebury w. Rutland 440 a
Woodstock V. Clark 108
Banks v. Farquharson 572
V. Skain 420
Barada t). Caundelet 331
Barbat v. Allen 334
Barb V. Fish 533
Barber v. GingeU 200
V. Goddard 329
V. Holmes 484, 493
o. Watts 505
Ba,ring ». Clarke 113
V. Reeder 342
Barker u. Dixie 334, 340
V. Haskell 117
V. Macrae 416
V. Ray 37, 116, 147, 149
Barlow v. Dupuy 510
V. Vowell 167, 418
Barnard v. Darling 302
Barnes v. Camack 337
V. Harris 238, 239, 241
V. Lucas 207
V. Mawson 137, 139
V. Trompowsky 572
Baron de Bode's case 109
Barough v. White 171, 191
Barr v. Gratz 142, 144, 539
Barrett v. Allen 288
V. Buxton 284
V. Goi-e 356, 547
V. Rogers 805
V. Thorndike 265, 568
V. Union Mut. Fire Ins.
Co. 281
Barretto v. Snowden 391
Section
Rarrington v. Bank of Washing-
ton 564
Barrick v. Austin 174
Barrow v. Humphreys 819
Barrs w. Jackson 550
Barry v. Bebbington 150, 163
V. Ransom 281
». Ryan 569
Barstow's case 218
Barthelemy v. The People 108
Bartlett v. Decreet 101
V. Delpratt 100, 180
VI. Emerson 109
V. Pickersgill 363
V. Smith 49
V. Wyman 281
Bas V. Steele 659
Bass V. elite 107, 196
Bassett v. Marshall 86
V. Porter 80
Batchelder t). Sanborn 118
Bate V. HiU 54, 458
V. Kinsey 241, 662
V. Russell 356, 358
Bateman v. Bailey 108, 180
Bates V. Barber 461
V. N.Y. Ins. Company 173
V. Ryland 423
V. Thompson 632
Bateson v. Hartsink 246
Bathews v. Galindo 207, 339
Battin v. Bigelow 41
Battles V. Batchelder 110
V. HoUey 46, 84
Batturs v. Sellers 199
Bauerman v'. Radenius 172
Baxter v. Graham 398
V. Rodman 422
Bay V. Gunn 400
Bayard u. Malcolm 275
Bayley v. Osborne 427
V. Taylor 564
V. Wylie 616
Baylies v. Fettyplace 58
Baylis ». The Atto.-Gen. 291
Bayne v. Stone 89
Baynes v. Forrest 70
Beach U.Mills 118
V. Packard 26
Beachcrofl v. Beachcroft 288
Beacon Life & Fire Ass. Co.
V. Gibb 292
Beal V. Nichols 445
Beale v. Commonwealth 19
V. Thompson 322
Bealey v. Shaw 17
Beall V. Beck 187
Beaman v. Russell 664
Beamon v. Ellice 432
xz
INDEX TO CASES CITED.
Section
*
3Mti0Il
Beau V. Quimby
241
Bent V. Baker
167, 390
,418
Bearce v. Jackson
24
Bentley v. Cooke
334, 339
,343
Beard v. Talbot
145
V. Hollinback
118
Beardsley v. Richardson
108
Benton v. Burgot
548
Bearss v. Copley
462
Bentzing v. Scott
73
Beasley v. Bradley
358
Berd v. Lovelace
237
V. Magrath
179
Bergen v. Bennett
46
Beatson v. Skene
251
V. The People
217
Beaucliamp v. Parry
190
Berkley Peerage case
104, 125,
128,
Beaumont v. Fell
291
131, 133
,134
V. Field
277
Bermon v. Woodbridge
201
V. Mountain
481
Bernasconi v. Farebrother
181
Beaver v. Lane
69
Berrington d. Dormer v
. Fortes-
Beebe v. Parker
130, 139
cue
359
,360
Beokley v. Freeman
392, 430
Berry v. Banner
139
Beckrow's case
568
Berryman v. Wise
58, 83, 92
, 195
Beckwith v. Benner
245
Berthon v. Loughman
441
. V. Sydebotham
440
Bertie v. Beaumont
142
, 154
Becquet v. McCarthy
546
Berwick v. Horsfall
277
Bedell v. Russell
76
Bests V. Jones
427
Beech's case
65
Betham v, Benson
113
Beeching v. Gower
421
Betts V. Badger
671
Beidehnan v. Foulk
397
V. Bagley
548
Beitz V. Fuller
112, 174
V. Star
537
Belden v. Lamb
51 a
Be van v. Waters
241
,245
V. Seymour
26
V. Williams
195
Bell V. Ansley
180
Beveridge v. Minster
254
337
V. Bruen
284
Beverly v. Craven
144
v. Chaytor
571
Beverley's case
189
V. Firemen's Ins. Co.
288
Bibb V. Thomas
273
V. Hull Railw. Co.
430
Bicknell V. HiU
498
V. Martin
287
Biddis V. James
480, 489
505
V. Morrison 112
174, 323
Biddulph V. Ather
139
V. Smith
395
Bigelow V. CoUamore
277
Bellamy v. Cains
347
V. Winsor
532
Bellew V. Russell
347
Biglow V. Sanders
118
Bellinger v. The People
451, 463
Biggs V. Lawrence
284
Bellinger's case
224
Bilbie v. Lumley
212
Bellows V. Ingraham
548
Billings V. BiUings
281
Beltzhoover v. Blackstock
240
Bingham «. Cabot
491
Benaway v. Conyne
432
■V. Dickey
65
Bend v. Georgia Lis. Co.
292
V. Rogers
348
Bender v. Fromberg
180
V. Stanley
81
Benjamin v. Hathaway
452
Birch V. Depeyster
280
V. Porteus
115, 416
Birchard v. Booth
197 a
V. Sinclair
305
Bird V. Hueston
148
Benner v. Frey
73
V. Randall
631
Bennet v. Watson
313, 319
Birt V. Barlow
107,
493
Bennett v. Francis
205
V. Kershaw
391,
416
V. Holmes
532
V. Rothwell
6
V. Hyde
65
u. Wood
395
V. MorlBy
548
Bishop V. Chambre
564
V. Robinson
167
V. Cone
484
V. Runyon
31
V. Dotey
271
■V. State
369
Bissell V. Briggs
542,
548
V. Tennessee
6
V. Edwards
505
V. Watson
319
». Morgan
81 a
V. Womack
49
Bixby V. Franklin Ins. Co.
494
Bennett's case
228
Black V. Ld. Braybrook
70,
614
INDEX TO CASES CITED.
XXI
• Section
Black V. Lamb 115, 172, 284
Blackburn v. Scholes 205
Blackburne v. Hargrave 311
Blackett v. Lowes 137
V. Weir 356, 389, 395
Blackham's case 550
Blackwell v. Bull 288
Blad V. Bamfield 541, 542
Blade v. Nolan 568
Blair v. Seaver 369
Blake v. Doherty 288
V. Pilford 251
V. Russ 563
V. Sanderson 25
V. White _ 109
Blakemore v. Glamorganshire 536, 537
Blanchard v. Ellis 24
V. Young 74, 91, 561
Bland v. Hasselrig 112
V. Swafford 319
Blaney v. Rice 301
Blantern v. Miller 349
Blewett V. Tregonning 468
Bligh V. Brent 270
Blight V. Fisher 316
Blight's Lessee v. Rochester 25
Bliss V. Brainerd 310
V. McLitire 568
V. Mountain 397
Bliven V. N. England Screw Co. 293
Blodgett V. Jordan 505
Blood V. Goodrich 304
V. Rideout 108
Bloodgood V. Jamaica 175, 331
Bloor V. Davies 392
Blossom V. Cannon 20, 46
Blower 4). Hollis 511
Bloxara v. Elsee 96
Blundell V. Gladstone 291
Blurton v. Toon 572
Blythe v. Sutherland 145
Boardman v. Reed 301
Bodine's case 13 a
Bodmin Mines Co. in re 5
Bodwell V. Osgood 8
u. Swan 65
Bogardus v. Trinity Church 145
Bogart V. Brown 560
Bogert V. Caumau 275
Boileau v. Rudlin 171, 551
Bolin V. Mellidew 320
Bolivar Man. Co. v. Neponset
Man. Co 17
BoUes V. Beach 573
Bolton V. Bishop of Carlisle 668
V. Corp. Liverpool 238, 240,
244
Boltz V. Ballman 39
Bond V. FitzDatrick 190
Section
Bond V. Ward
180
Booge !). Parsons
485
Boorman v. Brown
394
V. Johnson
258, 275
Boorne's case
214
Booth ». Swezey
190
Boothby v. Stanley
664
Boothwick v. Carruthors
81
Borum u. Fouts
239 a
Boston India-Rubber Factory
V. Hoit 546 S
Boston u. Weymouth 150, 570
Boston & Wore. R.R. Corp.
V. Dana 93, 108, 197, 262 a, 469
Boston & P. R.R. v. Midland
R.R. 258
Boston & Wore. R.R. Corp.
V. Old Colony R.R. Corp. 440
Bostwick V. Leach • 271
Boswell V. Smith 38
Bosworth V. Crotchet 122, 153
Botham v. Swingler 95, 422
Botsford V. Moorhouse 265
Bottomley v. Forbes 292
■u. United States 53
V. Wilson 391, 401
Boucher v. Lawson 488
Bouldin v. Massie 658
Boullemet v. State 6 a
Bound V. Lathrop 174
Bourne v. Boston 561
V. Gatliffe 293
V. Turner 406
Bours V. Tuckerman 316
Bowditch V. Mawley 69
Bowen v. Bell 62
Bower v. The State 218
Bowerbank v. Monteiro 283
Bowlby u. Bell 267
Bowles V. Neale 81
Bowman v. Norton 239
V. Noyes 356
V. Rostrou 211
V. Sanborn 822, 484, 577
V. Taylor 22
■u. Woods 440
Bowsher v. Galley 180
Boyd u. Ladson 118
V. McConnell 556
V. McLean 266
Boydell v. Drummond 112, 268
Boyden ». Burke 108
V. Moore 110, 205
Boyle V. Webster 197 a
V. Wiseman 451
Boynton v. Kellogg 54, 461
V. Willard 40
Boys V. Williams 291
Brace v. Ormond 474
XXll
INDEX TO CASES CITED.
Section
Bracegirdle v. Bailey 445
Brackett v. Hoitt 513
V. Mountford 569 a
V. Norton 488, 489
Bradford v. Manley 305 a
Bradlee v. Neal 353
Bradley v. Arthen 491
V. Bradley 527 a, 678
V. Goodyear 118
V. Holdsworth 270
V. ]*eal 356
V. Ricardo 443
Bradshaw v. Bradshaw 289, 290
Bradstreet v. Neptune Ins. Co. 18, 541
Brady v. Brady 440 a
Brain v. Preece 116
Brainard v. Buck 197
V. Clapp 80
Brandao v. Barnett 5
Branden v. Go wing 242
Brander v. Ferriday 138
Brandigee v. Hale 420
Brandon v. Cabiness 171
Brandram v. Wharton 174
Brandt w. lilein 241,245
Brard v. Ackermau 241
Brashier v. Jackson 73
Brattle St. Ch. v. BuUard 17
V. Hubbard 189
Bray (The) Peerage 20
Brazen Nose College v. Salis-
bury 88, 491
Brembridge v. Osborne 38
Breton v. Cope 97, 484
Brett V. Beales 137, 139, 143, 481
Brewer v. Brewer 109
V. Knapp 38
V. Palmer 87, 96
Brewster v. Countryman 303
V. Doan 115
Briant v. Eicke ■ 73
Bridge v. Eggleston 53, 180, 397
V. Gray 112, 532
V. Wellington 423
Bridges v. Armour 354
Bridgewater's (Ld.) case 497
Bridgman v. Jennings 189
Briggs V. Crick 397, 398
V. Georgia 117
V. Greenfield et al. 357
V. WeUs 532
Brigham v. Palmer 569
V. Peters 114, 677
V. Rogers 281, 303
V. Smith 24
Bright V. Sugg 73
Brighton v. Walker 322
Brind v. Dale 81
Brinkerhoff t'. Remson 272
Brisco V. Lomax
Brister v. State
Bristol V. Dan
V. Slade
SecHro
139
214
171
332
Bristow V. Wright 61, 58, 60, 63, 66
Britton's case 226
Broad v. Pitt 247, 248, 249
Brock V. Kent 182
V. Milligan 369, 370
V. Sturdivant 303
Brockbank v. Anderson 423
Brocket v. Foscue 26
Brogy V. Commonwealth 163
Bromage v. Prosser 84
Bromfield v. Jones 61
Brooks V. Barrett 75, 77
V. Bemis 70
V. Blanchard 73
V. Lowry 68
V. Tichburne 581 a
V. White 305
Broom v. Bradley 394
V. Wootom 533
Brotherton & Livingston 358, 373
Brown v. Bellows 443, 444, 462
V. Brooks 262
V. Brown 280, 356, 395, 429
V. Burnes 358
V. Bryne 292
V. Cambridge 305
V. Edson 505, 513
V. Getchell 316^
V. Hicks 485, 493
V. Howard 358
V. Kimball 574
V. King 42
V. Lasselle 341
V. Leeson 253
V. Lynch 420
V. Mooers 469
V. Paysou 245
V. Philadelphia Bank 5
V. Pinkham 602
V. Saltonstall 290
u. Slater 286, 287
V. State 217
V. The Independence 498
V. Thorndike 287, 288
V. Wood 19, 443
V. Woodman 83
Brown's case 218, 344
Browne v. Gumming 471
V. Murray 74
Bruflf V. Conybeare 298 a
Brune v- Thompson 6
Brunswick v. McKeen 20
Brush V. Blanchard 513
V. Wilkins 484
Bryan v. Wear 483
INDEX TO CASES CITED.
xxiil
Section
Section
Bryant ». Ritteubush
858
Bushwood V. Pond
5&,72
V. The Royal Exchange
Bussard v. Levering
40
Ass. Co.
292,
294
Bustin V. Rogers
118
Buchanan v. Moore ,
145
Butcher v. Stuart
285
Bucher v. Jarratt
Butcher's Co. v. Jones
422
Buck V. Appleton
35
Butler V. Alnutt
40
Buckler v. Millard
284
V. Benson
436
Buckley v. Beardsley
268
V. Butler
423
Buckminster v. Perry
77
V. Carver
95, 422
Bucknam v. Barnum
177
V. Collins
63
Bulkley v. Landon
68
V. Cooke
392
Bull V. Clarke
554
V. Gale
280
V. Loveland
246
452
V. Moor
247
V. Strong
356
V. Mountgarret 40, 104 a, 131
Bullard v. Briges
Bullen V. Michel
266
V. Tufts
421
139
142
V. Warren
391,-402
Bullock V. Koon
87
V. Wright
116
BuJibury v. Bunbury
239
240
Buttrick v. Holden
532
V. Mathews
92
Butts V. Swartwood
369
Bunker v. Shed
116
Buxton V. Cornish
304
Bunn V. Winthrop
288
Bunnell v. Butler
461
Bxirbank v. Gould
26
C.
Burchfield v. Moore
565
668
Burd V. Ross
416
Cabot V. Givin
83,92
Burden v. Cleveland
651
Caddy v. Barlow
471
Burgess v. Lane
167
418
Cadwell V. The State
54
V. MerrLH
356
Cady V. Shepherd
112, 174
V. Steer
58
Cailland v. Vaughan
320, 324
Burghart v. Angerstein
493
Caine v. HorsefaU
280, 294
Burgin v. Chenault
301
Calder v. Rutherford
78
Burke v. MiUer
447
532
Calhoun v. Dunning
535
Burleigh v. Stott
174
Calkins v. Evans
260
Burlen v. Shannon
625
Call V. Dunning
569, 572
Burley's case
229
Calvert v. Flower
563
Burling V. Patterson
572
Cambridge v. Lexington
47, 109, 293
Burlington v. Calais
176
Camden v. Doremus
421
Burn V. Miller
303
Cameron v. Lightfoot
210
Burnett v. Phillips
70
Camoys Peerage (The)
105
V. Smith
632
Camp V. Dill
174
Burnham v. Adams
118
Campbell v. Hodgson
281
V. Allen
74
V. Phelps
533
u. Ayre
564
V. Rickards
441
V. Ellis
118
V. State
156
V. Morrissey
309
V. Tousey
392
Burns v. Burns
273
V. Tremlow
339
V. Fay
118
Canal Co. v. Railroad Co
490
Burrell v. Nicholson
76
,474
Cane v. Lord Allen
80
Burrough v. Martin
436
Cannell v. Curtis
83,92
Burt V. Palmer
182
Canney's case
165
Burtenshaw v. Gilbert
273
Cannon v. Jones
402
Burton v. Griffiths
49
Card V. Grinman
273
V. Hinde
391
405
Careless v. Careless
289
V. Issitt
112
Carleton v. Patterson
108, 322
V. Plummer
436
437
V. Whitcher
427
Burgoyne v. Showier
564
Carlisle v. Burley
392
Busby V. Greenslate
397
V. Eady
95, 422, 426
Bush V. Railing
413
V. Garland
180
Bushell V. Barrett
373
V. Hunley
462
XXIT
INDEX TO CASES CITED.
Section
Carlisle (Mayor of) v. Blamire 211
Carlos V. Brook 461
Carmack v. The Commonwealth 180
Carmalt v. Post 440
Carmarthen, Mayor, &c. v. Lewis 73
Came v. Litchfield 451
V. Nicholl 109
Carpenter v. Ambroson 434 a
V. Dame 86
V. Groff 163
V. Hayward 49
V. Hollistei 190
V. King 281
V. Leonard 101
v. Whal 54, 462
Carpenters, &c. of Shrewsbury
V. Hayward 405
Carpmael v. Powis 239, 240
Carr v. Burdis 571
V. Cornell 334
V. Gale 421
Carrington v. Carnock 516
V. Jones 155
V. Roots 271
V. Stimson 322
Carriss v. Tattershall 564
Carroll v. Bowie 38
V. Norwood 144
V. The State 108
V. Tyler 116, 120
V. Waring 39
Carskadden u. Poorman 104
Carson's case 65
Carter v. Bennett 196, 204, 210, 523
V. Boehem 440, 441
V. Buchanon 108
V. Jones 76
V. Pierce 408, 409
V. Pryke 52
V. Wilson 602
Cartwright v. WiUiams 426
Carver v. Jackson 22, 23, 189, 523
V. Tracy 173
In re 272
Cary v. Adkins 185
V. Gerrish 38
V. Pitt 577
Case V. Potter 118
V. Reeve 623
Cass V. Cameron 409
Cassidy v. Stewart 6
Casson v. Dade 272
Cass's case 220, 222
Castellana v. Peillon 875
Castelli V. Groome 820
Castle V. Bullard 63, 358
Casy V. O'Shaunessy 103
Cates V. Hardaore 451
Catlett V. Pacific In5. Co. 484
Seotioi
Catlin V. Bell
284
Caton V. Lenox
165
Cator V. Stokes
498
Catt V. Howard •
179, 201, 439
Caufman v. Cong, of Cedar
Spring 145
Cavalier v. Collins 118
Cavau V. Stewart 514
Cazanove v. Vaughan 616, 553, 654
Central Bridge Corp. v. Butler 74
Chabbock's case 219,222,3701
Chad V. Tilsed 293'
Chadsey v. Greene 182
Chadwick v. Upton 402
V. Burnley 286
Chaffee v. Baptist M.C. 272
V. Thomas 420
Chalfant v. Williams 305
Chamberlain v. Carlisle 527, 531
V. Gorham 349
V. Willson 451, 451 a
Chamberlain's case 311
Chambers v. Bernasconi 109, 115, 162
Champion v. Plummer 268
Champney's case 257
Champneys v. Peck 40, 116
Chance v. Hine 423
Chandler v. Grieves 5
V. Home 432
V. Le Barron 576, 581
V. Mason 385
V. Morton 385
V. Von Roeder 49
Chanoine v. Fowler 5, 488
Chapel V. Washburn 181
Chapin v. Curtis 523
Chapman v. Beard 19i
V. Callis 285
V. Chapman 103
V. Coffin 469
V. Cowlan 135
V. Emden 81
V. Graves 856, 357
V. Searle 207, 208
V. Twitchell 182
V. Walton 441
Chappell V. Bull 24
Chardon v. Oliphant 112
Charleston, &c. R.R. Co.
V. Blake 114 a
Charlton v. Lawry 118
Charnock's case 379
Chase V. Hathaway 603, 513, 518
I!. Jewett 281
V. Lincoln 440
V. Lovering 857
V. Smith 120
V. Spencer 118
Chatfield v. Frver 138
INDEX TO CASES CITED.
XXV
Section ,
Section
Chatfield v. Lathrop
423
Clark V. Hopkins
39
/Chaurand v. Angerstein
280
440
V. Houghman
191
Cheetham v. Ward
427
V. Irviu
537
Chelsea Water-Works.u.
Cowper
21,
V. Johnson
428
570
V. Kirkland
392
Chelmsford Co. v. Demarest
181
V. Lucas
394, 897
Chenango v. Birdsall
356
V. Lyman
40
Cheney's case
289
u. Magruder
116
Cherry v. Boyd
145
V. Munyan
301
. V. Slade
301
ri. Richards
239 a
Chesley v. Frost
568
V. Saunderson
575
Chess V. Chess 163,
165,
166
168
V. Spence
81, 348
Chester v. Bank of liingston
305
V. Trinity Church
493
Cheyne v. Koops
395
V. Vorce
437
Child V. Chamberlain .
358
V. Waite
180
V. Grace
199
V. Wilmot
116
Childrens v. Saxby
848
Clark's case
65
Childress v. Cutter
484,
493
498
Ex'rs V. Carrington
180
Chippendale v. Thurston
174
Ex'rs v.. Reimsdyk
178, 257,
Chirac v. Reinicker
73,
237
,245
260, 3»1
Chitty u. Dendy
6
Lessee v. Hall
375, 376
Choate v. Burnham
293
Clarke v. Bank of Mississipp
489
Choteau v. Raitt
562
V. Clarke 196
201. 207
Christian v. Combe
212
V. Courtney
84, 142
Christie v. Bishop
178
V. Gannon
408', 430
Church V. Hubbart 4,
487,
488
614
V. Robinson
551
V. Shelton
171
, 195
V. Safferey
435
Churchill v. Suter
379
385
V. Wyburn
361
V. Wilkins
58
Clarkson v. Woodhouse 139
141, 143
Churchman v. Smith
118
Clary v. Grimes
189
Cilley V. Tenny
303
Clawson v. Eichbaum
38
Cincinnati v. White
207
Claxton V. Dare
189
Cist V. Zeigler
531
V. Swift
533
Citizen's Bank v. Nantucket
Clay t). Langslow
181
Steamboat Co.
426
V, Stephenson
320
City. Bank v. Adams
281
V. Williams
241
City Bank of Baltimore
V. Bate-
Clayes v. Ferris
469 a
man
113,
332
,452
Clayton v. Gregson
280
City Council v. King
331
Clealand v. Huey
164, 165
City of London v. Gierke
139
Cleave v. Jones
237
Claffin V. Carpenter
271
Cleaveland v. Flagg
301
Clagett V. PhUlips
240 a
Cleaves v. Lord
68
Clancy's case
373
Cleveland v. Burton
200
Clapp V. Balch
73
Clement v. Brookes
457
ij. Mandeville
389
V. Durgin
302, 304
V. Tirrell
26
Clementi v. Goulding
5
Clargcs V. Sherwiu
539
Clements v. Hunt
103
Clark V. Alexander
174
Clementson v. Gandy
288
V. BarnweU
805
Clerke v. Isted
69
V. Bigelow
440
Clermont v. Tulidge
5al
V. Bradshaw
112
Cleves V. Foss
269
». Carter
426
Clifford V. Hunter
445
V. Courtney
576
V. Parker
564
V. Eckstein
564
V. Turrill
285, 304
V. Faunce
17
Clinan v. Cooke
269
V. Fletcher
563
Cline V. Little
427
c. Gifford
284
Clinton v. Hooper
296
V. Gleason
112
Clipper (The) v. Logan
Close V. Olney
440
V. Gray
66, 69
451
XXVI
INDEX TO CASES CITED.
Section
SeotioD
Clothier v. Chapman
62,
137, 145
Commonwealth v. Abbott
49
Cloutman v. Tunison
495
V. Anthes
49
Clough V. Bowman
289
V. Bachelor
369, 370
Cluggage V. Swan
116, 120
V. Baird
331
Clunnes v. Pezzey
37
V. Beckley
65
Coates V. Birch
241, 245
V. Bigelow
97
Cobb V. Newcomb
40
V. Bolcom
51S
Cobleigh v. Young
20
V. Bosworth
381
Coburn v. Odell
451, 451 a
V. Briggs
341
Cochran v. Ammon
358
V. Bullard
284
Cocks V. Purdy
487
V. Buzzell
52, 371,
Cockshott V. Bennett
172
449
Coe V. Hutton
197
V. Byron
45';
Coffin V. Jones
254, 338
V. Call
199
Coghan v. Williamson
572
V. Carey'
577, 580
Cogswell V. Dolliver
118
V. Casey
161 b
Cohen v. Templar
246
V. Castles
573 6
Coit V. Milliken
4,479
V. Chase
484
V. Starkweather
288
V. Churchill
461
^ V. Tracy
112, 174
V. Clark
816
Colbern's case
340
V. Cobb
138
Colclough V. Smith
301
V. Dame
373
Cole V. Anderson
118
V. Dana
254 a
V. Cole
192
V. Davidson
563
V. Hawkins
316
V. Downing
382, 501,
V. Jessup
437
513
Cole's Lessee v. Cole
376
V. Drake
229, 247
Coleman v. Anderson
20,46
V. Dudley
265
In re
272
V. Eastman 197 a, 358,
V. Southwick
101
363
, 445, 681
V. Wolcott
349
«. Eberle
233
Coles V. Trecothick
269
V. Eddy
81c
Collett V. Lord Keith
193
V. Elisha
537
Collier V. Nokes
192
V. Emery
91, 661
V. Simpson
440
V. Ford
513
Collins V. Bayntun
571
V. Ereely
316
V. Blantern
284
V. Frost
414
V. Godefroy
310
V. Galavan
434 a
V. Lemasters
437
V. Garth
49
V. Matthews
602
V. Gibson
158
V. Maule
84
V. Goddard
449
V. McCrummen
420
V. Green
375, 376,
Colpoys V. Colpoys
288
421, 605
Colsell V. Budd
39
V. Hargesheimer 430
Colson V. Bonzey
484, 494
». Harman
220, 221
Colt V. Miller
66
V. Harvey
197
Columbia (Bank of) v
. Magruder 423
V. Harwood
108
Columbia Ins. Co. v. I
awrence 2
V. Hawkins
34, 81 c.
Columbia Man. Co. v.
Dutch
353, 356
462
Colvin V. H. M. Proc.
Gen.
30
V. Hill
252, 366
Combe v. Corp. of London
240 a
V. HiUs
370
V. Pitt
210
V. Horton
537
l/Ombs V. Winchjester
462
V. How
223
Dommercial Bank of
Albany
V. Hunt
449
V. Hughes
387
V. Hutchinson 367
Commercial Bank of Buffalo
V. Ingraham
V. JeS&ies
469
V. Kortwright
668 a
40, 197 a.
Commercial Bank of Natchez
681
V. Smith
206
V. Kenney
197, 199
INDEZ TO CASES CITED.
XXVll
Commonweahb v. Kimball
V. King
V. Knapp
Section
79
158
200, 229,
231,379
V. Kueeland 5
V. Lahey 79
V. Littlejohn 484
V. Manson 335, 363
V. Marsh 330, 334,
353, 357, 363
V. Maxwell 78
V. MoKie 81 b
V. MoPike 108, 158
V. Montgomery 108
V. Morey 219, 220,
223
B. Mosler 222
V. Moulton 412
V. Murphy 54, 462
V. Norcross 88
V. Parmenter 65
V. PauU 403
V. Pease 284
V. Pejepscot Pro-
prietors 24
11. Phillips 501
V. Porter 49
V. Richards 165
». Koark 509
1). Bobbins 341
V. Robinson 335, 407
V. Rogers 81 c, 373
V. Sackett 456 a
V. Samuel 78
V. Shaw 451, 456 ffl, 457
V. Shepherd 253, 344
V. Slocum 275
V. Smith 252, 370
V. SneU 362
V. Stow 80
V. Taylor 223
V. Thurlow 79
V. Tilden 252
V. Tuckermau 229
V. Tuey 74
V. Turner 53
V. Vass 158, 159
V. Waite 414, 423
V. Walden 34
V. Webster 13 a, 18,
54, 65, 81 6, 576
v. Welch 442
V. Wilson 440, 469,
497
V. Woelper 493
V. York 18, 81 b
Comparet v. Jernegau 489
Comstock V. Hadlyme 74, 75, 76. 77,
409
Comstock V. Paie
Section
392, 430
V. Rayford
Connecticut v. Bradish
392
331
Conover v. Bell
452
Conrad v. Griifey
462
Conyers v. Jackson
71
Cook V. Ashmead
117
V. Booth
293
V. Brown
462
V. Loxley
V. Moore
207
53
V. Parsons
272
V. Remington
V. Soltan
349
46
V. Stearns
270
V. Totton
21
V. Wood
84
Cooke V. Curtis
469
V. Jenner
533
V. Wilson
6
V. Woodrow
572, 575
Coolejf V. Norton
Coolidge V. Learned
113, 450
17
V. New York Firemen's
Ins. Co. 484
Coombs V. Coether 139, 484
V. Winchester 52, 449
Coon V. The State 215
V. Swan 239 a
Cooper V. Socket 564, 580
V. Gibbon 37
V. Granberry 40
V. Marsden 572
V. Morrell 118
V. Mowry 207
V. Shepherd 533
V. Smith 201, 268
V. Wakley 76
V. Whitehouse 73
Coote V. Berty 64
Cope V. Cope 28, 253, 344
Copeland v. Tomlin 171
V. Watts 246
Copes V. Pearce 103
Copp V. Upham 452
Corbett et al. v. Barnes 533
u. Corbett 75
Corbin v. Adams 113, 284
Corinth v. Lincoln 108, 192
Cornelius v. State 108
Cornell v. Green 165
■0. Vanartsdalen 338
Cornish v. Pugh 341
• u. Searell 207
Cornville v. Brighton 108
Cornwall v. Isham 176, 333
V. Richardson 55
Corporations (the case of) 46
Corps V. Robinson 197
XXVIU
INDEX TO CASES CITED.
Section
Corse V. Patterson
334
Corseii V. Dubois
246
558
Corser v. Paul
197
Cort V. Birkbeok
139
Corwein «. Hames
331
Cory V. Bretton
192
Cossens v. Cossens
23, 26
Ux parte
451
Cossham v. Goldney
395
Coster V. Baring
559
C'ostigan v. Mohawk & Hudson
K. Co.
74
Cotes V. Davis
185
Cottle V. Payne
39
Cotton V. James
76
V. Luttrell
358
361
V. Witt
310
Cottrill V. Myrick
302
440
-Couch V. Meeker
283
284
Coulson V. Walton
564
Counden v. Clarke
289
Courteen v. Touse
435
Courtnay v. Hoskins
544
Covanhovan v. Hart
163
Coveney v. Tannahill
245
Covington, t&c., R. R. Co. v. In-
gles 113
Cowden v. Reynolds 443
Cowling V. Ely 179
Cowper V. E. Cowper 37
Cox V. Allingham 518
!). Brain 205
V. Copping 474
V. Couveless 563
V. Davis 572
V. Hill 452
V. Morrow 488 a
V. Painter 73
V. Parry 27
V. Williams 385
Coxon V. Lyon 61
Coyc V. Leach 30
Coyle V. Coyle 84
Crabtree v. Clark 564
' Crafts V. Hibbard 301
Craib v. D'Airth 173
■ Craig V. Brown 605, 506
V. Cundel 392
V. State 461
Craigin v. Carleton 527 a
Crane v. Marshall 109, 570
V. Morris 23
Crary v. Sprague 163
Craven's Case 65
Cravin v. Shaird 118
Crawford v. Morrell 66
V. Spencer 281
Cray v. Halls 201
Creamer v. Stephenson 285
Section
Crease v. Barre.t 103, 128, 130, 136,
139, 153, 189
Creeby v. Carr 445
Creed, M re 41
Ci'enshaw y. Davenport 51 a
Crew V. Blackburn 476
V. Saunders 475
Criddle v. Criddle 190
Crippen v. Dexter 469
Crisp V. Platel _ 240
Crispin v. Daglioni 546 6
V. Williamson 60
Critchlow V. Parry 196
Crocker v. Crocker 289
Crofton V. Poole 195
Crofts u. Marshall 280
Cromack v. Heathcote 240, 241
Cronk V. Frith 572
Crosby v. Percy 292, 572
V. Wadsworth 271
Cross V. Kaye 92, 195
!). Mill 485
Crossfield's Case 255
Croudson v. Leonard 5, 541
Croughton v. Blake 142
Crowley v. Page 52, 81, 449, 462
Crowninshield v. Crowninshield 74,
75, 76
Crowninshield's Case 111
Crowther v. IIop^70od 373
Cubbison v. McCreary 369
Cudlip V. Ruiidle GO
Culkin's Case 65
Ciunberland Bank «. Hall 564
Cummin v. Smith 195
Cumming v. French 192
Cummings v. Arnold 302, 304
Cmidell V. Pratt 454, 456, 459
Cunhffe V. Sefton 672, 574
Cunningham v. Knight 428
V. Otis 320
Cupper V. Newark 363
Curren v. Crawford 117
Currie v. Child 572
Curry v. Lyles 26
V. Raymond 485
Curtis V. Belknap 573 6
V. Central Railroad 323
V. Graham 368, 389
V. G-roat 633
V. March 488 a
V. Rickards 38
V. Strong 369, 370
V. Wheeler 74
Curzon u. Lomax 130, 139
Cushing !). Billings 74
Cushman v. Loker 375, 420
Cussons V. Sldnner 569 a
Cutbush V. Gilbert 84, 116, 120
INDEX TO CASES CITIiD.
XXIZ
Section
271
488 a
187
292
245
Cutler V. Pope
V. Wright
Cutter V. Newling
u. Powell
Cutts V. Pickering
Cutts, in Error, v. United States 666
Cuyler V. McCartney 190
D.
Da Costa v. Jones 253
Daggett V. Shaw 109
Dailey v. N.Y. & jST.H. Eailw. 156
Daily v. State 5
Dale V. Humfrey 282 a
Dalison v. Stark 90
Dalrymple v. Dalrymple 488
Dalstdn v. Cotesworth 37
Dan et al. v. Brown 172, 174, 176,
278
Dana v. Fielder 292
Daniel v. Daniel 239 a
V. North 17
V. Pitt 182
■o. Wilkin 142, 145
Daniels v. Conrad 449
o. Potter 111, 176
Darby v. Ouseley 201, 439
Dartmouth College v. Woodward 331
Dartmouth (Countess) v. Roberts 189
Dartmouth (Lady) v. Roberts 46, 512
Davenport v. Freeman 385
V. MoKinnie 669
V. The Commonwealth 49
David V. Moore 348
Davidson v. Bloomer 572
V. Cooper 568
Davies v. Davies 408, 463
V. Humphreys 115, 152
V. Lewis 137
V. Lloyd 116, 147
V. Lowndes 105
V. Morgan 135, 154, 333, 395
V. Morris 333
V. Pierce 109, 147, 189
V. Ridge 176
V. Waters 241
Davis V. Barr 421
V. Barrett 320
V. Barrington 281
V. Campbell 109
V. Carlisle 564
& Carter's case 374
V. Dale 445
V. Dinwoody 334, 340
V. Fuller 115, 130
V. Jenney 664
II. Mason 75, 440
Davis V. Rainsford
V. Robertson
V. Salisbury
V. Shields
V. Spooner
■u. State
V. Todd
V. Wood
Daws V. 81ied
Davlin v. Hill
Dawkins v. Silverlock
Dawson v. Coles
Day V. Mooi-e
Section
301
269
349
268
397, 568
164, 165
.568
99, 524
187
283
5
173
613
301
Dayrell v. Bridge 510
Deacle v. Hancock 135
Deacon's case 250
Deady v. Harrison 180
Dean, &c. of Ely v. Caldecott 150
V. Dean 266
Dearborn v. Cross 302, 304
Deas V. Darby 118
De Bode's case 109
De Cosse Brissac v. Rathbone 546/
Decker, Ex parte 568 a
Deering v. Sawtel 385
De la Chaumette w. Bank of
■England 81 a
Delacroix u, Bulkley 303
Delafleld v. Freeman 392
V. Hand 503
Delesline v. Greenland 27, 184
Dellone v. Rehmer 387
Deloah v. Worke 610
Delogny t). Reutoul 192
Den V. Clark 566
V. Downam 437
0. Herring 146
V. Johnson 341
V. Oliver 208
V. Southard 145
V. Vreelandt 503
Denn v. Cornell 24
V. Fulford 607
V. McAlister 84
1}. Page 301
V. Spray 139
V. White 185, 341
Dennett u. Crocker 87
u. Dow 443
V. Lawson 426
Denning v. Roome 484
Dennis v. Codringtou 237
Dennis's case 225
Denslow v. Fowler 669
Depeau v. Hyams 416
Depue u. Place 581
Derby v. Gallup 440 a
De Rosnie v. Fairlie 390
c*
XXX
INDEX TO CASES CITED.
Section
Section
De Rutzven v. Farr
150
, 164
Doe V. Burdett
570
Desborough v. Kawlins
242
, 244
V. Burt
287
Descadillas v. Harris
416
V. Campbell
109
Deshou V. Merchants' Ins. Co.
469
V. Caperton
272
Despau v. Swindler
De Symonds v. De la Com-
6
V. Carpenter
272
394
V. Cartwright
89, 90, 160, 484,
Devonshire (D. of) v. Lodge
293
493
Dewdney v. Palmer
421
V. Catamore
664
Dewey v. ])ewey
272
672
V. Chichester
287, 291, 301
V. Field
207
V. Clifford
560
De Whelpdale v. Milburn
189
, 210
V. Cole
189
Dewhurst's case
228
V. Cooke
46
De Wolf V. Strader
239 a
V. Coombs
81
Deybel's case
6
V. Coyle
94
Dezell V. OdeU
207
V. Davies
49, 103, 570
Dicas V. Lawson
319
V. Davis
272
Dickenson v. Coward
196
V. Deakin
41, 570
V. Dickenson
192
384
V. Derby
164
V. Fitchburg
440 a
V. Durnford
5'69
V. McCraw
519
V. E. of Jersey
287
V. Prentiss
399
V. Edwards
73
V. Shee
445
447
V. Errington
73
V. Valpey
207
V. Flemming
107
Diekerman v. Graves 253 a,
835
344
V. Ford
284, 285
Digby V. Stedman
116
V. Foster
164, 197
V. Steele
97
V. Freeland
286
Dillon V. Dillon
440 a
V. Galloway
301
V. Harris
288
V. Gilbert
84, 241
Dillon's case
220
d. Gord V. Needs
290
Dimiok v. Brooks
648 a
V. Green
109
Di Sora (Duchess) v. Phillips
514 a
V. Greenlee
84
D'Israeli v. Jowett
484
V. Grey
561
Ditchburn v. Goldsmith
263
V. Griffin
41, 103
Divol V. Leadbetter
195
207
V. Gwillim
277
Dix V. Otis
281
V. Harris
241
Dixon V. Cooper
115
416
V. Harvey
87
V. Hammond
207
V. Hathaway
574
V. Sinclear
630
V. Hawkins
113
V. Vale 451, 451 a
V. Hertford
246
Doak V. Wiswell
532
V. Hilder
5
Dobbs V. Justices
108
V. Hirst
568
Dodd v. Norris
54
451
V. Hodgson
560
Doddington v. Hudson
409
V. Holton
287
Doddington's case
26
V. Hubbard _
291, 301
Doe V. Allen
197,
291
V. Huddart
535
V. Andrews
245
V. Hurst
46
V. Arkwright
484
493
V. Huthwaite
288, 289, 291
V. Askew
484
V. Jack
84
V. Austin 109,
189,
207
V. Jesson
41
V. Barnes 7f
,92,
493
V. Johnson
78, 335, 573
■u. Bell
263
V. JoinviUe
288
a. Benson
280
V. Jones
"109, 147, 189
V. Beviss
800
V. Keeling
V. Keley
142
V. Beynon
142,
291
559
V. Biggs
197
V. Kemp
53 a
V. Bingham J65,
406,
568
V. Lambly
280
V. Bird
186
V. Langdon
241, 246
». Brawn
83
V. Langfield
109
t'. Bray
104
485
V. Lea
208
INDEX TO CASES CITED.
XXXI
Seotioa
Section
Doe V. Lewis
558
Doe V. Taylor
291
V. Lloyd
24
d. Taylor v. Roe
145
V. Long
73
V. Thomas
145, 246
V. Ld. Geo. Thynnf
154
V. Tooth
333, 391
V. Lyford
301
V. Turford 40,
115, 116, 120,
V. Maisey
389
147
V. Manifold
272
V. Tyler
151, 386, 390
V. Martin
277
287, 291
V. Vowels
116, 151
V. Mason
130
V. Wainwright
180
V. Mew
518
V. Watson
97
V. Michael
154
V. Webber
109, 110
V. Miles
97
V. Wheeler
286
V. Morgan
289
V. Whitcomb
115, 151, 154
V. Murray
166
V. Wilde
406
V. Nepean
41
V. Wilkins
571
V. Newton
578, 580
V. Williams
147, 392, 406
V. Palmer
564
V. WoUey
21, 67U
V. Passingham
144
V. Wombwell
197
V. Payne
25, 109
V. Young
92
V. Pearce
142
Doherty v. Clark
28
V. Pegge
207
Doker v. Hasler
254, 337
V. Pembroke (E. of)
104
l^olby V. lies
211
V. Penfold
42
Bolder v. Ld. Huntingfield 6
V. Perkes
273
Dole V. Allen
86
V. Perkins
436
437, 438
Donaldson v. Jude
510
V. Pettett
109, 189
V. Winter
609
V. Phelps
144
Doncaster ». Day
163
V. Phillips
141
Donelson v. Taylor
421
V. Preece
406, 534
Donn V. Lippman
646
V. Pulman
558
Donnel v. Jones
435
V. Pye
197
Donnelly v. State
445
V. Randall
103
Donnohoo v. Brannou
506
V. Keed
46
Doohttle «. Holton
40
V. Richards
186
Doorman v. Jenkins
108
V. Rickarby
109, 189
Dorlon v. Douglass
251
V. Roast
291
Dorne v. Southwork Man. Co. 1 14
V. Roberts
142
Dorr V. Penno
69
V. Robsou •
116
147, 153
V. Munsell
284
V. Ross 73, 84
245
560, 582
Dorset (D. of) v. Ld. Hawarden 292
V. Rowe
73
Dorsey v. Dorsey
189, 545
V. Rowlands
81
Doty V. Wilson
421, 429
V. Samples
21
Douglas V. Hart
118
V. Soaton
241, 484
V. Saunderson
104, 349, 675
V. Shelton
23
Douglass V. Branch Bank o
V. Sisson
52, 130
V. Mitchell
44
V. S Iceman
• 136
V. Reynolds
288
V. Smart
75
V. Spears
268
V. Smj-the
207
V. Tousey
64, 55, 461
V. Soraerton
561, 562
Dover v. Marston
378
V. Stacy
154
Dow V. Sawyer
116
V. Staple -
46
Dowden v. Fowle
180
V. Statham
23
Downer v. RoweU
436
V. Steel
k 210
Downs 11. Cooper
26
V. Stephenson
469
Dows V. McMichael
531
V. Stiles
570
Dowton V. Cross
181
V. Suckerniore
576,
577, 579,
Drake v. Henley
385
580
V. Merrill
532
V. Sybourn
46,
212, 551
V. Mitchell
633
V. Tarver
678
V. Mooney
40
XXXll
INDEX TO CASES CITED.
Section t
Section
Dranguet v. Proudhomme
74
Duval V. Bibb
26
Draper v. Garratt
60
Dwjght V. Linton
288, 322
V. Sykes
180
Dwinel v. Pottle
117
Drayton v. Dale
207
Dwinell v. Larrabee
661
V. Wells
163
Dwyer v. Collins
245
Drennen v. Lindsey
462
Dyer b. Ashton
205
Drew's case
219
V. Morris
432
Drew V. Wood
450
V. Smith
488
Drinkwater v. Porter
140
V. TymeU
348
Drouet v. Rice
20
Dyke v. Aldridge
180
Drown V. Smith
207
Dykers v. Town»end
268
Drowne v. Stimpson
349
Dyson v. Wood
613
Drummond v. Attorney-General
280
•17. Magruder
506
V. Prestman
187
E.
Drummond's case
156
Drumright v. Pbilpot
112
Eagleton v. Gutteridge
568
Du Barre v. Livette
239
247
Eames v. Eames
42
Du Bost V. Beresford
100
101
Earle v. Baxter
20
Duchess of Bangston's case
248,
436,
V. Lewis
142
523
V. Picken 45,
200, 203
Ducket V. Williams
320
V. Sawyer
118
Ducoigne v. Sclireppel
118
Easby v. Aiken
118
Dudley v. Grayson
484
Eason v. Chapman
461
V. Summer
572
East V. Chapman
451
Duel V. Fisher
390
East India Co. v. Campbell
451
Duffield V. Scott
180
V. Evans
349
DufEn V. Smith 240
241
, 245
V. Goasing
416
Dugan V. Seekright
301
Eastman v. Bennett
108 a
Duke V. Pownall
427
V. Cooper
532
Dunbar v. Harden
572
, 575
V. Martin
105
V. Mulry
128
V. Tuttle
207
Duncan v. Beard
142
V. Winship
167, 418
V. Hodges
568 a
Edge V. Pemberton
52
V. Mlckleham
389
Edgell V. Bennett
254
Dundas v. Ld. Weymouth
69
Edgerly v. Emerson
279, 305
Dunham's Appeal
440
Edgerton v. Wolf
176
Dunham v. Branch
426
Edie V. East India Co.
5
V. Riley
559
Edmiston u. Schwartz
506
Dunlap V. Waldo
506
Edmonds v. Lowe 391
401, 416
Dunn V. Aslett
444
,467
V. Rowe
371
V. Murray
532
V. Walter
435
V. Paokwood
386
Edward Altham's case
301
V. Snell
190
Edwards v. Crock
102
V. Snowdon
41
V. Matthews
76
V. The State
158
V. Weeks
302
V. Whitney
118
Egg V. Barnet
38
Dunning v. Roberts
269
Eggleston v. Speke
Eicke V. Nokes
179
Dunraven v. Llewellyn
145
241, 245
Dupuy V. Truman
93
,437
Eld V. Gorham
480
Durell V. Bederley
441
Elden ». Keddell
519
Durham (Bp. of) v. Beaumont
469
Elder v. Warfield
118
Durkee v. Leland
239 a
Elderton's case
6
V. Vermont Cen':ral Rail-
Eldridge v. Knott
20,45
road
84
Eldridge's case
217
Durora's case
65
Elfe V. Gadsden
286
Durston v. Tutham
60
Elkin V. Janson
80
Dutton V. Gerrish
281
Elkins V. Hamilton
108
V. Woodman 112, 177, 467, 532
EUicott V. Pearl
137. 146
INDEX TO CASES CITED.
XXXUl
Elliott ». Evans
V. Heath
V. Piersol
V. Porter
V. Smith
EUis V. Ellis
V. Park
V. Saltau
V. Smith
V. Thompson
V. Watson
V. Willard
Ellison V. Cookson
EUmaker v. Bulkley
Elsam V. Faucett
Elston V. Wood
Elting V. Scott
Elton V. Larkins
Elwood u. Deifendorf
Ely V. Ely
Emerson v. Blonden
v. Brigham
V. Fisk
Section
6
164
103, 104, 132
533
207
86
5
249
323
292
210
305
296
445, 447
54, 102
179
212
186, 449
189, 420
564
185
398
562
V. Lowell Gas Light Co. 440' a
V. Murray 564
V. PrOYJdence 420
V. Tolman 670
V. White 103
Emerton v. Andrews 396
Emery v. Berry 489
V. Fowler 165, 523
V. Grocock 46
V. Twombly 472
Emmerson v. Heelis 269, 271
Emmett v. Butler 356, 358
Emmons v. Hayward 75
V. Littlefield 26
V. Oldham 20
Empson v. Griffin 73
England v. Slade 25
Engles V. Bruington 572
English V. Sprague 513
Ennis V. Smith 514, 525
Enos V. Tuttle 108
Ensign V. Webster 212
Enterprise (The) . 113
Ephraims v. Murdoch 164, 165
Ereskine v. Murray 5
Ernest!). Brown 73
Erskine v. Boyd 322
V. Plummer 271
Estill V. Taul 530, 531
Estrella (The) 4
Eustis V. Parker 175
Evans v. Birch 80
V. Eaton 389, 421, 423, 552
V. Getting 497
V. Gibbs 354
V. Gray 423
Section
Evans v. Hettiok
366, 389
V. King
69
V. Morgan
107
V. Rees 139
313, 319
V. Roberts
271
V. Smith
341
V. Tarleton
648
V. Yeatherd
396
Everett v. Lowdhan
432
Everingham v. Roundell
84
Ewer V. Ambrose
442, 443
Ewins V. Gold
392
Exchange Co. v. Boyce
498
Ex parte ICip
175
Fabens v. Tirrell
Fabyan v. Adams
Facey v. Hurdon
Fairchild v. Dennison
Faircloth v. Jordan
81 a
322
49
118
560
Fairfield Turn. Co. v. Thorp 332
Fairlie v. Uenton 198, 199
V. Hastings 113, 114
Fairmaner v. Budd 212
Fairtitle v. Gilbert 24
Falkner & Bond's case 217
V. Earle 293
Falls V. Belknap 175, 331
Falmouth (E. of) u. Robbins 564
(Ld.) «. George 405
V. Moss 248
V. Thomas 271
Faner v. Turner 108
Farley v. King 552
Farmers' Bank v. Whitehill 116, 116,
147
& kech. Bank u. Boraef 437
V. Day 299
V. Ward 489
Farnsworth v. Briggs 518, 519
l<arr v. Swan
Farrant v. Spencer
Farrar v. Farrar
V. Merrill
V. Stackpole
485
288
265
46
286, 293
V. Warfield 440
Farrow v. Bloomfield 463
Farwell «. Hillard 539
Fassett v. Brown 572
Faucort v. BuU 396
Faunce u. Gray 176
Faxon u. HoUis 117,118
Fay v. Prentice 5
Fazakerly v. Wiltshire 6
Feemster v. Ringo 5
Fellows V. Williamson 108
XXXIV
INDEX TO CASES CITED.
Section
Pelter v. MuUiuer 510
Fenn v. Granger 330, 353, 354, 452
Fenner v. Lewis 187
Fenno v. Weston 199
Fenwick v. Bell 440
V. Read 154
V. Reed . 239
V. Thornton 179
Fenwick's case 251
Ferguson u. Harwood 56, 68, 69, 606
V. Mahon 546
Fernandez, ex parte 451
Fernandis & Hall v. Henderson 369
Ferrer's case 19
Ferrers v. Arden 533
V. Shirley 577
Fetherly v. Waggoner 570
Fiedler v. Smith 66
Field V. Holland 178
V. Mitchell 394
V. Snell 428
V. Winslow 69
Fife «. Commonwealth 219
Fifield V. Smith 422
Filmer v. Gott 284
Finch V. Bp. of Ely 474
Finn's case 163
Firkin v. Edwards. 662
Fischer v. Morse 829
Fish V. Hubbard 300
V. Skut 34
V. Travers 75, 76
Fisher v. Bartlett 207
V. Dane 18
V. Kitchingman 510
V. True 190
V. Tucker 112
V. WiUard 421
Fiske V. Ronald 451
Pitch V. Bogue 349, 558
V. Hill 342
V. Smallbrook 375
Fitchburg Bank v. Greenwood 288
Fitler v. Shotwell 485, 493
Fitzgerald v. Elsee 572
V. Fauconberg 564
Fitzhugh V. Wiman 305
Fitzwalter Peerage 580
iTlagg V. Mann 421
V. Mason 109
(Flanders v. Davis 38 a
Fleming v. Gilbert 302, 304
V. Gooding 207
Fletcher v. Braddyl 40
V. Froggatt 201
V. Willard 305 a
Flight, ex parte 285
Flindt V. Atkiua 514
Flinu V. Calow 281
SectioD
Flinn v. M'Gonigle 558
Flint V. Allyn 356
Flourenoy v. Durke 548
Flower v. Herbert 204, 207
Floyd V. Bovard 445
V. Ricks 5
Fogg V. Child 114
V. Dennis 581
Folkes V. Chadd 440
FoUain v. Lefevre 6
Folsom V. Manchester 252 a
V. Mussey 304
Fonnereau v. Poyntz 288
Foot V. Glover 532
V. Tracy 65
Foote V. Cobb 672
u. Hayne 239
Forbes v. Wale 21, 144, 349, 570
Ford V. Ford 461
V. Gray 23
Forrest v. Shores 26
Forrester v. Pigou 167, 392, 395, 418
Porshaw v. Lewis 239 a, 241, 559
Forster v. Hale 266
Forsyth v. Ganson 176
Forsythe v. Norcross 117
Port V. Clarke 104, 204
Portescue & Croak's case 349
Poss V. Haynes 466
Poster V. Alanson 303
V. Beals 212
V. E. of Derby 536
V. HaU 237, 240, 241
V. Jolly 281, 304
V. Mackay 558
V. Pierce 451
V. Pointer 562
V. Shaw 166, 539
V. Sinklcr 118
V. TruU 621
Poster's case 65
Fotheringham v. Greenwood 387, 395
Foulkes V. Selway 54, 101
Pouts V. State 220
Fountain v. Coke 347
V. Young 241
Fowler v. Coster 75, 76
V. Etna Ins. Co. 64
V. Merrill 323
V. Savage 639
Fox V. Adams 347
V. Clifton 207
V. Jones 472
V. Keil 569
V. Whitney 385
V. Widgery 25
Foxcroft V. Nevens 187, 356
France v. Lucy 662
Franchot v. Leach 284
INDEX TO CASES CITED.
XX5V
' Section
Francia'a case 217, 235
Franklin Bank v. Freeman 416
Fraser «. Harding 430
V. Hopkins 494
u. Marsh 179, 427
Frayes v. Worms 546 g
Frazier v. Laughlin 356
Fi-oar u. Evertson 172, 829, 347, 353
u. Hardenbergh 271
Free v. Hawkins 281
Freeholders, &c. v. State 20
Freeland u. Heren 197
Freeman v. Arkell 252
V. Brittin 385
V. Lucket 387
V. Morey 40
I). Phillips 132, 135, 139
V. Thayer 20
V. "Walker 210
French v. French 560
V. White 53
Friedlander v. London Assur. Co. 443
Frith V. Barker 280
Frontine v. Frost 80
Frost u. Everett 304
v. HoUoway . 459
V. Shapleigh 521
V. Spaulding 301
Frye v. Barker 118, 174
V. Gragg 164
FuUer v. Crittenden 212, 305
V. Hampton 175, 192
V. Rice 322
V. Wheelock 417
Fulton V. Hood 440
Fulton Bank v. Stafford 447
Furber v. Hilliard , 362
Furbush V. Goodwin 305, 469 a
Furly V. Newham 312, 320
Furman v. Ray 118
Furneaux v. Hutchins 52
Furneaux's case 65
Fursden v. Clogg , 113, 149, 152
Fyler v. Givens 268
Fyson v. Kemp 508
Gabay ». Lloyd
292
Gainsford v. Grammar
245
Galbraith v. Galbraith
423
Gale w. Lincoln
197 a
V. Nixon
268
Galena, &c. R.R. Co. v. Fay 108, 462
Gandolfo v. State 55
Garden v. Creswell 319
Gardere v. Columbian Ins. Co. 514
Gardiner v. Croasdale 61
Gardiner v. McMahon
Gardner «. Way
Garey v. Nicholson
Garlook v. Geortner
Garnett v. Ball
Garrels v. Alexander
Garrett v. Stewart
Garrott v. Johnson
Garth u. Howard
Garwood u. Dennis
Gass V. Gass
Section
113
118
201
38
184
577
26
165, 532
113
24
175
V. Stinson 421, 445, 461, 554
Gathercole v. Miall 558
Gaul V. Fleming 76
Gay V. Bowen 112
Geach V. Ingall 73, 76
Gebhardt v. Shindle 430
V. Skinner 365
Geery v. Hopkins 474
Gelston v. Hoyt 641, 643
Gening v. The State 79
George u. Joy 306 a, 436
V. Kimball 409
V. Pierce 167
V. Sargent 356
V. Stubbs 423
V. Surrey 577
V. Thompson 562
Gerding v. Walter 38
Gerrish v. Cummings 366, 357
V. Sweetser 192
V. Towne 287
Getchell ». Heald 174
Geter «. Martin 119
Gevers*. Mainwaring 394, 417
Geyer u. Irwin 316
Gibblehouse v. Strong 109, 190
Gibbon v. Coggan 97
V. Featherstonhaugh 38
Gibbon's case 484, 493
Gibbons ». Powell 562
Gibbs V. Bryant 368, 427
Gibney's case 229
Gibson u. Hunter 53
V. Jeys 80
V. McCarty 362
V. Peebles 121
V. Stevens 6
V. Waterhouse 78
V. Winter et al. 173
Gilbert v. Bulkley 265
V. Manchester 430
V. Thompson 532
Gilchrist v. Bale 102, 341
Gildersleeve v. Caraway 165
V. Mahouey 201
Giles V. O'Toole 440
Gillard u. Bates 244
Gilleland v. Martin 41
XXXVl
INDEX TO CASES CITED.
Section
Section
Gillet V. Sweat
564
Gortou V. Hadsell
49
Gilliam v. S,tate
461
Gosling V. Birnie
207
GiUies V. Smither
84
Goss V. Ld. Nugent
302
Gillighan v. Tebbetts
112
V. Tracy
168
, 572
Gillilaud V. Sellers
6
V. WhatlingtOE 116.
147.
149,
Gilmore v. Bowden
348
187
Gilpin V. Vincent
333, 388
Gough !). Cecil
575
Givens v. Bradley
55
V. Gough
V. St. John
57
V. Filer
268
54
Glascock I). Hayes
532
Gould V. Barnes
69
Gleadow J). Atlcin 115, 116,
122, 149,
V. Crawford
166
153
V. James
331
Gleason v, Mc Vicar
60
V. Jones
578
Glen V. Grover
260
V. McCarty
560
Glenn v. Rogers
562
V. Norfolk Lead Co.
277,
416,
Glossup V. Pole
656
462
Glubb V. Edwards
572
V. Oliver
205
Glynn v. Bank of England
117, 121
Goulding v. Clark
540
Goblet V. Beechy
288
Governor a. BeU
498
Goddard v. Gardner
239 a
V. Daily
426
V. Ingram
112
V. Gee
420
Goddard's case
24
V. Jeffreys
498
Godefroy v. Jay
508
V. McAffee
498
Godfrey «. Norris
572
Gower V. Emery
245
Goldie V. Gunston
207
Grafton Bank v. Moore
177
V. Shuttleworth
186
Gragg D..Prye
-
66
Goldshede v. Swan
285
Graham v. Whitely
540
Goldsmith v. Bane
581
Granger v. Warrington
237
V. Picard
64
Grant v. Jackson 177
204
210
Goldstone v. Davidson
513
V. Maddox
292
Goltra V. Wolcott
253 a
V. McLachlin
541
Gooch V. Bryant
564
V. B-idley
320
Goodacre v. Breame
396
V. Thompson
440
Goodell V. Smith
96, 281
Grantham v. Canaan
39
Goodfellow V. Inslee
• 566
Graves v. Joice
635
Goodbay v. Hendry 95, 392
422, 426
V. Key
207
212
Goodhue v. Bartlett
323
Gray V- Davis
601
Goodier v. Lake
558
V. Gardiner
46
Goodinge v. Goodinge
288
V. Goodrich
108
Goodman v. Harvey
81a
V. Harper
280
296
V. James
506
V. Palmer
174
177
Goodrich v. Longley
281, 286
V. Pentland
261
Goodright v. Hicks
65
V. Pingry
631a
v. Moss 103, 134
253, 344
Grayson v. Atkinson
272
V. Saul
106
Great Falls Co. v. Worcestei
145
V. Straphan
568 a
Great Northern E.E. Co. v.
Har-
(iroodtitle V. Baldwin
45
rison
287
V. Braham
76, 434
Greaves v. Hunter
681
V. Clayton
443
Greely v. Smith
632
u. Southern
301
Green v. Brown
41
V. Welford 347
419, 429
V. Caulk
436
Goodwin V. Appleton
6
V. Chelsea
670
V. Hubbard
266
V. Howard
288
V. West
311
V. Jones
392
Goodwright v. Downshire
288
V. New River Co.
394
627
Gore V. Elwell
509
V. Pratt
118
Gorham v. Canton
108
V. Proude
609
V. Carroll
385, 452
V. Rugely
488 a
Gorton V Dyson
518
V. Salmon
392
INDEX TO CASES CITED.
xxxvu
Section
Section
Green v. Sutton
356
Haddrick v. Raine
49
V. Waller
5
Hadduck v. Wilmarth
385
Greene v. Olarke
632
Hadjo V. Gooden •
469
V. Durfee
428
Hadiey v. Carter
108
Greenleaf u. Quinoy
112
V. Green
532
Greenough v. Eccles
444
Hadrick v. Pleslop
367
V. Gaskell 237,
239, 242,
Haffelfinger v. Shutz
564
244
Hagaman v. Case
118
V. West
385
Hagedoorn v. AUnutt
3!0
Gregory v. Baugh
103
Hagedorn v. Reid
Uu
V. Dodge
420
Haig V. Newton
487
V. Howard
192
Haigh V. Belcher
52
,449
V. Parker
185
V. Brooks
485
V. Tavemor
466
Haile v. Palmer
485
493
V. Thomas
55
Haines v. Dennett
385
Grellier v. Neale
672
Haire v. Wilson
18
Grenfell v. Girdleston
39
Hale V. Ross
489
Greville v. Chapman
440
V. Russ
667
568
Grey v. Young
102, 430
V. Smith
398
Grierson v. Eyre
4
Hale's Ex'rs v. Ard's Ex'rs
117
Griffin v. Brown 342
396, 539
Haley v. Godfrey
427
V. Montgomery
114 a
Halifax's case
40
Griffin's case
220
HaE V. Ball
84
Griffing v. Harris
385
V. Baylies
392
Griffith V. Davies
245
V. Cazenove
285
* V. Williams
578
V. Cecil
395
401
Griffiths V. Williams
27, 186
V. Fisher
301
Griffits V. Ivery
680
V. Gettings
145
Grigg's case
339, 340
V. Glidden
117
Grimes v. Kimball
'558
V. Hale
391
Grimwood v. Barrett
60
ij. Hill
186
Griswold v. Pitcairn
4
V. Hoddesdon
652
Grote V. Grote
47
V. Houghton
443
Guernsey v. Carver
632
V. Manchester
509
Guidon v. Robson
207
V. Odber
546
Guild V. Lee
179, 537
V. Phelps
669
Guild's case 217, 219, 221
222, 223
V. Steamboat Co.
426
Guinness v. CarroU
546
V. White
208
Gully V. Grubbs
26
V. Williams
502
548
Gunnison v. Gunnison
310
Hallet V. Mears
310
Gunter v. Watson
436
Hallett V. Cousens
463
Gurney v. Langlands
680
Halliday v. Martinett
116
Gurr V. Rutton
101
Haly V. Lane
207
Gutteridge v. Smith
Guy V. Hall
205
Ham V. Ham
3,26
385
Hamblin's Succession
650
V. Sharp
287, 291
Hamer v. Sowerby
559
Gwinnett v. Phillips
60, 66
Hamilton v. Cutts .
180
394
Gyles V. Hill
608
V. Marsden
V. Minor
672
576
146
H.
c. Williams
Hammatt v. Emerson
167
572
113
Habershon v. Troby
249
Hammick v. Bronson
107
Hacker v. Young
484
Hammon v. Huntley
176
Hacket v. Callender 197 a
199, 207
Hammond v. Steward
314
V. Martin
190
Hammond's case 578
580
681
Hackett v. King
108
Hampshire v. Pierce
291
Hackley v. Patrick
112
Hampton v. McConnell
504
Hackman v. Fernie
73,76
Hanbury v. Ella
73
Haddow V. Parry
116, 147
Hancock v. Barrett
548
XXXVlll
INDEX TO OA.SES CITED.
Section
Hancock v. Welsh 631
Handley k. Edwards 402
Hannaford t>. Hunn 532
Hamiay v. Stewart 113
Honover (K. of) v. Wteatley 467, 554
Hansard v. Robinson 558
Hanson v. Eustace 87
V. Parker 180
V. Shackletou 5
V. Stetson 281
Hard v. Brown 101
Harden t). Gordon -212
Harding v. Carter 208
V. Greening 36
V. Hale 532
V. Mott 385
Hardman v. Wilcock 207
Hardy v. The State 49
Hare v. Munn 76
Harger v. Edmonds 440
Hargrave v. Hargrave 103, 166
Harman v. Lesbrey 891, 401
Harman's case 225
Harmer v. Davis 207
Harmon v. Arthur 427
Harness v. 'Thompson 356
Harnett v. Johnson 81
Harper v. Burrow 164
V. Gilbert 477
Harrington v. Ery 677
V. Lincoln 192, 449, 469
Harris u. Eorman 284 a
V. Harris _ 215
V. Holmes 51 a
V. Johnston 805 a
V. Mantle 52
V. Rayner 58
V. Rickett 285
V. Tippett 62, 423, 449, 459
V. Whitcomb 86
V. Wilson 177, 423, 425, 449
Harris's ease 227
Harrisburg Bank v. Foster 385
Harrison v. Barnby 61
V. Barton 282 a
u. Blades 147, 672
V. Courtauld 421
V. Creswick 528
V. Gordon 449
V. Middleton 437
V. Moore 96
v. Rowan 434, 445, 447
V. VaUance 180, 190
Harrison's case 79
Hart V. Deamer 556
u. Newman 196, 209
V. Williams 116
V. Yunt 84
Hart's case 408
Section
Hartford Bank ». Hart 332
Bridge Co. «. Granger 192
». Palmer 365
Hartley v. Brooks 117
V. Manson 568 a
V. Wilkinson 283
Hartness v. Thompson 197 a
Hartwell v. Root 40, 80
Harvey v. Alexander 26
V. Broad 5
V. Coffin 392
V. Grabham 302
V. MitcheU 660
V. Richards 528
V. Thomas 84
V. Thorpe 86
V. Towers 78
Harvey's case 231
Harwood v. Goodright 37
V. Keys 180
V. Mulry 118
V. Sims 135, 138
Hasbrouck v. Baker 96 a
V. Vandervort 335
Haskill V. The Commonwealth 79
Hastings v. Blue Hill Turnpike •
Corporation 484
Hatch V. Dennis 190
V. Hatch 668
Hatfield v. Jameson 5
V. Thorp 341
Hathaway v. Clark 20
V. Haskell 176
Hathorn v. King 440
Hatton V. Robinson 238
Hauberger v. Root 176
Haughey v. Strickler 51 a
Haven v. Brown 113, 437
Havis V. Barkley 387
Hawes v. Hatch 668
V. Watson 207
Hawk V. Freund 201
Hawkesworth v. Showier 357, 407
Hawkins v. Brown 822
V. Finlayson 394
V. Grimes 581
V. Howard 246
V. Lascomb 179
V. Ware 89
Hawks V. Baker 371
V. Kennebec 6
Hfeworth V. Bostock 39
Haworth's case 225
Hayden v. Denslow 266
V. Inhab'ts of Madison 197
Haydon's case 293
Hayes v. Morse 122
V. Seaver 187
Hayne v. Maltby 25
INDEX TO CASES CITEB.
ZXXIS
Haynes u. Rowe
V. Rutter
V. Young
Hays V. Richardson
Hayslep v. Gymer
Hayward v. Bath
Section
323
108
301
422
199
498
Rubber Co. v. DuncHee 189
Hazard v. Loring 305 a
V. N.Y. & Providence
R.R. 462
Hazeldine v. Grove 49
Hazen v. Boston & Maine R.R. 80,
285
Head v. McDonald 539
V. Shaver 172
Heald v. Thing 440
Healey v. Thatcher 192
Heane v. Rogers 204, 207
Heard v. Wadham 303
Hearn v. Tomlin 25
Heath v. Hall 408
Heaton v. Findlay 242
Heckert v. Fegely 358
V. Haine 569
Hedge v. Clapp 462
Hecly V. Barnes 421
Heermance v. Vernoy 398
Helmsley v. Loader 196
Hemenway v. Smith 239 a
Hemmenway v. Towner 28
Hemming v. English 429
V. Parry 73
Hempstead v. Reed 488, 489
Henderson u. Anderson 385
». Henderson 546
V. Kenner 532
V. Wild 172, 174
Hendrickson v. The People 225
Henfrey v. Bromley 566
Henkin v. Gerss 253
Hennian v. Dickinson 342, 564
V. Lester 96 a, 449
Hennell v. Lyon 507, 512
Henry u. Adey 514
■u. Bishop 569
V. Brown 69
V. Cleland 69
..Lee 484,560
u. Leigh 496, 560
V. Risk _ 280
Henshaw v. Davis 118
Henthorne v. Doe 21
Hepburn v. Auld 46
Herbert v. Ashburner 473
V. TuckaU 116
Hercules, The 495
Herman v. Drinkwater 348
Herrick v. Malin 564
«j. Noble 281
Section
Herring v. Boston L-on Co. 288
V. Clobery 240
V. Levy 115, 117
Herschfield v. Clarke 559
Hervey v. Hervey 107
Heward v. Shipley 384, 413
Hewett V. Piggott 198
Hewitt V. Prime 248
Hewlett V. Cock 142, 144
Heylings v. Hastings 112
Heywood v. Reed 101, 190, 469
Hibbert v. Knight 241
Hibblewhite v. MoMorme 668, 568 a
Hibsham v. DuUeban 650
Hicks u. Person 581
Higdon V. Thomas 26
Higgius V. DeDinger 197 a
Higgs V. Dixon 569
Higham v. Ridgway 116, 147, 149,
150, 161
Highfield V. Peake ' 607, 616
Highland Tump. Co. v. McKean 493
Higley v. Bidwell 145
Hildreth v. Marlin 199
HUlu. Barge 272
V. Buckminster 304
V. Crosby 17
V. Great Western Railway 559
V. Manchester & Salford
Waterworks 26
V. Packard 488, 508
Hill's case 65
Hilliard v. Jennings 392
Hills V. Barnes 664
V. London Gas Co. 288 6
Hilt V. Campbell 58', 66
Hilts V. Colvin 84, 375
Hinde v. Vattier 21, 490
Hinkle v. Wanzer 260
Hinman u. Brees 621
Hinmau's case 227
Hipes V. Cochran 6 a
Hiscocks V. Hiscocks 289, 291
Hitchcock V. Tyson 205
Hix V. Whittemore 42
Hizer v. State 6
Hoare v. Croyton 160, 181
V. Graham 281
V. Silverlock 5
Hobart ». Bartlett 422
Hobbs V. Lowell 207
V. Parker 528
Hocking v. Cooke 5, 280
Hockless V. Mitchell 427
Hockley v. Lamb 405
Hodempyl u. Vingerhoed 112
Hodgdon v. Wight 38
Hodge's case 34
Hodges V. Holden 76, 76
xl
INDEX TO CASES CITED.
Section
Section
Hodges V. Horsfall
288
Hopkins v. Megquire
677
Hodgkinson v. Fletcher
186
V. Neal
347
V. Willis
512
V. School District
288
Hodgson V. Merest
179
Hordiman v. Herbert
19
Hodnett v. Porman
572
Home V. Smith
319
Hodsdon v. Wilkins
895, 402
Home Tooke's case
198
Hodson V. Marshall
396
Horry District v. Hanion
664
V. Sharpe
207
Hoskins v. Miller
519
Hoe V. Melthorpe
Hoffman v. Smith
518
Hotchkiss u. Lyon
187
248
Hotham v. East India Co.
304
Hoge V. Fisher
440
Houlditch V. Donegal
546
Hoggett V. Exley
76
Houliston V. Smyth
102
Holbrook v. Gay
118
Hovey v. The MiU-Dam
V. Jackson
93
Foundry
333
V. McBride
74
Hovill V. Stephenson 167,
386, 418,
V. Mix
442
435, 572
V. Tirrell
265
How V. Hall
89
Holcomb V. Cornish
513
Howard V. Braithwaite
384
V. Holcomb
366
V. Canfield
437
Holcombe v. Hewson
52
V. Chadbourne
392, 428
Holden v. Hearn
392
V. City Fire Ins. Co.
449
Holding V. Elliott
282 a
V. Mitchell
631
V. Pigott
294
V. Peete
64
Holdsworth v. Mayor of Dart-
V. Smith
96, 203
mouth
444, 467
V. Tucker
208
Holladay v. Littlepage
116, 120, 147
Howe V. Howe
388
Holland v. Cruft
529
0. Peabody
665
V. Beves
466
V. Walker
281
HoUaway v. Raikes
147
Howell V. Look
421
Hollenback v. Fleming
569, 569 a
V. Richards
69
HoUenbeck v. Shutts
281
V. Thomas
73
Hollingham v. Head
62
Howland v. Conway
462
Holman v. Burrow
6
V. Lenox
310
V. Kimball
239
V. Sheriff, &c.
394, 437
V. King
486
V. Willetts
394, 437
Holme V. Greene
174
Hoxie V. Wright
549
Holmes «. Anderson
449
Hoy V. Morris
239 a
V. Baddeley
240, 240 a
Hoyle V. Cornwallis
5
V. Doane
303
Hoyt V. Hammekin
323
V. Love
78
V. Wildfire
389
V. Pontin
572
Hubbard v. Hubbard
77
V. Remsen
542
V. Knous
205
Holsten v. Jumpson
287
V. Russell
84
Holt V. Miers
629, 562
Hubbert v. Borden
281
V. Squire
186, 194
Hubbly V. Brown
391, 399
Homan v. Thompson
75
Hubly V. Vanhorne
680
Home V. Ld. Bentinok
250, 251
Hudson V. Browne
81
V. Mackenzie
436
V. Guestier
64.1
Homer v. Brown
530
V. Harrison
197
V. WaUis
568, 572, 581
V. Revett
568 a
Hone V. Mut. Safety Ins
Co. 292
Hudson Co. v. State
20
Honeywood v. Peacock
572
Huet V. Lemesurier
493
Hood V. Reeve
182
Huff V. Bennett
166
Hook V. Freund
201
Hugh's case
82
Hope V. Evans
200
Hughes V. Biddulph
204 a
V. Harman
668 a
V. Blake
630
Hopewell v. De Pinna
41
V. Buckland
49
Hopkins v. Banks
112
V. Budd
562
V. De Graffenreid 675 1
V. Cornelius
5
INDEX TO CASES CITED,
xli
Section
Section
Hughes V. Hampton
118
Ireland v. Powell
138
V. Rogers
580
V. Stiff
463
Huidekoper v. Cotton
252
Irvine
V. Stone
66
Hull V. Blake
629, 542
Irving
V. Irving
675
Humble v. Hunter
281
Irwin
}. Reed
163
V. Mitchell
267
0. Shumaker
356
Hume u. Soott
461
Irwin's
case
227
Humphrey v. Humphrey
54
Isack V. Clarke
144
Humphreys v. Budd
6
Isham
V. Gibbons
514 a
V. Guillow
564
Israel
w. Benjamin
205
V. Miller
402
1
;. Clark
210
Hunt V. Adams 281
, 665, 567
Ivat V.
Finch
147, 189
V. Brigham
174
Ives V.
Niles
118
V. Hoit
301
Ivey V
Young
73
V. Livermore
283
V. Lyle
505
V. Massey
121
J.
Hunter (The)
31,37
Hunter v. Caldwell
49
Jack »
Dougherty
2b
V. King
404
Jackson v. Bailey
164, 165
V. Leashley
416
V. Bard
109
Huntington v. American Bank 205
V. Benson
390
V. Finch
564
V. Blanshan
21, 144, 570
Hurd V. Moring
245
v. Boneham
484
Hurst V. Beach
296
V. Brooks
389, 578
!;. Jones
104
V. Browner
103
Hurst's case
316, 318
V. Burtis
237, 241
Hutcheon v. Manningtou
6
V. Burton
572
Hutching v. Adams
61
v: Chase
265
V. The State
310
V. Christman
437, 570
Hutchinson v. Bowker 49
277, 280
V. Cooley
104
V. Sinclair
26
V. Davis
21
Hutton V. Warren
294
V. Dobbin
207
Hyckman v. Shotbolt
69
V. Fairbank
112, 174
Hyde v. Middlesex Co.
109
V. French
239
Hylton V. Brown
559
V. Frier
V. Galloway
V. Gould
349
427
. 668
I.
V. Gridley
V. Hesketh
367, 369
74, 75, 76
lasigi V. Brown
477, 559
V. Hogarth
V. Jackson
389
Icehour v. Martin
819
421
Ide V. Stanton
268
V. Jones
659
Ilderton v. Atkinson
391, 416
V. King
484
Illinois Ins. Co. v. Marseilles
V. Kingsley
571
Co.
430
V. Knifien
156
Lnlay V: Rogers
653
V. Lamb
144
Imperial Gas Co. v. Clarke
474
V. Larroway
142, 144, 570
Imrie v. Castrique
546 e
V. Lawson
104
Ing V. Brown
260
V. Leek
443
Inge M. Murphy
488, 489
V. Le Grange
576
lugraham v. Boekins
117
V. Luquere
21, 142, 144
V. Hutchinson
17
V. Malin
566
V. State
6
■u, Mann
319
Ingram v. Dada
426
V. Marsh
301
V. Lee
8fl
V. Matsdorf
24
Innes v. Campbell
41
V. McCall
45
Innman v. Foster
55
d. McDonald v.
McCall 145
Inslee v. Prall
118
V. MoVey
241
xlu
INDEX TO ^ASES CITED.
Section
Jackson v. Meyers 284
V. Miller 498
V. MOls 24
u. Murray 46
V. Osborne 564
V. Pesked 19
V. PHillips 581, 681 a
V. Pixley -207
V. Pratt 426
V. Reynolds 207
V. Kobinson 519
V. Rumsey 167, 418
V. Russell 104
V. Sclssam 207
V. Smith 207
b. Spear 207
V. Sprague 301
V. Thomason 462
V. Vail 84, 575
V. Vanderheyden 24
B. Van Dusen 272
a. Varick 447
V. Waldron 84, 575
V. Williamson ' 252 a
V. Winchester 164
V. Wood 539
V. Wright 24
Jackson's case 259
Jacob V. Lindsay 90, 436, 439
V. United States 83
Jacobs V. Humphreys 180
V. Laybourn 421
V. Wbitcomh 102
Jacobson v. Fountain 331, 428
Jacock V. Gilliam 474, 484
James v. Biou 37, 196
V. Brawn 92
' V. Hackley 176
V. Hatfield 347
V. Phelps 49
V. Salter 74
V. Spauldmg 117
V. Trollop 144
V. Walruth 69
V. Wharton 120
Jameson v. Drinkald 440
Jansen v. Ostrander 69
J'Ansen v. Stuart 55
Janvrin v. Scammon 451
Jarboe v. Kepler 462
Jardine v. Sheridan 192, 289
Jarrett u. Leonard 181
Jasper v. Porter 6
Jeacock v. Faulkner 288
Jeens v. Wheedon 227
Jeffers v. Radcliffe 550
Jefferson Ins. Co. v. Cotheal 441
Jeffreys v. Harris 64
V. Walton 304
Jelf u. Oriel
Jenkins v. Davis
V. Eldredge
V. Phillips
Jenks's case
Section
73
133
296 a
73
65
Jenner v. Joliffe 86, 96 a, 203, 521
Jenney v. Rodman 207
Jennings v. Whitaker 204
Jermaiji v. Denniston 190
Jevans v. Harridge 349
Jewell V. Jewell 103
Jewett V. Adams 394, 420
V. Terry 207
Joannes v. Bennett 558
John V. Curry 73
Johnson v. Beardslee 174
V. Blackman 190, 353
V. Brailsford 273
V. Breedlove 118
V. Browning 352
V. Cunningham . 409
V. Dalton 281
V. Daverne 266, 677
V. D. of Marlborough 564
V. Durant 249
V. Hacker 498
V. Johnson 248, 272, 305
V. Knight 167
V. Lawson 103
V. McGruder 260
V. Runnels 505
■V. Sherwin HO
V. State 168
B. Thoroughgood 58
V. Ward 114, 484
Johnston v. Caulkins 54
V. Cottingham 27, 532
u. Todd 103, 462
Johnstone's case 65
Jolley V. Taylor 82, 89
V. Young 49
Jones V. Barclay 304
V. Brinkley 572
V. Brooke 391, 401
v. Carrington 189
V. Church 190
0. De Kay 118
u. Edwards ' 562
V. FUnt 179, 271
V. Foxall 192
V. Gale 6
V. Georgia 379
V. Herbert 174
V. Hoar 205
' V. Jones 16S
V. Kennedy 74
V. Lake 272
V. Lanier 462
V. Long 117
INDEX TO CASES CITED.
xliii
Section
Section
Jones V. Mason
374, 572
Kelley v. Powlet
288
V. McNiel
533
V. Small
185, 341
V. Moore
112
Kello V. Maget
573
V. Morrell
197, 215
Kellogg V. Smith
301
V, Newman
291
Kelly V. McGuire
103
V. Overstreet
5
Kelsey v. Bush
201
V. Perry
101
V. Hanmer
558,
571, 674
V. Phelps
569
Kelway v. Kelway
237
V. Pitcher
494
Kemble v. Lull
294
V. Pugh
240
Kemmerer v. Edelnian
434 a
V. RandaU 482
491, 508, 511
Kemp V. King
560
V. Sasser
26
Kempland v. Macaulay
181
V. Stevens
55
Kendall v. Powers
513
u. Stroud
438
Kendrick v. State
164, 165
V. Tarlton
94
Kennedy v. Erie, &c. Plank
V. The State
363
Road Co.
281
V. TubervUle
178
V. Niles
356
u. Tucker
440
Kennet v. Greenwollers
392
V. Vanzant
51 a
Kenuey v. Jones
46
V. Ward
26
Kensington v. Inglis
436, 437
V. White
637
Kent V. Garvin
117
V. Whittier
190
V. Lincoln
102
V. Williams
53 a
Kerr v. Love
118
V. Wood
165
Kerr's case
229
Jones's case
225
Kerrlson v. Coatsworth
396
Jorau V. Ferrand
448
Kerwin, Ex parte
568 a
Jordaine v. Lashbroke
385
Ketchingham v. State
462
Jordan v. Fenno
260
Key V. Cent
523, 627
V. Hubbard
185
V. Shaw
101, 197
V. Lewis
254 a, 471
Kidder v. Blaisdell
6
V. Stewart
564
Kidni^ V. Cockburu
■ 105
V. Wilkins
563
Kieran v. Sanders
207
Jory V. Orchard
561
Kilburn v. Bennett
108
Joslyn V. Smith
112
Kilheffer v. Herr
631
Joyce V. Maine Ins. Co.
441
KimbaU v. Huntington
173
Judd V. Gibbs
171, 195
V. Morrell
558
Judge, &c. V. Briggs
503, 518, 518
V. Thompson
360
Judice V. Chretien
485
Kimmel v. Kimmel
461
Judson V. Blanchard
349
Kincaid v. Howe
37
Jumpertz v. People
576
V. Purcell
King V. Badeley
356
288
V. Chase
527
528, 532
K.
V. Hoare
V. Little
633
20, 21
Kaines v. Knightley
281
V. Paddock
41
Kay V. Brookman
575
V. Robinson
66
Kaye v, Waghorne
301
V. Waring
55
Kaywood v. Barnett
103
King (The) v. Mashiter
280
Kean v. Price
489, 505
Kingham v. Robins
205
Ivcaiie V. Smallbone
568 a
Kingston v. Lesley
493
Jvi.'atiug V. Rice
304
(Mayor of) v.
Horner 20, 45
Keeling v. Ball
84, 572
Kingston's (Duchess of)
case
19,
Keene v. Deardon
46
248,
523
531, 541
Koightl)' V. Birch
394
Kinleside v. Harrison
440
Keith V. Kibbe
118
Kinnersley v. Wm. Orpe
484, 523,
V. Lathrop
576, o77
535
V. Wilson
432
Kinney v. Borran
322, 323
Kell V. Nainby
207
V. Farns worth
145, 207
Kellenberger v Sturtevant 527 a
V. Flynn
282
577, 581
xliv
INDEX TO CASES CITED.
Section
Kinsley v. Robinson
385
Kip V. Brigham
Kirby v. Sisson
180, 539
558
Kirk V. Eddowes
296
Kirkland v. Smith
506
Kirkpatrick v. Stingley
539 a
lOrwan v. Cockburn
479
Kissam v. Forrest
445
Kitchen v. Campbell
531, 533
V. Tyson
118
Knapp V. Maltby
567, 568 a
Knapp's case
219, 222, 231
Knight V. Clements
564
V. Dauler
509
V. Marquis of Waterford 150,
V. Martin
UU J.
571
v. Packard
385
Knott V. Smith
319
Knox V. Jenks
46
V. Silloway
671
V. Waldoborough
529
Koch V. Howell
117
Kohn V. Marsh
27, 206
Kraft V. Wickey
644
Krider v. Lafferty
279
Kuhtman v. Brown
323
L.
La Cay gas v. Larionda
Lacon V. Higgins
479
75,76
Lacy V. McNeal
112
Ladd V. Blunt
501
Lade v. Holford
46
Lady Lawley's case
Laing v. Barclay
Lainson v. Tremere
343
246
22
Lake v. Auburn
420
V. King
V. Mumford
6
51 a
Lamb V. Hart
118
V. Lamb
289
Lamb's case
90, 215, 228
Lambert v. Hale
81
Lambeth v. Vawter
112
Lamey v. Bishop
Lampon v. Corke
Lamprey v. Nudd
Lampton v. Haggard
Lanauze v. Palmer
73
26, 212
532
5
87
Lancaster v. Lane
513
V. Whitehai
681
Lancum v. LovcU
139
Lander v. Seaver
64
Landsberger v. Gorham
239
Lane v. Chandler
172
V. Cole
319
Section
Lane v. Crombie 78
V. Harrison 630
Lane's case 6
Lang V. Gale 49
V. Eaine 572
Langdon v. Goddard 560
V. Langdon 279, 305
V. Young 488 a
Langhorn «. AUnutt 113
Langley v. Fisher 3 1 1
V. Ld. Oxford 186
Lansdowne v. Lansdowne 288
Lansing v. McKillip 68
Lansiiigburg (Bank) v. Crary 271
Lapham v. Whipple 284
Larbalestier v. Clark 391, 398
Larned v. Buffington 55
Larry v. Sherburne 199
Latham v. Kenniston 177, 395
Lathrop v. Blake 297
V. Muzzy 397
V. Stuart 6, 19
Latkow V. Eamer 556
Lattimore v. Harsen 303
Laughlin v. The State 102
Law V. Law 322
V. Merrills 200
V. Scott 251
Lawes v. Reed 436
Lawless v. Queale 96 a
Lawrence v. Barker 443, 449
V. Dole 302
V. Houghton 371
V. Hunt 531
V. Ins. Co. 559
V. Minturu 38
V. Thatcher 113
Lawton v. Kittredge 260
Laxton v. Reynolds 559
Layer's case 90, 228, 461
Lea V. Polk County Copper Co. 40
Leach v. Armitage 75
V. Simpson 161, 227
V. Thomas 390
Leader v. Barry 107
Leake v. Marquis of Westmeath 611
Learned v. Bryant 207
Leathe v. Bullard 302
Leathes v. Newith 138
LeBaron v. Crombie 163
Lechmere v. Fletcher 539 a
Ledford v. Vandyke 565
Ledgard «. Thompson 569 a
Lee V. Alexander 566
V. Birrell 248
V. Dick 281
V. Gansell 372, 375
V. Howard, &c. Co 281
V. Kilburn J 01
INDEX TO CASES CITB0.
xlv
Soctlon
Lee V. Meecock
508
V. Pain
261
Lee's case
449, 461
Leeds v. Cook
37
V. Lancashire
283
V. Marine Insurance Co.
of Alexandria 178
Lees V. Hoffstadt 81
V. Smith 430
Lefavor u. Yandes 112
Lefebure v. Worden 117
Le Fevre v. Le Fevre 302
Leffers v. De Mott 395
Leggatt V. Cooper 205
V. Tollervey 254 a, 471
Legge V. Boyd 73
V. Edwards 179
Leggett V. Boyd 430
Legh V. Legh 173
Lehan v. Good 532
Leicester (E. of) v. Walter 55
Leideman v. Schultz 280
Leigh V. Leigh 288
Leighton v. Perkins 428
Leke's case 61, 56, 60
Lemaine v. Stanley 272
Lench i>. Lench 214
Leonard v. Allen 55
V. Leonard 650
V. Morrill 301
V. Vredenburg 268
Lesher v. Levan 572
Lester v. Jenkins 521
Lethulier's case 292
Levers v. Van Buskirk 244
Levi V. Milne 49
Levy V. Cadet 112
■u. Essex 400
V. Merrill 265
V. Pope 245
V. State 481
Lewis V. Clerges 164
V. Gray 284 a
V. Hogdon 420
V. Kramer 116
V. Marshall 484
V. Payn 566, 568
V. Peake 397
V. Sapio 677
Ley V. Ballard 572
Leyfield's (Dr.) case 568
Lichtenhein v. Boston & P. R.E
Co. , 292
Lightfoot V. Cameron 316
Lightnor v. Wike 163, 437
Like V. Howe 196, 204, 207
Lilly V. Kitzmiller 429
Lincoln v. Battelle 488
Lindenberger v. Beal '•O
Section
Lindsay v. Williams 6
Lindsey v. Attorney-General 6
I,infield v. Old Col. R.R. Corp. 323
Lingan v. Henderson 26
Linn v. Buckingham 569
Linscott V. Trasfc 34
Linsley v. Lovely 305 a, 445
Lipscombe v. Holmes 195, 205
Lister u. Priestley 195
■ Little V. ICeon 386
V, Larrabee 252 a
V. Libby 109
V. Thompson 78
Littlefield v. Portland 398
V. Rice 333
V. Story 173
Littlehale v. Dix 323
Littler v. Holland 302
Livermore v. Aldrich 26, 296
V. Herschell 632
Livett V. Wilson 46
Livingston v. Bishop 633
V. Cox 166
V. Kingstead 365
V. Livingston 46
V. Tenbroeck 293
Lloyd V. Lynch 212
V. Passingham 460
V. Sandiland 38
V. Spillett 266
V. Willan 27, 184
V. Williams 358
Lobb V. Stanley 285
Lochlibo (The) 443, 444
Lock V. Winston 527
Locke V. Norborne 636
Lockhart's case 231
Lockwood V. Lockwood 440 a
V. Smith 176
V. Sturdevant 24
Lodge V. Phipher 680
Logan V. The State 158
Lohman v. The People 455
Lombardo v. Ferguson 561
London v. Lynn 493
Lonergan v. The Royal Ex. Ass. 310
«. Whitehead 118
Long V. Baillie 167
V. Barrett 53
V. Davis 163
V. Hitchcock 463
V. Lamkin 450
Long's case 217, 220
Longenecker v. Hyde 116, 120, 187
Look ». Bradley 331,405
Loomis «. Bedell 571
V. Green 532
V. Jackson 301
V. Loomis 112
xlri
INDEX TO CASES CITED.
Section
Loomis ». Wadhams 96 a, 171
Lopes V. De Tastet 58, 64
Lord Gosford v. Robb 96 a
Lord Milton v. Edgeworth 302
Lord V. Moore 323
Loriug et al. v. Brackett 174
V. Norton 301
V. Stoineman 41
Lorton, Viscount, v. E. of Kings-
ton 551
Lothrop V. Blake 489
Loud V. Merrill 40
Louisiana State Bank v. Martin 416
State of, &c rd. Hatcli
V. City Bank of N.
Orleans 474
Loveridge v. Botliain 212
Low u. 0. & P. R.E. 440 a
V. Mitchell 54, 451
V. Perkins 175
^ Low's case 252
Lowber v. Shaw 399, 416
Lowe V. Boteler 174
V. JolifFe 384, 443
V. Lord Huntingtower 301
V. Peers 19
Lowell V. Daniels 24
Lower v. Winters 58
Lowry V. Cady 84
Loyd V. Preshfield 248
V. Stretton 392
Lubbock V. Tribe 558
Lucas V. Bristow 282 a
V. De La Cour 177, 281
V. Groning 280
V. Nockels 59
Ludlam ex d. Hunt 84
Lufkin V. Haskell 331, 405
Lumley v. Gye 320
Lund V. Tyngsboroiigh 108, 123
Luniss V. Uowe 422
Lush V. Druse 301
Luttrell V. Reynell 168, 533
Lygon V. Stutt 142
Lyman v. Lyman 207, 521
Lynch v. Benton 306
V. Gierke 484
V. McHugo 118
Lynde v. Judd 508
Lyon V. Ely 323
V. Lyman 580, 581
V. Miller 281
Lyons v. Gregory 84
M.
Maberley v. Kobins
Maby V. Shepherd
69
Section
Macbride v. Macbride 451, 456, 458
Macdonald v. Longbottom 288 a
Machel v. Winter 288
Mackenzie v. Yeo 244, 341
Maddison v. ISIutall 189
Maddox v. Sullivan 260, 381
Magee v. Scott 34, 513
Magennis v. MacCuUogh 265
Magill V. Kauffinan 163, 332
Magoun v. N.E. Ins. Co. 541
Mahan v. McGrady 569
Mahurin v. Bickford 505
Main v. Newson 409, 423
In re 41
Maine v. Harper 117
Stage Co. V. Longley 430
Mainwaring v. Mytton 401
Major V. State 6
Makepeace v. Bancroft 301
Malaun v. Ammon 156
Malcom v. Scott 171
Malcomson v. Clayton 51
Malin v. Malin 200
Malone v. Bartley ^01
Malony's case 227
Maltby v. Christie 194
Malton V. Nesbitt 440
Manby v. Curtis 142, 155
Manchester Bank v. Moore 346
L-ou Manuf. Co.
V. Sweeting - 418
Mills (The case of) 139
Manchester (The) 113
Mandeville v. Welch 172, 173
V. Wilson 73
Mann «. Locke 112
V. Mann 296
V. Pearson 301
Manners v. Postan 669
Mannifold v. Pennington 72
Manning v. Lechmere 147
Maut V. Mainwaring 353, 356
Many v. Jagger 190
Marbury v. Madison 251
March v. Commonwealth 6
Marcy v. Stone 109
Marianski v. Cairns 197 a
Maria Das Dorias 498
Marine Lis. Co. v. Hodgson 73
Mariner v. Dyer 349
V. Saunders 558 .
Markham v. Gonaston 568
Marks v. Lahee 115, 116, 150, 162
Marland v. Jefferson 392, 402
Marquand v. Webb 395
Marriage v. Lawrence 484, 493
Marsden v. Stanfield 331
Marsh v. Collnet 484, 570
V. Davis 110
INDEX TO CASES CITED.
xlvii
Section
Itfarsli V. Gold 192
V. Howe 239 a
V. Jones 165
V. Keith 246
V. Pier 531
Marshall v. Baker 303, 304
b. Chff 186, 194
V. Gougler 666, 568
V. Lynn 302, 304
V. ThraikiU 395
Marshall's appeal 287
Marston v. Downs 241
V. Hobbs 24
• Martin v. Farnham 450
V. Good 437
V. Gunby 484
V. HorreU 416
V. Kelley 397
V, Maguire 581
• V. Nicolls 546
V. Payne 489
V. Root 112, 174
V. Travellers Ins. Co. 435
Martin's case 65
Martindale v. FoUett 568
Martineau v. Woodland 416, 420
Martinstein v. His Creditors 118
Marvin v. Richmond 192
Mary Grigg's case 345
Mary Stewart (The) 40
Mary (The) 18
Mash V. Densham 73
V. Smith 260, 859
Mason v. Mason 30
Mastermari v. Judson 73
Masters v. Abraham 114
V. Drayton 392
V. Miller 565, 566, 568 a
Mather v. Clark 349
V. Goddard ' 87
V. Trinity Church 45
Mathes v. Robinson 118
Mathews v. Coalter 564
V. Haydon 416
V. Houghton 513
V. Marchant 429
V. Smith 392
Matthews v. Colburn 164
Matthews' estate 239
Mattocks V. Lyman 197 a, 201
V. Wheaton 310
Maugham v. Hubbard 90, 436, 437
Mauran v. Lamb 330, 353, 452
Mawson v. Hartsink 461
May V. Babcock 305
V. Brown 63
V. Taylor 180
Mayer v. Seifton 93
Mayfiehl v. Wadley 271
Section
Mayhew v. Thayer 449
Mayley v. Shattuck 543
Mayor v, Johnson 558
Mayor of Carmathen v. Lewis 73
Colchester v. Lewis 333
Doncaster v. Day 163
- Southampton v. Graves 474
McAdams v. Stilwell 164
MoArthur v. Hurlburt 443
McBraine v. Fortune 417
MeBride v. Watts 197
MeCann v. The State- 215
McClane v. White 296 a
McCleijkan v. McMillan 199, 201
MoCorkle v. Binna ' 581
McCormick v. Garnett 486
McCraw v. Gentry 572
McCrea v. Purraort 26
McCullock V. Tyson 392
McCuUy V. Malcohn 352
McCully's case 65
McDaniel v. Hughes 542
McDonald v. Christie 440 a
V. Evans «
V. Kainor
V. Rooke
McDonnell v. State
McDowell V. Langdou
V. Stimpson
McElmoyle v. Cohen
McFadden v. Kingsbury
McGaliey v. AUston
McGee v. Prouty
McGill V. Rowand
McGrath V. Seagrave
McGuire v. Maloney
V. Sayward
McGuire's case
McGunagle v. Thornton
Mcllroy v. Mcllroy
McLitire v. Oliver
Mclntyre v. Mancius"
V. People
Mclver v. Humble
V. Walker
jMcKeevlin v. Bresslin
McKee v. Hicks
u. Nelson
McKelvy v. De Wolfe
McKenire v. Fraser
McKeniiey v. Dingley
McKinney v. Neil
McKinnon v. Bliss
McKnight v. Lewis
McKonkey^u. Gaylord
McLanathan v. Patten
McLean v. Hertzog
V. State
MoLellan v. Crofton
463
630
49
49
532
517
548
89
82, 92, 187
281
348
513
338
507
82
416
430
112, 174
451
363
356, 494
301
474
568 a
440
323
21, 144, 570
58
462
5
352
57"^
190
89-
1.59, 432
118
slviu
INDEX TO CASES CITED.
Section
McLellan v. Cumberland Bank 275
V. Longfellow 239
V. Richardson 252
McMahon v. BurcheU 171
MoMicken v. Beauchamp 664
McNaughten's case 440
McNeil V. PhiUp 207
Ex parte 316
McEao V. Lilly 54
McTyer v. Steele 805
McWilliams v. Nisby 24
Mead v. Boston 537
V. Robinson 413
Meade v. McDowell 187
V. Smith 252 a
Meadows «. Meadows 268
Meagoe v. Simmons 436, 449
Meath (Bp. of) v. Ld. Belfield 137,
138
M. Marquis of
Winchester 142, 154, 240
Mechanics' Bank of Alexandria
V. Bank of Columbia 112
Medomak Bank v. Curtis 303
Meeker v. Jackson 349
Meekins v. Smith 316
Melcher v. Flanders 569
Melen v. Andrews • 197, 199, 233
Melhinch v. Collier 51 a, 444
MeUish v. Rawdon 49
V. Richardson 73
MellviUe's (Ld.) case 6, 65, 234, 482
Melvin v. Whiting 17, 164, 310
Mercer v. Sparks 34
V. WhaU 76
0. Wise 207
Merchants' Bank v. Cooke 332
V. Spicer 430
Meredith v. Footner 185
Meriam v. Harsen 293
Merle v. More 243
Merriam v. Hartford & N.H.
R.R. Co. 329
V. Ithaca and Oswego
Railroad Co. 437
V. Langdon 73
Merrifield v. Robbins 489
Merritt v. Thompson 41
Mersey & ElweU Nav. Co. v.
Douglas 62
Mertens «. Nottebohms 352
Meserve v. Hicks 501
Mestayer v. Biggs 284
Metcalf V. Van Benthuysen 558
Metropolis (Bank of the) v. Jones 385
Metzger's case 652
Metzner v. Bolton 66
Mevey v. Matthews 356
Mexico & S. A. Co. in re 451 a
SectiOD
Meynell's case 221
Michaels v. Shaw 521
V. Williams 49
Middlesex's (Sheriif of) case 6
Middleton v. Brewer 205
V. Mass 142, 144
V. Melton 116, 120, 147,
150, 153, 187
Middletown Savings Bank
V, Bates 333
Mifflin V. Bingham 118
Milbourn v. Ewart ■ 286
Miles V. Dennis 179
». McCullough 316
V. O'Hara 165, 166
V. She ward 61
Milford V. Worcester 484
Millay v. Butts 34
Miller v. Baker 271
V. Bingham 190
V. Covert 532
V. Falconer 396, 417
V. GiUeland 568, 568 a
V. Hale 513 •
V. Irvine 268
V. Mariners' Ch. 95, 333, 422
V. McQuerry 6
V. RusseU 163
V. Travers 288, 289, 290, 291,
297, 301
». Williams 205
Miller's case 440
Milliken v. Coombs 269
Millman v. Tucker 457
Mills V. Duryee 504
V. Gore 361
V. Oddy 75, 237, 241
V. Twist 572
V. Wyman 304
Milne v. Leisler 108 a
Milward v. Forbes 193
V. Hallett 410
Milword v. Ingram 302
Mima Queen v. Hepburn 124
Minet v. Gibson 53
Minns v. Smith 463
Minor v. Mechanics' Bank of
Alexandria 356
V. Tillotson 82, 83
Mints V. Bethil 93
Minturn's case 65
Mish V. Wood 440
Mishler v. Baumgardner 380
Mitchell V. Belknap 119
V. Clark 118
V. Kingman 284
V. Mitchell 421
V. Sellman 469
Mitchum v. State 108
INDEX TO CASES CITED,
xlia
Section
SectlOD
Mockbee v. Gardiner
398
Morrison v. Kelley
471
Moffitt V. The State
363
V. Lennard
366
Mohawk Bank v. Atwater
421
V. Turnour
272
Moillett V. Powell
73
V. Woolson
19
Moises V. Thornton
58
, 195
Morje V. Conn. R. R. Co.
114 a
Mollett V. Wackerbarth
668
V. Potter
118
Molton V. Harris
87
V. Royall
174
Molyneaux v. Collier
1
192
V. Shattuck
26
Moukton V. Attor.-Gen.
103,
104,
V. Weymouth 288 6, 298 a
105, 131
, 134
, 135
Morss V. Morss
364
Monroe (Bank of) v. Culver
115
Mortimer v. McCallan
113, 474
V. Field
113
V. Mortimer
215
V. Twistleton 1
254
, 337
Morton v. Chandler
284, 474
Montee v. The Commonwealth
49
V. Penny
66
Montgomery v. Ohio
165
V. Webster
485
V. Richardson
205
Moscati V. Lawson
409
V. The State
158,
161 a
Mosely v. Davis 130,
135, 138
Moody ». King
356
V. Hanford
281
V. Rowell 445, 447,
448,
577,
Moscy's case
231
580
, 581
Mosler's case
222
Mooers v. Bunker
103
Mosley v. Massey
301
Moons V. De Bernales
550
Mostyn v. Fabrigas
320, 488
Moore v. Griffin
405
Mott V. Doughty
572, 575
V. Hitchcock
96
V. Hicks
423
V. King
272
Mount V. Bogert
192
V. Moore
266
V. Larlcins
49
». Pearson
163
Mountstephen v. Brooke
191
V. Terrell
240
Muller V. Morris
489
Moore's case
227
,484
Munderson v. Reeve
174
Moorehouse v. Newton
118
Munro v. De Chemant
27, 207
Moorhouse v. De Passou
421
Munroe v. Cooper
81 a
Moorish V. Foote
394
, 396
V. Perkins
303
More V. Salter
568
Murdock v. Union Bank
S8
v. Smith
199
Murray v. Buchanan
558
V. Watts
533
V. Carrett
558
Moreton's case
533
V. Coster
192
Morewood t>. Wood 58,
128,
130,
In re
30
136, 137
145
578
V. Judah
430
Morgan v. Baker
532
V. Marsh
430
V. Brydges
445
447
V. Shadwell
361
V. Frees
449
V. Toland
197
V. Morgan
101
Mussey v. Beecher
114
V. Thome
523
Musson V. Fales
379
Morrell v. Dickey
544
Myers v. Baker
200
Morrill v. Foster
104
V. Toscan
581
Morris v. Briggs
117
Myrick v. Dane
281
V. Burdett
197
V. Daubigny
409
V. Davis
28
N.
V. Hanuer
497
V. Hauser
662
Nash V. Gilkieson
54, 55
V. Keyes
532
V. Van Swearingen
462
V. Lotan
76
Nason v. Thatcher
333
V. Miller
209
Natchbolt v. Porter
265
V. Nixon
178
National BanK of St. Charles
V. Pugh
521
V. De Bernales
203
V. Thornton
426
Naylor v. Semmes
452
V. Vanderen
564
Neal V. Wilding
104
V. Wadsworth
573
Neale v. Fry
497
vol, I.
t
INDEX TO CASES CITED.
Section
Neale v. Parkin 197
JiTealley v. Greenough 561
Needham v. Law 333
V. Smith 421
Neelson v. Sanborn 268
Neil V. Cheves 304
V. Neil 272
Neile v. Jakle 197
Neilson v. McDonald 361
Nolius V. Brickell 572
Nellis V. McCarn 440 a
Nelson v. Ewell 319
V. Hall 301
V. Patrick 49
V. State 432, 462
V. The United States 323
V. Whittall 575
New Eng. Bank v. Lewis 530
Glass Co. V. Lovell 440 a
New Hampshire, &c., Lis. Co.
V. Hunt 68
New Haven Co. Bk. v. Mitchell 115,
116, 572
New Milford v. Sherman 110
Newbolt V. Pryce 291
Newburgh v. Newburgh 301
Newcasue (Dk. of) v. Kinderley 37
Newcomb v. Drummond 509
V. Griswold 457, 465
V. Presbrey 664
Newell V. Mayberry 565, 568
V. Newton 6
V. Simkin 473
Newhall V. Holt 203
V. Ireson 301
V. Jenkins 193
Newham v. Raithby 493
Newman v. Atlas Lis. Co. 310
V. Doe 498
V. Jenkins 41, 550
V. Stretch 97, 108
Newsam v. Carr 65
Newton v. Belcher 87, 206, 207
V. Beresford 240
V. Harland 310
V. Harris 450
V. Higgins 118
V. Liddiard 206, 207
Nias V. N. & E. Railway Co. 240
.Nichols V. Dowdiug HI, 112, 177
V. Downs 196, 219
V. Goldsmith 106
V. Holgate 385
V. Johnson 268, 566
V. Parker 135, 145
V. Webb 115, 116, 121, 147
Nickle V. Baldwin 119
Nieman v. Ward 143
Niles V. Brackett 421
Niles 4). Culver
Nix V. Cutting
Noble V. Kennoway
V. Martin
V. McClintock
Noke V. Ingham
Norcott V. Orcott
Norcutt V. Mottram
Norden v. Williamson
Norfolk V. Gaylord
Norris, In re
V. Beach
Section
805
398
292
163
163
356
409
73
172
451, 451 a
41
316
V. N. Am. Ins. Co. 76
North V. Miles 180
North Lib. (Bk. of) v. Davis 435, 444
North River Meadow Co.
V. Shrewsbury Church 564
Northampton Bank v. Wliitiog 266
Northrop v. Wright 21
Northrup v. Jackson 87
Norton v. Coons 281
V. Doherty 532
V. Pettibone 109, 189
V. Kearney 189
Norwood V. Morrow 409
Nourse v. McCay 116
Novelli V. Rossi 647
Nbwell V. Davies 389, 408
Noyes v. Ganfield 280
v. Ward 108, 128, 139
Nute V. Bryant 420
V. Nute 40, 49
Nutting V. Page 108
Oakapple v. Copons
197
Cakes v. Hill
486
498
O'Brien v. Davis
385
V. Gilchrist
305
O'Callaghan v. Murphy
554
Odell V. Culbert
118
Odiorne v. Bacon
513
V. Wade
331
405
J). Winkley 52,421,423,
449
Oelricks v. Ford 292
Ogden V. Miller 117
Ogle V. Atkinson 207
V. Pelaski 421
Ohl V. Eagle Ins. Co. 261
O'Kelly V. O'Kelly 110
Oldnall V. Deakin 21
Oldtown (Bank of) v. Houlton 332
Oliphant v. Taggart 575
OUve V. Guin 503
Oliver v. Bartlett 101
i;. State 156, 158. 159
INDEX TO CASES CITED.
Section
Section
Oliver ». Watking
69
Panton v. Holland
60, 64
Omichund v. Barker
328
369, 371
V. Williams
49
Openl^im v. Leo Wolf
6a
Papendick v. Bridgewater
109
Orange v. Springfield
175
Paris V. Hughes
361
Orcutt V. Kanney
55
Park V. Mears
572
Ord V. McKee
485
Parke v. Bird
558
Orne v. Townsend
495
V. Smith
385
Orr V. Morris
471
Parker v. Carter
239, 241
Osborn v. Thompson
81
V. Green
113
V. U.S. Bank
178
V. Grout
190
Osborne v. London Dock Co.
451
V. Hardy
2
Osgood V. Manhattan Co
,
174, 176
V. Haskins
572
Osterhout v. Roberts
633
«. Hill
668 a
Oswald V. Leigh
39
V. McWilliam
432
Outram v. Morewood
137,
138, 145,
V. Merrill
112
164
531, 536
V. Mitchell
331, 405
Ovenston v. Wilson
573 a, 377
V. Morrell
178
Over V. Blackstone
358
V. Palmer
49, 66
Owen V. Bartholomew
801
V. Staniland
271
V. Boyle
485
V. Vincent
402
V. Flaek
196
V. Yates
243
V. Warburton
252 a
Parkhurst «. Lowton 451,456,459
Owens V. Collinson
402
V. Van Cortland
268
0 wings V. Beall
619
Parkin v. Moon
434
V. Henderson
118
Parkins v. Hawkshaw
186, 239
V. Hull
6
490, 519
Parks V. Dunkle
558
0. Low
112,
173, 174
t). Edge
73
V. Speed
V. Wyant
389, 484
V. The Gen. Int. Assur. Co. 288
86
Parrots v. Thacher
260 a
Parry v. Fairhurst
73
Parsons v. Copeland
195, 627 a
P.
V. Huff
V. Phipps
322
885
Packara v. Hill
514
V. Purcell
96 a
V. Richardson
268, 385
Partridge v. Coates
560
Packer v. Gonsalus
180
Patten v. Moor
239 a, 242
Paddock v. Salisbury
55
Patterson v. Choate
112, 174
Page V. Faucett
5
V. Tucker
437
V. Homans
577
V. Winn
349
V. Osgood
76
Patton V. Ash
38
V. Page
349
V. Craig
116
V. Parker
434 a, 440 a
V. Goldsborough
180
V. Sheflield
281, 303
V. Ryan
117
Paget V. Paget
567
Paul V. Meek
97
Paige V. Cagwin
190
PauU V. Brown
389, 408
V. Hazard
440
Paxton V. Courtnay
282 a
Pain V. Beeston
462
■V. Douglas
451
Paine v. Edsell
564
Payne v. Rogers
172, 173
V. Hussey
420
Payson v. Good
191
V. Mclntier
281
Peabody v. Denton
558
V. Tilden
854, 469
Peaceable v. Keep
429
V. Tucker
96
V. Watson
109, 147
Palethorp v. Furnish
185
Peacock v. Harris
195
Palmer v. Fogg
323
Pearce v. Gray
528
V. Haight
462
V. Hooper
671
■u. Ld. Aylesbury
616
Pearcy v. Flemmg
430
V. Stephens
272
Pearse v. Pearse
240
V. Stevens
91
Pearson v. Coles
76
V. Trower
449
V. Fletcher
246
Hi
INDEX TO CASES CITED.
Section
Pearson v. LeMaitre
53
Pease v. Hurst
174
V. Peck
480
Peaslee «. Gee
301
V. Robbins
42
Peate's case
339
Pecker v. Sawyer
385
Pedler v. Paige
572
Pedley v. Wellesley
336, 340
Peele v. Meroh. Ins. Co.
197
Peet V. Dougherty
384
Peile V. Stoddart
240
Pelrce v. JSTewton
461
Peisoh V. Dickson
280, 288
Pejepscot Prop's v. Ransom
20,46
Pelamourges v. Clark
440 a
PeU V. Pell
356
Pelletreau v. Jackson
22, 101
Peltzer «. Cranston
118
Pember v. Mathers
260
Pender v. Fobes
281
Pendook v. Mackinder
372, 373
Pennell v. Meyer
201
Penniman v. Hartshorn
268
Pennsylvania v. Bell
49
V. Farrell
414
(Bank of) v. Hal-
demand 581
Penny v. Porter 58, 66
Penny Pot Landing v. Philadel-
phia 145
Pennypacker v. Umberger 385
Penobscot Boom Corp. v. Lam-
son 563
Penrose v. Griffith 23
Penruddock v. Hammond 240
People V. Blakeley 458
People (The) v. Bill 363
V. Carpenter 343
V. Costello 380, 381
V. Dean 362, 414
V. Eastwood 440 a
V. Franklin 65
V. Gates 247
V. Gay 469
V. Green 198, 346
V. Herrick 375, 457
V. Holbrook 89
V. Hopson 92
V. Howell 414
V. Irving 353, 452
V. Irwin 296 a
V. Kelly 451 a
V. Knickerbocker 158
V. Lohman 407
V. Mather 451, 454,
456, 461
». Matteson 369
V. McGarren 369
Section
People (The) v. McMahon 225
V. McNair 367
V. Miller 249
V. Minch 484
ex rel. Ordronaux
■0. Chegaray 343
■0. Pease 378
V. Phillips 247
V. PoUyon 471
V. Price 49
V. Robinson 158
V. Rogers 229
V. Sanchez 434, 442
V. Shea 101 a
V. Sheriff of New
York 239 a
V. Spooner 580, 681
V. Throop 474
V. Videto 13
V. Whipple 375, 379
Pepin u. Solomons 51,63
Pepoon V. Jenkins 501, 505
Percival v. Nanson 115, 152
Perham v. Reynall 174
Perigal v. Nicholson 155, 421
Perkins v. Perkins 42
V. Walker 531 a
V. Webster 301
Pernam v. Weed 301
Perrin v. Noyes 81 a
Perry v. Fleming 429
V. Gerbeau 200
V. Gibson 445
V. Massey 443
Perry's case 343
Ferryman v. Steggall 427, 428
Petapsco Ins. Co. v. Soiithgate 323
Peterborough v. Jaffrey 440
Peterman v. Laws 398
Peters v. Warren Ins. Co. 541, 543
Peterson v. Stoffles 388
Petherick v. Turner 112
Peto V. Blades 398
Petrie's case 243
Pettibone v. Deringer 323, 352
Pottingill V. Dinsmore 55
Petty V. Anderson 185
Peyreaux v. Howard 6
Peytoe's case 302
Peyton v. Hallett 392
Peytona (The) 427
Pharaoh v. Lush 288 a
Phealing v. Kenderdine 451
Phelps V. Cutler 80
V. Foot 101
<;. Riley 167, 418
Phenix v. Ingraham 180, 392
Philadelphia & Trenton Co.
V. Stimpson 423, 449
INDEX TO CASES CITED.
liii
Section
Section
Philadelphia W. & B. Il.R
Co.
Podgett V. Lawrence
189
V. Howard
164
Poignard v. Smith
349
Phillips V. Allen
28
Pole V. Rogers
320
V. Berick
532
Pomeroy v. Baddeley
432
V. Earner
445
Pond V. Hartwell
420
V. Hall
207
Ponsford v. O'Connor
320
V. Hunter
642
Pontifex v. Jolly
81
V. Irving
u. King-field
49
Pool V. Bridges
108
461
V. Dicas 1
5, 116
120
V. Shaw
70
Poole V. Palmer
396
407
0. Wells
565
V. Richardson
440
V. Winburn
227
V. Warren
638
PLiUiskirk V. PluckweU
78
Pope V. Askew
577
Phipps V. Pitcher
409
.V. Devereux
180
V. Schulthorpe
207
Poplin V. Hawke
550
Piatt V. McCuUough
20
Porter v. Byrne
275
Pickard «. Bailey
486, 514
V. Ferguson
108
V. Sears
204
V. Judson
115
Pickering v. Bp. of Ely
115
V. Pillsbury
322
V. Dowsou
281
V. Poquonnoo Man.
Co.
440
V. Noyes
246
V. Seller
54
Picton's (Gen.) case
492
v. State
432
Piddock V. Brown
361
Potter V. Baker
632
Pierce v. Butler
399, 401
V. Ware
386
V. Chase
423
V. Webb
55
V. Hoffman
53
Potts V. Everhart
109
V. Parker
288
Poultney v. Ross
118
V. Weymouth
304
Poulter V. Killingbeck
271
V. Wood
112
Powel V. Hord
394
Pierson v. Hutchinson
558
V. Milburu
35
Pigot V. Uavies
521
V. Monson
26
V. HoUoway
437
Powell V. Blackett
572
Pike V. Crehore
513
V. Bradbury
473
,559
V. Hayes
109
V. Edmunds
281
Pile V. Benham
428
V. Ford
577
Pim V. Currell
139
V. Gordon
392
Pipe V. Steel
356
V. State
462
Pitman v. Maddox
117
V. Waters
164
Pitt V. Chapelow
207
Power V. Frick
576
V. Shew
49
V. Kent
239
Pittam V. Foster
176
Powers V. McFerrau
575
Pitton V. Walter
510
V. Nash
188
Pittsfield, &c. P. R. Co. v.
Harri-
V. Russell
74
son
484
V. Shepard
323
Pizarro (The)
31,37
V. Ware
566
Planohe v. Fletcher
488
Prather v. Johnson
116
, 120
Plank-Road Co. v. Bruce
20
Pratt V. Andrews
54
V. Wetsel
568 a
V. Goswell
559
Pl.int V. McEwen
179
V. Jackson
288
Planters' Bank v. George
45.2
Prentice v. Achoru
284
Platteldll V. New Paltz
331
Prescott V. Wright
284
Plaxton V. Dare
143, 160
Prest V. Mercereau
118
Pleasant v. State
432
Preston v. Bowmar
301
Plimpton V. Chamberlain
109
V. Carr
240
Plumbe V. Whiting
387
V. Harvey
531
Plummer v. Briscoe 92, 113, 207
u. Merceau
275
281
V. Sells
185
Prettyman v. Dean
358
Plunkett V. Cobbett
251
Prevost V. Gratz
564
Pocock V. Billings
190
Prewitt V. Tilly
331
430
liv
INDEX TO CAciES CITED.
Section
Sectioa
i^rice V Currell
128
Radford v. Mcintosh
92, 195
V. Dewhurst
541, 546
Raffles V. Wichelhaus
288 a
V. Harrison
559
Raggett V. Musgrave
198
V. Harwood
208
Ralph V. Brown
558
V. Ld. Torrington
116
Ralston v. Miller
145
V. Littlewood
137
Eamadge v. Ryan
441
V. Morris
323
Rambert v. Cohen
90, 436
V. Page
289
Rambler v. Tryon
440
V. Powell
440
Ramkissenseat v. Barker
371
Primm v. Stewart
41
Ramsbottom v. Turnbridge
87, 89, 96
Prince v. Blackburn
572, 575
Ramuz v. Crowe
558
V. Samo
467
Rancliffe (Ld.) v. Parkins
Rand v. Mather
144
V. Shepard
420
303
V. Smith
118
Randall v. Gurney
316
V. Swett
118
V. Lynch
205
Printup V. Mitchell 113
, 200, 664
V. Parramore
551
Printz V. Cheney
451 a
V. Phillips
392
Pritohard v. Bagshawe
203
Randall's case
940
V. Brown
26, 266
Randel v. Chesapeake
563
V. Draper
112
Randle v. Blackburn
201
V. Fou kes
243
Randolph v. Gordon
142
V. McOweu
118
Rands v. Thomas
383
V. Walker
195
Rangeley v. Webster
540
Pritt V. Fairclough
40, 116
Rank v. Shewey
87
Proctor V. Lainson
180
Rankin v. BlaokweU
564
Prouty V. Rugglea
822
V. Horner
194
Pro vis !). Reed
469
V. Tenbrook
109
Pullen V. Hutchinson 564
669j 575
Ransom v. Keyes
427
V. Shaw
564
Rape V. Heaton
488 a
V. The People
335
Raper v. Birkbeck
566
PuUy V. Hilton
485
Rapeyle v. Prince
636
Punderson v. Shaw
118
Rastall V. Stratton
70
Purcell V. McNamara 56,
50, 70, 78
Ratcliff u. Chapman
130
Purviance v. Dryden
358, 395
V. Pemberton
302
Putnam v. Lewis
212
V. Planters' Bank
568 a
Putt V. Eawstern
533
V. Ratcliff
507
V. Roster
533
V. Wales
253 a, 344
Pye's case
65
Ravee v. Farmer
532
Pyke V. Crouch
536
Raven v. Dunning
356
Pytt V. Griffith
672
Rawlings v. Chandler
469 a
Rawlins v. Desborough
74, 441
Rawson v. Haigh
108, 110
Q.
V. Turner
533
V. Walker
281, 304
Quarterman v. Cox
422
Raymond v. Longworth
484
Queen (The) v. Muscott
257
V. Raymond
281
Queen's (The) case 88,
201, 218,
0. Squire
173
234, 370, 371, 462, 463
465, 467
Raynham v. Canton
489, 505
Quick V. Staines
207, 210
Read v. Brookmau
45, 566
Quimby v. Buzzell
572
V. Dunsmore
73
V. "Wroth
430
V. James
445
Quincey v. Quinoey
285
V. Passer 86, 107, 493
V. Sutton
508
Reade's case
210
R.
Reading v. McCubbin
145
Rearden v. Minter
571
Kadburn v. Morris
428
Reay v. Richardson
197, 287
Radcliffe v. Fursman
240
Reece v. Rigby
49
V. United Ins. Co.
479, 491
V. Trye
240
INDEX TO CASES CITED.
It
Section
SecUon
Reed v. Anderson
563
Begin
a V. Hohnes
220
V. Boardman
427, 436
V. Hughes
252
V. Dick
no
V. Jones
241
V. Bickey
109
V. Kitson
662
V. Jackson 19, 135,
137, 139, 145
V. Laugher
222
V. Kemp
668
V. Mansfield
28
V. Lamb
307
V. Megason
156
V. Propr's of Lock
i, &c. 49, 237
V. Milton
130, 139
V. Rice
323
V. Mooney
158
E^es V. Overbaugh
566
V. Moore
223
V. Smith
74
V. Moreau
184
362, 537
V. Walters
142
V. Morse
227
V. Williams
572
V. Murphy 435
445
576, 680
Beeves v. Matthews
360
V. Newton
92
V. Slater
69
V. Overton
448
Regicide's case
256
V. Owen
226
Regina v. Adderbury
175
V. Parker
257
1- V. Arnold
224, 225, 229
V. Perkins
157, 168
V. Atwood
220
V. Philpots
436
V. Avery
243
V. Pikesley
224, 225
V. Baldry
220 a
V. Plummer
166
V. Ball
435, 444
V. Povey
488
«). Bannen
382
V. Roberts
257
V. Barber
580
V. SheUard
462
463, 465
V. Bedford
138
V. Spicer
66
V. Bickett
381
V. St. George
462
V. Bird
il66
V. Stoke
292
V. Birmingham
109
u. Taylor
449, 463
V. Blake
233
V. Vickery
83
V. Bond
65
V. Vincent
102
c. Boulter
257
V. Weller
227
V. Butler
218, 227
V. Wheeley
226
V. Caldwell '
580
V. Williams
335
V. Champney
257
V. Wooldale
69
V. Chapman
435
V. Worth
115
147, 150
V. Child
167
V. Yates
257
V. Olay
54
Reidt
. Battia
89
V. Coote
84
I
. Margison
508
V. Cranage
62
Reilly
V. Fitzgerald
131
V. Dent
488
Reitenback v. Reitenback
283
V. Buncombe
463
Remon v. Hay ward
280
V. Dyke
381
Renner v. Bank of Columbia
84, 292
V. Farley
239, 241
Respublica v. Bavis
187
». Ford
436
V. Gibbs
456
V. France
554
V. Keating
414,
V. Garbett
193, 225, 451
V. McCarty
218, 224
B. Gardiner
257
V. Ross
362
V. Garner
219, 220
Revett
V. Braham
76, 680
V. Gazard'
249, 804
Revis
V. Smith
452
V. Gould
231
Rexu.
Addis
381
r Hall
113
V.
Aikles
484, 493
V. Hankins
560
V.
Algood
473, 475
V. Hartington
534
V.
Al ison
86
■D. Hawks
233
V.
All Saints
342
V. Hearn
222, 232
V.
Almon
36, 234
V. Hewett
156
V.
Antrobus
138
V. Hill
365
V.
Appleby
199,
217, 233
V. Hincks
362
V.
Arundel
6,37
V. Holden
462. 465
V.
Ashtou
168, 162
Ivi
INDEX TO CASES CITED.
B«x«.
Section
Section
V. Atkins
195
Rex a. Dunn
223
V. Atwood
380
V. Durham
380
V. Babb
474
V. Edwards 449
457, 463
V. Baker
156
V. Ellis
225
V. Ball 53
224, 227
V. Embden
512
V. Barnard
380, 459
V. Enoch
218, 222
V. Barnes
195, 618
V. Eriswell 99, 125, 138
163, 553
V. Bartlett
215
V. Fagent
158, 159
V. Bathwiok
342, 670
V. Fagg
224
V. Beardmore
319
V. Farringdon
21
V. Bellamy
508
V. Farrington
34
V. Benson
82, 512
V. Fearshire
227
V. Bevan
403
V. Ferrers
343
V. Bonner
158, 160
V. Ferry Frysto'ne
125
V. Book
253
V. Fitzgerald
484, 493
V. Borrett
195
• V. Fletcher 218,
363, 379
V. Boston 362, 390,
414, 537
V. Ford
373, 378
V. Bishop of Ely
474
V. Forsyth
479
V. Brandreth
111
V. Foster
228
V. Brangam
471
V. Fox
418
V. Brasie
367
V. Francklin
491
V. Brewer
244
V. Frederick
335
V. Britton
193, 226
V. Fuller
34
V. Brommick
195
V. Fursey
84, 94
V. Brooke
445, 447
V. Gardiner
374
V. Brown
245
V. Gardner
195, 479
V. Bryan
21
V. Gay
161
V. Burditt
78
V. Gibbons 222
223, 248
V. Burley
379
V. Gilham
193, 229
V. Callahan
161
V. Gilroy
459
V. Careiniou 96,
372, 375
V. Gilson
87
V. Carty
227
V. Gisburn
95, 422
V. Castleton
558
V. Goodere
432
V. Cator
580
V. Gordon (Ld. George)
83, 92,
V. Chapman
435
482
V. ChappeU
90, 224
V. Green
229
V. Christie
158
V. Greene
225
V. Clapham
493
V. Greepe
378
V. Clarke 54, 102,
210, 469
V. Griffin
222, 232
V. Clewes 201, 218,
221, 223
V. Grimwood
484
V. Cliviger
342
V. Gully
6
V. Cole
390
V. Gutch
36, 234
V. CoUery
432
V. Harbome
35
V. Cook
432
V. Hardwick 112,
174, 175,
V. Cooper
221
223, 331
». Cope
116
V. Hardy
111, 250
V. Cotton
131
V. Hargrave
380
V. Court 218,
219, 229
V. Harringworth
569
V. Crockett
158
V. Harris 227
231, 257
V. Davis
225, 373
■ii. Hastings
380
V. Dawber
380
V. Hawkins
35, 80
V. De Beringer
V. Dean of St. Asaph
6,491
V. Hay
30
49
V. Hayward
158
V. Derrington
229
V. Hazy
78,82
V. Despard
382
V. Hearne
218
V. Dixon
18, 243
V. Hebden
536
V. Doherty
343
V. Higgins
218
V. Doran
87
D. Hodgdon
458
». Drummond
167
V. Hodgkiss
461
INDEX TO CASES CITED.
Ivii
Section
Section
Rex V. Hodgson
64
Kex V. Morton
558
V, HoUister
478
V. Mosley
158
V. Holt
479, 492
V. Mudie
267 a
V. Hood
835
V. Mutineers
363
V. Hostmen of Newcastle 475
V. JSTcale
381
V. Houghton
63
V. Neville
209
■u. Howard
83, 91, 92
M. Noakes
381
V. Howes
90
111, 142
V. Northampton
63
V. Hube
86, 96
V. North Pendleton
493
V. Hucks
66, 160
V. Nuneham Courtney
125
V. Hunt
28
M. Nutt
36
V. Hunter
246
V. Oldroyd
442, 444
V. Hutchinson
156
V. Page
558
V. Inhab. of Castle Morton 96
V. Paine
218
V. Inhab. of Holy T]
rinity 87, 96
V. Parker
257 a
V. Inhab. of Netherthong 333 '
V. Parratt
222
B. Jacobs
227
V. Partridge
34
, 220, 222
V. Jagger
343
V. Pedley
440
V. Jarvis
78
1}. Pegler
451
V. Jenkins
222, 232
V. Phillips
28
V. Johnson
40
V. Picton
488
V. Jones 6, 92,
218,
220, 222,
V. Pike
157, 367
232
319, 380
V. Pippitt
70
V. Jordan
28
V. Pitcher
458, 460
V. Justices of Buckingham 474
V. Plumer
40, 198
V. Justices of Surrey
478
V. Pountney
222, 223
V. Kea
253
V. I'ratteu
78
V. Kerne
195
V. Pressly
90, 228
V. King
484, 493
V. Priddle
373
V. Kingston
223
V. Purnell
474
V. Kirdford
331
V. Ramsden
437
V. Knill
257, 259
u. Rawden
87
17. KnoUys
6
V. Read
227, 228
V. Lafone
363
V. Reading
344, 457
V. Laindon
285
V. Reason et al.
156
159, 161
V. Leefe
65
V. Rhoades
484, 493
V. Lewis 225,
226
461, 457
V. Richards
221
V. Lingate
223
«. Rivers
224
225, 227
V. Lloyd
229
V. Roberts
53
V. Lloyd et al.
156
V. Roddam
312
v. Locker
335, 407
V. Rogers
78
V. Long Buckby
21,46
V. Rookwood
461
V. Lucas
473
V. Row
223
V. Luckup
403
V. Rowland
363
M. LufFe 5
28,
253, 344
V. Rowley
165
V. Magill
229
V. Rudd
335,
386, 413
V. Mahew
257
V. Russell
319, 559
V. Martin
54,
484, 493
V. Ryton
21
». Mashiter
280
V. Sadler
311
V. Mayor
536
V. Saunders
224
V. Mayor of London
331
V. Scaife
. 159
V. Mead
156, 343
V. Scammonden
285, 305
V. Merceron
193
V. Searle
440
V. Merchant Tailors
474
V. Sergeant
336, 343
V. Miller
6
V. Sextons
222
V. Mills
220, 222
V. Shaw
225,
229, 237
V. Moore
381
V. Shelley
83,
476, 478
« Morgan
371, 578
w. Shepherd
222
V Morris
612
i». Sheriff of Chester
473
Iviii
INDEX TO CASES CITED.
Section
Rexw. ShermRn 363
Rex V. Wilkes
Section
321
V. Shipley 18
V. Williams 367, 392
, 403, 412
V. Simons 45, 200, 224, 229
V. Withers
237, 479
V. Simpson 222, 223
V. Woburnl76, 330, 331
, 353, 462
V. Slaney 451
V. Woodcock 166,
158, 159,
V. Slaughter 223
161, 346
V. Smith 53, 243, 335, 473, 482,
V. Wright
440
508, 513
V. WyUe
53
V. Smith & Homage 224, 225
V.
34
V. Smithie 215
V. Ye win
450, 459
V. Spencer 223, 512
Rey V. Simpson
288
V. Spilsbury 158, 160, 227, 229
Reyner v. Hall
212
V. Steptoe 218
Reynolds v. Manning
120, 201
V. Stevens 39
V. Rowley
113, 246
V. St. Martin's 436, 437
V. Staines
171
V. St. Mary Magdalen, Ber-
Rhine v. Robinson
165
mondsey 333, 347
Rhodes v. Ainsworth
139, 405
V. Stone 78
V. Bunch
55
V. St. Pancras 531, 534
Ribbans v. Crickett
205
V. Sutton 5, 139, 491
Ricard v. Williams
17
V. Swatkins 222, 228
Ricardo v. Garcias
646 A
V. Tarrant 90, 228
Rice V. Austin
420
V. Taylor 222, 223
V. N.E. Marine Ins. Co
444
V. Teal 883, 458, 469
V. Rest
284
V. Teasdale 412
V. Rice
239 a
V. Tellicote 228
V. Wilkins
394
V. Thanet 364
Rich V. Flanders
177
V. Thomas 219, 223
V. Jackson
265, 281
V. Thornton 222, 225, 229, 230
V. Topping
399
V. Tilly 403
Richards v. Bassett 130
131, 137
V. Tower 473
V. Howard
118
V. Tubby 225
V. Morgan
563
V. Turner 78, 79, 233
Richardson v. Allen
443
V. Twining 35, 41
V. Anderson
173, 487
V. Tyler 218, 223
V. Carey
116, 389
V. Upchuroh 222, 223
V. Desborough
260 a
V. Upper Bod'dington 239
V. Dorr
24
V. Van Butchell 158, 160
V. Pell
81
V. Vaughan 432
V. Freeman
333, 427
V. Verelst 83, 92
V. Hooper
303
V. Virrier 257 a
V. Hunt
387
V. Wade 367
V. Learned
341
V. Walker 218, 225
V. Newcomb
681
V. Walkley 223
V. Watson
288
V. Waller 65
V. Williams
362
, V. Walter 36, 227, 234
Richmond v. Patterson
484
V. Waters 65
V. Thomaston
108
V. Watkinson 245
Rickards v. Mm-dock
441
V. Watson 40, 52, 65, 90, 101,
Rickets v. Salwey
63,72
111, 198, 250, 256, 423, 449,
Rickman's case
34,53
459, 460
Riddick v. Leggatt
301
e. Webb 225, 381
Riddle v. Moss
402
V. Wells 381
Ridgway v. Bowman
281
V. Westbeer 379
V. Ewbank
81
V. White 367
Ridley v. Gyde
108, 110
V. Whitley Lower 175
Rigg V. Curgenwen
200, 210
D. Wiokham 285
Riggins V. Brown
165
1). Wild 225, 229
Riggs V. Taylor
349
V. Wilde 6, 223, 229
Right V. Price
272
INDEX TO CASES CITED.
lix
Section
Section
Riley V. Gerrisli
281
Roe V. Lowe
46
V. Suydam
185
V. Rawlings 21
152
, 570
Rindge v. Breck
118
V. Reade
46
Ringgold V. Tyson
385
Roelker, In re
319
Rioters (Tlie)
412
Rogers v. Allen 58, 71
130
, 143
Eipley V. Tliompson
395
V. Berry
427
V. Warren
6
V. Custanco
562
Ripon V. Bavies
245
V. Dibble
421
Ripple V. Ripple
Rishton v. Nesbitt
505, 546
V. Pitcher
207
106
V. Thompson
533
Roach V. Garvan
545
V. Turner
395
V. Learned
108
V. Wood
129
136
Robb V. Starkey
560
Rogers's case
373
Bobbins v. King
254, 334
Rohan,!). Hanson
304
V. Otis
58, 68
Rohrer v. Morningstar
885
Roberts v. Adams
392
Rolf u. Dart
608
V. AUatt
451
Rollins V. Dyer
305
V. Doxon
93
Romero v. United States
6a
V. Simpson
246
Ronkendorff K. Taylor
493
V. Tennell
551
Root V. Fellowes
532
V. Trawick
392
V. King 55
482
491
V. WW ting
420
Ropps V. Barker
286
Roberts's case
221, 222
Rose V. Blakemore
451
460
Robertson v. French
278
V. Bryant
121
V. Lynch
58
V. Himely
6
541
u. Smith
427
V. Savory
118
V. Stark
440
Roseboom v. Billington
121
V. Teal
6
Rosevelt v. Marks
112
Robinson v. Batchelder
304
Ross V. Anstell
6
V. Cushman
211
V. Bruce
89
V. Dana
365
V. Buliler
364
V. Fitchburg R.R. Co. Hi a
V. Gould 49, 160
425
564
V. Flight
240 a
V. Lapham
55
V. Gilman
479
V. Reddick
6
V. Jones
643
V. Rhoads
145
V. Hutchinson
180, 462
Rothehoe v. Elton
396
V. Markiss
322
Rotherham v. Green
71
V. Nahor
27, 207
Rowe V. Brenton 151,
512
517
V. Prescott
505
V. Grenfel
5
V. Trull
311, 319
V. Hasland
41
V. Yarrow-
196
Rowland v. Asliby
224
227
Robinson's case
53
Rowlandson v. Wainwright
84
Robison v. Alexander
193
Rowley v. Ball
558
V. Sweet
108, 195, 527
Rowntrce v. Jacobs
26
Robson V. Drummond
281
Kowt V. Kile
581
V. Kemp
181, 240, 245
Ruan V. Perry
64
Roby V. Howard
76
Rucker v. Pa sgrave
205
Rochester v. Chester
440
Rudd's case
222
Roden V. Ryde
575
Rudge V. Ferguson
392
Rodman v. Forman
70
Ruggles V. Buckner
323
V. Hoops
118
Runilbrd v. Wood
331
Rodriguez v. Tadmire
55
Runk V. Ten Eyck
114,
485
Rodwcll V. Phillips
271
Rush V. Flickwire
402
v. Redge
35
V. Smith
445
Roe V. Archb'p of York
265
Rushforth V. Pembroke
164,
553
V. Day
197, 201, 287
Russell V. Beuckley
40
V. Ferrars
202
V. Blake
395
B. Ireland
45
V. Coffin
437,
4oy
». Jeffrey
180
V. Jackson 237,
240,
244
u
INDEX TO CASES CITED.
Section
Ktissell V. Eider
437, 466
Russel V. Werntx
287
Russian Steam Nav. Co.
V. Silva
^92
Rust V. Baker
41
Riistell V. Macquister
53
Rustin's case
366
Rutherford v. Rntherford
272
Rutland & B. R.R. Co. v. Sim-
son's Adm'r 329
Ryan v. Sams 207
Sabine v. Strong
323, 418
Sackett v. Spencer
440
Sage V. McAlpine
532
V. Wilcox
268
SainthlU v. Bound
449
Salem v. Lynn
108
V. Williams
208
Salem Bank v. Gloucester Bank 200,
208
Salisbury v. Connecticut 412
Salmon v. Ranoe 392
Saltar v. Applegate 20 a
Salte V. Thomas 484, 493
Saltmarsh v. Tutliill 385
Sample v. Frost 239 a
Sampson v. Overton 506
Sanborn v. Neilson 192
Sanches v. People 434 a
Sanderson v. CoUman 207
■b. Symonds 565
Sandford v. Chase 316, 317, 318
V. Hunt 75
V. Raikes 285
V. Remington 245
Sandilands v. Marsh 112
Sangster v. Mazarredo 177
Santissima Trinidad (The) 4
Sargeant v. Sargeant 172, 190, 353,
3.54
Sargent v. Adams 297
V. Pitzpatrick 632
V. Hampden 239 a
Sartorious v. State 432
Sassoer v. Farmer's Bank 5
Satterthwaite v. Powell 30
Saunders v. Hendrix 838
Saunders v. Mills 53
V. Wakefield 268
Saundcrson v. Jackson 268
V. Judge 40
V. Piper 297
Saunier'3 u. Wode 113
Savage v. Balch 180
V. Smith 69
Sectiun
Savignac v. Gairison 49
Sawyer v. Baldwin 484
V. Eifert 55
i/j re 222
V. Maine Fire & Marine
Ins. Co. 541
Saxton V. .Johnston 68
V. jSTimms 484
Sayer v. Wagstaff 438
Sayles v. Briggs 508
Sayre v. Reynolds 664
Saywiird v. Stevens 281
Scales V. Jacob 113
Scamuion v. Scammon 168, 190, 314
Scanlan v. Wright 671
Schaelfer v. Kreitzer 510
Schall V. Miller 167
Sehauber v. Jackson 46, 47
Schermei'horn v. Sehermerhorn 356
Schillinger v. McCanu 26, 420, 421
Schiuotti V. Biunstead 474
Schmidt V. New York, &c., Ins. Co. 55
Schnable v. KoeUer 409
Schnortznell v. Young 606
Schcefler v. State 225
Schooner Reeside 292
Schregcr v. Garden 205
SchucTiardt u. Aliens 51 a
Scorell V. Boxall 271
Seoresby v. Spai-row 349
Scott V. Blanchard 505
V. Brigham 118
p. Burton 284
V. Clare 86, 96, 203
V. Cleveland 505
V. Hooper 370
V. Hull 75, 76
V. Jones 89
V. Lifford 426
V. Lloyd 354, 385
V. Marshall 180
V. McLellan 391, 399, 401
V. Pilkington 546 6
V. Waithman 207, 571
V. Wells 416
Scovill V. Baldwin 37
Scraggs V. The State 104
Scribner v. McLaughlin 421
Scrimshire v. Scrimshire 545
Seaman v. Hogeboom 287
Searight ?). Craighead 112
Searle v. Ld. Barrington 122
Sears v. Brink 26!;
V. DilUngham 347
Seaver v. Bradley 392
V. Robinson 318
Seavy v. Dearborn 436, 443
Sebree v. Dorr 84, 87
Seddon v. Tutop 532
INDEX TO CASES CITED.
hi
Sedgwick v. Walkins
Seelcright v. Bogan
Selby V. Hills
Selden v. Williams
Selfe V. Isaacson
Sells V. Hoare
Selwood V. Mildway
Selwyn's case
Senior v. Armytage
Serchor v.. Talbot
Sergeson v. Sealey
Serlo V. Serlo
Settle V. Allison
Sewell V. Evans
V. Stubbs
Seymour v. Beach
V. Delancy
Seymour's case
Shack V. Anthony
Shafer v. Stonebreaker
Shaller v. Brand
Shamburg v. Commagere
Shankland v. City of Washington 281
Section
340, 343
349
316
295
432
371
289
80
294
69
556
897
506
575
422
519
284
84
303
531
144
885
21;
95, 97.
Shankwiker v. Reading
322
Shannon v. Commonwealth
423
Sharp V. Sharp
488 a
Sharpe v. Bingley
437
V. Lambe
560
V. Sharpe
581
Shaw V. Broom
190
V. Charlestown
440
■v. Emery
461
Sheafe v. Rowe
440
Shean v. Philips
239 a
Shearman v. Aikens 116
, 120, 147
Shedden v. Patrick 104 a, 1
33, 469 a
Sheehy v. Mandeville
69, 539 a
Sheen v. Bumpstead
101 a
Sheffield v. Page
284 a
Shelby v. Smith
420
V. The Governor, &c.
187
V. Wright
23,26
Shelbyville v. Shelbyville
40
Sheldon v. Benham
116, 280
V. Clark
79
Shelling v. Farmer
474
Shelly V. Wright
531 a
Shelton v. Barbour
164
V. Cocke
112
Shelton v. Deering
568 a
V. Livius
271
Shepard a, Palmer
416
Shepherd v. Chewter
212
V. Currie
38
V. Little
26
V. Thompson
145
Sherburne v. Shaw
268
Sheridan v. Kirwin's case
90
Sheriff V. Wilkes
174
Section
Sherman v. Akins 120
V. Barnes 396
V. Crosby 116, 120, 147, 152
V. Sherman 197
Sherrington's case 221
Sherwood v. Burr 17
Shields v. Boucher 103
Shires v. Glasscock 272
Shirley v. Shirlc\' 268
W.Todd' 190
Shoenberger v. Zook 304
Shoenbergher v. Hackman 82
Shore v. Bedford 239, 243, 245
Shorey v. Hussey 443
Short V. Lee 83, 115, 14.7, 149, 153,
154, 155
V. Mercier 451
Shortz V. Unangst 558
Shott V. Streatfield 101
Shdtter v. Friend 260 a
Shown V. Barr 506
Shrewsbury (Carpenters of)
V. Hayward 405
Shrewsbury Peerage 105, 106
Shrouders v. Harper 558
Shumway v. Holbrook 518
V. Stillman 548
Shuttleworth v. Bravo 392
Sibley v. Waffle 239
Sidney's case 576
Silk V. Humphreys 81
Sillick V. Booth 30, 41
Sills V. Brown 440, 537, 553
Silver Lake Bank v. Harding 505
Simraonds, In re 272
Simmons v. Bradford 27
V. Simmons 257, 381
Simpson v. Dendy 53 a
V. Fogo 546 6, 546 e
V. Margitson 49, 277
v. Mon-ison 112
V. Norton 509
V. Stackhouse 564
V. Thoreton 479, 558
Sims V. ICtchen 314
V. Sims 558
Sinclair v. Baggaley 121
V. Eraser 546
V. Sinclair 545
V. Stephenson 275, 284, 437.
466, 560
Singleton v. Barrett 90, 97
Sisk V. Woodruff 489
Sissons V. Dixon 35
Skaife V. Jackson 172, 173, 174, 211
Skilbeck v. Garbett 40
Skinner v. Perot 374
Skipp V. Hooke 5
Skipworth v. Greene 26
Ixii
INDEX TO CASES CITED.
Section
Slack V. Buchannan 192
u. Moss 385
Slade M. Teasdale 118
Sladden v. Sergeant 463
Slane Peerage (The) 104
Slaney v. Wade 104, lS4
Slater v. Hodgson 570
V. Lawson 174, 176
Slatterie v. Pooley 96, 96 a, 203
Slaymaker v. Gundacker's Exr. 176
V. Wilson 577
Sleeper w. Van Middlesworth 431
Sleght V. Rhinelander 280
Sloan V. Somers 165, 166
Sloman v. Heme 180, 181
Sltiby V. Champlin 572, 575
Small V. Leonard 532
Smallcorabe v. Bruges 181
Smart v. Rayner, 75
Smiley v. Dewey 349
Smith V. Arnold 268
V. Barker 68
V. Battens 121
V. Beadnell 193
V. Bell 287
V. Blaokham 390
V. Blagge 506
u. Blandy 201
V. Brandram 73
V. Brown 305
V. Burnham 200, 214
V. Castles 323, 457
V. Chambers 392
V. Coffin 369, 370
V. Cramer 108
V. Crooker 567, 668
V. Cutter 456 a
V. Davies 81
V. De Wruitz 190
V. Downs 887, 388
!). Dunbar 568
V. Dunham 668
V. Fell 239
V. Fenner 581
V. Gugerty 440
V. Hyndmau 55
V. Jeffreys 281
V. Jeffries ~ 79
V. Knowelden 73
V. Knowlton 41, 540
V. Lane 437
V. Ludlow 112
V. Lyon 180
V. Martin 109
V. Moore 78
V. Morgan 179, 436, 469
V. Nicolls 546 h
V. Nowells 145
V. Palmer 96, 96 a, 203
Section
Smith V. People
462
. V. Potter
253 a, 480
V. Powers
109, 145
V. Prager
386, 409
V. Prewitt
145
V. Price
442, 444
V. Prickett
465
V. Redden
513
V. Sanford
117, 334
0. Scudder
185
V. Simmes
180
V. Sleap
560
V. Smith
38, 107, 189
V. Sparrow
351, 421
V. State
158
V. Stickney
469
V. Surman
271
V. Taylor
63, 195
V. Thompson
300
V, Vincent
176
V. Whitaker
488 o
V. Whittingham
187
V. Wilson
49, 280, 292
V. Young
90, 560
Smith's case
236
Smythe v. Banks
316
Snell v. Moses
58
0. Westport
329
Snellgrove v. Martin
109, 190
Snow V. Batchelder
75, 192, 421
V. Eastern Railroad Co. 348
Snowball v. Goodricke 180
Snyder v. Nations 366
V. Snyder 334, 341, 434
Societj', &c. V. Wheeler 19
V. Young 46
Solaman v. Cohen 320
Solarete v. Melville 388
Solita !). Yarrow 578
Solomon «. Solomon 206
Solomons v. Bank of England 81 a
Somes V. Skinner 24
Soulden v. Van Rensselaer 430
Soule's case 343
Southampton (Mayor of)
V. Graves 474
Southard v. Rexford 461
V. Wilson 401, 422, 426
Southey v. Nash 432
Southwick V. Stevens 36, 89, 234
V. Hapgood 281
Souvereye v. Arden 361
Soward v. Leggatt 74, 81
Sowell V. Champion 358
Spangle v. Jacoby 491
Spargo V. Brown 116, 120, 147, 171
Sparhawk v. BuUard 38
Spaulding v. Hood ' 74, 75
I'. Vincent 488
INDEX TO CASES CITED.
Ixiii
Spear v. Richardson
Spction
434 a
Spears v. Forrest
462
V. Ohio
219
Speer v. Coate
145
Spence v. Chodwick
488
V. Saunders
118
V. Stewart
317
Spenceley v. DeWillott
449, 455
Spencer v. Billing
93
V. Goulding
416
u. Roper
41
V. William
621
Spicer v. Cooper
280
Spiers v. Clay
26
V. Morris
120
V. Parker
19,78
V. Willison ,
87
Sprague v. Cadwell
462
V. Litberberry
19
V. Oakes
632
Spring Garden Ins. Co. v. Riley 438
Spring V. Lovett
281
Springstein !>. Field
55
Sprowl B. Lawrence
5
Spurr V. Pearson
389
V. Trimble
41
Stables v. Eley
208
Staokpole v. Arnold 212, 275
281, 305
Stacy V. Blake
179
Stafiford v. Clark
531, 532
V. Rice
385
Stafford's (Ld.) case
235, 255
Stafford Bank v. Cornell
416
Stainer v. Droitwitch
497
Stall V. Catskill Bank
387, 430
Stammers v. Dixon
293
Stamper v. GrifBn
463
Standage e. Creightou
186
Standen v. Standen
301
Stanley v. White
147, 197
Stansfield v. Levy
76
Stanton v. Wilson
334
Staples V. Goodrich
532
Stapleton v. Nowell
205
Stapylton v. Clough 99
116, 120
Stark V. Boswell
199
Starkey v. People
161 a
Starks v. The People
469
Starkweather v. Loomis
605
V. Matthews
420
State (The) v. Adams
34
V. Allen
580,-581
V. Bailey
457
V. Bartlett
613
V. Boswell
461
0. Brookshire
432
V. Broughton
225
1). Burlingham
335
V. Caffey
70
State
(The) V. Cameron
156, 161
V. Candler
376
V. Carr
489, 681
V. Coatney
349
V. Colwell
436
V. Cowan
220
v., Croteau
49
V. Crowell
79
V. Davidson
175
V. Davis
343, 462
V. De Wolf
366
V. Dill
319
V. Dunwell
6
V. Ferguson
160
0. Foster
362
V. Freeman
220, 252 a
V. Grant
219
V. Harman
219
V. Hayward '
257
V. Hinchman
513, 540
V. Hooker
165
V. Howard
103, 160
, V. Isham
602
V. Jolly
337
v.-fi
451
V. Kirby
:■' 223
V. Lewis
20
V. Littlefield
171, 195
V. Lull •
436
V. Mahon
218
V. McAlister
51 a, 306
V. McDonnell
84
V. Molier
257
V. Morrison
79
V. NelU
344
v. Norris
444
V. O'Connor
481
V. Parish
227
V. Patterson
449, 456
V. Peace
156
V. Pettaway
344
V. Pierce
49
V. Poll
158, 160
V. Powers
6
V. Rawls
199, 437
V. Ridgely
375, 376
V. Roberts
221
V. Rood
488
V. Rowe
469
V. Sater
461
V. Shearer
79
V. Shellidy
108
V. Shelton
156
V. Simmons
414
V. Snow
49
V. Soper
233
V. Sparrow
432
V. Stade
489, 5U5
V. Stanton
414
Ixiv
INDEX TO CASES CITED.
Section
Section
State (The) v. Stinson
370
Stockfleth V. De Tastet
193
V. Thibeau
233
Stockham v. Jones
358
V. Tliomason
157
Stockton V. Demuth 113
442, 443
V. Vaigneur
221
Stoddard v. Palmer
56
u. Vittum
372
Stoddart v. Palmer
70
V. Welch
342
V. Manning
452
V. Wentworth
229
Stoever v. Whitman
280
V. Whisenhurst
371
Stokes V. Dawes
104, 556
V. Whittier
367
V. Stokes
115, 147
V. Williams
6
Stonard v. Dunkin
207
V. Worthing
335
363
Stone V. Bibb
356
St. Clair v. Shale
109
V. Blackburne
421
Stead V. Heaton
150
V. Clark
293, 301
Stearns v. Hall
302
304
V. Crocker
471
V. Hendersass
109
V. Forsyth
618
V. Stearns
628
V. Hubbard
280
Stebbing v. Spicer
38
V. Knowlton
56,68
Stebbins v. Sackett
422
423
V. Metcalf
283
Steed V. Oliver
361
V. Ramsay
200
Steel w Prickett
130
V. Vance
385
Steele v. Smith
548
V. Varney
66
V. Stewart
239
Stoner's appeal
287
V. Worthington
26
Stoner v. Byron
364, 386
Steers v. Cawardine
397
V. E Us
485
Stein V. Bowman 19
334
337
Stoop's case
346
V. Weidman
253 a
Storer v. Batson
266
Steinkellen v. Newton
88
438
V. Elliot Fire Ins. Co.
288
Steinmetz v. Currie
430
V. Freeman
288
Stephen v. State
5
Storey v. Lovett
569
Stephens v. Foster
466
Storr et al. v. Scott
196
V. Vroman
96 a
200
V. Finnis
205
V. Winn
268
Story V. Kimball
513
Stephenson v. Bannister
606
V. Watson
73
Sterling v. Potts
558
Stouifer v. Latshaw
284
Sterrett v. Bull
117
Stout ti. Russell
457
Stevens v. McNamara
41
11. Wood
421
V. Pinnay
89
StowoU V. Robinson
302
u. Taft
20
Straker v. Graham
252 a
!). Thacker
184
Stralding v. Morgan
293
Stevenson v. Mudgett
429
Strange v. Dashwood
572
V. Nevinson
605
Stranger v. Searle
577
Stewart v. Alison
498
Straton v. Rastall 207
212, 305
V. Cauty
49
Streeter v. Bartlett
569
V. Doughty
271
Strickler ». Todd
17
V. Huntington Bank
332
Strode v. Wincliester
147, 266
V. Kipp
392
409
Strong V. Bradley
613
V. Saybrook
331
Strother v. Barr
87,96
Stewartson v. Watts
113
Strutt !). Bovingdon
531
St. George v. St. Margaret
Stiles V. Jhe Western Eailro
28,40
Studdy V. Sanders
210, 507
ad
Stukeley v. Butler
60, 301
Co.
110
113
Stump V. Napier
385
Still V. Hoste
289
Sturdy v. Arnaud
303
Stimmel v. Underwood
387
388
Sturge V. Buchanan
116, 201
St. Mary's College v. Attorney-
Summers v. Moseley
445
General
46
Summersett v. Adamson
203
Stobart v. Dryden
156
Sumner v. Child
17
Stockbridge v. W. Stockbridge
21
V. Sebec
484
Stockdale v. Hansard
6
V. Williams
101
V. Young
558
Sussex (Earl of) v. Temple
189
INDEX TO CASES CITED.
Ixv
Section
Section
Sussex Peerage case
99, 104, 147
Taylor v. Luther
385
Sutton V. Bishop
413
V. Moseley
664
V. Kettell
305
V. Ross
268
V. Sadler
42
V. Sayre
281
Suydam v. Jones
302
V. Tucker
118
Swain V. Lewis
561
17. Weld
284
Swallow V. Beaumont
68, 66, 68
V. Willans
49, 101, 186
Sweet V. Lee
282, 299
Teal V. Auty
271
V. Sherman
469
Teall V. Van Wyck
672
Sweigart v. Berk
529
Teese v. Huntington
2
Swift V. Bennett
116
Tempest v. Kilner
2G7
V. Dean
421
Tenbrook v. Johnson
118
V. Eyres
301
Tennant v. Hamilton
449
V. Stevens
658
V. Strachan
392
Swing V. Sparks
118
Tennessee (Bank of) v.
Sowan 115
Swinnerton v. Marquis
of Staf-
Tenny v. Evans
179
ford
21, 142, 485
Terrill v. Beecher
118
Swire J). Bell
572
Terrett v. Taylor
23, 24, 331
Sybra v. White
183
Terry v. Belcher
337
Syers v. Jonas
293
Tewksbury u. Bricknell
Texira v. Evans
72
Sykes v. Dunbar
252
568 a
Sylvester v. Crapo
190
ThaUhimer v. BrinckerhofF 113
Symmons v. Knox
60
Thayer v. Grossman
385, 401
Symonds ». Carr
66
V. Stearns
484
V. Lloyd
292
Theakston v. Marson
260 a
Thelluson v. Cosling
491
Theobald v. Tregott
416, 417
Thomas & Henry v. U. States 323
T.
Thomas Jefferson (The)
6
Thomas v. Ainsley
96
Calbot V. Clark
621
V. Cummins
319
V. Seeman
487, 491
V. David
432, 450
Tallman v. Dutcher
421, 426
V. Dyott
118
Tarns V. Bullitt
81 a
■0. Graves
260 a
Taney v. Kemp
452
V. Hargrave
341
Tanner v. Tay or
437
V. Jenkins
139
Tannett's case
66
V. Ketteriche
550
Tajjlin v. Atty
660
V. Newton
451
Tappan v. Abbott
197 a
V. Robinson
605
Tarleton v. Tarleton
643
V. Tanner
506
Taunton Bank v. Richardson 849
V. Thomas
197, 289, 291
Tawney v. Crowther
268
V. Turnley
576
Tayloe v. Riggs
82, 349
Thomas's case
228
Taylor v. Bank of Alexandria 489
Thompson v. Armstrong
389
V. Bank of Illinois 489
V. Austen
192, 201
V. Barclay
4, 5, 6, 6 a
V. Bullock
144
V. Beck
385
V. Davenport
196
V. Blacklow
240
V. Donaldson
550
V. B riggs
278, 279, 292
V. Freeman
102, 341
V. Bryden
548
V. Ketchum
■ 281
V. Cook
139
V. Lockwood
284
V. Croker
196, 207
V. Monrow
488 a
V. Diplock
30
V. Musser
489
V. Dundass
621
V. Roberts
531
V. Foster
186, 239
V. Stevens
120, 152
V. Henry
484
V. Stewart
6, 514
In re
107, 108
V. Travis
658
V. Johnson
565
Thompson's case
220
V. Lawson
432
Thorndike v. Boston
108
Ixvi
INDEX TO CASES CITED.
Section
SecHon
Thonidike v. Richards
301
Trelawney v, Coleman
102
Thornes v. White
310
V. Thomas
887
Thornton v. Blaisdell
266
Tremain v. Barrett
310
V. Jones
66
V. Edwards
118
V. Royal Ex. Ass.
Co.
440
Trevivan v. Lawrence >
23
, 531
V. Wykes
69
Tripp V. Gery
86
Thornton's ease
220
, 222
Trischet v. Hamilton Ins. Co
463
Thorpe f. Barber
357
Trotter v. Mills
502
V. Cooper
532
Trowbridge v. Baker
195
V. Gisburne
577
Trowell v. Castle
511
, 564
Throgrnorton v. Walton
41, 81
Trowter's case
161
Thurman v. Cameron
573
Truslove V. Burton
186
Thurston v. Masterson
21
Trustees, &c. v. Bledsoe
114
V. Whitney
369
V. Peaslee
290
,291
Tibeaii v. Tibeau
568
Trustees Ep. Ch. Newbern
Tickel V. Short
194
V. Trustees Newbern Acad
21
Tiernan v. Jackson
172
Truwhitt v. Lambert
89
Tiley V. Cowling
195
527
Tucker v. Barrow
193
Tilghman v. Fisher
196
V. Maxwell
212
, 305
Tillotson V. Warner 501
,508
509
fc. Peaslee
51a
Tillson V. Smith
296 01
V. State
6
Tillou V. Clinton, &c. Ins. Co.
564
V. Tucker
75
Tindall, In re
41
V. Welsh
89
Tinkham v. Arnold
17
Tufts V. Hayes
207
Tinkler v. Walpole
494
TuUis V. Kidd
440
Tinkler's case
157
158
Tullook V. Uunn
176
Titford V. Knott
581
Turner v. Austin
394
Title V. Grevett
384
V. Coe
421
Titus V. Ash
66
462
V. Crisp
121
Tison V. Smith
6 a
V. Eyles
56
Tobin V. Shaw .
558
V. Lazarus
356
Tod V. Earl of Winohelsea
163
272
V. Pearte
421
V. Stafford
385
V. Twing
118
Tolman v. Emerson
142
444
V. Waddington
506
Torakies v. Reynolds
108
V. Yates
182
560
Tomlinson v. Borst
118
Turney v. The State
434
Tompkins v. Ashby
551
Turquand v. Knight
239
V. Attor.-Geueral
484
Tutt e V. Broivn
113
V. Curtis
430
Tutton V. Drake
497
V. Phillips
207
Tuzzle V. Barclay
51a
V. Saltmarsh
108
Twambly v. Henley
384
397
Tong's case
233
Twiss V. Baldwin
60,64
Tooker v. D. of Beaufort
6
Tyler v. Carlton
26
Topham v. McGregor
437
V. Ulmer 180,
394
639
Tousley v. Barry
190
V. Wilkinson
17
Towle V. Blake
118
Tyer's case
63
Town V. Needhaui
421
Townley l'. Woolley
118
Towns V. Alford
435
u.
Townsend v. Bush
379
385
J V. Downing
391
395
Ulen V. KittredgR
269
V. Graves
54
Ulmer v. Leland
78
V. The State
49
Underbill v. Wilson
180
V. Weld
281
Underwood v. Wing
30
I'racy v. Peerage
581
Union Bank v. Knapp 118,
168,
368,
Trant's case
160
474
Travis v. .January
246
V. Owen
430
Treat D. Strickland
109
Unis V. Charlton's Adm'-
462
Trcgany v. Fletche-
6
United States v. Am^A*
489
INDEX TO CASES CITED.
Ixvii
Section
United States u. Batiste 49,97
V. Benner 479
V. Breed 280
V. Britton 65, 84
V. Buford 73, 498
V. Burns 5, G
V. Cantrill 300
V. Castro 142, 143, 485
V. Chapman 221
V. Cusliiiian 539 a
V. Edme 316
V. Gibert 84, 233, 495
V. Gooding 233
V. Hair Pencils 241
V. Hanway 256
■o. Hayward 79, 80
V. Johns 4, 485, 489
V. King 6, 6
V. Leffler 284, 385
V. Macomb 164, 165
V. McNeal 65, 70
V. Mitchell 479
V. Moore 311
V. Moses 250
•<;. Murphy 350,412
V. Nelson 368 a
V. Nott ' 219
V. Palmer 4
V. Percheman 485
V. Porter 65
V. Reyburn 82, 83, 92
■V. Reynes 6
V. Smith 430
V. Spaulding 566
V. Sutter 84
V. Tcschmaker 6 a
V. Turner • 6
V. Wilson 412
V. Wood 165, 257, 258
U. States Bank v. Corcoran 2
V. DanJridge 21
V. IJunn 40, 83
V. Glass Ware 385
V. Johnson 489
V. La Vengeance 6
V. Stearns 416
Utica (Bk. of) v. HiUarrt 385, 474,
559
V. Morsereau 240,
243, 422
V. Smalley 430
Utica Ins. Co. v. Cadwell 430
Vacher v. Cooks
Vail V. Lewis
V. Nickerson
108
60
371
Section
Vail V. Smith
501
V. Strong
197 a
Vaillant v. Uodemead
243, 248
Vaise v. Delaval
252 a
Valentine v. Piper
575
Vallance v. Dowar
292
Valton V. National Loan, &o. Soc. 322
Van Buren v. Cockburn 165
V. Wells 61 a
Vanbuskirk v. Mullock 489
Vance v. Reardon 501
V. Schuyler 573
Vandenheuvel t>. U. Ins. Co. 543
Vanderwerker v. The People 6
Van Deusen v. Frink 429
V. Slyck 358
Vandine v. Burpee 440
Van Dyke v. Van Buren 46
Vane's (Sir Henry) case 256
Vanhorne v. Dorrance 564
Van Ness v. Packard 2
Van Kuys v. Terluuie 389
Van Omeron v. Uowick 40, 479
Vanquelin v. Bonard 546 g
Van Keimsdyk v. Kane 112, 174, 177,
178
Van Sandau v. Turner 6
Van Shaack v. Stafford 427
Van Valkenburg v. Rouk 284
Van Vechten «. Groves 173
Van Wyek v. Mcintosh 678
Vanzant v. Kay 395
Vass's case 160, 161 a
Va*e V. Mifflin 559
Vau V. Corpe 361
Vaughan v. Fitzgerald 652
V. Hann 214
V. Martin 438
V. Worrall 421
Vaughn v. Perrine 468
Vaux Peerage case (The) 497
Vodderu. Wilkins 568
Venning v. Shuttleworth 899
Vent u. Pacey 240 a
Verry v. Watkins 54
Vicary v. Moore 303
Vicary's case 174
Villiers v. Villiers 84
Vinal V. BurriU 87, 112, 356
Vincent v. Cole 88, 304
Viney v. Bass 52
Vinnicombe v. Butler 20 a
Violet V. Patton 268
Voce V. Lawrence 322
Volant u. Soyer 246
Vooght V. Winch 631
Vosburg V. Thayer 118
Vose V. Handy 801
V. Morton 623, 528.
[xviii
INDEX TO CASES CITED.
Section
Vowels V. Miller 60, 72
V. Young 103, 105, 334, 342
W.
Waddington v. Bristow 278, 578
V. Cousins 573, 580
Wadley v. Bayliss 293
Wafer v. Hempkin 168
Wagers v. Dickey 165
Waggoner v. Richmond 118
Wagstaffw. Wilson 186
Wain V. Warlters 268
Waite V. Merrill 427
Wake V. Hartop 284 a
V. Lock 396, 421, 426
Wakefield v. Ross 328, 339, 369
Wakefield's case 339, 343, 374
Wakeley v. Hart 368
Walden a. Canfield 6
V. Craig 73
V. Sherburne 112
Waldridge v. Kenison 192
Waldron v. Tuttle 130
u. Ward 243
Walker v. Broadstock 109, 189
V. Countess of Beau-
champ 131
V. Dunspaugh 435
V. Ferrin 427
V. Giles 409
u. Hunter 49
». Kearney 374
V. Protection Ins. Co. 440
V. Sawyer 425
V. Stephenson 54
V. Walker 165
V. Welch 66
V. Wheatley 302
V. Wildmau 237, 240
V. Wingfield 485
V. Witter 546
VValker's case 189
Wall V. MoNamara 532
Wallace v. Cook 484, 493
V. Rogers 305 a
V. Small 192
V. Twyman 420
WaUisu Littell 284 o
V. Murray 569
Walsingham (Ld.) v. Good-
ricke 240 a, 244
Walter v. B oilman 117
V. Haynes 40
Walters ». Mace 64
v. Rees 817
V. Short 564
Walton u. Coulson 21
Soction
Walton ». Green 110,185,341
V. Shelley 383, 385, 389
V. Tomlin 366
V. Walton 260
Wambough v. Shenk 41
Wandless v. Cawthorne 95, 422
Ward V. Apprice 349
V. Haydon 357
V. Howell 112
V. Johnson 639
V. Lewis 38
V. Pomfret 155
V. Sharp 462
V. The State 161 a
V. Wells 672
V. Wilkinson 398
Warde v. Warde 241
Warden v. Eden 173
V. Fermor 572
Wardle's case 65
Ware v. Brookhouse 109
V. Hayward Rubber Co. 292
V. Ware 52, 77, 449, 462
Waring v. Waring 365
Warner v. Harder 485
V. Price ' 116, 120
Warren i'. Anderson 575
V. Charlestown 331
V. Comings 531, 632
V. Flagg 505
V. Greenville 119, 147, 149,
150, 164
V. Lusk 488 a
V. Nichols 165
V. Warren 40
V. Wheeler 277
Warrickshall's case 214, 215, 219, 231
Warriner v. Giles 484
Warrington v. Early 568
Warwick v. Bruce 271
V. Foulkes 63
Washburn v. Cuddihy 497
Washington S.P. Co. v. Sickles 532
Waterman v. Johnson 288, 301
Watertown v. Cowen 175
Watkins v. Holman 479, 480, 482
V. Morgan 73
V. Towers 27
Watson V. Blaine 26
V. Brewster 104
V. England 41
V. Hay 6
V. King 41, 186
V. Lane 207
V. McLaren 430
V. Moore 55, 201
V. Tarpley 49
J). Threlkeld 27,207
V. Wace 204, 207
INDEX TO CASES CITED.
Isix
Section
Watts V. Friend
271
V. Howard
118
V. Kilburn
572
V. Lawson
192
V. Thorpe
181
Waugli V. Bussell
69, 567
Wayman v. Hillard
192
Waymell v. Read
284, 488
Weakly v. Bell
207
Weall V. King
58, 64
Weaver v. McElhenon
6
Webb V. Alexander
613
V. Man. & Leeds R.R. Co. 440
V. Page 310
V. Smith 179, 248
V. St. Lawrence 575
Webber v. Eastern Railroad Co. 640
Webster ». Clark 118,436
v: Hodgkins 89, 282
V. Lee 447, 532
V. Vickers 885
V. Webster 115
V. Woodford 284
Wedge V. Berkeley 49
Wedgewood's case 484, 493
Weed V. Kellogg 180, 322
Weeks v. Lowerre 163
V. Sparke 128, 129, 130, 136,
137, 138, 145, 146
Weems v. Disney 145
Weguelin v. Weguelin 321
Weidmanu. Kohr_ 109,189
Weidner v. Schweigart 38
Weigly M. Weir 26
Welborn's case 158, 160
Welch V. Barrett 115, 116, 147
V. Mandeville 173
V. Seaborn 38
Weld V. Nichols 539
Welden v. Buck 423
Welford v. Beezely 268
Welland Canal Co. o. Hathawav 86,
96 a, 203, 204
Weller v. Gov. Found. Hosp. 331, 333
Wei's V. Compton 195, 301, 527 a, 539
■u. Fisher 339
V. Fletcher 207, 339
V. Jesus College 138
V. Lane 333
V. Porter 293
V. Stevens 513
V. Tucker 338
Welsh V. Rogers 323
Wendell v. George 385
Wentworth v. Lloyd 240
Wertz V. May 469
West V. Davis 97
V. Randall 392
V. State 577
Section
West V. Steward 568 a
West Boylston v. Sterling 323
Westbury v. Aberdein 441
West Cambridge v. Lexington 109
Weston V. Barker 173
V. Chamberlain 281
V. Ernes 281
■v. Penniuian 494
Wetmore v. Mell 108
Whateley v. Mcnheim 531
Whatley v. Fearnley S92
Wheater's case 226
Wheatley v. Williams 245
Wheelden v. Wilson 53
Wheeler v. Alderson 101
V. Hambright 180
V. Hatch 437
V. Hill 237
V. McCorrister 189
V. Moody 6
V. Webster 488 a
Wheeling's case 217
Wheelock v. Doolittle 113
Whelpdale's case 284
Whipple V. Foot 271
V. Walpole 440
Whitaker v. Bramson 70
, V. Salisbury 572
V. Smith 58
Whitamoro v. Waterhouse 394, 427
Whitbeck ». Whitbeck 26
Whitcher v. Shattuck 101
Whitcomb u.-Whiting 112, 174
White V. Ballou 440 a
V. Coatsworth 632
V. Crew 260
V. Everest 452
V. Foljambe 46
V. Hale 112, 174
V. Hawu 371
V. Hill 358
V. Judd 310
V. Lisle 130, 137, 138
V. Parkin 303
V. Philbrick 533
V. Proctor 269
V. Sayer 294
V. Trust. Brit. Museum 272
u. Wilson 58, 68, 81, 281
White's case 65, 217, 328, 365
Whitehead v. Scott 89, 101
V. Tattersall 184
Whitehouse v. Atkinson 394, 420
V. Bickford 145, 485, 670
Whitehouse's case 343
Whitelocke v. Baker :03, 104, 131
V. Musgrove ' 575
Whitesell v. Crane 348
Whitfield V. Collingwood 564
INDEX TO CASES CITED.
Whitford V. Tutiu
Whitlock V. Ramsay
Whitmarsh v. Angle
V. Walker
Whitmer v. Frye
Section
87
69
440
271
568
Whitmore u. S. Boston Iron Co. 292
V. Wilks 347
Whiteside's appeal 41
Whitney v. Bigelow 121
V. Ferris 177
V. Heywood 323
Wliittemore v. Brooks 572
Whittier v. Smith 207
Whittuek v. Waters 493
Wiiitwell V. Suheer 73
r. Wyer 201
Whyman v. Garth 569
Wickens v. Goatley 6
Wickes «. Caulk 664
Wicks V. Smallbroke 375
^Viggju V. Lowell 333
Wiggieoworth v. Dallison 294
V. Steers 284
Wike V. Lightner 461
Wikoll''s appeal 564
Wilbur V. Selden 115, 147, 163, 165
V. Strickland 232
V. Wilbur 571
Wilcooks V. Philhps 488
Wilcox V. Smith 83
Wilde V. Armsby 564
Wiley V. Bean 572
V. Moor • 568 a
Wilkinson v. Johnson 566
V. Lutwidge 196
V. Scott 26, 305
V. Yale 323
Willard v. Harvey 508
V. Wickham 427
Williams v. Amroyd 541
V. Baldwin 254
V. Bartholomew 207
V. Bridges 180, 181
V. Bryant 69
V. Byrne 49
«. Cheney 171, 195, 652
V. Callender 55
V. E. India Co. 35, 40, 80
V. Byton 20
V. Geaves 115, 150, 151
V. Gilman 288
u. Goodwin 430
V. Hing. &c. Ttirnp. Co. 78
». Imies 27, 182
V. Johnson 342
v. Muudie 240
V. Ogle 65
V. Stevens 892
1;. Thomas 74, 192
SectioB
568
385
443
485
602
165
45, 200
311
51, 60, 63
205
212
316
354
102
197
558
104'
265
66
4,5
354
118
46
144
156
89
201
195
511
409
118
41, 81
434 a
548
V. 'Rastall 237, 239, 243, 247
B. Rogers 473
V. Troup 237, 241
V. Turner 27
«. Wilson 118
Wilson's case 2:;;5
Wilton u. Girdlestone 521
V. Webster 102
Wiltzie V. Adamson 197, 198
Winans v. Dunham 51 1
Winch V. Keeley 172
^\''ing V. Angrave 30
Wimi V. Chamberlain 293
V. Patterson 21, 142
Winnipissogee Lake Co. v. Young fi
Winship V. Bank of U. S. 148, 167
Winslow V. Kimball 341
Winsmore u. Greenbauk 183
Winsor v. Dillaway 1 18
V. Pratt 273
Winter v. Butt 467
V. Wroot 102
Wishart o. Downey 669
Wishaw V. Barnes 408
Withee v. Rowe 58)
Williams v. Van Tuyl
V. Walbridge
V. Walker
V. Wetherbee
V. Wilkes
V. Willard
V. Williams
Williams's case
Williamson v. Allison
u. Henley
V. Scott
Willingham v. Matthews
Willings V. Consequa
Willis V. Barnard
■B. Jernegan
V. McDole
V. Quimby
Willis's case
Williston V. Smith
Willoughby V. Willoughby
Wills v. Judd
Wilmer v. Israel
Wilson v. Allen
V. Betts
V. Boerem
V. Bowie
V. Calvert
V. Carnegie
V. Conine
V. Gary
V. Goodin
■u. Hodges
V. McCuUough
V. Niles
INDEX TO CASES CITED.
Ixxi
Section
Section
Withers v. Atkinson
568
Wright V. Hicks
462
V. GlUespy
563
V. Howard
17
Withnell v. Gartliam
138, 293
V. Littler
166
Witiner v. Schlatter
539
V. Netherwood
30
Witnash v. George
116, 150, 187
V. Phillips
6
Wogan V. Small
440
V. Sarmuda
30
Wolcott V. Uall
55
V. Sharp
118
Wolf D. Washburn
498, 513
V. Tatham 82,
101,
108,
163,
V. Wyeth
165
164
535
, 553
WoUey V. Brownhill
347
V. Willcox
469 a
Wood V. Braddick
112, 177
V. Wright
272
V. Braynard
392
Wyatt V. Gore
261
V. Cooper
V. Davis
437
V. Hodson
174
524
V. Lord Hertford
207
V. Drury
572
Wyer v. Dorchester, &c
Bank
81 a
V. Fitz
6
Wylde's case
288
V. Hickok
260 a
Wyndham v. Chetwynd
419
V. Jackson
529, 531
Wynne v. Tyrwhitt
150
154
, 570
V. he Baron
532
V. Mackinson
445
V. Mann
461
Y.
V. Neale
317
u. Pringle
76
Yabsley v. Doble
180
ti. Watkinson
' 547
Yandes v. Lefavour
112
V. Whiting
305
Yarborough v. Moss
201
Woodbeck v. Keller
255, 237
Yardley v. Arnold
421
Woodbridge v. Spooner
281
Yarley v. Turnock
72
Woodcock's case
158
Yates's case
257
Woodcraft v. Kinaston
602
Yates V. Pym
292
Woodford v. Ashley
70
Yeates v. Pim
294
Woodman v. Coolbroth
571
Yeatman, Hx parte
238
V. Lane
301
V. Dempsey
319
Woodruff w. Westcott
190, 353
V. Hart
51a
V. Taylor
546 c
Ycaton v. Fry
5
414
V. Woodruff
527 a
York V. Blott
399
Woods V. Banks
113, 608
V. Gribble
402
V. Sawin
287
V. Pease
74
V. Woods
41, 240 a
York, &c. E.R: Co. v. Winans
6
Woodsides v. The State
166
Yoter V. Sanno
251
Woodstock (Bank of ) »
Clark 108
Young V. Bairner
76
,385
Woodward v. Cotton
481
■ V. Black
532
V. Larking
211
V. Chandler*
506
V. Newhall
197 a, 356
«. Dearborn
165
V. Picket
268
V. Honner
580
Woolam i>. Hearn
276
V. Richards
341
Woolway v. Rowe
190, 191
V. Smith
180
Wooster v. Butler
145, 287
V. The Bank of Alexan-
V. Lyons
96
dria
480,
489
490
Worcester Co. Bank v. Dorches-
V. Wright
27
186
ter, &c. Bank
81 a
Youqua v. Nixon
304
Worrall v. Jones 330,
353, 354, 356
Yrissarri v. Clement
4
^V'ortllingtOIl v. Hyler
300, 301
Wright V. Barnard
5
V. Beckett
444, 467
Z.
V. Caldwell
348
V. Court
111
Zollicoffer v. Turney
452
V. Crookes
281, 304
Zouch V. Clay
567
568
V. Delafield
488 a
This case is reported in 13 B. Men. 262, and not as cited in note to section 506.
PART I.
NATUEE AND PKII^^CIPLES
BVIDEl^^CE.
TREATISE
THE LAW OF EYIDENCE.
PAET I.
OF THE NATUEE AM) PEmCEPLES OF EVIDENCE.
CHAPTER L
PEELIMINAET OBSKRVATIONS.
[ * § 1. Definitions : evidence ; proof; demonstration ; moral evidence.
2. Competent evidence ; satisfactory evidence ; cumulative evidence.
3. Nature and object of evidence ; means and instruments of proof.]
§ 1, The word Evidence, in legal acceptation, includes all tho
means by which any alleged matter of fact, the truth of which is
submitted to investigation, is established or disproved.^ This
term, and the word proof, are often used indifferently, as synony-
mous with each other ; but the latter is applied by the most accu-
rate logicians, to the effect of evidence, and not to the medium by
which truth is established.^ None but mathematical truth is
susceptible of that high degree of evidence, called demonstration,
which excludes all possibility of error, and which, therefore, may
reasonably be required in support of every mathematical • deduc-
tion. Matters of fact are proved by moral evidence alone ; by which
is meant, not only that kind of evidence which is employed on
subjects connected with moral conduct, but all the evidence which
1 See Wills on Circumstantial Evid. 2 ; ^ Whately's Logic, b. iv. oh. iii. § 1.
1 Stark. Evid. 10; 1 Tliil. Evid. 1.
rsi
4 LAW OF EVIDENCE. [PAET 1,
is not obtained either from intuition, or from demonstration. In
the ordinary affairs of life, we do not require demonstrative
evidence, because it is not consistent with the nature of the sub-
ject, and to insist upon it would be unreasonable and absurd.
The most that can be affirmed of such things is, that there is no
reasonable doubt concerning them.^ The true question, therefore,
in trials of fact, is not whether it is possible that the testimony
may be false, but whether there is sufficient probability of its truth ;
that is, whether the facts are shown by competent and satisfactory
evidence. Things established by competent and satisfactory evi-
dence are said to be proved.
§ 2. By competent evidence is meant that which the very nature
of the thing to be proved requires, as the fit and appropriate proof
in the particular case, such as the production of a writing, where
its contents are the subject of inquiry. By satisfactory evidence,
which is sometimes called sufficient evidence, is intended that amount
of proof, which ordinarily satisfies an unprejudiced mind, beyond
reasonable doubt. The circumstances which will amount to this
degree of proof can never <be previously defined ; the only legal
test of which they are susceptible is their sufficiency to satisfy the
mind and conscience of a common man ; and so to convince him,
that he would venture to act iipon that conviction, in matters of
the highest concern and importance to his own interest.^ Ques-
tions respecting the competency and admissibility of evidence, are
entirely distinct from those which respect its sufficiency or efiect ;
the former being exclusively within the province of the court ; the
flatter belonging exclusively to the jury.^ Cumulative evidence
is evidence of the same kind, to the same point. Tims, if a fact is
attempted to be proved by the verbal admission of the party, evi-
dence of another verbal admission of the same fact is cumulative ;
but evidence of other circumstances, tending to establish the fact,
is not.*
1 See Gambicr's Guide to the Study they also believe them. Their belief is
of Moral EviJence, p. 121. Even of afterwards contirmed by experience; for
matlieniatical trutlis, tliis writer justly whenever there is occasion to apply them,
remarks, that, though capable of demon- they are found to lead to just conclusions,
stration, they are admitted by most men Id. 196.
solely on the moral evidence of general ^ 1 Stark. Evid. 514.
notoriety. Kor most men are neither able " Columbian Ins. Co. v. Lawrence, 2
themselves to understand mathematical Pet. 25, 44 ; Bank United States v. Cor-
demonstrations, nor have they, ordinarily, coran. Id. 121, 133 j Van Ness v. Pacard,
for their truth, tlie testimony of those Id. 137, 149.
who do understand them; but finding * Parker v. Hardy, 24 Pick. 246, 248
tliem generally believed in tlie world
CHAP. I.] PEBLIMINARY OBSEEVATIONS. 5
§ 3. This branch of the law may be considered under three gen-
eral heads, namely: First, The Nature and Principles of Evi-
dence;— Secondly, The Object of Evidence, and the Eules which
govern in the production of testimony ; — And Thirdly, TJie Means
of Proof, or the Instruments, by which facts are established.
This order will be followed in farther treating this subject. But
before we proceed, it will be proper first to consider what things
courts will, of themselves, take notice of, without proof.
LAW OF EVIDENCE. [PABT 1.
CHAPTER II.
OP THINGS JUDICIALLY TAKEN NOTICE OP, WITHOUT PEOOP.
[ * 5 4. Courts take judicial notice of the national seal of other nations.
5. So also of the law of nations, courts of admiralty, notarial seals, the course
of nature, the calendar, &c. &c.
6. Of the territorial divisions of the country, its courts, general laws, oflBcers,
and all things universally known, &c.
6a. The subject further illustrated with reference to more recent cases.]
§ 4. All civilized nations, being alike members of the great
family of sovereignties, may well be supposed to recognize each
other's existence, and general public and external relations. The
usual and appropriate symbols of nationality and sovereignty are
the national flag and seal. Every sovereign, therefore, recognizes,
and, of course, the public tribunals and functionaries of every
nation take notice of the existence and titles of all the other sov-
ereign powers in the civilized world, their respective flags, and
their seals of state. Public acts, decrees, and judgments, exempli-
fied under this seal, are received as true and genuine, it being the
highest evidence of their character.^ If, however, upon a civil war
in any country, one part of the nation shall separate itself from the
other, and establish for itself an independent government, the newly-
formed nation cannot without proof be recognized as such, by the
judicial tribunals of other nations, until it has been acknowledged
by the sovereign power under which those tribimals are consti-
tuted ; 2 the first act of recognition belonging to the executive func-
tion, [ * and courts will take judicial notice, whether or no, such
governments have been so acknowledged] .^ But though the seal of
the now power, prior to such acknowledgment, is not permitted
1 Church V. Hubbart, 2 Craneh, 187, the courts, must be a common-law seal,
238 ; Griswold v. Pitcaim, 2 Conn. 85, that is, an impression upon wax. Coit v.
30; United States v. Johns. 4 Dall. 416; Milliken, 1 Denio, R. 376.
The Sautlssima Trinidad, 7 Wheat. 273, 2 QHy ^f Bgrne v. Bank of England, 9
835; Anon. 9 Mod. 66; Lincoln v. Bat- Ves. 347; United States v. Palmer, «
telle, 6 Wend. 475. It is held in New Wheat. 610, 634.
Fork that such seal, to be recognized in ^ [» Taylor u. Barclay, 2 Sim. 213.1
CHAP. II.] THINGS JUDICIALLY TAKEN NOTICE OP. 7
to prove itself, yet it may be proved as a fact by other competent
testimony.^ And the existence of such unacknowledged government
or State may, in like manner, be proved ; the rule being, that if a
body of persons assemble together to protect themselves, and sup-
port their own independence, make laws, and have courts of justice
this is evidence of their being a state.^
§ 6. In like manner, the Law of Nations, and the general cus
toms and usages of merchants, as well as the public statutes an§
general laws and customs of their own country, as well ecclesiasti
cal as civil, are recognized, without proof, by the courts of all civil
ized nations.^ The seal of a notary-public is also judicially taken
notice of by the courts, he being an officer recognized by the whole
commercial world.* Foreign Admiralty and Maritime Courts, too,
being the courts of the civilized world, and of coordinate jurisdic-
tion, are judicially recognized everywhere ; and their seals need
not be proved.^ Neither is it necessary to prove things which
must have happened according to the ordinary course of nature ; ^
nor to prove the course of time, or of the heavenly bodies ; nor
the ordinary public fasts and festivals ; nor the coincidence of days
of the week with days of the month ; ' nor the meaning of words
1 trnited States v. Palmer, 3 Wlieat. of land is not, as a general rule, such a
610, 634 ; The Estrella, 4 Wheat. 298. public statute as the courts are bound to
What is sufficient evidence to authenti- take notice of and expound, without re-
cate, in the courts of this country, the quiring its production. Allegheny v. Nel-
Bentence or decree of the court of a for- son, 25Penn. State R. 332.1
eign government, after the destruction of * Anon. 12 Mod. 345 ; Wright v. Bar-
such government, and while the country is nard, 2 Esp. 700 ; Yeaton v. Fry, 6 Cranch,
possessed by the conqueror, remains un- 535 ; Brown v. Philadelphia Bank, 6 S. &
decided. Hatfield v. Jameson, 2 Munf. R. 484; Chanoine v. Fowler, 3 Wend.
63, 70, 71. 173, 178; Bayley on Bills, 515 (2d Am,
2 Yrissarri v. Clement, 2 C. & P. 223, ed. by Phillips & Sewall) ; Hutcheon v.
per Best, C. J. And see 1 Kent, Comm. Mannington, 6 Ves. 823 ; Porter v. Jud-
189 ; Grotius, De Jur. Bel. b. 3, c. 3, § 1. son, 1 Gray, 175.
8 Ereskine v. Murray, 2 Ld. Rayra. * Croudson «: Leonard, 4 Cranch, 435 ;
1542; Heineccius ad Pand. 1. 22, tit. 3, Rose v. Ilimely, Id. 292; Cliurch v. Hub-
sec. 119 ; 1 Bl. Comm. 75, 76, 85 ; Edie v. hart, 2 Cranch, 187 ; Thompson v. Stew-
East India Co. 2 Burr. 1226, 1228; Chand- art, 3 Conn. 171, 181 ; Green v. Waller, 2
Icr V. Grieves, 2 H. Bl. 606, n.; Rex v. Ld. Raym. 891, 893; Anon. 9 Mod. 66;
Sutton, 4 M. & S. 542; 6 Vin. Abr. tit. Story on the Conflict of Laws, § 643;
Court, D ; 1 Rol. Abr. 526, D. Judges Hughes v. Cornelius, as stated by Lord
will also take notice of the usual practice Holt, in 2 Ld. Raym. 893. And see T.
and course of conveyancing. 8 Sugd. Raym. 473 ; 2 Show. 232, s. c.
Vend. & Pur. 28; Willoughby v. Wil- '^ Rex v. Luffe, 8 East, 202; Fay v.
loughby, 1 T. R. 772, per Ld. Hardwicke ; Prentice, 9 Jur. 876.
Doe V. Hilder, 2 B. & Aid. 793 ; Rowe v. ' 6 Vift. Abr. 491, pi. 6, 7, 8 ; Hoyle v.
Grenfel, iij. & Mo. 398, per Abbott, C. J. Comwallis, 1 Stra. 387 ; Page v. Faucet,
So, of the general lien of bankers on «e- Cro. El. 227 ; Harvey v. Broad, 2 Salk
curities of their customers, deposited with 626 ; Hanson v. Shackelton, 4 Dowl. 48 ;
them. Brandao v. Barnett, 3 M. G. & Sc. Dawkins v. Smithwick, 4 Flor. R. 158 ,
519. [See also infra, § 489, 490. A spe- [Sasscer v. Farmers' Bank, 4 Md. 409 ; |
olal act for the survey of a particular tract f * Sprowl v. Lawrence, 33 Ala. 674.1
« LAW OP ETIDENCB. [PABT I.
In the veraacular language ; ^ nor the legal weights and measures ; ^
nor any matters of public history, affecting the whole people;'
nor public matters, aflFecting the government of the country.*
[ * Nor will it be required to give evidence of the course of the
seasons, and the date of the ordinary maturity of particular crops.^
But the courts cannot take judicial notice of the meaning of catch-
words, such as " the cost book principle ; " ^ " Black Republicans "
or " supporters of the Helper book ; " ' nor of the import of abbre-
viations, as " St. Louis, Mo. ;" and others more difficult of interpre-
tation.^ And it was held, in a recent case before the New York
Court of Appeals,^ that in a trial by jury, it was proper to give
evidence of historical facts.]
§ 6. Courts also take notice of the territorial extent of the
jurisdiction and sovereignty, exercised de facto by their own
government ; and of the local divisions of their country, as into
states, provinces, counties, cities, towns, local parishes, or the like,
so far as political government is concerned or affected ; and of the
relative positions of such local divisions ; but not of their precise
boundaries, farther than they may be described in public statutes.^**
I"* But not whether the jurisdiction defaeto be rightfully exorcised.^]
1 Clementi v. Golding, 2 Campb. 25 ; tice that the knowledge of that fable of
Commonwealth v. Itneeland, 20 Pick. Phaedrus generally prevailed in society.
239. [Courts will take judicial notice of Hoare v. Silverlock, 12 Jur. 695; 12 Ad.
the customary abbreviations of Christian & El. 624, N. 3.
names. Stephen v. State, 11 Geo. 225; ^ [* Floyd u. Ricks, 14 Ark. 286.
Weaver v. McElhenon, 13 Miss. 89.] ^ Bodmin Mines Co. in re, 23 Beav.
2 Hoekin v. Cooke, 4 T. R. 314. The 370.
current coins of the country, whether cs- ' Baltimore v. The State, 15 Md. Rep.
tabUshed by statute or existing imme- 376.
morially, will be judicially recognized. ^ Ellis v. Park, 8 Texas, 205.
pDailyw. State, 10 Ind. 536.] The courts » MclOnnon v. BUss, 21 N. Y. App.
will also take notice of the character of 206.]
the existing circulating medium, and of the i^ Deybel's case, 4 B. & Aid. 242; 2
popular language in reference to it ; Lamp- Inst. 657; Eazakerley v. Wiltshire, 1
ton V. Haggard, 3 Monr. 149 ; Jones v. Stra. 469 ; Humphreys v. Budd, 9 Dowl.
Overstreet, 4 Monr. 547 ; [United States 1000; Ross v. Reddick, 1 Scam. 73;
V. Bums, 6 McLean, 23 ; United States v. Goodwin v. Appleton, 9 Shepl. 453 ; Van-
King, lb. 208;] but not of the current derwerker v. The People, 6 Wend. 530;
value of the notes of a bank at any par- [* State v. Powers, 25 Conn. 48 ;] jHara v.
tieular time. Feemster v. Ringo, 5 Monr. Ham, 89 Maine, 263 ; lb. 291 ; Wright v.
836. Phillips, 2 Greene (Iowa), 191 ; Robertson
» Bank of Augusta v. Earle, 13 Pet. v. Teal, 9 Texas, 344; Wheeler n. Moody,
519, 590; 1 Stark. Ev. 211 (6th Am. ed.). lb. 372; Ross v. Austill, 2 Cal. 183; Kid-
[See also Douglass v. Branch Bank, 19 der v. Blaisdell, 45 Maine, 461 ; Winnipis-
Ala. 659.1 • eogee Lake Co. v. Young, 40 N. H. 420.]
* Taylor v. Barclay, 2 Sim. 221. But courts do not take notice that particu-
Where a libel was charged, in stating larplaces are or not in particular counties.
cacy of her claims, "had realized the fa- [*But see Cooke v Wilson, 1 C. B. n. s,.
ble of the Frozen Snake," it was held 153.1
tliat the court might judicially take no- ii f « State v. Duuwell, 3 R. I. 127.]
CHAP. II.] THINGS JUDICIALLY TAKEN NOTICE OP.
Tlicy will also judicially recognize the political constitution or
frame of their own government; its essential political agents
or public officers, sharing in its regular administration ; and its
essential and regular political operations, powers, and action.
Thus, notice is taken, by all tribunals, of the accession of the
Chief Executive of the nation or state, under whose authority
they act ; his powers and privileges ; ^ the genuineness of his sig-
nature,^ the lieads of departments, and principal officers of state,
and the public seals ; ^ the election or resignation of a senator of
the United States ; the appointment of a cabinet or foreign
minister;* marshals and sheriffs,^ and the genuineness of their
signatures,® but not their deputies ; courts of general jurisdiction,
their judges,'' their seals, their rules and maxims in the adminis-
tration of justice, and coursq of proceeding ; ^ also, of public
proclamations of war and peace,^ and of days of special public
fasts and thanksgivings ; stated days of general political elections ;
the sittings of the legislature, and its established and usual course
1 Elderton's case, 2 Ld. Raym. 980,
per Holt, C. J. ; [ * Hizer v. State, 12 Ind.
330 ; Lindsoy v. Attorney -general, 33 Mias.
508; State v. Williams, 5 Wis. 308.]
2 Jones V. Gale's Ex'r, 4 Martin, 685.
And SCO Rex v. Miller, 2 W. Bl. 797 ; 1
Leaeh, Cr. C.-is. 74; Rex v. Gully, 1
Leach, Cr. Gas. 98.
* Rex V. Jones, 2 Campb. 121 ; Bennett
V. The State of Tennessee, Mart. & Yerg.
133 ; Ld. Melville's case, 29 How. St. Tr.
707. And see as to seals, infra, § 503, and
cases there cited. [The courts of the
United States will take notice of the per-
sons who from time to time preside over
the patent-office, whether permiineutly or
transiently. York, &c., Raihroad Co. v. Wi-
nans, 17 How. U. S. 30.]
* Walden v. Canfield, 2 Rob. Louis. R.
466.
s Holman v. Burrow, 2 Ld. Raym.
794; [Ingraham v. State, 27 Ala. 17 ; Ma-
jor V. State, 2 Sneed (Tenn.), 11. The
Court of Common Pleas will take judicial
notice that the Queen's prison is in Eng-
land. Wickens v. Goatley, 8 Eng. Law &
Eq. 420, 422.]
" Alcock 17. Whatmore, 8 Dowl. P. C.
615.
' AVatson v. Hay, 3 Kerr, 559. [The
Supreme Court (of Ohio) will take judi-
cial notice of the time fixed for the com-
mencement of its sessions, but not of the
duration of any particular session. Gilli-
land V. Sellers, 2 Ohio (n. s.), 223. See
also Lindsay v. Williams, 17 Ala. 229.]
' Tregany v. Fletcher, 1 Ld. Raym.
154; Lane's case, 2 Co. 16; 3 Com. Dig.
336, Courts, Q. ; Newell v. Newton, 10
Pick. 470 ; ElUott v. Evans, 3 B. & P.' 183,
184, per Ld. Alvanley, C. J. ; Maberley v.
Robins, 5 Taunt. 625 ; Tooker v. Duke of
Beaufort, Sayer, 296 ; [ * Tucker v. State,
11 Md. 322.1 Whether Superior Courts are
bound to take notice who are Justices of
the inferior tribunals, is not clearly settled.
In Skipp V. Hook, 2 Stra. 1080, it was ob-
jected that they were not ; but whether
the case was decided on tliat, or on the
other exception taken, does not appear.
Andrews, 74, reports the same rase, "ex
relatione alterius," and equally doubtful;
And see Van Sandau v. Turner, 6 Ad. &
El. 773, 786, per Ld. Denman. The
weight of American authorities seems
-rather on the affirmative side of the ques-
tion. Hawks V. Kennebec, 7 Mass. 461 ;
Ripley v. Warren, 2 Pick. 592 ; Despau v.
Swindler, 3 Martin, n. s. 705 ; Eollain v.
Lefevre, 3 Rob. Louis. R. 13. In Louis-
iana the courts take notice of the signa-
tures of executive and judicial officers to
all official acts. Jones v. Gale's Ex'r, 4
Martin, 635; Wood v. Eitz, 10 Martin,
196. [Courts will also take notice of the
times andiplaces of holding their sessions.
Kidder ».' Blaisdell, 45 Maine, 461.]
" Dolder v. Ld. Huntingfield, 11 Ves.
292; Rex v. De Berenger, 3 M & S. 67.
Taylor i: Barclay, 2 Sim. 213
10 LAW OF EVIDENCE. [PABT I.
of proceeding ; the privileges of its members, but not the transac-
tions on its journals.! The courts of the United States, moreover,
take judicial notice of the ports and waters of the United States
in which the tide ebbs and flows ; of the boundaries of the several
states and judicial districts ; ^ and, in an especial manner, of all
the laws and jurisprudence of the several states in which they
exercise an original or an appellate jurisdiction. The judges of
the Supreme Court of the United States are, on this account, bound
to take judicial notice of the laws and jurisprudence of all the
states and territories.^ A Court of Errors will also take notice of
the nature and extent of the jurisdiction of the inferior court
whose judgment it revises.* In fine, courts will generally take
notice of whatever ought to be generally known within the limits
of their jurisdiction. In all these, and the like cases, where the
memory of the judge is at fault, he resorts to such documents of
reference as may be at hand, and he may deem worthy of confi-
dence.^
[ * § 6a. There is not an entire consistency, in principle, in the
decisions in the several states, upon this question. Thus it has
been held courts will take notice of the usual route and course of
travel between different points within the state, in order to deter-
mine the reasonableness of notice to take depositions;" but that
they will not take notice of the quantity of land contained within
given courses and distances.'^ But in fact the latter is a matter of
mere computation, and no more requires proof than any other
1 Lake v. King, 1 Saund. 131 ; Birt v. 5 McLean, 23 ; United States v. King, lb.
Eotliwell, 1 Ld. Eaym. 210, 343 ; Rex v. 208. Tliey also take judicial notice of
Wilde, 1 Lev. 296; 1 Doug. 97, n. 41; treaties between the United States and
Eex V. Arundel, Hob. 109, 110, 111 ; Rex foreign governments ; and of the public
V. KnoUys, 1 Ld. Raym. 10, 15; Stock- acts and proclamations of those govern-
dale V. Hansard, 7 C. & P. 731 ; 9 Ad. & ments and their publicly authorized agents
El. 1; 11 Ad. & El. 253; Sheriff of Mid- in carrying those treaties into effect,
dlesex's case, Id. 273 ; Cassidy.u. Stewart, United States v. Reynes, 9 How. U. S.
2 M. & G. 437. 127 ; and of the Spanish Laws which pre-
^ Story on Eq. Plead., § 24, cites United vailed in Louisiana, before its cession to
States V. La Vengeance, 3 Dall. 297 ; The the United States. United States v. Tur
ApoUon, 9 Wheat. 874 ; The Thomas Jef- ner, 11 lb. 663.]
ferson, 10 Wheat. 428 ; Peyroux v. How- ^ ibid. ; Owings v. Hull, 9 Pet. 607,
ard, 7 Pet. 342. They will also recognize 624, 625 ; Jasper u. Porter, 2 McLean, 679;
the usual course of the great inland com- [Miller v. McQuerry, 5 McLean, 469.]
merce, by which the products of agricul- * Chitty ti. Dendy, 3 Ad. & El. 319.
ture in the valley of the Mississippi find l"See March v. Commonwealth, 12 B. Mon
their way to market. Gibson v. Stevens, 25.]
8 How. S. C. E. 884; [Lathrop v. Stew- « Gresley on Evid. 295.
art, 5 McLean, 167. They will take notice ^ [* Hipes v. Cochran, IS Ind. 175.
without proof of the legal coins of the ' Tison v. Smith, 8 Texas, 147.]
United States. United States v. Burns
CHAP. II.] THINGS JUDICIALLY TAKEN NOTICE OP. 11
proposition based upon the fundamental rules of arithmetic ; and
the former is a thing liable to vary with every change of the time-
tables, upon a railway. It is most unquestionable, that courts
will take notice of what is within the common experience or
knowledge of all men ; as the length of time ordinarily required
to cross the Atlantic by steam,i or the nature of lotteries and the
manner in which they are conducted.^ And it is no objection that
the court may require instruction upon the point, themselves.
They will make inquiries, at the proper place for acquiring infor-
mation. For this purpose in one case ^ the Vice-Chancellor made
inquiries at the Foreign Office, whether the Federal Republic of
Central America had been recognized by the British Government.
And Lord Hardwicke inquired of an eminent conveyancer as to
the existence of a rule of practice in that department of the
profession.* And the United States Supreme Court resorted to
the archives and public record-books of the United States to inform
themselves of particular facts material to be known to the proper
understanding of a cause before it.] ''
1 [ * Openheim v. Leo "Wolf. 3 Sandf. * WiUoughby v. Willoughby, 1 T. R.
Ch. 571. 772.
" BouUemot v. State, 28 Ala. 83. » Romero v. The United States, 1 Wal-
« Taylor v. Barclay, 2 Sim. 221. lace, U. S. 721 ; Nelson, J., in United
States V. Tescbmaker, 22 How. U. S. 406.]
12 LAW OP EVIDENCE. [PAET I.
CHAPTER III.
OF THE GROUNDS OP BELIEF.
I • § 7. Our experience forms the basis of our belief in human testimony.
8. But we also derive great aid from the experience of others.
9. Tlie belief in Iiuman testimony, a fundamental principle of our moral nature.
10. This belief is strengthened by many corroborative circumstances.
11. The probability of an hypothesis is determined by experience and reasoning
combined.
12. Extensive induction tests the probability of a narrative of events, with sxir-
prising certainty.
13. Distinction between direct and circumstantial evidence.
13a. Consideration of the degrees of certainty produced by circumstantial evidence.]
§ 7. We proceed now to a brief consideration of tlie Creneral
Nature and Principles of Uvidence. No inquiry is here proposed
into tlio origin of human knowledge ; it being assumed, on the
authority of approved writers, that all that men know is referable,
in a philosophical view, to perception and reflection. But, in fact,
the knowledge acquired by an individual, through his own per-
ception and reflection, is but a small part of what ho possesses ;
much of what we are content to regard and act upon as knowledge
having been acquired through the perception of others.^ It is not
easy to conceive that the Supreme Being, whoso wisdom is so con-
spicuous in all his works, constituted man to believe only upon
his own personal experience ; since in that case the world could
neither be governed nor improved ; and society must remain in the
state in which it was left by the first generation of men. On the
contrary, during tho period of childhood, we believe implicitly
almost all that is told us ; and thus are furnished with information
which we could not otherwise obtain, but which is necessary, at the
time, for our present protection, or as the means of future improve-
ment. This disposition to believe may be termed instinctive. At
an early period, however, we begin to find that, of the things told
to us, some are not true, and thus our implicit reliance on the
1 Ahercrombie on the Intellectual Powers, Part II. sec. 1, pp. 45, 46.
CHAP. III.]
GROUNDS OF BELIEF.
18
testimony of others is weakened ; first, in regard to particular
tilings in whioh we have been deceived ; then in regard to persons
whose falsehood we have detected ; and, as these instances multiply
upon us, we gradually become more ajid more distrustful of sucli
statements, and learn by experience the necessity of testing them
by certain rules. Thus, as our ability to obtain knowledge l)y
other means increases, our instinctive reliance on testimony dimiii-
islies, by yielding to a more rational belief.^
§ 8. It is true, that in receiving the knowledge of facts from the
testimony of others, we are much influenced by their accordance
1 Gambier's Guide, p. 87 ; McKinnon's
Pliilosophy of Evidence, p. 40. This sub-
ject is treated more largely by Dr. Eeid
in his profound " Inquiry into the Human
Mind," ch. 6, sec. 24, p. 428-434, in tliese
words: — "The wise and beneficent Au-
thor of Nature, who intended that we
should be social creatures, and that we
should receive the greatest and most im-
portant part of our knowledge by the
information of others, hath, for these pur-
poses, implanted in our natures two prin-
ciples that tally with each other. The
first of these principles is a propensity to
speak truth and to use the signs of lan-
guage, so as to convey our real sentiments.
This principle has a powerful operation,
even in the greatest liars ; for where they
lie once they speak truth a hundred times.
Truth is always uppermost, and is the
natural issue of the mind. It requires no
art or training, no inducement or tempta-
tion, but only, that we yield to a natural
impulse. Lying, on the contrary, is doing
violence to our nature ; and is never prac-
tised, even by the worst men, without some
temptation. Speaking truth is like using
our natural food, which we would do from
appetite, although it answered no end ; but
lying is like taking physic, which is nau-
seous to the taste, and which no man takes
but for some end which he cannot other-
wise attain. If it should be objected, that
men may be influenced by moral or politi-
cal considerations to speak truth, and,
therefore, that their doing so is no proof
of such an original principle as we have
mentioned ; I answer, first, that moral or
political considerations can have no influ-
ence until we arrive at years of under-
standing and reflection ; and it is certain,
from experience, that children keep to
truth invariably, before they are capable
of being influenced by such considerations.
Secondly, when we are influenced by mor-
al or political considerations, we must be
conscious of that influence, and capable of
perceiving it upon reflection. Now, when
VOL. I. 2
I reflect upon my actions most attentively,
I am not conscious that, in speaking
truth, I am influenced on ordinary occa-
sions by any motive, moral or political. I
find that truth is always at the door of my
lips, and goes forth spontaneously, if not
held back. It requires neither good nor
bad intention to bring it forth, but only
that I be artless and undesigning. There
may, indeed, be temptations to falsehood,
which would be too strong for the natural
principle of veracity, unaided by principles
of honor or virtue ; but where there is no
such temptotion, we speak truth by in
stinct ; and this instinct is the principle I
have been explaining. By this instinct, a
real connection is formed between our
words and our thoughts, and thereby the
former become fit to be signs of the latter,
which they could not otherwise be. And
although this connection is broken in every
instance of lying and equivocation, yet
tliese instances being comparatively few,
the authority of human testimony is only
weakened by them, but not destroyed.
Another original principle, implanted in
us bj' the Supreme Being, is a disposition
to confide in the veracity of others, and to
believe what they tell us. This is the
counterpart to the former ; and as that
may be called the principle of veracity, we
shall, for want of a more proper name, call
this the principle of credulity. It is un-
limited in children, until they meet with
instances of deceit and falsehood ; and it
retains a very considerable degree of
strength through life. If nature had left
the mind of the speaker in aequilibrio,
without any inclination to the side of truth
more than to that of falsehood, children
would lie as often as they speak truth, un-
til reason was so far ripened, as to suggest
the imprudence of lying, or conscience, as
to suggest its immorality. And if nature
had left the mind of the hearer in a;quili-
brio, witliout any inchnation to the side
of belief more than to that of disbelief, we
should take no man's word, until we had
u
LAW OF EVIDENCK.
[part L
vrivh facts previously known or believed ; and this constitutes "what
is termed their probability. Statements, thus probable, are received
upon evidence much less cogent than we require for the belief of
those which do not accord with our previous knowledge. But
while these statements are more readily received, and justly relied
upon, we should beware of unduly distrusting all others. While
unbounded credulity is the attribute of weak minds, wliich seldom
think or reason at all, — qiu> magis nesciunt ed magis admirantur,
— unlimited scepticism belongs only to those who make their own
knowledge and observation the exclusive standard of probability.
Thus the king of Siam rejected the testimony of the Dutch ambas-
sador, that in his country, water was sometimes congealed into
a solid mass ; for it was utterly contrary to his own experience.
positive evidence that he spoke truth.
His testimony would, in tliis case, have no
more authority than his dreams, which
may be true or false ; but no man is dis- ,
posed to believe them, on this account,
that they were dreamed. It is evident,
that in the matter of testimony, the balance
of human judgment is by nature inclined
to the side of belief; and turns to that side
of itself, when there is nothing put into the
opposite scale. If it was not so, no propo-
sition that is uttered in discourse would be
believed, until it was examined and tried
by reason ; and most men would be unable
to find reasons for believing the thousandth
part of what is told them. Such distrust
and incredulity would deprive us of the
greatest benefits of society, and place us
in a worse condition than that of savages.
Children, on this supposition, would be
absolutely incredulous, and therefore abso-
lutely incapable of instruction ; those who
had little knowledge of human life, and of
the manners and characters of men, would
be in the next degree incredulous ; and
the most credulous men would be those of
greatest experience, and of the deepest
penetration ; because in many cases, they
would be able to find good reasons for be-
lieving testimony, which the weak and the
ignorant could not discover. In a word,
if credulity were the effect of reasoning
and experience, it must grow up and
gather strength in the same proportion as
reason and experience do. But if it is the
gift of nature, it will be strongest in child-
hood, and limited and restrained by expe-
rience ; and the most superficial view of
human life sliows, that the last is really
the case, and not tlie first. It is the inten-
tion of nature, tliat we sliould be carried
in arms before we are able to walk upon
our legs ; and it is likewise the intention
of nature, that our belief should be guided
by the authority and reason of others, be-
fore it can be guided by our own reason.
The weakness of the infant, and the nat-
ural affection of the mother, plainly indi-
cate the former ; and the natural credulity
of youth and authority of age as plainly
indicate the latter. The infant, by proper
nursing and care, acquires strength to walk
without support. Eeason hath likewise
her infancy, when she must be carried
in arms ; then she leans entirely upon au-
thority, by natural instinct, as if she was
conscious of her own weakness ; and
without this support she becomes verti-
ginous. When brought to maturity by
proper culture, she begins to feel her own
strength, and leans less upon the reason of
others ; she learns to suspect testimony in
some cases, and to disbelieve it in others ;
and sets bounds to that authority, to wliich
she was at first entirelj' subject. But still,
to the end of life, she finds a necessity of
borrowing light from testimony, where she
has none within herself, and of leaning in
some degree upon the reason of others,
where she is conscious of her own imbe-
cility. And as, in many instances. Reason,
even in her maturity, borrows aid from
testimony, so in others she mutually gives
aid to it and strengthens its authority.
For, as we find good reason to reject testi-
mony in some cases, so in others we find
good reason to rely upon it with perfect
security, in our most important concerns. '
Tlie character, the number, and the disin-
terestedness of witnesses, the impossibility
of collusion, and the incredibility of their
concurring in their testimony without col-
lusion, may give an irresistible strength to
testimony, compared to which its native
and intrinsic authority is very inconsider-
able."
CHAP, m.j GROUNDS OF BELIEF, 15
Sceptical pliilosophers, inconsistently enough with their own prin-
ciples, yet true to the nature of man, continue to receive a large
portion of their knowledge upon testimony derived, not from their
own experience, but from that of other men ; and this, even when
it is at variance with much of their own personal observation.
Thus, the testimony of the historian is received with confidence, in
regard to the occurrences of ancient times ; that of the naturalist
and the traveller, in regard to the natural history and civil con-
dition of other countries ; and that of the astronomer, respecting
the heavenly bodies ; facts, which, upon the narrow basis of his
own " iirm and unalterable experience," upon which Mr. Hume
so much relies, he would be bound to reject, as wholly unworthy
of belief.
§ 9. The uniform habits, therefore, as well as the necessities of
manldnd, lead us to consider the disposition to believe, upon the
evidence of extraneous testimony, as a fundamental principle of
ur moral nature, constituting the general basis upon wliich all
evidence may be said to rest.^
§ 10. Subordinate to this paramount and original principle, it
may, in the second place, be observed, that evidence rests upon our
faith in human testimony, as sanctioned by experience ; tliat is,
upon the general experienced truth of the statements of men of
integrity, having capacity and opportunity for observation, and
without apparent influence from passion or interest to pervert the
truth. This belief is strengthened by our previous knowledge of
the narrator's reputation for veracity; by the absence of con-
flicting testimony ; and by the presence of that which is corrob-
orating and cumulative.
§ 11. A third basis of evidence is the known and experienced
connection subsisting between collateral facts or circumstances,
satisfactorily proved, and the fact in controversy. Tiiis is merely
the legal application, in other terms, of a process, familiar in
natural philosophy, showing the truth of an hypothesis by its
coincidence with existing phenomena. The connections and co-
ipcidenccs, to which we refer, may bo either physical or moral ;
and the knowledge of them is derived from the known laws of
matter and motion, from animal instincts, and from the physical,
intellectual, and moral constitution and habits of man. Tlieir
* Abcrcrombie on the Intellectual Powers, Part 11. sec. 3, pp. 70-75.
16 LAW OF EVIDENCE. [PAET I.
force depends on their sufficiency to exclude every other hypothesis
but the one under consideration. Thus, the possession of goods
recently stolen, accompanied mth personal proximity in point of
time and place, and inability in the party charged, to show how
he came by them, would seem naturally, though not necessarily,
to exclude every other hypothesis but that of his guUt. But the
possession of the same goods, at a remoter time ,and place, would
warrant no such conclusion, as it would leave room for the hy-
pothesis of tlieir having been lawfully purchased in the course of
trade. Similar to this in principle is the rule of nosdtur a sociis,
according to which the meaning of certain words, in a written
instrument, is ascertained by the context.
§ 12. Some writers have mentioned yet another ground of the
credibility of evidence, namely, the exercise of our reason upon
the effect of coincidences in testimony, which, if collusion be ex-
cluded, cannot be accounted for upon any other hypothesis than
that it is true.i It has been justly remarked, that progress in
knowledge is not confined, in its results, to the mere facts which
we acquire, but it has also an extensive influence in enlarging
the mind for the further reception of truth, and setting it free
from many of those prejudices which influence men whose minds
are limited by a narrow field of observation.^ It is also true, that,
in the actual occurrences of human life, nothing is inconsistent.
Every event which actually transpires has its appropriate relation
and place in the vast complication of circumstances, of which thp
affairs of men consist ; it owes its origin to those which have pre
ceded it ; it is intimately connected with all others which occur
at the same time and place, and often with those of remote regions ;
and, in its turn, it gives birth to a thousand others which succeed.^
In all this, there is perfect harmony ; so that it is hardly possible
to invent a story which, if closely compared with all the actual
contemporaneous occurrences, may not be shown to be false.
Prom these causes, minds, deeply imbued with science, or enlarged
by long and matured experience, and close obsei'vation of the
conduct and affairs of men, may, with a rapidity and certauity
approaching to intuition, perceive the elements of truth or false-
hood in the face itself of the narrative, without any regard to the
narrator. Thus, Archimedes might have believed an account
1 1 Stark. Evid. 471, note. » 1 Stark. Evid. 49G.
^ Abercrombie on the Intellectual Powers, Part II. sec. 3, p. 71.
CHAP, in,] GEOUNDS OP BELIEF. 17
of the invention and wonderful powers of the steam-engine, which
his unlearned countrymen would have rejected as incredible ; and
an experienced judge may instantly discover the falsehood of
a witness, whose story an inexperienced jury might be inclined to
believe. But though the mind, in these cases, seems to have
acquired a new power, it is properly to be referred only to experi-
ence and observation.
§ 13. In trials of fact, it will generally be found that the factum
probandum is either directly attested by those who speak from their
own actual and personal knowledge of its existence, or it is to be
inferred from other facts, satisfactorily proved. In the former
case, the truth rests upon the second ground before mentioned,
namely, our faith in human veracity, sanctioned by experience.
In the latter case, it rests on the same ground, with the addition
of the experienced connection between the collateral facts thus
proved and the fact which is in controversy ; constituting the third
basis of evidence before stated. The facts proved are, in both
cases, directly attested. In the former case, the proof applies
immediately to the factum probandum, without any intervening
process, and it is therefore called direct or positive testimony.
In the latter case, as the proof applies immediately to collateral
facts, supposed to have a connection, near or remote, with the
fact in controversy, it is termed circumstantial; and sometimes
but not with entire accuracy, presumptive. Thiis, if a witness
testifies that he saw A inflict a mortal wound on B, of which he
instantly died ; this is a case of direct evidence ; and, giving to the
witness the credit to which men are generally entitled, the crime
is satisfactorily proved. If a witness testifies that a deceased per-
son was shot with a pistol, and the wadding is found to be part of
a letter, addressed to the prisoner, the residue of which is discov-
ered in his pocket ; here the facts themselves are directly attested ;
but the evidence they afford is termed circumstantial ; and from
these facts, if unexplained by the prisoner, the jury may, or may
not, deduce, or infer, or presume his guilt, according as they are
satisfied, or not, of the natural connection between similar facts,
and the guilt of the person thus connected with them. In both
cases, the veracity of the witness is presumed, in the absence of
proof to the contrary ; but in the latter case there is an additional
presumption or inference, founded on the known usual connection
between the facts proved, . and the guilt of the party implicated.
2*
18 LAW OP EVIDENCE. [PABT I.
This operation of the mind, which is more complex and difficult
in the latter case, has caused the evidence afforded by circum-
stances to be termed presumptive evidence ; though in truth, the
operation is similar in both cases.
§ 13a. Circumstantial evidence is of two kinds, namely, cer-
tain, or that from which the conclusion in question necessarily
follows ; and uncertain, or that from which the conclusion does
not necessarily follow, but is probable only, and is obtained by
process of reasoning. Thus, if the body of a person of mature age
is found dead, with a recent mortal wound, and the mark of
a bloody left hand is upon the left arm, it may well be conclude
that the person once lived, and that another person was present
at or since the time when the wound was inflicted. So far the
conclusion is certain ; and the jury would be bound by their oaths
to find accordingly. But whether the death was caused by suicide
or by murder, and whether the mark of the bloody hand was that
of the assassin, or of a friend who attempted, though too late, to
afford relief, or to prevent the crime, is a conclusion which does
not necessarily follow from the facts proved, but is obtained from
these and other circumstances, by probable deduction. The con-
clusion, in the latter case, may be more or less satisfactory or
stringent, according to the circumstances. In civil cases, where
the mischief of an erroneous conclusion is not deemed remediless,
it is not necessary that the minds of the jurors be freed from all
doubt ; it is their duty to decide in favor of the party on whose
side the weight of evidence preponderates, and according to the
reasonable probability of truth. But in criminal cases, because
of the more serious and irreparable nature of the consequences of
a wrong decision, the jurors are required to be satisfied, beyond
any reasonable doubt, of the guilt of the accused, or it is their
duty to acquit him ; the charge not being proved by that higher
degree of evidence which the law demands. In civil cases, it is
sufficient if the evidence, on the whole, agrees with and supports
the hypothesis which it is adduced to prove ; but in crimuial
cases it must exclude every other hypothesis but that of the guilt
of the party. In both cases, a verdict may weU be founded on
circumstances alone; and these often lead to a conclusion far
more satisfactory than direct evidence can produce.^
1 See Bodine's case, in the New Tort the nature and value of this kind oi evi-
Legal Observer, vol. 4, pp. 89, 95, where dence are fully discussed See infra, § 44
CHAP. III.J
GROUNDS OP BELIEF.
19
to 48. And see Commonwealth «. "Web-
ster, 5 Cush. 296, 310-319; [People v.
Videto, 1 Parker, C. R. 603. The court
cannot be required to instruct the jury-
that if the proof rests upon circumstantial
evidence, then the jury must be satisfied
that the government has proved such a
coincidence of circumstances as excludes
every liypothesis except the guilt of the
prisoner ; and unless they are satisfied that
the proof does exclude every other hypoth-
esis, then they ought not to convict the
prisoner. " The true rule is, that the cir-
cumstances must be such as to produce a
moral certainty of guilt, and to exclude
any other reasonable hypothesis." Com-
monwealth V. Goodwin, 14 Gray, 55.J
20 LAW OP EVIDBNCli. [PAKT I.
CHAPTER IV.
OP PEBSUMPTIVE EVIDENCE.
1*1 14. i'resumptions of law, and of fact; conclusive, or disputable.
15. Conclusire presumptions require no support, and admit no contradiction.
16. These are defined by statutes, as those of limitation.
17. Presumptions founded on prescription ; same term as statutes of limitation ip
analogous cases.
18. Men presumed to intend the natural consequences of their conduct.
19. Eecords presumed correct : specialties upon consideration.
20. The presumption, omnia rite acta, either from lapse of time, or from tlie fact
of being done.
20a. In the latter case, the force of the presumption will vary with tlie circum-
stances.
21. So ancient deeds and wills are presumed genuine after the lapse of thirty years.
22. Estoppels are of the class of conclusive presumptions.
23. The recitals in deeds conclusive against parties and privies.
24. The grantor in a deed estopped to deny that he had good title, and from
claiming title adverse to his covenants.
26. The tenant cannot deny the title of his landlord
26. Recitals in deed not conclusive except of facts directly stated.
27. Admissions, solemn and unsolemn, conclusive.
28. Conclusive presumptions apply to infants and married women, as to capacity
and consent.
29. In some countries conclusive presumptions exist, as to survivorsliip, but not
common law. '
30. It is there regarded as a question of fact for the jury.
31. Conclusive presumptions applied by the law of nations.
32. These presumptions founded more upon policy than probability.
33. Disputable presumptions good until disproved.
■'54. These depend upon common experience, and are referable to the jury, where
any evidence is given.
35. Presumption of innocence allowed to overcome other presumptions.
36. But in the publication of libel the presumption of innocence yields -to that of
^ malice.
37. The destruction of documentary evidence raises a presumption of guilt
The fabrication of evidence has a tendency in the same direction.
38. Presumptions founded on the course of trade and business.
88a. Presumptions of the due execution of wills and deeds.
39. Presumptions of payment of bonds and other instruments from the lapse ot
twenty years.
40. Presumptions from the due cotirse of business in public and private adminis
tration of duty.
41. Presumptions in regard to the continuance of life.
CHAP. IV.] OP PRESUMPTIVE EVIDENCE. 21
§ 42. Presumptions that condition and cliaracter continue unless the contrary be
shown.
43. Presumptions of the adoption of foreign laws, from the comity of nations.
44. Presumptions of fact defined.
45. Presumptions from experience against the testimony of accomplices, the verbal
admissions of a party, &c. &e.
46. Presumptions of grants and conveyances.
47. Claims long acquiesced in presumed to be founded in right.
48. The subject embraces all grounds of inferring one fact from the existence of
others, whether founded upon a mechanical and physical connection, or upon
mere probability, depending upon moral evidence.]
§ 14. The general head of Pkesumptivb Evidence is usually-
divided into two branches, namely, presumptions of law and pre-
stmiptions of fact. Peesumptions of Law consist of those rules,
which, in certain cases, either forbid or dispense with any ulterior
inquiry. They are founded, either upon the first principles of
justice ; or the laws of nature ; or the experienced course of human
conduct and affairs, and the connection usually found to exist
between certain things. The general doctrines of presumptive
evidence are not therefore peculiar to municipal law, but are shared
by it in common with other departments of science. Thus, the
presumption of a malicious intent to kill, from the deliberate use
of a deadly weapon, and the presumption of aquatic habits in an
animal found with webbed feet, belong to the same philosophy,
differing only in the instance, and not in the principle, of its
application. The one fact being proved or ascertained, the other,
its uniform concomitant, is universally and safely presumed. It is
this uniformly experienced connection, which leads to its recogni-
tion by the law without other proof; the presumption, however,
having more or less force, in proportion to the imiversality of the
experience. And this has led to the distribution of presumptions
of law into two classes, namely, conclusive and disputable.
§ 15. Conclusive, or, as they are elsewhere termed, imperative, or
absolute presumptions of law, are rules determining the quantity
of evidence requisite for the support of any particular averment,
which is not permitted to be overcome by any proof that the fact
is otherwise. They consist chiefly of those cases in which the
long-experienced connection, before alluded to, has been found so
general and uniform as to render it expedient for the common
good, that this connection should be taken to be inseparable and
universal. They have been adopted by common consent, from
motives of public policy, for the sake of greater certainty, and the
22 LAW OP ETIDENCB. [PABl I.
promotion of peace and quiet in the community ; and therefore it
is, that all corroborating evidence is dispensed with, and all oppos-
ing evidence is forbidden.^
§ 16. Sometimes this common consent is expressly declared,
through the medium of the legislature, in statutes. Thus, by the
statutes of limitation, where a debt has been created by simple
contract, and has not been distinctly' recognized, within six years,
as a subsisting obligation, no action can* be maintained to recover
it ; that is, it is conclusively presumed to have been paid. A tres-
pass, after the lapse of the same period, is, in like manner,
conclusively presumed to have been satisfied. So the possession
of land, for the length of time mentioned in the statutes of limita-
tion, under a claim of absolute title and ownership, constitutes
against all persons but the sovereign, a conclusive presumption of
a valid grant.^
§ 17. In other cases, the common consent, by which this class
of legal presumptions is established, is declared through the medium
of the judicial tribunals, it being the common law of the laud ; both
being alike respected, as authoritative declarations of an imperative
rule of law, against the operation of which no averment or evidence
is received. Thus, the uninterrupted enjoyment of an incorporeal
hereditament for a period beyond the memory of man, is held to
furnish a conclusive presumption of a prior grant of that which
has been so enjoyed. This is termed a title by prescription.^ If
1 The presumption of the Eoman Law ^ xhis period has been limited different-
is defined to be, — " Conjectura, ducta ab ly, at different times ; but, for the last fifty
60, quod ut plurimum fit. Ea conjectura years, it has been shortened at succeeding
vel a lege inducitur, vel a judice. Quse ab revisions of the law, both in England and
Ipsa lege inducitur, vel ita oomparata, ut the United States. By Stat. 3 &4 Wm. IV.
probationem contrarii baud admittat; vel c. 27, all real actions are barred, after twen-
ut eadeni possit elidi. Prim-em doctores ty years from the time when the right of
prcesumptionem juris et de jure, posterio- action accrued. And this period is adopted
remjprcBmmptionem JnKis, adpellant. Quae in most of the United States, though in
a Judice indicitur conjectura, prcesumptio some of the states it is reduced to seven
HOMifTis vocari solet; et semper admittit years, while in others it is prolonged to
probationem contrarii, quamvis, si aUcujus fifty. See 3 Cruise's Dig. tit. 31, ch.
momenti sit, proband! onere relevet." 2, the synopsis of Limitions at the end
Hein. ad Pand. Pars iv. § 124. Of the of the chapter (Greenleafs ed.). See also,
former, answering to our conclusive pre- 4 Kent, Comm. 188, note (a). The same
sumption, Mascardus observes,— "Super period in regard to the title to real prop-
hao praesumptione lex firmum sanelt jus, erty, or, as some construe it, only to the
et eam pro vei-itate, habet." Be Probationi- profits of the land, is adopted in the Hindu
bus, vol. 1, Qusest. x. 48. An exception Law. See Macnaghten's Elements of
to the general conclusiveness of this class Hindu Law, vol. 1, p. 201.
of presumptions is allowed in the case of « 3 Cruise's Dig. 430, 431 (Greenleafs
admissions in fudicio, which wiU be here- ed.). " Prsescriptio est titilus, ex usu et
after mentioned. See infra, §§ 169, 186, tempore substantiam capiens, ab authori
206,206. tatelegis." Co. Litt. 113, a. "What length
CHAP. IV.J OF PliESUMPTIVE EVIDENCE. 23
this enjoyment has been not only uninterrupted, but exclusive and
adverse in its character, for the period of twenty years, this also
has been held, at common law, as a conclusive presumption of
title.^ There is no difference, in principle, whether the subject be
a corporeal or an incorporeal hereditament ; a grant of land may
as well be presumed as a grant of a fishery, or a common, or a
way .2 But, in regard to the effect of possession alone for a period
of time, unaccompanied by other evidence, as affording a presump-
tion of title, a difference is introduced, by reason of the statute of
limitations, between corporeal subjects, such as lands and tene-
ments, and things incorporeal ; and it has been held, that a grant
of lands, conferring an entire title, cannot be presumed from mere
possession alone, for any length of time short of that prescribed
by the statute of limitations. The reason is, that, with respect to
corporeal hereditaments, the statute has made all the provisions
which the law deems necessary for quieting possessions ; and has
thereby taken these cases out of the operation of the common law.
The possession of lands, however, for a shorter period, when
coupled with other circumstances, indicative of ownership, may
justify a jury in finding a grant ; but such cases do not fall within
this class of presumptions.^
of time constitutes this period of legal uninterrupted possession ; and this, in the
memory has been much discussed among case of immovable or real property, was
lawyers. In this country, the courts are limited, inter prmsentes, to ten years, and
inclined to adopt the periods mentioned in inter absentes, to twenty years. The stu-
the statutes of hmitation, in all cases anal- dent will find this doctrine fully discussed
ogous in principle. Coolidge v. Learned, in Mackeldey's Compendium of Modern
8 Hck. 504 ; Melvin v. Whiting, 10 Pick. Ciril Law, vol. 1, p. 200-205, 290, et seq.
295; Ricard v. Williams, 7 Wheat. 110. (Amer. ed.), with the learned notes of Dr.
In England, it is 'settled by Stat. 2 & 3 Kaufman. See also. Novel. 119, c. 7, 8.
Wm. IV. c. 71, by which the period of legal [See also, 2 Greenl. Ev. (7th ed.), § 537-
memory has been limited as follows : in 546, tit. Peesceiption.]
cases of rights of common or other benefits ^ Tyler v. Wilkinson, 4 Mason, 897,
arising out of lands, except tithes, rents, 402; Ingrahamu. Hutchinson, 2 Ccnn. 584;
and services, prima facie to thirty years ; Bealey v. Shaw, 6 East, 208, 215 ; Wright
and conclusively to sixty years, unless v. Howard, 1 Sim. & Stu. 190, 208 Strick-
proved to have been held by consent, ex- ler v. Todd, 10 Serg. & Eawle, G3, 69 ;
pressed by deed or other writing ; in cases Balston v. Bensted, 1 Campb. 463, 465 ;
of aquatic rights, ways, "and other ease- Daniel v. North, 11 East, 371 ; Sherwood
ments, prima facie to twenty years ; and v. Burr, 4 Day, 244 ; Tinkham v. Arnold,
conclusively to forty years, unless proved 3 Greenl. 120 ; Hill v, Crosby, 2 Pick 466.
in like m.inner, by written evidence, to See Best on Presumptions, p. 103, n. (m) ;
have been enjoyed by consent of the own- Bolivar Manuf. Co. v. Neponset Manuf.
er ; and in cases of lights, conclusively to Co. 16 Pick. 241. See also post, vol. 2,
twenty years, unless proved in like man- § 537-546, tit. Pkesokiption.
ner, to have been enjoyed by consent. In ^ Ricard v. Williams, 7 Wheat. 109 ;
the Eoman Law, prescriptions were of two Prop'rs of Brattle Street Church v. Bul-
kinds : extinctive and acquisitive. The for- lard, 2 Met. 363. ,
mer referred to rights of action, which, for * Sumner v. Child, 2 Conn. 607, 628-
tbe most part, were barred by the lapse of 632, per Gould, J. ; Clark v. Faimce, 4
thirty years. The latter had regard to the Pick. 245.
mode of acquiring property by long and
24
LAW OP EVIDENCE.
[part I.
§ 18. Thus, also, a sane man is conclusively presumed to contem-
plate the natural and probable consequences of his own acts ; and,
therefore, the intent to murder is conclusively inferred from the
deliberate use of a deadly weapon.^ So, the deliberate publication
of calumny, which the publisher knows to be false, or has no reason
to believe to be true, raises a conclusive presumption of malice.^
So the neglect of a party to appear and answer to process, legally
commenced in a court of competent jurisdiction, he having been
duly served therewith and summoned, is taken conclusively against
him as a confession of the matter charged.^
§ 19. Conclusive presumptions are also made in favor of judicial
proceedings. Thus the records of a court of justice are presumed
to have been correctly made ; * a party to the record is presumed to
1 1 Euss. on Crimes, 658-660 ; Rex v.
Dixon, 3 M. & S. 15 ; 1 Hale, P. C. 440,
441 ; Britton, 50, § 6. But if death does
not ensue till a year and a day (that is, a
full year) after the stroke, it is conclusive-
ly presumed that the stroke was not the
sole cause of the death, and it is not mur-
der. 4 Bl. Coram. 197 ; Glassford on E vid.
592. The doctrine of presumptive evi-
dence was familiar to the Mosaic Code ;
even to the letter of the principle stated in
the text. Thus, it is laid down, in regard
to the manslayer, that " if he smite him
with an instrument of iron, so that he die,"
— or, " if he smite him with throwing a
stone wherewith he may die, and he die," —
or, " if he smite him with a hand-weapon of
wood wherewith he may die, and he die, he
is a murderer." See Numh. xxxv. 16, 17,
18. Here, every instrument of iron is con-
clusively taken to be a deadly weapon;
and the use of any such weapon raises a
conclusive presumption of malice. The
same presumption arose from Ijing in am-
bush, and thence destroying another. Id. v.
20. But, in other cases, the existence of
malice was to be proved, as one of the
facts in the case ; and, in the absence of
maUce, the offence was reduced to the de-
gree of manslaughter, as at the common
law. Id. V. 22, 23. This very reasonable
distinction seems to have been unknown
to the Gentoo Code, which demands life
for life in all cases, except where the cul-
prit is a Bramin. " If a man deprives
another of life, the magistrate shall deprive
that person of life." Halhed's Gentoo
Laws, Book 16, sec. 1, p. 233. Formerly,
if the mother of an illegitimate child, re-
cently born and found dead, concealed the
fact of its birth and death, it was conclu-
sively presumed that she murdered it.
Stat. 21 Jac. 1, c. 37 ; probably copied
from a similar edict of Hon. II. of France,
cited by Domat. But this unreasonable
and barbarous rule is now rescinded, both
in England and America.
The subject of implied malice, fi'om the
unexplained fact of killing with a lethal
weapon, was fully discussed in Common-
wealth V. York, 9 Met. 103, upon a differ
ence of opinion among the learned judges;
and the rule there laid down, in favor of
the inference, was re-affirmed in Common
wealth V. Webster, 5 Cush. 305. [See
also inf-a, § 34.
2 Bodwell V. Osgood, 3 Pick. 379 ;
Haire v. Wilson, 9 B. & C. 643 ; Bex v.
Shipley, 4 Doug. 73, 177, per Ashhurst, J.
[See a\so post, vol. 2 (7th ed.), § 418.]
^ 2 Erskine, Inst. 780. Cases of this
sort are generally regulated by statutes, or
by the rules of practice established by the
courts ; but the principle evidently belongs
to a general jurisprudence. So is tlie Eo-
man Law. " Contumacia, eorura, qui, jus
dioenti non obtemperant, litis damno coer-
ceTur." Dig. hb. 42, tit. 1, 1. 53. " Si
citatus aliquis non compareat, habetur pro
consentiente." Mascard, De Prob. vol. 3,
p. 253, concl. 1169, n. 26. See further on
this subject, infra, § 204-211. The right
of the party to have notice of the proceed-
ings against him, before his non-appear-
ance, is taken as a confession of the matter
alleged, has been distinctly recognized in
the courts both of England and America,
as a rule, founded in the first principles of
natural justice, and of universal obligation.
Fisher v. Lane, 3 Wils. 802, 303, per Lee,
C. J. ; The Mary, 9 Cranch, 144, per Mar-
shall, C. J. ; Bradstreet v. The Neptune
Ins. Co. 3 Sumn. 607, per Story, J.
* Eeed v. Easton, 1 East, 855. Ees
judicata pro veritate accipitur. Dig. lib.
50, tit. 17, 1. 207.
CHAP. IT.j PBESUMPTITE EVIDENCE. 25
have been interested in the suit ; ^ and, after verdict, it will be
presumed that those facts, without proof of which the verdict could
not have been found, were proved, though they are not expressly
and distinctly alleged in the record; provided it contains terms
sufficiently general to comprehend them in fair and reasonable
intendment.^ The presumption will also be made, after twenty
years, in favor of every judicial tribunal acting within its jurisdic-
tion, that all persons concerned had due notice of its proceedings."
A like presumption is also sometimes drawn from the solemnity of
the act done, though not done in court. Thus a bond or other
specialty is presumed to have been made upon good consideration,
as long as the instrument remains unimpeached.*
§ 20. To this class of legal presumptions may be referred one of
the applications of the rule, Ex diuturnitate temporis omnia prcesur
muntur rite et solenniter esse acta ; namely, that which relates to
transactions, wliicli are not of record, the proper evidence of which,
after the lapse of a little time, it is often impossible, or extremely
difficult to produce. The rule itself is nothing more than the
principle of the statutes of limitation, expressed in a different form,
and applied to other subjects. Thus, where an authority is given
by law to executors, administrators, guardians, or other officers
to make sales of lands, upon being duly licensed by the courts,
and they are required to advertise the sales in a particular manner,
and to observe other formalities in their proceedings ; the lapse of
sufficient time (which in most cases is fixed at thirty years) ,^
1 Stein V. Bowman, 13 Pet. 209. HoweU, St. E. 261 ; Ferrer's case, 6 Co. 7.
2 Jackson v. Pesked, 1 M. & S. 234, 237, The effect of judgments will be farther
per Ld. Ellenborough : Stephen on PI. considered hereafter. See infra, § -528-
166, 167 ; Spiers v. Parker, 1 T. R. 141; 643.
IXathrop v. Stewart, 5 McLean, 167 ; * Lowe v. Peers, 4 Burr. 2225.
Sprague v. Litherberry, 4 McLean, 442 ; ^ See Pejepscot Prop'rs v. Ransom, 14
Beale v. Commonwealth, 25 Penn. State Mass. 145 ; Blossom v. Cannon, Id. 177 ;
E. 11 ; Hordiman v. Herbert, 11 Texas, Colman v. Anderson, 10 Mass. 105. In
656. In pleading a discharge in bank- some cases, twenty years lias been held
ruptcy, if the plea shows the District sufficient. As, .in favor of the acts of
Court to have had jurisdiction, and to sheriffs. Drouet v. Rice, 2 Rob. Louis. R.
have proceeded, on the petition to decree 374. So, after partition of lands by an in-
the discharge, all the intermediate steps corporated land company, and a several
will be presumed to have been regularly possession, accordingly, for twenty years,
taken. Morrison v. Woolson, 9 Foster, it was presumed that its meetings were
N. H. 510]. duly notified. Society, &o., v. Wheeler, 1
' Brown v. Wood, 17 Mass. 68. A New Hamp, E. 310. [See also King v.
former judgmeat, still in force, by a court Little, 1 Cush. 436 ; Freeman v. Thayer,
of competent jurisdiction, in a suit between 33 Maine, 76; Cobleigh v. Young, 15
the same parties, is conclusive evidence, N. H. 498 ; Freeholders of Hudson Co. v.
upon the matter directly in question in State, 4 Zabr. 718 ; State v. Lewis," 2 New
such suit, in any subsequent action or pro- Jersey, 564 ; Allegheny v. Nelson, 25 Penn.
ceedlng. Duchess of Kingston's case, 11 St. R. 832 ; Plank-road Co. v. Bruce, S
VOL I 3
26 LAW OF EVIDENCE. [PAIW I.
raises a conclusive presumption that all the legal formalities of the
sale were observed. The license to sell, as well as the official char-
acter of the party, being provable by record or judicial registration,
must in general be so proved ; and the deed is also to be proved
in the usual manner ; it is only the intermediate proceedings that
are presumed. Prohatis extremis, prcesumuntur media?- The rea-
son of tills rule is found in the great probability, that the necessary
intermediate proceedings were all regularly had, resulting from
the lapse of so long a period of time, and the acquiescence of the
parties adversely interested ; and in the great uncertainty of titles,
as well as the other public mischiefs, which would result, if strict
proof were required of facts so transitory in their nature, and the
evidence of which is so seldom preserved with care. Hence it does
not extend to records and public documents, which are supposed
always to remain in the custody of the officers charged with their
preservation, and which, therefore, must be proved, or their loss
accounted for, and supplied by secondary evidence.^ Neither does
the rule apply to cases of prescription.^
[* § 20a. The presumption, omnia rite acta, may arise from lapse
of time, as before stated ; or from the fact of being done by one
bound to know, and to act conformably to, the law. As where an
oath is administered to a deponent, in a foreign state, by one sign-
ing himself, " Justice of the Supreme Court." * But it was said,
in a recent English case,^ that the force of such presumptions
must vary with the circumstances of each case.]
§ 21. The same principle applies to the proof of the execution of
ancient deeds and wills. Where these instruments are more than
thirty years old, and are unblemished by any alterations, they are
said to prove themselves ; the bare production thereof is sufficient ;
Md. 457 ; Emmons v. Oldham, 12 Texas, 2 W. BI. 1228. Proof that one's ancestor
18. Where nine years before the com- sat in the House of Lords, and that no
mencement of the suit, a meeting of a patent can be discovered, affords a pre-
proprietary had been callsd, on the appli- sumption that he sat by summons. The
cation of certain persons representing Braye Peerage, 6 CI. & Fin. 657. See
themselves to be proprietors, it was lield also, as to presuming the authority of an
that there was no legal presumption that executor, Piatt w. McCullough, 1 McLean,
the petitioners for the meeting were pro- 73.
prietors, however the rule might be as to 2 Brunswick v. McKeen, 4 Greenl. 508 ;
ancient transactions, but that proof of some Hathaway v. Clark, 5 Pick. 490.
kind, to show the fact that they were pro- « Eldridge v. Knott, Cowp. 215 ; Mayor
prietors, must be adduced to sustain the of ICingston v. Horner, Id. 102.
issue. Stevens v. Taft, 3 Gray, 487;] * [*Saltar v. Applegate, 3 Zabr. 116.
[ * WiUiams v. Eyton, 4 H, & N. 357 ; s. c. 5 Vinnicombe ti. Butler, 34 L. J. Prob.
6 Jur. N. s. 770.] 18.]
1 Erskine, Inst. 782 ; Earle v. Baxter,
CHAP. IV.] PRESUMPTIVE EVIDENCE. 27
the subscribing witnesses being presumed to be dead. This pre-
sumption, so far as tliis rule of evidence is concerned, is not affected
by proof that the witnesses are living.^ But it must appear that
the instrument comes from such custody, as to aiFord a reasonable
presumption in favor of its genuineness ; and that it is otherwise
free from just grounds of suspicion; ^ and in the case of a bond for
the payment of money, there must be some endorsement of interest,
or other mark of genuineness, within the thirty years, to entitle it
to be read.^ Whether, if the deed be a conveyance of real estate,
the party is bound first to show some acts of possession under it,
is a point not perfectly clear upon the authorities ; but the weight
of opinion seems in the negative, as will hereafter be more fully
explained.* But after an undisturbed possession for thirty years,
of any property, real or personal, it is too late to question the au-
thority of the agent, who has undertaken to convey it,'' unless his
authority was by matter of record.
§ 22. JEstoppels may be ranked in this class of presumptions. A
man is said to be estopped, when he has done some act, which the
policy of the law will not permit him to gainsay or deny. " The
law of estoppel is not so unjust or absurd as it has been too much
the custom to represent." ^ Its foundation is laid in the obligation
which every man is imder to speak and act according to the truth
of the case, and in the policy of the law, to prevent the great mis-
chiefs resulting from uncertainty, confusion, and want of confidence,
in the intercourse of men, if they were permitted to deny that
which they have deliberately and solemnly asserted and received
«
i Eex V. Tarringdon, 2 T. R. 471, per 570 ; Swimierton v. Marquis of Stafford,
Buller, J.; Doe v. WoUey, 8 B. & C. 22; 3 Taunt. 91; Jackson v. Davis, 5 Cow-
Bull. K. P. 255; 12 Vin. Abr. 84; Gov. en, 123; Jackson v. Luquere, Id. 221;
&c. of Chelsea Waterworks v. Cowper, 1 Doe v. Beynon, 4 P. & D. 193; Doe v.
Esp. 275 ; Rex v. Ryton, 5 T. R. 259 ; Samples, 3 Nev. & P. 254.
Rex V. Long, Buckby, 7 East, 45 ; McKe- " JForbes v. Wale, 1 W. Bl. 532 ; 1 Esp.
rare v. Erazer, 9 Ves. 5 ; Oldnall v. Deakin, 278, 9. c. ; infra, §§ 121, 122.
3 C. & P. 462; Jackson v. Blanshan, 3 * Infra, § 144, note (1).
Johns. 292; Winn v. Patterson, 9 Peters, ^ Stockbridge w. West Stoekbridge, 14
G74, 675 ; Baulc United States v. Dand- Mass. 257. Where there had been a pos-
ridge, 12 Wheat. 70, 71 ; Henthorne v. session of thirty-five years, under a legis-
Doe, 1 Blackf. 157 ; Bennet v. Runyon, lative grant, it was held conclusive evi-
4 Dana, R. 422, 424 ; Cook v. Totten, dence of a good title, though the grant was
6 Dana, 110 ; Thurston v. Masterson, 9 unconstitutional. Trustees of the Episco
Dana, 233 ; Hynde v. Vattiere, 1 McLean, pal Church in Newbern v. Trustees of
115; Walton w. Coulson, Id. 124; Nor- Newbern Academy, 2 Hawks, 233.
thrope V. Wright, 24 Wend. 221 ; [King « Per Taunton, J., 2 Ad. & El. 291.
V. Little, 1 Cush. 436 ; Settle v. Alhson, 8 [See Cruise's Dig. (Greenl. 2d cd.) tit. 32,
Geo. 2011. ch. 20, § 64, note. (Greenl. 2d ed. vol 2, p.
2 Roe V. Rawlings, 7 East, 279, 291 ; 12 611.)]
Vin. Abr. 84, Evid. A. b. 5 ; infra, §§ 142,
28 LAW OF EVIDENCE. [PART I.
as true. If it be a recital of facts in a deed, there is implied a
solemn engagement, that the facts are so, as they are recited. The »
doctrine of estoppels has, however, been guarded with great strict-
ness ; not because the party enforcing it necessarily wishes to
exclude the truth ; for it is rather to be supposed, that that is true,
which the opposite party has already solemnly recited; but be-
cause the estoppel may exclude the truth. Hence, estoppels must
be certain to every intent ; for no one shall be denied setting up
the truth, unless it is in plain and clear contradiction to his former
allegations and acts.^
§ 23. In regard to recitals in deeds, the general rule is, that all
parties to a deed are bound by the recitals therein,^ which operates
as an estoppel, working on the interest in the land, if it be a deed
of conveyance and binding both parties and privies ; privies in
blood, privies in estate, and privies in law. Between such parties
and privies, the deed or other matter recited needs not at any time
be otherwise proved, the recital of it in the subsequent deed being
conclusive. It is not offered as secondary, but as primary evi-
dence, which cannot be averred against, and which forms a muni-
ment of title. Thus, the recital of a lease, in a deed of release, is
conclusive evidence of the existence of the lease against the parties,
and all others claiming imder them in privity of estate.^
1 Bowman v. Taylor, 2 Ad. & El. 278, ruptcy. Doe v. Slielton, 3 Ad. & El. 265,
289, per Ld. C. J. Denman ; Id. 291, per 283. If the deed recite that the consider-
Taunton, J. ; Lainson v. Tremere, 2 Ad. ation was paid by a husband and wife, pa-
& El. 792; Pelletrau v. Jackson, 11 Wend, rol evidence is admissible to show that the
117 ; 4 Kent, Comm. 261, note ; Carver v. money consisted of a legacy given to the
Jackson, 4 Peters, 83. wife. Doe v. Statham, 7 D. & Ey. 141.
2 But it is not true, as a general propo- ^ Shelly v. Wright, Willes, 9 ; Crane
sition, that one claiming land under a v. Morris, 6 Peters, 611 ; Carver v. Jack-
deed to which he was not a party, adopts son, 4 Peters, 1, 83 ; Cossens v. Cossens,
the recitals of facts in an anterior deed, Willes, 25. But such recital does not bind
which go to make up his title. Therefoi-e, strangers, or those who claim by title pa-
where, by a deed made in January, 1796, raaiount to the deed. It does not bind
it was recited that S. became bankrupt in persons claiming by an adverse title, or
1781, and that, by virtue of the proceed- persons claiming from the parties by a
ings under the commission, certain lands title anterior to the date of the reciting
had been conveyed to W. and thereupon deed. See Carver v. Jackson, uh. sup.
W. conveyed the same lands to B. for the In this case, the doctrine of estoppel is very
purpose of enabling him to make a tenant fully expounded by Mr. Justice Story,
to the praecipe ; to which deed B. was not where, after stating the general principle,
a party ; and afterwards, in February, as iu the text, with the qualification just
1796, B. by a deed, not referring to the mentioned, he proceeds (p. 83) as follows,
deed last mentioned, nor to the bankrupt- " Such is the general rule. But there are
cy, conveyed the premises to a tenant to cases, in which such a recital may be used
the praecipe, and declared the uses of the as evidence even against strangers. If,
recovery to be to his mother for life, re- for instance, there be the recital of a lease
mainder to himself iu fee ; it was held in a deed of release, and in a suit against
that B. in a suit respecting other land, a stranger the title under the release comes
was not estopped from dispullngS.'s bank- in question, there the recital of the leasa
CHAP. IV.J
PRESUMPTIVE EVIDENCE.
§ 24. Tims, also, a grantor is, in general, estopped by his deed
ifrom denying that he had any title in the thin^ granted. But
in such a release is not per se evidence of
the existence of the lease. But if the ex-
istence and loss of tlic lease be established
by other evidence, there the recital is ad-
missible, as secondary proof, in the absence
of more perfect evidence, to establish the
contents of the lease ; and if the transac-
tion be an ancient one, and the possession
has been long held under such release, and
is not otherwise to be accounted for, there
the recital will of itself, under such cir-
cumstances, materially fortify the pre-
sumption, li-om lapse of time and length of
possession, of the original existence of
the lease. Leases, like other deeds and
grants, may be presumed from long pos-
session, which cannot otherwise be ex-
plained ; ' and, under such circumstances,
a recital of the fact of such a lease in an
old deed is certainly far stronger presump-
tive proof in favor of such possession un-
der title, than the naked presumption aris-
mg from a mere unexplained possession.
Such is the general result of the doctrine
to be found in the best elementary writers
on the subject of evidence. It may not,
however, be unimportant to examine a
few of the authorities in support of the
doctrine on which we rely. The cases of
Marchioness of Anandale v. Harris, 2 P.
Wms. 432, and Shelly v. Wright, Willes,
9, are sufficiently direct, as to the opeira-
tion of recitals by way of estoppel be-
tween the parties. In Ford v. Gray, I
Salk. 285, one of the points ruled was
' that a recital of a lease in a deed of a re-
lease is good evidence of such lease against
the releasor, and those who claim under
him ; but, as to others, it is not, without
proving that there was such a deed, and
it was lost or destroyed.' The same case
is reported in 6 Mod. 44, where it is said
that it was ruled, ' that the recital of a
lease in a deed of release is good evidence
against the releasor, and those that claim
imdcr him.' It is then stated, that ' a fine
was produced, but no deed declaring the
uses ; but a deed was ojffered in evidence,
which did recite a deed of limitation of
the uses, and the question was, whether
that (recital) was evidence ; and the court
said, that the bare recital was not evidence ;
but that, if it could be proved that such a
deed had been [executed] , and [is] lost, it
would do if it were recited in another.'
This was, doubtless, the same point assert-
ed in the latter clause of the report in Sal-
keld ; and, thus explained, it is perfectly
consistent with the statement in Salkeld ;
and must be referred to a ease where the
recital was offered as evidence against a
stranger. In any other point of view, it
would be inconsistent with tlie preceding
propositions, as well as with tl.e cases in 2
P. Williams and WiUes. In Ticviian v.
Lawrence, 1 Salk. 276, the court held,
that the parties and all uhiiniiuy under
them were estopped from iis^urling tliat a
judgment, sued against ihe lai-iy as i>f
Trinity term, was not of tliiit lerni, Itut of
another terra ; that ycTy poinl I'.aving aris-
en and been decided agauist the party
upon a scire facias on the judgment. But
the court there held (what is very material
to the present purpose), that ' if a man
make a lease by indenture of .D in which
he hath nothing, and afterwards purchases
D in fee, and afterwards bargains and
sells it to A and his heirs, A shall be
bound by this estoppel ; and, that where
an estoppel works on the interest of the
lands, it runs with the land into whose
hands soever the land comes; and an
ejectment is maintainable upon the mere
estoppel.' This decision is important in
several respects. In the first place, it
shows that an estoppel may arise by im-
plication from a grant, that the party hath
an estate in the land, which he may con-
vey, and he shall be estopped to deny it.
In the next place, it shows that such es-
toppel binds all persons claiming the same
land, not only under the same deed, but
under any subsequent conveyance from
the same party ; tha.t is to say, it binds
■not merely privies in blood, but privies in
estate, as subsequent grantees and ahenees.
In the next place, it shows that an estop-
pel, which (as the phrase is) works on the
interest of the land, runs with it, into
whosesoever hands the land comes. The
same doctrine is recognized by Lord Chief
Baron Comyns, in his Digest, Estoppel,
B. & B. 10. In the latter place (E. 10)
he puts the case more strongly; for he
asserts, that the estoppel binds, even
though all the facts are found in a special
verdict. 'But,' says he, and he relies on
his own authority, 'where an estoppel
binds the estate and converts it to an in-
terest, the court will adjudge accordingly.
As if A leases land to B for six years, in
which he has nothing, and then purchases
a lease of the same land for twenty-one
years, and afterwards leases to C for ten
years, and all this is found by a verdict;
the court will adjudge the lease to B good,
though it be so only by conclusion.' A
doctrine similar in principle was asserted
in this court, in Terrett v. Taylor, 9 Cranch,
3*
30
LAW OF EVIDENCE.
[part I.
tMs rule does not apply to a grantor acting officially, as a public
agent or truste^^ A covenant of warranty also estops the grantor*
from setting up an after-acquired title against the grantee, for it is
a perpetually operating covenant ; ^ but he is not thus estopped by
a covenant, that he is seised in fee and has good right to convey ; ^
for any seisin in fact, though by wrong, is sufficient to satisfy this
covenant, its import being merely this, that he has the seisin in
fact, at the time of conveyance, and thereby is qualified to transfer
52. The distinction, then, which was
urged at the har, that an estoppel of this
sort bmds those claiming under the same
deed, but not those claiming by a subse-
quent deed under the same pai'ty, is not
well founded. AU privies in estate by a
subsequent deed are bound in the same
manner as privies in blood ; and so, in-
deed, is the doctrine of Comyns's Digest,
Estoppel B., and in Co. Lit. 352a. We
may now pass to a short review of some
of the American cases on this subject.
Denn v. Cornell, 3 Jolms. Cas. 174, is
strongly in point. There, Lieutenant-gov-
ernor Golden, in 1775, made his will, and
in it recited that he had conveyed to his
son David his lands in the township of
Flushing, and he then devised his other
estate to Ms sons and daughters, &c., &c.
Afterwards, David's estate was coniiscated
under the act of attainder, and the defend-
ant in ejectment claimed under that con-
fiscation, and deduced his title from the
state. No deed of the Flushing estate
(the land in controversy) was proved from
the father ; and the heir at law sought to
recover on that ground. But the court
held that the recital in the will, that the
testator had conveyed the estate to David,
was an estoppel of the heir to deny that
feet, and bound the estate. In tliis case,
the estoppel was set up by the tenant
claiming under the state, as an estoppel
running with the land: If the state or its
grantee might set up the estoppel in favor
of their title, tlien, as estoppels are recip-
rocal, and bind botli parties, it might have
been set up against the state or its grantee.
It has been said at tiie bar, that the estate
is not hound by estoppel by any recital in a
deed. That may be so where the recital is
In his own grants or patents, for they are
deemed to be made upon suggestion of the
grantee. (But see Commonwealth u. Pe-
jepscot Proprietors, 10 Mass. 155.) But
where the state claims title under tlie deed,
or otiier solemn acts of third persons, it
takes it cam onere, and subject to all tlie es-
toppels runnhig with the title and estate, in
the same «iiy as other privies in estate.
In Penrose v. Griffith, 4 Binn. 231, it was
held that recitals in a patent of the Com-
monwealtli were evidence against it, but
not against persons claiming by a title par-
amount from the Commonwealth. The
court there said, that the rule of law is,
that a deed containing a recital of another
deed is evidence of the recited dee'd against
the grantor, and all persons claiming by
title derived, from him subsequently. The
reason of the rule is, that the recital
amounts to the confession of the party ;
and that confession is evidence against
himself, and tliose who stand in his place.
But such confession can be no evidence
against strangers. Tlie same doctrine
was acted upon and confirmed by the same
court, in Garwood v. Dennis, 4 Binn. 314.
In that case, tlie court further held, that
a recital in another deed was evidence
against strangers, where the deed was an-
cient and the possession was consistent
with the deed. That case also had the
peculiarity belonging to the present, that
the possession was of a middle nature,
that is, it might not have been held solely
in consequence of the deed, for the party
had another title ; but there never was
any possession against it. There was a
double title, and the question was, to
which the possession might be attributa^
hie. The court thought, that a suitable
foundation of the original existence and
loss of the recited deed being laid in the
evidence, the recital in the deed was good
corroborative evidence, even against stran
gers. And other authorities certainly
warrant this decision."
1 Fairtitle v. Gilbert, 2 T. R. 171 ; Co
Lit. 363, b.
2 Terrettw. Taylor, 9 Cranch,43 ; Jack-
son V. Matsdorf, 11 Johns. 97; Jackson
V. Wright, 14 Johns. 183; McWilliams
V. Nisby, 2 Serg. & Rawl. 515 ; Somes v
Skinner, 3 Pick. 52. [See Blanchard v
Ellis, 1 Gray, 195. But such a covenan)
does not estop the grantor from claiming
a way of necessity over the land granted.
Brigham v. Smith, 4 Gray, 297.1
3 Allen II. Sayward, 5 Greeni. 227.
CHAP. IV. J PRESUMPTIVE EVIDENCE. 31
the estate to the grantee.^ Nor is a feme covert estopped, by her
deed of conveyance, from claiming the land by a tiile subsequently
acquired ; for she cannot bind herself personally by any covenant.^
Neither is one who has purchased land in his own name, for the
benefit of another, which he has afterwards conveyed by deed to
his employer, estopped by such deed, from claiming the land by an
elder and after-acquired title.^ Nor is the heir estopped from
questioning the validity of his ancestor's deed, as a fraud against
an express statute.* The grantee, or lessee, in a deed poll, is not,
in general, estopped from gainsaying any thing mentioned in the
deed ; for it is the deed of the grantor or lessor only ; yet if such
grantee or lessee claims title under the deed, he is thereby estopped
to- deny the title of the grantor.^
§ 25. It was an early rule of feudal policy, that the tenant should
not be permitted to deny the title of the lord, from whom he had
received investiture, and whose liegeman he had become ; but as
long as that relation existed, the title of the lord was conclusively
presumed against the tenant, to be perfect and valid. And though
the feudal reasons of the rule have long since ceased, yet other
reasons of public policy have arisen in their place, thereby preserv-
ing the rule in its original vigor. A tenant, therefore, by inden
tare, is not permitted, at this day, to deny the title of his lessor,
while the relation thus created subsists. It is of the essence of
the contract under which he claims, that the paramount ownership
of the lessor shall be acknowledged during the continuance of the
lease, and that possession shall be surrendered at its expiration.
He could not controvert this title without breaking the faith which
he had pledged.^ But this doctrine does not apply with the same
force, and to the same extent between other parties, such as re-
leasor and releasee, where the latter has not received possession
' Marston v. Hobbs, 2 Mass. 433 ; * Doe v. Lloyd, 8 Scott, 93.
Bearce v. Jackson, 4 Mass. 408 ; Twom- ^ Co. Lit. 363, b ; Goddard's case, 4 Co.
bly V. Henly, Id. 441 ; Chapell v. Bull, 17 4. But he is not always concluded by re-
Mass. 213. [* These cases have not been citals in anterior title deeds. See supra, §
followed in s jme of the other states, where 23, note.
it is held that covenants of seisin bind the ^ Com. Dig. Estoppel, A. 2 ; Cr.aig.
party to show that he had good title at the Jus. Eeud. lib. 3, tit. 5, §§ 1, 2; Blight's
date of the covenant. See Eichardson v. Lessee v. Rochester, 7 Wheat. 535, 547.
Dorr, 5 Vert. R. 9 ; Hosmer, Ch. J., in [The assignee of a lease, who enters upon
Lockwood V. Sturdevant, 6 Conn. 373.] and occupies the premises, is estopped in
2 Jackson v. Vanderhayden, 17 Johns, an action for the rent, brought against him
167 ; [Lowell v. Daniels, 2 Gray, 161.1 by the original lessor, to deny the validity
* Jackson v. Mills, 18 Johns. 463 ; 4 of the assignment by the original lessee to
Kent, Comm. 260, 261, note. him. Blake v Sanderson, 1 Gray, 332.]
82 LAW OP EVIDENCE. [PAET I.
from the former. In such cases, where the party already in
possession of land, iinder a claim of title by deed, purchases peace
and quietness of enjoyment, by the mere extinction of a hostile
claim by a release, without covenants of title, he is not estopped
from denying the validity of the title, which he has thus far exW-
guished.^ Neither is this rule applied in the case of a lease already
expired ; provided the tenant has either quitted the possession, or
has submitted to the title of a new landlord ; ^ nor is it applied to
the case of a tenant, who has been ousted or evicted by a title
paramount ; or who has been drawn into the contract by the fraud
or misrepresentation of the lessor, and has, in fact, derived no
benefit from the possession of the land.^ Nor is a defendant in
ejectment estopped from showing that the party, under whom the
lessor claims, had no title when he conveyed to the lessor, although
the defendant himself claims from the same party, if it be by a
subsequent conveyance.*
§ 26. This rule in regard to the conclusive effect of recitals in
deeds is restricted to the recital of things in particular, as being
in existence at the time of the execution of the deed ; and does
not extend to the mention of things in general terms. Therefore,
if one be bound in a bond, conditioned to perform the covenants
in a certain indenture, or to pay the money mentioned in a certain
recognizance, he shall not be permitted to say that there was no
such indenture or recognizance. But if the bond be conditioned,
that the obligor shall perform all the agreements set down by A.,
or carry away all the marl in a certain close, he is not estopped by
this general condition from saying, that no agreement was set
down by A., or that there was ho marl in the close. Neither does
this doctrine apply to that which is mere description in the deed,
and not an essential averment; such as the quantity of land;. its
nature, whether arable or meadow ; the number of tons in a vessel
chartered by the ton ; or the like ; for these are but incidental and
1 Fox V. Widgery, 4 Greenl. 214 ; the tenant, upon the lessor afterwards dis-
Blight's Lessee v. Rochester, 7 "Wheat, training for rent, was not stopped to allege,
■ 535, 547 ; Ham v. Ham, 2 Shepl. 351. that the right of the latter had expired.
Tims, where a stranger set up a title to Downs v. Cooper, 2 Ad. & El. 252, sr. s.
the premises, to which -the lessor submit- ^ England v. Slade, 4 T. R. 681 ; Balls
ted, directing his lessee in future to pay v. Westwood, 2 Campb. 11.
the rent to the stranger ; it was held, that ^ Hayne v. Maltby, 3 T. R. 438 ; Hoam
the lessor was estopped from afterwards u. Tomlin, Peake's Cas. 191.
treating the lessee as his tenant ; and that * Doe v. Payne, 1 Ad. & El. 538.
CHAP. IV.]
PEESUMPTIVE EVIDENCE.
33
collateral to the principal thing, and may be supposed not to have
received the deliberate attention of the parties. ^
§ 27. In addition to estoppels by deed, there are two classes of
admissions which fall under this head of conclusive presumptions
of law ; namely, solemn admissions, or admissions in judicio, which
have been solemnly made in the course of judicial proceedings,
either expressly, and as a substitute for proof of the fact, or tacitly,
by pleading ; and unsolemn admissions, extra judicium, which have
been acted upon, or have been made to influence the conduct of
others, or to derive some advantage to the party, and which cannot
afterwards be denied without a breach of good faith. Of the for-
mer class are all agreements of counsel, dispensing with legal
proof of facts.2 So if a material averment, well pleaded, is passed
1 4 Com. Dig. Estoppel, A. 2; Yelv.
227 (by Metcalf), note (1) ; Doddington's
case, 2 Co. 33; Skipworth v. Green, 8
Mod. 311 ; 1 Stra. 610, s. c. Whether the
recital of the payment of the consider-
ation-money, in a deed of conveyance, falls
within the rule, by which the party is
estopped to deny it, or belongs to the
exceptions, and therefore is open to oppos-
ing proof, is a point not clearly agreed.
In England, the recital is regarded as con-
clusive evidence of payment, binding the
parties by estoppel. Shelly v. Wright,
Willes, 9 ; Cossens v. Cossens, Id. 25 ;
Kowntree ». Jacob, 2 Taunt. 141 ; Lampon
V. Corke, 5 B. & Aid. 606 ; Baker v. Dew-
ey, 1 B. & C. 704 ; Hill v. Manchester, and
Salford Water Works, 2 B. & Aid. 544.
See also Powell v. Monson, 3 Mason, 347,
351, 356. But the American courts have
been disposed to tre.it the recital of the
amount of the money paid, like the mention
of the date of the deed, the quantity of
land, the amount of tonnage of a vessel,
and other recitals of quantity and value,
to which the attention of the parties is
supposed to have been but shghtly di-
rected, and to which, therefore, the princi-
ple of estoppels does not apply. Hence,
though the p.irty is estopped from denying
the conveyance, and that it was for a val-
uable considsration, yet the weight of
American authority is in favor of treating
the recital as only prima facie evidence of
the amount paid, in an action of covenant
by the grantee to recover back the con-
sideration, or, in an action of assumpsit by
the grantor, to recover the price which is
yet unpaid. The principal cases are, —
in Massachusetts, Wilkinson v. Scott, 17
Mass. 249 ; Clapp v. Tirrell, 20 Pick. 247 ;
Livermore v. Aldrich, 5 Cush. 431; — in
Maine, Schilenger v. McCann, 6 Greenl.
364; Tyler v. Carlton, 7 Greenl. 175;
Emmons v. Littlefield, 1 Shepl. 233 ; Bur-
bank V. Gould, 3 Shepl. 118 ; — inVermont,
Beach v. Packard, 10 Verm. 96 ; — in New
Hampshire, Morse v. Shattuck, 4 New
Hamp. 229 ; Pritehard v. Brown, Id. 397 ,
— in Connecticut, Belden v. Seymour, 8
Conn. 304; — in New York, Shepherd v.
Little, 14 Johns. 210 ; Bowen v. Bell, 20
Johns. 388; Whitbeck v. Whitbeck, 9
Cowen, 266; McCrea v. Purmort, 16
Wend. 460; — in Pennsylvania, Weigly v.
Weir, 7 Serg. & Eawl. 311; Watson v.
Blaine, 12 Serg. & Rawl. 131; Jack v.
Dougherty, 3 Watts, 151; — in Maryland,
Higdon V. Thomas, 1 Har. & Gill, 139;
Lingan.D. Henderson, 1 Bland, Ch. 236.
249; — in Virginia, Duval v. Bibb, 4 Hen.
& Munf. 113; Harvey v. Alexander, 1
•Randolph, 219 ; — in South Carolina, Curry
V. Lyies, 2 Hill, 404 ; Garret v. Stuart, 1
McCord, 514; — in Alabama, Mead v. Ste-
ger, 5 Porter, 498, 507; — in Tennessee,
Jones V. Ward, 10 Yerger, 160, 166; — in
Kentucky, Hutchinson v. Sinclair, 7 Mo'n-
roe, 291, 293; Gully v. Grubbs, 1 J. J.
Marsh. 389. The courts in North Carolina
seem still to hold the recital of payment as
conclusive. Brocket v. Foscue, 1 Hawks,
64; Spiers v. Clay, 4 Hawks, 22; Jones
V. Sasser, 1 Dev. & Batt. 452. And in
Louisiana, it is made so by legislative en-
actment. Civil Code of Louisiana, Art.
2234; Forest v. Shores, 11 Louis. 416.
See also Steele v. Worthington, 2 Ohio R.
350; [and see Cruise's Dig. (Greenl. 2d
ed.) tit. 32, ch. 2, § 38, note ; ch. 20, § 52,
note (Greenl. 2d ed. vol. 2, pp. 322, 607)1.
^ See infra, §§ 169, 170, 186, 204, 205 ;
Kohn V. Marsh, 3 Rob. (Louis.) R. 48
34 LAW OF EVIDENCE. [PABT I.
over by the adverse party, without denial, whether it be by confes-
sion, or by pleading some other matter, or by demurring in law, it
is thereby conclusively admitted. ^ So also the payment of money
into court, under a rule for that purpose, in satisfaction of so much
9f the claim as the party admits to be due, is a conclusive admission
of the character in which the plaintiff sues, and of his claim to the
amount paid.^ The latter class comprehends, not only all those
declarations, but also that line of conduct by which the party has
induced others to act, or has acquired any advantage to himself.^
Thus, a woman cohabited with, and openly recognized by a man,
as his wife, is conclusively presumed to be such, when he is sued
as her husband, for goods furnished to her, or for other civil lia-
bilities growing out of that relation.* So where the sheriff returns
any thing as fact, done in the course of his duty in the service of a
precept, it is conclusively presumed to be true against him.^ And
if one party refers the other' to a third person for information con-
cerning a matter of mutual interest in controversy between them,
the answer given is conclusively taken as true, against the party
referring.^ This subject will hereafter be more fully considered,
under its appropriate title. ^
§ 28. Conclusive presumptions of law are also made in respect
to infants and married women. Thus, an infant under the age
of seven years is conclusively presumed to be incapable of com-
mitting any felony, for want of discretion ; ^ and under fourteen,
a male infant is presumed incapable of committing a rape.^ A
female under the age of ten years is presumed incapable of con-
senting to sexual intercourse.'^ Where the husband and wife
cohabited together, as such, and no impoteucy is proved, the
issue is conclusively presumed to be legitimate, though the wife is
proved to have been at the saine time guilty of infidelity.^i And
1 Young V. Wright, 1 Campb. 139 ; ^ Simmons v. Bradford, 15 Mass. 82.
Wilson V. Tm-ner, 1 Taunt. 398. But if a ^ Lloyd v. Willan, 1 Esp. 178 ; Deles-
deed is admitted in pleading, there must line v. Greenland, 1 Bay, 458 ; Williams
still be proof of its identity. Johnson v. v. Innes, 1 Campb. 364-; Burt v. Palmer, S
Cottingham, 1 Arrast. Macartn. & Ogle, Esp. 145.
R. 11. ^ See infra, § 169 to 212.
2 Cox V. Parry, 1 T. R. 464 ; Watkins « 4 Bl. Comm. 23. [See 3 Greenl. Ev.
V. Towers, 2 T. R. 275; Griffiths v. Wil- (4th ed.) p. 4.1
liams, 1 T. E. 710. [See inf™, § 205.] »1 Hal. P. C. 630; 1 Russell on
3 See infra, §§ 184, 195, 196, 207, 208. Crimes, 801 ; Rex v. Phillips, 8 C. & P.
* Watson V. Threlkeld, 2 Esp. 637 ; 736 ; Rex v. Jordan, 9 C. & P. 118 ; [3
Monro v. De Chemant, 4 Campb. 215; Greenl. Ev. (4th ed.) §§ 4, 215.]
Robinson v. Nahou, 1 Campb. 245 ; post, i" 1 Russell on Crimes, 810.
§ 207 11 Cope V. Cope, 1 Mood. & Pob. 269.
CHAP. IV.] PRESUMPTIYE ETIDENCE. 35
if a wife ai.t in company with her husband in the commission of
a felony, otlier than treason or homicide, it is conclusively pre-
sumed, that she acted under his coercion, and consequently with-
out any guilty intent.^
§ 29. Wliere the succession to estates is concerned, the ques-
tion, which of two persons is to be presumed the survivor, where
both perished in the same calamity, but the circumstances of their
deaths are unknown, has been considered in the Roman law, and
in several other codes ; but in the common law, no rule on the
subject has been laid down. By the Roman law, if it were the
case of a father and son, perisliing together in the same shipwreck
or battle, and the son was under the age of puberty, it was pre-
sumed that he died first, but if above that age, that he was the
survivor; upon the principle, that in the former case the elder
is generally the more robust, and in the latter, the younger.^
The French code has regard to the ages of fifteen and sixty ;
presuming that of those under the former age the eldest survived ;
and that of those above the latter age the youngest survived. If •
the parties were between those ages, but of different sexes, the
male is presumed to have survived ; if they were of the same sex,
the presumption is in favor of the survivorship of the younger,
as opening the succession in the order of nature.^ The same
rules were in force in the territory of Orleans at the time of its
cession to the United States, and have since been incorporated
into the code of Louisiana.*
276 ; Morris v. Davies, 3 C. & P. 215 ; St. exceptions for the benefit of mothers, pa^
George v. St. Margaret, 1 Salk. 123 ; Ban- trons, and beneficiai-ies.
bury Peerage case, 2 Selw. N. P. (by ^ Code Civil, §§ 720, 721, 722 ; Duran-
Wheaton), 558; 1 Sim. and Stu. 153, a. ton, Cours de Droit Fran^ais, tom. 6, pp.
c. ; Eex v. Luffe, 8 East, 193. But if 39, 42, .43, 48, 67, 69 ; Eogrou, Code Civil
they Uved apart, though witliin such dis- ExpU. 411, 412; TouUier,. Droit Civil
tance as afforded an opportunity for inter- Eran<;ais, tom. 4, pp. 70, 72, 73. By the
course, the presumption of legitimacy of Mahometan Law of India, when relatives
the issue may be rebutted. Morris v. thus perish together, "it is to be pre-
Davis, 5 C. & Fin. 163. Non-access is not sumed, that they all died at the same
presumed from the fact, that the wife moment; and the property of each shall
lived in adultery with another ; it must be pass to his Uving heirs, without any por-
proved aliunde. Eegina v. Mansfield, 1 lion of it vesting in his companions in
G. & Dav. 7 ; [Hemmenway v. Towner, misfortune." See Baillie's Moohummu-
1 Allen, 209 ; PhilUps v. Allen, -/t AUen, dan Law of Inheritance, 172. Such also
453 ; Doherty i>. Clark, 3 AUen, 151.] was the rule of the ancient Danish Law.
1 4 Bl. Comm. 28, 29 ; Anon. 2 East, "-Filius in communione cum patre et nja-
P. C. 559 ; post, vol. 3, §§ 3, 4, 7. tre denatus, pro non nato habetur." An-
^ Dig. lib. -34, tit. 5 ; De rebus dubiis, cher. Lex Cimbrica, lib. 1, c. 9, p. 21.
1. 9, §§ 1, 3 ; Ibid. 1. 16, 22, 23 ; Menochi- * Civil Code of Louisiana, art. 930-933 ;
us de Prsesumpt. Ub. 1, Qusest. x. n. 8, 9. Digest of the Civil La-vs of the Territory
This rule, however was subject to some of Orleans, art. 60-63
36 LAW OF EVIDENCE. [PABT ,1.
§ 30. This question first arose, in common-la-w courts, upon
a motion for a mandamus, in the case of General Stanwix, who
perished, together with liis second wife, and his daughter by
a former marriage, on tlie passage from Dublin to England ; the
vessel in which they sailed having never been heard from. Here-
upon his nephew applied for letters of administration, as next
of kin ; which was resisted by the maternal uncle of the daughter,
who claimed the effects upon the presumption of the Roman law,
that she was the survivor. But this point was not decided, the
court decreeing for the nephew upon another , ground ; namely,
that the question could properly be raised only upon the statute
of distributions, and not upon an application for administration
by one clearly entitled to administer by consanguinity .^ The
point was afterwards raised in chancery, where the case was, that
the father had bequeathed legacies to such of his children as
should be living at the time of his death ; and he having perished,
together with one of the legatees, by the foundering of a vessel
on a voyage from India to England, the question was, whether the
legacy was lapsed by the death of the son in the lifetime of the
father. The Master of the Rolls refused to decide the question
by presumption, and directed an issue, to try the fact by a jury.^
But the Prerogative Court adopt the presumption, that both
perished together, and that therefore neither could transmit rights
to the other.^ In the absence of all evidence of the particular
circumstances of the calamity, probably this rule will be found
1 Eex V. Dr. Hay, 1 W. Bl. 640. The also raised, but not disposed of, in Mcehir-
matter was afterwards compromised, upon ing v. Mitchell, 1 Barh. Ch. R. 264. The
the recommendation of Lord Mansfield, subject of presumed suryivorship is fiilly
who said he knew of no legal principle on treated by Mr. Burge, in his Commenta-
wliich he could decide it. See 2 Pliillim. ries on Colonial and Foreign Laws, vol. 4,
268, in note ; Fearne's Posth. Works, 38. p. 11-29. In Chancery it has recently
^ Mason i: Mason, 1 Meriv. 308. been held, that a presumption of priority
8 'Wright <;. Netherwood, 2 Salk. 593, of death might be raised from the compar-
note (a) by Evans ; more fully reported ative age, health, and strength of the par-
under the name of "Wright v. Sarmuda, 2 ties ; and, therefore, where two brothers
Phillim. 266-277, note (c) ; Taylor v. Dip- perished by shipwreck, the circumstances
lock, 2 PhiUim. 261, 278, 280; Selwyn's being wholly unknown, the elder being
case, 3 Hagg. Eccl. K. 748. In the goods the master, and the younger the second
of Murray, 1 Curt. 596 ; Satterthwaite w. mate of the ship, it was presumed that the
Powell, 1 Curt. 705. See also 2 Kent's latter died first. Sillick v. Booth, 1 Y. &
Comm. 435, 436 (4th ed.), note (b). In C. New Cas. 117. [In Underwood v.
the brief note of Colvin v. H. M. Procura- Wing, 31 Eng. Law & Eq. 293, where a
tor-Gen., 1 Hagg. Eccl. K. 92, where the husband, wife, and children were swept
husband, wife, and infant child (if any) from the deck of a vessel by the same
perished together, the court seem to have wave, and went down together, it was held,
held, that the primd facie presumption of that, in the absence of evidence, the court
law was that the husband survived. But would not presume that the husband sur-
the point was not much moved. It was vlved the wife.]
OHAP. IV.] PRESUMPTIVE EVIDENCE. 37
the safest and most convenient ; ^ but if any circumstances of the
death of either party can be proved, there can be no inconvenience
in submitting the question to a jury, to whose province it pecu-
liarly belongs.
§ 81. Conclusive presumptions of law are not unknown to the
law of nations. Thus, if a neutral vessel be found carrying de-
spatches of the enemy between different parts of the enemy's
dominions, their effect is presumed to be hostile.^ Tlie spoliation
of papers, by the captured party, has been regarded, in all the
States of Continental Europe, as conclusive proof of guilt ; but in
England and America, it is open to explanation, unless the cause
labors under heavy suspicions, or there is a vehement presumption
of bad faith or gross prevarication.^
§ 32. In these cases of conclusive presumption, the rule of law
merely attaches itself to the circumstances, when proved; it is
not deduced from them. It is not a rule of inference from testi-
mony ; but a rule of protection, as expedient, and for the general
good. It does not, for example, assume that all landlords have
good titles ; but that it will be a public and general inconvenience
to suffer tenants to dispute them. Neither does it assume, that
all averments and recitals in deeds and records are true ; but,
that it will be mischievous, if parties are permitted to deny them.
It does not assume that all simple contract debts, of six years'
standing, are paid, nor that every man, quietly occupying land
twenty years as his own, has a valid title by grant ; but it deems
it expedient that claims, opposed by such evidence as the lapse
of those periods affords, should not be countenanced, and that
society is more benefited by a refusal to entertain such claims,
than by suffering them to be made good by proof. In fine, it
does not assume the impossibility of things which are possible ;
on the contrary, it is founded, not only on the possibility of their
existence, but on their occasional occurrence ; and it is against
1 It was so held in Coye a. Leach, 8 on evidence, and if the evidence does not
Met. 371. And see Mcehring v. Mitchell, establish the survivorship of any one, the
1 Barb. Ch. R. 264. [*See Redfield on law will treat it as a matter incapable of
Wills, Part II. § 1, n. 1. In Wing v. An- being determined. The burden of proof
grave, 8 H.L. Cas. 183, it is held that there is on the person asserting the affirma-
is no presumption of law arising from age tive.]
or sex as to survivorship among persons ^ The Atalanta, 6 Rob. Adm. 440.
whose death is occasioned by one and the ^ The Pizarro, 2 Wheat. 227, 241, 242,
same cause ; nor any presumption of law note (e) ; The Hunter, I Dods. Adm. 480
that all died at the same time : but the 486.
question is one of fact depending wholly
38 LAW OP EVIDENCE. [PART 1.
the mischiefs of their occurrence, that it interposes its protecting
prohibition. 1
§ 33. The SECOND class of presumptions of law, answering to
the prcesumptiones juris of the Roman law, which may always be
OTercome by opposing proof, ^ consists of those termed disputable
presumptions. These, as well as the former, are the result of the
general experience of a connection between certain facts, or
things, the one being usually found to be the companion, or the
effect of the other. The connection, however, in this class, is not
so intimate, nor so nearly universal, as to render it expedient,
that it should be absolutely and imperatively presumed to exist
in every case, all evidence to the contrary being rejected ; but yet
it is so general, and so nearly universal, that the law itself, with-
out the aid of a jury, infers the one fact from the proved existence
of the other, in the absence of all opposing evidence. In this
mode, the law defines the nature and amount of the evidence,
which it deems sufficient to establish a primd facie case, and to
throw the burden of proof on the other party ; and if no opposing
evidence is offered, the jury are bound to find in favor of the
presumption. A contrary verdict would be liable to be set aside,
as being against evidence.
§ 34. The rules in this class of presumptions, as in the former,
have been adopted by common consent, from motives of public
policy, and for the promotion of the general good ; yet not, as in
the former class, forbidding all further evidence ; but only ex-
cusing or dispensing with it, till some proof is given on the other
side to rebut the presumption thus raised. Thus, as men do not
generally violate the penal code, the law presumes every man
innocent; but some men do transgress it, and therefore evidence
is received to repel this presiimption. This legal presumption
of innocence is to be regarded by the jury, in every case, as
matter of evidence, to the benefit of which the party is entitled.
And where a criminal^cliarge is "to" be" proved By' "circumstantial/
evidence, the proof ought to be not only consistent with the
prisoner's guilt, but inconsistent with any other rational con-
clusion.3 On the other hand, as men seldom do unlawful acts
with innocent intentions, the law presumes every act, in itself
unlawful, to have been criminally intended, until the contrary
1 See 6 Law Mag. 348, 355, 356. s Hodge's case, 2 Lewin, Or. Cas. 227,
' Heiunec. ad. Pand. Pars iv. § 124. per Alderson, B.
CHAP. ly.J
PRESUMPTIVE EVIDENCE.
39
appears. Thus, on a charge of murder, malice is presumed from
the fact of killing, unaccompanied with circumstances of extenuar
tion ; and the burden of disproving the malice is thrown upon
the accused.! The same ..uresumptiQn ^rjses_ in civil actions,
'where the act complamed^^_wasjir^ So, also, as men
generally own the personal property they possess, proof of pos-
1 Foster's Crown Law, 255; Eex v.
Farrington, Russ. & Ey. 207. This point
was reexamined and discussed, witli great
ability smd research, in Yorli's case, 9
Met. 93, in which a majority of the learned
judges affii-med the rule as stated in the
text. Wilde, J., however, strongly dis-
sented; maintaining, with great force of
reason, that the rule was founded in a
state of society no longer existing ; that it
was inconsistent with settled principles of
criminal law; and that it was not sup-
ported by the weight of authority. He
was of opinion that the following conclu-
sions were maintained on sound principles
of law and manifest justice : 1. That
when the facts and circumstances accom-
panying a homicide are given in evidence,
the question whether the crime is murder
or manslaughter is to he decided upon the
evidence, and not upon any presumption
from the mere act of kiUing. 2. That if
there he any such presumption, it is a pre-
sumption of fact ; and if the evidence leads
to a reasonable doubt whether the pre-
sumption be well founded, that doubt will
avail in favor of the prisoner. 3. That
the burden of proof, in every criminal
case, is on the government, to prove all
the material allegations in the indictment ;
and if, on the whole evidence, the jury
have a reasonable doubt whether the de-
fendant is guilty of the crime charged,
they are bomid to acquit him. [In Com-
monwealth V. Hawkins, 3 Gray, 465, Chief
Justice Shaw said, that the doctrine of
York's case is, that where the killing is
proved to have been committed by the
defendant, and nothing fmiher is shown, the
presumption of law is that it was malicious
and an act of murder ; and that it was in-
appUcable to a case where the circumstan-
ces attending the homicide were fully
shown by the evidence; that in such a
case, tlie homicide being conceded and no
excuse or justification being shown, it was
either murder or manslaughter ; and that
the jury upon all the circumstances must
be satisfied beyond a reasonable doubt that
it was done with malice before they could
find the defendant guilty of murder. This
would appear to quaUfy materially the
rule in York's case as it has heretofore
been imderstood. [*ThiB question is inci-
dentally discussed by us in State v. Mc-
Donnell, 32 Vt. Rep. 491, in a case of hom-
icide by mutual combat; and, although
not called to decide the very point involved
in York's case, supra, we certainly formed
a very decided opinion in favor of the
views embraced in the very able dissent-
ing opinion of Mr. Justice Wilde.] See
infra, § 81 5.]
2 In Bromage v. Proser, 4 B. & C. 247,
255, 256, which was an action for words
spoken of the plaintiffs, in their business
and trade of bankers, the law of imphed
or legal malice, as distingviished from mal-
ice in fact, was clearly expounded by Mr.
Justice Bayley, in the foUowing terms:
"Mahce, in the common acceptation,
means ill-will against a person, but in its
legal sense, it means a wrongful act, done
intentionally without just cause or excuse.
If I give a perfect stranger a blow Ukely
to produce death, I do it of malice, because
I do it intentionally and without just cause
or excuse. If I maim cattle, without
knowing whose they are, if I poison a
fishery, without knowing the owner, I do
it of malice, because it is a wrongful act,
and done intentionally. If I am arraigned
of felony, and wHfiiUy stand mute, I am
said to do it of mahce, because it is inten-
tional and without just cause or excuse.
Russell on Crimes, 614, n. 1. And if I
traduce a man, whether I know him or
not, and whether I iatend to do him an
injtu-y or not, I apprehend the law consid-
ers it as done of mahce, because it is wrong-
ful and intentional. It equally works an
injury, whether I meant to produce an in-
jury or not, and if I had no legal excuse
for the slander, why is he not to have a
remedy against me for the injury it pro-
duces "i And I apprehend the law recog-
nizes the distinction between these two
descriptions of malice, mahce in fact, tmd
malice in law, in actions of slander. In
an ordinary action tor words, it is sufldcient
to charge, that the defendant spoke them
falsely; it is not necessary to state that
they were spoken mahciously. This is so
laid down in Styles, 392, and was acljudged
upon error in Mercer v. Sparks, Owen,
51; Noy, 35. The objection there was,
that the words were not charged to have
been spoken maliciously, but the court
40
LAW OP EVIDENCE.
[part I.
session is presumptive proof of ownership?- But possession of
the fruits of crime recently after its commission, is primd facie
evidence of guilty possession ; and if unexplained either by direct
evidence, or by the attending circumstances, or by the character
and habits of life of the possessor, or otherwise, it is taken as
conclusive.^ This rule of presumption is not confined to the case
of theft, but is applied to all cases of crime, even the highest and
most penal. Thus, upon an indictment for arson, proof that
property which was in the house at the time it was burnt, was
soon afterwards found in the possession of the prisoner, was held
to raise a probable presumption, that he was present, and con-
cerned in the offence.^ The like presumption is raised in the
case of murder, accompanied by robbery ; * and in the case of the
possession of an unusual quantity of counterfeit money.^
§ 35. This presumption of innocence isso strong^_thatevenwhere
the ^uilt_can be established only by proving a negativejjtlia-t nega-
tive must, in most cases, "be proved by the party alleging the
guilt ; though the general rule of law devolves the burden of proof
on the party holding the affirmative. Thus, where the plaintiff
^complained that the defendants, who had chartered his ship, had
put on board an article higUy inflammable and dangerous, without
giving notice of its nature to the master, or others in charge of the
answered that the words were themselves
malicious and slanderous, and therefore
the judgment was affirmed. But in ac-
tions for such slander as is frima fade
excusahle on account of the cause of speak-
ing or writing it, as in the case of servants'
characters, confidential advice, or commu-
nication to persons who ask it, or have a
right to expect it, malice in fact must be
proved by the plaintiff; and in Edmondson
V. Stevenson, Bull. N. P. 8, Lord Mansfield
takes the distinction between these and
ordinary actions of slander."
[In Commonwealth v. Walden, 3 Cush.
559, 561, which was an indictment under
a statute, for maUcious mischief in wilfully
and ■maliciously injuring a certain animal,
by shooting, the court below ruled that
" maliciously " meant " the wilfully doing
of any act prohibited by law, and for wliich
the defendant had no lawful excuse." The
Supreme Court held the instructions erro-
neous, and decided that to make the act
" maliciously " done, the jury must be
satisfied that it was done either out of a
spirit of wanton cruelty or wicked revenge.
See 4 Bl. Comm. 244 ; Jacob's Law Die.
by Tomlin, tit. " Mischief, Malicious."]
1 [Armory v. Delamirie, 1 Stra. 505;
Magee v. Scott, 9 Cuslr. 150 ; Fish v. Skut,
21 Barb. 333 ; Millay v. Butts, 35 Maine,
139 ; Linscott v. Trask, lb. 150.]
2 Rex V. , 2 C. & P. 359 ; Begina
V. Coote, 1 Armst. Macartn. & Ogle, E.
337 ; The State v. Adams, 1 Hayw. 468 ;
Wills on Circumstantial Evidence, 67.
Where the things stolen are such as do
not pass from hand to hand (e. g. the ends
of unfinished woollen clothes), their being
found in the prisoner's possession, two
months after they were stolen, is sufficient
to call for an explanation ii-om him how
he came by them, and to be considered by
the jury. Rex v. Partridge, 7 C. & P. 551.
Eurtum prsesumitur commissum ab illo,
penes guem res furata inventa fuerit, adeo
ut si non docuerit a quo rem habuerit,
justJi, ex ilia inventione, poterit subjici
tormentis. Mascard. De Probat. vol. 2,
Concl. 884 ; Menoch. De Prsesumpt. Liv.
5, Praesumpt. 31. [See mst, vol. 3, §§ 31,
32, 33.]
" Rickman's case, 2 East, P. C. 1035.
* Wills on Circumst. Evid. 72.
5 Rex V. Fuller et al., Russ. & Ry. 30a
CHAP. IV.] PBESUMPTIVB EVIDENCE. • 41
ship, whereby the vessel was burnt ; he was held bound to prove
this negative averment.^ In some cases, the presumption of
innocence has been deemed Sufficiently strong to overthrow the
presumption of life. Thus, where a woman, twelve months after
Eer husband was last heard of, married a second, husband, by
■wT[^r"Slle1iaJahchitdreii"; it was held, that the Sessions, in a ques-
"EionTrpon their settlement, rightly presumed that the first husband
^as^Heaff,at the time. of the second marriage.^
§ 36. An exception to this rule, respecting the presumption of
innocence, is admitted in the case of a libel. For where a libel is
sold in a bookseller's shop, by his servant, in the ordinary course
of his employment, this is evidence of a guilty publication by the
master ; though, in general, an authority to commit a breach of
the law is not to be presumed. This exception •is founded upon
public policy, lest irresponsible persons should be put forward, and
the principal and real offender should escape. Whether such evi-
dence is conclusive against the master, or not, the books are not
perfectly agreed ; but it seems conceded, that the want of privity
in fact by the master is not sufficient to excuse him ; and that the
presumption of his guilt is so strong as to fall but little short of
conclusive evidence.^ Proof that the libel was sold in violation of
express orders from the master would clearly take the case out
of this exception, by showing that it was not sold in the ordinary
course of the servant's duty. The same law is applied to the pub-
lishers of newspapers.* [ * We apprehend, that, at the present day,
the rule is pretty generally recognized, that the acts of the servant
will always bind the master, if performed, in the language of the
learned author, " in the ordinary course of the servant's duty."
And that this rule applies, without regard to the motive of the
servant, or the actual privity of the master ; and that even where
1 Williams v. E. Ind. Co. 3 East, 192 ; Dieman's Land, bearing date only twenty-
Bull. N. P. 298. So, of allegations that a five days prior to the second marriage, it
party liad not taken the sacrament ; Eex was held, that the Sessions did right in
V. Hawkins, 10 East, 211 : had not com- presuming that the first wife was living
plied with the act of uniformity, &c. ; at the time of the second marriage. Eex
Powell V. Millburn, 3 WUls. 355, 366 : that v. Harborne, 2 Ad. & El. 540.
goods were uot legally imported; Sissons ^ Eex v. Gutch, 1 M. & M. 433; Hard-
V. Dixon, 5 B. & C. 758: tkat a theatre ing v. Greening, 8 Taunt. 42; Eex v. Al-
was not duly licensed; Eodwellu. Eedge, mon, 5 Burr. 2686; Eex v. Walter, 3 Esp.
1 C. & P. 220. 21 ; 1 Buss, on Crimes, 341 (3d ed. p.
2 Eex V. Twyning, 2 B. & Aid. 385. 251) ; Ph. & Am. on Evid. 466; 1 Phil.
But in another case, where, in a question Evid. 446.
upon the derivative settlement of the sec- * 1 Euss. on Crimes, 341 ; Eex ». Nutt,
ond wife, it was proved that a letter had BuU. N. P. 6 (3d ed. p. 251) ; Southwick
been written from the first wife from Van v. Stevens, 10 Johns. 443.
4*
42 • LAW OP EVIDENCE. [PART I.
the servant acts maliciously and in express disregard of the master's
instructions, if he act within the scope of his employment, and in
the performance of his master's business, the maxim, respondeat
superior, applies.^]
§ 37. The presumption of innocence may be overthrown, and a
presumption of guilt be raised by the misconduct of the party, in
suppressing or destroying evidence which he ought to produce, or to
which the other party is entitled. Thus, the spoliation of papers,
material to show the neutral character of a vessel, furnishes a
strong presumption, in odium spoliatoris, against the ship's neu-
trality.^ A similar presumption is raised against a party who h&
obtained possession of papers from a witness, after the service of
svipoena duces tecum upon the latter for their production, which is
withheld.^ The' general rule is, omnia prcesumuntur contra spolia-
torem.^ His conduct is attributed to his supposed knowledge that
the truth would have operated against him. Thus, if some of a
series of documents of title are suppressed by the party admitting
them to be in his possession, this is evidence that the documents
withheld afford inferences unfavorable to the title of that party .^
Thus, also, where the finder of a lost jewel would not produce it,
it was presumed against him that it was of the highest value of its
kind.^ But if the defendant has been guilty of no fraud, or
improper conduct, and the only evidence against him is of the
delivery to him of the plaintiff's goods, of unknown quality,
the presumption is, that they were goods of the cheapest quality.'
The fabrication of evidence, however, does not of itself furnish any
1 [ * See Redfield on Railways, § 137, would have teen unfavorable. SoovUl
and the numerous cases cited and com- v. Baldwin, 27 Conn. 316.]
mented onj * 2 Poth. Obi. (by Evans) 292 ; Dal-
2 The Hunter, 1 Dods. 480 ; The Pi- ston v. Coatsworth, 1 P. Wms. 731 ; Cow-
zarro, 2 Wheat. 227 ; 1 Kent, Comm. 157 ; per v. Earl Cowper, 2 P. "Wms. 720, 748-
supra, § 81. 752 ; Eex v. Arundel, Hob. 109, explainei'
3 Leeds v. Cook, 4 Esp. 256 ; Rector v. in 2 P. Wms. 748, 749 ; D. of Newcastle
Rector, 3 Gilm. 105. But a refusal to u. Kinderly, 8 Ves. S63, 375 ; Annesleyu.
produce books and papers under a notice, E. of Anglesea, 17 Howell's St. Tr. 1430.
though it lays a foundation for the intro- See also Sir Samuel Romilly's argument
duction of secondary evidence of their in Lord Melville's case, 29 Howell's St.
contents, has been held to afford no evi- Tr. 1194, 1195 ; Anon. 1 Ld. Kaym. 731 ;
denoe of the fact sought to be proved by Broom's Legal Maxims, p. 425. In Bar-
them ; such, for example, as the existence ker v. Ray, 2 Russ. 73, thp Lord Chancel-
of a deed of conveyance from one mercan- lor thought that tliis rale h.ad in some
tile partner to another. Hanson v. Eus- cases been pressed a Uttle too far. See
tace, 2 Howard, S. C. Rep. 653. [The also Harwood v. Goodright, Co\vp. 86
omission of a party to call a witness, who [See post, vol. 3, § 34.]
might equally have been called by the ^ James v. Bion, 2 Sim. & Stu. 600.
other party, is no ground for a presump- ^ Armory v. Delamirie, 1 Stra. 505.
lion that the testimony of the witness ' Clunnes v. Pezzey, 1 Campb. 8.
CHAP. IV.] PRESCMPTIVE EVIDENCE. 43
presumption of law against the innocence of the party, but is a
matter to be dealt with by the jury. Innocent persons, under the
influence of terror from the danger of their situation, have been
sometimes led to the simulation of exculpatory facts ; of which sev-
eral instances are stated in the books.^ Neither has the mere
non-production of books, upon notice, any other legal effect, than to
admit the other party to prove their contents by parol, unless
under special circumstances.^ [*It is generally considered that
when a party withholds a document in his possession which would
show the precise state of the facts, that the other testimony should
be taken most strongly against him.^]
§ 38. Other presumptions of this class are founded upon the
experience of human conduct in the course of trade; men being
usually vigilant in guarding their property, and prompt in assert-
ing their rights, and orderly in conducting their affairs, and
diligent in claiming and collecting their dues. Thus, where
a bill of exchange, or an order for the payment of money or
delivery of goods, is found in the hands of the drawee, or a promis-
sory note is in the possession of the maker, a legal presumption w.
raised that he has paid the money due upon it, and delivered the
goods ordered.* A bank-note will be presumed to have been
signed before it was issued, though the signature be torn off.^ So,
if a deed is found in the hands of the grantee, having on its face
the evidence of its regular execution, it will be presumed to have
been delivered by the grantor.^ So a receipt for the last year's or
quarter's rent is jprimd facie evidence of the payment of all the
1 See 3 Inst. 104 ; Wills on Circumst. collected. See also The State v. Vittuin,
E-rid. 113. 9 N. Hamp. 519; liincaid v. Howe, 10
2 Cooper V. Gibbons, 3 Campb. 363. Mass. 205. ' [The possession of a bond by
2 [* Attorney-General v. Windsor, 24 an obligor who is a surety therein, raises
Beavan, 679.] a legal presumption that the bond has
* Gibbon v. Featherstonhaugh, 1 Stark, been paid. Carroll v. Bowie, 7 Gill, 34.]
R. 225; Egg v. Baniett, 3 Esp. 196; Gar- [*And the party benefited by a deed or
lock V. Geortner, 7 Wend. 198 ; Alvord v. judgment will be presumed to assent to
Baker, 9 Wend. 323 ; Weidner v. Schwei- the same. Clawson v. Eichbaum, 2 Grant's
gart, 9 Serg. & R. 385 ; Shepherd v. Cur- Cases, 130.]
rie, 1 Stark. R. 454 ; Brembridge v. Os- ' Murdook v. Union Bank of Louis. 2
borne. Id. 374. The production, by the Rob. (Louis.) B. 112; Smith n. Smith, 15
plaintiff, of an I 0 U, signed by the de- N. R. 55.
fendant, is prima jhcie evidence that it was ^ Ward v. Lewis, 4 Pick. 518. [There
given by him to the plaintiff. Curtis v. is a legal presumption, that the property
Richards, 1 M. & G. 46. And where in the goods is in the consignee named in
there are two persons, father and son, of the bill of lading, so that he may sue in
the same name, .it is presumed that the his own name to recover damages for non-
father is intended, until the contrary ap- delivery thereof, &c. Lawrence v. Min-
pears. See Stebbing v. Spicer, 8 M. G. & turn, 17 How. U. S. 100 i
S. 827, where the cases to this point are
44 LAW OP EVIDENCE. [PAET I.
rent previously accrued.^ But the mere delivery of money by one
to another, or of a bank check, or the transfer of stock, unex-
plained, is presumptive evidence of the payment of an antecedent
debt, and not of a loan.^ The same presumption arises upon the
payment of an order or draft for money, namely, that it was drawn
upon funds of the drawer in the hands of the drawee. But in the
case of an order for the delivery of goods it is otherwise, they
being presumed to have been sold by the drawee to the drawer.^
Thus, also, where the proprietors of adjoining parcels of land agree
upon a line of division, it is presumed to be a recognition of the
true original line between their lots.*
§ 38a. Of a similar character is the presumption in favor of
the due execution of solemn instruments. Thus, if the sub-
scribing witnesses to a will are dead, or if, being present, they
are forgetful of all the facts, or of any fact material to its due
execution, the law will in such cases supply the defect of proof, by
presuming that the requisites of the statute were duly observed.^
The same principle, in effect, seems to have been applied in the
case of deeds.^
§ 39. On the same general principle, where a debt due by specialty
has been unclaimed, and without recognition, for twenty years, in
the absence of any explanatory evidence, it is presumed to have
been paid. The jury may infer the fact of payment from the
circumstances of the case, within that period ; but the presumption
of law does not attach, till the twenty years are expired.^ This
1 1 Gilb. Evid. (by Loffl) 309; Brew- « Burling u. Paterson, 9 C. & P. 570;
er V. Knapp, 1 Pick. 337. [See also Dewey v. Dewey, 1 Met. 849 ; Qulmby v
Hodgdon v. Wight, 36 Maine, 326.] Buzzell, 4 Shepl. 470 ; New Haven Co.
2 Welch V. Seaborn, 1 Stark. E. 474 ; Bank v. Mitchell, 15 Conn. 206 ; infra,
Patton V. Ash, 7 Serg. & E. 116, 125; §372,n. [*But there is no presumption in
Breton v. Cope, Pealce's Cas. 30 ; Lloyd v. the case of a deed, that the witnesses be-
Sandiland, Gow, E. 13, 16 ; Cary v. Ger- ing dead, would, if living, testify to the
rish, 4 Esp. 9 ; Aubert v. "Wash, 4 Taunt, grantor's soundness of mind at the time
293 ; BosweU v. Smith, 6 C. & P. 60 ; of delivery. Flanders v. Davis, 19 N. H.
PGerding v. Walter, 29 Mo. Eep. 426]. E. 139. But one will be presumed to un-
Where the plaintiff, in proving his charge derstand the contents of an instrument
of money lent, proved the delivery of a signed by him, and whether dated or not.
bank-note to the defendant, the amount or Androscoggin Bank v. KimbaU, 10 Cush.
value of which did not appear, the jury 373.]- •
were rightly directed to presume that it ' Oswald v. Leigh, 1 T. E. 270 ; Hilla-
was a note of the smallest denomination ry v. Wellar, 12 Ves. 264 ; ColseU v, Budd,
in circulation ; the burden of proving it 1 Cnmpb. 27 ; Boltz v. Ballman, 1 Yeates,
greater being on the plaintiff. Lawton «. 584 ; Cottle «. Payne, 3 Day, 289. In some
Sweeny, 8 Jur. 964. cases, the presumption of payment has
2 Alvord V. Baker, 9 Wend. 323, 324. been made by tlie court, after eighteen
* Sparhawk v. Bullard, 1 Met. 95. years ; Bex v. Stephens, 1 Burr. 434 ;
' Burgoyne v. Showier, 1 Eoberts, Clark v. Hopkins, 7 Johns. 556 ; but these
Eccl. E. 10 ; In re Leach, 12 Jur. 381. seem to be exceptions to the general rule.
CHAP. IV.J PHESUMPTITB EVIDENCE. 45
rule, with its limitation of twenty years, was first introduced into
tlie courts of law by Sir Matthew Hale, and has since been generally
recognized, both in the courts of law and of equity.^ It is applied
not only to bonds for the payment of money, but to mortgages,
judgments, warrants to confess judgments, decrees, statutes, recog-
nizances, and other matters of record, when not affected by stat-
utes ; but with respect to all other claims not under seal nor
of record, and not otherwise limited, whether for the payment
of money, or the performance of specific duties, the general analo-
gies are followed, as to the application of the lapse of time, which
prevail on kindred subjects.^ But in all these cases, the presump-
tion of payment may be repelled by any evidence of the situation
of the parties, or other circumstance tending to satisfy the jury,
bhat the debt is still due.^
§ 40. Under this head of presumptions from the course of
trade, may be ranked the presumptions frequently made from the
regular course of business in a public office-. Thus postmarks on
letters are primd facie evidence, that the letters were in the post-
oifice at the time and place therein specified.* If a letter is sent
by the post, it is presumed, from the known course in that de-
partment of the public service, that it reached its destination at
the regular time, and was received by the person to whom it was
addressed, if living at the place, and usually receiving letters there.^
[*And the same presumption has been applied to telegraphic
1 Mathews on Presumpt. Evid. 379 ; this subject being foreign from the plan of
Haworth v. Bostock, 4 Y. & C. 1 ; Gren- this work, the reader is referred to the
fell V. Girdlestone, 2 Y. & C. 662. treatise of Mr. Mathews on Presumptive
2 This presumption of the common Eridence, ch. 19, 20 ; and to Best on Pre-
law is now made absolute in the case of STimptions, Part I. ch. 2, 3. [Grantham
debts due by specialty, by Stat. 3 & 4 "Wm. v. Canaan, 38 N. H. 268.]
IV. c. 42, § 3. See also Stat. 3 & 4 Wm. IV. « Fletcher v. Braddyl, 3 Stark. E. 64 ;
c. 27, and 7 Wm. IV. & 1 Vic. c. 28. It is Eex v. Johnson, 7 East, 65 ; Eex v. Wat-
also adopted in New York, by Eev. Stat, son, 1 Campb. 215 ; Rex v. Plumer, Rus.
Part III. ch. 4, tit. 2, art. 5, and is repella- & Ey. 264 ; New Haven Co. Bank v.
ble only by written acknowledgment, made Mitchell, 15 Conn. 206.
within twenty years, or proof of part pay- ^ Saimderson v. Judge, 2 H. Bl. 509 ;
ment within that period. In Maryland, Bussard v. Levering, 6 Wheat. 102 ; Lin-
the lapse of twelve years is made a con- denberger v. Beal, lb. 104 ; Bayley on
elusive presumption of payment, in aU Bills (by Phillips & SewaU), 275, 276, 277 ;
cases of bonds, judgments, recognizances, Walter v. Haynes, Ry. & M. 149 : Warren
and other specialties, by Stat. 1715, ch. w. Warren, 1 Cr. M, & R. 250. I* Russell ».
23, § 6 ; 1 Dorsey's Laws of Maryl. p. 11 ; Beuckley, 4 R. I. Rep. 525.] [See post, vol.
Carroll v. Waring, 3 Gill & Johns. 491. 2 (7th edj, § 188, and note ; Loud v. Mer-
A like provision exists in Massachusetts, as rill, 45 Maine, 5l6 ; contra, see Freeman
to judgments and decrees, after the lapse v. Morey, lb. 50.] [ * It would seem that
ot twenty years. Rev. Stat. ch. 120, the date a letter bears wiU be regarded,
§ 24. primd facie, its true date ; but quere, Butler
* A more extended consideration of v. Mountgarret, 7 Ho. Lds. Cas 633.1
46 LAW OP EVIDENCE, [PABT I.
messages shown to have been duly forwarded.^] So, where a letter
was put into a box in an attorney's office, and the course of
business was, that a bell-man of the post-office invariably called
to take the letters from the box ; this was held sufficient to pre-
sume that it reached its destination .^ So, the time of clearance
of a vessel, sailnig under a license, was presumed to have been
indorsed upon the license, which was lost, upon its being shown,
that without such indorsement, the custom-house would not have
permitted the goods to be entered.^ So, on proof that goods
which cannot be exported without license were entered at the
custom-house for exportation, it will be presumed, that there was
a license to export them.* The returii of a sheriff, also, which is
conclusively presumed to be true, between the parties to the
process, is taken primd facie as true, even in his own favor ; and
the burden of proving it false, m an action against him for a false
return, is devolved on the plaintiff, notwithstanding it is a nega-
tive allegation.^ In fine, it is presumed, until the contrary is
proved, that every man obeys the mandates of the law, and per-
forms all his official and social duties.'^ The like presumption is
also drawn from the usual course of men's private offices and
business, where the primary evidence of the fact is wanting.'
§ 41. Other presumptions are founded on the experienced con-
tinuance or permanency, of longer and shorter duration, in human
affairs. When, therefore, the existence of a person, a personal
relation, or a state of things, is once established by proof, the law
presumes that the person, relation, or state of things continues
to exist as before, until the contrary is shown, or until a different
1 [* Commonwealth w.JeflMes, 7 Allen, 33 Miss. 117; Curtis v. Herrick, 14 Cal.
648.] 117; IsbeU v. N. Y. & N. Haven R. R.
' Skilbeck v. Garbett, 9 Jur. 889 ; 7 Ad. Co. 25 Conn. 556.] Hence, children born
& El. N. s. 846, s. c. during the separation of husband and wife,
* Butler V. AUnut, 1 Stark. R. 222. by a decree of divorce a mensa et thoro, are,
* Van Omeron v. Dowick, 2 Campb. /iTOKa/aae, illegitimate. St. George ti. St.
44. ■ Margaret, ISalk. 123 [* Drake u.Mooney,
6 Clark V. Lyman, 10 Pick. 47 ; Boyn- 31 Vt. 617 ; Shelbyville v. Shelbyville, 1
ton I'. Willard, id. 1S9. [* But there is no Met. (Ky.) 54; Cobb v. Ne^ycomb, 7
special ground for presuming the regu- Clarke (Iowa), 43].
larity of the proceedings oi an administra- ' Doe v. Turford, 3 B. & Ad. 890, 895 ;
tion in the sale of real estate. Doohttle v. Champneys v. Peck, 1 Stark. B. 404;
Holton, 26 Vt. R. 588.] Pritt v. Fairclough, 3 Campb. 305; Dana
» Ld. Halifax's case, BuU. N. P, [298] ; v. Kemble, 19 Pick. 112. [* An agreement
Bank United States v. Dandridge, 12 requiring a stamp being lost, and not hav-
Wheat. 69, 70 ; ^VilUams v. B. Ind. Co. 3 ing a stamp when last seen by the witness,
East, 192; Hartwell v. Root, 19 Johns. w3l be presumed never to have been
345 ; The Mary Stewart, 2 W. Rob. Adm. stamped ; and no action can be m.iintained
B. 244; [*Leay. Polk County Copper Co., by proof of its contents. Arbon v. Fussell,
21 How. D. S. 493 : Cooper v: Granberry, 9 Jur. n. s. 753, Exch.]
CHAP. IT.]
PRESUMPTIVE EVIDENCE.
47
presumption is raised, from tlie nature of the subject in question.
Tims, where the issue is upon the life or death of a person, once
shown to liave been living, the burden of proof lies upon the party
who asserts the death.^ But after the lapse of seven years, with-
out intelligence concerning the person, the presumption of life
ceases, and the burden of proof is devolved on the other party .^
This period was inserted, upon great deliberation, in the statute
of bigamy,^ and the statute concerning leases for lives,^ and has
since been adopted, from analogy in other cases.^ But where the
presumption of life conflicts with that of innocence, the . latter is
generally allowed to prevail.^ Upon an issue of the life or death
of a party, as we have seen in the like case of the presumed pay-
;nent of a debt, the jury may find the fact of death from the lapse
1 Throgmorton v. Walton, 2 EoU. E.
461 ; Wilson v. Hodges, 2 East, 313 ; Bat-
tin V. Bigelow, 1 Pet. C. C. R. 452; GiUe-
land V. Martin, 3 McLean, 490. Vivere
etiam usque ad centum annos quilibet
prffisumitur, nisi probetur mortuus. Cor-
pus Juris Glossatum, torn. 2, p. 718, note
(q) ; Mascard. De Prob. vol. 1, Concl. 103,
n. 5. [*In tracing title identity of name is
prima, facie evidence of identity of person ;
Gitt V. Watson, 18 Mo. Kep. 274.]
2 Hopewell v. De Pinna, 2 Campb. 113 ;
Loring v. Steineman, 1 Met. 204 ; Gofer v.
Thermond, 1 Kelly, 538. This presump-
tion of death, from seven years' absence,
was questioned by the Yice-ChanceUor of
England, who said it was " daily becoming
more and more untenable ;" in Watson v.
England, 14 Sim. 28 ; and again in Dow-
ley V. Winfield, Id. 277. But the correct-
ness of his remark is doubted in 5 Law
Mag. N. s. 338, 339; and the rule was
subsequently adhered to by the Lord
Chancellor in Cuthbert v. Purrier, 2 PhiU.
199, in regard to the capital of a fund, the
income of which was bequeathed to an
absent legatee ; though he seems to have
somewhat relaxed the rule in regard to
the accumulated dividends. See 7 Law
Kep. 201. The presumption in such cases
is, that the person is dead ; but not that
he died at the end of the seven years, nor
at any other particular time. Doe v. Ne-
pean, 5 B. & Ad. 86; 2 M. & W. 894.
The time of the death is to be inferred by
the jury, from the circumstances. Eust
V. Baker, 8 Sim. 443 ; Smith v. Knowlton,
UN. Hamp. 191 ; Doe v. Elanagan, 1
Kelly, 543 ; Burr v. Sim, 4 Whart. 150 ;
Bradley v. Bradley, Id. 173 [Whiteside's
Appeal, 23 Penn. St. E. 114 ;■ Spencer v.
Eoper, 13 Ired. 333 ; Primm v. Stewart, 7
Texas, 178. See also Creed, in re, 19
Eng. Law & Eq. 119 ; Merritt v. Thomp-
son, 1 Hilton, 550] . [ * Where a party who
takes under a will has not been heard of
for seven years, the testator having died
after three years had elapsed, and adver-
tisement issued on the death of the testa-
tor failing to produce any information,
such legatee must be assumed to have
survived the testator, and cannot be pre-
sumed to have died at any particular
period during the seven years. Dunn v.
Snowdon, 11 W. R. 160. A young sailor
was last seen in the summer of 1840,
going to Portsmouth to embark. His
grandmother died in March, 1841. It was
presumed that he was the survivor. Tin-
daU, in re, SO Beav. 151.]
s 1 Jac. 1, c. 11.
* 19 Car. 2, c. 6.
■' Doe V. Jesson, 6 East, 85; Doe v.
Deakin, 4 B. & Aid. 433 ; liing v. Pad-
dock, 18 Johns. 141. It is not necessary
that the party be proved to be absent from
the United States; it is sufficient, if it
appears that he has been absent for seven
years, from the particular state of his
residence, without having been heard from.
Newman v. Jenkins, 10 Pick. 515 ; Innis
V. Campbell, 1 Eawie, 373 ; Spurr v.
Trimble, 1 A. K. Marsh. 278 ; Wambough
V. Shenk, 1 Penningt. 167 ; Woods v.
Woods, 2 Bay, 476; 1 N, Y. Eev. Stat.
749, § 6.
« Rex V. Twyning, 2 B. & Aid. 385;
supra, § 35. But there is no absolute
presumption of law as to the continuance
of life; nor any absolute presumption
against a person's doing an act because
the doing of it would be an offence against
the law. In every case the circumstances
must be considered. Lapsley v. Grierson.
1 H. L. Ca. 498
48 LAW OP EVIDENCE. [PAET I.
01 a shorter period than seven years, if other circumstances
concur ; as, if the party sailed on a voyage which should long
since have been accomplished, and the vessel has not been heard
from.i But the presumption of the common law, independent of
the finding of the jury, does not attach to the mere lapse of time,
short of seven years ,^ unless letters of administration have been
granted on his estate within that period, which, in such case, are
conclusive proof of his death.^ [* The inquiry in regard to pre-
sumptions affecting questions depending upon the continuance of
life have been a good deal considered in the American, as weU as
the English courts. Thus it has been held that no presumption of
death, or marriage, or the birth of children, or the reverse, can be
made. But if events are remote, slight proof may satisfy a jury.
And, ordinarily, in the absence of evidence to the contrary, the
continuance of life will be presumed, to the common age of man.*
The fact that one sailed in a ship never heard from, after a con-
siderable period, and the payment of the amount insured upon her
as of a total loss, is good ground to presume his death.^]
§ 42. On the same ground, a partnership, or other similar rela
tion, once shown to exist, is presumed to continue, until it is
proved to have been dissolved.^ And a seisin, once proved or
admitted, is presumed to continue, until a disseisin is proved.'
The opinions, also, of individuals, once entertained and expressed,
and the state of mind, once proved to exist, are presumed to re-
main unchanged, until the contrary appears. Thus, all the mem-
bers of a Christian community being presumed to entertain the
common faith, no man is supposed to disbelieve the existence and
moral government of God, until it is shown from his own declara-
tions. In like manner, every man is presumed to be of sane
■■ In the case of a missing ship, hound Green v. Brown, 2 Stra. 1199 ; Park on
from Manilla to London, on whicli the un- Ins. 433.
derwriters had voluntarily paid the amount .^Newman v. Jenkins, 10 Pick. 515.
insured, the death of those on hoard was The production of a will, with proof of
presumed by the Prerogative Court, after payment of a legacy under it, and of an
an absence of only two years, and admin- entry in the register of burials, were held
istration was granted accordingly. In re sufficient evidence of the party's death.
Hutton, 1 Curt. 595. See also Sillick v. Doe v. Penfold, 8 C. & P. 536.
Booth, 1 Y. & Col. N. C. 117. If the per- * [* Stevens v. McNamara, 36 Maiue
son was unmarried when he went .abroad Hep. 176.
and was last heard of, the presumption of '" Main, in re, 1 Sw. & Tr. 11. See
his death carries with it the presumption also Norris, in re, Id. 6.]
that he died without issue. Rowe v. Has- '' Alderson v. Clay, 1 Stark. R. 405 ; 2
land, 1 W. Bl. 404; Doe v. Griffin, 15 Statk Evid. 590, 688 [*Eames i,. Eames.
East, 293. 41N. H. 177].
2 Watson V. King, 1 Stark. K. 121 ; ' Brown v. King, 5 Met. 173.
CHAP. IV.] PRESUMPTIVE EVIDENCE. 49
mind, until the contrary is shown ; but if derangement or imbe-
cility be proved or admitted at any particular period, it is pre-
sumed to continue, until disproved, unless the derangement was
accidental, being caused by the violence of a disease.^ [* But those
presumptions are rather matters of fact than of law ; or at most
partly of law, and partly fact.^]
§ 43. A spirit of comity, and a disposition to friendly intercourse,
are also presumed to exist among nations, as well as among
individuals. And in the absence of any positive rule, affirming or
denying, or restraining the operatirfn of foreign laws, courts of
justice presume the adoption of them by their own government,
unless they are repugnant to its policy, or prejudicial to its interest.^
The instances here given, it is believed, will sufficiently illustrate
this head of presumptive evidence. Numerous other examples and
cases may be found in the treatises already cited, to which the
reader is referred.*
§ 44. Presumptions op Fact, usually treated as composing the
second general head of presumptive evidence, can hardly be said,
with propriety, to belong to this branch of the law. They are, in
truth, but mere arguments, of which the major premise is not
a rule of law; they belong equally to any and every subject-
matter ; and are to be judged by the common and received tests
of the truth of propositions, and the validity of arguments. They
depend upon their own natural force and efficacy in generating
belief or conviction in the mind, as derived from those connections,
which are shown by experience, irrespective of any legal relations.
They differ from presumptions of law in this essential respect,
that while those are reduced to fixed rules, and constitute a branch
of the particular system of jurisprudence to which they belong,
these merely natural presumptions are derived wholly and directly
from the circumstances of the particular case, by means of the
common experience of mankind, without the aid or control of any
rules of law whatever. Such, for example, is the inference of
guilt, drawn from the discovery of a broken knife in the pocket
1 Attorney-General D. Parnther, 3 Bro. vol. 2, § 369-374, tit. "Insanity," and
Ch. Ca. 443 ; Peaslee v. Bobbins, 3 Met. §§ 689, 690.]
164; Hix v. ■Whittemore, 4 Met. 545 2 r*Sutton ». Sadler, 3 C. B. N. s. 87.]
[Perkins v Perkins, 39 N. H. 1631; 1 » Bank of Augusta ». Earle, 13 Peters,
CoUinson on Lunacy, 56; Shelford on 519; Story on Confl. of Laws, §§ 36, 37.
Lunatics, 275 ; 1 HaJ. P. C. 30 ; Swiub. * See Mathews on Presumptive Evid.
on Wills, Part 11. § lii. 6, 7. [See post, ch. 11 to ch. 22 ; Best on Presumptions.
passim.
VOL. I 6
50 LAW OP ETIDENCB. [PAET I.
of the prisoner, the other part of the blade being found sticking
in the -window of a house, which, by means of such an instrument,
had been burglariously entered. These presumptions remain
the same in their nature and operation, under whatever code the
legal effect or quality of the facts, when found, is to be decided.^
§ 45. There are, however, some few general propositions in
regard to matters of fact, and the weight of testimony by the jury,
which are universally taken for granted in the administration of
justice, and sanctioned by the usage of the bench, and which,
therefore, may with propriety be mentioned under this head.
Such, for instance, is the caution, generally given to juries, to
place little reliance on the testimony of an accomplice, unless it
is confirmed, in some material point, by other evidence. There
is no presumption of the common law against the testimony of an
accomplice; yet experience has shown, that persons capable of
being accomplices in crime are but little worthy of credit ; and
on this experience the usage is founded.^ A similar caution is to
be used in regard to mere verbal admissions of a party ; this kind
of evidence being subject to much imperfection and mistake.^
Thus, also, though lapse of time does not, of itself, furnish a con-
clusive legal bar to the title of the sovereign, agreeably to the
maxim, nullum tempus ocourrit regi; yet, if the adverse claim
could have had a legal commencement, juries are instructed or
advised to presume such commencement, after many years of
uninterrupted adverse possession or enjoyment. Accordingly,
royal grants have been thus found by the jury, after an indefinitely
long-continued peaceable enjoyment, accompanied by the usual
acts of ownership.* So, after less than forty years' possession of
a tract of land, and proof of a prior order of council for the survey
of the lot, and of an actual survey thereof accordingly, it was held,
that the jury were properly instructed to presume that a patent
had been duly issued.^ In regard, however, to crown or public
1 See 2 Stark. Evid. 684; 6 Law Mag. v. Wiffiams, 1 Hagg. Consist. B. 304.
370. This subject has been very success- See infra, under the head of Admissions,
fully illustrated by Mr. Wills, in liis " Es- § 200.
say on the Rationale of Circumstantial * Kex v. Brown, cited Cowp. 110;
Evidence," passim. [The facts, from which Mayor of Kingston v. Horner, Cowp. 102 ;
a presumption or inference is to be drawn, Eldridge v. Knott, Cowp. 215 ; Matlier v.
must be proved by direct evidence, and' Trinity Church, 3 S. & E. 509; Roe v.
not be presumed or inferred. Douglass v. Ireland, 11 East, 280 ; Road v. Brookman,
jntohell, 35 Penn. 440.] 3 T. R. 159 ; Goodtitle v. Baldwin, 11
2 See infra, §§ 380, 381. East, 488 ; 2 Stark. Evid. 672.
8 Earle v. Picken, 5 C. & P. 542, note ; ^ Jackson v. McCall, 10 Jolms. 37'
Rex V. Simmons, 6 C. & P. 540 ; Williams " Si probet possessionem excedeutem nv,'
CHAP. IT.] PRESUMPTIVE EYIDENCE. 51
grants, a longer lapse af time has generally been deeined 'neces-
sary, in order to justify this presumption, than is considered suffi-
cient to authorize the like presumption in the case of grants from
private persons.
§ 46. Juries are also often instructed or advised, in more or
less forcible terms, to presume conveyances letween private indi-
viduals, in favor of the party who has proved a right to the
beneficial enjoyment of the property, and whose possession is
consistent with the existence of such conveyance, as is to be
presumed ; especially if the possession, without such conveyance,
would have been unlawful, or cannot be satisfactorily explained.^
This is done in order to prevent an apparently just title from
being defeated by matter of mere form. Thus, Lord Mansfield
declared, that he and some of the other judges had resolved never
to suffer a plaintiff in ejectment to be nonsuited by a term, out-
standing in his own trustees, nor a satisfied term to be set up by
a mortgagor against a mortgagee ; but that they would direct the
jury to presume it surrendered.^ Lord Kenyon also said, that
in all cases where trustees ought to convey to the beneficial .owner,
he would leave it to the jury to presume, where such presumption
could reasonably be made, that they had conveyed accordingly.^
After the lapse of seventy years, the jury have been instructed to
presume a grant of a share in a proprietary of lands, from acts
done by the supposed grantee in that capacity, as one of the pro-
prietors.* The same presumption has been advised in regard to
the reconveyance of mortgages, conveyances from old to new
trustees, mesne assignments of leases, and any other species of
moriam hominum, habet vim tituli et been aUowed." And he cites as examples,
pririlegii, etiara a Principe. Et lisec est Lade v. Halford, Bull. N. P. 110 ; England
differentia inter possessionem xxx. Tel. xl. v. Slade, 4 T. K. 682 ; Doe v. Sybo-orn, 7
annorum, et uon memorabilis temporis; T. E. 2; Doe «. Hilder, 2 B. &Ald. 782;
quia per iilam acquiritur non directum, Doe v. Wrighte, Id. 710. See Best on
sed utile dominium ; per istam autem di- Presumptions, pp. 144-169.
rectum." Mascard. De Probat. vol. 1, = Lade v. Holford, Bull. N. P. 110.
p. 239, Concl. 199, n. 11, 12. « Doe v. Sybourn, 7 T. R. 2 ; Doe v.
1 The rule on this subject was stated Staples, 2 T. B. 696. The subject of the
by Tindal, C. J., in Doe v. Cooke, 6Bing. presumed surrender of terms is treated at
174, 179. " No case can be put," says he, large in Matthews on Presumpt. Evid. ch.
" in which any presumption has been 13, p. 226-259, and is ably expounded by
made, except wliere a title has been shown. Sir Edw. Sugden, in his Treatise on Ven-
by the party who calls for the presump- dors and Purchasers ch. xv. sec. 3, voh 3,
tion, good in substance, but wanting some p. 24-67, 10th ed. See also Best on Pre-
coUateral matter, necessary to make it sumptions, § 113-122.
complete in point of form. In such case, * Farrar v. Merrill, 1 Greenl. 17. A
where tlie possession is shown to have been by-law may, in like manner, be presumed,
consistent with the fact directed to be pre- Bull. N. P. 211. The case of Corpora,
sumed, and in such cases only, has it ever tions, 4 Co. 78 ; Cowp. 110.
52
LAW OP EVIDENCE.
[PAET I.
dociuiientary eddence, and acts in pais, which is necessary for
the support of a title in all other respects evidently just.^ It is
sufficient that the party, who asks for the aid of this presumption,
has proved a title to the beneficial ownership, and a long posses-
sion not inconsistent therewith ; and has made it not unreasonable
to believe that the deed of conveyance, or other act essential to
the title, was duly executed. Where these merits are wanting,
the jury are not advised to make the presumption.^ [* These pre-
sumptions for the quieting of title are not necessarily restricted
to what may fairly be supposed to have in fact occurred; but
rather, what may have^occurred, and seems requisite to quiet the
title in the possessor.^]
§ 47. The same priaciple is applied to matters belonging to the
personalty. Thus, where one town, after being set off from
another, had continued for fifty years to contribute annually to
the expense of maintaining a bridge in the parent town, this was
held sufficient to justify the presumption of an agreement to that
effect.* And, in general, it may be said that long acquiescence in
any adverse claim of right is good ground, on which a jury may
1 Emery v. Grooook, 6 Madd. 84;
Cooke V. Soltan, 2 Sim. & Stu. 154; Wil-
son V. Allen, 1 Jac. & W. 611, 620 ; Roe
V. Reade, 8 T. R. 118, 122 ; Wliite v. Fol-
jambe, 11 Ves. 350 ; Keene v. Deardon,
8 East, 248, 266 ; Tenny v. Jones, 3 M. &
Scott, 472; Rowe v. Lowe, 1 H. Bl. 446,
459 ; Van Dyck v. Van Buren, 1 Caines,
84 ; Jackson v. Murray, 7 Johns. 5 ; 4
Kent, Comm. 90, 91 ; Gray v. Gardiner, 3
Mass. 399 ; Knox v. Jenlcs, 7 Mass. 488 ;
Society, &c. <;. Yoimg, 2 New Hamp. R.
810 ; Colman v. Anderson, 10 Mass. 105 ;
Pejepscot Proprietors v. Ranson, 14 Mass.
145 ; Bergen v. Bennet, 1 Caines, 1 ; Blos-
som V. Cannon, 14 Mass. 177 ; Battles v.
HoUey, 6 Greenl. 145 ; Lady Dartmouth
I). Roberts, 16 East, 334, 339 ; Liringston
V. Livingston, 4 Johns. Ch. 287. Whether
deeds of conveyance can be presumed, in
cases where the law has made provision
for their registration, has been doubted.
The point was argued, but not decided, in
Doe V. Hirst, 11 Price, 475. And see 24
Pick. 322. The better opinion seems to
be that though the court will not, in such
case, presume the existence of a deed as a
mere inference of law, yet the fact is open
for the jury to find, as in other cases.
See Rex v. Long Buckby, 7 East, 45 ;
Trials per Pais, 237; Einch, 400; Valen-
tine V. Piper, 22 Pick. 85, 93, 94.
2 Doe V. Cooke, 6 Bing. 173, per Tin-
dal, C. J. ; Doe v. Reed, 5 B. & A. 232;
Livett V. Wilson, 3 Bing. 115; Schauber
«. Jackson, 2 Wend. 14, 37 ; Hepburn v.
Auld, 5 Cranch, 262 ; Valentine v. Piper,
22 Pick. 85. This rule has been applieil
to possessions of divers lengths of dura-
tion; as, flfty-two years, Ryder v. Hatha-
way, 21 Pick. 298 ; fifty years, Melvin v.
Prop'rs of Locks, &c. 16 Pick. 137 ; 17
Pick. 255, 3. c. ; thirty-three years. White
V. Loring, 24 Pick. 319; thirty years, Mc-
Nair v. Hunt, 5 Miss. 300 ; twenty-six
years, Newman v. Studley, Id. 291 ; twen-
ty years, Brattle-Square Church v. Bul-
lard, 2 Met. 363 ; but the latter period is
held sufficient. The rule, however, does
not seem to depend so much upon tlie
mere lapse of a definite period of time as
upon all the circumstances, taken togeth-
er ; the question being exclusively for the
jury. [See also Attorney-General v. Pro-
prietors of Meeting-house, &c. 8 Gray, 1,
62-65.1
8 [*St. Mary's College o. Attornej-
General, 3 Jur. n. s. 676.]
* Cambridge v. Lexington, 17 Pick.
222. See also Grote v. Grote, 10 Johns.
402; Schauber v. Jackson, 2 Wend. 30,
87.
CHAP, IV.] PEBSUMPTIVE ETIDBNCB. 53
presume tliat the claim had a legal commencement; sinoe it is
contrary to general experience for one man long to continue to
pay money to another, or to perform any onerous duty, or t6 sub-
mit to any inconvenient claim, unless in pursuance of some con-
tract, or other legal obligation.
§ 48. In fine, this class of presumptions embraces all the con-
nections and relations between the facts proved and the hypothesis
stated and defended, whether they are mechanical and physical,
or of a purely moral nature. It is that which prevails in the
ordinary affairs of life, namely, the process of ascertaining one
fact from the existence of another, without the aid of any rule of
law ; and, therefore, it falls witliin the exclusive province of the
jury, who are bound to find according to the truth, even in cases
where the parties and the court would be precluded by an estop-
pel, if the matter were so pleaded. They are usually aided in
their labors by the advice and instructions of the judge, more or
less strongly urged, at his discretion ; but the whole matter is free
before them, unembarrassed by any considerations of policy or
convenience, and unlimited by any boundaries but those of truth,
to be decided by themselves, according to the convictions of their
own understanding.
PART II.
RULES WHICH GOVBEIST
PRODUCTIOIS' OF TESTIMOIS'Y.
\m
TAUT n.
OF THE RULES WHICH GOVERN THE PRODUCTION OE
TESTIMONY.
CHAPTEE I.
OF THE RELEVANCY OP EVIDENCE.
* § 49. The appropriate province of the court and Jury in the trial of matters of fkct
50. Classification of the subject.
51. The proof must be confined to the point in issue.
51 a. Evidence receivable, although but remotely tending to prove the issue.
52. Proof of collateral facts not admissible even to discredit witness.
53. A wide range is allowed in proof of knowledge or intent.
53 a. So also in regard to acts of possession aflTecting title to land.
54. General evidence admissible in regard to character.
55. But this restricted to a very few actions where good character is in issue.J
§ 49. In trials of fact, without the aid of a jury, the question of
the admissibility of evidence, strictly speaking, can seldom be
raised ; since, whatever be the ground of objection, the evidence
objected to must, of necessity, be read or heard by the judge, in
order to determine its character and value. In such cases, the
only question, in effect, is upon the sufficiency and weight of the
evidence. But in trials by jury, it is the province of the presiding
judge to determine all questions on the admissibility of evidence
to the jury ; as well as to instruct them in the rules of law, by
which it is to be weighed. Whether there be any evidence or not
is a question for the judge ; whether it is sufficient evidence is a
question for the jiiry.^ If the decision of the question of admissi-
1 Per BuUer, J., in Carpenter v. Hay- ceed," said he, " to the merits of this case,
ward, Doug. 374. And see Best's Princi- I wish to say a few words upon a point,
pies of Evidence, § 76-86. [And Chand- suggested by the argument of the learned
ler V. Von Roeder, 24 How. U. S. 224.] counsel for the prisoner, upon which I
The notion that the jury have the right, have had a decided opinion during my
in any case, to determine questions of law, whole professional life. It is, that in crim-
was strongly denied, and their province inal cases, and especially in capital cases,
defined by Story, J., in the United States the jury are the judges of the law as well
V. Battiste, 2 Sumn. 243. " Before I pro- as of the fact My opinion is, that the
[57]
58
LAW OF EYIDENCB.
[part II.
bilifcy depends on the decision of
the fact of interest, for example,
jury are no more judges of the law in a
capital or other criminal case, upon a plea
of not guilty, than they are in every civil
case tried upon the general issue. In each
of these cases, their verdict, when general,
is necessarily compounded of law and
of fact, and includes both. In each they
must necessarily determine the law, as
well as the fact. In each, they have the
physical power to disregard the law, as
laid down to them by the court. But I
deny, tliat, in any case, civil or criminal,
they have the moral right to decide the
law according to their own notions or
pleasure. On the contrary, I hold it the
most sacred constitutional right of every
party accused of a crime, that the jury
should respond as to the facts, and the
court as to the law. It is the duty of the
court to instruct the jury as to the law ;
and it is the duty of the jury to follow
the law, as it is laid down by the court.
This is the right of every citizen ; and it is
his only protection. If the jury were at hb-
erty to settle the law for themselves, the
effect would be, not only that the law itself
would be most uncertain, from the different
views which different juries might take of
it ; but, in case of error, there would be no
remedy or redress by the injured party ;
for the court would not have any right to
review the law, as it had been settled by
the jury. Indeed, it would be almost im-
practicable to ascertain what the law, as
settled by the jury, actually was. On the
contrary, if the court should err, in laying
down the law to the jury, there is an ade-
quate remedy for the injured party, by a
motion for a new trial, or a writ of error,
as the nature of the jurisdiction of the
particular court may require. Every per-
son accused as a criminal has a right to be
tried according to the law of the land, the
fiied law of the land, and not by the law
as a jury may understand it, or choose,
from wantonness or ignorance, or acciden-
tal mistake, to'interpret it. If I tliought
that the jury were the proper judges of
the In w in criminal cases, I should hold it
my duty to abstain from the responsibility
of stati;ig the law to them upon any such
trial. But beUeving as I do, that every
citizen has a right to be tried by the law,
and according to the law ; that it is his
privilege and truest shield against oppres-
sion and wrong ; I feel it my duty to state
my views fully and openly on the present
occasion." The same opinion as to the
province of the jury, was strongly ex-
pressed by Lord 0. J. Best, in Levi v.
Mylne, 4 Bing. 195.
other questions of fact, such as
or of the execution of a deed,
The same subject was more fully con-
sidered in The Commonwealth v. Porter,
10 Met. '26Z, which was an indictment for
selling intoxicating hquors without license.
At the trial the defendant's counsel, being
about to argue the questions of law to the
jury, was stopped by the judge, who
ruled, and so instructed the jury, that it
was their duty to receive the law from the
court, and impUcitly to follow its direction
upon matters of law. Exceptions being
talcen to this ruUng of the judge, the point
was elaborately argued in bank, and fully
considered by the court, whose judgment,
deUvered by Shaw, C. J., concluded as fol-
lows : " On the whole subject, the views
of the court may be summarily expressed
in the following propositions : That, in all
criminal cases, it is competent for the jury,
if they see fit, to decide upon all questions
of fact embraced in the issue, and to refer
the law arising thereon to the court, in the
form of a special verdict. But it is op-
tional with the jury thus to return a spe-
cial verdict or not, and it is within their
legitimate province and power to return a
general verdict, if they see fit. In thus
rendering a general verdict, the jury must
necessarily pass upon the whole issue,
compomided of the law and of the feet,
and they may thus incidentally pass on
questions of law. In forming and return-
ing such general verdict, it is within the
legitimate authority and power of the jury
to decide definitively upon all questions
of fact involved in the issue, according to
their judgment, upon the force and effect
of the competent evidence laid before
them ; and if in the progress of the trial,
or in the summing-up and cliarge to the
jury, the court should express or intimate
any opinion upon any such question of
fact, it is within the legitimate province
of the jury to revise, reconsider, and de
cide contrary to such opinion, if, in their
judgment, it is not correct, and warrant-
ed by the evidence. But it is the duty of
the court to instruct the jury on all ques-
tions of law which appear to arise in the
cause, and also upon all questions pertinent
to the issue, upon which either party may
request the direction of the court upon
matters of law. And it is the duty of the
jury to receive the law from the court,
and conform their judgment and decision
to such instructions, as fai- as they under
stand them, in applying the law to the
facts to be found by them ; and it is not
within the legitimate province of the jury
to revise, reconsider, or decide contrary to
such opinion or direction of the court in
IJHAP.
I-J
THE EBLBTANOY OF EVIDENCE.
59
these preliminary questions of fact are, in the first instance, to be
tried by the judge ; though he may, at his discretion, take the
matter of law. To this duty jurors are
bound by a strong social and moral obliga-
lion, enforced by the sanction of an oath, to
the same extent and in the same manner
as they are conscientiously bound to de-
cide all questions of fact according to the
evidence. It is no valid objection to this
view of the duties of jurors, that they are
not amenable to any legal prosecution for
a wrong decision in any matter of law ;
it may arise &om an honest mistake of
judgment, in their apprehension of the
rules and principles of law, as laid down
by the court, especially in perplexed and
complicated cases, or from a mistake of
judgment in applying them honestly to
the facts proved. The same reason ap-
plies to the decisions of juries upon ques-
tions of fact clearly within their legiti-
mate powers ; they are not punishable for
decidmg wrong. The law vests in tliem
the power to judge, and it will presume
that they judge honestly, even though
there may be reason to apprehend that
they judge erroneously; they cannot,
therefore, be held responsible for any such
decision, unless upon evidence which
clearly estabUshes proof of corruption, or
other wilfiil violation of duty. It is within
the legitimate power, and is the duty of
the court, to superintend the course of the
trial; to decide upon the admission and
rejection of evidence ; to decide upon the
use of any books, papers, documents,
cases, or works of supposed authority,
which may be offered upon either side ; to
decide upon aU collateral and incidental
proceedings ; and to confine parties and
counsel to the matters within the issue.
As the jury have a legitimate power to
return a general verdict, and in that case
must pass upon the whole issue, this court
are of opinion that the defendant has
a right, by himself or his counsel, to ad ■
dress the jury, under the general superin-
tendence of the court, upon all the mate-
rial questions involved -in the issue, and
to this extent, and in this cpnnection, to
address the jury upon such questions of
law as come within the issue to be tried.
Such address to the jury, upon questions
of law embraced in the issue, by the de-
fendant or his coimsel, is warranted by the
long practice of the courts in this Com-
monwealth in criminal cases, in wliioh it
is within the established authority of a
jui-y, if they see fit, to return a general
verdict, embracing the entire issue of
law and fact." 10 Met. 285-287. See
also the opinion of Lord Mansfield to the
same effect, in Eex v. The Deak of St.
Asaph, 21 How. St. Tr. 1039, 1040 ; and
of Mr Hargrave, in his note, 276, to Co.
Lit. 155, where the earlier authorities are
cited. The whole subject, with particu-
lar reference to criminal cases, was re-
viewed with great learning and abiUty by
Gilchrist, J., and again by Parker, C. J.,
in Pierce's case, 13 N. Hamp. 636, where
the right of the jury to judge of the law
was denied. And see, accordingly. The
People V. Price, 2 Barb. S. C. K. 566 ;
Townsend v. The State, 2 Blackf. 152 ;
Davenport v. The Commonwealth, 1
Leigh, E. 588; Commonwealth v. Garth,
3 Leigh, E. 761 ; Montee v. The Common-
wealth, 8 J. J. Marsh. 150 ; Pennsylvania
V. BeU, Addis. E. 160, 161 ; Common-
wealth ti. Abbott, 13 Met. 123, 124 ; Hardy
V. The State, 7 Misso. E. 607; Snow's
case, 6 Shepl. 346, senib. contra. [In State
V. Croteau, 23 Vt. (8 Washb.) 14, the Su-
preme Court of Vermont, Bennett, J.,
dissenting, decided that in criminal cases
the jury has the right to determine the
whole matter in issue, the law as well as
the fact ; and the same rule is estabUshed
in several other states. The legislature of
Massachusetts, in 1855 (Acts, 1855, ch.
152), enacted, " that in all trials for crimi-
nal offences, it shall be the duty of the
jury to try, according to estabUshed forms
and principles of law, aU causes which
shall be committed to them, and after hav-
ing received the instructions of the court,
to decide at their discretion, by a general
verdict, both the fact and law involved in
the issue, or to find a special verdict at
their election ; but it shall be the duty of
the court to superintend the course of the
trials, to decide upon the admission and
rejection of evidence, and upon all ques-
tions of law raised during the trials, and
upon all collateral and incidental proceed-
ings, and also to charge the jury and to
allow bills of exception, and the court may
grant a new trial in cases of conviction.''
This act has been before the Supreme Ju-
dicial Court for exposition and construc-
tion upon exceptions taken to the niUng
of the court below in the trial of an in-
dictment against a defendant for being a
common seller of intoxicating Uquors, and
the court has decided, as appears by a
note of their decision in the Monthly Law
Eeporter for September,, 1857 (Common-
wealth V. Anthes, 20 Law Eeporter, 298),
as follows ; " Upon the question whether
this statute purports to change the law as
already existing and recognized in Com-
monwealth V. Porter, 10 Met. 263, the
court were equally divided. But by &
60
LAW OP BVIDBNCB.
[part n.
opinion of the jury upon them. But where the question is mixed,
consisting of law and fkct, so intimately hlended as not to be easily
majority of the court it was held, that if
such change of the law is contemplated
by the statute, the same is void." S. C. 5
Gray, 185. [ * The question of the right
of the jury to judge of the law in criminal
cases has been a good deal discussed, both
in England and America, and very different
conclusions reached by judges of nearly
equal eminence. The opinion of Hall, J.,
in State V. Croteau, supra, may be consulted
as a very fair and able exposition of the ar-
gument and authority in favor of the oppo-
site view from that maintained in the pre-
ceding portion of this note. For ourselves,
we have always been content not to raise
any such issue with the jury in criminal
cases, lest they might be thereby provoked
to abuse their just discretion in the appU-
cation of the law to the facts. Our own
views are briefly presented in State v,
McDonnell, 82 Vt. Eep. 531-533.]
The application of this doctrine to par-
ticular cases, though generally uniform, is
not perfectly so where the question is a
mixed one of law and fact. Thus the
question oi probable cause belongs to the
oourt ; but where it is a mixed question of
law and fact intimately blended, as, for
example, where the party's belief is a ma-
terial element in the question, it has been
held right to leave it to the jury, with
proper instructions as to the law. Mc-
Donald V. Rooke, 2 Bing. N. C. 217 ; Had-
drick V. Raine, 12 Ad. & El. 267, N. s.
And see Taylor v. Willans, 2 B. & Ad.
845; 6 Bing. 183; post, vol. 2, § 454.
The judge has a right to act upon all the
uncontradicted facts of the case; but
where the credibility of witnesses is in
question, or some material fact is in doubt,
or some inference is attempted to be drawn
firom some fact not distinctly sworn to,
the judge ought to submit the question to
the jury. Mitchel v. Williams', 11 M. &
W. 216, 217, per Alderson, B.
In trespass de bonis asportatis, the bona
fides of the defendant in taking the goods,
and the reasonableness of his belief that
he was executing his duty, and of his sus-
picion of the plaintiff, are .questions for
the jury. Wedge v. Berkeley, 6 Ad. & El.
663 ; Hazeldine v. Grove, 3 Ad. & El. 997,
N. 3., Hughes V. Buekland, 15 M. & W.
346. In a question of pedigree, it is for the
judge to decide whether the person
whose declarations are offered in evidence
was a member of the family, or so related
as to be entitled to be heard on such a
question. Doe v. Davies, 11 Jur. 607 ; 10
Ad. & El. 314, N. s.
The question, what are umal ccvenantsia
a deed, is a question for the jury, and not a
matter of construction for the court. Ben-
nett V. Womack, 8 C. & P. 96.
In regard to reasonableness of time, care,
skill, and the like, there seems to have
been some diversity in the application of
the principle; but it is conceded that,
" whether there has been, in any particu
lar case, reasonable dihgence used, or
whether unreasonable delay has occurred,
is a mixed question of law and fact, to be
decided by the jury, acting under the di-
rection of the judge, upon the particular
circumstances of each case." Melhsh ».
Rawdon, 9 Bmg. 416, per Tindall, C. J. ;
Nelson v. Patrick, 2 Car. & K. 641, per
Wilde, C. J. The judge is to inform the
jm-y as to the degree of dihgence, or care or
skill wMch the law demands of the party,
and what duty it devolves on him, and the
jury are to find whether that duty has been
done. Hunter «i Caldwell, 11 Jur. 770 ; 10
Ad. & El. 69, N. s. ; Burton v. Griffiths, 11
M. & W. 817 ; Eaoey v. Hurdom, 3 B. &
C. 213 ; Stewart v. Cauty, 8 M. & W. 160 ;
Parker v. Palmer, 4 B. & Aid. 387 ; Pitt
V. Shew, Id. 206; Mount v. Larldns, 8
Bing. 108 ; PhilUps v. Irving, 7 M. & Gr.
325 ; Reece v. Rigby, 4 B. & Aid. 202.
But where the duty in regard to time is
estabUshed by uniform usage, and the
rule is well known; as in the case of
notice of the dishonor of a biU or note,
where the parties live in the same town ;
or of the duty of sending such notice
by the next post, packet, or other ship;
or of the reasonable hours or business
hours of the day, within which a bill is to
be presented, or goods to be delivered, or
the like ; in such cases, the time of the
fact being proved, its reasonableness is set-
tled by the rule, and is declared by the
judge. See Story on BiUs, §§ 231-234,
838, 349 ; post, vol. 2, §§ 178, 179, 186-
188 [Watson v. Tarpley, 18 How. H. S.
5171.
Whether by the word " month," in a
contract, is meant a calendar or a lunar
mouth, is a question of law ; but whether
parties, in the partictilar case, intended to
use it in the one sense or tiie other, is a
question for the jury, upon the evidence
of circumstances in the case. Simpson v.
Margitson, 12 Jur. 155; Lang v. Gale, 1
M. & S. Ill ; Htitchinson v. Bowker, 5
M. & W. 535; Smith v. Wilson, 3 B. &
Ad. 728; Jolly v. Toung, 1 Esp. 186;
Walker v. Hunter, 2 M. Gr. & So. 324.
CHAP. I.] THE RELEVANCr OP BYIDBNCE. 61
susceptible of separate decision, it is submitted to the jury, who
are first instructed by the judge in the principles and rules of law,
by which they are to be governed in finding a verdict ; and .these
instructions they are bound to follow.^ If the genuineness of a
deed is the fact in question, the preliminary proof of its execution,
given before the judge, does not relieve the party offering it from
the necessity of proving it to the jury.^ The judge only decides
whether there is, primd facie, any reason for sending it at all to
the jury.^
§ 50. The production of evidence to the jury is governed by cer-
tain principles, which may be treated under four general heads
or rules. The first of these is, that the evidence must correspond
with the allegations, and be confined to the point in issue. The
second is, that it is sufiicient, if the substance only of the issue be
proved. The third is, that the burden of proving a proposition, or
issue, lies on the party holding the afiirmative. And th.e, fourth is,
that the best evidence of which the case, in its nature, is suscep-
tible, must always be produced. These we shall now consider in
their order.
§ 51. First. The pleadings at common law are composed of the
written allegations of the parties, terminating in a single proposi-
tion, distinctly affirmed on one side, and denied on the other, called
the issue. If it is a proposition of fact it is to be tried by the jury,
upon the evidence adduced. And it is an established rule, which
1 1 Stark. Evid. 510, 519-526; Hutch- 1845, p. 27-44. [It is the province of the
inson V. Bowker, 5 M. & W. 535 ; Wil- judge who presides at the trial to decide
liams V. Byrne, 2 N. & P. 139 ; McDonald all questions on tlie admissibihty of evi-
V. Rooke, 2 Bing. N. C. 217 ; James v. dence. It is also his province to decide
Phelps, 11 Ad. & El. 483 ; 8 P. & D. 231, any preliminary questions of fact, howev-
s. c. ; Panton v. Williams, 2 Ad. El. 169, er intricate, the solution of which may be
H. s. ; Townsend v. The State, 2 Blackf. necessary tg enable him to determine the
151 ; Montgomery v. Ohio, 11 Ohio R. other question of admissibihty. And his
424. Questions of interpretation, as well decision is conclusive, unless he saves the
as of construction of written instruments, question for revision by the fuH court, on
are for the court alone. Infi-a, § 277, note a report of the evidence, or counsel bring
(1). But wnere a doubt as to the applica- up the question on a biU of exceptions
tion of the descriptive portion of a deed to wliich contains a statement of the evi-
external objects arises from a latent ambi- dence. Gorton v. Hadsell, 9 Cush. 511 ;
guity, and is therefore to be solved by parol Bartlett v. Smith, 11 Mees. & Wels. 483.
evidence, the question of intention is ne- Thus the question whether the appUcatioB
cessarily to be determined by the jury, to a justice of the peace, under a statute.
Reed v. Proprietors of Locks, &c., 8 How. to call a meeting of the proprietors of a
S. C. R. 274 [Savignac v. Garrison, 18 lb. meeting-house, was signed by five at least
1361 of such proprietors, as preliminary to the
2 Ross V. Gotild, 5 Greenl. 204. question of the admissibility of the rec-
» The subject of tlie fimctions of the ords of such meeting, is for the judge, and
judge, as distinguished from those of the not for the jury. Gorton •-. Hadsell, tin
jury, is frilly and ably treated in an arti- supra.'\
cle in the Law Review, No. 3, for May,
vol. » 6
62 LAW OF EVIDENCE. [PAET II.
we state as the first rule, governing in the production of evi-
dence, that the evidence offered must correspond with the allegations,
and he confined to the point in issue?- This rule supposes the alle-
gations to be material and necessary. Surplusage, therefore, need
not be proved ; and the proof, if offered, is to be rejected. The
term surplusage comprehends whatever may be stricken from the
record, without destroying the plaintiff's right of action ; as if, for
example, in suing the defendant for breach of warranty upon the
sale of goods, he should set forth, not only that the goods were not
such as the defendant warranted them to be, but that the defendant
well knew that they were not.^ But it is not every immaterial or
unnecessary allegation that is surplusage ; for if the party, in stat-
ing his title, should state it with unnecessary particularity, he
must prove it as alleged. Thus, if, in justifying the taking of
cattle damage-feasant, in which case it is sufficient to allege that
they were doing damage in hia freehold, he should state a seisin in
fee, which is traversed, he must prove the seisin in fee ;^ for if this
were stricken from the declaration, the plaintiff's entire title would
be destroyed. And it appears that ui determining the question,
whether a particular averment can be rejected, regard is to be had
to the nature of the averment itself, and its connection with the
substance of the charge, or chain, rather than to its grammatical
collocation or structui-e.*
§ 51a. It is not necessary, however, that the evidence should
bear directly upon the issue. It is admissible if it tends to prove
the issue, or constitutes a link in the chain of proof; although,
alone, it might not justify a verdict in accordance with it.^ Nor is
it necessary that its relevancy should appear at the time when it is
1 See Best's Principles of Evidence, Lake v. Mumford, 4 Sm. & Harsh. 312 ;
§ 229-249. [*The reason for this rule, Belden v. Lamb, 17 Conn. 441. [»T.ira9
and the necessity for a strict adherence to v. Bullitt, 85 Penn. St. 308 ; Scliuchardt
it, are well explained and illustrated in v. Aliens, 2 Wallace, U. S. 359 ; Tucker v.
Malcomson o. Clayton, 18 Moore, P. C. Peaslee, 36 N. H. 167.] Where the plain-
C. 198-1 *'^'^ witness denied the existence of a
^ Williamson v. Allison, 2 East, 446 ; material fiict, and testified that persons
Peppin V, Solomons, 5 T. R. 496 ; Brom- connected with the plaintiff had offered
field y. Jones, 4 B. & C. 380. him money to assert its e.xistence; the
'^ Sir Francis Leke's case, Dyer, 365 ; plaintiff was. pemiitted, not only to prove
2 Saund. 206 a, note 22 ; Steplien on the fact, but to disprove the siibornation,
Pleading, 261, 262; Bristow v. Wright, on the ground that this latter fact had
Doug. 665 ; Miles v. Sheward, 8 East, 7, become material and relevant, inasmuct
8, 9 ; 1 Smith's Leading Cases, 828, note, as its truth or falsehood may fairly influ-
' 1 Stark. Evid. 386. ence the belief of the jury as to the whole
6 McAUister's case, 11 Shepl. 189 ; case. Melhuish v. Collier, 15 Ad. & El.
Haughey v. Strickler, 2 Watts & Serg. 878, n. s.
411 ; Jones v. Vanzandt, 2 McLean, 596 ;
CHAP. I.] THE RELEVANCY OP EVIDENCE. 63
offered ; it being the usual course to receive, at any proper and
convenient stage of the trial, in the discretion of the judge, any
evidence which the counsel shows will be rendered material by
other evidence, which he undertakes to produce. If it is not sub-
sequently thus connected with the issue, it is to be laid out of the
Case.i
§ 52. This rule excludes all evidence of collateral facts, or those
which are incapable of affording any reasonable presumption or
inference as to the principal fact or matter in dispute ; and the
reason is, that such evidence tends to draw away the minds of the
jurors from the point in issue, and to excite prejudice, and mislead
them ; and moreover the adverse party, having had no notice of
such a course of evidence, is not prepared to rebut it.^ Thus,
where the question between landlord and tenant was, whether the
rent was payable quarterly, or half-yearly, evidence of the mode in
which other tenants of the same landlord paid their rent was held
inadmissible.^ And where, in covenant, the issue was whether
the defendant, who was a tenant of the plaintiff, had committed
waste, evidence of bad husbandry, not amounting to waste, was
rejected.* So, where the issue was, whether the tenant had per-
mitted the premises to be out of repair, evidence of voluntary
waste was held irrelevant.^ Tliis rule was adhered to, even in the
cross-examination of witnesses ; the party not being permitted, as
will be shown hereafter,® to ask the witness a question in regard
to a matter not relevant to the issue, for the purpose of afterwards
coutradlctihgliim.'^ "
1 McAllister's case, supra ; Van Bviren apparently irrelevant, if he wiU undertake
V. Wells, 19 Wend. 203 ; Crenshaw v. afterwards to show its relevancy, by other
Davenport, 6 Ala. 390 ; Tuzzle v. Barclay, evidence. Haigh v. Belcher, 7 C. & P.-
Id. 407 ; Abney v. lOngsland, 10 Ala. 355 ; 339.
Yeatman v. Hart, 6 Humph. 375. [*In » Carter u. Pryke, Peake's Cas. 95.
Harris v. Holmes, 30 Vt. Rep. 352, the [See also Holingham v. Head, i Com. B
point is thus stated : In cases where the is- Kep. N. s. 388.]
sue is not defined, and where it is impos- * Harris v. Mantle, 3 T. E. 397. See
Bible to anticipate what questions may arise also Baleetti v. Serani, Peake's Cas. 142 ;
in the course of the trial, the rule in re- Furneaux v. Hutcliins, Cowp. 807 ; Doe
L.ird to the admissibility of testimony is, v. Sisson, 12 East, 61; Holcombe v. Hew-
i,.at it should be received if it would be son, 2 Campb. 391 ; Viney v. Baes, 1 Esp.
competent in any view of the case claimed, 292; Clothier v. Chapman, 14 East, 331,
;uid which might be thereafter taken. And note.
a new trial will not be granted on account ^ Edge t>. Pemberton, 12 M. & W. 187.
of the admission of such evidence unless ^ See infra, §§ 448, 449, 450.
it appears that the evidence so admitted ' Crowley v. Page, 7 Car. & P. 789;
was improperly applied in the decision of Harris v. Tippet, 2 Campb. 637 ; Rex v.
the case.] Watson, 2 Stark. R. 116 ; Commonwealth
2 Infra, § 448. 'But counsel may, on v. Buzzel, 16 Pick. 15^, 158; Ware _u
cross-examination, inquire as to a fact Ware, 8 Greenl. 42; [Coombs v. Win
64 LAW OF EVIDENCE. [PAET H.
§ 53. In some cases, ho-wever, evideiice has been received of
facts which happened before or after the principal transaction,
and wliicli liad no direct or apparent connection with it; and
therefore their admission might seem, at first view, to constitute
an exception to this rule. But those will be found to have been
cases, in which the knowledge or intent of the party was a material
fact, on which the evidence, apparently collateral, and foreign to
the main subject, had a direct bearing, and was therefore ad-
mitted. Thus, when the question was, whether the defendant,
being the acceptor of a bill of exchange, either knew that the
liame of the payee was fictitious, or else had given a general
authority to the drawer, to draw bills on him payable to fictitious
persons, evidence was admitted to show, that he had accepted
other bills, drawn in like manner, before it was possible to have
transmitted them from the place at which they bore date.^ So, in
an indictment for Imowingly uttering a forged document, or a
counterfeit bank-note, proof of the possession, or of the prior or
subsequent utterance of other false documents or notes, though of
a different description, is admitted, as material to the question
of guilty knowledge or intent.^ So, in actions for defamation, evi-
dence of other language, spoken or written by the defendant at
other times, is admissible under the general issue, in proof of the
spirit and intention of the party, in uttering the words or publish-
ing the libel charged ; and this, whether the language thus proved
be in itself actionable or not.^ Cases of this sort, therefore, in-
stead of being exceptions to the rule, fall strictly within it.
Chester, 39 N. H. 11. A further reason BuUard, 23 How. U. S. 172; Butler v.
may be, that the evidence, not being to a Collins, 12 Cal. 457 ; French v. White, 5
material point, cannot be the subject of Duer, 254.]
an indictment for perjury. Odiorne v. ' Pearson v. Le Maitre, 5 M. & Gr.
Winkley, 2 Gall, 51, 53. 700, 6 Scott, N. E. 607, s. c. ; EusteU v.
1 Gibson v. Hunter, 2 H. Bl. 288 ; Mi- Macquister, 1 Campb. 49, n. ; Saunders
net V. Gibson, 3 T. E. 481 ; 1 H. Bl. 569. v. Mills,"6 Bing. 218 ; VTarwick v. Foulkes,
2 Rex V. "Wylie, 1 New Rep. 92, 94. 12 M. & "W. 507 ; Long v. Barrett, 7 Ir.
See other examples in McKenney v. Ding- Law R. 439 ; 8 Ir. Law R. 331, s. c. on
ley, 5 Greenl. 172 ; Bridge «. Eggleston, error ; [post, vol. 2, § 418 ; 2 Starkie on
14 Mass. 245 ; Rex v. Ball, 1 Campb. 324 ; Slander, 53-57. So for the purpose of
Eex V. Roberts, 1 Campb. 399 ; Rex v. proving that a conveyance of property
Houghton, Russ. & Ry. 130 ; Rex v. Smith, made by a bankrupt was fradulent under
4 C. & P. 411 ; Eickraan's case, 2 East, P. the United States Bankrupt Act of 1841,
C. 1035; Robinson's case. Id. 1110, 1112; because made to defraud the plaintiff of
Eex V. Northampton, 2 M. & S. 262; his debt, evidence is admissible tending
Commonwealth v. Turner, 3 Met. R. 19. to show that the defendant entertained
See also Bottomley'u. United States, 1 such fraudulent intent even before the
Story, E. 143, 144, where this doctrine is passage of said bankrupt act. Bigelow,
clearly expounded by Story, J. ; Pierce v. J., in dehvering the opinion of the court,
Hoffman, 24 Vermont, 525. [* Castle v. said: "The inquiry before the jury in-
CHAP. I.J
THE EELEVANCY OF EVIDENCE.
65
§ 53a. In proof of the ownership of lands, by acts of possession,
the same latitude is allowed. It is impossible, as has been ob-
served, to confine the evidence to the precise spot on which a sup-
posed trespass was commited ; evidence may be given of acts done
on other parts, provided there is such a common character of local-
ity between those parts and the spot in question, as would raise a
reasonable inference in the minds of the jury that the place in
dispute belonged to the party, if the other parts did. The evidence
of such acts is admissible proprio vigore, as tending to prove that
he who did them is the owner of the soil ; though if they were
done in the absence of all persons interested to dispute them, they
are of less weight.^
§ 54. To this rule may be referred the admissibility of evidence
of the general character of the parties.^ In civil cases, such evi-
dence is not admitted, unless the nature of the action involves the
general character of the party, or goes directly to affect it.^ Thus,
volved two essential elements. One was
the establishment of a fraudulent design
on the part of the defendant towards his
creditors ; the other was the carrying-out
and fulfilment of that design through the
instrumentality of the bankrupt act. To
maintain the first of these propositions, as
one link in the chain of evidence, proof
of an intent, prior to the passage of the
bankrupt act, to defraud the plaintiff of
his debt by a fraudulent concealment and
conveyance of his property, was clearly
competent. "Whenever the intent of a
party forms part of the matter in issue,
upon the pleadings, evidence may be giv-
en of other acts, not in issue, provided
they tend to estahUsh the intent of the
party in doing the acts in question. Rose.
Grim. Ev. {3d Am. ed.) 99. The reason
for this rule is obvious. The only mode
of showing a present intent is often to be
found in proof of a like intent previously
entertained. The existence in the mind
of a deliberate design to do a certain act,
when once proved, may properly lead to
the inference that the intent once harbored
continued and was carried into effect by
acts long subsequent to the origin of the
motive by which they were prompted.
Even in criminal cases, acts and declara-
tions of a party made at a former time are
admissible to prove the intent of the same
person at the time of the commission of
an offence. 2 Pliil. Ev. {3d ed.) 498;
Rose. Grim. Ev. (3d Amer. ed.) 95. In
the proof of cases Involving the motives
of men as influencing and giving character
to their acts, it is impossible to confine the
evidence within any precise limit. It
must necessarily proceed by steps or
stages leading to the main point in issue.
In the case at bar, when the plaintiff had
proved an intent on the part of the defend-
ant to conceal his property, for the pur-
pose of defrauding his creditors, anterior
to the passage of the bankrupt act, he had
advanced one step towards the proof of
the real issue before the jury, and if he
satisfied the jury that tliis intent once
harbored continued in the mind of the
defendant, and was carried out by availing
himself of the provisions of the bankrupt
act, he had thus proved by a legitimate
chain of evidence the matter set up in his
specification as a ground for invafidating
the defendant's discharge in bankruptcy.'
Cook z). Moore, 11 Gush. 216-217.] [*The
party to a suit, if admissible as a witness,
may testify to liis motive in doing an act,
if that become material. Wheelden v
Wilson, 44 Me. ].]
1 Jones V. Williams, 2 M. & W. 326,
per Parke, B. And see Doe v. Kemp, 7
Bing. 332; 2 Bing. IS. C. 102; [* Simp-
son V. Dendy, 36 Eng. L. & Eq. 366].
2 [Commonwealth v. Webster, 5 Gush.
324, 325. See as to character of witnesses,
post, § 469.]
'^ Attorney-General v. Bowman, 2 B.
& P. 532, expressly adopted in Fowler v.
JEtna Fire Ins. Co., 6 Cowen, 673, 675
Anderson v. Long, 10 S. & R. 55 ; Hum-
phrey V. Humphrey, 7 Gonn. 116 ; Nash
V. Gilkeson, 4 S. & R. 352; Jeffries v.
Harris, 3 Hawks, 105 ; [fratt v. Andrews,
4 Comst. 493 ; Porter v. Seller, 23 Penn.
6»
66
LAW OP EVIDENCE.
[part II.
evidence impeacliing the previous general character of the wife or
daughter, in regard to cliastity, is admissible in an action by the
husband or father for seduction ; and this, again, may be rebutted
by counter proof.^ But such evidence, referring to a time subse-
quent to the act complained of, is rejected.^ And generally, in
actions of tort, wherever the defendant is charged with fraud from
mere circumstances, evidence of his general good character is
admissible to repel it.^ So, also, in criminal prosecutions, the
St. E. 424; see also 24 lb. 401, 408;
Goldsmith v. Picard, 27 Ala. 142 ; Lander
,. Seaver, 32 Vt. 114.1
1 Bate V. Hill, 1 C. & P. 100 ; Verry v.
Watkius, 7 C. & P. 808; Carpenter v.
Wahl, 11 Ad. & El. 803 ; 3 P. & D. 457,
8. c. ; Elsara v. Paucett, 2 Esp. 562; Dodd
V. Norris, 3 Campb. 519. See contra, Mc-
Rea V. LiUy, 1 Iredell, R. 118.
2 Elsam V. Eaucett, 2 Esp. 562 ; Coote
V. Berty, 12 Mod. 232. The rule is the
same in an action by a woman, for a breach
of a promise of marriage. See Johnson v.
Caulkins, 1 Johns. Cas. 116 ; Boynton v.
Kellogg, 3 Mass. 189 ; Eoulkes o. Sellway,
3 Esp. 236 ; Bamfield v. Massey, 1 Campb.
460 ; Dodd o. Norris, 3 Campb. 519.
^ Ruan V. Perry, 3 Caines, 120. See
also Walker v. Stephenson, 3 Esp. 284.
This case of Ruan v. Perry has some-
times been mentioned with disapproba^
tion; but, when correctly understood, it
is conceiTed to be not opposed to the well-
settled rule, that evidence of general char-
acter is admissible only in cases where it
is involved in the issue. In that case the
commander of a national frigate was sued
in trespass, for seizing and detaining the
plaintiif's vessel, and taking her out of her
course, by means whereof she was cap-
tured by an enemy. The facts were clear-
ly proved ; but the question was, whether
the defendant acted in honest obedience
to his instructions from the Navy Depart>-
ment, which were in the case, or with a
fraudulent intent, and in collusion with the
captors, as the plaintiff alleged to the
jury, and attempted to sustain by some of
the circumstances proved. It was to re-
pel this imputation of fraudulent intent,
inferred from slight circumstances, that
the defendant was permitted to appeal to
his own "fair and good reputation." And
in confirming this decision in bank, it was
observed, that " In actions of tort, and es-
pecially charging a defendant with gross
depravity and fraud, upon circumstances
merely, evidence of uniform integi-ity and
good character is oftentimes tlie only tes-
timony which a defendant can oppose to
Buspicious circumstances." On this ground
this case was recognized by the court as
good law, in Eowler v. JEtna Fire Ins. Co.
6 Cowen, 675. And five years afterwards,
in Townsend v. Graves, 3 Paige, 455, 456,
it was again cited with approbation by
Chancellor Walworth, who laid it down as
a general rule of evidence, " that if a par-
ty is charged with a crime, or any other
act involving moral tui-pitude, which is
endeavored to be fastened upon him by cir-
cumstantial evidence, or by the testimony
of witnesses of doubtful credit, he may in-
troduce proof of his former good charac-
ter for honesty and integrity, to rebut the
presumption of guilt arising from such
evidence, which it may be impossible for
him to contradict or explain." In Gough
V. St. John, 16 Wend. 646, the defendant
was sued in an action on the case, for a
false representation as to the solvency of
a third person. The representation itself
was in writing, and verbal testimony was
ofiered, tending to show that the defend-
ant knew it to be false. To rebut this
charge, proof that the defendant sustained
a good character for honesty and fairness
in dealing, was offered and admitted.
Cowen, J., held, that the fraudulent intent
was a necessary inference of law from the
falsity of the representation ; and that tlie
evidence of character was improperly ad-
mitted. He proceeded to cite and con-
demn the case of Ruan v. Perry, as favor-
ing the general admissibiUty of evidence
of character in civil actions, for injuries
to property. But such is manifestly not
the doctrine of that case. It only decides,
that where intention (not knowledge) is the
point in issue, and the proof consists of
slight circumstances, evidence of character
is admissible. The other judges agreed
that the evidence was improperly admit
ted in that ease, but said notliing as to the
case of Ruan v. Perry. They denied,
however, that fraud was in such cases an
inference of law.
The ground on which evidence of good
character is admitted in criminal proseeu
tions is this, that tlie intent with which the
act, charged as a crime, was done, is of
the essence of the issue ; agreeably to me
CHAP. I.J THE RELEVANCY OP EVIDENCE. 67
charge of a rape, or of an assault with intent to commit a rape, is
considered as involving not only the general character of the
prosecutrix for chastity, but the particular fact of her previous
criminal connection with the prisoner, though not with other per-
sons.i And in all cases, where evidence is admitted touching the
general character of the party, it ought manifestly to bear refer-
ence to the nature of the charge against him.^
§ 55. It is not every allegation of fraud that may be said to put
the character in issue ; for, if it were so, the defendant's character
would be put in issue in the ordinary form of declaring in assump-
sit. This expression is technical, and confined to certain actions,
from the nature of which, as in the preceding instances, the
character of the parties, or some of them, is of particular impor-
tance. This kind of evidence is therefore rejected, wherever the
general character is involved by the plea only, and not by the
nature of the action.^ Nor is it received in actions of assault and
battery ; * nor in assumpsit ; ^ nor in trespass on the case for mali-
cious prosecution ; ^ nor in an information for a penalty for violation
of the civil, police, or revenue laws ; "^ nor in ejectment, brought
in order to set aside a will for fraud committed by the defendant.^
Whether evidence impeaching the plaintiff's previous general
maxim, "Nemo reus est, nisi mens sit rea;" Potter ti. "Webb ei aZ. 6 Greenl. 14; Greg-
and the prevailing character of the party's ory v. Thomas, 2 Bibb, 286.
mind, as evinced by the previous habit of * Givens v. Bradley, 3 Bibb, 192. But
liis lite, is a material element in discover- in the Admiralty Courts, where a seaman
ing that intent in the instance in question, sues against the master for damages, for
Upon the same principle, the same evi- illegal and unjustifiable punishment, his
dence ought to be admitted in all other general conduct and character during the
cases, whatever be the form of proceeding, voyage are involved in the issue. Pettin-
where the intent is material to be found gill v. Dinsmore, Daveis, K. 208, 214.
as a fact involved in the issue. ^ Nash v. Gilkeson, 5 S. & E. 352.
1 Rex V. Clarke, 2 Stark. 241 ; 1 Phil. ^ Gregory v. Thomas, 2 Bibb, 286.
& Am. on Evid. 490 ; Low v. Mitchell, 6 ' Attorney-General v. Bowman, 2 B. &
Shepl. 372 ; Commonwealth v. Murphy, P. 532, note.
14 Mass. 387 ; 2 Stark. Evid. (by Met- » Goodright v. Hicks, Bull. N. P. 296.
calf) 369, note (1); Eex v. Martin, 6 P. [Nor is the character of the plaintiflF in-
& C. 562 ; Rex v. Hodson, Russ. & Ry. volved in the issue, where the action is on
211 ; Regina v. Clay, 5 Cox, Cr. C. 146. a policy of insurance against loss by fire.
But in an action on the case for seduction, and the defence is that the fire was occa-
evidence of particular acts of unchastity sioned by the wilful and fraudulent act of
with other persons is admissible. Verry the plaintiff. The nature of the action
V. Watkins, 7 C. & P. 308. Where one is excludes all such inquiry or evidence in
charged with keeping a house of iU fame relation thereto. Schmidt v. New York,
o/Jer the statute went into operation, evi- &c., Ins. Co. 1 Gray, 529, 535 ; nor in an
dence of the bad reputation of the house action for commencing a suit against the
before that time, was held admissible, as plaintifi" without authority, where the
conducing to prove that it sustained the plaintiff at the trial gives notice that he
same reputation afterwards. Caflwell v. shall claim no damages for special injury
The State, 17 Conn. R. 4G7. to his character by reason of the suit
2 Douglass V. Tousey, 2 Wend 352. Smith v. Hyndman, 10 Cush 554.]
' Anderson v. Long, 10 S. & IJ 6E
68
LAW OP EVIDENCE.
[part II,
character is admissible in an action of slander, as affecting the
question of damages, is a point which has been much controverted ;
but the weight of authority is in favor of -admiting such evidence.^
But it seems that the character of the party, in regard to any
particular trait, is not in issue, unless it be the trait which is
involved in the matter charged against him ; and of this it is only
evidence of general reputation, which is to be admitted, and not
positive evidence of general bad conduct?
1 2 StarMe on Slander, 88, 89-95, note ;
Root V. King, 7 Cowen, 613 ; Bailey v.
Hyde, 3 Conn. 463 ; Bennett v. Hyde, 6
Conn. 24 ; Douglass v. Tousey, 2 "Wend.
353; Innian v. Foster, 8 Wend. 602;
Lamed v. Buffington, 3 Mass. 552 ; Wal-
cott V. Hall, 6 Mass. 514 ; Ross v. Lapham,
14 Mass. 275 ; BodweU v. Swan, 3 Pick.
378 ; Buford v. McLxmy, 1 Nott & Mc-
Cord, 268; Sawyer v. Eifert, 2 Nott &
McCord, 511 ; ICing v. Waring et ux. 5
Esp. 14 ; Rodriguez v. Tadmire, 2 Esp.
721; V. Moore, 1 M. & S. 284;
Earl of Leicester v. Walter, 2 Campb.
251 ; Williams v. Callendar, Holt's Cas.
307; 2 Stark. Evid. 216. In Foot v.
Tracy, 1 Johns. 45, the Supreme Court of
New York was equally divided upon this
question ; Kent and Thompson, Js., being
in favor of admitting the evidence, and
Livingston and Tompkins, Js., against it.
[In a later case, Springstein u. Field, An-
thon, 185, Spencer, J., said he had no
doubt abont the admissibiUfy of the evi-
dence offered in the case of Foot v. Tracy,
but for particular reasons connected with
that case, he forbore to express any opin-
ion on the hearing of the same. In Pad-
dock V. Salisbury, 2 Cowen, 811, the ques-
tion came again before the Supreme Court
of New York, and the evidence was ad-
mitted in mitigation of damages, under
the general issue, which was the only
plea in that case.] In England, according
to the later authorities, evidence of the gen-
eral bad character of the plaintiff seems
to be regarded as irrelevant, and there-
fore inadmissible. Phil. & Am. on Evid.
488, 489 ; Cornwall v. Richardson, Ry. &
Mood. 305; Jones v. Stevens, 11 Price, 235.
In this last case it is observable, that
though the reasoning of the learned
judges, and especially of Wood, B., goes
against the admission of the evidence,
even lliough it be of the most general na-
ture, in any case, yet the record belore
the court contained a plea of justification
aspersing the professional character of the
plaintiff in general averments, without
stating any particular acts of bad con-
duct ; and the point was, whether, in sup-
port of this plea, as well as in contradic-
tion of the declaration, the defendant
should give evidence that the plaintiff was
of general bad character and repute, in
his practice and business of an attorney.
The court strongly condemned the plead-
ing as reprehensible, and said that it ought
to have been demurred to, as due to the
court, and to the judge who tried the
cause. See J' Anson v. Stuart, 1 T. R.
747; 2 Smith's Leading Cases, 37. See
also Rhodes v. Bunch, 3 McCord, 66. In
WiUiston v. Smith, 3 Kerr, 443, which
was an action for slander by charging the
defendant with larceny, the defendant, in
mitigation of damages, offered evidence of
the plaintiff's qeneral bad character ; which
the judge at Nisi Priiis rejected; and the
court held the rejection proper ; observ-
ing, that had the evidence been to the
plaintiff's general character for honesty, it
might have been admitted. [See post, vol.
2, § 424.]
2 Swift's Evid. 140 ; Ross v. Lapham,
14 Mass. 275; Douglass v. Tousey, 2
Wend. 352 ; Andrews v. Vanduzer, 11
Johns. 38 ; Root v. King, 7 Cowen, 613 ;
Newsam v. Carr, 2 Stark. 69 ; Sawyer v.
Eifert, 2 Nott & McCord, 911 [Stone v.
Varney, 7 Met. 86 ; Leonard v. Allen, 11
Cush. 241, 245 ; Watson v. Moore, 2 lb.
133; Orcutt v. Ranney, 10 lb. 183].
[ * 'The best evidence of good character
seems to be that the witness, if thoroughly
conversant with the history of the party
for years, never heard any question raised
in regard to it. Gandolfo v. State, 11
Ohio, N. s. 114.]
CHAP II.] THE SUBSTANCE OP THE ISSUE.
CHAPTER II.
OP THE SUBSTANCE OF THE ISSUE.
[ * § (56. Sufficient to prove substance of issue, unless in matters of description.
57. How far an allegation is descriptive, depends upon its form and subject-matter
68. Allegations as to contracts, prescriptions, and character, held descriptive.
69. Traverse, modo et forma only puts in issue the substance of the averments.
60. Allegation, with or without videlicet, will not generally affect the proof, but
sometimes it will.
61. Allegations of time, place, quantity, quality, value, and in aggravation of dam-
ages, not material to be strictly proved, unless descriptive.
62. In local actions, place material, and so of the kind, and boundaries, of land.
63. Variance consists in a departure from legal proof.
&i. Circumstantial averment not required to be proved, unless requisite to identity.
65. The same latitude in proving only the substance of the issue, in criminal as
in civil cases.
66. SUght variances in description of contracts often material.
67. Distinction between redundancy of allegation, and of proof.
68. Consideration must be laid fully, and proved as laid.
69. Description of deeds must be accurate ; may be by import ; on oyer muo '■ be
precisely accurate.
70. Records, as inducement, must be substantially proved ; but strictly, if it be
the gi'ound of action.
71. Prescriptive grants and rights must be strictly proved.
72. Less strictness required in proof of prescriptions upon which the action is
founded. Excess of proof will not vitiate.
73. Most questions of variances may be relieved by amendment]
§ 56. A SECOND RULE, which governs in the production of evi-
dence, is that it is sufficient, if the substance of the issue he proved.
In the application of tliis rule, a distinction is made between
allegations of matter of substance, and allegations of natter of
essential description. The former may he substantially prove 1 ; but
the latter must be proved with a degree of strictness, exiendng h\
some cases even to literal precision. No allegation, descriptive oi
the identity of that which is legally essential to the claim or charge,
can ever be rejected. ^ Thus in an action of malicious pros ecution,
1 Stark. Evid. 373 ; Purcell v. Macua- 456 ; Ferguson v. Harwood, 7 Crajich,
mara, 9 East, 160 ; Stoddard v. Palmer, 3 408, 413 \post, vol. 2, § 2-11].
B. & C. 4; Turner v. Eyles, 3 B. & P
70 LAW OF EVIDENCE. [PAKT II.
the plaintiif alleges that he was acquitted of the charge on a
certain day ; here the substance of the allegation is the acquittal,
and it is sufficient, if this fact be proved on any day, the time not
being material. But if the allegation be, that the defendant drew
a hill of exchange of a certain date and tenor, here every allegation,
even to the precise day of the date, is descriptive of the bill, and
essential to its identity, and must be literally proved.^ So also, as
we have already seen, in justifying the taking of cattle damage-
feasant, because it was upon the close of the defendant, the alle-
gation of a general freehold title is sufficient ; but if the party
states, that he was seised of the close in fee, and it be traversed,
the precise estate, which he has set forth, becomes an essentially
descriptive allegation, and must be proved as alleged. In this
case the essential and non-essential parts of the statement are so
connected, as to be incapable of separation, and therefore both are
alike material.^
§ 57. "Whether an allegation is or is not so essentially descrip-
tive, is a point to be determined by the judge in the case before
him ; and it depends so much on the particular circuxnstances,
that it is difficult to lay down any precise rules by which it can
in all cases be determined. It may depend, in the first place,
on ^lie nature of the averment itself, and the subject to which
it is applied. But secondly, some averments the law pronounces
formal, which otherwise, would, on general prmciples, be descrip-
tive. And thirdly, the question, whether others are descriptive
or not, will often depend on the technical manner in which they are
framed.
§ 68. In the^rs^ place, it may be observed, that any allegation,
which narrows and limits that, which is essential, is necessarily
descriptive. Thus, in contracts, libels in writing, and written instru-
ments in general, every part operates by way of description of the
whole. It these cases, therefore, allegations of names, sums,
mag-.itries, dates, durations, terms, and the like, being essential
to tlio identity of the writing set forth, must, in general, be
' 3 B. & C. 4, 5 ; Glassford on Evid. v. Palmer, 3 B. & C. 4, wiU, on closer ex-
S09. amination, result merely in tliis, that mat-
2 Stephen on Pleading, 261, 262, 419; tersof description are matters of substance,
Turner v. IJyles, 3 B. c& P. 456 ; 2 Saund. when they go to the identity of any thing
206 a, n. 22 ; Sir Francis Leke's case, material to the action. Thus the rule wifl
Dyer, 364 h. Perhaps the distinction tak- stand, as originally stated, that the sub-
en by Lord EUenborough, in Purcell v. stance, and tliis alone, must be proved.
Macnamai-a. and recognized in Stoddard
CHAP. II.] THE SUBSTANCE OP THE ISSUE. 71
precisely proved.^ Nor is it material whether the action be founded
in contract or in tort ; for in either case, if a contract be set forth,
every allegation is descriptive. Thus, in an action on the case
for deceit in the sale of lambs by two defendants, jointly, proof
of sale and warranty by one only, as his separate, property, was
hold to be a fatal variance.^ So, also, if the contract described be
absolute, but the contract proved be conditional, or in the alternar
tive, it is fatal.^ The consideration is equally descriptive and
material, and must be strictly proved as alleged.* Prescriptions,
also, being founded in grants presumed to be lost from lapse of
time, must be strictly proved as laid ; for every allegation, as it is
supposed to set forth that which was originally contained in a deed,
is of course descriptive of the instrument, and essential to the
identity of the grant.^ An allegation of the character in which
the plaintiff sues, or of his title to damages, though sometimes
superfluous, is generally descriptive in its nature, and requires
proof.®
§ 59. Secondly, as to those averments which the law pronounces
formal, though, on general principles, they seem to be descriptive
and essential ; these are rather to be regarded as exceptions to the
rule already stated, and are allowed for the sake of convenience.
Therefore, thougli it is the nature of a traverse to deny the alle-
gation in the manner and form in which it is made, and, consequently
to put the party to prove it to be true in the manner and form, as
well as in general effect ; "^ yet where the issue goes to the point of
the action, these words, mode et formd, are but words of form.^
Thus, in trover, for example, the allegation, that the plaintiff lost
the goods and that the defendant found them is regarded as
1 Bristow V. Wriglit, Doug. 665, 667 ; Robertson v. Lynch, 18 Johns. 451 ; {post,
Churchill v. WilMns, 1 T. E. 447 ; 1 Stark. § 68] .
Evid. 386, 388. ^ Morewood v. "Wood, 4 T. R. 157 ;
2 Weal V. King, etal. 12 East, 452. Rogers v. AUen, 1 Campb. 309, 314, 315,
' Penny tj. Porter, 2 East, 2 ; Lopez u. note (a). But proof of a more ample
De Tastet, 1 B. & B. 538; Higgins v. right than is alleged, will be regarded as
Dixon, 10 Jur. 376 ; Hilt v. Campbell, 6 mere redundancy. Johnson v. Thorough-
Greenl. 109; Stone «. Knowlton, 3 Wend, good. Hob. 64; Bushwood v. Pond, Cro.
374. See also Saxton v. Johnson, 10 El. 722 ; Bailiffs of Tewksbury v. Brick-
Johns. 581; Snell v. Moses, 1 Johns. 96; nell, 1 Taunt. 142; Burges v. Steer, 1
Crawford v. Morrell, 8 Johns. 153; Bay- Show, 347; 4 Mod. 89, s. o. [post, § 71].
lies V. Fettyplaoe, 7 Mass. 325 ; Robbins ^ 1 Stark. Evid. 390 ; Moises v. Thorn-
V. Otis, 1 Pick. 368 ; Harris v. Raynor, ton, 8 T. R. 303, 308 ; Berryman v. Wise,
8 Pick. 541 ; White v. Wilson, 2 Bos. & 4 T. R. 366.
Pul. 116 ; Whitaker v. Smith, 4 Pick. ' Stephen on Pleading, 213.
83; Lower v. Winters, 7 Cowen, 263; ^ Xrials per pais, 308 (0th ed.); Co.
Alexander v. Harris, 4 Cranch, 299. Lit. 281 b.
* SaUow V. Beaumont, 2 B. & Aid. 765 ;
72 LAW OF EVIDENCE. [PAET II.
purely formal, requiring no proof; for the gist of the action is
the conversion; So, in indictments for homicide, though the death
is alleged to have been caused by a particular instrument, tHs
averment is but formal ; and it is sufficient if the manner of death
agree in substance with that which is charged, though the instru-
ment be different ; as, if a wound alleged to have been given with
a sword, be proved to have been inflicted with an axe.^ But,
where the traverse is of a collateral point in pleading, there the
words, modo et formd, go to the substance of the issue, and are
descriptive, and strict proof is required; as, if a feoffment is
alleged by deed, which is traversed modo et formd, evidence of
a feoffment without deed will not suffice.^ Yet, if in issues upon
a collateral point, where the affirmative is on the defendant,
partial and defective proof on his part should show that the
plaintiff had no cause of action, as clearly as strict and full proof
would do, it is sufficient.^
§ 60. Thirdly, as to those averments, whose character, as being
descriptive or not, depends on the manner in which they are stated.
Every allegation, essential to the issue, must, as we have seen, be
proved, in whatever form it be stated ; and things immaterial in
their nature to the question at issue may be omitted in the proof,
tiiough alleged with the utmost explicitness and formality. There
is, however, a middle class of circumstances, not essential in their
nature, which may" become so by being inseparably connected
with the essential allegations. These must be proved as laid,
unless they are stated under a videlicet ; the office of which is to
mark, that the party does not undertake to prove the precise
circumstances alleged ; and in such cases he is ordinarily not
holden to prove them.* Thus in a declaration upon a bill of
exchange, the date is in its nature essential to the identity of the
bill, and must be precisely proved, though the form of allegation
were, " of a certain date, to wit," stich a date. On the other
liaud, in the case before cited, of an action for maliciously prose-
cuting the plaintiff for a crime, whereof he was acquitted on
a certain day ; the time of acquittal is not essential to tlie charge,
1 2 Russell on Crimes, 711 ; 1 East, P. » Ibid. ; 2 Stark. Et. 394.
C. 3il. * Stephen on Pleading, 309 ; 1 Chitty
2 Bull. N. P. 301; Co. Lit. 281, B. on PI. 261, 262, 348 (6tli ed.); Stukeleyw.
Whether virtute cujus, in a sheriff's plea in Butler, Hob. 168, 172 ; 2 Saund. 291, not«
justification, is ti-aversable, and in what (1) ; Gleason u. McVickar, 7 Cowen, 42,
cases, is discussed in Lucas v. Nockells, 7
Bligh, N. s. 140.
CHAP. II.] fHE SUBSTANCE OF THE ISSUE. 73
and need not be proved, though it be directly and expressly
alleged.! But where, in an action for breach of warranty upon
the sale of personal chattels, the plaintiff set forth the price paid
for the goods, without a videlicet, he was held bound to prove the
exact sum alleged, it being rendered material by the form of
allegation ; ^ though, had the averment been, that the sale was for
a valuable consideration, to wit, for so much, it would have been
otherwise. A videlicet will not avoid a variance, or dispense with
exact proof, in an allegation of material matter ; nor will the
omission of it always create the necessity of proving, precisely as
stated, matter which would not otherwise require exact proof.
But a party may, in certain cases, impose upon himself the
necessity of proving precisely what is stated, if not stated under
a videlicet.^
§ 61. But, in general, the allegations of time, place, quantity,
quality, and value, when not descriptive of the identity of the sub-
ject of the action, will be found immaterial, and need not be
proved strictly as alleged. Thus, in trespass to the person, the
material fact is the assault and battery ; the time and place not
being material, unless made so by the nature of the justification,
and the manner of pleading. And, in an action on a policy of
1 Supra, § 56 ; Purcell v. Macnamara, ton v. Holland, 17 Johns. 92 ; Twiss v,
9 East, 160; Gwinnett v. Phillips, 3 T. R. Baldwin, 9 Conn. 292. So, where the ac-
643 ; Vail v. Lewis, 4 Johns. 450. tion was for an injury to the plaintiff's re
2 Durston v. Tuthan, cited in 3 T. R. versionary interest in land, and it was
67 ; Symmons v. Knox, 3 T. R. 65 ; Am- alleged, that the close at the time of the
field V. Bates, 8 M. & S. 173; Sir Francis injury, was, and " continually from thence
Leke's case, Dyer, 364 A; Stephen on hitherto hath been, and still' is," in the
Pleading, 419, 420; 1 Chitty on PI. 340 possession of one J. V., this latter part of
(6th ed). the averment was held superfluous, and
^ Crispin v. Williamson, 8 Taunt. 107, not necessary to be proved. Vowels v.
112 ; Attorney-Gen. v. Jeffreys, M'Cl. R. Miller, 3 Tamit. 137. But if, in an action
277 ; 2 B. & C. 3, 4 ; 1 Chitty on Plead, by a lessor against his tenant, for negli
348 a ; Grimwood v. Barrett, 6 T. R. 460, gently keeping his fire, a demise for seven
463 ; ISristow v. Wright, Doug. 667, 668. years be alleged, and the proof be of a lease
These terms, " immaterial," and " imper- at will only, it will be a fatal variance ; for
tinent," though formerly applied to two though it would have sufficed to have al-
classes of averments, are now treated as leged the tenancy generally, yet having
synonymous ; 3 D. & R. 209 ; the more unnecessarily qualified it, by stating the
accurate distinction being between these, precise term, it must be proved as laid,
and unnecessari/ aUegations. Immaterial or Cudlip v. Rundle, Carth. 202. So, in
Impertinent averments are those which debt against an oflicer for extorting ille-
need neither be alleged nor proved if al- gal fees on a Jieri facias, though it is sxif-
leged. Unnecessary averments consist of fieient to allege the issuing of the writ of
matters which need not be alleged ; but, Jieri facias, yet if tlie plaintiff also un-
being alleged, must be proved. Thus, in necessarily allege the judgment on which
an action of assumpsit upon a warranty it was founded, he must prove it, having
on the sale of goods, an allegation of de- made it descriptive of the principal thing,
ceit on tli(! part of tlie seller is imperti- Savage v. Smith, 2 W. Bl. 1101 ; Bristow
nent, and need not be proved. Wil- v. Wright, Doug. 668 ; Gould's PI. 160-
Uamson v. Allison, 2 East, 416 : Pan- 165 ; Draper v. Garratt, 2 B. &■. C. 2.
VOL. I. 7
74 LAW OP UVIDENCB. [PART II.
insurance, the material allegation is the loss ; but whether total
or partial is not material ; and if the former be alleged, proof of
the latter is suflicient. So in assumpsit, an allegation, that a bill
of exchange was made on a certain day, is not descriptive, and
therefore strict proof, according to the precise day laid, is not
necessary ; though, if it were stated, that the biU lore date on that
day, it would be otherwise.^ Thus, also, proof of cutting the pre-
cise number of trees alleged to have been cut, in trespass ; or, of
the exact amount of rent alleged to be in arrear in replevin ; or
the precise value of the goods taken, in trespass or trover, is not
necessary.^ Neither is matter of aggravation, namely, that whia
only tends to increase the damages, and does not concern the
right of action itself, of the substance of the issue. But, if the
matter, alleged by way of aggravation, is essential to the support
of the charge or claim, it rdust be proved as laid.
§ 62. But in local actions the allegation of place is material and
must strictly be proved, if put in issue. In real actions, also, the
statement of quality, as arable or pasture land, is generally
descriptive, if not controlled by some other and more specific
designation. And in these actions, as well as in those for injuries
to real property, the abuttals of the close in question must be
proved as laid ; for if one may be rejected, all may be equally
disregarded, and the identity of the subject be lost.^
§ 63. It being necessary to prove the substance of the issue, it
follows, that any departure from the substance, in the evidence
adduced, must be fatal; constituling what is termed in the law
a variance. This may be defined to be a disagreement between
the allegation and the proof, in some matter, which, in point of law,
is essential to the charge or claim.* It is the legal, and not the
natural identity, which is regarded ; consisting of those particidars
only, which are in their nature essential to the action, or to the
justification, or have become so by being inseparably connected, by
the mode of statement, with that which is essential ; of which an
example has already been given,^ in the allegation of an estate in
fee, when a general averment of freehold would sufiice. It is
1 Gardiner v. Croadales, 2 Burr. 904 ; 2 East, 497, 502 ; BuU. N. P. 89 ; Vowels
Coxon V. Lyon, 2 Campb. 307, n. v. Miller, 3 Taunt. 139, per Lawrence, J. ;
^ Harrison v. Barnby, 5 T. E. 248 ; Co. Eegina v. Cranage, 1 Salk. 385. [See
Lit. 282 a ; Stephen on Pleading, 318 ; post, vol. 2, § 618 a.]
Hutcliins V. Adams, 3 Greenleaf, 174. * Stephen on PI. 107, 108.
8 Mersey & Irwell Nav. Co. v. Douglas, ^ Supra, § 61-56.
CHAP. II.] THE SUBSTANCE OP THE ISSUE. 75
necessary, therefore, in these cases, first to ascertain what are the
essential elements of the legal proposition in controversy, taking
care to include all, which is indispensable to show the right of the
plaintiff, or party afiirming. The rule is, that whatever cannot
be stricken out without getting rid of a part essential to the cause
of action, must be retained, and of course must be proved, even
though it be described with unnecessary particularity.'' The de-
fendant is entitled to the benefit of tliis rule, to protect himself
by the verdict and judgment' if the same rights should come again
in controversy. The rule, as before remarked, does not generally
apply to allegations of number, magnitude, quantity, value, time,
sums of money, and the like, provided the proof in regard to these
is sufficient to constitute the offence charged, or to substantiate
the claim set up ; except in those cases where they operate by way
of limitation, or description of other matters, in themselves
essential to the offence or claim.^
§ 64. A few examples will suffice to illustrate tliis subject.
Thus, in tort, for removing earth from the defendant's land,
whereby the foundation of the plaintiff's house was injured, the
allegation of bad intent in the defendant is not necessary to be
proved, for the cause of action is perfect, independent of the
intention.^ So, in trespass, for driving against the plaintiff's
cart, the allegation, that he was in the cart, need not be proved.*
But, if the allegation contains matter of description, and is not
proved as laid, it is a variance, and is fatal. Thus, in an action
' Bristow V. Wriglit, Doug. 668 ; Pep- charge for perjury, where the plaintiff al-
pin V. Solomons, 5 T. R. 496; "William- leged, by way of inducement, that he was
son D. AUison, 2 East, 446, 452. sworn before the Lord Mayor. Stephen on
2 Supra, § 61 ; Rickets v. Salwey, 2 B. Pleading, 258. The question whether an
& Aid. 363 ; May v. Brown, 3 B. c& C. 118, allegation must be proved, or not, turns
122. It has been said, that allegations, upon its materiality to the case, and not up-
wliich are merely matters of inducement, do on the form in which it is stated, or its place
not require such strict proof, as those in the declaration. In general, every aUe-
which are xwecisely put in issue between gation in an inducement, which is materi-
the parties. Smith v. Taylor, 1 New Rep. al, and not impertinent, and foreign to the
210, per Charabre, J. But tliis distinction case, and wliich consequently cannot be
as Mr. Starkie justly observes, between rejected as surplusage, must be proved as
tliat which is the gist of the action, and alleged. 1 Chitty on PI. 262, 320. It is
that which is inducement, is not always true that those matters which need not
clear in principle. 1 Stark. Evid. 391, be alleged with particularity, need not be
note (b); 3 Stark. Evid. 1551, note (x) proved with particularity, but stiU, all
Metcalf 's ed. Certainly that which may allegations, if material, must be proved
be traversed, must be proved, if it is not substantially as alleged.
admitted; and some facts, even though ^ Panton v. Holland, 17 Johns. 92;
stated in the form of inducement, may be Twiss v. Baldwin, 9 Conn. 291.
traversed, because they are material ; as, * Howard v. Peete, Chitty R. 315.
for example, in action for slander, upon a
76 LAW OP EVIDENCE. [PABT II.
for malicious prosecution of the plaintiff, upon a charge of felony,
before Baron Waterpark of Waterforh, proof of such a prosecution
before Baron Waterpark of Waterpark was held to be fatally
variant from the declaration.^ So, in an action of tort founded
on a contract, every particular of the contract is descriptive, and
a variance in the proof is fatal. As, in an action on the case for
deceit, in a contract of sale, made by the two defendants, proof
of a sale by one of them only, as his separate property, was held
insufficient ; for the joint contract of sale was the foundation of
the joint warranty laid in the declaration, and essential to its
legal existence and validity.^
§ 65. In (riminal prosecutions, it has been thoixght that greater
strictness of proof was required than in civil cases, and that the
defendant might be allowed to take advantage of nicer exceptions.^
But whatever indulgence the humanity and tenderness of judges
may have allowed in practice, in favor of life or liberty, the better
opinion seems to be, that the rules of evidence are in both cases
the same.* If the averment is divisible, and enough is proved to
constitute the offence charged, it is no variance, though the re-
maining allegations are not proved. Thus, ai^ indictment for
embezzling two bank-notes of equal value is supported by proof
of the embezzlement of one only.^ And in an indictment for
obtaining money upon several false pretences, it is sufficient to
prove any material portion of them.^ But where a person or
thing, necessary to be mentioned in an indictment, is described
with unnecessary particularity, all the circumstances of the de-
scription must be proved ; for they are all made essential to the
identity. Thus, in an indictment for stealing a Mack horse, the
animal is necessarily mentioned, but the color need not be stated ;
yet if it is stated, it is made descriptive of the particiilar animal
stolen, and a variance in the proof of the color is fatal.'^ So, in
an indictment for stealing a bank-note, though it would be suffi-
cient to describe it generally as a bank-note of such a denomination
1 "Walters v. Mace, 2 B. & Alcl. 756. Abbott, J. ; Lord Melville's case, 29 How-
2 "VVeall V. King, et al 12 East, 452 ; ell's St. Tr. 376 ; 2 Russell on Crimes,
Lopes V. De Tastet, 1 B. & B, 538. [See 588; United States v. Britton, 2 Mason,
Ashley v. Wolcott, 11 Gush. 192.] 464, 468.
2 Beech's case, 1 Leach's Gas. 158; ^ Garson's case, Euss. & Ey. 303 ; riu>
United States v. Porter, 3 Day, 283, 286. neaux's case, Id. 835 ; Tyer's case, Id
* Roscoe's Grim. Evid. 73 ; 1 Deacon's 402.
Dig. Grim. Liw, 459, 460. And see 2 « Hill's case, Euss. & Ry. 190.
East. P. O 785, 1021 ; 1 Phil. Evid. 506 ; '1 Stark. Evid. 374.
Rex V. Watson, 2 Stark. R. 116, 156, per
CHAP ll.j THE SUBSTANCE OP THE ISSUE. 77
or value, yet, if the name of the officer who signed it be also
stated, it must be strictly proved. ^ So, also, in an indictment for
miirder, malicious shooting, or other offence to the person, or
for an offence against the habitation, or goods, the name of the
person who was the subject of the crime, and of the owner of
the house or goods, are material to be proved _as alleged.^ But
where the time, place, person, or other circumstances are not
descriptive of the fact or degree of the crime, nor material to the
jurisdiction, a discrepancy between the allegation and the proof
is not a variance. Such are statements of the house or field,
where a robbery was committed, the time of the day, the day of
the term in which a false answer in chancery was filed, and the
like.^ In an indictment for murder, the substance of the charge
is, that the prisoner feloniously killed the deceased by means of
shooting, poisoning, cutting, blows or bruises, or the like ; it is,
therefore, sufficient, if the proof agree with the allegation in its
substance and general character without precise conformity in
every particular. In other words, an indictment describing, a
thing by its generic term is supported by proof of a species which
is clearly comprehended within such description. Thus, if the
charge be of poisoning by a certain drug, and the proof be of
poisoning by another drug ; or the charge be of felonious assault
with a staff, and the proof be of such assault with a stone ; or the
charge be of a wound with a sword, and the proof be of a wound
with an axe ; yet the charge is substantially proved, and there is
no variance.* But where the matter, whether introductory or
1 Crayen's case, Euss. & Ey. 14. So, dieted for an assault upon A. B., a deputy-
where the charge in an indictment was of sheriff, and in the officer's commission he
stealing 70 pieces of the current coin is styled A. B. junior, it is no variance if
called sovereigns, and 140 pieces called the person is proved to be the same,
half sovereigns, and 500 pieces called Commonwealth v. Beckley, 3 Metcalf, E.
crowns ; it was held, that it was not sup- 330.
ported by evidence of stealing a sum of ^ Wardle's case, 2 East, P. C. 785;
money consisting of some of the coins Pye's case, Jb. ; Johnstone's case. Id. 786 ;
mentioned in the indictment, without Minton's case. Id. 1021 ; Eex i;. Waller, 2
proof of some one or more of the specific Stark. Evid. 623 ; Eex v. Hucks, 1 Stark,
coins charged to have been stolen. Eegi- E. 521.
na V. Bond, 1 Den. Cr. Cas. E. 517 ; 14 * 1 East, P. C. 341 ; Martin's case, 5
.Tut. 390. Car. & P. 128 ; Culkin's case. Id. 121 ;
2 Clark's case, Euss. & Ey. 358; supra, §58. An indictment for stealing "a
White's case, 1 Leach's Cas. 286 ; Jenks's sheep " is supported by proof of the
case, 2 East, P. C. 514 ; Durore's case, 1 stealing of any sex or variety of that ani-
Leach's Cas. 390. But a mistake in spel- mal ; for the term is nomen generalissimum.
ling the name is no variance, if it be idem M'Cully's case, 2 Lew. C. C. 272 ; Eegi-
tonans with the name proved. Williams v. na v, Spicer, 1 Dennis, C. C. 82. So, if
Ogle, 2 Stra. 889 ; Foster's case, Euss. & the charge be of death by suffocation, by
Ey. 412 ; Tannet's case. Id. 351 ; Bingham the hand over the mouth, and the proof be
V. Dickie, 5 Taunt. 814. So, if one be in- . that respiration was stopped, though by
7*
78 LAW OF EVIDENCE. [PAEP XI.
otherwise, is descriptive, it must be proved as laid, or the variance
will be fatal. As, in an indictment for perjury in open court, the
term of the court must be truly stated and strictly proved.^ So,
in an indictment for perjury before a select committee of the
House of Commons, in a contested election, it was stated that an
election, was holden by virtue of a precept diily issued to the
bailiff of the borough of New Malton, and that A and B were
returned to serve as members for the said borough of New Malton ;
but the writ appeared to be directed to the bailiff of Malton.
Lord Ellenborough held this not matter of description ; and the
precept having been actually issued to the bailiff of the borough
of New Malton, it was sufiicient. But the return itself was deemed
descriptive ; and the proof being that the members were in fact
returned as members of the borough of Malton, it was adjudged
a fatal variance.^ So, a written contract, when set out in an
indictment, must be strictly proved.^
§ 66. Thus, also, in actions upon contract, if any part of the
contract proved should vary materially from that which is stated
in the pleadings, it will be fatal ; for a contract is an entire thing,
and indivisible. It will not be necessary to state all the parts of
a contract, which consists of several distinct and collateral pro-
visions ; the gravamen is, that a certain act, which the defendant
engaged to do, has not been done ; and the legal proposition to
be maintained is, that, for such a consideration, he became bound
to do such an act, including the time, manner, and other circum-
stances of its performance. The entire consideration must be
stated, and the entire act to be done, in virtue of such considera-
tion, together with the time, manner, and circumstances ; and
with all the parts of the proposition, as thus stated, the proof
must agree.* If the allegation be of an absolute contract, and the
proof be of a contract in the alternative, at the option of the de-
fendant; or a promise be stated to deliver merchantable goods,
and the proof be of a promise to deliver goods of a second quality ;
Bome other violent mode of strangulation, ^ 2 East, P. C. 977, 978, 981, 982 ;
it is sufficient. Eex v. Waters, 7 C. & P. Commonwealth v. Parmenter, 5 Pick.
250 [Commonwealth v. Webster, 5 Gush. 279 ; The People v. Pranklin, 3 Johns.
321, 323]. 299.
1 Where the term is designated by the ^ Clarke v. Gray, 6 East, 564, 567, 568 ;
day of the month, as in the Circuit Courts Gwinnett v. Phihips, 3 T. R. 648, 646 ;
of the United States, the precise day is Thornton v. Jones, 2 Marsh. 287 ; Parkei
material. United States v. MoNeal, 1 v. Palmer, 4 B. & A. 887; Swallow »
GaU. 387. Beaumont, 2 B. & A. 765.
2 Eex V. I,eefe, 2 Campb. 184, 140.
CHAP, II.] THE SUBSTANCE OF THE ISSUE. 79
or the contract stated be to pay or perform iii a reasonable time,
and the proof be to pay or perform on a day certain, or on the
happening of a certain event ; or the consideration stated be one
horse, bought by the plaintiff of the defendant, and the proof be
of two horses; in these and the like cases, tb" variance will be
fatal.i
§ 67. There is, however, a material distinction to be observed
between the redundancy in the allegation, and redundancy only
in the proof. In the former case, a variance between the allega-
tions and the proof will be fatal, if the redundant allegations are
descriptive of that which is essential. But in the latter case,
redundancy cannot vitiate, merely because more is proved than
is alleged ; unless the matter superfluously proved goes to con-
tradict some essential part of the allegation. Thus, if the allega-
tion were, that in consideration of £100, the defendant promised
to go to Rome, and also to deliver a certain horse to the plaintiff,
and the plaintiff should fail in proving the latter branch of the
promise, the variance would be fatal, though he soiight to recovev
for the breach of the former only, and the latter allegation was
unnecessary. But, if he had alleged only the former branch of
the promise, the proof of the latter along with it would be imma-
terial. In the first case, he described an undertaking which he
1 Penny v. Porter, 2 East, 2; Bristow is not supported by proof of a note paya-
V. "Wright, 2 Doug. 665 ; Hiltw. Campbell, ble " without defalcation." Addis v. Van
6 Greenl. 109; Symonds v. Carr, 1 Campb. BusMrk, 4 Zabr. 218. "Where a note was
361 ; King v. Robinson, Cro. El. 79. See described in the declaration as payable
fost, vol. 2, § H d. [Where the decla- "on or before" a certain day, and the
ration set forth an executory agreement proof was that it was payable " on " the
of the defendant to do certain work for a day named, it was held no variance. Mor-
certain sum, and within a certain time, on ton v. Penny, 16 lU. 494 ; see also Walker
materials to be furnished by the plaintiff, v. "Welch. 14 111. 277. The declaration
and alleged that the plaintiff did furnish was on a promise to pay money on demand;
the materials to the defendant in season tlie proof was a promise to pay incom-
for him to complete the stipulated work modities ; and it was held to be a variance,
within the stipulated time, and the proof Titus v. Ash, 4 Foster, N. H. 319. So a
was that the plaintiff had not performed declaration on a note not alleged to be
in full his agreement, but that he was ex- upon interest is not sustained by proof of
cused from the performance thereof by the a note in other respects similar, but di-aw-
waiver of the defendant ; the variance was ing interest. Gragg v. Frye, 32 Maine,
held fatal. Colt v. Miller, 10 Gush. 49, 51 ; 283. There can be no doubt of the ad-
see also Metzneru. Bolton, 24 Eng. Law & missibility of a written contract in evi-
Eq. 537. And where the declaration al- dence to prove the contract declared on,
leged an authority to one G. "W., trading though the declaration does not aver that
as G. "W". & Co., to sell goods as the goods it was in writing. It is generally unneces-
ofG.W., and the proof was of an authority sary in declaring on a simple contract in
to G. W. to sell the goods as the goods of writing to allege it to be so. This allega-
G. "W. & Co., the variance was held fatal, tion is not required even in declarations
Addington v. Magan, 2 Eng. Law & Eq. on contracts that are withhi the statute
327. A declaration setting out a note of frauds. Fiedler w. Smith, 6 Cush. 340 ;
payable " without defalcation or discount " see Irvine u. Stone, lb. 508.1
80 LAW OP EVIDENCE. [PARl 11.
has not proved; but in the latter, he has merely alleged one
promise, and proved that, and also another.^ '
§ 68. But where the subject is entire, as, for example, the cotv-
sideration of a contract,^ a variance in the proof, as we have just
seen, shows the allegation to be defective, and is, therefore,
material. Thus, if it were alleged, that the defendant promised
to pay £100, in consideration of the plaintiff's going to Rome,
and also delivering a horse to the defendant, an omission to
prove the whole consideration alleged would be fatal. And if the
consideration had been alleged to consist of the going to Rome
only, yet if the agreement to deliver the horse were also proved,
as forming part of the consideration, it would be equally fatal ;
the entire thing alleged, and the entire thing proved, not being
identical.^ Upon the same principle, if the consideration alleged
be a contract of the plaintiff to build a ship, and the proof be of
one to finish a ship partly built ; * or the consideration alleged be
the delivery of pine timber, and the proof be of spruce timber ; ^
or the consideration alleged be, that the plaintiff would indorse
a note, and the proof be of a promise in consideration that he had
indorsed a note ; ^ the variance is equally fatal. But though no
part of a valid consideration may be safely omitted, yet that which
is merely frivolous need not be stated ; ^ and, if stated, need not
be proved ; for the court will give the same construction to the
declaration, as to the contract itself, rejecting that which is non-
sensical or repugnant.^
§ 69. In the case of deeds, the same general principles arc
1 stark. Eyid. 401. Where the agree- ^ Robbins v. Otis, 1 Pick. 368.
ment, as in this case, contains several dis- ^ BuLkley v. Landon, 2 Conn. 404. [So
tinct promises, and for the breach of one if the allegation be of an agreement to
only the action is brought, the conse- obtain insurance on property, " in consid-
quences of a variance may be avoided by oration of a reasonable commission," and the
alleging the promise, as made inter alia, proof be of an agreement to obtain the in-
And no good reason, in principle, is per- surance in consideration of a definite sum,
ceived, why the case mentioned in the the variance is fatal. Cleaves v. Lord, 3
following section might not be treated in Gray, 66, 71. And where the declaration
a similar manner ; but the authorities are alleged that the defendant, " in considera-
otherwise. In the example given in the tion that said, &c., had accepted the as-
text, the allegation is supposed to import signmentof a certain policy, &c.," and the
that the undertaking consisted of neither proof was that " the policy having been
more nor less than is alleged. assigned to us, in consideration thereof,
2 Swallow V. Beaumont, 2 B. & A. we promise, &c.," it was held that there
765 ; White v. Wilson, 2 B. & P. 116 ; su- was a variance. New Hampshire Mutual,
pra, § 58. &c., Ins. Co. v. Hunt, 10 Poster, 219.1
8 1 Stark. Evid. 401 ; Lansing v. Mc- ' Brooks v. Lowrie, 1 Nott & McCord,
KiUip, 3 Caines, 286 ; Stone v. Itnowlton, 342.
8 Wend. 874. ^ Ferguson v. Harwood 8 Cranch, 408,
* Smith V. Barker, 3 Day, 812. 414.
CHAP. II.] THE SUBSTANCE OP THE ISSXIE. 81
applied. If the deed is declared upon, every part stated in the^
pleadings, as descriptive of the deed, must be exactly proved, or it
will be a variance ; and this, whethei- the parts set out at length
were necessary to be stated or not.^ If a qualified covenant be
set out in the declaration as a general covenant, omitting the
exception or limitation, the variance between the allegation and
the deed will be fatal. If the condition, proviso, or limitation
affects the original cause of action itself, it constitutes an essential
element in the original proposition to be maintained by the plain-
tiff; and, therefore, must be stated, and proved as laid ; but, if it
merely affects the amount of damages to be recovered, or the
liability of the defendant as affected by circumstances occurring
after the cause of action, it need not be alleged by the plaintiff,
but properly comes out in the defence.^ And where the deed is
not described according to its tenor, but according to its legal
effect, if the deed agrees in legal effect with the allegation, any
verbal discrepancy is not a variance. As, in covenant against a
tenant for not repairing, the lease being stated to have been made
by the plaintiff, and the proof being of a lease by the plaintiff and
his wife, she having but a chattel interest ; or, if debt be brought
by the husband alone, on a bond as given to himself, the bond
appearing to have been given to the husband and wife ; yet, the
evidence is sufficient proof of the allegation.^ But, where the deed
1 Bowditch V. Mawley, 2 Campb. 195 ; deed, or the like, livery being made in the
Dundas v. Ld. Weymouth, Cowp. 665 ; one case, and possession delivered in the
supra, § 55; Ferguson v. Harwood, 7 other, the transfer of title is perfect, not-
Cranch, 408, 413 ; Sheehy v. Mandevllle, withstanding any mistake in the name of
Id. 208, 217. the grantor ; for it takes effect bv deUvery ,
2 1 Chitty.Pl. 268, 269 (5th Am. ed.) ; and not by the deed. Perk. s'ec. 38-42.
Howell V. Kichards, 11 East, 633 ; Clarke But where the efficacy of the ti-ansaction
V. Gray, 6 East, 664:^^0. depends on the instrument itself, as in the
* Beaver v. Lane, 2 Mod. 217 ; Arnold case of a bond for the payment of money,
V. Eivoult, 1 Br. & B. 442; Whitlock v. or any other executory contract by deed,
Ramsey, 2 Munf. 510 ; Ankerstein v. if the name of the obligor in the bond is
Clark, 4 T. E. 616. It is said that an different from the signature, as if it were
allegation, that J. S. otherwise R. S. made written John and signed WiUiam, it is
a deed, is not supported by evidence, that said to be void at law for uncertainty,
J. S. made a deed by the name of E. S. miless helped by proper averments on the
1 Stark. Bvid. 513, cites Hyckman v. record. A mistake in this matter, as in
Shotbolt, Dyer, 279, pi. 9. The doctrine any other, in drawing up the contract,
of that case is very clearly expounded by may be reformed by bill in equity. At
Parke, B., in "Williams v. Bryant, 5 Mees. law, where the obUgor has been sued by
& Wels. 447. In regard to a discrep- his true name, signed to the bond, and
imcy between the name of the obligor in not by that written in the body of it, and
the body of a deed, and in the signature, the naked fact of the discrepancy, unex-
a distinction is to be observed between plained, is all which is presented by the
transactions which derive their efficacy record, it has always been held bad. This
wholly from the deed, and those which do rule was originally founded in this, that a
not. Thus, in a ffeoffinent at the common man cannot have two names of baptism at
law, or a sale of personal property by .the same time ; for whatever name was
rf2
LAW OF EVIDENCE.
[PAKT II.
is set out, on oyer, the rule is otherwise ; for, to have oyer, is, iu
inodeiu practice, to be furnished with an exact and Uteral copy
imijosed at his baptism, wlietlier single or
compounded of several names, lie being
baptized but once, that and that alone was
his baptismal name ; and by that name he
declared liimself bound. So it was held
in Herchor v. Talbot, 3 Hen. VI. 25, pi. 6,
and subseqaently in Thornton o. Wikes,
34 Hen. VI. 19, pi. 36 ; Field v. Winslow,
Cro. JBi. 8J7 ; Ohver v. Watkins, Cro. Jac.
o58 ; Maby v. Shepherd, Cro. Jac. 640 ;
Evans v. King, WiUes, 554; Gierke v.
Isted, Lutw. :i75 ; Gould v. Barnes, 3
Taunt. 504. " It appears from these cases
to be a settled point," said Parke, B., in
Williams v. Bryant, '■ that if a declara-
tion against a defendant by one Clu^stian
name, as, for instance, Joseph, state that
he executed a bond by the name of
Thomas, and there be no ave7-ment to explain
the dlfferencdj such as that he was known by
the luttev name at the time of the execution j
such a declaration would be bad on de-
murrer, or iu arrest of judgment, even
after issue joined on a plea of non est fac-
tum. And the reason appears to be, that
iu bonds and deeds, the efficacy of which
depends on the instrument itself, and not
on matter in pais, there must be a certain
desiffnatio personm of the party, which regu-
larly ought to be by the true first name or
name of baptism, and surname ; of wliich
the first is the most important." "But
on the other hand," he adds, " it is cer-
tain, that a person may at this time sue or
be sued, not merely by his true name of
baptism, but by any first name which lie
has acquired by usage or reputation."
" If a party is called and known by any
proper name, by that name he may be
sued, and the misnomer could not be
pleaded in abatement; and not only is
this the established practice, but the doc-
trine is promulgated in very ancient
times. In Bracton, 188, b, it is said,
" Item, si quis binominis fuerit, sive in
nomine proprio sive in cognomine, illud
nomen tenendum erit, quo solet frequeutiiis
appellari, quia adeo imposita sunt, ut
demonsti-ent voluntatem dicentis, et uti-
mur notis in vocis ministerio." And if a
party may sue or be sued by the proper
name, by wliich he is known, it must be a
sufficient designation of liim, if he enter
into a bond by that name. It by no
means follows, therefore, that the decision
in the case of Gould v. Barnes, and others
before referred to, in wliich the question
arose on the record, would have been the
same, if there had been an averment on the
face of the declaration, that the party was
known by the proper name in which the bond
was made, at the time of making it. We
find no autliorities for saying, that the
declaration would liave been bad with
such an averment, eeen if there had been a
total variance of the first names ; still less,
where a man, having two proper names, or
names of baptism, has bound liimself by
the name of one. And on the plea of " non
est factum," -.'Aere the difference of name
does not appe'ui en the record, and there is
evidence of the party having been known,
at the time of the execution, by the name
on the insti'ument, there Is no case, that
we are aware of, which decides that tlie
instrument is void." The name written
in the body of the instrument is that
which the party by the act of execution
and dehvery, declares to be his own, and
by which he acknowledges himself bomid.
By this name, therefore, he should regu-
larly be sued ; and if sued with an alias
dictus of his true name, by which the
instrument was signed, and an averment
in the declaration, that at the time of exe-
cuting the instrument he was known as
well by the one name as the other, it is
conceived that he can take no advantage
of the discrepancy ; being estopped by
the deed, to deny this allegation. Evans
V. lOng, Willes, 555, note (b) ; Reeves v.
Slater, 7 Barn. & Cress. 486, 490 ; Cro. El.
897, note (a). See also Regina v. Wool-
dale, 6 Ad. & El. 549, n. s. ; Wooster i/
Lyons, 5 Blackf 60. If sued by tlie name
written in the body of the deed, without
any explanatory averment, and lie pleads
a misnomer in abatement, the plaintiff) iu
his replication, may estop him by the
deed. Dyer, 279, b, pi. 9, note ; Story's
Pleadings, 43 ; Willes, 555, note. And if
he should be sued hf his true name, and
plead non est factum, wherever this plea,
as is now the case in England, since the
rule of Hilary Term, 4 Wm. IV. R. 21,
" operates as a denial of the deed in point
of fact only," all other defences against it
being required to be specially pleaded, the
difficulty occasioned by the old decisions
may now be avoided by proof, that the
party, at the time of the execution, was
known by the name on the face of the
deed. In those American States which
have abolished special pleading, substitu-
ting the general issue in all cases, with a
brief statement of the special matter of
defence, probably the new course of prac-
tice thus introduced, would lead to a simi-
lar result.
CHAP. II.] THE SUBSTANCE OP THE ISSUE. 83
of the deed declared on, every word and part of which is thereby
made descriptive of the deed to be offered in evidence. In such
case, if the plaintiff does not produce in evidence a deed literally
corresponding with the copy, the defendant may well say it is not
the deed in issue, and it will be rejected.^
§ 70. Where a record is mentioned in the pleadings, the same
distinction is now admitted in the proof, between allegations of
matter of substance, and allegations of matter of description ; the
former require only substantial proof, the latter must be literally
proved. Thus, in an action for malicious prosecution, the day of
the plaintiff's acquittal is not material. Neither is the term in
which the judgment is recovered, a material allegation, in an
action against the sheriff for a false return on the writ of execu-
tion.\ For in both cases, the record is alleged by way of induce-
ment only, and not as the foundation of the action; and therefore
literal proof is not required.^ So, in an indictment for perjury in
a case in chancery, where the allegation was, that the bill was
addressed to Robert, Lord Henly, and the proof was of a bill ad-
dressed to Sir Robert Henly, Kt., it was held no variance ; the
substance being, that it was addressed to the person holding
the great seal.^ But where the record is the foundation of the
action, the term in which the judgment was rendered, and the
number and names of the parties, are descriptive, and must be
strictly proved.*
§ 71. In regard to prescriptions, it has been already remarked,
that the same rules apply to them which are applied to contracts ;
a prescription being founded on «, grant supposed to be lost by
' Waugh 0. Bussed, 5 Taunt. 707, 709, » Per Buller, J., in Rex v. Pippett, 1
per Gibbs, C. J. ; James v. Walruth, 8 T. R. 240 ; Rodman v. Formau, 8 Johns.
Johns. 410 ; Henry v. Cleland, 14 Johns. 29 ; Brooks v. Bemiss, Id. 455 ; The State
400 ; Jansen v. Ostrander, 1 Cowen, 670, v. Caffey, 2 Mm-phy, 320.
aoo. In Henry v. Brown, 14 Johns. 49, * Rastall v. Stratton, 1 H. Bl. 49;
where the condition of tlie bond was Woodford v. Asliley; 11 East, 508 ; Black
" without fraud or other delay," and in the v. Braybrook, 2 Stark. R. 7 ; Baynes v.
oyer tlie word " other " was omitted, the Forrest, 2 Str. 892 ; United States v. Mc-
defendant moved to set aside a verdict for Neal, 1 Gall. 387. [And where in a writ
the plaintiff, because the bond was admit- of error brought to reverse the judgment
ted in evidence without regard to the of wajKcr, the judgment was called a judg-
variance ; but the court refused the mo- ment of outlawry, the variance, upon a
tion, partly on tho ground that the vari- plea of md tid record, was held fatal. Bur-
ance was immaterial, and partly, that the nett v. Phillips, 6 Eng. Law & Eq. 467.
oyer was clearly amendable. See also And though the variance be in regard to
Dorr V. Eenno, 12 Pick. 521. facts and circumstances which need not
2 Pureell v. Macnamara, 9 East, 157 ; have been stated, it is stiU fatal. Whit*-
Stoddart v. Palmer, 4 B. & B. 2 ; Pliillips ker v. Bramson, 2 Paine, C. C. 209.]
V. Shaw, 4 B. & A. 435 : 5 B. & A. 964.
84 LAW OF EVIDENCE. ; PAHT II.
lapse of time.^ If, therefore, a prescriptive right be set forth as
the foundation of the action, or be pleaded in bar and put in issue,
it must be proved to the full extent to which it is claimed ; for
every fact alleged is descriptive of the supposed grant. Thus, if
in trespass, for breaking and entering a several fishery, the plain-
tiff, in his replication, prescribes for a sole and exclusive right of
fishing in four places, upon which issue is taken, and the proof be
of such right in only three of the places, it is a fatal variance. Or,
if in trespass, the defendant justify under a prescriptive right of
common on five hundred acres, and the proof be, that liis ancestor
had released five of them, it is fatal. Or if, in replevin of cattle,
the defendant avow the taking damage feasant, and the plaintiff
plead in bar a prescriptive right of common for all the cattle, on
which issue is taken, and the proof be of such right for only a part
of the cattle, it is fatal.^
§ 72. But a distinction is to be observed between cases, where
the prescription is the foundation of the claim, and is put in issue,
and cases where the action is founded in tort, for a disturbance of
the plaintiff in his enjoyment of a prescriptive right. For in the
latter cases it is sufficient for the plaintiff to prove a right of the
same nature with that alleged, though not to the same extent ;
the gist of the action being the wrongful act of the defendant, in
disturbing the plaintiff in his right ; and not the extent of that
right. Therefore, where the action was for the disturbance of the
plaintiff in his right of common, by opening stone quarries there,
the allegation being of common, by reason both of a messuage and
of land, whereof the plaintiff was-possessed, and the proof, in a trial
upon a general issue, being of common by reason of the land only,
it was held no variance ; the court observing, that the proof was
not of a different allegation, but of the same allegation in part,
which was sufficient, and that the damages might be given accord-
ingly.^ Yet in the former class of cases, where the prescription
is expressly in issue, proof of a more ample right than is claimed
will not be a variance ; as, if the allegation be of a right of com
mon for sheep, and the proof be of such right, and also of common
for cows.*
1 Supra, § 58 \post, vol. 2, § 537-546, Tarley v. Turnock, Cro. Jac, 629; Mani-
tit. Pkescbiption]. fold v. Pennington, 4 B. & C. 161.
2 Rogers v. Allen, 1 Campb. 313, 315 ; * Bushwood v. Pond, Cro. El. 722 ;
Botherham v. Green, Noy, 67 ; Conyers Tewksbury v. Brlcknell, 1 Taunt. 142:
V. Jackson, Clayt. 19 ; Bull. N. P. 299. supra, §§ 58, 67, 68.
» Rickets •> Salway, 2 B. & A. 860 ;
CHAP. II. (
i'HE SUBSTANCE OP THE JSSUJii.
85
§ 73. But the party may now, in almost every case, avoid the
consequences of a variance between the allegation in the pleadings
and the state of facts proved, by amendment of the record. This
power was given to the courts in England by Lord Tenderden's
Act,-"^ in regard to variances between matters in writing or in print,
produced in evidence, and the recital thereof upon the record ; and
it was afterwards extended ^ to all other matters, in the judgment
of the court or judge not material to the merits of tlio case, upon
such terms as to costs and postponement as the court or judge may
deem reasonable. The same power, so essential to the administra-
tion of substantial justice, has been given by statutes to the courts
of most of the several states, as well as of the United States ; and
in both England and America these statutes have, with great pro-
priety, been liberally expounded, in furtherance of their beneficial
design.^ The judge's discretion, in allowing or refusing amend-
ments, like the exercise of judicial discretion in other cases, cannot,
in general, be reviewed by any other tribunal.* It is only in the
cases and in the manner mentioned in the statutes, that the pro-
priety of its exercise can be called in question.
1 9 Geo. IV. c. 15.
2 By Stat. 3 & 4 Wm. IV. c. 42, § 23.
3 See Hanbury v. Ella, 1 Ad. & El. 61 ;
Parry v. Eairhurst, 2 Cr. M. & R. 190,
196 ; Doe v. Edwards, 1 M. & Rob. 819 ;
6 C. & P. 208, s. c. ; Hemming v. Parry,
6 C. & P. 580 ; Mash v. Densham, 1 M. &
Rob. 442 ; Ivey v. Young, Id. 545 ; How-
ell V. Thomas, 7 C. & P. 342 ; Mayor, &c.,
of Carmarthen v. Lewis, 6 C. & P. 608 ;
Hill V. Salt, 2 C. & M. 420 ; Cox v. Paint-
er, 1 Nev. & P. 581 ; Doe v. Long, 9 C. &
P. 777 ; Ernest v. Brown, 2 M. & Rob. 13 ;
Story V. Watson, 2 Scott, 842 ; Smith v.
Brandram, 9 Dowl. 430; Whitwell v.
Scheer, 8 Ad. & El. 301; Read ;;. Duns-
more, 9 C. & P. 588 ; Smith ;;. Knowel-
den, 8 Dowl. 40 ; Norcott v. Mottrani, 7
Scott, 176 ; Legge v. Boyd, 5 Bing. N. C.
240. Amendments were refused in Doe
w. Errington, 1 Ad. & El. 750; Cooper
V. Whitehouse, 1 C. & P. 545 ; Jolni o.
Currie, id. 618 ; Watkins v. Morgan, Id.
661; Adams v. Power, 7 C. & P. 76;
Brashier v. Jackson, 6 M. & W. 549 ; Doe
V. Rowe, 8 Dowl. 444 ; Einpson v. Griffin,
3 P. & D. 168. The following are cases
of variance, arising under Lord Tenter-
den's Act. Bentzing v. Scott, 4 C. & P.
24; MoiUiet v Powell, 6 C. & P. 223;
VOL. I. 8
Lamey v. Bishop, 4 B. & Ad. 479 ; Briant v.
Eicke, Mood. & Malk. 359 ; Parks v. Edge,
1 C. & M. 429 ; Masterman v. Judson, 8
Bing. 224 ; Brooks v. Blanchard, 1 C. &
M. 779; Jelf t). Oriel, 4 C. & P. 22. The
American cases, which are very numer-
ous, are stated in 1 Metcalf &, Perkins's Di-
gests, p. 145-162, and in Putnam's Supple-
ment, vol. 2. p. 727-780. [See also post,
vol. 2, § 11 ci-11 e.]
* Doe V. Errington, 1 M. & Rob. 344,
note ; Mellish v. Richardson, 9 Bing. 125 ;
Parks V. Edge, 1 C. & M. 429 ; Jenkins v.
Phillips, 9 C. & P. 766 ; Merriam v. Lang-
don, 10 Conn. 460, 473 ; Clapp v. Balch,
3 Greenl. 216, 219 ; Mandeville v. Wilson,
5 Cranch, 15 ; Marine Ins. Co. v. Hodg-
son, 6 Cranch, 206 ; Walden v. Craig, 9
Wheat. 576 ; Chirac v. Reinicker, 11
Wheat. 302; United States v. Buford, 8
Peters, 12, 32; Benner v. Frey, 1 Binn.
366 ; Bailey v. Musgrave, 2 S. & ]?.. 219 ;
Bright I'. Sugg, 4 Dever. 492. But if 1bp
judge exercises his discretion in a manuiT
clearly and manifestly wrong, it is sa-il
that the court will interfere and set it
right. Hackman v. Eernie, 1 M. & W.
505 ; Geach v. Ingall, 9 Jur. 691 ; 14 M. S
W. 95.
86 UAW OP EVIDENCE. ( PAKT II.
CHAPTER III.
OP THE BURDEN OP PROOF.
I » § 74. The burden of proof is upon him who takes the affirmative of the issue.
75. The plaintiff will have the open and close, if it be necessary for him to give
any proof, in the first instance, even as to damages.
76. This will embrace all actions where damages are unhquidated, even where no
general issue is pleaded.
77. Proceedings not according to the common law, are conducted in a similar
mode.
78. Where the action is ba^ed upon negative averments, proof must be given
in their support in the first instance.
79 and n. But where the negative fact is peculiarly in the knowledge of defendant,
slight proof is suflioient.
80. "Where the action is based upon a negative breach of duty, some evidence
must be given in support of the allegations.
81. Many other cases where negative is required to be proved.]
§ 74. A THIRD RULE, whicli governs in the production of evidence,
is, that the obligation of proving any fact lies upon the party who
substantially asserts the affirmative of the issue. Tliis is a rule of
convenience, adopted not because it is impossible to prove a nega-
tive, but because the negative does not admit of the direct and
simple proof of which the affirmative is capable. ^ It is, therefore,
generally deemed sufficient, where the allegation is affirmative, to
oppose it with a bare denial, until it is established by evidence.
Such is the rule of the Roman law. Ui incumiit probatio qui dieit,
non qui negat? As a consequence of this rule, the party who asserts
the affirmative of the issue is entitled to begin and to reply ; and
having bej,'un, he is not permitted to go into half of his case, and
1 Dranguet ti. Prudhomme, 8 Louis. R. any "aspect of the cause; the latter shifts
83, 8B ; Costigan v. Mohawk & Hudson from side to side in the progress of a trial
R. Co. 2 Denio, 609. [Powers v. Russell, according to the nature and strength of
13 Pick. 69, 76 ; Commonwealth v. Tuey, the proofs offered in support or denial of
8 Cush. 1 ; Burnham v. Allen, 1 Gray, the main fact to be established. Central
496, 499 ; Crovvninsliield v. Crownin- Bridge Corporation v. Butler, 2 Gray,
shield, '2 Gray, 524, 529. The burden of 132; Blanchard v. Young, 11 Cush. 345;
proof and tlio weight of evidence are two Spaulding v. Hood, 8 Cush. 605, 606].
very different things. The ^former re- '^ Dig. lib. 22, tit. 3, 1. 2 ; Mascard. de
mains on the party atfirming a fact in sup- Prob. Concl. 70, tot. ; Concl. 1128, u. 10.
port of his case, and does not change in See also Tait on Evid. p. i.
CHAP. III.] THE BURDEN OF PROOF. 87
reserve the remainder ; but is generally obliged to develop the whole.'
Regard is had, in this matter, to the substance and effect of the
issue, rather than to the form of it ; for in many cases the party, by
making a slight change in his pleading, may give the issue a nega-
tive or an af&rmative form, at his pleasure. Therefore in an action
of covenant for not repairing, where the breach assigned was that
the defendant did not repair, but suffered the premises to be ruin-
ous, and the defendant pleaded that he did repair, and did not suf-
fer the premises to be ruinous, it was held, that on this issue the
plaintiff should begin. ^ If the record contains several issues, and
the plaintiff hold the affirmative in any one of them, he is entitled
to begin ; as, if in an action of slander for charging the plaintiff
with a crime, the defendant should plead not guilty, and a justifica-
tion. For wherever tlie plaintiff is obliged to produce any proof in
order to establish his right to recover, he is generally required to go
into his whole case, according to the rule above stated, and there-
fore is entitled to reply. How far he shall proceed in his proof, in
anticipation of the defence on tliat or the other issues, is regulated
by the discretion of the judge, according to tlie circumstances of
the case ; regard being generally had to the question, whether the
whole defence is indicated by the plea, with sufficient particularity
to render the plaintiffs evidence intelligible.^
§ 75. Whether the necessity of proving damages, on the part of
the plaintiff, is such an affirmative as entitles him to begin and
1 Eees V. Smith, 2 Stark. E. 31 ; 3 ^ Soward v. Leggatt, 7 C. & P. 613.
Chitty, Gen. Pract. 872-877 ; Swift's Law =" Eees v. Smith, 2 Stark. E. 31 ; Jaek-
of Evid. p. 152 ; Bull. N. P. 298; Browne son v. Hesketh, Id. 518 ; James v. Salter,
V. Murray, E. & Mood. 254 ; Jones v. 1 M. & Bob. 501 ; Eawlins v. Desborough,
Kennedy, 11 I'ick. 125, 132. The true 2 M. & Rob. 328 ; Comstock v. Hadlyme,
test to determine which party has the 8 Conn. 261 ; Curtis v. Wheeler, 4 C. &
right to begin, and of course to determine P. 196 ; 1 M. & M. 493, s. c. ; Williams v.
where is the burden of proof, is to cousid- Thomas, 4 C. & P. 234 ; 7 Pick. 100, per
er which party would be entitled to the Parker, C. J. In Browne v. Murray, Ey.
Terdiet, if no evidence were otfered on & Mood. 254, Lord C. J. Abbott gave the
either side ; for the burden of proof lies plaintiiF his election, after proving the
on the party against whom, in such case, general issue, either to proceed immedi-
the verdict ought to be given. Leete v. ately with all his proof to rebut tbe antici-
Gresham Life Ins. Co. 7 Eng. Law & Eq. pated defence, or to reserve such proof
Eep. 578; 15 Jur. 1161. And see Hack- till the defendant had closed liis own evi-
man v. Fernie, 3 M. & W. 510. [ * Mr. dence ; only refusing him tlie privilege of
Taylor suggests another test : To exam- dividing his case into halves, giving part
ine what would be the eifect of striking in the first instance, and the residue after
out of the record the allegations to be the defendant's case was proved. [York v.
proved, that the burden of proof rests up- Pease, 2 Gray, 282 ; Holbrook v. McBride,
on the party whose case would be thereby 4 lb. 218 ; Oijghing v Billings i Cush.
destroyed. 1 Taylor Ev. § 338 ; Amos v. 158.]
Hughes, 1 M. & Rob. 464, per Alder-
Bon, B.]
88 . LAW OF EVIDENCE. [PAET H.
reply, is not perfectly clear by the authorities. "Where such evi-
dence forms part of the proof necessary to sustain the action, it
may well be supposed to fall within the general rule ; as, in an
action of slander, for words actionable only in respect of the special
damage thereby occasioned; or, in an action on the case, by a
master for the beating of his servant per quod servitium amisit. It
would seem, however, that where it appears by the record, or by
the admission of counsel, that the damages to be recovered are
only nominal, or are mere matter of computation, and there is no
dispute about them, the formal proof of them will not take away
the defendant's right to begin and reply, whatever be the form of
the pleadings, provided the residue of the case is affirmatively
justified by the defendant.^ And if the general .issue alone is
pleaded, and the defendant will, at the trial, admit the whole of
the plaintiff's case, he may stUl have the advantage of the beginning
and reply .^ So also in trespass quare clausum fregit, where the
defendant pleads not guilty as to the force and arms and whatever
is against the peace, and justifies as to the residue, and the dam-
ages are laid only in the usual /ormw^a of treading down the grass,
and subverting the soil, the defendant is permitted to begin and
reply ; there being no necessity for any proof on the part of the
plaintiff.^
§ 76. The difficulty in determining this point exists chiefly in
those cases, where the action is for unliquidated damages, and the
defendant has met the whole case with an affirmative plea. -In
these actions the practice has been various in England ; but it has
' Fowler u. Coster, 1 Mood. & M. 243, ner, Id. 721; MUls v. Oddy, Id. 728;
per Lord Tenterden. And see the re- Scott v. Hull, 8 Conn. 296. But see infra,
porter's note on that case, in 1 Mood. & § 76, n. 4.
M. 278-281. The dictum of the learned 3 Hodges v. Holden, 3 Campb. 366 ;
judge, in Brooks v. Barrett, 7 Pick. 100, Jackson v. Hesketh, 2 Stark. R. 518 ;
Is not supposed to militate with this rule ; Pearson v. Coles, 1 Mood. & Rob. 206 ;
but is conceived to apply to cases where Davis v. Mason, 4 Pick. 156; Leech v.
proof of the note is required of the plain- Armitage, 2 Dall. 125. [Where a defend-
tiflf. Sanford v. Hunt, 1 C. & P. 118 ; ant under a rule of court filed an admis-
Goodtitle v. Braham, 4 T. R. 497. [For sion of the plaintiff's prima facie case, in
a qualification of Brooks v. Barrett, see order to obtain the right to open and
Orowninshield v. Crowninshield, 2 Gray, close, he was held not to be thero'-y es-
528.] topped from setting up in defenijC the
2 'i'ucker v. Tucker, 1 Mood. & M. statute of limitations. Emmons v. Hay-
53ij; Fowler v. Coster, Id. 241; Doe v. ward, 11 Gush. 48; nor from showing that
liarnes, 1 M. & Rob. 386 ; Doe v. Smart, the plaintiff had no title to the note sued
Id. 476 ; , Fish v. Travers, 3 C. & P. 578 ; on. Spaulding !'. Hood, 8 Cush. 602 An
Comstock V. Hadlyme, 8 Gcnn. 261 ; La- auditor's report in favor of the plaintiff
con II. Higgins, 3 Stark. R. 178 ; Corbett will not give the defendant the right to
V. Corbett, 3 Campb. 368; Foman v. open and close. Snow >/. Batchelder, 3
Thompson, 6 C. & P 717; Smart w. Ray- Cush. 513.]
CHAP. III.]
THE BUEDEN OP PROOF.
89
at length been settled by a rule, by the fifteen judges, that the
plaintiff shall begin in all actions for personal injuries, libel, and
slander, though the general issue may not be pleaded, and the
affirmative be on the defendant.^ In actions upon contract, it was,
until recently, an open question of practice ; having been some-
times treated as a matter of right in the party, and at other times
regarded as resting in the discretion of the judge, under all the
circumstances of the case.^ But it is now settled, in accordance
with the rule adopted in other actions.^ In this country it is
generally deemed a matter of discretion, to be ordered by the
judge at the trial, as he may think most conducive to the adminis-
tration of justice ; but the weight of authority, as well as the anal-
ogies of the law, seem to be in favor of giving the opening and
closing of the cause to the plaintiff, wherever the damages are in
dispute, unliquidated, and to be settled by the jury upon such
evidence as may be adduced, and not by computation alone.*
§ Y7. Where the proceediugs are not according to the course of
' Carter v. Jones, 6 C. & P. 64.
2 Bedell v. Eussell, Ry. & M. 293;
Fowler v. Coster, 1 M. & M. 241 ; Kevett
ti. Braham, 4 T. R. 497 ; Hare v. Munn, 1
M. & M. 241, note ; Soott v. Hull, 8 Conn.
296 ; Burrell v. Nicholson, 6 0. & P. 202;
1 M. & R. 304, 306 ; Hoggett v. Exley, 9
C. & P. 324. See also 3 CMtty, Gen.
Practice, 872-877.
3 Mercer v. Whall, 9 Jur. 576 ; 5 Ad.
& El. 447, N. s.
* Such was the course in Young v.
Bairner, 1 Esp. 103, which was assumpsit
tor work, and a plea in abatement for the
nou-joinder of other defendants ; Robey
V. Howard, 2 Stark. R. 555, S. P. ; —
Stausfield v. Levy, 8 Stark. R. 8, S. P. ;
— Lacon v. Higgins, 2 Stark. R. 178,
wliere in assumpsit for goods, coverture
of the defendant was the sole plea; —
Mare v. -Munn, 1 M. & M. 241, note, which
was assumpsit for money lent, with a plea
hi abatement for the non-joinder of other
defendants; — Morris v. Lotan, 1 M. &
Hob. 233, S. P. ; "Wood v. Pringle, Id. 277,
which was an action for a libel, with sev-
eral special pleas of justification as to
part, but no general issue ; and as to the
parts not justified, judgment was suflTered
by default. See ace. Comstock v. jfad-
lyme, 8 Conn. 261 ; Ayer v. Austin, 6
Pick. 225 ; Hoggett v. Exley, 9 C. & P.
324; 2 M. & Rob. 251, 8. 0. On the other
hand are Cooper v. Wakley, 3 Car. &
P. 474 ; 1 M. & M. 248, s. c, which was a
nase for n libel, with pleas in justification,
8*
and no general issue ; but this is plainly
contradicted by the subsequent case of
Wood V. Pringle, and has since been over
ruled in Mercer v. Whall ; — Cotton v.
James, 1 M. & M. 273 ; 3 Car. & P. 505,
s. c, which was trespass for entering the
plaintiff's house, and taking his goods with
a plea of justification under a commission
of bankruptcy ; but this also is expressly
contradicted in Morris v. Lotan ; — Bedell
V. Russell, Ry. & M. 293, which was tres-
pass of assault and battery, and battery,
and for shooting the plaintiff, to which a
justification was pleaded ; where Best, J.,
reluctantly yielded to the supposed au-
thority of Hodges V. Holden, 3 Campb.
366, and Jackson v. Hesketh, 2 Stark. R.
581 ; in neither of which, however, were
the damages controverted ; — Fish v. Trav-
ers, 3 Car. & P. 578, decided by Best, J.,
on the authority of Cooper v. Waldey,
and Cotton v. James ; — Burrell v. Nichol-
son, 6 Car. & P. 202, which was trespass
for taking the plaintiff's goods in his
house, and detaining them one hour, which
the defendant justified as a distress fpr
parish rates; and the only issue was,
whether the house was within the parish
or not. But here, also, the damages were
not in dispute, and seem to have been re-
garded as merely nominal. See also
Scott V. Hull, 8 Conn. 296. In Norris v.
Ins. Co. of North America, 3 Yeates, 84,
which was covenant on a policy of insur-
ance, to which performance was pleaded,
the damages were not then in dispute, the
90
LAW OP EYIDENCB.
[PAET n.
the common law, and where, consequently, the onus prolandi is
not technically presented, the courts adopt the same principles
parties haring proTisioually agreed upon
a mode of liquidation. But in England
the entire subject has recently undergone
a review, and the rule has been estab-
lished, as applicable to all personal ac-
tions, that the plaintiff shall begin, wher-
erer he goes for substantial damages not
already ascertained. Mercer v. Whall, 9
Jut. 576 ; 5 Ad. & El. 447, n. s. In this
case Lord Benman, C. J., in delivering
the judgment of the court, expressed his
opinion as follows : " Tlie natural course
would seem to be, that the plaintiff should
bring his own cause of complaint before
the court and jury, in every case where
he has any thing to prove either as to the
facts necessary for his obtaining a verdict,
or as to the amount of damage to which
he conceives the proof of such facts may
entitle him. The law, however, has by
some been supposed to differ from this
course and to require that the defendant by
admitting the cause of action stated on the
record, and pleading only some afiirmar
tive fact, which, if proved, will defeat the
plaintiff's action, may entitle himself to
open the proceeding at the trial, anticipa-
ting the plaintiff's statement of his injury,
disparaging him and his ground of com-
plaint, offering or not offering, at his own
option, any proof of his defensive allega-
tion, and, if he offers that proof, adapting
it not to the plaintiff's case as established,
but to that which he chooses to represent
that the plaintiff's case will be. It ap-
pears expedient that the plaintiff should
begin, in order that the judge, the jury,
and the defendant himself should know
precisely how the claim is shaped. This
disclosure may convince the defendant
that the defence which he has pleaded
cannot be established. On hearing the
extent of the demand, the defendant may
be induced at once to submit to it rather
than persevere. Thus the affair reaches
its natural and best conclusion. If this
does not occur, the plaintiff, by bringing
forward his case, points his attention to
the proper object of the trial, and enables
the defendant to meet it with a full under-
standing of its nature and character. If
it were a presumption of law, or if expe-
rience prove, that the plaintiff's evidence
must always occupy many hours, and that
the defendant's could not last more than as
many minutes, some advantage would be
secured by postponing the plaintiff's case
to that of the defendant. But, first, the
direct contrary in both instances may
be true ; and, secondly, the time would
only be saved by stopping the cause for
the purpose of taking the verdict at the
close of the defendant's proofs, if that ver-
dict were in favor of the defendant. This
has never been" done or proposed ; if it
were suggested, the jury would be Ukely
to say, on most occasions, that they could
not form a satisfactory opinion on the ef-
fect of the defendant's proofs till they had
heard the grievance on which the plaintiff
founds his action. In no other case can
any practical advantage be suggested as
arising from this method of proceeding.
Of the disadvantages that may result firo!
it, one is the strong temptation to a defend
ant to abuse the privilege. If he well
knows that the case can be proved against
him, there may be skilful management in
confessing it by his plea, and affirming
sometliing by way of defence which he
knows to be untrue, for the mere purpose
of beginning." See 9 Jur. 578 ; 5 Ad. &
El. 458, N. s. Ordinarily speaking, the
decision of the judge, at Nisi Prius, on a
matter resting in his discretion, is not sub-
ject to revision in any other court. But
in Hackman v. Fernie, 5 M. & W. 505, the
court observed, that though they might
not interfere in a very doubtful case, yet
if the decision of the judge " were clear-
ly and manifestly wrong," they would in-
terfere to set it right. In a subsequent
case, however, it is said that instead of
" were clearly and manifestly wrong," the
language actually used by the court was,
" did clear and manifest wrong ; " meaning
that it was not sufficient to show merely
that the wrong party had begun, but that
some injustice had been done in conse-
quence. See Edwards v. Matthews, 11
Jur. 398. See also Geach v. Ingall, 9 Jur.
691 ; 14 M. & W. 95. [In Page v. Os-
good, 2 Gray, 260, the question arose, who
should have the opening and close to the
jury, the defendant admitting the plain-
tiff's cause of action, and the only issue
being on the defendant's declaration in
set-off ; which demand in set-off tlie stat-
ute provides " shall be tried in like man-
ner as if it had been set forth in an action
brought by him," and there being a uni-
form rule of court giving the right of
opening and closing in all cases to the
plaintiff. The court held that there was no
reason for departing from the rule which
had been found to be of great practical
convenience, and overruled the excep-
tions, thus sustaining the plaintiff's right
in such a case to open and close.] [ * It
seems to have been considered, in some of
the American states, that in actions like
slander, where the defendant admits the
CHAP. III.] THE BURDEN OP PEOOP. 91
which govei-n in proceedings at common law. Thus, in the prolate
of a will, as the real question is, whether there is a valid will or
not, the executor is considered as holding the affirmative ; and
therefore he opens and closes the case, in whatever state or condi-
tion it may be, and whether the question of sanity is or is not
laised.i
§ 78. To this general rule, that the burden of proof is on the
party holding the affirmative, there are some exceptions, in which
the proposition, though negative in its terms, must be proved by
the party who states it. One class of these exceptions will be found
to include those cases in which the plaintiff grounds his right of
action upon a negative allegation, and where, of course, the establish-
ment of this negative is an essential element in his case ; ^ as', for
example, in an action for having prosecuted the plaintiff maliciously
and without probable cause. Here, the want of probable cause
must be made out by the plaintiff, by some affirmative proof, though
the proposition be negative in its terms.^ So, in an action by
husband and wife, on a promissory note made to the wife after
marriage, if the defendant denies that she is the meritorious cause
of action, the burden of proving this negative is on him.* So, in
a prosecution for a penalty given by statute, if the statute, in
describing the offence, contains negative matter, the count must
contain such negative allegation, and it must be supported by
frimd facie proof. Such is the case in prosecutions for penalties
given by statutes, for coursing deer in enclosed grounds, not having
speaking of the words, and offers evidence Brooks v. Barrett, 7 Pick. 94 ; Comstock
in justification, or even in mitigation of v. Hadlyme, 8 Conn. 2r34 ; Ware v. Ware,
damages, that he is entitled to open the 8 Greenl. 42 ; Hubbard v. Hubbard, 6
case. Gaul w. Fleming, 10 Ind. 25. But Mass. 397. [Crowninshield v. Crownin-
tliat'proposition is certainly not maintain- shield, 2 Gray, 524, 528.]
able, since the plaintiff is still entitled to ^ 1 Chitty on PI. 206 ; Spiers i\ Parker,
give evidence of facts showing special 1 T. E. 141 ; Rex v. Pratten, 6 T. R. 559 ;
malice, in aggravation of damages, and to Holmes v. Love, 3 B. & C. 242 ; Lane v.
open the case generally upon the question Crombie, 12 Pick. 177 ; Harvey v. Tow-
of damages. The English form of ex- ers, 15 Jur. 544 ; 4 Eng. Law & Eq. Rep.
pression upon this point, will go far to in- 531. [*Mr. Taylor, Ev. § 339, states
dicate the precise inquiry upon which the the rule to be, that where the affirmative
right should turn. The inquiry there is, is supported by a disputable presumption
which party has the right " to begin " 1 of law, the party supporting the negative
And that will determine where the must call witnesses, in the first instance, to
right to close rests. The party first re- overcome this presumption.]
quired to give proof has the opening and ^ Purcell v. Macnamara, 1 Campb. 199 ;
the general close; the other party being 9 East, 361, s. c. ; Ulmer v. Leland, 1
required to give all his evidence, both in Greenl. 134 ; Gibson v. Waterhouse, 4
reply to jjlaintiff's case and support of his Greenl. 226.
own, at one time, leaving the general re- * Philliskirk v. Pluckwell, 2 M. & S
ply to the other party.] 395 ; per Bayley, J.
1 Buckminster v. Perry, 4 Mass 593 ;
92 LAW OP EVIDENCE. [PAET II.
the consent of the owner ; ^ or for cutting trees on lands not the
party's own, or taking other property, not having the consent of
the owner ; ^ or for selling, as a peddler, goods not of the produce
or manufacture of the country ; ^ or, for neglecting to prove a will,
without just excuse made and accepted by the Judge of Probate
therefor.* In these, and the like cases, it is obvious, that jjlenary
proof on the part of the affirmant can hardly be expected ; and,
therefore, it is considered sufficient if he offer such evidence as, in
the absence of counter testimony, would afford ground for presum-
ing that the allegation is true. Thus, in an action on an agree-
ment to pay £100, if the plaintiff would not send herrings for one
year to the London market, and, ui particular, to the house of J. &
A. Millar, proof that he sent none to that house was held sufficient
to entitle him to recover, in the absence of opposing testimony .^
And generally, where a party seeks, from extrinsic circumstances
to give effect to an instrument which, on its face, it would not
have, it is incumbent on him to prove those circumstances, though
involving the proof of a negative ; for in the absence of extrinsic
proof, the instrument must have its natural operation, and no other.
Therefore, where real estate was devised for life with power of
appointment by will, and the devisee made his will, devising all
Ms lands, but without mention of or reference to the power, it was
held no execution of the power, unless- it should appear that he
had no other lands ; and that the burden of showing this negative
was upon the party claiming under the will as an appointment.^
§ 79. But where the subject-matter of a negative averment lies
feculiarly within the Jcnoivledge of the other party, the averment is
taken as true, unless disproved by that party. Such is the case in
civil or criminal prosecutions for a penalty for doing an act Avhich
the statutes do not permit to be done by any persons, except those
who are duly licensed therefor ; as, for selling liquors, exercising
a trade or profession, and the like. Here the party, if licensed,
can immediately show it, without the least inconvenience ; whereas,
1 Eox V. Rogers, 2 Cafiapb. 654 ; Eex "Williams v. Hingliam and Quincy Turn-
V. Jarvis, 1 East, 043, note. pike Co. 4 Piclc. 341 ; Eex v. Stone, 1
2 Little V. Thompson, 2 Greenl. 128 ; East, 637 ; Eex v. Burditt, 4 B. & Aid. 0&
Bex V. Hazy et »/., 2 C. & P. 458. 140 ; Eex v. Turner, 5 ]\I. & S. 206
^ Commonwealth v. Samuel, 2 Pick. Woodbury v. Prmk, 14 lU. 279.
103. » Calder v. Rutherford, 3 B & B. 302
■i Smith V. Moore, 6 Greenl. 274. See 7 Moore, 158, s. c.
otlier examples in Commonwealth v. Max- " Doe v. Johnson, 7 Man. & Gr. 1>17.
well. 2 Pick. 139; 1 East, P. C. 166, § 15;
CHAP, in.]
THE BUBDBN OF PROOF.
93
if proof of the negative were required, the inconvenience would
be very great.^
§ 80. So, where the negative allegation involves a charge of
irriminal neglect of duty, whether official or otherwise ; or fraud ;
or the wrongful violation of actual lawful possession of property ;
the party making the allegation must prove it ; for in these cases
the presumption of law, which is always in favor of innocence,
and quiet possession, is in favor of the party charged. Thus, in an
information against Lord Halifax, for refusing to deliver up the
rolls of the auditor of the Exchequer, in violation of his duty, the
prosecutor was required to prove the negative. So, where one in
office was charged with not having taken the sacrament within a
year ; and where a seaman was charged with having quitted the
ship, without the leave in writing required by statute ; and where a
shipper was charged with having sliipped goods dangerously com-
bustible on board the plaintiff's sliip, without giving notice of their
nature to any officer on board, whereby the ship was burned and
lost ; in each of these cases, the party alleging the negative was
1 Rex V. Turner, 5 M. & S. 206 ; Smith
V. Jeffries, 9 Price, 257 ; Sheldon w. Clark,
1 Johns. 513 ; United States v. Hayward,
2 Gall. 485 ; Gening v. The State, 1 Mc-
Cord, 573 ; Commonwealth v. KimbaU, 7
Met. 304 ; Harrison's case, Paley on Conv.
45, n. ; Apothecaries' Co. v. Bentley, Ey.
6 Mood. 159; HaskiU v. The Common-
wealth, 3 B. Monr. 342; The State v.
Morrison, 8 Dev. 299 ; The State v. Crow-
eU, 12 Shepl. 171 ; Shearer v. The State,
7 Blackf. 99. By a statute of Massachu-
setts, 1844, ch. 102, the burden of proving
a license for the sale of liquors is express-
ly devolved on the person selling, in aE
prosecutions for selling liquors without a
license. [See also Commonwealth v. Thur-
low, 24 Pick. 374, 381, which was an
indictment against the defendant for
presuming to be a retailer of spirituous
liquors without a license therefor. In this
case the court did not decide the general
question, saying that " cases may be af-
fected by special circumstances, giving
rise to distinctions applicable to them to be
considered as they arise," but held vmder
that indictment that the government must
produce prima fade evidence that the de-
fendant was not licensed. See post, vol.
8, § 24 and note. In Commonwealth v.
Kimball, 7 Met. 304, the court held, in a
similar indictment, that the docket and
minutes of the county commissioners
before their records are made up, are com-
petent evidence, and if no license to the
defendant appears on such docket or min-
utes (the county commissioners being the
sole authority to grant licenses), it is pri-
ma facie evidence that the defendant was
not licensed.
It has been decided that the provisions
of the Massachusetts Act of 1844, ch. 102,
do not apply to indictments under the law
of 1855, ch. 405, which enacts that all
buildings, &e., used for the illegal sale or
keeping of intoxicating hquors, shall be
deemed common nuisances ; — an Act of
the same year (Acts 1855, ch. 215), mak-
ing any sale or keeping for sale, within the
state, of intoxicating Uquors unless in
the original packages, &c., without au-
thority, an unlawful and criminal act.
This was decided in Commonwealth v.
Lahey, S. J. C. Berkshh-e, Sept. T. 1857,
not yet reported ; — which was an indict-
ment under the Act of 1855, cC. 405, for
maintaining a common nuisance in keep-
ing a building used for the illegal sale of
intoxicating hquors. The court below
ruled that the government need not show
that the defendant was not licensed, but if
the defendant relied on a license to sell in
his defence, he should show that fact.
The Supreme Judicial Court sustained
the exceptions to this ruling. See note ol
the decision in this case in 20 Law Re
porter (Oct. 1857), 3521.
94
LAW OF EVIDENCE.
[part n.
required to prove it.^ So, where the defence to an action on a
policy of insurance was, that the plaintiff improperly concealed
from the uilderwriter certain facts and inforpiation which he then
already knew and had received, it was held that the defendant was
'Bound to give some evidence of the non-communication.^ So, where
the goods of the plaintiff are seized and taken out of his possession,
though for an alleged forfeiture under the revenue laws, the seizure
is presumed unlawful until proved otherwise.^
§81. So, where infancy is alleged;* or, where one born in law-
ful wedlock is alleged to be illegitimate, the parents not being
separated by a sentence of divorce ; ^ or, where insanity is alleged ; "
or, a person once .living is alleged to be dead, the presumption of
life not being yet worn out by lapse of time ; ' or, where nonfeasance
or negligence is alleged, in an action on contract ; ^ or, where the
1 United States v. Hayward, 2
498 ; Hartwell v. Root, 19 Johns,
N. P. [298] ; Rex v. ~ "
BuU.
East,
302;
192.
Gall.
345;
Hawkins, 10
211 ; Frontine v. Frost, 3 B. & P.
"Williams v. E. India Co. 3 East,
See also Commonwealth v. Stow, 1
Mass. 54 ; Evans v. Birch, 3 Campb. lo.
[So in an action against an officer for neg-
lecting to attach property as the property
of the plaintiff's debtor, the biu-den of
proving that the property was so far the
debtor's as to be liable to attachment as
his, is upon the plaintiff throughout, al-
though the defendant claims the title to
himself under a purchase from the debtor.
Phelps V. Cutler, 4 Gray, 139.]
2 Elkin V. Janson, 13 M, & W. 655.
' Aitcheson v. Maddock, Peake's Gas.
162. An exception to this rule is admit-
ted in Chancery, in the case of attorney
and client ; it being a rule there, that if
the attorney, retaining the connectioh,
contracts with his client, he is subject to
the burden of proving that no advantage
has been taken of the situation of the lat-
ter. 1 Story, Eq. Jur. § 311 ; Gibson v.
Jeyes, 6 Ves. 278 ; Cane v. Ld. AUen, 2
Dow, 289, 294, 299. [So in trespass
brought by the owner of land against a
railroad corporation, where the plaintiff
has shown his title to the land, the entry
by the defendants and the construction of
their road upon it, the defendants must jus-
tify by showing that this land is covered by
the authorized location of their road. Ha-
zen V. Boston & Maine R. R. 2 Gray, 574,
579. Where such land is shown or ad-
mitted to be so covered by the location,
the burden does not rest on the corpora-
tion or its servants, to show that acts done
on such land, as cutting down trees, were
done for the purposes of the road. Brain-
ard V. Clapp, 10 Cush. 6. So every im-
prisonment of a man is, prima facie, a tres-
pass ; and in an action to recover damages
therefor, if the imprisonment is proved or
admitted, the burden of justifying it is on
the defendant. Metealf, J., in Bassett v.
Porter, 10 Cush. 420.]
* Borthwick v. Carruthers, 1 T. R.
648.
^ Case of the Banbury Peerage, 2 Selw.
N. P. (by Wheaton) 558 ; Morris u. Da-
vies, 3 Car. & P. 513.
^ Attorney-Gen. v. Parnther, 3 Bro. C.
C. 441, 443, per Lord Thurlow ; cited with
approbation in WMte v. Wilson, 13 Ves.
87, 88 ; Hoge v. Fisher, 1 Pet. C. C. R
163.
' Throgmorton v. Walton, 2 Roll R.
461 ; Wilson v. Hodges, 2 East, 313 ; su-
pra, § 41.
8 Crowley v. Page, 7 C. P. 790 ; Smith
V. Davies, Id. 307 ; Clarke v. Spence, 10
Watts, R. 335; Story on Bailm. §§ 454,
457, note (3d edit.) ; Brind v. Dale, 8 C.
& P. 207. See further, as to the right to
begin, and, of course, the burden of proof,
Pontifex v. Jolly, 9 C. & P. 202 ; Harnett
V. Johnson, Id. 206 ; Aston v. Perkes, Id.
231 : Osborn v. Thompson, Id. 337 ; Bing.
ham V. Stanley, Id, 374 ; Lambert v. Hale,
Id. 506 ; Lees v. Hoffstadt, Id. 599 ; Chap
man v. ILmden, Id. 712 ; Doe v. Rowlands,
Id. 734; Ridgway v. Ewbank, 2 M. &
Rob. 217 ; Hudson v. Brown, 8 C. & P.
774; Sowardw. Leggatt, 7 C. & P. 613;
Bowles V. Neale, Id. 262 ; Richardson u.
Fell, 4 Dowl. 10 ; Silk v. Humphrey, 7 C
& P. 14.
CHAP. III.] THE BOKDEN OF PHOUF. 95
want of a due stamp is alleged, there being faint traces of a stamp
of some kind ; i or, where a failure of consideration is set up by the
plaintiff, in an action to recover tlie money paid;^ or,' where the
action is founded on a deficiency in the quantity of land sold, and
the defendant alleges, in a special plea, thai there was no defi-
ciency ; 3 the burden of proof is on the party making the allegation,
notwithstanding its negative character.
[ § 81a. In actions upon promissory notes ol- bills of exchange, if it be shown that
they were stolen, or otherwise fraudulently put in circulation, the burden of proof is
on the holder to show that he took them in good faith. Monroe v. Cooper, 5 Pick.
412 ; Worcester Co. Bank v. Dorchester, &c. Bank, 10 Cush. 488, 491 ; Wyer v. Dor-
chester, &c. Bank, 11 Cush. 52; Bissell v. Morgan, lb. 198 ; Fabens v. Tirrell, 15 Law
Reporter (May, 1852), 44; Perrin v. Noyes, 39 Maine, 384; Goodman v. Harvey, 4
Ad. & El. 870 ; Arbourn v. Anderson, 1 Ad. & El. N. K. 504. According to recent
decisions, that burden is very light. Worcester Co. Bank v. Dorchester, &c. Bank ,
Wyer v. Dorchester, &c. Bank, ubi supra. But where the action is by the holder of a
bank-bill, and the defendant proves it to have been stolen, the plaintiff is not bound to
show how he came by the bill, to enable him to recover upon it, but the defendants, to
defeat the plaintiff's right to recover upon it, must show that he received it under such
circumstances as to prevent the maintenance of his action. Wyer v. Dorchester, &c.
Bank, ubi supra ; Solomons v. Bank of England, 13 East, 135, note ; De la Chaumette
V. Bank of England, 2 Barn. & Adolph. 385.
§ 816. It would seem to be the true rule in criminal cases, though there are some
decisions to the contrary, that the burden of proof never shiffs, but that it is upon
the government tlu'oughout ; and that in all cases, before a conviction can be had, the
jury must be satisfied, upon aU the evidence, beyond a reasonable doubt, of the af
firmative of the issue presented by the government, to wit, that the defendant is guilty in
manner and form as charged in the indictment. The opinion of the court, by Bige-
low, J., in the case of Commonwealth v. McKie, 1 Gray, 61-65, contains an accept-
able and very able exposition of the general rule of law as to the burden of proof iu
criminal cases, but it is too extensive to be here inserted.
§ 81c. Although the above decision is carefully limited to that precise case, yet it
would seem that its principle would cover all cases, including those in which the de-
fendant relies on some distinct substantive ground of defence not necessarily connected
with the transaction on which tlie indictment is founded, as insanity for instance. For in
every case the issue which the government presents is the guilt of the defendant, and
to prove this the jury must be satisfied not only that the defendant committed the act
constituting the corpus delicti, but also that at the time of the commission thereof, he
had intelligence and capacity enough to have a criminal intent and purpose ; because,
" if his reason and mental powers are either so deficient that he has no will, no con-
science or conti-oUing mental power, or if, through the overwhelming violence of men-
tal disease, liis intellectual power is for the time obhteratcd, he is not a responsible
mor,al agent, and is not punishable for criminal acts." By Shaw, 0. J., in Common-
wealth V. Rogers, 7 Met. 501 ; see Commonwealth v. Hawkins, 3 Gray, 465 ; 1 Ben-
nett & Heard's Lead. Crim. Cases, 87, note to Commonwealth v. Rogers, and p. 347,
1 Doe u. Coombes, 3 Ad. & El. n. s. ' McCrea v. Marshall, 1 Louis. An
687. R. 29.
2 Treat v. Orono, 18 Shepl. 217.
96 LAW OF EVIDENCE. [PART II
note to Commonwealth v. McKie. And if the burden is on the government thus to
satisfy the jury, it is difficult to see why the rule of proof beyond a reasonable doubt
does not apply ; and why a reasonable doubt of the sanity of the defendant should
not require the jury to acquit.
In the more recent case of Commonwealth v. Eddy, 7 Gray, 583, which was an in-
dictment against the defendant for the murder of his wife, and in which the insanity of
the defendant was pressed to the jury as a defence, the court instructed the jury in
substance that the burden of proof was on the goremment throughout, and did not
sliift ; although, so far as the sanity of the defendant was concerned, the burden was
sustained by the legal presumption that all men are sane, which presumption must
stand until rebutted by proof to the contrary, satisfactory to the jury.
CHAP. ly.l THE BEST EVIDENCE. 9T
CHAPTEE TV.
OP THE BEST EVIDENCE.
I * § 82. The test class or kind of eyidence, in the power of the party, must be pro-
duced.
83 and 92. But proof that one acted, and was recognized as an ofScer, will be suf-
ficient.
84. Evidence is primary and secondary. Distinction considered.
85. This distinction has reference to the substitution of oral for written evidence.
86. Where the law requires a transaction to be by writing, it cannot be proved
by other evidence.
87. All contracts reduced to writing, when directly in issue, must be produced.
88. All writings material to the issue or the credit of witnesses must be produced.
89. But where the writing is collateral merely, its production is not required.
90. Writings merely suppletory, or not admissible for want of a stamp, do not ex-
clude oral proof All the impressions of same type, originals.
91. Eecords and public documents proved by examined copies.
93. General results from voluminous docranents may be proved orally.
94. Inscriptions on monuments proved orally.
95. In examinations on voir dire, documents need not be produced.
96. The party's admission of the existence of a writing admissible, but not as to
its nature.
96. The rule carried further in some cases. No restriction upon cross-examina-
tion.
97. Numerous apparent exceptions to the foregoing rule.]
§ 82. A FOURTH EDLE, -whicli governs in the production of
evidence, is that which requires the best evidence of which the case
in its nature is susceptible. This rule does not demand the great-
est amount of evidence which can possibly be given of any fact ;
but its design is to prevent the introduction of any, which, from
the nature of the case, supposes that better evidence is in the
possession of the party. It is adopted for the prevention of fraud ;
for when it is apparent that better evidence is withheld, it is fair
to presume that the party^had some sinister motive for not pro-
ducing it, and that, if offered, his design would be frustrated.^
The rule thus becomes essential to the pure administration of
justice. In requiring the production of the best evidence appli-
1 Falsi prsesumptio est contra eum, qui mentis probare potest. Henoch. Consil.
teatibus probare conatur id quod instru- 422, n. 125.
VOL. I. 9
98 T,AW OF EVIDENCE. [PART H.
cable to each particular fact, »* is meant, that no evidence shall
be received which is merely substitutionary in its nature, so long
as the original evidence can be had. The rule excludes only that
evidence which itself indicates the existence of more original
sources of information. But where there is no substitution of
evidence but only a selection of weaker, instead of stronger proofs,
or an omission to supply all the proofs capable of being produced,
the rule is not infringed.^ Thus, a title by deed must be proved
by the production of the deed itself, if it is within the power of
the party ; for this is the best evidence of wliich the case is sus-
ceptible ; and its non-production would raise a presumption, that
it contained some matter of apparent defeasance. But, being
produced, the execution of the deed itself may be proved by only
one of the subscribing witnesses, though the other also is at hand.
And even the previous examination of a deceased subscribing
witness, if admissible on other grounds, may supersede the neces-
sity of calling the survivor.^ So, in proof or disproof of hand-
writing, it is not necessary to call the supposed writer liimself.^
And even where it is necessary to prove negatively, that an act
was done without the consent, or against the will of another, it is
not, in general, necessary to call the person whose will or consent
is denied.*
§ 83. All rules of evidence, however, are adopted for practical
purposes in the administration of justice ; and must be so applied
as to promote the ends for which they were designed. Thus, the
rule under consideration is subject to exceptions, where the general
convenience requires it. Proof, for example, that an individual
has acted notoriously as a public officer, is primd facie evidence
of his official character, without producing his commission or
appointment.^
1 Phil. & Am. on Evid. 438 ; 1 Phil. 352, 367 ; Eex v. Gordon, 2 Leach, Cr. C.
Erid. 418 ; 1 Stark. Evid. 437 ; Glassford 581, 585, 586 ; Rex v. SheUey, Id. 381, n. ;
on Evid. 266-278 ; Tayloe v. Riggs, 1 Jacob v. United States, 1 Brockcnb. 520 ;
Peters, 591, 596; United States v. Rey- Miluor v. TiUotson, 7 Peters, 100, 101;
burn, 6 Peters, 352, 367 ; Minor v. Tillot- Berryman v. Wise, 4 T. R. 366 ; Bank of
son, 7 Peters, 100, 101; [ * Shoenbergher U. States v. Dandridge, 12 Wheat. 70;
». Hackman, 37 Penn. St. 887]. Doe w.. Brawn, 5 B. & A. 243 ; Cannell v.
2 Wright V. Tathatn, 1 Ad. & ^1. 3. Curtis, 2 Bing. N. C. 228, 234 ; Rex v.
[See infra, § 569-575.] Verelst, 3 Campb. 432 ; Rex v. Howard,
8 Hughes' case, 2 East, P. C. 1002 ; 1 M. & Rob. 187 ; McGahey v. Alston, 2
MaGuire's case, lb. ; Rex v. Benson, 2 M. & W. 206, 211 ; Regina v. Vickery, 12
Campb. 508. Ad. & El. 478, n. s. ; infra, § 92. But
* Supra, § 77 ; Rex v. Hazy & Collins, there must be some color of right to the
2 C. & P. 468. office, or an acquiescence on the part of
' United States v. Reyburn, 6 Peters, the public for such length of time as wUl
CHAP. IV.J THE BEST EVIDENCE. 99
§ 84. This rule naturally leads to the division of evidence into
Peimaey and Secondary. Primary evidence is that which we have
just mentioned as the best evidence, or that kind of proof which,
under any possible circumstances, affords the greatest certainty
of the fact in question ; and it is illustrated by the case of a written
document ; the instrument itself being always regarded as the
primary or best possible evidence of its existence and contents.
K the execution of an instrument is to be proved, the primary
evidence is the testimony of the subscribing witness, if there be
one. Until it is shown that the production of the primary evi-
dence is out of the party's power, no other proof of the fact is in
general admitted.^ All evidence falling short of this in its degree
is termed secondary. The question, whether evidence is primary
or secondary, has reference to the nature of the case in the abstract,
and not to the peculiar circumstances under which the party in
the particular cause on trial may be placed. It is a distinction
of law, and not of fact ; referring only to the quality, and not to
the strength of the proof. Evidence which carries on its face no
indication that better remains behind is not secondary, but
primary. And though all information must be traced to its
source, if possible, yet if there are several distinct sources of
information of the same fact, it is not ordinarily necessary to show
that they have all been exhausted, before secondary evidence can
be resorted to.^
authorize the presumption of at least a and satisfactory first to show that nothing
colorable election or appointment. Wil- better is in his power, is a question which
cox V. Smith, 5 Wend. 231, 234. This is not yet perfectly settled. On the one
rule is applied only to public offices. _ hand, the affirmative is urged as an equi-
Where the office is private, some proof" table extension of the principle which
must be offered of its existence, and of postpones all secondary evidence, until the
the appointment of the agent or incum- absence of the primary is accounted for ;
bent. Short v. Lee, 1 Jac. & W. 464, 468. and it is said that the same reason which
[ Where a note was indorsed by a person requires the production of a writing, if
as president of an incorporated insurance within the power of a party, also requires
company, the indorsee may prove by parol that, if the writing is lost, its contents
that he acted as president, and need not shall be proved by a copy, if in existence,
produce the records of the company to rather than by tlie memory of a witness
show his election. Cabot v. Given, 45 who has read it ; and that tl:e setimdjuy
Maine, 144. J proof of a lost deed ought to be marshalled
1 Sebrne v. Dorr, 9 Wheat. 558,563; into, first, the counterpart; secondly, a
Hart V. Yant, 1 Watts,' 253. copy; thirdly, the abstract, &c. ; and, last
2 Cutbush V. Gilbert, 4 S. & R. 555; of all, the memory of a witness. Ludlam,
United States v. Gilbert, 2 Sumn. 19, 80, ex dm. Hunt, Loffl;, R. 362. On the other
81 ; Phil. & Am. on Evid. 440, 441 ; 1 Phil, hand, it is said that this argument for the
Evid. 421. Whether the law recognizes extension of the rule confounds aU dis-
any degrees in the various kinds of sec- tinction between the weight of evidence
ondary evidence, and requires the party and its logal admissibility ; that the rule
otFering that which is deemed less certain is founded upon the nature of the evidence
100
LAW OF EVIDENCE.
[PAET n.
§ 85. The cases which most frequently call for the application
of the rule now under consideration, are those which relate to the
offered, and not upon its strength or weak-
ness ; and that, to carry it to the length of
establishing degrees in secondary evidence,
as fixed rules of law, would often tend to
the subversion of justice, and always be
productive of inconvenience. If, for ex-
ample, proof of the existence of an abstract
of a deed will exclude oral evidence off
contents, this proof may be withheld
tlie adverse party until the moment
trial, and the other side be defeated, or th<
cause be greatly delayed ; and the same'
mischief may be repeated, through all the
different degrees of the evidence. It is
tlierefore insisted, that the rule of exclu-
sion ought to be restricted to such evi^
dence only, as, upon its face, disdfoses.t"
existence of better proof; and thaf)^l[h\
the evidence is not of this natur(
be received, notwithstanding it i*a;
shown from other sources that the\)al
might have offered that which was mol
satisfactory ; leaving the weight of the Wj
dence to be judged of by the jury, unob
aJl the circumstances of the <;ase. See 4
Monthly Law Mag. 265-279. -Among the
eases cited in support of the ^fllrmative
side of the question, there is n'o one in
which this particular point appears^to have
been expressly adjudged, though in seve-
ral of them, as in Sir E. Seymom-'s case,
10 Mod. 8 ; Villiers v. Yilliers, 2 Atk. 71 ;
Kowlandson v. Wainwright, 1 Nev. & Per.
8 ; and others, it has been passingly ad-
verted to as a familiar doctrine of the law.
On the other hand, the existence of any
degrees in secondary evidence was doubted
by Patterson, J., in Rowlandson v. Wain-
wright ; tacitly denied by the same judge,
in Coyle v. Cole, 6 C. & P. 359, and by
Parke, J., in Eex v. Fursey, C. & P. 81 ;
and by the court, in Eex v. Hunt et al. 3
B. & Aid. 506 ; and expressly denied by
Parke, J. , in Brown v. Woodman, 6 C. &
P. 206. See also Hall v. Ball, 3 Scott, N.
JR. 577. And in the more recent case of
Doe d. Gilbert v. Ross, in the Exchequer,
where proper notice to produce an original
dociim^'nt ' ad been given without success,
it Will held, that the party giving the notice
was no' afterwards restricted as to the na-
ture of the secondary evidence he would
produce of the contents of the document ;
and, therefore, having offered an attested
copy of the deed in that case, which was
inadmissible in itself for want of a stamp,
it was held, that it was competent for him
to abandon that mode of proof, and to
resort to parol testimony, there being no
degrees in secondary evidence; for wlien
once the original is accounted for, any sec-
ondary evidence whatever may be resorted
to by the party seeking to use the same.
See Doe v. Ross, 8 Dowl. 889 ; 7 M. & W.
102, s. 0. ; Doe v. Jack, 1 Allen, 476, 483.
The American doctrine, as deduced from
various authorities, seems to be this ; that
if, fi'om the nature of the case itself, it is
manifest that a more satisfactory kind of
secondary evJde3»ce exists, the party wiU
be requtrec^to produce it ; but that, where
of /he case does not of itself
tence of such better evi-
(ecftor must not only prove its
ilso must prove that it was
other party in season to '
/reduced at the trial. Thus,
Record of a conviction was de-
ral proof of its existence was
^lause the law required a tran-
''to be sent to' the Court of Exche-
Sf which was better evidence. Hilts v,
Ifolvin, 14 Johns. 182. So, a grant of let-
ters of administration was presumed after
proof, from the records of various courts,
of the administrator's recognition there,
and liis acts in that capacity. Battles v.
Holley, 6 Greenl. 145. And where the
record books were burnt and mutilated, or
lost, the clerk's docket and the journals of
the judges have been deemed the next
best evidence of the contents of the rec
ord. Cook v. Wood, 1 McCord, 139
Lyons v. Gregory, 3 Hen. & Munf 237 ;
Lowry v. Cady, 4 Vermont, 504 ; Doe v
Greenlee, 3 Hawks, 281. In all these and
the like cases, the nature of the fact to be
proved plainly discloses the existence of
some evidence in writing, of an ofSciid
character, more satisfactory than mere
oral proof; and therefore the production
of such evidence is demanded. Such,
also, is the view taken by Ch. B. Gilbert.
See Gilb. Evid. by Loift, p. 5. See also
Collins V. Maule, 8 C. & P. 502 ; Evering-
ham V. Roundell, 2 M. & Rob. 138 ; Har-
vey V. Thomas, 10 Watts, 63. But where
there is no ground for legal presumption
that better secondary evidence exists, any
proof is received, which is not inadmissi-
ble by other rules of law ; unless the ob-
jecting party can show that better evidence
was previously known to the other, and
might have been produced ; thus subject-
ing him, by positive proof, to the same
imputation of fraud which the law itself
presumes, when primary evidence is with-
held. Thus, where a notarial copy was
called for, as the best evidence of the con-
tents of a lost note, the court held, that it
was sufficient for the party to prove the
note by the best evidence actually in liis
CHiP. IV.]
THE BEST EVIDENCE.
substitution of oral for written evidence ; and they may be arrange*
into three classes : including in the first class those instruments
which the law requires should be in writing; — in the second,
those contracts which the parties have put in writing ; — and in
the third, all other writings, the existence of which is disputed,
and which are material to the issue.
§ 86. In the first place, oral evidence cannot be substituted for
any instrument which the law requires to be in writing ; such as
records, public documents, official examinations, deeds of convey-
ance of lands, wills, other, than nuncupative, promises to pay the
debt of another, and other writings mentioned in the Statute of
Frauds. In all these cases, the law having required that the
evidence of the transaction should be in writing, no other proof
can be substituted for that, as long as the writing exists, and is
power ; and that to require a notarial copy,
would be to demand that of the existence
of which there was no evidence, and whicli
the law would not presume was in the
power of the party, it not being necessary
that a promissory note should be protested.
Eenner v. the Bank of Columbia, 9 Wheat.
582, 587 ; Denn v. McAlhster, 2 Halst.
46, 53 ; United States v. Britton, 2 Mason,
464, 468. But where it was proved that a
copy existed of a note, he was held bound
to prove it by the copy. 2 Mason, 468.
But if the party has voluntarily destroyed
the instrument, he is not allowed to prove
its contents by secondary evidence, until
he has repelled every inference of a frau-
dulent design in its destruction. Blade v.
Noland, 12 Wend. 173. So, where the
subscribing witness to a deed is dead, and
his handwriting cannot be proved, the next
best evidence is proof of the handwriting
of the grantor, and this is therefore re-
quired. Clark V. Courtney, 5 Peters, 319.
But in New York, proof of the handwrit-
ing of the witness himself is next de-
manded. Jackson v. Waldron, 18 Wend.
178. See infra, § 575. But where a deed
was lost, the party claiming under it was
not lield bound to call, the subscribing wit-
nesses, unless it could be shown that he
previously knew who they were. Jack-
son V. Vail, 7 Wend. 125. So it was ruled
by Lord I^enyon, in Keeling v. Ball,
Peake's Evid. App. Ixxviii. In Gillies v.
Smitlier, 2 Stark R. 528, this point does
not seem to have been considered ; but the
case turned on the state of the pleadings,
and tlie want of any proof whatever, that
the bond in question was ever executed
by tlie intestate, f* This rule of evi-
dence does not require proof of the loss of
the primary evidence beyond possibility of
mistake; but only toamoralcertainty. Mr.
Justice Campbell in United States v. Sut-
ter, 21 How. U. S. 170, 176. The idea is
suggested in a case in New York, Hub-
bard V. Eussell, 24 Barb. 404, that two let-
ters written at the same time to the same
person, one being the exact counterpart of
tlie other, may both be regarded as origi-
nals ; and where one is sent, and the other
retahied, that the latter may be given in
evidence without notice to produce the
other. That might be true if the fact to
be proved were merely the writing of the
letters. But where, as is commonly the
case, the point to be reached is the send-
ing or receipt of the letter to or by another,
a letter not sent could only be used as a
copy. And if the letter sent was in fact
a copy of that retained, it would, by the
fact of being used for that purpose, become
the original. We attempted to illustrate
this point in Durkee v. Vermont Central
Railway, 29 Vt. Rep. 127, with reference
to contracts created by telegraphic corre-
spondence. It is there held, that where a
telegraphic communication is relied on to
estabhsh a contract, it must be proved as
other writings are, by the production of
the original. If that is lost, it may be
proved by a copy if there is one, and if
there is not, by oral testimony respecting
it. The original, where the person to
whom it is sent takes the risk of its trans-
mission, or is the employer of the tele-
graph, is the message delivered to the
operator. But where the person sending
the message takes the initiative, so that
the telegraph is to •be regarded as his
agent, the original is the message actually
delivered at the end of the line.]
9*
102 LAW OF EVIDENCE. [PABT H.
in the power of the party. And where oaths are required to be
taken in open court, where a record of the oatli is made, or before
a particular officer, whose duty it is to certify it; or where an
appointment to an additional office is required to be made and
certified on the back of the party's former commission ; the written
evidence must be produced.^ Even the admission of the fact, by
a party, unless solemnly made, as a substitute for other proof, ^
does not supersede direct proof of matter of record by which it
is sought to affect him ; for the record, being produced, may be
found irregular and void, and the party might be mistaken.^
Where, however, the record or document appointed by law is not
part of the fact to be proved, but is merely a collateral or siibse-
quent memorial of the fact, such as the registry of marriages and
births, and the like, it has not this exclusive character, but any
other legal proof is admitted.*
§ 87. In the second place, oral proof cannot be substituted for
the written evidence of any contract which the parties have put in
writing. Here, the written instrument may be regarded, in some
measure, as the ultimate fact to be proved, especially in the cases
of negotiable securities ; and in all cases of written contracts, the
writing is tacitly agreed upon, by the parties themselves, as the
only repository and the appropriate evidence of their agreement.
The written contract is not collateral, but is of the very essence
of the transaction.^ If, for example, an action is brought for use
1 Rex V. Hute, Peake's Cas. 132 ; Bas- u.Wyant, 3 H. & McH. 398 ; 2 Stark. Evid.
sett V. Marshall, 9 Mass. 312; Tripp v. 571; Rex «. Allison, R. & R. 109; Read
Garey, 7 Greenl. 266 ; 2 Stark. Evid. 570, v. Passer, Peake's Cas. 231. [So, where
671 ; Dole v. Allen, 4 Greenl. 627. [In a grantee at the time of receiying a deed
an action against the selectmen of a town of land, agreed by parol that the grantor
for refusing to receive the vote of the might continue to exercise a right of way
plaintiff, an inhabitant of the town, parol over the land, the evidence was held ad-
evidence that the plaintiff's name was on missible, not because a right of way can
the voting list used at the election is inad- be created by a parol grant, but to show
missible without first giving notice to pro- that the grantor's subsequent possession of
duce the list, such list being an official such easement commenced under a claim
document. Harris v. Wliitcomb, 4 Gray, of right. Ashley v. Ashley, 4 Gray, 199.]
433. ] [ * There will be recognized no ^ The principles on which a writing is
degrees in the same class of secondary deemed part of the essence of any trans-
ovidence. Carpenter v. Dame, 10 Ind. action, and consequently the best or pri-
125. But see Harvey v. Thorpe, 28 Ala. mary proof of it, are thus explained by
260.] Domat : " The force of written proof con-
2 See supra, § 27 ; infra, §§ 169, 170, sists in this ; men agree to preserve by
186, 204, 205. writing the remembrance of past events,
8 Scott V. Clare, 3 Campb. 236 ; Jenner of which they wish to create a memorial,
I'. Jolliffe, 6 Johns. 9 ; Welland Canal Co. either with a view of laying down a rule
V. Hathaway, 8 Wend. 480 ; 1 Leach, Cr. for their own guidance, or in order to have,
C. 349 ; 2 Id. 625, *35. in the instrument, a lasting proof of the
* Commonwealth v. Norcross, 9 Mass. truth of what is written. Thus contracts
492; Ellis !). Ellis, 11 Mass. 92; Owings are written, in order to preserve theme-
CHAP. IV.] THE BEST EVIDENCE. 103
and occupation of real estate, and it appears by the plaintiff's
'own showing that there was a written contract of tenancy, he
must produce it, or account for its absence ; though, if he were to
make out a primd facie case, without any appearance of a written
contract, the burden of producing it, or at least of proving its
existence, would be devolved on the defendant.^ But if the fact
of tlie occupation of land is alone in issue without respect to the
terms of the tenancy, this fact may be proved by any competent
oral testimony, such as payment of rent, or declarations of the
tenant, notwithstanding it appears that the occupancy was under
an agreement in writing ; for here the writing is only collateral
to the fact in question.^ The same rule applies to every other
species of written contract. Thus, where in a suit for the price
of labor performed, it appears that the work was commenced
under an agreement in writing, the agreement must be produced ;
and even if the claim be for extra work, the plaintiff must stiU
produce the written agreement ; for it may furnish evidence, not
only that the work was over and beyond the original contract, but
also of the rate at which it was to be paid for. So, in an indict-
ment for feloniously setting fire to a house, to defraud the in-
surers, the policy itself is the appropriate evidence of the fact of
insurance, and must be produced.^ And the recorded resolution
of a charitable society, under which the plaintiff earned the
salary sued for, was on the, same principle held indispensably
necessary to be produced.* I The fact, that in such cases the writ-
ing is in the possession of me adverse party, does not change its
character ; it is Still the primary evidence of the contract ; and
its absence must be accounted for, by notice to the other party to
morialof what the contracting parties have themselves, that is, by the inspection of
prescribed for each other to do, and to the originals." See Domat's Civil Law,
make for themselves a fixed and immutar Liv. 3, tit. 6, § 2, as translated in 7 Month-
ble law, as to what has been agreed on. ly Law Mag. p. 73.
So, testaments are written, in order to pre- ^ Brewer v. Palmer, 3 Esp. 213 ; con-
serve the remembrance of what the party, firmed in Ramsbottom v. Tunbridge, 2 M.
who has ariglit to dispose of his property, & S. 434; Eex v. Rawden, 8 B. & C. 708 ;
has ordained concerning it, and thereby Strother u. Barr, 5Bing. 136, perParke, J.
lay down a rule for the guidance of his [* Magnay v. Knight, 1 M. & Gr. 944.]
heirs and legatees, On the same principle ^ Eex v. Inhabitants of Holy Trinity,
are reduced into writing all sentences, 7 B. & C. 611 ; Doe v. Harvey, 8 Bing.
judgments, edicts, ordonnances, and other 239, 241 ; Spiers v. WUlison, 4 Cranch,
matters, wliich either confer title, or have 398 ; Dennet v. Crocker, 8 Greenl. 239,
the force of law. The writing preserves, 244.
unchanged, the matters intrusted to it, ^ Eex v. Doran, 1 Esp. 127; Eex v,
and expresses the intention of the parties Gilson, Euss. & Ry.' 188.
by their own testimony. The truth of * Whitford d, Tuthi e< aZ. lOBing. 395;
written acts is established by the acts Molton v. Harris, 2 Esp. 649.
104 LAW OF EVIDENCE. [PART H.
produce it, or in some other legal mode, before secondary evidence
of its contents can be received.^
§ 88. In the third place, oral evidence cannot be substituted
for any writing, the existence of which is disputed, and which is
material either to the issue letween the parties, or to the credit of
witnesses, and is not merely the memorandum of some other fact.
For, by applying the rule to such cases, the court acquires a
knowledge of the whole contents of the instrument, which may
have a different effect from the statement of a part.^ " I have
always," said Lord Tenterden, " acted most strictly on the rule,
that what is in writing shall only be proved by the writing itself.
My experience has tauglit me the extreme danger of relying on
the recollection of witnesses, however honest, as to the contents of
written instruments ; they may be so easily mistaken, that I think
the purposes of justice require the strict enforcement of the rule." ^
Thus, it is not allowed, on cross-examination, in the statement
of a question to a witness, to represent the contents of a letter,
and to ask the witness whether lie wrote a letter to any person
with such contents, or contents to the like effect ; without having
first shown the letter to the witness, and having asked him whether
he wrote that letter, because, if it were otherwise, the cross-
examining counsel might put the court in possession of only a
part of the contents of a paper, when a knowledge of the whole
was essential to a right judgment in the cause. If the witness
acknowledges the writing of the letter, yet he cannot be questioned
as to its contents, but the letter itself must be read.* And if
a witness being examined in a foreign country, upon interrogato-
ries sent out with a commission for that purpose, should in one
of his answers state the contents of a letter which is not produced ;
that part of the deposition will be suppressed, notwithstanding,
he being out of the jurisdiction, there may be no means of com-
pelling him to produce the letter.^
§ 89. In cases, however, where the written communication or
agreement between the parties is collateral to the question in issue,
1 See further, Rex v. Eawden, 8 B. & ^ So held by all the judges in the
C. 708; Sebree v. Dorr, 9 Wheat. 558; Queen's case, 2 Brod. &,Bing. 287. See
Bullock V. Koon, 9 Cowen, 30; Mather v. also Phil. & Am. on Evid. 441 ; 1 Phil.
Goddard, 7 Conn. 304 ; Rank v. Shewey, Evid. 422.
4 Watts, 218 ; Northrup v. Jackson, 13 » Vincent v. Cole, 1 M. & M. 258.
Wend. 86 ; Vinal v. Burrill, 16 Pick. 401, * The Queen's case, 2 B. & B. 287 ; in-
407, 408; Lanauze v. Palmer, 1 M. & M. fra, § 463.
81. ' Steinkeller v Newton, 9 C. & P. 313
CHA.P. IV.] THE BEST EVIDENCE. 105
it need not be produced ; as, where the writing is a mere proposal,
which has not been acted upon ; ^ or, where a written memorandum
was made of the terms of the contract, which was read in the
presence of tlie parties, but never signed, or proposed to be
signed ; ^ or, where, during an employment under a written con-
tract, a separate verbal order is given ;^ or, where the action is
not directly upon the agreement, for non-performance of it, but
is in tort, for the conversion or detention of the document itself;*
or, where the action is for the plaintiff's share of money had and
received by the defendant, under a written security for a debt due
to them both.^
§ 90. But where the writing does not fall within either of the
three classes already described, there is no ground for its exclud-
ing oral evidence. As, for example, if a written communication
be accompanied by a verbal one, to the same effect, the latter may
be received as independent evidence, though not to prove the
contents of the writing, nor as a substitute for it. .Thus, also,
the payment of money may be proved by oral testimony, though
a receipt be taken ; ^ in trover, a verbal demand of the goods is
admissible, though a demand in writing was made at the same
time ; ^ the admission of indebtment is provable by oral testimony,
though a written promise to pay was simultaneously-given, if the
paper be inadmissible for want of a stamp.^ Such, also, is the
case of the examination and confession of a prisoner, taken down
in writing by the magistrate, but not signed and certified pursuant
to the statutes.^ And any writing inadmissible for the want of
a stamp, or other irregularity, may still be use'd by the witness
who wrote it, or was present at the time, as a memorandum to
1 Ingram v. Lea, 2 CarapT). 521 ; Earns- er v. Welsh, 17 Mass. 165 ; McFadden v.
bottom V. Tunbridge, 2 M. & S. 434 ; Ste- Kingsbury, 11 Wend. 667 ; Southwick v.
pliens V. I'inney, 8 Taunt. 327 ; Doe v. Stephens, lo Johns. 443. [Where a writ-
Cartwright, 3 B. & A. 326 ; Wilson v. ing does not purport to contain the entire
Bowie, 1 C. & P. 8 ; Hawkins v. Warre, 3 contract between parties, additional terms
B. & C. 690. may be shoivn by parol. Webster v.
2 Trmvhittt). Lambert, 10 Ad. & El. Hodgkins, 5 Foster (N. H.), 128.]
470. " Eambcrt v. Cowen, 3 Esp. 213 ; Ja-
3 Reid V. Battle, M. & M. 413. cob v. Lindsay, 1 East, 460 ; Doe v. Cart
< Jolley V. Taylor, 1 Campb. 143 ; Scott wright, 3 B. & A. 32G.
V. Jones 8 Taunt. 865 ; How v. Hall, 14 ' Smith v. Young, 4 Campb. 439.
East, 274 ; Bucher v. Jarratt, 3 B. & P. « Singleton v. Barrett, 2 Cr. & Jer. 368.
143; Whitehead v. Scott, 1 M. & Kob. 2; « Lambe's case, 2 Leach, 625; Eex v.
Koss V. Bruce, 1 Day, 100 ; The People v. Chappel, 1 M. & Rob. 395, 396, n. ; 2 Phil.
Holbrook, 13 Johns. 90 ; McLean ». Hert- Evid. 81, 82; Koscoe's Crim Kvi'l. 46,
zog, 6 S. & R. 154. 47.
' Baynew. Stone,4Esp. 13. See Tuck-
106 LAW OF EVIDENCE. [PABT U.
refresh his own memory, from which alone he is supposed to tes-
tify, independently of the written paper.^ In like manner, in
prosecutions for political offences, such as treason, conspiracy, and
sedition, the inscription qn flags and banners paraded in public,
and the contents of resolutions read at a public meeting, may be
proved as of the nature of speeches, by oral testimony ; ^ and in
the case of printed papers, all the impregsions are regarded as
originals, and are evidence against the person who adopts the
printing by taking away copies.^
§ 91. The rule rejecting secondary evidence is subject to some
exceptions; grounded either on public convenience, or on the
nature of the facts to be proved. Thus, the contents' of any
record of a judicial court, and of entries in any other public hooks
or registers, may be proved by an examined copy. This exception
extends to all records and entries of a public nature, in books
required by law to be kept ; and is admitted because of the incon-
venience to tlie public which the removal of such documents
might occasion, especially if they were wanted in two places at
the same time ; and also, because of the public character of the
facts they contain, and the consequent facility of detection of any
fraiid or error in the copy.*
§ 92. For the same reasons, and from the strong presumption
arising from the undisturbed exercise of a public office, that the
appointment to it is valid, it is not, in general, necessary to prove
the written appointments of public officers. All who are proved to
have acted as such are presumed to have been duly appointed
to the office, until the contrary appears ; ^ and it is not material
how the question arises, whether in a civil or criminal case, nor
1 Dalison v. Stark, 4 Esp. 163 ; Jacob 1 M. & Rob. 189. [A registry copy of
V. Lindsay, 1 East, 460 ; Maugham v. Hub- a deed of land is not admissible in evi-
baid, 8 B. & C. 14 ; Rex v. Tarrant, 6 C. dence against the grantee, without notice
& P. 182 ; Rex v. Pressly, Id. 183 ; Lay- to him to produce the original, the original
er's case, 16 HoweU's St. Tr. 223 ; infra, being presumed to be in his possession.
§§ 228, 436. Commonwealth v. Emery, 2 Gray, 80.
^ Rex V. Hunt, 3 B. & A. 566 ; Sheri- Where the originals are not presumed to
dan & Kirwan's ease, 31 HoweU's St. Tr. be in the possession of either party to the
672. suit, office copies of deeds are admissible.
8 Rex V. Watson, 2 Stark. R. 129, 130. Blanchard v. Young, 11 Cush. 345. See
1 Bull. N. P. 226 ; 1 Stark. Evid. 189, also Palmer v. Stevens, lb. 147-]
191. But this exception does not extend ^ An officer de facto is one who exerci-
to an answer in chancery, where the party ses an office under color of right, by vir-
is indicted for perjury therein ; for there tue of some appointment or election, or of
the origina". must be produced, in order to such acquiescence of the public as will
identify ths party, by proof of his hand- authorize the presumption, at least, of a
writing. The same reason applies to de- colorable appointment or election; being
positions and affidavits. Rex v. Howard, distinguished, on the one hand, &om a
CHAP. IV.] THE BEST EVIDENCE. 107
whether the officer is or is not a party to the record ; ^ unless
being plaintiff, he unnecessarily avers his title to the office, or the
mode of his appointment; in ■which case, as has been already
shown, the proof must support the entire allegation.^ These and
similar exceptions are also admitted, as not being within the
reason of the rule, which calls for primary evidence, namely, the
presumption of fraud, arising from its non-production. »
§ 93. A further relaxation of the rule has been admitted, where
the evidence is the result of voluminous facts, or of the inspection
Qimany hooks and papers, the examination of which could not con-
veniently take place in court.^ Thus, if there be one invariable
mode in which bills of exchange have been drawn between partic-
ular parties, this may be proved by the testimony of a witness
conversant with their habit of business, and speaking generally of
the fact, without producing the bills. But if the mode of dealing
has not been uniform, the case does not fall within this exception,
but is governed by the rule requiring the production of the writ-
ings.* So, also, a witness who has inspected the accounts of the
parties, though he may not give evidence of their particular con-
tents, may be allowed to speak to the general balance, without
mere usurper of office, and on the other N. s. ; Plumer v. Briscoe, 12 Jur. 351 ; 11
from an officer de jure. Wilcox v. Smith, Ad. & El. 46, N. s. ; Doe v. Toung, 8 Ad.
5 Wend. 231 ; Plymouth v. Painter, 17 & El. 68, N. s.
Conn. 585 ; Burke v. Elliott, 4 Ired. 355. ^ Supra, § 56 ; CanneU v. Curtis, 2
Proof that a person is reported to be and Bing. N. C. 228 ; Moises v. Thornton, 8 T.
has acted as a public officer is prima facie R. 303 ; The People v. Hopson, 1 Denio,
evidence, between third persons, of his 574. In an action by the sheriff for his
official character. McCoy v. Curtice, 9 poundage, proof that he has acted as sher-
Wend. 17. And to this end evidence is iff has been held sufficient prima facie evi
admissible, not only to show that he exer- dence that he is so, without proof of his
cised tlie office before or at the period in appointment. Bunbury v. Matthews, 1
question, but also, limited to a reasonable Car. & Kir. 380. But in New York it has
time, that he exercised it afterwards, been held otherwise. The People v, Hop-
Doe V. Young, 8 Ad. & El. 63, n. s. And son, supra.
see supra, § 83. [Cabot u. Given, 45 » Phil. & Am. on Evid. 445 ; 1 Phil.
Maine, 44.] Evid. 433, 434. The rules of pleading
1 Rex V. Gordon, 2 Leach's C. C. 581 ; have, for a similar reason, been made to
Berryman v. Wise, 4 T. R. 366 ; McGa- yield to public convenience in the admin-
hey V. Alston, 2 Mees. & Wels. 206, 211 ; istration of justice ; and a general allega.
Radford v. Mcintosh, 3 T. R. 632 ; Cross tion is ordinarily allowed, " when the mat
ti. Kaye, 6 T. R. 663 ; James v. Brawn, 5 ters to be pleaded tend to infinitenesa
B. & A. 243 ; Rex v. Jones, 2 Campb. and multiplicity, whereby the rolls shall
131 ; Rex v. Verelst, 8 Campb. 432. be encumbered with the length thereof."
A commissioner appointed to take affi- Mints v. Bethil, Cro. Eliz. 749 : Stephens
davits is a public officer, within this ex- on Pleading, 359, 360. Courts of Equity
ception. Rex v. Howard, 1 M. & Rob. admit the same ejcception in regard to
187. See supra, § 83 ; United States v. parties to bills, where they are numerous,
Eeyburn, 6 Peters, 352, 367 ; Regina on the like grounds of convenience. Story
V. Newton, 1 Car. & Kir. 869 ; Doe «. on Eq. PI. 94, 95, et seq.
Barnes, 10 Jur. 620; 8 Ad. & Kl 1037, * Spencer v. Billmg, 3 Campb. 310.
108 LAW OF EVIDENCE. [PART H.
producing the accounts.^ And where the question is upon the
solvency of a party at a particular time, the general result of an
examination of his books and securities may be stated in like
manner.^
§ 94. Under this head may be mentioned the case of inscriptions
on walls and fixed tables, mural monuments, gravestones, surveyors'
marJcs on boundary trees, &c., which, as they cannot conveniently
be produced in court, may be proved by secondary evidence.^
§ 95. Another exception is made, in the examination of a wit-
ness on the voir dire, and in preliminary inquiries of the same
nature. If, upon such examination, the witness discloses the exis-
tence of a written instrument affecting his competency, he may
also be interrogated as to its contents. To a case of this kind,
the general rule requiring the production of the instrument, or no-
tice to produce it, does not apply ; for the objecting party may
have been ignorant of its existence, until it was disclosed by the
witness ; nor could he be supposed to know that such a witness
would be produced. So, for the like reason, if the witness, on the
voir dire, admits any other fact going to render him incompetent,
the effect of which has been subsequently removed by a written
document, or even a record, he may speak to the contents of such
writing, without producing it ; the rule being that where the ob-
jection arises on the voir dire, it may be removed on the voir dire.^
If, however, the wiiaiess produces the writing, it must be read,
being the best evidence.^
1 Eoterts v. Doxon, Peake's Cas. 83. production is required. Thus, where it
But not as to particular facts appearing on was proposed to show the contents of a
the hooks, or deducible from the entries, printed notice, hung up in the office of the
Dupuy V. Truman, 2 Y. & C. 341. party, who was a carrier, parol evidence
2 Meyer v. Sefton, 2 Stark. R. 274. of its contents was rejected, it not being
[When books and documents introduced affixed to the freehold. Jones v. Tarlton,
in evidence at the trial are multifarious, 1 D. P. C. (n. s.) 625.
and voluminous, and of such a character * Phil. & Am. on Evid. 149 ; 1 Phil,
as to render it difficult for the jury to com- Evid. 1.54, 155 ; Butchers' Co. v. Jones, 1
prehend material facts, without schedules Esp. 160 ; Botham v. Swingler, Id. 164 ;
containing abstracts thereof, it is within Rex v. Gisburn, 15 East, 57 ; C.arlisle v
the discretion of the presiding judge to Eady, 1 C. & P. 234, note ; Miller v. Mar-
admit such schedules, verified by the iners' Church, 7 Greenl. 51 ; Sewell u.
testimony of the person by whom they Stubbs, .1 C. & P. 73.
were prepared, allowing the adverse party ' Butler v. Carver, 2 Stark. E. 434. A
an opportunity to examine them before the . distinction has been taken between cases,
case is submitted to the jury. Boston & where t)ie competency appe.Trs from the
W. R. R. Corp. V. Dana, 1 Gray, 83, 104. examination of the witness, and those
See also Holbrook v. Jackson, 7 Cush. where it is already apparent from the rec-
136.] ord, without his examination ; and it has
8 Doe V. Coyle, 6 C. & P. 360; Rex v. been held, that the latter case tails within
Fursey, Id. 81. But if they can conven- the rule, and not within the exception,
iently be brought into court, their actual and that th6 writing which restores tlio
CHAP. IV.] THE BEST EVIDENCE. 109
§ 96. It may be proper, in this place, to consider the question,
whether a verbal admission of the contents of a writing, hj the party
himself, wiU supersede the necessity of giving notice to produce it ;
or, in other words, whether such admission, being made against
the party's own interest, can be used as primary evidence of the
contents of the writing, against him and those claiming under
him. Upon this question, there appears some discrepancy in the
authorities at Nisi Prius.^ But it is to be observed, that there is
a material difference between proving the execution of an attested
instrument, when produced, and proving the party's admission,
that by a written, instrument, which is not produced, a certain act
was done. In the former case, the law is well settled, as we shall
hereafter show, that when an attested instrument is in court, and
its execution is to be proved against a hostile party, an admission
on his part, unless made with a view to the trial of that cause, is
not sufficient. This rule is founded on reasons peculiar to the
class of cases to which it is applied. A distinction is also to be
observed between a confessio juris and a confessio faoti. If the
admission is of the former nature, it falls within the rule already
considered, and is not received ; ^ for the party may not know the
legal effect of the instrument, and his admission of its nature and
effect may be exceedingly erroneous. But where the existence,
and not the formal execution, of a writing is the subject of inquiry,
or where the writing is collateral to the principal facts, and it is
on these facts that the claim is founded, the better opinion seems
to be, that the confession of the party, precisely identified, is
admissible as primary evidenco of the facts recited in the writing ;
though it is less satisfactory than the writing itself.^ Very great
weight ought not to be attached to evidence of what a party has
been supposed to have said; as it frequently happens, not only
competency must be produced. See ace. Shepl. 138. [In an action on a ivritten
Goodhay v. Hendry, 1 M. & M. 319, per contract, which is put in evidence, the
Best, C. J., and Id. 321, n., per Tindall, C. plaintiff cannot introduce the oral declara-
J. But see Carlisle v. Eady, 1 C. & P. tions of the defendant as to his supposed
234, per I'arke, J. ; Wandless v. Caw- liability ; since if the declarations varied
thorne, 1 M. & M. 321, n., per Parke, J., the terms of the written contract, they
contra. See 1 1'hil. Evid. 154, 155. were not competent testimony ; if they
1 Phil. & Am. on Evid. 363, 364 ; 1 did not, they were immaterial. GoodeU
Phil. Evid. 346, 347. See the Montlily v. Smith, 9 Cush. 592.]
Law Magazine, vol. 5, p. 175-187, where ^ Howard v. Smith, 3 Scott, N. R. 574;
this point is distinctly treated. [*See Smith ti. Palmer, 6 Cush. 515; [Slatterie
Taylor's Evidence, S§ 381-383.] w. Pooley, 6 Mees. & Wels. 664. See tn-
2 Supra, § 86 ; Miore v. Hitchcock, 4 fra, § 205.]
Wend. 262, 298, 299 ; Paine ". Tucker, 8
VOL. I 10
110 LAW OF EVIDENCE. [PART 11.
that the witness has misunderstood what the party said, but that,
by unintentionally altering a few of the expressions really used,
he gives an effect to the statement, completely at variance with
what the party actually did say.i Upon this distinction the ad-
judged cases seem chiefly to turn. Thus, where in an action by
the assignees of a bankrupt, for infringing a patent-right standing
in his name, the defendant proposed to prove the oral declaration
of the bankrupt, that by certain deeds an interest in the patentr
right had been conveyed by him to a stranger, the evidence was
properly rejected ; for it involved an opinion of the party upon
the legal effect of the deeds.^ On the other hand, it has been
held, that the fact of the tenancy of an estate, or that one person,
at a certain time, occupied it as the tenant of a certain other
person, may be proved by oral testimony. But if the terms of
the contract are in controversy, and they are contained in a writ-
ing, the instrument itself must be produced.^
[ * § 96«. Notwithstanding the decision in Slatterie v. Pooley,^
that the admission of a party is always receivable against him,
although it relate to the contents of a deed, or other written
instrument, and even though its contents be directly in issue in
the case, the proposition seems not to have met with universal
acquiescence. The Irish courts dissent from it.^ And the New
York courts adopt a different view.^ And there is no restriction
to inquiries, upon cross-examination, in regard to writings, and
facts evidenced by writings ; and the rule extends to the party
who is a witness in support of his own case ; and he may be
asked, with a view to discredit him, if he did not in a similar suit
in an inferior court, give evidence before the jury in support of
■■ Per Parke, J., in Earle v. Piclcen, 5 Barr, 5 Bing. 136 ; Eamsbottom v. Tun-
C. & P. 542, note. See also 1 Stark. Evid. bridge, 2 M. & S. 434.
35, 36 ; 2 Stark. Evid. 17 ; infra, §§ 200, * [ * 6 M. & W. 664.
203 ; Pli. & Am. on Evid. 391/392 ; 1 PhU. 6 Lawless v. Queale, 8 Ir. Law, 382 ;
Evid, 372. Lord Gosford v. Robb.Id. 217 ; Parsons v.
2 Bloxam v. Elsee, 1 C. & P. 558 ; Ry. Purcell, 12 Id. 90.
& M. 187, s. c. See, to the same point, "• Jenner v. Joliife, 6 Jolms. 9 ; Has-
Rex u. Hiibe, Peake's Cas. 132; Thomas brouckt). Baker, 10 Id. 248; Welland Canal
«i, Ansley, 6 Esp. 80 ; Scott v. Clare, 3 v. Hathaway, 8 Wendell, 480. But it was
Campb. 2.30; Rex v. Careinion, 8 East, decided in a recent case in New York, Ste-
77; Harrison v. More, Phil. & Am. on phensu.Vroinan,16N. Y.App. 881, revers-
Evid. 3iJJ;, n. ; 1 Phil. Evid. 347, n. ; Rex ing the judgment of the Supreme Court,
V. Inhabit ft::ts of Castle Morton, 3 B. & A. that it is not competent to give in evidence
688. the declarations of the opposite party,
8 Brewer v. Palmer, 3 Esp. 213 ; Rex that he had heard statements inconsia-
V. Inliabitants of Holy Trinity, 7 B. & C. tent with the testimony of his own wit
611 ; 1 Man. & Ry. 444, s. 0. ; Strother v. nesses. Such evidence is none the less
hearsay because repeated by the party.]
CHAP, IV.] THE BEST EVIDENCE. Ill
his defence, and whether a verdict was not rendered against him,
without producing any record in the action.^ And the doctrine of
Slatterie v. Pooley is approved in Massachusetts in recent cases. ^]
§ 97. There is a class of cases, which seem to be exceptions to
this rule, and to favor the doctrine, that oral declarations of a
party to an instrument, as to its contents or effect, may be shown
as a substitute for direct proof by the writing itself. But these
cases stand on a different principle, namely, that where the admis-
sion involves the material fact in pais, as well as a matter of law, the
latter shall not operate to exclude evidence of the fact from the
jury. It is merely placed in the same predicament with_ mixed
questions of law and fact, which are always left to the jury, under
the advice and instructions of the court.^ Thus, where the plain-
tiff, in ejectment, had verbally declared that he had " sold the
lease," under which he claimed title, to a stranger, evidence of
this declaration was admitted against him.* It involved the fact
of the making of an instrument called an assignment of the lease,
and of the delivery of it to the assignee, as well as the legal effect
of the writing. So, also, similar proof has been received, that the
party was " possessed of a leasehold,"^ — " held a note,'"' — " had
dissolved a partnership," — which was created by deed,^ — and,
that the indorser of a dishonored bill of exchange admitted, that ^
it had been " duly protested." ^ Wliat the party has stated in his
answer in Chancery, is admissible on other grounds, namely, that
it is a solemn declaration under oath in a judicial proceeding, and
that the legal effect of the instrument is stated under the advice
of counsel learned in the law. So, also, where both the existence
and the legal effect of one deed are recited in another, the solem-
nity of the act, and the usual aid of counsel, take the case out of
the reason of the general rule, and justify the admission of such
recital, as satisfactory evidence of the legal effect of the instrument,
as well as conclusive proof of its exetution.^ There are other cases,
1 [ * Henman v. Lester, 12 0. B. n. s. ' Doe d. Waithman v. Miles, 1 Stark.
776 ; s. c. 9 Jur. n. s. 601. E. 181 ; 4 Campb. 375.
2 Loomis V. Wadhams, 8 Gray, 557 ; * Gibbons v. Coggon, 2 Campb. 188.
Smith V. Palmer, 6 Cusli. 520.] Whether an admission of the counterfeit
^ United States v. Battiste, 2 Sumn. character of a bank-note, whieli tlie party
240. And see Newton v. Belcher, 12 Ad. had passed, is sufficient evidence of the
& El. 921, N. s, fact, without producing the note, i/iim-e;
* Doe d. Lowden v, Watson, 2 Stark, and See Commonwealth v. Bigelow, 8
R. 230. Met. 235.
6 Digby V. Steele, 8 Campb. 115. ' Ashmore v. Hardy, 7 C. & P. 601 ;
« SeweU V. Stubbs, 1 C. & P. 73. Digby v. Steele, 3 Campb. 115 ; Burleigh
112 LAW OP EVIDENCE. [PAET U.
which may seem, at first view, to constitute exceptions to the
present rule, but in which the declarations of the party were
admissible, either as contemporaneous with the act done, and ex-
pounding its character, thus being part of the res gestce; or, as
establishing a collateral fact, independent of the written instru-
ment. Of this sort was the declaration of a bankrupt, upon his
return to his house, that he had been absent in order to avoid a
writ issued against him ; ^ the oral acknowledgment of a debt, for
which an unstamped note had been given ; ^ and the oral admis-
sion of the party, that he was in fact a mernber of a society created
by deed, and had done certain acts in that capacity.^
V. Stibbs, 5 T. R. 465 ; "West v. Davis, 7 i Newman v. Stretch, 1 M. & M. 338.
East, 363 ; Paul v. Meek, 2 Y. & J. 116 ; " Singleton v. Barrett, 2 C. & J., 368.
Breton v. Cope, Peake's Cas. 30. [As to ^ Alderson v. Clay, 1 Stark. K. 405 ;
answers in Chancery, see infra, § 260, and Harvey v. Kay, 9 B. & C. 356.
8 Greenl. Evid. §§ 280, 290 ; as to recitals
in deeds, see supra, § 23, note.]
CHAP. V.j HEARSAY. 113
CHAP TEE V.
OP HEARSAY.
[ * § 98. Witnesses must testify from knowledge, and not from hearsay.
99. Hearsay evidence may embrace writings and all matters not within the knowl-
edge of the witness.
100. The statements of third persons may become the point of inguiry. They are
then not hearsay.
101. This rule appUes to proof of probable cause, sanity, general repute, &o.
lOlo. The subject further illustrated.
102. The statements of a party may be shown with reference to mental or bodily
affections, whether made to physicians or others.
103. General reputation in the family will support pedigree.
104. And this is competent to prove the time of births, marriages, and deaths.
104a. Recent English decisions.
105. So inscriptions on tombstones and other monuments, and engravings on rings,
and charts, pedigrees, &c., are admissible as original evidence.
106. The conduct of families is evidence of relationship.
107. The fact that persons are recognized as husband and wife is sufficient evidence
of marriage, in ordinary cases.
108. The declarations of a party giving character to his acts may be proved as
part of the transaction.
108a. So also his correspondence in connection with the transaction.
109. Declarations affecting claim of title to land made whUe the party is in posses-
sion, competent.
110. All declarations must be concurrent with the acts to be admissible.
111. The declarations of co-conspirators in furtherance of the common design ad-
missible against each other.
112. In copartnerships, the acts and declarations of each partner in fm-therance of
the common design, bind the firm,
n. to 112. Review of the cases, as to the admission of one partner, after the disso-
lution, removing the bar of the statute of limitations.
113. The declarations of an agent, made in the course of his agency, are admissi-
ble as part of the res gestce.
114. As to any other facts, within the knowledge of the agent, not connected with
his agency, he must be called as a witness.
114a. The extent to which public corporate companies are bound by the declara-
tions of their agents, by whom they alone can act.
115. Official and professional entries, by persons conusant of the facts, in the
course of tlieir duty, and where there is no known motive to falsify, and
made at the date of the transaction, the person being dead, may be received.
116. ^Further illustrations of the.point. Cases cited.
117. Private books of account admissible on the same ground.
10*
114 LAW OP EVIDENCE. 1 PART H.
§ 118. In the American courts the rule is extended to all private entries of the party
in the ordinary course of his business.
119. The same rule existed in the Roman Civil Law, and in France and Scotland.
120. It seems not requisite to the admission of entries by the party, as part of the
res gestcE, that he be dead.
121. Indorsements of part payment upon securities is evidence of the same char-
acter.
122. If made before debt barred, they will prevent the operation of the statute ot
limitations.
123. Enumeration of the several grounds for admitting the oral declar'ationa o<
persons as substantive evidence.
124. Principal grounds for rejecting heai'say evidence.
125. The rule appUes, although the statement were made upon oath, and be the
best proof attainable.
126. Even the declarations of a subscribing witness are not admissible to discredit
his own attestation. |
§ 98. The first degree of moral evidence, and that which is most
satisfactory to the mind, is afforded by our own senses ; this being
direct evidence, of the highest nature. Where this cannot be had,
as is generally the case in the proof of facts by oral testimony, the
law requires the next best evidence, namely, the testimony of those
who can speak from their own personal knowledge. It is not
requisite that the witness should have personal knowledge of the
main fact in controversy ; for this may not be provable by direct
testimony, but only by inference from other facts shown to exist.
But it is requisite that, whatever facts the witness may speak to,
he should be confined to those lying in his own knowledge, whether
they be things said or done, and should not testify from informa-
tion given by others, however worthy of credit they may be. For
it is found indispensable, as a test of truth, and to the proper ad-
ministration of justice, that every living witness should, if possible,
be subjected to the ordeal of a cross-examination, that it may
appear what were his powers of perception, his opportunities for
observation, his attentiveness in observing, the strength of his
recollection, and his disposition to speak the truth. But testi-
mony from the relation of third persons, even where the informant
is known, cannot be subjected to this test ; nor is it often possible
to ascertain through whom, or how many persons, the narrative
has been transmitted, from the original witness of the fact. It is
this which constitutes that sort of second-hand evidence termed
" hearsay."
§ 99. The term hearsay is used with reference to that which is
written, as well as to that which is spoken ; and, in its legal sense,
CHAP. T.] HEARSAY. 115
it denotes that kind of evidence, which does not derive its value
solely from the credit to be given to the witness himself, but rests
also, in part, on the veracity and competency of some other per-
son.^ Hearsay evidence, as thus described, is uniformly held
incompetent to establish any specific fact, which, in its nature, is
susceptible of being proved by witnesses, who can speak from their
own knowledge. That this species of testimony supposes some-
thing better, which might be adduced in the particular case, is
not the sole ground of its exclusion. Its extrinsic weakness, its
incompetency to satisfy the mind as to the existence of the fact,
and the frauds which may be practised under its cover, combinse
to support the rule, that hearsay evidence is totally inadmissible.^
§ 100. Before we proceed any farther in the discussion of this
branch of evidence, it will be proper to distinguish more clearly
between hearsay evidence and that which is deemed original. For
it does not follow, because the writing or words in question are
those of a third person, not under oath, that therefore they are
to be considered as hearsay. On the contrary, it happens in
many cases, that the very fact in controversy is, whether such
things were written or spoken, and not whether they were true ;
and in other cases, such language or statements, whether written
or spoken, may be the natural or inseparable concomitants of the
principal fact in controversy.^ In such cases, it is obvious, that
the writings or words are not within the meaning of hearsay, but
are original and independent facts, admissible in proof of the
issue.
§ 101. Thus, where the question is, whether the party acted
prudently, wisely, or in good faith, the information on which he
acted, whether true or false, is original and material evidence.
This is often illustrated in actions for malicious prosecution;^
and also in cases of agency and of trusts. So, also, letters and
conversation addressed to a person, whose sanity is the fact in the
question, being connected in evidence with some act done by him,
are origuial evidence to show whether he was insane or not.^
1 1 Phil. Evid. 185 [Sussex Peerage * Taylor v. Willans, 2 B. & Ad. 845.
case, 11 CI. & Kn. 85, 113 ; Stapylton v. So, to reduce the damages, in an action
Clougli, 22 Eng. Law and Eq. R. 276]. for libel. Colman v. Southwick, 9 Johns
^ Per Marshall, C. J., in Mima Queen 45.
V. Hepljurn, 7 Cranoh, 290, 295, 296 ; Dar ^ Wlieeler v. Alderson, 3 Hagg. Eccl.
vis V. Wood, 1 Wheat. 6, 8 ; Rex v. Eris- R. 574, 608 ; Wright v. Tatham, 1 Ad. &
well, 3 T. R. 707. El. 3, 8 ; 7 Ad. & El. 313, s. c. ; 4 Bing.
i* Bartlett v. Delprat, 4 Mass. 708 ; Du n. c. 489, s. c. Whether letters addressed
Bost V. Beresford, 2 Campb. 511. to the person, whose sanity is in issue, are
116
LAW OP EVIDENCE.
[PAKT n.
The replies given to inquiries made at the residence of an absent
witness, or at the dwelling-house of a bankrupt, denying that he
was at home, are also original evidence.^ In these, and the like
cases, it is not necessary to call the persons to whom the inquiries
were addressed, since their testimony could add nothing to the
credibility of the fact of the denial, which is the only fact that is
material. This doctrine applies to all other communications,
wherever the fact that such communication was made, and not its
truth or falsity, is the point in controversy.^ Upon the same
prijiciple it is considered, that evidence of general reputation, repu-
ted ownership, public rumor, general notoriety, and the like,' though
composed of the speech of third persons not under oath, is origi-
nal evidence and not hearsay ; the subject of inquiry being the
concurrence of many voices to the same fact.^
admissible evidence to prove how he was
treated by tliose who knew liim, without
showing any reply on his part, or any
other act connected with the letters or
their contents, was a question much dis-
cussed in Wright v. Tatham. Their ad-
raissibihty was strongly urged as evidence
of the manner in which the person was in
fact treated by those who knew him ; but
it was replied, that the effect of the letters,
alone considered, was only to show what
were the opinions of the writers ; and that
mere opinions, upon a distinct fact, were
in general inadmissible ; but, whenever ad-
missible, they must be proved, like other
facts, by the witness himself under oath.
The letters in this case were admitted by
Gurney, B., who held the assizes ; and
upon error in the Exchequer Chamber,
four of the learned judges deemed them
rightly admitted, and three thought other-
wise ; but the point was not decided, a vmire
de novo being awarded on another ground.
See 2 Ad. & El. 3 ; and 7 Ad. & El. 329.
Upon the new trial before the same judge,
the letters were again received ; and for
this cause, on motion, a new trial was
granted by Lord Denman, C. J., and Lit-
tiedale and Coleridge, Judges. The cause
was then again tried before Coleridge, J.,
who rejected the letter ; and exceptions
being taken, a writ of error was again
brought in the Exchequer Chamber;
where the six learned judges present, be-
ing divided equally upon tlie question, the
judgment of the King's Bench was af-
firmed (see 7 Ad. & El. 313, 408), and this
judgment was afterwards affirmed in the
House of Lords ; see 4 Bing. n. c. 489) ; a
large majority of the learned judges con-
O'lrring in opinion, that letters addressed
to the party were not admissible in evi-
dence, unless connected, by proof, with
some act of his own in regard to the let-
ters themselves, or their contents.
1 Crosby v. Percy, 1 Taunt. 364 ; Mor-
gan V. Morgan, 9 Bing. 359 ; Sumner v.
WiUiams, 5 JVIass. 444; Pelletreau v.
Jackson, 11 Wend. 110, 123, 124; Key
V. Shaw, 8 Bing. 320 ; Phelps u. Foot, 1
Conn. 387.
2 Whitehead v. Scott, 1 M. & Rob. 2 ;
Shott V. Streatfield, Id. 8 ; 1 Ph. Evid. 188.
8 Foulkes V. Sellway, 3 Esp. 236; Jones
V. Perry, 2 Esp. 482 ; Rex v. Watson, 2
Stark. R. 116 ; BuU. N. P. 296, 297. And
see Hard v. Brown, 3 Washb. 87. Evi-
dence of reputed ownership is seldom ad-
missible, except in cases of bankruptcy,
by virtue of the statute of 21 Jac. 1, e. 19,
§ 11 ; Gurr v. Rutton, Holt's N. P. Cas.
327 ; Oliver v. Bartlett, 1 Brod. & Bing.
269. Upon the question, whether a libel-
lous painting was made to represent a cer-
tain individual, Lord EUenborough per-
mitted the declarations of the spectators,
while looking at the picture in the exhibi-
tion-room, to be given in evidence. Du
Best V. Beresford, 2 Campb. 512. [The
fact that a debtor was reputed insolvent at
the time of an alleged fraudulent prefer-
ence of a creditor, is competent evidence
tending to show that his preferred creditor
had reasonable cause to believe him insol-
vent. Lee V. Kilbm-n, 3 Gray, 594. And
the fact that he was in good repute as to
property may likewise be proved, to show
that such a creditor had not reasonable
cause to believe him insolvent. Bartlett
V. Decreet, 4 Gray, 113 ; Heywood v.
Reed, lb. 674. In both cases the testi-
mony is admissible on the ground that the
CHAP, v.] HEARSAY. 117
[*§ 101«. Under this head, it has been held that where one
claimed to have procured a pistol to defend himself against the
attack of another, upon the ground of certain infoi'mation received
from others, such information becomes an original fact, proper to
be proved or disproved in the case.^ So in an action for fraudu-
lently representing another worthy of credit, witnesses conversant
with the facts of the transaction in qtiestion may be allowed to de-
pose that at the time they also regarded the person trustworthy.
So it may be shown that such person was at that time generally
so reputed among tradesmen with wliom he dealt.'-^]
§ 102. Wherever the bodily or mental feelings of an individual
are material to be proved, the usual expressions of such feelings,
made at the time in question, are also original evidence. If they
were the natural language of the affection, whether of body or
mind, they furnish satisfactory evidence, and often the only proof
of its existence.^ And whether they were real or feigned is for
the jury to determine. Thus, in actions for criminal conversation,
it being material to ascertain upon what terms the husband and
wife lived together before the seduction, their language and de-
portment towards each other, their correspondence together, and
their conversations and correspondence with third persons, are
original evidence.* But to guard against the abuse of this rule,
it has been held, that before the letters of the wife can be received,
it must be proved that they were written prior to any misconduct
on her part, and when there existed no ground for imputing
collusion.^ If written after an attempt of the defendant to accom-
plish the crime, the letters are inadmissible.^ Nor are the dates
of the wife's letters to the husband received as sufficient evidence
of the time when they were written, in order to rebut a charge of
cruelty on his part ; becaiise of the danger of collusion.'' So, also,
belief of men, as to matters of which they exclamations, and expressions as jsually
have not personal knowledge, is reasona- and naturally accompany and furnish evi-
bly supposed to be affected by the opin- dence of a present existing pain or malady,
ions of others wlio are about them. See Bacon v. Charlton, 7 Cusli. 581, i86.] ,
also Carpenter v. Leonard, 3 Allen, 32; ^ Trelawney v. Coleman, 2 Stiirk. R.
and WhitcherK. Shuttuck, lb. 319.] 191; 1 Barn. & Aid. 90, s. o.; W.ilis o.
1 f* People V. .Shea, 8 Cal. 538. Barnard, 8 Bing. 376 ; Elsam i'. Faucet t,
2 Sheen v. Bumpstead, 10 Jur. ff. s. 2 Esp. 562; Winter o. "Wroot, 1 M. &Kob.
242 ; Exch. Cham. ; s. c. 2 H. & C. 193.] 404 ; Gilchrist v. Bale, 8 Watts, 355 ;
■^ ^ [Such evidence, however, is not to be Thompson v. Freeman, Skin. 402.
extended beyond the necessity on which ^ Edwards v. Crock, 4 Esp. 39 ; Tre-
the rule is founded. Any thing in the na- lawney v. Coleman, 1 Barn. & Aid. 90 ;
ture of narration or statement is to be 1 Phil. Evid. 190.
carefully excluded, and the testimony is ^ Wilton v. Webster, 7 Car. & P. 198.
to be confined strictly to such complaints, ' Houliston v. Smyth, 2 Car. & P. 22;
118 LAW OF EVIDENCE. [PAET H.
the representation by a sick person, of the nature, symptoms, and
effects of the malady, under which he is laboring at the time, ai-e
received as original evidence. If made to a medical attendant,
they are of greater weight as evidence ; but, if made to any other
person, they are not on that account rejected.^ In prosecutions
for rape, too, where the party injured is a witness, it is material
to show that she made complaint of the injury while it was yet
recent Proof of such complaint, therefore, is original evidence ;
but the statement of details and circumstances is excluded, it
being no legal proof of their truth.^
§ 103. To this head may be referred much of the evidence some-
times termed "hearsay," which is admitted in cases oi pedigree.
The principal question, in these cases, is that of the parentage,
or descent of the individual ; and in order to ascertain this fact,
it is material to know how he was aclcnowledged and treated by
those who were interested in him, or sustained towards him any
relations of blood or affinity. It was long unsettled, whether
any and what kind of relation must have subsisted between the
person speaking and the person whose pedigree was in question ;
and there are reported cases, in which the declarations of servants,
and even of neighbors and friends, have been admitted. But it
is now settled, that the law resorts to hearsay evidence in cases
of pedigree, upon the ground of the interest of the declarants of
the person from whom the descent is made out, and their con-
sequent interest in knowing the connections of the family. The
rule of admission is, therefore, restricted to the declarations of
deceased persons, who were related by blood or marriage to the
person, and, therefore, interested in the succession in question.^
Trelawney v. Coleman, 1 Barn. & Aid. 90. for the plaintiff. Bacon v. Charlton, 7
[And where in an action against a 1ms- Cush. 581, 586. State v. Howard, 32 Vt.
band for the hoard of his wife, the plaintiff 380 ; Kent v. Lincoln, lb. 691.1
had introduced testimony tending to show ^ i East, P. C. 444, 445 ; 1 Hale, P. C.
a certain stii.c of mind oh the part of the 633; 1 Russell on Crimes, 565; Rex v.
wife, 1 er declarations to third persons on Clarke, 2 Stark. R. 241; Laughlin v. The
that .-ubJL'ijt, expressive of her mental feel- State, 18 Ohio, 99. In a prosecution for
ings, ii"e admissible in favor of the bus- conspiring to assemble a large meeting,
band. Jacobs v. Wliitcomb, 10 Cush. 255.] for the purpose of exciting terror in the
1" Aveson v. Lord Kinnaird, 6 East, community, the complaints of terror, made
183 ; 1 Ph. Evid. 191 ; Grey v. Young, 4 by persons professing to be alarmed, were
McCord, 38 ; Gilchrist v. Bale, 8 Watts, permitted to be proved by a witness, who
;;55. [In an action for an injury caused lieard them, without calling the persons
by a detect in the highway, groans or ex- themselves. Regina v. Vincent et al. 9 C.
ciamations uttered by the plaintiff at any & P. 275. See Bacon v. Charlton, 7 Cush.
time, expressing present pain or agony, 581.
and referring by word or gesture to the ^ Vowles v. Young, 13 Ves. 140, 147 ;
Boat of thi! pain, are competent testimony Goodright v. Moss, Cowp. 691, 594, as
CHAP. V.J
HEABSAY.
119
And general repute in the family, proYed by the testimony of a
surviving member of it, has been considered as falling within the
rule.^
§ 104. The term pedigree, however, embraces not only descent
and relationship, but also the facts of birth, marriage, and death,
and the times when these events happened. These facts, there-
fore, may be proved in the manner above mentioned, in all cases
where they occur incidentally, and in relation to pedigree. Thus,
an entry by a deceased parent, or other relative, made in a Bible,
family missal, or any other book, or in any document or paper,
stating the fact and date of the birth, marriage, or death of a child,
or other relative, is regarded as a declaration of such parent or
relative, in a matter of pedigree.^ So also, the correspondence
expounded by Lord Eldon, in Whitelocke
V. Baker, 13 Ves. 514; Johnson v. Law-
son, 2 Bing. 86 ; Monkton v. Attorney-
General, 3 Euss. & My. 147, 156 ; Crease
V. Barrett, 1 Cromp. Mees. & lies. 919,
928; Casey v. O'Shaunessy, 7 Jur. 1140;
Gregory v. Baugh 4 Band. 607 ; Jewell v.
Jewell, 1 How. s. c. Rep. 231 ; 17 Peters,
213, s. c. ; Kaywood v. Barnett, 3 Dev. &
Bat. 91 ; Jackson v. Browner, 18 Johns.
37 ; Chapman v. Chapman, 2 Conn. 347 ;
Waldron v. Tuttle, 4 N. Hamp. 371. The
declarations of a mother, in disparage-
ment of the legitimacy of her child, have
been received in a question of succession.
Hargrave v. Hargrave, 2 C. & K. 701.
[Mooers v. Bunker, 9 Foster (N. H.), 420;
Emerson v. "White, lb. 482 ; Kelley v. Mc-
Guire, 15 Ark. 555.]
1 Doe V. Griffin, 15 East, 29. There is
no valid objection to such evidence, be-
cause it is hearsay upon hearsay, provided
all the declarations are within the famUy.
Thus, the declarations of a deceased lady,
as to what had been stated to her by her
husband in his lifetime, were admitted.
Doe V. Randall, 2 M. & P. 20 ; Monkton
V. Attorney- General, 2 Russ. & My. 165 ;
Bull. N. P. 295; EUiott v. PiersoU, 1
Peters, 328, 337. It is for the judge to de-
cide, whether the declarants were " mem-
bers of the family so as to render their
evidence admissible ; " and for the jury
to settle the fact to which their declara^
tions relate. Doe v. Davis, 11 Jur. 607 ;
10 Ad. & El. 314, N. s. [See also Copes
V. Pearce, 7 Gill, 247 ; Clements v. Hunt,
1 Jones, Law (N. C), 400.] In regard to
the value and weight, to be given to this
kind of evidence, the following observa-
tions of Lord Langdale, M. E., are entitled
to great consideration. " In cases," said
he, " where the whole evidence is tradi-
tionary, when it consists entirely of family
reputation, or of statements of declarations
made by persons who died long ago, it
must be taken with such allowances, and
also with such suspicions, as ought rear
sonably to be attached to it. When fam-
ily reputation, or declarations of kindred
made in a family, are the subject of evi-
dence, and the reputation is of long stand-
ing, or the declarations are of old date, tlie
memory as to the source of the reputation,
or as to the persons who made the decla-
rations, can rarely be characterized by per-
fect accuracy. What is true may become
blended with, and scarcely distinguish-
able from something that is erroneous ;
the detection of error in any part of the
statement necessarily throws doubt upon
the whole statement, and yet all that is
material to the cause may be perfectly
true ; and if the whole he rejected as false,
because error in some part is proved, the
greatest injustice may be done. All tes-
timony is subject to such errors, and testi-
mony of this kind is more particularly so ;
and however difficult it may be to discover
the truth, in cases where there can be no
demonstration, and where every conclu-
sion which may be drawn is subject to
some doubt or uncertainty, or to some
opposing probabilities, the courts are bound
to adopt the conclusion which appears to
rest on the most solid foundation." See
Johnson v. Todd, 5 Beav. 599, 600.
^ The Berkley Peerage case, 4 Campb.
401, 418 ; Doe v. Bray, 8 B. & C. 813 ;
Monkton v. The Attorney-General, 2 Euss.
& My. 147 ; Jackson v. Cooley, 8 Johns.
128, 131, per Thompson, J. : Douglas v.
Saunderson, 2 Dall. 116 ; The Slane Peer-
age case, 5 Clark & Fin. 24; Carskadden
V. Poorman, 10 Watts, 82 ; The Sussex
Peerage case, 11 Clark & Fin. 85 ; Wat-
120 LAW OP EVIDENCE. [PABT II.
of deceased members of the family, recitals in family deeds, such
as marriage settlements, descriptions in wills, and other solenm
acts, are original evidence in all cases, where the oral declara-
tions of the parties are admissible.^ In regard to recitals of
pedigree in bills and answers in Chancery, a distinction has been
taken between those facts which are not in dispute and those
which are in controversy; the former being admitted, and the
latter excluded.^ Recitals in deeds, other than family deeds, are
also admitted, when corroborated by long and peaceable possession
according to the deed.^
[ * § 104a. It seems to be requisite, in regard to the admissibility
of evidence of reputation to prove a marriage, that the persons
from whom the information is derived should be shown to have
deceased, or that the reputation should be known to the witness
to have been general among the connections in the family, and that
there should have been no controversy in regard to it. For after
the existence of lis mota it is not competent to give evidence of
such reputation ; and it will not be allowed to give such evidence
upon proof that such suit was fraudulently instituted for the pur-
pose of excluding the testimony. But the existence of a former
suit between the same parties will not exclude such reputation,
son V. Brewster, 1 Barr, 381. And in a tail male, and declared themselves heirs ol
recent case this doctrine has heen thought the bodies of his daughters, who were dc r-
to warrant the admission of declarations, isees in remainder ; and in Slaney v.
made by a deceased person, as to wliere Wade, 1 Mylne & Craig, 338, the grantor
his family came from, where he came was a mere trustee of the estate, not rela-
from, and of what place his father was ted to the parties. See also Jackson v.
designated. Shields v. Boucher, 1 DeGex Cooley, 8 Johns. 128 ; Jackson v. Russell,
& Smale, 40. [* So also the common rep- 4 "Wend. 543 ; Keller v. Nutz, 5 S. & B.
utation in the family is sufficient evidence 251. If the recital in a will is made after
of the death of a person. Anderson v. the fact recited is in controversy, the will
Parker, 6 Cal. 197. See also Redfield is not admissible as evidence of that fact.
on Wills, Part 2, § 1. So also in r«gard The Sussex Peerage case, 11 Clark & Fin.
to the time of one's death. Morrill u. 85.
Foster, 33 N. H. 379.] . ^ phji. §; Am. on Evid. 231, 232, and
1 Bull. N. P. 233 ; Weal v. Wilding, 2 the authorities there cited. Ex parte
Str. 1151, per Wright, J. ; Doe v. E. of affidavits, made several years before, to
Pembroke, 11 East, 503 ; Whitelocke u. prove pedigree by official requirement,
Baker, 13 Ves. 514 ; Elliott v. PiersoU, 1 and prior to any lis mota, are admissible.
Pet. 328 ; 1 Ph. Evid. 216, 217, and Peer- Hurst v. Jones, Wall, Jr. 373, App. 3.
age cases there cited. In two recent cases. As to the effect of a lis mota upon the ad-
the recitals in the deeds were held admis- missibility of declarations and reputation,
siblo only against the parties to the deeds ; see infra, § 131-134.
but in neither of those cases was the party ^ Stokes v. Daws, 4 Mason, 268.
proved to have been related to those whose [* Common practice, in regard to one's
pedigree was recited. In Fort v. Clarke, name, is not objectionable on the ground
1 Russ. 601, the grantors recited the death of heai'say. Willis v. Quimby, 11 Fdster
of the sons of John Cormick, tenants in 485.]
CHAP. V.J HEARSAY. 121
unless the same point were brought into controversy, which it is
now sought to establish.!]
§ 105. Inscriptions on tombstones, and other fwneral monuments,
engravings on rings, inscriptions on family portraits, charts or
pedigree, and the Mke, are also admissible, as original evidence
of the same facts. Those which are proved to have been made by,
or under the direction of a deceased relative, are admitted as his
declarations. But if they have been publicly exhibited, and were
well known to the family, the publicity of them supplies the defect
of proof, in not showing that they were declarations of deceased
members of the family ; and they are admitted on the ground of
tacit and common assent. It is presumed, that the relatives of the
family would not permit an inscription without foundation to
remain ; and that a person would not wear a ring with an error
on it.^ Mural and other funeral inscriptions are provable by
copies, or other secondary evidence, as has been already shown.^
Their value, as evidence, depends much on the authority under
which they were set up, and the distance of time between their
erection and the events they commemorate.*
§ 106. Under this head may be mentioned family conduct, such
as the tacit recognition of relationship, and the disposition and
devolution of property, as admissible evidence, from which the
opinion and belief of the family may be inferred, resting ultimately
on the same basis as evidence of family tradition. Thus it was
remarked by Mansfield, C. J., in the Berkley Peerage case,° that,
" if the father is proved to have brought up the party as his
legitimate son, this amounts to a daily assertion that the son is
legitimate." And Mr. Justice Ashhurst, in anotlier case, remarked
that the circumstance of tlie son's taking the name of the person
with wliom his mother, at the time of his birtli, lived in a state
1 [* Butler V. Mountgarrett, 7 Ho. Lds. bearings, proved to have existed while the
case, 633 ; Shedden u. Patrick, 2 Sw. & lieralds liad the power to punisli usurpa-
Tr. IVO.] tioiis, possessed an oflScial weight and
2 Per Lord Erslcine, in Vowles v. credit. But this autliority is thought to
Young, 13 Vos. 144 ; Monlcton v. Tlie At- liave ceased with tlie last herald's visita-
torney-General, 2 Rus. &Mylne, 147 ; Kid- tion, in 1686. See 1 Pliil. Evid. 224. At
ney v. Cockburn, Id. 167. The Camoys present, they amount to no more than
Peerage, 6 CI. & Fin. 789. An ancient family declarations. [* See Shrewsbury
pedigree, purporting to have been col- Peerage, 7 Ho. Lds. Cas. 1.]
lected from histori/, rfs well as from other " Supra, § 94. [See also Eastman v.
sources, was lielcl admissible, at least to Martin, 19 N. H. 152.]
show the relationship of persons described * Some remarkable mistakes of fact in
by the framer as living, and therefore to such inscriptions are meutioned in 1 Phil
be presumed as known to him. Davies v. Evid. 222.
Lowndes, 7 Scott, N. B. 141. Armorial '. 4 Campb. 416.
vor 11
122 LAW OP EVIDENCE. [PAET II.
of adultery, which name he and his descendants ever afterwards
retained, " was a very strong family recognition of his illegiti-
macy." 1 So, the declarations of a person, since deceased, that
he was going to visit his relatives at such a place, have been held
admissible to show that the family had relatives there.^
§ 107. It is frequently said, that general reputation is admissible
to prove the fact of the marriage of the parties alluded to, even in
ordinary cases, where pedigree is not in question. In one case,
indeed, such evidence was, after verdict, held sufficient, primd
facie, to warrant the jury in finding the fact of marriage, the
adverse party not having cross-examined the witness, nor con-
troverted the fact by proof.^ But the evidence produced in the
other cases, cited in support of this position cannot properly be
called hearsay evidence, but was strictly and truly original evi-
dence of facts, from which the marriage might well be inferred ;
such as evidence of the parties being received into society as man
and wife, and being visited by respectable families in the neighbor-
hood, and of their attending church and public places together as
such, and otherwise demeaning themselves in public, and address-
ing each other as persons actually married.*
§ 108. There are other declarations, which are admitted as
original evidence, being distinguished from hearsay by their con-
nection with the principal fact under investigation. The affairs
of men consist of a complication of circumstances, so intimately
interwoven as to be hardly separable from each other. Each owes
its birth to some preceding circumstances, and, in its turn, be-
comes the prolific parent of others ; and each, during its existence,
has its inseparable attributes, and its kindred facts, materially
affecting its character, and essential to be known, in order to
a right understanding of its nature. These surrounding circum-
stances, constituting parts of the res gestce, may always be shown
to the jury, along with the principal fact ; and their aldmissibility
1 Goodright v. Saul, 4 T. E. 356. s Evans v. Morgan, 2 C. & J. 453.
2 Rishton v. Nesbitt, 2 M. & Rob. 252. « 1 Phil. E vid. 234, 235 ; Hervey v. Her-
[ * These declarations embrace what is vey, 2 W. Bl. 877 ; Birt v. Barlow, Doug,
said by husband or wife, as to the connec- 171,174; Read v. Passer, 1 Esp. 213;
tions in the family of the other, but not Leader v. Barry, Id. 353 ; Doe v. Fleming,
those made by members of the family of 4 Bing. 266 ; Smith 'v. Smith, 1 Pliillini.
one as to the family of the other. And let- 294 ; Hammick v. Bronson, 5 Day, 290,
ters may be produced to show how the 293 ; In re Taylor, 9 Paige, 611 [2 Greenl
wife was addressed by members of her Evid. (7th ed.) § 461-462|.
own family. Shrewsbury Peerage case,
7 Ho. Ld's Oas. 1.]
CHAP, v.]
HEABSAT.
123
is determined by the judge, according to the degree of their
relation to that fact, and in the exercise of his sound discretion ;
it being extremely difficult, if not impossible, to bring this class
of cases within the limits of a more particular description.^ The
principal points of attention are, whether the circumstances and
declarations offered in proof were contemporaneous with the main
fact under consideration, and whether they were so connected
with it as to illustrate its character.^ Thus, in the trial of Lord
' Per Park, J., in Eawsoa v. Haigh, 2
Bing. 104 ; Ridley v. Gyde, 9 Bing. 349,
352; Pool V. Bridges, 4 Pick. 879; Allen
V. Duncan, 11 Pick. 309 [Haynes v. But-
ter, 24 Pick. 242; Gray v. Goodrich, 7
.Johns. 95 ; Bank of Woodstock v. Clark,
25 Vt. 308 ; Mitchum v. State, 11 Geo.
615 ; Tomkies v. Reynolds, 15 Ala. 109 ;
Cornelius v. The State, 7 Eng. 782.
On the trial of an action brought by a
principal against an agent who had charge
of certain business of the principal ibr
many years, to recover monej' received
by the defendant from clandestine sales
of property of the plaintiff, and money of
the plaintiff fraudulently taken by the
defendant, eridence that the defendant
at the time of entering the plaintiff's
service was insolvent, and that he had
since received only a limited salary and
some small additional compensation, and
that subsequent to the time of his al-
leged misdoings, and during the period
specified in the writ, he was the owner of
a large property, far exceeding the aggre-
gate of all Ills salary and receipts while in
the plaintiff's service, is admissible as
having same tendency to prove, if the
jury are satisfied by other evidence, that
money had been taken from the plaintiff'
by some one in his employ, that the de-
fendant is the guilty person; such facts
being in nature of res gestce accompanying
the very acts and transactions of 'the de-
fendant under investigation, and tending
to give them character and significance.
And the declarations of the defendant
concerning his property and business trans-
actions, made to third persons, in the ab-
sence of the plaintiff' or his agents, are
inadmissible to rebut such evidence. Bos-
ton & W. R. 11. Corp. V. Dana, 1 Gray,
83, 101, 103 pHackett v. King, 8 Allen,
144]. See also Commonwealth v. Mont-
gomery, 11 Met. 534. The declaration of
a person who is wounded and bleeding,
that the defendanc has stabbed her, made
immediately after the occurrence, though
witli such an interval of time as to allow
her to go up-stairs from her room to an-
other room, is admissible in evidence af-
ter her death, as a part -of the res gestce.
Commonwealth v. McPike, 3 Cush. 181.]
^ Declarations, to become part of the
res gestce, "must have been made at the
time of the act done, which they are sup-
posed to characterize ; and have been well
calculated to unfold the nature and quali-
ty of the fiicts they were intended to ex-
plain, and so to harmonize with them, as
obviously to constitute one transaction."
Per Hosmer, C. J., in Enos v. Tuttle, 3
Conn. R. 250. And see In re Taylor, 9
Paige, 611 ; Carter v. Buchannon, 3 Kel-
ley, B. 513; Blood v. Rideout, 13 Met.
237 ; Boyden v. Burke, 14 How. s. c. 575.
[ * Declarations to be admissible must be
contemporaneous with the act. Eaner v.
Turner, 1 Clarke (Iowa), 53; and they
must tend to characterize the act ; Elkins
V. Hamilton, 20 Vt. Rep. 627 ; but if not
consistent with the obvious character of
the act, they wiU not control it. State v.
Shellidy, 8 Clarke (Iowa), 477.] But
declarations explanatory of a previous
fact, e. g. how the party's hands became
bloody, are inadmissible. Scraggs v. The
State, 8 Smed. & Marsh. 722. So, where
a party, on removing an ancient fence, put
down a stone in one of the post-holes, and
the next day declared that he placed it
there as a boundary ; it was held that tliis
declaration, not constituting part of the
act done, was inadmissible in evidence in
his tavor. Noyes v. Ward, 19 Conn. 250.
See Corinth v. Lincoln, 34 Maine, 310.
In an action by a bailor against tlie bailee,
for loss by his negligence, the declarations
of the bailee, contemporaneous with the
loss, are admissible in his favor, to show
the nature of the loss. Story on Bailm.
§ 339, cites Tompkins v. Saltraarsh, 14 S. &
R. 275 ; Beardslee v. Richardson, 1 1 Wend.
25 ; Doorman v. Jenkins, 2 Ad. & El. 80.
So, in a suit for enticing away a servant,
his declarations at the time of leaving his
master are admissible, as part of the res
qesUe, to show the motive of his departure.
Hadley v. Carter, 8 N. Hanip. 40. [In
Lund V. Tyngsborough, 9 Cush, 36, which
was an action for injuries received through
a defect in a liighway, during the trial at
124
LAW OP EVIDENCE.
[PAET II.
George Gordon for treason, the cry of the mob, who accompanied
the prisoner on liis enterprise, was received in evidence, as forming
part of the res gestce, and showing the character of the principal
fact.^ So also, where a person enters into land in order to take
advantage of a forfeiture, to foreclose a mortgage, to defeat a dis-
seisin,^ or the like ; or changes his actual residence, or domicile,
or is upon a journey, or leaves his home, or returns thither, or
remains abroad, or secretes himself; or, in fine, does any other
act, material to be understood ; his declarations, made at the time
of the transaction, and expressive of its character, motive, or
object, are regarded as " verbal acts, indicating a present purpose
and intention," and are therefore admitted in proof like any other
material facts.^ So, upon an inquiry as to the state of mind,
sentiments, or dispositions of a person at any particular period,
his declarations and conversations are admissible.* They are
parts of the res gestae.^
Nisi Prills, a witness was permitted to say-
in reply to the question, "At tlie time
wlien he (the doctor who died before the
trial) was called, and while engaged in
such examination, what did he say con-
cerning such injury, its nature and ex-
tent 'I " that " I heard him say that it was
a very serious injury — that it was more
injured than though the bone was broken,"
&c. It did not appear how long it was
after the accident happened when these
declarations were made. The full bench
decided that the evidence was wrongly
■admitted, and in giving the opinion of the
court, Fletcher, J., states at some length
the rules of law applicable to the admissi-
bility of tliis class of testimony [* which
the profession will find a valuable sum-
mary of the law upon the point].
1 21 Howell's St. Tr. 542. [In an in-
dictment for keeping a house ot ill fame,
evidence of conversations held by men im-
mediately upon coming out of the house,
and npon tiie sidewalk in front thereof,
but not in presence of the defendant, nor of
any of tlie inmates, as to what had taken
place in the house, has been held to be in-
admissible as part of the res ffestm and
tending to show the character of the visi-
tors ill tlie house. Commonwealth u. Har-
■wood, 4 Gray, 41.]
2 Co. Litt. 49, b, 245, b ; Kobinson v.
Swett, 3 Greenl. 316 ; 3 Bl. Comm. 174,
175,
3 Bateman v. Bailey, 5 T. R. 512, and
the observations of Mr. Evans upon it in
2 Potli. Obi. App. No. xvi. § 11 ; Rawson
V. Uaigh, 2 Bing. 99 ; Newman v. Stretch,
1 M. & M. 338; Ridley v. Gyde, 9 Bing.
349, 352 ; Smith v Cramer, 1 Bing, N. C.
585 ; Gorham v. Canton, 6 Greenl. 266 ;
Fellowes v. Wilhamson, 1 M. & M. 306 ;
Vaeher v. Cocks, Id. 353; 1 B. & Ad.
135 ; Thorndike v. City of Boston, 1 Met.
242 ; CarroU v. The State, 3 Humph. 315 ;
Kilburn v. Bennet, 3 Met. 199 ; Salem v.
Lynn, 13 Met. 544; Porter v. Ferguson,
4 Flor. R. 104.
* Barthelemy v. The People, &c. 2
HiU, N. Y. R. 248, 257; Wetmore v. Mell,
1 Ohio, N. s. 26 [supra, § 102].
^ [It is only when the thing done is
equivocal, and it is necessary to render its
meaning clear, and expressive of a motive
or object, that it is competent to prove
declarations accompanying it, as falling
within the class of ns gestce. By Bigelow,
J., in Nutting v. Page, 4 Gray, 584. Thus
the reasons stated by the master-work-
man, when building a dam, for making it
low6r in the middle than at either end,
are not competent evidence against his
employer that it was so made; nor are
the instructions given by the owner of the
dam while rebuilding it, to mark the
height of the old dam and to erect the new
one of the same height. Nutting i-. Page,
ut supra. See also Carleton v. Patterson, 9
Foster (N. H.) 580. The conduct and ex-
clamations of passengers sn a railroad at th<-
time of an accident, though not in the pres-
ence of the party receiving an injury, are
admissible as part of the res yestai, to justify
the conduct of the party injured. Galena,
&c. R. R. Co. V. Fay, 16 111. 558. A letter
which is part of the res gestm, is admissible in
CHAP, v.] HEARSAY. 125
[* § 108a. So it has been recently held, in England, that it is
competent for the plaintiff, for the purpose of proving upon whose
credit the goods sued for were sold, to put in evidence a letter
written by himself, at the time the bargain was made, to liis agent,
desiring him to inquire as to the credit of the defendant, of a
person to whom the person receiving the goods had referred him
for that purpose, and stating therein that the defendant was the
buyer. And it was further considered, that the jury might look
at the whole letter, and although, in itself, it was not evidence of
the" truth of the facts affirmed, it might be considered as cor-
roborative of the plaintiff's version of the transaction.^
§ 109. In regard to the declarations of persons in possession
of land, explanatory of the character of their possession, there has
been some difference of opinion ; but it is now well settled, that
declarations in disparagement of the title of the declarant are admis-
sible, as original evidence. Possession is primd facie evidence of
seisin in fee-simple ; and the declaration of the possessor, that he
is tenant to another, it is said, makes most strongly against his
own interest, and therefore is admissible.^ But no reason is per-
ceived, why every declaration accompanying the act of possession,
whether in disparagement of the claimant's title, or otherwise
qualifying his possession, if made in good faith, should not be
received as part of the res gestae; leaving its effect to be governed
by other rules of evidence.^
evidence, although the writer of it might be ' Dayies v. Pierce, 2 T. E. 53; Doew.
a witness. Roach p. Learned, 37 Maine, Rickarby, 5 Esp. 4 ; Doe v. Payne, 1
110. In a question of settlement the pau- Stark. R. 69 ; 2 Poth. on Obi. 254, App.
per's declarations when in the act of re- No. xri. § 11 ; Rankin v. Tenbrook, 6
moving, are admissible. Eiclimond v. Watts, 388, 390, per Huston, J. ; Doe v.
Thomaston, 88 Maine, 232; Cornville v. Pettett, 5 B. & Aid. 223 ; Reed k. Dickey,
Brighton, 39 lb. 333. The acts and say- 1 Watts, 152 ; Walker v. Broadstock, 1
ings of a constable at the time of a levy, Esp. 458 ; Doe v. Austin, 9 Biug. 41 ; Doe
are admissible as part of the res gestm, in v. Jones, 1 Campb. 367 ; Jackson v. Bard,
an action against the sureties on his bond 4 Johns. 230, 234 ; Weidman v. Kohr, 4 S.
for neglecting to make a return thereof. & R. 174; Gibblehouse u. Strong, 3 Rawle,
Dobbs V. Justices, 17 Geo. 624.] R. 437 ; Norton v. Pettibone, 7 Conn. R.
1 [» Milne v. Leisler, 7 H. & N. 786; 319; Snelgrove v. Martin, 2 McCord, 241,
s. c. 8 Jur. N. s. 121 ; Eastman v. Bennett, 243 ; Doe d. Majoribanks v. Green, 1 Gow.
6 Wis. 232, where the same principle is R. 227; Came jj. NicoU, 1 Bing; N. C. 430 ;
maintained.] Davis v. Campbell, 1 Iredell, R. 482 ;
2 Peaceable v. Watson, 4 Taunt. 16, 17, Crane v. Marshall, 4 Shepl. 27 ; Adams v.
per MansfleldjjC. J. ; West Cambridge v. French, 2 N. Hamp. R. 287 ; Treat v.
Lexington, 2 Pick. 536, per Putnam, J. ; Strickland, 10 Shepl. 234 ; Blake v. White,
Little V. Libby, 2 Greenl. 242 ; Doe v. Pet- 13 N. Hamp. R. 267 ; Doe v. Langfield, 16
tett, 5 B. & Aid. 223'; Carne v. NichoU, 1 M. & W. 497 ; Baron de Bode's case, 8 Ad.
Bing. N. C. 430 ; per Lyndhui-st, C. B., in & El. 243, 244, n. s. ; Abney v. Kings-
Chambei-s v. Bernasconi, 1 Cromp. & Jer. land, 10 Ala. R. 355 ; Daggett v. Shaw,
457 ; Smith v. Martin, 17 Conn. R. 399 ; 5 Met. 223 ; [Bartlett v. Emerson, 7
iti/ia, § 189 Gray, 174 ; Ware v. Brookhouse, lb. 454;
11*
126
LAW OF EVIDENCE.
[PAET n.
§ 110. It is to be observed, that where declarations, offered in
evidence, are merely narrative of a past occurrence, they cannot
be received as proof of the existence of such occurrence. They
must be concomitant with the principal act, and so connected with
it, as to be regarded as the mere result and consequence of the
co-existing motives, in order to form a proper criterion for directing
the judgment, which is to be formed upon the whole conduct.^
On this ground, it has been holden, that letters written during
absence from home are admissible as original evidence, explana-
tory of the motive of departure and absence, the departure and
absence being regarded as one continuing act.^
§ 111. The same principles apply to the acts and declarations
of one of a company of conspirators, in regard to the common
design as aifeoting his fellows. Here a foundation must first be
laid, by proof, sufficient in the opinion of the judge, to establish,
primd facie, the fact of conspiracy between the parties, or proper
to be laid before the jury, as tending to establish such fact. The
riagg V. Mason, 8 Gray, 556] ; [ * Wood
V. Foster, 8 Allen, 24]. Stark v. Boswell,
6 Hill, N. Y. Eep. 405 ; Pike v. Hayes, 14
N. Hamp. 19; Smith v. Powers, 15 N.
Hamp. 546, 563 ; [Marcy v. Stone, 8 Gush.
4 ; Stearns v. Hendersass, 9 lb. 497 ;
Plimpton V. Chamberlain, 4 Gray, 320 ;
Hyde v. Middlesex Co. 2 Gray, 267 ; Potts
V. Bverhart, 26 Penn. St. R. 498; St.
Clair V. Shale, 20 lb. 105 ; Doe v. Camp-
bell, 1 Ired. 482 ; Brewer v. Brewer, 19
Ala. 481. A declaration by a tenant, dead
at the time of the trial, that he was not en-
titled to common of pasture in respect to
his farm, is not admissible against his re-
versioner. Papendick v. Bridgwater, 30
Eng. Law & Eq. 293] . Accordingly, it has
been held, that a statement made by a per-
son not suspected of theft and before any
search made, accounting for his possession
of property which he is afterwards cliarged
with having stolen, is admissible in his fa-
vor. Rex V. Abraham, 2 Car. & K. 550.
But see Smith v. Martin, 17 Conn. R. 399.
Where a party after a post-nuptial settle-
ment mortgaged the same premises, it was
held that, as his declarations could bind
him only while the interest remained in
him, his declarations, as to the consid-
ation paid by tlie subsequent purchaser,
were not admissible against the claimants
under the settlement, for this would ena-
ble him to cut down his own previous acts.
Doey. Webber, 8 Nev.& Man. 586. r*And
it has recently been held in England, Reg.
V. Birmingham, 5 L. T. u. s. 309, that the
oral declaration of a deceased occupant of
premises, that he occupied the same as
tenant at a rent of ^20 per annum, was
admissible to prove not only the fact of the
tenancy, but the amount of the rent.]
1 2 Poth. on Obi. by Evans, pp. 248, 249,
App. No. xvi. § 11. Ambrose v. Clendon,
Cas. temp Hardw. 267 ; Doe v. Webber, 1
Ad. & El. 738. In Ridley v. Gyde, 9
Bing. 349, where the point was to estab-
lish an act of bankruptcy, a conversation
of the bankrupt on the 20th of November,
being a resumption and continuation of one
wliich had been begun, but broken off on the
25th of October preceding, was admitted
in evidence. See also Boyden v. Moore,
11 Pick. 362 ; Walton v. Green, 1 C. & P.
521 ; Reed v. Dick, 8 Watts, 479 ; O'Kel-
ly V. O'Kelly, 8 Met. 436 ; Styles v. West-
ern Railroad Corp. Id. 44 [Battles v. Batch-
elder, 39 Maine, 19].
^ Rawson v. Haigh, 2 Bing. 99, 104 ;
Marsh v. Davis, 24 Verm. 363 ; New Mil-
ford V. Sherman, 21 Conn. 101. [The
reasons given by a wife, on the day after
her return to her father's house for leaving
her husband, are not a part of the res gestce,
as connected with and part of the act of
leaving her husband's house, and so arc
not admissible in evidente in an action
brought by the father against the husband
for necessaries supplied the wife ; those
made at the time of the return being ad-
missible. Johnson v. Sherwiu, 3 Gray,
374.1
OHAP. v.] HEARSAY. 127
connection of the individuals in tlie unlawful enterprise being thus
shown, every act and declaration of each member of the con-
federacy, in pursuance of the original concerted plan, and with
reference to the common object is, in contemplation of law, the
act and declaration of them all ; and is therefore original evidence
against each of them. It makes no difference at what time any
one entered into the conspiracy. Every one who does enter into
a common purpose or design is generally deemed, in law, a party
to every act, which had before been done by the others, and a
party to every act, which may afterwards be done by any of the
others, in furtherance of such common design.^ Sometimes, for
the sake of convenience, the acts or declarations of one are admitted
in evidence, before sufficient proof is given of the conspiracy ; the
prosecutor undertaking to furnish such proof in' a subsequent
stage of the cause. But this rests in the discretion of the judge,
and is not permitted, except under particular and urgent circum-
stances ; lest the jury should be misled to infer the fact itself of
the conspiracy from the declarations of strangers. And here, also,
care must be taken that the acts and declarations, thus admitted,
be those only which were made and done during the pendency of
the criminal enterprise, and in furtherance of its objects. If they
took place at a subsequent period^ and are, therefore, merely narra-
tive of past occurrences, they are, as we have just seen, to be
rejected.2 The term acts, includes written correspondence, and
other papers relative to the main design ; but whether it includes
unpublished writings upon abstract questions, though of a kin-
dred nature, has been doubted.^ Where conversations are proved,
tlie effect of the evidence will depend on other circumstances, such
as the fact and degree of the prisoner's attention to it, and his
assent or disapproval.*
1 Eex V. Watson, 32 Howell's St. Tr. false imprisonment, the declaration of a
7, per Bayley, J. ; Rex v. Brandreth, Id. co-defendant, showing personal malice,
857, 858 ; Ilex v. Hardy, 24 Howell's St. though made in the absence of the others,
Tr 451, 452, 453, 475 ; American Fur Co. and several weeks after the fact, was ad-
V, The United States, 2 Peters, 358, 365 ; mitted by Garrow, B., without such re-
Crowninshield's case, 10 Pick. 497 ; Rex v. striction. Where no common object or
Hunt, 3 15. & Aid. 5B6 ; 1 East, P. C. 97, motive is imputed, as in actions for negli-
§ 38 ; Nichols v. Bowding,.! Stark. R. 81. gence, the declaration or admission of one
2 Rex V. Hardy, siipm. The declara- defendant is not admitted against any but
tions of one co-trespasser, wliere several himself Daniels v. Potter, 1 M. & M.
are jointly sued, may be given in evi- 501.
dence against himself, at whatever time it ^ Foster's Kep. 198 ; Rex f. Watson, 2
was made; but, if it was not part of the Stark. R. 116, 141-147.
res gestm, its eifect is to be restricted to the * Rex v. IJardy, 24 Howell's St. Tr.
party making it. Yet, in Wright v. Court, 703, per Eyre, C. J.
2 0. & P. 232, wliich was an action for
128
LAW OP BVIDBNCE.
[PAET n.
§ 112. This doctrine extends to all cases oi. partnership. Where-
ever any number of persons associate themselves in the joint
prosecution of a common enterprise or design, conferring on the
collective body the attribute of individuality by mutual compact, as
in commercial partnerships, and similar cases, the act or declaration
of each member, in furtherance of the common object of the associa-
tion, is the act of all. By the very act of association, each one is
constituted the agent of all.^ While the being thus created exists,
it speaks and acts only by the several members ; and of course,
vsrhen that existence ceases by the dissolution of the firm, the act
of an individual member ceases to have that effect ; binding himself
alone, except so far as by the articles of association or of dissolu-
tion it may have been otherwise agreed.^ An admission, however,
by one partner, made after the dissolution, in regard to business of
the firm, previously transacted, has been held to be binding on the
firm.^
1 Sandilands v. Marsh, 2 B. & Aid.
673, 678, 679 ; "Wood v. Braddiek, 1 Taunt.
104, and Petherick v. Turner et al. there
cited; Rex v. Hardwick, 11' East, 578,
589 ; Van Reimsdyk v. Kane, 1 Gall. 630,
635 ; Nichols v. Dowding, 1 Stark. R. 81 ;
Hodempyl v. Vingerhoed, Chitty on Bills,
618, note (2) ; Coit v. Tracy, 8 Conn. R.
268. [In an action against two as alleged
copartners, evidence of statements and
declarations which would be admissible
only upon the assumption of the existence
of the copartnership, is incompetent to
prove such copartnership. Dutton v.
"Woodman, 9 Gush. 255 ; Alleott v. Strong,
9 Gush. 323. And evidence to show the
continuance of a partnership after it has
been dissolved, with notice to the parties,
must be as satisfactory as that required to
show its establishment. AUcott v. Strong,
ut suprai\
2 Bell V. Morrison, 1 Peters, 371 ; Bur-
ton V. Issitt, 5 B. & Aid. 267.
* This doctrine was extended by Lord
Brougham, to the admission of payment to
the partner after the dissolution. Pritch-
aid V. Draper, 1 Russ. & M. 191, 199, 200.
See "Wood v. Braddiek, 1 Taunt. 104;
"Whitcomb v. "Whiting, 2 Doug. 652 ; ap-
proved in Mclntii-e v. Ohver, 2 Hawkes,
209 ; Beitz v. FuUer, 1 McCord, 541 ; Gady
V. Shepherd, 11 Pick. 400 ; "Van Reimsdyk
V. Kane, 1 Gall. 635, 636. See also Parker
V. MerriU, 6 Greenl. 41 ; Martin v. Root,
17 Mass. 223, 227 ; Vinal v. Burrill, 16
Pick. 401 ; Lefavour v. Yandes, 2 Blackf.
240 ; Bridge v. Gray, 14 Pick. 55 ; Gay v.
Bowen, 8 Met. lOO; Mann v. Locke, 11
N. Hamp. R. 246, to the same point. [See
also Loomis v. Loomis, 26 Vt. 198 ; Pierce
V. "Wood, 3 Poster, 519 ; Drumright v.
Pliilpot, 16 Geo. 424. But where, after
the dissolution of a copartnership, one
partner assigned his interest in a partner-
ship claim against the defendant to the
other partner, in a suit on such claim
brought in the name of both partners for
the benefit of the assignee, the declarations
of the assignor made after the assignment
are not admissible in favor of the defend-
ant. Gillighan v, Tebbetts, 33 Maine,
360.] In New York, a different doctrine
is established. "Walden v. Sherburne, 15
Johns. 409 ; Hopkins v. Banks, 7 Cowen,
650 ; Glark v. Gleason, 9 Cowen, 57 ; Ba-
ker V. Stackpole, Id. 420. So in Louisiana.
Lambeth v. Vawter, 6 Rob. La. R. 127.
See, also, in support of tlie text. Lacy v,
McNeil, 4 Dowl. & Ry. 7. "Whether the
acknowledgment of a debt by a partner,
after dissolution of the partnership, will
be sufficient to take the case out of the
statute of limitations, and revive the rem-
edy against the others, has been very
much controverted in this country ; and
the authorities to the point are conflicting
In England, it is now settled by Lord Ten-
terdeu's Act (9 Geo. 4, c. 14), that such
acknowledgment, or new promise, inde-
pendent of the fact of part payment, shall
not have such effect, except against the
party making it. This provision has been
adopted in the laws of some of the United
States. See Massachusetts, Rev. "Sts. ch.
120, § 14-17 ; remiont, Rev. Sts. ch. 58,
§§ 23, 27. And it has since been holden
CHiP. V.|
HEARSAY.
129
§ 113. A kindred principle governs in regard to the declarations
of agents. The principal constitutes the agent his representative, in
in England, where a debt was originally
contracted with a partnersliip, and more
tliau six years afterwards, but within six
years before action brought, the partner-
ship liaving been dissolved, one partner
made a partial payment in respect of the
debt, — that this barred the operation of
tlie statute of limitations ; although the
jury found that he made the payment
by concert with the plaintifl's, in tlie jaws
of bankruptcy, and in fraud of his late
partners. Goddard v. Ingram, 3 Ad. &
Kl. 839, N. s. The American cases seem
to have turned mainly on the question,
whether the admission of tlie existing in-
debtment amounted to the making of a
new contract, or not. The courts which
have viewed it as virtually a new contract,
have held, that the acknowledgment of
the debt by one partner, after the dissolu-
tion of partnership, was not admissible
against his copartner. This side of the
question was argued by Mr. -Justice Story,
witli his accustomed abihty, in delivering
the judgment of tlie court in Bell v. Mor-
rison, 1 Peters, 367, et seq. ; where, after
stating the point, he proceeded as follows :
" In the case of IBland v. Haselrig, 2 Vent.
151, where the action was against four,
upon a joint promise, and the plea of the
statute of limitations was put in, and the
jury found that one of the defendants did
promise within six years, and that the
others did not ; three judges, against Ven-
tris, J., held that the plaintift' could not
liave judgment against the defendant, who
had made the promise. This case has
been explained upon the ground, that the
verdict did not conform to the pleadings,
and establish a joint promise. It is very
doubtful, upon a critical examination of
the report, whether the opinion of the
court, or of any of the judges, proceeded
solely upon such ground. In Whitcomb
V. Whiting, 2 Doug. 652, decided in 1781,
in an action on a joint and several note
brought against one of the makers,, it was
held, that proof of payment, by one of the
others, of interest on the note and of part
of the principal, within six years, took the
case out of the statute, as against the de-
fendant who was sued. Lord Mansfield
said, ' payment by one is payment for all,
tlie one acting virtually for all the rest;
and in ths same manner, an admission by
one is an admission by all, and the law
raises the promise to pay, when the debt is
admitted to be due.' This Is the whole rea-
somng reported in the case, and is certainly
not very satisfactory. It assumes that
one party, who has authority to discharge,
has necessarily, also, authority to charge
the others ; that a virtual agency exists in
each joint debtor to pay for the whole ;
and that a virtual agency exists by analogy
to charge the whole. Now, this very posi-
tion constitutes the matter in controversy .
It is true, that a payment by one does en-
ure for the benefit of the whole ; but tliis
arises not so much from any virtual agency
for the whole, as by operation of law ; for
the payment extinguishes the debt ; if
such payment were made after a positive
refusal or prohibition of the other joint
debtors, it would still operate as an extin-
guishment of the debt, and the creditor
could no longer sue them. In truth, he
who pays a joint debt, pays to discharge
himself; and so far from binding the
others conclusively by his act, as virtually
theirs also, he cannot recover over against
them, in contribution, without such pay-
ment has been rightfully made, and ought
to charge them. When the statute has
run against a joint debt, the reasonable
presumption is, that it is no longer a sub-
sisting debt ; and, therefore, there is no
ground on which to raise a virtual agency
to pay that which is not admitted to exist.
But if this were not so, still there is a great
difference between creating a virtual agen-
cy, which is for the benefit of all, and one
which is onerous and prejudicial to all.
The one is not a natural or necessary con-
sequence from the other. A person may
well authorize the payment of a debt for
which he is now liable, and yet refuse to
authorize a charge, where there at present
exists no legal liabiMty to pay. Yet, if the
principle of Lord Mansfield be correct, the
acknowledgment of one joint debtor wiU
bind all the rest, even though they should
have utterly denied the debt at the time
when such acknowledgment was made.
The doctrine of Whitcomb v. Whiting has
been followed in England in subsequent
cases, and was resorted to in a strong man-
ner, in Jackson v. Eairbank, 2 H. Bl. 340,
where the admission of a creditor to prove
a debt, on a joint and several note under a
bankruptcy, and to receive a dividend,
was lield sufficient to charge a solvent
joint debtor, in a several action against
him, in which he pleaded the statute, aa
an acknowledgment of a subsisting debt.
It has not, however, been received without
hesitation. In Clark v. Bradshaw, 3 Esp.
155, Lord Kenyon, at Nisi Prius, expressed
some doubts upon it ; and the causa went
off on another ground. And in Bradram
1.30
LAW OP EVIDENCE.
[part II.
the transaction of certain business ; whatever, therefore, the agent
does, in the lawful prosecution of that business, is the act of the
V. Wharton, 1 Earn. & Aid. 463, the case
was very much shaken, if not overturned.
Lord Ellenborough, upon that occasion
used language, from which his dissatisfac-
tion with the whole doctrine may be clearly
inferred. ' This doctrine,' said he, ' of re-
butting the statute of limitations, by an
acknowledgment other than that of the
party himself, began with the case of
Whitcomb v. Whiting. By that decision,
where, however, there was an express ac-
• knowledgment, by an actual payment of a
part of the debt by one of the parties, I am
bound. But that case was fall of hard-
ships ; for this inconvenience may follow
from it. Suppose a person liable jointly
with tJiirty or forty others, to a debt; he
may have actually paid it, he may have
had in his possession the document by
which that payment was proved, but may
have lost Ids receipt. Then, though this
was one of the very cases whicli this stat-
ute was passed to protect, he may still be
bound, and his liability be renewed, by a
random acknowledgment made by some
one of the thirty or forty others, who may
be careless of what mischief he is doing,
and who may even not know of the pay-
ment which lias been made. Beyond tliat
'jase, therefore, I am not prepared to go,
so as to deprive a party of tlie advantage
given him by the statute, by means of an
implied acknowledgment.' In the Ameri-
can courts, so far as our researches have
extended, few cases have been litigated
upon this question. In Smith v. Ludlow,
6 Johns. 268, the sdit was brought against
both partners, and one of them pleaded
tlie statute. Upon tlie dissolution of the
partnership, public notice was given that
the other partner was authorized to adjust
all accounts ; and an account signed by
him, after such advertisement^ and within
six years, was introduced. It was also
proved, that the plaintilf called on the
partner, who pleacled the statute, before
the commencement of the suit, and re-
quested a settlepient, and that he then
admitted an account, dated in 1797, to
have been made out by him ; that lie
■ thought the account had been settled by
the other defendant, in whose hands the
books of partnership were; and tliat he
would see the other defendant on the sub-
ject, and communicate tlie result to the
plaintiff. The court held that this was
sufficient to take the case out of the stat-
ute; and said, that without any express
authprity, the confession of one partner,
alter the dissolution, will take a debt out
of the statute. The acknowledgment will
not, of itself, be evidence of an original
debt ; for that would enable one party to
bind the other in new contracts. But
the original debt being proved or admitted,
the confession of one will bind the otlier,
so as to prevent him from availing himself
of the statute. This is evident, from the
cases of Whitcomb v. Whiting, and Jackson
V. Fairbank ; and it results necessarily
from the power given to adjust accounts.
The court also thought the acknowledg-
ment of the partner, setting up the stat-
ute, was sufficient of itself to sustain the
action. 1'his case has the peculiarity of
an acknowledgment made by both part-
ners, and a formal acknowledgment by
the partner who was authorized to adjust
the accounts after the dissolution of the
partnership. There was not, therefore, a
virtual, but an express and notorious
agency, devolved on him, to settle the ac-
count. The correctness of the decision
cannot, upon the general view taken by
the court, be questioned. In Roosevelt v.
Marks, 6 Johns. Ch. 266, 291, Mr. Chan-
cellor Kent admitted the authority of
Whitcomb v. Wliiting, but denied that
of Jackson v. Fairbank, for reasons wliich
appear to us solid and satisfactory. Upon
some other cases in New York, we shall
have occasion hereafter to comment. In
Hunt V. Bridgham, 2 Pick. 581, tlie Su-
preme Court of Massachusetts, upon the
authority of the cases in Douglas, H. Black-
stone, and Johnson, held, that a partial
payment by the principal debtor on a note,
took tlie case out of tlie statute of limita-
tions, as against a surety. Tlie court do
not proceed to any reasoning to establish
the principle, considering it as the result
of the authorities. Slielton v. Cocke, 3
Munford, 191, is to the same effect; and
contains a mere annunciation of the rule,
without any discussion of its principle.
Simpson v. Morrison, 2 Bay, 533, pro-
ceeded upon a broader ground, and as
sumos the doctrine of the case in 1 Taunt.
104, hereinafter noticed, to be correct.
Whatever may be the just influence of
such recognitions of the principles of the
EngUsh cases, in other states, as the doc-
trine is not so settled in Kentucky, we
must resort to such recognition only as
furnishing illustrations to assist our rea-
soning, and decide the case now as if it
had never been decided before. By the
general law of partnership, the act of each
partner, during the continuance of the
partnership, and within the scope of its
CHAl'. T.j
HEARSAY.
131
principal, whom lie represents. And, " where the acts of the agent
will bind the principal, there his representations, declarations, and
jbjccts, binds all the others. It is con-
sidered the act of each, and of all, result-
ing from a general and mutual delegation
of autliority. Each partner may, there-
fore, bind the partnership by his contracts
in the partnership business ; but he cannot
bind it by any contracts beyond those lim-
its. A dissolution, however, puts an end
to the autliority. By the force of its terms,
it opwates as a revocation of all power to
create new contracts ; and the right of
partners as such, can extend no further
tiian to settle the partnership concerns
already existing, and to distribute the re-
maining funds. Even this right may be
qualified, and restrained, by the express
delegation of the whole authority to one
of the partners. The question is not, liow-
ever, as to the authority of a partner after
the dissolution to adjust an admitted and
subsisting debt ; we mean, admitted by
the whole partnership or unbarred by the
statute ; but whether he can, by his sole
act, after the action is barred by lapse of
time, revive it against all the partners,
without any new authority communicated
to him for this purpose. We think the
proper resolution of tliis point depends
upon anotlier, that is, whether the ac-
knowledgment or promise is to be deemed
a mere continuation of the original prom-
ise, or a new contract, springing out of,
and supported by, the original considera^
tion. We tliink it is tlie latter, both upon
principle and authority ; and if so, as after
the dissolution no one partner can create
a new contract, binding upon the others,
his acknowledgment is inoperative and
void, as to them. There is some confu-
sion in the language of the books, result-
ing from a want of strict attention to the
distinction here indicated. It is often
said, that an acknowledgment revives the
promise, when it is meant, that it revives
the debt or cause of action. The revival
of a debt supposes that it has once been
extinct and gone ; that there has been a
period in which it had lost its legal use
and validity. The act which revives it
is wliat essentially constitutes its new be-
ing, and is inseparable from it. It stands
not by its original force, but by the new
promise, which imparts vitality to it.
Proof of the latter is indispensable, to
raise the assumpsit, on whicli an action
can be maintained. It was this view of
the matter wliicli first created a doubt,
whetlier it was not necessary that a new
consideration should be proved to support
the promise, since the old consideration
was gone. That doubt has been over-
come ; and it is now held, that the origi-
nal consideration is sufficient, if recognized
to uphold the new promise, although the
statute cuts it off, as a support tor the old.
What, indeed, would seem to be decisive
on this subject is, that the new promise,
if qualified or conditional, restrains the
rights of the party to its own terms ; and
if he cannot recover by those terms, he
cannot recover at all. If a person promise
to pay, upon condition that the other do
an act, performance must be shown, before
any title accrues. If the declaration lays
a promise by or to an intestate, proof of
the acknowledgment of the debt by or to
his personal representative will not main-
tain the writ. Why not, since it estab-
lishes the continued existence of the debt '!
The plain reason is, that the promise is a
n?w one, by or to tire administiator him-
self, upon the original consideration ; and
not a revival of the original promise. So,
if a man promises to pay a pietxisting
debt, barred by the statute, when he is
able, or at a future day, his ability must
be sliown, or the time must be passed be-
fore the action can be maintained. VVliy ?
Because it rests on the new promise, and
its terms nmst be complied with. We do
not here speak of the form of alleging the
promise in the declaration ; upon which,
perhaps, there has been a diversity of
opinion and judgment; but of the tiict it-
selfj whether the promise ought to he laid
in one way or another, as an absolute, or
as a conditional promise ; which may de-
pend on the rules of pleading. This very
point came before the twelve judges, in
the case of Heyling v. Hastings, 1 Ld.
Eaym. 389, 421, in the time of Lord Holt.
There, one of the points was, 'whether
the acknowledgment of a debt within six
years would amount to a new promise, to
bring it out of the statute ; and they were
all of opinion that it would not, but that it
was evidence of a promise.' Here, then,
the judges manifestly contemplated the
acknowledgment, not as a continuation of
the old promise, but as evidence of a new
promise ; and that it is the new promise
whicli takes the case out of the statute.
Now, what is a new promise but a new
contract; a contract to pay, upon a pre-
existing consideration, which does not of
itself bind the party to pay independently
of the contract '! So, in Boy dell «. Drum-
mond, 2 Campb. 157, Lord EUenborough,
with his characteristic precision, said ;
' If a mail acknowledges the existence of
132
LAW OF EVIDENCE.
[PAET n.
admissions, respecting the subject-matter, will also bind him, if
made at tlie same time, and constituting jjart of the res gestce." ^
a debt, barred by the statute, the law has
been supposed to. raise anew promise to
pay it, and thus tlie remedy is revived.'
And it may be affirmed, that the general
current of the English, as well as the
American authorities, conforms to this
view of the operation of an acknowledg-
ment. In Jones v. Moore, 5 Binney, 678,
Mr. Chief Justice Tilghman went into an
elaborate examination of this very point;
and came to the conclusion, from a review
of all the cases, that an acknowledgment
of the debt can only be considered as evi-
dence of a new promise ; and he added,
* 1 cannot comprehend the meaning of re-
viving the old debt in any other manner,
than by a new promise.' There is a class
of cases, not yet adverted to, which mate-
rially illustrates the right and powers of
partners, after the dissolution of the part-
nership, and bears directly on the point
under consideration. In Hackley v. Pat-
rick, 3 Johns. 5c!6, it was said by the court,
that ' after a dissolution of the partnership,
the power of one party to bind the others
wholly ceases. There is no reason why
this acknowledgment of an account should
bind his copartners, any more than his
giving a promissory note, in the name of
the firm, or any other act.' And it was
therefore held, that the plaintiff must pro-
duce further evidence of the existence of
an antecedent debt, before he could re-
cover ; even though the acknowledgment
was by a partner authorized to settle all
the accounts of the firm. This doctrine
was again recognized by the same court,
in Walden v. Slierburne, 15 Johns. 409,
424, although it was admitted, that in
Wood V. Braddick, 1 Taunt. 104, a differ-
ent decision had been had in England. If
this doctrine be well founded, as we think
it is, it furnishes a strong ground to ques-
tion the efficacy of an acknowledgment to
bind the partnership for any purpose. If
it does not estabhsh the existence of a
debt against the partnership, why should
it be evidence against it at all? If evi-
dence, aliunde, of facts within the reach of
the statute, as the existence of a debt,
be necessary before the acknowledgment
binds, is not this letting in all the mis-
chiefs against which the statute intended
to guard the parties ; viz., the introduction
of stale and dormant demands, of long
standing, and of uncertain proof! If the
acknowledgment, per se, does not bind the
other partners, where is the propriety of
admitting proof of an antecedent debt, ex-
tinguished by the statute as to them, to
be revived without their consent? It
seems difficult to find a satisfactory reason
why an acknowledgment should raise a
new promise, when the consideration, up-
on which alone it rests, as a legal obliga-
tion, is not coupled with it in such a shape
as to bind the parties ; that the parties are
not bound by the admission of the debt, as
a debt, but are bound by the acknowledg-
ment of the debt, as a promise, upon ex-
trinsic proof The doctrine in 1 Taunt.
104, stands upon a clear, if it be a legal,
ground ; that, as to the things past, the
partnership continues, and always must
continue, notwithstanding the dissolution
That, liowever, is a matter which we are
not prepared to admit, and constitutes the
very ground now in controversy. The
light in which we are disposed to consider
this question is, that after a dissolution of
a partnership, no partner can create a cause
of action against the other partners, except
by a new authority communicated to him
for that purpose. It is wholly immaterial,
what is the consideration which is to raise
such cause of action ; whether it be a sup-
posed preexisting debt of the partnership,
or any auxiliary consideration, which
might prove beneficial to them. Unless
adopted by them, they are not bound by
it. When the statute of limitations has
once run against a debt, the cause of action
against the partnership is gone. The ao
knowledgment, if it is to operate at all, is
to create a new cause of action ; to revive
a debt which is extinct; and thus to give
an action, which has its life from the new
promise implied by law from such an ac-
knowledgment, and operating and limited
by its purport. It is, then, in its essence,
the creation of a new right, and not the
enforcement of an old one. We think,
that the power to create such a right does
not exist after a dissolution of the partner-
ship in any partner."
It is to bo observed, that in tliis opinion
the court were not unanimous ; and that
the learned judge declares that the major-
ity were "principally, though not exclu-
sively, influenced by the course of decisions
in Kentucky," where the action arose. A
similar view of the question has been
taken by the courts of Pennsylvania, both
before and since the decision of Bell v.
Morrison; Levy v. Cadet, 17 Serg. &
Kaw. 127 ; Searight v. Craighead, 1 Fenn.
Story on Agency, § 134^137.
CHAP, v.]
HEARSAY.
133
They are of the natuie of original evidence, and not of hearsay;
the representation or statement of the agent, in such cases, being
the ultimate fact to be proved, and not an admission of some
other fact.^ But, it must bo remembered, that the admission
of the agent cannot always be assimilated to the admission of
the principal. The party's own admission^ whenever made, may
be given in evidence against him ; but the admission or declaration
of his agent binds him only when it is made during the continu-
ance of the agency in regard to a transaction then depending et
dumfervet opus. It is because it is a verbal act, and part of the
res gestae, that it is admissible at all ; and therefore, it is not neces-
135; and it has been followed by the
Courts of Indiana. Yandes v. Lefavour,
2 Blackf 371. Other judges have viewed
such admissions not as going to create a
new contract, but as mere acknowledg-
ments of the continued existence of a debt
previously created, thereby repelling the
presumption of payment, resulting from
lapse of time, and thus taking the case out
of the operation of the statute of limita-
tions. To this effect are White v. Hale, 3
Pick. 291 ; Martin v. Root, 17 Mass. 222,
227 ; Cady v. Shepherd, 11 Pick. 400 ;
Vina* V. Burrill, 16 Pick. 401 ; Bridge
V, Gray, 14 Pick. 61 ; Patterson v.
Choate, 7 Wend. 441 ; Hopkins v. Banks,
7 Cowen, 650; Austin v. Bostwick, 9
Conn. 496 ; Greenleaf v. Quincy, B Fairf.
11 ; Mclntire v. Oliver, 2 Hawks, 209 ;
Ward V. Howell, 5 Har. & Johns. 60;
Fisher v. Tucker, 1 McCord, Cli. E. 175;
Wheelock ;;. Doolittle, 3 Washb. Vt. R.
440. In some of the cases a distinction is
strongly taken between admissions which
go to establish the original existence of
the debt, and those which only show that
it has never been paid, but still remains in
its original force ; and it is held, that be-
fore the admission of a partner, made
after the dissolution, can be received, the
debt must first be proved, aliunde. See
OwJngs V. Low, 5 Gill. & Johns. 134, 144 ;
Smith V. Ludlow, 0 Johns. 267 ; Patterson
v. Choate, 7 Wend. 441, 445; Ward v.
Howell, Fisher v. Tucker, Plopkins v.
Banks, Vinal v. Burrill, uhi supra; Shel-
tou V. Cocke, 3 Munf. 197. In Austin v.
Bostwick, the partner making the admis-
sioBi had become insolvent ; but this was
held to make no diflerenee, as to the ad-
missibility of his declaration. A distinc-
tion has always been taken between ad-
missions by a partner after the dissolution,
but before the statute of limitations has
attached to the debt, and those made
afterwards ; the former being held receiv-
able, and the latter not. Fisher v. Tucker,
1 McCord, Ch. R. 175. And see Scales o.
Jacob, 3 Bing. 638 ; Gardner v. McMahon,
3 Ad. & El. 566, N. s. See farther on the
general doctrine, post, § 174, note. In all
cases, where the admission, whether of a
partner or other joint contractor, is re-
ceived against liis companions, it must
have been made in good faith. Coit v.
Tracy, 8 Conn. 268. See also Chardon v.
Oliphant, 2 Const. R. 685 ; cited in Coll-
yer on Partn. 236, n. (2d Am. ed.). It
may not be useless to observe, that BeU v.
Morrison was cited and distinguished,
partly as founded on the local law of Ken-
tucky, in Parker v. Merrill, 6 Greenl. 47,
48 ; and in Greenleaf v. Quincy, 3 1 airf.
11 ; and that it was not cited in the
cases of Patterson o. Choate, Austin v.
Bostwick, Cady v. Shepherd, Vinal v.
Burrill, and Yandes i\ Lefavour, though
these were decided subsequent to its pub-
lication. [* Partners, after the dissolution
of the partnership, and aside from any
agency in settling the business, are per-
haps fairly to be regarded in the light of
ordinary joint contractors ; and if both are
parties to the action, the declarations of
both, in regard to the common indebted-
ness, are admissible. But where only one,
or any number less than the whole, are
parties, the mere declarations and admis-
sions of a co-contractor, not a party, and
unaccompanied by any act in iurtherance
of the common duty or obligation, are not
ordinarily held admissible evidence M^ainst
the others, but the cases are contiictiiig
upon this point. Where payments weie
made by a co-contractor, it was held sutli
cient to remove the bar of the statute of
limitations, even when such payments
were made by the principal debtor, and
the suit was against the surety alone
Joslyn V. Smith, 13 Vt. Rep. 353.]
1 1 Phil. Evid. 381.
12
,134
LAW OF EVIDENCE.
[part II.
sary lo call the agent himself to prove it ; ^ but wherever what he
did is admissible in evidence, there it is competent to prove what
he said about the act while he was doing it ; ^ and it follows, that
where liis riglit to act in the particular matter in question has
ceased, the principal can no longer be affected by his declarations,
they being mere hearsay.^ [ * Then the declaration of the driver of
a car, after the car had stopped, assigning the reason why he did
not stop the car, and thus prevent the injury to plaintiff, while
crossing the street, that he could not stop the car because the
brakes were out of order, being made after the injury was in-
flicted and the transaction terminated, is not admissible against
tlie company in whose employ such driver was, it being mere
hearsay.*]
1 Doe V. Hawkins, 2 Ad. & El. 212,
N. s. ; Sauniere v. Wode, 3 Harrison, E.
299.
2 Gartli V. Howard, 8 Bing. 451 ; Fair-
lie u. Hastings, 10 Ves. 123, 127; The
Mechanics Banlc of Alexandria v. The
Bank of Columbia, 5 Wheat. 336, 337 ;
Langhorn v. AUnutt, 4 Taunt. 519, per
Gibbs, J. ; Hannay v. Stewart, 6 Watts,
487, 489 ; Stockton v. Demuth, 8 Watts,
89 ; Story on Agency, 126, 129, note (2) ;
Woods V. Banks, 14 N. Hamp. 101 ;
Cook'/ V. Norton, 4 Gush. 93. In a case
of libel for damages, occasioned by colli-
sion of ships, it was held that the admis-
sion of tlie master of the ship proceeded
against might well be articulated in the
Ubel The Manchester, 1 W. Eob. 62.
But it does not appear, in the report,
whether the admission was made at the
time of the occurrence or not. [The dec-
larations of the master concerning the
contract of the steamer, are admissible in
a suit against the owners. The Enter-
prise, 2 Curtis, C. C. 317.] T)ie question
has been discussed, whether there is any
substantial distinction between a written
entry and an oral declaration by an agent,
of the fact of liis having received a par-
ticular rent ibr his employer. The case
was "lie i)i' a sub-agent, employed by a
stewa'd to collect rents, and the declara-
tion o;'.creil in evidence was, "M. N. paid
mo the iialf-y-ear's rent, and here it is."
Its admissibility was argued, both as a
declaration against mterest, and also as
made in the course of discharging a duty ;
and tlie court inclined to admit it, but
took time for advisement. Eursdon v.
Clogg, 10 M. & W. 572; infra, § 149.
St-e also Regina v. Hall, 8 C'. & P. 358 ;
Allen 0. ]);iistone, Id. 760; Lawrence v.
Thatcher, 6 C. & P. 669 ; Bank of Munroe
V. Field, 2 Hill, E. 445 ; Doe v. Hawkins,
2 Ad. & El. 212, N. s. Whether the dec-
laration or admission of the agent made
in regard to a transaction already past
but while his agency for similar objects
still continues, will bind the principal, doef
not appear to have been expressly de
cided ; but the weight of authority is it
the negative. See the observations of
Tindal, C. J., in Garth v. Howard, smra.
See also Mortimer v. McCallan, 6, M. &
W. 58, 69, 73 ; Haven v. Brown, 7 Greenl.
421, 424 ; Thalhimer v. Brinkerhoff, 4
Wend. 394 ; City Bank of Baltimore v.
Bateman, 7 Har. & Johns. 104; Stewart
son V. Watts, 8 Watts, 392; Betham v.
Benson, Gow. E. 45, 48, n. ; Baring v.
Clark, 19 Pick. 220 ; Parker v. Green, 8
Met. 142, 143 ; Plumer v. Briscoe, 12 Jur.
351 ; 11 Ad. & El. 46, N. s. [Burnliam v.
Ellis, 39 Maine, 319]. Where the fraudu-
lent representations of the vendor are set
up in defence of an action for the price of
land, the defence may be maintained by
proof of such representations by the ven-
dor's agent who effected the sale ; but it
is not competent to inquire as to his
motives or inducements for making them.
Hammatt v. Emerson, 14 Shepl. 308.
8 Eeynolds v. Eowley, 3 Eob. Louis.
E. 201 ; Stiles v. The Western Eailroad
Co. 8 Met. 44. [The declarations of a son
while employed in performing a contract
for Ins "services, made by him as agent for
his father, are not admissible in evidence
to prove the terms of the contract. Cor-
bin V. Adams, 6 Gush. 93. See Printup
V. Mitchell, 17 Geo. 558 ; Covington, &c.
E. E. Co. V. Ingles, 15 B. Mon. 637;
Tuttle V. Brown, 4 Gray, 457, 460.]
■* [* Luby V. The Hudson Elver Eail-
road Co., 17 New York Ct. App. 131.
But in Insurance Company v. Woodruff,
(mAP. T.J HEARSAY. 135
§ 114. It is to be observed, that the rule admitting the declara-
tions of the agent is founded upon the legal identity of the agent
and the principal ; and therefore they bind only so far as there is
authority to make them.^ Where this authority is derived by
implication from aiithority to do a certain act, the declarations of
the agent, to be admissible, must be part of the res gestce? An
authority to make an admission is not necessarily to be implied
from an authority previously given in respect to the tiling to which
the admission relates.^ Thus it has been held,^ that the declara^
tions of the bailee of a bond, intrusted to him by the defendant,
were not admissible in proof of the execution of the bond by the
bailor, nor of any other agreements between the plaintiff and
defendant respecting the subject. The res gestae consisted in the
fact of the bailment, and its nature ; and on these points only
were the declarations of the agent identified with those of the
principal. As to any other facts in the knowledge of the agent,
he must be called to testify, like any other witness.^
[* § 114a. Considerable nicety of discrimination will be found in
some of the cases, in regard to the extent to which public corporate
companies, engaged in the transportation of freight and passengers,
are responsible for the declarations and admissions of their agents
and employees, through whose instrumentality their whole business
is transacted. In general, such companies are not responsible for
the declarations or admissions of any of their servants beyond the
immediate sphere of their agency, and during the transaction of
2 Dutoher, 541, it was held, two judges meant that such declarations are evidence
dissenting, that the declarations and ad- only where they relate to the identical
missions of the company's agent, author- contract that is the matter in controversy,
ized to receive premiums and deliver Dome v. Southwork Man. Co. 11 Cush.
policies, respecting the delivery of a pol- 205 ; Fogg v. Child, 13 Barb. 216.]
icy, are admissible, and bind the company ^ Phil. & Am. on Evid. 402. As to tlie
in an action upon the policy, although evidence of authority inferred from cir-
made after the loss. But this case is cer- cumstances, see Story on Agency, § 87-
tainly not maintainable upon general 106, 259, 260.
principles.] * Fairhe v. Hastings, 10 Ves. 123.
1 [Thus where the cashier of a bank, '^ Masters v. Abraham, 1 Esp. 375
being inquired of by the surety upon a (Day's ed.), and note (1); Story on
note, said, that the note had been paid. Agency, § 135-143 ; Johnston v. Ward,
and thereupon the surety released prop- 6 Esp. 47. [But tlie declarations of a
erty which he held to indemnify himself professed agent, however publicly made,
for any liability on the note, when in fact and although accompanied by acts, as by
the note had not been paid, it was held an actual signature of the name of the
that these statements of the cashier were principal, are not competent evidence in
not within his authority, and were inad- favor of third persons to prove the author-
missible against the bank. Bank v. Stew- ity of the agent, when questioned by the
ard, 37 Maine, 519. See also Runk v. principal. Mussey v. Beecher, 3 Cush.
Ten Eyck, 4 Zabr. 756.] 517 ; Brigham v. Peters, 1 Gray, 145;
2 IBy being part of the res gestcej is Trustees, &c. v. Bledsoe, 5 Ind. 133.]
136 LAW OP BTIDENCE. [PABT II,
the business in which they are employed. Thus the declara-
tions of the conductor of a railway train, as to the mode in which
an accident occurred, made after its occurrence ; ^ or those of an
engineer, made under similar circumstances, ^ are not admissible.
But it lias sometimes been held, in such cases, that the admis-
sions of the president of the company, or of its general agent,
might be received without regard to' their forming part of any
particular act of agency ; it being assumed that all his declara-
tions about the business of the company came within the range
of his agency,^ but this seems questionable. But in an action^
against a railway company, for the loss of baggage, the declarar
tions of the baggage-master, conductor, or station agent, as to the
manner of the loss, made in answer to inquiries on behalf of the
owner, the next morning after the loss, were held admissible, and
as coming within tlie scope of the agency and during its continu-
ance.*]
§ 115. It is upon the same ground that certain entries, made hy
third persons, are treated as original evidence. Entries by third
persons are divisible into two classes : first, those whicli are made
in the discharge of official duty, and in the course of professional
employment ; and, secondly, mere private entries. Of these latter
we shall hereafter speak. In regard to the former class, the entry,
to be admissible, must be one whicli it was the person's duty to
make, or whicli belonged to the transaction as part thereof, or
which was its usual and proper concomitant.^ It must speak only
to that whicli it was his duty or business to do ; and not to extra-
neous and foreign circumstances.^ The party making it must also
have had competent knowledge of the fact, or it must have been
part of his duty to have known it ; there must have bfeen no par-
ticular motive to enter that transaction falsely, more than any
1 [* Griffin v. Montgomery, &c., R. R. 132. [The book of minutes of a railroad
Co., 26 Geo. K. 111. company are admissible to prove what
2 Robinson v. Fitchburgh R. R. Co., 7 took place at a meeting of the stockholders
Gray, 92. of the company. Black u. Lamb, 1 Beas-
3 Cliarleston, &c, R. R. Co. u. Blake, ley, 108.]
12 Rich. Law, 634. " Chambers v. Bernasconi, 1 C. & J.
■* Morse v. Conn. River R. R. Co., 6 451 ; 1 Tyrwh. 355, s. c. ; 1 Cr. Mees. '&
Gray, 450.] R. 347, s. c. In error. This limitation
<* The doctrine on the subject of con- has not been applied to private entries
temporaneous entries is briefly but lucidly against the interest of the party. Thus,
expounded by Mr. Justice Parke, in Doe where the payee of a note against A., B.)
d. Pattesliall v. Turford, 3 B. & Ad. 890. & C, indorsed a partial payment as re-
Se6 also Poole v. Dicas, 1 Bing. n. c. ceived from B., adding that the whole
654 ; Pickering v. Bp. of Ely, 2 Y. & C. sum was originally advanced to A. only ;
249 ; Regina v. Worth, 4 Ad. & El. n. s. in an action by B. against A., to recovef
CHAP. V.J HEAESAT. 137
other ; and the entry must have been made at or about the time
of the transaction recorded. In such cases, the entry itself is ad-
mitted as original evidence, being part of the res gestce. The gen-
eral interest of the party, in making the entry, to show that he has
done Ms official duty, has notlling to do with the question of its
admissibility ; ^ nor is it material whether he was or was not com-
petent to testify personally in the case.^ If he is living, and
competent to testify, it is deemed necessary to produce him.^ But
if he is called as a witness to the fact, the entry of it is not thereby
excluded. It is still an independent and original circumstance, to
be weighed with others ; whether it goes to corroborate or to im-
peach the testimony of the -witness who made it. If the party who
made the entry is dead, or, being called, has no recollection of the
transaction, but testifies to his uniform practice to make all his
entries truly, and at the time of each transaction, and has no
doubt of the accuracy of the one in question ; the entry, unim
peached, is considered sufficient, as original evidence, and not
hearsay, to establish the fact in question.*
' § 116. One of the eai4iest reported cases, illustrative of this sub-
ject, was an action of assumpsit, for beer sold and delivered, the
plaintiff being a brewer. The evidence given to charge the de-
fendant- was, that, in the usual course of the plaintiff's business,
the draymen came every night to the clerk of the brewhouse, and
gave him an account of the beer delivered during the day, which
be entered in a book kept for that purpose, to which the draymen
the money thus paid for his use, the in- And see Doe v. Wittcomb, 15 Jur. 778.
dorsement made by the payee, who v^as [* But if the entry was not in the course
dead, was lield admissible to prove not of the duty of the person, and not against
only the payment of the money, but the his interest, it is not receivable. "Webster
other iiict as to the advancement to A. v. "Webster, 1 F. & F. 401.1
Davies v. Humplireys, 6 Mees. & "Welsh. ^ Gleadow v. Atkin, 1 Cromp. & Mees.
153; Marks v. Laliee, 3 Bing. N. c. 408. 423, 424; 3 Tyrw. 302, 303, s. c. ; Short
A.nd in a subsequent case it was held, v. Lee, 2 Jac. & Walk. 489.
that where .an entry is admitted as being ^ Nichols v. Webb, 8 "Wheat. 326;
against the interest of the party making "Welch, w. Barrett, 15 Mass, 380; Wilbur
it, it carries with it the whole statement; v. Selden, 6 Cowen, 162; Farmers Bank
but tliat if the entry is made merely in the v. Whitehill, 16 S. & K 88, 90; St.kea
course of a man's duty, then it does not v. Stokes, 6 Martin, n. s. 351 ; Herrijig v.
go beyond those matters which it was his Levy, 4 Martin, n. s. 883 ; Brewster v.
duty to enter. Percival v. Nanson, 7 Eng. Doan, 2 Hill, N. Y. Rep. 537 ; Uavis v.
Law & Eq. Rep. 538; 21 Law J. Rep. Fuller, 12 Verm. 178.
Exch. 1, N. s. ; 7 E,xch. Rep. 1, s. c. * Bank of Monroe v. Culver, 2 Hill,
1 Per Tindal, C. J., in Poole v. Dicas, 531 ; New Haven County Bank v. Mitch-
1 Bing. X. c. 654 ; Dixon v. Cooper, 3 ell, 15 Conn. R. 200 ; B.ank of Tennessee
Wils. 40; Benjamin w. Porteous. 2 H. Bl. v. Cowen, 7 Humph. 70. See hi/,a, §5
690; Williams v. Geaves, 8 C. &P. 592; 436, 437, note (4). [The protest of a
Augusta V. Windsor, 1 Appleton, R. 317. notary-public, authenticated in the usual
12*
138 LAW OP EVIDENCE. [PAKT II.
set their hands ; and tliis entry, with proof of the drayman's hand-
writing, and of his deatli, was held sufficient to maintain the action.^
In anotlier case,^ before Lord Kenyon, which was an action of tro-
ver for a watch, where the question was, whether the defendant
had delivered it to a third person, as the plaintiff had directed ;
an entry of the fact by the defendant himself in his shop-book,
kejat for that purpose, with proof that such was the usual mode,
was held admissible in evidence. One of the shopmen had sworn
to the delivery, and his entry was offered to corroborate his testi-
mony ; but it was admitted as competent original evidence in the
cause. So, in another case, where the question was iipon the pre-
cise day of a person's birth, the account-book of the surgeon who
attended his mother on that occasion, and in which his profes-
sional services and fees were charged, was held admissible, in proof
of the day of the birth.^ So where the question was, whether a
notice to quit had been served upon the tenant, the indorsement
of service upon a copy of the notice by the attorney who served
it, it being shown to be the course of business in his office to pre-
serve copies of such notices, and to indopse the service thereon,
was held admissible in proof of the fact of service.* Upon the
way by his signature and official seal, was not admissiWe in evidence, in an ac-
found among his papers after his death, is tion for the price of the coals. Brain v,
good secondary evidence. Porter v. Jud- Preece, 11 M. & W. 773; [*Iiewis v
son, 1 Gray, 175.] But upon a question Kramer, 3 Md. 265.]
of tlie infancy of a Jew, where the time ^ Digby v. Stedman, 1 Esp. 328.
of his circumcision, which by custom is ^ Higham v. Ridgway, 10 East, 109.
on the eightli day after his birth, was pro- See also 2 Smith's Leading Cases, 183-
posed to be shown by an entry of the 197, note, and the comments of Bayley,
fact, made by a deceased Rabbi, whose B., and of Vaughan, B., on tliis case, in
duty it was to perform the oiEice and to Gleadow v. Atkin, 1 Cromp. & Mees. 410,
make the entry ; the entry was held not 423, 424, 427, and of Professor Parke, in
receivable. Davis v. Lloyd, 1 Car. & Kir. the London Legal Observer for June, 1832,
275. Perhaps because it was not made p. 229. It will be seen, in that case, that
against the pecuniary interest of the the fact of the surgeon's performance of
Rabbi. See infra, § 147. [* The ques- the service charged was abundantly proved
tion involved in the preceding section is by other testimony in the cause ; and that
considerably discussed by a learned writer, nothing remained but to prove the precise
and the cases carefully reviewed in a lead- time of performance ; a fact in whicli the
ing article, 3 Law Reg., n. s. 641.] surgeon had no sort of interest. But if it
1 Price V. Lord Torrington, 1 Salt, were not so, it is not perceived wliat dif-
285; 2 Ld. Eaym. 873, s. o. ; 1 Smith's ference it could have made, the principle
Leading Cases, 189. But the courts are of admissibility being the contemporane-
not disposed to carry the doctrine of tliis ous character of the entry, as part of the
case any farther. 11 M. & W. 775, 776. res gestae. See also Herbert v. Tuckal, T.
Therefore, where the coals sold at a mine Raym. 84 ; Augusta v. Windsor, 1 Apple-
were reported daily by one of the work- ton, R. 317.
men to the foreman, who, not being able * Doe v. Turford, 8 B.arn. & Ad. 890 ;
to write, employed another person to en- Champneys v. Peck, 1 Stark. R. 326 ; Res
ter the sales in a book ; it was held, the v. Cope, 7 C. & P. 720. [Where such an
foreman and the worlonan who reported indorsement of service had been admitted
the sale, both being dead, that the book to prove the fact of service of notice, tha
CHAP, v.]
HEARSAY.
139
same ground of the contemporaneous character of an entry made
in the ordinary course of business, the books of the messenger of
a bank, and of a notary-public, to prove a demand of payment
from the maker, and notice to tlie indorser of a promissory note,
have also been held admissible.^ The letter-book of a merchant,
party in the cause, is also admitted as primd facie evidence of the
- contents of a letter addressed by him to the other party, after no-
tice to such party to produce the original ; it being the habit of
merchants to keep such a book.^ And, generally, contemporaa—
eous entries, made by third persons, in their own books, in the
ordinary course of business, the matter being within the peculiar
knowledge of the party making the entry, and there being no ap-
parent and particular motive to pervert the fact, are received as
original evidence ; ^ though the person who made the entry has
no recollection of the fact at the time of testifying ; provided he
swears that he should not have made it, if it were not true.* The
same principle has also been applied to receipts, and other acts
contemporaneous with the payment, or fact attested.®
§ 117. The admission of the party's own shop-hooks, in proof ol
person who made the service and the in-
dorsement being dead, parol declarations
of his, contradicting tlie indorsement,
were held inadmissible. Stapylton v.
Clough, 22 Eng. Law & Eq. R. 275.] ■
1 Nichols V. Webb, 8 Wheat. 326 ;
Welch V. Barrett, 15 Mass. R. 380 ; Poole
V. Dicas, 1 Bing. n. o. 649 ; Halliday v.
Martinett, 20 Johns. 168; Butler u. Wright,
2 Wend. 369; Hart v. WiUiams, Id. 513;
Nichols V. Goldsmith, 7 Wend. 160 ; New
Haven Co. Bank v. Mitchell, 15 Conn.
206 ; Sheldon v. Benham, 4 Hill, N. Y.
R. 123. [In an action against an infant
for money paid by the plaintiff to a third
person at the infant's request, for articles
furnished the infant by such third person,
the defence of infancy being set up, the
books of account and the testimony of such
third person are admissible to show that
the articles furnished the infant were nec-
essaries. Swift V. Bennett, 10 Gush. 436,
439.]
2 Pritt V. Fairclough, 3 Campb. 305 ;
Hagedoi-n v. Reid, Id. 377. The letter-
book is also evidence that the letters cop-
ied into it have been sent. But it is not
evidence of any other letters in it, than
those which the adverse party has been re-
quired to produce. Sturge v. Buclianan,
2 P. & D. 573 ; 10 Ad. & El. 598, s. c.
3 Doe V. Turford, 3 B. & Ad. 890, per
Parke. J. ; Doe v. Robson, 15 East, 32 ;
Goss V. Watlington, 8 Br. & B. 132 ; Mid-
dleton V. Melton, 10 B. & Cr. 317 ; Marks
V. Lahee, 3 Bing. n. c. 408, 420, per
Parke, J. ; Poole v. Dicas, 1 Bing. n. c.
649, 653, 654 ; Dow v. Sawyer, 16 Shepl.
117. In Doe k. Vowles, 1 M. & Rob. 216, the
tradesman's bill, which was rejected, was
not contemporaneous with the fact done.
Haddow v. Parry, 3 Taunt. 303 ; Whitnash
V. George, 8 B. & Cr. 556 ; Barker v. Ray,
2 Russ. 63, 76 ; Patton v. Craig, 7 S. & R.
116, 126 ; Parmers Bank v. Whiteliill, 16
S. & R. 89 ; Nourse v. McCay, 2 Rawle, 70 ;
Clark V. Magruder, 2 H. & J. 77; Richard-
son V. Cary, 2 Rand. 87 ; Clark v. Wilmot,
1 Y. & Col. N. s. 53.
* Bunker v. Shed, 8 Met. 150.
^ Sherman ;;. Crosby, 11 Jolms. 70;
Holladay v., Littlepage, 2 INIunf. 316;
Prather v. Johnson, 3 H. & J. 487 ; Sher-
man V. Atkins, 4 Pick. 283 ; Carroll v. Ty-
ler, 2 H. & G. 54; Cluggage v. Swan, 4
Binn. 150, 154. But the letter of a third
person, acknowledging the receipt of mer-
chandise of the plaintiff, was rcjeclcd, in
an action against the party, who liad rec-
ommended liim as trustwortliy, in Longe-
necker u. Hyde, 6 Binn. 1.; and liie re-
ceipts of living persons were rejected in
Warner v. Price, 3 Wend. 397 ; Cutbush
V. Gilbert, 4 S. & R. 551 ; Spargo v. Brown,
9 E. & C. 935. See infra, § 120.
140
LAW OF EVIDENCE.
[PAET n.
the deliycry of goods therein charged, the entries having been
made by his clerk, stands upon tlie same principle which we are
now considering. The books must have been kept for the purpose ;
and the entries must have been made contemporaneous with the
delivery of the goods, and by the person whose duty it was, for
the time being, to make them. In such cases the books are held
admissible, as evidence of the delivery of the goods therein charged,
where the nature of the subject is such as not to render better evi-
dence attainable.^
§ 118. In the United States, this principle has been carried far-
ther, and extended to entries made by the party himself, in his own
shop-books.2 Though this evidence has sometimes been said to be
^ Pitman ». Maddox, 2 Salk. 690 ; Ld.
Eaym. 732, s. c. ; Lefebure v. Worden, 2
Ves. 54, 55 ; Glynn v. The Bank of Eng-
land, Id. 40 ; Stei-ret v. Bull, 1 Binn. 234.
See also Tait on Evid. p. 276. An inter-
val of one day, between the transaction
and the entry of it in the book, has been
deemed a valid objection to the admissi-
bility of the book in evidence. Walter v.
BoUman, 8 Watts, 514. But the law fixes
no precise rule as to the moment when the
entry ought to be made. It is enough if
it be made " at or near the time of the
transaction." Curren v. Crawford, 4 S. &
R. 3, 5. Therefore, where the goods were
delivered by a servant during the day,
and tlie entries were made by the master
at night, or on the following morning,
from tlie memorandums made by tlie ser-
vant, it was hold sufficient. Ingraham v.
Bockius 9 S. & R. 285. But such entries,
made later than the succeeding day, have
been rejected. Cook v. Ashmead, 2 Miles,
E. 268. VVliere daily memoranda were kept
by workmen, but the entries were made by
the employer sometimes on the day, some-
times every two or tlrree days, and one
or two at longer intervals, they wore admit-
ted. Morris V. Briggs, 3 Cush. 842. [See
also Barker v. HaskeU, 9 Gush. 218 ; Hall
V. GUdden, 89 Maine, 445. But see Kent
V. Garvin, 1 Gray, 148.] Whetlier entries
transcribed from a slate, or card, into tlie
book, are to be deemed original entries, is
not universally agreed. In Massachusetts,
they are admitted. Faxon v. Ilollis, 13
Mass. 427 ; [Smith v. Sanford 12 Pick.
139 ; Barksr o. Haskell, 9 Cush. 218.] In
Peiinsifk-r.iiia, they were rejected, in Ogden
V. Miller, 1 i5r.^wne, 147 ; but have since
been admitted, where tliey were trans-
cribed forthwith into the book ; Ingraham
V. Bockius, 9 S. & R. 285 ; Patton v. Ryan,
4 Rawlc. 408; .Tones v. Long, 3 Watts,
325 ; and not later, in the case of a me-
chanic's charges for his work, than the
evening of the second day. Hartly v.
Brooks, 6 Wiiart. 189. But where sever-
al intermediate days elapsed before they
were thus transcribed, the entries have
been rejected. Forsythe v. Norcross, 5
Watts, 432. But see Kocli ». Howell, 6
Watts & Serg. 350. [Such entries are not
written contracts, but the private memo-
randa of the party, becoming, with the aid
of Ids suppletory oath, under an exception
to the general rules, competent evicfence
of sale and delivery. Although compe-
tent and strong evidence as affecting the
party offering them, yet they are not con
elusive, but may be explained, and, as it
would seem, may be shown to have been
erroneous. Thus, in an action for goods
sold and delivered, if the plaintiff, to prove
his case, produces his books of account, in
which the goods are charged to a third
person ; he may then be permitted to
show by parol, that the goods were not
sold to such third person, but were sold to
the defendant, and were charged to such
person at the defendant's request. James
V. Spaulding, 4 Gray, 451.] [*It seems
to have been questioned whether the
docket, or book of accounts, kept by an
attorney is competent evidence, in itself,
of his right to recover for his services.
Hale's Ex'rs v. Ard's Ex'rs, 12 Wright,
Penn. St. ; Briggs r. Georgia, 15 Vt.
Rep. 61. And the party's cash-book of
entries of money paid and received is not
admissible as evidence of a particular pay-
ment. Maine v. Harper, 4 Allen, 115.1
^ In the following states the admission
of the party's own books, and his own en-
tries, has been either expressly permitted,
or recognized and regulated by statute-;
namely, Vm'mont (1 Tolman's Dig. 185) ;
Connecticut (Rev. Code, 1849, tit. 1, § 216) j
LHAP. V,J
HEAESAT.
141
admitted contrary to the rules of the common law, yet in general
its admission will bo found in perfect harmony with those rules,
the entry being admitted only where it was evidently contempora
neous with the fact, and part of the res gestce. Being the act of
the party himself, it is received with greater caution ; but still it
may be seen and weighed by the jury.^
Delaware (St. 25 Geo. 11., Rev. Code, 1829,
p. 89) ; Mari/land, as to sums under ten
pounds in a year (1 Uorsey's Xaws of Ma-
ryland, 73, 203) ; Virijinia (Stat. 1819, 1
Rev. Code, ch. 128, §§'7, 8, 9) ; North Car-
olina (Stat. 1756, ch. 57, § 2, 1 Rev. Code,
1836, ch. 15);. 5oK(/i Carolina {St. 1721,
Sept. 20. See Statutes at Large, vol. 3,
p. 799, ©ooper's edit. 1 Bay, 43) ; Tennessee
( Statutes of Tennessee, by Carruthers and
Nicholson, p. 131). In Louisiana and in
Maryland (except as above), entries made
by the party himself are not admitted.
Civil Code of Louisiana, Arts. 2244, 2245 ;
Johnson v. Breedlove, 2 Martin, n. s. 508 ;
Herring v. Levy, 4 Martin, n. s. 383 ; Cav-
elier v. Collins, 3 Martin, 188 ; Martinstein
V. Creditors, 8 Rob. 6 ; Owings v. Hender-
son, 5 Gill & Johns. 124, 142. In all the
other states tliey are admitted at common
law, under various degrees of restriction.
See Coggswell v. DolHyer, 2 Mass. 217 ;
Poultney v. Ross, 1 Dall. 239 ; Lynch v.
McHugo, 1 Bay, 33 ; Foster v. Sinkler, Id.
40 ; Slade v. Teasdale, 2 Bay, 173 ; Lamb
V. Hart, Id. 362 ; Thomas v. Dyott, 1 Nott
& McC. 186 ; Burnham v. Adams, 5 Verm.
313 ; Story on Confl. of Laws, 526, 527.
^ The rules of the several states in re-
gard to the admission of this evidence are
not perfectly uniform ; but in what is
about to be stated, it is believed that they
concur. Before the books of the party
can be admitted in evidence, they are to
be submitted to the inspection of the
court, and if they do not appear to be a
register of the daily business of the party,
and to have been honestly and fairly kept,
they are excluded. If they appear mani-
festly erased and altered, in a material
part, they will not be admitted until the
alteration is explained. Churchman v.
Smith, 6 Whart. 106. The form of keep-
ing them, whether it be that of ^ journal
or ledger, does not affect their admissibil-
ity, however it may go to their credit to
the jury. Coggswell w. Dolliver, 2 Mass.
217; Pnnce v. Smith, 4 Mass. 455, 457;
Faxon v. Hollis, 13 Mass. 427 ; Rodman
V. Hoops, 1 Dall. 85 ; Lynch v. McHugo,
1 Bay, 33; Foster v. Sinkler, Id. 40;
Slade V. Teasdale, 2 Bay, 173 ; Thomas v.
Dyott, 1 Nott & McC. 186; Wilson v.
Wilson, 1 Halst. 95 ; Swing v. Sparks, 2
Halst. 59 ; Jones v. DeKay, Pennington,
R. 695 ; Cole v. Anderson, 3 Halst. 68 ;
Mathes o. Robinson, 8 Met. 269. [Nor
■can tlie entries be invalidated by proof
that se veral years previous to the date of
the entries the parly making the entries
had kept two books of original entries, in
wliich he charged the same articles at dif-
ferent prices. Gardner v. Way, 8 Gray,
189.] If the books appear free from
fraudulent practices, and proper to be laid
before the jury, the party himself is then
required to make oath, in open court,
that they are the books in which the
accounts of his ordinary business transac-
tions are usually kept ; Frye v. Barker, 2
Pick. 65 ; Taylor v. Tucker, 1 Kelly, R.
233 ; and that the goods therein charged
were actually sold and delivered to, and
the services actually performed for the
defendant. Dwinel v. Pottle, 1 Eedingt.
167. [And where goods are delivered by
one partner and the entries are made by
another, each partner may testify to his
part of the transaction, and the entries
may then be admitted. Harwood v
Mulry, 8 Gray, 250.] An af&davit to an
account, or bill of particulars, is not ad-
missible. Wagoner v. Richmond, Wright,
R. 173 ; unless made so by statute.
Whether, if the party is abroad, or is un-
able to attend, the court will take his oath
under a commission, is not perfectly clear.
The opinion of Parker, C. J., in 2 Pick.
67, was against it ; and so is Nicholson u.
Withers, 2 McCord, 428 ; but in Spence v.
Saunders, 1 Bay, 119, even his affidavit
was deemed sufficient, upon a writ of in-
quiry, the defendant having suffered judg-
ment by default. See also Douglas v.
Hart, 4 McCord, 257 ; Furman v. Peay, 2
Bail. 394. He must also swear that the
articles therein charged were actually de-
livered, and the labor and services actually
performed; that the entries were made at
or about the time of the transactions, and
are the original entries thereof; and that
the sums charged and claimed have not
been paid. 3 Dane's Abr. ch. 81, art. 4,
§§ 1, 2; Coggswell v. Dolliver, 2 Mass.
217 ; Ives v. Niles, 5 Watts, 324. If the
party is dead, his books, though rendered
of much less weight as evidence, may still
be offered by the executor or administrar
142
LAW OF EVIDENCE.
[part II.
§ 119. But, if the American rule of admitting the party's own
entries in evidence for him, under the Umitations mentioned be-
tor, he making oath that they came to his
hands as the genuine and only books of
account of the deceased ; that, to the best
of his knowledge and belief, the entries
are original and contemporaneous with
the fact, and the debt unpaid ; with proof
of the party's handwriting. Bentley v.
HoUenback, Wright, R. 169,- MoLellan
K. Crofton, 6 Greenl. 307 ; Prince v. Smith,
4 Mass. 455 ; Odell v. Culbert, 9 W. & S.
66. If .the party has since become in-
sane, the book may still be admitted in
evidence, on proof of the fact, and that
the entries are in his handwriting, with the
suppletory oath of his guardian. And
whether the degree of insanity, in the
particular case, is such as to justify the
admission of the book, is to be determined
by the judge, in his discretion. Holbrook
V. Gay, 6 Gush. 215. The book itself
must be tlie registry of business actually
done, and not of orders, executory con-
tracts, and tilings to be done subsequent
to the entry. Fairchild v. Dennison, 4
Watts, 258 ; Wilson v. Wilson, 1 Halst.
96; Bradley o. Goodyear, 1 Day, 104,
106 ; Terrill v. Beecher, 9 Conn. 344, 348,
349 ; and the entry must have been made
for the purpose of charging the debtor
with the debt ; a mere memorandum, for
any other purpose not being sufilcient.
Thus, an invoice-book, and the memoran-
dums in the margin of a blank check-book,
showing the date and tenor of the checks
drawn and cut from the book, have been
rejected. Cooper v. Morrell, 4 Yates,
341 ; Wilson v. Goodin, Wright, Rep. 219.
But the time-book of a day-laborer, though
kept in a tabular form, is admissible ; the
entries being made for the apparent pur-
pose of charging the person for whom the
work was done. Mathes v. Robinson, 8
Met. 269. [In an action by a laborer
against his employer, the time-book of the
employer, kept in a tabular form, in which
the days the plaintiff worked are set
down, is not admissible in evidence witli
the defendant's suppletory oath, to show
that the plaintiif did not work on certain
days ; it being a book of credits and not
of charges, and it not being competent to
show that the plaintiff did not work on
certain days by the defendant's omission
to give credit for work on those days.
Morse v. Potter, 4 Gray, 292.] If the
book contains marks, or there be other
evidence showing that the items have
been transferred to a journal or ledger,
these books also must be produced. Prince
n Swett, 2 Mass. 569. The entries, also,
must be made contemporaneously with
the fact entered, as has been already
stated in regard to entries made by a
clerk. Supra, § 117, and note (1). En-
tries thus made are not however received
in all cases as satisfactory proof, of the
charges ; but only as proof of things,
which, from their nature, are not gener-
ally susceptible of better evidence. Watts
V. Howard, 7 Met. 478. They are satis-
factory proof of goods sold and delivered
from a shop, and of labor and services
personally performed. Case v. Potter, 8
Johns, 211 ; Vosburg v. Thayer, 12 Johns.
261 ; Wilmer v. Israel, 1 Browne, 257 ;
Ducoign c;. Schreppel, 1 Yates, 347;
Spence v. Saunders, 1 Bay, 119; Chari-
ton V. Lawry, Martin, N. Car. Rep. 26;
MitcheU v. Clark, Id. 25; Easby v. Aiken,
Cooke, R. "388 ; and, in some states, of
small sums of money. Coggswell v. Dol-
liver, 2 Mass. 217 ; Prince v. Smith, 4
Mass. 455 ; 3 Dane's Abr. eh. 81, art. 4,
§§ 1, 2 ; Craven «. Shaird, 2 Halst. 345.
[Meals furnished to an employer and his
servants, from day to day, are a proper
subject of book-cliarge. Tremain v. Ed-
wards, 7 Cush. 414.] The amount, in
Massachusetts and Maine, is restricted to
forty shillings. Dunn v.' Whitney, 1
Eairf. 9; Burns v. Fay, 14 Pick. 8;
Union Bank v. Knapp, 3 Pick. 109. [Nor
is the rule changed because an auditor, at
the hearing before him, examined the
book as a voucher for a greater sum.
Turner v. Twing, 9 Cush. 512.] While
in North Carolina it is extended to any
article or articles, the amount whereof
shall not exceed the sum of sixty dollars.
Stat. 1837, chap. 15, §§ 1, 5. [In New
Jersiy they are inadmissible to prove
money paid or money lent. Inslee v.
Prall, 3 Zabr. 457.] But they have been
refused admission to prove the fact of ad-
vertising in a newspaper ; Richards v.
Howard, 2 Nott & McC. 474 ; Thomas v.
Dyott, 1 Nott & McC. 186 : of a charge of
dockage of a vessel ; Wilmer v. Israel, 1
Browne, 257 : commissions on the sale of
a vessel> Winsor v. Dillovvay, 4 Met. 221 •
[an item in an account " seven gold
watches, |308;" Bustin v. Rogers, 11
Cush. 346 : to whom credit was criginally
given, delivery being admitted ; Keith v.
Kibbe, 10 Cush. 36 : the consideration of
a promissory note ; Rindge v. Breck, 10
Cush. 43 ; see also Earle v. Sawyer, 6
Cush. 142 ; three months' service in one
item; Henshaw v. Davis, 5' Cush. 146;
money lost by an agent's negligence ;
CHAP, v.]
HEARSAY.
143
low, were not in accordance with tlie principles of the common
law, yet it is in conformity witli those of other systems of jurispru-
dence. In the administration of the Eoman law, the production
of a merchant's or tradesman's book of accoimts, regularly and
fairly kept in the usual manner, has been deemed presumptive evi-
dence (semiplena probatio'^') of the iustice of his "'claim: and, in
Chase v. Spepcer, 1 Williams, 412 : arti-
cles temporarily borrowed ; Scott v. Brig-
liam, lb. 561 : building a fence ; Towle v.
Blake, 37 Maine, 208 : any matter col-
lateral to the issue of debt and credit
between the parties ; Batchelder v. San-
born, 2 Foster, 325 :] labor of servants ;
Wright !'. Sharp, 1 Browne, 344 : goods
delivered to a third person ; Kerr v. Love,
1 Wash. 172; Tenbrook v. Johnson, Coxe,
288 ; Townley v. Woolley, Id. 377 :
[Webster v. Clark, 10 Foster, 245 :] or to
the party, if under a previous contract for
their delivery at different periods ; Loner-
gan I). Whitehead, 10 Watts, 249 : general
damages, or value ; Swing v. Sparks, 2
Halst. 59; Terrill v. Beecher, 9 Conn.
348, 349 ; settlement of accounts ; Prest v.
Mercereau, 4 Halst. 268 : money paid and
not applied to the purpose directed ;
Bradley ;;. Goodyear, 1 Day, 104 : a spe-
cial agreement.; Pritchard v. McOwen, 1
Nott & McC. 131, note ; Dunn v. Whit-
ney, 1 Fairf. 9 ; Green v. Pratt, 11 Conn.
205 : or a deUvery of goods under such
agreement ; Nickle v. Baldwin, 4 Watts
& Serg. 290 : an article omitted by mis-
take in a prior settlement ; Punderson v.
Shaw, Kirby, 150 : the use and occupation
of real estate, and the like ; Beach v.
Mills, 5 Conn. 493. See also Newton v.
Higgins, 2 Verm. 366 ; Dunn v. Wiiitney,
1 Fairf. 9. But after the order to deliver
goods to a third person is proved by com-
petent evidence aliunde, the delivery itself
may be proved by the books and supple-
tory oath of the plaintiff, in any case
where such delivery to the defendant in
person might be so proved. Mitchell v.
Belknap, 10 Shepl. 475. The charges,
moreover, must be specific and particular ;
a general charge for professional services,
or tor work and labor by a mechanic,
without any specification but that of time,
cannot be stipported by this kind of evi-
dence. Lynch v. Petrie, 1 Nott & McC.
130 ; Hughes v. Hampton, 2 Const. Rep.
476. And regularly the prices ought to
be specified ; in which case the entry is
prima facib evidence of the value. Haga-
man v. Ca»d, ,1 South. 870; Ducoign v.
Schreppel, 1 Yeates, 337. But whatever
he the nature of the subject, the transac-
tion, to be susceptible of this kind of
proof, must have been directly between
the original debtor and the creditor ; the
book not being admissible to estaklisli a
collateral fact. Mifflin v. Bingham, 1
Dall. 276, per McKean, C. J. ; Kerr o.
Love, 1 Wash. 172; Deas v. Darby, 1
Nott & McC. 436; Poulteney v. Ross, 1
Dall. 238. Though books, such as have
been described, are admitted to be given
in evidence, with the suppletory oath of
the party, yet his testimony is still to be
weighed by the jury, like that of any
other witness in the cause, and his reputa-
tion for truth is equally open to be ques-
tioned. Kitchen v. Tyson, 2 Murph. 314 ;
Elder v. Warfleld, 7 Har. & Johns. 391.
In some states, the books thus admitted
are only those of shopkeepers, mechanics,
and tradesmen ; those of other persons,
■such as planters, scriveners, schoolmasters,
&c., being rejected. Geter v. Martin, 2
Bay, 173 ; Pelzer v. Cranston, 2 McC.
328; Boyd v. Ladson, 4 McC. 76. The
subject of the admission of tlie party's own
entries, with his suppletory oath, in the
several American states, is very elabor-
ately and fully treated in Mr. Wallace's
note to the American edition of Smith's
Leading Cases, vol. 1, p. 142. [Where a
party's books are admitted, their credit
cannot he impeached by proof of the bad
moral character of the party. Tomlinson
V. Borst, 30 Barb. 42.] [ * It seems to be
settled that if the party rely upon the
credits in his adversary's book, he must
take such admission in connection with
counter debits. Biglow v. Sanders, 22
Barb. N. Y. 147. But according to the
EngUsh practice he is not precluded from
introducing evidence to impeach the
items upon the debtor side of the account,
while he claims the benefit of those upon
the credit side. Rose v. Savory, 2 Bing.
N. c. 145. See also Moorehouse v. New-
ton, 3 De G. ^ Sm. 307.]
1 This degree of proof is thus defined
by Mascardus : " Non est ignorandum,
probationem semiplenam earn esse, pei
quam rei gestse^rfes aliqua fit judici ; non
tamen tanta ut jure debeat in pronuncian
da sententia earn sequi." ^e Prob. vol. 1
Qusest. 11, n. 1, 4
144 LAW OP EVIDENCE. [PABT II.
such cases, the suppletory oath of the party (^juramentwm sv/ppler
tivum) was admitted to make up the plena prdbatio necessary to a
decree in his favor .^ By the law of France, too, the books of mer
chants and tradesmen, regularly kept and written from day to day,
without any blank, when the tradesman has the reputation of
probity, constitute a semi-proof, and with his suppletory oath are
received as full proof to establish his demand.^ The same doctrine
is familiar in the law of Scotland, by which the books of merchants
and others, kept with a certain reasonable degree of regularity,
satisfactory to the court, may be received in evidence, the party
being allowed to give his own oath " in supplement " of such imper-
fect proof. It seems, however, that a course of dealing, or other
" pregnant circumstances," must in general be first shown by evi-
dence aliunde, before the proof can be regarded as amountmg to
the degree of semiplena probatio, to be rendered complete by the
oath of the party .^
§ 120. Eeturning now to the admission of entries made by clerks
and third persons, it may be remarked that in most, if not all the
reported cases, the clerk or person who made the entries was dead;
and the entries were received upon proof of his handwriting. But
it is conceived that the fact of his death is not material to the
admissibility of this kind of evidence. There are two classes of
1 " Juramentum(suppletivum)defertur ciorum ordo et usus evertitur. Nequl
ubicunqiie actor habet pro se — aliguas enim omnes prassenti pecunia merces siM
conjecturaa, per quas judex inducatur ad comparant, neque cujusque rei venditioni
suspicionem vel ad opinanduni pro parte testes adliiberi, qui pretia mercium nove-
actoris." Mascardus, De Prob. vol. 3, rint, aut expedit, aut congruum est. No
Concl. 1230, n. 17. Tlie civilians, how- iniquum videbitur illud statutum, quo do-
ever tliey may differ as to tlie degree of mesticis talibus instruraentis additur fides,
credit to be given to boolcs of account, modo aliquibus adminiculis juventur."
concur in opinion that tliey are entitled to See also Hertius, He Collisione Leguni,
consideration at the discretion of tlie § 4, n, 68 ; Strykius, torn. 7, I)e Semi-
judge. They furnish, at least, the coTy'ec- plena Probat. ])isp. 1, cap. 4, § 5 ; Meno-
turce mentioned by Mascardus ; and their chius, De Presump. lib. '2, Presump. 57, n.
admission in evidence, -vvitli the supple- 20, and lib. 3, Presump. 63, n. 12.
toryoath of the party, is thus defended by ^ \ Pothier on Obi., Part iv. ch. 1, art.
Paul Voet, De Statutis, § 6, cap. 2, n. 9. 2, § 4. By the Code Napoleon, merchant's
" An ut credatur libris rationem, seu reg- books are required to be kept in a particu-
istris uti loquuntur, mercatorum et artifi- lar manner therein prescribed, and none
cum, licet probationibus testium non ju- others are admitted in evidence. Code de
ventur ? Respondeo, quamvis exemplo Commerce, Liv. 1, tit. 2. art. 8-12.
pernitiosum esse videatur, .quemque sibi ^ Tait on Evidence, p. 27,3-277. This
privata testatione, sive adnotatione fa- degree of proof is tliere defined as " not
cere debitorem. Quia tamen hsec est mer- merely a suspicion, — but such •; .'idence
catorum cura et opera, ut debiti et credlti as produces a reasonable belief, though not
rationes diligenter confidant. Etiam in complete evidence." See also Glassford
eorum foro et causis, ex aequo et bono est on Evid. p. 550 ; Bell's Digest of Laws of
judicandum. Insuper non admisso aliquo Scotland, pp. 378, 898. ^
Utium accelerandarum remedio, commer-
CHAP, v.] HEARSAr. 145
admissible entries, between -whicli there is a clear distinction, in
regard to the principle on which they are received in evidence.
The one class consists of entries made against the interest of the
party making theA ; and these derive their admissibility from tliis
circumstance alone. It is, therefore, not material when they were
made. The testimony of the party who made them. would be the
best evidence of the fact ; but, if he is dead, the entry of the fact
made by him in the ordinary course of his business, and against
his interest, is received as secondary evidence in a controversy
between third persons.^ The other class of entries consists of
those which constitute parts of a chain or combination of transac-
tions between the parties, the proof of one raising a presumption
that another has taken place. Here, the value of the entry, as
evidence, lies in this, that it was contemporaneous with the principal
fact done, forming a link in the chain of events, and being part of
the res gestce. It is not merely the declaration of the party, but it
is a verbal contemporaneous act, belonging, not necessarily, in-
deed, but ordinarily and naturally to the principal thing. It is on
this ground, that this latter class of entries is admitted ; and
therefore it can make no difference, as to their admissibility,
whether the party who made them be living or dead, nor whether
he was, or was not, interested in making them ; his interest going
only to affect the credibility or weight of the evidence when
received.^
§ 121. The evidence of indebtment, afforded by the indorsement
of the payment of .interest, or a partial payment of the principal,
on the back of a bond or other security, seems to fall within the
principle we are now considering, more naturally than any other ;
though it is generally classed with entries made against the
interest of the party. The main fact to be proved in the cases,
where this evidence has been admitted, was the continued exia-
1 Warren v. Greenyille, 2 Str. 1129 ; Binn. 154 ; Sherman v. Crosby, 11 Johns.
JCdaieton v. Melton, 10 B. & C. 317 ; 70 ; HoUaday v. Littlepage, 2 Munf. 316 ;
Thompson v. Stevens, 2 Nott & McC. Prather v. Johnson, 3 H. & J. 487 ; Sher-
493 ; Chase v. Smith, 8 Verm. 556 ; Spi- man v. Akins, 4 Pick. 283 ; Carroll v. Ty-
era i'. Morris, 9 Bing. 687 ; Alston v. Tay- ler, 2 H. & G. 54 ; James o. Wharton, 3
lor, 1 Hay w. 381, 395. McLean, 492. In several cases, however,
^ This distinction was taken and clear- letters and receipts of third persons living,
ly expounded by Mr. Justice Parke in and within the reach of process, have
Doe d; PatteshaiU v. Turford, 3 B. & Ad. been rejected. Longenecker v. Hyde, 6
890 ; cited and approved in Poole v. Dicas, Binn. 1 ; Spargo v. BroWn, 9 B. & C. 935 ;
1 Bing. N. 0. 654; [Stapylton w. Clough, Warner i;. Price, 3 Wend. 397; Cutbush
22 Eng. Law & Eq. K. 275.] See also su- v. Gilbert, 4 S. & E. 551 ; [Eeynolds »,
pra,M 115, 116; Cluggage u. Swan, 4 Manning, 15 Met. 510.]
VOL. I. 13
146 LAW OP EVIDENCE. [PABT H.
tence of the debt, notwithstanding the lapse of time since its
creation was sucli as either to raise the presumption of payment,
or to bring the case within the operation of the statute of limita-
tions. This fact was sought to be proved by the acknowledgment
of the debt by the debtor himself ; and this acknowledgment was
proved, by his having actually paid part of the ' money due. It is
the usual, ordinary, and well-known course of business, that par-
tial payments are forthwitli indorsed on the back of the security,
the indorsement thus becoming part of the res gestce. Wherever,
therefore, an indorsement is shown to have been made at the time
it bears date (which will be inferred from its face, in the absence
of opposing circumstances),^ the presumption naturally arising is,
that the money mentioned in it was paid at that time. If the
date is at a period after the demand became stale, or affected by
the statute of limitations, the interest of tlae creditor to fabricate
it would be so strong, as to countervail the presumption of pay-
ment, and require the aid of some other proof; and the case
would be the same, if the indorsement bore a date within that
period, the instrument itself being otherwise subject to the bar
arising from lapse of time.^ Hence the inquiry, which is usually
made in such cases, namely, whether the indorsement, when
made, was against the interest of the party making it, that is, of
^the creditor ; which, in other language, is only inquiring whether
at was made while his remedy was not yet impaired by lapse of
•time. The time when the indorsement was made is a fact to be
settled by the jury ; and to this end the writing must be laid
before them. If there is no evidence to the contrary, the
presumption is, that the indorsement was made at the time it
purports to bear date ; and the burden of proving the date to be
false lies on the other party .^ If the indorsement does not pur-
port to be made contemporaneously with the receipt of the money,
it is inadmissible, as part of the res gestce.
§ 122. This doctrine has been very much considered in the
•discussions which have repeatedly been had upon the case of
1 Smith V. Battens, 1 M. & Rob. 341. boom v. Billington, 17 Johns. 182 ; Gibson
See also Nichols v. Webb, 8 Wheat. 326 ; v. Peebles, 2 McCord, 418.
12 S. & R. 49, 87; 16 S. & R. 89, 91. s Per Taunton, J., in Smith v. Battens,
2 Turner v. Crisp, 2 Stra. 827 ; Rose v. 1 M. & Rob. 343. See also Hunt v. Mas-
Bryant, 2 Campb. 321 ; Glynn v. The sey, 5 B. & Adolph. 902 ; Baker v. Mil-
Bank of England, 2 Ves. 38, 43. See al- burn, 2 Mces. & W. 853 ; Suiclair v. Bag-
so Whitney ». Bigelow, 4 Pick. 110; Rose- galey, 4 Mees. & W. 312 ; Anderson ■;
Weston, 6 Bing. n. c. 296. ^
OH At. v.] HEARSAY. 147
fSearle v. Barrington?- In that case, the bond was given in 1697,
and was not sued until after tlie deatli of the obligee, upon whose
estate administration was granted in 1723. The obligor died in
1710 ; the obligee probably survived him, but it did not appear
how long. To repel the presumption of payinent, arising from
lapse of time, the plaintiff offered in evidence two indorsements,
made upon the bond by the obligee himself, bearing date in 1699,
and in 1707, and purporting that the interest due at tliose re-
spective dates had been then paid by the obligor. And it appears
that other evidence was also offered, showing the time when the
indorsements were actually made.^ The indorsements, thus proved
to have been made at the times when they purported to have bee,
made, were, upon solemn argument, held admissible evidence, botli
by the judges in the Exchequer Chamber and by the House of
Lords. The grounds of these decisions are not stated in any of
the reports ; but it may be presumed that the reasoning on the
side of the prevailing party was approved, namely, that the in-
dorsement being made at the time it purported to bear date, and
being according to the usual and ordinary course of business in
such cases, and which it was not for the interest of the obligee at
that time to maUe, was entitled to be considered by the jury ; and
that from it, in the absence of opposing proof, the fact of actual
payment of the interest might be inferred. This doctrine has
been recognized and confirmed by subsequent decisions.^
1. There were two successive actions as the result of his own research. See 1
on the same bond between these parties. Cronip. & Mees. 421. So it was under-
The first is reported in 2 Stra. 826, 8 Mod. stood to be, and so stated, by Lord Hard-
278, .and 2 Ld. Raym. 1370; and was wicke, in 2 Ves. 43. It may have consti-
tried before Pratt, C. J., who refused to tuted the " other circumstantial evidence,"
admit the indorsement, and nonsuited the mentioned in Mr. Brown's report, 3 Bro.
plaintiff; but on a motion to set the non- P. C. 594 ; which he literally transcribed
suit aside, the three other judges were of from the case, as drawn up by Messrs.
opinion, that the evidence ought to have Lutwyche and Fazakerley, of counsel for
been left to the jury, the indorsement in the original plaintiff, for argument in the
such cases being according to the usuiil House of Lords. See a folio volume of
course of business, and perhaps in this original printed briefs, marked " Cases in
case made with the privity of the obligor; Parliament, 1728 to 1781," p. 529, in the
but on another ground the motion was de- Law Library of Harvard University, in
nied. Afterwards another action was which this case is stated more at large
brought, wliicli was tried before Lord than in any book of Reports. By Stat. 9
Raymond, C. J., who admitted the evi- Geo. IV. c. 14, it is enacted, that no in-
dence of the indorsement ; but to which dorsement of partial payment, made Cy or
the dctendant filed a bill of exceptions, on behalf of tlie creditor, shall be deemed
This judgment was atfirmed on error in sufficient proof to take the case out of the
the Exchequer Chamber, and again in the statute of limitations. The same enact-
House of Lords. See 2 Stra. 827 ; 3 Bro. ment is found in the laws of some of the
P. C. 593. The first case is most fully re- United States,
ported in 8 Mod. 278. » Bosworth w. Cotehett, Dom. Proc.
2 Tliis fact was stated by Bayley, B., May 6, 1824; Phil. & Am. on Evid. 348;
148 LAW OF EVIDENCE. [PABT H.
§ 123. Thus, we have seen that there asefour classes of declaro/-
tions, which, though usually treated under the head of hearsay,
are in truth original evidence ; the first class consisting of cases
where the fact, that the declaration was made, and not its truth
or falsity, is the point in question ; the second, including expressions
of bodily or mental feelings, where the existence or nature of such
feelings is the subject of inquiry ; the third, consisting of cases of
pedigree, and including the declarations of those nearly related to,
the party whose pedigree is in question ; and ^q fourth, embracing
all other cases where the declaration offered in evidence may be
regarded as part of the res gestoe. All these classes are involved
in the principle of the last; and have been separately treated,
merely for the sake of greater distinctness.
§ 124. Subject to these qualifications and seeming exceptions,
the general rule of law rejects all hearsay reports of transactions,
whether verbal or written, given by persons not produced as wit-
nesses.i The principle of this rule is, that such evidence requires
credit to be given to a statement, made by a person who is not
subjected to the ordinary tests, enjoined by the law, for ascertain-
ing the correctness and completeness of his testimony; namely,
that oral testimony should be delivered in the presence of the
court or a magistrate, under the moral and legal sanctions of an
oath, and where the moral and intellectual character, the motives
and deportment of the witness can be examined, and his capacity
and opportunities for observation, and his memory, can be tested
by a cross-examination. Such evidence, moreover, as to oral dec-
larations, is very liable to be fallacious, and its value is, therefore,
greatly lessened by the probability that the declaration was imper-
fectly heard, or was misunderstood, or is not accurately remem-
bered, or has been perverted. It is also to be observed, that the
persons communicating such evidence are not exposed to the
danger of a prosecution for perjury, in which something more
than the testimony of one witness is necessary, in order to a con-
Gleadow v. Atkin, 1 Cromp. & Mees. at the time the admitted payment was
410 ; Anderson v. Weston, 6 Bing. n. c. made. Hayes v. Morse, 8 Verm. R. 316.]
296 ; 2 Smith's Leading Cases, 197 ; Ad- i " If," says Mr. Justice Buller, " the
dams V. Seitzinger, 1 Watts & Serg. 243. first speech were without oath, anotlier
[ * But the admission of a payment at the oath, tliat there was sucli speech, malces it
time a note fell due, although signed by no more than a bare spealdng, and so of
both parties and indorsed upon tlie note at no value in a court of justice." Bull. N
a period within the statute of Umitations P. 294 ; [Lund v. Tyngsborough, 9 Gush
will not have the effect to remove the bar, 86, 40 ]
the effect being the same only as if made
CHAP, v.] HEARSAY. 149
viction ; for where the declaration or statement is sworn to have
been made when no third person was present, or by a person who
is since dead, it is hardly possible to punish the witness, even if
his testimony is an entire fabrication.^ To these reasons may be
added considerations of public interest^and convenience for reject-
ing hearsay evidence. The greatly increased expen^c, and the
vexation which the adverse party must incur, in order to rebut or
explain it, the vast consumption of public time thereby occasioned,
the multiplication of collateral issiies, for decision by the jury,
a,nd the danger of losing sight of the main question, and of the
justice of the. case, if this sort of proof were admitted, are consid-
erations of too grave a character to be overlooked by the court or
the legislature, in determining the question of changing the rule.^
§ 125. The rule applies, though the declaration offered in evi-
dence was made upon oath, and in the course of a judicial proceed-
ing, if the litigating parties are not the same. Thus, the deposition
of a pauper, as to the place of his settlement, taken ex parte before
a magistrate, was rejected, though the pauper himself had since
absconded, and was not to be found.^ The rule also applies, not-
withstanding no better evidence is to be found, and though it is
certain that, if the declaration offered is rejected, no other evi-
dence can possibly be obtained ; as, for example, if it purports to
be the declaration of the only eye-witness of the transaction, and
he is since dead.*
§ 126. An exception to this rule has been contended for in the
admission of the declarations of a deceased attesting witness to a
deed or will, in disparagement of the evidence afforded by his
1 Phil.&Am.oii]5vicI.217; IPhil.Evid. is otherwise ; evidence on the relation of
205, 20G. See, as to the liability of words others being admitted, where the relator
to misconstruction, the remarks of Mr. is since dead, and would, if living, have
Justice Foster, in his Discourse on High been a competent witness. And if the re-
Treason, eh. 1, § 7. The rule excluding lation has been handed down to the wit-
hears.ay is not of great antiquity. One of ness at second-hand, and through several
the earliest cases in whicli it was adminis- successive relators, each only slating what
tered, was that of Sampson v. Yardley he received from an intermediate i clator, it
and Tothill, 2 Keb, 223, pi. 74, 19 Car. 2. is still admissible, if the original and in-
^ Mima Queen v. Hepburn, 7 Cranch, termediate relators are all dead, and would
290, 296, per Marshall, C. J. have been competent witnesses if living.
^ Eex V. Nuneham Courtney, 1 East, Tait on Evid. pp. 480, 431. But the rea-
373 ; Eex v. Eerry Frystone, 2 East, 54 ; son for receiving hearsay evidence, in
Rex V. Eriswell, 3 T. It. 707-725, per cases where, as is generally the case in
Lord Kenyon, C. J., and Grose, J., whose Scotland, the judges determine upon the
opinions are ai.^jroved and adopted in Mima facts in dispute, as well as upon tlie law,
Queen v. Hepburn, 7 Cranch, 296. is stated and vindicated by Sir James
* Phil. & Am. on Evid. 220, 221 ; 1 Phil. Mansfield, in the Berkley Peerage case, 4
E/id. 209, 210. In Scotland the rule Campb. 415,
13*
150 LAW OP ETIDENCE. [PART II.
signature. This exception has been asserted, on two grounds;
first, that as the party, oifering the deed, used the declaration of
the witness, evidenced by liis signature, to prove tlie execution,
the other party might well be permitted to use any other declara-
tion of the same witness, to disprove it ; — and secondly, that such
declaration was in the nature of a substitute for the loss of the
benefit of a cross-examination of the attesting witness ; by which,
cither the fact confessed would have been proved, or the witness
might have been contradicted, and his credit impeached. Both
these grounds were fully considered in a case in the exchequer,
and were overruled by the court ; the firstj because the evidence
of the handwriting, in the attestation, is not used as a declaration
by the witness, but is offered merely to show the fact that he put
his name there, in the manner in which attestations are usually
placed to genuine signatures ; and the second, chiefly because of
the mischiefs which would ensue, if the general rule excluding
hearsay were thus broken in upon. For the security of solemn
instruments would thereby become much impaired, and the rights
of parties under them would be liable to be affected at remote
periods, by loose declarations of the attesting witnesses, wliich
could neither be explained nor contradicted by the testimony of
the witnesses themselves. In admitting such declarations, too,
there would be no reciprocity ; for though the party impeaching
the instrument would thereby have an equivalent for the loss of
his power of cross-examination of the living witness, the other
party would have none for the loss of his power of re-examina-
tion.^
1 Stobart v. Dryden, 1 Mees. & W. 615.
CHAP. 71.] MATTERS OP GBNBBAL INTEREST. 151
CHAPTEE VI.
OP MATTERS OP PUBLIC AND GENERAL INTEREST.
[ * § 127. Classification of the exceptional cases.
128. Distinction between public and general interest.
129. Competent knowledge seems indispensable in witness.
130. Reputation restricted to ancient matters, and as to persons deceased.
131. Not admitted after controversy arises. Lis mota defined.
132. The controversy must be upon the same point.
133. It will make no difference that the controversy is unknown.
134. Tills will not exclude solemn acts declaring legitimacy.
135. Witness need not state author. Declarations receivable, if person not then
Interested.
136. His being in similar relation no objection.
137. The rule does not extend to any but public interests.
138. Subject further illustrated.
139. Documentary evidence inter alios is also admissible under the limitationi
already stated.
140. Keputation is also admitted against claim of public right.]
§ 12T. Having thus illustrated the nature of hearsay evidence,
and shown the reasons on which it is generally excluded, we are
now to consider the cases in which this rule has been relaxed, and
hearsay admitted. The exceptioug, thus allowed, will be found
to embrace most of the points of ' inconvenience, resulting from
a stern and universal application of the rule, and to remove the
principal objections which have been urged against it. These
exceptions may be conveniently divided into four classes : —
first, those relating to matters of public and general interest ; —
secondly, those relating to ancient possessions ; — thirdly, declarar
tions against interest; — fourthly, dijm.g declarations, and some
others of a miscellaneous nature ; and in this order it is proposed
to consider them. It is, however, to be observed, that these
exceptions are allowed only on the ground of the absence of better
evidence, and from the nature and necessity of the case.
§ 128. And first, as to matters of public and general interest.
The terms, public and general, are sometimes used as synony
mous, meaning merely that which concerns a multitude of per
l.'J2 LAW OF EVIDENCE. [PAET H.
sons.^ But in regard to the admissibility of hearsay testimony,
a distinction has been taken between them; the term, public,
being strictly applied to that which concerns all the citizens, and
every member of the State ; and the term, general, being referred
to a lesser, though still a large portion of the community. In
matters of public interest, all persons must be presumed con-
versant, on the principle, that individuals are presumed to be
conversant in their own affairs ; and, as common rights are
naturally talked of in the community, what is thus dropped in
conversation may be presumed to be true.^ It is the prevailing
current of assertion that is resorted to as evidence, for it is to
this that every member of the community is supposed to be privy,
and to contribute his share. Evidence of common reputation is,
therefore, received in regard to public facts (a claim of highway,
or a right of ferry, for example) , on ground somewhat similar to
that on which public documents, not judicial, .are admitted,
namely, the interest which all have in their truth, and the con-
sequent probability that they are true.^ In these matters, in
which all are concerned, reputation from any one appears to be
receivable ; but of course it is almost worthless, unless it comes
from persons who are shown to have some means of knowledge,
such as, in the case of a highway, by living in the neighborhood ;
but the want of such proof of their connection with the subject
in question affects the value only, and not the admissibility of the
evidence. On the contrary, where the fact in controversy is one
in which all the members of the community have not an interest,
but those only who live in a particular district, or adventure in
a particular enterprise, or the like, hearsay from persons wholly
unconnected with the place or business would not only be of no
value, but altogether inadmissible.* ^
1 Weeks v. Sparke, 1 M. & S. 690, per Eosc. 929, per Parke, B. By the Roman
Bayley, J. Law, reputation or common~fame seems
" Morewood v. Wood, 14 East, 329, n,, to have been admissible in evidence, in all
per Ld. Kenyon ; Weeks v. Sparke, 1 M. cases ; but it was not generally deemed
& S. 686, per Ld. Ellenborough ; The sufficient proof, and, in some cases, not
Berkley Peerage case, 4 Campb. 416, per even semiplena probaiio, unless corrobo-
Mansfield, C. J. rated ; nisi aliis adminiculis adjuvetur.
8 1 Stark. Evid. 195 ; Price v. Currell, 6 Mascardus, De Prob. vol. 1, Concl. 171, n.
M. & W. 234. And see Noyes v. White, 1 ; Concl. 183, n. 2 ; Concl. 547, n. 149.
19 Conn. 250. ' It was held sufficient plena probaiio, wher-
* Crease v. Barrett, 1 Cromp. Mees. & ever, from the nature of the case, better
^ [Persons living out of such district are not therefore be affected by proof of it
not presumed to know such fact, and can- Dunbar v. Mulry, 8 Gray, 163.]
CHAP. VI.] MATTERS OP GENERAL INTEREST. 153
§ 129. Thus,^ in an action of trespass quare clausum fregit,
where the defendant pleaded in bar a prescriptive right of common
in tire locus in quo, and the plaintiff replied, prescribing the right
of his messuage to use the same ground for tillage with corn,
until the harvest was ended, traversing the defendant's prescrip-
tion; it appearing that many persons beside the defendant had
a right of common there, evidence of repiitation, as to the plain-
tiff's right, was held admissible, provided it were derived from
persons conversant with the neighborhood.^ But where the ques-
tion was, whether the city of Chester anciently formed part of
the county Palatine, an ancient document, purporting to be a
decree of certain law officers and dignitaries of the crown, not
having authority as a court, was held inadmissible evidence on
the ground of reputation, they having, from their situations, no
peculiar knowledge of the fact.^ And, on the other hand, where
the question was, whether Nottingham Castle was within the
hundred of Broxtowe, certain ancient orders, made by the justices
at the quarter sessions for the county, in which the castle was
described as being within that hundred, were held admissible
evidence of reputation ; the justices, though not proved to be
residents within the county or hundred, lieing presumed, from
the nature and character of their offices alone, to have sufficient
acquaintance with the subject to which their declarations related.^
Thus it appears that competent knowledge in the declarant is,
in all cases, an essential prerequisite to the admission of his
testimony ; and that though all the citizens are presumed to have
that knowledge, in some degree, where the matter is of public
concernment, yet, in other matters, of interest to many persons,
some particular evidence of sucli knowledge is required.
§ 130. It is to be observed, that the exception we are now con-
eyidence was not attainable ; ithi a commu- of the subject in the neighborhood was a
niter accidentilms, probatio difficilis est, fuma fact also relied on in tlie Komau law, in
phnaw. solet prohationem facei'e ; ui in proba- cases of proof by common fame. * Qiian-
tio)ie Jxliutioius. But Mascardus deems it do testis vult probare aliqucm sci\isse,
not sufficient, in eases of pedigree within non videtur suflScere, quod dicat lilc scivit
the memory of man, which he limits to quia erat vicinus ; sed debet addere, m
fifty-six years, unless aided by other evi- vicinia hoc erat cognitum jier famam, vel
dencc, — tunc nempe von snfficei'el jntbllca vox alio modo ; et ideo iste, qui erat vicinus,
et fanui, sed una cum ipsa deberet tradalus et potuit id scire." J. Mcjiochius, l)e I'rae-
nominaiio probari vel alia admivicula urgentia sump. torn. 2, lib. 6, Pra3S. ^4, n. 17, p.
adldbcri. Mascard. De Trob. vol. 1, Concl. 772.
♦11, n. 1, 2, 6, 7. 2 Kogers !-. AYood, 2 Barn. & Ad. 245.
1 Weeks v. Sparke, 1 M. & S. 679, 688, s Duke of Newcastle .■. Bro.xtowe, 4
per Le Blanc, J. The actual discussion Barn. & Ad. 273.
154 LAW OF EVIDENCE. [PABT H.
sidering is admitted only in the case of ancient rights, and in respect
to the declarations of persons supposed to he dead?- It is required
by the nature of the rights in question ; their origin being gen-
erally antecedent to the time of legal memory, and incapable of
direct proof by living witnesses, both from this fact, and also from
the undefined generality of their nature. . It has been held, that
where the nature of the case admits it, a foundation for the recep-
tion of hearsay evidence, in matters of public and general interest,
should first be laid by proving acts of enjoyment within the period
of living memory.^ But this doctrine has since been overruled ;
and it is now held, that such proof is not an essential condition
of the reception of evidence of reputation, but is only material,
as it affects its value when received.^ Where the nature of the
subject does not admit of proof of acts of enjoyment, it is obvious
that proof of reputation alone is sufficient. So, where a right or
custom is established by docjimentary evidence, no proof is neces-
sary of any particular instance of its exercise ; for, if it were
otherwise, and no instance were to happen within the memory of
man, the right or custom would be totally destroyed.* In the
case of a private right, however, where proof of particular instances
of its exercise has first been given, evidence of reputation has
sometimes been admitted in confirmation of the actual enjoyment ;
but it is never allowed against it.^
§ 131. Another important qualification of the exception we have
been considering, by wliich evidence of reputation or common
fame is admitted, is, that the declaration so received must have
1 Moseleyw.DaTiea, 11 Price, 162; Re- ^ White v. Lisle, 4 Mad. E. 214, 225.
gina V. Milton, 1 Car. & Kir. 68 ; Davis v. See Morewood v. Wood, 14 East, 330, n.,
FuUer, 12 Verm. R. 178. per Buller, J. ; Weeks v. Sparke, 1 M. &
2 Per Buller, J., in Morewood v. Wood, S. 690, per Baylly, J. ; Rogers v. Allen, 1
14 East, 330, note ; per Le Blane, J., in Campb. 309 ; Richards v. Bassett, 10 B. &
Weeks v. Sparke, 1 M. & S. 688, 689. C. 662, 663, per Littledale, J. A doctrine
' Crease v. Barrett, 1 Cromp. Mees. & nearly similar is held by the civilians, iE
Rose. 919, 930. See also ace. Curson v. cases of ancient private rights. Thus
Lomax, 5 Esp. 90, per Ld. EUenborough ; Mascardus, aiter stating, upon the author-
Steele v. Prickett, 2 Stark. 463, 466, per ity of many jurists, that Dominium in anti-
Abbott, C. J. ; Ratcliff v. Chapman, 4 guis probari perfamam, traSitum est, — ■ veluti
Leon. 242, as explained by Grose, J., in si fama sit, Iianc domum fuisse Dantis Poetm,
Beebe v. Parker, 5 T. R. 32. vd alterius, qui decessit, jam sunt centum
* Beebe v. Parker, 5 T. R. 26, 32 ; Doe anni, et nemo vidit, qui viderit, quern refert,
V. Sisson, 12 East, 6? ; Steele v. Prickett, S^-c, subsequently qualifies this general
2 Stark. E. 403, 466. A single act, undis- proposition in these words : — Prima limita
turbed, has been held sufficient evidence principakm conclusionem, ut non procedat,
of a custom, the court refusing to set nisi cum fame concuirant alia adminicula,
aside a verdict finding a custom upon saltern prcesentis possessionis, ^c. Mascard.
such evidenc3 alone. Roe v. Jeffery, 2 M. De Prob. vol. 2, Concl. 547, n. 1, 14.
& S. 92; Doe v. Mason, 3 Wils. 63.
CHAP. VI. J MATTERS OF GENERAL INTEREST. 165'
been made lefore any controversy arose, touching the matter to
■which they relate ; or, as it is usually expressed, ante litem motam.
The ground on which such evidence is admitted at all is, that the
declarations " are the natural effusions of a party who must know
the truth, and who speaks upon an occasion when his mind stands
in an even position, without any temptation to exceed or fall
short of the truth." ^ But no man is presumed to be thus indif-
ferent in regard to matters in actual controversy ; for when the
contest has begun, people generally take part on the one side or
the other ; their minds are in a ferment ; and if they are disposed
to speak the truth, facts are seen by them through a false medium.
To avoid, therefore, the mischiefs which would otherwise result,
all ex parte declarations, even though made upon oath, referring
to a date subsequent to the beginning of the controversy, are
rejected.^ This rule of evidence was familiar in the Roman law ;
but the term lis mota was there applied strictly to the commence-
ment of the action, and was not referred to an earlier period of
the controversy.^ But in our law the term lis is talcen in the
classical and larger sense of controversy ; and by lis mota is under-
stood the commencement of the controversy, and not the com-
mencement of the suit.* Tlie commencement of tlie controversy
has been further defined by Mr. Baron Alderson, in a case of pedi-
gree, to be " the arising of that state of facts, on which the claim
is founded, without any thing more." ^ [* And in the late case of
Butler V. Mountgarret^ it was held, that a controversy in a family,
though not at that moment the subject of a suit, constitutes suffi-
ciently a lis mota, to render inadmissible a letter written on that
subject by one member of the family and addressed to another.]
§ 132. The lis mota, in the sense of our law, carries with it the
further idea of a controversy upon the same particular subject in
issue. For, if the matter under discussion at the time of trial
1 Per Ld. Eldon, in Whitelocke v. Juris, Glossatum, torn. 1, col. 553, ad Dig.
Balcer, 13 Ves. ,514 ; Rex v. Cotton, 3 lib. iv. tit. 6, 1. 12. Lis mota censeiur,
Campb. 444, 44B, per Dampier, J. eliamsi solus actor et/a-it. Calv. Lex. Verb.
2 The Berkley Peerage case, 4 Campb. Lis Mota.
401, 40y, 412, 413 ; Monkton v. Tlie At- * Per Mansfield, C. J., in the Berkley
torney-General, 2 Russ. & My. 160, 161 ; Peerage case, 4 Campb. 417 ; Monkton v.
Riclurds v. Bassett, 10 B. & C. 657. _ The Attorney-Genenal, 2 Russ. & My.
* Lis est, ut primiim in jus; vel in judi- 161.
cium ventum est ; antequam in judicium venia- ^ Walker v. Conntess of Bcauchamp,
tur, coniroversia est, nan lis. Cujac. Opera 6 C. & P. 552, 561. But see Reilly v.
PoBth. torn. 5, col. 193, B. and col. 162, D. Fitzgerald, 1 Drury (Ir.), R. 122, wliera
Lis inchoata est ordinata per libellum, et satis- this is questioned.
daiionem, licet non sit lis contestata. Corpus ^ [*7 Ho. Lds. Cas. 633.]
156 ' LAW OP EVIDBNCB. [PAET 11.
was not in controversy at the time to which the declarations
offered in evidence relate, they are admissible, notwithstanding
a controversy did tlien exist upon some otlier braacli of tlie same
general subject. The value of general reputation, as evidence
of the true state of facts, depends upon its being the concurrent
belief of minds unbiased, and in a situation favorable to a knowl-
edge of the truth ; and referring to a period when this fountain
of evidence was not rendered turbid by agitation. But the dis-
cussion of other topics, however similar in their general nature,
at the time referred to, does not necessarily lead to the inference,
that the particular point in issue was also controverted, and,
therefore, is not deemed sufficient to exclude the sort of proof we
are now considering. Thus, where, in a suit between a copy-
holder and the lord of the manor, the point in controversy was,
whether the customary fine, payable upon the renewal of a life-
lease, was to be assessed by*the jury of the lord's court, or by the
reasonable discretion of the lord himself; depositions taken for
the plaintiff, in an ancient suit by a copyholder against a former
lord of the manor, where the controversy was upon the copy-
holder's right to be admitted at all, and not upon the terms of
admission, in which depositions the customary fine was mentioned
as to be assessed by the lord or his steward, were held admissible
evidence of what was then understood to be the undisputed cus-
tom.i In this case, it was observed by one of the learned judges,
that " the distinction had been correctly taken, that where the
lis mota was on the very point, the declarations of persons would
not be evidence ; because you cannot be sure, that in admitting
the depositions of witnesses, selected and brought forward on
a particular side of the question, who embark, to a certain degree,
with the feelings and prejudices belonging to that particular side,
you are drawing evidence from perfectly unpolluted sources. But
where the point in controversy is foreign to that which was before
controverted, there never has been a lis mota, and consequently
the objection does not apply."
§ 133. Declarations made after the controversy has originated,
are excluded, even though proof is offered that the existence of
the controversy was not known to the deelarant. The question
of his ignorance or knowledge of this fact is one which the courts
1 Freeman v. Phillips, 4 M. & S. 486, 497 ; EUiott v. Piersol, 1 Peters, 328, 337.
CHAP. VI. J MATTERS OP GENEEAL INTEREST. 157
will not try; partly because of the danger of an erroneous decision
of the principal fact by the jury, from the raising of too many
collateral issues, thereby introducing great confusion into the
cause ; and partly from the fruitlessness of the inquiry, it being
from its very nature impossible, in most cases, to prove that the
existence of the controversy was not known. The declarant, in
these cases, is always absent, and generally dead. The light
afforded by his declarations is at best extremely feeble, and far
from being certain; and if introduced, with the proof on both
sides, in regard to his knowledge of the controversy, it would
induce darkness and confusion, perilling the decision without the
probability of any compensating good to the parties. It is there-
fore excluded, as more likely to prove injurious than beneficial.^
[* The admissibility of the declarations of members of the family
terminates with the commencement of the controversy, and the
question is not affected, by any knowledge or ignorance on the
part of the declarant of the existence of the controversy ; nor by
proof that such proceedings were fraudulently commenced with
a view to exclude the admissibility of such declaration.^ And it
is here said, that it is the commencement of the controversy, and
not of the situation from which it springs, that is to be regarded
as the commencement of the Us mota, and as terminating the
admissibility of family declarations. But a declaration made
expressly with a view to a probable future contest is admissible,
quantum valeat; but not if made in a prior cause on the same
subject matter, but to this effect the same precise point now in
controversy must have been there involved.^]
§ 134. It has sometimes been laid down, as an exception to the
rule excluding declarations made post litem motam, that declara-
tions concerning pedigree will not be invalidated by the circum-
stance that they were made during family discussions, and for the
1 The Berkley Peerage case, 4 Campb. verum sit, si ibidem, ubi res agitur, audie-
417, per Mansfield, C. J. ; supra, § 124. rit; at si alibi, in loco qui longissim^ dis-
This distinction, and the reasons of it, taret, sic intellexerit, etiam post litem
were recognized in the Roman law; but motam testes de auditu admittuntur.
there the rule was to admit the declar- Longinquitas enim loci in causa est, ut
ations, though made post litam motam, if omnis suspicio abesse videatur quse qui-
they were made at a place so very far re- dem suspicio adesse potest, quando testis
mote from the scene of the controversy, de auditu post litem motam, ibidem, ubi
as to remove all suspicion that the declar- res agitur, deponit." Mascard. De Pro-
ant had heard of its existence. Thus it bat. vol. 1, p. 401 [429], Concl. 410, n. 5, 6.
ia stated by Mascardus : — " Istud autem ^ [* Shedden v. Patrick, 2 Sw. & Tr.
quod diximus, debere testes deponere 170. See Jenkins v. Davies, 10 Queen's
mte litem motam, sic est accipiendum, ut Bench Eep., n. s. 314.1
voi I. 14
]/l8 LAW OP EVIDENCE. [PABT U.
purpose of preventing future controversy ; and the instance given,
by way of illustration, is that of a solemn act of parents, under
their hands, declaring the legitimacy of a child. But it is con-
ceived, that evidence of this sort is admissible, not by way of
exception to any rule, but because it is, in its own nature, original
evidence ; constituting part of the fact of the recognition of exist-
ing relations of consanguinity or affinity ; and falling naturally
under the head of the expression of existing sentiments and aifec-
tions, or of declarations against the interest, and peculiarly within
the knowledge of the party making them, or of verbal acts, part
of the res gestcs}
§ 135. Where evidence of reputation is admitted, in cases of
public or general interest, it is not necessary that the witness
should be able to specify from whom he heard the declarations. For
that, in much the greater number of cases, would be impossible ;
as the names of persons long since dead, by whom declarations
upon topics of common repute have at some time or other been
made, are mostly forgotten.^ And, if the declarant is known, and
appears to have stood in pari casu with the party offering his
declarations in evidence, so tliat he could not, if living, have been
personally examined as a witness to the fact of which he speaks,
this is no valid objection to the admissibility of his declarations.
The reason is, the absence of opportunity and motive to consult
his interest, ait the time of speaking. Wliatever secret wish or
bias he may have had in the matter, there was, at that time, no
excited interest called forth in his breast, or, at least, no means
were afforded of promoting, nor danger incurred of injuring any
interest of his own ; nor could any such be the necessary result
of his declarations. Whereas, on a trial, in itself and of necessity
directly affecting his interest, there is a double objection to ad-
mitting his evidence, in the concurrence both of the temptation
of interest, and the excitement of the lis Tmta?
§ 136. Indeed the rejection of the evidence of reputation, in
1 Supra, §§ 102-108, 131 ; Goodright v. Graliam, B. ; Deacle v. Hancock, 13 Price,
Moss, Cowp. 591 ; Monkton v. The Attor- 236, 237 ; Nichols v. Parker, 14 East, 331,
ney-General, 2 Russ. & My. 147, 160, IGl, note ; Harwood v. Sims, Wightw. 112 ;
164 ; Slaney v. Wade, 1 My. & Cr. 338 ; Freeman v. PhilUps, 4 M. & S. 486, 491,
The Berkley Peerage ease, 4 Campb. 418, cited and approved by Lyndlnirst, C. B.,
per Mansfield, C. J. in Davies v. Morgan, 1 C. & J., 593, 594 ;
2 Moseley v. Davies, 11 Price, 162, 174, Monkton v. Attorney-General, 2 Russ. &
per Richards, C. B. ; Harwood v. Sims, My. 159, IGO, per Ld. Ch. Brougham :
Wightw. 112. Reed v. Jackson, 1 East, 355, 357 ; Chap-
8 Moseley v. Davies, 11 Price, 179, per man v. Cowlan, 13 East, 10.
CHAP. VI.] MATTERS OF GENERAL INTEREST. 159
cases of public or general interest, because it may have come from
persons in .pari casu with the party offering it, would be inconsist-
ent with the qualification of the rule which has already been
mentioned, namely, that the statement thus admitted must appear
to have been made by persons having competent knowledge of the
subject.^ Without such knowledge, the testimony is worthless.
In matters of public right, all persons are presumed to possess
that degree of knowledge, which serves to give some weight to
their declarations respecting them, because all have a common
interest. But in subjects interesting to a comparatively small
portion^ of the community, as a city or parish, a foundation for
admitting evidence of reputation, or the declarations of ancient
and deceased persons, must jfirst be laid, by showing that, from
their situation, they probably were conversant with the matter of
which they were speaking.^
§ 137. The probable want of competent knowledge in the declarant
is the reason generally assigned for rejecting evidence of reputation
or common fame, in matters of mere private right. " Evidence of
reputation, upon general points, is receivable," said Lord Kenyon,
" because, all mankind being interested therein, it is natural to
suppose that they may be conversant with the subjects, and that
they should discourse together about them, having all the same
means of information. But how can this apply to private titles,
either with regard to particular customs, or private prescriptions ?
How is it possible for strangers to know any thing of what con-
cerns only private titles ? " ^ The case of prescriptive rights has
sometimes been mentioned as an exception ; but it is believed
that where evidence of reputation has been admitted in such cases,
it will be found that the right was one in which many persons
were equally interested. The weight of authority, as well as the
1 Supra, §§ 128, 129. turn, possint pro sua communitafe deponere.
2 Weeks v. Sparke, 1 M. & S. 679,686, Licet hujusmodi testes sint de umversitate, el
690 ; Doe d. Molesworth v. Sleeman, 1 deponarit super confinibus sum universitatis,
New Pr. Cas. 170 ; Morewood v. Wood, 14 probant, dummodum praiciptmm ipsi commo-
East, 327, note ; Crease v. Barrett, 1 Cr. dum non sentiant, Ucent infenmt commodum in
M. & Eos. 029 ; Duke of Newcastle v. universum." Mascard. De Probat. vol. 4,
Broxtowe, 4 B. & Ad. 273 ; Rogers v. pp. 389, 390, Concl. 395, n. 1, 2, 9, 19.
Wood, 2 B. & Ad. 245. The Roman law, s Morewood v. Wood, 14 East, 329,
as stated by Mascardus, agrees with the note, per Ld. Kenyon ; 1 Stark. Evld. 30,
doctrine in the text. " Confines p'obantur 31 ; Clothier v. Chapman, 14 East, 331,
per testes. Verum scias velim, testes in hac note ; Reed v. Jaclcson, 1 East, 357 ; Out-
materia, qui vicini, et circum ibi habitant, ram v. Morewood, 5 T. R. 121, 123 ;
esse marjis idoneos quam alios. Si testes non Weeks v. Sparke, 1 M. & S. 679.
sentiant commodum vel incotnmodum immedior
160 LAW OF EVIDBNCE. [PAET H.
reason of the rule, seem alike to forbid the admission of this kind
of evidence, except in cases of a public or quasi public nature.^
§ 138. Tliis principle may serve to explain and reconcile what
is said in the books respecting the admissibility of- reputation, in
regard to particular facts. Upon general points, as we have seen,
such evidence is receivable, because of the general interest which
the community have in them; but particular facts of a private
nature, not being notorious, may be misrepresented or. misunder-
stood, and may have been connected with other facts, by which, if
known, their effect might be limited or explained. Eeputation
as to the existence of such particular facts is, therefore, rejected.
But, if the particular fact is proved aliunde, evidence of general
reputation may be received to qualify and explain it. Thus, in a
suit for tithes, where a parochial modus of sixpence per acre was
set up, it was conceded that evidence of reptitation of the payment
of that sum for one piece of land would not be admissible ; but it
was held, that such evidence would be admissible to the fact that
it had always been customary to pay that sum for all the lands in
the parish.^ And where the question on the record was whether
a turnpike was within the limits of a certain town, evidence of
general reputation was admitted to show that the bounds of the
town extended as far as a certain close ; but not that formerly
there were houses, where none then stood ; the latter being a
1 ElUcott V. Pearl, 10 Peters, 412 ; Lowes, 2 M. & S. 494, 500, where the
Richards v. Bassett, 10 B. & 0. 657, 662, question was as to the' general usage of all
663, per Littledale, J. ; supra, § 130. The the tenants of -a manor, the defendant
following are eases of a quasi public na- being one, to cut certain woods ; — Brett
ture ; though they are usually, but, on the v. Beales, 1 Mood. & Malk. 416, which
foregoing principles, erroneously, cited in was a claim of ancient tolls belonging to
favor of the admissibility of eyidence of the Corporation of Cambridge ; — White
reputation in cases of mere private right, v. Lisle, 5 Madd. Ch. R. 214, 224, 225,
Bp. of Meath v. Ld. Belfleld, BuU. N. P. where evidence of reputation, in regard
295, where the question was, who pre- to a parochial modus, was held admissi
sented the former incumbent of a parish ; ble, because " a class or district of per-
a fact interesting to all the parishioners ; sons was concerned ; " but denied in
Price V. Littlewood, 3 Campb. 288, where regard to a farm modus, because none but
an old entry in the vestry-book, by the the occupant of the farm was concerned,
church-wardens, showing by what persons In Davies v. Lewis, 2 Chitty, K. 535, the
certain parts of the church were repaired, declarations oflered in evidence were
in consideration of their occupancy of clearly admissible, as being those of ten-
pews, was admitted, to show title to a pew, ants in possession, stating under whom
in one under whom the plaintiif claimed ; they held. See supra, § 108.
— Barnes v. Mawson, 1 M. & S. 77, which ^ Harwood v. Sims, Wightw. 112, more
was a question of boundary between two fully reported and explained in Moseley v.
large districts of a manor called the Old Davies, 11 Price, 162, 169-172 ; Chatfield
and New Lands ; — Anscomb v. Shore, 1 v. Pryer, 1 Price, 253 ; Wells o. Jesus
Taunt. 261, where the right of common College, 7 C. & P. 284 ; Loathes v. New-
prescribed for was claimed by all the in- ith, 4 Price, 355.
habitants of Hampton ; — Blackett v.
CHAP. 7I.J MATTERS OP GENERAL INTEREST. 161
particular fact, in which tlie public had no interest.^ So, where,
upon an information against the sheriff of the county of Chester,
for not executing a death-warrant, the question was whether the
sheriif of the county or the sheriffs of the city were to execute
sentence of death, traditionary evidence that the sheriffs of the
county had always been exempted from the performance of that
duty was rejected, it being a private question between two indi-
viduals ; the public haying an interest only that execution be
done, and not in the person by whom it was performed.^ The
question of the admissibility of this sort of evidence seems, there-
fore, to turn upon the nature of the reputed fact, whether it was
interesting to one party only, or to many. If it were of a public
or general nature, it falls within the exception we are now con-
sidering, by which hearsay evidence, under the restrictions already
mentioned, is admitted. But if it had no connection with the
exercise of any public right, nor the discharge of any public duty,
nor with any other matter of general interest, it falls within the
general rule, by which hearsay evidence is excluded.^
§ 139. Hitherto we have mentioned oral declarations, as the
medium of proving traditionary reputation in matters of public
and general interest. The principle, however, upon which these
are admitted, applies to documentary and all other hinds of proof
denominated hearsay. If the matter in controversy is ancient, and
not susceptible of better evidence, any proof in the nature of tradi-
tionary declarations is receivable, whether it be oral or written ;
subject to the qualifications we have stated. Thus, deeds, leases,
and other private documents, have been admitted, as declaratory
of the public matters recited in them.* Maps, also, showing the
1 Ireland v. Powell, Salop. Spr. Ass. 3 T. R. 709, per Grose, J. Where parhc-
1802, per Chambre, J. ; Peake's Evid. 13, ular knowledge of a fact is sought to be
14 (Norris's edit. p. 27 ) . [* It is no ground brought home to a party, evidence of the
of objection to the admissibility of such general reputation and belief of the exist-
evidence, that matters of private interest ence of that fact, among his neighbors, is
are also involved in the public contro- admissible to the jury, as tending to show
versy. Reg. v. Bedford, 4 El. & Bl. 535. that he also had knowledge of it, as well
S. C. 29 Eng. Law and Eq. R. 89.] as they. Brander v. Ferridy, 16 Louisl-
'^ Rex V. Antrobus, 2 Ad. & El. 788, ana, R. 296.
794. * Curzon v. Lomax, 5 Esp. 60; Brett
" White V. Lisle, 4 Madd. Ch. R. 214, v. Beales, 1 M. & M. 416 ; Claxtou v.
224, 225 ; Bp. of Meath v. Ld. Belfield, 1 Dare, 10 B. & C. 17 ; Clarkson v. Wood-
Wile. 215 ; Bull. N. P. 295 ; Weeks v. house, 5 T. R. 412, n. ; 3 Doug. 189,
Sparke, 1 M. & S. 679 ; Withnell v. Gar- s. c. ; Barnes v. Mawson, 1 M. & S. 77,
tham, 1 Esp. 322 ; Doe v. Thomas, 14 78 ; Coombs v. Coether, 1 M. & M. 398 ;
East, 323 ; Phil. & Am. on Evid. 258 ; 1 Beebe v. Parker, 5 T. R. 26 ; Freeman ».
Stark. Evid. 84, 85; Outram v. More- Phillips, 4 M. & S. 486; Crease v. Bar-
wood. 5 T. R. 121, 128 ; Rex v. ErisweU, rett, 1 Cr. Mees. & Ros. 923 ; Denn t>.
14*
162 LAW OF EVIDENCE. [PART II.
boundaries of towns and parishes, are admissible, if it appear that
they have been made by persons having adequate knowledge.-'
Verdicts, also, are receivable evidence of reputation, in questions
of public or general interest.^ Thus, for example, where a public
right of way was in question, the plaintiif was allowed to show a
verdict rendered in his own favor, against a defendant in another
suit, in which the same right of way was in issue ; but Lord
Kenyon observed, that such evidence was, perhaps, not entitled
to much weight, and certainly was not conclusive. The circum-
stance, that the verdict was post litem motam, does not affect its
admissibility.^
§ 140. It is further to be observed, that reputation is evidence
as well against a public right as in its favor. Accordingly, where
the question was, whether a landing-place was public or private
property, reputation, from the declaration of ancient deceased
persons, that it was the private landing-place of the party and his
ancestors, was held admissible ; the learned judge remarking,
that there was no distinction between the evidence of reputation
to establish, and to disparage a public right.*
Spray, 1 T. R. 466 ; BuUen v. Michel, 4 cision upon the right should be had, no
Dow, 298 ; Taylor v. Cook, 8 Price, 650. final decree ever having been made; is
1 1 Phil. Evid. 250, 251 ; Alcock v. inadmissible as evidence of reputation.
Cooke, 2 Moore & Payne, 625 ; 5 Bing. Pim u. Currell, 6 M. & "W. 234.
340, s. c. ; Noyes v. White, 19 Conn. 250. ' Reed v. Jackson, 1 East, 355, 357 ;
Upon a question of boundary between two Bull. N. P. 233 ; City of London v. Clarke,
ferms, it being proved that the boundary Carth. 181 ; Rhodes v. Ainsworth, 1 B. &
of one of them was identical with that of Aid. 87, 89, per Holroyd, J. ; Lancum v.
a hamlet, evidence of reputation, as to the LoveU, 9 Bing. 46-5, 469 ; Cort v. Birkbeck,
bounds of the hamlet was held admissible. 1 Doug. 218, 222, per Lord Mansfield ;
Thomas v. Jenkins, 1 N. & P. 588. But Case of the Manchester Mills, 1 Doug.
an old map of a parish, produced from the 221, n. ; Berry v. Banner, Peake's Cas.
parish chest, and which was made under 156 ; Biddulph v. Ather, 2 Wils. 23 ;
a private inclosure act, was held inadmis- Brisco v. Loraax, 3 N. & P. 388 ; Evans v.
Bible evidence of boundary, without proof Eees, 2 P. & D. 627 ; 10 Ad. & El. 151,
of the inclosure act. Keg. t>. Milton, 1 C. s. c.
& K. 58. * Drinkwater v. Porter, 7 C. & P. 181 ;
2 But an Interlocutory decree for pre- K. v. Sutton, 3 N. & P. 569.
serving the status quo, until a final de-
CHAP. VH.] OP ANCIENT POSSESSIONS. 163
CHAPTEE Vn.
OP ANCIENT POSSESSIONS.
|*§ 141. Ancient documents admitted to establish ancient possessions.
142. The document must come from the proper custody.
143. Generally required that acts of use under them be shown.
144. These documents should appear to be parts of the transactions in question.
145. Under same restrictions reputation received to establish public, but not pr
vate, boundaries.
146. Perambulations of public boundaries estabUshed in a similar manner.]
§ 141. A second exception to the rule, rejecting hearsay evidence,
is allowed in cases of ancient possession, and in favor of the admis-
sion of ancient documents in support of it. In matters of private
right, not affecting any public or general interest, hearsay is
generally inadmissible. But the admission of ancient documents,
purporting to constitute part of the transactions themselves, to
which, as acts of ownership, or of the exercise of right, the party
against whom they are produced is not privy, stands on a different
principle. It is true, on the one hand, that the documents in
question consist of evidence which is not proved to be part of any
res gestce, because the only proof of the transaction consists in the
documents themselves ; and these may have been fabricated, or,
if geniiiiic, may never liave been acted upon. And their effect, if
admitted in evidence, is to benefit persons connected in interest
with the original parties to the documents, and from whose
custody they have been produced. But, on the other hand, such
documents always accompany and form a part of every legal
transfer, of title and possession by act of the parties ; and there
is, also, some presumption against their fabrication, where they
refer to co-existing subjects by which their truth might be exam-
ined.i On this ground, therefore, as well as because such is
generally the only attainable evidence of ancient possession, this
proof is admitted, under the qualifications which will Ve stated.
' 1 Phil. Kvid. 273 ; 1 Stark Evid. 66, 67 ; Clarkson v. Woodhouse, 5 T. R. 413, n.,
per Ld. Msmsfield
164
LAW OF EVIDENCE.
[part II.
§ 142. As the value of these documents depends mainly on
their having been contemporaneous, at least, witli the act of
transfer, if not part of it, care is first taken to ascertain their
genuineness ; and this may be shown primd facie, by proof that
the document comes from the proper custody, or by otherwise
accounting for it. Documents found in a place, in which, and
under the care of persons, with whom such papers might naturally
and reasonably be expected to be found, or in the possession of
persons having an interest in them, are in precisely the custody
which gives authenticity to documents found within it.^ " For
it is not necessary," observed Tindal, 0. J., "that they should be
found in the best and most proper place of deposit. If documents
continue in such custody, there never would be any question as
to their authenticity ; but it is when documents are found in other
than their proper place of deposit, that the investigation com-
mences, whether it is reasonable and natural, under the circum-
stances in the particular case, to expect that they should have
been in the place where they are actually found ; for it is obvious,
that, while there can be only one place of deposit strictly and
1 Per Tindal, C. J., in Bishop of
Meath v. Marq. of Winchester, 2 Bing.
N. c. 183, 200, 201, expounded and con-
firmed by Parke, B., in Croughton v.
Blake, 12 M. & W. 205, 208 ; and in Doe
d. Jacobs V. PhilUps, 10 Jur. 34 ; 8 Ad. &
El. 158, N. s. See also Lygon v. Strutt, 2
Anstr. 601 ; Swinnerton v. Marq. of Staf-
ford, 8 Taunt. 91; Bullen v. Michel, 4
"Dow. 297 ; Earl v. Lewis, 4 Esp. 1 ; Ran-
dolph c. Gordon, 5 Price, 812 ; Manby v.
Curtis, 1 Price, 225, 232, per Wood, B. ;
Bertie v. Beaumont, 2 Price, 303, 307;
Barr v. Gratz, 4 Wheat. 213, 221 ; Winne
V. Patterson, 9 Peters, 663-675 ; Clarke v.
Courtney, 5 Peters, 319, 344 ; Jackson v.
Laroway, 3 Johns. Cas. 383, approved in
Jackson v. Luquere, 5 Cowen, 221, 225;
Hewlett V. Cock, 7 Wend. 371, 374 ; Dun-
can V. Beard, 2 Nott & McC. 400 ; Middle-
ton V. Mass, 2 Nott & McC. 55; Doe v.
Beynon, 4 P. & D. 193 ; infra, § 570 ; Doe
V. Pearce, 2 M. & Rob. 240 ; Tolman v.
Emerson, 4 Pick. 160 ; [United States v.
Castro, 2 How. 846.] An ancient extent
of crown lands, found in the office of the
land revenue records, it being tlie prop-
er repository, and purporting to have been
made by the proper officer, has been held
good evidence of the title of the crown to
lands therein stated to have been pur-
chased by the crown from a subject.
Doe d. Wm. IV. v. Roberts, 13 M. & W.
520. [An ancient private survey is not
evidence. Daniel v. Wilkin, 7 Exch. R.
429.1 Courts will be liberal in admitting
deeds, where no suspicion arises as to
their authenticity. 33oe v. Keeling, 36
Leg. Obs. 312; 12 Jur, 438 ; 11 Ad. & El.
884, N. s. The proper custody of an ex-
pired lease is that of the lessor; Ibid,
per Wightman, J. Whether a document
comes from the proper custody is a ques-
tion for the judge and not for the jury to
determine ; Ibid. Eees v. Walters, 3 M. &
W. 527, 531. The rule stated in the text
is one of the grounds on which we insist
on the genuineness of the books of the
Holy Scriptures. They are found in
the proper custody, or place, where alone
they ought to be looked for ; namely, the
Church, where they have been kept from
time immemorial. They have been con-
stantly referred to, as the foundation of
faith, by all the opposing sects, whose ex-
istence God, in his wisdom, has seen fit to
permit ; whose jealous vigilance would
readily detect any attempt to falsify the
text, and whose diversity of creeds would
render any mutual combination morally
impossible. The burden of proof Is,
therefore, on the objector, to impeach
the genuineness of these hooks ; not on
the Christian, to establish it. See Green-
leaf on the Testimony of the Evangelists,
PreUm. Obs. § 9.
CHAP. VII.J OF ANCIENT POSSESSIONS. 165
absolutely proper, there may be many and various that are reason-
able and probable, though differing in degree; some being more
so, some less ; and in those cases, the proposition to be determined
is, whether the actual custody is so reasonably and probably
accounted for, that it impresses the mind with the conviction that
the instrument found in such custody must be genuine. That
such is the character and description of the custody, which is held
sufficiently genuine to render a document admissible, appears
from all the cases."
§ 143. It is further requisite, where the nature of the case will
admit it, that proof be given of some act done in reference to the
documents offered in evidence, as a further assurance of their
genuineness, and of the claiming of title under them. If the
document bears date jwst litem motam, however ancient, some
evidence of correspondent acting is always scrupulously required,
even in cases where traditionary evidence is receivable.^ But in
other cases, where the transaction is very ancient, so that proof
of contemporaneous acting, such as possession, or the like, is not
probably to be obtained, its production is not required.^ But
where unexceptionable evidence of enjoyment, referable to the
document, may reasonably be expected to be found, it must be
produced.^ If such evidence, referable to the document, is not
to be expected, still it is requisite to prove some acts of modern
enjoyment, with reference j;o similar documents, or that modern
possession or user should be shown, corroborative of the ancient
documents.*
§ 144. Under these qualifications, ancient documents, purporting
to be a part of the transactions to which they relate, and not a mere
narrative of them, are receivable as evidence, that those trans-
actions actually occurred. And though tliey are spoken of as
hearsay evidence of ancient possession, and as such are said to be
admitted in exception to the general rule ; yet they seem rather
to be parts of the res gestce, and therefore admissible as original
evidence, on the principle already discussed. An ancient deed,
by which is meant one more than thirty years old, having nothing
1 1 Phil. Evid. 277 ; Brett v. Beales, 1 ' 1 Phil. Evid. 277 ; Plaxton v. Dare,
Mood. & M. 416 ; [United States v. Cas- 10 B. & C. 17.
tro, 24 IIow. LlO.] * Rogers v. Allen, 1 Campb. 309, 311 ;
2 Clarkson v. Woodhouse, 5 T. R. 412, Clarkson v. Woodhouse, 5 T. E. 412, n.
413, n., per Ld. Mansfield ; supra, § 180, See the cases collected in note to § 144,
and cases tliera cited. infra.
166
LAW OF EVIDENCE.
[part II.
suspicious about it, is presumed to be genuine without express
proof, tlie witnesses being presumed dead ; and, if it is found in
the proper custody, and is corroborated by evidence of ancient or
modern corresponding enjoyment,^ or by otlier equivalent or ex-
planatory proof, it is to be presumed that the deed constituted
part of the actual transfer of property therein mentioned ; because
this is the usual and ordinary course of such transactions among
men. The residue of the transaction may be as unerringly in-
ferred from the existence of genuine ancient documents, as the
remainder of a statue may be made out from an existing torso,
or a perfect skeleton from the fossil remains of a part.
§ 145. Under this head may be mentioned the case of ancient
boundaries; in proof of which, it has sometimes been said, that
traditionary evidence is admissible from the nature and necessity
of the case. But, if the principles already discussed in regard
to the admission of hearsay are sound, it will be difficult to sustain
an exception in favor of such evidence merely as applying to
boundary, where the fact is particular, and not of public or
general interest. Accordingly, though evidence of reputation is
1 It has been made a question, whether
the rliicument may be read in evidence,
before the proof of possession or other
equivalent corroborative proof is offered ;
but it is now stated that the document, if
otherwise apparently genuine, may be first
read ; for tlie question, whether there
has been a corresponding possession, can
hardly be raised till the court is made
acquainted with the tenor of the instru-
ment. Doe V. i'assingham, 2 C. & P. 440.
If the deed appears, on its face, to have
been executed under an authority which
is matter of record, it is not admissible,
however ancient it may be, as evidence of
title to land, without proof of the author-
ity under which it was executed. Tol-
man v. Emerson, 4 Pick. 160. A graver
question ha» been, whether the proof of
possession is indispensable ; or wliether
its ansenue may be supplied by other
satisfa;;Lory corroborative evidence. In
Jackson d. Lewis v. Laroway, 3 Johns.
Cas. 2d3, it was held by Kent, J., against
the opinion of the other judges, that it
was indispensable ; on the authority of
Fleta, lib. 6, c;ap. 34 ; Co. Lit. 6 b ; Isack
V. Clarke, 1 RoU. R. 132; James v. Trol-
lop, Skin. 239 ; 2. Mod. 828 ; Forbes v.
Wale, 1 W. Bl. E. 532; and the same
doctrine was agam asserted by him, in
delivering the judgment of the court, in
Jackson d. Burhans v. Blanshan, 8 Johns.
292, 298. See also Thompson v. Bullock,
1 Bay, 364 ; Middleton v. Mass, 2 Nott &
McC. 55 ; Carroll v. Norwood, 1 Har. & J.
174, 175 ; Shaller v. Brand, 6 Binn. 439 ;
Doe If. Phelps, 9 Johns. 169, 171. But
the weight of authority at present seems
clearly the other way ; and it is now
agreed that, wliere proof of possession can-
not be had, the deed may be read, if its
genuineness is satisfactorily established
by other circumstances. See Ld. Ran-
cliffe V. Parkins, 6 Dow, 202, per Ld.
Eldon ; McKenire v. Prazer, 9 Ves. 5;
Doe V. Passingham, 2 C. & P. 440; Barr
V. Gratz, 4 Wheat. 213, 221 ; Jackson d.
Lewis V. Laroway, 3 Jolms. Cas. 283, 287 ;
Jackson d. Hunt v. Luquere, 5 Cowen,
221, 22.3 ; Jackson d. Wilkins v. Lamb, 7
Cowen, 431 ; Hewlett v. Cock, 7 Wend.
371, 373, 374 ; Willson v. Betts, 4 Denio,
201. Where an ancient document, pur-
porting to be an exemplitication, is pro-
duced from the proper place of deposit,
having the usual slip of parchment to
which the great seal is appenderl, but no
appearance that any seal was ever afiixed,
it is still to be presumed, that the seal was
once there and has been accidentally re-
moved, and it may be read in evidence as
an exempUflcation. Mayor, &c. of Beveiv
ley V. Craven, 2 M. & Rob. 140.
CHAP.
VII.]
OF ANCIENT POSSESSIONS.
167
received, in regard to the boundaries of parishes, manors, and the
like, which are of public interest, and generally of remote an-
tiquity, yet, by the weight of authority and upon better reason,
such evidence is held to be inadmissible for the purpose of proving
the boundary of a private estate, when such boundary is not
identical with another of a public or quasi public nature. ^ Where
1 Ph. and Am. on Evid. 255, 256 ;
supra, § 139, note (2) ; Thomas v. Jen-
kins, 1 N. & P. 588 ; Reed v. Jackson, 1
East, ^55, 357, per Ld. Kenyon; Doe v.
Thomas, 14 East, 323 ; Morewood v.Wood,
Id. 327, note ; Outrana v. Morewood, 5
T. K. 121, 123, per Ld. Kenyon; Nichols
V. Parlcer, and Clothier v. Chapman, in 14
East, 331, note ; Weeks v. Sparke, 1 M. &
S. 688, 689 ; Duravan v. Llewellyn, 15 Q.
B. 791, Bxch. Chanc. ; Cherry v. Boyd,
LitteU's Selected Cases, 8, 9 ; 1 Phil.
Evid. 182 (3d Lond. ed.), cited and ap-
proved by Tilghman, C. J., in Buchanan
V. Moore, 10 S. & R. 281. In the passage
thus cited, the learned author hmits the
admissibiUty of this kind of evidence to
questions of a public or general nature ;
including a right of common by custom ;
which, he observes, " is, strictly speaking,
a private right ; but it is a general right,
and therefore, so far as regards the admissi-
bility of this species of evidence, has been
considered as public, because it affects a large
number of occupiers within a distiict." Supra,
§§ 128, 138; Gresleyon Evid. 220, 221.
And more recently, in England it has
been decided upon full consideration, that
traditionary evidence, respecting rights
not of a public nature, is inadmissible.
Dunraven v. Llewellyn, 15 Ad. & El. 791,
N. s. The admission of traditionary evi-
dence, in cases of boundary, occurs more
frequently in the United States than in
England. By far the greatest portion of
our territory was originally surveyed in
large masses or tracts, owned either by
the State, or by the United States, or
by one, or a company, of proprietors ;
under whose authority these tracts were
again surveyed and divided into lots suit-
able for single farms, by lines crossing the
whole tract, and serving as the common
boundary of very many farm-lots, lying
on each side of it. So that it is hardly
possible, in such cases, to prove the origi-
nal boundaries of one farm, without affect-
ing the common boundary of many ; and
thus, in trials of this sort, the question is
similar, in principle, to that of the bound-
aries of a manor, and therefore tradition-
ary evidence is freely admitted. Such
was the case of Boardman v. Reed, 6
Peters, 328, where the premises in ques-
tion being a tract of eight thousand acres,
were part of a large connection of surveys,
made together, and containing between
fifty and one hundred thousand acres of
land ; and it is to such tracts, interesting
to very many persons, that the remarks
of Mr. Justice M'Lean, in that case (p.
341), are to be applied. In Conn, et al, v.
Penn. et al. 1 Pet. C. C. Rep. 496, the
tract whose boundaries were in contro-
versy was called the manor of Spring-
etsbury and contained seventy thousand
acres ; in which a great number of indi-
viduals had severally' become interested.
In Doe d. Taylor v. Roe et al. 4 Hawks,
116, traditionary evidence was admitted
in regard to Earl Granvill's line, which
was of many miles in extent, and after-
wards constituted the boundary between
counties, as well as private estates. In
Ralston v. Miller, 3 Randolph, 44, the
question was upon the boundaries of a
street in the city of Richmond ; concern-
ing which kind of boundaries it was said,
that ancient reputation and possession
were entided to infinitely more respect,
in deciding upon the boundaries of the
lots, than any experimental surveys. In
several American cases, which have some-
times been cited in favor of the admissi-
biUty of traditionary evidence of bound-
ary, even though it consisted of particidar
facts, and in cases of merely private con-
cern, the evidence was clearly admissible
on other grounds, either as part of the
original res gestce, or as the declaration of a
party in possession, explanatory of the
nature and extent of his claim. In this
class may be ranked the cases of Caufman
V. The Congregation of Cedar Spring, 6
Binn. 59 ; Sturgeon v. Waugh, 2 i'eates,
476 ; Jackson d. McDonald v. McCall, 10
Johns. 377 ; Hamilton v. Minor, 2 S. & R
70; Higley v. Bidwell, 9 Conn. 477; HaU
V. Gittings, 2 Harr. & Johns. 112 ; Red-
ding V. McCubbin, 1 Har. & McHen. 84.
In "Wooster v. Butler, 13 Conn. K. 309, it
was said by Church, J., that traditionary
evidence was receivable, in Connecticut, to
prove the boundaries of land between in-
dividual proprietors. But this dictum
was not called for in the case ; for the
question was, whether there had anciently
been a highway over a certain tract of up-
168
LAW OP EVIDENCE.
[PAUT a
the question is of such general nature, whether it be of boundary
or of right of common by custom, or the like, evidence of reputa-
tion is admitted only under the qualifications already stated,
requiring competent knowledge in the declarants, or persons from
whom the information is derived, and that they be persons free
land ; which being a subject of common
and general interest, was clearly within
the rule. It has, however, subsequently
been settled as a point of local law in that
state, that such evidence is admissible
to prove private boundaries. Hinny v.
Farnsworth, 17 Conn. R. 355, 363. In
Pennsylvania, reputation and hearsay are
held entitled to respect, in a question of
boundary, where from lapse of time there
is great difliculty in proving the existence
of the original landmarks. Nieman v.
Ward, 1 Watts & Serg. 68. In Den d.
Tate V. Southard, 1 Hawks, 45, the ques-
tion was, whether the lines of the sur-
rounding tracts of land, if made for those
tracts alone, and not for the tract in dis-
pute, might be shown hy reputation, to be
the *' known and visible boundaries '* of the
latter tract, within the fair meaning of
those words in the statute of North Caro-
lina, of 1791, oh. 15. It was objected, that
the boundaries mentioned in the act were
those only, which had been expressly re-
cognized as the bounds of the particular
tract in question, by some grant or mesne
conveyance thereof; but the objection was
overruled. But in a subsequent case (Den
d. Sasser v. Herring, 3 Dever. Law Rep.
340), the learned chief justice admits, that
in that state, the rules of the common law,
in questions of private boundary, have
been broken in upon. " We have," he re-
marks, " in questions of boundary, given
to the single declarations of a .deceased
individual, as to a line or corner, the
weight of common reputation, and per-
mitted such declarations to be proven ;
under the rule, that, in questions of bound-
ary, hearsay is evidence. Whether this
is within the spirit and reason of the rule,
it is now too late to inquire. It is the
well-established law of this state. And if
the propriety of the rule was now res
Integra, perhaps the necessity of the case,
arising from the situation of our country,
and the want of self-evident termini of our
lands, would require its adoption. For,
although it sometimes leads to falsehood,
it more often tends to the establishment
of truth. From necessity, we have, in
this instance, sacrificed the principles upon
which the rtiles of evidence are founded."
A similar course has been adopted in Ten-
nessee. Beard v. Talbot, 1 Cooke, 142.
In South Carolina, the declarations of a
deceased surveyor, who originally sur-
veyed the land, are admissible, on'a ques-
tion as to its location. Speer v. Coate, 3
McCord, 227; Blythe v. Sutherland, Id.
258. In Kentucky, the latter practice
seems similar to that in North Carolina.
Smith V. Nowells, 2 Littell, Rep. 159;
Smith V. Prewitt, 2 A. K. Marsh. 155, 158.
In Neu) Humpshire, the like evidence has
in one case been held admissible, upon the
alleged authority of the rule of the com-
mon law, in 1 Phil. Evid. 182 ; hut in the
citation of the passage by the learned
chief justice, it is plain, from the omis-
sion of part of the text, that the restriction
of the rule to subjects of public or general
interest was not under his consideration.
Shepherd v. Thompson, 4 N. Hamp. Rep.
213, 214. More recently, however, it has
been decided in that state, " that the dec-
larations of deceased pei-sons, who, from
their situation, appear to have liad the
means of knowledge respecting private
boundaries, and who had no interest to
misrepresent, may well be admitted in
evidence." Great Falls Co. v. Worster,
15 N. Hamp. 412, 437; Smith v. Powers,
Idem. 546, 564. . Subject to these excep-
tions, the goner.al practice in this country,
in the admission of traditionary evidence
as to boundaries, seems to agree with the
doctrine of the common law as stated in
the text. In Weems v. Disney, 4 Har. &
McHen. 156, the depositions admitted
were annexed to a return of commission-
ers, appointed under a statute of Mary-
land, "for marking and bounding lands,"
and would seem, therefore, to have been
admissible as part of the return, which
expressly referred to them ; but no final
decision was had upon the point, tlie suit
having been compromised. In Buchanan
V. Moore, 10 S. & R. 275, the point was,
whether traditionary evidence was ad-
missible while the declarant was livin;;.
By the Roman law, traditionary evid-
ence of common fame seems to have been
deemed admissible, even in matters of pri-
vate boundary. Mascard. De Probat vol.
1, p. 391, Concl, 396.
CHAP, ra.] OP ANCIENT POSSESSIONS. 169
from particular and direct interest at the time, and are since
deceased.^
§ 146. In this connection may be mentioned the subject of
perambulations. The writ de perambulatione faciendd lies at com-
mon law, when two lords are in doubt as to the limits of their
lordships, villas, <fec., and by consent appear in chancery, and agree
that a perambulation be made between them. Their consent
being enrolled in chancery, a writ is directed to the sheriff to
make the perambulation, by the oaths of a jury of twelve knights,
and to set up the bounds and limits, in certainty, between the
parties.^ These proceedings arid the return are evidence against
the parties and all others in privity with them, on grounds here-
after to be considered. But the perambulation consists not only
of this higher written evidence, but also of the acts of the persons
making it, and their assistants, such as marking boundaries,
setting up monuments, and the like, including their declarations
respecting such acts, made during the transactions. Evidence
of what these persons were heard to say upon such occasions is
always received; not, however, as hearsay, and under any sup-
posed exception in favor of questions of ancient boundary, but as
part of the res gestce, and explanatory of the acts themselves, done
in the course of the ambit.^ Indeed, in the case of such extensive
domains as lordships, they being matters of general interest, tradi-
tionary evidence of common fame seems also admissible on the
other grounds, which have been previously discussed.*
1 Supra, §§ 128, 129, 130, 135, 136, 137. iel v. Wilkin, 12 EngUsh Law & Eq.
It is held in Neiu York, that in ascertain- 547.]
ing facts, relative to the possession of, and ^ 5 Com. Dig. 732, Pleader, 3 G. ; E.
title to, lands, which occurred more than a N. B. [133] D.; 1 Story on Eq. Jurisp.
centm-y before the time of trial, evidence § 611. See also St. 13 G. 3, c. 81, § 14 ;
is admissible which, in regard to recent St. 41 G. 3, c. 81, § 14 ; St. 58 G. 3, c. 45,
events, could not be received ; such as § 16.
histories of established credit, as to public ^ Weeks v. Sparke, 1 M. & S. 687, per
transactions ; the recitals in public records, Ld. EUenborough ; svpra, § 108 ; Ellicott
statutes, legislative journals, and iincient v. Pearl, 1 McLean, 211.
grants and charters; j udicial records ; an- * Supra, § 128-137. The writ de per-
cient maps, and depositions, and the like, ambulatione fadenda is not known to have
But it is admitted that this evidence is been adopted in practice, in the United
.dways to be received with great caution. States ; but in several of the states, reme-
aud with due allowance for its impcrfec- dies somewhat similar in principle have
lion, and its capability of misleftding. Bo- been provided by statutes. In some of the
gardus v. Trinity Clmrch, Kinney's Law states, provision is only made for a periodi-
Compend, for 1850, p. 159. [See also as to cal perambulation of the boundaries of
the admissibility of ancient maps and sur- towns by the selectmen ; LL. Maine,
vcys, Koss V. lihoads, 15 Penn. St. R. 163 ; Rev. 1840, ch. 5 ; LL. N. Ilamp. 1842, ch.
Penny I'ot Landing v. Philadelphia, IB lb. 37 ; Mass. Rev. Stats, ch. 15 ; LL. Con-
79; Whitehouse v. Bickford, 9 Foster, necticut. Rev. 1849, tit. 3, ch. 7 ; or, for a
47 1 ; Adams v. Stanyan, 4 lb. 405 ; Dan- definite settlement of controversies re-
VOL. I. 15
170
LAW OP EVIDENCE.
[PiET 11,
speoting them, by the puhlio surveyor, as
in New York, Rev. Code, Part I. ch. 8,
tit. 6. In others, the remedy is extended
to the boundaries of private estates. See
Elmer's Digest, pp. 98, 99, 315, 316 ; New-
Jersey, Eev. St. 1846, tit. 22, ch. 12 ; Vir-
ginia, ^ey. Code, 1819, vol. 1, pp. 358,
359. A very complete summary remedy,
m all cases of disputed boundary, is pro-
vided in the statutes of Delaware, Revi-
sion of 1829, pp. 80, 81, tit. Boundaries,
III. To perambulations made under any
of these statutes, the principles stated in
the text, it is conceived, will apply.
Lll-li' illl.j OP DBCLABATIONS AGAINST INTEBEST. 171
CHAPTER VIII.
OP BECLAEATIONS AGAINST INTEREST.
I * § 147. Declarations against the interest of the person making them how regarded,
inter alios.
148. The interest of the party, his means of knowledge, and the want of motive
to misrepresent, afford the guaranty of truth.
149. AH cases do not require the declaration to be against interest ; but that is the
general rule.
150. The rule includes written entries, even in private books, affecting questions
involving the rights of third parties.
151. Entries received where countervailed by credits.
152. So also where the particular portion not against the interest of person mak-
ing it.
153. Not requisite the party could he a witness himself, or made on personal
knowledge, or no other testimony.
154. What proof of the character in which the party acted is required.
155. Entries in parish books, as to ecclesiastical dues.]
§ 147. A THIRD exoeption.to the rule, rejecting hearsay evidence;,
is allowed in the case of declarations and entries made hy persons
since deceased, and against the interest of the persons making them,
at the time when they were made. We have already seen,^ that
declarations of third persons, admitted in evidence, are of two
classes ; one of which consists of written entries, made in the
course of official duty, or of professional employment ; where the
entry is one of a number of facts, which are ordinary and usually
connected with each other, so that the proof of one affords a pre-
sumption that the others have taken place ; and, therefore, a fair
and regular entry, such as usually accompanies facts similar to
those of which it speaks, and apparently contemporaneous with
them, is received as original presumptive evidence of those facts.
And, the entry itself being original evidence, it is of no impor-
tance^ as regards its admissibility, whether the person making it
be yet living or dead. But declarations of the other class, of
which we are now to speak, are secondary evidence, and are received
only in consequence of the deatli of the person making them.
This class embraces not only entries in books, but all other dec-
1 Supra, §§ 115, 116, and cases there cited
172 LAW OP EVIDENCE. [PAET II.
larations or statements of facts, whether verbal or ia writing, and
whether they were made at tlie time of the fact declared or at a
subsequent day.^ But, to render them admissible, it m^ist appear
that the declarant is deceased ; that he possessed competent
knowledge of the facts, or that it was his duty to know them ;
and thart the declarations were at variance with his interest.'^
When these circumstances concur, the evidence is received, leav-
ing its weight and value to be determined by other considerations.
§ 148. The ground upon which this evidence is received, is
the extreme improbability of its falsehood. The regard which men
usually pay to their own interest is deemed a sufficient security,
both that the declarations were not made under any mistake of
fact, or want of information on the part of the declarant, if he
had the requisite means of knowledge, and that the matter de-
clared is true. The apprehension of fraud in the statement is
rendered still more improbable from the circumstance, that it is
not receivable in evidence until after the death of the declarant ;
and that it is always competent for the party, against whom such
declarations are adduced, to point out any sinister motive for
making them. It is true, that the ordinary and highest tests of
the fidelity, accuracy, and completeness of judicial evidence are
'■ Ivat V. Fincli, 1 Taunt. 141 ; Doe v. cient. The Sussex Peerage Case, 11
Jones, 1 Campb. 367 ; Uavies v. Vievce, 2 Clark & Fin. 85. In HoUaday v. Little-
T. R. 53, and HoUoway v. Raikes, there page, 2 Munf. 316, the joint declarations
cited ; Doe v. Williams, Cowp. 621 ; of a deceased shipmaster, and tlie living
Peaceable v. Watson, 4 Taunt. IB ; Stan- owner, that the defendant's passage-money
ley V. White, 14 East, 332, 341, per Ld. liad been paid by the plaintiff, were lield
Ellenborousfh ; Haddow v. Parry, 3 Taunt, admissible, as parts of the res gestce, being
303 ; Goss v. Watlington, 3 Brod. & liing. contemporaneous with the time of sailing.
132 ; Strode v. Winchester, 1 Dick. 397 ; This case, therefore, is not opposed to the
Barker v. Kay, 2 Russ. 03, 76, and cases others cited. Neither is Sherman v. Cros-
in p. 07, note; Warren v. Greenville, 2 by, 11 Johns. 70, where a receipt of pay-
Stra. 1120 ; 2 Burr. 1071, 1072, s. i;. ; Doe ment of a judgment recovered by a third
V. Turfbrd, 3 B. & Ad. 808, per Parke, J. ; person against the defcjidant was held ad-
Harrison I'. Blades, 3 Campb. 457 ; Man- missible in an action for the money so paid,
ning II. Leaclimere, 1 Atk. 453. by the parly paying it, he having had
2 Short V. Lee, 2 Jae. & Walk. 464, authority to adjust the demand, and the
488, per Sir Thomas Plumer, M. li. ; Doe receipt being a documentary fact in the
V. Robson, 15 East, 32, 34; Iligham v. adjustment; though the attorney who
Eidgway, 10 East, 100, per Ld. Ellen- signed the receipt was not produced, nor
borougli ; Middloton v. Melton, 10 B. & C. proved to bo dead. In auditing the ac-
817, 827, per I'arkc, J. ; Regina v. Wortli, counts of guardians, administrato"l-s, &c.,
4 Ad. & i;i. N. s. 137, per Ld. Denman ; the course is, to admit receipts as prima
2 Smith's Leading Cases, 103, note, and facie sufficient vouchers. Shearman i:
cases there cited; Spargo v. Brown, 0 Akins, 4 Pick. 283; Nichols d. AVebb, 8
B. & C. 0;!5. The interest, with which Wheat. 326; Welsh v. Barrett, 15 j\tass.
the declarations were at variance, must be 380; Wilbur v. Selden, 6 Cowen, 162;
of a periiiu'ari/ nature. Davis v. Lloyd, 1 Farmers Bank v. Whitehill, 16 S. & R.
Car. & ]'. 276. The apprehension of pos- 80, 00; Stokes o. Stolces, 6 Marlin, h. a.
Bible danger of a prosecution is not suffi- 351.
CUAP. VIII.] OP DECLARATIONS AGAINST INTEREST. 173
here wanting ; but their place is, in some measure, supplied by
the circumstances of the declarant ; and the inconveniences resuli>-
ing from the exclusion of evidence, having such guaranties for its
accuracy in fact, and from its freuiom from fraud, are deemed
much greater, in general, than any which would probably be
experienced fi'om its admission.^
§ 149. In some cases, the courts sevjm to have admitted this evi-
dence, without requiring proof of adverse interest in the declarant ;
while in others stress is laid on the fact, that such interest had
already appeared, aliunde, in the course of the trial. In one case
it was argued, upon the authorities cited, that it was not material
that the declarant ever had any actual interest, contrary to his
declaration ; but this position was not sustained by the- court.^
In many other cases, where the evidence consisted of entries in
books of account, and the like, they seem to have been clearly
admissible as entries made in the ordinary course of business or
duty, or parts of the res gestce, and therefore as original, and not
secondary evidence ; though the fact, that they were made against
the interest of the person making them, was also adverted to.'
But in regard to declarations in general, pot being entries or acts
of the last-mentioned character, and which are admissible only on
the ground of having been made contrary to the interest of the
declarant, the weight of authority, as well as the principle of
the exception we are considering, seem plainly to require that
such adverse interest should appear, either in the nature of the
case, or from extraneous proof.* And it seems not to be suffi-
1 Phil. & Am. on Evid. 307, 308; 1 casion to express my opinion judicially
Phil Evid. 293, 294 ; Gresley on Evid. upon it, I will do so ; but I desire not to
221 ; [Bird v. Hueston, 10 Chritehfield be considered as bound by that, as a rule
(Ohio), 418.] of evidence." The objection arising from
2 Barker v. Ray, 2 Euss. 63, 67, 68, the rejection of such evidence in the case
cases cited in note ; Id. p. 76. Upon this was disposed of in another manner.
point, Eldon, Lord Chancellor, said : — ^ It has been questioned, whether there
" The cases satisfy me, that evidence is is iiny ditference in the principle of ad-
admissible of declarations made by per- missibility between a written entry and
sons who have a competent knowledge of an oral declaration of an agent, concern-
the subject to which such declarations re- ing his having received money for his
fer, and where their interest is concerned ; principal. See supra, §113, note; Furs-
and the only doubt I have entertained don v. Clogg, 10 M. & W. 572; Infra,
was as to the position, that you are to re- § 152, note.
ceive evidence of declarations where there ^ Higham v. Ridgway, 10 East, 109 ;
is no interest. At a certain period of my Warren v. Greenville, 2 Stra. 1129 ; ex-
professional life, I should have said that pounded by Lord Mansfield, in 2 Burr.
this doctrine was quite new to me. I do 1071, 1072 ; Gleadow v. Atkin, 3 Tyrwh.
not mean to say more than that I still 302, 303; 1 Cromp. & Mees. 423, 424;
doubt concerning it. When I have oc- Short v. Lee, 2 Jac. & W. 489 ; Marks i'.
15*
174 LAW OF EVIDENCE. [PilET H.
•
cient that, in one or more points of view, a declaration may be
against interest, if it appears, upon the wliole, that the interest
of the declarant would be rather promoted than impaired by the
declaration.^
§ 150. Though the exception we are now considering is, as we
have just seen, extended to declarations of any kind, yet it is much
more frequently exemplified in documentary evidence, and particu-
larly in entries in books of account. Where these are books of
collectors of taxes, stewards, bailiffs, or receivers, subject to the
inspection of others, and in which the first entry is generally of
money received, charging the party making it, they are, doubt-
less, witliin the principle of the exception.^ But it has been
extended still farther, to include entries in private looks also,
though retained within the custody of their owners ; their liability
to be produced on notice, in trials, being deemed sufficient security
against fraud ; and the entry not being admissible, unless it charges
the party maldng it with the receipt of money on account of a third
person, or acknowledges the payment of money due to himself; in
either of which cases it would be evidence against him, and there-
fore is considered as sufficiently against his interest to bring it
within this exception.^ The entry of a mere memorandum of an
agreement is not sufficient. Thus, where the settlement of a pan
Lahee, 3 Bing. N. c. 408, 420, per Parke, Geaves, 8 C. & P. 592. And see Mus
J.; Barker u. Ray, 2 Russ. 63, 76 ; supra, grave v. Emerson, 16 Law Journ. 174,
§ 147, and cases in notes. Q. B. [An ancient book, kept among
1 Phil. & Am. on Evid. 320; 1 Phil, the records of a town, purporting to be the
Evid. 305, 306 ; Short v. Lee, 2 Jac. & W. " Selectmen's book of accounts with the
464. treasury of the town," is admissible in
2 Barry v. Bebbington, 4 T. R. 514 ; evidence of the iiicts therein stated ; and,
Goss V. Watlington, 3 Brod. & Bing. 132; the selectmen being at the same time as-
Middleton v. Melton, 10 B. & C. 317; Stead sessors, an entry in sucli book of a credit
V. Heaton, 4 T. R. 669 ; Short v. Lee, 2 by an order in favor of the collector for a
Jac. & W. 464 ; Whitmarsh v. George, 8 discount of a particular individual's taxes
B. & C. 556 ; Dean, &c. of Ely v. Calde- was held to be evidence of the abatement
cott, 7 Bing. 433 ; Marks v- Lahee, 3 Bing. of the tax of such individual. Boston »
N. c. 408 ; Wynne v. Tyrwhitt, 4 B. & Weymouth, 4 Gush. 538.]
Aid-. 376 ; De Rutzen v. Parr, 4 Ad. & El. » Warren v. Greenville, 2 Stra. 1029 ,
52; 2 Smith's Leading Gas. 193, note; 2 Burr. 1071, 1072, s. c. ; Higham v.
Plaxton V. Dare, 10 B. & C. 17, 19 ; Doe Ridgway, 10 East, 109; Middleton v. Mel-
V. Gartwright, Ry. & M. 62. An entry by ton, 10 Barn. & Gress. 317. In those
a steward in his books, in his own favor, states of the Union in which the original
unconnected with other entries against entries of the party, in his own account
him, is held not admissible to prove the books, may be evidence for him, and
facts stated in' such entry. Knight v. where, tlierefore, a false entry may some-
Marq. of Waterford, 4 Y. & G. 284. But times amount to the crime of forgery,
where the entr" goes to show a general there is much stronger reason for admit-
balance in his o<vn favor, it has been ruled ting the entries in evidence against third
not to affect the admissibility of a particu- persons. See also Hoare v. Gorytiin, 4
iar entry charging himself. Wilhams v. Tauiit 560.
CHAP. VIII.J OP DECLARATIONS AGAINST INTEEKST. l75
per was attempted to be proved by showing a contract of hiring
and service ; the books of his deceased master, containing minutes
of his contracts with his servants, entered at the time of contract-
ing with them, and of subsequent payments of their wages, were
held inadmissible ; for the entries were not made against the wri-
ter's interest, for he would not be liable unless the service were
performed, nor were they made in the course of his duty or
employment.-'
^ § 151. Where the entry is itself the only evidence of the charge,
of which it shows the subsequent liquidation, its admission- has
been strongly opposed, on the ground, that, taken together, it is
no longer a declaration of the party against his interest, and may
be a declaration ultimately in his own favor. This point was
raised in the cases of Migham v. Ridgivay, where an entry was
simply marked as paid, in the margin ; and of Rowe v. Brenton,
which was a debtor and creditor account, in a toller's books,
of the money received for tolls, and paid over. But in neither of
these cases was the objection sustained. In the former, indeed,
there was evidence aliunde, that the service charged had been
performed; but Lord EUenborough, though he afterwards ad-
verted to this fact, as a corroborating circumstance, first laid
down the general doctrine, that " the evidence was properly ad-
mitted, upon the broad principle on which receivers' books have
been admitted." But in the latter case there was no such proof;
and Lord Tenterden observed, tliat almost all the accounts which
were produced were accounts on both sides ; and that the objec-
tion would go to the very root of that sort of evidence. Upon
these authorities, the admissibility of such entries may perhaps be
considered as established.^ And it is observable, in corroboration
of their admissibility, that in most, if not all of the cases, they
appear to have been made in the ordinary course of business or
of duty, and therefore were parts of the res gestae?
1 Regina v. 'Wortli, 4 Ad. & El. n. s. " In Dowe v. Vowles, 1 M. & Rob. 261,
132. the evidence offered w.is merely a trades-
2 Higliam v. Ridgway, 10 East, 109; man's bill, receipted in full; which Was
Rowe V. Brenton, 3 Man. & R. 207 ; 2 properlj' rejected by Littledale, J., as It
Smith's Leading Cas. 196, note. In Wil- had not the merit of an original entry; for
lianis B Geavcs, 8 C. & P. 592, the entries though the receipt of payment was against
in a deceased steward's account were ad- the party's interest, yet the main liict to
aiitted, tliough the balance of the account he established was the performance of the
was in liis favor. See also Doe v. Tyler, services charged in the bill, tlie appear-
4 M. & P. 377, there cited. Doe v. Wliit- ance of which denoted tliat better evi-
nomb, 15 Jur. 778. dence existed, in the original entry In the
176 LAW OP EVIDENCE. [PART II.
§ 152. It has also been questioned, whether the entry is to be
received in evidence of matters^ wliich, though forming fart of the
declaration, were riot in themselves against the interest of the declar-
ant. Tliis objection goes not only to collateral and independent
facts, but to the class of entries mentioned in the preceding
section ; and would seem to be overruled by those decisions. But
the point was solernnly argued in a later case, where it was
adjudged, that though, if the point were now for the first time
to be decided, it would seem more reasonable to hold, that the
memorandum of a receipt of payment was admissible only to
the extent of proving that a payment had been made, and the
account on which it had been made, giving it the effect only of
verbal proof of the same payment ; yet, that the authorities had
gone beyond that limit, and the entry of a payment against the
interest of the party making it had been held to have the effect
of proving the truth of other statements contained in the same
entry, and connected with it. Accordingly, in that case, where
three persons made a joint and several promissory note, and
a partial payment was made by one, which was indorsed upon the
note in these terms: " Eeceived of W. D. the sum of £280, on
account of the within note, the X300" (which was the amount
of the note) '■^having leen originally advanced to JS. H" — for
which payment an action was brought by the party paying, as
surety, against B. H., as the principal debtor ; it was held, upon
the authority of Higham v. Ridgway, and of Doe v. Mobson, that
the indorsement, the creditor being dead, was admissible in evi-
dence of the whole statement contained in it ; and consequently,
that it was primd facie proof, not only of the payment of the
money, but of the person who was the principal debtor, for whose
account it was paid ; leaving its effect to be determined by the
jury.i
tradesman's book. The same objection, for the purpose of getting a discharge "
indeed, was talien liere, by the learned See also infra, § 162.
counsel for the defendant, as in the cases ^ Davies v. Humphreys, 6 Mees. &
of Higham v. Ridgway, and of Rowe v. Welsh. 158, 166. See also Stead v. Hea-
Brenton, namely, that the proof, as to in- ton, 4 T. R. 669 ; Roe v. Rawlings, 7
terest, was on both sides, and neutrahzed East, 279 ; Marks v. Lahee, 3 Bing. n. c.
itself; but the objection was not particu- 408. The case of Chambers v. Bernas-
larlynoticedbyLittledale, J., before whom coni, 1 .Or. & Jer. 451, 1 Tyrwh. 335,
It was tried ; though the same learned which may seem opposed to these decis-
judge afterward intimated his opinion, by ions, turned on a different principle. That
observing, in reply to an objection simi- case involved the eifect of an under-
lar in principle, in Rowe v. Brenton, that sheriff's return, and the extent of the cir
"a man is not likely to charge himself, cumstauces wliich the sheriif's retun.
CHAP. VIII.] OP DECLARATIONS AGAINST INTEEEST. 177
§ 153. In order to render declarations against interest admissible,
it is not necessary that the declarant should have been competent, if
living, to testify to the facts contained in the declaration ; the
evidence being admitted on the broad ground, that the declaration
was against the interest of the party making it, in the nature of
a confession, and, on that account, so probably true as to justify
its reception.^ For the same reason it does not seem necessary
that the fact should have been stated on the personal knowledge
of the declarant.^ Neither is it material whether the same fact
is or is not provable by other witnesses who are still living.^
Whether their testimony, if produced, might be more satisfactory,
or its non-production, if attainable, might go to diminish the
weight of the declarations, are considerations for the jury, and do
not affect the rule of law.
§ 154. But where the evidence consists of entries made by
persons acting for others, in the capacity of agents, stewards, or
receivers, some proof of such agency is generally required, pre-
vious to their admission. The handwriting, after thirty years,
need not be proved.* In i-egard to the proof of official character,
a distinction has been taken between public and private offices, to
the effect, that where the office is public and must exist, it may
ought to include, and as to which it would decliiration of a deceased agent or officer,
be conclusive evidence. It seems to have made while he was paying over money to
been considered, that the return could his principal or superior, and desigpating
properly narrate only those tilings which the person from whom he received a par-
it was the officer's duty to do ; and, there- ticular sum entered by him in liis books,
fore, thougli evidence of the fact of the is admissible in evidence against that per-
arrest, it was held to be no evidence oi' son, qimre ; and see Fursdon v. Clogg, 10
the place where the arrest was made, M. & W. 572. The true distinction, more
though this was stated in the return. The recently taken, is this : that where the
learned counsel also endeavored to main- entry is admitted as being against the in-
cain the admissibility of the under-sheriff's terest of the party making it, it cari-ies
return, in proof of the place of arrest, as a with it the whole statement ; but that
written declaration, by a deceased person, where it .was made merely in the course
of a fact against his interest ; but the court of a man's duty, it does not go beyond the
held that it did not belong to that class of matters which it was his duty to enter,
cases. 1 Tyrwh. 333, per Bayley, B. Percival v. Nanson, 7 Eng. Law & Eq. R.
Afterwards, this judgment was .iffirmed 538, per Pollock, C. B, ; 7 Excli. Rep. 1,
in the Exchequer Chamber, 4 Tyrwh. s. c.
531; 1 Cr. Mees. & Ros. 347, 368; the i Doe i;. Eobson, 15 East, 32; Short k.
court 'being "all of opinion, that whatever Lee, 2 Jac. & W. 464, 489; Gleadow
effect may be due to an entry, made in the v. Atkin, 1 Cr. & Mees. 410 ; Middleton v.
course of any office, reporting facts neces- Melton, 10 B. & C. 317, 326 ; Bosworth
sary to the performance of a duty, the u. Crotchet, Ph. & Am. on Evid. 348, n.
statement of other circumstances, however ^ Crease v. Barrett, 1 Cr. Mees. & R.
naturally they may be thought to find a 919.
place in the narrative, is no proof of those ^ Middleton v. Melton, 16 B. & C. 327,
circumstances." See also Thompson v. per Parke, J. ; Barry v. Bebbington, 4 T.
Stevens, 2 Nott & McC. 493 ; Sherman v. R. 514.
'Vo.sby, 11 Johns. 70. Whether a verbal * Wynne v. Tyrwhitt, 4 B. & Aid. 376
178 LAW OF EVIDENCE. [pAltT II.
always be piesumed that a person who acts in it has been regu-
larly appointed ; but that where it ie merely private, some pre-
liminary evidence must be adduced of the existence of the office,
and of the appointment of tlie agent or incumbent.^ Where the
entry, by an agent, charges himself in the first instance, that fact
has been deemed sufficient proof of his agency;^ but -where it.
was made by one styling himself clerk to a steward, that alone was
considered not sufficient to prove the receipt, by either of them,
of the money therein mentioned.^ Yet where ancient books con-
tain strong internal evidence of their actually being receivers' or
agents' books, tliey may, on that ground alone, be submitted to
the jury.* Upon the general question, how far mere antiquity
in the entry will avail, as preliminary proof of the character of
the declarant, or party making the entry ; and how far the cir
cumstaiices, which are necessary to make a document evidence,
must be proved aliunde, and cannot be gathered from the docu-
ment itself, the law does not seem perfectly settled.'^ But where
the transaction is ancient, and the document charging the party
with the receipt of money is apparently genuine and fair, and
comes from tlie proper repository, it seems admissible, upon the
general principles already discussed in treating of this exception.**
§ 155. There is another class of entries admissible in evidence,
which sometimes has been regarded as anomalous, and at others
has been deemed to fall within the principle of the present excep-
tion to the general rule ; namely, the private books of a deceased
1 Short V. Lee, 2 Jac. & W. 464, 468. than a hundred years old. Davies v.
■■* Doe V. Stacy, 6 Car. & P. 139. Morgan, 1 Cr. & Jer. 587, 590, 593, per
2 De Rutzen v. Farr, 4 Ad. & El. 53. Ld. Lyndhurst, C. B. In another case,
And see Doe v. Wittcomb, 15 Jur. 778. which was a bill for tithes, against which
* Doe V. Ld. Geo. Thynne, 10 East, 206, a viodus was alleged in defence, a receipt
210. of more than fifty years old was oifered,
^ In one case, where the point in issue to prove a money payment therein men-
was the e.xistence of a custom for the ex- tioned to have been received for a pre-
dlusi'on of foreign cordwainers from ^ cer- scription rent in lien of tithes ; but it was
tain town ; an entry in the corporiltion held inadmissible, without also showing
books, signed by one acknowledging him- wlio the parties were, and in wliat cliarac-
self not 11 freeman, or free of tlie corpora- ter they stood. Manby v. Curtis, 1 Price,
tion, and promising to pay a fine assessed 223, per Thompson, C. B., Graham, B.,
on liim for breach of the custom; and and Richards, B. ; Wood,B.,dissentiente.
another en'.ry, signed by two others, stating ^ See Phil. & Am. on Evid. 331, n. (2) ;
that they had distrained and appraised 1 Phil. Evid. 316, n. (6), and cases tliere
nine pairs of shoes from another person, cited; Fenwick v. Read, 6 Madd. 8, per
for a similar offence ; were severally lield Sir J. Leach, Vice-Ch. ; Bertie i: Beau-
inadmissible, without previously offering mont, 2 Price, 307 ; Bp. of Meatii v. Mar-
Bome evidence to show by whom tlie en- quis of Winchester, 8 Bing. n. c. 183,
fries were subscribed, and in wliat situa- 203 ; [Doe v. Michael, 24 Eng. Law and
tion the several parties actually stood; Eq. K. 180.|
although the latest of the entries was more
CHAP. VIII.J OF DECLAEATIONS AGAINST INTEREST. 179
rector or vicar, or of an ecclesiastical corporation aggregate, con-
taining entries of the receipt of ecclesiastical dues, when admitted
in fa vol of their successors, or of parties claiming the same interest
as the maker of the entries. Sir Thomas Plumer, in a case before
him,i said : " It is admitted, that the entries of a rector or vicar
are evidence for or against his successors. It is too late to argue
upon that rule, or upon what gave rise to it ; whether it was the
eursus Scaccarii, the protection of the clergy, or the peculiar
nature of property in tithes. It is now the settled law of the land.
It is not to he presumed that a person, having a temporary interest
only, will insert a falsehood in his book from which he can derive no
advantage. Lord Kenyon has said, that the rule is an exception ;
and it is so ; for no other proprietor can make evidence for those
who claim under him, or for those who claim in the same right
and stand in the same predicament. But it has been the settled
law, as to tithes, as far back as our research can reach. We
must, therefore, set out from this as a datum ; and we must not
make comparisons between this and other corporations. No cor-
poration sole, except a rector or vicar, can make evidence for his
successor." But the strong presumption that a person, having
a temporary interest only, will not insert in his books a falsehood,
from which he can derive no advantage, which evidently and
justly had so much weight in the mind of that learned judge,
would seem to bring these books within the principle on which
entries, made cither in the course of duty, or against interest, are
admitted. And it has been accordingly remarked, by a writer
of the first authority in this branch of the law, that after it has
been determined that evidence may be admitted of receipts of
payment, entered in private books, by persons who are neither
obliged to keep such books, nor to account to others for the money
received, it does not seem any infringement of principle to admit
these books of rectors and vicars. For the entries cannot be used
by those who made them ; and there is no legal privity between
them and their successors. The strong leaning, on their part, in
favor of the church, is nothing more, in legal consideration, than
the leaning of every declarant in favor of his own interest, affect-
ing the weight of the evidence, but not its admissibility. General
observations have occasionally been made respecting these books,
I
1 Short 1'. Lee, 2 Jac. & \V. 177, 178
180 LAW OF EVIDENCE. [PAET U.
which may seem to authorize the admission of any kind of state-
ment contained in them. But such books are not admissible,
except wliere tlae entries contain receipts of money or ecclesias-
tical dues, or are otherwise apparently prejudicial to the interests
of the makers, in the manner in which entries are so considered
in analogous cases.^ And proof will be required, as in other
cases^ that the writer had authority to receive the money stated,
and is actually dead; and that the document came out of the
proper custody .^
iPhU. & Am. on Evid. 322, 323, and 2 Qresley on Evid. 223, 224 ; Carringtou
cases in notes (2) and (3) ; 1 Phil. Evid. v. Jones, 2 Sim. & Stu. 135, 140; Perigal
808, notes. (1), (2) ; Ward v. Pomfret, 5 v. Nicholson, 1 Wightw. 63.
Sim. 475.
CHAP. IX.] OP DYING DECLAEATI0N3. 181
CHAP TEE IX.
OF DYING DECLARATIONS.
f* § 166. Declarations made in immediate prospect of death admissible, on trials for
homicide.
157. The person must have been competent to testify ; but being an accomplice
will not exclude the declarations.
_ 158. The declarations must be made under the apprehension of almost immediate
death.
1 59. Can only be received to the extent the person might have testified, and must
be complete.
160. Competency of the evidence determined by court ; its weight by jury.
161. If reduced to writing, it must be produced if possible.
161a. But if resting in memory, witness may testify to substance of declaration.
161ft. The declaration may be by signs as weU as words.]
§ 156. A. fourth exception to the rule, rejecting hearsay evidence,
is allowed in the case of dying declarations. The general principle,
on which this species of evidence is admitted, was stated by Lord
Chief Baron Eyre to be this, — that they are declarations made in
extremity, when the party is at the point of death, and when
every hope of this world is gone ; when every motive to falsehood
is silenced, and the mind is induced, by the most powerful con-
siderations, to speak the truth. A situation so solemn and so
awful is considered by the law, as creating an obligation equal to
that which is imposed by a positive oath in' a court of justice.^
It was at one time held, by respectable authorities, that this
general principle warranted the admission of dying declarations
in all cases, civil and criminal ; but it is now well settled that
they arc admissible, as such, only in cases of homicide, " where
the death of the deceased is the subject of- the charge, and the
circmnstances of the death are the subject of the dying deelara-
1 Rex V. "Woodcock, 2 Leach's Cr. Cas. per dicere verum. Mascard. De Probat.
256, 567 ; Drumniond's case, 1 Leach's Conel, 1080. In the earliest reported case
Cr. Cas. 378. The rule of the Roman on this subject, the evidence was admitted
Civil Law w;is the same. Morti proxi- without objection, and apparently on this
mum, sive moribundum, non prajsumen- general ground. Rex v. Reason et al., 6
dum est mentiri, nee esse immemorem State Tr. 195, 201. The rule of the Coni-
Balutis ffiternaj; licet non prsesumatur sein- mon Law, under wliich this epidence is
VOL. I. 16
182
I/AW OF EVIDENCE.
[part it.
tions." ^ The reasons for thus restricting it may be, that the
credit is not in all cases due to the declarations of a dying person ;
for his body may have survived the powers of his mind ; or his
recollection, if his senses arc not impaired, may not be perfect ;
or, for the sake of ease, and to be rid of the importunity and
annoyance of those around him, he may say, or seem to say, what-
ever they may choose to suggest.^ These, or the like considera-
tions, have been regarded as counterbalancing the force of the
general principle above stated; leaving this exception to stand
only upon the ground of the public necessity of preserving the
lives of the community, by bringing manslayers to justice. For
it often happens, that there is no third person present to be .an
eyewitness to the fact ; and the usual witness in other cases t)f
felony, namely, the party injured, is himself destroyed.^ But
ill thus restricting the evidence of dying declarations to cases of
admitted, is held not to be repealed by,
nor inconsistent -with, those express pro-
visions of constitutional law, which secure
to the person accused of a crime, the right
to be confronted with the witnesses against
him. Anthony v. The State, 1 Meigs,
■265 ; Woodsides v. The State, 2 How.
Mia. R. 655; [Campbell v. State, 11 Geo..
353.1
■' Kex V. Mead, 2 B. & C. 605. In this
case the prisoner had been convicted of
perjury, and moved for a new trial, be-
cause convicted against the weight of evi-
dence ; after which he shot the prosecutor.
Upon showing cause against the rule, the
counsel for the prosecution offered the dy-
ing declarations of the prosecutor, relative
to the fact of perjury ; but the evidence
was adjudged inadmissible. The same
point was ruled by Bayley, J., in Rex
V. Hutchinson, who was indicted for ad-
ministering poison to a woman pregnant,
but not quick with child, in order to pro-
cure abortion. 2 B. & C. 608, note. This
doctrine was well considered, and ap-
proved in \VUson v. Boerem, 15 Johns.
286. In Rex v. Lloyd a al., 4 C. & P.
233, s'.ich iluclaratious were rejected on a
trial ti ir robbery. Upon an indictment for
the muider of A, by. poison, which was
also taken by B, who died in consequence,
it was held, that tlie dying declarations of
1? were admissible, tliough the prisoner
was not indicted for murdering her. Rex
V. Baker, 2 M. & Rob, 53; [State v. Cam-
eron, 2 Cliand. 172.1 [*Dailey v. N. Y. &
N. H. RaiUv. 32 Conn. In some of the
states, dying declarations have been re-
ceived in civil causes. Malaun v. Ammon,
I Grant's Casps (Penn.), 123. But it has
arisen from a misapprehension of the true
grounds upon which the declarations are
receivable as testimony. It is not received
upon any other ground than that of ne-
cessity, in order to prevent murder going
unpunished. What is said in the books
about the situation of the declarant, he
being virtually under the most solemn
sanction to speak the truth, is far from
presenting the true ground of the admis-
sion, for if that were all that is requisite
to render the declarations evidence, tlie
apprehension of death should have the
same effect, since it would place the de-
clarant under the same restraint as if the
apprehension were founded in fact. But
both must concur, both the fact and the
apprehension of being in extremis. And,
although it is not indispensable that there
should be no other evidence of the same
facts, the rule is, no doubt, based upon the
presumption, that in the majority of cases
there will be no other equally satisfactory
proof of the same facts. This presumption
and the consequent probability of the crime
going unpunished, is unquestionably the
chief ground of this exception in the Law
of Evidence. And the great reason why
it could not be received generally, as evi-
dence in all eases where the facts involved
should tlicrcafter come in question, seems
to be that it wants one of the most impor-
tant and indispensable elements of testi-
mony, that of an opportunity for cross-
examination by the party against whom
it is offered.]
^ Jackson v. Kniffen, 2 Johns. 81, 35,
per Livingston, J.
a 1 East, P. C. 353.
CHAP. IX.] OF DYING DECLAEATIONS. 183
trial for homicide of the declarant, it should oe observed, that
this applies only to declarations offered on the sole ground, that
they were made in extremis ; for where they constitute part of the
res gestae, or come within the exception of declarations against
interest, or the like, they are admissible as in other cases ; irre-
spective of the fact that the declarant was under apprehension of
death.i
§ 157. The persons, whose declarations are thus admitted, are
considered as standing in the same situation as if they were
sworn ; the danger of impending death being equivalent to the
sanction of an oath. It follows, therefore, that where the declar-
ant, 'if living, would have been incompetent to testify, by reason
of infamy, or the like, his dying declarations are inadmissible.^
And, as an oath derives the value of its sanction from the religious
sense of the party's accountability to his Maker, and the deep
impression that he is soon to render to Him the final account ;
wherever it appears that the declarant was incapable of this reli-
gious sense of accountability, whether from infidelity, imbecility
of mind, or tender age, the declarations are alike inadmissible.^
On the other hand, as the testimony of an accomplice is admis-
sible, against his fellows, the dying declarations of a particeps
criminis in an act, which resulted in his own death, are admissible
against one indicted for the same murder.* ,
§ 158. It is essential to the admissibility of these declarations,
and is a preliminary fact, to be proved by the party offering them
1 Supra, §§ 102, 108, 109, 110, 147, 148, petrators was rejected. See also Eegina
149. To some of these classes may be re- v. Hevvett, 1 Car. & Marshm. 534. fSee
ferred the cases of Wright v. Littler, 3 State w. Slielton, 2 Jones Law (N. C.) 360;
Burr. 1244 ; Aveson v. Ld. Kinnaird, 6 State v. Peace, 1 lb. 251 ; Oliver v. State,
East, 188 ; and some others. It was ouce 17 Ala. 587.]
thought that the dying declarations of the ^ Eex v. Drummond, 1 Leach's Cr
subscribing witness to a forged instrmnent Cas. 378.
were admissible to impeach it; but such ^ Kex ;;. Pike, 3 C, & P. 598; Ilegina
evidence is now rejected, for the reasons v. Perkins, 9 C. & P. 395 ; 2 Mood. Cr. C.
already stated. Supra, § 126. See Sto- 135 ; 2 Russell on Crimes, 688.
hart V. Dryden, 1 Mees. & W. 615, 627. * Tincklcr's case, 1 East, P. C. 354.
In Regina v. Megson et al, 9 C. & P. 418, [Where the declarations have been put in
420, the prisoners were tried on indict- evidence, and an attempt has been made
ments, one for the murder of Ann Stew-" by the other side to destroy the effect of
art, and the other for a rape upon her. such declarations by showing the bad char-
In the former case, her declarations were acter of the deceased, tlie prosecution, for
rejected, because not made in extremis; the purpose of corroborating the evidence,
and in the latter so much of them as may prove that the deceased made other
showed that a dreadful outrage had been declarations to the same purport, a tew
perpetrated upon her was received as part moments after he was struck, althougli il
of the outrage itself, being, in contempla- did not appear that he was then under the
tion of law, contemporaneous; but so apprehension of immediate death. State
mucli as related to the identity of the per- v. Thomason, 1 Jones, Law (N. C.) 274.]
184 LAW OP EVIDENCE. [PAET II.
in evidence, that they were made under a sense of impending death ;
but it is not necessary, that they should be stated, at the time, to
be so made. It is enough, if it satisfactorily appears, in any
mode, that they were made under* that sanction; whether it be
directly proved by the express language of the declarant, or be in-
ferred from his evident danger^ or the opinions of the medical
or other attendants, stated to him, or from his conduct, or other
circumstances of the case, all of which are resorted to, in order
to ascertain the state of the declarant's mind.^ The length of
time which elapsed between the declaration and the death of the
declarant furnishes no rule for the admission or rejection of
the evidence ; though, in the absence of better testimony, it may
serve as one of the exponents of the deceased's belief, that his
dissolution was or was not impending. It is the impression
of almost immediate dissolution, and not the rapid succession of
death, in point of fact, that renders the testimony admissible.^
Therefore, where it appears that the deceased, at the time of the
declaration, had any expectation or hope of recovery, however
slight it may have been, and though death actually ensued in an
hour afterwards, the declaration is inadmissible.^ On the other
hand, a belief that he will not recover is not in itself sufficient,
unless there be also the prospect of " almost immediate dissolu-
tion."*
>■ Rex V. Woodcock, 2 Leach's Cr. Cas. 9 ; Logan v. The State, Id. 24; [Oliver v.
567 ; Jolm's case, 1 East, P. C. 357, 358 ; State, 17 Ala. 587 ; Johnson v. State, lb.
Rex V. Bonner, 6 C. & P. 386 ; Eex v. 618.]
Van Butchell, Id. 631 ; Eex v. Mosley, 1 ^ go ^uled in Welborn's case, 1 East,
Moody's Cr. Cas. 97 ; Rex v. Spilsbury, 7 P. C. 358, 359 ; Rex v. Christie, 2 Russ.
C. & P. 187, per Coleridge, J. ; Reg. v. on Crimes, 685 ; Rex v. Hayward, 6 C. &
Perkins, 2 Mood. Cr. Cas. 135 ; Mont- P. 157, 160 ; Rex v. Crockett, 4 C. & P.
gomery v. The State, 11 Ohio, 424; Dunn 544; Rex v. Pagent, 7 C. & P. 238. [The
V. The State, 2 Pike, 229 ; Commonwealth declarations made by one hi his last ill-
V. M'Pike, 3 Cush. 181; Reg. u. Mooney, ness, who said he should die, but whom
5 Cox, C. C. 318. the physician had just told he might re-
'^ In Woodcock's case, 2 Leach's Cr. cover, are not admissible as dying declara-
Cas. 563, the declarations were made tions. By Harris, J. People v. Robinson,
tbrty-eight hours before death ; in Tinck- 2 Parker, Cr. E. 235. See People v. Knick-
ler's case, 1 East, P. C. 354, some of them erbocker, 1 lb. 302.]
were made ten days before death ; and in * Such was the language of Hullock
Kox ;;. Mosley, 1 Mood. Cr. Cas. 97, they B., in Rex v. Van Butchell, 3 C. & P. 629]
were ni.ide eleven days before death ; and 631. See ace. Woodcock's case, 2 Leach's
were all received. In this last instance, it Cr. Cas. 567, per Ld. C. B. Eyre; Rex u.
uppeared that the surgeon did not think Bonner, 6 C. & P. 386; Commonwealth v.
I he ciise hopeless, and told the patient so; King, 2 Virg. Cases, 78; Commonwealth
but that the patient thought otherwise, v. Gibson, Id. Ill* Commonwealth o.
See also Regina v. Howell, 1 Denis. Cr. , Vass, 3 Leigh, E. 786 ; The State v.
Cas. 1. In Eex v. Bonner, 6 C. & P. 386, Poll, 1 Hawks, 442; Regina v. Perkins, 9
they were made three days before death. C. & P. 395; 2 Mood. Cr. Cas. 135, s. c;
And sec Smith v. The State, 9 Humph. Rex v. Ashton, 2 Lewin's Cr. Cas. 147.
CHAP. IX.J OP DYING DECLARATIONS. 185
§ 159. The declarations of the deceased are admissible only to
those things, to which he would have been eompetenf^o testify, if sworn
in the cause. They naust, therefore, in general, speak to facts
only, and not to mere matters of opinion ; and must be confined
to what is relevant to the issue. But the right to offer them in
evidence is not restricted to the side of the prosecutor ; they are
equally admissible in favor of the party charged with the death.^
It is not necessary, however, that the examination of the deceased
should be conducted after the manner of interrogating a witness
in the cause ; though any departure from this mode may affect
the validity and credibility of the declarations. Therefore it is
no objection to their admissibility, that they were made in answer
to leading questions, or obtained by pressing and earnest solicita-
tion.^ But whatever the statement may be, it must be complete
in itself; for, if the declarations appear to have been intended by
the dying man to be connected with and qualified by other state-
ments, which he is prevented by any cause from making, they
will not be received.^
§ 160. The circumstances under which the declarations were
made are to be shown to the judge ; it being his province, and not
that of the jury, to determine whether they are admissible. In
WoodcocFs case, the whole subject seems to have been left to the
jury, under the direction of the court, as a mixed question of law
and fact ; but subsequently it has always been held a question
exclusively for the consideration of the court; being placed on
the same ground with the preliminary proof of documents, and
of the competency of witnesses, which is always addressed to the
court.* But after the evidence is admitted, its credibility is
entirely within the province of the jury, who of course are at
1 Rex v. Scaife, 1 Mood. & Eo. 551; 2 v. Hucks, 1 Stark. R. 521, 523, to have
Lewin's Cr. Cas. 150, s. c. been so resolved by all the judges, in a
2 ]k'X i\ Fagent, 7 C. & P. 238 ; Com- ease proposed to tliem. Welborn's case,
monwealth r. Vass, 3 Leigh, R. 786; Rex 1 East, P. C. 300; John's imwv, Id. 358;
II. Reason rf al., 1 Stra. 4\)\); Rex v. Wood- Rex v. Van Butchell, 3 C. & P. G'i'J ; Rex
cock, 2 Leaclr's Cr. Cas. 563 ; [Oliver v. v. Bonner, 6 C. & P. 886 ; Rex v. Spils-
otate, 17 Ala. 587.] bury, 7 C. & P. 187, 190; Tlie State v.
8 3 Leigh, R. 787. [Where the de- Poll, 1 Hawks, 444 ; Commonwealth v.
ceased being asked " who shot him," re- Murray, 2 Ashm. 41 ; Commonwealth
plied "the prisoi.er," the declaration is y. WilUams, Id. 69; Hill's cabo, '2 Gratt.
complete, and cannot he rejected because, 594; McDaniel v. The Slate, 8 Sm. & M.
from weakness and exhaustion, he was 401. Where tlie dying deponent declared
unable to answer anotlier question pro- that the statement was "as i;'gh riglit ag
pounded to him immediately afterwards, he could recollect," it was licld nihiiissible.
McLean v. State, 10 Ala. 072.] Tlie State v. Ferguson, 2 Ilill, S. Car. R.
* Said, per Ld. EUenborough, in Rex 619 ; [State v Howard, 32 Vt. 380.]
16*
186 LAW OP EVIDENCE. ' [PAET II
liberty to -weigli all the circumstances under which the declara
tions were made,- including those already proved to the judge,
and to give the testimony only such credit as, upon the whole,
they may think it deserves.^
§ 161. If the statement of the deceased was committed to writing
and signed hy Mm, at the time it was made, it has been held
essential that the writing should be produced, if existing ; and
that neither a copy, nor parol evidence of the declarations, could
be admitted to supply the omission.^ Biit where the declarations
had been repeated at different times, at one of which they were
made under oath, and informally reduced to writing by a witness,
and at the others they were not, it was held that the latter might
be proved by parol, if the other could not be produced.^ If the
deposition of the deceased has been taken under any of the stat-
Mb^A on that subject, and is inadmissible, as such, for want of
compliance with some of the legal formalities, it seems it may
still be treated as a dying declaration, if' made in extremist
§ 161a. It has been held that the substance of the declarations
may be given in evidence, if the witness is not able to state the
precise language ixsed.^ And we have already seen that it is no
objection to tlieir admissibility, that they were obtained in answer
to questions asked by the bystanders, nor that the questions
themselves were leading questions ; and that, if it appear that the
declarations were intended by the dying person to be connected
with and qualified by other statements, material to the complete-
ness of the narrative, and that this was prevented by interruption
or death, so that the narrative was left incomplete and partial, the
evidence is inadmissible.^
1 2 stark. Evid. 263 ; Phil. & Am. on » Rex v. Gay, 7 C. & P. 230 ; Trowter's
Evid. 304 ; Ross v. Gould, 5 Greenl. 204 ; case, P. 8 Geo. I. B. R. 12 Vin. Abr. 118,
Vass's case, 3 Leigh, R. 794. See also 119; Leach jj. Simpson e(«i., 1 Law & Eq.
the remarks of Mr. Evans, 2 Poth. on R. 58; 5 M. &W. 309; 7 Dowl. P. C. 13;
Obllg. 2.5B (294), App. No. 16, who thinks 3 Jur. 654, s. c; [State u. Cameron, 2
that the jury should be directed, previous Chand. 172.1
to considering the effect of the evidence, ' Rex v. Reason et al., 1 Str. 499, 500.
to determine, — 1st, Whether the deceased * Rex v. Woodcock, 2 Leacli, Cr. Gas.
was really in such circumstances, or used 563 ; Rex v. Callaghan, MeNally's Evid.
such expressions, from which the appre- 885.
hension in question was inferred; — 2d, ^ Montgomery v. The State, 11 Ohio,
Whether the inference deduced from such 424 ; Ward v. The State, G Blackf 101.
circumstances or expressions is correct; — And see infra, § 165; [Tlie substance of
3d, Whether the deceased did make the the declarations is suiBcient, and it may
declarations alleged against the accused ; be given, if need be, by an interpreter.
— and 4th, Whether tliose declarations are Starkey v. People, 17 111. 17.]
to be admitted, as sincere and accurate. ° Vass's case, 3 Leigh, R. 786 ; supra,
Trant's case, MeNally's Evid. 385. § 159.
CHAP. IX.] OP DYING DECIiARATIONS. 187
§ 161b. The testimony hero spoken of may be given as well
br/ signs as by words. Thus, where one, being at ^the point of
death and couscious of her situation, but unable to articulate by
reason of the wounds she had received, was asked to say whether
the prisoner was the person who had inflicted the wounds, and, if
so, to squeeze the hand of the interrogator, and she thereupon
squeezed his hand, it was held that this evidence was admissible
and proper for the consideration of the jury.^
§ 162. Though these declarations, when deliberately made,
under a solemn and religious sense of impending dissolution,
and concerning circumstances, in respect of which the deceased
was not likely to have been mistaken, are entitled to great weiglit,
if precisely identified ; yet it is always to be recollected, that the
accused has not the power of cross-examination, — a power quite
as essential to the eliciting of all the truth, as the obligation of an
oath can be ; and that where the witness has not a deep and
strong sense of accountability to liis Maker, and an enlightened
conscience, the passion of anger and feelings of revenge may, as
they have not unfrequently been found to do, affect the truth and
accuracy of his statements ; especially as the salutary and re-
straining fear of punishment for perjury is in such cases with-
drawn. And it is further to be considered, that the particulars of
1 Commonwealth d. Casey, 6 Monthly put to her, it is to be observed that all
Law Eep. p. 203; [11 Gush. 417, 421. words are signs; some are made by the
The entire opinion of the court, by Shaw, mouth, and others by the hands. There
C.J., is as follows; "We appreciate the was a civil case tried in Berkshire County,
importance of the question offered for our where a suit was brought against a rail-
decision. Where a person has been in- road company, and the question was,
jured in sucli a way, that his testimony whether a female who was run over sur-
oannot be had in the customary way, the vived the accident for any length of time,
usual and ordinary rules of evidence must. She was unable to speak, but was asked,
from the necessity of the case, be de- if she had consciousness, to press their
parted from. The point fhst to be estab- hands, and the testimony was admitted,
Ushed is, that the person whose dying If the injured party had but the action of
declarations are sought to be admitted a single finger, and with that finger pointed
was conscious that he was near his end at to the words " yes " and " no," in answer to
the time of making them ; for this is sup- questions, in such a manner as to render
posed to create a solemnity equivalent to it probable that she understood, and was
an oath. If this fact be satisfactorily es- at the same time conscious that she could
tablished, and if the declarations are made not recover, then it is admissible evidence,
freely and voluntarily, and- without coer- It is, therefore, the opinion of the court,
cion, they may be admitted as competent that the circumstances under wliicli the
evidence to go to the jury. But, after responses were given by Mrs. Taylor to
they are admitted, the facts of the declara- the q-uestions which were put her war-
tions and their credibility are still for the rant that the evidence shall be admitted,
judgment of tlie jury. but it is for the jury to judge of its credi-
" In regard to the matter before the bility, and of titie effect which shall be
court, and the admissibility of the signs given to it." '
by Mi-s. Taylor, ip reply to the questions
188 LAW OP EVIDENCE. [PART II.
the violence, to wliicli the deceased has spoken, were in general
likely to have occurred under circumstances of confusion and
surprise, calculated to prevent their being accurately observed;
and leading both to mistakes as to the identity of persons, and
to the omission of facts essentially important to the completeness
and truth of the narrative.^
1 Phil. & Am. on Eyid. 305, 306 ; 1 in the use of this kind of eTidence, in 2
PhU. Evid. 292 ; 2 Johns. 35, 36, per Liv- Poth. Obi. 255 (293) ; 2 Stark. Evid. 263.
ingston, J. See also Mr. Evans's observa- See also Eex v. Ashton, 2 Lewin's Cr.
tions on*the great caution to be observed Cas. 147, per Alderson, B.
CHAP. X.] OP WITNESSES SUBSEQUENTLY DISQUALIFIED. 189
CHAPTEE X.
OF THE TESTIMONY OP WITNESSES SUBSEQUENTLY DEAD, ABSENT, OR
DISQUALIFIED.
I* §163. Admissibility of evidence of deceased witness at a former trial.
164. Not requisite all the parties to the suits should have been the same, but that
the party should have opportunity for cross-examination.
165. The substaqce of what the witness testified, both on direct and cross-exami-
nation, must be proved.
166. Any witness may prove it, from memory and his notes taken at the time.
167. Cases where the witness has become incompetent from subsequently acquired
interest.
168. It would seem, in such cases, the testimony given at a former trial should be
received. Qualification of the rule stated by the author.]
§ 163. In Hxq fifth class of exceptions to the rule rejecting hear-
say evidence may be included the testimony of deceased witnesses,
given in a former action, between the same parties; though this
miglit, perhaps, with equal propriety, be considered under the
rule itself. This testimony may have been given either orally, in
court, or in written depositions taken out of court. The latter
will be more particularly considered hereafter, among the instru-
ments of evidence. But at present we shall state some principles
applicable to the testimony, however given. The chief reasons for
the exclusion of hearsay evidence are the want of the sanction of
an oath, and of any opportunity to cross-examine the witness.
But where the testimony was given under oath, in a judicial pro-
ceeding, in which the adverse litigant was a party, and where he
had the power to cross-examine, and was legally called upon so to
do, the great and ordinary test of truth bemg no longer wanting,
the testimony so given is admitted, after the decease of the wit-
ness, in any subsequent suit between the same parties.^ It is also
received, if the witness, though not dead, is out of the jurisdic-
tion, or cannot be found after diligent search, or is insane, or sick,
1 Bull. N. P. 239, 242 ; Mayor of Don- Beach, 5 Verm. 172 ; Lightner v. Wike, 4
coster V. Day, 3 Taunt. .262; Glass ». S. &K. 203.
190
LAW OP EVIDENCE.
[part U.
and unable to testify, or has been summoned, but appears to have
been kept away by the adverse party .^ But testimony thus offered
is open to all the objections which might be taken, if the witness
were personally present.^ And if the witness gave a written depo-
sition in the cause, but afterwards testified orally in court, parol
evidence may be given of what he testified vivd voce, notwithstand-
ing the existence of the deposition.^
§ 164. The admissibility of this evidence seems to turn rather
on the right to cross-examine, than upon the precise nominal iden-
tity of all the parties. Therefore, where the witness testified in
a suit, in which A and several others were plaintiffs, against B
1 BuU. N. P. 239, 243 ; 1 Stark. Evid.
264; 12 Vin. Abr. 107, A. b. 31; Godb.
326 ; Eex v. Eriswell, 3 T. R. 707, 721,
per Ld. ICenyon ; [Long v. Davis, 18 Ala.
801; Covanhovan v. Hart, 21 Penn. (9
Harris), 495.] As to the effect of interest
subsequently acquired, see infra, § 107.
Upon the question whether this kind of
evidence is admissible in any other con-
tingency except the death of the witness,
there is some discrepancy among the
American authorities. It has been re-
fused, wliere the witness had subsequently
become interested, but was Mving and
within reach ; Chess v. Chess, 17 S. & R.
409 ; Irwin v. Reed, 4 Yates, 512 : where
he was not to be found within the juris-
diction, but was reported to have gone to^
an adjoining state ; Wilber v. Selden, 6
Cowan, 162: where, since the former
trial, he had become incompetent by being
convicted of an infamous crime ; Le Ba-
ron V, Crombie, 14 Mass. 234 : where,
though present, he liad forgotten the facts
to wliich he had formerly testified; Dray-
ton V. Wells, 1 Nott & McCord, 409: and
where he has proved to have left the state,
after being summoned to attend at the
trial; Kinu's case, 5 Rand. 701. In this
last case it was held, that this sort of testi-
mony was not admissible in any criminal
case whatever. [See also Brogy v. Com-
raonwoaltli, 10 Gratt. 722.] In the cases
of Le Baron v. Crombie, Wilber v. Sel-
den, and also in Crary v. Sprague, 12
Wend. 41, it was said, that such testimony
was not admissible in any case, except
where the witness was shown to be dead ;
but this point was not in either of those
oases directly in judgment; and in some
of them it does not appear to have been
fully considered. [See also Weeks v.
Lowerre, 8 Barb. 530.] On the other
hand, in Drayton v. Wells, it was held by
Cheves, J., to be admissible in four cases i
1st, where the witn,ess is dead; 2d, in-
sane ; Sd, beyond seas ; and 4th, where
he has been kept away by contrivance of
the other party. See also Moore v. Pear-
son, 6 Watts & Serg. 51. In Magill v.
Kauffman, 4 S. & R. 317, and in Carpen-
ter V. Groff, 5 S. & E. 162, it was admitted
on proof that the witness had removed
from Pennsylvania to Oliio, — it was also
admitted, where the witness was unable to
testify, by reason of sickness, in Miller o.
Russell, 7 Martin, 266, N. s. ; and even
where he, being a sheriff, was absent on
ofiicial duty. Noble v. Martin, 7 Martin,
282, jf. s. But if it appears that the wit-
ness was not fully examined at tlie former
trial, his testimony cannot be given in evi-
dence. Noble V. McClintock, 6 Watts &
Serg. 58. If the witness is gone, no one
knows whither, and his place of abode
cannot be ascertained by diligent inquiry,
the case can hardly be distinguished in
principle from that of his death; and it
would seem that his former testimony
ought to he admitted. If he is merely
out of the jurisdiction, but the place is
known, and his testimony can be taken
under a commission, it is a proper case for
tlie judge to decide, in his discretion, and
upon all the circumstances, whetlier tlie
purposes of justice will be best served by
issuing such commission, or by admitting
the proof of what he formerly testified.
2 Wright V. Tatham, 2 Ad. & El. 3, 21.
Thus, where the witness at the former
trial was called by the defendant, but was
interested on the side of the plaintiff, and
the latter, at the second trial, offers to
prove his former testimony, tlie defendant
may object to the competency of the evi-
dence, on the ground of interest. Crary
u. Sprague, 12 Wend. 41.
8 Tod V. E. of Winchelsea, 3 0. & P
387.
CHAP. X.] OP WITNESSES SUBSEQUENTLY DISQUALIFIED. 191
alone, his testimony was held admissible, after his death, in a
subsequent suit, relating to the same matter, brought by B against
A alone. 1 And though the two trials were not between the
parties, yet if the second trial is between those who represent
the parties to the first, by privity in blood, in law, or in estate, the
evidence is admissible. And if, in a dispute respecting lands, any
fact comes directly in issue, the testimony given to that fact is
admissible to prove the same point or fact in another action be-
tween the same parties or their privies, though the last suit be for
other lands.^ The principle on which, chiefly this evidence is ad-
mitted, namely, the riglit of cross-examination, requires that its
admission be carefully restricted to the extent of that right ; and
that where the witness incidentally stated matter, as to which the
party was not permitted by the law of trials to cross-examine him,
his statement as to that matter ought not afterwards to be re-
ceived in evidence against such party. Where, therefore, the
point in issue in both actions was not the same, the issue in the
former action having been upon a common or free fishery, and, in
the latter, it being upon a several fishery, evidence of what a wit-
ness, since deceased, swore upon the former trial, was held inad-
missible.^
§ 165. It was formerly held, that the person called to prove
1 Wright V. Tatham, 1 Ad. & El. 3. Blackf. 10; Harper v. Burrow, 6 Ired. 30,
But see Matthews v. Colburn, 1 Strob. 258. Clealand v. Huey, 18 Ala. 343.]
[So it is admissible in a subsequent action, ^ Melvin v. Wliiting, 7 Pick. 79. See
in which the same matter is in issue, be- also Jackson v. Wincliester, 4 Hall. 206;
tween persons who were parties to the Epliraims v. Murdoch, 7 Blackf. 10.
former action, although other persons, not [Where there was .i preliminary e.xamina-
now before the court, were also parties to tion before a magistrate of a defendant
the former action. I'hiladelphia, W. & B. charged with a crime, and a witness, since
R. R. Co. V. Howard, 13 How. tJ. S. 307. deceased, there testified for the govern-
But wliere in a suit for land against two ment and was cross-examined by defend-
persons jointly, certain facts were admitted ant's counsel, .and subsequently an in-
and agreed on by all the parties, in a sub- dictmcnt was found, it was held, on the
sequent suit for the same land between the trial of the indictment, that the evidence
same defendants, this admission and agree- of what the witness testified to at the
ment, though in writing, is not evidence, preliminary examination ^^■ns ailmissible.
Prye v. Gragg, 35 Maine, 29.] United States v. Jlacorab, 5 McLean, 286;
2 Oiitram v. Morewood, 3 East, 346, Davis v. State, 17 Ala. 354 ; Kendrick v.
354, 355, per Ld. Ellenborough ; Peake's State, 10 Humph. 479. The testimony
Evid. (3d. ed.) p. 37 ; Bull. N. P. 232; given before arbitrators, by a witness.
Doe V. Derby, 1 Ad. & El. 783 ; Doe since deceased, is admissible in evidence
V. Foster, Id. 791, note; Lewis v. Cler- in a subsequent suit between the same
ges, 3 Bac. Abr. 614 ; Shelton v. Bar- parties on the same subject-matter, al-
bour, 2 Wash. 64; Rushtbrd v. Countess though the award has since been set aside,
of Pembroke, Hard. 472; Jackson v. Law- provided the submission was good, and the
son, 15 Johns. 544; Jackson v. Bailey, 2 arbitrators had jm-isdiction. McAdaras
Johns. 17; Powell v. Waters, 17 Johns, v. Stilwell, 13 Pemi. State li. 90. See
176. See also Ephraims c/. Murdoch, 7 Elliott r. Heath. 14 N. H. 131.1
192
LAW OP EVIDENCE.
[PAET II.
what a deceased witness testified on a former trial, must be
required to repeat his precise words, and tliat testimony merely
to the effect of them was inadmissible.^ But this strictness is not
1 4 T. R. 290, said, per Ld. Kenyon, to
hare been so " agreed on all hands," upon
an offer to prove what Ld. Palmerston had
testified. So held, also, by Washington,
J., in United States v. Wood, 3 Wash.
440; 1 PhU. Evid. 200 [215], 3d. ed. ;
Foster v. Shaw, 7 Serg. & E. 163, per
Duncan, J. ; Wilber v. Seldon, 6 Cowen,
165 ; Ephraims v. Murdoch, 7 Blackf. 10.
The same rule is applied to the proof of
dying declarations. Montgomery v. Ohio,
11 Ohio R. 421. In New Jersey it has
been held, that if a witness testifies that
he has a distinct recollection, independent
of his notes, of the fact that the deceased
was sworn as a witness at the former trial,
of what he was produced to prove, and of
the substance of what he then stated ; he
may rely on his notes for the language, if
he beUeves them to be correct. Sloan v.
Somers, 1 Spencer, E. 66. In Massachu-
setts, in The Commonwealth v. Richards,
18 1*1015;. 434, the witnesses did not state
the precise words used by the deceased
witness, but only the substance of them,
from recollection, aided by notes taken at
the time ; aad one of the witnesses testi-
fied that he was confident that he stated
substantives and verbs correctly, but was
not certain as to the prepositions and con-
junctions. Yet the court held this insuf-
ficient, and required that the testimony
of the deceased witness be stated m his
own language, ipsissimis vet-bis. Tfte point
was afterwards raised in Warren v. Nich-
ols, 6 Met. 261 ; where the witness stated
tliat he could give the substance of the
testimony of the deceased witness, but
not the precise language ; and the court
held it insufficient; Hubbard, J., dissenti-
ente. The rule, however, as laid down by
the court in the latter case, seems to
recognize a distinction between giving the
substance of the deceased witness's testi-
mony, and the substance of the language ;
and to require only that his language be
stated substantially, and in all material
particulars, and not ipsissiynis verbis. The
learned chief justice stated the doctrine
as follows : " The rule upon wliich evi-
dence may be given of what a deceased
witness testified on a former trial between
the same parties, in a case where the
same question was in issue, seems now
well established in this commonwealth by
authorities. It was fully considered in
the case of Commonwealth v. Richards,
18 Pick. 434. The principle on which
this rule rests was accurately stated, the
cases in support of it were referred to,
and with the, decision of which we see no
cause to be dissatisfied. The general rule
is, that one person cannot be heard to
testify as to what another person has de-
clared, in relation to a fact within his
knowledge, and bearing upon the issue.
It is the familiar rule which excludes
hearsay. The reasons are obvious, and
they are two ; First, because the aver-
ment of fact does not come to the jury
sanctioned by the oath of the party on
whose knowledge it is supposed to rest;
and secondly, because the party upon
whose interests it is brought to bear has
no opportunity to cross-examine him on
whose supposed knowledge and veracity
the truth of the fact depends. Now the
rule, which admits evidence of what
another said on a former trial, must efiec-
tually exclude both of these reasons. It
must have been testimony; that is, the
affirmation of some matter of fact, under
oath ; it must have been in a suit between
the same parties in interest, so as to make
it sure that the party, against whom it is
now offered, had an opportunity to cross-
examine ; and it must have been upon the
same subject-matter, to show that his at-
tention was drawn to points now deemed
important. It must be the same testi-
mony whicli the former witness gave, be-
cause it comes to the jury under the
sanction of his oath, and the jury are to
weigh the testimony and judge of it, as
he gave it. The witness, therefore, must
be able to state the language in which the
testimony was given, .substantially and in
all material particulars, because that is the
vehicle by which the testimony of the
witness is transmitted, of which the jury
are to judge. If it were otherwise, the
statement of the witness, wliich is offered,
would not be of the testimony of the
former witness ; that is, of the ideas con-
veyed by the former witness, in the lan-
guage in which he embodied them ; but it
would be a statement of the present wit-
ness's understanding and comprehension
of those ideas, expressed in language of
his own. Those ideas may have been mis-
understood, modified, perverted, or col-
ored, by passing through the mind of the
witness, by his knowledge or ignorance of
the subject, or the language in which the
testimony was given, or by his own preju-
dices, predilections, or habits of thought
or reasoning. To illustrate this distinc-
tion, as we understand it to be fixed bv
CHAP. X.J OF WITNESSES SUBSEQUENTLY DISQUALIFJED.
193
now insisted upon, in proof of the crime of perjury ; ^ and it has
been well remarked, that to insist upon it in other cases, goes in
effect to exclude this sort of evidence altogether, or to admit it
only where, in most cases, the particularity and minuteness of the
witness's narrative, and the exactness with which he undertakes to
repeat every word of the deceased's testimony, ought to excite
just doubts of his own honesty, and of the truth of his evidence.
It, seems, therefore, to be generally considered sufficient, if the
witness is able to state the substance of what was sworn on the
former trial.* But he must state, in substance, the whole of what
the cases : If a witness, remarkaWe for
his knowledge of law, and his intelligence
on all other subjects, of great quickness
of apprehension and power of discrimina-
tion, should declare that he could give the
substance and effect of a former witness's
testimony, but could' not recollect his lan-
guage, we suppose he would be excluded
by the rule. .But if one of those remark-
able men should l^appen to have been
present, of great stolidity of mind upon
most subjects, but of extraordinary te-
nacity of memory for language, and who
would say that he recollected and could
repeat all the words uttered by the wit-
ness ; although it should be very manifest
that he liimself did not understand them,
yet his testimony would be admissible.
The witness called to prove former testi-
mony must be able to satisfy one other
condition, namely, that he is able to state
all that the witness testified on the former
trial, as well upon the direct as the cross-
examination. The reason is obvious. One
part of his statement may be qualified,
softened, or colored by another. And it
would be of no avail to the party against
whom the witness is called to state the
testimony of the former witness, that he
has had the right and opportunity to cross-
examine that former witness, with a view
of diminishing the weight or impairing
the force of that testimony against him,
if the whole and entire result of that
cross-examination does not accompany the
testimony. It may, perhaps, be said, that,
with these restrictions, the rule is of little
value. It is no doubt true, that in most
cases of complicated and extended testi-
mony, the loss of evidence, by the decease
of a witness, cannot be avoided. But the
same result follows, in most cases, from
the decease of a witness whose testimony
has not been preserved in some of the
modes provided by law. But there are
gome cases in which the rule can be use-
fully applied, as in case of testimony em-
braced in a few words, — such as proof of
demand or notice, on notes or bills, —
cases in which large amounts are often
involved. If it can be used in a few
cases, consistently with the true and sound
principles of the law of evidence, there is
no reason for rejecting it altogether. At
the same time, care should be taken so to
apply and restrain it, that it may not,
under a plea of necessity, and in order to
avoid hard cases, be so used as to violate
those principles. It is to be recollected,
that it is an exception to the general rule
of evidence, supposed to be extremely
important and necessary ; and unless a
case is brought fully within the reasons of
such exception, the general rule must pre-
vail." See 6 Met. 264-266. See also
Marsh v. Jones, 6 Washb. 378.
1 Eex V. Kowley, 1 Mood. Cr. Cas.
111.
2 See Cornell v. Green, 10 Serg. & K.
14, 16, where tins point is briefly, but
powerfully discussed, by Mr. Justice Gib-
son. See also Miles v. O'Hara, 4 Binn.
108 ; Caton v. Lenox, 5 Randolph, 31, 36 ;
Eex -v. Rowley, 1 Mood. Cr. C. Ill;
Chess V. Chess, 17 Serg. & R. 409, 411,
412 ; Jackson v. Bailey, 2 Johns. 17 ; 2
Russ. on Crimes, 638 [683], (3d Am. ed.);
Sloan V. Somers, 1 Spencer's R. 66 ; Gar-
rett V. Johnson, 11 G. & J. 28; Canney'a
case, 9 Law Reporter, 408 ; The State v.
Hooker, 2 Washb. 658; Gildersleeve v.
Caraway, 10 Ala. R. 260 ; Gould v. Craw-
ford, 2 Barr. 89 ; Wagers v. Dickey, 17
Ohio R. 439 ; [United States v. Macomb,
5 McLean, 286; Emery v. Fowler, 89
Maine, 326 ; Young v. Dearborn, 2 Fos-
ter, 372; WilUams v. Willard, 23 Vt. 369;
Van Buren v. Cockburn, 14 Barb. 118;
Jones V. Wood, 16 Penn. State R. 25;
Riggins V. Brown, 12 Geo. 271; Walker
V. Walker, 14 lb. 242; Davis v. State,
17 Ala. 354; Clealand v. Huey, 18 lb. 343;
Kendrick v. State, 10 Humph. 479; supra,
§ 161a.]
17
194
LAW OF EVIDENCE.
[PAET n.
was said on the particular subject which he is called to prove. If
he can state only what was said on that subject by the deceased,
on Ills examination in chief, without also giving the substance
of what he said upon it in his cross-examination, it is inad-
missible.^
§ 166. What the deceased witness testified may be proved by
any person, who will swear from his own memory ; or by notes
taken by any person, who will swear to their accuracy ; ^ or,
perhaps, from the necessity of the case, by the judge's own notes,
where both actions are tried before the same judge ; for in such
case, it seems the judge, from his position, as well from other
considerations, cannot be a witness.^ But, except in this case of
necessity, if it be admitted as such, the better opinion is, that the
judge's notes are not legal evidence of what a witness testified
before him ; for they are no part of the record, nor is it his official
duty to take them, nor have they the sanction of his oath to their
accurany or completeness.* But in chancery, when a new trial
1 Wolf V. Wyeth, 11 Serg. & K. 149 ;
Gildersleeve v. Caraway, 10 Ala. R. 260.
[See Rhine v. Robinson, 27 Penn. . State
R. 30.]
" Mayor of Doncaster v. Day, 3 Taunt.
267 ; Cliess v. Chess, 17 Serg. & R. 409.
The witness, as has been stated in a pre-
ceding note, must be able to testify, from
his recollection alone, that deceased was
sworn as a witness, the matter or thing
which he was called to prove, and the
substance of what he stated ; after wliich
his notes may be admitted. Sloan v.
Somers, 1 Spencer, N. J. R. 66 ; sum-a, §
165, note (2).
8 Glassford on Eyid. 602; Tait on
Evid. 432; Regina v. Garard, 8 C. & P.
595 ; infra, § 249.
* Miles V. O'Hara, 4 Binn. 108; Foster
V. Shaw, 7 Serg. cSt R. 156; Ex parte
Learmouth, 6 Madd. R. 113; Reg. w.
Plummer, 8 Jur. 922, per Gurney, B. ;
Livingston v. Cox, 8 Watts & Serg. 61.
Courts expressly disclaim any power to
compel the production of a judge's notes.
Scougull V. Campbell, 1 Chitty, R. 283;
Graham v. Bowliam, Id. 284, note. And
if an application is made to amend a ver-
dict by the judge's notes, it can be made
only to the judge himself, before wliom
the trial was had. Ibid. 2 Tidd's Pr. 770,
933. Wliere a party, on a new trial being
granted, procured, at great expense, copies
of a shovUiand writer's notes of the evi-
dence given at the former trial, for tlie
amount of which lie claimed allowance in
tlie final taxation of costs ; the claim was
disallowed, except for so much as would
have been the expense of waiting on the
judge, or his clerk, for a copy of his notes ;
on the ground that the latter would have
sufficed. Crease v. Barrett, 1 Tyrw. &
Grang. 112. But this decision is not con-
ceived to affect the question, wliether tlie
judges's notes would have been admissible
ijefore another judge, if objected to. In
Regina v. Bird, 5 Cox, C. C. 11 ; 2 Eng.
Law and Eq. Rep. 444, the notes of the
judge, before whom a former indictment
had been tried, were admitted without ob-
jection, for the purpose of showing what
beatings were proved at tliat trial, in order
to support the plea of autrefois acquit. In
Neio Brunswick, a judge's notes liave been
held admissible, though objected to, on
the ground that they were taken under
the sanction of an oath, and that such lias
been the practice. Doe v. Murray, 1 Al
Ian, 216. I3ut in a recent case in England,
on a trial for perjury, the notes of the
judge, before whom the false evidence
was given, being offered in proof of tliat
part of tlie case, Talfourd, J., refused to
admit them ; observing, that " a judge's
notes stood in no other position than any-
body else's notes. They could only be
used to refresh the memory of the party
taking tliem. It was no doubt unusual to
produce the judge as a witness, and would
be highly inconvenient to do so; but that
did not make his notes evidence." Regina
V. Child, 6 Cox, C. C. 197, 203. [See also
Huff V. Bennett, 4 Sanford'.? Sup. Ct
120.]
CHAP. X.J OF WITNESSES SUBSEQUENTLY DISQUALIFIED. 195
is ordered of an issue sent out of chancery to a court of common
law, and it is suggested that some of tlie witnesses in the former
trial are of advanced age, an order may be made that, in the event
of their death or inability to attend, their testimony may be read
from the judge's notes.^
§ 167. The effect of an interest subsequently acquired by the
witness, as laying a foundation for the admission of proof of his
former testimony, remains to be considered. It is in general true,
that if a person, who has knowledge of any fact, but is under no
obligation to become a witness to testify to it, should afterwards
become interested in the subject-matter in which that fact is in-
volved, and his interest should be on the side of the party calling
him, he would not be a competent witness until the interest is
removed. If it is releasable by the party, he must release it. If
not, the objection remains ; for neither is the witness, nor a third
person, compellable to give a release ; though the witness may
be compelled to receive one. And the rule is the same in regard
to a subscribing witness, if his interest was created by the act of
the party calling him. Thus, if the charterer of a ship should
afterwards communicate to the subscribing witness of the charter-
party an interest in the adventure, he cannot call the witness to
prove the execution of the charter-party ; nor will proof of his
handwriting be received ; for it was the party's own act to destroy
the evidence.^ It is, however, laid down, that a witness cannot,
by the subsequent voluntary creation of an interest, without the
concurrence or assent of the party, deprive him of the benefit of
his testimony.^ But this rule admits of a qualification, turning
upon tlic manner in which the interest was acquired. If it were
acquired wantonly, as by a wager, or. fraudulently, for the purpose
of taking off his testimony, of which the participation of the ad-
verse party would generally be proof, it would not disqualify him.
But " the pendency of a suit cannot prevent third persons from
transacting business, hand fide, with one of the parties ; and, if an
interest in the event of the suit is thereby acquired, the common
consequence of law must follow, that the person so interested
^ Ilarffrave v. Ilargrave, 19 Jur. 957. ^ 1 Stark. Evid. 118; Barlew v. Vow-
2 llovill V. Stephenson, 5 Bing. 493; ell, Skin. 586; George v. Pierce, cited by
Hamilton o. Williams; 1 Hayw. 130; John- Buller, J., in 3 T. K. 37 ; Kex v. Fox, 1
son V. Knight, 1 N. Car. Law Rep. 93 ; 1 Str. 052 ; Long v. Baillie, 4 Serg. & K.
Murpli. 293; Bennett W.Robinson, 3 Stew. 222; Burgess v. Lane, 3 Greenl. 165;
&i-'crt. 227, 237; SchaU a. Miller, 5 Whart. Jackson v. Rurasey, 3 Johns. Gas. 234,
166 237; infra, § 418.
196 LAW OP EVIDENCE. [PAET II.
cannot be examined as a witness for that party, from whose suc-
cess he will necessarily derive an advantage." ^ Therefore, whete,
in an action against one of several underwriters on a policy of
insurance, it appeared that a subsequent underwriter had paid,
upon the plaintiff's promise to refund the money, if the defendant
in the suit should prevail ; it was held that he was not a competent
witness for the defendant to prove a fraudulent concealment of
facts by the plaintiff, it being merely a payment by anticipation,
of his own debt in good faith, upon a reasonable condition of repay-
ment.^ And as the interest which one party acquires in the testi-
mony of another is liable to the contingency of being defeated
by a subsequent interest of the witness in the subject-matter,
created bond fide, in the usual and lawful course of business, the
same principle would seem to apply to an interest arising by opera-
tion of law, upon the happening of an uncertain event, such as
the death of an ancestor, or the like. But though the interest
which a party thus acquires in the testimony of another is liable
to be affected by the ordinary course of human affairs, and of
natural events, the witness being under no obligation, on that
account, either to change the course of his business, or to abstain
from any ordinary and lawful act or employment ; yet it is a right
of which neither the witness, nor any other person, can by volun-
tary act and design deprive him. Wherever, therefore, the subse-
quent interest of the witness has been created either wantonly,
or in bad faith, it does not exclude him ; and doubtless the partici-
pation of the adverse party in the creation of such interest would,
if not explained by other circumstances, be very strong primd facie
1 3 Campb. S81, per Ld. Ellenborough. " Forrester v. Pigou, 3 Campb. 380 ; 1
Che case' of Bent v. Baker, 3 T. R. 27, M. & S. 9, s. c; Phelps v. Riley, 6 Coim.
seems to have been determined on a simi- 266. In JBurgess v. Lane, 3 Greenl. 165,
lar principle, as applied to the opposite the witness had voluntarily entered into
Btate of facts ; the subsequent interest, ac- an agreement with the defendant, against
quired by the broker, being regarded as whom he had an action pending in another
affected with bad faith on the part of the court, that that action should abide the
assured, who objected to his admission, event of tlie other, in which he was now
The distinction taken by Lord Ellenbor- called as a witness for the plaintiff; and
ough was before the Suprem"" Court of the court held, that it did not lie with the
the United States in Winship v. The Bank defendant, who was party to that agree-
of the United States, 5 Peters, 529, 54:1, ment, to object to his admissibility. But
542, 545, 546, 552, but no decision was it is observable, that that agreement was
had upon the question, the court being not made in discharge of any real or sup-
equally divided. But the same doctrine posed obligation, as in Forrester v. Pigou ;
was afterwards discussed and recognized, but was on a new subject, was uncalled
as " founded on the plainest reasons," in for, and purely voluntary ; and therefore
Eastman v. Winship, 14 Pick. 44 ; 10 subjected the adverse party to the imputa-
Wend. 162, 164, ace. tion of bad faith in making it.
CHAP, xrj OP WITNESSES SUBSEQUENTLY DISQUALIFIED. 197
evidence of bad faith ; as an act of the witness, uncalled for, and
out of the ordinary course of business, would be regarded as
wanton.^
§ 168. If, iu cases of disqualifying interest, the witness has
previously given a deposition in the cause, the deposition may be
read in chancery, as if he were since deceased, or insane, or other-
wise incapacitated. It may also be read in the trial, at law, of
an issue out of chancery. In other trials at law, no express
authority has been found for reading the deposition ; and it has
been said, that the course of practice is otherwise ; but no reason
is given, and the analogies of the law are altogether in favor of
admitting the evidence .^ And as it is hardly possible to conceive
a reason for the admission of prior testimony given in one form,
wliich does not apply to the same testimony given in any other
form, it would seem clearly to result, that where the witness is
subsequently rendered incompetent by interest, lawfully acquired,
in good faith, evidence may be given of what he formally testified
orally, in the same manner as if he were dead ; and the same
principle will lead us farther to conclude, that, in all cases where
the party has, without his own fault or concurrence, irrecoverably
lost the power of producing the witness again, whether from
physical or legal causes, he may offer the secondary evidence of
what he testified in the former trial. If the lips of the witness
are sealed, it can make no difference in principle, whether it be
by the finger of death, or the finger of the law. The interest
of the witness, however, is no excuse for not producing him in
court ; for perhaps the adverse party will waive any objection on
that account. It is only when the objection is taken and allowed,
that a case is made for the introduction of secondary evidence.
[*Our author seems, in the preceding sections, to have stated
some points more loosely than is consistent with his usiial accuracy.
We see no more reason why the judge, presiding at a former trial,
should bo exempted from verifying his minutes, if required by
1 See infra, § 418, where the subject is Pennsylvania. See also 1 Stark. Evid.
again considered. 264, 2C5 ; 1 Smith's Clian. I'r. 344 ; Gosse
^ This is now the established practice v. Tracy, 1 P. W. 287 ; 2 Vern. 609, s. c. ;
in clianccry ; Gresley on Evid. 366, 367 ; Andrews j'. Palmer, 1 Ves. & B. 21 ; Lut-
and in Chess i'. Chess, 17 Serg. & H. 412, trell «. Reynell, 1 Mod. 284; Jones k. Jones,
it was conceded by Tod, J., that the rea- 1 Cox, 184; Union Bank (■. Knapp, 3 Pick,
son and principle of the rule applied with 108, 109, per I'utnara, J. ; Water r. llem-
eqtial force, in trials at law ; tlioiigh it was ken, 9 Hob, 203. [See also Scanimon j),
deemed in tliat case to have been settled Scammon, 33 N. H. 52, 58.J
otherwise, by the course of decisions in
17*
198 LAW OP EVIDENCE. [PAKT II.
oath, and by cross-examiilation, than any other witness. Our own
minutes have always been used, in such cases, by consent ; but
we never supposed they possessed any legal verity. And we have
never supposed the rule of admitting the testimony of a deceased
witness, at a former trial, extended to all cases where the witness,
for any cause, could not be produced. It will be found, we believe,
that that rule applies to the deposition of a witness de bene esse, or
in perpetuam, and not to his testimony upon former trials.]
CHAP. XI. J OF ADMISSIONS. 19*)
CHAPTER XI.
OP ADMISSIONS.
[• § 169. The ground upon which admissions against interest are receized.
170. Distinction between confessions and admissions. Admissions.
171. Those of the party of record, and of such as are in same interest, admissible.
172. If the party of record have no interest, his admissions will not affect the party
really in interest.
173. The American courts adhere more strictly to the rule than the English.
174. The admissions of one joint party binds all, in the absence of fraud.
175. The English courts regard the inhabitants of a parish as parties ; but the
rule seems otherwise in America.
176. Community of interest required to make admissions of joint party receiva-
ble.
177. The joint interest must be shown as the basis of admitting declarations of
one party against others.
178. The same rule applies to the answer of one defendant in chancery, as against
others.
1 79. Admissions of a representative party evidence only against himself, and as
affecting matters for which he is responsible.
1 80. Admissions of the party in interest generally receivable.
181. The declarations of third parties admissible, where they are the real party to
the question.
182. A party bound by declarations of one to whom he refers.
183. Declarations of interpreter the same as of the party.
184. How far declarations of party referred to are conclusive.
185. Declarations of wife bind husband to extent of lier agency.
186. Tlie solemn admissions of attorney bind the party, but none others.
187. Admissions of principal bind surety within the transaction.
188. Judgment against surety, with notice to principal, binds liim.
189. The admissions of those in privity with party bind Mm.
190. Declarations of the assignor good evidence against assignee.
191. It is not necessary to prove admissions by the party malting them.
192. Offers to induce compromise, or without prejudice, not admissible.
193. Constraint, short of legal duress, no ground of rejecting admissions in civil
causes.
194. Incidental admissions as much evidence as those more direct.
195. Admissions may be implied, from the character one assimies. So too from
pleadings in an action inter alios.
196. So also from the conduct of the party.
197. Acquiescence in a claim concludes the party.
197a. Silence no ground of presumption, unless the occasion feirly demand some
thing to be said. Pleadings.
200 LAW OF EYIDENCB. [PAKT H.
§ 198. Presumptions of acquiescence from constant access to documents.
199. Great caution required in making inferences from silence.
200. So also in regard to oral admissions of party.
201. The whole admission must be received.
202 Answer in chancery, tlie whole taken together. All not equally reliable.
203. Oral admissions will not supply the place of writings.
204. Estoppels in pais, how far conclusive.
205. Payment of money into court admits the cause of action to that extent.
206. Court may reUeve counsel from concessions made by surprise, accident, or
mistake.
207. Party es-topped to deny what he has induced other parties to act upon.
208. It is not important whether it be really the fact or not.
209. Admissions not acted upon by others may be controverted.
210. Many admissions held conclusive on grounds of public policy.
211. Estoppels by deed not conclusive upon strangers.
212. Keceipts, accounts rendered, and accounts stated, &c,, not conclusive. ]
§ 169. Under the head of exceptions to the rule rejecting
hearsay evidence, it has been usual to treat of admissions and corir
fessions by the party, considering them as declarations against
his interest, and therefore probably true. But in regard to many
admissions, and especially those implied from conduct and as-
sumed character, it cannot be supposed tliat the party, at the
time of the principal declaration or act done, believed himself
to be speaking or acting against his own interest ; but often the
contrary. Such evidence seems, therefore, more properly admis-
sible as a substitute for the ordinary and legal proof, either in
virtue of the direct consent and waiver of the party, as in the case
of explicit and solemn admissions, or on grounds of public policy
and convenience, as in the case of tli6se implied from assumed
character, acquiescence, or conduct.^ It is in this light that con-
fessions and admissions are regarded by the Roman law, as is
stated by Mascardus. Illud igitur in primis, ut liinc potissimum
exordlar, non est icjnorandum, quod etsi eonfessioni inter prohationum
species locum in prcesentia tribuerimus ; cuncti tamen fere Dd. unanr
imes sunt arbitrati, ipsara potius esse ab onere probandi relevationem,
quam proprie probationem? Many admissions, however, being
1 See supra, § 27. former as of very little and often of no
^ Masuard. De Prnbat., vol. 1, Qua!st. weight, unless corroborated, and the latter
7, n. 1, 10,11; Menochius, De Pra3sunip., as generally, if not always, conclusive,
lib. 1, Qiues. 01, n. G; Alciatiis, De Pra- even to the overthrow of the prtesiimptio
sump., Pars. 2, n. 4. The Konian law dis- juris et de jure; thus constituting an ex-
tinguishes, with great clearness and pre- 'cejition to tlie conclusiveness of this class
cision, between confessions nxlra jmlicinm, of presumptions. But to give a confes-
and coutessions in judicio; treating the siou tliis ellect, certain things are easen-
CHAP. SI.J OP ADMISSIONS. 201
made by third persons, are receivable on mixed grounds ; partly
as belonging to the res gestae, partly as made against the interest
of the person making them, and partly because of some privity
with him against whom they are offered in evidence. The whole
subject, therefore, properly falls under consideration in this con-
nection.
§ 170. In our law, the term admission is usually applied to
tdvil transactions and to those matters of fact, in criminal cases,
which do not involve criminal intent; the term confession being
generally restricted to acknowledgments of guilt. -We shall there-
fore treat them separately, beginning with admissions. The rules
of evidence are in both cases the same. Thus, in the trial of
Lord Melville, charged, among other things, with criminal misap-
plication of moneys received from the exchequer, the admission
of his agent and authorized receiver was held sufficient proof of
the fact of his receiving the public money ; but not admissible to
establish the charge of any criminal misapplication of it. The
law was thus stated by Lord Chancellor Erskine : " This first step
in the proof" (namely, the receipt of the money), "must advance
by evidence applicable alike to civil, as to criminal cases ; for
a fact must be established by the same evidence, whether it is to
be followed by a criminal or civil consequence ; but it is a totally
different question, in the consideration of criminal, as distinguished
from civil justice, how the noble person now on trial may be
aifected by the fact, when so established. The receipt by the
paymaster would in itself involve him civilly, but could by no
possibility convict him of a crime." ^
§ 171. We sliall first consider the person, whose admissions
may be received. And here tlic general doctrine is, that the
declarations of a partg to the record or of one identified in interest
with him, are, as against such party, admissible in evidence.^ If
tial, which Mascardus cites out of Tan- tions of the parties, which are not put in
cred : — issue by the pleadings, and which there
,, . ^< . , , ■ ■ £4 was not, therefore, any opportunity of
Major spontesciens, contra se,ubi JUS ft; ^ ,,^„i^ „j. disproving. Copelaud v.
Neonatum, favor, lis jusverepugna.ethostis. r^^^^^^:,^^-, ciarlc & Fin 350, 373; Aus-
Mascard. uh. sup. n. 15; Vid. Dig. lib. 42, tin v. Chambers, 6 Clark & Fin. 1; At-
tit. 2, de confessis ; Cod. lib. 7, tit. 59 ; wood v. Small, Id. 234. But in the
Van Leeuwen's Comm., book v., ch. 21. United States this rule has not been adop-
1 29 Howell's State Trials, col. 764. ted ; and it is deemed sufficient if the
^ Spargo c. Brown, 9 B. & C. 935, per proposition to be established is stated in
Bayley, J. ; infra, §§ 180, 203. In the the bill, without stating the particular
court of cliancery, in England, evidence kind of evidence by which it is to be
ia not received of admissions or declara- proved See Smith v. Burnliam, 2 Sumn
202 LAW OF EVIDENCE. [PABT A.
they i^roceed from a stranger, and cannot be brought home to the
party, they are inadmissible, unless upon some of. the other
grounds already considered.^ Thus, the admissions of a payee
of a negotiable promissory note, not overdue when negotiated,
cannot be received in an action by the indorsee against the maker,
to impeach the consideration, there being no identity of interest
between him and the plaintiff.^
§ 172. Tliis general rule, admitting the declarations of a party
to the record in evidence, applies to all cases where the party has
ani/ interest in the suit, whether others are Joint parties on the
same side with him, or not, and howsoever the interest may
appear, and whatever may be its relative amount.^ But where
the party sues alone, and has no interest in the matter, his name
being used, of necessity, by one to whom he has assigned all his
interest in the subject of the suit, though it is agreed that he
cannot be permitted, by his acts or admissions, to disparage the
title of his innocent assignee or vendee, yet the books are not so
clearly agreed in the mode of restraining him. That chancery
will always protect the assignee, either by injunction or otherwise,
is very certain ; and formerly this was the course uniformly pur-
612; Brandon u. Cabiness, 10 Ala. R. 156; the person whose admissions are ofterea
Story, Equity Plead. § 265a, and note in evidence, with tlie party in question.
(1), where this subject is fully discussed. Thus, where the witness asked for the de-
And in England, the rule has recently fendant by name, at his lodgings, and a
been qualified, so far as to admit a written person came to the door professing to be
admission by the defendant of his liability the one asked for ; the witness being un-
to the plaintiif, in the matter of the pend- acquainted with the defendant's person
ing suit. M.alcolm v. Scott, 3 Hare, 63 ; then and since ; tliis was held suificient to
McMahon v. Burchell, 1 Coop. Cas. temp, admit the conversation which then was
Cottenham, 475 ; 7 Law Rev. 209. See had between the witness and this person,
the cases collected by Mr. Cooper in his as being, prima facie, the language of the
note appended to that case. It seems, that defendant. Reynolds v. Staines, 2 C. & K.
pleadings, whether in equity or at com- 745. [Admissions of apartymay be proved,
mon law, are not to be treated as positive althougli they relate to a written instru-
allegations of the truth of the facts therein ment. Loomis v. Wadham, 8 Gray, 556.]
stated, for all pin-poses ; but only iis state- ^ Barough v. White, 4 B. & C. 325,
ments of the case of the party, to be ad- Bristol v. Dan, 12 Wend. 142.
mitted or di'iiied by the opposite side, and ^ Bauerman v. Radenius, 7 T. R. 663 ;
if denied, to be proved, and ultimately to 2 Esp. 653, s. c. In this case the con-
be siiMiiiiied to judicial decision. Boileau signees brotight an action in the name of
V. l-full'U, 2 Exch. 665. [Answers of a the consignor, against the ship-master, for
party to a suit to interrogatories filed in the a damage to the goods, occasioned by his
ordinary mode of practice are competent negUgence ; and without supposing some
evidence against liira of the facts stated interest to remain in the consignor, the
therein, in anotlier suit, .although tlie issues action could not be maintained. It was
in tlie two suits be different. Williams v. on this ground that Lawrence, J., placed
Cheney, 3 Gray, 215 ; Judd y. Gibbs, lb. the decision. See also Norden k. William-
539. See Churcli c. Slielton, 2 Curtis, C. son, 1 Taunt. 378 ; Mandeville n. Welch,
C. 271 ; State v. Littlefield, 3 R. I. 124.] 5 Wheat. 283, 286 ; Dan et al v. Brown, 4
1 Sii/mi, §§ 128, 141, 147, 156. There Cowen, 483,492; [Black v. Lamb, 1 Beas-
must be some evidence of Ihe identity of ley, 108.]
CHAP. XI. J OP ADMISSIONS. 203
sued ; the admissic\ns of a party to the record, at common law,
being received against him in all cases. But, in later times, the
interests of an assignee, suing in the name of his assignor, have
also, to a considerable extent, been protected, in the courts of
common law, against the effect of any acts or admissions of the
latter to his prejudice. A familiar example of this sort is that
of a receipt in full, given by the assignor, being nominal plaintiff,
to the debtor, after the assignment; which the assignee is per-
mitted to impeach and avoid, in a suit at law, by showing the
previous assignment.^
§ 173. But a distinction has been taken between such admis-
sions as these, which are given in evidence to the jury, under the
general issue, and are, therefore, open to explanation, and con-
trolling proof ; and those in more solemn form, such as releases
which are specially pleaded, and operate by way of estoppel; in
which latter cases it has been held, that, *if the release of the
nominal plaintiff is pleaded in bar, the courts of law, sitting in
bank, will administer equitable relief by setting aside the plea, on
motion ; but that, if issue is taken on the matter pleaded, such
act or admission of the nominal plaintiff must be allowed its effect
at law to the same extent as if he were the real plaintiff in the
suit.^ The American courts, however, do not recognize this dis-
tinction ; but where a release from the nominal plaintiff is pleaded
in bar, a prior assignment of the cause of action, with notice
thereof to the defendant, and an averment that the suit is prose
cuted by the assignee for his own benefit, is held a good replicar
tion.^ Nor is the nominal plaintiff permitted by the entry of a
retraxit, or in any other manner injuriously to affect the rights
of his assignee in a suit at law.*
1 Henderson et al. v. Wild, 2 Campb. & A. 96 ; Craib v. D'Aeth, 7 T. R. 670,
561. Lord Ellenborough, in a previous note (b) ; Leigli v. Leighj 1 B. & P. 447 ;
case of tlie same kind, thouglit himself not Anon. 1 Salk. 260 ; Paj'ne v. Rogers,
at liberty, sitting at Nisi Prius, to over- Doug. 407 ; Skaife v. Jackson, 3 B. & C.
rule the defence. Alner v. George, 1 421.
Campb. 392 ; Frear v. Evertson, 20 Johns. ^ Mandeville v. Welch, 5 Wheat, 277
142. See also Payne v. Rogers, Boug. 283; Andrews v. Beeker, 1 Johns. Cas.
407 ; Winch v. Keeley, 1 T. R. 619 ; Cock- 411 ; Raymond v. Squire, 11 Johns. 47 ;
shott V. Bennett, 2 T. R. 768 ; Lane v. Littlefleld v. Story, 3 Johns. 425 ; Dawson
Chandler, 3 Smith, R. 77, 83 ; Skaife v. v. Coles, 16 Johns. 51 ; Kimball o. Hun-
Jackson, 3 B. & C. 421 ; Appleton v. Boyd, tington, 10 Wend. 675 ; Owings v. Low, 5
7 Mass. 131 ; Tiermen v. Jackson, 5 Gill & Johns. 134.
Peters, 580 ; Sargeant v. Sargeant, 3 * Welch v. Mandeville, 1 Wheat. 233.
Waslib. 371 ; Head v. Shaver, 9 Ala. 791. " By the common law, choses in action
2 Alner v. George, 1 Campb. 395, per were not assignable, except to the crown.
Ld. EUeuborough ; Gibson v. Winter, 5 B. The civil law considers them as, strictly
204
LAW OP EVIDENCE.
[PABT U.
§ 174. Though the admissions of a party to the record are
generally receivable in evidence against him, yet where there
are several parties on the same side, the admissions of one are not
admitted to affect the others, who may happen to be joined with
him, unless there is some joint interest, or privity in design
between them ; ^ although the admissions may, in proper cases, be
received against the person who made them. Thus, in an action
against joint makers of a note, if one suffers judgment by default,
his signature must still be proved, against the other.^ And even
where there is a joint interest, a release, executed by one of
several plaintiffs, will, in a clear case of fraud, be set aside in
a court of law.^ But in tlie absence of fraud, if the parties have
a joint interest in the matter in suit, whether as plaintiffs or
defendants, an admission made by one is, in general, evidence
against all.* They stand to each other, in this respect, in a relation
speaking, not assignable ; tut, ty the in-
vention of a fiction, the Eoman juriscon-
sults contrived to attain this object. The
creditor who wished to transfer his right
of action to another person, constituted
him his attorney, or procurator in rem suam
as it was called; and it was stipulated
that the action should be brought in the
name of the assignor, but for the benefit
and at the expense of the assignee.
Pothier de Vente, No. 550. After notice
to the debtor, this assignment operated a
complete cession of the debt, and invah-
dated a payment to any other person than
the assignee, or a release tirom any other
person than him. Id. 110, 554 ; Code
Napoleon, lir. 3, tit. 6 ; De la Vente, c. 8,
§ 1690. The court of chancery, imitat-
ing, in its usual spirit, the civil law, in
this particular, disregarded tlie rigid strict-
ness of the common law, and protected
the rights of the assignee of choses in
action. This liberality was at last adopted
by the courts of common law, who now
consider an assignment of a chose in
action as substantially valid, only preserv-
ing, in certain cases, the form of an action
commenced in the name of the assignor,
the beneficial interest and control of the
suit being, however, considered as com-
pletely vested in the assignee, as procura-
tor in rem suam. See Master v. Miller, 4
T. II. 340 ; Andrews v. Beecker, 1 Johns.
Cas. 411 ; Bates v. New York Insurance
Company, 3 Johns. Cas. 242 ; Wardell v.
Eden, 1 Johns. 532, in notis; Carver v.
Tracy, 3 Johns. 426 ; Raymond v. Squire,
11 Johns. 47 ; Van Vechten v. Greves, 4
Johns. 406 ; Weston v. Barker, \2 Johns.
276." See the reporter's note to 1 Wheat.
237. But where the nominal plaintiff was
constituted, by the party in mterest, his
agent for negotiating the contract, and it
is expressly made with him alone, he is
treated, in an action upon such contract,
' in all respects as a party to the cause ; and
any defence against him is a defence, iu
that action, against the cestui que trust,
suing in his name. Therefore, where a
broker, in whose name a policy of insur-
ance under seal was effected, brought an
action of covenant thereon, to which pay-
ment was pleaded ; it was held that pay-
ment of the amount of loss to the broker,
by allowing him credit in account for that
sum, against a balance for premiums due
from him to the defendants, was a' good
payment, as between the plaintiff on the
record and the defendants, and, therefore,
an answer to the action. Gibson v. Win-
ter et al. 5 B. & Adol. 96. This case,
however, may, with equal and perhaps
greater propriety, be referred to the law
of agency. See Eichardson v. Anderson,
1 Campb. 43, note ; Story on Agency, §
413, 429^34.
1 See supra, §§ 111, 112 ; Dan et al.
V. Brown, 4 Cowen, 483, 492; Eex v.
Hardwick, 11 East, 578, 589, per Le
Blanc, J. ; WMtcomb v. Whiting, 2 Doug.
652.
2 Gray v. Palmer, 1 Esp. 135. See
also Sheriff v. Wilks, 1 East, 48.
^ Jones et aU v. Herbert, 7 Taunt. 421 ,
Loring k al. v. Brackett, 3 Pick. 403;
Skaife et al. v. Jackson, 3 B. & C. 421;
Henderson et al. v. Wild, 2 Campb. 561.
^ Such was the doctrine laid down by
CHAP. XI.]
I IF ADMISSIONS.
205
similar to tliat of existing copartners. Tlius, also, the act of
making a partial payment within six years, by one of several joint
makers of a promissory note, takes it out of the statute of limita-
tions.i And where several were both legatees and executors iii
a will, and also appellees in a question upon the prcbate of the
will, the admission of one of them, as to facts which took place
at the time of making the will, showing that the testatrix was
imposed upon, was held receivable in evidence against the validity
of the will.2 And where two were bound in a single bill, the
admission of one was held good against both defendants.^
§ 175. In settlement cases, it has long been held that declara-
tions by rated parishioners are evidence against the parish ; for
they are parties to the cause, though the nominal parties to the
Ld. Mansfield in "Whitcomb v. Whiting, 2
Doug. 652. Its propriety, and the extent
of its application have been much dis-
cussed, and sometimes questioned ; but it
seems now to be clearly established. See
Perham v. Raynal, 2 Bing. 306 ; Burleigh
v. Stott, 8 B. & C. 36 ; Wyatt w. Hodson
8 Bing. 309 ; Brandram v. Wharton, 1 B.
& A. 467 ; Holme v. Green, 1 Sterk. R.
488. See also, accordingly. White v. Hale,
3 Pick. 291; Martin v. Boot, 17 Mass.
222; Hunt v. Brigham, 2 Pick. 581;
I'rye v. Barker, 4 Pick. 382; Beitz v.
Fuller, 1 McCord, 541 ; Johnson v. Beards-
lee, 1 Johns. 3; Bound v. Lathrop, 4
Oonn. 336; Coit v. Tracy, 8 Conn. 268,
276, 277 ; Getchell v. Heald, 7 Greeul. 26 ;
Owings V. Low, 5 Gill & Johns. 144 ;
Patterson v. Choate, 7 Wend. 441 ; Mcln-
tire V. Ohrer, 2 Hawks, 209 ; Cady v.
Shepherd, 11 Pick. 400; Van Eeimsdyk
V. Kane, 1 Gall. 635, 636; [Barriek v.
Austin, 21 Barb. 241; Camp v. DUl, 27
Ala. 553.] But see Bell v. Morrison, 1
Peters, 351. But the admission must be
distinctly made by a party still liable upon
the note; otherwise it will not be bind-
ing against the others. Therefore, a pay-
ment appropriated, by the election of the
creditor only, to the debt in question, is
not a suflScient admission of that debt, for
this purpose. Holmes v. Green, ub sup.
Neither is a payment, received under a
dividend of the effects of a bankrupt pro-
misor. Brandram v. Wharton, ub sup.
In this last case, the opposing decision in
Jackson v. Pairbank, 2 H. Bl. 340, was
considered and strongly disapproved ; but
it was afterwards cited by Holroyd, J.,
as a valid decision, in Burleigh v. Stott,
8 B. & C. 36. The admission where one
rf the promisors is dead, to take the case
out of the statute of limitations against
him, must have been made in his lifetime ;
Burleigh v. Stott, supra; Slatter v. Law-
son, 1 B. & Ad. 396 ; and by a party origi-
nally Uable ; Atkins v. Tredgold, 2 B. &
C. 23. This effect of the admission of
indebtment by one of several joint promi-
sors, as to cases barred by the statute of
limitations, when it is merely a verbal ad-
mission, without part payment, is now
restricted in England, to the party making
the admission, by Stat. 9, Geo. IV. c. 14,
(Lord Tenterden's Act.) So in Massa-
chusetts, by Gen. Stat. eh. 155, § 14, 16 ;
and in Vermmt, Rev. St. eh. 58, §§ 23, 27.
The application of tliis. doctrine to part-
ners, after the dissolution of the partner-
ship, has already been considered. Supra,
§ 112, note. Whether a written aeknowl
edgment, made by one of several partners,
stands upon different ground from that of
a similar admission by one of several joint
contractors, is an open question. Clark v.
Alexander, 8 Jur. 496, 498. See post, vol.
2, §§ 441, 444; Pierce v. Wood, 3 Poster,
520.
1 Burleigh v. Stott, 8 B. & C. 36 ;
Munderson v. Reeve, 2 Stark. Evid. 484 ;
Wyatt V. Hodson, 8 Bing. 309 ; Chippen-
dale V. Thurston, 4 C. & P. 98 ; 1 M. & M.
411, s. c; Pease v. Hirst, 10 B. & C. 122.
But it must be distinctly shown to be a
payment on account of the particular debt.
Holme V. Green, 1 Stark. E. 488.
2 Atkins V. Sanger et al., 1 Pick. 192.
See also Jackson v. Vail, 7 Wend. 125 ;
Osgood V. The Manhattan Co., 3 Cowen,
612.
' Lowe V. Boteler a al., 4 Har. &
McHen. 346; Vicary's case, 1 Gilbfirt^
Evid. by Lofit, p. 59, rota.
18
206 LAW OP EVIDENCE. [PAET II.
appeal be churchwardens and overseers of the poor of the parish.'
The same principle is now applied in England to all other prosecu-
tions against towns and parishes, in respect to the declarations of
ratable inhabitants, they being substantially parties to the record.^
Nor is it necessary first to call the inhabitant, and show that he
refuses to be examined, in order to admit his declarations.^ And
the same principle would seem to apply to the inhabitants of
towns, counties, or other territorial political divisions of this coun-
try, who sue and are prosecuted as inhabitants, eo nomine, and
are termed quasi corporations. Being parties-, personally liable,
their declarations are admissible, though the value of the evidence
may, from circumstances, be exceedingly light.* [*We believe the
practice is not general, in the American states, to admit the dec-
larations of the members of a corporation, as evidence against the
corporation itself. And it seems to us, that upon principle they
are clearly inadmissible. There is no rule of law better settled
than that the admissions of a shareholder will not bind the corpo-
ration. Nor will the admission of a director or agent of a private
corporation bind the company, except as a part of the res gestce.
And it will make no difference that the action is in the corporate
name of the President and Directors ; that does not make them
parties in person. And we see no more reason why the admis-
sions of the inhabitants of a town or parish should bind the
municipality, becatise the action happens to be in form, in the
name of such inhabitants, than that all the admissions or declara-
tions of the people at large should be evidence against the public
prosecutor in criminal proceedings, when they are instituted in
the name of The People, which we believe would be regarded as
an absurdity, by every one. We conclude, therefore, that in no
1 Eex V. Inhabitants of Hardwick, 11 enacted. LL. Vermont (Rev. Code, 1839),
East, 679. See supra, §§ 128, 129. ch. 31, § 18 ; Massachusetts, Rev. Stat, ch
2 Eegina v. Adderbury, 5 Ad. & El. 94, § 54; Delaware (Rev. Code, 1829), p.
187, K. s. 444; New York, Rev. Stat. vol. 1, pp.
8 Rex V. Inhabitants of "Whitley Lower, 408, 439 (3d edit.) ; Maine, Rev. Stat. 1840
1 M. & S. 637 ; Rex v. Inhabitants of ch. 115, § 75 ; New Hampshire, Rev. Stat.
Woburn, 10 East, 395. 1842, ch. 188, § 12 ; Pennsiilcanin, Dunl.
< 11 E:ist, 58G, per Ld. Ellenborough ; Dig. pp. 215, 913, 1019, 11(55; Midtinan,
2 Stark. Evid. 580. The statutes render- Rev. Stat. 1846, oh. 102, § 81. In several
mg quasi corporators competent witnesses States, the interest of inhabitants, merely
(see 54 Geo. III. c. 170 ; 3 & 4 Vict. c. 25) as such, has been deemed too remote ani
are not understood as interfering with the contingent, as well as too minute, to dis-
rule of evidence respecting admissions, qualify them, and they have been held
Phil, and Am. on Evid. 395, and n. (2) ; competent at common law. Eustis v.
1 Phil. Evid. 375, n. (2). In some of the Parker, 1 New Hamp. 273; Cornwell v.
United States, similar statutes have been Isham, 1 Day, 35; Euller v. llamplon, 6
CHAP. XI.] OP ADMISSIONS, 207
such case can the admission or declaration of a corporator be fairly,
regarded as evidence against the corporation.^]
§ 176. It is a joint interest, and not a mere community of interest,
that renders such admissions receivable. Tlierefore the admis-
sions of one executor are not received, to take a case out of the
statute of limitations, as against his co-executor.^ Nor is an
acknowledgment of indebtment by one executor admissible against
his co-executor, to establish the original demand.^ The admission
of the receipt of money, by one of several trustees, is not received
to charge the other trustees.* Nor is there such joint interest
between a surviving promisor, and the executor of Iiis co-promisor,
as to make the act or admission of the one svifficient to bind the
other.^ Neither will the admission of one, who was joint promisor
with a feme sole, be received to charge her husband, after the
marriage, in an action against them all, upon a plea of the statute
of limitations.^ For the same reason, namely, the absence of
a joint interest, the admissions of one tenant in common are not
receivable against his co-tenant, though both are parties on the
same side in the suit.^ Nor are the admissions of one of several
devisees or legatees admissible to impeach the validity of the will,
where they may effect others, not in privity with him.^ Neither
are the admissions of one defendant evidence against the other,
in an action on the case for the mere negligence of both.^
§ 177. It is obvious that an apparent joint interest is not suffi-
Conn. 416; Falls v. Belknap, 1 Johns. Rawl. 75; Hathaway v. Haskell, 9 Pick.
486 ; Bloodgood v. Jamaica, 12 Johns. 284 ; 42.
ex parte Kip, 1 Paige, 613 ; Corwein v. ^ Pittnam v. Foster et al. 1 B. & C.
Hames, 11 Johns. 76 ; Orange v. Spring- 248.
field, 1 Southard, 186 ; State v. Davidson, ' Dan et al. v. Brown et al., 4 Cowen,
1 Bayley, 35; Jonesborough v. McKee, 2 483, 492. And see Smith v. Vincent, 15
Yerger, 167 ; Gass v. Gass, 3 Humph. Conn. R. 1.
278, 285. See wfra, § 331. 8 Hauberger v. Koot, 6 Watts & Serg.
1 I * Watertown v. Cowen, 4 Paige, 431.
510; Burlington v. Calais, 1 Vt. R. 385; » Daniels v. Potter, 1 M. & M. 501;
Low V. Perlcins, 10 Vt. R. 532.] supra, § 111. Neither is there such privity
'^ TuUock V. Dunn, R. & M. 416. Qu. among the members of a board of public
and see llammon v. Huntley, 4 Cowen, officers, as to make the admissions of one
493. But tlie declarations of an executor binding on all. Lockwood v. Smith et al.
or administrator are admissible against 5 Day, 309. Nor among several indorsers
him, in any suit by or against liim in that of a promissory note. Slaymaker v.
character. Paunce v. Gray, 21 Pick. 243. Gundacker's Ex'r, 10 Serg. & Rawl. 75.
8 Hammon v. Huntley, 4 Cowen, 493 ; Nor between executors and Iieirs or devi-
James (■. Uaokley, 16 Johns. 277 ; For- sees. Osgood v. Manhattan Co., 3 Cowen,
syth V. Ganson, 5 Wend. 558. 611. [*The same rule applies to the
* Davies o. Ridge et al., 3 Esp. 101. admissions of co-defendants in acliona
5 Atkins V. Tredgold et at., 2 B. & C. of trover. Edgerton v. Wo\i, 6 Gray,
23 ; Slater v. Lawson, 1 B. & Ad. 396 ; Slay- 453.]
maker v Gundacker's Ex'r, 10 Serg. &.
208 LAW OF EVIDENCE. [PAET 11.
eient to render the admissions of one party receivable against his
companions, where the reality of that interest is the point in con-
troversy. A foundation must first be laid, by showing, primd
facie, that a joint interest exists. Therefore, in an action against
several joint makers of a promissory note, the execution of which
was the point in issue, the admission of his signature only by one
defendant was held not sufficient to entitle the plaintiff to recover
against him and the others, though theirs had been proved ; the
point to be proved against all being a joint promise by all.^ And
where it is sought to charge several as partners, an admission of
the fact of partnership by one is not receivable in evidence against
any of the others, to prove the partnership. It is only after the
partnership is shown to exist, by proof satisfactory to the judge,
that the admission of one of the parties is received, in order to
affect the others.^ If they sue upon a promise to them as partners,
tlie admission of one is evidence against all, even though it goes
to a denial of the joint right of action, the partnership being con-
clusively admitted by the form of action.^
§ 178. In general, the answer of one defendant in chancery
cannot be read in evidence against his co-defendant; the reason
being, that, as there is no issue between them, there can have
been no opportunity for cross-examination.* But this rule does
not apply to cases where the other defendant claims through him,
whose answer is offered in evidence ; nor to cases where they have
a joint interest, either as partners, or otherwise, in the trans-
action.^ Wherever the confession of any party would be good
evidence against another, in such case, his answer, a fortiori, may
be read against the latter.^
1 Gray v. Palmer a al. 1 Esp. 135; * Jones v. Tuberyille, 2 Ves. 11;
[Boswell V. Blackmail, 12 Geo. 591.] Morse v. Royall, 12 Ves. 355, 360; Leeds
2 Nichols V. Dowding et al. 1 Stark. R. v. The Mtirine Ins. Co. of Alexandria,
81 ; Grant v. Jackson et al. Peake's Gas. 2 Wheat. 380 ; Gresley on Eci. Evid. 24 ;
204 ; Burgess v. Lane et al. 3 Greenl. 165 ; Field v. Holland, 6 Cranch, 8 ; Clark's
Grafton Bank w. Moore, 13 N. Hamp. 99. Ex'rs ;>. Van Reimsdyk, 9 Cranch, 153;
See supra, § 112 ; posf, vol. 2, § 484 ; La- Van Reimsdyk v. Kane, 1 Gall. 630;
tham V. Kenniston, 13 N. Hamp. 203; Parkeru. Morrell, 12 Jur. 253 ; 2 C. &. K.
Whitney v. Ferris, 10 Johns. 06 ; Wood 599 ; Morris v. Nixon, 1 How. s. o. Rep.
V. Braddick, 1 Taunt. 104 ; Sangster v. 48.
Mazzaredo et al. 1 Stark. R. 161; Van ^ Field v. Holland, 6 Cranch, 8, 24;
Reimsdyk v. Kane, 1 Gall. 635 ; Har- Clark's Ex'rs v. Van Reimsdyk, 9 Cranch,
ris V. Wilson, 7 Wend. 57 ; Buckman 153, 156 ; Osborn v. United States Bank,
V. Barnum, 15 Conn. R. 68 ; [AUcott v. 9 Wheat. 738, 832 ; Christie v. Bishop, 1
Strong, 9 Cush. 323; Button v. Wood- Barb. Ch. R. 105, 116.
man, lb. 255; Rich v. Flanders, 39 N. « Van Reimsdyk v. Kane, 1 Gall. 630,
Hamp. 304.] 685.
8 Lucas ct al. v. De La Cour, 1 M. & S.
249.
CHAP. XI.] OP ADMISSIONS. 209
§ 179. The admissions, which are thus recei'vable in eyidence,
must, as we have seen, be those of a person having at the time
some interest in the matter, afterwards in controversy in the suit
to which he is a party. Tlie admissions, therefore, of a guardian,
or of an executor or administrator, made before he was completely
clothed with that trust, or of a prochein amy, made before the
commencement of the suit, cannot be received, either against
tlie ward or infant in the one case, or against himself, as the rep-
resentative of heirs, devisees, and creditors, in the other ; ^ though
it may bind the person himself, when he is afterwards a party
suo jure, in another action. A solemn admission, however, made
in good faith, in a pending suit, for the purpose of that trial only,
is governed by other considerations. Thus, the plea of nolo con-
tendere, in a criminal case, is an admission for^ that trial only.
One object of it is, to prevent the proceedings being used in any
other place ; and therefore it is held inadmissible in a civil action
against the same party .^ So, the answer of the guardian of an
infant defendant in chancery can never be read against the infant
in another suit; for its office was only to bring the infant into
court and make him a party.^ But it may be used against the
guardian, when he afterwards is a party in his private capacity,
for it is his own admission upon oath.* Neither can the admission
of a married woman, answering jointly with her husband, be after-
wards read against her, it being considered as the answer of the
husband alone.^
§ 180. We are next to consider the admissions of persons who
1 Webb w. Smith, E. &M. 106; Fraser Tenney u. Evans, 14 N. Hamp. 343.
V. Marsh, 2 Stark. 41 ; Cowling v. Ely, Id. [*Legge v. Edwards, 2 L. J. ch. 125.]
366 ; Plant v. McEwen, 4 Conn. 544. So, ^ q,^\^ „. Lee, 3 Law Reporter, p. 433.
the admissions of one, before he became So, an admission in one plea cannot be
assignee of a bankrupt, are not receivable called in aid of the issue in another,
against him, where suing as assignee. Fen- Stracey v. Blake, 3 C. M. & R. 168 ; Jones
wick V. Thornton, 1 M. & M. 51. But see v. Flint, 2 P. & D. 594; Gould on Plead-
Smith V. Morgan, 2 M. & Rob. 257. Nor ing, 432, 433 ; Mr. Rand's note to Jackson
is the statement of one partner admissible v. Stetson, 15 Mass. 58.
against the others, in regard to matters ^ Eggleston v. Speke, alias Petit, 3
which were transacted before he became Mod. 258, 259 ; Hawkins v. Luscombe, 2
a partner in the, house, and in which he Swanst. 392, cases cited in note (a) ;
had no interest prior to that time. Catt Story on Eq. PI. 668 ; Gresley on Eq.
w. Howard, 3 Stark. R. 3. In trover by an Evid. 24, 323 ; Mills v. Dennis, 3 Johns
infant suing by his guardian, the state- Ch. 367.
ments of the guardian, tending to show * Beasly v. Magrath, 2 Sch. & Left,
that the property was in fact his own, are 34; Gresley on Eq. Evid. 323. i
admissible against the plaintiff, as being ^ Hodgson v. Merest, 9 Price, 663;
the declarations of a party to the record. Elston v. Wood, 2 My, & K. 678.
18*
210
LAW OF EVIDENCE.
[part II.
are not parties to the record, but yet are interested in the subject-
matter of the suit. The law, in regard to this source of evidence,
looks chiefly to tlae real parties in interest, and gives to their
admissions the same weight, as though they were parties to the
record. Thus the admissions of the cestui que trust of a bond;^
those of the persons interested in a policy effected in another's
name, for their benefit ;2 those of the ship-owners, in an action by
the master for freight ; ^ those of the indemnifying creditor, in an
action against the sheriff;"^ those of the deputy-sheriff, in an action
against the high-sheriff for the misconduct of the deputy ; ^ are all
receivable against the party making them. And, in general, the
admissions of any party represented by another, are receivable in
evidence against his representative.® But here, also, it is to be
1 Hanson u. Parker, 1 Wils. 257. See
also Harrison v. Vallance, 1 Bing. 45. But
the declarations of the cestui que trust are
admissible, only so far as his interest and
that of the trustee are identical. Doe v.
Wainwright, 3 Nev. & P. 598. And the
nature of his interest must be shown, even
though it be admitted that he is a cestui
que trust. May v. Taylor, 6 M. & Gr. 261.
[The admissions of a silent partner, not a
party to record, may be given in evidence.
Weed V. Kellogg, 6 McLean, 4-t.] [* But
the admissions of one of several cesluis que
trust of real estate are not admissible to
defeat the title of the trustee. Pope v.
Devereux, 5 Gray, 409.]
2 Bell V. Ansley, 16 East, 141, 143.
* Smith V. Lyon, 3 Campb. 465.
* Dowdon V. Powle, 4 Campb. 38 ;
Dyke v. Aldridge, cited 7 T. E. 665 ; 11
East, 584 ; Young v. Smith, 6 Esp. 121 ;
Harwood v. Keyes, 1 M. & Rob. 204;
Proctor V. Lainson, 7 C. & P. 629.
5 The admissions of an under-sheriff
are not receivable in evidence against tlie
sheriff, unless tliey tend to charge himself,
he being the real party in the cause. He
is not regarded as the general oiEcer of
the sheriff, to all intents. Snowball v.
Goodricke, 4 B. & Ad. 641 ; though the
admissibility of his declarations has some-
times been placed on that ground. Drake
V. Sykes, 7 T. R 118. At other times
they ha\e been received on the ground,
that, being liable over to the sheriff, he is
the rd^y^nrty to the suit. Yabsley v.
Doble, 1 Ld. Raym. 190. And where the
sheriflf has taken a general bond of indem-
nity from the under-officer, and has given
him notice of the peudmcy of the suit,
and required him to defend it, the latter is
in feet the real party in interest, whenever
the sheriff is sued for his default ; and his
admissions are clearly receivable, on prin-
ciple, when made against himself. It has
elsewhere been said, that the declarations
of an under-slieriff are evidence to charge
the sheriff, only where his acts might be
given in evidence to charge him ; and
then, rather as acts than as declarations,
the declarations being considered as part
of the res gestie. W^heeler v. Hambright,
9 Serg. & R. 396, 397. See Scott v. Mar-
shall, 2 Cr. & Jer. 238 ; Jacobs v. Hum-
phrey, 2 Cr. & Mees. 413; 2 Tyrw. 272,
s. c. But whenever a person is bound by
the record, he is, for all purposes of evi
dence, the party in interest, and, as such,
his admissions are receivable against liim,
both of the facts it recites, and of the
amount of damages, in all cases wl}ere,
being liable over to the nominal defend-
ant, he has been notified of the suit, and
required to defend it. Clark's IC.x'rs v.
Carrington, 7 Cranch, 322; Hamilton r.
Cutts, 4 Mass. 849; Tyler v. Ulmer, 12
Mass. 166; Uuflfieid v. Scott, 8 T. R. 874;
Kip V. Brigiiam, 6 Jones, 158; 7 Johns.
168 ; Bender v. Fromberger, 4 Dall. 436.
See also Carlisle u. Garland, 7 Bini;. 298 ,
North V. Miles, 1 Campb. 389; Bowslier
V. Calley, 1 Campb. 391, note ; Underliill i>.
Wilson, 0 Bing. 697; Bond (.■. Wiinl 1
Nott & McCord, 201; Carniack v. flie
Commonwealth, 5 Binn. 184; Sloni.tn o.
Heme, 2 Esp. 695 ; Williams v. Bridges,
2 Stark. R. 42 ; Savage t. Balcli, 8 Grccnil.
27. [The admissions of a party niuned fis
an executor and legatee of a will, as to tlio
unsoundness of the mind of tlie testator,
are admissible, upon a probate of the will.
Robinson v. Hutchinson, 31 Vt. 44o.j
« Stark. Evid. 26; North u. iMiles, 1
Campb. 890.
CHAP, XI. J OF ADMISSIONS. 211
observed, that the declarations or admissions nnist have been
made wliile the party making them had some interest in the
mattet ; and they are receivable in evidence only so far as liis own
interests are concerned. Thus, the declaration of a bankrupt,
made before his bankruptcy, is good evidence to charge his estate
with a debt; but not so, if it was made afterwards.^ While the
declarant is the only party in interest, no harm can possibly resiilt
from giving full effect to his admissions. Ho may be supposed
best to know the extent of his own rights, and to be least of all
disposed to concede away any that actually belonged to him. But
an admission, made after other persons have acquired separate
rights in the same subject-matter, cannot be received to disparage
their title, however it may affect that of the declarant himself.
This most just and equitable doctrine will be found to apply not
only to admissions made by bankrupts and insolvents, but to the
case of vendor and vendee, payee and indorsee, grantor and
grantee, and, generally, to be the pervading doctrine, in all cases
of rights acquired in good faith, previous to the time of making
the admissions in question.^
§ 181. In some cases, the admissions of third persons, strangers
to the suit, are receivable. This arises, when the issue is substan-
tially upon the mutual rights of such persons at a particular time ;
in which case the practice is, to let in such evidence in general,
as would be legally admissible in an action between the parties
themselves. Thus, in an action against the sheriff for an escape,
the debtor's acknowledgment of the debt, being sufficient to
charge him, in the original action, is sufficient, as against the
sheriff, to support the averment in the declaration, that the party
escaping was so indebted.^ So, an admission of joint liability by
a third person has been held siifficient evidence on the part of the
defendant, to support a plea in abatement for the non-joinder of
such person, as defendant in the suit ; it being admissible in an
action against him for the same cause.* And the admissions of
a bankrupt, made before the act of bankniptcy, are receivable in
1 Balenmn v. Bailey, 5 T. R. 513; Goldsborough, 9 Serg. & R. 47; Babb
Smitli V. Simmes, 1 Esp. 330; Deady v. v. Clemson, 12 Serg. & E. 328; [Infra,
Harrison, 1 Stark. R. 60 ; [Infra, § 190.] § 190.]
- Bartlett v. Delprat, i Mass. 702, 708. ^ Sloman v. Heme, 2 Esp. 695 ; Wil-
Clarke v. Waite, 12 Mass. 439; Britlge v. Hams v. Bridges, 2 Stark. R. 42; Kemp-
Eggleston, 14 Mass. i!45, 250, 201 ; Plie- land v. Macauley, Peake's Cas. 65.
nix V Ingrahara, 5 Jolins. 412 ; Packer v. * Clay o. Langslow, 1 M. & BI. 45.
Gonsalus, 1 Serg. & R. 526; Patton v. Sed quaire, and see infra, § 395.
212 LAW OF EVIDENCE. [PART U.
proof of the, petitioning creditor's debt. His declarations, made
after tlie act of bankruptcy, though admissible against himself,
form an exception to this rule, because of the intervening rights
of creditors, and the danger of fraud.^
§ 182. The admissions of a third person are also receivable in
evidence, against the party who has expressly referred another to
him for information, in regard to an uncertain or disputed matter.
In such cases, the party is bound by the declarations of the person
referred to, in the same manner, and to the same extent, as if
they were made by himself.^ Tlius, upon a plea of plene adminis-
travit, where the executors wrote to the plaintiff, that if she wished
for further information in regard to the assets, she should ' apply
to a certain merchant in the city, they were held bound by the
replies of the merchant to her inquiries upon that subject.^ So,
in assumpsit for goods sold, where the fact of the delivery of them
by the carman was disputed, and the defendant said, " If he will
say that he did deliver the goods, I will pay for them ; " he was
held bound by the affirmative reply of the carman.*
§ 183. This principle extends to the case of an interpreter whose
statements of what the party says are treated as identical with
those of the party himself; and therefore may be proved by any
person who heard them, without calling the interpreter.^
§ 184. Whether the answer of a person thus referred to is
conclusive against the party does not seem to have been settled
1 Hoare v. Coryton, 4 Taunt. 560 ; 2 " Williams v. Innes, 1 Campb. 364.
Rose, 158 ; Robson v. Kemp, 4 Esp. 234 ; * Daniel v. Pitt, 1 Campb. 366, note ;
Watts V. Thorpe, 1 Campb. 376 ; Small- 6 Esp. 74, s. c. ; Brock v. Kent, lb. ; Bm-t
combe v. Surges, McClel. R. 45 ; 13 Price, v. Palmer, 5 Esp. 145 ; Hood i'. Reeve,
136, s. c. ; Taylor v. Kinloch, 1 Stark. R. 3 C. & P. 532.
175; 2 Stark. R. 594; Jarrett v. Leonard, ^ Eabrigas v. Mostyn, 11 St. Tr. 171.
2 M. & S. 265. The dictum of Lord Ken- The cases of the reference of a disputed
yon, in Dowton v. Cross, 1 Esp. 168, that liability to the opinion of legal counsel,
the admissions of a bankrupt, made after and of a disputed fact regarding a mine to
the act of bankruptcy, but before the a miner's jury, have been treated as fall-
commission issued, are receivable, is con- ing under this head ; the decisions being
tradicted in 13 Price, 153, 154, and over- held binding, as the answers of persons
ruled by that and the other cases above referred to. How far the circumstance,
cited. See also Bernasconi v. Farebrother, that if treated as awards, being in writing,
3 B. & Ad. 372. [*The evidence of the they would have been void for want of a
principal will not charge the surety, es- stamp, may have led the learned judges
pecially after the transaction is terminated, to consider them in another light, does not
Chelmsford Co. w. Demarest, 7 Gray, 1. appear. Sy bray ». White, 1 M. &W. 435.
But the admission of the surety is good But in this country, where no stamp is
against both in the absence of collusion, required, they would more naturally be
Chapel V. Washburn, 11 Ind. 393.1 regarded as awards upon parol submis-
2 [Turner t'. Yates, 16 How. (U. S.) 14; sions, and therefore conclusive, unless im-
Chapman v. Twitchell, 37 Maine, 69 ; peached for causes recognized in the law
Chadsey t. Greene, 24 Conn. 562.] of awards.
CHAP. XI.] OP ADMISSIONS. 213
Where the plaintiff had offered to rest his claim upon the defend-
ant's affidavit, which was accordingly taken, Lord Kenyon held,
that he was conclusively bound, even though the affidavit had
been false ; and he added, that, to make such a proposition and
afterwards to recede from it was mala fides; but that, besides
that, it might be turned to very improper purposes, such as to
entrap the witness, or to find out how far the party's evidence
would go in support of his case.^ But in a later case, where the
question was upon the identity of a horse, in the defendant's pos-
session, with one lost by the plaintiff, and the plaintiff had said,
that if the defendant would take his oath that the horse was his,
he should keep him, and he made oatli accordingly ; Lord Ten-
terden observed, that considering the loose manner in which the
evidence had been given, he would not receive it as conclusive ;
but that it was a circumstance on which he should not fail to
remark to the jury.^ And certainly the opinion of Lord Tenter-
den, indicated by what fell from him in this case, more perfectly
harmonizes witli other parts of the law, especially as it is opposed
to any further extension of the doctrine of estoppels, which some-
times precludes the investigation of truth. The purposes of jus-
tice and policy are sufficiently answered, by throwing the burden
of proof on the opposing party, as in a case of an award, and hold-
ing him bound, unless he impeaches the test referred to by clear
proof of fraud or mistake.^
§ 185. The admissions of the wife will bind the husband, only
where she has authority to make them.* Tliis authority does not
result, by mere operation of law, from the relation of husband and
wife ; but is a question of fact, to be found by the jury, as in other
cases of agency ; for though this relation is peculiar in its circum-
stances, from its close intimacy and its very nature, yet it is not
peculiar in its principles. As the wife is seldom expressly con-
stituted the agent of the husband, the cases on this subject arn
' Stevens v. Thacker, Peake's Cas. Anderson v. Sanderson, 2 Stark. R. 204;
187 ; Lloyd v. Willan, 1 Esp. 178 ; Deles- Carey v. Adkins, 4 Campb. 92. In Wal-
line V. Greenland, 1 Bay, 458, ace., where ton v. Green, 1 C. & P. 621, which was an
the oath of a third person was referred to. action for necessaries furnished to the
See Reg. «. Moreau, 36 Leg. Obs. 69 ; 11 wife, the defence being that she was
Ad. & El. 1028, as to the admissibility of turned out of doors for adultery, the hus-
an award as an admission of the party, band was permitted to prove her confes-
Infra, § r)37, n. (1). sions of tlie fact, just previous to his
2 Garnett v. Ball, 3 Stark. R. 160. turning her away ; but this was cnntem-
2 Whitehead u. Tattersall, 1 Ad. & El. porary with the transaction of which it
491. formed ^ part.
* Emerson v, Blonden 1 Esp. 142;
214 LAW OF EVIDENCE. [PAET H.
almost aniversally those of implied authority, turning upon the
degree in which the husband permitted the wife to participate,
either in the transaction of his affairs in general, or in tire par-
ticular matter in question. Where he sues for her wages, the
fact that she earned them does not authorize her to bind him by
her admissions of payment ; ^ nor can her declarations affect him,
wliere he sues with her in her right; for in these, and similar
cases, the right is his own, though acquired through her instru-
mentality.^ But in regard to the inference of her agency from
circumstances, the question has been left to the jury with great
latitude, both as to the fact of agency, and the time of the admis-
sions. Thus, it has been held competent for them to infer authority
in her to accept a notice and direction, in regard to a particular
transaction in her husband's trade, from the circumstance of her
being seen twice in his counting-room, appearing to conduct his
business relating to that transaction, and once giving orders to
the foreman.^ And in an action against the husband, for goods
furnished to the wife, while in the country, where she was occa-
sionally visited by him, her letter to the plaintiff, admitting the
debt, and apologizing for the non-payment, though written several
years after the transaction, was held by Lord Ellenborough suffi-
cient to take the case out of the statute of limitations.^
§ 186. The admissions of attorneys of record bind their clients,
in all matters relating to the progress and trial of the cause. But,
to this end, they must be distinct and formal, or such as are
termed solerdn admissions, made for the express purpose of allevi-
ating the stringency of some rule of practice, or of dispensing with
the formal proof of some fact at the trial. In such cases, they are
in general conclusive ; and may be given in evidence, even upon
a new trial.^ But other admissions, which are mere matters of
1 Hall V. Hill, 2 Str. 1094. An au- pened before the marriage, receivable after
tboritv to the wife to conduct the ordinary his death, to affect the riglits of the survi-
busiix'ss of the sliop in her husband's ving wife. Smith n. Scudder, 11 Serg. &
absence does not authorize her to bind R. 325.
hiui by an admission, in regard to the ^ Plimmer i". Sells, 3 JNev. & M. 422.
tenancy or the rent of the shop. Meredith And see Riley w. Suydam, 4 Barb. s. 0.
V. Fciotner, 11 M. & \V. 202; [Jordan v. R. 222.
T-Iubbard, 26 Ala. 433.] * Gregory v. Parker, 1 Campb. 394;
2 Albani;. Pritchet,6T. R. 680; Kelley Palethorp v. Fm-nish, 2 Esp. 511, note.
V. Small, 2 E.-<p. 716; Denn o. White, 7 See also Clifford v. Burton, 1 Bing. 199;
T. fi. 112, as to her admission of a tres- 8 iMore, 16, s. c. ; Petty v. Anderson, 3
pass. Ilodgkinson v. Fletclier, 4 Campb. Bing. 170; Cotes v. Davis, 1 Campb. 485.
70. Neitlier are his admissions, as to <> Doe v. Bird, 7 C. & P. 6 ; Langley v.
facts respecting lier property, which hap- Ld. Oxford, 1 M. & W. 508
CHAP. XI.] OF ADMISSIONS. 215
conversatiou with an attorney, though they relate to the facts in
controversy, cannot be received in evidence against his client.
The reason of the distinction is found in the nature and extent of
the authority given ; the attorney being constituted for the man-
agement of the cause in court, and for nothing more.^ If the
admission is made before suit, it is equally binding, provided it
appear that the attorney was already retained to appear in the
cause.2 But in the absence of any evidence of retainer at that
time in the cause, there must be some other proof of authority to
make the admission.^ Where the attorney is already constituted
in the cause, admissions made by his managing clerk or his agent
are received as his own.*
§ 18T. We are next to consider the admissions of a principal,
as evidence in an action against the surety, upon his collateral
undertaking. In the cases on this subject the main inquiry has
been, whether the declarations of the principal were made during
the transaction of the business for which the surety was bound,
so as to become part of the res gestae. If so, they have been held
admissible ; otherwise not. The surety is considered as bound
only for the actual conduct of the party, and not for whatever he
might say he had done ; and therefore is entitled to proof of his
conduct by original evidence, where it can be had ; excluding all
declarations of the principal, made subsequent to the act, to which
they relate, and out of the course of his official duty. Thus,
where one guaranteed the payment for such goods as the plaintiffs
should send to another, in the way of their trade; it was held,
that the admissions of the principal debtor, that he had received
goods, made after the time of their supposed delivery, were not
receivable in evidence against the surety.^ So, if one becomes
surety in a bond, conditioned for the faithful conduct of another
as clerk, or collector, it is held, that, in an action on the bond
against the surety, confessions of embezzlement, made by the
1 Young V. Wright, 1 Campb. 139, 141 ; Griffiths v. Williams, 1 T. R. 710 ; Trus-
Perkins v. Hawkshaw, 2 Stark. R. 239 ; love v. Burton, 9 Moore, 64. As to the
Elton V. Larkins, 1 M. & Rob. 196 ; Doe extent of certain admissions, see Holt v.
V- Bird, 7 C. & P. 6; Doe v. Richards, 2 Squire, Ry. & M. 282; Marshall v. Cliff,
(J. & K. 216; Watson v. King, 8 M. G. & 4 Campb. 133. The admission of the due
Sc. 608. execution of a deed does not preclude the
2 Marshall v. Cliff, 4 Campb. 133. party from taking advantage of a variance.
8 Wagstaff «. Wilson, 4 B. & Ad. 339. Goldie v. Shuttleworth, 1 Campb. 70.
* Taylor v. Williams, 2 B. & Ad. 845, « Evans v. Beattie, 5 Esp. 26; Bacon
856; Standage v. Creighton, 5 C. & P. v. Chesney,.l Stark. R. 192; Longeu-
406: Taylor v Ecrster, 2 C & P. 195; ecker v. Hyde, 6 Binn. 1.
216 LAW OP EVIDENCE. fPABT II.
principal after his dismissal, are not admissible in evidence;^
though, with regard to entries made in the course of his duty, it
is otherwise.^ A judgment, also, rendered against the principal,
may be admitted as evidence of that fact, in an action against the
surety.^ On the other hand, upon the same general ground it
has been held, that, where the surety confides to the principal
the power of making a contract, he confides to him the power of
famishing evidence of the contract ; and that, if the contract is
made by parol, subsequent declarations of the principal are admis-
sible in evidence, though not conclusive. Tiius, where a husband
and wife agreed, by articles, to live separate, and C, as trustee
and surety for the wife, covenanted to pay the husband a sum
of money, upon his delivering to the wife a carriage and horses
for her separate use ; it was held, in an action by tlie husband for
the money, that the wife's admissions of the receipt by her of the
can-iage and horses were admissible.* So, where A guaranteed
the performance of any contract that B might make with C, the
admissions and declarations of B were held admissible against A,
to prove the contract.^
§ 188. But where the surety, being sued for the default of the
principal, gives him ywtiee of the pendency of the suit, and requests
Mm to defend it ; if judgment goes against the surety, the record
is conclusive evidence for him, in a subsequent action against the
principal for indemnity ; for the principal has thus virtually become
party to it. It would seem, therefore, that in such case the dec-
larations of the principal, as we have heretofore seen, become
admissible, even though they operate against the surety.^
§ 189. The admissions of one person are also evidence against
another, in respect of privity between them. The term privity
denotes mutual or successive relationship to the same rights of
property ; and privies are distributed into several classes, accord-
ing to the manner of this relationship. Thus, there are privies in
estate, as, donor and donee, lessor and lessee, and joint-tenants ;
1 Smith V. Whittingham, 6 C, & P. 78. ^ Whitnash v. George, 8 B. & C. 556 ;
See also Goss v. Watlington, 3 B. & B. Middleton v. Melton, 10 B, & C. 317 ;
132 ; Cutler v. Newlin, Manning's Digest, McGahey v. Alston, 2 M. & W. 213, 214.
N. P. 137, per Holroyd, J., in 1819 ; 8 Drumraond v. Prestman, 13 Wheat.
Bawes v. Shedd, 15 Mass. 6, 9 ; Foxcroft 515.
V. Nevins, 4 Greenl. 72; Hayes v. Seaver, * Penner v. Lewis, 10 Johns. 38.
7 Greenl. 237 ; Respublica v. Davis, 3 ^ Meade v. McDowell, 5 Binn. 195.
Yeates, 128 ; Hotohkiss v. Lyon, 2 Blackf. « See supra, % 180, note (8), and cases
222; Shelby v. The Governor, &c., Id. there cited. [See Powers v. Nash, 37
289 ; Beall v. Beck, 8 Har. & McHen. 242. Maine, 322, |
CHAP. XI.J OP ADMISSIONS. 217
privies in blaod, as, heir and ancestor, and coparceners ; privies
in representation, as, executors and testator, administrators and
iatestate ; privies in law, where the law, without privity of blood
or estate, casts the land upon another, as by escheat. All these
are more generally classed into privies in estate, privies in blood,
and privies in law.^ The ground upon which admissions bind
those in privity with the party making them is, that they are
identified in interest ; and, of course, the rule extends no farther
than this identity. The cases of coparceners and joint-tenants
are assimilated to those of joint-promisors, partners, and others
having a joint interest, which have already been considered.^ In
other cases, where the party, by his admissions, has qualified his
own right, and another claims to succeed him as heir, executor,
or the like, he succeeds only to the right, as thus qualified, at the
time when his title commenced ; and the admissions are receivable
in evidence against the representative, in the same manner as
they would have been against the party represented. Thus, the
declarations of the ancestor, that he held the land as the tenant
of a third person, are admissible to show the seisin of that person,
in an action brought by him against the heir for the land.^ Thus,
also, where the defendant in a real action relied on a long posses-
sion, he has been permitted, in proof of the adverse character of
the possession, to give in evidence the declarations of one under
whom the plaintiff claimed, that he had sold the land to the person
under whom the defendant claimed.* And the declarations of an
intestate are admissible against his administrator, or any other
claiming in his right.^ The declarations, also, of the former
1 Co. Lit. 271a; Carver v. Jackson, 4 erley's case, 4 Co. 123, 124; mpra, §§ 19,
Peters, 1, 83; "Wood's Inst. L. L. Eng. 20, 23, 24. [* Declarations by a former
236 ; Tomlin's Law Diet, in Verb. Priv- owner of property under wliom the party
ies. But the admissions of executors and claims title are, in general, evidence, if
administrators are not receivable against made during the existence of his title,
their co-executors or co-administrators. Hayward Rubber Co. v. Duncklee, 30 Vt.
Elwood V. Deitendorf, 5 Barb. s. c. R K. 29. See also Wheeler v. McCorristen,
398. Otlier divisions have been recog- 24 111. 210; Norton v. Kearney, 10 Wis.
nized ; namely, privity in tenure between 443.]
landlord and tenant; privity in contriict ^ Supra, §§ 174, 180.
alone, or the relation between lessor and ' Doe v. Pettett, 5 B. & Ad. 223 ; 2
lessee, or heir and tenant in dower, or by Poth. on Obi. by Evans, p 2S4 ; supra,
the courtesy, by the covenants of the latter, §§ 108, 109, and cases there cited,
after he has assigned his term to a stran- * Brattle Street Church ii. Hubbard, 2
ger ; privity in estate alone, between the Met. 363. And see Podgett v'. Lawrence,
lessee ami the grantee of the reversion ; 10 Paige, 170 ; Dorsey v. Dorsey, 8 H. &
and privity in both estate and contract, J. 410; Clary v. Grimes, 12 G. & J. 31.
as between lessor and lessee, ftc. ; but * Smith v. Smith, 3 Bing. n. c. 29;
these lire foreign from our present pur- Ivat v. Pinch, 1 Taunt. 141
pos(!. See Walker's case. 3 Co. 23; Bev-
TOL 1 19
218 LAW OF EVTDBNOB. [PART II.
occupant of a messuage, in respect of which the prensSnt occupant
claimed a right of common, because of vicinage, are admissible
eyidence in disparagement of the right, they being made during
his occupancy ; and, on the same principle, other contemporaneous
declarations of occupiers have been admitted, as evidence of the
nature and extent of their title, against those claiming in privity
of estate.^ Any admission by a landlord in a prior lease, which
is relative to the matter in issue, and concerns the estate, has also
been held admissible in evidence against a lessee who claims by
a subsequent title.^
§ 190. The same principle holds in regard to admissions made hy
the assignor of a personal contract or chattel, previous to the as-
signment, while he remained the sole proprietor, and where the
assignee must recover through the title of the assignor, and suc-
ceeds only to that title as it stood at the time of its transfer. In
such case, he is bound by the previous admissions of the assignor,
in disparagement of his own apparent title. But this is true only
where there is an identity of interest between the assignor and
assignee ; and such identity is deemed to exist not only where
the latter is expressly the mere agent and representative of the
former, but also where the assignee has acquired a title with
actual notice of the true state of that of the assignor, as quahfied
by the admissions in question, or where he has purchased a de-
1 Walker v. Broadstock, 1 Esp. 458 ; v. Carrington, 1 C. & P. 329, 380, n. ;
Doe V. Austin, 9 Bing. 41 ; Davies v. Maddison v. Nuttal, 6 Bing. 226. So, the
Pierce, 2 T. E. 53 ; jSoe v. Rickarby, 5 answer of a former rector. De Wlielp-
Esp. 4 ; Doe v. Jones, 1 Campb. 367. dale v. Milburn, 5 Price, 485. An answer
Ancient maps, books of sm-vey, &c., in chancery is also admissible in evidence
though mere private documents, are fre- against any person actually claiming un-
quently admissible on this ground, where der the party who put it in ; and it has
there is a privity in estate between the been held prima facie evidence against
former proprietor, under whose direction persons generally reputed to claim under
they were made, and the present claim- him, at least so far as to call upon them to
ant, against whom they are offered. Bull, show another title from a stranger. Earl
N. P. 283; Brigman v. Jennings, 1 Ld. of Sussex v. Temple, 1 Ld. Raym. 310;
Raym. 734; [supra, § 145, note.] So, as Countess of Dartmouth v. Roberts, 16
to receipts for rent, by a former grantor, East, 334, 339, 340. So, of other declara-
under whom both parties claimed. Doe tions of the former party in possession,
V. Seaton, 2 Ad. & El. 171. which would have been good against him-
2 Crease v. Barrett, 1 Crompt. Mees. self, and were made while he was in pos-
& R. 919, 932. See also Doe v. Cole, 6 session. Jackson v. Bard, 4 Johns. 230,
C. & P, 359, that a letter written by a for- 234 ; Norton v. Pettibone, 7 Conn. 319 ;
mer vicar, respecting the property of the Weidman v. Kohr, 4 Serg. & R. 174 ; su-
vicarage, is evidence against his successor, pra, §§ 23, 24. [* The declarations of the
in an ejectment for the same property, in intestate are evidence against his admin-
right of his vicarage. The receipts, also, istrator, as a privy by representation,
of a vicar's lessee, it seems, are admissible upon the question of having made a dona-
against the vicar, in proof of a modus, by tio mortis causa. Smith v. Maine, 25 Barb,
reason of the privity between them. Jones 33.]
CHAP. XI.]
OP ADMISSIONS.
219
mand already stale, or otherwise infected with circumstances of
suspicion.^ Thus, the declarations of a former holder of a prom-
issory note, negotiated before it was overdue, showing that it
was given without consideration, though made while he held the
note, are not admissible against the indorsee ; for, as was subse-
quently observed by Parhe, J., " the right of a person, holding by
a good title, is not to be cut down by the acknowledgment of a
former holder, that he had no title." ^ But in an action by the
indorsee of a bill or note dishonored before it was negotiated,
the declarations of the indorser, made while the interest was in
him, are admissible in evidence for the defendant.^
1 Harrison v. Vallance, 1 Bing. 38 ;
Bayley on Bills, by Piiillips and Sewall,
pp. 502, 503, and notes (2d Am. edit.);
Gibblehouse v. Strong, 3 Rawle, 437;
Hatch V. Dennis, 1 Fairf. 244 ; Snelgrove
V. Martin, 2 McCord, 241, 243. [The
declarations and admissions of an assignor
of personal property, as a patent right,
made after he has parted with his interest
in it, are inadmissible either to show a
want of title in him, or to affect the qual-
ity of the article, or to impair the right of
the purchaser in any respect. By Nelson,
•J.. Many v. Jagger, 1 Blatchf. C. C. K.
372, 376.]
2 Barough v. "White, 4 B. & C. 325,
explained in Woolway v. Eowe, 1 Ad. &
El. 114, 116; Shaw a. Broom, 4 D. & R.
730; Smith v. De Wruitz, Ey. & M. 212;
Beauchamp v. Parry, 1 B. & Ad. 89 ;
Hackett v. Martin, 8 Greenl. 77; Parker
V. Grout, 11 Mass. 157, n. ; Jones v. Win-
ter, 13 Mass. 304 ; Dunn v. Snell, 15 Mass.
481; Paige v. Cagwin, 7 Hill, N. Y. R.
361. In Connecticut, it seems to have been
held otherwise. Johnson v. Blackman,
11 Conn. 342; Woodruff w. Westcott, 12
Conn. 134. So, in Vermont, Sargeant v.
Sargeant, 3 Washb. 371. [The statements
of an insolvent debtor, whether made be-
fore or after a sale, alleged to be fraudu-
lent, as to the value of the property sold,
and of his other property, are inadmissible
against his assignee in insolvency, to show
that the sale was in good faith in a suit by
the assignee against the purchaser of said
property to recover its value. Heywood
V. Reed, 4 Gray, 574. See also Jones v.
Church, &c., 21 Barb, 161.1 [* As a gene-
ral rule the declarations of the assignor in
the ease of an alleged fraudulent sale, are
not admissible evidence against the as-
signee, unless made before the assign-
ment, and with a view to show its pur-
pose, so as to form part of the res gestce.
But if made wliile the assignor remained
in possession, although after the executiou
of the assignment, they are held competent
to characterize the transaction. Adams
V. Davidson, 10 N. Y. Ct. App. 309. And
where a combination between the assignor
and assignee is previously estabUshed, the
declarations of the assignor will be evi-
dence against the assignee to the fullest
extent, although made after the assign-
ment. Cuyler v. McCartney, 33 Barb.
165.]
3 Bayley on Bills, 502, 503, and notes
(.2d. Am. ed. by PhilUps & Sewall), Pocock
V. Billings, Ry. & M. 127. See also Story
on Bills, § 220; Chitty on Bills, 650 (8th
edit.); Hatch v. Dennis, 1 Fairf. 249;
Shirley v. Todd, 9 Greenl. 83. [In a suit
against the maker of a promissory note
by one who took it when overdue, the
declarations of a prior holder, made while
he held the note, after it was due, are
admissible in evidence to show payment
to such prior holder, or any riglit of set-off
which the maker had against liira. But
such declarations, made by such holder
before he took the note are inailmissible.
So such declarations, made by such holder
after assigning the note to one from whom
the plaintiff since took it, are inadmissible
unless such assignment was conditioned
to be void upon the payment to tlie as-
signor of a less sum than the amount due
on the note, in which case such declara-
tions are admissible in evidence for the
defendant to the extent of the interest
remaining in such prior holder. Bond v.
Fitzpatrick, 4 Gray, 89, 92; Svlve&ter
V. Crapo, 15 Pick. 92 ; Fisher v. Tnie, 38
Maine, 534; McLaiiathan v. Patlen, n9
lb. 142; Scammon v. Scamnion, 33 N. II.
52, 58 ; Criddle v. Criddle, 21 Mis. 522.]
[*See Jermain v, Denniston, 6 N. Y. Ct.
App. 276; Booth v. Swezey, 8 Id. 276;
Tousley v. Barry, 16 Id. 497. Tlie prac-
tice in the different states, in regard to
admitting the declarations of the owner ol
220 LAW OF EYIDBNCE. [PABT II.
§ 191. These admissions by third persons, as they derive their
value and legal force from the relation of the party making them
to the property in question, and are taken as parts of the res gestce,
may he proved hy any competent witness who heard them, without
calling the party by whom they were made. The question is,
whether he made the admission, and not merely, whether the fact
is as he admitted it to be. Its truth, where the admission is not
conclusive (and it seldom is so), may be controverted by other
testimony ; even by calling the party himself, when competent ;
but it is not necessary to produce him, his declarations, when
admissible at all, being admissible as original evidence, and not
as hearsay .1
§ 192. We are next to consider the time and circumstances of
the admission. And here it is to be observed, that confidential
overtures of pacification, and any other oiFers or propositions
between litigating parties, expressly stated to be made without
prejudice, are excluded on grounds of public policy.^ For without
this protective rule, it would often be difficult. to take any step
towards an amicable compromise or adjustment. A distinction
is taken between the admission of particular facts, and an offer of
a sum of money to buy peace. For, as Lord Mansfield observed,
a chose in action, while holding the same, [In Jones v. Foxall, 13 Eng. Law & Eq.
it not being negotiable, or if so, being at 140, 145, Sir John Romilly, Master of the
the time overdue, to the effect that the Eolls, said : " I shall, as far as I am able,
same had been paid, or is otherwise in- in all cases, endeavor to suppress a prao-
valid, and this as against a subsequent tice which, when I was first acquainted
bona fide owner, is not uniform. See Mil- with the profession, was rarely, if ever,
ler V. Bingham, 29 Vt. R. 82, wliere such ventured upon ; but which, according to
declarations were held admissible. The my experience, has been common of late,
cases cited above from New York show namely, that of attempting to convert of-
that such decharations are not there ad- fers of compromise into .admissions and
missible. Tlie English rule seems in acts prejudicial to the parties maldng
favor of receiving such declarations, as to them. If tliis were permitted, the effect
the title of all personalty. Harrison v. would be, that no attempt to compromise
Vallance, 1 Bing. 45 ; Shaw v. Broom, 4 a suit would ever be made. If no reser-
Dow. & Ry. 730; Poeock v. Billing, 2 vation of the parties who make an offer
Bing. 20'J. But see Carpenter v. Hollis- of compromise could prevent that offer and
ter, 13 Vt. R. 552, where the question, as the letters from being afterwards given in
to real estate, is fully discussed.] evidence, and made use of against them,
1 Supra, §§ 101, 113, 114, and cases' it is obvious that no such letters would be
there cited ; Clark v. Hougham, 2 B. & written or offers made. In my opinion,
C. 14'J ; Mountstephen v. Brooke, 3 B. such letters and offers are admissible for
& Aid. 141 ; Woolway v. Rovve, 1 Ad. & one purpose only, i.e., to show that an at-
El. 114 ; I'aySon v. Good, 3 Kerr, 272. tempt has been made to compromise the
'^ Cory V. Bretton, 4 C. & P. 462 ; suit, which may be sometimes necessary ;
Healey v. Thatclier, 8 C. & P. 388. Com- as, for instance, in order to account for
munications between the clerk of the lapse of time, but never to fix the persons
plaintiff's attorney, and the attorney of making them with admissions contained
the det'endimt, with a view to a comprom- in such letters, and I shall do all I can to
ise, luive been held privileged, under this discourage this, which I consider to be a
rule. Jardine v. Sheridan, 2 C. & K. 24. very injurious practice."]
CHAP. XI.] OP ADMISSIONS. 221
it must be permitted to men to buy their peace without prejudice
to them, if the offer should not succeed; and such offers are
made to stop Utigation, without regard to the question whether
any thing is due or not. If, therefore, the defendant, being sued
for £100, should offer the plaintiff £20, this is not admissible in
evidence, for it is irrelevant to the issue ; it neither admits nor
ascertains any debt ; and is no more than saying, he would give
<£20 to be rid of the action.^ But in order to exclude distinct
admissions of facts, it must appear, either that they were expressly
made without prejudice, or at least, that they were made under
the faith of a pending treaty, and into which the party might have
been led by the confidence of a compromise taking place. But
if the admission be of a collateral or indifferent fact, such as the
handwriting of the party, capable of easy proof by other means,
and not connected with the merits of the cause, it is receivable,
though made under a pending treaty.^ It is the condition, tacit
or express, that no advantage shall be taken of the admission, it
being made with a view to, and in furtherance of, an amicable
adjustment, that operates to exclude it. But if it is an inde-
pendent admission of a fact, merely because it is a fact, it will be
received ; and even an offer of a sum, by way of compromise of
a claim tacitly admitted, is receivable, unless accompanied with a
caution that the offer is confidential.^
1 Bull. N. p. 236 ; Gregory v. Howard, relaxed his own rule, saying that in future
3 Esp. 113, Ld. Kenyon ; Marsh v. Gold, he should receire evidence of all admis-
2 Pick. 290 ; Gerrish v. Sweetser, 4 Pick, sions, such as the party would be obliged
374, 377 ; "Wayman v. Hilliard, 7 Bing. to make in answer to a bill in equity ; re-
101 ; Gumming v. French, 2 Campb. 106, jecting none but such as are merely cou-
n. ; Glassford on Evid. p. 336. See Moly- cessions for the sake of making peace and
neaux v. Collier, 13 Georgia R. 406. But getting rid of a suit. Slack v. Buchanan,
an offer of compromise is admissible, Peake's Gas. 5, 6 ; Tait on Evid. p. 293.
where it is only one step in the proof that A letter written by the adverse party,
a compromise has actually been made, "without prejudice," is inadmissible.
Collier v. Nokes, 2 C. & K. 1012. Healey v. Thatcher, 8 C. & P. 388. [*But
2 Waldridge v. Kenison, 1 Esp. 143, the writer of such a letter is not precluded
per Lord Kenyon. The American courts from using it in his own favor. Williams
have gone farther, and held, that evidence v. Thomas, 2 Drew. & Sm. 29.]
of the admission of any independent fact ^ Wallace v. Small, 1 M. & M. 446 ;
is receivable, though made during a treaty Watts v. Lawson, Id. 447, n. ; Dickinson
of compromise. See Mount v. Bogert, v. Dickinson, 9 Met. 471; Thompson v.
Anthon's Rep. 190, per Thompson, C. J. ; Austen, 2 Dowl. & Ry. 358. In this case
Murray v. Coster, 4 Cowen, 635 ; Puller Bayley, J., remarked that the essence of
V. Hampton, 5 Conn. 416, 426 ; Sanborn an oifer to compromise was, tliat the party
V. Neilson, 4 New Hamp. R. 501, 508, 509 ; making it was wilUng to submit to a sacri-
Delogny v. Rentoul, 1 Martin, l75 ; Mar- fice, and to make a concession. Hartford
Tin V. Richmond, 3 Den. 58 ; Cole w. Cole, Bridge Co. v. Granger, 4 Conn. 148 ; Ger-
84 Maine, 542 ; | Harrington v. Lincoln, 4 rish v. Sweetser, 4 Pick. 374, 377 ; Murray
Gray, 563, 567 ; Corinth v. Lincoln, 34 v. Coster, 4 Cowen, 617, 635. Admissions
Maine, 310.) Lord Kenvon afterwards made before an arbitrator are receivable
19»
222 LAW OP EVIDENCE, [PAET II
§ 193. In regard to admissions made under circumstances of
constraint, a distinction is taken between civil and criminal cases ;
and it has been considered, that on the trial of civil actions,
admissions are receivable in evidence, provided the compulsion
under which they are given is legal, and the party was not imposed
upon, or under duress.^ Tims, in the trial of C'oUett v. Ld. Keith,
for taking the plaintiff's ship, the testimony of the defendant,
given as a witness m an action between other parties, in which
he admitted the taking of the ship, was allowed to be proved
against him; though it appeared that, in giving his evidence,
when he was proceeding to state his retisons for taking the ship,
Lord Kenyon had stopped him by saying, it was unnecessary for
him to vindicate his conduct.^ The rule extends also to answers
voluntarily given to questions improperly asked, and to which the
witness might successfully have objected. So, the voluntary
answers of a bankrupt before the commissioners, are evidence in
a subsequent action against the party himself, though he might
have demvirred to the questions, or the whole examination was
irregular ; ^ unless it was obtained by imposition or duress.*
§ 194. There is no difFerence, in regard to the admissibility of
this sort of evidence, between direct admissions and those which
are incidental, or made in some other connection, or involved in
the admission of some other fact. Thus, where in an action
against the acceptor of a bill, his attorney gave notice to the
plaintiff to produce at the trial all papers, &o.,. which had been
received by him relating to a certain bill of exchange (describing
it), which "was accepted by the said defendant;" this was held
in a subsequent trial of the cause, the to the jury; but that, if what was said
reference having proved ineffectual. Slaclc bore in any way on the issue, he was
V. Bucliannan, Peake s Cas. 5. See also bound to receive it as evidence of the fact
Gregory v. Howard, 3 Esp. 113. Collier itself. See also Milward v. Forbes, 4 Esp.
V. Nokes, 2 C. & K. 1012. [Where a party 171.
sued on a note offered to pay one half in ^ Stockfleth v. De Tastet, 4 Campb.
cash, and one half by a new note with an 10 ; Smith v. Beadnell, 1 Campb. 30. If
indorser, and admitted at the same time the commission has been perverted to im-
that he owed the note, it was held that proper purposes, the remedy is by an
the admission might be used against him. application to have the examination taken
Snow V. Batchelder, 8 Cush. 513.] from the files and cancelled. 4 Campb.
1 [The rule excluding confessions made 11, per Ld. Ellenborough ; Milward v-
under undue influence applies only to the Porbes, 4 Esp. 171 ; 2 Stark. Evid. 22.
confessions of a person on trial in a crimi- * Robson v. Alexander, 1 iVIoore & P.
nal case. Newhall v. Jenkins, 2 Gray, 448; Tucker v. Barrow, 7 B. & C. G23.
562.] But a legal necessity to answer the ques-
2 CoUett V. Ld. Keith, 4 Esp. 212, per tions, under peril of punishment for con-
Le Blanc, J. ; who remarked, that the tempt, it seems, is a valid objection to tlio
manner in which the evidence had been admission of the answers in evidence, in a
ubtained might be matter of observation ci'imiual prosecution. Rex v. Britton. 1
CHAP. XI.] OF ADMISSIONS. 223
primd facie evidence, by admission that he accepted the biil.^ So,
in an action by the assignees of a bankrupt, against an auctioneer,
to recover the proceeds of sales of a bankrupt's goods, the defend-
ant's advertisement of the sale, in -which he described the goods
as " the property of D., a bankrupt," was held a conclusive admis-
sion of the fact of bankruptcy, and that the defendant was acting
under his assignees.^ So, also, an undertaking by an attorney,
" to appear for T. and R., joint owners of the sloop ' Arundel,' "
was held sufficient primd facie evidence of ownership.^
§ 195. Other admissions are implied from asswmed character,
language, and conduct, which, though heretofore adverted to,* may
deserve further consideration in this place. Where the existence
of any domestic, social, or of&cial relation is in issue, it is quite
clear that any recognition, in fact, of that relation, is primd facie
evidence against the person making such recognition, that the
relation exists.^ This general rule is more frequently applied
against a person who has thus recognized the character or office
of another ; but it is conceived to embrace, in its principle, any
representations or langniage in regard to himself. Thus, where
one has assumed to act in an official character, this is an admis-
sion of his appointment or title to the office, so far as to render
him liable, even criminally, for misconduct or neglect in such
office.^ So, where one has recognized the oflBcial character of
another, by treating with him in such character, or otherwise, this
is at least primd fade evidence of his title, against the party thus
r^ecognizing it.'' So, the allegations in the declaration or plead-
M. & Rob. 297. The case of Rex. v. Mer- officer, for returning f^lse musters ; Rex
ceron, 2 Stark. R. 366, which seems to the v. Kerne, 2 St. Tr. 957, 960 ; Rex v.
contrary, is questioned and explained by Brommick, Id. 961, 962 ; Rex v. Atlcins,
Lord Tenterden, in Hex v. Gilham, 1 Id. 964, wliich were indictments for higii
Mood. Cr. Cas. 203. See infra, §§ 225, treason, being popish priests, and remain-
451 ; Regina v. Garbett, 1 IJenis. C. C. ing forty days within tlie kingdom ; Hex
236. ". Borrett, 6 C. & P. 124, an indictment
1 Holt V. Squire, Ry. & M. 282. against a letter-carrier, for embezzlement ;
2 Maltby v. Christie, 1 Esp. 342, as ex- Trowbridge v. Baker, 1 Cowen, 251,
pouniled by Lord EHenborough, in Ran- against a toll-gatherer, for penalties ; Lis-
kin 0. Horner, 16 East, 193. ter v. Priestley, Wightw. 67, against a col-
■'• Marshall j>. Cliff, 4 Campb. 133, per lector, for penalties. See also Cross v.
Ld. Ellenborough. Kaye, 6 T. R. 663; Lipscombe v. Holmes,
■* Snim, § 27. 2 Campb. 441 ; Radford v. Mcintosh, 3 T.
6 Dickinson v. Coward, 1 B. & A. 677, E. 632.
679, per Ld. Ellenborough ; Radford, q. t. ' Peacock v. Harris, 10 East, 104, by a
ij. Mcintosh, 3 T. R. 632. renter of turnpike tolls, for arrearages of
" Bcvan v. Williams, 3 T. R. 635, per tolls due; Radford v. Mcintosh, 3 T. R.
Ld. Mansfield, in an action against a cler- 632, by a farmer-general of the post-horse
gyman, for non-residence ; Rex v. Gard- duties, against a letter of horses, for cer-
ner, 2 Campb. 513, against a military tain statute penalties ; Pritchard i). Walker,
224 LAW OP EVIDENCE. [PAET II.
ings in a suit at law have been held receivable in evidence against
the party, in a subsequent suit between him and a stranger, as
his solemn admission of the truth of the facts recited, or of his
understanding of the meaning of an instrument ; though the judg-
ment could not be made available as an estoppel, unless between
the same parties, or others in privity with them.^
§ 196. Admissions implied from the conduct of the party are
governed by the same principles. Thus, the suppression of docu-
ments is an admission that their contents are deemed unfavorable
to the party suppressing them.^ The entry of a charge to a par-
ticular person, in a tradesman's book, or the making-out of a bill
of parcels in his name, is an admission that they were furnished
on his .credit.^ The omission of a claim by an insolvent, in a
schedule of the debts due to him, is an admission that it is not
due.* Payment of money is an admission against the payer, that
the receiver is the proper person to receive it ; but not against the
receiver, that the payer was the person who was bound to pay it ;
for the party receiving payment of a just demand may well assume,
without inquiry, that the person tendering the money was the
person legally bound to pay it.^ Acting as a bankrupt, under a
commission of bankruptcy, is an admission that it was duly issued.^
Asking time for the payment of a note or bill is an admission of
3 C. & P. 212, by the clerk of the trustees Ad. & El. 695, 703, per Ld. Denman, C.
of a turnpike road, against one of the J. See farther, Divoll v. Leadbetter, 4
trustees ; Dickinson v. Coward, 1 B. & A. Pick. 220 ; Crofton v. Poole, 1 B. & Ad.
677, by the assignee of a bankrupt, against 568 ; Eex v. Barnes, 1 Stark. R. 243 ;
a debtor, who had made the assignee a Phil. & Am. on Bvid. 369, 370, 371; 1
partial payment. In Berryman v. Wise, Phil. Erid. 351, 352.
4 T. R. 366, which was an action by an ^ Tiley v. Cowling, 1 Ld. Eaym. 744;
attorney for slander, in charging him with Bull. N. P. 243, s. c. See supra, §§ 171,
swindling, and threatening to have him 194; infra, §§ 205, 210, 527a, 555; Rob-
struck off the roll of attorneys, the court inson v. Swett, 3 Greenl. 316; Wells v.
held that this threat imported an admis- Compton, 3 Rob. Louis. R. 171 ; Parsons
sion that the plaintiff was an attorney, v. Copeland, 33 Maine, 370 ; [Williams v.
Cummin v. Smith, 2 Serg. & R, 440. But Cheney, 3 Gray, 215 ; Judd v. Gibbs, lb.
see Smith v. Taylor, 1 New R. 196, in 539. See Church v. Shelton, 2 Curtis, C.
which the learned judges were equally C. 271 ; State v. Littlefleld, 3 R. I. 124.1
divided upon a point somewhat similar, ^ James v. Biou, 2 Sim. & Stu. 600,
in the case of a physician ; but in the for- 606 ; Owen v. Flack, Id. 606.
mer case, the roll of attorneys was ex- ^ gtorr et al. v. Scott, 6 C. & P. 241 ;
pressly mentioned, while in the latter, the Thompson v. Davenport, ? B. & C. 78, 86,
plaintiff was merely spoken of as " Doctor 90, 91.
S.," and the defendant had been employed * Nicholls v. Downes, 1 M. & Rob. 13 ;
as his apothecary. If, however, the slan- Hart v. Newman, 3 Campb. 13. See also
der relates to the want of qualifloation, it Tilghman v. Fisher, 9 Watts, 441.
was held by Mansfield, C. J., that the '^ James v. Biou, 2 Sim. & Stu. 600,
plaintiff must prove it ; but not where it 606 ; Cliapman v. Beard, B Anstr 942.
was confined to mere misconduct. 1 New " Like v. Howe, 0 Esp. 20 ; Clark a
R. 207. See to this point, Moises v. Thorn- Clark, lb. 61.
ton, 8 T. R. 303 ; Wilson v. Carnegie, 1
CHAP. XI.] OP ADMISSIONS. 226
the holder's title, and of the signature of the party requesting the
favor ; and the indorsement or acceptance of a note or bill is an
admission of the truth of all the facts which are recited in it.^
§ 197. Admissions may also be implied from the acquiescence of
the party. But acquiescence, to have the effect of an admission,
must exhibit some act of the mind, and amount to voluntary
demeanor or conduct of the party .^ And whether it is acquies-
cence in the conduct or in the language of others, it must plainly
appear that such conduct was fully known, or the language fully
understood by the party, before any inference can be drawn from
his passiveness or silence. The circumstances, too, must be not
only such as afforded him an opportunity to act or to speak, but
such also as would properly and naturally call for some action or
reply, from men similarly situated.^ Thus, where a landlord
quietly suffers a tenant to expend money in making alterations
and improvements on the premises, it is evidence of his consent to
the alterations.* If the tenant personally receives notice to quit
at a particular day, without objection, it is an admission that his
tenancy expires on that day.^ Thus, also, among merchants, it is
regarded as the allowance of an account rendered, if it is not
objected to, without unnecessary delay.® A trader being inquired
for and hearing himself denied, may thereby commit an act of
1 Helmsley v. Loader, 2 Campb. 450 ; he may read his immediate replies. Eoe
Critohlow v. Parry, Id. 182 ; Wilkinson v. v. Day, 7 G. & P. 705. So, it seems, he
Ludwidge, 1 Stra. 648 ; Robinson v. Yar- may prove a prerious conversation with
row, 7 Taunt. 455 ; Taylor v. Croker, 4 the party, to show the motive and inten-
Esp. 187 ; Bass v. Olive, 4 M. & S. 13. tion in writing them. Reay v. Richardson,
See further, Bayley on Bills, by Phillips 2 C. M. & R. 422 ; (Commonwealth v.
& Sewall, p. 496-506 ; Phil. & Am. on Harvey, 1 Gray, 487, 489 ; Boston & W.
Evid. 383, n. (2); 1 Phil. Evid. 364, n. R. R. Corp. v. Dana, lb. 83, 104; Com-
(1), and cases there cited. monwealth u. Kenney, 12 Met. 235 ; Brain-
2 Allen V. McKeen, 1 Sumn. 314 ; Car- ard v. Buck, 25 Vt. 573 ; Corser v. Paul,
ter V. Bennett, 4 Elor. Rep. 340. 41 N. H. 24.]
2 To affect a party with the statements * Doe v. Allen, 3 Taunt. 78, 80 ; Doe
of others, on the ground of his Implied v. Pye, 1 Esp. 366 ; Neale v. Parkin, 1
admission of their truth by silent acqui- Esp. 229. See also Stanley v. White, 14
escence, it is not enough that they were East, 332.
made in his presence ; for if they were ' Doe v. Biggs, 2 Taunt. 109 ; Thomas
given in evidence in a judicial proceeding, v. Thomas, 2 Campb. 647; Doe v. Poster,
he is not at hberty to interpose when and 13 East, 405 ; Oakapple v. Copous, 4 T.
how he pleases, though a party ; and there- R. 361 ; Doe v. Woombwell, 2 Campb
fore is not concluded. Melen v. Andrews, 559.
1 M. & M. 336. See also Allen ». Mc- ^ Sherman v. Sherman, 2 Verm. 276.
Keen, 1 Sumn. 217, 313, 314; Jones v. Hutchins, Ld. Com., mentioned " a second
Morrell, 1 Car. & liir. 266 ; Neile v. Jakle, or third post," as the ultimate period of
2 Car. & Kir. 709 ; Peele v. Merch. Ins. objection. But Lord Hardwicke said, that
Co. 3 Mason, R. 81 ; Hudson v. Harrison, if the person to whom it was sent kept
8H &B. 97; m/ro, §§ 201, 215, 287. If the account " for any length of time, with,
letters are ofiered against a party, it seems ou nuking any objection," it became a
226 ' LAW OP EVIDENCE. [PAET 11.
bankruptcy.^ And generally, where one knowingly avails himself
of another's acts, done for his benefit, this will be held an admis
sion of his obligation to pay a reasonable compensation.^
[*§ 197a. The former rule of evidence, that one's silence
shall be construed as a virtual assent to all that is said in his
presence, is susceptible of great abuse, and calls for a course of
conduct, which prudent and quiet men do not generally adopt.
If that rule be sound to the full extent, as laid down in some of
the early cases, it would be in the power of any evil-disposed per-
son to always ruin his adversary's case, by drawing him into a
compulsory altercation in the presence of chosen listeners, who
would be sure to misrepresent what he said. Nothing could be
more unjust or unreasonable. Hence, in more recent cases, the
rule, in some states, has undergone very important qualifications.
The mere silence of one, when facts are asserted in his presence,
is no ground of presuming his acquiescence, unless the conversa-
tion were addressed to him, under such circumstances as to call for
a reply. The person must be in a position to require the infor-
mation, and he must ask it in good faith, and in a manner fairly
entitling him to expect it, in order to justify any inference from
the mere silence of the party addressed. If the occasion, or the
nature of this demand, or the manner of making it, will reason-
ably justify silence, in a discreet and prudent man, no unfavorable
inference therefrom should, on that account, be made against the
party. And whether the silence be any ground of presumption
against the party will always be a question of law, unless there is
conflict in the proof of the attending circumstances.^ The same
Btated account. Willis v. Jemegan, 2 Atk. ^ Key v. Shaw, 8 Bing. 320.
252. See also Freeland v. Heron, 7 ^ Morris v. Burdett, 1 Campb. 218,
Cranch, 147, 151 ; Murray v. Tolland, 3 where a candidate made use of the hust-
Johns. Ch. 575 ; Tickel v. Short, 2 Ves. ings erected for an election ; Abbott v.
239. Daily entries in a book, constantly Inhabitants of Hermon, 7 Greenl. 118
open to the party's inspection, are admis- where a schoolhouse was -used by the
sioDs against him of the matters therein school district ; Hayden v. Inhabitants of
stated. Alderson v. Clay, 1 Stark. R. Madison, Id. 76, a case of partial payment
405 ; Wiltzie v. Adamson, 1 Phil. Evid. for making a road.
357. See further, Coe v. Hutton, 1 Serg. ' [« Mattocks v. Lyman, 16 Vt. R, 113 •
& R. 398 ; McBride v. Watts, 1 McCord, Vail v. Strong, 10 Id. 457 ; Gale v. Liu-
384 ; Corps v. Robinson, 2 Wash. C. C. coin, 11 Vt. 152. Post, § 199. Where a
K. 388. So, the members of a company person is inqtiired of as to a matter wliich
are chargeable with knowledge of the en- may aifect liis pecuniary interests, he has
tries in their books, made by their agent the right to know whether the party ni,v
in the course of his business, and with king the inquiry is entitled to iiuike it as
their true meaning, as understood by the affecting any interest wliich he represents,
agent. AUen t). Coit, 6 Hill (N. Y.), R. and for the protection of which he rcq uires
218. the information sought. And unless he ia
CHAP. XI.] OP ADMISSIONS, 227
rule obtains as to letters addressed to the party .^ But if the party
consent to give any explanation it becomes evidence, although
drawn from him by a false suggestion.^ And even a plea of " guilty,"
in a criminal proceeding against the party for assault and battery,
will be evidence against him in a civil action for the same.^ But
as a general rule, admissions in the pleadings in one suit will
not be evidence against the party in another suit, unless signed by
him personally, in which case there is no reason why they should
not be so regarded, to the same extent as any other admissions.*
Admissions in the same action for one purpose may be used for
another, or where in assumpsit against two, upon a joint promise,
both pleaded non-assumpsit and one infancy. The plaintiff ad-
mitted the infancy of one defendant upon the record and discon-
tinued as to that defendant. Held, that he could not recover
against the other, since his admission showed conclusively that
there was no joint promise.^ The American practice, however, is
different upon this point. It is here held that the plaintiff may
discontinue as to the infant, and proceed against the other joint
contractors to judgment.^]
§ 198. The possession of documents, also, or the fact of constant
access to them, sometimes affords ground for affecting parties with
an implied admission of the statements contained in them. Thus,
the rules of a club, contained in a book kept by the proper officer,
and accessible to the members ; '' charges against a club, entered
by the servants of the house, in a book kept for that purpose, open
in the club-room ; ^ the possession of letters,^ and the like ; are
circumstances from which admissions by acquiescence may be
inferred. Upon the same ground, the shipping list at Lloyd's,
fairly informed upon these points, he is not ' Alderson v. Clay, 1 Stark. R. 405 ;
bound to give information, and will not be Wiltzie v. Adamson, 1 Phil. Evid. 357.
affected in his pecuniary interests in con- ^ Hewitt v. Piggott, 5 C. & P. 75 ; Rex
sequence of refusal. Hackett v. Callender, v. Watson, 2 Stark. R. 140 ; Home Tooke's
32 Vt. R. 97.] case, 25 St. Tr. 120. But the possession
1 [* Commonwealth v. Jeffreys, 7 Allen, of unanswered letters seems not to be, of
648 ; Siiiiie «. Kastman, 1 Cush. 189. itself, evidence of acquiescence in their
^ Ilijigins V. Dellinger, 22 Mis. 397. contents ; and, therefore, a notice to pro-
^ Bircliard v. Booth, 4 Wis. 67. duce such letters will not entitle the ad-
* Mariauski v. Cairns, 1 Macq. Ho. verse party to give evidence of their entire
Lds. Cas. 212. contents, but only of so much as on other
^ Boyle V. Webster, 17 Q. B. 950. grounds would be admissible. Paiilee v.
* Hartne.ss v. Thompson, 5 Johns. 160 ; Denton, 3 C. & P. 103. And a letter
Tappan i: Abbott, cited Pick. 602 ; Wood- found on the prisoner was held to be no
ward V. IS'ewhall, Id. 500 ; Allen v. Butler, evidence against him of the facts stated in
9 Vt. R. 122.] it, in Rex v. Plumer, Rus. & Ry. C. C.
' Raggett V Musgrave, 2 C. & P. 556. 264 ; [People v. Green, 1 Parker, C. R. 11.]
228 LAW OF EVIDENCE. [PABT II.
stating the time of a vessel's sailing, is held to be primd facie evi-
dence against an underwriter, as to what it contains.^
§ 199. But, in regard to admissions inferred from acquiescence in
the verbal statements of others, the maxim, Qui tacet consentire vide-
tur, is to be applied with careful discrimination. " Nothing," it is
said, " can be more dangerous than this kind of evidence. It
should always be received with caution ; and never ought to be
received at all, unless the evidence is of direct declarations of that
kind which naturally calls for contradiction ; some assertion made
to the party with respect to his right, which, by his silence, he
acquiesces in."^ A distinction has accordingly been taken be-
tween declarations made by a party interested and a stranger ;
and it has been held, that, while what one party declares to the
other, without contradiction, is admissible evidence, what is said
by a third person may not be so. It may be impertinent, and best
rebuked by silence ; but if it receives a reply, the reply is evi-
dence. Therefore, what the magistrate, before whom the assault
and battery was investigated, said to the parties, was held inad-
missible, in a subsequent civil action for the same assault.^ If the
declarations are those of third persons, the circumstances must be
such as called on the party to interfere, or at least such as would
not render it impertinent in him to do so. Therefore, where, in a
real action upon a view of the premises by a jury, one of the chain-
bearers was the owner of a neighboring close, respecting the
bounds of which the litigating parties had much altercation, their
declarations in his presence were held not to be admissible against
him, in a subsequent action respecting his own close.* But the
silence of the party, even where the declarations are addressed to
himself, is worth very little as evidence, where he has no means
of knowing the truth or falsehood of the statement.^
1 Macintosh v. Marshall, 11 M. & W. dence against B. Rex v. Appleby, 3 Stark.
116. E. 33. Nor is a deposition, given in the
'•i 14 Serg. & E. 393, per Duncan, C. J. ; person's presence, in a cause to which he
2 C. & P. 193, per Best, C. J. And see was not a party, admissible against him.
McClenkan v. McMillan, 6 Barr, 366, Melen v. Andrews, 1 M. & M. 336. See
where this maxim is expounded and ap- also Tairlie v. Denton, 3 C. cSb P. 103, per
plied. See also Commonwealth v. Call, Lord Tenterden; Tait on Evidence, p.
21 Pick. 515 ; [Commonwealth v. Kenney, 293. So in the Roman law, " Confe'ssio
12 Met. 235, 237 ; supra, § 197.] facta seu prsesumpta ex taciturnitate, in
8 Child V. Grace, 2 C. & P. 193. aliquo judicio, non nocebit in alio." Mas-
* Moore w. Smith, 14 Serg. & E. 888. cardus De Probat. vol. 1, concl. 348, n. 31
Where A & B were charged with a joint [Larry o. Sherburne, 2 Allen, 35'; Hil-
felony, what A stated before the exami- dreth v. Martin, 3 Allen, 371; Fe'ino v.
ning magistrate, respecting B's participa- "Weston, 31 Vt. 845.]
tion iu toe crime, is not admissible evi- ^ Hayslep v. Gymer, 1 Ad. & El. 162,
CHAP. XI.J OP ADMISSIONS. 229
§ 200. With respect to all verbal admissions, it may be observed
that they ought to be received iviih great caution. The evidence,
consisting as it does in the merq repetition of oral statements, is
subject to much imperfection and mistake; the party himself
either being misinformed, or not liaving clearly expressed his own
meaning, or the witness having misunderstood him. It frequently
happens, also, that the witness, by unintentionally altering a few
ef the expressions really used, gives an effect to tlie statement
completely at variance with wliat the party actually did say.i But
where the admission is deliberately made and precisely identified,
the evidence it affords is often of the most satisfactory nature.^
[* In a somewhat extended experience of jury trials, we have been
compelled to the conclusion, that the most unreliable of all evi-
dence is that of the oral admissions of the party, and especially
where they purport to have been made during the pendency of the
action, or after the parties were in a state of controversy. It is
not uncommon for different witnesses of the same conversation
to give precisely opposite accounts of it ; and in some instances
it will appear, tliat the witness deposes to the statements of one
party as coming from the other, and it is not very uncommon to
find witnesses of the best intentions repeating the declarations of
the party in his own favor as the fullest admissions of the utter
falsity of his claim. When we reflect upon the inaccuracy of
many witnesess, in their original comprehension of a conversation ;
their extreme liability to mingle subsequent facts and occurrences
with the original transactions ; and the impossibility of recollecting
the precise terms used by the party or of translating them by exact
165, per Parke, J. See furttier on the v. Malin, 1 "Wend. 625, 652; Lench v.
subject of tacit admissions, Tlie State v. Lencli, 10 Ves. 517, 518, cited witli ap-
Havvls, 2 Nott & McCord, 301 ; Batturs probation in 6 Johns. Ch. 412, and in
,>. Sellers, 5 Harr. & J. 117, 119. Smith v. Bumham, 3 Sumn. 438; Stone
1 Earle v. Picken, 5 C. & P. 542, note, v. Ramsey, 4 Monroe, 236, 239 ; Myers v.
per Parke, J J Eex v. Simons, 6 C. & P. Baker, Hardin, 544, 549; Perry v. (iei-
510, per Alderson, B. ; Williams v. Wil- beau, 5 Martin, n. s. 18, 19. j.aw v. Mer-
liams, 1 Hagg. Consist. R. 304, per Sir rils, 6 Wend. 268, 277. It is also well
"William Scott ; Hope v. Evans, 1 Sm. & settled that verbal admissions, hastily and
M. Ch. R. 195. Alciatus expresses the inadvertently made witliout investi>;ation,
sense of the civilians to the same effect, are not binding. Salem Bank v. Gfoiices-
where, after speaking of the weight of ju- ter Bank, 17 Mass. 27 ; Barber v. Gingeil,
dicial admissions, " propter majorem certi- 3 Esp. 60. See also Smith v. Burnhara, 3
tudinem, quam in se liabet," he adds — Sumn. 435, 438, 439 ; Cleveland i;. Burton,
" Qua; ratio non liabet locum, quando ista 11 Vermont, R. 138; Stephens v. Vro-
confessio probaretur per testes; imo est man, 18 Barb. 250; Printup v. Mitchell,
minus certa catais probationibus," &c. Al- 17 Geo. 558.
ciat. de Prajsump. Pars. Secund. Col. 682, '^ Rigg v. Curgenven, 2 Wils. 395, 399 ;
n. 6 See supra, §§ 96, 97 ; 2 Poth. on Glassford on Evid. 326 ; Commonwealth
Obi. by Evans, App. No. 16, § 13 ; Malin v. Knapp, 9 Pick. 607, 6(8, per Putnam. J
VOL I 20
230 LAW OP EVIDENCE. [PART H.
equivalents, we must conclude there is no substantial reliance upon
this class of testimony. Tlie fact, too, that in the final trial of
open questions of fact, both sides are largely supported by evi-
dence of this character, in the majority of instances, must lead all
cautious triers of fact greatly to distrust its reliability.]
§ 201. We are next to consider the effect of admissions, when
proved. And here it is first to be observed, that the whole admis-
sion is to be taken toff ether ; for though some part of it may contain
matter favorable to the party, and the object is only to ascertain
that which he has conceded against himself, for it is to this only
that the reason for admitting his own declarations applies, namely,
the great probability that they are true ; yet, unless the whole is
received and considered, the true meEfiiing and import of the part,
which is good evidence against liim, cannot be ascertained. But
though the whole of what he said at the same time, and relating
to the same subject, must be given in evidence, yet it does not
follow that all the parts of the statement are to be regarded as
equally worthy of credit ; but it is for the jury to consider, under
all the circumstances, how much of the whole statement they deem
worthy of belief, including as well the facts asserted by the party
in his own favor, as those making against liim.^
1 Smith V. Blandy, Ry. & M. 257, per wholly distinct tVom those read by the
Best, J. ; Cray v. Halls, lb. cit. per Abbott, adversary, although found in the same
C. J. ; Bermou v. Woodbridge, 2 Doug, answer and pleadings, and the rule is
788 ; Rex «. Clewes, 4 C. & P. 221, per practically the same at law, as when the
Littledale, J. ; McClenkan v. McMillan, 6 adversary reaids one entry in a book, it will
Barr, 366 ; Mattocks v. Lyman, 3 Washb. not justify reading the entire book, unless
98 ; Wilson v. Calvert, 8 Ala. 757 ; Yar- in some way connected with the entry
borough V. Moss, 9 Ala. 882. See supra, read. Abbott, Ch. J., in Catt. v. Howard,
§ 152 ; Dorian v. Douglass, 6 Barb. s. c. 8 Stark. N. P. C. 3. Nor can the party
E. 451. A similar rule prevails in chan- read distinct and disconnected paragraphs
eery. Gresley on Evid. 13. [* The party, in a newspaper, because one hfis been
by reading from an answer in^the case read by his adversary. Darby t>. Ouseley,
to prove the admission of having endorsed 1 H. & N. 1 ; or a series of copies of let^
a promissory note, renders all that portion ters inserted in a copy book, because
of the answer evidence, although embra- one has been read. Sturge v. Buchaiian,
cing obligations of defence. Gildersleeve 2 M. & Rob. 90.] See also the Queen's
D. Ma'i inoy, 5 Duer, 383. And it has been case, 2 Brod. & Bing. 298, per Abbott,
said, Lliat the party against whom an C. J. ; Eandle v. Blackburn, 5 Taimt.
answer in chancery is prodnced, may 245; Thompson u. Austen, 2 D. & R.
claim to have the whole bill as well as 358; Fletcher «. Froggart, 3 C. & P.
the answer read as part of his adversa- 569 ; Yates i'. Carnsew, 3 C. & P. 99, per
rv's case, upon the same ground, that. Lord Tenterden; Cooper v. Smith, 15
wliere one proves answers in conversation East, 103, 107 ; Whitwell v. Wyer, 11
against a party, he may insist upon having Mass. 6, 10 ; Garey v. Nicholson, 24 Wend.
the questions to which he made the replies 3.50; Kelsey w. Bush, 2 Hill, R. 440; in-
put in evidence. Pennell v. Meyer, 1 M. fra, §§ 215, 218, and cases there cited.
& Rob. 98, by Tindal, Ch. .1. ; s. c. 8, C. & Where letters in correspondence between
P. 470. But tlie rule in equity does not tlie plaintiifand defendant were offered in
extejid to putting in evidence matters evidence by the former, it was held that
CHAP, il.] OF ADMISSIONS. 231
§ 202. Wliere the admission, wliether oral or in writing, con-
tains matters stated as mere hearsay, it has been made a question
whether such matters of hearsay are to be received in evidence.
Mr. Justice Chambre, in the case of an answer in chancery, read
against tlie party in a subsequent suit at law, thought that portion
of it not admissible ; " for," he added, " it appears to me, that
where one party reads a part of the answer of the other party in
evidence, he makes the whole admissible only so far as to waive
any objection to the competency of the testimony of the party
making the answer, and that he does not thereby admit as evidence
all the facts, which may happen to have been stated by way of
hearsay only, in the course of the answer to a bill filed for a
discovery." ^ But where the answer is offered as the admission of
the party against whom it is read, it seems reasonable that the
whole admission should be read to the jury, for the purpose of
showing under what impressions that admission was made, though
some parts of it be only stated from hearsay and belief. And what
may or may not be read, as the context of the admission, depends
not upon the grammatical structure, but upon the sense and
connection in fact. But whether the party, against whom the
answer is read, is entitled to have such parts of it as are not
expressly sworn to left to the jury as evidence, however slight, of
any fact, does not yet appear to have been expressly decided.^
§ 203. It is further to be observed on this head, that the parol
admission of a party, made en pais, is competent evidence only of
those facts which may lawfully be established by parol evidence ; it
cannot be received either to contradict documentary proof, or to
supply the place of existing evidence by matter of record. Thus,
a written receipt of money from one as the agent of a corporation,
or even an express admission of indebtment to the corporation
itself, is not competent proof of the legal authority and capacity of
the corporation to act as such.^ Nor is a parol admission of having
the latter might read his answer to the practice, that where the party admits let-
plaintiif's last letter, dated the day pre- ters to he in his handwriting, in order to
vious. Roe v. Day, 7 C. & P. 705. And save the expense of proof at the trial,
where one party produces the letter of this will preclude all objection to the au-
anotlier, purporting to be in reply to a tlienticity of any portion of such letters,
previous letter from himself, he is bound although obviously in a different hand-
to call for and put in the letter to which it writing. Hawk v. Freund, 1 !<'. & F. 294.
was an answer, as part of lii« own evi- ^ Eoe v. Ferras, 2 Bos. & Pul. S48.
dence. Watson v. Moore, 1 C. & Kir. ^ 2 Bos. & Pul. 548, note ; Gresley on
626 ; [Reynolds v. Manning, 15 Md. 510.] Evid. 13.
I* It seems to be settled, in the English ^ Welland Canal Co. v. Hathaway, 8
232 LAW OP EVIDENCE. [PABT H.
been discharged under an insolvent act sufficient proof of that
fact, without the production of the record.^ The reasons on which
this rule is founded having been already stated, it is unnecessary
to consider them further in this place.^ The rule, however, does
not go to the utter exclusion of parol admissions of this nature, but
only to their effect ; for in general, as was observed by Mr. Justice
Parke,^ what a party says is evidence against himself, whether it
relate to the contents of a written instrument, or any thing else.
Therefore, in replevin of goods distrained, the admissions of the
plaintiff have been received, to show the terms upon which he held
the premises, though he held under an agreement in writing, which
was not produced.* Nor does the rule affect the admissibility of
such evidence as secondary proof, after showing the loss of the
instrument in question.
§ 204. With regard, then, to the conclusiveness of admissions, it
is first to be considered, that the genius and policy of the law
favor the investigation of truth by aU expedient and convenient
methods ; and that the doctrine of estoppels, by which further
investigation is precluded, being an exception to the general rule,
founded on convenience, and for the prevention of fraud, is not to
be extended beyond the reasons on which it is founded.^ It is also
to be observed, that estoppels bind only parties and privies, and
not strangers. Hence it follows, that though a stranger may often
show matters in evidence, which parties or privies might have
specially pleaded by way of estoppel, yet, in his case, it is only
matter of evidence, to be considered by the jury.^ It is, however,
"Wend. 480 ; National Bank of St. Charles the judgment of the court, in Heane v.
V. De Bernales, 1 C & P. 569 ; Jenner v. Rogers, 9 B. & C. 677, 586. It was an
Joliffe, 6 Johns. 9. action of trover, brought by a person,
1 Scott V. Clare, 3 Campb. 236 ; Sum- against whom a commission of bankruptcy
mersett v. Adamson, 1 Bing. 73, per had issued, against his assignees, to re-
Parke, J. cover the value of goods, which, as assign-
2 See supra, §§ 96, 97. ees, they had sold ; and it appeared that
8 In Earle v. Picken, 5 C. & P. 542 ; he had assisted the assignees, by giving
Newhall v. Holt, Id. 662; Slatterie v. directions as to the sale of the goods ; and
Pooley, 6 M. & W. 664 ; Pritchard v. Bag- that, after the issuing of the commission,
shawe, 11 Common Bench R. 459. [Oral he gave notice to the lessors of a farm
statements and admissions are admissible which he held, that he had become bank-
in evidence against the party maldng rupt, and was willing to give up the lease,
them, though they involve what must which the lessors thereupon accepted, and
necessarily be contained in some writing, took possession of the premises. And the
deed, or record. Smith v. Palmer, 6 question was, whether he was precluded,
Cush. 513, 620.] by this surrender, from disputing the
■* Howard v. Smith, 3 Scott, N. R. 574. commission in the present suit. On. tliis
s See sujjra, § 22-26. point the language of the learned judge
o This subject was very clearly illus- was as follows : " There is no doubt but
trated by Mr. Justice Bayley, in delivering that the express admissions of a party to
CHAP. XI.]
OP ADMISSIONS.
233
in suoli cases, material to consider, whether the admission is made
independently, and because it is true, or is merely conventional,
entered into between the parties from other causes than a con-
viction of its truth, and only as a convenient assumption for the
particular purpose in hand. For in the latter case, it may be
doubtful whether a stranger can give it in evidence at aU.^ Ver-
bal admissions, as such, do not seem capable, in general, of being
pleaded as estoppels even between parties or privies ; but if, being
tlie suit, or admissions implied from his
conduct, are evidence, and strong evi-
dence, against him ; but we think that he
is at liberty to prove that such admissions
were mistaken, or were untrue, and is not
estopped or concluded by them, unless
another person has been induced by them
to alter his condition ; in such a case, the
party is estopped from disputing their
truth with respect to that person (and
those claiming under liim), and that trans-
action ; but as to third persons, he is not
bound. It is a well-established rule of
law, that estoppels bind parties and priv-
ies, not strangers. (Co. Lit. 352a; Com.
Dig. Estoppel, C.) The offer of surrender
made in this case was to a stranger to this
suit ; and though the bankrupt may have
been bound by his representation that he
was a bankrupt, and his acting as such, as
between him and that stranger, to whom
that representation was made, and who
acted upon it, he is not bound as between
him and the defendant, wlio did not act
on the faith of that representation at all.
The bankrupt would, probably, not have
been permitted, as against his landlords,
— whom he had induced to accept the
lease, without a formal surrender in writ-
ing, and to take possession, upon the sup-
position that he was a bankrupt, and
entitled under 6 Geo. IV., c. 16, § 75, to
give it up, — to say afterwards that he
was not a bankrupt, and bring an action
of trover for the lease, or an ejectment for
the estate. To that extent he would liave
been bound, probably no furtlier, and cer-
tainly not as to any other persons than
those landlords. This appears to us to
be the rule of law, and we are of opinion
that tlie bankrupt was not by law, by his
notice and offer to surrender, estopped ;
and indeed it would be a great hardship if
he were precluded by such an act. It is
admitted tliat his surrender to his commis-
sioners is no estoppel, because it would be
very perilous to a bankrupt to dispute it,
and try its vahdity by refusing to do so.
(See Flower v. Herbert, 2 Ves. 326.) . A
similar observation, though not to the
same extent, applies to this act; for
whilst his commission disables him from
carrying on his business, and deprives
him, for the present, of the means of oc-
cupying his farm with advantage, it would
be a great loss to the bankrupt to continue
to do so; paying a rent and remaining
liable to the covenants of the lease, and
deriving no adequate benefit ; and it can-
not be expected that he should incur such
a loss, in order to be enabled to dispute
his commission with effect. It is reason-
able that he should do the best for liim-
self, in the unfortunate situation in which
he is placed. It is not necessary to refer
particularly to the cases in which a bank-
rupt has been precluded from disputing
his commission, and which M'ere cited in
argument. The earlier cases fall within
the principle above laid down. In Clark
V. Clark, 6 Esp. 61, the bankrupt was not
permitted to call that sale a conversion,
which he himself had procured and sanc-
tioned ; in Like v. Howe, 6 Esp. 20, he was
precluded from contesting the title of per-
sons to be assignees, whom lie by his con-
duct had procured to become so ; and the
last case on this subject, Watson v. Wace,
5 B. & C. 153, is distinguishable from the
present, because Wace, one of the defend-
ants, was the person from whose suit tlie
plaintiff had been discharged, and there-
fore, perhaps, he might be estopped with
respect to that person by his conduct
towards him. See also Welland Canal
Co. V. Hatliaway, 8 Wend. 483; Jennings
V. Whittaker, 4 Monroe. 50 ; Grant v.
Jackson, Feake's Cas. 203; Ashnioie v.
Hardy, 7 0. & P. 501 ; Carter o. Bennett,
4 rior. Rep. 343.
1 Phil. & Am. on Evid. 388; 1 PliU.
Evid. 368. In Slaney v. Wade, 1 Myliie
6 Craig, 388, and Fort v. Cl.-.rk, 1 Huss
601, 604. the recitals in certain deeds were
held inadmissible, in favor of strnnuers, as
evidence of pedigree. But it is to be
noted that the parties to those dceiis were
strangers to the persons whose petligvee
they undertook to recite.
20*
234 LAW OP EVIDENCE. [PAKT II.
unexplained or avoided in evidence, the jury should wholly disre-
gard them, the remedy would be by setting aside the verdict. And
when they are held conclusive, they are rendered effectually so
by not permitting the party to give any evidence against them.
Parol or verbal admissions, which have been held conclusive
against the party, seem for the most part to be those on the faith
of whicli a court of justice has been led to adopt a particular course
of proceeding, or on which another person has been induced to
alter his condition.^ To these may be added a few cases of
fraud and crime, and some admissions on oath, which will be
considered hereafter, where the party is estopped on other
grounds. .
§ 205. Judicial admissions, or those made in court by the party's
attorney, generally appear either of record, as in pleading, or in
the solemn admission of the attorney, made for the purpose of
being used as a substitute for the regular legal evidence of the fact at
the trial, or in a case stated for the opinion of the court. Both
these have been already considered in the preceding pages.^
There is still another class of judicial admissions, made by the pay-
ment of money into court, upon a rule granted for that purpose. Here,
it is obvious, tlie defendant conclusively admits that he owes the
amount thus tendered in payment ; ^ that it is due for the cause
mentioned in the declaration;* that the plaintiff is entitled to
claim it in the character in which he sues ; ^ that the court has
jurisdiction of the matter ; ^ that the contract described is rightly
set fortli, and was duly executed ; ''' that it has been broken in the
manner and to the extent declared ; ^ and if it was a case of goods
sold by sample, that they agreed with the sample.^ Li other words,
1 Phil. & Am. on Evid. 378 ; 1 Phil. s Blackburn v. Scholes, 2 Camph. 341 ,
Evid. 360. The general doctrine of estop- Eucker v. Palsgrave, 1 Campb. 558; 1
pels is thus stated by Ld. Denman. Taunt. 419, s. c. ; Boyden o. Moore, 5
" Where one, by liis words or conduct Mass. 365, 369.
wilfully causes another to believe the ex- * Seaton v. Benedict, 5 Bing. 28, 32 ,
istence of a certain state of things, and Bennett v. Francis, 2 B. & P. 550 ; Jones
induces him to act on that belief, so as to v. Hoar, 5 Pick. 285 ; Huntington v. The
alter his own previous position, the former American Bank, 6 Pick. 340.
is concluded from averring against the ^ Lipseombe v. Holmes, 2 Campb. 441.
latter a different state of things as existing ^ Miller v. WiUiams, 5 Esp. 19, 21.
at the same time." Pickard v. Sears, 6 ' Gutteridge v. Smith, 2 H. BI. 374;
Ad. & El. 469, 475. The whole doctrine Israel v. Benjamin, 3 Campb. 40 ; Middle-
is ably discussed by Mr. Smith, and by ton v. Brewer, PeaJte's Cas. 15 ; RancLiU
Messrs. Hare and Wallace in their notes v. Lynch, 1 Campb. 352, 357 ; Cox v
to the case of Trevivan v, Lawrence. See Brain, 3 Taunt. 95.
2 Smith's Leading Cases, pp. 430-479 » pyg, „. Ashton, 1 B. & C. 3.
(Am. edit.). ' Leggatt v. Cooper, 2 Stark. B. 103.
2 See supra, § 22-26, 186.
CHAP. XI.] OF ADMISSIONS. 235
the payment of money into court admits conclusively eveiy fact
which the plaintiff would be obliged to prove in order to recover
that money.i But it admits nothing beyond that. If, therefore,
the contract is illegal, or invalid, the payment of money into court
gives it no validity ; and if the payment is general, and there are
several counts, or contracts, some of which are legal and others
not, the court will apply it to the former.^ So, if there are two
inconsistent counts, on the latter of which the money is paid into
court, which is taken out by the plaintiff, the defendant is not
entitled to show this to the jury, in order to negative any allegation
in the first count.^ The service of a summons to show cause why
the party should not be permitted to pay a certain sum into court,
and d fortiori, the entry of a rule or order for that purpose, is also
an admission that so much is due.*
§ 206. It is only necessary here to add, that where judicial
admissions have been made improvidently, and hy mistaJce, the
court will, in its discretion, relieve the party from the conse-
quences of liis error, by ordering a repleader, or by dischar-
ging the case stated, or the rule, or agreement, if made in
court.^ Agreements made out of court, between attorneys, con-
cerning the course of proceedings in court, are equally under its
control, in effect, by means of its coercive power over the attorney
in all matters relating to professional character and conduct. But,
in all these admissions, unless a clear case of mistake is made out,
entitling the party to relief, he is held to the admission ; which the
court will proceed to act upon, not as truth in the abstract, but as
1 Dyer v. Asliton, 1 B. & C. 3; Staple- "■ Ribbans v. Crickett, 1 B. & P. 264;
ton V. Nowell, 6 M. & W. 9 ; Archer v. Hitchcock v. Tyson, 2 Esp. 481, note.
Enslish, 2 Scott, N. S. 156 ; Archer 3 Qould v. Oliver, 2 M. & Gr. 208, 233,
V. Walker, 9 Dovvl. 21. And see Story v. 234 ; Montgomery v. llichardson, 5*C. &
Finnis, 3 Eng. L. & Eq. R. 548 ; Sclireger P. 247.
V. Garden, 16 Jur. 568 ; [Bacon v. Charl- * Williamson t'. Henley, 6 Bing. 299.
ton, 7 Gush. 581, 583. And where the ^ " Non fatetm-, qui errat, nisi jus igno-
declaration contains more than one count, ravit." Dig. lib. 42, tit. 2; 1. 2. " Si vero
and a part only of tlie sum demanded is per errorem fuerit facta ipsa confessio
paid into court, witliout specilication as to (scil. ab advocato), clienti concessum est,
■vvhicli of the counts is to be applied, such errore probato, usque ad sentcntiam revo-
paymcnt is an admission only that tlie care." Mascard. De Probat. vol. 1,
defendant owes the plaintiff tlie sum .so Qua3st. 7, n. 63; Id. n. 19, 20, 21, 22; Id.
paid on some one, or several of tlic counts, vol. 1, Concl. 348, per tot. See Kohn v.
but it is not an admission of any indebted- Marsh, 3 Rob. Lonis. R. 48. The princi-
ness under any one count, nor of a lia- pie, on wliich a party is relieved against
bility on all of tlieni. Hubbard v. Knous, judicial admissions made improvidently
7 Gush. 556, 559; Kingham v. Robins, 5 and by mistake is equally apphcable to
Mees. & Welsh. 94 ; Archer v. English, admissions en pais. Accordingly, wliere a
1 M. & G. g^'S ■" legal liability was thus admitted, it was
236 LAW OF EVIDENCE. [PABT II.
a formula for the solution of the particular problem before it,
namely, the case in judgment, without injury to the general admin-
istration of justice.^
§ 207. Admissions, whether of law or of fact, which have been
acted uponly others, are conclusive against the party making them,
in all cases between him and the person whose conduct he has thus
influenced.^ It is of no importance whether they were made in
express language to the person himself, or implied from the open
and general conduct of the party. For, in the latter case, the
implied declaration may be considered as addressed to every one
in particular, who may have occasion to act upon it. In such
cases the party is estopped, on grounds of public policy and good
faith, from repudiating his own representations.^ This rule is
familiarly illustrated by the case of a man cohabiting with a woman,
and treating her in the face of the world as his wife, to whom in
fact he is not married. Here, though he thereby acquires no
rights agamst others, yet they may against him ; and therefore, if
she is supplied with goods during such cohabitation, and the
reputed husband is sued for them, he will not be permitted to
disprove or deny the marriage.* So, if the lands of such woman
are taken in execution for the reputed husband's debt, as his own
freehold in her right, he is estopped, by the relation de facto of
husband and wife, from saying that he held them as her ser
held that the jury were at liberty to con- & El. 921, rr. s. Newton v. Liddiard, Id.
sider all the circumstances, and the mis- 925 ; [Tompkins v. Phillips, 12 Geo. 52.
taken view under which it was made; But when a party applies to another for
that the party might show that the admis- information, on which he intends to act,
sion made by hira ai-ose from a mistake as and which may affect the interests of the
to the law ; and that he was not estopped other, he ought to disclose these cireum-
by such admission, unless the other party stances, and if he does not, the statements
had been induced by it to alter his condi- made by the other will not be conolusiye
tion. Newton v. Belcher, 13 Jur. 253 ; 18 upon him. Hackett v. Callender, 82 Vt.
Law J". 53, Q. B. ; 12 Ad. & El. 921, n. s. ; 99.1
Newton v. Liddiard, Id. 925 ; Solomon v. * See supra, §§ 195, 196 ; Quick v.
Solomon, 2 Kelly, 18. Staines, 1 B. &P. 203; Graves v. Key, 3
1 See Gresley on Evid. in Equity, p. B. & Ad. 318 ; Straton v. Rastall, 2 T. R.
349-358. Tlie Roman Law was adminis- 366 ; Wyatt v. Ld. Hertford, 3 East, 147.
tered in tlie same spirit. " Si is, cum quo * Watson v. Threlkeld, 2 Esp. 637 ;
Lege Aquilia agitur, confessus est servum Robinson v. Nahor, 1 Caraph. 245; Munro
oocidisse, licet non occiderit, si tamen v. De Chamant, 4 Campb. 215; Ryan v.
ocL'isus sit homo, ex confesso tenetur." Sams, 12 Ad. & El. 460, n. s. ; supra, §
Dig. lib. 42, tit. 2, 1. 4 ; Id. 1. 6. See also 27. But where such representation has
Van Leeuwen's Coram, b. v. ch. 21 ; not been acted upon, namely, in otlier
Everhardi Concil. 155, n. 3. " Confessus transactions of the supposed husband, or
pro judlcato est." Dig. ub. sup. 1. 1. wife, they are competent witnesses for
2 .See sitpra, § 27 ; Commercial Bank each other. Bathews v. Galindo, 4 Biiig.
of N.itcliez ii. King, 3 Rob. Louis. R. 243 ; 610; "Wells v. Fletteher, 5 C. & P. 12;
Kinney v. Farnsworth, 17 Conn. R. 355; Tufts v. Hayes, 5 New Hamp. 452.
Newton v. Belcher, 13 Jur. 253; 12 Ad.
CHAP. XI.J OP ADMISSIONS. 237
vant.^ So, if a party has taken advantage of, or yoluntarily acted
under the bankrupt or insolvent laws, he shall not be permitted,
as against persons, parties to the same proceedings, to deny their
regularity.^ So also where one knowingly permits his name to be
used as one of the parties in a trading firm, under such circum-
stances of publicity as to satisfy a jury that a stranger knew it, and
believed him to be a partner, he is liable to such stranger in all
transactions in which the latter engaged, and gave credit upon the
faith of his being such partner.^ On the same principle it is, that,
where one has assumed to act in an official or professional char-
acter, it is conclusive evidence against him that he possesses that
character, even to the rendering him subject to the penalties
attached to it.* So, also, a tenant who has paid rent, and acted as
such, is not permitted to set up a superior title of a third person
against his lessor, in bar of an ejectment brought by him ; for he
derived the possession from him as his tenant, and shall not be
received to repudiate that relation.^ But this rule does not
preclude the tenant, who did not receive the possession from
the adverse party, but has only attorned or paid rent to him,
from showing that this was done by mistake.^ This doctrine
is also applied to the relation of bailor and bailee, the cases
being in principle the same ; ^ and also to that of principle and
1 Divoll V. Leadbetter, 4 Pick. 220. ^ Williams v. Bartholomew, 1 B. & P.
2 Like V. Howe, 6 Esp. 20 ; Clarke v. 826 ; Rogers v. Pitcher, 6 Taunt. 202, 208 ;
Clarke, Id. 61 ; Goldie v. Gunston, 4 [supra, § 25, and notes ; Elliott o. Smith,
Campb. 381 ; Watson v. Wace, 5 B. & C. 23 Penu. St. R. 131 ; Watson v. Lane.
153, explained in Heane v. Rogers, 9 B. 34 Eng. Law & Eq. R. 532.J
& C. 587 ; Mercer v. Wise, 3 Esp. 219 ; ' Gosling v. Birnie, 7 Bing. 339 ; Phil-
Harmer v. Davis, 7 Taunt. 577 ; Elower lips v. Hall, 8 Wend. 610 ; Drown v.
V. Herbert, 2 Ves. 326. Smith, 3 N. Hamp. 299 ; Eastman v. Tut-
8 Per Parke, J., in Dickinson u. Valpy, tie, 1 Co wen, 248; McNeil v. Philip, 1
10 B. & C. 128, 140, 141 ; Eox v. Clifton, McCord, R. 392; Hawes v. Watson, 2 B.
6 Bing. 779, 794, per Tindal, C. J. See & C. 540 ; Stonard v. Dunkin, 2 Campb.
also Kell v. Nainby, 10 B. & C. 20 ; Gui- 344 ; Chapman v. Searle, 3 Pick. 38, 44 ;
don V. Robson, 2 Campb. 302. Dixon v. Hamond, 2 B. & Aid. 310 ; Jew-
* See supra, § 195, and eases cited in ett v. Torry, 11 Mass. 219 ; Lyman v.
note. Lyman, Id. 317 ; Story on Bailments, §
5 Doe ». Pegge, 1 T. R. 759, note, per 102; Kieran v. Sanders, 6 Ad. & El. 515.
Ld. Mansfield ; Cook v. Loxley, 5 T. R. But where the bailor was but a trustee,
4 ; Hudson v. Sharpe, 10 East, 350, 352, and is no longer liable over to the cestui
853, per Ld. EUenborough ; Phipps v, que trust, a delivery to the latter is a good
Sculthorpe, 1 B. & A. 50, 53; Cornish defence for the bailee against the bailor.
V. Searell, 8 B. & C. 471, per Bayley, J. ; This principle is familiarly applied to the
Doe V. Smythe, 4 M. & S. 347 ; Doe v. case of gopds attached by the sherifT, and
Austin, 9 Bing. 41 ; Pleaming v. Gooding, delivered for safe keeping to a person who
10 Bing. 549 ; Jackson v. Reynolds, 1 deUvers them over to the debtor. After
Caines, 444 ; Jackson v. Scissan, 8 Johns, the lien of the sheriff is dissolved, he can
499, 504 ; Jackson v. Dobbin, Id. 228 ; have no action against his bailee. Whit-
Jackson V. Smith, 7 Cowen, 717 ; Jackson tier v. Smith, 11 Mass. 211 ; Cooper v.
V. Spear, 7 Wend. 401. See 1 Phil, on Mowry, 16 Mass. 8; Jennv v. Rodman,
Erid. 107 Id- 464. So, if the goods did not belong
238 LAW OF EVIDENCE. [PAHT TL.
agent.i Thus, where goods in the possession of a debtor were at-
taclied as his goods, whereas they were the goods of another person,
who received them of the sheriff, in bailment for safe custody, as the
goods of the debtor, without giving any notice of liis own title,
the debtor then possessing other goods, which might have been at-
tached ; it was held, that the bailee was estopped to set up his own
title in bar of an action by the sheriff for the goods.^ The accep-
tance of a bill of exchange is also deemed a conclusive admission,
against the acceptor, of the genuineness of the signature of the
drawer, though not of the indorsers, and of the authority of
the agent, where it was drawn by procuration, as well as of the
legal capacity of the preceding parties to make • the contract.
The indorsement, also, of a bill of exchange, or promissory
note, is a conclusive admission of the genuineness of the preced-
ing signatures, as well as of the authority of the agent, in cases
of procuration, and of the capacity of the parties. So, the as-
signment of a replevin bond by the sheriff is an admission of its
due execution and validity as a bond.^ So, where land has been
dedicated to public use, and enjoyed as such, and private rights
have been acquired with reference to it, the original owner is pre-
cluded from revoking it.* And these admissions may be pleaded
by way of estoppel en pais?
§ 208. It makes no difference in the operation of this rults,
whether the thing admitted was true or false ; it being the fact
that it has been acted upon that renders it conclusive. Thus,
where two brokers, instructed to effect insurance, wrote in reply
to the debtor, and the bailee has delivered ver, who induced the plaintiff to believe,
them to the true owner. Learned v. when demanding the property, that it was
Bryant, 13 Mass. 224 ; Fisher «. Bartlett, in his possession and control, is not tliere-
8 Greenl. 122. Ogle v. Atkinson, 5 Taunt, by estopped in law fi-om proving the con-
749, which seems to contradict the text, trary. Jackson v. Pixley, 9 Gush. 490,
has been overruled, as to this point, by 492.]
Gosling V. Birnie, su-pra. See also Story " Scott v. Waithman, 3 Stark. 168 ;
on Agency, § 217, note. Barnes v. Lucas, Ry. & M. 264 ; Plumer
^ Story on Agency, § 217, and cases v. Biiscoe, 12 Jur. 351 ; 11 Ad. & El. 46,
there cited. The agent, however, is not n. s.
estopped to set up the jus tertii in any case * Cincinnati v. White, 6 Pet. 489 ;
where the title of the principal was ac- Hobbs v. Lowell, 19 Pick. 405.
quired by fraud ; and the same principle ^ Story on Bills of Exchange, §§ 202,
seems to apply to otlier cases of bailment. 263 ; Sanderson v. CoUniau, 4 Scolt, N.
Hardman v. Wilcock, 9 Bing. .382, note. R. 638 ; Pitt v. Chappelow, 8 M. & W.
2 Dewey t). Field, 4 Met. 381. See 616; Taylor v. Croker, 4 Esp. 187:
also Pitt V. Chappelow, 8 M. & W. 616; Drayton v. Dale, 2 B. & C. 293; Haly v.
Sanderson v. CoUman, 4 Scott, N. R. 638 ; Lane, 2 Atk. 181 ; Bass. v. Clive, 4 M. &
Heane v. Rogers, 9 B. & C. 577 ; Dezell S. 13 ; supra, §§ 195, 196, 197 ; Weakley
V. Odell, 3 Hill, 215. [But it has been v. BeU, 9 Watts, 273.
held that a defendant in an action of tro-
CHAP. XI.] OF ADMISSIONS. 239
that they had got two policies effected, which was false; in an
action of trover against them by the assured for the two policies,
Lord Mansfield held them estopped to deny the existence of the
policies, and said he should consider them as the actual insurers.^
This principle has also been applied to the case of a sheriff, who
falsely returned that he had taken bail.^
§ 209. On the other hand, verbal admissions which have not
been acted upon, and which the party may controvert, without any
breach of good faith or evasion of public justice, though admissible
in evidence, are not held conclusive against him. Of this sort is
the admission that his trade was a nuisance, by one .ndicted for
setting it up in another place ; ^ the admission by the defendant,
in an action for criminal conversation, that the female in question
was the wife of the plaintiff;* the omission by an insolvent, in his
schedule of debts, of a particular claim, which he afterwards
sought to enforce by suit.^ In these, and the like cases, no wrong
is done to the other party, by receiving any legal evidence show-
ing that the admission was erroneous, and leaving the whole evi-
dence, including the admission, to be weighed by the jury.
§ 210. In some other cases, connected with the administration
of pixblic justice and of government, the admission is held con-
clusive, on grounds of public policy. Thus, in an action on the
statute against bribery, it was held that a man who had given
money to another for his vote should not be admitted to say that
sucli other person had no right to vote.^ So, one who has offi-
ciously intermeddled with the goods of another recently deceased,
is, in favor of creditors, estopped to deny that he is executor.'
1 HariJing v. Carter, Park on Ins. p. 4. ' Eex v. Neville, Peake's Cas. 91.
See also Salem v. Williams, 8 Wend. 483 ; * Morris v. Miller, 4 Burr. 2057, fUr-
9 Wend. 147, a. c. ; Chapman v. Searle, ther explained in 2 Wils. 399; 1 Doug.
.S I'ick. 38, 44 ; Hall v. Wliite, 3 C. & P. 174 ; and Bull. N. P. 28.
13fj; Den r. Oliver, 3 Hawkes, R. 479; ^ ui^iioig „. Do^nes, 1 Mood. &R. 13;
Doe c. l^ambly, 2 Esp. G35 ; 1 B. & A. Hart v. Newman, 3 Campb. 13.
65!), per Lord Ellenljorough ; Priee v. " Combe v. Pitt, 3 Burr. 1586,1590;
Ilai-wood, 3 Campb. 108; Slables vAiley, Eigg v. Curgenven, 2 Wils. 395.
1 C. & I'. 014; How.ard v. Tucker, 1 B. & ' Eeade's case, 5 Co. 33, 34; Toller's
All. 712. If It is a case of innocent mis- Law of Ex'rs, 37^1. See also Quick v.
take, still, if it has been acted upon by Staines, 1 B. & P. 293. Where the own-
anotiier, it is conclusive in his taVor. As, ers of a stage-coach took up more passen-
where the supjiosed maker of a forged gers than were allowed by statute, and an
nole innocently paid it to a land Jide injury was laid to have arisen from over-
liolder-, he shall be estopped to recover loading, the excess beyond the statute
back the money. 'Salem Bank u. Glou- number was held by Lord Elleiibqrough
cesler Bank, 17 Mass. 1, 27. to be conclusive evidence that the acci-
2 Simmons v. Bradford, 15 Mass. 82 ; dent arose from that cause. Israel w
Fjiton -'. Ugier, 2 Greenl 46 Clark, 4 Esp. 269.
240 LAW OP EVIDENCE. [PAET U.
Thus, also, where a ship-owner, whose ship had been seized as
forfeited for breach of the revenue laws, applied to the Secretary
of the Treasury for a remission of forfeiture, on the ground that
it was incurred by the master ignorantly, and without fraud, and
upon making oath to the application, in the usual course, the
ship was given up ; he was not permitted afterwards to gainsay
it, and prove the misconduct of the master, in an action by the
latter against the owner, for his wages, on the same voyage, even
by showing that the fraud had subsequently come to his knowl-
edge.^ The mere fact that an admission was made under oath,
does not seem alone to render it conclusive against the party,
but it adds vastly to the weight of the testimony ; throwing upon
him the burden of showing that it was a case of clear and innocent
mistake. Thus, in a prosecution under the game laws, proof of
the defendant's oath, taken under the income act, that the yearly
value of his estate was less than £100, was held not quite con-
clusive against him, though very strong evidence of the fact.^
And even the defendant's belief of a fact, sworn to in an answer
in chancery, is admissible at law, as e'S'idence against him of the
fact, though not conclusive.^
§ 211. Admissions in deeds have already been considered, in
regard to parties and privies,^ between whom they are generally
conclusive ; and when not technically so, they are entitled to
great weight from the solemnity of their nature. But when
offered in evidence by a stranger, or, as it seems, even by a party
against a stranger, the adverse party is not estopped, but may
1 Ereeman v. Walker, 6 Greenl. 68. had sworn positively to matter of fact in
But a sworn entry at the custom-house of his own knowledge ; but it was held not
certain premises, as heing rented by A, B, conclusive in law against him, though
and C, as partners, for the sale of beer, deserving of much weight with the jury,
though conclusive in favor of the crown. And see Carter v. Bennett, 4 Flor. Eep.
is not conclusive evidence of the partner- 343.
ship, in a civil suit, in favor of a stranger. ^ X)oe v. Steel, 3 Campb. 115. Au-
EUis V. "Watson, 2 Stark. E. 458. The swers in chancery are always admissible
diiference between this case and that in at law against the party, but do not seem
the text may be, that in the latter the to be held strictly conclusive, merely
party gained an advantage to himself, because they are sworn to. See BuU. N
which was not the case in the entry of P. 236, 237 ; 1 Stark. Evid. 284 ; Came-
partnership ; it being only incidental to ron v. Lightfoot, 2 W. Bl. 1190 ; Grant v.
the principal object, namely, the designa- Jackson, Peake's Cas. 203 ; Studdy v.
tlon of a place where an excisable com- Saunders, 2 D. & E. 347 ; De Whelpdale
modity was sold. v. Milburn, 5 Price, 485.
2 Eex V. Clai-ke, 8 T. E. 220. It is « Supra, §§ 22, 23, 24, 189, 204. But
observable, that the matter sworn to was if the deed has not been delivered, the
rather a matter of judgment than of party is not conclusively bound. Eobin-
certainty in fact. But in Thornes v. son v. Cushman, 2 Denio, 149.
White, 1 Tyrwh. & Grang. 110, the party
CHAP. .Xl.} OP ADMISSIONS. 241
repel their effect, in the same manner as though they were
only parol admissions.^ [*It is scarcely necessary to say, that
all estoppels in deed must be mutual, i.e., must bind both par-
ties. Hence recitals in a deed may bind a party, in one relation
or capacity, and not in another.^ And writers of authority affirm,
that "it is now clearly settled, that a party is not estopped from
avoiding his deed by proving that it was entered into from a
fraudulent, illegal, or immoral purpose."^ So the tenant is so
estopped to deny the title of his landlord, that he cannot take
advantage of any formal defect therein, which appears in the course
of the trial in a suit for use and occupation.*]
§ 212. Other admissions, though in writing, not having been
acted upon by another to his prejudice, nor falling within the
reasons before mentioned for estopping the party to gainsay them,
are not conclusive against him, but are left at large, to be weighed
with other evidence by the jury. Of this sort are receipts, or mere
acknowledgments, given for goods on money, whether on separate
papers, or indorsed on deeds or on negotiable securities ; ^ the
adjustment of a loss, on a policy of insurance, made without fuU
knowledge of all the circumstances, or under a mistake of fact,
or under any other invalidating circumstances ; ^ and aceounts
rendered, such as an attorney's bill,'' and the like. So, of a bill
in chancery, which is evidence against the plaintiff of the admi&-
sions it contains, though very feeble evidence, so far it may be
taken as the suggestion of counsel.*
1 Bowman v. Eostron, 2 Ad. & El. 295, receipt of the purchase-money in a deed
n. ; Woodward v. Larkin, 3 Esp. 286 ; of land is no evidence of the fact against
Mayor of Carlisle v. Blamire, 8 East, 487, a stranger. Lloyd v. Lynch, 28 Penn. St.
492, 493. 419. The receipt of the mortgagee, it
2 [* 2 Smith's Lead. Cas. 442 ; Taylor's has been held, is not evidence of a pay-
Bvid. § 82. ment by the mortgagor, at the date of
^ Taylor's Evid. § 80. the receipt as against the assignee of the
* Dolby V. lies, 11 Ad. & El. 335.] mortgage whose title dates subsequent to
^ Skaife u. Jackson, 3 B. & C. 421 ; the date of the receipt. Foster v. Beals,
Graves v. Key, 3 B. & A. 313 ; Straton v. 21 ». Y. Ct. of App. 247 ("three judges
Eastall, 2 T. E. 366; Eairmaner v. Budd, dissenting).]
7 Bing. 574; Lampon v. Corke, 5 B. & « Eayner v. Hall, 7 Taunt. 725; Shep-
Ald. 606, 611, per Holroyd, J. ; Harden v. herd v. Chewter, 1 Campb. 274, 276, note
Gordon, 2 Mason, 541, 561; Fuller v. by the reporter ; Adams ti. Sanders, 1 M.
Crittenden, 9 Conn. 401 ; Ensign v. Web- & M. 373 ; Christian v. Coombe, 2 Esp.
ster, 1 Johns. Cas. 145; Putnam !>. Lewis, 469; Bilbie v. Lumley, 2 East, 469; El-
8 Johns. 389 ; Stackpole v. Arnold, 11 ting v. Scott, 2 Johns. 157.
Mass. 27; Tucker v. Maxwell, Id. 143; ' Lovebridge v. Botham, 1 B. & P. 49
Wilkinson v. Scott, 17 Mass. 249; [infra, » BuU. N. P. 235; Doe v. Syboum, 7
§ 305.] [* The acknowledgment of the T. E. 3. See vol. 8, § 276.
vol.. I. 21
24:2 LAW OP ETIDENCB. fPABT SI.
CHAPTBK Xn.
OP CONFESSIONS.
{ * § 213. Confessions are direct, and indirect, or implied.
214. Grounds of caution in regard to such evidence in criminal cases.
215. Under what circumstances confessions are received.
216. Confessions are judicial and extra-judicial.
217. Naked confessions insufficient, without proof of corpus delicti.
218. All taken together. Jury not bound to give equal credit to all.
219. Must be voluntary ; i.e., not obtained through Jiope or fear.
220. How far promises or threats will exclude confessions.
220a. The author thinks the inducements should be such as render the confes-
sions unworthy of credit, to exclude them.
221. If the influence of inducements oflfered be removed, confession evidence.
222. Inducements by those in authority will exclude confession.
223. By those not in such position, may or not, according to circumstances.
224. Examinations of prisoners under the English Statute.
225. Must be entirely free, and not upon oath, to become evidence.
226. If under any constraint, his statements not evidence.
227. The written examination taken down by the magistrate, within its scope,
excludes other proof
228. If examination be rejected for informality, other proof admissible.
229. Many circumstances enumerated, which will not avoid the effect of a con-
fession. ,
230. It seems doubtful how far illegal restraint will have that effect.
231. Information improperly obtained may lead to the discovery of facts which
are admissible.
232. But if no such facts are discovered, nothing can be proved in regard to the
search.
233. The acts, but not the confessions, of co-conspirators admissible.
234. One may be affected, criminally, by the act of his agent.
235. Confessions admissible in cases of treason.]
§ 213. The only remaining topic, under the general head of
admissions, is that of confessions of guilt in criminal prosecutions,
which we now propose to consider. It has already been observed,
that the rules of evidence, in regard to the voluntary admissions
of the party, are the same in criminal as in civil cases. But, as
this applies only to admissions brought home to the party, it is
obvious that the whole subject of admissions made by agents and
third persons, together with a portion of that of implied admis-
CHAP, xn.]
OF CONFESSIONS.
243
sions, can of course have very little direct application to confes-
sions of crime, or of guilty intention. In treating this subject,
however, we shall follow the convenient course pursued by other
writers, distributing this branch of evidence into two classes ;
naxaelj , first, the direct confessions of guilt; and, secondly, the indi-
rect confessions, or those which, in civil cases, are usually termed
" implied admissions."
§ 214. But here, also, as we have before remarked in regard
to admissions,^ the evidence of verbal confessions of guilt is to be
received with great caution. For, besides the danger of mistake,
from the misapprehension of witnesses, the misuse of words, the
failure of the party to express his own meaning, and the infirmity
of memory, it should be recollected that the mind of the prisoner
himself is oppressed by the calamity of his situation, and that he
is often influenced by motives of hope or fear to make an untrue
confession.^ The zeal, too, which so generally prevails, to detect
1 Supra, § 200.
2 Hawk. P. C, B. 2, ch. 46, § 3, n. (2) ;
McNally's Evid. 42, 43, 44 ; Vaughan v.
Hann, 6 B. Monr. 341 ; [Brister v. State,
26 Ala. 107.] Of tliis character was the
remarkable case of the two Booms, con-
victed in the Supreme Court of Vermont,
in Bennington County, in September term,
1819, of the murder of Russell Colvin,
May 10, 1812. It appeared that Colvin,
who was the brother-in-law of the prison-
ers, was a person of a weak and not per-
pectly sound mind ; that he was considered
burdensome to the family of the prisoners,
who were obliged to support him ; that on
the day of his disappearance, being in a
distant field, where the prisoners were at
work, a violent quarrel broke out between
them ; and that one of them struck him a
severe blow on the back of the head with
a club, which felled him to the ground.
Some suspicions arose at tliat time that he
was murdered ; which were increased by
the finding of his hat in the same field a
few months afterwards. These suspicions
in process of time subsided ; but in 1819,
one of the neighbors having repeatedly
dreamed of the murder, with great mi-
nuteness of circumstance, both in regard
to his death and the concealment of liis
remains, the prisoners were vehemently
accused, anij generally believed guilty of
the murder. Under strict search, the
pocket knife of Colvin, and a button of his
clothes, were found in an old open cellar
in the same field, and in a hollow stump,
not many rods from it, were discovered
two nails and a number of bones, believed
to be those of a man. Upon this evidence,
together with their deliberate confession
of the fact of the murder and conceal-
ment of the body in those places, they
were convicted and sentenced to die. On
the same day they applied to the legisla-
ture for a commutation of the sentence of
death to that of perpetual imprisonment ;
which, as to one of them onlj", was grant-
ed. The confession being now withdrawn
and contradicted, and a reward offered for
the discovery of the missing man, he was
found in New Jersey, and returned home,
in time to prevent the execution. He had
fled for fear that they would kill him.
The bones were tliose of some animal.
They had been advised by some misjudg-
ing friends, that, as they would certainly
be convicted, upon the circumstances
proved, their only chance for life was by
commutation of punishment, and that this
depended on their making a penitential
confession, and thereupon obtaining a rec-
ommendation to mercy. This case, of
which there is a report in the Law Library
of Harvard University, is critically exam-
ined in a learned and elaborate article
in the North American Review, vol. 10,
pp. 418-429. [* Within the last few years
we had opportunity to examine, at length,
the original minutes of the testimony in
this remarkable ease, taken by Chief Jus-
tice Chase,' who presided at the trial, and
we have these minutes still in our posses-
sion. We have been absolutely amazed
at the character of the evidence upon
which the conviction was had. It did not
seem to us sufficient to put the prisonerg
244
LAW OF EVIDENCE.
[part u.
offenders, especially in cases of aggravated guilt, and the strong
disposition, in the persons engaged in pursuit of evidence, to rely
on slight grounds of suspicion, wliich are exaggerated into suffi-
cient proof, together with the character of the persons necessarily
called as witnesses, in cases of secret and atrocious crime, all
tend to impair the value of this kind of evidence, and sometimes
lead to its rejection, where, in civil actions, it would have been
received.! The weighty observation of Mr. Justice Foster is also
to be kept in mind, that " this evidence is not, in the ordinary
course of things, to be disproved by that sort of negative
evidence, by which the proof of plain facts may be, and often is,
confronted."
§ 215. Subject to these cautions in receiving and weighing
them, it is generally agreed, that deliberate confessions of guilt are
upon their defence. Our impression is,
from recollection, without referring to the
minutes, that the confession of the prison-
ers was made suhsec[uent to the convic-
tion, and with a view to influence the
legislature to commute the sentence. But
whenever made, it was confessedly in
answer to urgent solicitations, and positive
assurances that it would alone procure
favorable action upon the case, with the
view of saving the lives of the accused,
and was ni^t therefore competent evidence
against them. But there was no doubt a
fSl confession of guilt made, when in fact
the prisoners were innocent of the actual
crime, wliioh shows how cautiously such
confessions should be received and
weighed.] For other cases of false con-
fessions, see Wills on Circumstantial Evi-
dence, p. 88 ; Phil. & Am. on Bvid. 419 ;
1 Phil. Evid. 397, n. ; "Warickshall's case,
1 Leach, Cr. Cas. 299, n. Mr. Chitty
mentions the case of an innocent person
making a false constructive confession, in
order to fix suspicion on himself 4lone,
that his guilty brothers might have time
to escape; a stratagem which was com-
pletely sficcessful ; after which he proved
an alibi in the most satisfactory manner.
1 Chitty's Grim. Law, p. 85 ; 1 Dicldns,
Just. 629, note. See also Joy on Con-
fessions, &c. pp. 100-109. The civilians
placed little reliance on naked confes-
sions of guilt, not corroborated by other
testimony. Carpzovius, after citing the
opinions of Severus to that efiect, and
enumerating the various kinds of misery
which tempt its wretched victims to this
mode of suicide, adds : " quorum omnium
ex his fontibus contra se emissa pronun-
ciatio, uon tarn delicti coufessione firmati
quam vox doloris, vel insanientis oratio
est." B. Carpzov. Pract. Eerum. Crimi-
nal. Pars. IIL Qusest. 114, p. 160. The
just value of these instances of false con-
fessions of crime has been happily stated
by one of the most accomplished of mod-
ern jurists, and is best expressed in hia
own language : " "Whilst such anomalous
cases ought to render courts and juries,
at all times, extremely watchful of every
fact attendant on confessions of guilt, the
cases should never be invoked, or so urged
by the accused's counsel, as to invalidate
indiscriminately all confessions pnt to the
jury, thus repudiating those salutary dis-
tinctions which the court, in the judicious
exercise of its duty, shall be enabled to
make. Such an use of these anomalies,
which should be regarded as mere excep-
tions, and which should speak only in
the voice of warning, is no less unprofes-
sional than impolitic ; and should be re-
garded as offensive to the inteUigence both
of the court and jury." " Confessions and
circumstantial evidence are entitled to a
known and fixed standing in the law ; and
while it behooves students and lawyers to
examine and carefully weigh their just
force, and, as far as practicable, to define
their proper limits, the advocate should
never be induced, by professional zeal or
a less worthy motive, to argue against
their existence, be they respectively in-
voked, either in favor of, or against the
accused." Hoffman's Course of Legal
Study, vol. 1. pp. 367, 368. 6ee also The
(London) Law Magazine, vol. 4, p. 317,
New Series.
1 Foster's Disc. p. 243. See also Lench
V. Lench, 10 Ves. 518 ; Smith v. Burn-
ham, 8 Sumn. 438.
CHAP. XII.] OF CONFESSIONS. 245
among the most effectual proofs in the law.'^ Their value depends
on the supposition, that they are deliberate and voluntary, and on
the presumption that a rational being will not make admissions
prejudicial to his interest and safety, unless when urged by the
promptings of truth and conscience. Such confessions, so made
by a prisoner, to any person, at any moment of time, and at any
place, subsequent to the perpetration of the crime, and previous
to his examination before the magistrate, are at common law
received in evidence, as among proofs of guilt.^ Confessions, too,
like admissions, may be inferred from the conduct of the prisoner,
and from his silent acquiescence in the statements of others,
respecting himself, and made in his presence ; provided they were
not made under circumstances which prevented him from replying
to them.^ The degree of credit due to them is to be estimated by
the jury, under the circumstances of each case.* Confessions
made before the examining magistrate, or during imprisonment,
are affected by additional considerations.
§ 216. Confessions are divided into two classes, namely, judi-
cial and extrajudicial. Judicial confessions are those which are
made before the magistrate, or in court, in the due course of legal
proceedings ; and it is essential that they be made of the free will
of the party, and with full and perfect knowledge of the nature
and consequences of the confession. Of this kind arc the pre-
liminary examinations, taken in writing by the magistrate, pursu-
ant to statutes ; and the plea of " guilty " made in open court, to
an indictment. Either of these is sufficient to found a conviction,
even if to be followed by sentence of death, they being deliberately
made, under the deepest solemnities, with the advice of counsel,
and the protecting caution and oversight of the judge. Such was
the rule of the Roman law ; " Confesses in jure, pro judicatis
haberi placet ; " and it may be deemed a rule of iiniversal jurispru-
dence.^ Extrajudicial confessions are those which are made by the
1 Dig. lib. 42, tit. 2, De Confess. ; Van & P. 832 ; Bex w. Smithie, 5 C. & P. 332 ;
Leeuwen's Comm. b. 5, ch. 21, § 1 ; 2 Rex v. Appleby, 3 Stark. E. 33 ; Joy on
Poth. on Obi. (by Evans,) App. Num. xvi. Confessions, &c., 77-80; Jones v. Mi/nc'.l,
§ 13 ; 1 Gilb. Evid. by Loffl, 216 ; Hawk, 1 Car. & Kir. 266.
P. C, b. 2, ch. 46, § 3, n. (1) ; Mortimer * Supra, § 201 ; Coon v. The State, 13
V. Mortimer, 2 Hagg. Con. R. 315; Harris Sm. & M. 246 ; McCanu v. The State, Id.
V. Harris, 2 Hagg. Eccl. E. 409. ■ 471.
2 Lambe's case, 2 Leach, Cr. Cas. 625, ^ Cod. lib. 7, tit. 59 ; 1 Poth. on Obh
Tj29, per Grose, J. ; Warickshall's case. Part 4, ch. 3, § 1, numb. 798 ; Van Leeu-
1 Leach, Cr. Cas. 298 ; McNally's Evid. wen's Comm. b. 5, ch. 21, § 2 ; Mascard.
42, 47. De Probat. vol. 1, Concl. 344 ; supra,
8 Supra, § 197 ; Rex u. Bartlott, 7 C. § 179.
21*
246 LAW OF EVIDENCE. [PAHT 11.
party elsewhere than before a magistrate, or in court ; this term
embracing not only explicit and express confessions of crime, but
all those admissions of the accused, from which guilt may be
implied. All confessions of this kind are receivable in evidence,
being proved like other facts, to be weighed by the jury.
§ 217. Whether extrajudicial confessions uncorroborated by any
other proof of the corpus delicti, are of themselves sufficient to
found a conviction of the prisoner, has been gravely doubted. lu
the Roman law, such naked confessions amounted only to a se7m-
plena prohatio, upon which alone no judgment could be founded ;
and at most the party could only in proper cases be put to the
torture. But if voluntarily made, in the presence of the injured
party, or, if reiterated at diiferent times in his absence, and per-
sisted in, they were received as plenary proof.^ In each of the
English cases usually cited in favor of the sufficiency of this evi-
dence, there was some corroborating circumstance.^ In the United
States, tlie prisoner's confession, when the corpus d'elicti is not
otherwise proved, has been held insufficient for his conviction ;
and this opinion certainly best accords with the humanity of the
criminal code, and with the great degree of caution applied in
receiving and weighing the evidence of confessions in other cases ;
^ N. Everhard. Concil. xix. 8, Ixxii. 5, stable, and of the prisoner's guilt; part of
cxxxi. 1, clxv. 1, 2, 3, clxxxvi. 2, 3, 11 ; which evidence was also given in Tippet's
Mascard. De Probat, vol. 1, Concl. 847, case, Id. 509, who was indicted for the
349; Van Leeuwen's Comm. h. 5, ch. 21, same larceny; and there was the addi-
§§4, 5 ; B. Carpzov. Practic. Rerum tional proof, that he was an under hostler
Criminal. Pars II. Qusest. n. 8. in the same stable. And in all these cases,
2 Wheeling's case, 1 Leach, Cr. Cas. except that of Falkner and Bond, the eon-
349, n., seems to be an exception ; but it is fessions were solemnly made before the
too briefly reported to be relied on. It examining magistrate, and taken do-vvn in
is in these words : " But in the case of due form of law. In the case of Falkner
John Wheeliiuj, tried before Lord Kenyon, and Bond, the confessions were repeated,
at the Summer Assizes at Sahsbury, 1789, once to the officer who apprehended them,
it was determined that a prisoner may be and afterwards on hearing the depositions
convicted on his own confession, when read over, which contained the cliarge.
proved by le^al testimony, though it is In Stone's case. Dyer, 215, pi. 50, which
totally uncorioborated by any other evi- is a brief note, it does not appear that the
dence " lixi in Eldridge's case, Euss. & corpus delicti was not otherwise proved;
Ky. 410, who was indicted for larceny of on the contrary, the natural inference
a liorsu, the beast was found in his posses- from tlie report is, tliat it was. In Fran
sion, and he liad sold it for i£12, at'.er cia's ease, 6 State Tr. 58, there was much
asking .£35, which last was its fair vahie. corroborative evidence; but the prisoner
In tiie case of Falkner and Bond, Id. 481, was acquitted ; and tlie opinion of the
twe person robbed was called upon Im re- judges went only to the sufficiency of a
co/jni^ance, and it was proved that one of confession solemnly made, upon the ar-
the prisoners had endeavored to send a raignment of the party for high treason,
message to liim to keep him from appear- and this only upon the particular language
ing. in Wliite's case. Id. 508, there was of the statutes of Edw. VI. See Foster,
strong circumstantial evidence, both of the Disc. pp. 240, 241, 242.
larceny of the oats from the prosecutor's
CHAP, xn.] OF CONFESSIONS. 247
and it seems countenanced by approved writers on this branch of
the law.^
§ 218. In the proof of confessions, as in the case of admissions
in civil cases, the whole of what the prisoner said on the subject, at
the time of making the confession, should be taken together.^
This rule is the dictate of reason, as ■well as of humanity. The
prisoner is supposed to have stated a proposition respecting his
own connection with the crime ; but it is not reasonable to assume
that the entire proposition, with all its limitations, was contained in
one sentence, or in any particular number of sentences, excluding
all other parts of the conversation. As in other cases the mean-
ing and intent of the parties are collected from the whole writing
taken together, and all the instruments, executed at one time by
the parties, and relating to the same matter, are equally resorted
to for that purpose ; so here, if one part of a conversation is relied
on, as proof of a confession of the crime, the prisoner has a right
to lay before the court the whole of what was said in that conver-
sation; not being confined to so much only as is explanatory of
the part already proved against him, but being permitted to give
evidence of all that was said upon that occasion, relative to the
subject-matter in issne.^ For, as has been already observed
respecting admissions,* unless the whole is received and consid-
ered, the true meaning and import of the part which is good
evidence against him camiot be ascertained. But if, after the
whole statement of the prisoner is given in evidence, the prose-
cutor can contradict any part of it, he is at liberty to do so ; and
then the whole testimony is left to the jury for their consideration,
precisely as in other cases, where one part of the evidence is con-
tradictory to another.^ For it is not to be supposed that all the
parts of a confession are entitled to equal credit. The jury may
believe that part which charges the prisoner, and reject that which
is in his favor, if they see sufficient grounds for so doing.^ If
i Guild's case, 5 Halst. 163, 185 ; Long's » Per Lord C. J. Abbott, in the Queen's
case, 1 Hayw. 524, (455) ; Hawk. P. C, case, 2 B. & B. 297, 298 ; Rex v. Paine, 5
b. 2, ch. 46, § 18. [» Brown v. State, 32 Mod. 165; Hawlc. P. C, b. 2, ch. 46, § 5;
MLss. 433. Bergen v. The People, 17 Eex u. Jones, 2 C. & P. 629 ; Eex y. Hig-
Dl. 426.] gins, 2 C. & P. 603 ; Eex v. Hearne, 4 C.
2 The evidence must be confined to &P. 215; Rex d. Clewes, Id. 221 ; Rex u.
his confessions in regard to the particular Steptoe, Id. 397 ; Brown's case, 9 Leigh,
offence of which he is indicted. If it re- 633.
lates to another and distinct crime, it is * Supra, § 201, and cases there cited,
inadmissible. Eegina v. Butler, 2 Car: & ^ Rex v. Jones, 2 C. & P. 629.
Kir. 221. 6 Hex v. Higgins, 3 C. & P. 603; Eex
248 LAW OF EVIDENCE. [PART H,
what he said in his own favor is not contradicted by evidence
offered by the prosecutor, nor improbable in itself, it will naturally
be believed by the jury ; but they are not bound to give weight to
it on that account, but are at liberty to judge of it like other evi-
dence, by all the circumstances of the case. And if the confession
implicates other persons by name, yet it must be proved as it was
made, not omitting the names ; but the judge will instruct the
jury that it is not evidence against any but the prisoner who
made it.^
§ 219. Before any confession can be received in evidence in a
criminal case, it must be shown that it was voluntary. The course
of practice is, to inquire of* the witness whether the prisoner had
been told that it would be better for him to confess, or worse for
him if he did not confess, or whether language to that efect had
been addressed to him.^ " A free and voluntary confession," said
Eyre, C. B.,^ " is deserving of the highest credit, because it is pre-
sumed to flow from the strongest sense of guilt, and therefore it is
admitted as proof of the crime to which it refers ; but a confession
forced from the mind by the flattery of hope, or by the torture of ■
fear, comes in so questionable a shape, when it is to be considered
as the evidence of guilt, that no credit ought to be given to it ; and
therefore it is rejected."* The material inquiry, therefore, is,
whether the confession has been obtained by the influence of hope
or fear, applied by a third person to the prisoner's mind. The
evidence to this point, being in its nature preliminary, is addressed
V. Steptoe, 4 C. & P. 397 ; Eex v. Clewes, tending to imiilicate the prisoner in the
4 C. & P. 221 ; Eespublica v. MoCarty, 2 crime charged, even though, in terms, it
Dall. 86, 88 ; Bower v. The State, 5 Miss, is an accusation of another, or a refusal to
364; supra, §§ 201, 215; [Stote v. Mahon, confess. Rex v. Tyler, 1 C. & P. 129;
32 Vt. 241.] Eex v. Enoch, 5 C. & P. 539. See fur-
1 Eex V. Hearne, 4 C. & P. 215; Rex ther, as to the object of the rule, Eex v.
V. Clewes, Id. 221, per Littledale, J., who Court, 7 C. & P. 486, per Littledale, J. ;
said he had considered this point very The People v. Ward, 15 Wend. 231.
■ much, and was of opinion that the names ^ In Warickshall's case, 1 Leach's Or.
ought not to be left out. It may be added, Cas. 299; McNally's Evid. 47; Knapp's
that the credit to be given to the confes- case, 10 Pick. 489, 490 ; Chabbock's case,
Bion may depend much on the probability 1 Mass. 144.
that the persons named were likely to en- * In Scotland, this distinction between
gage in such a transaction. See also Rex voluntary confessions and those which
V. Fletcher, Id. 250. The point was de- have been extorted by fear or elicited by
cided in the same way, in Eex v. Walker, promises is not recognized, but all confes-
6 C. & P. 175, by Gurney, B., who said it sions, obtained in either mode, are admis-
had been much considered by the judges, sible at the disfl-etion of the judge. In
Mr. Justice Parke thought otherwise, strong cases of undue influence, the course
Barstow's case, Lewin's Cr. Cas. 110. is to reject them ; otherwise, the credi-
2 1 Phil, on Evid. 401 ; 2 East, P. C. biUty of the evidence is left to the jury.
659. The rule excludes not only direct See Alison's Criminal Law of Scotland,
confessions, but any other declaration pp. 681, 582.
CHAP. XII.] OP CONFESSIONS. 249
to the judge, wbo admits the proof of the confession to the jury, or
rejects it, as he may or may not find it to have been drawn from
the prisoner, by the application of those motives.^ This matter
resting wliolly in the discretion of tlie judge, upon all the circum-
stances of the case, it is difficult to lay down particular rules, d
priori, for the government of that discretion. The rule of law,
applicable to all cases, only demands that the confession shall
have been made voluntary, without the appliances of hope or fear,
by any other person ; and whether it was so made or not is for
him to determine, upon consideration of the age, sitiiation, and
character of the prisoner, and the circumstances under which it
was made.^ Language addressed by others, and sufficient to over-
come the mind of one, may have no effect upon that of another ;
a consideration which may serve to reconcile some contradictory
decisions, where the principal facts appear similar in the reports,
but the lesser circumstances, though often very material in such
preliminary inquiries, are omitted. But it cannot be denied that
this rule has been sometimes extended quite too far, and been
applied to cases where there could be no reason to suppose that
the inducement had any influence upon the mind of the prisoner.^
1 Boyd V. The State, 2 Humphreys, in order to render a confession admissible
E. 37 ; Regina v. Martin, 1 Armstr. Mac- in evidence, it must be perfectly voluu-
artn. & Ogle, E. 197 ; The State v. Grant, tary ; and there is no doubt that any in-
9 Shepl. 171; United States v. Nott, 1 ducement, in the nature of a promise or
McLean, 499 ; The State v. Harman, 3 of a tlireat, held out by a person in au-
Harringt. 567. The burden of proof, to thority, vitiates a confession. The de-
show that an inducement has been lield cisions to that effect have gone a long
out, or improper influence used, is on the way. Whether it would not have been
prisoner. Reg. o. Garner, 12 Jur. 944; better to have left the whole to go to the
2 C. & K. 920. ■ jury,.it is now too late to inquire ; but I
2 McNally's Evid. 43 ; Nute's case, 6 think there has been too much tenderness
Petersdorf's Abr. 82 ; Knapp's case, 10 towards prisoners in this matter. I con-
Pick. 496 ; United States v. Nott, 1 Mc- fess that I cannot look at the decisions
Lean, 499; supra, § 49; Guild's case, 5 without some shame, when I consider
Halst. 163, 180 ; Drew's case, 8 C. & P. what objections have prevailed to prevent
140; Hex v. Thomas, 7 C. & P. 345; Rex the reception of confessions in evidence;
II. Court, Id. 486. and I agree with the observation, — that
^ (Tlie cases on this subject have re- the rule has been extended quite too far,
cently been very fully reviewed in Reg. and that justice and common sense have
V. Baldry, 16 Jur. 599, [decided in the too frequently been sacrified at the shrine
Court of Criminal Appeal, April 24, 1852, of mercy." Lord CampbeU, C. J., stated
12 Eng. Law & Eq. E. 590.] In that case, the rule to be, that " if there he any
tlie constable who apprehended the pris- worldly advantage held out, or any harm
oner, having told him the nature of the, tlireatened, the confession must bo ex-
charge, said : " He need not say any thing eluded;" in which the other judge con-
to criminate himself; what he did say curred.) [In State v. Grant, 22 Maine, 171,
would be taken down, and used as evi- the general rule is thus stated: " To ex-
dence against him ; " and the prisoner elude the confession, there must .ijipcar to
thereupon having made a confession, the have been held out some fear of personal
court held the confession admissible, injury, or hope of personal benefit, of a
Parke, B., said ; " By the law of England, temporal nature ; " and this rule was said
250 LAW OF EVIDENCE. [PAET 11.
§ 220. The rule under consideration has been illustrated in a
variety of cases. Thus, where the prosecutor said to the prisoner,
" Unless you give me a more satisfactory account, I will take you
before a magistrate," evidence of the confession thereupon made
was rejected.! n ^^s also rejected, where the language used by
the prosecutor was, " If you will tell me where my goods are, I
will be favorable to you; "^ where the constable who arrested the
prisoner, said, " It is of no use for you to deny it, for there are
the man and boy who will swear they saw you do it ; " ^ where the
prosecutor said, " He only wanted his money, and if the prisoner
gave him that he might go to the devil, if he pleased ; " * — and
where he said he should be obliged to the prisoner, if he would
tell all he knew about it, adding, " If you will not, of course we
can do nothing," meaning nothing for the prisoner.^ So where the
prisoner's superior officer in the police said to him, " Now be
cautious in the answers you give me to the questions I am going
to put to you about this watch ; " the confession was held inad-
missible.^ There is more dif&culty in ascertaining what is such
a threat, as will exclude a confession ; though the principle is
equally clear, that a confession induced by threats is not volun-
tary, and therefore cannot be received.^
to be "well expressed" In Common- oner made no reply for a minute or two ,
wealth V. Morey, 5 Cush. 461, 463. See the prosecutor then told the prisoner he
bIso Spears v. Ohio, 2 Ohio, n. s. 583.] thought it was better for all concerned in
[* See also rife v. Commonwealth, 29 all cases for the guilty to confess ; the
jPenn. St. 429.] prisoner then said he supposed he should
1 Thompson's case, 1 Leach's Cr. Cas. have to stay there whether he confessed
325. See also Commonwealth v. Harraan, or not ; the prosecutor replied that he
4 Barr, 269 ; The State v. Cowan, 7 Ired. supposed he would, and in his opinion it
239. • would made no difference as to legal pro-
2 Cass's case, 1 Leach's Cr. Cas. 328, ceedings, and that it was considered hon-
note ; Boyd v, 'The State, 2 Humph. R. orable in all cases if a person was guilty,
37. to confess. Immediately after tliis, the
2 Rex V. Mills, 6 C. & P. 146. prisoner made confession, and it was held
* Rex V. Jones, Russ. & Ry. 152. See admissible. Commonwealth v. Morey, 1
also Griffin's case, Id. 151. Gray, 461.]
5 Rex V. Patridge, 7 C. & P. 651. See ' Thornton's case, 1 Mood. Cr. Cas.
also Guild's case, 5 Halst. 163. 27 ; Long's case, 6 C. & P. 179 ; Roscoe's
^ Regina v. Fleming, 1 Armst. Mac- Grim. Evid. 34; Dillon's case, 4 DaU.
artn. & Ogle, R. 330. But where the ex- 116. Where the prisoner's superior in
amining magistrate said to the prisoner, the post-offlce said to the prisoner's wife,
" Be sure you say nothing but the truth, while her husband was in custody for
or it will be taken against you, and may opening and detaining a letter, " Do not
be giv3u in evidence against you at your be frightened ; I hope nothing will hap-
trial," the statement thereupon made was pen to your husband beyond the loss of
held admissible. Reg. v. Holmes, 1 C. & his situation ; " the prisoner's subsequent
K. 248 ; Reg. v. Atwood, 5 Cox, C. C. confession was rejected, it appearing that
822, S. P. [One under arrest for steahng the wife might have communicated this
was visited in jail by the prosecutor, who to the prisoner. Regina v. Harding, 1
said to him, that if he wished for any con- Armst. Macartn. & Ogle, R. 340. Where
versation he could have a chance ; the pris- a girl, thirteen years old, was charged
CHAP. XII.] OF CONFESSIONS. 251
§ 220a. It is extremely difficult to reconcile these and similar
cases with the spirit of the rule, as expounded by Chief Baron
Byre, whose language is quoted in a preceding section. The dif-
ference is between confessions made voluntarily, and those ^^ forced
from the mind by the flattery of hope, or by the torture of fear."
If the party has made his own calculation of the advantages to be
derived from confessing, and thereupon has confessed the crime,
there is no reason to say that it 'is not a voluntary confession. It
seems that, in order to exclude a confession, the motive of hope or
fear must be directly applied by a third person, and must be suf-
ficient, in the judgment of the court, so far to overcome the mind
of the prisoner, as to render the confession unworthy of credit.^
§ 221. But though promises or threats have been used, yet if it
appears to the satisfaction of the judge, that their influence was
totally done away before the confession was made, the evidence
will be received. Thus, where a magistrate, who was also a
clergyman, told the prisoner that if he was not the man who
struck the fatal blow, and would disclose all he knew respecting
the murder, he would use all his endeavors and influence to pre-
vent any ill consequences from falling on him ; and he accordingly
wrote to the Secretary of State, and received an answer, that
mercy could not be extended to the prisoner; which answer he
communicated to the prisoner, who afterwards made a confession
to the coroner ; it was held, that the confession was clearly vol-
untary, and as such it was adrditted.^ So, where the prisoner had
with administering poison to her mistress, true principle recognized as above quoted
with intent to murder; and tlie surgeon from Ch. Baron Eyre. [*Some of the
in attendance had told her, "it would be American states have relaxed the rule of
better for her to speak the truth ; " it was the former English practice excluding
held that lier confession, thereupon made, confessions, upon the sUghtest suspicion
was not admissible. Eeg. v. Garner, 12 of any influence brought to bear upon the
Jur. 943 ; 1 Donison's Cr. Cas. E. 329. mind of the accused. Hence if the pris-
[A confession m.ide after the inducement oner is told tliat confession of guilt could
of a threat held out by A when B was not put him in any worse condition, and
present was held to be the same thing as he had better tell the truth at all times,
if B had used the threat ; and as B was his confession is still admissible. Fonts
the person likely to prosecute (he being v. The State, 8 Ohio, N. s. 98. And when
the owner of the property in connec- the prisoner was told that it was of no
tion witli which the offence was com- use to deny his guilt ; that the gold pieces
mitted), he was a person in authority, were found where he passed thcni, and he
so that the confession made after the had better o\^■n up, it was lield not to
inducement held out in his presence amount to a threat, but only to an iuduce-
was not admissible in evidence. Eegi- ment, and so was admissible under the
na V. Luckhurst, 22 Eng. Law and Eq. statute of Indiana. State u. Freeman,
604.] 12 Ind. 100.
1 See Eegina v. Baldry, 16 Jur. 599; ^ ijex v. Clewes, 4 C. & P. 221. [See
12 Eng. Law and Eq. R. 590 ; where this State v. Vaigneur, 5 Rich. 391.]
subject was very fully discussed, and the
252 LAW OF EVIDENCE. [PAET 0.
been induced, by promises of favor, to make a confession, which
was for that cause exckided, but about five months afterwards, and
after having been solemnly warned by two magistrates that he
niust expect death and prepare to meet it, he again made a full
confession, this latter confession was admitted in evidence.^ In
this case, upon much consideration, the rule was stated to be,
that, although an original confession may have been obtained by
improper means, yet subsequent confessions of the same or of like
facts may be admitted, if the court believes, from the length of
time intervening, or from proper warning of the consequences
of confession, or from other circumstances, that the delusive hopes
or fears, under the influence of which the original confession was
obtained, were entirely dispelled.^ In the absence of any such
circumstances, the influence of the motives proved to have been
offered will be presumed to continue, and to have produced the
confession, unless the contrary is shown by clear, evidence ; and
the confession will therefore be rejected.^ Accordingly, where an
inducement has been held out by an officer, or a prosecutor, but
the prisoner is subsequently warned by the magistrate, that what
he may say will be evidence against himself, or that a confession
will be of no benefit to him, or he is simply cautioned by the
magistrate not to say any thing against himself, his confession,
afterwards made, will be received as a voluntary confession.*
1 Guild's case, 5 Halst. 163, 168. upon express promises of favor by tlie
^ Guild's case, 5 Halst. 180. But other- officer. After being detained forty-four
wise the evidence of a subsequent confes- hours in the watch-house, he was brought
sion, made on the basis of a prior one before the Mayor, in the same apartment
unduly obtained, will be rejected. Com- where he had made the confession, and
monwealth v. Harman, 4 Barr, 269 ; The his examination was taken in presence of
State y. Roberts, 1 Dev. 259. t!t£ same hi(/h constable. The mayor knew
^ Robert's case, 1 Devereux, R. 259, nothing of the previous confession; and
264; Maynell's case, 2 Lewins, Cr. Gas. gave the prisoner no more than the -usual
122 ; SlieiTuigton's case. Id, 123 ; Rex v. caution not to answer any questions un-
Cooper, 5 C. & P. 535. less he pleased, and telling him that he
* Rex V. Howes, 6 C. & P. 404 ; Rex was not bound to criminate himself. In
V. Ricliards, 5 C. & P. 318 ; Nute's case, this examination, the same confession was
2 Russ. on Crimes, 648; Joy on the Ad- repeated; but the judge rejected it, as
missibility of Confessions, pp. 27, 28, inadmissible; being of opinion that, being
69-75 ; Hex v. Bryan, Jehb's Cr. Gas. made in the same room where it was first
157. If the inducement was held out by made, .and under the eye of the s.amo
a person of superior authority, and the police-officer to whom it was made, there
contbssion was afterwards made to one of was " strong reason to infer that tlie last
inferior autliority, as a turnkey, it seems examination was but intended to put in
inadmissible, unless the prisoner was iirst due form of law the first confession, and
cautioned by the latter, iiex v. Cooper, that the promise of favor continued as
6 C. & P. 535. In the United States v. first made." The legal presumption, he
Chapmiui, 4 Am. Law Jour. 440, n. s., said, was, that the influence, which in-
the prisonei' had made a confession to the duced the confession to the officer, con-
Uigh con.siable who had him under arrest, tinned when it was made to the mayor;
CHAP. XII.] OF CONFESSIONS. 253
§ 222. In regard to the person hy whom the inducements were
offered, it is very clear, that if they were offered by the prosecutor,^
or by his wife, the prisoner being his servant,^ or by an officer
having tlie prisoner in custody,^ or by a magistrate,* or, indeed,
by any one having authority over him, or over the prosecution
itself,^ or by a private person in the presence of one in authority,^
the confession will not be deemed voluntary and will be rejected.
The authority, known to be possessed by those persons, may well
be supposed both to animate the prisoner's hopes of favor, on the
one hand, and on the other to inspire him with awe, and in some
degree to overcome the powers of his mind. It has been argued,
that a confession made upon the promises or threats of a person,
erroneously believed by the prisoner to possess such authority,
the person assuming to act in the capacity of an officer or magis-
trate, ought, upon the same principle, to be excluded. The prin-
ciple itself would seem to require such exclusion ; but the point
is not known to have received any judicial consideration.
§ 223. But whether a confession, made to a person who has no
authority, upon an inducement held out by that person, is receiv-
able, is a question upon which learned judges are known to enter-
tain opposite opinions.' In one case, it was laid down as a settled
and this presumption it was the duty of * Rudd's case, 1 Leach's Cr. Cas. 135 ;
the prosecutor to repel. Guild's case, 5 Halst. 163.
1 Thompson's case, 1 Leach's Cr. Cas. ^ Rex v. Parratt, 4 C. & P. 570, which
325 ; Cass's case, Id. 328, n. ; Rex v. was a confession by a sailor to liis cap
Jones, Russ. & R. 152 ; Rex v. Griffin, Id. tain, who threatened him with prison, on
161; Chabboclc's case, 1 Mass. 144; Rex a charge of stealing a watch. Rex ».
V. Gibbons, 1 C. & P. 97, note (a) ; Rex Enoch, 5 C. & P. 539, was a confession
V. Partridge, 7 C. & P. 551 ; Robert's made to a woman, in whose custody the
case, 1 Dever. 259 ; Rex v. Jenkins, Russ. prisoner, who was a female, had been left
& Ry. 492 ; Regina v. Hearn, 1 Car. & by the officer. The official character
Marsh. 109. See also Phil. & Am. on of the person to whom the confession is
Evid. 430, 431. made does not affect its admissibility,
2 Rex V. XJpchurch, 1 Mood. Cr. Cas. provided no inducements were employed.
465 ; Regina v. Hewett, 1 Car. & Marshm. Joy on Confessions, &c., pp. 59-61 ; Rex
534 ; Rex v. Taylor, 8 C. & Pj» 733. In v. Gibbons, 1 C. & P. 97, note fa) ;
Rex V. Simpson, 1 Mood. Cr. Cas. 410, Knapp's case,' 10 Pick. 477; Hosier's
the inducements were held out by the case, 6 Penn. Law Joum. 90 ; 4 Barr,
mother-in-law of the prosecutor, in his ' 264.
house, and in the presence of his wife, ^ Robert's case, 1 Dever. 259 ; Rex v.
who was very deaf ; and the confessions Pountney, 7 C. & P. 302 ; Reg. v. Laugh-
thus obtained were held inadmissible. See er, 2 C. & K. 225 ; [Reg. v. Luckhurst,
Mr. Joy's Treatise on the Admissibility 22 Eng. Law & Eq. R. 604.]
of Confessions, pp. 6-10. ' So stated by Parke, B., in Rex u.
" Rex V. Swatkhis, 4 C. & P. 548 ; Rex Spencer, 7 C. & P. 776. See also Rex v.
V. Mills, 6 C. & P. 146 ; Rex v. Sextons, Pountney, Id. 302, per Alderson, B. ;
6 Petersd. Abr. 84 ; Rex v. Shepherd, 7 Rex v. Row, Russ. & R. 153, per Cham-
C. & P. 579. See also Rex v. Thornton, bre, J. [Shaw, C. J., in giving the opin-
1 Mood. Cr. Cas. 27. But see Common- ion of the court in Commonwealth v.
wealth V. Hosier, 4 Barr, 264 " Morey, 1 Gray, 461, 463, said, " Of
VOL. r. 22
254 LAW OF BVIDENCB. [PAPT n.
rule, that any person telling a prisoner that it would be better for
him to confess, will always exclude any confession made to that
person.^ And this rule has been applied in a variety of cases,
both early and more recent.^ On the other hand, it has been
held, that a promise made by an indifferent person, who interfered
officiously, without any kind of authority, and promised, without
the means of performance, can scarcely be deemed sufficient to
produce any effect, even on the weakest mind, as an inducement
to confess ; and, accordingly, confessions made under such circum-
stances have been admitted in evidence.^ The difficulty experi-
enced in this matter seems to have arisen from the endeavor to'
define and settle, as a rule of law, the facts and circumstances
which shall be deemed, in all cases, to have influenced the mind
of the prisoner, in making the confession. In regard to persons
in authority, there is not much room to doubt. Public policy,
also, requires the exclusion of confessions, obtained by means of
inducements held out by such persons. Yet even here, Ihe age,
experience, intelligence, and constitution, both physical and men-
tal, of prisoners, are so various, and the power of performance so
different, in the different persons promising, and under different
circumstances of the prosecution, that the rule will necessarily
sometimes fail of meeting the truth of the case. But as it is
thought to succeed in a large majority of instances, it is wisely
adopted as a rule of law applicable to them all. Promises and
threats by private persons, however, not being found so uniform
in their operation, perhaps may, with more propriety, be treated
as mixed questions of law and fact ; the principle of law, that
the confession must be voluntary, being strictly adhered to, and the
question, whether the promises or threats of the private individuals
course, such inducement must be held " Rex v. Hardwick, 6 Petersd. Abr. 84.
out to the accused by some one who has, per Wood, B. ; Rex v. Taylor, 8 C. & P
or who is supposed by the accused to 734. See accordingly Rex v. Gibbons, 1
to have, some power or authority to as- C. & P. 97 ; Rex v. Tyler, Id. 129 ; Rex
sure to him the promised good, or cause v. Lingate, 6 Petersd. Abr. 84 ; 2 Lewin's
or influence the threatened injury." And Cr. Cas. 125, note. In Rex v. Wild, 1
to support this, he cites Commonwealth Mood. Cr. Cas. 452, the prisoner, a b'oi
V. Taylor, 5 Gush. 606.] under fourteen, was required to' kneei
1 Rex V. Dunn, 4 C. & P. 543, per and was solemnly adjured to tell th.
Bosanquet, J. ; Kex v. Slaughter, 8 C. & truth. The conviction upon his confes
I". 734. sion thus made, was held right, but thi
2 See, accordingly. Rex v. Kingston, mode of obtaining the confession was ven
4 C. & P. 387 ; Rex v. Clewes, Id. 231 ; much disapproved, liex v. Row. Rust
Rex V. Walkley, 6 C. & P. 175 ; Guild's & Ry. 158 ; [Commonwealth v. Horno.
case, 6 Halst. 168 ; Knapp's case, 9 Pick. Allen, 153.]
496, 600-510 ; Rex v. Thomas, 6 C. & P.
683.
CHAP. XII.J
OP CONFESSIONS.
255
who employed them, were sufficient to overcome the mind of the
prisoner, being left to the discretion of the judge, under all the cir-
cumstances of the case.^
§ 224. The same rule, that the confession must be voluntary,
1 In Scotland, it is left to the jury.
See Alison's Criminal Law of Scotland,
pp. 681, 582 J supra,^ § 219, u. Mr. Joy-
maintains the unqualified proposition, that
" a confession is admissible in evidence,
although an inducement is held out, if
euch inducement proceeds from a person
not in authority over the prisoner ; " and
it is strongly supported by the authorities
he cites, which are also cited in the notes
to this section. See Joy on the Admissi-
bility of Confessions, sec. 2, pp. 23-33.
His work has been published since the
first edition -of this book ; but upon a de-
liberate revision of the point, I have con-
cluded to leave it, where the learned
judges have stated it to stand, as one on
which they were divided in opinion.
In a recent case, in England, the rule
stated in the text is admitted to he the
best rule, though the learned judges felt
themselves restricted from adopting it by
reason of previous decisions. It was a
prosecution against a female servant, for
concealing the death of her bastard
child; and the question was upon the
admissibility of a confession made to her
mistress, who told her " she had better
speak the truth." The judgment of the
court was delivered by Parke, B.,- as fol-
lows : " The pases on this subject have
gone quite far enough, and ought not to
to be extended. It is admitted that the
confessions ought to be excluded unless
voluntary, and the judge, not the jury,
ought to determine whether they are so.
One element in the consideration of the
question as to their being voluntary is,
whetlier the threat or inducement was
such as to be likely to influence the pris-
oner. Perhaps it would have been better
to have held (when it was determined
that the judge was to decide whether the
confession was voluntary) that in all
cases lie was to decide that point upon
his own view of all tlie circumstances,
inchuling the nature of the threat or in-
ducement, and the character of the per-
son h(il<ling it out, together; not neces-
sarily excluding the confession on account
of tlie character of the person iiolding out
the inducement or throat. But a rule has
been laid down in different precedents by
wliicli we are bound, and that is, if the
tlueat or inducement is held out, actually
or constructively, by a person m authority,
it cainiot he received, however slight the
threat or inducement ; and the prosecutor.
magistrate, or constable is stich a person,
and so the master or mistress may be. K
not held out by one in authority, they are
clearly admissible. The authorities are
collected in Mr. Joy's very able treatise
on Confessions and Challenges, p. 23.
But, in referring to the cases where the
master and mistress have been held to be
persons in authority, it is only when the
offence concerns the master or mistress
that their holding out the threat or prom-
ise renders the confession inadmissible.
In Rex V. Upchurch {Ey. & M. 865), the
offence was arson of the dwelling-house,
in the management of which the mistress
took a pari. Reg. v. Taylor (8 Car. & P.
733) is to the like effect. So Rex v. Car-
rington (Id. 109), and Rex v, Howell
(Id. 634). So where the threat was used
by the master of a ship to one of the crew,
and the offence committed on, board the
ship by one of the crew towards another ;
and in that case also the master of the
ship threatened to apprehend him ; and,
the offence being a felony, and a felony
actually committed, would have a power
to do so on reasonable suspicion that the
prisoner was guilty. In Rex v. Warring-
ham, tried before me at the Surrey
Spring Assizes, 1851, the confession was
in . consequence of what was said by the
mistress of the prisoner, she being in the
habit of managing the shop, and the of-
fence being larceny from the shop. This
appears from my note. In the present
case, the offence of the prisoner in killing
her child, or concealing its dead body,
was in no way an offence against the mis-
tress of the house. She was not the pro-
secutrix then, and there was no probabil-
ity of herself or the husband being the
prosecutor of an indictment for that of-
fence. In practice, the prosecution is
always the result of a coroner's inquest.
Therefore we are clearly of opinion that
her confiassion was properly received."
See Reg. v. Moore, 16 Jur. 622 ; 12 Eng.
L. & Eq. R. 583.
In South Carolina it has been held, that
where the prisoner, after due warning of
all the consequences, and the allowance
of sufficient time for reflection, confesses
his guilt to a private person, who has no
control over his person or the prosecu-
tion ; the confession is admissible in evi-
dence, although the person may have
influence and ability to aid him. The
State V. Kirby, 1 Strobhart, 166.
256 LAW OP EVIDENCE. [PABT U,
is applied in cases where the prisoner has been examined before
a magistrate, in the course of which examination tlie confession is
made. The practice of examining tlie accused was familiar in
the Roman jurisprudence, and is still continued in continental
Europe ; ^ but the maxim of the common law was, Wemo tenetur
prodere seipsum; and therefore no examination of the prisoner
himself was permitted in England, until the passage of the statutes
of Philip and Mary.^ By these statutes, the main features of
which have been adopted in several of the United States,^ the
justices, before whom any person shall be brought, charged with
any of the crimes therein mentioned, shall take the examination
of the prisoner, as well as that of the witnesses, in writing, which
the magistrate shall subscribe, and deliver to the proper officer
of the court where the trial is to be had. The signature of the
prisoner, when not specially required by statute, is not necessary ;
though it is expedient, and therefore is usually obtained.* The
certificate of the magistrate, as will be hereafter shown in its
proper place,^ is conclusive evidence of the manner in which the
examination was conducted ; and, therefore, where he had certi-
fied that the prisoner was examined under oath, parol evidence
to show that in fact no oath had been administered to the prisoner
1 The course of proceeding, in such ticular depositions, he is entitled to have
cases, is ftilly detailed in B. Carpzov. them read at the trial, by way of explana-
Practicae Rerum Criminal. Pars III., tion. Dennis's case, 2 Lew. Cr. Cas. 261.
113, per tot. See further, Rowland v. Ashby, Ry. & M.
2 1 & 2 Phil. & M. c. 13 ; 2 & 3 Phil. 231, per Best, C. J. ; Rex v. Simons, 6
& M. c. 10; 7 Geo. IV., c. 64; 4 Bl. C. &P. 540; Regina w. Arnold, 8 C. & P.
Comm. 295. The object of these statutes, 621.
it is said, is to enable the judge to see ^ See New York Revised Statutes, Part
whether the offence is bailable, and that 4, c. 2, tit. 2, §§ 14, 15, 16, 26 ; Bellinger's
both the judge and jury may see whether case, 8 Wend. 595, 599 ; Elmer's Laws of
the witnesses are consistent or contradic- New Jersei/, p. 450, § 6 ; Laws of Alabama,
tory, in their accounts of the transaction. (Toulmin's Digest,) tit. 17, c. 3, § 2, p.
The prisoner should only be asked, wheth- 219; Laws of Tennessee (Carruthers and
er he wishes to say any thing in anwer to Nicholson's Digest), p. 426 ; Nonh Cam-
the charge, wlien he had heard all that Una, Rev. St. c. 35, § 1 ; Laws of Missis-
the witnesses in support of it had to say sippi (Alden and Van Hoesen's Digest),
against him. See Joy on Confessions, &c., c. 70, § 5, p. 532 ; Hutchinson's Dig. c. 50,
pp. 92-94; Rex v. Saunders, 2 Leach's art. 2, § 5; Laws of Delaware (Revised
Cr. Cas. 652 ; Rex v. Fagg, 4 C. & P. 567. Code of 1829), p. 63 ; Brevard's Laws of
But if he is called upon to make his an- South Carolina, vol. 1, p. 460 ; Laws of
Bwer to the charge, before he is put in Missouri (Revision of 1835), p. 476; Id.
possession of all the evidence against him. Rev. Stat. 1845, c. 138, § 15-17. See also
this irregularity is not sufficient to exclude Massachusetts Rev. Stat. c. 85, § 25 ; Res-
the evidence of his confession. Rex v. publica v. McC^rty, 2 Dall. 87, per Mc-
Bell, 5 C. & P. 163. His statement is not Kean, C. J.
an answer to the depositions, but to the ^ 1 Chitty's Crim. Law, 87 ; Lambe's
charge. He is not entitled to have the case, 2 Leach's Cr. Cas. 625.
depositions first read, as a matter of right. ^ Infra, § 227.
But if his examination refers to any par-
CHAP. XII.] OF CONFESSIONS. 257
was held inadmissible.^ But the examination cannot be given in
evidence until its identity is proved.^ If the prisoner has signed
it with his name, this implies that he can read, and it is admitted
on proof of his signature ; but if he has signed it with his mark
only, or has not signed it at all, the magistrate or his clerk must
De called to identify the writing, and prove . that it was truly read
to the prisoner, who assented to its correctness.^
§ 225. The manner of examination is, therefore, particularly
regarded ; and if it appears that the prisoner had not been left
wholly free, and did not consider himself to be so, in what he was
called upon to say, or did not feel himself at liberty wholly to
decline any explanation or declaration whatever, the examination
is not held to have been voluntary.* In such cases, not only is
the written evidence rejected, but oral evidence will not be received
of what the prisoner said on that occasion.^ The prisoner, there-
fore, must not be sworn.® But where, being mistaken for a wit-
ness, he was sworn, and afterwards, the mistake being discovered,
the deposition was destroyed ; and the prisoner, after having been
cautioned by the magistrate, subsequently made a statement ;
this latter statement was held admissible.^ It may, at first view,
appear unreasonable to refuse evidence of confession, merely
because it was made under oath, thus having in favor of its truth,
one of the highest sanctions known in the law. But it is to be
1 Eex V. Smith & Homage, 1 Stark, course, in substance, was recommended
B. 242; Eex v. Rivers, 7 C. & P. 177; by Lord Denman, in Regina v. Arnold,
Regina v. Pikesley, 9 C. & P. 124. 8 C. & P. 622. The omission of this
''^ Hawlc. P. C, b. 2, C;46, § 3, note (1). course, however, will not alone render tho
' Kex V. Chappel, 1 M. & Rob. 395. confession inadmissible.
* The proper course to be pursued in ^ Rex v. Rivers, 7 C. & P. 177 ; Rex
these cases, by the examining magistrate, v. Smith d, al. 1 Stark. R. 242 ; Harman's
is thus laid down by Gurney, B., in Rex case, 6 Pennsyl. Law Journ. 120. But an
V. Greene, 5 C. &P. 312: " To dissuade a examination, by way of question and an-
prisoner was wrong. A prisoner ought to swer, is now held good, if it appears free
be told that liis confessing will not operate from any other objection. Rex v. EUis,
at all in his favor ; and that he must not Ry. & M. 432 ; 2 Stark. Evid. 29, note (g) ;
expect any favor because he makes a con- though formerly it was held otherwise, in
fession; and that, if any one has told him Wilson's case. Holt, R. 597. See ace.
tliat it will be better for him to confess, or Jones's case, 2 Russ. 658, n. ; Roscoe's
ivorse for him if he does not, he must pay Grim. Evid. 44. So, if the questions were
flo attention to it ; and that any thing he put by a police-officer. Rex v. Thornton, 1
says to criminate himself will be used as Mood. Cr. Gas. 27 ; or, by a fellow-pris
evidence against him on his trial. After oner, Eex v. ShaV, 6 C. & P. 372, they
that admonition, it ought to be left entirely are not, on that account, objectionable,
to himself, whether he will make any See also Eex v. Wild, 1 Mood. Cr. Gas.
statement or not ; but he ought not to be 452 ; infra, § 229.
dissuaded from making a perfectly volun- ^ Bull. N. P. 242; Hawk. P. C., b. 2,
tary confession, because that is shutting ch. 46, § 3.
one of the sources of justice." The same ' Eex v. Webb, 4 C. & P. 564.
22*
258 LAW OP BVIDENCB. [PABT H.
observed, that none but voluntary confessions are admissible ; and
that if to the perplexities and embarrassments of the prisoner's
situation are added the danger of perjury, and the dread of addi-
tional penalties, the confession can scarcely be regarded as volun-
tary ; but, on the contrary, it seems to be made under the very
influences which the law is particularly solicitous to avoid. But
where the prisoner, having been examined as a witness, in a
prosecution against another person, answered questions to which
he might have demurred, as tending to criminate himself, and
which, therefore, he was not bound to answer, his answers are
deemed voluntary, and, as such, may be subsequently used against
himself, for all pvirposes ; ^ though where his answers are com-
pulsory, and under the peril of punishment for contempt, they are
not received.^
§ 226. Thus, also, where several persons, among whom was the
prisoner, was sununoned before a committing magistrate, upon an
investigation touching; a felony, there being at that time no specific
charge against any person ; and the prisoner, being sworn with
the others, made a statement, and at the conclusion of the exami-
nation he was committed for trial ; it was held, that the statement
so made was not admissible in evidence against the prisoner.^
This case may seem, at the first view, to be at variance with what
has been just stated as the general principle, in regard to testi-
mony given in another case ; but the difference lies in the different
natures of the two proceedings. In the former case, the mind of
the witness is not disturbed by a criminal charge, and, moreover,
1 2 Stark. Evid. 28 ; "WTieater's ease, 2 Mahon, 15 N. Y. Ct. App. 384, it was
Lew. Cr. Cas. 157 ; 2 Mood. Cr. Cas. 45, held, that where one arrested, without
8. 0. ; Joy on Confessions, &c., pp. 62-66 ; warrant, upon suspicion of being guilty of
Hawarth's case, Eosooe's Grim. Evid. 45; murder, was examined before the coroner,
Rex V. Tuby, 5 C. & I". 530, cited and at the inquest, upon oath as a witness,
agreed in Eex v. Lewis, 6 C. & P. 161 ; that his statements, so made, could not be
Eex V. Walker, cited by Gurney, B., in given in evidence against him on his trial
the same case. But see Rex v. Davis, 6 for murder. But in a somewhat similar
C. & P. 177, contra. [See also Hendrick- state of facts, the decision was different in
son V. The People, 6 Selden, (N. Y.) 13.] Schoeffler v. State, 3 Wis. 823. It would
[* Commonwealth v. King, 8 Gray, 501.] seem that, upon principle, if the witness
2 Supra, § 193, note ; infra, § 451 ; Re- volunteered to give evidence, with the
gina V. Garbett, 2 C. & K. 474. But where full understanding that he was at liberty
one was examined before the gi;and-jury to decline, and that what he said would
as a witness, on a complaint against an- be liable to be used as evidence asjainst
other person, and was atterwards himself him, he could not object to it being so
indicted for that same offence, it was held used.]
that his testimony before the grand-jury s -^^^ „ Lewis, 6 C. & P. 161, per Gur
was admissible in evidence against him. ney, B. ; Eegina v. Wheeley, 8 C. & P.
The State v. Broughton, 7 Ired. 96. [* In 250 ; Eegina v. Owen, 9 C. &'p. 238.
a somewhat recent case. People ». Mc-
CHAP. XII.] OP CONFESSIONS. 259 •
he is generally aided and protected by the presence of the counsel
in the cause ; but in the latter case, being a prisoner, subjected
to an inqiiisitorial examination, and himself at least in danger
of an accusation, his mind is brought under the full influence of
those disturbing forces against which it is the policy of the law to
protect him.^
§ 227. As the statutes require that the magistrate shall reduce
to writing the whole examination, or so much thereof as shall
be material, the law conclusively presumes, that if any thing was
taken down in writing, the magistrate performed all his duty by
taking down all that was material.^ In such case, no parol evi-
dence of what the prisoner may have said on that occasion can
be received.^ But if it is shown that the examination was not
reduced to writing ; or if the written examination is wholly inad-
missible, by reason of irregularity ; parol evidence is admissible
to prove what he voluntarily disclosed.* And if it remains uncer-
tain whether it was reduced to writing by the magistrate or not,
it will be presumed that he did his duty, and oral evidence will
be rejected.^ A written examination, however, will not exclude
parol evidence of a confession previously and extrajudicially
made ; ^ nor of something incidentally said by the prisoner during
1 It has been thought, on the authority respecting the particular felony under ex-
of Britton's case, 1 M. & Rob. 297, that aminatlon, should be taken down, but not
the balance-sheet of a bankrupt, rendered that which relates to another matter. lb.
in his examination under the commission. And see Keg. v. Butler, 2 Car. & Itir. 221.
was not admissible in evidence against * Eex v. Fearshire, 1 Leach's Cr. Cas.
him on a subsequent criminal charge, be- 210 ; Rex v. Jacobs, Id. 347 ; Irwin's case,
cause it was rendered upon compulsion. 1 Hayw. 112; Eex v. Bell, 5 C. & P. 162;
But the ground of this decision was after- Eex v. Read, 1 M. & M. 403; Phillips v.
wards declared by the learned judge who Winburn, 4 C. & P. 273 ; [State v. Parish,
pronounced it, to be only this, that there Busbee, Law, 239.] If the magistrate
was no previous evidence of the issuing of returns, that the prisoner "declined to
the coramission ; and, therefore, no foun- say any thing," parol evidence of state-
dation liad been laid for introducing the ments made by him in the magistrate's
balance-sheet at all. See Wheater's case, presence, at the time of the examination,
2 Mood. Cr. Cas. 45, 51. is not admissible. Rex v. Walter, 7 C. &
2 Mr. Joy, in his Treatise on Confes- P. 267. See also Rex v. Rivers, Id. 177 ;
sions, &c., pp. 89-92, 237, dissents from this Regina v. Morse et al. 8 C. & P. 605 ;
propcjsition, so far as regards the conclusive Leach v. Simpson, 7 Dowl. 513. Upon
character of the presumption ; which, he the same principle, where, on a prelimi-
thinks, is neither " supported by the au- nary hearing of a case, the magistrate's
thorities,'' nor " reconcilable with the ob- clerk wrote down what a witness said, but
ject with which exaniiniitions are taken." the writing was not signed, and therefore
See «iy'/», § 224, note. But upon a careful was inadmissible; oral evidence was held
review of the authorities, and with defer- admissible to prove what the witness tes-
ence to the opinion of tliat learned writer, tified. Jeans v. Wheedon, 2 M. & Ilob.
I am constrained to leave the text unal- 484.
tered. See Infm, § 275-277. ^ Hinxman's case, 1 Leach's Or. Cas.
8 Rex 0. WeUer, 2 Car. & Kir. 223. 349, n.
Wliatever the prisoner vpluntarily said. ^ Rex v Carty, McNally's Evid. p. 4Si
260 LAW OP EVIDENCE. [PABT H.
his examination, but not taken down by tlie magistrate, provided
it formed no part of tlie judicial inquiry, so as to make it tlie duty
of tlie magistrate to take it down.^ So where the prisoner was
charged with several larcenies, and the magistrate took his con-
fession in regard to the property of A, but omitted to write down
what he confessed as to the goods of B, not remembering to have
heard any thing said respecting them, it was held that parol
evidence of the latter confession, being precise and distinct, was
properly admitted.^
§ 228. It has already been stated, that the signature of the
prisoner is not necessary to the admissibility of his examination,
though it is usually obtained. But where it has been requested
agreeably to the usage, and is absolutely refused by the prisoner,
the examination has been held inadmissible, on the ground that
it was to be considered as incomplete, and not a deliberate and
distinct confession.^ Yet where, in a similar case, the prisoner,
on being required to sign the document said, " it is all true
enough ; but he would rather decline signing it," the examination
was held complete, and was accordingly admitted.* And in the
former case, which, however, is not easily reconcilable with those
statutes, which require nothing more than the act of the magis-
trate, though the examination is excluded, yet parol evidence of
what the prisoner voluntarily said is admissible. For though, as
we have previously observed,^ in certain cases where the exami-
nation is rejected, parol evidence of what was said on the same
occasion is not received ; yet the reason is, that in those cases the
confession was not voluntary ; whereas, in the case now stated,
the confession is deemed voluntary, but the examination only is
incomplete.^ And wherever the examination is rejected as docu-
1 Moore's case, Roscoe's Grim. Eyid. the prisoner was on trial. But tlie case is
45, per Parke, J. ; Kex v. Spilsbury, 7 C. more fully stated, and the view of Mr.
& P. 188 ; Malony's case, Id. (otherwise Pliillips dissented from, in 2 Russell on
Mulvey's case, Joy on Confessions, &c. Crimes, pp. 876-878, note, by Mr. Greaves,
p. 238), per Littledale, J. In Rowland v. See also Joy on Confessions, pp. 89-93.
Ashbuy, Ry. & My. 221, Mr. Justice Best ' ^ Rex v. Telicote, 2 Stark. R. 483 ;
was of opinion, that " upon clear and satis- Bennett's case, 2 Leacli's Cr. Caa. 627, n. ;
factory evidence, it would be admissible to Rex v. Foster, 1 Lewiii's Cr. Cas. 46 ;
prove something said by a prisoner, be- Rex v. Hirst, lb.
yond what was taken down by the com- * Lambe's case, 2 Leach's Cr. Caa. 626.
mitting magistrate." 5 Supra, § 225.
2 Harris's case, 1 Mood. Cr. Cas. 338. ^ Thomas's case, 2 Leach's Cr. Cas.
See 2 Pliil. Evid. 84, note, where the 727; Dewhurst's case, 1 Lewiu'a Cr.
learned author has reviewed this case, Cas. 47 ; Rex v. Swatkins, 4 C. & P
and limited its application to confessions 548; Rex v. Read, 1 M. & M. 403.
of other oflences than the one for which
CHAP. XII.J OP CONFESSIONS. 261
meutary evidence, for informality, it may still be used as a writing,
to refresh the memory of the witness who wrote it, when testi-
fying to wliat the prisoner voluntarily confessed upon that occa-
sion. ^
§ 229. Though it is necessary to the admissibility of a confession
that it should have been voluntarily made, that is, that it should
have been made, as before shown, without the appliances of hope
or fear from persons having authority ; yet it is 7Uit necessary that
it should have been the prisoner's own spontaneous act. It will be
received, though it were induced by spiritual exhortatiotis, whether
of a clergyman',^ or of any other person ; ^ by a solemn promise of
secrecy, even confirmed by an oath ; * or by reason of the prisoner's
having been made drunken ; ^ or by a promise of some collateral
benefit or loon, no hope or favor being held out in respect to the
criminal charge against him;^ or by any deception practised on
the prisoner, or false representation made to him for that purpose,
provided there is no reason to suppose that the inducement held
out was calculated to prodivce any untrue confession, which is the
main point to bo considered.^ So, a confession is admissible,
thovigh it is elicited by questions, whether put to the prisoner by a
magistrate, officer, or private person ; and the form of the question
is immaterial to the admissibility, even though it assumes the
prisoner's guilt.* In all these cases the evidence may be laid
before the jury, however little it may weigh, under the circum-
1 Layer's case, 16 Howell's St. Tr. of the confession itself. lb. See further,
215; Rex v. Svv.atk;ins, 4 C. & V. 548, infra, § 247.
and note (a); liex v. Tarrant, 6 C. & V. ^ Rex v. Wild, 1 Mood. Cr. Cas. 452;
182 ; Rex v. Pressly, Id. 183 ; supra, § 90 ; Rex v. Court, 7 C. & P. 486 ; Joy on
infra, § 436. Confessions, &c., pp. 49) 51.
2 Rex V. Gilham, 1 Mood. Cr. Cas. * Rex v. Sliaw, 6 C. & R. 372 ; Com-
186 ; more fully reported in Joy on Con- monwealth v. Knapp, 9 Pick. 496, 500-
fessions, &e., pp. 52-56; Commonwealth D. 510. So, if it was overheard, whether
Drake, 15 Mass. 161. In the Roman law said to himself or to another. Rex v.
it is otherwise; penitential confessions to Simons, Id. 540. •
the priest being encouraged, for the relief ^ Rex v. Spilsbury, 7 C. & P. 187.
of the conscience, and the priest being ^ Rex v. Green, 6 C. & P. 655 ; Rex ».
bound to secrecy by the peril of punish- Lloyd, Id. 398. [ * State v. Weutworth,
ment. " Confessio coram sacerdote, in 37 N. H. 196.]
poenitentia facta, non probat in judicio ; ' Rex v. Derrington, 2 C. & P. 418 ;
quia caisetur facia coram Deo; imo, si Burley's case, 2 Stark. Evid. 12, n. See
sacerdos cam enunciat, incidit inpoenam." Commonwealth o. Tuckerinan, 10 Gray.
Mascardus, De Probat. vol. 1, Concl. 377. 173. ,
It was lawful, however, for the priest to * Rex r. Wild, 1 Mood. Cr. Cas. 452;
testily in such cases to the fact that the Rex v. Thornton, Id. 27 ; Gibney's case,
party had made, a penitential confession Jebb's Cr. Cas. 15 ; Kerr's case, 8 C. &
to him, as the Church requires, and that P. l79. See Joy on Confessions, pp. 34-40,
he had enjoined penance upon him ; and, 42-44 ; Arnold's case, 8 C. & P. 622 ;
with the express consent of the penitent, supra, § 225, note (1).
he might lawfully testify to the substance
262 LAW OF EVIDENCE. [PABT II.
stances, and however reprehensible may be the mode in which, in
some of them, it was obtained. All persons, except comisellors and
attorneys, are compellable at common law to reveal what they may
have heard ; and counsellors and attorneys are excepted, only
because it is absolutely necessary, for the sake of their clients, and
of remedial justice, that communications to them should be pro-
tected.'' Neither is it necessary to the admissibility of any confes-
sion, to whomsoever it may have been made, that it should appear
that the prisoner was warned that what he said would be used
against him. On the contrary, if the confession was voluntary, it
is sufficient, though it should appear that he was not so warned.^
[ * And it is no objection to the admissibility of confessions made
by those accused of crime, that they were made by them while
under arrest, whether to the officer or third persons, provided
there was no promise, threat, or other inducement resorted
to.3]
§ 230. It has been thought, that illegal imprisonment exerted such
influence upon the mind of the prisoner as to justify the inference
that his confessions, made during its continuance, were not volun-
tary ; and therefore they have been rejected.* But this doctrine
cannot yet be considered as satisfactorily established.^
§ i;31. The object of all the care, which, as we have now seen, ia
taken to exclude confessions which were not voluntary, is to
exclude testimony not probably true. But where, in consequence
of the information obtained from the prisoner, the property stolen, or
the instrument of the crime, or the bloody clothes of the person
murdered, or any other material fact is discovered, it is competent to
show that such discovery was made conformably to the information
given by the prisoner. The statement as to his knowledge of the
place where the property or other evidence was to be found, being
thus confirmed by the fact, is proved to be true, and not to have
been fabricated in consequence of any inducement. It is compe-
tent, therefore, to inquire, whether the prisoner stated that the
thing would be found by searching a particular place, and to prove
1 Per Patteson, J., in Eex v. Shaw, 6 s [* People v. Rogers, 18 N. Y. Ct.
C. & P. 872. Physicians and clergymen, App. 9.]
by statutes. [Infra, §§ 247, 248, and * Per Holroyd, J., in Ackroyd and
notes.] . Wai-burton's case, 1 Lewin's Cr. Cas. 49.
2 Gihney's case, Jebb's Cr. Cas. 15 ; 5 Rex v. Thornton, 1 Mood. Cr. Cas.
Rex V. iVIagill, cited in ItfcNally's Evid. 27.
38 ; Regina v. Arnold, 8 C. & P. 622 ; Joy
on Confessions, pp. 45-48.
CHAP. XII.] OF CONFESSIONS. 263
that it was accordingly so found ; but it would not be competent to
inquire, whether he confessed that he had concealed it there.^
This limitation of the rule was distinctly laid down by Lord Eldon,
who said, that where the knowledge of any fact was obtained from
a prisoner, under such a promise as excluded the confession itself
from being given in evidence, he should direct an acquittal ; unless
the fact itself proved would have been sufficient to warrant a
conviction, without any confession leading to it.^
§ 232. If the prisoner himself produces the goods stolen, and
delivers them up to the prosecutor, notwithstanding it may appear
tliat this was done upon inducements to confess, held out by the
latter, there seems no reason to reject the declarations of the
"prisoner, contemporaneous with the act of delivery, and explana-
tory of its character and design, though they may amount to a
confession of guilt ; ^ but whatever he may have said at the same
time, not qualifying or explaining the act of delivery, is to be
rejected. And if, in consequence of the confession of the prisoner,
thus improperly induced, and of the information by him given, the
search for the property or person in question, proves wholly ineffec-
tual, no proof of either will be received. The confession is
excluded, because, being made under the influence of a promise,
it cannot be relied upon; and the acts and information of the
prisoner, under the same influence, not being confirmed by the
finding of the property or person, are open to the same objection.
The influence which may produce a groundless confession may also
produce groundless conduct.*
§ 233. As to the prisoner's liability to be aflected by the con-
fessions of others, it may be remarked, in general, that the
principle of the law in civil and criminal cases, is the same. In
civil cases, as we have already seen,^ when once the fact of agency
or partnership is established, every act and declaration of one, in
furtherance of the common business, and until its completion, is
deemed the act of all. And so, in cases of conspiracy, riot, or
other crime, perpetrated by several persons, when once the con-
spiracy or combination is established, the act or declaration of one
1 1 Phil. Evid. 411 ; "Wariclcshall'e case, 658 ; Lockhart's case, 1 Leach's Cr. Cas.
1 Loach's Cr. Cas. 298 ; Mosey's case, Id. 430.
801, n. ; Commonwealth v. Knapp, 9 Pick. ' Kex v. Griffin, Russ. & By. 151 ; Eex
496, 511 ; Regina v. Gould, 9 C. & P. 364; v. Jones, Id. 152.
Eex V. Harris, 1 Mood. Cr. Cas. 338. * Rex o. Jenkins, Russ. & Ry. 492;
2 2 East, P. C. 657 ; Harvey's case, Id. Regina v. Hearn, 1 Car. & Marsh. 109.
6 Supra, §§ 112, 113, 114, 174, 176, 177.
264 LAW OF EVIDENCE. [PAET II.
conspirator, or accomplice, in the prosecution of the enterprise, is
considered the act of all, and is evidence against all.^ Each is
deemed to assent to, or command what is done by any other, in
furtherance of the common object.^ Thus, in an indictment
against the owner of a ship, for violation of the statutes against
the slave-trade, testimony of the declarations of the master, being
part of the res gestm, connected with acts in furtherance of the
voyage, and within the scope of his authority, as an agent of
the owner, in the conduct of the guilty enterprise, is admissible
against the owner.^ But after the common enterprise is at an end,
whether by accomplishment or abandonment, is not material, no
one is permitted, by any subsequent act or declaration of his
own, to affect the others. His confession, therefore, subsequently
made, even though by the plea of guilty, is not admissible in evi-
dence, as such, against any but himself.* If it were made in thb
presence of another, and addressed to him, it might, in certain
circumstances, be receivable, on the ground of assent, or implied
admission. In fine, the declarations of a conspirator or accomplice
are receivable against his fellows, only when they are either in
themselves acts, or accompany and explain acts, for which the
others are responsible ; but not when they are in the nature of
narratives, descriptions, or subsequent confessions.^
§ 284. The same principle prevails in cases of agency. In
general, no person is answerable criminally for the acts of his
servants or agents, whether he be the prosecutor or the accused,
unless a criminal design is brought home to him. The act of the
1 So is the Roman Law. " Confessio " Eex v. Turner, 1 Mood. Cr. Gas.
vinius non probat in prsejudicium alterius ; 347 ; Eex v. Appleby, 3 Stark. R. 33.
quia alias esset in raanu confitentis dicere And see Melon v. Andrews, 1 M. & M.
quod vellet, et sic jus alteri quassitum 336, per Parke, J.; Regina';;. Hinks, 1
auferre, quando omnino jure proliibent; Den. Cr. Cas. 84; 1 Pliil. Evid. 199 (9th
— etiamsi talis confitens esset omni ex- edit.); Eegina D.Blake, 6 Ad. & El. 126,
ceptione major. Sed limitabis, qiiando n. s.
inter partes convenit parere confessioni et ^ 1 Phil, on Evid. 414 ■ 4 Hawk. P. C.
dicto unius alterius." Mascard. i)e Probat. b. 2, eh. 46, § 34; Tong's case Sir j'
Concl. 486, vol. 1, p. 409. Kelyng's E. 18, 5th Res. In a case of
2 Per Story, J., m United States v. piracy, where the persons who made the
2 Peters, 358 ; Commonwealth v. Eberle could not he applied to any one of the
a al, 8 S. & E. 9 ; Wilbur v. Strickland, prisoners, as proof of his personal guilt
1 Eawle, 458 ; Reitenback v. Reitenback, yet the jury might consider them so fa*
Id. 362 ; 2 Stark. Evid. 232-237 ; The as they went to identify the piratical ves-
State V. Soper, 4 Shepl. 293. sel. United States v. Gihert, 2 Sumu 16
3 United States v. Gooding^ 12 Wlieat. [* State v. Thibeau, 30 Vt. R. 100 1
460.
CHAP. XII.] OP CONFESSIONS. 265
agent or servant may be shown in evidence, as proof that such an
act was so done ; for a fact must be established by the same evi-
dence, whether it is to be followed by a criminal or civil conse-
quence ; but it is a totally different question, in the consideration of
criminal, as distinguished from civil justice, how the principal may
be affected by the fact, when so established.^ Where it was pro-
posed to show that an agent of the prosecutor, not called as a wit-
ness, offered a bribe to a witness, who also was not called, the
evidence was held inadmissible ; though the general doctrine, as
above stated, was recognized.^
§ 235. It was formerly doubted whether the confession of the
prisoner, indicted for high treason, could be received in evidence,
imless it were made upon his arraignment, in open court, and in
answer to the indictment ; the statutes on this subject requiring
the testimony of two witnesses to some overt act of treason.^ But
it was afterwards settled, and it is now agreed, that though, by
those statutes, no confession could operate conclusively, and with-
out other proof, to convict the party of treason, unless it were
judicially made in open court upon the arraignment ; yet that, in
all cases, the confession of a criminal might be given in evidence
against him ; and that in cases of treason, if such confession be
proved by two witnesses, it is proper evidence to be left to a jury.*
And in regard to collateral facts, which do not conduce to the
proof of any overt acts of treason, they may be proved as at com-
mon law, by any evidence competent in other criminal cases.''
1 Ld. Melville's case, 29 Howell's St. publication." Hex v. Gutch, 1 M. & M.
Tr. 764 ; The Queen's case, 2 B. & B. 433, 437. See also Story on Agency,
.S08, 307 ; supra, § 170. §§ 452, 453, 455 ; Kex v. Almon, 5 Burr.
2 Tlie Queen's case, 2 B. & B. 302, 2686 ; Rex v. Walter, 3 Esp. 21 ; Soutli-
306,307,308,309. To the rule, thus gene- wick v. Stephens, 10 .Jolms. 443.
rally laid down, there is an apparent ex- * Foster's Disc. 1, § 8, pp. 2^2-244 ; 1
ception, in tlie case of the proprietor of a East's P. C. 131, 132, 133. Under the
newspaper, who is, prima facie, criminally Slat. 1 Ed. VI. c. 12, and 5 Ed. VI. c. 11,
responsible for any libel it contains, tliough requiring two witnesses to convict of trea-
inserted by bis agent or servant without son, it lias been held sufficient, if one wit
his knowlediie. But Lord Tenterden con- ness prove one overt act, and anotliar
sidered this case as falling strictly within prove anotlier, if both acts conduLu to tlie
the principle of the rule ; for " surely," perpetration of the same si)ecies of treason
said he, "a person who derives profit charged upon the prisoner. Lord Staf-
from, and who furnislies means for carry- ford's case, T. Kayni. 407 ; 3 St. Ti'. 204,
ing on the concern, and intrusts tlie con- 205; 1 East's P. C. 129; 1 Burrs Trial,
duct of the publication to one whom he 196.
selects, and in whom he confides, may be * Erancia's case, 1 East's P. C. 133,
said to cause to be published what actu- 134, 135. '
ally appears, and ought to be answerable, ^ Smith's case. Post. Disc. p. 2')2; j
though you cannot show that lie was in- East's P. C. 130. See infra, §§ 254, 255.
dividually concerned in the particular
VOL. 1 23
266 LAW OP EVIDENCE. [PAET II.
CHAPTEE Xni.
OP EVIDENCE EXCLUDED FEOM PUBLIC POLICY,
[*§ 236. Evidence sometimes rejected upon grounds of policy.
237. This embraces communications between attorney or counsel and client,
238. This is done out of regard to the rights of clients and the course of justi;e.
239. The privilege extends to all grades in the profession, their agents, interpre-
ters, and personal representatives.
239a. Summary of the recent American cases.
240. It embraces aU legal proceedings, in esse, or in contemplation.
240a. Communications after dispute privileged, but not those in matters wholly
distinct and anterior.
241. Other incidents of the privilege. Counsel may prove the existence, but not
contents, of deeds.
242. The privilege only attaches to fects obtained solely through professional
confidence.
243. The obligation of secrecy is perpetual.
244-245. Instances where counsel may testify to facts learned in the coiu-se of
professional employment and otherwise.
246. The court will inspect documents to determine whether they shall be pro-
duced. Sed qucere.
247. Christian ministers not privileged to withhold confidences.
248. Nor is a physician, or agent, or steward so privileged.
249. Judges, jurors, and arbitrators not bound to disclose the ground of their
judgments.
250. State secrets, and of the detective poUce, are privileged.
251. This will embrace communications to the President, Governors, and other
high officers of state.
252. Grand jurors and other officers required to keep proceedings secret.
252a. Petit jurors not allowed to disclose what passes injury-room.
253. Facts offensive to pubhc decency not allowed to be proved, except from
strict necessity.
254. Confidential communications between husband and wife held inviolable.
254a. Papers illegally obtained sometimes allowed to be used in evidence.]
§ 236. There are some kinds of evidence wliicli the law ex-
cludes, or dispenses with, on grounds of public policy ; because
greater miscliiefs would properly result from requiring or per-
mitting its admission, than from wholly rejecting it. The prin-
ciple of tliis rule of the law has respect, in some cases, to the
person testifying, and in others, to the matters concerning which
he is interrogated ; thus including the case of the party himself,
CHAP. XIII.j EVIDENCE EXCLUDED FEOM PUBLIC POLICY. 267
and that of the husband or wife of the paity, on the one hand, and
on the other, the subject oiprofessional communications, awards,
sec7-ets of state, and some others. The two former of these belong
more properly to the head of the Competency of witnesses, under
which they will accordingly be hereafter treated.^ The latter we
shall now proceed briefly to consider.
§ 237. And iu the first place, in regard to professional commu-
nications, the reason of public policy, which excludes them, applies
solely, as we shall presently show, to those between a client and
his legal adviser; and the rule is clear and well settled, that
the confidential counsellor, solicitor, or attorney, of the party, cannot
be compelled to disclose papers delivered, or communications
made to him, or letters or entries made by him, in that capacity .^
" This protection," said Lord Chancellor Brougham, " is not quali
fied by any reference to proceedings pending, or in contemplation.
If, touching matters that come within the ordinary scope of profes-
sional employment, they receive a communication in their pro-
fessional capacity, either from a client, or on his account and for
his benefit, in the transaction of his business, or, which amounts
to the same thing, if they commit to paper in the course of their
employment on his behalf, matters wliich they know only through
their professional relation to the client, they are not only justified
in witliholding such matters, but bound to withhold them, and will
not be compelled to disclose the information, or produce the papers,
in any court of law or equity, eitlier as party or as witness." ^
§ 238. " The -foundation of this rule," he adds, " is not on
account of any particular importance which the law attributes
1 [/h/"™,] § 326-429. Abr. Evid. B, a; Wilson v. Rastall, 4 T.
' III Greenough v. Gaskell, 1 My. & K. R. 753 ; Rex v. Witliers, 2 Canipb. 578 ;
101. In this decision, tlie Lord Cl\ancel- Wilson v. Troup, 7 Johns. Ch. 25; 2
lor was assisted by consultation with Lord Cowen, 195 ; Mills v. Oddy, 6 C. & P.
Lyndhurst, Tindal, C. . I., and Parke, J., 728; Anon. 8 Mass. 370; Walker v.
4 B. & Ad. 870. And it is mentioned, as Wildman, 6 Madd. R. 47 ; Story's Eq.
one in wliieli all the authoi'ities have been PI. 458-401 ; Jackson v. Burtis, 14 Johns,
reviewed, in 2 M. & W. 100, per Lord 391 ; Foster v. Hall, 12 Pick. 89 ; Chirac
Abinger, and is cited in Russell v. Jack- v. Reinicker, 11 Wheat. 295 ; Re.x v.
son, 15 Jur. 1117, as settling the law on Shaw, 0 C. & P. 372; Granger v. AVar-
this subject. See also, 16 Jur. 30, 41-43, rington, 3 Gilm. 299 ; Wheeler v. Hill, 4
where the cases on this subject are re- Sliepl. 329.
viewed. The earliest reported case on ^ Greenough «. Gaskell, 1 My. & K.
this subject is that of Herd ;•. Lovelace, 102, 103. Tlie privilege is held to e.Ntend
19 Eliz., in chancery, Gary's R. 88. See to every comnmnication made by a client
also Austen c. Vescy, Id. 89 ; Kelway v. to his attorney, though made under a
Kelway, Id. 127 ; Dennis v. Codrington, mistaken belief of its being necessary to
Id. 14o ; all which are stated at large by his case. Cleave v. Jones, 8 Eng. Law &
Mr. Mstc/ilf, in his notes to 2 Stark. Evid. Eq. R. 554, per Martin, B. And see Aikin
895 (1st Am. edit.). See also 12 Vin. v. ICilburne, 14 Slxepl. 252
268
LAW OP EVIDENCE.
[part U.
to the business of legal professors, or any particular disposition to
afford them protection. But it is out of regard to the interests
of justice, which cannot be upholden, and to the administra-
tion of justice, wliich cannot go on, without the aid of men skilled
in jurisprudence, in the practice of the courts, and in those matters
affecting riglits and obligations, which form the subject of all
judicial proceedings." ^ If sucli communications were not pro-
tected, no maAi, as the same learned judge remarked in another
case, would dare to consult a professional adviser, with a view to
his defence, or to the enforcement of his rights; and no man
could safely come into a court, either to obtain redress, or to
defend himself. ^
§ 239. In regard to the persons, to whom the communications
must have been made, in order to be thus protected, they must
have been made to the counsel, attornei/, or solicitor, acting, for
the time being, in the character of legal adviser.^ For the reason
1 [" It is to be remembered whenever
a question of this Icind arises, that com-
munications to attorneys and counsel are
not protected from disclosure in court for
the reason that they are made confiden-
tially ; for no such protection is given
to confidential communications made to
members of other professions. ' The prin-
ciple of the rule, wliich applies to attor-
neys and counsel,' says Cliief Justice
Shaw, in Hatton v. Robinson, 14 Pick.
4Li2, 'is, that so numerous and complex
are the laws by which the rights and du-
ties of citizens are governed, so important
is it they should be permitted to avail
themselves of the superior skill and lef^n-
ing of those who are sanctioned by the
law as its ministers and expounders, both
in ascertainhig their rights in the country,
and maintaining them most safely in
courts, witliout pubhshing those facts
whicli they have a right to keep secret,
but wliich must be disclosed to a legal
adviser and ailvocate to enable liim suc-
cessfully to perforin the duties of his office,
that the law has considered it the wisest
policy to encourage and sustain tliis confi-
dence, by requiring that on such facts the
mouth of the atlorney shall be for ever
sealed.' " l!y Metcalf, J., in Barnes c/.
Harris, 7 Cush. 576, 578.]
^ r.rjjtou I). The Corporation of Liver-
pool, 1 My. & K. 04, ija. "This rule
seeins to lie correhitive with that which
governs tlie suniinary jurisdiction of the
courts liver attorneys. In J£x jiarte Aiken
(4 13. & Aid. 4y ; see also Ex parte Yeat-
mau, 4 Dowl. P. C. 309), that rule is laid
down thus : -^ ' Where an attorney is em-
ployed in a matter, wholly unconnected
with his professional ciiaracter, the court
will not interfere in a summary way to
compel him to execute faithfully the trust
reposed in him. But where the employ-
ment is so connected with his professional
character as to afford a presumption that
his character formed the ground of his
employment by the client, there the court
will exercise this jurisdiction.' So, where
the communication made relates to a cir-
cumstance so connected with the employ-
ment as an attorney, that the character
formed the ground of the communication,
it is privileged from disclosure." Per Al-
derson, J., in Tirquand v. Knight, 2 M. &
W. 101. The iloman Law rejected the
evidence of tlie procurator and the advo-
cate, in nearly the same cases in wliich
the common law holds them incompe-
tent to testify ; but not for the same rea-
sons; tlie latter regarding the general
interest of the community, as stated in
the text, while the former seems to con-
sider tliem as not credible, because of tha
identity of their interest, opinions, and
prejudices, with those of their clients.
Mascard. de Probat, vol. 1, Concl. 06, vol.
3, Concl. 1239 ; P. Farinacii Opera, torn.
2, tit. 6, Quajst. 60, Illat. 5, 6.
* If the party lias been requested to
act as solicitor, and the communication is
made under the impression that the re-
quest has been acceded to, it is privileged.
Smith 0. Tell, 2 Curt. 607; [Sargent v.
CHAP. XIII.] EVIDENCE EXCLUDED FEOM PUBLIC POLICY. 269
of the rule, having respect solely to the free and unembarrassed
administration of justice, and to security in the enjoyment of civil
rights, does not extend to things confidentially communicated to
other persons, nor even to those which come to the knowledge of
counsel, when not standing in that relation to the party. Whether
he be called as a witness, or be made defendant, and a discovery
sought from him, as such, by bill in chancery, whatever he has
learned, as counsel, solicitor, or attorney, he is not obliged nor
permitted to disclose.^ And this protection extends also to all
the necessary organs of communication between the attorney and
his client; an interpreter^ and an agent^ being considered as
standing in precisely the same situation as the attorney himself,
and under the same obligation of secrecy. It extends also to
a case submitted to counsel in a foreign country, and his opinion
thereon.* It was formerly thought that an attorney'^ or a barris-
ter's clerk was not within the reason and exigency of the rule ;
but it is now considered otherwise, from the necessity they are
under to employ clerks, being unable to transact all their business
in person ; and accordingly clerks are not compellable to disclose
facts, coming to their knowledge in the course of tlieir employment
in that capacity, to which the attorney or barrister himself could
not be interrogated.^ And as the privilege is not personal to the
attorney, but is a rule of law, for the protection of the client,
the executor of the attorney seems to be within the rule, in regard
to papers coming to his hands, as the personal representative of
the attorney.®
Hamprlen, 38 Maine, 581 ; McLeUan v. Best, J., cited and approved in 12 Pick.
Longfellow, 32 lb. 494.] See, as to con- 93 ; Rex v. Upper Boddington, 8 Dow. &
sultation by the party's wife, Eeg. v. Far- Ey. 726, per Bayley, J. ; Foote v. Hayne,
ley, 2 Car. & liir. 313. One who is merely 1 C. & P. 545, per Abbott, C. J. ; R. & M.
a real estate broker, agent, and conveyan- 165, s. c. ; Jackson v. French, 8 Wend,
cer, is not a legal adviser. Matthews's 837 ; Power v. Kent, 1 Cowen, 211 ; Bow-
Estate, 4 Amer. Law J. 356, n. s. man v. Norton, 5 C. & P. 177; Shore v.
1 Greenough v. Gaskell, 1 My. & K. Bedford, 5 M. & Gr. 271 ; Jardine v. Sher-
95; Wilson v. Rastall, 4 T. R. 753. idan, 2 C. & K. 24; [* Sibley o. Waffle,
'^ Du Barre v. Livette, Peake's Cas. 77, 16 N. Y. Ct. App. ISO ; Landsberger v.
explained in 4 T. R. 756 ; Jackson v. Gorham, 5 Gal. 450.] [Communications
French, 8 Wend. 387 ; Andrews v. Solo- made while seeking legal advice in a con-
mon, 1 Pet. C. C. R. 356 ; Parker v. Car- sultation with a student at law in an attor-
ter, 4 Munf. 278. ney's office, he not being the agent or
^ Perkins v. Hawkshaw, 2 Stark. R. clerk of the attorney for any purpose, are
239 ; Tait on Evid. 385 ; Bunbury v. Bun- not protected. Barnes v. Harris, 7 Gush.
bury, 2 Beav. 173 ; Steele v. Stewart, 1 576, 578. See also Holman v. lamball, 22
Fhil. Gil. R. 471 ; Carpmael v. Powis, 1 Verm. 555.
Phil. Ch. R. 687 ; 9 Beav. 16, s. c. « Fenwick v. Reed, 1 Meriv. 114, 120,
* Bunbury v. Bunbury, 2 Beav. 173. arg.
" Taylnr v. Foster, 2 C. & P. 195, per
28*
270 LAW OP EVIDENCE. [PAET U.
[*§ 239«. The decisions upon this point are very numerous
in the American States. It seems indispensable to the existence
of the privilege, that the relation of counsel or attorney and client
should exist, and that the communication be made in faith of the
relation. And then the privilege of secrecy only extends to the
parties to the relation and their necessary agents and assistants.
Hence the privilege does not attach, if one is accidentally present ; ^
or casually overhears the conversation ; ^ or if the person be not
a member of the profession, although supposed to be so by the
client ; 3 or if he was acting as a mere scrivener although of the
legal profession.* And the privilege against disclosure extends to
the client, as much, and to the same extent, as to his professional
adviser .s Hence counsel may be compelled to produce any paper
which the client might be required to do.^ And facts coming to
the knowledge of counsel, without communication from their
clients, by being present merely, when a legal document is exe-
cuted,^ are not privileged. So also, that the testator was too
imbecile to make communications to counsel, when they met, is
not a privileged fact.^ So communications made by the trustee
to counsel, in regard to the trust, are not privileged from being
proved by the counsel, in a suit between the cestui que trust and
the trustee affecting the trust,^ or when made by a nominal party,
to a professional person, but not made professionally .i" But it is
not indispensable the communication should be made after the
actual retainer, provided it be made in confidence of the pro-
fessional character, and with a bond fide purpose of obtaining
professional aid and direction.^! But a communication made to
counsel by two defendants is not privileged from disclosure in
a subsequent suit between the two.^^ Counsel are not privileged
from disclosing facts tending to establish a fraudulent combination
between himself and his client, in order to prevent the court from
compelling the production of important papers,^^ since neither
counsel or client have any legal right to resort to any bvit legal
means for obtaining a decision in their favor. And it is upon
1 [* Goddard v. Gardner, 28 Conn. 172. ' Patten v. Moor, 9 Foster, 163.
2 Hoy V. Morris, 13 Gray, 519. » Daniel v. Daniel, 39 Peiin. St. 191.
8 Sample v. Frost, 10 Iowa, 266. o Sliean «. Pliilips, 1 F. & F. 449.
< De Wolf V. Strader, 26 111. 225 ; Bo- i» Allen v. Harrison, 30 Vt. 219 ; Marsh
rum V. Fouts, 15 Lid. 60 ; Coon v. Swan, v. Howe, 36 Barb. 649.
80 Vt. 6. 11 Sargent v. Hampden, 38 Me. 581.
6 Hemenway v. Smith, 28 Vt. 701. 12 Rice v. Kice, 14 B. Mon. 417.
« Andrews v. Ohio and Miss. R. R. Co., m People v. Sheriff of New York. 29
U Iiid. 109 ; Durkee v. Leland, 4 Vt. 612. Barb. 622.
CHAP. XIII. J EVIDENCE EXCLUDED PllOM PUBLIC POLICY. 271
the same ground that counsel have been held not privileged from
disclosing the fact of a payment made to the client, and commu-
nicated by him to the attorney, for the purpose of having the
application made, the client having deceased, since this is not in
any sense a professional confidence.^]
§ 240. This protection extends to every communication which
the client makes to his legal adviser, for the purpose ofprofessional
advice or aid, upon the subject of his rights and liabilities.^ Nor
is it necessary that any judicial proceedings in particular should
have been commenced or contemplated ; it is enough if the matter
in hand, like every other human transaction, may, by possibility,
become the subject of judicial inquiry. " If," said Lord Chan-
cellor Brougham, " the privilege were confined to communications
connected with suits begun, or intended, or expected, or appre-
hended, no one could safely adopt such precautiops, as might
eventually render any proceedings successful, or all roceedings
superfluous." ^ Whether the party himself can be compelled, by
a bill in chancery, to produce a case which he has laid before
counsel, with the opinion given thereon, is not perfectly clear.
At one time it was held by the House of Lords, that he might be
compelled to produce the case which he had sent, but not the
opinion which he had received.* This decision, however, was not
satisfactory ; and though it was silently followed in one case,^ and
reluctantly submitted to in another,'' yet its principle has since
been ably controverted and refuted.'' The great object of the
1 [* Clark V. Kichards, 3 E. D. Smith, this subject are fully, reviewed by the
89.] learned Chief Justice ; Doe v. Harris, 5
'•* This general rule is limited to com- C. & V. 592 ; Walker v- Wiltlman, 6 Madd.
munications having a lawful ohjeot ; for if E. 47. There are some decisions which
the purpose contemplated be a violation require that a suit be eitlier pending or an-
of law, it has been deemed not to be with- ticipated. See Williams v. Mundie, liy. &
in tlie rule of privileged communica- M. 34 ; Broad f. Pitt, 3 C. & P. 518 ; l)uf-
tions ; because it is not a solicitor's duty fin v. Smith, Peake's Cas. 108. But these
to contrive fraud, or to advise ills client as are now overruled. See Pearse v. Pearse,
to tlie means of evading the law. Russell 11 .Jur. 52 ; 1 De Gex & Sniale, 12 s. c.
V. Jackson, 15 Jur. 1117; Bank of Utica y. The law of Scotland is the same in this
Mersoieau, 3 Barb. Ch. R. 528. matter as that of England. Tait on Fvid.
3 1 M. & IC. 102, 103 ; Carpmael v. 384.
Powi-s, U Beav. 16; 1 Phillips, 687; Pen- * Radcliffe f. Eursman, 2 Bro. P. C. 514.
ruddock v. Hammond, 11 Bcav. 59. See '' Preston v. Carr, 1 Y. & Jer. 175.
also the observations of the learned judges, " Newton v. Beresford, 1 You. 376.
in Croniack v. Heathcote, 2 Brod. & B. 4, ' In Bolton v. Corp. of Liverpool, 1 My.
to tlie same effect ; Gresley's Evid. 32, 33 ; & K. 88, per Ld. Chancellor Brougham ;
Story's Eq. PI. §600; Moore v. Terrell, and in Pearse v. Pearse, 11 Jm-. 52, by
4 B. & Ad. 870 ; Beltzhoover v. Black- Kniglit Bruce, V. C. In the following
stock, 3 Watts, 20 ; Taylor v. Blacklow, 3 observations of this learned judge, we have
Bing. N. c. 235 ; Foster u. Hall, 12 Pick, the view at present taken of this ve.xed
89, 92, 99, where the English decisions on question in England. " That cases laid
272
LAW OF EVIDBNCE.
[PABT n.
rule seems plainly to require tliat the entire professional inter-
course between client and attorney, whatever it may have con-
sisted in, should be protected by profound secrecy.^
before counsel, on behalf of a client, stand
upon the same footing as other profession-
al communications from the client to the
counsel and solicitor, or to either of them,
may, I suppose, be assumed ; and that, as
far as any discovery by the solicitor or
counsel is concerned, the question of the
existence or non-existence of any suit,
claim, or dispute, is immaterial — the law'
proTiding for the client's protection in
each state of circumstances, and in each
equally, is, I suppose, not a disputable
point. I suppose Cromack v. Heathcote,
(2 Brod. & Bing. 4,) to be now univer-
sally acceded to, and the doctrine of tliis
court to have been correctly stated by
Lord Lyndhurst, in Herring i'. Clobery
(1 Phil. 91), when he said, 'I lay down
this rule with reference to this cause, that,
where an attorney is employed by a client
professionally to transact professional busi-
ness, all the communications that pass be-
tween the client and the attorney, in the
course and for the purpose of that busi-
ness, are privileged communications, and
that the privilege is the privilege of the
client, and not of the attorney.' This I
take to be not a pecuUar, but a general
rule of jurisprudence. The civil law, in-
deed, considered the advocate and client
so identified or bound together, that the
advocate was, I beheve, generally not al-
lowed to be a witness for the client. . ' Ne
patroni in causa, cut patrocinium prcestiterunt,
testimonium dicant,' says the Digest (Dig.
lib. 22, tit. 5, 1. 25). An old jurist, indeed,
appears to have thought, that, by putting
an advocate to the torture, he might have
made a good witness for his client ; but
this seems not to have met with general
approbation. Professors of the law, prob-
ably, were not disposed to encourage the
dogma practically. Voet puts the com-
munications between a client and an ad-
vocate on the footing of those between a
penitent and his priest. He says : ' Non
etiam advocatus aut procurator in ed causa,
cui patrocinium prmstitit aut procurationem,
idoneus testis est, Slue pro cliente sive contra
eum producatur ; saltern non ad id, ut pandere
cogeretur ea, quae non aliunde quam ex revela-
tione clientis, coinperta hahet; eo modo, quo,
et sacerdoti revelare ea quce ex auriculari didi-
eit coiifessione, nefcis est.' Now, whether
laying or not laying stress on the observa-
tions made by the late Lord Chief Baron,
in Knight v. Lord Waterford (2 Y. & C
40, 41), — observations, I need not say,
well worthy of attention, — I confess my-
self at a loss to perceive any substantial
difference, in point of reason, or principle,
or convenience, between the liability of
the client and that of his counsel or soli-
citor, to disclose the client's communica-
tions made in confidence professionally
to either. True, the client is or may be
compellable to disclose all, tjiat, before he
consulted the counsel or sohcitor, he
knew, believed, or had seen or heard
but the question is not, I apprehend, one
as to the greater or less probabiUty of
more or less damage. The question is, I
suppose, one of principle, — one that ought
to be decided according to certain rules
of jurisprudence ; nor is the exemption of
the solicitor or counsel from compulsory
discovery confined to advice given, or
opinions stated. It extends to fiicts com-
municated by the cUent. Lord Eldon has
said (19 Ves. 267): 'The case might
easily be put, that a most honest man, so
changing his situation, might communicate
a fact, appearing to him to have no con-
nection with the case, and yet the whole
title of his former client might depend on
it. Though Sir John Strange's opinion
was, that an attorney might, if he pleased,
give evidence of his client's secrets, I
take it to be clear, that no court would
permit him to give such evidence, or
would have any difficulty, if a sohcitor,
voluntarily changing his situation, was, in
Ms new character, proceeding to commu-
nicate a material tiict. A short way of
preventing him would bo, by striking him
off the roll.' But as to damage : a man,
having laid a case before counsel, may die,
leaving all the rest of mankind ignorant
of a blot on his title stated in the case,
and not discoverable by any other means.
The whole fortunes of his family may
turn on the question, whether the case
shall be discovered, and may be subverted
by its discovery. Again, the client is
certainly exempted from liability to dis-
cover communications between himself
and his counsel or solicitor after litigation
commenced, or after the commencement
of a dispute ending in litigation ; at least,
if they relate to the dispute, or matter in
1 Thus, what the attorney saw, namely, the destruction of an instrument, was held
privileged. Eobson v. Kemp, 5 Esp. 62.
CHAP. XIII.] EVIDENCE EXCLUDED FROM PUBLIC POLICY.
273
§ 240a. In regard to the obligation of the party to discover and
produce tlie opinion of counsel, various distinctions have been
attempted to be set up, in favor of a discovery of communications
dispute. Upon this I need scarcely refer
to a class of authorities, to which Hughes
V. Biddulph {4 Russ. 160), Nias v. North-
ern and Eastern Railway Company (3
Myl. & Cr. 355), before the present Lord
Chancellor, in his former chancellorship,
and Holmes v. Baddeley (1 Phil. 476),
decided by Lord Lyndhurst, belong. But
what, for the purpose of discovery, is the
distinction in point of reason, or principle,
or justice, or convenience, between such
communications and those which differ
from them only in this, that they precede,
instead of following, the actual arising, not
of a cause for dispute, but of a dispute, I
have never hitherto been able to perceive.
A man is in possession of an estate as
owner ; he is not under any fiduciary ohli-
gation; he finds a flaw, or a supposed
flaw, in his title, which it is not, in point
of law or equity, his duty to disclose to
any person ; he believes that the flaw or
supposed defect is not known to the only
person, wlio, if it is a defect, is entitled to
take advantage of it, but that this person
may probably or possibly soon hear of it,
and then institute a suit, or make a claim.
Under this apprehension he consults a so-
licitor, and, through the solicitor, lays a
case before counsel on the subject, and
receives his opinion. Some time after-
wards the apprehended adversary becomes
an actual adversary, for, coming to the
knowledge of the defect or supposed flaw
in the title, he makes a claim, and, after a
preliminary correspondence, commences a
suit in equity to enforce it ; but between the
commencement of the correspondence and
the actual institution of the suit, the man
in possession again consults a solicitor,
and through him again lays a case before
counsel. According to the respondent's
argument before me on this occasion, the
defendant, in tlie instance that I have sup-
posed, is as clearly bound to disclose- the
first consultation and the first case, as he
is clearly e'xempted from discovering the
second consultation and the second case.
I have, I repeat, yet to learn that such a
distinction has any foundation in reason
or convenience. The discovery and vin-
dication and establishment of truth, are
main purposes, certainly, of the existence
of courts of justice; still, for the obtaining
of these objects, which, however valuable
and important, cannot be usefully pursued
without moderation, cannot be either use-
fully or creditably pursued unfairly, or
gained by unfair means — not every chan-
nel is or ought to be open to them. The
practical ineflicacy of torture is not, I sup-
pose, the most weighty objection to that
mode of examination, nor probably would
the purpose of the inere disclosure of
truth have been otherwise than advanced
by a refusal, on the part of the Lord Chan-
cellor in 1815, to act against the soUcitor,
who, in the cause between Lord Cholmon-
deley and Lord Clinton, had acted or pro-
posed to act in the manner which Lord
Eldon thought it right to prohibit. Truth,
like all other good things, may be loved
unwisely — may be pursued too keenly —
may cost too much. And surely the
meanness and the mischief of prying into
a man's confidential consultations with hia
legal adviser, the general evil of infusing
reserve and dissimulation, uneasiness and
suspicion and fear, into those communicar
tions which must take place, and which,
unless in a condition of perfect security,
must take place uselessly or worse, are
too great a price to pay for truth itself."
See 11 Jur. pp. 54,* 55; 1 De Gex &
Smale, 25-29. See also Gresley on Evid
32, 33 ; Bp. of Meath v. Marq. of Win
Chester, 10 Bing. 330, 375, 454, 455 ; Nias
V. The Northern, &c.. Railway Co. 3 My.
& C. 355, 357; Bunbury v. Bunbury, 2
Beav. 173; Herring v. Clobery, 1 Turn. &
Phil. 91; Jones v. Pugh, Id. 96; Law
Mag. (London), vol. 17, pp. 51-74; and
vol. 30, pp. 107-123; Holmes v. Badde-
ley, 1 Phil. Ch. R. 476. Lord Langdale
has held, that the privilege of a cUent, as
to discovery, was not co-extensive with
that of his solicitor; and therefore he
compelled the son and heir to discover a
case, which had been submitted to counsel
by his father, and had come, with the
estate, to his hands. Greenlaw v. King,
1 Beavan, R. 137. But his opinion, on
the general question, whether the party is
bound to discover a case submitted to his
counsel, is known to be opposed to that of
a majority of the EngUsh judges,, though
still retained by himself See Crisp w.
Platel, 6 Beav. 62 ; Reece v. Trye, 9 Beav.
316, 318, 319 ; Peile v. Stoddart, 13 Jur.
373. [* It should be borne in mind that
no presumption of fact can be made against
the party, upon the ground that he de
dines to allow his counsel to disclose ex
isting confidences between them. Went-
worth V. Lloyd, 10 Ho. Lds. Cas. 589 ; s.
c. 10 Jur. N. s. 961 ; Bolton v. Corporation
of Liverpool, supra.]
274 LAW OF EVIDENCE. [PART H.
made before litigation, though in contemplation of, and with
reference to such litigation, which afterwards took place ; and
again, in respect to communications which, though in fkct made
after the dispute between the parties, which was followed by
litigation, were yet made neither in contemplation of, nor with
reference to, such litigation ; and again, in regard to communica-
tions of cases or statements of fact, made on behalf of a party by
or for his solicitor or legal adviser, on the subject-matter in ques-
tion, after litigation commenced, or in contemplation of litigation
on the same subject with other persons, with the view of asserting
the same right; but aU these distinctions have been overruled,
and the communications held to be within the privilege.^ And
where a cestui que trust filed a bill against his trustee, to set aside
a purchase by tlie latter of the trust property, made thirty years
back ; and the trustee filed his cross-bill, alleging that the cestui
que trust had long known his situation in respect to the property,
and had acquiesced in the purchase, and in proof thereof tliat he
had, fifteen years before, taken the opinion of counsel thereon, of
which he prayed a discovery and production; it was held that the
opinion, as it-was taken after the dispute had arisen which was
the subject of the original and cross-bill, and for the guidance of
one of the parties in respect, of that very dispute, was privileged
at the time it was taken ; and as the same dispute was still the
subject of the litigation, the communication still retained its
privilege.^ But where a bill for the specific performance of a
contract for the sale of an estate was brought by the assignees of
a bankrupt who has sold it under their commission, and a cross-
bill was filed against them for discovery, in aid of the defence,
it was held that the privilege of protection did not' extend to pro-
fessional and confidential communications between the defendants
iind their counsel, respecting the property and before the sale, but
■only to such as had passed after the sale ; and that it did not
■extend to communications between them in the relation of prin-
cipal and agent; nor to those had by the defendants or their
counsel with the insolvent, or his creditors, or the provisional
assignee, or on behalf of the wife of the insolvent.^
^ Ld. Walsinghara v. Goodricke, 8 " Woods v. Woods, 9 Jur. 015, per Sir
Hare, 122, 125 ; Hughes v. Biddulph, 4 J. Wigrara, V. C.
Russ. 190; Ventzj. Pacey, Id. 193; Clag- » Robinson v. Flight, 8 Jur. 888, per
ett V. Phillips, 2 Y. & C. 82 ; Combe v. Ld. Laagdale.
Corp. of Lond. 1 Y. & C. 631 ; Holmes
V Baddeley, 1 Phil. Ch. R. 476.
CHAP. XIII.] EVIDENCE EXCLUDED PEOM PUBLIC POIJCT. 275
§ 241. Upon the foregoing principles it has been held, that the
attorney is not hound to produce title deeds, or other documents,
left with him by his client for professional advice ; though he may
be examined to the fact of their existence, in order to let in
secondary evidence of their contents, wliich mtist be from some
other source than himself.^ But whether the object of leaving the
documents with the attorney was for professional advice or for
another purpose may be determined by the judge.^ If he was
consulted merely as a conveyancer, to draw deeds of conveyance,
the communications made to him in that capacity are within the
rule of protection,^ even though he was employed as the mutual
adviser and counsel of both parties ; for it would be most mis-
chievoiis, said the learned judges in the Common Picas, if it
could be doubted, whether or not an attorney, consulted upon
a man's title to an estate, were at liberty to divulge a flaw.*
Neither does the rule require any regular retainer, as counsel, nor
any particular form of application or engagement, nor the pay-
ment of fees. It is enough that he was applied to for advice or
aid in his professional character.^ But this character must have
been known to the applicant ; for if a jjerson should be consulted
confidentially, on the supposition that he was an attorney, when
in fact he was not one, he will be compelled to disclose the matters
communicated.^
§ 242. This rule is limited to cases where the witness, or the
1 Brard y. Ackerman, 5Esp. 119; Doe between themselres. So it was held in
V. Harris, 5 C. & P. 592 ; Jackson v. Bur- cliancery, in a _ suit by the wife against
tis, 14 Jolins. 391 ; Dale v. Livingston, 4 the husband, for specific performance of
Wend. S58 ; Brandt v. Klein, 17 Johns, an agreement to cliarge certain estates
335 ; Jackson v. McVey, 18 Johns. 330 ; with jier jointure. Warde v. Warde, 15
Bevan v. Waters, 1 M. & M. 235 ; Eicke Jur. 759.
V. Nokes, Id. 303; Mills v. Oddy, 6 C. & * Cromack v. Heathcote, 2 B. & B. 4;
P. 728 ; Marston v. Downes, Id. 381 ; 1 Doe v. Seaton, 2 Ad. & El. 171 ; Clay v.
Ad. & El. 31, s. c. ; explained in Hibbert Williams, 2 Munf. 105, 122; Doe v. Wat-
t>. Kniglit, 12 Jur. 162; Bate v. Kinsey, 1 kins, 3 Bing. n. c. 421.
C. M. & R. 38 ; Doe v. Gilbert, 7 M. & W. s Foster v. Hall, 12 Pick. 89. See also
102; Nixon v. IVIayoh, 1 M. & Rob. 76. Bean v. Quimby, 5 N. Hamp. 94. An ap-
Davies v. Waters, 9 M. & W. 608 ; Coates plication to an attorney or solicitor, to ad-
V. Bircli, 1 G. & 1). 474 ; 1 Dowl. P. C. vanee money on a mortgage of property
510 ; Doe v. Langdon, 12 Ad. & El. 711, described in a forged will, shown to him,
V. 8. is not a privileged communication as to
2 Reg. V. Jones, 1 Denis. Cr. Cas. 166. the will. Keg. v. Earlej', 1 Denison, 197.
8 Cromack v. Heathcote, 2 B & B. 4 ; And see Reg. o. Jones, Id. 166. [ * The
Parker v. Carter, 4 IVIunf. 273 ; see also mere fact of liaving retained counsel is not
Wilson V. Troup, 7 Johns. Ch. 25. If he a privileged communication. Forshaw v,
was employed as tlie conveyancer and Lewis, 1 Jur. N. s. 263.]
mutual counsel of both parties, eitlier of ^ Fountain v. Young, 6 Esp. 113
them may compel the production of the [Barnes u. Hai-ris, 7 Cush. 576, 578.]
deeds and papers, in a subsequent suit
276 LAW OF EVIDENCE. [PART H.
defendant in a bill in chancery treated as such, and so called to
discover, learned the matter in question only as counsel, solicitor,
or attorney, and in no other way. If, therefore, he were a party
to the transaction, and especially if he were party to the fraud (as,
for example, if he turned informer, after being engaged in a con-
spiracy), or, in other words, if he were acting for himself, though
he might also be employed for another, he would not be protected
from disclosing ; for in such a case his knowledge would not be
acquired solely by his being employed professionally.^
§ 243. The protection given by the law to such communications
does not cease with the termination of the suit, or other litigation
or business, in which they were made ; nor is it affected by the
party's ceasing to employ the attorney, and retaining another;
nor by any other change of relations between them; nor by the
death of the client. The seal of the law, once fixed upon them,
remains for ever ; unless removed ly the party himself, in whose
favor it was there placed.^ It is not removed without the client's
consent, even though the interests of criminal justice may seem to
require the production of the evidence.*
§ 244. This rule is further illustrated by reference to the cases,
in which the attorney may be examined, and which are therefore
' Greenough v- Gaskell, 1 My. & K. to the matter privileged. VaiUant v.
103, 104 ; Desborough v. Eawlins, 3 My. Dodemead, 2 Atk. 524 ; Waldron v. "Ward,
& Craig, 515, 521-523 ; Story on Eq. Pi. Sty. 449. If several clients consult him
§§ 601, 602. In Duffln v. Smith, Peake's respecting their common business, the
Cas. 108, Lord Kenyon recognized this consent of them all is necessary to enable
principle, though he apphed it to the case him to testify ; even in an action in which
of an attorney preparing title deeds, treat- only one of them is a party. Bank of
ing him as thereby becoming a party to Utica v. Mersereau, 3 Barb. Ch. R. 528.
the transaction ; but such are now held Where the party's solicitor became trustee
to be professional communications. [A under a deed for the benefit of the client's
communication to an attorney wUl not be creditors, it was held that communications
protected, unless it appears that, at the subsequent to the deed were still privi-
time it was made, he was acting as legal leged. Pritchard v. Foulkes, 1 Coop. 14.
adviser upon the very matter to which ^ Hex v. Smith, Phil. & Am. on Evid.
the communication referred. Briinden u. 182; Hex v. Dixon, 3 Burr. 1687 j Anon.
Growing, 7 Rich (s. c), 459. Facts stated 8 Mass. 370; Petrie's case, suma. But
to an attorney, as reasons to show that the see Regina v. Avery, 8 C. & P. 596, in
cause in which he is sought to be retained, which it was held that, where the same
does not conflict with the interests of a attorney acted for the mortgagee, in lend-
client for whom he is already employed, ing the money, and also for the prisoner,
are not confidential communications. Hea- the mortgagor, in preparing the mortgage
ton V. Findlay, 12 Penn. St. R. 304.1 deed, and received liom the prisoner, aa
=* Wilson V. Rastall, 4 T. R. 759, per part of his title deeds, a forged will, it was
BuUer, J. ; Petrie's case, cited arg. 4 T. K. held, on a trial for forging the will, that it
756; Parker v. Yates, 12 Moore, 520; was not a privileged communication ; and
Merle v. Moore, R. & M. 390. And the the attorney was held bound to produce it.
cUent does not waive this privilege merely See also Shore v. Bedford, 6 Man. &
by calhng the attorney as a witness,,un- Grang. 271.
less he also himself examines him in chief
CHAP. XIII.] EVIDENCE EXCLUDED PEOM PUBLIC POLICY. 277
sometimes mentioned as exceptions to. the rule. These apparent
exceptions are, where the communication was made before the
attorney ivas employed as such, or after his employment had ceased;
— or where, though consulted by a friend, because he was an
attorney, yet he refused to act as such, and was therefore only
applied to as a friend ; — or where there could not be said, in any
correctness of speech, to be a communication at all ; as where,
for instance, a fact, something that was done, became known to
him, from his having been brought to a certain place by the cir-
cumstance of his being the attorney, but of which fact any other
man, if there, would have been equally conusant (and even this
has been held privileged in some of the cases) ; — or where the
matter communicated was not in its nature private, and could in
no sense be termed the subject of a confidential disclosure ; —
or where the thing had no reference to the professional employment,
though disclosed while the relation of attorney and client sub-
sisted ; — or where the attorney, having made himself a suhseribing
witness, and thereby assumed another character for the occasion,
adopted the duties which it imposes, and became bound to give
evidence of all that a subscribing witness can be required to prove.
tn all such cases, it is plain that the attorney is not called upon
to disclose matters, which he can be said to have learned by com-
munication with his client, or on his client's behalf, matters
which were so committed to him, in his capacity of attorney, and
matters which in that capacity alone, he had come to know.i
§ 245. Thus, the attorney may be compelled to disclose the name
of the person by whom he was retained, in order to let in the
confessions of the real party in interest ; ^ — the character in
which his client employed liim, whether that of executor or trustee,
or on his private account ; ^ — the time when an instrument was
1 Per Lord Brougham, in Greenoiigh been held, that communication between a
V. Gaskell, 1 My. & K. 104. See also testator and the solicitor who prepared his
Desborough v. Rawlins, 3 My. & Craig, will, respecting the will and the trusts
521, 522 ; Lord Walsingham v. Goodricke, thereof, are not privileged. Itussell v.
3 Hare, R. 122; Story's Eq. PI. §§ 601, Jackson, 15 Jur. 1117.
602; Bolton v. Corporation of Liverpool, '•* Levy w. Pope, 1 M. & M. 410; Brown
1 My. & K. 88 ; Annesley v. E. of Angle- v. Payson, 6 N. Hamp. 443 ; Chirac v.
eea, 17 Howell's St. Tr. 1239-1244; Gil- Reinicker, 11 Wheat. 280; Gower v. Em-
lard V. Bates, 6 M. & W. 547; Rex v. ery, 6 Shepl. 79.
Brewer, 6 C. & P. .S63 ; Levers v. Van » Beckwith i: Benner, 6 C. & P. 681.
Buskirk, 4 Burr, 309. Communications But see Chirac v. Reinicker, 11 Wheat,
between the solicitor and one of his clients' 280, 295, where it was held, that counsel
witnesses, as to the evidence to be given could not disclose whether they were em-
by the witness, are not privileged. Mac- ployed to conduct an ejectment for their
kenzie v. Yeo, 2 Curt. 866. It has also client as landlord of the premises
VOL I 24
278 LAW OF BVIDENCB. [PART n.
put into his hands, but not . its condition and appearance at that
time, as, whetlier it were stamped or indorsed, or not;^ — the
fact of his paying over to his clieilt moneys collected for him ; — •
the execution of a deed by his client which he attested ; ^ — a
statement made by him to the adverse party .^ He may also be
called to prove the identity of his client ; * — the fact of his having
sworn to his answer in chancery, if he were then present;^ —
usury in a loan made by him as broker, as well as attorney to the
lender ; ^ — the fact that he or his client is in possession of a
certain document of his client's, for the purpose of letting in
secondary evidence of its contents;^ — and his client's hand-
writing.8 But in all cases of this sort, the privilege of secrecy is
carefully extended to all the matters professionally disclosed, and
which he would not have known but from his being consulted
professionally by his client.
§ 246. Where an attorney is called upon whether by subpoena
duces tecum, or otherwise, to produce deeds or papers belonging to
his client, who is not a party to the suit, the court will inspect the
documents, and pronounce upon their admissibility, according as
their production may appear to be prejudicial or not to the client ;
in like manner, as where a witness objects to the production of
his own title-deeds.^ And the same discretion will be exercised
by the courts, where the documents called for are in the hands
of solicitors for the assignees of bankrupts ; ^'^ though it was at one
1 Wheatley v. Williams, 1 Mees. & W. « Duffin v. Smith, Pealce's Cas. 108.
533; Brown v. Payson, 6 N. Hamp 443. ' Bevan v. Waters, 1 M. & M. 235,
But if tlie question were about a rasure in Eicke v. Nolces, Id. 303 ; .Jackson v.
a deed or will, he might be examined to McVey, 18 Joluis. 330 ; Brandt c. Klein,
the question, whether he had ever seen it 17 Johns. 335 ; Boe v. Ross, 7 M. & W.
in any other pliglit. Bull. N. P. 284. So, 102 ; Robson v. Kemp, 5 Esp. 53 ; Coates
as to a confession of the rasure by his v. Birch, 2 Ad. & El 252, n. s. ; Coveney
client, if it were confessed before his re- v. Tannahill, 1 Hill, S3 ; Dwyer v. Collins,
tainer. Cutts v. Pickering, 1 Ventr. 197. 16 ,Iur. 5e9 ; 7 E.xoh. 639.
See .also Baker v. Arnold, 1 Caines, 258, * Hurd r. Moriug, 1 C. & P. 372 ; .Toliu-
per Thompbon & Livingston, Js. son v. Daverne, 19 Johns. 134; 4 Hawk.
2 Doe r. Andrews, Cowp. 845; Robson P. C, b. 2, cli. 46, § 89.
V. Kemp, 4 lOsp. 235 ; 5 Esp. 53, s. c. ; ^ Copeland v. Watts, 1 Stark. R. 95 ;
Sanford v Remington. 2 Ves. 189. Amey i\ Long, 9 East, 473 ; 1 Carnpb. 14
» Kipon V. Davies, 2 Nev. & M. 210; s. c. ; Phil. & Am. on Evid. 186; 1 Phil.
Shore i-. Bedford, 5 M.&Gr. 271; Griffith Evid. 175; Reynolds v. Rowley, 3 Rob.
V. Davies, 5 B. & Ad. 502, overruling (Louis.) R. 201; Travis u. Januai-y, Id.
Gainsford v. Grammar, 2 Campb. 9, con- 227.
tra. 1" Bateson v. Hartsink, 4 Esp. 43 ; Co-
* Cowp. 846 ; Beckwith v. Benner, 6 hen v. Templar, 2 Stark. R. 260 ; Laing
C. & P. 681; llurd v. Moring, 1 C. & P. v. Barclay, 3 Stark. R. 38; Hawkins v.
372; Re.K «. Watkinson, 2 Stra. 1122, and Howard, Ry. & JW. 64; Corson v. Dubois,
note. Holt's Cas. 239; Bull v. Loveland, 10
6 Bull. N. P. 284; Cowp. 846. Pick. 9, 14; Volant v. Soyer, 22 Law
CHAP. Xin.] EVIDENCE EXCLUDED FROM PUBLIC POLICY. 279
time thought that their production was a matter of public duty.^
So, if the documents called for a,re in the hands of the agent or
steward of a third person, or even in the hands of the owner
himself, their production will not be required where, in the judg-
ment of the court, it may injuriously affect his title.^ This exten-
sion of the rule, which will be more fully treated hereafter, is
founded on a consideration of the great inconvenience and mis-
chief which may result to individuals from a compulsory disclosure
and collateral discussion of their titles, in cases where, not being
themselves parties, the whole merits cannot be tried.
§ 247. There is one other situation, in which the exclusion of
evidence has been strongly contended for, on the ground of con-
fidence and the general good, namely, that of a clergyman; and
this chiefly, if not wholly, in reference to criminal conduct and
proceedings ; that the guilty conscience may with safety disburden
itself by penitential confessions, and by spiritual advice, instruc-
tion, and discipline, seek pardon and relief. The law of Papal
Rome has adopted this principle in its fullest extent; not only
excepting such confessions from the general rules of evidence, as
we have already intimated,^ but punishing the priest who reveals
J. C. P. 83; 16 Eng. Law & Eq. K. instrument, with a view to determine
426. wlietlier tbe objection to giving testimony
1 Pearson v. Fletclier, 5 Esp. 90, per in regard to it be well founded.
Lord Elleuborough. Where a witness declined answering on
2 Eex V. Hunter, 3 C. & P. 591; Piclc- the ground that "his knowledge inquired
ering v. Noyes, 1 B. & C. 262; Roberts v. after had been acquired by virtue of his
Simpson, 2 Stark. R. 203 ; Doe v. Thomas, employment as the solicitor of the dolend-
9 B. & C. 288; Bull v. Loveland, 10 Pick, ant in relation to such matters, and from
9, 14. And see Doe v- Langdon, 12 Ad. no other source," the court held, Kinders-
& El. 711, N. s. ; 13 Jur. 96 ; Doe v. Hert- by, V. C, that to be privileged, it must
ford, 13 Jur. 632. H. brought an action be " a confidential communication between
upon bonds against E., in wliich the opin- liim and his client in the character of his
ion of eminent counsel bad been taken by professional relation of solicitor and client,
the plaintiff, upon a case stated. After- It' is not necessary to show that it was
wards an action was brought by C. against secret, but it must pass in that relation ;
E. upon other similar bonds, and the soli- and it must arise from communications by
citor of H. lent to the solicitor of C. the the client to the solicitor, or solicitor to the
case and opinion of counsel taken in the client." Marsh v. Keith, 6 Jur. n. s. 1182.]
former suit, to aid him in the conduct of ^ Supra, § 229, note. By the Capitu-
the latter. And upon a bill filed by E. laries of the French kings, and some other
against C, for the discovery and produc- continental codes of the Middle Ages, the
tion of this document, it was held to be a clergy were not only excused, but in some
privileged communication. Enthoven v. cases were utterly prohibited from attend-
Cobb, 16 Jur. 1152; 17 Jur. 81; 15 Eng. ing as witnesses in any cause. Clerici de
Law & Eq. R. 277, 295. [*In a late case, judicii sui cognitione non cogantur in pub-
Volant V. Soyer, 13 C. B. 231, it was held licftm dicere testimonium. Capit. Reg.
that an attorney had no right to produce Erancorum, lib. 7, § 118, (A. D. 827.) Ut
or to answer any questions concerning the ntilla ad testimonia dicendum, ecclesiastic!
nature or contents of a deed or other docu- cujuslibet pulsetur persona Id. §91. See
ment intrusted to him professionally by Leges Barbar. Antiq. vol. 3, pp. 313, 316,
his client; nor can the judge look at the Leges LangobardicsB, in the same coUeO'
i80 LAW OF BVIDENCB. [PART U.
Ihem. It even has gone farther ; for Mascardus, after observing
that, in general, persons coming to the knowledge of facts, under
an oath of secrecy, are compellable to disclose them as witnesses,
proceeds to state the case of confessions to a priest as not witliin
the operation of the rule, on the ground that the confession is
made not so much to the priest, as to the Deity ; whom he repre-
sents ; and that therefore the priest, when appearing as a witness
in his private character, may lawfully swear that he knows nothing
of the subject. Soo tamen restringe, non posse procedere in sacerdote
producto in testem contra reum oriminis, quando in confessione sacror
mentali fuit aliquid sihi dictum, quia potest dicere, se nihil scire ex
eo ; quod illud, quod scit, scit ut Beus, et ut Deus non producitur in
testem, sed ut homo, et tanquam homo ignorat illud super quo pro-
ducitur?- In Scotland, where a prisoner in custody and preparing
for his trial, has confessed his crimes to a clergyman, in order to
obtain spiritual advice and comfort, the clergyman is not required
to give evidence of such confession. But even in criminal cases,
this exception is not carried so far as to include communications
made confidentially to clergymen, in the ordinary course of their
duty.^ Though the law of England encourages the penitent to
confess his sins, " for the unburthening of his conscience, and
to receive spiritual consolation and ease of mind," yet the minister
to whom the confession is made is merely excused from presenting
the offender to the civil magistracy, and enjoined not to reveal the
matter confessed, " under pain of irregularity." ^ In all other
respects, he is left to the full operation of the rules of the common
law, by which he is boulid to testify in such cases, as any other
person when duly summoned. In the common law of evidence
there is no distinction between clergymen and laymen; but aU
confessions, and other matters, not confided to legal counsel, must
be disclosed, when required for the purposes of justice. Neither
penitential confessions, made to the minister, or to members of
the party's own church, nor secrets confided to a Roman Catholic
tion, vol. 1, pp. 184, 209, 237. But from 4, p. 294 ; Ancient Laws and Inst, of
the constitutions of King Ethelred, wliicli England, vol. 1, p. 347, § 27.
.provide for the punishment of priests i JWascard. De Probat. vol. 1, Quaest.
guilty of perjury, — " Si presbyter, alicubi 5, n. 61 ; Id. Conol. 377. Vid. et P. Fari-
Inveniatur in falso testimonio, vel in per- nac. Opera, tit. 8, Quaest. 78, n. 73.
jurio," — it would seem that the English 2 'pait on Evidence, pp. 886, 387; Ali-
law of that day did not recognize any dis- son's Practice, p. 586.
tinction between them and the laity, in ^ Const. & Canon, 1 Jac. 1, Can. cxiii. j
regard to the obligation to testify as wit- Gibson's Codex, p. 963.
nesses. See Leges Barbaror. Antiq. vol.
CHAP. Xm.] BVIDBNOE EXCLUDED FROM PUBLIC POLICY.
281
priest in the course of confession, are regarded as privileged com-
munications.^
§ 248. Neither is tliis protection extended to medical persons,^
in regard to information wliicli they have acquired confidentially,
by attending in their professional characters ; nor to confidential
friends,^ clerks,* bankers,^ or stewards,^ except as to matters which
the employer himself would not be obliged to disclose, such as
his title-deeds and private papers, in a case in which he is not
a party.
§ 249. The case of Judges and arbitrators may be mentioned,
as the second class of privileged communications. In regard to
judges of courts of record, it is considered dangerous to allow
them to be called upon to state what occurred before them in
court ; and on this ground, the grand jury were advised not to
examine the chairman of the Quarter Sessions, as to what a person
testified in a trial in that court.'' The case of arbitrators is
Wilson V. Rastall, i T. R. 753 ; But-
ler V. Moore, McNally's Evid. 253-255;
Anon. 2 Skin. 404, per Holt, C. J. ; Du
Barre v. Livette, Peake's Cas. 77 ; Com-
monwealth i: Drake, 15 Mass. 161. The
contrary was held by De Witt Clinton,
Mayor, in the Court of General Sessions
in New York, June, 1813, in The People
V. Phillips, 1 Southwest. Law Journ. p.
90. By a subsequent statute of New York
(2 Rev. St. 40», § 72), "No minister of
the gospel, or priest of any denomination
whatsoever, shall be allowed to disclose
any confessions made to him in his pro-
fessional character, in the course of disei-
phne enjoined by the rules or practice of
such denomination." This is held to ap-
ply to those confessions unli/ which are
made to the minister or priest profession-
ally, and in the course of discipline enjoined
by the Church. The People v. Gates, 13
Wend. 311. A similar statute exists in
Missouri (Rev. Stat. 1845, ch. 186, § 19;
and in Wisconsin, Rev. Stat. 1849, ch. 98,
§ 75 ; and in Micliiqan, Rev, Stat, 184G,
ch. 102, § 85; and iii Iowa, Code of 1851,
art. 2393). See also Broad v. Pitt, 3 C.
& P. 518 ; in which case, Best, C. J.,
said, that he for one, would never compel
a clergyman to disclose communications
made to him by a prisoner ; but that, if
he chose to disclose them, he would re-
ceive tliem in evidence. Joy on Confes-
sions, &c., pp. 49-58 ; Best's Principles of
Kvidence, § 417-419.
2 Duchess of Kingston's case, 11 Ilargr.
St. Tr 243: 20 Howell's St. Tr. 643;
Rex V. Gibbons, 1 C. & P. 97 ; Broad v.
Pitt, 3 C. & P. 518, per Best, C. J. By
the Revised Statutes of New York (vol.
2, p. 406, § 73), " No person, duly author-
ized to practise physio or surgery, shall
be allowed to disclose any information
which he may have acquired in attending
any patient in a professional character,
and which information was necessary to
enable him to prescribe for such patient
as a physician, or to do any act for him as
a surgeon." But though the statute is
thus express, yet it seems the party him-
self may waive the privilege ; in which
case the facts may be disclosed. Johnsdn
V. Johnson, 14 Wond. 637. A consulta-
tion, as to the means of procuring abortion
in another, is not privileged by this stat-
ute. Hewett V. Prime, 21 Wend. 79.
Statutes to the same eifect have been en-
acted in Missouri (Kev. Stat. 1845, ch.
186, § 20); and in Wiisconsin (Rev. Stat.
1849, ch. 98, § 75) ; and in Middqan (Rev.
Stat. 1846, ch. 102, § 86). So miowa; in
which state the privilege extends to pub-
lic officers, in cases where the public in-
terest would sutFer by the disclosure.
Code of 1851, arts. 2398, 2395.
8 4 T. R. 758, per Ld. Kenyon; Hoff-
man V. Smith, 1 Caines, 157, 159.
^ Lee V. Birrell, 3 Campb. 337 ; Webb
V. Smith, 1 C. & P. 337.
s Loyd V. Fresli field, 2 C. & P. .■325.
^ Vaillant v. Doilcnicad, 2 Atk, 524;
4 T. R. 756, per BuUer, J. ; E. of Eahuouth
V. Moss, 11 Price, 455.
' Regina o. Gazard, 8 C. & P. 595, per
24*
282 LAW OF EVIDENCE. [PaET II,
governed by the same general policy ; and neither the courts of
law nor of equity will disturb decisions deliberately made by
arbitrators, by requiring them to disclose the grounds of their
award, unless under very cogent circumstances, such as upon an
allegation of fraud ; for, Interest reipvMiccR ut sit finis litiumA
§ 250. "We now proceed to the third class of cases, in which
evidence is excluded from motives of public policy, namely, secrets
of state, or things, the disclosure of which would be prejudicial to
the public interest. Tliese matters are eitlier those which concern
the administration of penal justice, or those which concern the
administration of government ; but the principle of public safety
is in both cases the same, and the rule of exclusion is applied no
further than the attainment of that object requires. Thus, in
criminal trials, the names of persons employed in the discovery
of the crime are not permitted to be disclosed, any farther than is
essential to a fair trial of the question of tlie prisoner's innocence
or guilt.^ " It is perfectly right," said Lord Chief Justice Eyre,^
" that ail opportunities should be given to discuss the truth of the
evidence given against a prisoner ; but there is a rule which has
universally obtained, on account of its importance to the public
for the detection of crimes, that those persons who are the channel
by means of which that detection is made shoidd not be unneces-
sarily disclosed." Accordingly, where a witness, possessed of
such knowledge, testified that he related it to a friend, not in
office, who advised him to communicate it to another quarter;
a majority of the learned judges held that the witness was not to
be asked the name of that friend ; and they all were of opmion
that all those questions which tend to the discovery of the channels
by which the disclosure was made to the officers of justice, were,
upon the general principle of the convenience of public justice,
to be suppressed ; that all persons in that situation were protected
from the discovery ; and that, if it was objected to, it was no more
competent for the defendant to ask the witness who the person
Patteson, J. ; [People v. Miller, 2 Parker, that, in a public prosecution, no question
C. E. 197.] can be put which tends to reveal who was
1 Story, Eq. PI. 458, note (1); Anon, the secret informer of the government;
3 Atk. 644; 2 Story, Eq. Jurisp. 680; even though the question be addressed to
Johnson v. Durant, 4 C. & P. 327 ; Ellis a witness iu order to ascertain whether he
V. Saltan, lb. n. (a) ; Habershon v. Troby, was not himself the informer. Att.-Gen.
8 Esp. 38. [SeeS Greenl. Evid. (7th edit.) v. Briant, 15 Law Journ. n. s. Exch. 265;
§ 78, and notes.] 5 Law Mag. 333, u. s.
2 Eex V. Hardy, 24 Howell's St. Tr. s i^ jje^ „. Hardy, 24 Howell's St. Tr.
758. The rule has been recently settled, 808.
CHAP. SIII.] EVIDENCE EXCLUDED FROM PUBLIC POLICY. 283
was that advised him to make a disclosure, than to ask who the
person was to whom he made the disclosure in consequence of
that advice, or to ask any other question respecting the channel
of communication, or all that was done under it.^ Hence it
appears that a witness, who has been employed to collect informal
tion for the use of government, or for the purposes of the police,
will not be permitted to disclose the name of his employer, or the
nature of the connection between them, or the name of any person
who was the channel of communication with the government or
its officers, nor whether the information has actually reached the
government. But he may be asked whether the person to whom
the information was communicated was a magistrate or not.^
§ 251. On a like pi-inciple of public policy, the official transac-
tions between the heads of the departments of state and their subor-
dinate officers are in general treated as privileged communications.
Thus, communications between a provincial governor and his
attorney-general, on the state of the colony, or the conduct of its
officers ; ^ or between such governor and a military officer under
his authority;'' the report of a military commission of inquiry,
made to the commander-in-chief; ^ and the correspondence between
an agent of the government and a Secretary of State ,^ are con-
fidential and privileged matters, which the interests of the state
will not permit to be disclosed. The President of the United
States, and the governors of the several states, are not bound to
produce papers or disclose information communicated to them,
when, in their own judgment the disclosure would, on public con-
siderations, be inexpedient.^ And where the law is restrained by
public policy from enforcing the production of papers, the like
necessity restrains it from doing what would be the same thing
in effect, namely, receiving secondary evidence of their contents.^
1 Kex V. Hardy, 24 Howell's St. Tr. borough, cited by the Attorney-General;
808-815, per Ld. C. J. Kyre ; Id. 815-820. Marbury v. Madison,.l Cranuli, 144.
2 1 Phil. Kvid. 180, 181; Rex v. Wat- ' 1 Burr's Trial, pp. 186, 187, per Mar-
son, 2 Stark. R. 136 ; 82 Howell's St. Tr. shall, C. J. ; Gray v. Pentland, 2 S. & K.
101; United States v. Moses, 4 Wash. 23.
726 ; Home v. Ld. F. C Bentihck, 2 E. & • » Gray v. Pentland, 2 Serg. & R. 23,
B. 180, 162, per Dallas, C. J. 31, 32, per Tilghnian, C. J., cited and ap-
^ Wyatt V. Gore, Holt's N. P. Cas. pi-oved in Yoter t. Sanno, 6 Wntts, 156,
299. per Gibson, C. J. In Law r. vScott, 5
* Cooke V. Maxwell, 2 Stark. R. 183. Har. & J. 438, it seems to liave been held,
5 Home V. Ld. P. 0. Bentinck 2 B. &. that a senator of the United States may
B. 130. be examined, as to what transpired in a
^ Anderson v. Hamilton, 2 B. & B. 156, secret executive session, if the Senate has
note ; 2 Stark. R. 185, per Lord Ellen- refused, on the party's application, to re-
284 LAW OP ETIDBNCE. [PART 11.
But communications, though made to official persons, are not
privileged where they are not made in the discharge of any public
duty; such, for example, as a letter by a private individual to
the chief secretary of the postmaster-general, complaining of the
conduct of the guard of the mail towards a passenger.^
§ 252. For the same reason of public policy, in the furtherance
of justice, the proceedings qf grand-jurors are regarded as privileged
communications. It is the policy of the law, that the preliminary
inquiry, as to tlie guilt or innocence of a party accused, should
be secretly conducted ; and in furtherance of this object every
grand-juror is sworn to secrecy.^ One reason may be, to prevent
the escape of the party, should he know that proceedings were in
train against him ; another may be, to secure freedom of delibera-
tion and opinion among the grand-jurors, which would be impaired
if the part taken by each might be made known to the accused.
A third reason may be, to prevent the testimony produced before
them from being contradicted at the trial of the indictment, by
subornation of perjury on the part of the accused. The rule
includes not only the grand-jurors themselves, but their clerk,^
if they have one, and the prosecuting officer, if he is present at
their deliberations ; * all these being equally concerned in the
administration of the same portion of penal law. They are not
pennitted to disclose who agreed to find the bill of indictment,
or who did not agree ; nor to detail the evidence on which the
move tlie injunction of secrecy. Sed force the disclosure of such secrets with-
qimre, for if so, the object of tlie rule, in out very conclusive evidence that it may
tlie preservation of state secrets, may be tlone without prejudice to the public
generally be deteated. And see Plunkett service.] .
V. Cobbett, -I'd Howell's St. Tr. 71, 72; 5 i Blake v. Pilford, 1 M. & Rob. 198.
Esp. 13G, s. c, wliere Lord Eilonborougli ^ [" The extent of the limitation upon
held, tliat though one member of parUa- the testimony of grand-jurors is best de-
ment may be asked as to the tact that fined by the terms of their oath of office,
anotlier nieiiiber took part in a debate, yet by which 'the commonwealth's counsel,
he WHS not bound to relate any thhigwliich t\\eh fellows' and Iheir own, they are to
liad been delivered by such a speaker as a keep secret,' " By Bigelow, J. Common-
msniiier of parliament. But it is to be wealth v. Hill, 11 Cush. 137, 140.]
observeil, tiiat this was placed by Lord - ^ 12 Vin. Abr. 38, tit. Evid. B. a, pi. 5;
EllenlKHOug'li on the ground of personal Trials per Pais, 315.
privile;;e in the member; whereas the * Commonwealth v. Tilden, cited in
trausiictiiiiis of a session, after strangers 2 Stark. Evid. 232, note (1), by Metcalf;
are e.xcliiileil, are placed under an injnnc- McLellan v. Kicliardson, 1 Sliepl. 82. But
tion of secrecy, for reasons of state, on the trial of an indictnient for perjury,
(*ln ii soiiiewliat recent case, Beatson e. committed in giving evidence before tlie
Skene, 5 II, & N. 838, it is said the liead grand-jury, it has been held, th.at another
of the deparlment will judge of tlie pro- person, who was present as a witness in
priety of withholding state secrets in the tlie s.ame m.'itter,at the same time, is oom-
first iiisiaiice ; and unless such officer refers petent to testify to what the prisoner said
tlie question to tlie court, it will not eu- before the grand-jury ; and that a police-
f!HAP. XIII.] EVIDENCE EXCLUDED FROM PUBLIC POLICY. 285
accusation was founded.^ But they may be compelled to state
whether a particular person testified as a witness before the grand-
jury ; 2 though it seems they cannot be asked, if his testimony
there agreed with what he testified upon the trial of the indictment.^
Grand-jurors may also be asked, whether twelve of their number
actually concurred in the finding of a bill, the certificate of the
foreman not being conclusive evidence of that fact.*
§ 252a. On similar grounds of public policy, and for the pro-
tection of parties against fraud, the law excludes the testimony
of traverse jurors, when offered to prove misbehavior in the jury in
regard to the verdict. Formerly, indeed, the affidavits of jurors
have been admitted, in support of motions to set aside verdicts
by reason of misconduct ; but that practice was broken in upon by
Lord Mansfield, and the settled course now is to reject them,
because of the mischiefs which may result if the verdict is thus
placed in the power of a single juryman.^
§ 253. There is a fourth species of evidence which is excluded,
namely, that which is indecent, or offensive to public morals, ox
injurious to the feelings or interests of third persons, the parties
themselves having no interest in the matter, except what they
have impertinently and voluntarily created. The mere indecency
of disclosures does not, in general, suffice to exclude them, where
officer in waiting was competent for the testimony, either before them or at the
same purpose ; neither of tliese being trial, the reasons mentioned in tlie text
sworn to secrecy. Regina v, Huglies, 1 for excluding the testimony of grand-
Car. & Kir. .519. jurors, do not prevent them from being
1 Sykes v. Dunbar, 2 Selw. N. P. 815, called as witnesses after the first indict-
[1059] ; Huidekoper v. Cotton, 3 Vatts, ment has been tried, in order to estabUsh
56; McLellan v. Richardson, 1 Shepl. 82; the guilt of the perjured party. See 4
Low's case, 4 Greenl. 439, 446, 453; Bl. Comm. 126, n. 5, by Christian; 1
Burr's Trial [Anon.], Evidence for Deft. Chitty's Crim. Law, p. [317]. Sir J. Fen-
p. 2. wick's case, 13 Howell's St. Tr. 610, 611 ;
2 Sykes v. Dunbar, 2 Selw. N. P. 815, 5 St. Tr. 72 ; Wharton's Am. Crim. Law,
[1059] ; Huidekoper v. Cotton, 3 Watts, p. 130. By the Revised Statutes of New^
56 ; Treeman v. Arkell, 1 C. & P. 135, York, vol. 2, p. 724, § 31, the question may
137, n. (c); [Commonwealth v. Hill, 11 be asked, even in civil cases.
Cush. 137, 140.] « 4 Hawk. P. C, b. 2, ch. 25, § 15;
3 12Vin. Abr. 20, tit. Evidence, H. ; McLellan v. Richardson, 1 Shepl. 82;
Imlay v. Rogers, 2 Halst. 347. The rule Low's case, 4 Greenl. 489 ; Common-
in the text is applicable only to civil ac- wealth v. Smith, 9 Mass. 107.
tions. In the case last cited, which was ^ Vaise v. Delaval, 1 T. R. 11; Jack-
trespass, the question arose on a motion son v. Williamson, 2 T'. E. 281 ; Owen v.
for a new trial, for the rejection of the Warburton, 1 New R. 326 ; Little v. Lar-
grand-juror, who was offered in order to rabee, 2 Greenl. 37, 41, note, where the
discredit a witness ; and the court being cases are collected. The State v. Free-
equally divided, the motion did not pre- man, 5 Conn. 848 ; Meade v. Smith, 16
vail. Probably such also was the nature Conn. 346 ; Straker «. Graham, 4 M. &
of the case in Clayt. 84, pi. 140, cited by W. 721 ; [Boston, &c., R. R. Corp. v. Dana,
Viner. But where a witness before the 1 Gray, 83, 105 ; Folsom v. Manchester,
grand-jury has committed perjury in his 11 Cush. 334, 837.1
286 LAW OP EVIDENCE. [PABT H.
the evidence is necessary for the purposes of civil or criminal
justice ; as, in an indictment for a rape ; or in a question upon
the sex of one, claiming an estate entailed, as heir male or female ;
or upon the legitimacy of one claiming as lawful heir ; or in an
action by the husband for criminal conversation with the wife.
In these and similar cases the evidence is necessary, either for
the proof and punishment of crime, or for the vindication of
rights existing before, or independent of, the fact sought to be
disclosed. But where the parties have voluntarily and imperti-
nently interested themselves' in a question, tending to violate the
peace of society, by exhibiting an innocent third person to the
world in a ridiculous or contemptible light, or to disturb his own
peace and comfort, or to offend public decency by the disclosures
which its decision may require, the evidence will not be received.
Of this sort are wagers or contracts respecting the sex of a third
person,^ or upon the question whether an unmarried woman has
had a child.^ In this place may also be mentioned the declara-
tions of the husband or wife, that they have had no connection,
though living together, and that therefore the offspring is spurious ;
which on the same general ground of decency, morality, and
policy, are uniformly excluded.^
§ 254. Co7nmunications between husband and wife belong also
to the class of privileged communications, and are therefore pro-
tected, independently of the ground of interest and identity,
which precludes the parties from testifying for or against each
other. The happiness of the married state requires that there
should be the most unlimited confidence between husband and
wife ; and this confidence the law secures, by providing that it
shall be kept for ever inviolable ; that nothing shall be extracted
from the bosom of the wife, which was confided there by the
husband. Therefore, after the parties are separated, whether it
be by divorce or by the death of tht) husband, the wife is still
precluded from disclosing any conversations with him; tliough
she may be admitted to testify to facts which came to her knowl-
1 Da Costa v. Jones, Cowp. 729. » Goodright v. Moss, Cowp. 594, said,
2 Ditcliburn v. Goldsmith, 4 Cam pb. per Lord Mansfield, to have been solemnly
152. If the subject of the action is frivo- decided at tiie Delegates. Cope v. Cope,
lous, or the question impertinent, and this 1 M. & Kob. 269, per Alderson, ,J. ; Rex
is apparent on the record, the com-t will v. Book, I Wils. 840; Kex w.' LutTe, 8
not proceed at all in the trial. Brown v. East, 193, 202, 203; Uex v. Kea, 11 East,
Leeson, 2 H. Hi. 43; Ilenkin v. Gerss, 2 132; Commonwealth w. Shepherd, 6 Binn.
Campb. 408. 283.
CHAP. XIII.] EVIDENCE EXCLUDED PROM PUBLIC POLICT. 287
edge by means equally accessible to any person not standing in
that relation.^ Their general incompetency to testify for or against
each other will be considered hereafter, in its more appropriate
place.
§ 254a. It may be mentioned in this place, that though papers
and other subjects of evidence may have been illegally taken from
the possession of the party against whom they are offered, or
otherwise unlawfully obtained, this is no valid objection to their
admissibility, if they are pertinent to the issue. The court wiU
not take notice how they were obtained, whether JawfuUy or un-
lawfully, nor will it form an issue, to determine that question.^
1 Monroe v. Twistleton, Peake's Evid. Leigh's R. 142, Hi. See further, infra,
App. Ixxxii. as explained by Lord Ellen- § 333-345; [Smith v. Potter, 1 WilHams,
borough in Aveson v. Lord Kinnaird, 6 304 ; Goltra v. Wolcott, 14 111. 89 ; Stein
East, 192, 193 ; Doker v. Hasler, Ry. & v. Weidman, 20 Mis. 17. In an action on
M. 198 ; Stein v. Bowman, 13 Peters, R. the case brought by a husband for crimi-
209, 223 ; CofBn ;;. Jones, 13 Pick. 441, nal conversation with his wife, the latter,
445 ; Edgell v. Bennett, 7 Verm. R. 536 ; after a divorce from the bonds pf matri-
Williams v. Baldwin, Id. 503, 506, per mony obtained subsequent to the' time of
Royce, J. In Beveridge v. Minter, 1 C. the alleged criminal intercourse, is a com-
& P. 364, where the widow was permitted petent witness for the plaintiff to prove
by Abbott, C. J., to testify to certain ad- the charge in the declaration. Dicker-
missions of her deceased husband, relative man v. Graves, 6 Gush. 308 ; RatcUff v.
to tlie money in question, this point was Wales, 1 Hill, 63.]
not considered, the objection being placed ^ Commonwealth v. Dana, 2 Met. 329,
wholly on the ground of her interest in 837; Leggett w. Tollervey, 14 East, 302;
the estate. See also 2 Kent, Comm. 180; Jordan v. Lewis, Id. 306, note
2 Stark. Evid. 399 ; Robbias v. King, 3
288 LAW OP EVIDENCE. [PABT II.
CHAPTER XIV.
OP THE NUMBER OP WITNESSES, AND THE NATURE AND QUANTITY OS
PROOP REQUIRED IN PARTICULAR CASES.
I * § 255. Two witnesses required to same overt act of treason, or to distinct acts of
same species.
256. Proof restricted to overt acts laid in indictment.
257. In trials for perjury more is required than the evidence of one witness.
257a. And the rule applies to each separate specification.
258. It is not indispensable that any witness swear to the falsity. Other proof
may be sufficient.
259. Mere contradiction in prisoner's statements not suflEicient.
260. An answer in chancery requires more than the testimony of one witness to
overcome it.
260a. General usage should he proved by more than one witness.
261. Written documents required to effect transmission of title in certain cases.
262. Statute of frauds requires written evidence in some cases.
263. This embraces all sales of land or of any interest therein.
264. Assignments or surrenders must also be in writing, &c.
265. Destruction of deed will not revest the title.
266. All trusts except resulting trusts must be evidenced by writing.
267. This statute embraces sundry other contracts.
268. Eorm of contract or mode of signature not important.
269. Power of agent need not be in writing. Auctioneer, agent of both parties.
270. Land embraces all interests and rights pertaining thereto.
271. Sale of things attached to land, without any use of land, not an interest in
the land.
272. Devises of land required by the statute to be in writing, and witnessed by
three witnesses.
273. What amounts to valid revocation of wiU.
274. Indentures of apprenticeship required to be in writing.]
§ 255. Under this head it is not proposed to go into an extended
consideration of the statutes of treason, or of frauds, but only to
mention briefly some instances in which those statutes, and some
other rules of law, have regulated particular cases, taking them
out of the operation of the general principles, by which they would
otherwise be governed. Thus, in regard to treasons though by
the common law the crime was sufficiently proved by one credible
CHAP. XIV.] NUMBER OP WITNESSES. 289
■witness,^ yet, considering the great weight of the oath or duty of
allegiance, against the probability of the fact of treason ,2 it has
been deemed expedient to provide,-^ that no person shall be in-
dicted or convicted of high treason, but upon the oaths and testi-
mony of two witnesses to the same overt act, or to separate overt
acts of the same treason, unless upon his voluntary confession in
open coiirt. We have already seen that a voluntary confession
out of court, if proved by two witnesses, is sufficient to warrant a
conviction ; and that in England the crime is well proved if there
be one witness to one overt act, and another witness to another
overt act, of the same species of treason.* It is also settled that
when the prisoner's confession is offered, as corroborative of the
testimony of such witnesses, it is admissible, though it be proved
by only one witness ; the law not having excluded confessions,
proved in that manner, from the consideration of the jury, but
only provided that they alone shall not be sufficient to convict the
prisoner.^ And as to all matters merely collateral, and not con-
ducing to the proof of the overt acts, it may be safely laid down
as a general rule, that whatever was evidence at common law,
is still good evidence under the express constitutional and statu-
tory provision above mentioned.''
1 Foster's Disc. p. 233 ; Woodbeck v. of which statutes, the rule afterwards de-
Keller, 6 Cowen, 120 ; McNally's Evid. clared in Stat. 7 W. III. was adopted. See
31. Rex V. Ld. Stafford, T. Rayra. 407. The
^ This is conceived to be the true foun- Constitution of the United States pro-
dation on which the rule has, in modern vides that — "No person shall he convic-
times, been enacted. The manner of its ted of treason unless on the testimony of
first introduction into the statutes was two witnesses to the same overt act, or
thus stated by the Lord Chancellor, in on confession in open court." Art. 3, § 3,
Lord Stafford's case, T. Raym. 408. LL. U. S. vol. 2, ch. 36, § 1. This provi-
" Upon this occasion, my Lord Chancel- sion has been adopted, in terms, in many
or, in the Lords House was pleased to of the state constitutions. But as in
communicate a notion concerning the rea- many other states there is no express law
son of two witnesses in treason, which he requiring that the testimony of both wit-
said was not very familiar, he believed ; nesses should be to the same overt act, the
and it was this : anciently all or most of rule stated in the text is conceived to he
the judges were churchmen and ecclesias- that which would govern in trials for ti-ea-
tical persons, and by the canon law now, son against those states ; though in trials
and then, in use all over the Christian in the other states, and for treason against
world, none can be condemned of heresy the United States, the constitution.<il pro-
but by two lawful and credible witnesses ; vision would confine the evidence to the
and bare words may make a heretic, but same overt act.
not a traitor, and anciently heresy was * Supra, § 235, n. ; Lord Stafford's
treason ; and from thence the parliament case, 7 Howell's St. T'r. 1527 ; Foster's
thought fit to appoint that two witnesses Disc. 237 ; 1 Burr's Trial, 196.
ought to be for proof of high treason." ^ Willis's case, 15 Howell's St. Tr.
s This was done by Stat. 7 W. III. c. 623, 624, 625 ; Grossfield's case, 26 How
8, § 2. Two witnesses were required by ell's St. Tr. 55, 56, 57 ; Foster's Disc. 241,
the earlier statutes of 1 Ed. VI. c. 12, and « Supra, § 235 ; Foster's Disc. 24ft
5 & 6 Ed. VI. c. 11 ; in the construction 242; 1 East, P. C 130.
VOL. I. 25
290 LAW OP EVIDENCE. [PART II.
§ 256. It may be proper in this place to observe, that in treason,
the rule is that no evidence can be given of any overt act, which
is not expressly laid in the indictment. But the meaning of the
rule is, not that the whole detail of facts should be set forth, but
that no overt act, amounting to a distinct independent charge,
though falling under the same head of treason, shall be given in
evidence, unless it be expressly laid in the indictment. If, how-
ever, it will conduce to the proof of any of the overt acts which
are laid, it may be admitted as evidence of such overt acts.^ This
rule is not peculiar to prosecutions for treason ; though, in conse-
quence of the oppressive character of some former state prosecu-
tions for that crime, it has been deemed expedient expressly to
enact it in the later statutes of treason. It is nothing more than
a particular application of a fundamental doctrine of the law of
remedy and of evidence, namely, that the proof must correspond
with the allegations, and be confined to the point in issiie.^ This
issue, in treason, is, whether the prisoner committed that crime,
by doing the treasonable act stated in the indictment ; as, in slan-
der, the question is, whether the defendant injured the plaintiff
by maliciously uttering the falsehoods laid in the declaration ;
and evidence of collateral facts is admitted or rejected on the like
principle in either case, accordingly as it does or does not tend to
establish the specific charge. Therefore the declarations of the
prisoner, and seditious language used by him, are admissible in
evidence as explanatory of his conduct, and of the nature and
object of the conspiracy in which he was engaged. ^ And after
proof of the overt act of treason, in the county mentioned in the
indictment, other acts of treason tending to prove the overt acts
laid, though done in a foreign country, may be given in evidence.*
§ 257. In proof of the crime of perjunj, also, it was formerly
held that two witnesses were necessary, because otherwise there
would be nothing more than the oath of one man against another,
upon which the jury could not safely convict.'' But this strictness
1 Foster's Disc. p. 245 ; 1 Phil. Evid. * Deacon's case, 16 Howell's St. Tr.
471 ; Deacon's case, 18 Howell's St. Tr. 367 ; Foster, 11. 9, s. c. ; Sir Henry
866 ; Foster, R. 9, s. c. ; Regicide's case, Vane's case, 4tli res., 6 Howell's St. Tr.
J. Kely. 8, 9 ; 1 East, P. C. 121, 122, 123 ; 123, 129, n. ; 1 East, P. C. 123, 12ti. I See
2 Stark. Evid. 800, 801. post, vol. 3, (4tli edit.) 246-248.1
2 Supra, §§ 51, 52, 53. 5 i stark. Evid. 443 ; 4 Hawk. P. C,
5 Rexw.Watson, 2Stark. R. 116, 134; b. 2, c. 46, § 10; 4 Bl. Coram. 358; 2
i United States v. Hanway, 2 Wallace, Jr. Buss, on Crimes, 1791.
39.]
CHAP. XIT.]
NUMBER OP WITNESSES.
291
lias long since been relaxed ; the true principle of the rule being
merely this, that the evidence must be something more than suffi-
cient to counterbalance the oath of the prisoner, and the legal
presumption of his innocence.^ The oath of the opposing witness,
therefore, will not avail, unless it be corroborated by other inde-
pendent circumstances. But it is not precisely accurate to say,
that these additional circumstances must be tantamount to another
witness. The same effect being given to the oath of the prisoner,
as though it were the oath of a credible witness, the scale of evi-
dence is exactly balanced, and the equilibrium must be destroyed,
by material and independent circumstances, before the party can
be convicted. The additional evidence needs not be such as,
standing by itself, would justify a conviction in a case where the
testimony of a single witness would suffice for that purpose. But
it must be at least strongly corroborative of the testimony of the
accusing witness;^ or, in the quaint but energetic language of
Parker, C. J., " a strong and clear evidence, and more numerous
than the evidence given for the defendant." ^
1 The history of this relaxation of the
sternness of the old rule is thus stated by
Mr. Justice Wayne,- in delivering the
opinion of the court in The United States
V. Wood, 14 Peters, 440, 441. " At first,
two witnesses were required to convict in
a case of perjury ; botli swearing directly
adversely from tlie defendant's oath. Con-
temporaneously witli this requisition, the
larger number of witnesses on one side or
the oDier prevailed. Then a single wit-
ness, corroborated by other witnesses,
swearing to circumstances bearing directly
upon the imputed corpus delicti of a defen-
dant, was deemed sufficient. Next, as in
the case of Hex v. Knill, 5 B. & A. 929,
n., witli a long interval between it and
the preceding, a witness, who gave proof
only of the contradictory oaths of the de-
fendant on two occasions, one being an
examination before the House of Lords,
and tlie other an examination before the
Hoiise of Commons, was held to be suffi-
cient ; though this principle had been act-
ed on as early as 1764, by Justice Yates,
as may ha seen in the note to the case of
The King v. Harris, 5 B. & A. 937, and
was acquiesced in by Lord Mansfield, and
Justices, Wilmot and Aston. We are
awaro that, in a note to Kex v. May-
hew, 6 C. & P. 315, a doubt is implied
concerning the case decided by Justice
Yates ; but it has the stamp of authen-
ticity, from its having been referred to in
a case happening ten years afterwards be-
fore Justice Cliambre, as will appear by
the note in 6 B. & A. 937. Afterwards, a
single witness, with the defendant's biU
of costs (not sworn to) in lieu of a second
witness, delivered by the defendant to the
prosecutor, was held sufficient to contra-
dict his oath ; and in that case Loi'd Den-
man says, ' A letter written by the defen-
dant, contradicting his statement on oath,
would be sufficient to make it uimecessary
to have a second witness.' 6 C. & P. 315.
We thus see that this rule, in its proper
application, has been expanded beyond its
literal terms, as cases have occurred in
which proof's have been offered equivalent
to tlie end intended to be accomplished
by tlie rule."
2 Woodbeck v. KeUer, 6 Cowen, 118,
121, per Sutherland, J. ; Cliampney's case,
1 Lew. Cr. Cas. 258. And see infra, §
381.
s The Queen v. Muscot, 10 Mod. 194.
See also The State v. Molier, 1 Dev. 263,
265; The State v. Hay ward, 1 Nott. &
McCord, 547 ; Rex v. Mayhew, 6 C. & P.
315 ; Reg. v. Boulter, 16 Jur. 135 ; Roscoe
on Crim. Evid. 686, 687 ; Clark's Execu-
tors i;. Van Reimsdyk, 9 Cranch, 160. It
m ust corroborate him in something more
than some slight particulars. Reg. v.
Yates, 1 Car. & Marsh. 139. More re-
cently, corroborative evidence, in cases
where more than one witness is required
292 LAW OP EVIDENCE. [PART U.
§ 257a. When there are several assignments of perjury in the
same indictment, it does not seem to be clearly settled, whether,
in addition to the testimony of a single witness, there must be
corroborative proof with respect to each ; but, the better opinion
is, that such proof is necessary ; and that too, although all the
perjuries assigned were committed at one time and place.^ For
instance, if a person, on putting in his schedule in the insolvent
debtor's court, or on other the like occasion, has sworn that he
has paid certain creditors, and is then indicted for perjury on
several assignments, each specifying a particular creditor who has
not been paid, a single witness with respect to each debt will not,
it seems, suffice, though it may be very difficult to obtain any
fuller evidence.^
§ 258. The principle that one witness with corroborating cir-
cumstances is sufficient to establish the charge of perjury, leads
to the conclusion that circumstances, without any witness, when
they exist in documentary or written testimony, may combine to
tire same effect ; as they may combine, altogether unaided by oral
proof, except the evidence of their authenticity, to prove any other
fact, connected with the declarations of persons or the business
of human life. The principle is, that circumstances necessarily
make a part of the proofs of human transactions ; that such as
have been reduced to writing, in unequivocal terms, when the
writing has been proved to be authentic, cannot be made more
certain by evidence aliunde; and that such as have not been
reduced to writing, whether they relate to the declarations or
conduct of men, can only be proved by oral testimony. Accord-
ingly, it is now held that a living witness of the corpus delicti may
be dispensed with, and documentary or written evidence be relied
upon to convict of perjury, — first, where the falsehood of the
matter sworn by the prisoner is directly proved by documentary
or written evidence springing from himself, with circumstances
by law, has been defined by Dr. Lushing- ^ E. v. Virrier, 12 A. & E. 317, 324, pei
ton, . to be not merely evidence sliowing Ld. Denman.
that tlie account is probable, but evidence, ^ jj, „ Parker, C. & Marsh. 639, 645-
proving facts ejusdem generis, and tending 647, per Tindal, C. J. In R. v. Mudie,
to produce the same results. Simmons v. 1 M. & Rob. 128, 129, Lord Tenterden,
Simmons, 11 Jur. 830. See further to under similar circumstances, refused to
this point, Reg. v. Parker, C. & Marsh, stop the case, saying that, if the defend-
646 ; Reg. v. Champney, 2 Lewin, 258 ; ant was convicted, he might move for a
Keg. V. Gardiner, 8 C. & P. 737 ; Reg. v. new trial. He was, however, acquitted.
Roberts, 2 Car. & Kir. 614. [See post, See the (London) Law Review, &c.. May,
vol. 3 (4th edit.), § 198.] 1846, p. 128.
CHAP. XIT.] NUMBER OP WITNESSES. 293
showing the corrupt intent ; secondly, in cases where the matter
so sworn is contradicted by a pxiblic record, proved to have been
well known by the prisoner when he took the oath, the oath only
being proved to have been taken ; %ind thirdly, in cases where the
party is charged with taking an oath, contrary to what he must
necessarily have known to be true ; the falsehood being shown
by his own letters relating to the fact sworn to, or by any other
written testimony, existing and being found in his possession, and
which has been treated by him as containing the evidence of the
fact recited in it.^
§ 259. If the evidence adduced in proof of the crime of perjury
consists of two opposing statements of the prisoner, and nothing
more, he cannot be convicted. For if one only was delivered
under oath, it must be presumed, from the solemnity of the sanc-
tion, that that declaration was the truth, and the other an error or
a falsehood ; though the latter, being inconsistent with what he
has sworn, may form important evidence, with other circumstances,
against him. And if both the contradictory statements were
delivered under oath, there is still nothing to show which of them
is false, where no other evidence- of the falsity is given. ^ If, in-
deed, it can be shown that, before giving the testimony on which
perjury is assigned, the accused had been tampered with;^ or, if
there be other circumstances in the case, tending to prove that
the statement offered in evidence against the accused was in fact
true, a legal conviction may be obtained.* And " although the
jury may believe that on the one or the other occasion the prisoner
swore to what was not true, yet it is not a necessary consequence
that he committed perjury. For there are cases in which a person
might very honestly and conscientiously swear to a particular fact,
from the best of his recollection and belief, and from other circura-
i The United States v. "Wood, 14 Pe- combination between them to defraud tlie
tfers, 440, 441. In this case, under the United States, by invoicing and entering
latter head of the rule liere stated, it was the goods shipped at less than tlieir actual
held, that, if tlie jury were satisfied of tlie cost. "
corrupt intent, the prisoner might well be ^ See Alison's Principles of the Crimi-
convicted of perjury, in talcing, at the nal Law of Scqtland, p. 481. Eegina v.
custom-house in New York, the " owner's Huglies, 1 C. & K. 519 ; Eegina v. Wheat-
oath in cases wliere goods, wares, or mer- land, 8 C. & P. ^38 ; Eegina v. Champney,
chandise have been actually purchased," 2 Lew. 258.
upon tlie evidence of tlie invoice-book of ^ Anon. 5 B. & A. 939, 940, note. And
his father, John Wood, of Saddleworth, see 2 Uuss. Cr. & M. 653, note.
England, and of thirty-five letters from * Eex v. KniU, 5 B. & A. 929, 930,
tlie" prisoner to his father, disclosing a note.
25*
294 LAW OF ETIDENCB. [PAET II.
stances subsequently be convinced that he was wrong, and swear
to the reverse, without meaning to swear falsely either time.^
§ 260. The principles above stated, in regard to the proof of
perjury, apply with equal force to«the case of an answer in chancery.
Formerly, when a material fact was directly put in issue by the
answer, the courts of equity followed the maxim of the Roman
law, responsio unius non omnino audiatur, and required tlie evidence
of two witnesses, as the foundation of a decree. But of late years
the rule has been referred more strictly to the equitable principle
on which it is founded, namely, the right to credit which the
defendant may claim, equal to that of any other witness in all
cases where his answer is " positively, clearly, and precisely " re-
sponsive to any matter stated in the bill. For the plaintiff, by
calling on the defendant to answer an allegation which he makes,
thereby admits the answer to be evidence.^ In such case, if the
defendant in express terms negatives the allegations in the biU,
and the bill is supported by the evidence of only a single witness,
affirming what has been so denied, the court will neither make
a decree, nor send the case to be tried at law ; but will simply
dismiss tlie bill.^ But the corroborating testimony of an additional
witness, or of circumstances, may give a turn either way to the
balance. And even the evidence arising from circumstances alone
may be stronger than tlie testimony of any single witness.*
1 Per Holroyd, J., in Jackson's case, 1 his charge by comparing them together,
Lewin's Cr. Cas. 270. Tliis very reason- without distinguisliing which contains the
able doctrine is in perfect accordance with trutli and wliicli the falseliood, would be
the rule of the Criminal Law of Scotland, directly contrary to the precision justly
as laid down by JVIr. Alison, in his lucid required in criminal proceedings. In the
and elegant treatise on that subject, in the older practice this distinction does not
following terms: " Wlien contradictory seem to have been distinctly recognized ;
and inconsistent oaths have been emitted, but it is now justly considered indispen-
the mere contradiction is not decisive evi- sable, that tlie perjury should be specified
dence of the existence of perjury in one existing in one, and the other deposition
or other of them ; but the prosecutor must referred to in modam prohationis, to make
establish wliich was the true one, and out, along with other circumstances, where
libel on the ()i.her as containing the fivlse- the truth really lay." See Ahson's Crira.
hood. Where depositions contradictory Law of Scotland, p. 475.
to c.'icli otiier liave been emitted by the ^ Gresley on Evid. p. 4.
same ihm'sou on the same matter, it may " Cooth v. Jackson, 6 Ves. 40, per Ld.
with certainty be concluded that one or Eldon.
otlior of them is tiilso. But it is not rele- ■* Pember v, Mathers, 1 Bro. Ch. R.
viiiit to infer perjury in so loose a manner ; 52 ; 2 Story on Eq. Jur. § 1528 ; Gresley
but tlie prosecutor must go a step farther, on Evid. p. 4; Clark v. Van Eeimsdyk, 9
and specify di^tinctly wluch of the two Craneh, ItiO; Keys v. Williams, 3 Y. & C.
contains the falsehood, and peril his case 55; Dawson v. Massey, 1 Ball & Beat,
upon tlie means lie possesses of proving 234; Maddox v. Sullivan, 2 Rich. Eq. R.
perjury in that deposition. To admit the 4. Two witnesses are required, in Mis-
opposite course, and allow the prosecutor sonri, to prove the handwriting of a da-
to libel on both depositions, and malce out ceased subscribing witness to adeed; when
CHAP. XIV.]
NUMBER OF WITNESSES.
295
§ 260a. It has also been held, that the testimony of one witness
alone is not sufficient to establish any usage of trade, of which all
dealers in that particular line are bound to take notice, and are
presumed to be informed.^ [*The manner in which the rule is
all the subscribing witnesses are dead, or
cannot be had, and the deed is offered to
a court or magistrate for probate, prepara-
tory to its registration. Rev. Stat. 1835,
p. 121 ; Id. 1845, ch. 32, § 22; infra, § 569,
note. Two witnesses are also required to
a deed of conveyance of real estate, by
the statutes of New Hampshire, Vermont,
Connecticut, Georgia-, Florida, Ohio, Michi-
gan, and Ai-kansas. See 4 Cruise's Digest,
tit. 32, ch. 2, § 77, note, (Greenleaf's
edit.) [2d edit. (1856), vol. 2, p. 341.]
And in Connecticut, it is enacted, that no
person shall be convicted of a capital
crime, without the testimony of two wit
nesses, or what is equivalent thereto.
Eev. Stat. 1840, tit. 6, § 159. [See post,
vol. 3, § 289 and notes. Hinkle v. Wan-
zer, 17 How. U. S. 353 ; Lawton v. Ifit-
tredge, 10 Foster, 500; Ing v. Brown, 8
Md. Ch. Decis. 521; Glen v. Grover,
3 Md. 212 ; Jordan v. Feiino, 8 Eng. 593 ;
Johnson v. McGruder, 15 Mis. 365; Wal-
ton V. Walton, 17 lb. 376 ; White v. Crew,
16 Geo. 416; Calkins o. Evans, 5 Ind.
441.1
1 Wood V. Hiclcock, 2 Wend. 501;
Parrott v. Thacher, 9 Pick. 426 ; Thomas
V. Graves, 1 Const. Rep. 150, [308] ; j'ost,
vol. 2 [7lh edit.], § 252 [and notes.] As
attempts have been made in some recent
instances, to introduce into Ecclesiastical
councils in the United States the old and
absurd rules of the Canon law of England,
foreign as they are to the nature and
genius of American institutions, the fol-
lowing statement of the light in which
those rules are at present regarded in
England will not be unacceptable to the
reader. It is taken from the (London)
Law Review, &c., for May, 1846, pp. 132-
135. " In the Ecclesiastical courts, the
rule requiring a plurality of witnesses is
carried far beyond the verge of common
sense ; and altliough no recent decision of
those courts has, we beUeve, been pro-
nounced, expressly determining that five,
seven, or more witnesses, are essential to
cbnstitute full proof, yet the authority of
Dr. Ayliffe, who states that, according to
the Canon law, this amount of evidence
is required in some matters, has been
very lately cited, with apparent assent, if
not approbation, by the learned Sir Her-
bert Jenner Fust.! Tiie case in support
of wliich the above high authority was
quoted was a suit for divorce.^ In a pre-
vious action for criminal conversation, a
special jury had given i£500 damages to
the husband, who, witli a female servant,^
had found his wife and the adulterer to-
gether in bed. This last fact was deposed
to by the servant; but as she was the
only witness called to prove it, and as
her testimony was uncorroborated, the
learned judge did not feel himself at lib-
erty to grant the promoter's prayer. This
doctrine, that the testimony of a single
witness, though omni exceptione major, is
insufficient to support a decree in the
1 Evans v. Evans, 1 Roberts, Ecc. R.
171. The passage cited from Aylifle,
Par. 444, is as follows : " I'uU proof is
made by two or three witnesses at the
leaot. For there are some matters which,
according to the Canon law, do require
five, seven, or more witnesses, to make
full proof." The same learned commen-
tator, a Uttle fiirther on, after explaining,
that " lirpiid proof is that which appears to
the judge from tlie act of court, since that
cannot be properly said to be manifest or no-
torious ; " at-lils, — *' By the Canon law, a Jew
Is not achnittcd to give evidence against a
Christiiui, especialli] if he be a clergyman, for
by that lam tlie proofs against a derggman
ouf/hi to be much dearer than against a lag-
man." Par. 448. Dr. Ayliife does not
ni«;ntion wliat matters require this super-
abundant proof, but we have already /aid
(vol. 1, p. 380, n.), that in the case of a
cardinal charged with incontinence, the
probntio, in order to be plena, must be
established by no less than seven ege-viit-
nesses; so improbable does it appear to
the Clmrch tliat one of her highest digni-
taries should be guilty of such an oflfi3i]ce,
and so an.xious is slie to avoid all possibil-
ity of judicial scandaL This is adopting
■ with a vengeance the principles of David
Hume with respect to miracles.
2 Evans v. Evans, 1 Roberts, Ecc. R.
165.
^ The fact that the witness was a wom-
an, does not seem to have formed an
element in the judgment of the court,
though Dr. Ayliffe assures his readers,
with becoming gravity, that, " by the
Canon law, more credit is given to male
than to female witnesses." Par. 545
296
LAW OP EVIDENOE.
[part n
here stated by the learned and critical author may be liable to
possible misconstruction. The point embraced in the proposition
ecclesiastical courts, when such testi-
mony stands unsupported by adminicular
circumstances, has been frequently pro-
pounded by Lord Stowell, both in suits
for divorce,! for defamation,^ and for
brawling ; ^ and before the new Will Act
was passed,* Sir John Nicholl disregarded
similar evidence, as not amounting to
legal proof of a testamentary act.^ In
the case too, of Mackenzie v. Yeo,'' when
a codicil was propounded, purporting to
have been duly executed, and was de-
posed to by one attesting witness only,
the other having married the legatee. Sir
Herbert Jenner Fust refused to grant pro-
bate, though he admitted the witness was
unexceptionable, on the ground that his
testimony was not confirmed by adminic-
ular circumstances, and that the proba-
bilities of the case inclined agajnst the
factum of such an instrument.' In an-
other case, however, the same learned
judge admitted a paper to probate on the
testimony of one attesting witness, who
had been examined a few days after the
death of the testator, though Ahe other
witness, whose deposition had not been
taken till two years and a half afterwards,
declared that the will was not signed in
Ills presence. In this case there was a
formal attestation clause, and that fact
was regarded by the court as favoring the
supposition of a due execution. Though
the cases cited above certainly establish
beyond dispute, that, by the Canon law,
as recognized in our spiritual courts, one
uncorroborated witness is insufficient, they
as certainly decide, that, in ordinary cases
at least, two or more witnesses need not
depose to the principal fact; but that it
will suffice if one be called to swear to
such fact, and the other or others speak
merely to confirmatory circumstances.
Nay, it would seem, from some expres-
sions used, that, as in cases of perjury,
documentary or written testimony, or the
statements or conduct of the party li-
belled, may supply the place of a second
witness.' If, indeed, proceedings be in-
stituted under the provisions of some
statute, which expressly enacts that the
offence shall be proved by two lawful wit-
nesses, as, for instance, the Act of 5 & 6
Edw. VI. c. 4, which relates to brawling in
a church or churchyard, the court might
feel some delicacy about presuming that
such an enactment would be satisfied, by
calling one witness to the fact, and one to
the circumstances.' It seems that tliis
rule of the canonists depends less on the
authority of the civilians than on the Mo-
saic code, which enacts, that one witness
shall not rise up against a man for any
iniquity ; but at the mouth of two or three
witnesses shall the matter be established.!"
Indeed, the decretal of Pope Gregory the
! Donnellan u. Donnellan, 2 Hagg.
144. (Supph)
2 Crompton v. Butler, 1 Cons. R. 460.
3 Hutchius V. Denzdoe, 1 Cons. R.
181, 182.
4 7 W. IV. and 1 Vict. c. 26, which, by
§ 34, applies to wills made after the 1st of
January, 1833.
'' Tlieakston u. Marson, 4 Hagg. 313,
314.
6 3 Curteis, 125.
' Gove V. Gawen, 3 Curteis, 151.
* In Kcndrick v. Kendrick, 4 Hagg.
114, the testimony of a single witness to
idultery being corroborated by evidence
of the misconduct of the wife, was held to.
be sufficient. Sir John Nicholl distinctly
stating, " that there need not be two wit-
nesses ; one witness and circumstances in
corroboration are all that the law in tliese
cases requires," pp. 136, 137, and Dr.
Lushington even admitting, that " he was
not prepared to say that one clear and un-
Impeaclied witness was insufficient," p.
130. See also 3 Burn. Eccl. L. 304.
° Hutchins v. DenzUoe, 1 Cons. R.
182, per Lord Stowell.
1" Deut. c. 19, V. 15; Deut. c. 17, v. 6;
Numbers, c. 35, v. 30. [The rule of the
Jewish law, above cited, is expressly ap-
plied to crimes only, and extends to all
persons, lay as well as ecclesiastical. K
it was designed to have any force beyond
the Jewish theocracy or nation, it must,
of course, be the paramount law of the
criminal code of all Christian nations, at
this day, and for ever. St. Paul makes
merely a passing allusion to it, in refer-
ence to the third time of his coming to
• the Corinthians ; not as an existing rule
of their law; and much less with any
view of imposing on them the municipal
•regulations of Moses. The Mosaic law,
' except those portions which are purely
moral and universal in their nature, such
as the ten commandments, was never to
be enforced on any converts from lieathen-
ism. See Acts, ch. 15; Galatians, ch. 2,
V. 11-14. Of course, it is not binding on
us. Our Saviour, in Matt. ch. 18, v. 16,
CHAP. XIV.]
NUMBER OP WITNESSES,
297
is, that ■where one witness only testifies to the existence of such
usage, and others deny all knowledge of its existence with equal
means of knowledge, it cannot be regarded as sufficiently estab-
lished. So also if the usage be improbable in itself, and only one
witness be examined in its support, where others might easily
have been called, it will not be considered as well established.
But there is nothing, in a usage of trade, or a general custom,
requiring proof from more than one witness, unless there is
some ground of implying doubt of the accuracy of the knowl-
edge, or of the disinterestedness of the witness, more than in any
other case. More than one witness will naturally be called
in such cases, where there is any controversy upon the point,
and where others are accessible. But we are not aware of any
different measui-e of proof here from that which exists in all
cases.]
§ 261. There are also certain sales, for the proof of which the
law requires a deed, or other written document. Thus, by the
Ninth, which enforces tlie observance of
this doctrine,! expressly cites St. Paul as
an authority, wliere lie tells the Corinthi-
ans that ' in ore duorum vel triutn testium
Stat omne verbum.' ^ Now, however well
suited this rule might have been to the
peculiar circumstances of the Jewish na-
tion, who, like the Hindus of old, the
modern Greeks, and other enslaved and
oppressed peoi)le, entertained no very ex-
alted notions on the subject of truth ; and
who, on one most remarkable occasion,
gave conclusive proof that even the neces-
sity of calling two witnesses was no valid
protection against the crime of perjury ; 3
— it may well be doubted whetlier, in the
present civilized age, such a doctrine, in-
stead of a protection, has not become an
impediment to justice, and whether, as
such, it should not be abrogated. That
tills was the opinion of the common-law
judges in far earlier times than the pres-
ent, is apparent from several old deci-
sions, which restrict the rule to causes of
merely spiritual conusance, and determine
that all temporal matters, which incident-
ally arise before the Ecclesiastical courts,
may, and indeed must, be proved there
as elsewhere, by such evidence as the
common law would allow."* See also
Best's Principles of Evidence, § 3'J0-394 ;
Wills on Circumst. Evid. p. 23 ; 2 H. Bl.
101; 2 Inst, 608.
17, directs that, in a case of private differ-
ence between Cliristian brethren, the in-
jured party shall go to tlie oflender, taking
with him " one or two more," wh9 are, in
the first instance, to act as arbitrators and
peacemakers ; not as witnesses ; for they
are not necessarily supposed to have any
previous knowledge of the case. After-
wards tliese may be called as witnesses
before the Church, to testify vvliat took
place on that occasion ; and their number
will satisfy any rule, even of the Jewisli
Church, respecting tlie number of wit-
nesses. But if this passage is to be taken
at. an indication of the number of wit-
nesses, or quantity of oral proof to be
required, it cannot be extended beyond
the case for which it is proscriiicd; name-
ly, the case of a private and j.crsonal
wrong, prosecuted before the Cliurch, in
the way of ecclesiastical discipline, and
this only where the already ccistiiig rule
requires more than one witness, ti.]
1 Dec. Greg. lib. 2, tit. 20, c. 28.
2 2 Cor. c. 13, V. 1.
8 St. Matlhew, c. 26, v. 60, 61.
' Kich.ardson !•. ])i«borow, 1 Vent. 2^1;
Shotter V, Friend, 2 Salk. 5 17 ; Bi eedon
V. Gill, Ld. Kaym. 221. See funiicr, 3
Burn. Eccl. L. 304-308.
298 LAW OF EVIDENCE. [PART H,
statutes of the United States,^ and of Great Britain,^ the grand
hill of sale is made essential to the complete transfer of any ship
or vessel; though, as between the parties themselves, a title may
he acquired by the vendee without such document. Whether this
documentary evidence is required by the law of nations or not,
is not perfectly settled; hut the weight of opinion is clearly on
the side of its necessity, and that without thiS, and the other usual
documents, no national character is attached to the vessel.^
§ 262. Written evidence is also required of the several trans-
actions mentioned in the Statute of Frauds, passed in the reign
of Cliarles II., the provisions of which have been enacted, gener-
ally in the same words, in nearly all of the United States.* The
rules of evidence contained in this celebrated statute are calculated
for the exclusion of perjury, by requiring, in the cases therein
mentioned, some more satisfactory and convincing testimony than
mere' oral evidence affords. The statute dispenses with no proof
of consideration which was previously required, and gives no
efficacy to written contracts which they did not previously possess.^
Its policy is to impose such requisites upon private transfers of
property, as, without being hinderances to fair transactions, may
»e either totally inconsistent with dishonest projects, or tend to
multiply the chances of detection.® The object of the present
work will not admit of an extended consideration of the provisions
of this statute ; but will necessarily restrict us to a brief notice of
the rules of evidence which it has introduced.
'' United States Navigation Act of 1792, sales of immovable property or slaves
ch. 45, § 14 ; Stat. 1793, ch. 52 ; [Stat, shall be void. 4 Kent, Comra. 450, note
1793, cli. 1; lb. eh. 8, vol. 1, U. S. Stat- (a), (4th edit.) [For the general provi-
utes at Large (Little & Brown's edit.), sions of the existing English statntes, and
page 294, and page 305] ; Abbott on Ship- of the statutes of all the United States
ping, by Story, p. 45, n. (2) ; 3 Kent, except Louisiana, and excepting Kansas
Comm. 143, 149. [See also Stat. 1850, and Minnesota, admitted into the Union
ch. 27, 9 U. S. Statutes at Large (L. & since the publication of his volume, see
B.'s edit.), 440.1 Browne on Stat, of Frauds, Appendix, pp.
2 Stat. 6 Geo. IV. c. 109; 4 Geo. IV. 501-532.1
c. 48 ; 3 & 4 W. IV. c. 55, § 31 ; Abbott ^ 2 Stark. Evid. 341.
on Shipping, by Shee, pp. 47-52. ^ Roberts on Frauds, Pref. xxii. This
3 Abbott on Shipping, by Story, p. 1, statute introduced no new principle into
n. (1,) and cases there cited; Id. p. 27, n. the law; it was new in England only in
(1); Id. p. 45, n. (2); Old v. The Eagle the mode of proof which it required. Some
Ins. Co. 4 Mason, 172; Jacobsen's Sea protective regulations, of the same nature.
Laws, b. 1, ch. 2, p. 17; [3 Kent, Comm. may be found in the early codes of most
130.] of the Northern nations, as well as in the
* 29 Car. 2, c. 8 ; 4 Kent, Comm. 95, laws of the Anglo-Saxon princes ; the pre-
and note (b), (4th edit.) The Civil Code vention of frauds and perjuries being
of Louisiana, art. 2415, without adopting sought, agreeably to the simplicity of
in terms the provisions of the Statute of those unlettered times, by requiring a cer-
Frauds, declares generally that all verbal tain number of witnesses to a valid sale,
CHAP. ZIV.]
STATUTE OF FRAUDS.
299
§ 263. By this statute, the necessity of some writing is uni-
versally required, upon all conveyances of lands, or interest in lands,
for more than three years ; all interests, whether of freehold or
less than freehold, certain or uncertain, created by parol without
writing, being allowed only the force and effect of estates at will ;
and soraelimes by restricting such sales
to particular places. In the Anglo-Saxon
laws, such regulations were quite f'a-
miUar; and the Statute of i'rauds was
merely the revival of obsolete provisions,
demanded by the circumstances of the
times, and adapted, in a new mode of
proof, to the improved condition and hab-
its of the trading community. By the
laws of Lotharius and Edric, kings of
Kent, § 16, if a Kentish man purchased
any thing in London, it must be done in
the presence of two or three good ciuzens,
or of the mayor of the city. (Canciani,
Leges Barbiirorum Antiquic, vol. 4, p.
231.) The laws of King Edward the
Elder (De jure et lite, § 1) required the
testimony of the mayor, or some other
credible person to every sale, and prohib-
ited all sales out of the city. (Cancian.
ub. sup. p. 256.) liing Athelstan prohib-
ited sales in the country, above the value
of twenty pence ; and, for those in the
city, he inquired tlie same formalities
as in tlie laws of Edward. (Id. pp. 261,
262, LL. Athelstani, § 12.) By the laws
of liing Ethelred, every freeman was re-
quired to have his surety (fidejussor),
without whom, as well as other evidence,
there could be no valid sale or barter.
" Nullus homo faciat alterutrum, nee
emat, nee permutet, nisi fidejussorem
habeat, et testimonium." (Id. p. 287, LL.
Ethelredi, §§ 1, 4.) In the Concilium
Seculare of Canute, § 22, it was provided,
that there should be no sale, above the
value of four pence, whether in the city or
country, without the presence of four wit-
nesses. (Id. p. 305.) The same rule, in
nearly the same words, was enacted by
WiUiam the Conqueror. (Id. p. 357, LL.
Gull. Conq. § 43.) Afterwards, in the
Charter of the Conqueror (§ 60), no cat-
tle (" nuUa viva pecunia," sell, aiiiraalia)
could be legally sold, unless in the cities,
and in the presence of three witnesses.
(Cancian. ub. sup. p. 360, Leges Anglo-
Saxonicse, p. 198 (o). Among the an-
cient Sueones and Goths, no sale was
originaUy permitted but in the presence
of witnesses, and (per mediatores) through
the medium of brokers. The witnesses
were required in 'order to preserve the
evidence of the sale ; and the brokers, or
mediators (ut pretium moderarentur), to
prevent extortion, and to see to the title.
But these formalities were afterwards dis-
pensed with, except in the sale of articles
of value (res pretiosie), or of great amount.
(Cancian. ub. sup. p. 231, n. 4.) Aliena-
tions of lands were made only (pubUcis
Uteris) by documents legally authenti-
cated. By the Danish law, lands in the
city or country might be exchanged with-
out judicial appraisement (per tabulas
manu signoque permutantis afiixas), by
deed, under the hand and seal of the
party. (Id. p. 261, n. 4.) The Eoman
law required written evidence in a great
variety of cases, embracing, among many
others, all those mentioned in tUe Statute
of Prauds ; which are enumerated by N.
De Lescut, De Exam. Testium, Cap. 26.
(Earinac. Oper. Tom. 2, App. 243.) See
also Brederodii Eepertorium Juris, col.
984, vei-h. Scriptura. Similar provisions,
exteiidiug in some cases even to the proof
of payment of debts, wore enacted in the
statutes of Bologna (A. D. 1454), Milan
(1498), and Naples, which are prefixed to
Dauty's Traite' de la Preuve, par Temoins.
By a Perpetual Edict in the Archduchy
of Planders (A. D. 1611), all sales, testa-
ments, and contracts whatever, above the
value of tliree hundred livres Artuis, were
required to be in writing. And in Prance,
by the Ordonnance de Moulins (A. D.
1566), confirmed by that of 1667, parol or
verbal evidence was excluded in all cases,
where the subject-matter exceeded the
value of one hundred livres. !~lcc Danty,
de la Preuve, &c., passim; 7 I'oth. (Eu-
vres, &o., 4to, p. 56 ; Traite de la I'rocc'd.
Civ. ch. 3, art. 4, Eegle 3me. ; 1 Poth. on
Obi. part 4, ch. 2, arts. 1, 2, 3, 5 ; Com-
niercial Code of France, art. lO'.l. The
dales of these regulations, and of tlie Stat-
ute of Frauds, and the countries in wliich
they were adopted, are strikingly indic-
ative of the revival and jirogicss of com-
merce. Among the Jews, 1,-inils -were
conveyed by deed only, from a very early
period, as is evident from the triiiisaution
mentioned in Jer. xxxii. 10, 11, 12; where
the principal document was " sealed ac-
cording to the law and custom," in the
presence of witnesses; and anollior writ-
ing, or " open evidence," was also taken,
probably, as Sir John Chardin thought,
for connnon use, as is the manner in the
East at tills day.
300 LAW OP EVIDENCB. [PART H.
excppt leases, not exceeding the term of three years from the
maldng thereof, whereon the rent reserved shall amount to two-
thirds of the improved value. The term of three years, for which
a parol lease may be good, must be only three years from the
making of it ; but if it is to commence in futuro, yet if the term
is not for more than three years it will be good. And if a parol
lease is made to hold from year to year, during the pleasure of
the parties, this is adjudged to be a lease only for one year certain,
and that every year after it is a new springing interest, arising
upon the first contract, and parcel of it ; so that if the tenant
should occupy ten years, still it is prospectively but a lease for
a year certain, and therefore good, within the exception of the
statute ; though as to the time past it is considered as one entire
and valid lease for so many years as the tenant has enjoyed it.i
But though a parol lease for a longer period than the statute
permits is void for the excess, and may have only the effect of
a lease for a year, yet it may still have an operation, so far as its
terms apply to a tenancy for a year. If, therefore, there be
a parol lease for seven years for a specified rent, and to commence
and end on certain days expressly named ; though this is void as
to duration of the lease, yet it must regulate all the other terms
of the tenancy.^
§ 264. By the same statute, no leases, estates, or interests,
either of freehold or terms of years, or an uncertain interest,
other than copyhold or customary interests in lands, tenements,
or hereditaments, can be assigned, granted, or surrendered, unless
by deed or writing, signed by the party, or his agent authorized by
writing,^ or by operation of law. At comnion law, surrenders of
estates for life or years in things corporeal were good, if made by
parol ; but things incorporeal, lying in grant, coixld neither be
created nor surrendered but by deed.* The effect of this statute
is not to dispense with any evidence required by the common law,
but to add to its provisions somewhat of security, by requiring
a now and more permanent species of testimony. Wherever,
1 Roberts on Fraufls, pp. 241-2-14 ; parol, in order to mate a binding contract
[Browne on Stsit. ot' Frauds, §1-40.] of sale, provided the contract "itself be
^ Doe r. Bell, 5 T. li. 471 ; [Browne made in writing; but Ids autliorily to col-
on StMt. ol Frauds, § 39.] vei/ must be by deed. Story on Agency,
3 III the statutes of some of tlie United § 50; Alna v. Pluraraor, 4 Cireenl. 258.
States, the words " authorized by writ- ■• Co. Lit. 337 b, 333 a ; 2 Shep
ing " are omitted ; in wliicli case it is suf- Touclist. (by Preston), p. 300.
ficient tliat the agent be authorized by
CHAP. XIV.J STATUTE OP FRAUDS. 301
therefore, at common law a deed was necessary, the same solem-
nity is still requisite ; but with respect to lands and tenements in
possession, which before the statute might have been surrendered
by parol, that is, by words only, some note in writing is now made
essential to a valid surrender.^
§ 265. As to the effect of the cancellation of a deed to devest the
estate, operating in the nature of a surrender, a distinction is
taken between things lying in livery, and those which lie only in
grant. In the latter case, the subject being incorporeal, and
owing its very existence to the deed, it appears that at common
law the destruction of the deed by the party, with intent to defeat
the interest taken under it, will have that effect. Without
such intent, it will be merely a case of casual spoliation. But
where the thing lies in livery and manual occupation, the deed
being at common law, only the authentication of the transfer, and
not the operative act of conveying the property, the cancellation
of the instrument will not involve the destruction of the interest
conveyed.^ It has been thought, that since writing is now by the
statute made essential to certain leases of hereditaments lying in
livery, the destruction of the lease woiild necessarily draw after
it the loss of the interest itself^ But the better opinion seems to
be, that it will not ; because the intent of the statute is to take
away the mode of transferring interests in lands by symbols and
vrords alone, as formerly used, and therefore a surrender by can-
cellation, which is but a sign, is also taken away at law ; though
a symbolical surrender may still be recognized in chancery as the
basis of relief.* The surrender in law, mentioned in the statute,
is where a tenant accepts from his lessor a new interest, incon-
1 Roberts on Frauds, p. 248 ; [Browne of the United States, where the owner oT
on Statute of Frauds, § 41-57.] lands which he holds by an unregisterea
^ Koberts on Frauds, pp. 248, 249 ; deed, is about to sell his estate to a strau-
Bolton V. Bp. of Carlisle, 2 H. Bl. 263, ger, it is not unusual for him to surrender
264; Doe v. Bingham, 4 B. & A. 672; his deed to his grantor, to be cancelled,
Holbrook v. Tirrell, 9 Pick. 105 ; Bots- the original grantor thereupon making a
ford V. Morehouse, 4 Conn. 550; Gilbert new deed to the new purchaser. This
V. Bulkley, 5 Conn. 262 ; Jackson v. Chase, redelivery is allowed to have the practical
2 Johns. 86. See infra, § 568. effect of a surrender, or reconveyance of
^ 4 Bac. Abr. 218, tit. Leases and the estate, the first grantee and tliose
Terms from Years, T. claiming under him not being permitted
* Roberts on Frauds, pp. 251, 252; to give parol evidence of the contents of
Magennis v. McCuUogh, Gilb. Eq. R. the deed, thus surrendered and destroyed
235; Natchbolt v. Porter, 2 Vern. 112; 4 with his consent, with a view of passing a
Kent, Comm. 104; 4 Cruise's Dig. p. 85 legal title to his own alienee. Farrar v
(Greenleaf's edit.), tit. 32, ch. 7, §§ 5, 6, 7 ; Farrar, 4 N. Hamp. 191 : Commonwealth
[2d edit. (1806) vol. 2, p. 413 et seq. ;] Roe v. Dudley, 10 Mass. 403 ; Holbrook v. Tir-
V Archb. of York, 6 East, 86. In several rell, 9 Pick. 105 ; Barrett v. Thorndike,
VOL. 1 26
302 LAW OP EVIDENCE. [PAET II.
sistent with that which he previously had ; in wKich case a sur-
render of his former interest is presumed. ^
§ 266. This statute further requires that tlie declaration or
creation of trusts of lands shall be manifested and proved only by
some writing, signed by the party creating the trust; and all
grants and assignments of any such trust or confidence, are also
£0 be in writing, and signed in the same manner. It is to be
observed, that the same statute does not require that the trust
itself be created by writing ; but only that it be manifested and
proved by writing ; plainly meaning that there should be evidence
in writing, proving that there was a trust, and what the trust was.
A letter acknowledging the trust, and, d fortiori, an admission,
in an answer in chancery, lias therefore been deemed sufficient
to satisfy the statute.^ Resulting trusts, or those which arise by
implication of law, are specially excepted from the operation of
the statute. Trusts of this sort are said by Lord Hardwicke to
arise in three cases : first, where the estate is purchased in the
name of one person, but the money paid for it is the property of
another ; secondly, where a conveyance is made in trust, declared
only as to part, and the residue remains undisposed of, nothing
being declared respecting it ; and, thirdly, in certain cases of
fraud. ^ Other divisions have been suggested ; * but they all seem
to be reducible to these three heads. In all these cases, it seems
now to be generally conceded that parol evidence, though received
with great caution, is admissible to establish the collateral facts,
(not contradictory to the deed, unless in the case of fraud,) from
which a trust may legally result ; and that it makes no difference
1 Greenl. 78. See 4 Cruise's Dig. tit. 32, tion, but for the undertaking of the per-
c. 1, § 15, note (Grcenloaf's edit.), [2d son whom lie trusted, or else it must bo
edit. (1856) vol. 2, p. 300.] shown to be an attempt to create an ille-
1 Roberts on Frauds, pp. 259, 260; gal trust. Gresley on Evid. in Kquity,
[Browne on Stat, of Frauds, §§ 44, 59, p. 108 [292] ; Strode o. AVinclioster, 1
60.] ])iek. 397. See White & Tudor's Lead-
- Forster v. Hale, 3 Ves. G96, 707, per ing Cases in Equity, vol. 2, part 1, p. 591 ;
Ld. Alvanley ; 4 Kent, Comm. 305; Hob- |l3r()wne on Stat, of Frauds, § 97 et seq.;
erts on Frauds, p. 95; 1 Cruise's Dig. Dean v. Dean, 1 Stockton, 44. In Con-
(by Greenleaf) tit. 12, ch. I, §§ 36, 37, p. necticut, it has been held that where a
390; [2d edit. (1856) vol.1, p. 369;] Lewin husband conveyed land to his fiitlier,
on Trusts, p. 30. Courts of equity will without consideration, but under a p.irol
receive parol evidence, not only to e.x- agreement that the father should convey
plain an imperfect declaration of a tes- it to the wife of the son, parol evidence
tator's intentions of trust, but even to add was admissible to establish the trust in
conditions of trust to what appears a sini- favor of the wife. Hayden v Dcnslow,
pie devise or bequest. But it must either 27 Conn. 336.]
be fairly presumable, that the testator '^ Lloyd t'. Spillet, 2 Atk. 148, 150.
would have made the requisite declara- * 1 Lomax's Digest, p. 200.
CHAP. XIV.] STATUTE OP FEATJDS. 303
as to its admissibility -whether the supposed purchaser be living
or dead.^
§ 267. "Written evidence, signed by the party to be charged
therewith, or by his agent, is by the same statute required in
every case of contract by an executor or administrator, to answer
damages out of his own estate ; every promise of one person to
answer for the debt, default, or miscarriage of another ; every
agreement made in consideration of marriage ; or which is not to
be performed within a year from the time of making it ; and every
contract for the sale of lands, tenements, or hereditaments, or any
interest in or concerning them. The like evidence is also required
in every case of contract for the sale of goods, for the price of £10
sterling or upwards,^ unless the buyer shall receive part of the
goods at time of sale, or give something in earnest, to bind the
bargain, or in part payment.^
§ 268. It is not necessary that the written evidence required
by the Statute of Frauds should be comprised in a single docu-
ment, nor that it should be drawn up in any particular form. It
is sufficient, if the contract can be plainly made out, in all its
terms, from any writings of the party, or even from his correspond-
ence. But it must all be collected from the writings ; verbal testi-
mony not being admissible to supply any defects or omissions in
the written evidence.* For the policy of the law is to prevent
I 3 Sugden on Vendors, 256-260 (10th parties for a trust. Moore v. Moore, 38
edit.) ; 2 Story, Eq. Jurisp. § 1201, note; N. Hamp. 882.]
Ijeneli v. Lencli, 10 Ves. 517 ; Boyd v. '■^ The sum here required is different
McLean, 1 Jolins. Ch. R, 582 ; 4 Kent, in tlie several states of the Union, vary-
Comm. 305; Pritehard v. Brown, 4 N. ing fi-om thirty to fifty dollars. [See
Hamp. 397. See also an article in 3 Law Browne on Stat, of Frauds, Appendix, pp.
Mag. p. 131, where the English cases on 503-532.] But the rule is every where the
this subject are reviewed. The American same. By the statute of 9 Geo. IV. c.
decisions are collected in Mr. Hand's note 14, this provision of the Statute of Frauds
to the case of Goodwin v. Hubbard, 15 is extended to contracts executory, for
Mass. 218. In Massachnsetls, there are goods to be manufactured at a future day,
diriii apparently to the eflect, that parol or otlierwise not in a state fit for deliv-
evideiice is not admissible in these cases ; ery at the time of making the contract,
but tlic point does not seem to have been Shares in a joint-stock company, or a pro-
directly in judgment, unless it is involved jected railway, are held not to be goods
in the decision in BuUard v. Briggs, 7 or chattels, within the meaning of the
Pick. 533, where parol evidence was ad- statute. Humble v. Mitchell, 11 Ad. &
milled. See Storer v. Batson, 8 Mass. El. 205; Tempest k. Kilner, 3 M. G. & S.
431, 442; Northampton Bank v. Whiting, 251; Bowlby v. Bell, Id. 284.
12 .Mass. 104, 109; Goodwin v. Hubbard, ^ 2 Kent, Comm. 493, 494, 495.
15 Mass. 210, 217. [In New Hampshire, ^ Boydell v. Drummond, 11 East, 142 ;
parol evidence is admissible to estabhsh Chitty on Contracts, pp. 314-316 C4th Am.
a iiict from wliich the law will raise edit.); 2 Kent, Comm. 511; Roberts on
jr imply a trust, but not to prove any Frauds, p. 121; Tawney v. Crowther, 3
declaration of trust or agreement of the Bro. Ch. Rep. 161, 318; 4 Cruise's Dig
804
LAW OP EVIDENCE,
[part II.
fraud and perjury, by taking all the enumerated transactions
entirely out of the reach of any verbal testimony whatever. Nor
is the place of signature material. It is sufficient if the vendor's
name be printed, in a bill of parcels, provided the vendee's name
and the rest of the bill are written by the vendor.^ Even his
signature, as a witness to a deed, which contained a recital of thn
agreement, has been held sufficient, if it appears that in fact he
knew of the recital.^ Neither is it necessary that the agreement
or memorandum be signed hy loth parties, or that botli be legally
bound to the performance ; for the statute only requires that it be
signed " by the party to be charged therewith," that is, by the
defendant against whom the performance or damages are de-
manded.^
§ 269. Where the act is done ly procuration, it is not necessary
tliat the agent's authority should be in writing; except in those
cases where, as in the first section of the statute of 29 Car. II, c.
3, it is so expressly required. These excepted cases are under-
(by Greenleaf), pp. 33, 35, 36, 37, tit. 32,
c. 3, §§ 3, 16-26 [Greenleaf's 2d edit.
(1866) vol. 2, pp. 344-351 and notes] ;
Cooper V. Smitli, 15 East, 103 ; Parklmrst
V. Van Cortlandt, 1 Johns. Cii. E. 280,
281, 282; Abeel v. Radcliff, 13 Johns. 297;
Smith V. Arnold, 5 Mason, 414; Ide v.
Stanton, 15 Venn. 685; Sherburne v.
Shaw, 1 N. Hamp. 157 ; Adams v. Mc-
Millan, 7 Port. 73 ; Gale v. Nixon, 6 Cow-
en, 445 ; Meadows v. Meadows, 3 McCord,
458; Nichols v. Johnson, 10 Conn. 192.'
Whether the Statute of Frauds, in requir-
ing that, in certain cases, the " agree-
ment" be proved by writing, requires
that the " consideration " should be ex-
pressed in the writing, as part of the
agreement, is a point which has been
much discussed, and upon which the Eng-
lish and some American cases are in di-
rect opposition. The English courts hold
the affirmative. See Wain v. Warlters,
5 Bast, 10; reviewed and confirmed in
Saunders v. Wakefield, 4 B. & Aid. 595 ;
and their construction has been followed
in New York, Sears v. Brink, 3 Johns.
210 ; Leonard v. Vredenburg, 8 Johns. 29.
In New Hampshire, in Keelson v. San-
borne, 2 N. Hamp. 413, the same con-
struction seems to be recognized and ap-
proved. But in Massachusetts, it was
rejected by the whole court, upon great
consideration, in Packard v. Richardson,
17 Mass. 122. So in Maine, Levy v. Mer-
rill, 4 Greenl. 180; in Cinnecticut, Sage v.
Wilcox, 6 Conn. 81 ; in New Jersey, Buck-
ley V. Beardsley, 2 South. 570; and in
North Carolina, Miller v. Irvine, 1 Dev.
& Batt. 103; and now in South Carolina,
Fyler v, Givens, Eiley's Law Cas. pp. 56,
62, overruling Stephens v. Winn, 2 N. &
McC. 372, n. ; Woodward v. Pickett, Dud-
ley's So. Car. Eep. p. 30. See also Vio-
let'r. Patton, 5 Cranch, 142; Taylor v.
Eoss, 3 Yerg. 380; 3 Kent, Comm. 122;
2 Stark. Evid. 350 (6th Am. edit.).
1 Saunderson v. Jackson, 2 13. & P.
238, as explained in Champion v. Plura-
mer, 1 New Eep. 254 ; Roberts on Frauds,
pp. 124, 125; I'enniman v. Hartshorn, 13
Mass. 87.
2 Welford v. Beezely, 1 Ves. 6 ; 1 Wils.
118, s. c. The same rule, with its quali-
fication, is recognized in the Eoman law,
as applicable to all subscribing witnesses,
except those whose official duty obliges
them to subscribe, such as notaries, &o
Menochius, De Praesump. lib. 3 ; Pras-
sump. 66, per tot.
" Allen i\ Bennett, 3 Taunt. 169 ; 3
Kent, Comm. 510, and cases there cited ;
Shirley v. Shirley, 7 Blackf. 452; Davis
V. Shields, 26 Wend. 341; Douglass v.
Spears, 2 N. & McC. 207. [ * The New-
York statute seems to require a contract
for the sale of goods above the value of
fifty dollars to be signed by both parties.
Dykers v. Townsend, 24 N. Y. Ct. App.
57. But the verbal directions of the party,
sent by telegraph, accepting a proposition,
will amount to signing within the statute.
Dunning v. Roberts, 85 Barb. 468.]
CHAP. XIT.J STATUTE OP FRAUDS. 306
stood to be those of an actual conveyance, not of a contract to
convey ; and it is accordingly held, that though the agent to make
a deed must be authorized by deed, yet the agent to enter into an
agreement to convey is sufficiently authorized by parol only.^ An
auctioneer is regarded as the agent of both parties, whether the
subject of the sale be lands or goods ; and if the whole contract
can be made out from the memorandum and entries signed by
him, it is sufficient to bind them both.^
§ 270. The word lands, in this statute, has been expounded to
include every claim of a permanent right to hold the lands of
another, for a particular purpose, and to enter upon them at all
times, without his consent. It has accordingly been held, that
a right to enter upoii the lands of another, for the purpose of
erecting and keeping in repair a mill-dam embankment, and canal,
to raise water for working a mill, is an interest in land, and
cannot, pass but by deed or writing.^ But where the interest is
vested in a corporation, and not in the individual corporators, the
shares of the latter in the stock of the corporation are deemed
personal estate.*
§ 271. The main difficulties under this head have arisen in the
application of the principle to cases, where the subject of the con-
tract is trees, growing crops, or other things annexed to the freehold.
It is well settled that a contract for the sale of fruits of the earth,
ripe, but not yet gathered, is not a contract for any interest in
lands, and so not within the Statute of Frauds, though the vendee
is to enter and gather them.^ And subsequently it has been held,
that a contract for the sale of a crop of potatoes was essentially the
same, whethe'r they were covered with earth in a field, or were
stored in a box ; in either case, the subject-matter of the sale,
1 Story on Agenoy,,§ 50; Colea u. Tre- Agency, § 27, and cases there cited;
cothick, 9 Ves. 250 ; Clinan v. Cooke, 1 Cleaves v. Foss, 4 Greenl. 1 ; Koberts on
Sch. & Lef. 22 ; Koberts on Frauds, p. Frauds, pp. 113, 114, note (56) ; 2 Stark.
113, n. (54) ; [Browne on Stat, of Frauds, Evid. 352 (6th Am. edit.) ; Davis v. Rob-
§ 355-366.] If an agent, having only a ertson, 1 Rep. Const. C. 71; Adams v.
verbal authority, should execute a bond McMillan, 7 Port. 73 ; 4 Cruise's Dig. tit
in the name of his principal, and after- 32, ch. 3, § 7, note (Greenleaf's edit.),
wards he be regularly constituted by letter r2d edit. (1856) vol. 2, p. 346 ; Browne on
of attorney, bearing date prior to that of Stat, of Frauds, §§ 347, 869.]
the deed ; this is a subsequent ratification, ^ Cook v. Stearns, 11 Mass. 533 ;
operating by estoppel against the princi- [Browne on Stat, of Frauds, § 227-262.]
pal, and rendering the bond valid in law. * Bligh v. Brent, 2 Y. & Col. 268, 295,
Milliken v. Coombs, 1 Greenl. 343. And 296; Bradley u. Holdsworth, 8 M. & W.
see Ulen v. Kittredge, 7 Mass. 233. 422.
2 Emmerson v. Heehs, 2 Taunt. 38; ^ Parker v. Staniland, 11 East, 862;
White V. Procter, 4 Taunt. 209 ; Long on Cutler v. Pope, 1 Shepl. 837.
Sales, p. 88 (Rand's edit.) ; Story on
26*
306 LAW OP EVIDENCE. [PART H.
namely, potatoes, being but a personal chattel, and so not within
the Statute of Frauds .^ The latter cases confirm the doctrine
involved in this decision, namely, that the transaction takes its
character of realty or personalty from the principal subject-matter
of the contract, and the intent of the parties ; and that therefore
a sale of any growing produce of the earth, reared by labor and
expense, in actual existence at the time of the contract, whether
it be in a state of maturity or not, is not to be considered a sale
of an interest in or concerning land.^ In regard to things pro-
duced annually by the labor of man, the question is sometimes
solved by reference to the law of emblements; on the ground,
that whatever will go to the executor, the tenant being dead,
cannot be considered as an interest in land.^ But the case seems
also to be covered by a broader principle of distinction, namely,
between contracts conferring an exclusive right to the land for
a time, for the purpose of making a profit of the growing surface,
and contracts for things annexed to the freehold, in prospect of
their immediate separation; from which it seems to result, that
where timber, or other produce of the land, or any other thing
annexed to the freehold, is specifically sold, whether it is to be
severed from the soil by the vendor, or to be taken by the vendee,
under a special license to enter for that purpose, it is still in the
contemplation of the parties, evidently and substantially a sale
of goods only, and so is not within the statute.*
1 Warwick v. Bruce, 2 M. & S. 205. * Eoterts on Frauds, p. 126 ; 4 Kent,
The contract was made on the 12th of Coram. 450, 451 ; Long on Sales (by
October when the crop was at its matu- Rand), pp. 76-81, and gases there cited ;
rlty; and it would seem that the potatoes Chitty on Contracts, p. 241 {2d edit.);
were forthwith to be digged and re- Bank of Lansingburg v. Crary, 1 Barb,
moved. 542. On this subject neither the English
2 Evans v. Eoberts, 5 E. & C. 829 ; nor the American decisions are quite uni-
Jones V. Plint, 10 Ad. & El. 753. form ; but the weight of authority is be-
' See observations of the learned lieved to be as stated in the te.\t, tliough
judges, in Evans v. Roberts, 5 B. & C. it is true of the former, as Ld. Abinger
829. See also Rodwell v. Phillips, 9 M. remarked in Rodwell v. Phillii)s, 9 M. &
& W. 501, where it was held, that an "W. 505, that " no general rule is laid
agreement for the sale of growing pears down in any one of them, that is not con-
was an agreement for the sale of an inter- tradicted by some others." See also
est in land, on the principle, that the Poulter v. ICillingbeck, 1 B. & P. 398;
fruit would not pass to, tlie executor, but Parker v. Staniland, 11 East, 362, distin-
would descend to the heir. The learned guishing and qualitying Crosby v. Wads-
Chief Baron distinguished this case from worth, 6 East, 611 ; Smitli v. Surman, 9
Smith V. Surman, 9 B. & C. 561, the lat- B. & C. 561 ; Watts v. Priend, 10 B. & C.
ter being the case of a sale of growing 446. The distinction taken iuBostwicku.
timber by the foot, and so treated Im the Leach, 3 Day, 476, 484, is this, that when
parties as if it had been actually felled ; — there is a sale of property, which would
a distinction which coniirms the view sub- pass by a deed of land, ns such, without
sequently taken in the text. any other description, if it can be sepsy
CHAP. XIV.]
STATUTE OP FKAUDS.
307
§ 272. Devises of lands and tenements are also required to be in
writing, signed by the testator, and attested by credible, that is,
by competent -witnesses. By the statutes, 32 Hen. VIII, c. 1. and
34 & 35 Hen. VIII., c. 5, devises were merely required to be in
writing. The Statute of Frauds, 29 Car. II., c. 3, required the
attestation of " three or four credible witnesses ; " but the statute 1
Vict. c. 26, has reduced the number of witnesses to two. The pro-
visions of the Statute of Frauds on this subject have been adopted
in most of the United States.^ It requires that the witnesses
rated from the freehold, and hy the con-
tract is to be separated, such contract is
not within the statute. See accordingly,
Whipple V. Foot, 2 Johns. 418, 422; Frear
V. Hardenbergh, 5 Jolins. 276; Stewart v.
Doughty, 9 Johns. 108, 112; Austin v.
Sawyer, 9 Cowen, 39 ; Erskine v. Plum-
mer, 7 Greenl. 447 ; Bishop i\ Doty, 1
Vermont, R. 88 ; Miller v. Baker, 1 Met.
27 ; Whitmarsh v. Walker, Id. 313 ; Claf-
lin a. Carpenter, 4 Met. 586. Mr. Rand,
who has treated this subject, as well as all
others on which' he has written, with
great learning and acumen, would recon-
cile tlie English authorities, by distin-
guishing between tliose cases in which
the subject of the contract, being part of
the inheritance, is to be severed and de-
livered by the vendor, as a chattel, and
those in which a right of entry by the
vendee to cut and take it is bargained for.
" Tlie authorities," says he, " all agree in
this, that a bargain for trees, grass, crops,
or any sucli like thing, when severed
from the soil, which are growing, at the
time of the contract, upon the soil, but to
be severed and delivered by the vendor,
as chattels, separate fiom any interest in
the soil, is a contract for the sale of goods,
wares, or merchandise, within the mean-
ing of the seventeentli section of the Stat-
ute oi' Frauds. (Smith v. Surman, 9 B.
& C. 561; Evans v. Roberts, 5 B. & C.
836; Watts v. Friend, 16 B. & C. 446;
Parker u. Staniland, 11 East, 362; War-
wick V. Bruce, 2 M. & S. 205.) So,
where tlie subject-matter of the bargain is
frucins iiuiiislriales, such as corn, garden-
roots, and sucli like things, which are em-
blements, and which have already grown
to maturity, and are to be taken immedi-
ately, and no right of entry forms abso-
lutely part of the contract, but a mere
license is given to the vendee to enter and
take them, if will fall within the operation
of the same section of the statute. (War-
wick V. Bruce, 2 M. & S 205 ; Parker v.
Staniland, 11 East, 362; Park, B., Car-
rington o. Roots. 2 M & W. 256 ; Bayley,
B., Shelton v. Livius, 2 Tyrw. 427, 429 ;
Baylev, J., Evans v. Roberts, 5 B. & C.
831; Scorell v. Boxall, 1 Y. & J. 398;
Mayfield v. Wadsley, 3 B. & C. 367.)
But where the subject-matter of the con-
tract constitutes a part of the inheritance,
and is not to be severed and delivered by
the vendor as a chattel, but a riglit of
entry to cut and take it is bargained for,
or, where it is emblements growing, and
a right in the soil to grow and bring tliem
to maturity, and to enter and take them,
that makes part of the bargain, the case
will fall within the fourtli section of the
Statute of Frauds. (Carrington i". Roots,
2 M. & W. 257; Shelton v. Livius, 2
Tyrw. 429 ; Scorell v. Boxall, 1 Y. & J.
398 ; Earl of Falmouth v. Thomas, I Cr.
& M. 89 ; Teal v. Auty, 2 B. & Bing. 99 ;
Emmerson v. lieelis, 2 Taunt. 38 ; Wad-
dington v. Bristow, 2 B. & P. 452 ; Cros-
by V. Wadsworth, 5 East. 602.)" See
Long on Sales (by Rand), pp. 80, 81,
But the latter English and the American
authorities do not seem to recognize such
distinction. [See also Browne on Stat,
of Frauds, §§ 235-257.]
1 In Nav Ilanijishire alone the will is
required to be scaled. Three witnesses
are necessary to a valid will in Vermont,
New Haiiipshlre, Maine, MassacUnsetts,
Rhode Island, Connecticut, New Jersey,
Maryland, South Carolina, Georgia, Flori-
da, Alabama, and Mississippi. Two wit-
nesses only are requisite in Neiu York,
Delaware, Virijinia, Ohio, Illinois, Indiana,
Missouri, Tennessee, North Carolina, Michi-
ffan, Wisconsin, Arkansas, and Kentucky.
In some of the states, the provision as to
attestation is more special. In Pennsyl-
vania, a devise is good, if properly signed,
though it is not subscribed by any attest-
ing witness, provided it can be proved by
two or more competent witnesses ; and if
it be attested by witnesses, it may still be
proved by others. 4 Kent, Conim. 514.
See post, vol. 2, tit. Wills, [7th edit.
(1858,) §§ 673-678, and notes.] See fur-
ther, as to the execution of Wills, 6
308 LAW OF EVIDENCE. [PAET U.
should attest and subscribe the will in the testator's presence.
The attestation of marksmen is sufficient; and, if they are dead,
the attestation may be proved by evidence, that they lived near the
testator, that no others of the same name resided in the neighbor-
hood, and that they were illiterate persons.^ One object of this
provision is, to prevent the substitution of another instrument for
the genuine will. It is therefore held, that to be present, within
the meaning of the statute, though the testator need not be in the
same room, yet he must be near enough to see and identify the
instrument, if he is so disposed, though in truth he does not
attempt to do so ; and that he must have mental knowledge and
consciousness of the fact.^ If he be in a state of insensibility at
the moment of attestation, it is void.^ Being in the same room
is held prirad facie evidence of an attestation in his presence ;
as an attestation, not made in the same room, is primd facie not
an attestation in his presence.* It is not necessary, under the
Statute of Frauds, that the witnesses should attest in the presence
of each other, nor that they should all attest at the same time ; ^
nor is it requisite that they should actually have seen the testator
sign, or known what the paper was, provided they subscribed the
instrument in his presence and at his request.^ Neither has it
Cruise's Dig. tit. 38, cli. 5, Greenleaf s will shall be valid unless it be in writing,
notes; [2d edit. (1857) pp. 47-80, and signed by the testator in the presence of
notes ;] 1 Jarman on Wills, oh. 6, by Per- two witnesses at one time. See Moore v.
kins. King, 3 Curt. 243 ; in the goods of Sim-
1 Doe V. Caperton, 9 C. & P. 112 ; monds. Id. 79.
Jackson v. Van Dusen, 6 Johns. 144; * White k. Trustees of the British Mu-
Doe V. Davis, 11 Jur. 182. seum, 6 Bing. 310 ; Wright v. Wright, 7
2 Shires v. Glascock, 2 Salk. 688 (by Bing. 457 ; Dewey v. Dewey, 1 Met. 849 ;
Evans), and cases cited in notes ; 4 Kent, Johnson v. Johnson, 1 C. & M. 140. In
Comm. 515, 516 ; Casson v. Dade, 1 Bro. these cases, the court certainly seem to
Ch. K. 99; Doe v. Manifold, 1 M. & S. regard the knowledge of the witnesses,
294 ; Tod v. E. of Winchelsea, 1 M. & M. that the instrument was a will, as a mat-
12 ; 2 C. & P. 488 ; Hill v. Barge, 12 Ala. ter of no importance ; since in the first
687. two cases only one of the witnesses knew
8 Right V. Price, Doug. 241. what the paper was. But it deserves to
* Neil V. Neil, 1 Leigh, R. 6, 10-21, be considered whether in such case, the
where the cases on this subject are ably attention of the witness would probably
reviewed by Carr, J. If the two rooms be drawn to the state of the testator's
have a communication by folding-doors, it mind, in regard to his sanity ; for if not,
is still to be ascertained whether, in fact, one object of the statute would be defeat-
the testator could have seen the witnesses ed. See Rutherford v. Rutherford, 1 De-
in the act of attestation. In the goods of nio, 88 ; Brinkerhoff v. Remsen, 8 Paige,
Colman, 3 Curt. 118. 488 ; 26 Wend. 325 ; Chaffee v. Baptist,
6 Cook V. Parsons, Prec. in Chan. 184; M. C. 10 Paige, 85; 1 Jarm. on Wills (by
Jones V. Lake, 2 Atk. 177, in note ; Gray- Perkins), p. 114 ; 6 Cruise's Dig. tit. 88,
son V. Atkin, 2 Ves. 455; Dewey v. Dew- ch. 5, § 14, note (Greenleaf 's edit.), [23
ey, 1 Met. 349; 1 WiUiams on Executors edit. 1857, vol. 3, p. 63, and note.] See
(by Troubat), p. 46, note (2.) The stat- further, as to proof by subscribing wit
ute of 1 Vict. c. 26, § 9, has altered the nesses, infra, §§ 569, 569 a, 672.
law in this respect, by enacting that no
CHAP. XIY.] STATUTE OF FRAUDS. 309
been considered necessary, under this statute, that the testator
should subscribe the instrument ; it being deemed sufficient that it
be signed by him in any part, with his own name or mark, provided
it appear to have been done animo perficiendi, and to have been
regarded by liim as completely executed .^ Thus, where the will
was signed in the margin only ; or where, being written by the
testator himself, his name was written only in the beginning of
the will, I, A. B., &c., this was held a suflBicient signing.^ But
where it appeared that the testator intended to sign each several
shoet of the Avill, but signed only two of them, being unable, from
extreme weakness, to sign the others, it was held incomplete.^
§ 273. By the Statute of Frauds, the revocation of a will, by the
direct act of the testator, must be proved by some subsequent will
or codicil, inconsistent with the former ; or by some other writing,
declaring the same, and signed in the presence of three witnesses ;
or by burning, tearing, cancelling, or obliterating the same by the
testator, or in his presence and by his direction and consent.*
It is observable, that this part of the statute only requires that
the instrument of revocation, if not a will or codicil, be signed by
the testator in presence of the witnesses, but it does not, as in the
1 That the party's marh or initials is a of this treatise. The latter exceptions still
sufficient signature to any instrument, be- exist in England ; but nuncupative wills
ing placed there with intent to bind him- seem to be abolished there, by the general
self, in all cases not otherwise regulated terms of the statute of 1 Vict. c. 26, § 9,
by statute, see Baker v. Dening, 8 Ad. & before cited. The common law, which
El. 94 ; Jackson v. Van Dusen, 5 Johns, allows a bequest of personal estate by pa-
144 ; Palmer v. Stephens, 1 Den. 471, and rol, without writing, has been altered by
the cases cited in 6 Cruise's Dig. tit. 38, statute in most, if not all of the United
ch. 5, §§ 7, 19, notes (Greenleaf's edit.). States; the course of legislation having
[2d edit. (1857) vol. 3, pp. 50-56] ; post, tended strongly to the abolition of all dis-
vol. 2, § 677. tinctions between the requisites for the
2 Lemaine v. Stanley, 3 Lev. 1 ; Mor- testamentary disposition of real and of
rison V. Turnoiu-, 18 Ves. 183. But this personal property. See 4 Kent, Coram,
also is now changed by the statute 1 Vict. 516-520; Lovelass on Wills, pp. 315-319;
c. 26, § 9, by which no will is valid unless 1 Williams on Executors (by Troubat),
it be signed at the foot or end thereof, by pp. 46-48, notes ; 1 Jarman on Wills (by
the testator, or by some other person, in Perkins), p. [90] 13.2, note; 6 Cruise's
his presence and by his direction; as well Dig. (by Greenleaf ), tit. 38, ch. 5, § 14,
as attested by two witnesses, subscribing note; [2d edit. (1857) vol. 3, p. 53, and
their names in his presence. See in the note].
goods of Carver, 3 Curt. 29. 4 Stat. 29 Car. II., c. 3, § 6. The stat-
3 Right V. Price, Doug. 241. The Stat- nte of 1 Vict. c. 26, § 20, mentions " burn-
ute of Frauds, which has been generally ing, tearing, or otherwise destroying the
followed in the United States, admitted same," &c. And see further, as to the
exceptions in favor of nuncupative or ver- evidence of revocation, 6 Cruise's Dig.
bal wills, made under certain circum- (by Greenleaf), tit. 38, ch. 6, §§ 18, 19,
stances therein mentioned, as well as in 29, notes; [2d edit. (1857) vol. 3, p. 81 et
favor of parol testamentary dispositions of seq.; 2 Greenl. Evid. (7th edit.) § 680-
personalty, by soldiers in actual service, 687;] 1 Jarman on Wills (by Perkins),
and by mariners at sea ; any further notice ch. 7, § 2, notes.
of wliich would be foreign from the plan
BIO LAW OF EVIDENCE. [PAET II.
execution of a will, require that tlie witnesses should sign in his
presence. In regard to the other acts of revocation here mentioned,
they operate by one common principle, namely, the intent of the
testator. Revocation is an act of the mind, demonstrated by some
outward and visible sign or symbol of revocation ; ^ and the words
of the statute are satisfied by any act of spoliation, reprobation, or
destruction, deliberately done upon the instrument, animo revo-
candi? The declarations of the testator, accompanying the act,
are of course admissible in evidence as explanatory of his inten-
tion.3 Accordingly, where the testator rumpled up his will and
threw it into the fire with intent to destroy it, though it was saved
entire without his knowledge, this was held to be a revocation.*
So, where he tore off a superfluous seal.^ But where, being angry
with the devisee, he began to tear his will, but being afterwards
pacified, he fitted the pieces carefully together, saying he was glad
it was no worse, this was held to be no revocation.*"
§ 274. Documentary evidence is also required in proof of the
contract of apprenticeship; there being no legal binding, to give
the master coercive power over the person of the apprentice, unless
it be by indentures, duly executed in the forms prescribed by the
varioiis statutes on this subject. The general features of the Eng-
lish statiites of apprenticeship, so far as the, mode of binding is
concerned, will be found in those of most of the United States.
There are various other cases, in which a deed, or other docu-
mentary evidence is required by statiites, a particular enumeration
of which would be foreign from the plan of this treatise.^
1 Bibb V. Thomas, 2 W. Bl. 1043. subscribing witnesses are necessary to the
2 Burtenshaw v. Gilbert, Cowp. 49, 52 ; execution of a deed of conveyance of lands
Burns v. Burns, 4 S. & R. 567 ; 6 Cruise's to entitle it to registration ; in otliers, but
Dig. (by Greenleaf) tit. 38, ch. C, § 54; one. In some others, the testimony of
Jolinson V. Brailsford, 2 Nott & McC. 272 ; two witnesses is requisite, wlien tlie deed
Winsor u. Pratt, 2 B. & B. 650; Lovelass is to be proved by witnesses. See supra,
on Wills, pp. 346-350 ; Card v. Grinman, 5 § 260, note ; 4 Cruise's Dig. tit. 32, c. 2,
Conn. 168; 4 Kent, Coram. 531, 532. § 77, note (Greenleaf 's edit.), J2d edit.
3 Dan r. Brown, 4 Cowen, 490. (1856) vol. 2, p. 341;] 4 Kent, Comm.
* r..bb 0. Thomas, 2 W. Bl. 1013. 457. See .also post, vol. 2 [7th edit.
f Averyu. Pixiey, 4 Mass. 462. 1858], tit. Wills, passim, where the sub-
0 Doe V. Perkes, 3 B. & Aid. 489. ject of Wills is more amply treated
' In several of the United States, two
CHAP. XV."] ADMISSIBILITY OP PAEOL EVIDENCE. 311
CHAPTEK XV.
OP THE ADMISSIBILITY OP PAEOL OB VERBAL EVIDENCE TO APPECX
THAT WHICH IS WEITTEN.l
[* § 275. Written instruments cannot be controlled by parol evidence.
276. This rule applies as well to simple contracts as to specialties.
277. The rule does not exclude proof of surrounding circumstances.
278. Ordinary meaning of words to prevail, with some exceptions.
279. The rule only applies to the parties to the instrument.
280. Scientific evidence admissible to prove import of terms.
281. Numerous instances where parol evidence was rejected.
282. The rule does not. exclude evidence showing the import of terms.
282a. Brief epitome of some of the recent decisions.
283. Different cotemporaneous writings may be construed together.
284. It may be shown that the writing is void, or never took effect.
284a. Where part of the contract is left out of the writing, it may be proved by
parol.
285. Admissible to prove time of execution, additional consideration, &c.
286. The extent of the subject-matter, and whether parcel or not, may be
proved.
287. This is indispensable to place the court in the position of the parties.
288. To what extent extraneous evidence is admissible to define subject-matter.
288a. Summary of late decisions.
2886. Distinction between province of court and jury.
289. Lord Abinger's opinion upon the construction of wills.
290. Proof of testator's intention is admissible only in cases of latent ambiguity,
291. The subject further illustrated by reference to the cases.
292. Usage admissible to explain, but not to contradict words.
293. The acts of the parties admissible to fix construction.
294. Parol evidence admissible to annex incidents and explain the import of
terms.
295. Also to show that the terms used liave a local and special meaning.
29.'ja. The true ground of receiving it is to place the court in the position of the
parties.
296. Admissible to rebut an equity. Ademption of portion or legacy.
296a. Courts of equity correct mistakes in written contracts.
297. Lord Bacon's definition of the distinction between latent and patent am-
biguities.
1 The subject of this chapter is ably and in 1 Smith's Leading Cases, pp. 410-
discussed in Spence on the Bquitable Ju- 418 [305-310], with Hare fc Wallace's
risdiction of Chancery, vol. 1, pp. 553-575, notes.
812 LAW OP EVIDENCE. [PART 11,
§ 298. A writing is not ambiguous, unless it remain so after resorting to all adnua-
sible aids to the construction.
298a. The coiu?t may enter up correct judgment, notwithstanding improper
proof admitted.
299. Sir James Wigram's distinction between inaccuracy and ambiguity of lan-
guage.
300. Obscurity in language cannot be removed by oral proof.
301. An error in the description not fatal if still intelligible.
302. Written contracts may be superseded or modified by paroL
303. So parol evidence is admissible to prove a new agreement.
304. To what extent written contracts may be enlarged by parol.
305. Receipt may be explained by parol evidence.]
§ 275. By written evidence, in this place, is meant not every
thing which is in writing, but that only which is of a documen-
tary and more solemn nature, containing the terms of a contract
between the parties, and designed to be the repository and evi-
dence of their final intentions. Fiunt enim de his \contraotihus\
scripturm, ut, quod actum est, per eas faciliils probari poterit?- When
parties have deliberately put their engagements into writing, in
such terms as import a legal obligation, without any uncertainty
as to the object or extent of such engagement, it is conclusively
presumed that the whole engagement of the parties, and the
extent and manner of their undertaking, was reduced to writing ;
and all oral testimony of a previous colloquium between the par-
ties, or of conversation or declarations at the time when it was
completed, or afterwards, as it would tend, in many instances to
substitute a new and different contract for the one which was
really agreed upon, to the prejudice, possibly, of one of the par-
ties, is rejected.^ In other words, as the rule is now more briefly
expressed, " parol contemporaneous evidence is inadmissible, to
contradict or vary the terms of a valid written instrument."^
1 Dig. lib. 20, tit. 1, 1. 4 ; Id. lib. 22, Civil Law, — Contra scriptum testimoni-
tit. 4, 1. 4. um, non scriptum testimonium non fertur.
2 Stackpole v. Arnold, 11 Mass. 30, 31, Cod. lib. 4, tit. 20, 1. 1.
per Parker, J. ; Preston v. Merceau, 2 W. » Phil. & Am. on Evid. p. 753 ; 2 Phil.
Bl. 1249; Coker v. Guy, 2 B. & P. 565, Evid. 350; 2 Stark. Evid. 544, 548; Ad
569 ; Bogert v. Cauman, Anthon's B. 70 ; ams v. Wordley, 1 M. cS> W. 379, 380,
Bayard v. Malcolm, 1 Johns. 467, per per Parke, B.; Boormau v. Johnston, 12
Kent, C. J. ; Rich v. Jackson, 4 Bro. Ch. Wend. 573. [* Thus the entry in a court
R. 519, per Ld. Thurlow ; Sinclaii' v. Ste- of record into which a recognizance is re-
venson, 1 C. & P. 582, per Best, C. J. ; turnable, that the principal made default,
McLellan v. The Cumberland Bank, 11 cannot be contradicted by parol evidence,
Shepl. 566. The general rule of the on scire facias, against the bail. Common-
Scotch law is to the same effect, namely, wealth v. Slocum, 14 Gray, 395. Nor can
that " writing cannot be cut down or taken an official entry on a record, void for un-
away, by the testimony of witnesses." certainty, be explained by extrinsic evi-
Tait on Evid. pp. 326, 327. And this, in dence. Porter v. Byrne, 10 Ind. 146.1
other language, is the rule of the Roman
CHAP. XV.] ADMISSIBHITT OP PAROL EVIDENCE. 313
§ 276. This rule " was introduced in early times, when the most
frequent mode of ascertaining a party to a contract was by his seal
affixed to the instrument ; and it has been continued in force,
since the vast multiplication of written contracts, in consequence
of the increased business and commerce of the world. It is not
because a seal is put to the contract, that it shall not be explained
away, varied, or rendered ineffectual ; but because the contract
itself is plainly and intelligibly stated, in the language of the par-
ties, and is the best possible evidence of the intent and meaning
of those who are bound by the contract, and of those who are to
receive the benefit of it." " The rule of excluding oral testimony
has heretofore been applied generally, if not universally, to simple
contracts in writing, to the same extent and with the same excep-
tions as to specialties or contracts under seal." ^
§ 277. It is to be observed, that the rule is directed only against
the admission of any other evidence of the language employed by
the parties in making the contract, than that which is furnished
by the writing itself. The writing, it is true, may be read by the
light of surrounding circumstances, in order more perfectly to
understand the intent and meaning of the parties ; but, as they
have constituted the writing to be the only outward and visible
expression of their meaning, no other words are to be added to it,
or substituted in its stead. The duty of the court in such cases,
is to ascertain, not what the parties may have secretly intended, as
contradistinguished from what their words express ; but what is
the -meaning of words they have used.^ It is merely a duty- of
interpretation ; that is, to find out the true sense of the written
words, as the parties used them ; and of construction, that is,
when the true sense is ascertained, to subject the instrument, in its
operation, to the established rules of law.^ And where the lan-
1 Per Parker, J., in Staokpole v. Ar- Construction is ably treated by Professor
nold, 11 Mass. 31. See also Woolam v. Lieber, inliis Legal and Political Herme-
Hearn, 7 Ves. 218, per Sir William Grant; neutics, ch. 1, § 8, and ch. 3, §§ 2, 3. And
Hunt V. Adams, 7 Mass. 522, per Sew- see Doet. & St. 39, c. 24. The interpre
all, J. tation, as well as the construction of a
^ Doe V. Gwillim, 5 B & Ad. 122, 129, written instrument, is for tlie court, and
per Parke, J. ; Doe v. Martin, 4 B. & Ad. not for the jury. ]3ut oilier questions of
771, 786, per Parke, J.; Beaumont v. intent, in fact, are for tlie jury. The
Field, 2 Chitty's R. 275, per Abbott, C. J. court, however, where the meaning is
See ivfra, § 295. [And where a written doubtful, will, in proper cases, receive
instrument is lost, and parol evidence is evidence in aid of its judgment. Story
given of its contents, its construction still on Agency, § 63, note (1); I'aley on
remains the duty of the court. Berwick Agency, by Lloyd, p. 198, n.; sujrra, §
V. Horsfall, 4 Com. B. Reps. N. s. 450.] 49; Hutcliinson v. Bowker, 5 M. & W.
8 The subject of Interpretation and 535; and where it is doubtful whetlier a
vol.. I 2?"
314 LAW OP EVIDENCE. [PABT 11.
guage of an instrument has a settled legal construction, parol
evidence is not admissible to contradict that construction. Thus,
where no time is expressly limited for the payment of the money
mentioned in a special contract in writing, the legal construction
is, that it is payable presently ; and parol evidence of a contempo-
raneous verbal agreement, for the payment at a future day, is not
admissible.-"^
§ 278. The terms of every written instrument are tp be under-
stood ' in their plain, ordinary, and popular sense, unless they have
generally, in respect to the subject-matter, as, by the known' usage
of trade, or the like, acquired a peculiar sense, distinct from the
popular sense of the same words ; or iinless the context evidently
points out that, in the particular instance, and in order to effectu
ate the immediate intention of the parties, it should be understood
in some other and peculiar sense. But where the instrument con-
sists partly of a printed formula, and partly of written words, if
there is any reasonable doubt of the meaning of the whole, the
written wo7-ds are entitled to have greater effect in the interpretation
than those which are printed ; they being tlie immediate language
and terms selected by the parties themselves for the expression of
their meaning, while the printed formula is more general in its
nature, applying equally to tlioir case and to that of all other con-
tracting parties, on similar subjects and occasions.^
§ 279. The rule tinder consideration is applied only in suits her
tween the parties to the instrument ; as they alone are to blame if
the writing contains what was not intended, or omits that which it
should have contained. It cannot affect third persons ; who, if
it were otherwise, might be prejudiced by things recited in the
writings, contrary to the truth, through the ignorance, careless,
or fraud of the parties ; and who, therefore, ought not to bo pre-
cluded from proving the truth, however contradictory to the
written statements of others.^
certain word was used in a sense different poration was understood by a director.
&om its ordinary acceptation, it will refer Gould v. Norfolk Lead Co. 9 Cusli. 338,
the question to the jury. Simpson v. 345. J
Margitson, 35 Lepc. Obs. 172. 2 pp^ ^^ Ellenborough, in Robertson
1 Warren v. Wlieeler, 8 Met. 97. Nor v. Frcncli, 4 East, 135, 136. See Wigram
is parol evidence admissible to prove how on the Interpretation of Wills, pp. 15, 16,
a written contract was understood by and cases there cited. See also Boorman
either of the p.irties, in an action upon v. Johnston, 12 Wend. 573; Taylor v.
it at law, in the absence of any fraud. Briggs, 2 C. & P. 525; Alsager ii. St.
Bigelow V. CoUamore, 5 Cush. 226 ; Harp- Katherine's Dock Co. 14 M. & W. 799,
er V. Gilbert, Id. 417. [Parol evidence is per Parke, B.
not admissible to show in what sense the ^ Supra, §§ 23, 171, 204 ; 1 Poth. Obi.
recorded vote of the directors of a cor- by Evans, P. 4, c. 2, art. 3, n. [7661 ; 2
CHAP. XV.] ADMISSIBILITY OF PAEOL EVIDENCE.
316
§ 280. It is almost superfluous to add, that the rule does not
exclude the testimony of experts, to aid the court in reading the
instrument. If the characters are difficult to be deciphered, or
the language, whether technical, or local and provincial, or alto-
gether foreign, is not understood by the court, the evidence of
persons skilled in deciphering writings, or who understood the
language in which the instrument is written, or the technical or
local meaning of the terms employed, is admissible, to declare
what are the characters, or to translate the instrument, or to tes-
tify to the proper meaning of the particular words .^ Thus the
words "inhabitant," 2 " level," ^ "thousands,"* "fur,"^ « freight," «
and many others, have been interpreted, and their peculiar mean-
ing, when used in connection with the subject-matter of the
transaction, has been fixed, by parol evidence of the sense in
which they are usually received, when employed in cases similar
to the case at bar. And so of the meaning of the phrase, " duly
Stark. Evid. 575; Krider v. Lafferty, 1
Whart. 303, 314, per Kennedy, J.; Key-
nolds V. Magness, 'J. Iredell, R. 26 ; [Edg-
erly v. Emerson, 3 Foster, 555. See
Langdon v. Langdon, i Gray, 186.]
1 Wigrara on tlie Interpretation- of
Wills, p. 48; 2 Starjs. Evid. 5B5, 566;
Bircli V. Depeyster, 1 Stark. R. 210, and
cases there cited ; infra, §§ 292, 440, note;
Slieldon V. Benliam, 4 Hill, N. Y. Rep.
123; [Stone v. Hubbard, 7 Gush. 595,
597.]
2 The King v. Mashiter, 6 Ad. & El.
153.
3 Clayton v. Gregson, 5 Ad. & El. 302;
4 N. & M. 602, s. 0.
* Smith V. Wilson, 3 B. & Ad. 728.
The doctrine of the text was more fully
expounded by Shaw, C. J., in Brown v.
Brown, 8 Mot. 576, 577, as follows: " The
meaning' of words, and the grammatical
cojislruction of the English language, so
far as they are established by the rules
and usages of the language, are, prima
facie, niatler of law, to be construed and
passed upon by the court. But language
may be ambiguous, and used in difTerent
senses ; or general words, in particular
trades and branches of business, — as
among merchants, for instance, — may be
used in a new, pecuHar, or technical
sense ; and, therefore, in a few instances,
evidence may be received, from tlTOse
who are conversant with such branches
of business, and such technical or peculiar
use of language, to explain and ii'lustrate
it. One of the strongest of these, per-
haps, among the recent cases, is the case
of Smith V. Wilson, 3 Barn. & Adolph.
728, where it was held that, in an action
on a lease of an estate including a rabbit
warren, evidence of usage was admissible,
to show that the words, ' thousand of rab-
bits' were understood to mean one hun-
dred dozen, that is, twelve hundred. But
the decision was placed on the ground
that the words ' hundred,' ' thousand,' and
the like, were not understood, when ap-
plied to particular subjects, to mean that
number of units ; that the definition was
not fixed by law, and therefore was open
to such proof of usage. Though it is ex-
ceedingly difficult to draw the precise line
of distiuclion, yet it is nianilest that such
evidence can be admitted only in a few
cases like the above. Were it otherwise,
written instruments, instead of importing
certainty and verity, as being the sole re-
pository of the will, intent, and purposes
of the parties, to be construed by the rules
of law, might be made to speak a very
different language by the aid of parol evi-
dence." [See also Attorney-General v.
Clapham, 31 Eng. Law & Eq. 142].
'' Astor V. The Union Ins. Co. 7 Cow-
en, 202.
'' I'eisch V. Dickson, 1 Mason, 11, 12.
[Evidence of the character of the plain-
tiffs' freighting business for several jears
previous, is admissible to show that the
defendant, in contracting to transport
"their ti'cight," did not mean to include
hay. Noyes v. Canfield, 1 Williams, 79.]
316 LAW OP EVIDENCE. [PAET H.
honored," i when applied to a bill of exchange ; and of the expres-
sion, " in the month of October," ^ when applied to the time when
a vessel was to sail ; and many others of the like kind. If the
question arises from the obscurity of the writing itself, it is deter-
mined by the court alone ; ^ but questions of custom, ixsage, and
actual intention and meaning derived therefrom are for the jury.*
But where the words have a known legal meaning, such, for ex-
ample, as measures of quantity fixed by statute, parol evidence,
that the parties intended to use them in a sense different from the
legal meaning, though it were still the customary and popular
sense, is not admissible.^
§ 281. The reason and policy of the rule will be further seen, by
adverting to some of the cases in which parol evidence has been
rejected. Thus, where a policy of insurance was effected on goods,
" in ship or ships from Surinam to London," parol evidence was
held inadmissible to show that a particular ship in the fleet, which
was lost, was verbally excepted at the time of the contract.^ So,
where a policy described the two termini of the voyage, parol evi-
dence was held inadmissible to prove that the risk was not to
commence until the vessel reached an intermediate place.' So,
1 Lucas V. Groning, 7 Taunt. 164. C. & K. 349. Conversations between the
^ Chaurand v. Angcrstien, Peake's Cas. parties at the time of making a contract
43. See also Peiseh v. Dickson, 1 Mason, are competent evidence, as a part of the
12; Doe v. Benson, 4 B. & Aid. 588; res (/este, to show the sense which they at-
United Stales v. Breed, 1 Sumn. 159 ; taclied to a particular term used in the
Taylor v. Briggs, 2 C. & P. 525. [And to contract. Gray v. Harper, 1 Story, E.
explain such an expression as "Regular 574. Where a sold note run thus; — "18
tiurns of loading," in an action on a con- pockets of hops, at 100s.," parol evidence
tract for loading coals at Newcastle, was held admissible to show that 100s.
Leideman v. Scliultz, 24 Eng. Law & Kg. meant the price per hundred weight. Spi-
305. Theological works of the period re- cer v. Cooper, 1 G. & D. 52. [Parol evi-
ferred to are admissible, to show the dence is inadmissible to show that the
meaning of the words "Protestant dissent- parties to a deed understood " half" of a
ers," in a trust deed. Drummond v. At- rectangular lot to mean a less quantity.
torney-General, 2 lb. 15 ; infra, § 295], Butler v. Gale, 1 Williams, 7391.
3 Eemon v. Hay ward, 2 Ad. & El. 666 ; " Weston v. Eames, 1 Taunt. 115.
Crofts V. Marshall, 7 C. & P. 597 ; infra, § '' Kaines v. Knightly, Skin. 54 ; LesUe
300. But see Sheldon v. Benham, 4 Hill, v. De la Torre, cited 12 East, 358. [So
(N.Y.) Rep. 123. where a policy was issued by a mutual
* Lucas V. Groning, 7 Taunt. 164, 167, insurance company, and ' made in terms
168; Bircli v. Depeyster, 1 Stark. E. 210; subject to the conditions of its by-laws,
Paley in Agency (by Lloyd), p. 198; and the by-laws provided that any policy
Hutchiasou v. Bowker, 5 M. & W. 535. issued upon property previously insmred
5 Smith V. Wilson, 3 B. & Ad. 728, per should be void unless tlie previous in-
Lord Tenterden; Hockin v. Cooke, 4 T. R. surance should be expressed in the policy
314; Attorney-General v. The Cast Plate when issued, parol evidence is inadmissi-
Glass Co. 1 Anstr. 39 ; Sleght v. Rhine- ble to show that the fact of the existence
lander, 1 Johns. 192 ; Frith v. Barker, 2 of such prior insurance, and of the under-
Jolms. 335 ; Stoever v. Whitman, 9 Binn. standing of the insured that it should re-
417 ; Henry v. Risk, 1 Dall. 465 ; Doe o. main in force, was made known to the
Lea, 11 East, 312 ; Caine v. Horsefall, 2 defendant company, and assented to by
CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE.
317
where the instrument purported to be an absolute engagement to
pay at a specified day, parol evidence of an oral agreement at the
same time that the payment should be prolonged/ or depend upon
a oontingency,^ or be made out of a particular fund, has been
rejected.^ Where a written agreement of partnership was unlim-
ited as to the time of commencement, parol evidence that it was
at the same time verbally agreed that the partnership should not
commence until a future day was held inadmissible.* So, where,
in assumpsit for use and occupation, upon a written memorandum
of lease, at a certain rent, parol evidence was offered by the plain-
tiff of an agreement at the same time to pay a further sum, being
the ground rent of the premises, to the ground landlord, it was
rejected.^ So, where, in a written contract of sale of a sliip, the
them, prior to the execution and delivery
of the policy. Barrett v. Union Mut. Fire
Ins. Co. 7 Cush. 175, 180; Lee v. Howard,
&c. Co. 8 Gray, 583, 592. So where a
bill of lading expressly stipulated that
certain goods named therein may be car-
ried on deck, parol evidence is inadmissi-
ble to show that the shipper agreed and
assented, at the time of the stowage, that
an additional portion of the goods should
be carried on deck. Sayward v. Stevens,
3 Gray, 97, 102].
1 Hoare v. Graham, 3 Campb. 57 ;
Hanson v. Stetson, 5 Pick. 506 ; Spring v.
Lovett, 11 Pick. 417.
2 Eawson v. Walker, 1 Stark. R. 361 ;
Foster v. Jolly, 1 C. M. & E. 703; Hunt v.
Adams, 7 Mass. 518 ; Free a. Hawkins, 8
Taunt. 92; Thompson v. Ketchum, 8
.Tohns, 189 ; Woodbridge v. Spooner, 3 B.
& Aid. 233 ; Moseley v. Hanford, 10 B. &
C. 729 ; Erwin v. Saunders, 1 Cowen, 249.
[See Allen v. Furbish, 4 Gray, 504, 506,
in which some of the Massachusetts cases,
showing that parol evidence is inadmissi-
ble to annex a condition to an absolute
promise in writing in the form of a prom-
issory note, promising to pay a certain
sum of money on a certain day named,
are reviewed by Dewey, J., and the prin-
ciple re-affirmed. HoUenbeck v. Shutts, 1
Gray, 431 ; Billings v. Billings, 10 Cush.
178, 182 ; Southwick v. Hapgood, lb. 119,
121 ; Ridgway v. Bowman, 7 Cush. 268,
271. Parol evidence is not admissible to
show that a promissory note was intended
for a receipt. City Bank v. Adams, 45
Maine, 455].
^ Campbell v. Hodgson, 1 Gow. B. 74.
4 Dix V. Otis, 5 Pick. 38.
s Preston v. Merceau, 2 "W. Bl. 1249.
A similar decision was made in the " Isa-
bella," 2 Rob. Adm. 241, and in White v.
Wilson, 2 B. & P. 116, where seamen's
wages were claimed in addition to the
sum named in the shipping articles. The
English statutes not only require such
contracts to be in writing, but declare that
the articles shall be conclusive upon the
parties. The statute of the United States
is equally imperative as to the writing,
but omits the latter provision as to its
conclusiveness. But the decisions in both
the cases just cited rest upon the general
rule stated in the text, which is a doctrine
of general jurisprudence, and not upon
the mere positive enactments of the stat-
utes. See 2 Rob. Adm. 243 ; Bogert v.
Cauman, Anthon's E. 70. The American
courts adopt the same doctrine, both on
general principles, and as agreeable to the
intent of the Act of Congress regulating
the merchant service. See Abbott on
Shipping (by Story), p. 434, note; Bart-
lett V. Wyman, 14 Johns. 260; Johnson v.
Dalton, 1 Cowen, R. 543 ; [Page v. Shef-
field, 2 Curtis, C. C. 377]. The same
rule is applied in regard to the Statute of
Frauds. See 11 Mass. 31. See further,
Rich V. Jackson, 4 Bro. Ch. E. 514 ; Brig-
ha-u V. Rogers, 17 Mass. 571 ; Flinn v.
Calow, 1 M. & G. 589. [So an oral prom-
ise to discharge an incumbrance not cre-
ated by himself, made by a grantor to a
grantee, cannot be shown to have been
made at the same time and for the same
consideration, as a deed containing cove-
nants of special warranty only. Howe V.
Walker, 4 Gray, 318 ; Goodrich v. Long-
ley, lb. 379, 383. Nor can a limited war-
ranty in a deed be extended to a general
warranty by proof of a parol agreement
to that effect, made at the time of the de-
livery of the deed. Raymond v. Ray-
mond, 10 Cush. 134, 141 ; Button v. Ger-
rish, 9 ib. 89. Nor can it be shown by
27*
318 LAW OP EVIDENCE. [PART 'L
ship was particularly described, it was held that parol evidence of
a further descriptive representation, made prior to the time cf sale,
was not admissible to charge the vendor, without proof of actual
fraud ; all previous conversation being merged in the written con-
tract.i So, where a contract was for the sale and delivery of
" Ware potatoes," of which there were several kinds or qualities ;
parol evidence was held not admissible to show that the contract
was in fact for the best of those kinds.^ Where one signed a
premium note in his own name, parol evidence was held inadmis-
sible to show that he signed it as the agent of the defendant, on
whose property he had caused insurance to be effected by the
plaintiff, at the defendant's request, and who was sued as the prom-
isor in the note, made by his agent.^ So, where an agent let a
ship on hire, describing himself in the charter-party as " owner,"
it was held, in an action upon the charter-party, brought by the
true owner, that parol evidence was not admissible to show that
the plaintiff, and not the agent, was the real owner of the ship.*
Even the subsequent confession of the party, as to the true intent
and construction of the title deed, under which he claims, will be
parol that the name of the grantee in a ters, 394 ; [Myrick v. Dame, 9 Cusli. 24b,
deed was inserted therein by mistake of 254.] But parol evidence is admissible to
the scrivener, in place of another person show that one of several promisors signed
who was intended as the grantee, and as the surety of another. Carpenter v.
who afterwards entered upon and occu- King, 9 Met. 511 ; McGee v. Prouty, Id.
pied the land. Crawford v. Spencer, 8 547 ; [Davis v, Barrington, 10 Foster, 517.
Cush. 418. See Arnold v. Cessna, 25 Penn. State 14.
Wliere a lease, under seal, of coal lands, 34. (So as between successive indorsers,
said nothing as to the quantity to be mined, that they were in fact co-sureties. Wes-
but established the price per bushel for all ton v. Cliamberlain, 7 Cush. 404) ; Riley v.
that was mined, it cannot be shown by par- Gerrisli, 9 lb. 104. And an agreement
ol that the lessee, at the time of signing between two sureties on a bond, that one
the lease, promised to mine all he could of them shall not, as between themselves,
dispose of. Lyon v. Miller, 24 l^enn. be hable in consequence of his becoming
State H. 392 ; Kennedy v. Erie, &c., Plank such a surety, may be proved by parol.
Road Co. 25 lb. 224 ; Chase v. jewett, Barry v. Ransom, 2 Kernan, 462. But
87 Maine, 351. "Furring for the whole see Norton v. Coons, 2 Selden, 33.] And
house," in a written building contract, where a special agreement was made in
cannot be shown by parol to mean only writing for tlie sale of goods from A to B,
usual furring. Herrick o. Noble, 1 Wil- the latter being in part the agent of C,
liams, 1 . Nor can it be shown by parol whose n.ame did not appear in the transac-
tliat an assignment of store goods was tion ; it was held, that C might maintain
intended to include the " store books." an action in his own name against A for
Taylor v. S.ajTe, 4 Zabr. 647.] the breacli of this contract, and that parol
i Pickering v. Dowson, 4 Taunt. 779. evidence was admissible to prove, that B
See also Powell v. Edmunds, 12 East, 6; acted merely as the agent of C, and for
Pender v. Fobes, 1 Dev. & Bat. 250 ; liis exclusive benefit. Hubbert v. Borden,
Wright V. Crookes, 1 Scott, N. R. 64. 6 Wharton's R. 79.
2 Smith V. Jeilreys, 15 M. & W. 561. * Humble v. Hunter, 12 Ad. & El. 810,
8 Stackpole v. Arnold, 11 Mass. 27. N. s. And see Lucas v. De la Cour, 1
See also Hunt v. Adams, 7 Mass. 518; M. & S. 249; Robson v. Drummoni. 2E.
Shankland u. City of Washington, 5 Pe- & Ad. 303.
CHAP. XT.] ADMISSIBILITY. OP PAEOL EVIDENCE. 319
rejected.! The books abound iu cases of the application of this
rule ; but these are deemed sufficient to illustrate its spirit and
meaning, which is the extent of our present design.
§ 282. From the examples given in the two preceding sections,
it is thus apparent that the rule excludes only parol evidence of the
language of the parties, contradicting, varying, or adding to that
which is contained in the written instrument ; and this because
they have themselves committed to writing all which they deemed
necessary to give full expression to their meaning, and because
of the mischiefs which would result, if verbal testimony were in
such cases received. But where the agreement in writing is ex-
pressed in short and incomplete terms, parol evidence is admissible
to explain that which is per se unintelligible, such explanation not
being inconsistent with the written terms.^ It is also to be kept
in mind, that though the first question in all cases of contract is
one of interpretation and intention, yet the question, as wo have
already remarked, is not what tlie parties may have secretly and
in fact intended, but what meaning did they intend to convey,
by the words they employed in the written instrument. To ascer-
tain the meaning of these words, it is obvious that parol -evidence
of extraneous facts and circumstances may in some cases be ad-
mitted to a very great extent, without iu anywise infringing the
spirit of the rule under consideration. These cases, which in
truth are not exceptions to the rule, but on the contrary are out
of the range of its operation, we shall now proceed to consider.
[*282a!. It seems to be well settled that the rule excludes all
evidence of intention, whether direct or inferential.^ It seems too
that parol evidence is competent to identify, and to show who
were, in fact, the contracting parties.* So, also, it is always com-
petent to prove custom or usage, in order to ascertain the sense
in whicli the parties used the terms of the writing ; as that a con-
tract for "best palm oil," "wet, dirty, and inferior oil, if any, at
1 Paine v. Mclntire, 1 Mass. 69, as ex- Wliere there is an acknowleilsment of
plained in 10 Mass. 461. See also Town- indebtedness, by making this nienioran-
send c. Weld, 8 Mass. 146. [Where the dum : " I 0 U the sum of ■'3100, which I
plaintiff declares upon and puts in evi- shall pay on demand to you," parol evi-
dence a written contract as his ground of dence is admissible to sliow tlie jierson to
action, lie cannot put in evidence the oral whom it is addressed. Kmney c. i'lyun,
declarations of the defendant as to his sup- 2 R. I. 319.]
posed liability. Goodell w. Smith, 9 Cush. ^ [» Harrison v. Barton, 7 Jur. n. s.
692, 594.] 19 ; s. o. 1 Johns. & H. 287.
2 Sweet V. Lee, 3 Man. & Gr. 452; * Holding «. Elliott, 5 II. & N. 117.]
rWebsl«r v. ETodgkins, 5 Foster, 128
320 LAW OP EVIDENCE. [PABT H.
a fair allowance," is satisfied if the oil on arrival is only one fifth
" best oil." 1 So, also, to show a usage that a broker who contracts
without disclosing his principal is himself personally responsible.^
But a custom or usage must be reasonable, in order to be obligar
tory ; and if it be such as honest and fair-minded men would deem
unfair and unjust, it cannot be regarded as valid, or of any force
in any respect.^]
§ 283. It is in the first place to be observed, that the rule does
not restrict the court to the perusal of a single instrument or
paper ; for, while the controversy is between the original parties,
or their representatives, all their contemporaneous writings, relating
to the same subject-matter, are admissible in evidence.*
§ 284. It is in the next place to be noted, that the rule is not
infringed by the admission of parol evidence, sliowing that the
instrument is altogether void, or that it never had any legal exist-
ence or binding force ; either by reason of fraud, or for want of
due execution and delivery, or for the illegality of the subject-
matter. This qualification applies to all contracts, whether under
seal or not. The want of consideration may also be proved to
show that the agreement is not binding ; unless it is either under
seal, which is conclusive evidence of a sufficient consideration,^
or is a negotiable instrument in the hands of an innocent in-
dorsee.^ Fraud, practised by the party seeking the remedy, upon
him against whom it is sought, and in that which is the subject-
matter of the action or claim, is universally held fatal to his title.
" The covin," says Lord Coke, " doth suffocate the right." The
foundation of the claim, whether it be a record, or a deed, or
a writing without seal, is of no importance ; they being alike void,
if obtained by fraud.^ Parol evidence may also be offered to
show that the contract was made for the furtherance of objects
1 [* Lucas V. Bristow, Ellis Bl. & El. 907. ^ Supra, §§ 19, 22 ; infra, § 303.
2 Dale V. Humfrey, 7 El. & Bl. 266 ; « Supra, §§ 189, 190.
B. c. El. & Bl. & El. 1004. ' 2 Stark. Evid. 340; Tait on Evid.
8 Paxton V. Coiirtnay, 2 E. & F. 131.] 327, 328 ; Chitty on Contr. 527 a ; Buckler
* Leeds v. Lancashire, 2 Campb. 205 ; v. Millerd, 2 Ventr. 107 ; Filmer v. Gott,
Hartley v. Wilkinson, 4 Campb. 127; 4 Bro. P. C. 230 ; Taylor u. Weld, 5 Mass.
Stone V. Metcalf, 1 Stark. E. 53; Bower- 116, per Sedgwick, J.; Eranchot v. Leach,
bank v. Monteiro, 4 Taunt. 846, per Gibbs, 5 Cowen, 508 ; Dorr v. Munsell, 13 Johns.
J. ; Hunt V. Livermore, 5 Pick. 395 ; Dav- 431 ; Morton v. Chandler, 8 Greenl. 9 ;
lin 17. Hill, 2 Eairf. 434; Couch v. Meeker, Commonwealth v. BuUard, 9 Mass. 270;
2 Conn. 302; Lee v. Dick, 10 Pet. 482; Scott v. Burton, 2 Ashm. 312; [Allen v.
Bell V. Bruen, 17 Pet. 161 ; 1 Howard, (s. Furbish, 4 Gray, 504, 609 ; Presoott v.
0.) E. 169, 183, s. 0. Wright, lb. 461.]
CHAP. XV.J ADMISSIBILITY OP PAROL ETIDENCB. 321
forhidden hy law} whether it be by statute, or by an express rule
of the common law, or by the general policy of the law ; or that
the writing was obtained by felony^ or by duress;^ or that the
party was incapqihU of binding himself, either by reason of some
legal impediment, such as infancy or coverture,* or from actual
imbecility or want of reason,^ whether it be by means of per-
manent idiocy or insanity, or from a temporary cause siich as
drunkenness ; ^ or that the instrument came into the hands of the
plaintiff without any absolute and final delivery} by the obligor
or party charged.
§ 284a. Nor does the rule apply, in cases where the original
contract was verbal and entire, and a 'part only of it was reduced
to writing. Tlius, where upon an adjustment of accounts, the
debtor conveyed certain real estate to the creditor at an assumed
value, which was greater than the amount due, and took the
creditor's promissory note for the balance ; it being verbally agreed
that the real estate should be sold, and the proceeds accounted
for by the grantee, and that the deficiency, if any, below the esti-
mated value, should be made good by the grantor ; which agree-
ment tlie grantor afterwards acknowledged in writing; — it was
held, in an action brought by the latter to recover tlie contents
of tlie note, that the whole agreement was admissible in evidence
on the part of the defendant ; and that, upon the proof that the
sale of the land produced less than the estimated value, the defi-
ciency should be deducted from the amount due upon the note.'
1 Collins V. Blantem, 2 Wils. 347; 1 609; Van "Valkenburg t). Eouk, 12 Johns.
Smith's Leading Cas. 154, 168, note, and 338 ; 2 Inst. 482, 483 ; 5 Dig. ub. sup.
cases there cited. If the contract is by > ^2 Kent, Comm. 450-453, and cases
deed, the illegality must be specially plead- there cited ; Webster v. Woodford, 3 Bay,
ed. Whelpdale's case, 5 Co. 119 ; Mes- 90 ; Mitchell v. Kingman, 5 Pick. 431 ;
tayer v. Biggs, 4 Tyrw. 471. But the Kice v. Peet, 15 Johns. 503.
.riile in the text applies to such cases, as ° See Barrett v. Buxton, 2 Aik. 167,
well as to those arising under the general where this point is ably examined by
issue. See also Biggs v. Lawrence, 3 T. Prentiss, J. ; Seymour v. Delancy, 3 Cow-
K. 454 ; [see Corbin v. Adams, 6 Cush. 96, en, 518 ; 1 Story's Eg. Jur. § 231, note (2) ;
for queries as to Biggs v. Lawrence ;] Wigglesworth v. Steers, 1 Hen. & Muirf.
Waymell v. Seed, 6 T. R. 600; Doe v. 70; Prentice v. Achom, 2 Paige, 31.
Ford, 3 Ad. & El. 649; CatUn k. BeU, 4 ' Clark v. Gifford, 10 Wend. 310;
Campb. 183 ; Commonwealth v. Pease, 16 United States v. Leffler, 11 Peters, 86 ;
Mass. 91; Norman v. Cole, 3 Esp. 253; Jackson d. Titus v. Myers, 11 Wend. 533,
Sinclair v. Stevenson, 1 C. & P. 582; 536; Couch v. Meeker, 2 Conn. E. 302.
Chitty on Contr. 519-527. [Where an instrument was signed with
^ 2 B. & P. 471, per Heath, J. an understanding that it was not to be
" 2 Inst. 482, 483 ; 6 Com. Dig. Plead- delivered except upon the performance of
er, 2 W. 18-23 ; Stouffer v. Latshaw, 2 a certain condition, this may be shown by
Watts, 165 ; Thompson v. Lockwood, 15 parol Black v. Lamb, 1 Beasley, 108.]
Jolms. 256 ; 2 Stark. Evid. 274. ^ x^ewis v. Gray, 1 Mass. 297 ; Lapham
« 2 Stark. Evid. 274; Anon. 12 Mod. v. AiVTiipple, 8 Met. 59. [Sheffield w. Page,
322 LAW OP EVIDENCE. [PAllT U.
[ * But this is a qualification of the general rule, which, although
correct in strictness of principle, it will be always difficult to apply,
in practice, without materially trenching upon the integrity of the
rule itself. But the English courts do not hesitate to act upon
the exception, especially where that seems the only mode of reach-
ing the justice of the case, and of enabling one party to escape
from the fraud or injustice of the other. As where it was agreed
the contract should not become operative unless a third party
consented.!]
§ 285. Neither is this rule infringed by the introduction ot
parol evidence, contradicting or explaining the instrument in some
of its recitals of facts, where such recitals do not, on other prin-
ciples, estop the party to deny them ; and accordingly in some
cases such evidence is received.^ Thus, in a settlement case,
where the value of an estate, upon which the settlement was
gained, was in question, evidence of a greater sum paid than
was recited in the deed was held admissible.^ So, to show that
the lands, described in the deed as in one parish, were in fact
situated in another.* So, to show, that at the time of entering
into a contract of service in a particular employment, there was
a further agreement to pay a sum of money as a premium, for
teaching the party the trade, whereby an apprenticeship was in-
tended ; and that the whole was therefore void for want of a
stamp, and so no settlement was gained.^ So, to contradict the
recital of the date of a deed ; as, for example, by proving that
a charter-party, dated February 6th, conditioned to sail on or
before February 12th, was not executed till after the' latter day,
and that therefore the condition was dispensed with.^ So, to
show that the reference, in a codicil to a will of 1833, was a mis-
take, that will being supposed to be destroyed ; and that the will
of 1837 was intended.^ And on the other hand, where a written
Sprague's Decisions, 285 ; Harris v. For- the location, and constitutiDg part of the
man, 5 Cora. B. Rep. n. s. 1.] description, may be referred to, to explain
1 [* Wallis «. Littell, 11 C. B. n.s. 368; the written location, but not to vary or
8 Jur. N. s. 745 ; see also Wake v. Hartop, modify it. Hazen v. Boston & M. R R. 2
low. R. 62fi; s. c. 7 Law T. n. s. 96, Gray, 574, 579; Boston & P. R. R. v.
in the Exchequer Chamber.] Midland R. R. 1 Gray, 340.]
2 2 Poth. on Obi. by Evans, pp. 181,* * Rg^ v. Laindon, 8 T. R. 379. fCream-
182. [* Harris v. Riclcett, 4 H. & N. 1; er w. Stephenson, 15 Md. 211.
Chapman v. Callis, 2 F. & E. 161.] « HaU v. Cazenove, 4 East, 477. See
8 Rex V. Scammonden, 3 T. R. 474. further, Tait on Evid. pp. 332, 333-336 ;
See also Doe v. Ford, 3 Ad. & El. 649. infra, § 304.
1 Rex V. Wickhan, 2 Ad. & El. 517. ' Quiucey ». Quincey, 11 Jur. Ill
[The plan or map of a railroad, filed with
CHAP. XT.] ADMISSIBILITY OF PAEOL EVIDENCE. 323
guaranty was expressed to be "in consideration of your having
discounted V.'s note," and it was objected that it was for a past
consideration, and therefore void, explanatory parol evidence was
held admissible, to show that the discount was contemporaneous
with the guaranty.^ So where the guaranty was " in considera-
tion of your having this day advanced to V. D.," similar evidence
was held admissible.^ It is also admissible to show when a writ-
ten promise, without date, was in fact made.^ Evidence may also
be given of a consideration, not mentioned in a deed, provided
it be not inconsistent with the consideration expressed in it.*
§ 286. As it is a leading rule, in regard to written instruments,
that they are to be interpreted according to their subject-matter,
it is obvious that parol or verbal testimony must be resorted to, in
order to ascertain the nature and qualities of the subject^ to which
the instrument refers. Evidence, which is calculated to explain
the subject of an instrument, is essentially different in its char-
acter from evidence of verbal communications respecting it.
Whatever, therefore, indicates the nature of the subject, is a just
. medium of interpretation of the language and meaning of the
parties in relation to it, and is also a just foundation for giving
the instrument an interpretation, when considered relatively,
different from that which it would receive if considered in the
abstract. Thus, where certain premises were leased, including
a yard, described by metes and bounds, and the question was,
whether a cellar under the yard was or was not included in the
lease ; verbal evidence was held admissible to show that, at the
time of the lease, the cellar was in the occupancy of another
tenant, and therefore, that it could nbt have been intended by the
parties that it should pass by the lease.^ So, where a house, or
a mill, or a factory is conveyed, eo nomine, and the question is, as
to what was part and parcel thereof, and so passed by the deed,
parol evidence to this point is admitted.''
1 Ex parte Flight, 35 Leg. Obs. 240. the person who is the other contracting
ind see Haigh v. Brooks, 10 Ad. & El. party, or who is the object of the pro-
log ; Butcher v. Stuart, 11 M. & W. 857. vision, whether it be by will or deed.
•' Goldsliede v. Swan, 35 Leg.' Obs. Phil. & Am. on Evid. 732, n. (1.)
■''^Z; 1 Exch. R. 154. This case has been « 2 Poth. on Obi. by Erans, p. 185;
!ie subject of some animated discussion Doe d. Freeland v. Burt, 1 T. R. 701;
-I England. See 12 Jur. 22, 94, 102. Elfe v. Gadsden, 2 Rich. 373 ; Brown v.
* Lobb V. Stanley, 5 Ad. & El. 574, n. s. Slater, 16 Conn. 192 ; Milbourn v. Ewart,
* CliflTord v. Turrill, 9 Jur. 633. 6 T. R. 381, 385; [infra, §§ 401, 402, and
'' In the term "subject," in this con- notes.] [*Chadwick v. Burnley, 12 W. R.
nection, text-writers include every thing to 1077.'f
which the instrument relates, as well as ' Ropps v. Barker, 4 Pick. 239; Fanai
321
LAW OF EVIDENCE.
[PAEl n.
§ 287. Indeed, there is no material difference of principle in the
rules of interpretation hetueen wills and contracts, except what
naturally arises from the different circumstances of the parties.
The object, in both cases, is the same, namely, to discover the
intention. And, to do this, the court may, in either case, put
themselves in the place of the party, and then see how the terms of
the instrument affect the property or subjecl^matter.^ With tliia
V. Stackpole, 6 Greenl. 154; infra, § 287,
cases in note. But where the language
of the deed was broad enough plainly to
include a garden, together with the house,
it was held, that the written paper of con-
ditions of sale, excepting the garden, was
inadmissible to contradict the deed. Doe
V. Wheeler, 4 P. & D. 273 ; [Goodrich :..
Longley, 1 Gray, 615, 618.]
1 Doe V. Martin, 1 N. & M. 524 ; 4 B.
& Ad. 771, 785, s. c. per Park, J.; Hol-
Btein V. Jumpson, 4 Esp. 189 ; Brown v.
Thorndyke, 15 Pick. 400 ; Phil. & Am. on
Evid. 736 ; 2PhiI. Evid. 277. [*Prior, con-
temporaneous, and subsequent enjoyment
of a right claimed, is admissible to show
the condition of property, in order to place
the court in the position of the parties.
Baird v. Fortune, 7 Jur. n. s. 926.] The
rules of interpretation of Wills, in Vice-
Chancellor Wigram's admirable treatise
on that subject, may be safely applied,
mutaio nomine, to all other private instru-
ments. They are contained in seven
propositions, as the result both of prin-
ciple and authority, and are thus ex-
pressed : — "I. A testator is always pre-
sumed to use the words, in which he
expresses himself, according to their strict
and primary acceptation, unless, from the
context of the will, it appears that he has
used them in a different sense ; in which
case, the sense in which he thus appears
to have used them will be the sense in
which they are to be construed. II.
Where there is nothing in the context
of a will, from which it is apparent that
a testator has used the words, in which he
has expressed himself, in any other than
their strict and primary sense, and where
his words so interpreted are sensible with
reference to extrinsic circumstances, it is
an inflexible rule of construction, that the
words of the will shall be interpreted in
tlieir strict and primary sense, and in no
other, although they may be capable of
some popular or secondary interpretation,
and although the most conclusive evi-
ience of intention to use them in such
Popular or secondary sense be tendered.
II. Where there is nothing in the con-
text of a will, from which it is apparent
that a testator has used the words, in
which he has expressed himself, in any
other than their strict and primary sense,
but his words so interpreted are insensible
with reference to extrinsic circumstances,
a court of law may look into the extrinsic
circumstances of the case, to see whether
the meaning of the words be sensible in
any popular or secondary sense, of which,
with reference to these circumstances,
they are capable. IV. Where the char-
acters, in which a will is written, are diffi-
cult to be deciphered, or the language of
the will is not understood by the court,
the evidence of persons skilled in de-
ciphering writing, or who understand the
language in which the will is written, is
admissible to declare what the character*
are, or to inform the court of the proper
meaning of the words. V. For the pur-
pose of determining the object of a testar
tor's bounty, or the subject of disposition,
or the quantity of interest intended to be
given by his will, a court may inquire
into every material fact relating to the
person, who claims to be interested under
the will, and to the property, which is
claimed as the subject of disposition, and
to the circumstances of the testator and
of his family and affairs ; for the purpose
of enabling the court to identify the pei^
son or thing intended by the testator, or
to determine the quantity of interest he
has given by his will. The same (it is
conceived) is true of every other disputed
point, respecting which it can be shown,
that a knowledge of extrinsic facts can
in any way be made ancillary to the
right interpretation of a testator's worda.
VI. Where the words of a will, aided by
evidence of the material facts of the case,
are insufficient to determine the testator's
meaning, no evidence will be admissible
to prove what the testator intended, and
the will (except in certain special cases —
see Proposition VII. ) will be void for un-
certainty. VII. Notwithstanding the rule
of law, which makes a will void for un-
certainty, where the words, aided by evi-
dence of the material facts of the case, are
insufficient to determine the testator's
meaning, courts of law, in certain special
CHAP. XT.J ADMISSIBILITY OF PAEOL EVIDENCE.
325
view, evidence must be admissible, of all the circumstances sur-
rounding; the author of the instrument.^ In the simplest sase
that can be put, namely, that of an instrument appearing on the
face of it to be- perfectly intelligible, inquiry must be made for
a subject-matter to satisfy the description. If, in the conveyance
of an estate, it is designated as Blackacre, parol evidence must bo
admitted to show what field is known by that name. Upon the
same principle, where there is a devise of an estate purchased
of A, or of a farm in the occupation of B, it must be shown by
extrinsic evidence what estate it was that was purchased of A, or
what farm was in the occupation of B, before it can be known
what is devised.^ So, if a contract in writing is made, for extend-
ing the time of payment of " certain notes," held by one party
against the other, parol evidence is admissible to show what notes
were so held and intended.^
§ 288. It is only in this mode that parol evidence is admissibl*
(as is sometimes, but not very accurately said), to explain written
instruments ; namely, by showing the situation of the party in all
cases, admit extrinsic evidence of inten-
tion, to malje certain the person or thing
intended, where the description in the
will is insutiicient for tlie purpose. These
cases may be thus detineJ : where the
object of a testator's bounty, or the sub-
ject of disposition (i.e. person or thing
intended) is described in terms which are
applicable indifferently to more than one
person or thing, evidence is admissible to
prove which of the persons or things so
described was intended by tlie testator."
See Wigram on the Admission of Extrin-
sic Evidence in aid of tlie Interpretation
of Wills, pp. 11-14. See also Guy v.
Sharp, 1 M. & K. 602, per Ld. Brougham,
C. [ima, vol. 2, § 071. For Mr. Powell's
rules for the construction of devises, see
2d Pow. on Dev. by Jarman, pp. 5-11 ;
Cruise's Wig. (Greenleaf's edit.) tit. 38,
ch. 9, §§ 1-15, and notes ; 2d Greenleaf's
edit. (1857) &c., vol. 3, pp. 172-179, and
notes.]
1 I'he propriety of admitting such evi-
dence in order to ascertain the meajiing
of doubtful words or expressions in a will,
is expressly conceded by Marshall, C. J.,
in Smith v. Bell, 6 Peters, 75. See also
Woostur V. Butler, 13 Conn. 817 ; Bald-
win V. Carter, 17 Conn. 201 ; Brown v.
Slater, 16 Conn. 192 ; Marshall's Appeal,
2 Barr, 388; Stoner's Appeal, Id. 428;
The Great Northern Railw. Co. v. Harri-
son, 16 Jur. 565; 14 Eng. L. & Eq. E.
VOL. I. 28
195, per Parke, B. If letters are offered
against a party, it seems he may read his
immediate replies ; Eoe v. Day, 7 C. & P.
705 ; and may prove a previous conver-
sation with the party to show the motive
and intention in writing tliem. Reay v
Richardson, 2 C. M. & K. 442; supra,
§197.
•^ Sanford v. Eaikes, 1 Mer. 646, 653,
per Sir W. Grant; Doe d. I'reedy v.
Horton, 4 Ad. & El. 76, 81, per Coleridge,
J. ; Doe V. Martin, 4 B. & Ad. 771, per
Parke, J. " Whether parcel, or not, of
the thing demised, is always matter of
evidence." Per Buller, J., in Doe v. Burt,
1 T. R. 704, R. ace. in Doe v. E. of Jer-
sey, 3 B. & C. 870 ; Doe v. Chichester, 4
Dow's P. C. 65; 2 Stark. Evid. 558-561;
[infra, § 401, and notes. So, a deed of
land known by the name of the " mill
spot," may be explained by parol evi-
dence of what " the mill spot " was com-
monly reputed, at and before the time of
the execution of the deed, to include.
Woods V. Sawin, 4 Gray, 322. So, an
agreement in writing to convey " the
wharf and flats occupied by A, and owned
by B," may be applied to the subject-mat-
ter by parol. Gerrish v. Towne, 3 Gray,
82, 88. So, " the Schermerhorn brick-
yard." Seaman v. Hogeboom, 21 Barb.
398. See also Eussel v. Werntz, 24 Penn.
St. E. 337.]
" BeU V. Martin, 8 Harrison, E. 167.
32b
LAW OP EVIDENCE.
fPAET n.
his relations to persons and things around him, or, as elsewhere
expressed, by proof of the surronnding circumstances. Thus, if
the language of the instrument is applicable to several persons,
to several parcels of land, to several species of goods, to several
monuments or boundaries, to set eral, writings ; ^ or the terms be
vague and general, or have divers meanings, as " household furni-
ture," "stock," "freight," "factory prices," and the like;^ or in
a will, the words " child," " children," " grandchildren," " son,"
" family," or " nearest relations," are employed;^ in all these and
the like cases, parol evidence is admissible of any extrinsic circum-
stances, tending to show what person or persons, or what things,
were intended by the party, or to ascertain his meaning in any
other respect ; * and this, without any infringement of the rule,
which, as we have seen, only excludes parol evidence of other lan-
guage, declaring his meaning, than that which is contained in the
instrument itself.
1 Miller v. Travers, 8 Bing. 244; Sto-
rer v. Ereeman, 10 Mass. 435 ; Waterman
V. Johnson, 13 Pick. 261 ; Hodges v. Hors-
fall, 1 Rus. & My. 116; BiUon v. Harris,
4 Bligli, N. s. 843, 356 ; Paries v. The Gen.
Int. Assur. Co. 5 Pick. 34 ; Coit v. Stark-
weather, 8 Conn. 289 ; Blake v. Doherty,
5 Whoiton, 859 ; 2 Stark. Eyid. 558-561.
[Storer v. Elliot Eire Insurance Co. 45
Maine, 175.]
2 Peisch V. Dickson, 1 Mason, 10-12,
per Story, J. ; Pratt v. Jackson, 1 Bro. P.-
C. 222; Kelly v. Powlet, Ambl. 610;
Bunn V. Wintlirop, 1 Johns. Oh. 329 ; Le
Earrant v. Spencer, 1 Ves. 97 ; Colpoys,
V. Colpoys, Jacob's R. 451 ; Wigram on
Wills, p. 64; Goblet v. Beechey, 3 Sim.
24 ; Barrett v. Allen, 1 Wilcox, 426 ;
Arery v. Stewart, 2 Conn. 69; Williams
V. Gilman, 3 Greenl. 276.
8 Blackwell o. Bull, 1 Keen, 176 ;
Wylde's case, 6 Co. 16 ; Brown v. Thorn-
dike, 15 Pick. 400; Richardson v. Wat-
son, B. & Ad. 787. See also Wigram on
Wills, p. 58 ; Doe v. Joinville, 3 East,
172; n:ecr, o. Howard, 1 Bro. Ch. R. 82;
Leigli 0. Leigh, 15 Ves. 92 ; Beachcroft v.
Beachc:ioft, 1 Madd. R. 430.
* Goodings v. Goodings, 1 Ves. 231 ;
Jeacock v. Ealkener, 1 Bro. Ch. R. 295 ;
Fonniireau w. Poyntz, Id. 473 ; Machell v.
V/inter, 3 Ves. 540, 541 ; Lane o. Ld.
Stanhope, 6 T. R. 345; Doe v. Huth-
waite, 3 B. & Aid. 632; Goodright v.
Downshire, 2 B. & P. 608, per Ld. Alvan-
ley; Landsowne c Landsowne, 2 Bligh,
60; Clementson v. Gaudy, 1 Keen, 809;
King !'. Badeley, 3 My. & K. 417. So,
parol evidence 's admissible to show wliat
debt was referred to, in a letter of collat-
eral guaranty. Drummond v. Prestman,
12 Wheat. 515. So, to show that ad-
vances, which had been made, were in
fact made upon the credit of a particular
letter of guaranty. Douglass v. Reynolds,
7 Pet. 113. So, to identify a note, which
is provided for in an assignment of the
debtor's property for the benefit of his
creditors, but which is misdescribed in
the schedule annexed to the assignment.
Pierce v. Parker, 4 Met. 80. So, to show
that the indorsement of a note was made
merely for collateral security. Dwight v.
Linton, 3 Rob. (Louis.) R. 57. See also
Bell V. Eiremen's Ins. Co. Id. 423, 428,
where parol evidence was admitted of an
agreement to sell, prior to the deed or act
of sale. So, to show what flats were occu-
pied by the riparian proprietor as appur-
tenant to his upland and wharf, and passed
with them by the deed. Treat v. Strick-
land, 10 Shepl. 234. [Parol evidence may
be introduced to show what persons were
meant by the designation of " Horace
Gray and others," in a written agreement.
Herring v. Boston Iron Co. 1 Gray, 134;
and to show the circumstances attending
the giving a written certificate of compe-
tency tp teach school. Hopkins v. School
District, 1 Williams, 281. So, also, where
a note had on it the following indorse-
ments : " Greenwood & Nichols — without
recourse — Asa Perley," the first indorsers
were allowed to prove that the words
" without recourse," were written by them
when they indorsed the note. Fitchburg
Bank v. Greenwood, 2 Allen, 484. See
also Rey v, Simpson, :
CHAP. XV.] ADMISSIBILITY OF PAROL BVIDBNCB. 327
[*288a. Previous conversations between the parties may be
shown, when that becomes important to show in what sense subse-
quent writings passing between them were understood.^ So, when
a written memorandum is so brief that, without material explana-
tion of the terms, it would have no sensible meaning, parol proof
must be received for that pujrpose.^ So, parol proof is always ad-
missible to show which of two or more persons or things of the
same name was intended by the parties, as where cotton is sold to
arrive by ship "Peerless" from Bombay, and two ships of that
name sailed from that port, at different dates. ^
[*2885. A question has sometimes been made in regard to the
tribunal which must determine the correct reading of a written
paper. It seems formerly to have been referred exclusively to
the court. But that was owing mainly to the consideration that
the jury were often wholly illiterate. Accordingly now, when
jurors are supposed to be competent to read and write as well as
the court, we apprehend it has become, ultimately, a question for
them to determine, where there is any fair ground of doubt, since
no one can doubt, that it is exclusively a question of fact, as
much as any other.* But where the reading of the paper is undis-
puted, the question of construction cannot be submitted to the
jury, except so far as it is liable to be affected by extraneous cir-
cumstances which are in controversy. In such cases the court
may fix the construction, in the alternative, and thus refer the
matter of faith to the jury.^]
§ 289. In regard to wills, much greater latitude was formerly
allowed, in the admission of evidence of intention, than is war-
ranted by the later cases. The modern doctrine on this subject,
is nearly or quite identical with that which governs in the inter-
pretation of other instruments ; and is best stated in the language
of Lord Abinger's own lucid exposition, in a case in the Ex-
chequer.^ " The object," he remarked, " in all cases is to discover
1 P Macdonald v. Longbottom, 1 Ellis Hiscocks against John Hiscocks. The
& Elhs, 977. question turned on the words of a devise
^ Pharaoh v. Lush, 2 F. & P. 721. in the will of Sinaon Hiscocks, the grand-
" Raffles V. Wichelhaus, 2 H. & C. father of the lessor of the plaintiif and of
906 ; s. c. 33 Law J. 160. the defendant. By his will, Simon His-
* Hills V. London Gas Co., 27 L. J. cooks, after devising estates to his son
Exch. 60. Simon for life, and from and after his
^ Morse v. Weymouth, 28 Vt. E. 824.1 death, to his grandson, Henry Hiscocks,
'• Hiscocks V. Hiscocks, 5 M. & W. in tail male, and making, as to certain
363, 367. This was an action of eject- other estates, an exactly similar provision
ment, hrought on the demise of Simon in favor of his son John for life; then.
328 LAW OF EVIDENCE. [PAET 11.
the intention of the testator. The first and most obvious mode
of doing this is to read his will as he has written it, and collect
his intention from his words. But as his words refer to facts and
circumstances, respecting his property and his family, and others
whom ho names or describes in his will, it is evident that the ,
meaning and application of his words cannot be ascertained, with-
out evidence of all those facts and circumstances.^ To understand
the meaning of any writer, we must first be apprised of the persons
and circumstances that are the subjects of his allusions or state-
ments ; and if these are not fully disclosed in Ms work, we must
look for illustration to the history of the times in which he wrote,
and to the works of contemporaneous authors. All the facts and
circumstances, therefore, respecting persons or property, to wliich
the will relates, are undoubtedly legitimate, and often necessary
evidence, to enable us to imderstand the meaning and application
of his words. Again, the testator may have habitually called
certain persons or things by peculiar names, by which they were
not commonly known. If these names should occur in his will,
they could only be explained and 'construed by the aid of evidence,
to show the sense in which he used them, in like manner as if
his will were written in cipher, or in a foreign language. The
habits of the testator, in these particulars, must be receivable as
evidence, to explain the meaning of his will. But there is another
mode of obtaining the intention of the testator, which is by evi-
dence of his declarations, of the instructions given for his will,
and other circumstances of the like nature, which are not adduced
for explaining the words or meaning of the will, but either to
supply some deficiency, or remove some obscurity, or to give some
effect to expressions that are unmeaning or ambiguous. Now,
there is but one case in which it appears to us that this sort of
evidence of intention can properly be admitted, and that is, where
the moaning of the testator's words is neither ambiguous nor
after his death, the testator devised those soription, apply to either the lessor ot
estates to " my grandson, John Hiscocks, the plaintiff, who was the eldest son, but
eldest son of the said John Hiscocksi" whose name was Simon, nor to the de-
It was on this devise that the question fendant, who, though his name was Jdhn,
wholly turned. In fact, John Hiscocks, was not the eldest son.
the father, had been twice married; by i See Crocker v. Crocker, II Piik.
his first wife ■ he had Simon, the lessor 257 ; Lamb v. Lamb, Id. 375, per Shaw,
of the plaintiff, his eldest son; the eldest C. J.; Baiubridge v. Wade, 20 Law J.
eon of the second marriage was John Rep. (n. s.) Q. B. 7; I Ecg. L. & Eq,
Hiscocks, the defendant. The devise. Rep. 286.
therefore, did not, both by name and de-
CHAl'. XV.J ADMISSIBILITY OP PAROL EVIDENCE.
329
obscure, and where the devise is, on the face of it, perfect and
intelligible, but, from some of the circumstances admitted in proof,
an ambiguity arises as to which of the two or more things, or
which of the two or more persons (each answering the words in
the will), the testator intended to express. Thus, if a testator
devise his manor of S. to A. B., and has two manors of North S.
and South S., it being clear he means to devise one only, whereas
both are equally denoted by the words he has used, in that case
there is what Lord Bacon calls ' an equivocation,' that is, the
words equally apply to either manor ; and evidence of previous
intention may be received to solve this latent ambiguity, for the
intention shows what he meant to do ; and when you know that,
you immediately perceive that he has done it, by the general words
he has used, which in their ordinary sense, may properly bear
that construction. It appears to us that, in all other cases, parol
evidence of what was the testator's intention ought to be excluded,
upon this plain ground, that his will ought to be made in writing.;
and if his intention cannot be made to appear by the writmg, ex-
plained by circumstances, there is no will." ^
1 The learned chief baron's subsequent
commentary on the opposing decisions
seems, in a great measure, to have ex-
hausted this topic. " It must be owned,
however," said he, " that there are de-
cided cases whicli are not to be recon-
ciled with this distinction, in a manner
altogether satisfactory. Some of them,
indeed, exhibit but an apparent incon-
sistency. Thus, for example, in the case
of Doe V. Huthwaite, and JBradshaw v.
Bradshaw, the only thing decided was,
that, in a case like the present, some
parol evidence was admissible. There,
however, it was not decided that evidence
of the testator's intention ought to be
received. The decisions, when duly con-
sidered, amount to no more than this, that
where the words of the devise, in their
primary sense, when applied to the cir-
cumstances of the family and the pro-
j)erty, make the devise insensible, collat-
eral facts may be resorted to, in order to
show that, in some secondary sense of the
words, — and one in which the testator
meant to use them, — the devise may have
a full effect. Thus again, in Cheyney's
case, and in Counden o. Clarke, ' the
averment is taken,' in order to sliow
which of two persons, both equally de-
scribed within the words of tlie will, was
intended by the testator to take the es-
tate ; and the late cases of Doe d. Morgan
V. Morgan, and Doe d. Gord v. Needs,
both in tills court, are to the same effect.
So, in the case of Jones v. Newman, ac-
cording to the view the court took of the
facts, the case may he referred to tlie same
principles as the former. The court seems
to have thought the proof equivalent only
to proof of there being two J. C.'s stran-
gers to each other, and then the decision
was right, it being a mere case of what
Lord Bacon calls equivocation. The cases
of Price v. Page, Still v. lloste, and Care-
less V. Careless, do not materially vary in
principle from those last cited. They
differ, indeed, in this, that the equivalent
description is not entirely accurate ; but
they agree in its being (although inac-
curate) equally applicable to each claim-
ant; and they all concur in this, that the
inaccurate part of the description is either,
as in Price v. Page, a mere blank, or, as
in the other two cases, applicahle to no
person at all. Tliese, tliereforc, nr\y
fairly be classed also as cases of equiv(>c:(r
tion ; and in that case, evidence of the
intention of tlie testator seems to ln' le-
ceivable. But tliere are other cases imt
so easily explained, and which n'cni at
variance with the true principles of evi-
dence. In Sclwood V. Mildniiiy, eviiU'iica
of instructions for the will was recoi vcd
28*
830
LAW OF EVIDENCE.
[PABI II.
§ 290. From the above case, and two other leading modern
decisions,^ it has been collected,^ (1.) that where the description
in the will, of the person or thing intended, is applicable with legal
That case was doubted in Miller v. Tra-
vers ; tut, perhaps, haying been put by
the Master of the Bolls as one analogous to
that of the devise of all a testator's free-
hold houses in a given place, where the
testator had only leasehold houses, it
may, as suggested by Lord Chief Justice
Tindal, in Miller v. Travers, be consid-
ered as being only a wrong application to
the facts of a correct principle of law.
Again, in Hampshire v. Pierce, Sir John
Strange admitted declarations of the in-
tentions of the testatrix to be given in
evidence, to show that by the words, ' the
four children of my niece Bamfield,' she
meant the four children by the second
marriage. It may well be doubted wheth-
er this was right, but the decision on
the whole case was undoubtedly correct ;
for the circumstances of the family, and
tTieir ages, which no doubt were admissi-
ble, were quite suiBcient to have sus-
tained the judgment, without the ques-
tionable evidence. And it may be further
observed, that the principle with which
Sir J. Strange lis said to have commenced
his judgment is stated in terms much too
large, and is so far inconsistent with later
authorities. Beaumont v. Fell, though
somewhat doubtful, can be reconciled
with true principles upon this ground,
that there was no such person as Cath
erine Earnley, and that the testator was
accustomed to address Gertrude Yardley
by the name of Gatty. This, and other
circumstances of the like nature, which
were clearly admissible, may perhaps be
considered to warrant that decision ; but
there the evidence of the testator's dec-
larations, as to his intention of providing
for Gertrude Yardley, was also received ;
and the same evidence was received at
Nisi Prius, in Thomas v. Thomas, and
approved on a motion for a new trial, by
the dicta of Lord Kenyon and Mr. Justice
Lawrence. But these cases seem to us at
variance with the decision in Miller v.
Travers, which is a decision entitled to
great weight. If evidence of intention
could be allowed for the purpose of show-
ing, that by Catherine Earnley and Mary
Thomas, the respective testators meant
Gertrude Yardley and Elinor Evans, it
might surely equally be adduced to prove,
that by the county of Limerick a testator
meant the county of Clare. Yet this was
rejected, and we think rightly. We are
prepared on this point (the point in judg-
ment in the case of Miller v. Travers), to
adhere to the authority of that case.
Upon the whole, then, we are of opinion
that, in this case, there must be a new
trial. "Where the description is partly
true as to both claimants, and no case of
equivocation arises, what is to be done is
to determine whether the description
means the lessor of the plaintiff or the
defendant. The description, in fact, ap-
plies partially to each, and it is not easy
to see how the difficulty can be solved.
If it were res Integra, we should be much
disposed to hold the devise void for un-
certainty ; but the cases of Doe v, Huth-
waite, Bradshaw v. Bradshaw, and others,
are authorities against this conclusion.
If, therefore, by looking at the surround-
ing facts to be found by the jury, the
court can clearly see, with the knowledge
which arises from those facts alone, that
the testator meant either the lessor of the
plaintiff or the defendant, it may so de-
cide, and direct the jury accordingly ; but
we think that, for this purpose, they can-
not receive declarations of the testator of
what he intended to do in making his
will. If the evidence does not enable the
court to give such a direction to the jury,
the defendant will indeed for the present
succeed ; but the claim of the heir-at-law
will probably prevail ultimately, on the
ground that the devise is void for uncer-
tainty."
1 Miller v, Travers, 8 Bing. 244, and
Doe d. Gord v. Needs, 2 M. & W. 129.
The rule on this subject was thus stated
by Tindal, C. J. : " In all cases where a
difficulty arises in applying the words of
a wiU or deed to the subject-matter of a
devise or grant, the difficulty or ambigu-
ity, which is introduced by the admission
of extrinsic evidence, may be rebutted or
removed by the production of further evi-
dence upon the same subject, calculated
to explain what was the estate or subject-
matter really intended to be granted or
devised." Miller v. Travers, supra, ex-
pressly recognized and approved in At-
kinson V. Cummins, 9 How. s. c. Rep.
479. The same rule is applied to the
monuments in a deed, in Clough v. Bow-
man, 15 N. Hamp. 504.
^ By Vice-Chancellor Wigram, in his
Treatise on the Interpretation of WiUa,
pi. 184, 188. See also Gresloy on Evii
203.
CHAP. XV.] ADMISSIBILITY OP PAEOL EVIDENCE. 331
certainty to each of several subjects, extrinsic evidence is admissible
to prove, which of sucli subjects was intended by the testator.
But (2.) if the description of the person or thing be wholly inap-
flicahle to the subject intended, or said to be intended by it, evi-
dence is not admissible to prove whom or what the testator really
intended to describe. His declarations of intention, whether made
before or after the making of the will, are alike inadmissible.^
Those made at the time of making the will, when admitted at all,
are admitted under the general rules of evidence applicable alike
to all written instruments.^
§ 291. But declarations of the testator, proving or tending to
prove a material fact collateral to the question of intention, where
such fact would go in aid of the interpretation of the testator's
words, are, on the principles already stated, admissible. These
cases, however, will be found to be those only, in which the
description in the will is unambiguous in its application to any
one of several subjects.^ Thus, where lands were devised to John
Cluer of Calcot, and there were father and son of that name, parol
evidence of the testator's declarations, that he intended to leave
them to the son, was held admissible.* So, where a legacy was
1 Wigram on "Wills, pi. 104, 187 ; subject of disposition (i. e. the person or
Brown v. Saltonstall, 3 Met. 423, 426; thing intended), is described in terms
Trustees, &c. u. Peaslee, 15 N. Hamp. which are applicable indifFerently to more
317, 830. than o-ne person or thing." Id. pi. 211, 212,
2 |-» ^Yg jjave examined the cases Tery 213, 214. And he insists, " (1.) That the
extensively upon this question. Kedfield judgment of a court, in expounding a
on Wills, §§ 89, 40, 41.] will, should be simply declaratory of what
* Wigram on Wills, pi. 104, 194,195. is m the instrument ; and (2.), That every
This learned' writer's General Conclusions, claimant under a will has a right to re-
as the result of the whole matter, which quire that a court of construction, in the
he has so ably discussed in the treatise execution of its office, shall — by means
just cited, are "(1.) That the evidence of extrinsic evidence' — place itself in the
of material facts is, in all cases, ad- situation of the testator, the meaning of
missible in aid of the exposition of a whose language it is called upon to de-
will. (2.) That the legitimate purposes clare." Id. pi. 5, 96, 215. Doe v. Martin,
to wliich — in succession — such evidence 1 N. & M. 524, per Parke, J. ; 4 B. & Ad.
is applicable, are two: namely, Jirst, to 771, s. c; Guy v. Sharp, 1 M. & K. 602,
determine whether the words of the will, per Ld. Brougham, C. See also Boys v.
with reference to the facts, admit of being Williams, 2 Euss. & M. 689, where parol
construed in their primary sense ; and, evidence of the testator's property and
secondly, if the facts of the case exclude the situation was held admissible, to deter-
primary meaning of the words, to deter- mine whether a bequest of stock was in-
miue whether the intention of the testator tended as a specific or a pecuniary legacy,
is certain in any other sense, of which the These rules apply with equal force to the
words, with reference to the facts, are interpretation o£ every other private in-
capable. And (3.), That intention can- strument.
not be averred in support of a will, except * Jones v. Newman, 1 W. Bl. 60. See
in the special cases, which are stated also Doe v. Benyon, 4 P. & D. 193 ; Doe
under the Seventh Proposition ; " (see su- v. Allen, 4 P. & D. 220. But where the
pra, § 287, note, ) namely, cases " where testator devised to his " grandson Rufus,"
the jbjeot of a testator's bounty, or the and there were two of that name, the one
332
LAW OP EVIDENCE.
[part n,
given to " the four children of A." wlio had six children, two by
a first, and four by a second marriage, parol evidence of declara-
tions by the testatrix, that she meant the latter four, was held
admissible.! So, where the devise was, "to my granddaughter,
Mary Thomas of Llecbloyd in Merthyr parish," and the testator
had a granddaughter named Elinor Evans in that parish, and
a great-granddaughter, Mary Thomas, in the parish of Llangain ;
parol evidence of the testator's declarations at the time of making
the will was received, to show which was intended.^ So, where
a legacy was given to Catherine Earnley, and there was no person
of that name ; but the legacy was claimed by Gertrude Yardley ;
parol proof was received, that the testator's voice, when the
scrivener wrote the will, was very low, that he usually called the
legatee Gatty, and had declared that he would do well by her in
his will ; and thereupon the legacy was awarded to her.^ So,
also, where a devise was to " the second son of Charles Weld, of
Lulworth, Esq.," and there was no person of that name, but the
legitimate who lived in a foreign land, and
whom he had seen only once and when a
child, and the other illegitimate, living
with Iiim, and whom lie had brofight up
and educated ; it was held, that the words
were legally applicable only to the legiti-
mate grandson, and tli^t parol evidence to
the contrary was not admissible. Doe v.
Taylor, 1 Allen, 425 (N. Bruns.), Street,
J., dissentiente.
1 Hampshire v. Pierce, 2 Ves. 216.
2 Tliomas v. Tlionias, 6 T. R. 671.
8 Beaumont v. Fell, 2 P. Wms. 141.
The propriety of receiving evidence of
the testator's declarations, in either of the
two last-cited cases, was,, as we have just
seen {supra, § 239, note), strongly ques-
tioned by Lord Abinger (in Hiscocks v.
Hiscocks, 5 Mees. & Welsh. 371), who
thought them at variance, in this partic-
jUlar, with tlie decision in Miller v. Trav-
erse, 8 IJlng. 244, which, he observed,
was a decision entitled to great weight.
But upon tlie case of Beaumont v. Fell, it
has been correctly remarked, that " the
evidence, which is confessedly admissible,
would. In conjunction with the will itself,
show that there was a devise to Catherine
Earnley, and that no suoji person existed,
but that tliere was a claimant named Ger-
trude Yardley, whom the testator usually
called Gatty. In this state of the case,
the question would be, whether, upon the
principle of falsa demonstratio non nocet,
tlie surname of Earnley being rejected,
the christian name, if correct, would itself
be a sufficient indication of the devisee ;
and if so, whether Gatty satisfied that
indication. Both these questions leave
untouched the general question of the
admissibility of evidence, to show the pro-
cess by which Gatty passed into Katty,
and from Katty to Catherine." See Phil.
& Am. on Evid. p. 729, note (2). It is
not easy, however, to perceive why ex-
trinsic evidence of the testator's declared
intentions of beneficence towards an indi-
vidual is not as admissible, as evidence is,
that he used to speak of him or address
him as his son, or godson, or adopted
child ; when the object in both cases is to
ascertain which, of several demonstra-
tions, is to be retained iis true, and wliich
rejected as false. Now the evidence of
such declarations, in Beaumont v. Fell,
went to show that " Earnley " was to be
rejected a.s falsa demonstratio ; and the other
evidence went to designate the individual
intended by the word " Catlierine ; " not
by adding words to the will, but by show-
ing what the word used meant. See infra,
§ 300 ; Wigram on the Interpretation of
"Wills, pp. 128, 129, pi. 166. See also
Baylis v. The Attor.-Gen. 2 AtV. 23D;
Abbott V. Massie, -3 Ves, 148; Doe d.
Oxenden v. Chichester, 4 Dow's P. C. 65,
93 ; Duke of Dorset v. Ld. Hawarden, 3
Curt. 80 ; Trustees, &c., v. Peaslee, 15 N.
Hamp. 317; Doe v. Hubbard, 15 Ad &
El. (n. s.) 248, per Ld. CampbeU.
CHAP. XT.J ADMISSIBILITY OF PAROL EVIDENCE. 333
testator had two relatives there, bearing the names of Joseph
Wold, and Edward-Joseph Weld, it was held, upon the context
of the will, and upon extrinsic evidence, that the second son of
Joseph Weld was the person intended. So, where a bequest was
to John Newholt, second son of William-Strangways Newbolt,
Vicar of Somerton ; and it appeared aliunde that the name of the
vicar was William-Robert Newbolt, that his second son was Henry-
Robert, and that his third son was John-Pryce ; it was held that
.John-Pryce was entitled to the legacy .^ So, where the testatrix
gave legacies to Mrs. and Miss B. of H., widow and daughter of
the Rev. Mr. B. ; upon the legacies being claimed by Mrs. and
Miss W., widow and daughter of the late Rev. Mr. W. of H., it
was held, that they were entitled ; it appearing aliunde that there
were no persons literally answering the description in the will,
at its date ; but that the claimants were a daughter and grand-
daughter of the late Rev. Mr. B., with all of whom the testatrix
had been intimately acquainted, and that she was accustomed to
call the claimants by the maiden name of Mrs. W.^ The general
principle in all these cases is this, that if there be a mistake in the
name of the devisee, but a right description of him, the court may
act upon such right description ; ^ and that if two persons equally
answer the same name or description, the court may determine,
from the rest of the will and the surrounding circumstances, to
which of them the will, applies.*
§ 292. It is further to be observed, that the rule under con-
sideration, which forbids the admission of parol evidence to contra-
dict or vary a written contract, is not infringed by any evidence
of known and established usage respecting the subject to which the
contract relates. To such usage, as well as to the lex loci, the
parties may be supposed to refer, just as they are presumed to
employ words in their usual and ordinary signification ; and ac-
cordingly the rule is in both cases the same. Proof of usage is
admitted, either to interpret the meaning of the language of the
contract, or to ascertain the nature and extent of the contract,
1 Newbolt V. Pryce, 14 Sim. 354. whom surviyed him ; and he devised an
^ Lee V. Fain, 4 Hare, 251 ; 9 Jur. 24. estate to his " dear wife Caroline," the
' On the other hand, if the name is latter was held entitled to take, though
right, but the description is wrong, the she was not the true wife. Doe v. Roast,
name will be regarded as the best evi- 12 Jur. 99.
dence of the testator's intention. Thus, * Blundell v. Gladstone, 1 Phil. Ch. R,
wh^re the testator had married two wives, 279, 288, per Patteson, J.
Mary and Caroline, successively, both of
334 LAW OF EVIDENCE. [PAET n.
in the absence of express stipulations, and wliere the meaning is
equivocal and obscure. ^ Thus, upon a contract for a year's ser-
vice, as it does not in terms bind the party for every day in the
year, parol evidence is admissible to show a usage for servants to
have certain holidays for themselves.^ So, where the contract was
for performance as an actor in a theatre, for three years, at a cer-
tain sum per week, parol evidence was held admissible to show
that, according to uniform theatrical usage, the actor was to be
paid only during the theatrical season, namely, during tlie time
while the theatre was open for performance, in each of those
years. ^ So, where a ship is warranted " to depart with convoy,"
parol evidence is admissible to show at what place convoy for
such a voyage is usually taken ; and to that place the parties are
presumed to refer.* So, where one of the subjects of a charter-
party was " cotton in bales," parol evidence of the mercantile use
and meaning of this term was held admissible.® So, where a
promissory note or bill is payable with grace, parol evidence of
the known and established usage of the bank at which it is paya-
ble is admissible to show on what day the grace expired.^ But
though usage may be admissible to explain what is doubtful, it is
not admissible to contradict what is plain.'^ Thus, wliere a policy,
was made in the usual form, upon tlae ship, her tackle, apparel,
boats, &c., evidence of usage, that the underwriters never pay for
the loss of boats slung upon the quarter, outside of the sliip, was
held inadmissible.^ So, also, in a libel in rem upon a bill of lading,
1 2 Poth. on Obi. by Evans, App. No. der, 12i, 6 ms.," it may be shown that
xvi. p. 187 ; 2 Sumn. 569, per Story, J. ; among dealers in madder, in such a con-
11 Sim. 626, per Parke, B. ; 4 East, 135, tract 12i means 12^ cents per pomid, and
per Ld. Ellenborough ; Cutter v. Powell, expresses the price of the madder. Dana
6 T. E. 320 ; Vallance v. Dewar, 1 Campb. v. Fielder, 2 Kernan, 40 ; Brown v. Brooks
503 ; Noble v. Kennoway, 2 Doug. 510 ; 25 Penn. St. R. 210 ; Allan v. Comstoek,
Bottomley v. Forbes, 5 Bing. n. c. 121 ; 17 Geo. 554 ; Brown v. Byrne, 26 Eng
8 Scott, 866; Ellis v. Thompson, 3 M. & Law & Eq. 247.] [*And a similar rule
W. 445; post, vol. 2 [7th edit.], § 251, was applied to determining the mode of
[252, and notes.] The usage must be measuring the amount of freight in a bill
general in the whole city or place, or of lading. Russian Steam Nav. Co. u.
among all persons in the trade, and not Silva, 13 C. B. n. s. 610.]
the usage of a particular class only, or the » Renner v. Bank of Columbia, .9
course of practice in a particular office or Wheat, 581, where the decisions to this
bank, to whom or which the party is a point are reviewed by Mr. Justice Thomp
stranger. Gabay v. Lloyd, 3 B. & C. 793. son.
2 Regina v. Stoke upon Trent, 5 Ad. & 7 2 Cr. & J. 249, 250, per Ld. Lynd-
El. 303, N. s. hurst. [Oekicks v. Ford, 23 How. 49.1
8 Grant v. Maddox, 15 M. & W. 737. s Blackett v. The Royal Exch. As-
* LethuUer's case, 2 Salk. 443. surance Co. 2 Cr. & J. 244. So, where
' Taylor v. Briggs, 2 C. & P. 525. the written contract was for "prime singed
[Where part of a memorandum of sale bacon," and evidence was offered to prove,
was as follows: "Bought 150 tons mad- that by the usage of the trade a certain
CHAP. XV.] ADMISSIBILITY OP PAROL EVIDENCE.
335
containing the usual clause, '• the dangers of the seas only ex-
cepted," where it was articulated in the answer, that there was
an established usage, in the trade in question, that the ship
owners should see the merchandise properly secured and stowed,
and that this being done, they should not be liable for any
damages not occasioned by their own neglect ; it was held that
this article was incompetent, in point of law, to be admitted to
proof. ^
latitude of deterioration, called average
taint, was allowed to subsist, before the
bacon ceases to answer the description of
prime bacon; it was held inadmissible.
Yates V. Pym, 6 Taunt. 446. So also,
parol evidence has been held inadmissible
to prove, that by the words, " glass ware
in casks," in the memorandum of ex-
cepted articles iu a fire policy, according
to the common understanding and usage
of insurers and insured, were meant such
ware in open casks only. Bend o. The
Georgia Ins. Co., Sup. Court, N. York,
1842. But see Gray v. Harper, 1 Story,
R. 574, [infra, page 420 note.) [Whit-
more V. The South Boston Iron Co. 2
Allen, 52. Where in an action against
warehousemen for the non-delivery of
property bailed to them, the defence was,
that the property had been fraudulently
taken from their custody, without any
negligence on their part, and the plaintiff
did not claim that the property had in
feet been delivered to any person, evi-
dence of the usage of other warehouse-
men of taking receipts from persons to
whom property was delivered, is inadmis-
sible. Lichtenheiu v. Boston & P. K. R.
Co. 11 Cush. 70, 72. Had there been an
actual dehvery to a third person by the
warehouseman, qucere how far such evi-
dence of general usage might not be ad-
missible to show negUgence. Ib.l
1 The schooner "Reeside," 2 Sumn.
567. In this case the doctrine on this
subject was thus briefly but energetically
expounded and limited by Mr. Justice Sto-
ry: "I own myself," said he, " no friend
to the almost indiscriminate habit, of late
years, of setting up particular usages or
customs in almost all kinds of business
and trad.e, to control, vary, or annul the
general liabilities of parties under the com-
mon law, as well as under the commercial
law. It has long appeared to me, that
there is no small danger in admitting such
loose and inconclusive usages and cus-
toms, often unknown to particular parties,
and always liable to great misunderstand-
ings and misinterpretations and abuses,
to outweigh the well-known and well-
settled principles of law. And I rejoice
to find, that, of late years, the courts ol
law, both in England and in America,
have been disposed to narrow the limits
of the operation of such usages and cus
toms, and to discounter.'mce any further
extension of them. The true and appro-
priate office of a usage or custom is, to
interpret the otherwise indeterminate in-
tentions of parties, and to ascertain the
nature and extent of their contracts,
arising, not from express stipulations, but
from mere implications and presumptions,
and acts of a doubtful or equivocal charac-
ter. It may also be admitted to ascertain
the true meaning of a particular word, or
of particular words in a given instrument,
when the word or words have various
senses, some common, some q^ualified, and
some technical, according to the subject-
matter to which they are applied. But I
apprehend, that it never can be proper to
resort to any usage or custom, to control
or vary the positive stipulations in a writ-
ten contract, and, afortiori, not in order to
contradict them. An express contract of
the parties is always admissible to super-
sede, or vary, or control a usage or cus-
tom ; for the latter may always be waived
at the will of the parties. But a written
and express contract cannot be controlled,
or varied, or contradicted by a usage or
custom ; for that would not only be to ad-
mit parol evidence to control, vary, or
contradict written contracts, but it would
be to allow mere presumptions and impli-
cations, properly arising in the absence
of any positive expressions of intention, to
control, vary, or contradict the most for-
mal and deliberate written declarations of
the parties." See also Taylor v. Briggs,
2 C. & P. 525 ; Smith v. Wilson, 3 B. &
Ad. 728 ; 2 Stark. Evid. 565 ; Park on Ins.
ch. 2, pp. 30-60; post, vol. 2 [7th edit.], §
251; Hone v. Mutual Safety Ins. Co. 1
Sandf. s. c. R. 187. [Ware u. Hayward
Rubber Co. 3 Allen, 84; Symonds v.
Lloyd, 6 Com. B. Rep. (n. s.) 691 ; Winn
V. Chamberlain, 32 Vt. 318.] [»Beacon
Life & Eire Assurance Co. v. Gibb, 1 Moore,
P. C. C. N. s. 73 ; 9 Jur. n. s. 185.]
336 LAW OF EVIDENCE. [PART H.
§ 293. The reasons which warrant the admission of evidence
of usage in any case, apply equally, whether it be required to aid
the interpretation of a statute, a publio charter, or a private deed;
and whether the usage be still existing or not, if it wore contem-
poraneous with the instrument.^ And where the language of
a deed is doubtful in the description of the land conveyed, parol
evidence of the practical interpretation, by the acts of the parties,
is admissible to remove the doubt.^ So, evidence of former trans-
actions between the same parties has been held admissible to
explain the meaning of terms in a written contract, respecting
subsequent transactions of the same character.^
§ 294. Upon the same principle, parol evidence of usage or
custom is admissible " to annex incidents," as it is termed, that is,
to show- what things are customarily treated as incidental and
accessorial to the principal thing, which is the subject of the con-
tract, or to which the instrument relates. Thus, it may be shown
by parol that a heriot is duo by custom, on the death of a tenant
for life, though it is not expressed in the lease.* So, a lessee by
a deed may show that, by the custom of the country, he is entitled
to an away-going crop, though no such right is reserved in the
deed.^ So, in an action for the price of tobacco sold, evidence
was held admissible to show that, by the usage of the trade, all
sales were by sample, though not so expressed in the bought and
sold notes.^ This evidence is admitted on the principle, that the
parties did not intend to express in writing the whole of the con-
tract by which they were to be bound, but only to make their
contract with reference to the known and established usages and
1 WithneU v. Gartham, 6 T. B. 388; note (1); 1 Sugd. Vend. (6th edit.) 210,
Stammers u. Dixon, 7 East, 200 ; Wadley *178; Cambridge «. Lexington, 17 Pick.
V. Bayliss, 5 Taunt. 752; 2 Inst. 282; 222; Choate v. Burnham, 7 Piclc. 274;
Stradling v. Morgan, Plowd. 205, ad. calc.; Allen v. Kingsbury, 16 Pick. 239 ; 4
Haydon's case, 3 Co. 7 ; Wells v. Porter, 2 Cruise's Dig. tit. 32, eh. 20, § 23, note,
Bing. N. c. 729, per Tindal, C. J. ; Duke (Greenleaf s edit.) [2d edit. 1857, vol. 2.
of Devonshire v. Lodge, 7 B. & C. 36, 39, p. 598, and note.l
40; Chad v. Tilsed, 2 B. & B. 403 ; Attor- ' Bourne v. Gatliff, 11 CI. & Pin. 45,
ney-General v. Boston, 9 Jur. 838; 2 Eq. 69. 70. [See Bliven v. New England
Rep. 107, s. c; Farrar v. Stackpole, 6 Screw Co. 23 How. 420.] [*Ealkner v.
Greenl. 154; Meriam t. Harsen, 2 Barb. Earle, 3 B. & S. 360; s. c. 32 L. J. Q. B.
Ch. R. 232. 124.]
2 Stone V. Clark, 1 Metealf's R. 378; * White v. Sayer, Palm. 211.
Livingston v. Tenbroeck, 16 Johns. 14, 22, ^ Wigglesworth v. Dallison, 1 Doug.
23; Cook v. Booth, Cowp. 419. This last 201 ; 1 Smith's Leading Cas. 300 ; 1 Bligh,
ease has been repeatedly disapproved of, 287 ; Senior v. Armytage, Holt's N. P,
and may be considered as overruled ; not, Cas. 197 ; Hutton v. Warren, 1 M. & W.
however, in the principle it asserts, but 466.
in the application of the principle to that ° Syers v. Jonas, 2 Exch. R. 111.
case. See Phil. & Am. on Bvid. 747,
CHAP. XT.] ADMISSIBILITY OP PAROL EVIDENCE. 337
customs relating to the subject-matter. But, in all cases of this
sort, the rule for admitting the evidence of usage or custom must
be taken with this qualification, that the evidence be not repugnant
to, or inconsistent with, the contract ; for otherwise it would not go
to interpret and explain, but to contradict that which is written.^
This rule does not add new terms to the contract, which, as has
already been sliown,^ cannot be done ; but it shows the full extent
and meaning of those which are contained in the instrument.
§ 295. But, in resorting to usage for the meaning of particular
words in a contract, a distinction is to be observed between local
and technical words, and other words. In regard to words which
are purely technical, or local, that is, words which are not of
universal use, but are familiarly known and employed, either in
a particular district, or in a particular science or trade, parol evi-
dence is always receivable, to define and explain their meaning
among those who use them. And the principle and practice are
the same in regard to words which have two meanings, the one
common and universal, and the other technical, peculiar, or local ;
parol evidence being admissible of facts tending to show that the
v.'ords were used in the latter sense, and to ascertain their techni-
cal or local meaning. The same principle is also applied in regard
to words and phrases, used in a peculiar sense by members of
a particular religious sect.* But beyond this the principle does
1 Yeates v. Pirn, Holt's N. P. Cas. 95 ; were poor and piously disposed, and ot
Holding V. Pigott, 7 Bing. 465, 474 ; Black- the Protestant religion, and were able to
ett V. The Koyal.Exch. Assur. Co. 2 C. & repeat the Lord's Prayer, the Creed, and
J. 244 ; Caine v. Horsefall, 2 C. & K. 349. the Ten Commandments, and Mr. Edward
" Supra, § 281. Bowles's Catechism. It was alleged that
8 The doctrine on this subject has re- Lady Hewley, and all the trustees, whose
cently been very Mly reviewed, in the religious opinions could be ascertained,
case of Lady Hewley's charities. This believed in the doctrine of tlie Trinity,
lady, who was a non-conformist, in the the Atonement, and Original Sin. In the
year 1704, conveyed certain estates by course of time, however, the estates ba-
deeds, in trust, for the benefit of "poor came vested in trustees, the majority of
and godly preachers of Christ's Holy Gos- whom, though calling themselves Pres
pel," and their widows, and " for the en- byterians, professed Unitarian opinions,
couraging and promoting of the preaching and the fiinds had for some years been
of Christ's Holy Gospel," &c.; with the applied, to a considerable extent, for the
usual provision for preserving a perpetual support of a seminary, and for the benefit
succession of trustees. Afterwards, in of poor preachers of that denomination
1707, by other deeds to the same trustees. When the charity was founded, the Stat,
she made provision for the erection and 9 & 10 W. III., c. 32, against blasphemy,
support of a hospital or almshouse, for cer- was in force, by which those persons, who
tain descriptions of poor persons, ordain- by preaching denied the doctrine of tho
ing rules for the governnient of the house. Trinity, were liable to severe penalties,
and appointing the trustees as the visitors. The object of the suit was, in efiect, to
&c. ; and disposing of tlie surplus funds as take this trust out of the hands of the
in the deeds of 1704. The rules permit- Unitarians, and to obtain a declaration,
ted the admission of none but such as that It should be managed and applied by
TOi,. 1. 29
338
LAW OP EVIDBNCI,.
[PABT U.
not extend. If, therefore, a contract is made in ordinary and
popular language, to which no local or technical and peculiar
and for none but Orthodox Dissenters ;
and the controversy turned chiefly on the
question, whether certain evidence was
admissible, which was offered to show
what sort of persons were intended, in the
deed of 1704, by "godly preachers of
Christ's Holy Gospel," &c. This evi-
dence, in addition to the deed of 1707,
consisted principally of the will of Lady
Hewley, the sermon of Dr. Coulton, one
of the trustees, which was preached at
her funeral, and the will of Sir John Hew-
ley, her husband; all containing pas-
sages, showing that she and the trustees
were Presbyterians, beUeving in the Trin-
ity, tlie Atonement, and Original Sin;
together with the depositions of persons
conversant with the history and language
of the times wlien the deeds were exe-
cuted, defining the meaning then com-
monly attached to' the words in question,
by persons of the donor's faith ; and it was
argued that the persons whom she in-
tended to designate as beneficiaries could
have been only those of her own faith.
The Vice-Chancellor admitted this evi-
dence, and decreed that preachers of the
Unitarian doctrine and their widows were
not entitled to the benefit of tliis charity,
and he ordered that the existing trustees
should be removed and others appointed,
and that the charity should in future be
applied accordingly. This decree Lord
Ch. Lyndhurst, assisted by Patteson, J.,
and Alderson, B., afterwards affirmed.
An appeal being taken from the judg-
ment of Lord Lyndhurst, to the House
of Lords, the House, after taking the
opinions of the common-law judges, upon
certain questions proposed to them, dis-
missed the appeal. The first and princi-
pal of these questions was, whether the
extrinsic evidence adduced, or what part
of it, was admissible for the purpose of
determining who were entitled under the
terms " godly preachers of Christ's Holy
Gospel," " godly persons," and the other
descriptions contained in the deeds of 1704
and 1707, to the benefit of Lady Hewley's
bounty. The other questions, whicli were
five in number, were framed to ascertain,
if such evidence should be deemed admis-
sible, what descriptions of persons were,
and what were not the proper objects of
the trusts. Of the seven learned judges,
who answered these questions, six were
of opinion, but on various grounds, that
TJnitarians were excluded. Maule, J.,
was of opinion, that none of the evidence
offered was admissible; and that the re-
ligious opinions of the founder of a char-
ity, even if certainly known, could have
no legal effect in the interpretation of an
instrument, in which no reference is made
to his own religious opinions or belief.
Erskine, J., was also of opinion that none
of the evidence was admissible, for the
purpose for which it was offered ; but
that the sense of the words in question
might be ascertained from contempora-
neous writings, and the history of that
day ; and that from these sources, already
open to the House, it was easy to collect,
that the words were applicable to none
but Trinitarian Dissenters. Coleridge, J.,
and Gurney, B., were of opinion, that the
evidence was admissible, to show the
opinions of those with whom the founder
lived in most confidence, and to what sect
she in fact belonged ; and that the phrase-
ology of that party mi^ht be ascertained
from other sources. Williams, J., thought
that the words employed were so indefi-
nite and ambiguous, that she must be
presumed to have used them in a limited
sense ; and that this sense miglit be ascer-
tained from her opinions ; for which pur-
pose the evidence was admissible. Parke,
B., and Tindal, C. J., were of opinion,
that, though it might well be shown, by
competent evidence, that the words em-
ployed h.^d a peculiar meaning at tlie time
they were used, and what was that mean-
ing; and tliat the deeds were to be read
by substituting the equivalent expz-essions,
thus ascertained, instead of those written
in the deeds; yet, that 'evidence of her
own religious opinions was not admissible,
to limit or control the meaning of the
words. Upon this occasion, the general
doctrine of the law was stated by Mr.
Baron Parke, in the following terms : " I
apprehend that tliere are two descriptions
of evidence, which are clearly admissible,
in every case, for the pm-pose of enabling
a court to construe any wi-itteu instru-
ment and to apply it practically. In the
first place, there is no doubt, that not only
where the language of tlie instrument ia
such as the court does not understand, it
is competent to receive evidence of the
proper meaning of that language, as when
it is written in a foreign tongue ; but it is
also competent where technical words or
peculiar terms, or, indeed, any expressions
are used, which, at the time the instru-
ment was written, had acquired any ap-
propriate meaning, either generally, or by
local usage, or amongst particular classes.
Tills description of evidence is admissible.
CHAP. XV.] ADMISSIBILITY OP PAROL EVIDENCE.
339
meaning is attached, parol evidence, it seems, is not admissible to
show that, in that particular case, the words were used in any
other than their ordinary and popular sense.^
in order to enable the court to understand
the meanmg of the words contained in the
instrument itself, bj tliemselves, and with-
out reference to the extrinsic facts on
which the instrument is intended to op-
erate. For the purpose of applying the
instrument to the facts, and determining
what passes by it, and who take an in-
terest under it, a second description of
evidence is admissible, namely, every ma-
terial fact, that will enable the court to
identify the person or thing mentioned in
the instrument, and to place the court,
whose province it is to declare the mean-
ing of the words of the instrument, as
near as may be, in the situation of the
parties to it. From the context of the
instrument, and from these two descrip-
tions of evidence, with such circumstances
as by law the court, without evidence,
may of itself notice, it is its duty to con-
strue and apply the words of that instru-
ment; and no extrinsic evidence of the
intention of the party to the deed, from
his declarations, whether at the time of
his executing the instrument, or before or
after that time, is admissible ; the duty of
the court being to declare the meaning
of what is written in the instrument, not
of what was intended to have been writ-
ten." Lord Ch. J. Tindal expounded the
same doctrine as follows : " The general
rule I take to be, that where the words of
any written instrument are free from am-
biguity in themselves, and where external
circumstances do not create any doubt or
difficulty, as to tlie proper application of
those words to claimants under the instru-
ment, or the subject-matter to which the
instrument relates, such instrument is al-
ways to be construed according to the
strict, plain, common meaning of the
words themselves ; and that, in such case,
evidence dehors the instrument, for the
purpose of explaining it according to the
surmised or alleged intention of the par-
ties to the instrument, is utterly inadmis-
s'hln. If it were otherwise, no lawyer
»' iiuld be safe in advising upon the con-
struction of a written instrument, nor any
])arty in taking under it; for the ablest
advice might be controlled, and the clear-
est title undermined, if, at some future
period, parol evidence of the partioular
meaning which the party affixed to' his
words, or of his secret intention in making
the instrument, or of the objects lie meant
to take benefit under it, might be set up
to contradict or vary the plain language
of the instrument itself The true inter-
pretation, however, of every instrument
being manifestly that which will make
the instrument speak the intention of the
party at the time it was made, it has al-
ways been considered a» an exception, or
perhaps, to speak more precisely, not so
much an exception from, as a corollary to,
the general rule above stated, that, where
any doubt arises upon the true sense and
meaning of the words themselves, or any
difficulty as to their application under the
surrounding circumstances, the sense and
meaning of the language may be investi-
gated and ascertained by evidence dehors
the instrument itself; for both reason and
common sense agree, that by no other
means can the language of the instrument
be made to speak the real mind of the
party. Such investigation does, of neces-
sity, take place in the interpretation of
instruments written in a foreign language ;
in the case of ancient instruments, where,
by the lapse of time and change of man-
ners, the words have acquired, in the
present age, a different meaning from
that which they bore when originally em-
ployed ; in cases where terms of art or
science occur; in mercantile contracts,
which, in many instances, use a peculiar
language, employed by those only who
are conversant ifi trade and commerce;
and in other instances in which the words,
besides their general, common meaning,
have acquired, by custom or otherwise, a
well-known, peculiar, idiomatic meaning,
in the particular cpuntry in which the
party using them was dwelling, or in the
particular society, of which he formed a
member, and in which he passed his life.
In all these cases, evidence is admitted,
to expound the real meaning of the lan-
guage used in the instrument, in order to
1 2 Stark. Evid. 566 ; supra, §§ 277,
280. But see Gray v. Harper, 1 Story's
R. 574, where two booksellers having con-
tracted for the sale and purchase of a cer-
tain york at " cost," parol evidence of
convei'sations between them, at the time
of making the contract, was held admissi-
ble, to show what sense they attached to
that term. See also Selden v. Williams,
9 Watts, 9; Kemble v. Lull, 3 McLean,
272.
340
LAW OP EVIDENCE.
[part II.
§ 295a. It is thus apparent, as was remarked at the outset, that
in all the cases in which parol evidence has been admitted in ex-
position of that wliich is written, the principle of admission is,
that the court may be placed, in regard to the surrounding cir-
cumstances, as nearly as possible in the situation of the party
whose written language is to be interpreted ; the question being,
what did tlie person, thus circumstanced, mean by the language
lie has employed ?
§ 296. There is another class of cases, in which parol evidence
is allowed by courts of equity to affect the operation of a writing,
though the writing on its face is free from ambiguity, which is yet
considered as no infringement of the general rule ; namely, where
the evidence is offered to rebut an equity. The meaning of this is,
that where a certain presumption would, in general, be deduced
from the nature of an act, such presumption may be repelled by
extrinsic evidence, sliowing the intention to be otherwise.^ The
enable the court, or judge, to construe the
instrument, and to carry such real mean-
ing into eifect. But, whilst evidence is
admissible, in these instances, for the pur-
pose of making the written instrument
speak for itself, which, without such evi-
dence, would be either a dead letter, or
would use a doubtful tongue, or convey a
false impression of the meaning of the
party, I conceive the exception to be
strictly limited to cases of the description
above given, and to evidence of the na-
ture above detailed ; and that in no ease
whatever is it permitted to explain the
language of a deed by evidence of the pri-
vate views, the secret intentions, or the
known principles of the party to the in-
strument, whether religious, political, or
otherwise, any more than by express pa-
rol declarations made by the party him-
self, which are universally excluded ; for
the admitting of such evidence would let
in all the uncertainty before adverted to ;
it would be evidence which, in most in-
stances, could not be met or countervailed
by any of an opposite bearing or tendency,
and would, in effect, cause the secret un-
declared intention of the party to control
and predominate over the open intention
expressed in the deed." See Attorney-
General V. Shore, 11 Sim. R. 592, 616-
627, 631, 632. Though, in this celebrated
case, the general learning on this subject
has been thus ably opened and illustrated ;
yet the precise question, whether the re-
ligious opinions of the founder of a char-
ity can be received as legal exponents of
his intention, In an instrument otherwise
intelligible in its terms, and in which no
reference is made to his own opinions or
belief, can hardly be considered as defi-
nitely settled ; especially as a majority of
the learned judges, in coming to the con-
clusion in wliich they concurred, pro-
ceeded on grounds which rendered the
consideration of that point wholly un-
necessary. The previous judgment of
Lord Ch. Lyndhurst, in the same case,
is reported in 7 Sim. 309, n., 312-317.
See Attorney-General v. Pearson et al.Z
Meriv. 353, 409^11, 415 ; and afterwards
in 7 Sim. 290, 307, 308, where such evi-
dence was held admissible. But how far
this decision is to be considered as shaken
by what fell from the learned judges, in
the subsequent case of the Attorney-Gen-
eral V. Shore, above stated, remains to be
seen. The acts of the founder of such a
charity may be shown, in aid of the con-
struction of the deed, where the language
is doubtful; and contemporaneous treat-
ises, documents, and statutes may be read,
to show the sense in which any words or
phrases were commonly used in that day,
and thereby to show the sense in which
the founder used them, in the deed of
donation ; but his opinions are inadmissl
ble. Attorney-General v. Drummond, 1
Drury & Warren, 353, per Sugden, C;
affirmed in Dom. JProc. on Appeal, 2 Eng.
Law & Eq. E. 15; 14 Jur. 137. See
Attorney-General e. Glasgow College, 10
Jurist, 676.
1 2 Poth. on Obi. by Evans, App. No.
CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 341
simplest instance of this occurs, when two legacies, of which the
sums and the expressed motives exactly coincide, are presumed
not to have been intended as cumulative. In such case, to rebut
tlie presumption which makes one of these legacies inoperative,
parol evidence will be received ; its effect being not to show that
the testator did not mean what he said, but on the contrary, to
prove that he did niean what he had expressed. ^ In like manner,
parol evidence is received to repel the presumption against an
executor's title to the residue, from the fact that a legacy has been
given to him. So also to repel the presumption, that a portion is
satisfied by a legacy ; ^ and in some cases, that the portionment of
a legatee was intended as an ademption of the legacy.^
§ 296a. Courts of equity also admit parol evidence to contradict
or vary a writing, where it is founded in a mistake of material facts,
and it would be unconscientious or unjust to enforce it against
eitlier party, according to its expressed terms. Thus, if the plain-
tiff seeks a specific performance of the agreement, the defendant
may show that such a decree would be against equity and justice,
by parol evidence of the circumstances, even though they contra-
dict the writing. So, if the agreement speaks, by mistake, a dif-
ferent language from what the parties intended, this may be
shown in a bill to reform the writing and correct the mistake. In
short, wherever the active agency of a court of equity is invoked,
specifically to enforce an agreement, it admits parol evidence to
show that the claim is unjust, although such evidence contradicts
that which is written. Whether courts of equity will sustain -a
claim to reform a writing, or to establish a mistake in it, by parol
evidence, and for specific performance of it when corrected, in one
and the same bill, is still an open question. The English authori-
ties are against it ; but in America their soundness is strongly
XVI. p. 184; Coote t). Boyd, 2 Bro. C. E. as the consideration of the presumed
522; Bull. N. P. 297, 298; Mann v. Mann, revocation of a will, by a subsequent mar-
1 Johns. Ch. 231. riage and the birth of issue, does not con-
1 Gresley on Evid. 210; Hurst v. sist with the plan of this treatise, tiie read-
Beach, 5 Madd. R. 360, per Sir J. Leach, er is referred to 1 Roper on Legacies, by
V. C. White, pp. 317-353 ; Gresley on Evid. pp.
2 5 Madd. R. 360 ; 2 Poth. on Obi. by 209-218 ; 6 Cruise's nig. tit. 38, ch. 6,
Evans, App. No. xvi. p. 184; Ellison v. §§ 45-57, and notes by Greenleaf [2d edit.
Cookson, 1 Ves. 100; Clinton v. Hooper, (1857), vol. 3, p. 104, and notes;] 1 Jarm.
Id. 173. So, to rebut an implied trust, on Wills, ch. 7, and notes by Perkins.
Livermore v. Aldrich, 5 Cush. 431. See also yosl, vol. 2, §§ 684, 685, [7th edit
3 ICrk 0. Eddowes, 8 Jur. 530. As (1858).]
the further piu-suit of this point, as well
29*
342 LAW OP EVIDENCE. [PABT II.
questioned.! So, also, if a grantee fraudulently attempts to con-
vert into "an absolute sale that which was originally meant to be
a security for a loan, the original design of the conveyance, though
contrary to the terms of the writing, may be shown by parol.^
§ 297. Having thus explained the nature of the rule under
consideration, and shown that it only excludes evidence of the
language of the party, and not of the circumstances in which he
was placed, or of collateral facts, it may be proper to consider tho
case of ambiguities, both latent and patent. The leading rule on
this subject is thus given by Lord Bacon : Anibiguitas verborum
latens verificatione suppletur ; nam quod ex facto oritur ambiguum,
verificatione facti tollitur.^ Upon which he remarks, that " there
be two sorts of ambiguities of words : the one is ambiguitas patens,
and the other latens. Patens is that which appears to be ambigu-
ous upon the deed or instrument; latens is that which seemeth
certain and without ambiguity, for any thing that appeareth upon
the deed or instrument ; but there is some collateral matter out
of the deed that breedeth the ambiguity. Ambiguitas patens is
never holpen by averment ; and the reason is, because the law
will not couple and mingle matter of specialty, which is of the
higher account, with matter of averment, whidh is of inferior ac-
coui; fc in law ; for that were to make all deeds hollow and subject
to averments, and so, in effect, that to pass without deed, which
the law appointeth shall not pass but by deed. Therefore, if a
man give land to J. D. and J. S. et heroedibus, and do not limit
to- whether of their heirs, it shall not be supplied by averment to
whether of them the intention was (that) the inheritance should
be limited." " But if it be ambiguitas latens, then otherwise it is ;
as if I grant my manor of S. to J. F. and his heirs, here appeareth
no ambiguity at all. But if the truth be that I have the manors
both of Soiith S. and North S., this ambiguity is matter in fact;
and therefore it shall be holpen by averment, whether of them it
was that the party intended should pass."*
1 IStory.Eq.Jurisp. §§152-161; Gres- supra, § 290; Eeed v. Prop'rs of Locks,
ley on Evid. 205-209. &c., 8 How. a. u. Kep. 274. Where a bill
^ Morris v. Nixon, 17 Pet. 109. See was drawn expressing £200 in tlie body
Jonliins i.\ Eldridge, 3 Story, R. 181, 284- in words, but £246 in figures in the mai--
287. f*See .also McClane v. Wliite, 5 gin, it was lield tliat the words in the
Min. 178; Tillsoii i'. Moulton, 23 111. 648; body must be taken to be the true amount
People II. Irwhi, 14 Cal. 428.] to be paid ; and that the ambiguity created
" Bacon's Maxims, Reg. 28, [25.]' by the figures in tlie margin was patent,
* See Bacon's Law Tracts, pp. 99, 100. and could not be explained by parol.
And see Miller o. Travers, 8 Bing. 244; Saunderson v. Piper, 5 Bing. n. c. 425 j
CHAP. XV.J ADMISSIBILITY OP PAROL BVIDENCB. 343
§ 298. But here it is to be observed, that words cannot be said
to be ambiguous because they are unintelligible to a man who
cannot read ; nor is a written instrument ambiguous or uncertain
merely because an ignorant or uninformed person may be unable
to interpret it. It is ambiguous only, when found to be of uncertain
meaning by persons of competent skill and information. Neither is
a judge at liberty to declare an instrument ambiguous, because ho
is ignorant of a particular fact, art, or science, which was familiar
to the person who used the words, and a knowledge of which is
therefore necessary to a right understanding of the words he has
used. If this were not so, then the question, whether a will or
other instrument were ambiguous or uncertain, might depend not
upon the propriety of the language the party has used, but upon
the degree of knowledge, general or local, which a particular judge
might happen to possess ; nay, the technical accuracy and precision
of a scientific man might occasion his intestacy, or defeat his con-
tract. Hence it follows that no judge is at liberty to pronounce
an instrument ambiguous or uncertain, until he has brought to
his aid, in its interpretation, all the lights afforded by the col-
lateral facts and circumstances, which, as we have shown, may
be proved by parol.-^
[ * 298a. It was decided in a recent case,^ that when evidence
legitimately admitted in the course of a trial raises a latent am-
biguity, evidence to explain it is properly admissible ; and, if
there were in truth no latent ambiguity, and the evidence to
[Lathrop v. Blake, 3 Toster, 46. In Sar- previously paid by him to the defendant,
gent V. Adams, 3 Gray, 72, 77, the ques- in part performance of the agreement,
tion arose how far an agreement in The defendant, to show that he had com-
writing to let for a term of years " the plied with his obligations under the agree-
' Adams House,' so called, situate on ment, by tendering a proper lease, oHered
Washington Street, in Boston, and num- to prove by parol, that the original agree-
bered 371 on said Washington Street," ment was that the lease should inchide
could be explained by parol. The de- only the hotel proper and not the stores ;
fendant had fitted up an old tavern as a and he was permitted so to do. The
hotel, under the name of the "Adams opinion of the court, by Shaw, C. J.,
House," on Washington Street. The en- [* places the case among latent ambigui-
trance to the hotel was from said street, ties, upon the ground, that the very general
and was numbered 871. The rest of the terms used in the contract apply with suf-
ground-floor of the building was fitted up ficient legal certainty to the entire build-
for stores, which were numbered from 1 ing, including tlie stores, and to Hie portion
to 6, Adams House, and were, at the time of it fitted up tor a pubhc house; and con-
of making the agreement, severally occu- sequently it was competent to show, by
pied by different tenants. The defendant parol, in which sense the parties used the
tendered, in pursuance of the above agree- terms.]
ment, a lease duly executed, of the hotel i See Wigram on the Interpretation of
known as the Adams House, but not in- Wills, p. 174, pi. 200, 201.
eluding the stores, which the plaintiff re- ^ [*Bruff v. Coneybeare, 9 Jur. n. s
fused to accept, and subsequently brought 78.
this action to recover a sum of money
344 LAW OP EVIDENCE. [PAET II.
explain were consequently inadmissible, still the improper ad-
mission of such evidence would not be a ground for a new trial,
because the writing would then be for the court to construe with-
out regard to the evidence. And if the jury, with the aid of the
evidence, had put the true construction iipon it, the verdict should
stand ; ^ and, if not, the court might render such a judgment as the
true construction required, notwithstanding the verdict.]
§ 299. A distinction is further to be observed, between the
ambiguity of language and its inaccuracy. " Language," Vice-
Chancellor Wigram remarks, " may be inaccurate without being
ambiguous, and it may be ambiguous although perfectly accurate.
If, for instance, a testator, having, one leasehold house in a given
place, and no other house, were to devise his freehold house there
to A. B., the description, though inaccurate, would occasion no
ambiguity. If, however, a testator were to devise an estate to
John Baker, of Dale, the son of Thomas, and there were two
persons to whom the entire description accurately applied, this
description, though accurate, would be ambiguous. It is obvious,
therefore, that the whole of that class of cases in which an accurate
description is found to be sufficient merely by the rejection of
words of surplusage are cases in which no ambiguity really exists.
The meaning is certain, notwithstanding the inaccuracy of the
testator's language. A judge, in such cases, may hesitate long
before he comes to a conclusion ; but if he is able to come to a
conclusion at last, with no other assistance than the light derived
from a knowledge of those circumstances, to which the words of
the will expressly or tacitly refer, he does in effect declare that
the words have legal certainty — a declaration which, of course,
excludes the existence of any ambiguity. The language may be
inaccurate ; but if the court can determine the meaning of this in
accurate language, without any other guide than a knowledge of
the simple facts, upon which — from the very nature of language
in general — its meaning depends, the language, though inaccurate
cannot be ambiguous. The circumstance, that the inaccuracy
is apparent on the face of the instrument, cannot, in principle,
alter the case." ^ Thus, in the will of NoUekens, the sculptor, it
was provided that, upon his decease, " all the marble in the yard,
the tools in the shop, bankers, mod, tools for carving," &c., should
1 I* Morse v. Weymouth, 28 Vt. R. ^ 'VVigrani on the Interpretation of
824.] WiUs, pp. 175, 176, pi. 203. 204.
CHAP. XT.J ADMISSIBILITY OP PAROL EVIDENCE. 84o
be the property of Alex. Goblet. The controversy was upon the
word "mocZ;" which was a case oi patent inaccuracy; but the
court, with no guide to the testator's intention but his words, and
the knowledge common to every working sculptor, decided that
the word in question sufficiently described the testator's models;
thus negativing the existence of any ambiguity whatever.^
§ 300. The patent ambiguity, therefore, of which Lord Bacon
speaks, must be understood to be that which remains uncertain
to the court, after all the evidence of surrounding circumstances
and collateral facts, which is admissible under the rules already
stated, is exhausted. His illustrations of this part of the rule are
not cases of misdescription, either of the person or of the thing to
which the instrument relates ; but are cases in which the persons
and things being sufficiently described, the intention of the party
in relation to them is ambiguously expressed.^ Where this is the
case, no parol evidence of expressed intention can be admitted.
In other words, and more generally speaking, if the court, placing
itself in the situation in which the testator or contracting party
stood at the time of executing the instrument, and with full under-
standing of the force and import of the words, cannot ascertain
his meaning and intention from the language of the instrument
thus illustrated, it is a case of incurable and hopeless uncertainty,
and the instrument therefore is so far inoperative and void.^
§ 301. There is another class of cases, so nearly allied to these
as to require mention in this place, namely, those in which, upon
applying the instrument to its subject-matter, it appears that in
relation to the subject, whether person or thing, tlie description
in it is true in part, but not true in every particular. The rule, in
.such cases, is derived from the maxim: Falsa demonstratio non
nacet, cum de corpore constat.^ Here so much of the description as
1 Goblet V. Beachy, 3 Sim. 24 ; Wigram Wills, 315 ; 1 Powell on Devises (by Jai>
on the Interpretation of Wills, pp. 179, man), p. 848; 4 Cruise's Dig. 255, tit. 32,
185. . Parol evidence is admissible to ex- ch. 20, § 60 (Greenleaf's edit.), [Greenl.
plain sliort and incomplete terms in a {2d edit. 1857) vol. 2, p. 609 and notes.]
written agreement, which per se are unin- Patent ambiguities are to be dealt witli by
telligible, if the evidence does not contra- the court alone. But where tlie meaning
diet what is in writing. Sweet v. Lee, 3 of an instrument becomes ambiguous, by
M. & U. 452 ; Parm. & Mech. Bank v. reason of extrinsic evidence, it is iiir the
Day, 13 Verm. R. 36. jury to determine it. Smith v. Tlionip-
- \Vigram on the Interpretation of son, 18 Law J. 314; Doe v. Beviss, Id.
Wills, p. 179 ; Pish v. Hubbard, 21 Wend. 628. See snp,-a, § 280.
651. * 6 T. 11. 676 ; Broom's Maxims, p.
^ Per Parsons, C. J., in Wortliington 269 ; Bac. Max. Reg. 25. Andsee Just. Ins.
V. Hylyer, 4 Mass. 205 ; United States v. lib. 2, tit. 20, § 29. Siquideni in nomine.
Cantrill, 4 Cranch, 167 ; 1 Jarmau on cognomine, prEeuomine, agnomiae logata
346 ■ ■ LAW OP EVIDENCE. [PAET II.
is false is rejected ; and the instrument will take effect, if a suffi-
cient description remains to ascertain its application. It is essential,
that enough remains to show plainly the intent.^ " The rule,"
said Mr. Justice Parke,^ " is clearly settled, that when there is a
sufficient description set forth of premises, by giving the particular
name of a close, or otherwise, we may reject a false demonstration ;
but, that if the premises be described in general terms, and a par-
ticular description be added, the latter controls the former." It
is not, however, because one part of the description is placed first
and the other last in the sentence ; but because, taking the whole
together, that intention is manifest. For, indeed, " it is vain to
imagine one part before another ; for though words can neither be
spoken nor written at once, yet the mind of the author compre-
hends them at once, which gives vitam et modum to the sentence." ^
Therefore, under a lease of " all that part of Blenheim Park,
situate in the county of Oxford, now in the occupation of one S.,
lying" within certain specified abuttals, "with all the houses
thereto belonging, which are in the occupation of said S.," it was
held, that a house lying within the abuttals though not in the
occupation of S., would pass.* So, by a devise of " the farm called
Trogue's Farm, now in the occupation of C," it was held, that
the whole farm passed, though it was not all in C.'s occupation.^
Thus, also, where one devised all his freehold and real estate
" in the county of Limerick and in the city of Limerick ; " and
the testator had no real estates in the county of Limerick, but
his real estates consisted of estates in the county of Clare, which
was not mentioned in the will, and a small estate in the city
of Limerick, inadequate to meet the charges in the will ; it was
held, that the devisee could not be allowed to show, by parol
evidence, that the estates in the county of Clare were inserted
in the devise to him, in the first draft of the will, which was
sent to a conveyancer, to make certain alterations, not affect-
ijig those estates ; that, by mistake, he erased the words " county
of Clare ; " and that the testator, after keeping the will by him
for some time, executed it, without adverting to the alteration as
rii, testator erraverit, cum de persona con- 241, 245, N. s.; [Peaslee v. Gee, 19 N. H.
Btat, nihilominus valet legatum ; idemque 273.]
in liseredibus servatur ; et rectfe : noinina ^ Doe d. Smith t. Galloway, 5 B. &
enim significandorum hominum gratia Ad. 43, 51.
reperta sunt; qui si alio quolibet modo ^ Stukeley d. Butler, Hob. 171.
intulligantur, nihil interest. * Doe d. Smitli v. Galloway, 5 B. &
1 Doe V. Hubbard, 15 Ad. & El. 240, Ad. 48.
I* Goodtitle v. Southern, 1 M. & S. 299.
CHAP. XV. J ADMISSIBILITY OF PAROL EVIDENCE.
347
to that county.^ And so, where land was described in a patent
as lying in the county of M., and further described by reference
1 Miller v. Travers, 8 Bing. 244 ; Doe
V. Chichester, 4 Dow's P. C. 65 ; Doe ■>.
Lyford, 4 M. & S. 550. The opinion of
the court in Miller v. Travers, by Tindal,
C. J., contains so masterly a discussion of
the doctrine in question, that no apology
seems necessary for its insertion' entire.
After stating the case with some preUmi-
nary remarks, the learned chief justice
proceeded as follows : " It may be admit-
ted that, in all cases in which a difficulty
arises in applying the words of a will to
the thing which is the subject-matter of
the devise, or to the person of the devisee,
the difficulty or ambiguity, which is intro-
duced by the admission of extrinsic evi-
dence, may be rebutted and removed by
the production of further evidence upon
the same subject calculated to explain
what was the estate or subject-matter
really intended to be devised, or who was
the person really intended to take ijnder
the will ; and this appears to us to be the
extent of the maxim, ' Ambiguitas verbo-
rum latens, verificatione suppletur.' But
the cases to which this construction ap-
plies will be found to range themselves
into two separate classes, distinguishable
from each other, and to neither of which
can the present case be referred. The
first class is, where the description of the
thing devised, or of the devisee, is clear
upon the face of the will ; but upon the
death of the testator, it is ibund that there
are more than one estate or subject-matter
of devise, or more than one person, whose
description follows out and fills the words
used in the will. As, where the testator
devises his manor of Dale, and at his
death it is found that he has two manors
of that name, South Dale and North Dale ;
or, where a man devises to his son John,
and he has two sons of that name. In
each of these cases respectively, parol
evidence is admissible to show which
manor was intended to pass, and which
son was intended to take. (Bae. Max.
23; Hob, R. 32; Edward Altham's case,
8 Rep. 155.) The other class of cases is
that, in which the description contained
in the will of the thing intended to be de-
vised, or of the person who is intended to
take, is true in part, but not true in every
particular. As, where an estate is de-
vised called A, and is described as in the
occupation of E, and it is ibund, that,
though there is an estate called A, yet the
whole is not in B's occupation ; or, where
an estate is devised to a person, whose
surname or christian name is mi.'itaken;
or whose description is imperfect or inac-
curate ; in which latter class of cases parol
evidence is admissible to show what estate
was intended to pass, and who was the
devisee intended to take, provided there
is sufficient indication of intention appear-
ing on the face of the will to justify the
application of the evidence. But the case
now before the court does not appear to
fall within either of these distinctions.
There are no words in the will which
contain an imperfect, or, indeed, any de-
scription whatever of the estates in Clare.
The present case is rather one, in which
the plaintiff does not endeavor to apply
the description contained in the will to
the estates in Clare ; but, in order to make
out such intention, is compelled to intro-
duce- new words and a new description
into the body of the will itself The tes-
tator devises all his estates in the county
of Limerick and the city of Limerick.
There is nothing ambiguous in this devise
on the face of the will. It is found, upon
inquiry, that he has property in the city
of Limerick, which answers to the descrip-
tion in the will, but no property in the
county. This extrinsic evidence produces
no ambiguity, no difficulty in the applica-
tion of the words of his will to the state
of the property, as it really exists. The
natural and necessary construction of the
will is, that it passes the estate which he
has in the city of Limerick, but passes no
estate in the county of Limerick, where
the testator had no estate to answer that
description. The plaintiff, however, con-
tends, that he has a right to prove that the
testator intended to pass, not only the
estate in the city of Limerick, but an
estate in a county not named in the will,
namely, the county of Clare ; and that the
will is to be read and construed as if the
word ' Clare ' stood in the place of, or in
addition to, that of Limerick. But this, it
is manifest, is not merely calling in the
aid of extrinsic evidence to apply the in-
tention of the testator, as it is to be col-
lected from the will itself, to the existing
state of his property; it is calling in ex-
trinsic evidence to introduce into the will
an intention not apparent upon the face
of the will. It is not simply removing a
difficulty arising from a defective or mis-
taken description ; it is making the will
speak upon a subject, on wliich it is alto-
gether silent, and is the same in effect as
the filling up a blank, which the testator
might have left in his will. It amounts,
in short, by the admission of parol evi-
348
LAW OP ETIDENCE.
[part II
to natural monuments ; and it appeared, that the land described
by the monuments was in the county of H., and not of M. ; that
dence, to the making of a new devise for
the testator, which he is supposed to have
omitted. Now, the first objection to the
Inti'oduction of such evidence is, that it is
inconsistent with tlie rule, whicli reason
and sense lay down, and which has been
universally established for the construc-
tion of wills, namely, that the testator's
intention is to be collected from the words
used in the will, and that words which he
has not used cannot be added. Denn v.
Page, 3 T. K. 87. But it is an objection
no less strong, that the only mode of
proving the alleged intention of the testa-
tor is by setting up the draft of the will
against tlie executed will itself. As, how-
ever, the copy of the will which omitted
the name of the county of Clare was for
some time in the custody of the testator,
and therefore open for his inspection,
which copy was afterwards executed by
}iira, with all the formalities required by
the statute of frauds, the presumption is,
that he must have seen and approved of
the alteration, ratlier than that he over-
looked it by mistake. It is unnecessary
to advert to the danger of allowing the
draft of the will to be set up, as of greater
authority to evince the intention of the
testator tlian the will itself, after the will
has been solemnly executed, and after the
death of the testator. If such evidence
is admissible to introduce a new subject-
matter of devise, why not also to intro-
duce the name of a devisee, altogether
omitted in the will"? If it is admissible to
introduce new matter of devise, or a new
devisee, why not to strike out such as are
contained in tlie executed will? The
efflijct of such evidence in either case
would be, tliat the will, though made in
form by the testator in his lifetime, would
really be made by the attorney after his
death ; that all the guards intended to be
introduced by the statute of frauds would
be entirely destroyed, and the statute it-
self vinually repealed. And upon exami-
nation of the decided cases, on which the
plaintiff iias relied in argument, no one
will be found to go the length of support-
ing the proposition which he contends for.
On the contrary, they will aU" be found
consistent with the distinction above ad-
verted to, — that an imcertainty which
arises from applying the description con-
tained in the will, either to the thing de-
vised or to the person of the devisee, may
be hel|ied by parol evidence; but that a
new suhject-niiitter of devise, or a new
devisee, whsre the will is entirely silent
upon either, cannot be imported by parol
evidence into the will itself. Thus, in
the case of Lowe v. Lord Huntingtower,
4 Russ. 581, n., in which it was held, that
evidence of collateral circumstances was
admissible, as, of the several ages of the
devisees named in the will, of the fact of
their being married or unmarried, and the
like, far the purpose of ascertaining the
true construction of the will; such evi-
dence, it is to be observed, is not ad-
mitted to introduce new words into the
will itself, but merely to give a construc-
tion to the words used in the will, consist-
ent with the real state of his property and
family ; the evidence is produced to prove
facts, which, according to the language of
Lord Coke, in 8 Rep. 155, ' stand well
with the words of the will.' The case of
Standen v. Standen, 2 Ves. 589, decides
no more, than that a devise of all the resi-
due of the testator's real estate, where he
has no real estate at all, but has a power
of appointment over real estate, shall pass
such estate, over which he has the power,
though the power is not referred to. But
this proceeds upon the principle, that the
will would be altogether inoperative, un-
less it is taken that, by the words used
in the will, the testator meant to refer
to the power of appointment. ' The case
of Mosley v. Massey and others, 8 East,
149, does not appear to bear upon the
question now under consideration. After
the parol evidence had established, that
the local description of the two estates
mentioned in the will had been transposed
by mistake, the county of Radnor having
been applied to the estate in Monmouth,
and vice versa ; the court held, that it was
sufficiently to be collected from the words
of the will itself, which estate the testator
meant to give to the one devisee, and
which to the other, independent of their
local description ; all, therefore, that was
done, was to reject the local description,
as unnecessary, and not to import any
new description into the will. In the case
of Selwood V. Mildway, 3 Ves. 306, the
testator devised to his wife part of his
stock in the four per cent, annuities of the
Bank of England; and it was shown by
parol evidence, that at the time he made
his will he had lio stock in the four per
cent, annuities, but that he liad some
which he had sold out and had invested
the produce in long annuities. And in
this case it was held, that the bequest was
in substance a bequest of stock, using the
words as a denomination, not as the identi-
CHAP. XV.J ADMISSIBILITY OF PAROL KVIDENCE. 349
part of the description which related to the county was rejected.
The entire description in the patent, said the learned judge, who
cal corpus of the stock ; and as none could
be fovind to answer the description but the
long annuities, it was held, that such stock
should pass, rather than the will be alto-
getlier inoperatire. This case is certainly
a very strong one; but the decision ap-
pears to us to range itself under the head,
that ' falsa demonstratio non nocet,' where
enough appears upon the will kself to
show the intention, after the false descrip-
tion, is rejected. The case of Goodtitle v.
Southern, 1 M. & S. 299, falls more close-
ly within the principle last referred to.
A devise ' of all that my farm called
Trogue's Farm, now in the occupation
of A. C Upon looking out for the farm
levised, it is found that part of the lands
which constituted Trogue's Farm are in
the occupation of another person. It was
held, that the thing devised was sufficient-
ly ascertained by the devise of ' Trogue's
Farm,' and that the inaccurate part of the
devise might be rejected as surplusage.
Tlie case of Day v. Trigg, 1 P. W". 280,
ranges itself precisely in the same class.
A devise of all 'the testator's freehold
houses in Aldersgate Street,' when in fact
he had no fi'eehold, but had leasehold
houses there. The devise was held in
substance and etfect to be a devise of his
houses there ; and that as there were no
freehold houses there to satisfy the de-
scription, the word ' freehold ' should rath-
er be rejected, than the will be totally
void. But neither of these cases affords
any authority in favor of the plaintiff;
they decide only that, where there is a
sufficient description in the will to ascer-
tain the thing devised, a part of the de-
scription, which is inaccurate, may be
rejected, not that any thing may be added
to the will; thus following the rule laid
down by Anderson, C. J., in Godb. R.
131, — 'An averment to take away sur-
plusage is good, but not to increase that
which is defective in the will of the testa-
tor.' On the contrary, the cases against
the plaintiff's construction appear to bear
more closely on the point. In the first
place, it is well estabUshed, that where a
complete blank is left for the name of the
legatee or devisee, no parol evidence,
however strong, will be allowed to fill it
up as intended by the testator. Hunt v.
Hort, 3 Bro. C. C. 311, and in many other
cases. Now the principle must be pre-
cisely the same, whether it is the person
of the devisee, or the estate or thing de-
vised, which is left altogether in blank.
And it requires a very nice discrimination
to distinguish between the case of a will,
where the description of the estate is left
altogether in blank, and the present case,
where there is a total omission of the
estates in Clare. In the case of Doe 4
Oxenden v. Chichester, 4 Dow, P. C. 65,
it was held by the House of Lords, in
affirmance of the judgment below, that in
the case of a devise of ' my estate of Ash-
ton,' no parol evidence was admissible to
show, that the testator intended to pass
not only his lands in Ashton, but in the
adjoining parishes, which he had been
accustomed to call by the general name
of his Ashton estate. The chief justice
of the Common Pleas, in giving the judg-
ment of all the judges, says, ' If a testator
should devise his lands' of or in Devon-
shire or Somersetshire, it would be im-
possible to say, that you ought to receive
evidence, that his intention was to devise
lands out of those counties.' Lord Eldon,
then Lord Chancellor, in page 90 of the
Keport, had stated in substance the same
opinion. The case, so put by Lord Eldon
and the chief justice, is the very case
now under discussion. But the case of
Newburgh v. Newburgh, decided in the
House of Lords on the 16th of June, 1825,
appears to be in point with the present.
In that case the appellant contended, that
the omission of the word ' Gloucester,' in
the will of the late Lord NewbiAgh, pro-
ceeded upon a mere mistake, and was
contrary to the intention of the testator,
at the time of making his will, and in-
sisted that she ought to be allowed to
prove, as well from the context of the will
itself, as from other extrinsic evidence,
that the testator intended to devise to her
an estate for life as well in the estates in
Gloucester, which was not inserted in the
will, as in the county of Sussex, which
was mentioned therein. The question,
' whether parol evidence was admissible
to prove such mistake, for the purpose of
correcting the will and entitling the ap-
pellant to the Gloucester estate, as if the
word " Gloucester " had been inserted in
the will,' was submitted to the judges,
and Lord Chief Justice Abbott declared it
to be the unanimous opinion of those' who
had heard the argument that it could not.
As well, therefore, upon the authority of
the cases, and more particularly of that
which is last referred to, as upon reason
and principle, we think the evidence of-
fered by the plaintiff would be inadmissi-
ble upon the trial of the issue." [*A8 a
general rule, the courts adhere to the
30
350
LAW OP EVIDENCE.
[PAET II
delivered the opinion of the court, must be taken, and the identity
of the land ascertained by a reasonable construction of the lan-
guage used. If there be a repugnant call, which, by the other
calls in the patent, cleaiiy appears to have been made through
mistake, that does not make void the patent. But if the land
granted be so inaccurately described as to render its identity
wholly uncertain, it is admitted that the grant is void.i So, if
lands are described by the number or name of the lot or parcel,
and also by metes and bounds, and the grantor owns lands an-
swering to the one description and not to the other, the description
of the lands which he owned will be taken to be the true one, and
the other rejected as falsa demonstratio?
maxim, Veritas nominis toUit errorem de-
monstratioiiis. Colclougli v. Smith, 10 L.
T. N. s. 918. But tliere liave been very
marked departures from it, where it was
obvious that the description was more re-
liable than the name.]
1 Boardman v. Keed and Ford's Les-
sees, 6 Peters, 328, 345, per McLean, J.
2 Loomis V. Jackson, 19 Johns. 449;
Lush V. Druse, 4 Wend. 313 ; Jackson v.
Marsh, 6 Cowen, 281 ; Worthington v.
Hylyer, 4 Mass. 196 ; Blague v. Gold, Cro.
Car. 447; Swift v. Eyres, Id. 548. So,
where one devised " all that freehold farm
called the Wick Farm, containing two
hundred acres or thereabouts, occupied
by W. I?, as tenant to nie, with the appur-
tenances," to uses applicable to freehold
property alone; and at the date of the
will, and at the death of the testator, W.
E. lield, under a lease from him, two
hundred and two acres of land, which
were described in the lease as the Wick
Farm, but of which twelve acres were not
fi-eehold, but were leasehold only ; it was
held that these twelve acres did not pass
by the lease. Hall v. Fisher, 1 CoUyer,
R. 47. The object in cases of this kind
is, to interpret the instrument, that is, to
ascertain the intent of the parties. The
rule to find the intent is, to give most
effect to those things about which men
are least liable to mistake. Davis v.
Eainsford, 17 Mass. 210 ; Mclver v. Walk-
er, 9 Cranch, 178. On this principle, the
things usually called for in a grant, that
is, the things by which the land granted
is described, liave been thus marshalled :
First. The liigliest regard is had to natu-
ral boundaries. Secandli/. To lines actual-
ly run, and corners actually marked at the
time of the grant. Thirdli/. If tlie lines
and courses of an adjoining tract are
called for, the lines will be extended to
them, if they are stifficiently established,
and no other departure from the deed is
thereby required; marked lines prevail-
ing over those which are not mai'ked.
Fourthly. To courses and distances ; giv-
ing preference to the one or tlie other,
according to circumstances. See Cherry
V. Slade, 3 Murphy, 82 ; Dogan v. Seek-
right, 4 Hen. & Munf. 125, 180 ; Preston
V. Bowmar, 6 Wheat. 582 ; Loring v. Nor-
ton, 8 Greenl. 61 ; 2 Flintoff on Keal Prop-
erty, 537, 538 ; Nelson v. Hall, 1 McLean's
R. 518; Wells v. Crompton, 3 Rob. Louis.
R. 171; [Kellogg v. Smith, 7 Gush. 375,
379-384; Newhall v. Ireson, 8 lb. 695;
Haynes v. Young, 36 Maine, 557.] And
in determining the lines of old surveys,
in tlie absence of any monuments to be
found, the variation of the needle from
the true meridian, at the date of the origi-
nal survey, should be ascertained ; and
this is to be found by the jury, it being a
question of fact, and not of law. Burgin
V. Chenault, 9 B. Monroe, 285 ; 2 Am.
Law Journ. 470, n. s. Monuments men-
tioned in the deed, and not then existing,
but which are forthwith erected by the
parties, in order to conform to the deed,
will be regarded as the monuments re-
ferred to, and will control the distances
given in the deed. Makepeace v. Ban-
croft, 12 Mass. 469 ; Davis v. liainsford,
17 Mass. 207 ; [Blaney o. Rice, 20 Pick.
62 ; Cleaveland v. Flagg, 4 Gush. 76, 81 ;]
Leonard v, Morrill, 2 N. Hamp. 197. And
if no monuments are mentioned, evidence
of long-continued occupation, thougli be-
yond the given distances, is admissible.
Owen V. Bartholomew, 9 Pick. 520. If
the description is ambiguous or doubt-
ful, parol evidence of the practical con-
struction given by the parties, by acts of
occupancy, recognition of monuments or
boundaries, or otiierwise, is admissible in
OHAP. XV.J ADMISSIBILITY OP PAROL EVIDENCE.
351
§ 302. Eeturning now to the consideration of the general rule,
that extrinsic verbal evidence is not admissible to contradict or
alter a written instrument, it is further to be observed, that this
rule does not exclude such evidence, when it is adduced to prove
that the written agreement is totally discharged. If the agreement
be by deed, it cannot, in general, be dissolved by any executory
agreement of an inferior nature ; but any obligation by writing
not under seal, may be totally dissolved, before breat . by an oral
agreement.^ And there seems little room to doubt, that this rule
will apply, even to those cases where a writing is by the statute
of frauds made necessary to the validity of the agreement.^ But
where there is an entire agreement in writing, consisting of divers
particulars, partly requisite to be in writing by the statute of
frauds, and partly not within the statute, it is not competent to
prove an agreed variation of the latter part, by oral evidence,
though that part might, of itself, have been good without writing.^
[*The question of the alteration of contracts in writing and under
seal, by subsequent oral agreements, is extensively discussed in
an early case* in Vermont; and the principle maintained, that
aid of the interpretation. Stone v. Clark,
1 Met. 378; [Kellogg ,;. Smith,. 7 Cush.
375, 383 ; Waterman v. Johnson, 13 Pick.
261; Frost v. Spaulding, 19 Pick. 445;
Clark V. Munyan, 22 Pick. 410 ; Crafts v.
ffibbard, 4 Met. R. 438 ; Civil Code of
Louisiana, art. 1951 ; Wells v. Compton,
3 Rob. Louis. E. 171. Words necessary
to ascertain the premises must be re-
tained ; but words not necessary for that
purpose may be rejected, if inconsistent
with the others. Worthington v. Hylyer,
4 Mass. 205; Jackson v. Sprague, 1 Paine,
494 ; Vose v. Handy, 2 Greenl. 322. The
expression of quantity is descriptiye, and
may well aid in finding the intent, where
tlie boundaries are doubtful. Mann v.
Pearson, 2 Johns. 37, 41 ; Perkins v. Web-
ster, 2 N. H. 287 ; Thorndike v. Richards,
1 Shepl. 437 ; Alien v. Allen, 3 Shepl. 287 ;
Woodman v. Lane, 7 N. H. 241 ; Pernam
V. Weed, 6 Mass. 131 ; Riddick v. Leggatt,
3 Murphy, 539, 544; supra, § 290. See
also 4 Cruise's Dig. tit. 32, c. 21, § 31,
note (Greenleaf's edit.), [2 Greenleaf's
edit. (1856) vol. 2, pp. 628-641, and notes,]
where tliis subject is more fully considered.
1 Bull. N. P. 152 ; Milword v. Ingram,
1 Mod. 206 ; 2 Mod. 43, s. c. ; Edwards v.
Weeks, 1 Mod. 262 ; 2 Mod. 259, s. c. ;
1 Freem. 230, s. c. ; Lord Milton v. Edge-
worth, 5 Bro. P. C. 318 ; 4 Cruise's Dig.
Ut, 82, ^,. 3, § 51 ; Clement v. Durgin, 5
Greenl. 9; Cottrill v. Myrick, 3 Eairf.
222; Ratcliflf v. Pemberton, 1 Esp. 35;
Fleming ;;. Gilbert, 3 Johns, 531. But if
the obUgation be by deed, and there be a
parol agreement in discharge of such obli-
gation, if the parol agreement be exe-
cuted, it is a good discharge. Dearborn
V. Cross, 7 Cowen, 48. See also Littler v.
Holland, 3 T. R. 390 ; Peytoe's case, 9
Co. 77 ; Kaye v. Waghorne, 1 Taunt.
428 ; Le Fevre v. Le Fevre, 4 S. & R. 241 ;
Suydam v. Jones, 10 Wend. 180 ; Bar-
nard V. Darling, 11 Wend. 27, 30. In
equity, a parol rescission of a written con-
tract, after breach, may be set up in bar
of a bill for specific performance. Walk-
er V. Wheatley, 2 Humphreys, R. 119.
By the law of Scotland, no written obli-
gation whatever can be extinguished or
renounced, without either the creditor's
oath, or> a writing signed by him. Tail
on Evid. p. 325.
2 Phil. & Am. on Evid. 776 ; 2 Phil.
Evid. 363 ; Goss v. Ld. Nugent, 5 B. & Ad.
58, 65, 66, per Ld. Denman, C. J. ; Stow-
ell V. Robinson, 3 Bing. n. c. 928 ; Cum-
mings V, Arnold, 3 Met. 486 ; [Stearns v.
Hall, 9 Cush. 31, 34.]
8 Harvey v. Grabham, 5 Ad. & El. 61,
74 ; Marshall v. Lynn, 6 M. &. W. 109.,
* [*Lawrence v. Dole, 11 Vt. R. 549.
The same is held in Leatho v- BuUard, 8
Gray, 546.J
352 LAW OP EVIDENCE. [PART 11.
a contract under seal may be modified by a naked oral agreement,
provided the other party have so acted upon such modification
that he cannot be placed in statu quo.]
§ 303. Neither is the rule infringed by the admission of oral
evidence to prove a neiv and distinct agreement, upon a new con-
sideration, whether it be as a substitute for the old, or in addition
to and beyond it. And if subsequent, and involving the same
subjeci^matter, it is immaterial whether the new agreement be
entirely oral, or whether it refers to and partially or totally adopts
the provisions of the former contract in writing, provided the old
agreement be rescinded and abandoned. i^^'^hus, where one by an
instrument under seal agreed to erect a building for a fixed price,
which was not an adequate compensation, and, having performed
part of the work, refused to proceed, and the obligee thereupon
promised that, if he would proceed, he shovdd be paid for his labor
and materials, and should not suffer, and he did so ; it was held
that he might recover in assumpsit upon this verbal agreement.^
So, where the abandonment of the old contract was expressly
mutual.^ So, where a ship was hired by a charter-party under
seal, for eight months, commencing from the day of her sailing
from Gravesend, and to be loaded at any British port in the
English Channel ; and it was afterwards agreed by parol that ■ she
should be laden in the Thames, and that the freight should com-
mence from her entry outwards at the custom-house ; it was held
that an action would lie upon the latter agreement.*
§ 304. It is also well settled that, in a case of a simple contract
in writing, oral evidence is admissible to show that, by a subse-
quent agreement, the time of performance was enlarged, or the
place of performance changed, the contract having been performed
according to the enlarged time, or at the substituted place, or the
1 Burn V. Miller, 4 Taunt. 745 ; Foster tracts, for service on two distinct voyages",
V. Alanson, 2 T. R. 479 ; Shack v. An- are made at tlie same time, and one only
thony, 1. M. & S. 573, 575; Sturdy v. is reduced to writing, the other maybe
Arnaud, 3 T. R. 596 ; Brigham v. Rogers, proved by parol. Page v. Sheffield, 2
17 Mass. 573, per Putnam, J. ; Heard v. Curtis, C. C. 877 ; Cilley v. Tenney, 31
Wadham, 1 East, 630, per Lawrence, J. ; Vt. 401.] [*But new terms cannot be in-
1 Chitty on PI. 93 ; Richardson v. Hooper, corporated into a written contract by
13 I'ick. 446 ; Brewster v. Countryman, parol. Adler v. Priedman, 16 Cal. 138.1
12 Wend. 446 ; Delacroix v. Bulkeley, 13 = Munroe v. Perkins, 9 Pick. 298
Wend. 71 ; Vicary v. Moore, 2 Watts, [See also Rand v. Mather, 11 Cush. 1.1
456, 457, per Gibson, C. J. ; Brock v. ' Lattimore v. Harsen, 14 Johns. 330.
Sturdivant, 3 Fairf. SVf Marshall v. * White v. Parkin, 12 East, 578;
Baker, 1 Appleton, R. 402 ; Chitty on [Holmes v. Doane, 9 Cush. 135.]
Contracts, p. 88. [Where two distinct con-
CHAP. XT.] ADMISSIBILITY OP PAEOL EVIDENCE.
353
performance having been prevented by the act of the other party ;
or that the damages for non-performance were waived and re-
mitted ; ^ or that it was founded upon an insufficient or an unlaw-
ful consideration, or was without consideration ; ^ or that the agree-
ment itself was waived and abandoned.^ So, it has been held
competent to prove an additional and suppletary agreement, by
parol ; as, for example, where a contract for the hire of a horse was
in writing, and it was further agreed by parol that accidents,
occasioned by his shying, should be at the risk of the hirer.* A
further consideration may also be proved by parol, if it is not of
a different nature from that which is expressed in the deed.^
And if the deed appears to be a voluntary conveyance, a valuable
consideration may be proved by parol.**
§ 305. In regard to receipts, it is to be noted that they may be
either more acknowledgments of payment or delivery, or they may
also contain a contract to do something in relation to the thing
delivered. In the former case, and so far as the receipt goes only
1 Jones V. Barkley, 2 Doug. 684, 694;
Hotham v. E. In. Co. 1 T. R. 638; Cum-
mings V. Arnold, 3 Met. 486 ; Clement v.
Durgin, 5 Greenl. 9 ; Keating v. I'rice,
1 Johns. Cas. 22 ; Fleming v. Gilbert, 3
Johns. 530, 531, per Thompson, J.; Er-
win V. Saunders, 1 Cowen, 249 ; Erost v.
Everett, 6 Cowen, 497 ; Dearborn v.
Cross, 7 Cowen, 50 ; Neil v. Cheves, 1
Bailey, 537, 538, note (a) ; Cuff v. Penn,
I M. & S. 21; Robinson v. Baehelrler, 4
N. Hamp. 40 : Medomak Bank v. Curtis,
II Sliepl. 36 ;' Blood v. Goodrieh, 9 Wend.
68; Youqua v. Nixon, 1 Peters, C. C. R.
221. But see Marshall v. Lynn, 6 M. &
W. 109.
^ See supra, § 26, cases in note ; Mills
V. Wyman, 3 Pick, 207 ; Erwin v. Saun-
ders, 1 Cowen, 249 ; Hill v. Buekminster,
5 Pick. 391 ; Rawson v. Walker, 1 Stark,
R. 361 ; Foster v. Jolly, 1 C. JI. & R. 707,
708, per Parke, B. ; Stackpole r. Arnold,
11 Mass. 27, 32; Folsom v. Mussey, 8
Greenl. 400.
3 Ballard v. Walker, 3 Johns. Cas. 60;
Poth. on Obi, pt. 3, ch. 6, art. 2, No. 636;
Marshall v. Baker, 1 Appleton, 402 ; Eden
V. Blake, 13 M. & W. 614.
* Jcficry v. Walton, 1 Stark. R. 267.
In a suit for breach of a written agree-
ment to manufacture and dclii'er weekly
to the plaintiff a certain quantity of cloth,
at a certain price per yard, on eight
months' credit, it was held, that the de-
fendant might give in evidence, as a gobd
defence, a subsequent parol agreement
between him and the plaintiff, made ou
sufficient consideration, by which the
mode of payment was varied, and that
the plaintiff had refused to perform the
paji'ol agreement. Cmnmings v. Arnold,
3 Met. 486. See furtlier, Wright v.
Crookes, 1 Scott, n. s. 685. Where the
action is for work and labor extra and
beyond a written contract, the plaintiff
will be held to produce the written con-
tract, for the purpose of showing what
"was included in it. Buxton v. Cornish,
12 M. & W. 426 ; Vincent v. Cole, 1 M. &
Malk. 257. [It may be shown by parol
that, at the time a promissory note was
given by A to B for money lent, an agree-
ment was made to pay a ceitain sum as
extra interest. Rohan v. Hanson, 11
Cush. 44, 46. The date of a contract in
writing, when referreil to in the body of
the contract, as fixing the time of pay-
ment, cannot he altered or varied by pa-
rol. Joseph v. Bigolow, 4 Cusli. 82, 84.
The time of performance of a written con-
tract within the statute of frauds, may be
shown to have been enlarged by a subse-
quent parol agreement. Stearns v. PlaU,
9 Cush. 31, 34.]
5 CUffbrd V. Turrill, 9 Jur. 633. [Mil-
ler V. Goodwin, 8 Gray, 542 ; I'icrco v.
Weymouth, 45 Maine, 481; Shoenberger
!'. Zook, 84 Penn. 24.|
" Pott V. Todhunter, 2 Collyer Ch.
Cas. 76, 84.
30*
354
LAW OP EVIDENCE.
[PAET II.
to acknowledge payment or delivery, it is merely primd facie
evidence of the fact, and not conclusive ; and therefore the fact
which it recites may be contradicted by oral testimony. But in
so far as it is evidence of a contract between the parties, it stands
on the footing of all other contracts in writing, and cannot be
contradicted or varied by parol.^ Thus, for example, a bill of
lading, which partakes of both these characters, may be contra-
dicted and explained in its recital, that the goods were in good
order and well conditioned, by showing that their internal order
and condition was bad; and, in like manner, in any other fact
which it erroneously recites ; but in other respects it is to be
treated like other written contracts.^
"We here conclude the Second Part of this Treatise.
1 Stratton v. Rastall, T. E. 366 ; Alner
V. George, 1 Campb. 392; supra, § 26,
note ; Stackpole v. Arnold, 11 Mass. 27,
82 ; Tucker v. Maxwell, Id. 143 ; Johnson
V. Johnson, Id. 359, 363, per Parker, C. J.;
Wilkinson v. Scott, 17 Mass. 257 ; Rex v.
Scammonden, 3 T. R. 474; Rollins v.
Dyer, 4 Shepl. 475 ; Brooks v. White, 2
Met. 283 ; Niles v. Culver, 4 Law Eep.
72, N. s. " The true view of the subject
seems to be, that such circumstances, as
would lead a Court of Equity to set aside
a contract, such as fraud, mistake, or sur-
prise, may be shown at law to destroy the
eftect of a receipt." Per Williams, J.,
In Fuller v. Crittenden, 9 Conn. 406 ;
supra, § 285. [A discharge on an execu-
tion is only a receipt and may be ex-
plained by parol evidence. Edgerly v.
Emerson, 3 Poster, 555; supra, § 212.
See also Brown o. Cambridge, 3 Allen,
474.]
2 Barrett v. Rogers, 7 Mass. 297 ; Ben-
jamin V. Sinclair, 1 Bailey, 174. In the
latter case it was held, that the recital in
the biU of lading, as to the good order and
condition of the goods, was applicable only
to their external and apparent order and
condition ; but tliat it did not extend to
the quality of the material in which they
were enveloped, nor to secret defects in
the goods themselves ; and that, as to de-
fects of the two latter descriptions, parol
evidence was admissible. See also Smith
V. Brown, 3 Ilawks, 580; May v. Bab-
cock, 4 Ohio R. 334, 346 ; [Clark v. Bai-n-
well, 12 How. U. S. 272; O'Brien v.
Gilchrist, 34 Maine, 554 ; Ellis v. Willard,
5 Selden, 629 ; Fitzhugh v. Wiman, lb.
659, 666 ; McTyer v. Steele, 26 Ala. 487.
Where the payee of a promissory note,
not negotiable, for |120, delivered it to a
third person, and took back the following
writing: "Received of A a note (de-
scribing it), for which I am to collect and
account to the said A the sum of §110,
when the above note is collected, or re-
turn said note back to said A if I choose ; "
it was decided that parol evidence, which
was offered to show that the note was held
on other and different terms, was rightly
excluded. Langdon v. Langdon, 4 Gray,
186, 188 ; Furbush v. Goodwin, 5 Foster,
425 ; Wood v. Whiting, 21 Barb. 190, 197.
See also Alexander v. Moore, 19 Mis. 143;
Sutton V. Ivettell, Sprague's Decisions,
309.]
[ § 305a. " The rule, that parol evi-
dence is not admissible to vary or control
a written contract, is not applicable to
mere hills of parcds made in the usual
form, in which nothing appears but the
names of the vendor and vendee, the arti-
cles purchased, with the prices affixed,
and a receipt of payment by the vendor.
These form an exception to the general
rule of evidence, being informal docu-
ments, intended only to specify prices,
quantities, and a receipt of payment, and
not used or designed to embody and set
out the terms and conditions of a contract
of bargain and sale. They are in the na-
ture of receipts, and are always open to
evidence, which proves the real terms
upon which the agreement of sale was
made between the parties. 1 Cowen &
I-lill's note to Phil, on Evid. 385, n. 229 ;
2 lb. 003, n. 295 ; Harris v. Johnston, 3
Cranch, 311 ; Wallace v. Rogers, 2 N. H.
506 ; Bradford v. Manley, 13 Mass. 139 ;
Fletcher v. Willard, 14 I'ick. 464." By
BIgelow, J., in Hazard v. Loring, 10 Cusli.
267, 208. The words, on a hill of parcels,
" consigned 6 mo. " and " Terms Cash,"
CHAP. XT.] ADMISSIBILITY OP PAROL ETIDENCB.
355
may be explained by parol. George v.
Joy, 19 N. H. 544. See Linsley v. Love-
ly, 26 Vt. 123.]
[ * It may be shown that a bond, abso-
lute in its terms, was intended as collat-
eral security for the debt of third parties.
Chester v. Bank of Kingston, 16 N. Y.
Court of Appeals, 336. So also that an
option was intended to be left with one of
the parties when the writing is silent.
Chalfant v. Wilhams, 85 Penn. St. 212.
But this latter seems questionable upon
strict principle.]
PART III.
IlSrSTRUMEN^TS OF EVIDEISTCE.
PAET III.
OF THE INSTRUMENTS OF EVIDENCE.
CHAPTBE I.
OP WITNESSES, AND THE MEANS OP PKOCUEING THEIE ATTENDANCE.
[* § 306. The instruments of evidence next considered.
307. These are written and unwritten.
308. Classification of the subject.
309. Attendance of witnesses compelled by subpoena.
310. The witness fees must be paid in advance.
811. The state is excused from paying witnesses in advance.
312. Witness imprisoned may be brought up on habeas corpus.
313. State witnesses may be recognized for their appearance.
314. One day's notice required in all cases.
315. The service must be personal, and witliin jurisdiction of court.
316. Witness exempt from arrest, going to, attending, and retxirning from court.
317. Privilege extends to all tribunals in nature of courts.
318. Court wiU, in such cases, discharge arrest, on motion.
319. Witness refusing to attend, or to give evidence, may be punished for con-
tempt.
320. Depositions may be taken where witness cannot attend court.
321. Provisions in the different states for taking depositions.
322. The mode of taking depositions in United States Courts.
323. Regularity and cause of taking must appear.
324. United States Courts take depositions by dedimus potestatem.
325. Testimony may be perpetuated in equity.]
§ 306. Having thus considered the general nature and princi-
ples of evidence, and the rules which govern in the production of
evidence, we come now, in the third place, to speak of the instru-
ments of evidence, or the means by which the truth in fact is
established.^ In treating this subject, we shall consider how such
1 Parties are, ordinarily, permitted to the discretion of the judge, be admitted,
exercise their own judgment, as to the if it is expected to become relevant by its
order of introducing their proofs. Lynch connection with other testimony to be
V. Benton, 3 Eob. Louis. R. 105. And afterwards offered. The State v. M'Allis-
testimony, apparently irrelevant, may, in ter, 11 Shepl. 139
[859]
360 LAW OP EVIDENCB. [PART HI.
instruments are obtained and used, and their admissibility and
effect.
§ 307. Tlie instruments of evidence are divided into two general
classes, namely, unwritten and written. The former is more natu-
rally to be first considered, because oral testimony is often the
first step in proceeding by documentary evidence, it being fre-
quently necessary first to establish, in that mode, the genuineness
of the documents to be adduced.
§ 308. By unwritten, or oral evidence, is meant the testimony
given by witnesses, vivd voce, either in open court, or before
a magistrate, acting under its commission, or the authority of law.
Under this head it is proposed briefly to consider, — (1.) The
method, in general, of procuring the attendance and testimony
of witnesses ; — (2.) The competency of witnesses ; — (3.) The
course and practice in the examination of witnesses ; and herein,
of the impeachment and the corroboration of their testimony.
§ 309. And first,\u. regard to the method of procuring the at-
tendance of witnesses, it is to be observed that every court, having
power definitely to hear and determine any suit, has, by the com-
mon law, inherent power to call for all adequate proofs of the
facts in controversy, and, to that end, to summon and compel
the attendance of witnesses before it.^ The ordinary summons is
a writ of subpoena, which is a judicial writ, directed to the witness,
commanding him to appear at the court, to testify what he knows
in the cause therein described, pending in such court, under a
certain penalty mentioned in the writ. If the witness is expected
to produce any books or papers in his possession, a clause to that
effect is inserted in the writ, which is then termed a subpoena duces
tecum?- The writ of subpoena suffices for only one sitting, or term
of the court. If the cause is made a remanet, or is postponed by
1 [The House of Eepresentatires of describing witli precision tlie papers and
Massacliusetts has power to compel wit- documents to be produced), " together
nesses to attend and testify before the with all copies, drafts, and voucliers, re-
House or one of its committees ; and the lating to the said documents, and all other
refusal of a witness to appear is a con- documents, letters, and paper writings
tempt for which the House may cause whatsoever, that can or may afford any
him to 'be arrested, and brought before information or evidence in said cause ;
the. House ; and for a refusal to testify he then and there to testify and show all and
may be imprisoned. Burnham v. Morris- singular those things, which you (or eitlior
sey, 14 Gray, 226.] of you) know, or the said documents, let-
2 This additional clause is to the fol- ters, or instruments in writing do import
lowing effect: "And, also, that you do of and concerning the said cause now de-
diligently and carefully search for, exam- pending. And this you (or any of yoii)
ine, and inquire after, and bring with you shall in no wise omit," &e. 8 Chitty's
and produce, at the time and place afore- Gen. Practice, 830, n. ; Amey v. Long, 9
eaid, a bill of exchange, dated," &c. (here East, 473.
CHAP. I.] ATTENDANCE OP WITNESSES. 861
adjournment; to another term or session, the witness must be sum-
moned anew. The manner of serving the subpoena being in general
regulated by statutes, or rules of court, which in the different
states of the Union are not perfectly similar, any further pursuit
of this part of the subject would not comport with the design
of this work.i And the same observation may be applied, once
for all, to all points of practice in matters of evidence, which ai-e
regulated by local law.
§ 310. In order to secure the attendance of a witness in civil
cases, it is requisite by stat. 5 Eliz. c. 9, that he " have tendered
to him, according"' to his countenance or calling, his reasonable
charges." Under this statute it is held necessary, in England,
that his reasonable expenses, for going to and returning from the
trial, and for his reasonable stay at the place, be tendered to him
at the time of serving the subpoena ; and, if he appears, he is not
bound to give evidence until such charges are actually paid or
tendered,^ unless he resides, and is summoned to testify, within
the weekly bills of mortality ; in which case it is usual to leave
a shilling with him, upon the delivery of the subpoena ticket.
These expenses of a witness are allowed pursuant to a scale,
graduated according to his situation in life.^ But in this country
these reasonable expenses are settled by statutes, at a fixed sum
for each day's actual attendance, and for each mile's travel, from
the residence of the witness * to the place of trial and back, without
1 The English practice iS stated in 2 Bing. 725 ; Id. 729, s. o. ; Collins v. Gode-
Tidd's Prac. (9th edit.) 805-809 ; 1 Starlc. froy, 1 B. & Ad. 950. There is also a dis-
Evid. 77 et seq. ; 3 Chitty's Gen. Prac. tinction between a witness to facts, and a
828-834; 2 Phil. Erid. 370-392. The witness selected by a party to give his
American practice, in its principal fea- opinion on a subject with which he is pe-
tures, may be collected from the cases culiarly conversant from his employment
cited in tfie United States Digest, vol. 3, in life. The former is bound, as a matter
tit. Witness, II.; Id. Suppt. vol. 2, tit. of public duty, to testify to facts within
Witness, I. ; 1 Paine & Duer's Practice, his knowledge. The latter is under no
Part 2, ch. 7, § 4 ; Conklin's Practice, such obligation ; and the party who selects
Part 2, ch. 2, § 7, pp. 253-293 ; Howe's him must pay him for his time, before ho
Practice, 228-230. will be compelled to testify. Webb v.
2 Newton v. Harland, 9 Dowl. 16. Page, 1 Car. & ICir. 23.
8 2 Phil. Evid. pp. 375, 376; 2 Tidd's < It has been held, that, for witnesses
Pr. (9th edit.) p. 806. An additional com- brought from another state, no fees can
pansation, for loss of time, was formerly be taxed for travel, beyond the line of the
allowed to medical men and attorneys ; state in which the cause is tried. How-
but that rule is now exploded. But area- land o. Lenox, 4 Johns. 311 ; Newman v.
sonable compensation paid to a foreign The Atlas Ins. Co. Philhp's Dig. 113;
witness, wlio refused to come without it, Melvin v. Whiting, 18 Pick. 190; White
and whose attendance was essential in the v. Judd, 1 Met. 293. But the reasons for
cause, will in general be allowed and taxed these decisions are not stated, nor are
against the losing party. See Lonergan they very easily perceived. In England,
I'. The Royal Exchange Assurance, 7 the early practice was to allow aU tfie ex-
VOL. i. 31
SQ2 LAW OP EVIDENCE. [PAET III.
regard to the employment of the witness, or his rank in life. The
^ums paid are not alike in all the states, but the principle is
believed to be everywhere the same. In some states, it is sufficient
CO tender to the witness his fees for travel, from his home to the
place of trial, and one day's attendance, in order to compel him
to appear upon the summons ; but in others, the tender must
include his fees for travel in returning.^ Neither is the practice
uniform in this country, as to the question whether the witness,
having appeared, is bound to attend from day to day, until the
trial is closed, without the payment of his daily fees ; but the
better opinion seems to be, that, without payment of his fees, he
is not bound to submit to an examination.^
§ 311. In criminal cases, no tender of fees is in general neces-
sary, on the part of the government, in order to compel its wit-
nesses to attend ; it being the duty of every citizen to obey a call
of that description, and it being also a case, in which he is himself,
in some sense, a party .^ But his fees will in general be finally
paid from the public treasury. In all siich cases, the accused is
entitled to have compulsory process for obtaining witnesses in his
favor.* The payment or tender of fees, however, is not necessary
in any case, in order to secure the attendance of the witness, if
he has waived it ; the provision being solely for his benefit.^ But
penses of bringing over foreign witnesses, Bliss v. Brainard, 42 N. H. 255, it is said
incurred in good faitli ; but a large sura the witness, at the end of each day, has
being claimed in one case, an order was the right to return home, if his fees for
made in the Common Pleas, that no costs the next day are not paid upon applica-
should be allowed, except while the wit- tion to the party summoning liim or to
ness was within the reach of process, his attorney.]
Hagedorn v. Allnut, 3 Taunt. 379. This ^ In New York, witnesses are bound to
order was soon afterwards rescinded, and attend for the state, in all criminal prose-
the old practice restored. Cotton v. Witt, cutions, and for the defendant, in any in-
4 Taunt. 55. Since which the uniform diotment, without any tender or payment
course, both in that court and in B. R., of fees. 2 Kev. Stat. p. 729, § 65; Cham-
has been to allow all the actual expenses berlain's case, 4 Cowen, 49. In Pennsyl-
of procuring the attendance of the witness, vania, the person accused may have process
and of his return. Tremain y. Barrett, 6 forhiswitnesses before indictment. United
Taunt. 88; 2 Tidd's Pr. 814; 2 Phil. States v. Moore, Wallace's R. 23. In
Evid. 376 (9th edit). And see Hutchins Massachusetts, in capital cases, tlie prisoner
V. The State, 8 Mis. 288. [See also Gun- may have process to bring in his witnesses
nison v. Gunnison, 41 N. H. 121.] at the expense of the commonwealth.
1 The latter is tlie rule- in the courts Williams's case, 13 Mass. 501. In Enq-
of the United States. See Conklin's Prac- land, the court has power to order tlie
tice, pp. 265, 266; LL. U. S. 1799, oh. 125 payment of fees to witnesses for the
[19], § 6, vol. 1, p. 571 (Story's edit.), [1 crown, in aU cases of felony; and, in
U. S. Stat, at Large (L. & B.'s edit.), some cases, to allow further compensa-
p. 626.] tion. Stat. 18 Geo. III., ch. 19 ; Pliil. &
2 1 Paine & Duer's Practice, 497 ; Hal- Am. on Evid. 788, 789 ; 2 Phil. Evid.
lett V. Mears, 14 East, 15, 16, note (a); 380; 1 Stark. Evid. 82, 83.
Mattocks V. Wheaton, 10 Verm. 493. * Const. U. S. Amendments, art. 6.
r*Iii a recent case in New Hampshire, ^ Goodwin v. West, Cro. Car. 522, 540
CHAP. I.] ATTENDANCE OP WITNESSES. 363
it is necessary in all ciyil cases, that the witness be summoned,
in order to compel him to testify ; for, otherwise, he is not obliged
to answer the call, though he be present in court ; but in criminal
cases, a person present in court, though he have not been sum-
moned, is bound to answer.^ And where, in criminal cases, the
witnesses for the prosecution are bound to attend upon tlic sum-
mons, witliout the payment or tender of fees, if, from poverty, the
witness cannot obey the summons, he will not, as it seems, be
guilty of a contempt.^
§ 312. If a witness is in custody, or is in the military or naval
service, and therefore is not at liberty to attend without leave of
his superior officer, which he cannot obtain/ he may be brought
into court to testify by a writ of habeas corpus ad testificandum.
This writ is gran table at discretion, on motion in open court, or
by any judge, at chambers, who has general authority to issue
a writ of habeas corpus. The application, in ciyil cases, is made
upon affidavit, stating the nature of the suit, and the materiality
of the testimony, as the party is advised by his counsel and verily
believes, together with the fact and general circumstances of re-
straint, which call for the issuing of the writ ; and if he is not
actually a prisoner, it shoiild state his willingness to attend.^ In
criminal cases, no affidavit is deemed necessary on the part of the
prosecuting attorney. The writ is left with the sheriff, if the wit-
ness is in custody ; but if he is in the military or naval service,
it is left with the officer in immediate command ; to be served,
obeyed, and returned, like any other writ of habeas corpus.* If
the witness is a prisoner of war, he cannot be brought up but by
an order from the Secretary of State ; but a rule may be granted
on the adverse party, to show cause why he should not consent
either to admit the fact, or that the prisoner should bo examined
upon interrogatories.^
§ 813. There is another method by which the attendance of
witnesses for the government, in criminal cases, is enforced,
namely, by recognizance. This is the usual course upon all exami-
nations, where the party accused is committed, or is bound over
I'or trial. And any witness, whom the magistrate may order to
1 Rex V. Sadler, 4 C. & P. 218 ; Black- « 2 Phil. Evid. 374, 375 ; Conklin's Pr.
burne v. Ilargreave, 2 Lewin, Cr. Cas. 264 ; 1 Paine & Duer's Pr. 503, 604 ; 3
259 ; [Uobinson v. TruU, 4 Cusli. 249.] Xidd's Pr. 809.
2 2 Pliil. Evid. 379, 383. 6 jurly v. Newnbam, 2 Doug. 418.
« Hex V. Koddam, Cowp. 67?.
364 LAW OP EVIDENCE. [PART HI.
recognize for his own appearance at the trial, if he refuses so to
do, may be committed. Sureties are not usually demanded, though
they may be required, at the magistrate's discretion ; but if they
cannot be obtained by the witness, when required, his own recog
nizance must be taken. ^
§ 314. The service of a sulpeena upon a witness ought always
to be made in a reasonable time before trial, to enable him to put
his affairs in such order, that his attendance upon the court may
be as little detrimental as possible to his interest.^ On this prin-
ciple, a summons in the morning to attend in the afternoon of
the same day has been held insufficient, though the witness lived
in the same town, and very near to the place of trial. In the
United States, the reasonableness of the time is generally fixed by
statute, requiring an allowance of one day for every certain num-
ber of miles distance from the witness's residence to the place
of trial ; and this is usually twenty miles. But at least one day's
notice is deemed necessary, however inconsiderable the distance
may be.^
§ 315. As to the manner of service, in order to compel the attend-
ance of the witness, it should be personal, since, otherwise, he
cannot be chargeable with a contempt in not appearing upon the
summons.* The subpoena is plainly of no force beyond the juris-
dictional limits of the court in which the action is pending, and
from which it issued ; but the courts of the United States, sitting
in any district, are empowered by statute,^ to send subpoenas for
witnesses, into any other district, provided that, in civil causes,
1 2 Hale, P. C. 282 ; Bennett v. Wat- as in England, a subpcena ticket, wliich is
BOn, 3 M. & S. 1 ; 1 Stark. Evid. 82 ; Ros- a copy of the writ, or more properly a
coe's Crim. Evid. p. 87 ; Evans v. Rees, statement of its substance, duly certified
12 Ad. & El. 55. [In the United States is delivered to the witness, at the same
courts, and, generally in the several time that the writ is shown to him. 1
states, authority is given by statute, to Paine & Duer's Pr. 496 ; I Tidd's Pr.
commit a witness who refuses or fails to 806 ; I Stark. Ev. 77 ; Phil. & Am. on
give the recognizance required by the Evid. 781, 782 ; 2 Phil. Evid. 373. But
court or magistrate ; and the practice is in the general practice is believed to be
accordance with the authority, and an al- either to' show the subpoena to the wit^
lowanco is made to the witnesses for the ness, or to serve him with an attested
time that they are so detained. Laws U. copy. The writ, being directed to the
S. 1846, eh. 98, § 7 (9 Stat, at Large, L. witness himself, may be shown or deliv-
& B.'s edit.), 73.] ered to him by a private person, and the
2 Hammond v. Stewart, 1 Stra. 510. service proved by afBdavit; or it may be
3 Sims V. Kitchen, 5 Esp. 46 ; 2 Tidd's served by the sheriff's officer, and proved
Pr. 806 ; 3 Chitty's Gen. Pr. 801 ; 1 Paine by his official return.
& Duer's Pr. 497 ; [Scammon v. Scam- « Stat. 1793, ch. 66, [22] § 6 ; 1 LL V
men, 33 N. H. 52.] S. p. 312 (Story's edit.), [1 U. S. Stata. at
* In some of the United States, as well Large (L. & B.'s edit.), 835,]
CHAP. I.] ATTENDANCE OP 'WITNESSES. 365
the witness do not live at a greater distance than one hundred
miles from the place of trial.^
§ 316. Witnesses as well as parties are protected from arrest
while going to the place of trial, while attending there, for the
pm-pose of testifying in the cause, and while returning home,
eunUo, morando, et redeuado? A subpoena is not necessary to pro-
tection, if the witness have consented to go without one ; nor is
a writ of protection essential for this purpose ; its principal use
being to prevent the trouble of an arrest, and an application for
discharge, by showing it to the arresting officer ; and sometimes,
especially where a writ of protection is shown, to subject the
officer to punishment, for contempt.^ Preventing, or using means
to prevent a witness from attending court, who has been duly
summoned, is also punishable as a contempt of court.* On the
same principle, it is deemed as a contempt to serve process upon
a witness, even by summons, if it be done in the immediate or
constructive presence of the court upon which ho is attending ; *
though any service elsewhere without personal restraint, it seems,
is good. But this freedom from arrest is a personal privilege,
which the party may waive ; and if he willingly submits himself
to the custody of the officer, he cannot afterwards object to the
imprisonment, as unlawful." The privilege of exemption from
arrest docs not extend through the wliolo sitting or term of the
court, at which the witness is summoned to attend ; but it con-
tinues during the space of time necessarily and reasonably em-
ployed in going to the place of trial, staying there until the trial
is ended, and returning home again. In making this allowance
' 111 most of the states, there are pro- elutled), provided they came bona fide."
visions by statute, for talcing the fleposi- KandaU v. Gurney, 3 B. & Aid. 252;
tions, of witnesses, wlio live more than a Hurst's case, 4 Ual. 387. It extends to
spccifieil number of miles from the place a witness coming from abroad, williout a
of trial. Hut these regulations are made subpoena. 1 Tidd's Pr. 195, 196; Norris
for the convenience of the parties, and do v. Beach, 2 Johns. 294.
not absolve the witness from the obliga- ^ Meekins v. Smith, 1 II. Bl. 636 ;
tion of personal attendance at the court, Arding v. Flower, 8 T. R. 536 ; Norris v.
at whatever distance it bo holden, if he Beach, 2 Johns. 294; United States v.
resides within its jurisdiction, and is duly Ednie, 9 S. & II. 147 ; Sandford v. Chase,
sunininneil. In Georr/ia, th(^ depositions 3 Covven, 381 ; Bours v. Tuckcrman, 7
of females may be taken in all civil cases. Johns. 538. [But see ex pane McNeil, 3
Rev. St. 1815 (by llotchkiss), p. 586. Mass. 288, and 6 Mass. 264, contra.]
2 This rule of protection was laid down, * Commonwealth v. Freely, 2 Virg.
upon deliberation, in the case of Meekins Cas. 1.
V. Sniilli, 1 ir. Bl. (336, as extending to '•' Cole v. Hawkins, Andrews, 275;
" all persons who had relation to a suit, Blight v. Fisher, 1 Peters, C. C. R. 41 ;
whicli called for their attendance, whetlier Miles v. McCuUough, 1 Binn. 77.
they wei-o compelled to attend by process " Brown v. Getchell, 11 Mass. 11, 14;
or not (ill which number bail were in- Geyer w. Irwin, 4 Dall. 107.
31*
366 LAW OP EVIDENCE. [PAET lU.
of time, the courts are disposed to bo liberal ; but unroasonaMe
loitering and deviation from the way will not be permitted.^ But
a witness is not privileged from arrest by his bail, on his return
from giving evidence ; and if he has absconded from his bail, he
may be retaken, even during his attendance at court.^
§ 317. This privilege is graiited in all cases where the attendance
of the party or witness is given in any matter pending before a
lawful tribunal having jurisdiction of the cause. Thus it has been
extended to a party attending on an arbitration, under a rule of
court ; ^ or on the execution of a writ of inquiry ; * to a bankrupt
and witnesses, attending before the commissioners, on notice;^
and to a witness attending before a magistrate, to give his deposi-
tion under an order of court.^
§ 318. If a person thus clearly entitled to privilege is unlaw-
fully arrested, the court, in which the cause is to be, or has been,
tried, if it have power, will discharge him upon motion; and not
put him to the necessity of suing out process for that purpose, or
of filing common bail. But otherwise, and where the question of
privilege is doubtful, the court will not discharge him out of cus-
tody upon motion, but will leave him to his remedy by writ ; and
in cither case the trial will be put off until he is released.'^
§ 319. Where a witness has been duly summoned, and his fees
paid or tendered, or the payment or tender waived, if he wilfully
neglects to appear, he is guilty of a contempt of the process of
court, and may be proceeded against by an attachment? It has
sometimes been held necessary that the cause should bo called on
for trial, the jury sworn, and the witness called to testify;^ but
the better opinion is, that the witness is to be deemed guilty of
1 Moekins v. Smith, 1 II. Bl. 636 ; Ran- on estate of insolvent person deceased, is
dall V. Gurney, 3 B. & Aid. 252 ; Willing- exempt from arrest on civil process,
ham V. Matthews, 2 Marsh. 57 ; Liglitfoot Wood v. Neale, 5 Gray, 538.1
V. Cameron, 2 W. Bl. 1113 ; Selby ;;. Hills, ' 1 Tidd's Tr. 197, 216 ; 2 Pahie & Du-
8 Bin;;. 106; Hurst's case, 4' IJaU. 387; er's Pr. 6, 10; Hurst's case, 4 Dall. 387;
Smyuie v. Banks, 4 Dall. 320; 1 Tidd's ex parte Erlme, 9 S. & R. 147; Sanford v.
Pr. 19."), 196, 197; Phil. & Am. on Evid. Chase, 3 Cowen, 381; [Seaver v. Kobin-
782, 783 ; 2 Phil. Evid. 374. son, 3 Duer, 022.]
^ 1 Tidd's Pr. 197 ; ex parte Lyne, 3 ^ 'Wliere two subpoenas were served
Stark. R. 470. the same day, on a witness, requiring his
2 Spence v. Stuart, 3 East, 89 ; Sanford attendance at different places, distant from
0. Chase, 3 Cowen, 381. each other, it was held that he might
* Walters c. Rees, 4 J. B. Moore, 84. make his election which he will obey
' Arding v. Plower, 8 T. R. 534; 1 Icehour v. Martin, Busbee, Law, N. C
Tidd's Pr. 197. 478.'
15 Kx parte Edme, 9 S. & R. 147. [* So » Bland v. SwafiTord, Peake's Cas. 60.
one attending meeting of commissioners
CHAP. I.] ATTENDANCE OP WITNESSES. " 367
contempt, whenever it is distinctly shown that he is absent from
court with intent to disobey the writ of subpoena; and that the
calling of him in court is of no other use than to obtain clear evi-
dence of his having neglected to appear ; but that is not necessary,
if- it can be clearly shown by other means that he has disobeyed
the order of court. ^ An attachment for contempt proceeds not
upon the ground of any damage sustained by an individual, but is
instituted to vindicate the dignity of the court ; ^ and it is said,
that it must be a perfectly clear case to call for the exercise of
this extraordinary jurisdiction.^ The motion for an attachment
should therefore be brought forward as soon as possible, and the
party applying must show, by affidavits or otherwise, that the
subpoena was seasonably and personally served on the witness,
that his fees were paid or tendered, or the tender expressly
waived, and that every thing has been done which was necessary
to call for his attendance.* But if it appears that the testimony
of the witness could not have been material, the rule for an at-
tachment will not be granted.^ If a case of palpable contempt is
shown, such as an express and positive refusal to attend, the
court will grant an attachment in the first instance ; otherwise,
the usual course is to grant a rule to show cause.^ It is hardly
necessary to add, that if a witness, being present in court, refuses
to be sworn or to testify, he is guilty of contempt. In all cases
'■ Barrow v. Humphreys, 3 B. & Aid. Cummins, 1 Yates, 1 ; Conkling's Pr.
598 ; 2 Tidd's Pr. 808. 265 ; 1 Paine & Duer's Pr. 500 ; 2 Tidd's
2 3 B. & Aid. 600, per Best, J. Where Pr. 807, 808. Tlie party injured by the
a justice of the peace lias power to bind non-attendance of a witness has also his
a witness by recognizance to appear at a remedy, by action on tlie case for dam-
higher court, he may compel his attend- ages, at common law ; and a further reme-
ance before himself for that purpose by dy, by action of debt, is given by Stat. 5
attachment. Bennett v. Watson, 3 M. & EUz. ch. 9 ; but these are deemed foreign
S. 1 ; 2 Hale, P. C. 282; Evans v. Eees, to the object of this work. [In Massachu-
12 Ad. & El. 55 ; SM;ira, § 313. setts, a statute (Rev. Stat. ch. 94, § 4)
* Home V. Smith, 6 Taunt. 10, 11 ; gives the aggrieved party an action against
Garden v. Creswell, 2 M. & W. 319 ; Hex a person duly summoned and obliged to
u Ld. J. Russell, 7 Dowl. 693. attend as a witness, if he fails to do so, for
* 2 Tidd's Pr. 807, 808; Garden v. all damages occasioned by such failure.
Creswell, 2 M. & W. 319 ; 1 Paine & Du- To maintain such action, the plaintiff
er's Pr. 499, 500 ; Conkling's Pr. 265. must prove that the witness was duly
^ Dicas V. Lawson, 1 Cr. M. & II. 934. summoned, and that his fees for travel
[The court will not compel the attendance and attendance were duly paid or ten-
of an interpreter or expert, who has neg- dered to him, according to the slatate
levied to obey a suhpoma, unless in case of requisition ; and it is not sufficient in such
necessity. In the matter of Roelker, case, to prove a waiver on the part of the
Spragu'; 's Decisions, 276.] witness, of his right to be served with
" Auon. Salk.84; 4B1. Conim. 286, 287; summons and to have his fees tendered
Rex V. Jones, 1 Stra. 185 ; Jackson v, him. Robinson v. Trull, 4 Cush. 249.
Mann, 2 "Caines, 92; Andrews v. An- See also Lane «. Cole, 12 Barb. 268, which
draws. 2 Johns. Cas. 109; Thomas v. was an action by an aggrieved party
368 LAW OP EVIDENCE. [PAET III.
of contempt, the puuishment is by fine and imprisonment, at the
discretion of tlie court.^
§ 320. If the witness resides abroad, out of the jurisdiction, and
refuses to attend, or is sick and unable to attend, his testimony can
be obtained only by taking liis deposition before a magistrate, or
before a commissioner duly authorized by an order of the court
where the cause is pending; and if the commissioner is not a
judge or magistrate, it is usual to require that he be first sworn.^
This method of obtaining testimony from witnesses, in a foreign
country, has always been familiar in the courts of admiralty ; but
it is also deemed to be within the inherent powers of all courts of
justice. For, by the law of nations, courts of justice, of different
countries, are bound mutually to aid and assist each other, for the
furtherance of justice ; and Jience, when the testimony of a foreign
witness is necessary, the court before which the action is pending,
may send to the court, within whose jurisdiction the witness re-
sides, a writ, either patent or close, tisually termed a letter roga-
tory, or a commission sub mutuce vicissitudinis obtentu ac in juris
subsidiuni, from those words contained in it. By this instrument,
the court abroad is inforilied of the pendency of the cause, and the
names of the foreign witnesses, and is requested to cause their
depositions to be taken in due course of law, for the furtherance
of justice ; with an offer, on the part of the tribunal making the
reqviest, to do the like for the other, in a similar case. The writ
or commission is usually accompanied by interrogatories, filed by
the parties on each side, to which the answers of the witnesses
are desired. The commission is executed by the judge, who re-
ceives it, either by calHng the witness before himself, or by the
intervention of a commissioner for that purpose ; and the original
answers, duly signed and sworn to by the deponent, and jDroperly
authenticated, are returned with the commission to the court from
which it issued.^ The court of chancery has always freely exer-
against the defendant who was summoned record on accoimt of the ahsenoe of the wit-
to produce certain papers, which he did ness. Yeatman v. Derapsey, 6 Jur. n. s.
not produce, and for want of which the 778; s. c. 7 C. B., n. s. 628.1
plaintiff was nonsuited. Knott v. Smith, i 4 Bl. Comm. 286, 287; Ilex v Beard-
2 Sneed, 244 ; State v. Dill, lb. 414 ; Nel- more, 2 Burr. 7y2.
son V. iOwell, 2 Swan, 271.] [*And an = Ponsford v. O'Connor, 5 M. & W.
action will lie upon a contract to attend 673; Clay v. Stephenson, 3 Ad. & El. 807.
court and give testimony, although there ^ See Clerk's Praxi.s, tit. 27 ; Cunning-
be no allegation that the plaintiff had a ham v. Otis, 1 Gal. 166 ; Hall's Adm. Pr.
good cause of action, but only that the part 2, tit. 19, cum. add. and tit; 27, cum.
party was compelled to withdraw the add. pp. 37, 38, 55-60; Oughton's Ordo
CHAP. I.] ATTENDANCE OP WITNESSES. 869
cised this power, by a commission, either directed to foreign
magistrates, by their official designation, or, more usually, to iudi-
\iduals by name ; which latter course, the peculiar nature of its
jurisdiction and proceedings enables it to induce the parties to
adopt, by consent, where any doubt exists as to its inherent au-
thority. The courts of common law in England seem not to have
asserted this power in a direct manner, and of their own authority ;
but have been in the habit of using indirect means, to coerce the
adverse party into a consent to the examination of witnesses, who
were absent in foreign countries, under a commission for that pur-
pose. These means of coercion were various ; such as putting off
the trial, or refusing to enter judgment, as in case of nonsuit, if
the defendant was the recusant party ; or by a stay of proceedings,
till the party applying for the commission could have recourse to
a court of eqiiity, by instituting a new suit there, auxiliary to the
suit at law.^ But, subsequently, the learned judges appear not to
have been satisfied that it was proper for them to compel a party,
by indirect means, to do that which they had no authority to com-
pel him to do directly ; and they accordingly refused to put off
a trial for that purpose.^ This inconvenience was therefore reme-
died by statutes,^ which provide that, in all cases of the absence
Judiciorura, to!. 1, pp. 150, 151, 152, tit. within your jurisdiction, without whose
95, 96. See also Id. pp. 139-149, tit. 88- testimony justice cannot completely be
94. The general practice, in the foreign done between the said parties ; we there-
continental courts, is, to retain the original fore request you that, in furtherance of
deposition, which is entered of record, re- justice, you will, by the proper and usual
turning a copy duly authenticated. But process of your court, cause such witness
in the common-law courts, the production or witnesses as shall be named or pointed
of the original is generally required. Clay out to you by the said parties, or either
V. Stephenson, 7 Ad. & El. 185. The of them, to appear before you, or some
practice, howerer, is not uniform. See competent person by you for that purpose
an early instance of letters rogatory, in 1 to be appointed and authorized, at a pre-
Eoll. Abr. 530, pi. 15, temp. Ed. 1. The cise time and place, by you to be fixed,
following form may be found in 1 Peters, and there to answer, on their oaths and
C. C. E. 236, note (a). afiirmations, to the several interrogatories
hereunto annexed ; and that you will
United States of Amekioa. cause their depositions to be committed
District of ss *° '*™'''"S) ^^d returned to us under cover,
_,, . , . , ^- . ^ „ ' ' duly closed and sealed up, together with
Ihe president of the United States, to these presents. And we shaU be ready
any judge or tribunal having jurisdiction and wiUing to do the same for you in a
of civil causes, m the city (or province) of gimUar case, when required. Witness, &c.
; — , in the kingdom of , Greet- i purly v. Newnham, Doug. 419 ; Anon.
"°S ■ cited in Mostyn v. Fabrigas, Cowp. 174 j
1******1 Whereas a certain suit is 2 Tidd's Pr. 770, 810.
I SEAL. I pending in our Court ^ Cailland v. Vaughan, 1 B. & P. 210
*******! ^°'' *h^ district of , in See also Grant v. Ridley, 5 Man. & Grang
which A. B. is plaintiff [or 203, per Tindal, C. J. ; Macaulay v. Shack-
claimant, against the ship ], and C. ell, 1 Bligh, 119, 130, 131, n. s.
D. is defendant, and it has been suggested ' 13 Geo. III., e. 63, and 1 W. IV., c
to us that there are witnesses residing 22 ; Eeport of Commissioners on Chancery
370
LAW OP EVIDENCE.
[PART ni.
of witnesses, whether by sickness, or travelling out of the juris-
diction, or residence abroad, the courts, in their discretion, for
the due administration of justice, may cause the witnesses to be
examined under a commission issued for that purpose. In general,
the examination is made by interrogatories, previously prepared ;
but, in proper cases, the witnesses may be examined vivd voce, by
the commissioner, who in that case writes down the testimony
given ; or he may be examined partly in that manner and partly
upon interrogatories.^
§ 321. In the United States, provisions have existed in the stat-
utes of the several states, from a very early period, for the taking
of depositions to be used in civil actions in the courts of law, in
all cases where the personal attendance of the witness could not
be had, by reason of sickness or other inability to attend; and
also in cases wliere tlie witness is about to sail on a foreign
voyage, or to take a journey out of the jurisdiction, and not to
return before the time of trial.^ Similar provisions have also been
made in many of the United States for taking the depositions of
witnesses in perpetuam rei memoriam, without the aid of a court
Practice, p. 109 ; Second Report of Com-
missioners on Courts of Common Law,
pp. 23, 24. [In Castelli v. Groome, 12
Eng. Law & Eq. R. 426 (16 Jut. 88), it
was held that the court would not exercise
its discretion to grant the commission to
examine parties to tlie action under 1 W.
IV., c. 22, unless it is shown, by the
party applying therefor, that it is neces-
sary to the due administration of justice ;
and that it is not enough to show tliat the
plaintiff or defendant lives out of the juris-
diction of the court; Lord Campbell, C. J.,
saying, " it would lead to most vexatious
consequences, if constant recourse could
be had to this power ; and it would be so,
in all cases where the parties wished to
avoid the process of examination here."
Compton, J., said, " The only question in
my mind was, whether it was discre-
tionary or not to grant the rule, but that
has been settled by Ducket v. Williams, 1
Cr. & J. 510, s. c. 9 Law J. Rep. Exch.
177, and it has always been held so.
Formerly there was great difiioulty in
getting the commission allowed, and a
plaintiff could only get it by resorting to
equity. To remedy this inconvenience
the act was passed." For cases under
this statute see Bolin v. Meltidew, 5 Eng.
Law & Eq. R. 387, as to practice in exe-
cutmg commissions abroad in administer-
ing oaths under foreign law ; Lumley u.
Gye, 22 lb. 867, in a case where the mode
of examination differs from the Enghsh
practice, and issuing a fresh commission
where the former commission was in-
effectual, by reason of the refusal of the
witness to answer. In Davis v. Barrett,
7 lb. 207, the commissioners' return,
which omitted to state that the commis-
sioners and their clerks had taken the
oatlis, and where the commissioners had
not signed the interrogatories, was allowed
to be amended -in these several particu-
i' 2 Tidd's Pr. 810, 811 ; 1 Stark. Evid.
274-278 ; Phil. & Am. on Evid. pp. 796-
800 ; 2 Phil. Evid. 386, 387, 388 ; Pole v.
Rogers, 3 Bing. n. c. 780; [Solaman u.
Cohen, 3 Eng. Law & Eq. R. 585.]
2 See Stat. United States, 1812, ch. 25,
§ 3; [2 Stat, at Large (L. & B.'s edit),
682.] In several of the United States,
depositions may, in certain contingencies,
be taken and used in criminal cases. See
Arkansas Rev. Stat. 1837, ch. 44, p. 238 ;
Indiana Rev. Stat. 1843, ch. 54, g§ 39, 41;
Missouri Rev. Stat. 1845, ch. 138, §§ 11,
14 ; Iowa Rev. Code, 1851, ch. 190, 191.
[In Massachusetts, the defendant, after an
issuo of fact is joined on the indictment,
ma^ lave a commission to take the testi-
mony of a material witness residing out
of the state. Rev. Stat. ch. 136, § 32;
Acts of 1861, oh. 71.1
GUAP. I.] ATTENDANCE OP WITNESSES. 371
of equity, in cases where no action is pending. In these latter
cases there is some diversity in the statutory provisions, in regard
to the magistrates before wliom the depositions may be taken, and
in regard to some of the modes of proceeding, the details of which
are not within the scope of this treatise. It may suffice to state
that, generally, notice must be previously given to all persons
known to be interested in the subject-matter to which the testimony
is to relate ; that the names of the persons thus summoned must
be mentioned in the magistrate's certificate or caption, appended to
the deposition ; and that the deposition is admissible only in case
of the death or incapacity of the witness,^ and against those only
who have had opportunity to cross-examine, and those in privity
with them.
§ 322. In regard, also, to the other class of depositions, namely,
those taken in civil causes, under the statutes alluded to, there
are similar diversities in the forms of proceeding. In some of the
states, the judges of the courts of law are empowered to issue
commissions, at chambers, in their discretion, for the examination
of witnesses unable or not compellable to attend, from any cause
whatever. In others, though with the like diversities in form,
the party himself may, on application to any magistrate, cause the
deposition of any witness to be taken, who is situated as described
in the acts. In their essential features these ■ statutes are nearly
alike ; and these features may be collected from that part of the
Judiciary Act of the United States, and its supplements, which
regulate this subject.^ By that act, when the testimony of a person
is necessary in any civil cause, pending in a court of tlie United
States, and the person lives more than a 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 that
distance from the place of trial, or is ancient, ou very infirm, his
deposition may be taken de bene esse, before any judge of any
court of the United States, or before any chancellor or judge of
any superior court of a state, or any judge of a county court, or
court of common pleas, or any mayor or chief magistrate of any
1 The rule is the same in equity, in to take the deposition, if he pleases,
regard to depositions taken de bene esse, Prouty v. Kuggles, 2 Story, R. iy9 ; 4
because of the sickness of the witness. Law Rep. 161.
Weguelin v. Weguelin, 2 Curt. 263. " Tliese distances are various in the
2 Stats. 1789, ch, 20, § 30 ; Stat. 1793, similar statutes of the states, but are gen-
ch. 22, § 6; [1 TJ. S. Stats, at Large (L. erally thirty miles, though in some cases
& B.'s edit.), 88, 335.] This provision is less.
not peremptory ; it only enables the party
372
LAW OF EVIDENCE.
[pAET m.
citj'^ in tlie United States, not being of counsel, nor interested in
the suit ; provided that a notification from the magistrate before
whom the deposition is to be taken, to the adverse party, to be
present at the taking, and put interrogatories, if he think fit,
be first served on him or his attorney, as either may be nearest,
if either is within a hundred miles of the place of caption ; allow-
ing time, after the service of the notification, not less than "at the
rate of one day, Sundays exclusive, for every twenty miles' travel.^
The witness is to be carefully examined and cautioned, and sworn
or affirmed to testify the whole truth,^ and must subscribe the
testimony by him given, after it has been reduced to writing by
the magistrate, or by the deponent in his presence. The deposi-
tion, so taken, miist be retained by the magistrate, until he shall
deliver it with his own hand into the court for which it is taken ;
or it must, together with a certificate of the causes or reasons for
taking it, as above specified, and of the notice, if any, given to
the adverse party, be by the magistrate sealed up, -directed to the
court, and remain under his seal until it is opened in court.*
And such witnesses may be compelled to appear and depose as
1 In the several states, this authority
is generally delegated to justices of the
peace.
'■^ Under the Judiciary Act, § 30, there
must be personal notice served upon the
adverse party ; service by leaving a copy
at his place of abode is not sufldcient.
Carrington v. Stimson, 1 Curtis, Ct. Ct.
437. The magistrate in his return need
not state the distance of the place of resi-
dence of the party or his attorney from
the place where the deposition was taken.
Voce V. Lawrence, 4 McLean, 203. To
ascertain the proper notice in point of
time to be given to the adverse party, the
distance must be reckoned from the par-
ty's residence to tlie place of caption.
Porter v. Pillsbury, 36 Maine, 278. Where
the certificate states simply that the ad-
verse party was not personally present, a
copy of tlie notice and of the return of
service thereof, should be annexed; and
if it is not annexed, and it does not dis-
. tinctly appear that the adverse party was
present either in person or by counsel, the
deposition will be rejected. Carleton v.
Patterson, 9 Foster, 580 ; see also Bowman
.1. Sanborn, 5 lb 87.
* Where the state statute requires that
the deponent shall be sworn to testify to
the truth, the whole truth, &c., "relating
to tlie cause for which the deposition is to be
taken," the omissim of the magistrate in
his certificate to state that the witness
was so sworn, makes the deposition inad-
missible ; and the defect is not cured by
the addition that " after giving the depo-
sition he was duly sworn thereto accord-
ing to law." Parsons v. Hufi', 38 Maine,
137; Brighton v. Walker, 35 lb. 132;
Fabyan v. Adams, 15 N. H. 371. It
should distinctly appear that the oath
was administered where the witness was
examined. Erskine o. Boyd, 35 Maine,
511.
* The mode of transmission is not pre-
scribed by the statute ; and in practice it
is usual to transmit depositions by post,
whenever it is most convenient ; in wMch
case the postages are included in the
taxed costs. Prouty v. Ruggles, 2 Story,
U. 199 ; 4 Law Reporter, 161. Care must
be taken, however, to inform the clerk, by
a proper superscription, of the nature of
the document enclosed to his care ; for, if
opened by him out of court, though by
mistake, it will be rejected. Beal v.
Thompson, 8 Cranch, 70. But see Law
V. Xaw, 4 Greenl. 167; [A deposition nol
certified by the magistrate to have beon
signed by the deponent is admissible in
the Federal Courts. Voce v. Lawrence,
4 McLean, 203 ; but unless it is certified
to have been retained by the magistrate
until sealed up and directed to the proper
court, it is inadmissible in such courts.
Shankwiker v. Reading, lb. 420.]
CHAP. I.]
ATTENDANCE OF WITNESSES.
37S
above mentioned, in the same manner as to appear and testify
in court. Depositions, thus taken, may be used at the trial by
eitlier party, whether the witness was or was not cross-examined,'
if it sliall appear, to the satisfaction of the court, that the wit-
nesses are then dead, or gone out of the United States,^ or more
than a hundred miles from the place of trial, or that by reason
of age>, sickness, bodily infirmity, or imprisonment, they are unable
to travel and appear at court.
§ 323. The provisions of this act being in derogation of the
common law, it has been held that they must be strictly complied
with.^ But if it appears on the face of the deposition, or the cer-
1 Dwight V. Linton, 3 Rob. Louis. R.
67. [Wliere tlie testimony of a witness is
substantially complete, a deposition (taken
under a state statute), duly signed and
certified, is not to be rejected, because the
cross-examination was unfinished in con-
sequence of the sicl^ness or deatli of the
witness. If not so advanced as to be sub-
.stantially complete, it must be rejected.
Thus, where it appeared on the face of
the deposition that the cross-examination
was not finished, the defendant having
refused, in consequence of severe sick-
ness, of which he soon afterwards died, to
answer the nineteenth cross-interrogatory,
which only asked for a more particular
statement of fiicts to which tlie witness
had testified, the deposition was held to
l')ve been properly admitted. Fuller v.
Kire, 4 Gray, 843; Valton v. National
L.Kin, &c.. Society, 22 Barb. 9.]
^ • .1 proof of tlie absence of the wit-
ness it has been held not enough to give
evi.ience merely of inquiries and answers
at his residence ; but, that his absence
must be shown by some one who knows
the fact. Robinson v. Markis, 2 M. &
Rob. 375. And see Hawkins v. Brown, 3
Rob. Louis. R. 310, [§ 323, note; Weed v.
KelloiTK, 6 McLean, 44. Wiiere the cause
of taking the deposition was tliat the de-
ponent was about to leave the state, &c.,
and a subpoena had been issued at the
time of the trial, to the deponent, to ap-
pear as a witness, upon which a constable
of the place where the deponent resided,
had returncid that he made diligent in-
quiry and search for the witness, and
could not find him, it was held to be suf-
ficient proof of the deponent's absence, so
that the deposition could be used. Kin-
ney V. Berran, 6 Cush. 394.]
" Bell l: Morrison, 1 Peters, 355 ; the
" Thomas & Henry" v. The United Stiites,
1 Brockenbrough, 307 ; Nelson v. The
United States, 1 Peters. C. C. R. 235.
VOL. I. ,1.
The use of ex parte depositions, taken
without notice, under this statute, is not
countenanced by the courts, where evi-
dence of a more satisfactory character can
be obtained. The views of the learned
judges on this subject have been thus ex-
pi-essed by Mr. Justice Grier : — " While
we are on this subject, it will not be im-
proper to remark, that when the act of
congress of 1789 was passed, permitting
ex parte depositions, without notice, to be
taken where the witness resides more
than a hundred miles from the place of
trial, such a provision may have been
necessary. It then required nearly as
much time, labor, and expense to travel
one hundred miles as it does now to
travel one thousand. Now testimony
may be taken and returned from Califor-
nia, or any part of Europe, on commis-
sion, in two or three months.; and in any
of the states east of the Rocky Mountains
in two or three weeks. There is now sel-
dom any necessity for having recourse to
this mode of taking testimony. Besides,
it is contrary to the course of the common
law; and, except in cases of mere formal
proof (such !is the signature or execution
of an instrument of writing), or of some
isolated fact (such as demand of a bill,
or notice to an indorser), testimony thus
taken is liable to great abuse. At best, it
is calculated to eUcit only such a partial
statement of the trath as may have the
effect of entire falsehood. The person
who prepares the witness and examines
him, can generally have so much (jr so
little of the truth, or such a version of it
as will suit his case. In closely contested
cases of fact, testimony thus obtained must
always be unsatisfactory and Uable to sus-
picion, especially if the party has had time
and opportunity to take it in the regular
way. This provision of the act of con-
gress should never be resorted to, unless
in circumstances of absolute necessity
374
LAW OP EVIDENCE.
[part III.
tificaie which accompanies it, that the magistrate before whom it
was taken was duly authorized, within the statute, it is sufficient,
in the first instance without any other proof of his autliority;^
and his certificate will be good evidence of all the facts therein
stated, so as to entitle the deposition to be road, if the necessary
facts are therein sufficiently disclosed.^ In cases where, under
the authority of an act of congress, the deposition of a witness is
taken de hem esse, the party producing the deposition must show
affirmatively that his inability to procure the personal attendance
of the witness still continues ; or, in other words, that the cause
of taking the deposition remains in force. But this rule is not
applied to cases where the witness resides more than a hundred
miles from the place of trial, he being beyond the reach of com-
pulsory process. If he resided beyond that distance when the
deposition was taken, it is presumed that he continues so to do,
until the party opposing its admission shows that he has removed
within the reach of a subpoena.^
or in the excepted cases we have just
nieutioned." See Walsh v. Rogers, 13
How. s. c. R. 286, 287.
1 Ruggles V. Bucknor, 1 Paine, 358;
The Patapsco Ins. Co. v. Soutligate, 5
Peters, 604; Fowler v. Merrill, 11 How.
375; [Palmer v. Fogg, 35 Maine, 368;
Hoyt V. Hammekin, 14 How. U. S. 34G;
i'owler v. Merrill, 11 lb. 375 ; Lyon v. Ely,
24 Conn. 507. Where depositions aie
taken before a mayor and are certified by
him, though without an official seal, the
court will presume that he was mayor,
unless the contrary be shown. .Price v.
Morris, 5 McLean, 4 ; see also Wilkinson
V. Yale, 6 McLean, 16. Where it is made
the duty of tlie magistrate taking a depo-
sition to certify the reason for taking it,
his certificate of the cause of' taking is
prima fade proof of the fact, and renders
the deposition admissible, unless it is con-
trolled by other evidence. West Boylston
V. Sterling, 1 1 Pick. 126 ; Littlehale v. Di.x,
11 lb. 365. Nor is it necessary that it
shon I a;iyear by the deposition or the
certificate in wliat maimer, or by what
evidence, tlie magistrate was satisfied of
the existence of the cause of the taking.
It is enough, if he certifies to the fact
upon his ofScial responsibility. Thus,
where tlie magistrate duly certified that
the deponent lived more than thirty miles
from tlie place of trial, no evidence being
offered to control the certificate, and the
court not being bound to iake judicial no-
tice of the distance of one place from
another, it was held that the deposition
was rightly admitted. Littlehale v. Dix,
uh. supra. Where the magistrate certifies
that the " cause assigned by the plaintiff,"
w'lio was the party taking the deposition,
for taking the same, was the deponent's
being about to leave the commonwealth,
and not to return in time for the trial, it
is proper that such party should show tliat
the cause existed at the time of the trial.
Kinney v. Berran, 6 Cush. 394.]
'•^ Bell V. M'orrison, 1 J'eters, 356.
^ The Patapsco Ins. Co. v. Southgate,
5 Peters, 604, 616, 617, 618 ; I'ettibone v.
Derringer, 4 Wash. 215; 1 Stark. Evid.
277. [Where a deposition is taken under
the act of congress, without notice, the
adverse party, if dissatisfied, should have
it taken again. Goodhue v. Bartlett, 5
McLean, 186. Where the Federal Circuit
Court adopts the law and practice of the
state in taking depositions, it will be pre-
sumed to have adopted a modification
thereof, which has been followed for a
long time. But whatever be the state
law, the act of congress is to prevail,
which requires that the deponent should
live one hundred miles from the court.
Curtis V. Central Railroad, 6 McLean,
401.
A few cases are added, illustrating the
rules of law and the practice of the courts
in regard to admitting or rejecting depo-
sitions. Depositions of several witnesses,
taken under one commission on one set
of interrogatories, a part of wliich only
CHAP. I.]
ATTENDANCE OP WITNESSES.
375
§ 324. By the act of Congress already cited,i the power of the
courts of the United States, as courts of comnion law, to grant
a dedimus potestatem to take depositions, whenever it may be
necessary, in order to prevent a failure or delay of justice, is
expressly recognized ; and the circuit courts, when sitting as courts
of equity, are empowered to direct depositions to be taken in per-
petuam rei memoriam, according to the usages in chancery, where
the matters to which they relate are cognizable in those courts.
A later statute^ has facilitated the taking of depositions in the
former of these cases, by providing that when a commission shall
be issued by a court of the United States for taking the testimony
are to be propounded to each witness, can
be used in evidence. Fowler v. Merrill,
11 How. U. S. 375. If the words "before
me," preceding the name of the magis-
trate before whom the deposition was
taken and sworn, be omitted in the cap-
tion, the deposition is not admissible.
Powers V. Shepard, 1 Foster, N. II. 60.
"Where one party takes a deposition on in-
terrogatories, or portions of a deposition,
for the purpose of meeting the testimony
of a witness who lias deposed, or testi-
mony which he may expect the other
party will produce, but does not intend to
use the answers thereto, unless the other
testimony is introduced, he must accom-
pany the interrogatories with a distinct
notice in writing that his purpose is mere-
ly to meet the testimony of his adversary's
witness or witnesses ; and if this is not
done, the answers must be read to the
jury if required by the other party. This
is the most eligible rule in such cases,
and will save to each party all his just
rights, and prevent all unfairness and sur-
prise. By Metcalf, J., in Linfield v. Old
Colony K. 11. Corp. 10 Cush. 570. See
McKelvy v. DeWolfe, 20 Penn. State R.
374. A deposition taken under a commis-
sion duly issued on " interrogatories to be
put to M. H. B. of Janesville, Wisconsin,
laborer," but which purports by its cap-
tion to be the deposition of M. H. B., of
Sandusky, Ohio, and in which the depo-
nent states his occupation to be that of
peddler, is admissible in evidence, not-
withstanding the variance, if it appears
that the deponent is the same person to
whom the interrogatories are addressed.
Smith V. Castles, 1 Gray, 108. The ques-
tions appended to a commission sent to
Bremen were in English; the commis-
sioners returned the answers in German,
annexed to a German translation of the
questions ; the commission was objected
to on the ground that the return should
have been in English, or accompanied by
an English translation; but the objection
was overruled; and a sworn interpreter
was permitted to translate the answers
viva voce to the jury, Kuhtman v. BrowUj
4 Rich. 479. Where a deposition is taken
by a magistrate in another state, under a
written agreement that it may be so taken
upon the interrogatories and cross-inter-
rogatories annexed to' the agreement, such
agreement operates only as a substitute
for a commission to the magistrate named
therein, and a'waiver of objections to the
interrogatories in point of form, and does
not deprive either party of the riglit to
object, at the trial, to the interrogatories
and answers, as proving facts by incom-
petent evidence. Atlantic Mutual Ins.
Co. V. Eitzpatrick, 2 Gray, 279; Lord v.
Moore, 37 Maine, 208. And to exclude
the deposition on the ground of the in-
terest of the deponent, it is not necessary
that the objection should be taken before
the magistrate. Whitney v. Heywood, G
Cush. 82 ; infra, § 421, note. Where the
witnesss was interested at the time his
deposition was taken, and a release to
him was afterwards executed, the depo-
sition was not admitted. Reed v. Rice,
25 Vt. 171 ; EUis v. Smith, 10 Geo. 253.
If the deponent is disqualified by reason
of interest at the time of giving his depo-
sition, and at the time of the trial the dis-
qualification has been removed by statute,
the deposition can be used in evidence.
Haynes v. Rowe, 40 Maine, 181. Where,
after the deposition is taken, he becomes
interested in the event of the suit, by no
act of his own, or of the party who oifers
his testimony, the deposition is admissi-
ble. Sabine v. Strong, 6 Met. 670.1
1 Stat. 1789, ch. 20, § 30.
2 Stat 1827, ch. 4. See the practice
and course of proceeding in these cases,
in 2 Paine & Uuer's Pr. pp. 102-110; 3
Tidd's Pr. 810, 811, 812.
376 LAW OP EVIDENCE. [PART UI.
of a witness, at- any place -within the United States, or the territo-
ries thereof, the clerk of any court of the United States, for the
district or territory where the place may be, may issue a subpoena
for the attendance of the -witness before the commissioner, proTided
the place be in the county where the witness resides, and not more
than forty miles from his dwelling. And if the witness, being
duly summoned, shall neglect or refuse to appear, or shall refuse
to testify, any judge of the same court, upon proof of such con-
tempt, may enforce obedience, or puuisli the disobedience, in the
same manner as the courts of the United States may do, in case
of disobedience to their own process of subpoena ad testificandum.
Some of the states have made provision by law for the taking of
depositions, to be used in suits pending in other states, by bring-
ing the deponent within the operation of their own statutes against
perjury ; and national comity plainly requires the enactment of
similar provisions in all civilized countries. But as yet they are
far from being universal ; and whether, in the absence of such
provision, false swearing in such case is punishable as perjury,
has been gravely doubted. ^ Where the production of papers is
required, in the case of examinations under commissions issued
from courts of the United States, any judge of a court of the
United States may, by the same statute, order the clerk to issue
a subpoena duces tecum requiring the witness to produce such
papers to the commissioner, upon the affidavit of the applicant to
his belief that the witness possesses the papers, and that they are
material to his case ; and may enforce the obedience and punish
the disobedience of the witness, in the manner above stated.
§ 325. But independently of statutory provisions, chancery has
power to sustain bills, filed for the purpose of preserving the evi-
dence of witnesses in perpetuam rei memoriam, touching any matter
whicli cannot be immediately investigated in a court of law, or
where the evidence of a material witness is likely to be lost, by his
death, or departure from the jurisdiction, or by any other cause,
before the facts can be judicially investigated. The defendant, in
sucli cases, is compelled to appear and answer, and the cause is
brought to issue, and a commission for the examination of the
witnesses is made out, executed, and returned, in the same man-
ner as in other cases ; but no relief being prayed, the suit is never
1 CaiUand v. Vaughan, 1 B. & B. 210.
OHAP. I.] ATTENDANCE OP WITNESSES. 377
brought to a hearing; nor -will the court ordinarily permit the
publication of the depositions, except in support of a suit or action ;
nor then, unless the witnesses are dead, or otherwise incapable
of attending to be examined.^
1 Smith's Chancery Prac. 284-286.
82«
878 LAW OF EVIDENCE. [PART III.
CHAPTEE II.
OP THE COMPETENCY OF WITNESSES.
f *§ 326. The reasons for excluding certain kinds of evidence.
327. Classes of persons incompetent to testify.
328. Definitions of an oath.
329. General rule of the common law, that a party to the record cannot be a wit-
ness.
330. At common law, parties to the suit not compelled to give evidence for the
opposite party.
331. Whether corporators are parties within this rule, discussed.
332. Private corporations divided into moneyed and religious and charitable in ■
stitutions.
333. Members of the latter admissible as witnesses ; of the former, not.
334. Rule excluding parties applies to husband and wife.
335. Neither admitted as witness where the interests of the other involved.
330. Not material when the relation of husband and wife commenced.
337. Nor that the relation no longer exists.
338. Spirit and extent of rule, analogous to that excluding communications of
client to attorney.
339. Kule extends only to lawful mairiages.
340. Whether the rule may be relaxed by consent, authorities not agreed.
341. Where husband or ivife is not a party, but directly interested, the other is
incompetent to testify.
342. Rule is otherwise in collateral proceedings.
343. 344, 345. Some exceptions to the general rule.
346. Dying declarations of husband or wife sometimes admissible against the
other.
347. Rule excluding parties applies, however small the interest of the party.
348. Some exceptions to the rule excludmg parties.
349. Party sometimes admitted to prove facts which none but a party likely to
know.
350. Some exceptions to general rule arising from public necessity.
351. Another exception, admission of answer of defendant in equity.
352. Oath of party taken dicerso intuitu sometimes admitted in his favor.
853. No one nominally or substantially a party to tlie record compellable to testify.
354. One party not admissible for adverse party without consent of all parties to
tlie record.
355. Suit being ended as to one defendant, he may testify for others.
356. Rule formerly otherwise in actions on contracts.
857. But not in actions on torts.
858. Witness improperly made defendant to exclude his testimony may be made
competent by verdict in his favor, at discretion of court.
CHAP. II.] COMPETENCY OP WITNESSES. 379
§ 359. Witness ■made defendant by mistake may te omitted on motion.
360. Witness for co-defendant in ejectment may be defaulted and testify.
861. Parties to the record examined in chancery, how and when.
362. General principles as to admission or exclusion of parties same in civil and
criminal cases.
363. State must discharge a defendant before he can testify against others in-
dicted with liim.
364. When judges and attorneys may testify.
365. Persons deficient in understanding incompetent to testify.
366. Deaf and dumb persons may testify, after proof that they hare sufficient
understanding.
.S67. No precise age when children are excluded ; presumed to be competent at
fourteen.
368. Persons insensible to the obligations of an oath incompetent.
369. BeUef in the being of God and a future state of rewards and punishments
sufficient.
370. Defect of religious faith never presumed ; must be shown by party objecting.
371. Witnesses must be sworn in the manner they deem binding.
372. Persons infamous incompetent.
373. What crimes render perpetrator infamous.
374. Persons so disqualified when a party may make certain affidavits.
375. Only the judyment is evidence of person's guilt to render him incompetent.
376. Conviction in one country does not render witness incompetent in another.
377. Disability from infamy removed by reversal of judgment and by pardon.
378. Where disability is annexed by statute to the conviction of a crime, pardon
does not remove.
.S79. Particeps criminis not convicted and sentenced, not on that account incompe-
tent.
380. Degree of credit to be given to his testimony exclusively for the jury.
381. Courts not agreed .as to manner and extent of corroboration required.
382. Rule does not apply as to conspirators who early disclose the conspiracy.
383. 384. Party to a negotiable instrument competent witness to impeach it.
385. Weight of American autliority against English rule.
386. Parties legally interested in result of cause incompetent to testify.
387. Interest must be real and not merely apprehended.
388. Witness under an honorary obligation not disqualified.
389. Interest must be in the event of tlie cause, and not in the question.
390. True test, the gain or loss by witness by the judgment.
391. Magnitude or degree of interest not regarded.
392. Illustrations of tlie nature of the interest which disqualifies.
393. Witness, made liable by adverse event of suit, incompetent.
394. 395. Illustrations of tills rule.
396. Witness incompetent where his testimony by charging defendant discharges
himself
397. Obligation to indemnify against fact essential to judgment renders witness
incompetent.
398. Implied warrantors not competent to prove title.
399. Parties to negotiable instrument competent in suits between other parties.
400. Possible interest of such witnesses goes only to credibility.
401. But certain interest renders incompetent.
402 A\sa liability for costs of suit.
380 LAW OP EVIDENCE. • [PABX HI.
§ 403. Any interest in criminal prosecution renders witness incoibpetent.
404. Disqualification from interest in record considered.
405. Illustrations of interest in record as evidence.
406. Cases of interest in record as evidence and in event of suit.
407. Rule same in criminal cases.
408. Remote, contingent and uncertain interest does not disqualify.
409. Further illustrations of this rule.
410. Witness may testify against interest.
411. Classification of exceptions to general rule.
412. Witness entitled to reward from government not disqualified.
413. Nor when entitled to pardon.
414. Nor when witness will derive any other benefit from conviction of defendant.
415. Statute exceptions to general rule.
416. Agents competent for their principals.
417. Limitations of this rule.
418. Of interest subsequently acquired as disqualifying.
419. Offer to release interest restores competency of witness.
420. Equal interest on both sides no disqualification.
421. Objection of interest to be taken before direct examination.
422. When it arises from examination may be removed by further examination.
423. Interest must be shown either by examination of witness or by evidcnca
aliunde.
424. Definition of voir dire.
425. Interest of witness question for court.
426. Competency always restored by release.
427. Release must be by party holding interest.
428. Interests which cannot be reached by a release.
429. Release need not be delivered into hands of releasee.
430. Other methods of restoring competency.]
§ 326. Although, in the ordinary affairs of life, temptations to
practise deceit and falsehood may be comparatively few, and there-
fore men may ordinarily be disposed to believe the statements of
each other; yet, in judicial investigations, the motives to pervoc
the truth and to perpetrate falsehood and fraud are so greatly
multiplied, that if statements were received with the same uudis-
criminating freedom as in private life, the ends of justice could
with far less certainty bo attained. In private life, too, men can
inquire and determine for themselves whom they will deal with,
and in whom they will confide; but the situation ol juuf^-- r- ^.
jurors renders it difficult, if not impossible, in the narrow con^jiass
of a trial, to investigate the character of witnesses ; and from tlie
veiy nature of judicial proceedings, and the necessity of preventing
the multiplication of issues to be tried, it often may ] appen that
the testimony of a witness, unworthy of credit, may receive as
much consideration as that of oue worthy of the fullest confidence.
CHAP. II.] COMPETENCY OF WITNESSES. 381
If no means were employed totally to exclude any contaminating
influences from the fountains of justice, this evil would constantly
occur. But the danger has always been felt, and always guarded
against, in all civilized countries. And while all evidence is open
to the objection of the adverse party, before it is admitted, it has
been found necessary to the ends of justice, that certain kinds of
evidence should be uniformly excluded.^
§ 327. In determining what evidence shall be admitted and
weighed by the jury, and what shall not be received at all, or, in
other words, in distinguishing between competent and incompetent
witnesses, a principle seems to have been applied similar to that
which distinguishes between conclusive and disputable presump-
tions of law,^ namely, the experienced connection between the
situation of the witness, and the truth or falsity of his testimony.
Thus, the law excludes as incompetent, those persons whose evi-
dence, in general, is found more likely than otherwise to mislead
juries ; receiving and weighing the testimony of others, and giving
to it tliat degree of credit which it is found on examination to
deserve. It is obviously impossible that any test of credibility
can be infallible. All that can be done is to approximate to such
a degree of certainty as will ordinarily meet the justice of the
case. The question is not, whether any rule of exclusion may not
sometimes shut out credible testimony ; but whether it is expedient
that there should be any rule of exclusion at all. If the purposes
of justice require that the decision of causes should not be embar-
rassed by statements generally found to be deceptive, or totally
false, there must be some rule designating the class of evidence
to be excluded; and in this case, as in determining the ages
of discretion, and of majority, and in deciding as to the liability of
the wife, for crimes committed in company with the husband, and
in numerous other instances, the common law has merely followed
the common experience of mankind. It rejects the testimony (1.)
of parties ; (2.) of persons deficient in understanding ; (3.) of
persons insensible to the obligations of an oath ; and (4.) of per-
sons whose pecuniary interest is directly involved in the matter
in issue ; not because they may not sometimes state the truth, but
because it would ordinarily be unsafe to rely on their testimony.^
1 4 Inst. 279. matter in dispute might, trom the bias it
2 Supra, §§ 14, 15. creates, be an exception to the credit, but
° " If it be objected, that interest in the that it ought not to be absolutely so to the
382 LAW OP EVIDENCE. [PAET III.
Other causes concur, in some of these cases, to render the persons
incompetent, which will be mentioned in their proper places. We
shall now proceed to consider, in their order, each of these classes
of persons, held incompetent to testify ; adding some observations
on certain descriptions of persons, held incompetent in particular
cases.
§ 328. But here it is proper to observe, that one of the main
provisions of the law, for securing the purity' and truth of oral
evidence, is, that it be delivered under the sanction of an oath.
Men in general are sensible of the motives and restraints of reli-
gion, and acknowledge their accountability to that Being, from
whom no secrets are hid. In a Christian country it is presumed,
that all the members of the community entertain the common
faith, and are sensible to its influences ; and the law founds itself
on this presumption, while, in seeking for the best attainable
evidence of every fact, in controversy, it lays hold on the con-
science of the witness by this act of religion, namely, a public and
solemn appeal to the Supreme Being for the triath of what he may
utter. " The administration of an oath supposes that a moral
and religious accountability is felt to a Supreme Being, and this
is the sanction which the law requires upon the conscience, before
it admits him to testify." ^ An oath is ordinarily defined to be
a solemn invocation of the vengeance of the Deity upon the wit-
ness, if he do not declare the whole truth as far as he knows it ; ^
or, a religious asseveration by which a person renounces the
mercy, and imprecates the vengeance of Heaven, if he do not
competency, any more than the friendship the greatest interest ; many would betray
or enmity of a party, whose evidence is the most solemn obUgation and public
oflFered, towards either of the parties in the confidence for an interest very incon-
cause, or man}' other considerations here- siderable. An universal exclusion, where
after to be intimated ; the general answer no line short of this could have been
may be this, tliat in point of authority no drawn, preserves infirmity from a snare,
distinction is more absolutely settled ; and and integrity from suspicion ; and keeps
in point of theory, the existence of a di- the current of evidence, thus far at least,
rect interest is capable of being precisely clear and uninfected." 1 Gilb. Evid. by
proved ; but its influence on the mind is Loffl, pp. 223, 224.
of a nature not to discover itself to the ^ Wakefield v. Ross, 5 Mason, 18, per
jury ; whence it hath been held expedient Story, J. See also Menochius, De Prae-
to adopt a general exception, by which sumpt. lib. 1, quiEst. 1, n. 32, 33 ; Farinac.
witnesses so circumstanced are free from Opera, torn. 2, App. p. 162, n. 32, p. 281,
temptation, and the cause not exposed to n. 33 ; Bynkershoek, Observ. Juris Eom.
the hazard of the very doubtful estimate, lib. 6, cap. 2.
what quantity of interest in the question, ^ i Stark. Evid. 22. The force and utili-
in proportion to the character of the wit- ty of this sanction were familiar to thr
ness, in any instance, leaves his testimony Romans from the earliest times. The so'
entitled to belief Some, indeed, are in- emn oath was anciently taken by this fr
capable of being biased even latently by mula, the witness holding a flint stone
CUAP. Il.j COMPETENCY OP WITNESSES. 383
speak the truth." ^ But the correctness of this view of the nature
of an oath has been justly questioned by a late writer,^ on the
groiind that the imprecatory clause is not essential to the true
idea of an oath, nor to the attainment of the object of the law in
requiring this solemnity. The design of the oath is not to call
the attention of God to man ; but the attention of man to God ; —
not to call on Him to punish the wrongdoer ; but on man to
remember that He will. That this is all which the law requires
is evident from the statutes in regard to Quakers, Moravians, and
other classes of persons, conscientiously scrupulous of testifying
under any other sanction, and of whom, therefore, no other decla-
ration is required. Accordingly, an oath has been well defined,
by the same writer, to be " an outward pledge, given by the
juror" (or person taking it), "that his attestation or promise
is made under an immediate sense of his responsibility to God." ^
A security to this extent, for the truth of testimony, is all that the
law seems to have deemed necessary ; and with less security than
this, it is believed that the purposes of justice cannot be accom-
plished.
§ 329. And jirst, in regard to parties, the general rule of the
common law is, that a, party to the record, in a civil suit, cannot be
a witness either for himself, or for a co-suitor in the cause.* The
rule of the Roman law was the same. Omnibus in re proprid
dicendi testimonii facultatem jura submoverunt.^ This rule of the
common law is founded, not solely in the consideration of interest,
but partly also in the general expediency of avoiding the multi-
plication of temptations to perjury. In some cases at law, and
generally by the course of proceedings in equity, one party may
his right hand : Si sciensfaUo,tummeDiespi- Everitt, Cowp. 389. The subjeet of oaths
ter, salva urhe arceque, bonis ejiciat, tit ego is very fully and ably treated by Mr.
hanc lapidem. Adam's Ant. 247; Cic. Tyler, in his book on Oaths, their Nature,
Fam. Ep. vii. 1, 12; 12 Law Mag. (I^ond.) Origin, and History. Lond. 1834.
272. The early Christians refused to ut- i White's case, 2 Leach, Cr. Gas. 482.
ter any imprecation whatever ; Tyler on ^ Tyler on Oaths, pp. 12, 13.
Oaths, eh. 6 ; and accordingly, under the ^ Tyler on Oaths, p. 15. See also the
Christian Emperors, oaths were taken in report of the Lords' Committee, Id. In-
the simple form of religious asseveration, trod. p. xiv. ; 3 Inst. 165 ; Fleta, lib. 5, c.
invocato Dei Omnipotentis nomine, Cod. lib. 22 ; Eortescue, De Laud Leg. Angl. c. 26,
2, tit. 4, 1. 41 : sacrosanctis evangeliis tactis, p. 58.
Cod. lib. 3, tit.' 1, 1. 14. Constantine added « 3 Bl. Coram. 371 ; 1 Gilb. Evid. by
in a rescript, — Jurisjurandi religione testes, Loflfl, p. 221 ; Erear v. E vertson, 20 Johns.
prius quam perhiheant testimonium, jamdu- 142.
kum arctari prcecipimiis. Cod. lib. 4, tit. ^ Cod. lib. 4, tit. 20, 1. 10. Nullus ido-
20, 1. 9. See also Omichund v. Barier, 1 neus testis in re sua intelligitur. Dig. lib,
Atk. 21, 48, per Ld. Hardwicke ; WiUes, 22, tit. 5, 1. 10.
538, 8. 0. ; 1 Phil. Evid. p. 8; Ateheson v.
384
LAW OP EVIDENCE.
[PAET ni.
appeal to the conscience of the other, by calling him to answer
interrogatories upon oath. But this act of the adversary may be
regarded as an emphatic admission, that, in. that instance, the
party is worthy of , credit, and that his known integrity is a suffi-
cient guaranty against the danger of falsehood.^ But where the
party would volunteer his own oath, or a co-suitor, identified in
interest with him, would offer it, this reason for the admission of
' In several of the United States, any
party, in a suit at law, may compel the
adverse party to appear and testify as a
witness. In Connecticut, this may be done
in all cases. Eev. Stat. 1849, tit. 1, § 142.
So, in Ohio. Stat. March 23, 1850, §§ 1,
2. In Michigan, the applicant must first
make affidavit that material facts in his
case are known to the adverse party, and
that he has no other proof of them, in
which case he may be examined as to
those facts. Rev. Stat. 1846, ch. 102,
§ 100. In New York, the adverse party
may be called as a witness ; and, if so, he
may testify in his own behalf, to tlie same
matters to which he is examined in chief;
and if he testifies to new matter, the party
caUing him may also testify to such new
matters. Rev. Stat. vol. 3, p. 769, 3d
edit.' The law is the same in Wisconsin.
Rev. Stat. 1849, ch. 98, §§ 57, 60 ; [and
in New Jersey, Nixon's Digest (1855), p.
187.] In Missouri, parties may summon
each other as witnesses, in justices' courts ;
and, if the party so summoned refuses to
attend or testify, the other party may give
his own oath in litem. Rev. Stat. 1845,
ch. 93, §§ 24, 25. [In Massachusetts (Acts,
.1857, chap. 305), parties in all civil actions
and proceedings, including probate and
insolvency proceedings, suits in equity,
and all divorce suits, except those in
which a divorce is sought for the alleged
criminal conduct of either party, may be
admitted to testify in their own favor, and
may be called as witnesses by the opposite
party. In all actions in which the wife is
a party, or one of the parties to the action,
she and her husband are competent wit-
nesses for or against each other, but they
cannot testify as to private conversations
with each other. No person so testifying
is compelled to criminate himself; and if
one of the original parties to the contract
or cause of action then in issue and on
trial, be dead, or is shown to the court to
be insane ; or when an executor or admin-
istrator is a party to the suit or proceed-
ing, the other party cannot testify, except
in the last-named case, as to such acts
and contracts as have been done or made
since the probate of the will or tlie ap-
pointment of the administrator. The
depositions of such parties may be taken,
as of other witnesses, and the expense
thereof taxed in the bill of costs. The
laws relating to attesting witnesses to
wills are not affected by the act. Parties
are also, with certain exceptions, compe-
tent witnesses for either party ; in Maine,
Rev. Stat. (1857) ch. 82, §§ 78-83 ; in New
Hampshire, Acts of 1857, ch. 1952, pam-
phlet edition of Laws, p. 1868 ; in Vermont,
Acts of 1852, No. 13 (Nov. 23, 1852) ; Acts
of 1853, No. 13 (December 6, 1853) ; in
Rhode Island, Rev. Stat. (1857) ch. 187,
§ 34; in Connecticut, Pub. Stat. (Compila-
tion of 1854) p. 95, § 141 ; in Ohio, Rev.
Stat. (Curwen's edit.) vol. 3, p. 1986, tit. x.
ch. 1, §§ 310-313.
[The Massachusetts Statute of 1856, ch.
■ 188 (repealed by act of 1857, ch. 305),
provided " where the original party to the
contract or cause of action was dead,"
that the other party could not testify. In
a replevin suit (Fischer v. Morse, Norfolk
S. J. C. Oct. T. 1857, 20 Law Reporter,
414), for goods, tlie defendant in his answer
claimed the replevied goods as assignee
in insolvency of a third person now de-
ceased, Tlie plaintiff contended, that the
insolvent (the third person) obtained the
goods of him by fraud, and therefore
acquired no title, and oifered himself as
witness ; and it was lield, that he was in-
competent,— the original party to the
cause of action being dead.
[Tlie Connecticut Statute provides that
no person shall be disqualified as a wit-
ness by reason of interest in the event of
the suit whether as a party or otherwise.
Under this statute the wife is held to be a
competent witness for the husband. Mer-
riam v. Hartford and N. II. R. R. Co., 20
Conn. 354, 363. For a similar decision in
Vermont, see Rutland and B. R, R. Co.
V. Sinison's Adm'r, 19 Law Rep. 629.
See to tills point under the Massachusetts
Statute of 1856, which provided that par-
ties in all civil actions may testify, &c.,
without the additional clause as to hus-
band and wife that is in the Act of 1857 ;
(see supra,) Barber v. Goddard, 20 Law
Rep. 408, and Snell v. Westport, lb. 414,
CBAP. II.J COMPETENCY OP WITNESSES. 385
the evidence totally fails ; ^ " and it is not to be presumed that
a man, who complains without cause, or defends without justice,
should have honesty enough to confess it." ^
§ 330. The rule of the common law goes still further in regard
to parties to the record in not compelling them, in trials by jury, to
give evidence for the opposite party, against themselves, either in
civil or in criminal cases. Whatever may be said by theorists,
as to the policy of the maxim. Nemo tenetur seipsum prodere, no
inconvenience has been felt in its practical application. On the
contrary, after centuries of experience, it is still applauded by
judges, as " a rule founded in good sense and sound policy ; " ^
and it certainly preserves the party from temptation to perjury.
This rule extends to all the actual and real parties to the suit,
whether they are named on the record as such or not.*
§ 331. Whether corporators are parties within the meaning of
this rule is a point not perfectly clear. Corporations, it is to be
observed, are classed into public or municipal, and private corpo-
rations. The former are composed of all the inhabitants of any
of the local or territorial portions into which the country is divided
in its political organization. Such are counties, towns, boroughs,
local parishes, and the like. In these cases, the attribute of indi-
viduality is conferred on the entire mass of inhabitants, and again
is modified, or taken away, at the mere will of the legislature,
according to its own views of public convenience, and without any
necessity for the consent of the inhabitants, though not ordinarily
against it. They are termed quasi corporations ; and are depend-
ent on the public will, the inhabitants not, in general, deriving
any private and personal rights under the act of incorporation ;
which decide that the wife is a competent upon what they give in evidence ; and
witness if a party to the suit, but not therefore the law removes them from tes-
otherwise.] timony, to prevent their sliding into per-
1 " For where a man, who is interested jury ; and it can be no injury to truth to
in the matter in question, would also remove those from the jury, whose tes-
prove it, it rather is a ground for distrust, timony may hurt themselves, and can
than any just cause of belief ; for men are never induce any rational belief." 1 Gilb.
generally so short-sighted, as to look to Evid. by Lofit, p. 223.
their own private benefit, which is near ^ 1 Gilb. Evid. by Loffi, p. 243.
them, rather than to the good of the ' Worrall v. Jones, 7 Bing. 395, per
world, ' which, though on the sum of Tindal, C. J. ; Kex v, Woburn, 10 East,
things really best for the individual,' is 403, per Lord EUenborough, C. J. ; Corn-
more remote ; therefore, from the nature monwealth v. Marsh, 10 Pick. 57.
of human passions and actions, there is * Hex v. Woburn, 10 East, 395 ; Mau-
more reason to distrust such a biased tes- ran v. Lamb, 7 Cowen, 174 ; Appleton ».
timony than to believe it. It is also easy Boyd, 7 Mass. 131 ; Eenn v. Granger, 8
for persons, who are prejudiced and pre- Campb. 177.
possessed, to put false and unequal glosses
VOL T 33
S86 LAW OF EVIDENCE. [PAI.T III.
its office and object being not to grant private rights, but to regu-
late the manner of performing public duties.^ These corporations
sue and are sued by the name of "the Inhabitants of"^ such a
place ; each inhabitant is directly liable in his person to arrest,,
and in his goods to seizure and sale, on the execution, which may
issue against the collective body, by that name ; and of course
each one is a party to the suit ; and his admissions, it seems, are
receivable in evidence, though their value, as we have seen, may
be exceedingly light.^ Being parties, it would seem naturally to
follow, that these inhabitants were neither admissible as witnesses
for themselves, nor compellable to testify against themselves ; but
considering the public nature of the suits, in which they are par-
ties, and of the interest generally involved in them, the minute-
ness of the private and personal interest concerned, its contingent
character, and the almost certain failure of justice, if the rule
were carried out to such extent in its application, these inhabitants
are admitted as competent witnesses in all cases, in which the
rights and liabilities of the corporation only are in controversy.
But where the inhabitants are individually and personally inter-
ested, it is otherwise.^ Whether this exception to the general
'■ Angell & Ames on Corp. 16, 17 ; Ad. & El. 788. See also Prewitt o. Til-
Runiford v. Wood, 13 Mass. 192. The ley, 1 C. & P. 140; Ang. & Ames on
observations in the text are applied to Corp. 390-394 ; Connecticut v Bradish, 14
American corporations of a political char- Mass. 296 ; Gould v. James, 6 Cowen,
acter. Wliether a municipal corporation 369 ; Jacobson v. Fountain, 2 Johns. 170 ;
can in every case be dissolved by an act Weller v. The Governors of the Found-
of the legislature, and to what extent such ling Hospital, Peake's Cas. 153; infra;
act of dissolution may constitutionally § 405. In the English courts, a distinc-
operate, are questions, which it is not tion is taken between rated and ratable in-
necessary here to discuss. See Willcock habitants, the former being held inadrais-
on Municipal Corporations, pt. 1, § 852; sible as witnesses, and the latter being
Terrett v. Taylor, 9 Cranch, 43, 51 ; held competent ; and tliis distinction has
Dartmouth College V.Woodward, 4 Wheat, been recognized in some of our own
518, 629, 663 ; [WaiTcn v. Charlestown, 2 courts ; though npon the grounds stated
Gray, 84, 100.] in the text, it does not seem applicable to
^ Supra, § 175, and note. our institutions, and is now generally dis-
8 Swift's Evid. 57; Rex v. Mayor of regarded. See Commonwealth v. Baird,
London, 2 Lev. 231. Thus, an inhabitant 4 S. & R. 141 ; Falls v. Belknap, 1 Johns,
is not competent to prove a way by pre- 486, 491 ; Corwein v. Hames, 11 Johns,
scription for all the inhabitants; Odiorne 76; Bloodgood v. Jamaica, 12 Johns. 285;
V. Wade, 8 Pick. 518 ; nor a right, in all supra, § 175, note, and the cases above
the inhabitants to take shell-flsh; Lufkin cited. But in England, rated inhabitants
V. Haskell, 3 Pick. 366 ; for in such cases, are now by statutes made competent wit-
by the common law, the record would be nesses on indictments for non-repair of
evidence of the custom, in favor of the bridges ; in actions against the hundred,
witness. [But see Look v. Bradley, 13 under the statute of Winton ; in actions
Met. 369, 372.] This ground of objection, for riotous assemblies ; in actions against
however, is now removed in England, by churchwardens for misapplication . of
Stat. 3 & 4 W. IV. c. 42. The same prin- funds ; in summary convictions under 7
ciple is applied to any private, joint, or and 8 Geo. IV. c. 29, 30 ; on the trial of
common interest. Parker v. Mitchell, 11 indictments under the general highway
CHiP. II.] COMPETENCY OF WITNESSES. 387
rule was solely created by the statutes, which have been passed
on this subject, or previously existed at common law, of which the
statutes are declaratory, is not perfectly agreed.^ In either case,
the general reason and necessity, on which the exception is
founded, seem to require, that where inhabitants are admissible
as witnesses for the corporation, they should also be compellable
to testify against it ; but the point is still a vexed question.^
§ 332. Private corporations, in regard to our present inquiry,
may bo divided into two classes, namely, pecuniary or moneyed in-
stitutions, such as banks, insurance, and manufacturing companies,
and the like, and institutions, or societies for religious and chari-
table purposes. In the former, membership is obtained by the
purchase of stock or shares, without the act or assent of the cor-
poration, except prospectively and generally, as provided in its
charter, and by-laws ; and the interest thus acquired is private,
pecuniary, and vested, like ownership of any other property. In
the latter, membership is conferred by special election ; but the
member has no private interest in the funds, the whole property
being a trust for the benefit of others. But all these arc equally
corporations proper ; and it is the corporation, and not the indi
vidual member, that is party to the record in all suits by or against
it.^ Hence it follows, that the declarations of the members are
not admissible in evidence in such actions as the declarations of
act and the general turnpike act ; and in Stat. 1845, ch. 34, art. 1, § 25. In NtM
matters relating to rates and cesses. Pliil. Jet'sei/, they are admissible in suits for
& Am. on Evid. 133-138, 395; 1 Phil, moneys to which tlie county or town is
Evid. 138-144. In the province of New entitled. Rev. Stat. 1846, tit. 34, cli. 9,
Bninstvick, rated inhabitants are now made § 5. See Stewart d. Saybrook, Wright,
competent witnesses in all cases wliere 374 ; Barada v. Caundelet, 8 Miss. 644.
the town or parish may in any manner be ^ Supra, § 175, and the cases cited in
affected, or where it may be interested in note. See also Pliil. & Am. on Evid.
a pecuniary penalty, or where its ofScers, p. 395, note (2) ; 1 Phil. Evid. 375 ; City
acting in its behalf, are parties. Stat. 9 Council v. King, 4 McCord, 487 ; Mars-
Vici. cap. 4, March 7, 1846. In several den v. Stansfield, 7 B. & C. 815; Eex v.
of the United States, also, the inhabitants liirdford, 2 East, 559.
of counties and otlier municipal, territo- ^ In Hex v. Woburn, 10 East, 395, and
rial, or i/nasi corporations, are expressly Rex v. Hardwicke, 11 East, 578, 584, 586,
declared by statutes, to be competent wit- 589, it was said that they were not com-
I esses, in .ill suits in wliich tlie corpora- pellable. See accordingly, Plattekill u.
I'.nn is a party. See itaine. Rev Stat. New Paltz, 15 Johns. 305.
1840, ch. 115, §75; Massachusetts, Rev. ^ Merchants' Bank t. Cook, 4 Pick,
litat. ch. 94, § 54; Vermont, Rev. Stat. 405. It has been held in Maine, thai, a
1839, ch. 31, § 18; New York, Rev. Stat, corporator, or shareliolder in a moneyed
vol. 1, pp. 408, 439 (3d edit. ); Pennsi/I,- institution, is substantially a party, and
vania, Dunl. Dig. pp. 215, 913, 1019, therefore is» not compellable to testify
1165; Mivhiqan, Rev. Stat. 1846, ch. 102, where the corporation is party to tl)e rec-
§ 81 ; Wisconsin, Rev. Stat. 1849, ch. 10, ord. Bank of Oldtown v. Houlton, 8
§ 21; Id. ch. 98, § 49; Virijinia, Rev. Sliepl. 501. Slieplev, J., dissenting.
Stat. 1849, ch. 176, § 17 : Missouri. Rev
388
LAW OF EVIDENCE.
[part hi.
parties,^ though where a member or an officer is an agent of tho
corporation, liis declarations may be admissible, as part of the res
gestce?'
§ 333. But the members or stockholders, in institutions created
for private emolument, though not parties to the record, are not
therefore admissible as witnesses ; for, in matters in which the cor-
poration is concerned, they of course have a direct, certain, and
vested interest which necessarily excludes them.-^ Yet the memr
bers of charitable and religious societies, having no personal and
private interest in the property holden by the corporation, are
competent witnesses in any suit in which the corporation is a party.
On this ground, a mere trustee of a savings bank, not being
a stockholder or a depositor,* and a trustee of a society for the
instruction of seamen,^ and trustees, of many other eleemosynary
institutions, have been held admissible witnesses in such suits.
But where a member of a private corporation is inadmissible as
a witness generally, he may still be called upon to produce the
1 City Bank v. Bateman, 7 Har. &
Johns. 104, 109 ; Hartford Bank v. Hart,
3 Day, 491, 495; MagUl v. Kauffinan, 4
S. & R. 317 ; Stewart v. Huntingdon
Bank, 11 S. & R. 267 ; Atlantic Ins. Co.
V. Conard, 4 Wash. 663, 677; Fairfield
Co. Turnpike Comp. v. Thorp, 13 Conn.
173.
2 Supra, §§ 108, 113, 114.
' This rule extends to the members of
all corporations, having a common fund
distributable among the members, and in
which they therefore have a private in-
terest ; the principle of exclusion apply-
ing to all cases where that private interest
would be affected. Doe d. Mayor and
Burgesses of Stafford v. Tooth, 3 Younge
& Jcr. 19 ; City Council v. King, 4 Mc-
Cord, 487, 488; Davies v. Morgan, 1
Tyrwh. 457. Where a corporation would
examine one of its members as a witness,
he may be rendered competent, either by
a sale of his stock or interest, where
membership is gained or lost in that way ;
or, by being disfranchised ; which is done
by an information in the nature of a quo
warranto against the member, who con-
fesses the information, on which the plain-
tiff obtains judgment to disfranchise him.
Mayor of Colchester v. , 1 P. Wms.
595. Whore the action is against the cor-
poration for a debt, and the stockholders
are by statute made liable for such debt,
and their property is liable to seizure
upjn the execution issued against the
corporation, a member, once liable, re-
mains so, notwithstanding his alienation
of stock, or disfranchisement, and there-
fore is not a competent witness for the
corporation in such action. Hovey t>.
The Mill-Dara Foundry, 21 Pick. 453.
But where his liability to the execution
issued against the corporation is not cer-
tain, but depends on a special order to be
granted by the court, in its discretion, he
is a competent witness. Needham v.
Law, 12 M. & W. 560. The clerk of a
corporation is a competent witness to
identify its books and verify its records,
although he be a member of the corpora-
tion, and interested in the suit. Wiggin
V. Lowell, 8 Met. 301. In several of the
United States, however, the members of
private corporations are made competent
witnesses by express statutes; and in
others they are rendered so by force of
general statutes, removing the objection
of interest from all witnesses. Supra,
§331.
* Middletown Savings Bank v. Bates,
11 Conn. 519. .
"> Miller v. Mariner's Church, 7 Greenl.
51. See also Anderson v. Brock, 8
Greenl. 243 ; Wells v. Lane, 8 Johns. 462 ;
Gilpin V. Vincent, 9 Johns. 219 ; Nayson
V. Thatcher, 7 Mass. 398; Cornwell v.
Isham, 1 Day, 35; Richardson v. Free-
man, 6 Greenl. 57; Weller v. FoundUng
Hospital, Peake's Cas. 153; [Davies v
Morris, 17 Penn. St. R. 205.]
CHAP. II.] COMPETENCY OF WITNESSES. 389
coriDorate documents, in an action against the corporation ; for he
is a mere depositary, and tlie party objecting to his competency is
still entitled to inquire of him concerning the custody of the docu-
ments.^ And if a trustee, or other member of an eleemosynary
corporation, is liable to costs, this is an interest which renders
him incompetent, even though he may have an ultimate remedy
over.^
§ 334. The rule, by which parties are excluded from being
witnesses for themselves, applies to the case of hushand and wife;
neither of them being admissible as a witness in a cause, civil or
criminal, in which the other is a party .^ This exclusion is founded
partly on the identity of tlieir legal right's and interests, and partly
on principles of public policy, wliicli lie at the basis of civil society.
For it is essential to the happiness of social life, that the confi-
dence subsisting between husband and wife should be sacredly
protected and cherished in its most unlimited extent ; and to break
down or impair the great principles which protect the sanctities
of that relation would bo to destroy the best solace of human
existence.*
§ 335. The principle of this rule requires its application to all
cases, in which the interests of the. other party are involved. And
therefore, the wife is not a competent witness against any co-
defendant, tried with her husband, if the testimony concern the
husband, though it be not directly given against liim.^ Nor is
' Rex V. Inhabitants of Netliertliongf, for, but not against each other, In crimi-
2 M. & S. 237 ; Wilcoek on Municipal nal prosecutions. Code of 1851, art. 2391.
Corp. 309; Wiggin v. Lowell, 8 Met. * Stein u. Bowman, 13 Peters, 223, per
301. McLean, J.; supra, § 254; Co. Lit. 6,
2 Hex V. St. Mary Magdalen, Ber- b. ; Davis v. Dinwoody, 4 T. II. 678 ;
mondsey, 3 East, 7. Barker v. Dixie, Cas. temp. Hardw. 264 ;
" An exception or qualification of tliis Bentley v. Cooke, 3 Doug. 422, per Ld.
rule is admitted, in cases where the lius- Mansfield. The rule is the same in equity,
band's account-books liave been kept by Vowles v. Young, 13 Ves. 144. So is
the wife, and are offered in evidence in the law of Scotland. Alison's Practice,
an action brouglit by iiim for goods sold, p. 461. See also 2 Kent, Comm. 179, 180 ;
&c. Here the wife is lield a competent Commonwealth v. Marsh, 10 Pick. 57 ;
witness, to testify that slie made the en- Robbins v. King, 2 Leigh, Com. R. 142,
tries by his direction and in his presence ; 144; Snyder v. Snyder, 6 Binn. 4S8;
after wliicli his own suppletory oath may Corse v. P.itterson, 6 Ha~. & Johns. 15i! ;
bo received, as to the times wiien the Barbat v. Allen, 7 Exchr. 609.
charges were made, and that they are ^ Hale, P. C. 301 ; Dalt. Just. c. Ill ;
just and true. Littlefield v. Rice, 10 Met. Rex v. Hood, 1 Mood. Cr. Cas. 281 ; Rex
287. And see Stanton a. AVilson, 3 Day, v. Smith, Id. 289. [The husband is not a
37 ; Smith v. Sanford, 12 Pick. 139. In competent witness for or against the trus-
the principal case, tlie cori-ectness of the tee of the wife's separate estate, in a suit
contrary decision in Carr v. Cornell, 4 between the trustee and a third person in
Verm. 116, was denied. In Iowa, 1ms- regard to the trust estate. Hasbrouck v.
band and wife are competent witnesses Vandervort, 5 Selden, 153.]
33*
890 LAW OF EVIDENCE. [PART III.
she a -witness for a co-defendant, if her testimony, as in the case
of a conspiracy,! would tend directly to her husband's acquittal ;
nor where, as in the case of an assault,^ the interests of all the
defendants are inseparable ; nor in any suit in which the rights
of her husband, though not a party, would be concluded by any
verdict therein ; nor may she, in a suit between others, testify to
any matter for which, if true, her husband may be indicted.^ Yet
where the groimds of defence are several and distfaict, and in no
manner dependent on each other, no reason is perceived why the
wife of one defendant should not be admitted as a witness for
another.*
§ 336. It makes no difference at what time the relation of husband
and wife commenced; the principle of exclusion being applied in
its full extent, wherever the interests of either of them are directly
concerned. Thus, where the defendant married one of the plain-
tiff's witnesses, after she was actually summoned to testify in the
suit, she was held incompetent to give evidence.^ Nor is there
any difference in principle between the admissibility of the hus-
band and that of the wife, where the other is a party. ^ And when,
in any case, they are admissible against each other, they are also
admissible for each other.'' ^
§ "37. Neither is it material, that this relation no longer exists.
The great object of the rule is to secure domestic happiness, by
1 Rex V. Locker, 5 Esp. 107, per Ld. by showing that th.at witness was niis-
Ellenboroughj.who said it was a clear rule taken in a material fact. Eex v. Smith,
of the law of England. The State v. Bur- 1 Mood. Cr. Cas. 289. If the conviction
lingham, 3 Shepl. 104; [Commonwealth of a prisoner, apainst whom she is called,
V. Robinson, 1 Gray, 555, 559.] But will strengthen the hope of pardon for her
where several are jointly indicted for an husband, who is already convicted, this
offence, which might have been commit- goes only to her credibility. Re.x y. Rudd,
ted either by one or more, and they are 1 Leach, 135, 151. Where one of two
tried separately, it has been held that the persons, separately indicted for the same
wife of one is a competent witness for the larceny, has been convicted, his wife is a
others. The Commonwealth v. Manson, competent witness against the other. Re-
2 Ashm. 31 ; The State v. Worthing, 1 gina v. Williams, 8 C. & P. 284.
Redington, 62 ; infra, § 363, note. But * Pedley v. Wellesley, 3 C. & V. 658.
see Pullen r. The People, 1 Doug. Michi- This case forms an exception to the gen-
gan, !l. 4''. eral rule, that neither a witnens nor a
- iiex ('. Frederic, 2 Stra. 1095. [See partj' can, by his own act, deprive the
State c. Worthing, 31 Maine, 62; infra, other party of a right to the testimony of
§ 363, note.] the witness. See supra, § 167 ; infra,
8 Den d. Stewart v. Johnson, 3 Harri- § 418.
son, 88. " Rex v. Serjeant, 1 Ry. & M. 352.
•* Phil. & Am. on Evid. 160, n. (2) ; 1 In tliis case, the husband was, on this
Phil. Evid. 75, n. (1). But wliere the ground, held incompetent as a witness
wife of I me prisoner was called to prove against the wife, upon an indictment
an aliU in favor of another jointly indict- against her and others for conspiracy, in
ed, she was lield incompetent, on the procuring him to marry her.
groimd that her evidence went to weaken ' Rex v, Serjeant, 1 Ry. & M. 352.
that of the witness against her husband.
CHAP. II.] COMPETENCY OP WITNESSES. 391
placing the protecting seal of the law upon all confidential com-
munications between husband and wife ; and whatever has come
to the knowledge of either by means of the hallowed confidence
which that relation inspires, cannot be afterwards divulged in
testimony, even though the other party be no longer living.^ And
even where a wife, who had been divorced by act of parliament,
and had married another person, was offered as a witness by the
plaintiff, to prove a contract against her former husband, Lord
Alvanley held her clearly incompetent ; adding, with his charac-
teristic energy, — " it never shall be endured, that the confidence,
which the law has created while the parties remained in the most
intimate of all relations, shall be broken, whenever, by the mis-
conduct of one party, the relation has been dissolved." ^ ,
§ 338. This rule, in its spirit and extent, is analogous to that
whicli excludes confidential communications made by a client to
his attorney, and which has been already considered.^ Accord-
ingly, the wife, after the death of the husband, has been held
competent to prove facts coming to her knowledge from other
sources, and not by means of her situation as a wife, notwithstand-
ing they related to the transactions of her husband.*
339. This rule of protection is exfended only to lawful marriages,
or at least to such as are innocent in the eye of the law. If the
cohabitation is clearly of an immoral character, as, for example,
in the case of a kept mistress, the parties are competent witnesses
for and against each other.^ On the other hand, upon a trial for
polygamy, the first mai'riage being proved and not controverted, the
woman, with whom the second marriage was had, is a competent
1 Stein V. Bowman, 13 Peters, 209. from each other, under articles. See fur-
2 Monroe v. Twistleton, Pealie's Evid. ther, supra, § 254 ; Tlie State v. Jolly, 3
App. Ixxxvii. [xci,] expounded and con- Dev. & Bat. 110; Barnes o. Camack, 1
firmed in Aveson v. Ld. Kinnaird, 6 East, Barb. 392. [In an action on the case
192, 193, per Ld. Ellenborough, and in brought by a husband for criminal con-
Doker v. Hasler, Ey. & M. 198, per Best, versation with his wife, the latter, after a
C. J. ; Stein v. Bowman, 13 Peters, 223. divorce from the bonds of matrimony, is
In the case of Beveridge v. Minter, 1 C. a competent witness in favor of tlie hus-
& P. 364, in which the widow of a de- band, to prove the charge in the coclara-
ceased promisor was admitted by Abbott, tion. Dickerman v. Graves, 6 Cusli. 308 ;
C. J., as a witness tor the plaintiff to infra, § 344, note.]
prove tlie promise, in an action against ' Supra, §§ 240, 243, 244, 338.
her husband's executors, the principle of * Coffin v. Jones, 13 Pick. 445; "Wil-
the rule does not seem to have received liams v. Baldwin, 7 Verm. 506 ; Cornell
any consideration ; and the point was not v. Vanartsdalen, 4 Barr, 364 ; Wells v.
saved, the verdict being for the defen- Tucker, 3 Binn. 366. And see Saunders
dants. See also Terry v. Belcher, 1 Bai- v. Hendrix, 5 Ala. 224 ; McGuire v. Mat
ley's R. 568, that the rule excludes the loney, 1 B. Monr. 224.
testimony of a husband or wife separated ^ Batthews v. Galindo, 4 Bing. 610
892 LAW OP EVIDENCE. [PAET HI,
witness ; for the second marriage is void.^ But if the proof of the
first marriage were doubtful, and the fact were controverted, it is
conceived that she would not be admitted.^ It seems, however,
that a reputed or supposed wife may be examined on the voir
dire, to facts showing the invalidity of the marriage.^ Whether
a woman is admissible in favor of a man, with whom she has
cohabited for a long time as his wife, whom he has constantly
represented and acknowledged as such, and by whom he has had
children, has been declared to be at least doubtful.* Lord Kenyon
rejected such a witness, when offered by the prisoner, in a capital
case tried before him ; ^ and in a later case, in which his decisions
were mentioned as entitled to be held in respect and reverence,
an arbitrator rejected a witness similarly situated ; and the court,
abstaining from any opinion as to her competency, confirmed the
award, on the ground that the law and fact had both been sub-
mitted to the arbitrator.^ It would doubtless be incompetent for
another person to offer the testimony of an acknowledged wife, on
the ground that the parties were never legally married, if that
relation were always recognized and believed to be lawful by the
parties. But where the parties had lived together as man and
wife, believing themselves lawfully married ; but had separated
on discovering that a prior husband, supposed to be dead, was
still living ; the woman was held a competent witness against the
second husband, even as to facts communicated to her by him
during their cohabitation.'''
1 Bull. N. P. 287. Tr. 24 Geo. ni., B. R., cited 2 T. E. 266,
2 If the fact of tlie second marriage is 269 ; 3 Doug. 422, s. c.
in controversy, the same principle, it ^ Anon, cited by Richards, B., in 1
seems, will exclude the second wife also. Price, 83.
See 2 Stark. Evid. 400 ; Grigg's case, T. <> Campbell v. Twemlow, 1 Price, 81,
Eaym. 1. Bui; it seems, that the wife, 88, 90, 91. Richards, B., observed, that
though inadmissible as a witness, may be • he should certainly have done as the ar-
jprorfHcerf in court for the purpose of being bitrator did. To admit the witness in
identified, althougli the proof tlms fur- such a case would both encourage immo-
nished may affix a criminal charge upon rality, and enable the parties at their
the husband; as, for example, to show pleasure to perpetrate fraud, by admitting
that she was the person to whom he was or denying the marriage, as may suit
first married; or, who passed a note, their convenience. Hence, cohabitation
which lie is charged with having stolen, and acknowledgment, as husband and
AMson's I'r. p. 463. wife, are held conclusive against the par-
3 I-'eat's case, 2 Lew. Cr. Cas. 288; ties, in all cases, except where the fact or
Wakefield's case, Id. 279. the incidents of marriage, such as legiti-
■i 1 Piice, 88, 89, per Thompson, C. B. macy and inheritance, are directly in cou-
If a woman sue as a feme sole, her hus- troversy. See also Divoll v: Leadbetter,
band i.s not admissible as a witness for the 4 Pick. 220.
defendant, to prove her a feme covert, ' Wells v. Fletcher, 5 C. & P. 12-
thereby to nonsuit her. BenUey v. Cooke, WeUs v. Ksher, 1 M. & R. 99, and note. '
CHAP. II.] COMPETENCT OP WITNESSES. 393
§ 340. Whether the rule may he relaxed, so as to admit the
wife to testily against the husband, hy his consent, the authorities
are not agreed. Lord Hardwicke was of opinion that she was not
admissible, even with the husband's consent;^ and this opinion
has been followed in this country ; ^ apparently upon the ground,
that the interest of the husband in preserving the confidence
reposed in her is not the sole foundation of the rule, the public
having also an interest in the preservation of domestic peace,
which might be disturbed by her testimony, notwithstanding his
consent. The very great temptation to perjury, in such case, is
not to be overlooked.^ But Lord Chief Justice Best, in a case
before him,* said he would receive the evidence of the wife, if her
husband consented ; apparently regarding only the interest of the
husband as the ground of her exclusion, as he cited a case, where
Lord Mansfield had once permitted a plaintiff to be examined with
his own consent.
§ 341. Where the husband or wife is not a party to the record,
but yet has an interest directly involved in the suit, and is therefore
incompetent to testify, the other also is incompetent. Thus, the
wife of a bankrupt cannot be called to prove the fact of his bank-
ruptcy.^ And the husband cannot be a witness for or against his
wife, in a question touching her separate estate, even though there
are other parties, in respect of whom he would be competent.''
So, also, Avhere the one party, though a competent witness in the
cause, is not bound to answer a particular question, because
the answer would directly and certainly expose him or her to
a criminal prosecution and conviction, the other, it seems, is not
obliged to answer the same question.'' The declarations of husband
1 Barker v. Dixie, Cas. temp. Hardw. further Hatfield v. Thorp, 5 B. & Aid.
264; Sedgwiek v. Walkins, 1 Ves. 49; 580; Cornish v. Pugli, 8 J). & 11. 05; 12
Grigg's case, T. Raym. 1. Vin. Abr. Kvidence, B. If an attesting
2 Randall's case, 5 City Hall Eeo. 141, witness to a will afterwards marries a tie-
153, 154. See also Colberu's case, 1 male legatee, the legacy not being given
Wheeler's Crim. Cas. 479. to her separate use, l.e is ina(lniit,sible to
^ Davis V. Dinwoody, 4 T. R. 679, per prove the will. Mackenzie o. Yen, 2 Curt.
Lord Kenyon. 509. The wife of an executor is also in-
■* Pedley v. Wellesley, 3 C. & P. 558. competent. Young v. Richard, Id. 371.
^ Ex /inrte .James, 1 P. Wms. 010, 611. But where the statute declares the legacy
But she is made competent by statute, to void which is given to an attesting wit-
make discovery of his estate. 6 Geo. IV., ness of a will, it lias been l;elil, tliat if the
c. 16, § 37. husband is a legatee and the wife is a wit-
" 1 Burr. 424, per Lord Mansfield ; Da- ness, tlie legacy is void, and the wile is
vis !'. Dinwoody, 4 T. R. 078 ; Snyder;;, admissible. Winslow v. Kimball^ 12
Snyder, 6 Binn. 483 ; Langley v. Fisher, Shepl. 493.
5 Beav. 443. But where tlie interest is ' See Phil. & Am. on Evid. 108; Den
contingent and uncertain, he is admissible, v. Johnson, 3 llarr. 87.
Richardson ;;. Learned, 10 Pick. 261. See
394
LAW OP EVIDENCE.
[PAEX in.
and wife are subject to the same rules of exclusion which go-vcrn
their testimony as witnesses.-^
§ 342. But though the husband and wife are not admissible as
witnesses against each other, where either is directly interested in
the event of the proceeding, whether civil or criminal ; yet in col-
lateral proceedings, not immediately affecting their mutual interests,
their evidence is receivable, notwithstanding it may tend to crimi-
nate, or may contradict the other, or may subject tlie other to
a legal demand.^ Thus, where, in a question upon a female
pauper's settlement, a man testified that he was married to the
pauper upon a certain day, and another woman, being called to
prove her own marriage witli the same man on a previous day,
was objected to as incompetent, she was held clearly admissible
for that purpose ; for though, if the testimony of both was true,
the husband was chargeable with the crime of bigamy, yet neither
the evidence, nor the record in the present case, could be received
in evidence against him upon tliat charge, it being res inter alios
acta, and neither the husband nor the wife having any iiiterest in
the decision.^ So, where the action was by the indorsee of a biU
I Alban v. Pritcliett, 6 T. R. 680 ;
Denn v. White, 7 T. R. 11-2 ;. Kelly «.
Small, 2 Esp. 716 ; Bull. N. P. 28; Wins-
more V. Greenbank, Willes, 577. Wliether,
where the luisbaud anil wife are jointly
indicted for a joint offence, or are other-
wise joint parties, tlieir declarations are
mutually receivable against each other, is
still questioned ; the general rule, as to
persons jointly concerned, being in favor
of their admissibility, and the policy of
the law of husband and wife being against
it. See Commonwealth v. Bobbins, 3
Pick. 63; Commonwealth v. Briggs, 5
Pick. 429; Evans v. Smith, 5 Monroe,
363, 364; Turner v. Coe, 5 Conn. 93.
The declarations of the wife, however,
are admissible for or against the husband,
wherever they constitute part of the res
gestce which are material to be proved ; as,
whore he obtained insurance on her life as
a person in health, she being in fact dis-
eased. Averson v. Lord Kinnaird, G East,
188 ; or, in an action by him against an-
other for beating her, Thompson v. Free-
mnn. Skin. 4D2 ; or, for enticing her away,
Gilchrist v. Bale, 8 Watts, 35-5 ; or, in an
action against him for her board, he hav-
ing turned her out of doors, Walton v.
Green, 1 C. & P. 62L So, where she
acted as his agent, supra, § 334, n. ;
Thomas v. Hargrave, Wright, 595. But
her declarations made after marriage, in
respect to a debt previously due by her,
are not admissible for the creditor, in an
action against the husband and wife, for
the recovery of that debt. Brown v. La-
seUe, 6 Blackf 147.
2 Fitch V. Hill, 11 Mass. 286 ; Baring
V. Eeeder, 1 Hen. & JMun. 154, 168, per
Roane, J. In Griffin v. Brown, 2 I'ick.
308, speaking of the cases cited to this
point, Parker, C. J., said: "They estab-
lish this principle, that the wife may be a
witness to excuse a party sued for a sup-
posed liability, although the effect of her
testimony is to charge her husband upon
the same debt, in an action afterwards to
be brought against him. And the reason
is, that the verdict in the action, in which
slie testifies, cannot be used in the action
against her husband ; so that, although
her testimony goes to show that he is
chargeable, yet ho cannot bo prejudiced
by it. And it may be observed, that, in
these very cases, the husband himself
would be a competent witness, if he were
willing to testify, for his evidence would
be a confession against himself." Wil-
liams V. Johnson, 1 Stra. 504 ; Vowles v.
Young, 13 Ves. 144; 2 Stark. Evid. 401.
See also Mr. Hargrave's note [291 to Co.
Lit. 6 b.
8 Rex V. Bath wick, 2 B. & Ad. 639,
647; Rex v. All Saints, 6 M. & S. 194,
S. P. In this case, the previous decision
CEtAP. II.] COMPETENCY OP WITNESSES. 395
of exchange, against the acceptor, and the defence was, that it had
been fraudulently altered by the drawer, after the acceptance ;
the wife of the drawer was held a competent witness to prove the
alteration.^
§ 343. To this general i-ule, excluding the husband and wife as
witnesses, there are some exceptions; which are allowed from the
necessity of the case, partly for the protection of the wife in her
life and liberty, and partly for the sake of public justice. But the
necessity wliich calls for this exception for the wife's security is
described to mean, " not a general necessity, as where no other
witness can bo had, but a particular necessity, as where, for in-
stance, the wife would otherwise bo exposed, without remedy, to
personal injury." ^ Thus, a woman is a competent witness against
a man indicted for forcible abduction and marriage, if the force
were continuing upon her until the marriage ; of which fact she
is also a competent witness ; and this, by the weight of the authori-
ties, notwithstanding her siibsequent assent and voluntary cohabi-
tation ; for otherwise, the offender would take advantage of his
wrong.3 So, she is a competent witness against him on an indict-
ment for a rape, committed on h6r own person ; * or, for an assault,
and battery upon lier ; ^ or, for maliciously shooting her.^ She
may also exhibit articles of the peace against him ; in which case
her affidavit shall not be allowed to be controlled and overthrown
by his own.^ Indeed, Mr. East considered it to be settled, that
in Eex V. Cliviger, 2 T. R. 263, to the ^ x East's P. C. 454 ; Brown's case, 1
effect, tliat a wite was in every case in- Ventr. 243; 1 Russ. on Crimes, 572;
competent to give evidence, even tending Walcefield's case, 2 Lewin, Cr. Cas. 1,
to criminate Iter liusbaml, was considerecl 20, 279. See also Kegina v. Yore, 1 Jebb
and restricted; Lord Ellenborougli re- & Symes, R. 563, 572 ; Perry's case, cited
marking, that tlie rule was tliere laid in McNally's ICvid. 181 : Rex u. Serjeant,
down "soniewliat too largely." In Rex Ry. & M. 352; 1 Hawk. P. C. c. 41, § 13;
V. Bathwick, it w.as held to be " undoubt- 2 Russ. on Crimes, 605, 606. This case
edly true in the case of a direct cliarge ftiay be considered anomalous ; for she
and proceeding against him for any of- can hardly be said to be his wife, the
fence," but was denied in its application marriage contract having been obtained
to collateral matters. But on tlie trial of by force. 1 Bl. Comra. 443; Mci^ally's
a man for tlie crime of adultery, the hus- Evid. 179, 180; 3 Chitty's Crini. Law,
b.and of tlie woman with whom the crime 817, note (y) ; Roscoe's Crim. ICvid. 115.
was alleged to have been committed, has * Ld. Audley's case, 3 Howell's St. Tr.
been held not to be admissible as a witness 402, 413; Hutton, 115, 110; Bull. N. P.
for the prosecution, .as his testimony would 287. '
go dh-ectly to charge the cirime upon his * Lady Lawley's case. Bull. N. P. 287;
wife. The State v. Welch, 13 Sliepl. 30. Rex v. Azire, 1 Stra. 033; Soulc's case, 5
1 Hemnan y. Dickenson, 5 Bing. 183. Greenl. 407 ; The State v. Davis, 3 Bre-
^ Bentley v. Cooke, 3 Doug. 422, per vard, 3.
Ld. Mansfield. In Sedgwick v. ^Yalkins, " Whitehouse's case, cited 2 Russ. on
1 Ves. 49, Ld. Tburlow spoke of this ne- Crimes, 606.
cessity as extending only to security of ' Rex v. Doherty, 13 East, 171 ; Lord
the peace, and not to an indictment Vane's case, Id, note (a) ; 2 Stra. 1202;
396 LAW OF EVIDENCE. [PAKT IH.
" ill all cases of personal injuries committed by the husband or
wife against each other, the injured party is an admissible witness
against the other." ^ But Mr. Justice Holroyd thought that the
wife could only be admitted to prove facts, which could not be
proved by any other witness.^
§ 344. The wife has also, on the same ground of necessity, been
sometimes admitted as a witness to testify to secret facts, which
no one but herself could know. Thus upon an appeal against an
order of filiation, in the case of a married woman, she was held
a competent witness to prove her criminal connection with the
defendant, though her husband was interested in the event ; ^ but
for reasons of public decency and morality, she cannot be allowed
to say, after marriage, that she had no connection with her hus-
band, and that therefore her oifspring is spurious.*
§ 345. In cases of Mffh treason, the question whether the wife
is admissible as a witness against her husband has been much
discussed, and opinions of great weight have been given on both
sides. The affirmative of the question is maintained,^ on the
ground of the extreme necessity of the case, and the nature of
.the offence, tending as it does to the destruction of many lives,
the subversion of government, and the sacrifice of social happiness.
For the same reasons, als6, it is said, that, if the wife should
commit this crime, no plea of coverture shall excuse her ; no pre-
sumption of the husband's coercion shall extenuate her guilt.^
But, on the other hand, it is argued, that, as she is not bound to
Rex V. Earl Ferrers, 1 Burr. 635. Her 79, 82 ; Rex v. Lufib, 8 East, 193 ; Com-
affiJavit is also .ailinis"sible, on an applica- monwealth v. Shepherd, 6 Binn. 288 ;
tiou for iin information against hira tor an The State v. Pettavvay, 3 Hawks, 623.
attempt to take lier by force, contrary to So, after divorce a vinculo, the wife may
articles of separation; Lady Lawley's case, be a witness for her late husband, in an
Bull. N. 1'. 287; or, in a habeas corpus action brought by him against a third per-
sucd out by him for the same object. IJex son, for criminal conversation with her
V. Mead, 1 Burr. 542. during the marriage. Ratclilf i'. Wales, 1
1 1 iCast's P. C. 455. In "Wakefield's Hill, N. Y. Rep. 63 ; Dickerman v. Graves,
case, 2 Lo vin, Cr. Cas. 287, IluUock, B., 6 Cush. 308. So, it has been held, that on
expressed himself to the same effect, an indictment against him for an assault
speaking of the admissibility of the wife and battery upon her, she is a competent
only. 2 Hawk. 1'. C. c. 46, § 77; The witness for him, to disprove the cliarge.
I'eiiple I'.r rel . ; Ordronaux v. Chegaray, The State t>. Neil, 6 Ala. 685.
18 Wei\d. 042. * Cope v. Cope, 1 it. & Rob. 269, 274
2 In Rex V. Jagger, cited 2 Russ. on Goodright v. Moss, Cowp. 594; supra, §
Ci'imes, (i06. [The wife is not a compe- 28.
tent witness against the husband, in an ^ These authorities may be said to fa-
indiclnient against him for subornation of vor the affirmative of the question: — 2
perjury to wrong her in a judicial pro- Russ. on Crimes, 607 ; Bull, N. V. 286; 1
ceeding. People u. Carpenter, 9 Barb. Gilb. Evid. by Lofft, 252 ; Mary Grigg's
580.] case, T. Raym. 1 ; 2 Stark. Evid. 404,
8 Rex u. Reading, Cas. temp. Hardw. <> 4 Bl. Comm. 29.
CHAP. II.J COMPBTENCT OP WITNESSES. 397
discover her husband's treason,^ by parity of reason she is not
compellable to testify against him.^ The latter is deemed, by the
later texl^writers, to be the better opinion.^
§ 346. Upon the same principle on which the testimony of the
husband or wife is sometimes admitted as well as for some other
reasons already stated,* the dying declarations of either are admis-
sible, where the other party is charged with the murder of the
declarant.^
§ 347. The rule, excluding parties from being witnesses, applies
'to all cases where the party has any interest at stake in the suit,
although it be only a liability to costs. Such is the case of
a proohein ami,^ a guardian, an executor or administrator ; and so
also of trustees and the officers of corporations, whether public or
private, wherever they are liable in the first instance for the costs,
though they may have a remedy for re-imbursement out of the
public or trust funds. ^
§ 348. But to the general rule, in regard to parties, there are
some exceptions in which the party'' s owri oath may be received as
competent testimony. One class of these exceptions, namely, that
in which the oath in litem is received, has long been familiar in
courts administering remedial justice, according to the course of
the Roman law, though in the common law tribunals its use has
been loss frequent and more restricted. The oath in litem is
admitted in two classes of cases : first, where it has been already
proved that the party against whom it is offered has been guilty
of some fraud or other tortious and unwarrantable act of intermed-
dling with the complainant's goods, and no other evidence can be
had of the amount of damages ; and, secondly, where, on general
grounds of public policy, it is deemed essential to the purposes of
' 1 Brownl. 47. 288 ; and would therefore seem to be a
2 1 Hale's P. C. 48, 301 ; 2 Hawk. P. competent witness. And by Stat. 1839,
C. ch. 46, § 82 ; 2 Bac. Ab. 578, tit. Evid. ch. 107, § 2, an executor, administrator,
A. 1 ; 1 Chitty's Crim. Law, 595 ; Mc- guardian, or trustee, though a party, if
NiiUy's Evid. J81. liable only to costs, is made competent to
5 Roscoe's Crim. Evid. 114 ; Phil. & testify to any matter known to him, " be-
Am. on Evid. 161 ; 1 Phil. Evid. 71. See fore he assumed the trust of his appoint-
also 2 Stark. Evid. 404, note (b). ment." In Vin/inia, any such trustee is
* Supra, § 156. admissible as a witness, generally, pro-
' Rex V. Woodcock, 2 Leach, 563 ;• Mc- vided some other person shall first stipu-
Nally's Evid. 174 ; Stoop's case, Addis, late in his stead for the costs to wliich ho
381 ; The People v. Green, 1 Denio, K. may be liable. Rev. Stat. 1849, ch. 176,
614. § 18.
° In Massachusetts, by force of the stat- ' Hopkins v. Neal, 2 Stra. 1026 ; James
utes respecting costs, a prochein ami is not v. Hatfield, 1 Stra. 548 ; 1 Gilb. Evid. by
Uable to costs ; Crandall v. Slaid, 11 Met. Lofft, p. 225 ; Rex v. St. Mary Magdalen,
VOL I. 34
398
LAW OP EVIDENCE.
[part III.
justice.^ An example of the former class is given in tlie case
of the bailiffs, who, in the service of an execution, having discov-
ered a sum of money secretly hidden in a wall, took it away and
embezzled it, and did great spoil to the debtor's goods ; for which
they were holden not only to refund the money, but to malce good
such other damage as the plaintiff would swear he had sustained.^
So, where a man ran away with a casket of jewels, he was ordered
to answer in equity, and the injured party's oath was allowed as
evidence, in odium spoliatori's? The rule is the same at law.
Thus, where a shipmaster received on board his vessel a trunk of
goods, to be carried to another port, but on the passage he IwIck
open the trunk and rifled it of its contents ; in an action by the
owner of the goods against the shipmaster, the plaintiff, proving
aliunde the delivery of. the trunk and its violation, was held com-
petent as a witness, on the ground of necessity, to testify to the
particular contents of the trunk.* And, on the same principle.
Bermonclsey, 3 East, 7 ; Whitmore v.
Wilks, I Mood. & M. 220, 221 ; Gresley
on Evid. 242, 243, 244 ; Bellew v. Russell,
1 Ball & Beat. 99; Wolley u. BrowchiU,'
13 Price, 513, 514, per HuUock, B. ; Bar-
rett V. Gore, 3 Atk. 401 ; Fountain v. Coke,
1 Mod. 107 ; Goodtitle v. Welford, 1 Doug.
139. In this country, where the party to
the record is, in almost every case, liable
to costs in the first instance, in suits at
law, he can hardly ever be competent as a
witness. Fox v. Adams, 16 Mass. 118,
121 ; Sears ;;. Dilhngham, 12 Mass. 360.
See also Willis on Trustees, pp. 227, 228,
229; Erear v. Evertson, 20 Jolnis. 142;
Bellamy v. Cains, 3 Rich. 354 ; {supra, §
329 and note.]
1 Tait on Evid. 280.
2 Childrens v. Saxby, 1 Vem. 207 ; 1
Eq. Ca. Ab. 223, s. c.
8 Anon, cited per the Lord Keeper, in
E. Ind. Co. V. Evans, 1 Vem. 308. On
the same principle in a case of gross
fraud, chancery will give costs, to be as-
certained by the party's own oath. Dyer
V. Tymewell, 2 Vem. 122.
* Herman v. Drinkwater, 1 Greenl. 27.
See also Sneider v. Geiss, 1 Yeates, 34 ;
Anon. Coram Montague, B., 12 Vin. Abr.
24, Witnesses, I. pi. 34. Sed vid. Bingham
V. Rogers, 6 Walts & Serg. 495. The case
of Herman v. Drinkwater wa,s cited and
tacitly re-affirmed by the court in Gilmore
V. Bowden', 3 Fairf. 412; the admissibility
of the party .is a witness being placed on
the ground of necessity. But it is to be
observed that, in Herman v. Drinkwater,
the defendant was guilty of gross fraud,
at least, if not of larceny. It was on this
ground of gross fraud and misconduct that
the rule in this case was agreed to in Snow
V. The Eastern Railroad Co. 12 Met. 44 ,
the court denying its application in cases
of necessity alone, and in the absence of
fraud. Therefore, where an action on the
case was brought by a passenger against a
railway company', for the loss of his trunk
by their negligence, there being no allega-
tion or proof of fraud or tortious act, the
court held, that the plaintiff was not ad-
missible as a witness, to testify to the con-
tents of his trunk. Ibid. As this decision,
which has been reported since the last
edition of this work, is at variance with
that of Clark v. Spence, cited in the next
note, the following observations of the
court should be read by the student in
this connection : " The law of evidence is
not of a fleeting character ; and though
new cases are occurring, calling for its
application, yet the law itself rests on the
foundation of the ancient common law,
one of the fundamental rules of which is,
that no person shall be a witness in his
own case. This rule has existed for ages,
with very Uttle modification, and has
yielded only where, from the nature of
the case, other evidence was not to be ob-
tained, and there would be a failure of
justice without the oath of the party.
These are exceptions to the rule, and form
a rule of themselves. In some cases, the
admission of the party's oath is in aid of
the trial ; .and in others, it bears directly
on the subject in controversy. Thus th'
oath of the party is admitted in respect i
CHAP. II.]
COMPETENCY OP WITNESSES.
399
the bailor, tlioiigh a plaintiff, has been admitted a competent wit-
ness to prove the contents of a trunk, lost by the negligence of the
bailee.^ Such evidence is admitted not solely on the ground of
a lost deed, or other paper, preparatory to
the offering of secondary evidence to prove
its contents ; and also for the purpose of
procuring a continuance of a suit, in order
to obtain testimony ; and for other reasons.
So tlie oath of a party is admitted to prove
the truth of entries in his boolc, of goods
delivered in small amounts, or of daily
labor performed, when the parties, from
their situation, have no evidence but their
accounts, and from the nature of the trafSc
or service, cannot have, as a general thing.
So, in complaints under the bastardy act,
where the offence is secret, but yet there
is full proof of tlie fac't, the oath of the
woman is admitted to charge the indi-
vidual. In cases, also, where robberies or
larcenies have been committed, and where
no other evidence exists but that of the
party robbed or plundered, he has been
admitted as a witness to prove his loss ;
as it is said the law so abliors the act that
the party injured shall have an extraordi-
nary remedy in odium spoUutmns. Upon
this principle. In an action against the hun-
dred, under the statute of Winton, the
person robbed was admitted as a witness,
to prove his loss and the amount of it.
Bull. N. P. 187 ; Esp. on Penal Stats. 211 ;
1 Phil. Ev. ch. 5, § 2 ; 2 Stark. Evid. 681 ;
Porter v. Hundred of Kegland, Peake's
Add. Cas. 203. So in equity, where a
man ran away with a casket of jewels, the
party injured was admitted as a witness.
East India Co. v. Evans, 1 Vern. 308. A
case has also been decided in Maine, Her-
man V. Drinkwater, 1 Greenl. 27, where
the plaintiff was- admitted to testify. In
that case, a shipmaster received a trunk
of goods in London, belonging to the
plaintiff, to be carried in his ship to New
York, and on- board which the plaintiff
had engaged his passage. The master
sailed, designedly leaving the plaintiff,
and proceeded to Portland instead of New
York. He there broke open and plun-
dered tho trunk. These facts were found
aliunde, and the plaintiff was allowed to
testify as to the contents of the trunk.
These cases proceed upon the criminal
charaeter of the act, and are limited in
their nature. The present case does not
fall within the principle. Here was no
robbery, no tortious taking away by the
defendants, no fraud committed. It is
simply a case of negligence on the part of
carriers. The case is not brought within
any exception to the common rule, and is
a case of defective proof on the part of the
plaintiff, not arising from necessity, but
from want of caution. To admit the plain-
tiff's oath, in cases of this nature, would
lead, we think, to much greater mischiefs,
in the temptation to frauds and perjuries,
than can arise from excluding it. If the
party about to travel places valuable arti-
cles in his trunk, he should put them
under the special charge of the carrier,
with a statement of what they are; and of
their value, or provide other evidence, be-
forehand, of the articles taken by him.
If he omits to do this, he then takes the
chance of loss, as to the value of the arti-
cles, and is guilty, in a degree, of negli-
gence,— the very thing with which he
attempts to cliarge the carrier. Occa
sional evils only have occurred, from such
losses, through failure of proof; the rela-
tion of carriers to the party being such
that the losses are usually adjusted by
compromise. And there is nothing to
lead us to innovate on the existing rules
of evidence. No new case is presented ;
no facts which have not repeatedly oc-
curred ; no new combination of circum-
stances." See 12 Met. 46, 47. [See also
Wriglit V. Caldwell, 3 Mich. 51.]
1 Clark V. Spence, 10 Watts, R. 335 ;
Story on Bailm. § 454, note (3d edit.). In
this case, the doctrine in the' text was
more fully expounded by Rogers, J., in
the following terras: "A party is not
competent to testify in his own cause ;
but, like every other general rule, this
has its exceptions. Necessity, either
physical or moral, dispenses with the
ordinary rules of evidence. In 12 Vin.
24, pi. 32, it is laid down, that on a trial
at Bodnyr, coram Montague, B., against a
common carrier, a question arose about
the things in a box, and lie declared that
this was one of those cases where the
party himself might be a witness ex neces-
sitate rei. For every one did not show
what lie put in his box. The same prin-
ciple is recognized in decisions which have
been had on the statute of Hue and Cry
in England, where the party robbed is
admitted as a witness ex necessitate. Bull
N. P. 181. So, in Herman v. Drinkwater,
1 Greenl. E.. 27, a shipmaster having re
ceived a trunk of goods on board his ves-
sel, to be carried to another port, which,
on the passage, he broke open and rifled
of its contents ; the owner of the goods,
proving the deUvery of the trunk and its
violation, was admitted as a witness in an
action for the goods, against the ship-
400 LAW OP EVIDENCE. [PART III.
the just odium entertained, both in equity and at law, against
spoliation, but also because, from the necessity of the case and the
nature of the subject, no proof can otherwise be expected ; it not
being usual even for the most prudent persons, in such cases, to
exhibit the contents of their trunks to strangers, oi to provide
other evidence of their value. For, where the law can have no
force but by the evidence of the person in interest, there the rules
of the common law, respecting evidence in general, are presumed
to be laid aside ; or rather, the subordinate are silenced by the
most transcendent and universal rule, that in all cases , that evi-
dence is good, than which the nature of the subject presumes none
better to be attainable. ^
§ 349. Upon the same necessity, the party is admitted in divers
other cases to prove the facts, which, from their nature none but
a party could be likely to know. But in such cases, a foundation
must first be laid for the party's oath, by proving the other facts
of the case down to the period to which the party is to speak.
As, for example, if a deed or other material instrument of evi-
dence is lost, it must first be proved, as we shall hereafter show,
that such a document existed ; after which the party's own oath
may be received to the fact and circumstances of its loss, provided
it was lost out of his own custody .^ To this head of necessity
master, to testify to the particular contents to me to be of no consequence, whether
of the trunk, there being no other evidence the article was sent by a carrier, or accom-
of the fact to be obtained. That a party panied the traveller. The case of Herman
then can be admitted, under certain cir- v. Drinkwater, I would remark, was de-
cumstances, to prove the contents of a cided under very aggravated eircum-
box or trunk, mnst be admitted. But stances, and was rightly ruled. But it
while we acknowledge the exception, we must be understood, that such proof can
must be careful not to extend it beyond its be admitted, merely because no other evi-
legitiraate limits. It is admitted from ne- denceoftbe fact can be obtained. For, if
cessity, and perhaps on a principle of con- a merchant, sending goods to his corres-
venience, because, as is said in Vesey, pondent, chooses to pack them himself,
every one does not show what he puts in his neglect to furnish himself with the
a box. Tliis applies with great force to ordinary proof is no reason for dispensing
wearing apparel, and to every article with the rule of evidence, which requires
which is necessary or convenient to the disinterested testimony. It is not of the
traveller, which, in most cases, are packed usual course of business, and there must
by the party himself, or his wife, and be something peculiar and extraordinary
which, therefore, would admit of no other in the circumstances of the ease, which
proof. A lady's jewelry would come in would justify the court in admitting the
this class, and it is easier to conceive than oath of the party." See 10 Watts, 11. 336,
to enumerate other articles, which come 337. See also ace. David v. Moore, 2
within the same category. Nor would it Watts & Serg. 230; Wliitesell v. Crane, 8
be right to restrict the list of articles, Watts & Serg. 369 ; McGill v. Eowand, 3
which may be so proved, within narrow Barr, 451 ; County v. Leidv, 10 Barr, 45.
limits, as the jury will be the judges of i Gilb. Evid. by Loflt," pp. 244, 245 ;
the credit to be attached to tlie witness, supra, § 82.
and be able, in most cases, to prevent any 2 ^nfi-a, § 558 ; Tayloe v. Riggs, 1 Pe-
injury to the defendant. It would seem ters, 591, 696; Patterson i>. Winn, 5 Petera,
CHAP. II.] COMPETENCY OP WITNESSES. 401
may be referred the admission of the party robbed, as a witness
for himself, in an action against tlie hundred, upon the statute of
Winton.^ So, also, in questions which do not involve the matter
in controversy, but matter which is auxiliary to the trial, and
which in their nature are preliminary to the principal subject of
controversy, and are addressed to the court, the oath of the party
is received.^ Of this nature is his affidavit of the materiality of
a witness ; of diligent search made for a witness, or for a paper ;
of his inability to attend ; of the death of a subscribing witness ;
and so of other matters, of which the books of practice abound in
examples.
§ 350. The second class of cases, in which the oath in litem is
admitted, consists of those in which public necessity or expediency
has required it. Some cases of this class have their foundation
in the edict of the Roman Praetor ; Nautce, caupones, stabularii,
quod cujusque salvwm fore receperint, nisi restituent, in eos Judicium
daho.^ Though the terms of the edict comprehended only ship-
masters, innkeepers, and stable-keepers, yet its principle has been
held to extend to other bailees, against whom, when guilty of a
breach of the trust confided to them, damages were awarded upon
the oath of the party injured, per modum pcence to the defendant,
and from the necessity of the case.* But the common law has
240, 242 ; Riggs v. Taylor, 9 Wheat. 486 ; tions for bastardy, whether by the female
Taunton Bank v. Richardson, 5 Pick. 436, herself, or by the town or parish officers,
442 ; Poignard v. Smith, 8 Pick. 278; Page she is competent to testify to facts within
V. Page, 15 Pick. 368, 374, 375 ; Chamber- her own exclusive knowledge, though in
Iain V. Gorham, 20 Johns. 144 ; Jackson v. most of the United States, the terms of
Frier, 16 Johns. 193 ; Douglass v. Saun- her admission are prescribed by statute,
derson, 2 Ball. 116 ; 1 Yeates, 15, s. c; Drowne v. Simpson, 2 Mass. 441 ; Judson
Meeker v. Jackson, 3 Yeates, 442 ; Blanton v. Blanchard, 4 Conn. 557 ; Dayis v. Salis-
V. Miller, 1 Hayw. 4 ; Seekright v. Bogau, bury, 1 Day, 278 ; Mariner v. Dyer, 2
Id. 178, n.; Smiley v. Dewey, 17 Ohio, Greenl. 172; Anon. 3 N. Hamp. 185;
156. In Connecticut, the party has been Mather v. Clark, 2 Aik. 209 ; The State v.
adjudged incompetent. Coleman v. Wol- Coatney, 8 Yerg. 210.
cott, 4 Day, 388. But this decision has i Bull. N. P. 187, 289.
since been overruled ; and it is now held, - 1 Peters, 896, 597, per Marshall, C.
that a party to the suit is an admissible J. See also Anon. Cro. Jac. 429 ; Cook v.
witness, to prove to the court that an in- Remington, 6 Mod. 237 ; "Ward v. Apprice,
Btrument, which it is necessary to produce Id. 264 ; Scoresby v. Sparrow, 2 Stra.
at the trial, is destroyed or lost, so as to 1186 ; Jevans v. Harridge, 1 Saund. 9 ;
let in secondary evidence ; that there is no Forbes v. Wale, 1 W. Bl. 532 ; 1 Esp. 278,
distinction, in this respect, between cases s. c; Fortescue and Coake's case, Godb.
where the action is upon the instrument, 193 ; Anon. Godb. 326 ; 2 Stark Evid. 580,
and those where the ctuestion arises indi- ' note (2), 6th Am. edit. ; infra, § 558.
rectly ; and that it is of no importance, in ^ Dig. lib. 4, tit. 9, 1. 1
the order ofexhibitingthe evidence, which * This head of evidence is recognized
fact is first proved, whether the fact of the in the courts of Scotland, and is fully ex-
existence and contents of the instrument, plained in Tait on Evid. pp. 280-287. In
or the fact of its destruction or loss. Fitch Lower Canada, the courts are bound to
u. Bogue, 19 Conn. 285. In the prosecu- admit the decisory oath (serment decismre)
34»
402 LAW OP EVIDENCE. [PART HI.
not admitted the oath of the party upon the ground of the Prastor's
edict ; but has confined its admission strictly to those cases where,
from their nature, no other evidence was attainable. ^ Thus, in
cases of necessity, where a statute can receive no execution, unless
the party interested be a witness, there lie must be allowed to
testify ; for the statute must not be rendered inefifectual by the
impossibility of proof.^
§ 351. Anotlaer exception is allowed in equity, by wliich the
answer of the defendant, so far as it is strictly responsive to the bill,
is admitted as evidence in his favor as well as against him. The
reason is, that the plaintiff, by appealing to the conscience of
the defendant, admits that his answer is worthy of credit, as to
the matter of the inquiry. It is not conclusive evidence ; but is
treated like tlie testimony of any other witness, and is decisive of
the question only where it is not outweighed by other evidence.^
§ 352. So also the oath of the party, taken diverso intuitu, may
sometimes be admitted at law in his favor. Thus, in considering
the question of the originality of an invention, the letters-patent
being in the case, the oath of the inventor, made prior to the
issuing of the letters-patent, that he was the true and first inventor,
may be opposed to the oath of a witness, whose testimony is
offered to show that the invention was not original.* So, upon the
trial of an- action for malicious prosecution, in causing the plaintiff
to be indicted, proof of the evidence given by the defendant on the
trial of the indictment is said to be admissible in proof of probable
cause.^ And generally, the, certificate of an officer, when by law
it is evidence for others, is competent evidence for himself, if, at
the time of making it, he was authorized to do the act therein
certified.^
of the parties, in commercial matters, witness, unless he has specific authority
whenever either of them shall exact it of so to do. Smitli v. Sparrow, 11 Jur. 126.
the other. Eer. Stat. 1845, p. 143. * Alden v. Dewey, 1 Story, R. 336 ; 3
1 Wager of law is hardly an exception Law Reporter, 383, s. c. ; Pettibone v
to tliis rule of the common law, since it Derringer, 4 Wash. R. 215.
was ordinarily allowed only in cases where ^ Bull. N. P. 14 ; Johnson v. Browning,
the transaction was one of personal and 6 Mod. 216. "Por otherwise," said Holt,
private trust and confidence between the C. J., " one that should be robbed, &c.,
■parties. See 3 Bl. Comm. 345, 346. would be under an intolerable mischief;
^ The United States v. Murphy, 16 Pe- for if he prosecuted for such robbery, &c.,
ters, R. 203. See infra, § 412. and the party should at any rate be ac-
8 2 Story on Eq. Jur. § 1528 ; Clark v. quitted, the prosecutor would be liable to
Van Reimsdyk, 9 Craneh, 160. But the an action for a maUcious prosecution, witli-
answer of an infant can never be read out a possibility of making a good defence,
against him ; nor can that of a feme covert, though the cause of prosecution were never
answering jointly with her husband. Gres- so pregnant."
ley on livid, p. 24. An arbitrator has no " McKnight v. Iiewis, 5 Barb. S. C. R.
right to admit a party in the cause as a 181 : McCuUr v. Malcolm, 9 Humph. 18'^
CHAP. II.J COMPETENCY OP WITNESSES. 403
§ 353. The rule which excludes the payty to the suit from being
admitted as a witness is also a rule of protection, no person who
is a party to the record being compellable to testify .^ It is only
when he consents to be examined, that he is admissible in any
case ; nor then, unless under the circumstances presently to be
mentioned. If he is only a nominal party, the consent of the real
party in interest must be obtained before he can be examined.'^
Nor can one who is substantially a party to the record be com-
pelled to testify, though he be not nominally a party .^
§ 354. It has been said, that where one of several co-flaintiffs
voluntarily/ comes forward as a witness for the adverse party, he
is admissible, without or even against the consent of his fellows ;
upon the ground, that he is testifying against his own interest,
that the privilege of exemption is personal and several, and not
mutual and joint, and that his declarations out of court being
admissible, d fortiori, they ought to be received, when made in
court under oath.* But the better opinion is, and so it has been
resolved,^ that such a rule would hold out to parties a strong
So, the account of sales, rendered by a, Hartley's Dig., Arts. 735, 739 ; California,
consignee, may be evidence for some pur- Eev. Stat. 1850, c. 142, § 296-303 ; [supra,
poses, in his favor, against the consignor. § 329 and note,] See vol. 3, § 317.
Mertens v. Nottebohms, 4 Grant, 163. * l^hil. & Am. on Evid. 158 ; 1 Phil.
1 Rex V. Woburn, 10 East, 395 ; Wor- Evid. 60. The cases which are usually
rail V. Jones, 7 Bing. 395 ; Fenn v. Gran- cited to support this opinion, are Norden
ger, 3 Campb.'177; Mant t). Mainwaring, v. Williamson, 1 Taunt. 377; Fenn v.
8 Taunt. 139. Granger, 3 Campb. 177, and Worrall v.
2 Frear v. Evertson, 20 Johns. 142. Jones, 7 Bing. 395. But in the first of
And see The People v. Irving, 1 Wend, these cases, no objection appears to have
20; Commonwealth !). Marsh, 21 Pick. 57, been made on behalf of the other co-
per Wilde, J. ; Columbian Manuf. Co. v. plaintiff, that his consent was necessary ;
Dutch, 13 Pick. 125 ; Bradlee v. Neal, 16 but the decision is expressly placed on the
Pick. 501. In Connecticut and Vermont, ground, that neither party objected at the
where the declarations of the assignor of time. In Fenn v. Granger, Ld. EUen-
a chose in action are still held admissible borough would have rejected the witness,
to impeach it in the hands of the assignee, but the objection was waived. In Wor-
in an action brought in the name of the rail v. Jones, the naked question was,
former for the benefit of the latter, the whether a defendant who has suffered
defendant is permitted to read the depo- judgment by default, and has no interest
sition of the nominal plaintiff, voluntarily in the event of the suit, is admissible as a
given, though objected to by the party in witness for the plaintiff, by his own con-
interest. Woodruff «. Westcott, 12 Conn, sent, where "the onltj objection t3 his ad-
)o4; Johnson v. Blackman, 11 Conn. 342; missibility is this, that he is party to the
hargeant v. Sargeant, 3 Wash. 371. See record." See also WiUings v. Consequa,
supra, 190. 1 Peters, C. C. E. 307, per Washington,
" Mauran v. Lamb, 7 Cowen, 174; Rex J.; Paine v. Tilden, 3 Washb. 554; [Wills
V. Woburn, 10 East, 403, per Ld. Ellen- v. Judd, 26 Vt. 617.]
borough. In several of the United States - * Scott v. Lloyd, 12 Peters, 149. See
it is enacted that the parties, in actions at also 2 Stark. Evid. 580, note (e) ; Bridges
law, as well as in equity, may interrogate v. Armour, 5 How. S. C. R. 91 ; Evans v.
each other as witnesses. See Massachu- Gibbs, 6 Humph. 405; Sargeant o. Sar-
setts, Stat. 1852, c. 312, § 61-75 ; New York, geapt, 3 Washb. 371.
Code of Practice, §§ 344, 349. 350 : Texas.
404 LAW OF EVIDENCE. [PAKT III.
temptation to perjury; that it is not suppoi'ted by principle or
authority, and that tlierefore the party is not admissible, without
the consent of all parties to the record, for that the privilege ia
mutual and joint, and not several. It may also be observed, that
the declarations of one of several parties are not always admissible
against his fellows, and that when admitted, they are often sus-
ceptible of explanation or contradiction, where testimony under
oath could not be resisted.
§ 355. Hitherto, in treating of the admissibility of parties to
the record as witnesses, they have been considered as still retain-
ing their original situation, assumed at the commencement of the
suit. But as the situation of some of the defendants, where there
are several in the same suit, may be essentially changed in the
course of its progress, by default, or nolle prosequi, and sometimes
by verdict, their case deserves a distinct consideration. This
question has arisen in cases where the 'testimony of a defendant,
thus situated, is material to the defence of his fellows. And here
the general doctrine is, that where the suit is ended as to one of
several defendants, and he has no direct interest in its event as
to the others, he is a competent witness for them, his own fate
being at all events certain. i
§ 356. In actions on contracts, the operation of this rule was
formerly excluded ; for the contract being laid jointly, the judg-
ment by default against one of several defendants it was thought,
would operate against him, only in the event of a verdict against
the others ; and accordingly he has been held inadmissible in such
actions, as a witness in their favor.^ On a similar principle, a
defendant thus situated has been held not a competent witness for
the plaintiiF; on the ground that, by suifering judgment by default,
he admitted that he was liable to the plaintiff's demand, and was
therefore directly interested in throwing part of that' burden on
another person.^ But in another case, where the action was upon
a bond, and the principal suffered judgment by default, he was
admitted as a witness for the plaintiff, against one of the other
defendants, his surety ; though here the point submitted to the
court was narrowed to the mere abstract question, whether a
1 Infra, §§ 858, 359, 360, 363. 125 ; Mills v. Lee, 4 Hill, E. 549 ; [Thom-
2 Mant V. Mainwarlng, 8 Taunt. 139; ton v. Blaisdell, 37 Maine, 199; fang ».
Brown v. Brown, 4 Taunt. 752; Scher- Lowry, 20 Barb. 532.]
merhorn v. Schermerhorn, 1 "Wend. 119 ; * Green v. Sutton, 2 M. & Rob. 269.
Columbli. Man. Co. v. Dutch, 13 Pick.
CHAP. II.]
COMPBTENCT OP WITNESSES.
405
party to the record was, oii that account alone, precluded from
being a witness, he having no interest in the event.^ But the
whole subject has more recently been reviewed in England, and
the rule established, that where one of two joint defendants in an
action on contract, has suffered judgment by default he may, if
not otherwise interested iti procuring a verdict for the plaintiff, be
called by him as a witness against the other defendant.^ So, if
the defence, in an action ex contractu against several, goes merely
to the personal discharge of the party pleading it, and not to that
of the others, and the plaintiff thereupon enters a nolle prosequi as
to him, which in such cases he may well do, such defendant is no
longer a party upon the record, and is therefore competent as
a witness, if not otherwise disqualified. Thus, where the plea by
one of several defendants is bankruptcy,^ or, that he was never
executor, or, as it seems by the later and better opinions, infancy
or coverture,* the plaintiff may enter a nolle prosequi as to such
party, who, being thus disengaged from the record, may be called
1 Worrall v. Jones, 7 Bing. 395. See
Foxcroft V. NsYens, 4 Greenl. 72, contra.
In a case before Le Blanc, J., he refused
to permit one defendant, who had suffered
judgment to go by default, to be called by
the plaintiff to inculpate the others, even
in an action of trespass. Chapman v.
iliraves, 2 Campb. 333, 334, note. See
ace. Supervisors of Clienango v, Birdsall,
4 Wend. 456, 457. The general rule is,
that :i party to the record can, in no case,
be examined as a witness ; a rule founded
principally on the poUcy of preventing
perjury, and the hardship of calling on a
party to charge himself. Frazier v. Laugh-
lin, 1 Gilm. 347 ; Flint v. AUyn, 12 Verm.
615 ; Kennedy ;;. Niles, 2 Shepl. 54; Stone
V. Bibb, 2 Ala. 100. And this rule is
strictly enforced against plaintiffs, because
the joining of so many defendants is gene-
rally their own act, though sometimes it
is a matter of necessity. 2 Stark. Evid.
581, note (a) ; Blackett ;;. Weir, 5 B. & C.
387 ; Barrett v. Gore, 3 Atk. 401 ; Bull. N.
P 285; Gas. temp. Hardw. 163.
2 Pipe V. Steel, 2 Ad. & El. 733, n. s.;
Cupper V. Newark, 2 C. & K. 24 Thus,
he has been admitted, with his own con-
sent, as a witness to prove that he is the
principal debtor, and that the signatures
of the other defendants, who are his sure-
ties, are genuine. Mevey v. Matthews, 9
Barr, 112. But generally he is interested;
either to defeat the action against both, or
to throw on the other defendant a portion
of the demand, or to reduce the amount to
be recovered. Bowman v. Noyes, 12 N.
Hamp. 302 ; George v. Sargeant, Id. 313 ;
Vinal V. Burrill, 18 Pick. 29; Bull v.
Strong, 8 Met. 8; Walton v. Tomlin, 1
Ired. 593 ; Turner v. Lazarus, 6 Ala. tS75 ;
[Manchester Bank v. Moore, 19 N. H. 564;
Kineaid v. Purcell, 1 Carter, 324.]
3 Noke V. Ingham, 1 Wils. 89 ; 1 Tidd's
Pr. 602 ; 1 Saund. 207, a. But see Mills
V. Lee, 4 Hill, R. 549.
* 1 Paine & Duer's Pr. 642, 643 ; Wood-
ward V. Newhall, 1 Pick. 500; Hartness
V. Thompson, 5 Johns. 160 ; Pell v. Pell,
20 Johns. 126 ; Burgess v. Merrill, 4 Taunt.
468.^ The ground is, that these pleas are
not in bar of the entire action, but only in
bar as to the party pleading ; and thus the
case is brought within the general princi-
ple, thafwhere the plea goes only to the
personal discharge of the party pleading
it, the plaintiff may enter a nolle prosequi.
1 Pick. 501, 502. See also Minor v. The
Mechanics' Bank of Alexandria, i Peters,
74. So, if the cause is otherwise adjudi-
cated in favor of one of the defendanis,
upon a plea personal to himself, whether
it be by the common law, or by virtue of
a statute authorizing a separate finding in
favor of one defendant, in an action upon
a joint contract, the result is the same.
Blake v. Ladd, 10 New Hamp. 190 ; Essex
Bank v. Rix, Id. 201 ; Brooks v. M'Ken-
ney, 4 Scam. 309. And see Campbell a
Hood, 6 Mis. 211.
406
LAW OP EVIDENCE.
[part III.
as a witness, the suit still proceeding against the others.^ The
mere pleading of the bankruptcy, or other matter of personal dis-
charge, is not alone sufficient to render the party a competent
witness ; and it has been held, that he is not entitled to a previous
verdict upon that plea, for the purpose of testifying for the
others.^
§ 357. In actions 07i torts, these being in their nature and legal
consequences several, as well as ordinarily joint, and there being
no contribution among wrongdoers, it has not been deemed neces-
sary to exclude a material witness for the defendants, merely
because the plaintiff has joined him with them in the suit, if the
suit, as to him, is already determined, and he has no longer any
legal interest in the event.^ Accordingly, a defendant in an action
for a tort, who has suffered judgment to go by default, has uni-
formly been held admissible as a witness for his co-defendants.*
Whether, being admitted as a witness, he is competent to testify
to the amount of damages, which are generally assessed entire
against all who are found guilty,^ may well be doubted.^ And
1 Mclver v. Humble, 16 East, 171, per
Le Blanc, J., cited 7 Taunt. 607, per Park,
J. ; Moody v. King, 2 B. & C. 558 ; Aflalo
V. Fourdrinier, 6 Bing. 306. But see Ir-
win V. Sliumaker, 4 Barr, 199.
2 Raven v. Dunning, .3 Esp. 25 ; Em-
mett V. Butler, 7 Taunt. 599; 1 Moore,
332, s. c; Scliermerhorn v. Schermer-
horn, 1 Wend. 119. But in a later case,
since the 49 G. III., c. 121, Park, J., per-
mitted a verdict to be returned upon the
plea, in order to admit the witness. Bate
V. Russell, 1 Mood. & M. 832. Where, by
statute, tlie plaintilf, in an action on a
parol contract against several, may have
judgment against one or more of the de-
fendants, according to his proof, there it
lias been held, that a defendant who has
been detiiuUed is, with his consent, a com-
petent witness in favor of his co-defend-
ants. Bradlce v. Neal, IB Pick. 501. But
this has piiice been questioned, on the
grouii.l that his interest is to reduce the
demaii'l of the plaintiff against the others
to nominal damages, in order that no
greater damiges may be assessed against
him upon his detiiult. Vinal v. Burrill,
1,3 Pick. 29. [Vinal o. Burrill is distin-
guished from Bradlee v. Neal, by Shaw,
C. J., in Gerrish v. Cummings, 4 Gush.
892.]
" As, if one has been separately tried
and acquitted. Carpenter v. Crane, 5
Black, ll',i.
* Ward V. Haydon, 2 Esp. 552, ap-
proved in Hawkesworth v. Showier, 12
M. & W. 48; Chapman v. Graves, 2
Campb. 334, per Le Blanc, J. ; Common-
wealth V. Marsh, 10 Pick. 57, 58. A de-
fendant, in such case, is also a competent
witness for the plaintiff. Hadriek v. Hes-
lop, 12 Jur. 600; 17 Law J., n. s. 313 ; 12
Ad. & El. 266, N. s. The wife of one
joint trespasser is not admissible as a
witness for the other, though the case is
already fully proved against her husband,
if he is still a party to the record. Hawkes-
worth V. Showier, 12 M. & W. 45.
6 2 Tidd's Pr. 896.
6 In Mash v. Smith, 1 C. & P. 5V'(,
Best, C. J., was of opinion, that the wit-
ness ouglit not to be admitted at all, on
the groimd that his evidence might give
a different complexion to the case, and
thus go to reduce the damages against
himself; but on the authority of Ward v.
Haydon, and Chapman v. Graves, he
thought it best to receive the witness,
giving leave to the opposing party to
move for a new trial. But the point was
not moved ; and the report does not show
whicli way was the verdict. It has, how-
ever, mure recently been liold in England,
that a defendant in trespass, who has suf-
fered judgment by default, is not a compe-
tent witness for his co-defendant, where
the jury are sunnnoned as well to try Iho
issue against the one, as to assess damages
CHAP. II.] JOMPETBNCT OF WITNESSES. 407
indeed the rule, admitting a defendant as witness for his fellows in
any case, must, as it should seem, be limited strictly to the case
where his testimony cannot directly make for himself; for if the
plea set up by the other defendants is of such a nature, as to show
thai the plaintiff has no cause of action against any of the defend-
ants in the suit, the one who suffers judgment by default will be
entitled to tlie benefit of the defence, if established, and therefore
is as directly interested as if the action were upon a joint contract.
It is, therefore, only where the plea operates solely in discharge
of the party pleading it, that another defendant, who has suffered
judgment to go by default, is admissible as a witness.^
§ 358. If the person, who is a material witness for the defend-
ants, has been improperly joined with them in the suit, for the
purpose of excluding his testimony, the jury will be directed! to
find a separate verdict in his favor ; in which case, the cause being
at an end with respect to him, he may be admitted a witness for
the other defendants. But this can be allowed only where there
, is no evidence whatever against him, for then only does it appear
that he was improperly joined, through the artifice and fraud of
the plaintiff. But if there be any evidence against him, though,
in the judge's opinion, not enough for his conviction, he cannot
be admitted as a witness for his fellows, because his guilt or
innocence must wait the event of the verdict, the jury being the
sole judges of the fact.^ In what stage of the cause the party,
thus improperly joined, might be acquitted, and whether before
the close of the case on the part of the other defendants, was
formerly uncertain ; but it is now settled, that the application to
a judge, in the course of a cause, to direct a verdict for one or more
of several defendants in trespass, is strictly to his discretion ; and
that discretion is to be regulated, not merely by the fact that, at
the close of the plaintiff's case, no evidence appears to affect them,
against th8 other. Thorpe v. Barter, 5 i 2 Tidd's Pr. 895; Briggs v. Green-
M. G. & Sc. 675 ; 17 Law Journ. N. s. 113. Seld et al. 1 Sir. 610 ; 8 Mod. 217 ; 2 Ld.
And see Ballard v. Noaks, 2 Pike, 45. Raym. 1372, s. c; Phil. & Am. on Evid.
[Where one of two defendants in an action 53, note (3); 1 Phil. Evid. 52, n. (1);
of trover is defaulted, he is not a eompe- Bowman v. Noyes, 12 N. Hamp. R. 302.
tent witness on the trial for the other, on ^ 1 Gilb. l>id, hy Loift, p. 250 ; Brown
the ground of interest, even though called v. Howard, 14 Johns. 119, 122; Van l)eu-
to testify to matters not eonnected with sen v. Van Slyck, 15 Johns. 223. The
the question of damages ; because, if ad- admission of the witness, in all these cases,
missible at all, he is liable to be examined seems to rest in the discretion of the j ndge.
upon all matters pertinent to the issue on Brotherton v. Livingston, 3 Watts & Serg
trial. Gerrish v. Cummings, 4 Cush. 391 ; 334 ; [Castle v. BuUard, 23 How. 173.]
Chase «. Lovering, 7 Foster, 295.1
408
LAW OP EYIDENCB.
[pAET in
but by the probabilities whether any such will arise before the
whole evidence in the cause closes.^ The ordinary course, there-
fore, is to let the cause go on, to the end of the evidence.^ But
if, at the close of the plaintiff's case, there is one defendant
against whom no evidence has been given, and none is anticipated
with any probability, he instantly will be acquitted.^ The mere
fact of mentioning the party in the simul cum, in the declaration,
does not render him incompetent as a witness ; but if the plaintiff
can prove the person so named to be guilty of the trespass, and
party to the suit, which must be by producing the original process
against him, and proving an ineffectual endeavor to arrest him,
or that the process was lost, the defendant shall not have the
benefit of his testimony.*
§ 359. If the plaintiff, in trespass, has by mistake made one of
1 Sowell V. Champion, 6 Ad. & El. 407;
White V. Hill, 6 Ad. & El. 487, 491, n. s. ;
Commonwealth v. Eastman, 1 Cush. 189 ;
Over i: Blackstone, 8 Watts & Serg. 71 ;
Prettyman v. Dean, 2 Harringt. 494;
Brown v. Burnes, 8 Mis. 26.
2 6 Ad. & El. 491, N. a., per Ld. Den-
man.
8 Child V. Chamherlain, 6 C. & P. 213.
It is not easy to perceive why the same
principle should not be applied to actions
upon contract, where one of the defendants
pleads a matter in his own personal dis-
charge, sucli as infancy or bankruptcy,
and establishes his plea by a certificate, or
other aifirmative proof, which the plaintiff
does not pretend to gainsay or resist. See
Bate V. Russell, 1 Mood. & M. 332. Upon
Emmett v. Butler, 7 Taunt. 599, where it
was not allowed, Mr. Phillips very justly
observes, that the plea was not the com-
mon one of bankruptcy and certificate;
but that the plaintiffs had proved (under
the commission), and thereby made their
election ; and that where a plea is special,
and involves the consideration of many
facts, it is obvious that there would be
much inconvenience in splitting the case,
and taking separate verdicts ; but there
seems to be no such inconvenience where
the whole proof consists of the bankrupt's
certificate. Phil, & Am. on Evid. p. 29,
note (3) ; [Beasley v. Bradley, 2 Swan,
180 ; Cochran v. Amnion, 16 III. 316.1
* Bull. N. P. 286; 1 Gilb. Evid. by
LoSt, p. 251 ; Lloyd v. Williams, Cas.
temp. Hardw. 123; Cotton v. Luttrell, 1
Atk. 452. " These cases appear to have
proceeded upon the ground, that a co-
trespasser, who had originally been made
a party to the suit upon sufficient grounds,
ought not to come forward as a witness to
defeat the plaintiff, after he had prevented
the plaintiff from proceeding effectually
against him, by his own wrongful act in
eluding the process." Phil. & Am. onEv. '
p. 60, note (2). But see Stockham v.
Jones, 10 Johns. 21, contra. See also 1
Stark. Evid. 132. In Wakeley v. Hart, 6
Binn. 316, all the defendants, in trespass,
were arrested, but the plaintiff went to
issue with some of them only, and did not
rule the others to plead, nor take judg-
ment against them by default; and they
were held competent witnesses for the
other defendants. The learned chief jus-
tice placed the decision partly upon the
general ground, that they were not inter-
ested in the event of the suit ; citing and
approving the case of Stockham v. Jones,
supra. But he also laid equal stress upon
the fact, that the plaintiff might have con-
ducted his cause so as to have excluded
the witnesses, by laying them under a rule
to plead, and taking judgment by default.
In Purviance v. Dryden, 3 S. & R. 402,
and Gibbs v. Bryant, 1 Pick. 118, both of
which were actions upon contract, where
the process was not served as to one of the
persons named as defendant with the other,
it was held, that he was not a party to the
record, not being served with process, and
so was not incompetent as a witness on
that account. Neither of these cases,
therefore, except that of Stockham v.
Jones, touches the ground of public policy
for the prevention of fraud in cases of
tort, on which the rule in the text seems
to have been founded. Idea qumre. See
also Curtis v. Graham, 12 Mart. 289;
Heckert v. Eegely, 5 Watts & Serg. 333.
CHAP, n.] COMPETENCY OP WITNESSES. 409
his own intended witnesses a defendant, the court will, on motion,
give leave to omit him, and have his name stricken from the
record, even after issue joined.^ In criminal informations, the
same object is attained by entering a nolle prosequi, as to the party
intended to be examined ; the rule, that a plaintiif can in no case
examine a defendant, being enforced in criminal as well as in civil
cases.2
§ 360. If a material witness for a defendant in ejectment be also
made a defendant, he may let judgment go by default, and be
admitted as a witness for the other defendant. But if he plead,
thereby admitting himself tenant in possession, the court will not
afterwards, upon motion, strike out his name.^ But where he is
in possession of only a part of the premises, and consents to the
return of a verdict against him for as much as he is proved to
have in possession, Mr. Justice BuUer said, he could see no
reason why he should not be a witness for another defendant.*
§ 361. In chancery, parties to the record are subject to exami-
nation as witnesses, much more freely than at law. A plaintifiF
may obtain an order, as of course, to examine a defendant, and
a defendant a co-defendant, as a witness, tipon affidavit that he
is a material witness, and is not interested on the side of the
applicant, in the matter to which it is proposed to examine him ;
the order being made subject to all just exceptions.^ And it may
be obtained ex parte, as well after as before decree.^ If the answer
of the defendant has been replied to, the replication must be with-
drawn before the plauitiff can examine him. But a plaintiff can-
not be examined by a defendant, except by consent, unless he is
1 Bull. N. P. 285; Berrington d. Dor- See also Eeeves v. Matthews, 17 Geo.
mer v. Fortcscue, Cas. temp. Hardw. 162, 449.]
163. 6 2 Daniel's Chan. Pr. 1035, note (Per-
2 Ibid. kins's edit.) ; Id. 1043; Ashton k. Parker,
' Ibid. 14 Sim. 632. But where there are several
* Bull. N. P. 286. But where the same defendants, one of whom alone has an in-
jury are also to assess damages against terest in defeating tlie plaintiff's claim, the
the witness, it seems he is not admissible, evidence of the defendant so interested.
See Mash v. Smith, 1 C. & P. 577; supra, though taken in behalf of a co-detendant,
§ 356. [Where the court in its discretion is held inadmissible. Clark v. Wyburn,
orders several actions, depending on the 12 Jur. 613. It has been held in Massa-
same evidence, to be tried together, the chusetts, that the answer of one defendant,
testimony of a witness who is competent so far as it is responsive to the bill, may
in one of the actions is not to be excluded be read by another defendant, as evidence
because it is inadmissible in the others, in his own favor. Mills v. Gore, 20 Pick,
and may possibly have some effect on the 28.
decision of them ; and the jury should be " Steed v. Oliver, 11 Jur. 365; Paris v.
directed to confine the testimony of the Hughes, 1 Keen, 1 ; Van v. CorpR, 3 My.
witness to the case in which he is compe- & K. 269.
tent. Kimball v. Thompson, 4 Cush. 441.
VOL. I. 35
410 LAW OP EVIDENCE. [PARl III,
merely a trustee, or has no beneficial interest in tlie matter in
question.! j^^qj. gan a co-plaintiff be examined by a plamtiif, with-
out the consent of the defendant. The course in the latter of such
cases is, to strike out his name as plaintiff, and make him a de-
fendant; and, in the former, to file a cross-bill.^
§ 362. The principles which govern in the admission or exclu-
sion of parties as witnesses in civil cases art, in general appli-
cable, with the like force, to criminal prosecutions, except so far as
they are affected by particular legislation, or by considerations of
public policy. In these cases, the state is the party prosecuting,
though the process is usually, and in some cases always, set in
motion by a private individual, commonly styled the prosecutor.
In general, this individual has no direct and certain interest in
the event of the prosecution ; and therefore he is an admissible
witness. Formerly, indeed, it was supposed that he was incom-
petent, by reason of an indirect interest, arising from the use of
the record of conviction as evidence in his favor in a civil suit ;
and tliis opinion was retained down to a late period, as applicable
to cases of forgery, and especially to indictments for perjury.
But it is now well settled, as will hereafter more particularly be
shown,^ that the record in a criminal prosecution cannot be used
as evidence in a civil suit, either at law or in equity, except to
prove the mere fact of the adjudication, or a judicial confession
of guilt by the party indicted.* The prosecutor, therefore, is not
1 The reason of this rule has often been Johns. Ch. 240 ; 2 Daniel's Ch. Pr. 455,
called in question ; and the opinion of 456 ; Piddock v. Brown, 3 P. W. 288 ;
many of the profession is inclined in favor Murray v. Shadwell, 2 V. & B. 401 ;
of making the right of examination of par- Hoffni. Master in Chanc. 18, 19; Cotton
ties in equity reciprocal, without the in- v. LuttreH, 1 Atk. 451.
tervention of a cross-bill. See 1 Smith's ' Infra, § 537.
Ch. Pr. 459, n. (1) ; Report on Chancery " Rex v. Boston, 4 East, 572; Bartlett
Practice, App. p. 153, Q. 49. Sir Samuel v. Pickersgill, Id. 577, n.; Gibson v. Mo-
RomiUy was in favor of such change in Carty, Cas. temp. Hardw. 311 ; Richard-
the practice. Id. p. 54, Q. 266 ; 1 Hoff- son v. Williams, 12 Mod. 319 ; Reg. v.
man's Ch. Pr. 345. In some of tlie United Moreau, 36 Leg. Obs. 69; 11 Ad. & El.
States, tliis has already been done by 1028; iji/i-ci, § 537 The exception which
statute. See New York Code of Practice, had grown up in the case of forgery was
§§ 390, 395, 390 (Blatchford's edit.) ; Ohio, admitted to be an anomaly in the law, in
Rev. St. 1841, ch. 87, § 26 ; Missouri, Rev. 4 East, 582, per Lord Ellenborough, and
St. 1845, ch. 137, art. 2, §§ 14, 15 ; New in 4 B. & Aid. 210, per Abbott, C. J. ; and
Jersei/, Rev. St. 1846, tit. 23, ch. 1, § 40; was finally removed by the declaratory
Texas, Hartley's Dig. arts. 735, 739; Wis- act, for such in effect it certainly is, of 9
consin, Rev. St. 1849, ch. 84, § 30 ; Cali- Geo. IV., c. 32, § 2. In this country,
fornia, Rev. St. 1850, ch. 142, § 296-303. with the exception of a few early cases,
" 1 Smith's Ch. Pr. 343, 344; 1 Hoff- the party to the forged insti-ument has
man's Ch. Pr. 485-488. See furtlier, been held admissible as a witness, on the
Greslcy on Evid. 242, 243, 244 ; 2 Mad. general principles of tlie criminal law.
Chan. 415, 416 ; Neilson v. McDonald, 0 See Commonwealth v. Snell, 3 Mass. 82 ;
Jolms. Ch. 201 ; Souverbye v. Arden, 1 The People v. Dean, 6 Cowen, 27 ; Eurber
CHAP. II.] COMPETENCY OP WITNESSES. 'Ill
incompetenl on the ground that he is a party to the record ; but
■whether any interest which he may have in the conviction of the
offender, is sufficient to render him incompetent to testify, will be
considered more appropriately under the head of incompetency,
from interest.''
§ 363. In regard to defendants in criminal eases, if the state
would call one of them, as a witness against others in the same
indictment, this can be done only by discharging him from the
record; as, by the entry of a nolle prosequi;^ or, by an order for
his dismissal and discharge, where he has pleaded in abatement
as to his own person, and the plea is not answered ; ^ or, by a
verdict of .acquittal, where no evidence, or not sufficient evidence,
has been adduced against him. In the former case, where there
is no proof, he is entitled to the verdict ; and it may also be ren-
dered at the request of the other defendants, who may then call
him as a witness for themselves, as in civil cases. In the latter,
where there is some evidence against him, but it is deemed in-
sufficient, a separate verdict of acquittal may be entered, at the
instance of the prosecuting officer, who may then call him as
a witness against the others.* On the same principle, where two
were indicted for an assault, and one submitted and was fined,
and paid the fine, and the other pleaded " not guilty ; " the former
was admitted as a competent witness for the latter, because as to
the witness the matter was at an cnd.^ But the matter is not
considered as at an end, so as to render one defendant a com-
petent witness for another, by any thing short of- a final judgment,
or a plea of guilty.^ Therefore, where two were jointly indicted
for uttering a forged note, and the trial of one of them was post-
poned, it was held, that he could not be called as a witness for
the other.'^ So, where two, being jointly indicted for an assault,
pleaded separately " not guilty," and elected to bo tried separately,
V. Hilliard, 2 N. Hamp. 480 ; Eespublica v. v. Lyons, 9 C. & P. 555 ; liegina ;•. "WU-
Ross, 2 Uall. 230 ; TJie State v. Foster, 3 .Uanis, 8 C. & P. 283 ; supra, § 358 ; Coin-
McCortl, 442. monwealtli v. Eastman, 1 Cusli. 18'J.
1 /nfra, § 412-414. '^ Kegina v. Hincks, ,1 Denis. C. C. 84.
2 Bali, N. P. 285; Cas. temp. Hardw. nVliero two del'endants were jointly in-
163. dieted for an assault, and one was detault-
* Eex V. Sherman, Cas. temp. Hardw. ed on Ids recogtnzanee, his wHe was held
308. to be a competent witness for the other
* Rex V. Rowland, Ry. &M. 401 ; Rex defendant. State v. Worthing, 31 Slaine,
V. Mutineers of tlie " Bounty," cited arg. 62,]
1 East, 312, 313. ' Commonwealth v. Marsh, 10 Pick.
s Rex V. Eletcher, 1 Stra. 633 ; Regina 57.
412 LAW OP EVIDENCE. [PAET IH.
it was held, that the one tried first could not call the other as
a witness for him.i
§ 364. Before we dismiss the subject of parties, it may be proper
to take notice of the case, where the facts are personally known
by the judge before whom the cause is tried. And whatever differ-
ence of opinion may once have existed on this point, it seems now
to be agreed, that the same person cannot be both witness and
judge, in a cause which is on trial before him. If he is the sole
judge, he cannot be sworn ; and if he sits with others, he still can
hardly be deemed capable of impartially deciding on the admissi-
bility of his own testimony, or of weighing it against that of
another.^ Whether his knowledge of common notoriety is admis-
sible proof of that fact is not so clearly agreed.^ On grounds of
public interest and convenience, a judge cannot be called as a wit-
ness to testify to what took place before him in the trial of another
cause ; * though he may testify to foreign and collateral matters,
which happened in his presence while the trial was pending, or
after it was ended.^ In regard to attorneys, it has in England
been held a very objectionable proceeding on the part of an at-
torney to give evidence, when acting as advocate in the cause ;
and a sufficient ground for a new trial. ^ But in the United States
1 The People v. Bill, 10 Johns. 95 ; Tait on Evid. 432 ; Stair's Inst, book ir.
[Mclntyre v. People, 5 Selden, 38. J In tit. 45, 4 ; Erskine's Inst, book iv. tit. 2,
Ilex V. Lafone, 5 Esp. 154, where one de- 33. If his presence on the bench is neces-
fen'dant suffered judgment by default, sary to the legal constitution of the court,
Lord EUenborough held him incompetent he cannot be sworn as a witness, even by
to testify for the others ; apparently on consent ; and if it is not, and liis testimony
the ground, that there was a community of is necessary in the cause on trial, he
guilt, and that the offence of one was the should leave the bench until the trial is fin-
offence of all. But no authority was cited ished. Morss v. Morss, 4 Am. Law Eep. 611,
in the case, and the decision is at variance n. s. This prmciple has not been extend-
with the general doctrine in cases of tort, ed to jurors. Tliough the jury may use
The reason given, moreover, assumes the their general knowledge on the subjeji of
very point in dispute, namely, whether any question before them ; yet, if any
there was any guilt at all. The indict- juror has a particular knowledge, as to
ment was for a misdemeanor, in obstruct- which he can testify, he must be sworn as
Ing a revenue ofRcer in the execution of a witness. Rex v. Rosser, 7 C. & P. 648 ;
his duty. See 1 Phil. Evid. 68. But Stones v. Byron, 4 Dowl. & L. 3J3. See
where two were jointly indicted for an infra, § 386, note.
assault and battery, and one of them, on ^ Lord Stair and Mr. Erskine seem to
motion, was tried first, the wife of the' have been of opinion that it \v:is, "unle=-i
other was held a competent witness in Ills it be overruled by pregnant contrary evi-
favor. Moffit v. The State, 2 Humph. 99. dence." But Mr. Glassford and Mr. Tait
And see Jones v. The State, 1 Kelly, 610 ; are of the contrary opinion. See the places
The Commonwealth v. Manson, 2 Ashra. cited in the preceding note.
31; supra, § 335, note; The State v. * Regina d. Gazard, 8 C. & P. 595, por
"Worthing, 1 Redingt. (31 Maine) 62. Patteson, J.
2 Ross V. Buhler, 2 Martin, N. S. 313. ^ Rgx v. E. of Thanet, 27 Howell's St.
So is tlie law of Spain, Partid. 3, tit. 16, 1. Tr. 847, 848. See supra, § 252, as to the
19 ; 1 Moreau & Carlton's Tr. p. 200 ; and admissibilijy of jurors.
of Scotland, Glassford on Evid. p. 602; » Dunn v. Packwood, 11 Jur. 242, a.
CHAP. 11.] COMPETENCY OP WITNESSES. 413
no case has been found to proceed to that extent ; and the fact is
hardly ever known to occur.
§ 365. We proceed now to consider the second class of persons
incompetent to testify as witnesses, namely, that of persons defi-
cient IN UNDERSTANDING. Wc havc already seen ^ that one of the
main securities, which the law has provided for the purity and
truth of oral evidence, is, that it be delivered under the sanction of
an oath ; and that this is none other than a solemn invocation
of the Supreme Being, as the Omniscient Judge. The purpose of
the law being to lay hold on the conscience of the witness by this
religious solemnity, it is obvious, that persons incapable of com-
prehending the nature and obligation of an oath ought not to be
admitted as witnesses. The repetition of the words of an oath
would, in their case, be but an unmeaning formality. It makes
no difference from what cause this defect of understanding may
have arisen ; nor whether it be temporary g,nd curable, or perma-
nent ; whether the party be hopelessly an idiot, or maniac, or only
occasionally insane, as a lunatic ; or be intoxicated ; or whether
the defect arises from mere imipaturity of intellect, as in the case
of children. While the deficiency of understanding exists, be the
cause of what nature soever, the person is not admissible to be
sworn as a witness. But if the cause be temporary, and a lucid
interval should occur, or a cure be effected, the competency also
is restored.^
' Supra, § 327. times existing upon that subject, it is er-
^ 6 Com. Dig. 351, 352, Testmoigtie, roneous to suppose tlie mind of sueh a
A. 1 ; Livingston v. Kiersted, 10 Johns, person really sound on other subjects ;
362 ; Evans v. Hettioh, 7 Wheat. 453, and that therefore the will of such a per-
470; White's case, 2 Leach, Cr. Cas. 482; son, though apparently ever so rational
Tait on Evid. pp. 342, 343. The fact of and proper, was void. Waring v. Waring,
want of understanding is to be proved by 12 Jur. 947, Priv. C. Here, the power of
the objecting party, by testimony aliunde. ' perceiving facts is sound, but the faculty
Eobinson v. Dana, 16 Verm. 474. See, as of comparing and of judging is impaired,
to intoxication, Hartford v. Palmer, 16 But where, in a trial for manslaughter, a
Johns. 143 ; Gebhart v. Skinner, 15 S. & lunatic patient was admitted as a witness,
E. 235 ; Heiuec. ad Pandect. Pars. 3, who had been confined in a lunatic asy-
§ 14. Whether a monomaniac is a compe- lum, and who labored under the delusion,
tent witness is a point not known to have both at the time of the transaction and of
been directly decided ; and upon which the trial, that he was possessed by twenty
text-writers differ in opinion. Sir. Eoscoe thousand spirits, but whom the medical
deems it the safest rule to exclude their witness believed to be capable of giving
testimony. Eosc. Crim. Evid. p. 128. an account of any transaction that hap-
Mr. Best considers this " hard measure." pened before his eyes, and who appeared
Best, Princ. Evid. p. 168. In a recent to understand the obligation of an oath,
case before the Privy Council, where a and to believe in future rewards and pun-
will was contested on the ground of inca- ishments; — it was held, that his testi-
lacity in the mind of the testator, it was mony was properly received. And that
g;
leld, that if the mind is unsound on one where a person, under an insane delusion,
■ulgect. and this unsoundness is at aU is offered as a witness, it is for the judge
36*
414 LAW OP EVIDENCE. [PART III
§ 366. In regard to persons deaf and dumb from their birth, it
has been said that, in presumption of law, they are idiots. And
though this presumption has not now tlie same degree of force
which was formerly given to it, that unfortunate class of persons
being found by the light of modern science, to be much more
intelligent in general, and susceptible of far higher culture, than
was once supposed ; yet still the presumption is so far operative,
as to devolve the burden of proof on the party adducing the wit-
ness, to show that he is a person of sufficient understanding.
This being done, a deaf mute may be sworn and give evidence,
by means of an interpreter.^ If he is able to communicate hig
ideas perfectly by writing, he will be required to adopt that, as the
more satisfactory, and therefore the better method ;2 but if his
knowledge of that method is imperfect, he will be permitted to
testify by means of signs.^ *
§ 367. But in respect to children, there is no precise age within
which they are absolutely excluded, on the presumption that they
have not sufficient understanding. At the age of fourteen, every
person is presumed to have common discretion and understanding,
until the contrary appears ; but under that ag6 it is not so pre-
sumed ; and therefore inquiry is made as to the degree of under-
standing, which the child offered as a witness may possess ; and
if he appears to have sufficient natural intelligence, and to have
been so instructed as to comprehend the nature and effect of an
oath, he is admitted to testify, whatever his age may be.* This
examination of the child, in order to ascertain his capacity to bn
sworn, is made by the judge at his discretion ; and though, as has
been just said, no age has been precisely fixed, within which a
child shall be conclusively presumed incapable, yet, in one case
a learned judge promptly rejected the dying declarations of a child
of four years of age, observing, that it was quite impossible that
at the time, to decide upon his compe- confiteri nequeat, neo inficiari, emendet
tency as a witness, and for the jury to pater scelera ipsius." Vid. Leges Barba-
judge of the credibility of his evidence, ror. Antiq. vol. 4, p. 249 ; Ancient Laws
Reg. V. Hill, 15 Jur. 470; 5 Eng. Law & and Statutes of England, vol. 1, p. 71.
Eq. Rep. 547; 5 Cox, Cr. Cas. 259; [Hoi- ^ Morrison v. Lennard, 3 C. & P. 127.
comb V. Holcomb, 28 Conn. 177.] ^ The State v. l)e Wolf, 8 Conn. 93 ;
1 Rustin's case, 1 Leach, Cr. Cas. 455 ; Commonwealth v. Hill, 14 Mass. 207;
Tait on Evid. p. 343 ; 1 Russ. on Crimes, Snyder !i. Nations, 4 Blackf. 29a.
p. 7 ; 1 Hale, V. C. 34. Lord Hale refers, ■• McNally s Evid. p. 149, (;h. 11 ; Bull,
for authority as to the ancient jjresump- N. P. 293 ; 1 Hale, P. C. 302 ; 2 Russ. oi.
tion, to theLaws of King Alfred, c. 14, Crimes, p. 6€0; Jackson v. Gridley, 1'
which is in these words : — "Si quis mu- Johns. 98.
tus vcl Burdus natus sit, ut peccata sua
CHAP. II.J COMPETENCY OP WITNESSES, 415
she, however precocious her mind, could hare had that idea of
a future state, which is necessary to make such declarations ad-
missible.^ On the other hand, it is not unusual to receive the
testimony of children under nine, and sometimes even under
seven years of age, if they appear to be of sufficient understand-
ing ; ^ and it has been admitted even at the age of five years .^ If
the child, being a principal witness, appears not yet sufficiently
instructed in the nature of an oath, the court will, in its discretion,
pxit off the trial, that this may be done.* But whether the trial
ought to be put off for the purpose of instructing an adult witness
has been doubted.^
§ 368. The third class of persons incompetent to testify as
witnesses consists of those who are insensible to the obligations
OP AN OATH, from defect of religious sentiment and belief. The
very nature of an oath, it being a religious and most solemn appeal
to God, as the Judge of all men, presupposes that the witness
believes in the existence of an omniscient Supreme Being, who is
" the rewarder of truth and avenger of falsehood ; " ^ and that, by
such a formal appeal, the conscience of the witness is affected.
Without this belief, the person cannot be subject to that sanction,
which the law deems an indispensable test of truth.^ It is not
1 Eex V. Pike, 3 C. & P. 598; The understanding on the subject, her evi-
People V. McNair, 21 Wend. 608. Neitlier dence was rejected. Eex v. Williams, 7
can the declarations of such a child, if C. & P. 320. In a, more recent case,
living, be received in evidence. Rex v. where the principal witness for the prose-
Brasier, 1 East, P. C. 443. cution was a female child, of six years
2 1 East, P. C. 442 ; Commonwealth old, wholly ignorant of the nature of an
V. Hutchinson, 10 Mass. 225 ; McNally's oath, a postponement of the trial was
Evid. p. 154 ; The State v. Whittier, 8 moved for, that she might be instructed
Shepl. 341. on that subject; but Pollock, C. B., re-
* Rex 0. Brasier, 1 Leach, Cr. Cas. fused the motion as tending to endanger
237 ; Bull. N. P. 293, s.-c. ; 1 East, P. C. the safety of public justice ; observing
443, s. c. that more probably would be lost in mem-
* McNally's Evid. p. 154 ; Rex v. ory, tlian would be gained in point of re-
White, 2 Leach, C. Cas. 482, note (a) ; ligious education ; adding, however, that
Eex V. Wade, 1 Mood. Cr. Cas. 86. But in cases where the intellect was suffi-
in a late case, before Mr. Justice Patteson, ciently matured, but the education only
the learned judge said, that he must be had been neglected, a postponement might
satisfied that the child felt the binding be very proper. Eegina v. Nicholas, 2 0.
obligation of an oath, from the general & K. 246.
course of her religious education ; and * gee Eex v. Wade, 1 Mood. Cr. Cao.
that the effect of the oath upon the con- 86.
science should arise from religious feel- ^ Per Ld. Hardwicke, 1 Atk. 48. The
Ings of a permanent nature, and not merely opinions of the earlier as well as later ju-
from instructions, confined to the nature rists, concerning the nature and obliga-
of an oath, recently communicated, for the tion of an oath, are quoted and discussed
purpose of the particular trial. And, much at large, in Omichund v. Barker, 1
therefore, the witness having been visited Atk. 21, and in Tyler on Oaths, passim,
but twice by a clergyman, who had given to which the learned reader is referred,
her some instructions as to the nature of '1 Stark. Evid. 22. " The law is wise
an oath, but still she had but an imperfect in requiring the highest attainable sano-
416 LAW OF EVIDENCE. [PAET m.
sufficient, that a witness believes himself bound to speak the truth
from a regard to character, or to the common interests of society,
or from fear of the punishment which the law inflicts upon persons
guilty of perjury. Such motives have indeed their influence, but
they are not considered as aifording a sufficient safeguard for the
strict observance of truth. Our law, in common with the law of
most civilized countries, requires the additional security afforded
by the religious sanction implied in an oath ; and, as a necessary
conseqiience, rejects all witnesses, who are incapable of giving
this security.^ Atheists, therefore, and all infidels, that is, those
who profess no religion that can bind their consciences to speak
truth, are rejected as incompetent to testify as witnesses.^
§ 369. As to the nature and degree of religious faith required in
a witness, the rule of law, as at present understood, seems to be
this, that the person is competent to testify, if he believes in the
being of God, and a future state of rewards and punishments ;
that is, that Divine punishment will be the certain consequence
of perjury. It may be considered as now generally settled, in this
country, that it is not material, whether the witness believes that
the punishment will be inflicted in this world, or in the next. It
is enough, if he has the religious sense of accountability to the
Omniscient Being, who is invoked by an oath.^
tion for the truth of testimony given ; and i 1 Phil. Evid. 10 (9th edit.),
is consistent in rejecting aU witnesses in- ^ Bull. N. P. 292; 1 Stark. Evid. 22;
capable of feeling this sanction, or of re- 1 Atk. 40, 45 ; 1 Phil. Evid. 10 (9th edit.),
ceiving this test ; whether this incapacity The objection of incompetency, from the
arises from the imbecility of their under- want of belief in the existence of God, is
standing, or from its perversity. It does abolished, as it seems, in Michigan, by
not impute guilt or blame to either. If the force of the statute which enacts that no
witness is evidently intoxicated, he is not person shall be deemed incompetent as a
allowed to be sworn; because, for the witness "on account of his opinions on
time being, he is evidently incapable of the subject of religion." Rev. Stat. 1846,
feeUng the force and obligation of an oath. oh. 102, §96. So in Maine, Rev. Stat
The non compos, and the infant of tender ch. 82. And in Wisconsin, Const. Art. X
age, are rejected for the same reason, but § 18. And in Missouri, Rev. Stat. 1845,
without blame. The atheist is also re- ch. 186, § 21. And in Mass. Gen. Stat
jeeted, because he, too, is incapable of ch. 131, § 12. In some other states, it is
realizing the obUgation of an oath, in con- made sufficient, by statute, if the witness
sequence of his unbelief. The law looks believes in the existence of a Supreme Be
only to tlie fact of incapacity, not to the ing. Connecticut, Rev. Stat. 1849, tit. ],
cause, or the manner of avowal. Whether §140; New Hampshire, Rev. Stat. 1842,
it be calmly insinuated with the elegance ch. 188, § 9. In others, it is requisite that
of Gibbon, or roared forth in the disgust- the witness sliould beheve in the exist-
ing blasphemies of Paine ; still it is athe- ence of a Supreme Being, who will punish
ism ; and to require the mere formality of false swearing. New York, Rev. Stat.
an oath, from one who avowedly despises, vol. 2, p. 505 (3d edit.) ; Missouri, Rev.
or is incapable of feeling, its pecuUar sane- Stat. 1835, p. 419.
tion, would be but a mockery of justice." ' The proper test of the competency of
1 Law Reporter, pp. 346, 847. a witness on the score of a religious be-
CHAP. 11.]
COMPETENCY OP WITNESSES.
417
§ 370. It should here be observed, that defect of religious faith
is never f resumed. On the contrary, the law presumes that every
man brought up in a Christian land, where God is generally
acknowledged, does believe in him, and fear him. The charity
of its judgment is extended alike to all. The burden of proof
is not on the party adducing the witness, to prove that he is a
believer ; but it is on the objecting party, to prove that he is not.
Neither does the law presume that any man is a hypocrite. On
the contrary, it presumes him to be what he professes himself to
be, .whether' atheist, or Christian ; and the state of a man's opin-
ions, as well as the sanity of his mind, being once proved is, as
we have already seen,i presumed to continue unchanged, until the
contrary is shown. The state of Ms religious belief, at the time
he is offered as a witness, is a fact to be ascertained ; and this
is presumed to be the common faith of the country, unless the
objector can prove that it is not. The ordinary mode of showing
this is by evidence of his declarations, previously made to others ;
the person himself not being interrogated ; ^ for the object of
lief was settled, upon great consideration,
in the case of Omichund v. Barker, Willes,
645 ; 1 Atk. 21 s. c. to be the belief of a
God, and that he will reward and punish
^s according to our deserts. This rule
was recognized in Butts v. Swartwood, 2
Cowen, 431 ; The People v. Matteson, 2
Cowen, 433, 573, note ; and by Story, J.,
in Wakefield v. Ross, 5 Mason, 18; 9
Dane's Abr. 317, S. P. ; and see Brock v.
Milligan, 1 Wilcox, 125; Arnold v. Ar-
nold, 13 Verm. 362. Whether any beUef
in a future state of existence is necessary,
provided accountability to God in this life
is acknowledged, is not perfectly clear.
In Commonwealth v. Bacheler, 4 Am. Ju-
rist, 81, Thacher, J., seemed to think it
was. But in Hunscom v. Hunscom, 14
Mass., 184, the court held, that mere dis-
belief in a future existence went only to
the credibility. This degree of disbelief
is not inconsistent with the feith required
in Omichund v. Barker. The only case,
clearly to the contrary, is Atwood v. Wel-
ton, 7 Conn. 66. In Curtis v. Strong, 4 Day,
51, the witness did not believe in the obli-
gation of an oath ; and in Jackson v. Grid-
ley, 18 Johns. 98, he was a mere atheist,
without any sense of religion whatever.
All that was said, in these two cases,
beyond the point in judgment, was extra-
judicial. In Maine, a belief in the exist-
ence of the Supreme Being was rendered
sufficient, by Stat. 1833, ch. 58, without
any reference to rewards or punishments.
Smith V. CoflSn, 6 Shepl. 157 ; but even
this seems to be no longer required. See
swpro, § 368, note. See further, the Peo-
ple V. McGarren, 17 Wend. 460 ; Cubbison
V. McCreary, 2 Watts & Serg. 262; Brock
V. Milligan, 10 Ohio, 121; Thurston v.
Whitney, 2 Law Rep. 18, n. s. ; [Blair ».
Seaver, 26 Penn. St. R. 274; Bennett
V. State, 1 Swann, 44.]
1 Supra, § 42. The State v. Stinson, 7
Law Reporter, 383.
^ [The question whether a witness is,
or is not an atheist, and so an incompetent
witness, is a question of fact for the pre-
siding judge alone, and his decision is not
open to exception. Commonwealth v.
Hills, 10 Cush. 530, 532. The want of
such religious belief must be established
by other means than the examination of
the witness upon the stand. He is not to
be questioned as to his religious belief,
nor required to divulge his opinion upon
that subject in answer to questions put to
him while under examination. If he is
to be set aside for want of such religious
belief, the fact is to be shown by other
witnesses, and by evidence of his pre-
viously expressed opinions voluntarily
made known to others. By Shaw, C. J.,
in Commonwealth v. Smith, 2 Gray, 516.
In this case the witness had testified in
chief, and on cross-examination was asked
if he believed in the existence of a God,
and replied that he did. Upon this the
court interposed and refuse'l to allow
418
LAW OF ETIDENCB.
[PABT III.
interrogating a witness, in these cases, before he is sworn, is not
to obtain the knowledge of otlier facts, but to ascertain from his
answers, the extent of his capacity, and whether he has sufficient
understanding to be sworn.^
counsel to put further questions in regard
to the religious belief of the witness, and
the court say : " Aside, therefore, of the
propriety of allowing further inquiry, after
the witness had answered affirmatively the
general question of his belief in the exist-
enoe of God, in the opinion of the court,
the whole inquiry of the witness upon this
matter was irregular and unauthorized."]
1 Swift's Evid. 48; Smith v. Coffin,
6 Shepl. 157. It has been questioned,
whether the evidence of his declarations
ought not to be confined to a period shortly
anterior to the time of proving them, so
that no change of opinion might be pre-
sumed. Brock V. Milligan, 1 Wilcox, 126,
per Wood, J.
" The witness himself is never ques-
tioned in modern practice, as to his religious
belief, though formerly it was otherwise.
(1 Swift's Dig. 739; 5 Mason, 19; Ameri-
can Jurist, vol. 4, p. 79, note.) It is not
allowed even after he has been sworn.
(The Queen's case, 2 B. & B. 284.) Not
because it is a question tending to disgrace
him, but because it would be a personal
scrutiny into the state of his faith and
conscience, foreign to the spirit of our
institutions. No man is obliged to avow
Ms belief; but if he voluntarily does avow
it, there is no reason why the avowal
should not be proved, like any other fact.
The truth and sincerity of the avowal, and
the continuance of the belief thus avowed,
are presumed, and very justly too, till
they are disproved. If his opinions have
been subsequently changed, this change
will generally, if not always, be provable
in the same mode. (Atwood v. Welton,
7 Conn. 66 ; Curtis v. Strong, 4 Day, 51 ;
Swift's Evid. 48-50 ; Scott v. Hooper, 14
Verm. 535; Mr. Christian's note to 3 Bl.
Comm. 369; 1 Phil. Evid. 18; Common-
wealth V. Bachelor, 4 Am. Jur. 79, note.)
If the change of opinion is very recent,
this furnishes no good ground to admit
the witness himself to declare it ; because
of the greater inconvenience which would
result from tlius opening a door to fraud,
than from adhering to the rule requiring
other evidence of tUs feet. The old cases,
in which the witness himself was ques-
tioned as to his beUef, have on this point
been overruled. See Christian's note to 3
Bl. Comm. [3691 note (30). The law,
therefore, is not reduced to any absurdity
Vfi this matter. It exercises no iuciuisito-
rial power ; neither does it resort to sec-
ondary or hearsay evidence. If the wit-
ness is objected to, it asks third persons
to testify, whether he has declared liis
belief in God, and in a future state of re-
wards and punishments, &c. Of this fkct
they are as good witnesses as he could be;
and the testimony is primary and direct.
It should further be noticed, that the ques-
tion, whether a person, about to be sworn,
is an atheist or not, can never be raised
by any one but an adverse party. No
stranger or a volunteer has a right to ob-
ject. There must, in every instance, be
a suit between two or more parties, one
of whom offers the person in question, as
a competent witness. The presumption
of law, that every citizen is a beUever in
the common religion of the country, holds
good until it is disproved ; and it would be
contrary to all rule to allow any one, not
party to the suit, to thrust in his objec-
tions to the course pursued by the liti-
gants. This rule and uniform course of
proceeding shows how much of the mor-
bid sympathy expressed for the atheist is
wasted. Tor there is nothing to prevent
him from taking any oath of office ; nor
from swearing to a complaint before a
magistrate; nor from making oath to
his answer in chancery. In this last
case, indeed, he could not be objected
to, for another reason, namely, that the
plaintiff, in his bill, requests the court
to require him to answer upon his oath.
In aU these, and many other similar
cases, there is no person authorized to
raise an objection. Neither is the ques-
tion permitted to be raised against the
atheist, where he himself is the adverse
party, and offers his own oath, in the
ordinary course of proceeding. If he
would make affidavit, in his own cause,
to the absence of a witness, or to hold to
bail, or to the truth of a plea in abatement,
or to the loss of a paper, or to the genuine-
ness of his books of account, or to his fears
of bodily harm from one against whom he
requests surety of the peace, or would
take the poor debtor's oath ; in these and
the like cases the uniform course is to re-
ceive his oath like any other person's.
The law, in such cases, does not know
that he is an atheist; that is, it never al-
lows the objection of infidelity to be made
against any man, seeking his own right*
in a court of justice ; and it conclusivelj
CHAP, n.] COMPETENCY OP WITNESSES. 419
§ 371. It may be added, in this place, that all witnesses are to
be sworn according to the peculiar ceremonies of their own reli-
gion, or in such manner as they may deem binding on their own
consciences. If the witness is not of the Christian religion, the
court will inquire as to the form in which an oath is administered
in his own country, or among those of his own faith, and will
impose it in that form. And if, being a Christian, he has con-
scientious scruples against taking an oath in the usual form, lie
will be allowed to make a solemn religious asseveration, involving
a like appeal to God for the truth of his testimony, in any mode
which he shall declare to be binding on his conscience.^ The
court, in ascertaining whether the form in which the oath is
administered is binding on the conscience of the witness, may
inqiiire of the witness himself; and the proper time for makmg
this inquiry is before he is sworn.^ But if the witness, without
making any objection, takes the oath in the usual form, he may
be afterwards asked, whether he thinks the oath binding on his
conscience ; but it is unnecessary and irrelevant to ask him, if he
considers any other form of oath more binding, and therefore
such question cannot be asked.^ If a witness, without objecting,
is sworn in the usual mode, but being of a different faith, the oath
was not in a form affecting his conscience, as if, being a Jew, he
was sworn on the Grospels, he is still punishable for perjury, if
lie swears falsely.*
and absolutely presumes that, so far as re- severatio religiosa, satis patet jusjurandum
ligious belief is concerned, all persons are attemperandum esse cujusque religioni."
capable of an oath, of whom it requires Heineo. ad Pand. pars 3, §§ 13, 15.
one, as the condition of its protection, 6r its " Quodcunque nomen dederis, id utique.
aid ; probably deeming it a less evil, that constat, omne jusjurandum proficiscl ex
the solemnity of an oath should, in few fide et persuasione jurantis ; et inutile
instances, be mocked by those who feel esse, nisi quis credat Deum, quem testem
not its force and meaning, than that a citi- adrocat, perjurii sui idoneum esse vendi-
zen should, in any case, be deprived of the cem. Id autem credat, qui jurat per Deum
benefit and protection of the law, on the suum, per sacra sua, et ex sua ipsius animi
ground of his religious behef The state religlone," &c. Bynkers. Obs. Jur. Bom.
of his faith is not inquired into, where his lib. 6, cap. 2.
own rights are concerned. He is only ^ By Stat. 1 & 2 Vict. c. 105, an oath
prevented from being made the instru- is binding, in whatever form, if adminis-
1' lent of taking away those of others." 1 tered in such form and with such cere-
Law Reporter, pp. 347, 348. monies as the person may declare binding.
1 Omichund v. Barker, 1 Atk. 21, 46 ; But the doctrine itself is conceived to be
Willes, 538, 545-549, s. c. ; Ramkissen- common law.
seat V. Barker, 1 Atk. 19 ; Atcheson v. ^ xhe Queen's case, 2 B. & B. 284.
Everitt, Cowp. 389, 390; BuU. N. P. 292; * Sells v. Hoare, 3 B. & B. 232; The
1 Phil. Bvid. 9, 10, 11 ; 1 Stark. Evid. 22, State v. Whisonhurst, 2 Hawks, 458. But
23 ; Rex v. Morgan, 1 Leach, Cr. Cas. 64 ; the adverse party cannot, for that cause,
Vail V. Nickerson, 6 Mass. 262; Edmonds have a new trial. Whether he may, if a
V. Rowe, Ry. & M. 77 ; Commonwealth v. witness on the other side testified without
BuzzeU. 16 Pick 153. " Quumque sit ad- having been sworn at all, quaere. If the
420 LAW OF EVIDENCE. [PAET in.
§ 872. Under this general head of exclusion because of insensi-
bility to the obligation of an oath, may be ranked the case of
persons infamous; that is, persons who, whatever may be their
professed belief, have been guilty of those heinous crimes which
men generally are not found to commit, unless when so depraved
as to be unworthy of credit for truth. The basis of the rule seems
to be, that such a person is morally too corrupt to be trusted to
testify ; so reckless of the distinction between truth and falsehood,
and insensible to the restraining force of an oath, as to render it
extremely improbable that he will speak the truth at all. Of such
a person Chief Baron Gilbert remarks, that the credit of his oath
is overbalanced by the stain of his iniquity .^ The party, however,
■ must have been legally adjudged guilty of the crime. If he is
stigmatized by public fame only, and not by the censure of law, it
aifects the credit of his testimony, but not his admissibility as
a witness.^ The record, therefore, is required as the sole evidence
of his guilt ; no other proof being admitted of the crime ; not only
because of the gross injustice of trying the guilt of a third person
in a case to which he is not a party, but also, lest, in the multipli-
cation of the issues to be tried, the principal case should be lost
sight of, and the administration of justice should be frustrated.^
§ 373. It is a point of no small difficulty to determine precisely
the crimes which render the perpetrator thus infamous. The rule
is justly stated to require, that " the publicum judicium must be
upon an offence, implying such a dereliction of moral principle, as
carries with it a conclusion of a total disregard to the obligation of
an oath."* But the difficulty lies in the specification of those
omission of the oath was known at the Rev. Stat. 1846, ch. 102, § 99. And in
time, it seems he cannot. Lawrence v. Massachusetts. Gen. Stat., ch. 131, § 13.
Houghton, 5 Johns. 129 ; "White v. Hawn, And in Iowa. Code of 1851, art. 2388.
Id. 851. But if it was not discovered until In Florida, a conviction of perjury is a
after the trial, lie may. Hawks v. Baker, perpetual ohstacle to the competency of
6 Greenl. 72. [As to tlie mode of admin- the party as a witness, notwithstanding
istering tlie oath to deaf and dumb per- he may have been pardoned or punislied.
sons, see supra, § 366.] But convictions for other crimes go only
1 1 Gilb. Evid. by Loflrt, p. 256. It to the credibility, except the crimes of
was formerly thought, that an infamous murder, perjury, piracy, forgery, larceny,
punishment, for whatever crime, rendered robbery, arson, sodomy, or buggery. Con-
the person incompetent as a witness, by victions for any crime in another state, go
reason of infamy. But this notion is ex- to the credibility only. Thompson's Dig.
ploded ; and it is now settled that it is the pp. 834, 335.
crime and not the punishment that ren- 2 2 Dods. E. 186, per Sir Wm. Scott,
ders the man infamous. Bull. N. P. 292; s Rex v. Castel Careinion, 8 East, 77,
Pendock v. Mackinder, Willes, R. 666. Lee v. GanseU, Cowp. 3, per Lord Mans-
In Connecticut, the infamy of the witness field.
goes now only to his credibility. Rev. * 2 Dods. R. 186, per Sir Wm. Scott
Stat. 1849, tit. 1, § 141. So in Michigan.
CHAP. II.] COMPETENCY OP WITNESSES. 421
offences. The usual and more general enumeration is, treason,
felony, and the crimen falsi} In regard to the two former, as all
treasons, and almost all felonies were punishable with death, it
was very natural that crimes, deemed of so grave a character as to
render the offender unworthy to live, should he considered as
rendering him- unworthy of belief in a court of justice. But the
extent and meaning of the term crimen falsi, in our law, is nowhere
laid down with precision. In the Roman law, from which we have
borrowed the term, it included not only forgery, but every species
of fraud and deceit.^ If the offence did not fall under any other
head, it was called stellionatus,^ which included " all kinds of
cozenage and knavish practice in bargaining." But it is clear,
that the common law has not employed the term in this extensive
sense, when applying it to the disqualification of witnesses ;
because convictions for many offences, clearly belonging to the
crimen falsi of the civilians, have not this effect. Of this sort are
deceits in the quality of provisions, deceits by false weights and
measures, conspiracy to defraud by spreading false news,* and
several others. On the other hand, it has been adjudged that
persons are rendered infamous, and therefore incompetent to tes-
' Phil. & Am. on Evid. p. 17; 6 Com. teste reoipiendus est; nee ejus hseredes
Dig. 353, Testmoigne, A. 4, 5 ; Co. Lit. 6, nee participes querelse. Et hoe intelligen-
b ; 2 Hale, P. C. 277 ; 1 Stark. Evid. 94, dum est tam ex parte actoris, quam ex
'j-'>. A conviction for petty larceny dis- parte defensoris. Omnes antem illi, qui
(I'lalifies, as well as for grand larceny, perjurio vel Icesione Jidd sunt mfa,raes, oh
i'endock v. Mackinder, "Willes, R. 665. hoe etiam sunt repellendi, et omnes illi,
" Cod. lib. 9, tit. 22, ad legem Corne- qui in hello succubuerunt." Jura Nor-
lian de falsis. Cujac. Opera, torn. ix. maniae, cap. 62; [in Le.Grand Coustumier,
in locum. (Ed. Prati, A. D. 1839, 4to, pp. fol. edit. 1539.] In the ancient Danish
2191-2200) ; 1 Brown's Civ. & Adm. Law, law it is thus defined, in the chapter enti-
p. 525 ; Dig. lib, 48, tit. 10 ; Heinec. in tied. Falsi crimen quodnam censetur. " Fal-
Pand. pars vii. § 214-218. The crimen sum est, si terminum, finesve quis moverit,
falsi, as recognized in the Roman law, monetam nisi venia vel mandate regie
might be committed, 1. By words, as in cusserit, argentum adulterinum conflave-
perjury; — 2. By writing, as in forgery ; — rit, nummisve reprobis dolo maio emat
3. By act or deed: namely, in counter- vendatque, vel argento adulterino." An-
feiting or adulterating tiie public money, — oher, Lex Cimbrica, lib. 3, cap. 65, p. 249.
in fraudulently substituting one child ^ Dig. lib.' 47, tit. 20, 1. 3, Cujac. (in
for another, or a suppositious birth, — ^or locum) Opera, torn. ix. (ed. supra), p.
in fraudulently personating another, — in 2224. Stellionatus nomine signiflcatur
using false weights or measures, — in sell- omne crimen, quod nomen propriiim non
ing or mortgaging the same thing to two habet, omnis fraus, quae nomine proprio
several persons, in two several contracts, vacat. Translatum autem esse nomen
— and in officiously supporting the suit stellionatus, nemo est qui nesoiat, ab ani-
of another, by money, &c., answering to mali ad hominem vafrum, et decipiendi
the common-law crime of maintenance, peritum. Id. Heinec. ad Pand. pars. vii.
Wood, Instit. Civil Law, pp. 282, 283; §§ 147, 148 ; 1 Brown's Civ. & Adm. Law,
Halifax, Analysis Rom. Law, p. 134. The p. 426.
Jaw of Normandy disposed of the whole * The Ville de Varsovie, 2 Dods. R.
subject in these words: "Notandum si- 174. But see Crowther v. Hopwood, 9
quidem est, quod nemo in querela sua pro Stark. R. 21.
VOL. 1. 36
422 LAW OP EVIDENCE. [jf ART lU.
tify, by having been convicted of forgery ,i perjury, subornation of
perjury,^ suppression of testimony by bribery, or conspiracy to
procure the absence of a witness,^ or other conspiracy, to accuse
one of a crime,* and barratry.^ 'And from ttaese decisions, it may
be deduced, that the crimen falsi of the common law not only
involves the charge of falsehood, but also is one which may inju-
riously affect the administration of justice, by the introduction of
falsehood and fraud. A,t least it may be said, in the language
of Sir William Scott,^ " so far the law has gone affirmatively ; and
it is not for me to say where it should stop, negatively."
§ 374. In regard to the extent and effect of the disability thus
created, a distinction is to be observed between cases in which the
person disqualified is a party, and those in which he is not. In
cases between third persons, his testimony is universally excluded.'^
But where he is a party, in order that he may not be wholly reme-
diless, he may make any affidavit necessary to his exculpation or
defence, or for relief against an irregular judgment, or the like;*
but it is said that his affidavit shall not be read to support a crimi-
nal charge.^ If he was one of the subscribing witnesses to a deed,
will, or other instrument, before his conviction, his handwriting
may be proved, as though he were dead.^°
§ 875. We have already remarked, that no person is deemed
infamous in law, until he has been legally found guilty of an in-
famous crime. But the mere verdict of the jury is not sufficient
for this purpose ; for it may be set aside, or the judgment may be
arrested, on motion for that purpose. It is the judgment, and that
only, which is received as the legal and conclusive eAidence of the
1 Eex V. Davis, 5 Mod. 74. clare the perpetrator of a crime "infa
2 Co. Lit. 6, b ; 6 Com. Dig. 353, Testm. mous," this, it seems, will render him
A. 5. incompetent to testify. 1 Gilb. Evid. by
8 Clancey's case, Fortesc. R. 208; Bush- Loflft, pp. 256, 257 ; Co. Lit. 6, b.
ell V. Barrett, Ry. & M. 434. 6 2 Dods. R. 191. See also 2 Russ. on
* 2 Hale, 1'. C. 277 ; Hawk. P. C. b. 2, Crimes, 592, 693.
ch. 46 § ]<";l ; Co. Ijt. 6, b; Rex v. Prid- ' Even where it is merely offered as
die, 2 Leach, Cr. Cas. 496 ; Crowther v. an affidavit in showing cause against a
Hopwoo.l, 3 Stark. R. 21, arg.; 1 Stark, rule calling upon the party to answer, it
Evid. 95 ; 2 Dods. R. 191. will be rejected. In re Sawyer, 2 Ad.
6 Rex V. Ford, 2 Salk. 690 ; Bull. N. P. & El. 721, n. s.
292. The receiver of stolen goods is in- 8 Davis and Carter's case, 2 Salk. 461 ;
competent as a witness. See the Trial of Rex v. Gardiner, 2 Burr. 1117 ; Atcheson
Abner Rogers, pp. 136, 137; [Common- v. Everitt, Cowp. 382; Skinner r. Porot,
wealth V. Rogers, 7 Met. 500. A person 1 Ashm. 57.
convicted of maliciously obstructing the " Walker v. Kearney, 2 Stra. 1148;
passing of cars on a railroad is not thereby Rex v. Gardiner, 2 Burr. 1117.
an incompetent witness. Commonwealth i" Jones v. Mason, 2 Stra. 833.
V. Dame, 8 Cush. 384.] If a statute de-
CHAP. II.J COMPETENCY OP WITNESSES. 423
party's guilt, for the purpose of rendering him incompetent to
testify.^ And it must appear that tlie judgment ^ras rendered by
a court of competent jurisdiction.^ Judgment of outlawry, for
treason or felony, will have the same effect ; ^ for the party, in sub-
mitting to an outlawry, virtually confesses his guilt ; and so the
record is equivalent to a judgment upon confession. If the guilt
of the party should be shown by oral evidence, and even by his
own admission (though in neither of these piodes can it be proved,
if the evidence be objected to), or, by his plea of " guilty " which
has not been followed by a judgment,* the proof does not go to the
competency of the witness, however it may affect his credibility.^
And the judgment itself, when offered against his admissibility,
can be proved only by the record, or, in proper cases, by an au-
thenticated copy, which the objector must offer and produce at the
time when the witness is about to be sworn, or at farthest in the
course of the trial.^
§ 376. Whether judgment of an infamous crime, passed by
a foreign tribunal, ought to be allowed to affect the competency of
the party as a witness, in the courts of this country, is a question
upon wliich jurists are not entirely agreed. But the weight of
modern opinions seems to be, that personal disqualifications, not
arising from the law of nature, but from the positive law of the
country, and especially such as are of a penal nature, are strictly
territorial, and cannot be enforced in any country other than that
in which they originated.^ Accordingly, it has been held, upon
great consideration, that a conviction and sentence for a felony, in
one of the United States, did not render the party incompetent as
a witness, in the courts of another state ; though it might be shown
in diminution of the credit due to his testimony.^
1 6 Com. Dig. 354, Testm. A. 5; Eex Wicks v. Smalbrook, 1 Sid. 51; T. Ray.
V. Castel Careinion, 8 East, 77 ; Lee v. 32, s. o. ; The People v. Herrick, 13
Gansell, Cowp. 3 ; Bull. N. P. 292 ; Ktch Johns. 82.
V. Smalbrook, T. Ray. 32; The People " Id. Hilts v. Colren, 14 Johns. 182;
V. Whipple, 9 Cowen, 707 ; The People v. Commonwealth v. Green, 17 Mass. 537.
Herrick, 13 Johns. 82 ; Cushman v. Luker, In The State v. Ridgely, 2 Har. & McHen.
2 Mass, 108; Castellano v. PeiUon, 2 Mar- 120, and Clark's Lessee v. Hall, Id. 378,
tin, N. s. 466. which have been cited to the contrary,
2 Cooke V. Itaxwell, 2 Stark. R. 183. parol eridence was admitted to prove only
' Co. Lit. 6, b; Hawk. P. C. b, 2, ch. the fact of the witness's having been trans-
48, §22; 3 Inst. 212; 6 Com. Dig. 354, ported as a convict ; nottoprove the judg-
Testm. A. 5; 1 Stark. Evid. 95,96. In ment of conviction,
dcotlaud it is otherwise. Tail's Evid. ' Story on Confl. of Laws, §§ 91, 92,
p. 347. 104, 620-625 ; Martens, Law of Nations,
* Regina v. Hincks, 1 Dennis. Cr. Cas. b. 3, ch. 3, §§ 24, 25.
84. 8 Commonwealth v. Green, \" Mass.
' Rei t. Castel Careinion, 8 East, 77 ; 516, 589-549, per totam Curiam , contra.
424 LAW OF EVIDBNCB. [PABT IH.
§ 377. The disahility thus arising from infamy may, in general,
be removed in two modes : (1.) by reversal of the judgment ; and
(2.) by a pardon. The reversal of the judgment must be shown
in the same manner that the judgment itself must have been
proved, namely, by production of the record of reversal, or, in
proper cases, by a duly authenticated exemplification of it. The
pardon must be proved, by production of the charter of pardon,
under the great seal. ^ And though it were granted after the
prisoner had suifered the entire punishment awarded against him,
yet it has been held sufficient to restore the competency of the
witness, though he would, in such case, be entitled to very little
credit.^
§ 378. The riile, that a pardon restores the competency and
completely rehabilitates the party, is limited to cases where the
disability is a consequence of the judgment, according to the prin-
ciples of the common law.^ But where the disability is annexed
to the conviction of a crime by the express words of a statute, it
is generally agreed that the pardon will not, in such a case,
restore the competency of the offender;- the prerogative of the
sovereign being controlled by the authority of the express law.
Thus, if a man be adjudged guilty on an indictment for perjury,
at common law, a pardon will restore his competency. But if
the indictment be founded on the statute of 5 Eliz. c. 9, which
declares, that no person, convicted and attainted of perjury, or
subornation of perjury, shall be from thereforth received as
The State v. Candler, 3 Hawks, 393, per qualification to testify. And the same
Taylor, C. J., and Henderson, J. ; Hall, J., effect is given by § 4, of the same statute,
dvbitante, but inclining in favor of admit- to the endurance of the punishment award-
ting the witness. In the cases of The ed for any misdemeanor, except perjury
State V. Ridgely, 2 Har. & MoHen. 120; and subornation of perjury. See also 1
Clark's Lessee v. Hall, Id. 378 ; and Cole's W. IV., c. 37, to the same effect ; Tait on
Lessee v. Cole, 1 Har. & Johns. 572; Evid. pp. 346, 347. But whether these
which are sometimes cited in the negative, enactments have proceeded on the ground,
this point was not raised nor considered ; that the incompetency is in the nature of
they being cases of persons sentenced in punishment, or, that the offender is re-
England for felony, and transported to formed by the salutary discipline he has
Maryland, under the sentence prior to the undergone, does not clearly appear.
Revolution. ^ If the pardon of one sentenced to the
1 The United States v. Jones, 2 Wlieel- penitentiary for life contains a proviso,
er's Cr. Cas. 451, per Thompson, J. By that nothing therein contained shall be
Stat. 9 Geo. IV., c. 32, § 3, enduring the construed, so as to relieve the party fi-om
punishment to which an offender has been the legal disabilities consequent upon his
sentenced for any felony not punishable sentence, other than the imprisonment,
with death has the same effect as a par- the proviso is void, and the party is fully
don under the great seal, for the same of- rehabilitated. The People v. Pease, 3
fence ; and of course it removes the dis- Johns. Cas. 333.
CHAP, II.J
COMPETENCY OP WITNESSES.
425
a witness in any court of record, he will not be rendered compe-
tent by a pardon.^
§ 379. The case of aceompUces is usually mentioned under the
head of infamy ; but we propose to treat it more appropriately,
when we come to speak of persons disqualified by interest, since
accomplices generally testify under a promise or expectation of
pardon, or some other benefit. But it may here be observed, that
1 Eex V. Ford, 2 Salk. 689; Dover u.
Maestaer, 5 Esp. 92, 94 ; 2 Russ. on
Crimes, 595, 596; Rex v. Greepe, 2 Salk.
513, 514; Bull. N. P. 292; Phil. & Am.
on ilvid. 21, 22. See also Mr. Hargrave's
Juridical Arguments, vol. 2, p. 221 et seq.,
where this topic is treated with great
ability. "Whether the disability is, or is .
not, made a part of the judgment, and en-
tered as such on the record, does not
seem to be of any importance. The form
in which this distinction is taken in the
earlier cases evidently shows that its
force was understood to consist in this,
that in tlie former case the disability was
declared by the statute, and in the latter,
that it stood at common law. " Although
the incapacity to testify, especially con-
sidered as a mark of infamy, may really
operate as a severe punishment upon the
party ; yet there are other considerations
affecting other persons, which may well
warrant his exclusion from the halls of
justice. It is not consistent with the in-
terests of others, nor with the protection
which is due to them from the state, that
they should be exposed to the peril of tes-
timony from persons regardless of the
obUgation of an oath; and hence, on
grounds of public policy, the legislature
may well require, that while the judgment
itself remains unreversed, the party con-
victed shall not be heard as a witness. It
may be more safe to exclude in all cases,
than to admit in all, or attempt to distin-
guish by investigating the grounds on
which the pardon may have been granted.
And it is without doubt as clearly within
the power of the legislature, to modify the
law of evidence, by declaring what man-
ner of persons shall be competent to tes-
tify, as by enacting, as in the statute of
frauds, that no person shall be heard viva
voce in proof of a certain class of contracts.
The statute of Elizabeth itself seems to
place the exception on the ground of a
rule of evidence, and not on that of a penal
fulmination against the offender. The in-
tent of tlie legislature appears to have
been not so much to punish the party, by
depriving him of the privilege of being a
witness or a juror, as to prohibit the
courts from receiving the oath of any pei
son convicted of disregarding its obliga-
tion. And whether this consequence of
the conviction ^e entered on the record or
not, the effect is the same. The judg-
ment under the statute being properly
shown to the judges of a court of justice,
their duty is declared in the statute, inde-
pendent of the insertion of the inhibition
as part of the sentence, and unaffected by
any subsequent pardon. The legislature,
in the exercise of its power to punish
crime, awards fine, imprisonment, and the
pillory against the offender ; in the dis-
charge of its duty to preserve the temple
of justice from pollution, it repels from its
portal the man who feareth not an oath.
Thus it appears, that a man convicted of
perjury cannot be sworn in a court of jus-
tice, while the judgment remains unre-
versed, though his offence may have been
pardoned after the judgment ; but the rea-
son is found in the express direction of the
statutes to the courts, and not in the cir-
cumstances of the disability being made a
part of the judgment. The pardon exerts
its full vigor on the offender ; but is not
allowed to operate beyond this, upon the
rule of evidence enacted by the statute.
The punishment of the crime belongs to
the criminal code ; the rule of evidence to
the civil." See Amer. Jur. vol. 11, pp.
360, 361, 362. In several of the United
States, the disqualification is expressly
declared by statutes, and is extended to
all the crimes therein enumerated ; com-
prehending not only all the varieties of the
crimen faUi, as understood in the common
law, but divers other offences. In some
of the states, it is expressly enacted, that
the pardon of one convicted of perjury
shall not restore his competency as a wit-
ness. See Virginia, Rev. Stat. 1849, ch.
199, § 19 ; Florida, Thompson's Dig. p.
334; Georgia, Hotehkiss's Dig. p. 730.
But in Onio, competency is restored by
pardon. Rev. Stat. 1841, chap. 35, § 41.
In Georgia, convicts in the penitentiary
are competent to prove an escape, or a
mutiny. Hotchk. Dig. supra. And see
Neio Jerseti, Rev. Stat. 1846, tit. 8, ch. 1,
§23; Id. tit. 34, ch. 9, § 1.
36*
426 LAW OF EYIDENCE. [PART HI.
it is a settled rule of evidence, that a particeps crimims, notwith-
standing the turpitude of his condu.ct, is not, on that account, an
incompetent witness, so long as he remains not convicted and
sentenced for an infamous crime. The admission of accom-
plices, as witnesses for the government, is justified by the neces-
sity of the case, it being often impossible to bring the principal
offenders to justice without them. The usual course is, to leave
out of the indictment those who are to be called as witnesses ;
but it makes no difference as to the admissibility of an accom-
plice, whether he is indicted or not, if he has not been put on his
trial at the same time with his companions in crime.^ He is also
a competent witness in their favor ; and if he is put on his trial
at the same time with them, and there is only very slight evidence,
if any at all, against him, the court may, as we have already seen,^
and generally will forthwith direct a separate verdict as to him,
and, upon his acquittal, will admit him as a witness for the others.
If he is convicted, and the punishment is by fine only, he will be
admitted for the others, if he has paid the fine.^ But whether an
accomplice already charged with the crime, by indictment, shall
be admitted as a witness for the government, or not, is determined
by the judges, in their discretion, as may best serve the purpose
of justice. If he appears to have been the principal offender, he
will be rejected.* And if an accomplice, having made a private
confession, upon a promise of pardon made by the attorney-general,
should afterwards refuse to testify, he may be .convicted upon the
evidence of that confession.^
§ 380. The degree of credit which ought to be given to the testi-
mony of an accomplice is a matter exclusively within the province
of the jury. It has sometimes been said, that they ought not to
believe him, unless his testimony is corroborated by other evi-
dence ; and, without doubt, great caution in weighing such testi-
mony is dictated by prudence and good reason. But there is no
1 See Jones v. Georgia, 1 Kelly, 610. case of a party seeking relief. See infra,
2 Supra, § 362. § 383, note. See also 2 Stark. Evid. 9,
s 2 liuss. on Crimes, 597, 600 ; Eex v. 10 ; 2 Hale, P. C. 280 ; 7 T. R. 611 ; Mils-
Westbeer, 1 Leach, Cr. Cas. 14 ; Char- son v. Tales, 16 Mass. 335 ; Churchill v.
nock's case, 4 St. Tr. 582 (edit. 1730) ; Suter, 2 Mass. 162 ; Townsend v. Bush,
12 Howell's St. Tr. 1454, s. c. ; Rex v. 1 Conn. 267, per Trumbull, J.
Fletcher, 1 Stra. 633. The rule of the Ro- * The People v. Whipple, 9 Cowen,
man law. Nemo, allegans turpitudinem suam, 707 ; supra, § 363.
est audiendus, though formerly applied to ^ Commonwealth v. Knapp, 10 Pick.
witnesses, is now to that extent exploded. 477 ; Rex v. Burley, 2 Stark. Evid. 12,
It can only be applied, at this day, to the note (r).
CHAP. II.] COMPETENCY OF WITNESSES. 427
such rule of law ; it being expressly conceded that the jury naay,
if they please, act upon the evidence of the accomplice, without
any confirmation of his statement.^ But, on the other hand,
judges, in their discretion, will advise a jury not to convict of
felony upon the testimony of an accomplice alone, and without
corroboration ; and it is now so generally the practice to give
them such advice, that its omission would be regarded as an
omission of duty on the part of the judge.^ And, considering the
respect always paid by the jury to this advice from the bench, it
may be regarded as the settled course of practice, not to convict
a prisoner in any case of felony, upon the sole and uncorroborated
testimony of an accomplice. The judges do not, in such cases,
withdraw the cause from the jury by positive directions to acquit,
but only advise them not to give credit to the testimony.
§ 381. But though it is thus the settled practice, in cases of
felony, to require other evidence in corroboration of that of an
accomplice ; yet, in regard to the manner and extent of the corrobo-
ration to be required, learned judges are not perfectly agreed.
Some have deemed it sufficient, if the witness is confirmed in any
material part of the case ; ^ others have required confirmatory evi
1 Eex V. Hastings, 7 C. & P. 152, per guilty or not guilty, according to the con-
Ld. Denman, C. J. ; Eex v. Jones, 2 vietion which that evidence shall produce
Campb. 132, per Ld. EUenborough; 31 in their minds. 2 Hawk. P. C. ch. 46, §
Howell's St. Tr. 315, s. c. ; Eex v. At- 135 ; 1 Hale, P. C. 304, 305 ; Roscoe'a
wood, 2 Leach, Cr. Cas. 521 ; Eex v. Dur- Crim. Ev. 119 ; 1 Phil. Ev. 32.; 2 Stark,
ham, Id. 528 ; Rex v. Dawber, 3 Stark. E. Ev. 18, 20. 2. But the source of this evi-
34 ; Eex v. ]3arnard, 1 C. & P. 87, 88 ; denoe is so corrupt, that it is always
The People v. Costello, 1 Denio (N. Y.) looked , upon with suspicion and jealousy,
E. 83. and is deemed unsafe to rely upon without
^ Eoscoe's Crim. Evid. p. 120; 2 Stark, confirmation. Hence the court ever cou-
Evid. 12 ; Eex v. Barnard, 1 C. & P. 87. sider it their duty to advise a jury to ao-
Por the limitation of this practice to cases quit, where there is no evidence other
of felony, see Eex v. Jones, 31 Howell's than the uncorroborated testimony of an
St. Tr. 315, per Gibbs, Attor.-Gen., arg. accomplice. 1 Phil. Evid. 34 ; 2 Stark.
See also Eex ;;. Hargrave, 5 C. & P. 170, Evid. 24; Eex v. Durham, 2 Leach, 528;
where persons present at a figlit, which Eex v. Jones, 2 Campb. 132 ; 1 Wheeler's
resulted in manslaughter, though princi- Crim. Cas. 4i8; 2 Eogers's Recorder, 38;
pals in the second degree, were held not 5 Ibid. 95. 3. The mode of corroboration
to be such accomplices as required cor- seems to be less certain. It is perfectly
roboration, when testifying as witnesses. clear, that it need not extend to tlie whole
8 Tliis is the rule in Massachusetts, testimony; but it being shown tliat the
where the law was stated by Morton, J., accomplice has testified truly in some par-
as follows : " 1. It is competent for a jury ticulars, the jury may infer that he has in
to convict on the testimony of an accom- others. But what amounts to corrobora-
plice alone. The principle which allows tion t We think the rule is, that the cor-
the evidence to go to the jury, necessarily roborative evidence must relate to some
involves in it a power in them to believe portion of the testimony which is material
it. The defendant has a right to have the to the issue. To prove that an accomplice
jury decide upon the evidence which may had told the truth in relation to irrele-
be offered against him ; and their duty will vant and immaterial matters, which were
require of them to return a verdict of known to everybody, would have no tend-
428
LAW OP EVIDENCE.
[part ra.
dence as to the corpus delicti only; and others have thought it
essential, that there should be corroborating proof that the prisoner
actually participated in the ofFence ; and that, when several pris-
oners are to be tried, confirmation is to be required as to all of
them, before all can be safely convicted ; the confirmation of the
witness, as to the commission of the crime, being regarded as no
confirmation at all, as it respects the prisoner. For, in describing
the circumstances of the offence, he may have no inducement to
speak falsely, but may have every motive to declare the truth, if
he intends to be believed, when he afterwards fixes the crime
upon the prisoner.^ If two or more accomplices are produced as
witnesses, they are not deemed to corroborate each other ; but the
same rule is applied, and the same confirmation is required, as if
there were but one.^
§ 382. There is one class of persons apparently accomplices, to
whom the rule, requiring corroborating evidence, does not apply ;
ency to confirm "his testimony, involying
the guilt of the party on trial. If this
were the case, every witness, not incom-
petent for the want of understanding,
could always furnish materials for the
corroboration of his own testimony. If
he could state where he was born, where
he had resided, in whose custody he had
been, or in what jail, or-what room in the
jail he had been confined, he might easily
get confirmation of all these particulars.
But these circumstances having no neces-
sary connection with the guilt of the de-
fendant, the proof of the correctness of the
statement in relation to them would not
conduce to prove that a statement of the
guilt of the defendant was true. Roscoe's
Crim. Evid. 120 ; Rex v. Addis. 6 Car. &
Payne, 388." See Commonwealth v. Bos-
worth, 22 Pick. 397, 399, 400 ; The I^eople
V. Costello, 1 Denio, 83. A similar view
of the nature of corroborative evidence, in
cases where such evidence is necessary,
was taken by Dr. Lushington, who held
that it meant evidence, not merely show-
ing that the account given is probable, but
proving facts ejusdem generis, an<i tending
to produce the same result. Simmons v.
Simmons, 1 1 Jur. 830. And see Maddock
V. SuUivan, 2 Rich. Eq. R. 4.
1 Rex V. Wilkes, 7 C. & P. 272, per
Alderson, B.; Rox v. Moore, Id. 270;
Rex V. Addis, 6 C. & P. 388, per Patteson,
J.; Rex V. Wells, 1 Mood. & M. 326, per
Littledale, J.; Rex v. Webb, 6 C. & P.
596 ; Regina v. Dyke, 8 C. & P. 261 ; Re-
gina V. Birkett, 8 C. & P. 732 ; Common-
wealth t'. Bosworth, 22 Pick. 899, per
Morton, J. The course of opinions and
practice on this subject is stated more at
large in 1 Phil. Evid. pp. 30-38 ; 2 Russ.
.on Crimes, pp. 956-968, and in 2 Stark.
Evid. p. 12, note (x), to which the learned
reader is referred. See also Roscoe's
Crim. Evid. p. 120. Chief Baron Joy,
after iin elaborate examination of English
authorities, states the true rule to be this,
that "the confirmation ought to be in
such and so many parts of the accom-
plice's narrative, as may reasonably satisfy
the jury that he is teUing truth, without
restricting the confirmation to any particu-
lar points, and leaving the effect of such
confirmation ( which may vary in its effect
according to the nature and circumstances
of the particular case) to the consideration
of the jury, aided in that consideration by
the observations of the judge." See .)'.iy
on the Evidence of Accomphces, pp. 98,
99. By the Scotch law, the evidence of
a single witness is in no case sufiicient to
warrant a conviction, unless supported by
a train of circumstances. Alison's Prac-
tice, p. 551. In Iowa, it is required by
statute, that the corroboration be such as
shall tend to connect the ilefendnnt wit'i
the commission of the offence; and not
merely to show the commission of the
crime, or its circumstances. Code of
1851, art. 2998.
2 Rex V. Noakes, 3 C. & P. 326, per
Littledale, J. ; Regina v. Bannen, 2 Mood.
_Cr. Cas. 309. Tlie testimony of tlie wife
of an accomplice is not considered as cor-
roborative of her husband. Rex v. Neale,
7 C. & P. 168, per Park, J.
CHAP. II.J COMPETENCY OP WITNESSES. 429
namely, persons who have entered into communication with con-
spirators, but either afterwards repenting, or having originally
determined to frustrate the enterprise, have siibsequeutly disclosed
the conspiracy to the public authorities, under whose direction
they continue to act with their guilty confederates, until the mat-
ter can be so far advanced and matured, so as to insure their
conviction and punishment. The early disclosure is considered
as binding the party to his duty ; and though a great degree of
objection or disfavor may attach to him for the part he has acted
as an informer, or on other accounts, yet his case is not treated as
the case of an accomplice.^
§ 383. Whether a party to a negotiable instrument, who has
given it credit and currency by his signature, shall afterwards be
admitted as a witness, in a suit between other persons, to prove
the instrument originally void, is a question upon which judges
have been much divided in opinion. The leading case against the
admissibility of the witness is that of Walton v. Shelley^ in which
the indorser of a promissory note was called to prove it void for
usury in its original concoction. The security was in the hands
of an innocent holder. Lord Mansfield, and the other learned
judges held that upon general grounds of public policy, the wit-
ness was inadmissible ; it being " of consequence to mankind,
that no person should hang out false colors to deceive them, by
first affixing his signature to a paper, and then afterwards giving
testimony to invalidate it." And, in corroboration of this opinion,
they referred to the spirit of that maxim of the Roman law, —
Nemo, allegans suam twpitudinem, est audiendus.^
§ 384. The doctrine of this case afterwards came under discus-
sion, in the equally celebrated case of Jordaine v. Lashhrooke.^
1 Eex V. Despard, 12 Howell's St. Tr. Cod. lib. 7, tit. 8, 1. 5, in marglne ; Codex
489, per Lord Ellenborough. [One who Justinian! (4to, Parisiis, 1550), lib. 7, tit.
purchases intoxicating liquor sold coutrary 16, 1. 1 ; Id. tit. 8, 1. 5, in margine ; 1 Mas-
to law, for the express purpose of prose- card. De Prob. Concl. 78, n. 42. And see
cuting the seller for an unlawful sale, is 4 Inst. 279. It seems formerly to haye
not an accomplice. Commonwealth v. been deemed sufficient to exclude wit-
Downing, 4 Gray, 29.] nesses, testifying to their own turpitude ;
^ 1 T. E. 296. but the objection is now held to go only
8 This maxim, though it is said not to to the credibility of the testimony. 2
be expressed, in terms, in the text of the Stark. Evid. 9, 10 ; 2 Hale, P. C. 280 ; 7
Corpus Juris (see Gilmer's Eep. p. 275, T. R. 609, per Grose, J. ; Id. 611, per
note), is exceedingly familiar among the Lawrence, J. Thus, a witness is compe-
civilians ; and is found in their commenta- tent to testify that his former oath was
ries on various laws in the Code. See corruptly false. Eex v. Teal, 11 East^
Corpus Juris Glossatum, torn. iv. col. 461, 309; Eands v. Thoipas, 5 M. & S. 244.
1799; Corp. Juris Gothofredi (fol. edit.), * 7 T. R. 599.
430 LAW OP EVIDENCE. [PART III
This was an action by the indorsee of a bill of exchange against
the acceptor. The bill bore date at Hamburg ; and the defence
was, that it was drawn in London, and so was void at its creation,
for want of a stamp ; the statute ^ having declared, that unstamped
bills should neither be pleaded, given in evidence, or allowed to
be available, in law or equity. The indorser was offered by tlie
defendant as a witness, to prove this fact, and the court held that
he was admissible. This case might, perhaps, have formed an
exception to the general rule adopted in Walton v. Shelley, on the
ground, that the general policy of the law of commerce ought to
yield to the public necessity in matters of revenue ; and this neces-
sity was relied upon by two of the three learned judges who con-
curred in the decision. But they also concurred, with Lord
Kenyon, in reviewing and overruling the doctrine of that case.
The rule, therefore, now received in England is, that the party to
any instrument, whether negotiable or not, is a competent witness
to prove any fact, to which any other witness would be competent
to testify ; provided he is not shown to be legally infamous, and
is not directly interested in the event of the suit. The objection,
that thereby he asserts that to be false which he has solemnly
attested or held out to the world as true, goes only to his credi-
bility with the jury .2
§ 385. The courts of some of the American states have adopted
the later English rule, and admitted the indorser, or other party
to an instrument, as a competent witness to impeach it, in all
cases where he is not on other grounds disqualified. In other
states decisions are found, which go to the exclusion of the party
to an instrument in every case, when offered as a witness to defeat
it, in the hands of a third person ; thus importing into the Law of
Evidence the maxim of the Roman law in its broadest extent. In
other "states, the courts, referring the rule of exclusion to the
ground of public convenience, have restricted its application to
1 31 Geo. in., c. 25, §§ 2, 16. This Willes, BuU. N.P. 264; Howard u.Braith-
act was passed subsequent to the decision waite, 1 Ves. & B. 202, 208 ; Title v. Gre-
of Walton t). SheUey, IT. K. 296. vett, 2 Ld. Raym. 1008; Dickinson v.
2 1 Phil. Evid. 39, 40. On this ground, Dickinson, 9 Met. 471 ; Twambly v. Hen-
parties to other instruments, as well as ley, 4 Mass. 441. It has, however, been
subscribing witnesses, if not under some held in Louisiana, that a notary cannot be
other disability, are, both in England and examined as a witness, to contradict a
in the United States, held admissible wit- statement made by him in a protest ; and
nesses to impeach the original validity of that the principle extends to every pubho
such instruments. 7 T. B. 611, per Law- officer, in regard to a certificate given hy
rence,J.; Hewardu. Shipley, 4 East, 180; him in liis official character. Peet •■i
Loweu. JoUffe, 1 W 31. 365; Austin '.: Dougherty, 7 Rob. 86.
CHAP, n.]
COMPETENCY OP WITNESSES.
431
the case of a negotiable security, actually negotiated and put into
circulation before its maturity, and still in the hands of an inno-
cent indorsee, without notice of the alleged original infirmity, or
any other defect in the contract. And in this case, the weight
of American authority may now be considered as against the
admissibility of the witness to impeach the original validity of
the security ; although the contrai-y is still holden in some courts,
whose decisions, in general, are received with the highest respect.^
1 The rule, that the indorser of a nego-
tiable security, negotiated before it was
due, is not admissible as a witness to prove
it originally void, when in the hands of an
innocent indorsee, is sustained by the Su-
preme Court of the United States, in The
Bank of the United States v. Dunn, 6
Peters, 51, 67, explained and confirmed
in The Bank of the Metropolis v. Jones,
8 Peters, 12, and in the United States v.
Leffler, 11 Peters, 86, 94, 95; Scott v.
Lloyd, 12 Peters, 149 ; Henderson v. An-
derson, 3 Howard, s. c. Rep. 73; [Salt-
marsh V. Tuthill, 13 How.- U. S. 229;]
Taylor v. Luther, 2 Sumner, 235, per
Story, J. It was also adopted in Massa-
chusetts; Churchill v./Suter, 4 Mass. 156;
Fox V. "Whitney, 16 Mass. 118 ; Packard
V. Richardson, 17 Mass. 122. See also the
case of Thayer v. Crossman, 1 Metcalf, R.
416, in which the decisions are reviewed,
and the rule clearly stated and vindicated,
by Shaw, C. J. And in New Hampshire ;
Bryant v. Rittersbush, 2 N. Hamp. 212;
Haddock v. Wilmarth, 5 N. Hamp. 187.
And in Maine; Deering v. Sawtel, 4
Greenl. 191; Chandler v. Mortpn, 4
Greenl. 374. And in Pennsylvania; O'-
Brien V. Davis, 6 Watts, 498 ; Harrisburg
Bank v. Forster, 8 Watts, 804, 309 ; Dav-
enport V. Freeman, 3 Watts & Serg. 557 ;
["Harding v. Mott, 20 Penn. 469 ; Penny-
packer V. Umberger, 22 lb. 492.] In Lou-
isiana, the rule was stated and conceded
by Porter, J., in Shamburg v. Commagere,
10 Martin, 18 ; and was again stated, but
an opix.ion withheld, by Martin J., in Cox
V. Williams, 5 Martin, 139, s. s. In Ver-
mont, the case of Jordaine v. Lashbrooke
was followed, in Nichols v. Holgate, 2 Aik.
138 ; but the decision is said to have
been subsequently disapproved by all the
judges, in Chandler v. Mason, 2 Verm.
198, and the rule in Walton v. Shelley
approved. [In a later case, the question
came directly before the court, and the
decision in Nichols v. Holgate was con-
firmed. Pecker v. Sawyer, 2A "Verm. 459.]
In Ohio, the indorser was admitted to prove
facts subsequent to the indorsement; the
court expressing no opinion upon the gene-
ral rule, though it was relied upon by the
opposing counsel. Stone v. Vance, 6 Ohio
Rep. 246. But subsequently the rule
seems to have been admitted. Rohrer v.
Morningstar, 18 Ohio, 579. In Mississippi,
the witness was admitted for the same
purpose ; and the rule in Walton v. Shel-
ley was approved. Drake v. Henley,
Walker, R. 541. In Illinois, the indorser
has been admitted, where, in taking the
note, he acted as the agent of the indorsee,
to whom he immediately transferred it,
without any notice of the rule. Webster
V. Vickers, 2 Scam. 295. But the rule of
exclusion has^een rejected, and the gen-
eral doctrine of Jordaine v. Lashbrooke
followed in New York; Staflford v. Rice, 6
Cowen, 23 ; Bank of tftica v. HilUard, Id.
153 ; Williams v. Walbridge, 3 Wend. 416.
And in Virginia; Taylor v. Beck, 3 Ran-
dolph, R. 316. And in Connecticut ; Town-
send V. Bush, 1 Conn. 260. And in South
Carolina; Knight v. Packard, 3 McCord,
71. [And in Texas; Parsons v. Phipps, 4
Tex. 341.] And in Tennessee; Stump v.
Napier, 2 Yerger, 35. In Mart/land, it
was rejected by three judges against two,
in Ringgold v. Tyson, 3 H. & J. 172. It
was also rejected in New Jersey, in Free-
man V. Brittin, 2 Harrison, 192. And in
North Carolina; Guy v. Hall, 3 Murphy,
151. And in Georgia; Slack v. Moss,
Dudley, 161. And in Alabama; Todd v.
Staflford, 1 Stew. 199 ; Griffing v. Harris,
9 Porter, 226. In Kentucky, in the case of
Gorham v. Carroll, 3 Littell, 221, where
the indorser was admitted as a witness, it
is to be observed, that the note was in-
dorsed without recourse to him, and there-
by marked with suspicion ; and that the
general rule was not considered. More
recently in New Hampshire, the doctrine
of Walton V. Shelley has been denied, and
the rule of the Roman law has been ad-
mitted only as a rule of estoppel upon the
parties to the transaction and in regard to
their rights, and not as a rule of evidence,
aflTeoting the competency of witnesses;
and therefore the maker of a note, being
released by his surety, was held compe-
tent in an action by an indorsee against
432
LAW OF EVIDENCE.
[PAET III.
§ 386.. Another class of persons incompetent to testify in a
cause consists of those who are interested in its result.'^ The prin
ciple on wliich these are rejected is the same with that which
excludes the parties themselves, and which has already been con-
sidered ; 2 namely, the danger of perjury, and the little credit
generally found to be due to such testimony, in judicial investiga-
tions. This disqualifying interest, however, must be some legal,
certain, and immediate interest, however minute, either in the
event of the cause itself, or in the record, as an instrument of
evidence, in support of his own claims, in a subsequent action.^
It must be a legal interest, as distinguished from the prejudice or
bias resulting from friendship or hatred, or from consanguinity,
or any other domestic or social or any official relation, or any
other motives by which men are generally influenced; for these
go only to the credibility. Thus, a servant is a competent witness
the surety, to testify to an alteration of
the note, made by himself and the payee,
which rendered it void as to the surety.
Haines v. Dennett, 11 N. Hamp. 180. See
further, 2 Stark. Evid. 179, note (A);
Bayley on Bills, p. 586, note (b) (Phil-
lips and Sewall's edit.); [Chitty on Bills
(12th Am. edit, by Perkins), p. 747 et seq.
(*p. 669 et seq.).] But all these decisions
against the rule in Walton v. Shelley, ex-
cept that in New Jersey and the last cited
case in New Hampshire, were made long
before that rule was recognized and adopt-
ed by the Supreme Court of the United
States. The rule itself is restricted to
cases where the witness is called to prove
that the security was actually void at the
time when he gave it currency as good ;
and this in the ordinary course of business,
and without any mark or intimation to
put the receiver of it on his guai-d. Hence
the indorser is a competent witness, if he
indorsed the note "without recourse" to
himself; Abbott v. Mitchell, 6 Shepl. 355;
or, is called to prove a fact not going to
the original infirmity of the security;
Buck V. Appleton, 2 Shepl. 284; "Wendell
V. George, R. M. Charlton's Eep. 51 ; or,
if the instrument was negotiated out of
the usual course of business; Parke v.
Smith, 4 Watts & Serg. 287. So, the in-
dorser of an accommodation note, made
for his benefit, being released by the
maker, is admissible as a witness for the
latter, to prove that it has subsequently
been paid. Greenough v. West, 8 N.
Hamp. 400. And see Kinsley v. Eobin-
son, 21 Pick. 327.
^ In Connecticut, persons interested in
the cause are now, by statute, made com-
petent witnesses; the objection of interest
going only to their credibility. Eev. Stat.
1849, tit. 1, § 141. In New York, persons
interested are admissible, except those for
whose immediate benefit the suit is prose-
cuted or defended, and the assignor of a
thing in action, assigned for the purpose
of making him a witness. Eev. Stat. vol.
3, p. 769, 3d edit. In Ohio, the law is sub-
stantially the same. Stat. March 23, 1850,
§ 3. In Michigan, aU such persons are
admissible, except parties to the record,
and persons for whose immediate benefit
the suit is prosecuted or defended; and
their husbands and wives. Eev Stat.
1846, ch. 102, § 99. In Virginia, persons
interested are admissible in criminal cases,
when not jointly tried with the defendant.
Eev. Stat. 1849, ch. 199, § 21. In Massa-
chusetts, the objection of interest no longer
goes to the competency of any witnesses,
except witnesses to wills. Gen. Stat. ch.
131, § 14. See supra, §§ 327, 329, notes.
[The admission by statute, of parties as
witnesses, of course removes the objection
of interest. In some states, where parties
are not permitted to testify, the objection
of interest is removed by statute. Supra,
§§ 827, 329, notes.]
2 Supra, §§ 326, 327, 329. And see
the observations of Best, C. J., in Hovill
V. Stephenson, 5 Bing. 493.
8 1 Stark. Evid. 102 ; Bent v. Baker,
3 T. E. 27; Doe v. Tyler, 6 Bing. 390,
per Tindal, C. J. ; Smith v. Prager, 7 T.
K. 62 ; Wilcox v. Earrell, 1 H. Lords Cas.
93; Bailey v. Lumpkin, 1 Kelly, 892.
CHAP, n.j COMPETENCY OP WITNESSES. 433
for his master, a child for his parent, a poor dependent for his
patron, an accomplice for the government, and the like. Even
a wife has been held admissible against a prisoner, though she
believed that his conviction would save her husband's life.^ The
rule of the Roman law, — Idonei non videntur esse testes, quibus
imperari potest ut testes fient^ — has never been recognized in the
common law, as affecting the competency ; but it prevails in those
countries in whose jurisprudence the authority of the Roman law
is recognized. Neither does the common law regard as of binding
force the rule that excludes an advocate from testifying in the
cause for his client ; — Mandatis cavetur, ut Prcesides attendant, ne
patroni, in causa cut patroeinium prcestiterunt, testimonium dicant.^
But on grounds of public policy, and for the purer administration
of justice, the relation of lawyer and client is so far regarded by
the rules of practice in some courts, as that the lawyer is not per-
mitted to be botli advocate and witness for his client in the same
cause.*
§ 387. The interest, too, must be real, and not merely appre^
Jiended by the party. For it would be exceedingly dangerous to
violate a general rule, because in a particular case, an individual
does not understand the nature or extent of his rights and liabili-
ties. If he believes and states that he has no interest, the very
statement of the objection to his competency may inform- him that
he has ; and on the other hand, if he erroneously tliinks and de
clares that he is interested, he may learn, by the decision of the
court, that he is not. Indeed, there would be danger in resting
the rule on the judgment of a witness, and not on the fact itself;
for the apprehended existence of the interest might lead his judg-
ment to a wrong conclusion. And moreover, the inquiry which
would be necessary into the groimds and degree of the witness's
belief, would always be complicated, vague, and indefinite, and
1 Rex V. Kudd, 1 Leach, Cr. Cas. 135, » Dig. Hb. 22, tit. 5, 1. 25 ; Poth. Ob).
151. In weighing the testimony of wit- [793.1
oesses naturally biased, the rule is to give * Stones v. Byron, 4 Dowl. & Lowndes,
credit to their statements of facts, and to 393 ; Dunn v. Packwood, 11 Jur. 242 ;
view their deductions from facts with sus- Reg. Gen. Sup. Court, N. Hamp. Reg. 23,
picion. Dillon v. Dillon, 3 Curt. 96. 6 N. Hamp. R. 580 ; Mishler v. Baum-
2 Dig. lib. 22, tit. 5, 1. 6 ; Poth. Obi. gardner, 1 Amer. Law Jour. 304, n. s.
[793.] In Lower Canada, the incompetency But see contra, Little v. Keon, 1 N. Y.
of the relations and connections of the par- Code Rep. 4 ; 1 Sandf. 607 ; Potter ».
ties, in civil cases, beyond the degree of Ware, 1 Cush. 518, 524, and cases cited
cousins-gerraan, is removed by Stat. 41 by MetcaJf, J.
Geo, III. 0. 8. See Rev. Code, 1845, p.
144.
VOL. I. S7
434 LAW OP EVIDENCE. [PAIIT III.
productive of much inconvenience. For these reasons, the more
simple and practicable rule has been adopted of determining the
admissibility of the witness by the actual existence, or not, of
any disqualifying interest in the matter.^
§ 388. If the witness believes himself to be under an honorary
obligation, respecting the matter in controversy, in favor of the
party calling him, he is nevertheless a competent witness, for
the reasons already given; and his credibility is left with the
jury.2
§ 389. The disquaUfying interest of the witness must be in the
event of the cause itself, and not in the question to be decided.
His liability to a like action, or his standing in the same predica-
ment with the party, if the verdict cannot be given in evidence
for or against him, is an interest in the question only, and does
not exclude him.^ Thus, one underwriter may be a witness for
another underwriter upon the same policy ; * or, one seaman for
another, whose claim for wages is resisted, on grounds equally
affecting all the crew ; ^ or, one freeholder for another, claiming
land under the same title, or by the same lines and corners ; ^ or,
one devisee for another, claiming under the same will ; ^ or, one
trespasser for his co-trespasser ; " or, a creditor for his debtor ; ^
or a tenant by the courtesy, or tenant in dower, for the heir at law,
in a suit concerning the title. i° And the purchaser of a license to
11 Phil. Evid. 127, 128; 1 Stark. Gilpin u. Vincent, 9 Johns. 219 ; Moore ».
Evid. 102; Gresley on Evid. p. 253; Hitchcock, 4 Wend. 292 ; Union Bank v.
Xait on Evid. p. 351. In America and in Knapp, 3 Pick. 96, 108 ; Smith v. Downs,
England, there are some early but very 6 Conn. 365 ; Stimmel v. Underwood, 3
respectable authorities to the point, that a Gill & Johns. 282; Howe v. Howe, 10
witness believing himself interested is to N. Hamp. 88.
be rejected as incompetent. See Fother- ^ Evans v. Eaton, 7 Wheat. 3S6, 424,
ingham it. Greenwood, 1 Stra. 129 ; Tre- per Story, J. ; Van Nuys v. Terhune, 3
lawny v. Thomas, 1 H. Bl. 307, per Ld. Johns. Gas. 82; Stewart v. Kip, 5 Johns.
Loughborough, C. J., and Gould, J.; 256; Evans v. Hettich, 7 Wheat. 453;
L'Amitie, 6 Rob. Adm. 269, note (a) ; Clapp v. Mandeville, 5 How. Mis. R. 197.
Plumb V. Whiting, 4 Mass. 518 ; Rich- *" Bent v. Baker, 3 T. R. 27.
ardson v. Hunt, 2 Munf. 148 ; Freeman v. ^ Spurr v. Pearson, 1 Mason, 104 ;
Lueket, 2 J. J. Marsh. 390. But the Hoyt v. Wildfire, 3 Johns. 518.
weight of modern authority is clearly ^ Richardson v. Carey, 2 Rand, 87;
the other way. See Commercial Bank of Owings v. Speed, 5 Wheat. 423.
Albany v. Huglies, 17 Wend. 94, 101, ' Jackson v. Hogarth, 6 Cowen, 248.
102 ; Sta,ll v. The Catskill Bank, 18 Wend, « Per Ashurst, J., in Walton v. Shcl-
466, 475, 476 ; Smith u. Downs, 6 Conn, ley, 1 T. R. 301. See also Blackett v.
871; Long v. BaiUe, 4 S. & R. 222; Weir, 5 B. & C. 387, per Abbott, C. J.;
Dellone w. Reohmer, 4 Watts, 9 ; Stimmel Duncan v. Meikleham, 3 C. & P. 192;
I). Underwood, 3 G. & J. 282; Havis v. Curtis v. Graham, 12 Martin, 289.
Barkley, 1 Harper's Law Rep. 63. And ^ Paull v. Brown, 6 Esp. 34 ; Nowell v.
see infra, § 423, n. Davies, 5 B. & Ad. 368.
2 Peterson v. Stoffles, 1 Campb. 144 ; w Jackson v. Brooks, 8 Wend. 426 ;
Solorete v. Melville, 1 Man. & Ryl. 198 ; Doe v. Maisey, 1 B. & Ad. 439.
CHAP. II.] COMPETENCY OP WITNESSES. 435
use a patent may be a witness for the patentee, in an action for
infringing the patent.^
§ 390. The true test of the interest of a witness is, that he will
either gain or lose by the direct legal operation and effect of the
judgment, or that the record will be legal evidence for or against
him, in some other action.^ It must be a present, certain, and
vested interest, and not an interest uncertain, remote, or contin-
gent. Thus the heir apparent to an estate is a competent witness
in Support of the claim of his ancestor ; though one, who has
a vested interest in remainder, is not competent.^ And if the
interest is of a doubtful nature, the objection goes to the credit of
the witness, and not to his competency. For, being always pre-
sumed to be competent, the burden of proof is on the objecting
party, to sustain his exception to the competency ; and if he fails
satisfactorily to establish it, the witness is to be sworn.*
§ 391. The magnitude or degree of the interest is not regarded in
estimating its effect on the mind of the witness ; for it is impossi-
ble to measure the influence which any given interest may exert.
It is enough, that the interest which he has in the subject is direct,
certain, and vested, however small may be its amount ; ^ for, in-
terest being admitted as a disqualifying circumstance in any case,
it must of necessity be so in every case, whatever be the character,
rank, or fortune of the party interested. Nor is it necessary, that
the witness should be . interested in that which is the subject of
the suit ; for, if he is liable for the costs, as in the case of a pro-
chein amy, or a guardian, or the like, we have already seen,^ that
he is incompetent. And though, where the witness is equally
interested on both sides, he is not incompetent ; yet if there is a
certain excess of interest on one side, it seems that he will be
incompetent to testify on that side ; for he is interested, to the
amount of the excess, in procuring a verdict for the party, in
whose favor his interest preponderates. '^
1 De Rosnie v. Fairlie, 1 M. & Eob. but to the plaintiff's executor. Leach v.
457. Thomas, 7 C. & P. 327.
2 1 Gilb. Evid. by Loffl, p. 225 ; Bull. * Bent v. Baker, 3 T. E. 27, 32; Jack-
N. P. 284; Bent v. Baker, 3 T. R. 27 ; 6 son v. Benson, 2 Y. & J. 45 ; Rex v. Cole,
Ring. 894, per Tindal, C. J. ; supra, § 386 ; 1 Esp. 169 ; Duel «. Fisher, 4 Denio, 516 ;
Eex V. Boston, 4 East, 581, per Lord El- Comstock v. Rayford, 12 S. & M. 369 ;
lenborough. Story v. Saunders, 8 Humph. 663.
8 Smith V. Blackham, 1 Salk. 283 ; ^ Burton v. Hinde, 5 T. R. 173 ; But-
Doe V. Tyler, 6 Bing. 390. But in an ac- ler v. Warren, 11 Johns. 57 ; Doe v. Tooth,
tion for waste, brought by a landlord, who 3 Y. & J. 19.
is tenant for life, the remainder-man is a ^ Supra, § 347. See also, infra, 401,
competent witness for the plaintiff; for the 402.
damages would not belong to the witness, ' Larbalestier v. Clark, 1 B. & Ad. 899
436
LAW OP EVIDENCE.
[part III
§ 392. The nature of the direct interest in the event of the suit
which disqualifies the witness may be illustrated by reference to
some adjudged cases. Tlius, persons having become bail for the
defendant have been held incompetent to testify as witnesses on
his side ; for they are immediately made liable, or discharged, by
the judgment against or in favor of the principal. And if the bail
have given security for the appearance of the defendant, by deposit-
ing a sum of money with the officer, the effect is the same.^ If an
underwriter, who has paid his proportion, is to be repaid in the
event of the plaintiff's success in a suit against another underwriter
upon the same policy, he cannot be a witness for the plaintiff.^
A creditor, whether of a bankrupt, or of an estate, or of any other
person, is not admissible as a witness to increase or preserve the
fiind, oxit of which he is entitled to be paid, or otherwise benefited.^
Nor is a bankrupt competent in an action by his assignees, to
prove any fact tending to increase the fund ; though both he and his
Where this preponderance arose from a
liability to costs only, the rule formerly
was to admit the witness ; because of the
extreme difficulty which frequently arose,
of determining the question of his liability
to pay the costs. See llderton v. Atkin-
son, 7 T. R. 480; Bu-t v. Kershaw, 2
East, 458. But these cases were broken
in upon, by Jones v. Brooke, 4 Taunt.
464 ; and the witness is now held incom-
petent, wherever there is a preponder-
aney of interest on the side of the party
adducing him, though it is created only
by the liability to costs. Townsend v.
Downing, 14 East, 565 ; Hubbly v. Brown,
16 Johns. 70; Scott v. McLellan, 2 Greenl.
199; Bottomley v. Wilson, 3 Stark. R.
148; Harman v. Lesbrey, 1 Holt's Cas.
390 ; Edmonds v. Lowe, 8 B. & C. 407.
And see Mr. Evans's observations, in 2
Poth. Obi. p. 269, App. No. 16. The ex-
istence of such a rule, however, was re-
gretted by Mr. Justice Littledale, in 1 B.
& Ad. 903 ; and by some it is still thought
the earlier cases, above cited, are support-
ed by the better reason. See further,
Barretto v. Snowden, 4 Wend. 181 ; Hall
V. Hale, 8 Conn. 886.
1 Lacon v. Biggins, 3 Stark. R. 132 ;
1 T. R. 164, per Buller, J. But in such
cases, if the defendant wishes to examine
his bail, the court will either allow his
name to be stricken out, on the defend-
ant's adding and justifying another person
as his bail ; or, even at the trial, will per-
mit it to be stricken out of the bail-piece,
upon tbe defendant's depositing a suffi-
cient sum with the proper officer. 1
Tidd's Pr. 259 ; BaiUie v. Hole, 1 Mood. &
M. 289 ; 3 C. & P. 560, s. c. ; Whartley v.
Fearnley, 2 Chitty, R. 108. And in like
manner the surety in a replevin-bond may
be rendered a competent witness for the
plaintiff. Bailey v. Bailey, 1 Bing. 92. And
so of the indorser of a writ, who thereby
becomes surety for payment of the costs.
Roberts v. Adams, 9 Greenl. 9. So in
Indiana, of a prochein amy. Harvey v. Cof-
fin, 5 Blackf 566. See further, Salmon v.
Ranee, 8 S. & R. 311, 814 ; Hall v. Bay-
hes, 15 Pick. 51, 53; Beckley v. Free-
man, Id. 468 ; Allen v. Hawks, 13 Pick.
79 ; McCuUoch v. Tyson, 2 Hawks, 836 ;
infra, § 430; Comstock v. Paie, 3 Rob.
Louis. R. 440.
2 Forrester v. Pigou, 3 Campb. 880 ; 1
M. & S. 9, s. o.
3 Craig V. CundeU, 1 Campb. 381;
Williams v. Stephens, 2 Campb. 301;
Shuttleworth v. Bravo, 1 Stra. 507 ; Powel
V. Gordon, 2 Esp. 735 ; Stewart v. Kip, 5
Johns. 256; Holden v. Heam, 1 Beav.
445. But to disqualify the witness, he
must be legally entitled to payment out of
the fund. Phenix v. Ingraham, 6 Johns.
427 ; Peyton v. Hallett, 1 Caines, 363, 379 ;
Howard v. Chadbourne, 8 Greenl. 461;
Marland v. Jefferson, 2 Pick. 240 ; Wood
V. Braynard, 9 Pick. 322. A mere expec-
tation of payment, however strong, if not
amounting to a legal right, has been
deemed insufficient to render him incom-
petent. Seaver v. Bradley, 6 Greenl. 60.
CHAP. II.]
COMPETENCY OP WITNESSES.
437
creditors may be witnesses to diminish it.^ The same is true of
a legatee, without a release, and also of an heir or distributee, in any
action affecting the estate.^ So, where the immediate effect of the
judgment for the plaintiff is to confirm the witness in the enjoy-
ment of an interest in possession,^ or, to place him in the imme-
diate possession of a right,* he is not a competent witness for the
plaintiff. Neither can a lessor be admitted as a witness, to prove
a right of possession in his lessee to a portion of land claimed as
part of the premises leased.^
§ 393. So where the event of the suit, if it is adverse to the
party adducing the witness, will render the latter liable either to
a third person, or to the party himself, whether the liability arise
from an express or implied legal obligation to indemnify, or from
an express or implied contract to pay money upon that contingency,
the witness is in like manner incompetent. The cases under this
branch of the rule are apparently somewhat conflicting ; and
therefore it may deserve a more distinct consideration. And here
it will be convenient to distinguish between those cases where the
judgment will be evidence of the material facts involved in the
' Butler V. Cooke, Cowp. 70; Ewens
V. Gold, Bull. N. P. 43 ; Green v. Jones,
2 Campb. 411 ; Loyd v. Stretton, 1 Stark.
R. 40; Rudge v. Ferguson, 1 C. & P. 253;
Masters v. Drayton, 2 T. R. 496 ; Clark v.
Kirkland, 4 Martin, 405. In order to ren-
der the bankrupt competent, in such
eases, he must release his allowance and
surpi us ; and he must also have obtained
his certificate, without which he is in no
case a competent witness for his assignees.
Masters v. Drayton, 2 T. R. 496 ; Good-
hay V. Hendry, 1 Mood. & M. 319. And
though his certificate has been allowed
by the competent number of creditors, and
no opposition to its final allowance is anti-
cipated, yet until its allowance by the
Lord Chancellor, he is still incompetent ;
nor will the trial for that purpose be post-
poned. Tenant v. Strachan, 1 Mood. &
M. 377. So, if his certificate has been
finally obtained, yet, if his future efiects
remain liable (as in the case of a second
bankruptcy, where he has not yet paid the
amount necessary to exempt his future
acquisitions), he is still incompetent as a
witness for the ajsignsss, being interested
to increase the fund. Kennet v. Green-
woUers, Pealce's Cas. 3. The same rules
apply to the case of insolvent debtors. De-
lafield V. Preeman, 6 Bing. 294 ; 4 C. &
P. 67, s. u. ; Rudge v. Ferguson, 1 C. &
P. 253. But upon grounds of ;iublic pol-
icy and convenience, a bankrupt is held
inadmissible to prove any fact which is
material to support or to defeat the fiat
issued against him. Nor is a creditor
competent to support the fiat, whether he
has or has not availed himself of the right
of proving under the bankruptcy. See
1 Phil. Evid. 94, 95, 96, and cases there
cited.
2 Hilliard v. Jennings, 1 Ld. Raym.
505; 1 Burr. 424 ; 2 Stark. R. 646 ; Creen
V. Salmon, 3 N. & P. 388 ; Bloor v. Da-
vies, 7 M. & W. 235. And if he is a re-
siduary legatee, his own release of the
debt will not render him competent for the
executor, in an action against ithe debtor;
for he is still interested in supporting the
action, in order to relieve the estate from
the charge of the costs. Baker v. Tyr-
whitt, 4 Campb. 27 ; 6 Bing. 394, per Tin-
dal, C. J.; Matthews v. Smitli, 2 Y. & J.
426; AUington v. Bearcroft, Pealre's Add.
Cas. 212; West v. Randall, 2 Mason, 181 ;
Randall v. PhilUps, 3 Mason, 378; Camp-
bell V. Tousey, 7 Cowen, 64 ; Carlisle o.
Burley, 3 Greenl. 250. Nor is a legatee
competent to testify against the validity
of the will, if it is, on the whole, for hia
interest to defeat it. Roberts v. Trawick,
13 Ala. 68.
n Doe V. Williams, Cowp. 621.
* Rex V. Williams, 9 B. & C. 549
^ Smith V. Chambers, 4 Esp. 164
87*
438 LAW OP ETIDENCE. [PART HI.
issue, and those where it will be evidence only of the amount of
damages recovered, whkh the defendant may be compelled to pay.
In the former class, which will hereafter be considered, the interest
of the party is in the record, to establish his entire claim ; in the
latter, which belongs to the present head, it is only to prove
the amount of the injury he has suffered.
§ 394. Thus, in an action against the principal for damage
occasioned by the neglect or misconduct of Ms agent or servant, the
latter is not a competent witness for the defendant without a
release ; for he is, in general, liable over to his master or employer,
in a subsequent action, to refund the amount of damages which the
latter may have paid. And though the record will not be evidence
against the agent, to establish the fact of misconduct, unless he
has been duly and seasonably informed of the pendency of the suit,
and required to defend it, in which case it will be received as evi-
dence of all the facts found ; ^ yet it will always be admissible to
show the amount of damages recovered against his employer.^
The principle of this rule applies to the relation of master and
servant, or employer and agent, wherever that relation in its
broadest sense may be found to exist ; as, for example, to the case
of a pilot, in an action against the captain and owner of a vessel
for mismanagement, while the pilot was in charge ; ^ or, of the
guard of a coach, implicated in the like mismanagement, in an
action against the proprietor ; * or, of a broker, in an action against
the principal for misconduct in the purchase of goods, which he
had done through the broker ; ^ or, of a sheriff's officer, who had
given security for the due execution of his duty, in an action
against the sheriff for misconduct in the service of process by the
same officer;^ or, of a ship-master, in an action by his owner
against ifnderwriters, where the question was, whether there had
1 Hamilton v. Cutts, 4 Mass. 349 ; Ty- v. Mainwaring, 1 Holt's Cas. 139 ; Booiv
ler V. Ulmor, 12 Mass. 163. See infra, man v. Browne, 1 P. & D. 364 ; Moorish
§§ 52.;, 52r, 538, 539. v. Foote, 8 Taunt. 454.
2 Green v. New Rirer Co. 4 T. R. 589. » Powel v. Hord, 1 Stra. 650; 2 Ld.
" Hawkins v. Finlayson, 3 C. & P. 305. Raym. 1411, s. c. ; Whitehouse v. Atkln-
But the pilot has been held admissible in sonj 3 C. & P. 844 ; Broom v. Bradley, 8
an action by the owners against the under- C. & P. 500. So, the creditor is incompe-
writers, for the loss of the vessel while in tent to testify for the officer, where he is
his charge, on the ground that his interest U.ible over to the latter, if the plaintiff sue-
was balanced. Varin «. Canal Ins. Co. ceeds. Keightley v. Birch, 3 Campb. 521
1 "Wilcox, 223. See also Jewett v. Adams, 8 Greenl. 30
* Whitamore v. "Waterhouse, 4 C. & P. Turner v. Austin, 16 Mass. 181 ; Rice a,
888. Wilkins, 8 Shepl. 558 ; [Howlaud v. Wil'
' Field .,. Mitchell, 6 Esp. 71 ; Gevers letts, 6 Selden, 170.]
CHAP. II.] COMPETENCY OP WITNESSES. 439
been a deviation ; ^ neither of whom are competent to give testi-
mony, the direct legal effect of which will be, to place themselves
in a situation of entire security against a subsequent action. But
the liability must be direct and immediate to the party ; for if the
witness is liable to a third person^ who is liable to the pai-ty, such
circuity of interest is no legal ground of exclusion.^ The liability
also must be legal ; for if the contract be against law, as, for ex-
ample, if it be a promise to indemnify an officer for a violation of
his duty in the service of process, it is void ; and the promisor is
a competent witness, the objection going only to his credibility.^
§ 395. The same principle applies to other cases, where the direct
effect of the judgment will be to create any other legal claim against
the witness. Thus, if he is to repay a sum of money to the
plaintiff, if he fails in the suit he is incompetent to be sworn for
the plaintiff.* So, in an action on a policy of insurance, where
there has been a consolidation rule, an underwriter, who is a party
to such rule, is not a competent witness for others.^ The case is
the same, wherever a rule is entered into, that one action shall
abide the event of another ; for in both these cases all the parties
have a direct interest in the result. And it makes no difference in
any of these cases, whether the witness is called by the plaintiff or
by the defendant; for, in either case the test of interest is the
same ; the question being, whether a judgment, in favor of the
party calling the witness, will procure a direct benefit to the wit-
ness. Thus, in assumpsit, if the non-joinder of a co-contractor is
pleaded in abatement, such person is not a competent witness for
the defendant to support the plea, unless he is released ; for though
if the defence succeeds, the witness will still be liable to another
action, yet he has a direct interest to defeat the present action,
both to avoid the payment of costs, and also to recover the costs of
the defence.^ The case is the same, where, in a defence upon the
merits, a witness is called by the defendant, who is confessedly, or
by his own testimony, a co-contractor, or partner with him in the
subject of the action.''' So, in a suit against one on a joint obliga-
/
1 De Symonds ti. De la Cour, 2 New the defendant, has paid the loss, upon an
Rep. 374. agreement with the assured tliat the
^ Clark V. Lucas, Ry. & M. 32. money should be repaid, if he tailed to
2 Hodsdon v. WiUtins, 7 Greenl. 113. recover against the other underwriters
* Fotheringham v. Greenwood, 1 Stra. Forrester v. Pigou, 1 M. & S. 9 ; 3 Campb,
129 ; Rogers v. Turner, 5 West. Law 380, s. c.
Journ. 406. ^ Young v. Bairnor, 1 Esp. 103; Let-
' The same principle also applies where ferts v. De Mott, 21 Wend. 136.
the underwriter, offered as a witness for ' Birt v. Wood, 1 Esp. 20 ; Goodauro
440 LAW OP EYIDBNCB. [PART HI.
tion, a co-obligor, not sued, is not a compeient witness for the
plaintiff, to prove the execution of the instrument by the defend-
ant ; for he is interested to relieve himself of part of the debt, by
charging it on the defendant.^ And upon a similar principle,
where an action was brought upon a policy of insurance, averred
in the declaration to have been effected by the plaintiffs, as agents,
for the use and benefit and on the account of a third person, it
was held that this third person was not a competent witness for
the plaintiffs ; and that his release to the plaintiffs, prior to the
action, of all actions, claims, &c., which he might have agaiust
them by reason of the policy, or for any moneys to be recovered
of the underwriters, did not render him competent ; neither could
his assignment to them, after action brought, of all his interest in
the policy, have that effect ; for the action being presumed to have
been brought by his authority, he was still liable to the attorney
for the costs.^ So, in an action on a joint and several bond against
the surety, he cannot call the principal obligor to prove the pay-
ment of money by the latter in satisfaction of the debt ; for the
witness has an interest in favor of his surety to the extent of the
costs.^ So, also, where a legatee sued the executor, for the re-
covery of a specific legacy, namely, a bond ; it was held, that the
obligor, having a direct interest in preventing its being enforced,
was not a competent witness to prove that the circumstances,
under which the bond was given, were such as to show that it was
irrecoverable.*
§ 396. It may seem, at the first view, that where the plaintiff
calls his own servant or agent to prove an injury to his property,
while in the care and custody of the servant, there could be no
objection to the competency of the witness to prove misconduct in
the defendant; because, whatever might be the result of the
action, the record would be no evidence against liim in a sub-
I). Breame, Peake's Cas. 174; Cheyne v. quand «. Webb, 16 Johns. 89; Puryiance
Koops, 4 Esp. 112; Evans v. Yeatherd, 2 v. Dryden, 3 S. & R. 402, 407. And see
Bing. 133 ; Hall v. Cecil, 6 Bing. 181 ; Latham v. Kennlston, 13 N. Hamp. R. 203.
Russell V. Blake, 2 M. & G. 373, 381, 382 ; 2 Bell v. Smith, 5 B. & C. 188.
Vanzant v. Kay, 2 Humph. 106, 112. But ' Townsend v. Downing, 5 East, 565,
tills point has in some oases been other- 567, per Lord EUenborough. In an action
wise decided. See Cossham v. Goldney, against the sheriff, for a negligent escape,
2 Stark. R. 413; Blackett v. Weir, 5 B. & the debtor is not a competent witness for
C. 385. See also Poole v. Palmeri 9 M. the defendant, he being li.ible over to tha
& W. 71. defendant for the damages and costs.
• 1 Marshall v. Thraikill, 12 Ohio R. 275; Griffin v. Brown, 2 Pick. 304.
Ripley v. Thompson, 12 Moore, 55 ; * Davies v. Morgan, 1 Beav. 405.
Brown v. Brown, 4 Taunt. 752; Mar-
CHAf, II. J COMPETENCY OF WITNESSES. 441
sequent action by the plaintiff. But still the witness, in such
case, is held inadmissible ; upon the general principle already
mentioned,! in cases where the master or principal is defendant,
namely, that a verdict for the master would place the servant or
agent in a state of security against any action, which, otherwise,
the master might bring against him; to prevent which he is
directly interested to fix the liability on the defendant. Thus, in
an action for an injury to the plaintiff's cart, or coach, or horses,
by negligently driving against them, the plaintiff's own driver or
coachman is not a competent witness for him without a release.^
So, in an action by the shipper of goods, on a policy of insurance,
the owner of the ship is not a competent witness for the plaintiff
to prove the seaworthiness of the ship, he having a direct interest
to exonerate himself from liability to an action for the want of
seaworthiness, if the plaintiff should fail to recover of the under-
writer.^ The only difference between the case where the master
is plaintiff and where he is defendant, is this, that in the latter
case he might claim of the servant both the damages and costs
which he had been compelled to pay ; but in the former, he could
claim .only such damages as directly resulted from the servant's
misconduct, of which the costs of an unfounded suit of his own
would not constitute a part.*
§ 397. Where the interest of the witness arises from liability
over, it is siifficient that he is hound to indemnify the party calling
him, against the consequence of some fact essential to the judg-
ment. It is not necessary, that there should be an engagement
to indemnify him generally against the judgment itself, though
this is substantially involved in the other ; for a covenant of in-
demnity against a particular fact, essential to the judgment, is in
effect a covenant of indemnity against such a judgment. ■ Thus,
the warrantor of title to the property which is in controversy is
1 (S'upra.J 393. This principle is applied v. Coatsworth, 1 C. & P. 645; Wake v.
to all cases where the testimony of the Lock, 5 C. & P. 454. In Sherman v.
witness, adduced by the plaintiff, would Barnes, 1 M. cSs Rob. 69, the same point
discharge him from the plaintiff's demand, was so ruled by Tindal, C. J., upon the
by establishing it against the defendant, authority of Moorish v. Foote, tliough he
Thus, in an iction by A against B for the seems to have thought otherwise upon
board of C, the latter is not a competent principle, and perhaps with better reason.
witness for the plaintiff to prove the claim. ^ ll9theroe v. Elton, Peak's case,- 84,
Enierton v. Andrews, 4 Mass. 653 ; Hod- cited and approved, per Gibbs, C. J., in 8
son V. Marshall, 7 C. & P. 16; [infra, § Taunt. 457.
416.] * Per Tindal, C. J., in Faueourt v. BuU,
2 MUler V. Falconer, 1 Campb. 251 ; 1 Bing. n. c. 681, 688.
Moorish v. Foote, 8 Tiiuat. 454 ; Kerrison
442 LAW OF EVIDENCE. [PART III
generally incompetent as a witness for his vendee, in an action
concerning the title. And it makes no difference in what manner
the liability arises, nor whether the property is real or personal
fcstate. If the title is in controversy, the person who is bound to
make it good to one of the litigating parties against the claim of
the other is identified in interest with that party, and therefore
cannot testify in his favor.^ And if the quality or soundness is
the subject of dispute, and the vendee with warranty has resold the
article with similar warranty, the principle is still the same. If
the effect of the judgment is certainly to render him liable, though
it be only for costs, he is incompetent ; ^ but if it is only to render
it more or less probable that he will be prosecuted, the objection
goes only to his credibility. But whatever the case may be, his
liability must be direct and immediate to the party calling him,
and not circuitous and to some other person, as, if a remote vendor
with warranty is called by the defendant as a witness, where the
article has been successively sold by several persons with the same
warranty, before it came to the defendant.^
§ 398. In order to render the witness liable, and therefore
incompetent, as warrantor of the title, it is not necessary to show
an express contract to that effect ; for an implied warranty is
equally binding. Thus, the vendor of goods, having possession
1 Serle v. Serle, 2 Roll. Abr. 685 ; 21 caUed hia vendor, who had given a simi-
Tin. Abr. 362, tit. Trial, G. f. pi. 1 ; Steers lar warranty, Lord Tenterden, after ex-
V. Cawardine, 8 C. & P. 570. But if the amining authorities, admitted the witness,
vendor sold without any covenant of title, A vendor was admitted, under similar cir-
or with a covenant restricted to claims set ctmistances, by Lord Alvanley, In Briggs
up luider the vendor himself alone, the v. Crick, 5 Esp. 99. But in neither of
vendor is a competent witness for his ven- these cases does it appear that the witness
dee. Busby v. Greenslate, 1 Stra. 445; had been called upon to defend the suit.
Twambly v. Henley, 4 Mass. 441 ; Beidel- In the stiU more recent case of BUss v.
man v. Foulk, 5 Watts, 308 ; Adams v. Mountain, I M. & Rob. 302, after an ex-
Cuddy, 13 Pick. 460 ; Bridge v. Eggleston, amination of various authorities, Alderson,
14 Mass. 245; Davis v. Spooner, 3 Pick. J., held the vendor incompetent, on the
284; Lathrop v. Muzzy, 5 Greenl. 4-50. ground that the effect of the judgment for
2 Lewis V. Peake, 7 Taunt. 153. In the defendant would be to reUeve the wi^
this case the buyer of a horse with war- ness from an action at his suit.
ranty resold him with a similar warranty, ^ Clark v. Lucas, Ry. & M. 32 : 1 C. &
and, being sued thereon, he gave notice P. 156 ; Briggs v. Crick, 5 Esp. 99 ; Mar-
of the action to his vendor, offering him tin v. Kelly, 1 Stew. Ala. R. 198. Where
the option of defending it ; to which hav- the plaintiff's goods were on the wagon
ing received no answer, he defended it of a carrier, which was driven by the car-
himself, and failed ; it was holden, that he rier's servant ; and the goods were alleged
was entitled to recover of his venjlor the to be injured by reason of a defect in the
costs of defending that action, as part of highway'; it was held, in an action against
the damages he had sustained by the false the town for this defect, that the carrier's
warranty. In the later case of Baldwin ti. servant was a competent witness for the
Dixon, 1 M. & Rob. 59, where the defend- owner of the goods. Littlefield v. Port
ant, in an action on a warranty of a horse, land, 13 Sliepl. 37.
CHAt . n.] COMPETENCY OP WITNESSES. 44S
and selling them as his own, is held bound in law, to warrant the
title to the vendee ; ^ and therefore he is generally not competent
as a witness for the vendee jn support of the title.^ This implied
■warranty of title, however, in the case of sales by sheriffs, execu-
tors, administrators, and other trustees, is understood to extend
no farther than this, that they do not know of any infirmity in
their title to sell in such capacity, and therefore they are in general
competent witnesses.^
§ 399. In regard to parties to hills of exchange and negotiable
promissory notes, we have already seen that the persons who have
put them into circulation by indorsement are sometimes held
incompetent witnesses, to prove them originally void.* But, sub-
ject to this exception, which is maintained on grounds of public
policy, and of thg interest of trade, and the necessity of confidence
in commercial transactions, and which, moreover, is not every-
where conceded, parties to these instruments are admitted or
rejected, in suits between other parties, like any other witnesses,
according as they are interested or not in the event of the suit.
In general, their interest will be found to be equal on both sides ;
and in all cases of halanced interest, the witness, as we shall here-
after see, is admissible.^ Thus, in an action against one of several
1 2 Bl. Comm. 451. See also 2 Kent, from the plaintiff, with authority to sell
Comm. 478, and cases there cited. See him after a certain day, and that he sold
also Emerson v. Brigham, 10 Mass. 203 him accordingly to the defendant ; he was
(Rand's edit.), note. held a competent witness. Nix v. Cut-
2 Heerraance v. Vernoy, 6 Johns. 5 ; ting, 4 Taunt. 18. So, in assumpsit, for
Hale V. Smith, 6 Greenl. 416 ; Baxter v. the price of wine sold to the defendant,
Graham, 5 Watts, 418. In the general where the defence was, that he bought it
doctrine, stated in the text, that where the of one Faircloth, and not of tlie plaintiff,
vendor is liable over, though it be only Faircloth was held a competent witness
for costs, he is not a competent witness for the defendant to prove that he himself
for the vendee, the Enghsh and American purchased the wine of the plaintiff, and
decisions agree. And it is bcheved that sold it to the defendant, who had paid liim
the weight of English authority is on the the price. Labalastier v. Clark, 1 B. &
side of the American doctrine, as stated Ad. 899. So, the defendant's vendor has
in the text, namely, that the vendor in been held competent, in trover, to prove
possession stipulates that his title is good, that the goods were his own, and had
But where the witness claims to have de- been fraudulently taken from him by the
rived from the plaintiff the same title plaintiff. "Ward v. Wilkinson, 4 B. & Aid.
wliich he conveyed to the defendant, and 410, where Nix v. Cutting is explained by
so is accountable for the value to the one Holroyd, J. See also Baldwin v. Dixon,
party or the other, in either event of the 1 M. & Rob. 59 ; Briggs v. Crick, 5 Esp.
suit, unless he can discharge himself by 99, and Mr. Starkie's observations on
other proof, he is a competent witness for some of these cases ; 1 Stark. Evid. 109,
the defendant; unless he has so conducted note (nj ; 2 Stark. Evid. 894, note (d).
as to rmder himself accountable to the ^ Peto v. Blades, 5 Taunt. 657 ; Mock-
latter for the costs of the .suit, as part of bee V. Gardiner, 2 Har. & Gill, 176;
the damages to be recovered against him. Petermans v. Laws, 6 Leigh's R. 523, 529.
Thus, where in trover for a horse, the de- * Supra, §§ 384, 385.
fendant called his vendor to prove that the ^ Infra, § 420.
horse was pledged to him for a debt dup
444 LAW OP EYIDENCB, [PABT m.
makers of a note, another maker is a competent witness for the
plaintiff, as he stands indifferent ; for if the plaintiff should recover
in that action, the witness will be liable to pay his contributory
share ; and if the plaintiff should fail in that action, and force the
witness to pay the whole, in another suit, he will still be entitled
to contribution .1 So, in an action against the acceptor of a bill,
the drawer is in general a competent witness for either party ; for
if the plaintiff recovers, the witness pays the bill by the hands of
the acceptor ; if- not, he is liable to pay it himself. ^ And in an
action by the indorsee of a note against the indorser, the maker is
a competent witness for the plaintiff; for if the plaintiff prevails,
the witness will be liable to pay the note to the defendant ; and if
the defendant prevails, the witness will be liable, to the same
extent, to the plaintiff.*
§ 400. And though the testimony of the witness, by defeating
the present action on the bill or note, may prohdbly deter the holder
from proceeding in another action against the witness, yet this only
affords matter of observation to the jury, as to the credit to be given
to his testimony. Thus, in an action by the indorsee of a note
against the indorser, the maker is a competent witness for the
defendant, to prove that the date has been altered.* And in an
action by the indorsee of a bill against the drawer or acceptor, an
indorser is, in general, a competent witness for either party ; for
the plaintiff, because, though his success may prevent him from
calling on the indorser, it is not certain that it will ; and whatever
part of the bill or note he may be compelled to pay, he may recover
again of the drawer or acceptor ; and he is competent for the de-
fendant, because if the plaintiff fails against the drawer or acceptor,
he is driven either to sue the indorser or abandon his claim.^
§ 401. But if the verdict would necessarily benefit or affect the
witness, as if he would be liable, in one event, to the costs of the
1 York V. Blott, 5 M. & S. 71. He has ' Venning v. Shuttleworth, Bayley on
also been lielil admissible for the defend- Bills, p. 593 ; Hubbly v. Brown, 1R Johns.
ant. Tliompson v. Armstrong, 5 Ala. 70. But the maker of an aoeonimodation
383. But see the cases cited supra, § 395, note, made for his own benefit, is incom-
notes, and VI Obio R. 279. petent. Pierce v. Butler, 14 Mass. 303,
2 Dickinson v. Prentice, 4 Esp. 82; 312; infra, % in.
Lowber v. Sliaw, 5 Mason, 241, per Story, * Levi v. Essex, MSS., 2 Esp. Dig.
J. ; Ilich V. Topping, Peake's Cas. 224. 708, per Lord Mansfield ; Chitty on Bills,
But if he is hable in one event for the p. 654, note (b), (8th edit.)
costs, lie hiis an interest on tliat side, and ' Bayley on Bills, 594, 595 (2d Am.
is inadmissible. Scott v. McLellan, 2 edit, by Pliillips & Sewall). And see Bay
Greeul. 199; supra, § 391, and note (3). v. Gunn, 1 Denio, 11. 108.
CHAP. 11. J COMPETENCY OP WITNESSES. 44.6
action, then, without a release, which will annul his interest in
the event, he will not be admissible as a witness on the side of the
party in whose favor he is so interested. Tlius, the party for
whose use an accommodation note or bill has been drawn or
accepted, is incompetent as a witness, when adduced by him who
has lent his own name and liability for the accommodation of the
witness.^ So, in an action against the drawer of a bill of exchange,
it has been held, that the, acceptor is not a competent witness
for the defendant, to prove a set-off; because he is interested in
lessening the balance, being answerable to the defendant only for
the amount which the plaintiff may recover against him.^
§ 402. Where a liability to costs in the suit arises in any other
manner, it is still an interest sufficient to render the witness in-
competent.^ Thus, where the witness called by the plaintiff had
himself employed the attorney, to whom he had made himself
liable for the costs, he was held incompetent, without a release
from the attorney.* So, where he had given the plaintiff a bond
of indemnity against the costs of the suit, he was held incompetent
as a witness for the plaintiff, as to any point arising in the action ;
even such as the service of a notice on the defendant, to produce
certain papers at the trial.^ Thus, also, where an attorney,^ or,
an executor ,■!■ or the tenant, on whose premises the goods of the
plaintiff in replevin had been distrained for rent,^ or the principal in
an administration-bond, the action being only against the surety,®
have been found personably liable for the costs of tlie suit, they
have been held incompetent as witnesses on the side of the party
in whose favor they were thus interested. But if the contract of
indemnity is illegal, as, for example, if it be a contract to bear
1 Jones V. Brooke, 4 Taint. 463 ; lected in Bayley on BiUa, p. 586-599 (2d
$upra, § 391, and note. See also Bottom- Am. edit, by Phillips & Sewall), with the
ley V. Wilson, 3 Stark. R. 148 ; Harman notes of the learned editors ; Chitty on
V. Lasbrey, Holt's Cas. 890; Edmonds v. Bills, 654-659 (8th edit.) ; 2 Stark. Evid.
Lowe, 8 B. & C. 407 ; Hall v. Cecil, 6 179, 182 (6th Am. edit, with Metcalf's,
Bing. 181 ; Scott v. McLellan, 2 Greenl. Ingraham's, and Gerhard's notes) ;
199 ; Pierce v. Butler, 14 Mass. 303, 812 ; Thayer v. Grossman, 1 Metoalf, E. 416.
Southard v. Wilson, 8 Shepl. 494. » See supra, § 395.
2 Mainwaring v. Mytton, 1 Stark. B. * York v. Gribble, 1 Esp. 319; Mar-
83. It is deemed unnecessary any fur- land v. Jefferson, 2 Pick. 240; Handley
ther to pursue this subject in this place, v. Edwards, 1 Curt. 722.
or particularly to mention any of the nu- ' Butler v. Warren, 11 Johns. 57.
merous cases, in which a party to a bill or " Chadwick v. Upton, 8 Pick. 442.
note has been held competent, or other- ' Parker v. Vincent, 3 C. & P. 88.
wise, on the ground of being free from ' Rush v. Flickwire, 17 S. & R. 82.
interest, or interested,' under the partic- ' Owens v. CoUinson, 3 GiU & Johns,
ular circumstances of the case. It will 26. See also Cannon v. Jones, 4 Hawks,
suffice to refer the reader to the cases col- 368 ; Riddle v. Moss, 7 Cranoh, 206.
TOi.. I 88
446 LAW OF ETIDENCB. [PABT III.
each other harmless in doing wrong, it creates no legal liability
to affect the witness.^ ,
§ 403. This doctrine is applied in the same manner in eriminal
cases, where the witness has a direct, certain, and immediate
interest in the result of the prosecution. Thus, in cases of sum-
mary convictions, where a penalty is imposed by statute, and the
whole or a part is given to the informer or prosecutor, who be-
comes entitled to it forthwith upon the conviction, he is not, at
the common law, a competent witness for the prosecution.^ So,
in a prosecution under the statutes for forcible entry, where the
party injured is entitled to an award of immediate restitution of
the lands, he is not a competent witness.^ This rule, however,
is subject to many exceptions, which will hereafter be stated.*
But it may be proper here to remark, that, in general, where the
penalty or provision for restitution is evidently introduced for
the sake of the party injured, rather than to insure the detection
and punishment of the offender, the party is held incompetent.^
§ 404. Having thus briefly considered the subject of disqualifi-
cation, resulting from a direct, certain, and immediate interest in
the event of the suit, we come now to the second branch of the
'jeneral rule, namely, that of interest in the record, as an instrument
of evidence in some other suit, to prove a fact therein alleged.
The record of a judgment, as hereafter will be seen, is always
admissible, even in an action between strangers, to prove the fact
that such a judgment was rendered, and for such a sum ; but it is
not always and in all cases admissible to prove the truth of any
fact, on which the judgment was founded. Thus the record of
a judgment against the master, for tue negligence of his servant,
would be admissible in a subsequent action by the master against
the servant, to prove the fact, that such a judgment had been
recovered against the master for such an amount, and upon such
and such allegations ; but not to prove that either of those allega-
tions was true ; unless in certain cases, where the servant or agent
has undertaken the defence, or, being bound to indemnify, has
'■ Humphreys v. Miller, 4 C. & P. 7, subsequent ciyil action, he is not an in-
per Lord Tenterden ; Hodson v. Wilkins, competent witness upon the indictment.
7 Greenl. 113. Eex v. Luckup, Willes, 425, n. ; 9 B. &
2 Rex V. Williams, 9 B. & C. 549 ; C. 557, 558.
Commonwealth v. PauU, 4 Pick. 251 ; 8 jjex v. Bevan, Ey. & M. 242.
Eex V. Tilley, 1 Stra. 316 ; 2 Euss. on * See infia, § 412.
Crimes, 601, 602. But where the penalty 5 Rgx v. Williams, 9 B. & C. 549, pe'
is to be recovered by the witness in a Bayley, J.
CHAP. II.J COMPETENCY OP WITNESSES. 44T
been dtily required to assume it. But under the present head are
usually classed only those cases in which the record is admissible
in evidence for or against the witness, to establish the facts therein
alleged or involved, in order to acquire a benefit or repel a loss ; ^
and it is in this view alone that the subject will now be con-
sidered.
§ 405. The usual and clearest illustration of this branch of the
rule is the case of an action brought by or against one of several
persons, who claim a customary right of common, or some other
species of customary right. In general, in all cases depending on
' the existence of a particular custom, a judgment establishing that
custom is evidence, though the parties are different. Therefore,
no person is a competent witness in support of such custom, who
would derive a benefit from its establishment ; because the record
would be evidence for him in another suit, in which his own right
may be controverted. Thus, where the plaintiff prescribed for
common of pasture upon Hampton Common, as appurtenant to his
ancient messuage, and charged the defendant with neglect to
repair the fence ; it was held, that another commoner, who claimed
a similar prescription in right of another tenement, was not a
competent witness to prove the charge ; ^ and d fortiori he is not,
where the prescription is, that all the inhabitants of the place have
common there.^ Thus, also, an' inhabitant of a town is not a com-
petent witness to prove a prescription for all the inhabitants to
dig clams in a certain place ; * nor to prove a prescriptive right
of way for all the inhabitants.^ So, where the right to a seat in
the common council of a borough was in controversy, and it was
insisted that by prescription no person was entitled, unless he
was an inliabitant and also had a burgage tenure; it was held,
that, though a person having but one of these qualifications was
a competent witness to prove the prescription, one who had them
both was not ; for he would thereby establish an exclusive right
in favor of himself.^ So, where a corporation was lord of a manor,
1 1 Stark. Evid. 114, 115 ; Hunter v. statutes which render the inhabitants of
King, 4 B. & Aid. 210. towns competent witnesses, where the
2 Anscomb v. Shore, 1 Taunt. 261. corporation is a party, or is interested, ap-
See also Parker v. Mitchell, 11 Ad. & El. ply only to cases of corporate rights or
788. interest, and not to cases of individual
* Hockley v. Lamb, 1 Ld. Kaym. 731. and private interest, though these may
* Lufkin V. Haskell, 3 Pick. 856; extend to every inhabitant. See supra,
Moore v. GrifSn, 9 Shepl. 350. [But see § 331.
Look V. Bradley, 13 Met. 369, 372.] ^ Stevenson v. Nevinson, Mayor, &c.,
' Odiorne v. Wade, 8 Pick. 518 The 2 Ld. Eaym. ISS.H
448 LAW OP EVIDENCE. [PAET HI.
and had approved and leased a part of the common, a freeman
was held incompetent to prove that a sufficiency of common was
left for the commoners.^ So, one who has acted in breach of an
alleged custom by the exercise of a particular trade, is not a com-
petent witness to disprove the existence of such custom.^ Nor is
the owner of property within a chapelry a competent witness to
disprove an immemorial usage, that the land-owners there ought
to repair the chapel.^ And it is proper here to add, that in order
to exclude a witness, where the verdict depends on a custom,
which he is interested to support, it seems to be necessary that
the custom should be stated on the record ; * for it is said, that the ,
effect of the verdict to support the custom may be aided by evi-
dence.^
§ 406. There are some cases, in which the interest of the witr
ness falls under hoih branches of this rule, and in which he has
been rejected, sometimes on the ground of immediate interest in
the eVent of the suit, and sometimes on the ground of interest
in the record, as an instrument of evidence. Such is the case of
the tenant in possession 'in an action of ejectment ; who is held
incompetent either to support his landlord's title,^ or, to pro^e
that himself, and not the defendant, was the tenant in possession
of the land.'' And where a declaration was served on two tenants,
in possession of different parts of the premises, and a third person
entered into a rule to defend alone, as landlord, it was held, that
neither of the tenants was a competent witness for the landlord,
to prove an adverse possession by the other of the part held by
him ; for as they were identified with the landlord in interest, the
judgment for the plaintiff would be evidence of his title, in a
future action against them for the mesne profits.^
1 Burton v. Hinde, 5 T. E. 174. it still is not in the United States, to ae-
^ The Carpenters, &c., of Shrewsbury terniine with precision in which of these
t). Haward, 1 Doug. 374. modes the witness was interested.' But
8 Rhodes v. Ainsworth, 1 B. & Aid. by Stat. 3 & 4 W. IV. c. ii, §§ 26, 27, the
87. See also Ld. Palmouth ». George, 5 objection arising from interest in the rec.
Bing. 286. ord, as a future instrument of evidence, is
* Ld. Talmouth v. George, 5 Bing. done away; the court being directed,
286 ; Stevenson v. Nevinson et al., 2 Ld. whenever this objection is taien, to in-
Baym. 1353. dorse the name of the witness on the rec-
6 1 Stark. Evid. 115, note (e). ord or document on which the trial shall
8 Doe V. Williams, Cowp. 621 ; Bourne be had, and of the party on whose behalf
V. Turner, 1 Stra. 682. he was called to testify ; after which the
' Doe V. Wilde, 6 Taunt. 183; Doe a. verdict or judgment in that action shall
Bingham, 4 B. & Aid. 672. never be evidence for or against the wit-
. * Doe V. Preece, 1 Tyrwh. 410. Por- ness, or any one claiming under him.
merly, it was not material in England, as The practice under this statute seems to
CHAP. II.] COMPETENCY OF WITNESSES. 449
§ 407. So, in criminal oases, a person interested in the record
is not a competent witness. Thus an accessory, wliether before or
after the fact, is not competent to testify for the principal.^ And
where several were indicted for a conspiracy, the wife of one was
held not admissible as a witness for the others ; a joint ofience
being charged, and an acquittal of all the others being a ground
of discharge for her husband.^ Nor is the wife of one joint tres-
passer a competent witness for another, even after the case is
already clearly proved against her husband.*-
§ 408. The extent and meaning of the rule, by which an inter-
ested witness is rejected as incompetent, maybe further illustrated
by reference to some cases, in which the witness has been deemed
not disqualified. We have already seen that mere wishes or bias
on the mind of the witness in favor of the party producing him,
or strong hopes or expectations of benefit, or similarity of situar
tion, or any other motive, short of an actual and legal interest in
the suit, will not disqualify the witness.* Such circumstances
may influence his mind, and affect his opinions, and perhaps may
tempt him at least to give a false color to his statements ; and
therefore they should be carefully considered by the jury, in
determining the weight or credibility to be given to his testimony ;
but they are not deemed sufficient to justify its utter exclusion
from the jury. It may now be further observed, that a remote,
contirv^ent, and uncertain interest, does not disqualify the witness.
Thus, a paid legatee of a specific sum, or of a chattel, is a com-
petent witness for the executor; for though the money paid to
a legatee may sometimes be recovered back, when necessary for
the payment of paramount claims, yet it is not certain that it wiU
be needed for such purpose ; nor is It certain, if the legacy has
not been paid, that there are not other funds sufficient to pay it.^
So, also, a creditor of an estate, not in a course of liquidation
as an insolvent estate, is a competent witness for the adminis-
trator ; for he stands in the same relation to the estate now, as he
be not yet completely settled; but the accessory. The People v. Lohman, 2
cases which have arisen, and which it is Barb. S. C. K. 216.
deemed unnecessary here to examine, are ^ Rex v. Looker, 5 Esp. 107 ; 2 Euss.
stated and discussed in Phil. & Am. on on Crimes, 602; supra, 403; [Common-
Evid. pp. 108-113 ; 1 Phil. Evid. 114^117. wealth v. Robinson, 1 Gray, 555.]
See also Poole v. Palmer, 9 M. & W. * Hawkesworth v. Showier, 12 M. &
71. W. 45.
1 1 Stark. Evid. 130. But the princi- * Supra, §§ 387, 389.
pal IS a competent witness against the ° Clarke v. Gannon, By. & H. 81.
38*
450 LAW OF EVIDENCE. [PABT HI.
did to the debtor in his lifetime ; and the probability that his tes-
timony may be beneficial to himself, by increasing the fund out
of which he is to be paid, is equally remote and contingent in both
cases.i It is only where his testimony will certainly have that
eifect, as in the case of a creditor to an insolvent estate, or
a residuary legatee, or a distributee, that the witness is rendered
incompetent.^ Yet in these cases, and in the case of a creditor
to a bankrupt estate, if the legatee,, distributee, or creditor has
assigned his interest to another person, even equitably, his com-
petency is restored.^ In an action of covenant against a lessee,
for not laying the stipulated quantity of manure upon the land ;
upon a plea of performance, a sub-lessee of the defendant is a
competent witness for him, to support the plea ; * for it does not
appear that he is under the like duty to the defendant, or that
a recovery by the latter would place the witness in a state of
security against a similar action.^ Upon the same principle, a
defendant against whom a civil action is pending is a competent
witness for the government on the trial of an indictment for per-
jury, against one who has been summoned as a witness for the
plaintiff in the civil action.^
§ 409. Thus, also, the tenant in possession is a competent wit-
ness to support an action on the case, brought by the reversioner,
for an injury done to the inheritance .'' So, in an action against
an administrator for a debt due by the intestate, a surety in the
administrator's bond in the Ecclesiastical court is a competent
witness for him, to prove a tender ; for it is but a bare possibility
that an action may be brought upon the bond.^ So, in an action
against a debtor, who pleads the insolvent debtor's act in discharge,
another creditor is a competent witness for the plaintiff, to prove
that, in fact, the defendant is not within the operation of the act.^
An executor or trustee under a will, taking no beneficial interest
1 Paull V. Brown, 6 Esp. 34 ; Davies v. ^ Hart's case, 2 Eob. Virg. Eep. 819.
Davies, 1 Mood. & M. 345 ; Carter v. ' Doddington v. Hudson, 1 Bing. 257 ;
Pierce, 1 T. R. 164. An annuitant under [Schnable v. Koehler, 28 Penn. St. R.
the will is also a competent witness for the 181.] Where the defence rested on sev-
executor, in an action against him for the era! cognizances, it was held, that the
debt of the testator. Nowell v. Davies, 5 person under whom one of the cogni-
B. & Ad. 368. zances was made, was competent to prove
2 Supra, § 392. matters distinct from and independent of
8 Heath v. Hall, 4 Taunt. 326; Boyn- that particular cognizance. Walker u
ton V. Turner, 13 Mass. 891. Giles, 2 C. & K. 671.
* Wishaw V. Barnes, 1 Campb. 341 ^ Carter v. Pierce, 1 T. R. 163.
» Supra, § 394. ' Norcott v. Orcott. 1 Stra. 650.
CHAP. II.] COMPETENCY OP WITNESSES. 451
under the will, is a good attesting witness.^ And in an action
against an administrator upon a bond of the intestate, and a plea
of plene administravit by the payment of another bond debt, the
obligee in the latter bond is a competent witness to support the
plea.^ A trespasser, not sued, is a competent witness for the plain-
tiff, against his co-trespasser .^ In a qui tarn action, for the penalty
for taking excessive usury, the borrower of the money is a com-
petent witness for the plaintiff. * A person who has been arrested
on mesne process and suffered to escape, is a competent witness
for the plaintiff, in an action against the sheriff for the escape ; ■''
for though the whole debt may be recovered against the sheriff,
yet, in an action on the judgment against the original debtor, the
latter can neither plead in bar, nor give in evidence, in mitigation
of damages, the judgment recovered against the sheriff. And one
who has been rescued is a competent witness for the defendant, in
an action against him for the rescue.^ So, a mariner, entitled to
a share in a prize, is a competent witness for the captain in an
action brought by him for part of the goods taken.'' In all these
cases, it is obvious that whatever interest the witness might have,
it was merely contingent and remote ; and, on this ground, the
objection has been held to go only to his credibility.
§ 410. It is hardly necessary to observe that, where a witness is
produced to testify against Ms interest, the rule, that interest dis-
qualifies, does not apply, and the witness is competent.
§ 411. The general rule, that a witness interested in the subject
of the suit, or in the record, is not competent to testify on the
side of his interest, having been thus stated and explained, it
remains for us to consider some of the exceptions to the rule,
1 Phipps V. Pitcher, 6 Taunt. 220; ^ guu. n. P. 143 ; 1 Ld. Eaym. 745.
Comstock V. Hadlyme, 8 Conn. R. 254. ' Morris v. Daubigny, 5 Moore, 319.
In Massachusetts, the executor has been In an action against the printer of a news-
held incompetent to prove the will in the paper for a libel, a proprietor of the paper
court of Probate, he being party to is a competent witness, as he is not Uable
t'le proceedings, and liable to the cost of to contribution. Moscati v. Lawson, 7 C.
1 3 trial. Sears v. DiUingham, 12 Mass. & P. 52.
Bu8. But the will may be proved by the * Smith v. Prager, 7 T. R. 60.
(ostimony of the other witnesses, he hav- ^ Cass v. Cameron, Peake's Cas. 124;
iiig been a competent witness at the time Hunter v. IGng, 4 B. & Aid. 210. If the
of attestation. Ibid. Generally speak- escape was committed while the debtor
ing, any trustee may be a witness, if he was at large, under a lond for the prison
has no interest in the matter ; but not liberties, the jailer, who took the bond,
otherwise. Main v. Newson, Anthon, 11 ; is a competent witness for the sheriff.
Johnson v. Cunningham, 1 Ala. 249 ; Stewart v. ICip, 5 Johns. 256.
George v. Kimball, 24 Pick. 234; Nor- « Wilson v. Gary, 6 Mod. 211.
wood V. Morrow, 4 Dev. & Bat. 442. ' Anon. Skin. 403. .
452 LAW OP EVIDENCE. [PABT IH.
which, for various reasons, have been allowed. These exceptions
chiefly prevail either in criminal cases, or in the affairs of trade
and commerce, and are admitted on grounds of public necessity and
convenience, and to prevent a failure of justice. They may be
conveniently classed thus : (1.) Where the witness, in a criminal
case, is entitled to a reward, upon conviction of the offender; —
(2.) Where, being otherwise interested, he is made competent by
statute; — (3.) The case of agents, carriers, factors, brokers, or
servants, when called to prove acts done for their principals, in the
course of their employment ; and — (4.) The case of a witness,
whose interest has been acquired after the party had become en-
titled to his testimony. To these a few others may be added, not
falling under either of these heads.
§ 412. And in the first place, it is to be observed, that the cir-
cumstance that a witness for the prosecution will be entitled to
a reward from the government upon conviction of the offender, or to
a restoration, as owner of the property stolen, or to a portion of
the fine or penalty inflicted, is not admitted as a valid objection to
his competency. By the very statute, conferring a benefit upon
a person, who, but for that benefit, would have been a witness, his
competency is virtually continued, and he is as much a witness
after that benefit, as he would have been before. The case is clear
upon grounds of public policy, with a view to the public interest,
and because of the principle on which rewards are given. The
public has an interest in the suppression of crime, and the convic-
tion, of criminals ; it is with a view to stir up greater vigilance in
apprehending, that rewards are given; and it would defeat the
object of the legislature, to narrow the means of conviction, by
means of those rewards, and to exclude testimony, which otherwise
would have been admissible.^ The distinction between these ex-
cepted cases, and those which fall under the general rule, is, that
in the latter, the benefit resulting to the witness is created chiefly
for his own sake, and not for public purposes. Such is the case of
certain summary convictions heretofore mentioned.^ But where it
is plain, that the infliction of a fine or penalty is intended as a
punishment, in furtherance of public justice, rather than as an
indemnity to the party injured, and that the detection and con-
1 Eex V. Williams, 9 B. & C. 549, 556, per Bayley, J. See also 1 Gilb. Eyid. by
Loflt, 245-260.
3 St^pra, § 403.
CHAP. II.] COMPETENCY OP WITNESSES. 453
viction of the offender are the objects of the legislature, the case
■will be within the exception, and the person benefited by the con-
viction will, notwithstanding his interest, be competent.^ If the
reward to which the witness will be entitled has been offered by
a private individual, ihQ rule is the same, the witness being still
competent ; but the principle on which it stands is different ;
namely, this, that the public have an interest upon public grounds,
in the testimony of every person who knows any thing as to a crime ;
and that nothing which private individuals can do will take away
the public right.^ The interest, also, of the witness is contingent ;
and, after all, he may not become entitled to the reward.
§ 413. The reason of this exception extends to, and accordingly
it has been held to include, the cases where, instead of a pecuniary
reward, a pardon or exemption from prosecution is offered by statute
to any person participating in a particular offence, provided another
of the parties should be convicted upon his evidence. In such
cases, Lord Ellenborough remarked, that the statute gave a parlia-
mentary capacitation to the witness, notwithstanding his interest
in the cause ; for it was not probable that the legislature would
intend to discharge one offender, upon his discovering another, so
that the latter might be convicted without intending that the dis-
coverer should be a competent witness.^
§ 414. And in like manner, where the witness will directly
derive any other benefit from the conviction of the offender, he is
still a competent witness for the government, in the cases already
mentioned. Formerly, indeed, it was held that the person whose
name was alleged to be forged, was not admissible as a witness
against the prisoner, on an indictmemt for the forgery, upon the
notion that the prosecution was in the nature of a proceeding in
rem, and that the conviction warranted a judicial cancellation of
the instrument. And the prosecutor in an indictment for perjury
has been thought incompetent, where he had a suit pending, in
^ Rex V. ■Williams, 9 B. & C. 549, 560, Moulton, 9 Mass. 30; Rex v. Teasrlale, 3
per Bayley, J. See also the case of the Esp. 68, and the cases cited in Mr. Day's
Rioters, 1 Leach, Cr. Cas. 353, note (a), note ; Salisbury v. Connecticut, 6 Conn,
where the general question of the admis- 101.
sibility of witnesses, to whom a reward ^ 9 B. & C. 556, per Bayley, J.
was offered by the government, being sub- ^ Heward v. Shipley, 4 East, 180, 183.
mitted to the twelve judges, was resolved See also Rex v. Rudd, 1 Leach, Cr. Cas.
in the affirmative. McNally's Evid. p. 151, 156-158 ; Bush v. Railing, Sayer,
61, Rule 12; United States v. Murphy, 289; Mead w. Robinson, 'Willes, 422; Sufr
16 Peters, R. 203 ; United States v. 'Wil- ton v. Bishop, 4 Burr. 2283.
son, 1 Baldw. 99; Commonwealth v.
454 LAW OP EVIDENCE. [PART III.
which the person prosecuted was a material witness against liim,
or was defendant against him in a suit in equity, in whicli his,
answer might be evidence. But tliis opinion as to cases of perjury
has since been exploded ; and the party is, in all such cases, held
admissible as a witness, his credibility being left to the jury. For
wherever the party offers as evidence, even to a collateral point,
a record which has been obtained on his own testimony, it is not
admitted ; and moreover, the record in a criminal prosecution is
generally not evidence of the facts in a civil suit, the parties not
being the same.^ And as to the person whose name has been
forged, the unsoundness of the rule, by which he was held incom-
petent, was tacitly conceded in several of the more recent cases,
which were held not to be within the rule ; and at length it was
repealed in England by an express statute,^ which renders the
party injured a competent witness in all criminal prosecutions for
forgery. In America, though in some of the earlier cases, the old
English rule of exclusion was followed, yet the weight of authority,
including the later decisions, is quite the other way, and the wit-
ness is now almost universally held admissible.^
§ ilt). The second class of cases, in which the general rule of
incompetency by reason of interest does not apply, consists of ex-
ceptions created by express statutes, and which otherwise would
not fall within the reason of the first exception. Of this sort are
cases, where the informer and prosecutor, in divers summary con-
victions and trials for petty offences, is, by the statutes of different
states, expressly made a competent witness, notwithstanding his
interest in the fine or forfeiture ; but of which the plan of tliis
Treatise does not require a particular enumeration.
1 Gilb. Evid. byLoffl, pp. 33, 34; Bull, indictment. Hex v. Hulme, 7 C. &iP. S.
N. P. 232, 245 ; Eex v. Boston, 4 East, But quaere, and see Eex v. Boston, 4 East,
572 ; Abrahams v. Bunn, 4 Burr. 2251. 572 ; supra, § 362. In seyeral of the
See further, infra, § 537. United States, the party injured, or in-
2 9 Gteo. iV^., c.'B2. tended to be injured, or entitled to satis-
' "Rcsp'iblica v. Keating, 1 Dall. 110; faction for the injury, or liableifo pay the
Peniisylvania v. Earrel, Addis. 246; The costs of the prosecution, is by statute
I'eople I.-. Howell, 4 Johns. 296, 302 ; The ■made a competent witness upon a criminal
People V. Dean, 6 Cowen, 27 ; Common- prosecution for the offence. See Missouri
wealth V. Erost, 5 Mass. 53 ; Common- Kev. Stat. 1845, ch. 138, § 22 ; lUimis
wealth y. Waite, Id. 261; The State v. Eev. Stat. 1833, Crim. Code, §§ 154, 169,
Stanton, 1 Iredell, 424 ; Simmons v. The pp. 208, 212 ; California Eev. Stat. 1850,
State, 7 Ham. 116. Lord Denm.in is re- ch. 99, § 13. In New Hampshire, no per-
ported to have ruled, at nisi prius, that son is disqualified as a witness in a crim-
where the prosecutor, in an indictment inal prosecution by reason of interest,
for perjury, expected that the prisoner "except tlie respondent." Eev. Stat,
would be called as a witness against him 1842, ch. 225, §. 17. As to the mode of
in a civil action about to be tried, he was examining the prosecutor, in a trial for
mcompetent as a witness to support the forgery, see post, vol. 3, § 106, n.
CHAP. II.J COMPETBNOT OP WITNESSES. 455
§ 416. The third class of cases, excepted out of the general rule,
is that of agents, carriers, factors, brokers, and other servants, when
offered to prove the making of contracts, the receipt or payment
of money, the receipt or delivery of goods and other acts done
■within the scope of their employment. This exception has its
foundation in public convenience and necessity ; ^ for otherwise,
affairs of daily and ordinary occurrence could not be proved, and
the freedom of trade and commercial intercourse would be incon-
veniently restrained. And it extends, in principle, to every spe-
cies of agency or intervention, by which business is transacted;
unless the case is overborne by soiftie other rule. Thus, where
the acceptor of a bill of exchange was also the agent of the de-
fendant, who was both drawer and indorser, he was held incom-
petent in an action by the indorsee, to prove the terms on which
he negotiated the bill to the indorsee, in order to defeat the action,
though the facts occurred in the course of his agency for the
defendant, for whose use the bill was negotiated ; it being apparent
that the witness was interested in the costs of the suit.^ But in
cases not thus controlled by other rules, the constant course is to
admit the witness, notwithstanding his apparent interest in the
event of the suit.^ Thus, a porter, a journeyman, or salesman, is
admissible to prove the delivery of goods.* A broker, who has
effected a policy, is a competent witness for the assured, to prove
any matters connected with the policy; even though he has an
interest in it arising from his lien.^ A factor, who sells for the
plaintiff, and is to have a poundage on the amount, is a competent
witness to prove the contract of sale.^ So, though he is to have
for himself all he has bargained for beyond a certain amount, he
is still a competent witness for the seller.^ A clerk, who has
received money, is a competent witness for the party who paid it.
^ Bull. N. P. 289 ; 10 B. & C. 864, per 2 Edmonds v. Lowe, 8 B. & C. 407.
Parke, J. ; benjamin v. Porteus, 2 H. Bl. » Theobald v. Tregott, 11 Mod. 262
591 ; Mathews v. Haydon, 2 Esp. 509. per Holt, C. J.
This necessity, says Mr. Evans, is that * Bull. N. P. 289 ; 4 T. R. 590 ; Adams
which arises from the general state and v. Davis, 3 Esp. 48.
order of society, and not that which is ^ Hunter v. Leathley, 10 B. & C. 858.
merely founded on the accidental want or ° Dixon v. Cooper, 3 Wils. 40 ; Shep-
failure of evidence in the particular case, ard v. Palmer, 6 Conn. 95 ; Dupeau v. Hy-
Poth. on Obi. by Evans, App. No. 16, pp. aras, 2 McCord, 146 ; Scott v. Wells, 6
208, 267. In all the cases of this class, "Watts & Serg. 357.
there seems also to be enough of contin- ' Benjamin v. Porteus, 2 II. Bl. 590;
gency in the nature of the interest, to Caune v. Sagory, 4 Martin, 81.
render the witness admissible under the
general rule.
456 LAW OP EVIDENCE. [PART HI.
to prove the payment, though he is himself liable on the receipt
of it.i A carrier is admissible for the plaintiif, to prove that he
paid a sum of money to the defendant by mistake, in an action to
recover it back.^ So of a banker's clerk.^ A servant is a witness
for his master, in an action against the latter for a penalty, such,
for example, as for selling coals without measure by the bushel,
though the act were done by the servant.* A carrier's bookkeeper
is a competent witness for his master, in an action for not safely
carrying goods.^ A shipmaster is a competent witness for the
defendant in an action against his owner, to prove the advance-
ment of moneys for the purjioses of the voyage, even though he
gave the plaintiff a bill of exchange on his owner for the amount.^
The cashier or teller of a bank is a competent witness for the
bank, to charge the defendant on a promissory note,'^ or for money
lent, or overpaid,^ or obtained from the officer without the security
which he should have received ; and even though the officer has
given bond to the bank for his official good conduct.^ And an
agent is also a competent witness to prove his own authority, if it
be by parol.^"
§ 417. This exception being thus founded upon considerations
of public necessity and convenience, for the sake of trade and the
common usage of business, it is manifest, that it cannot he extended
to cases where the witness is called to testify to facts out of the
usual and ordinary course of business, or to contradict or deny
the effect of those acts which he has done as agent. He is safely
admitted, in all cases, to prove that he acted according to the
directions of his principal, and within the scope of his duty ; both
on the ground of necessity, and because the principal can never
maintain an action against him for any act done according to his
own directions, whatever may be the result of the suit in which he
1 Mathews v. Haydon, 2 Esp. 509. [A ' Stafford Bank v. Cornell, 1 N. Hamp.
clerk who paid out the money of his em- 192.
ployer by mistake has been held to be a * O'Brien v, Louisiana Stute Bank, 5
competent witness for his employer in any Martin, 305, n. s. ; United States Bank v.
■action to recover back the money. Burd Johnson, Id. 310.
V. Ross, 15 Mis. 254.] 9 The Franklin Bank v. Freeman, 16
2 Barker v. Macrae, 3 Campb. 144. Pick. 535 ; U. S. Bank v. Stearns, 15
8 Martin v. Horrell, 1 Stra. 647. Wend. 314.
* E. Ind. Co. V. Gossing, Bull. N. P. » Lowber v. Shaw, 6 Mason, 242, per
289 per Lee, C. J. Story, J. ; McGunnagle v. Thornton, 10
5 Spencer v. Goulding, Peake's Cas. S. & R. 251 ; Ilderton v. Atkinson, 7 T.
129. R. 480; Birt v. Kershaw, 2 East, 458;
8 Descadillas v. Harris, 8 Greenl. 298 ; [Gould v. Norfdk Lead Co. 9 Cush. 338.1
Milward v. Hallett, 2 Caines, 77. And
iee Martineau v. Woodland, 2 C. & P. 65
CHAP. II.] COMPETENCY OF WITNESSES. 457
is called as a witness. But if the cause depends on the question,
whether the agent has been guilty of some tortious act, or some
negligence in the course of executing the orders of his principal,
and in respect of which he would be liable over to the principal,
if the latter should fail in the action pending against him, the
agent, as we have seen, is not a competent witness for his prin-
cipal, without a release.^
§ 418. In the fourth class of exceptions to the rule of incompe-
tency by reason of interest, regard is paid to the time and manner
in which the interest was acquired. It has been laid down in
general terms, that where one person becomes entitled to the
testimony of another, the latter shall not be rendered incompetent
to testify, by reason of any interest svhsequently acquired in the
event of the suit.^ But though the doctrine is not now univer-
sally admitted to that extent, yet it is well settled and agreed,
that in all cases where the interest has been subsequently created
by the fraudulent act of the adverse party, for the purpose of
taking off his testimony, or by any act of mere wantonness, and
aside from the ordinary course of business on the part of the wit-
ness, he is not thereby rendered incompetent. And where the
person was the original witness of the transaction or agreement
between the parties, in whose testimony they both had a common
interest, it seems also agreed, that it shall not be in the power
either of the witness, or of one of the parties, to deprive the other
of his testimony, by reason of any interest subsequently acquired,
even though it were acquired without any such intention on the
part of the witness or of the party .^ But the question, upon which
learned judges have been divided in opinion is, whether, where
the witness was not the agent of both parties, or was not called
as a witness of the original agreement or transaction, he ought to
be rendered incompetent by reason of an interest subsequently
acquired in good faith, and in the ordinary course of business.
On this point, it was held by Lord EUenborough, that the pendency
1 Supra, §■§ 394, 395, 396; Miller v. VoweU, Skin. 586, per Ld. Holt; Cowp,
Talconer, 1 Campb. 251 ; Theobald v. 736 ; Jackson v. Kumsey, 3 Johns. Cas.
Tregott, 11 Mod. 262 ; Gevers v. Main- 234, 237 ; supra, § 167 ; [Sabine v. Strong,
waring, 1 Holt's Cas. 139 ; McBraine v. 6 Met. 670.]
Fortune, 3 Campb. 317 ; 1 Stark. Evid. 8 Forrester v. Pigou, 3 Campb. 881 ; 1
113; Fuller v. Wheelock, 10 Pick. 135, Stark. Evid. 118; Long v. Bailie, 4 S. &
138 ; McDowell v. Stimpson, 3 Watts, R. 222 ; 14 Pick. 47 ; Phelps v. Riley, 8
129, 185, per Kennedy, J. Conn. 266, 272; Bex v. Fox, 1 Stra. 662;
2 See Bent v. Baker, 3 T. R. 27, per supra, § 167.
Ld. Keuyon, and Ashhurst, J. ; Barlow v.
VOL. X.. 39
458 LAW OP EVIDENCE. [PART ni.
of a suit could not prevent third persons from transacting business
bond fide witli one of tlie parties ; and tliat, if an interest in the
event of the suit is tliereby acquired, the common consequence of
law must follow, that the person so interested cannot be examined
as a witness for that party, from whose success he will cecessarily
derive an advantage.^ And therefore it was held, that where the
defence to an action on a policy of insurance was, that there had
been a fraudulent concealment of material facts, an underwriter,
who had paid on a promise of repayment if the policy should be
determined invalid, and who was under no obligation to become
a witness for either party, wa^ not a competent witness for another
underwriter, who disputed the loss.^ This doctrine has been
recognized in the courts of several of the United States, as founded
in good reason ; ^ but the question being presented to the Supreme
Court of the United States, the learned judges were divided in
opinion, and no judgment was given upon the point.* If the
subsequent interest has been created by the agency of the party
producing the witness, he is disqualified; the party having no
right to complain of his own act.^
§ 419. It may here be added, that where an interested witness
does all in his power to divest himself of liis interest, by offering
to surrender or release it, which the surrenderee or releasee, even
though he be a stranger, refuses to accept, the principle of the
rule of exclusion no longer applies, and the witness is held admis-
sible. Thus, in an ejectment, where the lessors of the plaintiff
claimed under a will, against the heir at law, and the executor
was called by the plaintiff to prove the sanity of the testator, and
was objected to by the defendant, because by the same will he was
devisee of the reversion of certain copyhold lands; to obviate
which objection he had surrendered his estate in the copyhold
lands to the use of the heir at law, but the heir had refused to
accept the surrender ; the court held him a competent witness.^
1 Forrester v. Pigou, 3 Campb. 381 ; 1 missible in all cases, wliere the party ob-
M. & S. 9, s. c. ; HoviU v. Stephenson, 5 jeeting to the witness is himself a party to
Bing. 493 ; supra, J 167. tlie agreement by which his interest ia
2 liorresterw. Pigou, 3 Campb. 881; 1 acquired. Burgess v. Lane, 8 Greenl.
M. & S. 9, s. 0. 165, 170 ; supra, § 167.
8 riielps "•Riley, 3 Conn. 266, 272; ^ Winship v. Bank of United States,
Eastman v. Wmship, 16 Pick. 44, 47; 5 Peters, 529, 552.
Long V. Bailie, 4 Serg. & K. 222 ; The = HoviU v. Stephenson, 5 Bing 493 ■
Mancliester Iron Manufacturing Co. v. supra, § 167.
Sweeting, 10 Wend. 162. In Maine, the o Goodtitle v. Welford, 1 Doug 139 • 5
court seems to have held the witness ad- T. E. 35, per B lUer, J. The legatee in a
CHAP. II.] COMPETENCY OF WITNESSES. 459
So, if the interest may be removed by the release of one of the
parties in the suit, and such party offers to remove it, but the wit-
ness refuses, he cannot thereby deprive the party of his testi-
mony.^
§ 420. Where the witness, though interested in the event of
the cause, is so situated that the event is to him a matter of indif-
ference, he is still a competent witness. This arises where he is
equally interested on both sides of the cause, so that his interest on
one side is counterbalanced by his interest on the other.^ But if
there is a preponderance in the amount or value of the interest on
one side, this seems, as we have already seen, to render him an
interested witness to the amount of the excess, and therefore to
disqualify him from testifying on that side.^ Whether the cir-
cumstance that the witness has a remedy over against another, to
indemnify him for what he may lose by a judgment against the
party calling him, is sufficient to render him competent by equalizing
his interest, is not clearly agreed. Where his liability to costs
appears from his own testimony alone, and in the same mode it
is shown that he has funds in his hands to meet the charge, it is
settled that this does not render him incompetent.* So, where he
stated that he was indemnified for the costs, and considered that
he had ample security.^ And where, upon this objection being
taken to the witness, the party calling him forthwith executed
a bond to the adverse party, for the payment of all costs, with
sureties, whom the counsel for the obligee admitted to be abun-
dantly responsible, but at the same time he refused to receive the
bond, the court held the competency of the witness to be thereby
restored ; observing, however, tliat if the solvency of tlie sureties
had been denied, it might have presented a case of more embar-
will, who has been paid, is considered a he is a competent witness without a re-
competent witness to support tlie will in lease, to impeach one of the sales. Nute
a suit at law. Wyndham v. Chetwynd, 1 v. Bryant, 31 Maine, 553.]
Burr. 414. s Supra, §§ 391, 399, and cases there
1 l.Pliil. Evid. 149. cited. Where the interest of the witness
2 Supra, § 399. See also Cushman v. is prima facie balanced between the par-
Loker, 2 Mass. 108; Emerson v. Provi- ties, the possibility of a better defence
dence Hat Manuf. Co. 12 Mass. 237 ; against one than the other will not pre-
Roberts v. Whiting, 16 Mass. 186 ; Rice vent his being sworn. Starkweather v,
V. Austin, 17 Mass. 179; Prince v. Shep- Mathews, 2 Hill, 131.
ard, 9 Pick. 176; Lewis v. Hodgdon, 5 * Collins v. McCrunimen, 'a Martin,
Shepl. 267 ; [Adams v. Gardiner, 13 B. n. s. 166 ; Allen v. Hawks, 13 Pick. 79.
Mon. 197 ; Governor v. Gee, 19 Ala. 199. ^ Chaffee v. Thomas, 7 Cowen, 358 ;
Where both parties to a replevin suit contra. Pond v. HartweU, 17 Pick. 272, per
claim the property by purchase from the Shaw, C. J.
Banie vendor, liis in terest is balanced, and
460 LAW OP EVIDBNDE, [PABT HI.
rassment, it being very questionable whether the judge could deter-
mine upon the sufficiency of the obligors, so as to absolve the
witness from liability to costs.^ The point upon which the au-
thorities seem to be conflicting is where there is merely a right
of action over, irrespective of the solvency of the party liable ;
the productiveness of the remedy, in actual satisfaction, being
wholly contingent and uncertain. But in such cases, the weight
of authority is against the admissibility of the witness. Thus, in
an action against the sheriff for taking goods, his officer, who
made the levy, being called as a witness for the defence, stated
upon the voir dire, that he gave security to the sheriff, and added,
that he was indemnified by the creditor,, meaning that he had his
bond of indemnity. But Lord Tenterden held him not a com-
petent witness; observing, that if the result of the action were
against the sheriff, the witness was liable to a certainty ; and he
might never get repaid on his indemnity ; therefore it was his
interest to defeat the action.^ So, where the money, with which
the surety in a replevin-bond was to be indemnified, had been
deposited in the hands of a receiver designated by the judge, it
was held, that this did not restore the competency of the surety
as a witness in the cause for the principal ; for the receiver might
refuse to pay it over, or become insolvent, or, from some other
cause, the remedy over against him might be unproductive.^ The
true distinction lies between the case, where the witness must
resort to an action for his indemnity, and that in which the money
is either subject to the order of the court, and within its actual
control and custody, or is in the witness's own hands. Therefore
it has been laid down by a learned judge, that where a certain
sum of money can be so placed, either with the witness himself,
or with the court, and its officers, under a proper rule directing
and controlling its application according to the event, as that the
interest creating the disability may be met and extinguished before
the witness is or can be damnified, it shall be considered as bal-
1 Brandigee v. Hale, 13 Johns. 125 ; per Shaw, C. J. ; Schillenger v. ilcCann,
Lake v. Auburn, 17 Wend. 18, S. P. ; 6 Greenl. 364 ; Kendall v. Field, 2 Shepl.
supra, § 392. 30 ; Shelby v. Smith, 2 A. K. Marsh. 504.
" Whitehouse v. Atkinson, 3 C. & P. The cases in which a mere remedy over
844; Jewett v. Adams, 8 Greenl. 30; seems to have been thought sufficient to
Paine v. Hussey, 5 Shepl. 274. eq^ualize the interest of the witness are
3 Wallace v. Twyman, 3 J. J. Marsh. Martineau v. Woodland, 2 C. & P. 66;
46&-461. See also Owen !). Mann, 2 Day, Banks v. Kain, Id. 597; Gregory v.
E. 399, 404 ; Brown v. Lynch, 1 Paige, Dodge, 14 Wend, f 63.
147, 157 ; Allen v. Hawks, 13 Pick. 85,
CHAP. 11.] COMPETENCY OP WITNESSES. 461
anoing or extinguishing that interest, so as to restore the com
petency of the witness.^
§ 421. Ill regard to the time of taking the objection to the com-
petency of a witness, on the ground of interest, it is obvious that,
from the preliminary nature of the objection, it ought in general
to be taken before the witness is examined in chief. If the party
is aware of the existence of the interest, he will not be permitted
to examine the witness, and afterwards to object to his competency,
if he should dislike his testimony. He has his election, to admit
an interested person to testify against him, or not; but in this,
as in all other cases, the election must be made as soon as the
opportunity to make it is presented; and failing to make it at
that time, he is presumed to have waived it for ever.^ But he is
not prevented from taking the objection at any time diiring the
trial, provided it is taken as soon as the interest is discovered.^
Thus, if discovered during the examination in chief by the plain-
tiff, it is not too late for the defendant to take the objection.^
But if it is not discovered until after the trial is concluded, a new
trial will not, for that cause alone, be granted ; ^ unless the interest
was known and concealed by the party producing the witness.®
The rule on this subject, in criminal and civil cases, is the same.^
Formerly, it was deemed necessary to take the objection to the
competency of a witness on the voir dire; and if once sworn in
chief, he could not afterwards be objected to, on the ground of
interest. But the strictness of this rule is relaxed ; and the objec-
tion is now usually taken after he is sworn in chief, but previous
to his direct examination. It is in the discretion of the judge to
permit the adverse party to cross-examine the witness, as to his
interest, after he has been examined in chief; but the usual course
is not to allow questions to be asked upon the cross-examination,
which properly belong only to an examination upon the voir dire.^
1 Pond V. Hartwell, 17 Pick. 269, 272, competency of a witness can be postponed,
per Shaw, C. J. 1 Phil. Evid. 154, note (3).
2 Donelson v. Taylor, 8 Pick. 390, 392 ; * Jacobs v. Laybourn 11 M. & W. 685
Belcher v. Magnay, 1 New Pr. Cas. 110 ; And see Yardley v. Ai lold, 10 M. & W.
[Snow w.Batchelder, 8 Cush. 513.] 141; 6 Jur. 718.
8 Stone V. Blackburn, 1 Esp. 37 ; 1 ^ Turner v. Pearte 1 T. R. 717 ; Jaci-
Stark. Evid. 124 ; Shurtleff v. "Waiard, 19 son v. Jackson, 5 Cowen, 173.
Pick. 202. Where a party has been fully ' Niles v. Brackett, 15 Mass. 378.
apprised of the grounds of a witness's in- ' Commonwealth v. Green, 17 Mass.
competency by the opening speech of 538 ; Roscoe's Crim. Evid. 124.
counsel, or the examination in chief of the ' Howell «. Lock, 2 Campb. 14; Odi-
witness, doubts have been entertained at ome v. Winkley, 2 Gallis. 51 ; Perigal v.
nisi prius, whether an obiection to the Nicholson, 1 Wightw. 64. The objecUon
39*
462
LAW OF EVIDENCE.
[PABT m.
Eut if, notwithstanding every ineffectual endeavor to exclude the
witness on the ground of incompetency, it afterwards should
appear incidentally, in the course of the trial, that the witness is
interested, his testimony will be stricken out, and the jury will
be instructed wholly to disregard it.^ The rule in equity is the
same as at law ; ^ and the principle applies with equal force to
testimony given in a deposition in writing, and to an oral exam-
ination in court. In either case, the better opinion seems to be,
that if the objection is taken as soon as may be after the interest
is discovered, it will be heard ; but after the party is in mord, it
comes too late.^ One reason for requiring the objection to be
made thus early is., that the other party may have opportunity to
remove it by a release ; which is always allowed to be done, when
the objection is taken at any time before the examination is com-
pleted.* It is also to be noted as a rule, applicable to all objections
to the reception of evidence, that the ground of objection must be
distinctly stated at the time, or it wiU be held vague and nuga-
tory.^
that the witness is the real plaintiff, ought
to be taken on the voir dire. Dewdney v.
Palmer, 4 M. & W. 664; 7 Dowl. 177,
1 Davis V. Barr, 9 S. & E. 137 ; SchU-
lenger v. McCann, 6 Greenl. 364 ; Fisher
V. Willard, 18 Mass. 379; Evans v. Baton,
1 Peters, C. C. E. 338 ; Butler v. Tufts, 1
Shepl. 302 ; Stout v. Wood, 1 Blackf. 71 ;
Mitchell V. MitcheU, 11 G. & J. 388. The
same rule seems appUcable to all the in-
struments of evidence, whether oral or
written. Seribner v. McLaughlin, 1 Al-
len, 379 ; and see Swift v. Dean, 6 Johns.
523, 536; Perigal v. Nicholson, Wightw.
63 ; Howell v. Lock, 2 Campb. 64 ; Need-
ham V. Smith, 2 Vern. 464. In one case,
however, where the examination of a wit-
ness was concluded, and he was dismissed
from the box, but was afterwards recalled
by the judge, for the purpose of asking
him a. question, it was ruled by Gibbs,
C. J., that it was then too late to object to
his competency. Beeching v. Gower, 1
Holt's Gas. 313 ; and see Heely v. Barnes,
4 Denio, 73. And in chancery it is held,
that where a witness has been cross-exam-
ined by a party, with full knowledge of
an objection to his competency, the court
will not allow the objection to be taken at
the hearing. Plagg v. Mann, 2 Sumn.
487.
2 Swift V. Dean, 6 Johns. 523, 538;
Needham v. Smith, 2 Vern. 463 ; Vaughan
V. Worrall. 2 Swanst. 400. In this case.
Lord Eldon said, that no attention could
be given to the evidence, though the in-
terest were not discovered until the last
question, after he has been " cross-exam-
ined to the bone." See Gresley on Bvid.
234-236 ; Eogers v. Dibble, 3 Paige, 238 ;
Town V. Needham, Id. 545, 552 ; Harrison
V. Courtauld, 1 Russ. & M. 428; Moor-
house V. De Passou, G. Cooper, Ch. Cas.
300 ; 19 Ves. 433, s. c. See also Jacobs
V. Laybourn, 7 Jur. 562.
8 Donelson v. Taylor, 8 Pick. 390.
Where the testimony is by deposition, the
objection, if the interest is known, ought
regularly to be taken in limine ; and the
cross-examination should be made de bene
esse, under protest, or with an express re-
servation of the right of objection at the
trial ; unless the interest of the witness is
developed incidentally, in his testimony
to the merits. But the practice on this
point admits of considerable latitude, in
the discretion of the judge. United States
V. One Case of Hair Pencils, 1 Paine, 400 ;
Talbot V. Clark, 8 Pick. 51 ; Smith v.
Sparrow, 11 Jur. 126 ; The Mohawk Bank
V. Atwater, 2 Paige, 54 ; Ogle v. Pelaski,
1 Holt's Cas. 485; 2 Tidd's Pr. 812. As
to the mode of taking the objection in
chancery, see 1 Hoffm. Chan. 489 ; Gass
V. Stinson, 3 Sumn. 605.
* Tallman v. Dutcher, 7 Wend. 180;
Doty w. Wilson, 14 Johns. 378; Wake v
Lock, 5 C. & P. 454.
6 Camden v. Doremus, 3 Howard, S. ^
CHAP, n.] COMPETENCY OP WITNESSES. 463
§ 422. Where the objection to the competency of the witness
arises from his own examination, he may be further interrogated to
facts tending to remove the objection, though the testimony might,
on other grounds, be inadmissible. When the whole ground of
the objection comes from himself only, what he says must be
taken together as he says it.^ Tims, where his interest appears,
from his own testimony, to arise from a written instrument, which
is not produced, he may also testify to the contents of it ; but if
he produces the instrument, it must speak for itself. ^ So, where
the witness for a chartered company stated that he had been a
member, he was permitted also to testify that he had subsequently
been disfranchised.^ So, where a witness called by an adminis-
trator testified that he was one of the heirs at law, he was also
permitted to testify that he had released all his interest in the
estate.* And generally, a witness upon an examination in court
as to his interest may testify to the contents of any contracts,
records, or documents not produced, affecting the question of his
interest.^ But if the testimony of the witness is taken upon
interrogatories in writing, previously filed and served on the
adverse party, who objects to his competefncy on the ground of
interest, which the witness confesses, but testifies that it has been
released ; the release must be produced at the trial, that the court
may judge of it.®
§ 423. The Ttwde of proving the interest of a witness is either by
his own examination, or by evidence aliunde. But whether the
election of one of these modes will preclude the party from after-
wards resorting to the other is not clearly settled by the authori-
ties. If the evidence offered aliunde to prove the interest is
rejected, as inadmissible, the witness may- then be examined on
the voir dire!' And if the witness on the voir dire states that he
Kep. 515, 530; Elwood v. Deifendorf, 5 ^ Miller v. The Mariners' Church, 7
Barb. S. C. R. 398 ; Carr v. Gale, Daveis, Greenl. 51 ; Fifield v. Smith, 8 Shepl. 383 ;
E. 337. SeweU v. Stubbs, 1 C. & P. 73 ; Quarter-
^ Abrahams v. Buiin, 4 Burr. 2256, per man v. Cox, 8 C. & P. 97 ; Luniss v. Kow,
Ld. Mansfield ; Bank of Utlca v. Meste- 2 P. & D. 538 ; Hays v. Eichardson, 1
reau, 8 Barb. Ch. E- 528. Gill & J. 366 ; Stebbins v. Saokett, 5 Conn.
2 Butler V. Carver, 2 Stark. E. 483. 258 ; Baxter v. Eodman, 8 Pick. 435. The
See also Rex v. Gisburn, 15 East, 57. case of Goodhay v. Hendry, 1 Mo. & M.
^ Butcher's Company v. Jones, 1 Bsp. 819, apparently contra, is opposed by Car-
160. And see Botham v. Swingler, lisle v. Eddy, 1 C. & P. 284, and by Wand
Peake's Cas. 218. less v. Cawthorne, 1 Mo. & M. 321, n.
* Ingraham v. Dade, Lond. Sittings ^ Southard v. Wilson, 8 Shepl. 494;
after Mich. T. 1817 ; 1 C. P. 234, n. ; Hobart v. Bartlett, 5 Shepl. 429.
Wandless v. Cawthorne, B. E. Guildhall, ' Main v. Newson, Anthon's Cas. 13.
1829; 1 M. & M. 821, n. But a witness cannot be excluded bj
464 LAW OF EVIDENCE. [PAET HI.
does not know, or leaves it doubtM whether he is interested or
not, his interest may be shown by other evidence.^ It has also
been held, that a resort to one of these modes to prove the interest
of the witness on one ground does not preclude a resort to the
other mode, to prove the interest on another ground.^ And where
the objection to the competency of the witness is founded upon the
evidence already adduced by the party offering him, this has been
adjudged not to be such an election of the mode of proof, as to
preclude the objector from the right to examine the witness on the
voir dire? But, subject to these modifications, the rule recog-
nized and adopted by the general current of authorities is, that
where the objecting party has undertaken to prove the interest of
the witness, by interrogating him upon the voir dire, he shall not,
upon failure of that mode, resort to the other to prove facts, the
existence of which was known when the witness was interrogated.*
The party appealing to the conscience of the witness, offers him
to the court as a credible witness ; and it is contrary to the spirit
of the law of evidence, to permit him afterwards to say, that
the witness is not worthy to be believed. It would also violate
another rule, by its tendency to raise collateral issues. Nor is it
deemed reasonable to permit a party to sport with the conscience
of a, witness, when he has other proof of his interest. But if evi-
proof of his own admission that he was Evid. 154. Mr. Starkie had previously
interested in the suit. Bates v. Kyland, added these words : " as part of liis own
6 Alabama E. 668; Pierce v. Chase, 8 case" (see 2 Stark. Evid. p. 756, 1st
Mass. 487, 488 ; Commonwealth u. Waite, edit.); and with this qualification the re-
5 Mass. 261 ; George v. Stubbs, 13 Shepl. mark is supported by authority, and is
243. correct in principle. The question of
1 Shannon v. The Commonwealth, 8 competency is a collateral question; and
S. & R. 444; Galbraith v. Galbraith, 6 the rule is, that when a witness is asked a
Watts, 112 ; Bank of Columbia v. Ma- question upon a collateral point, his an- "
gruder, 6 Har. & J. 172. swer is final, and cannot be contradicted ;
2 Stebbins v. Sackett, 5 Conn. 258. that is, no collateral evidence is admissi-
' Bridge v. Wellington, 1 Mass. 221, ble for that purpose. Harris v. Tippett,
222. 2 Campb. 687 ; Pliiladelphia & Trenton
* In the old books, including the ear- Co. v. Stimpson, 14 Peters, 448, 461 ; Har-
lier editions of Mr. Starkie's and Mr. Phil- ris v. Wilson, 7 Wend. 57; Odiorne k.
lips's Treatises on Evidence, the rule is Winkley, 2 Gallis, 53 ; Rex v. Watson, 2
clearly laid down, that after an examina- Stai'k. R. 149-167. But if the evidence,
tion upon the voir dire, no other mode subsequently given upon the matter in
of proof can in any case be resorted to ; issue, should also prove the witness inter-
excepting only the case where the inter- ested, his testimony may well be stricken
est was developed in the course of trial out, without violating any rule. Brock-
of the issue. But in the last editions of bank v. Anderson, 7 Man. & Gr. 295, 313.
those works it is said, that " if the witness The American courts have followed the
discharged himself on the voir dire, the old English rule, as stated in the text,
party who objects may still support his Butler v. Butler, 3 Day, R. 214 ; Stebbins
rtKiantirtTi \\Tr ovirlonnp ■ " Tint Tin nntVinTitTr ^i So/ilra++ K f^nnn Oi^Q OA1 . OUnnnn «
objection by evidence ; " but no authority v^ Sackett, 5 Conn. 258, 261 ; Chance ».
is cited for the positio -„.,„., . .. _ . .
124; PhU. & Am. on
is cited for the position. 1 Stark. Evid. Hine, 6 Conn. 231 ; Welden v. Buck, An
Evid. 149; 1 Phil, thon's Cas. 9; Chatfield v. Lathrop, 6
CHAP. 11.] COMPBTENCT OF WITNESSES. 465
dence of his interest has been given aliunde, it is not proper to
examine the witness, in order to explain it away.^
§ 424. A witness is said to be examined upon the voir dire,
when he is sworn and examined as to the fact whether he is not
a party interested in the cause.^ And though this term was for-
merly and more strictly applied only to the case where the witness
was sworn to make true answers to such questions as the court
might put to him, and before he was sworn in chief, yet it is now
extended to the preliminary examination to his interest, whatever
may have been the form of the oath under which the inquiry is
made.
§ 425. The question of interest, though involving facts, is still
a preliminary question, preceding, in its nature, the admission
of the testimony to the jury. It is therefore to be determined by
the court alone, it being the province of the judge and not of the
jury, in the first instance, to pass upon its efficiency.^ If, how-
ever, the question of fact in any preliminary inquiry, such, for
instance, as the proof of an instrument by subscribing'witnesses,
'"s decided by the judge, and the same question of fact afterwards
recurs in the course of the trial upon the merits, the jury are not
precluded by the decision of the judge, but may, if they are satis-
fied upon the evidence, find the fact the other way.^ In determin-
ing the question of interest, where the evidence is derived aliunde,
and it depends upon the decision of intricate questions of fact, the
judge may, in his discretion, take the opinion of the jury upon
them.^ And if a witness, being examined on the voir dire, testifies
to facts tending to prove that he is not interested, and is there-
upon admitted to testify ; after which opposing evidence is intro-
duced, to the same facts, which are thus left in doubt, and the
facts are material to the issue ; the evidence must be weighed by
the jury, and if they thereupon believe the witness to be interested,
they must lay his testimony out of the case.^
426. The competency of a witness, disqualified by interest, may
always be restored ly a proper release.'' If it consists in an interest
Pick. 418 ; EvanS v. Baton, 1 Peters, * Harris v. Wilson, 7 Wend. 57 ; supra,
C. C. R. 322; Stewart v. Locke, 33 §49.
Maine, 87. * Ross v. Gould, 5 Greeul. 204.
1 Mott V. Hicks, 1 Cowen, 518 ; Evans * See supra, § 49.
•/. Gray, 1 Martin, n. s. 709. ^ -vValker v. Sawyer, IS N. Hamp. E.
" Termes de la Ley, Verb. Vmer dire. 191.
And see Jacobs v. Laybourn, 11 M. & W. ' Where the witness produces the re-
685, where the nature and use of an ex- lease from his own possession, as part of
amination upon the voir dire are stated and his testimony, in answer to a question put
esiplained by Ld. Abinger, C. B. to him, its execution needs not to be
466 LAW OF EYIDENCB. [PART HI.
vested in himself, he may divest himself of it by a release, or
other proper conveyance. If it consists in a liability over, whether
to the party calling him, or to another person, it may be released
by the person to whom he is liable. A general release of all
actions and causes of action for any matter or thing, which has
happened previous to the date of the release, will discharge the
witness from all liability consequent upon the event of a suit then
existing. Such a release from the drawer to the acceptor of a bill
of exchange was therefore held sufficient to render him a com-
petent witness for the drawer, in an action then pending by the
payee against him ; for the transaction was already passed, which
was to lay the foundation of the future liability ; and upon all
such transactions and inchoate rights such a release will operate.^
A release, to qualify a witness, must be given before the testimony
is closed, or it comes too late. But if the trial is not over, the
court will permit the witness to be re-examined, after he is re-
leased ; and it will generally be sufficient to ask him if his testi-
mony, already given, is true ; the circumstances under which it
has been given going only to the credibility.^
§ 427. As to the person hy whom the release should he given, it is
obvious that it must be by the party holding the interest to be
released, or by some person duly authorized in his behalf. A
release of a bond debt by one of several obligees, or to one of
several obligors, wUl operate as to them all.^ So, where several
proved by the subscribing witnesses ; but does not render a witness competent,
it is to be taken as part of liis testimony. Dennett v. Lamson, 30 Maine, 223.]
If tlie question is asked by the party call- ^ Scott v. Lifford, 1 Campb. 249, 250 ;
ing the witness, who thereupon produce Cartwright v. Williams, 2 Stark. E. 340.
the release, the party is estopped to deny ^ Wake v. Lock, 5 C. & P. 454 ; Tail-
that it is a valid and true release. But man v. Dutcher, 7 Wend. 180 ; Doty v.
where the release is produced or set up Wilson, 14 Johns. 378. And see Clark
by the party to the suit, to establish his o. Carter, 4 Moor, 207.
own title, he must prove its execution by ^ Co. Lit. 232, a. ; Cheetham v. Ward,
the subscribing witness. Citizens' Bank IB. & P. 630. So, by one of several part-
V. Nantucket Steamboat Co. 2 Story, R. ners, or joint proprietors, or owners.
16, 42. And see Morris v. Thornton, 8 Whitamore u. Waterhouse, 4 C. & P. 3S3;
T. R. 303; Jackson o. Pratt, 10 Johns. Hockless u. Mitchell, 4 Esp. 86 ; Bulkley
381 ; Cariisle v. Eady, 1 C. & P. 234 ; In- v. Dayton, 14 Johns. 387 ; Haley v. God-
gram V, Dada, Ibid, note ; Goodhay v. frey, 4 Shepl. 305. But where the inter
Hendry, 1 Mood. & Malk. 319. See also est of the parties to the record is several,
Southard v. Wilson, 8 Shepl. 494 ; Hall v. a release by one of them only is not suffl-
Steamboat Co. 13 Conn. 319. [The in- cient. Betts v. Jones, 9 C. & P. 199.
strument of release need not be under seal. [Where the process is in rem against a
Dunham v. Branch, 5 Cush. 558, 560. A vessel, to recover the value of goods lost
technical release, to make an interested or damaged, the master is an interested
witness competent, must be under seal, witness ; but a release from some of the
Governor v. Daily, 14 Ala. 469. A re- part-owners renders him competent. The
ceipt in fuU of all demands, not under seal, Peytona, 2 Curtis, C. C. 21.]
CHAP. n.J COMPETENCY OF WITNESSES. 467
had agreed to bear the expense of a joint undertaking, in pre-
ferring a petition to parliament, and an action was brought against
one of them, anoth^ of the contractors was held a- competent
witness for the defendant, after being released by him ; for the
event of the suit could at most only render him liable to the de-
fendant for his contributory share.^ But if there is a joint fund
or property to be directly affected by the result, the same reason
would not decisively apply ; and some act of divestment, on the
part of the witness himself, would be necessary .^ Thus, in an
action on a charter-party, a joint-owner with the plaintiff, though
not a registered owner, is not a competent witness for the plain-
tiff, unless cross releases are executed between them.^ A release
by an infant is generally sufficient for this purpose ; for it may be
only voidable, and not void ; in which case, a stranger shall not
object to it.* But a release by a guardian ad litem,^ or by a pro-
chein amy, or by an attorney of record,^ is not good. A surety
may always render the principal a competent witness for himself,
by a release.'^ And it seems sufficient, if only the costs are re-
leased.^
§ 428. Though there are no interests of a disqualifying nature
but what may, in some manner, be annihilated,^ yet there are
some which cannot be reached ly a release. Such is the case of
^ Duke V. PownaU, 1 M. & Malt. 430 ; ' Jackson v. Galloway, 8 C. & P. 480.
Ransom v, Keyes, 9 Cowen, 128. So, in * Rogers v. Berry, 10 Johns. 132
other cases of habiUty to contribution. Walker v. Ferrin, 4 Verm. 523.
Bayiey v. Osborn, 2 Wend. 527 ; Robert- ^ Fraser v. Marsh, 2 Stark. R. 41
son V. Smith, 18 Johns. 459 ; Gibbs v. Bry- Walker v. Ferrin, lib. sup.
ant, 1 Pick. 118 ; Ames v. Withington, 3 ^ Murray v. House, 11 Johns. 464
N. Hamp. 115 ; Carleton v. Witcher, 5 N. Walker v, Ferrin, ub. sup.
Hamp. 196. One of several copartners, ' Reed v. Boardman, 20 Pick. 441
not being sued with thera, may be ren- Harmon v. Arthur, 1 Bail. 83 ; WiUard v,
liered a competent witness for them by Wickman, 7 Watts, 292.
their release. Lefferts v. Be Mott, 21 ^ Perryman v. Steggal, 5 C. & P. 197,
Wend. 136 (sed vide CUne v. Little, 5 See also Van Shaack v. Stafford, 12 Pick
Blackf. 486) ; but qumre, if he ought not 565.
also to release to them his Interest in the ^ In a writ of entry by a mortgagee,
assets of the firm, so far as they may be the tenant claimed, under a deed from the
affected by the demand in controversy? mortgagor, subsequent in date, but prior
lb. in registration, and denied notice of the
^ Waito V. Merrill, 4 Greenl. 102 ; Rich- mortgage. To prove that he purchased
ardson v. Freeman, 6 Greenl. 57 ; 1 Holt's with notice, the mortgagor was admitted
Cas. 430, note ; Anderson v. Brock, 3 a competent witness tor the mortgagee,
Greenl. 243. The heir is rendered a com- the latter having released him from so
petent witness for the administrator, by much of the debt as should not be satisfied
releasing to the latter all his Interest in by the land mortgaged, and covenanted to
the action ; provided it does not appear, resort to the land as the sole fund for pay
that there is any real estate to be affected ment of the debt. Howard v. Chadbourne,
by the result Boynton v. Turner, 18 5 Greenl. 15
Ma,ss. 391.
468 LAW OP EVIDENCE. [PAET HI.
one, haviag a common right, as an inhabitant of a town; for
a release by him, to the other inhabitants, will not render him a
competent witness for one of them, to maintain the common
right.^ So, where in trover, the plaintiff claimed the chattel by
purchase from B., and the defendant claimed it under a purchase
from W., who had previously bought it from B., it was held that
a release to B. from the defendant would not render him a com-
petent witness for the latter ; for the defendant's remedy was not
against B., but against W. alone.^ And in the case of a covenant
real, running with the land, a release by the covenantee, after
he has parted with the estate, is of no avail ; no person but the
present owner being competent to release it.^ Where the action
is against the surety of one who has since become bankrupt, the
bankrupt is not rendered a competent witness for the surety, by
a release from him alone ; because a judgment against the surety
■would still give him a right to prove under the commission. The
surety ought also to release the assignees from all claim on the
bankrupt's estate, it being vested in them; and the bankrupt
should release his claim to the surplus.* So, a residuary legatee
is not rendered a competent witness for the executor, who sues
to recover a debt due to the testator, merely by releasing to the
executor his claim to that debt ; for, if the action fails, the estate
wiU still be liable for the costs to the plaintiff's attorney, or to the
executor. The witness must also release the residue of the estate ;
or, the estate must be released from aU claim for the costs.^
§ 429. It is Twt necessary that the release be actually delivered by
the releasor into the hands of the releasee. It may be deposited
in court, for the use of the absent party.^ Or, it may be delivered
to the wife, for the use of the husband.'^ But in such cases it has
been held necessary that the delivery of the release to a third
person should be known to the witness at the time of giving his
1 Jacobson v. Fountain, 2 Johns. 170; the assignee of all claims against him as
Abby V. Goodrich, 3 Day, 433; supra, § such assignee. Greene u. Durfee, 6 Cush.
405. 362.]
2 Kadbum v. Morris, 4 Bing. 649. ' Baker v. Tyrwhitt, 4 Campb. 27.
3 Leighton v. Perkins, 2 N. Hamp.427; ^ Perry v. Tleming, 2 N. Car. Law Ee-
Pile V. Benham, 3*Hayw. 176; [Field v. pos. 458; Lilly v. Kitzmiller, 1 Yeates,
Snell, 4 Cush. 504, 506 ; Clark v. Johnson, 80 ; Matthews v. Marchant, 3 Dey. & Bat.
8 Day, 373; Cunningham, 1 Barb. 399, 40; Brown v. Brown, 6 Ala. 508. Or, it
405.] may be delivered to the attorney. Ste-
* Ferryman v. Steggal, 8 Bing. 369. venson v. Mudgett, 10 N. Hamp. 308.
[An insolvent debtor, who has obtained f Van Deusen v. Frink, 15 Pick. 449;
his discharge, is a competent witness for Peaceable v. Keep, 1 Yeates, 576.
the assignee, on his giving a release to
CHAP. II.] COMPETENOT OP WITNESSES. 469
testimony.^ Tho objection of interest, as before remarked, pro-
ceeds on the presumption that it may bias the mind of the witness ;
but this presumptioij is taken away by proof of his having done all
in his power to get rid of the interest.^ It has even been held,
that where the defendant has suffered an interested witness to be
examined, on the undertaking of the plaintiff's attorney to execute
a release to him after the trial, which, after a verdict for the plain-
tiff, he refused to execute, this was no sufficient cause for a new
trial ; for the witness had a remedy on the undertaking.^ But the
witness, in such cases, wiU not be permitted to proceed with his
testimony, even while the attorney is preparing or amending the
release, without the consent of the adverse party.*
§ 430. There are other modes, besides a release, in which the
competency of an interested witness may be restored. Some of
these modes, to be adopted by the witness himself, have already
been adverted to ; ^ namely, where he has assigned his own in-
terest, or done all in his power to assign it ; or, where he refuses
to accept a release tendered to him by another. So, where, being
a legatee or distributee, he has been fully paid.^ An indorser is
made a competent witness for the indorsee, by striking off his
name from the back of the note or bill ; but if the bill is drawn
in sets, it must appear that his name is erased from each one of
the set, even though one of them is missing and is siipposed to be
lost ; for it may be in the hands of a bond fide holder.'' A guar-
antor, also, is rendered a competent witness for the creditor, by
delivering up the letter of guaranty, with permission to destroy
it.^ And this may be done by the attorney of the party, his rela-
tion as such and the possession of the paper being sufficient to
justify a presumption of authority for that purpose.^ The bail or
surety of another may be rendered a competent witness for him,
as we have already seen, by substituting another person in his
stead ; which, where the stipulation is entered into in any judicial
proceeding, as in the case of bail and the like, the court will order
1 Seymour v. Strong, 4 HiU, E. 225. * Doty v. Wilson, 14 Johns. 378.
Whether the belief of the witness as to his ^ Supra, § 419.
interest, or the impression under which he * Clarlie v. Ganfton, Ry. & M. 31 ;
testifies, can go farther than to affect the Gebliardt v. Shindle, 15 S. & R. 235.
credibility of his testimony, qucere; and ' Steinmetz v. Currie, 1 Dall. 269.
see supra, §§ 887, 388, 419. ' Merchants' Bank v. Spicer, 6 Wend.
2 Goodtitle v. Welford, 1 Doug. 139, 543.
141, per Ashhurst, J. ' Ibid; Watson v. McLaren, 19 Wond,
8 Hemming v. English, 1 Cr. M. & R. 557.
668;5Tyrwh. 186, s. o.
VOL I 40
470 LAW OP BYIDENCE. [PABT III.
upon motion. The same may be done by depositing in court
a sufficient sum of money ; or, in the case of bail, by a surrender
of the body of the principal.^ So, where the liability, which would
hare rendered the witness incompetent, is discharged by the opera-
tion of law ; as, for example, by the bankrupt or the insolvent
laws, or by the statute of limitations.^ Where, in trespass, several
justifications are set up in bar, one of which is a prescriptive or
customary right in all the inhabitants of a certain place, one of
those inhabitants may be rendered a competent witness for the
defendant, by his waving that branch of the defence.^ In trover
by a bailee, he may render the bailor a competent witness for
him, by agreeing to allow him, at all events, a certain sum for the
goods lost.* The assignee of a chose in action, who, having com-
menced a suit upon it in the name of the assignor, has afterwards
sold and transferred his own interest to a stranger, is thereby
rendered a competent witness for the plaintiff. ^ But the interest
wliich an informer has in a statute penalty is held not assignable
for that purpose.^ So, the interest of a legatee being assigned,
he is thereby rendered competent to prove the will ; though the
payment is only secured to him by bond which is not yet due.''
So, a stockholder in any money-corporation may be rendered a
competent witness for the corporation, by a transfer of his stock,
either to the company or to a stranger ; even though he intends
to repossess it, and has assigned it merely to qualify himself to
testify ; provided there is no agreement between him and the
assignee or purchaser for a reconveyance.^ Where a witness was
liable to the plaintiff's attorney for the costs, and the attorney had
prepared a release, in order to restore his competency in case it
should be questioned, but no objection being made to the witness,
1 Supra, § 392, note (1) ; Bailey v. Hole, * Maine Stage Co. v. Longley, 2 Shepl.
3 C. & P. 660; 1 Mood. & M. 289, s. c; 444.
Leggett V. Boyd, 3 Wend. 376 ; Tompkins ' Soulden v. Van Eensselaer, 9 Wend.
V. Curtis, 3 Cowen, 251 ; Grey v. Young, 293.
1 Harper, 38 ; Allen v. Hawks, 13 Pick. ^ Commonwealth v. Hargeslieimer, ]
79 ; Beckley v. Freeman, 16 Pick. 468 ; Ashm. 413.
Peareey v. Fleming, 5 C. & P. 503 ; Lees ' Mcllroy v. McHroy, 1 Rawle, 423.
V. Smith, 1 M. & Rob. 329 ; Corastock v. ^ Gilbert v. Manchester Iron Co. 11
Paie, 3 Rob. Louis'. R. 440; Fraser v. Wend. 627; Utica Ins. Co. u. Cadwell, 3
Harding, 3 Kerr, 94. Wend. 296 ; Stall v. The Catskill Bank, 18
2 Murray v. Judati, 6 Cowen, 484; Wend. 466; Bank of Utica, v. Smalley, 2
Ludlow V. Union Ins. Co. 2 S. & R. 119; Cowen, 770; Bell v. Hull, &e , Railway
UnitedStatesw. Smith,4Day, 121; Quim- Co. 6 M. & W. 701; Illinois Ins. Co. v.
by V. Wroth, 8 H. & J. 249; Murray v. Marseilles Co. 1 Gilm. 236; Union Bank
Marsh, 2 Hayw. 200. v. Owen, 4 Humph. 388.
" Prewitt V. Tilly, 1 C. & P. 140.
CHAP. II.J COMPETENCY OP WITNESSES. 471
he was examined for the plaintiff without a release, this was con-
sidered as a gross imposition upon the court ; and in a subsequent
action by the attorney against the witness, for his costs, he was
nonsuited.! These examples are deemed sujSicient for the purpose
of illustrating this method of restoring the competency of a witness
disqualified by interest'.
s Williams v. Goodwin, 11 Moore, 842,
472 LAW OP EVIDENCE. fPABT IH
OHAPTBE ITx'.
OP THE EXAMINATION OP WITNESSES,
[* § 431. The mode of examination in discretion of judge.
432. Witnesses may be examined apart from each other.
433. Party calling first examines ; the other then cross-examines.
434. Leading questions not allowed on direct examination. Tacts, and not opin-
ions.
434a. Summary of some of the late cases.
435. Leading questions allowed on direct examination, in discretion of the court.
436. Witness may re&esh his memory by writings.
437. Different circumstances under which such writings resorted to.
438. Such writings should be nearly contemporaneous with the transaction.
439. Papers may be read over to blind witness, &c.
440. Upon what subjects witnesses may express opinions.
440a. Analysis of recent cases upon the point.
4406. A prejudiced witness more reliable as to facts than opinions.
441. The opinions of witnesses not admissible upon general questions of moral
duty and conduct, but as to duty in particular business.
442. Party not allowed to discredit his own witness.
443. But he may prove the fact otherwise.
444. How far it is competent to discredit the party's own witness by proving con-
tradictory statements made elsewhere.
444a. You may inquire of the witness in respect to them, but cannot contradict
liim by his own statements.
445. Where a witness gives any testimony, he may be cross-examined by the
other party as to the whole case.
446. Cross-examination a valuable test of witness's fidelity.
447. This right extends to the whole trial, even where the party .'(ecalls his a(i-
versary's witness.
448. Testimony restricted to the issue.
449. On cross-examination a wider range allowed.
450. State of witness's feeUng towards party a material inquiry.
451. Not compellable to criminate himself.
451a. Statement of the rule according to recent cases.
452. Not excused from testifying merely against his own interest.
453. Witness not obliged to give testimony exposing him to forfeiture of estate.
454. Not excused from giving testimony material to issue because it will tend to
degrade witness.
455. 456. Witness may be compelled to give answer, in all cases, which merely
tends to disgrace.
457. Witness cannot be asked if he has suffered punishment.
CHAP. m.J EXAMINATION OP WITNESSES. 473
§ 458. Questions tending merely to disgrace witness, and not to affect credibility,
clearly inadmissible.
459. How far witness may be asked questions tending to lower his credit.
460. Counsel cannot insist upon asking questions which witness is not obliged to
answer.
461. May be impeached by general testimony of bad character.
462. So also by showing tliat he has made contradictory statements.
463. Cannot be examined as to contents of letter not in evidence.
464. Loss of paper proved before witness cross-examined as to contents.
465. How far witness may be asked if he has given a different account, either
orally or in writing.
466. When the party may cross-examine as to paper.
467. Re-examination only extends to subject-matter of cross-examination.
468. And this rule obtains where the cross-examination is upon matters not ma-
terial to the issue.
469. Witness attempted to be discredited on cross-examination may be sustained
by general proof of good character.]
§ 431. Hating thus treated of the means of procuring the
attendance of witnesses, and of their competency, we come now to
consider the manner in which they are to be examined. And
here, in the first place, it is to be observed, that the subject lies
chiefly in the discretion of the judge, before whom the cause is
tried, it being from its very nature susceptible of but few positive
and stringent rules. The great obje6t is to elicit the truth from
the witness ; but the character, intelligence, moral courage, bias,
memory, and other circumstances of witnesses are so various, as
to require almost equal variety in the manner of interrogation,
and the degree of its intensity, to attain that end. This manner
and degree, therefore, as well as the other circumstances of the
trial, must necessarily be left somewhat at large, subject to the few
general rules which we shall proceed to state ; remarking only,
that wherever any matter is left to the discretion of one judge,
his decision is not subject to be reversed or revised by another.
§ 432. If the judge deems it essential to the discovery of truth,
that the witnesses should be examined out of the hearing of each
other, he will so order it. This order, upon the motion or sug-
gestion of either party, is rarely withheld; but, by the weight
of authority, the party does not seem entitled to it as a matter of
right.^ The course in such cases is either to require the names of
^ In Eex ' . Cooke, 13 Howell, St. Tr. Vaughan, Id. 494, and by Sir Michael
348, it was declared by Lord C. J. Treby Foster, in Eex v. Goodere, 17 Howell, St.
to be grantable of favor only, at the dis- Tr. 1015. See also 1 Stark. Evid. 163 ;
cretion of the court, and this opinion was Beamon v. EUice, 4 C. & P. 585, per Taun-
followed by Ld. C. J. Holt, in Rex o. ton, J. ; The State v. Sparrow, 3 Mtu-phy.
40*
474
LAW OP EVIDENCE.
[PAIJT III.
tlie witnesses to be stated by the counsel of the respective parties,
by whom they were summoned, and to direct the sheriff to keep
them in a separate room until they 'are called for ; or, more usually,
to cause them to withdraw, by an order from the bench, accompa-
nied with notice, that if they remain they will not be examined.
In the latter case, if a witness remains in court in violation of the
order even by mistake, it is in the discretion of the judge, whethei
or not he shall be examined. ^ The course formerly was to exclude
him ; and this is still the inflexible rule in the exchequer in
revenue cases, in order to prevent any imputation of unfairness
in proceedings between the crown and the subject. But with this
exception, the rule in criminal and civil cases is the same.^ But
an attorney in the cause, whose personal attendance in court is
necessary, is usually excepted from the order to withdraw.^ The
right of excluding witnesses for disobedience to such an order,
though weU established, is rarely exercised in America ; * but the
witness is punishable "for the contempt.
E. 487. The rule is stated by Tortesoue,
in these words : Et si necessitas exegerit,
dlvidantur testes hujusmodi, donee ipsi
deposuerint quicquid velint, ita quod dic-
tum unius non docebit aut concitarit
eorum alium ad consimiliter testifican-
dum. Fortesc. De Laud. Leg. Angl. c.
26. This, however, does not necessarily
exclude the right of the court to deter-
mine whether there is any need of a sepa-
rate examination. Mr. Phillips states it
only as the uniform course of practice,
that "the court, on the application of
counsel, will order the witnesses on both
sides to withdraw." 2 Phil. Evid. 395.
And see, accordingly, Williams v. HuUie,
1 Sid. 131 ; Swift on Evid. 512. In Tay-
lor V. Lawson, 3 C. & P. 543, Best, C. J.,
regretted that the rule of parliamentary
practice, which excludes all witnesses but
the one under examination, was not uni-
versally adopted. But in Southey v. Nash,
7 C. & P. (J32, Alderson, B., expressly
recognized it as " the right of either party,
at any mu.iient, to require that the unex-
amineil witnesses shall leave the court."
It is a general rule in the Scotch law, that
witnesses should be examined separately ;
and it is founded on the importance of
having tlie story of each witness fresh
from his own recollection, unmingled with
(lie impression received fi:om hearing the
testimony of others in the same case. To
this rule, an exception is allowed in the
case of medical witnesses ; but even those,
on matters of medical opinion, are exam-
ined apart from each other. See Alison's
Practice, pp. 542-545; Tait on Evid. 420;
[Nelson v. State, 2 Swan. 237 ; Benaway
V. Conyne, 3 Chand. 214.] [*The rule
does not extend to the party, who has a
right to remain in court for the purpose of
instructing counsel. Selfe v. Isaacson, 1
E. & E. 194.]
1 It has, however, been held, that if
the witness remains in court, in disobe-
dience of its order, his testimony cannot,
on that ground alone, be excluded; but
that it is matter for observation on liis evi-
dence. Chandler v. Home, 2 M. & Rob.
423. As to the rule in the text, see The
State V. Brookshire, 2 Ala. 303, ace.
2 Attorney-Gen. v. Bulpit, 9 Price, 4;
Parker v. MeWilUam, 6 Bing. 683; 4
Moore & Payne, 480, s. o. ; Thomas v.
David, 7 C. & P. 350 ; Bex v. CoUey, 1 M.
& Malk. 329 ; Beamon v. EUice, 4 C. & P.
585, and note (b) ; [McLean v. State, 16
Ala. 672.]
3 Everett v. Lowdham, 5 C. & P. 91 ;
Pomeroy v. Badderley, Ry. & M. 430. [So
it is ordinarily with experts, and witnesses
called as to character, &c. And in those
states in which parties are made compe-
tent witnesses, it would seem that the
order of exclusion should not include
them ; and it is the better practice as a
general rule in those states, so far as it is
known to be established, when the wit-
nesses in a case are ordered to withdraw,
to except parties from the order.]
* See Anon. 1 HiU, 254, 256; The
CHAP, III.] EXAMINATION OK WITNESSES. 475
§ 433. When a witness has been duly sworn, and his competency
is settled, if objected to,^ he is first examined by the party pro-
ducing him ; which is called his direct examination. He is after-
wards examined to the same matters by the adverse party ; which
is called his cross-examination. These examinations are conducted
orally in open court, under the regulation and order of the judge
and in his presence and that of the jury, and of the parties and
their counsel.
§ 434. In the direct examination of a witness, it is not allowed
to put to him what are termed leading questions ; that is, questions
which suggest to the witness the answer desired.^ The rule is
to be understood in a reasonable sense ; for if it were not allowed
to approach the points at issue by such questions, the examinations
would be most inconveniently protracted. To abridge the proceed-
ings, and bring the witness as soon as possible to the material points
on which he is to speak, the counsel may lead him on to that length,
and may recapitulate to him the acknowledged facts of the case
which have been already established. The rule, therefore, is not
applied to that part of the examination, which is merely introductory
of that which is material. Questions are also objectionable, as
leading, which, embodying a material fact, admit of an answer by a
simple negative or affirmative. An argumentative or pregnant
course of interrogation is as faulty as the like course in pleading.
The interrogatory must not assume facts to have been proved, which
have not been proved ; nor, that particular answers have been
given, which have not been givcn.^ The witness, except in certain
cases hereafter to be mentioned, is to be examined only to matters
of fact within his own knowledge, whether they consist of words
or actions ; and to these matters he should in general be plainly,
directly, and distinctly interrogated. Inferences or conclusions,
which may be drawn from facts, are ordinarily to be drawn by the
State V. Sparrow, 3 Murph. 487; The cause, or concern in conducting it; to-
State V. Brookshire, 2 Ala. 303 ; Dyer v. gether with his age, and whether lie is
Morris, 4 Mis. 214; Keath v. Wilson, 6 married or not, and the degree of Ms rela-
Mis. 435 ; [Pleasant v. State, 15 Ark. 624; tionship to the party adducing him. Tait
Sartorious v. State, 24 Miss. 602 ; Porter v. on Evid. 424.
State, 2 Carter, 435.] => Snyder v. Snyder, 6 Binn. 483; Har-
1 The course in tiie Scotch courts, after risen v. Eowan, 3 Washingt. 580; Parkin
a witness is sworn, is, first to examine him v. Moon, 7 C. & P. 408 ; Alison's Practice,
in initialibus, namely, whether he has been 545 ; Tait on Evid. 427.
instructed what to say, or has received or ^ HiU v. Coombe, 1 Stark. Evid. 163,
has been promised any good deed forwhat note (qq.) ; Handley u. Ward, Id. ; Tumey
he is to say, or hears any ill-will to the ad- v. The State, 8 Sm. & Marsh 104.
verse party, or has any interest in the
476 LAW OP EVIDENCE. [PABT III.
jury alone ; except where the conclusion is an inference of skill
and judgment ; in which case it may be drawn by an expert, and
testified by him to the jury.^
[ * § 434fl!. There is probably no rule of practice more habitually
violated by counsel in the examination of witnesses, than that
questions should not be leading. It is rather an exception to find
questions so framed as to elicit the knowledge of witnesses, with-
out intimating the desire of the examiner. But no one can fail to
perceive, that, when that is done skilfully, it adds great weight to
the testimony. In New Hampshire, it is said that a question to be
leading must instruct the witness how to answer ; or put words into
his mouth to be echoed back ; or in some way suggest the answer
desired:^ and that a question calling for a direct aifirmative or
negative is not leading unless it suggest one more than the other .^
The matter is considerably discussed in a modern case in Penn-
sylvania.* And, in another case^ there, it was said that an inquiry,
whether a person by name showed him where the corner of land
was, is not leading. It may be in a sense leading, but not within
the rule of exclusion, since it was merely inducement, and in itself
of no importance. It is best such questions should be put in a
leading form to save time. But the main inquiry, " What did he
sliow you as the corner ? " should be left entirely to the witness.
A person cannot be allowed to discredit his own witness by asking
if the account now given is the same as that given by him on a
former occasion.^ Nor can one assume, in framing a question
to his witness, the existence of facts not proved.'^ The pre-
siding judge may, of course, interrogate the witnesses in any
form and to any extent he may deem important to the ends of
justice.^]
§ 436. In some eases however, leading questions are permitted,
even in a direct examination ; namely, where the witness appears
to be hostile to the party producing him, or in the interest of the
other party, or unwilling to give evidence ; ^ or where an omission
1 1 Stark. Evid. 152 ; Goodtitle d. Ke- * Commonwealth v. Galavan, 9 Allen,
vett V. Braham, 4 T. E. 497. 271.]
2 Page V. Parker, 40 N. H. 47. 9 Clarke v. Saffery, Ry. & M. 126, per
8 [» Spear v. Richardson, 37 N. H. 23, Best, C. J. ; Eegina v. Chapman, 8 C. & P.
« Wilson V. McCullough, 23 Penn. St. 558; Regina v. Ball, Id. 745; Regina v.
440. Murphy, Id. 297 ; Bank of North. Liber-
6 Kemmerer v. Edelman, Id. 143. ties v. Davis, 6 Watts & Serg. 285 ; Towns
» Sanchez v. People, 22 N. Y. Ct. App. v. Alford, 2 Ala. 878, Leading questions
147. are not allowed in Scotland, even in cross-
' Carpenter v. Amtooson, 20 111. 170. examining, Tait on Evid. 427 ; Alijcn'i
Practice, 545.
CHAP. III.] EXAMINATION Or WITNESSES. 477
in his testimony is evidently caused by want of recollection, which
a suggestion may assist. Thus, where the witness stated, that he
could not recollect the names of the component members of a
firm, so as to repeat them without suggestion, but thought he
might possibly recollect them if suggested to him, this was per-
mitted to be done.i So, where the transaction involves numerous
items or dates. So, where, from the nature of the case, the mind
of the witness cannot be directed to the subject of inquiry, with-
out a particular specification of it; as, where he is called to
contradict another, as to the contents of a letter which is lost,
and cannot, without suggestion, recollect all its contents, the
particular passage may be suggested to him.^ So, where a witness
's called to contradict another, who had stated, that such and
«uch expressions were used, or the like, counsel are sometimes
lermitted to ask, whether those particular expressions were used,
or those things said, instead of asking the witness to state what
was said.2 Where the witness stands in a situation, which of
Qecessity makes him adverse to the party calling him, as, for
example, on the trial of an issue out of chancery, with power to
the plaintiff to examine the defendant himself as a witness, he
may be cross-examined, as a matter of right.* Indeed, when and
under what circumstances a leading question may be put, is a
matter resting in the sound discretion of ^;he court, and not
a matter which can be assigned for error.^
1 Acerro et al. v. Petroni, 1 Stark. E. much of the practical consequences of the
100, per Lord Ellenborough. [* So a wit- doctrines he has published to the world."
ness who denies his own certificate, or Per Best, C. J., in HoviU o. Stephenson,
states that it was collusively made, or in 5 Bing. 493.
any other mode shows an interest of feel- ^ Moody v. Powell, 17 Pick. 498. In
ing for the party opposed to the one call- this case the law on this point was thus
ing him, may be examined in the usual stated by the learned chief justice : " The
mode of cross-examination. Martin u. court have no doubt that it is within the
Travellers' Ins. Co. 1 F. & F. 505.] discretion of a judge at the trial, under
2 Courteen v. Touse, 1 Campb. 43 ; particular circumstances, to permit a lead-
Edmonds V. Walter, 3 Stark. R. 7. ing question to be put to one's own wit-
' 1 Stark. Evid. 152. Mr. Phillips is ness ; as when he is manifestly reluctant
of opinion that the regular mode should and hostile to the interest of the party
first be exhausted in such cases, before calling him, or where he has exhausted
leading questions are resorted to. Phil, his memory, without stating the particu-
& Am. on Evid. pp. 890, 891 ; 2 Phil, lar required, where it is a proper name, or
Evid. 404, 405. other fact which cannot be significantly
* Clarke v. Saffery, Ey. & M. 126. pointed to by a general interrogatory, or
The policy of these rules, as well as of where the witness is a child of tender
almost all other rules of the common law years, whose attention can be called to the
on the subject of evidence, is controverted matter required, only by a pointed or lead-
in the Eationale of Judicial Evidence, by ing question. So a judge may, in his dis-
Jeremy Bentham ; — "a learned writer, cretion, prohibit certain leading questions
who has devoted too much of his time to from being put to an adversary's witness,
the theory of jurisprudence, to know where the witness shows a strong interest
478
LAW OP EVIDENCE.
[part ni.
§ 436. Though a -witness can testify only to such facts as are
within his own knowledge and recollection, yet he is permitted to
refresh and assist his memory, hy the use of a written instrument,
memorandum, or entry in a book, and may be compelled to do so,
if the writing is present in court.^ It does not seem to be neces-
sary that the writing should have been made by the witness him-
self, nor that it should be an original writing, provided, after
inspecting it, he can speak to the facts from his own recollection.*
So also, where the witness recollects that he saw the paper while
the facts were fresh in his memory, and remembers that he then
knew that the particulars therein mentioned were correctly stated.''
A-nd it is not necessary that the writing thus used to refresh the
memory should itself be admissible in evidence ; for if inadmis-
sible in itself, as, for want of a stamp, it may still be referred
to by the witness.* But where the witness neither recollects the
fact, nor remembers to have recognized the written statement as
true, and the writilig was not made by him, his testimony, so far
or bias in favor of the cross-examining
party, and needs only an intimation, to say
whatever is most favorable to that party.
The witness may have purposely con-
cealed such bias in favor of one party, to
induce the other to call him and make him
his witness ; or the party calling him may
be compelled to do so, to prove some sin-
gle fact necessary to his case. This dis-
cretionary power to vary the general rule,
is to be exercised only so far as the pur-
poses of justice plainly require it, and is to
be regulated by the circumstances of each
case." And see Donnell v. Jones, 13 Ala.
490. [* Walker v. Dunspaugh, 20 N. Y.
(6. Smith) 170. But when it is so exer-
cised as to deprive the party of important
evidence, the question may be raised on ap-
peal. Gunter v. Watson, 4 Jonei, Law.
455.]
1 Reed v. Boardman, 20 Pick. 441.
2 Doe D. Perkins, 3 T. R. 749, ex-
pounded in Rex v. St. Martin's, Leicester,
2 Ad. & El. 215 ; Barton v. Plummer, Id.
341 ; Burroughs v. Martin, 2 Campb. 112 ;
Duchess of ICingston's case, 20 Howell's
St. Tr. 619 ; Henry v. Lee, 2 Chitty R.
124 ; Rambert v. Cohen, 4 Esp. 213. In
Meagoe v. Simmons, 2 C. & P. 75, Lord
Tenterden observed, that the usual course
was not to permit the witness to refresh
his memiory from any paper not of his own
(Writing. And so is the Scotch practice.
Tait on Evid. 188. But a witness has
been allowed to refresh his memory from
tlie notes of his testimony, taken by coun-
sel at a former trial. Laws v. Reed, 2
Lewin, Cr. Cas. 152. And from his depo-
sition. Smith V. Morgan, 2 M. & Hob.
259. And from a printed copy of his re-
port. Home V. Mackenzie, 6 C. & Fin.
628. And from notes of another person's
evidence, at a' former trial examined by
him during that trial. Regina v. Pliilpots,
5 Cox, Cr. C. 329. Or, within two days
afterwards. Ibid, per Erie, J. But the
counsel for the prisoner, on cross-exam-
ining a witness for the prosecution, is not
entitled to put the deposition of the wit
ness into his hand, for the purpose of re-
freshing his memory, without giving it in
evidence. Regina v. Ford, Id. 184 ; [s. c.
4 Eng. Law & Eq. 576 ; State v. Lull, 87
Maine, 246. But where a witness, whose
deposition had been previously taken, was
asked in cross-examination what he had
stated in the deposition, he was permitted
to refresh his i-ecoliection by referring to
a copy of the deposition. George v. Joy,
ION. H. 544.]
8 Burrough v. Martin, 2 Campb. 112 ;
Burton v. Plummer, 2 Ad. & El. 343, per
Lord Denman ; Jacob v. Lindsay, 1 East,
466; Downer v. Rowell, 24 Verm. 343.
But see Butler v. Benson, 1 Barb. Ch. R.
526 ; [Seavy v. Dearborn, 19 N. H. 351 ;
Webster v. Clark, 10 Poster, 245 ; State v
Colwell, 3 R. I. 132.] [* Green v. Caulk,
16 Md. 556.]
* Maugham v. Hubbard, 8 B. & C. 14;
Kensington v. Inglis, 8 East, 273 : supra.
§§ 90, 228.
CHAP. III.] EXAMINATION OP WITNESSES. 479
as it is founded upon the written paper, is but hearsay ; and a wit-
ness can no more be permitted to give evidence of his inference
from what a third person has written, than from what a third per-
son has said.i
§ 437. The cases in which writings are permitted to be used for
this purpose, may be divided into three classes. (1.) Where the
writing is used only for tlie purpose of assisting the memory of
the witness. In this case, it does not seem necessary that the
writing should be produced in court,^ though its absence may afford
matter of observation to the jury ; for the witness at last testifies
from his own recollection. (2.) Where the witness recollects
having seen the writing before, and tliough he has now no inde-
pedent recollection of the facts mentioned in it, yet he remembers
that, at the time he saw it, he knew the contents to be correct.
In this case, the writing itself must be produced in court, in order
that the other party may cross-examine ; not that such writing is
thereby made evidence of itself, but that the other party may
have the benefit of the witness's refreshing his memory by every
part.^ And for the same reason, a witness is not permitted to
refresh his memory by extracts made from other writings.* (3.)
Where the writing in question neither is recognized by the witness
as one which he remembers to have before seen, nor awakens his
memory to the recollection of any thing contained in it ; but, never-
theless, knowing the writing to be genuine, his mind is so con-
' 2 Phil. Evid. 413. bound to read it in evidence ; and may
^ Kensington v. Inglis, 8 East, 273 ; also ask the witness when it was written,
Burton v. Plummer, 2 Ad. & El. 341. without being bound to put it into the
[But see Harrison v. Middleton, 11 Gratt. case. Rex v. Eamsden, 2 C. & P. 603.
527 ; Howland v. Sheriif, &c., 5 Sandf. The American courts have sometimes car-
219.] ried the rule farther tlian it has been
3 Supra, §§ 115, 436 ; Rex v. St. Mar- carried in England, by admitting the
tin's, Leicester, 2 Ad. & El. 215, per Pat- writing itself to go in evidence to the
teson, J.; Sinclair v. Stevenson, 1 C. &P. jury, in all cases where it was made by
582; 2 Bing. 516, s. c. ; 10 Moore, 46, s. o. ; the witness at the time of the fact, for the
Loyd V. Ereshfleld, 2 C. & P. 325 ; 8 D. & purpose of preserving the memory of it,
E. 19, s. c. If the paper is shown to the if, at the time of testifying, he can recol-
witness, directly to prove the handwriting, lect nothing further than that he had ac-
it has been ruled that the other party has curately reduced the whole transaction to
lilt therefore a right to use it. Sinclair w. writing. Farmers' and Mechanics' Bank
ISievenson, supra. But the contrary has b. Boraef, 1 Rawle, 152; Smith v. Lane,
since been held, by Bosanquet, J., in Rus- 12 S. & R. 84, per Gibson, J. ; The State
tell V. Ryder, 6 C. & P. 416, and with good v. Eawls, 2 Nott & McCord, 381 ; Clark v.
reason ; for the adverse party has a right Vorce, 15 Wend. 193; Merrill v Ithaca &
to cross-examine the witness as to the Oswego Railroad Co. 16 Wend. 586, 596,
handwriting. 2 Phil. Evid. 400. But if 597, 598 ; Haven v. Wendell, 11 N. Hamp.
the counsel, in cross-examination, puts a 112. But see Lightner v. Wike, 4 S. & R.
paper into a witness's hand, in order to 203 ; \infra, § 466.]
refresh liis memory, the opposite counsel * Doe v. Perkins, 3 T. R 749; 2 Ad.«
has a right to look at it, without being El. 215.
480 LAW OP EVIDENCE. [PABT IH.
vinced, that he is on that ground enabled to swear positively as
to the fact. An example of this kind is, where a banker's clerk
is shown a bill of exchange, which has his own writing upon it,
from which he knows and is able to state positively that it passed
through his hands. So, where an agent made a parol lease, and
entered a memorandum of the terms in a book which was pro-
duced, but the agent stated that he had no memory of the trans-
action but from the book, without wliich he should not, of his own
knowledge, be able to speak to the fact, but on reading the entry
he had no doubt that the fact reaUy happened ; it was held suflS-
cient.^ So, where a witness, called to prove the execution of a
deed, sees his own signature to the attestation, and says, that
he is therefore sure that he saw the party execute the deed ;
that is sufficient proof of the execution of a deed, though he adds
that he has no recollection of the fact.^ In these and the like
cases, for the reason before given, the writing itself must be pro-
duced.2
§ 438. As to the time when the writing, thus used to restore the
recollection of facts, should have been made, no precise rule seems
to have been established. It is most frequently said, that the
writing must have been made at the time of the fact in question,
or recently afterwards.* At the farthest, it ought to have been
made before such a period of time has elapsed, as to render it
probable that the memory of the witness might have become defi-
cient.^ But the practice, in this respect, is governed very much
by the circumstances of the particular case. In one case, to
prove the date of an act of bankruptcy committed many years
1 1 Stark. Evid. 154, 155 ; TUison's proved to have written a certain article in
Practice, pp. 540, 541 ; Tait on Evid. 432. a newspaper, but the manuscript was lost,
2 Eex V. St. Martin's, Leicester, 2 Ad. and A had no recollection of the fact of
& El. 210. See also Haig v. Newton, 1 writing it, it was held that the newspaper
Const. Rep. 423 ; Sharpe v. Bingley, Id. might be used to refresh his memory, and
373 ; [Martin v. Good, 14 Md. 398 ; Cole that he might then be asked whether he
V. Jessup, 6 Selden (N. Y.), 96.] had any doubt that the feet was as therein
s Maugham v. Hubbard, 8 B. & C. 16, stated. Topham v. McGregor, 1 Car. &
per Bailey, J. ; Eussell v. Coffin, 8 Pick. Kir. 320. So, where the transaction had
148, 159 ; Den v. Downam, 1 Green's R. faded from the memory of the witness,
135, 142 ; Jackson v. Christman, 4 Wend, but he recollected, that wliile it was recent
277, 282 ; Merrill v. Ithaca, &c., Railroad and fresh in his memory, he had stated
Co. 16 Wend. 598 ; Patterson v. Tucker, the circumstances in his examination be-
4 Halst. 322, 332, 333; Wheeler v. Hatch, fore commissioners of bankruptcy, whicli
3 Fairf. 389 ; Pigott v. Holloway, 1 Binn. they had reduced to writing, and he had
436 ; Collins v. Lemasters, 2 Bail. 141. signed ; he was allowed to look at his ex-
* Tanner v. Taylor, oited by Buller, J., amination to refresh Ms memory. Wood
in Doe v. Perkins, 3 T. E. 754 ; Howard o. Cooper, Id. 645.
V. Canfield, 5 Dowl. P. C. 417 ; Dupuy v. 6 jones v. Stroud, 2 C. & P. 196.
Truman, 2 Y. & Col. 341. Where A was
CHAP. III.J EXAMINATION OP WITNESSES. 481
before, a witness was permitted to recur to his own deposition,
made some time during the year in which the fact happened.'
In another case, the witness was not permitted to refresh his
memory witli a copy of a paper, made by himself six months
after he made the original, though the original was proved to
have been so written over with figures as to have become unin-
telligible ; the learned judge saying, that he could only look at
the original memorandum, made near the time.^ And in a still
later case, where it was proposed to refer to a paper, which the
witness had drawn up for the party who called him, after the
cause was set down for trial, the learned judge refused it;
observing that the rule must be confined to papers written con-
temporaneously with the transaction. 2 But where the witness had
herself noted down the transactions from time to time as they
occurred, but had requested the plaintiff's solicitor to digest her
notes into the form of a deposition, which she afterwards had
revised, corrected, and transcribed, the Lord Chancellor indig-
nantly suppressed the deposition.*
§ 439. If a witness has become blind, a contemporaneous writing
made by himself, though otherwise inadmissible, may yet be read
over to him, in order to excite his recollection.^ So, where a
receipt for goods was inadmissible for want of a stamp, it was
permitted to be used to refresh the memory of a witness who heard
it read over to the defendant, the latter at the same time admitting
the receipt of the goods.^
1 Vaughan v. Martin, 1 Esp. 440. ' Jacob v. Lindsay, 1 East, 460. In
a Jones v. Stroud, 2 C. & P. 196, per Scotland, the subject of the use and proper
Best, C. J. In this case, the words in the office of writings, in restoring the recollec-
copy and as sworn to by the witness, were tion of witnesses, has been well considered
spoken to the plaintiff; but on producing and settled ; and the law as practised in
the original, which, on further reflection, the courts of that country, is stated with
was confirmed by the witness, it appeared precision by Mr. Alison, in liis elegant and
that they were spoken of him. The ac- philosophical Treatise on the Practice of
tion was slander ; and the words being laid the Criminal Law. "It is frequently maJe
according to the copy, for this variance a question," he observes, "whether a wit-
tlie plaintiff was nonsuited. ness may refer to notes or memorandums
^ Stoinkeller v. Newton, 9 C. & P. 313. made to assist his memory. On this sub-
[So where a witness, five months after the ject, the rule is, that notes or memoranda
occurrence of certain events, had, at the made up by the witness at the moment, or
request of a party interested, made a state- recently after the fact, may be looked to
ment in writing, and swore to it, he was in order to refresh his memory ; but if
not allowed to testify to his belief in its they were made up at the distance of
correctness. Spring Garden Ins. Co. v. weeks or months thereafter, and still
Kiley, 15 Md. 54.] more, if done at the recommendation of
* Anon, cited by Lord Kenyon, in Doe one of the parties, they are not admissible.
V. Perkins, 3 T. B. 752. See also Sayer It is accordingly usual to allow witnesses
V Wagstaff, 5 Beav. 462. to look to memorandums made at the
' Catt V, Howard, 3 Stark. R. 3. time, of dates, distances, appearances on
41
482
LAW OP EVIDENCE.
[part tit.
§ 440. In general, though a witness must depose to such faeti
only as are within his own knowledge, yet there is no rule that
requires him to speak with such expression of certainty as to ex-
clude all doubt in his mind. If the fact is impressed on his
memory, but his recollection does not rise to positive assurance, it
is still admissible, to be weighed by the jury ; but if the impression
is not derived from recollection of the fact, and is so slight as to
render it probable that it may have been derived from others, or
may have been some unwarrantable deduction of tlie witness's own
mind, it will be rejected.^ And though the opinions of witnesses
are in general not evidence, yet on certain subjects some classes
of witnesses may deliver their own opinions, and on certain other
subjects any competent witness may express his opinion or belief;
and on any subject, to which a witness may testify, if he has any
recollection at all of the fact, he may express it as it lies in his
dead bodies, lists of stolen goods or the
like, before emitting his testimony, or
even to read such notes to the jury, as his
eyidence, he having first sworn that they
were made at the time, and faithfully
done. In regard to lists of stolen goods,
in particular, it is now the usual practice
to have inventories of them made up at
the time from the information of the wit-
ness in precognition, signed by him, and
libelled on as a production at the trial, and
he is then desired to read them, or they
are read to him, and he swears that they
contain a correct list of the stolen articles.
In this way much time is saved, at the
trial, and much more correctness and ac-
curacy is obtained, than could possibly
have been expected, if the witness were
required to state fl-om memory, all the par-
ticulars of the stolen articles, at the dis-
tance perhaps of months from the time
when tliey were lost. With the excep-
tion, however, of such mehiorandums,
notes, or inventories made up at the time,
or shortly after the occasion Ubelled, a
witness is not permitted to refer to a writ-
ten paper as containing his deposition ; for
that would annihilate the whole advan-
tages of parol evidence, and viva voce ex-
amination, and convert a jury trial into a
mere consideration of written instruments.
There is one exception, however, properly
introduced into this rule ; in the case of
medical or other scientific reports or cer-
tificates, which are lodged in process be-
fore the trial, and libelled on as productions
in the indictment, and which the witness
is allowed to read as Ws deposition to the
jury, confirming it at its close by a dec-
laration on his oath, that it is a true report.
The reason of this exception is founded in
the consideration, that the medical or other
scientific facts or appearances, which are
the subject of such a report, are generally
so minute and detailed, that they cannot
with safety be intrusted to the memory of
the witness, but much more reliance may
be placed on a report made out by him at
the time, when the facts or appearances
are fresh in his recollection ; while, on the
other hand, such witnesses have generally
no personal interest in the matter, and
from their situation and rank in life, are
much less liable to suspicion than those of
an inferior class, or more intimately con-
nected with the transaction in question.
Although, therefore, the scientific witness
is always called on to read his report, as
affording the best evidence of the appear-
ances he was called on to examine, yet he
may be, and generally is, subjected to a
further examination by the prosecutoi, or
a cross-examination on the prisoner's part ;
and if he is called on to state any facts in
the case, unconnected with his scientific
report, as conversations with the deceased,
confessions heard by him from the panel,
or the like, utitw jure coinmune, he stands
in the situation of an ordinary witness,
and must give his evidence verbally in
answer to the questions put to him, and
can only refer to jottings or memorandums
of dates, &c., made up at tlij time, to re-
fresh his memory, like any other person
put into the box." See Alison's Practice,
540-5i2.
1 Clark V. Bigelow, 4 Shepl. 246 ; i Nut*
V. Nute, 41 N. H. 60.1
CHAP. III.]
EXAMINATION OF WITNESSES.
483
memory, of which the jury will judge. ^ Thus it is the constant
practice to receive in evidence any witness's belief of the identity
of a person, or that the handwriting in question is or is not the
handwriting of a particular individual, provided he has any knowl-
edge of the person or handwriting ; and if he testifies falsely as
to his belief, he may be convicted of perjury.^ On questions of
science, skill, or trade, or others of the like kind, persons of skill,
sometimes called experts^ may not only testify to facts, but are
permitted to give their opinions in evidence. Thus, the opinions
of medical men are constantly admitted, as to the cause of disease,
or of death, or the consequences of wounds, and as to the sane or
insane state of a person's mind, as collected from a number of
circumstances, and as to other subjects of professional skill.* And
such opinions are admissible in evidence, though the witness
founds them, not on his own personal observation, but on the case
itself, as proved by other witnesses on the trial.^ But where sci-
1 Miller's case, 3 Wils. 427, perLd. Ch.
Just. DeGrey ; McNally's Evid. 262, 263.
And see Carmalt v. Post, 8 "Watts, 411,
per Gibson, C. J.
2 Rex V. Pedley, Leacli, Cr. Gas. 365,
case 152.
2 Experts, in the strict sense of the
word, are "persons instnicted by expe-
rience." 1 Bouvier's Law Diet, in verb.
But more generally speaking, the te'riu
includes all " men of science," as it was
used by Ld. Mansfield in Folkes v. Chadd,
3 Doug. 157 ; or, " persons professionally
acquainted with the science or practice "
in question; Strickland on Evicl. p. 408;
or "conversant with the subject-matter,
on questions of science, skill, trade, and
others of the like kind." Best's Princi-
ples of Evidence, § 346. The rule on this
subject is stated by Mr. Smith in his note
to Carter v. Boehm, 1 Smitli's Lead. Gas.
286. " On the one hand," he observes,
" it appears to be admitted that the opinion
of witnesses possessing peculiar skill is ad-
missible,' whenever the subject-matter of
inquiry is such, that inexperienced persons
are unlikely to prove capable of farming a
correct judgment upon it without such
aiisistance ; in other words, when it so far
partake3 of the nature of a science, as to
require a course of previoys habit, or
Btudy, in order to the attainment of a
knowledge of it ; see Folkes v. Ghadd, 3
Doug. 157 ; E. v. Searle, 2 M. & M. 75 ;
Thornton v. R. E. Assur. Co., Peake, 25;
Chaurand v. Angerstein, Peake, 44 ; while
on the other hand, it does not seem to be
contended that the opinions of witnesses
can be received, when the inquiry is into
a subject-matter, the nature of which is
not such as to require any peculiar habits
or study, in order to qualify a man to un-
derstand it." It has been held unneces-
sary that the witness should be engaged
in the practice of his profession or science ;
it being sufilcient that he has studied it.
Thus, the fact that the witness, though he
had studied medicine, was not then a prac-
tising physician, was held to go merely to
his credit. TuUis v. Kidd, 12 Ala. 648.
[Tlie rule determining the subjects upon
which experts may testify, and the rule
prescribing the qualifications of experts,
are matters of law ; but whether a witness
offered as an expert, has those qualifica-
tions, is a question of fact to be decided
by the court at the trial. Jones v. Tucker,
41 N. Hamp. 546.]
^ Stark. Evid. 154; Phil. & Am. on
Evid. 899 ; Tait on Evid. 433 ; Hathorn v.
King, 8 Mass. 371 ; Hoge v. Fisher, 1 Pet.
G. C. R. 163 ; Eolkes v. Ghadd, 3 Doug.
157, per Ld. Mansfield ; McNally's Evid.
329-335, ch. 30. [A non-professional wit-
ness may give his opinion upon the sanity
of a party, as the result of his own obser-
vations, accompanied with a statement of
the facts, whicli he has observed, but he
cannot give an opinion upon the facts
stated by other witnesses. Dunham's Ap-
peal, 27 Gonn. 193.]
6 Rex V. Wright, Russ. & Ry. 156;
Rex u. Searle, 1 M. & Roh. 75 ; McNaugh-
ten's case, 10 CI. & Ein. 200, 212; Paige
V. Hazard, 5 Hill, 603. [But an expert
cannot be allowed to give his opinion upon
484 LAW OF EVIDENCE. [PART IH.
entific men are called as witnesses, they cannot give their opinions
as to the general merits of the cause, but only their opinions upon
the facts proved.^ And if the facts are doubtful, and remain to be
found by the jury, it has been held improper to ask an expert who
has heard the evidence, what is his opinion upon the case on trial ;
though he may be asked his opinion upon a similar case, hypo-
thetically stated.^ Nor is the opinion of a medical man admissible,
that a particular act, for which a prisoner is tried, was an act of
insanity .2 So, the subscribing witnesses to a will may testify their
opinions, in respect to the sanity of the testator at the time of
executing the will ; though other witnesses can speak only as to
facts ; for the law has placed the subscribing witnesses about the
testator, to ascertain and judge of his capacity.* Seal engravers
may be called to give their opinion upon an impression whether it
was made from an original seal, or from an impression.^ So, the
opinion of an artist in painting is evidence of the genuineness of
a picture.^ And it seems, that the genuineness of a postmark
may be proved by the opinion of one who has been in the habit
of receiving letters with that mark.'' In an action for breach of
a promise to marry, a person accustomed to observe the mutual
deportment of the parties may give in evidence his opinion upon
the question, whether they were attached to each other.^ A ship-
builder may give his opinion as to the seaworthiness of a ship, even
on facts stated by others.^ A nautical person may testify his
a case based upon statements made to him tion, conduct, and manners of the person
by parties out of court and not under oath, whose sanity is in question, it has been
Heald v. Thing, 45 Maine, 392.] held, upon grave consideration, that the
1 Jameson v. Drinkald, 12 Moore, 148. witness may depose, not only to particular
But professional books, or books of sci- facts, but to his opinion or belief as to the
ence (e. g. medical books), are not admis- sanity of the party, formed from such actu-
sible in evidence ; though professional al observation. Clary v. Clary, 2 Ired. E.
witnesses may be asked the grounds of 78. Such evidence is also admitted in
their judgment and opinion, which might the Ecclesiastical courts. See Wheeler v.
in some degree be founded on these books Alderson, 3 Hagg. Eccl. K. 574, 604, 605.
as a part of their general knowledge. Col- ^ Per Ld. Mansfield, in Folkes "
lier V. Simpson, 5 C. & P. 73 ; [Common- Chadd, 3 Doug. 157.
wealth V. "Wilson, 1 Gray, 338.] But see '^ Ibid.
Bowman v. Woods, 1 Iowa, E. 441. ' Abbey v. Lill, 5 Bing. 299, per Gase-
2 Sills V. Brown, 9 C. & P. 601. lee, J. [The testimony of experts is re-
8 Eex V. Wright, Euss. & E. 456. oeivable, in corroboration of positive evi-
* Chase v. Lincoln, 3 Mass. 237 ; Poole dence to prove that, in their opinion, the
V. Eichardson, Id. 330 ; Eambler ?;. Tryon, whole of an instrument was written by the
7 S. & E. 90, 92 ; Buckminster v. Perry, 4 same hand, with the same pen and ink,
Mafls. 598 ; Grant v. Thompson, 4 Conn, and at the same time. Fulton v. Hood,
203. And see Sheafe t>. Eowe, 2 Lee, E. 34 Penn. 365.]
415 ; Kinleside v. Hairison, 2 Phil. 623 ; ' McKee v. Nelson, 4 Cowen, 355.
Wogan V. SmaU, 11 S. & E. 141. But » Thornton v. The Eoyal Exch. Assur.
where the witness has had opportunities Co. 1 Peake, E. 25 ; Chauraud v. Anger-
for knowing and observing the conversa- stein. Id. 43 ; Beckwith v. Siilebotham, 1
CHAP. III.J EXAMINATION OP WITNESSES. 485
opinion whether, upon the facts proved by the plaintiff, the collision
of two ships could have been avoided by proper care on the part of
the defendant's servants.^ Where the question was, whether a
bank which had been erected to prevent the overflowing of the sea,
had caused the choking up of a harbor, the opinions of scientific
engineers, as to the effect of such an embankment upon the harbor,
were held admissible in evidence.^ A secretary of a fire insurance
company, accustomed to examine buildings with reference to tlae
insurance of them, and who, as a county commissioner, had fre-
quently estimated damages occasioned by the laying-out of railroads
and highways, has been held competent to testify his opinion, as
to the effect of laying a railroad within a certain distance of a
building, upon the value of the rent, and the increase of the rate
of insurance against fire.^ Persons accustomed to observe the
habits of certain fish liave been permitted to give in evidence their
opinions, as to the ability of tlie fish to overcome certain obstruc-
tions in the rivers which they were accustomed to ascend.^ A per-
son acquainted for many years with a certain stream, its rapidity
of rise in times of freshet, and the volume and force of its waters
in a certain place, may give his opinion as to the sufficiency of a
dam erected in that place, to resist the force of the flood.^ A prac-
tical surveyor may express his opinion, whether the marks on
trees, piles of stone, &c., were intended as monuments of bounda-
lios ; " but he cannot be asked whether, in his opinion, from the
objects and appearances which he saw on the ground, the tract he
surveyed was identical with the tract marked on a certain dia-
gram.^
Campb. 117. So of nautical men, as to Eailw. Co. i My. & C. 116, 120 ; 1 RaUw.
navigating a ship. Malton v. Nesbit, 1 C. Cas. 576.
& P. 70. Upon the question, whether cer- * Cottrill v. Myrick, 3 Fairf. 222.
tain implements were part of the necessary ^ Porter v. Poquonnoc Man. Co. 17
tools of a person's trade, the opinions of wit- Conn. 249.
nesses are not admissible ; but the jury are * Davis v. Mason, 4 Pick. 156.
to determine upon the facts proved. Whit ' Farar v. Warfleld, 8 Mart. k. a. 695,
marsh v. Angle, 3 Am. Law Journ. 274, 696. So, the opinion of an experienced
N. s. seaman has been received, as to the proper
1 Fen wick v. Bell, 1 Car. & Kir. 312. stowage of a cargo; — ^ Price v. Powell, 8
" Folkes V. Chadd, 3 Doug. 157. Const. 322; — and of a mason, as to the
^ Webber v. Eastern Railroad Co. 2 time requisite for the walls of a house to
Met. 147. Where a point involving ques- become so dry as to be safe for human
tions of practical science is in dispute in habitation; Smith v. Gugerty, 4 Barb. s,c.
chancery, the court will advise a reference R. 614 ; and of a master, engineer, and
of it to an expert in that science, for his builder of steamboats, as to the manner of
opinion upon the facts; which will be a collision, in view of the facts proved.
adopted by the court as the ground of its The Clipper v. Logan, 18 Ohio, 375. [A
order. Webb v. Manchester & Leeds witness, even if an expert as to hand-
41*
486 LAW OF EVIDENCE. [PART III.
[*§440a. Some nice, aud often difficult, questions will arise, in
regard to the particular matters and points with reference to which
witnesses may be allowed to give testimony by way of opinion.
We have attempted to illustrate the question in various modes, on
former occasions.^ But it is not practicable to make the rule more
precise than a mere approximation towards definiteness. Facts
which are latent in themselves, and only discoverable by way of
appearances more or less symptomatic of the existence of the main
fact, may, from their very nature, be shown by the opinion of wit-
nesses as to the existence of such appearances or symptoms : such
are the state of health or of the affections, as already stated. Sanity
is a question of the same character. So too, upon inquiries as to the
state or amount of one's property, when the facts are too numer-
ous and evanescent to be given in detail, those acquainted with the
facts are allowed to express an opinion which is the mere grouping
of the facts. So too, as to the marketable condition and value of
property, and many other questions where it is not practicable to
give more definite knowledge, opinions are received. In some cases,
these opinions must come from experts, who have acquired special
skill in detecting the connection between certain external symp-
toms and their latent causes ; and in other cases, all persons are
supposed to have such knowledge and experience as to entitle their
opinions to be weighed by the jury. The testimony of experts is
necessary upon all such questions as require special study and ex-
perience in order to form reliable judgments. The distinction is
fairly enough illustrated by the question of sickness or health.
All witnesses are competent to form a reliable opinion whether
one whom they have opportunity to observe appears to be sick or
well at the time ; or whether one is seriously disabled by a wound
or a blow. But if the inquiry were more definite, as to the
writing, cannot give his opinion as to the N. Hamp. 109 ; Rochester v. Chester, 3 N.
indor?rment on a note having been made Hamp. 349 ; Peterborougli v. Jaffrey, 6
as lon^-'piuvious as six years. Sackett v. N. Hamp. 462. And see Whipple v. Wal-
Spencc", 29 Barb. 180.] But mere opin- pole, 10 IST. Hamp. 130, where tliis rule is
ions as to the amount of damages are not expounded. [But see Vandine w. Burpee,
ordinarily to be received. Harger v. Ed- 13 Met. 288 ; Shaw v. Charlestown, 2
monds, 4 Barb. s. c. R. 256; Giles v. Gray, 107. The value of the reversion
( )'TooIe, Id. 261. See also Walker v. Pro- of land over which a railroad is located is
teclion Ins. Co. 16 Shepl. 317. Nor are not properly provable by experts. Boston
mere opinions admissible respecting the & Worcester R. Co. v. Old Colony R. Co.
value of property in common use, such as 3 Allen, 142 ; Mish v. Wood, 34 Penn.
horses and wagons, or lands, concerning 451.]
which no particular study is required, or i Railways, 13S, 134, and notes ; 'WiUs,
Bkill possessed. Robertson v. Stark, 15 Part 1, §§ 37-39.
CHAP. III.j EXAMINATION OF WITNESSES. 487
particular state of disease under whicli one is laboring, and its
curable or fatal character ; or as to the dangerous or fatal char-
acter of a wound or blow ; or in what particular mode, or with whjat
species of weapon or instrument, such blow or wound was inflicted,
special study, observation, and experience might be requisite in
order to express an opinion entitled to the dignity of being re-
garded as evidence.
In a recent case ^ it was said, in order to entitle one to testify as
an expert, it must first be shown that he has acquired actual skill
and scientific knowledge upon the subject ; and that mere oppor-
tunity for observation is not sufficient, The term " expert "
seems to imply both superior knowledge and practical experience
in the art or profession ; but, generally, nothing more is . required
to entitle one to give testimony as an expert than that he has
been educated in the particular art or profession. The cases
are very numerous wliere the opinions of unprofessional wit-
nesses are received, as for instance, as to the value of property,^
as to one's pecuniary responsibility ; ^ afld an expert may state
general facts, which are the results of scientific knowledge or
professional skill.* The testimony of experts is not admissible
upon matters of judgment within the knowledge and experi-
ence of ordinary jurymen ; as, for instance, to what degree of
heat it is prudent to expose wet hemlock staves.^ So, whether
one appeared to be intoxicated, may be shown by the opinion of
ordinary witnesses.^
Matters of -general history may be assumed as within the
knowledge of court and jury, but particular facts relevant to the
cause cannot be proved by reading from a published book, nor
can medical books or those upon farming be cited by counsel ; but
medical witnesses may be asked or cross-examined whether they
have read a particular book ; and books of standard authority in
literature may be referred to by counsel, in order to show the
^ [* Page V. Parker, 40 N. H. R. 47 ; " White v. Ballou, 8 Allen, 408 ; New
Pelamourges v. Clarke, 9 Iowa, 1. England Glass Co. v. Lovell, 7 Cush. 321.
^ Nellisv.McCani, 35 Barb. 115; Derby But the p^ic^^ to be paid for the use of a
V. Gallup, 5 Min. 119 ; McDonald v. Chris- horse and wagon may be shown by the
tie, 42 Barb. 36. But in New Hampshire opinion of those who have had experience
the rule is otherwise. Low v. C. & P. E. in such matters. Brady v. Brady, 8 AUen,
Railway Co. 101.
8 Bank of Middlebury v. Rutland, 33 « People «. Eastwood, 14 N. Y Ct
Vt. R. 414. App. 562.J
* Chapman, J., in Emerson u. Lowell
Gas Light Co. 6 AUen, 148.
488 LAW OF EVIDENCE. [PAET HI,
general course of construction, and explain the sense in wMch
words are used.i]
§ 4405. In weighing the testimony of biased witnesses, however,
a distinction is observed between matters of opinion and matters of
fact. Such a witness, it is said, is to be distrusted when he speaks
to matters of opinion; but in matters of fact, his testimony is to
receive a degree of credit in proportion to the probability of the
transaction, the absence or extent of contradictory proof, and the
general tone of his evidence.^
§441. But witnesses are Tiot receivable to state their views on
matters of legal or moral obligation, nor on the manner in which
other persons would probably be influenced, if the parties acted in
one way rather than in another.^ Therefore the opinions of medi-
cal practitioners upon the question, whether a certain physician
had honorably and faithfully discharged his duty to his medical
brethren, have been rejected.* So the opinion of a person con-
versant with the business of insurance, upon the question, whether
certain parts of a letteuf which the broker of the insured had re-
ceived, but which he suppressed when reading the letter to the
underwriters, were or were not material to be communicated, has
been held inadmissible ; ^ for, whether a particular fact was mate-
rial or not in the particular case is a question for the jury to
decide, under the circumstances.^ Neither can a witness be asked,
what would have been his own conduct in the particular case.^
But in an action against a broker for negligence, in not procuring
the needful alterations in a policy of insurance, it has been held,
that other brokers might be called to say, looking at the policy,
1 Darby v. Ousley, 1 H. & N. 1,] • would not be regarded by him as dishon-
2 Lockwood V. Lockwood, 2 Curt. 209; orable. Greville v. Chapman 5 Ad &E1.
BiUon 0. Dillon, 3 Curt. 96, 102. [Where 731, N. s.
a party to a suit is a competent witness he ^ Ramadge v. Ryan, 9 Bino-. 333.
may give his testimony as an expert, if * Campbell v. Rickards, 5 B. & Ad.
qualified. Dickenson v. Fitchburg, 13 840, in which the case of Rickards v.
Gray, 546J Murdock, 10 B. & C. 527, and certain
8 Per Ld. Denman, C. J., in Campbell other decisions to the contrary, are con-
0. Rickards, 6 B. & Ad. 840 ; 2 N. & M. sidered and overruled. See, accordingly,
542, s. c. But where a libel consisted in Carter v. Boehm, 3 Burr, 1905, 1918;
imputing to the plaintiff that he acted dis- Durrel v. Bederley, 1 Holt's Ca!s. 283 '■
lionorably, in withdrawing a horse which Jefferson Ins. Co. v. Cotheal, 7 Wend. 72^
liad been entered for a race ; and he proved 79 ; [Joyce v. Maine Insurance Co.' 45
by a witness that the rules of the jockey Maine, 168.]
club, of which he was a member, permit " Rawlins v. Desborough, 2 M. & Rob.
ted owners to withdraw their horses be- 329 ; Westbury v. Aberdein, 2 M. & W.
fore the race was run ; it was held that the 267.
witness, on cross-examination, might bo ' Berthon v. Loughman, 2 Stark. R.
asked whether such conduct as he had 258.
described as lawful under those rules,
CHAP, fli.]
EXAMINATION OP WITNESSES.
489
the invoices, and the letter of instructions, wliat alterations a skil-
ful broker ought to have made.^
§ 442. When a party offers a witness in proof of his cause, he
thereby, in general, represents him as worthy of belief. He is
presumed to know the character of the witnesses he adduces ; and
having thus presented them to the court, the law will not permit the
farty afterwards to impeach their general reputation for truth, or to
inpugn their credibility by general evidence, tending to show them
to be unworthy of belief. For this would enable him to destroy
the witness if he spoke against him, and to make him a good wi1>
ness if he spoke for him, with the means in his hand of destroying
his credit if he spoke against him.^
§ 443. But to this general rule there are some exceptions. For,
where the witness is not one of the party's own selection, but is
1 Chapman v. Walton, 10 Bing. 57.
Upon the question, whether the opinion
of a person, conversant with the business
of insurance, is admissible, to show that
the rate of the premium would have been
affected by the communication of partic-
ular facts, there has been much diversity
of opinion among judges, and the cases
are not easily reconciled. See Phil. &
Am. on Evid. 899 ; 2 Stark. Evid. 886.
But the later decisions are against the ad-
missibility of the testimony, as a general
rule. See Campbell v. Rickards, 5 B. &
Ad. 840. Perhaps the following observa-
tions of Mr. Starkie, on this subject, will
be found to indicate the true principle of
discrimination among the cases which call
for the application of the rule. " When-
ever the fixing the fair price and value
upon a contract to insure is matter of
skill and judgment, acting according to
certain general rules and principles of cal-
culation, applied to the particular circum-
stances of ea,ph individual case, it seems
to be matter of evidence to show
whether the facts suppressed would have
been noticed as a term in the particular
calculation. It would not be difficult to
propound instances, in which tlie materi-
ality of the fact withheld would be a
question of pure science ; in other in-
stances, it is very possible that mere
common sense, independent of any pecul-
iar skill or experience, would be sufficient
to comprehend that the disclosure was
material, and its suppression fraudulent,
although not to understand to what ex-
tent the risk was increased by tliat fact.
In intermediate cases, it seems to be dif-
ficult in principle wholly to exclude the
evidence, although its importance may
vary exceedingly according to circum
stances." See 2 Stark. Evid. 887, 888
(3d Lond. edit.), 649 (6th Am. edit).
2 Bull. N. P. 297 ; Ewer v. Ambrose,
3 B. & C. 746; Stockton o. Demuth, 7
Watts, 39 ; Smith v. Price, 8 Watts, 447.
But wliere a witness testified to the jury,
contrary to her statement in a former
deposition given in the same cause, it was
held not improper for the judge to order
the deposition to be read, in order to im-
peach the credit of the witness. Eex v.
Oldroyd, Rus. & Ry. 88. [A witness who
has testified in chief that he does not
know certain facts cannot, although he
shows a disposition to conceal what
he knows, be asked by the party calling
him whether he did not on a former occa-
sion swear to his knowledge of those facts,
as the object of the question could only
be "to disparage the witness and show
him unworthy of credit with the jury,
which was inadmissible." Commonwealth
V. Welch, 4 Gray, 535, 537.] [* The doc-
trine of the case just cited is sustained by
the general course of deoision in America
upon the point, as we have already seen,
ante, § 434 a ; Sanehe^ v. The People, 22
N. Y. App. 147. It is very certain that
no such course of examination could be
allowed for the mere purpose of discredit-
ing the witness. The rule extends even
to the case of one party making his
adversary a witness. Holbrook v. Mix, 1
E. D. Smith, 154. But it has seemed t»
us that this course of inquiry, as to the
witness having given a different account
of the matter on another occasion, is
fairly susceptible of being viewed as an
allowable mode of cross-exair ^na'Son, in
order to induce an unwiUiD,< itness to
490 LAW OP EVIDENCE. [PART HI,
one whom the law obliges him to call, such as the subscribing wit-
ness to a deed, or a will, or the like : here he can hardly be con-
sidered as the witness of the party calling him, and therefore, as it
seems, his character for truth may be generally impeached.^ But,
however this may be, it is exceedingly clear that the party, calling
a witness, is not precluded from proving the truth of any particular
fact, by any other competent testimony, in direct contradiction to
what such witness may have testified ; and this not only where it
appears that the witness was innocently mistaken, but even where
the evidence may collaterally have the effect of showing that he
was generally unworthy of belief.^
§ 444. Whether it be competent for a party to prove that a wit-
ness whom he has called, and whose testimony is unfavorable to
his cause, had previously stated the facts in a different manner, is a
question upon which there exists some diversity of opinion. On
the one hand, it is urged, that a party is not to be sacrificed to his
witness ; that he is not represented by him, nor identified with
him ; and that he ought not to be entrapped by the arts of a de-
signing man, perhaps in the interest of his adversary.^ On the
other hand, it is said, that to admit such proof would enable the
party to get the naked declarations of a witness before the jury,
operating, in fact, as independent evidence; and this, too, even
where the declarations were made out of court, by collusion, for
the purpose of being thus introduced.* But the weight of authority
seems in favor of admitting the party to show, that the evidence
refresh his memory, and state the matter 2 Stark. E. 334 ; Ewer v. Ambrose, 3 B.
more favorably to the party. And if we & C. 746 ; 6 D. & E. 127 ; 4 B. & C.
allow the party to cross-examine his own 25, s. c. ; Friedlander v. London Assiu:.
witness because he seems reluctant or Co. 4 B. & Ad. 193; Lawrence v. Bar-
partial, it would seem proper that he ker, 5 Wend. 305, per Savage, C. J. ;
should have the ordinary range of cross- Cowden v. Reynolds, 12 ^. & R. 281 ;
examination, so far as it has any tendency Bradley v. Ricardo, 8 Bing. 67 ; Jackson
to elicit a statement of the facts more fa- v. _Leek, 12 Wend. 105 ; Stockton v.
vorable to the party, and is not exclusive- Demuth, 7 Watts, 39 ; Brown v. Bellows,
ly of a tendency to discredit his own wit- 4 Pick. 179, 194 ; Perry v. Massey, 1
ness. Post, § 444 a.] Bail. 32; Spencer v. White, 1 Iredell, R.
1 Lowe V. JoUiffe, 1 W. Bl. 365 ; Poth. 239 ; Dennett v. Dow, 5 Shepl. 19 ; Mc
on Obi. by Evans, vol. 2, p. 232, App. Arthur v. Hurlburt, 21 Wend. 190 ; Attor.-
No., 16 ; Williams v. Walker, 2 Rich. Eq. Gen. v. Hitchcock, 1 Exch. R. 91, 11 Jur.
R. 291. And see Goodtitle v. Clayton, 4 378 ; The Loohlibo, 14 Jur. 792, 1 Eng,
Burr. 2224; Cowden v. Reynolds, 12 S. L. & Eq. Rep. 645; [Hall v. Houghton,
& R. 281. But see Whitaker v. Salis- 37 Maine, 411 ; Seavy v. Dearborn, 19 N.
bury, 15 Pick. 544, 545; Dennett ;;. Dow, H. 351 ; Brown v. Wood, 19 Miss. 475.]
5 Shopl. ]9; Br-iwn v. Bellows, 4 Pick. ^ phii. & Am. on Evid. 904, 905; 2
V? : fShorey v. H^^sey, 82 Maine, 579.] Phil. Evid. 447.
/ ^-A. T".. P .^9'', Alexander v. Gib- * Ibid. ; Smith v. Price, 8 Watts, 447;
. ' C»~^pt' i>55 , Richardsoii v. Allan, Wright v. Beckett, 1 M. & Rob. til, 428,
per Bolland, B.
CHAP. III.] EXAMINATION OP WITNESSES. 491
has taken him by surprise, and is contrary to the examination
of the witness preparatory to the trial, or to what the party had rear
son to believe he would testify; or, that the witness has recently
been brought under the influence of the other party, and has de-
ceived the party calling him. For it is said that this course is
necessary for his protection against the contrivance of an artful
witness ; and that the danger of its being regarded by the jury as
substantive evidence is no greater in sucli cases, than it is where
the contradictory declarations are proved by the adverse party.^
[*§ 444a. The author seems in the preceding section to have,
stated the doctrine of the right of the party to contradict his own
witness who unexpectedly testifies against him, somewhat more
strongly than it is laeld by the Bnglisli courts ; aiyl the rule of the
American courts is even more restricted than that of the English
courts in that respect.^ The question is extensively discussed in
the case of Melhuish v. Collier ^ both by counsel and by the different
members of the court, and the conclusion arrived at is, that you
may cross-examine your own witness, if he testify contrary to what
you had a right to expect, as to what he had stated in regard to the
matter on former occasions, either in court or otherwise, and
thus refresh the memory of the witness, and give him full opportu-
nity to set the matter right if he will ; and at all events to set
yourself right before the jury. But you cannot do this for the
1 Wright V. Beckett, 1 M. & Eob. 414, witness may still go on to prove his case
416, per Ld. Denman ; Rice v. New Eng. by other witnesses, notwitiistanding their
Marine Ins. Co. 4 Pick. 439 ; Rex n. Old- testimony, to relative facts, may contra-
royd, Russ. & Ry. 88, 90, per Ld. Ellen- diet, and thus indirectly discredit, the for-
borough, and Mansfield, C. J. ; Brown v. mer witness. Thus, in an action for an
Bellows, 4 Pick. 179 ; The State v. Nor- assault and battery, if the plaintiff's first
ris, 1 Hayw. 437, 438 ; 2 Phil. Evid. 450- witness testifies that the plaintiff, in con-
463; Dunn «._ Aslett, 2 M. & Rob. 122; versation, ascribed the injury to an acci-
Bank of Northern Liberties v. Davis, 6 dent, the plaintiff may prove that, in fact.
Watts & Serg, 285 ; infra, § 467, n. But no such accident occurred. And if the
see Holdsworth v. Mayor of Dartmouth, witness denies a material fact, and states
2 M. & Rob. 153 ; Regina v. Ball, 8 C. & that persons connected with the plaintiff
P. 745 ; and Regina v. Farr, 8 C. & P. offered him money to assert the fact, the
768, where evidence of this kind was plaintiff may not only still go on to prove
rejected. In a recent case, however, this the fact, but he may also disprove the
point has been more fully considered, and subornation ; for this latter fact has now
it was held, that if a witness unexpectedly become relevant, though no part of the
gives evidence adverse to the party call- main transaction, inasmuch as its truth or
ing him, the party may ask him if he has falsehood may fairly influence the belief
not, on a particular occasion, made a con- of the jury as to the whole case. Mel-
trary statement. And the question and huish v. Collier, 15 Ad. & El. 378, K. 8.
answer may go to the jury, with the rest [See The Lochlibo, 1 Eng. Law & Eq. 645.
of the evidence, the judge cautioning Greenough u. Eccles, 5 Com. B. Rep.
them not to infer, from the question n. s. 786.]
alone, that the fact suggested in it is true. '^ [* Ante, § 442, and Editor's note.
In such case, the party who called tho =15 Q..B. 878.
492 LAW OP EVIDENCE. [PART 10.
mere purpose oi discrediting the witness ; nor can you be allowed
to prove the contradictory statements of the witness upon other
occasions ; but must be restricted to proving the facts otherwise by
other evidence. And the same rule prevails in the courts of
Admiralty.^ And this seems to us to be placing the matter upon
its true basis.]
§ 445. When a witness has been examined in chief, the other
party has a right to cross-examine him.^ But a question often
arises, whether the witness has been so examined in chief, as to
give the other party this right. If the witness is called merely for
the purpose of producing a paper, which is to be proved by another
witness, he need not be sworn.^ Whether the right of cross-exam-
ination, that is, o£ treating the witness as the witness of the adverse
party, and of examining him by leading questions, extends to the
whole case, or is to be limited to the matters upon which he has
already been examined in chief, is a point upon which there is
some diversity of opinion. In England, when a competent witness
is called and sworn, the other party will, ordinarily, and in strict-
ness, be entitled to cross-examine him, though the party calling
him does not choose to examine him in chief ; * unless he was
sworn by mistake ; ^ or, unless an immaterial question having been
put to him, his further examination in chief has been stopped by
the judge.® And even where a plaintiff was under the necessity of
calling the defendant in interest as a witness, for the sake of formal
proof only, he not being party to the record, it has been held, that
he was thereby made a witness for all purposes, and might be.
cross-examined to the whole case.'^ In some of the American
1 The Lochlibo, 14 Jur. 792 ; 1 Eng. the whole case. Austin v. State, 14 Ark.
L. & Eq, 645. Under a late English stat- 555.] [* If a witness gives no testimony
ute, 17 & 18 Vic. c. 125, the English in his examination in chief, he cannot be
courts now allow the party to contradict cross-examined for the purpose of dis-
his own witness by showing a statement crediting him. Bracegirdle v. Bailey, 1
made by him in direct contradiction to his E. & F. 636.]
CTidenee.' Dean v. Knight, 1 F. & F. ^ Perry v. Gibson, 1 Ad. & El. 48 ;
433. Jacksont!. Thomason, 10 W. E. 42.] Davis v. Dale, 1 Mo. & M. 514; Read v.
^ If the witness dies after he has been James, 1 Stark. R. 132 ; Rush v. Smith,
examined in chief, and before his cross- 1 C. M. & R. 94 ; Summers v. Moseley, 2
examination, it has been held that his tes- C. & M. 477.
timony is inadmissible. Kissam v. For- * Rex v. Brooke, 2 Stark. R. 472;
rest, 25 Wend. 651. But in equity, its PhilUps v. Earner, 1 Esp. 357 ; Dickinson
admissibility is in the discretion of the v. Shee, 4 Esp. 67 ; Regina o. Murphy, 1
court, in view of the circumstances. Armst. Macartn. & Ogle, R. 204.
Gass V. Stinson, 3 Sumn. 104-108 ; infra, ^ Clifford v. Hunter, 3 C. & P. 16 ;
§ 554. (Where the state has summoned Rush v. Smith, 1 C. M. & R. 94; Wood
a witness, and the witness has been v. Mackinson, 2 M. & Rob. 273.
sworn, but not examined, the prisoner * Creevy v. Carr, 7 C. & P. 64.
has no right to cross-examine him as to ' Morgan u. Brydges, 2 Stark. R 314.
CHAP. III.] EXAMINATION OP WITNESSES. 493
courts the same rt,le has been adopted ;^ but in others, the contrary
has been held ; ^ and the rule is now considered by the Supreme
Court of the United States, to be well established, that a party has
no right to cross-examine any witness, except as to facts and cir-
cumstances connected with the matters stated in his direct exami-
nation ; and that if he wishes to examine him to otlier matters, he
must do so by making the witness his own, and calling him, as
such, in the subsequent progress of the cause. ^
§ 446. The power of cross-examination has been justly said to
be one of the principal, as it certainly is one of the most efficacious
tests, which the law has devised for the discovery of truth. By
means of it, the situatton of the witness with respect to the parties,
and to the subject of litigation, his interest, his motives, his in-
clination, and prejudices, his means of obtaining a correct and
certain knowledge of the facts to which he bears testimony, the
manner in which he has used those means, his powers of discern-
ment, memory, and description, are all fully investigated and
ascertained, and submitted to the consideration of the jury, before
whom he has testified, and who have thus had an opportunity of
observing his demeanor, and of determining the just weight and
value of his testimony. It is not easy for a witness, who is sub-
' Moody V. RoweU, 17 Pick. 490, 498 ; cretion of the judge. Commonwealth v.
Jackson v. Varick, 7 Cowen, 238^ 2 Eastman, 1 Cush. 189, 217. [*In a recent
Wend. 166 ; Fulton Bank v. Stafford, case in New Jersey, Donnelly v. State, 2
2 Wend. 483 ; [Linsley v. Lorely, 26 Vt. Dutcher, 463, it was decided, that the
123 ; Beal v. Nichols, 2 Gray, 262. This defendant in a criminal prosecution could
case decides also, that where a witness is not ask the prosecutor's witness any ques-
called only to prove the execution of an tion not connected with the examination
instrument, and is cross-examined gener- in chief, and which was material only by
ally by the other party, the party calling way of defence. But that is not eonsist-
him has not a right to cross-examine him ent with the general practice in such
upon the new matter upon which he was cases. All questions put upon cross-exam-
examined by the other party, unless al- ination are supposed to be material only
lowed by the court in its discretion to do to the adversary's case. The examina-
ao ; and he cannot except to the ruling of tion in chief is supposed to have drawn
the court that as a matter of la-n he has out all the testimony of the witness mate-
no right so to cross-examine him.] rial to the case of the party calling him.
'^ Harrison v. Rowan, 3 Wash. 580; And, whether thei cross-examination has
Kllm'aker v. Buckley, 16 S. & R. 77. reference to the same points raised by the
' The Philadelphia & Trenton Rail- direct examination, or to others material
road Co. v. Stimpson, 14 Peters, 448, 461 ; to the defence, the witness is to be re-
JFloyd V. Bovard, 6 Watts & Serg. 75. It garded as the witness of the party call-
is competent for the party, after having ing him. The only proper doubt is
closed his ease so far as relates to the evi- whether the adversary shall be allowed
dence, to introduce additional evidence, to open his case on cross-examination, or
by the cross-examination of the witnesses shall be allowed to recall the witnesses at
on the other side, for the purpose of more the proper time in putting in his own
fully proving facts not already sufficiently case ; and this rests in the discretion of
proved ; the subject being within the dis- the court. Post, § 447.]
VOL. I. 42
494
LAW OF EVIDENCE.
[PAET III.
jected to this test, to impose on a court or jury ; for however
artful the fabrication of falsehood may be, it cannot embrace all the
circumstances to which a cross-examination may be extended.''^
1 1 Stark. Bvid. 160, 161. On the sub-
ject of examimng and cross-examining
witnesses viva voce, Quintilian gives the
following instructions : " Primum est,
nosse testem. Nam timidus terreri, stultus
decipi, iracundus concitari, ambitiosus
inflari, longus protrahi potest; prudens
verb et constans, vel tanquam inimicus et
perrieax dimittendus statim, yei non
interrogatione, sed brevi interlocutione
patroni, refutandus est; aut aliquo, si
continget, urbane dicto reftigerandus ;
aut, si quid in ejus yitam dici poterit, in-
iamia criminum destruendus. Probos
quosdam et verecundos non aspere in-
cessere profUit; nam ssepe, qui adversus
insectantem pugnasseut, modestia miti-
gantur. Omnis autem interrogatio, aut in
causa est, aut extra causam. In causa
(sicut aceusatori prascepimus), patronus
quoque altius, unde nihil suspecti sit re-
petita percontatione, priora sequentibus
applicando, saepe eo perducit homines, ut
invitis, quod prosit, extorqueat. Ejusrei,
sine dubio, nee disciplina ulla in sclioUs,
nee exercitatio traditur ; et naturali magis
acumine, aut usu contingit hsec virtus.
* * * Extra causam quoque multa, quas
prosint, rogari solent, de vita testium
aliorum, de sua quisque, si turpitude, si
•humilitas, si araicitia accusatoris, si inim-
icitiae cum reo, in quibus aut dicant ali-
quid, quod prosit, aut in mendacio vel
cupiditate laedendi deprehendantur. Sed
in primis interrogatio debet esse circum-
specta; quia multa contra patrouos venuste
testis saepe respondet eique praecipue
vulgo favetur ; turn verbis quam maxime
ex medio sumptis; ut qui rogatur (is
autem ssepius imperitus) intelligat, aut ne
intelligere se neget, quod interrogantis non
leve frigus est." Quintil. Inst. Orat. lib.
5, c. 7. Mr. Alison's observations on the
same subject are equally interesting both
to the student and the practitioner. He
observes : " It is often a convenient way
of examining, to ask a witness, whether
such a thing was said or done, because the
thing mentioned aids his recollection, and
brings him to that stage of the proceed-
ing on which it is desired that he should
dilate. But this is not always fair; and
when any subject is approached, on which
his evidence is expected to be really im-
portant, the proper course is to ask him
what was done, or what was said, or to
tell liis own story. In this way, also, if
the witness is at all intelligent, a more
consistent and intelligent statement will
generally be got, than by putting separate
questions; for the witnesses generally
think over the subjects, on which they are
to be examined in criminal cases, so often,
or they have narrated them so frequently
to others, that they go on much more
fluently and distinctly, when allowed to
follow the current of their own ideas, than
when they are at every moment inter-
rupted or diverted by the examining
counsel. Where a witness is evidently
prevaricating or concealing the truth, it
is seldom by intimidation or steri^ness of
manner that he can be brought, at least
in this country, to let out the truth.
Such measures may sometimes terrify
a timid witness into a true confession ;
but in general they only confirm a hard-
ened one in his falsehood, and give him
time to consider how seeming contradic-
tions may be reconciled The most
effectual method is to examine rapidly
and minutely, as to a number of subor-
dinate and apparently trivial points in
his evidence, concerning which there is
little likelihood of his being prepared
with falsehood ready made; and where
such a course of interrogation is skilfully
laid, it is rarely that it fails in exposing
perjury or contradiction in some parts of
the testimony which it is desired to over-
turn. It frequently happens, that in the
course of such a rapid examination, facts
most material to the cause are elicited,
which are either denied, or but partially
admitted before. In such cases, there is
no good ground on which the facts thus
reluctantly extorted, or which have es-
caped the witness in an unguarded mo-
ment, can be laid aside by the jury.
Without doubt, they coine tainted from
the polluted channel through which they
are adduced ; but still it is generally easy
to distinguish what is true in such depo-
sitions from what is false, because the
first is studiously withheld, and the sec-
ond is as carefully put forth; and it fre-
quently happens, that in this way the
most important testimony in a case is
extracted from the most unwilling wit>
ness, which only comes with the more
effect to an intelligent jury, because it
has emerged by the force of examination,
in opposition to an obvious desire to con-
ceal." See Alison's Practice, 546, 547.
See also the remarks of Mr. Evans on
cross-examination, in his Appendix to
Poth. on Obi. No. 16, vol. 2, pp. 233, 23i
DHAP. in.] EXAMINATION OF WITNESSES. 495
§ 447. Whether, when a party is once entitled to cross-examine
a witness, this right continues through all the subsequent stages of the
cause, so that if the party should afterwards recall the same wit-
ness, to prove a part of his own case, he may interrogate him by
leading questions, and treat him as the witness of the party who
first adduced him, is also a question upon which different opinions
have been held. Upon the general ground, on which this course
of examination is permitted at all, namely, that every witness is
supposed to be inclined most favorably towards the party calling
him, there would seem to be no impropriety in treating him,
throughout the trial, as the witness of the party who first caused
him to be summoned and sworn. But as the general course
of the examination of witnesses is subject to the discretion of
the judge, it is not easy to establish a rule, which shall do more
than guide, without imperatively controlling the exercise of that
discretion.! A party, however, who has ;iot opened his own case,
will not be allowed to introduce it to the jury by cross-examining
the witnesses of the adverse party ,^ though, after opening it, he
may recall them for that purpose.
§ 448. We have already stated it as one of the rules, governing
the production of testimony, that the evidence offered must cor-
respond with the allegations, and be confined to the point in issue.
And we have seen that this rule excludes all evidence of collateral
facts, or those which afford no reasonable inference as to the
principal matter in dispute.^ Thus, where a broker was examined
to prove the market value of certain stocks, it was held that he
was not compellable to state the names of the persons to whom
he had sold such stocks.* As the plaintiff is bound j in the proof
of his case, to confine his evidence to the issue, the defendant is
in like manner restricted to the same point ; and the same rule
is applied to the respective parties, through all the subsequent
stages of the cause ; all questions as to collateral facts, except in
cross-examination, being strictly excluded. The reasons of this
1 1 Stark. Evid. 162; Moody v. Eowell, the defendant began to cross-examine him
17 Pick. 498 ; supra, § 435. as to matters of defence, and the court
^ Ellmaker v. Bulkley, 16 S. & R. 77 ; ruled — that this cross-examination should
1 Stark. Evid. 164. [The rule in the text be deferred until the defendant's case was
is stated to be the strict rule in Burke v. opened, when the witness being recalled,
Miller, 7 Cush. 547, 550, although a de- could be cross-examined by the defendant;
parture from it, being discretionary with and this ruling was sustained. See Moody
the judge, i? not open to exception. At v. Eowell, 17 Pick. 499.]
the trial of this cause in the court below, ^ Supra, §§ 51, 52.
file plaintiff called a witness merely to * Jonau v. Ferrand, 3 Rob. Louis. R.
lirbve the formal execution of a deed, and 366
496 LAW OF EVIDENCE. [PABT HT.
rule have been already intimated. If it were not so, the true
merits of the controversy might be lost sight of, in the mass of
testimony to other points, in which they would be overwhelmed ;
the attention of the jury would be wearied and distracted ; judicial
investigations would become interminable ; the expenses might be
enormous, and the characters of witnesses might be assailed by
.evidence which they could not be prepared to repel.-'- It may be
added, that the evidence not being to a material point, the witness
could not be punished for perjury, if it were false. ^
§ 449. In cross-examinations, however, this rule is not usually
applied -with the same strictness as in examinations in chief ; but
on the contrary, great latitude of interrogation is sometimes per-
mitted by the judge, in the exercise of his discretion, where, from
the temper and conduct of the witness, or other circumstances,
such course seems essential to the discovery of the truth ,^ or, where
the cross-examiner will undertake to show the relevancy of the
interrogatory afterwards, by other evidence.* On this head, it is
difficult to lay down any precise rule.^ But it is a well-settled
rule, that a witness cannot be cross-examined as to any fact, wTiich
is collateral and irrelevant to the issue merely for the purpose of
contradicting him by other evidence, if he should deny it, thereby
"jto^drs'credit his testimony.^ And, if a question is put to a witness
which is collateral or irrelevant to the issue, his answer cannot^
^be contradicted by the party who asked the question ; but it is
conclusive against him.^ But it is rwt irrelevant to inquire of the
1 PMl. & Am. on Evid. 909, 910. 157, 158 ; Palmer v. Trower, 14 Eng. L.
2 But a question, having no bearing on & Eq. R. 470. Thus, if he is aslced
the matter in issue, may be made material whether he has not said to A that a bribe
by its relation to the -witness's credit, and had been offered to him by the party by
&Jse swearing thereon will be perjury, whom he was called ; and he denies having
Eeg. V. Overton, 2 Mod. Cr. Gas. 263. so said; evidence is not admissible to prove
^ [Mayhew v. Thayer, 8 Gray, 172.] that he did so state to A. Attorney-Gen.
* Haigh V. Belcher, 7 C. & P. 389; su- v. Hitchcock, 11 Jur. 478; 1 Exch. R. 91,
pro, § 52. s. c. So where a witness was asked, on
s Lawrence v. Barker, 5 Wend. 805. cross-examination, and for the sole pur-
^ Spenceley v. De Willott, 7 East, 108 ; pose of affecting his credit, whether he
1 Stark. Evid. 164; Lee's case, 2 Lewin's had not made false representations of the
Cr. Gas. 154 ; Harrison v. Gordon, Id. 156 ; adverse party's responsibility, his negative
[Coombs V. Winchester, 39 N. Hamp. 1.] answer was held conclusive against the
*Henman v. Lester, 12 G. B. n. s. 776; party cross-examining. Howard v. City
s. c. 9 Jur. N. s. 601.] Eire Ins. Co. 4 Denio, 502. But where a
' Harris v. Tippett, 2 Campb. 627 ; witness, on his cross-examination, denied
' Odiorne v. Winkley, 2 Gall. 51, 53 ; Ware that he had attempted to suborn another
V. Ware, 8 Greenl. 52 ; Rex v. Watson, 2 person to testify in favor of the party who
Stark. R. 116, 149 ; Lawrence v. Barker, had summoned him, it was held, that his
5 Wend. 301, 305 ; Meagoe v. Simmons, 3 answer was not conclusive, and that testi-
C. & P. 75 ; Crowley v. Page, 7 C. & P. mony was admissible to contradict him, as
789; Commonwealth v. Buzzell, 16 Pick, it materially affected his credibility. Mor-
CHAP. III.J
JEXAMINATION OP WITNESSES.
497
witness, whether he has not on some former occasion given a dif-
ferent account of the matter of fact, to which he has already testi-
fied, in order to lay a foundation for impeaching his testimony by
contradicting him. The inquiry, however, in such cases, must
be confined to matters of fact only ; mere opinions which the wit-
ness may have formerly expressed being inadmissible, unless the
case is such as to render evidence of opinions admissible and
material.^ Thus, if the witness should give, in evidence in chief,
his opinion of the identity of a person, or of his handwriting, or
of his sanity, or the like, he may be asked whether he has not
formerly expressed a different opinion upon the same subject ; but
if he has simply testified to a fact, his previous opinion of the
merits of the case is inadmissible. Therefore, in an action upon
a marine policy, where the broker, who effected the policy for the
plaintiff, being called as a witness for the defendant, testified that
he omitted to disclose a certain fact, now contended to be material
gan ». Frees, s. c. N. York, 1 Am. Law
Reg. 92. Where a witness, called by the
plaintiff to prove the handwriting in issue,
swore it was not that of the defendant, and
another paper, not evidence in the cause,
being shown to him by the plaintiff, he
Bwore that this also was not tlie defend-
ant's, the latter answer was conclusive
against the plaintiff. Hughs v. Rogers, 8
M. & W. 123. See also Griffiths v. Ivery,
11 Ad. & El. 322 ; Philad. & Trenton Rail-
road Co. V. Stimpson, 14 Peters, 461 ;
Harris v. Wilson, 7 Wend. 57 ; Tennant v.
Hamilton, 7 Clark & Ein. 122 ; The State
V. Patterson, 2 Iredell, R. 846. [The rule
which excludes all evidence tending to
contradict the statements of a witness as
to collateral matters does not apply to any
facts immediately and properly connected
with the main subject of inquiry. Every
thing which goes to affect the credit of a
witness, as to the particular fects to which
he is called to testify, is material and ad-
missible. Thus, where testimony to a
iact is founded mainly upon a written
memorandum which the witness testifies
was made by himself at the time, and
which was produced by him at a former
trial, and since has been lost, the other
party may show, for the purpose of dis-
crediting the witness, that the memoran-
dum then produced was not in his hand-
writing. Commonwealth v. Hunt, 4 Gray,
421. In Harrington v. Lincoln, 2 Gray,
133, a witness on cross-examination by the
plaintiff answered in the negative the fol-
lowing question : " Did you not say to W.
(another witness), after he had left the
stand, that if you had been on the stand in
his place, when cross-examined by the de-
fendant's counsel, you would have said
something, even if it had been untrue f "
and it was held, that the plaintiff could
not be allowed to contradict this answer
by other evidence, because it was collat-
eral, and did not tend to show any par-
tiality or bias on the part of the witness in
favor of the defendant, or any attempt to
influence or Induce W. to give false tes-
timony favorable to the defendant ; had it
been of that character, it would have been
competent to put in the contradictory evi-
dence. See also Commonwealth v. God-
dard, 2 Allen, 148.]
1 Elton V. Larkins, 5 C. & P. 385;
Daniels v. Conrad, 4 Leigh's R. 401, 405.
But a witness cannot be cross-examined
as to what he has sworn in an affidavit,
unless the affidavit is produced. Sainthill
V. Bound, 4 Esp. 74; Rex v. Edwards, 8
C. & P. 26; Regina v. Taylor, Id. 726.
If the witness does not recollect saying
that which is imputed to him, evidence
may be given that he did say it, provided
it is relevant to the matter m issue. Crow-
ley V. Page, 7 C. & P. 789. [Nute v. Nute,
41 N. H. 60. Nor is it competent to show
that the witness has given an opinion out
of court relative to the subject-matter of
the suit, inconsistent with the conclusion
which the facts he testifies to at the ti'ial
will warrant. The statement must not
only relate to the issue, but be a matter of
fact, and not merely a former opinion.
Holmes v. Anderson, 18 Barb. 420.]
42»
498 LAW OF EVIDENCE. [PART III.
to the risk, and being cross-examined whether he had not expressed
his opinion that the underwriter liad not a leg to stand upon in
the defence, he denied that he had said so ; this was deemed
conclusive, and evidence to contradict him in this particular was
rejected.^
§ 450. So, also, it has been held not irrelevant to the guilt oi
innocence of one charged with a crime, to inquire of the witness
for the prosecution, in cross-examination, whether he has not
expressed feelings of hostility towards the prisoner.^ The like
inquiry may be made in a civil action ; and if the witness denies
the fact, he may be contradicted by other witnesses.^ So, also,
in assumpsit upon a promissory note, the execution of which wds
disputed, it was held material to the issue, to inquire of the sub-
scribing witness, she being a servant of the plaintiff, whether she
was not his kept mistress.*
§ 451. In regard to the privilege of witnesses, in not being com
pellable to answer, the cases are distinguishable into several classes.
(1.) Where it reasonably appears that the answer will have a
tendency to expose the witness to a penal liability, or to any kind
of punishment, or to a criminal charge. Here the authorities are
exceedingly clear that the witness is not bound to answer .'^ And
he may claim the protection at any stage of the inquiry, whether
he has already answered the question in part, or not at all.^ If
the fact to which he is interrogated forms but one link in the
chain of testimony, which is to convict him, he is protected. And
whether it may tend to criminate or expose tlie witness is a point
upon which the court are bound to instruct him ; ^ and which the
1 Elton V. Larkins, 5 C. & P. 385. pelled to answer, what he says will be re
2 Eex V. Yewin, cited 2 Campb. 638. garded as obtained by compulsion, and
' Atwood V. Welton, 7 Conn. 66 ; [Mar- cannot be given in evidence against him.
tin V. Parnham, 5 Foster, 195; Drew v. Regina v. Garbett, 1 Denis. C. C. 236; 2
Wood, 6 lb. 363 ; Cooley v. Norton, 4 Car. & K. 474. And see supra, § 193 ; 7
Gush. 93 ; Long v. Lamkin, 9 lb. 361 ; Law Rev. 19-30.
Newton v. Harris, 2 Selden, 345 ; Com- « Regina v. Garbett, 1 Denis. C. C. 236 ;
monwealth v. Byron, 14 Gray, 31.] 2 Car. & K. 474; ex parte Cossens, ISuck,
4 Thomas u. David, 6 C. & P. 350, per Bankr. Cas. 531, 545. [If a witness dis-
Coleridge, J. closes part of a transaction in which he
5 Southard v. Rexford, 6 Cowen, 254; was criminally concerned, witliout claim-
1 Burr's Trial, 245 ; E. India Co. v. Camp- ing his privilege, he must then proceed to
bell, 1 Ves. 227 ; Paxton v. Douglass, 19 state, the whole, if what he has disclosed
Ves. 225 ; Gates v. Hardacre, 3 Taunt, is clearly a part of the transaction ; other-
424; MacBride V. MacBride, 4.Esp. 248; wise not. Coburn v. Odell, 10 I^oster,
Eex V. Lewis, Id. 225 ; Rex v. Slaney, 5 540 ; Norfolk v. Gaylord, 28 Conn. 309.1
G.&P.213;Rexi).Pegler, 5 C. &P. 621; ' Close v. Olney, 1 Deuio, R. 819.
Dodd V. Norris, 3 Campb. 519 ; Malony v. [See Commonwealth v. Shaw, 4 Cush.
Bartly, Id. 210. If he is wrongfully com- 694.]
CHAP. III.]
EXAMINATION OF WITNESSES.
499
court will determine, under all the circumstances of the case ; ^
but without requiring the witness fully to explain how he might
be criminated by the answer, which the truth would oblige him to
give. For if he were obliged to show how the effect would be
produced, the protection which this rule of law is designed to
afford him would at once be annihilated.^ But the court will not
' This point, however, is not uniTer-
eally agreed. In Fisher v. Ronalds, 17
Jur. 393, Jervis, C. J., and Maule, J.j
were of opinion that it was for the witness
to say, on his oath, whether he believed
that the question tended to criminate him ;
and if he did, that his answer was conclu-
sive. Williams, J., thought the point not.
necessary then to be decided, [s. c. 16
Eng. Law & Eq. 417, and note. See also
'Osborne v. London Dock Co. 29 lb. 389 ;
Jauvrin v. Scammon, 9 Foster, 280.]
[* Fernandez, ex parte, 10 C. B. N. s. 3.]
2 The People v. Mather, 4 Wend. 229 ;
1 Burr's Trial, 245 ; Southard v. Rexford,
6 Cowen, 254, 255 ; Bellinger, in error, v.
The -People, 8 Wend. 595. In the &st of
these cases, this doctrine was stated by
the learned judge, in the following terms :
" The principal reliance of the defendant,
to sustain the determination of the judge,
is placed, I presume, on the rule of law,
that protects a witness in refusing to an-
swer a question which will have a tenden-
cy to accuse him of a crime or misde-
meanor. Where the disclosures he may
make can be used against him to procure
his conviction for a criminal offence, or to
charge him with penalties and forfeitures,
he may stop in answering, before he ar-
rives at the question, the answer to whicli
may show directly his moral turpitude.
The witness, who knows what the court
does not know, and what he cannot com-
municate without being a self-accuser, is
to judge of the effect-of his answer, and if
it proves a link in the chain of testimony,
which is sufficient to convict him, when
the others are made known, of a crime,
he is protected by law from answering the
question. If there be a series of ques-
tions, the answer to all of which would
establish his criminality, the party cannot
I lick out a particular one and say, if that
be put, the answer will not criminate him.
'If it is one step having a tendency to
criminate him, he is not compelled to an-
swer.' (16 Ves. 242.) The same privi-
lege that is allowed to a, witness is the
right of a defendant in a court of equity,
when called on to answer. In Parkhurst
V. Lowten, 2 Swanst. 215, the chancellor
held, that the defendant ' was not only not
bound to answer the question, the answer
to which would criminate him directly,
but not any which, however remotely con-
nected with the fact, would have a tend-
ency to prove him guilty of simony.'
The language of Chief Justice Marshall,
on Burr's trial, is equally explicit on this
point. ' Many links,' he says, ' frequently
compose that chain of testimony, which is
necessary to convict an individual of a
crime. It appears to the court to be the
true sense of the rule, that no witness is
compellable to furnish any one of them
against himself. It is certainly not only a •
possible but a probable case, that a wi1>
ness, by disclosing a single fact, may com
plete the testimony against liimself, and,
to every effectual purpose, accuse himself
entirely as he would by stating every cir-
cumstance, which would be required for
his conviction. That fact of itself would
be unavailing, but all other facts without
it would be insuflBcient. While that re-
mains concealed in his own bosom, he is
safe, but draw it from thence, and he is
exposed to a prosecution. The rule which
declares that no man is compellable to ac-
cuse himself would most obviously be
infringed, by compelling a witness to dis-
close a fact of this description.' { 1 Burr's
Trial, 244.) My conclusion is, that where
a witness claims to be excused from an-
swering a question, because the answer
may disgrace him, or render him infa-
mous, the court must see that the answer
may, without the intervention of other
facts, fix on him moral turpitude. Where
he claims to be excused from answering,
because his answer will have a tendency
to implicate him in a crime or misde-
meanor, or will expose him to a penalty
of forfeiture, then the court are to deter-
mine, whether the answer he may give to
the question can criminate him, directly
or indirectly, by furnishing direct evidence
of his guilt, or by establishing one of many
facts, which together may constitute a
chain of testimony sufficient to warrant
his conviction, but which one fact of itself
could not produce such result ; and if they
think the answer may in any way crimi-
nate him, they must allow his privilege,
without exacting from him to explain how
he would be criminated by the answer,
which the truth may obh'ge him to give.
500
LAW OP EVIDENCE.
[part ra.
prevent tlie witness from answering it, if he chooses ; they will
only advertise him of his right to decline it.^ This rule is also
administered in chancery, where a defejidant will not be compelled
to discover that which, if answered, would tend to subject him to
a penalty or punishment, or which might lead to a criminal accu-
sation, or to ecclesiastical censures.^ But in all cases where the
witness, after being advertised of his privilege, chooses to answer,
he is bound to answer every thing relative to the transaction.^
But the privilege is his own, and not that of the party ; counsel,
therefore, will not be allovred to make the objection.* If the
ce of the truth of the fact
ance.^ And no answer
after he has claimed
evidence against him.®
t be exposed, is barred by
rud the witness is bound to
witness declines answering,
is permitted to be drawn from
forced from him by
protection, can be afi
If the prosecution, to
lapse of time, the prr
answer.''
[ * § 451a. It seems tha^ M some of the states, where the party
gives testimony to part of a transaction without claiming his
privilege of not testifying to what may criminate him, he may be
compelled to state the whole ; ^ and to submit to a full cross-
examination, notwithstanding his answers tend to criminate or dis-
grace him.^ But, in general, a witness who proceeds inadvertently,
and without expecting to be asked to give testimony upon points
affecting his character or subjecting him to prosecution for crime,
If the witness was obliged to sliow how
the effect is produced, the protection would
at once be annihilated. The means which
he would be in that case compelled to use
to obtain protection would involye the
surrender of the very object, for the se-
curity of which the protection was sought."
See 4 Wend. 262, 253, 254. See also Short
0. Mercier, 15 Jur. 93 ; 1 Eng. Law & Eq.
Rep. 208, where the same point is dis-
cusssd
1 4 Wend. 252, 253, 254.
a Story's Eg. PI. §§ 524, 576, 577, 592-
598 ; Mclntyre v. Mancius, 16 Johns. 592 ;
Wigram on Discovery, pp. 61, 150,' 155
(1st Am. edit.) ; Id. §§ 180-133, 271 (2d
Lond. edit.) ; Mitford's Eq. PI. 157-163.
8 Dixon V. Vale, 1 C. & P. 278; The
State V. K , 4 N. Hamp. 562 ; East v.
Chapman, 1 M. & MaUt. 46 ; 2 C. & P. 570,
B. c; Low V. MitcheU, 6 Shepl. 272; [Fos-
ter V. Pierce, 11 Cush. 437, 439.1
* Thomas v. Newton, 1 M. & Malk. 48,
note; Rex v. Adey, 1 M. & Rob. 94;
[Commonwealth v. Shaw, 4 Cush. 594.]
^ Rose V. Blakemore, Ry. & M. 383;
iPhealing v. Kenderdine, 20 Penn. St.
I. 354 ; Came v. Litchfield, 2 Mich. 340.
See Boyle v. Wiseman, 29 Eng. Law &
Eq. 473, where the witness who claimed
the priTilege was one of the parties to the
suit.]
« Reg. V. Garbett, 2 C. & K. 474. In
Connecticut, by Rev. Stat. 1849, tit. 6, §
161, it is enacted, that evidence given by a
witness in a criminal case, shall not "'be
at any time construed to his prejudice."
Such, in substance, is also the law of Vir-
ginia. See Tate's Dig. p. 340 ; Virg. Code
of 1849, ch. 199, § 22.
' Roberts v. Allatt, 1 M. & Malk. 192;
The People v. Mather, 4 Wend. 229, 252-
255.
8 [ * Coburn v. OdeU, 10 Foster, 540.
3 Norfolk V. Gaylord, 28 Conn. 809.]
CHAP. III.] EXAMINATION OP WITNESSES. 601
will be accorded his privilege, when claimed, although the result
should be to strike his testimony from the case after it had been
partly taken down.^ The witness must himself judge, in the
first instance, whether the answers sought will tend to prove him
guilty of a crime. Unless he is able to testify that he believes they
will, he is not entitled to claim the privilege. If he informs the
court, upon oath, that he cannot testify, without criminating him-
self, the court cannot compel him to testify, unless fully satisfied
such is not the fact, i.e., that the witness is either mistaken, or
acts in bad faith ; in either of which cases they should compel
him to testify.^ But where the reason for not giving testimony
assigned by the witness is evidently insufficient, the court should
compel him to testify .^ It is not important that the witness is
really innocent, if his answers will place him in a position where
he could not exculpate himself from legal presumptions, although
contrary to the fact.* But if, for any cause, the testimony cannot
be used against the witness, he is not privileged;^ nor can he
claim exemption from testifying merely because his testimony will
give a clue to evidence against him. Nor vnll the fact that the
direct examination will not tend to criminate the witness be suffi-
cient, if proper questions on cross-examination will.®]
§ 452. (2.) Where the witness, by answering, may subject liim-
telf to a civil action or pecuniary loss, or charge himself with a debt.
This question was very much discussed in England, in Lord Mel-
ville's case; and, being finally put to the judges by the House
of Lords, eight judges and the chancellor were of opinion that
a witness, in such case, was bound to answer, and four thought
that he was not. To remove the doubts which were thrown over
the question by such a diversity of opinion among eminent judges,
a statute was passed,' declaring the law to be, that a witness
could not legally refuse to answer a question relevant to the
matter in issue, merely on the ground that the answer may estab-
lish, or tend to establish, that he owes a debt, or is otlierwise
subject to a civil suit; provided the answer has no tendency to
accuse himself, or to expose him to any kind of penalty or for-
1 I * Dixon V. Vale, 1 C. & P. 278, by » The People v. KeUy, 24N.Y. Ct. App.
Best, C. J. 74.
2 Chamberlain v. Willson, 12 Vt. E. « prfntz v. Cheeney, 11 Iowa, 469.]
491. ' 46 Geo. III. c. 37 ; 2 Phil. Eyid. 420 ;
8 Mexico & S. A. Co. in re ; Ashton's 1 Stark. Evid. 165. It is so settled by
case, 4 DeG. & J. 320 ; s. c. 27 Beav. 474. statute in New York. 2 Rev. Stat. 405;
* Adams v. L'oyd, 4 Jur. n. s. 590. § 71.
502
LAW OF EVIDENCE.
[part m.
feiture. In the United States, this act is generally considered as
declaratory of the true doctrine of the common law ; and, accord-
ingly, by the current of authorities, the witness is held bound to
answer.^ But neither is the statute, nor the rule of the common
law, considered as compelling a person interested in the cause as
party, though not named on the record, to testify as a witness
in the cause, much less to disclose any thing against his own
interest.^
§ 453. (3.) Where the answer will subject the witness to a
forfeiture of Ms estate. In this case, as well as in the case of an
exposure to a criminal prosecution or penalty, it is well settled
that a witness is not bound to answer.^ And this is an established
rule in equity, as well as at law.*
§ 454. (4.) Where the answer, though it will not expose the
witness to any criminal prosecution or penalty, or to any forfeiture
of estate, yet has a direct tendency to degrade his character. On
this point there has been a great diversity of opinion, and the law
still remains not perfectly settled by authorities.^ But the conflict
1 Bull V. Loreland, 10 Pick. 9; Baird
V. Cochran, 4 S. & E. 397 ; Nass u. Van
Swearingen, 7 S. & B. 192; Taney v.
Kemp, 4 H. & J. 348 ; Naylor v. Semmes,
4 G. & J. 273 ; City Bank v. Bateman, 7
H. & J. 104 ; Stoddart v. Manning, 2 H. &
G. 147 ; Copp V. Upham, 3 N. Hamp. 159 ;
Cox V. Hill, 3 Ohio E. 411, 424 ; Planters'
Bank v. George, 6 Martin, 679, h. s. ;
Jones V. Lanier, 2 Dev. Law Eep. 480;
Conover v. Bell, 6 Monroe, 157 ; Gorham
V. Carroll, 3 Littel, 221 ; Zollicoflfer v. Tur-
ney, 6 Yerger, 297; Ward v. Sharp, 15
Verm.' 115. The contrary seems to have
been held in Connecticut. Benjamin v.
Hathaway, 3 Conn. 528, 532. [An action
will not he against a witness, who, in the
due course of judicial proceeding, has ut-
tered false and defamatory statements
concerning the plaintiff, even though he
did so maliciously and without reasonable
and probable cause, and the plaintiff suf-
fered .laniA^es in consequence. Reris v.
Smith. 36 Eng. Law & Eq. 268, 272, 273.]
2 Kcx V. Wobum, 10 East, 395 ; Mau-
ran v. Lan»b, 7 Cowen, 174; Appleton v.
Boyd, 7 Mass. 131 ; Eenn v. Granger, 3
Campb. 177; The People v. Irving, 1
Wend. 20; White v. Everest, 1 Verm.
181.
3 6 Cobbett's P. D. 167 ; 1 Hall's Law
J. 223 ; 2 I'liil. Evid. 420.
* Mitford's Eq. PI. 157, 161 ; Story's
Eq. PI. §§ 607, 846.
5 The arguments on the respective
sides of this question are thus summed up
by Mr. Phillips : " The advocates for a
compulsory power in cross-examination
maintain, that, as parties are frequently
surprised by the appearance of a witness
unknown to them, or, if known, entirely
unexpected, without such power they
would have no adequate means of ascer-
taining wliat credit is due to his testi-
mony ; that, on the cross-examination of
spies, informers, and accomplices, this
power is more particularly necessary ; and
that, if a witness may not be questioned
as to his character at the moment of trial,
the property and even the life of a party
must often be endangered. Those on the
other side, who maintain that a witness is
not compellable to answer such questions,
argue to the following effect. 'They say,
the obhgation to give evidence arises from
the oath, which every witness takes ; that
by this oath he binds himself only to
speak touching the matters in issue ; and
that such particular facts as these, wliethet
the witness has been in jail for felony, or
suffered some infamous punishment, or
the like, cannot form any part of the issue,
as appears evident from this consideration,
that the party against whom the witness
is called would not be allowed to prove
such particular facts by other witnesses.
They argue, further, that it would be an
extreme grievance to a witaess, to be com
CHAP. III.] EXAMINATION OP WITNESSES. 503
of opinions may be somewhat reconciled by a distinction, which
has been very properly taken between cases, where the testimony
is relevant and material to the issue, and cases where the question
is not strictly relevant, but is collateral, and is asked only under
the latitude allowed in a cross-exarnination. In the former case,
there seems great absurdity in excluding the testimony of a wit-
ness, merely because it will tend to degrade himself, when others
have a direct interest in that testimony, and it is essential to the
establishment of their rights of property, of liberty, or even of
life ; or to the course of public justice. Upon such a rule, one
who had been convicted and punished for an offence, when called
as a witness against an accomplice, would be excused from testi-
fying to any of the transactions, in which he had participated with
the accused, and thus the guilty might escape. And, accordingly,
the better opinion seems to be, that where the transaction, to
which the witness is interrogated, forms any part of the issue
to be tried, the witness will be obliged to give evidence, however
strongly it may reflect on his character.^
§ 455. But where the question is not material to the issue, but
is collateral and irrelevant, being asked under the license allowed
in cross-examination, it stands on another ground. In general,
as we have already seen, the rule is, that upon cross-examination
to try the credit of a witness, only general questions can be put ;
and he cannot be asked as to any collateral and independent fact,
merely with a view to contradict him afterwards by calling another
witness. The danger of such a practice, it is said, is obvious ;
besides the inconvenience of trying as many collateral issues as
one of the parties might choose to introduce, and which the other
pelled to disclose past transactions of his pliees stand in a peculiar situation, being
life, which m!iy have been since forgotten, admitted to give evidence only under the
and to expose his character afresh to evil implied condition of making a full and
report, when, perhaps, by his subsequent true confession of the whole truth ; but
conduct, he may have recovered the good even accomplices are not to be questioned,
opinion of the world ; that, if a witness is in their cross-examination, as to other
privileged from answering a question, offences, in which they have not been
though relevant to the matters in issue, concerned with the prisoner; that, with
because it may tend to subject him to a respect to other witnesses, tlie'best course
forfeiture of property, with much more to be adopted, both in point of convenience'
reason ought he to be excused &om an- and justice, is to allow the question to be
swering an irrelevant question, to the dis- asked, at the same time allowing the wit-
paragement and forfeiture of his character ; ness to shelter himself under his privilege
that, in the case of accomplices, in which of refusing to answer." Phil. & Am. on
this compulsory power of cross-examina- Evid. pp. 917, 918 ; 2 Phil. Evid. 422.
tion is thought to be more particularly i 2 Phil. Evid. 421 ; The People v.
necessary, the power may be properly con- Mather, 4 Wend. 250-254, per Marcy, J. :
ceded to a certain extent, because accom- Peake's Evid. (by Norris) p. 92; Cundeli
504 LAW OP EVIDENCE. [PABT IH.
could not be prepared to meet.^ Whenever, therefore, the ques-
tion put to the witness is plainly of this character, it is easy to
perceive that it falls under this rule, and should be excluded.
But the difficulty lies in determining, with precision, the mate-
riality and relevancy of the question, when it goes to the character
of the witness. There is certainly great force in the argument,
that where a man's liberty, or his life, depends upon the testimony
of another, it is of infinite importance, that those who are to decide
upon that testimony should know, to the greatest extent, how far
the witness is to be trusted. They cannot look into his breast,
to see what passes there ; but must form their opinion on the
collateral indications of his good faith and sincerity. Wliatever,
therefore, may materially assist them in this inquiry, is most
essential to the investigation of truth ; and it cannot but be mate-
rial for the jury to understand the character of the witness, whom
they are called upon to believe ; and to know whether, although
he has not been convicted of any crime, he has not in some meas-
ure rendered himself less credible by his disgraceful conduct.^
The weight of this argument seems to have been felt by the judge
in several cases in which questions, tending to disgrace the wit-
ness, have been permitted in cross-examination.
§ 456. It is, however, generally conceded, that where the an-
swer, which the witness may give, will Tiot directly and certainly
show Ms irtfamy, but will only tend to disgrace him, he may be
compelled to answer. Such is the rule in equity, as held by Lord
Bldon;3 and its principle applies with equal force at common
law ; and, accordingly, it has been recognized in the common-law
courts.* In questions involving a criminal offence, the rule, as
we have seen,^ is different ; the witness being permitted to judge
for the most part for himself, and to refuse to answer, wherever
it would tend to subject him to a criminal punishment or forfeiture.
But here the court must see for itself, that the answer will directly
V. Pratt, 1 M. & Malk. 108 ; Swiff s Evid. might be finally put at rest. See also
80. So in Scotland. Alison's Practice, Lohman v. The People, 1 Comst 379
p. 528. 2 1 Stark. Evid. 170.
1 Spencely v. De Willott, 7 East, 108, » Parkhurst v. Lowten, 1 Meriv. 400:
110. M. EUenborough ■ remarked, that 2 Swanst. 194, 216, s. c. ; Poss w. Haynes
he had ruled this point again and again at 1 Redingt. 81. And see Story Eq. Pi!
tlie sittings, until he was quite tired of §§ 585, 596. '
the agitation of the question, and there- ^ The People v. Mather, 4 Wend. 232
fore he wished that a bill of exceptions 252, 254 ; The State v. Patterson, 2 W
should be tendered by any party dissatis- dell, R. 346.
fied with his judgment, that the question ^ Supra, § 451.
CHAP, m.] EXAMINATION OP WITNESSES. 505
show his infamy, before it will excuse him from testifying to the
fact.^ Nor does there seem to be any good reason why a witness
should be privileged from answering a question touching his
present situation, employment, and associates, if they are of his
own choice ; as, for example, in what house or family he resides,
what is his ordinary occupation, and whether he is intimately
acquainted and conversant with certain persons, and the like ;
for, however these may disgrace him, his position is one of his
own selection.^
[* § 456a. There is no doubt that the latitude which the law
allows for cross-examination is very liable to abuse. There is
probably no other mode in which more time is needlessly consumed
in court, or by which more unbecoming scenes are liable to be pro-
duced there. It is a matter resting solely in the discretion of the
judge, and where he would naturally desire to err, if at all, by too
great indulgence. A mere impertinent inquiry, calculated and
intended to test the witness's power of self-control, and, if possible,
to throw him off his guard, should never be resorted to or allowed,
unless there has been something very marked in the conduct of the
witness to justify it. The witness should be told that he is not
obliged to submit to insult, or to answer inquiries merely imperti-
nent. Such questions generally defeat their own purpose, if that
is eliciting as favorable a statement of the facts as possible toward
the party. The surest course to secure that, even from unwilling
and unfair witnesses, is to treat them with kindness and courtesy.
It is a great mistake, which some of the profession unfortunately
sometimes fall into, that putting impertinent and impudent ques-
tions, upon cross-examination, tends either to the exaltation of
their own credit, or can possibly subserve the interests of their
clients. There can be nothing, as a general rule, more damaging
to both.3]
§ 457. But, on the other hand, where the question involves the
fact of a previous conviction, it ought not to be asked ; because
there is higher and better evidence which ought to be offered. If
the inquiry is confined, in terms, to the fact of his having been
' Macbride v. Macbride, 4 Esp. 242, per ting expressly, that he did this only on the
Ld. Alvanley ; The People v. Mather, 4 ground, that the answer would expose her
Wend. 254, per Marcy, J. to punishment. Cundell v. Pratt, 1 M. &
" Thus, when a witness was asked, Malk. 108.
whether she was not cohabiting with a 3 [ * Commonwealth v. Sacket, 22 Pick.
particular individual, in a state of incest, 894 ; Same v. Shaw, 4 Cush. 59S ; Smith
Best, C. J., proliibited the question; sta- v. Cutter, 1 Gray, 108.1
voi,. J. 43
606 LAW OP EVIDENCE. [PART III.
subjected to an ignominious punishment, or to imprisonment alone,
it is made, not for the purpose of showing that he was an innocent
sufferer, but that he was guilty ; and the only competent proof of
this guilt is the record of his conviction. Proof of the same
nature, namely, documentary evidence, may also be had of the
cause of his commitment to prison, whether in execution of a
sentence, or on a preliminary charge.^
§ 458. There is another class of questions, which do not seem
to come within the reasons already stated in favor of permitting
this extent of cross-examination ; namely, questions, the answers
to which, though they may disgrace the witness in other respects,
yet will not affect the credit due to his testimony. For it is to be
remembered, that the object of indulging parties in this latitude
of inquiry is, that the jury may understand the character of- the
witness, whom they are asked to believe, in order that his evidence
may not pass for more than it is worth. Inquiries, therefore,
having no tendency to this end, are clearly impertinent. Such are
the questions frequently attempted to be put to the principal female
witness, in trials for .seduction per quod servitium amisit, and on
indictments for rape, &c., whether she had not previously been
criminal with other men, or with some particular person, which are
generally suppressed.^ So, on an indictment of a female prisoner,
1 The People v. Herrick, 13 Johns. 84, a further reason for not interrogating a
per Spencer, J. ; Clement v. Brooks, 13 witness respecting his conviction and pun-
N. Hamp. E. 92. In Eex v. Lewis, 4 ishment for a crime, that he may not
Esp. 225, the prosecutor, who was a com- understand the legal character of the
mon informer, was asked whether he had crime for which he was punished, and so
not been in the house of correction in may admit himself guilty of an offence
Sussex; but Lord EUenborough inter- which he never committed. In Rex v.
posed, and suppressed the question ; part- Edwards, 4 T. R. 440, the question was
ly on the old rule of rejecting all ques- not asked of a witness, but of one who
tions, the object of which was to degrade offered himself as bail for another, in-
the witness; but chieflyj because of the dieted of grand larceny. [*The party
injury to the administration of justice, if who calls the witness has the right to in-
persons, who came to do their duty to sist, that if the adversary would impeach
the public, might be subjected to im- his character by proving him guilty of an
proper investigation. Inquiiies of this infamous crime, he shall do it by proof of
nature have often been refused on the old the record of such conviction. Newcomb
ground alone. As in The State v. Bailey, v. Griswold, 24 N.Y. App. 298.]
Pennington's R. 304 {2d edit.) ; Millman v. 2 Do.dd v.- Norris, 3 Campb. 519 ; Rex
Tucker, 2 Peake's Cas. 222; Stout v. v. Hodgdon, Russ. & Ry. 211; Vaughn
Russell, 2 Yeates, 834. A witness is also v. Perrine, Penningt. R. 534. But where
privileged &om answering respecting the the prosecution is under a bastardy act,
commission of an offence, though he the issue being upon the paternity of the
has received a pardon ; " for," said North, child, this inquiry to its mother, if re-
C. J., " if he hath his pardon, it doth take stricted to the proper time, is material,
away as well all calumny, as liableness to and she will be held to answer. Swift's
punishment, and sets him right against all Evid. p. 81. See also Macbride v. Mac-
objection." Rex V. Reading, 7 Howell's bride, 4 Esp. 242 ; Bate v. Hill, 1 C. & P.
St. Tr. 296. It may also be observed, as 100. In Kex v. Teal et al. 11 East, 307
CHAP. III.] EXAMINATION OP WITNESSES. 507
for stealing from the person, in a house, the prosecutor cannot be
asked, whether at that house any thing improper passed between
him and the prisoner.^
§ 459. But where the question does not fall within either of the
classes mentioned in tlie three preceding sections, and goes clearly
to the credit of the witness for veracity, it is not easy to perceiye
why he should be privileged from answering, notwithstanding it
may disgrace him. The examination being governed and kept
within bounds by the discretion of the judge, all inquiries into
transactions of a remote date will of course be suppressed; for
the interests of justice do not require that the errors of any man's
life, long since repented of and forgiven by the community, should
be recalled to remembrance, and their memory be perpetuated in
judicial documents, at the pleasure of any future litigant. The
state has a deep interest in the inducements to reformation, held
out by the protecting veil, which is thus cast over the past oflFences
of the penitent. But where the inquiry relates to transactions
comparatively recent, bearing directly upon the present character
and moral principles of the witness, and therefore essential to the
due estimation of his testimony by the jury, learned judges have
of late been disposed to allow it.^ Thus it has been; held, that a
witness called by one party may be asked in cross-examination,
whether he had not attempted to dissuade a witness for the other
party from attending the trial.'^ So where one was indicted for
larceny, and the principal witness for the prosecution was his
servant boy, the learned judge allowed the prisoner's counsel to
ask the boy, whether he not been charged with robbing his master,
and whether he had not afterwards said he would be revenged of
him, and would soon fix him in jail.* Similar inquiries have been
permitted iu other cases. ^ The great question, however, whether
Sll, which was an indictment for conspir- mean, that in modern times, the courts
ing falsely to charge one with being the have permitted questions to show, from
father of a bastard child, similar inquiries transactions not in issue, that the witness
were permitted to be made ■of the mother, is of impeached character, and therefore
who was one of the conspirators, b"ut was not so credible." Parlihurst u. Lowten,
admitted a witness for the prosecution. 2 Swanst. 216.
[People V. Blakeley, 4 Parker, C. K. 176.] ^ Harris v. Tippett, 2 Campb. 637.
See post, vol. 2, § 577. * Rex v. Tewin, cited 2 Campb. 638.
1 Rex V. Pitcher, 1 C. & P. 85. ^ n^-^ „. Watson, 2 Stark. R. 116, 149 ;
2 This relaxation of the old rule was Rex v. Teal et al, 11 East, 311 ; Cundell
recognized, some years ago, by Lord v. Pratt, 1 M. & Malk. 108 ; Rex v. Bar-
Eldon. " It used to be said," he observed, nard, 1 C. & P. 85, note (a) ; Rex v. GU-
"that a witness could not be called on to roy, lb. ; Prost v. HoUoway, cited in 2
discredit himself; but there seems to be Phil. Evid. 425.
eometliing like a departure from that; I
508 LAW OP EVIDENCE. [PAET IH,
a witness may not be bound in some cases to answer an interrogar
tory to his own moral degradation, where, thougli it is collateral to
the -main issue, it is relevant to his character for veracity, has not
yet been brought into direct and solemn judgment, and must
therefore be regarded as an open question, notwithstanding the
practice of eminent judges at nisi prius, in favor of the inquiry,
under the limitations we have above stated.^
§ 460. Though there may he cases, in which a witness is not
bound to answer a question which goes directly to disgrace him,
yet the question may be asked, wherever the answer, if the witness
should waive his privilege, would be received as evidence.^ It has
been said, that if the witness declines to answer, his refusal may
well be urged against his credit with the jury.^ But in several
cases this inference has been repudiated by the court ; for it is the
duty of the court, as well as the objects of the rule, to protect the
witness from disgrace, even in the opinion of the jury and other
persons present ; and there would be an end of this protection, it
a demurrer to the question were to be taken as an admission of the
fact inquired into.* [* It is probably safe to say, that counsel
cannot in any case insist upon asking a question which the witness
is not obliged to answer ; nor can any just inference be made
against a witness on account of his silence, where he is under no
obligation to speak.j
§ 461. After a witness has been examined in chief, his credit
may be impeached in various modes, besides that of exhibiting the
improbabilities of a story by a cross-examination. (1.) By dis-
proving the facts stated by him, by the testimony of other wit-
nesses. (2.) By general evidence affecting his credit for veracity.
But in impeaching the credit of a witness, the examination must be
confined to his general reputation, and not be permitted as to
1 See 1 Stark. Evid. 167-172 ; 2 Phil, the answer cannot be contradicted. In
Evld. 423-428; Peake's Evid. by Norris, such cases, the prudent practitioner will
pp. 202-204. In Respublica v. Gibbs, 3 seldom put a question, unless it be one
Yeates, 429, where the old rule of exclud- which, if answered either w:iy, will bene-
ing the inquiry was discussed on general fit his client. Such was the question
grounds, and approved, the Inquiry was put by the prisoner's counsel, in Eox v.
clearly inadmissible on another account. Pitcher, sup -a, § 458. See 1 C. & P. 85,
as the answer would go to a forfeiture of note (a).
the witness's right of suffrage and of citi- * 1 Stark. Evid. 172; Rose v. Blake-
zenship. more, Ry. & M. 382, per Brougham, arg.
2 2 Phil. Evid. 423-428 ; 1 Stark. * Rose v. Blakemore, Ry. & M. 882,
Evid. 172 ; Southard v. Rexford, 6 Cowen, per Abbott, Ld. Ch. J. ; Rex v. Watson,
254. But it should be remembered, that 2 Stark. R. 258, per Holroyd, J. ; Lloyd
if the question is collateral to the issue, v. Passingham, 16 Ves. 64 ; supra, § 451.
CHAP, m.]
EXAMINATION OP WITNESSES.
509
particular facts ; for every man is supposed to be capable of sup-
porting the one, but it is not likely that he should be prepared to
ansver the other, mthout notice ; and unless his general charac-
ter and behavior be in issue, he has no notice.^ This point has
been much discussed, but may now be considered at rest.^ The
regular mode of examining into the general reputation is to inquire
of the witness whether he knows the* general reputation of the
person in question among his neighbors ; and what that reputation
is.^ In the English courts the course is further to inquire whether,
from such knowledge, the witness would believe that person, upon
his oath.* In the American courts the same course has been pur-
sued ; ^ but its propriety has of late been questioned, and perhaps
the weight of authority is now against permitting the witness to
testify as to his own opinion.^ In answer to such evidence, the
1 Bull. N. P. 296, 297. The mischief
of raising collateral issues is also ad-
verted to as one of the reasons of this
rule. " Look ye," said Holt, Ld. C. J.,
"you may bring witnesses to give an
account of the general tenor of the wit-
ness's conversation ; but you do not think,
sure, that we will try, at this time,
wliether he be guilty of robbery." Rex
V. Rookwood, 4 St. Tr. 681 ; 13 Howell's
St. Tr. 211, s. o. ; 1 Stark. Evid. 182. It
Is competent, however, for the party
against whom a witness has been called,
to show that he has been bribed to give
his evidence. Attor.-Gen. v. Hitchcock,
11 Jur. 478.
2 Layer's case, 16 How. St. Tr. 246,
286; Swift's Evid. 143.
' [In Bates v. Barber, 4 Cush. 107,
108, it was held, that the preliminary
question as to the knowledge of the repu-
tation need not, and should not, be put.]
* Phil. & Am. on Evid. 925 ; Mawson
V. Hartsink, 4 Esp. 104, per Ld. Ellen-
borough; 1 Stark. Evid. 182; Carlos u.
Brook, 10 Ves. 50.
' The People v. Mather, 4 "Wend. 257,
258; The State v. BosweU, 2 Dev. R.
209, 211 ; Anon. 1 HUl, S. Car. R. 258 ;
Ford V. Ford, 7 Humph. 92.
^ Gass V. Stinson, 2 Sumn. 610, per
Story, J. ; Wood v. Mann, Id. 821 ; Kim-
mel V. Kimmel, 3 S. & R. 336-338 ; Wike
V. Lightner, 11 S. & Rri98; Swift's Evid.
143; Phillips v. Kingfleld, 1 Appleton's
E. 275. In this last case the subject was
ably examined by Shepley, J. who ob-
Berved : " The opinions of a witness are
not legal testimony, except in , special
cases ; such, for example, as experts in
lome profe.ssion or art, those of the wit-
nesses to a will, and, in our practice, opin.
ions on the value of property. In other
cases, the witness is not to substitute hia
opinion for that of the jury ; nor are they
to rely upon any such opinion instead of '
exercising their own judgment, taking
into consideration the whole testimony.
When they have the testimony that the
reputation of a witness is good or bad for
truth, connecting it with his manner of
testifying, and with the other testimony
in the case, they h.ave the elejuents from
which to form a correct conclusion,
whether any and what credit should be
given to his testimony. To permit the
opinion of a witness, that another witness
should not be believed, to be received and
acted upon by a jury, is to allow the
prejudices, passions, and feeMngs of that
witness to form, in part, at least, the ele-
ments of their judgment. To authorize
the question to be put, whether the wit-
ness would believe another witness on
oath, although sustained by no inconsid-
erable weight of authority, is to depart
from sound principles and established rules
of law, respecting the kind of testimony to
be admitted for the consideration of a jury,
and their duties in deciding upon it. I*
moreover would permit the introduction
and indulgence in courts of justice of per
sonal and party hostilities, and of every
unworthy motive by which man can be
actuated, to form the basis of an opinion
to be expressed to a jury to influence their
decision." 1 Applet. R. 379. But qiicere,
whether a witness to impeach reputation
may not be asked, in cross-examination, if
he would not believe the principal witnesi
on oath.
4»*
510
LAW OF EVIDENCE.
[part III.
other party may cross-examine those witnesses as to their means
of knowledge, and the grounds of tlaeir opinion ; or may attack
their general character, and by fresh evidence support the charac-
ter of his own witness. ^ The inquiry must be made as to his
general reputation, where he is best known. It is not enough that
the impeaching witness professes merely to state what he has
heard " others say ; " for those others may be but few. He must
be able to state what is generally said of the person, by those
among whom he dwells, or witli whom he is chiefly conversant ;
for it is this only that constitutes his general reputation or charac-
ter.2 And, ordinarily, the witness ought himself to come from
the neighborhood of the person whose character is in question.
If he is a stranger, sent thither by the adverse party to learn his
character, he will not be allowed to testify as to the result of his
inquiries ; but otherwise, the court will not undertake to determine,
by a preliminary inquiry, whetlier the impeaching witness has
sufficient knowledge of the fact to enable him to testify ; but will
leave the value of his testimony to be determined by the iury.^
i 2 Phil. Evid. 432 ; Mawson v. Hart
sink, 4 Esp. 104, per Ld. Ellenborougli ; 1
Stark. Evid. 182. It is not usual to cross-
examine witnesses to character, unless
there is some definite charge upon wliich
to cross-examine them. Rex v, Hodgkiss,
7 C. & P. 298. Nor can such witnesses be
contradicted as to collateral facts. Lee's
case, 2 Lewin, Cr. Gas. 154. [The court
may exercise its discretion in limiting the
number of iitipeaching witnesses, and like-
wise that of the supporting witnesses ; and
the proper exercise of such discretion is
no ground of error. Bunnell v. Butler, 23
Conn. 65. In the Supreme Judicial Court
of Massachusetts, the court at nisi prius
has in some eases limited the number to
five or six on a side, giving the parties no-
tice beforehand of such intended limita-
tion. In Bunnell v. Butler, uU supra, the
number was limited to six on each side,
the court previously notifyiilg the parties
of the intended limitation.]
^ Boynton v. Kellogg, 3 Mass. 129, per
Parsons, C. J. ; Wike v. Lightner, 11 S. &
E. 198, 199, 200 ; Kiramel v. Kimmel, 3 S.
& R. 337, 338 ; Phillips v. Kingfleld, 1 Ap-
plet. R. 375. The impeaching witness
may also be asked to name the persons
whom he has heard speak against the
character of the witness impeached. Bates
V. Barber, 4 Cush. 107. [Or if the repu-
tation of the witness impeached relates
wholly or in part to his want of punctuali-
ty in paying his debts. Pierce v. Newton,
13 Gray, 528.] [*But such evidence
should commonly be restricted to the
character of the witness for truth. Shaw
V. Emery, 42 Me. R. 59 ; Craig v. State,
5 Ohio, N. s. 605 ; State v. Sater, 8 Clarke,
420. But in some of the states such in-
quiries take a wider range. Eason v. Chap-
man, 21 lU. 38 ; GiUiam u. State, 1 He.-id,
38.1
" Douglass V. Tousey, 2 Wend. 352;
Bates V. Biirber, 4 Cush. 107 ; Sleeper v.
Van Middlesworth, 4 Denio, 431. Wheth-
er this inquiry into the general reputation
or character of the witness should be re-
stricted to his reputation for truth .-ind
veracity, or may be made in general terms,
involving his entire moral character and
estimation in society, is a point upon which
the American practice is not uniform. Alt
are agreed, that the true and primary in-
quiry is into his general character for truth
and veracity, and to this point, in the
Northern states, it is still confined. But
in several of the other states greater liiti-
tude is allowed. In South Carolina, the
true mode is said to.be, first, to ask what
is his general character, .and if this is
said to be bad, then, to inquire whether
the witness would beUeve him on oath;
leaving the party who adduced him to
inquire whether, notwithstanding his bad
character in other respects, he has not pre
served his character for truth. Anon.
CHAP. III.J
EXAMINATION OF WITNESSES.
511
§ 462. (3.) The credit of a witness may also be impeaclied by-
proof, that he has made statements out of court, contrary to what
he has testified at the trial. But it is only in such matters as are
relevant to the issue, that the witness can be contradicted. And
before this can be done, it is generally held necessary, in the case
of verbal statements, first to ask him as to the time, place, and
person involved in the supposed contradiction. It is not enough
to ask him the general question, whether he has ever said so and
so, nor whether he has always told the same story ; because it may
frequently happen, that, upon the general question, he may not
remember whether he has so said ; whereas, when his attention is
challenged to particular circumstances and occasions, he may
recollect and explain what he has formerly said.^ This course of
HiU, S. Car. R. 251, 258, 259. In Ken-
tucky, the same general range of inquiry
is permitted ; and is thus defended by one
of the learned judges ; " Every person
conversant with human nature must be
sensible of the kindred nature of the vices
to which it is addicted. So true is this,
that, to ascertain the existence of one vice,
of a particular character, is frequently to
prove the existence of more, at the same
time, in the same individual. Add to this,
thai persons of infamous character may,
and do frequently exist, who have formed
no character as to their lack of truth ; and
society may have never had the opportu-
nity of ascertaining that they are false in
their words or oaths. At the same time,
they may be so notoriously guilty of act-
ing falsehood, in frauds, forgeries, and
other crimes, as would leave no doubt of
their being capable of speaking and swear-
ing it, especially as they may frequently
depose falsehood with greater security
against detection, than practice those other
vices. In such cases, and with such char-
acters, ought the jury to be precluded
from drawing inferences unfavorable to
their truth as witnesses, by excluding
their general turpitude ? By the charac-
ter of every individual, that is, by the
estimation in which he is held in the so-
ciety or neighborhood where he is conver-
sant, his word and his oath are estimated.
If that is free from imputation, his testi-
mony weighs well. If it is sullied, in the
same proportion his word will be doubted.
We conceive it perfectly safe, and most
conducive to the purposes of justice, to
trust the jury with a full knowledge of
the standing of a witness, into whose char-
acter an inquiry is made. It v?ill not
thence follow, that from minor vices they
will draw the conclusion, in every in-
stance, that his oath must be discredited,
but only be put on their guard to scruti-
nize his statements more strictly ; while
in cases of vile reputation, in other res-
pects, they would be warranted in disbe-
lieving him, though he had never been
called so often to the book as to fix upon
him the reputation of a liar, when on
oath." Hume v. Scott, 3 A. K. Marsh,
261, 262, per Mills, J. This decision has
been cited and approved in North Carolina,
where a similar course prevails. The
State V. Boswell, 2 Dev. Law Rep. 209,
210. See also The People v. Mather, 4
Wend. 257, 258, per Marcy, J. See also
3 Am. Law .Jour. 154-162, n. s., where aU
the cases on this point are collected and
reviewed. Whether evidence of common
prostitution is admissible to impeach a
female witness, qucere. See Common-
wealth V. Murphy, 14 Mass. 387 ; 2 Stark.
Evid. 369, note (1), by Metcalf, that it is
admissible. Spears v. Forrest, 15 Verm.
435, that it is not. [And Commonwealth
V. Churchill, 11 Met. 538, that it is not,
thus overruling Commonwealth v. Mur-
phy. Teese v. Huntington, 23 How. 2.]
1 Angus v^ Smitli, 1 M. & Malk. 473,
per Tindal, C. J. ; Crowley v. Page, 7 • C.
& P. 789, per Parke, B. ; Regina v. Shel-
lard, 9 C. & P. 277 ; Regina v. Holden, 8
C. & P. 606 ; Palmer v. Haight, 2 Barb.
s.c. R. 210. In the Queen's case, this sub-
ject was very much discussed, and the
unanimous opinion of the learned judges
was deUvered , by Abbott, C. J., in these
terms : " The legitimate object of the pro-
posed proof is to discredit the witness.
Now, the usual practice of the courts be-
low, and a practice to which we are not
aware of any exception, is this : if it be
512
LAW OF EVIDENCE.
[PABT ni.
proceeding is considered indispensable, from a sense of justice to
the witness ; for, as the direct tendency of the evidence is to im-
intended to bring the credit of a witness
into question by proof of any thing that he
may have said or declared, touching the
cause, the witness is first asked, upon
cross-examination, whether or no he has
said or declared that which is intended to
be proved. If the witness admits the
words or declarations imputed to him, the
proof on the other side becomes unneces-
sary ; and the witness has an opportunity
of giving such reason, explanation, or ex-
culpation of his conduct, if any there may
be, as the particular circumstances of the
transaction may happen to furnish ; and
thus the whole matter is brought before
the court at once, which, in our opinion,
is the most convenient course. If the
witness denies the words or declarations
imputed to him, the adverse party has an
opportunity afterwards of contending that
the matter of the speech or declaration is
such, that he is not to be bound by the
answer of the witness, but may contradict
and Msify it ; and, if it be found to be
such, his proof in contradiction will be
received at the proper season. If the wit-
ness decUnes to give any answer to the
question proposed to him, by reason of
the tendency thereof to criminate himself,
and the court is of opinion that he cannot
be compelled to answer, the adverse party
has, in this instance, also, his subsequent
opportunity of tendering his proof of the
matter, which is received, if by law it
ought to be received. But the possibility
that the witness may decline to answer
the question affords no sufficient reason
for not giving him the opportunity of an-
swering, and of offering such explanatory
or exculpatory matter as I have before
alluded to; and it is, in our opinion, of
great importance that this opportunity
should be thus afforded, not only for the
purpose already mentioned, but because,
if not given in the first instance, it may
be whoUy lost ; for a witness, who has been
examined, and has no reason to suppose
that his further attendance is requisite,
often departs the court, and may not be
found or brought back until the trial be at
an end. So that, if evidence of this sort
could be adduced on tlie sudden and by
surprise, without any previous intimation
to the witness or to the party producing
him, great injustice might be done ; and,
in our opinion, not unfrequently, would
be done both to the witness and to the
party ; and this not only in the case of a
witness called by a plaintiff or prosecutor,
but equally so in the case of a witness
called by a defendant; and one of the
great objects of the course of proceeding,
estabhshed in our courts, is the preven-
tion of surprise, as far as practicable, upon
any person who may appear therein."
The Queen's case, 2 Brod. & Bing. 313,
314. In the United States, the same course
is understood to be generally adopted;
fConrad v. Griffey, 16 How. U. S. 38;
Sprague v. Cadwell, 12 Barb. 516 ; Unis v
Charlton's Adm'r, 12 Gratt. 484; Wright
V. Hicks, 15 Geo. 160 ; CarUsle v. Hunley,
16 Ala. 622; Powell v. State, 19 lb. 577;
Drennen v. Lindsey, 15 Ark. 359 ; Nelson
V. State, 2 Swan, 237 ; Smith v. People, 2
Mich. 415;] except in Maine; Ware v.
Ware, 8 Greenl. 42 ; and perhaps in Mas-
sachusetts; Tucker v. Welsh, 17 Mass. 160.
But see Brown v. Bellows, 4 Pick. 188
[In Massachusetts the rule is now settled,
that the witness need not be fii-st asked
whether he has ever testified differently.
Gould V. Norfolk Lead Co. 9 Gush. 338;
Commonwealth v. Hawkins, 3 Gray, 463,
464. In the latter case, "ISolles, for the
defendant, offered the depositions, taken
before the coroner, at the inquest on the
body of Leet, for the purpose of contra-
dicting the evidence given by the same
witnesses at this trial, when called by the
commonwealth. The attorney-general ob-
jected, on the ground that the witnesses
sought to be impeached had not been
asked, on their examination, whether they
had not previously made different state-
ments, nor had their attention in any way
been called to their depositions before the
coroner. But the court were of opinion
that, for the purpose of impeaching the
witnesses, such parts of their depositions
were admissible as were contradictory of
the evidence given by them at the trial ;
that the uniform practice in this common-
wealth, differing in this respect from tliat
of England, and some of the other states,
had been, as stated in Tucker v. Welsh,
17 Mass. 160, to allow the introduction of
evidence that a witness had previously
made different statements, witliout first
calling his attention to such statements ;
that, after such pai'ts had been read, the
commonwealth would have the right to
require the whole of the former statement
to be read, and might recall the witness
afterwards to explain the alleged discrep-
ancy. Bolles then proposed to point out
to the jury that these witnesses had omit-
ted, in their testimony before the coroner,
material facts to which they had now tes-
tified, and wliich, he argued were so im-
CHJlP. III.J
EXAMINATION OF WITNESSES.
513
peach his veracity, common justice requires that, by first calling his
attention to the subject, he should have an opportunity to recollect
the facts, and, if necessary, to correct the statement already given,
as well as by a re-examination to explain the nature, circumstances,
meaning, and design of what he is proved elsewhere to have said.^
portant that they could not have been
omitted then, and remembered now, con-
sistently with the ordinary worldngs of a
good memory and a good conscience.
But the court ruled that those parts only
of the testimony before the coroner could
be read, for the purpose of impeaching the
character of the witness, which went to
show a discrepancy or contradiction, as
by showing that the witness had given
different accounts at diflTerent times, by
alleging a fact at one time which he de-
nied at another, or by stating it in two
ways inconsistent with each other; and
that the mere omission to state a fact, or
stating it less fully before the coroner, was
not a subject for comment to the jury, un-
less the attention of the witness was par-
ticularly called to it at the inquest ; " and
in New Hampshire, Titus v. Ash, 4 Foster,
319; and in Connecticut, Hedge v. Clapp,
22 Conn. 622, in wliich Tucker v. Welsh,
17 Mass. 160, is cited and approved. Robin-
son V. Hutchinson, 31 Vt. 443.] [*The rule
requiring the witness first to be inquired
of as to his having made such contradic-
tory statements seems not to obtain with
entire approbation in some of the states.
Cook V. Brown, 84 N. H. 460 ; Howland v.
Conway, 1 Abbott, Adm. 281. But in
others it is rigidly enforced. Jarboe v. Kep-
ler, 8 Ind. 314; Galena, &c., R. R. Co, v.
Fay, 16 111. 558 ; State v. Davis, 29 Mo.
391 ; Ketchingman v. State, 6 Wis. 426.
But in order to lay the foundation for in-
quiring of the witness as to what he may
have said out of court, he must first be
examined as to the facts upon that point,
in order to make the inquiry material.
Combs V. Winchester, 39 N.H. 13 ; Bearss
I'. Copley, 10 N.Y. App. 93.] The utility
of this practice, and of confronting the
two opposing witnesses, is illustrated by
a case mentioned by Mr. Justice Cowen,
in his notes to Phillips on Evidence,
vol. 2, p. 774 (note 653 to Phil. Evid. 308) ;
"in which a highly respectable witness,
sought to be impeached through an out-
of-door conversation by another witness,
who seemed very willing to bring him
into a contradictiou, upon both being
placed on the stand, furnished such a dis-
tinction to the latter as corrected his mem-
ory, and led him, in half a minute, to
acknowledge thqt he was wrong. The
difference lay in only one word. The
first witness had now sworn, that he did
not rely on a certain firm as being in good
credit ; for he was not well informed on
the subject. The former words imputed
to him were a plain admission that he was
fully informed, and did rely on their credit.
It turned out that, in his former conversa-
tion, he spoke of a partnership, from which
one name was soon afterward withdrawn,
leaving him now to speak of the latter
firm, thus weakened by the. withdrawal.
In regard to the credit of the first firm, he
had, in truth, been fully informed by let-
ters. With respect to the last, he had no
information. . The sound in the titles of
the two firms was so nearly alike, that the
ear would easily confound them ; and, had
it not been for the colloquium thus brought
on, an apparent contradiction would doubt-
less have been kept on foot, for various
purposes, through a long trial. It involved
an inquiry into a credit which had been
given to another, on the fraudulent repre-
sentations of the defendant." Mr. Starkie,
for a different purpose, mentions another
case, of similar character, where the judge
understood the witness to testify that the
prisoner, who was charged with forgery,
said, "I am the drawer, acceptor, and
indorser of the bill ; " whereas the
words were, "I know the drawer, ac-
cepto'r, and indorser of the bill." 1
Stark. Evid. 484.
1 Regina ;;. St. George, 9 C. & P. 483,
489 ; Carpenter v. Wahl, 11 Ad. & El.
803. On this subject, the following ob-
servations of Lord Langdale deserve great
consideration. " I do not think," said he,
" that the veracity or even the accuracy
of an ignorant and illiterate person is to
be conclusively tested by comparing an
affidavit which he has made, with his tes-
timony given upon an oral examination
in open court. We have too much expe-
rience of the great infirmity of affidavit
evidence. When the witness is illiterate
and ignorant, the language presented to
the court is not his ; it is, and must be,
the language of the person who prepares
the affidavit ; and it may be, and too often
is, the expression of that person's erro-
neous inference as to the meaning of the
language used by the witness himself;
and however carefully the affidavit mav
614
LAW OP EVIDENCE.
[part m.
And this rule is extended, not only to contradictory statements by
the witness, but to other declarations, and to acts done by him,
through the medium of verbal communications or correspondence,
which are offered with the view either to contradict his testimony
in chief, or to prove him a corrupt witness himself, or to have been
guilty of attempting to corrupt others.^
§ 463. A similar principle prevails in cross-examining a witness
as to the contents of a letter, or other paper written by him. The
counsel will not be permitted to represent, iii the statement of a
question, the contents of a letter, and to ask the witness whether
he wrote a letter to any person with such contents, or contents to
be read over to the witness, he may not
understand what is said in language so
different from that which he is accustomed
to use. Having expressed his meaning in
his own language, and finding it translated
by a person on whom he relies, into lan-
guage not his own, and which he does not
perfectly understand, he is too apt to ac-
quiesce; and testimony not intended by
him is brought before the court as his.
Again, evidence taken on affidavit, being
taken ex parte, is almost always incom-
plete, and often inaccurate, sometimes
Irom partial suggestions, and sometimes
from the want of suggestions and inqui-
ries, without the aid of which the witness
may be unable to recall the connected col-
lateral circumstances, necessary for the
correction of the first suggestions of his
memory, and for his accurate recollection
of all that belongs to the subject. For
these and other reasons, I do not think
that discrepancies between the affidavit
and the oral testimony of a witness are
conclusive against the testimony of the
witness. It is further to be observed, that
witnesses, and particularly ignorant and
illiterate witnesses, must always be liable
to give imperfect or erroneous evidence,
even when orally examined in open court.
The novelty of the situation, the agitation
and hurry which accompanies it, the ca-
jolery or intimidation to which the wit>
nesses may be subjected, the want of
questions calculated to excite those recol-
lections, which might clear up every diffi-
culty, and the confusion occasioned by
cross-examination, as it is too often con-
ducted, may give rise to important errors
and omissions ; and the ti-uth is to be elicit-
ed, not by giving equal weight to every
word the witness may have uttered, but
by considering all the words with refer-
ence to the particular occasion of saying
them, and to the personal demeanor and
deportment of the witness during the
examination. All the discrepancies which
occur, and all that the witness says in
respect of them, are to be carefully at-
tended to, and the result, according to
the special circumstances of each case,
may be, either that the testimony must be
altogether rejected, on the ground that
the witness has said that which is untrue,
either wilfully or under self-delusion, so
strong as to invalidate all that he has said;
or else the result must be, that the testi-
mony must, as to the main purpose, be
admitted, notwithstanding discrepancies
which may have arisen from innocent
mistake, extending to collateral matters,
but perhaps not affecting the main ques-
tion in any important degree." See John-
sou V. Todd, 5 Beav. 600-602. See Mc-
Kinney v. Neil, 1 McLean, 540 ; Hazard
V. N.Y.& Providence R.R. 2 R. I. R. 62.
1 See 2 Brod. & Bing. 300, 313; 1
Mood. & Malk. 473. If the witness does
not recollect the conversation imputed to
Mm, it may be proved by another witness,
provided it is relevant to the matter in
issue. Crowley v. Page, 7 C. & P. 789,
per Parke, B. The contrary seems to
have been ruled some years before, in
Pain V. Beestbn, 1 M. & Rob. 20, per Tin-
dal, C. J. But if he is asked, upon cross-
examination, if he will swear that he has
not said so and so, and he answers that
he will not swear that he has not, the
party cannot be called to contradict him.
Long V. Hitchcock, 9 C. & P. 619; supra,
§ 449. If he denies having made the con-
tradictory statements inquired of, and a
witness is called to prove that he did, the
particular words must not be put, but
the witness must be required to relate
what passed. Hallett v. Cousens, 2 M. &
Rob. 238. [* This contradiction may be
made out by a series of documents. Jack-
son V.' Thomason, 8 Jur. >j. s. 134.]
CHAP, m.J EXAMINATION OP WITNESSES. 615
the like efifect; without having first shown to the witness the
letter, and having asked him whether he wrote that letter, and his
admitting that he wrote it. For the contents of every written
paper, according to the ordinary and well-established rules of evi-
dence, are to be proved by the paper itself, and by that alone, if it
is in existence.^ But it is not required that the whole paper
should be shown to the witness. Two or three lines only of a
letter may be exhibited to him, and he may be asked, whether he
wrote the part exhibited. If he denies, or docs not admit that
he wrote that part, he cannot be examined as to the contents of
such letter, for the reason already given ; nor is the opposite coun-
sel entitled, in that case, to look at the paper.^ And if he admits
the letter to be his writing, he cannot be asked whether statements,
such as the counsel may suggest, are contained in it, but the whole
lettei itself must be read, as the only competent evidence of that
fact.^ According to the ordinary rule of proceeding in such cases,
the letter is to be read as the evidence of the cross-examining
counsel, in his turn, when he shall have opened his case. But if
he suggests to the court, that he wishes to have the letter read
immediately, in order to found certain questions upon its contents,
after they shall have been made known to the court, which other-
wise could not well or effectually be done ; that becomes an ex-
cepted case ; and for the convenient administration of justice, the
letter is permitted to be read, as part of the evidence of the coun-
sel so proposing it, subject to all the consequences of its being
considered.*
§ 464. If the .paper in question is lost, it is obvious that the
^ The Queen's case, 2 Brod. & Bing. for the purpose of explaining it, read a
286 ; supra, §§ 87, 88 ; Bellii^er v. The letter from himself to which the letter of
People, 8 Wend. 595, 598 ; Sex v. Ed- the witness is a reply. Trischet v. Ham
wards, 8 C. & P. 26 ; Kegina v. Taylor, Id. ilton Insurance Co. 14 Gray, 456.] [* The
726, If the paper is not to be had, a cer- English courts hold that it is competent to
tifled copy may be used. Regina u. Shel- cross-examine the party, when ofiered to
lard, 9 C. & P. 277. So, where a certified support his own case, as to the contents
copy is in the case for other purposes, it of an affidavit or letter not produced.
m'xy be used for this also. Davies v. Da- Sladden v. Sergeant, 1 F. & ]?. 322 ; Far-
viH:s, 9 C. & P. 253. But the witness, on row v. Bloomfield, Id. 653. So, too, as to
his own letter being shown to him, cannot whether he had read a letter of a certain
V'e asked whether he wrote it in answer to date, and in certain terms. Ireland v.
» letter to him of a certain tenor or import. Stiff, Id. 340. So also as to the rules of a
such letter not being produced. See Mc- society to which the party belonged.
Donnell v. Evans, 16 Jur. 103, where the Minns v. Smith, Id. 818.]
rule in question is fully discussed. [Stamp- ^ Regina o. Buncombe, 8 C. & P. 369.
er V. Griffin, 12 Geo. 450. If a party, for » Ibid. ; 2 Brod. & Bing. 288.
the purpose of discrediting a witness, by ^ The Queen's case, 2 Brod. & Bing.
showing a bias, offers in evidence a letter 289, 290.
from the witness to himself, he may also
516 LAW OP EVIDENCE. [PABT HI.
course of examination, just stated, cannot be adopted. In such
case, it would seem, that regularly, the proof of the loss of the
paper should first be offered, and that tlien the witness may be
cross-examined as to its contents ; after which he may be contra-
dicted by secondary evidence of the contents of the paper. But
where this course would be likely to occasion inconvenience, by
disturbing the regular progress of the cause, and distracting the
attention, it will always be in the power of the judge, in his dis-
cretion, to prevent this inconvenience, by postponing the examina-
tion, as to this point, to some other stage of the cause.^
§ 465. A witness cannot be asked on cross-examination, whether
he has written such a thing, stating its particular nature or purport ;
the proper course being to put the writing into his hands, and to
ask him whether it is his writing. And if he is asked generally,
whether he has made representations, of the particular nature
stated to him, the counsel will be required to specify, whether the
question refers to representations in writing, or in words alone ;
and if the former is meant, the inquiry, for the reasons before
mentioned, will be suppressed, unless the writing is produced.^
But whether the witness may be asked the general question,
whether he has given any account, by letter or otherwise, differing
from his present statement ; the question being proposed without
any reference to the circumstance, whether the writing, if there be
any, is or is not in existence, or whether it has or has not been
seen by the cross-examining counsel ; is a point which is consid-
ered still open for discussion. But so broad a question, it is con-
ceived, can be of very little use, except to test the strength of the
witness's memory, or his confidence in assertion ; and, as such, it
may well be suffered to remain with other questions of that class,
subject to the discretion of the judge.^
§ 466. If the memory of the witness is refreshed by a paper put
into his hands, the adverse party may cross-examine the witness
upon that paper, without making it his evidence in the cause. But
if it be a book of entries, he cannot cross-examine as to other
1 See McDonnell v. Evans, 16 Jur. 103 ; party may object to improper inquiry, al-
ii Com. B. 930. though the witness do not. Newcomb v.
^ The Queen's case, 2 Brod. & Bing. Griswold, 24 N.Y. App. 298. And if one
292-294. party cross-examine a witness as to certain
^ This question is raised and acutely passages in a letter, the other may insist
treated, in Phil. & Am. on Evid. 932-938. upon having the whole letter read. Sm ith
See also Regina v. Shellard, 9 C. & P. 277 ; v. Prickett, 7 Jur. n. s. 610.1
Eegina v Holden, 8 C. & P. 606. [* The
CHAP. III.] EXAMINATION OF WITNESSES. 517
entries in the book without making them his evidence.^ But if
the paper is shown to the witness merely to proTC the handwriting,
this alone does not give the opposite party a right to inspect it, or
to cross-examine as to its contents.^ And if the paper is shown to
the witness upon his cross-examination, and he is cross-examined
upon it, the party will not be bound to have the paper read, until
he has entered upon his own case.^
§ 467. After a witness has been cross-examined respecting a
former statement made by him, the party who called him has
a right to re-examine him to the same matter.* The counsel has a
right upon such re-examination, to ask all questions which may
be proper to draw forth an explanation of the sense and meaning
of the expressions, used by the witness on cross-examination. If
they be in themselves doubtful ; and also of the motive by which
the witness was induced to use those expressions ; but he has no
right to go further and to introduce matter new in itself, and not
suited to the purpose of explaining either the expressions or the
motives of the witness.^ This point, after having been much dis-
cussed in the Queen's case, was brought before the court several
years afterwards, when the learned judges held it as settled, that
proof of a detached statement, made by a witness at a former time,
does not authorize proof, by the party calling that witness, of all
that he said at the same time, but only of so much as can be in
some way connected with the statement proved.^ Therefore,
where a witness had been cross-examined as to what the plaintiff
said in a particular conversation, it was held that he could not be
re-examined as to the other assertions, made by the plaintiff in the
same conversation, but not connected with the assertions to which
the cross-examination related ; although the assertions as to
' Gregory v. Tavernor, 6 C. & P. 280 ; eight judges, whose opinion was taken in
supra, § 437, note. And see Stephens o. the House of Lords, in the Q'leen's case,
Foster, 6 C. &. P. 289. as delivered by Lord Tenterden, 2 Brod.
2 Russell V. Eider, 6 C. & P. 416 ; Sin- & Bing. 297. The counsel calling a wit
, clair V. Stevenson, 1 C. & P. 582; 2 Bing. ness who gives adverse testimony, cannot,
614, s. c. ; supra, § 437, note. in re-examination, ask the witness whether
' Holland v. Reeves, 7 C. & P. 36. he has not given a diiferent account of the
* In the examination of witnesses in matter to the attorney. Winter v. Butt, 2
chancery, under a commission to take de- M. & Rob. 357. See supra, § 444. See
positions, the plaintiff is not allowed to also Holdsworth v. Mayor of Dartmouth,
re-examine, unless upon a special case, and Id. 153. But he may ask the question
then only as to matters not comprised in upon his examination in chief. Wright v.
the former interrogatories. King of Han- Beckett, 1 M. & Rob. 414 ; Dunn v. Aslett,
over V. Wheatley, 4 Beav. 78. 2 M. & Rob. 122.
^ Such was the opinion of seven out of ^ Prince v. Same, 7 Ad. & El. 627-
TOL. I. 44
518 LAW OF EVIDENCE. [PART ITI.
which it was proposed to re-examiue him were connected with the
subject-matter of the suit.^
§ 468. If the counsel chooses to cross-examine tlie witness to
faots, which were not admissible in evidence, the other party has a
right to re-examine him as to the evidence so given. Tlius, where
issue was joined upon a plea of prescription, to a declaration for
trespass in G-., and the plaintiff's witnesses were asked, in cross-
examination, questions respecting the user in other places than
G., which they proved; it was held that the plaintiff, in re-exami-
nation, might show an interruption in the user in such other
places.^ But an adverse witness will not be permitted to obtrude
such irrelevant matter, in answer to a question not relating to it ;
and if he should, the other party may either cross-examine to
it, or may apply to have it stricken out of the judge's notes.^
§ 469. Where evidence of contradictory statements by a witness,
or of other particular facts, as, for example, that he has been com-
mitted to the House of Correction, is offered by way of impeach-
ing his veracity, his general character for truth being thus in
some sort put in issue, it has been deemed reasonable to admit
general evidence, that he is a man of strict integrity, and scru-
pulous regard for truth.* But evidence, that he has on other
' Prince v. Samo, 7 Ad. & El. 627. In been indicted and tried for setting fire to
tWs case, the opinion of Lord Tenterden, his barn, and lie answered in the affirma-
in the Queen's case, 2 Brod. & Bing. 298, tive, and also stated that he was acquitted
quoted in 1 Stark. Evid. 180, that evidence on the trial of the indictment. In reply to
of the whole conversation, if connected this cross-examination, and to support the
with the suit, was admissible, though it credit of the witness, the party calling
were of matters not touched in the cross- him offered evidence as to his reputation
examination, was considered, and over- for truth and veracity, which was admit-
ruled. [Button v. "Woodman, 9 Cush. ted under objection. The full court de-
265.] cided that the testimony should not have
2 Blewett V. Tregonning, 3 Ad. & El. been admitted. Thomas, J., in deUvering
554. the opinion of the court, said : " If the
' Id. 554, 565, 581, 584. cross-examination of the witness showed
* Phil. & Am. on Evid. 944 ; Rex v. that he had been charged with the com-
Clarke, 2 Stark. R. 241. And see supra, mission of crime, it showed also that upon
§§ 54, 55 ; I'aine v. Tilden, 5 Washb. 554 ; fair trial he had been fully acquitted. It
Hadjn v. f iooden, 13 Ala. 718 ; Sweet v. left his character as it found it. We think,
Sherman, 6 Washb. 23. [Where a witness therefore, the evidence as to his reputation
admitieJ on cross-examination, that he for truth and integrity should not have
had been prosecuted, but not tried, for been admitted. Had the effect of the
perjury, the party calling him was not cross-examination been otherwise, we are
permitted to give evidence of his general not prepared to say the reputation of the
good character. People v. Gay, 1 Parker, witness for truth would have been put in
C. R. 308: 8. c. 3 Selden, 378; Wertz v. issue. The doctrine stated in the text-
May, 21 Penn. St. R-. 274. . See Har- books has but slight foundation of author-
rington v. Lincoln, 4 Gray, 563, 565, 566, ity to rest upon, and as matter of reason
567. ■ In this case a witness was asked in will not bear a very careful probing. The
cross-examination, for the avowed purpose case, however, does not render a decision
of discrediting liim, whether he had not of the point necessary. See also Hey wood
CHAP, m.]
EXAMINATION OP WITNESSES.
519
occasions made statements, similar to what he has testified in the
cause, is not admissible ; ^ unless where a design to misrepresent
is charged upon the witness, in consequence of his relation to
the party, or to the cause ; in which case, it seems, it may be
proper to show that he made a similar statement before that
relation existed.^ So, if the character of a deceased attesting
witness to a deed or will is impeached on the ground of fraud,
evidence of his general good character is admissible.^ But mere
contradiction among witnesses examined in court supplies no
ground for admitting general evidence as to character.*
[* § 469a. There is considerable conflict in the decisions, in
». Keed, 4 Gray, 574. It is admissible to
ask a witness if he has not said that he
had testified for the defendant, but if
called again, he thought he should testify
for the plaintiff, and if he does not recol-
lect malong such a statement to prove that
he did so. Chapman v. Coffin, 14 Gray,
454.] [* And it seems that the mere at-
tempt to impeach a witness, by inquiring
of another witness what was his character
for truth, will justify general evidence of
his good character, notwithstanding the
witness inquired of said his character was
good. Commonwealth v. Ingraham, 7
Gray, 46. But in Brown v. Mooers, 6
Gray, 451, it was held that where the
character of the witness is only attempted
to be impeached by proving contradictory
statements made by him out of court, he
could not be sustained by general evidence
of good character ; and the court declare
that the text in the preceding section of
our author "is not law," an inference
rather too obvious to require much publi-
cation, provided the decision of the court
is law. The reason of the thing is cer-
tainly in favor of Mr. Greenleaf's doc-
trine. And how the court in Massachusetts
can expect to reconcile the spirit and prin-
ciple of the two cases cited by us in this
note will be for them to consider. We
would not like to say, they are neither of
them sound law; bftt it seems very ob-
vious to us both cannot be maintained
tpon any sound view of the principle in-
volved in the rule. The case of Brown v.
Mooers is certainly too narrow in its re-
strictions. iPor if the witness is clearly
shown to have made contradictory state-
ments about the matter, he is surely far
more effectually impeached than if a wit-
ness were asked for his character for truth,
and declared it to be good. In the latter
case it would seem no ground had been
laid for the, introduction of general evi-
dence of good character, more than if the
counsel had inquired of the witness him-
self if he had ever been impeached in
court, and he had repUed in the negative.
But in the former case it is obvious the
witness's character for 'truth is seriously
damaged. In other states, general evi-
dence of good character is received ; and
we must still maintain that our author is
fairly warranted in saying that it should
be. State v. Howe, 12 Vt. 93 ; and cases
cited before in this note.]
1 Bull. N. P. 294. See Cooke v. Cur-
tis, 6 H. & J. 93, contra; [Smith v. Morgan,
38 Maine, 468; Smith v. Stickney, 17
Barb. 489. In Deshon v. Merchants' Ins.
Co. 11 Met. 199, 209, it was laid down as
a clear rule of law that a witness cannot
be allowed to state, on the direct examina-
tion, with the view of strengthening his
testimony, that he communicated to third
persons, at prior times, the same or other
particular facts. In Commonwealth v.
Wilson, 1 Gray, 340, where in re-examina-
tion similar testimony was offered for a
like purpose, Shaw, C. J., said, " The
rule excluding such testimony is confined
to the examination in chief, and does not
apply to a case where the other party has
sought to impeach the witness on cross-
examination. The purpose of the cross-
examination in this particular having been
to impeach the witness, the question may
be put." See also Boston & Wore. R. R.
Co. V. Dana, 1 Gray, 83, 103.]
2 2 Phil. Evid. 445, 44'6.
8 Doe 0. Stephenson, 3 Esp. 284; 4
Esp. 50, s. c, cited and approved by Lord
Ellenborough, in The Bishop of Durham v.
Beaumont, 1 Campb. 207-210, and in Pro-
vis V. Reed, 5 Bing. 136.
* Bishop of Durham v. Beaumont, 1
Campb. 207 ; 1 Stark. Evid. 186 ; Russell
V. Coffin, 8 Pick. 143, 164; Starks v. The
People, 5 Denio. 106.
bZO LAW OP EVIDENCE. [PAET III.
regard to the order of proof, and the course of trial, in the dif-
ferent states. In some of the states, the party is only required to
make aprimd/acie case in the opening, and may reserve confirma-
tory proof in support of the very points made in the opening, till
he finds upon what points his opening case is attacked, and
then fortify it upon those points.^ And, in some of the states, it
is understood, that this process of making and answering the
plaintiff's case is allowed to be repeated an indefinite number of
times.^ But, at common law, the plaintiff puts in his whole evi-
dence upon every point which he opens, and the defendant then
puts in his entire case ; and the plaintiff's reply is limited to new
points, first opened by defendant. And the court in banc, in
passing upon the sufficiency of plaintiff's case, cannot look at the
defendant's evidence.^ And it is held to rest in the discretion of
the judge, subject to review in banc, at what stage in the trial
evidence may be produced.*]
1 [* Clayes v. Ferris, 10 Vt. il2. But, competent evidence, this will entitle the
In this state, the defendant must put in all other to go into evidence in reply to it.
his evidence in the first instance, and the Furbush v. Goodwin, 5 Poster, 425. But
plaintiff in his reply is confined to fortify- in general the rule is otherwise. Mitchell
ing those points in his case which are at- v. Sellman, 5 Md. 376 ; Shedden v. Pat-
tacked by defendant. rick, 2 Sw. & Tr. 170.
2 This is the case in New Hampshire, ' Eawlings v. Chandler, 9 Exch. 687.
where, if one party give irrelevant or in- * Wright v. Willcox, 9 C. B. 650 ]
CHAP. rV.] PUBLIC DOCUMENTS. 521
CHAPTEK IV.
OP WRITTEN EVIDENCE.
f* § 470. Writings, viewed as evidence, are public and private.
471. All persons entitled to inspection of public documenta.
472. Officers of court compellable to give inspection of papers.
473. As to inferior courts the right is more restricted.
474. Books of corporations public as to corporators.
475. Books of public offices may be inspected by those interested.
476. But not, if liable to affect injuriously public interests.
477. Rule to inspect and take copies of books and writings.
478. When no action pending, may be obtained by mandamus, &c.
479. Proof of public acts not judicial.
480. Legislative acts proved by official printed copies.
481. Courts do not take judicial notice of private acts.
482. Journals of legislature proved by sworn or official printed copies.
483. Official registers admissible as original evidence.
484. May be proved by duly authenticated copies.
485. Must be contemporaneous and from proper repository.
486. Proof of foreign laws addressed to the court. Denied.
487. Foreign written law proved by authenticated copy, or by proclamation.
488. Sworn copy sufficient. Unwritten law proved by experts.
488a. How far courts will presume the existence of same law in foreign country.
489. Acts of state legislature proved by official printed copy, or by state seal.
490. Courts of the United States take notice of state statutes, and the state courta
also of acts of congress.
491. Public documents, evidence of facts recited in them.
492. Official gazette, proof of official acts there published.
493. To what extent official registers evidence.
494. The register of a ship has no official character.
495. Log-book of ship not evidence unless made so by statute.
496. Character of official registry established by custom as well as statute.
497. Books of history admissible to prove general facts of ancient date.
498. Certificates not admissible as evidence unless made so by statute.]
§ 470. Writings are divisible into two classes, namely, Public
and Private. The former consists of the acts of public function-
aries, in the executive, legislative, and judicial departments of
government, including, under this general head, the transactions
which official persons are required to enter in books or registers,
44*
/»22 LAW OF EVIDENCE. [PABT III.
in the coxirse of their public duties, and which occur within the
circle of their own personal knowledge and observation. To the
same head may be referred the consideration of documentary evi-
dence of the acts of state, the laws and judgments of courts of
foreign governm'ents. Public writings are susceptible of another
division, they being either (1.) judicial, or (2.) not judicial ; and
with respect to the means and mode of proving them, they may be
classed into, (1.) those which are of record, and (2.) those which
are not of record. It is proposed to treat, first, of public docu-
ments, and secondly, of those writings which are private. And in
regard to both classes, our inquiries will be directed, (1.) to the
mode of obtaining an inspection of such documents and writings ;
(2.) to the method of proving them; and, (3.) to their admissi-
bility and effect.-
§ 471. And first, in regard to the inspection op public docu-
ments, it has been admitted, from a very early period, that the
inspection and exemplification of the records of the king's courts is
the common right of the subject. This right was extended, by an
ancient statute,^ to cases where the subject was concerned against
the king. The exercise of this right does not appear to have been
restrained, until the reign of Charles II., when, in consequence of
the frequency of actions for malicious prosecution, which could
not be supported without a copy of the record, the judges made
an order for the regulation of the sessions at the Old Bailey
prohibiting the granting of any copy of an indictment for felony,
without a special order, upon motion in open court, at the general
jaii delivery.^ This order, it is to be observed, relates only to
indictments for felony. In cases of misdemeanor, the right to a
copy has never been questioned.* But in the United States, no
1 46 Ed. ni., in the Preface to 3 Coke's tious, refused an application for a copy of
Eep. p. iv. the record, on the ground that no order
^ Orders and Directions, 16 Car. II., pre- was necessary; declaring, that "by the
fixed to Sir J. Kelyng's Reports, Order rii. laws of the realm every prisoner, upon his
With respect to the general records of the acquittal, had an undoubted right and title
realm, in such cases, fcopies are obtained to a copy of the record of such acquittal,
upon, application to the attorney-general, for any use he might tliink fit to make of
Leggatt V. ToUerrey, 14 East, 306. But it; and that, after a demand of it had been
if the copy were obtained without order, made, the proper officer might be pun-
it will not, on that account, be rejected, ished for refusing to make it out." A
Ibid. ; Jordan v. Lewis, Id. 395, note (b) ; strong doubt of the legahty of the order
Caddy v. Barlow, 1 M. & Ry. 275. But of 16 Car. II., was also raised in Browne v.
Lord Chief Justice Willes, in Rex v. Bran- Cumming, 10 B. & C. 70.
gam, 1 Leach, Cr. Caa. 32, in the case of ' Morrison v. Kelley, 1 W. Bl. 386.
a prosecution frr robbery, evidently vexa-
CHAP. IV.J PUBLIC DOCUMENTS. 523
regulation of this kind is known to have been expressly made ;
and any limitation of the right to a copy of a judicial record or
paper, when applied for by any person having an interest in it,
would probably be deemed repugnant to the genius of American
institutions.^
§ 472. Where writs, or other papers in a cause, are officially in
the custody of an officer of the court, he may be compelled by a rule
of court, to allow an inspection of them, even though it be to fur-
nish evidence in a civil action against himself. Thus, a rule was
granted against the marshal of the King's Bench prison, in an
action against him for an escape of one arrested upon mesne pro-
cess, to permit the plaintiff's attorney to inspect the writ by which
he was committed to his custody.^
§ 473. In regard to the records of inferior tribunals, the right of
inspection is more limited. As all persons have not necessarily an
interest in them, it is not necessary that they should be open to
the inspection of all, without distinction. The party, therefore,
who wishes to inspect the proceedings of any of those courts,
should first apply to that court, showing that he has some interest
in the document, and that he requires it for a proper purpose.^ If
it should be refused, the court of chancery, upon affidavit of the
fact, may at any time send, by a writ of certiorari, either for
the record itself, or an exemplification. The King's Bench in
England, and the Supreme courts of common law in America,
have the same power by mandamus ;^ and this whether an action
be pending or not.^ .
§ 474. There are other records which partake both of a public and
private character, and are treated as the one or the other, accord-
ing to the relation in which the applicant stands to them. Thus,
the books of a corporation are public with respect to its members,
but private with respect to strangers.^ In regard to its members,
a rule for inspection of the writings of the corporation will be
1 Stone V. Crocker, 24 Pick. 88, per ^ Gresley on Bvid. pp. 115, 116 ; Wil-
Morton, J. The only case, known to the son v. Rogers, 2 Stra. 1242 ; Eex v. Smith,
author, in which tlie English rule was 1 Stra. 126; Rex i7. Tower, 4 M. & S. 162;
acted on, is that of The People v. PoUyon, Herbert v. Ashburner, 1 Wils. 297 ; Rex
2 Caines, 202. in which a copy was moved v. Allgood, 7 T. R. 746 ; Rex v. Sheriff of
for and granted. Chester, 1 Chitty, R. 479.
2 Fox V. Jones, 7 B. & C. 732. 5 Rex v. Lucas, 10 East, 235, 236, per
^ If he has no legal interest in the Lord Ellenborough.
record, the court may refuse the applica- ' Gresley on E-vid. 116.
tion. Powell v. Bradbury, 4 M. 6. & Sc,
641 ; infra, § 5.59
524 LAW OP EVIDENCE, [PAET 111.
granted of course, on their application, where such inspection is
shown to 1)6 necessary, in regard to some particular matter in
dispute, or where the granting of it is necessary, to prevent the
applicant from suffering injury, or to enable him to perform his
duties ; and the inspection will then be granted, only so far as is
shown to be essential to that end.^ But a stranger has no right
to such rule, and it will not be granted, even where he is defend-
ant in a suit brought by the corporation.^ In this class of records
are enumerated parish books,^ transfer books of the Bast India
Company,* public lottery books,^ the books of incorporated banking
companies,^ a bishop's registry of presentations,'' and some others
of the like kind. If an inspection is wanted by a stranger, in a
case not within this rule of the common law, it can only be ob-
tained by a bill for a discovery ; a court of equity permitting a
discovery in some cases, and under some circumstances, where
courts of law will not grant an inspection.^ And an inspection is
granted only where civil rights are depending ; for it is a constant
and invariable rule, that, in criminal cases, the party shall never
be obliged to furnish evidence against himself. '
§ 475. Inspection of the hooka of public officers is subject to the
same restriction, as in the case of corporation books ; and access
to them will not be granted in favor of persons who have no
interest in the books. Thus, an inspection of the books of the
post-office has been refused, upon the application of the plaintiff, in
a qui tarn action against a clerk in the post-office, for interfering in
the election of a member of parliament, because the action did not
relate to any transaction in the post-office, for which alone the
books were kept.^° Upon the same ground, that the subject of
1 Rex V. Merchant Tailors' Co. 2 B. & 7 Mod. 129, b. o. ; Shelling v. Farmer, 1
Ad. 115 ; State of Louisiana, ex rel. Hatch Str. 646.
V. City Bank of New Orleans, Sup. Court, ^ Schiuotti v. Bumstead, 1 Tidd's Pr.
La., March T. 1842; The People v. 694,
Throop, 12 Wend. 183. « Brace v. Ormond, 1 Meriv. 409 ; The
2 Mayor of Southampton v. Greaves, 8 People v. Throop, 12 Wend. 188 ; Union
T. R. 590. The party, in such case, can Bank v. Knapp, 3 Pick 96 ; [McKavlin v.
only give notice to the corporation to pro- Bresslin, 8 Gray, 177] ; Mortimer v. M'Cal-
du:;e its books and papers, as in other Ian, 6 M. & W. 58.
cases between private persons. See, ac- ' Rex v. Bp. of Ely, 8 B. & C. 112 ;
cordhiftly, Burrell v. Nicholson, 3 B. & Finch w. Bp. of Ely, 2 M. & Ry. 127.
Ad. 649; Bank of Utica v. Hilliard, 5 » Gresley on Evid. 116, 117.
Cowen, 419 ; 6 Cowen, 62, s. c. ; Imperial » Tidd's Pr. 593. Under this rule, an
Gas Co. V. Clarke, 7 Bing. 95 ; Rex v. Jus- information, in the nature of a quo war-
tices of Buckingham, 8 B. & C. 375. ranto, is considered as merely a civil pro-
8 Cox V. Copping, 5 Mod. 395; Newell ceeding. Rex v. Babb, 3 T.'R. 582. Seo
V. Simkin, 6 Bing. 565; Jacocks o. Gil- also Rex «. Dr. Purnell, 1 Wils.'239.
liam, 3 Miirph. 47. i" Crew v. Blackburne, cited 1 Wila.
* Geeryif Hopkins, 2 Lord Raym. 851 ; 240; Crew v. Saunders, 2 Str. 1005.
CHAP, IV.] PUBLIC DOCUMENTS. 525
tlie action was collateral to the subject-matter and design of the
books, an inspection of the books of the custom-house has been
refused.^ Such inspections are also sometimes refused on grounds
of public policy, the disclosure sought being considered detrimental
to the public interest. Upon the same principle of an interest in
the books, the tenants of a manor are generally entitled to an
inspection of the court-rolls, wherever their own rights are con-
cerned; but this privilege is not allowed to a stranger.^
§ 476. But, in all cases of public writings, if the disclosure of
their contents would, either in the judgment of the court or of the
chief executive magistrate, or the head of department, in whose
custody or under whose control they may be kept, be injurious to
the public interests, an inspection will not be granted.^
§ 477. The motion for a rule to inspect and take copies of books
and writings, when an action is pending, may be made at any stage
of the cause, and is founded on an affidavit, stating the cir-
cumstances under which the inspection is claimed, and that an
application therefor has been made to the proper quarter, and
refused.*
§ 478. But when na action is pending, the proper course is to
move for a rule to show cause why a mandamus should not issue,
commanding the officer having custody of the books to permit the
applicant to inspect them, and take copies. The application in this
case should state some specific object sought by the inspection,
and be supported by an affidavit, as in the case preceding. If a
rule is made to show cause why an information, in the nature of
a qua warranto, should not be filed, a rule for an inspection will be
granted to the prosecutor, immediately upon the granting of a rule
to show cause. But if a rule be made to show cause why a man-
damus should not be awarded, the rule for an inspection will not
be granted, until the mandamus has been issued and returned.^
§ 479. We proceed now, to consider the mode op proof of public
documents, beginning with those which are nx)t judicial. And
first, of acts of state. It has already been seen, that courts will
jtfdicially take notice of the political constitution, or frame of the
1 Atherfold V. Beard, 2 T. R. 610. * Tidd's Pr. 595, 596. [See lasigi v.
" Rex V. SheUey, 3 T. R. 141 ; Rex v. Brown, 1 Curtis, Ct. Ct. 401 ; infra, §
Allgood, 7 T. R. 746. See Rex v. Hostr 559.]
men of Newcastle, 2 Stra. 1223, note (1), ^ i Tidd's Pr. 596 ; Rex v. Justices of
by Nolan. Surrey, Sayer, R. 144; Eex v. Shelley, 3
8 'Supra, §§ 250, 251, and cases there T. R. 141 ; R.ex v. HoUister, Cas. Temp,
cited Hardw. 245.
526 LAW OP EVIDENCE. [PAET HJ
government of their own country, its essential political agents, or
officers, and its essential ordinary and regular operations. The
great seal of the state and the seals of its judicial tribunals require
no proof.^ Courts also recognize, without other proof than inspec-
tion, the seals of state of other nations, which have been recog-
nized by their own sovereign. The seals, also, of foreign courts
of admiralty, and of notaries-public, are recognized in the like
manner.^ Public statutes, also, need no proof, being supposed to
exist in the memories of all ; but, for certainty of recollection,
reference is had either to a copy from the legislative rolls, or to
the book printed by public authority .^ Acts of state may be
proved by production of the original printed document, from a
press authorized by government.* Proclamations, and other acts
and orders of the executive, of the like character, may be proved
by production of the government gazette, in which they were
authorized to be printed.^ Printed copies of public documents,
transmitted to congress by the President of the United States,
and printed by the printer to congress, are evidence of those docu-
ments.^ And here it may be proper to observe, that, in all cases
of proof by a copy, if the copy has been taken by a machine,
worked by the witness who produces it, it is sufficient.'' The
certificate of the Secretary of State is evidence that a particular
person has been recognized as a foreign minister.^ And the
certificate of a foreign governor, duly authenticated, is evidence of
his own official acts.^
§ 480. Next, as to legislative acts, which consist of statutes,
resolutions, and orders, passed by the legislative body. In regard
to private statutes, resolutions, &c., the only mode of proof, known
to the common law, is either by means of a copy, proved on oath to
have been examined by the roU itself; or, by an exemplification
1 Weamack v. Dearman, 7 Port. 513. eron v. Dowick, 2 Campb. 42 ; Bull. N. P.
2 Supra, §§ 4, 6, 6 ; Story on Confl. of 226 ; Attorney-General v. Theakstone, 8
Laws, § 643 ; Robinson v. Oilman, 7 Shepl. Price, 89. An appointment to a coramis-
299 ; Coit v. Milliken, 1 Denio, 376. A sion in the army cannot be proved by the
protest of a bill of exchange, in a foreign gazette. Rex w. Gardner, 2 Campb. 513 ;
country, is sufilciently proved by the seal Kirwan v. Cockburn, 5 Esp. 233. See also
of the foreign notary. Willes, 550 ; Anon. Rex v. Forsyth, R. & Ry. 274 275
12 Mod. 345; Bayley on Bills, 515 (Phil- « RadcUff v. United Ins. Co. 7 Johns,
lips & Sewall's edit.) ; Story on Bills, §§ 38, per Kent, C. J.
276, 277 ; La Caygas v. Larionda, 4 Mart. ' Simpson v. Thoreton, 2 M. & Rob
288. 433.
8 Bull. N. P. 225. 8 United States v. Benner, 1 Baldw.
* Bex V. Withers, cited 5 T. R. 436; 238.
Watkins v. Holman, 16 Peters, 25. 9 United States v. Mitchell, 3 Wash. 5.
6 Rex V. Holt, 5 T. R. 486 ; Van Om-
CHAP. IV.]
PUBLIC DOCUMENTS.
527
under the great seal. But in most if not all of the United States,
the printed copies of the laws and resolves of the legislature, pub-
lished by its authority, are competent evidence either by statute,
or judicial decision ; and it is suf&cient frimd facie, that the book
purports to have been so printed. ^ It is the invariable course of
the legislatures of the several states, as well as of the United
States, to have the laws and resolutions of each session printed
by authority.^ Confidential persons are selected to compare the
copies with the original rolls, and superintend the printing. The
very object of this provision is to furnish the people with authentic
copies ; and, from their nature, printed copies of this kind, either
of public or private laws, are as much to be depended on, as the
exemplification, verified by an officer who is a keeper of the rec-
ord.^
§ 481. If in a private statute a clause is inserted, that it shall be
taken notice of, as if it were a public act ; this not only dispenses
with the necessity of pleading it specially, but also changes the
mode of proof, by dispensing with the production of an exemplified
or sworn copy.*
^ Young V. Bank of Alexandria, i
Cranch, 388; Biddis v. James, 6 Binn.
321, 326; Rex v. Forsyth, Buss. & By.
275. See infra, § 489. [As to the effect
to be given to the volume termed the
"Revised Statutes of Connecticut," see
Eld V. Gorham, 20 Conn. 8. The testi-
mony of an attorney at law of another
state is not legal evidence of the statute
law of that state, where it affects the mer-
its of the case. Smith v. Potter, 1 Wil-
liams (Vt.), 304. In Massachusetts, it is
provided by statute that " all acts of incor-
poration shall be deemed public acts, and,
as such, may be declared on and given in
evidence, without specially pleading the
same. Rev. Stat. ch. 2, § 3. In Ohio, it
is enacted, that in pleading a private stat-
ute or a right derived therefrom, it shall
be sufficient to refer to such statute by its
title and the day of its passage, and the
court shall thereupon take judicial notice
thereof Rev. Stat, by Curwen (1854),
vol. a, p. 1956.]
^ [ The edition of the Laws and Treaties
of the United States, published by Little
& Brown, is declared to be competent evi-
dence of the several public and private
acts of congress and of the several treaties
therein contained, in all the courts of law
and equity and of maritime jurisdiction,
and in all the tribunals and public offices
of the United States, and of the several
states, without any farther proof or au-
thentication thereof. Stat. 1846, ch. c. §
2; 9 Stats, at Large, p. 76.]
8 Per Tilghman, C. J., 6 Binn. 326.
See also Watkins v. Holman, 16 Peters,
25 ; Holt, C. J., held, that an act, printed
by the king's printers, was always good
evidence to a jury ; though it was not suf-
ficient upon an issue of nul tiel record
Anon. 2 Salk. 566. [The laws revised and
adopted by the territorial legislature of
Michigan, in 1827, were the statutes as
previously printed. It was held, that the
printed book containing the statute is the
best evidence of what the statute actually
was, and that the original record is not to
be received to show that the printed book
is incorrect, or as evidence of the statute,
as adopted and enacted at that time. Es-
pecially will this be so where the error is
not discovered for a long time, and the
statute is treated and considered as the
actual law. Pease v. Peck, 18 How. U. S.
595.]
* Beaumont v. Mountain, 10 Bing. 404.
The contrary seems to have been held in
Brett V. Beales, 1 M. & Malk. 421 ; but
that case was overruled, as to this point,
in Woodward v. Cotton, 1 C. M. & R. 44,
47. [*An act which extends to all per-
sons within the territorial limits defined
is a public statute. Levy v. The State,
6 Ind. 281; and will be judicially noticed
528 LAW OF BVIDENCB. [PART IH.
§ 482. In regard to the journals of either branch of the legisla-
ture, a former remark ^ may be here repeated, equally applicable
to all other public records and documents, namely, that they con-
stitute an exception to the general rule, which requires the pro-
duction of the best evidence, and may be proved by examined
copies. This exception is allowed, because of their nature, as
original public documents, which are not removable at the call
of individuals, and, because, being interesting to many persons,
they might be necessary, as evidence, in different places at the
same time.^ Moreover, these being public records, they would be
recognized as such by the court, upon being produced, without
collateral evidence of their identity or genuineness ; and it is
a general rule, that, whenever the thing to be proved would require
no collateral proof upon its production, it is provable by a copy.^
These journals may also be proved by the copies printed by the
government printer, by authority of the house.*
§ 483. The next class of public writings to be considered, con-
sists of official registers, or books kept by persons in public office,
in which they are required, whether by statute or by the nature
of their office, to write down particular transactions, occurring in
the course of their public duties, and under their personal observa-
tion. These documents, as well as all others of a public nature,
are generally admissible in evidence, notwithstanding their authen-
ticity is not confirmed by those usual and ordinary tests of truth,
the obligation of an oath, and the power of cross-examining the
persons, on whose authority the truth of the documents depends.
The extraordinary degree of confidence, it has been remarked,
which is reposed in such documents, is founded principally upon
the circumstance, that they have been made by authorized and
accredited agents, appointed for the purpose ; but partly also on
the publicity of their subject-matter. Where the particular facts
are inquired into and recorded for the benefit of the public, those
who are empowered to act in making such investigations and
memorials are in fact the agents of all the individuals who com-
pose the state ; and every member of the community may be sup-
without being pleaded or proved. Courts Tr. 683-685 ; Rex v. Ld. George Gordon,
also take judicial notice of the repeal of 2 Doug. 593, and note (3) ; Jones v. Ran-
public laws. State v. O'Connor, 13 La. dall, Loffl;, 383, 428 ; Cowp. 17, s. c.
Ann. 486.1 ^ Rex v. Smith, 1 Stra. 126.
1 Supra, § 91. * Root v. King, 7 Cowen, 613, 636 ;
2 Ld. Melville's ease, 29 Howell's St. Watkins v. Holman, 16 Peters, 25.
CHAP. IV .J PUBLIC DOCUMENTS. 629
posed to be privy to the investigation. On the ground, therefore,
of the credit due to agents so empo-wered, and of the public
nature of tlie facts themselves, such documents are entitled to an
extraordinary degree of confidence ; and it is not necessary that
they should be confirmed and sanctioned by the ordinary tests
of truth. Besides this, it would always be difficult, and often
impossible, to prove facts of a public nature, by means of actual
witnesses upon oath.^
§ 484. These books, therefore, are recognized by law, because
they are required by law to be kept, because the entries in them
are of public interest and notoriety, and because they are made
under the sanction of an oath of office, or at least under that of
official duty. They belong to a particular custody, from which
they are not usually taken but by special authority, granted only
in cases where inspection of the book itself is necessary, for the
purpose of identifying the book, or the handwriting, or of de-
termining some question arising upon the original entry, or of
correcting an error which has been duly ascertained. Books
of this public nature, being themselves evidence, when produced,
their contents may be proved by an immediate copy duly verified.^
Of this description are parish registers ; ^ the books of the Bank
of England, which contain the transfers of public stock ; * the
transfer books of the East India Company ; ^ the rolls of courts
baron ; ^ the books which contain the official proceedings of cor-
porations, and matters respecting their property, if the public at
large is concerned with it ; ^ books of assessment of public rates
and taxes ; ^ vestry books ; ^ bishops' registers, and chapter-house
registers ; ^'^ terriers ; ^ the books of the post-office, and custom-
1 1 Stavi.Bvid. 195; supra, § 128. case, 17 Howell's St. Tr. 810; Moore's
^ Lynoi v. Gierke, 3 Salk. 154, per case. Id. 854; Owings u. Speed, 5 Wheat.
Holt, C. J. ; 2 Doug. 593, 594, note (3). 420.
The handwriting of the recording or at- ' Doe v. Seaton, 2 Ad. & El. 171, 178,
testing officer is, prima facie, presumed per Patteson, J. ; Doe v. Arkwright, Id.
genuine. Bryan v. Wear, 4 Mis. 106. 182 (note), per Denman, C. J. ; Rex v.
" 2 Phil. Evid. 188-186 ; Lewis v. Mar- King, 2 T. K. 234; Ronkendorffj). Taylor,
shall, 5 Peters, 472,475; 1 Stark. Evid. 4 Peters, 349, 360 ; Doe «. Cartwright, Ry.
205. See Childress v. Cutter, 16 Mis. 24. & My. 62.
* Breton v. Cope, Peake's Cas. 30 ; ' Rex v. Martin, 2 Campb. 100. See,
Marsh v. CoUnett, 2 Esp. 655 ; Mortimer as to Church Records, Sawyer v. Baldwin,
V. M'Callan, 6 M. & W. 58. 11 Pick. 494.
" 2 Doug. 593, note (3). i" Arnold v. Bishop of Bath and Wells,
« Bull. N. P. 247 ; Doe v. Askew, 10 5 Bing. 316 ; Coombs v. Coether, 1 M. &
East, 520. Malk. 398.
' Warriner v. Giles, 2 Stra. 954; Id. ^ BuU. N. P. 248; 1 Stark. Evid. 20L
1223, note (1) ; Marriage v. Lawrence, 3 [See infra, § 496.]
B. & Aid. 144, per Abbott, C.J. ; Gibbon's
VOL. T 45
530
LAW OF EVIDENCE.
[PABT in.
house, and registers of' other public offices;^ prison registers;"
enrolment of deeds ;^ the registers of births and of marriages,
made pursuant to the statutes of any of the United States ; *
the registration of vessels in the custom-house ; ^ and the books
of record of the transactions of towns, city councils, and other
municipal bodies.® In short, the rule may be considered as settled,
that every document of a public nature, which there would be an
inconvenience in removing, and which the party has a right to
inspect, may be proved by a duly authenticated copy.'^
§ 485. It is deemed essential to the official charaHer of these
books, that the entries in them be made promptly, or at least
without such long delay as to impair their credibility, and that
they be made by the person whose duty it was to make them, and
in the mode required by law, if any has been prescribed.^ When
1 Bull. N. P. 249 ; Rex v. Fitzgerald,
i. Leach, Cr. Cas. 24 ; Eex v. Rhodes, Id.
29 ; D'Israell v. Jowett, 1 Esp. 427 ; Bar-
ber V. Holmes, 3 Esp. 190; Wallace v.
Cook, 5 Esp. 117; Johnson v. Ward, 6
Esp. 48; Tomkins v. Attor.-Gen. 1 Dow.
404; Rex v. Grimwood, 1 Price, 369;
Henry v. Leigh, 3 Camph. 499; United
States V. Johns, 4 Dall. 412, 415.
2 Salte V. Thomas, 3 B. & P. 188 ; Rex
V. Aikles, 1 Leach, Cr. Cas. 435.
8 Bull. N. P. 229 ; Kinnersley v. Orpe,
1 Doug. 56 ; Hastings v. Blue Hill Tump.
Corp. 9 Pick. 80.
* Milford V. Worcester, 7 Mass. 48;
Commonwealth v. Littlejohn, 15 Mass. 163 ;
Sumner v. Sebec, 3 Greenl. 223 ; Wedge-
wood's case, 8 Greenl. 75 ; Jaoook v. Gil-
liam, 3 Murphy, 47 ; Martin v. Gunby, 2
H. & J. 248; Jackson v. Boneham, 15
Johns. 226; Jackson v. King, 5 Cowen,
237 ; Richmond v. Patterson, 3 Ohio R.
368.
° United States v. Johns, 5 Dall. 415 ;
Colson V. Bonzey, 6 Greenl. 474 ; Hacker
V. Young, 6 N. Hamp. 95 ; Coohdge v. N.
York Firemen's Ins. Co. 14 Johns. 308 ;
Catlett V. Pacific Ins. Co. 1 Wend. 651.
^ Saxton V. Nimms, 14 Mass. 320, 321 ;
Thayer v. Stearns, 1 Pick. 309; Taylor
V. Henry, 2 Pick. 401 ; Denning v. Roome,
6 Wend. 651 ; Dudley v. Grayson, 6 Mon-
roe, 259; Bishop v. Cone, 3 N. Hamp.
513. [The clerk of a city or town is the
proper certifying officer to authenticate
copies of the Totes, ordinances, and by-
law, thereof; and such copies are admis-
sible as prima facie evidence, when pur-
porting to be duly attested, without any
verification of the clerk's signature. Com-
monwealth V. Chase, 6 Gush. 248. See
also People v. JMinck, 7 Smith (N. Y.),
539.]
' Gresley on Evid. 115. In some of
the United States, office-copies are made
admissible by statute. In Georgia, the
courts are expressly empowered to require
the production of the originals, in their
discretion. Hotchk. Dig. p. 590. In
South Carolina, it has been enacted, that
no foreign testimonial, probate, certificate,
&c., under the seal of any court, notary,
or magistrate, shall be received in evi-
dence, unless it shaU appear that the like
evidence from tliis state is receivable in
the courts of the foreign state. Statutes
at Large, vol. 5, p. 45. [See Pittsfield,
&c., P. R. Co. V. Harrison, 16 111. 81;
Raymond v. Longworth, 4 McLean, 481.
Duly authenticated notarial copies of in
struments, the originals of which the
party has not the power to produce, by
reason of the laws of the country where
they were executed, are admissible as
secondary evidence. Bowman v. San-
born, 5 Foster (N. H. ), 87.] [ * The official
record of the town clerk is conclusive as
to the votes of the town, and cannot be
contradicted or explained by oral proof.
The People v. Zeyst, 23 N. Y. App. 140.
But maps and surveys are not evidence in
themselves, unless from having acquired
authority by lapse of time and acquies
cence. Johnston v. Jones, 1 Black, 209.]
8 Doe V. Bray, 8 B. & C. 813 ; Walker
V. Wingfield, 18 Ves. 443. A certificate
that a certain fact appears of record is not
sufficient. The officer must certify a
transcript of the entire record relating to
the matter. Owen v. Boyle, 8 Shepl.
147. And this is sufficient. Farr ».
Swan, 2 Barr. 246.
CHAP. IV.J
PUBLIC DOCUMENTS.
531
the books themselves are produced, they are received as evidence,
without further attestation. But they must be accompanied by
proof that they come from the proper repository?- Where the
proof is by a copy, an examined copy, duly made and sworn to by
any competent witness, is always admissible.^ Whether a copy,
certified by the o.fficer having legal custody of the book or docu-
ment, he not being specially appointed by law to furnish copies,
is admissible, has been doubted ; but though there are decisions
against the admissibility, yet the weight of authority seems to
have established the rule, that a copy given by a public officer,
whose duty it is to keep the original, ought to be received in
evidence.^
1 1 Stark. Evid. 202 ; Atkins v. Hut-
ion, 2 Anstr. 387 ; Armstrong v. Hewett,
4 Price, 216 ; Pulley v. Hilton, 12 Price,
625; Swinnerton v. Marquis of Stafford,
8 Taunt. 91 ; Baillie v. Jackson, 17 Eng.
L. & Eq. R. 131. [United Stiites v. Cas-
tro, 24 How. 346.] See supra, § 142, as
to the nature of the repository required.
2 [Whitehouse!;.Bickford,9Eoster,471.]
* United States v. Percheman, 7 Pe-
ters, 51, 85 [A. D. 1883], per totam
Curiam ; Oakes v. Hill, 14 Pick. 442, 448 ;
Abbott on Shipping, p. 63, note 1 (Story's
edit.) ; United States v. Johns, 4 Ball.
412, 415; Judiee v. Chretien, 3 Rob.
Louis. R. 15 ; Wells v. Compton, Id. 171 ;
[Warner v. Hardy, 6 Md. 525.] In ac-
cordance with the principle of this rule
is the statute of the United States of
March 27, 1804 (3 LL. U. S. 621, ch. 409
(56|, Bioren's edit); [2 U.S. Stats, at
La ..e (L. & B.'s edition), 298] ; by which
it is enacted, tiiat " all records and exem-
plifications of office-books, which are or
may be kept in any public office of any
state, not appertaining to a court, shall be
proved or admitted in any other court or
office in any other state, by the attesta-.
tion of the keeper of the said records or
books, and the seal of his office thereunto
annexed, if tliere be a seal, together with
a certificate of the presiding justice of the
court of the county or district, as the case
may be, in which such office is or may be
kept ; or of the governor, the secretary of
state, the chancellor, or the keeper of the
great seal of the state, that the said attest-
ation is in due form, and by the proper
officer ; and tlie said certificate, if given
by the presiding justice of a court, shall
he further authenticated by the clerk or
prothonotary of the said court, who shall
certifj-, under his hand and the seal of his
office, that the said presiding justice is
duly commissioned and qualified; or if
the said certificate be given by the gov-
ernor, the secretary of state, the chan-
cellor, or keeper of the great seal, it shall
be under the great seal of the state in
which the said certificate is made. And
the said records and exemplifications,
authenticated as aforesaid, shall have
such faith and credit given to them in
every court and office within the United
States, as they have by law or usage in
the courts or offices of the state from
whence the same are or shall be taken."
By another section this provision is ex-
tended to the records and pubUc books,
&c., of all the territories of the United
States. The earlier American author-
ities, opposed to the rule in the text, are
in accordance with the English rule.
2 Phil. Evid. 130-134. Where the law
does not require or authorize an instru-
ment or matter to be recorded, a copy of
the record of it is not admissible in evi-
dence. Fitler v. Shotwell, 7 WattS &
Serg. 14; Brown v. Hicks, 1 Pike, 282;
Haile v. Palmer, 5 Mis. 408. [See also
Runka. Ten Eyck, 4 Zabr. (N.J.) 756;
State V. Cake, lb. 516.] [»Copies of deeds
from the authorized registry, proof of
the originals as well as of the registry.
Curry v. Raymond, 28 Perm. St. 144. See
Morton v. Webster, 2 Allen, 352. But
where the party is entitled to the custody
of the original deed, it must be produced,
or its absence accounted for. Williams v.
Wetherbee, 2 Aikens, 329 ; Ord r. Mc-
Kee, 5 Cal. 515. And where the deed is
found duly engrossed upon the registry,
a copy is good evidence of the deed, al-
though the record is not certified by the
proper recording officer. Booge v. Par-
sons, 2 Vt. 456. But the certificate of a
recording officer that a record does not
exist cannot be received as evidence.
Stoner i'. Ellis, 6 Ind. 152 ; Cross v Mill
Co. 17 Id. 54.'
f>32 LAW OF EVIDENCE. [PAET IH.
§ 486. Ill regard to foreign laws, the established doctrine now
is, that no court takes judicial notice of the laws of a foreign
country, but they must be proved as facts. And the better opinion
seems to be, that this proof must be made to the court, rather than
to the jury. " For," observes Mr. Justice Story, " all matters of
law are properly referable to the court, and the ol^'ect of the proof
of foreign laws is to enable the court to instruct the jury what, in
point of law, is the result of the foreign law to be applied to the
matters in controversy before them. The court are, therefore, to
decide what is the proper evidence of the laws of a foreign coun-
try ; and when evidence is given of those laws, the court are to
jxidge of their applicability, when proved, to the case in hand." ^
[ * We have ventured to question the soundness of the proposition,
that proof of foreign law is in all cases addressed to the court.^]
§ 487. " Generally speaking, authenticated copies of the written
laws, or of other public instruments of a foreign government, are
expected to be produced. For it is not to be presumed, that any
civilized nation will refuse to give such copies, duly authenticated,
which are usual and necessary, for the purpose of administering
justice in other countries. It cannot be presumed, that an appli-
cation to a foreign government to authenticate its own edict or law
will 'ie refused ; but the fact of such a refusal must, if relied on, be
proved. But if such refusal is proved, then inferior proofs may
be admissible.^ Where our own government has promulgated
1 Story on Confl. of Laws, § 638, and a general decree of the National Assem-
jases there cited ; [Pickard ;;. Bailey, 6 My of France, on the 4th of August, 1789.
Foster, 152.] Being asked whether he had read that
2 [ * Eedf. Ed. Story, Confl . of Laws, decree in the books of the law, in the
§ 688a ; Wilde, J., in Holman v. King, 7 course of his study of the law, he replied
Met. 384, 388. In a recent English case, that he had ; and that it was part of the
M'Cormick v. Garnett, 5 DeG. M. & G. history of the law, which he learnt when
278, it was decided, that a question of studying the law. He was then asked as
foreign law, being one of fact, must be de- to the contents of that decree ; and the
cided in each cause upon evidence addijced admissibility of this question was the point
in that particular cause, and not by a de- in judgment. On this point. Lord Den-
cision, or upon evidence adduced, in an- man, C. J., said : " The objection to the
other cause, although similarly circum- question, in whatever mode put, is, that it
stanced.] ' asks the witness to give the contents of a
2 Church V. Hubbart, 2 Cranch, 237, written instrument, the decree of 1789,
238. It is now settled in England, upon contrary to a general rule, that such evi-
great consideration, that a foreign written dence cannot be given without the produc-
law may be proved by parol evidence of a tion of the instrument, or accounting for
witness learned in the law of that country ; it. In my opinion, however, that ques-
without first attempting to obtain a copy tion is within another general rule, that
of the law itself. Baron de Bode v. Ee- the opinion of skilful and scientific persons
ginam, 10 Jur. 217. In this case, a learned is to be received on subjects with which
French advocate stated, on his cross- they are conversant. I think that credit
examination, that the feudal law, which must be given to the opinion of legal men,
hid prevailed in Alsace, was abolished by who are bound to know the law of the
CHAP. IV. ]
PUBLIC DOCUMENTS.
533
any foreign law, or ordinance of a public nature, as suthentic,
that may, of itself, be sufficient evidence of the actual existence
and terms of such lav or ordinance." ^
§ 488. " In general, foreign laws are required to be verified by
the sanction of an oath, unless they can be verified by some high
authority, such as the law respects, not less than it respects the
oath of an individual.^ The usual mode of authenticating foreign
laws (as it is of authenticating foreign judgments), is by an
country in which they practice, and that
we must talce from them the account of it,
whether it be the unwritten law, wliich
they may collect from practice, or the
written laws, wliich they are also bound
to know. I apprehend that the evidence
sought for would not set forth generally
the recollection of the witness of the con-
tents of the instrument, but his opinion as
to the effect of the particular law. The
instrument itself might frequently mis-
lead, and it might be necessary that the
knowledge of the practitioner should be
called in, to show that the sense in which
the instrument would be naturally con-
strued by a foreigner is not its true legal
sense. It appears to me that the distinc-
tion between this decree and treaties, ma-
norial customs, or acts of common council,
is, that, with regard to them, there is no
profession of men whose duty it is to make
them their study, and that there is, there-
fore, no person to whom we could prop-
erly resort, as skilfully conversant with
them. The cases which have been re-
ferred to excite much less doubt in my
mind than that which I know to be enter-
tained by one of my learned brothers, to
whose opinion we are in the habit of pay-
ing more respect than to many of those
cases which are most familiarly quoted in
Westminster Hall." He then cited and
commented on the cases of Boehtlinck v.
Schneider, 3 Esp. 58 ; Clegg v. Levy, 3
Camp. 166 ; Miller v. Heinrick, 4 Campb.
155; Lacon v. Higgins, 3 Stark. 178;
f!en. Picton's case, 3 Howell, St. Tr. 491 ;
and Middleton v. Janverin, 2 Hagg. Cons.
R. 437 ; and concluded as follows : " But
I look to the importance of this question
ill a more extensive point of view. Books
(if authority must certainly be resorted to,
npon questions of foreign law. Pothier,
for instance, states the law of France, and
lie states it as arising out of an ordonnance
made in such a year, and he gives his
account of that ordonnance ; and are we
to say that that would not be taken as evi-
dence of the law of France, because itis
an account of the contents of a written
document? Suppose a question to arise
suddeidy in one of our courts upon the
state of the English law, could a state-
ment in Blackstone's Commentaries, as to
what the law is on the subject, and when
it was altered to what it now is, be re-
fused ? And it seems to me that the cir-
cumstance of the question having refe-
rence to the period at which a statute
passed,»makes no difference. I attach the
same credit to the witness giving his ac-
count of a branch of the French law, as I
should to a book which he might accredit
as a book of authority upon the law of
France. I find no authority directly op-
posed to the admissibility of this evidence,
except some expressions much stronger
than the cases warranted or required ; and
1 find some decisions which go the whole
length in favor of its admissibility ; for I
see no distinction betjfeen absolute proof
by a direct copy of the law itself, and the
evidence wliich is now tendered ; and I
think that the general principle to which I
have referred establishes the admissibiUty
of it." See 10 Jur. 218, 219 ; 8 Ad. &
El. 208, s. c. WUliams, J., and Coleridge,
J., concurred in this opinion. Patteson,
J., dissentiente. See also Cocks v. Purday,
2 C. & K. 269.
1 Story on Confl. of Laws, § 640 ; Tal-
bot V. Seeman, 1 Cranch, 38. The acts
of state of a foreign government can only
be proved by copies of such acts, properly
authenticated. Kichardson v. Anderson,
1 Campb. 65 ; note (a).
2 Church V. Hubbart, 2 Cranch, 237 ;
Brackett v. Norton, 4 Conn. 517 ; Hemp-
stead 0. Eeed, 6 Conn. 480; Dyer v.
Smith, 12 Conn. 384. But the court may
proceed on its own knowledge of foreign
laws, without the aid of other proof; and
its judgment will not be reversed for that
cause, unless it should appear that the
court was mistaken as to those laws. The
State V. Rood, 12 Verm. 396. [Proof of
the written law of a foreign country may
be made by some copy of the law which
the witness can swear was recognized as
authoritative in the foreign country, and
which was in force at the time. Spauld-
ing V. Vincent, 24 Vt. 501.1
46*
534
LAW OF EVIDENCE.
[part in.
exemplification of a copy, under the great seal of a state ; or by a
3opy proved to be a true copy, by a witness wlio has examined and
compared it with the original ; or by the certificate of an officer
properly authorized by law to give the copy ; which certificate
must itself also be duly authenticated.^ But foreign unwritten
laws, customs, and usages may be proved, and indeed must ordi-
narily be proved, by parol evidence. The usual course is to make
such proof by the testimony of competent witnesses, instructed in
the laws, customs, and usages, under oatli.^ Sometimes, however,
certificates of persons in high authority have been allowed as evi-
dence, without other proof." ^
1 Church V. Hubbart, 2 Cranch, 238 ;
Packard v. Hill, 2 Wend. 411 ; Lincoln v.
Battelle, 6 Wend. 475.
2 Church V. Hubbart, 2 Cranch, 237 ;
Dalrymple v. Dalrymple, 2 Hagg. App'x,
pp. 15-144 ; Brush v. Wilkins, 4 Johns. Ch.
520 ; Mostyn v. Fabrigas, Cowp. 174. It
is not necessary that the witness should
be of the legal profession. Regina v.
Dent, 1 Car. & Kirw. 97. But whether a
woman is admissible as peritus, qucere. Re-
gina V. Povey, 14 Eng. Law & Eq. R. 549 ;
17 Jur. 119. And see Wilcocks v. Phil-
lips, Wallace, Jr. 47. In Michigan, the
unwritten law of foreign states may be
proved by books of reports of cases ad-
judged in their courts. Rev. Stat. 1846,
oh. 102, § 79. So, in Connecticut; Rev.
Stat. 1849, tit. 1, § 132. And in Massachu-
setts; Rev. Stat. 1886, ch. 94, § 60. And
in Maine; Rev. Stet. 1840, ch. 133, § 48.
And in Alabama ; Inge v. Murphy, 10 Ala.
R. 885. [Although a point of foreign law
has been proved in England, and acted
apon in reported cases, the court will not
act upon such decisions without the law
being proved in each case as it arises. M'-
Cormickt;. Garnett, 27 Eng.Law &Eq.339.]
3 Story on Confl. of Laws, §§ 641,
342; Id. § 629-640. In re Dormay, 3
Hagg. Eccl. R. 767, 769 ; Rex v. Pieton,
30 Howell's State Trials, 515-673; The
Diana, 1 Dods. 95, 101, 102. A copy of
the code of laws of a foreign nation,
printed by order of the foreign govern-
ment, it seems, is not admissible evidence
of those laws ; h\, t they must be proved,
as stated in the text. Chanoine v. Fowler,
3 Wend. 173; Hill v. Packard, 5 Wend.
375, 384, 389. But see United States a.
Glass Ware, 4 Law Reporter, 36, where
Betts, J., held the contrary ; the print-
ed book having been purchased of the
Queen's printer. See also Farmers and
Mechanics' Bank v. Ward, Id. 87, S. P.
In regard to the effect of foreign laws, it is
generally agreed that they are to govern
everywhere, so far as may concern the
validity and interpretation of all contracts
made under or with respect to them;
where the contract is not contrary to the
laws or poUcy of the country in which
the remedy is sought. An exception has
been admitted in the case of foreign rewe-
nue laws ; of which, it is said, the courts
will not take notice, and which will not
be allowed to invalidate a contract made
for the express purpose of violating them.
This exception has obtained place upon
the supposed authority of Lord Hard-
wicke, in Boucher v. Lawson, Cas. Temp.
Hardw. 89, 194, and of Lord Mansfield, in
Planchfe V. Fletcher, 1 Doug. 252. But in
the former of these cases, which was that
of a shipment of gold in Portugal, to be
delivered in London, though the exporta-
tion of gold was forbidden by the laws of
Portugal, the judgment was right on two
grounds ; first, because the foreign law
was contrary to the policy and interest of
England, where bullion was very much
needed at that time ; and, secondly, be-
cause the contract was to be performed in
England ; and the rule is, that the law of
the place of performance is to govern. The
latter of these cases was an action on a
policy of insurance, on a voyage to Nantz,
with liberty to touch at Ostend ; the ves-
sel being a Swedish bottom, and the voy-
age being plainly intended to introduce
into France English goods, on which du-
ties were high, as Dutch goods, on which
much lower duties were charged. Here,
too, the French law of high countervail-
ing duties was contrary to British interest
and policy; and, moreover, the French
ministry were understood to connive at
this course of trade, the supply of such
goods being necessary for French con-
sumption. Both these cases, therefore,
may well stand on the ground of the ad-
mitted qualification of the general rule;
CHAP. IV.J PUBLIC DOCUMENTS. 535
[* § 488a. The (Question, how far the court can act upon its own
knowledge of the law of a foreign state, seems not entirely well
settled. It would seem upon principle, that, as this is matter
of fact, and, in case of dispute, to be ultimately determined by the
jury, or the triers of fact, that the personal knowledge of the judge
could not be regarded as proof, except as to those matters of which
the court will take judicial notice, or assume by way of presump-
tion.^ In many cases it has been said, that, in the absence of all
proof, the court will presume the foreign law is the same as that
of the forum.2 This rule may be a safe one to act upon within
reasonable limits, as for instance, as to contracts relating to per-
sonal estate, and especially as to commercial matters ; and also,
that, where the common law is known to prevail, it is construed
the same as where the action is tried. In a recent case ^ it is said,
" In the absence of all proof, courts assume certain general prin-
ciples of law, as existing in all Christian states ; as, that contracts
are of binding obligation, and that personal injuries are actionable;
that flagrant violations of the fundamental principles of moral
obligation, such as theft and murder, are regarded as crimes ; and
that to accuse one of these crimes, thus exposing him to prose-
cution, ignominy, and disgrace, is an actionable slander." But no
such presumption will apply to statute law, or where it would ope-
rate to produce a forfeiture, by rendering a contract void.* The
courts take judicial notice of differences of time in different longi-
tudes.6]
§ 489. The relations of the- United States to each other, in regard
to all matters not surrendered to the general government by the
and the brief general observations of those b. 2, ch. 5, § 64 ; Id. ch. 6, § 72 ; Pothier
learned judges, if correctly reported, may on Assurance, n. 58 ; Marshall on Ins.
be regarded as obiter dicta. But it should pp. 59-61, 2d edit. ; 1 Cliitty on Comm. &
be remembered, that the language of the Manuf. pp. 83, 84 ; 3 Kent, Comm. 266,
learned judges seems to import nothing 267 ; Story, Confl. Laws, § 257 ; Story on
more than that courts will not take notice Bills, § 136 ; Story on Agency, §§ 197,
of foreign revenue laws ; and such seems 343, note, 2d edit.
to have been the view of Lord Denman, ^ [ * Wheeler v. Webster, 1 E. D.
in the recent case of Spence ». Chodwick, Smith, 1. *
11 Jur. 874, where he said : '■ We are not ^ Eape v. Heaton, 9 Wis. 828 ; Green v.
hoimd to take notice of the revenue laws of Eugely, 23 Texas, 539 ; Cox v. Morrow,
a foreign country ; but if we are informed 14 Ark. 603 ; Warren v. Lusk, 16 Mo. 102 ;
of them, that is another case." And see Sharp v. Sharp, 85 Ala. 574.
10 Ad. & El; 517, N. s. The exception » Langdon v. Young, 33 Vt. 136. See
alluded to was tacitly disapproved by also Wright v. Delafield, 23 Barb. 498;
Lord Kenyon, in Waymell v. Reed, 5 Thompson v. Monrow, 2 Cal. 99.
T. R. 599, and is explicitly condemned, ■• Cutler v. Wright, 22 N.Y. App. 472;
as not founded in legal or moral principle, Smith v. Whitaker, 23 111. 367.
bv the best modern jurists. See Vattel. ^ Curtis v. March, 4 Jur. n. s. 1112,1
536 LAW OP EVIDENCE. [PART lU,
national constitution, are those of foreign states in close friendship,
each being sovereign and independent.^ Upon strict principles
of evidence, therefore, the laws and public documents of one
state can be proved in the courts of another, only as other for-
eign laws. And, accordingly, in sonae of the states, such proof
has been required.^ But the courts of other states, and the Su-
preme Court of the United States, being of opinion that the
connection, intercourse, and constitutional ties which bind together
these several states, require some relaxation of the strictness of
this rule, have accordingly held that a printed volume purport-
ing on the face of it to contain the laws of a sister state, is admis-
sible as primd facie evidence, to prove the statute laws of that
state.^ The act of congress* respecting the exemplification of
public office-books, is not understood to exclude any other modes
of authentication, which the courts may deem it proper to admit.^
And in regard to the laws of the states, congress has provided,^
under the power vested for that purpose by the constitution, that
the acts of the legislatures of the several states shall be authen-
ticated, by having the seal of their respective states affixed
thereto ; btit this method, as in the case of public books just men-
tioned, is not regarded as exclusive of any other which the states
may respectively adopt.'' Under this statute, it is held, that the
1 Infra, § 504. Massachusetts, Rev. Stat. 1836, ch. 94,
2 Brackett v. Norton, 4^onn. 517, 521 ; § 59 ; New York, Stat. 1848, ch. 312 ;
Hempstead v. Reed, 6 Conn. 480 ; Pack- Florida, Thomps. Dig. p. 342 ; Kean v.
ard V. Hill, 2 Wend. 411. Rice, 12 S. & R. 203 ; North Carolina,
8 Young 0. Bank of Alexandria, 4 Rev. Stat. 1837, ch. 44, § 4. The com-
Cranch, 384, 388 ; Thomson v. Musser, mon law of a sister state may be shown
1 Dall. 458, 463; Biddis v. James, 6 Binn. by the books of reports of adjudged cases,
321, 327 ; Muller v. Morris, 2 Barr, R, 85 ; accredited in that state. Inge v. Murphy,
Raynham v. Canton, 3 Pick, 293, 296; 10 Ala. R. 885. [A book purporting to
Kean v. Rice, 12 S. & R. 203 ; The State contain the laws of another state is not
V. Stade, 1 D. Chipm. 303; Comparet v. admissible in evidence in Texas, unless
' Jernegan, 5 Blackf. 375 ; Taylor v. Bank such book also purport to have been pub-
of Illinois, 7 Monroe, 585 ; Taylor u. Bank lished by the authority of such other
of Alexandria, 5 Leigh, 471 ; Clarke v. state. Martin v. Payne, 11 Texas, 292.
Bank of Mississippi, 6 Eng. 516 ; Allen v. And if a volume of laws contains on Its
Watson, 2 Hill, 319 ; Hale v. Rost, Pen- title-page the words " By authority," it
nington, R. 591 ; [Emery v. Berry, 8 Fos- thereby purports to have been published
ter, 473J^ But see Van Buskirk v. Mu- by the authority of the state. Merrifield
lock, 3 Harrison, R. 185, contra. In some o. Robbins, 8 Gray, 150'.]
states, the rule stated in the text has been * Stat. March 27, 1804, cited supra,
expressly enacted. See Connecticut, Rev. § 485.
Stat. 1849, tit. 1, § 131; Michigan, Rev. ^ See cases cited sapra, note (2).
Stat. 1846, ch. 102, § 78 ; Mississippi, ^ Stat. May 26, 1790, 1 LL. U. S. ch.
Hutchins. Dig. 1848, ch. 60, art. 10; Mis- 38 [11], p. 102 (Bioren's edit.) ; [1 U.S.
ttturi, Rev. Stat. 1845, ch. 59, §§ 4, 5, 6 ; Stat, at Large (L. & B.'s edition), 122.1
Wisconsin, Rev. Stat. 1849, ch. 98, § 54; ' Lothrop o. Blake, 3 Barr, 483.
I Haine, Rev. Stat. 1840, ch. 133, § 47 ;
CHAP. IV.] PUBUC DOCUMENTS. 537
seal of the state is a sufficient authentication, without the at-
testation of any officer, or any other proof; and it will he
presumed primd facie, that the seal was affixed by the proper
officer.^
§ 490. The reciprocal relations between the national government
and the several states, comprising the United States, are not foreign,
but domestic. Hence, the courts of the United States take judi-
cial notice of all the public laws of the respective states, whenever
they are called upon to consider and apply them. And, in like
manner, the courts of the several states take judicial notice of all
public acts of congress, including those which relate exclusively
to the District of Columbia, without any formal proof.^ But pri-
vate statutes must be proved in the ordinary mode.^
§ 491. We are next to consider the admissibility and effect of the
pvhlic documents we have been speaking of, as instruments of evi-
dence. And here it may be generally observed, that to render
such documents, when properly authenticated, admissible in evi-
dence, their contents must be pertinent to the issue. It is also
necessary that the document be made by the person whose duty it
was to make it, and that the matter it contains be such as belonged
to his province, or came within his official cognizance and observa-
tion. Documents having these requisites are, in general, admissi-
ble to prove, either primd facie or conclusively, the facts they
recite. Thus, where certain ^m6Kc statutes recited that great out-
rages had been committed in a certain part of the country, and a
public ^roeZajwaiioji was issued, with similar recitals, and offering
a reward for the discovery and conviction of the perpetrators,
these were held admissible and sufficient evidence of the existence
of those outrages, to support the averments to that effect, in an
information for a libel on the government in relation to^them.^
So, a recital of a state of war, in the preamble of a public statute,
is good evidence of its existence, and it will be taken notice
of without proof; and this, whether, the nation be or be not
a party to the wai .'' So, also, legislative resolutions are evidence
^ United States v. Amedy, 11 Wheat, v. Vattier, 5 Peters, 308 ; Young v. Bank
892; United States v. Johns, 4 Dall. 412; of Alexandria, 4 Cranch, 384, 888; Canal
The State v. Carr, 5 N. Hamp. 367. [It Co. v. Railroad Co. 4 G. & J. 1, 63.
must be the seal of the state ; the seal of ' Leland v, Wilkinson, 6 Peters, 317.
the Secretary of State is not sufficient, as * Rex v. Sutton, 4 M. & S. 532.
it cannot be considered the seal of the " Rex v. De Berenger, 3 M. & S. 67,
state. Sisk v. Woodruff, 15 111. 15.1 69. See also Brazen Nose College v. Bp,
' Owens V. Hull, 9 Peters. 607 ; Hinde of Salisbury, 4 Taunt. 831.
638 LAW OP EVIDENCE. [PAET UI.
of the public matters which they recite.^ The jowmals, also, of
either house, are the proper evidence of the action of that house,
upon all matters before it.^ The diplomatic correspondence, com-
municated by the President to congress, is sufficient evidence of
the acts of foreign governments and functionaries therein recited.^
A foreign declaration of war is sufficient proof of the day when the
state of war commenced.* Certified copies, under the hand and
seal of the Secretary of State, of the letters of a public agent resi-
dent abroad, and of the official order of a foreign colonial governor
concerning the sale and disposal of a cargo of merchandise, have
been held admissible evidence of those transactions.^ How far
diplomatic correspondence may go to establish the facts recited
therein does not clearly appear ; but it is agreed to be generally
admissible in all cases ; and to be sufficient evidence, whenever
the facts recited come in collaterally, or by way of introductory
averment, and are not the principal point in issue before the
jury.8
§ 492. The government gazette is admissible and sufficient evi-
dence of such acts of the executive, or of the government, as are
usually announced to the public through that channel, such as
proclamations,' and the like. For besides the motives of self-
interest and official duty which bind the publisher to accuracy, it
is to be remembered, that intentionally to publish any thing as
emanating from public authority, with knowledge that it did not so
emanate, would be a misdemeanor.^ But in regard to other acts
of public functionaries, having no relation to the affairs of govern
ment, the gazette is not admissible evidence.^
§ 493. In regard to official registers, we have already stated^" the
principles on which these books are entitled to credit ; to which it
is only necessary to add, that where the books possess all the
requisites there mentioned, they are admissible, as competent evi-
1 Kex u.rrancklin, 17 Howell's St. Tr. ^ Bingham v. Cabot, 8 Dall. 19, 23, 39-
637. 41.
2 Jones V, Randall, Cowp. 17; Boot v. ^ Eadoliff w. United Ins. Co. 7 Johns
King, 7 Cowen, 613 ; Spangler v. Jacoby, 51, per Kent, C. J.
14 111. 299. ' Rex v. Holt, 5 T. R. 436, 443; At
' Eadcliff V. United Ins. Co. 7 Johns. torney-General v. Theakstone, 8 Price,
38, 51 ; Talbot v. Seeman, 1 Cranch, 1, 89 ; supra, § 480, and cases cited in note ;'
87, S8. Gen. Picton's case, 30 Howell's St. Tr.
* Thelluson v. CosUng, 4 Esp. 266; 493.
Bradley v. Arthur, 4 B. & C. 292, 304. » 2 Phil. Evid. 108.
See also Foster, Disc. 1, ch. 2, § 12, that » Rex v. Holt, 5 T. R. 443, per Ld
public notoriety is sufficient evidence of Kenyon.
the existence of war. w Supra, §§ 483, 484, 485.
CHAP. IT.] PUBLIC DOCUMENTS. 639
dence of the facts they contain. But it is to be remembered that
they arc not, in general, evidence of any facts not required to be
recorded in them,^ and which did not occur in the presence of the
registering officer. Thus, a parish register is evidence only of
the time of the marriage, and of its celebration de facto ; for these
are the only facts necessarily within the knowledge of the party
making the entry .^ So, a register of baptism, taken by itself, is
evidence only of that fact ; though if the child were proved aliunde
to have then been very young, it might aiford presumptive evidence
that it was born in the same parish.^ Neither is the mention of
the child's age in the register of christenings, proof of the day
of his birth, to support a plea of infancy.* In all these and simi-
lar cases, the register is no proof of the identity of the parties
tliere named, with the parties in controversy ; but the fact of
identity must be established by other evidence.* It is also neces-
sary, in all these cases, that the register be one which the law
requires should be kept, and that it be kept in the manner required
by law.^ Thus, also, the registers kept at the navy office are
admissible, to prove the death of a sailor, and the time when it
occurred ; '' as well as to show to what ship he belonged, and the
amount of wages due to him.^ The prison calendar is evidence to
prove the date and fact of the commitment and discharge of a
1 Fitler v._ Shotwell, 7 S. & E. 14; and obscure ; and, for aught appearing to
Brown v. Hicks, 1 Pike, 232; Haile v. the contrary, tlie register was rejected
Palmer, 5 Mis. 403 ; swpra, § 485. only as not competent to prove the eye of
2 Doe V. Barnes, 1 M. & Rob. 886, 389. the person. It is also said, on the author-
As to the kind of books which may be ity of Leader u. Barry, 1 Bsp. 353, that a
read as registers of marriage, see 2 Phil, copy of a register of a foreign chapel is
Evid. 112, 113, 114. not evidence to prove a marriage. But
' Rex V. North Petherton, 5 B. & C. this point, also, is very briefly reported, in
508 ; Clark v. Trinity Church, 5 Watts & three lines ; and it does not appear, but
Serg. 266., that the ground of the rejection of the
* Burghart v. Angerstein, 6 C. & P. register was that it was not authorized or
690, See also Rex v. Clapham, 4 C. & required to be kept, by the laws of
P. 29 ; Huet v. Le Mesurier, 1 Cox, B. France, where the marriage was cele-
275 ; Childress v. Cutter, 16 Mis. 24. brated, namely, in the Swedish ajnbassa-
5 Birt V. Barlow, 1 Doug. 170 ; Bain v. dor's chapel, in Paris. And such, prob-
Mason, 1 C. & P. 202, and note ; "Wedge- ably enough, was the fact. Subsequently
wood's case, 8 Greenl. 75. an examined copy of a register of mar-
<■ See tlie cases cited supra, § 484, note riages in Barbadoes has been admitted.
(10) ; Newham v. Raithby, 1 Phillim. 315. Cood v. Cood, 1 Curt. 755. Li the United
Therefore the books of the Meet and of States, an authenticated copy of a foreign
a Wesleyan chapel have been rejected, register, legally kept, is admissible in evi-
Eeed v. Passer, 1 Esp. 213 ; Whittacfc v. dence. Kingston v. Lesley, 10 S. & B.
Waters, 4 C. & B. 375. It is said that a 383, 389.
copy ot a register of baptism, kept in the ' Wallace v. Cook, 5 Esp. 117 ; Barber
island of Guernsey, is not admissible ; for v. Holmes, 3 Esp. 190.
which Huet v. Le Mesurier, 1 Cox, 275, is ^ Rex v. Fitzgerald, 1 Leach, Or. Cu
cited. But the report of that case is short 24; Rex v. Rhodes, Id. 29.
540 LAW OP jevidence. [pakt in.
prisoner.^ The books of assessment of public taxes are admissi-
ble to prove the assessment of the taxes upon the individuals, and
for the property therein mentioned.^ The books of municipal
corporations are evidence of the elections of their officers, and of
other corporate acts there recorded.^ The books of private corpo-
rations are admissible for similar purposes, between members of
the corporation ; for as between them the books are of the nature
of public books.* And all the members of a company are charge-
able with knowledge of the entries made on their books by their
agent, in the course of his business, and with the true meaning
of those entries, as understood by him.^ But the books cannot, in
genera], be adduced by the corporation, in support of its own
claims against a stranger.^
§ 494. The registry of a ship is not of the nature of the public
or official registers now under consideration, the entry not being
of any transaction, of which the public officer who makes the
entry is conusant. Nor is it a document required by the law of
nations, as expressive of the ship's national character. The regis-
try acts are considered as institutions purely local and municipal,
for purposes of public policy. The register, therefore, is not of
itself evidence of property, except so far as it is confirmed by some
auxiliary circumstance, showing that it was made by the authority
or assent of the person named in it, and who is sought to be
charged as owner. Without such connecting proof, the register
has been held not to be even primd facie evidence, to charge a
person as owner ; and even with such proof, it is not conclusive
evidence of ownersWp ; for an equitable title in one person may
well consist with the documentary title at the custom-house in
another. Where the question of ownership is merely incidental,
the register alone has been deemed sufficient primd facie evidence.
But in favor of the person claiming as owner it is no evidence at
all, being nothing more than his own declaration.^
1 Salte V. Thomas, 3 B. & P. 188; ^ Allen w. Colt, 6 Hill (N. Y.), Eej.
Kex V. Aides, 1 Leach, Cr. Cas. 435. 318.
2 Doe V. Seaton, 2 Ad. & El. 178 ; Doe " London v. Lynn, 1 H. Bl. 214, note
V. Arkwright, Id. 182, n. ; Rex v. King, 2 (c) ; Commonwealth v. Woelper, 3 S. &
T. R. 234; Ronkendorff v. Taylor, 4 R. 29; Highland Turnpike Co. v. Mc
Peters, 349, 360. Such books are also Kean, 10 Johns. 154.
prima facie evidence of domicile. Doe v. '3 Kent, Comm. 149, 150 ; Weston v.
Cartwright, Ry. & M. 62 ; 1 C. & P. 218. Penniraan, 1 Mason, 306, 318, per Story,
8 Rex V. Martin, 2 Campb. 100. J. ; Bixby v. The Franklin Ins. Co. 8
* Marriage v. Lawrence, 3 B. & Aid. Pick. 86 ; Colson v. Bonzey, 6 Greenl.
144; Gibbon's case, 17 Howell's St. Tr. 474; Abbott on Shipping, pp. 63-65.
810. (Story's edit, and notes) ; Tinkler u. Wfl
CHAP. IV.] PUBLIC DOCUMENTS. 541
§ 495. A shif's log-book, where it is required by law to be kept,
vs an official register, so far as regards the transactions required
by law to be entered in it ; but no further. Thus, the act of con-
gress^ provides, that if any seaman who has signed the shipping
articles, shall absent himself from the ship without leave, an entry
of that fact shall be made in the log-book, and the seaman will be
liable to be deemed guilty of desertion. But of this fact the log-
book, though an indispensable document, in making out the proof
of desertion, in order to incur a forfeiture of wages, is never con-
clusive, but only primd facie evidence, open to explanation, and to
rebutting testimony. Indeed, it is in no sense per se evidence,
except in the cases provided for by statute ; and therefore it cannot
be received in evidence, in favor of the persons concerned in
making it, or others, except by force of a statute making it so ;
though it may be used against any persons to whom it may be
brought home, as concerned either in writing or directing what
should be contained therein.^
§ 496. To entitle a book to the character of an official register,
it is not necessary that it be required by an express statute to be
kept; nor that the nature of the office should render the book
indispensable. It is sufficient, that it be directed hy the proper
authority to he kept, and that it be kept according to such direc-
tions. Thus, a book kept by the secretary of bankrupts, by order
of the Lord Chancellor, was held admissible evidence of the allow-
ance of a certificate of bankruptcy.^ Terriers seem to be admitted,
partly on the same principle ; as well as upon the ground, that
they are admissions by persons who stood in privity with the
parties, between whom they are sought to be used.*
§ 497. Under this head may be mentioned hooks and chronicles
of public history, as partaking in some degree of the nature of
public documents, and being entitled on the same principles to a
great degree of credit. Any approved public and general history,
pole, 14 East, 226 ; Mclver u. Humble, 16 "W. Rob. R. 303, 311. [The Hercules,
East, 169 ; Eraser v. Hopkins, 2 Taunt. Sprague's Decisions, 534.]
5; Jones v. Pitcher, 8 Stewart & Porter, ^ Henry v. Leigh, 3 Campb. 499, 501.
U. 135. * By the ecclesiastical canons, an in-
^ Stat. 1790, c. 29, § 5; [1 IT. S. Stat, quiry is directed to be made, from time to
at Large (L. & B.'s edit.), 133.] time, of the temporal rights of the cler-
^ Abbott on Shipping, p. 468, note (1), gyman in every parish, ami to be returned.
(Story's edit.) ; Orne v. Townsend, 4 into the registry of the bishop. This re-
Mason, 544; Cloutman «. Tunison, 1 Sum- turn is denominated a terrier. Cowel,
ner, 373 ; United- States v. Gibort, 2 Int. verb. Tiarar, scil. catuloyas teirarum.
Sumner, 19, 78 ; The Sociedade Eeliz, 1 Burrill, Law Diet. verb. Terrier
■vox,. I 46
542
LAW OP EVIDENCE.
[past m.
therefore, is admissible to prove ancient facts of a public nature,
and the general usages, and customs of the country.^ But in
regard to matters not of a public and general nature, such as the
custom of a particular town, a descent, the nature of a particu-
lar abbey, the boundaries of a county, and the like, they are
not admissible.^
§ 498. In regard to certificates given it/ persons in official station,
the genera] rule is, that the law never allows a certificate of a
mere mattei of fact, not coupled with any matter of law, to be
admitted as evidence. ^ If the person was bound to record the
fact, then the proper evidence is a copy of the record, duly authen-
ticated. But as to matters which he was not bound to record, his
certificate, being extra-official, is merely the statement of a private
person, and will therefore be rejected.* So, where an officer's
1 Bull. N. P. 248, 249 ; Morris v.
Ilarmer, 7 Peters, 554 ; Case of Warren
Hastings, referred to in 30 Howell's St.
Tr. 492; Phil. & Am. on Evid. p. 606;
Neal V. Fry, cited 1 Salk. 281; Ld.
Bridgewater's case, cited Skin. 15. Tlie
statements of the clironiclers, Stow and
Sir W. Dugdale, were held inadmissible
as evidence of the fact, that a person took
Ills seat by special summons to parlia-
ment in the reign of Henry VIII. The
Vaux Peerage case, 5 Clark & Fin. 538.
In Iowa, books of history, science, and
art, and published maps and charts, made
by persons indifferent between the parties,
are presumptive evidence of facts of gen-
eral interest. Code of ^1851, § 2492.
[ * We have often had occasion to advert
to the want of symmetry in the law, in
regard to the admission of books of art
and science to be read before the court
and jury, in order to establish the laws or
rules of that particular art or profession.
Kedf on Wills, Part 1, § 15, pi. 17, 18,
19, pp. 146, 147. The rule seems well
settled, that such books are not to be read
before llie jury, either as evidence or ar-
gument. Commonwealth v. Wilson, 1
Gray, 337; Washburn v. Cuddihy, 8
Gray, 430; Ashworth v. Kittridge, 12
Cusli. 193. But courts often manifest the
consciousness of the want of principle
upon which the rule excluding such
books rests, by quoting the very same
books in banc which tliey were deciding
were rightfully rejected at the trial, and
thus declaring a rule of law, pertaining to
the veterinary art or profession, or any
other subject, upon the authority of these
eamo books, which, in the same breatli.
they declare to be so unreliable as not to
be evidence, either of the laws or the facts
involved in the same identical point upon
which the court decided solely upon the
evidence of these same books. This goes
upon the ground, that reading or liearing
read such books will be entirely safe and
proper while sitting in banc, but not
equally so to the same judges while sit-
ting with a jm'y to determine, among
others, the very same questions then
before the^full court. This seems to give
some countenance to the complaints of
the learned author of the " Jurisprudence
of Insanity," in his last edition, upon this
point, of the admissibility of medical
books to prove tlie laws of the medical
profession. Washburn v. Cuddihy, 8
Gray, 430. It is suggested in a late case,
Tutton V. Drake, 5 H. & N. 647, that the
time of the sun's rising and setting cannot
be proved by the almanac. But it would
seem that all courts should take judicial
notice of facts of such uniformity and
general notoriety. Ante, § 488u.J
^ Stainer v. Droitwich, 1 Salk. 281;
Skin. 623, s. c; Piercy's case, Tho.
Jones, 164 ; Evans v. Getting, 6 C. & P.
686,.and note. [*Lighthouse journals re-
ceived as evidence. The Maria l^iis
Dorias, 32 Law J. Adm. 163.J
3 Willes, 649, 550, per WiUes, Ld.
Ch. J.
« Oakes v. Hill, 14 Pick. 442, 448;
Wolfe V. Washburn, 6 Cowen, 261 ; Jack-
son V. Miller, Id. 751 ; Governor v. Mo-
Affee, 2 Dev. 15, 18; United States v.
Buforp, 3 Peters, 12, 29; [Childress o
Cutter, 16 Miss. 24.]
CHAP. IV.]
PUBLIC DOCUMENTS.
543
certificate is made evidence of certain facts, he cannot extend its
effect to other facts, by stating those also in the certificate ; but
such parts of the certificate will be suppressed.^ The same rules
are applied to an officer's return.^
1 Johnson v. Hooker, 1 Dal. 406, 407 ;
Goremor v. Bell, 3 Murph. 331; Gov-
ernor V. Jeffl-eys, 1 Hawks. 297 ; Stewart
V. Alison, 6 S. & K, 324, 329 ; Newman v.
Doe, 4 How. 522; [Brown v. The Inde-
pendence, Crabbe, 54.]
2 Cator V. Stokes, 1 M. & S. 599 ; Ar-
nold V. Tourtelot, 13 Pick. 172. A no-
tary's certificate that no note of a certain
description was protested by him is inad-
missible. Exchange, &c. Co. of N. Orleans
II. Boyce, 3 Bob. Louis. B. 807 ; [Bicknell
i>. Hill, 33 Maine, 297.] [* The return ot
public oflScers appointed to investigate a
matter of fact has sometimes been held to
be evidence, even between other parties.
Hayward v. Bath, 38 N. H. 179. But, in
general, such matters are regarded so far
in the nature of private transactions, as
not to be evidence, except between the
immediate parties, and for the particular
purpose of the inquiry. Wheeler v.
Framingham, 12 Gush. 387.]
544 LAW OP EVIDENCE. [PART lU.
CHAPTER V.
RECORDS AND JUDICIAL WRITINGS.
(* § 499. Records and judicial writings.
500. Statutes are records ; but the term is commonly used with reterence to
judicial proceedings.
501. Exemplification of record required where its existence is in issue.
502. Record itself may be used in same court ; otherwise, a copy.
503. Courts take notice of seal of other courts, &c., in same jurisdiction.
504. How records of several states authenticated.
605. This not exclusive of all others, and not applicable to all courts.
506. The judge must certify the clerk, and that the attestation is in due form.
507. An ofiice copy is one made by the proper officer.
.508. An examined copy is one proved by a witness comparing it with t! e
original.
509. Lost records proved like other lost writings.
510. Verdicts, evidence in some oases, if final.
511. Decree in chancery proved by copy of decree enrolled, &c.
612. Answers in chancery, how proved.
513. Records of inferior courts of record proved the same as those of superior
courts.
514. Foreign judgments proved by examined copy, or copy under seal of state.
514a. The mode of proof and construction of foreign documents.
518. In case of private inquisition, the commission as well as the return must be
put in evidence.
516. Depositions in chancery not read without proof of bill and answer.
517. Depositions taken by special commission read in connection with commis-
sion and interrogatories.
518. Wills not admitted in evidence except in connection with probate.
519.«^ Letters of administration received in evidence.
520. Examination of prisoners proved by magistrate, or by signature of prisoni
521. Writs proved by production, or by copy after return.
622. Admissibility and effect of records.
623. Conclusive as to parties and privies, but not as to strangers.
524. But this must extend to both parties equally.
625. Proceedings in rem are an exception to this rule.
626. So also where the proceedings affect matters of a public nature.
527. Or where used as inducement, or to prove the fiict of a judgment.
527a. So the judgment may be evidence of an admission by the party.
628. Conclusiveness restricted to matters directly in issue.
529. But to become conclusive, the suit must proceed to judgment.
530. And the judgment must be upon the merits.
531. Judgment equally conclusive whether specially pleaded or not.
%
CHAP. T. j BECORDS AND JUDICIAL WRITINGS. 545
§ 531o. Further discussion of the question of estoppels.
632. The identity of the transactions must be shown by other proof.
533. Kecovery, witliout satisfaction, no bar to another action against auothei
party.
634. Judgment conclusive as to all facts involved in the issue.
636. SuflSlcient if real parties are the same, although not nominally.
536. Privity extends to all persons represented by the parties.
537. Judgments in criminal actions not evidence in civil, and vice versa.
538. Record always evidence of the fact of judgment rendered.
539. But not of the facts upon which founded, unless between same parties.
539a. In contracts joint and several, judgment in one form no bar to suit in the
other.
540. Foreign judgments ; difierent aspects ; jurisdiction must appear.
541. Such judgments in rem always conclusive.
642. Proceedings by foreign attachment somewhat of the same nature.
643. This same effect attaches to the property wherever found.
644. This has been claimed as to foreign decrees affecting capacity and status cA
persons.
545. Judgments in regard to marriage and divorce binding everywhere.
646. The effect of foreign judgments in personam.
546a. They are now held conclusive in the EngUsh courts.
647. The American courts do not seem to give them this effect.
648. The effect of judgments in the different states.
648a. An interlocutory judgment in one state not enforceable in another state.
549. It makes no difference as to foreign judgments, whether they are between
citizens or foreigners.
550. Decrees of probate courts conclusive, if within their jurisdiction.
651. Decrees in chancery conclusive ; effect of statements in the pleadings.
552. Depositions in chancery, how far evidence.
553. Generally admissible when subject-matter of suits the same, and the party
had opportunity to cross-examine.
554. Not always indispensable to the admission of depositions in equity that the
witness be cross-examined.
555. Depositions evidence of custom against strangers; secondary evidence
where witness cannot be produced.
556. Judicial inquisitions prima fade evidence.]
§ 499. The next class of written evidence consists of Records
and Judicial Writings. And here, also, as in the case of Public
Documents, we shall consider, first, the mode of proving them ;
and secondly, their admissihiliiy and effect.
§ 600. The case of statutes, which are records, has already been
mentioned under the head of legislative acts, to which they seem
more properly to belong, the term record being generally taken in
the more restricted sense, with reference to judicial tribunals.
It will only be observed, in this place, that, though the courts will
take notice of aU public statutes without proof, yet private statutes,
must be ' proved, like any other legislative documents, namely, by
46»
546 LAW OF EVIDENCE. [PAHT III.
an exemplification under the great seal, or by an examined copy,
or by a copy printed by authority.^
§ 501. As to the proofs of records, this is done either by mere
production of the records, without more, or by a copy.^ Copies
of record are, (1.) exemplifications ; (2.) copies made by an au-
thorized officer ; (3.) sworn copies. Exemplifications are either,
first, under the great seal ; or, secondly, under the seal of the
particular court where the record remains.^ When a record is the
gist of the issue, if it is not in the same court, it should be proved
by an exemplification.* By the course of the common law, where
an exemplification under the great seal is requisite, the record
may be removed into the court of chancery, by a certiorari, for that
is the centre of all the courts, and there the great seal is kept.
But in the United States, the great seal being usually if not always
kept by the Secretary of State, a different course prevails ; and an
exemplified copy, under the seal of the court, is usually admitted,
even upon an issue of nul tiel record, as sufficient evidence.*
When the record is not the gist of the issue, the last-mentioned
kind of exemplification is always sufficient proof of the record at
common law.^
§ 502. The record itself is produced only when the cause is in
the same court, whose record it is; or, when it is the subject
of proceedings in a supei'ior court. And in the latter case,
although it may by the common law be obtained through the court
of chancery, yet a certiorari may also be issued from a superior
court of common law, to an inferior tribunal, for the same purpose,
whenever the tenor only of the record will suffice; for in such
1 [See supra, §§ 480, 481.] also Pepoon v. Jenkins, 2 Johns. Cas.
2 [Writing done with a pencil is not 118; Golem. & Cain, Cas. 136, s. c. In
admissible in public records, nor on pa- some of the states, copies of record of
pers drawn to be used in legal proceed- the courts of the same state, attested
ings which must become public records, by the clerk, have, either by immemo-
Meserve v. Hicks, 4 Foster, 295.] rial usage, or by early statutes, been
^ Bull. N. P. 227, 228. An exemplifl- received as sufficient in all cases. Vance
cation under the great seal is said to be of v. Reardon, 2 Nott & McCord, 299 ; Ladd
itself a record of the greatest validity. 1 v. Blunt, 4 Mass. 402. Whether the seal
Gilb. Evid. by LoSt, p. 19, Bull. N. P. 226. of the court to such copies is necessary,
Nothing but a record can be exemplified in Massachusetts, qucere ; a,ni see Commoa-
in this manner. 3 Inst. 173. wealth v. Phillips, 11 Pick. 30. [In Com-
* [The rule allowing a copy of a rec- monwe.tlth v. Downing, 4 Gray, 29, 30, it
ord to be used in evidence is founded on is decided that a copy of a record of a
convenience ; and when the original rec- justice of the peace need not bear a seal ;
ord itself is produced, it is the liighest the court saying, "it need not bear a
evidence, and is admissible. Gray v. seal, nor is it the practice to affix one." ]
Davis, 27 Conn. 447.] « 1 Gilb. Evid. 26 ; [TiUotson v. War
6 Vail V. Smith, 4 Cowen, 71. See ner, 3 Gray, 674, 577.]
CHAP. V.J EECORDS AND JUDICIAL WRITINGS. 5'17
cases nothing is returned but the tenor, that is, a literal transcript
of the record, under the seal of the court ; and this is sufficient to
countervail the plea of nul tiel record?- Where the record is put in
issue in a superior court of concurrent jurisdiction and authority,
it is proved by an exemplification out of chancery, being obtained
and brought thither by a certiorari issued out of chancery, and
transmitted thence by mittimus?
§ 503. In proving a record by a copy under seal, it is to be
remembered, that the courts recognize without proof the seal of
state, and the seals of the superior courts of justice, and of all
courts, established by public statutes.^ And by parity of reason it
would seem, that no extraneous proof ought to be required of the
seal of any department of state, or public office established by law,
and required or known to have a seal.* And here it may be
observed, that copies of records and judicial proceedings, under
seal, are deemed of higher credit than sworn copies, as having
passed under a more exact critical examination.^
§ 504. In regard to the several states composing the United
States, it has already been seen, that though they are sovereign
and independent, in all things not surrendered to the national
government by the constitution, and, therefore, on general princi-
ples, are liable to be treated by each other in all other respects
as foreign states, yet their mutual relations are rather those of
domestic independence, than of foreign alienation.^ It is accord-
ingly provided in the constitution, that " full faith and credit
' Woodcraft v. Kinaston, 2 Atk. 317, within the province of the jury. And see
318 ; 1 Tidd's Pr. 398 ; Butcher & Aid- Collins v. Matthews, 5 East, 473. But in
worth's case, Cro. El. 821. Where a New York, the question of fact, in every
domestic record is put in issue by the case, is now, by statute, referred to the
plea, the question is tried by the court, jury. Troter v. Mills, 6 Wend. 512; 2
notwithstanding it is a question of fact. Kev. Stat. 507, § 4 (3d edit.).
And the judgment of a court of record of ^ 1 Tidd's Pr. 398.
a sister state in the Union is considered, ^ Olive v. Guin, 2 Sid. 145, 146, per
tor this purpose, as a domestic judgment. Witherington, C. B. ; 1 Gilb. Evid. 19
Hall V. Williams, 6 Pick. 227 ; Carter v. 12 Vin. Abr. 132, 133, tit. Evid. A. b. 69
Wilson, 1 Dev. & Bat. 362. [So is the Delafield v. Hand, 3 Johns. 310, 314.
judgment of a circuit court of the United Den. v. Vreelandt, 2 Halst. 555. The
I'fates considered a domestic judgment, seals of counties Palatine and of the
Williams v. Wilkes, 14 Penn. State R. ecclesiastical courts are judicially known,
?28.] But if it is a foreign record, the on the same general principle. See also,
issue is tried by the jury. The State v. as to probate courts, Chase v. Hathaway,
Ibham, 3 Hawks, 185; Adams v. Betz, 1 14 Mass. 222; Judge, &c. v. Briggs, 3 N.
Watts, 425; Baldwin v. Hale, 17 Johns. Hamp. 309.
272. The reason is, that in the former * Supra, § 6.
case the judges can themselves have an ^2 Phil. Evid. 130 ; Bull. N. P. 227.
inspection of the very record. But in the " Mills v. Duryee, 7 Cranch, 481 ;
latter, it can only be proved by a copy, Hampton v. MeConnel, 3 Wheat. 284 ;
the veracity of which is a mere tact, supra, § 489.
548 LA>V OP EVIDENCE. [PART III.
shall be given, in each state, to the public acts, records, and judi-
cial proceedings of every other state. And the congress may,
by general laws, prescribe the manner in which such acts, records,
and proceedings shall be proved, and the effect thereof." ^ Under
this provision.it has been enacted, that "the records and judicial
proceedings of the courts of any state shall be proved or admitted,
in any other court within the United States, by the attestation of
the clerk and the seal of the court annexed, if there be a seal,
together with a certificate of the judge, cliief justice, or presiding
magistrate, as the case may be, that the said attestation is in due
form. And the said records and judicial proceedings, authenti-
cated as aforesaid, shall have such faith and credit given to them,
in every court within the United States, as they have by law or
usage in the courts of the state, from whence said records are
or shall be taken." ^ By a subsequent act, these provisions are
extended to tlie courts of all territories, subject to the jurisdiction
of the United States.^
§ 505. It seems to be generally agreed, that this method of
authentication, as in the case of public documents before men-
tioned, is not exclusive of any other, which the states may think
proper to adopt.* It has also been held, that these acts of con-
gress do not extend to judgments in criminal cases, so as to render
a witness incompetent in one state, who has been convicted of an
infamous crime in another.^ The judicial proceedings referred
to in these acts are also generally understood to be the proceed-
ings of courts of general jurisdiction, and not those which are
merely of municipal authority ; for it is required that the copy of
the record shall be certified by the clerk of the court, and that
there shall also be a certificate of the judge, chief justice, or
presiding magistrate, that the attestation of the clerk is in due
form. This, it is said, is founded on the supposition that the
court, whose proceedings are to be thus authenticated, is so con
stituted as to admit of such officers ; the law having wisely left
1 Const. 0. S. Art. iv. § 1. The State v. Stade, 1 D. Chipm. 303 ;
2 Stat. U. S. May 26, 1790, 2 LL. U. Eaynham v. Canton, 3 Pick. 293 ; Biddis
S. ch. 38 [11], p. 102 (Bioren's edit.) ; 1 v. James, 6 Binn. 321 ; ex parte Povall,
tr. S. Stat, at Large (L. & B.'s edit.), 3 Leigh's R. 816 ; Pepoon v. Jenkins,
122.] 2 Johns. Cas. 119; Ellmore v. Mills,
s Stat. U. S. March 27, 1804, 3 LL. 1 Hayw. 359; supra, § 489; Key. Stat.
U. S. ch. 409 [56], p. 621 (Bioren's edit.) ; Mass. ch. 94, §§ 57, 59, 60, 61.
'2 U. S. Stat, at Large (L. & B.'s edit.), ^ Commonwealth v. Green, 17 Mass,
18.] 515 ; mpra, § 376, and cases there cited.
« Kean v. Rice, 12 S. & R. 203, 208 ;
i
CHAP, v.] EECORDS AND JUDICIAL WRITINGS. 549
the records of magistrates, who may be vested with limited judi-
cial authority, varying in its objects and extent in every state, to
be governed by the laws of the state, into which they may be
introduced for the purpose of being carried into effect.^ Accord-
ingly it has been held, that the judgments of justices of the peace
are not within the meaning of these constitutional and statutory
provisions.^ But the proceedings of courts of chancery, and of
probate, as well as of the courts of common law, may be proved
in the manner directed by the statute.^
§ 506. Under these provisions it has been held, that the attesta-
tion of the copy must be according to the form used iu the state,
from which the record comes ; and that it must be certified to be
so, by the presiding judge of the same court, the certificate of the
clei'k to that effect being insufficient.* Nor will it suffice for
the judge simply to certify that the person who attests the copy
is the clerk of the court, and that the signature is in his hand-
writing.^ The seal of the court must be annexed to the record
with the certificate of the clerk, and not to the certificate of the
judge.® If the court, whose record is certified,, has no seal, this
fact should appear, either in the certificate of the clerk, or in that
of the judge.'' And if the court itself is extinct, but its records
aud jurisdiction have been transferred by law to another court,
it seems that the clerk and presiding judge of the latter tribunal
lire competent to make the requisite attestations.^ If the copy
produced purports to be a record, and not a mere transcript of
minutes from the docket, and the clerk certifies "that the fore-
going is truly taken from the record of the proceedings " of the
' Warren u. Flagg, 2 Pick. 450, per son v. Rannels, 6 Martin, n. s. 621;
Parker, C. J. Ripple v. Ripple, 1 Ravvle, 386 ; Craig o.
2 Warren v. Plagg, 2 Pick. 448; Rob- Brown, 1 Peters, C. C. R. 352.
inson r. Preseott, 4 N. Plamp. 450 ; Mahu- * Dnimmond v. Magrauder, 9 Cranch,
rin V. Biekford, 6 N. Hamp. 567; Silver 122; Craig v. Brown, 1 Pet. C. C. R.352.
Lake Bank v. Harding, 5 Ohio R. 545 ; Tlie judge's certificate is tiie only compe-
Thomas v. Robinson, 3 Wend. 267, In tent evidence of this fact. Smith «. Blagge,
Connecticut and Vermont, it is held, that if 1 Johns. Cas. 238. And it is conclusive,
the justice is bound by law to keep a rec- Ferguson v. Harwood, 7 Cranch, 408.
ord of his proceedings, tliey are within ^ Craig v. Brown, 1 Pet. C. C. R. 852.
the meaning of the act of congress. Bis- [It should also state that the attestation of
sell V. Edwards, 5 Day, 363 ; Starkweather the clerk is in due form. Shown v. Barr,
V. Loorais, 2 Verm. 573 ; Blodget v. Jor- 11 Ired. 296.]
dan, 6 Veni.. 580 ; [Brown v. Edson, 23 " Turner v. Waddington, 3 Wash. 126.
Vt. 485.] See ace. Scott v. Cleaveland, And being thus aflBxed, and certified by
3 Monroe, 62. the clerk, it proves itself. Dunlap v.
8 Scott V. Blanchard, 8 Martin, n. a. Waldo, 6 N. Hamp. 450.
803 ; Hunt v. Lyle, 8 Yerg. 142; Barbour ' Craig v. Brown, 1 Pet. C. C. R. 352;
1). Watts, 2 A. K. Marsh. 290, 293; Bal- Kirkland v. Smith, 2 Martin, N. s. 497.
four V. Chew, 5 Martin, n. s. 517 ; John * Thomas v. Tanner, 6 Monroe, 52.
550 LAW OP EVIDENCE. [PAET III.
court, and this attestation is certified . to be in due form of law,
by the presiding judge, it will be presumed that the paper is a full
copy of the entire record, and will' be deemed sufficient.^ It has
also been held, that it must appear from the judge's certificate,
that at the time of certifying he is the presiding judge of that
court ; a certificate that he is " the judge that presided " at the
time of the trial, or that he is " the senior judge of tlie courts of
law " in the state, being deemed insufficient.^ The clerk also who
certifies the record must be the clerk himself of the same court,
or of its successor, as above mentioned ; the certificate of his
under clerk, in liis absence, or of the clerk of any other tribunal,
office, or body, being held incompetent for this purpose.^
§ 507. An office copy of a record is a copy authenticated by an
officer intrusted for that purpose ; and it is admitted in evidence
upon the credit of the officer without proof that it has been actually
examined.* The rule on this subject is, that an office copy, in
the same court, and in the same cause, is equivalent to the record ;
but in another court, or in another cause in the same court, the
copy must be proved.^ But the latter part of this rule is applied
only to copies, made out by an officer having no other authority to
make them, than the mere order of the particular court, made for
the convenience of suitors ; for if it is made his duty by law to
furnish copies, they are admitted in all courts under the same
jurisdiction. And we have already seen, that in the United
States an officer having the legal custody of public records, is, ex
officio, competent to certify copies of their contents.^
1 Ferguson v. Harwood, 7 Oranoh, 408 ; not sufficient, even when the judge certi-
Bdmiston v. Schwartz, 1& S. & E. 135; ties tliat it is in due form. Morris ».
Goodman v. James, 2 Rob. Louis. 297. Patcliin, 24 N. Y. App. 394.1
2 Stephenson v. Bannister, 3 Bibb, 369; 4 2 Pliil. Erid. 131 ; Bull. N. P. 229.
Kirkland v. Smith, 2 Martin, n. s. 497 ; ^ Denn v. Fulford, 2 Burr. 1179, per
[Settle V. AUson, 8 Geo. 201.] Ld. Mansfield. Whether, upon ti-ial at
^ Attestation by an under clerk is in- law of an issue out of chancery, office
sufficient. Samson v. Overton, 4 Bibb, copies of depositions in the same cause in
409. So, by late cleric not now in office, chancery are admissible, has been doubt-
Donohoo u. Brannon, 1 Overton, 328. So, ed; but the better opinion is, that tliey
by clerk of the council, in Maryland, are admissible. Highfield w. Pealce, 1 M.
Schnertzell ti. Young, 3 H. & McHen. & Malk. 109(1827); Studdy ;,•. Sanders,
502. See further, Conkling's I'ractice, 2 D. & Ry. 347 ; Hennell v. Lyon, 1 B. &
p. 256; 1 Paine & Duer's Practice, 480, Aid. 142; contra, Burnand c. Nerot, 1 0.
481. [The authentication of the record of & P. 578 (1824).
a judgment rendered in another state is " Supra, § 485. But his certificate of
not impaired by the addition of a super- the substance or purport of the record is
fluous certificate, if it is duly accredited inadmissible. McGuire v. Sayward, 9
by the other certificates required bylaw. Shepl. 230. [* Whenever the original is
Young V. Chandler, 13 Bellows, 252.] evidence in itself, as a public record or
[ * The certificate of the deputy clerk is document, its contents may be proved by
CHAP, v.] RECORDS AND JUDICIAL WRITINGS 551
§ 508. The proof of records, by an examined copy, is by pro-
ducing a witness who has compared the copy with the original,
or with wliat the officer of the court or any other person read, as
the contents of the record. It is not necessary for tlie persons
examining to exchange papers, and read them alternately both
ways.^ But it should appear that the record, from which the
copy was taken, was found in the proper place of deposit, or in
the liands of tlie officer, in whose custody the records of the court
are kept. And this cannot be shown by any light, reflected from
the record itself, which may have been improperly placed where
it was found. Nothing can be borrowed ex viseeribus Judicii, untU
the original is proved to have come from the proper court.^ And
the record itself must have been finally completed, before the copy
is admissible in evidence. The minutes from which the judgment
is made up, and even a judgment in paper, signed by the master,
are not proper evidence of the record.^
§ 509. If the record is lost, and is ancient, its existence and
contents may sometimes be presumed ; * but whether it be ancient
or recent, after proof of the loss, its contents may be proved, like
any other document, by any secondary evidence, where the case
does not, from its nature, disclose the existence of other and better
evidence.^
an examined copy. Keed v. Lamb, 6 Jur. order for that entry, or by a general
N. s. 828. The same is true of the regis- order, or by a general and recognized
try of marriages kept in duplicate by the usage and practice, which presupposes
East India Company in London, the mar- such an order. Kead v. Sutton, 2 Cush
riages being solemnized in India. Eat- 115, 123 ; Sayles v. Briggs, 4 Met. 421,
cUifK. Ratcliflf,.5 Jur. N. s. 714.] 424; Tillotson v. Warner, 3 Gray, 574,
1 Eeid V. Margison, 1 Campb. 469; 577. "Where it is the practice of the clerks
Gyles V. Hill, Id. 471, n. ; Fyson v. Kemp, to extend the judgment of the courts from
6 C. & P. 71 ; Rolf V. Dart, 2 Taunt. 52; the minutes and papers on file, the record
Hill V. Packard, 5 Wend. 387 ; Lynde v. thus extended is deemed by the court the
Judd, 3 Day, 499. original record. Willard v. Harvey, 4
" Adamthwaite v. Synge, 1 Stark. R. Foster, 344.1
183 ; [Woods v. Banks, 14 N. Hamp. 101.] * Bull. N. P. 228 ; Greene v. Proude, 1
8 Bull. N. P. 228 ; Rex v. Smith, 8 B. Mod. 117, per Lord Hale.
& C. 341 ; Godefroy v. Jay, 3 C. & P. ^ See supra, § 84, note (2), and cases
192 ; Lee v. Meecock, 5 Esp. 177 ; Rex v. there cited. See also Adams v. Betz, 1
Bellamy, Ry. & M. 171 ; Porter v. Coo- Watts, 425, 428 ; Stockbridge v. West
per, 6 C. & P. 354. But the minutes of a Stockbridge, 12 Mass. 400 ; Donaldson v.
judgment in the House of Lords are the Winter, 1 Miller, E. 137 ; Newoorab v.
judgment itself, which it is not the prac- Drummond, 4 Leigh, 57; Bull. N. P.
tice to draw up in form. Jones v. Ean- 228 ; Knight v. Dauler, Hard. 323 ; Anon.
dall, Cowp. 17. [The clerk's docket is 1 Salk. 284, cited per Holt, C. J. ; Gore v.
the record until the record is fully ex- Elwell, 9 Shepl. 442. [A paper, certified
tended, and the same rules of presumed by a justice of the peace to be a copy of a
verity apply to it as to the record. Every record of a case before him is admissible
entry is a statement of the act of the in evidence of such proceedings, although
court, and must be presumed to be made made by him after the Iof" of the original,
by its direction, either by a particular and pending a trial in which he had testi-
552 LAW OF EVIDENCE. [PAET III.
§ 510. A verdict is sometimes admissible in evidence, to prove
the finding of some matter of reputation, or custom, or particular
right. But here, though it is the verdict, and not the judgment,
■which is the material thing to be shown, yet the rule is, that,
where the verdict was returned to a court having power to set
it aside, the verdict is not admissible, without producing a copy
of the judgment rendered upon it ; for it may be that the judg-
ment was arrested, or that a new trial was granted. But this
rule does not hold in the case of a verdict upon an issue out
of chancery, because it is not usual to enter up judgment in such
cases. 1 Neither does it apply where the object of the evidence is
merely to establish the fact that the verdict was given, without
regard to the facts found by the jury, or to the subsequent pro-
ceedings in tlie cause.^ And where, after verdict in ejectment,
the defendant paid the plaintiff's costs, and yielded up the posses-
sion to him, the proof of these facts, and of the verdict, has been
held sufficient to satisfy the rule, without proof of a judgment. *
§ 511. A decree in chancery may be proved by an exemplifica-
tion, or by a sworn copy, or by a decretal order in paper, with
proof of the bill and answer.* And if the bill and answer are
recited in the order, that has been held suf&cient, without other
proof of them.^ But though a former decree be recited in a sub-
sequent decree, this recital is not proper evidence of the former.®
The general rule is, that, where a party intends to avail himself
of a decree, as an adjudication upon the subject-matter, and not
merely to prove collaterally that the decree was made, he must
fled to its contents. Tillotson v. Warner, a copy of the rerdict is received without
3 Gray, 574, 577. The contents of a proof of the judgment; the latter being
complaint and warrant, in a criminal case, presumed, until the contrary is shown,
lost after being returned into court, may Deloah v. Worke, 3 Hawks, 36. See also
be proved by secondary evidence ; and Evans v. Thomas, 2 Stra. 833 ; Dayrell v.
witnesses to prove its contents may state Bridge, Id. 1264 ; Thurston v. Slatford, 1
the substance thereof without giving the Salk. 284. If the docket is lost before
exact words. Commonwealth v. Eoark, the record is made up, it will be consid-
8 Cush. 210, 212. See also Simpson v. ered as a loss of the record. Prudeu v.
Norton, 45 Maine, 281 ; Hall u. Manches- Alden, 22 Pick. 184.
ter, 40 N. H. 410.1 ^ Barlow v. Dupuy, 1 Martin, n. s.
1 Bull. N. P. 234 ; Pitton v. Walter, 1 442.
Stra. 162 ; Pisher v. Kitchingman, Willes, ^ gchaeffer v. Kreitzer, 6 Binn. 430.
367; Ayrey v. Davenport, 2 New Rep. * Trowell v. Castle, 1 Keb. 21, con-
474 ; Donaldson v. Jude, 2 Bibb, 60. firmed by Bailey, B,. in Blower v. Ilollis,
Hence it is not necessary, in New York, 1 Cromp. & Mees. 396 ; 4 Com. Dig. P7,
to produce a copy of the judgment upon tit. Evidence, C. I ; Gresley on Evid. p.
a verdict given in a justice's court, the 109.
justice not having power to set it aside. ^ Bull. N. P. 244 ; 1 Keb. 21.
Felter v. Mulliner, 2 Johns. 181. In ^ Winans v. Dunham, 5 Wend, 47 ;
North Carolina, owing to an early loose- Wilson v. Conine, 2 Johns. 280.
uess of practice in making up the record.
'CHAP. V.J RECORDS AND JUDICIAL WEITINGS. 553
show the proceedings upon ■which the decree was founded. " The
whole record," says Chief Baron Comyns, " which concerns the
matter in question, ought to be produced." ^ But where the decree
is offered merely for proof of the res ipsa, namely, the fact of the
decree, here, as in the case of verdicts, no proof of any other
proceeding is required.^ The same rules apply to sentences in the
admiralty, and to judgments in courts baron, and other inferior
courts.^
§ 612. The proof of an answer in chancery may, in civil cases,
be made by an examined copy.* Eegularly, the answer cannot
be given in evidence without proof of the bill also, if it can be had.^
But in general, proof of the decree is not necessary, if the answer
is to be used merely as the party's admission under oath, or for
the purpose of contradicting him as a witness, or to charge him
upon an indictment for perjury. The absence of the bill, in such
cases, goes only to the effect and value of the evidence, and not
to its admissibility.^ In an indictment for perjury in an answer,
it is considered necessary to produce the original answer, together
with proof of the administration of the oath ; but of this fact, as
well as of the place where it was sworn, the certificate of the
master, before whom it was sworn, his signature also being proved,
is- sufficient primd facie evidence.'' The original must also be
produced on a trial for forgery. In civil cases, it will be presumed
that the answer was made upon oath.^ But whether the answer
be proved by production of the original, or by a copy, and in wha1>-
ever case, some proof of the identity of the party will bo requisite.
This may be by proof of his handwriting ; which was the reason
of the order in chancery requiring all defendants to sign their
answers ; or it may be by any other competent evidence.^
1 4 Com. Dig. tit. Evidence, A. 4 ; 2 2 Burr. 1189 ; Hex v. Benson, 2 Campb.
Pliil. Evid. 138, 139. The rule equally 508 ; Bex v. Spencer, By. & M. 97. The
applies to decrees of the ecclesiastical jurat is not conclusiTe as to the place,
courts, Leake v. Marquis of Westmeath, Rex v. Embden, 9 East, 437. The same
2 M. & Rob. 394. strictness seems to be required in an ac-
^ Jones V, Randall, Cowp. 17. tion on the case for a malicious criminal
' 4 Com. Dig. 97, 98, tit. Evidence, prosecution. 16 East, 340 ; 2 Phil. Evid.
C. 1. 140. Sed quaere.
* Ewer V. Ambrose, 4 B. & C. 25. « Bull. N. P. 238.
^ 1 Gilb. Evid. 55, 56 ; Gresley on » Rex v. Morris, 2 Burr. 1189 ; Rex v.
Evid. pp. 108, 109. Benson, 2 Campb. 508. It seems that
' Ewer V. Ambrose, 4 B. & C. 25 ; slight evidence of identity will be deemed
Rowe V. Brenton, 8 B. & C. 737, 765; primd facie sufficient. In Hennell v.
Lady Dartmouth v. Roberts, 16 East, 834, Lyon, 1 B. & Aid. 182, coincidence of
339, 340. name, and character as administrator, was
' Bull. N. P. 238, 239 ; Rex «. Morris, held sufficient ; and Lord Ellenborough
vor. I. 47
554
LAW OF EVIDENCE.
[pAET ra.
§ 513. The judgments of inferior courts are usually proved by
producing from the proper custody the book containing the pro-
ceedings. And as the proceedings in these courts are not usually
made up in form, the minutes, or examined copies of them, will
be admitted, if they are perfect.^ If they are not entered in books,
they may be proved by the officer of the court, or by any other
competent person.^ In either case, resort will be had to the best
evidence, to establish the tenor of the proceedings ; and, therefore,
where the course is to record them, which will be presumed until
the contrary is shown, the record, or a copy, properly authenti-
cated, is the only competent evidence.^ The caption is a necessary
thought, that coincidence of name alone
ought to be enough to call upon the party
to show that it was some other person.
See also Hodgkinson u. Willis, 3 Campb.
401.
1 Arundel v. White, 14 East, 216 ;
Pisher v. Lane, 2 W. Bl. 834; Rex v.
Smith, 8 B. & C. 342, per Lord Tenter-
den. [The original papers and record of
proceedings in insolvency, deposited in
the proper office and produced by the
proper officer, are admissible in evidence
equally with certified copies thereof, al-
though such certified copies are made
;D!7'm«_/"ac('e evidence by statute. Odiorne
V. Bacon, 6 Gush. 185. See also Miller v.
Hale, 26 Penn. St. R. 432.]
2 Dyson v. Wood, 3 B. & Co. 449, 451.
' See, as to justices' courts, Mathews
V. Hougliton, 2 Tairf. 377 ; Holcomb v.
Cornish, 8 Conn. 375, 380; Wolf w. Wash-
burn, 6 Covven, 261 ; Webb v. Alexander,
7 Wend. 281, 286. As to probate courts.
Chase v. Hathaway, 14 Mass. 222, 227 ;
Judge of Probate v. Briggs, 3 N. liamp.
309. As to justices of the sessions, Com-
monwealth V. Bolkom, 8 Pick. 281. [The
copy of a record of a justice of the peace
need not, in Massachusetts, bear a seal.
. Commonwealth v. Downing, 4 Gray, 29,
30. And a copy of the record of a case
before a justice of the peace, described as
such in the record, is sufficiently attested,
if attested by him as "justice," without
adding thereto the words " of the peace."
lb. The contents of a justice's record
should be proved by an authenticated
copy. His certificate alleging what facts
appear by the record is not receivable as
proof. English v. Sprague, 33 Maine,
440. See also, as to records of a justice
of th3 peace, Brown v. Edson, 23 Vt. 325.
A record made by a justice of the peace,
or by a justice of a police court in a crim-
inal case, which does not state that an
appeal was claimed from his decision by
the party convicted, is conclusive evi-
dence, in an action brought against the
justice for refusing to allow the appeal
and committing the party to prison, that
no such appeal was claimed. Wells v.
Stevens, 2 Gray, 115, 118. See also Ken-
dall V. Powers, 4 Met. 553.] [ * The law
of the different states, as to what is compe-
tent evidence of judicial records within the
same state, is a good deal relaxed from the
requirements of the act of congress, or of
the common law. It has been held, that
the records of an inferior court may be
proved by production of the origmal, or
by copy duly authenticated, or by produc-
tion of the original papers. State v. Bart-
lett, 47 Maine, 396. And the copy is suffi-
ciently authenticated by the words, " a true
copy," signed by the magistrate at the
end of the copy. Commonwealth v. Ford,
14 Gray, 399. And it is no fatal objection
to a copy of record, that the papers are
certified separately. Goldstone v. David-
son, 18 Cal. 41. And a justice's judg-
ment may be proved by the production
of the original papers, verified by his tes-
timony with the docket entry of the
justice, if no extended record has been
made. McGrath v. Seagrave, 2 AUen,
443. It has been held in some of tlie
states, that such evidence is not suf-
ficient; Strong V. Bradley, 13 Vt. 9:
unless where the justice had deceased
without perfecting his record ; Story v.
liimball, 6 Vt. 541. And when the copy
consisted of numerous papers, bound to ■
gether with a tape, with nothing upon the
separate papers to identify or authen-
ticate them, preceded by a certificate
"that the papers each and aU were true
copies of record," it was held insufficient
as coming from a district court of the
United States in another state. Pike v.
Crehore, 40 Maine, 503. If the court has
no clerk, the judge may, under the act of
congress, act both as clerk and presiding
CHAP, y.]
RECORDS AND JUDICIAL WRITINGS.
555
part of the record ; and the record itself, or an examined copy, ia
the only legitimate evidence to prove it.^
§ 514. The usual modes of authenticating foreign judgments
are, either by an exemplification of a copy under the great seal of
a state ; or by a copy, proved to be a true copy by a witness who
has compared it with the original ; or by the certificate of an of&cer,
properly authorized by law to give a copy ; which certificate must
itself also be duly authenticated.^ If the copy is certified under
the hand of the judge of the court, his handwriting must be
proved.^ If the court has a seal, it ought to be affixed to the copy,
and proved ; even though it be worn so smooth, as to make
no distinct impression.* And if it is clearly proved that the
court has no seal, it must be shown to possess some other requi-
sites to entitle it to credit.^ If the copy is merely certified by an
officer of the court, without other proof, it is inadmissible.^
[* § 514a. In a recent case^ before the House of Lords, it was
determined, that, in fixing the construction of a foreign document
in the courts of that country, the court are bound to avail them-
selves of every aid, so as to reach the same result which would be
judge. State v. Hinehman, 27 Penn. St.
479. The original of a writ of attach-
ment and execution is as good evidence
as an authenticated copy. Day v. Moore,
13 Gray, 522. The copy coming from an
inferior court, with tlie transfer of the
case, is good evidence to show what was
adjudicated. Brackett v. Hoitt, 20 N. H.
257. A record, certified under the seal
of the court, is sufficient evidence that it
is a court of record. Smith v. Redden, 5
Har. 321. See also Lancaster v. Lane,
19 111.242; Brush v. Blanchard, 19 111.
31 ; Magee v. Scott, 32 Penn. St. 539.]
1 Rex V. Smith, 8 B. & C. 341, per
Bayley, J.
2 Church V. Hubbart, 2 Cranch, 228,
per Marshall, C. J. ; supra, § 488, and
cases there cited. Proof by a witness,
wlio saw the clerk affix the seal of the
court, and attest the copy with his own
name, the witness having assisted him
to compare it with 'he original, was held
sufficient. Buttriok v. Allen, 8 Mass.
273. So, where the witness testified that
the court had no seal. Packard v. Hill,
7 Cowen, 434.
3 Henry v. Adey, 3 East, 221; Bu-
chanan V. Rucker, 1 Campb. 63. The
certificate of a notary-public, to tliis fact
was deemed suffi-'.ient, in Yeaton u. Fry,
6 Cranch. 33,'i.
* Cavanw. Stewart, 1 Stark. R. 525;
Flindt V. Atkins, 3 Campb. 215, n. ; Gar-
dere v. Columbian Ins. Co. 7 Johns. 514.
5 Black V. Ld. Braybrook, 2 Stark. R.
7, per Ld. EUenborough ; Packard v. HiU,
7 Cowen, 434.
^ Appleton V. Ld. Braybrook, 2 Stark.
R. 6 ; 6 M. & S. 34, s. c. ; Thompson v.
Stewart, 3 Conn. 171. [Where a copy of
a judgment recovered in Canada was cer-
tified by A, as clerk, and purported to be
under the seal of the court, and a witness
testified that he had long known A in the
capacity of clerk, and that he helped him
to compare the copy with the original,
and knew it to be correct, and from hia
acquaintance with the seal of the court,
he knew that the seal affixed to the copy
was genuine, it was held, tliat the copy
was sufficiently authenticated. Pickard
V. Bailey, 6 Foster, 152. A copy of the
civil code of France, purporting to be
printed at the royal press in Paris, and
received in the course of our international
exchanges, with the indorsement "La
Garde des Sce'aux de France a la cour
Supreme des Etats Unis," is admissible
in the courts of the United States as evi-
dence of the law of France. Ennis v.
Smith, 14 How. U. S. 400.]
' [*Di Sora (Duchess) v. Phillips, 3-3
Law, J. Ch. H. L. 129.
556 LAW OP EVIDENCE. [PAIIT HI.
obtained in the courts of the foreign forum. For this end, the
following particulars must be regarded: (1.) An accurate trans-
lation ; (2.) an explanation of all terms of art ; (3.) information
as to any special law ; (4.) as to any peculiar rule of construction
of the foreign state, affecting the question. In regard tt) wiUs
executed and proved in a foreign country, where it becomes neces-
sary to enforce their provisions in another forum, it is gener-
ally sufficient to produce an exemplification of the foreign decree
allowing the will and probate, and to record the same in the proper
office of probate, in the forum where such evidence is to be
used.i]
§ 615. In cases of inquisitions post mortem and other private
offices, the return cannot be read, without also reading the commis-
sion. But in cases of more general concern, the commission is of
such public notoriety, as not to require proof. ^
§ 516. With regard to the proof of depositions in chancery, the
general rule is, that tliey cannot be read, without proof of the bill
and answer, in order to show that there was a cause depending,
as well as who were the parties, and what was the subject-matter
in issiie. If there were no cause depending, the depositions are
but voluntary affidavits ; and if there were one, still the deposi-
tions cannot be read, unless it be against the same parties, or
those claiming in privity with them.^ But ancient depositions,
given when it was not usual to enroll the pleadings, may be read
without antecedent proof.* They may also be read upon proof of
the bill, but without proof of the answer, if the defendant is in
contempt, or has had an opportunity of cross-examining, which he
chose to forego.^ And no proof of the bill or answer is neces-
sary, where tlie deposition is used against the deponent, as his
own declaration or admission, or for the purpose of contradicting
him as a witness.^ So, where an issue is directed out of chancery,
and an order is made there, for the reading of the depositions
upon the trial of the issue, the court of law will read them upon
the order, without antecedent proof of the bill and answer, pro
vided the witnesses themselves cannot be produced. '^
1 Isham V. Gibbons, 1 Bradf. Sur. Eep. ^ Cazenove v. Vaughan, 1 M. & S. 4 ,
69.1 Carrington w. Carnock, 2 Sim. 567.
2 Bull. N. P. 228, 229. 6 Highfleld v. Peake, 1 M. & Malk.
8 2 Pliil. Evid. 149; Gresley on Evid. 109; supra, § 512.
185 ; 1 Gilb. Evid. 56, 57. ' Palmer v. Ld. Aylesbury, 15 Vea.
* 1 Gilb. Evid. 64; Gresley on Evid. 176; Gresley on Evid. 185; Bayley ».
185 ; Bayloy v- Wylie, 6 Esp. 85. Wylie, 6 Esp. 85.
CHAP. V.j RECORDS AND JUDICIAL WRITINGS. 551
§ 517. Depositions taken upon interrogatories, under a special
cmnmission, cannot be read without proof of the commission, under
which tliey were taken ; together with tlae interrogatories, if they
can be found. Tlie absence of the interrogatories, if it renders
the answers obscure, may destroy their effect, but does not prevent
their being read.^ Both depositions and affidavits, taken in anotlier
domestic tribunal, may be proved by examined copies.^
§ 618. Testaments, in England, are proved in the ecclesiastical
courts ; and in the United States, in those courts which have been
specially charged with the exercise of this branch of that jurisdic-
tion ; generally styled courts of probate, but in some states
known by other designations, as orphans' courts, &c. There are
two modes of proof, namely, the common form, which is upon the
oath of the executor alone, before the court having jurisdiction of
the probate of wills, without citing the parties interested ; and the
more solemn form of law, per testes, upon due notice and hearing
of all parties concerned.^ The former mode has, in the United
States, fallen into general disuse. By the common law, the eccle-
siastical courts have no jurisdiction of matters concerning the
realty; and therefore the probate, as far as the realty is con-
cerned, gives no validity to the will.* But in most of the United
States, the probate of the will has the same effect, in the case of
real estate, as in that of the personalty ; and where it has not, the
effect will be stated hereafter.^ This being the case, the present
general course is to deposit the original will in the registry of the
court of probate, delivering to the executor a copy of the will, and
an exemplification of the decree of allowance and probate. And
in all cases, where the court of probate has jurisdiction, its decree
is the proper evidence of the probate of the will, and is proved
in the same manner as the decrees and judgments of other
courts.^ A court of common law will not take notice of a will,
as a title to personal property, until it has been thus proved'^ and
where the will is required to be originally proved to the jury, as
1 Eowe V. Brenton, 8 B. & C. 737, 765. « Supra, § 501-509, 513 ; Chase v
2 Supra, §§ 507, 508 ; Highfield v. Hathaway, 14 Mass. 222, 227 ; Judge of
Peake, 1 M. & Malk. 110. In criminal Probate v. Briggs, 3 N. Hamp. 309 ;
cases, some proof of identity of the per- Farnsworth v. Briggs, 6 N. Hamp. 561.
son is requisite. Supra, § 512. ' Stone v. Forsyth, 2 Doug. 707. The
* 2 Bl. Comra. 508. character of executor may he proved by
* Hoe V. Melthorpe, 3 Salk. 154 ; Bull, the act-book, without producing the
N. P. 245, 246. probate of the will. Cox v. AUingham,
s See infra, § 550, and vol. 2, tit. Jacob, K. 514. And see Doe v. Mew, 7
Wills, § 672. Ad. & El. 239.
47*
558 LAW OP EVIDENCE. [PAET IH.
documentary evidence of title, it is not permitted to be read, unlesa
it bears tlie seal of the ecclesiastical court, or some other mark of
authentication.!
§ 519. Letters of administration are granted under the seal of the
court, having jurisdiction of the probate of wills ; and the general
course in the United States, as in the case of wills, is to pass a
formal decree to that effect, which is entered in the book of
records of the court. The letter of administration, therefore, is
of the nature of an exemplification of this record, and as such
is received without other proof. But where no formal record is
drawn up, the book of acts, or the original minutes or memorial
of the appointment, or a copy thereof duly authenticated, will be
received as competent evidence.^
§ 520. Examinations of prisoners in criminal cases are usually
proved by the magistrate or clerk who wrote them down.^ But
there must be antecedent proof of the identity of the prisoner
and of the examination. If the prisoner has subscribed the
examination with his name, proof of his handwriting is sufficient
evidence that he has read it; but if he has merely made his
mark, or has not signed it at all, the magistrate or clerk must
identify the prisoner, and prove that the writing was duly read
to him, and that he assented to it.*
§ 521. In regard to the proof of writs, the question whether
this is to be made by production of the writ itself, or by a copy,
depends on its having been returned or not. If it is only mat-
ter of inducement to the action, and has not been returned, it may
be proved by producing it. But after the writ is returned, it
has become matter of record, and is to be proved by a copy
from the record, this being the best evidence.^ If it cannot be
found after diligent search, it may be proved by secondary evi-
dence, as in other cases.® The fact, however, of the issuing of
1 Eex V. Barnes, 1 Stark. E. 243 ; ters, 608, 626. See also Bull. N. P. 246 ;
Shumway v. Holbrook, 1 Pick. 114. See Elden v. Keddel, 8 East, 187 ; 2 M. & S.
further 2 Phil. Evid. 172 ; Gorton v. 567, per Bayley, J. ; 2 Phil. Evid. 172,
Dyson, 1 B. & B. 221, per Richardson, J. 173 ; 1 Stark. Evid. 255.
2 The practice on this subject is vari- ' 2 Hale, P. C. 52, 284.
ous in the different states. See Dicken- * See supra, §§ 224, 226, 227, 228.
son V. McCraw, 4 Rand. 158 ; Seymour v. 6 gjn, i^_ p_ 234 ; Foster v. Trull, 12
Beach, 4 Verm. 493; Jackson v. Robin- Johns. 456; Plgot v. Davis, 3 Hawks,
son, 4 Wend. 436 ; Farnsworth v. Briggs, 25 ; Frost v. Shapleigh, 7 Greenl. 236 ;
6 N. Hamp. 561; Hoskins v. Miller, 2 Brush «. Taggart, 7 Johns. 19; Jenner v..
Devereaux, 360 ; 0 wings v. Beall, 1 Lit- Jolliffe, 6 Johns. 9.
tell, 257, 259 ; Browning v. Huff, 2 « Supra, § 84, note \2)
Bailey, 174, 179 ; Owings v. Hull, 9 Pe-
CHAP, v.] RECORDS AND JUDICIAL WRITINGS. 559
the writ may sometimes be proved by the admission of the party
against whom it is to be proved.^ And the precise time of suing
it out may be shown by parol.^
§ 522. We proceed in the next place, to consider the admis-
sibility AND EFFECT OF RECORDS, as instruments of evidence. The
rules of law upon this subject are founded upon these evident
principles, or axioms, that it is for the interest of the community
that a limit should be prescribed to litigation ; and that the same
cause of action ought not to be brought twice to a final determina-
tion. Justice requires that every cause be once fairly and im-
partially tried ; but the public tranquillity demands that, having
been once so tried, all litigation of that question, and between
those parties, should be closed for ever. It is also a most obvious
principle of justice, that no man ought to be bound by proceedings
to which he was a stranger; but the converse of this rule is
equally true, that by proceedings to which he was not a stranger,
he may well be held bound.
§ 523. Under the term parties, in this connection, the law in-
cludes all who are directly interested in the subject-matter, and
had a right to make defence, or to control the proceedings, and to
appeal from the judgment. This right involves also the right
to adduce testimony, and to cross-examine the witnesses adduced
on the other side. Persons not having these rights are regarded as
strangers to the cause.^ But to give full effect to the principle by
which parties are held bound by a judgment, all persons who are
represented by the parties, and claim under them, or in privity
' As, in an action by the oiEcer country, commenced an action of crim.
against the bailee of the goods attaclied, con. as his procAem amj, the judgment was
for which he has given a forthcoming held conclusive against the son, after his
obhgation, reciting the attachment. Ly- majority ; the prochein amy having been
man t). Lyman, 11 Mass. 317 ; Spencer t;. appointed by the court. Morgan v.
Williams, 2 Verm. 209 ; Lowry v. Cady, Thome, 9 Dowl. 228. In New York, a
4 Verm. 504 ; Foster v. Trull, 12 Johns, judgment in an action on a joint obliga-
456. So where the sheriif is sued for an tion is conclusive evidence of the liability
escape, and has not returned the precept of those only who were personally served
on which the arrest was made. Hinman with the process. 2 Rev. Stat. 574, 3d
V. Brees, 13 Johns. 529. edit. [It is a general and established rule
^ Lester v. Jenkins, 8 B. & C. 339 ; of law, that when a party's right may be
Morris v. Pugh, 3 Burr. 1241 ; Wilton v. collaterally affected by a judgment, which
Girdlestone, 5 B. & Aid. 847 ; Micliaels for any cause is erroneous and void, but
V. Shaw, 12 "Wend. 587 ; Allen v. Port- which he cannot bring a writ of error to
land Stage Co. 3 Greenl. 507 ; Taylor v. reverse, he may, without reversing it,
Dundass, 1 Wash. 94. prove it so erroneous and void in any suit
^ Duchess of Kingston's case, 20 How- in which its validity is drawn in question,
ell's St.' Tr. 538, n.; Carter «. Bennett, 4 By Metcalf, J., in Vose v Morton, 4
Plor. Eep. 362. Where a father, during Gush. 27, 31.1
the absence of his minor son from the
560 LAW OF EVIDENCE. [PAET HI.
with them, are equally concluded by the same proceedings. We
have already seen, that the iQvm privity denotes mutual or succes-
sive relationship to the same rights of property.^ The ground,
therefore, upon which persons standing in this relation to the liti-
gating party are bound by the proceedings, to which he was a
party, is, that they a.re identified with him in interest ; and where-
ever this identity is found to exist, all are alike concluded. Hence
all privies, whether in estate, in blood, or in law, are estopped
from litigating that which is conclusive upon him with whom they
are in privity.^ And if one covenants for the results or conse-
quences of a suit between others, as if he covenants that a certain
mortgage, assigned by him, shall produce a specified sum, he
thereby connects himself in privity with the proceedings, and the
record of the judgment in that suit wUl be conclusive evidence
against him.^
§ 624. But to prevent this rule from working injustice, it is
held essential that its operation be mutual. Both the litigants
must be alike concluded, or the proceedings cannot be set up as
conclusive upon either. For if the adverse party was not also a
party to the judgment offered in evidence, it may have been ob-
tained upon his own testimony ; in which case, to allow him to derive
a benefit from it would be unjust.* Another qualification of the
rule is, that a party is not to be concluded by a judgment in a
prior suit or prosecution, where, from the nature or course of the
proceedings, he could not avail himself of the same means of
defence, or of redress, which are open to him in the second
suit.^
§ 525. An apparent exception to this rule, as to the identity of
the parties, is allowed in the cases usually termed proceedings in
rem; which include not only judgments of condemnation of
1 Supra, § 189. See also §§ 19, 20. against the servant, and parol evidence is
2 Carver v. Jackson, 4 Peters, 85, 86 ; admissible to show that the same matter
Case V. Reeve, 14 Johns. 81. See also • is in controversy in both actions. Emery
Kinnersley v. Wm. Orpe, 2 Doug. 517, v. Powler, 39 Maine, 326.] [* So, too, in
expounded in 14 Johns. 81, 82, by Spen- all cases, the record of a judgment is evi-
cer, J. [A privy by representation as an dence in suits where the rights of the
executor, administrator, or assignee, is parties are dependent upon those of the
bound by a judgment against Ms prinei- parties to such judgment, and such depen-
pal. Chapin v. Curtis, 23 Conn. 888. A dence may be sliown by evidence en pais.
judgment on the merits against a master. Key v. Dent, 14 Md. 86.1
in an action of trespass, for the act of his " Rapelyfe v. Prince, 4 Hill, R. 119.
servant, is a bar to an action against the * Wood v. Davis, 7 Crauch, 271 ;
servant for the same act, though such Davis v. Wood, 1 Wheat. 6.
judgment was not rendered till after the ^ 1 Stark. Evid. 214, 215.
general issue was pleaded to the action
CHAP, v.]
KECOr.DS AND JUDICIAL WRITINGS.
561
property, as forfeited or as prize, in the Exchequer or Admiralty,
but also the decisions of other courts directly upon the personal
status, or relations of the party, such as marriage, divorce, bas-
tardy, settlement, and the like. These decisions are binding and
conclusive, not only upon the parties actually litigating in the
cause, but upon all others ; partly upon the ground that, in most
cases of this kind, and especially in questions upon property
seized and proceeded against, every one who can possibly be
affected by the decision has a right to appear and assert his own
rights, by becoming an actual party to the proceedings ; and partly
upon the more general ground of public policy and convenience,
it being essential to the peace of society, that questions of this
kind should not be left doubtful, but that the domestic and social
relations of every member of the community should be clearly
defined and conclusively settled and at rest.^
§ 526. A further exception is admitted in the case of verdicts
and judgments upon subjects of a public nature, such as customs,
and the like ; in most of all of which cases, evidence of reputation
1 1 Stark. Evid. 27, 28. [The decree
of a court of competent jurisdiction dis-
missing for want of proof a libel filed
by a wife against her husband, after hav-
ing left his house, for a divorce from bed
and board for extreme cruelty, is not con-
clusive evidence of her having unjustifi-
ably left his house, in an action by a third
person against him for necessaries fur-
nished ths wife. Burlen v. Shannon, 3
Gray, 387, 389. In giving the opinion of
the court in this cas3, Shaw, C. J., said :
" We have no doubt that a decree
upon a libel for divorce, directly deter-
mining the status of the parties, that is,
whether two persons are or are not hus-
band and wife ; or, if they have been
husband and wife, that such a decree di-
vorcing them, either a vinculo or a mensa,
would be conclusive of the fact in all
courts and everywhere, that they are so
divorced. If it were alleged that a mar-
riage was absolutely void, as being within
the degrees of consanguinity, a decree of
this cirt, on a libel by one of the par-
ties against the other, adjudging the mar-
riage to be void, or valid, would be con-
clusive everywhere. So, under the Rev.
Stat. 76, § 4, where one party alleges
and (he other denies the subsistence of a
valid marriage between them, the adjudi-
cation of the competent tribunal would be
conclusive. The legal, social relation and
condition of the parties, as being husband
and wife or otherwise, divorced or other-
wise, is what we understand by the term
status. To this extent the decree in ques-
tion had its full eflTect, by which every
party is bound. It did not establish, but
it recognized and presupposed the relation
of husband and wife as previously sub-
sisting; and as the final judgment was,
that the grounds on which a divorce a
mensa was claimed were not estabhshed in
proof, and the libel was dismissed, which
was a final judgment, no change in the
status of the parties was effected, and they
stood, after the judgment, in the relation
in which they stood at the commencement
of the suit — that of husband and wife.
Beyond this legal effect of a judgment in
a case for divorce — that of determining
the status of the parties — the law applies,
as in other judicial proceedings : viz., that
a judgment is not evidence in another
suit, except in cases in which the same
parties or their privies are litigating in
regard to the same subject of contro-
versy."
Authenticated copies of decrees of cer-
tain courts in the Russian province of
Lithuania, on a question of pedigree, of
which they have jurisdiction, are conclu-
sive evidence of the fects adjudicated
against all the world. Ennis v. Smith, 14
How. U. S. 400.]
662 LAW OP EVIDENCE. [PART IH
is admissible ; and also in cases of judgments in rem, which may
be again mentioned hereafter.^
§ 527. A judgment, when used by way of inducement, or to
establish a collateral fact, may be admitted, though the parties are
not the same. Thus, the record of a conviction may be shown, in
order to prove the legal infamy of a witness. So, it may be
shown, in order to let in the proof of what was sworn at the trial ;
or to justify proceedings in execution of the judgment. So, It
may be used to show that the suit was determined; or,. in proper
oases, to prove the amount which a principal has been compelled
to pay for the default of his agent ; or, the amount which a surety
has been compelled to pay for the principal debtor ; and, in
general, to show the fact, that the judgment was actually rendered
at such a time, and for stich an amount.^
§ 527a. A record may also be admitted in evidence in favor
of a stranger, against one of the parties, as containing a solemn
admission, or judicial declaration by such party, in regard to a
certain fact. But in that case it is admitted not as a judgment
conclusively establishing the fact, but as the deliberate declaration
or admission of the party himself that the fact was so. It is there-
fore to be treated according to the principles governing admissions,
to which class of evidence it properly belongs. Thus, where a
carrier brought trover against a person to whom he had delivered
the goods intrusted to him, and which were lost, the record in this
suit was held admissible for the owner, in a subsequent action
brought by him against the carrier, as amounting to a confession
in a court of record, that he had the plaintiff's goods.^ So, also,
where the plaintiff, in an action of trespass quare clausum fregit,
claimed title by disseisin, against a grantee of the heirs of the
disseisee, it was held, that the count, in a writ of right sued by
those heirs against him, might be given in evidence, as their decla-
ration and admission that their ancestor died disseised, and that
the present plaintiff was in possession.* So, where two had been
sued as partners, and had suffered judgment by default, the record
was held competent evidence of an admission of the partnership,
1 See infra, §§ 541, 542, 544, 565. » Tiley v. Cowling, 1 Ld. Eaym. 744
2 See further infra §§ 638, 539 ; Look per Holt, C. J. ; Bull. N. P. 243, s. c. ;
». Winston, 10 Ala. .849 ; King v. Chase, Parsons v. Copeland-, 33 Maine, 370.
16 N. Hamp. R. 9 ; Green v. New River * Robinson v. Swett, 3 Greenl. 316 ;
Co. 4 T. R. 589 ; [Chamberlain v. Car- supra, § 195 ; Wells v. Compton, 3 Rob.
lisle, 6 Poster, 540 ; Key v. Dent, 14 Md. Louis. R. 171. And see Kellenberger v.
86.] Sturtevant, 7 Cush. 465.
CHAP. T.J RECORDS AND JUDICIAL WRITINGS. 563
in a subsequent action brought by a third person against tliem as
partners.^ And on the same ground, in a libel by a wife for
a divorce, because of tlie extreme cruelty of the husband, the record
of his conviction of an assault and battery upon her, founded upon
his plea of " guilty," was held good evidence against him, as a judi-
cial admission of the fact. But if the plea had been " not guilty,"
it would have been otherwise.^
§ 528. The principle upon which judgments are lield conclusive
upon the. parties requires that the rule should apply only to that
which was directly in issue, and not to every thing which was
incidentally brovight into controversy during the trial. We have
seen that the evidence must correspond with the allegations, and
be confined to the point in issue. It is only to the material alle-
gations of one party that the other can be called to answer ; it
is only upon such that an issue can properly be formed;- to such
alone can testimony be regularly adduced ; and upon such an
issue only is judgment to be rendered. A record, therefore, is not
held conclusive as to the truth of any allegations, which were not
material nor traversable ; but as to things material and traversable,
it is conclusive and final. The general rule on this subject was
laid down with admirable clearness, by Lord Chief Justice De
Grey, in the Duchess of Kingston's case,* and has been repeatedly
confirmed and followed, without qualification. " From the variety
of cases," said he, " relative to judgments being given in evidence
in civil suits, these two deductions seem to follow as generally
true : first, that the judgment of a court of concurrent jurisdiction,
directly upon the point, is, as a plea, a bar ; or, as evidence,
conclusive between the same parties, upon the same matter,
directly in question in another court ; secondly, that the judgment
of a court of exclusive jurisdiction, directly upon the point, is, in
lilie manner, conclusive upon the same matter, between the same
parties, coming incidentally in question in another court, for a
difierent purpose.* But neither the judgment of a concurrent nor
1 Crais V. Carleton, 8 Shepl. 492. tribunal having competent authority and
2 Bradley i>. Bradley, 2 Faiif. 367; full jurisdiction is presumptively upon the
Woodruff V. Woodruff, Id. 475. merits, and is, prima facie, a bar to any
3 20 Howell's St, Tr. 538 ; expressly after suit. Stearns v. Stearns, 32 "Vt. 678.
»dopted and confirmed in Harvey v. Rich- And the award of an arbitrator is, prim&
iids, 2 Gall. 229, per Story, J.; and in /aci'e, conclusive upon all matters of differ-
Hibsham v. DuUeban, 4 Watts, 183, per ence submitted. Harrison v. Creswick,
Gibson, C. J. And see ICing v. Chase, 15 IS Com. B. 399, 416.]
^f. Hamp. E. 9. [ * The judgment of a * Thus, a judgment at law, agamst the
564 LAW OP EVIDENCE. [PAKT HI.
exclusive jurisdiction is evidence of any matter, wliich came col-
laterally in question, though within their jurisdiction ; nor of any
matter incidentally cognizable ; nor of any matter to be inferred by
ai-gument from the judgment." ^
§ 529. It is only where the point in issue has been determined,
that the judgment is a bar. If the suit is discontinued, or the
plaintiff becomes nonsuit, or for any other cause there has been
no judgment of the court upon the matter in issue, the proceedings
are not conclusive.^
§ 530. So, also, in order to constitute the former judgment a
complete bar, it must appear to have been a decision upon the
merits; and this will be sufficient, though the declaration were
essentially defective, so that it would have been adjudged bad on
demurrer.^ But if the trial went off on a technical defect,* or
because the debt was not yet due,^ or because the court had not
jurisdiction,^ or because of a temporary disability of the plaintiff to
sue,^ or the like, the judgment will be no bar to a future action.
§ 531. It is well settled, that a former recovery may be shown
in evidence, under the general issue, as well as pleaded in bar ;
and that when pleaded, it is conclusive upon the parties.^ But
whether it is conclusive when given in evidence is a point which has
been much doubted. It is agreed, that when there has been no
validity of a bill, as having been given for been inadvertently inserted a direction as to
a gambling debt, is conclusive of that fact the distribution of a certain fund, it was
in equity also. Pearce v. Gray, 2 Y. & C. held that the parties interested were not
322. Plans, and documents referred to in aifected thereby. Holland v. Cruft, 3
the pleadings are conclusive upon the Gray, 162, 187.1
parties, if they are adopted by the issues ^ Hughes v. Blake, 1 Mason, 515, 519,
and make part of the judgment ; but not per Story, J. [A judgment of nonsuit by
otherwise. Hobbs v. Parker, 1 Redingt. the Supreme Court of Massachusetts, eu-
143. tered by consent of the parties, on an
1 See 2 Kent, Coram. 119-121 ; Story agreed statement of facts, has been held
on Coufl. of Laws, § 591-593, 603-610. not be a bar to a suit between the same
This subject, particularly with regard to parties upon the same cause of action,
the identity of the issue or subject-matter though the state court, in pronouhcing its
in controversy, in actions concerning the judgment, may have expressed an opinion
realty, is ably reviewed and illustrated by upon the merits of the plaintiff's case.
Putnam, J., in Arnold v. Arnold, 17 Pick. Homer v. Brown, 16 How. U. S. 354.1
7-14. [Vose V. Morton, 4 Cush. 27, 31.] * Ibid.; Lane v. Harrison, Munf 573;
■^ Knox V. Waldoborougli, 5 Greenl. McDonald v. Eainor, 8 Johns. 442 ; Lep-
185 ; Hull V. Blake, 13 Mass. 155 ; Swei- ping v. Kedgewin, 1 Mod. 207.
gart V. Berk, 8 S. & E. 305 ; Bridge v. * jj. E„g. Bank v. Lewis, 8 Pick. 113
Sumner, 1 Pick. 371 ; 3 Bl. Comm. 296, « EstiU v. Taul, 2 Yerg. 407, 470.
377. So, if the judgment has been re- ' Dixon v. Sinclair, 4 Verm. 354.
versed. Wood v. Jackson, 8 Wend. 9. ' Trevivan v. Lawrence, 1 Salk. 276 ;
If there has been no judgment, it has been 3 Salk. 151, s. o. ; Outram a. Morewood.
ruled that the pleadings are not admissible 3 East, 346 ; Kitchen v. Campbell, 3 Wlls.
as evidence of the facts recited in them. 304; 2 W. BI. 827, s. c. ; [Warren v.
Holt V. Miers, 9 C. &P. 191. [And where, Comings, 6 Cush. 103, 104; Chamberlain
in a. decree in a suit in equity, there has v. Carlisle, 6 Foster, 540.]
CHAP. V.j RECORDS AND JUDICIAL WRITINGS. 565
opportunity to plead a matter of estoppel in bar, and it is offered
in evidence, it is equally conclusive, as if it had been pleaded.^
And it is further laid down, that when the matter, to which the
estoppel applies, is alleged by. one party, and the other, instead
of pleading the estoppel, chooses to take issue on the fact, h6
waives the benefit of the estoppel, and leaves the jury at liberty
to find according to the fact.^ This proposition is admitted, in its
application to estoppels arising from an act of the party himself,
in making 'a deed, or the like ; but it has been denied in its
application to judgments recovered ; for, it is said, the estoppel,
in the former case, is allowed for the benefit of the other party,
which he may waive ; but the whole community have an interest
in holding the parties conclusively bound by the result of their
own litigation. And it has been well remarked, that it appears
inconsistent, that the authority of a res judicata should govern the
court, when the matter is referred to them by pleading, but that
a Juri/ should be at liberty altogether to disregard it, when the
matter is referred to them in evidence ; and, that the operation
of so important a principle should be left to depend upon the
technical forms of pleading in particular actions.^ And notwith-
standing there are many respectable opposing decisions, the weight
of authority, at least in the United States, is believed to be in
favor of the position, that where a former recovery is given in evi-
dence, it is equally conclusive, in its effect, as if it were specially
pleaded by the way of estoppel.*
' Howard v. Mitchell, 14 Mass. 241 ; therefore waive it : and unquestionably,
Adams v. Barnes, 17 Mass. 365. So, in so far as lie is individually concerned,
equity. Dovvs v. McMichael, 6 Paige, there can be no rational objection to his
139. doing so. But then it ought to be recol-
2 Ibid. lected that the community has also an
' Phil. & Am. on Evid. 512. equal interest and concern in the matter,
* This point was briefly, but very on account of its peace and quiet, which
forcibly, argued by Kennedy, J., in ought not to be disturbed at the will and
Marsli V. Pier, i Rawle, 288, 289, inv the pleasure of every individual, in order to
folioHing terms: The propriety of those gratify vindictive and litigious feelings,
decisions, which have admitted a judg- Hence it would seem to follow, that, wher-
ment iu a former suit to be given in ever on the trial of a cause from the
evidence to the jary, on the trial of a sec- state of the pleadings in it, the record of
ond suit for the same cause between the a judgment rendered by a competent tri-
same parties, or those claiming under bunal upon the merits in a former action
them, but at the same time have held that for the same cause, between the same par-
the jury were not absolutely bound by ties, or those claiming under them, is prop-
such judgment, because it was not plead- erly given in evidence to the jury, tliat it
ed, may well be questioned. The maxim, ought to be considered conclusively bind-
neino debet bis r<rari si. constet curim quod sit ing on both court and jury, and to pre-
firo una et eadan causa, being considered, elude all further inquiry in the cause ;
as doubtless it was, established for the otherwise tlie rule or maxim, expedit rei-
protection and benefit of the party, he may publicce ut sit finis litium, which is as old as
voT [ 48 *
566
LAW OP ETIDENCE.
[part ni.
[* § 531a. This question is carefully examined by us, in a case
in Vermont,'- and the earlier cases reviewed. The form of pleading
an estoppel is there considered, and that adopted in Shelly v.
Wright ^ approved. But it is there said, that when a former adju-
dication is relied upon, as having determined the entire controversy
now in hand, it need never be pleaded as an estoppel, but is an
equitable defence, and in many actions may be given in evidence
under the general issue ; and when required to be pleaded specially,
the law itself, and a part of it, >Yill be ex-
ploded and entirely disregarded. But if
it be part of our law, as seems to be ad-
mitted by all that it is, it appears to me,
that the court and jury are clearly bound
by it, and not at liberty to find against'
such former judgment. A contrary doc-
trine, as it seems to me, subjects the pub-
lic peace and quiet to the will or neglect
of individuals, and prefers the gratifica-
tion of a litigious disposition on the part
of suitors, to the preservation of the public
tranquillity and happiness. The result,
among other things, would be, that the
tribunals of the state would be bound to
give their time and attention to the trial
of new actions, for the same causes, tried
once or oftener, in former actions between
the same parties or privies, without any
limitation, other than the will of the par-
ties litigant, to the great delay and injury,
if not exclusion occasionally of other
causes, which never have passed in rem
judicatam. The effect of a judgment of a
court, having jurisdiction over the subject-
matter of controversy between the par-
ties, even as an estoppel, is very different
from an estoppel arising from the act of
the party himself, in making a deed of in-
denture, &c., which may, or may not be
enforced at the election of the other party ;
because, whatever the parties have done
by compact, they may undo by the same
means. But a judgment of a proper
court, being the sentence or conclusion of
the law, upon the facts contained within
the record, pats an end to all further liti-
gation on account of the same matter,
and i.uco.iies the law of the case, which
cannot be changed or altered, even by
the consent of tiie parties, and is not
only binding upon them, but upon the
courts and juries, ever afterwards, as
long as it shall remain in force and un-
reversed." A similar view, with the like
distinction, was taken by Huston, J., in
Kilheffer v. Herr, 17 S. & R. 325, 326.
See also to the point, that the evidence
is conclusive, Shafer v. Stonebraker,
4 G. & J. 345; Cist v. Zigler, 16 S. & R.
282; Betts v. Starr, 5 Conn. 550, 553;
Preston v. Harvey, 2 H. & Mun. 55 ; Es-
till V. Taul, 2 Yerg. 467, 471 ; King v.
l/Gbase, 15 N. Hamp. R. 9. In New York,
fas remarked by Savage, C. J., in Wood
V. Jackson, 8 Wend. 24, 25, the decisions
have-not been uniform, nor is it perfectly
clear, where the weight of authority or of
argument lies. But in the later case of
Lawrence ii. Hunt, 10 Wend. 83, 84, the
learned judge, who delivered the opinion
of the court, seemed inclined in favor of
the conclusiveness of the evidence. [This
case was confirmed in Thompson v. Rob-
erts, 24 How. 233.] See, to the same
point, Hancock v. Welch, 1 Stark. R.
347 ; Whately v. Menheim, 2 Esp. 608 ;
Strutt V. Bovingdon, 5 Esp. 56-59; Rex
V. St. Pancras, Peake's Cas. 220 ; Duchess
of Kingston's case, 20 Howell's St. Tr.
538 ; Bbd v. Randall, 3 Burr. 1353. The
contrary decision of Vooglit v. Winch, 2
B. & Aid. 662, was cited, but without be-
ing approved, by Best, C. J., in Stafibrd
V. Clark, 1 C. & P. 405, and was again
discussed in the same case, 2 Bing. 377 ;
but each of the learned judges expressly
declined giving any opinion on the point.
This case, however, is reconciled with
other English cases, by Mr. Smith, on the
ground, that it means no more than this,
that where the party might plead the rec-
ord by estoppel, bat does not, he waives
its conclusive character. See 2 Smith's
Leading Cases, 434, 444, 445. The learned
author, in the note here referred to, has
reviewed the doctrine of estoppels in a
masterly manner. The judgment of a
court-martial, when offered in evidence in
support of a justification of imprisonment,
by reason of military disobedience and
misconduct, is not regarded as conclusive ;
for the special reasons stated by Lord
Mansfield in Wall v. McNamara, 1 T; E.
536. See ace. Hannaford v. Hunn, 2 G.
& P. 148.
1 [ * Gray v. Pingry, 17 Vt. E. 419.
2 WiUes, 9.
CHAP, v.] RECOEDS AND JUDICIAL WEIIINGS. 567
is not required to be pleaded with greater strictness than any
other plea in bar. But when the former trial is relied upon as
settling some collateral matter of fact, involved in the present
controversy, it must, to be conclusive, be pleaded strictly as an
estoppel, and the record vouched in support of the plea must con-
tain, upon its face, evidence that the particular fact was in issue,
and was found by the triers. And if the record do not show
this, and it becomes necessary to resort to oral evidence to show
it, the matter cannot be pleaded as an estoppel, but it becomes
a question for the jury ; — but, nevertheless, if it be proved to the
satisfaction of the jury, that the fact was determined in the former
controversy between the same parties, it is equally conclusive,
both upon the parties and the jury, as if it appeared of record.
We are not aware that the more recent decisions have in any
respect modified the foregoing propositions.] ^
§ 532. When a former judgment is shown by way of bar,
whether by pleading, or in evidence, it is competent for the plain-
tiif to reply, that it did not relate to the same property or transaction
in controversy in the action, to which it is set up in bar ; and the
question of identity, thus raised, is to be determined by the jury,
upon the evidence adduced.^ And though the declaration in the
1 Perkins v. Walker, 19 Vt. E. 144, an action against one of two joint trespas-
where the subject is very ably discussed sers, which would be conclusive evidence
by Bennett, J.] in a subsequent action against him by the
'^ So, if a deed is admitted in pleading, same plaintiff, will not be conclusive in an
proof of the identity may still be required, action by such plaintiff against the co-
Johnston V. Cottingham, 1 Armst. Mao- trespasser. Sprague v. Oakes, 19 Pick,
artn. & Ogle, R. 11. And see Garrott v. 455-458. Judgment and satisfaction in an
Johnson, 11 G. & J. 173. [A verdict and action on a bond given to dissolve an at-
judgment for B in an action at law brought tachment, constitute no defence to an
against him by A, for obstructing the flow action on a bond given to obtain a review
of water to A's mill, in which action B put of the action in which the attachment was
in the plea of "not guilty," and a speci- made, for a breach of a condition to enter
fication of defence denying both A's right such review at the next term of the court,
and any injury thereto, are no bar to a Lehan v. Good, 8 Gush. 302-309.
suit in equity by A against B to restrain To an action for goods sold, the defen-
such obstruction, unless it appear either by dant answered that he had, in part pay-
the record, or by extrinsic evidence that ment of the price, given a special promise
B prevailed in the action at law because to pay certain debts of the plaintiff, and
A had failed to satisfy the jury that B had had performed that promise, and that he
violated A's rights. McI)owell v. Lang- had otherwise paid the remainder of the
don, 3 Gray, 513. To prove that the 24th price. The detendant recovering in this
day of a certain month was a reasonable action, the plaintiff brought an action on
time in which to perform a certain con- the special promise, and it was held that
tract, the record of a former judgment be- the judgment for the defendant in the for-
tween the same parties establishing that mer action was no bar to the subsequent
the 22d day of the s.ame month was with- action on the special promise. Harding v.
in a reasonable time,.is not competent evi- Hale, 2 Gray, 399, 400. A having con-
dence. Sage v. lyicAlpin, 11 Gush. 165. traded to convey land to B, conveyed it
A verdict in favor" of the defendant in to C. B brought a bill in equity against
568
LAW OP EVIDENCE.
[PA-KT III,
former suit may be broad enough to include the subject-matter
of the second action, yet if, upon tlie whole record, it remains
doubtful whether the same subject-matter were actually passed
upon, it seems that parol evidence may be received to show the
truth.i So, also, if the pleadings present several distinct proposi-
tions, and the evidence may be referred to either or to all with
the same propriety, the judgment is not conclusive, but only
primd facie evidence upon any one of the propositions, and evi-
dence aliunde is admissible to rebut it.^ Thus where the plaintiff
in a former action declared upon a promissory note, and for goods
sold, but upon executing the writ of inquiry, after judgment by
default, he was not prepared with evidence on the count for goods
sold, and therefore took his damages only for the amount of the
note ; he was admitted, in a second action for the goods sold, to
prove the fact by parol, and it was held no bar to the second
action.^ And upon the same principle, if one wrongfully take
A and C for a specific performance of the
contract, but judgment was rendered
thereon for the respondents, A and C. B
subsequently brought an action at law
against A to recover damages for the
breach of the contract, and it was held
that the judgment in the equity suit was
no \pjX to the action at law. Buttrick v.
Holden, 8 Cush. 283-236.]
1 It is obvious that, to prove what was
the point in issue in a previous action at
common law, it is necessary to produce
the entire record. Foot v. Glover, 4 Blackf.
313. And see Morris v. Keyes, 1 Hill,
540 ; Glasscock v. Hays, 4 Dana, 59 ;
[Drake v. Merrill, 2 Jones, Law, 368. A
petitioner for partition, claiming title under
a judgment, may show by parol evidence
that his name was incorrectly stated in
the judgment, through mistake ; and it is
not necessary for this purpose that the
mistake should be previously corrected
on the record. And where there is a dif-
ference between the description of the
land of which partition is demanded in a
petition for partition, and the description
of land in a judgment under which tlie
petitioner claims title, he may show by
parol, that the land described in both is
the same, and if he establishes this fact,
then the former judgment is conclusive
evidence of his title thereto. Wood v.
he Baron, 8 Cush. 471, 473 ; Root v. Pel-
lowes, 6 Cush. 29; Washington Steam
Packet Co. v. Sickles, 24 How. 333.]
^ Henderson v. Kenner, 1 Kichardson,
B. 574.
8 Seddon v. Tutop, 6 T. R. 608; Had-
ley V. Green, 2 Tyrwh. 390. See ace.
Bridge v. Gray, 14 Pick. 25 ; Webster v.
Lee, 5 Mass. 334 ; Ravee v. Farmer, 4 T.
R. 146 ; Thorpe v. Cooper, 5 Bing. 116 ;
Phillips V. Berick, 16 Johns. 136. But if
the jury have passed upon the claim, it is
a bar though they may have disallowed it
for want of sufficient evidence. Stafford
V. Clark, 2 Bing. 377; 382, per Best, C. J. ;
Phillips V. Berick, supra. So, if the fact
constituting the basis of the claim was
proved, among other things,' before an
arbitrator, but he awarded no damages for
it, none having been at that time expressly
claimed. Dunn v. Murray, 9 B. & C. 780.
So, if he sues for part only of an entire
and indivisible claim ; as, if one labors for
another a year, on the same hiring, and
sues for a month's wages, it is a bar to
the whole. Miller v. Covert, 1 Wend.
487. But it seems that, generally, a run-
ning account for goods sold and delivered
does not constitute an entire demand.
Badger v. Titcomb, 15 Pick. 415. Contra,
Guernsey v. Carver, 8 Wend. 492. So,
if, having a claim for a greater amount
consisting of several distinct particulars,
he sues in an inferior court, and takes
judgment for a less amomit. Bagot v.
Williams, 3 B. & C. 236. So, if he ob-
tains an interlocutory judgment for hia
whole claim, but, to avoid delay, takes a
rule to compute on one item only, and en-
ters a nolle prosequi as to the other. Bow-
den V. Home, 7 Bing. 716.
CHAP, v.]
RECORDS AND JUDICIAL WRITINGS.
569
another's horse and sell him, applying the money to his own use,
a recovery in trespass, in an action by the owner for the taking,
would bo a bar to a subsequent action of assumpsit for the money
received, or for the price, the cause of action being proved to be
the same.^ But where, from the nature of the two actions, the
1 17 Pick. 13, per Putnam, J. ; Toung
V. Black, 7 Craneh, 565; Livermore v.
Herschell, 3 Pick. 33; [Norton v. Do-
herty, 3 Gray, 372.] Whether parol eri-
(lence would be admissible, in such case,
to prove that the damages awarded in
trespass were given merely for the tortious
taking, without including the value of the
goods, to which no evidence had been of-
fered; gucsre, and see Loomis v. Green,
7 Greenl. 386. [The assignees of an in-
solvent debtor brought a bill in equity to
set aside conveyances of property made
by the debtor to the respondents, as
made and taken either without considera-
tion and in fraud of creditors, or by way
of unlawful preference, contrary to the
insolvent laws. The bill charged the res-
pondents in the common form with com-
bining and confederating with divers
other persons to the complainants un-
known, and prayed for relief against the
respondents jointly and severally; and
the court after a hearing upon the merits
decreed that the demands set up by the
respondents, in their several answers were
justly due them from the insolvent, and
that the conveyances of property in pay-
ment thereof, were not made in violation
of the insolvent laws, and dismissed the
bill. The assignees subsequently brought
an action of trover against one of the re-
spondents in the equity suit, for the same
property, and it was held that the decree
in that suit was a bar to the action of
trover. Bigelow v. Winsor, 1 Gray, 299,
303 ; Shaw, C. J., in deUvering the opin-
ion of the court in this case, said : " One
valid judgment by a court of competent
jurisdiction, between the same parties,
upon considerations as well of justice as
of public policy, is held to be conclusive,
except where a review, an appeal, or re-
hearing in some form, is allowed and reg-
ulated by law. No man is to be twice
vexed with the same controversy. In-
terest reipuUiccB ut finis sit litium.
" To ascertain whether a past judg-
ment is a bar to another suit, we are to
consider, first, whether the subject-matter
of legal controversy, which is proposed to
be brought before any court for adjudica-
tion, has been drawn in question, and
witliin the issue of a former judicial pro-
r'eeding, which has terminated in a regu-
lar judgment on the merits, so that the
whole question may have been determined
by that adjudication; secondly, whether
the former litigation was between the
same parties, in the same right of ca-
pacity litigating in the subsequent suit,
or their privies respectively, claiming
through or under them, and bound and
estopped by that which would bind and
estop those parties ; and, tliirdly, whether
the former adjudication was had before a
court of competent jurisdiction to hear
and decide on the whole matter of contro-
versy, embraced in the subsequent suit.
" It is no objection that the former suit
embraced more subjects of controversy,
or more matter than the present ; if the
entire subject of the present controversy
was embraced in it, it is sufficient, it ia
res judicata.
" Nor is it necessary that the parties
should be in all respects the same. If by
law a judgment could have been given in
that suit for this plaintiff against this de-
fendant, for the present cause of action, it
has passed into judgment. Suppose tres-
pass for assault and battery against five,
and verdict and judgment for all the de-
fendants ; then a new suit for the same tres-
pass, by the same plaintiff, against one of
the defendants, the former judgment is a
good bar. In actions of tort, tlie cause of
action is several, as well as joint ; and if,
upon the evidence, one defendant was
chargeable with the trespass, a verdict and
judgment might have been rendered
against him severally in the first suit, al-
though the other defendants had a verdict.
" Nor is it essential, that the two tri-
bunals should have the same jurisdiction
in other respects, provided tlie court was
of competent jurisdiction to .adjudicate
upon the entire matter in controversy, in
the subsequent suit. Whetlier it be a
court of law or equity, of admiralty or of
probate, if in the matter in controversy
between the parties, witli tlie same object
in view, that of remedy between them,
the court had jurisdiction to decidCj it is
a legal adjudication binding on these
parties."
To render a former judgment between
the same parties admissible in evidence in
another action pending between tliem, it
must appear that the fact sought to ba
48*
570
LAW OP EVIDENCE.
[part in.
cause of action cannot be the same in both, no averment will be
received to the contrary. Therefore, in a writ of right, a plea in
proved by the record, was actually passed
upon by the jury in finding their verdict
in the Ibrmer suit. It is not necessary
that it should have been directly and spe-
cifically put in issue by the pleadings ;
but it is sufiicient if it is shown that the
question which was tried in the former
action between the same parties is again
to be tried and settled, in the suit in
which the former judgment is offered in
evidence. And parol evidence is admissi-
ble to show that the same iact was sub-
mitted to, and passed upon by, the jury in
the former action; because, in many
cases, tlie record is so general in its char-
acter, tliat it could not be known, without
the aid of such proof, what the precise
matter of controversy was at the trial of
the former action. Thus, where the fact
sought to be establislied by the plaintiffs
in a suit is the existence of a copartner-
ship between the defendants, under a
certain name, a former judgment recov-
ered by the same plaintiffs against the
same defendants, as copartners, -under
such name, on a note given at the same
time with the one in suit, is admissible,
although not conclusive evidence, of that
fact. Uutton v. Woodman, 9 Cush. 255,
261. Eastman v. Cooper, 15 Pick. 276,
279, 285. But in an action of replevin for
a piano, a former judgment between the
same parties, in an action of trespass qumre
claasum, in which the talcing-away of the
same piano was alleged by way of aggrar
vation, is not conclusive as to the owner-
ship of the piano ; as the question of tlie
title to the piano was only indirectly in-
volved. Gilbert v. Thompson, 9 Cush.
348, 350 ; Potter v. Baker, 19 N. H. 166.
Lamprey v. Nudd, 9 Foster, 299. A
judgment for the demandant in a real
action with possession taken under it, will
preclude the tenant in that action from
afterwards asserting against such demand-
ant any personal property in the build-
ings which he had erected on the land.
Doak V. Wiswell, 33 Maine, 355. See
Small V. Leonard, 26 Verm. 209 ; Morgan
v. Barker, lb. 602; Briggs v. Wells, 12
Barb. 567. A sued out a writ of entry to
foreclose a mortgage given by B to secure
tlie payment of five promissory notes.
B defended, pleading the general issue,
and specifying certain grounds of defence.
A trial was had, and a verdict found for A
upon which conditional judgment was
subsequently rendered for him ; and the
amount thereof not being paid, A took
possession of the mortgaged premises.
Pending the foregoing proceedings, A
brought an action ^igainst B on one of the
five promissory notes, and B put in his
answer, defending on the same grounds
as he had defended the action on the
mortgage. The suit on the note came to
trial after judgment was entered in the for-
mer action ; and it was held, that B was
estopped by said judgment from again
avaihng himself of the grounds of de-
fence upon which he had before insisted.
Burke v. Miller, 4 Gray, 114, 116. See
also Sargent v. Fitzpatrick, lb. 511, 514.
A contracted with B to forward and de-
liver certain goods belonging to A. B
intrusted them to a carrier, who failed to
deliver them. A brought trover against
the carrier; and the carrier obtained in
this action a judgment on the merits
against A. B also sued the carrier for
the non-delivery of the goods, and it was
held that the judgment in the suit brought
by A was a bar to the suit by B. Greene
V. Clarke, 2 Kernan, 343. To an action
by A against B on a promissory note
given by B to A in payment for goods, B
pleaded want of consideration by reason
of false representations of A concerning
the value of such goods. A recovered
judgment for part only of the note. It
was held that this was a bar to a subse-
quent action brought by B against A to
recover damages for such false representa-
tions. Burnett v. Smith, 4 Gray, 50. In
replevin by a tenant against his landlord,
who had distrained for rent in arrear, it
was held that a verdict in summary pro-
ceedings instituted by the landlord, to re-
move the tenant for default in the payment
of rent, that no rent was due, was conclu-
sive on that point — the same rent being
in question in both proceedings. White
V. Coatsworth, 2 Selden, N.Y. 137. An
action brought for a part of an entire and
indivisible demand, and a recovery there-
in, will bar a subsequent suit for the
residue of the same demand. Staples v.
Goodrich, 21 Barb. 317. Warren v.
Comings, 6 Cush. 403.
Where it appears at atrial in this state
(New York), that in a former suit be-
tween the same parties in a sister state,
the causes of action here specially de-
clared on and all growing out of tlie same
subject-matter, could have been proved in
that suit, and that the same proof ofiered
here was, in the former suit, properly in-
troduced and considered on the mnrits,
and judgment rendered fortlie defendant,
such judgment is a bar to the second suit
Baker v. Hand, 13 Bai;b. 162.]
CHAP. T.J EBCOEDS AND JUDICIAL WEITINGS. 571
bar that the same title had been the sole subject of litigation in a
former action of trespass quare clausum fregit, or in a former writ
of entry, between the same parties, or others privy in estate, was
held to be a bad plea.^ Whether the judgment in an action of
trespass, upon the issue of liherum tenementum, is admissible in
a subsequent action of ejectment between'the same parties, is not
perfectly clear ; but the weight of American authority is in favor
of admitting the evidence.^
§ 533. The effect of former recovery has been very much dis-
cussed, in. the cases where different actions in tort have successively,
been Irought, in regard to the same chattel ; as, for example, an
action of trover, brought after a judgment in trespass. Here, if
title to the property was set up by the defendant in the first action,
and it was found for him, it is clearly a bar to a second action for
the same chattel ; ^ even though brought against one not a party
to the former suit, but an accomplice in- the original taking.* So,
a judgment for the defendant in trover, upon trial of the merits,
is a bar to an action for money had and received, for the money
arising from the sale of the same goods.'^ But, whether the plain-
tiff, having recovered judgment in trespass, without satisfaction,
is thereby barred from afterwards maintaining trover against
another person for the same goods, is a point upon which there
has been great diversity of opinion. On the one hand it is said
that, by the recovery of judgment in trespass for the full value,
the title to the property is vested in the defendant, the judgment
being a security for the price ; and that the plaintiff cannot take
them again, and therefore cannot recover the value of another.^
On the other hand, it is argued, that the rule- of transit in rem
judicatam extends no farther than to bar another action for the
same cause against the same party ; "> that, on principle, the origi-
nal judgment can imply nothing more than a promise by the
defendant to pay the amount, and an agreement by the plaintiff
1 Arnold v. Arnold, 17 Pick. 4 ; Bates * Ferrers v. Arden, Cro. El. CG8 ; 6
V. Tliompson, Id. l4, n. ; Bennett v. Co. 7, s. c.
Holmes, 1 Uev. & Bat. 486. ^ Kitchen v. Campbell, 3 Wils. 301; 2
2 Hocy V. Furman, 1 Barr, 295. And W. Bl. 827, s. c.
see Meredith v. Gilpin, 6 Price, 146 ; Kerr '^ Broome v. Wooton, Yelv. 67 ; Ad-
V. Chess, 7 Watts, 371 ; Foster v. Mc- ams v. Broughton, 2 Stra. 1078 ; Andrews
Divit, 9 Watts 349. 18, s. c. ; White v. Philbrick, 5 Greenl.
8 Putt V. Roster, 2 Mod. 218 ; 3 Mod. 147 ; Rogers v. Thompson, 1 Rice, 60.
1, B.C. nom. Putt V. Rawstern, see 2 ' Drake v. Mitchell, 3 East, 258;
Show. 211 ; Skin. 40, 57 ; T. Raym. 472, Campbell v. Phelps, 1 Pick. 70, peJ
8. c. [See also Greely v. Smith, 3 W. & Wilde. J.
M. 236.1
572
LAW OP BVIDBNCE.
[PAET m.
that, iipon payment of the money by the defendant, the chattel
shall be his own ; and that it is contrary to justice and the analo-
gies of the law, to deprive a man of his property without satisfac-
tion, unless by his express consent. Solutio pretii emptionis loco
hahetur. The weight of authority seems in favor of the latter
opinion. 1
§ 534. It is not necessary, to the conclusiveness of the former
judgment, that issue should have been taken upon the precise point
which is controverted in the second trial ; it is sufficient, if that
point was essential to the finding of the former verdict. Thus,
where the parish of Islington was indicted and convicted for not
repairing a certain highway, and afterwards the parish of St.
Pancras was indicted for not repairing the same highway, on the
ground, that the line dividing the two parishes ran along the mid-
dle of the road ; it was held, that the former record was admissible
and conclusive evidence for the defendants in the latter case, to
show that the road was wholly in Islington ; for the jury must
have found that it was so, in order to find a verdict against the
defendants.^
^ Putt V. Eawstern, 3 Mod. 1 ; Jenk.
Cent. p. 189; 1 Shep. Touchst. 227;
More V. Watts, 12 Mod. 428; 1 Ld.
Eayin. 614, s. c. ; Luttrell v. Keynell, 1
Mod. 282; Bro. Abr. tit. Judgm. pi. 98;
Moreton's t;ase, Cro. El. 30; Cooke v.
Jenner, Hob. 66 ;' Livingston v. Bishop, 1
Johns. 290 ; Rawson v. Turner, 4 Johns.
425; 2 Kent, Comm. 388; Curtis v.
Groat, 6 Johns. 168 ; Corbett et al. v.
Barnes, W. Jones, 377 ; Cro. Car. 443 ;
7 Vin. Abr. 341, pi. 10, s.c. ; Barb v.
Fish, 5 West. Law Journ. 278. The fore-
going a\itliorities are cited as establishing
princijiles in opposition to the doctrine of
Broome v. Woo ton. The following cases
are direct adjudications to the contrary
of that case. Sanderson v. Caldwell, 2
Aiken, 195; Osterhout v. lloberts, 8
Cowen, 43 ; Elliott v. Porter, 5 Dana,
299. See also Campbell v. Phelps, 1
Pick. 70, per Wilde, J. ; Claxton v. Swift,
2 Show. 441, 494; Jones v. McNeil, 2
Bail. 466 ; Cooper v. Shepherd, 2 U. G.
&, S. 266. The just deduction from all
the autliorities, as well as the right con-
clusion upon principle, seems to be this,
— that the /i(rf(/?«en( in trespass or trover
will not transfer the title of the goods to
the defendant, although it is pleadable in
bar of any action afterwards brought by
the same plaintiff, or those in privity
with him, against the same defendant, or
those in privity with him. See 3 Am.
Law Mag. pp. 49-57. And as to the origi-
nal parties, it seems a just rule, applicable
to all personal actions, that wherever two
or more are liable jointly and not severally,
a judgment against one, though without
satisfaction, is a bar to another action
against any of- the others for the same
cause ; but it is not a bar to an action
against a stranger. As far as an action iu
the form of tort can be said to be exclu-
sively joint in its nature, this rule may
govern it, but no farther. This doctrine,
as applicable to joint contracts, has been
recently discussed in England, in the case
of liing V. Hoare, 13 M. & W. 494, in
which it was held that the judgment
against one alone was a bar to a subse-
quent action against the other.
^ Eex V. St. Pancras, Peake's Cas.
219; 2 Saund. 159, note (10), by Wil-
liams. And see Andrews v. Brown, 3
Cush. 130. So, where, upon a (■.<i-.nplai:it
for flowing the plaintiff's lands, under a
particular statute, damages were awarded
for the past, and a prospective assessment
of damages made, for the future flovvage ;
upon a subsequent application for an in-
crease of the assessment, the defendant
was precluded from setting up a right in
himself to flow the land, for the right
must necessarily have been determined in
tlie previous proceedings. Adams a
CHAr. v.] EECORDS AND JUDICIAL WEITINGS. 573
§ 535. "We have already observed, in general, that parties in the
larger legal sense, are all persons having a right to control the pro-
ceedings, to make defence, to adduce and cross-examine witnesses,
and to appeal from the decision, if any -appeal lies. Upon this
ground, the lessor of the plaintiff in ejectment, and the tenant,
are the real parties to the suit, and are concluded in any future
action in their own names, by the judgment in that suit.i So, if
there be a trial between B.'s lessee and E., who recovers judg-
ment; and afterwards another trial of title to the same lands,
between E.'s lessee and B., the former verdict and judgment will
be admissible in evidence in favor of E.'s lessee against B. ; for
the real parties in both cases were B. and E.^
§ 536. The case of privies, which has already been mentioned,
is governed by principles similar to those which have been stated
in regard to admissions ; ^ the general doctrine being this, that the
person who represents another, and the person who is represented,
have a legal identity ; so that whatever binds the one, in relation
to the subject of their common interest, binds the other also.
Thus, a verdict and judgment for or against the ancestor bind the
heir.* So, if several successive remainders are limited in the same
deed, a judgment for one remainder-man is evidence for the next
in succession.^ But a judgment, to which a tenant for life was a
party, is not evidence for or against the reversioner, unless he
came into the suit upon aid prayer.^ So, an assignee is bound by
a judgment against the assignor, prior to the assignment.'' There
is the like privity between the ancestor and all claiming under him,
not only as heir, but as tenant in dower, tenant by the courtesy,
legatee, devisee, &c.^ A judgment of ouster, in a quo warranto,
against the incumbent of an -office,, is conclusive evidence against
Eearson, 7 Pick. 341. [*The judgment ia trespass against one who justifies as the
conclusive, not only as to the precise fects servant of J. S. is evidence against an-
involved directly in the former issue, hut other defendant in another action, it ap-
as to all facts incidentally involved, and pearing that he also acted by the com-
which were in fact passed upon, as the mand of J. S., who was considered the
foundation of the former decision. Eeg. real party in both cases. Kinnersly v.
V. Hartington, 4 EUis & Bl. 780.1 Orpe, 2 Doug. 617 ; 1 Doug. 56.
1 Doe V. Huddart, 2 Cr. M. & E. 316, » Supra, §§ 180, 189, 523.
322; Doe v. Preece, 1 Tyrw. 410; Ashn * Locke v. Norborne, 3 Mod, 141.
V. Parkin, 2 Burr. 665; Wright v. "^ jjuU. N. P. 232 ; Pyke w. Crouch, 1
Tatham, 1 Ad. & El. 3, 19 ; Bull. N. P. Ld. Raym. 730.
232 ; Graves v. Joice, 5 Cowen, 261, and « Bull. N. P. 232.
cases there cited ; [Amick v. Oyler, 26 " Adams v. Barnes, 17 Mass. 365.
Penn. St. E. 600'.] ' Locke v. Norborne, 3 Mod. 141 ;
2 Bull. N. P. 232 ; Calhoun v. Dun- Outram v. Morewood, 8 East, 353.
Ding, 4 Dall. 120. So, a judgment in
574 LAW OF EVIDENCE. [PAET IH.
those who derive their title to office under him.^ Where one sued
for diverting water from liis works, and had judgment ; and after-
wards he and another sued the same defendants for a similar
injury; the former judgment was held admissible in evidence
for the plaintiffs, being primd facie evidence of their privity in
estate with the plaintiff in the former action.^ The same rule
applies to all grantees, they being in like manner bound by a
judgment concerning the same land, recovered by or against their
grantor, prior to the conveyance.^
§ 537. Upon the foregoing principles, it is obvious that, as a
general rule, a verdict and judgment in a criminal case, though
admissible to establish the fact of the mere rendition of the judg-
ment, cannot be given in evidence in a civil action, to establish the
facts on which it was rendered.^ If the defendant was convicted,
it may have been upon the evidence of the very plaintiff in the
civil action ; and if he was acquitted, it may have been by collu-
sion with the prosecutor. But beside this, and upon more general
grounds, there is no mutuality ; the parties are not the same ;
neither are the rules of decision and the course of proceeding the
same. The defendant could not avail himself, in the criminal
trial, of any admissions of the plaintiff in the civil action ; and,
on the other hand, the jury in the civil action must decide upon
the mere preponderance of evidence ; whereas, in order to a crimi-
nal conviction, they must be satisfied of the party's guilt, beyond
any reasonable doubt. The same principles render a judgment in
a civil action inadmissible evidence in a criminal prosecution.^
1 Rex V. Mayor, &c. of York, 5 T. E. have laid much stress upon the question,
66, 72, 76 ; Bull. N. P. 231 ; Eex v. Heb- whether the plaintiff in the civil action
den, 2 Stra. 1109, n. (1). was or was not a witness on the indiot-
2 Blakemore v. Glamorganshire Canal ment. Upon which Parke, B., in Blake-
Co. 2 C. M. & 11. 133. more v. Glamorganshire Canal Co. 2 C. M.
8 Foster v. E. of Derby, 1 Ad. & El. & R. 139, remarked as foUows : " The
787, per Llttledale, J. case being brought within the general
* Mead v. Boston, 3 Cush. 404. In rule, that a verdict on the matter hi issue
one case it was held, that the deposition is evidence for and against parties and
of a witness, taken before the coroner, on privies, no exception can be allowed in
an inquiry touching the death of a person the particular action, on the ground that a
killed by a coUision between two vessels, circumstance occurs in it, which forms
was receivable in evidence, in .an action one of the reasons why verdicts between
for the (negligent management of one of different parties are held to be inadmissible,
them, if the witness be shown to be be- any more than the absence of all such cir-
yond sea. Sills v. Brown, 9 C. & P. 601, cumstances, in a particular case, would be
per Coleridge, J. But qucere, and see 2 allowed to form an exception to the gene-
Phil. Evid. 74, 75 ; infra, § 553. ral rule, that verdicts between other par-
^ 1 Bull. N. P. 233 ; Eex v. Boston, 4 ties cannot be received. It is mucb
East, 572 ; Jones v. White, 1 Stra. 68, per wiser, and more convenient for the ad-
Fratt, J. Some of the older authorities ministratiou of justice, to abide as mu(^
CHAP, v.] RECORDS AND JUDICIAL WRITINGS. 575
§ 538. But, as we have before remarked,^ the verdict and judg-
ment in any case are always admissible to prove the fact, that the
judgment was rendered, or the verdict given ; for there is a material
difference between proving the existence of the record and its
tenor, and using the record as the medium of proof of the matters
of fact recited in it. In the former case, the record can never be
considered as res inter alios acta; the judgment being a public
transaction, rendered by public authority, and being presumed to
be faithfully recorded. It is therefore the only proper legal evi-
dence of itself, and is conclusive evidence of the fact of the rendi-
tion of the judgment, and of all the legal consequences resulting
from that fact, whoever may be the parties to the suit in which it
is offered in evidence. Thus, if one indicted for an assault and
battery has been acquitted, and sues the prosecutor for malicious
prosecution, the record of acquittal is evidence for the plaintiff, to
establish that fact, notwithstanding the parties are not the same.
But if he were convicted of the offence, and then is sued in tres-
pass for the assault, the record in the former case would not be
evidence to establish the fact of the assault ; for, as to the matters
involved in the issue, it is res inter alios acta.
§ 539. The distinction between the admissibility of a judgment
as a fact, and as evidence of ulterior facts, may be further illus-
trated by the instances in which it has been recognized. Thus, a
judgment against the sheriff for the misconduct of his deputy is
evidence against the latter of the fact, that the sheriff has been
compelled to pay the amount awarded, and for the cause alleged ;
but it is not evidence of the fact upon which it was founded,
as possible by general rules." A record davit, in which the defendant had sworn
of judgment in a criminal case, upon a that the prosecutor was indebted to him
plea of " guilty," is admissible in a ciril in £40, and the civil suit being submitted
action against the party, as a solemn judi- to arbitration, the arbitrator awarded that
cial confession of the fact ; and, accord- nothing was due, the award was offered in
ing to some authorities, it is conclusive, evidence against the prisoner, as proof of
But its conclusiveness has since been the falsity of his affidavit ; but the court
doubted ; for the plea may have been held it as merely the declaration of the
made to avoid expense. See Phil. & Am. arbitrator's opinion, and therefore not ad-
ouEvid. 523, n. (4); 2 Phil. Evid. 25; missible in a criminal proceeding. [The
Bradley v. Bradley, 2 Fairf 367; Regina record of the conviction of a thief, on liis
V. Morcau, 12 Jur. 626 ; 11 Ad. & El. plea of " g'uilty " to an indictment against
1028, N. s. ; Clark v. Irvin, 9 Ham. 131. him alone for stealing certain properly, is
But the plea of nolo contendere is an admis- not admissible in evidence to prove the
sion for that trial only, and Is not ad- theft, on the trial of a receiver of that
missible in a subsequent action. Com- property, upon an indictment against him
mouwealth v. Horton, 9 Pick. 206 ; Guild alone, which indictment does not aver
V. Lee, 3 Law Reporter, p. 423 ; supra, §§ that the thief has been convicted. Com-
179, 216. In Regina v. Moreau, which monwealth v. Elisha, 3 Gray, 460.]
wa« an indictment for perjury in an affi- ^ Supra, § 527.
676 LAW OF EVIDENCE. [PAM HI.
namely, the misconduct of the deputy, unless he was notified of
the suit and required to defend it.^ So it is in other cases, where
the officer or party has a remedy over.^ So, where the record is
matter of inducement, or necessarily introductory to other evi-
dence ; as, in an action against the sheriff for neglect, in regard to
an execution ; ^ or to show the testimony of a witness upon a
former trial ; * or where the judgment constitutes one of the muni-
ments of the party's title to an estate ; as, where a deed was made
under a decree in chancery ,5 or a sale was made by a sheriff, upon
an execution.^ So, where a party has concurrent remedies against
several, and has obtained satisfaction upon a judgment against
one, it is evidence for the others.^ So, if one be sued alone,
upon a joint note by two, it has been held, that the judgment
against him may be shown by the defendants, in bar of a second
suit against both, for the same cause, to prove that, as to the
former defendant, the note is extinct.^ So a judgment inter alios
is admissible, to show the character in which the possessor holds
his lands.^
§ 539a. But where the contract is several as well as Joint, it
seems that the judgment in an action against one is no bar to a
subsequent action against all ; nor is the judgment against all,
jointly, a bar to a subsequent action against one alone. For when
a party enters into a joint and several obligation, he in effect
agrees that he will be liable to a joint action, and to a several
action for the debt. In either case, therefore, the bar of a former
judgment would not seem to apply ; for, in a legal sense, it was
not a judgment between the same parties, nor upon the same con-
tract. The contract, it is said, does not merely give the obligee
an election of the one remedy or the other, but entitles him at
once to both, though he can have but one satisfaction.^"
1 Tyler v. Ulmer, 12 Mass. 166, per ' Ward v. Johnson, 13 Mass. 148. See
Parker, C. J. also Lechmere v. Fletcher, 1 C. &. M.
2 Kip V. Brighara, 6 Johns. 158 ; 7 623, 634, 635, per Bayley, B.
Johns. 168 ; Griffin v. Brown, 2 Pick. ^ Davis v. Loundes, 1 Bing. n. c. 607
804 ; Weld v. Nichols, 17 Pick. 538 ; per Tindal, C. J. See further, supra, §
Headu. McDonald, 7 Monr. 203. 527a,- Wells v. Compton, 3 Eob. Louis.
» Adams v. Balch, 5 Greenl. 188. E. 171.
* Clarges v. Slierwin, 12 Mod. 343; i" The United States v. Cushman, 2
Foster v. Shaw, 7 S. & K. 156. Sumn. R. 426, 437-441, per Story, J. See
s Barr v. Gratz, 4 Wheat. 213. also Sheehy v. Mandeville, 6 Cranch. 253,
8 Witmer v. Schlatter, 2 Rawle, 359 ; 265 ; Lechmere v. Fletcher, 1 C. & M.
Jackson c Wood, 3 Wend. 27, 34 ; Fowler 623, 634, 635, per Bayley, B. ; [liirkpat-
V. Savage, 3 Conn. 90, 96, rick v. Stingley, 2 Carter, 269.1
' FarweU v. HUliard, 3 N. Hamp. 318.
CHAP. V.J RECORDS AND JUDICIAL WRITINGS. 577
§ 540. In regard to foreign judgments, they are usually consid-
ered in two general aspects : first, as to judgments in rem ; and,
secondly, as to judgments in personam. The latter are again
considered under several heads : first, where the judgment is set
up by way of defence to a suit in a foreign tribunal ; secondly,
whore it is sought to be enforced in a foreign tribunal against the
original defendant, or his property ; and, thirdly, where the judg-
ment is either between subjects, or between foreigners, or between
foreigners and subjects.^ But, in order to found a proper ground
of recognition of a foreign judgment, under whichsoever of these
aspects it may come to be considered, it is indispensable to
establish, that the court which pronounced it had a lawful juris-
diction over the cause, over the thing, and over the parties. If
the jurisdiction fails as to either, it is treated as a mere nullity,
having no obligation, and entitled to no respect beyond the domes-
tic tribunals.^
§ 541. As to foreign judgments in rem, if the matter in con-
troversy is land, or other immovable property, the judgment pro-
nounced in the forum rei sitce is held to be of universal obligation,
as to all the matters of right and title which it professes to decide
in relation thereto.^ "The same principle," observes Mr. Jus-
tice Story,* "is applied to all other cases of proceeding in rem,
where the subject is movable property, within the jurisdiction of
the court pronouncing the judgment.^ Whatever the court settles
as to the right or title, or whatever disposition it makes of the
property by sale, revendication, transfer, or other act, will be held
valid in every other country, where the same question comes
directly or indirectly in judgment before any other foreign tri-
bunal. This is very familiarly known in the cases of proceedings
in rem in foreign courts of admiralty, whether they are causes of
1 In what ft)llows on the subject of < in favor of the superior courts, in a, state
foreign judgments, I haye simply tran- or country, in their own tribunals. Gra-
Bcribed and abridged what has recently ham v. Whitely, 2 Dutcher, 254; Gould-
been written by Mr. Justice Story, in liis ing v. Clark, 34 N. H. 148. But where
learned Commentaries on the Conflict of the question of jurisdiction is established.
Laws, ch. 15 (2d edit.). the same favorable presumption should be
" Story, Confl. Laws, §§ C84, 586 ; applied to all judgments. State v. Hinch-
Ilose V. llimely, 4 Cranch, 269, 270, per man, 27 Penn. St. 479.]
Marshall, C. J. ; Smith v. Knowlton, 11 s gtory, Confl. Laws, §§ £32, 545, 551,
N. Ilamp. R. 191; Eangely v. Webster, 591.
Id. 299. [* There seems to be no such * Story, Confl. Laws, § 592. Sea also
presumption in favor of the jurisdiction of Id. § 597.
foreign courts, or of inferior domestic tri- ' See Kames on Equity, B. 3, ch. 8,
bunals, according to the maxim omnia prce- § 4.
tumuntur rile esse acta, as that wliich exists
VOL. I 49
578 LAW OP ETIDBNCE. [PART III.
prize, or of bottomry, or of salvage, or of forfeiture, or of any
of the like nature, over which such courts have a rightful juris-
diction, founded on the actual or constractive possession of the
subject-matter.^ The same rule is applied to other courts pro-
ceeding in rem, such as the court of excheqiier in England, and
to other courts exercising a like jurisdiction in rem upon seizures.^
And in cases of this sort it is wholly immaterial whether tho
judgment be of acquittal or of condemnation. In both cases it is
equally conclusive.^ But the doctrine, however, is always to be
understood with this limitation, that the judgment has been
obtained bond fide and without fraud ; for if fraud has intervened,
it will doubtless avoid the force and validity of the sentence.* So
it must appear that there have been regular proceedings to found
the judgment or decree ; and that the parties in interest in rem
have had notice, or an opportunity to appear and defend their
interests, either personally, or by their proper representatives,
before it was pronounced ; for the common justice of all nations
requires that no condemnation shall be pronounced, before the
party has an opportunity to be heard." ^
§ 642. Proceedings also by creditors against the personal prop-
erty of their debtor, in the hands of third persons, or against debts
due to him by such third persons (commonly called the process
of foreign attachment, or garnishment, or trustee process^ , are treated
as in some sense proceedings in rem, and are deemed entitled to
1 Croudson v. Leonard, 4 Cranch, 433; contrary to the laws of nations ; 3 B. & P.
Williams v. Armroyd, 7 Cranch, 423 ; 215, per Ld. Alyanley, C. J. ; or, if there
Rose V. Himely, 4 Cranch, 241 ; Hudson be any ambiguity as to what was the
V. Guestier, 4 Cranch, 293 ; The Mary, 9 ground of condemnation ; it is not conclu-
Cranch, 126, 142-146 ; 1 Stark. Evid. pp. sive. Dalgleish v. Hodgson, 7 Bing. 495,
246, 247, 248; Marshall on Insur. B. 1, 504.
oh. 9, § 6, pp. 412, 435 ; Grant v. McLach- " Ibid. ; 1 Stark, on Evid. pp. 228-232,
lin, 4 Johns. 34 ; Peters v. The Warren 246, 247, 248 ; Gelston v. Hoyt, 3 Wheat-
Ins. Co. 3 Sumner, 389 ; Bland v. Bam- on, 246 ; Williams v. Armroyd, 7 Cranch,
field, 3 Swaust. 604, 605 ; Bradstreet v. 423.
Neptune Insur. Co. 3 Sumner, 600; Ma- " Ibid.
goun V. New England Insur. Co. 1 Story, * Duchess of Kingston's case, 11 State
B. 157. The different degrees of credit Trials, pp. 261, 262; s. o. 20 Howell,
given to foreign sentences Of condemna- State Trials, p. 355 ; Id. p. 538, the opin-
tion in prize causes, by the American state ion of the judges ; Bradstreet v. The Nep-
courts, are stated in 4 Cowen, R. 520, tune Insur. Co. 3 Sumner, 600 ; Magoun
note 3. 1 Stark. Evid. 232 (6th edit.), v. The New England Insur. Co. 1 Storj-,
notes by Metealf. See also 2 Kent, Comm. R. 157. If the foreign court is constituted
120, 121. If a foreign sentence of con- by persons interested in the matter in dis-
demnation as prize is manifestly errone- pute, the judgment is not binding. Price
ous, as if it professes to be made on v. Dewhurst, 8 Sim. 279.
particular grounds, which are set forth, * Sawyer v. Maine Fire and Mar. Ins.
but which plainly do not warrant the de- Co. 12 Mass. 291 ; Bradstreet v. The Nep-
cree ; Calvert v. Bovil, 7 T. R. 523 ; Pol- tune Ins. Co. 8 Sumner, 600 ; Magoun v.
lard V. Bell, 8 T. R. 444 ; or, on grounds N. England Insur. Co., 1 Story. R. 157.
CHAP. T.] RECORDS AND JUDICIAL WRITINGS. 579
the same consideration.^ But in this last class of cases we are
especially to bear in mind, that, to make any judgment effectual,
the court must possess and exercise a rightful jurisdiction over the
res, and also over the person, at least so far as the res is concerned ;
otherwise it will be disregarded. And if the jurisdiction over the
res be well founded, but not over the person, except as to the res,
the judgment will not be either conclusive or binding upon the
party in personam, although it may be in rem?
§ 643. In all these cases the same principle prevails, that the
judgment, acting in rem, shall be held conclusive upon the title and
transfer and disposition of the property itself, in whatever place
the same property may afterwards be found, and by whomsoever
the latter may be questioned ; and whether it be directly or inci-
dentally brought in question. But it is not so universally settled,
that the judgment is conclusive of all points which are incidentally
disposed of by the judgment, or of the facts or allegations upon
which it professes to be founded. In this respect, different rules
are adopted by different states, both in Europe and in America.
In England, such judgments are held conclusive, not only in rem,
but also as to all the points and facts which they professedly or
incidentally decide.^ In some of the American states the same
doctrine prevails. While in other American states, the judgments
are held conclusive only in rem, and may be controverted as to all
the incidental grounds and facts on which they profess to be
founded.*
§ 544. A similar doctrine has been contended for, and in many
cases successfully, in favor of sentences which touch the general
capacity of persons, and those which concern marriage and divorce.
1 See cases cited in 4 Cowen, K. 520, the plaintiff and others. The property
521, n. ; Story, Confl. Laws, § 549 ; was seized and condemned in the Danish
Holmes v. Remsen, 20 Johns. 229 ; Hull courts. Lord Nottingham held the sen-
V. Blake, 13 Mass. 153; McDaniel v. tence conclusive against the suits and
Hughes, 3 East, 366 ; Phillips v. Hunter, awarded the injunction accordingly.
2 H. Black. 402, 410. * Story, Confl. Laws, § 593. See 4
^ Story, Confl. Laws, § 592 a. See Cowen, B. 522, n. and cases there cited ;
also Id. § 549, and note ; Bissell v. Briggs, Vandenheuvel v. U. Insur. Co. 2 Cain.
9 Mass. 498 ; 3 Burge, Comm. on Col. Cases in Err. 217 ; 2 Johns. Cases, 451 ;
& For. Law, pt. 2, ch. 24, p. 1014-1019. Id. 481 ; Robinson v. Jones, 8 Mass. 536 •
2 In Blad v. Bamfield, decided by Lord Maley v. Shattuck, 3 Cranch, 488 ; ?
Nottingham, and reported in 3 Swanst. Kent, Comm. Lect. 37, pp. 120, 121, 4t"u
604, a perpetual injunction was awarded edit., and cases there cited ; Tarlton v,.
to restrain certain suits of trespass and Tarlton, 4 M. & Selw. 20 ; Peters v. War-
trover for seizing the goods of the defen- ren Insur. Co. 3 Sumn. 389 ; GelstOTj v.
dant (Bamfield) for trading in Iceland, Hoyt, 3 Wheat. 246.
contrary to certain privileges granted to
580 LAW OF EVIDENCE. [PART HI.
Foreign jurists strongly contend that the decree of a foreign court,
declaring the state , (sto^ws) of a person, and placing him, as an
idiot, or a minor, or a prodigal, under guardianship, ought to be
deemed of universal authority and obligation. So it doubtless
■would be deemed, in regard to all acts done within the jurisdiction
of the sovereign whose tribunals pronounced the sentence. But
in the United States the rights and powers of guardians are con-
sidered as strictly local ; and no guardian is admitted to have any
right to receive the profits, or to assume the possession of the real
estate, or to control the person of his ward, or to maintain any
action for the personalty, out of the states, under whose authority
he was appointed, without having received a due appointment from
the proper authority of the state, within which the property is
situated, or the act is to be done, or to whose tribunals resort is to
be had. The same rule is also applied to the case of executors and
administrators }
§ 545. In regard to marriages, the general principle is, that
between persons sui juris, marriage is to be decided by the law
of the place where it is celebrated. If valid there, it is valid every-
where. It has a legal ubiquity of obligation. If invalid there, it
is invalid everywhere. The most prominent, if not the only known
exceptions to this rule, are marriages involving polygamy and
incest; those prohibited by the public law of a country from
motives of policy; and those celebrated in foreign countries by
subjects entitling themselves, under special circumstances, to the
benefit of the laws of their own country.^ As to sentences con-
firming marriages, some English jurists seem disposed to concur
with those of Scotland and America, in giving to them the same
conclusiveness, force, and effect. If it were not so, as Lord Hard-
wicke observed, the rights of mankind would be very precarious.
But others, conceding that a judgment of a third country, on the
validity of a marriage not within its territories, nor had between
subjects of that country, would be entitled to credit and attention,
deny that it would be universally binding.^ In the United States,
1 Story, Confl. Laws, §§ 499, 504, 594 ; [See post, vol. 2 (7th edit.), § 460-464, tit.
Morrell v. Dickey, 1 Johns, ch. 153 ; Maebiage.]
Kraft V. Wickey, 4 G. & J. 332 ; Dixon v. s Roach v. Garran, 1 Ves. 157 ; Story,
Kamsay, 3 Cranch, 319. See, as to for- Confl. Laws, §§ 695, 596 ; Sinclair v. Sin-
eign executors and administrators. Story, clair, 1 Hagg. Consist. R. 297 ; Scrim-
Confl. Laws, § 513-523; \supra, § 525, shire v. Scrimshire, 2 Hagg. ConsUt R.
and notes.] 895, 410.
2 Story, Confl. Laws, §§ 80, 81, 113.
CHAP. V.J EECORDS AND JUDICIAL WEiriNGS. 581
however, as well as in Scotland, it is firmly held, that a sentence
of divorce, obtained bond fide and without fraud, pronounced
between parties actually domiciled in the country, whether native?
or foreigners, by a competent tribunal, having jurisdiction over the
case, is valid, and ought to be everywhere held a complete dissolu-
tion of the marriage, in whatever country it may have been origi-
^nally celebrated.^
§ 546. " In the next place, as to judgments in personam which
are sought to he enforced by a suit in a foreign tribunal. There
has certainly been no inconsiderable fluctuation of opinion in the
English courts upon this subject. It is admitted on all sides, that,
in such cases, the foreign judgments are primd facie evidence to
sustain the action, and are to be deemed right until the contrary
is established ; ^ and of course, they may be avoided, if they are
founded in fraud, or are pronounced by a court not having any
competent jurisdiction over the cause.^ But the question is,
whether they are not deemed conclusive ; or whether the defendant
is at liberty to go at large into the original merits, to show that the
judgment ought to have been different upon the merits, although
obtained hond fide. If the latter course be the correct one, then
a still more embarrassing consideration is, to what extent, and in
what manner, the original merits can be properly inquired into." *
But though there remains no inconsiderable diversity of opinion
among the learned judges of 'the different tribunals, yet the
present inclination of the English courts seems to be, to sustain
the conclusiveness of foreign judgments.^
1 Story, Confl. Laws, § 597. See also 8 Simons, 279, 302 ; Don v. Lippman, 6
the lucid judgment delivered by Gibson, Clark & Finn. 1, 19, 20, 21 ; Bank of Aus-
C. J., in Dorsey v. Dorsey, 7 Watts, 350. tralasia v. Nias, 15 Jur. 967. So, if the de-
The whole subject of foreign divorces has fendant was never served witli process,
received a masterly discussion by Mr. Ibid. And see Henderson c. Henderson,
Justice Story, in his Commentaries on 6 Ad. & El. 288, N. s.
the Conflict of Laws, ch. vii. § 200-230 b. * Story, Confl. Laws, § 603.
2 See Walker v. Witter, 1 Doug. 1, and ^ m. §§ 604, 605, 606. See Guinness
cases there cited ; Arnold v. Redfern, 3 v. Carroll, 1 Barn. & Adolph. 459 ; Bec-
Bing. 353; Sinclair v. Fraser, cited 1 quet v. McCarthy, 2 B. & A. 951. In
Doug. 4, 5, note; Houlditch v. Donegal, Holditch v. Donegal, 8 Bligh, 301, 337-
2 Clark & Finnell, 470; s. o. 8 Bligh, 301 ; 340, Lord Brougham held a foreign judg-
Don K. Lippman, 5 Clark & Finn. 1, 19, ment to bo only /jr/ma yaa'e evidence, and
20 ; Price v. Dewhurst, 8 Sim. 279 ; Ali- gave his reasons at large for that opinion,
von V. Furnival, 1 Cromp. Mees. & Rose. On the other hand. Sir L. Shadwell, in
277; Hall v. Odber, 11 East, 118; Ripple Martin v. NichoUs, 3 Sim. 458, held tho
V. RippUi, 1 Rawle, 386. contrary opinion, that it was conclusive ;
^ See Bowles «. Orr, 1 Younge & Coll. and also gave a very elaborate judgment
464; Story, Conl. Laws, §§ 544, 545-550; upon the point, in which he reviewed the
Ferguson u. Mahon, 3 Perry & Dav. 143; principal authorities. Of course, the
11 Ad. &E1. 179, s. 0.; Price w. Dewhurst, learned judge meant to except, and did
49*
582
LAW OP EVIDENCE.
[part in.
[ * § 546a. We have lately had occasion carefully to review the
law ujton this subject, and we beg leave here to repeat what we
then said.^ There is no title connected with the general subject
of the conflict of laws, more embarrassing than that which we are
now considering. It has undergone considerable discussion since
the lamented decease of our author. We have therefore felt com-
pelled to state, as far as we could, the present state of the English
law in regard to it.
§ 5465. Whenever it becomes important to determine what is
the law of a foreign country, the decisions of the highest judicial
tribunals of that country are held conclusive in regard to it. Tliis
is partly upon the ground, that the question turns upon a fact,
aud that fact is the true state of the law of the country, which is
but another name for the decisions of the highest legal tribunals
of the country ; so that, in truth, the law and the decisions of
these tribunals thus become identical. This is illustrated in a
recent case.^ And a similar conclusion was arrived at in a later
except in a later case (Price v. Dewhurst,
8 Sim. 279, 302), judgments which were
produced by fraud. See also Don v. Lipp-
man, 5 Clark & Finnell, 1, 20, 21 ; Story,
Confl. Laws, § 545-550, 605 ; AUvon v.
Purnival, 1 Cromp. Mees. ,& Rose. 277,
284. " It is, indeed, very difficult," ob-
serves Mr. Justice Story, " to perceive
what could be done, if a different doctrine
were maintainable to the full extent of
opening all tlie evidence and merits of the
cause anew, on a suit upon the foreign
judgment. Some of the witnesses may
be since dead ; some of the vouchers may
be lost or destroyed. The merits of the
case, as formerly before the court, upon
the whole evidence, may have been de-
cidedly in favor of the judgment; upon a
partial possession of the original evidence,
they may pow appear otherwise. Suppose
a case purely sounding in damages, such
as an action for an assault, for slander, for
conversion of property, for a malicious
prosecution, or for a criminal conversa-
tion ; is the defendant to be at liberty to
retry the whole merits, and to make out,
if he can, a new case, upon new evidence 1
Or, is the court to review the former de-
cision, like a court of appeal, upon the old
evidence ? In a case of covenant, or of
debt, or of a breach of contract, are all the
circumstances to be re-examined aneW!
If they are, by what laws and rules of evi-
dence and principles of justice is the valid-
ity of the original judgment to be tried?
Is the court to open the judgment, and
to proceed ex aequo et bono ? Or is it to
administer strict law, and stand to the
doctrines of the local administration of
justice? Is it to act upon the rules of
evidence acknowledged in its own juris-
prudence, or upon those of. the foreign
jurisprudence? These and many more
questions might be put, to show the intrin-
sic difSculties of the sulgect. Indeed the
rule, that the judgment is to be pri7na
facie evidence for the plaintiff, would be a
mere delusion, if the defendant might still
question it, by opening all or any of the
original merits on his side ; for, under
such cu:cumstances, it would be equiva-
lent to granting a new trial. It is easy to
understand that the defendant may be at
liberty to impeach the original justice of
the judgment, by showing that the court
had no jurisdiction; or, that he never had
any notice of the suit ; or, that it was pro-
cured by fraud ; or, that upon its face it ia
founded in mistake ; or, that it is irregular,
and bad by the local law, Fori reijudicatm.
To such an extent, the doctrine is intelli-
gible and practicable. Beyond this, the
right to impugn the judgment is in legal
effect the right to retry the merits of the
original cause at large, and to put the
defendant upon proving those merits."
See Story, Confl. Laws, § 607 ; Alivon v
Furnival, 1 Cromp. Mees. & Rose. 277.
1 [ * Story, Confl. Laws, Redf. edit.,
§§618o-618/fc.
2 Scott V. Pilkington, 2 B. & S. 11; 8
Jur. N. s. 557.
CHAP. V.J RECORDS AND JUDICIAL WRITINGS. 583
case.^ In the case of Scott v. Pilhington, it was determined, that
where the defendant, domiciled in England, and having his place
of business there, gave a letter of credit to parties in New York,
authorizing them to draw bills of exchange on his house in Liver-
pool, such letter being delivered to the defendant in New York,
and intended to be exhibited to purchasers of such bills as author-
ity for drawing the same, the claim of a drawer of such bills upon
the defendant for non-acceptance of the same was a contract sub-
ject to the law of New York, as to its validity, force, and con-
struction, and not to be judged of by the law of England in any
respect. And when in such case an action had been brought in
the courts of New York, and the defendant appearing by attorney,
it had been adjudged, that, by the law of that state, the defendant
was liable, and judgment had been rendered thereon against him,
such judgment was conclusive as to the matter, although, if the
contract had been subject to the English law, and the New- York
court had mistaken it, the judgment would not have concluded an
English court. The case of Crispin v. Daglioni involved the right
of succession to personal estate in Portugal by one domiciled in
that country, and the matter having been definitely settled by the
decision of the highest judicial tribunal of that country, it was
held conclusive everywhere.
§ 546c. But it was said in Scott v. Pilkington, that where the for-
eign court, in giving judgment, and as one of the elements upon
which the same was based, assumed or decided a question of Eng-
lish law, by which the cause of action was ruled, and, in doing so,
mistook its true import, in such case the judgment of the foreign
courts will be of no force or validity in an English court.^ In the
case of Simpson v. Fogo, the effect of foreign judgments is very
extensively discussed; and the following propositions declared,
which may be regarded as embracing the present recognized prin-
ciples of English law upon the question.
§ 546(:?. A judgment of a foreign court is conclusive, inter
'partes, where there is nothing on the face of the judgment which
an English court can inquire into. But the courts of England
may disregard such judgment, inter partes, if it appears on the
record to be manifestly contrary to natural justice ; or to be based
on domestic legislation not recognized in England or other foreign
1 Crispin v. Daglioni, 9 Jur. s. B. 653. 8 Jur. N. s. 557 ; Simpson v. Fogo, b Jur.
' Scott V. Pilkington, 2 B. & S. 11 ; N. s. 403.
584 LAW OF EVIDENCE. [PAET HI.
countries ; or is founded upon a misapprehension of what is the
law of England ; or if such judgment proceeds upon a distinct
refusal to recognize the laws of the country under which the title
to the subjeci^matter of the litigation arose. And a somewhat
similar enunciation of the exceptions to the conclusiveness of for-
eign judgments is found in The Bank of Australasia v. Mas?-
§ 646e. There are some cases where foreign decrees have heen
held to operate in rem, and thus to transfer an effectual and abso-
lute title to property sold under an order or execution from the
foreign courts ; but where, in other cases, very similarly situated,
it has been held that only the title of the judgment-debtor
passed under the sale. The true distinction in this class of cases
seems to be, that where the court assumes to allow adverse
claimants to interpose objections to the sale, and to determine
the validity of such claims, and to pass a perfect title to the
thing sold, it must be taken as a proceeding in rem, and as having
effectually foreclosed all claim of title from any party who did in
fact submit his claim to adjudication before the court, or who
had his domicil at the time within the jurisdiction of the court,
and who might therefore have been heard there, provided proper
notice appears.^
§ 546/. And it will not exonerate the defendant in a foreign
judgment, that he became a party to the proceedings merely to
prevent his property being seized, and that the judgment is erro-
neous in fact and in law on the merits ; whether the plea alleges,
that the error does or does not appear upon the face of the judg-
ment. Nor can the defendant plead, that the enforcement of
the judgment in England is contrary to natural justice, on the
ground that the defendant had discovered fresh evidence, showing
that the judgment is erroneous in fact or in law upon the merits,
or that evidence was improperly admitted.^
§ 546<7. But a plea in bar of a suit, that the same matter has
been adjudged between the parties in a foreign court, must show
that the judgment is final and conclusive between the parties,
according to the law of the place where such judgment is pro-
nounced.* And the judgment of the foreign court may always
1 16 Q. B. 717 ; 4 Eng. L. & Bq. Rep. » De Cossfe Brissac v. Eathbone, 6 H. &
252. Nor. 301.
2 Iinrie v. Castrique, 8 C. B. n. s. 406, * Frayes v. Worms, 10 C. B. n s. 149
7 Jur. N. s. 1076 ; Simpson v. Fogo, supra;
Woodruff V. Taylor, 20 Vt. R. 65.
CHAP, v.] RECORDS AND JUDICIAL WEITINGS. 585
be impeached by showing any facts whereby it .is made to appear
that the court had not jurisdiction by the laws of the country
wliere rendered. But no facts can be sliown, by way of defence
to such judgment, wliicli might have been urged in tlie foreign
court.i
§ 546A. These cases, mostly of recent occurrence, have carried
the doctrine of the conclusive force of foreign judgments con-
siderably beyond the point maintained by the earlier cases, and
even so late as within the last thirty years, when it was held,
by the courts in Westminster Hall, that such judgments were
merely primd facie evidence of debt, and did not operate as an
absolute and conclusive merger of the cause of action.^ But it
was formally held, by the common consent of counsel, in the
House of Lords, as early as 1845, that a judgment of the highest
judicial tribunal of Prance, upon the same subject-matter, in favor
of the present defendant, amounted to res judicata, and was
therefore an effectual merger of the cause of action, " the foreign
tribunal having jurisdiction over the matter, and both the parties
having been regularly brought before " it.^ So that now it may be
regarded as fully established in England, that the contract result-
ing from a foreign judgment is equally conclusive, in its force and
operation, with that implied by any domestic judgment.
§ 546i. But there is still a very essential and important dis-
tinction between the two. Domestic judgments rest upon the
conclusive force of the record, which is absolutely unimpeachable.
Foreign judgments are mere matters en pais, to be proved the
same as an arbitration and award, or an account stated ; to be
established, as matter of fact, before the jury ; and by consequence
subject to any contradiction or impeacliment which might be
urged against any other matter resting upon oral proof. Hence
any fraud which entered into the concoction of the judgment itself
is proper to be adduced, as an answer to the same ; but no fraud
which occurred, and was known to the opposite party, before the
rendition of such foreign judgment, and which might therefore
have been brought to the notice of the foreign court, can be urged
in defence of it.
§ 546yi. It is proper to add, that while the English courts thus
i Vanquelin v. Bouard, 9 L. T. n. s. ^ Story, Confl. of Laws, § 509 ; Smith
682. V. NicoUs, 5 Bing. n. c. 208.
8 llicardo v. Garuias, 12 CI. &rin. 368.
5'd6 LAW OP EVIDENCE. ' [PAET III.
recognize the general force and validity of foreign judgments, it
has been done under such limitations and qualifications, that
great latitude still remains for breaking the force of, and virtually
disregarding such foreign judgments as proceed upon an obvious
misapprehension of the principles governing the case ; or where
they are produced by partiality, or favoritism, or corruption, or
where upon their face they appear to be at variance with the
instinctive principles of universal justice.^ But these are the rare
exceptions.]
§ 647. " The general doctrine maintained in the American courts,
in relation to foreign judgments in personam, certainly is, that
they are primd facie evidence ; but that they are impeachable.
But how far, and to what extent, this doctrine is tc be carried,
does not seem to be definitely settled. It has been declared that
the jurisdiction of the court, and its power over the parties and the
things in controversy, may be inquired into ; and that the judg-
ment may be impeached for fraud. Beyond this, no definite lines
have as yet been drawn." ^
§ 648. We have already adverted to the provisions of the con
stitution and statutes of the United States, in regard to the admis
sibility and effect of the judgments of one state in the tribunals
of another.^ By these provisions, such judgments authenticated
as the statutes provide, are put upon the same footing as domestic
judgments.* " But this," observes Mr. Justice Story, " does not
prevent an inquiry into the jurisdiction of the court, in which the
original judgment was rendered, to pronounce the judgment, nor
an inquiry into the right of the state to exercise authority over
the parties, or the subject-matter, nor an inquiry whether the
judgment is founded in, and impeachable for, a manifest fraud.
1 2 Story, Eq. Jur. §§ 1575-1584, and Erench court, professing to decide accord-
cases cited ; Boston India Rubber iFac- ing to the law of England, clearly mis-
tory V. Hoit, 14 Vt. R. 92.1 takes it. NovelU v. Rossi, 2 B. & Ad.
^ Story, Confl. Laws, § 608. See also 757.
2 Kent, Coram. 119-121 ; and the valuable = Supra, §§ 504, 505, 506. And seo
notes of Mr. Metcalf to his edition of Elourenoy v. Durke, 2 Brev. 206.
Starkie on Evid. vol. 1, pp. 232, 233 (6th * Taylor v. Bryden, 8 Johns. 173.
Am. edit.) ; Wood v. Watkinson, 17 Conn. Where the jurisdiction of an inferior court
500. The American cases seem further depends on a fact, which such court must
to agree, that when a foreign judgment necessarily and directly decide, its deci-
comes incidentally in question, as, where it sion is taken as coiiclusive evidence of the
is the foundation of a right or title derived fact. Britain v. Kinnaird, 1 B. & B. 432 ;
under it, and the like, it is conclusive. If Betts v. Bagley, 12 Pick. 572, 582, per
a foreign judgment proceeds upon an Shaw, 0. J. ; Steele w. Smith, 7 Law Rep.
error in law, apparent upon the face of It, 461.
it may be impeached everywhere; as, if a
OHAP. V.J EECORDS AND JUDICIAL WRITINGS. 687
The constitution did not mean to confer any new power upon the
states ; but simply to regulate the effect of their acknowledged
jurisdiction over persons and things within their territory. It
did not make the judgments of other states domestic judgments,
to all intents and purposes; but only gave a general validity,
faith, and credit to them as evidence.^ No execution can issue
upon such judgments, without a new suit in the tribunals of other
states. And they enjoy not the right of priority, or privilege, or
lien, which they have in the state where they are pronounced,
but that only which the lex fori gives to them by its own laws, in
the character of foreign judgments." ^
[* § 548a. We had occasion to consider a very peculiar question,
arising under the United States constitution and the act of con-
gress, as to the effect of the judgment of a court in one state for
the penalty of a bond, intended to secure the payment of a debt
by instalments, where all the instalments were not due at the time
of the judgment, and where the enforcement of the interlocutory
judgment for the penalty was attempted in another state^ in order
to compel the payment of the instalments falling due after the
rendition of the interlocutory judgment.^ Tiio conclusion reached
^as, that, as the judgment was merely interlocutory and did not
create any absolute indebtedness, no action of debt could bo main-
tained upon it ; and that, as it was not a proper or perfected judg-
ment, it could not have the same effect in any other state as in
that where rendered, and could not therefore be enforced, either
under the laws of congress, or upon general principles, as at com-
mon law.]
§ 549. The common law recognizes no distinction whatever, as
to the effect of foreign judgments, whether they are between
citizens, or between foreigners, or between citizens and foreigners ;
deeming them of equal obligation in all cases, whoever are the
parties.*
^ See Story's Comment, on the Con- Bennett v. Morley, 1 "Wilcox, 100. See
stit. U. S. ch. 29, § 1297-1307, and cases further, 1 Kent, Comm. 2G0, 2G1, iind note
there cited; Hall u. Williams, 6 Vick. 237 ; (d). As to tlie effect of a discharge under
Bissell t). Briggs, 9 Mass. 462; Shumway a foreign insolvent law, see the learned
V. Stillman, 6 Wend. 447 ; Evans v. Tarle- judgment of Shaw, C. J., in Belts v. Bag-
ton, 9 Serg. & R. 260 ; Benton v. Burgot, ley, 12 Pick. 672.
10 Serg. & R. 240; Hancock v. Barrett, 1 " Story, Confl. Laws, § 009 ; McEl-
Hall, 155; s. c. 2 Hall, 302; Wilson v. moyle v. Cohen, 13 Teters, 312, 328, 829;
Niles, 2 Hall, 358 ; Iloxie «. Wright, 2 Story, Confl. Laws, § 582 a, note.
Verm. 263 ; Bellows v. Ingraham, 2 Verrj. ' [* Dimick v. Brooks, 21 Vt. R. 509.]
573 : Aldrieh v. Kinney, 4 Conn. 380 ; * Story, Confl. Laws, § 610.
588 LAW OP EVIDENCE. [PAET IIL
§ 550. In regard to the decrees and sentences of courts, exer-
cising any branches of the ecclesiastical jurisdiction, the same
general principles govern, which we have already stated.^ The
principal branch of this jurisdiction, in existence in the United
States, is that which relates to matters of probate and administra-
tion. And as to these, the inquiry, as in other cases, is, whether
the matter was exclusively within the jurisdiction of the court,
and whether a decree or judgment has been passed directly upon it.
If the affirmative be true, the decree is conclusive. Where the
decree is of the nature of proceedings in rem, as is generally the
case in matters of probate and administration, it is conclusive, like
those proceedings, against all the world. But where it is a matter
of exclusively private litigation, such as, in assignments of dower,
and some other cases of jurisdiction conferred by particular stat-
tites, the decree stands upon the footing of a judgment at common
law.^ Thus, the probate of a will at least as to the personalty is
conclusive in civil cases, in all questions upon its execution and
validity.^ ■ The grant of letters of administration is, in general,
primd facie evidence of the intestate's death ; for only upon evi-
dence of that fact ought they to have been granted.* And if the
grant of administration turned upon the question as to which
of the parties was next of kin, the sentence or decree upon that
question is conclusive everywhere, in a suit between the same
parties for distribution.^ But the grant of administration upon
a woman's estate determines nothing as to the fact whether she
were a feme covert or not ; for that is a collateral fact, to be col-
lected merely by inference from the decree or grant of administra-
tion, and was not the point directly tried.^ Where a court of
1 2 Smith's Leading Cases, 446-448. But if the fact, that the intestate is living,
'^ Snpra, §§ 525, 528. when pleadable in abatement is not so
" Poplin V. Hawke, 8 N. Hamp. 124 ; 1 pleaded, the grant of administration is
Jarman on Wills, pp. 22, 23, 24, and notes conclusive. Newman v. Jenkins, 10 Pick,
by Perkins; Langdon u. Goddard, 3 Story, 515. In Moons v. De Bernales, 1 Russ.
R. 1. See post, vol. 2, (7th edit.) §§ 315, 301, the general practice was stated and
[673,] 6y3. [A decree of a probate court not denied to be, to admit the letters of
of anotlier state, admitting to probate a administration, as sufficient proof of the
will within its jurisdiction, is conclusive death, until impeached ; but the master of
evidence, if duly authenticated, of the va- the rolls, in that case, which was a for-
lidity of the will, upon an application to eign grant of administration, refused to
prove it in Massachusetts ; even when no receive them ; but allowed tlie party to
notice of the offer of the will for probate examine witnesses to the fact,
w.is given, if by the law of tlial state no ^ Barrs v. J.ickson, 1 Pliil. Ch. R. 582 ;
notice was required. Creppen v. Dexter, 2 Y. & C. 585 ; Thomas v. Ketteriche, 1
13 Gray, 330.] Vez. 333.
* Tliompson v. Donaldson, 3 Esp. 63 ; '^ Blackliam's case, 1 Salk. 290, per
French v. French, 1 Dick. 268; Succes- Holt, G. J. See also Hibsham «. DuUe-
sion of ilamblin, 3 Rob. Louis. R. 130; ban, 4 Watts, 183.
Jeilbrs v. Kadcliff, 10 N. Hamp. R. 242.
CHAP, v.] EECOKDS AND JUDICIAL WRITINGS. 589
probate has power to grant letters of guardianship of a lunatic,
the grant is conclusive of his insanity at that time, and of his
liability, therefore, to be put under guardianship, against all per-
sons subsequently dealing directly with the lunatic, instead of
dealing, as they ought to do, with the guardian.^
§ 551 . Decrees in chancery stand upon the same principles with
judgments at common law, which have already been stated.
Whether the statements in the hill are to be taken conclusively
against the complainant as admissions by him, has been doubted ;
but the prevailing opinion is supposed to be against their con-
clusiveness, on the ground that the facts therein stated are fre-
quently the mere suggestions of counsel, made for the purpose
of obtaining an answer, under oath.^ If the bill has been sworn
to, without doubt the party would be held bound by its statements,
so far as they are direct allegations of fact. The admissibility
and effect of the answer of the defendant is governed by the saine
rules.^ But a demurrer in chancery does not, admit the facts
charged in the bill ; for if it be overruled, the defendant may still
answer. So it is, as to pleas in chancery ; these, as well as de-
murrers, being merely hypothetical statements, that, supposing
the facts to be as alleged, the defendant is not bound to answer.^
But pleadings, and depositions, and a decree, in a former suit,
the same title being in issue, are admissible as showing the acts
of parties, who had the same interest in it as the present party,
against whom they are offered.^
§ 562. In regard to depositions, it is to be observed, that, though
informally taken, yet as mere declarations of the witness, under
his hand, they are admissible against him, wherever he is a party,
like any other admissions ; or, to contradict and impeach him,
when he is afterwards examined as a witness. But, as secondary
1 Leonard v. Leonard, 14 Pick. 280. whose name the bill was filed. Boileau v.
But it is not conclusive against his subse- Eudlin, 12 Jur. 899 ; 2 Exch. 665. And
quent capacity to make a will. Stone w. see Bunden v. Cleveland, 4 Ala. 225;"
Damon, 12 Mass. 488. Bull. N. P. 235. See further, as to the
^ Doe V. Sybourn, 7 T. R. 3. The bill admission of bills and answers, and to
is not evidence against the party in whose what extent, Eandall v. Parramore, 1
name it is filed, until it is shown that he Cranch, 409 ; Roberts v. Tennell, 3 Monr.
was privy to it. When this privity is 247; Clarke v. Robinson, 5 B. Monr. 55;
established, the bill is evidence that such Adams v. McMillan, 7 Port. 73.
a. suit was instituted, and of its subject- ^ Supra, §§ 171, 179, 186, 202.
matter ; but not of the plaintiff's admis- * Tompkins v. Ashby, 1 M. & Malk.
Bion of the truth of the matters therein 32, 33, per Abbott, Ld. C. J.
stated, unless it were sworn to. The pro- ^ Viscount Lorton v. Earl of Kingston,
ceedings after answer are admissible in 5 Clark & Ein 269.
evidence of the privity of the party in
FOL. I 50
590 LAW OP EVIDENCE. [PART lU.
evidence, or as a substitute for liis testimony vivd voce, it is essen-
tial that they be regularly taken, under legal proceedings duly
pending, or in a case and manner provided by law.^ And though
taken in a foreign state, yet if taken to be used in a suit pending
here, the forms of our law, and not of the foreign law, must be
pursued.^ But if the deposition was taken inperpetuam, the forms
of the law under which it was taken must have been strictly pur-
sued, or it cannot be read in evidence.^ If a bill in equity be
dismissed merely as being in its substance unfit for a decree, the
depositions-, when offered as secondaiy evidence in another suit,
will not on that account be rejected. But if it is dismissed for
irregularity, as, if it come before the court by a bill of revivor,
when it should have been by an original bill ; so that in truth
there was never regularly any such cause in the court, and con-
sequently no proofs, the depositions cannot be read ; for the proofs
cannot be exemplified without bill and answer, and they cannot
be read at law, unless the bill on which they were taken can be
read.*
§ 553. We have seen, that in regard to the admissibility of a
former judgment in evidence it is generally necessary that there
be a perfect mutuality between the parties ; neither being con-
cluded, unless both are alike bound.^ But with respect to depo-
sitions, though this rule is admitted in its general principle, yet it
1 As to the manner of taking deposi- to the same extent, to depositions taken
tions, and in what cases they may be in chancery is, that otherwise great mis-
taken, see supra, §§ 320-325. [The an- cliief would ensue ; " for then a man, tliat
swers of a party to a suit, to interrogato- never was party to the chancery proceed-
ries filed in a case, are competent evi- ings, might use against his adversary all
dence against him, as admissions on his the depositions that made against him ;
part of the facts stated therein in another and he, in his own advantage, could not
suit, although the issues in the two suits use the depositions that made for him,
be different. Williams v. Cheney, 3 Gray, because the other party, not being con-
215, 220.] cerned in the suit, had not the liberty to
2 Evans v. Eaton, 7 Wheat. 426 ; Ear- cross-examine, and therefore cannot be
ley V. King, S. J. Court, Maine, in Lin- encountered with any depositions, out of
coin, Oct. Term, 1822, per Preble, J. But the cause." 1 Gilb. Evid. 62; Eush worth
depositions taken in a foreign country, n. Countess of Pembroke, Hardr. 472. But
under its own laws, are admissible here the exception allowed in the text is clearly
in proof of probable cause, for the arrest not within tliis mischief, the right of cross-
and extradition of a fugitive from justice, examination being unlimited, as to the
upon the preliminary examination of his matters in question. [ * In a recent case
case before a judge. See Metz'ger's case, in the King's Bench, it was held by two of
before Belts, J., 5 N.Y. Legal Obs. 83. the judges, one dissenting, that where a
^ Gould V. Gould, 3 Story, R. 516. party makes use of the depositions of wit-
* Backhouse v. Middleton, 1 Ch. Cas. nesses in a suit with another party, in
178, 175 ; Hall t>. Hoddesdon, 2 P. Wms. regard to the same subject-matter, that he
162; Vaughan v. Fitzgerald, 1 Sch. & by thus making use of the deposition at
Lefr. 316. true, knowing its contents, so far affirm*
^ Supra, § 524. The reason given by its truth, that it may be used as originj'
Chief Baron Gilbert, for applying the rule, evidence against him. Cockburn, C.
CHAP, v.] ' RFCOEDS AND JUDICIAL WRITINGS. 591
is applied with more latitude of discretion ; and complete mutu-
ality, or identity of all the parties, is not required. It is generally
deemed sufficient, if the matters in issue were the same in both
cases, and the party, against whom the deposition is offered, had
full power to cross-examinB the witness. Thus, where a bill waS
pending in chancery, in favor of one plaintiff against several de-
fendants, upon which the court ordered an issue of devisavit vel
non, in which the defendants in chancery should be plaintiffs, and
the plaintiff in chancery defendant ; and the issue was found for
the plaintiffe ; after which the plaintiff in chancery brought an
ejeetment on his own demise, claiming as heir at law of the same
testator, against one of those defendants alone, who claimed as
devisee under the will formerly in controversy ; it was held, that
the testimony of one of the subscribing witnesses to the will, who
was examined at the former trial, but had since died, might be
proved by the defendant in the second action, notwithstanding the
parties were not all the same ; for the same matter was in con-
troversy, in both cases, and the lessor of the plaintiff had precisely
the same power of objecting to the competency of the witness, the
same right of calling witnesses to discredit or contradict his testi-
mony, and the same right of cross-examination, in the one case, as
in the other.i jf ^\^q power of cross-examination was more limited
in the former suit, in regard to the matters in controversy in the
latter, it would seem that the testimony ought to be excluded.^
The same rule applies to privies, as well as to parties.
§ 654. But though the general rule, at law, is, that no evidence
shall be admitted, but what is or might he under the examination
of loth parties ; ^ yet it seems clear, that, in equity, a deposition is
not, of course, inadmissible, in evidence, because there has been no
cross-examination, and no waiver of the right. For if the witness,
after his examination on the direct interrogatories, should refuse
said, " A man who brings forward anotlier, deposition of a witness before the coroner,
for the purpose of asserting or proving upon an inquiry touching the death of a
some fact on his behalf, whether in a court person killed by a collision of vessels, was
of justice or otherwise, must be taken admissible in an action for the negligent
himself to assert the fact which he thus management of one of them, if the witness
seeks to establish." Richards ». Morgan, is shown to be beyond sea. Sills u. Brown,
10 Jur. N. s. 559.1 9 C. & P. 601, 603, per Coleridge, J. ;
1 Wright V. Tatham, 1 Ad. & EI. 8; Bull. N. P. 242; Eex v. Eriswell, 3 T. E.
12 Vin. Abr. tit. Evidence, A. b. 81, pi. 707, 712, 721; J. Kely, 55.
45, 47. As to the persons who are to be " Cazenove v. Vaughan, 1 M. & S. 4,
deemed parties, see supra, §§ 523, 535. 6 ; Attor.-Gen. v. Davison, 1 McCl. & Y.
2 Hardr. 315; Cazenove v. Vaughan, 160; Gass v. Stinson, 3 Sumn. 98, 104,
1 M. & S. 4. It has been held that the 106.
592 LAW OP EVIDENCE. [PAET HI.
to answer the cross-interrogatories, the party producing the witness
will not be deprived of his direct testimony, for, upon application
of the other party, the court would have compelled him to answer .^
So, after a witness was examined for the plaintiff, but before he
could be cross-examined, he died ; the co'urt ordered his deposition
to stand; 2 though the want of the cross-examination ought to
abate the force of his testimony .^ So, where the direct examina-
tion of an infirm witness was taken by the consent of parties, but
no cross-interrogatories were ever filed, though the witness lived
several months afterwards, and there was no proof that they might
not have been answered, if they had been filed ; it was held that
the omission to file them was at the peril of the party, and that the
deposition was admissible.* A new commission may be granted,
to cross-examine the plaintiff's witnesses abroad, upon subsequent
discovery of matter for such examination.^ But where the deposi-
tion of a witness, since deceased, was taken, and the direct exami-
nation was duly signed by the magistrate, but the cross-examination,
which was taken on a subsequent day, was not signed, the whole
was held inadmissible.®
§ 555. Depositions, as well as verdicts, which relate to a custom,
or prescription, or pedigree, where reputation would be evidence,
are admissible against strangers ; for as the declarations of persons
deceased would be admissible in such cases, a fortiori their dec-
larations on oath are so.'^ But in all cases at law, where a deposi-
tion is offered as secondary evidence, that is, as a substitute for
the testimony of the witness vivd voce, it must appear that the
witness cannot be personally produced ; unless the case is provided
for by statute, or by a rule of the court.^
§ 556. The last subject of. inquiry tinder this head is that of
inquisitions. These are the results of inquiries, made under com-
petent public authority, to ascertain matters of public interest and
concern. It is said that they are analogous to proceedings in rem,
being made on behalf of the public ; and that therefore no one can
strictly be said to be a stranger to them. But the principle of
1 Courtney v. Hoskins, 2 Euss. 253. ' King of Hanover v. Wheatley, 4
2 Arundel v. Arundel, 1 Chan. R. 90. Beav. 78.
* O'Callaghan v. Murphy, 2 Sch. & « Eegina v. France, 2 M. & Rob. 207.
Lef. 158; Gass v. Stinson, 3 Sumn. 98, f Bull. N. P. 239, 240; supra, § 127-
106, 107. But see Kissam v. Forrest, 25 130, 139, 140.
Wend. 051. » Supra, §§ 322, 323.
* Gass V. Stinson, 3 Sumn. 98, where
this subject is fuUy examined ly Story, J.
CHiP. v.] RECORDS AND JUDICIAL WRITINGS. 593
their admissibility in evidence, between, private persons, seems to
be, tliat they are matters of public and general interest, and there-
fore within some of the exceptions to the rule in regard to hearsay
evidence, which we have, heretofore considered.^ Whether, there
fore, the adjudication be founded on oath or not, the principle
of its admissibility is the same. And moreover, it is distinguished
from other hearsay evidence, in having peculiar guaranties for its
accuracy and fidelity.^ The general rule in regard to these docu-
ments is, that they are admissible in evidence, but that they are
not conclusive except against the parties immediately concerned,
and their privies. Tiius, an inquest of office, by the attorney-
general, for lands escheating to the government by reason of
alienage, was held to be evidence of title, in all cases, but not
conclusive against any person, who was not tenant at the time of
the inquest, or party or privy thereto, and that such persons,
therefore, might show that there were lawful heirs in esse, who
were not aliens.^ So, it has been repeatedly held, that inquisi-
tions of lunacy may be read ; but that they are not generally con-
clusive against persons not actually parties.* But inquisitions,
extrajudicially taken, are not admissible in evidence.^
1 Svpra, §§ 127-140. 6 Qlossop v. Pole, 3 M. & S. 175 ; Lat
2 Pliil. & Am. on ETid. 578, 579 ; 1 kow v. Earner, 2 H. Bl. 437. See supra.
Stark. Evid. 260, 261, 263. § 550, that the inquisition is conclusive
' Stokes V. D&vies, 4 Mason, 268, per against persons, who undertake subse-
Story, J. quently to deal with the lunatic, instead
* Sergeson v. Sealey, 2 Atk. 412 ; Den of dealing with the guardian, and seek to
V. Clark, 5 Halst. 217, per Ewmg, C. J. ; avoid his authority, collaterally, by show-
Hart V. Deamer, 6 Wend. 497 ; Faulder Ing that the party was restored to his
V. Silk, 8 Campb. 126: 2 Madd. Ch«n. Teason.
678
694 LAW OP EVIDENCE. [PAIiT m.
CHAPTEE VI.
OP PEITATE WEITINGS.
• § 557. How private writings put in evidence.
558. What evidence required of the loss of the instrument.
559. Production of papers in hands of adverse party may be ordered.
560. Where papers in hands of adverse party, notice to counsel to produce
661. Cases wliere no sucli notice is required.
562. Time and manner of serving notice to produce papers.
563. The time to call for the production of papers, and the efieet of inspecting
them.
564. Alterations appearing must be satisfactorily accounted for.
565. Material alteration of instrument wUl avoid it.
566. But if done by a mere stranger, it will not have any effect.
567. Addition by party of such terms as the law supplies has no effect.
568. Alteration made by party, with fraudulent intent, avoids instrument.
568a. If made by consent of parties, as filhng blanks, wiU not have that effect.
569. Subscribing witness must be produced ; admission of party not sufficient.
569a. Such witness, one present and subscribing at the time of execution.
570. The rule does not apply to writings more than thirty years old.
571. Nor to papers produced by the adversary on notice, he claiming an interest
in the suit, under them.
572. So too if the witness is incompetent, or cannot be produced.
573. Sometimes claimed that official bonds need not be proved.
573a. So letters received in reply to others addressed the party need not be
proved.
5736. Where the writing comes only collaterally in question, subscribing witness
need not be called.
574. The degree of search required for subscribing witness.
575. In absence of subscribing witness, proof of signature of witness or party
sufficient.
576. Comparison of handwriting formerly not allowed.
577. Personal knowledge may be acquired from seeing the party write, or having
correspondence with him.
578. Comparison allowed where witness cannot be found, from lapse of time ; or
where genuine writings already in the case.
579. How far papers may be put in the case to enable the jury to compare hand-
writing.
580. The present EngUsh rule rejects such testimony.
581. The decisions in America not altogether uniform.
581a. Other writings admissible to prove genuineness by comparison of spelling.
582. In regard to secondary evidence, no degrees recognized.
583. The effect of private writings already considered ; the rest belongs to jury,
684. Conclusion.]
CHAP. VI.] PRIVATE WEITIN6S. 595
§ 557. The last class of ■written evidence, wliich we propose
to consider, is that of private writings. And in the discussion
of this subject, it is not intended separately to mention every
description of writings, comprised in this class ; but to state the
principles which govern the proof, admissibility, and effect of
them all. In general, all private writings, produced in evidence,
must be proved to be genuine ; but in what is now to be said,
particular reference is had to solemn obligations and instruments,
under the hand of the party, purporting to be evidence of title ;
such as deeds, bills, and notes. These must be produced, and
the execution of them generally be proved ; or their absence must
be duly accounted for, and their loss supplied by secondary evi-
dence.
§ 568. And first, in regard to the production of such docu-
ments ; if the instrument is lost, the party is required to give
some evidence, that such a paper once existed, though slight
evidence is sufficient for this purpose, and that a bond fide and
diligent search has been tinsuccessfuUy made for it in the place
where it was most likely to be found, if the nature of the case
admits such proof ; after which, his own affidavit is admissible to
the fact of its loss.^ The same rule prevails where the instrument
is destroyed. What degree of diligence in the search is necessary,
' Supra, § 349, and cases there cited, ument necessarily involves some descrip-
The rule is not restricted to facts pecu- tive proof of the document itself, though
liarly within the party's knowledge ; but not to the degree of precision subsequent-
permits him to state other pertinent facts, ly necessary in order to establish a title
such as, his search for the document. else- under it; and on the other hand, a strong
where than among his own papers. Ved- probability of its loss has been held suffl-
der V. Wilking, 5 Denio, 64. In regard to cient to let in the secondary evidence of
the 07-der of the proof, namely, whether its contents. Bouldin v. Massie, 7 Wheat,
the existence and genuineness of the 122, 154, 155. These considerations will
paper, and of course its general character go far to reconcile most of the cases ap-
or contents, must be proved before any evi- parently conflicting. In Fitch v. Bogue,
dence can be received of its loss, the de- 19 Conn. 285, the order of the proof was
cisions are not uniform. The earlier and held to be immaterial, and to rest in the
some later cases require that this order discretion of the court. It is sufficient,
should be strictly observed. Goodier v. if the party has done all that could rea-
Lake, 1 Atk. 446 ; Sims v. Sims, 2 Rep. sonably be expected of him, under the
Const. Ct. 225; Kimball v. Morrell, 4 circumstances of the case, in searching
Greonl. 368; Stockdale v. Young, 8 for the instrument. Kelsey v. Hanmer,
Strobh. 501, n. In other cases it has been 18 Conn. K. 311. After the loss of a
held, that in the order of proof, the loss or deed has been established, the seeond.ary
destruction of the paper must first be evidence of the contents or substance of
shown. Willis v. McDole, 2 South. 501 ; the contents of its operative parts must be
Sterling v. Potts, Id. 773 ; Shrouders v. clear and direct, and its execution must
Harper, 1 Harringt. 444 ; Finn v. M'Gon- be distinctly proved. And the declara-
igle, 9 Watts & Serg. 75 ; Murray v. tions of the grantor are admissible, in cor
Buchanan, 7 Blackf. 549 ; Parke v. Bird, roboration of the other evidence. Met-
SBarr, 36{y. But on the one hand it is calf v. Van Benthuysen, 3 Comst. 424;
plain, that the proof of the loss of a doc- Mariner v. Saunders, 5 Glim. 113
596 LAW OP EYIDENCE. [PAET IH.
it is not tiasy io define, as eacli case depends much on its peculiar
circumstances, and tlie question, wliether tlie loss of the instru-
ment is sufficiently proved to admit secondary evidence of its con-
tents, is to be determined by the court and not by the jury.^ But
it seems, that, in general, the party is expected to show that he
has in good faith exhausted, in a reasonable degree, all the sources
of information and means of discovery which the nature of the
case would naturally suggest, and which were accessible to him.^
It should be recollected, that the object of the proof is merely to
establish a reasonable presumption of the loss of the instrument ;
and that this is a preliminary inquiry addressed to the discretion
of the judge. If the paper was supposed to be of little value, or
is ancient, a less degree of diligence will be demanded, as it will
be aided by the presumption of loss, which these circumstances
afford. If it belonged to the custody of certain persons, or is
proved or may be presumed to have been in their possession, they
must, in general, be called and sworn to account for it, if they are
within reach of the process of the court.^ And so, if it might or
ought to have been deposited in a public office, or other particular
place, that place must be searched. If the search was made by
a third person, he must be called to testify respecting it. And
if the paper belongs to his custody, ho must be served with a
subpoena duces tecum, to produce it.* If it be an instrument,
1 Page V. Page, 16 Pick. 368. [While plaintiff, that he had burnt the bond, he
it is a general rule that the affidavit of the being interested adversely to the real
plaintiff must be produced where a paper plaintiff, has been held sufficient to let
is alleged to be lost, of wMch he must be in secondary evidence of its contents,
presumed to have the custody, before sec- Shortz v. Unangst, 3 Watts & Serg. 45.
ondary evidence of its contents can be [Where a party has been deprived of an
admitted, yet the rule is not inflexible, instrument by fraud, secondary evidence
Where the nominal party to the record of its contents is admissible. Grimes v.
is not the party actually seeking to re- Ifimball, 3 Allen, 518. And even where
cover, and the party interested has used a party who offers to prove the contents
due diligence to find the plaintiff and pro- of a paper has himself destroyed it, he
duces proof that he has absconded to may explain the circumstances of the de-
parts unknown, he has done all that can struction, in order to prove the contents.
be reasonably required of him, and the Tobin v. Shaw, 45 Maine, 331.]
production of the affidavit of the absent ' ^ Ralph v. Brown, 3 Watts & Serg.
party to the record may be dispensed 395.
with. Poster v. Mackay, 7 Met. 531, * The duty of the witness to produce
637.] such a document is thus laid down by
^ Rex V. Morton, 4 M. & S. 48 ; Rex Shaw, C. J. : " There seems to be no dif-
V. Castleton, 6 T. R. 236 ; 1 Stark. Evid. ference in principle between compellmg a
336-340 ; Willis v. McDole, 2 South. 501 ; witness to produce a document in his pos-
Thompson v. Travis, 8 Scott, 85 ; Parks session, under a subpoena duces tecum, in a
V. Dunklee, 3 Watts & Serg. 291 ; Gath- case where the party calling the witness
ercole v. Miall, 16 Law Journ. 179 ; Doe w. has a right to the use of such document,
Lewis, 15 Jur. 612 ; 5 Eng. L. & Eq. R. and compelling him to give testimony,
400. The admission of the nominal when the fects lie in his own knovrl-
CHAP. VI.]
PRIVATE WEITINGS.
597
■which is the foundation of the action, and which, if found, the
defendant, may be compelled again to pay to a bond fide holder,
the plaintiff must give suflicient proof of its destruction, to satisfy
the court and jury that the defendant cannot be liable to pay it
a second time.^ And if the instrument was executed in duplicate,
or triplicate, or more parts, the loss of all the parts must be
proved, in order to let in secondary evidence of the contents.^
Satisfactory proof being thus made of the loss of the instrument,
the party will be admitted to give secondary evidence of its con-
tents.2 [* Where the party voltmtarily destroys written evidence
in his favor, he cannot be allowed to give evidence of the contents
of such writing in a suit in his own favor founded upon the writ-
ing, without first introducing evidence to rebut any inference of
fraud arising from his destroying such written evidence.*]
§ 559. The production of private writings, in which another per-
son has an interest, may be had either by a bill of discovery, in
proper cases, or in trials at law by a writ of subpoena duces iecum^
edge. It has been decided, though it was
formerly doubted, that a subpcena duces
tecum is a writ of compulsory obligation,
which the court has power to issue, and
which the witness is bound to obey,
and which will be enforced by proper
process to compel the production of the
paper, wlien the witness has no lawful or
reasonable excuse for withholding it.
Amev V. Long, 9 East, 473 ; Corsen v.
Dubois, 1 Holt's N. P. R. 239. But of
such lawful or reasonable excuse, the
court !it nisi prius, and not the witness, is
to judge. And when the witness has the
paper ready to produce, in obedience to
the summons, but claims to retain it' on
the ground of legal or equitable interests
of his own, it is a question to the dis-
cretion of the court, under the circum-
stances of tlie case, whetlier the witness
ought to produce, or is entitled to with-
hold the paper." Bull v. Loveland, 10
Pick. 14.
1 Hansard v. Eohinson, 7 B. & C. 90;
Lubbock u. Tribe, 3 M. & W. 607. See
also l^eabody v. Denton, 2 Gall. 351 ; An-
derson !;. Robson, 2 Day, 495; Davis v.
Todd, 4 Taunt. 602 ; Pierson v. Hutchin-
bun, 2 Oampb. 211; Rowley i'. Ball, 8
Cowen, 303; Kirbv v. Sisson, 2 Wend.
550; Murray v. Cai-rett, 3 Call. 373;
Mayor v. Johnson, 3 Campb. 324 ; Swift
V. Stevens, 8 Conn. 431 ; Ramuz v.
Crowe, 11 ,Tur. 715; post, vol. 2, § 156.
2 Bull. N. P. 254 ; Rex v. Castleton, 6
T. R. 236 ; Doe v. Pulman, 3 Ad. & El
622, N. s.
^ See, as to secondary evidence, supra,
§ 84, and note. Where secondary evi-
dence is resorted to, for proof of an instru-
ment which is lost or destroyed, it must,
in general, be proved to have been exe-
cuted. Jackson v. Frier, 16 Johns. 196;
Kimball v. Morrell, 4 Greenl. 368 ; Kelsey
V. Hanmer, 11 Conn. R. 311 ; Porter v.
Ferguson, 4 Flor. R. 102. But if the sec-
ondary evidence is a copy of the instru-
ment which appears to have been attested
by a witness, it is not necessary to call
this witness. Poole v. Warren, 3 Nev. &
P. 693. In case of the loss or destruction
of the instrument, the admissions of the
party may be proved to establish both
its existence and contents. Mauri v.
Heffernan, 13 Johns. 58, 74 ; Thomas v.
Harding, 8 Greenl. 417 ; Corbin v. Jack-
son, 14 Wend. 619. A copy of a docu-
ment, taken by a machine, worked by the
witness who produces it, is admissible as
secondary evidence. Simpson v. Thore-
ton, 2 M. &. Rob. 433. [*A machine
copy of a letter of the plaintiff to a third
party was received as evidence of an ad-
mission on his part, although not admissi-
ble as a letter. Nathan v. Jacob, 1 F. &
F. 452.]
* (* Joannes v. Bennett, 5 Allen, 169.
See also Bagley v. McMickle, 9 Cal. 430.J
' See the course in a parallel case,
where a witness is out of the jurisdiction.
698 LAW OF EVIDENCE. [PAET III.
directed to the person who has them in his possession. The courts
of common law may also make an order for the inspection of writ-
ings in the possession of one party to a suit, in favor of the other.
The extent of this power, and the nature of the order, whether it
should be peremptory, or in the shape of a rule to enlarge the
time to plead, unless the writing is produced, does not seem to
be very clearly agreed ; ^ and, in the United States, the courts
have been unwilling to exercise the power, except where it is
given by statute.^ It seems, however, to be agreed, that where
the action is ex contractu, and there is but one instrument between
the parties, which is in the possession or power of the defendant,
to which the plaintiff is either an actual party, or a party in
interest, and of which he has been refused an inspection, upon
request, and the production of which is necessary to enable him
to declare against the defendant, the court, or a judge at chambers,
may grant him a rule on the defendant to produce the document,
or give him a copy, for that purpose.^ Such order may also be
obtained by the defendant, on a special case ; such as, if there is
reason to suspect that the document is forged, and the defendant
wishes that it may be seen by himself and his witnesses.* But, in
all such cases, the application should be supported by the affidavit
of the party, particularly stating the circumstances.^ [*And it
supra, § 320. It is no sufficient answer A prima facie case of the existence of the
for a witness not obeying this subpoena, paper and its materiality must be made
that the instrument required was not ma- out, and the court will then pass an order
terial. Doe v. Kelly, 4 I)owl. 273. But nisi, leaving the opposite party to produce,
see Eex v. Ld. John Russell, 7 Dowl. or to show cause at the trial, where alone
693. the materiality can be finally decided.
1 Supra, § 320. If the applicant has lasigi v. Brown, 1 Curtis, C. C. 401. For
no legal interest in the writing, which he other decisions under this section of the
requests leave to inspect, it will not be statute, see Hylton v. Brown, 1 Wash. C. C.
granted. Powell v. Bradbury, 4 M. G. & R. 298 ; Bas v. Steele, 3 lb. 381 ; Dun-
S. 541 ; 13 Jur. 349. And see supra, ham v. Riley, 4 lb. 126 ; Vasse v. Mifflin,
§ 473. lb. 519.]
2 [By the act of Sept. 24, 1789 (1 U. S. 335 Chitty's Gen. Pr. 438, 434; 1
Stat, at Large, 82), It is provided that the Tidd's Pr. 590, 591, 592; 1 Paine &
courts of the United States " shall have Duer's Pr. 486-488 ; Graham's Practice,
power in all actions at law, on motion and p. 524 ; Lawrence v. Ocean Ins. Co. 11
due notice thereof being given, to require Johns. 245, n. (a) ; Jackson v. Jones, 3
the parties to produce books or writings Cowen, 17 ; Wallis v. Murray, 4 Cowen,
in their possession or power, which con- 399 ; Denslow v. Fowler, 2 Cowen, 592 ;
tain evidence pertinent to the issue, in Davenport v. M'Kinnie, 5 Cowen, 27 ;
cases and under circumstances where Utica Bank v. Hilliard, 6 Cowen, 62.
they might be compelled to produce the * Brush v. Gibbon, 3 Cowen, 18, n
same by the ordinary rules of proceeding (a).
in chancery ; " and in case of the non- ^ 8 Chitty's Gen. Pr. 434. This course
production thereof upon such order, the being so seldom resorted to in the Amer-
court may direct a nonsuit or default, ican common-law courts, a more particu-
Under tliis statute, an order to produce lar statement of Ihe practice is deemed
may be applied for before trial, upon notice, unnecessary in this place. Sec Law's
CHAP. VI.] PRIVATE V?KITINGS. 699
seems that in most cases the defendant will be entitled to an in-
spection of his own letters, in the hands of the opposite party,
when the action is based upon evidence contained in them, where
no copies were retained and the inspection was necessary to the
defence.^ And so also a plaintiff, who claimed damages of a
railway company for dismissing him from the ofHce of superin-
tendent, it was held that he was entitled to have an inspection
of all entries or minutes in the company's books having reference
to his employment.^ But the defendant is not entitled to inspect
his own letters to the plaintiff, in an action for breach of promise
of marriage, upon an afiidavit, that the promise, if any, was con-
tained in the letters.^ And the court will not grant an inspection
of documents produced at the trial, with a view to discover grounds
to move a new trial.*]
§ 560. When the instrument or writing is in the hands or power
of the adverse party, there are, in general, except in the cases
above mentioned, no means at law of compelling him to produce
it ; but the practice, in such cases, is, to give him or his attorney
a regular notice to produce the original. Not that, on proof of
such notice, he is compellable to give evidence against himself;
but to lay a foundation for the introduction of secondary evidence
of the contents of the document or writing, by showing that the
party has done all in his power. to produce the original.^
TJ. S. Courts, 35, 36. [In England it has necessary to make out a prima facie case ;
been held that under the Common-Law but it extends to any deeds which may
Procedure Act (1854), 17 & 18 "Vict. ch. tend to support or strengthen tlie case on
125, the court will not grant a discovery the part of the plaintiff. The rule that
of documents except upon the aiBdavit of one party has no right to inspect doeu-
the party to the suit ; the affidavit of the ments which make out the title of the
attorney not being sufiicient, although the other does not apply, if tliey also make
party liimself is abroad. Herschtield v. out his own. Coster v. Baring, lb. 865.]
Clark, 84 Eng. Law & Eq. 549. [*But i [*Price v. Harrison, 8 C. B. n.s. 617.
m the case of a corporation, the affidavit ^ Hill v. Great "Western Railway Co.
may be made by attorney. Bull v. 10 C. B. n. s. 148.
Clarke, 15 C. B. k. s. 851.1 Before a party ^ Hamer v. Sowerby, 3 Law T. n. s.
can be called upon to produce a document 734, Q. B.
for the purposes of evidence, it must be * Pratt v. Goswell, 9 C. B. w. s. 706.]
shown that it is in his possession. Lax- ^ 2 Tidd's Pr. 802 ; 1 Paine & Duer's
ton V. Eeynolds, 28 lb. 553. It is not an Pr. 483 ; Graham's Practice, p. 528. No-
answer to an application for an order for tice to produce the instrument is not
a discDvery of documents, that they alone sufficient to admit the party to give
arc privileged from being produced ; if secondary evidence of its contents. He
such be the fact it must be shown in the must prove the existence of the original
affidavit made in obedience to the order. Sharpe v. Lambe, 3 P. & D. 454. He
Forshaw v. Lewis, 29 lb. 488. The right must also show that the instrument is in
of a plaintiff under the statute (14 & the possession, or under the control, of the
15 "Vict. c. 99), to inspect deeds in party required to produce it. Smith v.
the defendant's custody, where such a Sleap, 1 Car. & Kirw. 48. But of this
right exists, is not limited by what is fact very slight evidence will raise a suffl-
600
LAW OP EVIDENCE.
[PABT m,
§ 561. There are three cases in wliicli such, notice to produce ia
not necessary. First, where tlie instrument to be produced and
that to be proved are duplicate originals; for, in such case, the
original being in the hands of the other party, it is in liis power
to contradict the duplicate original by producing the other, if they
vary;i secondly, where the instrument to be proved is itself a
notice, such as a notice to quit, or notice of the dishonor of a bill
of exchange ; and, thirdly, where, from the nature of the action,
cient presumption, where the instrument
exclusively belongs to him, and has re-
cently been, or regularly ought to be, in
his possession, according to the course of
business. Henry v. Leigh, 3 Campb. 499,
502; Harvey v. Mitchell, 2 M. & Rob.
366; Robb v. Starkey, 2 C. & K. 143.
And if the instrument is in the possession
of another, in privity with the party, such
as his banker, or agent, or servant, or the
like, notice to the party himself is suffi-
cient. Balduey v. Ritcliie, 1 Stark. R.
338; Sinclair v. Stevenson, 1 C. & P.
582; Burton v. Payne, 2 C. & P. 520;
Partridge v. Coates, Ey. & M. 153, 156 ;
TapUn V. Atty, 3 Bing. 164. If a deed is
in the hands of an attorney, having a hen
upon it, as security for money due from
his client, on which ground he refuses to
produce it in obedience to a subpcena duces
tecum, as he justly may ; Kemp v. King, 2
M. & Rob. 437 ; Regina v. Hankins, 2 C.
& K. 823 ; the party calling for it may
give secondary evidence of its contents.
Doe V. Ross, 7 M. & W. 102. So,.if the
deed is in court, in the hands of a third
person as mortgagee, who has not been
subpoenaed in the cause, and he declines
to produce it, secondary evidence of its
contents is admissible ; but if the deed is
not in court, and he has not been sub-
poenaed, it is otherwise. In such case, the
person having custody of the deed must
only state the date and names of the par-
ties, in order to identify it. Doe v. Clif-
ford, 2 C. & K. 448. The notice to pro-
duce may be given verbally. Smith v.
Young, 1 Campb. 440. After notice and
refusal to produce a paper, and secondary
evidence given of its contents, the ad-
verse party cannot afterwards produce the
document as his own evidence. Doe v.
Hodgson, 4 P. & D. 142 ; 12 Ad. & El.
lo5, s. c. [Where the plaintiff gave no-
tice to the defendant to produce at the
trial an original contract, and affixed what
purported to be a copy of it to the notice,
and, although the pretended copy was not
in all respects correct, secondary evi-
dence was allowed on the neglect of the
defendant to produce the original, it was
held, that the defendant could not use the
copy attached to the notice, although cer-
tified to be correct by the plaintiff, while
he had the original in his possession.
Bogart V. Brown, 5 Pick. 18. In New
York, it has been held that certain courts
have authority to compel a defendant in a
suit pending therein to produce and dis-
cover books, papers, and documents, in
his pos.iession or power, relating to the
merits of such suit, and if the defendant
refuses to comply, his answer may be
stricken out, and judgment rendered
against him as for a neglect to answer.
Gould i;. McCarty, 1 Kernan, 575. In
Georgia, a party may be required in a
proper case, to produce documents to be
annexed to interrogatories propounded by
the party calling for them ; the courts re-
quiring that a copy of the documents
shall be left in the place of the original to
be used as such in case the original be not
returned, and that the party calling for
the document shall give security to the
party producing it, for its being safely re-
turned. Faircloth v. Jordan, 15 Geo. 511.
Where the counsel in a case have
agreed that either party shall produce
upon notice at the trial, any papers which
may be in his possession, the failure of
the plaintiff (the agent in America of a
firm in London), to produce upon such
notice an invoice of goods consigned to
his principals in London, is not such a
failure to comply with the agreement as
will admit parol testimony of the contents
of the invoice, for it is to be presumed
that the invoice had been forwarded to
the consignees. The offer of the plaintiff
to prove that such was the fact, and the
concession without proof by the defendant
that it was so, preclude him from after-
wards objecting that proof was not given
Turner v. Yates, 16 How. U. S. 14.]
1 Jury V. Orchard, 2 B. & P. 39, 41 ,
Doe V. Somerton, 7 Ad. & El. 58,' n. s. ;
9 Jur. 775, s. o. ; Swain v. Lewis, 2 C. M.
& R. 261.
CHAP. VI.j PRIVATE WRITINGS. 601
1
the defendant has notice that the plaintiff intends to charge him
with possession of the instrument, as, for example, in trover for
a bill of exchange. And the principle of the rule does not require
notice to the adverse party to produce a paper belonging to a
third person, of which he has fraudulently obtained possession ;
as, where, after service of a svhpoena duces tecum, the adverse
party had received the paper from the witness, in fraud of the
subpoena} [ * But where the notice is an act of possession, warn-
1 2 Tidd's Pr. 803. Proof that the ad-
verse party, or his attorney, has the in-
strument in court, does not, it seems, ren-
der notice to produce it unnecessary ; for
the object of the notice is not only to pro-
cure the paper, but to give the party an
opportunity to provide the proper testi-
mony to support, or impeach it. Doe u.
Grey, 1 Starlc. R, 283; Exall v. Par-
tridge, lb. cit. ; Knight v. Marquis of Wa-
terford, 4 Y. & Col. 284, The rule, as to
dispensing with notice, is the same in
equity as at law. 2 Dan. Ch. Pr. 1023.
[A rule of court, that a notice to produce
a paper must precede parol evidence of
its contents, is waived by a party's offer-
ing to produce it. If he then fails to
find it, but asks for no further time, the
parol evidence is admissible. Dwinell v.
Larrabee, 38 Mainei 464. For the pur-
pose of proving that the defendant has
fraudulently conveyed his real estate to
third persons, copies of tlie deeds thereof
from the registry are admissible, the origi-
nals not being presumed to be in the pos-
session of eitlier party to the suit. Blan-
chard v. Young, 11 Cush. 341, 345. But
a registry copy of a deed of land is not
admissible in evidence against the grantee
without notice to him to produce the origi-
nal. Commonwealth v. Emery, 2 Gray,
80, 81 ; Bourne v. Boston, lb. 494, 4U7.
In delivering the opinion of the court in
Commonwealth v. Emery, ut supra, Shaw,
C. J., said, " The rule, as to the use of
deeds as evidence, in this commonwealth,
is founded partly on the rules of common
law, but modified to some extent, by the
registry system established here by stat-
ute. The theory is this ; that an original
deed is in its nature more authentic and
better evidence than any copy can be;
thiit a copy is in its nature secondary ;
and tlierefore in all cases original deeds
should be required, if they can be had.
But as this would be burdensome and ex-
pensive, if not impossible, in many cases,
some relaxation of this rule was necessary
for practical purposes. The law assumes
that the grantee is the keeper of deeds
made directly to himself; wlien then he
VOL. I. 51
has occasion to prove any fact by such
deed, he cannot use a copy, because it
would be ofiering inferior evidence, when
in theory of law the superior is in his own
possession or power. It is only on proof
of the loss of the original, in such case
that any secondary evidence can be re-
ceived. Our system of conveyancing,
modified by the registry law, is, that each
grantee retains the deed made immedi-
ately to himself, to enable him to make
good his warranties. Succeeding gran-
tees do not, as a matter of course, take
possession of deeds made to preceding
parties, so as to be able to prove a chain
of title, by a series of original deeds
Every grantee therefore is tlie keeper of
his own deed, and of his own deed only.
But there is another rule of practice aris-
ing from the registry law, and the usage
under it, which is, that all deeds, before
being offered in evidence as proof of title,
must be registered. The register of deeds
therefore is an officer of the law, with
competent authority to receive, compare,
and record deeds ; his certificate verifies
the copy as a true transcript of the origi-
nal, and the next best evidence to prove
the existence of the deed ; though it fol-
lows as a consequence, that such copy is
legal and competent evidence, and dis-
penses with original proof of its execution
by attesting witnesses. In cases there-
fore, in which the original, in theory of
law, is not in the custody or power of the
party having occasion to use it, the certi-
fied office copy is prima fade evidence of
the original and its execution, subject to
be controlled by rebutting evidence. But
as this arises from the consideration, that
the original is not in the power of the
party relying on it, the rule does not ap-
ply, where such original is, in tlicory of
law, in possession of the adverse party;
because upon notice the adverse party is
bound to produce it, or pat himself in such
position, that any secondary evidence may
be given. Should it he objected that,
upon notice to the adverse party to pro-
duce an original, and tlie tender of a paper
in answer to the notice, the party calling
602 LAW OF EVIDENCE. [PAItT IH.
ing others of the plaintiff's claim, a copy is not evidence, until
the absence of the original is accounted for.^]
§ 562. The notice may be directed to the party, or to his attorney,
and may he served on either ; and it must describe the writing
demanded, so as to leave no doubt that the party was aware of
the particular instrument intended to be called for.^ But as to
the time and place of tlie service, no precise rule can be laid
down, except that it must be such as to enable the party,
under the known circumstances of the case, to comply with the
call. Generally, if the party dwells in another town than that
in which the trial is had, a service on him at the place where the
trial is had, or after he has left home to attend the court, is
not sufficient.^ But if the party has gone abroad, leaving the
cause in the hands of his attorney, it will be presumed that he
left with the attorney all the papers material to the cause, and
the notice should therefore be served on the latter. The notice,
also, should generally be served previous to the commencement
of the trial.i
§ 563. The regular time for calling for the. production of papers
is not until the party who requires them has entered upon his
case ; until which time the other party may refuse to produce
them, and no cross-examination, as to their contents, is usually
for the deed might deny that the paper to quit, see post, vol. 2, §§ 322-324 ; Doe
tendered was tlie true paper called for ; it v. Somerton, 7 Ad. & El. 58.
would be easy to ascertain the identity of * 2 Tidd's Pr. 803 ; Hughes v. Budd, 8
the paper, by a comparison of the contents Dowl. 315 ; Firkin v. Edwards, 9 C. & P.
of tlie paper tendered with the copy of- 478 ; Gibbons v. l^owell. Id. C34 ; Bate v.
fered, and by the official certificate, which Kinsey, 1 C. M. & R. 38 ; Emerson v.
the register of deeds is required to make Fisk, 6 Greenl. 200 ; 1 Paine & Duer's
on the original, when it is recorded. This Pr. 485, 486. The notice must point out,
construction of the rule will carry out the witli some degree of precision, tiie papers
principle on wliich it is founded, to insist required. Notice to produce " all letters,
on tlie better evidence when it can practi- papers, and documents touching or con-
cally be had, and allow the secondary cerning the bill of exchange mentioned in
only when it is necessary."] [* See as to the declaration, and the debt sought to be
&aud, or the form of the action, excusing recovered," has been held too general,
notice to produce papers in the hands of Prance v. Lucy, Ky. & M. 341. 8o, "to
the adversary, Nealley v. Greenougli, 5 produce letters, and copies of letters, and
Foster, 325.] all books relating to this cause." Jones v.
1 [*Lombardo v. Ferguson, 15 Cal. Edwards, 1 McCl. & Y. 139. But notice to
372.] produce all letters written by the party
^ Rogers v. Custance, 2 M. & Rob. 179. to and received by the other, between the
^ George v. Thompson, 4 Dowl. 656 ; years 1837 and 1841, inclusive, was held
Foster v. Pointer, 9 C. & P. 718 ; [Glenn sufficient to entitle the party to call for a
V. Rogers, 3 Md. 312.] See also, as to the particular letter. Morris v. Hauser, 2 M
time of service. Holt v. Miers, 9 C. & P. & Rob. 392. [And as a general rule tlie
191 J Reg. V. ICitsen, 20 Eng. L. cSb Eq. R. notice is not a reasonable one, unless given
690. As to the form and servk'e of notice before the trial is commenced. Choteau
». Itaitt, 20 OJiio, 132.]
CHAP. TI.]
PRIVATE WRITINGS.
603
permitted.^ The production of papers, upon notice, does not make
them evidence in the cause, unless tlie party calling for them
inspects them, so as to become acquainted with their contents ;
in which case, the English rule is, that they are admitted as evi-
dence for both parties.^ The reason is, that it would give an
unconscionable advantage, to enable a party to pry into the affairs
of his adversary for the purpose of compelling him to furnish
evidence against himself, without, at the same time, subjecting
him to the risk of making whatever he inspects evidence for both
parities. But in the American courts, the rule on this subject is
not uniform.^
§ 564. If, on the production of the instrument, it appears to
have been altered, it is incumbent on the party offering it iu evidence,
to explain this appearance.* Every alteration on the face of a
1 Supra, §§ 447, 403, 464. [«But
where the plaintiff on liis examination in
chief denies the existence of a written
contract, the defendant may interpose, and
give evidence upon a collateral issue,
whether there was a Written contract, be-
fore tlie plaintiff is allowed to give evi-
dence of ils terms. Cox o. Couveless, 2
F. & F. 139.]
2 2 Tidd's Pr. 804 ; Calvert v. Flower,
7 0. & P. 386. [So in Maine. Blake v.
Euss, 33 Maine, 360.]
s 1 Paine & Duer's Pr. 484 ; Withers
V. Gillespy, 7 S. & R. 14. The EngUsh
rule was adopted in Jordan «. Wilkins, 2
Wash. C. C. R. 482, 484, n. ; Randel v.
Chesapeake & Del. Can. Co. 1 Harringt.
R. 233, 284; Penobscot Boom Corp. v.
Lamson, 4 Shepl. 224 ; Anderson !;. Root,
8 Sm. & M. 362; Commonwealth v. Da-
vidson, 1 Gush. 33. [A party who pro-
duces a paper at the trial on the call of
the adverse party is not entitled to read
such paper in evidence for himself, after
the party calling for it has inspected it,
and declined to read it, unless it appear to
be the identical instrument called for.
Reed v. Anderson, [* 12 Cash. 481 ; Clark
V. Fletcher, 1 Allen, 53. But in Nevv Hamp-
shire, in a recent case, Austin K.Tliompson,
45 N. Ilanip. , the question is thor-
ouglily reviewed, and the English rule,
stated above, denied, and it seems to us
the reason of the thing is in favor of the
rule here maintained.]
* The Roman Civil Law on the sub-
ject of alterations agrees in the main with
the common law; but the latter, in this
as in other cases, has greatly the advan-
tage, in its facility of adaptation to tlie
actual state of the facts. The general rule
is the same, in both codes. Rasa scrip-
tura falsa pra3sumitar, et tanquam falsa
rejicitur; praesertim quando rasura facta
est per eum, qui utitur instrumento raso.
Mascard. vol. 4 ; .Concl. 1261, n. 1, 3.
But if immaterial, or free from suspicion,
an alteration or rasure does not vitiate.
Si rasura non sit in loco substantiali, et
suspecto, non reddit falsum instrumentum.
Id. n. 9. If it appeared, on its face, to
be the autography of the notary who drew
the instrument, that is, a contempora-
neous act, it was by some deemed valid ;
quaravis scriptura sit abrasa in parte sub-
stantiali, sed ita bene rescripta, ut aperte
dignoscatur, id manu ejusdem Notarii fu-
isse. Id. n. 14. But otiiers contended,
that this was not sufficient to remove all
suspicion, and render the instrument
valid, unless the alteration was mentioned
and explained at the end of the instru-
ment. Si Notarius erravit in scriptura,
ita ut oporteat aliquid radere et reponere,
vel facere aliquam lineam in margine, de-
bet, ad evitandam suspicionem, in fine
scripturae ac chirograplii continuando fa-
cere mentionem, qualiter ipse .ibrasit tale
verbum, in tali linea, vel facit talem line-
am in margine. Id. n. 16. But, in the
absence of all evidence to the contrary, it
seems that alterations were presun)cd to
be contemporaneous with the execution of
the instrument. In dubio autem hujus-
modi abrasiones seu cancellationes pra;-
sumuntur semper factDa tempore concep-
tionis scriptural, antequam absoluta fuerit.
Id. n. 18. If the suspicion, arising from
the alteration wlien considered by itself,
were removed, by taking it in connection
witli the context, it was sufficient; — cum
verba antecedentia et sequentia demon-
604
LAW OP EVIDENCE.
[part ni.
written instrument detracts from its credit, and renders it suspi-
cious ; and this suspicion the party, claiming under it, is ordi-
narily held bound to remove. ^ If the alteration is noted in the
attestation clause, as having been made before the execution of
the instrument, it is sufficiently accounted for, and the instrument
is relieved from that suspicion. And if it appears in the same
handwriting and ink with the body of the instrument, it may
suffice. So, if the alteration is against the interest of the party
deriving title under the instrument, as, if it be a bond 'or note,
altered to a less sum, the law does not so far presume that it was
improperly made, as to throw on him the burden of accounting
for it.^ And, generally speaking, if nothing appears to tlie con-
trary, the alteration will be presumed to be contemporaneous with
the execution of the instrument.^ ■ But if any ground of susjpicion
strant necessario ita esse legendum, ut in
rasura scripturse reperitur. Id. n. 19.
The instrument miglit also be lield good
at the discretion of the judge, if the origi-
nal reading were still apparent — si sensus
rectus percipi potest — notwithstanding the
rasure ; Id. n. 20 ; or if the part erased could
be ascertained by other instruments ; — si
per alias scripturas pars abrasa declarari
possit. Id. n. 21. If the instrument were
produced in court by the adverse party,
upon legal compulsion, no alterations
apparent upon it were permitted to ope-
rate to the prejudice of the instrument,
against the party calling for its produc-
tion. Si scriptura, ac instrumentum repe-
riatur penes adversarium, et judex eum
cogit tale instrumentum exhibere in judi-
cio ; quamvis enim eo casu scriptura sit
abrasa in parte substantial! ; tamen non
vitiata, nee falsa redditur contra me, et in
mei praej udicium ; imo, ei prasstatur fldes
in omnibus, in quibus ex iUa potest sumi
sensus ; praesumitur enim adversarium
dolose abrasisse. Abrasio, sive cancella-
tio, priKsumitur facta ab eo penes quera
repetitur instrumentem. Id. n. 22, 23.
And if a written contract or act wore exe-
cuted in duplicate, an alteration of one of
the originals was held not to operate to
the inj ury of the other. Si de eadem re,
et eodeni contractu, fuerint conlectas duae
scripturfE, sive instrumenta, abrasio in uno
harum scripturarum, etiara substantial!
loco est altcrum non vitiat. Id. n. 24.
1 Perk. Conv. 55 ; Henman v. Dickin-
son, 5 Bing. 183, 184 ; Kniglit v. Clem-
ents, 8 Ad. & El. 216; Newcombe v. Pres-
brey, 8 Mpt. 406. But where a farm was
devised from year to year by parol, and
afterwards, an agreement was signed, con-
taining stipulations as to the mode of till-
age, for breach of which an, action was
brought, and, on producing the agree-
ment, it appeared that the term of years
had been written seven, but altered to
fourteen ; it was held that tliis alteration,
being immaterial to the parol contract, need
not be explained by tlie plaintiff. Earl of
Ealmouth v. Roberts, 9 M. & W. 469.
See further, Cariss v. Tattershall, 2 IVIan.
& Gr. 890 ; Clifford v. Parker, Id. 909.
2 Bailey K. Taylor, 11 Conn. R. 531;
Coulson V. Walton, 9 Pet. 789.
3 Trowell v. Castle, 1 Keb. 22; Fitz-
gerald V. Fauconberg, Fitzg. 207, 213 ; Bai-
ley V. Taylor, 11 Conn. R. 531, 534;
Gooch V. Bryant, 1 Shepl. 386, 390 ; Crab-
tree i". Clark, 7 Shepl. 337 ; Vanhorne v.
Dorrance, 2 Dall. 308. And see PuUen
V. Hutchinson, 12 Sliepl. 249, 264 ; Wiok-
ofF's Appeal, 3 Am. Law Jour. 493, 503,
N. s. In Morris v. Vanderen, 1 Dall. 67,
and Prevost v. Gratz, 1 Pet. C. C. R.
364, 369, it was held, that an alteratiou
should be presumed to liave been made
after the execution of the instrument ; but
this has been overruled in the United
States, as contrary to the principle of the
law, which never presumes wrong. The
reporter's marginal notes in Burgoyne v.
Showier, 1 Rob. Eccl. R. 5, and Cooper v.
Brockett, 4 Moore, P. C. C. 419, state the
broad proposition, that alterations in a
will, not accounted for, are prima facie pre-
sumed to have been made after its execu-
tion. But, on e.xamination of these cases
they are found to turn entirely on the pro-
visions of the Statute of Wills, 1 Vict. c. 26
§ 21, which directs that all alterationsi
made before the execution of the wiU, be
noted in a memorandum upon the xvilL
CHAP. TI.]
PEIVATB WRITINGS.
605
is apparent upon the face of the instrument, the law presumes
nothing, but leaves the question of the time when it was done as
well as that of the person by whom, and the intent with which the
alteration was made, as matters of fact, to be ultimately found by
the jury, upon proofs to be adduced by the party offering the
instrument in evidence.^
and attested by the testator and witnesses.
If this direction is not complied with, it
may well be presumed that the alterations
were subsequently made. And so it was
held, ujion the language of that statute,
and of the statute of frauds respecting
wills, in Doe v. Palmer, 15 Jur. 836, 839;
in which the case of Cooper v. Brockets
was cited by Lord Campbell, and approved,
upon the ground of the statute. The ap-
plication of this rule to deeds was denied
in Doe v. Catamore, 15 Jur. 728 ; 5 Eng.
Law & Rep. 349, [and cases cited in note] ;
where it was held, that if the contrary be
not proved, the interlineation in a deed is
to be presumed to have been made at the
time of its execution. And see Co. Lit.
225 6, and note by Butler ; Best on Pre-
sumptions, § 75.
In the case of alterations in a will, it
was held, in Doe v. Palmer, supra, that
the declarations of the testator were ad-
missible, to rebut the presumption of
fraud in the alterations. [In the absence
of evidence or circumstances from which
an inference can be drawn as to the time
when it was made, every alteration of
an instrument will be presumed to have
been made after its execution. Burnham
u.A.yTe, 20 Law Eep. (10 u. s.) 339.]
1 The cases on this subject are not in
perfect harmony; but they are under-
stood fully to support the doctrine in the
text. They all agree, that where any
suspicion is raised as to the genuineness
of an altered instrument, whether it be
apparent upon inspection, or made so by
extraneous evidence, the party producing
the instrument, and claiming under it, is
bound to remove the suspicion by ac-
counting for the alteration. It is also
generally agreed, that inasmuch as fraud
is never to be presumed, therefore, if no
particular circumstances of suspicion at-
tach to an altered instrument, the altera-
tion is 1o be presumed innocent, or made
prior to its execution. Gooch v. Bryant,
1 Shepl. 386 ; Crabtree v. Clark, 7 Shepl.
837 ; Wickes v. Caulk, 5 H. & J. 41 ; Gil-
let V. Sweat, 1 Gilm. 475; Doe v. Cata-
more, 15 Jur. 728 ; 5 Eng. Law & Eq. R.
849 [and cases cited in note] ; Co. Lit.
225 4, note by Butler ; [Boothby v. Stan-
ley, 34 Maine, 115 ; North River Meadow
Co. V. Shrewsbury Church, 2 N. J. 424.
In an action to foreclose a mortgage, the
burden of proof is on the plaintiff to show
that the interlineations, alterations, and
erasures therein were made before, or at
the time of its execution, and there is no
presumption that they were so made, or
that they were made without fraud. Ely
y. Ely, 19 Law Eep. {9 k. s.) 697. See
also Wilde v. Armsby, 6 Cush. 314 ;
Acker v. Ledyard, 8 Barb. 514 ; Jordan v.
Stewart, 28 Penn. St. R. 244 ; Hunting-
ton V. Finch, 3 Ohio (n. s.), 445.] In
Jackson v. Osborn, 2 Wend. 555, it was
held, that the party claiming under a
deed was bound to account for the altera-
tions in it, and that no presumption was
to be made in its favor ; but in Bailey v.
Taylor, 11 Conn. 531, it was held, that
nothing was to be presumed, either way,
but the question was to be submitted
freely to the jury.
But an exception to this rule of the
presumption of innocence seems to be ad-
mitted in the case of negotiable paper ; it
having been held, that the party pro-
ducing and claiming under the paper is
bound to explain every apparent and
material alteration, the operation of which
would be in his own favor. Knight v.
Clements, 8 Ad. & El. 215;' Clifford v.
Parker, 2 M. & G. 909; Simpson v. Stack-
house, 9 Barr, 186 ; McMicken v. Beau-
champ, 2 Miller, Louis. 11. 290. See also
Henman v. Dickinson, 5 Bing. 183;
Bishop V. Chambre, 3 C. & P. 55;
Humphreys v. Guillow, 13 N. Hamp. 385 ;
Hills V. Barnes, 11 N. Hamp. 395 ; Taylor
V. Moselv, 6 C. & P. 273; Whitfield v.
Collingwood, 1 Car. & lOr. 325 ; Davia
V. CarUsle, 6 Ala. 707 ; Walters v. Short,
5 Gilm. 252; Cariss v. Tattershall, 2 M. &
G. 890. But in Davis v. Jenney, 1 Met.
221, it was held that the burden of proof
was on the defendant. [Clark v. Eck-
stein, 22 Penn. State E. 507; Paine v.
Edsell, 19 lb. 178. See also Agawam
Bank v. Sears, 4 Gray, 95, 97.]
Another exception has been allowed,
where the instrument is, by ihe rules of
practice, to be received as genuine, unless
its genuineness is denied on oath by the
party, and he does so ; for his oath is
deemed sufiScient to destroy the presump-
61*
606
LAW OF EVIDENCE.
[part m.
§ 565. Though the effect of the alteration of a legal instrument
is generally discussed with reference to deeds, yet the principle is
applicable to all other instruments. The early decisions were chiefly
upon deeds, because almost all written engagements were anciently
in that form ; but they establish the general proposition, that
written instruments, which are altered, in the legal sense of that
term, as hereafter explained, are thereby made void} The grounds
of this doctrine are twofold. The first is that of public policy, to
prevent fraud, by not permitting a man to take the chance of
committing a fraud without running any risk of losing by the
event, when it is detected.^ The other is, to insure the identity
of the instrument, and prevent the substitution of another, without "
the privity of the party concerned.^ The instrument derives its
tion of innocence in regard to the altera-
tion, and to place the instrument in the
condition of a suspected paper. Walters
V. Short, 6 Gilm. 252.
It is also clear, that it is for the court
to determine, in the first instance, whether
the alteration is so far accounted for, as to
permit the instrument to be read in evi-
dence to the jury, who are the ultimate
judges of the tkct. Tillou v. The Clin-
ton, &c. Ins. Co. 7 Barh. 564 ; Eoss v.
Gould, 5 Greenl. 204. [But see Clark v.
Eckstein, 22 Penn. State R. 507.] But
whether^ in the absence of all other evi-
dence, the jury may detennine the time
and character of the alteration from in-
spection alone is not universally agreed.
In some cases they have been permitted
to do so. Bailey v. Taylor, 11 Conn.
531; Gooch v. Bryant, 1 Shepl. 386;
Crabtree v. Clark, 7 Shepl. 837 ; Doe v.
Catamore, 15 Jur. 728, 5 Eng. Law & Eci.
K. 349 ; Vanhorne v. Doi-rance, 2 Dall. 306 ;
[Printup V. Mitchell, 17 Geo. 558.] And
see Wickes v. Caulk, 5 H. & J. 41 ; PuUen
V. Shaw, 3 Dev. 238 ; in which last case
it was held, that where the alteration was
apparently against the interest of the
holder of the instrument, it should be
presumed to have been made prior to its
execution. But in some other cases, the
courts have required the exhibition of
some adminicular proof, being of opinion
that the jury ought not to be left to con-
jecture alone, upon mere inspection of
the instrument. See Knight v. Clements,
Clifford V. Parker, and Cariss v. Tatter-
shall, supra.
Other cases, in accordance with the
rules above stated, are the following
Cumberland Bank v. Hall, 1 Halst. 215
Sayre v. Reynolds, 2 South, 737,
Mathews v. Coalter, S Mis. 705 ; Herrick
Malin, 22 Wend. 388 ; Barrington v. Bank
of Washington, 14 S. & R. 405; Horry
District v. Hanion, 1 N. & McC. 554; Haf-
felfinger v. Shutz, 16 S. & R. 44; Bea
man v. Russell, 20 Verm. 205. In this
last case, the subject of alterations is very
fully considered, and the authorities
classed and examined in the able judg-
ment delivered by Hall, J^ Where an
alteration is apparent, it has been held,
that the party impeaching the mstrument
may prove collateral facts of a general
character, such as alterations in other
notes, which formed the consideration for
the note in question, tending to show that
the alteration in it was fraudulent. Ran
kin V. Blackwell, 2 -Johns. Cas. 198.
1 Masters v. Miller, 4 T. R. 329, 330 ;
Newell V. Mayberry, 3 Leigh, R. 250.
[A probate bond executed by a principal
and two sureties was altered by tlie judge
of probate, with the consent of the prin-
cipal, but without the knowledge of the
sureties, by increasing the penal sum, and
was then executed by two additional sure-
ties who did not know of the alteration,
and was approved by the judge of pro-
bate, and it was held that the bond,
though binding on the principal, was void
as to all the sureties. Howe v. Peabody,
2 Gray, 656. See Taylor v. Johnson, 17
Geo. 521; Phillips v. Wells, 2 Sneed,
154; Ledford v. Vandyke, Busbee, Law,
480 ; Burchfield v. Moore, 25 Eng. Law &
Eq. 123.]
2 Masters v. Miller, 4 T. R. 329, per
Ld. Kenyon.
' Sanderson v. Symonds, 1 B. & B.
430, per Dallas, C. J. It is on this ground
that the alteration of a deed, in an imma-
terial part, is sometimes fatal, where its
identity is put in issue by the pleadings,
every part of the writing being then ma-
CHAP. VI.J PRIVATE WRITINGS. 607
legal virtiie from its being the sole repository of the agreement
of the parties, solemnly adopted as such, and attested by the
signature of the party engaging to perform it. Any alteration,
therefore, -whicla causes it to speak a language diiferent in legal
effect from that which it originally spake, is a material alteration.
§ 566. A distinction, however, is to be observed, between the
alteration and the spoliation of an instrument, as to the legal con-
sequences. An alteration is an act done upon the instrument, by
which its meaning or language is changed. If what is written
upon or erased from the instrument has no tendency to produce
tliis result, or to mislead any person, it is not an alteration. The
term is, at this day, usually applied to the act of the party entitled
under the deed ©r instrument, and imports some fraud or improper
design on his part, to change its effect. But the act of a stranger,
without the participation of the party interested, is a mere spolia-
tion, or mutilation of the instrument, not changing its legal opera-
tion, so long as the original writing remains legible, and, if it be
a deed, any trace remains of the seal. If, by the iililawful act
of a stranger, the instrument is mutilated or defaced, so that its
identity is gone, the law regards the act, so far as the rights of tlie
parties to the instrument are concerned, merely as an accidental
destruction of primary evidence, compelling a resort to that which
is secondary; and, in such case, the mutilated portion may be
admitted as secondary evidence of so much of the original instru-
ment. Thus, if it be a deed, and the party would plead it, it can-
not be pleaded with a profert, but the want of profert must be
excused by an allegation that the deed, meaning its legal identity
as a deed, has been accidentally, and without the fault of the
party, destroyed.^ And whether it be a deed or other instrument,
terial to the identity. See supra, §§ 58, tent, has been treated as a merely accident-
69; Hunt v. Adams, 6 Mass. 521. al spoliation. Henfree v. Bromley, 6 East,
1 Powers V. Ware, 2 Pick. 451 ; Read 309 ; Cutts, in error, v. United States, 1
V. Brookman, 3 T. R. 152 ; Morrill v. Otis, Gall. 69 ; United States v. Spalding, 2 Ma-
12 N. Hamp. R. 466. The necessity of . son, 478 ; Rees v. Overbaugh, 6 Cowen,
some fraudulent intent, carried home to 746; Lewis v. Payn, 8 Cowen, 71; Jackson
the party claiming under the instrument, v. Malin, 15 Johns. 297, per Piatt, J. ; Nich-
in order to render the alteration fatal, was ols v. Johnson, 10 Conn. 192; Marshall v.
strongly insisted on by BuUer, J., in Mas- Gougler, 10 S. & R. 164 ; Palm. 403 ;
ters V. Miller, 4 T. R. 334, 335. And, on Wilkinson v. Johnson, 3 B. & C. 428 ;
this ground, at least tacitly assumed, the Kaper v. Birkbeck, 15 East, 17 ; [Boyd v.
M cases, to the effect that an alteration McConnell, 10 Humph. 68 ; Lee v. Alex-
of a deed by a stranger, in a material ander, 9 B. Mon. 25.] The old doctrine,
part, avoids the deed, have been over- that every material alteration of a deed,
ruled. In the following cases, the ailtera- even by a stranger, and without privity
tion of a writing, without fraudulent in- of either party, avoided the deed, was
608 LAW OP EVIDENCE. [PABT ni
its original tenor must be substantially shown, and the alteration
or mutilation accounted for, in the same manner as if it were
lost.
§ 567. In considering the effect of alterations made ly the party
himself, who holds the instrument, 2i. further distinction is to be
observed between the insertion of those words which the law would
supply, and those of a different character. If the law would have
supplied the words which were omitted, and were afterwards
inserted by the party, it has been repeatedly held, that even his
own insertion of them will not vitiate the instrument ; for the
assent of the obliger will, in such cases, bo presumsd. It is not
an alteration in the sense of the law, avoiding the instrument ;
although, if it be a deed, and to be set forth in hcec verba, it should
be recited as it was originally written.^
§ 568. It has been strongly doubted, whether an immaterial
alteration in any matter, though made by the obligee himself, will
avoid 'the instrument, provided it be done innocently, and to no
injurious purpose.^ But if the alteration be fraudidently made, by '
the party claiming under the instrument, it does not seem im-
portant whether it be in a material or an immaterial part ; for, in
either case, he has brought himself under the operation of the rule
established for the prevention of fraud ; and, having fraudulently
destroyed the identity of the instrument, he must take the peril
of all the consequences.^ But here, also, a further distinction is
strongly condemned by Story, J., in Unit- indorsed by a surety. It was afterwards
ed States v. Spalding, supra, as repugnant altered by the payee and maker, without
to common sense and justice, as inflicting the knowledge of the surety, so as to be
on an innocent party all the losses occa- payable to the same partnership by a dif-
sioned by mistake, by accident, by the ferent name. In an action on the note by
wrongful acts of third persons, or by the payee against the surety, it was held,
the providence of Heaven ; and which that the alteration was immaterial, and
ought to have the support of unbroken that it did not affect the validity of the
authority before a court of law was bound note. Arnold v. Jones, 2 R. I. 345. The
to surrender its judgment to what de- making a note payable at a particular
served no better name than a technical place is a material alteration. Burchfield
quibble. [Goodfellow v. Inslee, 1 Beas- v. Moore, 25 Eng. Law & Eq. R. 123. See
ley, 355.] also Warrington v. Early, 22 lb. 208.]
1 Hunt V. Adams, 6 Mass. 519, 522 ; ^ If an obligee procure a person, who
Waugh w. Bussell, 5 Taunt. 707 ; Paget v. was not present at the execution of the
Paget, 3 Chan. Rep. 410 ; Zouoh v. Clay, bond, to sign his name as an attesting
1 Ventr. 186 ; Smith v. Crocker, 5 Mass. witness, this is prima facie evidence of
538 ; Hale v. Russ, 1 Greenl. 334 ; Knapp fraud, and voids the bond. Adams v.
V. Maltby, 13 Wend. 587 ; Brown v. Erye, 3 Met. 103. But it is competent for
Pinkham, 18 Pick. 172. the obligee to rebut the inference of fraud,
2 Hatch V. Hatch, 9 Mass. 311, per by proof that the act was done without
Sewall, J. ; Smith v. Dunbar, 8 Pick, any fraudulent purpose ; in which case
246; [Reed v. Kemp, 16 111. 445. A the bond will not be thereby rendered
promissory note was made payable to a void. Ibid. And see Homer v. Wallls,
partnership under one. name, and was so 11 Mass. 809 ; Smith v. Dunham, 8 Pidc
CHAP. VI.] PRIVATE WHITINGS. 609
to be observed, between deeds of conveyance and covenants ; and
also between covenants or agreements executed, and those which
are still executory. For if the grantee of land alter or destroy his
title-deed, yet his title to the land is not gone. It passed to him
by the deed ; the deed has performed its office, as an instrument
of conveyance ; and its continued existence is not necessary to the
continuance of title in the grantee ; but the estate remains in him,
until it has passed to anotlier by some mode of conveyance recog-
nized by the law.^ The same principle applies to contracts exe-
cuted, in regard to the acts done under them. If the estate lies in
grant, and cannot exist without deed, it is said that any alteration,
by the party claiming the estate, will avoid the deed as to him,
and tliat therefore the estate itself, as well as all remedy upon the
deed, will be utterly gone.^ But whether it be a deed conveying
real estate or not, it seems well settled that any alteration in the
instrument, made by the grantee or obligee, if it be made with a
fraudulent design, and do not consist in the insertion of words
which the law would supply, is fatal to the instrument, as the
foundation of any remedy at law, upon the covenants or undertak-
ings contained in it.^ And, in such case, it seems that the party
will not be permitted to prove the covenant or promise, by other
evidence.* But where there are several parties to an indenture,
246. But this latter point was decided part of a bond given by a trustee to show
otherwise in Marshall v. Gougler, 10 S. & the interest of a cestui que trust, made with-
R. 164. And where the holder of a bond out the knowledge of the trustee, by a
or a note under seal procured a person to party beneficially interested therein, will
alter the date, for the purpose of correct- destroy the bond, but will not operate to
ing a mistake In the year and making it destroy an estate which existed before,
conform to the truth, this was held to and independently of, the bond. Wil-
aroid the bond. Miller v. Gilleland, s. c. liams v. Van Tuyl, 2 Ohio, n. s. 336.]
Pa. 1; 1 Am. Law Reg. 672. iow,Tte ^ Moore v. Salter, 3 Bulstr. 79, per
and Woodward, Js. dissenting. Coke, C. J. ; Lewis v. Payn, 8 Cowen,
1 Hatch V. Hatch, 9 Mass. 307 ; Dr. 71 ; supra, § 265.
Leyfield's ease, 10 Co. 88 ; Bolton v. Car- ^ Ibid ; Davidson v. Cooper, 11 M. &
lisle, 2 H. Bl. 359 ; Davis v. Spooner, 3 W. 778 ; Jackson v. Gould. 7 Wend. 364 ;
Pick. 284; Barrett v. Thorndike, 1 Hatch w. Hatch, 9 Mass. 307 ; Barrett ».
Greenl. 78 ; Lewis v. Payn, 8 Cowen, 71 ; Thorndike, 1 Greenl. 73 ; Withers v. At-
Jackson v. Gould, 7 Wend. 364; Beck- kinson, 1 Watts, 236; Arrison v. Harm-
row's case, Hetl. 138; [Tibeau v. Tibeau, stead, 2 Barr, 191; Whitmer v. Frye, 10
19 Mis. 78.] Whether the deed may still Missouri, R. 348 ; MoUett v. Wacker-
be read by the party, as evidence of title, barth, 5 M. Gr. & So. 181 ; Agriculturist
is not agreed. That it may be read, see Co. v. Fitzgerald, 16 Jur. 489 ; 4 Eng. L.
Doe V. Hirst, 3 Stark. R. 60; Lewis v. &. Eq. R. 211.
Payn, 8 Cowen, 17 ; Jackson v. Gould, 7 * Martindale v. FoUett, 1 N. Hamp.
Wend. 364. That it may not, see Babb 95 ; Newell v. Mayberry, 3 Leigh, R. 250 ;
V. Clcmson; 10 S. & B. 419; Withers u. Blade v. Nolan, 12 Wend. 173; Arrison v.
Atkinson, 1 Watts, 236 ; Chesley v. Frost, Harmstead, 2 Barr, 191. The strictness
1 N. Harap. 145 ; Newell v. Mayberry, 3 of the English rule, that every alteration
Leigh, R. 250 ; Bliss v, Mclntyre, 18 of a bill of exchange, or promissory note,
Verm. 466. [An alteration in a material even by consent of the parties, renders it
610 LAW OP EVIDENCE. [PAHT IH.
some of whom have executed it, and in the progress of the trans*
action it is altered as to those who have not signed it, without the
knowledge of those who have, but yet in a part not at all affecting
the latter, and then is executed by the residue, it is good as to
all.i
§ 568a. In all these cases of alterations, it is further to be re-
marked, that they are supposed to have been made without the
consent of the other party. For, if the alteration is made by con-
sent of parties, such as by filling up of blanks, or the like, it is
valid.2 But here, also, a distinction has been taken between the
insertion of matter, essential to the existence and operation of the
instrument as- a deed, and that which is not essential to its opera-
tion. Accordingly it has been held that an instrument, which,
when formally executed, was deficient in some material part, so
as to be incapable of any operation at all, and was no deed, could
not afterwards become a deed by being completed and delivered by
a stranger, in the absence of the party who executed it, and unau-
thorized by an instrument under seal.^ Yet this rule, again, has
its exceptions, in divers cases, such as powers of attorney to trans-
fer stock,* navy bills,® custom-house bonds,^ appeal bonds,'' bail
bonds,^ and the like, which have been held good, though executed
in blank and afterwards filled up by parol authority only..^
utterly void, has particular reference to * Commercial Bank of Buflalo p.-
the stamp act of 1 Ann. stat. 2, c. 22. Kortwright, 22 Wend. 348.
Chitty on Bills, pp. 207-214. 6 pg^ Wilson, J., in Masters v. Miller,
1 Doe V. Bingham, 4 B. & Aid. 672, 1 Anstr. 229,
675, per Bayley, J. ; Hibblewhite v. Mc- « 22 Wend. 366.
Morine, 6 M. & W. 208, 209. ' Ex parte Decker, 6 Cowen, 59 ; Ex
2 Markham v Gonaston, Cro. El. 626; parte Kerwin, 8 Cowen, 118.
Moor, 547 ; Zouch v. Clay, 1 Ventr. 185 ; « n^le v. Buss, 1 Greenl. 334 ; Gordon
2 Lev. 35. So, where a power of attor- v. Jeffreys, 2 Leigh, R. 410 ; Vanhook v.
ney was sent to B, with his christian name Barrett, 4 Dev. Law R. 272. But see
in blank, which he filled by inserting it, Harrison v. Tiernans, 1 Randolpli, R. 177 ;
this was held vaUd. Eagleton v. Gutter- Gilbert v. Anthony, 1 Yerger, 69.
idge, 11 M. & W. 468. This consent may " In Texira v. Evans, cited 1 Anstr,
be implied. Hale v. Russ, 1 Greenl. 34; 228, where one executed a bond in blank,
Smith V. Crooker, 5 Mass. 538 ; 19 Johns, and sent it into the money-market to raise
396, per Kent, C. ; [Plank-Road Co. v. a loan upon, and it was negotiated, and
Wetsel, 21 Barb. 56 ; Ratcliff v. Planters' filled up by parol authority only, Lord
Bank, 2 Sneed, 425; Shelton v. Deering, Mansfield held it a good bond. This de-
10 B. Mon. 405. Where the date of a cision was questioned by Mr. Preston in
note under seal was altered from 1836 to his edition of Shep. Touchst. p. 68, ami it
1838, at the request of the payee, and in was expressly overruled in Hibblewhite v.
the presence of the surety, but without McMorine, 6 M. & W. 215. It is also
his assent, the note was avoided as to the contradicted by McKee v. Hicks, 2 Dev.
Burety. Miller v. Gilleland, 19 Penn. St. Law R. 379, and some other American
R. 119.] cases. But it was confirmed m Wiley v.
s Hibblewhite v. McMorine, 6 M. & Moor, 17 S. & R. 438 ; Knapp v. Maltby,
W. 200, 216. 13 Wend. 587 ; Commercial Bark of B.if-
CHAP. VI.]
PRIVATE WRITINGS.
611
§ 569. The instrument, being thus produced and freed from
suspicion, must be proved by the subscribing witnesses, if there be
any, or at least by one of tliem.^ Various reasons have been
falo V. Kortwright, 22 Wend. 348 ; Board-
man V. Gore, 1 Stewart, Alab. R. 517 ;
Duncan v. Hodges, 4 McCord, 239 ; and
in several other cases the same doctrine
has been recognized. In the United
States V. Nelson, 2 Brockenbrough, R. 64,
74, 75, which was the case of a paymas-
ter's bond, executed in blank and after-
wards filled up, Chief-Justice Marshall,
before whom it was tried, felt bound by
the weight of authority, to decide against
the bond ; but expressed his opinion, that
in principle it was valid, and his belief
that his judgment would be reversed in
the Supreme Court of the United States ;
but. the cause was not carried farther.
Instruments executed in this manner
have become very common, and the au-
thorities as to their validity are distress-
ingly in conflict. But upon the principle
adopted in Hudson v. Revett, 5 Bing. 368,
there is very little difficulty in liolding
such instruments valid, and thus giving
full effect to the actual intentions of the
parties, without the violation of any rule
of law. In that case, the defendant exe-
cuted and delivered a deed, conveying his
property to trustees, to sell for the benefit
of his creditors, the particulars of whose
demands were stated in the deed ; but a
blank was left for one of the principal
debts, the exact amount of which was
subsequently ascertained and inserted in
the deed, in the grantor's presence, and
with his assent, by the attorney who had
prepared the deed and had it in his posses-
sion, he being one of the trustees. The
defendant afterwards recognized the deed
as valid, in various transactions. It was
held that the deed was not intended to be
a complete and perfect deed, until all the
blanks were filled, and that the act of
the grantor, in assenting to the fill-
ing of the blank, amounted to a de-
livery of the deed, thus completed. No
formality, either of words or action, is
prescribed by the law as essential to de-
livery. Nor is it material how or when
the deed came into the hands of the
grantee. Delivery, in the legal sense,
consists in the transfer of the possession
and dominion ; and whenever the grantor
assents to the possession of the deed by
the grantee, as an instrument of title,
then, and not until then, the delivery is
complete. The possession of the instru-
ment by the grantee may be simultaneous
with this act of the grantor's mind, or it
may have been long before ; but it is this
assent of the grantor which changes the
character of that prior possession, and im-
parts validity to the deed. Mr. Preston
observes that " all cases of this sort de-
pend on the inquiry whether the intended
grantor has given sanction to the instru-
ment, so as to make it conclusively his
deed." 3 Preston on Abstracts, p. 64.
And see Parker v. Hill, 8 Met. 447 ; Hope
V. Harman, 11 Jur. 1097 ; post, vol. 2, §
297. The same effect was given to clear
and unequivocal acts of assent en pais, by
a feme mortgagor, after- the death of her
husband, as amounting to a redelivery
of a deed of mortgage, executed by her
while a feme covert. Goodright v.
Straphan, Cowp. 201, 204 ; Shep.
Touchst. by Preston, p. 58. " The general
rule," said Mr. Justice Johnson, in de-
livering the judgment of the court, in
Duncan v. Hodges, " is, that if a blank be
signed, sealed, and delivered, and after-
wards written, it is no deed; and the
obvious reason is, that as there was noth-
ing of substance contained in it, nothing
could pass by it. But the rule was never
intended to prescribe to the grantor tlie
order of time, in which the several parts
of a deed should be written. A thing to
be granted, a person to whom, and the
sealing and delivery, are some of those
which are necessary, and the whole is
consummated by the delivery ; and if the
grantor should think proper to reverse
this order, in the manner of execution,
but in the end makes it perfect before de-
livery, it is a good deed. See 4 McCord,
R. 239, 240. Whenever, therefore, a deed
is materially altered, by consent of the
parties, after its formal execution, the
grantor or obligor assents that the grantee
or obUgee shall retain it in its altered and
completed form, as an instrument of title ;
and this assent amounts to a deUvery or
redelivery, as the case may require, and
warrants the jury in finding, accordingly.
Such plainly was the opinion of the
learned judges in Hudson v. Revett, as
stated by Best, C. J., in 5 Bing. 388, 389 ;
and further expounded in West v. Stew
ard, 14 M. & W. 47. See also Hartley u.
Manson, 4 M. & G. 172; Story on Bail-
ments, § 55. [Filling in the date of a
warrant of attorney after execution is not
such an alteration as will avoid the in-
strument. Keane v. Smallbone, 33 Eng.
Law & Eq. 198.]
1 A written instrument, not attested
by a subscribing witness, is sufficiently
612
LAW OP EVIDENCE.
[PABT ni
assigned for this rule ; but that upon which it seems best founded
is, that a fact may be known to the subscribing witness, not
within the knowledge or recollection of the obligor ; and that he is
entitled to avail himself of all the knowledge of the subscribing
witness, relative to the transaction.^ The party, to whose execu-
tion he is a witness, is considered as invoking him, as the person
to whom he refers, to prove what passed at the time of attesta-
proved to authorize its introduction, by
competent proof that the signature of the
person, whose name is undersigned, is
genuine. The party producing it is not
required to proceed further upon a mere
suggestion of a false date when there are
no indications of falsity found upon the
paper, and prove, that it was actually
made on the day of the date. After
proof that the signature is genuine, the
law presumes that the instrument in all
its parts is genuine also, when there are
no indications to be found upon it to
rebut such a presumption. See PuUen
V. Hutchinson, 12 Sliepl. 254, per Shep-
ley, J.
In regard to instruments duly attested,
the rule in the text is applied where the in-
strument is the foundation of the party's
claim, or he is privy to it, or where it pur-
ports to be executed by his adversary ;
but not where it is wholly inter alios, un-
der whom neither party can claim or
deduce any right, title, or interest to him-
self. Ayres v. Hewett, 1 Applet. 286, per
Whitman, C. J.
In Missouri, two witnesses are required
to prove the signature of a deceased sub-
scribing witness to a deed. Eev. Stat.
1845, ch. 32, § 22. See supra, § 260, note.
In Virginia, every written instrument
is presumed to be genuine, if the party
purporting to have signed it be Uving, un-
less he will deny the signature, on oath.
Eev. Stat. 1849, eh. 98, § 85. So, in
Illinois. Linn v. Buckingham, 1 Scam.
451. And see Missouri, Rev. Stat. 1835,
p. 463, §§ 18, 19. Texas, Hartley's Dig.
I 741. Delaware, Eev. Stat. 1852, ch.
106, § 5.
In South Carolina, the signature to a
bond or note may be proved by any other
person, without calling the subscribing
witness ; unless the defendant will swear
that it is not his signature, or that of his
testator or intestate, if the case be such.
Stat, at Large, vol. 5, p. 434. And for-
eign deeds, bonds, &c., attested to have
been proved on oath before a notary or oth-
er magistrate qualified therefor, are admis-
sible in evidence withoutproof by the sub-
•cribing witnesses ; provided the courts of
the foreign state receive similar evidence
from this state. Id. vol. 3, p. 285 ; vol. 5,
p. 45.
In Virginia, foreign deeds or powers
of attorney, &c., duly acknowledged, so
as to be admitted to record by the laws
of that state ; also, policies, charter
parties, and copies of record or of regis-
ters of marriages and births, attested by a
notary, to be made, entered, or kept
according to the law of the place, ai:e
admissible in evidence in the courts of
that state, without further proof. Eev.
Stat. 1849, eh. 121, § 3 ; Id. ch. 176, § 16.
A similar rule, in substance, is enacted in
Mississippi. Hutchinson's Dig. ch. 60,
art. 2. And see infra, § 573, note. [And
where the instrument which the plaintiff
offered as part of his case was a lease not
under seal, executed on the part of the
lessor by an attorney, in the presence of an
attesting witness, it was held, that the tes-
timony of the attorney was inadmissible to
prove the execution of the lease, without
first calling the attesting witness, or ac-
counting for his absence. "The person
whose signature appeared to it as attorney
of the supposed lessor could not affect the
rights of the defendants, who objected to
it, by way of admission or confession, for
he never represented, or was intrusted by,
the defendants for any purpose. His
handwriting was secondary evidence only,
and could not be proved, until the plaintiff
had proved that the testimony of the at-
testing witness could not be obtained.
The attorney, therefore, stood in the same
position as any otlier person, not a sub-
scribing witness, who might have hap-
pened to be present at the execution of
the instrument. The evidence was in-
competent, and rightly rejected." By
Shaw, C. J. Barry v. Eyan, 4 Gray, 523,
525. Where one witness testifies that the
other witness and himself were present
and saw the execution of a deed, it is not
necessary to call such other witness.
Melcher v. Flanders, 40 N. H. 139.]
' Per Le Blanc, J., in Call v. Dunning,
4 East, 54 ; Manners v. Postan, 4 Esp,
240, per Ld. Alvanley, C. J. ; 3 Preston
un Abstracts of Title, p. 73.
CHAP. VI.]
PRIVATE WRITINGS.
613
tion.^ The rule, though originally framed in regard to deeds, is now
extended to every species of writing, attested by a witness.^ Such
being the principle of the rule, its application has been held indis-
pensable, even where it was proved that the obligor had admitted
that 111! had executed the bond;^ and though tlie admission were
made in answer to a bill of discovery.*
§ 5G9g. a subscriKng witness is one who was present wlien the
instrument was executed, and who, at that time, at the request or
with the assent of the party, subscribed his name to it, as a wit-
ness of the execution. If his name is signed not by himself, but
by the party, it is no attestation. Neither is it such, if, though
present at the execution, he did not subscribe the instrument at
that time, but did it afterwards, and without request, or by the
fraudulent procurement of the other party. But it is not necessary
that he should have actually seen the party sign, or have been
present at the very moment of signing ; for if he is called in im-
mediately afterwards, and the party acknowledges his signature to
the witness, and requests him to attest it, this will be deeemed part
of the transaction, and therefore a sufficient attestation.^
1 Cussons V. Skinner, 11 M. & "W. 168,
per Ld. Abinger ; HoUenback v. Fleming,
6 Hill, N.Y. Kep. 803.
2 Doe V. Durnford, 2 M. & S. 62;
which was a notice to quit. So, of a war-
rant to distrain. Higgs v. Dixon, 2 Stark.
E. 180. A receipt. Heckert v. Haine, 6
Binn. 16 ; Wishart v. Downey, 15 S. &,
R. 77 ; Mahan v. McGrady, 5 S. & E.
314.
8 Abbott V. Plumbe, 1 Doug. 216, re-
ferred to by Lawrence, J., in 7 T. E. 267,
and again in 2 Kast, 187, and confirmed by
Lord Ellenborough, as an inexorable rule,
in Eex v. Harringworth, 4 M. & S. 353.
The admission of the party may be given
in evidence ; but the witness must also
be produced, if to be had. This rule was
broken in upon, in the case of the admitr
ted execution of a promissory note, in
Hall V. Phelps, 2 Johns. 451 ; but the rule
was afterwards recognized as binding in
the case of a deed, in Fox v. Reil, 3
Johns. 477, and confirmed in Henry v.
Bishop, 2 Wend. 575. [*The rule re-
quiring the production of the subscribing
witness, to prove the paper, is most in-
flexible. Story V. Lovett, 1 E. D. Smith,
153. And the fact that such witness is
the sole justice of the court will not dis-
pense with it. Jones v. Phelps, fi Mich.
218.1
* Call V. Dunning, 4 East, 43. But
see Bowles v. Langworthy, 5 T. E. 366.
So, in order to prove the admission of
a debt, by the medium of an entry in a
schedule filed by the defendant in the
Insolvent-Debtors' Court, it was held
necessary to prove his signature by the
attesting witness, although the document
had been acted upon by that court.
Streeter v. Bartlett, 5 M. G. & Sc. 562.
In Maryland, the rule in the text is abro-
gated by the statute of 1825, eh. 120.
[The English statute rendering parties to
suits competent Witnesses has not changed
the rule. Whyman v. Garth, 20 Eng.
Law & Eq. E. 359. And the same has
been held in Massachusetts. Brigham v.
Palmer, 3 Allen, 450.]
5 HoUenback v. Fleming, 6 Hill, N. Y.
Rep. 303; Cussons v. Skinner, 11 M. &
W. 168; Ledgard v. Thompson, Id. 41,
per Parke, B. Si [testes] in confectione
cliartce praisentes non fuerint, sufficit si post-
viodunij in prcEsentia donatoris et donatorii
fuerint recitate et concessa. Bracton, b. 2,
c. 16, § 12, fol. 38, a ; Fleta, 1. 3, c. 14,
§ 13, p. 200. And see Brackett v. Mount-
fort, 2 Fairf. 115. See further, on signa-
ture and attestation, post, vol. 2, tit. Wills,
§§ 674, 676, 678.
52
614
LAW OP EVIDENCE.
[PABT III.
§ 570. To this rule, requiring the production of the subscribing
vritnesses, tliere are several classes of exceptions. The first is, ■where
the instrument is thirty years old; in which case, as we have here-
tofore seen,i j^ jg g^^j^ iq prove itself, the subscribing witnesses
being presumed to be dead, and other proof being presumed to
be beyond the reach of the party. But such documents must be
free from just grounds of suspicion, and must come from the prop-
er custody,^ or have been acted upon, so as to afford some cor-
roborative proof of their genuineness.^ And, in this case, it is not
necessary to call the subscribing witnesses, though they be living.*
This exception is co-extensive with the rule, applying to ancient
writings of every description, provided they have been brought
from the proper custody and place ; for the finding them in such
a custody and place is a presumption that they were honestly and
fairly obtained, and preserved for use, and are free from suspicion
of dishonesty.^ But whether it extends to the seal of a private
corporation, has been doubted, for such a case does not seem
clearly to be within the principle of the exception.^
1 6upra, § 21, and cases there cited.
See also Doe v. Davis, 10 Ad. & El. 314,
N. s. ; Crane v. Marsliall, 4 Shepl. 27 ;
Green v. Chelsea, 24 Pick. 71. From the
dictum of Parker, C. J., in Emerson v.
Tolman, 4 Pick. 162, it has been inferred
that the subscribing witnesses must be
produced, if living, though the deed be
more than thirty years old. But the case
of Jackson v. Blanshan, 3 Johns. 292,
which is there referred to, contains no
such doctrine. The question in the latter
case, which was the case of a will, was,
whether the thirty years should be com-
puted from the date of the will, or from
the time of the testator's death, and the
court held that it should be computed
from the time of his death. But on this
point Spencer, J., differed from the rest of
the court ; and his opinion, which seems
more consistent vvith the principle of the
rule, is fully sustained by Doe v. Deakin,
3 C. &. P. 402; Doe v. Wolley, 8 B. & C.
22 ; McKenire v. Frazer, 9 Ves. 5 ; Gough
V. Gough, 4 T. R. 707, n. See Adams on
Eject, p. 260. And it was accordingly so
decided in Man «. Ricketts, 7 Beavan, 93.
2 Supra, § 142. And see Slater v.
Hodgson, 9 Ad. & El. 727, n. s. [An an-
cient book kept among the records of the
town and coming therefrom, purporting to
be tile selectmen's book of accounts, with
the treasury of tlie town, is admissible in
evidence of the facts therein stated. Bos-
tun u. VVevmoutii, 4 Gush. 638, 642. See
also Whitehouse v. Bickford, 9 Foster,
471 ; Adams v. Stanyan, 4 Foster, 405.]
^ See supra, §§ 21, 142, and cases there
cited; Doe d. Edgett v. Stiles, 1 Kerr's
Rep. (New Br.) 338. Mr. Evans thinks
that the antiquity of the deed is alone suf-
ficient to entitle it to be read ; and that
the other circumstances only go to its
effect in evidence ; 2 Poth. Obi. App. xvi.
sect. 5, p. 149. See also Doe v. Burdett,
4 Ad. & El. 1, 19 ; Brett v. Beales, 1 M. &
Malk. 416, 418 ; Jackson v. Larroway, 3
Johns. Cas. 288. In some cases, proof of
possession, under the deed or will, seems
to have been deemed indispensable ; but
the principle pervading them all is that of
corroboration merely; that is, that. some
evidence shall be offered, auxiliary to the
apparent antiquity of the instrument, to
raise a sufllcient presumption in its favor.
As to this point, see supra, § 144, note.
* Marsh t'. Colnett, 2 Esp. 665 ; Doe v.
Burdett, 4 Ad. & El. 1, 19 ; Doe v. Deakin,
3 C. & P. 402 ; Jackson v. Christman, 4
Wend. 277, 282, 283 ; Doe v. Wolley, 8
B. & C. 22 ; Fetherley v. Waggoner, 11
Wend. 603 ; supra, 142.
* 12 Vin. Abr. tit. Evidence, A. b. 5,
pi. 7, cited by Ld. Ellenborough, in Roe
V. Rawlins, 7 East, 291 ; Gov. &c. of Chel-
sea Waterworks v. Cowper, 1 Esp. 11. 275 ;
Forbes v. Wale, 1 W. Bl. 532; Winne t»,
Tyrwhitt, 4 B. & Aid. 376.
8 Rex V. Bathwick, 2 B. & Ad. 639,
648.
CHAP. VI.] PRIVATE WEITINGS. 615
§ 571. A second exception to this rule is allowed, "where the
instrument is produced ly the adverse party, pursuant to notice,
the party producing it claiming an interest under the instrument.
In this case, the party producing the instrument is not permitted
to call on the other for proof of its execution ; for, by claiming an
interest under the instrument, he has admitted its execution.^
Tlie same principle is applied where both parties claim similar
interests, under the same deed ; in which case, the fact of such
claim may be shown by parol.^ So, where both parties claim under
the same ancestor, his title-deed, being equally presumable to be
in the possession of either, may be proved by a copy from the reg-
istry .^ But it seems that the interest claimed in these cases must
be of an abiding nature. Therefore, where the defendant would
show that he was a partner with the plaintiff, and, in proof thereof,
called on the plaintiff to produce a written personal contract, made
between them both, as partners of the one part, and a third person
of the other part, for labor which had been performed, which was
produced accordingly, the defendant was still held bound to prove its
execution.* The interest, also, which is claimed under the instru-
ment produced on notice, must, in order to dispense with this rule,
be an interest claimed in the same cause. Therefore, where in an
action by an agent against his principal, for his commission due
1 Pearce w. Hooper, 3 Taunt. 60 ; Carr this ground, admissible, it has been held
V. Burdiss, 1 C. M. & K. 784, 785 ; Orr v. that the original might be read in evi-
Morice, 3 Br. & Bing. 139 ; Bradshaw v. dence, without proof of its formal execu-
Bennett, 1 M. & Rob. 143. In assumpsit tion. Knox v. Silloway, 1 Pairf. 201.
by a servant against his master, for breach This practice, however, has been restrict-
of a written contract of service, the agree- ed to instruments which are by law re-
ment being produced under notice, proof quired to be registered, and to transmis-
of it by the attesting witness was held un- sions of title inter vivos; for if the party
necessary. Bell v. Chaytor, 1 Car. & claims by descent from a grantee, it has
. Kirw. 162 ; 5 C. & P. 48. been held that he must produce the deed
2 Doe V. Wilkins, 4 Ad. & EI. 86 ; 5 to his ancestor, in the same manner as the
Nev. & M. 434, s. c. ; Knight v. Martin, 1 ancestor himself would be obliged to do.
Gow, R. 26. Kelsey v. Hanmer, 18 Conn. R. 311.
^ Burghardt v. Turner, 12 Pick. 534. Where proof of title had been made by a
It being the general practice, in the United copy from tlie registry of an officer's levy
States, for the grantor to retain his own of an execution, and the adverse party
title-deeds, instead of delivering them over thereupon produced the original return, in
to the grantee, the grantee is not held which were material alterations, it was
bound to produce them ; but the person held that this did not affect the admissi-
making title to lands is, in general, per- bility of the copy in evidence, and that the
mittcd to read certified copies, from the burden of explaining and accounting for
registry, of all deeds and instruments un- the alterations in the orighial did not rest
der whi';h he claims, and to which he is on the party producing the copy. Wilbur
not himself a party, and of which he is not u. Wilbur, 13 Met. 405; [ante, § 561, and
supposed to have the control. Scanlan v. notes.]
Wright, 13 Pick. 523 ; Woodman v. Cool- * Collins v. Bayntum, 1 Ad. {s El. s. s
broth, 7 Greenl. 181 ; Loomis v. Bedel, 11 117.
N. Hamp. 74. And where a ciy is, on
616 ' LAW OP EVIDBNCE. [PABT III.
for procuring him an apprentice, the indenture of apprenticeship
was produced by the defendant on notice ; it was held that the
plaintiff was still bound to prove its execution by the subscribing
witness ; and that, having been nonsuited for want of this e-?i-
dence, he was not entitled to a new trial on the ground of surprise,
tliough he was not previously aware that there was a subscribing
witness, it not appearing that he had made any inquiry on the sub-
ject.i So, where the instrument was taken by the party producing
it, in the course of his official duty, as, for example, a bail bond,
taken by the sheriff, and produced by him on notice, its due exe-
cution will primd facie be presumed.^ Subject to these exceptions,
the general rule is, that where the party producing an instrument
on notice is not a party to it and claims no beneficial interest
under it, the party calling for its production, and offering it in
evidence, must prove its execution.^
§ 572. A third class of exceptions to this rule arises from the
circumstances of the witnesses themselves, the party, either from
physical or legal obstacles, being unable to adduce them. Thus,
if the witness is proved or presumed to be dead ; * or cannot be
found after diligent inquiry ; ^ or, is resident beyond the sea ; ^ or,
is out of the jurisdiction of the court ; '' or, is a fictitious person,
whose name has been placed upon the deed by the party who
made it ; ^ or, if the instrument is lost, and the name of the suh-
1 Kearden v. Minter, 5 M. & Gr. 204. Griffith, 6 Moore, 538 ; Austin v. Kumsey
2 Scott V. Waithman, 3 Stark. K. 2 C. & K. 736.
168. 6 Anon. 12 Mod. 607 ; Barnes v. Trom
3 Betts V. Badger, 12 Johns. 223; Jack- powsky, 7 T. R. 266.
son 0. Kingsley, 17 Johns. 158. ' Holmes v. Pontin, Peake's Gas. 99 ;
* Anon. 12 Mod. 607 ; Barnes v. Trom- Banks v. Farquharson, 1 Dick. 107 ; Coo-
. powsky, 7 T. R. 265; Adams v. Kerr, 1 per v. Marsden, 1 Esp. 1 ; Prince v. Black-
B. & P. 360 ; Banks v. Farquharson, 1 burn, 2 East, 250 ; Sluby v. Cliamplin, 4
Dick. 167 ; Mott v. Doughty, 1 Jolms. Johns. 461 ; Dudley v. Sumner, 5 Mass.
Gas, 230; Dudley w. Sumner, 5 Mass. 463. 444; Homer v. Wallis, 11 Mass. 309;
That the witness is sick, even though de- Cook v. Woodrow, 5 Grancli, 13 ; Baker %'.
spaired of, is not sufficient. Harrison v. Blunt, 2 Hayw. 404 ; Hodnett v. Forman
Blades, 3 Gampb. 457. See supra, § 272, 1 Stark. R. 90; Glubb v. Edwards, 2 m!
n., as to the mode of proving the attesta- & Rob. 300; Engles v. Bruington, 4
tion of a marksman. Yeates, 345; Wiley v. Bean, 1 Gilm'an,
s Coghlan v. Williamson, 1 Doug. 93 ; 302 ; Dunbar v. Marden, 13 N. Hamp. 311.
C!unliffe v. Sefton, 2 East, 183 ; Call v. If the witness has set out to leave the ju-
Dunning, 5 Esp. 16; 4 East, 53; Crosby risdiction by sea, but the ship has been
V. Piercy, I Taunt. 364 ; Jones v. Brink- beaten back, he is still considered absent,
ley, 1 llayw. 20; Anon. 12 Mod. 607; Ward v. Wells, 1 Taunt. 461. See also
Warden v. Fermor, 2 Gampb. 282; Jack- Emery v. Twombly, 5 Sliepl. 65; [Teall
soni). Burton, llJohns. 64,' Mills J). Twist, v. Van Wyck, 10 Barb. S76 ; Foote v.
8 Jolms. 121 ; Parker o. Haskins, 2 Taunt. Gobb, 18 Ala. 585 ; Cox v. Davis 17 I
223 ; Whittemore v. Brooks, 1 Greenl. 57 ; 714.]
Burt V. Walker, 4 B & Aid. 697; Pytt ■-• » Fassett v. Brown, Peake's Ca,s 23-
CHAP. VI.]
PBITATE WRITINGS.
617
scribing witness is unknown ; ^ or, if the witness is insane ; ^ or,
has subsequently become infamous ; ^ or, has become the adverse
party ; * or, lias been made executor or administrator to one of the
parties, or has otherwise, and without the agency of the party,
subsequently become interested, or otherwise incapacitated ; » or,
was incapacitated at the time of signing, but the fact was not
known to the party ; ^ in all these cases, the execution of the in-
strument may be proved by other evidence. If the adverse party,
pending the cause, solemnly agrees to admit the execution, other
proof is not necessary.'' And if the witness, being called, denies,
or does not recollect having seen it executed, it may be established
by other evidence.^ If the witness has become blind, it has been
held that this did not excuse the party from calling him ; for he
may be able still to testify to other parts of the res gestm at the
time of signing.^ If the witness was infamous at the time of
I Keeling v. Ball, Peake's Ev. App. 78.
^ Currie v. Child, 3 Cainpb. 283. See
also 3 T. R. 712, per Buller, J. .
3 Jones V. Mason, 2 Stra. 833. If the
conviction were previous to the attestation,
it is as if not attested at aU. 1 Stark.
Evid. 325.
* Strange v. Dashwood, 1 Cooper's Ch.
Cas. 497.
6 Goss V. Tracy, 1 P. Wms. 289 ; God-
frey V, Norris, 1 Stra. 34; Davison v.
Bloomer, 1 Dall. 123 ; Bulkley v. Smith,
2 Esp. 697; Cunliffe v. Sefton, 2 East,
183 ; Burrett v. Taylor, 9 Ves. 381 ; Ham-
ilton V. Marsden, 6 Binn. 45 ; Hamilton v.
WiUiams, 1 Hay w. 139 ; Hovill v. Stephen-
son, 5 Bing. 439, per Best, C. J. ; Saun-
ders V. rerrill, 1 Iredell, 97. And see, as
to the manner of acquiring the interest,
supra, § 418.
" Nelius V. Brickell, 1 Hayw. 19. In
this case, the witness was the wife of the
obligor. And see Amherst Bank v. Root,
2 Met. 522, that if the subscribing witness
was interested at the time of attestation,
and is dead at the time of trial, his hand-
writing may not be proved. For such
evidence would be merely secondary, and
therefore admissible only in cases where
the primary evidence could have been ad-
mitted. [If a subscribing witness (o an
instrument merely makes his mark, in-
stead of writing his name, the instrument
is to be proved by evidence of the hand-
writing of the party executing it. Watts
V. Ifilbm-n, 7 Geo. 356.]
' Lang V. Raine, 2 B. & P. 85.
8 Abbott V. Plumbe, 1 Doug. 216 ;
Lesher v. Levan, 1 Dall. 96 ; Ley v. Bal-
lard, 3 Esp. 173, n. ; Powell v. Blackett,
1 Esp. 97; Park v. Mears, 3 Esp. 171;
Fitzgerald v. Elsee, 2 Campb. 635 ; Blur-
ton V. Toon, Skin. 639 ; McOraw v. Gen-
try, 3 Campb. 132; Grellier v. Neale,
Peake's Cas. 145 ; Whitaker v. Salisbury,
15 Pick. 534 ; Quimby v. Buzzell, 4 Shepl."
470 ; supra, § 272. Where one of the at-
testing witnesses to a will has no recollec-
tion of having subscribed it, but testifies
that the signature of his name thereto is
genuine ; the testimony of another attest-
ing witness, that the first did subscribe
his name in the testator's presence, is suf-
ficient evidence of that tact. Dewey v.
Dewey, 1 Met. 349. See also Quimby v.
Buzzell, 4 Shepl. 470; New Haven Co.
Bank v. Mitcliell, 15 Conn. R. 206. If the
witness to a deed recollects seeing the sig-
nature only, but the attesting clause is in
the usual formula, the jury will be advised,
in the absence of controlling circumstan-
ces to find the sealing and delivery also.
Burling v. Paterson, 9 C. & P. 570. Seo
supra, § 38a.
9 Cronk v. Frith, 9 C. & P. 197 ; 2 M.
& Rob. 262, s. c, per Ld. Abinger, C. B. ;
Rces V. Williams, 1 De Gex & Bmale, 314.
In a former case of Pedlcr v. Paige, 1 M.
& Rob. 258, Parke, J., expressed himself
of the same opinion, but felt bound by the
opposite ruling of Ld. Ilolt, in Wood ».
Drury, 1 Ld. Raym. 734.
52*
618 LAW OF EVIDENCE. [PABT IH.
attestation, or was interested, and continues so, the ^»arty not then
knowing the fact, the attestation is treated as a nullity.^
§ 573. A fourth exception has been sometimes admitted, iu
regard to office bonds, required by law to be taken in the name of
some public functionary, in trust for the benefit of all persons
concerned, and to be preserved in the public registry for their
protection and use ; of the due execution of which, as well as of
their sufficiency, such officer mtist first be satisfied and the bond
approved, before the party is qualified to enter upon the duties
of his office. Such, for example, are the bonds given for their
official fidelity and good conduct, by guardians, executors, and
administrators, to the judge of probate. Such documents, it is
said, have a high character of authenticity, and need not be verified
by the ordinary tests of truth, applied to merely private instru-
ments, namely, the testimony of the subscribing witnesses ; but
when they are taken from the proper public repository, it is only
necessary to prove the identity of the obligor with the party in
the action.^ Whether this exception, recently asserted, will be
generally admitted, remains to be seen.'
§ 573a. A further exception to the rule requiring proof of hand
1 Swire v. Bell, 5 T. R. 371; Honey- of some statute, or immemorial usage, ren
wood D. Peacouk, 3 Campb. 196 ; Amherst dering it so ; but the grantor, or party to
Bank v. Root, 2 Met. 522. be aifected by the instrument, may still
2 Kello V. Maget, 1 Dev. & Bat. 414. controvert its genuineness and validity.
The case of deeds enrolled would require a But where the deed falls under one of the
distinct consideration in this place, were exceptions, and has been proved pa- testes,
not the practice so various in the different there seems to be good reason for receiv-
states, as to reduce the subject to a mere ing this probate, duly authenticated, as
question of local law, not falling within sufficient primA facie proof of the execu-
the plan of this work. In general, it may tion, and such is understood to be the
be remarked, that in all the United States, course of practice, as settled by the stat-
provision is made for the registration and utes of many of the United States. See
enrolment of deeds of conveyance of 4 Cruise's l3ig. tit. 32, ch. 29, § 1, note,
lands; and that prior to such registration, and ch. 2, §§ 77, 80, notes (Greenleaf's
the deed must be acknowledged by the ed.); 2 Lomax's Dig. 353; Doe «. Jolm-
grantor, before the designated magistrate ; son, 2 Scam. 522 ; Morris v. Wadsworth,
and, in case of the death or refusal of the 17 Wend. 103 ; Thurman v. Cameron, 24
grantor, and in some other enumerated Wend. 87. The EngUsli doctrine is found
cases, the deed must be proved by wit- in 2 Phil. Evid. 243-247 ; 1 Stark. Evid.
nesses, either before a magistrate, or in a 355-358. And see Mr. Metcalf's note to 1
court of record. But generally speaking, Stark. Evid. 357 ; Brotherton v. Living-
such acknowledgment is merely designed ston, 3 Watts & Serg. 334 ; Vance v.
to entitle the deed to registration, and Schuyler, 1 Gilni. 111. R. 100. Where a
registration is, in most states, not essen- deed executed by an officer acting undei
tial to passing the estate, but is only in- authority of law is offered in evidence,
tended to give notoriety to the convey- not in proof of title, but in proof of a coUat-
ance, as a substitute for livery of seisin, eral fact, the authority of the officer needs
And such acknowledg-inent is not gener- not to be shown. Bolles v. Beach, 3 Am.
ally received, as prima facie evidence of Law Journ. 122, n. s. See Rev. St. Wis-
the execution of the deed, unless by force consin, p. 525; Rev. St. Illinois, p. 108.
CHAP, VI.] PEITATB WEITINGS. 619
writing, has been admitted, in the case of letters received in reply
to others proved to have been sent to the party. Thus where the
plaintiff's attorney wrote a letter addressed to the defendant at his
residence, and sent it by the post, to which he received a reply
purporting to be from the defendant ; it was held, that the letter
thus received was admissible in evidence, without proof of the
defendant's handwriting, and that letters of an earlier date in the
same handwriting, might also be read, without other proof. ^
§ 5736. A fifth exception to the rule requiring proof by the
subscribing witness, is admitted, where the instrument is not
directly in issue, but comes incidentally in question in the course
of the trial ; in which case, its execution may be proved by any
competent testimony, without calling the subscribing witness.^
§ 574. The degree of diligence in the search for the subscribing
. witnesses is the same which is required in the search for a lost
paper, the principle being the same in both cases.^ It must be
a strict, diligent, and honest inquiry and search, satisfactory to the
court, under the circumstances of the case. It should be made at
the residence of the witness, if known, and at all other places
where he may be expected to be found ; and inquiry should be
made of his relatives, and others who may be supposed to be able
to afford information. And the answers given to such inquiries
may be given in evidence, they being not hearsay, but parts of the
res gestce.^ If there is more than one attesting witness, the absence
of them all must be satisfactorily accounted for, in order to let in
the secondary evidence.^
§ 575. Wiien secondary evidence of the execution of the instru-
ment is thus rendered admissible, it will not be necessai'y to prove
the handwriting of more than one witness.*' And this evidence is,
in general, deemed sufficient to admit the instrument to be rcad,^
1 Ovenston v. Wilson, 2 Car. & Kir. 1. ^ Cunliffe v. Sefton, 2 East, 183 ; Kel-
2 Curtis V. Belknap, 6 "Waslib. 433. sey v. Haiimer, 18 Conn. K. 311 ; Poe v.
[On the trial of an indictment for obtain- Hathaway, 2 Allen, 69.
ing the signature to a deed by false pre- " Adams v. Kerr, 1 B. & P. 360 ; 3
fences, the deed may be proved by the Preston on Abstracts of Title, pp. 72, 73.
testimony of the grantor, without calling ^ Kay v. Brookman, 3 C. & P. 555 ;
the attesting witness. Commonwealth v. Webb v. St. Lawrence, 3 Bro. P. C. 640;
Castles, 20 Law Rep (10 n. s.) 411.] Mott v. Doughty, 1 Johns. Cas. 230 ; Sluby
' Supra, § 558. v. Champlin, 4 Johns. 461 ; Adams v.
^ The cases on this subject are nu- Kerr, 1 B. & P. 360; Cunliffe v. Sefton,
merous ; but as the application of the 2 East, 183; Prince w. Blackburn, 2 East,
rule is a matter in the discretion of the 250 ; Douglas -v. Sanderson, 2 Dall. 116 ;
judge, under tlie particular circumstances Cooko v. Woodrow, 5 Cranch, 13 ; Ilamil-
of each case, it is thought unnecessary to ton v. Marsden, 6 Binn. 45 ; I'owers v,
encumber the work with a particular refer- McFerran, 2 S. & R. 44; McKinder v
ence to them. Littlejohn, 1 Iiedell, 66. Some courts
620
LAW OP EVIDENCE.
[past m.
being accompanied with proof of the identity of the party sued with
tlie person who appears to liave executed the instrument ; which
proof, it seems, is now deemed requisite,^ especially where the deed
have also required proof of the handwrit-
ing of the obligor, in addition to that of
the suhscribiug witness ; but on this point
the practice is not uniform. Clark v.
Courtnev, 5 Peters, 319 ; Hopkins v. De
Graffenr'eid, 2 Bay, 187 ; Oliphant v. Tag-
gart, 1 Bay, 255; Irving v. Irving, 2
Hayw. 27 ; Clark v. Saunderson, 3 Binn.
192; Jackson v. La Grange, 19 Johns.
386 ; Jackson v. Waldron, 13 Weud. 178,
188, 197, 198, semhle. See also Gough v.
Cecil, 1 Selw. N.P. 538, n. (7), (10th edit.)
See supra, § 84, n. ; Thomas v. Turnley, 2
Rob. Louis. R. 206 ; Dunbar v. Harden, 13
N. Hamp. 311.
1 Whiteloeke v. Musgrove, 1 C. & M.
511. But it seems that slight evidence
of identity will suffice. See Nelson v.
Whittall, 1 B. & Aid. 19; Warren v.
Anderson, 8 Scott, 384. See also 1
Selw. N. P. 538, n. (7), (18th edit.) ; Phil,
& Am. on Evid. 661, n. (4). This subject
has recently been reviewed, in the cases
of Sewell V. livans, and Roden v. Ryde, 4
Ad. & EI. N. s. 626. In the former case,
which was an action for goods sold, against
William Seal Evans, it was proved that
the goods had been sold to a person of
that name, who had been a customer, and
had written a letter acknowledging the re-
ceipt of the goods; but there was no otlier
proof that this person was the defendant.
In the latter case, which was against Henri/
Thomu-s lii/de, as the acceptor of a bill of
exchange, it appeared that a person of that
name had kept cash at the bank where the
bill was payable, and had drawn cheeks,
which the cashier had paid. The cashier
knew the person's handwriting by tlie
checks, and testified that the acceptance
was in the same writing ; but lie had not
paid any cheek for some time, and did
not personally know him ; and there was
no other proof of his identity with the de-
fendant. The court, in both these cases,
held that the evidence of identity was
priiniJ./iia'e sufficient. In the latter case,
the learned judges gave their reasons as
follows : Lord Denman, C. J., " The
doubt raised here lias arisen out of the
case of Whiteloeke v. Musgrove (1 C. &
M. 511; s. c. 8 Tyrwh. 541); but there
the circumstances were ditterent. The
party to be fixed with liability was a
marksman, and tlie liicts of the case made
some ex]ilanation necessary. But where a
person, in the course of the ordinary tran-
sactions of life, has signed his name to
Buoh an instrument as tills, I do not tliink
there is an instance in which evidence of
identity has been required, except Jones v.
Jones (9 M. & W. 75). There the name
was proved to be very common in the
country ; and I do not say that evidence
of this kind may not be rendered neces-
sary by particular circumstances, as, for
instance, length of time since the name
was signed. But in cases where no par-
ticular circumstance tends to raise a ques-
tion as to the party being the same, even
identity of name is something from which
an inference may be drawn. If the name
wei'e only John Smith, which is of very fre-
quent occurrence, there might not be much
ground for drawing the conclusion. But
Henri/ Thomas Rydes are not so numerous;
and from that, and the circumstances gen-
erally, there is every reason to believe
that the acceptor and the defendant are
identical. The dictum of Boliand, B. (3
Tyrwh. 558), has been already answered.
Lord Lyndhurst, C. B., asks (3 Tyrwh.
543), why the onus of proving a negative
in these cases should be thrown upon the
defendant ; t!ie answer is, because the
proof is so easj'. He might come into
court and have the witness asked whether
he was the man. The supposition that
the right man has been sued is reasonable,
on account of the danger a party would
incur, if he served process on the wrong ;
for, if he did so wilfully, the court would
no doubt exercise their jurisdiction of
punishing for a contempt. But the fraud
is one which, in the majority of cases, it
would not occur to any one to commit.
The practice, as to proof, which has con-
stantly prevailed in cases of this kind,
shows how unlikely it is that such frauds
should occur. The doubt now suggested
has never been raised before the late cases
which have been referred to. The obser-
vations of Lord Abinger and Alderson, B.,
ill Greensliields v. Crawford (9 M. & W.
314), apply to this case. The transactions
of the world could not go on, if such an
objection were to prevail. It is unfor-
tunate that the doubt should ever have
been raised ; and it is best that we should
sweep it away as soon as we can." — Pat-
teson, J. : "I concur in all that has been
said by my Lord. And the rule always
laid down in books of evidence agrees
with our present decision. The execution
of a deed has always been proved, by mere
evidence of the subscribing witness's hand-
writing, if he was dead. The party execut-
ing an instrument may have changed lii»
CHAP. TI.]
PRIVATE WRITINGS.
621
on its face excites suspicion of fraud.^ The instrument may also
in such cases be read, upon proof of the handwriting of the obligor,
or party by whom it was executed ; ^ but in this case also it is con-
ceived, that the like proof of the identity of the party should be
required. If there be no subscribing witness, the instrument is
sufficiently proved by any competent evidence that the signature
is genuine.^
§ 576. In considering the proof of private writings, we are
naturally led to consider the subject of the comparison of hands,
upon which great diversities of opinion have been entertained.
This expression seems formerly to have been applied to every case,
where the genuineness of one writing was proposed to be tested
before the jury, by comparing it with another, even though the
latter were an acknowledged autograph ; and it was held inad-
missible, because the jury were supposed to be too illiterate to
judge of this sort of evidence ; a reason long since exploded.*
residence. Must a plaintiff show where
he lived at the time of the execution, and
then trace him through every change of
habitation, until lie is served with the
writ? No such necessity can be im-
posed." — Williams, J. : "I am of the
same opinion. It cannot be said here
there was not some evidence of identity.
A man of the defendant's name had kept
money at the branch bank ; and this ac-
ceptance is proved to be his writing. Then,
is that mar. the defendant? That it is a
person of the same name is some evi-
dence, until another party is pointed out
who might have been the acceptor. In
Jones V. Jones (9 M. & W. 75), the same
proof was relied upon; and Lord Abin-
ger said : ' The argument for the plain-
tiff might be correct, if the case had not
introduced the existence of many Hugh
Joneses in the neighborhood where the
note was made.' It appeared that the
name Hugh Jones, in the particular part
of Wales, was so common as hardly to be
a name ; so that a doubt was raised on the
evidence by cross-examination. That is
not so here ; and therefore the conclusion
must be different."
1 Brown v. Kimball, 25 Wend. 469.
2 In Jackson v. Waldron, 11 Wend.
178, 18-3, 196, 197, proof of the handwrit-
ing of the obligor was held not regularly
to be offered, unless the party was unable
to prove the handwriting of the witness.
But in Valentine v. Piper, 22 Pick. 90,
proof of the handwriting of the party was
esteemed more satsfactory than that of
the witnesses. The order of the proofs.
however, is a matter resting entirely iu
the discretion of the court.
3 PuUen V. Hutchinson, 12 Shepl. 249.
* The admission of evidence by com-
parison of hands, in Col. Sidney's case,
8 Howell's St. Tr. 467, was one of the
grounds of reversing his attainder. Yet,
though it clearly appears that his hand-
writing was proved by two witnesses, who
had seen him write, and by a third who had
paid bills purporting to have been indorsed
by liim, this was held illegal evidence in a
criminal case. [*In Jumpertz v. The Peo-
ple, 21 111. 375, the EngUsh rule is adhered
to. In some of the states, the witnesses
are allowed to testify from comparison of
handwriting with that admitted to be
genuine. Power v. Erick, 2 Grant's Cases,
306. That is not generally allowed to
ordinary witnesses, the jury being sup-
posed as competent to make the compari-
son as such witnesses. Chandler v. Le
Barron, 45 Maine, 534 ; Adams v. Field,
21 Vt. R. 256. But experts are allowed
to testify whether the signature in dispute
is by the same hand as another admitted
to be genuine. And while comparison
of handwriting by the jury is restricted
iu the EngUsh practice to writings put in
the case for other purposes, it is allowed
in the American states to put in genuine
signatures, written before the controversj
arose, for the mere purpose of enabling
the jury to judge by comparison. Adams
V. Field, supra, by Bennett, J. But those
having much experience in the .trial of
questions depending upon the genuinenesi
of handwriting will not require to be re-
622
LAW OP EVIDENCE.
[PAET m.
All evidence of handwriting, except where the witness saw the
document written, is, in its nature, comparison. It is the belief
which a witness entertains, upon comparing the writing in question
with its exemplar in his mind, derived from some previous knowl-
edge.^ The admissibility of some evidence of this kind is now too
well established to be shaken. It is agreed that, if the witness has
the proper knowledge of the party's handwriting, he may declare
his belief in regard to the genuineness of the writing in question.
He may also be interrogated as to the circumstances on which he
founds his belief.^ The point upon which learned judges have
differed in opinion is, upon the source from which this knowledge
is derived, rather than as to the degree or extent of it.
§ 577. There are two modes of acquiring this knowledge of the
handwriting of another, either of which is universally admitted to
be sufficient, to enable a witness to testify to its genuineness.
The first is from having seen him write. It is held sufficient for
this purpose, that the witness has seen him write but once, and
then only his name. The proof in such case may be very light ;
but the jury will be permitted to weigh it.^ The second mode is,
minded that there is nothing in the whole
range of the law. of evidence, more unreli-
ablt!, cr where courts and juries are more
liable to he imposed upon.]
1 Doe V. Suckermore, 5 Ad. & El. 730,
per Patteson, J. See, also, the remarks
of Mr. Evans, 2 Poth. Obi. App. xvi. § 6,
ad. calc. p. 162.
2 Regina v. Murphy, 8 C. & P. 297 ;
Commonwealth v. Webster, 5 Cusli. 295 ;
[Keith V. Lathrop, 10 lb. 453.]
* Garrells v. Alexander, 4 Esp. 37. In
Powell V. Eord, 2 Stark. K. 164, the witness
had never seen the defendant write his
christian name ; but only " M. Ford," and
then but once ; whereas the acceptance of
the bill in question was written with both
the christian and surname at full length ;
and Lord EUenborough thought it not
sufficient, as the witness had no perfect
examplar of the signature in his mind.
But in Lewis v. Sapio, 1 M. & Malk. 39,
where the signature was " L. B. Sapio,"
and the witness had seen him write seve-
ral times, but always " Mr. Sapio," Lord
Tcnterden held it sufficient. A witness
has also been permitted to speak as to the
genuineness of a person's mark, from hav-
ing seen it affixed by him on several oc-
casions. George v. Surrey, 1 M. & Malk.
516. But where the knowledge of the
liandwriting has been obtained by the
witness from seeing the party write his
name, for that purpose, after the commence-
ment of the suit, the evidence is held in-
admissible. Stranger v. Searle, 1 Esp. 14.
See also Page v. Homans, 2 Shepl. 478-
In Slaymaker v. Wilson, 1 Penn. R. 216,
the deposition of a witness, who swore
positively to her father's hand, was re-
jected, because she did not say how she
knew it to be his hand. But in Moody v.
Rowell, 17 Pick. 490, such evidence was
very properly held sufficient on the ground,
that it was for the other party to explore
the sources of the deponent's knowledge,
if he was not satisfied tliat it was suffi-
cient. [Bowman v. Sanborn, 5 Foster, 87 ;
Hopkins v. Megquire, 35 Maine, 78 ; West
V. State, 2 N. Jersey, 212. Before being
admitted to testify as to the genuineness of
a controverted signature from his knowl-
edge of the handwriting of the party, a
witness ought, beyond all question, to have
seen the party write, or be conversant with
his acknowledged signature. The teller
of a bank, who as such has paid many
checks purporting to be drawn by a per-
son who has a deposit account with the
bank, but has not seen him write, if the
testimony shows notliing further, is a com-
petent witness to testify as to the hand-
writing of such person ; but he is not a
competent witness to testify to the hand-
CHAP. VI.] PRIVATE WEITINGS, 623
from having seen letters, bills, or other documents, purporting to
be the handwriting of the party, and having afterwards personally
communicated with him respecting them; or acted upon them as
his, the party having known and acquiesced in such acts, founded
upon their supposed genuineness ; or, by such adoption of them
into the ordinary business transactions of life, as induces a reason-
able presumption of their being his own writings; evidence of
the identity of the party being of course added aliunde, if the
witness be not personally acquainted with him.^ In both these
cases, the witness acquires his knowledge by his own observation
of facts, occurring under his own eye, and which is especially to
be remarked, without having regard to any particular person, case,
or document.
§ 578. This rule, requiring personal knowledge on the part of
the witness, has been relaxed in two cases. (1.) Where writings
are of such antiquity, that living witnesses cannot be had, and yet
are not so old as to prove themselves.^ Here the course is, to
produce other documents, either admitted to be genuine, or proved
to have been respected and treated and acted upon as such, by
all parties ; and to call experts to compare them, and to testify
their opinion concerning the genuineness of the instrument in
question.^ (2.) Where other writings, admitted to be genuine, are
already in the case. Here the comparison may be made by the
jury, with or without the aid of experts. The reason assigned
for this is, that as the jury are entitled to look at such writings
for one purpose, it is better to permit them, under the advice and
direction of the court, to examine them for all purposes, than to
writing of such person, if it appears that Commonwealth v. Carey, 2 Pick. 47 ; John-
some of the checks so paid were forged, son v. Darerne, 19 Johns. 134 ; Burr v.
and that the witnessed paid alike the Harper, Holt's Cas. 420 ; Pope v. Askew,
forged and genuine checks. Brigham v. 1 Iredell, E. 16. If a letter has been sent
Peters, I Gray, 139, 145, 146. A witness to the adverse party, by post, and an an-
who has done business with the maker of swer received, the answer may be read in
the note, and seen him write, but only since evidence.withoutproof of the handwriting.
the date of the disputed note, may never- Ovenston v. Wilson, 2 C. & K. 1 ; supra,
theless give his opinion in regard to the § 673a. [See also IQnney v. Flynn, 2
genuineness of the note, the objection R.I. 319 ; McKonkey v. Gaylord, 1 Jones,
going to the weight and not to the compe- Law, n. c. 94.]
tency of the evidence. Keith v. Latlirop, ^ Supra, § 570. ^
10 Gush. 453.] 8 See 20 Law Mag. 323 ; Brune v. Eaw-
1 Doe V. Suckermore, 5 Ad. & El. 731, lings, 7 East, 282 ; Morewood v. Wood,
per Pitteson, J. ; Lord Ferrers v. Shir- 14 East, 328 ; Gould v. Jones, 1 W. Bl.
ley, Eitzg. 195; Carey v. Pitt, Peake's 384; Doe u. Tarver, Ey. &M. 143; Jack-
Evid. App. 81 ; Thorpe v. Gisburne, 2 C. son v. Brooks, 8 Wend. 426.
& P. 21 ; Harrington v. Fry, Ey. & M. 90 ;
624 LAW OF EVIDENCE. [PART HI
embarrass them with impracticable distinctions, to the peril ot
the cause. ^
§ 579. A third mode of acquiring knowledge of the party's hand-
writing was proposed to be introduced in the case of Doe v. Such
ermore ; ^ upon which, the learned judges being equally divided in
opinion, no judgment was given ; namely, by first satisfying the
witness, by some information or evidence not falling under either
of the two preceding heads, that certain papers were genuine,
and then desiring the witness to study them, so as to acquire
a knowledge of the party's handwriting, and fix an exemplar in
his mind; and then asking him his opinion in regard to the
disputed paper ; or else, by offering such papers to the jury, with
proof of their geniiineness, and then asking the witness to testify
his opinion, whether those and the disputed paper were written
by the same person. This method supposes the writing to be
generally that of a stranger ; for if it is that of the party to the
suit, and is denied by him, the witness may well derive his knowl-
edge from papers, admitted by that party to be genuine, if such
papers were not selected nor fabricated for the occasion, as has
already been stated in the preceding section. It is obvious, that
'if the witness does not speak from his own knowledge, derived in
the first or second modes before mentioned, but has derived it
from papers shown to him for that purpose, the production of
these papers may be called for, and their genuineness contested.
So that the third mode of information proposed resolves itself
into this question, namely, whether documents, irrelevant to the
issues on the record, may be received in evidence at the trial, to
enable the jury to institute a comparison of hands, or to enable
a witness so to do.^
^ See 20 Law Mag. 319, 323, 824 ; Grif- these being in evidence for any other pur-
fith u. Williams, 1 C. & J. 47 ; Solita v. pose of the cause), and he stated that he
Yarrow, 1 M. & Rob. 133 ; Kex v. Mor- believed them to be his. On the foUow-
gan. Id. 134, n. ; Doe v. Newton, 5 Ad. & ing day, the plaintiff tendered a witness,
El. 514 ; Bromage v. Rice, 7 C. & P. 548 ; to prove the attestation not to be genuine.
Hammond's case, 2 Greenl. 38 ; Wadding- The witness was an inspector at the Banlc
ton V. Cousins, 7 C. & P. 595 ; [* Van Wyclc of England, and liad no knowledge of the
«. Mcintosh, 4 Kernan, 439.] handwriting of the supposed attesting
2 5 Ad. & El. 708. In tliis case, a de- witness, except from liaving, previously
I fendant in ejectment produced a will, and, to the trial and again between tlie two
on one day of tlie trial (which lasted sev- days, examined the signatures admitted
eral days), called an attesting witness, who by the attesting witness, wliicli ^admission
swore that the attestation was his. On lie had heard in court. Per Lord Den-
his cross-examination, two signatures to man, C. J., and WiUiams, J., such evi-
depositions, respecting the same will, in dence was receivable ; per Patteson and
an ecclesiastical court, and several other Coleridge, Js., it was not.
signatures, were shown to him (none of ^ See 5 Ad. & El. 734, per Patteson, J
CHAP. VI.]
PEIVATB WEITINIGS.
325
§ 580. In regard to admitting such evidence, upon an examina-
tion in diicf, for the mere purpose of enabling tlie jury to judge
of the handwriting, the modern Englisli decisions are clearly
opposed to it.^ For this, two reasons have been assigned : namely,
first, the danger of fraud in the selection of the writings, offered as
specimens for the occasion ; and, secondly, that, if admitted, the
genuineness of these specimens may be contested, and others
successively introdviced, to the infinite multiplication of collateral
issues, and the subversion of justice. To which may be added,
the danger of surprise upon the other party, who may not know
what documents are to be produced, and, therefore, may not be
prepared to meet the inferences drawn from them.^ The same
mischiefs would follow, if the same writings were introduced to
the jury through the medium of experts.^
§ 581. But, with respect to the admission of papers irrelevant
to the record, for the sole purpose of creating a standard of com-
parison of handwriting, the American decisions are far from being
vmiform.* If it were possible to extract from the conflicting judg-
1 Eromage v. Rice, 7 C. & P. 548 ;
Waddington v. Cousins, Id. 595 ; Doe v.
Newton, 5 Ad. & El. 514; Huglies v.
Rogers, 8 M. & W. 123 ; Griffits v. Ivery,
11 Ad. & El. 322 ; The Eitzwalter Peer-
age, 10 CI & Fin. 193 ; Regina v. Barber,
1 Car. & Kir. 434. See also Eegina v.
Murphy, 1 Armstr. Maoartn. & Ogle, R.
204; Regina v. Caldwell, Id. 324. But
where a witness, upon his examination in
chief, stated his opinion that a signature
was not genuine, because he had never
seen it signed R. H., but always R. W.
H., it was held proper, on cross-examina-
tion, to show him a paper signed R. II.,
and ask him if it was genuine, though it
was not connected with the cause ; and he
answering that, in his opinion, it was so,
it was lield proper further to ask hun
whetlier he would now say that he had
never seen a genuine signature of the
party without tlie initials R. W. ; the ob-
ject being to test the value of the wit-
ness's opinion. Younge v. Ilonner, 1 Car.
& Kir. 51 ; 2 M. & Rob. 536, s. c.
2 Phil. & Am. on Evid. 700, 701. See
the Law Review, No. 4, for August, 1845,
pp. 285-304, where this subject is more
fully discussed.
" Experts are received to testify,
whether the writing is a real or a feigned
hand, and may compare it with other
writings already in evidence in the cause.
Uevett I. Braham, 4 T. 11. 497; Ham-
Too. I. 53
mond's case, 2 Greenl. 33 ; Moody v.
Rowell, 17 Pick. 490 ; Commonwealth v.
Carey, 2 Pick. 47 ; Lyon v. Lyman, 9
Conn. 55 ; Ilubly v. Vanhorne, 7 S. & R.
185; Lodge v. Phiplier, 11 S. & R. 333.
And the court will determine whether the
witness is or is not an expert, before ad-
mitting him to testify. The State v.
Allen, 1 Hawks, 6. But, upon this kind
of evidence, learned judges are of opinion
that very little, if any reliance, ought to
be placed. See Doe v. Suckermore, 5
Ad. & El. 751, per Ld. Denman ; Gurney
V. Langlands, 5 B. & Aid. 330 ; Rex v.
Cator, 4 Esp. 117 ; The Tracy Peerage,
10 CI. & Eiu. 154. In the People v. Spoo-
ner, 1 Denio, R. 343, it was held inadmis-
siblei Whore one writing crosses an-
other, an expert may testily which, in Ms
opinion, was the first made. Cooper v.
Beckett, 4 Moore, P. C. Cas. 433. The
nature of the evidence of experts, and
whether they are to be regarded as arbi-
trators, or quasi judges and jurors, or
merely as witnesses, is discussed with
great acumen by Professor Mittermaier,
in liis Treatise on Evidence in Criminal
Cases (Traitd de la Preuve en Matiera
Criminelle), Ch. XXVI. •
* In- Neio York, Virginia, and North
Caroliim, the English rule is adopted, and
such testimony is rejected. Jackson v.
Phillips, 9 Cowen; 94, 112; Titford v.
Knott, 2 Johns. Cas. 210. The I'eople v,
626
LAW OF EVIDENCE.
[PAET m.
ments a rule, which would find support from the majority of
them, perhaps it would be found not to extend beyond this : that
such papers can be offered in evidence to the jury, only when no
collateral issue can be raised concerning them; which is only
where the papers are either conceded to be genuine, or are such
as the other party is estopped to deny ; or are papers belonging
to the witness, who was himself previously acquainted with the
party's handwriting, and who exhibits them in confirmation and
explanation of his own testimony.^
§ 581a. A distinction, however, has been recently taken, between
the case of collateral writings offered in evidence to prove Iche
general style or character of the party's autograph, and of similar
writings, when offered to prove a peculiar mode of spelling another
person's name, or other words, in order to show from this fact.
Spooner, 1 Denio, K. 843 ; Eowt v. Kile,
1 Leigh, K. 216. Tlie State v. Allen, 1
Hawks, 6 ; Pope v. Askew, 1 Iredell, R.
16. [So, in Rhode Island. liinney v.
riynn, 2 R. I. Rep. 319. The weight of
authority in Kmtucku is against the ad-
mission of handwritings for the purpose
of comparison, even by the jury. Hawk-
ins V. Grimes, 13 B. Mon. 258.] In Mas-
sachusetts, Maine, and Connecticut, it seems
to have become the settled practice to ad-
mit any papers to the jury, whether rele-
vant to the issue or not, for the purpose
of comparison of the handwriting. Ho-
mer V. Wallis, 11 Mass. 309 ; Moody v.
Eowell, 17 Pick. 490; Richardson v.
Newoomb, 21 Pick. 315; Hammond's
case, 2 Greenl. 33; Lyon v. Lyman, 9
Conn. 55. In New Hampshire and South
Carolina, the admissibility of such papers
has been hmited to cases, where other
proof of handwriting is already in the
cause, and for the purpose of turning the
scale in doubtful cases. Myers v. Toscan,
8 N. Hamp. 47 ; The State v. Carr, 5 N.
Hamp. 367; Bowman v. Plunket, 3
McC. 518; Duncan v. Beard, 2 Nott &
McC. 401. In Pennsi/loania, the admis-
sion has be°-n limited to papers conceded
to be genu.ne. McCorkle v. Binns, 5
Biun. 840; Lancaster v. Whitehill, 10
S. & R. 110 ; or concerning which
there is no doubt. Baker v. Haines, 6
AVhart. 284; 3 Greenl. Ev. § 106, note.
[A paper proposed to be used as a stand-
ard, cannot be proved to be an original,
and a genuine signature, merely by the
opinion of a witness that it is so ; such
opinion being derived solely from his
general knowledge of the handwriting of
the person whose signature it purported to
be. Commonwealth v. Eastman, 1 Cush.
189, 217; Martin v. Maguire, 7 Gray,
177; Bacon v. Williams, 13 Gray, 525.
But an expert may testily, whether in his
opinion a signature is a genuine one or
simulated, altliough he has no knowledge
of the handwriting of the party whose
signature it is claimed to be. Withee v.
liowe, 45 Maine, 571.]
1 Smith V. Fenner, 1 Gall. 170, 175.
See also Goldsmith v. Bane, 3 Halst. 87 ;
Bank of Pennsylvania v. Haldemand, 1
Penn. R. 161 ; Greaves v. Hunter, 2 C. &
P. 447 ; Clermont v. Tullidge, 4 C. & P.
1 ; Burr v. Harper, Holt's Cas. 420 ;
Sharp V. Sharp, 2 Leigh, 249 ; Baker v.
Haines, 6 Whart. 284 ; Pinch v. Gridley,
25 Wend. 469 ; Fogg v. Dennis, 3 Humph.
47 ; [Depue v. Place, 7 Penn. Law Jour.
289 ; Commonwealth v. Eastman, 1 Cush.
189 ; Hicks v. Pearson, 19 Ohio, R. 426. A
■writing made in the presence of the court
and jury by the party whose signature is
in dispute may be submitted to the jury
for the purpose of comparison. Chandler
V. Le Barron, 45 Maine, 534.] [ *A press
copy of a letter might furnish a very unsat-
isfactory standard of comparison by which
to determine whether another paper, the
handwriting of which was in controversy,
was written by the same person; but,
although incompetent as a means of com-
parison, by which to judge of the charac-
teristics of a handwriting which is hi dis-
pute, it might still retain enough of its
original character, to be identified by n
witness, when its own genuineness was
called in question. Bigelow, Ch. J., in
Commonwealth v. Jeffries, 7 Allen, 562.]
CHAP. VI.] PRITATE WRITINGS. 627
that the principal writing was his own. Thus, where, to an action
for a libel, the defendant pleaded that the plaintiff had sent to him
a libellous letter, and, to prove this, gave in evidence the envelope,
in which the defendant's name was spelt with a superfluous t, and
then offered in evidence some other letters of the plaintiff, in
which he liad spelt the defendant's name in the same peculiar
manner; which last-mentioned letters Patteson, J., rejected; it
was held that the rejection was wrong, and that the letters were
admissible.^
§ 682. Where the sources of primary evidence of a written in-
strument are exhausted, secondary evidence, as we have elsewhere
shown, is admissible ; but whether, in this species of evidence, any
degrees are recognized as of binding force, is not perfectly agreed ;
but the better opinion seems to be, that, generally speaking, there
are none. But this rule, with its exceptions, having been previ-
ously discussed, it is not necessary here to pursue the subject any
further.^
§ 583. The effect of private writings, when offered in evidence,
has been incidentally considered, under various heads, in the
preceding pages, so far as it is established and governed by a^y
rules of law. The rest belongs to the jury, into whose province
it is not intended Iiere to intrude.
§ 584. Having thus completed the original design of this volume,
in a view of the principles and rules of the law of evidence, under-
1 Brookes v. Tichbome, 14 Jour. 1122 ; letters and the mode of writing of a partic-
2 Eng. Law & Eq. E. 374. In this case, ular word, but to prove a peculiar mode
Parke, B., after stating the case, observed of spelling words, which might be evi-
as follows : " On showing cause, it was denced by the plaintiff having orally spelt
hardly disputed that, if the habit of the it in a different way, or written it in that
plaintiff so to spell the word was proved, it way, once or oftener, in any sort of char-
was not some evidence against the plaintiff, acter, the more frequently, the greater
to show that he wrote the Ubel ; indeed we the value of the evidence. Eor that pur-
think that proposition cannot be disputed, pose, one or more specimens written by
the value of such evidence depending on him, with that pecuUar orthography,
the degree of peculiarity in the mode of would be admissible. We are of opinion,
spelling, and the number of occasions in therefore, tliat this evidence ought to have
which the plaintiff had used it; but it was been received, and not having been re-
objected, that the mode of proof of that ceived, the rule for a new trial must be
habit was improper, and that the habit made absolute." In Jackson v. PhiUips,
should be proved as the character of hand- 9 Cowen, 94, where the facts were of a
writing, not by producing one or more similar character, the collateral deed was
specimens and comparing them, but by offered and rejected, on the sole ground
some witness who was acquainted with it, of comparison of hands ; the distinction in
from having seen the party write, or cor- the text not having been taken or alluded
respondhig with him. But we think this to.
is not like the case of general style or ^ Supra, § 84, note (2) ; Doe v. Boss,
character of handwriting ; the object is 7 M. & W. 102 ; 8 Dowl. 389, s. c.
not to show similarity of the form of the
628 LAW OP EVIDENCE. [PAUT IH.
stood to be common to all the United States, this part of the work
is here properly brought to a close. The student will not fail to
observe the symmetry and beauty of this branch of the law, under
whatever disadvantages it may labor from the manner of treat-
ment ; and will rise from the study of its principles, convinced,
with Lord Erskine, that " they are founded in tlio charities of
religion — in the philosophy of nature — in the truths of history —
and in the esperience of common life." ^
1 24IIoweU's St. Tr. 966.
INDEX.
A.
Section
ABDUCTION,
wife competent to prove . 343
ACCESS,
when presumed . 28
ACCESSARY,
not a competent witness for the principal . . . . « . 407
ACCOMPLICES,
when admissible as witnesses 379-382
(See Witnesses.)
ACCOUNT,
rendered, effect of, as an admission 212
ACQUIESCENCE,
what is, so as to bind the party 197
ACQUITTAL,
record of, when evidence 583
ACTS OF PARTIES,
when admissible to explain writings 293, 295
ACTS OF STATE, {See Public Records and Documents.)
how proved 479
ACTS,
book of, when evidence • 519
ADJUSTiMENT OF LOSS,
when and how far conclusive 212
(See Admissions.)
ADMINISTRATION,
letters of, how proved 519
prima facie evidence of death 550
foreign, effect of 544
68»
630 INDEX.
Section
ADMINISTRATOE,
competency of, as a witness 347, 402
admissions by 179
promise by, when it must be in writing' 267
ADMIEALTY,
courts of and seals, judicially noticed 5, 479
judgments, when and how far conclusive 525, 541
ADMISSIONS,
of contents of a writing, when not sufficient 96
distinction between eonfessio jvris and confesdo facti . .96, 203
by agents, when binding on principal 113, 114
what and when receivable 169, 170
made by a party to the record 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
interest 174
rated parishioner 275
quasi corporators 175, n.
one of several parties, common interest not suffi-
cient, unless also joint 176
apparently joint, is ^n'ma_/ac«e sufficient .... 177
answer in chancery of one defendant, when receiv-
able against others 178
persons acting in outer droit, when receivable . . 179
guardian, &c., binds himself only 179
party interested 180
strangers, when receivable 181
a person referred to by the party 182
whether conclu-
sive .... 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
time and circumstances of making the admission .... 192
offer of compromise is not an admission 192
made under duress 193
INDEX. 631
SXOTIOM
ADMISSIONS— Continued.
directand incidental admissions, same in eifect 194
implied from assumed character, language, and conduct . 195, 196
acquiescence, when 197, 197a
possession of documents 198
implied assent to the verbal statements of another . . . . 199
^verbal to be received with great caution 200
whole to be taken 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, 186, 205, 527 a
by payment into court 205
if improvidently 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
ADVERSE ENJOYMENT,
when it constitutes title 17
AFFIDAVIT,
may be made in his own case, by atheist 370, n.
persons infamous .... 375
other parties . . 348, 349, 558
wife 344
AFFIRMATION,
judicial, when substituted for an oath 371
AFFIRMATIVE, {See Onus Peobandi.)
AGE,
proof of 104, 116, 493
AGENT,
when and how far his declarations bind the principal . 113, 234
when a competent witness for the principal and when
not 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 Peobandi.)
material t 51
6^2 INDEX.
Sectiom
ALLEGATIONS— Continued.
exclude collateral facts 52
what are collateral facts 53
when character is material 54, 65
descriptive, nature of 56, 57, 58
formal and informal, what 69
made desci'iptive by the mode of statement 60
of time, place, quantity, &c., when descriptive .... 61, 62
redundant 67
diiFerence between these and redundancy of proof . 68
" immaterial," " impertinent,"
and " unnecessary " .... 60, n.
ALTEEATION,
of wi-itten contracts by oral agreements 302
of instruments, what, and effect of 564^568
distinguished from spoliation 566
{See Private Writings.)
AMBIGUITIES,
latent and patent, what 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 .... 73
ANCIENT WRITINGS,
when admissible without proof of execution . 21, 142-144, 570
ANSWER,
of one defendant in chancery, when admissible against the
other 178
what amount of evidence necessary to disprove . . . 260, 261
admissible for defendant, why 361,651
proof of , 512
APPOINTMENT TO OFFICE,
when proved by acting in it 83-92
ARBITRATORS,
not bound to disclose grounds of award 249
ARMORIAL BEARINGS,
when evidence of pedigree 105, n.
ARREST,
exemption from, {See Witnesses.)
ARTICLES OF THE PEACE,
by wiTe against husband 343
ARTICLES OF WAR, {See Acts of State.)
INDEX. 633
Section
ASSAULT AND BATTERY,
of wife, by husband 343
ASSIGNOR,
admissions by 190
ASSUBIPSIT, {See Contract.)
action of, wlieu barred by prior recovery in tort 532
ATHEISTS,
incompetent witnesses ■. . 368-372
(&e Witnesses.)
ATTACHMENT,
for contempt 319
ATTENDANCE OF WITNESSES,
bow procured 309-319
{See Witnesses.)
ATTESTING WITNESSES,
declarations of deceased witnesses rejected, why .... 126
{See Pkivate Whitings.)
ATTORNEY,
when Iiis admissions bind his client 188
whetlier a competent witness 364, 386
{See Privileged Cojijionications.)
AUCTIONEER,
is agent of both buyer and seller 269
AVERMENT, {See Allegations.)
AWARD,
generally conclusive 183, n., 184
B.
BAIL,
how rendered a competent witness for principal ..... 430
{See Witnesses.)
BAILOR,
when a competent witness 348
BANK,
books of 474-493
{See Public Recokds and Docdments.)
BANKRUPT,
when competent as a witness 392
BANKRUPTCY,
eifect of discharge by, to restore competency 430
BAIiON AND FEME, {See Husband and Wife.)
634 INDGZ.
Sectioit
BAPTISM,
register of 493
BEGINNING AND REPLY,
who are entitled to it 75
whether aflfected by proof of damages 75, 76
BELIEF,
grounds of 7—12
of handwriting 575
{See Experts, Witnesses.)
BENTHAM, JEREMY,
character of his legal writings 435, «.
BIBLE,
family record in, when evidence 104-
BIGAMY,
proof of, by second wife 339
BILL IN EQUITY,
how far its statements are evidence against plaintiff .... 212
BILL OF EXCHANGE,
parties to, when incompetent to impeach 383-385
(<See Witnesses.)
BILL OF PARCELS,
may be explained by parol 305 a
BIRTH,
proof of 104, 116, 493
BISHOP'S REGISTER,
inspection of 474
nature of 483, 484
{See Public Books.)
BLANK,
in an instrument, when and by whom it may be filled . 567, 568,
568 a
BOND, {See Private Writings.)
BOOKS,
of science, not admissible in evidence 44, n.
shop, when and how far admissible in evidence 117
of third persons, when and why admissible . . 115-117, 120,
151-154
{See Hearsay.)
office books, corporation books, &c 474-476, 493—495
. {See Public Records and Documents.)
BOUNDARY,
surveyor's marks provable by parol .... . . 94
INDEX. 635
Section
BOUND AET— Continued.
when provable by reputation 145, n.
rules of construction as to 301, n,
BUKDEN OF PROOF, 74-81
(See Onus Peobandi.)
C.
CANCELLATION, (See Deed, Will.)
CAPTAIN, (See Shipmasteb.)
CARRIER,
when admissible as a witness 416
CERTIFICATES,
by public officers, in what cases admissible 498
CERTIORARI,
to remove records 502
CESTUI QUE TRUST,
when his admissions are evidence against his trustee . . . 180
CHANCERY, (See the particular titles of Bill, Answek, Depo-
sitions, and other proceedings in Chancery.)
CHARACTER,
when it is relevant to the issue 54, 55
CHILDREN,
competency of, as witnesses 367
CIRCUMSTANTIAL EVIDENCE,
(See Evidence, Pkesumption.)
CLERGYMEN,
generally bound to disclose confessions made to them t 229, 247
CLERK,
of attorney, when not compellable to testify 239
COHABITATION,
when presumptive evidence of legitimacy of issue .... 82
COLLATERAL FACTS,
what, and when excluded 52, 443
COLOR,
when a material averment 65
COMMISSION,
to take testimony 320
COMMITMENT,
proved by calendar 493
COMMON,
customary right of, provable by reputation . 128, 131, 137, w., 405
636 INDEX.
SECTioa
COMMONEfi,
when a competent witness 505
COMPARISON OF HANDWRITINGS,
{See Private Writings.)
COMPETENCY, {See Husband and Wife, Witnesses.)
COMPROMISE,
offer of, not an admission 192
CONDEMNATION,
{See Records and Judicial Proceedings.)
CONFESSION OF GUILT,
difference between confessio juris and confessio facti ... 96
to be received with great caution 214
judicial, conclusive 216
extrajudicial, not conclusive, without corroborating proof . . 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
private persons .... 223
during official examination by magistrate . . . 224-227
what inducements do not render inadmissible 220
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 . . . 237, 248
{See Evidence. Privileged Communications.)
CONFIRMATION,
of testimony of accomplices when required . . . 380, 381, 382
CONSENT,
when implied from silence 197,198,199
CONSIDERATION,
when the recital of payment of, may be denied 26
when it must be stated and proved 66, C7, 68
when a further consideration may be proved .... 285, 304
CONSOLIDATION RULE,
party to, incompetent as a witness 395
INDEX. 637
Section
CONSPIRACY,
conspirators bound by each otlier's acts and declarations . . Ill
penerally not competent witnesses for each other .... 407
CONSTABLE,
confessions made under inducements by, inadmissible . . . 222
CONSTEUCTION,
defined 277
CONTEMPT,
in arresting a witness, or preventing his attendance . . . . 316
CONTRACT, ~-
when presumed 47
is an entire thing, and must be proved as laid 66
CONVEYANCE,
when presumed 46
CONVEYANCER,
communications to, privileged 241
CONVICTION,
record of, is the only proper evidence 374, 375
(See Witnesses.)
COPY,
proof by, when allowed . . 91, 479-490, 513-520, 559, 571, n.
{See Public Records and Documents. Records and
Judicial AVritings.)
CORONER, {See Officer.)
CORPORATIONS,
their several kinds and. natures 331-333
sliares in, are personal estate 270
CORPORATOR,
when admissible as a witness 331-333
{See Witnesses.)
admissions by 175, n.
CORRESPONDENCE,
the whole read 201, n.
{See Letters.)
CORROBORATION, {See Confirmation.)
of answer in chancery 260
CORROBORATIVE EVIDENCE,
what it is 381, n.
COSTS,
liability to, renders incompetent 401, 402
{See Witnesses.)
VOL. I. 64
638 INDEX.
Sectioh
CO-TRESPASSER,
when admissible as a witness 357, 359
(See Witnesses.)
COUNSEL, (See Pkivileged Communications.) . . 237-246
COUNTERPART,
if any, must be accounted for, before secondary evidence is
admitted 558
COVENANT,
effect of alterations upon 56^568
(See Private Writings.)
COVERTURE, (See Husband and Wipe.)
CREDIT OF WITNESSES,
mode of impeaching 461—469
restoring 467
(See Witnesses.)
CREDITOR,
when competent as a witness 392
CRIMEN FALSI, what 373
(See Witnesses.)
CRIMES,
what render incompetent 373, 374
(iSise Witnesses.)
CRIMINAL CONVERSATION, action for,
letters of wife to a husband admissible 102
wife competent to prove 344
CROSS-EXAMINATION,
of witnesses 445-467
(See Witnesses.)
COURTESY,
tenant by, a competent vdtness for the heir 389
CUSTODY,
proper, what 142
CUSTOM,
how proved 128-139
by what witness 405
(See Hearsay.)
CUSTOM-HOUSE,
books, inspection of 475
(See Public Books.)
INDEX. 639
D.
Siiciios
DAMAGES,
proof of 75
when unliquidated 76
DEAF AND DUMB,
competent witness 366
DEATH,
when presumed 29, 80, 35, 41
proof of 550
DECLARATIONS, (^ee Admissions. Heaesat.)
DECREES IN CHANCERY,
proof of 511
their admissibility and effect 550, 551
DEED,
when presumed 46
how to be set out in pleading 69
cancellation of, when it devests the estate 265, 568
delivery of 568 a, n,
DEFAULT,
judgment by, its effect on admissibility of the party as a wit-
ness for co-defendants 355, 356, 357
DEMURRER,
in chancery, effect of 551
DEPOSIT,
of money, to restore competency of a witness 430
DEPOSITIONS,
of witnesses subsequently interested, whether admissible . 167, 168
residing abroad, when and how taken .... 320
sick, &c 320,321
in general, manner of taking 321-324
in perpetuum 324, 325, 552
taken in chancery, how proved, to be read at law . , 552, 553
foreign 552
to be read in another action, complete identity of parties not
requisite 553, 554
power of cross-examination requisite .... 554
when admissible against strangers 555
(See Witnesses.)
DESCRIPTION,
what is matter of ... . . 56-72
640 INDEX.
Sectioh
DESCRIPTION— Continued.
in general . 56-64
in crimuial cases . 65
in contracts 66-68
in deeds 68, 69
in records 70
in prescription 71
DEVISE,
must be in writing 272
admissibility of parol evidence to explain . . . 287, 289-291
DIPLOMA,
of physician, when necessary to be shown 195, ra.
DISCHARGE,
of written contract, by parol 302-304
DISFRANCHISEMENT,
of a corporator, to render him a competent witness .... 430
DISPARAGEMENT OF TITLE,
declarations in 109
DIVORCE,
foreign sentence of, its effect 544, 545
DOMICILE,
declarations as to 108
DOWER,
tenant in, a competent witness for heir 389
DRIVER,
of carriage, when incompetent as a witness 396
DUCES TECUM,
subpojna 414, 558
(/See Private Writings. Witnesses.)
DUPLICATE,
must be accounted for, before secondary proof admitted . . 558
DURESS,
admissions made under 193
DYING DECLARATIONS,
when admissible 156-162,346
E.
ECCLESIASTICAL COURTS,
number of witnesses required in . 260 a, n.
what part of their jurisdiction known here .... 518, 659
proceedings in, how proved, &c 510,518
their effect . . . ooO
INDEX. 641
Section
EJECTMENT,
defendant in, when a competent witness 360
ENROLMENT,
of deeds 573, n.
ENTRIES,
by third persons, when and why ad-
missible 115-117, 120, 151-155
(/See Hearsay.)
ERASURE, {See Axterations. Private Writings.)
ESTOPPEL,
principle and nature of 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 1
moral, what 1
competent 2
satisfactory and sufficient 2
direct and circumstantial . 13
presumptive {See Presumption.)
relevancy of 40-56
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
proof of substance of issue is sufficient 56-73
rules of, the same in criminal as in civil cases 65
the best always is risquired 82
what is meant by best evidence 82
primary,'' and secondary, what 84
secondary, whether any degrees in 84, n.
oral, not to be :r bstituted for written, where the law
requires writing 86
for written contract ... 87
for any writing material to
the controversy .... 88
unless collateral . 89
for written declaration in ex-
tremis 16]
64*
642 INDEX.
li
SectioK
EVIDENCE — Continued.
when it may be given, though a_ writing esists .... 90
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, &c. . . . 91, 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
what amount necessary to establish a charge of trea-
son 255, 256
to establish a charge of perjury . . 257
to overthrow an answer in chan-
cery 260
in ecclesiastical courts . . . 260 a, re.
written, when requisite by the statute of frauds . . . 261-274
instruments of 307
oral, what 308
corroborative, what 381, w.
objection to competency of, when to be taken 421
{See Privileged Communications.)
EXAMINATION,
on criminal charge, when admissible 224, 227, 228
signature of prisoner unnecessary . . . 228
EXAMINATION IN BANKRUPTCY,
not admissible against the bankrupt, on a criminal charge . . 226
EXCHEQUER,
judgments in, when conclusive 525, 541
INDEX. 643
Section
EXECUTION,
of deeds, &c., proof of 569, 572
(See Private Weitings.)
EXECUTIVE,
acts of, how proved 479
EXECUTOR,
admissions by 179
foreign 544
EXEMPLIFICATION,
what and how obtained 501
EXPENSES OF WITNESSES, (See Witnesses.)
EXPERTS,
who are 440, n.
when their testimony is admissible to decipher writings . . 280
to explain terms of art . 280
to explain provincial-
isms, &c 280
to what matters they may give opinions . . 440, 576, 580, n.
F.
FACTOR, (See Agent.)
FAMILY, *
recognition by, in proof of pedigree 103, 104, 134
i (See Heaksat. Pedigree.)
FELONY,
conviction of, incapacitates witness 373
(See Witnesses.)
FIXTURES,
what are 271
FLEET BOOKS, (See Public Books.)
FORCIBLE ENTRY,
tenant incompetent as a witness 403
(See Witnesses.)
FORCIBLE MARRIAGE,
wife competent to prove 343
FOREIGN COURTS, (See Public Records and Documents.
Records and Judicial Writings.)
FOREIGN JUDGMENTS,
of infamy, do not go to the competency 376
proof of 514
in rem, effect of 543-545
644 INDEX.
Sectioh
FOREIGN JVDGMEISTS— Continued. .
in personam 545—549
{See Records and Judicial Wkitings.)
FOREIGN LAWS,
proof of 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 373, 374
party whose name is forged, when competent 414
(See Private Writings.)
FRAUD,
general presumption against 34, 35, 80
(See Presumptions.)
FRAUDS,
statute of 262-274
(See Writings.)
G.
GAiME LAWS,
want of qualifications under, must be proved by the
affirmant 78
GAZETTE,
in what cases admissible 492
(See Public Records and Documents.)
GOVERNMENT,
acts of, how proved 383, 478, 491, 492
(See Public Records and Documents.)
GOVERNOR,
of a State or Province, when not bound to testify .... 251
provincial, communications from, privileged 251
(See Privileged Communications.)
GRAND JURY,
transactions before, how far privileged 252
(See Privileged Communications.)
GRANT,
when presumed 45
conclusively 17
GUARDIAN,
admission by 179
INDEX. 645
Sbctiob
GUILTY POSSESSION,
evidence of 34, 3.5
H.
HABEAS CORPUS,
ad testificandum . . 312
{See Witnesses.)
HANDWRITING,
attorney competent to prove client's writings 242
proof of, in general 576-581
{See Pkivate Wkitings.)
HEARSAY,
what it is 99, 100
what is not hearsay
information, upon which one has acted . . . . 101
conversation of one whose sanity is questioned . 101
answers given to inquiries for information . 101, 574
general reputation 101, 101 a
expressions of bodily or mental feelings . . . 102
complaints of injury, recenti facto 102
declarations of family, as to pedigree . 103, 104, 104 a,
134
inscriptions 105
declarations accompanying and qualifying an
act done 108, 109
in disparagement of title 109
of other conspirators Ill
of partners 112
of agents 113, 114
of agents and employees of corporations . .114a
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 geneial 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
646 INDEX.
Sbctiou
HEARSAY— Continued.
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 . . . 141-1-16
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 wit-
ness 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 te>tify . 159
circumstances must be shown to the court . . 160
if written, writing must be produced .... 161
weakness of this evidence 1 62
substance of the declarations 161a
answers by signs 161 i
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 ..... 371
HEIR,
apparent, a competent witness for ancestor , ''""
INDEX. 647
Seciioh
HERALD'S BOOKS,
when admissible 105, n.
HIGHWAY,
judgment for non-repair of, when admissible in favor of
other defendants 534
HISTORY,
public, when admissible 497
HOMICIDE,
Avhen malice presumed from 34
HONORARY OBLIGATION,
does not incapacitate witness 388
HOUSE,. (See Legislature.)
HUSBAND AND WIFE,
intercourse between, when presumed 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
whether husband's consent removes incompetency .... 340
rule applies when husband is interested 341, 407
competent witness in collateral pi-oceedings 342
exceptions to the rule in favor of wife 343, 344
rule extends to cases of treason, semb 345
wife not competent witness for joint conspirators with her
husband 407
L
IDENTITY,
proof of, when requisite 381, 493, 575, 577
by attorney 245
TDIOT,
incompetent as a witness 365
INCOMPETENCY, (-See Witnesses.)
INCORPOREAL RIGHTS,
how affected by destruction of deeds 265, 568
INDEMNITY,
when it restores competency 420
INDICTMENT,
inspection and copy of, right to 471
648 INDEX.
SECtlOH
INDOESEE,
how affected by admissions of indorser ........ 190
{See Admissions.)
INDORSEMENT,
of part payment, on a bond or note 121, 122
INDORSER,
when a competent witness 190, 383, 385
{See Witnesses.)
INDUCEMENT,
when it must be proved 63, n.
INFAMY,
renders a witness incompetent 372-376
how removed 377, 378
{See Witnesses.)
INFANCY,
proof of, rests on the party asserting it 81
{See Onus Probandi.)
INFERIOR COURTS,
inspection of their records 473
proof of their records 513
{See Public Records and Documents. Records and
Judicial Writings.)
INFIDEL,
incompetent as a witness 368-372
{See Witnesses.)
INFORMER,
competency of, as a witness 412-415
{See Witnesses.)
INHABITANT,
admissions by 175
when competent as a witness 331
rated 331, n.
INNOCENCE,
presumed 34, 35
{See Presumptions.)
INQUISITIONS,
proof of 5lJ>
admissibility and eflfect of 656
INSANITY,
presumed to continue after being once proved to exist ... 42
{See Lunacy.)
INSCRIPTIONS,
provable by secondary evidence 95, 105
INDEX. 649
Sbctios
mSOLVENT,
omission of a claim by, in schedule of debts due to him . . 196
{See Admissions.)
INSPECTION,
of public records and documents 471-478
(See Public Records and Documents.)
of private writings 559-562
(.See Private Writings.)
INSTRUCTIONS,
to counsel, privileged 240, 241
(See Privileged Communications.)
INTEREST,
of vf itness, effect of, when subsequently acquired . 1 67, -1 1 8-420
subsequent, does not exclude his previous deposition in
chancery 168
whether it does at law 1 68
{See Witnesses.)
INTERPRETATION,
defined 277
INTERPRETER,
his declarations, when provable aliunde 183
communications through, when privileged 239
INTESTATE,
his declarations admissible against his administrator . . . 189
{See Admissions.)
ISSUE,
proof of, on whom. (See Onus Probandi.)
what is sufBcicnt proof of 56-73
{See Allegations. Variance.)
J.
JEW,
how to be sworn 371
'.lOINT OBLIGOIi,
competency of 395
JOURNALS, {See Legislature.)
JUDGE,
his province 49, 160, 219, 277, m., 305, ?i.
when incompetent as a witness 166, 249, 364
his notes, when admissible 166
VOL. I. 55
650 INDEX.
SeCtios
JUDICIAL NOTICE,
of what things taken .... 4, 5, 6, 6 o
JUDGMENTS, {See Eecords and Judicial Writings.)
JURISDICTION,
of foreign courts must be shown 540, 541
(See Records and Judicial Writings.)
JURORS,
their province 49, 160, 219, 277, n., 365, n.
their competency as witnesses 252, 252 a, 363, n.
K.
KINDRED, (See Family. Hearsay. Pedigree.)
I'-
LARCENY,
presumption of, from possession when 11, 34
{See Presumptions. Guilty Possession.)
LAW AND FACT, ' 49
LEADING QUESTIONS,
what, and when permitted 434, 435, 447
(See Witnesses.)
LEASE,
when it must be by writing 263, 264
expounded by local custom, when 294
LEGAL ESTATE,
conveyance of, when presumed 46
LEGATEE,
when competent as a witness 392
LEGISLATURE,
transactions of, how proved 480—482
{See PuuLic Records and Documents.)
proceedings in, how far privileged from disclosure . . . 251, n.
LEGITIMACY,
when presumed 28
LESSEE,'
identity of, with lessor, as party to suit 535
LESSOR,
of plaintiff in ejectment, regarded as the real party . . . 535
LETTERS,
post-marks on 40
parol evidence of contents of 87, 88
INDEX. 651
Section
LETTEKS — Continued.
proof of, by letter-book 116
cross-examination as to 88, 89, 463-466
addressed to one alleged to be insane 101
written by one conspirator, evidence against others . . . . Ill
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 Evidence. Hearsay. Parol Evidence. Witnesses.)
LETTERS ROGATORY,
what 320
LIABILITY OVER,
its effect on competency of witness 393-397
(See Witnesses.)
LIBEL,
published by agent or servant, liability of principal for . 36, 234
LICENSE,
must be shown by the party claiming its protection .... 79
LIS MOTA,
what, and its effect 131-134
LLOYD'S LIST,
how far admi.-sible against underwriters 198
LOG-BOOK,
how far admissible 495
LOSS,
of private writings, proof of 558
of records 84, n., 508
(See Evidence. Private Writings. Records and Judicial
Writings.)
LUNACY,
when presumed to continue 42
inquisition of, its admissibility and effect 556
M.
MAGISTRATE,
confessions made to 216, 222, 224, 227
(See Confession of Guilt.)
MALICE,
when presumed 18, 34
MALICIOUS PROSECUTION,
testimony of defendant given before grand jury, admissi-
ble in 352
652 INDEX.
Sectios
MALICIOUS PROSECUTION— (7owi!w«(erf.
judgment of acquittal, when admissible in 538
copy of judgment of acquittal, whether plaintiff entitled to . 471
MALICIOUS SHOOTING,
wife competeut to prove 343
MAPS,
when'evidence 139
MARRIAGE,
whether provable by reputation 107
forcible, wife admissible to prove 343
second, in case of polygamy, by whom proved 339
and time of, included in pedigree 104
when presumed, from cohabitation 27, 207
foreign seutences as to, effect of 5'14, fl4.j
proof of 342, 343, 484, 493
(See Husband and Wife. Public Records and Documents.
Records and Judicial Writings.)
MASTER,
when servant witness for 416
when not 396
MEDICAL WITNESS,
not privileged 248
may testify to opinions, when 440
when not 441
MEMORANDUM,
to refresh memory of witness 436-439
{See Witnesses.)
MISTAKE,
admissions by, effect of 206
of law apparent in a forei'in judgment, effect of ... . 547, n.
MIXED QUESTIONS, 49
(See Judge. Jurors.)
MONUMENTS, (See Boundary. Inscriptions.)
MURDER,
when malice presumed 18
N.
NAVY OFFICE,
books of 493
(See Public Records and Documents.)
INDEX. 653
Section
NEGATIVE,
when and by whom to be proved 78-81
(ASee Onus Probandi.)
NOLLE PROSEQUI,
effect of, to restore competency 350,363
((See Witnesses.)
NON-ACCESS,
husband and wife, when incompetent to prove .... 28, 253
NOTICE,
to produce writings 560-563
{See Private Writings.)
NOTORIETY,
general, when evidence of notice 138
whether noticeable by a judge • 364
NULLUM TEMPUS OGGURRIT REGI,
when overthrown by presumption 45
0.
OATH,
its nature 328
in litem, when admissible 348-350, 352, 558
how administered 371
OBLIGEE,
release by one of several, binds all 427
{See Witnesses.)
OBLIGOR,
release to one of several, discharges all 427
{See Witnesses.)
OFFICE,
appointment to, when presumed 83, 92
OFFICE BOOKS, {See Public Records and Documents.)
OFFICER,
(feyacio, jori'ma yaci'e proof of appointment 83,92
OFFICIAL COMMUNICATIONS,
when privileged 249-252
{See Privileged Communications.)
ONUS PROBANDI,
devolves on the affirmant 74
on party producing a witness deaf and dumb . . . 366
on party alleging defect of religious belief .... 370
in probate of wills 77
55*
654 INDEX.
Sbctiom
ONUS PROBANDI— Continued.
in actions on promissory note?, &c., fraudulently pi'^ in
circulation 81 a
in actions by the holder of a bank-bill, shown to have
been stolen 81 u
in criminal cases 81 i
exceptions to the rule —
1. when action founded on negative allegation . . 78
2. matters best known to the other party .... 79
3. allegations of criminal neglect of duty .... 80
4. other allegations of a negative character ... 81
OPINION,
when evidence of it is admissible 440, 576, 580, n.
(See Experts.)
OVERT ACT,
proof of, in treason 235
OWNER,
of property stolen, a competent witness 412
OWNERSHIP,
proved by possession 34
P.
PAPERS,
private, when a stranger may call for their production . . . 246
(See Private Writings.)
PARDON,
its effect to restore competency 877, 378
(See Witnesses.)
PARISH,
boundaries, proof of 145
judgment against, when evidence for another parish .... 534
books 493
(See Public Records and Documents. Boundaries.)
PARISHIONER,
rated, admissions by 179
PARLIAMENT,
proceedings in, how far privileged from disclosure . . . 251, re.
PAROL EVIDENCE,
its admissibility to explain writings 275-305
principle of exclusion 276
the rule excludes only evidence of language .... 277, 282
INDEX. 655
Section
PAROL ^YIDENCE— Continued.
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 '
excludes evidence of intention .... 282 a
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, 289-29 1
Mr. "Wigram's rules of interpretation of wills 287, n.
of any intrinsic circumstances admissible 288, 288 a
who must determine correct reading of a paper .... 288 b
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
to explain latent ambiguities 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 dama-
ges waived 304
to contradict a receipt, when 305
to explain a bill of parcels 305, n.
PARSON,
entries by deceased rector, &c., when admissible 155
{See Hearsay.)
PABTIOUPS GRIMINIS,
admissible as a witness 879
656 INDEX.
Sectiom
PARTIES,
generally incompetent as witnesses 329, 33C
competent, when 348, 363
{See Witnesses. Admissions.)
PARTNERS,
mutually affected by each other's acts 112
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, (See Paktners.)
PAYEE,
admissibility of, to impeach the security 383-385
(See Witnesses.)
PAYMENT,
provable by parol 302-305
of money, effect of, to restore competency 408-430
(See Witnesses.)
PAYMENT INTO COURT,
when and how far conclusive 205
PEDIGREE,
what is included in this term 104
proof of 103-105
(See Heaesat.)
PERAMBULATIONS,
when admissible in evidence 146
PERJURY,
what amount of evidence necessary to establish . . . 257-260
PERSONALTY,
what is, though annexed to land 271
PHYSICIANS,
generally bound to disclose confidential communications . 248
(See Privileged Communications.)
PLACE,
when material or not 61, 62, 63, 65
PLAINTIFF,
when admissible as a witness 348, 349, 361, 558
(See Witnesses.)
PLEAS AND PLEADINGS, (See Allegations.)
POSSESSION,
character of, when provable by declarations of possessor . . 106
(See Hearsay.)
INDEX. 657
Section
POSSESSION— Continued.
when evidence of property 34
of guilt 34
{See Presumptions.)
whether necessary to be proved, under an ancient
deed 21, 144
POSTMARKS, '. . 40
POST-OFFICE,
books 484
■ {See Public Records and Documents.)
PRESCRIPTION,
what 17
variance in the proof of 71, 72
must be precisely proved 56, 58
PRESIDENT OF THE;, UNITED STATES,
(See Executive. Privileged Communications. Witnesses.)
PRESUMPTIONS,
of law, conclusive, on what founded 14,15
conclusive, how declared 16, 17
from prescription 17
from adverse enjoyment 16
from use of deadly weapon 18
in favor of judicial proceedings 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
omnia rite acta 20 a
as to capacity and discretion 28, 367
legitimacy 28
coercion of wife by husband 28
survivorship 29, 30
neutrality of ship 31
performance of duty 227
from spoliation of papers 31
principle and extent of conclusive presumptions of law . 31,32
658 INDEX.
SECTIOIf
PRESUMPTIONS— Continued.
disputable, nature and principles of 33
of innocence 34, 35
except in case of libel, and when . . 36
of malice 34
of lawfulness of acts 34
from possession 34
guilty possession 34
destruction of evidence 37
fabrication of evidence 37
usual course of business 38, 40'
non-payment twenty years 39
of continuance 41
of life, not after seven years' absence, &c. ... 41
of continuance of partnership, once proved ... 42
of opinions and state of mind 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 fact, nature of 44
belong to the province of the jury 44
when juries advised as to, by the court . . . 45-48
PEINCIPAL DEBTOR,
when his admissions bind the surety 187
PRINCIPAL FELON,
accessory, not a competent witness for 407
PRISON BOOKS,
when and for what purposes admissible 493
(See Public Records and Documents.)
PRISONER OF WAR,
mode of procuring attendance of, as a witness 312
PRIVATE WRITINGS,
contemporaneous, admissible to explain each other .... 283
proof of, when lost 557, 558
diligent search required 558
production and inspection of, how obtained 559
notice to produce 560
when not necessai-y 661
how directed and served .... 561, 562
when to be called for 563
INDEX. 659
Section
PRIVATE WRITINGS — Continued.
alteratioQ in, when to be explained 564
when presumed innocent 564
to be tried ultimately by the jury 564
a deed renders it void 665
reasons of this rule 665
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 docs not devest estate . . . 568
alterations made by party defeats estate lying in grant . . . 668
destroys future remedies .... 568
made between two parties to an indenture, but
not affecting 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 673
subscribing witness, who is . . ^ 569
diligent search for witnesses required 574
secondary proof, when witness not to be had .... 84, n., bib
handwriting, how proved 272, 576
personal knowledge of, required 677
exceptions to this rule 272, 578
comparison of handwriting, by what other papers . . 579-582
PRIVIES,
who are privies 23, 189, 190, 211
PRIVILEGE OF WITNESS,
from arrest 316
from answering 451—460
PRIVILEGED COMMUNICATIONS,
1. made to legal counsel — principle of exclusion .... 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
protection remains for ever, unless waived by the party . 243
limitations of the rule . . 244, 246
660 INDEX.
Section
PRIVn.EGED COMMUNICATIONS — Cowforawef?.
when title-deeds and papers of one, not a party may be
called out of the hands of his agent 246
2. made to clergymen, 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 award . . . 249
5. secrets of State 250, 251
6. proceedings of grand-jurors 252
7. between husband and wife 254, 334
PRIZE,
foreign sentence of condemnation as 541
PROBATE COURTS,
decrees of, when conclusive 518, 550
PROGHEIN AMY,
admissions by . . . 179
inadmissible as a witness 347, 391
PROCLAMATIONS,
proof of 479
evidence of, what 491
PRODUCTION OF WRITINGS,
private, how obtained 559-563
(See Private Wkitings.)
PROMISSORY NOTE,
parties to, when competent to impeach it 383-385
{See Witnesses.)
PROOF,
defined 1
PROPERTY,
when presumed from possession 34
PROSECUTOR,
when competent as a witness 362
PUBLICATION,
of libel by agent, when principal liable for 36, 234
PUBLIC BOOKS,
contents provable by copy 91
(See Public Records and Documents.)
PUBLIC AND GENERAL INTEREST, {See Heaesat.)
PUBLIC RECORDS AND DOCUMENTS,
inspection of records of superior courts 471, 472
of inferior courts 473
of corporation books 474
INDEX. 661
Section
PUBLIC RECORDS AND DOCVMEl^TS — Continued.
inspection of records of books of public offices . . . 475, 47fi
■when an action is pending 477
when not 478
proof 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
official registers, &c., character of these books . . 485, 496
proper repository 142, 485
who may give copies 485
foreign laws 486, 487, 488, 488 a
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
navy office registers 493
prison calendars 493
assessment books 493
municipal corporation books . . 493
private corporation books . . . 493
registry of vessels 494
log-book 495
what is an official register 484, 495, 496
public histories, how far ad-
mitted 497
official certificates 498
PUNISHMENT,
endurance of, whether it restores competency 378, n.
VOL. I. 56
662 INDEX.
Sectios
QUAKERS,
judicial affirmation by • • 371
QUALIFICATION,
by degree, when proof of dispensed with 195, n.
by license, must be shown by party licensed 78, 79
QUANTITY AND QUALITY,
whether material 61
QUO WARRANTO,
judgment of ouster in, conclusive against sub-officers un-
der the ousted incumbent 536
E.
RAPE,
wife competent to prove 343
RATED INHABITANTS, (-See Inhabitants.)
admissions by 175, 331
REALTY,
what is 271
RECEIPT,
effect of, as an admission 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, w.
RECITALS,
in deeds, when conclusive 24, 25, 26, 211
when evidence of pedigree 104
RECOGNIZANCE. {See Witnesses.)
RECORDS,
variance in the proof of, when pleaded 70
public, provable by copy 91
inspection of 471—478
{See Records and Judicial Writings.)
RECORDS AND JUDICIAL WRITINGS,
proof of 601-521
by copies, three kinds of 501
by exemplilioation, and what 501
by production of the record 502
when obtained by certiorari 502
by copy under seal 503
INDEX. 663
Section
RECOEDS AND JUDICIAL WRITINGS— Gontinued.
proof of records of sister States of the United States . 504-506
by office copy 607
by examined copy 508
when lost 509
proof of verdicts 610
decrees in chancery 610, 611
answers in chancery 512
judgments of inferior courts 513
foreign judgments 514
foreign documents 514 a
inquisitions post mortem, and other private offices . . 615
depositions in chancery 516
depositions taken under commission 517
wills and testaments 518
letters of administration 619
examination of prisoners 520
writs 621
admissibility and eifect of these records 522-656
general principles 522
who are parties, privies, and strangers . . . 523, 536
mutuality required, in order to bind 524
except cases in rem 526
cases of custom, &c 626
when offered for collateral
purposes 627, 527 a
or as solenrn admissions . . 627 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, 531 a
to be conclusive, must relate to the same property
or transaction 532
effect of former recovery in tort, without satis-
faction ._ 533
sufficient, if the point was essential to the former
finding 534
judgment in criminal case, why not admissible in
a civil action 637
judgment, for what purposes always admissible 538, 639
foreign judgments, jurisdiction of court to be shown 640
664 INDEX.
Sectiok
RECORDS AND JUDICIAL WRITINGS — Continued.
in rem, conclusive . . . 540, 642
how far conclusive as to inci-
dental matters 643
as to personal status, marriage,
and divorce 644, 545
executors and administrators . . 544
decisions of highest judicial tribunal of foreign
country conclusive 546 b
judgment of foreign court conclusive inter partes,
when 546 d
fbreign decrees operating in rem 646 e
effect of defendant becoming party to proceedings 546/
requisites to a plea of foreign judgment in bar . 646 g
foreign judgments in personam, their effect . • . 646-549
judgments of sister States of the United States . . 548
citizenship jiot material, as to the effect of foreign
judgments 549
admissibility and effect —
of decrees of courts of probate
or ecclesiastical courts .... 650
of chancery decrees 561
answers 651
demurrers 551
pleas ,. 551
of depositions 562
of foreign depositions 652
of verdicts and depositions to prove
matters of reputation 556
of inquisitions 556
of mutuality, as to depositions 663
whether cross-examination is essential to their admissi-
bUity 553, 554
RE-EXAMINATION,
of witnesses 467, 468
• {See Witnesses.)
REGISTER,
official, nature and proof of ... . 483, 484, 485, 493, 496, 497
parish 493
bishop's 474, 484
ship's 494
foreign chapel 493, n.
INDEX. 665
Section
REGISTER— Oontinued.
fleet . . . '. 493, n.
(See Public Records and Documents.)
REGISTRY,
proper custody, when 142, 485
RELATIONSHIP,
of declarant, necessary in proof of pedigree, when 103, 104, 134
RELEASE,
competency of witness restored by, when 426, 430
(See Witnesses.)
RELIGIOUS PRINCIPLE AND BELIEF.
what necessary to competency of witness .... 368-372
(See Witnesses.)
RENT,
presumption from payment of 38
REPLEVIN,
surety in, how rendered competent 392, n.
REPUTATION,
of witnesses 101, 461
(See Heaesat. Witnesses.)
evidence of, when proved by verdict 139
RUS GESTJE,
what 108, 109, 111, 114
(See Hearsay.)
RESIGNATION,
of corporator restores competency 430
RESOLUTIONS,
legislative : . 479
at public meetings may be proved by parol 90
REWARD,
title to, does not render incompetent 412, 414
S.
SALE,
when to be proved only by writing 261, 267
(See Writing.)
SANITY,
whether letters to the party admissible to prove .... 101, n.
opinions of physicians admissible as to 440
SCRIVENER.
communications to, whether privileged 244
5f.«-
666 INDEX.
Sbchon
SEALS,
of foreign nations, judicially noticed . . ' 4
of admiralty courts 5
of courts, when judicially noticed 4, 5, 6, 503
of corporations, wliether to be proved, after tHrty years . . 570
{See Public Eecords and Documents. Eecoeds and
Judicial Writings.)
SEARCH,
for private writings lost 558
for subscribing witnesses 574
{See Private Writings.)
SECONDARY EVIDENCE,
whether degrees in 84, n.
when admissible 84, 509, 560, 575
SECRETARY OF STATE,
when his certificate admissible 479
SECRETS OF STATE,
privileged 250-252
SENTENCE,
of foreign courts, when conclusive 543—547
{See Records and Judicial Writings.)
SERVANT,
when competent as a witness for master 416
{See Witness.)
SERVICE,
of notice to quit, proved by entry by decea^d attorney . . 116
to produce papers 561
SHERIFF,
admissions of deputy, evidence against 180 '
of indemnifying creditor admissible 180
SHIPS,
grand bill of sale requisite, on sale of 261
SHOP BOOKS,
when and how far admissible in evidence 117—119
SLANDER,
who is to begin, in action of 76
SOLICITOR, {See AxTORNEir. Privileged Communications.)
SPIES, {See -Accomplices.)
SPOLIATION,
of papers, fraudulent, effect of . 31
difference between, and alteration 566, 568
STAMP, (^ee Memorandum.) . . 436
INDEX. 667
Section
STAIUTE OF FRAUDS 262-274
(See Writings.)
STATUTES,
public, proof of 480
of sister States 489-491
private 480
{See Public Records and Documents.)
STEWARD,
entries by 147, 155
(See Hbaesat.)
STOCK,
transfer of, proved by bank-books 484
(See Public Reooeds and Documents. Corporations.)
SUBP(ENA,
to procure attendance of witnesses 309
{See Witnesses.)
SUBSCRIBING WITNESS,
{See Attesting Witness. Private Writings.)
SUBSTANCE OF ISSUE,
proof of, sufficient 56-73
what in libels and written instruments 58
in prescriptions 68, 71
in allegations modo et forma 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.)
SURETY,
how rendered a competent witness for principal .... 430
{See Witnesses.)
SURGEON, •
confidential communications to, not privileged . . . . 247,248
SURPLUSAGE,
what 51
SURRENDER,
when writing necessary 265
SURVIVORSHIP,
not presumed, when both perish in the same calamity . . 29, 30
668 INDEX.
T.
Section
TENANT,
estopped to deny title of landlord, when .... .25
TKRRIER,
what, and when admissible . 484, 496
TIME,
when not material 56, 61,. 62
TOMBSTONE,
inscription on, provable by parol 94, 105
TREASON,
what amount of evidence necessary to prove .... 255, 256
A\'ife incompetent to prove, against husband 345
confession of guilt in, its effect 234, 235
TRESPASS,
defendant in, when admissible for co-defendant . . . 357, 359
TRIAL,
when put off, on account of absent witnesses 320
for religious instruction of witness 367
{See Witnesses.)
TROVER,
whether barred by prior judgment in trespass 533
(See Recokds and Judicial Writings.)
TRUSTS,
to be [iroved by writing 266
except resulting truslJ 266
resulting, when they arise 266
TRUSTEE,
when competent as a witness .... .... 333, 409
U.
UNCERTAINTY,
what 298, 300
UNDERSTANDING,
not presumed in persons deaf and dumb 366
UNDERTAKING,
to release, its effect on competency 420
UNDERWRITER,
party to a consolidation rule, incompetent 895
who has paid loss, to be repaid on plaintiff's success, incom-
petent .... 392
INDEX. 669
Section
UJSTDERWRITEE— Continued.
opinions of, when not admissible .... 441
UNITED STATES,
laws of, how proved, inter sese 489, 490
judgments of courts of 548
(See Public Records and Documents. Records and Judicial
Proceedings.)
USAGE,
admissibility and effect of, to effect written contracts . 292-294
(See Parol Evidence.)
V.
VARIANCE,
nature of 63, 64-73
in criminal prosecutions 65
in the proof of a contract 66
consideration 68
deeds : . . . . 69
when literal agreement in proof not necessary 69
in the name of obligor 69, re.
in the proof of records 70
prescriptions 71, 72
fatal consequences of, how avoided 73
(See Description. Substance of the Issue.)
V^ERDICT, ,
inter alios, evidence of what 139, 538, 555
separate, when allowed 358, 363
VIDELICET,
its nature and office 60
when it will avoid a variance 60
VOIR DIRE,
what 424
(See Witnesses.)
W.
WAY, (See Highway.)
WIDOW,
incompetent to testify to admissions by deceased husband . . 337
(See Husband and Wipe. Privileged Communications.)
WILL,
how to be executed .... 272
6T0 INDEX.
Sectiok
WILL — Continued.
how to be revoked 272
cancellation of, what .... 273
admissibility of parol evidence to explain, &c. . . . 287-291
{See Parol Evidence.)
Mr. Wigram's rules of interpretation .... . 287. n.
general conclusions 291, n.
proof of ,440, 518
effect of the probate of 550
WITNESSES,
how many necessary to establish treason . ... 255, 256
perjury 257-260
to overthrow an answer in chancery . 260
how to procure attendance of 309-324
by subpoena 309
subpoena duces tecum 309
tender of fees 310, 311
not in criminal cases . . 311
habeas corpus ad testificandum .. . . . 312
recognizance 818
subpoena, when served 314
how served 815
how and when protected from arrest 316
discharged from unlawful arrest 318
neglecting or refusing to appear, how compelled 319
residing abroad, depositions taken under letters rogatory . . 820
sick, depositions taken by commission, when 820
depositions of, when and how taken 3:.' 1-324
171 perpetuam rei memoriani 324, 325
coiupetency of 327-430
to be sworn. Oath, its nature 328
competency of parties 327, 830
attorneys 364, 886
quasi corporators 331
private corporators 332, 338
members of charitable corporations .... 333
husband and wife 834-836
time of marriage not material . . . 336
rule operates after divorce or
death of one . . 387
exception 388
rule applies only to legal marriages . 330
INDEX. 671
Section
WITNESSES— Oontinued.
how aiFected by husband's consent 340
applies, wherever he is interested 341
competent in collateral proceedings . 342
exceptions in favor of wife . . 342-345
competency of
husband and wife
rule extends to cases of treason, semb. . . 345
dying declarations 346
parties nominal, when incompetent 347
parties, when competent 348, 353, 558
from necessity 348-350
from public policy 350
answer in chancery admissible 351
oath given diverso intuitu, admissible . . . 352
never compellable to testify 353
one of several not admissible for the ad-
verse 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 . . . 362
as to defendants . . . 363
judge, when incompetent 364
juror competent 864, n.
as to competency of persons deficient in understanding . 365-367
persons insane 365
cause and permanency immaterial . . . 365
persons deaf and dumb 366
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
672 INDEX.
Section
WITNESSES — Continued.
what crimes render infamous 373
extent of the disability 374
must be proved by record of the judgment .... 376
exceptions to this rule of incompetency 374
foreign judgment of infamy goes only to the credit . 876
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 im-
peach it 383-385
interested in the result, generally incompetent . . . 386-430
nature of the interest, direct and legal, &c. . . 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, 896
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 ... 41 1-420
1. witness entitled to reward, or rather benefit on
conviction 412-414
2. party whose name is forged 414
INDEX. 673
Section
WITNESSES— Continued.
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 bis interest 419
7. amply secured against liability over . . • . . . . 420
objection of incompetency, when to be taken .... 421, 422
how, if subsequently discovered . . . 421
arising from witness's own examina-
tion may be removed in same manner 422
from interest, how proved . . . 423, 424
to be determined by the court alone .... 426
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 oiF 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-examination, what .... 433
leading questions, what 434, 434 a
when permitted .... 43.5
when witness may refer to writings to as-
sist his memory 4 S6-437
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 person-
ally known 440
when opinions admissible 440, 440 a
when not 441
witness not to be impeached by party
calling him 442
toij. 1. 57
674 INDEX.
Seotios
WITNESSES— Continued.
examination of, 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
whether compellable to answer 451-460
to expose him, —
1. to a criminal charge .... 451
when he testifies to part of
a transaction without claim-
ing his privilege . . . 451 a
2. to pecuniary loss 452
3. to forfeiture of estate .... 453
4. to disgrace 454, 455
where it only tends to disgrace him . . . 456
impertinent questions on cross-examina-
tion 456 a
where it shows a previous conviction . . 457
to questions showing disgrace, but not
affecting 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 .... 469
how to be cross-examined as to contents
of writings 463-466
re-examination of 467, 468
INDEX. 675
Seoiion
WITNESSES— Oontinued.
when evidence of general character admissible in sup-
port of 469
order of proof and course of trial 469 a
deceased, proof of former testimony - 163-167
WRIT,
how proved 521
WRITING,
when requisite as evidence of title
on sale of ships {See Ships.) 261
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 soods . . . 267
sufficient, if contract is made out from
several writings 268
agent's authority need not be in writ-
ing 269
unless to make a deed . . . . 269
the term interest in land expounded 270, 271
devise must Joe in writing 272
how to be executed 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, &c.
{See Pakol Evidence.)
public
{See Public Documents. Records and Judicial "Writings.;
written evidence, different kinds of 470
private ('S«« Private Writings.)
Cambridge : Press of John Wilson & Son.
KF 8935 G8I 1866 c.l
Author Vol.
Greenleaf, Simon v.l
Title Copy
Treatise on Law of Evidence c.l-
1
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