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Full text of "A treatise on the law of evidence. Volume I"

C' I 




(flnrtiFll ICam i»rljnnl Hihtatji 




Cornell University 
Library 



The original of tiiis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924020130153 



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 


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 enti tled. 
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 ..uresumptiQ n ^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 o f innocence is so 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 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 th e 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, 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, 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, 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, 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 questi