(JortiFll Ham Btl^oal Kihrara
CORNELL UNIVERSITY LIBRARY
3 1924 062 470 061
Cornell University
Library
The original of tliis book is in
tlie Cornell University Library.
There are no known copyright restrictions in
the United States on the use of the text.
http://www.archive.org/details/cu31924062470061
A COMMENTARY
ON THE
LAW OF EVIDENCE
EST CIVIL ISSUES.
BT
FRANCIS WHARTON, LL.D.,
AUTHOR OP TREATISES ON OONPLICT OP LAWS, MEDICAL JDRI3PRUBBKCE, NEOLIQENOE,
AGENCY, AND CRIMINAL LAW.
IN TWO VOLUJrfES.
VOLUME II.
PHILADELPHIA:
KAY AND BEOTHER 17 AND 19 SOUTH SIXTH STREET,
Ea&j 3&aa%gtUtxS, puili^ScrS, antf importers.
1877.
Entered, according to Act o£ Congress, in the year 1877, by
FRANCIS "WHARTON",
In tlie OfQce of the Librarian of Congress at Washington'.
nivsnsiDB, cambbibcie:
PBIETTfiD DT H* 0. HOUOHTON AND OOMPANT.
BOOK 11.
MODE OF EE0EIVI1^^G PEOOF.
(CONTINUED.)
CHAPTER X.
JUDGMENTS AND JUDICIAL RECORDS.
[. BiNDiNQ Effect of Judgments.
Judgment on same subject matter
binds, § 758.
But only conclusively as to par-
ties and privies, § 760.
Parties comprise all who when
summoned are competent to
come in and take part in case,
§763.
Judgment need not be specially
pleaded, § 765.
Judgment against representative
binds principal, § 766.
Infant barred by proceedings in his
name, § 767.
Married woman not usually bound by
judgment, § 768.
Judgment against predecessor binds
successor, § 769.
Not so as to principal and surety,
§770.
Kor does judgment against executor
bind heir, § 771.
Judgment against one joint contractor
binds the other, § 772.
But not so as to tort-feasors, § 773.
Chancery will not collaterally review
judgments of courts of law, § 774.
Nor courts of law, decrees of chan-
cery, § 775.
Criminal and civil prosecutions cannot
thus control each other, § 776.
Military courts may make final rul-
ings, § 778.
Variation of form of suit does not
affect principal, § 779.
VOL. II.
II.
Nor does nominal variation of par-
ties, § 780.
Judgment, to be a bar, must have been
on the merits, § 781.
Purely technical judgment no bar ;
effect of demurrers, § 782.
Judgment by consent a bar, § 783.
Point once judicially settled cannot be
impeached collaterally, § 784.
Parol evidence admissible to identify
or to distinguish, § 785.
Judgment not an estoppel when evi-
dence is necessarily different, § 786.
When evidence in second case is
enough to have secured judgment
in first, then first judgment is a
bar, § 787.
Party not precluded from suing on
claim which he does not present,§ 788.
Defendant omitting to prove payment
or other claim as a set oS, cannot af-
terward sue for such payment, § 789 .
Judgment on successive or recurring
claims not exhaustive, § 792.
Judgment not conclusive as to collat-
eral points, § 793.
Judgments as to public rights admis-
sible against strangers, § 794.
Wheh Judgment mat be im-
peached.
Judgment may be collaterally im-
peached for want of jurisdiction,
§795.
So for fraud, § 797.
But not for minor irregularities,
§799.
1
§ T58.]
THE LAW OF EVIDKNCK.
[book II.
III. Awards.
Awards have the force of judgments,
§800.
IV. Jddgments of Foreign and Sister
States.
Foreign judgments in personam are
conclusive, § 801.
But impeachable for want of ju-
risdiction or fraud, § 803.
Jurisdiction is presumed if pro-
ceedings are regular, § 804.
Such judgments do not merge
debt, § 805.
Cannot be disputed collaterally,
§806.
Confederate judgments, effect of,
§807.
Judgment of sister states under the
federal Constitution are conclusive,
§ 808.
But may be avoided on proof of
fraud or non-jurisdiction, § 809.
V. Adminibtkation, Probate, and In-
quisition.
Letters of administration not conclu-
sive proof of death or other recitals,
§810.
Probate of will not conclusive as to
strangers, but otherwise as to par-
ties, § 811.
^ Inquisition of lunacy only primd facie
^ proof, § 812.
VI. Judgment as Protection to Judge.
Judgment a conclusive protection to
a judge, § 813.
VII. Judgments in rem.
Admiralty judgments good against
all the world, § 814.
And so as to judgments in rem, § 815.
Scope of judgments in rem, § 816.
Decrees as to personal status not nec-
essarily ubiquitous, § 817.
Judgments in rem do not bind in
personam, § 818.
VIII. Judgments viewed Evidentially.
Averments of record of former suit
admissible between same parties,
§819.
Records admissible evidentially
against strangers, § 820.
Record admissible to prove link in
title, § 821.
Other cases of admissibility,
§ 822.
Judgment admissible against stran-
gers to prove its legal effect,
§823.
To prove judgment as such, record
must be complete, § 824.
Minutes of court admissible to
prove action of court, § 825.
Docket entries not admissible when
full record can be had, § 826.
Eule relaxed as to ancient records,
§827.
For evidential purposes portions of
record may be admitted, § 828.
So may depositions and an-
swers in chancery § 828 a.
So may bankrupt assignments,
§829.
But such portions must be com-
plete, § 830.
Verdict inadmissible without rec-
ord, § 831.
Admissibility of part of record does
not involve that of all, § 832.
Parts of ancient records may be
received, § 833.
Officer's returns admissible,
§ 833 a.
Return of nulla bona admissible to
prove insolvency, § 834.
Bills of exception and review pro-
ceedings admissible, § 835.
IX. Records as Admissions.
Record may be received when
involving admission of party
against whom it is offered, § 836.
A party may be bound by his ad-
missions of record, § 837.
Pleadings may be received as ad-
missions, § 838.
But not as evidence as to third
parties, § 839.
A demurrer may be an admission,
§840.
Certificate of clerk admissible to
prove facts within his range,
§84L
I. BINDING EFFECT OF JUDGMENTS.
§758. A JUDGMENT 1 (by which is meant the final order or
decree of a court of competent jurisdiction on a matter duly
* Viewed as records, judgments fall dence, but for convenience are here
under the head of documentary evi- discussed in a separate chapter.
2
CHAP. X.] JUDGMENTS AND JUDICIAL EECOEDS. [§ 758.
submitted for its adjudication) may be offered in evi- judgment
dence, in a subsequent suit, for the following pur- subject*
poses: — '''°<*s-
1. As an admission., as which it may he offered hy a stranger
against the party making such admission. It is true, that,
strictly, we are not entitled to speak of the judgment of a
court as the admission of a party. But when a party asks
the judgment of a court, and to obtain such judgment makes a
particular statement, and the judgment is based on such state-
ment, then the court may be viewed as the agent of the party
making the statement, and the judgment of the court may be
imputed to the party as an admission. In this sense a penal
judgment against a party on the plea of guilty, may be put
in evidence against such party, in a civil suit by the party in-
jured ; 1 and a judgment against a party, based on a claim on
his part to possess certain goods, can be put iu evidence against
him, at the suit of a stranger, to show that he admitted posses-
sion of such goods.^
2. As evidence of its own existence, and of its effects, to prove
which it is admissible for and against strangers, as well as for and
against parties and privies. This relation of judgments will be
also hereafter considered more fully .^ We may at this point
cursorily illustrate it by suits of ejectment, in which judgments
Bonnier (following in this respect being heard, and disputing the case
Savigny) regards the authority of judg- of the other side. There is certainly
ments as based on contract : ' ' Cette this difference, that estoppels are
importante prdsomption (autorit^ de usually founded on the voluntary act
la chose jugee) se rattachant au fond of a party; whereas it is a praesumptio
du droit, autant qu'^ la preuve, les juris that ' judicium redditur in in-
rfegles, sur I'effet des jugements, c'est vitum.' Co. Litt. 248 b. Moreover,
h dire sur les personnes et sur les ob- when judgment has been obtained for
jets auxquels elle s'applique, reposent a debt, no other action can be main-
sur les m6mes bases que les rfegles sur tained upon it while the judgment is
I'effet des conventions. On I'a souvent in force, ' quia transit in rem judicar
dit avec raison judiciis conirdhimus." tam.' PoUex. 641. Like other estop-
Bonnier, Traits des Preuves, § 680. pels by matter of record and estoppels
Ml". Best thus speaks in part to this by deed, judgments, in order to have a
point, § 594: " Conclusive judgments conclusive effect, must be pleaded if
are a species of estoppels ; seeing that there be an opportunity, otherwise they
they are given in a matter in which are only cogent evidence for the jury."
the person against whom they are of- ' Infra, §§ 776, 838.
fered as evidence has had, either really * Infra, §§ 837-8.
or constructively, an opportunity of " See infra, §§ 822-4.
3
§ 758. j THE LAW OF EVIDENCE, [BOOK II.
forming part of a chain of title are admissible against strangers ; ^
by probate proceedings, which are in the same manner admissi-
ble to prove the title of the executor and administrator, though
not the death of the alleged decedent j^ and by suits by M.
against his servant S., in which it is admissible for M. to put in
evidence against S. a judgment against M., in favor of T.,
the cause of action by T. against M. being injuries sustained
by T. from S.'s negligence ; the judgment, however, being ad-
missible in the suit by M. against S., not to prove S.'s negli-
gence, but simply to prove that T. obtained and collected a
judgment against M.^ To aid in inferring the insolvency of L.,
also, judgments with returns of nulla bona against L. may be
put in evidence, even in suits against strangers.*
3. As to public rights, in respect to which a judgment is con-
clusive against all the world.^
4. As to private rights, in respect to which a judgment is con-
clusive, between parties and privies, of its essential conditions.
This is the distinctive attribute of judgments, and with this,
therefore, it is proper that our present discussion should begin.
To state the principle more fully, every judgment is conclusive,
between parties and privies, as to such facts in issue, upon which
the judgment is on its face conditioned, as were actually decided
by the court, unless it should appear that evidence was admitted
(or the converse) in the suit where the judgment was entered,
which evidence would have been excluded in the suit in which
the judgment was offered, or unless from some other reason the
proofs in the two suits are necessarily different.^ It is essential,
however, to the admissibility of the judgment in such case, that
it should have been between the parties (or their privies) to the
suit in which it is offered ; ^ that it should have been on the mer-
its,* and that it should have been on a claim actually before the
court.® Assuming these conditions to exist, a judgment in one
suit is conclusive in another suit of all the matters which the
judgment decides.^" A company, for instance, sues S. for unpaid
» Infra, § 821. 1 Infra, § 760.
* Infra, §§ 810-12. > Infra, § 783.
» See infra, § 823. » Infra, § 788.
* Infra, § 834. lo As general ruUngs to the final
* Infra, § 794. position ia the text, see Duchess of
* Infra, §§ 786-7. Kingston's case, 2 How. St. 588 ; Fer-
4
CHAP. X.]
JUDGMENTS: WHEN BINDING.
[§ 758.
premium and calls. Upon an issue directed for the purpose, S.
has a judgment in his favor on the ground that he is not a stock-
holder. The company being wound up in chancery, S. applies
for, the repayment of the sum he had paid for premium and calls.
In such case, the parties litigating cannot contest the decision
that he never was a stockholder, and that he is therefore entitled
to recover back the money paid by him by mistake.^ Again, it
becomes an essential condition to recovery in a suit that H.
and W. should have been married. Upon trial of this question,
the issue is found for the party setting up the marriage. The
marriage cannot afterwards be disputed between the same par-
ties, or their privies.^ A woman, also, who in proceedings in
divorce agrees to take a certain sum for alimony, which is ap-
proved by the court, and decreed accordingly, is estopped, if the
alimony be paid, and there be no fraud, from claiming dower as
against her former husband's vendees.^ Where a husband, also,
brings a libel for divorce, alleging the adultery of his wife, and
the libel is dismissed, the act of adultery not being proved, it
is held that as to the particular act of adultery attempted to
rers v. Arden, 6 Rep. 7 a; Sopwith v.
Sopwith, 2 Sw. &Tr. 160; Mattingly
V. Nye, 8 Wall. 370 ; Welsh v. Lindo,
1 Cranch C. C. 508 ; Janes v. Buz-
Ind. 51 ; Finney v. Boyd, 26 Wise.
366 ; Massey v. Lemon, 5 Ired. L. 557;
Dukes V. Broughton, 2 Speers, 620 ;
Davis V. Murphy, 2 Rich. (S. C.) 560;
zard, Hempst. 240; Sevey v. Chick, Newton ?'. White, 53 Ga. 395; Broth-
13 Me. 141; Dame v. Wingate, 12. N.
H. 291 ; Burton v. Wilkinson, 18 Vt.
186; Perkins u. Walker, 19 Vt. 144; v. Brame, 45 Ala. 262; OfEutt v.
ers I'. Higgins, 5 J. J. Marsh. 658;
Garrett v. Lyle, 27 Ala. 586 ; Cannon
Spencer v. Dearth, 43 Vt. 98 ; With-
ington V. Warren, 12 Mete. 114; Com.
V. Evans, 101 Mass. 25 ; Stockwell v.
Silloway, 113 Mass. 382; Lane v.
Cook, 3 Day, 255 ; French v. Neal, 24
Pick. 55 ; Lewis v. Lewis, 106 Mass.
309 ; Dewey v. Osburn, 4 Cow. 329 ;
Graves v. Joice, 5 Cow. 261 ; Lion v.
Burtis, 5 Cow. 408 ; Jackson v. Hoff-
man, 9 Cow. 271 ; Gates v. Preston, 41
N. Y. 113; Boerum v. Schenck,41 N.
Y. 182; Taylor v. Sindall, 34 Md. 38;
Preston v. Harvey, 2 Hen. & M. 55 ;
Beall V. Pearee, 12 Md. 565 ; Clagett
t). Easterday, 42 Md. 617; Haller v.
Pine, 8 Blackf. 1 75 ; Crosby v. Jerolo-
man, 37 Ind. 264 ; Maple v. Beach, 43
John, 8 Mo. 120; Shelbina v. Parker,
58 Mo. 327 ; Slocomb v. De Lizardi,
21 La. An. 355 ; Megerle v. Ashe, 33
Cal. 74; Geary v. Simmons, 39 Cal.
224; Harvey v. Ward, 49 Cal. 124;
Blake v. McKusick, 10 Minn. 251 ;
Ferguson v. Etter, 21 Ark. 160; At-
chison R. R. V. Commis. 12 Kans.
127.
1 Allison's case, L. R. 9 Ch. Ap. 24 ;
Stephen's Ev. § 41.
2 R. V. Hartington, 4 E. & B. 780.
See Flitters v. AUfrey, L. R. 10 C. P.
29.
» Hopper V. Hopper, 19 111. 219.
See Miltimore v. Miltimore, 40 Penn.
St. 151.
5
§ 760.] THE LAW OF EVIDENCE. [BOOK II.
be proved, the judgment of dismissal is conclusive in another
suit for divorce.^ A party to a decree of foreclosure, to proceed
to another line of illustration, no matter how slight his interest,
is afterwards estopped from questioning the title of the purchasers
under the decree of sale.^ Parties, also, claiming under a de-
fendant in execution, who was in actual possession of the land
at the time of the execution of the judgment, are estopped from
denying the title of the purchaser in the execution.^ To crim-
inal, as well as to civil judgments, does the rule apply.*
§ 759. As a general rule, " where the parties and the cause of
Burden in action are the same, the primd facie presumption is that
sue cases, ^j^^ questions presented for decision were the same, un-
less it appears that the merits of the controversy were not in-
volved in the issue ; the rule in such a case being, that where
every objection urged in the second trial was open to the party,
within the legitimate scope of the pleadings, in the first suit, and
might have been presented at that trial, the matter must be con-
sidered as having passed in rem judicatam, and the former judg-
ment in such a case is conclusive between the parties." ^
§ 760. On the other hand, a judgment inter partes cannot
estop persons not directly parties or privies. As to
elusive strangers, it may be used, as we have seen, to prove
parties and relevant facts which can be only shown by record ; but
privies. ^^ affect strangers, unless it be as to public rights, or in
rem, a judgment is ordinarily inadmissible.^
^ Lewis V. Lewis, 106 Mass. 309. Mass. 280 ; Bradford ti. Bradford, 5
^ Jackson v, Hoffman, 9 Cow. 271. Conn. 127 ; Branch v. Doane, 17
» Arnot V. Beadle, Hill & Den. Sup. Conn. 402 ; Matthews v. Duryee, 45
181. Barb. 69 ; Chew v. Brumagim, 21 N.
* Infra, § 783. J. Eq. 520 ; Rose v. Klinger, 8 Watts
s Clifford, J., Gould v. R. R. 91 &S. 178; Winter y. Newell, 49 Penn.
U. S. (1 Otto) 533 ; citing Outram v. St. 507 ; Kramph u. Hatz, 52 Penn.
Morewood, 3 East, 358 ; Greathead v. St. 525 ; Dement v. Stonestreet, 1 Md.
Bromley, 7 T. R. 455. 116; Chesapeake Co. v. Gittings, 36
« Petrie v. Nuttall, 11 Exch. 569 ; Md. 276 ; Frazier v. Frazier, 2 Leigh,
Priestley «. Fernie, 3 H. & C. 977; 642; Duncan i: Helms, 8 Grat. 68;
Aspden V. Nixon, 4 How. 467; Deery Thomas v. Bowman, 30 111. 84 ; Rog-
V. Cray, 5 Wall. 795; Kearney v. ers v. Higgins, 67 111. 244; Cox v.
Denn, 15 Wall. 51; Lawrence v. Strode, 4 Bibb, 4 ; Griffin u. Richard-
Haynes, 5 N. H. 33; King v. Chase, son, 11 Ired. L. 439; Howell i'. Gor-
15 N. H. 9; Buttrick v. Holden, 8 don, 40 Ga. 302; McLemore i'. Nuck-
Cush. 233; Tracy v. Merrill, 103 oils, 1 Ala. Sel. Ca. 591 ; De^elos
6
CHAP. X.]
JUDGMENTS : WHEN BINDING.
[§ 761.
§ 761. Of the principle now before us we may cite as an illus-
tration recent New York rulings, to the effect that the trustees
of a manufacturing corporation, organized under the act to au-
thorize the formation of corporations for manufacturing and other
purposes, are neither parties nor privies to a judgment against
the company ; and that consequently, when for any reason they
become liable to pay the debts of the company, and an action is
brought against them to enforce that liability, proof of the re-
covery of judgment against the company is neither conclusive nor
primd facie evidence of the debt as against the trustees.^ And
it has subsequently been broadly held in the same state, that a
judgment against a company is not e^en. primd facie evidence in
a subsequent action against a stockholder for the recovery of the
same debt.^
Y. 137.
criticis-
330, as
Y, 162.
a lucid
V. Woolfolk, 21 La. An. 706 ; Fallon
V. Murray, 16 Mo. 168 ; Cravens v.
Jameson, 59 Mo. 69 ; Phelan v. Gard-
ner, 43 Cal. 306 ; Karr v. Parks, 44
Cal. 46 ; Chant v. Reynolds, 49 Cal.
213. Infra, § 820.
1 Miller v. White, 50 N.
See opinion of Peckham, J.,
ing Marcy v. Clark, 1 7 Mass.
given under a special statute.
2 McMahon v. Macy, 51 N,
The following opinion gives
recapitulation of the New York au-
thorities on this vexed topic : —
" Whether a judgment against a
company is, in a separate action
against a stockholder for the recovery
of the same debt, evidence of the debt
sued upon, presents a question which
has been much litigated in this state,
and yet never decided in any of its
courts of last resort. As early as
1822, Spencer, Ch. J., as a member
of the court for the correction of er-
rors, without alluding to the fact that
the liability of stockholders, when
sued separately, was remote, and de-
pendent upon the contingency of the
ability of the creditor to collect his
debt by. execution against the com-
pany, or the relation of the stock-
holder, when thus sued, held that as
the debt against the company was also
a debt against the stockholder individ-
ually, and because the company itself
was concluded by the judgment, the
stockholder, when sued alone, was
equally concluded. Slee v. Bloom, 20
Johnson, 669, 684. This opinion was
afterward referred to with apparent
approbation in Moss v. Oakley, 2
Hill, 265, 267. The decision of the
question not being regarded as neces-
sary to the decision of the cases to
which I have referred, but simply as
the individual expression of a single
judge in each case, was again pre-
sented in Moss V. McCuUough, 5 Hill,
131; in which after a full review of
all the cases, and a discussion of the
principle involved by Justices Cowen
and Bronson, the court held, Nelson,
J., concurring, that a judgment against
the company was not, as against a
stockholder when sued separately for
the same debt, even prima facie evi-
dence of the debt sued upon. The
case went back and was retried, and
upon the same facts appearing, the
plaintiff was nonsuited. Then, after
the change wrought in our judicial
system by the Constitution of 1846,
7
§ 762.]
THE LAW OF EVIDENCE.
[ BOOK II.
§ 762. The Roman law is emphatic to the sarhe effect. No
judgment is a bar which is res inter alios acta. " Inter alios res
gestas aliis non posse jpraejudicium facere, saepe constitutum est.
Unde licet quosdem de heredibus ejus, quem debitorem tuum
fuisse significas, solvisse commemores, tamen ceteri non alias ad
solutionem urgentur, nisi debitum probatum fuerit." ^ A party
in favor of whom a kindred issue has been determined cannot,
if the issue be res inter alios acta, even introduce as evidence the
judgment in such case, though he is not precluded from intro-
ducing, if relevant, the evidence on which such judgment was
the same case was brought before the
general term of the Fourth Judicial
District, where a motion for a new
trial prevailed; the court holding,
among other things, that the judg-
ment against the company was, in a
jseparate action against the stockhold-
lers, prima, facie evidence of the debt
sued upon. 7 Barbour, 279, 296.
Whether a new trial was had, or
what was the ultimate disposition of
the case, does not appear from the
reports. The question continuing to
be unsettled, came up in the court of
appeals in March, 1860. Belmont v.
Coleman, 21 N. Y. 96. So far as ap-
; pears from the report of that case,
seven only of the eight judges, of
I which it was then composed, were
present. Other questions were in-
volved. Bacon, J., who delivered the
opinion of the court, held that the
judgment against the company was in
a suit against a stockholder for the
same debt, prima facie evidence of
the debt. In this view two of his as-
sociates concurred, and four ' refused
to commit themselves to the doctrine
that a judgment against the corporation
was even prima facie evidence against
a stockholder' (Ibid. 102), and the case
was disposed of upon other grounds.
In July, 1861, the question was again
presented to the supreme court, of
which Justice Bacon was at the time
the presiding justice; and it was then,
8
by the unanimous judgment of the
court, held that a judgment against
the company was not even prima facie
evidence in a suit against a stockholder
for the recovery of the same debt.
Strong V. Wheaton, 38 Barb. 616, 621.
If, therefore, the defendant is not
sustained by the weight of authority,
he is certainly not so prejudiced by
adjudged cases as to prevent the ques-
tion presented from being considered
as if it was now presented for the first
time If the judgment is
even prima facie evidence, not hav-
ing been made so by statute, I am un-
able to understand why it is not, like
a judgment in any other case, conclu-
sive. But assume it to be prima facie
evidence of what it contains, leave
the defendant to show that the plain-
tiff was not, in law, entitled to such
recovery, and the judgment itself, as
stated in the report of the referee,
being for an inseparable part of its
amount for labor and services, not
performed by the plaintiff himself,
furnished, as the court of appeals have
held (Atchison v. Troy & Boston
R. R. Co. 5 Abbott Sp. T. Rep. 329),
a valid objection to the recovery, had
the defendant had his day in court
to make it, and hence the judirment
should be reversed." Gray, C, Mc-
Mahon v. Macy, 51 N. Y. 162, 16S.
1 L. 1, C. Inter alios acta vel jud.
aliis.
CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 763.
rested. Weber,^ an authoritative German commentator, gives
from the Roman law the following illustrations of this topic :
A. sues B. for a chattel, and has a judgment rendered in his
favor ; this judgment is not evidence in a suit by A. against
C. for the same chattel. A. brings suit against B. civilly for
damages inflicted on A. by B.'s criminal act; a judgment ob-
tained in A.'s favor is not evidence against B., in a criminal pros-
ecution brought by the state against B. for the same crime. A
husband is divorced from his wife on the ground of his adultery ;
but the record of the divorce is not admissible against him in a
criminal prosecution for the same offence. The Roman law rec-
ognizes an exception, however, in cases where status is litigated.
A person in whose favor a bond fide litigation as to status is in-
telligently adjudicated, may avail himself of this judgment in a
suit against others in which the same question is involved.^ By
the same law, a judgment binds all those claiming under the
original parties, as well as the parties themselves.^
§ 763. It has been ruled in this country that a party, if bound
at all, is only primd facie bound by a judgment taken Parties
against him in a suit in which he is summoned but not au'wh"^
brought into court.* "Where, however, there is full ^oned'™'
opportunity, by notice or otherwise, to come in and to competent
^J^ ^-f ^ *J ' to come in
adduce evidence and cross-examine, then the judgment and take
1 11 , . , . . part in
IS a bar, even when the persons having this opportunity ^case.
are not parties to the record.^ Nor can it be objected that the
former action was between other parties, when the person mak-
ing the objection was one of such parties, though in connection
with other persons.^ The same burden is imposed on all persons
intervening in a suit.^ But while a verdict and conviction for
» Weber, Heffter's ed. 32. Littleton v. Richardson, 34 N. H. 179
2 L. 25, D. de statu hominum; L. Boston w. Worthington, 10 Gray, 496
1, § fin. ; L. 2; L. 3, pr. D. de agnos. Chamberlain v. Preble, 11 Allen, 370
et alend. See infra, § 817. Stoddard v. Thompson, 31 Iowa, 80
« Weber, Heffter's ed. 34. Shelton v. Brown, 22 La. An. 162
* Taylor v. Pettibone, 16 Johns. R. Guidry v. Jeanneaud, 25 La. An. 634
66 ; Miller v. Pennington, 2 Stew. Harvie v. Turner, 46 Mo. 444 ; Love
(Ala.) 399. V. Gibson, 2 Fla. 598.
* Bigelow on Estoppel, 2d ed. 47 ; ' Larum v. Wilmer, 35 Iowa, 244.
Smith V. Crompton, 3 B. & Ad. 407 ; ' Markham v. O'Connor, 23 La. An.
Swartwout v. Payne, 19 Johns. 294; 688.
9
§ 764.] THE LAW OF EVIDENCE. [BOOK II.
non-repair of a highway estops the convicted party or parish
from disputing subsequently liability to repair the highway,^
a conviction for obstructing a highway does not estop the con-
victed person from maintaining trespass against a prosecutor in
respect of the same highway ; for the proceedings are not be-
tween the same parties in respect of the same right.^
§ 764. It is true that a more extended liability was at one
time maintained in the English courts. Thus in a case subse-
quently much discussed, the plaintifE, in an action against a ser-
vant of C, for penalties for fishing in the plaintiff's fishery, rested
exclusively on a verdict and judgment obtained by him against
another servant of C, in an action for a trespass committed on
the same fishery. The servants, in both actions, justified by set-
ting up their master's right to the fishery. The right to the
fishery, therefore, was in both cases at issue. The judge trying
the case admitted the record, and ruled it to be conclusive. A
new trial, however, was granted, on the ground that the judgment,
though primd facie proof, was not conclusive ; ^ and the case has
since been cited as authority for the position that when the
parties are really the same a judgment may be put in evidence.*
But we cannot hold, in a case where A. and B., servants of C,
are successively sued for trespasses committed by them, in exer-
cise of an alleged right of their common master, that they are
really so identical that the one must necessarily have the same
defence as the other, and that the appearance of the one is to be
therefore regarded as constructively that of the other. Hence
it is we can well understand how Lord EUenborough should
have repudiated the idea that a judgment in a suit against one
servant should be received to affect the trial of a suit against
another.^
The test is, the right and opportunity as well as duty to come
in and take a part in the case in which the judgment is entered.
Where there is no such opportunity (e. g. where a person sui
' R. V. Haughton, 1 E. & B. 501. ^ Outram v. Morewood, 3 East, S6fi.
^ Potrie V. Nuttall, 1 1 Ex. 569 ; To the same effect, see King v. Chase,
Powell's Evidence, 4th ed. 233. 15 N. H. 9; and see Branch v. Doane,
' Kinnorsley v. Orpe, 2 Doug. 514. 17 Conn. 402; Case v. Keeve, 14 John.
* Simpson v. Pickering, 1 C, M. & 81 ; Alexander v, Taylor, 4 Denio,
R. 529. 802.
10
CHAP. X.J
JUDGMENTS : WHEN BINDING.
[§ 765.
juris is made a party to a suit without his authority or knowl-
edge"), then a judgment so obtained may be set aside, and if col-
lusively obtained, may be collaterally impeached.-'
§ 765. The estoppel of a judgment, so it has been held in
England, is . not technically a bar unless pleaded ; ^ and judgment
so has it been frequently held in the United States.^ °pe£"S'y''*
At the same time, as is stated by Mr. Stephen,* " if a P'sade"!-
judgment is not pleaded by way of estoppel, it is as between
parties and privies a relevant fact, whenever any matter which
was or might have been decided in the action in which it is given
is in issue, or relevant to the issue, in any subsequent action.
Such a judgment is conclusive proof of the facts which it decides,
or might have decided, if the party who gives evidence of it had
no opportunity of pleading it as an estoppel." ®
^ See infra, § 797; Bayley v. Buck-
land, 1 Exch. R. 1 ; Thaeheru. D'Ag-
uilar, 11 Exch. R. 436; Reynolds v.
Howell, L. R. 8 Q. B. 398 ; Hubbart
V. Phillips, 13 M. & W. 703 ; Beekley
V. Newcomb, 24 N. H. 359; Jackson
V. Stewart, 6 Johns. 34 ; Hayes v.
Shattuck, 21 Cal. 51; Bank Com. u.
Bank, 6 Paige, 497.
2 Vooght V. Winch, 2 Barn. & A.
602.
' Smith's Leading Cases, Am. ed.
note to Duchess of Kingston's case;
Brazill v. Ishani, 2 Ker. 9 ; Denny v.
Smith, 18 N. Y. 567 ; Krekeler v. Bit-
ter, 62 N. Y. 374.
* Evidence, 51.
6 Citing Vooght v. Winch, 2 B. &
A. 662; Feversham v. Emerson, 11
Ex. 391; Whittaker w. Jackson, 2 H.
& C. 926. See, also. Clink v. Thurs-
ton, 47 Cal. 21.
To the same effect is a ruling of the
New York court of appeals in 1876:
" The record of the superior court was
not offered or received in evidence
in bar of the action, but merely as evi-
dence of the fact in issue. Had it
been offered as constituting a bar, or
as an estoppel to the action, it would
have been inadmissible, not having
been pleaded as a defence. Brazill v.
Isham, 2 Ker. 9, per Denio, J.; Denny
V. Smith, 18 N. Y. 567. But as evi-
dence of a fact in issue it was com-
petent, although not pleaded like any
other evidence, whether documentary
or oral. A party is never required to
disclose his evidence by his pleadings.
The evidence was competent to dis-
prove a material allegation of the
complaint traversed by the answer.
No evidence was conclusive as an
adjudication of the same fact in an ac-
tion between the same parties. Wright
v. Butler, 6 Wend. 284 ; Lawrence v.
Hunt, 10 Ibid. 81 ; Embury u. Conner,
3 Comst. 51 1 ; Gardner a. Buckbee, 3
Cow. 120. The court properly held
that ' the matter adjudicated between
the parties in another action might be
given in evidence.' " Allen, J., Kre-
keler V. Bitter, 62 N. Y. 374.
So, in a prior case, it is said :
" It has been held in some cases
that a judgment is only prima facie
when it is not pleaded where it might
have been ; that the party has thus
■waived it as an estoppel. The better
opinion is the other way, in reason
and authority. 1 Greenl. Ev. 522-538,
inclusive, and cases cited. In the case
11
§ 768.] THE LAW OF EVIDENCE. , [BOOK II.
§ 766. Where a party is sued merely as the representative of
A jadg- another, and that other has notice to come in, the pro-
^ainst ceedings being in good faith, then the principal is bound
tive bTmis" ^J *^® judgment against the representative. Thus a
principal, judgment (whether by default or by verdict) against
the casual ejector, in the old proceedings in ejectment, was ad-
missible in any subsequent suit, involving virtually the same
parties and interests.^ So a cestui que trust is bound, at least
primd facie, by a judgment against his trustee.^ On the same
reasoning the principal in whose right a defendant in replevin
has made cognizance has been held bound by the judgment in
such suit.^ But a judgment against a representative, as a repre-
sentative, does not ordinarily preclude him from disputing the
matters decided, when sued or suing in his own right.*
§ 767. An infant, suing by his guardian or prochein amy, is
subjected to the same incidents as if he were suing in
barred by his own right ; and if he brings a second suit on the
ingsinhis same subject matter, he is barred by a judgment en-
name, tered in the first. In such case it is not necessary to
show that the first suit was instituted with his knowledge, even
though he himself had reached almost to the period of majority.^
A judgment against an infant, without a guardian, being primd
fade valid, though voidable, has been held to be not open to
collateral impeachment.®
§ 768. A judgment against a married woman, having no stat-
at bar, the judgment is pleaded. Bank ' Hancock v. Welsh, 1 Stark. E.
V. Mas, 4 Eng. Law & Eq. 2S2." 347.
Peckham, J., Miller v. White, 50 N. * Fenwick v. Thornton, Moody &
y. 143. M. 51; Legge v. Edmonds, 25 L. J.
1 Taylor's Evidence, § 1500, citing Ch. 125 ; Wheeler v. Ruckman, 1
Doe V. Huddart, 2 C, M. & R. 316; Robt. (N. Y.) 408; but see Peddi-
Wright V. Tatham, 1 A. & E. 19; cord ». Hill,4 T. B. Monr. 370.
Matthew v. Osborne, 13 C. B. 916; ^ Morgan v. Thorne, 7 M. 8e W.
Doe V. Challis, 17 Q. B. 166; Steele 400.
V. Lineberger, 59 Penn. St. 308 ; ° Marshall «. Fisher, 1 Jones (N.
Southfern Bank v. Humphreys, 47 111. C.) L. Ill ; Hadley m. Pickett, 25lnd.
227. 450; Blake v. Douglass, 27 Ind. 416;
'^ Rogers V. Haines, 3 Greenl. 362; Porter v. Robinson, 3 A. K. Marsh.
Van Veehten v. Terry, 2 Johns. Ch. 253 ; Beeler i;. Bullitt, 3 A. K. Marsh.
197; Willink v. Canal Co. 3 Green's 280; though see Whitney «. Porter,
Ch. 377; Johnson v. Robertson, 31 23 111. 445 ; and see comments in
Md. 476. Bigelow on Estoppel, 2d ed. 49.
12
CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 770.
utory power to sue or be sued, cannot, it is said, prejudice her,
when such judgment is on a contract.^ It is otherwise j^^
as to judgments on torts.* It is clear that the record against
of a judgment against a husband is not admissible woman
against the wife, under a bill filed in the name of hus- nuiut/.*
band and wife, concerning her separate estate.^
§ 769. We will elsewhere notice* the cases in which parties
are affected by the admissions of those whose estates , ,
i_ 1 TTTi 1 • Judgment
they take. Whoever takes an estate, takes it cum astopred-
onere ; and whatever binds the predecessor in title binds suo-
binds the successor.^ Thus an executor or administra- "^^^°'^-
tor is bound by a judgment against his decedent as to person-
alty.® A judgment against a grantor or mortgagor binds his
grantee or mortgagee ; ^ and an heir is bound or privileged by
a judgment against or for his ancestor.^ But a proceeding for
or against a tenant for life cannot thus affect the remainder-
man ; ^ nor can proceedings against a distributee affect an exec-
utor ; ^^ nor can those for or against a lessee affect the landlord.^^
§ 770. In the relation of guarantor and principal, of co-surety,
of principal and deputy, though a judgment against
the one is evidence against the other ,i^ there is no such to principal
privity as to prevent, even at common law, the setting
up fraud or collusion as against such judgment.^* In the ab-
1 Morse v. Toppan, 3 Gray, 411 ; Winslow v. Grindal, 2 Greenl. 64 ;
Griffith V. Clarke, 18 Md. 457 ; though Adams v. Barnes, 17 Mass. 365.
see Hartman v. Ogborn, 54 Penn. ' Lock v. Norborne, 3 Mod. 141 ;
St. 120, and Bigelow on Estoppel, 2d Whittaker u. Jackson, 2 H. & C.
ed. 48. 926; Gavin t>. Graydon, 41 Ind. 559.
2 Ibid.; Baxter v. Dear, 24 Tex. ' Taylor's Evidence, § 1505.
17. 1° Johnson v. Longmire, 39 Ala.
« Michan v. Wyatt, 21 Ala. 813. 143.
* Infra, § 1156. ii Wenman v. Mackenzie, 5 E. &
6 Adams v. Barnes, 17 Mass. 365 ; B. 447 ; Rees v. Walters, 3 M. & W.
Shufelt V. Shufelt, 9 Paige, 137; Var- 527.
ick V. Edwards, 11 Paige, 289 ; Nat. " Rapelyew. Prince, 4 Hill (N. Y.),
Bank V. Sprague, 21 N. J. Eq. 530 ; 119.
Griffith V. Griffith, 5 Har. (Del.) 5. " Pritchard v. Hitchcock, 6 Man. &
« R. V. Hebden, Andr. 389 ; Steele Gr. 151 ; Hill v. Morse, 61 Me. 541 ;
B. Lineberger, 59 Penn St! 308; Man- Heard v. Lodge, 20 Pick. 53; Bige-
igault V. Deas, 1 Bailey Eq. 283. low on Estoppel (2d ed.), 66-68, 81.
» Doe V. Derby, 1 A. & E. 790 ; See Beall v. Beck, 3 Harr. & M. 242;
R. V. Blakemore, 2 Den. C. C. 410 ; Giltinan v. Strong, 64 Penn. St. 242 ;
13
§ 772.] THE LAW OF EVIDENCE. [BOOK II.
sence, however, of proof of fraud, or collusion, a judgment against
the principal is conclusive evidence of the debt, both against
him and the surety.^
§ 771. A judgment against an executor, if it be primd facie,
„ ^ is not conclusive evidence in a suit against the heir, to
Nor does . • i i • > i j 9 o
judgment sub]ect to the judgment lands m the heir s hands.'' bo
executor in an administration suit, a judgment recovered against
'° *"^' executors, who were also trustees of the real estate, has
been held to be only primd facie evidence of a debt against the
persons interested in the real estate.^
§ 772. If A. and B. make a joint (as distinguished from a
Judgment joint and several) contract with C, and B. is sued to
againstone judgment, the judgment, though without satisfaction,
tractor a is a bar to a suit against A. by C. ;* the reason being
against the thjit the cause of action being indivisible, the lower se-
curity is merged in the higher.
It is otherwise, however, when the contract may be construed
as joint and several.* Nor is a judgment in favor of a joint con-
Thomas V. Hubbell, 15 N. Y. 405; Davies u. Lowndes, 1 Bing. N. C. 607;
Decker v. Judson, 16 N. Y. 439. See Brinsmead v. Harrison, L. R. 6 C. P.
Troy V. Troy E. R. 3 Lansing, 270. 584.
1 King V. Norman, 4 C. B. 884 ; « U. S. v. Price, 9 How. (U. S.)
Drummond v. Prestman, 12 Wheat. 83, as explaining Sheehy ». Mande-
516 ; Stovall v. Banks, 10 Wall. 583 ; ville, 6 Cranch, 253.
Way V. Lewis, 115 Mass. 26 ; Cutter Mr. Taylor, however, says that
V. Evans, Ibid. 27; Holley v. Acre, 23 where a plaintiff has joint and sev-
Ala. 603. eral remedies against several persons,
^ Moss V. McCullough, 5 Hill, 131; and has obtained judgment against
Wood V. Byington, 2 Barb. Ch. 392 ; one, he will certainly be estopped
Sharpe v. Freeman, 45 N. Y. 802; from proceeding against the others, if
see S. C. 2 Lansing, 171; Sergeant the damages have been received ; and
V. Ewing, 36 Penn. St. 156. See he will probably be estopped, even
Thayer v. HoUis, 3 Mete. (Mass.) though the Judgment has not been satis-
369 ; Bracken v. Neill, 15 Tex. 109. fied; for if the law were otherwise,
' Harvey w. Wild, L. R. 14 Eq. a plaintiff might recover damages
438 ; 41 L. J. Ch. 698. twice over for the same cause of ac-
* King V. Hoare, 13 M. & W. 494
Higgins, ex parte, 3 De Gex & J. 33
Ward V. Johnson, 13 Mass. 148
tion, which would be repugnant to
natural justice. Citing Buckland v.
Johnson, 15 Com. B. 145; Phillips v.
Gibbs V. Bryant, 1 Pick. 118 ; Rob- Ward, 2 H. & C. 717; Bird ti. Ran-
ertson U.Smith, 18 Johns. 459; Brown dall, 3 Burr. 1345, 1353; 1 W. Bl.
V. Johnson, 13 Grat. 644 ; Clinton 373, 387, S. C. ; recognized in
Bank 11. Hart, 6 Ohio St. 33 ; Pfau Cooper 0. Shepherd, 3 Com. B. 272 ;
V. Lorain, 1 Cincin. 73 ; though see King t>. Hoare, 13 M. & W. 496, 505,
14
CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 773.
tractor a bar to a suit against the other contractor, unless upon a
plea operating as a bar to both suits.^ Satisfaction from one
joint, or joint and several debtor, is of course a bar to a suit
against his fellow debtors.
§ 773. Torts, when committed by several persons jointly,
are from their nature several as well as ioint : and , j
•• ' _ Judgment
hence a judgment against one tort-feasor, on a joint against one
tort, cannot be regarded as a bar to a suit against feasomo
another tort-feasor.^ So judgment against one tres- against"'
passer will not preclude a joint trespasser from setting *°°'''^''-
up a. defence which was negatived by the first judgment.^ The
English courts, however, still maintain the rule that when a suit
is brought against one of two joint tort-feasors, a judgment
against the defendant is a bar to a suit against the other tort-
feasor, for the same cause, although the first judgment remains
unsatisfied.* " If that doctrine," says Willes, J., speaking of
the rule that a judgment in such case extinguishes the claim as
to the other tort-feasor, " is to be disturbed, and we are to adopt
the decisions of the American courts, we can only be called upon
to do so when we are taught by a court of error that Lord
per Parke, B. ; Lechmere b. Fletcher, M. & W. 594, overruling a dictum of
1 C. & M. 623, 634, 635, per Bay- Ld. Ellenborough, in Boyce v. Doug-
ley, B. las, 1 Camp. 60. See Newton v. Blunt,
He further argues that, if an action 3 Com. B. 675, where two actions hav-
on a joint contract or trespass be ing been brought against two joint
brought against two defendants, it contractors, in respect of the same
seems that one of them may plead in demand, and the debt and costs in
abatement the pendency of another one action having been paid, it was
action against him for the same cause, held that a judge at chambers might
E. of Bedford v. Bp. of Exeter, Hob. stay the proceedings in the other ac-
137; Rawlinson v. Oriet, 1 Shower, tion without costs. Taylor's Evidence,
75; Carth. 96 ; Henry v. Goldney, 15 § 1503.
M. & W. 494, per Alderson, B. But i Phillips v. Ward, 2 H. & C. 717.
that if A. be sued on a contract, the ' Lovejoy v. Murray, 3 Wall. 1 ;
pendency of an action against B., for Stone y. Dickinson, 5 Allen, 29; El-
the same cause, cannot be pleaded in liott v. Hay den, 104 Mass. 180 ; Liv-
abatement, for in such case A. is not ingston t>. Bishop, 1 Johns. 290; Atlan-
twice vexed ; and his proper course, tic Dock Co. v. Mayor, 53 N. Y. 64.
therefore, is either to plead the non- * Williams v. Sutton, 43 Cal. 65.
joinder of B., if B. is within the juris- * Broome v. Wooton, Yelv. 67;
diction, or to appeal to the equitable Brinsmead v. Harrison, L. R. 6 C. P.
authority of the court for a stay of 584; aflf. King v. Hoare, 13 M. & W.
proceedings. Henry v. Goldney, 15 494.
15
§ 776.] THE LAW OP EVIDENCE. [BOOK H.
Wensleydale was wrong. "We entertain the highest respect for
the American jurists, and are always ready to receive instruction
from their decisions upon questions of general law. But the ques-
tion, whether a plaintiff is to be allowed to maintain a second ac-
tion against one whom he ought to have sued jointly with another
in a former action, is purely one of procedure, and on such a ques-
tion we are bound by the authorities in our own courts." ^
§ 774. What has just been said applies equally to the action
Chancery ^^ equitable tribunals, under systems where chancery
view"col" remedies are applied by independent courts. When
laterally once a party has submitted a claim to a court of law,
of courts and judgment has been entered against him as to such
'^^' claim, the question of his liability will not be after-
wards collaterally opened in chancery.^ Of course it is other-
wise where the judgment is entered in the court of law from its
inability to apply equitable remedies, or from other technical
defects.^
§ 775. So, where a court of chancery, or court of probate, has
Nor court jurisdiction, its decree is conclusive evidence, in a court
decreTs'ol ^^ ^^^f ^^ between parties and privies, of all such facts
chancery, ^g -yyere directly in issue, and were necessary to the ad-
judication of the case.* It is otherwise as to the dismissal of
a bill, partaking of the nature of a nonsuit,^ though if the bill
be dismissed on the merits, it is a bar.^ Jurisdiction, however,
here, as in other cases, must appear on the record, to justify the
admission of the decree.^
§ 776. The parties in a criminal prosecution being necessarily
* Brinsmead v. HarrisoD, L. R. 6 C. Dorsey v. Gassaway, 2 Har. & J. 402;
P. 586. Pleasants v. Clements, 2 Leigh, 474 ;
" Hendrickson v. Norcross, 4 C. E. Morgan v. Patton, 4 T. B. Monr. 453;
Green N.J. 417; Baldwin w. McCrea, Troutman v. Vernon, 1 Bush, 482;
38 Geo. 650 McLemore v. Nuckolls, 37 Ala. 662
" Arnold v. Grimes, 2 Iowa, 1 ; Goddard v. Long, 15 Miss. 783 ;
Hobbs V. DufE, 23 Cal. 596. though see Kioe v. Lowan, 2 Bibb,
* Nations v. Johnson, 24 How. (U. 149 ; Mitchell v. Mitchell, 40 Ga. 11.
S.) 195; Judson v. Lake, 3 Day, 318; « Wright v. Dekline, Pet. C. C.
Coit i>. Tracy, 8 Conn. 268 ; Gould v. 199.
Stanton, 16 Conn. 12 ; Foster v. The ' Pelton v. Mott, 11 Vt. 148.
Richard Busteed, 100 Mass. 409 ; ' Dorsey v. Gassaway, 2 Har. & J.
Winans v. Dunham, 5 "Wend. 47 ; 402 ; Adams v. Tiernan,, 5 Dana,
House V. Wiles, 12 Gill & J. 838 ; 394.
16
CHAP. X.J JUDGMENTS : WHEN BINDING. [§ 776.
distinct from those in a civil suit, and the objects of the two
formsr of action and the redress they afford being es- „ . . ,
•' P Criminal
sentially different, it stands to reason that a judg- and»civii
ment in a criminal suit cannot be used in a civil suit, to tions can-
establish the facts on which such judgment rests.^ " A control'
judgment only operates by way of estoppel upon the *'"'' ""'"■
point actually decided, and is not even evidence of any matter
which came collaterally in question, although within the juris-
diction of the court, or of any matter to be inferred by argu-
ment from the judgment. " ^ Thus, a judgment of conviction on
an indictment for forging a bill of exchange, though conclusive
as to the prisoner being a convicted felon, is not only not con-
clusive, but is not even admissible evidence of the forging in
an action on the bill.^ So in a suit by a widow against a party
for killing her husband, the record of the acquittal of such party
on an indictment for murder of the husband is irrelevant ; * nor
can a judgment in a civil suit be used to control a criminal pros-
ecution.^ So, though in an action for malicious prosecution the
record of acquittal is admissible to show the determination of the
prosecution and the plaintiff's acquittal,^ it is irrelevant to prove
innocence.'
We will hereafter see that judgments may be put in evidence
to prove, as between the parties, facts incidental to a party's
case.^ Of this we have several illustrations in cases falling with-
in the present section. Thus, on the trial of an indictment for
manslaughter, the record of a prior conviction of the defendant
of an assault on the deceased, and judgment thereon before her
death, is admissible, not to prove the assault, but to prove the
^ Jones V. White, 1 Str. 68 ; Hel- ^ R. v. Duchess of Kingston, 20
sham V. Blackwood, 11 C. B. Ill; How. St. Tr. 471; R. v. Fontaine
Smith V. Rummens, 1 Camp. 9; Pe- Moreau, 11 Q. B. 1028.
trie V. Nuttall, 11 Exc. 569 ; Mead v. ^ Arundell v. Tregono, Yelv. 116 ;
Boston, .3 Cush. 404. Legatt v. Tollervey, 14 East, 301;
2 Per De Grey, C. J., in the Duch- Caddy v. Barlow, 1 Man. & Ry. 277;
ess of Kingston's case, 2 Smith's L. Basehe v. Matthews, L. R. 2 C. P.
C. 680. • 684.
° Per Blackhurn, J., Castrique v. ' Purcell v. Macnamara, 9 East,
Imrie, L. R. 4 H. L. 434. 361; 1 Camp. 199; Skidmore i>.
* Cottingham v. Weeks, 54 Ga. Bricker, 77 III. 164.
275. 8 Infra, § 819.
VOL. n. 2 17
§ 777.] THE LAW OF EVIDENCE. [BOOK II.
fact of conviction.! go qq ^ petition by a wife for divorce, the
record of her husband's conviction of an assault on her is evi-
dence to prove the fact of the conviction, but not its rightful-
ness.2 Again, on an indictment for perjury, the record of the
trial at which the alleged perjury was committed is admissible as
inducement, though not to prove the perjury .^ So in an action
or indictment for escape, it is necessary, if the person escaped
was a convict, to put in evidence his conviction, though this does
not prove guilt.* On the trial of a suit on a life policy, the issue
being as to whether the deceased died when engaged in a known
violation of the law, the record of the acquittal of a person in-
dicted for killing the deceased is inadmissible.^ The effect of a
plea of guilty in a criminal suit, when used as an admission in a
civil suit, is hereafter noticed.®
§ 777. The reasons why a judgment in a civil case should bind
all subsequent proceedings between the same parties on the same
cause of action do not apply, so it is generally argued, when
a criminal judgment is sought to be afterwards used in civil lit-
igation. In the first, place, while the parties to a civil suit, by
appearing, accept the arbitrament of the court, and thereby enter
into obligation to be bound thereby ; in a criminal prosecution
the defendant is regarded as attending by compulsion, and as
entering into no such obligation. In the second place, the par-
ties to a civil suit cannot be identical with those to a criminal
suit, for in a criminal suit it is the sovereign who, nominally
at least, prosecutes. Hence, in the Roman law, as well as in
our own, a prior criminal judgment is not conclusive as to a
subsequent civil suit for the same subject matter,' though such
prior criminal judgment, in cases where the prosecution was pri-
vate (and these were very numerous), was admissible to prove,
primd facie, the facts it averred.*
I Com. V. McPike, 3 Cush. 181. * R. v. Shaw, R. & R. 626; R. v.
» Quinn v. Quinn, 16 Vt. 426. See, Waters, 12 Cox C. C. 890 ; Davies w.
to same effect, Bradley v. Bradley, 2 Lowndes, 1 Bing. N. C. 607; Com. v.
Fairf. 367; Woodruff u. Woodruff, 2 Miller, 2 Ashmead, 61; Kyle v. State,
Fairf. 475. 10 Alab. 226.
» R. V. Christian, C. & M. 388; R. ^ ciuff v. Ins. Co. 99 Mass. 317.
V. Browne, 8 C. & P. 572; R. v. lies, ' Infra, § 783.
B. N. P. 243; R. «. Stoveld, 6 C. & P. ' L. 8. Cod. de ord. jud. iii. 8.
489; Brown «. State, 47 Ala. 47. See ' Langenbeck, 176; Endemann,
Mead v. Boston, 8 Cush. 404. 115.
18
CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 779.
The canon law took a still stronger position. By that law, all
criminal prosecutions were regarded as conducted by the sov-
ereign authority ; and the probationes, to justify conviction, were
to be urgemtiores, luce meridiana clariores, a rule frequently an-
nounced, probably as a merciful check on the frivolousness, the
corruption, and the cruelty by which state prosecutions were in
the dark ages so constantly stained. Nor was this all. In civil
suits prevailed the artificial scholastic valuation of testimony, by
which certain presumptions had attached to them absolute proba-
tive force ; in criminal prosecutions these coercive prescriptions
were withdrawn, and the judge was to determine the question of
guilt by the natural processes of logic applied to the evidence in
the case. Hence it was that the canon law resolutely refused to
permit a prior civil judgment against the defendant to be pro-
duced against him on a criminal trial for the same offence.^
With equal resolution, though for another reason, it was held,
that a prior criminal judgment could not be used in a civil suit.
Only in cases where the parties agree to accept the arbitrament
of a court can they be estopped by its judgment. But the de-
fendant in a criminal suit never agrees, nor can he be permitted
to agree, to accept the arbitrament of the court by which he is
tried. Hence a criminal judgment cannot be used against a
party in a subsequent civil suit.^
§ 778. It is not necessary that a judgment, to be a bar, should
be that of a court of common law or equity. The judg- Kuiings of
ment of a military court, or a court-martial, if competent courta'^
and constitutional, may likewise establish res judicata.^ ^°*'-
§ 779. By our own law, as well as by the Roman, a party can-
not, by varying the mode of presenting his case, evade Variation
the operation of the principle that a cause once decided of suit does
cannot be relitigated between the parties.* Thus a principle.
1 Durant, 11. 2. De prob. § 3, nr. N. S. 534 ; Heflferman v. Porter, 6
20 ; De confess. § 3, nr. 20; Bartol. in Cold. 391.
L. 2, § 1, vi. bon. et rapt, xlvii. 8; * Hancock u. Welsh, 1 Stark. R.
Masc. c. 34, 149, nr. 17; 361, nr. 4; 347; Outram v. Morewood, 3 East,
Endemann, 116. 346 ; Hitchin v. Campbell, 2 W. Bl.
' Ibid. 827; 8 Wils. 304; Whittaker v. Jack-
« Dynes v. Hoover, 20 How. U. S. son, 2 H. & C. 926; Routledge d. His-
65; WooUey v. U. S. 20 Law Rep. lop, 2 E. & E. 649; Wilkinson v.
631 ; U. S. V. Reiter, 4 Am. Law Reg. Kirby, 15 C. B. 430; HufEer v. Allen,
19
§ T81.]
THE LAW OF KVIDENCE.
[book II.
judgment for the defendant in an action of deceit, for a false
statement as to the soundness of a horse, is a bar to an action of
contract on a false warranty, and so of the converse.^ So a judg-
ment on a plea of set-off is a bar to a suit on the claim so inter-
posed.2 So a party against whom judgment has been entered,
when suing on a particular claim, cannot afterwards resuscitate
such claim by suing it as a set-off to a subsequent action by the
original defendant.^ On the other hand it has been ruled that
an action for money had and received can be maintained against
a defendant in whose favor an action of trover, by the same
plaintiff, on the same cause of action, had been previously de-
termined ; the reason being that the evidence to sustain trover
must possess characteristics not necessary to that required to sus-
tain the suit for money had and received.*
§ 780. Nor is the force of the rule broken by the fact
that there is a nominal, if there be no substantial, dif-
ference between the parties.^
To make a judgment a bar it is necessary (except in
criminal cases where the verdict of acquittal without
judgment is final) that judgment should be finally en-
tered on the merits.^ Hence a nonsuit does not bar
Nor does
nominal
variation
of parties,
§781.
Judgment
must hare
been en-
tered on
the merits
to be a bar,
L. E. 2 Ex. 15; Pearse v. Coaker, L.
R. 4 Ex. 92 ; Lawrence v. Vernon, 3
Suran. 20; Ware v. Percival, 61 Me.
391; Bunker v. Tufts, 57 Me. 417;
Gray v. Pingry, 17 Vt. 419; Spencer
V. Dearth, 43 Vt. 98; Lindsey v. Dan-
ville, 46 Vt. 144; Livermore v. Her-
schel, 3 Pick. 33 ; Merriam v. Wood-
cock, 104 Mass. 326 ; Betts v. Starr,
5 Conn. 550 ; Gardner v. Buckbee, 3
Cow. 120; Collins v. Bennett, 46 N.
Y. 490 ; Barker w. Cleveland, 19 Mich.
230; Kreuchi v. Dehler, 50 111. 176;
Owens V. Rawleigh, 6 Bush, 656 ;
Harbin v. Roberts, 83 Ga. 46; Perry
V. Lewis, 49 Miss. 443; Taylor v.
Castle, 42 Cal. 367.
1 Ware v. Percival, 61 Me. 891;
Norton v. Doherty, 8 Gray, 372.
* Eastinure v. Laws, 5 Binof. N. C.
444. See infra, §§ 787-8.
20
' Jones V. Richardson, 5 Mete.
(Mass.) 247.
* Hitchin v. Campbell, 3 Wils. 240,
304 ; Buckland v. Johnson, 15 C. B.
145.
6 Mondel v. Steel, 8 M. & W. 858;
Thompson v. Roberts, 24 How. U. S.
233; Livermore v. Herschel, 3 Pick.
33; Belden v. Seymour, 8 Conn. 304;
Lawrence v. Hunt, 10 Wend. 80 ; Ra-
pelye v. Prince, 4 Hill (N. Y.), 119 ;
Calhoun v. Dunning, 4 Dal. 120; Fol-
lansbee v. Walker, 74 Penn. St. 306;
Barker v. Cleveland, 19 Mich. 230;
Stoddard v. Thompson, 31 Iowa, 80 j
Lowry i;. McMurtry, Sneed (Ky.),
251 ; Cartwright v. Carpenter, 8 Miss.
328.
" Durant v. Essex Co. 7 Wall. 107;
Hull V. Blake, 13 Mass. 155; Morton
V. Sweetzer, 12 Allen, 134; Sweigart
CHAP. X.]
JUDGMENTS : WHEN BINDING.
[§ 781.
further action ; ^ nor does an interlocutory judgment by default,^
though it is otherwise as to a final judgment by default.^ A
reversed judgment is of course a nullity for the purposes here
specified,* and so of a vacated or revoked order of court ; ^ though
it is otherwise with a judgment as to which proceedings in error
are still pending.® A verdict without judgment is inadmissi-
ble for this purpose,' and so is an unconfirmed master's report.^
So when on a suit upon an award, judgment was entered for
want of an affidavit of defence, and then on affidavit that defend-
ant did not owe plaintiff any sum whatever, the judgment was
opened, without restrictions or conditions, and the case was tried
on pleas which struck at the root of the award ; it was ruled that
the record of the judgment was inadmissible.^
V. Berk, 8 Serg. & K. 305; Kauffelt v.
Leber, 9 W. & S. 93 ; Haws v. Tier-
nan, 53 Penn. St. 192; Gurnea v. See-
ley, 66 111.500; McFarlane». Cushman,
21 Wise. 401; Wells v. Moore, 49 Mo.
229 ; Houston v. Musgrove, 35 Tex.
594.
' R. V. St. Anne, Westminster, 2
Sess. Cas. 529; Homer v. Brown, 16
How. U. S. 354; Derby v. Jacques,
1 Cliff. 425; Knox v. Waldoborough, 5
Greenl. 185 ; Morgan v. Bliss, 2 Mass.
Ill; Com. V. Tuck, 20 Pick. 356;
Greely v. Smith, 1 Woodb. & M. 181;
Jones V. Howard, 3 Allen, 223 ; Marsh
V. Hammond, 11 Allen, 483; Wheeler
t). Kuckman, 61 N. Y. 391 ; Wortham
V. Com. 5 Rand. 669; Holland v.
Hatch, 15 Oh. St. 468.
* Whitaker v. Bramson, 2 Paine,
209.
» Miner v. Walter, 17 Mass. 237;
Newton V. Hook, 48 N. Y. 676 ; Mail-
house V. Inloes, 18 Md. 328; Gatlin
V. Walton, 66 N. C. 374 ; Brummagim
V. Ambrose, 48 Cal. 366.
* R. V. Drury, 3 C. & Kir. 193 ;
Wood V. Jackson, 8 Wend. 9.
» Taylor's Ev. § 1530.
« Wright V. Smith, 10 Ad. & E. 255;
Scott V. Pilkington, 2 B. & S. 11;
Chase t». Jefferson, 1 Houst. (Del.) 257.
' See first note to this section.
8 Nash V. Hunt, 116 Mass. 237. See,
generally. Hoover v. Mitchell, 25 Grat.
387; Verheinu. Strickbein, 57 Mo. 326;
Merritt v. Campbell, 47 Cal. 542.
9 Collins V. Freas, 77 Penn. St. 493.
" The first assignment is to the ad-
mission in evidence of the record of
the judgment previously taken in the
case. The judgment had been opened
generally. No conditions or restric-
tions had been imposed on the de-
fendant therein. The pleas subse-
quently, entered struck at the root of
the award on which the action was
founded, and denied the existence of
any indebtedness; the trial then was to
he had as if no judgment had been en-
tered. The same burden of proof was
imposed on the plaintiff. It gave to
the defendant the same defences that
were open to him at the commence-
ment of the suit. Leeds v. Bender, fi
W. & S. 315 ; Dennison v. Leech, 9
Barr, 164; Carson et al. v. Coulter et
al. 2 Grant, 121 ; West v. Irwin, 24 P.
F. Smith, 258. The record was there-
fore inadmissible. The language of the
court in their charge to the jury in re-
lation to it was further calculated to
prejudice the case." Mercur, J., Col-
lins V. Freas, 77 Penn. St. 497.
21
§ 782.]
THE LAW OF EVIDENCE.
[book n.
§ 782. If the judgment is entered against a party because of a
Purely defect in his pleadings, this does not preclude him from
judgment bringing another suit; nor can a judgment entered
no bar. q^ account of. Variance so operate. The judgment,
to operate as res adjudioata, must be on the merits.^ Thus a
judgment is no bar which is impotent by reason of a mistake
in the name of a party ,2 or because the suit was brought too
soon. 3 So a judgment on a preliminary issue (e. g. a plea in
abatement) is no impediment to bringing a new suit on the
merits,* though it concludes the parties as to the special matter
determined in the preliminary issue.^ So a judgment on de-
, , , murrer, based on formal defects, is no bar to a suit on
Judgment ' _ ' _
onde- an amended complaint, correctly setting forth a good
cause of action.® It is otherwise, however, with a de-
murrer to the merits, disposing of the whole cause of action.'^
" If judgment is rendered for defendant on demurrer to the dec-
laration, or to a material pleading in chief, the plaintifE can
never after maintain against the same defendant, or his privies,
any similar or concurrent action for the same grounds as were
• Lampen v. Kedgewin, 1 Mod. 207;
Hitchin v. Campbell, 2 W. Bl. 779-
827 ; R. V. Sheen, 2 C. & P. 634 ; R.
V. Clark, 1 Br. & B. 473 ; R. v. Van-
dercomb, 2 Leach, 708 ; People v.
Barrett, 1 Johns. R. 66; McDonald
V. Rainor, 8 Johns. R. 442; Vaughan
V. O'Brien, 39 How. (N. Y.) Pr. 616;
Heikes v. Com. 26 Penn. St. 613 ;
Com. V. Somerville, 1 Va. Ca. 164;
Hoover v. Mitchell, 25 Grat. 387 ;
Kendal v. Talbot, 1 A. K. Marsh.
821 ; Thomas v. Hite, 6 B. Monr.
590 ; Whitley v. State, 88 Ga. 50 ;
Waller v. State, 40 Ala. 325 ; Wells
». Moore, 49 Mo. 229; Verhein v.
Strickbein, 57 Mo. 326; Shelbina v.
Parker, 58 Mo. 327.
As to criminal cases, see Whart.
Cr. Law (7th ed.), § 651 et seq.
" Wixom V. Stephens, 1 7 Mich. 618.
« Clark tf. Young, 1 Cranch, 181 ;
Perkins v. Parker, 10 Allen, 22;
Woodbridge v. Banning, 14 Oh. St.
22
328 ; University v. Maultsby, 2 Jones
(N. C.) Eq. 241.
< Whart. Crim. Law, §§ 536, 551 ;
Clark V. Young, 1 Cranch, 181 ; Griffin
V. Seymour, 15 Iowa, 30 ; Birch v.
Funk, 2 Met. (Ky.) 644. See infra,
§ 1111 etseq.
« Whart. Crim. Law, § 636 ; Gray
V. Hodge, 50 Ga. 262.
As to admissions, see infra, § 838
et seq.
« R. V. Birmingham, 3 Q. B. 223 ;
Gilman v. Rives, 10 Pet. 298; Aurora
City V. West, 7 Wall. 90; Com. v.
Goddard, 13 Mass. 456 ; Chapin v.
Curtis, 23 Conn. 388 ; Foster v. Com.
8 Watts & S. 77 ; Griffin v. Seymour,
15 Iowa, 30; Crumpton v. State, 43
Ala. 81 ; Rawls v. State, 8 S. & M.
699; Harding v. State, 22 Ark. 210.
' Wilson V. Ray, 24 Ind. 156 ; Kea-
ter V. Hock, 16 Iowa, 23; Perkins w.
Moore, 16 Ala. 17; Terry v. Ham-
monds, 47 Cal. 32.
CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 783.
disclosed in the first declarations." ^ Where, however, the plain-
tiff " fails on a demurrer to his first action from the omission of
an essential allegation in his declaration which is fully supplied
in the second suit, the judgment in the first suit is no bar to the
second, although the respective actions were instituted to enforce
the same right." ^ But the dismissal of a bill in equity is a bar,
when the dismissal is on the merits.^ And so in New Dig^igsai
York as to the dismissal of a complaint at law after all «* bill,
the evidence is closed and both parties have rested.*
§ 783. In England we have a ruling of the house of lords to
the effect that a judgment entered by compromise can-
not constitute res judicata.^ In this country, however, by consent
the tendency is to hold that the fact that consent enters
into the composition of a judgment does not render it, if there be
no fraud, the less effective as a bar.^ The same conclusion has
been reached as to judgments by confession,'^ though in England
a judgment by default, as we have seen, does not preclude a party
from afterwards suing on a set-off he might have pleaded to the
first suit.^ A judgment founded on a plea of guilty, or of nolo
contendere, it has been held, is in like manner conclusive in a
subsequent criminal prosecution.* In civil suits, however, nolo
contendere is not such an admission of guilt as to be evidence
against the party pleading it.^" But a plea of guilty may, in
a civil suit involving the same subject matter, be used as an
admission.i^ Thus the plaintiff, in an action for assault, may
» Clifford, J., Gould v. R. R. 91 U. 5 Denio, 545 ; Fletcher v. Holmes, 25
S. (1 Otto) 533. See infra, § 838 et seq. Ind. 458 ; Bank v. Hopkins, 2 Dana,
a Clifford, J., Gould v. R. R. 91 395 ; Dunn v. Pipes, 20 La. An. 276.
U. S. (1 Otto) 534, citing Aurora '' Leonard v. Simpson, 2 Bing. N. C.
City V. West, 7 Wall. 90; Gilman ». 176; 2 Scott, 355 ; Neusbaum u. Keim,
Rives, 10 Pet. 298 ; Richardson v. 24 N. Y. 325 ; Sheldon v. Stryker, 34
Boston, 24 How. 188. Barb. 116; DeanB. Thatcher, 3 Vroom,
For demurrers as admissions, see 476. See other cases in Bigelow on
infra, § 840. Estoppel (2d ed.), 18.
» Borrowscalei).Tuttle,5 Allen, 377. s Howlett v. Tarte, 10 C. B. N. S.
See Lewis v. Lewis, 106 Mass. 309. 813.
* Wheeler «. Ruckman, 51 N. Y.391. ' State v. Lang, 63 Me. 220.
6 Jenkins v. Robertson, L. R. 1 H. " Com. v. Horton, 9 Pick. 206 ;
L. So. Ap. 117. Com. V. Tilton, 8 Mete. 232.
« Chamberlain v. Preble, 11 Allen, " See infra, § 838 ; R. ». Fontaine
370. See Bigelow on Estoppel (2d Moreau, 11 Q. B. 1033 ; Bradley v.
ed.), citing further Brown t>. Sprague, Bradley, 2 Fairf. 367; Woodruff t>.
23
§ 785.] THE LAW OF EVIDENCE. [»00^ °-
show by the record a conviction of the defendant for the same
assault, he having pleaded guilty.^
§ 784. Indeed, so important is it held to be that judicial
Point once Conclusions, deliberately and finally affirmed by courts
eettied ju- of competent iurisdiction, should be treated by other
dicially not ^ ■" iij.j.j2 "j.
to be im- courts as final, that, as has been well stated,^ a pomt
collator- once so adjudicated, " however erroneous the adjudica-
*"^' tion, may be relied on as an estoppel in any subse-
quent collateral suit, in the same or any other court at law, or
in chancery, or in admiralty, when either partyj or the privies of
either party, allege anything inconsistent with it ; and this, too,
whether the subsequent suit is upon the same or a different
cause of action." ^ It makes no matter whether such point is
presented singly or concurrently with others. A party who is
defeated by judgment entered against him on a particular claim
cannot revive such claim by tacking it to others as the basis of
a fresh suit.* So a judgment in an action to recover interest due
upon a note may be conclusive, on the issue of usury, in a suit
brought on the principal of the note.^
§ 785. We have just noticed cases in which the rule is, that
Parol evi- judgments relative to the same object cannot be re-
Srbfe^to ceived. It is now to be observed, that even when the
identify or parties are the same and the judgment primd facie ad-
guish. missible, it is always open to a party against whom such
judgment is offered to show, by parol or otherwise, that notwith-
standing this apparent identity, there is a difference in the points
Woodrufif, 2 Fairf. 475 ; Clark v. It- 11 ; French v. Howard, 14 Ind. 455 ;
■win, 9 Ham. 131. Eimer v. Richards, 25 111. 289 ; Doyle
, 1 Green v. Bedell, 48 N. H. 546. v. Reilly, 18 Iowa, 108 ; Heath v.
' Bigelow on Estoppel, 2d ed. 451. Frackleton, 20 Wise. 320; Amory v.
* To this are cited, Aurora City ». Amory, 26 Wise. 152 ; Jordan v. Fair-
West, 7 Wall. 82; Tioga E. Co. v. cloth, 34 Ga. 47; Baldwins. McCrea,
Blossburg R. R. 20 Wall. 137; Lynch 38 Ga. 650; Bobe v. Stickney,S6 Ala.
V. Swanton, 53 Me. 100; Bunker v. 482 ; Stewart v. Dent, 24 Mo. Ill;
Tufts, 57 Me. 417; Smith v. Smith, Martin t'. McLean, 49 Mo. 361; Win-
50 N. H. 212; Smith v. Way, 9 Allen, ston v. Affalter, 49 Mo. 263 ; Gar-
472; Lewis v. Lewis, 106 Mass. 309; wood v. Garwood, 29 Cal. 514; Nor-
Demarest v. Darg, 32 N. Y. 281; Hen- ton v. Harding, 3 Oreg. 861.
drickson v. Norcross, 4 C. E. Green, * Finney v. Finney, L. R. 1 P. &
417; Sergeant v. Ewing, 36 Penn. St. D. 483.
156 ; Babcock v. Camp, 12 Oh. St. " Newton v. Hook, 48 N. Y. 676.
24
CHAP. X.J
JUDGMENTS : WHEN BINDING.
L§ 785.
submitted in the two cases. The issue thus raised as to iden-
tity is one of fact, which the jury must determine.^ So the sub-
stantial as well as formal identity may be shown by parol.^ But
1 Infra, § 986; supra, § 64;_Ri-
cardo v. Garcias, 1 2 CI. & F. 368 ; E.
V. Bird, 2 Den. C. C. 94; 5 Cox C. C.
20 ; Hunter v. Stewart, 4 De Gex, F.
& J. 168 ; Langmead v. Maple, 18 C.
B. N. S. 255; Moss v. Anglo-Egypt.
NaT. Co. L. R. 1 Ch. Ap. 108 ;
Wemyss v. Hopkins, 23 W. R. 691 ;
Beere v. Fleming, 13 Ir. C. L. 506 ;
Dolphin V. Aylward, 15 Ir. Eq. R. N.
S. 583 ; Aspden v. Nixon,- 4 How.
467; Goodrich u. City, 5 Wall. 566 ;
Packet Co. v. Sickles, 55 Wall. 580 ;
Perkins v. Walker, 19 Vt. 144; Aiken
V. Peck, 22 Vt. 255 ; Post v. Smilie, 48
Vt. 185 ; Piper v. Richardson, 9 Mete.
(Mass.) 155; Harding v. Hale, 2 Gray,
399; Com. v. Dillane, 11 Gray, 67; Bod-
warth u. Phelon, 13 Gray, 413; Burlen
V. Shannon, 99 Mass. 200; Leonard v.
Whitney, 109 Mass. 265 ; Com. v.
Sutherland, 109 Mass. 342 ; Hood v.
Hood, 110 Mass. 483; Boynton v.
Morrill, 111 Mass. 4; Hanham v.
Sherman, 114 Mass. 19; Smith v.
Sherwood, 4 Conn. 276; Stowell v.
Chamberlain, 3 Thomp. & C. 374;
Richmond v. Hays, 3 N. J. L. 492 ;
Davissoni). Gardner, 10 N. J. L. 289;
McDermott v. Hofl'man, 70 Penn. St.
31 ; FoUansbee v. Walker, 74 Penn.
St. 306; Barger v. Hobbs, 67 111. 592;
Gist V. McJenkin, 1 Speers, 157 ;
Bradley v. Johnson, 49 Ga. 412 ;
Newton v. White, 47 Ga. 400; Rake
V. Pope, 7 Ala. 161 ; Chamberlain v.
Gaillard, 26 Ala. 504 ; Robinson v.
Lane, 22 Miss. 161 ; Clemens v. Mur-
phy, 40 Mo. 121. For other cases see
§ 986, and Freeman on Judgments, §§
297, 298.
" it is a very familiar principle that
a judgment concludes the parties only
as to the grounds covered by it, and
the facts necessary to uphold it. Cow.
& Hill's Notes, vol. 3, p. 826. And,
although a, decree in express terms
professes to affirm a particular fact,
yet, if such fact was immaterial, and
the controversy did not turn upon it,
the decree will not conclude the par-
ties in reference to that fact. Coit v.
Tracy, 8 Conn. 268 ; Manny v. Har-
ris, 2 Johns. 24." Bacon, J., The
People V. Johnson, 38 N. Y. 65.
» Hughes V. Jones, 2 Md. Ch. 178.
See fully infra, § 986.
" The fifth error assigned is to the
admission of the testimony of James
L. Gwinn, a witness called for the
plaintiff below for the purpose of
proving that the location claimed by
the plaintiff on a former trial in the
United States court in 1857, the rec-
ord of which was in evidence, was the
same as alleged in the present trial.
That former suit was clearly admissi-
ble as persuasive evidence in this.
Koons V. Hartman, 7 Watts, 20; Lev-
ers V. Van Buskirk, 4 Barr, 309. At
all events it was in evidence, and we
are not now dealing with the question
of its admissibility. When the record
of a former suit is in evidence, it is
settled that a party may give parol
evidence of what transpired on a
former trial, in order to show that it
was the same subject matter, and the
same title which was then passed
upon. Brindle v. Mcllvaine, 10 S.
& R. 282 ; Haak v. Breidenbach, 3
Ibid. 204; Carmony v. Hoober, 5
Barr, 305. This of course is not to
contradict the record but to explain
it." Sharswood, J., McDermott v.
Hoffman, 70 Penn. St. 52.
25
§ 786.J THE LAW OF EVIDENCE. [BOOK H.
a point not at issue by the record cannot be shown by parol to
have been decided by the case.^
§ 786. A judgment is an estoppel, it should be remembered,
Judgment °^ *^^ principle ne his idem. When a party has a chance
not an es- of trying his case on the merits, he is concluded by a
whenevi- judgment against him; he cannot hold back, and, if
essariiy things go against him, begin afresh. But how if he has
different. ^^ chance of trying his case on the merits ? How is it
if the first trial is before a court that is prevented, by its rules,
from receiving a material part of the evidence the party has to
offer ? Is a second court, restricted by no such rules, bound by
the judgment of the first? In England the converse of this prin-
ciple is illustrated by those cases in which, under the old law, the
wife could not, in answer to her husband's suit for divorce, set
up her own divorce from him, when the evidence in the latter
case was obtained on the wife's evidence, which was inadmissi-
ble in the first.^ But this exception should not be admitted in
favor of a plaintiff who, having elected to bring a suit in a ju-
risdiction where the evidence is restricted, and is worsted and
judgment entered against him, attempts to open the question in
another jurisdiction, under more liberal rules of evidence.^ On
the other hand, where a suit for trespass quare elausum f regit is
brought, and the defendant pleads liberum tenementum, and has
a verdict, and a suit is brought for another trespass on the same
property, if it appear that in the first case the evidence went to
a portion of the land to which the defendant could justify, and
in the second case to a portion of the land to which he could not
justify, the former judgment is no bar.* Again, a judgment on
an action of trespass quare elausum f regit is no bar to a writ of
right ;^ and a judgment for the defendant on a contract, in
which a promise and a breach was averred, is no bar to an ac-
' Manny v. Harris, 2 Johns. R. 24 ; Terry v. Hammonds, 47 Cal. 32 ; Wil-
Jackson v. Wood, 3 Wend. 27. liams v. Walker, 62 111. 517.
" Stoate V. Stoate, 2 Sw. &Tr. 223; * Smith v. Royston, 8 M. & W.
though see Sopwith v. Sopwith, 2 Sw. 386. See Dunckle v. Wiles, 5 Denio,
^ '^'■- 1^0- 296 ; Connery v. Brooke, 73 Penn. St.
» Maloney v. Horan, 12 Abb. (N. 80.
Y.) Pr. N. S. 289. See, generally, « Arnold v. Arnold, 17 Pick. 4 ;
though see Calhoun v. Dunning, 4
26 Ball. 120.
CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 788.
tion on a tort, based on the defendant's fraudulent representa-
tions.i
§ 787., In criminal issues, where the plea of autrefois acquit is
interposed, it is laid down that when the eyidence nee- when evi-
essary to support the second indictment would have gecomicase
been sufficient to procure a legal con\dction on the first, necessarily
r o ' enough to
then the plea is generally good, but not otherwise.^ secure a
The same test may be applied with equal accuracy to in first,
civil practice.^ Thus a verdict for the defendant in judgment
trover, on a plea of not guilty, will be no defence to " " *""■
him on an action for money had and received for the price of the
goods, when in the latter case the eAridence is that the goods were
sold by the plaintiff's order, on which evidence a verdict in the
former case for the plaintiff could not have been had.* So a
judgment in an action for false imprisonment is no bar to an
action for malicious prosecution.^
§ 788. It may be that a party, having an opportunity of intro-
ducing a particular claim when suing on a general ac- Party not
count, omits to do so. In such case, he is not precluded from "suing
from bringing up such claim in a second suit, even though aSe's n'S"**
in the first suit he agreed to submit " all matters in dif- present,
ference" to an award. ^ So, a fortiori, where the plaintiff, without
any such agreement, in the former suit, presented only part of his
case.'^ On the other hand, it has been declared by high author-
ity, that " where a given matter becomes the subject of litiga-
tion in and of adjudication by a court of competent jurisdiction,
1 Norton v. Huxley, 13 Gray, 285. See Seddon v. Tutop, 6 T. R. 607 ;
2 Whart. Cr. Law, 7th ed. § 755, Webster v. Lee, 5 Mass. 334.
and authorities there cited. ' Florence v. Jenings, 2 C. B. N.
» Taylor's Ev. § 1512; Hitchin v. S. 454 ; Bagot v. Williams, 3 B. & C.
Campbell, 2 W. Bl. 831 ; Hunter v. 240; Washington, &c. Co. v. Sickles,
Stewart, 4 De Gex, F. & J. 178 ; Dol- 24 How. 333 ; Post v. Smilie, 48 Vt.
phin V. Aylward, 15 Ir. Eq. R. N. S. 185 ; Wood v. Curl, 4 Mete. (Mass.)
583 ; Dubois v. R. R. 5 Fish. Pat. Cas. 203 ; Louw v. Davis, 13 Johns. R.
208; Riker i;. Hooper, 35 Vt. 457 ; 227; White «. Moseley, 8 Pick. 356;
Marsh V. Pier, 4 Rawle, 273 ; Connery Elliott v. Smith, 28 Penn. St. 131 ;
V. Brooke, 73 Penn. St. 80 ; Lindsley McQuesney v. Hiester, 33 Penn. St.
V. Thompson, 1 Tenn. Ch. 272. 435 ; KaufE v. Messner, 4 Brewst. 98;
* Hitchin v. Campbell, 2 W. Bl. 831; Thorpe v. Cooper, 6 Bing. 129; Ams-
Buckland v. Johnson, 15 C. B. 161. den v. R. R. 32 Iowa, 288 ; Barger v.
6 Guest V. Warren, 9 Exch. 379. Hobbs 67 111. 592. See Freeman on
' Ravee v. Farmer, 4 T. R. 146. Judgments, §§ 279-286.
27
§ 788.] THE LAW OF EVIDENCE. [BOOK 11.
the court requires the parties to that litigation to bring forward
their whole case, and will not, except under special circumstances,
permit the same parties to open the same subject of litigation
in respect of matter which might have been brought forward,
only because they have from negligence, inadvertence, or even
accident, omitted part of their case. The plea of res judicata
applies, except in special cases, not only to points upon which
the court was actually required by the parties to form an opinion
and pronounce a judgment, but to every point which properly
belonged to the subject of litigation, and which the parties, exer-
cising reasonable diligence, might have brought forward." ^ Thus
where a party implicitly submits, or is bound to submit, all of an
aggregate cl'aim of kindred items to a jury, and then takes judg-
ment for a part (as when he sues for the rent due for two years
and takes judgment for rent for one year, after submitting the
whole to the jury), then he is precluded from suing a second
time on the dropped items.^ He is also estopped where he sub-
mits his demands to the jury with inadequate proof ;3 nor does
it better his case that he lost the first suit in consequence of an
erroneous exclusion of evidence by the court,* nor that he has
subsequently discovered evidence which would change the result.^
1 Henderson v. Henderson, 3 Hare, ' Miller v. Manice, 6 Hill (N. Y.),
115, per Wigram, V. C. See, also, 114.
Srimut Rajah v. Katama Natchiar, 11 * Smith v. Whiting, 11 Mass..445.
Moo. Ind. App. C. 50 ; Farquharson ' Marriott v. Hampton, 7 T. R. 269,
V. Seton, 5 Russ. 45 ; Partridge v. overruling Moses v. Macferlan, 2 Burr.
Usborne, Ibid. 195 ; Chamley v. Lord 1005 ; Flint v. Bodge, 10 Allen, 128.
Dunsany, 2'Sch. & Lef. 718, per Ld. Again, when a plaintiff having a
Eldon ; M. of Breadalbane v. M. demand for a liquidated sum fconsist-
of Chandos, 2 Myl. & Cr. 732, 733, ing of several items) takes a verdict
per Lord Cottenham, cited Taylor, for a part of this sum, he cannot at-
§ 1513. terwards bring a second action for the
" Baker v. Stinchfield, 57 Me. 363; residue. Bagot v. Williams, 3 B. &
Warren v. Comings, 6 Gush. 103; C. 235, 241. See Smith u. Johnson,
Smith V. Jones, 15 Johns. R. 229 ; 15 East, 213 ; Dunn v. Murray, 9 B.
Willard v. Sperry, 16 Johns. R. 121 ; & C. 780, 788. See Ravee v. Farmer,
Miller v. Govert, 1 Wend. 487 ; Re- 4 T. R. 146. It is on the same prin-
formed Ghurch v. Brown, 54 Barb, ciple settled, that where a plaintiff
191; Burford u. Kersey, 48 Miss. 643; who declares on several causes of ac-
Wickersham u. Whedon, 83 Mo. 561; tion fails to establish some of them
Nave V. Wilson, 33 Ind. 294 ; Schmidt at the trial for want of evidence, he
ti. Zahensdorf, 30 Iowa, 498 ; Bigelow cannot bring a second action to re-
on Estoppel, 98. cover damages for these last, unless
28
CHAP. X.]
JUDGMENTS : WHEN BINDING.
[§ 789.
It is plain, also, that when the plaintiff sues npon and submits
for adjudication an entire demand, based upon an indivisible
cause of action, by taking judgment for a part, he loses the right
to sue for the remainder.^ He may, however, avoid this peril by
voluntarily withdrawing from the court, before judgment, a por-
tion of the claim.2
§ 789. Where a party, sued on a debt on which he has made
a partial payment, omits, when he is able to do so, to nefendant,
prove such payment, he cannot afterwards maintain p™ye"M,y-
a suit against his original creditor for the payment.^ ™J'".T-
Whenever, to put this conclusion in general terms, it as set-off,
is the duty of a party, when sued, to defend and pro- afterwards
tect his rights, then, if he omit this duty, he cannot money so*
afterwards, as plaintiff, sue for such rights.* If, from P*"*"
any circumstances, it is his duty to present his defence, and leave
it to be detej-mined by court and jury, then if he neglect this
duty, his claim is lost to him.
This principle has been said to be applicable to set-offs of all
classes,^ though as to a purely equitable defence its applicability
he elects to be nonsuited generally, 45 Ind. 489 ; Greenabaum v. Elliott,
or can induce the court to set aside 60 Mo. 25.
the verdict he has obtained. Stafiford
1!. Clark, 2 Bing. 382, per Best, C. J.
1 Goodrich v. Yale, 8 Allen, 454;
Marble v. Keyes, 9 Gray, 221 ; Ban-
croft V. Winspear, 44 Barb. 209; Re-
formed Church V. Brown, 54 Barb.
191; Stein v. Prairie Rose, 17 Oh. St.
471; Fish v. FoUey, 6 Hill, 54; We-
ber V. R. R. 36 N. J. L. 213; Carvill
». Garrigues,'5 Barr, 152. See Bagot
V. Williams, 3 B. & C. 235.
2 O'Beirne v. Lloyd, 43 N. Y. 248.
» Baker v. Stinchfield, 57 Me. 363;
Loring v. Mansfield, 17 Mass. 394
(qualifying Rowe v. Smith, 16 Mass.
306) ; Tilton v. Gordon, 1 N. H. 33 ;
Binck V. Wood, 43 Barb. 315; S. C.
37 How. Pr. 663, overruling Smith v.
Weeks, 26 Barb. 463 ; Corbet v. Evans,
25 Penn. St. 310; Davis v. Murphy,
2 Rich. (S. C.) 560 ; Broughton v.
Mcintosh, 1 Ala. 103; Mitchell v.
Sanford, 1 1 Ala. 695 ; Bates v. Spooner,
InBurwell v. Knight, 51 Barb. 267,
it was held that this rule does not ap-
ply when on the first case judgment
was taken by default ; and to the same
effect is Roweu. Smith, 16 Mass. 306;
but see, contra, Davis v. Murphy, 2
Rich. (S. C.) 560. See, also, Snow
V. Prescott, 12 N. H. 535, overruling
Tilton V. Gordon, 1 N. H. 33; Bat-
tey V. Button, 13 Johns. 187; Walk-
er V. Ames, 2 Cow. 428 ; Mitchell v.
Sanford, 11 Ala. 695; and, per contra,
Emmerson v. Herriford, 8 Bush, 229.
* Footman v. Stetson, 32 Me. 17;
Doak ■o. Wiswell, 33 Me. 355; Walk-
er V. Ames, 2 Cow. 428; Dudley v.
Stiles, 32 Wise. 371. See Huffer •,.
Allen, L. R. 2 Exch. 15.
6 Baker v. Stinchfield, 57 Me. 363;
though see Davenport v. Hubbard, 46
Vt. 200; Greenabaum v. Elliott, 60
Mo. 25.
29
§ 789.]
THE LAW OF EVIDENCE.
[BOOK n.
has been denied ;i and with unquestionable accuracy where the
equitable defence was one of which the court on the first .trial
could not take jurisdiction.^
1 McCreary v. Casey, 45 Cal. 128.
^ Gordon v. Kennedy, 36 Iowa,
167.
In a case decided in Missouri in
1875, this point was discussed on the
following, facts : An administrator,
after personal service, obtained judg-
ment by default on a note given to the
intestate, and realized the amount due,
and the maker subsequently sued to
recover back the money, claiming that
the debt had already been paid to the
deceased. The proof showed merely
a promise of the latter to deliver up
the note. It was held by the supreme
court, 1st, that the duty of surrender-
ing it was a moral and not a legal ob-
ligation, and not a good consideration
for the promise, and hence, that such
agreement would not sustain the ac-
tion against the administrator ; 2d,
that the judgment in favor of that offi-
cer, in the suit brought by him, was
res adjudicaia ; and the failure to set
up therein the defence of payment
conclusively barred the maker from
subsequently prosecuting the claim.
Such is the rule, so was it declared, as
now established in all cases, unless the
party can show some ground for equi-
table interference.
" This is the recognized," so the
court argued, " and, I may say, at the
present time, the universal doctrine.
Some of the earlier decisions in Mas-
sachusetts announced a different rule,
but they cannot be supported, and are
not now regarded as authority. In
the case of Rowe v. Smith, 16 Mass.
306, the plaintiff had paid $50 on a
$400 note, and taken a receipt. Af-
terwards he was sued on the $400 note,
and judgment was entered against him
for the whole amount. An action by
the plaintiff to recover back the $50
80
was sustained. Parker, C. J., stated
that his first impression was against the
recovery, but it was finally sustained
on the ground that the defendant had
received $50 which he was not entitled
to retain, and that he could not con-
scientiously be permitted to.keep it.
" The case of Loring v. Mans-
field, 17 Mass. 394, involves the same
principle decided in Rowe v. Smith,
with the difference of fact that in the
former case the plaintiff in the second
action appeared in the first and con-
tested the recovery, but did not at-
tempt to prove the payment for which
he afterwards brought an action. The
court decided, however, that he could
not recover, the grouiid being sub-
stantially that, having been in court,
he ought to have proved his whole
defence when he had an opportunity.
"In neither case was there any
actual trial as to the payment claimed
to be recovered. This case, there-
fore, not only impairs the authority
of Rowe V. Smith, but in fact over-
rules it.
" The case of Whitcomb v. Wil-
liams, 4 Pick. 228, cited and greatly
relied on by plaintiff's counsel, does
not in the least aid him. The case
went off on different grounds. The
court say : ' In this case a cause of
action has been shown, independent
of the judgment; nor was the proof of
the judgment at all material to the
merits of the case.'
'"There can be no doubt,' says
Freeman, ' that the Massachusetts
decisions are in direct conflict with the
true rule upon the subject, both Eng-
lish and American, and they were in-
duced by yielding to the hardships
of the particular cases in which they
were pronounced, and are good illus-
CHAP. X.]
JUDGMENTS: WHEN BINDING.
[§ 789.
The rule just stated, however, does not preclude a party
from withholding a cross demand from a jury, and afterwards
offering it as the ground of an independent suit.^ A vendee,
for instance, is sued for the price of a stove, and a verdict is
had against him, he making no defence. He then sues the
vendor for damage accruing from the latter's negligent con-
struction of the stove, and the vendor sets up the former judg-
ment as conclusive. In such case, it is held by the English
queen's bench, that as the vendee was at liberty to advance the
claim for damages as a set-off or not, as he chose, he is not barred
by a judgment in a suit when that claim was not in issue.^ We
may sustain this, in all cases in which a party is at liberty to
either produce or withhold his claim, on the ground that no one
party has a right, by suing another, to compel such other person
trations of the maxim, " that hard
cases make bad precedents." ' Freem.
Judg. § 286; 2 Sm. Lead. Cas. 667.
' It is clear, that if there be a bona
fide legal process under which money
is recovered, although not actually due,
it cannot be recovered back, inas-
much as there must be some end to lit-
ioation.' Cadaval u. Collins, 4 Ad. &
El. 867. A party having found a re-
ceipt for a debt which he had been
compelled to pay by judgment, having
sought to recover back the money paid,
Lord Kenyon, before whom the case
came, said : ' I am afraid of such a
precedent. If this action could be
maintained I know not what cause of
action could ever be at rest. After
recovery by process of law there would
be no security for any person.' Mar-
riott V. Hampton, 7 T. K. 269.
"In the recent case of Buffer v.
Allen, L. R. 2 Exch. 15, it was de-
clared that ' it was not competent for
either party to an action to aver any-
thing, either expressing or importing
a contradiction to the record, which,
while it stands, is, as between them,
of uncontrollable verity.' To the same
purport are nearly all the American
cases. Tilton v. Gordon, 1 N. H. 33 ;
Broughton v. Mcintosh, 1 Ala. 103;
Mitchell V. Sanford, 11 Ibid. 695; Cor-
bet V. Evans, 25 Penn. St. 310 ; Kirk-
Ian V. Brown, 4 Humph. 1 74 ; Loomis
V. Pulver, 9 Johns. 244; Battey v.
Button, 13 Johns. 187.
" The case of Walker v. Ames, 2
Cow. 428, was of special hardship.
There had been a recovery on an ac-
count, and also on a note given in set-
tlement of the same account. The
defendant in that action then sued to
recover back one half of the judgment
thus improperly recovered. The court
held that the action would not lie ;
' that there could be no end to litiga-
tion nor any security to a person,' if
such an action could be brought.
" It may, therefore, be stated as the
established rule, that where a defend-
ant has been legally in court, and
fails or neglects to make his defence,
if he has one, the judgment will be
conclusive upon him, unless he can
show some ground for equitable inter-
ference." Greenabaum v. Elliott, 60
Mo. 25, 30, 31, Wagner, J.
^ Davenport v. Hubbard, 46 Vt.
200.
2 Davis V. Hedges, L. R. 6 Q. B.
687.
31
§ 790.] THE LAW OF EVIDENCE. [BOOK 11.
to offer, at that moment and before that court, a claim he does
not at that time or before that court, choose to ofEer.^
§ 790. If, indeed, when a party is sued, he has a cross demand
which, if proved, would pro tanto extinguish the plaintiff's claim,
and if, instead of setting up his cross demand, he admits the
validity of the original claim, this precludes him from afterwards
bringing a reverse suit on his cross demand. This position,
based as it is on the policy of the law favoring consolidation of
litigation, is pushed to a questionable limit in a New York case,
where, after a surgeon had recovered (on a confessed judgment,
the defendant admitting the cause of action) for his services ren-
dered to a patient, the patient turned round and sued the sur-
geon for negligence in the performance of his services. The
court of appeals held that the latter action could not be main-
tained, since the patient, by confessing the judgment, admitted
the plaintiff's right to recover.^ It has also been held in the
same state that where a manufacturer obtained judgment for the
price of machinery sold by him, the vendee could not afterwards
recover from the manufacturer for breach of warra,nty.^ In these
cases, however, the original defendant, by his answer, or by his
course on trial, admitted the validity of the plaintiff's claim ; and
what he thus admitted he could not be permitted afterwards to
controvert. It is otherwise when there is no such admission;*
and we may therefore hold that a party, when sued, is not bound
to set up a cross demand that he may have against the plaintiff,
but that he may reserve (if by plea or otherwise he does not
admit the validity of the plaintiff's claim) his cross demand for
an independent suit in which he is to be plaintiff himself. Other-
wise a defendant would be put in a position very inferior to a
plaintiff. A plaintiff may, at any time, by taking a nonsuit,
voluntarily reserve his claim for another trial. If a defendant is
not permitted to withdraw his set-off from a jury, and to bring
it forward as the basis of another suit, then the contest between
' Hadley v. Greene, 2 Tyr. 390; » Davis v. Tallcot, 12 N. Y. 184.
Bridge u. Gray, U Pick. 55. < Mondel v. Steel, 8 M. & W.
" Gates V. Preston, 41 N. Y. 113; 868; Davis v. Hedges, L. R. 6 Q. B.
relying on White v. Merritt, 7 N. Y. 687; Bascom v. Manning, 52 N. H.
352; and Davis u. Tallcot, 12 N. Y. 132; Burnett u. Smith, 4 Gray, 50 ;
184. See, contra, Sykes v. Bonner, Ihmsen v. Ormsby, 32 Penn. St. 198.
Cin. Sup. Ct. 464.
32
CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 792.
himself and the plaintiff is very unequal ; and he would be re-
fused a privilege of which plaintiffs can make important use.
We would be compelled, therefore, if we reject the view here
presented, to hold that whether a party is entitled to withdraw
a claim put before a jury, depends upon whether he is plaintiff
or defendant ; if a plaintiff, he has this right ; but he has it not,
so would we be forced to say, if he is defendant. But it can-
not be intended by the law that a party's rights should be thus
arbitrarily disposed of ; and therefore we must hold that a party
who has a cross demand is not precluded by a judgment against
him in which such demand is not involved, but, if he has not
confessed the original plaintiff's claim, may make his cross de-
mand the basis of a suit against the original plaintiff.^ It is
scarcely necessary to add, that a party who submits his cross de-
mand to the jury is bound by the action of the court thereon.^
§ 791. A party, also, on the same principle, who omits to set
up a defence to one suit is not precluded from setting this de-
fence to another suit of the same class. Thus it may be that a
tenant sued for rent has a set-off, or other avoidance, which is a
good defence ; but if he omit to present this defence, and it is
not passed upon by the court and jury, he is not thereby pre-
cluded from setting it up in defence to a subsequently accruing
instalment of the same rent.^
§ 792. Pursuing the line thus noticed, it follows that when
there is a series of successive claims, a judgment in a ^ j
' J " _ Judgment
suit for one of such claims cannot conclude suits for i° sucoes-
claims accruing subsequently to the suit.* ouppose, tor cumng
. 1 ■ 1. ■ ■ j: claims not
instance, a person has a nuisance on nis premises, tor ejcEaust-
which he is sued by a party injured ; it would not be "^'
pretended that if he is acquitted in a suit for deleterious con-
sequences produced to-day, he will be therefore exonerated
from suit for injurious consequences produced to-morrow.^ Nor
could it be maintained that a judgment in favor of the plain-
1 See, also, Barker v. Cleveland, 19 * Leland v. Marsh, 16 Mass. 389 ;
Mich. 230; and remarks in Bigelow Marcellus v. Countryman, 65 Barb,
on Estoppel, 104 et seq. 201. See Reformed Church v. Brown,
" Sargent w. Fitzpatrick, 4 Gray, 54 Barb. 191.
511; 0'Connor».Varney, lOGray, 231. « See People v. Townsend, 3 Hill
s Hewlett V. Tarte, 10 C. B. N. S. (N. Y.), 479; R. v. Fairie, 8 E. & B.
813. 486 ; 8 Cox C. C. 66.
VOL. II. 3 33
§ 794.] THE LAW OF EVIDENCE. [BOOK II.
tiff for yesterday's nuisance would be conclusive in a suit for
to-day's nuisance.^ Nor, if a way is obstructed, could a judg-
ment on a suit for yesterday's obstruction bar a suit from be-
ng brought for to-day's obstruction.^ Nor, if a series of drams
are sold at a bar, can an action for a sale yesterday prevent an
action from being brought for a sale to-day.^ We may therefore
hold that although, when the question at issue goes to the general
liability of the defendant to the plaintiff, a judgment may be
admitted as primd facie determining such liability, yet a judg-
ment on a suit for a breach of yesterday cannot be conclusive as
to a suit for a breach of to-day. The same distinction may be
asserted as to recuning claims: e. g. taxes, and debts due by
instalments.* But where the question whether a certain thing
is a nuisance or a trespass is solemnly determined between the
parties by a judgment for the plaintiff, then the defendant is
estopped from denying, on a suit for a continuing offence, the
fact that the thing complained of is a nuisance or a trespass.^
§ 793. A judgment is conclusive as to all the averments
, essential to its maintenance, but not so as to collateral
Judgment
not con- matters, which, though introduced into the case, or
to oollat- deducible from the judgment, yet were not necessary
era pom s. ^^^^^ qJ ^^ issues of the case.^ Thus where a bill
in equity, seeking to set aside a deed, alleged that the complain-
ant believed that T. executed the deed in question, but did not
directly aver such execution, it was ruled that the fact of the
execution not being in issue, a decree in favor of the defendant
could not be used to estop a party to the suit from claiming
against the deed.''
§ 794. It has been seen that a dispositive judgment (i. e. one
1 Richardson v. Boston, 19 How. Carter v. James, 13 M. & W. 137;
U. S. 263. Leonard v. Whitney, 109 Mass. 265;
* Evelyn y. Haynes, cited Taylor on Crandall v. Gallup, 12 Conn. 365;
Ev. § 1509; Connery v. Brooke, 73 Dunckle«.WiIes,5 Denio,296; Wood-
Penn. St. 80. gate v. Fleet, 44 N. Y. 1 ; Hibshraan
» See Whart. Cr. L. § 2443; State v. Dulleban, 4 Watts, 183; Benton ti.
V. Coombs, 32 Me. 529. O'Fallon, 8 Mo. 650; Fish v. Light-
* Bigelow on Estoppel, 2d ed. 34; ner, 44 Mo. 268; Sawyer v. Boyle, 21
Duncan v. Bancroft, 110 Mass. 267. Tex. 28.
« Fowle V. R. R. 107 Mass. 352; ' Crandall v. Gallup, 12 Conn.
Plate 0. R. R. 37 N. Y. 472. 865.
« Smith V. Royston, 8 M. & W. 381 ;
34
CHAP. X.] WHEN JUDGMKNTS MAY BE IMPEACHED.
[§ 795.
•which has a contractual force, operating as by estoppel) only
binds as between parties and privies. A qualification judgment
of this rule is to be found in cases where the judgment rights ad-"
is based on a public right or duty : e. a. the rights of ""sf'^ie
Jr o J ^ a o against
ferry, or of tolls, or other franchises ; and the liability strangers,
to repair roads or sea-walls. Yet, except as to the immediate
parties to such suits, judgments are only primd facie proof of
liability or of duty.^ Verdicts may be also received for the same
purpose, under conditions to be hereafter stated.^
II. WHEN JUDGMENT MAT BE IMPEACHED.
§ 795. A judgment entered by a court which, on the face of
the record, has either no jurisdiction, or a jurisdiction
which does not attach, is coram non judice, and may be may be
impeached even by the party in favor of whom the impeached
judgment was obtained ; ^ a fortiori by the party against jurisdic- °
whom it was given.* An inferior court must show on *"""■
the record that it had jurisdiction.^ The same distinction holds
1 See fully supra, § 200; Reed r.
Jackson, 1 East, 357 ; Brisco v. Lo-
max, 8 A. & E. 198; Evans v. Kees,
10 A. & E. 151 ; R. t). Leigh, 10 A. &
E. 398; Pim v. Curell, 6 M. & W. 234;
Croughton v. Blake, 12M. & W. 205;
Spencer v. Dearth, 43 Vt. 98 ; Fowler
V. Savage, 3 Conn. 96 ; Gibson v.
Nicholson, 2 S. & R. 422 ; and see
Freeman on Judgments, § 419.
2 Infra, § 831.
» Mercier v. Chace, 9 Allen, 242.
So a judgment for the defendant for
want of jurisdiction, is no bar to a suit
by the same plaintifiF against the same
defendant in a court having jurisdic-
tion. Offutt V. Offutt, 2 Har. & G. 178.
* R. V. Chester, 1 W. Bl. 25 ; R. v.
Washbrook, 4 B. & C. 732 ; Briscoe
V. Stephens, 2 Bing. 213; 9 Moore,
413; Huthwaite v. Phaire, 1 M. & Gr.
159; Rogers v. Wood, 2 B. & Ad.
245; Whyte v. Rose, 3 Q. B. 49^
Linnell v. Gunn, L. R. 1 Ecc. 363;
Custis V. Turnpike Co. 2 Cranch
C. C. 81 ; Lincoln v. Tower, 2 Mc-
Lean, 473; Board of Works u. Colum-
bia College, 17 Wall. 521; Thompson
V. Whitman, 18 Wall. 457; Hill v.
Mendenhall, 21 Wall. 453; Stevens
V. Fassett, 27 Me. 266; Penobscot
R. R. V. Weeks, 52 Me. 456; Gay ».
Smith, 38 N. H. 171 ; Com. v. God-
dard, 13 Mass. 457; Borden v. Fitch,
15 Johns. 121; Latham ti. Edgerton,
9 Cow. 227; Gage v. Hill, 43 Barb. 44;
Smith V. Ferris, 1 Daly, 18; Kintz v.
McNeal, 1 Denio, 436 ; §tate v. Coop-
er, 1 Green N. J. 361; Fisher v. Long-
necker, 8 Barr, 410; James v. Smith,
2 S. C. 183 ; Parish v. Parish, 32 Ga.
653; Richardson v. Hunter, 23 La.
An. 255 ; Bates v. Spooner, 45 Ind.
489; Bonsall v. Isett, 14 Iowa, 309;
Mayo V. Ah Loy, 32 Cal. 477; Dorsey
V. Kendall, 8 Bush, 294; North v.
Moore, 8 Kans. 143.
6 Harris v. Willis, 15 C. B. 709;
Crawford v. Howard, 30 Me. 422 ;
Clark W.Bryan, 16 Md. 171; Adams
V. Tiernan, 5 Dana, 394; Gray v. Mc-
Neal, l^Ga. 424.
35
§ 796.J
THE 1 LAW OF EVIDENCE.
[book n.
good with respect to superior courts with limited statutory juris-
diction,! or with regard to courts of any class, obviously transcend-
ing their powers.^ If the record, however, avers the facta neces-
sary to constitute jurisdiction, such averments cannot (except in
cases of fraud to be hereafter noticed) be collaterally disputed by
parties or privies.^ Nor, where the record shows jurisdiction
(unless with the exception already noticed), can parties or privies
collaterally dispute the rulings of courts on questions of jurisdic-
tion which they did not dispute at the time.*
§ 796. At the same time, it is now settled by the supreme
court of the United States that a person sued in one state, on a
judgment obtained in another, may defend by pleading specially
that in point of fact the court rendering judgment had not juris-
diction of his person ; ^ or that the attorney appearing for him
appeared without his authority.® Indeed, wherever the record
does not aver an appearance in person, it is open to a party to
contest a judgment by pleading that the appearance of an at-
torney, as averred by the record, was unauthorized by the party.'
1 Harris v. Hardeman, 14 How. U.
S. 334; Morse v. Presby, 25 N. H.
299 ; Carleton v. Ins. Co. 85 N. H.
162; Huntington V. Charlotte, 15 Vt.
46; Embury v. Conner, 3 Comst. 322.
See, however, Hahn v. Kelly, 84 Cal.
391 ; Tibbs v. Allen, 27 111. 119; and
remarks in Bigelow on Estoppel, 2d
ed. 124.
' Windsor v. McVeigh, cited infra,
§ 796.
* McCormick v. Sullivant, 10
Wheat. 192; Morse v. Presby, 25 N.
H. 299 ; Carleton v. Ins. Co. 85 N. H.
162; Coit V. Haven, 30 Conn. 190;
Hartman v. Ogborn, 54 Penn. St. 120;
Clark V. Bryan, 16 Md. 171 ; Simmons
V. McKay, 5 Bush, 25; Callen v. Elli-
son, 13 Oh. St. 446 ; Moffitt v. Mof-
fitt, 69 111. 641 ; Rice v. Brown, 77
m. 549 ; Hahn v. Kelly, 84 Cal. 891;
35 Cal. 538; McCauley v. Fulton, 44
Cal. 355; Smith v. Wood, 37 Texas,
616 ; though see Comstock ,v. Craw-
ford, 3 Wall. 897, where it was held
that the jurisdictional recit^ of a
36 ■
statutory probate court were only
prima facie evidence of the facts re-
cited.
* Sheldon v. Wright, 6 N. Y. 497;
Fitshugh V. McPherson, 9 Gill & J.
51.
6 Thompson v. Whitman, 18 Wall.
457; Knowles v. Gaz. Co. 19 Wall.
58.
« Hill V. Mendenhall, 21 Wall. 453.
That in such cases the plea must be
special, see Price v. Hickok, 39 Vt.
292 ; Aldrich v. Kinney, 4 Connect.
380; Shumway v. Stillman, 4 Cow.
292, 447; Starbuck v. Murray, 5 Wend.
148 ; Bimeler b. Dawson, 4 Scam.
536.
' Shelton v. Tiffin, 6 How. U. S.
163; Watson v. Bank, 4 Mete. 343;
Bodurtha v. Goodrich, 3 Gray, 508;
Denison v. Hyde, 6 Conn. 508 ; Kerr
V. Kerr, 41 N. Y. 272; Brown v. Nich-
oft, 42 N. Y. 26 ; Westcott v. Brown,
13 Ind. 83 ; Lawrence v. Jarvis, 32
111. 304; Harshey v. Blackmarr, 20
Iowa, 161 ; Warren v. Lusk, 16 Mo.
CHAP. X.] WHEN JUDGMENTS MAY BE IMPEACHED. [§ 796.
And where the record does not show service, the judgment is
not admissible against the party not served.^ It should be added,
that it is not as to service only that a court, even of superior
jurisdiction, may so transcend its powers, that its judgment may
be collaterally impeached. " All courts," says a learned judge
of the supreme court of the United States, giving the opinion of
the court in a case decided in 1876,^ " even the highest, are more
or less limited in their jurisdiction ; they are limited to partic-
ular classes of actions, such as civil or criminal ; or to particular
modes of administering relief, such as legal or equitable ; or to
transactions of a special character, such as arise on n^,vigable
waters, or relate to the testamentary disposition of estates ; or to
the use of particular process in the enforcement of these judg-
ments.* Though the court may possess jurisdiction of a cause,
of the subject matter and of the parties, it is still limited in its
modes of procedure and in the extent and character of its judg-
ments. It must act judicially in all things, and cannot then
transcend the power conferred by the law. If, for instance, the
action be upon a money demand, the court, notwithstanding its
complete jurisdiction over the subject and parties, has no power
to pass judgment of imprisonment in the penitentiary upon the
defendant. If the action be for a libel or personal tort, the court
cannot order in the case a specific performance of a contract. If
the action be for the possession of real property, the court is
powerless to admit in the case the probate of a will. Instances
of this kind show that the general doctrine stated by counsel is
subject to many qualifications. The judgments mentioned, given
in the cases supposed, would not be merely erroneous, they would
be absolutely void, because the court in rendering them would
transcend the limits of its authority La those cases.* So it was
102 ; Baker v. Stonebraker, 34 Mo. Bonal liability to the plaintiff of the
172; Watson v. Hopkins, 27 Tex. parties proceeded against by publica-
637. See Wiley v. Pratt, 23 Ind. tion." Bradley, J., Board of Public
628. Works v. Columbia College, 17 Wall.
^ " A personal judgment, rendered 521.
in one state against several parties ^ Windsor v. McVeigh, Alb. L. J.
jointly, upon service of process on Jan." 6, 1877.1 See cases infra, § 893.
some of them, or their voluntary aJT- » Norton- b. Meador, Circuit Court
pearance, and upon publication against for California.
the others, is not evidence, outside of * See the /language of Mr. Justice
the state where rendered, of any per- Miller^ .thfe same purport, in the
37
§ 797.] THE LAW OF EVIDENCK. [BOOK U.
held by this court in Bigelow v. Forrest,^ that a judgment in a
confiscation case condemning the fee of the property was void
for the remainder after the termination of the life estate of the
owner. To the objection that the decree was conclusive that the
entire fee was confiscated, Mr. Justice Strong, speaking the
unanimous opinion of the court, replied : ' Doubtless, a decree of
a court having jurisdiction to make the decree cannot be im-
peached collaterally ; but, under the act of Congress, the district
court had no power to order a sale which should confer upon
the purchaser rights outlasting the life of French Forrest (the
owner) ^ Had it done so, it would have transcended its jurisdic-
tion.' ^ So a departure from established modes of procedure will
often render the judgment void ; thus, the sentence of a person
charged with felony, upon conviction by the court, without the
intervention of a jury, would be invalid for any purpose. The
decree of a court of equity upon oral allegations, without written
pleadings, would be an idle act, of no force beyond that of an
advisory proceeding of the chancellor. And the reason is, that
the courts are not authorized to exert their power in that way."
§ 797. Whenever a party seeks to avail himself of a former
Former judgment, fraudulently entered, the opposite party may
maf be"' show the fraud and thus avoid the judgment. In crim-
avoided on i^al issues this IS Settled law. An acquittal or convic-
prool of _ • • iJ!
fraud. tion a party manages to have entered against himseu,
is no bar to a second prosecution.^ The same reasoning applies
to civil issues, in cases in which a party, suing for a just debt,
finds himself confronted by a judgment entered against him in
a suit fraudulently and coUusively brought in his name, but with-
out his authority.* If an attorney should fraudulently bring suit
case of Ex parte Lange, 18 Wall. State v. Davis, 4 Blackf. 845; State
163. 0. Atkinson, 9 Humph. 677; State v.
1 9 Wall. 351. Colvin, 11 Humph. 599; Ellis v. Kel-
» 9 Wall. 350. ly, 8 Bush, 621 ; State v. Jones, 7 Ga.
» JR. V. Davis, 12 Mod. ?; R. u. 422; State w. Cole, 48 Mo. 70.
Purzer, Say. 90; State v. Little, IN. ^ "It is also important to hear in
H. 257; State v. Brown, 16 Conn, mind that the validity of a judgment
54; Com. o. Alderman, 4 Mass. of a court of competent jurisdiction,
477; Com. v. Jackson, 2 Va. Cas. upon parties legally hefore it, may be
601; Bubson v. People, 31 HI. 409; questioned on the ground that it was
Dunlap J). Cody, 31 Iowa, 260 ; Hul- pronounced through fraud, connivance,
verson v. Hutchinson, 89 loym, 316 ; or covin of any description, or not in
38 ^
CHAP. X.J WHEN JUDGMENTS MAY BE IMPEACHED.
[§ 79T.
in the name of a party, and should suffer judgment to be taken
against such party, it would be a gross perversion of justice to
hold that such party, afterwards suing in ignorance of such judg-
ment, could not set up its fraud when it is sprung upon him on
trial by the defendant. In accordance with this view, we find
numerous cases in which the right of a party to attack for fraud
a fraudulent judgment is declared. In such case, however, the
evidence must be plain, and the fraud must be directed against
the rights of an innocent party.^ In conformity with this view,
it has been held by the supreme court of the United States, that
a nominal plaintiff who brings suit for the use of his assignee,
cannot, by a dismissal of such suit by agreement, however solemn,
with the defendant, bar the plaintiff's right to institute a second
suit on the same cause of action.^ So by the same high tribunal
it has been recently determined that where a judgment is entered
by agency of an unauthorized attorney, it may be avoided by set-
ting up this defence in a special plea.^ No doubt we have sev-
eral cases which contain rulings apparently impugning the posi-
tion that has been just announced.* Independently, however, of
a real Buit, or if pronounced in a
real and substantial suit between par-
ties who were really not in contest
with each other. Earl of Bandon v.
Becher, 3 C1.& F. 510." Powell's Evi-
dence, 4th ed. 231.
1 Bayley v. Buckland, 1 Exch. R.
1 ; Thatcher v. D'Aguilar, 11 Exch.
R. 436 ; Reynolds v. Howell, L. R. 8
Q. B. 398; Hubbart v. Phillips, 13
M. & W. 703 ; Smith v. McKean, 26
Me. 411; Beekley v. Newcomb, 24
N. H. 359; Hawley v. Mancius, 7
John. Ch. 182; Davis v. Headley, 22
N. J. Eq. 115; Martin v. Rex, 6 S.
& R. 296; Hall v. Hamlin, 2 Watts,
354; Ulrich v. Voneida, 1 Penn. R.
250; Hartman v. Ogborn, 54 Penn.
St. 620 ; Com. v. Trout, 76 Penn. St.
379 ; Whetstone v. Whetstone, 31
Iowa, 276; Hulverson v. Hutchinson,
39 Iowa, 316 ; Scranton v. Stewart,
52 Ind. 68; Field v. Flanders, 40 111.
470; Martin v. Judd, 60 111. 78; Cox
V. Hill, 3 Ohio, 411 ; Ellis v. Kelly,
8 Bush, 621; Hayes f. Shattuck, 21
Cal. 51; Edgell v. Sigerson, 20 Mo.
494 ; Thouvenin v. Rodrigues, 24
Tex. 468 ; Morris v. Halbert, 36 Tex.
19. See Lowry v. McMillan, 8 Penn.
St. 157; Henck w. Todhunter, 7 Har.
& J. 275; Stell v. Glass, 1 Ga. 475;
Dalton V. Dalton, 33 Ga. 243.
' Welsh V. Mandeville, 1 Wheat.
233.
» Hill V. Mendenhall, 21 Wall.
453.
* See Christmas v. Russell, 5 Wall.
290; Granger v. Clark, 22 Me. 130;
Davis V. Davis, 61 Me. 396 ; Atkin-
sons V. Allen, 12 Vt. 624 ; McRae v.
Mattoon, 13 Pick. 53; Krekeler v.
Ritter, 62 N. Y. 372; Anderson v. An-
derson, 8 Ohio, 108; Smith v. Smith,
22 Iowa, 516; Kelley u. Mize, 3 Sneed,
59. And see other cases cited infra,
§ 803.
39
§ 798.] THE LAW OF EVIDENCE. [BOOK II.
the fact that these cases refer to actions governed by common
law and not by equity, we may reconcile them, even at common
law, with the principle asserted above, by holding that fraud can-
not be collaterally set up by a party to a judgment in any case
in which he is either directly or constructively, either by action,
or by want of vigilance when he was bound to be vigilant, a
party to the fraud. That when an innocent person, who is not
chargeable with laches, is defrauded by a judgment entered
against him by unauthorized parties, he can have no relief in
those cases where such a judgment is sprung on him collaterally,
cannot be rightfully maintained either in equity or at common
law ; and it is in this sense that we must understand Chancellor
Kent, when in a case already cited,^ he declares that a party can-
not collaterally impeach a judgment except in cases of frand.^ It
is agreed generally that fraud can always be set up by strangers
to the judgment.^
§ 798. It must be remembered at the same time, that when a
party has the opportunity of applying to the court entering the
judgment to open it, he must do so, and cannot resort to a col-
lateral attack. Thus in a case decided in New York, in 1876, it
is said by a learned judge : " The judgment could not be im-
peached collaterally, nor could the same facts be retried between
the same parties. The offer of the plaintiff was in effect to re-
try the issue. Judgments may be impeached in equity for fraud,
but for no other reason.* The remedy of the plaintiff was by
application for a retrial in the superior court, or for other relief
if the judgment had been procured by false or mistaken testi-
mony, and other evidence had been discovered by which the
truth could be established." ^ " The power of the supreme court
to annul a judgment or decree for fraud in procuring it," so it is
' Hawley i). Mancius, 7 Johns. Ch. 187; Great Palls Co. i». Worster, 45
182. N. H. 110 ; Atkinson «. Allen, 12 Vt.
' See, as containing intimations to 619; Mitchell v. Eintzer, 8 Barr, 216;
the same effect, Bandon v. Becher, 8 Thompson's Appeal, 67 Penn. St.
CI. & F. 479. 175; De Armond v. Adams, 25 Ind.
* K. V. Duchess of Kingston, 20 455; Callahan v. Griswold, 9 Mo.
How. St. Tr. 544; Phillipson v. Eg- 775. Supra, § 760.
remont, 6 Q. B. 605; Perry «. Med- * Davoue v. Fanning, 4 J. Ch. 199.
dowcroft, 10 Beav. 122; Harrison v. » Krekeler v. Ritter, 62 N. Y. S72,
Southampton, 4 De Gex, M. & G. 374, 375, Allen, J.
40
CHAP. X.] JUDGMENTS AND AWARDS. [§ 800.
said by another learned judge of the same court, " is undoubted,
although the jurisdiction is carefully limited and guarded, and
will only be exercised in clear cases. The jurisdiction in one
court, to vacate, in an independent proceeding, the judgment of
another having power to render it, is in its nature so extraordi-
nary as to demand a close adherence to principles and precedents
in exercising it. Courts do not exercise it when there has been
negligence on the part of the party seeking the relief. That a
judgment is final and conclusive of the right or thing adjudicated
by it is the rule ; and judgments and decrees of a competent
court will not be annulled for a suspicion of fraud, or because
the party complaining may in fact have been unjustly cast in
judgment." ^
§ 799. Mere irregularities, however, in a record, will not be
ground for collaterally impeaching a judgment, unless But not for
such irregularities show want of jurisdiction, or afford ™eguiari-
a presumption of fraud, or exhibit a gross violation of ''^^■
the ordinary rules of justice.^ Thus, it is n6 objection to a judg-
ment record offered in evidence, that the record shows that the
cause was tried without the intervention of a jury, and did not
show that the jury had been waived in the mode provided by
the statute ; it being held, that though this error might be fatal
in a direct revision, it could not be attacked collaterally.^
m. AWARDS.
§ 800. An award of arbitrators or referees, duly appointed,
is as conclusive on parties and privies as is a judgment.* Awards
When the award is final and is ostensibly on all the the^orceof
matters submitted, the presumption is that the arbitra- jadgments.
1 Andrews, J., Smith v. Nelson, 62 * Maxwell v. Stewart, 21 Wall.
N. Y. 288, citing Stilwell v. Carpenter, 71.
59 N. Y. 414; Foster v. Wood, 6 John. * Doe v. Rosser, 3 East, 15; Com-
Ch. 89; Simpson v. Howden, 3 Myl. mings v. Heard, 10 B. & S. 606; S. C.
& Cr. 108; Powers u. Butler, 3 Green's L. K. 4 Q. B. 669; Pease v. Whitton,
Ch. 465; Dobson v. Pearce, 12 N. Y. 31 Me. 117; Lloyd v. Barr, 11 Penn.
157. St. 41. See Ravee v. Farmer, 4 T.
" Bragg V. Lorio, 1 Woods, 209; R. 146; Bates u. Townley, 2 Exc. K.
Wood V. Wilson, 4 Houst. (Del.) 94 ; 162; NewaU v. Elliot, 1 H. & C. 797;
Bigelow V. Barre, 30 Mich. 1 ; Bates Darlington v. Gray, 5 Wharton R,
V. Spooner, 45 Ind. 489; McCauley v. 487.
Harvey, 49 Cal. 497. Supra, § 796.
§ 801.]
THE LAW OF EVIDENCE.
[book II.
tor disposed of all such matters referred.^ So when an arbitrator
has not transcended his authority ; ^ whether he be a professional
or non-professional man,^ the court will not interfere with his
award.* It is essential, in such case, however, that the award
should be certain,^ and practicable.^ Even an arbitration in pais,
when submitted to and accepted by the parties, cannot be im-
peached, except on proof of fraud or gross irregularities.'' An
award, like a judgment in a civil suit, cannot, in order to prove
the facts it avers, be put in evidence in a criminal prosecution.*
It has also been held that an award, under the English practice,
unlike a verdict or judgment, cannot be received as evidence in
the nature of reputation.^
§801.
Foreign
judgments
tn perso-
nam are
conclusive.
IV. JUDGMENTS OF FOREIGN AND SISTER STATES.
Whatever may at former periods have been regarded
as the law in England, it is now settled in that country
that the final judgment of a foreign court is conclusive
on the merits if such judgment be for a definite sum ; ^^
and this even though the judgment proceeded on a mis-
taken notion of English law.^i This result, however, was not
reached without hesitation, and at one time there was an incli-
nation to hold that a foreign judgment is not to be treated a3
constituting a record debt, but only as evidence of a simple
8 R. V. Fontaine Moreau, 11 Q. B.
1028.
1 Bhear v. Harradine, 7 Ex. R. 269 ;
Harrison v. Creswick, 13 C. B. 399;
Jewell V. Christie, L. R. 2 C. P. 296.
2 Stroud, in re, 8 C. B. 518.
» Fuller V. Fenwick, 3 Com. B. 705,
711, per Wilde, C. J.; In re Brown &
Croydon Can. Co. 9 A. & E. 526, per
Ld. Denman.
* Toby V. Lovibond, 5 Com. B. 784,
per Wilde, C. J.; Barrett v. Wilson,
1 C, M. & R. 586 ; Johnson v. Durant,
2 B. & Ad. 925; Phillips v. Evans, 12
M. & W. 309.
« Williams v. Wilson, 9 Ex. R. 90.
" Wenman v. Mackenzie, 5 E. & B.
447, per Ld. Campbell ; Alder v. Sa-
vill, 5 Taunt. 454; Taylor, § 1498.
' Males V. Lowenstein, 10 Oh. St.
512; Burrows v. Guthrie, 61 111. 70;
Reynolds v. Roebuck, 87 Ala. 408.
42
0 Evans v. Rees, 10 A. & E. 151 ; 2
2 P. & D. 627, S. C. ; R. v. Cotton, 3
Camp. 444 ; Wenman v. Mackenzie, 5
E. &B. 447; Taylor,- § 1498.
" Bank of Australasia v. Kias, 16
Q. B. 71 7 ; Patrick v. Shedden, 2 E. &
B. 14 ; Scott V. Pilkington, 2 Best &
S. 11; Paul V. Roy, 15 Beav. 433;
Arnott V. Redfern, 3 Bing. 363; Dog-
lioni V. Crispin, L. R. 1 H. L. 301 ;
Godard v. Gray, L. R. 6 Q. B. 189;
Ricardo v. Garcias, 12 CI. & F. 368;
Castrique v. Imrie, L. R. 4 H. L. 414;
Gen. St. Nav. Co. v. Guillou, 11 Mees.
& W. 877; Simpson v. Fogo, 1 J- &
H. 18 ; S. C. 1 H. & M. 195.
" Godard v. Gray, L. R. 6 Q. B.
139.
CHAP. X.] FOREIGN JUDGMENTS. [§ 801.
contract debt.^ But it was finally decided by the house of
lords,2 and by the judicial committee of the privy council,^ that
the home tribunal cannot act as a court of appeal from the for-
eign tribunal; i. e. a foreign judgment cannot be impeached as
being erroneous on the merits or founded on a mistake either of
fact or law. The question, however, was reserved whether when
a foreign court wilfully refuses to apply Englis i law, when by
the comity of nations it is applicable, the judgment of such for-
eign court is then impeachable in an English court. In the opin-
ion of Lord Hatherley it is.* To entitle such judgments to be
accepted as binding, however, they must be entered in conform-
ity with the settled principles of private international law.^
Among these principles are the following : —
(1.) The court, in personal actions, must have jurisdiction of
the person of the party affected.^
(2.) The court, in real actions, must have jurisdiction of the
thing. \
(3.) The parties interested must have had opportunity to
come in and be heard.'^
(4.) The judgment, if in personam, and for a pecuniary claim,
must be for a fixed sum.^
That a plaintiff can rely on a foreign judgment, as the basis
of a suit, and that this judgment is at least primd facie ^^^^ ^j_
proof of his claim, is admitted by all Anglo-American fered for
, , ' . .,. f mi plaintiff.
courts by whom the question is discussed, ihe con-
troversy which has been just noticed is as to the conclusiveness
of such foreign judgment. Mr. Smith, in an authoritative note
to the Duchess of Kingston's case, has presented the arguments
1 Hallu. Odber, 11 East, 124 ; Plum- 55; Castrique v. Imrie, L. R. 4 H. of
mer v. Woodburne, 4 B. & C. 625 ; L. 428; Bischoff w. We hered, 9 Wall.
Smith V. NicoUs, 5 Bing. N. C. 208. 812 ; Whart. Confl. of L. 792.
= Castrique v. Imrie, L. R. 4 H. L. « Infra, § 803.
415. See Imrie v. Castrique, 8 C. ' See Whart. Confl. of Laws, § 793;
B. N. S. 405, overruling Castrique r. and see Rebstock v. Rebstoek, 2 Pitts.
Imrie, Ibid. I. (Penn.) 124; Crafts v. Clark, 31 Iowa,
» Messina v. Petrococchino, L. R. 77. And see supra, § 796.
4 P. C. 150; 41 L. J. P. C. 27 ; 20 W. ^ Henderson v. Henderson, 6 Q. B.
R. 451. 288; Sadler i'. Robins, 1 Camp. 253.
* See Simpson v. Fogo, 1 J. & H. That it may be for costs, see Russell
18. Powell's Ev. 4th ed. 129. v. Smyth, 9 M. & W. 810; though see
6 Shaw V. Gould, L. R. 3 H. of L. Sheehy «. Ass. Co. 2 C. B. (N. S.) 211.
43
§ 801.]
THE LAW OF EVIDENCE.
[book n.
on both sides with his usual clearness. " Now, upon one side it
is said, that the tribunals of this country are not hound to enforce
the judgments of a foreign court ; that when they do so, it is
de gratid, and from a wish to extend the limits of justice — am-
pliare Justitiam. But that it would be to amplify injustice,
were they to enforce a sentence which ought never to have been
pronounced, because against the party with whom right was.
On the other side, it is answered with great force, that invariable
experience shows, that facts can never so well be inquired into
as on the spot where they arose, laws never administered so sat-
isfactorily as in the tribunals of the country governed by them ;
that if our courts were to allow matters judicially decided upon
to be again opened at any distance of time or place, the conse-
quence would be, in ninety-nine cases out of a hundred, that they
would be deceived by the concoction of testimony, or by the
abstraction of it, or by the want of it, and that injustice and
mistakes, instead of being amended, would be generated." ^
before the court upon the whole evi-
dence, may have been decidedly in
favor of the judgment; upon a partial
possession of the original evidence,
they may now appear otherwise. Sup-
pose a case purely sounding in dam-
ages, such as an action for an assault,
for slander, for conversion of property,
for a malicious prosecution, or for crim-
inal conversation ; is the defendant to
be at liberty to re-try the whole mer-
its, and to make out, if he can, a new
case upon new evidence 1 Or is the
court to review the former decision,
like a court of appeal, upon the old
evidence ? In a case of covenant or
of debt, or of a breach of contract, are
all the circumstances to be reexam-
ined anew ? If they are, by what laws
and rules of evidence and principles
of justice is the validity of the original
judgment to be tried ? Is the court
to open the judgment, and to proceed
ex aequo et bono f Or is it to admin-
ister strict law, and stand to the doc-
trines of the local administration of
justice ? Is it to act upon the rules
1 2 Smith's L. C. 686. The de-
crees of foreign courts in equity, it is
said, are open to more doubt than are
the judgments of foreign courts of law;
but it has been intimated that an Eng-
lish court of chancery would, in a
proper case, entertain a bill founded
on such foreign decree, for the pur-
pose of giving effect to it in regard to
English property. Henderson v. Hen-
derson, 6 Q. B. 297, per Ld. Den-
man; Houlditch V. M. of Donegal, 8
Bligh N. S. 301; 2 CI. Sc Fin. 470;
Lloyd & G. 82, S. C.
Judge Story, in a well known pas-
sage in his Conflict of Laws, thus
urges the conclusiveness of foreign
judgments. " It is, indeed," says he,
" very difficult to perceive what could
be done, if a different doctrine were
maintainable to the full extent of
opening all the evidence and merits
of the cause anew, on a suit upon the
foreign judgment. Some of the wit-
nesses may be since dead; some of the
vouchers may be lost or destroyed.
The merits of the case, as formerly
44
CHAP. X.]
FOREIGN JUDGMENTS.
[§ 801.
A foreign judgment in personam, it should be remembered,
may come into court, when adduced by the defendant. When of-
in two ways : (1.) The plaintiff, having obtained judg- defendant.
of evidence acknowledged in its own
jurisprudence, or upon those of the
foreign jurisprudence ? These and
many more questions might be put to
show the intrinsic difficulties of the
subject. Indeed, the rvile, that the
judgment is to he prima facie evidence
for the plaintiff, would be a mere de-
lusion, if the defendant might still
question it by opening all or any of
the original merits on his side; for,
under such circumstances, it would be
equivalent to granting a new trial.
It is easy to understand, that the de-
fendant may be at liberty to impeach
the original justice of the judgment,
by showing that the court had Tio ju-
risdiction; or that he never had any
notice of the suit; or that it was pro-
cured by fraud ; or that upon its face
it is founded in mistake; or that it is
irregular, and bad by the local law,
fori rei judicatae. To such an extent
the doctrine is intelligible and practi-
cable. Beyond this, the right to im-
pugn the judgment is in legal efEect
the right to re-try the merits of the
original cause at large, and to put the
defendant upon proving those merits."
Story, Confl. of Laws, § 607.
Mr. Taylor (§ 1563) thus marshals
the English authorities on this contro-
versy. It has several times been held
by the court of the queen's bench ;
Henderson v. Henderson, 6 Q. B. 288,
298, 299; Ferguson v. Mahon, 11 A. &
E. 179, 183 ; 3 P. & D. 143, S. C; Bk.
of Australasia v. Nias, 16 Q. B. 717;
Munroe u. Pilkington, 31 L. J. Q. B.
81; 2 B. & S. 11, S. a, mm. Scott
V. Pilkington; once by the court of
common pleas ; Vanquelin v. Bouard,
15 Com. B. N. S. 341 ; 33 L. J. C. P.
78, S. C. ; and once by the court of
exchequer; De Cosse Brissac v. Rath-
bone, 6 H. & N. 301 ; 30 L. J. Ex.
238, S. C. ; that no inquiry can be in-
stituted into the merits of the original
action, or the propriety of the deci-
sion, and that the defendant is not at
liberty to raise any objection, which
would have constituted a defence in
the foreign court, and which, conse-
quently, should there have been plead-
ed and finally disposed of. The same
doctrine, too, has been advanced with
more or less confidence, by Lord Not-
tingham (Gold V. Canham, cited in
note to Kennedy v. Cassillis, 2 Swanst.
325), Lord Kenyon (Galbraith v. Nev-
•ille, 1 Doug. 6, n.), Lord EUenbor-
ough (Tarleton v. Tarleton, 4 M. &
Sel. 22), Sir L. Shadwell (Martin v.
Nicholls, 3 Sim. 458), Lord Wensley-
dale (citing Martin v. NicoUs, in Bec-
quet V. MacCarthy, 2 B. & Ad. 954),
and the court of exchequer of Ireland
(Sims V. Thomas, 3 Ir. Law R. 415).
On the other hand. Lord Jiardwicke
(Isquierdo v. Forbes, cited by Lord
Mansfield in 1 Doug. 6) , Lord Mans-
field (Walker v. Witter, 1 Doug. 1),
Chief Baron Eyre (Phillips v. Hunter,
1 Doug. 1), Mr. Justice Buller (Gal-
braith V. Neville, 1 Doug. 6, n.; Mes-
sin 0. Ld. Massareene, 4 T. R. 493),
Mr. Justice Bayley (Tarleton v. Tarle-
ton, 4 M. & Sel. 23), and especially
Lord Brougham (Houlditch v. M. of
Donegal, 8 Bligh N. S. 301, 337-342 ;
2 CI. & Fin. 470, 477-479, S. C; Den
V. Lippmann, 5 CI. & Fin. 1, 20-22),
have strenuously argued that such
judgments are only prima facie proof
of the facts they aver.
An elaborate view of the same topic
will be found in Bigelow on Estop-
pel, chap. iv.
45
§ 801.] THE LAW OF EVIDENCE. [BOOK II.
ment in the same cause of action in a foreign court, sues in
the home court on such cause of action, saying nothing about
the foreign judgment. In such case it has been ruled that the
defendant cannot set up the foreign judgment, if unsatisfied (as
he could a domestic judgment), as a defence. The plaintiff, such
is the reason given, has no higher remedy in consequence of the
foreign judgment, and he cannot issue immediate execution upon
it in this country, but can only enforce it by bringing a fresh
action on contract.^ It is however settled, that if the foreign
judgment has been satisfied, this will bar the suit.^ In such case,
however, as the plaintiff elects to sue on the contract, and not on
the judgment, the contract may be disputed by the defendant.^
(2.) If, to a suit on an ordinary cause of action, the defendant
adduces a foreign judgment, on the same cause of action, in his
favor, this, if properly pleaded, will bar the suit.* In such case,
however, although the plea, in England, need no longer set forth
the proceedings and judgment at length,^ nor contain, as formerly
was the case,^ any formal commencement or conclusion ; yet if it
contain no averment that the plaintiff was, at the commencement
of the foreign suit, subject to the jurisdiction of the foreign
country by reason of allegiance, domicil, or temporary presence,'
or that the foreign court had jurisdiction over the subject matter
of the suit, or that, by the law of the foreign country, the judg-
ment recovered was final and conclusive, so as to be an absolute
bar to a fresh action ; ^ or that the matters in issue in the foreign
court were identical with those sought to be put in issue in the
present suit ; ^ in any of these cases, the plea will be exposed to
the risk of being held bad on demurrer.^" On the other hand, if
the defendant, instead of pleading judgment, contents himself
1 See infra, § 805, and see Smith w. « Eicardo v. Garcias, 12 CI. & Fin.
Nicolls, 5 Bing. N. C. 208, 220, 221; 638.
7 Scott, 147, S. C. ; Wilson v. Dun- « Gen. St. Navig. Co. v. Guillou, 11
sany, 18 Beav. 293. M. & W. 877, 894.
" Barber v. Lamb, 29 L. J. C. P. ' Gen. St. Navig. Co. v. Guillou, 11
234; 8 Com. B. N. S. 95, S. C. M. & W. 877, 894.
» Infra, § 805. s piummer v. Woodburne, 4 B. &
* Phillips V. Hunter, 2 H. Bl. 410, C. 626 ; 7 D. & R. 25, S. C; Frayes
per Eyre, C. J.; Piummer v. Wood- v. Worms, 10 Com. B. N. S. 149.
burne, 4 B. & C. 625; 7 D. & R. 25, » Ricardo v. Garcias, 12 CI. & Fin.
S. C. ; Ricardo v. Garcias, 12 CI. & 868.
Fin. 868. lo Taylor's Ev. § 1548.
46
CHAP. X.] FOREIGN JUDGMENTS. [§ 803.
with putting it in evidence, it is subject to the contingencies to
which, according to local practice, a domestic judgment, when
not pleaded, is subject.^
§ 802. In this country we have many rulings to the effect that
foreign judgments are onlj primd facie evidence of debt, though
most of these rulings rest upon English cases to the same effect,
which cases are now, in England, overruled.^ In New York,
however, we have a recent ruling, accepting the final conclusions
of the English courts, and holding that a foreign judgment in
personam binds parties appearing before the court rendering the
judgment, wh^n such court has jurisdiction.^ Such, on the prin-
ciples of private international law now prevalent, is the better
view, assuming always, as will presently be more fully seen,
that the court rendering judgment had jurisdiction, and the par-
ties were duly before the court.
§ 803. A foreign judgment, as we have seen,* is always im-
peachable for want of jurisdiction ; ^ and hence, for impeach-
want of personal service, within the jurisdiction, on the %^l^ °f
defendant, this being internationally essential to juris- j^^ gj?"
diction.^ Thus where a settlement was made in Eng- fra^'i-
' See supra, § 765. incidentally involved, they have the
2 Middlesex Bank v. Butmann, 29 same conclusiveness as domestic judg-
Me. 19 ; Rankin v. Goddard, 54 Me. ments ; and in Cummings v. Banks, 2
28 ; Taylor v. Barron, 30 N. H. 78 ; Barb. 602, it is said that all the Amer-
Boston Co. V. Hoitt, 14 Vt. 92; Bart- ican authorities agree in this propo-
lett V. Knight, 1 Mass. 400; Bissell v. sition.'' Bige'.ow on Estoppel (2d ed.),
Briggs, 9 Mass. 462; Aldrich v. Kin- 177.
ney, 4 Conn. 380 ; Hitchcock v. ' Lazier v. Westcott, 26 N. Y.
Aicken, 1 Caines, 460 ; Pawling v. 146. See Cummings v. Banks, 2 Barb.
Bird, 13 Johns. R. 192 ; Benton v. 602.
Burgot, 10 S. & R. 240 ; Taylor v. * Supra, § 801.
Phelps, 1 Har. & G. 492 ; Barney « Schibsby «. Westenholz, L. R. 6
V. Patterson, 6 Har.& J. 182; Pritch- Q. B. 165; Novelli v. Rossi, 2 B. &
ett V. Clark, 3 Har. (Del.) 517; Wil- Ad. 757; Blackburn, J., Castrique v.
liams V. Preston, 3 J. J. Marsh. 600; Imrie, 39 L. J. C. P. 358 ; Shelton v.
Garland v. Tucker, 1 Bibb, 361; Tiffin, 6 How. 163; Carleton «. Bick-
Clark V. Parsons, Rice, 16; Bimeler ford, 13 Gray, 591; Polger v. Ins. Co.
II. Dawson, 4 Scam. 536. See Burn- 99 Mass. 266 ; Borden v. Fitch, 15
ham t). Webster, 1 Wood. & M. 172. Johns. R. 121; Andrews i;. Herriot,
It should be noticed that, " in two of 4 Cow. 524 ; Kerr v. Kerr, 41 N. Y.
the cases just cited (Barney v. Patter- 272.
son, and Taylor v. Phelps), it is said ' Ferguson v. Mahan, 11 Ad. & E.
that, when foreign judgments are only 179; Don v. Lippman, 5 CI. & Fin.
47
§ 803.J
THE LAW OF EVIDENCE.
[book n.
land on a marriage between a Turk domiciled in England and an
English lady, the former promising to reside always in England,
Hall, V. C, held that a Turkish court could not, by a decree of
divorce pronounced without notice to the wife or other persona
interested under the settlement, make void the settlement.^ So
it has been held, that a foreign judgment can be contested, even
by parties and privies, for fraud in its concoction ; ^ or for its
flagrant violation of justice ; ^ or for non-identity of subject
matter ; * or for incurable defectiveness or obscurity ; ^ or for
manifest errors in its processes ; ^ or for any violation of the
principles of international law.''
1 ; Cavan v. Stewart, 1 Stark. 525;
Houlditch W.Donegal, 8 Bligh N. S.
338 ; Vallee v. Dumergue, 4 Ex. 290;
Brook, in re, 16 Com. B. N. S. 403;
Kuehling v. Lebermann, 2 Weekly
Notes, 616; Kerr v. Condy, 9 Bush,
372.
A plea to the jurisdiction, in order
to be good, must aver that the defend-
ant was not a subject of the foreign
state, or resident, or even present in
it, at the time when the proceedings
were instituted, so that he could not
be bound, by reason of allegiance, or
domicil, or temporary presence, by
the decision of the courts. Gen. Nav.
Co. V. Guillou, 11 M. & W. 894; Cowan
V. Braidwood, 1 M. & Gr. 892, 893,
per Tindal, C. J. ; Russell v. Smyth,
9 M. & W. 810 ; Reynolds v. Fenton,
3 Com. B. 187. If true, it may be
in addition averred that the defend-
ant had no notice of the suit. Cow-
an i;. Braidwood, 1 M. & Gr. 893.
It has been further said (though
this position, except in suits com-
menced by attachment, cannot be
maintained, at least in the United
States), that the plea must allege that
the defendant was not the owner (see
Taylor's Evidence, § 1587) of real
property in such state ; for otherwise,
since his property would be under the
protection of its laws, he might be
48
considered as virtually present though
really absent. Cowan v. Braidwood,
1 M. & Gr. 882 ; 2 Scott N. R. 138,
S. C. ; Douglas v. Forrest, 4 Bing.
686, 701-703; 1 M. & P. 663, S. C.
1 CoUiss V. Hector, L. R. 19 Eq.
334 ; 23 W. R. 485 ; 44 L. J. Oh.
267 ; Powell's Evidence (4th ed.),
234.
" Phillimore Int. Law, iv. 678.
See Wood v. Watkinson, 17 Conn.
600 ; Welsh v. Sykes, 3 Gilm. 197.
' Price V. Dewhurst, 8 Sim. 279 ;
Ferguson ». Mahon, 11 Ad. & E. 181;
Henderson v. Henderson, 6 Q. B.
298; Cowan v. Braidwood, 1 M. &
Gr. 895; Windsor «. McVeigh, supra,
§ 796.
* Ricardo v. Garcias, 12 CI. & Fin.
368. See Burnham v. Webster, 1
Wood. &M. 172.
6 Obicini v. Bligh, 8 Bing. 335.
' Reimers v. Druce, 23 Beav. 145 ;
Simpson v. Fogo, 1 Johns. & Hem.
18; 1 Hem. &M. 195; Windsor v. Mc-
Veigh, supra, § 796.
' Shaw V. Gould, L. R. 3 H. of L.
55; Bank w.Nias, 16 Q. B. 717; Bar-
ing V. Clagett, 3 B. & P. 215 ; Wolff i'.
Oxholm, 6 M. & Sel. 92; Simpson v.
Fogo, 1 Johns. & Hem. 18; 1 Hem. &
M. 195 ; Kerr v. Condy, 9 Bush, 372.
When the want of service is to be
taken advantage of by plea, it is nee-
CHAP. X.]
FOREIGN JUDGMENTS.
[§ 805.
§ 804. We will elsewhere see,^ that the proceedings of courts
of justice are presumed to be regular, until the contrary jnrisdio-
appears. This presumption is applicable so far to for- gu™e^""
eign judgments, that if the record itself is regular, a !^ prooeed-
party, suing on such judgment, need not allege in his regular,
declaration, either that the foreign court had jurisdiction over
the parties or the cause,^ or that the proceedings had been prop-
erly conducted.^ On the other hand, as we have seen, there are
English cases intimating that it is still necessary for a defendant
to state these particulars, when he pleads such judgment by way
of estoppel or justification.*
§ 805. Whether a foreign judgment, entered on a debt, merges
the debt, is a question which has been already dis- Foreign
cussed. It has been argued that when the foreign court {g*^^"*".'
has jurisdiction in personam, there is such a merger;^ s^"^-
but recently this has been doubted, and it has been held,^ that a
plaintiff, who has obtained a foreign judgment in his favor, may
either resort to such original cause, or bring an action on con-
tract upon the judgment.'^ At the same time, as has been prop-
essary, so it has been held in Eng-
land, for the defendant to negative
every state of facts on which the judg-
ment can be supported. It is, there-
fore, prudent to aver, that, without
process, the suit in the foreign court
would be a nullity, unless, so it has
been intimated, the plea contains a
distinct averment that the defendant
has had no notice or knowledge what-
ever of the suit. Reynolds v. Fen-
ton, 3 Com. B. 187 ; Sheehy v. The
Profess. Life Assur. Co. 13 Com.
B. 787 ; Maubourquet v. Wyse, L. R.
1 C. L. 471. It will, at the same
time, be remembered that, in Fergu-
son V. Mahon, 11 A. & E. 179; 3 P.
& D. 143, S. C, the plea was held
good , though it merely denied a no-
tice of process ; but Mr. Taylor (§
1540) objects that that case, which
was an action on an Irish judgment,
can only be sustained, if at all, on the
ground that an English court will ju-
VOL. II.
dicially recognize the fact that an ac-
tion must be commenced by process
in Ireland. Reynolds v. Fenton, 3
Com. B. 191, per Maule, J.
1 Infra, § 1302.
2 Robertson v. Struth, 5 Q. B. 941.
' Cowan 0. Braidwood, 1 M. & Gr.
882, 892, 895, per Maule, J.; 2 Scott
N. R. 138, S. C.
*■ CoUe'tt V. Ld. Keith, 2 East, 260;
Gen. St. Navig. Co. v. Guillou, 11 M.
& W. 877. See Ricardo v. Garcias,
12 CI. & Fin. 377. Supra, §§ 801-3.
5 Ricardo v. Garcias, 12 CI. & Fin.
868; McGilvray v. Avery, 30 Vt. 538;
Westlake Priv. Int. Law, art. 393.
8 See supra, § 801.
' Hall V. Odber, 11 East, 118, 126,
127, per Bayley, J. ; Smith v. NicoUs,
5 Bing. N. C. 221, 222, per Tindal,
C. J. ; Bk. of Australasia v. Harding,
19 L. J. C. P. 345; 9 Com. B. 661,
S. C. ; Kelsall v. Marshall, 26 L. J.
C. P. 19; 1 Com. B. N. S. 241, S. C.
49
§ 807.] THE LAW OF EVIDENCE. [BOOK H.
erly observed, when the plaintiff waives the judgment, the de-
fendant, notwithstanding the production of the judgment, may
dispute the plaintiff's demand; for it may well be contended,
that, by this mode of declaring, the plaintiff has himself courted
a reinvestigation of the merits.^
§ 806. What has been said with regard to the right of im'*^
Foreign peaching foreign judgments applies only, it must be
cannotTbe remembered, to cases where the validity of such judg-
colFater- ments comes directly in litigation. It is acknowledged,
ai'y- even by those who hold that a foreign judgment is
open to direct attack, that when it comes up collaterally in ques-
tion, it cannot be disputed.^
§ 807. Judgments of courts of the Confederate States during
the late war are to be treated, it is said, as foreign
Confeder- . , , q -^ , , ,, . . , . . °
ate judg- judgments." cut to this view there is a serious practi-
"^^^ ■ cal objection. It is logical, indeed, to adopt the theory
that the seceding states were never out of the Union, and that
consequently judgments of such states are under the protection
of the federal Constitution. It is also logical to treat the courts
of the Confederate States as out of the pale of the Constitution.
The difiBculty, however, is in pleading. The declaration would
aver a judgment in a state not belonging to the American
Union. Such a declaration would be virtually on a foreign
judgment. But a foreign judgment, rendered in the courts of a
state whose independence our own government has not acknowl-
edged, cannot be recognized as a judgment on which suit can be
brought. The better view is to treat all judgments of distinct-
ively Confederate courts created for national purposes by the
Confederate government as nullities ; but to regard all judg-
ments of duly constituted courts of the seceding states as judg-
ments of states in the Union, unless when such judgments in
some way impair the rights of the federal government, or of cit-
izens under the Constitution.*
See Middlesex Bank u. Butman, 29 Me. ' Pepin w. Lachenmeyer, 45 N. Y.»
19; McVicker «. Beedy, 81 Me. 314. 27; Shaw v. Lindsay, 46 Ala. 290.1
» 2 Smith L. C. 683. Per contra, Penn. v. Tollison, 26 Ark.j
" See Tarleton v. Tarleton, 4 M. & 545.
Sel. 20; recognized, by Lord Brougham * Horn v. Lockhart, 17 Wall. 580.
in Houlditch v. M. of Donegal, 8 Bligh See White v. Cannon, 6 Wall. 443;
N. S. 341 ; 2 CI. & Fin. 478, S. C. Hickman v. Jones, 9 Wall. 197; Steere
60
CHAP. X.]
FOEKIGN JUDGMENTS.
[§ 808.
. § 808. So far as concerns the judgments rendered on the mer-
its in the several states of the American Union, when
re T • • i_ ii-i" ... Judgments
ottered in a sister state as the basis of a suit, it, is now of states of
agreed by the state courts, under the lead of the su- .u"k)™are
preme court of the United States, that nil debet is a ™"<=^"8'^«-
bad plea to such a judgment ; that the proper plea to it is nul
tiel record ; and that it is conclusive on the merits.^ It is nev-
ertheless open to a party to deny the jurisdiction of the court
rendering the judgment ; ^ and as evidencing want of jurisdiction
to aver by plea that the defendant had not been served with
process, or that the attorney is without authority to appear.^
V. Tenney, 50 N. H. 463., See Penny-
wit 0. Kellogg, 1 Cinn. 17. In Ala-
bama it has been held, that a judgment
rendered by a court under the Confed-
erate system would be treated as only
prima facie proof, after reconstruc-
tion. Martin v. Hewitt, 44 Ala. 418;
Mosely v. Tuthill, 45 Ala. 621. In
Arkansas such judgments have been
held void. Penn v. Tollison, 26 Ark.
545; Thompson u.Mankin, 26 Ark. 586.
1 Mills V. Duryee, 7 Cranch, 481;
Hampton v. McConnel, 3 Wheat. 234;
Logansport Gas Co. v. Knowles, 2 Dill.
421 ; MoElmoyleu. Cohen, 13 Pet. 312;
Christmas y. Russel, 5 Wall. 290; Sweet
V. Brackley, 53 Me. 346 ; Rankin v. God-
dard, 54 Me. 28; Bissell v. Briggs, 9
Mass. 462; Com. v. Green, 17 Mass.
515; Hall v. Williams, 6 Pick. 232;
Stockwell V. McCracken, 109 Mass. 84;
Eocco V. Hackett, 2 Bosw. 579; Rogers
ti. Burns, 27 Penn. St. 525; Merchants'
Ins. Co. V. De Wolf, 33 Penn. St. 45.
See Brinkley v. Brinkley, 50 N. Y.
184; De Ende v. Wilkinson, 2 Pat. &
H. 663; Matoon v. Clapp, 8 Oh. 248;
Burnley v. Stevenson, 24 Oh. St. 474;
Indiana v. Helmer, 21 Iowa, 370; Cone
V. Hooper, 18 Minn. 533 ; Walton v.
Sugg, Phil. (N. C.) 98.
2 D'Arcy «. Ketchum, 11 How. 165;
Board of Public Works v. Columbia
College, 17 Wall. 521; Thompson v.
Whitman, 18 Wall. 457; Galpin «.
Page, 18 Wall. 350 ; Knowles v. Gas
Co. 19 Wall. 58; Hill v. Mendenhall,
21 Wall. 453; Hall p. Williams, 6
Pick. 232; Folger v. Ins. Co. 99 Mass.
266 ; Kerr v. Kerr, 41 N. Y. 272 ; Aid-
rich V. Kinney, 4 Conn. 380; Shum-
way V. Stillman, 4 Cow. 292; Star-
buck V. Murray, 6 Wend. 447; Kerr
V. Kerr, 41 N. Y. 272'; Reel v. Elder,
62 Penn. St. 308; Eby's Appeal, 70
Penn. St. 308; Noble v. Oil Co. 2
Weekly Notes; Westcott v. Brown, 13
Ind. 83 ; Lawrence v. Jarvis, J2 111. 304.
•" Ibid.; Watson v. Bank, 4 Mete.
343; Denison u. Hyde, 6 Conn. 508;
Shumway w. Stillman, 6 Wend. 447;
Puckett V. Pope, 3 Ala. 552; Harshey
V. Blackmarr, 20 Iowa, 161.
On this topic we have, in 1876, the
following opinion from the supreme
court of Massachusetts : " It appeared
at the trial in the superior court, that
at the time the suit in Pennsylvania was
commenced and at the time judgment
therein was rendered, both parties were
residents of that state and subject to the
jurisdiction of its courts. The record
of the former suit shows that personal
service was made upon the defendant.
As the court had jurisdiction of the
subject matter and of the parties, the
judgment was conclusive against the
defendant in Pennsylvania, and it is
51
§ 810.J THE LAW OF EVIDENCE. [BOOK II.
§ 809. It follows, therefore,! that what has been said in re-
Such ud ^P^°* *° domestic judgments is applicable, by rea-
ment ma|' son of the provision in the Constitution of the United
byproifof States, to a judgment of one state in the American
n?n-ju?L-. Union, when sued on in another state. Such judg-
diction. ment, as is a domestic judgment, is open to be im-
peached for fraud or want of jurisdiction, or for gross irregular-
ities or perversions of justice.^
V. ADMINISTEA.TION AND PROBATE.
§ 810. We have already said that a judgment as to status is
Letters of "°* necessarily extra-territorially binding. Under this
adminis- head may be noticed the German Todes-JErklarung, or
proof of judicial decferation of death, which, though a protec-
ilot^of're- tion to innocent third persons, is only primd facie
" proof, so far as concerns the parties, of the facts it re-
cites.3 Still less can letters of administration be regarded as
proof of the fact of death of the alleged decedent ; and when
offered, even as between parties or privies, they may be rebutted
and invalidated by proof that the party whom they declared to be
dead was really alive.* There is no question that, so far as con-
difBcult to see how he could, by re- tice of the claim. The ground that
moving to another state, acquire the the defendant did not owe the debt,
right to impeach it by proof that no should have been taken in the former
service was made on him, or that it suit. Upon this the judgment is con-,
was fraudulently obtained. Carleton elusive, and the defendant cannot re-
V. Bickford, 13 Gray, 591; Ewer v. try the merits of the case, by alleging
Coffin, 1 Cush. 23; Hall v. Williams, that it was fraudulently obtained."
6 Pick. 232. But it is not necessary Brainard v. Fowler, 119 Mass. 265,
to decide that question. The superior Morton, J.
court ruled that the record made a > See authorities cited in two pre-
prima facie case for the plaintiff, and vious notes.
permitted the defendant to introduce " See authorities cited, supra, §
evidence upon the issues of service of 795 et seq.
the original writ upon him, and of * Whart. Confl. of L. § 183.
fraud in obtaining the judgment. Upon * Thompson u. Donaldson, 3 Esp,
those issues, the defendant offered to 63; Moons u. De Bernales, 1 Russ.
show that he did not owe the plaintiff 301 ; French v. French, 1 Dick. 268
anything, and the court properly re- Newman «. Jenkins, 10 Pick. 515
jected the evidence. It has no ten- McKimm v. Riddle, 2 Ball. 100; Cun^
dency to contradict the return of the ningham v. Smith, 70 Penn. St. 458
officer, whose duty it was to serve the Tisdale v. Ins. Co. 26 Iowa, 170 • Lan-
writ without any inquiry as to the jus- caster v. Ins. Co. 62 Mo. 1 21 • French
62
CHAP. X.] ADMINISTRATION AND PROBATE. [§ 8107
cerns the effect of a judgment of probate,^ it is evidence as
against all the world ; and that the letters are primd facie proof
of the title of the administrator, if the court has jurisdiction.^ A
court of high authority has gone so far as to hold that a grant of
letters to A. as administrator of B., when B. is still living, though
supposed to be dead, is a protection to a person making bond fide
payment to A. of a debt due B.* To sustain this conclusion it is
argued by Earl, J., that the decision of a court of probate, as to
the death of a party, cannot be collaterally impeached. But this
conclusion assumes that the probate court had jurisdiction, which,
unless under a peculiar and local statute, could not be if there
was no deceased person to be administered to. Apart from such
statute, we must hold that letters of administration to a living
person are void.* We must, on similar reasoning, hold that
when the suit depends upon proof of the death of a particular
person, as a substantive fact, letters of administration, being res
inter alios acta, are inadmissible to prove such death.^ And it is
now settled by the supreme court of the United States, that let-
ters of administration are not admissible as evidence, in proof of
death, in a suit brought by a plaintiff in his individual character,
and not as administrator, to recover a claim on a policy of life
u.Frazier, 7 J. J. Marshall, 426; Eng- on Ev. *665, 548, 6th Am. ed.; New-
lish V. Murray, 13 Tex. 366. See fully man v. Jenkins, 10 Pick.'515; Jeffers ■
infra, § 1278. v. Eadcliff, 10 N. H. 242 ; and see
1 See supra, § 759. Dale Adm. u. Roosevelt, 8 Cow. 333.
^ Blackham'a case, 1 Salk. 290; The letters produced in evidence in
Barrs v. Jackson, 1 Phill. 588; Cutts this case were sufficient, prima fade,
V. Haskins, 9 Mass. 543 ; Holyoke v. to prove the plaintiff's character as
Harkins, 9 Pick. 259; Barker, ex administrator of the effects of Charles
parte, 2 Leigh, 719. Balden, deceased." Folger, J., Bel-
Thus in New York, " when the com- den !'. Meeker, 47 N. Y. 310.
plaint alleges the death of the intes- ' Roderigas v. Savings Inst. N. Y.
tate, and the due and legal appoint- Ct. of Appeals, 1876, Am. Law Rep.
ment of the plaintiff as administrator Ap. 187C, 205.
of the estate, and the answer contains * Allen v. Dundas, 3 T. R. 125;
only a general denial of those allega- Jochumsen v. Bk. 3 Allen, 87; Griffith
tions, the letters of administration in v. Frazier, 8 Cranch, 9, per Marshall,
due form, produced in evidence, are C. J. ; Fisk v. Norvel, 9 Tex. 13; and
sufficient to establish the representa- see a learned note of Judge Redfield,
tive character in which the plaintiff in Am. Law Reg. Ap. 1876, 212.
assumes to sue. 2 R. S. 80, §§ 56, « See Carroll v. Carroll, 60 N. Y.
58; 2 Steph. N. P. 1904 ; Starkie on 123, quoted infra, § 1278.
Ev. 9th Amer. ed. *394, 361 ; 3 Phil.
53
§ 811'.]
THE LAW OF KVIDENCE.
[book n.
insurance, the right of action depending on the death of the third
person, whose life the pohcy insured.^ Nor is there any reason
why such letters should be evidence to prove death, in an action
brought on the policy by the administrator.^
§ 811. A probate of a will is the judicial action of a court
having jurisdiction, admitting a will as primd facie genuine and
valid. Technically it is a copy of the will, sealed with the seal
of the court of probate, and attached to a certificate that the
will has been proved, and that administration of the goods of
the deceased has been granted to one or more of the executors
named, or, in default of executors, to administrators. A probate
Probate of of a will is onlj primd facte proof of the validity of
the will as against parties seeking to avoid it on ground
of insanity,^ or on the ground of other incompetency,*
or of imperfect execution.^ And a person indicted for
forging a will cannot set up the probate of the will as
BYen primd facie & deience.^ Letters of administration are con-
clusive as to the probate of a will to which the letters are at-
tached, and can only be avoided by showing the will to be a
forgerj'^, or that there is a subsequent will.'^ And the probate is
at least primd facie proof of the title of the executor to sue.*
On the other hand, where there is a decree of a court of pro-
bate, as to a matter exclusively within its jurisdiction, such mat-
ter being at issue, and intelligently decided, the decree is conclu-
sive.^ This rule has been extended to a sentence of a court of
a will not
conclusive
as to stran-
gers, but
otherwise
as to par-
ties.
1 Mutual Ins. Co. v. Tisdale, 91 U.
S. (1 Otto) 238; citing 2 Phil, on
Evid. (ed. 1868) 93, m; Clayton v.
Gresham, 10 Ves. 288; Moons v. De
Bernales, 1 Russ. 307.
" See Cent. L. J., March 17, 1876.
In an Irish cstse, however, where
the question raised was whether a
child had been born alive or dead,
Lord Chancellor Sugden held, that a
grant of letters of administration to
its effects was a fact from which, in
the absence of evidence to the con-
trary, he was bound to presume that
the child was born alive, lleilly v.
Fitzgerald, 6 Ir. Eq. 849. See Jefiers
V. Kadcliff, 10 N. H. 242.
64
8 Marriot v. Marriot, 1 Str. 671.
^ Dickinson «. Hayes, 31 Conn. 417.
6 Charles v. Huber, 78 Penn. St. 449.
« R. V. Buttery, R. & R. 842.
' Bradley, J., Mutual Ins. Co. v.
Tisdale, 91 U. S. (1 Otto) 248; cit-
ing 2 Smith's Ld. Cas. (6th Am. ed.)
669 ; Vanderpoel v. Van Valkenburg, 6
N. Y. 190; Colton v. Ross, 2Paige, 396.
8 Noel V. Walls, 1 Lev. 235; Mar-
riot V. Marriot, 1 Str. 671; Belden
V. Meeker, 47 N. Y. 807; Carroll v.
Carroll, 60 N. Y. 121 ; Charies v.
Huber, 78 Penn. St. ; and see fully
infra, § 1278. See Spencer v. Wil-
liams, L. R. 2 P. & D. 280.
» Potter V. Webb, 2 Greenl. 257 ;
CHAP. X.]
ADMINISTRATIONS AND INQUISITIONS.
[§ 812.
probate declaring a particular person to be next of kin.^ But
the probate of a will purporting to have been executed by a
married woman in pursuance of a power, is no evidence that the
power has been duly executed.^ It need scarcely be added that
executors and other parties claiming under a will are bound by
the decree of the court of probate establishing it.^ With regard
to recitals (e. g. that of the presence of a party in court), a decree
of a court of probate has been held to be primd facie evidence as
to strangers,'' though this can only be good to prove the r'ecord
action of the court. Such recitals cannot be received to estop
parties not served, but who should have been served.^
§ 812. Inquisitions of lunacy are necessarily ex parte, so far as
concerns the person claimed to be a lunatic ; since, on inquisition
the assumption by which alone they have validity, he -rimd^'^^
is a lunatic, and if a lunatic, he is not capable of put- /"reproof-
ting in a valid appearance. Were it not for the theory, hereaf-
ter noticed, that such proceedings are in rem,^ they could not be
held admissible against strangers ; and at the most, as to stran-
gers dealing bond fide with the alleged lunatic, they are but
ing to real estate. Doe v. Calvert, 2
Camp. 389, per Lord EUenborough.
The ecclesiastical tribunals by which
they were granted had no control over
devises of real property; and even
when a will of lands was irretrievably
lost, nothing would induce them to
look at the probate. Doe v. Calvert,
2 Camp. 389, per Ld. EUenborough.
In respect to personalty, however, the
probate would have furnished conclu-
sive evidence. Allen v. Dundas, 3
T. R. 125. In this country this dis-
tinction never was recognized, and
consequently the decisions based on it
have no authority in our courts. See
Taylor's Ev. § 1565.
5 Judson V. Lake, 3 Day, 818; Love-
lady V. Davis, 33 Miss. 577; Potter v.
Adams, 24 Mo. 159.
* Sawyer v. Boyle, 21 Tex. 28. See
Lovell V. Arnold, 2 Munf. 167.
s Randolph v. Bayue, 44 Cal. 366.
8 See infra, §817.
Lawrence v. Englesby, 24 Vt. 42;
Loring V. Steineman, 1 Mete. (Mass.)
204; Jourden v. Meier, 31 Mo. 40;
Carter v. McManus, 15 La. An. 676.
1 Barrs v. Jackson, 1 Phill. 582 ;
Thomas v. Ketteriche, 1 Ves. Sen. 333 ;
Doglioni v. Crispin, L. R. 1 H. L. 301.
" Barnes v. Vincent. 5 Moo. P. C.
201. See Noble v. Willock, L. R. 2
P. & D. 276.
In respect to recent English au-
thorities on this point, it must be re-
membered that the act of parliament
passed in 1857 for the establishment
of the court of probate (20 & 21 Vict,
c. 77; and 20 & 21 Vict. c. 79, Jr.) has
materially altered the law with respect
to the admissibility and effect of pro-
bates, and of letters of administration
with wills annexed. Formerly these
documents were uniformly rejected,
whether tendered as primary or as
secondary evidence of the contents of
a will, on the trial of any cause relat-
55
§ sis.] THE LAW OF EVIDENCE. [BOOK II.
primd facie proof.^ As to parties who promote such an inquisi-
tion, however, it is conclusive, so far as to preclude those taking
part in the procedure from contesting the insanity of the alleged
lunatic at the particular time.^
V. JUDGMENT AS PKOTECTION TO A JUDGE.
§ 813. Another important evidentiary property of judgments
is founded upon the rule of law which, on grounds of
Judgment . , . n i •u-Vi
aconciu- policy, protects judges from collateral responsibility
tcction''to for errors of judgment. A judge, whether inferior or
]udge. otherwise, orders a seizure of property, on a case being
proved before him, which in his opinion justifies such seizure.
He is sued for trespass, and in his defence the record of his
judgment is produced. It may be that this record assumes as
proved one of the very facts necessary to the jurisdiction of the
court. But however this may be, the judgment is conclusive as
to these facts.^ In the leading case on this topic,* the defend-
ants, magistrates of London, were sued in trespass for directing
the seizure, under the " Bum-boat " Act, subsequently repealed,
of a vessel ; and it was part of the plaintiff's case that the ves-
sel, instead of being a " Bum-boat," which condition was neces-
sary to give the magistrate jurisdiction, was a ship. The plain-
tiffs offered on trial, therefore, to prove that the boat was not a
bum-boat, but this they were not permitted to do, the court
holding that the record was exclusive evidence of the points
mooted by the defendants. The record was then put in evidence,
and it being found to contain no error on its face, and to exhibit
a full justification for the defendants, the plaintiffs were non-
suited. On a motion to take off the nonsuit, the plaintiffs' coun-
sel urged strongly that if the vessel were not a bum-boat, the
magistrates had no jurisdiction, and that it was admissible, there-
fore for the plaintiffs to show the character of the vessel, for the
purpose of showing such want of jurisdiction. The court, how-
ever, held that the evidence was properly rejected ; the reasons
given being that the question as to whether the vessel was a
^ See cases cited infra, § 1254. * Brittain v. Kinnaird, 1 B. & B.
^ See infra, § 1254; Houstoun,in re, 432 ; affirmed in R. v. Bolton, 1 Q. B.
1 Russ. R. 312. 74; R. v. Buckinghamshire, 3 Q. B.
« Basten v. Carew, 3 B. & C. 649 ; 809 ; Mould v. Williams, 5 Q. B.
Mould V. Williams, 5 Q. B. 469. 47S
56
CHAP. X.] JUDGMENTS AS PROTECTING JUDGES. [§ 813.
bum-boat was that which the law expressly committed to the
judgment of the magistrates, and " that if a fact decided as this
has been might be questioned in a civil suit, the magistrate
would never be safe in his jurisdiction." No doubt there is a
force in these reasons which well deserves the commendation af-
terwards bestowed on them by Lord Denman, C. J., and Cole-
ridge, J.i If a statute says, "A magistrate is authorized to deter-
mine a particular issue," and if the policy of the law requires,
as it does, that no magistrate shall be liable to a private suit for
an erroneous judgment, then for an erroneous determination of
such particular issue the magistrate cannot be made liable to
private suit. Yet to the conclusiveness of this argument it is
essential that the issue should be one the legislature really com-
mits to the magistrate for determination. It is a petitio prin-
cipii to say, " The case is within the magistrate's jurisdiction,
because he has decided a particular fact in a particular way ; and
he has decided that fact in a particular way, because the case is
within his jurisdiction." Suppose, for instance, in an action of
trespass against a magistrate for executing process out of his
county, the record should aver the process to be executed within
the county, would this conclude the plaintiff ? Or, under the
recent statutes authorizing vagrants to be arrested and summa-
rily imprisoned, would it be an answer, supposing a man of
known respectability and gravity should be so arrested and
should sue the magistrate, for the magistrate to say, " You are a
vagrant, because the record says so ; and the record says so, be-
cause you are a vagrant ? " Hence it is that the position that
the record of a magistrate is conclusive in his favor, has been
regarded in this country as advanced too far when it includes
those points which are the prerequisites to the attaching of
jurisdiction.^ But however this may be (and the point is one
of anxious difficulty), we must regard it as settled that in all
other respects the magistrate's record, if on its face regular, is
conclusive in his favor if sued civilly for an erroneous judgment.
It should be, in any view, kept in mind, that the record only pro-
tects a judge when acting in a judicial capacity.* It has conse-
1 R. V. Bolton, 1 Q. B. 74 ; R. v. " Clapper, ex parte, 3 Hill (N. Y.),
Buckinghamshire Justices, 3 Q. B. 468.
809. ' Fernley v. Worthington, 1 M. &
Gr. 491.
57
§ 814.]
THE LAW OF EVIDENCE.
[book II,
quently been held that a magistrate's warrant cannot be set up
by him as a defence to an action of trespass brought against him
for issuing a warrant of distress to enforce payment of a high-
way rate, should the rate prove invalid ; for although the rate
must be good in order to give him jurisdiction, he cannot judi-
cially decide upon its validity.^
VII. JUDGMENTS IN KEM.
§ 814. By ^nglo-American law, the decree of a court of ad-
miralty or of exchequer, having jurisdiction, when the
judgments proceedings are in rem, in cases of collision, prize, or
against all forfeiture, has extra-territorial validity, whether the
t ewor . g(jyj,j- ijg foreign or domestic.^ This ubiquity of au-
thority is applied even in cases where the sentence is founded on
mistake of law.^ It is otherwise, however, if the jurisdiction does
not appear, or if there was no summons or hearing,* or where the
sentence is outrageously unjust.^ The decree of a court of ad-
miralty in this country is held conclusive as to the essential facts
on which the decree rests ; ^ and this view is also now accepted
1 Mould V. Williams, 5 Q. B. 476,
per Ld. Denman; Weaver v. Price, 3
B. & Ad. 409 ; Morrell v. Martin, 3
M. & Gr. 593, per Tindal, C. J.; Ld.
Amherst t). Ld. Sommers, 2 T. R. 372 ;
Taylor's Ev. § 1485.
2 Stringer v. Ins. Co. L. R. 4 Q.
B. 676; Hughs v. Cornelius, Ld. Ray.
473; Scott V. Shearman, 2 W. Black.
977; Lothian v. Henderson, 3 B. & P.
499; Bernard! v. Motteux, 2 Douor.
Hoyt, 13 Johns. 561 ; 3 Wheat. 246;
Street v. Ins. Co. 12 Rich. (S. C.)
13; Duncan v. Stokes, 47 Ga. 593.
See Brown v. Bridge, 106 Mass.
563.
8 Imrie v. Castrique, 8 C. B. N. S.
403; L. R. 4 H. L. 414; Williams v.
Amroyd, 7 Cranch, 423.
* Windsor v. McVeigh, supra, §
796 ; The Griefswald, Swabey, 430 ;
Bradstreet v. Ins. Co. 3 Sumn. 600;
574; The Helena, 4 Ch. Rob. 3 ; Cooke Rose v. Himely, 4 Cranch, 241 ; Slo-
V. Sholl, 5 T. R. 255 ; Godard v. Gray, cum v. Wheeler, 1 Conn. 429 ; Sawyer
L. R. 6 Q. B. 139; Dalgleish a. Hodg-
son, 7 Bing. 504 ; Bolton i>. Gladstone,
5 East, 160; Croudson v. Leonard, 4
Cranch, 434 ; Peters v. Ins. Co. 3
Sumn. 389; Bradstreet «. Ins. Co. 3
Sumn. 600; Mankin v. Chandler, 2
Brock. 125 ; Dunham v. Ins. Co. 1
Low. 253 ; The Vincennes, 3 Ware,
171; French v. Hall, 9 N. H. 137;
Whitney v. Walsh, 1 Cush. 29; Den-
ison V. Hyde, 6 Conn. 508; Grant v.
McLachlin, 4 Johns. 34; Gelston v.
68
V. Ins. Co. 12 Mass. 291. See Deni-
son V. Hyde, 6 Conn. 508.
^ Ibid. As to foreign prize judg-
ments, it is well to remember that Lord
Thurlow and Lord EUenborough held
that the practice of receiving such
judgments at all in evidence rested
upon an overstrained comity, and was
often productive of cruel injustice.
Fisher u. Ogle, 1 Camp. 419, 420 ;
Donaldson v. Thompson, Ibid. 432.
° Croudson v. Leonard, 4 Cranch,
CHAP. X.] JUDGMENTS IN REM. [§ 816.
in England.^ It is otherwise, however, as to the proceedings of
foreign courts acting irregularly, and without proper pleadings.^
Nor can recitals of facts not absolutely necessary to the decree
bind strangers.^ In cases of condemnation, the ground of con-
demnation, to be conclusive, must clearly appear.* So it is held
in England that the decree may be disputed and the facts opened,
when the language of' the sentence, by setting out several rea-
sons for judgment, leaves it uncertain whether the ship was con-
demned upon a ground which would warrant its condemnation
by the law of nations, or upon other ground, which amounts only
to a breach of the municipal regulations of the condemning coun-
try.^ In any way it is agreed that the decree is conclusive only
as to matters essential to the decree.^
§ 815. Independently of prize and admiralty judgments, which
have been just noticed, a judgment in rem, entered by Judgment
J ^ ^ ^ '^ ^ J o ' '^ ' %n rem
a court having jurisdiction, is conclusive everywhere binds all
the world.
434; Baxter v. Ins. Co. 6 Mass. 277; to bind strangers, the ground of the
Calhoun v. Ins. Co. 1 Binn. 299; Street decision must appear clearly upon the
V. Ins. Co. 12 Rich. (S. C.) 13; Gron- face of the sentence, and that it will
ing V. Ins. Co. 1 Nott & McC. 637. not suifice for it to be collected by in-
Contra, Johnson v. Ludlow, 1 Caines ference only. Dalgleish v. Hodgson, 7
Sel. Ca. 30 ; Radcliff v. Ins. Co. 9 Bing. 504; Fisher v. Ogle, 1 Camp.
Johns. 277 ; Ocean Ins. Co. v. Francis, 418, per Ld. EUenborough, And it is
6 Cow. 404 ; Thompson v. Stewart, 8 argued that if, in an action upon a
Conn. 171 ; Ins. Co. v. Bathurst, 5 Gill policy of insurance containing a war-
&J. 159; Bailey u. Ins. Co. 1 Treadw. ranty of neutrality, the underwriter
(S. C.) 381 ; Bourke v. Granberry, were to rely upon a general sentence
Giltn. (Va.) 16. See Bigelow on Es- of condemnation, the assured might
toppel, 2d ed. 151 et seq. still show that in fact the judgment
^ Lothian v. Henderson, 3 Bos. & had proceeded upon some other ground
P. 499 ; Hobbs v. Henning, 17 C. B. than that of an infraction of neutral-
ly. S. 791. ity. Calvert v. Bovill, 7 T. E. 527,
° Bradstreet v. Ins. Co. 3 Sumn. per Lawrence, J. See Taylor's Ev.
600 ; Sawyer v. Ins. Co. 12 Mass. § 1542.
291. " Dalgleish v. Hodgson, 7 Bing. 495,
» Van Vechten v. Griffiths, 4 Abb. 504; 5 M. & P. 407, S. C; Hobbs v.
(N. Y.) App. 487. Henning, 17 Com. B. N. S. 791 ; 34
* See Lothian v. Henderson, «< sm- L. J. C. P. 117, S. C. ; Bernardi v.
pra; Christie w. Secretran, 8 T. R. 192; Motteux, 2 Doug. 575 ; Calvert v. Bo-
Bradstreet v. Ins. Co. 3 Sumn. 600; vill, 7 T. R. 523 ; Baring v. Clagett, 3
Robinson v. Jones, 8 Mass. 536; Gray B. & P. 215; Taylor's Ev. § 1542.
V. Swan, 1 Har. & J. 142. « Calvert v. Bovill, 7 T. R. 523; Ma-
It should be remembered that Tin- ley v. Shattuck, 3 Cranch, 458; Fitz-
dal, C. J., has held that, in order simmons v. Ins. Co. 4 Cranch, 186.
59
§ 815.]. THE LAW OF EVIDENCE. [BOOK II.
and against everybody,^ provided the court have iurisdiction
in rem as to the object of the judgment.^ Mr. Smith, in his
Leading Cases,^ defines a judgment in rem to be " an adjudica-
tion pronounced upon the status of some particular subject mat-
ter, by a tribunal having competent authority for that pur-
pose ; " and this definition is declared by Mr. Taylor to be " the
best, if not the only reliable one, to be found in the books ; "
but he at the same time suggests that the definition may be re-
garded as unduly broad, as including criminal convictions, and
inquisitions in lunacy.* Nor is this the only criticism to be made
on the unqualified use of the word status in Mr. Smith's defini-
tion. A judgment as to status is not a judgment in rem, so far
as concerns persons. A foreign conviction of infamy determines
the status of the convict ; but such conviction is not extra-terri-
torially regarded as operative in attaching infamj"-. So a state
may by statute or otherwise defer the majority of its subjects
until they are thirty ; but the better opinion now is that this
status of pupilage does not cling to them extra-territorially, but
that in other countries they can, at twenty-one, be made re-
sponsible for their debts. So non-business men are by German-
and French law incapacitated, under certain circumstances, from
making negotiable paper ; but no one now regards this prohi-
bition, though it is emphatically one of status, as ubiquitous.^
By text-writers, also, of high authority the term judgment in
rem is extended to cover divorces, and adjudications in bank-
ruptcy. But a decree in divorce is not necessarily ubiquitously
valid ; ^ and a foreign bankrupt discharge only protects the bank-
rupt as to claims against him by persons domiciled in the same
state.'' So, also, slavery was eminently a status ; yet it was held
by the supreme court of the United States that a judgment de-
claring a person to be free bound only parties and privies, and
was not a judgment in rem, good against all the world.^
1 2 Smith's Lead. Gas. 66i'; Han- « 2 Smith's Lead. Cas. 662.
naford v. Hunt), 2 C. & P. 155; Cam- * Taylor's Evidenne, § 1487.
mell V. Sewell, 3 H. & N. 646 | The « See the cases collected in Whar-
Rio Grande, 23 Wall. 458. See Web- ton Confl. of Laws, §§ 84-122.
Bter V. Adams, 58 Me. 317. « See Wharton Confl. of Laws, §
'' Penn. E. R. v. Pennock, 61 Penn. 204. Infra, § 817.
St. 244 ; Noble v. Oil Co. 79 Penn. ' Wharton Confl. of Laws, § 852 a.
St. 354, per Mercur, J. s Davis v. Wood, 1 Wheat. 215.
60
CHAP. X.J JUDGMENTS IN REM. [§ 816.
§ 816. From what has just been said it will be seen that grave
differences exist as to the limits of judgments in rem,
supposing that to judgments in rem it is an essential judgments
. . in T&Tn.
incident that they should be extra-territorially conclu-
sive. That this quality cannot be absolutely predicated of for-
eign judgments of marriage and of legitimacy, has been already
incidentally noticed.^ How far judgments of prize and admi-
ralty courts are extra-territorially conclusive, has been just con-
sidered. It may be now in addition noticed that the English
courts have recognized as judgments in rem, forfeitures pro-
nounced by the court of exchequer,^ letters of probate,^ or ad-
ministration ; * sentences of deprivation and expulsion, whether
delivered by the spiritual court, a visitor, or a college ; ^ orders
of justices for dividing roads under the act of 34 G. 3, c. 64 ; ^ de-
crees of settlement by an order of justices, whether unappealed
against "^ or confirmed by a court of quarter sessions on appeal ; ^
and judgments of outlawry.^ In Ireland the same quality has
been assigned to judgments by the commissioners or sub-com-
missioners of excise, inland revenue, or customs.^" Yet all these
rulings relate to infra-territorial courts, under the local law es-
tablished by a common sovereign. We have nothing to show,
that, so far as concerns personal status, an English court would
hold itself bound absolutely by the decree of a foreign tribunal.^^
* The authorities on this topic are ' R. u. Kenilworth, 2 T. R. 59?, per
discussed at large in my work on Con- Buller, J.
flict of Laws, to which, for the sake ' R. v. Wick St. Lawrence, 5 B. &
of brevity, I now merely refer. Ad. 533, per Ld. Denman.
2 Geyer v. Aguilar, 7 T. R. 6S6, » Co. Lit. 352 6.
per Ld. Kenyon ; Scott v. Shearman, i" Maingay v. Gahan, Ridg. L. & S.
2 W. Bl. 977 ; Cooke v. ShoU, 5 T. 1, 79 ; 1 Ridg. P. C. 43, 44, n., S. C.
R. 255. There, according to Mr. Taylor (§
» Noel V. Wells, 1 Lev. 235, 236; 1488), the Irish Ex. Ch. expressly
Allen V. Dundas, 3 T. R. 125. overruled Henshaw v. Pleasance, 2
* Bouchier v. Taylor, 4 Br. P. C. W. Bl. 1174, a decision which, accord-
708. See Prosser v. Wagner, 1 Com. ing to Fitzbiggon, Ch. (see Ridg. L. &
B. (N. S.) 289; though see supra, S. 79), was reprobated by Ld. Mans-
§ 810. field, in Dixon v. Cock, and was fre-
* Philips V. Bury, 2 T. R. 346, per quently condemned by Ld. Lifford, Ch.
Ld. Holt; R. V. Grundon, 1 Cowp. " See, also, Roberts v. Fortune, 1
315, 321, 322, per Ld. Mansfield. Harg. L. Tracts, 468, n., per Lee, C.
* R. V. Hickling, 7 Q. B. 880. J. ; Terry v. Huntington, Hardr. 480;
and Fuller v. Fetch, Carth. 346.
61
§ 818.] THE LAW OF EVIDENCE. [^0°^ "•
That a foreign decree of bankruptcy, though a decree as to status,
cannot be regarded as imposing disabilities on the bankrupt
which pursue him to every country in which he settles, would
not be seriously maintained either in England or the United
States.^
§ 817. It is with the qualification just stated (i. e. that the
Decrees as ^^^^ ^°^^ ^^^ necessarily imply ubiquitous conclusive-
to personal ness), that we are to understand other rulings to the
status not „, ., ^ j. j. • • 3
necessarily effect that a judgment as to personal status is a ]uclg-
ubiquitous. ^^^^ ^.^ ^^^^ ^j^^^ .^ ^^^ ^^^^ j^^j^ ^y ^YiQ supreme
court of the United States that the proceedings of a competent
court, determining pedigree, is in rem,^ yet we would not hold,
as to a foreign decree of legitimacy (e. g. in a polygamous de-
scent), that it determined questions our courts could not revise.
So it has been declared that the order of a court, having jurisdic-
tion of a minor, appointing his tutor, is good against all the
world ; ^ but we do not at the same time regard foreign non-nat-
ural decrees of minority as everywhere binding. So, extra-terri-
torial validity has been claimed for the decree of a court appoint-
ing a guardian of a lunatic, the decree emanating from the
proper court of his domicil ; but if the lunatic appears as sane
in a foreign land, this decree would not bar foreign creditors.*
That a judgment of divorce can only be in a qualified sense re-
garded as extra-territorially binding, is amply shown in another
work whose conclusions are here reaffirmed.^
§ 818. It is scarcely necessary to add that a judgment in rem
Judgments of a foreign state cannot, unless there has been such a
n"[bTnd°sn personal service as gives jurisdiction to the court, bind
and must' *'** p^'^'sonam extra-territorially.^ Hence a foreign bank-
1 See this point discussed in Whart. 2 Sm. & Giff. 199 ; S. C. 3 D., M. &
Confl. of Laws, §§ 101, 888. G. 764; explained in Stuart u. Bute,
2 Ennis v. Smith, 14 How. 400. 9 H. L. C. 440; Story's Confl. of L.
See, however, Kearney i: Dean, 15 § 499.
Wall. 51; Bigelow on Estoppel (2d ^ Wharton's Confl. of Laws, § 269;
ed.), 144. See Houstoun, in re, 1 Russ. R. 312.
' Garrison's Succession, 15 La. An. Supra, § 812.
27; Whart. Confl. of Laws, § 259; ^ Wharton's Confl. of Laws, § 127,
Savigny, Rom. Recht, viii. § 880; Bar, et seq.
Int. Privat Recht, § 106; but see, con- ^ See supra, § 815; 2 Phillipps Ev-
<ra, Johnstone u. Beattie, 1 Phil. Ch. idence, 198; Story's Confl. of Laws,
17 ; 10 CI. & Fin. 42; Dawson v. Jay, § 549 ; 3 Burge's Com. 1014 ; D'Arcy
62
CHAP. X.] RECORDS VIEWED EVIDENTIALLY. [§ 819.
rupt adjudication does not extra-territorially bind a j,^ ;„ ^^_
party over whom the court has not acquired personal cordance
jurisdiction.! Nor, even as to property attached, can lished rules
a judgment in rem be maintained against collateral
attacks, unless the proceedings be conducted according to estab-
lished rules of justice, forming part of private international law.^
Thus it was held by the supreme court of the United States, in
1876, in a case already cited, that the jurisdiction acquired by
the seizure of property, in a proceeding in rem for its condemna-
tion for alleged forfeiture, does not authorize the attaching court
to pass upon the question of forfeiture absolutely, but only to
pass upon that question after opportunity has been afforded to
its owner and parties interested to appear and be heard upon the
charges for which the forfeiture is claimed. To that end some
notification of the proceedings, beyond that arising frooa the
seizure, prescribing the time within which the appearance must
be made, is essential to sustain the judgment.^
Tin. RECORDS VIEWED EVIDENTIALLY.
§ 819. It is not merely the judgment that the parties to a suit
are precluded from disputing ; they are equally bound
by the incidental action of the court to whose abitrament of record
they submit. Hence, when the parties are the same, suit°ad^^'
the record of a former suit may be put in evidence to ™Jt^'gg^
establish a controverted fact. The parties are con- sa°>e
parties.
eluded by the record, unless fraud be shown.* But to
make the record thus admissible (e. g. as in cases of returns to
executions), the parties must be virtually the same, or the parties
to the second suit must be privies to the parties in the first.''
V. Ketchum, 11 How. 165 ; Boswell * See cases cited supra, §§ 759-60,
». Otis, 11 How. 336; Bissell u. Briggs, and see 776; Janes v. Buzzard, 1
9 Mass. 462; Phelps u. Brewer, 9 Cush. Hempst. 240; Parsons v. Copeland,
390; Steel v. Smith, 7 W. & S. 447; 33 Me. 370; Canon v. Abbot, 1
Scott V. Noble, 72 Penn. St. 120. Boot, 251.
* Kuehling v. Leberman, Sup. Ct.. As to the effect of criminal judg-
Penn. 1876, 2 Weekly Notes of Cas. ments, in this respect, upon civil, see
61fi. supra, § 776.
* Wharton Confl. of Laws, § 792; ^ Bank of Alex. v. Mandeville 1
Bradstreet v. Ins. Co. 3 Sumn. 601 ; Cranch C. C. 575; Bott v. Burnell,
and see cases cited supra, § 814. 11 Mass. 163; Lawrence v. Pond, 17
* Windsor v. McVeigh, Alb. L. J. Mass. 433 ; Whitaker v. Sumner, 7
Jan. 6, 1877, quoted supra, § 796. Pick. 551; Fowler u. Collins, 2 Root,
63
§ 820.]
THE LAW OF EVIDENCE.
[book II.
§820.
Records
admis-
sible evi-
dentially
against
strangers.
The distinction elsewhere ^ noticed, between bilateral
and unilateral proofs, applies necessarily to records.
A record is bilateral when introduced between parties
and privies, and when so used, as we have seen, cannot
be disputed. Records, or particular parts of records,
on the other hand, are unilateral when offered to show a partic-
ular fact, as a primd facie case either for or against a stranger."
Even parol testimony may be used to explain the applicability
of the record in such a case. Thus where it became important
to show that a particular piece of property was at a certain
time bound by an attachment, it was held admissible to put in
evidence the writ which had been served, but not returned, with
parol evidence to prove the service.^ Rights of a public nat-
ure are among the most conspicuous illustrations of the principle
before us; and as to these, as we have already seen, judgments,
and even verdicts, are admissible in all cases in which common
reputation would be received.* A writ of restitution, also, un-
accompanied by the judgment, and inter alios acta, has been re-
ceived for a plaintiff, not to establish a title, but to show what
the property was, of which the plaintiff was possessed, and the
extent of his occupancy.^ So, as we have occasion elsewhere
to see, the issuing of letters of administration has been held
to be collaterally ^rmii/aae proof of the administrator's title,
though not of the averments of the record.^ So decrees of courts,
settling administration accounts, have been held in collateral
proceedings primd facie proof of such accounts, there being
231; Jackson v. Vedder, 3 Johns. R.
8; Paynes v. Coles, 1 Munf. 373 ; Bur-
roughs V. Hunt, 13 Ind. 178; Banks
V. Sharp, 6 J. J. Marsh. 180; Pailhes
V. Thielen, 1 La. An. 34 ; Robinett v.
Compton, 2 La. An. 846.
Records, also, may be admissible
as part of the res gestae. Wells v.
Shipp, 1 "Walk. (Miss.) 353.
1 Infra, §§ 1183-5; supra, § 760.
^ Bartlett v. Decreet, 4 Gray, 111;
Caverly v. Gray, 7 Gray, 216; Com.
V. Slocum, 14 Gray, 395 ; Brown v.
Littlefield, 7 Wend. 454; Key d. Dent,
14 Md. 86 ; Gray v. Gray, S Litt.
64
(Ky.) 465; Bumpass v. Webb, 3 Ala.
109; Ryburn v. Pryor, 14 Ark. 505;
Dexter v. Paugh, 18 Cal. 372.
As to ancient records, see supra,
§ 200.
' Tomlinson v. Collins, 20 Conn.
364. See Wilder v. Holden, 24 Pick. 8.
* Supra, §§ 200, 794.
5 Lee V. Stiles, 21 Conn. 500. See
Calvert v. Marlow, 18 Ala. 67.
« Supra, § 810. French v. Fra-
zier, 7 J. J. Marsh. 425; Tisdale ».
Ins. Co. 26 Iowa, 170 ; English v.
Murray , 13 Tex. 366.
CHAP. X.] RECORDS VIEWED EVIDENTIALLY. [§ 822.
averment of due notice.^ But, as a rule, the acts of courts, as
well as the acts of individuals, are mere hearsay as to strangers,^
unless such judgments be in rem, or are offered to prove public
acts, or inducement, as hereafter defined. ^
§ 821. It is scarcely necessary to say that a judgment of a
court of law, or a decree of chancery, is admissible, Record ad-
though res inter alios acta^ to prove a link in a chain j^oyg"'}ink'*
of title. The record, as it imports absolute verity, is '" ''"e.
conclusive between parties and privies ; * though open, as is else-
where seen, to be explained by parol when obscure, or to be im-
peached on ground of fraud.^ But, as to strangers, a recital in
a record, that a party whose lands are sold was heir to a
former owner, is not sufficient to make out the chain. The fact
of heirship must be independently proved.® So a deed from
a sheriff cannot be shown without proving authority in the
sheriff.^ Hence, in making up such record title, when depend-
ing upon a sheriff's sale, it is proper to put in evidence not
merely the execution, but the judgment,^ though beyond this it
has been held unnecessary to go, as against the judgment defend-
ant's successors.®
§ 822. When the object is to show justification, in cases where
damages are sought for a trespass, it is admissible other casea
to prove by record an authorization of court.'" So bmty™'^^''
' Owens V. Collins, 3 Gill & J. Baylor v. Dejarnette, 13 Grat. 152;
25 ; Evans v. Iglehart, 6 Gill & J. Buckingham!). Hanna, 2 Oh. St. 551;
171; Stockett v. Jones, 10 Gill- & J. White v. Rice, 48 Ind. 225; Splahn v.
276; Atwell v. Milton, 4 Hen. & M. Gillespie, 48 Ind. 397; Nichol v. Mc-
253 ; Smith v. Hoskins, 7 J. J. Marsh. Calister, 52 Ind. 586 ; Turpin v. Bran-
502 ; Neville v. Eobinson, 1 Bailey, non, 3 McCord, 261 ; Doe v. Roe, 36
361 ; Brown u. Wright, 5 Ga. 29. See Ga. 321; Montgomery u. Robinson,
Wilhelm v. Cornell, 3 Grant, 178 ; 49 Cal. 259.
Street t). Street, 11 Leigh, 498. « See infra, § 985.
» See supra, § 175 ; infra, §§ 1078, ° Lovell v. Arnold, 2 Munf. 167 ;
1088. Archer v. Bacon, 12 Mo. 149; Ward-
« Infra, § 823. law v. Hammond, 9 Rich. (S. C.) 454.
« Inman v. Mead, 97 Mass. 310; ' Infra, §§ 1312-15.
Casler v. Shipman, 35 N. Y. 533 ; Den ' See Gaskell v. Morris, 7 Watts &
V. Hamilton, 7 Halst. (N. J.) 109; S. 32.
Coursin v. Ins. Co. 46 Penn. St. 323; » Fortier v. Zimpel, 6 Ga. 53.
House V. Wiles, 12 Gill & J. 338; i" State v. Hyde, 29 Conn. 564;
Barney v. Patterson, 6 Har. & J. 182; Plummeru. Harbut, 6 Iowa, 308; Tay-
Shanks v. Lancaster, 5 Grat. 110 ; lor's Ev. § 1481.
TOL. II.
5 65
§ 823.] THE LAW OF EVIDENCE. [BOOK 0.
when the object is to show payment by the plaintifE for the
defendant, a record is admissible to show a decree against the
plaintifiE and the defendant jointly, and full satisfaction by the
plaintiff.^
§ 823. We have already had occasion ^ to dwell upon the im-
jndgments poJ^t^nt distinction between judgments, when offered
admissible between parties and privies, in which cases they are
strangers (with certain limitations already expressed) conclusive
theKgai as to their subject matters ; and judgments when offered
efEects. ^^^ ^^ against strangers, in which case they are admissi-
ble only to prove their existence and their effects. In other
words, judgments, in the latter case, are admissible to prove, not
why they were given, for this is res inter alios acta ; but what
they did, for this, when it is relevant, is admissible against all the
world. A judgment by A. against B., for instance, in a private
claim, is not admissible in a suit by A. against C, as proof of
any direct indebtedness from C. to A. ; but if in A.'s suit against
C. it becomes relevant to show that A. had obtained and col-
lected a judgment against B., then the record of the judgment
in the suit of A. against B. is admissible for this purpose.
When a judgment is offered for such purpose it is sometimes said
in the books to be offered as inducement ; though it would be
more correct to say that as against strangers a judgment is ad-
missible to prove its existence and legal effects.* Thus, to recur
to an illustration already noticed, where there is a judgment
against a master for the servant's negligence, and the master sues
the servant, the servant cannot controvert the fact that the judg-
ment was entered against the master, though the judgment (if
the servant was not summoned to come in and defend) is no
1 Davidson v. Peck, 4 Mo. 438. Dermott, 17 Penn. St. 353 ; Borough
« Supra, §§ 759, 820. of York v. Forscht, 23 Penn. St. 391 ;
« Stephen's Ev. art. 40; Green v. Key v. Dent, 14 Md. 86; Ray i>.
New River Co. 4 T. R. 590; S. C. 2 Clemens, 6 Leigh, 600; Gaither v.
Smith's Lead. Cas. 685; Kingu. Chase, Brooks, 1 A. P. Marsh. 409 ; Head u.
15 N. H. 9; Vogt V. Ticknor, 48 N. McDonald, 7 T. B. Monr. 203; State
H. 242 ; Spencer v. Dearth, 43 Vt. 98; v. Foster, 3 McCord, 442 ; Havis v.
Griffin v. Brown, 2 Pick. 304; Weld Taylor, 13 Ala. 324; Donnell v. Jones,
I!. Nichols, 17 Pick. 538; Com. Bk. v. 17 Ala. 689; McGill v. Monette, 37
Eddy, 7 Mete. (Mass.) 181 ; Goodnow Ala. 49; Fox v. Fox, 4 La. An. 135;
tj. Smith, 97 Mass. 181 ; Kip v. Brig- Lee v. Lee, 21 Mo. 531.
ham, 7 Johns. 168; McMichael v. Mo-
CHAP. X.] RECORDS VIEWED EVIDENTIALLY. [§ 823.
evidence of the servant's liability .^ On the other hand, where
the servant is jointly sued with the master (and in this way we
have brought before us, in sharp contrast, judgments as to
parties and judgments as to strangers), then he is bound, as to
his liability, by the judgment.^ Again, to return to the question
of the admissibility of judgments, for the purpose of proving
their legal effects against strangers, it has been generally declared
that a judgment establishing the relationship of debtor and cred-
itor between A. and B. may, when such fact is relevant, be
afterwards used collaterally to show primd facie such relation-
ship.^ A judgment against a surety, it is also laid down, will
be conclusive, in a suit against the principal, to show the fact
that the judgment was entered, but not to show the existence
of the debt, for which purpose, being res inter alios acta, it
is not even admissible.* In a suit, also, against a deputy sher-
iff for misconduct, the record of a judgment against his princi-
pal is admissible to show that such a judgment was rendered,
but not to prove the deputy's default for which such judgment
was rendered.^ A judgment, also, against the guarantor may be
always introduced in a suit brought for reimbursement by the
guarantor against his principal.^ So, in order to prove diligence,
but for no other purpose, it is admissible in a suit against the
indorsers of a note, to prove a judgment against the maker
prosecuted to insolvency.^ In all cases, to pass to another line of
illustrations, where it is sought to discredit a witness, a record of
the conviction of the witness is admissible when pertinent, who-
ever may be the parties to the suit.^ So also, when a witness is
1 Green v. New River, 4 T. R. 590; «. Ticknor, 48 N. H. 242; Church v.
Pritchard v. Hitchcock, 6 M. & G. Chapin, 35 Vt. 231 ; Inman v. Mead,
165; 2 Smith's Lead. Cas. 586 ; Free- 97 Mass. 310; Freeman on Judgments,
man on .Judgments, § 417. § 418.
^ Bailey v. Bussing, 37 Conn. 349. * King v. Norman, 4 C. B. 884.
^ Sidensparker v. Sidensparker, 52 ^ Lewis v. Knox, 2 Bibb, 453. See,
Me. 481; Chamberlain v. Carlisle, 26 also. Cox v. Thomas, 9'Grat. 323.
N. H. 540 ; Candee v. Lord, 2 Comst. * Copp ti. McDugall, 9 Mass. 1 ; Lee
269. It has been held, however, in r. Clarke, 1 Hill, 56.
Alabama, that in a suit to set aside a ' Lane v. Clark, 1 Mo. 657. For
conveyance, by a creditor of the grant- parallel cases, see Preslar v. Stall-
or, a judgment in favor of the cred- worth, 37 Ala. 405; Marlatt v. Clary,
itor and against the grantor is inad- 20 Ark. 251; Gragg v. Richardson, 25
missible to affect the grantee. Troy«. Ga. 670.
Smith, 38 Ala. 469. See contra, Vogt » Wharton's Cr. L. § 659 ; Real, in
67
§ 824.]
THE LAW OF EVIDENCE.
[book II.
to be contradicted by showing his testimony on a former trial,
the record of such former trial may be put in.^ In an action of
malicious prosecution, also, the record of acquittal is admissible
to prove such acquittal, though not to prove want of probable
cause.^
How far criminal judgments can be put in evidence in civil
cases been already discussed.^
§ 824. If the object of the evidence be to prove, as an estoppel,
or as a link of title, a particular judicial result : e. g.
judgment, the entering of a judgment; it is not enough to have
must be a certificate of the result. The whole record, so far
corap e e. ^^ j^ concerns the formal stages, must be either pro-
duced or exemplified, and if exemplified, the exemplification
must show on its face that the record is complete.* The compo-
nent parts of the record should be so attached that it will appear
that the certificate extends to them all.^ A certificate that a
transcript is true and perfect, enumerating all the usual parts of
a record, is sufiicient.® So far as concerns other courts, a record
of an unfinished suit cannot be received for dispositive purposes.'
re, 55 Barb. 186, 5. C. ; 7 Abb. Pr. N. S.
2S; Morrison v. Chapin, 97 Mass. 72.
> Clarges v. Sherwin, 12 Mod. 343.
" Supra, § 776.
The fact that a judgment or de-
cree,might, if directly attacked, be
held invalid, does not preclude it from
being used for the purposes above
noted. Sebastian v. Ford, 6 Dana, 436;
Wildey v. Bonney, 31 Miss. 644. See
Hill V. Parker, 5 Rich. S. C. 87.
« Supra, § 776.
* See supra, §§ 95-106, 120 ; R. v.
Smith, 8 B. & C. 341; Godotrey v.
Jay, 3 C. & P. 192; R. v. Robinson,
1 C. & D. 329 ; Porter v. Cooper,
6 C. & P. 354; R. v. Birch, 3 Q. B.
431; Jay v. East Livermore, 56 Me.
107; Merrill v. Foster, 83 N. H. 379 ;
Hawks V. Truesdell, 99 Mass. 557;
Davidson v. Murphy, 13 Conn. 213;
Belden v. Meeker, 2 Lansing, 470 ;
Com. V. Trout, 76 Penn. St. 379 ;
Numbers v. Shelly, 78 Penn. St. 426;
68
Carrick v. Armstrong, 2 Coldw. 265 ;
Evans u. Reed, 2 Mich. N. P. 212;
'Sternburg v. Callanan, 14 Iowa, 251;
Smith V. Smith, 22 Iowa, 516 ; Miles
V. Wingate, 6 Ind. 458 ; Young v.
Thompson, 14 111. 380 ; Miller v.
Deaver, 30 Ind. 371 ; Oliver v. Per-
sons,30 Ga. 391; Mitchell v. Mitchell,
40 Ga. 11 ; Hallet v. Eslava, S St. &
P. 105 ; Anderson v. Cox, 6 La. An.
9 ; Loper i'. State, 4 Miss. 429 ; Wash
V. Foster, 3 Mo. 205 ; Mason u.AVolff, 40
Cal. 246; Ogden v. Walters, 12 Kans.
282. As to verdicts, see infra, § 831.
^ Susquehanna R. R. ii. Quick, 68
Penn. St. 189 ; Herndon v. Givens, 16
Ala. 261.
' Coffee V. Neely, 2 Heisk. 304.
' Heath V. Page, 63 Penn. St. 108.
See, as to exemplifications generally,
supra, § 95. The formal English prac-
tice was undoubtedly (Co. Lit. 260 a;
8 Bl. Com. 24) to enroll the record in
full length on parchment. This prac-
CHAP. X.J
RECORDS .VIEWED EVIDENTIALLY.
[§ 824.
Hence, -when a judgment is introduced in evidence, to sustain
an attachment, the declaration goes in with the judgment,^
tice has never been insisted on in this
country ; Brainard v. Fowler, 119
Mass. 262 ; and in England is now
subjected to many exceptions. In
courts of inferior jurisdiction a full
formal enrolment is not attempted.
Dyson v. Wood, 3 B. & C. 449. Thus
in a case where an act of parliament
authorizing the owners of lands taken
by a railroad company to claim dam-
ages from the company, the amount
in case of dispute to be settled by a
sherififs jury, directed that the ver-
dicts and judgments thereon should
be deposited with the clerk of the
peace for the county among the rec-
ords, and should be deemed records,
the court held that, on proof of non-
compliance with this direction, parol
evidence of such a verdict, and of the
grounds on which it proceeded, might
be given, and the under-sheriff was
called for the purpose. Manning v.
E. Cos. Ry. Co. 12 M. & W. 237, 243,
249. Quarter sessions orders, also,
directing the removal of paupers, may
be proved by the paper book, in
which the proceedings of the court
have been entered by the clerk of the
peace, or by a copy of it, provided
the minutes sufficiently disclose the ju-
risdiction of the court, and it be shown
that, in practice, no other record of a
more formal character is kept. K. v.
Yeoveley, 8 A. & E. 806.
Road proceedings by the quarter
sessions are treated with the same lib-
erality, though if the jurisdiction do
not appear in the minutes, — as, for
instance, if the caption be omitted, —
neither the book nor the copy can be
received. K. v. Ward, 6 C. & P. 366,
explained in R. v. Yeoveley, 8 A. & E.
818, 819; Giles v. Siney, 13 W. R. 92.
The decrees or other action of ec-
clesiastical courts may be proved, if it
appear there is no other record, by the
minute books in which they are en-
tered, or by copies of such books.
Houliston V. Smyth, 2 C. & P. 25 ; R.
V. Hains, Comb. 337, per Lord Holt;
Skin. 584, S. C. And by the prac-
tice of the house of lords a judgment
may be proved, either by an examined
copy of the minute, or by producing a
copy of the journal in which it is en-
tered, purporting to be printed by the
authorized printer. Jones v. Randall,
1 Cowp. 17; Taylor's Ev. Ibid. § 1408.
It is otherwise, however, when the
object for which the testimony is of-
fered is to prove an admission of a
party (infra, §§ 828, 839), or to estab-
lish the fact that a certain judicial pro-
ceeding has taken place ; as, for in-
stance, that a trial has been had, a
verdict given, or a writ issued, with-
out regard to the facts disputed at the
trial, found by the jury, or mentioned
in the writ, and irrespective of all ul-
terior proceedings in the cause; in
which cases it has been held that the
record need not be formally drawn up.
Pit ton V. Walter, 1 Str. 162; Fisher
V. Kitchingham, Willes, 367. Infra,
§§ 828, 831. In R. v. Gordon, C. &
Marsh. 410, Lord Denman held that
an allegation in an indictment for per-
jury, that judgment was " entered up "
in an action, was proved by producing
from the judgment office the book in
which the inscription was entered. On
the other hand, in R. v. Thring, 5 C.
& P. 507 ; and R. v. Robinson, 1
Crawf. & D. C. C. 329, it was held
that, on an indictment for perjury in a
prosecution, the record of the former
trial must be made up.
1 Hageman v. Salisberry, 74 Penn.
St. 280; Numbers v. Shelly, 78 Penn.
St. 426.
§ 824.J
THE LAW OF EVIDENCE.
[book n.
and all relevant portions of the declaration are proof, for what
they are worth.i 'But a complete extension of the record will
not be exacted when all that is substantial appears.^ But in
some shape, if the judgment of a court is put in evidence to
effect a transfer of rights, the preliminary conditions of the judg-
ment must appear on the record. Even a sentence in admi-
ralty, to sustain its admissibility for such purpose, must have
attached to it the preliminary proceedings on which it is based ; ^
and a judgment of an ecclesiastical or probate court cannot prove
title without producing' the libel and answer, and the defensive
allegations.* To admit, for the same purpose, an award, when
made under rule of court or by voluntary submission, the nec-
essary constitution of the authority and regular procedure of the
arbitrators must appear.^ When, under the terms of the ref-
1 Numbers v. Shelly, ut supra. In
this case, Gordon, J., said; "The
whole record was admissible, and the
narr. was part of the record. Erb v.
Scott, 2 Harris, 20. As the judgment
was evidence, so was also the declara-
tion, for by it that upon which the
judgment was founded would appear.
We apprehend that, as the record, as
a whole, imports unity, so every part
of it is admissible to prove that which
it legitimately sets forth. It is no
doubt true, that, where the narr. con-
tains allegations not pertinent or ma-
terial to the case, such allegations
would not be admissible. Such, how-
ever, was not the case with the matter
in hand; the waiver, as set forth, was
not only pertinent and material, but it
was part of the record."
" See supra, § 95. " It is not now
denied that the record of the court of
common pleas for Luzerne County, in
the State of Pennsylvania, offered in
evidence by the plaintiff, was duly au-
thenticated according to the statutes of
the United States and of this common-
wealth. U. S. Sts. 1790, c. U ; 1804, c.
66; Gen. Sts. o. 181, § 61. It is not
extended with the formality and accu-
racy required in the records of our own
70.
courts, but it is sufficient in substance,
and contains all the essential requisites
of a judicial record. It shows the par-
ties to the suit, the subject matter of
the suit, jurisdiction over the parties,
a final judgment of the court for fixed
sums in damages and costs, and the
date of the judgment. Knapp v.
Abell, 10 Allen, 485. It was, there-
fore, rightly admitted in evidence.'"
Brainard v. Fowler, 119 Mass. 262,
Morton, J. In Kansas it has been
ruled that a certificate of the entry of
a foreign judgment may be received
as prima facie proof of the judgment,
without requiring the whole record to
be certified. Haynes v. Cowen, 15
Kans. 637.
» Com. Dig. Ev. C. 1; Taylor's Ev.
§1411.
* Leake v. M. of Wcstmeath, 2 M.
& Rob. 894, per Tindal, C. J., over-
ruling Stedman v. Gooch, 1 Esp. 6.
^ Antram v. Chace, 15 East, 209;
Brazier v. Jones, 8 B. & C. 124 ; Gis-
borne v. Hart, 5 M. & W. 56; Stal-
worth V. Inns, IS M. & W. 466;
Wright V. Graham, 3 Ex. K. 131;
Eads V. Williams, 4 De Gex, M. & G.
674; Lord v. Lord, 5 E. & B. 404.
CHAP. X.]
BECORDS VIEWED EVIDENTIALLY.
[§ 826.
erence, the award is to be good although it be executed by a
less number than all the arbitrators, it must be shown that the
arbitrator, who has not signed the instrument, has had notice to
attend the execution, and has omitted or refused to do so.^ To
awards, however, by public aduiinistrative officers, in the absence
of evidence of any usage inconsistent with the award, the maxim
Omnia praesumuntur rite esse aeta^ will be held to apply ;^
§ 825. The journals of a court, iu those jurisdictions where
■such journals are kept, though not technically part of journals of
the record, are to be regarded as proof, when duly veri- missibleto
fied, of the action of the court in any matter to which ^^tui„ „{
they relate. They are therefore admissible, in any <^oart.
view, provisionally.* In such case, the object being to show that
some other proceeding has occurred before the same court, a min-
ute of the former proceeding will be admitted in lieu of the
record, whenever the formal record cannot be presumed to have
been made up.^ The minutes of a court, however, cannot be in-
troduced to contradict a record.*
§ 826. What has been said of the minutes of the court
applies, a fortiori, to the docket entries, regularly made
by the clerk or prothonotary,^ which give the details
from which the record is made up, and which can be
Docket
entries not
admissible
wlien full
record can
be had.
1 White tt. Sharp, 12 M. & W. 712;
Wright V. Graham, 3 Ex. R. 134, per
Parke, B. ; in re Beck & Jackson, 1
Com. B. N. S. 695; Taylor's Ev. §
1420.
2 Infra, § 1318.
8 R. V. Haslingfield, 2 M. & Sel
558; Doe v. Gore, 2 M. & W. 321
Doe V. Mostyn, 12 Com. B. 268
Heysham v. Forster, 5 M. & R. 277
See Manning v. East. Cos. Ry. Co,
12 M. & W. 237 ; Williams v. Eyton,
27 L. J. Ex. 176; 2 H. & N. 771,
S. C; 4 H. &N.357, S. Cm Ex. Ch.
* R. V. Browne, 3 C. & P. 572.
6 R. I). Tooke, 25 How. St. Tr.446-
449 ; recognized in R. u. Smith, 8 B.
& C. 343 ; R. V. Robinson, 1 Craw. &
D. C. C. 329 ; R. V. Reilly, Ir. Cir.
R. 795, per Doherty, C. J.
So far, however, as concerns the
testimony of a former witness, a judge's
notes are not original evidence, but
can only be used to refresh his mem-
ory. Supra, § 180 ; and see Fitzpat-
rick V. Fitzpatrick, 6 R. I. 64. As to
justice's minutes, see Grosvenor v.
Tarbox, 39 Me. 129. As to trial
lists, see Wilkins v. Anderson, 11
Penn. St. 399.
8 Den V. Downam, 13 N. J. L. 135;
Mandeville v. Stockett, 28 Miss. 398.
See Strong v. Bradley, 13 Vt. 9.
T Com. V. Balkom, 3 Pick. 281 ;
Townsend v. Way, 5 Allen, 426 ; Kel-
ler u. Killion, 9 Iowa, 329; Prentiss
V. Holbrook, 2 Mich. 372 ; Hair v.
Melvin, 2 Jones L. 59 ; Handley v.
Russel, Hard. (Ky.) 145.
71
§ 826.J THE LAW OF EVIDENCE. [BOOK II.
received in place of the record until it is made up.^ No limit
is fixed for the time when this admissibility expires. " In New
Hampshire the record is never extended, except in very par-
ticular cases, unless a party desires a copy to sustain a suit
on it, or for some other use. And this is often made up twenty
or thirty years aftei^ the rendition of the judgment. Until such
extension, everything rests on the docket entries." ^ But though
while the record is as yet inchoate, docket entries are part of its
material, yet, after the record is extended, they cannot be used'
to impeach it collaterally. The court which controls the record
must be applied to for relief.^ Nor can such entries be received
as representing the record, when the record is completed. In
such case, if objection be made, the duty of the party offering
the proof is to have the record fully extended and certified.^
Thus in a suit against the indorser of a writ, the docket entry
stating the indorsal by the defendant is not admissible when
the writ itself can be produced.^ Bankruptcy also must be
proved by the whole record, not by certified copies of particu-
lar parts of the process.® Nor, in any view, can docket entries
be substituted for the entire record of the proceedings of another
court, if the object be to prove the judgment as a bar or as a
title.' 'If the record, however, be lost, the docket entries be-
1 Williams v. U. S. 17 Pet. 144 ; 1 » Leveringe v. Dayton, 4 Wash. C.
How. 290 ; Ellis v. Madison, 13 Me. C. 698 ; Southgate v. Burnham, 1 Me.
312; Willardw. Whitney, 49 Me. 235; 369; Willard v. Whitney, 49 Me.
Leathers B. Cooley, 49 Me. 837; Jay 235; Austin v. Howe, 17 Vt. 654;
V. Livermore, 56 Me. 109 ; State v. Read v. Sutton, 2 Cush. 115.
Neagle, 65 Me. 468; Willard v. Har- * Leveringe v. Dayton, 4 Wash,
vey, 24 N. H. 344; Benedict!). Cut- C. C. 698; Austin v. Howe, 17 Vt.
ting, 13 Mete. 181; Read v. Sutton, 2 654; Brown v. Hathaway, 10 Minn.
Cush. 115; Pruden v. Alden, 23 Pick. 303 ; Sharp v. Wickliffe, 3 Lilt. (Ky.)
184; Cent. Corp. v. Lowell, 15 Gray, 10.
106 ; Boyd v. Com. 36 Penn. St. 355 ; « Wilson v. Hobbs, 32 Me. 85.
Boothe u. Dorsey, 11 Gill & J. 247; " Waterman v. Robinson, 5 Mass.
Garfield v. Douglass, 22 111. 100; East- 303; Moore v. Voss, 1 Cranch C. C.
man v. Harteau, 12 Wise. 267; Hart- 179. See infra, § 829.
ley I). Chandler, 5 Ala. 867; Governor 'Leveringe v. Dayton, 4 Wash.
i). Bancroft, 16 Ala. 605; Ross v. 698; Austin v. Howe, 17 Vt. 654;
Davis, 30 Ga. 823. Brown v. Hathaway, 10 Minn. 303 ;
" Willard v. Harvey, 24 N. H. 344; Sharp v. Wickliflfe, 3 Litt. (Ky.) 10.
cited Jay v. Livermore, 56 Me. 117.
72
CHAP. X.] RECORDS VIEWED EVIDENTIALLY. [§ 828.
come primary evidence.^ When lost, the docket entries can be
proved by parol.^
§ 827. An ancient record, taken from the proper depository,
may be proved in fragments, when no fuller proof is at- Rule re-
tainable.3 Thus it has been held in England, that an- ^^^^^^^ '"
cient depositions may be read without the interroga- '^^'^""■'is-
ries, or, as the case may be, without the bills and answers to
which they relate, proof being given that fruitless search has been
made for the interrogatories or bill ;* and so as to ancient sur-
veys, and returns to iffquisitions, coming from the proper custody,
though the commissions on which such surveys and inquisitions
were based could not be found.^ It is otherwise, however, when
the fragments offered have no internal evidence of authority.^
§ 828. It frequently happens, as is elsewhere incidentally
noticed,'' that record proof is appealed to merely to
establish evidentially (as distinguished from disposi- tial pur-
tively, or from estoppel) some circumstance relevant to tions of
the case.^ Thus, for instance, it may be one of the te^ad^™^^
links of proof in a case that, as a mere evidential fact, "rits'' 11°/'
a decree of chancery was made on a particular day ; and t^eir re-
if so, it will be necessary only to prove the decree.**
Or again, the object is to prove that A. B. was resident at C. at
the particular time. As an item of proof in such a case, it is ad-
missible to put in evidence a justice's writ, of the date in ques-
tion, in favor of A. B. of C.^" If the object be to prove an arrest
1 Harvey v. Thomas, 10 Watts, 63; « Taylor's Ev. § 1423, citing Evans
Boyd V. Com. 36 Penn. St. 355. v. Taylor, 7 A. & E. 617 ; 3 N. & P.
2 Pruden v. Alden, 23 Pick. 187; 174 ; Vaux Barony, Min. Ev. 67;
Tillotson V. Warner, 3 Gray, 574. Leighton v. Leighton, 1 Str. 308.
See supra, § 135. ' Supra, § 820, 823 ; infra, § 1082.
* See fully supra, § 136. ^ See Benedict v. Heineberg, 43 Vt.
* Bayley u. Wylie, 6 Esp. 85 ; Rows 231; Lee v. Stiles, 21 Conn. 500;
V. Brenton, 8 B. & C. 765 ; Byam v. Smith M.Pattison, 45 Miss. 619; Watts
Booth, 2 Price, 234. Supra, § 136. v. Clegg, 48 Ala. 561 ; and see English
* Taylor's Ev. § 1423, citing Rowe cases cited in note 7, § 824.
V. Brenton, 8 B. & C. 747 ; Doe v. » Blower v. HoUis, 1 C. & M. 396
Roberts, 13 M. & W. 520; Anderton Leake v. Westmeath, 2 M. & Rob. 397
V. Magawley, 3 Br. P. C. 588 ; Gab- Attwood v. Taylor, 1 M. & Gr. 289
bett V. Clancy, 8 Ir. R. 299 ; and see Whitmore v. Johnson, 10 Humph,
supra, §§ 137, 200; Little v. Downing, 610.
37 N. H. 355; Hawkins v. Craig, 1 B. " Cavendish v. Troy, 41 Vt. 99.
Mon. 27.
73
§ 828 a.]
THE LAW OF EVIDENCK.
[book II.
or attachment, the officer's return to this effect establishes a
primd fade case.^ And, generally, when the object is to in-
troduce certain record facts, as part of the indicatory evidence
of a case (as when the object is to show that a certain writ
issued, or was returned in a particular way), then the pertinent
portions of a record may be certified and put in evidence sep-
arately.^ But where a sheriff sues a purchaser at sheriff's sale
for damages for breach of contract of sale, the judgment, as well
as the execution, must be put in evidence.^
§ 828 a. By strict practice, depositions in chancery cannot be
So with read without bill and answer in the case in which
tionrand they were taken.* In such case, however, the bill and
1 Allen V. Gray, 11 Conn. 95
Browning v. Hanford, 5 Denio, 586
Boynton v. Willard, 10 Pick. 166
Ferryman v. State, 8 Mo. 208.
2 See infra, § 834; Tindall v. Mur-
phy, Hempst. 21 ; Oldtown v. Shap-
leigh, 33 Me. 278 ; Potter u. Tyler, 2
Mete. (Mass.) 58; Huntington v. Rum-
nill, 3 Day, 390; Lee v. Stiles, 21
Conn. 500; Spoor v. Holland, 8 Wend.
445 ; Glenn v. Garrison, 1 7 N. J. L.
1 ; Capling v. Herman, 17 Mich. 524;
Chicago K. R. v. Mahan, 42 111. 159;
Sowden v. Craig, 26 Iowa, 166 ; Hoh-
son u. Doe, 4 Blackf. 487 ; Chinn v.
Caldwell, 4 Bibb, 543 ; Lock v. Win-
ston, 10 Ala. 841; Creagh v. Savage,
14 Ala. 454 ; Smith v. McGehee, 14
Ala. 404 ; Price u. Emerson, 14 La.
An. 141 ; Henderson v. Cargill, 31
Miss. 367 ; Lee u. Lee, 21 Mo. 657 ;
Vassault w. Austin, 32 Cal. 597. See
Myers v. Clark, 3 Watts & S. 535;
Wharton Peer. 12 CI. & F. 801.
" The return ' not found,' upon the
execution against the person, was suf-
ficient evidence against the sheriff of
the escape of the debtor, and that the
sheriff had not detained him in custody.
2 R. S. 382, § 31 ; Bradley v. Bishop,
7 Wend. 853 ; Boomer v. Laine 10,
Ibid. 525." Earl, C, Bensel u. Lynch,
44 N. Y. 165. See infra, § 834.
74
" The effect of a writ of fieri facias
varies according to circumstances. If
an execution debtor bring an action
against the sheriff for seizing his
goods, the defendant may justify his
conduct by producing the writ with-
out any copy of the judgment ; but if
the action be brought by a stranger,
both the writ and the judgment must
be proved. Doe v. Murless, 6 M. &
Sel. 1 14, per Bayley, J. The reason
for this distinction seems to be, that
in the former case the plaintiff, hav-
ing been a party to the original action,
must be aware of the existence of the
judgment, and might have moved to
set it aside, if it be open to objection.
Doe V. Murless, 6 M. & Sel. 114, per
Bayley, J. The rule being once es-
tablished, it applies as well to a case
where the vendee of the sheriff is a
party, as where it is the sheriff him-
self, and where he is plaintiff as well
as where he is defendant. Perhaps,
however, the rule does not apply,
where the purchaser from the sheriff
is the execution creditor." 2 Ph. Ev.
95; Taylor, § 1570.
» Gaskell V. Morris, 7 Watts & S.
32.
* Infra, § 1104; Laybourn v. Crisp,
4 M. & W. 326, per Ld. Abinger;
Blower v. HoUis, 1 C. & M. 396,
CHAP. X.J
KECOEDS VIEWED EVIDENTIALLY.
[§ 829.
answer are not evidence for the jury, and only for the answers in
judge, for the purpose of determining whether the
depositions are evidence, by seeing what was in issue in the
suit.i In any way, depositions, by themselves, may be put in
evidence, as admissions against the party making them, without
putting in evidence the rest of the record.^ And although an
answer in chancery, in the old practice, could not be put in evi-
dence without putting in evidence the bill,^ in England this
is now changed by the new rules ; and even in the old practice,
the reading of the interrogatory part of the bill was alone re-
quired, and that only when the answer was ambiguous, without
referring to the questions.* To prove reputation, also, a part of
an ancient record may be introduced.^
§ 829. Under the American bankrupt system, certified copies
of the assignment in bankruptcy, and of an assessment
decreed by the court, are admissible to sustain the right assign-
of the bankrupt assignee to sue for the assessment.^
Maule, argu.; % Ph. Ev. 149 ; B. N.
P. 240; Nigthingal v. Devisme, 5 Burr.
2594.
1 Chappel V. Purday, 14 M. & W.
303. See, also, Cazenove v. Vaughan,
1 M. & Sel. 4.
2 Highfield v. Peake, M. & M.
109. Supra, § 824 (note 7).
s See infra, § 1105.
* Pennell v. Meyer, 2 M. & Rob.
98 I 8 C. & P. 470 ; S. P., McGowen
V. Young, 2 St. (Ala.) 276.
6 Supra, §§ 200, 827.
8 Michener v. Payson, U. S. Cir-
cuit Ct. Phil. Ap. 75, reported in
Weekly Notes of Cases. McKennan,
C. J., said : —
" The first assignment of error re-
lates to the admission in evidence of
a record of proceedings in bankruptcy
in the district court for the Northern
District of Illinois, against the Repub-
lic Insurance Company of Chicago, as
assignee of which the defendant in
error brought this suit. It was ob-
jected to on the ground that it does
not purport to be a copy of the whole
record, but it was admitted to show :
(1.) an assignment to the plaintiff be-
low ; and (2.) an assessment by the
authority of the bankruptcy court upon
the stock of the bankrupt company to
pay losses. There can be no doubt of
the admissibility of this record to show
the assignment, because the 14th sec-
tion of the bankrupt act expressly
provides that a copy thereof, duly
certified by the clerk of the court,
under the seal thereof, shall be con-
clusive evidence of the assignee's title
to sue for the bankrupt's property.
" But was it properly admitted for
the additional purpose for which it
was offered. The bankrupt act, while
it enacts that the proceedings in all
cases of bankruptcy shall bo deemed
matters of record, does not treat these
proceedings as constituting an integral
record, for it declares that they shall
not be recorded at large, but shall be
filed, kept, and numbered in the oflice
of the clerk of the court ; and copies
of such records, duly certified by that
officer, under the seal of the court, are
75
§ 831.J THE LAW OF EVIDENCE. [BOOK H.
The schedule also, filed by a bankrupt, is competent evidence on
the issue whether his discharge was fraudulent.^
§ 830. In order, however, to admit separate portions of record
But such to prove certain facts, they must be shown to be com-
m^thl Plete in their relation to such facts.2 Thus, if the ob-
compiete. ject be to show that a search warrant legally issued,
it must appear that it was preceded by the proper oath ; ^ if
the object is to prove service of process, an officer's return must
be set forth.* It is also stated that writs and warrants, before
their return, must be proved by actual production, though after
their return, when they become matters of record, they are
provable by copies.^
§ 831. It may happen that it may be material to prove that
Verdict in- Verdict was taken in a particular case in a particular
without ^ ■^^y? iiot for the purpose of concluding the parties, but
record. fQj. evidentiary effect ; e. g. for refreshing the memory
of a witness, or for forming one of the links of the chain of circum-
stantial evidence in a matter collateral to the merits of the ver-
dict. In such case the verdict may be put in evidence as a mere
evidentiary fact, not as in any way showing that the verdict was
made presumptive evidence of all the er, 3 Teates, 184; Saflford ». Grout,
facts therein stated. It would, there- 120 Mass. 20; Magoon v. Warfield, 3
fore, seem to be the intent of the act G. Greene, 293.
that, in so far as any of these proceed- ^ Stevens v. Thompson, 17 N. H.
ings might be used as evidence, copies 103. See Simpson v. Carleton, 1 Al-
of them are to be authenticated as len, 109.
separate records, and so are eompe- ^ Buford «. Hickman, 1 Hempst.
tent presumptive evidence of the facts 232; Glenn w. Garrison, 17 N. J. L.
stated in them. The certificate of the 1 ; Kendrick v. Kendrick, 4 J. J.
clerk of the court authenticates the Marsh. 241; Welch y. Walker, 4 Port,
copies of the papers and proceedings 120 ; Vassault v. Austin, 32 Cal. 597.
contained in the record ' as true copies ' Halsted v. Brice, 13 Mo. 171.
of all the papers filed, proceedings * Peers v. Carter, 4 Litt. (Ky.)
had, and record and docket entries 268 ; Lyne v. Bank, 5 J. J. Marsh,
made in said case, and of the whole 545.
thereof in any way relating to an as- ' Taylor's Evidence, § 1424, citing
sessment upon the stockholders of said B. N. P. 234.
company,' &c. It is an exemplifica- The mere fact of a paper being
tion of all ' matters of record ' touch- found among a bundle of papers in a
ing the assessment, and as such was clerk's office does not make it an of-
properly admitted to show that fact." fice paper, and so admissible. Bank
See, to the same effect, Scott w. Leath- v. Donaldson, 6 Penn. St. 179.
76
CHAP. X.]
RECORDS VIEWED EVIDENTIALLY.
[§ 832.
true, but simply as proving that it was taken.^ For the purpose
of proving reputation, a verdict, without judgment, has been
held admissible,^ even against strangers, when the verdict goes
directly to reputation. But this holds good only as to ancient
verdicts and such as have been acquiesced in by the parties ; ^
and, as a general rule, a verdict cannot be put in evidence unless
judgment has been entered on it ; and then it binds by estoppel
only parties and privies.*
§ 832. We have observed that in order to prove an estoppel,
the whole record of a case must be put in. When a , , . .
^ Admissi-
record is put in for collateral purposes, however, not biiity of
... , . . , part does
only IS it true, as has been seen, that portions oi the notnecessi-
record can be put in by themselves, but there are cases sfonof'"'^'
in which they can only be received when offered sepa- ''''''''^•
rately.^ Thus in proving, as we have seen, the opposing party's
admissions in answer to a bill of discovery, only so much of the
bill as is necessary to explain the answers can be admitted.^
Whenever it happens that a part of a record may be admissible
evidence for one of the parties while the rest is inadmissible,
only the admissible part can be read to the jury.^
» R. V. Tooke, 25 How. St. Tr.
446 ; R. V. Smith, 8 B. & C. 343.
Supra, §§ 824 (note 7), 825.
s Supra, §§ 200, 827.
' Schaeffer v. Kreitzer, 6 Binn. 430.
* Davis V. Wood, 1 Wheat. 6; U.
S. V. Addison, 6 Wall. 291; Mahoney
V. Ashton, 4 Har. & M. 295 ; Donald-
son V. Jude, 2 Bibb, 57.
This strictness does not apply,
however, when the record is not at
the time complete. R. v. Browne, 3
C. & P. 572. Supra, § 825.
Where records are made up infor-
mally, i udgment, however, may be in-
ferred. Deloach v. Worke, 3 Hawks,
36; Foster v. Compton, 2 Stark. R.
364; Garland V. Scoones, 2 Esp. 648.
In England, a verdict cannot, in
general, be proved by putting in the
nisi prius record with the postea in-
dorsed, but a copy of the judgment
rendered upon it must be produced.
Pitton V. Walter, 1 Str. 162; Lee v.
Gansel, 1 Cowp. 3, per Ld. Mansfield
Fitch V. Smalbrook, T. Raym. 32
Fisher v. Kitchingman, Willes, 367
Gillespie v. Gumming, Long. & T. 181
Holt V. Miers, a.C. & P. 1 96. This has
been deviated from in two N. P. cases:
Foster v. Compton, 2 Stark. R. 364;
and Garland v. Scoones, 2 Esp. 648.
It has been said, also, that this rule
does not apply to the issues out of
chancery or out of court of admiralty,
because in these cases it is not usual
to enter up judgment. See Taylor's
Evidence, § 1407; Buller N. P. 324.
Nor to cases where the court in which
the verdict is rendered has no power
to set it aside. Felter v. MuUiner, 2
Johns. 181.
6 See supra, §§ 692, 823, 832.
^ McGowen v. Young, 2 St. (Ala.)
276. Supra, § 828.
' " When one party introduces and
77
§ 833 a.]
THE LAW OF EVIDENCE.
[book n.
§ 833. So, for other reasons than those just stated, when a
Parts of record is ancient, and when its imperfect condition is to
ancient be ascribed to the usual deteriorating effects of time, it
may be re- is admissible to prove such portions of it as are attain-
ceived. ^^^g^ imperfect as they may be.^ Thus ancient deposi-
tions may be read without putting in evidence commissions, bills,
or interrogatories, due proof being made of unavailing search.^
It is essential, however, that such documents should have been
produced from the proper office, and should on their face exhibit
primd facie evidence of regularity.^ When lost, such records
may be supplied by parol.*
§ 833 a. An officer's return in execution of a writ may be ad-
missible for the following purposes : —
reads from such a record that which
suits his purpose, the other party may-
read for his own benefit all that re-
lates to that subject, or require the
party introducing the record to do so.
But we know of no rule which, be-
cause a party may use a record or part
of it to establish a fact that can only
be established by record, authorizes
the same party to use everything else
which may be found in the record,
however irrelevant to the issue on
trial, or however it may violate other
well established principles of the law
of evidence.
" It is possible that the plaintiff had
a right to show that the divorce suit
against him was brought long after
the publication of the slander, and
after Tappan had been sued for it ;
and that for this purpose the record
was admissible. But this by no means
established his right to bring before
the jury the entire merits of the di-
vorce suit, the depositions taken in
that suit which bear hardly upon Tap-
pan, who was no party to it, and the
answer of Beardsley making charges
against Tappan, when the latter could
make no reply to them.
" Upon this question the case of the
78
Marine Insurance Co. v. Hodgson, 6
Cranch, 206 ; Rutherford v. Geddes,
4 Wall. 220; and Laybourn u. Crisp,
4 M. & W. 320, are directly in point;
and the authorities cited by Mr. Tay-
lor, in his work on Evidence, § 1413,
fully sustain the proposition laid down
by him, that depositions in chancery
can only be read when the bill shows
that the cause was against the same
parties, or those claiming in privity
with them." Miller, J., Tappan v.
Beardsley, 10 Wall. 435. See, also,
Numbers v. Shelly, 78 Penn. St. 426.
1 Beverley v. Craven, 2 M. & Rob.
140; Roweu. Brenton, 8 B. & C. 747;
3 M. & R. 133; Doe v. Roberts, 13
M. & W. 520 ; Kellington v. Trinity
College, 1 Wils. 1 70 ; Hawkins v. Craig,
1 B. Mon. 27. Supra, §§ 186, 184,
703, 827.
2 Bayley v. Wylie, 6 Esp. 85; Byam
ti. Booth, 2 Price, 234 ; Beverley ».
Craven, 2 M. & Rob. 140.
* Leighton t>. Leighton, 1 Str. 308;
Evans v. Taylor, 7 A. & E. 617; 3
N. & P. 174; Beaufort v. Smith, 4 Ex.
R. 450; Taylor's Evidence, § 1424.
Supra, §§ 136, 194.
* Supra, § 136.
CHAP. X.] RECORDS VIEWED EVIDENTIALLY. [§ 833 a.
1. As a link in title, or in any other way as a basis of suit.
In this case it goes in as part of a record, and cannot, Return of
for the reasons before stated as to records generally, be ^f evL"*^
collaterally attacked by parties or privies. If false, dence.
the duty of the party is to have it corrected by a direct applica-
tion to the court. Collaterally, if it is duly verified, and within
the jurisdiction of the court, it cannot be assailed.^ Even fraud
and collusion cannot be set up collaterally, when there is an op-
portunity to obtain correction by the court issuing the process.^
But when there is no opportunity of obtaining correction from
the court issuing the process, then the writ is open to collateral
explanation, or to attack on the ground of fraud, or of irregular-
ity by the parties.^ And while such a return may be explained,
when ambiguous, by parol ; * if it be hopelessly defective, no pre-
sumption of regularity can be used to give it efficiency.^ When
offered against strangers, the return, at the most, is, as we have
seen, hut primd facie evidence of the facts it avers.
2. As binding the officer making it. In such case the return is
a solemn admission, conclusive against the officer and his priv-
ies.^ He may, however, put in evidence supplementary facts,
J Fenwick v. Fenwick, 2 W. Bl. ' Butts v. Francis, 4 Com. 424 ;
788; Miller v. U. S. 11 Wall. 294; Watson «. Watson, 6 Conn. 334; San-
Brown V. Kennedy, 15 Wall. 597; ford u. Nichols, 14 Conn. 324; Patter-
Stinson w. Snow, 10 Me. 263; Hun- son v. Britt, 11 Ired. L. 383; Jackson
tress B. Tiney, 39 Me. 237; Clough u. v. Jackson, 13 Ired. 159; Grant v.
Monroe, 34 N. H. 381; Bowles u. Harris, 16 La. An. 323 ; Trott u. Mc-
Bowles, 45 N. H. 124; Wood v. Deane, Garock, 17 Yerg. 469.
20 Vt. 612; Tyler v. Smith, 8 Mete. * Infra, § 986.
599; Dooley v. Wolcott, 4 Allen, 406; ^ Infra, §§ 1302, 1311-12.
Allen V. Martin, 10 Wend. 300; Sam- ^ Infra, § 837 ; Herman on Execu-
ple V. Coulson; 9 W. & S. 62; Pax- tions, § 242; Foster v. Cookson, 1 Q.
son's Appeal, 49 Penn. St. 1 95 ; Rivard B. 419 ; Woodgate v. KnatchbuU, 2 T.
V. Gardner, 39 111. 125 ; Rowell v. R. 155 ; Field v. Smith, 2 M. & W.
Kleim, 44 Ind. 290; Brown v. May, 28 388. And see Cowan v. Wheeler, 31
Ga. 631; Hallowell v. Page, 24 Mo. Me. 439 ; Huntress v. Tiney, 39 Me.
690. Infra, § 983. 23; Johnston v. Stone, 40 N. H. 197 ;
' Infra, § 982. U. S. v. Lotridge, Benjamin i'. Hathaway, 3 Conn. 528 ;
1 McLean, 246; Egery v. Buchanan, Sheldon v. Payne, 7 N. Y. 463 ; Mc-
5 Cal. 53 ; Angell v. Bowler, 1 R. L Clelland v. Slingluff, 7 W. & S. 134 ;
77. As to mode of application, see Heffner «. Reed, 3 Grant's Cas. 245;
infra, § 983. See Freeman on Execu- McMicken v. Com. 68 Penn. St. 213 ;
tions, § 363. Splahn v. Gillespie, 48 Ind. 397.
79
§ 834.] THE LAW OF EVIDKNCE. [BOOK 11.
not inconsistent with his return.^ When offered in the officer's
favor, however, the return is but primd facie proof of its con-
tents.2 \
3. As binding the parties. A party issuing a ^.writ is also
bound by it, and is ordinarily estopped from disputing its aver-
ments.3 So far as concerns such parties, the verity of the returns
of the officers cannot, as we have seen, be disputed collaterally.
The redress must be by application to the court from which
the execution issues.* When, however, a return is ambiguous,
it may be explained by parol.^
4. As proving its legal effects. A retu.rn may be put in evi-
dence against strangers to prove that it issued ; or to prove, in
the same manner as may a judgment, its legal effects.^ But
when used to affect the interest of strangers, such returns, so far .
as concerns facts which it is the duty of the officer to state, are
only primd facie evidence, at the best, and as to other facts are
not evidence at all.'^
§ 834. A fi. fa. returned nulla bona, or returned in such a way
, as to indicate insolvency in the execution defendant.
Return of . . . '' c • i- i
nulla bona may be put in evidence as pnmd facie proof in a link
to prove in- in the evidence to prove such insolvency.® To the exe-
soivency. cution, howevcr, it has been held proper that the record
1 Infra, §§ 988, 991. 4 Dev. 297; Crow v. Hudson, 21 Ala.
2 Freeman on Executions, § 366. 561 ; Kendall v. White, 19 Mo.
8 Ibid. Infra, § 1118. 248.
^ Infra, §§ 982-3. See Freeman on ' Cow. & Hill's Notes to Phil, on
Executions, § 364. Ev. No. 383; Freeman on Executions,
6 Infra, § 986. Herman on Exe- § 365; Angler v. Ash, 6 Fost. 105;
cutions, §§ 240, 244, 295. Claggett v. Richards, 45 N. H. 363;
8 See supra, §§ 822-4. K. v. El- With«jrell w. Goss, 26 Vt. 750; Bott «.
kins, 4 Burr, 2129; Gyfford v. Wood- Burnell, 11 Mass. 165; Bruce u. Hol-
gate, 11 East, 299 ; Oldtown v. Shap- den, 21 Pick. 189 ; Phillips v. Elwell,
leigh, 33 Me. 278; Claggett v. Rich- 14 Oh. St. 244. See infra, § 1155.
ards, 45 N. H. 363; Hathaway v. » Brown v. Brooks, 25 Penn. St.
Goodrich, 5 Vt. 65; Witherell v. Goss, 210; Wheelock t>. Kost, 77 111. 296 ;
26 Vt. 750 ; Whitaker v. Sumner, 7 Collins «. Fitzpatrick, 6 J. J. Marsh.
Pick. 189; Potter v. Tyler, 2 Mete. 67; Buttram w. Jackson, 32 Ga. 409;
(Mass.) 58; Cornell v. Cook, 7 Cow. McMurphy v. Bell, 16 La. An. 369;
310; Browning v. Hanford, 7 Hill, Eichelberger u. Pike, 22 La. An. 142.
120 ; DiUer v. Roberts, 13 S. & R. 60; See Palister v. Little, 6 Greenl. 350;
Paxson's App, 49 Penn. St. 195 ; Hill Meyer v. Mohr, 1 Robt, (N. Y.) 333 ;
V. Kling, 4 Oh. 137; Phillips v. El- Carr v. Youse, 39 Mo. 346. See
well, 14 Oh. St. 244 ; Bank i'. PuUen, Leonard v. Simpson, 2 Bing. N. C. 176.
80
CHAP. X.] RECORDS AS ADMISSIONS. [§ 836.
should be attached ; ^ and even if this be dispensed with, the ex-
ecution must have the seal of the court.^ Proceedings in insol-
vency are in like manner admissible to prove, in collateral pro-
ceedings, the debtor's insolvency.^
§ 835. As between the parties, proceedings in error, including
bills of exceptions, are admissible.* But this will not Bills of ex-
authorize the reading, on a second trial, of ex parte an^"reWew
statements introduced into bills of exceptions or appli- {""gltois-
cations for review.^ A bill of exceptions, on the plea siWe.
of res adjudicata, is admissible to show the identity of the two
suits.^
IX. RECORDS AS ADraSSIONS.
§ 836. A judgment may be also treated as evidentiary when
it involves a self-disserving admission of the party jjecord
against whom it is offered.'^ Thus the record of a "^^ 5* "-
, . . ceived
judgment on default, which has been paid, recovered when it in-
VolvCS All
in a former suit between the same parties, upon a note admission
of the same character as that in suit, is admissible in party^
the latter suit.^ A plea of guilty, in a criminal case, *^*'°^jt j,
may be in like manner and for similar purposes put in offered,
evidence.^ A judgment may be thus used even when offered by
a stranger.!** A., for instance, brings against T. a suit in which
A., as we shall hereafter see, charges T. with damaging goods
intrusted to A. by P. ; P., in a suit against A., may use the rec-
ord of the suit of A. against T. for the purpose of showing that
1 Tindall v. Murphy, Hempst. 21 ; Beauchamp v. Mudd, Hard. (Ky.)
Glenn u. Garrison, 17 N.J. L. 1; State 163; Warden «. Mendocino County,
V. Records, 5 Harr. (Del.) 146 ; Vas- 32 Cal. 655.
sault V. Austin, 32 Cal. 597; Coonce * Wheeler u. Ruokman, 35 How. Pr.
V. Munday, 3 Mo. 374. See, how- 350; Francis v. Hazlerig, 1 A. K.
ever, to the effect that the record of Marsh. 93 ; Beeler v. Young, 3 Bibb,
the judgment is unnecessary, Potter 620.
V. Tyler, 2 Mete. (Mass.) 58. As to ' Sharp v. Carlile, 5 Dana, 487.
introducing, for other purposes, single ' Boston v. Bichardson, 13 Allen,
writs, see supra, § 828. 146; Truby v. Seibert, 12 Penn. St.
2 Davis V. Ransom, 26 HI. 100. 101 ; McDermott v. Hollman, 70 Penn.
8 Hey wood v. Reed, 4 Gray, 574; St. 52.
Simpson v. Carleton, 1 Allen, 109 ; ' City Bank v. Dearborn, 20 N. Y.
McMurphy v. Bell, 16 La. An. 369. 244.
* Levers v. Van Buskirk, 4 Penn. ° See supra, § 776 ; infra, §§ 838,
St. 309; Voorhies v. Eubank, 6 Iowa, 1113-U20.
274 ; Emery v. Whitwell, 6 Mich. 474 ; " Smith v. Shackleford, 9 Dana, 452.
VOL. II. 6 81
§ 837.] THE LAW OF KVIDENCE. [BOOK H.
A., at the time, held P.'s goo.ds.i The same rule applies as to
the admissibility of parts of a record. So far as these are used
as substitutes for evidence in a trial, and are acted upon by the
opposite party, they cannot, except in cases of fraud or gross
mistake, be withdrawn.^ The effect of such admissions, so far
as concerns strangers, is considered in another section.^
§ 837. When an officer, or his sureties, is sued on his return.
Parties then such return is conclusive against him so far as it
selves by'" involves admission of the reception of goods by him-
mfss'iorfof ^^^^^ Returning that the goods were taken as prop-
record, erty of the defendant does not estop him, however,
from showing that the goods were not the property of the de-
fendant.^ A party, also, who has obtained possession of property
by decree of court solemnly prayed for by himself, cannot after-
wards, in a suit against him to recover claims on such property,
deny the ownership.^ Again : a party may preclude himself
from offering evidence inconsistent with the attitude assumed by
him in a particular suit. Thus whenever a party solemnly, on
record, claims and obtains a right or privilege, he is ordinarily
precluded afterwards, even as against strangers, from denying
such right or privilege.^ A party, also, who recognizes another
on record as the possessor of a property or privilege, is estopped,
in the same suit, from denying such property or privilege ; ^
' Tiley v. Cowling, 1 Ld. Ray. 744. The Mary, 1 Mason, 365 ; Pitts v.
3 Blain V. Patterson, 47 N. H. 523; Gilliam, 1 Head, 549.
Huntington v. Bank, 6 Pick. 340; El- ' Infra, § 1136 ; Bui. N. P. 242 ;
wood V. Lannon, 27 Md. 200 ; Adams Stephen's Ev. 52 ; Tiley v. Cowling,
V. Adams, 23 Ind. 50 ; Carradine v. 1 Ld. Ray. 744 ; Jermain v. Lang-
Carradine, 38 Miss. 698 ; Derail v. don, 8 Paige, 41; Giles v. Halbert, 12
Watterston, 18 La. An. 188. N. Y. 82 ; Bowen v. De Lattre, 6
8 See infra, § 1120. Whart. R. 430 ; Armstrong v. Fahne-
* Supra, § 833 a; infra, §§ 1110-20, stock, 19 Md. 58 ; Carlisle v. Foster,
1155 ; Stevens v. Bigelow, 12 Mass. 10 Oh. St. 199 ; Dunn v. Keegin, 4
434; Winchell v. Stiles, 15 Mass. 280; 111. 292 ; Hawkins v. Hall, 8 Ired. Eq.
Kuhlman v. Orser, 5 Duer, 242; Peo- 280 ; McQueen v. Sandel, 15 La. An.
pie V. Reeder, 25 N. Y. 302. See Bai- 140 ; Field v. Langsdorf, 43 Mo. 82.
ley u. Kimball, 26 N. H. 351. See, as to admissions in pleadings, in-
' Arnold v. Brown, 24 Pick. 89 ; fra, §§ 1110-20.
Hopkins v. Chandler, 17 N. J. L. » Kelleran k. Brown, 4 Mass. 443;
299. Hinsdale v. Larned, 16 Mass. 65 ;
« Flanigan v. Turner, 1 Black U. Kuypers v. Church, 6 Paige, 570 ;
S. 491. See, to same general effect. Piper v. Sloneker, 2 Grant (Penn.),
82
CHAP. X.] RECORDS AS ADMISSIONS. [§ 838.
though he may ofiEer evidence to explain, though not to contra-
dict, such admissions.^ It is scarcely necessary to add that the
rule before us does not prevent a party from trying several sep-
arate though inconsistent forms of action or pleas,^ nor from
making tentative averments in pleading, even though under oath,
as against third parties.^ And an heir, who in a bill in equity
against an executor admits the due execution of a will, is not
precluded, in proceedings before the surrogate, from contesting
such execution.*
§ 838. We will elsewhere notice the extent to which an attor-
ney may make admissions for his client.^ It is proper
to add at this place that the pleadings of a party in one may be ad-
suit may be used in evidence against him in another,
not as estoppel, but as proof, open to rebuttal and explanation,
that he admitted certain facts. But in order to bring such
admission home to him, the pleading must be either signed by
him, or it must appear that it was within the scope of the attor-
ney's authority to admit such facts.^ Yet even if such admis-
sions are thus brought home to the party, they are entitled to
little weight. At the time they were made they were self-serv-
ing, not self-disserving ; as a matter of practice, pleadings are
113; Kingsbury v. Buchanan, 11 Iowa, Allen, 212; Bliss v. Nichols, 12 Allen,
387; Johnstone v. Scott, 11 Mich. 232. 443; Brown v. Jewell, 120 Mass. 215;
1 Whitcher v. Morey, 39 Vt. 459; Cook v. Barr, 44 N. Y. 156 ; Tabb v.
Yawger «. Manning, SON. J. L. 182. Cabell, 17 Grat. 160. See Hammat
" Porter v. Nelson, 4 N. H. 130 ; o. Russ, 16 Me. 171 ; Ayers v. Ins.
Child V. Allen, 33 Vt. 476 ; Wheeler Co. 17 Iowa, 176 ; Meade v. Black,
V. Ruckman, 1 Roberts. (N. Y.) 408 ; 22 Wise. 241 ; Hobson v. Ogden, 16
Gillespie v. Mather, 10 Penn. St. 28 ; Kans. 388. As to estoppels by record
Zeigler v. King, 9 Md. 330 ; Hess v. admissions, see infra, §§ 1110-1120.
Heebie, 4 Serg. & R. 246. " The allegations by the defend-
' Hotchkiss V. Hunt, 49 Me. 213 ; ant in the suits brought by her were
Beatty t7. Randall, 5 AUen, 441 ; competent evidence in the nature of
Werkheiser o. Werkheiser, 3 Rawle, admissions of the facts in controversy.
326 ; McLemore v. Nuckolls, 1 Ala. They appear to have been made by
Sel. Gas. 591 ; Warren v. Hall, 6 her authority, and she prosecuted the
Dana, 455. See infra, §§ 1110-20. suits in which these allegations were
* Mason v. Alston, 5 Selden, 28. the foundation of her claim. Currier
5 Infra, § 1170. v. Silloway, 1 Allen, 19; Gordon v.
' Infra, § 1110 ; Parsons v. Cope- Parmelee, 2 Allen, 212. The latter
land, 33 Me. 370; Green v. Bedell, 48 case is a direct authority upon the
N. H. 546; Currier v. Silloway, 1 point." Hoar, J., Bliss y. Nichols, 1 2
Allen, 19 ; Gordon v. Parmelee, 2 Allen, 445.
83
§ 838.]
THE LAW OF EVIDENCE.
[book II.
often framed by counsel, rather to put an issue into shape, than
to exhibit the client's actual stand-point as to particular facts ;
and even where the chent signs such papers, he does so as a
matter of mere form.^ So far as concerns the party, pleadings
at common law are inadmissible, if disputed, as evidence of the
truth of the facts stated therein.^ A plea of guilty, in a crim-
inal issue, however, being presumed to be solemnly entered by
the defendant himself, may be put in evidence against him as
a confession of the fact, in a civil issue.^ And a plea verified
by affidavit, or an answer in chancery, may be properly viewed
as a solemn admission, susceptible of being introduced in other
suits against the party by whom it is intelligently made.* It
1 Melvin v. Whiting, 13 Pick. 184;
Owens V. Dawson, 1 Watts, 149 ;
Banks V. Johnson, 4 J. J. Marsh. 649;
Newell V. Newell, 34 Miss. 385. See
Church V. Shelton, 2 Curt. 271; Ram-
bler V. Choat, 1 Cranch C. C. 167.
That admissions not put in issue by
the pleadings will not be received in
evidence in equity, see Copeland v.
Toulmin, 7 CI. & F. 356.
a Boileau v. Rutlin, 2 Ex. 680.
In accordance with the distinction
just stated, it has been properly ruled
that a disclaimer of title in an action
at law on which judgment has been
entered, but which has been adjudged
by a decree in equity to be founded in
mistake,' is not admissible in a subse-
quent suit as evidence of an admission
by the party disclaiming. Currier v.
Esty, 116 Mass. 577.
" In the suit in equity between these
parties, it was adjudged that the dis-
claimer in the writ of entry and the
judgment thereon was founded in
misapprehension and mistake of facts,
and that the defendant should be per-
petually enjoined from availing him-
self of them, by way of estoppel,
against the plaintiff. Currier v. Esty,
110 Mass. 536.
" At the trial of the present action
of trespass, the defendant did not at-
84
tempt to disregard the decree in
equity, by availing himself of the dis-
claimer and the judgment at law as
an estoppel. He only offered the dis-
claimer as evidence of a declaration
by the plaintiff against his interest ;
and the judgment as vesting the title
in himself.
" But the disclaimer, having been
judged to be founded in mistake, was
no evidence of an admission by the
plaintiff. And a judgment upon a
disclaimer does not transfer title, or
operate otherwise than by estoppel.
Oakham v. Hall, 112 Mass. 535."
Gray, C. J., Currier v. Esty, 116
Mass. 577.
As to pleas in abatement as admis-
sions, see infra, § 1111.
As to equity practice, infra, § 1112.
As to paying money into court, in-
fra, § 1114.
* Supra, § 783 ; Anon, cited Phil.
Ev. 25 ; R. V. Fontaine Moreau, 11
Q. B. 1033; Bradley v. Bradley, 2
Pairf. 367 ; Green v. Bedell, 48 N. H.
546; Clark v. Irvin, 9 Ham. 131.
See supra, § 776.
* Infra, § 1116; McMahon v. Bur-
chell, 1 Coop. Ca. 209; Williams ».
Cheney, 3 Gray, 215; Central, &c.
Corp. V. Lowell, 15 Gray, 106; Van
Rensselaer v. Akin, 22 Wend. 549;
CHAP. X.J
RECORDS AS ADMISSIONS.
[§ 840.
has been held that the admission of a party, on an amicable ref-
erence of the correctness of an account, is evidence, however
slight, against him subsequently ; ^ though it is otherwise as to
an admission in a case stated for the opinion of the court,^ and
as to an admission in a plea, signed by a party's attorney in his
behalf, but rejected by the court.* Such admissions, when not
contractual, are always rebuttable.*
§ 839. Pleadings, however, so far as they consist in the written
contentions of the parties to a cause, are not in any pigadmss
view evidence, collaterally, of the truth of the facts notevi-
, , denoe of
they aver. They may, as part of a record, be intro- facte
duced for the purpose of showing, when it is relevant, third par-
that a particular issue was adjudicated in a particular *'®'"
way ; * but they are inadmissible, certainly as to strangers, for
the purpose of proving even such facts as were essential to the
finding.^
Stump V. Henry, 6 Md. 201 ; Hunter v.
Jones, 6 Sand. (Va.) 541 ; Earl v.
Shoulder, 6 Oh. 409 ; Tupper v. Kil-
duff, 26 Mich. 394; McNair v. Kag-
land, 1 Dev. N. C. Eq. 533 ; Cooper
V. Day, 1 Rich. Eq. S. C. 26; Lun-
day V. Thomas, 26 Ga. 537; Whit-
lock V. Crew, 28 Ga. 289; Brandon
V. Cabiness, 10 Ala. 156 ; McLemore
V. Nuckolls, 1 Ala. 6el. Ca. 591; S.
C. 37 Ala. 662 ; Pearsall v. McCart-
ney, 28 Ala. 110 ; Alford v. Hughes,
14 La. An. 727; Henderson v. Car-
gill, 31 Miss. 367; Cook v. Hughes,
37 Tex. 343. A party's answer to
a bill of discovery cannot of course be
put in evidence for hirasel£ Clark v.
Depew, 25 Penn. St. 509. See, how-
ever, Rees V. Lawless, 4 Litt. (Ky.)
219. That affidavits of a party are
admissible against him when admit-
ting facts pertin'Bnt to issue, though
the suit be by strangers, see Cook «.
Barr, 44 N. Y. 158; Fulton v. Gracey,
15 Grat. 314 ; Trustees v. Bledsoe, 5
Ind. 133 ; Davenport v. Cummings, 15
Iowa, 219 ; Mushat v. Moore, 4 Dev.
&B. 124.
In New York, it may be noticed, a
verified answer is not evidence unless
put in by the opposing party. " The
old equity rule, that where a bill is so
framed as to compel an answer on
oath, and the verified answer denies
any fact alleged in the bill, the alleged
fact is not established unless shown
by two witnesses, or by proof equiva-
lent to the testimony of two witnesses,
does not apply to pleadings under the
Code. A verified answer is not evi-
dence, and so does not weigh as one wit-
ness. Stilwell V. Carpenter, 62 N. Y.
639.
1 Tams V. Lewis, 42 Penn. St. 402.
See, as to other cases of record admis-
sions, infra, §§ 1110-20.
2 Hart's Appeal, 8 Penn. St. 32.
* Com. V. Lannan, 13 Allen, 563.
* Infra, § 1117. And see, generally,
Kimball v. Bellows, 13 N. H. 58;
Crump V. Gerock, 40 Miss. 765.
6 See Com. v. McPike, 3 Cush. 181.
' Ibid. ; Com. v. Goddard, 2 Allen,
148 ; Hunt v. Daniels, 15 Iowa, 146;
Shaw V. McDonald, 21 Ga. 395; Salt-
marsh !). Bower, 34 Ala. 613; Persons
85
§ 841.] THE LAW OF EVIDENCE. [BOOK H.
§ 840. The effect of a judgment on a demarrer, when offered
A demurrer to bar a Subsequent suit, has been already noticed.^
may be an ^ i • • -j. i,
admission. With regard to a demurrer as an admission, it may be
here stated that "the admission, even by way of demurrer,
to a pleading in -which the facts are alleged, is just as avail-
able to the opposite party as if the admission had been made ore
tenus before a jury." ^ At the same time, a " demurrer only
admits the facts which are well pleaded ; it does not admit the
accuracy of an alleged construction of an instrument when the
instrument is set forth in the record, if the alleged construction
is not supported by the terms of the instrument." ^ And so the
" mere averments of a legal conclusion are not admitted by a
demurrer, unless the facts and circumstances set forth are suffi-
cient to sustain the allegation." *
A demurrer to the plaintiff's evidence admits all the facts that
the evidence tends to prove.^
§ 841. Wherever a fact, pertaining to a record, is not entered
Certificate on the record, then, in ordinary practice, it may be cer-
miss^bieto tiffed to by the proper clerk, and the certificate received
whhhi^his' as evidence.^ Thus the certificate of a clerk of a circuit
range. court has been received to prove that a cause was not
tried at the circuit ; ^ and the certificate of a court of appeals is
evidence to prove reversal of a judgment.^
V. Jones, 12 Ga. 371; Shaw b. Ma- Ves. Jr. 78; Nesbitt w. Berridge, 8 L.
con, 21 Ga. 281. T. (N. S.) 76 | Murray u. Clarendon,
1 Supra, § 782. L. R. 9 Eq. 11; Dillon i>. Barnard, 21
2 Clifford, J., Gould v. R. R. 91 Wall. 430; Lea «. Robeson, 12 Gray,
U. S. (1 Otto) 533, citing Bouchard 280.
r. Bias, 3 Den. 238; Perkins II. Moore, ^Golden i^. Knowles, 120 Mass.
16 Ala. 17; Goodrich v. The City, 5 336; Com. v. Parr, 5 W. & S. 345;
Wall. 573; Aurora City v. West, 7 Brister v. State, 26 Ala. 108.
Wall. 99; Beloit v. Morgan, 7 Wall. « See supra, §§ 80, 120-126.
619. ' Wright v. Murray, 6 Johns. R.
8 Clifford, J., Gould v. R. R. 91 U. 286.
S. (1 Otto) 536. 8 Hoy «. Couch, 6 Miss. 188.
* Ibid.; citing Ford v. Peering, 1
86
CHAPTER XI.
STATUTORY EXCLUSION OF PAROL PROOF. STATUTE OF FRAUDS.
I. Genkeal Considekations.
Statutory assignments of probative
force, § 850.
Error in this respect of scholastic
jurists, § 851.
Intensity of proof cannot be arbi-
trarily fixed, § 852.
Relations in this respect of statute
of frauds, § 853.
n. Transfeks of Laio).
Under statute parol evidence can-
not prove leases of over three
years, § 854.
E tates in land can be assigned
only in writing, § 856.
Surrender by operation of law ex-
cepted, § 858.
Such surrender includes act by
landlord and tenant inconsistent
with tenant's interest, § 860.
Mere cancellation of deed does not
revest estate, § 861.
Assignments by operation of law
excepted, § 862.
In other respects writing is essential
to transfer of interest in lands,
§863.
Though seal is not necessary,
§865.
But interest in lands does not in-
clude perishing severable crops
and fruit, § 866.
Agent's authority need not be in
writing unless required by stat-
ute, § 867.
(As to equitable modifications
of statute in this respect, see
infra, § 903 et seq.)
in. Sales of Goods.
Sales of goods must be evidenced
by writing, unless there be part
payment, or earnest. Delivery
and consideration must appear,
Other material averments must be
in writing, § 870.
But may be inferred from several
documents, § 872.
Place of signature immaterial, and
initials may suffice, § 873.
When main object is sale of goods,
writing is necessary, § 874.
Acceptance and receipt of goods
takes sale out of statute, § 875.
Acceptance by carrier or express-
man is not acceptance by vendee,
§ 876.
Partial payment may take sale out
of statute, § 877.
IV. Guarantees.
Guarantees must be in writing, § 878.
Statutory restriction relates to col-
lateral, not original, promises, §
879.
In such case indebtedness must be
continuous, § 880.
V. Makkiage Settlements.
Marriage settlements must be in
writing, § 882.
VI. Ageeements in futueo.
Agreements, not to be performed
within a year, must be in writing,
§883.
VII. Wills.
Wills must be executed conform-
ably to statute, English Will Act
of 1838, § 884.
Provisions, in this respect, of stat-
ute of frauds, § 835.
Distinctive adjudications under
statutes, § 886.
Testator may sign by a mark, or
have his hand guided ; and wit-
nesses may sign by initials, and
without additions, § 889.
Imperfect will may be completed
by reference to existing doca-
ment, § 890.
87
§ 851.]
THE LAW OF EVIDENCE.
[book n.
Bevocation cannot be ordinarily
proved by parol, § 891.
Seyocation may be by subsequent
will, § 892.
Proof inadmissible to show destruc-
tion out of testator's presence, §
893.
To revocation, intention is requi-
site, and burden is on contestant,
§894.
Contemporaneous declarations ad-
missible, § 895.
Testator's act must indicate finality
of intentions, § 896.
So of cancellation and obliteration,
§897.
Parol evidence admissible to show
that destruction was intentional,
or was believed by testator, §
899.
Parol evidence admissible to nega-
tive cancellation, § 900.
VIII. Equitable Modifications op Stat-
ute.
Parol evidence not admissible to
vary contract under statute, §
901.
Parol contract cannot be substituted
for written, § 902.
Conveyance may be shown by parol
to be in trust or in mortgage,
§903.
Performance, or readiness to per-
form, may be proved by way of
accord and satisfaction, § 904.
Contract may be reformed on above
conditions, § 905.
Waiver and discharge of contract
under statute can be proved by
parol, § 906.
Equity will relieve in case of fraud,
but not where fraud consists in
pleading statute, § 907.
But will where statute is used
to perpetuate fraud, § 908.
So in case of part-performance, §
909.
But payment of purchase money is
not enough, § 910.
Where written contract is prevented
by fraud, equity will relieve, §
911.
Parol contract admitted in answer
may be equitably enforced, § 912.
I. GElSnERAL CONSIDERATIONS.
§ 850. The Schoolmen, as we have already seen, indulged in
Statutory a profusion of speculations as to the probative force
meiftsof °^ evidence ; declaring that certain kinds of evidence
ForMTtcT* were to be treated as half proof, other kinds as whole
evidence, proof, while Other kinds were to be accepted with cer-
tain qualifications arbitrarily preassigned, without regard to what
might be the actual truth. Similar rules with respect to the
force to be assigned to certain forms of evidence have been
adopted by some of our legislatures ; and no doubt this is within
their constitutional power.^ But when such statutes are based
upon distinctions philosophically absurd, — as when they enact
that there shall be no conviction of certain offences on circum-
stantial evidence, in defiance of the truth that all evidence is cir-
cumstantial, or when they assign a priori valuations to various
grades of admissible evidence, — they are open to the objection
of sacrificing the substance of truth to an illogical form.
§ 851. The error of the scholastic jurists, in this respect, may
1 See Hand v. Ballon, 12 N. Y. 541.
88
CHAP. XI.] STATUTORY EXCLUSION OF PAROL PROOF. [§ 852.
be readily explained. It should be remembered that jurispru-
dence, on its revival at the close of the Middle Ages, ^^^^^ .^^
was speculative rather than practical ; and that the sub- thisrespect
tie intellects of the then great juridical thinkers were scholastic
employed in constructing multitudes of imaginary cases, ^^™
and in settling for each arbitrary decisions in advance. The
judges by whom these rules were to be applied were usually plain
men, not versed in juridical distinctions ; and it was better for
the cause of public justice, so it was argued, that decisions, thus
announced before the hearing of the case, should be treated as
absolute. The reasoning thus adopted was that of demonstration
based on the simplest form of Aristotle : " All A. is B., C. is A.,
therefore C. is B ; " or, " All killing is malicious ; this is killing,
therefore this is malicious." Or, " No sensible father can disin-
herit a child ; A. is a sensible father, therefore he cannot disin-
herit a child." It is scarcely necessary to exhibit the fallacy
of such arguments. Either the major or the minor premise
must be false. In the illustrations before us, for instance, it
is neither true that all killing is malicious, as there are innu-
merable instances of non-malicious killing ; nor that no sensible
parent disinherits a child, for there are at least some cases in
which disinheritance is a wise parental act. The major pre-
mises of such syllogisms, therefore, should be changed from uni-
versal to particular, as follows : " Some killings are malicious ; "
" some sensible parents will not disinherit." It is obvious, how-
ever, that by such a process only a probable conclusion will be
reached ; a conclusion varying in probability with the extent of
the major premise. If we were able to say, " Nine cases out of
ten of killing are malicious," then we could conclude, supposing
that we had a purely abstract case before us, that it is nine to one
that the particular killing is malicious. Or if we could say, " In
only one case in ten does a parent intend to disinherit a child ; "
then we could conclude that it is nine to one that in the present
case the parent did not intend to disinherit the child.
§ 852. But the idea that we can ever have an abstract case
before us is a scholastic fiction, the product of acute intensity
but purely speculative minds dealing with an unreal cannot be
object. There can be no abstract killing proved in a fixed™" ^
court of justice to which the predicate of abstract malice can be
89
§ 853.] THE LAW OF EVIDENCE. [BOOK H.
arbitrarily attached. All killing proved is killing in the con-
crete ; killing of a particular person, attracting certain animos-
ities peculiarly to himself, killing by a particular person, un-
der particular circumstances. There is no killing proved which
is identical in its surroundings with any other prior killing on
record; there is no killing proved that does not present dif-
ferentia distinguishing it from the abstract killing of the School-
men. So with regard to the disinheriting parent. No two cases
of disinheritance are alike. No one case exists which does not
give the disinheriting act a tint which may remove it from the
category of the scholastic abstract disinheritance. So, to return
again to a trial which has been already frequently resorted to for
illustrations, we may apply the scholastic axiom that memory
weakens with time, to the claimant in the Tichborne case. Could
any statute, without flagrant injustice, compel a jury to say that
Roger Tichborne had in twenty years forgotten his French tutors,
his French surroundings, and even the French language which
was his boyhood's vernacular ? Or, without equal injustice, could
Lady Tichborne's recognition of the claimant be treated as con-
clusive, because a statute, based on the scholastic maxim, should
enact that parental recognition should be irrebuttable ? ^ Must
we not hold, to go from the illustration to the principle, that a
statute providing that certain evidence is to have a fixed and
absolute valuation can do no good, even in eases to which its
principle is applicable, and in other cases may do irretrievable
harm ? ^
§ 853. To the statute of frauds the objections which have
Relation been just notic.ed do not apply. That famous enact-
in this re- ment goes on a principle directly the reverse of the
spectofthe , , . , V. f , i . -, i ■ -,
statute of scholastic rules. By those rules admissible evidence
was divided into certain classes ; and to one class was
assigned the quality of whole proof, to another of half proof, to
another of quarter proof. The statute of frauds, on the other
hand, deals not with credibility, but with competency.^ It says :
" Now that important business is transacted largely in writing ;
1 See supra, § 9. 8 See Barrell v. Trussell, 4 Taun-
^ See Smith v. Croom, 7 Fla. 81; ton, 121; Rann ». Hughes, 7 T. E.
Gardner v. O'Connell, 5 La. An. 358; 850, n.
Johnson v. Brock, 23 Ark. 282.
90
CHAP. XI.] STATUTE OF FRAUDS. [§ 854.
now that every business man can write, and has by him. the means
of writing ; now that the temptation to perjury in fabrication of
claims resting only on oral evidence grows in proportion to the
growth of wealth exposed to litigation, it is essential to impose a
standard which shall require written proof for the legal establish-
ment of all important claims."^ For this purpose the statute
adopted in the reign of Charles II., at the motion of Lord
Chancellor Nottingham, prescribed a series of important limita-
tions, which, more or less modified, have been enacted throughout
the United States, and of which each day's experience adds to
the value. Beneficial as this statute has been in its past work-
ings, it has become still more important in the present condition
of our jurisprudence; and we can fully accept the opinion of
a learned Pennsylvania judge,^ that the statute " allowing the
parties in a controversy to be examined as witnesses on their
own behalf admonishes us that it would be unwise to relax any
of the rules of law arising out of the statutes of limitations, and
of frauds and perjuries."
n. TEANSFEK OF LANDS.
§ 854. By the statute as originally passed, all leases, estates,
and interest in lands, whether of freehold or for terms of g^ statute
years, which have been created by parol, and not put in ^eLce^csT -
writing, and signed by the parties or an agent author- not p™ve
ized in writing, are allowed only the force and effect of over three
estates at will ; except leases not exceeding the term of
three years from making thereof, whereon the rent reserved
shall amount to two thirds of the improved value. In the United
States there is much diversity in the enactments by which this
clause is now represented. " It is believed that they all, with the
exception of New York, agree in this, that if the agreement to
let be executory, and not consummated by the lessee's taking
possession, it cannot be enforced ; if it be by parol, the statute
prohibits any action upon such a contract. * If the lessee takes
possession, the question arises whether by the statute the lease is
1 See Rob. on Frauds, Pref. § 37 ; Edge v. Strafford, 1 Tyrw. 293;
'^ Paxson, J., 78 Penn. St. 49. Larkin v. Avery, 23 Conn. 304 ; Delano
' 1 Washburn's Real Prop. (4th v. Montague, 4 Cush. 42; Young v.
ed.) 614, citing Browne Stat. Frauds, Dake, 1 Seld. 463.
91
§ 856.] THE LAW OF EVIDENCE. [BOOK H.
binding as an agreement at common law, or the tenancy under it
is a mere tenancy at will, or the lease, as such, is to be deemed
void." 1 A lease which does not exceed three years from the time
of making is, under the English statute, valid, although parol.^
The same limitation obtains in " Georgia, Indiana, Maryland,
North Carolina, Pennsylvania, New Jersey, and South Carolina.
This term in Florida is two, and in the following states one year ;
namely, Alabama, Arkansas, California, Connecticut, Delaware,
Iowa, Kentucky, Michigan, Mississippi, New York, Nevada,
Rhode Island, Tennessee, Texas, Virginia, and Wisconsin. In
Maine, Massachusetts, New Hampshire, Ohio, and Vermont, all
such leases create tenancies at will only." ^
§ 855. " Estates at will," under the statute, are to be treated,
so it has been argued, as tenancies from year to year ; * though
more correctly, a party who, under the statute, is a tenant at will
for the first year, from the fact that his lease is void, becomes
a tenant from year to year, as soon as his yearly rent is re-
ceived.* As tenant, he is liable on any covenants of the lease
which do not relate to the question of the length of the term
avoided by the statute ; and the landlord is reciprocally liable
upon Slich covenants.^ A term of three years, to commence at a
future date, does not meet the requisitions of the statute; the
three years, to be within the meaning of the statute, must begin
with the date of the lease.'^ Where a parol lease is void under
the statute, the tenant, who holds during the whole term, may
quit without notice at the expiration of the term.^
§ 856. The third section of the statute of frauds virtually pro-
' Ibid. 6 Richardson v. Gifiord, 1 A. & E.
" Rawlins v. Turner, I Ld. Ray. 56; S. C. 3 M. & Gr. 512.
736; Bolton v. Tomlin, 5 A. & E. o Richardson ... Gifford, 1 A. & E.
856; Morrill v. Mackman, 24 Mich. 56; S. C. 3 M. & Gr. 512; Arden v.
286. Sullivan, 14 Q. B. 832 ; Beale v. San-
" 1 Washburn's Real.Prop. (4th ed.) ders, 3 Bing. N. C. 850 ; Tooker v.
614. See Birokhead v. Cummings, 4 Smith, 1 H. & N. 732.
Vroom, 44; Mayberry v. Johnson, 3 ' Rawlins v. Turner, 1 Ld. Kay.
Green, U6 ; Adams, v. McKesson, 53 736.
Penn. St. 83; Morrill «. Mackman, 24 8 Taylor's Ev. § 916; Berrey v.
Mich. 283. Lindley, 3 M. & Gr. 498; Doe v.
1 Clayton v. Blakey, 8 T. R. 8 ; Stratton, 4 Bing. 446; Doe u. Moffatt,
S. C. 2 Smith's L. C. 97; Berrey «. 15 Q. B. 257; Tress v. Savage, 4 E.
Lindley, 3 M. & Gr. 512. & B. 36.
92
CHAP. XI.] STATUTE OF FRAUDS. [§ 857.
vides that no estates of lands, whatever be the character of such
estates, shall be " assigned, granted, or surrendered," Estates in
except by a writing signed by the party, or by his ^^gf ^g^''^
agent duly authorized in writing, unless by act and only by
. . . writing.
operation of law. This section " has been followed,
more or less exactly, by the statutes of the several United
States, all of which require an instrument in writing in order to
the conveyance of lauds or other interests therein. And, with
the exception of three or four states, a deed under the hand
and seal of the grantor is necessary, if the interest to be trans-
ferred is a freehold one." i Where, however, acts are done
by the parties which are a part performance of the contract, a
court of equity Avill compel a specific performance of the con-
tract, wherever a fraud would be worked by vacating the con-
tract.^
§ 857. It should be observed that the effect of the statute, in
this section, is not to dispense with deeds when required by com-
mon law, but to require written instruments of transfer in cases
which the common law did not cover ; e. g. lands and tenements
in possession.^ It even precludes parol assignments and sur-
renders of leases for terms less than three years.*
^ 3 Wash. Real Prop. 235; Stewart Penn. St. 477; and see particularly
V. Clark, 13 Met. 79 ; Colvin v. War- infra, §§ 904, 909.
ford, 20 Md. 396 ; Underwood u. Camp- » Rob. on Frauds, 248; Lyon u.
bell, 14 N. H. 396. See, also, Wilson Reed, 13 M. & W. 303; Rowan v.
V. Black, 104 Mass. 406. Lytle, 11 Wend. 616 ; McKinney v.
" Fonbl. Eq. Laussat's ed. 150; Neale Reader, 7 Watts, 123.
V. Neale, 9 Wall. 1; Glass v. Hulbert, * Mallett v. Brayne, 2 Camp. 103 ;
102 Mass. 24; Phillips v. Thompson, Thomson v. Wilson, 2 Stark. R. 379;
1 Johns. Ch. 131; Parkhurst ii. Van Rowan ». Lytle, 1 1 Wend. 6 1 6 ; Logan
Cortland, 14 Johns. R. 15 -,8.0.1 v. Barr, 4 Harr. 546. See, however,
Johns. Ch. 284; Ryan v. Dox, 34 N. con/ra, McKinney n. Reader, 7 Watts,
Y. 312; Freeman t). Freeman, 43 N. 123; Greider's App. 5 Barr, 422. See,
T. 34; Weir u. Hill, 2 Lans. 278; however, as to how far an invalid as-
Syler u. Eckhart, 1 Binney, 378; Hill signment can operate as an underlease,
V. Myers, 43 Penn. St. 170; Riesz's Pollock u. Stacy 9 Q. B. 1033; Beard-
Appeal, 73 Penn. St. 485 ; De Wolf v. man v. Wilson, L. R. 4 C. P. 57. As
Pratt, 42 111. 207 ; Armstrong v. Kat- to surrender by act and operation of
tenhorn, 11 Oh. 265; Peters u. Jones, law, see Hamerton jj. Stead, 3 B. &
35 Iowa, 512; Townsend v. Sharp, C.482; Parmenter v. Reed, 13 M. &
2 Overton, 192. See Thompson v. W. 306; Foquet v. Moor, 7 Ex. R.
Gould, 20 Pick. 134; Wells v. Calnan, 870 ; Lynch v. Lynch, 8 Ir. Law R.
107 Mass. 514; Com. v. Kreager, 78 142. Infra, § 858 etseq.
93
§ 859.]
THK LAW OF EVIDENCE.
[book II.
§ 858.
Surrender
by opera-
tion of law
excepted.
The exception " act and operation of law," to the sec-
tion above noticed, has been much discussed. The sur-
render, to be within the exception, so has it been held,'
must be the act of the law, as distinguished from that
of the parties whose intent may be thereby overridden. A first
lease, for a greater term, is surrendered by accepting a second
lease, for a shorter term.^
§ 859. At the same time it is now held that nothing short of
an express demise will operate as a surrender of an existing
lease.3 But it is argued that if a lessee were to accept, in accord-
ance with his contract, a second lease voidable upon condition,
this, even in the event of its avoidance, would amount to a sur-
render of the former term ; because such second lease would
pass ab initio the actual interest contracted for, though that in-
terest would be liable to be defeated at some future period.^
But a lease will not, under the exception, be held to be surren-
dered by the acceptance of a void lease, which creates no new
1 Lyon V. Reed, 3 M. & W. 306.
2 See 1 Wms. Saunders, 236, c;
Hamerton v. Stead, 3 B. & C. 482;
Lynch v. Lynch, 6 Irish L. R. 142.
The exception applies primarily " to
cases where the owner of a particular
estate has been a party to some act,
the validity of which he is by law
afterwards estopped from disputing,
and which would not be valid if his
particular estate had continued to ex-
ist. There the law treats the doing of
such act as amounting to a surrender.
Thus, if a lessee for years accept a
new lease from his lessor, he is estop-
ped from saying that his lessor had not
power to make the new lease; and, as
the lessor could not do this until the
prior lease had been surrendered, the
law says that the acceptance of such
new lease is of itself a surrender of
the former. So, if there be tenant for
life, remainder to anothesf in fee, and
the remainder-man comes on the land
and makes a feoffment to the tenant
for life, who accepts livery thereon,
the tenant for life is thereby estopped
94
from disputing the seisin in fee of the
remainder-man ; and so the law says
that such acceptance of livery amoimts
to a surrender of his life estate. Again,
if tenant for years accepts from his les-
sor a grant of a rent issuing out of the
land, and payable during the term, he
is thereby estopped from disputing his
lessor's right to grant the rent; and
as this could not be done during his
term, therefore he is deemed in law to
have surrendered his term to the les-
sor." Lyon V. Reed, 13 M. k W. 306,
per Parke, B. See, to same effect,
Schieffelin v. Carpenter, 15 Wend.
400; Smith v. Niver, 2 Barb. 180.
8 Foquet v. Moor, 7 Ex. R. 870;
Crowley v. Vitty, Ibid. 319.
* Taylor's Ev. § 920, citing Roe v.
Abp. of York, 6 East, 102; Doe v.
Bridges, 1 B. & Ad. 847, 856 ; Doe v.
Poole, 11 Q. B. 716, 723; Fulmers-
ton V. Steward, Plowd. 107 a, per
Bromley, C. J.; Co. Lit. 45 a; Lloyd
V. Gregory, Cro. Car. 501 ; Whitley v.
Gough, Dyer, 140-146. See Jackson
V. Butler, 8 Johns. 394; Rowan v.
Lytle, 11 Wend. 616.
CHAP. XI.] STATUTE OF FRAljDS. [§ 860.
estate whatever,^ or even the acceptance of a voidable lease,
which being afterwards made void, contrary to the intention of
the parties, does not pass an interest according to the contract.^
Nor is a surrender worked by the single circumstance of a ten-
ant entering into an agreement to purchase the leased estate ; ^
though this may of course be done by written limitations express
or implied.* But where a tenant, in pursuance of a license to
quit, gives up possession, which is resumed by the landlord, this
will be deemed a surrender by operation of law, which will pre-
clude the landlord from recovering rent falling due after his re-
sumption of possession.^
§ 860. An important extension of the old construction of
" operation of law," has taken place in late years, surrender
Suppose the landlord, with the tenant's assent, followed tiononaw
by the tenant's surrender of the estate, conveys the ^iLgju^g
leased estate to a stranger ; is the tenant, in the teeth acts done
of such a conveyance, in which he himself participated, lord and
to continue in the enjoyment of his lease ? In equity, consistent
unquestionably, he would be precluded from further ^nt-sin^er-
intermeddling with the estate.^ Nor, such is now the ^^t.
better opinion, can he at law be held to have retained his rights.
The lease is surrendered by operation of law."
» Koe V. Abp. of York, 6 East, 86, v. Hartley, 19 L. J. C. P. 323 ; 9 Com.
explained by Abbott, C. J., in Hamer- B. 634, S. C. ; McKinney v. Reader,
ton V. Stead, 3 B. & C. 481, 482; 7 Watts, 123; Lamar u. McNamee, 10
Lynch v. Lynch, 6 Ir. Law R. 142, per Gill & J. 116; Browne on Frauds, §
Lefroy, B. ; Wilson v. Sewell, 4 Burr. 55. See Lounsberry o. Snyder, 31
1980; Davison v. Stanley, Ibid. 2213, N. Y. 514.
per Ld. Mansfield. « McDonnell v. Pope, 9 Hare, 705.
2 Doe V. Poole, 11 Q. B. 713; Doe ' Thomas v. Cook, 2 Stark. R. 408;
V. Courtenay, 11 Q. B. 702-722, over- S. C. 2 B. & A. 119; Dodd v. Acklom,
ruling Doe v. Forwood, 3 Q. B. 627. 6 M. & Gr. 672; Walker v. Uichard-
' Doe V. Stanton, 1 M. & W. 695, son, 2 M. & W. 882; Grimman v.
701; Tarte u. Darby, 5 M. & W. 601. Legge, 8 B. & C. 324; Davison v.
* Ibid. See Donellan v. Read, 3 Gent, 1 H. & N. 744 ; Beese v. Wil-
B. & Ad. 905; Lambert v. Norris, 2 liams, 2 C, M. & R. 581 ; Reeve v.
M. & W. 335. Bird, 4 Tyr. 612; Nickells v. Ather-
» Grimman v. Legge, 8 B. St C. 324; ston, 10 Q. B. 944 ; Lynch v. Lynch,
2 M. & R. 438, S. C; Dodd v. Ack- 6 Irish L. R. 131 ; Hesseltine v. Sea-
lom, 6 M. & Gr. 672; Phend v. Pop- vey, 16 Me. 212; Randall v. Rich, 11
plewell, 31 L. J. C. P. 235; 12 Com. Mass. 494; Lounsberry v. Snyder, 31
B. N. S. 334, S. C; Whitehead v. N. Y. 514; Smith u. Niver, 2 Barb.
ClifEord, 5 Taunt. 518. See Cannan 180; McKinney ti. Reader, 7 Watts,
95
§ 862.]
THE tAW OF EVIDENCE.
[book n.
§ 861. However it may be in equity,^ it is settled that at law
jj.^^^ ^ the cancellation of a deed, even though accompanied by
ceiiatioaof a Surrender of the land, cannot, under the statute of
not revest frauds, operate to revest, even by agreement of parties,
estate. ^j^^ estate, unless the solemnities prescribed by the stat-
ute be adopted.2 Nor can we infer surrender merely from the
deed being found cancelled in the possession of the lessor.^ But
where a deed has not been recorded, and the grantee, wishing to
sell the estate, delivers it up and cancels it, and the grantor exe-
cutes a new deed to the' purchaser, the title of the latter is good.^
§ 862. Assignments, as well as surrenders, may take place by
operation of law, and thus be excepted from the statute.
A lessor, for instance, dies intestate, in which case the
reversion vests in his heir at law ; or a lessee dies intes-
tate, and the lease vests in his administrator, by opera-
tion of law. Even an executor de son tort, so far as concerns
himself, may be treated as the assignee of a lease ; and in cases
of this class, when an action is brought against the heir, or ad-
ministrator, or executor de son tort, it has been held enough to
charge in the declaration that the reversion or lease respectively
came to the defendant " by assignment thereof then made." * A
similar assignment, by operation of law, passes, on a woman's
marriage, her chattels real to her husband. So when any person
is adjudged a bankrupt, his property, whether real or personal.
merits by
operation
of law ex-
cepted by
statute.
123; Lamar v. McNamee, 10 Gill &
J. 116. See qualifying remarks of
Lord Wensleydale, in Lyon v. Reed,
13 M. & W. 809, and comments there-
on in Taylor's Ev. § 926.
1 See Magennis v. MacCullough,
Gilb. Eq. E.236 ; Roe v. Abp. of York,
6 East, 86, 101 ; Wootley v. Gregory,
2 Y. & J. 536; Bolton v. Bp. of Car-
lisle, 2 H. Bl. 263, 264; Doe v. Thom-
as, 9 B. & C. 288; 4 M. & R. 218, S.
C. ; Walker v. Richardson, 2 M. & W.
882; Natchbolt v. Porter, 2 Vern. 112;
Rob. on Frauds, 251, 252; Ibid. 248,
249; Browne on Frauds, §§ 41, 214;
Butl6r V. Gardner, 8 Johns. R. 394;
Anderson v. Anderson, 4 Wend. 474;
Hunter v. Page, 4 Wend. 585 ; Rowan
V. Lytle, 11 Wend. 616.
2 See Bolton v. Bp. of Carlisle, 2
H. Bl. 263, 264 ; Walker v. Richard-
son, 2 M. & W. 892 ; Ward v. Lum-
ley, 5 H. & N. 87.
8 Browne on Frauds, § 60, citing
Holbrook v. Tirrell, 9 Pick. 105; Nason
V. Grant, 21 Me. 160 ; Mussey v. Holt,
4 Fost. 248 ; Farrar v. Farrar, 4 N.
H. 191; Dodge v. Dodge, 33 N. H.
487 ; Faulks v. Burns, 1 Green Ch.
(N. J.) 250; Mallory v. Stodder, 6 Ala.
801 ; Holmes !). Trout, 7 Peters, 171;
contra, Gilbert v. Bulkley, 5 Conn.
262; Raynor v. Wilson, 6 Hill, 469.
* PauU V. Simpson, 9 Q. B. 365;
Derisley v. Custance, 4 T. R. 75.
CHAP. XI.] STATUTE OF FKAUDS. [§ 863.
present or future, vested or contingent,^ becomes vested, without
any deed of assignment or conveyance, in the statutory assignees.
It is however settled, that a parol assignment by a sheriff of
leasehold premises, taken in execution under a fieri facias, is
void at law, though the assignee has entered and paid rent to
the head landlord.^
§ 863. By the fourth section of the statute certain solemnities
of writing are necessary to the transfer of an " interest , .
in lands ; " and multitudinous are the adiudications as respects
to what this term includes.^ The statute has been held essential
to extend to contracts to abate a tenant's rent ; * to sub- interest in
mit to arbitration the question whether a lease shall be '*"'*'■
granted ; * to assign an equitable interest ; ^ to relinquish a ten-
ancy, and let another party into possession for the residue of a
term ; "^ to permit the profits of a clergyman's living to be received
by a trustee ; ^ to become a partner in a colliery, which was to
be demised by the partnership upon royalties ; ^ to transfer an
easement ; i" to take furnished lodgings ; ^^ to sell a pew in a
church for an unlimited period ; ^^ to reserve a shed from the
operation of a deed ; ^^ to sell brick being part of a burned house ; ^*
1 See Stanton v. Collier, 3 E. & B ing, 15 Com. B. 652 ; Hodgson v.
274; Beckham v. Drake, 2 H. of L. Johnson, 28 L. J. Q. B. 88 ; E., B. &
Cas. 579; Rogers v. Spence, 12 CI. & E. 685, S. C.
Fin. 700 ; Herbert v. Sayer, 5 Q. B. 8 Alchin v. Hopkins, 1 Bing. N. C.
965; Jackson v. Burnham, 8 Ex. R. 102; 4 M. & Sc. 615, S. C.
173. » Caddick v. Skidmore, 2 De Gex
2 Doe V. Jones, 9 M. & W. 265 ; 5. & J. 52, per Ld. Cranworth, Ch. ; 27
C. 1 Dowl. N. S. 352. ' L. J. Ch. 153, S. C.
" See White v. White, 1 Harr. (N. " R. v. Salisbury, 8 A. & E. 716;
J.) 202; Keeleru. Tatnell, 3 Zabr. 62; Cook u. Stearns, 11 Mass. 533. See
Hall V. Hall, 2 McC. Ch. 269; Madi- Morse v. Copeland, 2 Gray, 302; Foot
gan u. Walsh, 22 Wise. 501. r. Northampton Co. 23 Conn. 223;
* O'Connor v. Spaight, 1 Sch. & Selden v. Canal Co. 29 N. Y. 639.
Lef. 306. See Taylor's Ev. § 948. " Edge v. Straftbrd, 1 C. & J. 391 ;
5 Walters v. Morgan, 2 Cox Ch. R. 1 Tyr. 293, S. C. ; Inman v. Stamp,
869. 1 Stark. R. 12, per Ld. EUenborough ;
« Smith V. Burnham, 3 Sumn. 435 ; Mechelen v. Wallace, 7 A. & E. 49 ;
Richards v. Richards, 9 Gray, 313; 2 N. & P. 224, S. C; Vaughan v.
Simms v. Killian, 12 Iredell, 252. Hancock, 3 Com. B. 766.
' Buttemere v. Hayes, 5 M. & W. " Baptist Ch.w. Bigelow, 16 Wend.
456; 7 Dowl. 489, S. C. ; Smith v. 28.
Tombs, 3 Jur. 72, Q. B.; Cocking v. " Detroit R. R. v. Forbes, 30 Mich.
Ward, 1 Com. B. 858; Kelly v. Web- 165.
ster, 12 Com. B. 283; Smart v. Hard- " Meyers v. Schemp, 67 111. 469.
VOL. II. 7 97
§ 864.] THE LAW OF EVIDENCE. [BOOK II.
to grant,! or otherwise to transfer to another a mortgagor's equity
of redemption ; ^ to procure, as a broker, the sale of a lease.^ But
as we shall see more fully hereafter, the statute has been held not
to include an equitable mortgage by the deposit of title-deeds ; *
or a collateral agreement by a lessee to pay a percentage on
money laid out by the landlord on the premises ; ^ or a contract
relating to the investigation of a title to land ; ^ or an agreement
for board and lodging, no particular rooms being demised ; ^ or
an irrevocable executed license for the enjoyment of an ease-
ment ; ^ or an agreement betw^een a landlord and tenant, that the
former shall take at a valuation certain fixtures left by the latter
in the house ; ^ or an agreement to take a family of boarders and
lodgers ; ^^ or a contract that an arbitrator shall determine the
amount of damages sustained by a party, in consequence of a road
having been made through his lands.^^
§ 864. The statute has been held, in England, not to cover
shares in a company possessed of real estate, if the company be
inoorporated by statute or by charter, and the real property be
vested in the corporation, who are to have the sole management
of it. In such case, the shares of the individual proprietors will
be personalty, and will consist of nothing more than a right to
participate in the net produce of the property of the company.^
1 Massey v. Johnson, 1 Ex. R. 255, Penn. St. 358; Vanmeter v. McFad-
per Rolfe, B. See Toppin v. Lomas, din, 8 B. Mon. 435.
16 Com. B. 145. 6 jjoby v. Roebuck, 7 Taunt. 157.
2 Scott V. McFarland, 13 Mass. 1= Jea^es v. White, 6 Ex. R. 873.
309; Marble v. Marble, 5 N. H. 374 ; ' Wright v. Stavert, 29 L. J. Q. B.
Kelley v. Stanbery, 13 Ohio, 408. See, 161 ; 2 E. & E. 721, S. C.
however, Pomeroy v. Winship, 12 ^ I Washburn's Real Prop. 4th ed.
Mass. 514. • 639; Angell on Watercourses, § 168;
« Horsey v. Graham, L. R. 5 C. P. Browne on Frauds, § 232.
9 ; 39 L. J. C. P. 58, S. C. » Hallen v. Runder, 1 C, M. & E.
* Russel t). Russel, 1 Br. C. C. 266 ; 3 Tyr. 959, S. C.
269; 12 Ves. 197; Hall w. McDuflf, 24 1° White v. Maynard, 111 Mass.
Me. 311 ; Hackett v. Reynolds, 4 R. 250.
1.512; Welsh v. Usher, 2 Hill Ch. " Gillanders v. Ld. Rossmore, Jones
166 ; Chase v. Peck, 21 N. Y. 584 ; Ex. R. 504 ; Griffiths v. Jenkins, 3
Keith V. Horner, 32 111. 526; Wilson New R. 489, per Crompton & Shee,
V. Lyon, 51 111. 530; Gothard v. Flynn, JJ., in Bail Ct. For the English ref-
25 Miss. 58; Jarvis v. Dutcher, 16 erences above, see Taylor, § 948.
Wise. 307. But see Bowers v. Oys- " Taylor's Ev. § 949 ; ' Bligh v.
ter, 3 Penn. R. 289 ; Hale v. Henrie, Brent, 2 Y. & C. Ex. R. 268 ; Brad-
2 Watts, 143; Strauss's Appeal, 49 ley r. Holdsworth, 3 M. & W. 422 J
98
CHAP. XI.] STATUTE OF FRAUDS. [§ 864.
In this country the same distinction is maintained.^ It has been
further ruled that the statute does not extend to the transfer
of interests in unincorporated companies, in any cases where
trustees are seised of the real estate in trust to use it for the
benefit of the shareholders, and to make profits out of it (to the
enjoyment of which the rights of the stockholders are restricted) ,2
as part of the stock in trade. On the other hand, if the trustees
hold the real estate in trust for themselves, and for co-adventur-
ers, present and future, in proportion to their number of shares,
then transfers of shares in such trust cannot be made without
writing.^ It has been further ruled that the question, under
which of these two species of trusts the lands of any particular
company may be held, is one of fact, to be determined in each
case by the jury.* But though land acquired by a partner-
ship for partnership purposes passes as personalty, so far as con-
cerns parties and privies, the mere agreement to form a part-
nership to deal in land cannot be enforced, or damages recovered
for its infringement, unless it be in writing.^ We may, in ad-
dition, notice, that scrip and shares in joint-stock companies,
whether incorporated or unincorporated, are not '■'■goods, ivares,
and merchandise" withiil the seventeenth section of the act.^
Hibblewhite v. M'Morine, 6 M. & W. 222. See Myers v. Perigal, 2 De Gex,
214, per Parke, B.; 2 Kail. Ca. 67, M. & G. 599; Walker v. Bartlett, 18
S. C; Humble v. Mitchell, 11 A. & E. Com. B. 845; Hayter v. Tucker, 4 Kay
205; 2 Rail. Ca. 70, i\ C; Baxter &J. 243; Bennett v. Blain, 15 Com.
w. Brown, 7 M. & Gr. 216, per Tindal, B. N. R. 518, S. C; Freeman ».
C. J. ; Hilton v. Geraud, 1 De Gex & Gainsford, 34 L. J. C. P. 95 ; En-
Sm. 187 ; Watson v. Spratley, 10 Ex. twistle v. Davis, 36 L. J. Ch. 825 ;
R. 237, per Martin, B., 244, per Parke, Law Rep. 4 Eq. 272, S. C.
B.; Bulmer 1). Norris, 9 Com. B. N. » Ibid.; Baxter v. Brown, 7 M. &
S. 19. See Edwards v. Hall, 25 L. Gr. 198; Boyce u. Green, Batty, 608.
J. Ch. 82; 6 De Gex, M. & G. 74, S. See Morris v. Glynn, 27 Beav. 218 ;
C; overruling Ware v. Cumberledge, Black v. Black, 15 Ga. 445.
20 Beav. 503 ; and see, also, Powell * Watson v. Spratley, 10 Ex. R.
V. Jessopp, 18 Com. B. 336, and Tay- 222, per Parke & Alderson, Bs.
lor V. Linley, 2 De Gex, F. & J. 84. ^ Smith v. Burnhara, 3 Suran. 460.
1 Tippets V. Walker, 4 Mass. 595; See Linscott v. Mclntire, 15 Me. 201.
Smith V. Tarlton, 2 Barb. Ch. 336; « Humble v. Mitchell, 11 A. & E.
Chester v. Dickerson, 64 N. Y. 1 ; S. 205 ; 2 Rail. Ca. 70, S. C; Hibble-
C. 52 Barb. 349 ; Fraser v. Child, 4 white v. McMorine, 6 M. & W. 214,
E. D. Smith, 153. See Vaupell 0. per Parke, B.; Knight v. Barber, 16
Woodward, 2 Sandf. Ch. 143. M. & W. 66 ; Tempest v. Kilner, 3
2 Watson i;. Spratley, 10 Ex. R. Com. B. 249 ; Bowlby v. Ball, Ibid.
99
§ 865.] THE LAW OF EVIDENCE. [BOOK H.
§ 865. So far as concerns terms for years, the better opinion is,
284; Duncuft v. Albrecht, 12 Sim.
189 ; Watson v. Spratley, 10 Ex. K.
222.
Distinctive Legislation in Pennsylvania.
The following note of the law of
Pennsylvania on the Statute of Frauds
is taken from Keed's Leading Cases on
the Statute of Frauds, now in prep-
aration : —
" In Pennsylvania, owing to the dif-
ferences between the statute of that
state and 29 Car. II. c. 3, there has
arisen a peculiar condition of law,
which, as it necessitated a discussion of
the precise import of each section of the
Statute of Frauds (some sections be-
ing in force in Pennsylvania, and some
not), has a general importance for the
profession, even beyond the limits of
that state ; our space being brief, a mere
reference to the cases will be all that
can be given. Prior to 1772, the Stat-
ute of Frauds was not in force in Penn-
sylvania. See Anon. 1 Dall. 1, with
note. See as to the application to the
colonies of British statutes, 1 Shars.
Black. Com. 108 n. j Kent Com. i. p.
535, and n. (p. *473), 10th ed. Inl772
(see 1 Sm. L. 389) the first three sec-
tions of 29 Car. II. c. 3, were adopted.
See Murphy v. Hubert, 7 Pa. St. 423;
McDowell V. Oyer, 21 Pa. St. 421 ; Bow-
ser V. Cessna, 62 Pa. St. 149, to the
effect that the omission of the Fourth,
Seventh, Eighth, and Seventeenth sec-
tions (the only others, except the pro-
visions as to wills, which relate to the
necessity of written evidence), had
been made deliberately and skilfully.
See Rawle's Smith on Contract, p. 118
(p. *47 n.), and 1 Smith's Lead. Cases
(5th Am. ed.), 389, for an expression
of the opinion that the omission of so
much of the Fourth section as related
to guarantees was an advantage rather
than otherwise. See, however, Sid-
100
Distinctive Legislation in Pennsylvania.
(Continued. )
well V. Evans, 1 Pa. Rep. (P. & W.)
385, and more than one decision since
1855, taking the opposite tone. In
Pugh V. Good, 3 W. & S. 57, Judge
Gibson seemed to have thought that
the provisions of the Fourth section
relating to the sale of land should
have been decided to be in force. See
Jones V. Peterman, 3 8. & R. 543, and
Pugh V. Good, 3 W. & S. 58, as hold-
ing that English decisions made prior
to the Revolution, in regard to the iirst
three sections of 29 Car. II., were bind-
ing in Pennsylvania. See, also, Reed
V. Reed, 12 Penn. St. 120, and Far-
ley V. Stokes, 1 Pars. E. 422.
" In 1855 (P. L. 308), so much of
the Fourth section as relates to guaran-
tees and to promises by executors to
answer out of their own estates was
substantially reenacted.
" In 1856 (P. L. 533), the Seventh
and Eighth sections, relating to trusts,
were reenacted almost verbatim.
" The first consequence of the omis-
sion of the Fourth section, and the
adoption of the First, Second, and
Third of 29 Car. IL c. 3, was, that
though by the latter no estate could be
transferred by parol, parol contracts for
the sale of land were not necessarily
invalid ; but that an action of damages
for their breach would lie, provided
that the damages allowed were not
such as to give what was equivalent
to specific performance. Bell v. An-
drews, 4 Dall; 152; Ewing v. Tees, 1
Binn. 450 ; Whitehead v. Carr, 5
Watts, 368 ; George v. Bartoner, 7
Watts, 532 ; Pattison v. Horii, 1
Grant's Cases, 302; Bender v. Ben-
der, 37 Pa. St. 419 ; Moore v. Small,
19 Pa. St. 461; Kurtz v. Cummings,
24 Pa. St. 35. In Pugh v. Good,
Judge Gibson having said that he
CHAP. XI.]
STATUTE OF FRAUDS.
[§861S
that a writing without seal is sufficient for transfer.^ Under stat-
ihis 18 clearly the case with transfers of existing notneces-
Distinctive Legislation in Pennsylvania.
(Continued.)
thought that the Fourth section ought
to have been held to be in force in
Pennsylvania, added, that he doubted
whether the prohibition of a parol con-
tract for the sale of land, so far as such
a contract had been prohibited, could
well rest merely on the First section as
adopted. Though this doctrine allow-
ing an action of damages for the breach
of a parol contract within the statute
of frauds is considered to be peculiar
to Pennsylvania, see Welch v. Lawson,
32 Miss. 1 70, for a ruling closely anal-
ogous. See the cases cited in Welch
V. Lawson, and see Couch i;. Meeker,
2 Conn. 202, and Montague i;. Garnett,
3 Bush (Ky.), 397. (In these states the
Fourth section is in force.) See Pugh
0. Good, supra ; Browne on St. of Fr.
§ lis et seq., and Agnew on St. of Fr.
pp. 118, 156-8, 229, and Am. Law
Reg., June, 1877, for cases showing that
in equity compensation will be allowed
for acts done in part performance, &c.,
of a contract invalid under Statute of
Frauds. The Pennsylvania doctrine
has been repeatedly denied both ex-
pressly and by implication in these
states where the Fourth section is in
force. See, for example, Ballard v.
Bond, 32 Vt. 355. See, as to the nat-
ure of the action to be brought, the
proper mode of pleading, the degree
of evidence required, the proper time
for bringing this action, the effect of
a previous failure to have contract de-
creed to be specifically enforced, and
the operation of the Statute of Limita-
tions, Postlethwait v. Frease, 31 Pa.
St. 472; Gangwer v. Fry, 17 Pa. St.
Distinctive Legislation in Pennsylvania.
(Continued. )
495; Poorman v. Kilgore, 37 Pa. St.
311; Thurston v. Franklin College, 16
Pa. St. 154 ; Poorman v. Kilgore, su-
pra; Meason v. Kaine, 67 Pa. St. 131,
and Ewing v. Tees, 1 Binn. 450, re-
spectively. The most important con-
sideration arising under this doctrine
is that of the measure of damages. In
Irvine v. Bull, 4 Watts, 289, an at-
tempt in an action for breach of a
parol contract of sale of land, to ob-
tain a conditional verdict for a large
amount to be released upon the defend-
ant's conveying the land to the plain-
tiff, was overruled as being equivalent
to a decree for specific performance.
[These conditional verdicts were the
substitutes formerly used in Pennsyl-
vania in default of a court of chancery,
to answer the purpose of the proper
machinery of equity.]
" The purchase money fixed in a
parol contract for the breach of which
an action is brought is not the meas-
ure of damages, for that would be
equivalent to specific performance.
EUet V. Paxson, 2 W. & S. 433 ; 1 Sm.
Laws of Penn. 397, note; Meason v.
Kaine, 67 Pa. St. 131, and other cases
too numerous to give.
" The loss of the bargain, except in
two instances, cannot form an element
of damage. Dumars v. Miller, 34 Pa.
St. 323; Bender v. Bender, 37 Pa. St.
419; Ewing W.Thompson, 66 Pa. St.
383; HriTis v. Harris, 70 Pa. St. 174.
Semble, contra, Ellet v. Paxson, 2 W.
& S. 433, and Sedam v. ShaflTer, 5 W.
& S. 529. See Bowser v. Cessna, 62
Pa. St. 148. The exceptional cases
' Maule, J., Aveline v. Whisson, 4
M. & G. 80; Mayberry v. Johnson, 3
Green (N. J.), 116 ; 4 Greenl. Cruise,
84; Roberts on Frauds, 249 ; Browne
on Frauds, § 7.
101
§865.
THE LAW OF EVIDENCE.
[book II.
sarj' for leases.' And the better opinion is, that if a writing is
term for sealed it will operate as a lease, though not signed.^
years; but
writing is.
Distinctive Legislation in Pennsylvania.
(Continued.)
are those where the defendant's de-
fault is in not complying with his bid
made at a public sale. Bowser v. Cess-
na, 62 Pa. St. 149, with cases cited;
and where the defendant has been
guilty of actual fraud. Eohr v. Kindt,
3 W. & S. 563; Bitner v. Brough, 11
Penn. St. 139; Hoy v. Gronoble, 10
Casey, 11; McClowry v. Croghan, 31
Pa. St. 22; McNair v. Compton, 11 Ca-
sey, 28; Meason v. Kaine, 63 Pa. St.
339; Meason v. Kaine, 67 Pa. St. 131.
These exceptions depend not upon the
Statute of Frauds, but upon the gen-
eral law of damages. As to the bid
at a public sale, see Am. Law Keg.,
June, 1877. As to the case of fraud,
see the same place, and Bowser v.
Cessna, supra, and Field on Damages,
§479 e« seq., §484 et seg.
" The fraud must be actual fraud in
the original contract, and not a mere
failure to comply with the contract.
Harris v. Harris, 70 Pa. St. 174 ;
though see Rohr v. Kindt, Bitner v.
Brough, Hoy v. Gronoble, McClowry
V. Croghan, Bowser v. Cessna, all su-
pra, in which, as opposed to the case
of an innocent inability to comply
with his contract, the defendant's wil-
ful default is collocated with his actual
fraud, so as in either case to justify
the court in allowing damages for the
loss of the bargain. Where damages
are given for the loss of the bargain,
the measure is to be found in the differ-
J Farmer v. Rogers, 2 Wils. 26 ;
Beck V. Phillips, 5 Burr. 2827 ; Cour-
tail V. Thomas, 9 B. & C. 288; HoUi-
day V. Marshall, 7 Johns. R. 211; Al-
len V. Jaquish, 21 Wend. 628.
» Aveline v. Whisson, 4 Man. & Gr.
102
Distinctive Legislation in Pennsylvania.
(Continued.)
enoe between the value of the land at
the time of the breach of the contract
and the price fixed in the contract.
See Meason v. Kaine, 67 Pa. St. 131,
and the cases cited just above.
" A controversy for a long time oc-
cupied the bar of Pennsylvania upon
the question whether, in an action for
the breach of a parol contract to con-
vey land to the plaintiff, in considera-
tion of services by the latter, the meas-
ure of the damages was the actual
value of the services, or the value
of the land. In Jack v. McKee, 9 Pa.
St. 235 (and in a series of cases to be
found cited in Malaun, Adm. v. Am-
mon, 1 Grant, 131, and in Hertzog r.
Hertzog, 34 Pa. St. 419), it was held,
Rogers, J., Gibson, J., and Black,
C. J., arguing therefor strenuously,
that the value of the land was the
standard. In Hertzog r. Hertzog, su-
pra, and in the authorities therein
cited, and in those cited in Judge
Woodward's dissenting opinion in Ma-
laun V. Ammon, it was held by a unani-
mous court, overruling Jack v. McKee,
that the former rule was an evasion of
the statute, that most unjust results
followed it, and that the earlier doc-
trine now reiterated was law, viz., that
the measure of the damages was the
value of the services. Hertzog v.
Hertzog was followed in Graham v.
Graham, 34 Pa. St. 482 ; McNau: v.
Compton, 85 Pa. St. 28; Ewing v.
801 ; Cherry v. Hemming, 4 W., H. &
G. 631 ; Cooch V. Goodman, 2 A. &
E. (N. S.) 580. See Wood v. Good-
ridge, 6 Cush. 117; Gardners. Gard-
ner, 5 Cush. 488. As to general rules
in respect to seals, see supra, §§ 692-3.
CHAP. XI.] STATUTE OF FRAUDS. [§ 866.
§ 866. Much discussion has arisen as to what products of the
Distinctive Legislation in Pennsylvania.
(Continued.)
Thompson, 66 Pa. St. 383 ; Harris v.
Harris, 70 Pa. St. 174; Poorman u.
Kilgore, 37Pa. St. 311. See Browne
on St. of Fr. § 271. See, as appar-
ently favoring Jack v. McKee, to a
greater or less degree, Basford v. Pear-
son, 9 Allen, 390 ; Ham v. Goodrich,
37 N. H. 185 ; Thomas u. Dickinson,
14 Barb. 90; Nones v. Homer, 2 Hilt.
116 ; King jj. Brown, 2 Hill, 485 ;
Clark v. Terry, 25 Conn. R. 395. See,
however, Browne on St. of Fr. §125 ;
Lisk V. Sherman, 25 Barb. 433 ; Erben
v. Lorillard, 19 N. Y. 299 ; Emery v.
Smith, 46 N. H. 151 ; Fuller v. Reed,
38 Cal. 99. See, as supporting Hert-
zog u. Hertzog, on the general prin-
ciples of the law of damages, Burr v.
Todd, 41 Pa. St. 212.
" According to Browne on the Stat-
ute of Frauds, § 46, Pennsylvania,
with the exception, perhaps, of Con-
necticut, stands alone in denying the
English rule which requires the sur-
render, assignment, &c. of leases, even
under three years, to be in writing.
See, as to the English rule, the cases
cited in McKinney v. Reader, infra,
and Browne on St. of Fr. § 46. As to
the Pennsylvania rule, see McKinney
i;. Reader, 7 Watts, 123; Greider's
Appeal, 5 Pa. St. 422 ; Kline's Appeal,
39 Pa. St. 468; Adams v. McKe_sson,
53 Pa. St. 83 ; Shoofstall v. Adams, 2
Grant, 209 ; Tate v. Reynolds, 8 W.
& S. 91. See 2 Sm. Lead. Cases
(Am. ed.) p. *184. See, also, Briles
V. Pace, 13 Ired. 279 ; Holliday v. Mar-
shal, 7 Johns. 211.
"Under the peculiar provisions of
the Pennsylvania Act of 1772, it was
held that equitable estates, though
.they could be created by parol, could
not be so transferred. McKinney v.
Reader, supra. As to the validity of
Distinctive Legislation in Pennsylvania.
(Continued. )
a parol waiver of right arising under
the Statute of Frauds, so as to be a
good defence in equity, &c., &c., see
Am. Law Reg., June, 1877.
" See Parrish v. Koons, 1 Pars. Eq.
79, with a full citation of cases, both
English and American, for the ruling,
that owing to the wording of the Act
of 1772, as distinguished from 29 Car.
H. c. 3, an agent in Pennsylvania,
who contracts for the sale of land, must
be authorized by writing, though in
England he need not be.
"In Wilson w. Clarke, 1 W. & S.
555, Judge Gibson said, that the ordi-
nary equitable doctrine of mutuality of
remedy ought, in Pennsylvania, to be
applied to cases arising under the Stat-
ute of Frauds, — the only reason for
its not having been so applied in Eng-
land being the language of the Fourth
section of 29 Car. H. c. 3, not in force
in Pennsylvania, referring to the party
to be charged. Parrish v. Koons, su-
pra, adopted the dictum of Wilson v.
Clarke, and decided a case thereon;
and in Meason v. Kaine, 67 Pa. St.
136, Judge Gibson's opinion is referred
to as if it were received law. See, how-
ever, Tripp V. Bishop, 56 Pa. St. 426,
in which Judge Strong said : ' If a
contract is not within the Statute of
Frauds, or if the contracting parties
have done all that the statute requires,
there is no reason why a purchaser '
(of land) ' should not be held to pay
what he promised.' That under the
Pennsylvania statute the vendor only
need sign, Lowry v. Mehaffy, infra,
being cited. That where the vendor
has signed, the contract becomes mut-
ually obligatory, and nothing remains
but to pay the purchase money, and
the promise to do that need not be in
writing. See, also, Lowry v. Mehaffy,
103
§ 866.]
THE LAW OF EVIDENCE.
[book II.
soil are included, when on the soil, under the term " inter-
est in lands," and what are not. It is conceded on
"Interest ■ i -, j- • , .
inlands" all sides that the term does not include iruits, which
include from the nature of things are perishable, and which,
ungathered if ^o* removed immediately, are valueless. Hence
fruit, or
crops an-
nually re-
moved;
but other-
wise as to
such prod-
uce of the
soil as is
capable of
permanent
attach-
ment to it.
it is that a contract for the sale of such fruit is not
a contract for any interest in lands, though the fruits
are to be removed from the soil by the purchaser.^
The same distinction is applicable to all ephemeral and
transitory produce of the earth, reared annually by
labor and expense, and in actual mature existence at
the time of the contract, — as, for instance, a growing
crop of corn,2 or hops,^ or potatoes,* or peaches,^ or tur-
nips,®— though the purchaser is to harvest or dig them.'' On the
other hand, when the produce to be sold is not, from its perishable
condition while on the soil, in a state which requires its imme-
diate removal, if it is to be of value ; then, under the statute, it is
Distinctive Legislation in Pennsylvania.
(Continued.)
10 Watts, 387 ; Johnston v. Cowan,
59 Pa. St. 275; Colt v. Selden, 5
Watts, .528; M'Farson's Appeal, H
Pa. St. 510; Van Home v. Frick, 6
S. & E. 92; Browne on St. of Fr. §
366 ; Am. Law Reg., June, 1877.
" In Pugh V. Good, 3 W. & S. 57, it
was held that the doctrine of part per-
formance extended to Pennsylvania,
notwithstanding the fact, that owing to
the omission of the Fourth section of
29 Car. II. c. 8, compensation could be
obtained in an action for the breach
of the parol contract. See, on this
point, Allen's Estate, 1 W. & S. 386;
Browne on St. of Fr. § 467; Am. Law
Reg., June, 1877."
1 Thayer v. Rock, 13 Wend. 58.
See Browne on Frauds, § 241 ; Parker
i^. Staniland, 11 East, 362.
" Jones V. Flint, 10 A. 8e E. 753 ;
2 P. & D. 594, S. C.
s Per Parke, B., in Rod well v. Phil-
lips, 9 M. & W. 503, questioning Wad-
104
dington v. Bristow, 2 B. & P. 452. See,
also, Graves v. Weld, 5 B. & Ad. 119,
'120.
* Sainsbnry v. Matthews, 4 M. & W.
343; 7 Dowl. 23, S. C. ; Evans v.
Roberts, 5 B. & C. 829 ; 8 D. & R.
611, S. C. ; Warwick v. Bruce, 2 M.
& Sel. 205.
s Purner v. Piercy, 40 Md. 212.
* Dunne v. Ferguson, Hayes, 540 ;
Emmerson v. Heelis, 2 Taunt. 88,
contra, must be considered as over-
ruled by Evans v. Roberts, 5 B. & C.
833, 834, and by Jones v. Flint, 10 A.
& E. 759.
' Mr. Taylor questions whether the
same rule would apply to contracts
respecting the sale of teasles, liquor-
ice, madder, clover, or other crops of
a like nature, which do not ordinarily
repay the labor by which they are pro-
duced within the year in which that
labor is bestowed, and consequently,
as it seems, do not fall within the law
of emblements. Taylor's Ev. § 952,
citing Graves v. Weld, 5 B. & Ad.
105, 118-120; 1 Sug. V. & P. 156.
CHAP. XI.]
STATUTE OF FRAUDS.
[§ 867.
an interest in lands.^ Hence the statute has been held to cover
agreements respecting the sale of growing trees,^ or grass,^ or
standing though growing underwood,* or growing poles.^
§ 867. It has been sometimes said that where there is a license
to the vendee to enter and carry off the crop, then the crop is
personalty, but when there is no such license, then the crop is
realty. But this distinction cannot be sustained. If a vendee
should be licensed to enter a grove a year or two hence, and cut
* down and carry ofE a load of saplings, the contract would con-
cern realty, because, between the contract and the performance,
the soil would pass into the trees. On the other hand, if the
vendor should say, " I will now cut down and stack these trees,
and sell them to you at so much a cord," then the contract would
be for personalty, though there was no license to the vendee.
The question is, is the strength of the soil to go into the crop
before it is cut, or is it not? If it does, then what is sold is " an
interest in land." ® If, however, what is sold is the crop, ripe.
^ See Bostwick v. Leach, 3 Day,
476; Brown v. Sanborn, 21 Minn. 402.
It is true, that the distinction in the
text is apparently overridden in War-
wick V. Bruce, supra ; but in that case
it did not appear but that the potatoes
could be at once harvested. See Bry-
ant V. Crosby, 40 Me. 9; Sherry v.
Picken, 10 Ind. 375 ; Bull v. Griswold,
19 111. 631 ; Marshall v. Ferguson, 23
Cal. 65 I Claflin v. Carpenter, 4 Mete.
(Mass.) 580. But, as sustaining the
text, may be noticed, Green v. Arm-
strong, 1 Denio, 550; Bank v. Crary,
1 Barb. 542 ; Warren v. Leland, 2
Barb. 613 ; Bishop v. Bishop, 1 Ker-
nan, 123 ; Bennett v. Scutt, 18 Barb.
347 ; Westhook v. Eager, 1 Harr. (N.
J.) 81. See Buck v. Pickwell, 1 Wil-
liams (Vt.), 157.
2 Kodwell V. Phillips, 9 M. & W.
501, resolving a doubt suggested by
Littledale, J., in Graves v. Weld, o B.
& Ad. 116; Smith v. K. R. 4 Keyes,
180 ; Owens v. Lewis, 46 Ind. 489.
' Crosby v. Wadsworth, 6 East,
602 ; Carrington v. Roots, 2 M. & W.
248; Gilmore v. Wilbur,12 Pick. 120;
Powell V. Rich, 41 111. 466.
^ Scorell V. Boxall, 1 Y. & J. 396.
e Teal v. Auty, 2 B. & B. 99 ; 4
Moore, 542, S. C. ; Bishop v. Bishop,
1 Kernan, 123. See, however, Com-
ments in Browne on Frauds, § 25.
When a vendor has contracted to
sell timber at so much per foot, this
was held not to pass an interest in
lands. The court regarded the con-
tract in the same light as if it had re-
lated to the sale of timber already
felled. Smith v. Surman, 9 C. & P.
501; S. C. M. & R. 455, as explained
by Ld. Abinger, in Rodwell v. Phil-
lips, 9 M. & W. 505.
6 That the question does not hang
upon the purchaser's right to ente^
and gather, appears by Lord Ellen-
borough's remarks in Parker v. Stani-
land, 11 East, 362. See Jones v. Flint,
10 Ad. & El. 753 ; Nettleton v. Sikes,
8 Mete. (Mass.) 34 ; Whitmarsh v.
Walker, 1 Mete. (Mass.) 313; Claflin
V. Carpenter, 4 Mete. (Mass.) 583.
106
§ 868.]
THE LAW OF EVIDENCE.
[book II.
and to be cut before it draws materially from the soil, then the
crop is not " an interest in land." ^ It may be added, a fortiori,
that where land is to be contracted to be sold or let, and the
vendee or tenant agrees to buy the growing crops, the crops
are regarded as still drawing from the soil, and as therefore
under the fourth section of the statute, which requires contracts
to be in writing.^ But when the essence of the thing sold is
labor, not land, the statute does not apply .^
§ 868. "When the statute requires simplj' a memorandum in
writing as a constituent of a contract, a writing by an
agent is suflBcient, without a written authority to the
agent. Authority to execute a deed, by the first sec-
tion of the statute, must be in writing, because this
is specifically required ; but it is otherwise as to an
agreement to convey, the authority to execute which, on the
part of the agent, may be by parol.* For the sale of goods,
under the statute of frauds, a parol authority is adequate.^ An
auctioneer's memorandum or entry, signed by him, whether as
to real or personal estate, binds both parties.^
Agent's
authority
need not be
in writing,
unless re-
quired by
statute.
^ Anon. 1 Ld. Raym. 182 ; May-
field V. Wadsley, 3 B. & Cr. 357;
Smith V. Surman, 9 B. & C. 561 ; Rod-
well V. Phillips, 9 M. & W. 505; Mar-
shall 0. Green, L. R. 1 C. P. D. 35 ;
Safford v. Annis, 7 Me. 168; Cutler v.
Pope, 13 Me. 377; Whitmarsh v. Walk-
er, 1 Mete. (Mass.) 313 ; Claflin v.
Carpenter, 4 Meto. (Mass.) 580; Kil-
more v. Howlett, 48 N. Y. 569 ; Smith
u. Bryan, 5 Md. 141 ; Cain v. McGuire,
13 B. Monr. 340.
2 Falmouth v. Thomas, 1 C, M. &
R. 19; Mayfield v. Wadsley, 3 B. &
C. 361.
, » Pitkin V. Noyes, 48 N. H. 294.
• Emmerson v. Heelis, 2 Taunt. 38
Clinan v. Cooke, 1 Sch. & Lef. 22
Kenneys v. Proctor, 1 Jac. & W. 350
Higgins V. Senior, 8 Mees. & W. 844
Mortimer v. Cornwell, 1 Hoff. Ch
351; Long v. Hartwell, 84 N. J. 116,
Eiley w. Minor, 29 Mo. 439 ; Broun v.
106
Eaton, 21 Minn. 409 ; Rottman v.
Wasson, 5 Kans. 552.
^ See cases as to brokers, collected
in Wharton on Agency, § 720 et seq.
° Hinde v. Whitehouse, 7 East,
258; Emmerson v. Heelis, 2 Taunt.
38 ; White v. Proctor, 4 Taunt. 209 ;
Kenworthy v. Schofield, 2 B. & C.
945 ; Farebrother v. Simmons, 1 B. &
Aid. 333 ; Cleaves v. Foss, 4 Greenl.
1 ; Pike v. Balch, 38 Me. 302 ; Smith
V. Arnold, 5 Mason, 414 ; Bent v.
Cobb, 9 Gray, 397 ; Morton v. Dean,
13 Mete. 388 ; McComb v. Wright, 4
Johns. Ch. 659 ; Johnson v. Buck, 6
Vroom, 838 ; Pugh v. Chesseldine, 11
Ohio, 109 ; Hart v. Woods, 7 Blackf.
568; Burke v. Haley, 7 111. 614;
Cherry v. Long, Phill. (N. C.) 466 ;
Gordon v. Saunders, 2 McCord Ch.
164 ; Episc. Church v. Leroy, Riley
(S. C), Ch. 156 ; White v. Crew, 16 Ga.
416; Adams w. McMillan, 7 Port. 73.
CHAP. XI.]
STATUTE OF FRAUDS.
[§ 869.
in. SALES OF GOODS.
By the sCTenteenth section no contract for the sale
of goods, wares, or merchandise, for the price of ten Saiesof
pounds or upwards, shall be good, unless the buyer fe'evl""''
shall accept part of the goods, and actually receive the ^^l^^ ^^
same, or give something in earnest to bind the bargain, ™^^\
or in part payment; or unless " some note or memoran- partpay-
dum in writing of the said bargain be made and signed earnest, or
by the parties to be charged by such contract, or their andloMid-
agents thereunto lawfully authorized." ^ One party ^^^°^ .
cannot sign as the other's agent ; ^ but there may be a P«ar-
common agent for both parties.^ The language in the fourth
section is in this respect substantially the same as that of the
seventeenth ; * and in order to satisfy either, it has been held
that the consideration for the agreement in the one case, and for
the bargain ^ in the other, must appear expressly or impliedly in
the writing signed by the party to be charged. This rule ap-
plies, according to the English construction,^ not only to bargains
for the sale of goods, but to agreements upon consideration of
marriage,^ to contracts for the sale of lands, and to agreements
not to be performed within a year,^ and also to special promises
made by executors or administrators to answer damages out of
their own estate. In the United States, the same rule has been
^ By Lord Tenterden's Act, which
has been transferred to the codes of
several of the United States, " all
contracts for the sale of goods, of the
value of ten pounds and upwards,
notwithstanding the goods may be in-
tended to be delivered at some future
time, or may not at the time of such
contract be actually made, procured,
or provided, or fit or ready for deliv-
ery, or some act may be requisite for
the making or completing thereof, or
rendering the same fit for delivery."
= Sharman v. Brandt, L. R. 6 Q. B.
720.
' See Wharton on Agency, §§ 644,
718, and cases cited supra, § 868.
* Taylor's Evidence, § 933, citing
Kenworthy v. Schofield, 2 B. & C.
947, per Bayley, J.
^ In Egerton v. Mathews, 6 East,
307, the bargain imported considera-
tion on the face of it. See per Parke,
J., in Jenkins v. Reynolds, 3 B. & B.
21; and see Mahon v. U. S. 16 Wall.
143 ; Norris v. Blair, 39 Ind. 90 ;
Calkins v. Palk, 1 Abb. (N. Y.) App.
291.
« Taylor's Evidence, § 933. See
Browne on Statute of Frauds, § 388.
' See Saunders v. Cramer, 3 Dru.
& War. 87.
8 Lees V. Whitcomb, 5 Bing. 34;
2 M. & P. 86, S. C; Sykes v. Dixon,
9 A. & E. 693; 1 P. & D. 463, S. C. ;
Sweet V. Lee, 3 M. 8e Gr. 466.
107
869.]
THE LAW OF EVIDENCE.
[book II.
adopted in New Hampshire,i New York,^ New Jersey ,3 Mary-
land,* South Carolina,^ Georgia,^ Michigan,'' Indiana,^ and Wis-
consin.9 It has been rejected in MainCj^" Vermont," Massachu-
setts,i2 Pennsylvania,^^ Ohio," North Carolina,!^ and Missouri.i^
A covenant under seal, however, need not, it is said, express the
consideration.^^ It is not necessary, in any case, that the con-
sideration should be stated on the face of the written memo-
randum in express terms. It is sufficient if it can be collected,
not indeed by mere conjecture, however plausible,!^ but by fair
and reasonable, if not necessary, intendment from the whole
tenor of the writing. ^^ Even, however, under the strict rule
1 Underwood v. Campbell, 14 N. H.
393.
2 Kerr v. Shaw, 13 Johns. 236.
So by Revised Statutes, Sackett v.
Palmer, 25 Barb. 179 ; Marquand v.
Hipper, 12 Wend. 520 ; Smith v.
Ives, 15 Wend. 182 ; Bennett w. Pratt,
4 Denio, 275.
So of a guarantee indorsed on a
promissory note. Hunt v. Brown, 5
Hill, 145 ; Hall v. Farmer, 5 Denio,
484 ; Brewster v. Silence, 8 N. Y.
207 ; Draper v. Snow, 20 N. Y. 331.
But since the Act of 1863 a guar-
antee need no longer express consider-
ation. Speyers «. Lambert, 1 Sweeny
(N. Y.), 335.
» Buckley v. Beardslee, 2 South.
572.
* Sloan V. Wilson, 4 Har. Se J. 322;
Hutton V. Padgett, 26 Md. 228.
5 Stephens v. Winn, 2 Nott &McC.
372; though see Lecat u, Tavel, 3
McC. 158.
° Hargroves v. Cooke, 15 Ga. 821.
' Jones u. Palmer, 1 Doug. 379.
" Gregory v. Logan, 7 Blackf. 112.
» Taylor v. Pratt, 3 Wise. 674.
1" Levy V. Merrill, 4 Greenl. 189 ;
Gilligan v. Boardman, 29 Me. 81.
" Patchin v. Swift, 21 Vt. 297.
" Packard v. Richardson, 1 7 Mass.
122.
" Paul V. Stackhouse, 88 Penn. St.
108
302; Bowser v. Cravener, 56 Penn.
St. 132.
" Reed v. Evans, 17 Ohio, 128.
1^ Ashford v. Robinson, 8 Ired. 114.
^^ Halsa V. Halsa, 8 Mo. 305. See
Browne on Frauds, § 389.
1' Douglass V. Howland, 24 Wend.
35 ; Rosenbaum v. Gunter, 2 E. D.
Smith, 415.
1' Hawes v. Armstrong, 1 Bing. (N.
C.) 765, 766, per Tindal, C. J.; James
V. Williams, 5 B. 8e Ad. 1109, per Pat-
teson, J.; Raikes v. Todd, 8 A. & E.
855, 856, per Ld. Denman.
^' Joint V. Mortyn, 2 Fox & Sm. 4 ;
Saunders u. Cramer, 3 Dru. & War.
87 ; Price v. Richardson, 15 M. & W.
540 ; Caballero v. Slater, 14 Com. B.
300. See Neelson v. Sanborne, 2 N.
H. 413 ; Simons v. Steele, 36 N. H.
73 ; Adams v. Bean, 12 Mass. 139 ;
Sears v. Brink, 8 Johns. 210 ; Leonard
V. Vredenburgh, 8 Johns. 29 ; Rogers
V. Kneeland, 10 Wend. 252 ; Mar-
quand V. Hipper, 12 Wend. 520 ;
Parker v. Willson, 15 Wend. 346;
Gates V. McKee, 3 Kern. 232; Churcli
V. Brown, 21 N. Y. 315 ; Weed v.
Clark, 4 Sandf. 31 ; Dugan v. Git-
tings, 8 Gill, 138 ; Williams v. Ketch-
am, 19 Wise. 231 ; Lecat v. Tavel, 3
McCord, 158 ; Otis v. Hazeltine, 27
Cal. 80. See Taylor's fiv. § 934.
CHAP. XI.] STATUTE OF FRAUDS. [§ 870.
adopted by the English courts, any act of the plaintifE from
which the defendant or a stranger derives a benefit or advantage,
or any labor, detriment, or disadvantage sustained by the plain-
tiff, however small may be the benefit on the one hand, or the
inconvenience on the other, is a sufficient consideration, if such
act be performed, or such inconvenience be suffered, by the
plaintiff, with the consent, express or implied, of the defendant,
or in the language of pleading, at his special instance and re-
quest.^
§ 870. The contract, under the statute, must contain the
names of the parties, and the general terms of the bar- q^^^^^ ^^_
gain,^ and the promise,^ either directly or by refer- Serial arer-
o ' r 7 J J mentsmust
ence;* but any memorandum will suffice, which con- be m writ-
tains all that leads to future certainty.^ It is sufficient,
for instance, for the vendor to undertake in writing to purchase
a particular article at a named pric?, though it be agreed at the
same time that the article in question shall have some alteration
or addition made to it before delivery.^ It has also been held,
that if a party agrees to pay rent for a certain farm at a speci-
fied sum per acre, the number of acres need not be specified ; ^
nor need there be a specification of the quantity of goods, in a
contract, in consideration of forbearance, to pay for all goods
supplied to a third party during the antecedent month.^ Nor
1 Taylor's Evidence, § 935, and Kinlock v. Savage, 1 Speers, Eq.
cases there cited ; 1 Selw. N. P. 43 470 ; Farwell v. Lowther, 18 111.
et seq.; 2 Wms. Saund. 137 ff, 137 k, 252.
and cases there collected. * Riley v. Farnsworth, 116 Mass.
i" Archer v. Baynes, 5 Ex. R. 625 ; 223.
Wood 17. Midgley, 5 De Gex, M. & G. ' Taylor's Evidence, § 936; Slater
41 ; Holmes v. Mitchell, 7 Com. B. v. Smith, 117 Mass. 96.
(N. S.) 361; Laythoarp v. Bryant, 2 " Sari v. Bourdillon, 1 Com. B. N.
Bing.N. C. 742; Remick ti. Sandford, S. 188.
118 Mass. 102; aff. S. C. 120 Mass. ' Shannon v. Bradstreet, 1 Sch. &
315. Lef. 73, per Ld. Redesdale.
> Carroll v. Cowell, 1 Jehb & Sy. ' Bateman v. Phillips, 15 East, 272;
43 ; Morgan v. Sykes, cited in argu- Shortrede v. Cheek, 1 A. &E. 57, 58,
ment in Coats v. Chaplin, 3 Q. B. 60; Bleakley i;. Smith, 11 Sim. 150.
486. See Salmon Falls Co. v. God- See, to same effect, Shelton v. Braith-
dard, 14 How. 446; Smith v. Arnold, waite, 7 M. & W. 437, 438; Dobell v.
5 Mason, 416; Ide v. Stanton, 15 Vt. Hutchinson, 3 A. &E. 371; Powell v.
691 ; Ives v. Hazard, 4 R. I. 14; Mc- Dillon, 2 Ball & B. 420 ; Spickernell
Farson's Appeal, 11 Penn. St. 503 ; v. Hotham, 1 Kay, 669 ; Rabaud v.
Soles V. Hickman, 20 Penn. St. 180 ; D'Wolf, 1 Peters, 499.
109
§ 872.]
THE LAW OF EVIDENCE.
[book n.
is it necessary that the writing should specify, when this is not
practicable, the particular mode,i or time of payment, or even
the specific price in figures.^ Hence a written order for goods
" on moderate terms " is sufficient,^ though, if a definite price
be agreed upon, it should be stated in the contract.*
§ 871. As to parties, greater particularity is requisite; and
either expressly or inferentially their names must be collected
from the memorandum.^ The statute was held to be satisfied in
this respect where the defendant, having purchased various arti-
cles in- the plaintiff's shop, signed his name and address in the
" Order-book," at the head of an entry which specified the articles
and the prices ; as the plaintiff's name was printed on the fly-leaf
of the book, and the defendant might have seen it had he thought
fit to look for it.® But, under the statute, no substantial part of
the contract can be by parol.''
§ 872. It is enough, in order to meet the requirements of the
But may statute, if the substance of the contract is to be inferred
be inferred from writing, either by the parties or by their agent,
erai docu- though these writings are made up of disjointed mem-
oranda, or of a protracted correspondence.^ For this
ments.
1 Sari V. Bourdillon, 1 Com. B. (N.
S.) 188.
2 Valpy V. Gibson, 4 Com. B. 864,
per Wilde, C. J.
' Ashcroft V. Morrin, 4 M. & Gr.
450.
* Elmore v. Kingscote, 5 B. & C.
583; 8 D. & R. 343, S. C. ; Goodman
V. Griffiths, 1 H. & N. 574.
8 Champion v. Plummer, 1 Bos. &
P. (N. R.) 252; Vandenbergh v.
Spooner, Law Rep. 1 Ex. 316 ; and
4 H. & C. 519, 5. C. ; Williams u.
Byrnes, 2 New R. 47, per Pr. C; 1
Moo. P. C. (N. S.) 154, S. C;
Warner v. Willington, 3 Drew. 523 ;
Wheeler i>. Collier, M. & M. 125, per
Ld. Tenterden ; Skelton v. Cole, 4 De
Gex & J. 587; Williams v. Lake, 2 E.
& E. 349 ; Newell v. Radford, L. R.
3 C. P. 52 ; Sherborne v. Shaw, 1 N.
H. 159; Nichols v. Johnson, 10 Conn.
198 ; Osborne v. Phelps, 19 Conn.
110
73 ; Bailey v. Ogden, 3 Johns. K.
399.
8 Sari V. Bourdillon, 1 C. B. N. S.
188.
' Wheelan v. Sullivan, 102 Mass.
204; Thayer v. Rock, 13 Wend. 53;
Wright V. Weeks, 25 N. Y. 153.
8 Supra, § 617 ; Allen v. Bennet, 3
Taunt. 169 ; Jackson v. Lowe, 1 Bing.
9; Phillimore v. Barry, 1 Camp. 513,
per Ld. EUenborough; Warner w. Wil-
lington, 3 Drew. 523; Skelton v. Cole,
4 De Gex & J. 587 ; Marshall v. R. K.
16 How. U. S. 314; Dodge v. Van
Lear, 5 Cranch C. C. 278; Pettibone
V. Derringer, 4 Wash. C. C. 215 ;
North Berwick Co. v. Ins. Co. 52 Me.
336; Abbott v. Shepard, 48 N. H.
14; Connecticut v. Bradish, 14 Mass.
296; Beers i'. Jackman, 103 Mass. 192;
Short Mountain Co. v. Hardy, 114
Mass. 197; Cossitt v. Hobbs, 56 111.
231 ; Union Canal v. Loyd, 4 Watts
CHAP. XI.]
STATUTE OF FRAUDS.
[§ 872.
purpose it will be enough to produce a letter or memorandum
signed by the party or his agent, though it does not contain in
itself any one of the terms of the agreement, if it distinctly refers
to and recognizes any writing which does contain them.^ A
letter, however, to be so received, must ratify the written but
unsigned contract relied on.^ It is sufficient, however, if the
letter enumerates all the essential terms of the bargain, although
it include excuses for the non-acceptance of the goods, which
form the subject matter of the contract.^ Telegrams* may form
part of the material from which a contract may be inferred ; if
so, the original signature of the party or his agent must be
produced.^ Nor is it necessary, as will also be hereafter shown
more fully, that the contract should be technically inter partes.
Liability under the statute may be imposed by a letter ad-
dressed to a third party,^ or by an answer to a bill in chancery,
or by an affidavit in any legal proceeding ; '^ or by an auctioneer's
& S. 394; Douglass v. Mitchell, 35
Penn. St. 440 ; Downer v. Morrison, 2
Grat. 250. See Passaic Co. v. Hoff-
man, 3 Daly, 495.
1 Dobell u. Hutchinson, 3 A. &
E. 355, 371 ; 5 N. & M. 251, 260,
S. C; Llewellyn v. Ld. Jersey, 11
M. & W. 189 ; Gibson v. Holland,
1 H. & R. 1 ; Law Rep. C. P. 1 ;
Macrory v. Scott, 5 Ex. R. 907 ;
Kenworthy v. Schofield, 2 B. & C.
945 ; Ridgway v. Wharton, 3 De Gex,
M. & G. 677; 6 H. of L. Gas. 238,
S. C; 1 Sug. V. & P. 171 ; Bauman
V. James, Law Rep. 3 Ch. Ap. 508;
Crane v. Powell, Law Rep. 4 C. P.
123, S. C; Reuss v. Pickley, L. K.
1 Exc. 342 ; Nesham v. Selby, L.
R. 13 Eq. 19; O'Donnell v. Leeman,
43 Me. 158; Morton v. Dean, 13 Mete.
385 ; Talman v. Franklin, 14 N. Y.
584. See Parkman v. Rogers, 120
Mass. 264.
" Taylor's Ev. § 937, citing Archer
V. Baynes, 5 Ex. R. 625; Richards v.
Porter, 6 B. & C. 437; Cooper v.
Smith, 15 East, 103. See Goodman
V. Griffiths, 1 H. & N.574; Jackson v.
Oglander, 2 Hem. & M. 465.
8 Taylor's Ev. § 937 ; Bailey v.
Sweeting, 9 Com. B. N. S. 843; Wil-
kinson V. Evans, Law Rep. 1 C. P.
407; and 1 H. & R. 552, S. C. ; Bux-
ton V. Rust, Law Rep. 7 Ex. 1.
4 Supra, § 617 ; infra, §1128.
5 Copeland u. Arrowsmith, 18 L.
T. (N. S.) 755 ; Godwin v. Francis, L.
R. 5 C. P. 293; Dunning v. Robert,
35 Barb. 463 ; Unthank »;. Ins. Co. 4
BLss. 357; Crane v. Malony, 39 Iowa,
39; Wells v. Milwaukee R. R. 30
Wise. 605.
" Moore V. Hart, 1 Verm. 110 ;
Longfellow v. Williams, Pea. Add.
Cas. 225, per Lawrence, J. ; Rose v.
Cunynghame, 11 Ves. 550, per Ld.
Hardwicke ; 3 Atk. 503 ; 1 Smith L.
C. 272; Gibson v. Holland, 1 H. &
R. 1, S. C; Law Rep. 1 C. P. 1 ;
Wilkins V. Burton, 5 Vt. 76 ; Betts v.
Loan Co. 21 Wise. 80 ; Robertson v.
Ephraim, 18 Tex. 118. See Clark !'.
Tucker, 2 Sandf. 157; Kinloch v. Sav-
age, 1 Speers, 143.
' See fully infra, § 912; and see
111
§ 873.] THE LAW OF EVIDENCE. [BOOK II.
memorandum ; ^ or by a broker's entries ; ^ or by any other
written engagement, though signed solely by the party charged
or his agent.^ But a written memorandum, made after the
action is brought, will not satisfy the statute.*
§ 873. As the statute does not require that the writing should
Place of ^^ subscribed by the party to be charged, but merely
signature that it should be signed, it makes no difference, in this
immate- i i t •
rial, and respect, whether the party charged mserts his name
suffice if at the beginning, or in the body, or at the foot or end
1 enti e . ^^ ^ document.^ But as a question of fact, it will be for
the jury to determine whether the party, not having signed it
regularly at the foot, meant to be bound by it as it stood, or
whether it was left so unsigned because he refused to complete it.^
On the one hand, it has been held to be sufficient, where a party
signed as witness to a deed reciting the agreement to be proved,
the knowledge of the recital being brought home to the party .^
On the other hand, where an agreement, drawn up by the sec-
retary of one of the contracting parties, contained the names of
both parties in the body of the instrument, but concluded, "As
witness our hands," and no signatures were subscribed, the court
held that the statute was not satisfied, as it was clearly in-
tended that the agreement should not be perfect till the names
were added at the foot.^ In New York, under the Revised Stat-
Doe V. Steel, 3 Camp. 115; Barkworth 174; Knight v. Crockford, 1 Esp. 190,
V. Young, 26 L. J. Ch. 153, 168, 193, per Eyre, C. J.; Ogilvie v. Fol-
per Kindersley, V. C. ; Knowlton v. jambe, 8 Mer. 53 ; Saunderson v.
Mosely, 105 Mass. 136 ; Forrest v. Jackson, 2 B. & P. 238, per Ld. El-
Forrest, 6 Duer, 102; Cook v. Barr, don; Hammersley k. Baron de Biel, 12
44 N. Y. 158 ; Bowen v. De Lattre, 6 CI. & Fin. 68, per Ld. Cottenham;
Whart. R. 430; Fulton v. Gracey, 15 Holmes v. Mackrell, 8 Com. B. N. S.
Grat. 314. 789; Bleakley v. Smith, 11 Sim. 150;
1 Wharton on Agency, § 655. Su- Ulen u. Kittredge, 7 Mass. 235; Pen-
pra, § 868. niman v. Hartshorn, 13 Mass. 87;
" Wharton on Agency, § 718. Parks v. Brinkenhoff, 2 Hill (N. Y.),
' See cases cited in succeeding sec- 663; Hill «. Johnston, 3 Ired.Eq. 432;
tions. Vassault v. Edwards, 48 Cal. Evans t». Ashley, 8 Mo. 177. See, as
458; Rutenbergu. Main, 47 Cal. 218. giving a stricter rule, Hodgkins «.
* Bill V. Bament, 9 M. & W. 86. Bond, 1 N. H. 284; Jackson v. Titus,
6 Taylor's Ev. § 939 ; Caton v. 2 Johns. R. 482.
Caton, 2 Law Rep. H. L. 127; Lobb v. o Johnson v. Dodgson, 2 M. & W.
Stanley, 5 Q. B. 574, 583; Johnson 659, per Ld. Abinger; Taylor, §939.
V. Dodgson, 2 M. & W. 669, per Ld. ' Welford v. Beezley, 1 Ves. Sen. 6.
Abinger; Durrell v. Evans, 1 H. & C. s Hubert v. Treherne, 3 M. & Gr.
112 743; 4 Scott N. R. 486, 5. C.
CHAP. XI.]
STATUTE OF FRAUDS.
[§ 873.
utes, the memorandum must be signed at the end by the party
charged.^ While the party's christian name may be given by ini-
tials, or omitted altogether ; ^ the surname must be substantially
exact. HenCe it has been held that if a letter be signed by the
mere initials of the party, if such initials cannot be identified by
parol,^ or if it be subscribed, without signature, " by your affec-
tionate mother," * or the like, it will not suffice. A printed sig-
nature has been accepted as adequate where the party to be
charged had written other parts of the memorandum, or had
done other acts amounting to a recognition of his printed name. 8
All that is required, to satisfy the statute, is that the agreement
or memorandum should be signed " by the party to be charged
therewith," that is, by the party whether plaintiff or defendant
against whom the claim is made." An oral acceptance of a writ-
ten and signed proposal in its entirety is sufficient.'^
1 Davis V. Shields, 26 Wend. 341,
reversing S. C. 24 Wend. 322; James
V. Patten, 6 N. Y. 9, reversing S. C. 8
Barb. 344.
2 Lobb V. Stanley, 5 Q. B. 574, 581;
Ogilvie V. Foljambe, 3 Mer. 53.
= Hubert i>. Moreau, 2 C. & P. 528;
12 Moore, 216, S. C. ; Sweet v. Lee,
3 M. & Gr. 452, 460. To the effect
that parol evidence is admissible to
explain initials, see Phillimore v. Bar-
ry, 1 Camp. 513 ; Salmon Falls Co. v.
Goddard, 14 How. 447 ; Barry v.
Coombe, 1 Peters, 640 ; Sanborn v.
Flagler, 9 Allen, 474. Infra, § 939.
* Selby V. Selby, 3 Mer. 2, per Sir
W. Grant.
^ Schneider v. Norris, 2 M. & Sel.
286; Saunderson u. Jackson, 2 B. &
P. 238. See Penniman v. Hartshorn,
13 Mass. 87. In New York a printed
signature, under the revised statutes,
is insuflScient. Davis v. Shields, 26
Wend. 351.
' Taylor's Ev. § 940 ; Laythoarp v.
Bryant, 2 Bing. N. C. 735; 8 Scott,
238, S. C. ; Liverpool Borough Bk. ».
Eccles, 4 H. & N. 139; Seton v. Slade,
7 Ves. 276, per Ld. Eldon ; Edgerton
V. Mathews, 6 East, 307; Allen v.
Bennet, 3 Taunt. 169. The last two
cases were decisions on § 17, which
uses the word parlies. These cases,
Mr. Taylor holds, overrule the dicta
of Ld. Eedesdale and Sir T. Plumer,
in Lawrenson v. Butler, 1 Sch. & Lef.
13 ; and O'Rourke v. Perceval, 2 Ball
& B. 58. As to when a covenantee
may sue for a breach of covenant, al-
though he has not executed the deed,
Mr. Taylor refers to Wetherell v. Lang-
ston, 1 Ex. K. 634 ; Pitman v. Wood-
' Taylor's Ev. § 940, citing Cress-
well, J., in Ashcroft v. Morrin, 4 M. &
Gr. 451; Watts v. Ainsworth, 3 Fost.
& Fin. 12 ; 1 H. & C. 83, S. C; Smith
V. Neale, 2 Com. B. N. S. 67, 88 ; Peek
V. N. Staffords. Ky. Co. 29 L. J. Q. B.
97, in Ex. Ch. ; Warner v. Willington,
3 Drew. 532 ; Reuss v. Picksley, Law
Rep. 1 Ex. 342 ; 4 H. & C. 588, S. C.
See Forster v. Rowland, 7 H. & N.
103; Penniman v. Hartshorn, 13 Mass.
87; Bent v. Cobb, 9 Gray, 397 ; Mc-
Comb V. Wright, 4 Johns. C. 659.
113
§ 875.J
THE LAW OF EVIDENCE.
[book II.
When
main ob-
ject of con-
tract is
gale of
goods, con-
tract must
be in writ-
ing.
§ 874. When the object of the contract is the sale of goods of
the price or value of £10 or upwards, or whatever may
be the limit, the contract falls within the seventeenth
section, though it includes other matters, as, for in-
stance, the agistment of cattle, to which the statute
does not apply.^ Contracts for work and labor are not
included in the statute ; and hence, if a contract is sub-
stantially for labor, though it incidentally involves the transfer
of goods, it need not be in writing.^ Still, if the main object be
the delivery of goods, the contract must be written ; and hence,
a contract to make a set of teeth to fit the employer's mouth has
been held to be within the statute.^ Fixtures, also, when chat-
tels, are not within the fourth section, so that a contract con-
cerning them must be in writing.* With respect to the price,
when several articles are bought at one time, the transaction
will be regarded as one entire contract, though the prices are
distinct ; and, consequently, if the whole purchase money amounts
to the minimum fixed by the statute, the case will be covered by
the statute, though neither of the articles taken separately may
be of that value.^ A mere agreement to give credit, on account
of a precedent debt, does not validate the sale.®
§ 875. To take a case out of the seventeenth section, on the
Accept- gi'ound that the goods have been accepted and received,
recdpt'of ^o ^^ *" come within the exception to the section, a
bury, 3 Ex. R. 4; Brit. Emp. Ass.
Co. V. Browne, 12 Com. B. 723; Mor-
gan V. Pike, 14 Com. B. 473 ; Swat-
man V. Ambler, 8 Ex. R. 72. In New
York, under the statute, the contract
may be signed only by the party
chargeable. McCrea v. Purmort, 16
Wend. 460; Edwards v. Ins. Co. 21
Wend. 467; Worrall v. Munn, 5 N.
Y. 229; Nat. Ins. Co. v. Loomis, 11
Paige, 431 ; Dyfcers v. Townsend, 24
N.y.57; Burrelli).Root,40N.Y.496;
Justice V. Lang, 42 N. Y. 493 ; S. C.
52 N. Y. 323 ; and so generally Mar-
queze v. Caldwell, 48 Miss. 23 ; Vas-
sault V. Edwards, 43 Cal. 458; Ru-
tenberg v. Main, 47 Cal. 213.
1 Harman v. Reeve, 25 L. J. C. P.
114
257. In New York the limit is $50;
"gold," when treated as a staple, is
within the statute. Peabody v. Spey-
ers, 56 N. Y. 230.
s Clay V. Yates, 1 H. & N. 73.
» Lee V. Griffin, 1 B. & S. 272.
* Browne on St. of Frauds, § 234.
5 Taylor's Ev. § 956 ; Baldey t).
Parker, 2 B. & C. 37; 3 D. & K. 220,
S. C. See, also, Elliott v. Thomas, 3
M. & W. 170 ; Bigg v. Whisking, 14
Com. B. 195; Mills v. Hunt, 17 Wend.
883; 20 Wend. 431 ; Oilman v. Hill,
36 N. H. 811; Shindler t». Houston, 1
Comst. (N. Y.) 261.
« Brabin v. Hyde, 32 N. Y. 519;
Mattice v. Allen, 3 Keyes, 492 ; Teed
V. Teed, 44 Barb. 96.
CHAP. XI.]
STATUTE OF FRAUDS.
[§ 875.
compliance witli both requisites is necessary.^ An ac- goods
ceptance and receipt of a substantial part of the goods, out rf^stat
however, will be as operative as an acceptance and "'®"
receipt of the whole.^ The acceptance may either precede or
follow the receiving of the article, or may accompany such
receiving.^ The authorization of an agent to receive, does not
imply authorization to accept.* The receipt must be of a char-
acter to preclude the vendor from retaining any lien on the
goods.^ As long as a seller preserves his control over the goods,
so as to retain his lien, he prevents the vendee from accepting
and receiving them as his own, within the meaning of the stat-
ute.® A sale in which the seller refuses to permit the buyer to
take possession or control of the goods, but claims and asserts
his lien as vendor, does not exhibit an acceptance under the
statute.^ The acceptance must be absolute and final.* It must
^ Cusack V. Robinson, 1 B. & S.
299 ; Cross v. O'Donnell, 44 N. Y. 661 ;
Caulking v. Hellman, 47 N. Y. 449;
Hicks V. Cleveland, 48 N. Y. 84.
2 Morton v. Tibbett, 15 Q. B. 434,
per Ld. Campbell; Kershaw v. Ogden,
34 L. J. Ex. 159; 3 H. & C. 717,
S. C; Gardner v. Grout, 2 C. B. (N.
S.) 340; Danforth v. Walker, 40 Vt.
257; Atwood v. Lucas, 53 Me. 508;
Davis V. Eastman, 1 Allen, 422 ; Car-
ver V. Lane, 4 E. D. Smith, 168;
Dows V. Montgomery, 5 Rob. (N. Y.)
445.
' Cusack V. Robinson, 1 B. & S.
299; Morton v. Tibbett, 15 Q.B. 434.
See Atwood v. Lucas, 53 Me. 508 ;
Danforth v. Walker, 40 Vt. 257; Bass
V. Walsh, 39 Mo. 192 ; Southwest Co.
V. Stanard, 44 Mo. 71.
* Nicholson v. Bower, 1 E. & E.
172; Hansom v. Armitage, 5 B. & A.
557; Norman v. Phillips, 14 M. & W.
276; Barney v. Brown, 2 Vt. 374;
Snow V. Warner, 10 Mete. (Mass.)
133; Cutwater v. Dodge, 6 Wend.
400.
« Baldey v. Parker, 2 B. S C. 37, 44;
3 D. & R. 220, S. C. ; Maberley v.
Sheppard, 10 Bing. 101, 102, per
Tindal, C. J.; Smith, t>. Surman, 9 B.
& C. 561, 577, per Parke, J.; 4 M. &
R. 455, S. C. ; Tempest v. Fitzgerald,
3 B. & A. 680, 684, per Holroyd, J.;
Carter v. Toussaint, 5 B. & A. 859, per
Bayley, J.; Holmes v. Hoskins, 9 Ex.
R. 753 ; Cusack v. Robinson, 1 B. &
S. 308, per Blackburn, J. ; Gilman v.
Hill, 36 N. H. 311; Green v. Mer-
riam, 28 Vt. 801 ; Shindler v. Houston,
1 Comst. 261 ; Leven v. Smith, 1 Denio,
571; Ralph i;. Stuart, 4 E. D. Smith,
627; Vincent v. Germond, 11 Johns.
283; Ward v. Shaw, 7 Wend. 404;
Southwest Co. V. Stanard, 44 Mo. 71.
" Benjamin on Sales, Am. ed. 151;
Browne on St. of Frauds, § 31 7, e< seq. ;
Baldey v. Turner, 2 B. & C. 37; Saf-
ford V. McDonough, 120 Mass. 290.
' SafBord v. McDonough, 120 Mass.
290.
8 Norman t). Phillips, 14 M. & W.
283, per Alderson, B.; Smith o. Sur-
man, 9 B. & C. 661, 577, per Parke,
J. ; 4 M. & R. 455, S. C. ; Howe v.
Palmer, 3 B. & A. 321, 325, per Hol-
royd, J. ; Hansom v. Armitage, 5 B.
& A. 559, per Abbott, C. J. ; Acebal
V. Levy, 10 Bing. 384, per Tindal,
C. J. See, as denying proposition in
115
§ 875.]
THE LAW OF EVIDENCE.
[book II.
be deafly and substantively proved ; ^ but it may take place
subsequently to the making of the verbal agreement.^ Merely
picking out and marking goods by the vendee ^ in the vendor's
shop does not, so it is said, deprive the vendor, even when he
assents to it, of his right of lien.* The question of acceptance
and receipt, is for the jury, to be determined by the circum-
stances of the particular case.^ But ordinarily there is no de-
livery until the goods are under the dominion and exclusive con-
trol of the purchaser.®
Where the goods are ponderous or inaccessible, a constructive
delivery will suffice ; ^ such, for example, as the giving up the
key of the warehouse in which they are deposited, or the ware-
houseman making an entry of transfer in his books, or the de-
text, Morton v. Tibbett, 15 Q. B. 428.
See, also, Parker v. Wallis, 5 E. & B.
21 ; and Currie v. Anderson, 29 L. J.
Q. B. 90, per Crompton, J. ; 2 E. & E.
600, S. C.
1 Carver v. Lane, 4 E. D. Smith,
168; Stone v. Browning, 51 N. Y.
211; Clark v. Tucker, 2 Sandf. 157;
Knight V. Mann, 120 Mass. 219.
= Walker v. Mussey, 16 Mees. & W.
302; Davis v. Moore, 13 Me. 427;
Sprague v. Blake, 20 Wend. 61 ; Mc-
Knight V. Dunlop, 1 Seld. 542 ; Field
V. Bunk, 22 N. J. 525.
' Cusack V. Robinson, 1 B. & S.
299; 30 L. J. Q. B. 261, S. C. See
Spencer v. Hale, 30 Vt. 314.
* Baldy v. Parker, 2 B. & C. 37;
3 D. & R. 220, S. C; Bill v. Bament,
9 M. & W. 36 ; Proctor v. Jones, 2 C.
& P. 532; Kealy v. Tenant, 13 Ir. Law
R. N. S. 394 ; said by Mr. Taylor to
overrule Hodgson v. Le Bret, 1 Camp.
233 ; and Anderson o. Scot, Ibid. 235,
n. See Saunders v. Topp, 4 Ex; R.
390; and Acramanu. Morrice, 8 Com.
B. 449 ; Ward v. Shaw, 7 Wend. 404;
and see, contra, Browne on Frauds, §
325.
s Morton v. Tibbetts, 15 Q. B. 441;
Podsley v. Varley, 12 A. & E. 632 ;
2 P. & D. ii8,.S. C; Langton v.
116
Higgins, 4 H. & N. 402 ; Aldridge v.
Johnson, 7 E. & B. 885 ; Kershaw v.
Ogden, 34 L. J. Ex. 159 ; 3 H. & C.
717, S. C; Elmore v. Stone, 1 Taunt.
458; Smith v. Surman, 9 B. & C. 570;
Castle V. Sworder, 6 H. & N. 828, re-
versing a decision in Ex., reported 5
H. & N. 281 ; Carter v. Toussaint, 5
B. & A. 855 ; 1 D. & R. 515, 5. C;
Beaumont v. Brengeri, 5 Com. B. 301 ;
Holmes v. Hoskins, 9 Ex. R. 753;
Marvin v. Wallace, 6 E. & B. 726;
Taylor v. Wakefield, 6 E. & B. 765;
Edan v. Dudfield, 1 Q. B. 302; 4
P. & D. 656, S. C. ; Lillywhite v. De-
vereux, 15 M. & W. 289, 291. See
Boynton v. Veazie, 24 Me. 286; Green
V. Merriam, 28 Vt. 801 ; Wilkes v. Fer-
ris, 5 Johns. R. 344 ; Benford v.
Schell, 55 Penn. St. 393 ; Phillips v.
Hunnewell, 4 Greenl. 376 ; Oilman «.
Hill, 36 N. H. 311 ; Ely i>. Ormsby,
12 Barb. 570 ; Bailey v. Ogden, 3
Johns. R. 420 ; Simmonds v. Humble,
13 Com. B. N. S. 258. As to the
effect of banding over a sample of the
goods, see Gardner v. Grout, 2 Com.
B. N. S. 340.
^ Outwater v. Dodge, 7 Cow. 85;
Marsh v. Rouse, 44 N. Y. 643 ; Saf-
ford w. McDonough, 120 Mass. 290.
' See Parker v. Jervis, 3 Keyes, 271.
CHAP. XI.]
STATUTE OF FRAUDS.
[§ 876.
livery of other indicia of property.^ Sucli acts, however, must
be unequivocal.^ Hence, it has been held that the mere accept-
ance and retainer, by the purchaser of the delivery order, of
goods deposited with a warehouseman as agent of the vendor,
will not amount to an actual receipt of the goods, so as to bind
the bargain.^ To work a transfer, the delivery order must be
lodged by the purchaser with the warehouseman, who must agree
to become the agent of the vendee.*
§ 876. It was at one time supposed that where goods, orally
purchased, are delivered to a carrier or wharfinger , .
named by the vendee, such delivery was sufficient to anoeby
satisfy the statute.^ The better opinion, however, now express-
is, that though the delivery to the carrier may be a de- ^cepunce
livery to the purchaser, the acceptance of the carrier is ^^ ™ndee.
not an acceptance by the purchaser, unless he be authorized by him
to accept.^ Acceptance by the customary carrier, or expressman,
is not per se sufficient.^ The carrier's authority from the vendee.
^ Chaplin v. Rogers, 1 East, 195,
per Ld. Kenyon ; Brinley v. Spring,
7 Greene, 241 ; Chappel v. Marvin, 2
Aik. 79 ; Leonard v. Davis, 1 Black
(U. S.), 476 ; Badlam v. Tucker, 1
Pick. 389 ; Higgins v. Cheesman, 9
Pick. 6 ; Turner v. Coolidge, 2 Mete.
(Mass.) 350 ; Jewett v. Warren, 12
Mass. 300 ; Wilkes v. Ferris, 5 Johns.
R. 344; Calkins v. Lockwood, 17
Conn. 174; Benford v. Schell, 55
Penn. St. 393 ; Harvey v. Butchers,
39 Mo. 211 ; Sharon v. Shaw, 2 Nev.
289.
2 NichoUe v. Plume, 1 C. & P. 272,
per Best, C. J. ; Edan v. Dudfield, 1
Q. B. 307. See Boardman v. Spooner,
13 Allen, 353 ; Gushing v. Breed, 14
Allen, 376 ; Remick v. Sandford, 120
Mass. 309 ; Wilkes v. Ferris, 5 Johns.
R. 335 ; Stanton v. Small, 3 Sandf.
230.
' M'Ew^n V. Smith, 2 H. of L. Gas.
309.
* Farina v. Home, 16 M. & W. 119,
123, per Parke, B.; Bentall v. Burn,
3 B. & C. 423 ; 6 D. & R. 284, S. C.
See, to same efEect, Gushing v. Breed,
14 Allen, 376 ; Stanton v. Small, 3
Sandf. 230 ; Franklin v. Long, 7 Gill
& J. 407 ; Williams v. Evans, 39 Mo.
201. See Hankins v. Baker, 46 N. Y.
666.
s Hart V. Sattley, 3 Camp. 528, per
Chambre, J. See Dawes v. Peck, 8
T. R. 330, and Dutton v. Solomonson,
3 B. & P. 582.
« Johnson v. Dodgson, 2 M. & W.
656, per Parke, B. ; Frostburg v.
Mining Co. 9 Gush. 117; Rodgers v.
Phillips, 40 N. Y. 519. See Thomp-
son V. Menck, 2 Keyes, 82 ; Acebal v.
Levy, 10 Bing. 376; 4 M. & Sc. 217,
S. C; Coats v. Chaplin, 3 Q. B. 483;
Nicholson v. Bower, 1 E. & E. 172, S.
C. ; Norman v. Phillips, 14 M. & W.
277 ; Meredith v. Meigh, 2 E. & B.
364 ; Hunt v. Hecht, 8 Ex. R. 814 ;
Hart V. Bush, £., B. & E. 494.;
Coombs V. Bristol & Ex. Ry. Co. 27
L. J. Ex. 401 ; Smith v. Hudson, 6
B. & S. 431, and cases cited to note
4, § 875.
' Frostburg v. Mining Co. 9 Gush.
117
§ 878.] THE LAW OF EVIDENCE. [BOOK D.
however, is a question of fact.^ It must also be remembered,
that a vendee may be bound by the retention for an unreason-
able time, by his general agent, of goods, when the latter has
been authorized by the former to examine their quality .^
§ 877. By the statute of frauds, as well as by the Code of
Partial '^^'^ York, and those of several other states, payment
payment of part will take a parol sale out of the statute,^ and it
may take '■ _ '■ i i -u
case out of is sufficient if this payment be made subsequent to the
sale, if the object be to validate the sale.* A tender,
unaccepted, is insufficient.^ And the payment must be actual.^
A mere agreement to pay, without corresponding credit, or
some equivalent act of acceptance taking place, is not by itself
enough.'
IV. GUARANTEES.
§ 878. The fourth section of the statute of frauds, which has
been held to be inapplicable to deeds,^ enacts, that no
must be in action shall be brought whereby to charge any execu-
tor or administrator upon any special promises to an-
swer damages out of his own estate ; or any person upon any
special promise to answer for the debt, default, or miscarriage of
another ; or upon any agreement made in consideration of mar-
riage ; or upon any contract or sale of lands, tenements, or here-
ditaments, or any interest in or concerning them ; or upon any
agreement that is not to be performed within one year from the
making thereof ; unless the agreement, upon which such action
shall be brought, or some memorandum or note thereof, shall be
in writing, and signed by the party to be charged therewith, or
some other person thereunto by him lawfully authorized.^ An
117. See Meredith J). Meigh, 2 E. & « Edgerton v. Hodge, 41 Vt. 676.
B. 364. 8 Artcher v. Zeh, 5 Hill, 200 ;
1 Snow V. Warner, 10 Mete. 132 ; Mattice v. Allen, 33 Barb. 543. See
Hawley v. Keeler, 53 N. Y. 114. Ireland v. Johnson, 28 How. Pr.
= Norman v. Phillips, 14 M. & W. 463.
283. ' Walker v. Mussey, 16 M. & W.
» Langfort V. Tyler, 1 Salk. 113 ; 802 ; Ely v. Ormsby, 12 Barb. 570;
Blenkinaop v. Clayton, 7 Taunt. 597. Brand v. Brand, 49 Barb. 346 ; Wal-
* Bissell V. Balcom, 39 N. Y. 278, rath v. Jpgles, 64 Barb. 265 ; Brabin
reversing S. C. 40 Barb. 98 ; AUis «. Hyde, 32 N. Y. 519.
V. Read, 45 N. Y. 142 ; Webster v. » Cherry v. Heming, 4 Ex. K. 631.
Zielly, 52 Barb. 482; Hunter v. Wet- » As to meaning of words "law-
Bell, 57 N. Y. 875. fully authorized," see Norris v. Cooke
118
CHAP. XL]
STATUTE OF FKAUDS.
[§ 879.
oral guarantee of the note of a third person, given in payment
of a debt of the guarantor, is within the statute.^
§ 879. An important distinction exists between cases where,
though goods are supplied to a third party, credit is
given solely to the defendant, and cases where the per- tory re-
ji 7 ,1 -I r ' 1 1 ' • '1 striction as
son for whose use the goods are lurnished is primarily to guar-
liable, and the defendant only undertakes to pay for f^tM^to"'
them in the event of the other party making default, collateral,
^ •' o notong-
An original promise, as above stated, need not be in inai prom-
writing, under the 'statute; a collateral promise has
to be in writing.^ In the application of this distinction, it has
been held that agreements by factors to sell upon del credere
commission do not fall within the fourth section of the statute
of frauds, and, consequently, need not be in writing.^ But with
this exception' cases of this kind must be determined on the
concrete facts, as to whether the evidence shows an original or a
collateral promise.* It is plain that an agreement, upon a new
and sufficient consideration to pay another's debt, is not within
the statute.^
30 L. T. 224 ; and see generally,
Mahan v. U. S. 16 Wall. 143 ; Durant
V. Allen, 48 Vt. 58 ; Calkins v. Falk,
1 Abb. (N. Y.) App. 291 ; Norris
V. Blair, 39 Ind. 90.
1 Gill V. Herrick, 111 Mass. 501 ;
DowB V. Swett, 120 Mass. 322.
' Taylor's Ev. § 941 a, citing Birk-
myr v. Darnell, Salk. 27 ; 1 Smith L.
C. 262, S. C; Forth v. Stanton, 1
Wms. Saund. 211 a-211 e; Barrett u.
Hyndman, 3 Ir. Law R. 109 ; Fitz-
gerald V. Dressier, 29 L. J. C. P. 113;
7 Com. B. N. S. 374, S. C; Mallett
t». Bateman, 16 Com. B. N. S. 530;
35 L. J. C. P. 40, in Ex. Ch. ; 1 Law
Rep. C. P. 163 ; and 1 H. & R. 109,
S. C. See Orrell v. Coppock, 26 L.
J. Ch. 269 ; Hunter v. Randall, 62
Me. 423 ; Alger v. Scoville, 1 Gray,
391 ; Jepherson v. Hunt, 2 Allen, 423
Kingsley v. Balcome, 4 Barb. 131
Larson v. Wyman, 14 Wend. 246
Mallory v. Gillett, 21 N. Y. 412
Duffy V. Wunsch, 42 N. Y. 243; Mer-
riman v. Liggett, 1 Weekly Notes, 379
Jefferson v. Slagle, 66 Penn. St. 202
Chamberlin v. Ingalls, 38 Iowa, 300
Lester v. Bowman, 39 Iowa, 611
Dickenson v. Cfclter, 45 Ind. 445 ; Pat-
mor V. Haggard, 78 111. 607.
» Couturier v. Hastie, 8 Ex. R. 40;
Wickham v. Wickham, 2 K. & J. 478,
per Wood, V. C; Wolfe v. Koppel, 5
Hill, 458 ; 5. C. 2 Denio, 368 ; Brad-
ley V. Richardson, 23 Vt. 720 ; Swan
V. Nesmith, 7 Pick. 220.
* 1 Wms. Saund. 2 U b; 1 Smith
L. C. 262. See Mountstephen v. Lake-
man, Law Rep. 5 Q. B. 613, S. C;
L. R. 7 Q. B. 196; S. C, per Ex. Ch.,
where three judges thought that the
defendant's undertaking did, and five
thought that it did not, render him
primarily liable.
6 Gold V. Phillips, 10 Johns. R. 412;
Myers v. Morse, 15 Johns. R. 425 ;
Farley v. Cleveland, 9 Cow. 689 ;
119
880.]
THE LAW OF EVIDENCE.
[book n.
§ 880. The statute, it will be remembered, limits the guar-
antees, which it requires to be in writing, to promises
To consti- „ ,-,, iri, ..-
tute a " to answer for the debt, default, or miscarriage of an-
uSder'thl Other."' It has been consequently held, that to bring
fndebted^^ the case within the statute, the liability of that other
nessofthe umg^ continue, notwithstanding the promise.^ Thus
guaranteed where the defendant, in consideration that the plain-
must be p T 1 . 1 1
cpntinu- tiff would discharge out of custody his debtor taken on
a ca. sa., promised to pay the debt, it was held not to
be necessary that this promise should be in writing, the reason
being that the debtor's liability is at an end when he is dis-
charged, and the promise of the defendant cannot take effect till
after the discharge.^ It has, however, been held, where an exe-
cution debtor was discharged out of custody upon giving a war-
rant of attorney to secure the payment of his debt by instal-
ments, and the defendant, knowing of this warrant of attorney,
undertook, in consideration of the discharge, to see the debt paid,
that as the debtor's liability was kept alive by the warrant, the
defendant's undertaking should be regarded in the light of a col-
lateral guarantee, and as such, was a promise within the mean-
ing of the statute.* It is said, also, to make no difference whether
the goods were delivered to the third party ,^ or the debt incurred,
Union Bk. v. Coster, 3 N. Y. 203 ; coran, 1 Allen, 405 ; Watson v. Ran-
Sanders v. Gillespie, 64 Barb. 628 ;
Tallman v. Bresler, .65 Barb. 369;
Griffin V. Keith, 1 Hilt. 58 ; Bissig v.
Britton, 59 Mo. 204. See Green v.
Disbrow, 56 N. Y. 334. As to the
Pennsylvania rule, see Maule v. Buck-
nell, 50 Penn. St. 39, qualifying in
part Leonard v. Vredenburgh, 8 Johns.
R. 29.
1 See Macrory v. Scott, 5 Ex. R.
907.
^ See Gull V. Lindsay, 4 Ex. R. 45,
52; Butcher v. Steuart, 11 M. & W.
857, 873; Lane v. Burghart, 1 Q. B.
933, 937, 938; 1 G. & D. 312, S.' C.
See Reader v. Kingham, 13 Com. B.
N. S. 344; Anderson v. Davis, 9 Vt.
136; Watson v. Jacobs, 29 Vt. 169;
Stone V. Symmes, 18 Pick. 467; Curtis
V. Brown, 5 Cush. 492 ; Wood v. Cor-
120
dall, 20 Wend. 201 ; AUshouse v.
Ramsay, 6 Whart. R. 331 ; Andre v.
Bodman, 13 Md. 241; Draughan v.
Bunting, 9 Ired. L. 10; Click «>. Mc-'
Afee, 7 Port. 62; Eddy v. Roberts, 17
111. 505. Meriden Co. v. Zingsen, 48
N. Y. 247.
* Bird V. Gammon, 3 Bing. N. C.
883; 5 Scott, 213; Goodman w. Chase,
1 B. & A. 297.
* Lane v. Burghart, 3 M. & Gr.
597. See Cooper v. Chambers, 4 Dev.
(N. C.) 261.
6 Matson v. Wharam, 2 T. R. 80 ;
Anderson v. Hayman, 1 H. Bl. 120;
Mountstephen v. Lakeman, 5 Law
Rep. Q. B. 613, S. O. Judgment re-
versed, but on another ground, L. K.
7 Q. B. 196.
CHAP. XI.]
STATUTE OF FRAUDS.
[§ 881.
or the default committed by him, before or after the promise
by the defendant ; for a promise to indemnify is substantially
within the statute.-' But an undertaking to indemnify an-
other against all liability, if he would enter into recognizances
for the appearance of a defendant in a criminal trial, is held not
to fall within the meaning of the statute, as relating to a criminal
proceeding.^ It must be noticed, however, that the statute covers
cases of promises to make good the tortious as well as the con-
tractual defaults of another.^
§ 881. A guarantee, to take the case out of the statute, must
be exact and fully proved. " The evidence, to change an exist-
ing contract relation between the plaintifE and a third party,
and to prove a promise by the defendant to pay the debt of
another, as a new and original undertaking, and not a contract
of suretyship, must be clear and satisfactory ; otherwise the case
will fall within the operation of the statute of frauds, requiring
the promise to be in writing." *
1 Green v. Cresswell, 10 A. & E.
453, 458 ; 2 P. & D. 430, S. C, over-
ruling the dicta of Bayley and Parke,
JJ., in Thomas v. Cook, 8 B. & C.
728; 3 M. & E. 444, S. C; and ex-
plaining Adams v. Dansey, 6 Bing.
506.
2 Cripps V. HartnoU, 4 B. & S. 414,
per Ex. Ch., overruling S. C; 2 B.
& S. 697. See Kelsey v. Hibbs, 13
Oh. St. 340.
« Kirkham v. Marter, 2 B. & A.
613; Turner v. Hubbell, 2 Day, 457;
Richardson v. Crandall, 48 N. Y. 348.
* Eshleman v. Harnish, 76 Penn.
St. 97; affirmed in Haverly v. Mercur,
78 Penn. St. 263.
How far irregular indorsement is a
guarantee. — ' ' The interesting ques-
tion, how far a defendant can be held
who has irregularly indorsed a note, —
as, for example, above the signature of
the person to whose order the note is
made; or where the plaintiff, himself
first indorser, seems to hold the alleged
guarantor, who is a later indorser, —
has been much discussed in Pennsylva-
nia, and it has been decided that the
indorser is liable neither on the paper
under the law-merchant, nor on his in- '
dorsemeut as a sufficient memorandum
under the statute of frauds, nor on the
parol guarantee which the note irreg-
ularly executed was intended to evi-
dence. Jack V. Morrison, 48 Penn.
St. 113; Schafer v. The Bank, 59
Penn. St. 144 ; Alter v. Langebartel,
5 Phila. 151 ; Murray v. McKee, 60
Penn. St. 35. See Barto v. Sohmeck,
28 Penn. St. 447 ; Slack v. Kirk, 67
Penn. St. 384 ; Wilson v. Martin, 74
Penn. St. 159; Martin v. Duffey, 4
Phila. 75 ; Robinson v. Rebel, 1 Week.
Notes, Phila. 49; Fuller v. Scott, 8
Kans. 32; Underwood v. Hossack, 38
111. 214 ; Hodgkins v. Bond, 1 N. H.
284 ; Turrell u. Morgan, 7 Minn. 368.
In Eibert v. Finkbeiner, 68 Penn. St.
243, it was held that while before 1855
an irregular indorsement could be
shown by parol (cases being cited) to
be intended to be a guarantee, since
1855 the same end could , be accom-
plished by writings properly signed
121
§ 882.]
THE LAW OF EVIDENCE.
[book U.
V. MAERIAGE SETTLEMENTS.
§ 882. The statute further makes writing an essential to
Marriage " agreements made in consideration of marriage."
mustbl ta' These words, it has been held, do not embrace mutual
writing. promises 'to marry ; and therefore, notwithstanding the
act, such promises may be verbally made.^ It should also be ob-
served that though there may be, in other respects, such a part
performance of marriage contracts as to take the case out of the
statute,^ yet that the marriage per se is not a part perform-
ance within this rule.^ Hence if a suitor orally promises to
settle property on his intended wife, and the woman, relying on
his honor, marries him, she cannot compel the performance of the
settlement.* But it is now ruled in England, that an oral agree-
so as to comply with the statute of
frauds." Reed's Cases, ut supra.
1 Taylor's Ev. § 945; B. N. P.
280 c.
» Thynne v. Glengall, 2 H. of L.
Cas. 131; Clinan v. Cooke, 1 Sch. &
Lef. 41; Kine v. Balfe, 2 Ball & B.
347, 348; Surcome v. Pinniger, 3 De
Gex, M. & G. 571 ; Taylor v. Beech,
1 Ves. Sen. 297; Clark v. Pendleton,
20 Conn. 508; Dugan v. Gittings, 3 Gill,
138; Dunn v. Tharp, 4 Ired. Eq. 7.
^ Hammersley v. Baron de Biel, 12
CI. & Fin. 64, per Lord Cottenham;
Redding v. Wilks, 3 Br. C. C. 401 ;
Lassence v. Tierney, 1 M. & Gord.
571, 5/2, per Ld. Cottenham; 2 Hall
& T. 115, 134, 135, S. C; Warden v.
Jones, 23 Beav. 487 ; afF. on app. 2 De
Gex & J. 76, 84; Finch v. Finch, 10
Oh. St. 501. See expressions in Hatch-
er V. Robertson, 4 Strobh. Eq. 179.
* Montaoute v. Maxwell, 1 P. Wms.
619; Caton v. Caton, Law Rep. 1 Ch.
Ap. 137; 2 Law Rep. H. L. 127. See,
for converse, Goldicutt v. Townsend,
28 Beav. 445.
In Newman v. Piercey, High Court,
Chancery Division, 25 W. R. 86, a
father, before the marriage of his
daughter, told her and her intended
122
husband that he had given her a lease-
hold house on her marriage. Imme-
diately after the marriage, the daughter
and her husband took possession of
the house, paid the ground-rent, and
exercised acts of ownership. The
father, after the marriage, refused to
complete the gift by assignment. He
continued to pay instalments of the
purchase money to the building society
through which he had purchased it,
but a sum of £110 was due to the so-
ciety at the time of his death, which
took place four years after the mar-
riage. Held, (1.) that the possession
following the verbal gift was a suffi-
cient part performance to take the case
out of the statute of frauds ; and (2.)
that the £110 must be paid out of the
intestate's general assets.
See, however, as to redi-ess in
cases of fraud, Baron de Biel v. Ham-
mersley, 3 Beav. 469, 475, 476, per Ld.
Langdale; 12 CI. & Fin. 45, 64; Wil-
liams V. Williams, 87 L. J. Ch. 854,
per Stuart, V. C. See, also, Maunsell
V. White, 4 H. of L. Cas. 1039 ; Bold
V. Hutchinson, 20 Beav. 250; S De
Gex, M. & G. 558, S. C; Jameson
V. Stein, 21 Beav. 5 ; Kay v. Crook, 3
Sm. & Giff. 407.
CHAP. XI.]
STATUTE OF FRAUDS.
[§ 883.
ment made before marriage will be enforced in equity, if subse-
quently to the marriage it has been recognized and adopted in
writing ; ^ though there will be no interference, unless it appear
that the marriage was contracted on the faith of the agree-
ment.2
VI. AGREEMENTS IN FUTUEO.
§ 883. The statutory prescription, that an agreement not to he
performed within a year from the making thereof must
be in writing, has been held not to operate where the ments not
contract is capable of being performed on the one side formeS.^''
or on the other within a year.* It has also been held yearmnst
not to extend to an agreement, made by a contractor be in-writ-
to allow a stranger to share in the profits of a contract,
that is incapable of being completed within a year, because such
an agreement amounts to nothing more than the sale of a right
which is transferred entire on the bargain being struck.* It
is further argued that the statute is inapplicable in any case
where the action is brought upon an executed consideration.^
1 Taylor's Ev. § 945, relying on
Barkworth v. Young, 26 L. J. Ch. 153,
157, per Kindersley, V. C; Hammers-
ley V. Baron de Biel, 12 CI. & Fin. 64,
per Ld. Cottenham, citing Hodgson
V. Hutchinson, 5 Vin. Abr. 522; Tay-
lor V. Beech, 1 Ves. Sen. 297; and
Montacute v. Maxwell, 1 Str. 236; and
questioning Randall v. Morgan, 12
Ves. 73, where Sir W. Grant ex-
pressed serious doubt upon the sub-
ject. See 12 CI. & Fin. 86, per Ld.
Brougham ; and 3 Beav. 475, 476, per
Ld. Langdale. Also Caton v. Caton,
1 Law Rep. Ch. Ap. 137; 35 L.J. Ch.
292, S. C, overruling S. C. as de-
cided by Stuart, V. C. 34 L. J. Ch.
564.
" Ayliffe V. Tracy, 2 P. Wms. 65.
» Cherry v. Heming, 4 Ex. R. 631;
and Smith v. Neale, 2 Com. B. N. S.
67; both recognizing Donellan w. Read,
3 B. & Ad. 899. See Taylor's Ev. §
946; S. P., Holbrook v. Armstrong, 10
Me. 31 ; Cabot v. Haskins, 3 Pick.
83 ; Greene v. Harris, 9 R. I. 401 ;
Hodges V. Man. Co. 9 R. L 482;
Hardesty v. Jones, 10 Gill & J. 404;
Bates V. Moore, 2 Bailey, 614; Comp-
ton V. Martin, 5 Richards, 14 ; John-
son V. Watson, 1 Ga. 848; Rake v.
Pope, 7 Ala. 161; Suggett v. Cason,
26 Mo. 221 ; Haugh v. Blythe, 20 Ind.
24; Marley v. Noblett, 42 Ind. 85;
Curtis V. Sage, 35 111. 22 ; Larimer v.
Kelley, 10 Kans. 298; Blair w. Walker,
39 Iowa, 406. See Riddle v. Backus,
38 Iowa, 81. But the doctrine of
Donellan v. Reed has ' been emphati-
cally repudiated in Frary v. Sterling,
99 Mass. 461; Broadwell v. Getman,
2 Denio, 87; Pierce v. Paine, 28 Vt.
34 ; Emery v. Smith, 46 N. H. 151; 1
Smith's Leading Cas. 145, Am. ed.;
Browne on Frauds, §§ 289-90.
* M'Kay v. Rutherford, 6 Moo. P.
C. R. 413, 429.
6 See Taylor's Ev. §§ 893, 900-2,
953-4; Souch t>. Strawbridge, 2 Com.
B. 814, per Tindal, C. J. See Re
123
883.]
THE LAW OF EVIDENCE.
[book II,
A part performance, however, is not of itself sufficient to take
the case out of the statute ; but whenever it appears, either by
express stipulation, or by inference from the circumstances, that
the contract is not to be completed on either side within the
year, written proof of the agreement must be given.i A part
performance during the year will not be sufficient in such case.^
Thus, where a servant is orally hired for a year's service, the
service to begin at a future day, he cannot maintain an action
against his master for discharging him before the expiration of
the year.3 It should be added, that the mere fact that the
contract may be determined by the parties within the year,
will not take the case out of the statute, if by its terms it
purports to be an agreement, which is not to be completely
performed till after the expiration of that period.* It is other-
wise if the agreement is silent as to the time within which it
is to be performed, and its duration rests upon a contingency,
which is probable, but which may or may not happen within the
year ; ^ or wh«n the gist of the agreement is that either party
may rescind the contract within a year.^ But a party who re-
Pentreguinea Coal Co. 4 De Gex, F.
& J. 541.
1 Boydell v. Drummond, 11 East,
142, 156, 159.
2 Lockwood V. Barnes, 3 Hill. 128;
Wilson !'. Martin, 1 Den. 602; Day v.
R. R. 31 Barb. 548.
' Bracegirdle v. Heald, 1 B. & A.
722; Snelling v. Huntingfield, 1 C,
M. &R. 20; 4 Tyr. 606, S. C; Gi-
raud 1'. Richmond, 2 Com. B. 835. See
Cawthorne v. Cordrey, 13 Com. B. N.
S. 406 ; Nones v. Homer, 2 Hilton,
116; Sheehy v. Adarene, 41 Vt. 541 ;
Kelly V. Terrell, 26 Ga. 551 ; Shipley
V. Patton, 21 Ind. 169.
* Birch V. Ld. Liverpool, 9 B. & C.
392, 395 ; 4 M. & R. 380, S. C. ; Rob-
erts V. Tucker, 3 Ex. R. 632; Dobson
V. CoUis, 1 H. & N. 81 ; Pentreguinea
Coal Co. re, 4 De Gex, F. & J. 541;
R. 0. Herstmonceaux, 7 B. & C. 555,
per Bayley, J.
« Taylor'B Ev. § 947 ; Souch v.
124
Strawbridge, 2 Com. B. 808; Ridley
V. Ridley, 462, per Romilly, M. E.;
34 Beav. 478; Wells v. Horton, 4
Bing. 40; 12 Moore, 177, S. C; Gil-
bert V. Sykes, 16 East, 154; Peter v.
Compton, Skin. 353 ; 1 Smith L. C.
283, S. C; Fenton v. Emblers, 3
Burr. 1278 ; 1 W. Bl. 353, S. C. See
Mavor v. Payne, 3 Bing. 285; 11
Moore, 2, S. C. ; Murphy v. Sullivan,
.11 Ir. Jur. N. S. Ill; Farrington w.
Donohue, 1 I. R. C. L. 675; Linscott
V. Mclntire, 15 Me. 201 ; Kent ti.
Kent, 18 Pick. 569 ; Lapham v. Whip-
ple, 8 Met. 59 ; Plimpton v. Curtis,
15 Wend. 336; Artcher v. Zeh, 5 Hill,
200.
° Birch V. Liverpool, ul supra ; Sher-
man V. Trans. Co. 31 Vt. 162; Trus-
tees V. Ins. Co. 19 N. Y. 305 ; Weir
V. Hill, 2 Lans. 278; Argus Co. ».
Albany, 7 Lansing, 264; 55 N. Y,
498; Han-is v. Porter, 2 Harr. (Del.)
27.
CHAP. XI.] STATUTE OF FRAUDS. [§ 884.
fuses to go on with an agreement, after deriving a benefit from
part performance, must pay for what he has received.^
VII. WILLS.
§ 884. It is beyond the compass of the present treatise to ana-
lyze the statutory provisions, adopted in the several ^iHmugj
states of the American Union, to regulate the execu- •>» «?«■
.... cuted m
tion and proof of wills. In several iurisdictions we conformity
with stat-
find reproduced the English Will Act, which, in order ute, En^-
to show how far we may avail ourselves in this relation Xct of'
of the English adjudications, it may be expedient here ■^^^*-
to give complete. By that statute,^ the corresponding section of
the statute of frauds is repealed ; and it is enacted by section 9,
that " No will shall be valid unless it shall be in writing and ex-
ecuted in manner hereinafter mentioned (that is to say) : it
shall be signed at the foot or end thereof by the testator, or by
some other person in his presence, and by his direction ; and
such signature shall be made or acknowledged by the testator in
the presence of two or more witnesses present at the same time,
and such witnesses shall attest and shall subscribe the will in the
presence of the testator, but no form of attestation shall be nec-
essary." In carrying out the provisions of this enactment, many
wills, just and regular in all other respects, were rendered inop-
erative for inadvertent non-compliance with the forms which it
prescribes. To remedy this was passed the 15 & 16 Vict. c. 24,
s. 1, which, after reciting section 9 of the previous act, enacts, that
" Every will shall, so far only as regards the position of the sig-
nature of the testator, or of the person signing for him as afore-
said, be deemed to be valid within the said enactment, as ex-
plained by this act, if the signature shall be so placed at or after,
or following, or under, or beside, or opposite to the end of the
will, that it shall be apparent on the face of the will that the
testator intended to give effect by such his signature to the
writing signed as his will ; and that no such will shall be affected
by the circumstance that the signature shall not follow or be
immediately after the foot or end of the will, or by the circum-
stance that a blank space shall intervene between the concluding
word of the will and the signature, or by the circumstance that
1 Day V. R. R. 51 N. Y. 583. ^ 7 Will. 4 and 1 Vict. c. 26.
125
§ 885.] THE LAW OF EVIDENCE. [BOOK II.
the signature shall be placed among the words of the testimo-
nium clause or of the clause of attestation, or shall follow or be
after or under the clause of attestation, either with or without a
blank space intervening, or shall follow or be after or under or
beside the names or one of the names of the subscribing wit-
nesses, or by the circumstance that the signature shall be on a
side or page or other portion of the paper or papers containing
the will whereon no clause or paragraph or disposing part of the
will shall be written above the signature, or by the circumstance
that there shall appear to be sufficient space on or at the bottom
of the preceding side or page, or other portion of the same paper
on which the will is written, to contain the signature ; and the
enumeration of the above circumstances shall not restrict the
generality of the above enactment ; but no signature under the
said act, or this act, shall be operative to give effect to any dis-
position or direction which is underneath or which follows it,
nor shall it give effect to any disposition or direction inserted
after the signature shall be made." Under this statute no other
publication than that prescribed is necessary ; ^ and a testamen-
tary appointment is good, if in conformity with the act, though
the instrument establishing it specifies additional solemnities.^
§ 885. The statute of frauds,^ which we must revert to as the
Provisions basis of testamentary legislation in the United States
spect'or' '^^ ^^^^ ^s i'l England, relates exclusively, in its original
the Stat- text, to devises disposing of freehold realty, while the
frauds. will act, just noticed, embraces personal estate. An-
other important distinction is that two attesting witnesses are
sufficient and necessary by the will act in all cases, while the
statute of frauds requires the signature of at least three to all
devises of freehold realty, but is silent as to other wills. By
the will act, also, the testator must make or acknowledge his sig-
nature in the actual contemporaneous presence of these witnesses,
though this is not necessary under the statute of frauds. Once
more, by the will act, the will must be signed " at the foot
or end thereof," whereas, under the statute of frauds, the sig-
1 Vincent v. Bp. of Soder & Man, son, 16 Beav. 548; S. C. 4 De Gex,
4 De Gex & Sm. 294. M. & G. 224; West v. Ray, 1 Kay,
' See as to this, Buckell v. Bleak- 385.
horn, 5 Hare, 181 ; CoUard v. Simp- » 29 Car. 2, c. 3, § 5.
126
CHAP. XI.] STATUTE OF FRAUDS. [§ 886.
nature is valid, if it appears on any part of the instru-
ment.^
§ 886. Under the terms of the will act it has been ruled that
both the attesting witnesses must subscribe the will at Distinctive
the same time, and in each other's presence. Hence, Son^^in^der
where a will was signed in the presence of a single wit- statutes.
ness who then attested it, the second witness signing only when
the testator afterwards acknowledged his signature, this was held
to be insufficient, though on the second occasion the first witness
had acknowledged, but had not re-written, his own signature.^
The same conclusion has been reached where one of the witnesses
to a will, on the occasion of its being reexecuted in his presence,
retraced his signature with a dry pen,^ and where another wit-
ness, under similar circumstances, corrected an error in his name
as previously written, and added the date.* So under a statute
requiring two witnesses to a will, a will altered after one witness
has signed is not duly proved.^ As the word " presence," men-
tioned in the will act (as distinguished from the statute of
frauds), means not only a bodily, but a mental presence, the
act, so has it been held, will not be satisfied, if either of the wit-
nesses be insane, intoxicated, asleep, or, it would seem, even
blind or inattentive, at the time when the will is signed or
acknowledged.^ Under the New York statute, when witnesses
' Much difficulty arose under this Chodwick v. Palmer, held that the
provision of the will act, which was witnesses need not subscribe the will
obviated by an act passed in 1852, in the presence of each other. Under
under the auspices of Lord St. Leon- the statute of frauds this was clearly
ards, which provides that a signature unnecessary. Jones v. Lake, 2 Atk.
is good which is at the end of a will, 177.
though there be an intervening space, See, as to practice at common law,
or though attesting clauses intervene, supra, § 739.
See Taylor's Evidence, § 971. ' Playne ti. Scriven, 7 Ec. & Mar.
" Taylor's Evidence, § 966; Case- Cas. 122, per Sir H. Fust; 1 Roberts,
menti). Fulton, 5 Moo. P. C. R. 139 ; 772, S. C. See Duffie v. Corridon,
Moore v. King, 3 Curt. 243 ; In re 40 Ga. 122.
Simmonds, Ibid. 79 ; In re Allen, 2 * Hindmarsh v. Charlton, 8 H. of L.
Curt. 331 ; Slack v. Rusteed, 6 Ir. Cas. 160.
Eq. R. (N. S.) 1. But in Faulds o. ^ Charles v. Huber, 78 Penn. St.
Jackson, 6 Ec. & Mar. Cas. Supp. i. ; 448.
and In re Webb, 1 Deane Ec. R. 1, ° Hudson v. Parker, 1 Roberts, 24,
Sir J. Dodson, on the authority of an per Dr. Lushington.
unreported decision of Sir H. Fust, in
127
§ 886.] THK LAW OF EVIDENCE, [BOOK U,
to a will saw no act of signing it by the testator until after they
had signed their own names to it, this was held not a sufficient
attestation of the will.^ And where the name of the testator
(it not being proved by whom written) was entered in the middle
of a sentence in the will, it appearing that he told the witnesses,
before signing, that he had " drawed up " the paper, and he after-
ward wrote his name in another form in another part of the in-
strument, this was held not a sufficient authentication of the
previous signature.^ Under the English Will Act, where the
testator acknowledged a paper to be his will in the presence of
witnesses, but these persons had neither seen him sign it, nor
seen his signature at the time of their subscription, a prayer for-
probate was rejected, though both the witnesses admitted that
they had seen the testator writing the paper, and the will, when
produced, actually bore his signature.^ So far as concerns the
signatures of the witnesses, it has been held that if their signa-
tures were not attached in the testator's room, proof would be
required to show that he was in such a position as to have seen
them write.* On the other hand, where the testator, being in
bed, did not exactly see one of the witnesses sign, in consequence
of a curtain being drawn, but both the witnesses had really signed
in his room, and in each other's presence, the will was admitted
to probate.^ The witnesses, so has this distinction been ex-
plained, are to see the signature made or acknowledged, because
they are subsequently to attest it ; but they are to subscribe the
will in the presence of the testator, chiefly, for the purpose of
formally completing it ; and although they cannot depose to the
signature of the testator being made or acknowledged in their
presence, unless they see the act, they may bear witness to their
subscription in the presence of the testator, though he did not
actually see them sign.^
^ Sisters of Charity of St. Vincent ^ Newton v. Clarke, 2 Curt. 320.
de Paul V. Kelly. Opinion by Fol- But see Tribe v. Tribe, 7 Ec. & Mar.
ger, J., Alb. L. J. Dec. 23, 1876. Cas. 132; 1 Koberts, 775, S. C; In
" Ibid. re KelUck, 34 L. J. Pr. & Mat. 2 ;
' Hudson V. Parker, 1 Roberts, 14, S. C, nom. In re Killick, 8 Swab. &
per Dr. Lushington. But see Smith Trist. 578. See Hayes v. West, 37
V. Smith, 35 L. J. Pr. & Mat. 65; L. Ind. 21 ; and supra, § 939.
R. 1 P. & D. 143, S. C. 6 Hudson v. Parker, 1 Roberts, 35,
* Norton v. Barett, Deane Ec. R. 36, per Dr. Lushington ; Colman, in
259- re, 8 Curt. 118; Neil v. Neil, 1 Leigh, 6.
128
CHAP. XI.] STATUTE OF FRAUDS. [§ 888.
§ 887. Under the statute of frauds (in its original terms), it
is not necessary for the witnesses to have seen the testator sign,
if he acknowledges his signature, directly or inferentially, in
their presence, and declares that the instrument is his will.'
The testator need not be in the same room, if near enough to
hear, or to see the will when signed by the witnesses, if he wish.''
§ 888. In making the acknowledgment,^ it is not necessary
that the testator should actually point out to the witness his
name, and say, " This is my name or my handwriting ; " but if
he states that the whole instrument was written by himself,* or
if he requests the witnesses to put their names underneath his,^
t5r if he intimates by gestures that he has signed the will, and
that he wishes the" witnesses to attest it,® or even, it seems, if he
desires them to sign without stating that the paper is his will,^
this will be a sufficient acknowledgment of his signature, provided
it appears that the signature was affixed, and was seen by the wit-
nesses when they signed at the testator's request. As the stat-
ute requires, not that the will, but that the signature, should be
attested,^ it follows that if the witnesses sign before the testa-
tor the will is void, though the testator immediately afterwards
affixes his signature in their presence.® It is not, however, essen-
1 See Redfield on Wills, 1, 218- ognized in Hott v. Genge, 3 Curt.
220; and see, to same effect, Roberts 174.
V. Welch, 46 Vt. 164; Bagley v. « Gaze u. Gaze, 3 Curt. 451.
Blaokman, 2 Lans.41; Smith v. Smith, ° In re Davies, 2 Roberts, 377.
2 Lans. 266 ; Alpaugh's Will, 23 N. ' Turner v. Cook, 36 Ind. 129 ;
J. Eq. 507; Elau. Edwards, 16 Gray, Keigwin v. Keigwin, 3 Curt. 607;
91 ; Holloway v. Galloway, 51 111. 159. In re Ashmore, Ibid. 758, per Sir H.
See Sprague v. Luther, 8 R. I. 252. Fust ; In re Bosanquet, 2 Roberts. '
For other rulings as to attesting wit- 577; In re Dinmore, Ibid. 641; In re
nosses, see supra, §§ 723-9. Jones, Deane Ec. R. 3. See Faulds
" Right V. Price, Dougl. 241 ; Mc- v. Jackson, 6 Eo. & Mar. Cas. Supp.
Elfresh v. Guard, 32 Ind. 408; Rudden x., per Ld. Brougham; and see, fully,
V. McDonald, 1 Bradf. 352; Moore v. Taylor's Evidence, §§ 967-9.
Moore, 8 Grat. 307; Sturdivant v. ^ Hudson w. Parker, 1 Roberts. 14;'
Brichett, 10 Grat. 67; Brooks v. Duf- Ilott v. Genge, 3 Curt. 175, 181 ; Coun-
field, 23 Ga. 441 ; 1 Redfield on Wills, tess de Zichy Ferraris v. M. of Hert-
246. ford, 3 Curt. 479; In re Summers, 7
'The acknowledgment moy be made Ec. & Mar. Cas. 562; 2 Roberts,
by a blind testator. In re Mullen, 5 295, S. C. ; In re Pearsons, 33 L. J.
I. R. Eq. 309. Pr. & Mat. 177. The text is reduced
* Blake v. Knight, 3 Curt. 563 ; In from Taylor on Evidence, § 967 etseq.
re Cornelius Ryan, 1 Curt. 908, rec- • In re Byrd, 3 Curt. 117; In re
VOL. II. 9 129
§ 889.]
THE LAW OF EVIDENCE.
[book II.
tial that positive affirmative evidence should be given by the
subscribing witnesses, that the testator either signed the will, or
acknowledged his signature to it, in their presence, since the court
may presume due execution under the circumstances.-' The same
presumption applies in the absence or death of the witnesses, or
in the event of their not remembering the facts attendant on the
execution.^
Testator § 889. Under the statute of frauds, which in this re-
™/aralrk, spect is not altered by the Will Act of 1838, the tes-
hL hand tator may have his hand guided by another person,^ or
and^wu- ^^ "^^^ ^^S° ^^ ^^® mark only,* though his name does
nessesmay not appear, Or though a wrong name does by mistake
initials and appear,^ in the body of the will ; ^ and the attesting
additions, witnesses, whether they can write or not, may also sign
Olding, 2 Ibid. 865 ; Cooper v. Bock-
ett,3 Ibid. 648 ; 4 Moo. P. C. R. 419,
S. C. ; and cases cited supra.
1 See Doe b. Davies, 9 Q. B. 650,
per Ld. Denman; Blake v. Knight, 3
Curt. 547, 562. See, also. Beckett v.
Howe, 39 L. J. Pr. & Mat. 1 ; 2 L.
R. P. & D. 1, S. C. ; Olver v. Johns,
39 L. J. Pr. & Mat. 7 ; Kelly v. Keat-
inge, 5 I. R. Eq. 174 ; and see, as to
presumption of regularity, infra, §
1313.
'^ Taylor's Evidence, § 970; supra,
§§ 727, 737 ; Sandilands, in re, L. R.
6 C. P. 411 ; Burgoyne v. Showier, 1
Roberts. 5, per Dr. Lushington; Hitch
V. Wells, 10 Beav. 84 ; In re Leach,
6 Ec. & Mar. Cas. 92, per Sir H.
Fust ; Leech v. Bates, 1 Roberts. 714;
In re Rees, .34 L. J. Pr. & Mat. 56 ;
Brenchley v. Still, 2 Roberts. 162,
175-177; Thomson v. Hall, 2 Ibid.
426 ; In re Holgate, 1 Swab. & Trist.
261 ; Lloyd v. Roberts, 12 Moo. P. C.
R. 158 ; Foot V. Stanton, Deane, Ec.
R. 19; Reeves v. Lindsay, 8 I. R. Eq.
509 ; Vinnicombe v. Butler, 8 Swab.
& Trist. 580, S. C. ; Smith ti. Smith,
L. R. 1 P. & D. 143, S. C. See Croft
V. Croft, 4 Swab. & Trist. 10; and
130
Wright V. Rogers, L. R. 1 P. & D.
678, S. C. See In re Thomas, 1
Swab. & Trist. 255, per Sir C. Cress-
well; Gwillim V. Gwillim, 8 Swab. &
Trist. 200; Trott u. Skidmore, 2 Swab.
& Trist. 12 ; In re Huckvale, 36 L. J.
Pr. & Mat. 84 ; 1 L. R. P. & D. 375,
S. C; Neely v. Neely, 17 Penn. St.
227. But see Pearson v. Pearson, 40
L. J. Pr. & Mat. 53.
» Wilson V. Beddard, 12 Sim. 28.
< Baker v. Dening, 8 A. & E. 94 ; 3
N. & P. 228, S. C. See, to same effect,
Palmer v. Stephens, 1 Denio, 471 ;
supra, § 696. Where a testator has
signed by a mark, no collateral in-
quiry will be allowed as to his capac-
ity to have written his name ; Ibid ;
and no proof is required that the will
was read over to him. Clarke u.
Clarke, 2 I. R. C. L. 395. Sealing a
will is not a sufficient signing. Smith
V. Evans, 1 Wils. 313 ; Grayson v.
Atkinson, 2 Ves. Sen. 459. As to
proof of mark generally, see supra,
§ 696. So as to text, Taylor, § 974.
' In re Douce, 2 Swab. & Trist.
593 ; In re Clarke, 1 Swab. & Trist.
22.
' In re Bryce, 2 Curt. 325.
CHAP. XI.]
STATUTE OF FRAUDS.
[§ 890.
as marksmen ; ^ and if one of them can neither read nor write,
he may still sign his name by having his hand guided by the
other.2 It has even been held sufficient for witnesses to sub-
scribe the will by their initials.^ Under the statute of frauds,
as well as by the will act, it has been held sufficient if any
person, even though he be one of the two attesting witnesses,
write,* or even stamp,^ the testator's signature by his direction.®
The witnesses, however, must attest the will, either by their
own signatures or their marks.'
§ 890. A will, as is the case with other documents under the
statute of frauds, when imperfect in itself may, by Imperfect
' _ -t J T J ^iii may
clear reference to it as an existins; document,^ be so be com-
pleted by
identified with an instrument validly executed as to reference
form part of it ; and if this be the case, the defect of documeSf
authentication arising from such paper being unattested or unex-
1 In re Amiss, 2 Roberts. 116. But
an attesting witness cannot subscribe a
will in another person's name. Pryor
V. Pryor, 29 L. J. Pr. & Mat. 1 14.
2 Harrison v. Elvin, 3 Q. B. 117;
In re Lewis, 31 L. J. Pr. & Mat. 153;
In re Frith, 1 Swab. & Trist. 8, S.
C; Lewis v. Lewis, 2 Swab. & Trist.
153; Roberts v. Phillips, 4 E. & B.
450.
8 Taylor, § 974 ; In re Christian, 7
Ec. & Mar. Cas. 265, per Sir H. Fust;
2 Roberts. 110, 5. C. See In re Tre-
vanion, 2 Roberts. 311; Charlton v.
Hindmarsh, 1 Swab. & Trist. 433 ; S.
C. 28 L. J. Pr. & Mat. 132 ; S. C. at
Nisi Prius, 1 Fost. & Fin. 540 ; S. C.
nom.' Hindmarsh v. Charlton, 8 H. of
L. Cas. 160. See, too, in re Sperling,
33 L. J. Pr. & Mat. 25, where a wit-
ness, instead of signing his name, wrote
"servant to M. S.," and this was
held sufficient. 3 Swab. & Trist. 272,
S.C.
* Smith V. Harris, 1 Roberts. 272 ;
In re Bailey, 1 Curt. 914.
' Jenkins v. Gaisford, 32 L. J. Pr.
&Mat. 122 ; 3 Swab. & Trist. 93, S.
C. See Bennett u.Brumfitt, 37 L. J.
C. P. 26 ; 2 Law Rep. C. P. 28,
S.C.
' It has been even held sufficient
where the scrivener, at the testator's
request to sign for him, signed his own
name instead of the testator's. In re
Clark, 2 Curt. 329. See, also, In re
Blair, 6 Ec. & Mar. Cas. 528.
' In re Cope, 2 Roberts. 335; In re
Duggins, 39 L. J. Pr. & Mat. 24; Tay-
lor, § 974.
' Dickinson i>. Stidolph, 11 Cora. B.
N. S. 341; Van Straubenzee v. Monck,
3 Swab. & Trist. 6 ; In re Greves,
1 Swab. & Trist. 250 ; Allen v. Mad-
dock, 11 Moo. P. C. R. 427; In re Al-
mosnino, 1 Swab. & Trist. 508 ; In re
Brewis, 3 Swab. & Trist. 473; In re
Luke, 34 L. J. Pr. & Mat. 105 ; In re
Lady Truro, 35 L. J. Pr. & Mat. 89 ;
L. Rep. 1 P. & D. 201, S. C; In re
Sunderland, 35 L. J. Pr. & Mat. 82 ;
Law Rep. 1 P. & D. 198, S. C. ; In
re Watkins, 35 L. J. Pr. & Mat. 14 ;
Law Rep. 1 P. & D. 19, S. C. ; In re
Dallow, 35 L. J. Pr. & Mat. 81 ; Law
Rep. 1 P. & D. 189, S. C. ; Taylor, §§
975, 1083 ; and as to cases of such in-
corporation, see supra, § 872.
131
j 891.J THE LAW OF EVIDENCE. [BOOK II.
ecuted will be cured.^ Hence unattested wills and codicils have
been confirmed by subsequent attested codicils.^ Parol evidence
may be received to explain irregularities as to attestation.^
§ 891. To set forth the statutes and adjudications of the sev-
eral United States, in relation to the revocation of
Revocation . -ii .
cannot or- wills, belongs more properly to treatises on wills. As
prove/b/ bearing, however, upon the general question of statu-
^"°^' tory limitations of proof, it may be proper here to
notice the provisions of the statute of frauds in respect to tes-
tamentary revocations, together with the leading rulings under
that statute both in England and in the United States. By
the statute of frauds (as amended by the English Will Act of
1838), " No will shall be revoked by any presumption of an in-
tention, on the ground of an alteration in circumstances ; " and
" No will, or codicil, or any part thereof, shall be revoked other-
wise than as aforesaid (by marriage), or by another will or
codicil executed in manner hereinbefore required, or by some
writing declaring an intention to revoke the same,* and executed
in the manner in which a will is hereinbefore required to be ex-
ecuted, or by the burning, tearing, or otherwise destroying the
same by the testator, or by some person in his presence, and by
his direction, with the intention of revoking the same." By the
statute of frauds, revocation is to be exclusively proved by a
subsequent inconsistent will or codicil, or by a written revoca-
tion in the presence of three witnesses, or by burning, tearing,
cancelling or obliterating by the testator, or in his presence and
by his direction and consent. We may therefore cite the rulings
' Countess de Zichy Ferraris v. M. Doe v. Evans, 1 C. & M. 42 ; 3 Tyr.
of Hertford, 3 Curt. 493, per Sir H. 56, S. C. ; Allen v. Haddock, 11 Moo.
Fust; In re Lady Durliam, Ibid. 57 ; P. C. K. 427. See in re AUnutt, S3
In re Dickins, Ibid. 60; In re Wilier- L. J. Pr. & Mat. 86. See, also, An-
ford, Ibid. 77; Habergham v. Vin- derson r. Anderson, L. R. 13 Eq. 381.
cent, 2 Ves. 204 ; In re Edwards, 6 See supra, § 872.
Ee. & Mar. Cas. 306 ; In re Ash, ' Devecmon v. Devecmon, 43 Md.
Deane Ec. R. 181 ; In re Lady Pern- 335.
broke, Ibid. 182 ; In re Stewart, 3 * See De Pontfes v. Kendall, 31 L.
Swab. & Trist. 192; 4 Swab. & Trist. J. Ch. 185, per Romilly, M. R. See
211 ; WikofE'g App. 15 Penn. St. 281. Hicks, re, 38 L. J. Pr. & Mat. 65 ; 1
' Aaron v. Aaron, 3 De Gex & Sm. La^r Rep. P. & D. 683, S. C. ; Fraser,
475 ; Utterton v. Robins, 1 A. & E. re, 2 Law Rep. P. & D. 40 ; 39 L. J.
423 ; Gordon v. Ld. Reay, 5 Sim. 274; Pr. & Mat. 20, S. C.
132
CHAP. XI.] STATUTE OF FRAUDS. [§ 894.
under the will act, so far as concerns a common subject matter
of interpretation, in connection with the rulings under the stat-
ute of frauds.^
§ 892. No revocation clause is needed to revoke a former will
by a later one. Hence a will duly executed, by which „
•' . , "' *' Bevocation
the testator disposes of his whole property, revokes all by subse-
previous wills. A revocation has been held to be
worked by a paper containing no appointment of executors,^
even where such paper had to be proved by parol.^ It must,
however, be kept in mind, as a fundamental principle, that a
former will cannot be revoked by one of later date, unless the
later instrument contains a clause of express revocation, or un-
less the two vsdlls are incapable of standing together.*
§ 893. When the contention is that the testator directed his
will to be destroyed by another, it is essential to the .
admissibility of proof of destruction, under the statute, admissible
that it should be of a destruction in the testator's pres- struction
ence ; and it follows, therefore, that he has no power "ator's **'"
to make his will contingent, by giving authority even P«sence.
by the will itself to any person to destroy it after his death.^
§ 894. Revocation will not be complete, unless the act of spo-
liation be deliberately effected on the document, animo ^.^ revooa-
revocandi.^ This is expressly rendered necessary by tion.inten-
the will act,'^ and is impliedly required by the stat- uisite, and
ute of frauds.^ It is further clear, that the burden oncontes-
of showing that a once valid will has been revoked by *°'°'"
1 Taylor, § 981, citing In re Cun- * Taylor's Evidence, § 981 ; Stod-
ningham, 29 L. J. Pr. & Mat. 71 ; 4 dart v. Grant, 1 Macq. Sc. Cas. H. of
Swab. & Trist. 194, S. C. L. 163. See In re Graham, 3 Swab.
' Henfrey V. Henfrey, 4 Moo. P. C. & Trist. 69; Lemage v. Goodban, 1
R. 29 ; 2 Curt. 468, S. C, in court be- Law Rep. P. & D. 57; In re Fenwick,
low. See, as sustaining a revocation 1 Law Kep. P. & D. 319; Geaves w.
by a subsequent will only partially in- Price, 3 Swab. & Trist. 71 ; Birks v.
consistent, Plenty v. West, 1 Roberts. Birks, 4 Swab. & Trist. 23.
264; S. C. in Ch. before Romilly, M. « Stockwell v. Ritherdon, 6 Ec. &
R. 22 L. J. Ch. 185. Mar. Cas. 409, 414, per Sir H. Fust.
' Haward v. Davis, 2 Binn. 406
Jones V. Murphy, 8 Watts & S. 275
Day V. Day, 2 Green Ch. (N. J.) 549
° See In re Cockayne, Deane Ec.
R. 177 ; Clark v. Smith, 34 Barb. 140 ;
Griswold, ex parte, 15 Abb. Pr. 299.
Legare v. Ashe, 1 Bay, 464. See Nel- ' Taylor's Evid. § 980.'
son V. McGiffert, 3 Barb. Ch. 158. » Bibb v. Thomas, 2 W. Bl. 1044.
133
§ 896.] THE LAW OP EVIDENCE. [BOOK H.
mutilation, will lie upon the party who undertakes to prove the
revocation.^
Contempo- R 895. Declarations of the testator, accompanying the
raneous "^ i i
deciaia- act of Spoliation (though not such as are subsequently
missibie' made) ,2 will be admissible to explain his intent.^
§ 896. In a leading case under the statute of frauds, the tes-
tator, having given the will " something of a rip with
acTmust^ his hands, and having torn it so as almost to tear a bit
cateVnai- *^^'" rumpled it up and threw it into the fire, when a
ity of in- bystander saved it without his knowledge, before, as it
tention. •' . 6 ' '
seems, it was at all burnt, the court held the revocation
was complete.* But where a testator, being angry with the
devisee, began to tear his will, and had actually torn it into four
pieces before he was pacified ; but afterwards he fitted together,
and put by the several pieces, saying he was glad it was no
worse ; the court refused to disturb a verdict by which the jury
had found that the act of cancellation was incomplete, as the tes-
tator, had he not been stopped, would have gone further in the
process of destruction.^ The cutting out the signature by the
testator has been held to effect a revocation of the will, if not
Under the word " tearing," at least under the terms " or other-
wise destroying the same."* The erasure by the testator of his
own signature, or that of the witnesses, has the same effect, if
shown to have been done animo revooandi.'' Even the act of
1 Harris v. Berrall, 1 Swab. & Trist. ° Clarke v. Scripps, 2 Roberts. 568;
153; Benson u. Benson, Law Rep. 2 Richards v. Muniford, 2 Phillimore,
P. & D. 172. 23 ; Card v. Grinman, 5 Conn. 164.
2 Staines v. Stewart, 2 Swab. & * Bibb v. Thomas, 2 W. Bl. 1043.
Trist. 320; Jackson v. Knififen, 2 See Doe v. Harris, 6 A. & E. 215, for
Johns. 31; Waterman v. Whitney, 1 questioning comments by Ld. Den-
Kern. 157 ; Forman's Will, 54 Barb. man. And see Card v. Grinman, 5
274; Kirkpatrick, in re, 22 N.J. Conn. 164 ; White t). Casten, 1 Jones
JEq. 463; Boudinot U.Bradford, 2 L. 197; Pryor u. Coggin, 17 Ga. 444;
Yeates, 170; Smith v. Dolby, 4 Har- Mundy v. Mundy, 15 N. J. Eq. 290.
ring. 350 ; Dawson u. Smith, 3 Houst. ' Doe v. Perkes, 8 B. & A. 489 ;
335; Devecmon v. Devecmon, 43 Md. Elms v. Elms, 1 Swab. & Trist. 1.''5;
835; Beaumont v. Keim, 50 Mo. 28. Youse v. Forman, 5 Bush, 337. Infra,
See, however. Card v. Grinman, 6 § 900.
Conn. 164 ; Wolf v. Bollinger, 62 111. ° Hobbs u. Knight, 1 Curt. 768.
868; White v. Casten, 1 Jones L. (N. ' Hobbs v. Knight, 1 Curt. 780;
C.) 197; Youse v. Forman, 5 Bush, Evans v. Dallow, 31 L. J. P. & M.
837 ; Rodgers v. Rodgers, 6 Heisk. 489. 128 ; Harris, in re, 13 Sw. & Tr. 485.
134
CHAP. XI.] STATUTE OF FRAUDS. [§ 899,
tearing off the seal from a will, which had needlessly been exe-
cuted as a sealed instrument, has been deemed a revocation.^
Where, however, a will was found in a mutilated state, being
both torn and cut, but the signatures of the testator and the at-
testing witnesses remained uninjured, the court, guided by the
peculiar nature of the mutilations, held, in the absence of any
extrinsic evidence, that the instrument was not revoked.^
§ 897. The will act omits the term cancellation in its enu-
meration of the modes of destroying wills,^ but under so of can-
the statute, as well as at common law, any effective, in- anrt''of'ob-
tentional cancellation by the testator, destroys the efii- '''^ration,
ciency of a will.* It has been already seen, that in the absence
of any direct evidence the law will presume that any alteration
or erasure in a will was made after its execution.^
§ 898. Under the will act, as well as under the statute of
frauds, the animus revocandi is indispensable. Hence, where a
testator had erased the amount of a legacy, and had inserted a
smaller sum, but the alteration took no effect, as it had not been
duly executed, the court decreed probate of the will in its orig-
inal form, since it was clear that the testator intended only a
substitution, and not a revocation, of the bequests altered.^
§ 899. When doubt exists as to whether a will which is not to
be found was destroyed, it is admissible to introduce -p^^^^ g^j.
declarations of the testator to show that the destruc- ^^sfbre'to
tion was intended by him.' So such evidence has been show that
1 Price V. Powell, 3 H. & N. 341 ; Cas. 685, S. C. ; Greville v. Tylee,
S. C. nom. Price v. Price, 27 L. J. Ex. 7 Moo. P. C. R. 320.
409. See, also, Williams v. Tyley, 1 » Brooke v. Kent, 3 Moo. P. C. R.
V. John. 530; In re Harris, 33 L. J. 334, 349, 350; Burtenshaw v. Gilbert,
Pr. & Mat. 181 ; 3 Swab. & Trist.485, 1 Cowp. 52, per Ld. Mansfield; Onions
S. C. V. Tyrer, 1 P. Wms. 343; In re Cock-
2 Clarke v. Scripps, 2 Roberts. 563, ayne, Deane Ec. R. 177; In re Parr,
per Sir J. Dodson; In re Woodward, 29 L. J. Pr. & Mat. 70; In re Harris,
2 Law Rep. P. & D. 206 ; 40 L. J. Pr. Ibid. 79; 1 Swab. & Trist. 536, S. C;
& Mat. 17, S. C. In re Middleton, 34 L. J. Pr. & Mat.
» Taylor, § 984. See In re Brew- 16; 3 Swab. & Trist. 583, ,S. C. See
Bter, 29 L. J. Pr. & Mat. 69. Taylor's Ev. § 985. See Rawlins v.
* See supra, §630; Townley U.Wat- Rickards, 28 Beav. 370; Ibbott w.
son, 3 Curt. 761, 764, 768, 769 ; 3 Ec. Bell, 34 Beav. 395; Quinn v. Butler,
& Mar. Ca.s. 17, S. C. 6 Law Rep. Eq. 225.
o Supra, § 630; Cooper v. Bockett, ' Laxley v. Jackson, 3 Phillips Ec.
4 Moo. P. C. R. 419; 4 Ec. & Mar. 128; Richards n. Mumtord, 2 Philli-
135
§ 900.] THE LAW OP EVIDENCE. [BOOK II.
the de- received to show that a will, produced as a testator's
of will was last will, had been fraudulently secreted by parties
or that its ' interested, after he had believed it to have been de-
wasbT'''" stroyed.i But ordinarily a will, proved to have once
te^slato''' existed, but not found at the testator's death, is pre-
sumed to have been destroyed by him.^
§ 900. The cancellation of a will does not necessarily involve
Parol evi- its revocation. " The cancelling itself is an equivo-
^^sfbfe^to ^^^ ^'^^^ ^°'^' ^^ order to operate as a revocation, must
explain ^g doue animo revocandi. A will, therefore, cancelled
tion. through accident or mistake, is not revoked."^ It
has accordingly been held that parol evidence is admissible to
show that the tearing of a will in pieces by a testator was not
meant by him as a revocation.* Even where a testator, under
the false impression that his will was invalid, tore it up, but
afterwards collected the pieces, and placed them among his
valuable papers, it was held, that as the tearing was not done
with the intention of revoking a valid will, the will, as thus
restored, was to be admitted to probate.^ So when a testator
was shown to have torn a will to pieces in an attack of de-
lirium tremens, evidence was admitted to show that he after-
wards declared that the will was torn when he was mad ; and
the will was consequently admitted to probate.^ To" the same
general effect is a ruling of Appleton, C. J., Kent, Barrows, and
Tapley, JJ., in Maine, in 1870, as against Cutting, Walton,
more, 23; Dan v. Brown, 4 Cow. S. C. 22 Eng. L. & Eq. 627; Elms
490. V. Elms, 1 Sw. & Tr. 155; Benson ».
^ Card V. Grinman, 5 Conn. 164. Benson, 2 Prob. & D. 172; Giles u.
See Bill V. Thomas, 2 W. Bl. 1043. Warren, 2 Prob. & D. 401 ; Wolf v.
" Newell u. Homer, 120 Mass. 277, Bollinger, 62 111. 368; Beaumont v.
citing Davis v. Sigourney, 8 Met. 487; Keim, 50 Mo. 28; Dawson v. Smith,
Brown V. Brown, 8 E. & B. 876 ; Eek- 3 Ploust. (Del.) 335. See Swinton v.
ersly w. Piatt, L. R. 1 P. '& D. 281; Bailey, L. R. 1 Ex. D. 110 (1876).
Finch V. Finch, L. R. 1 P. & D. So a destruction under duress will be
871.; S. P., Betts v. Brown, 6 Wend. void. Batten v. Watson, 13 Ga. 63.
173; Bulkley M.Redmond, 2 Brad. 281. ^ Giles i'. Warren, 2 Prob. & D.
= Nichol, J., in Thynne v. Stanhope, 401 (1872).
1 Addams, 52, citing Lord Mansfield, « Brunt v. Brunt, 3 Prob. & D. 37
in Burtonshaw v. Gilbert, Cowp. 52. (1873). See Sprigge v. Sprigge, 1
* Doe V. Perkes, 3 B. & A. 489; Prob. & D. 608; Form an 's Will, 54
Colberg, in re, 2 Curteis, 832; Clarke Barb. 274 ; S. C.l Tuck. N. Y. 205;
V. Soripps, 2 Roberts. Ecc. R. 568 ; Sisson v. Conger, 1 Thomp. & C. (N.
136 y.) 564.
CHAP. XI.J STATUTE OF FRAUDS. [§ 901.
Dickerson, and Danforth, JJ., that where a will, made in 1854,
and presented for probate soon after the testator's death in 1863,
appeared to have been torn in fragments and then pasted to-
gether, parol evidence was admissible to show that the pasting
together was done by himself for the purpose of establishing the
will as his own.^ So the declarations of a testator have been ad-
mitted to show that the mutilation of a will was not by his act ;
or was recalled by him.^ But the proof of the intent to restore
and finally to adopt the will must be clear.^ So far as concerns
the revival of a will already solemnly and effectively revoked,
proof of reexecution is now necessary in England by the will
act.*
Tin. EQUITABLE MODIFICATIONS OF STATUTE.
§ 901. As we shall hereafter have occasion to see more fully,
while parol evidence is admissible to clear ambiguities Parol evi-
in written contracts, so as to explain what they really admissible
are, it cannot be received, as between the parties to ^rftten
such contracts, to vary their terms.^ The rule is com- un^e™"'
mon to all jurisprudences, nor is it in any sense ex- statute.
tended by the statute of frauds. That statute does not, on the
one hand, preclude the admission of parol evidence to explain the
meaning of a doubtful document ; and indeed, until we know
what a writing is, there is nothing on which the statute can
operate. On the other hand, the statute adds nothing to the
common law rule directing the exclusion of evidence varying the
contents of written instruments. At the same time, while the
1 Colagan v. Burns, 57 Me. 449. « TJsticke v. Rawden, 2 Add. 125 ;
As against the admissibility of the James w. Cohen, 3 Curt. 782; Belli),
evidence were cited Shailer y. Bum- Fothergill, L. R. 2 Pr. & Div. ,148;
stead, 99 Mass. 112; Comstoek v. Had- White, in re, 25 N. J. Eq. 501 ; Ha-
lyme, 8 Conn. 254; "Waterman W.Whit- ward v. Davis, 2 Binn. 406; Jones
ney, 11 N. Y. 157; Durant v. Ash- v. Hartley, 2 Whart. 103; Wallace v.
more, 2 Richards. 184. Blair, 1 Grant (Penn.), 75.
2 Whiteley v. King, 17 C. B. N. S. * Taylor's Ev. § 98G, citing Barker,
756; 10 Jur. N. S. 1079; Bulkley v. in re, 7 Ec. & Mar. Cas. 44; Roberts
Redmond, 2 Brad. Sur. 284; Smock v. Roberts, 2 Sw. & Tr. 337; Rogers
V. Smock, 3 Stoekt. 157; Youndt v. v. Goodenough, 2 Sw. & Tr. 342 ;
Yqundt, 3 Grant (Penn.), 140 ; Law- Steel & May, in re, L. R. 1 P. & D.
yer v. Smith, 8 Mich. 412; Steele v. 575; Noble v. Phelps, L. R. 2 P. &
Price, 5 B. Mon. 58; Tynan v. Pas- D. 276.
chal, 27 Tex. 286, and cases cited « Infra, § 920 ef seg.
supra, § 896.
137
§ 901.J THE LAW OF EVIDENCE. [BOOK D.
rule is not derived from the statute, the statute gives an addi-
tional reason why the rule should be honestly enforced. To
vary by parol the terms of a document may often be a fraud
on the parties. To empty a document, sheltered by the statute,
of its substance, and to insert other conditions not sanctioned
by the law, would always be a fraud on the state. Hence it
is that the courts, in all cases in which the relations of the
statute to parol evidence have come up, have united in hold-
ing that when a contract has been executed in conformity with
the statute, such contract cannot be varied, as to its substance,
by parol.^ Where, for instance, a written contract contains a
series of conditions, some in conformity with the statute, and
others not, an oral agreement to vary the latter in even some
trifling particular, as, for instance, to have one valuer instead
of two, cannot be received in evidence, though that part of
the contract might, of itself, have been sustained on mere oral
proof.^ Where a master, to take another English illustration,
contracted by letter to pay his clerk a yearly salary, and the
contract was necessarily in writing, being one which would
not be performed within a year from its date, parol evidence
was held to be inadmissible, when tendered to show either a
» Noble V. "Ward, 35 L. J. Ex. 81; 326 ; Riley v. Farnsworth, 116 Mass.
L. K. 1 Ex. 117; and 4 H. & C. 149, 223; Abecl v. EadcIifF, 13 Johns. 297;
S. C; 36 L. J. Ex. 91, S. C. in Ex. Blood v. Goodrich, 9 Wendell, 68 ;
Ch. I L. R. 2 Ex. 135, S. C. ; Evans Thayer v. Rock, 13 Wend. 53; North-
V. Roe, L. R. 7 C. P. 138; Boydell rup v. Jackson, 13 Wend. 85 ; Coles
V. Drummond, 11 East, 142; S. C. 2 r. Bowne, 10 Paige, 526; Dow w. Way,
Camp. 163 ; Cox u. Middleton, 2 Drew. 64 Barb. 255 ; Dung v. Parker, 62 N.
209; Caddiok v. Skedmore, 2 De Gex Y. 494 (reversing & C. 8 Daly, 89);
& J. 56 ; Ridgway v. Wharton, 3 De Baltzen u. Nicolay, 53 N. Y. 467 ; Rice
Gex, M. & G. 677; Chinnock v. Ely, v. Manley, 2 Hun, 492 (overruling
2 Hem. &M. 220; Fitzmaurice v. Bay- Benton v. Pratt, 2 Wend. 385) ; 0'-
ley, 8 E. & B. 664; Clarke v. Fuller, Donnell v. Brehen, 3G N. J. L. 267;
16 C. B. N. S. 24; Dolling v. Evans, Musselman v. Stoner, 31 Penn. St. 265;
36 L. J. Ch. 474; Nesham v. Selby, Com. v. Kreager, 78 Penn. St. 477;
L. R. 13 Eq. 191 ; Miles v. Roberts, 84 Robinson v. McNeill, 51 111. 225 ; Frank
N. H. 245; Lang i;. Henry, 54 N. H. 57; i>. Miller, 38 Md. 450 ; Lecroy c. Wig-
Dana u. Hancock, 30 Vt. 616 ; Cum- gins, 81 Ala. 13; McGuire v. Stevens,
mings V. Arnold, 3 Mete. (Mass.) 486; 42 Miss. 724 ; Delventhal v. Jones, 53
Morton v. Deane, IS Mete. (Mass.) Mo. 460; Johnson t>. Kellogg, 7 Uelsk.
885; Ryan v. Hall, 13 Mete. (Mass.) 262.
520; Lerned v. Wannemaoher, 9 Al- ^ Harvey v. Grabham, 5 A. & E.
len, 418; Whittier v. Dana, 10 Allen, 61, 74 ; 6 N. & M. 164.
138
CHAP. XI.]
STATUTE OF FRAUDS.
[§.902.
contemporaneous, or a subsequent, oral agreement that the
salary should be paid quarterly, or to prove the fact that
quarterly payments had usually been made.^ And in the lead-
ing case on this topic, where a vendor had contracted in writ-
ing to sell to a purchaser certain lots of land, and to make out
a good title to them, the court held, that, in an action for the
purchase money, the vendor was not at liberty to show an oral
waiver by the purchaser of his right to a good title as to one
lot.2 The parties may be identified by parol ;^ the property
described may be so explained ; * other ambiguities may be
cleared by parol ; ^ dates may be fixed by parol ; ^ plans or sched-
ules may be attached to the contract by parol ; '' the relations of
the parties may be explained by parol ; ^ ordinary formal inci-
dents may be attached ; ^ the time of execution may be ex-
tended ; ^^ but parol proof cannot be received to alter the
terms of which the contract consists.
§ 902. It is here that we strike at the distinctive effect, already
incidentally noticed, of the statute of frauds, in this J^"^°'^"j,°„°"
particular relation. Aside from the statute, one parol not be sub-
, 11.-,,. 1 , ^ stitutedfor
agreement can be substituted for another by consent, written,
and parol is admissible to prove such substitution.^^ statute.
1 Giraud v. Richmond, 4 C. B. 835.
See, also, Evans v. Koe, L. R. 7 C.
P. 138.
2 Goss V. Nugent, 5 B. & Ad. 58;
2 N. & M. 28.
° See cases cite^ § 949; and see
Slater w. Smith, 117 Mass. 96.
* Infra, § 942; thus parol evidence
was received to explain the words " a
house in Church Street." Meed v.
Parker, 115 Mass. 413.
5 See fully § 937; and see Waldron
V. Jacob, Irish R. 5 Eq. 131, where
parol evidence was admitted to show
the meaning of the words " this
place."
' See infra, § 977 ; and see, also,
Edmunds d. Downs, 2 C. & M. 457;
Hartley v. Wharton, 11 A. & E. 934;
Lobb V. Stanley, 5 Q. B. 574.
' Horsfall v. Hodges, 2 Coop. 114.
8 Infra, §§ 949-955 ; Salmon Falls
Co. V. Goddard, 14 How. 446 ; Pea-
body V. Speyers, 56 N. Y. 230 ; and
see Sweet v. Lee, 3 M. & Gr. 466, per
Tindal, C. J. ; though see Grant v.
Naylor, 4 Cranch, 224.
' Barry v. Coombe, 1 Peters, 650.
" Infra, § 1026. Stearns v. Hall, 9
Cush. 31; Stone v. Sprague, 20 Barb.
509. In England, however, it has been
held inadmissible to vary the contract
orally by substituting another day of
performance. Stowell v. Robinson, 3
Bing. N. C. 928; Marshall v. Lynn, 6
M. & W. 109 ; Stead v. Dawber, 10 A.
& E. 57 ; 2 P. & D. 447, 5. C, overrul-
ing Cuff V. Penn, 1 M. & Sel. 21 ; War-
ren V. Stagg, cited in Littler v. Hol-
land, 3 T. R. 591, and Thresh v. Rake,
1 Esp. 53. See Ogle v. Ld. Vane, L.
R. 2 Q.B. 275; 7 B. & S. 855, S. C;
affd in Ex. Ch. ; L. R. 3 Q. B. 272.
" See infra, §1017.
139
§ 902.] THE LAW OF EVIDKNCE. [BOOK II.
"When, however, a statute says, " Such a contract shall be exe-
cuted in a particular way, or it shall not have force," then it
is a fraud on the state, as well as a possible fraud upon the
parties, to use the form of a contract so sanctioned to cover an
agreement the statute prohibits. Hence it has been held, under
the statute, that no action can be sustained on a case in which
the plaintiff declares specifically on an alleged parol variation of
a written agreement.^ It is^ot necessary, indeed, that all the
details of a contract should be written ; and many matters of in-
difference may be supplied by parol. But, ordinarily, if a stipu-
lation is important enough to the parties to be put in writing, it
is important enough to be brought under the operation of the
rule announced.^ It has also been held that where a defendant
is shown to have orally agreed to do two or more things, one of
which is without and the other of which is within the statute of
frauds, the plaintiff cannot recover upon the whole engagement,
if his declaration has been framed on the whole, on the hypothe-
sis of the several conditions embraced in the agreement being
inter-dependent.* It should at the same time be kept in mind,
that were the conditions independent and severable, then the
fact that one is by the statute put out of court does not preclude
suit from being brought on the other.* The same conclusion re-
sults where one of the conditions is severed from the other by
being part performed.^
1 Goss V. Nugent, 2 Nev. & M. 33; Leeder, 1 B. & C. 327; Thomas v.
5 B. & A. 65 ; Harvey v. Grabham, 5 Williams, 10 B. ^ C. 664; Wood v.
Ad. & E. 61 ; Stead v. Dawber, 10 Ad. Benson, 12 Cro. & J. 94; Meehelen v.
6 E. 57; Marshall v. Lynn, 6 M. & Wallace, 7 A. & E. 49; Vaughanw.
W. 109; Noble v. Ward, L. R. 1 Hancock, 3 M., Gr. & S. 766; Irvine
Exch. 117 ; Ogle v. Lord Vane, L. R. v. Stone, 6 Cush. 508 ; Rand v. Ma-
3 Q. B. 272 ; Dana v. Hancock, 30 Vt. ther, 11 Cush. 1; Crawford v. Morrell,
618; Cummings v. Arnold, 3 Mete. 8 Johns. 253; Duncan v. Blair, 5 De-
486 ; Stearns u. Hall, 9 Cush. 35 ; nio, 196; Dock v. Hart, 7 Watts & S.
Whittieru. Dana, 10 Allen, 326; Blood 172; Alexander v. Ghiselin, 5 Gill,
V. Goodrich, 9 Wend. 68; Bryan v. 138 ; Noyes v. Humphreys, 11 Grat.
Hunt, 4 Sneed, 543. Cuffu. Penn, 1 636.
Maule & S. 21, is virtually overruled * Mayfield v. Wadsly, 3 B. & C.
by subsequent English cases. 857; Wood v. Benson, 2 Tyrw. 93;
" See observations of Parke, B., in Pierce v. Woodward, 6 Pick. 206 ; Mo-
Marshall V. Lynn, 6 M. & W. 109. bile Ins. Co. v. McMillan, 31 Ala. 720.
• Browne on Frauds, §420; Cooke ' Page «. Monks, 5 Gray, 492;
V. Tombs, 2 Anst. 420 ; Biddell v. Trowbridge v. Wetherbee, 11 Allen,
140
CHAP. XI.J
STATUTE OF FRAUDS.
[§ 904.
§ 903. Hereafter it will be more fully seen that it is competent
to prove by parol that a conTeyance, on its face abso- con^ey.
lute, is virtually in trust either for the grantor or for a ance may
_ •' P . . "" shown
third party ; ^ and that a conveyance in fee simple is by parol to
really but a mortgage.^ It may be here added that it is or in mort-
now conceded that such a trust may be decreed in the ^*^^'
teeth of a sworn answer of the trustee denying the trust.^ On
the other hand, parol evidence is admissible to repel the implica-
tion of a trust from letters and other written proof.* Even put-
ting aside the position that the statute of frauds is not to be
used to perpetrate fraud, the statute expressly excludes from its
effect terms of this class.^
In Pennsylvania, it should be added, prior to 1856, parol ex-
press trusts were valid.^ The rule '> is the same in North Car-
olina, Virginia, Texas, and was so in Mississippi prior to the
Revised Code. In Pennsylvania, since 1866, parol express trusts
are invalid.* Trusts ex malefieio and implied trusts are not
within the Act of 1856.9
§ 904. It does not follow that because no action can be specif-
ically maintained, under the statute of frauds, on a pgrform-
written contract ma-teriaily amended by parol, a party ""^"^^i^^g
who has performed, or is in readiness to perform his to perform
part of the amended contract is without his remedy, tract as
He cannot sue upon the amended contract, because, on
364 ; Hess v. Fox, 10 "Wend. 436 ;
Dock V. Hart, 7 Watts & S. 172.
1 Infra, §§ 1033-1035.
a Infra, § 1031, 1034.
» Baker v. Vining, 30 Me. 121 ;
Page V. Page, 8 N. H. 187; Boyd v.
McLean, 1 Johns. Ch. 582 ; Faringer
■«. Ramsay, 2 Md. 365 ; Larkins v.
E^iodes, 5 Port. 195.
* ^teero v. Steere, 5 Johns. Ch. 1.
* See authorities, infra, § 1034 ;
Norton V. Mallory, 63 N. Y. 434.
« Murphy v. Hubert, 7 Pa. St. 420 ;
Freeman v. Freeman, 2 Pars. Eq. 85 ;
Williard v. Williard, 56 Pa. St. 124.
See, however, Wither's Appeal, 14 S.
& R. 185, and Meason v. Kaine, 63
Pa. St. 339.
' See Reed's Cases on Statute of
Frauds.
" Barnet u. Dougherty, 32 Pa. St.
371.
» Church V. Ruland, 64 Pa. St. 442.
As to the construction of the 6ih sec-
tion of Act of 22d April, 1856, limiting
tlie time in which trusts implied, &c.,
can be asserted, see Clark v. Trin-
dle, 52 Pa. St. 495; Best v. Campbell,
62 Pa. St. 478; Williard v. Williard,
supra ; Church v. Ruland, supra.
Equitable mortgages by deposit of
title-deeds, have never been counte-
nanced in Pennsylvania. Rickert v.
Madeira, 1 Rawle, 325 ; Shitz v, Diet-
fenbach, 3 Pa. St. 233 ; Bowers v.
Oyster, 3 Pa. Rep. (P. & W.) 239.
141
§ 905.J THE LAW OF EVIDENCE. [BOOK II.
may be gych contract, Under the statute of frauds, no action can
proved by ' , .
way of ao- be maintained. But he may make out such a case m
satisfac- equity as will induce a chancellor to grant relief on
*"*"■ the terms hereafter stated.^ Or where the opposing
party sues at common law, on the original contract, he may be
met by proof to the effect that the parties had agreed between
themselves by parol that the contract should be executed in a
particular way, and that it had either been so executed, or that
the defendant was ready to execute it.^ If, on the other hand,
in case of the aggrieved party in such case bringing suit, the de-
fendant should set up performance according to the terms of the
written contract, then the converse of the rule applies, and the
plaintiff is at liberty to prove that by parol the parties had
agreed to a new mode of performance with which the defendant
had not complied ; the plaintiff also averring that he was ready
to have performed the written contract according to its terms,
but that this was dispensed with by the oral agreement.^ So it
may in like manner be proved that damages for non-performance
were waived or remitted.*
§ 905. We will hereafter examine at large the circumstances
Contract under which equity will order a contract to be reformed
may be re- gQ ^s to express the true understanding of the parties.^
formed on ... or
above con- At present it is sufficient to say that when the proposed
reformation of an instrument involves the specific per-
formance of an oral agreement within the statute of frauds, or
when the terms sought to be added would so modify the instru-
ment as to make it operate to convey an interest or secure a right
which can only be conveyed or secured through an instrument
1 See supra for other cases, § 856 ; » Infra, § 909 ; Thresh c. Rake, 1
and see, particularly, infra, § 1019, Esp. 63. See Browne on Frauds, §
1033. See Weir v. Hill, 2 Lans. 278; 425, citing, also, Warren i>. Stagg,3 T.
Ingles V. Patterson, 36 Wise. 373. R. 591 ; Emerson v. Slater, 22 How.
2 Cummings v. Arnold, 3 Mete. 42; Miles v. Roberts, 34 N. H. 245;
489 ; Lerned v. Wannemacher, 9 Al- and see Benj. on Sales, 151.
len, 418 ; Whittier v. Dana, 10 Allen, * Infra, § 909 ; Jones v. Barkley, 2
826; Thomas v. Wright, 9 S. & R. Doug. 684; Clement v. Durgin, 5
87 ; Hughes v. Davis, 40 Cal. 117. See, Greenl. 9 ; Fleming v. Gilbert, 3 Johns,
however, Stowell v. Robinson, 1 Bing. R. 530 ; Dearborn v. Cross, 7 Cow. 50.
N. R. 928; 5 Scott, 196, and criticism ' Infra,§ 1019. See, also, McLennan
on that case in Browne on Frauds, v. Johnston, 60 III. 806.
§ 428. See, also, infra, § 1083.
142
CHAP. XI.] STATUTE OF FRAUDS. [§ 906.
in writing, and for which no writing has ever existed, the statute
of frauds is a sufficient answer to such a proceeding, unless the
plea of the statute can be met by some ground of estoppel to
deprive the party of the right to set up that defence.^
§ 906. We shall have hereafter occasion to cite numerous au-
thorities to establish a principle so familiar that it would Waiver
appear to be a truism, viz., that parties can before per- charge of
formance, by consent, rescind that which they had con- un^eTstat-
sented to perform .^ The real difficulties in cases of this itecanbe
. . . . proved by
class are when particular solemnities are required to con- p*™'-
stitute a binding contract. When the parties have bound them-
selves by such solemnities to such a contract, can they without
such solemnities unbind themselves ? Does the rescinding of a
contract require the same guards and formalities as are necessary
to constitute the contract ? No doubt we have high authority to
the effect that it does, and that to loose parties from a contract
the statutory solemnities are as necessary as to bind them to such
contract.^ Yet it must always have been felt to be grossly in-
equitable to permit one party to enforce a contract which both
parties have agreed, for a good consideration, though only by
parol, to rescind and vacate ; and hence it was at an early period
held that a parol discharge could be set up, in equity, to defeat
a bill for the specific execution of a written contract.* Strong
proof, indeed, of waiver was expected ; but when strong proof
was given, then the contract would be decreed to be waived.
Whoever asks equity to aid him, cannot recover, if it be shown,
even though he make out a paper title, that he has no equitable
grounds for relief.^ Subsequently it was held by the court of
queen's bench,^ that the same rule will be applied in courts of
law. The statute of frauds, so it was argued by the court, does
not say that all contracts shall be in writing, but only that no
action shall be brought on a contract of a particular class unless
it be in writing. As the statute does not require that the disso-
1 Glass V. Hulbert, 102 Mass. 31; * Bell u. Howard, 9 Mod. 302; Buck-
Kidd V. Carson, 33 Md. 37 ; Billings- house u. Crossly, 2 Eq. Gas. Abr. 32.
lea V. Ward, 33 Md. 48. See Bright- ^ Sugd. V. & P. 173.
man v. Hicks, 108 Mass. 246. And " Goss v. Nugent, 5 B. & Ad. 65 ;
see infra, § 1148. 2 Nev. & M. 34. See Price v. Dyer,
" See infra, § 1017. 17 Ves. 356. Boulter, in re, 25 W. R.
» See Bell v. Howard, 9 Mod. 302. 101.
143
§ 906.]
THE LAW OF EVIDENCE.
[book II.
lution of contracts of this class should be in writing, such disso-
lution may be proved so as to defeat an action on the contract.^
' Thp topic in the text will be no-
ticed more fully in succeeding sec-
tions, in which will be found copious
citations of American cases, in many
of which it will be found that equity
doctrines have been adopted under
common law forms. ee infra, §§
1017-30.
In Goss V. Nugent, 6 B. & Ad. 58,
where the point arose, although it was
not necessary to decide it, Lord Den-
man, in commenting on the 3d section
of the statute of frauds, said: "As
there is no clause in the act which re-
quires the dissolution of such con-
tracts to be in writing, it should rather
seem that a written contract concern-
ing the sale of lands may still be
waived and abandoned by a new
agreement not in writing, and so as
to prevent either party from recover-
ing on the contract which was in
writing." Afterwards, however, he
appears to have doubted the accuracy
of his earlier opinion ; Harvey v.
Grabham, 5 A. & E. 74; and in a
case, still later, in the common pleas,
Tindal, C. J., showed a disposition to
adopt, to its full extent, the reasoning
of Lord.Hardwicke. Stowell v. Rob-
inson, 3 Bing. N. C. 937. It must be
remembered that Lord Denman him-
self is reported to have further quali-
fied his opinion expressed in Goss v.
Nugent. In Stead v. Dawber, 10 A.
& E. 57, the case last referred to, the
action was on a contract for the sale of
goods within the 1 7th section of the
statute of frauds, and the plaintiff
declared on a written agreement, by
which the goods were to be delivered
on a day certain, and then went on to
aver an oral agreement that the de-
livery should be postponed to a later
day, and breach the non-delivery on
such later day. The defendant pleaded
144
the want of a written agreement; and
the point for the court was, whether
the oral agreement was to be regarded
as a variation of the written agree-
ment, or as the introduction of an im-
material term. The court gave judg-
ment for the defendant, on the ground
that time was of the essence of the
contract, and therefore could not be
varied by parol; but it seems also to
have been understood that neither
could the original contract have been
waived by parol. Lord Denman
said : " Independently of the statute,
there is nothing to prevent the total
waiver or the partial alteration of a
written contract, not under seal, by
parol agreement; and in contemplation
of law, such a contract so altered sub-
sists between these parties; but the
statute intervenes, and, in the case of
such a contract, takes away the remedy
by action." This case has been cited
with approbation by Parke, B. Mar-
shall u. Lynn, 6 M. & W. 109. The
court of exchequer chamber after-
wards held that a subsequent oral
agreement cannot be " allowed to be
good," within the 17th section, for any
purpose whatever. Noble v. Ward,
L. R. 1 Ex. 117; 4 H. & C. 149; cf.
Moore v. Campbell, 10 Exch. 233.
Powell's Evidence, 4th ed. 402. See
Musselman o. Stoner, 31 Penn. St.
265. As concurring with Goss v. Nu-
gent, see Greenleaf Ev. § 302 ; 2
Phill. Ev. 363 (Am. ed.). As dis-
senting, Sugden, V. & P. 171.
Mr. Stephen, Ev. 159 (1876), after
noticing Goss v. Nugent, adds: "It
seems the better opinion that a ver-
bal rescission of a contract, good under
the statute of frauds, would be good."
To this he cites Noble v. Ward, L. R.
2 Ex. 135 ; Pollock on Contracts, 411,
note 6. He reminds us, however, as a
CHAP. XI.] STATUTE OF FRAUDS. [§ 908.
Or, as the reason is elsewhere given, such waiver may be proved,
even in a court of law, for the reason that he who prevents the
performance of a contract cannot afterwards require the contract
to be performed. To this effect we have numerous American
adjudications.^ Hence it has been held, that a parol contract for
rescission of a written sale of land, when the purchase money has
not been paid, will be sustained, when possession has not been
transferred finally to the vendee.^
§ 907. Courts of equity, no doubt, will give relief in cases of
fraud ; but fraud, to entitle such relief to be given, „
J. 1 , ■ , , . , , . ° . Eqaitywill
must be something more than that involved m setting relieve in
up the statute as a defence to a suit upon a parol agree- fraud, but
ment which the statute requires to be in writing. For defraud
a party to put in such a defence, however dishonorable """^'f'^i^
it may be, cannot be such a fraud, in cases of unexecuted pleading
. . tlie statute.
agreements, that equity can be called upon to interfere
to sweep away the defence. Such interference would be the
abrogation of a statute which is not only binding, but on the
main wise and beneficial.*
§ 908. What has been said applies to cases where a party
makes a contract in parol and then sets up the statute But
a defence to a suit to compel the execution of the ^^J^
iquity
Biieve
will relieve
stat-
contract. Suppose, however, that A., designing to de- ^^^ 'sensed
fraud B., should induce B. to enter into an oral con- tratefraud.
tract, of the class covered by the statute, and then, after B. has
performed his part of the contract, that A., to a suit to compel the
solution of the apparent inconsisten- 31 N. T. 376; Murray v. Harway, 56
cies in the rulings, that " a con- N. Y. 337; Murphy v. Dunning, 30
tract by deed can only be released by Wise. 296; Bailey v. Smock, 61 Mo.
deed." 213 ; Paris v. Haley, 61 Mo. 453 ; John-
1 Marshall v. Baker, 19 Me. 402; ston v. Worthy, 17 Ga. 420; Browne
Medomac Bk. v. Curtis, 24 Me. 36. on Frauds, § 436.
See Brown v. Holyoke, 53 Me. 9 ; " Arrington v. Porter, 47 Ala. 714.
Buel V. Miller, 4 N. H. 196; Marra- ' See Montacute v. Maxwell, 1 P.
han V. Noyes, 52 N. H. 232; Flanders Wms. 618 -,8.0.1 Stra. 618; Whit-
u. Fay, 40 Vt. 316; Cummings t>. Ar- ridge v. Parkhurst, 20 Md. 62;
nold, 3 Mete. (Mass.) 494 ; Bissell v. Schmidt v. Gatewood, 2 Rich. Eq.
Barry, 115 Mass. 300; Cutter i'. Coch- 162; Browne on Frauds, § 439; Bis-
rane, 116 Mass. 408; Connelly u. De- pham's Eq. § 386; Story's Eq. §
Toe, 37 Conn. 670 ; Fleming v. Gilbert, 768.
3 Johns. R. 531; Parker v. Syracuse,
VOL. II. 10 ]^45
§ 909.]
THE LAW OF EVIDENCE.
[book n.
performance of his part of the contract, should set up the stat-
ute. In such a case a court of equity, if appealed to, would re-
fuse to become a party to the enforcement of the fraud. And
if A. should, by a parol collateral agreement, fraudulently in-
duce B. to execute a written contract, a chancellor would compel
A. to perform his parol collateral agreement, though of the class
contemplated by the statute.''
§ 909. A fortiori is this the case where B., on the faith of the
parol agreement, has done, in performance of the same,
of part per- certain acts which can only be made good by the per-
formance of the contract on the part of A.^ In Massa-
chusetts, howcTer, this exception is not admitted,^ nor is it in
North Carolina,* Mississippi,^ Tennessee,^ or Maine.^ In any
1 See Maxwell's case, 1 Bro. C. C.
408; Babcoek v. Wyman, 19 How.
289; Walker v. Walker, 2 Atk. 99;
Cookes V. Mascall, 2 Vern. 200 ; Hunt
V. Roberts, 40 Me. 187; Buel v. Miller,
4 N. H. 196; Crocker v. Hlggins, 7
Conn. 242; Hodges v. Howard, 5 K.
I. 149 ; McBurney v. Wellman, 42
Barb. 890 ; Frazer v. Child, 4 E. D.
Smith, 153; Browne on Frauds, § 447;
Arnold v. Cord, 16 Ind. 177; Coyle
V. Davis, 20 Wise. 504; Cousins v.
Wall, 3 Jones Eq. (N. C.) 43; Cam-
eron V. Ward, 8 Ga. 245 ; Jones v.
McDougal, 82 Miss. 179; Hidden v.
Jordan, 21 Cal. 92.
2 Savage v. Foster, 9 Mod. 37;
Kine v. Balfe, 2 Ball & B. 314; Dale
V. Hamilton, 5 Hare, 369 ; Morphett
tf. Jones, 1 Swanst. 172; Clinan v.
Locke, 1 Sch. & Lef. 22; Nunn v.
Fabian, L. R. 1 Ch. Ap. 85; Caton v.
Caton, L. R. 1 Ch. App. 187; Pur-
cell V. Miner, 4 Wall. 513; Newton «.
Swazey, 8 N. H. 9; A^ams v. Ful-
1am, 43 Vt, 592; Annan v. Merritt,
13 Conn. 478 ; Parkhurst v. Van Cort-
land, 14 Johns. 15; Cagger v. Lan-
sing, 43 N. Y. 650; Freeman v. Free-
man, 48 N. Y. 34; Eyre v. Eyre, 4
C. E. Green N. J. 102; Allen's Est.
1 Watts & 8. 888; Moore v. Small, 19
146
Penn. St. 461 ; Greenlee v. Greenlee,
22 Penn. St. 225; Moss v. Culver, 64
Penn. St. 414; Sackett v. Spencer, 65
Penn. St. 89; Milliken v. Dravo, 67
Penn. St. 230; Hamilton v. Jones,
3 Gill & J. 127; Gough v. Crane,
3 Md. Ch. 119 ; Anthony v. Leftwioh^,
3 Rand. 255 ; Wright v. Puckett, 22
Grat. 374; Thayer v. Luce, 22 Oh. St.
62 ; Printup v. Mitchell, 17 Ga. 558;
Ford V. Finney, 35 Ga. 358; Rawson
V. Bell, 46 Ga. 19 ; Rosser v. Harris,
48 Ga. 512; Parke v. Leewright, 20
Mo. 85; Tatum v. Brooker, 51 Mo.
148 ; Ottenhouse v. Burleson, 11 Tex.
87; Arguello v. Edinger, 10 Cal. 150;
Hoffman o. Felt, 39 Cal. 109 ; Reedy
V. Smith, 42 Cal. 245.
» Jacobs V. R. R. 8 Cush. 224;
Parker v. Parker, 1 Gray, 409.
< Albea </. Griffin, 2 Dev. &. Bat.
Eq. 9.
8 Beaman v. Buck, 9 Sm. & M.
210.
" Ridley v. McKairy, 2 Hnmph.
174.
' Stearns v. Hubbard, 8 Greenl.
820.
Before the recent judicature stat-
utes, the only relaxations of the stat-
ute which English judges at common
law would allow were, first, if a parol
CHAP. XI.J
STATUTE OF FRAUDS.
[§ 909.
case, the parol agreement to be sustained must be definite ; the
acts claimed to be part performance must refer to and result
from the agreement, and the performance must also be of such a
character that execution on the other side would be the only
mode by which the complainant could be put right.^ Going
into possession of land under a parol contract, and making
bond fide permanent improvements, have been held to be part
performance in this sense.^ Even possession taken, as an inci-
dent of a lond fide removal, so as to commit the party to the
new residence, has, when in direct performance of the contract,
been deemed enough.^ Such possession, it should be remem-
agreement respecting lands had been
entirely executed by both parties, the
contract could not afterwards be called
in question, should it be necessary to
refer to it for any collateral purpose;
Griffith V. Young, 12 East, 513; Sea-
man V. Price, 2 Bing. 437; 10 Moore,
38, S. C; Green v. Saddington, 7 E. &
B. 503 ; see Hodgson v. Johnson, E.,
B. & E. 685, 689, per Ld. Campbell;
and next, if it had been executed by
one party, and the transaction were of
such a nature as to admit of an action
for use and occupation, or in indebi-
tatus assumpsit, the other party, it
was intimated, would not be permitted
to defeat this action by setting up the
statute. See Lavery v. Turley, 6 H.
& N. 239; Savage v. Canning, 1 I. B,.
C. L. 434, per C. P.; Ld. Bolton v.
Tomlin, 5 A. & E. 856; 1 N. & P. 247,
S. C; Cocking v. Ward, 1 C. B. 858;
Kelly V. Webster, 12 C. B. 283. This,
under the old practice, was the limit
to which the courts of common law
could go. Under the new English
practice, enabling equitable defences
to be pleaded in common law courts,
we have as yet no adjudications. But
in the United States there are few
jurisdictions in which the more liberal
practice is not adopted by the common
law courts. See fully infra, § 1019
et seq.
1 See Wright v. Puckett, 22 Grat.
374; Robertson v. Robertson, 9 Watts,
32; Phillips v. Thompson, 1 Johns.
Ch. 131; Lester v. Kinne, 37 Conn. 9;
1 Sugd. v. & P. 8th Am. ed. 226;
and see Lacon v. Mertins, 3 Atk. 3 ;
Frye V. Shepler, 7 Barr, 91; Cole v.
Potts, 2 Stockt. N. J. 67; Long v.
Duncari, 10 Kans. 294.
" Savage v. Carroll, 1 Ball & B.
119; Sutherland v. Briggs, 1 Hare
Ch. 27; Dowell v. Dew, 1 Yo. & Col.
345; Wilton v. Harwood, 23 Me. 133;
Miller v. Tobie, 41 N. H. 84; Dav-
enport». Mason, 15 Mass. 92; Peck-
ham V. Barker, 8 Bh. I. 17; Adams v.
Rockwell, 16 Wend. 285; Freeman v.
Freeman, 43 N. Y. 34; Richmond v.
Foote, 3 Lans. 244; Lobdell v. Lob-
dell, 36 N. Y. 327 ; Casler v. Thomp-
son, 3 Green Ch. 59; Wack v. Sorber,
2 Whart. 387; Gangwer u. Fry, 17
Penn. St. 491; Van Loon v. Daven-
port, 2 Weekly Notes, 320; Smith v.
Smith, 1 Rich. Eq. 130; Cummings v.
Gill, 6 Ala. 562; Byrd v. Odem, 9
Ala. 755 ; Perkins v. Hadsell, 50 111.
216 ; Ridley v. McNairy, 2 Hutnph.
174.
» Butcher v. Staply, 1 Vern. 363;
Lacon v. Mertins, 3 Atk. 3 ; Eaton v.
Whitaker, 18 Conn. 229; Smith v.
Underdunck, 1 Sandf. Ch. 579 ; Har-
ris V. Knickerbocker, 5 Wend. 638;
Brown «. Jones, 46 Barb. 400; Mor-
rill V. Cooper, 65 Barb. 512; Pugh o.
147
§ 909.]
THE LAW OF EVIDENCE.
[book II,
bered, must be actual, not merely technical and constructive ; i
must be exclusive ; ^ must be subsequent tothe agreement ; ^ must
be with the vendor's knowledge and consent, and not surrepti-
tious or adverse ; * must be permanent,^ and must be of a char-
acter the loss of which could not be compensated for in dam-
ages.®
Good, 3 Watts & S. 56; Moale v.
Buchanan, 11 Gill & J. 314; Harris
t). Crenshaw, 3 Rand. 14; Anderson
V. Chick, 1 Bailey Ch. 118; Palmer «.
Richardson, 3 Strobh. Eq. 16; Brock
V. Cook, 3 Porter, 464.
* Brawdy v. Brawdy, 7 Barr, 157 ;
Moore v. Small, 19 Penn. St. 461;
Bush V. Oil Co. 1 Weekly Notes, 320;
Com. o. Kreager, 78 Penn. St. 477.
^ Frye v. Shepler, 7 Barr, 91.
* Gregory v. Mighell, 18 Ves. 328;
Eckert v. Eekert, 3 Penn. R. 332;
Atkins V. Young, 12 Penn. St. 24;
Blakeslee v. Blakeslee, 22 Penn. St.
237; Christy v. Barnhart, 14 Penn.
St. 260 ; Reynolds v. Hewett, 27 Penn.
St. 176; Myers v. Byerly, 45 Penn.
St. 868 ; Haines v. Haines, 6 Md.
435; Mahana w. Blunt, 20 Iowa, 142;
Anderson v. Simpson, 21 Iowa, 899.
* Gregory v. Mighell, 18 Ves. 328;
Purcell V. Miner, 4 Wall. 513 ; Gouch-
er V. Martin, 9 Watts, 106; Gratz
V. Gratz, 4 Rawle, 411; Johnstoi v.
Glancy, 4 Blackf. 94; Thomson v.
Scott, 1 McCord Ch. 32.
* Rankin v. Simpson, 19 Penn. St.
471 ; Dougan v. Blocher, 24 Penn. St.
28.
' "The rule is well settled, that to
take a parol contract for the sale of
land out of the operation of the statute
of frauds and perjuries, the contract
must be distinctly proved; the land
must be clearly designated, and open,
notorious, and exclusive possession
must be taken and maintained under
and in pursuance of the contract.
Moore v. Small, 7 Harr. 469; Frye v.
Shepler, 7 Barr, 91 ; Hill v. Meyers, 7
148
Wright, 172. Every parol contract
is within the statute of frauds, except
where there has been such part per-
formance as cannot be compensated in
damages. Moore v. Small, 7 Harris,
469. If the circumstances of the case
are not such as to render reasonable
compensation for what has been paid
or done impossible, then compensation,
instead of execution of the contract,
is the duty which the law will enforce.
Postlethwait v. Frease, 7 Casey, 472.
A court of equity enforces such a con-
tract only where it has been so far
executed that it would be unjust to
rescind it. No matter how clear the
proof of such contract may be, specific
performance thereof will not be de-
creed where adequate compensation
may be made in damages. McKowen
V. McDonald, 7 Wright, 441. These
principles are too familiar to need il-
lustration.
" Whether the evidence is sufficient
to take such a contract out of the
operation of the statute is a question
of law for the court. Irwin ti. Irwin,
10 C. 525." Woodward, J., Over-
myer v. Koerner, 2 Weekly Notes, 6.
The sufficiency of possession taken
of land under a contract, to be of it-
self such part performance as to take
the contract out of the statute of
frauds, has been frequently asserted
in Pennsylvania. See Akerman v.
Fisher, 57 Penn. St. 457, and other
cases cited supra. See, also, as some-
what tempering the positiveness of this
doctrine, Farley v. Stokes, 1 Pars. Eq.
Cases, 422; Bassler v. Niesly, 2 S.
& R. 352; Workman v. Guthrie, 29
CHAP. XI.] STATUTE OF FRAUDS. [§ 910.
§ 910. Mere payment of purchase money, however, is not suffi-
cient part performance to compel the execution of such But pay-
a parol contract ; ^ unless the condition of the vendee ™urohase
is such that he could not be restored to his former sit- ,?°°f7
13 not
nation by resort to a suit for repayment.^ Nor, as we enough,
have seen,^ is marriage considered to be such part performance of
a parol marriage settlement as will make such settlement opera-
tive.* It is also to be remembered that the exception of part
performance, as a ground for taking a parol contract out of the
statute, is cognizable in equity only on ground of the fraud that
would be perpetrated if specific redress were not given, and is
not technically cognizable in law, though cognizable in those sys-
tems of jurisprudence which permit equitable remedies to be
administered under common law forms.^
Penn. St. 495; Van Looti v. Daven- Gittings, 3 Gill, 138; Everts v. Ag-
port, 1 Week. Notes (Phila.). nes, 4 Wise. 343; Morrill v. Cooper,
1 Buckmaster v. Harrop, 7 Ves. 341; 65 Barb. 512. See Laeon v. Mertins,
Clinan v. Cooke, 1 Sch. & L. 40; 3 Atk. 4; Hales v. Bercham, 3 Vern.
Hughes V. Morris, 2 De G., M. & G. 618; Main v. Melborn, 4 Ves. 724;
356; Purcell v. Miner, 4 Wall. 513; Jones v. Petermau, 3 S. & R. 543;
Kidder v. Barr, 35 N. H. 235; Glass Frieze v. Glenn, 2 Md. Ch. 361.
V. Hulbert, 102 Mass. 21 ; Cogger v. ' Supra, § 882.
Lansing, 43 N. Y. 550; Eaton ». Whit- * Montacute v. Maxwell, 1 P. Wms.
aker, 18 Conn. 222; Cole v. Potts, 2 618; Dundas v. Dutens, 1 Ves. Jun.
Stockt. 67; McKee v. Phillips, 9 196; 2 Cox, 235 ; Caton i7. Caton, L.
Watts, 85; Parker v. Wells, 6 Whart. R. 1 Ch. App. 147; Hammersly v. De
153; Allen's Est. 1 Watts & S. 283; Biel, 12 CI. & F. 65; Finch v. Finch,
Gangwer v. Fry, 17 Penn. St. 491; 10 Oh. St. 501; Hatcher v. Robert-
Townsend v. Houston, 1 Har. (Del.) son, 4 Strobh. Eq. 179.
532 ; Letcher v. Cosby, 2 A. K. « O'Herlihy v. Hatcher, 1 Sch. &
Marsh. 106; Lefferson v. Dallas, 20 L. 123; Kelley u. Webster, 12 C. B.
Oh. St. 74; Parke v. Leewright, 20 383; Lane t'. Shackford, 5 N. H. 132;
Mo. 85; Johnston v. Glancy, 4Blackf. Pike v. Morey, 32 Vt. 37; Norton w.
94 ; Mather v. Scoles, 35 Ind. 5; Preston, 15 Me. 16; Adams «. Town-
Mialhi ii. Lazzabe, 4 Ala. 712; Hunt send, 1 Mete. (Mass.) 485; Eaton v.
V. McClellan, 41 Ala. 451; Church v. Whitaker, 18 Conn. 231; Jackson v.
Farrow, 7 Rich. Eq. 378 ; Hyde v. Pierce, 2 Johns. R. 223 ; Abbott v.
Cooper, 13 So. Car. Eq. 250; Wood w. Draper, 4 Denio, 52; Wentworth v.
Jones, 35 Tex. 64. See, atiter, Fair- Buhler, 3 E. D. Smith, 305; Walter
brother v. Shaw, 4 Iowa, 570; John- w. Walter, 1 Whart. 292; Henderson
ston V. Glancy, 4 Blackf. 94. v. Hays, 2 Watts & S. 148; Hunt v.
^ Bispham's Eq. § 385; Rhodes v. Coe, 15 Iowa, 197; Johnson v. Han-
Rhodes, 3 Sandf. Ch. 279; Malins v. son, 6 Ala. 351; Davis v. Moore, 9
Brown, 4 Comst. 403 ; Johnson v. Rich. S. C. 215.
Hubbell, 2 Stockt. 332 ; Dugan v.
149
§ 912.]
THE LAW OF EVIDENCE.
[book n.
Where
written
contract in
conformity
with stat-
ute ia pre-
vented by
fraud,
equity will
relieve.
§912.
§ 911. Parol eyidence is also admissible to prove
that the party aggrieved was ready to execute a writ-
ten instrument in conformity with the statute, but was
prevented by the fraud of the other party ; and in such
case, a parol contract, the formal execution of which
was thus prevented, will be enforced.^
Where a parol contract, in a suit for its specific per-
formance, is admitted by the defendant, and the de-
fence of the statute is waived by him, the parol con-
tract is held to be taken out of the statute, and may
be enforced by a chancellor, or a court administering
equity remedies.^ The same effect has been assigned
to a pro confesso decree.^ But against strangers and creditors
coming in to resist a decree for specific execution, even such an
admission and refusal to set up the statutes cannot take a parol
agreement out of the statute.*
Whether title to lands can be transferred by estoppel under
the statute, is hereafter discussed.^
When pa-
rol contract
is admitted
in answer,
it may be
equitably
enforced.
1 See Story's Eq. Juris. § 768 ;
Bispham's Eq. § 386; Montacute v.
Maxwell, 1 P. Wms. 618.
' Smith's Manual of Eq. 252 ;
Browne's Frauds, § 476 ; Gunter v.
Halsey, Ambl. 586; WLitechurch v.
Bevis, 2 Browne Ch. 566; Atty. Gen.
V. Sitwell, 1 Yo. & Col. 583 ; Harris v.
Knickerbocker, 5 Wend. 638; Artz v.
Grove, 21 Md. 456; Argenbright v.
150
Campbell, 3 Hen. & Mun. 144; Ellis
V. Ellis, 1 Dev. Eq. 341 ; Hollingshead
V. McKenzie, 8 Ga. 457; McGowen
V. West, 7 Mo. 569.
* Newton v. Swazey, 8 N. H. 9 ;
Whiting V. Goult, 2 Wise. 562; Esmay
V. Groton, 18 111. 483.
* Winn V. Albert, 2 Md. Ch. 169 ;
Albert v. Winn, 2 Md. 66.
6 Infra, § 1148.
CHAPTER XII.
DOCUMENTS MODIFIED BY PAROL.
I. General Rules.
Parol evidence not admissible to
vary documents as between par-
ties, § 920.
New ingredients cannot be thus
added, § 921.
Dispositive documents may be
varied by parol as to strangers,
§923.
Whole document must be taken to-
gether, § 924.
Written entries are of more weight
than printed, § 925.
Informal memoranda are excepted
from rule, § 926.
Parol evidence admissible to show
that document was not executed,
or was only conditional, § 927.
And so to show that it was con-
ditioned on a non-performed con-
tingency, § 928.
Want of due delivery, or of contin-
gent delivery, may be proved by
parol, § 930.
Fraud or duress in execution may
be shown by parol, and so of in-
sanity, § 931.
But complainant must have a strong
case, § 932.
So as to concurrent mistake, § 933.
So of illegality, § 935.
Between parties intent cannot be
proved to alter written nieaning,
§936.
Otherwise as to ambiguous terms,
§937.
Declarations of intent need not have
been contemporaneous, § 938.
Evidence admissible to bring out
true meaning, § 939.
For this purpose extrinsic circum-
stances may be shown, § 940.
Acts admissible for the same pur-
pose, § 941.
Ambiguous descriptiohs of property
may be explained, § 942.
Erroneous particulars may be re-
jected as surplusage, §945.
Ambiguity as to extrinsic objects
may be so explained, § 946.
Parol evidence admissible to prove
" dollar" means Confederate dol-
lar, § 948.
Parol evidence admissible to iden-
tify parties, § 949.
To enable undisclosed principal to
sue or be sued, he may be proved
by parol, § 950.
But person signing as principal
cannot set up that he was agent,
§951.
Suretyship on writing may be
shown by parol, § 952.
Other cases of distinction and iden-
tification, § 953.
Evidence of writer's use of lan-
guage admissible to solve ambi-
guities, § 954.
Party may be examined as to intent
or understanding, § 955.
Patent ambiguities cannot be ex-
plained by parol, § 956.
"Patent" is "subjective," and
"latent" "objective," §957.
Usage cannot be proved to vary
dispositive writings, § 958.
Otherwise in case of ambiguities,
§961.
Usage is to be brought home to the
party to whom it is imputed,
§962.
May be proved by one witness,
§964.
Usage is to be proved to the jury,
and must be reasonable and not
conflicting with lex fori, § 965.
When no proof exists of usage,
meaning is for court, § 966.
151
THE LAW OF EVIDENCE.
[book II.
Power of agent may be construed
by usage, § 967.
Usage received to explain broker's
memoranda, § 968.
Customary incidents may be an-
nexed to contract, § 969.
Course of business admissible in
ambiguous cases, § 971.
Opinion of expert inadmissible as
to construction of document; but
otherwise to decipher and inter-
pret, § 972.
Parol evidence admissible to rebut
an equity, § 973.
Opinion of witnesses as to libel ad-
missible, § 975.
Dates not necessarily part of con-
tract, § 976.
Dates presumed to be true, but may
be varied by parol, § 977.
Exception to this rule, § 978.
Time may be inferred from circum-
stances, § 979.
II. Special Rules as to Eecoeds,
Statutes, and Charters.
Records cannot be varied by parol,
§980.
And so of statutes and charters,
§ 980 a.
Otherwise as to acknowledgment of
sheriffs' deeds, § 981.
Record imports verity, § 982.
But on application to court, rec-
ord may be corrected by parol,
§983.
For relief on ground of fraud, peti-
tion should be specific, § 984.
Fraudulent record may be collater-
ally impeached, § 985.
When silent or ambiguous record
may be explained by parol, §
986.
Town records subject to same rules,
§987.
Former judgment may be shown
to relate to a particular case,
§988.
Nature of cause of action may be
proved, § 989.
So of hour of legal procedure, § 990.
So of collateral incidents of rec-
ords, § 991.
III. Special Rules as to Wills.
Wills cannot be varied by parol.
Intent must be drawn from writ-
ing, § 992.
When primary meaning is inappli-
cable to any ascertainable object
162
evidence of secondary meaning
is admissible, § 996.
When terms are applicable to sev-
eral objects, evidence admissible
to distinguish, § 997.
In ambiguities, all the surround-
ings, family, and habits of the
testator may be proved, § 998.
All the extrinsic facts are to be
considered, § 999.
When description is only partly ap-
plicable to each of several ob-
jects, then declarations of intent
are inadmissible, § 1001.
Evidence admissible as to other
ambiguities, § 1002.
Erroneous surplusage may be re-
jected, § 1004.
Patent ambiguities cannot be re-
solved by parol, § 1006.
Ademption of legacy may be proved
by parol, § 1007.
Parol proof of mistake of testator
inadmissible, § 1008.
Fraud and undue influence may be
so proved, § 1009.
Testator's declarations primarily
inadmissible to prove fraud or
compulsion, § 1010.
But admissible to prove mental
condition, § 1011.
Parol evidence inadmissible to sus-
tain will when attacked, § 1012.
Probate of will only primA fade
proof, § 1013.
IV. Special Rules as to Con-
TEACTS.
Prior conference merged in written
contract, § 1014.
Parol may prove contract partly
oral, § 1015.
Oral acceptance of written contract
may be so proved, § 1016.
Rescission of one contract and sub-
stitution of another may be so
proved, § 1017.
Exception t law as to writings
under seal, § 1018.
Parol evidence admissible to reform
a contract on ground of fraud,
§ 1019.
' So as to concurrent mistake
§ 1021.
But not ordinarily to contradict
document, § 1022.
Reformation must be specially
asked, § 1023.
Under statute of frauds parol con-
CHAP. Xn.] DOCUMENTS MODIFIED BY PAROL.
[§ 920.
tract canaot be substituted for
written, § 1025.
Collateral extension of contract may
be proved by parol, § 1026.
Parol evidence inadmissible to
prove unilateral mistake of fact,
§ 1028.
And so of mistake of law,
§ 1029.
Obvious mistake of form may be
proved by parol, § 1030.
Conveyance in fee may be shown
to be a mortgage, § 1031.
But evidence must be plain and
strong, § 1033.
Admission of such evidence does
not conflict with statute of frauds,
§ 1034.
Resulting trust may be proved by
parol, § 1035.
So of other trusts, § 1038.
Particular recitals may estop, §
1039.
Otherwise as to general recitals,
§ 1040.
Recitals do not bind third parties,
§ 1041.
Recitals of purchase money open
to dispute, § 1042.
Consideration may be proved or
disproved by parol, § 1044.
Seal imports consideration, but
may be impeached on proof of
fraud or mistake, § 1045.
Consideration in contract cannot
primd facie be disputed by those
claiming under it, though other
consideration may be proved in
rebuttal of fraud, § 1046.
When fraud is alleged, stranger
may disprove consideration, §
1047.
And so may bond Jide pur-
chasers and judgment ven-
dees, § 1049.
V. Special Rules as to Deeds.
Deeds not open to variation by
parol proof, § 1050.
Acknowledgment may be disputed
by parol, § 1052.
Between parties, deeds may be
varied on proof of ambiguity and
fraud, § 1054.
Deeds may be attached by bond
Jide purchasers, and judgment
vendees, § 1055.
And so as to mortgages, § 1056.
Deed may be shown to be in trust,
§ 1057.
(As to recitals, see §§ 1039-1042.)
VI. Special Roles as to Keqoti-
ABLE Paper.
Negotiable paper not susceptible of
parol variation, § 1058.
Blank indorsement may be ex-
plained, § 1059.
Relations of parties with notice
may be varied b}'' parol, and so
may consideration, § 1060.
Real parties may be brought out
by parol, § 1061.
Ambiguities in such paper may be
explained, § 1062.
VII. Special Rules as to othek In-
stbOmehts.
Releases cannot be contradicted by
parol, § 1063.
Receipts can be so contradicted,
§ 1064.
Exception as to insurance re-
ceipts, § 1065.
Receipts may be estoppels as to
third parties, § 1066.
Bonds may be shown to be con-
ditioned on contingencies, § 1067.
Subscriptions cannot be modified
as to third parties by parol, §
1068.
Bills of lading are open to explana-
tion, § 1070.
I. GENERAL RULES.
§ 920. Parol evidence, in obedience to a rule which has been
already frequently stated, cannot be received to vary Paroi evi-
the terms of a document. It is important, however, eranvno"'
in determining the force of this rule, to distinguish tQ™'^'''*
between documents which are uttered dispositively, documents
,,. . r • ^ 11 between
I. e. for the purpose of disposing of rights ; and those parties.
153
§ 920.] THE LAW OF EVIDENCE, [BOOK 11.
uttered non-dispositively, i. e. not for the purpose of disposing
of rights.i A non-dispositive, or, to adopt Mr. Beutham's term,
a " casual " document, is more open to parol variation than is
a document which is dispositive, or, as Mr. Bentham calls it,
" predetermined." A casual or non-dispositive document (e. g.
a letter or memorandum thrown off hurriedly in the ease and
carelessness of familiar intercourse, without intending to insti-
tute a contract, and without reference to the litigation into which
it is afterwards pressed)^ is peculiarly dependent upon extra-
neous circumstances ; is often inexplicable unless such circum-
stances are put in evidence ; and employs language, which, so
far from being made up of phrases selected for their conven-
tional business and legal limitations, is marked by the writer's
idiosyncrasies, and sometimes comprises words peculiar to the
writer himself. But whether such documents are informally or
formally constituted, they agree in this, that, so far as concerns
the parties to the case in which they are offered, they were not
prepared for the purpose of disposing of the rights of the party
from whom they emanate. Dispositive documents, on the other
hand, are deliberately prepared, and are usually couched in
words which are selected for the purpose, because they have a
settled legal or business meaning. Such documents are meant
to bind the party uttering them in both his statements of fact
and his engagements of future action ; and they are usually
accepted by the other contracting party (or in case of wills, by
parties interested), not in any occult sense, requiring explana-
tion or correction, but according to the legal and business mean-
ing of the terms.2 It stands to reason, therefore, that parol
evidence is not as a rule to be received to vary the terms of doc-
uments so prepared and so accepted, though it is otherwise when
such documents are offered, not dispositively, between the par-
ties, but non-contractually, as to strangers. So far as concerns
1 See infra, §§ 1078, 1083. when he tells us that "oral evidence
' See McCrea v. Purmort, 1 6 Wend, of a transaction is not excluded by the
460; Sourse v. Marshall, 23 Ind. 194; fact that a documentary memorandum
Stone V. Wilson, 3 Brev. (S. C.) 228. of it was made, if such memorandum
' The distinction between disposi- was not intended to have legal effect as a
tive and non-dispositive (or casual) contract or other disposition of prop-
documents is recognized by Mr. Ste- erty." Steph. Ev. art. 90.
phen in substance, though not in terms,
154
CHAP. XU.] DOCUMENTS MODIFIED BY PAROL.
§920.
the parties or privies to a dispositive document, valid in itself, its
terms cannot ordinarily be varied by parol.^
' Preston v. Merceau, 2 W. Bl.
1249; Goss v. Nugent, 5 B. & Ad.
64; Adams v. Wordley, 1 M. & W.
374; Van Ness v. Washington, 4 Pet.
232 ; Shankland v. Washington, 5 Pet.
390 ; Hunt v. Rousmanier, 8 Wheat.
174 ; Van Buren v. Digges, 11 How.
461 ; Partridge v. Ins. Co. 15 Wall.
593 ; Bailey v. R. R. 17 Wall. 96; Ga-
vinzel v. Crump, 22 Wall. 308 ; Moran
V. Prather, 23 Wall 499 ; Eveleth v.
Wilson, 15 Me. 109; Peterson v. Gro-
ver, 20 Me. 363; Ticonic Bk. w. John-
son, 21 Me. 426 ; Whitney v. Lowell,
33 Me. 318; Whitney v. Slayton, 40
Me. 224; Bell v. Woodman, 60 Me.
465; Bromley v. Elliot, 38 N. H. 287 ;
Smith V. Gibbs, 48 N. H. 335; Brad-
ley u. Bentley, 8 Vt. 243 ; Bond v.
Clark, 35 Vt. 577; Brandon v. Morse,
48 Vt. 322; Joseph v. Bigelow, 4 Cush.
82; Myrick v. Dame, 9 Cush. 248 ;
Finney v. Ins. Co. 8 Mete. 348 ; Cook
V. Shearman, 103 Mass. 21; Colt v.
Cone 107 Mass. 285; McParland v. R.
R. 115 Mass. 103; Barnstable Bk. «.
Ballou, 119 Mass. 487; Black ii. Bach-
elder, 1 20 Mass. 171; Beckley v. Mun-
son, 13 Conn. 299; Glendale Woollen
Co. V. Ins. Co. 21 Conn. 19; LaFarge
I). Rickert, 5 Wend. 187 ; Spencer v.
Tilden, 5 Cow. 144; Hull v. Adams,
1 Hill N. Y. 601; Baker v. Higgins,
21 N. Y. 397; Clark ». Ins. Co. 7 Lans.
323; Long v. R. R. 50 N. Y. 76; Col-
lender V. Dinsmore, 55 N. Y. 200; Mott
V. Richtmyer, 57 N. Y. 49; Van Bok-
kelen v. Taylor, 62 N. Y. 105; Heil-
ner v. Imbrie, 6 Serg. & R. 401 ; Al-
bert V. Ziegler, 29 Penn. St. 50; Col-
lins V. Baumgardner, 52 Penn. St. 461
Kirk V. Hartman, 63 Penn. St. 97
Hagey v. Hill, 75 Penn. St. 108
Penns. Canal Co. v. Betts, 1 Weekly
Notes, 368; Woodruff v. Frost, 2 N.
J. L. 342; Perrine v. Cheeseman, 11
N. J. L. 174; Rogers v. Colt, 21 N. J.
L. 704; Young v. Frost, 5 Gill, 287;
Batturs v. Sellers, 6 Har. & J. 249 ;
Criss V. Withers, 26 Md. 553; Hays v.
Ins. Co. 36 Md. 398; Hill v. Peyton,
21 Grat. 386; Irwin v. Ivers, 7 Ind.
308; McClure v. Jeffrey, 8 Ind. 79;
Fankboner v. Fankboner, 20 Ind. 62 ;
Abrams v. Pomeroy, 13 HI. 133; Har-
low V. Boswell, 15 111. 56; Robinson v.
Magarity, 28 111. 423; Winnesheik Ins.
Co. V. Holzgrafe, 53 111. 516; Johnson
V. Pollock, 58 111. 181; McCormick v.
Huse, 66 111. 515 ; Manny. Smyser, 76
111. 365; Cease v. Cockle, 76 111. 484;
Warren v. Crew, 22 Iowa, 315; At-
kinson V. Blair, 38 Iowa, 266; Irish v.
Dean, 39 Wise. 562; Lennard v. Vis-
cher, 2 Cal. 37; Ruiz v. Norton, 4
Cal. 359; Lemaster v. Burckhart, 2
Bibb, 25; Ward v. Ledbetter, 1 Dev. &
B. Eq. 496; Chamness v. Crutchfield,
2lred. Eq. 148; Etheridge v. Palin,
72 N. C. 213 ; Falkoner u. Garrison,!
McCord, 209 ; Wynn v. Cox, 5 Ga.
373; Davis v. Moody, 15 Ga. 175;
Freeman v. Bass, 34 Ga. 355 ; White-
head V. Park, 53 Ga. 575 ; Duff v.
Ivy, 3 Stew. 140; Kennedy v. Ken-
nedy, 2 Ala. 571; Adams v. Garrett,
12 Ala. 229 ; West v. Kelly, 19 Ala.
253; Elliott v. Connell, 13 Miss. 91;
Dabadie v. Poydras, 3 La. An. 153 ;
Laycock v. Davidson, 11 La. An. 328;
Barthet v. Estebene, 5 La. An. 315;
Boner v. Mahle, 3 La. An. 600; Fer-
guson V. Glaze, 12 La. An. 667 ;
Shreveport v. Le Rosen, 18 La. An.
577; Singleton v. Fore, 7 Mo. 515;
Peers v. Davis, 29 Mo. 184; Bunce
V. Beck, 43 Mo. 266 ; Helmrichs v.
Gehrke, 56 Mo. 79 ; Huse v. Mc-
155
§ 922.] THE LAW OF EVIDENCE. [BOOK n.
§ 921. In respect to documents prepared by parties for the
Newingre- purpose of expressing in writing terms on which they
nifbe °°'°" ^^^^ reciprocally agreed, the rule which has been stated
added. ^as an additional sanction. Hence comes the conclu-
sion that new ingredients cannot be by parol added to such
documents.^ Thus articles of property cannot be added by parol
to those specified in a bill of sale.^ So, as an additional consid-
eration to a written contract for the grant of a right of way to a
railroad company, it cannot be proved by parol that the company
agreed to fill up a sluice upon the land.^ In a suit, also, on a
written agreement for the sale of " 25,000 pale brick for three
dollars per m, and 50,000 hard brick for four dollars per m cash,"
parol evidence is inadmissible to show that the parties intended
the delivery to be in parcels, payment for each parcel to be due
on its delivery ; * nor can a written agreement to deliver wood
be modified by parol proof that the wood was to be paid for as
delivered in parcels.^ It is inadmissible, to take another illustra-
tion, in a suit on a lease for water-works, conveying, with two
exceptions, the entire control of the water, to prove by parol
that it was intended to have introduced another exception in
favor of another party .^ So where a shipper of goods takes from
the carrier a bill of lading or other voucher giving the terms of
transportation, the writing, in the absence of fraud or concurrent
mistake, must be regarded as the final expression of the will of
the parties, not open to variation by TpaxoU
§ 922. Auctioneers' conditions of sale may be taken as afford-
Quade, 52 Mo. 888; Baker v. Ferris, Conn. 93; La Farge v. Rickert, 6
61 Mo. 389 ; Koehring v. Muemming- Wend. 187 ; Lyon v. Miller, 24 Penn.
lioff, 61 Mo. 403; Richardson v. Com- St. 392; Howard v. Thomas, 12 Oh.
stock, 21 Ark. 69; Trammell v. Pil- St. 201; Johnson v. Pierce, 16 Oh.
grim, 20 Tex. 158 ; Donley v. Bush, St.472; Snyder i;. Koons, 20 Ind. 389;
44 Tex. 1. For the argument for ex- Freeman v. Bass, 34 Ga. 355 ; Drake
eluding proof of intent, see infra, § v, Dodworth, 4 Kans. 159.
936. On the general topic of inter- ^ Osbornw. Hendrickson, 7 Cal. 282;
pretation, see Lieber's Legal and Po- Angomar v. Wilson, 12 La. An. 857.
litical Hermeneutics. * Purinton v. R. R. 46 111. 297.
1 Infra, § 1014 et seq. ; Hale v. * Baker v. Higgins, 21 N. Y. 397.
Handy, 26 N. H. 206 ; Kimball v. « Brandon v. Morse, 48 Vt. 322.
Bradford, 9 Gray, 243 ; Frost ti.Blan- « Hovey v. Newton, 7 Pick. 29.
chard, 97 Mass. 155; Dudley v. Vose, ' Long w. R. R. 50 N. Y. 76. See
114 Mass. 34 ; Galpin v. Atwater, 29 fully § 1014 et seq.
166
CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 923.
ing another illustration of the rule before us. Where the printed
conditions of sale at an auction, signed by the auctioneer, de-
scribed the time and place of sale, and the number and kind
of timber sold, but said nothing about the weight, evidence of
the auctioneer's statements at the sale was held inadmissible to
prove that a certain weight had been warranted. " There is no
doubt," said Lord Ellenborough, C. J., " that the parol evidence
was properly rejected. The purchaser ought to have had it re-
duced into writing at the time, if the representation then made
as to the quantity swayed him to bid for the lot. If the parol
evidence were admissible in this case, I know of no instance
where a party may not by parol testimony superadd any term to
a written agreement, which would be setting aside all written
contracts, and rendering them of no effect. There is no doubt
that the warranty as to the quantity of the timber would vary
the agreement contained in the written conditions of sale." ^-V On
the other hand, the distinction between a dispositive and a non-
dispositive writing is illustrated by a later case, which decided
that unsigned conditions of sale are only in the nature of a per-
sonal memorandum, v/hich may be varied at any time before the
sale by an express notice to a purchaser.^
§ 923. In a dispositive document, so far as concerns the parties
to it, the settled terms, as we have seen, cannot be Dispositive
varied by parol, because these terms were mutually ac- may "e^a-
cepted for the purpose of disposing of rights in certain gjjan''ers
relations JC It may happen, however, that a document ^y P*™!.
may be dispositive as to the parties, and non-dispositive as to all
other persons. The party uttering a document (e. g. a power
of attorney or a promissory note) prepares it deliberately in
respect to all persons who through it may enter into business re-
lations to him ; but other persons are not contemplated by him,
nor is the writing prepared to bind him as to such persons who
would in no way be bound to him. In respect to strangers,
therefore, documents have usually no binding force ; and hence
it has been held that a stranger, against whom a deed or other
writing is brought to bear on trial, may show by parol evidence
mistakes in such writing. The rule forbidding the variation of
1 Powell V. Edmunds, 12 East, 6. " Eden v. Blake, 13 M. &. W. 614.
157
§ 923.]
THE LAW OF EVIDENCE.
[book II.
writings by parol applies only to parties and privies ; and noth-
ing in the rule protects writings, not records, or public docu-
ments, from attack by strangers.^ Even a party executing such
a writing may correct by parol its mistakes, when the issue is
with a third person.^
1 Supra, § 176; infra, §§ 1078,
1155; R. <;. Cheedle, 3 B. & Ad. 838;
E. V. Olney, 1 M. & Sel. 387 ; K. «.
Wiokham, 3 A. & E. 517; Barreda v.
Silsbee, 21 How. 146 ; Woodman v.
Eastman, 10 N. H. 359; Edgerly v.
Emerson, 23 N. H. 555; Furbush v.
Goodwin, 25 N. H. 425; Spaulding v.
Knight, 116 Mass. 148; Rose v. Taun-
ton, 119 Mass. 99 ; New Berlin v.
Norwich, 10 Johns. R. 229; Thomas
V. Truscott, 53 Barb. 200; McMasters
V. Ins. Co. 55 N. Y. 233 ; Dempsey v.
Kipp, 61 N. Y. 471 ; Krider v. Laf-
ferty, 1 Wharton R. 314 ; Sourse v.
Marshall, 23 Ind. 194 ; McDill v.
Dunn, 43 Ind. 315; Stowell v. El-
dred, 39 Wise. 614; Reynolds u. Mag-
ness, 2 Ired. L. 26 ; Smith t>. Conrad,
15 La. An. 579 ; Blake r. Hall, 19 La.
An. 49; Smith v. Moynihan, 44 Cal.
54; Hussman v. Wilke, 50 Cal. 250.
See, for other eases, infra, §§ 1041,
1043, 1047-48, 1078, 1155.
" Van Eman v. Stanchfield, 10
Minn. 255; Strader v. Lambeth, 7 B.
Mon. 589.
" The rule that parol testimony may
not be given to contradict a written
contract is applied only in suits be-
tween the parties to the instrument or
their privies. The parties to a writ-
ten instrument have made it the au-
thentic memorial of their agreement,
and for them it speaks the whole truth
upon the subject matter. It does not
apply to third persons, who are not
precluded from proving the truth,
however contradictory to the written
statements of others. Strangers to
the instrument, not having come into
this agreement, are not bound by it,
168
and may show that it does not dis-
close the very truth of the matter.
And as, in a contention between a
party to an instrument and a stranger
to it, the stranger may give testimony
by parol differing from the contents of
the instrument, so the party to it is
not to be at a disadvantage with his
opponent, and he, too, in such a case,
may give the same kind of testimony.
Badger v. Jones, 12 Pick. 371; Rey-
nolds V. Magness, 2 Iredell, 26." Fol-
ger, J., McMasters v. Insurance Co.
55 N. Y. 233.
" The rule that parol evidence is
inadmissible to vary the terms of a
valid written instrument would have
been applicable. A stranger to the
contract, however, cannot invoke this
rule. 1 Greenleaf on Evidence, §
279." Dwight, C, Dempsey et al.
ti. Kipp, 61 N. Y. 471.
" The rule of evidence that where
the parties to a contract have reduced
their agreement to writing, parol evi-
dence shall not be received to alter or
contradict the written instrument, ap-
plies to controversies between the par-
ties and those claiming under them.
The parties have constituted the writ-
ten instrument to be the authentic
memorial of their contract; and he-
cause of this compact the instrument
must be taken, as between them, to
speak the truth and the whole truth
in relation to its subject matter. But
strangers have not assented to this
compact, and therefore are not bound
by it. When their rights are con-
cerned, they are at liberty to show
that the written instrument does not
disclose the full or true character of
CHAP. Xn.] DOCUMENTS MODIFIED BY PAROL. [§ 924.
§ 924. Before the question of variation by parol comes up, the
■whole context of the document in litigation must be con- whole doc-
sidered.^ If a word in one place be ambiguous, the am- ^g"be
biguity may be solved by recurrence to another part of considered,
the document in which the word is substantially defined.^ For
instance, if the word " close " be in dispute, in construing a
will, evidence may be received, if the word was only used once,
to show that, in the county where the property was situate, it
denoted a farm ; but if the word were found in other parts of the
will, in any one of which this enlarged meaning could not be ap-
plied to it, such evidence would be rejected, as the court would
then see that the testator had used the word in its ordinary
sense, as denoting an inclosure.^ Or, to borrow another illustra-
tion, the word "month," which denotes at law a lunar month,
may be shown by its use in other portions of the same document
to mean a calendar month.* It has "also, in application of the
same rule, been held that in aid of ambiguities in the disposing
parts of a deed, the recitals may furnish a test for discovering
the real intention of the parties, and for the determining the
true meaning of the language employed.^
It has sometimes been said that words are to be determined in
their primary sense,^ unless it appear that they are used in a tech-
the transaction. And if they be then the deed. They must be made out by
at liberty when contending with a independent proof. Tallman «. White,
party to the transaction, he must be 2 N. Y. 66; Williams v. Payton, 4
equally free when contending with Wheat. 77; Beekman u. Bigham, 5 N.
them. Both must be bound by this Y. 366." Hunt, J., Mutual Ins. Co. w.
conventional law or neither. 2 Ired. Tisdale, 91 U. S. (1 Otto) 245. See
30. See, also, to the same point, supra, §176.
Krider v. Lafferty, 1 Wharton R. 314, » Supra, § 619 ; infra, § 1103.
and Edgerly v. Emerson, 3 Foster R. ^ Bateman v. Roden, 1 Jones & L.
564." People v. Anderson, 44 Cal. 65, 856.
Wallace, C. J. " It has been held » Taylor's Ev. § 1032 ; Richardson
that a comptroller's deed for the non- v. Watson, 4 B. & Ad. 787, 799, per
payment of a tax due the state is not Parke, J. ; 1 N. & M. 575, S. C.
even prima facie evidence of the facts * Lang v. Gale, 1 M. & Sel. Ill ; R.
giving him the right to sell, such as v. Chawton, 1 Q. B. 247.
the assessment and non-payment of ^ Lee v. Pain, 4 Hare, 218.
the tax, although they are recited in ' Mallan v. May, 13 M. & W. 517 ;
the deed, and this deed is in com- Robertson v. French, 4 East, 135;
pliance with the statute. These facts Ford v. Ford, 6 Hare, 490 ; Gray v.
must have existed to give a right to Pearson, 6 H. of Lords Cas. 106 ;
sell; but they are not established by Abbott ». Middleton, 7 H. of L. Cas.
159
§ 925.] THE LAW OF EVIDENCE. [BOOK U.
nical sense, in which case the latter sense is to control.^ But as
most difficulties of construction arise from words having several
senses, it is a petitio principii to say that a particular sense is
primary, and is therefore to prevail. The only course is to
collect the sense from the whole document, and if this cannot
be done, to resort to parol proof, in the mode hereafter pre-
scribed.
§ 925. It often happens that a conflict may exist between the
Written written and the printed conditions of a contract exe-
morf^ °* cuted on a printed form, in which the blanks are filled
uian''^' up in writing. If so, it is not to be forgotten that
printed. parties using a printed form are often careless as to its
terms, signing it as a matter of course ; and, independently of
this, it is to be supposed that written conditions, specially intro-
duced by them, would peculiarly exhibit their intention.^ " If,"
said Lord Ellenborough, " the instrument consists partly of a
printed formula and partly of written words, and any reason-
able doubt is felt as to the meaning of the whole, the written
words are entitled to have greater weight than those which are
printed."^ To this, however, Crompton, J., in 1864,^ adds: "I
do not find it anywhere laid down that, unless we can see some
inconsistency, we can reject the printed words because there are
lines filling up the blanks." And Blackburn, J., says further :
" When there are mere formal and general words which are al-
ways put into contracts and are customary terms, and there are
other special and peculiar words, I think that when one is to
overpower the other and have most weight, that probably we
should say that the special terms which a man has invented for
himself and put into the contract, have been more considered
and more thought of than those merely ordinary words, and no
doubt these printed forms are customary, and consequently the
written terms would be more considered by him ; and if they
conflict and cannot be reconciled, then the written terms, those
mere special terms thought of by himself, may be considered to
68; Gordon v. Gordon, L. K. 5 H. L. per Ellenborough, C. J., Young v.
254. Grote, 4 Bing. 263.
1 Shore v. Wilson, 9 CI. & F. 525 ; » Gumm v. Tyrie, 33 L. J. N. S. Q.
Doe V. Perratt, 6 M. & Gr. 842. B. 108, 111 ; Jessell «. Bath, L. R. 2
2 Robertson i>. French, 4 East, 136; Ex. 267.
160
CHAP. XII.] DOCUMENTS MODIFIED BY PAROL.. [§ 927.
be more thought of, and consequently to have more weight by
him."i
§ 926. We shall hereafter see that receipts,* bills of lading,^ and
subscription papers,* are, as between the parties, with- informal
drawn from the operation of the rule ; such writings ™einoran-
being memoranda, hastily given, and by business usage eluded
treated as provisional. That they may be explained ationof
and contradicted by parol proof is hereafter abun-
dantly shown : and the same liberty exists as to informal, short-
hand memoranda.^ Thus in selling a chattel whose value is
under the minimum of the statute of frauds, an auctioneer is
not bound by the description of the article contained in the un-
signed printed catalogue ; but if, when the article was put up to
auction, he publicly stated in the hearing of the purchaser that
the description was incorrect, he will be entitled to a verdict for
the price on giving parol proof of such statement.^ Again,
where a person, after having agreed to hire a horse, had given
the owner a card, on which he had written in pencil, " Six weeks
at two guineas, W. H.," the owner was allowed to prove by
parol evidence an additional term of the contract, namely, that
all accidents occasioned by the shying of the horse should be at
the risk of the hirer.^ The occupation and payment of rent of
a tenement, also, may be proved orally on an issue of settlement
(the fact there being whether the tenant paid rent), although
there was a written lease giving other terms.^
§ 927. The first question to determine, in construing a docu-
ment, is whether there is a document to construe, paroi evi-
Hence it is always admissible to show by parol that a m^"sfbi* to
document was conditioned on an event that never oc- ^^"Z ''""""
ment was
curred.^ " Parol evidence," argues Archibald, J., in a notexe-
1 See, also, Alsager v. Dock Co. 14 Lindlay v. Lacy, 17 C. B. (N. S.)
M. & W. 799. 587; Pym v. Campbell, 6 E. & B. 370;
" Infra, § 1064. Gudgen v. Besset, 6 E. & B. 986; Lis-
» Infra, § 1070. ter v. Smith, 3 Sw. & B. 282; Stanton
* Infra, § 1068. v. Miller, 65 Barb. 58 ; Barker v. Pren-
* Lockett II. Necklin, 2 Ex. R. 93. tiss, 6 Mass. 434; Rennell v. Kimball,
« Eden v. Blake, 13 M. & W. 614. 5 Allen, 356 ; Hildreth v. O'Brien, 10
' Jeffrey v. Walton, 1 Stark. R. Allen, 104 ; Robertson v. Evans, 3 S.
267. C. 330 ; Butler v. Smith, 35 Miss. 467 ;
8 R. V. Hull, 7 B. & C. 611. Treadwell v. Reynolds, 47 Cal. 171.
» Davis V. Jones, 17 C. B. 625; Infra, § 934.
vol,. 11. 11 161
§ 927.] THE LAW OF EVIDENCE. [BOOK II.
cuted, or case determined in the high court of justice in No-
wmd?" ^ vember, 1875,^ " is not admissible to qualify or vary a
bonai. -yp^ritten document, but it is to establish a contempo-
raneous agreement, postponing the date of the operation of a
wi'itten agreement, which is in its terms apparently absolute.
Surely, then, parol evidence is admissible to show that the docu-
ment was never intended to operate as an agreement at all ; that
the parties never accepted the document as the record of any
contract. No doubt such evidence must be looked at most
scrupulously, and the jury must be perfectly satisfied that what
on the face of it is a valid, binding contract, was never so in-
tended by the man who drew it up. But here the jury were
satisfied of this ; they found that the document was only handed
to the plaintiff as being the terms upon which he might sell to
any responsible purchaser, and I think they had ample grounds
for their conclusion. Besides the defendant's denial, the plain-
tiff confessed that he was an architect and surveyor, and had not
£60,000 in the world ; yet if this were a contract, he is bound
to pay down £60,000 for the mere good will of the pianoforte
business. Many other circumstances show that the plaintiff did
not intend to purchase the concern himself, but only to find a
purchaser. No doubt the defendant's language is somewhat un-
fortunate in this document, but we must take it now that he did
not mean what he appears to say Parol evidence is ad-
missible to show that there never was, in fact, any agreement
at all. This is what Chief Justice Erie says in Pym v. Camp-
bell: ^ 'The distinction is between admitting parol evidence
to vary an agreement, and to show that what purports to be an
agreement has in truth never become so.' Rogers v. Hadley '
is not so strong in its facts, but the same doctrine is as clearly
laid down. So again in Wake v. Harrop* the same law is laid
down ; while Mackinnon's case ^ is stronger than any. There
the issue was on a plea of non assumpsit, as here. No plea
of fraud could be placed on the record, as the bill was held by a
purchaser before maturity for value and without notice. But it
was decided that Mr. Mackinnon was not liable, though he had
' Clever v. Kirkman, 24 W. R. 169; » 2 H. & C. 227.
83 L. T. 672. * 6 H. & N. 768.
" 6 E. & B. 870. « L. R. 4 C. P. 784.
162
CHAP. XII.j DOCUMENTS MODIFIED BY PAROL. [§ 928.
indorsed the bill, because he never intended to indorse a bill.
He was induced to put his name to the paper because he was told
it was a guarantee ; his mind never went with his act ; hence he
never contracted, and the plea of non assumpsit was proved.
That is precisely the case here. From this paper it would ap-
pear that the defendant had agreed to sell his business to the
plaintiff on the terms mentioned. But he never did so agree.
Parol evidence is not admissible to vary the terms of a written
contract, but it is to show that no contract ever existed of which
they were the terms." ^ Parol evidence is admissible, therefore,
to adopt one of Mr. Stephen's exceptions,^ to prove " the exist-
ence of any separate oral agreement, constituting a condition
precedent to the attaching of any obligation under any contract,
grant, or disposition of property."^
§ 928. If a document be signed by one party, in consequence
of a parol agreement by the other party, which parol
agreement is not performed, then it follows, from what dence ad-
has been said, that the party so signing may set up, ^ove'^tha't*
as against the other party, the non-performance of document
the parol agreement.* So it is admissible, in an ac- tioned on a
tion against a landlord for breach of contract, for the formed
tenant to prove that he had been induced to sign the
lease in consideration of the landlord's verbal promise that a
barn should be built upon the land before harvest.^ So, also,
' See to same efifect, Leppoc v. These cases settle, beyond all qnes-
Bank, 32 Md. 136 ; Blake v. Coleman, tion, that, when a promise is made by
22 Wise. 415. See, however, Wemple one party in consideration of the exe-
u. Knopf, 15 Minn. 440. More fully cution of a written instrument by the
infra, § 1067. other, it may be shown by parol evi-
2 Evidence, art. 90. dence. It is no answer to this to say
» To this he cites Pym v. Campbell, that the jury may have found for the
6 E. & B. 370; Wallis v. Littell, 11 C. defendant on the evidence, upon the
B. (N. S.) 369. ground that the plaintiff had pre-
* See authorities cited §§ 908, 931. vented the defendant from fulfilling
' Shughart v. Moore, 78 Penn. St. his contract to build the barn. How
469. In this case the court said : — can we say that this was the point
" The cases of Weaver v. Wood, 9 upon which the verdict was rendered,
Barr, 220, and Powelton Coal Co. v. when both points were distinctly sub-
McShain, 25 P. F. Smith, 238, are full mitted, and when a very material part
to the point that the offer in evidence of the plaintiff's evidence upon one of
complained of in the first assignment them was excluded from the consider-
of error ought to have been received, ation of the jury?
163
§ 929.] THE LAW OF EVIDENCE. [BOOK U.
parol proof has been received to show that a sale under a written
instrument was to be by sample ; ^ and to establish a condition,
attached to a sale, that the vendor would not ply his trade in the
same neighborhood.^
§ 929. It is true that this exception must be strictly guarded.
It is ordinarily inadmissible, for instance, for a party, sued on
a writing for the payment of money on a particular day, to prove
a parol agreement that the time of payment should be extended
to a subsequent day.^ So it is inadmissible, in a suit on a policy
of insurance, where the limits of the voyage are specifically ex-
pressed, for the insurer to put in evidence a parol agreement that
the risk was not to commence until the vessel reached an inter-
mediate port.* Again, where the lease of a mine settles a price
for the coal mined, it is inadmissible to prove by parol that the
lessee agreed to mine all that he could, the lease containing no
such provision.^
It has even been held inadmissible, in apparent conflict with
the positions heretofore and subsequently expressed, to prove by
parol that an absolute written engagement is only to be enforced
on a contingency,^ though this limitation is only effective in
strictly common law suits, as in equity such evidence is receiv-
able. The interposition of fraud, actual or constructive, would
in any view make such proof legitimate. If it be adequately
established that a party was induced to sign a contract by
fraudulent parol representations that the contract was only to
he contingently operative, then, upon such party himself doing
equity, he will be protected from the enforcement of such con-
tract. And the relief that would be given in this respect by a
chancellor will be given by a common law court administering
equitable remedies. In such case, a party who has been fraudu-
lently induced to sign an instrument, by the other party holding
1 Pike V. Fay, 101 Mass. 134. « Leslie v. De la Torre, 12 East,
" Pierce v. Woodward, 6 Pick. 583. See Weston v. Ernes, 1 Taunt.
206. 115.
« Spartali v. Beneoke, 10 C.B. 212; ^ j^ygn „_ Miller, 24 Penn. St. 392.
Field V. Lelean, 6 H. & N. 627 ; Spring » Abrey v. Crux, L. R. 5 C. P. 37 ;
V. Lovett, 11 Pick. 417; Allen v. Fur- Adams e, Wordley, 1 M. & W.374;
bish, 4 Gray, 504 ; Coughenour v. Foster v. Jolly, 1 C, M. & E. 703 ;
Suhre, 71 Penn. St. 464. See, as to Woodbridge v. Spooner, 3 B. & Aid.
promissory notes, infra, §§ 1059-1062. 233.
164
CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 931.
out by parol certain material conditions, may prove such condi-
tions as a defence.^ In fact, the qualification, " unless there be
fraud," is usually introduced into the statement of the rule, that
parol evidence is inadmissible to prove that a written instrument
cannot be made dependent on an unwritten condition.^
§ 930. It may be proved by parol that the document, if meant
to operate inter vivos, was never duly delivered, for this want of
lies at the root of the question as to whether the doc- er^ maybe
ument, in such case, is operative. Hence it may be •'"^f'^j^^
shown by parol that a writinsr was not delivered, re- sothatdoc-
. . „ , , . . ument 13
maining an escrow ; ^ or, as has been seen, that it was only to go
not to go into effect until an event which never hap- on a con-
pened.* A party, however, who acknowledges delivery, ''"senoy.
cannot, without proof of fraud, contradict the acknowledgment,
on the ground that the instrument was but an escrow,^ though
the averment of time of delivery may be varied by parol." Ne-
gotiable paper, however, cannot be qualified by evidence of this
class, so as to affect innocent third parties,^ nor bonds, when the
proof contradicts the averments of the instrument, unless there
be proof of fraud or concurrent mistake.^ Possession of a deed,
it may be added, is presumptive proof of delivery,^
§ 931. It is therefore always admissible for a party to show
that his execution of the contract was induced by fraud Fraud or
or compulsion. Before the rules excluding parol testi- be shown
» See infra, § 1019 ; Union Mut. Ins. S. C. 330 ; Butler v. Smith, 35 Miss.
Co. V. Wilkinson, 13 Wall. 222. 457; Treadwell v. Reynolds, 47 Cal.
^ Pickering v. Dowson, 4 Taunt. 171. See Morrison v. Lovejoy, 6
779; Faucett v. Currier, 115 Mass. Minn. 319 ; and see infra, § 1067.
20 ; Wharton v. Douglass, 76 Penn. « Cocks v. Barker, 49 N. Y. 107.
St. 276. * Johnston v. McRary, 5 Jones (N.
» Murray v. Stair, 2 B. & C. 82; S. C), L. 369 ; Treadwell v. Reynolds,
C. 3 D. & R. 278 ; Stanton v. Miller, 47 Cal. 171. Infra, § 976.
65 Barb. 58 ; Beall v. Poole, 27 Md. ' See infra, § 1058.
645. See Ford v. James, 2 Abb. N. » Infra, § 1067. Black v. Shreve,
Y. App. 159 ; Demesmey v. Gravelin, 13 N. J. Eq. (2Bea3.) 455; Fulton v.
56 111. 93 ; Roberts v. MuUenix, 10 Hood, 34 Penn. St. 365 ; Geddy v.
Kans. 22. Stainback, 1 Dev. & B. Eq. 475.
* See supra, §§ 927-28; infra, 1067. » Gilbert v. Bulkley, 5 Conn. 262;
Davisv. Jones, 17 C.B. 625; Barker u. Philadelphia R. B. v. Howard, 13
Prentiss, 6 Mass. 434 ; Rennell v. Kim- Howard, 307 ; Warren v. Miller, 38
ball, 5 Allen, 356 ; Hildreth v. O'Brien, Me. 108 ; Reed v. Douthit, 62 111. 348.
10 Allen, 104 ; Robertson v. Evans, 3 Infra, §1313.
165
§ 931.J
THE LAW OF EVIDENCE.
[bookd.
by parol, mony to Vary documents can be applied, we must de-
to insan- termine whether a document legally exists. That it
* ^' exists must be shown by parol, and the proof of such
existence may be attacked by proof that the execution of the
document was a nullity, having been coerced by duress,^ or elic-
ited by fraud,^ or that through the other party's fraud material
parts of the contract were omitted or altered.^ For it is a settled
principle of equity, — a principle absorbed in the common law of
many jurisdictions, — that where a party is drawn into a contract
1 2 Inst. 482 ; Bull. N. P. 172; Col-
lins V. Blantern, 2 Wils. 341 ; S. C.
1 Smith's L. C. 310 ; Paxton v. Pop-
ham, 9 East, 421 ; Hibbard v. Mills,
46 Vt. 243 ; Knapp v. Hyde, 60 Barb.
80 ; Miller v. Miller, 68 Penn. St.-
486; Feller v. Green, 26 Mich. 70;
Seiber v. Price, 26 Mich. 518 ; Cad-
wallader v. West, 48 Mo. 483 ; Davis
V. Fox, 59 Mo. 125 ; Bane o. Detrick,
52 111. 19 ; Thurman v. Burt, 53 111.
129 ; Spaids v. Barrett, 57 III. 289 ;
Bosley v. Shanner, 26 Ark. 280; Dil-
ler V. Johnson, 37 Tex. 47 ; Cook v.
Moore, 39 Tex. 255 ; Olivari v. Men-
ger, 39 Tex. 76.
2 Kain v. Old, 2 B. & C. 634 ; Fil-
mer v. Gott, 4 Bro. P. C. 230; Rob-
inson V. Vernon, 7 C. B. (N. S.) 231 ;
Rogers V. Hadley, 2 H. & C. 227 ;
Dobell V. Stephens, 8 B. & C. 623;
Hotson V. Browne, 9 C. B. N. S. 442;
Haigh V. Kaye, L. R. 7 Ch. 469;
Barwick c English Joint Stock Bk.
L. R. 2 Ex. 259 ; Swift v. Winter-
botham, L. R. 8 Q. B. 244 ; Selden ».
Myers, 20 How. 506 ; Prentiss v. Russ,
16 Me. 30; Lull v. Cass, 43 N. H.
62; Montgomery v. Pickering, 116
Mass. 227 ; Franchot v. Leach, 5
Cow. 508 ; Koop v. Handy, 41 Barb.
454 ; Cobb v. Hatfield, 46 N. Y. 533;
Kinney v. Kiernan, 49 N. Y. 164;
Meyer v. Huneke, 55 N. Y. 412 ;
Christ u. Diffenbach, 1 Serg. & R. 464;
Campbell v. McClenachan, 6 Serg. &
R. 171 ; Maute v. Gross, 56 Penn. St.
166
260; Horn v. Brooks, 61 Penn. St.
407 ; Wharton v. Douglass, 76 Penn.
St. 273 ; Burtners v. Keran, 24 Grat.
42 ; Van Buskirk v. Day, 32 111. 260;
Mitchell V. McDougall, 62 111. 498 ;
Gage V. Lewis, 68 111. 613 ; Wray v.
Wray, 32 Ind. 126 ; Woodruffs. Gar-
ner, 39 Ind. 246; McLean v. Clark, 47
Ga. 24 ; Turner v. Turner, 44 Mo. 535 ;
Jamison v. Ludlow, 3 La. An. 492 ;
Thomas v. Kennedy, 24 La. An. 209 ;
Plant V. Condit, 22 Ark. 454 ; Grider
V. Clopton, 27 Ark. 244 ; Cook v.
Moore, 39 Tex. 255.
» Buck V. Appleton, 14 Me. 284;
Phyfe V. Warden, 2 Edw. N. Y. 47 ;
Partridge v. Clarke, 4 Penn. St. 166 ;
Fisher v. Deibert, 54 Penn. St. 460;
Powelton V. McShain, 75 Penn. St.
245; Chetwood v. Brittain, 1 Green Ch.
N. J. 438 ; Shotwell v. Shotwell, 24
N. J. Eq. 878 ; Wesley v. Thomas, 6
Har. & J. 24 ; Rohrabacher v. Ware,
37 Iowa, 85; Wade B. Saunders, 70
N. C. 270; Kennedy v. Kennedy, 2
Ala. 671 ; Blanchard v. Moore, 4 J. J.
Marsh. 471.
In Jackson v. Morter, 8 Weekly
Notes, 140, it was held that fraudu-
lent representations made by a pur-
chaser at sheriff's sale, whereby others
are dissuaded from bidding, constitute
sufficient ground for setting the sale
aside, even after the acknowledgment
of the sheriff's deed, provided the ap-
plication is made in time.
CHAP, xn.]
DOCUMENTS MODIFIED BY PAROL.
[§ 931.
by misrepresentation, he has his option of avoiding or enforcing
the contract. Not only the parties to the agreement are thus
affected, but the taint reaches all who are concerned in the fraud,
and applies not only where statements are made which are false
in fact, but where, although false in fact, they are believed to be
true by the person making them, if such person, in the due dis-
charge of his duty, ought to have known, or formerly knew and
ought to have remembered, that they were false.^ It is scarcely
necessary to add that proof of imbecility or of drunkenness on
1 " In the case where the false rep-
resentation is made hy one who is no
party to the agreement entered into
on the faith of it, the contract may be
avoided, and all that equity can then
do is to compel the person who made
the representation to make good his
assertion as far as may be possible.
In cases, however, where the false mis-
representation is made by a person
who is party to the agreement, the
power of equity is more extensive ;
there the contract itself may be set
aside, if the nature of the case and
condition of the parties will admit of
it, or the person who made the asser-
tion may be compelled to make it
good. The distinction between the
cases where the person deceived is at
liberty to avoid the contract, or where
the court will aflSrm it, giving him
compensation only, is not very clearly
defined. This question usually arises
on the specific performance of con-
tracts for the sale of property ; and
the principle which I apprehend gov-
erns the cases, although it is in some
instances of very difficult application,
and leads to refined distinctions, is
the following; namely, that if the rep-
resentation made be one which can be
made good, the party to the contract
shall be compelled or may be at lib-
erty to do so ; but if the representa-
tion made be one which cannot be
made good, the person deceived shall
be at liberty, if he pleases, to avoid
the contract. Thus, if a man misrep-
resents the tenure or situation of an
estate, — as if he sell an estate as free-
hold which proves to be copyhold or
leasehold, or if he describes it as sit-
uate within a mile of some particular
town, when, in truth, it is several
miles distant, — such a misrepresenta- '
tion, as it cannot be made true, would,
at the option of the party deceived,
annul the contract ; but if the prop-
erty be subject to incumbrances con-
cealed from the purchaser, the seller
must make good his statement and re-
deem those charges ; and even in the
cases where the property is subject to
a small rent not stated, or the rental
is somewhat less than it was repre-
sented, the court does not annul the
contract, but compels the seller to al-
low a sufficient deduction from the
purchase money. It does so on this
principle: that by this means he in
fact makes good his representation,
and that the statement made was not
such as in substance deceived the pur-
chaser as to the nature and quality of
the thing he bought. With respect
to the character or nature of the mis-
representation itself, it is clear that it
may be positive or negative; that it
may consist as much in the suppres-
sion of what is true, as in the asser-
tion of what is false ; and it is almost
needless to add that it must appear
that the person deceived entered into
the contract on the faith of it. To
167
§ 931.]
THE LAW OF KVIDENCE.
[book n.
part of one of the contracting parties may be received as tending
to show fraud in the other party .^
use the expression of the Koman law
(much commented upon in the argu-
ment before me), it must be a repre-
sentation dans locum contractui; that
is, a representation giving occasion to
the contract, the proper interpretation
of which appears to me to be the as-
sertion of a fact on which the person
entering into the contract relied, and
in the absence of which, it is reason-
able to infer, that he would not have
entered into it ; or the suppression of
a fact, the knowledge of which, it is
reasonable to infer, would have made
him abstain from the contract alto-
gether." Lord Romilly, M. K., in
Pulsford V. Richards, 17 Beav. 95.
Cf. Smith V. Kay, 7 H. L. Cas. 760,
as follows : —
" It is certainly permissible to give
evidence of a verbal promise made by
one of the parties, at the time of the
making of a written contract, where
such promise was used as an induce-
ment to obtain the execution thereof.
Campbell v. McClenachan, 6 S. & fi.
171. This rule is put upon the ground
that the attempt afterwards to take
advantage of the omission from the
contract of such promise, is a fraud
upon the party who was induced to
execute it upon such promise, and
hence he will be permitted to show
the truth of the matter. Clark v.
Partridge, 2 Barr, 13 ; Renshaw v.
Gans, 7 Barr, 117 ; Button v. Tilden,
1 Harris, 49." Gordon, J., Powelton
C. Co. V. McShain, 75 Penn. St. 245.
" The rule at common law was that
fraud could not be pleaded or given
in evidence as a defence to an action
on a specialty, unless it vitiated the
execution of the instrument, and that
the defendant in such an action was
not allowed to show that he was in-
duced to execute it by fraudulent rep-
resentation as to the nature or value
of the consideration. This rule, how-
ever, is materially modified by our
statute relating to negotiable instru-
ments, by which it is provided that in
actions upon bonds for the payment
of money or the performance of cov-
enants, as well as upon bills and
notes, it may be set up as a, defence
that the instrument was executed
without any good or valuable consid-
eration, or that the consideration has
failed in whole or in part.
" Under this statute it is competent
to show that the defendant was in-
duced to execute the instrument by
false and fraudulent representations,
as that is one mode of showing a fail-
ure of consideration. White v. Wat-
kins, 23 111. 482 ; Greathouse o. Dun-
lap, 3 McLean, 304 ; Case v. Bang-
ton, 11 Wend. 108 ; Leonard v. Bates,
1 Blackford, 172; Fitzgerald v. Smith,
1 Ind. 810 ; Chambers v. Gaines, 2
Greene, 320. And, for this purpose,
it may be shown that the considera-
1 Affleck V. Affleck, 3 Sm. & G. 394 ;
Molton V. Camroux, 4 Exch. 17 ;
Rhodes v. Bate, L. R. 1 Ch. 262 ;
Hovey v. Chase, 52 Me. 305 ; Staples
V. Wellington, 58 Me. 453 ; Farnam
V. Brooks, 9 Pick. 220 ; Bond v. Bond,
7 Allen, 1; Warnook v. Campbell, 25
N. J. Eq. 485 I La Rue v. Gilkyson, 4
Barr, 375; Reals v. See, 10 Barr, 56;
168
Case V. Case, 26 Mich. 484; Baldwin
V. Dunton, 40 111. 188 ; Wiley i>. Ew-
alt, 66 111. 26; Phelan v. Gardner, 43
Cal. 306 ; Parker v. Davis, 8 Jones
N. C. 460. See Chitty on Cent. U2;
Story on Contracts, § 27; and for de-
tails of cases, 1 Wh. & St. Med. Jur.
(1873) §§ 9-11.
CHAP. XII.] DOCUMENTS MODIFIED BY PAROL.
[§ 932.
§ 932. The party seeking to avoid a contract on ground of
fraud must himself be free from all suspicion of fraud, ^ .
must have been reasonably free from negligence, must such case
. ,1 T , , -. complain-
act promptly, and must return or otter to return any ant must
advantages he may have secured from the contract.^ and have a
Thus where a party signs a paper without either read- s'™''scase.
ing it, or, if he cannot read, asking to have it read to him, he
cannot obtain relief .^ The evidence of fraud, in order to vacate
a solemnly executed instrument, must be, it need scarcely be
added, clear and strong ; ^ and this rule is the more important
since the passage of the statute enabling parties to testify in
their own cases.*
tion expressed in the instrument is not
the real consideration which induced
its execution, but that it was, in fact,
entirely different. G. W. Ins. Co. v.
Rees, 29 111. 272. In that case, speak-
ing of the statute referred to, and ad-
mitting parol evidence to explain the
consideration, it was said : ' It is im-
possible that this statute can be made
effective in any other way than by re-
ceiving such proofs ; and in receiving
them, the old rule, that written con-
tracts cannot be varied by parol, be-
comes, in all such cases, ineffective.
" ' The ruling of this court, there-
fore, in Lane v. Sharpe, 3 Seam. 566,
and in all subsequent cases founded
upon that, is to be considered as hav-
ing no application to a case where no
consideration, or a partial or total fail-
ure of consideration, is properly
pleaded in an action brought upon an
instrument of writing for the payment
of money or property, or the perform-
ance of covenants, or conditions to an
obligee or payee.'
"No necessity is now perceived to
overrule that case, or modify the rule
there announced." Scholfield, J.,
Gage V. Lewis, 68 111. 613.
1 Infra, § 1019 ; Sanborn v. Batchel-
der, 51 N. H. 426 ; Manahan u.Noyes,
52 N. H. 232 ; Bruce v. Davenport, 1
Abb. (N. T.) App. 233; Spurgin v.
Traub, 65 111. 170; Lane v. Latimer,
41 Ga. 171.
When an educated person, who, by
very simple means, might have ascer-
tained what are the contents of a deed,
is induced to execute it by a false
representation of such contents, it is
doubtful whether he may not, by exe-
cuting it negligently, be estopped be-
tween himself and a person who inno-
cently acted upon the faith of the deed
being a valid one. Per Mellish, L. J.,
Hunter v. Walters, L. R. 7 Ch. 75. See
Androscoggin Bank v. Kimball, 10
Cush. 373, quoted infra, § 1243.
2 Hallenbeck v. De Witt, 2 Johns.
E. 404 ; Greenfield's Est. 14 Penn. St.
489; Weisenberger «. Ins. Co. 56 Penn.
St. 442; 2 Kent's Com. 646; 1 Story's
Eq. § 200 a. Infra, § 1243.
8 See infra, § 1019.
* Faucett v. Currier, 109 Mass. 79 ;
S. C. 115 Mass. 27; Martini). Berens,
67 Penn. St. 459. In Penns. R. R.
V. Sharp , Sup. Ct. Penns. 1876 ; 3
Weekly Notes, 45, Sharswood, J.,
said: "It has more than once been
held that it is error to submit a ques-
tion of fraud to the jury upon slight
parol evidence to overturn a written
instrument. The evidence of fraud
must be clear, precise, and indubi-
169
§ 936.J THE LAW OF EVIDENCE. [BOOK II.
§ 933. We have just seen that parol evidence of fraud, duress,
Concurrent and insanity, is admissible to invalidate a writing, on a
mLy*be °^^® being clearly shown. In the same light may be
proved to viewed contracts based on concurrent mistake. In fact,
invalidate
document, for a party to seek to take advantage of a contract based
on a concurrent mistake is itself a fraud, which equity will cor-
rect.i
§ 934. Mistake by one party alone, however, unless there be
fraud, is no ground for rescission ; ^ and even where the mistake
is concurrent, the complainant must have a strong case and be
ready to do equity.^ And in all cases of this class, the fraud or
concurrent mistake must be clearly shown.*
§ 935. So, by the same reasoning, it may be proved that the
contract embodied by the writing is illegal and there-
of docu- fore void. If void, it is not a contract ; to exclude
be proved parol evidence because it is a contract is to assume
y pare . ^j^^ very point in litigation.^ Nor can any form of
instrument of indebtedness preclude a debtor from setting up
usury .8 But the implication of usury may be rebutted by show-
ing that the reservation of excess was a mistake in fact.'
§ 936. Intention declared orally is not necessarily that which
table, otherwise it should be withdrawn tlefold, 3 M. & Gord. 94 ; Doe v.
from the pry. Stine v. Sherk, 1 W. Ford, 3 A. & E. 649; Shackford v.
& S. 195; Irwin v. Shoemaker, 8 W. Newington, 46 N. H. 415; Wyman v.
& S. 75 ; Dean v. Fuller, 4 Wright, Fiske, 3 Allen, 238; Pratt v. Lang-
474. Since parties are allowed to tes- don, ^7 Mass. 97; Martin w. Clarke, 8
tify on their own behalf, it has become R. I. 389 ; Leppoc v. Bank, 32 Md.
still more necessary that this impor- 136; Bowman u. Torr, 3 Iowa, 571;
tant rule should be strictly adhered to Williams v. Donaldson, 8 Iowa, 109;
and enforced." Corbin v. Sistrunk, 19 Ala. 203 ;
1 See fully infra, § 1021; Brioso v. Fletcher's Succession, 11 La. An. 59;
Ins. Co. 4 Daly (N. Y.), 246; Bryce Lazare v. Jacques, 15 La. An. 599;
V. Ins. Co. 55 N. Y. 240; Nelson v. Newsom v. Thighen, 30 Miss. 414.
Davis, 40 Ind. 366 ; Hearst », Pujol, Hence it is admissible to prove that a
44 Cal. 230; Bridwell v. Brown, 48 written contract in form of a sale was
Ga. 179; Miller v. Davis, 10 Eans. really the security for a usurious loan.
541. Ferguson v. Sutphen, 8 111. 547.
" Infra, § 1028. « Chamberlain v. McClurg, 8 Watts
» See infra, § 1019 et seq. & S. 31.
* Supra, § 933 ; infra, § 1022. ' Griffin v. N. J. Co. 11 N. J. Eq.
* Collins V. Blantern, 2 Wils. 841 ; (3 Stock.) 49.
1 Smith's L. C. 810 ; Benyon v. Lit-
170
CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 936.
controls a party in executing an instrument. Many persons are
chary in expressing their real intentions. Others like intent can-
to hint at tentatory schemes, which they have no fixed p°lyei to
purpose of realizing; others may wish to mislead, some- affect writ-
times from policy, sometimes from mere crookedness, ing.
Old and childless persons, who have wills to make, for instance,
are apt to throw out expressions of intended bounty which they
are so far from effectuating that it is a common observation
that the will that is promised is not the will that is made.
Then, again, my intention a moment ago, and that which I de-
clared as my intention, may not be my intention now. The
mind changes rapidly ; caprice, or a new though sudden light,
may bring about an immediate and real change of my purposes.
Or, supposing my mind remains unchanged, to permit my pri-
vate intention to overrule the natural and obvious meaning of
my written engagement, would be to give to secret mental res-
ervations an ascendency destructive of fair business dealing.
And even supposing there be no such taint possible, to permit
the treacherous medium of memory as to conversation to super-
sede the more exact medium of a written statement, would be
to subordinate the superior to the inferior mode of proof. For
these and other reasons the courts have united, with limitations
to be hereafter expressed, in holding that the obvious meaning of
a dispositive document cannot be varied by proof of the writer's
intent.i
> Shore v. Wilson, 9 CI. & F. 525, v. Hummer, 2 C. E. Green N. J. 269
556, 565 ; Peel, in re, L. E. 2 P. & D. Heilner v. Imbrie, 6 Serg. & R. 401
46 ; Hunt v. Eonsmanier, 8 Wheat. Ellmaker v. Ins. Co. 5 Penn. St. 183
174; Shankland v. Washington, 5 F.et. Wier v. Dougherty, 27 Penn. St. 182
390; Elder u. Elder, 10 Me. 80; Ev- Albert v. Ziegler, 29 Penn. St. 50
eleth V. Wilson, 15 Me. 109 ; Wiggin Lloyd v. Farrell, 48 Penn. St. 73 ; Kirk
t7. Goodwin, 63 Me. 389 ; Fitts v. v. Hartman, 63 Penn. St. 97 ; Wesley
Brown, 20 N. H. 393 ; Delano v. v. Thomas, 6 Har. & J. 24; McCler-
Goodwin, 48 N. H. 203 ; Ripley v. nan v. Hall, 33 Md. 293; Stevens v.
Paige, 12 Vt. 353; Fitzgerald!). Clark, Hays, 8 Ind. 277; Oiler v. Bodkey,
6 Gray, 393; Perkins v. Young, 16 17 Ind. 600; Woodall v. Greater, 51
Gray, 389; Fitchburg v. Lunenburg, Ind. 639; Abrams v. Pomeroy, 13 111.
102 Mass. 358 ; Cook v. Shearman, 103 133 ; Robinson v. Magarity, 28 111. 423 ;
Mass. 21 ; Sayre ». Peck, 1 Barb. 464; McCloskey v. McCormiok, 37 111. 66 ;
Spencer v. Tilden, 5 Cow. 144; Long McCormick v. Huse, 66 111. 315; Hart-
V. R. E. 50 N. Y. 76 ; Perrine v. ford Ins. Co. v. Webster, 69 111. 392;
Cheeseman, 6 Halst. 174 ; Huffman Pilmer v. Branch Bank, 16 Iowa, 321 ;
171
§ 937.]
THE LAW OF EVIDENCE.
[book ir.
§ 937. Yet, where a description in a document is equally appli-
otherwise Cable to two Or more objects, the declarations of the an-
as to am- ^jj jjj ^g received to explain to which of these ob-
mguous ./ '■
terms. jects the description refers. Intention, thus proved, is
subject to the drawbacks mentioned in the last section. It may
have changed since its last expression ; it may not have been sin-
cere ; yet it is to be considered in determining what the language
in controversy really means. This, it should be remembered, is
the issue. The issue is not the real meaning of the parties.
That is something which we have no means of determining, and
which is so complex, and often so volatile, even if conceivable,
that we would have no means of executing it could it be ascer-
tained. We are restricted, therefore, to the interpretation of
the language; and proof of intention is only admissible when,
in cases of ambiguity, intention is useful in enabling us to dis-
cover what the language means.^ " You cannot vary the terms
of a written instrument by parol evidence, that is a regular rule ;
but if you can construe an instrument by parol evidence, when
that instrument is ambiguous, in such a manner as not to contra-
dict, you are at liberty to do so." ^ Thus where on the face of a
Ward V. Ledbetter, 1 Dev. & B. Eq.
'496 ; Delaaey v. Anderson, 54 Ga.
586; Turner v. Wilcox, 54 Ga. 593 ;
Kennedy v. Kennedy, 2 Ala. 571 ;
Sanford v. Howard, 29 Ala. 684 ; Sel-
by tJ. Friedlander, 22 La. An. 281 ;
Herndon u. Henderson, 41 Miss. 584;
Cocke V. Bailey, 42 Miss. 81 ; Peers
V. Davis, 29 Mo. 184; Joliffe u. Col-
lins, 21 Mo. 338; State u. Letaivre, 53
Mo. 470; Ruiz v. Norton, 4 Cal. 359 ;
Price V. Allen, 9 Humph. 703 ; Har-
rell V. Durrance, 9 Fla. 490.
1 Doe V. Hiscocks, 5 M. & W. 363;
Chicago V. Sheldon, 9 Wall. 50 ; At-
lantic R. R. Co. V. Bank, 19 Wall. 548;
Gray v. Harper, 1 Story R. 5 74 ; Fen-
derson v. Owen, 54 Me. 374; Stone
V. Aldrich, 43 N. H. 52 ; Lowry v.
Adams, 22 Vt. 160; Farmers' Bk. v.
Whinfleld, 24 Wend. 419; Howlett v.
Howlett, 56 Barb. 467; Gage v. Ja-
queth, 1 Lans. 207; Dent u. Ins. Co.
172
49 N. Y. 390 ; Von Keller v. Schult-
ing, 50 N. Y. 108 ; Stapenhorst v.
Wolff, 35 N. Y. Sup. Ct. 25; Collen-
der V. Dinsmore, 55 N. Y. 200; Con-
over V. Warden, 20 N. J. Eq. 266;
Havens v. Thompson, 26 N. J. Eq.
383 ; Armstrong v. Burrows, 6 Watts,
266; Helme v. Ins. Co. 61 Penn. St.
107; Fryer v. Patrick, 42 Md. 51;
Davis V. Shaw, 42 Md. 410; Ins. Co.
V. Troop, 22 Mich. 146 ; West. E. R.
V. Smith, 75 111. 497; Greene v. Day,
34 Iowa, 328 ; Poindexter v. Cannon,
1 Dev. Eq. 873; Ten-ell v. Walker, 69
N. C. 244; Jenkins v. Cooper, 60 Ala.
419 ; Am. Ex. Co. v. Schier, 55 111.
140; Baldwin v. Winslow, 2 Minn.
213; Wood v. Augustine, 61 Mo. 46;
Simpson v. Kimberlin, 12 Kans. 579;
Waymack v. Heilman, 26 Ark. 449 ;
Goodrich v. McClary, 3 Neb. 123.
2 Goldshede v. Swan, 1 Ex. 158,
Parke, B.
CHAP, xn.] DOCUMENTS MODIFIED BY PAROL. [§ 938.
document it is doubtful whether a memorandum at its foot is
part of it, evidence of the intention of the parties is admissible to
solve the doubt.^ An omitted inventory, also, referred to in a
deed, may be supplied by extrinsic proof ; ^ and a short-hand
memorandum may be by parol expanded.^ So where on the
face of a writing it is doubtful whether a principal or an agent is
primarily liable, parol proof may be received to settle the doubt.*
So where the issue is whether a bequest of stock is specific or
pecuniary, evidence may be received of the state of the testator's
funded property.* Where, also, the defendant agreed to pay
" $1700 lawful money of the United States, and |500 in an
order on W. and T." it was held that it was admissible to prove
that the order for $500 was for sashes, blinds, &c., in which W.
and T. dealt.^ As we shall hereafter see,^ the rule before us is
eminently applicable wherfe signs or terms of art are employed.^
" Where characters, marks, or technical terms are used in a par-
ticular business, unintelligible to persons unacquainted with such
business, and occur in a written instrument, their meaning may
be explained by parol evidence, if the explanation is consistent
with the terms of the contract."®
§ 938. When declarations of intention are admissible, under the
restrictions above stated, it is not necessary that they Deciara-
should be contemporaneous.^" It is elsewhere shown tention
1 Verzan v. McGregor, 23 Califor- ^ Hinnemann v. Kosenback, 39 N.
nia, 339. Y. 98.
« England v. Downs, 2 Beav. 523. ' Infra, § 972.
8 Kinney v. Flynn, 2 R. 1. 319. See ' Infra, §§ 938, 972.
infra, § 972. ° Allen, J., CoUender v. Dinsmore,
* Higgins V. Senior, 8 M. & W. 55 N. Y. 206, citing Dana v. Fiedler,
834; Trueman v. Loder, 11 A. & E. 2 Ker. 40; Barnard u. Kellogg, 10 Wal-
589 ; Beckman v. Drake, 9 M. & W. lace, 383; Robinson u. U. S. 13 Ibid.
79; Lerned v. Johns, 9 Allen, 419; 363; Wails v. Bailey, 49 N. Y. 464;
Ohio R. R. V. Middleton, 20 111.' 629; Attorney General v. Shore, 11 Simons,
and other cases cited infra, § 949 et 616. See, to same effect, Sweet v.
seq. Lee, 3 Man. & Gr. 452; Webster v.
« Atty. Gen. v. Grote, 2 Russ. & Hodgkins, 5 Fost. 128 ; Farmers' Bk.
Myl. 699, per Ld. Eldon; Wigr. Wills, v. Day, 13 Vt. 36 ; Stone v. Hubbard,
201, S. C; Boys v. Williams, 2 Russ. 7 Gush. 595; Colwell v. Lawrence, 38
& Myl. 689, per Ld. Brougham; Hor- Barb. 643; Hite v. State, 9 Yerg. 357.
wood V. Griffith, 23 L. J. Ch. 465 ; 4 Infra, § 972.
De Gex, M. & G. 709, S. C; Taylor, " Though see Thomas v. Thomas,
§ 1083. 6 T. R. 671.
173
§ 939.] THE LAW OF EVIDENCE. [BOOK H,
need not be ti,at declarations of a deceased predecessor in title are
contempo- . . . ^
raneous. admissible to affect his successors,^ and that declarations
of deceased relatives are admissible in questions of pedigree.^
But independently of these limitations, it is the better opinion
that the declarations of a deceased person, subsequent to the exe-
.cution of a document, signed by him, are admissible, in aid of
construction, in all cases in which contemporaneous declarations
would be received ; ^ and so, also, has it been held as to previous
declarations.* But such declarations must relate to the specific
writing in dispute.^
§ 939. To explain the meaning of a writing, in the true sense.
Evidence and with this limit, is simply to develop the real mean-
fo bring * ii^g of the instrument. In the largest sense, this office
meanbgof ^® performed by the attaching to words their proper
writings, meaning.® Hence punctuation may be' supplied by aid
of parol evidence as to intent ; "^ words that are blurred or defaced
may be deciphered by aid of the same evidence ; ^ foreign words
may be translated by interpreters,^ abbreviations expanded by
persons familiar with the objects described,^" and terms of art
defined by experts.^^ It is in accordance with the same principle
that ambiguities, in reference either to the persons affected by
the instrument or to the thing passed by it, may be explained by
parol evidence.^^
1 Infra, § 1156. rick v. Grant, 14 Me. 233; Gallagher
2 Supra, § 201. v. Black, 44 Me. 99; George v. Joy,
8 Doe V. Allen, 12 A. & E. 455. 19 N. H. 544 ; Hall v. Davis, 36 N.
* Doe V. Hiscocks, 5 M. & W. 369. H. 569; Holmes «. Crossett, 33 Vt.
5 Whitaker v. Tatham, 7 Bing. 116; Sutton n. Bowker, 5 Gray, 416;
628. Infra, § 1089. Chester Emery Co. v. Lucas, 112Mass.
' See supra, § 937. 424; Willis v. Hulbert, 117 Mass. 151;
' Graham I). Hamilton, 5 Ired. L. Hotchkissw. Barnes, 34 Conn. 27; Ely
428. Infra, § 972. v. Adams, 19 Johns. R. 313; Galena.
8 Fenderson v. Ov^en, 54 Me. 872. Brown, 22 N. Y. 37; Von Keller v.
» Ibid. 874. Supra, § 174. Schulting, 60 N. Y. 108 ; Block v. Ins.
" Whart. Grim. Law, § 405; Hite Co. 42 N. Y. 393; Dentu. Steamsh.Co.
u. State, 9 Yerg. 357. Infra, § 972. 49 N. Y. 890; Clinton o. Ins. Co. 45
" See supra, § 435; infra, § 972; N. Y. 454; Oliver v. Phelps, 20 N.J.
Pollen V. Le Roy, 30 N. Y. 549. L. 180; SufEern v. Butler, 21 N. J.
" Bank U. S. v. Dunn, 6 Pet. 51; E. 410 ; Com. «. Blaine, 4 Binn. 186;
Peisch V. Dickson, 1 Mason, 9; Heck- Russel v. Werntz, 24 Penn. St. 337;
scher v. Binney, 3 Wood. & M. 333 ; Chalfant v. Williams, 35 Penn. St.
Haven v. Brown, 7 Greenl. 421; Pat- 212 ; Crawford v. Morris, 5 Grat. 90;
174
CHAP. XU.] DOCUMENTS MODIFIED BY PAROL.
[§ 940.
§ 940. Extrinsic circumstances, also, in cases of ambiguity, are
of value in elucidating the true meaning.^ The court circum-
and jury, in interpreting what the writer meant, must Evidence to
put themselves, as far as evidence can enable them to P^^'f '"^"^
r^ ... . construc-
do so, in his position.^ Thus in a case already cited, t'on-
where it was doubtful what articles a written order was for, it
was held admissible to prove the business of the party drawn
Masters v. Freeman, 17 Oh. St. 323;
Barrett v. Stow, 15 111. 423; Clark v.
Powers, 45 111. 283; Facey v. Otis, 11
Mich. 213; Ins. Co. t>. Sharp, 22
Mich. 146; Corbett v. Berry hill, 29,
Iowa 157; Scott v. Blaze, 29 Iowa, 168;
Greene v. Day, 34 Iowa, 328; Craw-
ford V. Jarrett, 2 Leigh, 630; Wilson
t/. Robertson, 7 J. J. Marsh. 78 ; Ter-
rell V. Walker, 66 N. C. 244; Milling
V. Crankfield, 1 McCord, 258 ; Bowen
V. Slaughter, 24 Ga. 338; Crawford
tj. Brady, 35 Ga. 184; Paysant v.
Ware, 1 Ala. 160; Morrison v. Tay-
lor, 21 Ala. 779; Shuetze v. Bailey, 40
Mo. 69; Kimball v. Brawner, 47 Mo.
398 ; St. Louis Gas Light Co. v. St.
Louis, 48 Mo. 121; McPike v. All-
man, 53 Mo. 551; Shewalter v. Pir-
ner, 55 Mo. 218; Hancock v. Watson,
18 Cal. 137; Piper v. True, 36 Cal.
606; and see fully infra, §§ 942-950.
So facts of public notoriety relating to
a contract are to be presumed to be
known to the parties, and these facts
may be used in construing ambiguous
terms. Woodruff v. Woodruff, 52 N.
Y. 53. Intra, § 1243.
I Emery v. Webster, 42 Me. 204;
Grant v. Lathrop, 23 N. H. 67;
French «.. Hayes, 42 N. H. 30; Hotch-
kiss V. Barnes, 34 Conn. 27 ; Knight
V. Worsted Co. 2 Cush. 271 ; Phelps
V. Bostwick, 22 Barb. 314; Halsted v.
Meeker, 15 N. J. L. 136; Frederick
V. Campbell, 14 S. & K. 293; Bollin-
ger V. Eakert, 16 S. & E. 422; Car-
mony v. Hoober, 6 Penns. St. 305 ;
Martin v. Berens, 67 Fena. St. 463;
Katcliffe u. Allison, 3 Band. 537; Ham-
mam V. Keigwin, 39 Tex. 34.
2 Shore v. Wilson, 9 CI. Sc F. 556,
per Parke, B. ; Guy v. Sharpe, 1 Myl.
& K. 602, per Lord Brougham; Sweet
V. Lee, 3 M. & Gr. 466, per Tindal,
C. J. ; Drummond v. Atty. Gen. 2 H.
of L. Ca. 862, by Lord Brougham ;
Simpson v. Margetson, 11 Q. B. 32,
by Lord Denman; Taylor's Ev. §
1082.
"I apprehend that there are two
descriptions of evidence .... which
are clearly admissible for the purpose
of enabling a court to construe any
written instrument, and to apply it
practically. In the first place there is
no doubt that not only when the lan-
guage of the instrument is such as the
court does not understand, it is com-
petent to receive evidence of the proper
meaning of that language, as when it
is written in a foreign tongue ; but it
is also competent where technical
words or peculiar terms, or, indeed,
any expressions are used, which at the
time the instrument was written had
acquired an appropriate meaning,
either generally or by local usage, or
amongst particular classes
' ' This description of evidence is ad-
missible in order to enable the court
to understand the meaning of the
words contained in the instrument it-
self, by themselves, and without ref-
erence to the extrinsic facts on which
the instrument is intended to operate."
Parke, B., Shore v. Wilson, 9 CI. &
F. 555.
175
§ 940.] THE LAW OF EVIDENCE. [BOOK n.
on.i So, where in a partition between heirs, a right of way is
assigned to one of them, and it is doubtful which of two ways
are intended by the deed, extrinsic proof as to the character of
the ways is admissible to solve the doubt.^ Evidence, also, of
surrounding circumstances is admissible, to show that a guarantee
was intended to be a continuing one.^ So, such evidence has
been received to explain the meaning of the phrase " across a
country " in a steeple-chase transaction ; * that " a thousand "
means a hundred dozen ; ^ and that a contract to pay an actor so
much a week was a contract to pay only during the theatrical
season.® So, in a case elsewhere cited,'^ extrinsic evidence was re-
ceived to explain the meaning of the phrase, " Godly preachers of
Christ's Holy Gospel," and to show that, according to the usage
of a sect to which the grantor belonged, the grant was intended
for that sect. It has been held, also, admissible to introduce
proof of extrinsic facts to explain the local meaning of " good "
or " fine " barley,^ to indicate the amount implied in a con-
tract to buy " your wool " from a party ;^ and, generally, in all
cases where the signification of a particular phrase is unsettled
and variable in its nature, and where it is Uable to have dif-
ferent senses attached to it in different places, to elucidate such
meaning. But it is essential in such cases that the sense thus
sought should be of a public and popular kind ; and it will not be
allowable to show that a party used the term in a sense opposed
to its local and conventional usage. Thus, where a testatrix was
in the habit of treating certain shares as " double shares," evi-
dence of this was not allowed to influence the construction of
her will, Page Wood, V. C, saying, " I must take things to be
as I find them, and cannot allow particular expressions, said to
have been made use of by this testatrix, to prevail, when they
are not the general language universally applicable to the sub-
ject matter." i" It must be remembered, however, that "A
* Hinnemann v. Rosenback, 89 N. • Grant v. Maddox, 15 M. & W.
Y. 98. 737.
= French v. Hayes, 43 N. H. 30. » Shore v. Wilson, 9 CI. & F. 555.
' HefBeld u. Meadows, L. R. 5 C. ^ Hutchinson i-. Bowker, 3 B. &
P. 595. Ad. 278.
* Evans v. Pratt, 3 M. & G. 759. » Macdonald v. Longbottom, 28 L.
» Smith V. Wilson, 3 B. & Ad. J. Q. B. 293 ; 29 L. J. Q. B. 256.
278. 10 Millard v. Bailey, L. R. 1 Eq.
176
CHAP. Xn.] DOCUMENTS MODIFIED BY PAROL.
[§ 940.
written instrument is not ambiguous because an ignorant and
uninformed person is unable to interpret it. It is ambiguous
382; 35 L. J. Ch. 312; Powell's Evi-
dence (4th ed.) 420.
In connection with the positions of
the text, the following opinions will be
of value : —
" It is a rule of interpretation that
the intention of the parties to a con-
tract is to be ascertained by applying
its terms to the subject matter. The
admission of parol testimony for such
purpose does not infringe upon the
rule which makes a written instru-
ment the proper and only evidence of
the agreement contained in it. Thus,
for the purpose of identifying the sub-
ject matter to which the written con-
tract relates, parol testimony of that
which was in the minds of the parties,
and to which their attention was di-
rected at the time, may be given. It
may be shown that a sample, to which
the terms of the contract are applica-
ble, was exhibited or referred to in the
negotiation, and other statements of
the parties then made may be resorted
to. The sense in which the parties
understood and used the terms ex-
pressed in the writing is thus best as-
certained. Accordingly, it has been
recently held, in an action upon a
written contract relating to advertis-
ing charts, that verbal representations
as to the material of which the chart
was to be made and the manner in
which it would be published, although
promissory in their character, were ad-
missible. Stoops V. Smith, 100 Mass.
63 ; Hogins v. Plympton, 11 Pick. 97;
Miller v. Stevens, 100 Mass. 518."
Colt, J., Swett V. Shumway, 102 Mass.
367.
" In Macdonald i'. Longbottom, 1
E. & E. 978, the defendant by a writ-
ten contract had purchased of the
plaintiffs, who were farmers, a quan-
tity of wool, which was described in
VOL. II. 12
the contract simply as 'your wool.'
Some time previously a conversation
had taken place, in which the plain-
tiffs stated that they had a quantity
of wool, consisting partly of their own
clip, and partly of wool they had con-
tracted to buy of other farmers. In
an action for not accepting the wool,
this conversation was held admissible
in evidence, for the purpose of explain-
ing what the parties meant by the
term ' your wool.' Mumford v. Geth-
ing, 7 C. B. (N. S.) 305, will be found
equally to the point. In Thorington
V. Smith, 8 Wall. 1, it was adjudged
competent to show by the contempo-
raneous understanding of the parties,
that the term ' dollars ' meant Confed-
erate dollars. I will not follow fur-
ther the cases, but will content myself
by quoting the general rule in ques-
tion, as defined by Tindal, C. J., in
Shore v. Wilson, 9 Clark & F. 566,
that definition being in these words,
namely: 'The true interpretation of
every instrument being manifestly that
which will make the instrument speak
the intention of the party at the time
it was made, it has always been con-
sidered an exception, or, perhaps, a
corollary to the general rule above
stated, that where any doubt arises
upon the true sense and meaning of
the words themselves, or any difficulty
as to their application under the sur-
rounding circumstances, the sense and
meaning of the language may be in-
vestigated and ascertained by evi-
dence dehors tKe instrument itself.' "
Beasley, C. J., Sandford & Wright v.
K. R. Co. 37 N. J. 3.
" It is unnecessary, however, to go
beyond actual notice that a change
had taken place which the finding es-
tablished. This knowledge is a cir-
cumstance proper to be considered in
177
§ 941.]
THE LAW OF EVIDENCE.
[book II.
only if found to be of uncertain meaning when persons of com-
petent skill and information are unable to do so. Words cannot
be ambiguous because they are unintelligible to a nian who
cannot read, nor can they be ambiguous merely because the
court which is called upon to explain them may be ignorant of a
particular fact, art, or science which was familiar to the person
who used the words, and a knowledge of which is therefore nec-
essary to a right understanding of the words he has used." ^
§ 941. Acts of the writer of an ambiguous document, being
less liable to misinterpretation than oral expressions of
be received intention, and more likely to exhibit the writer's real
tory^o^°am- purpose, have been received, as to ancient documents,
biguity. -without the limitations just noticed as bearing on oral
expressions of intention. Thus in a leading case on this point,^
the house of lords held, that proof of the application of the funds
of an ancient charity by the original founder, and first trustee,
was strong evidence of intention, and might be so treated by the
determining the intention of the de-
fendant in the language employed, and
it does not conflict with the rule that
parol evidence is inadmissible to vary
the terms of written instruments. We
may resort to surrounding circum-
stances in all cases of doubtful con-
struction aad'patent ambiguity. If the
words are clear and unambiguous, a
contrary intention derived from out-
side circumstances is of no avail. A
new contract cannot be made by show-
ing that the intention was to make one
different from that expressed. But to
ascertaia what the contract is in case
of ambiguous language, a resort may
be had to the circumstances surround-
ing the author at the time. So his
knowledge or ignorance of certain
facts are competent to determine what
he meant by the language
Mr. Parsons, in his work on Con-
tracts, lays down the rule in such
cases as follows: ' If the meaning of
the instrument, by itself, is affected
with uncertainty, the intention of the
parties may be ascertained by eztrin-
178
sic testimony, and this intention will
be taken as the meaning of the par-
ties expressed in the instrument, if it
be a meaning, which may be distinctly
derived from a fair and rational in-
terpretation of the words actually
used.'
" This intention, however, it should
be observed, is to be ascertained, ex-
cept in cases of latent ambiguity, by a
development of the circumstances un-
der which the instrument was made.
Mere declarations are not admissible
for the purpose, but the knowledge of
facts by the party is competent; and
notice that a change had been made
is as potent upon the question of in-
tention, as if the defendant knew that
these buildings were actually used as
distilleries. I think they are charge-
able with that knowledge; but they
certainly knew that a change had
taken place." Church, Ch. J., Rey-
nolds ti. Insurance Co. 47 N. Y. 605.
1 Wigram on Wills, 2d ed. 180.
' Atty. Gen. v. Brazenose College,
a CI. & F. 295.
CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 942.
court in construing the grant. So, in a subsequent case,i Lord
Chancellor Sugden, while acknowledging that he could not receive
evidence of declarations of the founder of an apcient charity, as
explanatory of his grant, held that it was admissible to inquire
as to what acts such founder had done in relation to the charity.
" Tell me," said this eminent judge, "what you have done under
such a deed, and I will tell you what that deed means." ^ In a
similar case, Tindal, C. J.', held admissible " the early and con-
temporaneous application of the funds of the charity itself by the
original trustees under the deed."* It may further* be laid
down, that all ancient instruments of every description may, in
the event of their containing ambiguous language, but in that
event alone, be interpreted by evidence of the mode in which
property dealt with by them has been held and enjoyed.^ Evi-
dence of contemporaneous, and even of uniform modern usage,
may for the same purpose be received for the purpose of constru-
ing ancient grants and charters.^
§ 942. In application of the rule already stated,'^ parol Ambiguity
evidence as to the extrinsic condition of the grantor's erty'may'"
property, or as to his intentions, is admissible in order pfain'^j by
to explain ambiguous designations of property in deeds, P*™'-
1 Atty. Gen. v. Drummond, 1 Dru. Beav. 435, 464, 465, Sir J. Romilly
& War. 353, 366, 375, 376; aflF. on M. R., held, that no presumption
appeal, Drummond u. Atty. Gen. 2 H. could be made against the clear osten-
of L. Cas. 83 7. sible purpose of the foundation, though
" 1 Dru. & War. 368. it were supported by a usage of 150
'Shore V. Wilson, 9 CI. & Fin. years. See Atty. Gen. v. Oapham,
569 ; Atty. Gen. v. Sidney Sussex 4 De Gex, M. & G. 591. See Wadley
Coll. 38 L. J. Oh. 657, 659, 660, per v. Bayliss, 5 Taunt. 752; recognized
Ld. Hatherley, C; Law Rep. 4 Ch. by Cresswell, J., in Doe v. Beviss, 7
App. 722, 732, S. C. ; Atty. Gen. v. Com. B. 511; Att. Gen. u. Boston, iDe
May. of Bristol, 2 Jac. & W. 121, per Gex & Sm. 519, 527; Doe v. Beviss,
Ld. Eldon. 7 Com. B. 456 ; Stammers v. Dixon, 7
* Taylor's Ev. § 1090. East, 200.
6 Weld V. Hornby, 7 East, 199, per ' Chad v. Tilsed, 2 B. & B. 403;
Ld. Ellenborough; Waterpark u. Fen- Doe o. Beviss, 7 C. B. 456; Beaufort
nell, 7 H. of L. Cas. 650; Donegall v. v. Swansea, 3 Ex. R. 413; Shepherd
Templemore, 9 Ir. Law R. N. S. 374; v. Payne, 16 C. B. (N. S.) 132; Brad-
Atty. Gen. v. Parker, 3 Atk. 577, per ley v. Pilots, 2 E. & B. 427 ; Brune ».
Ld. Hardwicke; R. v. Dulwich Col- Thompson, 4 Q. B. 543; Sadlier v.
lege, 17 Q. B. 600; Atty. Gen. v. Biggs, 4 H. of L. Cas. 435; Water-
Murdoch, 1 De Gex, M. & G. 86. In park v. Fennell, 7 H. of L. Cas. 650.
Atty. Gen. v. St. Cross Hospital, 17 ' Supra, § 939.
179
§ 942.]
THE LAW OF EVIDENCE.
[book II.
or contracts for sale.'^ So parol evidence of boundaries and
locations may be received to explain ambiguous terms.^ Thus
an agreement in- writing to convey " the wharf and flats oc-
cupied by T. and owned by H.," may be applied, by parol
evidence, to two lots of land, only one of which bounded on the
^ Atkinson v. Cummins, 9 How. 479;
Emery v. Webster, 42 Me. 204 ; Dar-
ling V. Dodge, 36 Me. 370 ; French
V. Hayes, 43 N. H. 30; Wright v.
Worsted Co. 2 Cush. 271; Old Col.
R. R. B. Evans, 6 Gray, 25 ; Kimball
V. Bradford, 9 Gray, 243 ; Stevenson
». Erskine, 99 Mass. 367; Putnam w.
Bond, 100 Mass. 58; Ganley v. Loo-
ney, 100 Mass. 359; Pike v. Fay, 101
Mass. 134 ; Chester Co. v. Lucas,
112 Mass. 424; Grinnell v. Tel. Co.
113 Mass. 299; McFarland v. R. R.
115 Mass. 300; Bartlett' u Gas Co.
117 Mass. 533 ; Fitz v. Comey, 118
Mass. 100; Brainerd v. Cowdrey, 16
Conn. 1 ; Hotchkiss v. Barnes, 34
Conn. 27; Drew u. Swift, 46 N. Y,
204; Den v. Cubberly, 12 N. J. L
308; Halsteed v. Meeker, 15 N. J. L,
136 ; Fuller v. Carr, 33 N. J. L. 157
Jackson v. Perrine, 35 N. J. L. 137
Carmony v. Hoober, 5 Penn. St. 305
Russell V. Werntz, 24 Penn. St. 337
Brownfield i'. Brownfield, 20 Penn. St,
55; Tatman v. Barrett, 8 Houst. 226
Dorsey v. Hammond, 1 Har. & J. 201 ;
Herbert v. Wise, 3 Call, 240 ; Jenkins
I). SharpfT, 27 Wise. 472; Graham v.
Hamilton, 5 Ired. L. 428; Mariner v.
Rodgers, 26 Ga. 220 : Bell v. Brum-
by, 53 Ga. 643 ; Doe v. Jackson, 9
Miss. 494; Rollins v. Claybrook, 22
Mo. 405 ; Jennings v. Briseadine, 44
Mo. 332; Means v. De la Vergne, 50
Mo. 343; McPike v. AUman, 53 Mo.
651 ; Shewalter v. Pirner, 55 Mo. 218;
Schreiber v. Osten, 50 Mo. 513; Reed
t». Ellis, 68 111. 206 ; Burleson v. Bur-
leson, 28 Tex. 383; Finney v. Thomp-
son, 3 Iowa, 74 ; Baker v. Talbot, 6
T. B. Monr. 182 ; Reamer v. Nesmith,
180
34 Cal. 624; Ward v. MoNaughton,
43 Cal. 159; Altschul v. San Fran-
cisco, 43 Cal. 171, and cases cited in
following notes. When a sale is by
sample, parol evidence of the charac-
ter of the sample is admissible. " If
the sale was made by sample, the
description of the sample was com;
petent upon the question whether the
article tendered corresponded with
that offered for sale. Hogins v. Plymp-
ton, 11 Pick. 97. So, also, the de-
scription given verbally by the de-
fendant's agent, and the correspond-
ing descriptions of the article deliv-
ered, were competent upon the ques-
tion whether they were the same arti-
cle. Stoops V. Smith, 100 Mass. 63.
But such evidence must be confined to
the question of identity in kind, and
not extended to comparisons in degree
or quality. It is admissible only when
the writing does not distinctly define
the article to be delivered, so as to
enable its identity to be seen upon the
face of the transaction." Wells, J.,
Pike 0. Fay, 101 Mass. 136.
^ Deery ti. Cray, 10 Wall. 263 ;
Hodges V. Strong, 10 Vt. 247; Allen
v. Bates, 6 Pick. 460 ; Waterman v,
Johnson, 13 Pick. 261; Gerrish v.
Towne, 3 Gray, 82 ; Hoar v. Gould-
ing, 116 Mass. 132; Thomson v. Wil-
cox, 7 Lansing, 376 ; Carroll v. Nor-
wood, 1 Har. & J. 167; Midlothian v.
Finney, 18 Grat. 304 ; Hutton v. Ar-
nett, 51 111. 198; Bybee v. Hageman,
66 111. 519; Harris v. Doe, 4 Blackf.
369; Beal v. Blair, 33 Iowa, 318;
Hood V. Mathers, 2 A. K. Marsh. 553;
Kimball v. Brawner, 47 Mo. 398 ; Mo-
Leroy v. Duckworth, 13 La. An. 410;
Colton V. Scavey, 22 Cal. 496.
CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 943.
sea, and was separated from the other by a street, it appearing
that both, at the time of the agreement, were owned by H. and
occupied by T. for landing and storing wood and lumber, and
had been originally one lot.^ The same principle involves proof
as to the position of lines, stakes, and stones, referred to bound-
aries, when there is doubt as to such position ;2 though boundary
lines, definitely settled by a deed, cannot be varied by parol, if
such lines are ascertainable.'
§ 943. Where a fine, also, had been levied for twenty acres of
land and twelve messuages in Chelsea, it was held permissible to
show that, though the conusor's estate at Chelsea was under
twenty acres, he had nineteen houses on it ; and further proof
was received as to what particular part of the property was in-
tended to be included in it.* So again, to take a familiar illustra-
tion, if an estate be conveyed by the designation of Blackacre,
parol evidence is receivable to show what property is known
by that narae.^ Indeed it is essential, where a testator devises a
house purchased of A., or a farm in the occupation of B., to in-
troduce extrinsic evidence to explain what house was purchased
of A., or what farm was in B.'s occupation, before it can be
shown what is devised.® Hence parol evidence is admissible to
prove what is included in the expression, " known by the name
mill-spot," in a deed of land.'^ So parol evidence may be re-
ceived to show that the term " farm," in a deed, included a
particular fenced lot.' So in an action on a policy of insur-
ance of goods in a brick building, " known as D. & Co.'s car
» Gerrish v. Towne, 3 Gray, 82. & M. 88 ; Denn v. Wilford, 2 C. & P.
2 Wing V. Burgis, 13 Me. Ill; Ab- 173; Taylor, § 1036.
bott V. Abbott, 51 Me. 575 ; Gerrish « Ricketts v. Turquand, 1 H. of L.
V. Towne, 3 Gray, 82 ; Pettit v. Shep- Gas. 472.
hard, 32 N. Y. 97 ; Massengill v. » Sanford v. Raikes, 1 Mer. 653, per
Boyles, 4 Humph. 205; Keed i;. Sir W. Grant; Clayton u. Ld. Nugent,
Shenck, 2 Dev. L. 415 ; Colton v. 13 M. & W. 207, per Rolfe, B.
Seavey, 22 Cal. 496. ' Woods v. Sawin, 4 Gray, 322.
» Linscotti.'.Fernald,5Greenl.496; « Madden v. Tucker, 46 Me. 367.
Liverpool Wharf v. Prescott, 4 Allen, So where " A.'s claim against B. '
22 ; Clark v. Baird, 9 N. Y. 183 ; is recited, and there are several such
Wauo-b V. WauMi, 28 N. Y. 94 ; claims, evidence is admissible to show
Wynne v. Alexander, 7 Iredell L. to which the recital refers. Wilson v.
237. Home, 37 Miss. 477.
* Doe V. Wilford, 1 C. & P. 284 ; R.
181
§ 945.] THE LAW OF EVIDENCE. [BOOK II.
factory," parol evidence is admissible to show to what building
the terms in question refer.i So, on a written agreement to
lease " the Adams House, situate on Washington Street, in Bos-
ton," parol evidence is admissible to show that in this agreement
it was not intended to include the separate shops forming the
whole of the ground floor except the entrance to the hotel.^
§ 944. We may therefore generally say that when a descrip-
tion in a deed or other document is applicable to two or more
objects, parol evidence is admissible to distinguish between the
objects, as well as to identify that intended by the parties.^ It
is admissible, also, to identify or distinguish, under like circum-
stances, property described in a fi. fa., or in a sheriff's deed.*
But, as we have seen, parol evidence is not admissible to add
articles to those already specified as passing in an assignment.^
§ 945. Suppose that in a dispositive document, which contains
Erroneous ^^^ adequate description of a specific object, there is
particulars introduced an erroneous particular, can such erroneous
in descrip- _ _ ^ ' _ _
tion may particular be rejected as surplusage, if it be proved that
on parol there exists an object, and one object only, answering
''"'' ■ the body of the description ? Now, in view of the
fact that there are few cases in which, if we undertake minutely
1 Blake v. Ins. Co. 12 Gray, 265. Ladd, 26 111. 415 ; Marshall n. Grid-
^ Sargent v. Adams, 3 Gray, 72. ley, 46 111. 247; Stewart «. Chadwick,
8 Brooks V. Aldrich, 1 7 N. H. 443 ; 8 Iowa, 463 ; Sergeant c. Solberg, 22
George v. Joy, 19 N. H. 544 ; Melvin Wise. 132; Spears v. Burton, 31 Miss.
V. Fellows, 33 N. H. 401; Belli/. 547; Hardy w. Matthews, 38 Mo. 121;
Woodward, 46 N. H. 315; Locke v. Sentei-fit v. Reynolds, 3 Eicli. (S. C.)
Eowell, 47 N. H. 46; Riigg v. Hale, 128; Hughes v. Sandal, 25 Te.\. 162.
40 Vt. 138; Rhodes v. Castner, 12 See Collins v. Rush, 7 S. & R. 147;
Allen, 130; Doolittle v. Blakesley, 4 Scott v. Sheakly, 3 Watts, 50; Ins.
Day, 265; Bennett i;. Pierce, 28 Conn. Co. v. Sailer, 67 Penn. St. 108; Har-
815; Brinkerhoff v. Olp, 35 Barb. 27; vey i'. Vandegrift, 1 Weekly Notes,
Almgren i;. Dutilh, 5 N. Y. 28 ; Clark 629, to the efi'ect that identity in
w. Wethey, 19 Wend. 320; Rich v. such case may be a question of fact.
Rich, 16 Wend. 663; Burr u. Ins. Co. * Abbott v. Abbott, 51 Me. 575;
16 N. Y. 267; Patton u. Goldsborough, McGregor k. Brown, 5 Pick. 170;
9 Serg. & R. 47; Bertsch U.Lehigh Co. Lodge v. Barnett, 46 Penn. St. 477;
4 Rawle, 130; Barnhart v. Pettit, 22 Matthews v. Thompson, 3 Ohio, 272;
Penn. St. 135 ; Aldridge u. Eshleman, Doe v. Roe, 20 Ga. 189; Webster v.
46 Penn. St. 420 ; Carrington v. God- Blount, 39 Mo. 500.
din, 13 Grat. 587; Morgan v. Spang- « Supra, §§920-1; DriscoU w. Fiske,
ler, 14 Oh. St. 102; Venable v. Mc- 21 Pick. 503; Taylor v. Sayre, 24 N.
Donald, 4 Dana (Ky.), 336 ; Myers v J. L. 647.
182
CHAP. XII.] DOCUMENTS MODIFIED BY PAROL.
[§ 945.
to describe an object, we do not, while maintaining a general
accuracy, introduce some erroneous detail, our answer to the
question just put should be in the affirmative. And so has it
been frequently held.^ But it has been added that " if the prem-
ises be described in general terms, and a particular description
be added, the latter controls the former."^ It is clear, also, that
such particularization cannot be rejected if introduced into the
writing by way of limitation.^ But where a contract for the sale
of land has been fully executed, and the purchase money paid,
the vendee cannot recover damages for a deficiency in the quan-
tity of land, without actual proof of fraud or mutual mistake ;
and it is held that in such a case the mere fact that the discrep-
ancy between the quantity called for by the deed and the actual
measurement is very great, is not of itself sufficient to prove
fraud or mistake.* It has, however, been ruled that where
1 Doe V. Galloway, 5 B. & Ad. 43; Seavey, 22 Cal. 496 ; Miller w. Cherry,
3 Jones (N. C), Eq. 29. See supra,
§412; infra, §§ 996-1001 ; and see 3
Wash. Real Prop. 4th ed. 403.
2 Parke, B., Doe v. Galloway, 5 B.
& Ad. 43. See Bagley v. Morrill, 46
Vt. 94 ; Drew v. Swift, 46 N. Y. 209;
White V. Williams, 48 N. Y. 344.
s Taylor v. Parry, 1 M. & Gr. 623.
* Kreiter v. Bomberger, 2 Weekly
Notes, 685, Sup. Ct. of Penn. 1876. In
this case Sharswood, J., said : " The rule
was stated by Mr. Justice Sergeant, in
Galbraith v. Galbraith, 6 Watts, 112, in
these words : ' An examination of the
numerous decided cases in our own re-
ports will, I think, show that, in the
common case between vendor and ven-
dee, in a conveyance of a tract of land
bounded by adjoining owners, and
described as containing so many acres,
be the same more or less, at a certain
price per acre, where there is no stip-
ulation for admeasurement, nor any
mala fides proved, redress cannot, after
the bargain is closed, be given to either
party for a surplus or deficiency sub-
sequently appearing.' This rule was
adopted and confirmed in Hershey v.
Keembortz, 6 Barr, 128. Chief Jus-
183
Goodtitle u. Southern, 1 M. & Sel.
219; Slingsby v. Grainger, 7 H. of L.
Cas. 282; West v. Law'dray, 11 H.
of L. Cas. 375 ; Day v. Trig, 1 P.
Wms. 286 ; Selwood v. Mildmay, 3
Ves. 306; Miller v. Travers, 8 Bing.
244 ; Doe v. Chichester, 4 Dow.
P. C. 65 ; McMurray v. Spicer, L.
B. 5 Eq. 527; Aikman v. Cummings,
9 How. 470; Brown v. Huger, 21
How. 305 ; McPherson v. Foster, 4
Wash. C. C. 45 ; Esty v. Baker, 50
Me. 331 ; Peaslee ti. Gee, 19 N. H.
273; Bailey v. White, 41 N. H. 343;
Park V. Pratt, 38 Vt. 552; Kellogg
V. Smith, 7 Cush. 375 ; Davis v.
Kainsford, 17 Mass. 207; Sargent v.
Adams, 3 Gray, 72 ; Putnam v. Bond,
100 Mass. 58; Loomis v. Jackson, 19
Johns. 449 ; Drew v. Swift, 46 N. Y.
207; Opdyke v. Stephens, 4 Dutch.
(N. J.) 89; Mackentile ti. Savoy, 17 S.
& E. 104 ; Brown v. Willey, 42 Penn.
St. 369 ; Lodge v. Barnett, 46 Penn.
St. 484; Hildebrand v. Fogle, 20 Oh.
147 ; Evansville v. Page, 23 Ind. 527 ;
Reed v. Schenck, 2 Dev. L. 415; Mas-
Bengill V. Boyles, 4 Humph. 205 ; Stan-
ley V. Green, 12 Cal. 162 ; Colton v.
§ 946.]
THE LAW OF EVIDENCE.
[book II.
through mutual mistake or fraud, there is an excess of land con-
veyed, equitable assumpsit may be maintained to recover the
value of the excess.-^
§ 946. Ambiguous expressions as to extrinsic or other objects
Ambiguity ™^y ^® explained by parol proof ; but when the mean-
ing of the ambiguous terms is thus supplied, the court
must judge of the whole document in subordination to
its legal sense as thus completed. ^ The contract can-
not be varied ; its obscure expressions may be explained, but
this for the purpose not of moulding, but of developing the true
sense. ^ Thus, where a deed, among other things, conveyed all
tice Gibson adding: 'The vendor is greatness of the difference may be
as (o extrin-
sic objects
may be ex-
plained.
answerable in respect of the quantity,
only for mala fides.' There are, in-
deed, many dicta that the difference
in the quantity may be so great as to
be evidence itself of fraud or deceit,
or of great misapprehension between
the parties, — and then equity will re-
lieve. Though no case is to be found
of an actual application of this doc-
trine in favor of the vendee, or to
show what must be the extent of the
difference to raise the presumption;
yet, perhaps, it may be fairly con-
ceded that, in an action to enforce the
payment of purchase money, a deduc-
tion under such circumstances will be
allowed. Such is the weight of extra-
judicial opinions. Boar v. McCormick,
1 S. & R. 166; Glen v. Glen, 4 S. &
R. 488; Bailey v. Snyder, 13 S. & R.
160 ; McDowell v. Cooper, 14 S. & R
296; Ashcom v. Smith, 2 P. R. 219;
Frederick r. Campbell, IS S. & R.
136; Haggerty v. Fagan, 2 P. R. 533;
Coughenour's Adm'r v. Stauft, 27 P.
F. Smith, 191.
" The third class of cases, to which
the one now under consideration be-
evidence, but not sufficient of itself.
There must be other circumstances.
Cases of this class very rarely arise.
I can find but one instance in our
books. That is the case of Large b.
Penn, 6 S. & R. 488. There the dif-
ference was very great in reference to
the extent of the premises. The quan-
tity conveyed was described as 2|
acres, and without the words ' more or
less ; ' the actual quantity was 1 acre,
148 perches. Yet the vendee was de-
nied relief."
' See cases cited infra, § 1028;
Jordan v. Cooper, 3 S. & R. 564;
Bank v. Galbraith, 10 Barr, 490;
Jonks V. Fritz, 7 W.,& S. 201; Fisher
V. Deibert, 54 Penn. St. 460 ; Schet-
tiger V. Hopple, 3 Grant, 56 ; Beck v.
Garrison, cited infra, § 1028.
2 Doe u. Hiscocks, 7 M. & W. 367;
Doe V. Martin, 4 B. & Ad. 771 ; K. w.
Wooldale, 6 Q. B. 549 ; Macdonald v.
Longbottom, 1 E. & E. 977.
8 Purcell I). Burns, 39 Conn. 429;
Cole 0. Wendel, 8 Johns. 116; Dodge
V. Potter, 18 Barb. 193; Dana v.
Fiedler, 12 N. Y. 40; Filkins t>. Why-
longs, is where the contract is fully land, 24 N. Y. 388; Clinton v. Ins. Co.
executed and the purchase money paid. 45 N. Y. 454 ; Den v. Cubberly, 12 N.
We are of the opinion that in this class J. L. 308 ; Sandford ». R. R. 37 N. J.
the transaction cannot be ripped up
without actual proof of fraud or mut-
ual mistake. Upon this question the
184
L. 1 ; Thayer v. Torrey, 87 N. J. L.
839; McCullough v. Wainright, 14
Penn. St. \li\ Paul v. Owings, 32
CHAP. Xn.] DOCUMENTS MODIFIED BY PAEOL. [§ 948.
the " zinc " in a certain tract, excepting an ore called " franklin-
ite," and when a contest arose as to whether a particular vein
was "zinc " or " franklinite," parol evidence was held admissible
to show the meaning of " zinc." ^
§ 947. Again : under a contract to sell by measurement, the
returns of such measurement may be proved by parol. ^ So
where B. agreed in writing to receive from S. 60 shares of bank
stock, on which $10 per share had been paid, and to deliver
S. his note for $667, to pay the balance in cash, and to pay
five per cent, in advance; it was held, the nominal value of
each share being $50, that parol evidence was admissible to show
whether it was understood by the parties that the five per cent,
advance should be paid on each share only, or on the nominal
amount.^ Where, also, the defendant agreed to pay the plain-
tiff a certain sum for inserting a business card in his advertising
chart, when it should be "published," parol evidence was held
admissible to explain the style and character of the " chart," so
as to determine the meaning of the word "published." * Again :
where a physician sold his " good will " in practice to another,
evidence was admitted to show in what vicinity this practice was
maintained.^ So where there is a guarantee of general indebted-
ness, the details of such indebtedness can be shown by parol.^
§ 948. One of the most interesting applications of the principle
before us arises from the confusion of currency during p„„j g^;.
the late civil war. In construing contracts made in the ^''j^^fijj'e'^to
Confederate States during the Avar, the consideration of p™^"e „
which was so many "dollars," to make the term " dol- meant
lars" mean a standard widely apart from that which orate "dol-
the parties intended would be a perversion of justice. *"'■
Md. 403 • Warfield v. Booth, 33 Md. 523 ; Franklin v. Mooney, 2 Tex.
63; Crawford w. Jarrett, 2 Leigh, 630; 452.
Sexton V. Windell, 23 Grat. 534; Du- > New Jersey Co. v. Boston Co. 15
ling V. Johnson, 32 Ind. 155; Haver 15 N. J. Eq. 418. See stipra, § 939.
». Tenney, 36 Iowa, 80; Richards v. 2 Hill ». McDowell, 14 Johns. R. 175.
Schlegelmich, 65 N. C. 150; Paysant « Cole v. Wendel, 8 Johns. R. 116.
V. Ware, 1 Ala. 160; Acker v. Bender, < Stoops v. Smith, 100 Mass. 63.
33 Ala. 230 ; Shuetze v. Bailey, 40 ^ Warfield v. Booth, 33 Md. 63.
Mo. 69; Washington Ins. Co. v. St. = Day v. Leal, 14 Johns. R. 404;
Mary's, 62 Mo. 480; Rugely u. Good- Morrison v. Myers, 11 Iowa, 538;
loe, 7 La. An. 295; Piper v. True, 36 Snodgrass v. Bank, 25 Ala. 161 ; Var-
Cal. 606; Ellis v. Crawford, 39 Cal. deman v. Lawson, 17 Tex. 10.
185
§ 949.]
THK LAW OF EVIDENCE.
[book II.
It has consequently been held admissible, in such cases, to
show what was the currency the parties intended.^ Where,
however, there is no parol proof offered, the presumption is that
the lawful currency of the United States was intended.^
§ 949. A latent ambiguity as to the parties to a contract may
Ambiguity be removed by showing who are the real parties in in-
ties*nia"be terest.^ Thus where a writing on its ia.ce primd facie
b^''^d''"t^fi creates a joint tenancy, it may be shown by the acts
cation. and dealings of the parties, though not, it seems, by
declarations of intention, that a tenancy in common is what the
writing, as rightly construed, creates.* So if a man should
make an ambiguous settlement on his children, evidence will be
1 Thoringtonu. Smith, 8 Wall. 9-12; valid; and that parol evidence, under
Atlantic R. R. Co. v. Bank, 19 Wall.
548; Austin v. Kinsman, 13 Rich. Eq.
(S. C.) 259; Craig r. Pervis, 14 Rich.
Eq. (S. C.) 150; Hightower v. Maull,
50 Ala. 495; Donley v. Tindall, 32
Tex. 43.
^ " The anomalous condition of things
at the South had created, in the mean-
ing of the term ' dollars,' an amhiguity
which only parol evidence could in
many instances remove. It was, there-
fore, held in Thorington v. Smith,
where this condition of things, and
the general use of Confederate notes as
currency in the insurgent states were
shown, that parol evidence was admis-
sible to prove that a contract between
parties in those states during the war
payable in ' dollars ' was in fact made
for the payment of Confederate dol-
lars; the court observing, in the light
of the facts respecting the currency of
the Confederate notes which were de-
tailed, that it seemed ' hardly less than
absurd to say that these dollars must
be regarded as identical in kind and
value with the dollars which consti-
tute the money of the United States.'
" The decision upon which reliance
is placed, as thus seen, only holds that
a contract made during the war in the
insurgent states, payable in Confeder-
ate notes, is not for that reason in-
186
the peculiar condition of things in
those states, is admissible to prove the
value of the notes, at the time the
contract was made, in the legal cur-
rency of the United States. In the
absence of such evidence the pre-
sumption of law would be, that by the
term ' dollars ' the lawful currency of
the United States was intended. This
case affords, therefore, no support to
the position of the appellants here, for
no evidence was produced by them
that payment of the bonds in Confed-
erate notes was intended by the rail-
road company when they were issued,
or by the parties who purchased them."
Field, J. The Confederate Note Case,
19 Wall. 557.
s Lancey v. Ins. Co. 56 Me. 562 ;
Foster v. McGraw, 64 Penn. St. 464 ;
Richmond R. R. v. Snead, 19 Grat.
354 ; Scammon v. Campbell, 75 111.
223 ; Bancroft v. Grover, 23 Wise.
463 ; Fallon v. Kehoe, 38 Cal. 44 ;
Ellis V. Crawford, 39 Cal. 523. See
Grant v. Grant, Law Rep. 2 P. & D.
8 ; 39 L. J. Pr. & Mat. 17, 5. C; 89
L. J. C. P. 140, S. P. in another pro-
ceeding; Law Rep. 5 C. P. 380, S. C;
aff'd. in Ex. Ch. 39 L. J. C. P. 272;
and Law Rep. 5 C. P. 727.
* Harrison v. Barton, 30 L. J. Ch.
213, by Wood, V. C.
CHAP. XII.] DOCUMENTS MODIFIED BY PAROL.
[§ 950.
received as to the state of his family, and the circumstances in
which he is placed as to'the property disposed of.^ Parol evi-
dence, also, has been received to show that a grantor executed a
deed by other than his formal name ; ^ and to identify grantee or
assignee.^ It has, on the same principle, been held that ex-
trinsic evidence is admissible to prove who is the buyer and who
the seller in a memorandum or note under the 17th section of
the statute of frauds.*
§ 950. The most common illustration of the exception last
stated is where evidence is received to prove that P. xims to en-
is the real principal to a contract executed by A., who aWemidis-
is in fact only P.'s agent. The instrument in such principal
case is not varied by parol evidence, but parol evidence be sued, he
is introduced to make the instrument effective by show- ""ved^by
ing who is the person whom the instrument binds or P"'"'"
privileges. The question is, who is A. ; and for the purpose
either of enabling P. to bring suit on the instrument, or to be
sued on the instrument by T., parol evidence is admissible to
show that A. is the agent of P.^
1 Atty. Gen. v. Drummond, 1 Dru.
&W. 367, Sugden, C.
2 Nixon V. Cobleigh, 52 111. 387.
" Langlois v. Crawford, 59 Mo.
456.
■■ Newell I). Radford, L. K. 3 C. P.
52. See Whart. on Agency, § 719 et
seq.
^ Garrett v. Handley, 4 B. & C.
664 ; Higgins v. Senior, 8 M. & W.
834 ; Fowler v. HoUins, L. R. 7 Q. B.
616 ; Hutton v. Bullock, L. E. 9 Q.
B. 572; Trueman v. Loder, 11 A. &
E. 589; Beckham v. Drake, 9 M. &
W. 79 ; 2 H. L. Cas. 579 ; Elbing
Act. Ges. V. Claye, L. E. 8 Q. B. 317;
Calder y. Dobell, L. E. 6 C. P. 486 ;
Ford D. Williams, 21 How. 207; Brad-
lee V. Glass Co. 16 Pick. 347; Com-
mercial Bank v. French, 21 Pick. 486 ;
Bank of N. A. v. Hooper, 15 Gray,
567 ; Lerned v. Johns, 9 Allen, 419;
Nat. Life Ins. Co. v. Allen, 110 Mass.
898 ; Jones v. Ins. Co. 14 Conn. 501 ;
Taintor v. Prendergast, 3 Hill, 72;
Gates V. Brower, 9 N. Y. 205 ; Cole-
man V. Bank, 53 N. Y. 393 ; Oelriehs
V. Ford, 21 Md. 489 ; Anderson v.
Shoup, 17 Oh. St. 128; Ohio R. R.
V. Middleton, 20 111. 629 ; Wolfley v.
Rising, 12 Kans. 535; Hopkins w.
Lacouture, 4 La. R. 64; May v. Hewitt,
33 Ala. 161 ; Briggs v. Munehon, 56
Mo. 467; Smith v. Moyniban, 44 Cal.
53 ; Engine Co. v. Sacramento, 47
Cal. 494.
" The rule does not preclude a
party who has entered into a written
contract with an agent from maintain-
ing an action against the principal,
upon parol proof that the contract was
made in fact for the principal, where
the agency was not disclosed by the
contract, and was not known to the
plaintiff when it was made, or where
there was no intention to rely upon
the credit of the agent to the exclu-
sion of the principal. Such proof does
187
§ 951.J
THE LAW OF EVIDENCK.
[book II.
But person
Bigning as
principal
cannot set
up that he
was only
agent.
§ 951. Yet it is not admissible for an agent, signing' an instru-
ment in his own name, to defend himself when sued
by proof that he acted in the matter only as agent,!
though he may prove agency in connection with an
agreement by the other contracting parties that he
should be regarded only as agent.^ Nor does the right
by parol evidence to charge a principal, or to enable him to sue
on a contract, extend to suits on sealed instruments or negotiable
paper, when innocent third parties are concerned.^
The distinction to be kept in mind is, that while parol evidence
cannot be received to discharge a party, it may be received when
its effect is to show that another party, namely the principal, is
also bound.* Parol evidence may be also received to show that
an agent, dealing for an undisclosed principal, has made himself
personally liable.^ So, a person who appears in a contract as
not contradict the written contract. Pease v. Pease, ^5 Conn. 131; Miles
It superadds a liability against the
principal to that existing against the
agent. That parol evidence may be
introduced in such a case to charge
the principal, while it would be inad-
missible to discharge the agent, is well
settled by authority." Andrews, J.,
Coleman u. First Nat. Bank of Elmira,
53 N. Y. 393.
In Barry i>. Ransom, 12 N. Y. 464,
Denio, J., in speaking of the rule,
says : " It is a Valuable principle,
which we would be unwilling to. draw
in question, but we think it is limited
to the stipulations between the parties
actually contracting with each other
by the written instrument."
1 Wharton on Agency, § 298; Hig-
gins V. Senior, 8 M. & W. 834; 2
Smith's Lead. Cas., note to Thompson
V. Davenport; Royal Ex. Ass. v.
Moore, 2 New R. 03; Sowerby v.
Butcher, 2 C. & M. 371; Magee r.
Atkinson, 2 M. & W. 440; Jones v.
Littledale, G A. & E. 486; Bradlee «.
Glass Co. 16 Pick. 347; Bank of N.
A. V. Hooper, 15 Gray, 567;Babbetti;.
Young, 51 N. Y. 238.
' Williams v. Robbins, 16 Gray, 77;
188
V. O'Hara, 1 S. & R. 32 ; but see
Nash 0. Town, 5 Wall. 689 ; Williams
V. Christie, 4 Duer, 29; Chappell v.
Dann, 21 Barb. 17. See Rogers v.
Hadley, 2 H. & C. 249; Wake o. Ilar-
rop, SOL. J. 278; 31 L. J. 451.
8 Whart. on Ag. §§ 290, 411, 604;
Emly D. Lye, 15 East, 7; Lefevre v.
Lloyd, 5 Taunt. 749; Siffkin v. Walk-
er, 2 Camp. 808; Leadbitter v. Far-
rer, 5 M. & S. 845; Beckham v. Drake,
9 M. & W. 79 ; Hancock v. Fairfield,
30 Me. 299; Bradlee v. Glass Man. 16
Pick. 347; Stackpole v. Arnold, 11
Mass. 27 ; Bank of N. A. v. Hooper,
5 Gray, 567; Dessau v. Bours, 1 Mc-
AU. 20; Pentz v. Stanton, 10 Wend.
276; Anderson v. Shoup, 17 Oh. St.
128; Hiatt v. Simpson, 8 Ind. 256;
Lander v. Castro, 43 Cal. 497; Bogan
V. Calhoun, 19 La. An. 472. See
fully infra, §§ 1058-GO.
* Taylor's Ev. § 1056; Higgins v.
Senior, 8 M. & W. 844, 845.
» Fleet V. Murton, L. K. 7 Q. B.
126; Fairlie v. Fenton, L. R. 5 Ex.
169; Hutchins ». Tatham, L. R. 8 C.
P. 482.
CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 953,
agent may be shown to be the real principal, in the event of his
being sued by the party with whom he contracted.^ In equity
however, as we have seen, the plaintiff in such a case maj', if the
evidence be to such effect, be regarded as having estopped himself,
by an agreement upon sufficient consideration, from proceeding
against the defendant.^ It should be remembered, also, that an un-
disclosed principal cannot, by disclosing himself, cut off the other
contracting party from any defence he might otherwise make.°
§ 952. When a bond is by its terms joint and several, and
contains no indication as to which of the obligors is s„retyiQ
surety, parol evidence, as between the parties, is admis- . writing
sible for the purpose of showing which of the obligors proved by
is surety, and the knowledge of this relationship by
the obligees.* This exception is now extended to suits on nego-
tiable paper.^
§ 953. It is also admissible to prove by parol that a certificate of
deposit taken by a guardian in his own name, was really other cases
a certificate of the deposit of his ward's money ; ^ to "fo^gn^""
show that a person acting as " treasurer " or " agent " ideutifica-
acted as treasurer or agent for a particular company ; "^
^ Carr v. Jackson, 7 Excheq. R. action might be sustained against him
382. upon the express contract.
» In Chandler v. Coe, 54 N. H. 561, « Whart. on Agency, § 405. See
it is held that if the principal was not Humble v. Hunter, 12 Q. B. 310.
disclosed at the time of the making of * Davis u. Barrington, 30 N. H. 517;
the contract by the agent in his own Barry v. Ransom, 12 N. Y. 462;
name, he may be held liable thereon Brown v. Stewart, 4 Md. Ch. 368 ;
by parol proof; but that if the princi- Smith v. Bing, 3 Ohio, 33 ; Dickerson v.
pal was disclosed at the time, such evi- Commis. 6 Ind. 128 ; Garrett v. fergu-
dence cannot be admitted, not by rea- son, 9 Mo. 125 ; Scott v. Bailey, 23 Mo.
son of the rule of evidence, but upon 140; Field v. Pelot, 1 McMul. Eq. 369.
the ground of estoppel ; that the ac- ^ Taylor's Ev. § 1054 ; Greenough
ceptance of the instrument executed v. Greenough, 2 E. & E. 424; Mutual
in the name of the agent is conclusive Loan Co. v. Sudlow, 5 C. B. (N. S.)
evidence of an election to look to the 449; Pooley v. Harradine, 7 E. & B.
agent exclusively. And it was also 431 ; Lawrence u. Walmsley, 12 C. B.
held, that where there is an express (N. S.) 799; Bristow v. Brown, 13 Ir.
contract in the agent's name, whether Law R. (N. S.) 201. See, for Amer-
verbal or written, the principal is not ican cases, infra, § 1060-61.
liable to be sued upon an implied con- ' Beasley v. Watson, 41 Ala. 234.
tract arising from the passage of the ' Wharton on Agency, §§ 291, 296,
consideration between his agent and 409, 492, 729 ; Mich. State Bank v.
the other contracting party, unless an Peck, 28 Vt. 200.
189
§ 954.] THE LAW OF EVIDENCE. [BOOK H.
to show that a husband^, in making an instrument, was really
agent for his wife in whole or in part,^ to show that P. was the
real purchaser, and that T. was merely his trustee ;2 to show the
identity of " Eli " with " Elias " in a grant from the state ; ^ to
show that a Christian name in a deed or grant from the state
was entered by mistake for another name;* to show, where a
deed of land was executed to E. A. C, which was the name of
E. A. S. before marriage, that E. A. S. was the intended gran-
tee ; ^ to show that a blank in the vendee's name in an act of
sale was intended for H. T. W., as the recitals in the act in-
dicated ; ^ to show that " Hiram Gowing, cordwainer," the nom-
inal grantee in a deed, was intended for " Hiram G. Gowing," a
cordwainer, a man of middle age, and not for his infant son,
Hiram Gowing ; ^ to show, when there are two persons bearing
the exact name of the grantee in a deed, which was intended ; *
and to show that through a mis-punctuation " A. B., orphan,"
should be read " A. B.'s orphan." ^ But, as is elsewhere seen,!"
when the mistake is a mistake of judgment on the part of a
grantor, as between two persons, and not a mistake of the name
of a particular intended person, parol evidence is not admissible
in law to correct the mistake.^!
§ 954. We will elsewhere observe that evidence of the course
of business between two contracting parties is admissi-
Evidenoe . ° ■^. .
of writer's ble to show that they used certam litigated words m a
guage ad- Special sense.12 On the same principle it is admissible to
solving^ '" sliow that the writer of a unilateral document was in
bigStier' *'^® habit of giving a particular meaning, distinct from
that primarily expressed, to a disputed word. This is
1 Westholz ». Retaud, 18 La. An. s Cojt „. Starkweather, 8 Conn.
285; Dunham ti. Chatham, 21 Tex. 289 ; Avery ». Stites, Wright (Ohio),
231. 56.
= Leakey v. Gunter, 25 Tex. 400. » Walker v. Wells, 25 Ga. 141;
» Henderson v. Hackney, 23 Ga. Tuggle v. McMath, 38 Ga. 648; Sim-
383. mons v. Marshall, 3 G. Greene, 502.
* Williams v. Carpenter, 42 Mo. " See infra, §§ 1028-9.
327; Henderson v. Hackney, 16 Ga. " See Crawford «. Spencer, 8 Gush.
521. 418; Jackson v. Hart, 12 Johns. R.
« Scanlan v. Wright, IS Pick. 523. 77 ; Jackson v. Foster, 12 Johns. R.
« Beauvais v. Wall, 14 La. An. 488 ; Moody v. McCown, 89 Ala.
199. 586.
' Peabody v. Brown, 10 Gray, 45. i» Infra, § 962.
190
CHAP. XII.J DOCUMENTS MODIFIED BY PAROL.
[§ 955.
frequently illustrated in cases where a testator's habit of mis-
naming a particular person is put in evidence to explain a par-
ticular devise.^ Contractions and short-hand expressions may
be in like manner interpreted by showirig their customary mean-
ing, or the meaning of the parties by whom they are used.'^
§ 955. Under the statutes enabling parties to be witnesses, a
party, in all cases where extrinsic evidence is admissi- p^^y him-
ble to prove a party's declarations of intent, may be »?" ^^"^^^
himself permitted to testify to such intent or under- prove his
standing ; although in most states he is precluded from under-
80 testifying where the other contracting party is de- ''*°'''°s-
ceased.^ Nor can a party be examined to vary, by proving his
intent, a contract on its face unambiguous.*
1 See, for cases, infra, § 1010 et
seq.
^ Infra, § 972 ; Sweet v. Lee, 3 Man.
& Gr. 452.
8 Supra, §§ 466, 482 ; Hale v. Tay-
lor, 45 N. H. 405 ; Delano v. Goodwin,
48 N. H. 205; Fisk v. Chester, 8
Gray, 506 ; Lombard v. Oliver, 7 Al-
len, 155.
" Before the statute making parties
competent witnesses, the ordinary way
to prove their intent or understanding
was by circumstantial evidence. But
now that the party himself is admitted
to testify, there is no reason for con-
fining his testimony to a variety of
circumstances tending to show his pur-
pose or understanding, when he knows
and can testify directly what that pur-
pose or understanding was. Accord-
ingly it has been held that where the
intention or good faith of a party to a
suit becomes material, it may be shown
directly as well as from circumstances ;
and the party himself, if a competent
witness, may testify directly to his in-
tention or understanding, unless pre-
vented by some other principle of law
applicable to the particular case.
Hale V. Taylor, 45 N. H. 405 ; Norris
V. Morrill, 40 N. H. 395; Fisk v. Ches-
ter, 8 Gray, 506; Thacher v. Phin-
ney, 7 Allen, 146 ; Lombard v. Oliver,
7 Allen, 155. The same principle
must apply to the ' understanding '
of a party relative to the meaning or
effect of a contract. To prove a con-
tract, it must be shown (except in
cases where the doctrine of estoppel
applies) that both parties have under-
standingly assented to the same thing
in the same sense. See 1 Parsons on
Contracts, 4th ed. 399 b. But al-
though the issue on trial is whether
there has been a concurrence in un-
derstanding of two parties, yet it is
not improper to prove separately the
understanding of each. See Hale v.
Taylor, 45 N. H. 407. It is no ob-
jection to a single piece of evidence
that it does not make out the whole
of plaintiff's case. The evidence to
* Dillon V. Anderson, 43 N. Y. 231 ;
Lewis V. Rogers, 34 N. Y. Sup. Ct.
64< Harrison v. Kirke, 38 N. Y. Sup.
Ct. 396, fully cited supra, § 482. See
Gould V. Lead Co. 9 Gush. 338, where
it was held that the opinion of the di-
rector of a corporation could not be
received to explain the meaning of a
recorded resolution of the board.
191
§ 956.]
THE LAW OF EVIDENCE.
[book n.
§ 956. The admission of evidence to explain ambiguities is
Patent am- Confined to such ambiguities as are latent. That which
cannot^be ^^ Called a patent ambiguity (i. e. one in which the im-
explained. perfection of the writing is so obvious that the idea that
it was intended cannot be absolutely excluded) cannot be ex-
plained by parol.^ Judge Story, in this relation,* makes a new
distinction : " There seems, indeed, to be an intermediate class
of cases, partaking of the nature both of patent aiid latent am-
biguities ; and that is, where the words are all sensible, and have
a settled meaning, but at the same time consistently admit of
two interpretations, according to the subject matter in the con-
templation of the parties. In such case, I should think that
parol evidence might be admitted, to show the circumstances
under which the contract was made, and the subject matter to
which the parties referred." ^ But an ambiguity which is only
developed by extrinsic evidence is not patent in the strict sense
prove several propositions (all of which
ave requisite to the case) may be of
different kinds and drawn from differ-
ent sources. See Blake v. White, 13
N. H. 267, 272. In proving a con-
currence of understandings the plain-
tiff may prove his own understanding
by one witness, and defendant's under-
standing by another witness. The
admissibility of a party's evidence as
to how he understood a contract can-
not depend upon the grounds of that
understahding, though these grounds
may often be very important in deter-
mining the credit to be given to such
evidence. Whether his understand-
ing is founded on personal knowledge
or hearsay is of no consequence in
point of law, provided it actually con-
curs with the other party's under-
standing; and, if it does not so con-
cur, then his testimony on this point
is immaterial, except in cases of es-
toppel, where the party claiming that
the other is estopped would have to
show how he himself understood the
contract, and then show that the other
party induced him to entertain and
192
act upon that understanding." De-
lano V. Goodwin, 48 N. H. 205, 206,
Smith, J.
1 Bacon's Law TracU, 99, 100
Clayton v. Nugent, 13 M. & W. 200
Whately v. Spooner, 5 Kay & J. 542
Webster c. Atkinson, 4 N. H. 21
Pingry ii. Walkins, 17 Vt. 379; Hor-
ner V. Stillwell, 35 N.J. L. 307; Berry
V. Matthews, 13 Md. 537; Clark v.
Lancaster, 36 Md. 196; Bowyer v.
Martin, 6 Rand. (Va.) 525; Morris ».
Edwards, 1 Ohio, 189 ; Richmond v.
Farquhar, 8 Blackf. 89; Panton r.
Tefft, 22 111. 366; Robeson u. Lewis,
64 N. C. 734; McGuire v. Stevens, 42
Miss. 724; Brown o. Guice, 46 Miss.
299; Peacher o. Strauss, 47 Miss. 358;
Johnson v. Ballew, 2 Port. Ala. 29;
Jennings u. Briseadine, 44 Mo. 332;
Mithoff V. Byrne, 20 La. An. 363;
Campbell v. Johnson, 44 Mo. 247;
McNair t'. Toler, 5 Minn. 435. See
Fish V. Hubbard, 21 Wend. 651 ; and
infra, § 1006.
* Peisch V. Dickson, 1 Mason, 9.
' See comments of Moncure, J., in
Early v. AVilkinson, 9 Grat. 74.
CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 957.
of the term. A patent Ambiguity is one which exists in the
■writer himself, and exhibits itself on the face of the writing.
His meaning in a particular relation he fails to exhibit, and the
writing shows the failure. But in the cases mentioned by Judge
Story there is no ambiguity in the writer's mind, but a concep-
tion which fails simply because the words selected by the writer
are susceptible of a meaning other than that which he intended.
By Mr. Stephen the rule is stated more correctly to be, that " if
the words of a document are so defective or ambiguous as to be
unmeaning, no evidence can be given to show what the author of
the document intended to say." ^
§ 957. Were we to translate Lord Bacon's maxim into modern
terms, we might say that a patent ambiguity is subjec- " Patent"
tive, that is to say, an ambiguity in the mind of the jec'ave,"
writer himself; while a latent ambiguity is objective, trift""*"b-
that is to say, an ambiguity in the thing he describes, jective."
A writer's mind may be ambiguous for several reasons. He
may have no idea on the topic on which he writes ; and if so,
it is inadmissible to prove that he had an idea, which would be
to contradict the writing itself. In such case, a writing is to be
treated as a piece of blank paper, and is not (as is the case with
a meaningless will) to be permitted in any way to disturb the
due course of the law. To graft a meaning, for instance, on a
meaningless will, would be to open the way to great frauds, and
to contravene the statutes requiring wills to be in writing. Or a
writing may be ambiguous because the writer intends it to be so.
Of this an illustration is to be found in a much litigated case in
which the testator left his estate to his " heir at law." It was
perfectly competent for him to say in his will who his " heir at
law " was, and to make such person his heir at law ; but he did
not choose to do so, but preferred to leave it to the law itself to
decide who was his heir at law. Now in such a case to have
taken evidence to prove that Mr. Aspden, the testator, at one
time said that he liked one nephew, or that at another time he
said he liked another nephew, would have been to contravene
(1.) the statute which requires wills to be written; (2.) the policy
of the law which forbids the transfer of property by loose talk ;
' Steph. Ev. art. 91, citing Bajlis v. R. J. 2 Atk. 239 ; Shore v. Wilson, 9
C. & P. 365. See infr.a, § 1006.
VOI-. II. 13 193
§ 958.]
THE LAW OF EVIDENCE.
[book n.
and (3.) the intention of the testator, which was to have the
question of heirship determined, not by himself, but by the
courts. Hence, in this famous case, extrinsic evidence as to his
intention was properly rejected.^ On the other hand, an am-
biguity which is. " latent " or " objective " is an ambiguity, not
in the writer's mind, which it is not the business of the court to
clear, but in the thing described, which it is the business of the
court to discover and to distinguish, so as to carry out the writer's
intent.
It does not follow because a usage exists as to the ob-
ject of a contract, that the contract is meant by the
parties to incorporate the usage. It is within the power
of parties to override by consent any usage no matter
how settled. It may be the usage of a particular busi-
ness, for instance, to accept checks given in payment of goods as
cash, and hence an agent, on such usage, if the matter be open,
may accept checks without incurring liability for the loss to his
principal ; ^ but if the principal should instruct the agent not to
receive checks, then the agent cannot protect himself by setting
up the usage. Usage, in fine, cannot be introduced either to
give to a dispositive writing a meaning different from that which
it bears on its face, or to interpret any of the terms used in such
writing in a sense conflicting with that attached to such terms
by law.^ Thus where goods had been sold through a London
§958.
Usage can-
not in gen-
eral vary
dispositive
writing.
» Aspden's Est. 3 Wall. Jr. 368.
'^ Wharton on Agency, § 210.
' R. «. Lee, 12 Mod. 514; Smith v.
Wilson, 8 B. & Ad. 731; Hockin v.
Cooke, 4 T. R. 314; Wigglesworth v.
Dallison, 1 Smith's Leading Cases,
498; Noble «. Durell, 3 T. R. 371;
Blackett v. Exch. Co. 2 Cr. & J. 249;
Doe D. Lea, 11 East, 812; Yates v.
Pym, 6 Taunt. 446 ; Sotilichos v.
Kemp, 3 Ex. R. 105 ; Holding v.
Pigott, 7 Ring. 465, 474; 5 M. & P.
427, S. C; Clarke «. Roystone, 13
M. & W. 752; Yeats v. Pim, Holt N.
P. R. 95; nom. Yates v. Pym, 6 Taunt.
446, S. C. ; Trueman v. Loder, 11 A.
& E. 589; 3 P. & D. 267, S. C; Mun-
cey V. Dennis, 1 H. & N. 216; Suse v.
194
Pompe, 8 Com. B. N. S. 538 ; Buckle
V. Knoop, 36 L. J. Ex. 49 ; Insurance
Co. V. Wright, 1 Wall. 456 ; Moran
V. Prather, 28 Wall. 499; Cabot v.
Winsor, 1 Allen, 546 ; Dodd v. Far-
low, 11 Allen, 426; Luce v. Ins. Co.
105 Mass. 297 ; Davis v. Galloupe, 111
Mass. 121 ; Thompson v. Ashton, 14
Johns. 317; Woodruff v. Bank, 25
Wend. 673; Schenck v. Griffin, 38 N.
J. L. 462; Coxe v. Heisley, 19 Penn.
St. 243 ; Wetherill v. Neilson, 20
Penn. St. 448 ; Willmering v. Mc-
Gaughey, 80 Iowa, 205 ; Lombardo ».
Case, 45 Barb. 95 ; Glendale Co. v.
Ins. Co. 21 Conn. 19; Farm. 8e Mech.
Bk. V. Sprague, 52 N. Y. 605 ; Sim-
mons B. Law, 4 Abb. (N. Y.) App.
CHAP, xn.]
DOCUMENTS MODIFIED BY PAROL.
[§ 959.
broker under a written contract, which stipulated that payment
should be made by bills, Lord EUenborough rejected evidence of
a custom, that hills meant approved bills.^ So where linseed was
bought to be delivered at Hull, and " fourteen days to be al-
lowed for its delivery from the time of the ship's being ready to
discharge," evidence to show that this stipulation was intended
by the parties for the benefit, not of the seller, but of the buyer,
who had the option of accepting the seed during any portion of
the fourteen days, was rejected.^
§ 959. Wherever, in other words, it appears from the instru-
ment, either expressly or impliedly, that the parties did not mean
to be governed by an alleged custom, evidence of the custom
cannot be received.^ Thus if the custom of the country should
require the tenant to plough, sow, and manure a certain portion
Dec. 241 ; Osgood v. McConnell, 32 the hesitating strain in which it is
111. 74 ; Marc v. Kupfer, 34 111. 287 ;
Sanford v. Rawlings, 43 111. 92; Raert
V. Scroggins, 40 Ind. 195; Spears v.
Ward, 48 Ind. 541 ; Werner v. Foot-
man, 54 Ga. 128 ; Sugart v. Mays, 54
Ga. 554; Jackson v. Beling, 22 La.
An. 377; Mangum v. Ball, 43 Miss.
288; Harvey v. Cady, 3 Mich. 431.
The impolicy of expanding the rule
admitting this kind of evidence is thus
discussed by Lord Denman : " If a
legislator were called to consider the
expediency of passing a law upon this
subject, the conclusion at which he
would arrive is hardly open to a doubt.
He would decide at once that the
written contract must speak for itself
on all occasions; that nothing should
be left to memory or speculation.
There is no inconvenience in requir-
ing parties making written contracts
to write the whole of their contracts;
while, in mercantile affairs, no mis-
chief can be greater than the uncer-
tainty produced by permitting verbal
statements to vary bargains commit-
ted to writing. But the nature of this
explanatory evidence renders it pe-
culiarly dangerous. Those who have
heard it must have been struck with
given by men of business, and their
wish to secure the correctness of their
answer by referring to the written doc-
ument. Again, what can be more
difficult than to ascertain, as a matter
of fact, such a prevalence of what is
called a custom in trade as to justify
a verdict that it forms a part of every
contract ? Debate may also be fairly
raised as to the right of binding
strangers by customs probably un-
known to them ; a conflict may exist
between the customs of two different
places ; and supposing all these diffi-
culties removed, and the custom fully
proved, still it will almost always re-
main doubtful whether the parties to
the individual contract really meant
that it should include the custom."
Trueman v. Loder, 11 A. & E. 597,
598. To the same effect is an opinion
of Judge Story in The Schooner Ree-
side, 2 Sumn. 567.
1 Hodgson V. Davies, 2 Camp. 532,
approved of by Ld. Denman in True-
man V. Loder, 11 A. & E. 599.
2 Sotilichos V. Kemp, 3 Ex. R. 106.
« Button V. Warren, 1 M. & W.
477, per Parke, B. See Clarke v.
Roystone, 13 M. & W. 752.
195
§ 959.]
THE LAW OF EVIDENCE.
[book II.
of the demised land in the last year, and should entitle him, on
quitting, to receive from the landlord a reasonable compensation
for his labor, seeds, and manure ; evidence of such a custom
vcould be rejected, had the tenant covenanted to plough, sow,
and manure, in accordance with the custom, he being paid on
quitting for the ploughing?-
1 1 M. & W. 477, 478; Webb v.
Plummer, 2 B. & A. 746.
In a case ia 1870, before the supreme
court of the United States, the topic
in the text was ably discussed on the
following facts : I. , a wool importer
in Boston, sent to D., a dealer in wool
at Hartford, samples of foreign wool
in bales which he had for sale, on
commission, with the prices, and D.
offered to purchase the different lots
at the prices, if equal to the samples
furnished. 1. accepted the offer, pro-
vided D. would come to Boston and
examine the wool on a day named, and
then report if he would take it. D.
accordingly went to Boston, and after
examining certain of the bales as fully
as he desired, and being offered an
opportunity to examine all the remain-
ing bales, and to have them opened
for his inspection (which offer he de-
clined), purchased. The wool proved,
I. knowing nothing of it, to have been
deceitfully packed, and on further
examination was shown to be rotten
and damaged wool, with tags con-
cealed by an outer covering of fleeces
in their ordinary state. On an action
brought by D. to recover damages
from I., it was ruled that the sale was
not orte by sample; and there having
been no express warranty that the
bales not examined should correspond
with those which were, nor any cir-
cumstances from which the law could
imply such a warranty, that the rule
of caveat emptor applied. It was fur-
ther determined that proof could not
be received to vary the contract, that
by the custom of merchants and deal-
196
ers in wool in bales, at Boston and
New York, the two principal markets
of the country for foreign wool, there
is an implied warranty of the seller to
the purchaser that the same is not
falsely or deceitfully packed, — espe-
cially where the parties did not know
of the custom. " It is to be regret-
ted," said Davis, J., " that the deci-
sions of the courts, defining what local
usages may or may not do, have not been
uniform. In some judicial tribunals
there has been a disposition to narrow
the limits of this species of evidence,
in others, to extend them; and on this
account mainly the conflict in deci-
sion arises. But if it is hard to rec-
oncile all the cases, it may be safely
said they do not differ so much in
principle, as in the application of the
rules of law. The proper office of a
custom or usage in trade is to ascer-
tain and explain the meaning and in-
tention of the parties to a contract,
w-hether written or in parol, which
could not be done without the aid of
this extrinsic evidence. It does not
go beyond this, and is used as a mode
of interpretation on the theory that
the parties knew of its existence, and
contracted with reference to it. It is
often employed to explain words or
phrases in a contract of doubtful sig-
nification, or which may be under-
stood in different senses, according to
the subject matter to which they are
applied. But if it be inconsistent with
the contract, or expressly or by neces-
sary implication contradicts it, it can-
not be received in evidence to affect
it. See Notes to Wigglesworth i>.
CHAP. XII.]
DOCUMENTS MODIFIED BY PAROL.
[§960
§ 960. Even parol proof that
contract should be- subjected to
Dallison, 1 Sihith's Leading Cases,
498; 2 Parsons on Contracts, §§ 9, 535;
Taylor on Evidence, 94.S, and follow-
ing. ' Usage,' says Lord Lyndhurst,
' may be admissible to explain what is
donbtful ; it is never admissible to
contradict what is plain.' Blackett v.
Eoyal Exchange Assur. Co. 2 Cromp-
ton & Jervis, 249. And it is well set-
tled that usage cannot be allowed to
subvert the settled rules of law. See
note to 1st Smith's Leading Cases,
supra. Whatever tends to unsettle
the law, and make it different in the
different communities into which the
state is divided, leads to mischievous
consequences, embarrasses trade, and
is against public policy. If, therefore,
on a given state of facts, the rights
and liabilities of the parties to a con-
tract are fixed by the general prin-
ciples of the common law, they cannot
be changed by any local custom of the
place where the contract was made.
In this case the common law did not,
on the admitted facts, imply a war-
ranty of the good quality of the wool,
and no custom in the sale of this arti-
cle can be admitted to imply one. A
contrary doctrine, says the court, in
Thompson v. Ashton, 14 Johnston, 317,
' would be extremely pernicious in its
consequences, and render vague and
uncertain all the rules of law on the
sales of chattels.'
" In Massachusetts, where this con-
tract was made, the more recent de-
cisions on the subject are against the
validity of the custom set up in this
case. In Dickinson v. Gay, 7 Allen,
29, which was a sale of cases of sat-
inets made by samples, there were,
in both the samples and the goods, a
latent defect not discoverable by in-
spection, nor until the goods were
printed, so that they were unmer-
the parties agreed that a written
a usage conflicting with the writ-
chantable. It was contended that by
custom there was in such a case a war-
ranty implied from the sale that the
goods were merchantable. But the
court, after a full review of all the au-
thorities, decided that the custom that
a warranty was implied, when by law
it was not implied, was contrary to the
rule of the common law on the sub-
ject, and therefore void. If anything,
the case of Dodd o. Farlow, 11 Allen,
426, is more conclusive on the point.
There, forty bales of goat-skins were
sold, by a broker, who put into the
memorandum of sale, without author-
ity, the words ' to be of merchantable
quality and in good order.'
" It was contended that by custom,
in all sales of such skins, there was an
implied warranty that they were of
merchantable quality, and, therefore,
the broker was authorized to insert
the words ; but the court held the
custom itself invalid. They say : ' It
contravenes the principle which has
been sanctioned and adopted by this
court, upon full and deliberate consid-
eration, that no usage will be held
legal or binding on parties, which not
only relates to and regulates a partic-
ular course or mode of dealing, but
which also engrafts on a contract of
sale a stipulation or obligation which
is inconsistent with the rule of the
common law on the subject.' It is
clear, therefore, thati,in Massachusetts,
where the wool was sold, and the seller
lived, the usage in question would not
have been sanctioned.
" In New York, there are some
cases which would seem to have adopt-
ed a contrary view, but the earlier
and later cases agree with the Massa-
chusetts decisions. The question in
Frith V. Barker, 2 Johnson, 327, was,
whether a custom was valid, that
197
§ 960.]
THE LAW OF EVIDENCE.
[book II.
ing is inadmissible, unless fraud or gross concurrent mistake be
proved ; for tbis would be contradicting the writing by parol
freight must be paid on goods lost
by peril of the sea, and Chief Jus-
tice Kent, in deciding that the custom
was invalid, says : ' Though usage is
often resorted to for explanation of
commercial instruments, it never is, or
ought to be, received to contradict a
settled rule of commercial law.' In
Woodruff V. Merchants' Bank, 25
Wendell, 673, a usage in the city of
New York, that days of grace were
not allowed on a certain description of
commercial paper, was held to be ille-
gal. Nelson, Chief Justice, on giving
the opinion of that court, says : ' The
effect of the proof of usage in this
case, if sanctioned, would be to over-
turn the whole law on the subject of
bills of exchange in the city of New
York ; ' and adds, ' if the usage pre-
vails there, as testified to, it cannot be
allowed to control the settled and ac-
knowledged law of the state in respect
to this description of paper.' And in
Beirne v. Dord, 1 Selden, 95, the evi-
dence of a custom that in the sale of
blankets, in bales, where there was no
express warranty, the seller impliedly
warranted them all equal to a sample
shown, was held inadmissible, because
contrary to the settled rule of law on
the subject of chattels. But the latest
authority in that state on the subject is
the case of Simmons v. Law, 3 Keyes,
219. That was an action to recover
the value of a quantity of gold dust
. shipped by Simmons from San Fran-
cisco to New York, on Law's line of
steamers, which was not delivered.
An attempt was made to limit the lia-
bility of the common carrier beyond
the terms of the contract in the bill of
lading, by proof of the usage of the
trade, which was well known to the
shipper, but the evidence was rejected.
The court, in commenting on the ques-
198
tion, say : ' A clear, certain, and dis-
tinct contract is not subject to modi-
fication by proof of usage. Such a
contract disposes of all customs by its
own terms, and by its terms alone is
the conduct of the parties to be regu-
lated, and their Uability to be deter-
mined.'
"In Pennsylvania this subject has
been much discussed, and not always
with the same result. At an early
day the supreme court of the state
allowed evidence of usage, that in the
city of Philadelphia the seller of cot-
ton warranted against latent defects,
though there were neither fraud on
his part or actual warranty. Snowden
V. Warder, 3 Rawle, 101. Chief Jus-
tice Gibson at the time dissented from
the doctrine, and the same court in
later cases has disapproved of it;
Coxe V. Heisley, 19 Pennsylvania
State, 243 ; Wetherill v. Neilson, 20
Ibid. 448; and now hold that a usage,
to be admissible, ' must not conflict
with the settled rules of law, nor go
to defeat the essential terms of the
contract.' It would unnecessarily
lengthen this opinion to review any
further the American authorities on
this subject. It is enough to say, as a
general thing, that they are in har-
mony with the decisions already no-
ticed. See the American note to
Wigglesworth v. Dallison, 1 Smith's
Leading Cases, where the cases are
collected and distinctions noticed.
" The necessity for discussing this
rule of evidence has often occm-red in
the highest courts of England, on ac-
count of the groat extent and variety
of local usages which prevail in that
country, but it would serve no useful
purpose to review the cases. They
are collected in the very accurate
English note to Wigglesworth v. Dal-
CHAP. Xn.] DOCUMENTS MODIFIED BY PAROL.
[§ 961.
evidence, and substituting an inferior and treacherous medium of
proof for that which is superior and which is solemnly adopted by
the parties as expressing their purposes.-' It is, however, admis-
sible to prove that the course of business between the parties
gave to certain terms used by them a distinctive meaning.^
§ 961. Where, however, a dispositive writing employs ambig-
uous terms, usage can be appealed to, to give a defini- otherwise
tion of such terms, and to explain, not to vary, the f.''^" ^™-
_ jr ' J ■> biguous
writing. What is meant, is the question, by these business
. T . -, , . ... 1 terms are
terms. And in order to answer this question it is ad- to be ex-
missible to show a local custom or usage affixing a par-
ticular meaning to such ambiguous terms, provided such evi-
dence be explicatory of the meaning of the parties, and does not
contradict the tenor of the instrument.^ Parties, preparing a
lison, and are not different in princi-
ple from the general- current of the
American cases. If any of the eases
are in apparent conflict, it is not on
account of any difference in opinion
as to the rules of law which are ap-
plicable. ' These rules,' says Chief
Justice Wilde, in Spartali v. Benecke,
10 Qommon Bench, 222, ' are well set-
tled, and the difficulty that has arisen
respecting them has been in their ap-
plication to the varied circumstances
of the numerous cases in which the
discussion of them has been in-
volved.' But this difficulty does not
exist in applying these rules to the
circumstances of this case. It is ap-
parent that the usage in question was
inconsistent with the contract which
the parties chose to make for them-
selves, and contrary to the wise rule
of law governing the sale of personal
property. It introduced a new ele-
ment into their contract, and added
to it a warranty which the law did
not raise, nor the parties intend it to
contain. The parties negotiated on
the basis of caveat emptor, and con-
tracted accordingly. This they had
the right to do, and by the terms of
the contract the law placed on the
buyer the risk of the purchase, and
relieved the seller from liability for
latent defects. But this usage of
trade steps in and seeks to change
the position of the parties, and to im-
pose on the seller a burden which the
law said, on making his contract, he
should not carry. By this means a
new contract is made for the parties,
and their rights and liabilities under
the law essentially altered. This, as
we have seen, cannot be done. If
the doctrine of caveat emptor can be
changed by a special usage of trade,
in the manner proposed, by the cus-
tom of dealers of wool, in Boston,
It is easy to see it can be changed
in other particulars, and in this way
the whole doctrine frittered away."
Davis, J., Barnard v. Kellogg, 10
Wall. 383.
1 Oelricks v. Ford, 23 How. 49.
« See infra, § 961.
8 Webb V. Plummer, 2 B. & Aid.
746 ; Wigglesworth v. Dallison, 1
Smith's Lead. Cas. 498 ; Spicer v.
Hooper, 1 Q. B. 424 ; Chanrand v.
Augerstein, Peake's N. R. Cases, 43 ;
Cochran v. Petburgh, 3 Esp. 121 ;
199
§ 961.]
THE LAW OF EVIDENCE.
[book n.
document in a place or trade where certain terms have a cus-
tomary meaning, may be interpreted as using these terms in
the meaning thus customary. Thus under a contract to carry
Evans v. Pratt, 3 M. & Gr. 759 ;
Smith V. Wilson, 3 B. & A. 728 ;
Roberts v. Barker, 1 Cr. & M. 808;
Hughes v. Gordon, 1 Bligh, 287; Cli-
nan v. Cooke, 1 Sch. & L. 22; Buckle
V. Knoop, L. R. 2 Ex. 122 ; Taylor v.
Briggs, 2 C. & P. 525 ; Taylor v.
Clay, 9 Q. B. 713 ; Adams v. Royal
Mail Steam Packet Co. 5 C. B. (N.
S.) 493; Leidman v. Schultz, 14 C.
B. 38 ; Robertson v. Jackson, 2 C. B
412; Grant t). Paxton, 1 Taunton, 463;
Planche v. Fletcher, 1 Doug. 821 ; Elton
V. Larkins, 8 Bing. 198; Hudson v. Ede,
Law Rep. 3 Q. B. 412; 1 Arnould on
Ins. (2 Amer. ed.) 71, note; Insurance
Co. V. Wright, 1 Wallace, 456, 485
Sturgis V. Gary, 2 Curtis C. C. 362
Barnard v. Adams, 10 How. 270
Barnard v. Kellogg, 10 Wall. 383
Robinson v. U. S. 13 Wall. 363; Far-
rar v. Stackpole, 6 Greenl. 154; Stone
V. Bradbury, 14 Me. 185 ; George v.
Joy, 1 9 N. H. 544 ; Hart v. Hammett,
18 Vt. 127 ; Patch v. Ins. Co. 44 Vt.
481 ; Murray i'. Hatch, 6 Mass. 465 ;
Eaton V. Smith, 20 Pick. 150; Luce
V. Ins. Co. 105 Mass. 297; Howard v.
Ins. Co. 109 Mass. 387; Schnitzer v.
Print Works, 114 Mass. 123 ; Page
V. Cole, 120 Mass. 37; Avery v. Stew-
art, 2 Conn. 69 ; Collins o. DriscoU,
34 Conn. 43 ; Astor v. Ins. Co. 7 Cow.
202; Hinton v. Locke, 5 Hill, 437;
Hulbert v. Carver, 37 Barb. 62; Dana
V. Fiedler, 12 N. Y. 40; Markham
V. Jaudon, 41 N. Y. 235 ; Dent v.
S. S. Co. 49 N. Y. 390 ; Walls v.
Bailey, 49 N. Y. 464 ; Lawrence v.
Maxwell, 53 N. Y. 21 ; CoUender u.
Dinsmore, 55 N. Y. 204 ; Harris v.
Rathbun, 2 Abb. (N. Y.) App. 326 ;
Smith V. Clayton, 5 Dutch. (29 N. J.
L.) 337 ; Hartwell ii. Camman, 10 N.
200
J. Eq. 1 28 ; New Jersey Co. v. Bos-
ton Co. 15 N. J. Eq. 418 ; Brown v-
Brooks, 25 Penn. St. 210; Meighen v.
Bank, 25 Penn. St. 288; Carey v.
Bright, 58 Penn. St. 70 ; McMasters
V. R. R. 69 Penn. St. 374; WilUams
V. Woods, 16 Md. 220; Merick v. Mc-
Nally, 26 Mich. 374 ; Whittemore v.
Weiss, 33 Mich. 348; Prather v.
Ross, 17 Ind. 495 ; Myers v. Walker,
24 III. 133 ; Galena Ins. Co. v. Kup-
fer, 28 III. 332 ; Hooper v. R. R. 27
Wise. 81 ; Lamb v. Klaus, 30 Wise.
94 ; Johnson v. Ins. Co. 39 Wise. 87 ;
Reynolds v. Jourdan, 6 Cal. 108 ;
Jenny Lind Co. v. Bower, 11 Cal.
194; Drake v. Goree, 22 Ala. 409;
Cowles V. Garrett, 30 Ala. 341 ; Sou-
tier V. Kellerman, 18 Mo. 509; Tay-
lor V. Sotolingo, 6 La. An. 154. See,
also, Moran v. Prather, 23 Wall. 499,
citing Seymour v. Osborne, 11 Wall.
546.
" Evidence may be given of a cus-
tom or usage in explanation and ap-
plication of particular words or phrases,
and to aid in the interpretation of the
contract, but not to derogate from the
rights of the parties, or to import into
the contract new terms and condi-
tions, or vary the legal effect of the
transaction." Allen, J., Lawrence v.
Maxwell, 53 N. Y. 21.
" In Barnard t>. Kellogg, 10 Wal-
lace, 383, this court decided that proof
of a custom or usage inconsistent with
a contract, and which either expressly
or by necessary implication contra-
dicts it, cannot be received in evidence
to affect it ; and that usage is not al-
lowed to subvert the settled rules of
law. But we stated at the same time
that custom or usage was properly re-
ceived to ascertain and explain the
CHAP. XII.] DOCUMENTS MODIFIED BY WITNESSES.
[§ 961.
a full and complete, cargo of molasses from London to Trinidad,
evidence has been received to qualify the contract by shovying
that a cargo is full and complete, if the ship be filled with
casks of the standard size, although there be smaller casks of
other produce freighted in the same vessel.^ Where a writing
promises to pay the "product" of hogs, parol testimony is
admissible to prove what such product is ; ^ and where an Irish
corn merchant sends written instructions to his del credere agent
meaning and intention of the parties
to a contract, whether written or
parol, the meaning of which could not
he ascertained without the aid of such
extrinsic evidence, and that such evi-
dence was thus used on the theory
that the parties knew of the existence
of the custom or usage and contracted
in reference to it. This latter rule is
as well settled as the former ; 1 Smith's
Leading Cases, p. 386, 7th edition ;
and under it the evidence was rightly
received." Davis, J., Robinson v.
United States, 13 Wallace, 365.
" Mercantile contracts are very
commonly framed in a language pe-
culiar to merchants ; the intention of
the parties, though perfectly well
known to themselves, would often be
defeated if the language were strictly
construed according to its ordinary
import in the world at large. Evi-
dence, therefore, of mercantile custom
and usage is admitted in order to ex-
pound it and arrive at its true mean-
ing. Again, in all contracts as to the
subject matter of which a known usage
prevails, parties are found to proceed
with the tacit assumption of those
usages; they commonly reduce into
writing the special particulars of their
agreement, but omit to specify those
known usages which are included,
however, as of course, by mutual un-
derstanding ; evidence, therefore, of
such incidents is receivable. The
contract, in truth, is partly express
and in writing ; partly implied or un-
derstood and unwritten. But in these
cases a restriction is established on
the soundest principle, that the evi-
dence received must not be a particu-
lar which is repugnant to or incon-
sistent with the writ en contract.
Merely that it varies the apparent
contract is not enough to exclude the
evidence ; for it is impossible to add
any material incident to the written
terms of a contract without altering
its effect more or less ; neither in the
construction of a contract among mer-
chants, tradesmen, or others, will the
evidence be excluded because the
words are, in their ordinary meaning,
unambiguous, for the principle of ad-
mission is, that words perfectly unam-
biguous in their ordinary meaning are
used by the contractors in a differ-
ent sense from that. What words
more plain than ' a thousand,' ' a
week,' ' a day ? ' Yet the cases are
familiar in which ' a thousand ' has
been held to mean twelve hundred ;
' a week ' only a week during the the-
atrical season ; ' a day ' a working
day. In such cases the evidence
neither adds to, nor qualifies, nor con-
tradicts, the written contract — it only
ascertains it by expounding the lan-
guage." Per Coleridge, J., Browne
V. Byrne, 3 E. & B. 703 ; Powell's
Evidence, 4th ed. 429.
1 Cuthbert v. Cumming, 11 Ex.
405.
a Stewart v. Smith, 28 111. 397.
201
§ 961.J THE LAW OF EVIDENCE. [BOOK H.
in London to sell some oats " on Ms account" parol evidence
is admissible on the agent's part, for the purpose of showing
that, by the custom of the London corn trade, he is war-
ranted, under these instructions, in selling in his own name.^
Where a deed uses the term " north," it is admissible, in ex-
planation of the term, to show a usage to run the courses by
the magnetic meridian.^ So, though according to the general
import of the words " at and from," a policy would attach upon
the ship's first mooring in a harbor on the coast ; yet, where
these expressions are employed in a Newfoundland policy, they
may be explained by evidence of usage to mean, that the risk
should not commence till the expiration of the fishing, tech-
nically called " banking," or of an intermediate voyage.^ Evi-
dence of usage, also, is admissible, in a suit on a written con-
tract of sale, to show the meaning of " good merchantable ship-
ping hay ; " * on a similar contract for boots, to show the meaning
of "good custom cowhide;"^ and on a similar contract for a
machine, to show the meaning of " team." ® It has also been held
admissible to show that by the dominant usage an inferior kind
of palm oil answers to the description of "best palm oil;"'
and that by the custom of the building trade the words " weekly
accounts " refer to regular day work only ; ^ and that credit for
" six or eight weeks," does not necessarily give the whole eight
weeks for payment for goods.^ So, to explain the meaning of the
term with " all faults," evidence is admissible to prove that these
terms have a customary meaning in a contract for the sale of
goods.^''
1 Johnstone v. Usborne, 11 A. & E. i" Whitney v. Boardman, 118 Mass.
549. 242.
^ Jenny Lind Co. v. Bower, 11 Cal. " The expression in the contract,
194. by which the defendants agreed to
» Vallance t'. Dewar, 1 Camp. 503. purchase the Cawnpore buflfalo hides
See Eldredge v. Smith, 13 Allen, 140. with ' all faults' was one of such a
^ Fitch t'. Carpenter, 43 Barb. 40. character that, if in common use and
' Wait V. Fairbanks, Brayt. (Vt.) having a well established meaning in
77. the trade in such articles, such mean-
° Ganson t). Madigan, 15 Wise. 144. ing might properly be shown. It is
' Lucas V. Bristow, E., B. & E. 907. not necessary that words should be
' Myers v. Sari, 3 E. & E. S06. technical, scientific, or ambiguous in
° Ashwell V. Retford, L. R. 9 C. P. themselves, in order to entitle a party
20; 43 L. J. C. P. 57. to show by parol evidence the mean-
202
CHAP. XII.]
DOCUMENTS MODIFIED BY PAROL.
[§ 961 a.
§ 961 a. It has also been held admissible to admit proof of usage
to show that in a contract for " freight," " freight " does not in-
clude " hay ; " 1 to show the meaning of the term " dollars ; " ^ to
show the difference between "comediennes" and "danseuses"
in a written engagement for the services of a dancing girl ; ^ to
determine whether " per square yard," in a contract for plastering
ing attached to them by the parties to
the contract. Whitmarsh v. Conway
Ins. Co. 16 Gray, 359 ; Miller v. Ste-
vens, 100 Mass. 518; Swett u. Shum-
way, 102 Mass. 365. Nor does it ap-
pear by the exceptions that any evi-
dence was admitted that gave to these
words any meaning different from that
which the presiding judge attributed
to them in the instruction given by
him, based upon the hypothesis that
the jury might find that there was no
meaning determined by the general
usage of trade. This instruction sub-
stantially was, that while the plaintiffs
must prove that the hides were ' Cawn-
pore buffalo hides,' known and sold as
such ; yet if the defendants got the ar-
ticles contracted for, having agreed to
take them 'with all faults,' they were
bound to take them with ' all defects
arising in any way either from defects
in the cure, or in the packing, or in
the shipping or transporting of the
hides, not however included in the
term sea damage.' For the contin-
gency of damage by sea an allowance
was to be made according to the con-
tract, in the price. The defendants
argue that this instruction was defect-
ive, and that it was not only necessary
for the plaintiffs to show that these
were Cawnpore hides, but also that
they were ' properly cured, as such
hides should be cured, properly packed,
and of merchantable quality. '
" But the phrase, ' with all faults,'
cannot be limited, as the defendants
contend, 'to all such faults or defects
as the thing described ordinarily has.'
That would be to deprive it of force
entirely. Its meaning is, such faults
or defects as the thing might have,
retaining still its character and iden-
tity as the article described. The
authorities cited by the defendants
sustain this view, and not the one
contended for by them. Thus in
Shepherd v. Kain, 5 B. & Aid. 240,
cited in Henshaw v. Robins, 9 Met.
83, it was held that in the sale of a
copper-fastened vessel ' with all faults,'
the term meant such faults as a cop-
per-fastened vessel might have, but
that it would not cover the sale of a
vessel not copper-fastened. The only
other authority cited by the defend-
ants on this point is Schneider v.
Heath, 3 Camp. 506, which decides
no more than that ' to be taken with
all faults ' cannot avail a vendor who
knew of secret defects, and used means
to prevent the buyer from discovering
them. A similar limitation was given
by the presiding judge in the present
case. Nor, if the phrase ' with all
faults ' had not been in the contract,
is it easy to see how the defendants
could have demanded anything more
than that the article bought by them
should answer the description of
' Cawnpore buffalo hides.' Gossler v.
Eagle Sugar Refinery, 103 Mass. 331;
Boardman v. Spooner, 13 Allen, 353,
359." Devens, J., Whitney v. Board-
man, 118 Mass. 246.
1 Noyes v. Canfield, 29 Vt. 79. See
Peisch V. Dickson, 1 Mason, 11.
2 Supra, § 948.
« Baron v. Placide, 7 La. An. 229.
203
§ 961 a.]
THE LAW OF EVIDENCK.
[book n.
relates to the plastering actually laid on, or to the whole surface
of the house to be plastered ; ^ to settle the number of hours in a
measurement of labor at so much " per day ; " ^ to determine the
area of mason work covered by the term of so much " per foot ; " '
to determine the meaning of " per thousand " in a contract for
furnishing bricks ;* to determine in what way the limit " not less
than one foot high "is to be construed in a contract to furnish
young trees ; ^ to show the meaning of " square yards " in a con-
tract for payment by measurement ; ^ to prove by parol the mean-
1 Walls V. Bailey, 49 N. Y. 467.
See Hill v. McDowell, 14 Penn. St.
175.
2 Hinton v. Locke, 5 Hill, 437.
8 Ford V. Tirrell, 9 Gray, 401.
* Lowe V. Lehman, 15 Oh. St. 179.
' Barton v. McKelway, 22 N. J. L.
165.
" The authorities as to measurement
are well grouped in the following
opinion : —
" The contract between the parties
was in writing. By it the plaintiffs
were to furnish the material for the
plastering work of the defendant's
house, and to do the work of laying it
on. The defendant was to pay them
for the work and material a price per
square yard. Of course, the total of
the compensation was to be got at by
measurement. But when the parties
came to determine how many square
yards there were, they differed. The
query was, the square yards of what ?
Of the plaster actually laid on, or of
the whole side of the house, calling it
solid, with no allowance for the open-
ings by windows and doors ?
"And it is not to be said of this
contract, that it was so plain in its
terms that there could be but one con-
clusion as to the mode of- measure-
ment, by which the number of square
yards of work should be arrived at.
It is in this case as it was in Hinton v.
Locke, 5 Hill, 437. There the work
was done at so much per day. The
204
parties there differed as to how many
hours made a day's work. That is,
what should be the measurement of
the day V And there, evidence of the
usage was admitted, not to control any
rule of law, nor to contradict the agree-
ment of the parties, but to explain an
ambiguity in the contract. And the
proof showing a usage among carpen-
ters that the day was to be measured
by the lapse of ten hours, it was held
a valid usage; and the contract was
interpreted in accordance with it.
"In Ford v. Tirrell, 9 Gray, 401,
the contract was to build the wall of
an octangular cellar, at the rate of
eleven cents per foot. The only ques-
tion was as to the mode of measure-
ment. The defendant contended that
the inner surface of the wall should
be the rule. The plaintiff claimed
that an additional allowance should
be made for the necessary work at the
angles to support the building. It was
held that the agreement as to the com-
pensation was equivocal and obscure,
and that it was competent to pi-ove a
local usage of measuring cellar walls,
in order to interpret the meaning of
the language, and to ascertain the ex-
tent of the contract.
" So in Lowe v. Lehman, 15 Oh. St.
179, in a contract to furnish and lay up
brick at so much per thousand, the con-
troversy was as to the proper mode of
counting. Evidence of a local usage, to
estimate by measurement of the walls,
CHAP. Xn.] DOCUMENTS MODIFIED BY PAROL.
[§ 961 a.
ing of the words " we^ks," used in a theatrical contract ; ' of
" months," as meaning calendar months in a charter-party ; ^
of " days," as meaning working days in a bill of lading ; ^ of
" corn," ^ " pig-iron," ^ " salt," ^ and of similar expressions used
in transportation contracts, or in policies of insurance.'^ On the
same principle, evidence has been admitted to show that, by
usage in the hop trade, a sale of " ten pockets of Kent hops at
£5," means £5 per cwt.^ So, where goods having been sent
to a London packer to prepare for exportation, he acknowledged
their receipt " on account of the vendor for the vendee," evidence
of usage was admitted to prove that when packers signed re-
ceipts in this form, it was their duty not to part with the goods
without the vendor's further orders.^ Again : where a written
contract contained a stipulation that a party should "lose no
time on his own account, and do his work well, and behave him-
self in all respects as a good servant," extrinsic evidence was re-
ceived to show that, by the custom of his trade, such a party was
entitled to certain holidays.^" In all cases, so it has been ruled,
where a word is used which is susceptible of two or more mean-
ings,^^ extrinsic evidence is admissible of the usage or course
on a uniform rule, based on the aver-
age size of brick, making slight ad-
dition for extra work and wastage, de-
ducting for openings in wall, but not
for openings in chimneys nor jambs,
nor for caps, sills, nor lintels, was ad-
mitted as not unreasonable. So in
Barton v. McKelway, 2 Zabriskie, 22
N. J. 165, in a contract to deliver cer-
tain trees from a nursery, they were
to be not less than one foot high.
The dispute was as to the measure-
ment; and evidence was held compe-
tent of a usage in that trade to measure
only to the top of the ripe, hard wood,
and not to the tip of the tree. See,
also, Wilcox y.Wood, 9 Wendell, 346;
Grant v. Maddox, 15 M. & W. 737."
Folger, J., Walls v. Bailey, 49 N.
Y. 467.
1 Grant v. Maddox, 15 M. & W.
737. See Myers v. Sari, 30 L. J. Q.
B. 9; 3E. &E. 306, S. C.
' Jolly U.Young, 1 Bsp. 186; recog-
nized in Simpson v. Margitson, 11 Q.
B.32.
s Cochran v. Ketberg, 3 Esp. 121.
* Mason v. Skurray, and Moody
V. Surridge, Park Ins. 245 ; Scott v.
Bourdillon, 2 N. K. 213.
5 Mackenzie ii. Dunlop, 3 Macq.
Sc. Cas. H. of L. 26, per Ld. Cran-
worth, C.
' Journu V. Bourdieu, Park Insur.
245.
' As to " general average," see Mil-
ler V. Tetherington, 6 H. & N. 278;
Kidston v. Ins. Co. L. K. 1 C. P. 635;
S. C. L. R. 2 C. P. 357.
8 Spicer v. Cooper, 1 Q. B. 424.
' Bowman v. Horsey, 2 M. & Rob.
85.
10 R. V. Stoke upon Trent, 5 Q. B.
303.
" Buckle w. Knoop, L. R. 2 Ex. 125 ;
15 W. R. 588.
205
§ 962.] THE LAW OF EVIDENCE, [BOOK H.
of trade at the place where the contract is made, or where it is
to be carried into effect, to explain or remove such doubt. So,
also, where a similar doubt arises as to the lex loci by which
such a contract is to be construed, evidence of usage will be re-
ceived to determine the place. Thus, where the question was
whether goods were to be liable to freight according to their
weight at the place of shipment, or according to their expanded
weight at the place of consignment, the terms of the charter-
party were construed by extrinsic evidence that the usage was
to measure the goods according to their weight at the place of
shipment.^
§ 962. The term " Usage," we must remember, is employed
Usage is to ^^ ^^^ '^^^^^ °^ cases which are here collected in several
be brought distinct senses. First, in construing unilateral writings,
the party guch as letters, wUls, and powers of attorney, " usage "
it is im- may be convertible with habit. In such case, therefore,
'"* ■ we may prove that the writer had a habit of using
certain words in a particular sense, and we may in this way
arrive at the sense in which the words were used in the litigated
writing to be construed.^ Secondly, as to bilateral writings,
when two persons make a written contract, we may inquire, in
construing that contract, what was their course of business, and
we may seek to collect their meaning from their correspondence
or conversation.^ Thirdly, every person conducting a trade is
supposed to use the language of that trade, and in making a con-
tract connected with the trade to use terms in the sense in which
they are accepted in the trade.* " Every underwriter is pre-
sumed to be acquainted with the practice of the trade he in-
sures ; and if he does not know it, he ought to inform himself." ^
Fourthly, all persons living in a district may be supposed to
adopt the peculiarities of expression of such district, and evidence
is therefore admissible of the sense in which litigated words are
1 Bottomley v. Forbes, 6 Bing.N. C. 45; Fabbri v. Ins. Co. 55 N. Y. 1S3.
121; Powell's Evidence, 4th ed. 428. See further infra, § 971.
" Shore V. Wilson, 9 CI. & F. 855. * Meighen v. Bank, 25 Fenn. St.
Supra, § 954; infra, §§ 1008, 1287. 288; Carter ti. Phil. Coal Co. 77 Penn.
* Rushford v. Hatfield, 7 East, 225; St. 286. Supra, § 961.
Barnard ti. Kellogg, 10 Wall. 383; « Noble ». Kennoway, 2 Doug. 51S;
Gray v. Harper, 1 Story, 574 ; Bourne so Da Costa v. Edmunds, 4 Camp. 143,
V. GatlifE, 8 M. & Gr. 648; 11 CI. & F. per Ld. Ellenborough. Infra, § 1243.
206
CHAP. Xn.] DOCUMENTS MODIFIED BY PAROL. [§ 963.
used in such district.^ But in whatever sense the term is em-
ployed, the usage we seek to attach to such term must be
brought home to the writer. In the first two classes of cases
noticed above, this may be done by showing from the writings or
other expressions of the persons charged an adoption of the par-
ticular meaning set up.^ When the usage of a trade exists, by
which certain words are used in a particular sense, then it is
sufficient to show directly or inferentially that the writers be-
longed to this trade. When the local interpretation of a district
is set up, then it must appear that the writer was so identified
with the district as to make it probable that he used words in the
local sense.
§ 963. There are, however, cases in which it must be substan-
tively shown that the party whose writings are to be construed
belonged to the class by whom the contested terms were used in
the assigned sense. Thus, to recur to a case already noticed,
where a party, founding a charity in the early part of the
eighteenth century had, in the deed of grant, described the ob-
jects of her bounty as " godly preachers of Christ's Holy Gos-
pel," and it became necessary to determine, a century after-
wards, what persons were entitled to the charity, extrinsic evi-
dence was admitted to show, that at the time of the grant
a religious sect existed, who applied this particular phrase-
ology to Protestant Trinitarian dissenters, and that the founder
was herself a member of such sect.^ So where a term having
a general and a technical meaning is used in an instrument
to which there are several parties doing business in different
places, we must inquire first as to the place of business of the
party by whom the term is introduced into the contract, and
then as to the local interpretation there attached to the term.*
' Trimby v. Vignier, 1 Bing. (N. also, Att. Gen. v. Drummond, 1 Dru.
C.) 151 ; Clayton v. Gregson, 5 Ad. & & War. 353 ; Drummond v. Att. Gen.
El. 502; De la Vega v. Vianna, 1 2 H. of L. Cas. 837, 857, S. C. on ap-
Barn. & Ad. 284; De Wolf v. John- peal.
son, 10 Wheat. 367; Bank U. S. u. * Whart. Confl. of Laws, § 435 et
Donally, 8 Pet. 308; Pope v. Nicker- seq.; Westlake, Priv. Int. Law, §209
son, 3 Story K. 465. Power v. Whitmore, 1 M. & S. 141
" See Ober v. Carson, 62 Mo. 209. Schmidt v. Ins. Co. 1 Johns. E. 249
« Shore u. Wilson, 9 CI. & Fin. Shiflf v. Ins. Co. 6 Mart. (N. S.) 629
355, 580, per Ld. Cottenham. See, Lenox v. Ins. Co. 3 Johns. Cas. 178.
207
§ 963.] THE LAW OF EVIDENCE. [BOOK II.
It stands to reason, also, that a party against whom a usage is of-
fered may prove that he was ignorant of the usage, and could
not, therefore, have contracted subject to its conditions.^ It has
even been said ^ that if any reason exists for believing that the
opposite party will rely upon usage, the evidence on these points
may be given by way of anticipation. In support of this view
is cited an English case, where the owner of goods brought an
action of assumpsit against a carrier by sea for non-delivery of
the goods to him at the port of London, and the defendant
pleaded that he had delivered them at that port. Under this
state of facts it was held first by the court of exchequer cham-
ber,^ and then by the house of lords,* that the plaintiff might
prove former dealings between himself and the defendant re-
specting the carriage of other goods from the defendant's Lon-
don wharf to the plaintiff's place of business ; as such evidence
was offered, not for the purpose of extending or narrowing the
contract, or in any way changing it, but with the sole view of
meeting a case, which might be made on the other side to estab-
lish a custom of delivery at a wharf. The fact that the evidence
consisted of instances of individual contracts might be open to
observation, but the evidence could not be rejected on, that
ground ; ^ and Lord Brougham observed : " A party may properly
in this way anticipate objections, and introduce evidence of this
sort, which, if he delayed to produce at that moment, would
afterwards be shut out." ^ But to bring home the usage of a
trade to a person engaged in such trade, it is not necessary that
it should be immemorial and universal. It is enough if it
be generally adopted in the trade at the time of the partic-
ular contract.^ The proof must go, not to opinion, but to
fact.8
1 Bourne v. Gatliff, 3 M. & Gr. 384; « 11 CI. & Fin. 71 ; 7 M. & Gr. 866,
Bottomly v. Forbes, 5 Bing. N. C. 127; S. C.
Walls V. Bailey, 49 N. Y. 464. ' Legh v. Hewitt, 4 East, 154; Dal-
" Taylor's Ev. § 1077. by v. Hirst, 1 B. & B. 224; 3 Moore,
= Bourne v. Gatliffe, 3 M. & Gr. 536; Vallance v. Dewar, 1 Camp.
648, 689; 3 Scott N. R. 1, 5. C. 508; Robertson v. Jackson, 2 C. B.
* Ibid.; 11 CI. & Fin. 45, 49, 69- 412.
71 ; 7 M. & Gr. 850, 865, 866, S. C. " Lewis v. Marshall, 7 M. & Gr.
» 11 CI. & Fin. 70, per Ld. Lynd- 744.
hurst, C; 7 M. & Gr. 865, 5. C.
208
CHAP. XU.] DOCUMENTS MODIFIED BY PAKOL.
[§ 965.
■ § 964. Although there were at one time intimations One wit-
to the contrary/ it is now settled that a single witness prove
is sufficient to prove a usage.^ visage.
§ 965. Of the law merchant, as is elsewhere seen, a court
takes judicial notice.* It is otherwise as to local usages, p^ j^ j^
which must be put in proof to the jury as are foreign ?°,E™-^*'* .
laws.* There is an important distinction, however, and must be
between a domestic local usage and a foreign law. A and not '
foreign law is part of an independent jurisprudence, ^°h'the°^
which is accepted, when proved, without regard to the '^/<»^-
question how far it harmoitizes with the lex fori. A domestic
local usage, on the other hand, will not be accepted if it is
unreasonable, or merely transient or partial, or irreconcilable
with the lex fori.^ If it conflicts either with statute,^ or with
1 Wood V. Hickok, 2 Wend. *01;
Boardman v. Spooner, 13 Allen, 359.
2 Robinson v. U. S. 13 Wall. 366.
» Supra, § 298.
* Simpson «. Margitson, 11 Q. B.
32, and cases cited supra, § 315.
' Hodgson V. Davies, 2 Camp. 536
Fleet V. Murton, L. K. 7 Q. B. 124
Barnard u. Kellogg, 10 Wallace, 383
Farnsworth v. Hemmer, 1 Allen, 494
Evans v. Wain, 71 Penn. St. 69. That
a usage, in order to bring it to bear as
that of a trade, must be established,
reasonable, and well known, see Dean
V. Swoop, 2 Binn. 72; Cope v. Dodd,
13 Penn. St. (1 Harris) 33 ; McMas-
ters V. R. R. 69 Penn. St. 374; Ad-
ams V. Ins. Co. 76 Penn. St. 411 ; and
cases cited in Whart. on Agency, §§
40, 126, 676, 700. And see Pittsburg
Ins. Co. V. Dravo, 2 Weekly Notes of
Cases, in which the supreme court of
Pennsylvania, in Oct. 1875, discussed
the usage of " double tripping," in the
towing of barges, as follows : " The
practice of ' double tripping ' was not
so unreasonable that a court, would
take it from the jury as a matter of
legal instruction. Indeed, it would
seem to be really necessary, that when
a large tow is taken with the current,
and there the destination should re-
quire it to be taken up the stream,
that part of the tow should be detached
to enable the tug to tow the remainder
up stream and return for that left be-
hind. If this really constituted the
mode of towing these enormous and
heavily laden barges (and the jury
must determine the fact), and was no-
torious and well known to the insur-
ance company, we cannot say that the
court erred in instructing the jury that
such a usage of trade fell within the
terms and protection of the policy.
The voyage was from Pittsburg to
St. Louis. This necessarily informed
the insurance company that the cur^-
rent of the Mississippi must be stemmed
in conducting the tow to its destina-
tion. The transition to the mode of
doing this was natural to the thought
of those making the insurance. A
single tow-boat conducting a fleet of
these immense barges — holding thou-
sands of bushels of coke or coal —
' Smith V. Wilson, 3 B. & Ad. 731 ; Hockin v. Cooke, 4 T. R. 271; Doe v.
Benson, 4 B. & A. 588.
VOL. II. 14 209
§ 967.]
THE LAW OF EVIDENCE.
[book n.
the common law,^ it cannot be sustained. But if a business
usage be reasonable, and not conflicting with the lex fori, it is
enough, in order to adopt such usage as interpretative of a con-
tract, to show that it is fixed and established in the trade with
which the business is concerned.^
§ 966. Unless there be proof of usage, a judge ought not to
Meaning of leave it to the jury to pronounce on the sense in which
lo™t' u" t^® term was used, but should himself construe the
less there term according to its fixed legal or popular signification,
osage. Thus where an auctioneer gued for a sum he was to re-
ceive by a written contract only if he sold " within two months,"
it was held that, in the absence of admissible extrinsic evidence,
this meant in point of law two lunar months ; and that, unless
the context, or the circumstances of the contract, showed that
the parties meant two calendar months, " the conduct of the
parties to the written contract alone was not admissible to with-
draw the construction of a word therein, of a settled primary
meaning, from the judge and transfer it to the jury.*
§ 967. An agent is authorized to do whatever is usual to ena-
„ , ble him to execute his commission,* though as between
Power of . . . . ."
agent may himself and his principal he is liable if he transgress
be COD~
strued by his Written instructions.^ But as to third parties, the
usage. principal, notwithstanding his private instructions, is
may manage the fleet down stream
(and experience has shown that even
this is often difficult and attended
with danger), hut the immense power
of the tow-boat is inadequate to con-
trol the whole fleet up stream. The
question was therefore one more of
fact than of law. The instruction of
the court being proper as to the usage
of the trade, there might be another
question arising as to the reasonable
exercise of the right of the boatman in
detaching a part of his tow, and leav-
ing it secured in a proper place and
proper manner. On this point the
company might have asked for in-
struction, but, not having done so, the
Penn. St. 430; Evans ». Wain, 71
Penn. St. 69.
2 Lewis V. Marshall, 7 M. & G. 744;
Collins ... Hope, 3 Wash. C. C. 149;
U. S. V. Duval, 1 Gilpin, 372 ; Chico-
pee V. Eager, 9 Mete. 583; Furness
V. Hone, 8 Wend. 247; Snowden v.
Warder, 3 Rawle, 101; Koons v. Mil-
ler, 3 Watts & S. 271 ; Eyre <i. Ins.
Co. 5 Watts & S. 116 ; Pittsburg r.
O'Neill, 1 Barr, 342; Helme v. Ins. Co.
61 Penn. St. 107 ; McMasters «. R.
R. Co. 69 Penn. St. 374; Carter «.
Phil. Coal. Co. 77 Penn. St. 286.
" Simpson v. Margitson, 11 Q. B.
82; Powell's Evidence, 4th ed. 427.
* Whart. on Agency, §§ 126, 134.
6 R. V. Lee, 12 Mod. 514; Farmers'
point is not before us."
1 Co.xe t). Heisley, 19 Penn. St. (7 & Mechanics' Bk. v. Sprague, 52 N,
Harris) 243 ; Jones v. Wagner, 66 Y. 605.
210
CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 968.
bound by the acts of Ms general agent, so far as such acts are
incident to the agency, and the parties privileged by the acts are
ignorant of the private limitations.^ In subordination to the
general rule, however, a power to an agent to sell oil niay be
limited by proof of usage giving the principal the right to reject
vendees of whom he disapproves.^ So a power to an agent to
sell may be interpreted by usage to mean to sell by warranty or
sample.^
§ 968. The importance of usage, as explanatory of ambigu-
ous writings, is peculiarly illustrated by the evidence usage
given as to the meaning of brokers' memoranda, tory of*"
These memoranda, as is elsewhere shown,* are suffi- baker's
' ' memo-
cient to take a sale out of the statute of frauds ; yet ra.adaL.
they are singularly brief, requiring for their interpretation ex-
pansions of meaning which, though now accepted by the courts,
were originally proved by usage.^ Special usages, in reference
to the mode of payment on sales made by brokers, have been
found by juries and adopted by the courts. Thus if goods in
the city of London be sold by a broker, to be paid for by a bill of
exchange, the custom, so found and approved, is for the vendor,
at his election, when goods are payable by a bill of exchange, if
he be not satisfied with the sufficiency of the purchaser, to annul
the contract, provided he take the earliest opportunity of inti-
mating his disapproval ; five days being held not too long a pe-
riod for making the necessary inquiries.^ But, apart from usage,
the rule is to hold the broker's signed memoranda, if there be
such, to be the primary contract between the parties.^
* Davidson v. Stanley, 2 M. & G. 321. See Hodgson v. Davies, supra,
128 ; Brady v. Todd, 9 C. B. N. S. § 968.
592; Bennett u. Lambert, 15 M. &W. 'Alexander v. Gibson, 2 Camp.
489; Schuchardt v. Aliens, 1 Wallace, 555 ; Whart. on Agency, §§ 120, 187,
359; Damon u. Granby, 2 Pick. 345; 739; Dingle w. Hare, 7 C. B. N. S.
Temple v. Pomroy, 4 Gray, 128 ; Rog- 145; Howard o. Shepherd, L. R. 2 C.
ers V. Kneeland, 10 Wend. 218 ; Nel- P. 148 ; Randall v. Kehlor, 60 Me. 37;
son V. R. R. 48 N. Y. 498; Layet v. Morris v. Bowen, 52 N. H. 416 ; Fay
Gano, 17 Oh. 466 ; Cedar Rapids R. v. Richmond, 43 Vt. 25 ; Andrews v.
R. V. Stewart, 25 Iowa, 115; Smith v. Kneeland, 6 Cow. 354.
Supervisors, 59 111. 412; Palmer v. * Supra, § 75; Whart. Agen. § 716.
Hatch, 46 Mo. 585, and cases cited ^ See Whart. on Agency, § 696.
in Whart. on Agen. §§ 40, 126, 676. ' Hodgson v. Davies, 2 Camp. 536,
" Sumner v. Stewart, 69 Penn. St. ' Supra, § 75.
211
§ 969.] THE LAW OF EVIDENCE. [BOOK H.
§ 969. It will hereafter be shown that it may be proved by
parol that the parties to a contract have agreed to col-
incidents laterally extend it ia a mode not inconsistent with its
"eYedto"'" written terms.^ What may be thus done by direct
contract, agreement may be done indirectly by force of a usage
to which the parties are supposed to have agreed.^ Under this
rule it is admissible to prove by parol " any usage or custom by
which incidents not expressly mentioned in any contract are
annexed to contracts of that description ; unless the annexing of
such incident to such contract would be repugnant to or incon-
sistent with the express terms of the contract." ^ Thus to a sale
of a horse it is admissible to annex a customary warranty ; * to
a shipping contract, a usage as to the mode of engaging and pay-
ing crews ; ^ to negotiable paper, silent in this respect, the inci-
dent of customary days of grace ; ^ and to a lease, the reservation
of ripening crops.'^ So, where a quantity of linseed oil had been
sold through London brokers by bought and sold notes, and the
name of the purchaser was not disclosed in the bought note,
evidence was received of a usage of trade in the city, by which
every buying broker who did not, at the date of the bargain,
name his principal, rendered himself liable to be treated by the
vendor as the purchaser.* In suits on written contracts of hir-
ing, also, it has been held admissible to prove a custom that the
servant should have certain holidays ; ^ and that the contract
should be defeasible on giving a month's notice on either side.^"
It has also been held, when mining shares were sold upon the
terms that they should be paid for "half in two, and half in
1 Infra, § 1026. S.) 438; Bond i>. Coke, 71 N. C. 97.
» Ashwell V. Retford, L. R. 9 C. P. See 1 Smith's Lead. Cas. 300. See,
20; Eldredge v. Smith, 13 Allen, 140. however, Wintermute v. Light, 46
See Hatton v. Warren, 1 M. 8e W. Barb. 283.
476, quoted infra, § 1027. « Humfrey v. Dale, 26 L. J. Q. B.
» Stephen's Ev. art. 90. 187 ; 7 E. & B. 266, S. C; Dale v.
* Allen V. Prink, 4 M. & W. 140. Humfrey, 27 L. J. Q. B. 390 ; E., B.
6 Eldredge v. Smith, 13 Allen, 140. & E. 1004, S. C. in Ex. Ch. See
« Renner v. Bank, 9 Wheat. 581. Allan v. Sundius, 1 H. & C. 123; Fleet
' 3 Washb. Real Prop. (4th ed.) v. Murton, L. R. 7 Q. B. 126.
392 ; Wigglesworth v. Dallison, 1 » R. «. Stoke-upon-Trent, 5 Q. B.
Dougl. 201 ; Adams v. Morse, 51 Me. 303.
499 ; Backenstoss ». Stabler, 33 Penn. " Parker v. Ibbetson, 4 C. B. (N.
St. 251 ; Baker v. Jordan, 8 Oh. (N. S.) 348.
212
CHAP. XII.J DOCUMENTS MODIFIED BY •PAKOL.
[§ 971.
four months," but the contract was silent as to the time of their
delivery, that in an action against the purchaser for not accept-
ing and paying for the shares, evidence was admissible of a
usage among brokers', that on contracts for the sale of mining
shares, the vendor was not bound to deliver them without con-
temporaneous payment.^ It has even been held admissible to
attach to bought and sold notes the incident of a sale by sample.'*
§ 970. Such incidents, however, must not conflict with the
writing to which they are to be appended. Thus, it has been
held that a parol reservation of future crops upon the land, ready
for harvest, is void when repugnant to a deed which passes the
grantor's entire estate in the land.^
§ 971. Circumstantial evidence, as we have already seen, is
admissible to prove, when the language is ambiguous, course of
what the parties meant. To such evidence the course adSslbie
of the parties, in dealing with the same subiect matter, '° amWgu-
_ J^ ' _ " _ J ' ous cases.
is an important contribution.*
1 Field V. Lelean, 30 L. J. Ex. 168,
per Ex. Ch.; 6 H. & N. 617, S. C,
overruling Spartali v. Benecke, 10
Com. B. 212. See Godts v. Rose, 17
Com. B. 229. See, also, Bywater v.
Richardson, 1 A. & E. 508; 3 N. & M.
748, S. C; Smart v. Hyde, 8 M. &
W. 723 ; and Foster it. Mentor Life
Assur. Co. 3 E. & B. 48.
^ Cuthbert v. Gumming, 11 Ex. R.
405 ; Lucas v. Brisfow, E., B. & E.
907. See Syers v. Jonas, 2 Exoh. 111.
' Brown v. Thurston, 56 Me. 127 ;
Austin V. Sawyer, 9 Cow. 40 ; Wilkins
ti. Vashbinder, 7 Watts, 378 ; Evans
V. Wain, 71 Penn. St. 69 ; Ring v.
Billings, 51 111. 475 ; Wickersham v.
Orr, 9 Iowa, 253 ; Bend v. Coke, 71
N. C. 97.
* Rushford V. Hadfield, 6 East, 526
7 East, 225; Broome's Maxims, 601
1 Phil, on Ev. 2d Am. ed. 708, 729
Wigram Extrin. Ev. 57, 58; Boor-
man V. Jenkins, 12 Wend. 573 ; Bar-
nard V. Kellogg, 10 AVallace, 383 ;
Robinson «. U. S. 18 Ibid. 363; Gibson
V. Culver, 1 7 Wend. 305 ; Bourne v.
Gatliff, 11 CI. & Fin. 45; 6 East, 228,
229, 526 ; Gray v. Harper, 1 Story, 574;
Clinton V. Hope Ins. Co. 45 N. Y. 460;
and see particularly Bourne v. GatlLff,
3 M. & Gr. 643 ; S. C. 11 CI. & F. 45.
" It was competent for the plaintiffs
to make clear any ambiguity or indefi-
niteness in their application for in-
surance. They could do this by proof
of the course of business and dealing
between them and the defendant;
Russell Manufacturing Co. v. N. H.
St. Boat Co. 50 N. Y. 121 ; S. C. on
second appeal, May, 1873, 52 N. Y.
657; and also (as the one was con-
nected and depended upon the other)
by the course of business and dealing
with other companies, with the knowl-
edge and concert of the defendant.
This did not contradict nor vary, by
parol, the contract of the parties.
Nor did it involve the defendant with
the business of other companies, so as
to make it liable for contracts with
which it had no concern, any further
than the course of business and dealing,
and the contract of the parties to this
213
§ 973.]
THE LAW OF EVIDENCE.
[book II.
§ 972. It is to be remembered that while an expert can give,
... as a matter of fact, a definition of an obscure terra,
expert as to he Cannot be permitted to testify as to a conclusion
tion'oTdoc- of law, Covering the interpretation of the document.^
admUsMe' Thus it has been held, that to permit an expert to be
but other- asked whether it was the duty of the builders in a
WiS6 to CIG~
cipher or building Contract to put in clutch-couplings, is to allow
him to give an opinion covering matter entirely beyond
the functions of a witness, and is error.^ An expert, however,
may be admitted to decipher or explain figures or terms which
an ordinary reader is unable to understand ; ^ and to explain
technical terms.* In order, therefore, " to ascertain the meaning
of the signs and words made upon a document, oral evidence
may be given of the meaning of illegible, or not commonly intel-
ligible' characters, of foreign, obsolete, technical, local, and pro-
vincial expressions ; of abbreviations, and of common words which
from the context appear to have been used in a peculiar sense ; ^
but evidence may not be given to' show that common words, the
meaning of which is plain, and which do not appear from the con-
text to have been used in a peculiar sense, were in fact so used." °
§ 973. It may sometimes happen that a court of equity, or
a court of law exercising equity powers, may impose
upon a particular writing, under the circumstances un-
der which it is brought before the court, an equitable
construction, at variance with the superficial tenor of
Parol evi-
dence ad-
missible to
"rebut an
equity."
action, contemplated by it and framed
upon it, had that effect." Folger, J.,
Fabbri v. Ins. Co. 55 N. Y. 133.
1 Supra, § 485 ; Norment v. Fast-
naght, 1 McArthur, 515; Winans v. E.
K. 21 How. 88; Collyer w. Collins, 17
Abb. (N. Y.) Pr. 467; Ormsbj- v.
Ihmsen, 34 Penn. St. 462; Sanford v.
Rawlings, 43 111. 92.
» Clark V. Detroit, 32 Mich. 848.
' Kell V. Charmer, 23 Beav. 195 ;
Goblet V. Beechey, 8 Sim. 24; Masters
V. Masters, 1 P. Wms. 425 ; Norman
V. Morrell, 4 Ves. 769 ; Wigram on
Wills, 187 ; Stone v. Hubbard, 7
Gush. 595. See supra, § 704.
* Colwell V. Lawrence, 38 Barb.
214
643 ; CoUender v. Dinsmore, 55 N.
Y. 200 ; Wigram on Wills, 61. See
Parke, B., in .Shore v. Wilson, 9 CI.
& F. 555 ; Tindal, C. J. 9 cL & F.
566; and supra, §§ 435, 937-9.
6 See Barnard v. Kellogg, 10 Wall.
383; Seymour v. Osborn, 11 Wall. 546;
Robinson v. U. S. 13 Wall. 363;
Moran v. Prather, 23 Wall. 499;
Farmer's Bk. v. Day, 13 Vt. 36; Dana
V. Fiedler, 2 Kern. 40; CoUender v.
Dinsmore, 55 N. Y. 206.
' Stephen's Ev. art. 91, citing Smith
V. Wilson, 3 B. & Ad. 728 ; Gorrison
V. Perrin, 2 C. B. (N. S.) 681 ; Blackett
V. Royal Exch. 2 C. & J. 244; and see,
as to customary terms, supra, § 937.
CHAP. XII.J DOCUMENTS MODIFIED BY PAROL.
[§ 9T4.
the writing.^ Thus, as we shall see hereafter, when the purchase
money is paid by A., and the title made out to B., B. may be
decreed to be trustee. for A.^ In such case, to rebut this equity,
it is, from the nature of things, admissible for B. to show that he
is, to a greater or less\amount, the creditor of A.^ So, where by
two distinct codicils, two legacies, of the same amount and in
substantially the same terms, are left to the same person, such
legacies, being contrary to the general rule,* presumed not to have
been intended as cumulative, on the ground that the sums and the
expressed terms of both exactly correspond ; ^ in such case parol
evidence is received to rebut the presumption of mistake, and to
show that the testator intended both legacies to take effect.^
§ 974. In the same way parol evidence is received to rebut the
presumption that a debt due a legatee is extinguished by a leg-
acy of a greater or less amount.' Parol evidence has been also
received to rebut the presumption, that an advance to a leg-
atee by a parent, or person in loco parentis,^ was intended to
operate as an ademption, though only pro tanto? of the legacy.^"
For the same purpose, parol evidence may be received to repel
1 See Hurst v. Beach, 5 Madd. 351 ;
Trimmer «. Bayne, 7 Ves. 518.
" Infra, §§ 1035-8.
- Hall V. Hill, 1 Dru. & War. 114 ;
Williams v. Williams, 32 Beav. 3 70;
Livermore v. Aldrich, 5 Cush. 431 ;
Horn V. Keteltas, 46 N. Y. 609 ; Mc-
Ginity v. McGinity, 63 Penn. St. 44.
* See Russell v. Dickson, 4 H. of
L. Gas. 293 ; Brennan v. Moran, 6 Ir.
Eq. R. N. S. 126; Wilson «. O'Leary,
Law Rep. 12 Eq. 525, per Bacon, V.
C. ; 40 L. J. Ch. 709, S. C. ; S. C.
confirmed by lord justices, 41 L. J.
Ch. 342.
° Tatham v. Drummond, 33 L. J.
Ch. 438, per Wood, V. C. ; Tuckey v.
Henderson, 33 Beav. 174.
« Hurst J). Beach, 5 Madd. 351, 359,
360, per Leach, V. C. ; recognized in
Hall V. Hill, 1 Dru. & War. 116, 127,
by Sugden, C.
' Wallace v. Pomfret, 11 Ves. 547 ;
Edmonds v. Low, 3 Kay & J. 318.
' Taylor's Ev. § 1110, citing Ben-
ham V. Newell, 24 L. J. Ch. 424, per
Romilly, M. R. ; S. C, nom. Palmer
V. Newall, 20 Beav. 32; 8 DeGex, M.
& G. 74, S. C. ; Campbell v. Camp-
bell, 35 L. J. Ch. 241, per Wood, V.
C. ; 1 Law Rep. Eq. 383, S. C.
» Pym u. Lookyer, 5 Myl. & Cr. 29,
per Ld. Cottenham; recognized in
Suisse V. Lowther, 2 Hare, 434, per
Wigram, V. C. See Montefiore v.
Guedalla, 29 L. J. Ch. 65; 1 De Gex,
F. & J. 93, S. C; Ravenscroft v.
Jones, 33 L. J. Ch. 482; 32 Beav.
669, S. C; Watson v. Watson, 33
Beav. 574.
" Trimmer v. Bayne, 7 Ves. 515,
per Ld. Eldon ; Hall v. Hill, 1 Dru.
& War. 120 ; Kirk v. Eddowes, 3
Hare, 517, per Wigram V. C. ; Hop-
wood V. Hopwood, 26 L. J. Ch. 292 ;
22 Beav. 488, S. C. ; 29 L. J. Ch. 747,
5. C. in Dom. Proc. ; 7 H. of L. Cas.
728, S. C; Schofiield v. Heap, 28
L. J. Ch.
215
§ 975.]
THE LAW OF EVroENCE.
[book n.
the presumption against double portions, which English courts of
equity raise, when a father makes a provision for his daughter
by settlement on her marriage, and afterw'ards provides for her
by his will.i It follows, also, that parol evidence is received to
rebut the rebuttal,^ though, when the presumption is one arising
on the face of the writing, not primarily to fortify such presump-
tion.^ It should also be remembered that wherever there is an
equitable presumption donee in contrarium prohetur, extrinsic
evidence is admissible to rebut the presumption ; but when the
presumption arises from the construction of the words of an
instrument, qud words, no extrinsic evidence can be admitted.*
§ 975. Another exception to the rule arises from the necessities
Opinion of of the case in actions for libel. In such an action, how
™*to Ubel ^^® *^^ innuendos to be proved ? All the common ac-
Bdmissibie. quaintances of the parties may know that the plaintiff
» Weall V. Rice, 2 Russ. & Myl.
251, 267 ; Ld. Glengall w. Barnard, 1
Keen, 769, 793 ; Hall v. Hill, 1 Dru.
& War. 128-131, per Sugden, C, ex-
plaining and limiting the two former
cases ; Nevin v. Drysdale, Law Rep.
4 Eq. 517, per Wood, V. C. ; Dawson
V. Dawson, Law Rep. 4 Eq. 504, per
Wood, V. C. 8ee Taylor's Ev. §
1110.
" Kirk V. Eddowes, 3 Hare, 517 ;
Hall V. Hill, 1 Dru. & War. 121.
' See cases cited, and Taylor's Ev.
§ 1112, where the author says : —
" The important case of Hall v.
Hill, 1 Dru. & War. 94, affords a good
illustration of this distinction. There
a father, upon the marriage of his
daughter, had given a bond to the
husband to secure the payment of
£800 ; part to be paid during his life
and the residue at his decease, He
subsequently by his will bequeathed
to his daughter a legacy of £800 ;
and the question was, whether this
legacy could be considered as a sat-
isfaction of the debt. Parol evidence
of the testator's declaration was ten-
dered to show that such was his
real intention, and Lord Chancellor
216
Sugden acknowledged that the evi-
dence, if admissible, was conclusive on
the subject. 1 Dru. & War. 112.
His lordship, however, finally decided
that though the debt was to be re-
garded in the light of a portion ; Ibid.
108, 109 ; yet as it was due to the
daughter's husband, while the legacy
was left to the daughter herself, the
ordinary presumption against double
portions was rebutted by the langus^
of the instruments, or, rather, it could
not, under the circumstances, be raised
by the court ; and the consequence
was that the declarations were rejected.
Indeed, the evidence would have been
equally inadmissible in the first in-
stance, on the ground of its inutility,
had the ordinary presumption arisen |
though, in such case, had the oppo-
nent offered parol evidence to show
that, the testator intended that the
debt should not be satisfied by the
legacy, the evidence rejected might
then have been received with over-
whelming effect, to corroborate and
establish the presumption of law.
* Per Wood, V. C, Barrs v. Fewkes,
33 L. J. Ch. 522; 2 H. & M. 60, cit-
ing Coote V. Boyd, 2 Bro. C. C. 321;
CHAP. XII.] DOCUMENTS MODIFIED BY PAROL. [§ 976.
is the person to whom the libel refers. Yet, if parol evidence is
here inadmissible to explain, no proof of the innuendo could be
obtained. Hence, under such circumstances, it is held admissi-
ble for the plaintiff, in a libel suit, in cases where his name is
not mentioned, to introduce witnesses to testify that they knew
the parties, and were familiar with the relations existing between
them, and that on reading the libel they understood the plaintiff
to be the person to whom it referred ; ground being first laid by
proving the circumstances of the case.^
§ 976. Much discussion has been had as to the binding effect of
a date upon the writer of a document in which such Dates not
date is stated. If, for instance, in a dispositive docu- part'of"^
ment, a date is given as that of the dispositive act, it contract,
is open to question how far such date is part of the essence of
the disposition. Such date, it is argued, is not part of the dis-
position, so that it binds contractually the writer, but is simply
evidence that the act of disposition took place on a particular
day. It may be that time is an essential condition of the
validity of the document ; it may be that the rights of third par-
ties may be affected by the question of the accuracy of the date.^
The French Code, in view of the dangers that would accrue if
the rights of third parties were affecteid by dates so entered, pro-
vides, that an instrument making a disposition of property is, as
to third parties, to be considered as taking effect at the time of
its registry, or, in cases of non-registry, of its attestation before
the proper functionary.^ And where statutory provisions of this
kind do not exist, the Roman common law provides, that where
cf. Weal V. Rea, 2 Russ. & M. 267; Livingston, 2 Rich. (S. C.) 573; Rus-
Powell's Evidence, 4th ed. 406. sell v. Kelly, 44 Cal. 641. See, con-
1 Supra, §32; Folkhardon Slander, ira, White v. Sayward, 33 Me. 322;
445;2StarkieonSlander,51; 2Green- Snell u. Snow, 13 Mete. 278; Van
leaf's Ev. § 417; Daines v. Hartley, Vechten v. Hopkins, 5 Johns. 211;
3 Ex. 209; Martin v. Loci, 2 F. & F. and see Du Bost v. Beresford, 2
654; Heming v. Power, 10 M. & W. Camp. 511, cited fully supra, § 253.
569; Barnett v. Allen, 3 H. & N. 376- '' Undoubtedly a party himself, and
9; Homer u. Taunton, 5 H. & N. 661; those claiming under him, may be
Smart v. Blanchard, 42 N. H. 137; bound by a solemn assertion of a date.
Miller v. Butler, 6 Cush. 71 ; Chenery But it is otherwise as to third par-
V. Goodrich, 98 Mass. 224; Mix v. ties, whose rights are thereby compro-
Woodward, 12 Conn. 262; Lindley mised ; e. jr. subsequent Jona^rfe pur-
V. Horton, 27 Conn. 58 ; McLoughlin chasers.
V. Russell, 17 Ohio, 475 ; Morgan v. " Code Civil, art. 1328.
217
§ 977.]
THE LAW OF EVIDENCE.
[book II,
the date of a document is material in determining the rights
of third parties, such date must be independently proved by the
party setting up the document.^
§ 977. In our own law, dates zx& primd facie presumed to give
correctly the time of the execution and delivery of the
Dates to be •' i ■ i i it i i o ii i i .
held prima documents to which they are attached,'' though this
faae rue. pj-gg^^jp^j^Qn ^Qgg not extend to third parties.^ The
presumption may be rebutted by proof that the document was
executed on a different day.* Thus parol evidence is admissi-
ble to show that there was a mistake in the date of a charter
party ,^ of a deed,^ or of a will.'' An ambiguous date may be ex-
* See Weiske, Rechtslexicon, xi.
665.
In Louisiana, an act sous seing prive
has no date, against third parties, ex-
cept to prove the time when it is pro-
duced; unless the real date is shown
hy extrinsic evidence. Murray v.
Gibson, 2 La. An. 311; Corcoran v.
Sheriff, 19 La An. 139. See McGill
V. McGill, 4 La. An. 262 ; Hubnall v.
Watt, 11 La. An. 57.
2 Smith V. Battens, 1 Moo. & R.
341 ; Anderson v. Weston, 6 Bing. N.
C. 296 ; Sinclair v. Baggaley, 4 M.
& W. 312 ; Yorke v. Brown, 10 M. &
W. 78 ; Morgan v. Whitmore, 6 Ex.
716 ; Malpas v. Clements, 19 L. J.
Q. B. 435; Merrill v. Dawson, 11
How. 375 ; Smith v. Porter, 10 Gray,
66 ; Costigan v. Gould, 5 Denio, 290;
Breck v. Cole, 4 Sandf. (N. Y.) 79;
People V. Snyder, 41 N. Y. 397 ; Liv-
ingston V. Arnoux, 56 N. Y. 518 ;
Ellsworth V. R. R. 34 N. J. L. 93 ;
Claridge v. Klett, 15 Penn. St. 255;
Glenn v. Grover, 3 Md. 212; Williams
V. Woods, 16 Md. 220; Abrams «. Pom-
eroy, 13 111. 133; Savery v. Browning,
18 Iowa, 246 ; Chickei-ing v. Failes,
26 111. 507; Dodge v. Hopkins, 14
Wise. 630.
As to impossible date, see Davis v.
Loftin, 6 Tex. 489.
» See Sams v. Rand, 3 C. B. (N.
218
S.) 442 ; Baker v. Blackburn, 5 Ala.
417. Infra, § 1312.
* Steele v. Mart, 4 B. & C. 273;
Butler I'. Mountgarrett, 7 H. of L.
Cas. 633 ; Anderson v. Weston, 6
Bing. (N. C.) 296; Sinclair v. Bagga-
ley, 4 M. & W. 312 ; Cooper v. Rob-
inson, 10 M. & W. 694 ; Edwards v.
Crook, 4 Esp. 39 ; Sweetzer v. Low-
ell, 33 Me. 446; Cady u. Eggleston,
11 Mass. 282 ; Dyer v. Rich, 1 Mete.
180 ; Clark v. Houghton, 12 Gray, 38;
Goddard v. Sawyer, 9 Allen, 78; Dra-
per u. Snow, 20 N. Y. 331 ; Breck v.
Cole, 4 Sandf. 79 ; Ellsworth v. R. B.
34 N. J. L. 93 ; Abrams u. Pomeroy,
13 111. 133; Meldrum v. Clark, 1 Mor-
ris, 130; Pressly v. Hunter, 1 Speers,
133; Dodge v. Hopkins, 14 Wise.
630; Stockham v. Stockham, 32 Md.
196 ; Perrin t'. Broadwell, 3 Dana
(Ky.), 696; Kimbro v. Hamilton, 2
Swan, 190; McCrary v. Caskey, 27
Ga. 54; Miller v. Hampton, Ala. Sel.
Cas. 357 ; McComb v. Gilkey, 29 Miss.
146 ; Richardson u. Ellett, 10 Tex.
190; Perry v. Smith, 34 Tex. 277.
See Clark v. Akers, 16 Kans. 166.
Infra, § 1312.
^ Hall V. Cazenove, 4 East, 476.
" Payne «. Hughes, 10 Ex. 430.
» Reffell V. Reffell, L. J. 35 P. &
M. 121; L. R. 1 P. & D. 139; Pow-
ell's Evidence (4th ed.), 412.
CHAP. XII.] DOCUMENTS MODIFIED BY PAROL.
[§ 978.
plained by parol.^ Where a contract is silent as to the place
of payment, the burden is on the party who seeks to show that
the place of payment is other than that which the date of the
instrument indicated.^ A deed may be proved to have been
delivered either before or after the day on which it purports to
have been delivered.^ The fact that a deed is recorded at a date
prior to the alleged date of its acknowledgment will be imputed
to clerical mistake, and will be no ground for rejecting or dis-
crediting the instrument.*
§ 978. To the rule that dates are to be assumed to be correct,
there is an exception to be noticed. Where there is _
^ , _ . Exception
a valid ground to suppose collusion in the dating of a to tiie rule
that dates
paper, then the inference of accuracy as to date so far a-re primd
yields to the inference of falsification as to require the
date to be substantively proved.^ In cases of adultery, also, when
there is suspicion of collusion, and where the case depends upon
the truthfulness of the dates of certain letters, these dates must
be shown independently.®
^ ' ' When it is necessary to deter-
mine the date of a paper offered in
evidence, and the name of the month
is so inartificially written that upon
inspection the presiding judge is una-
ble to determine whether it should be
read June or January, extraneous evi-
dence is admissible to show the true
date, and the question is a proper one
to be submitted to the jury. So held
in Armstrongs. Burrows, 6 "Watts, 266.
" The same word was in dispute in
that case as in this, whether the name
of the month in the date of a paper
should read June or January ; and the
court held that the question was for
the jury, and not the court.
" This is so upon principle as well
as authority. To the court belongs
the duty of declaring the law, but it is
the province of the jury to weigh evi-
dence and determine facts. Whether
certain characters were intended to
represent one word or another is not
a question of law, it is a question of
fact ; and, when the fact is in dispute,
and to ascertain the truth it is neces-
sary to resort to extraneous evidence
(circumstantial and conflicting it may
be), its ascertainment would seem,
upon principle, to belong to the jury,
and not to the court.
" It is undoubtedly the duty of the
court to interpret written contracts.
But reading and interpreting are very
different matters. A blind man may
interpret but he cannot read. The
lancruage must be ascertained before
the work of interpretation commences.
It does not follow that, because it is
the duty of the judge to interpret, it
is therefore his duty to read the paper
in controversy." Walton, J., Fender-
son w. Owen, 54 Maine, 374. See, also,
Hearne v. Chadbourne, 65 Me. 202.
2 King V. Ruckman, 20 N. J. Eq. 316.
' Goddard's case, 2 Rep. 4 6.
* Munroe v. Eastman, 31 Mich. 283.
6 Anderson v. Weston, 6 Bing. (N.
C.) 301 ; Sinclair v. Baggaley, 4 M. &
W. 318.
^ Trelawney v. Coleman, 2 Stark.
219
§ 980.] THE LAW OF EVIDENCE. [BOOK D.
§ 979. The time of execution may be inferred from the cir-
„ cumstances of the case. Thus an indorsement or as-
Time may
be inter- signment is inferred to be of the same date as that of
circum- the instrument indorsed or assigned, -^ if, in case of a
stances. jjof-e^ this be before maturity.^ The post-mark on a
letter, also, has been viewed as primd facie proof of its date of
mailing and forwarding ; ^ and the date of the cancellation of a
revenue stamp will be presumed, as an inference of fact, to be
that of the delivery of a deed.^ The date, also, of an instrument
may be inferred from its contents ; * and where two deeds are
executed on the same day, that which the parties intended to be
prior will be adjudged such.^ Whether an indorsement of pay-
ment of interest is to be presumed to be of the date it bears, is
elsewhere discussed.^
n. SPECIAL RULES AS TO EECOKDS, STATUTES, AND CHARTERS.
§ 980. Judicial records, in their various forms, are, as is else-
Eecords where seen, proof of the highest order. They are framed
cannot be under the general direction of courts, by officers skilled
varied bv . ° ^ e ^\ i
parol; and in the work ; they follow settled precedents, being
utes and mostly composed of words to which definite meanings
c arters. jjayg been long attached ; they are usually, in litigated
cases, scanned by intelligent and experienced counsel ; if they
can be upset by parol, no titles could be safe. Hence, such
averments cannot be collaterally impeached by parol.^
R. 193 ; Houliston v. Smyth, 2 C. & ley v. Todhunter, 7 C. & P. 688; New
P. 24. Haven Bank v. Mitchell, 15 Conn.
» Hutchinson v. Moody, 18 Me. 393 ; 206 ; Callan t>. Gaylord, 3 Watts, 321.
Parker v. Tuttle, 41 Me. 349; Burn- See infra, § 1325.
ham V. Wood, 8 N. H. 334; Balch v. » Van Rensselaer v. Vickery, 3 Lan-
Onion, 4 Cush. 559 ; Noxon u. De sing, 57.
Wolf, 10 Gray, 343; Pinkerton v. * Cleavinger d. Reimar, 3 Watts & S.
Bailey, 8 Wend. 600 ; Thome v. 486.
WoodhuU, Anth. (N. Y.) 103; Sny- « Barker u. Keete, 1 Freem. 251.
der V. Riley, 6 Penn. St. 164; McDow- « Supra, § 228 ; intra, § 1100 et seq.
ell V. Goldsmith, 6 Md. 319; Snyder ' Infra, § 982; 1 Co. Litt. 260 a;
V. Oatman, 16 Ind. 265 ; Hayward v. Glynn ». Thorpe, 1 Barn. & A. 153;
Munger, 14 Iowa, 516; Stewart u. Dickson w. Fisher, 1 W. Black. 364;
Smith, 28 111.377; Hatch B. Gilmore, Garrick v. Williams, 3 Taunt. 544;
3 La. An. 508; Rhode v. Alley, 27 Galpin w. Page, 18 Wall. 365; The
Tex. 443. Infra, § 1312. Acorn, 2 Abbott (U. S.) 434 ; San-
» R. V. Johnson, 7 East, 68; Ship- ger v. Upton, 91 U. S. (1 Otto) 66;
220
CHAP, xn.]
RECORDS MODIFIED BY PAROL.
[§ 980 a.
§ 980 a. In the interpretation of a statute the whole context
Boody V. York, 8 Greenl. 272 ; Ellis
V. Madison, 13 Me. 312; DoUofE v.
Hartwell, 38 Me. 54 ; Eastman v. Wa-
terman, 26 Vt. 494 ; Hunneman v. Fire
District, 37 Vt. 40; Hall v. Gardner,
1 Mass. 171; Legg v. Legg, 8 Mass.
99; Wellington v. Gale, 13 Mass. 483;
Kelley v. Ih'esser, 11 Allen, 31; May-
hew ti. Gay Head, 13 Allen, 129; Com.
V. Slocum, 14 Gray, 396 ; Capen v.
Stoughton, 16 Gray, 364; Richardson
V. Hazleton, 101 Mass. 108; Whiting v.
Whiting, 114 Mass. 494; Brintnall v.
Foster, 7 Wend. 103; Davis v. Tal-
cott, 12 N. Y. 184; Hill v. Burke, 62
N. Y. Ill; Brown v. Balde, 3 Lans.
283; Wallace v. Coil, 24 N. J. L. 600;
Kennedy v. Wachsmuth, 12 S. & B.
171; Hoffman v. Coster, 2 Whart. K.
468; Withers v. Livezey, 1 W. & S.
433 ; Coffman v. Hampton, 2 Watts &
S. 377 ; McClenahan v. Humes, 25'
Penn. St. 85 ; McMicken v. Com. 58
Penn. St. 213; Coxe v. Deringer, 78
Penn. St. 271 ; Ray v. Townsend, 78
Penn. St. 329 ; Com. v. Kreager, 78
Penn. St. 477; Burgess v. Lloyd, 7
Md. 178; Hoagland v. Schnorr, 17
Oh. St. 30 ; State v. Clemens, 9 Iowa,
634; Ney v. R. R. 20 Iowa, 347;
Schirmer v. People, 33 111. 276; Hob-
son V. Ewan, 62 111. 154; Moffitt i'.
Moffitt, 69 111. 641; Rice v. Brown, 77
111. 549; Robinson v. Ferguson, 78 111.
638; Long v. Weaver, 7 Jones L. 626;
Lamothe v. Lippott, 40 Mo. 142; Mo-
Farlane v. Randle, 41 Miss. 411 ; Tay-
lor V. Jones, 3 I^a. An. 619; Edwards
V. Edwards, 25 La. An. 200 ; Thomp-
son V. Probert, 2 Bush, 144; Hicker-
son V. Blanton, 2 Heisk. 160 ; May v.
Jameson, 11 Ark. 368; Wilson v. Wil-
son, 45 Cal. 399. So, also, as to rec-
ords of towns and school districts.
Eady 1). Wilson, 43 Vt. 362.
In a late Massachusetts case, for
instance, the evidence was that real
estate which had been fraudulently
conveyed, was attached in an action
against the grantor under the Gen.
Sts. c. 123, § 55, and taken on execu-
tion, and was described in the officer's
return, which set out that the notice
of the sale was of land situated upon
Union Street. It was ruled by the
supreme court, that evidence that in
the published notice of sale the premi-
ses were described as situated on Avon
Street was not competent to contra-
dict the return. Sykes v. Keating, 118
Mass. 517.
" The tenant offered to show that
there was an error in the notice of the
sale under the execution, as printed
in the newspaper, the premises being
described as situated on Avon Street
instead of Union Street. But we are
of the opinion that this evidence was
incompetent. The officer's return sets
out that the notice of the sale was of
land situated on Union Street, and it
is conclusive upon parties and all per-
sons in privity with them. It has uni-
formly been held that the officer's re-
turn of the acts done by him in the
levy of an execution are thus conclu-
sive. In Chappell v. Hunt, 8 Gray,
427, the officer returned that one of
the appraisers was chosen by ' Ches-
ter Cornwall, the attorney of the debt-
or,' and it was held that it could not
be shown that said Cornwall was not
the attorney of the debtor, and had no
authority to act for him. In Campbell
V. Webster, 15 Gray, 28, it was held
that the officer's return was conclusive
evidence as to the competency of the
appraisers, and could not be impeached
by showing that one of them was not
disinterested. The same principle was
recognized in Dooley v. Wolcott, 4
Allen, 406, and Hannum v. Tourtel-
lott, 10 Allen, 494. The case of Whit-
aker v. Sumner, 7 Pick. 551, more
221
§ 980 ff.J
THE LAW OF EVIDENCE.
[book n.
must be taken together.^ Even the title and preamble are for
closely resembles the case at bar. In
that case the notice of the sale pub-
lished in the newspaper did not in fact
specify any place of sale, but the offi-
cer's return stated that he had adver-
tised the place of sale. It was held
that the return was conclusive,- that
the equity of redemption passed by the
sale, and that the plaintiff, who was a
subsequent attaching creditor, could
maintain an action against the officer
for a false return. The case of Wol-
cott V. Ely, 2 Allen, 338, is not in con-
ffict with these adjudications. That
case was submitted upon an agreed
statement of facts, in which the par-
ties agreed that one of the appraisers
was not disinterested. The court, in
the opinion, say : ' It was held in Bos-
ton V. Tileston, 11 Mass. 468, that
where the parties in an agreed state-
ment of facts agree to a fact decisive
of the title, the officer's return,, which
would have been conclusive evidence
upon a trial between them, is not to
be regarded.' This is not in conflict
with, but clearly recognizes, the gen-
eral rule that, in a trial between par-
ties, the officer's return, when used in
evidence, is conclusive." Morton, J.,
Sykes v. Keating, 118 Mass. 519.
This rule is applied in Pennsylvania
to proceedings by aldermen under the
Landlord and Tenant Act. Wistar v.
Ollis, 77 Penn. St. 291.
In this case, Mercur, J., said: " To
establish fraud or want of jurisdiction,
the court might have heard facts by
depositions ; but not to show an irreg-
ularity which contradicted the record.
When heard by the court below, they
do not come regularly before this courti
and should be disregarded. Boggs u.
Black, 1 Binney, 336; Blashford v.
Duncan, 3 S. & R. 480; Cunningham
V. Gardner, 4W. & S. 120; McMillan
V. Graham, 4 Barr, 140 ; Union Canal
V. Keiser, 7 Harris, 134; Bedford v.
Kelly, 11 Smith, 491 ; Buchanan ti.
Baxter, 17 Smith, 848.
" It is not designed to deny the cor-
rectness of the ruling in McMasters ».
Carothers, 1 Barr, 324, and in Ayres
V. Novinger, 8 Barr, 412, in which it
was held that the selection of a jury of
inquest was so far a judicial act im-
posed on the sheriff that it could not
be delegated to another, but they are
distinguishable from the present case.
The former was a case of partition in
the orphans' court, in which an in-
quest had been awarded. The case
is badly reported, but it appears the
jurors were summoned by a constable
from a list furnished by one whose au-
thority is not shown. In setting aside
the inquisition this court said there
was a gross irregularity in the parti-
tion, and the case presented 'a bundle
of irregularities.' In the latter case,
the record showed that the sheriff had
deputed one juror to execute the writ,
and the depositions showed that this
special deputation was made at the
request of the landlord's attorney.
" There is, however, another rear
son why the defendants should not be
permitted now to allege an irregularity
in the summoning of a part of the ju-
rors. Having been personally served,
and attended at the hearing; having
gone to trial on the merits, they should
1 De Winton v. Brecon, 26 Beav. Taylor, 13 Oh. N. S. 382; Cantwell
633; Com. «. Alger, 7 Gush, 53; State v. Owens, 14 Md. 215; District «.
i>. Commis. 37 N. J. 228 ; Com. v. Dubuque, 5 Clarke, 262 ; Brooks v.
Duane, 1 Binn. 601; Com. v. Mont- Mobile, 31 Ala. 227; Ellison «. K. R-
roe, 62 Penn. St. 391; Cochran v. 36 Miss. 672; Lieber, Pol. Her. ch. v.
222
CHAP. XII.] STATUTES MODIFIED BY PAROL. [§ 980 a.
this purpose to be taken into account.^ But the judges are per-
mitted to go outside of the statute to consider the go as to
law as it stood before the statute, and the circum- amJ^^ar-
stances of its passing, so far as shown by the records '«"•
of the legislature.^ Mr. Sedgwick, indeed, says, that " we are not
to suppose that the courts will receive evidence of extrinsic facts
as to the intention of the legislature ; that is of facts which have
taken place at the time of, or prior to, the passage of a bill." ^
But as the courts will take judicial notice of matters of noto-
riety, it will not be necessary for evidence, in its strict sense, to
be taken, to enable a survey to be made by the court of the con-
dition of things leading to a statute. Such a survey is, in fact,
inevitable, to a degree greater or less.* We have an illustration of
this in a paragraph which Mr. Sedgwick quotes from Lord Mans-
field ; where tha^ eminent judge, in construing a statute declar-
ing void all marriages of children under age, gave, as a reason
for a strict construction, that " clandestine marriages " " were be-
come very numerous ; that places were set apart in the Fleet
and other prisons for the purpose of celebrating clandestine mar-
riages. The court of chancery, on the ground of its illegality,
made it a contempt of court to marry one of its wards in this
manner. They committed the offenders to prison ; but that
mode of punishment was found ridiculous and ineffectual. Then
this act was introduced to remedy the mischief." ^ At the same
time the courts unite in refusing to push the extrinsic facts thus
to be taken notice of beyond the limits of notoriety, as hereto-
be held to have waived all errors and * Sedgwick, Stat. Law, 2d ed. 201 ;
irregularities in the selection and sum- see Lieb. Polit. Herm. ch. iv.
moning of the jurors. It is true the ' Intra, §§ 1260, 1309; and see as to
actsofassembly which hold that plead- evidence of the intention of the leg-
ing the general issue, or a trial on the islators, Waller v. Harris, 20 Wend,
merits, in any court, civil or criminal, 565.
is a waiver of all irregularities in draw- = Sedg. Stat. Law, 203; citing
ing and summoning the jurors, do not Southwark Bk. v. Com. 26 Penn. St.
in express terms apply to an inquest 446.
under the Landlord and Tenant Act; * See Hadden v. Collector, 5 Wall,
yet the whole reason and spirit of them 107; Delaplane v. Crenshaw, 15 Grat.
applies with full force. Burton v. 457; Harris u. Haynes, 30 Mich. 140;
Ehrlich, 3 Harris, 236 ; Fife et al. v. Scanlan v. Childs, 33 Wise. 663 ;
Commonwealth, 5 Casey, 429; Jewell u. Keith v. Quinney, 1 Oregon, 364.
Commonwealth, 10 Harris, 94." And ^ R. v. Hodnett, 1 T. R. 96.
see supra, §§ 824, 830, 981.
223
§ 981.]
THE LAW OF EVIDENCE.
[book n.
fore defined,^ and there is no case in which witnesses or docu-
ments have been received as evidence of extrinsic facts. In this
sense we may accept Mr. Sedgwick's conchision, " that, for the
purpose of ascertaining the intention of the legislature, no ex-
trinsic fact, prior to the passage of the bill, which is not itself a
rule of law or act of legislation, can be inquired into or in any
way taken into view." ^
A statute cannot be attacked by parol evidence to the effect
that as printed and certified it varies from its original text.^
A charter, also, as a legislative act, cannot, under the rules
above stated, be impeached collaterally by parol.* So, no evi-
dence will be admissible to show that a charter granted by the
crown was made or delivered at another time than when it bears
date.s
While, however, to return to the subject of judicial
records, a record cannot be coUate^rally impeached, ex-
cept on proof of fraud or want of jurisdiction ; it is
otherwise with deeds by sheriffs, which are not to be re-
garded as res adjudicata. It has therefore been held
that the acknowledgment of a sheriff does not cure
radical defects in the authority of the sheriff ; and these defects
may be collaterally shown, though the deed is primd facie proof
of regularity.^ So, also, it has been held admissible for a de-
§981.
Otherwise
as to ac-
knowledg-
ment of
sherifE's
deed.
1 See supra, § 278 e( seq.
" Sedgwick Stat. Law, 209. See,
also. Union P. R. R. v. U. S. 10 Ct.
of CI. 518.
' Annapolis v. Harwood, 32 Md.
471.
* Garrett v. R. R. 78 Penn. St.
465.
5 Ladford v. Gretton, Plowd. 490.
= Infra, § 1304. " It is true that the
acknowledgment by the sheriff of a
deed executed by him is not such res
adjudicata as precludes an inquiry
into the legality of the proceedings by
which the sale was made. Braddee v.
Brownfield, 2 W. & S. 271. And the
absence of authority, or the presence of
fraud, utterly frustrates the operation
of a sheriff's sale as a means of trans-
224
mission of title, and may be insisted
on after acknowledgment. Shields
i>. Miltenberger, 2 Harris, 76. While
Spragg V. Shriver, 1 Casey, 284,
might justify some doubt on the ques-
tion in the case of a sale under a ven-
ditioni expcmas, it is clear that an ac-
knowledgment will not cure the want
of a sufficient inquisition, or a waiver
of it, in the case of a sale under a
fieri facias. Gardner i'. Sisk, 4 P. F.
Smith, 606. But it waives all defects
of the process or its execution, on
which the court has power to act;
Thompson v. Phillips, 1 Baldwin,
246 ; and mere irregularities of every
kind. Blair v. Greenway, 1 Browne,
219. It is sufficient to raise the pre-
sumption, in the first instance, that
CHAP. XII.]
RECORDS MODIFIED BY PAROL.
[§ 982.
fendant in ejectment to prove, in defence, that the land in con-
troversy, though embraced in the sheriff's deed, was in fact, ex-
empted from the sale.^ But ordinarily the recitals in a sher-
iff's deed are regarded as conclusive between the parties to the
suit and their privies ; ^ though, from the nature of things, open
to correction, so far as concerns their obligatory force, by the
same proof of fraud or mistake as is receivable in respect to pri-
vate deeds.^
§ 982. In fine, it may be generally stated that a record of a
competent court imports such absolute verity that it „
cannot be collaterally contradicted, unless on proof of imjiorta
fraud or want of jurisdiction.* To an important distinc-
tion, however, which has been already stated,^ we must recur.
" The mode of proving judicial acts is a different thing from the
effect of those acts when proved ; and the rules regulating the
the statutory requisites for notice to
parties have been complied with, and
this presumption must prevail until it
is rebutted by satisfactory affirmative
proof." Woodward, J., Saint Bar-
tholomew Church V. Bishop Wood,
Sup. Ct. of Penn. 1876 ; 2 Weekly
Notes, 255. As to acknowledgment
of non-official deeds, see infra, §
1052.
> Bartlett v. Judd, 21 N. Y. 200.
^ Freeman on Executions, § 334;
Cooper V. Galbraith, 3 Wash. C. C.
550; Jackson v. Roberts, 7 Wend. ?3;
Den V. Winans, 2 Green N. J. 6 ; Pol-
lard V. Cocke, 19 Ala. 188; Blood v.
Light, 31 Cal. 115.
' See infra, § 1019 et seq.
* See infra, § 1302; 1 Coke Lift.
260, a; Glynn u. Thorpe, 1 Barn. &
A. 153; Amory v. Amory, 3 Biss. 266;
Fo3s V. Edwards, 47 Me. 145; Willard
V. Whitney, 49 Me. 235; Douglass v.
Wickwke, 19 Conn. 489; Dows v. Me-
Miohael, 6 Paige, 139; Hageman v.
Salisberry, 74 Penn. St. 280; Roy v.
Townsend, 78 Penn. St. 329; Quinn
V. Com. 20 Grat. 138; Southern Bank
V. Humphreys, 47 III. 227; McBane v.
VOL. n. 15
People, 50 111. 503; Martin v. Judd,
60 111. 78; Farley v. Budd, 14 Iowa,
289 ; Allen v. Mills, 26 Mich. 123 ;
Galloway v. McKeithen, 5 Ired. L. 12;
Covington v. Ingram, 64 N. C. 123;
Duer V. Thweatt, 39 Ga. 578; Alex-
ander V. Nelson, 42 Ala. 462; Morris
V. Hulbert, 36 Tex. 19.
" The jurisdiction being established,
no matter how erroneous the finding
of the court may be, the finding is not
void, and cannot be questioned in a
collateral proceeding. This is the
universal rule in all courts of common
law. Buckmaster v. Carlin, 3 Scam.
104; Swiggart w. Harber, 4 Ibid. 364;
Rockwell V. Jones, 21 111. 279; Chest-
nut V. Marsh, 12 Ibid. 173; Weiner v.
Heintz, 17 Ibid. 259; Horton v. Critch-
field, 18 Ibid. 133; Iverson v. Loberg, 26
111. 179; Goudy u. Hall, 36 lU. 313. The
later cases are Wimberly v. Hurst, 33
111. 166; Wight v. Wallbaum, 39 Ibid.
555 ; Elston v. City of Chicago, 40 Ibid.
514; Mulford v. Stalzenback, 46 Ibid.
303 ; Huls V. Buntin, 47 Ibid. 396."
Breese, J., Hobson v. Ewan, 62 111.
154.
6 Supra, §§ 176, 760.
225
§ 984.J THE LAW OF EVIDENCE. [BOOK D.
effect of res judicata would remain exactly as they are, if the
decisions of our tribunals could be established by oral testimony.
In truth, the record of a court of justice consists of two parts,
which may be denominated respectively the substantive and ju-
dicial portions. In the former — the substantive portion — the
court records or attests its own proceedings and acts. To this,
unerring verity is attributed by the law, which will neither allow
the record to be contradicted in these respects ; ^ nor the facts,
thus recorded or attested, to be proved in any other way than by
production of the record itself, or by copies proved to be true in
the prescribed manner :2 'Nemo potest contra recordum veri-
ficare per patriam.' ^ ' Quod per recordum probatum, non
debet esse negatum.' * In the judicial portion, on the contrary,
the court expresses its judgment or opinion on the matter before
it. This has only a conclusive effect between, and indeed in
general is only evidence against, those who are parties or privies
to the proceeding." ^
§ 983. Yet even with records, when application is made to the
Q .. court controlling the record, a correction of the record,
cation to in cases of fraud or gross mistake, may be made on the
court of ° 1 a mi 1- ■
record mis- error being proved by parol.* T he application m such
be showo" case, however, if it be merely by motion, and unless it
by parol. takes the form of bill in equity, is to the discretion of
the court, from which there is no appeal.'
§ 984. When a petition or bill, of the character mentioned in
For relief t^jQ j^st section, is presented to a court, the fraud or
on ground _ ' r '
of fraud or mistake must be specifically set forth, and such relief
petition' craved as equity will give. In a case decided by the
specific. supreme court of Pennsylvania in 1876,^ the evidence
> Co. Litt. 260 a; Finch, Law, 231 ; v. Hoyt, 4 Day, 436 ; Gardner v. Hum-
Gilb. Ev. 7,4th ed.; 4 Co. 71 a; Litt. phrey, 10 Johns. K. 53j Clammer v.
R. 155; Hetl. 107; 1 East, 355; 2 B. State, 9 Gill, 279; Jenkins v. Long,
& Ad. 362. 23lnd.460.
" See several instances collected, 1 ' Com. v. Judges of Com. Pleas,
fhill. Ev. 441, 10th ed. Binney, 275; Com. v. Judges of Com.
« 2 Inst. 880. Pleas, 1 S. & R. 192; Clymer i>.
* Branch, Max. 186. Thomas, 7 S. & R. 180; Woods v.
' Best's Ev. § 734. Young, 4 Cranch, 237 ; King v. Hopper,
« Trafton v. Rogers, 13 Me. 815 ; 3 Price Exch. Rep. 495. See §984.
Com. B. Bullard, 9 Mass. 270; Brier » Kindig's Appeal, 2 Weekly Notes
V. Woodbury, 1 Pick. 362; Olmsted of Cas. 680.
226
CHAP. Xn.] EECOEDS MODIFIED BY PAROL. [§ 984.
was that a prothonotary having omitted to index a judgment
in favor of B., afterwards interlined it in the judgment docket.
Before an auditor appointed to distribute the proceeds of a sher-
iff's sale, B., who was a subsequent judgment creditor, of-
fered to show that the interlineation had been made after the
entry of his judgment. The auditor overruled this offer, and
awarded the fund to A. Upon the petition of B., a rule was
then granted on A. to show cause why the entry on the judg-
ment docket should not be stricken off, and this rule was based
on a petition setting forth the prothonotary's error, but not aver-
ring fraud, or any act on the part of the plaintiff in consequence
of such error. It was held by the supreme court, that the petition
did not set forth ground for relief. " In such case," said the
court, " the petition must set forth substantially an equity which
gives the court chancery jurisdiction, and pray for some relief
that a court of equity can give in such a case. Now the petition
does not set forth any fraud of the defendant in procuring a falsi-
fication of the record, or any such accident or mistake as confers
equity jurisdiction on the ground of fraud, accident, or mistake.
It does not even set forth the unauthorized act of a third person.
Nor does it show, as a ground of relief, that the petitioner ex-
amined.the record before lending his money, or doing any act on
the faith of the state of the record which, by reason of its then
condition, misled him ; while its only specific prayer for relief is
not for an injunction to prevent the respondent from using it to
his prejudice, but is a prayer that the entry on the judgment
index, which he terms the interlineation of the lien, should be
stricken from the judgment docket. It is, therefore, not sub-
stantially a bill in equity to enjoin the respondent (or appellee)
from the benefit of the lien of his award, on the ground of fraud
or other head of equity ; but is really, with all its verbiage, noth-
ing more than an application to amend or correct the record of
the entry on the judgment index. The proof also fails to connect
the appellee (or respondent) with any fraud or unauthorized
falsification of the entry. In fact, it is apparent that the act was
that of the oflacer himself (the prothonotary), who called on the
ex-officer to make a correction of a matter happening within the
term of office of the latter. Being done with the consent of the
prothonotary, it was really his act. His error was in suffering
227
§ 986.] THE LAW OF EVIDENCE. [BOOK H.
the amendment of the judgment index without the authority of
the court. This was a grave misdemeanor on his part. Had the
court been applied to it would, in allowing the correction, have
made it so that the interest of a prior lien creditor would have
been protected. But, as we said in the beginning, on this point,
the court having refused the petition to strike off the entry, it
was an exercise of sound discretion from which there was no ap-
peal, and it is not our province to correct the refusal if it were a
mistake."
§ 985. In cases of fraud, as we have seen more fully else-
Franduient where,^ records may be collaterally impeached.^ In
bcTim*'"*^ this way a collusive judgment,^ or a judgment entered
peached. without jurisdiction,* may be set aside.
§ 986. Like all other written instruments, however, a record,
when silent or ambiguous, may be explained by parol.^
when silent Thus where the record gives the name of a party am-
oustma^be biguously, the ambiguity may be cleared and the party
by^paroi.^ identified by parol extrinsic proof.^ So where an ex-
ecutor sells personal property, and the record is silent
as to the statutory notice, this notice may be proved by parol.^
So, also, where an officer made a return of service of a notice that
a debtor arrested on a mesne process desired to take the oath
that he did not intend to leave the state, but the return did not
state where the service was made, except that it was headed with
the name of the county for which the officer was appointed ; and
1 Supra, § 797. Johns. E. 53; Freeman v. Creech,
2 Beckley v. Newcomb, 24 N. H. 112 Mass. 180; Kerr u. Hays, 35 N.
359 ; Lowry v. McMillan, 8 Penn. St. Y. 331 ; Shoemaker v. Ballard, 15
157 ; Jackson v. Stewart, 6 Johns. 34; Penn. St. 92; Stark ». Puller, 42 Penn.
Henck w. Todhunter, 7 Har. & J. 275; St. 23 ; Phillips v. Jamison, 14 T. B.
Kent V. Eicards, 3 Md. Chan. 892; Monr. 579; Carr v. College, 32 Ga.
Stell V. Glass, 1 Ga. 475; Dalton v. 557; Young v. Fuller, 29 Ala. 464;
Dalton, 33 Ga. 243. . Saltonstall v. Eiley, 28 Ala. 164;
» Whart. on Agency, § 566; Amory Temple v. Marshall, 11 La. An. 641 ;
V. Amory, 3 Biss. 266 ; Martin v. Judd, Hickerson v. Mexico, 58 Mo. 61.
60 111. 78, supra, § 797; Morris v. Hal- « Eooti). Fellowes, 6 Cush. 29.
bert, 36 Tex. 19; though see Davis v. ' Gelstrop v. Moore, 26 Miss. 206.
Davis, 61 Me. 395. See E. v. Wick, 5 B. & Ad. 526 ; R.
« Supra, § 795. u. Perranzabuloe, 3 Q. B. 400; B. v.
6 Infra, § 989; Parnsworth v. Eand, Yeovely, 8 A. & E. 818. A patent
65 Me. 19 ; Eastman v. Cooper, 15 ambiguity, however, cannot be so ex-
Pick. 276 ; Gardner v. Humphrey, 10 plained. Porter v. Byrne, 10 Ind. 146.
228
CHAP. XII.] RECORDS MODIFIED BY PAROL. [§ 986.
■where it appeared that the service was actually made outside of
his precinct, but this objection was waived; evidence was ad-
mitted that the service was made at a certain distance from the
place of hearing, and that there were places within the county
of such distance.^ So, on a question arising under a bill in equity,
filed January 8, 1874, to redeem a mortgage, the evidence being
that on a writ of entry to foreclose the mortgage, an execution
for possession issued dated May 6, 1869, upon a conditional judg-
ment ; that the officer's return and the acknowledgment of pos-
session were dated May 3, 1869 ; and that the execution was
recorded June 10, 1869: it was ruled in Massachusetts that
the date of the officer's return was not conclusive as to the
actual date of the possession ; and it appearing from the whole
record, without resort to other evidence, that possession was
actually taken on some day after the execution was issued and
before June 10, it was held that this was enough to commence
the foreclosure as of the later date.^ It is also competent to
show by parol that a title, on which a particular suit of eject-
ment is tried, is equitable.^ Additional facts, however, which
should be of record, cannot be added to a record by parol.*
' Francis o. Howard, 115 Mass. is well established, in reason and au-
236. That returns, when ambiguous, thority, that where a record is gen-
may be explained by parol, see, fur- eral, it may be shown by parol what
ther, Atkinson v. Cummins, 9 How. were the matters in litigation. The
U. S. 479; Guild v. Richardson, 6 record maybe explained, though it
Pick. 364; Dolan v. Briggs, 4 Binn. cannot be contradicted. The matters
499; Weidensaul u. Reynolds, 49 in dispute may be identified.' This
Penn. St. 73 ; Susq. Boom Co. v. Fin- was applied in that case to the very
ney, 58 Penn. St. 200. As to effect question now before us, the admission
of returns, see supra, § 833 a. of parol evidence to show that a for-
^ Worthy V. Warner, 119 Mass. raer recovery in ejectment was upon
550. an equitable title. The dictum of Mr.
' " The second question, whether it Justice Bell in PauU v. Oliphant, 2
was competent to prove by parol evi- Harris, 351, is not in conflict. That
deuce that the title upon which the case, as we have seen, was under the
recovery was had in the first eject- Act of 1846, which required a condi-
ment was an equitable one, has been tional verdict to give conclusive effect
expressly ruled by this court in Mey- to one verdict and judgment. Mr.
ers V. Hill, 10 Wright, 9. Mr. Jug- Justice Bell merely says : ' To ascer-
tice Strong said : ' Notwithstanding tain the character of that judgment we
what has been said in some cases, it must look to the record of it alone.
* Wilcox t). Emerson, 10 R. I. 270.
229
§ 988.]
THE LAW OF EVIDENCE.
[book II.
Town rec-
ords may
be ex-
plained by
parol.
§ 987. Parol evidence cannot, generally, be received to vary
the records of towns, in matters within the jurisdiction
of the towns, and when the entries are duly made by
the proper officers.^ In case of contradiction or am-
biguity, however, parol evidence is admissible for ex-
planation.2
§ 988. Of the admissibility of parol proof to explain a record,
the most familiar illustration is that which is supplied when the
identity or non-identity of one case with another is set up, in
order to sustain or disprove a plea of former recovery. It may
happen that a judgment has been entered in a former suit
(either civil or criminal), in which the record entries would fit
the case on trial, but as to which it is alleged that parol evidence
would show that the points really in issue are essentially dif-
ferent. Or it may be that the record of the former suit
exhibits a case different from that on trial, while it is
alleged that in point of fact the former case and the
present are substantially the same. In either of these
relations it is admissible to show by parol what was the
cause of action in the former >suit, so that its identity
or non-identity with that on trial may be proved.^ The same
Former
judgment
may be
shown by
parol to re-
late to a
particular
That shows not that it is such a con-
ditional judgment as is contemplated
by the statute, and the omission can-
not be aided by parol.' " Sharswood,
J., Treftz V. Pitts, 74 Penn. State,
849.
While no evidence will be received
to dispute the fact that the day speci-
fied in a, record of conviction is the
commission day of the assizes at which
the trial took place (see Thomas v.
Ansley, 6 Esp. 80; R. v. Page, Ibid.
83) , yet the party against whom the
record is produced is permitted to
show by parol the actual day of the
trial. Whitaker w. Wisbey, 12 Com.
B. 44; Roe v. Hersey, 3 Wils. 274.
Proof of the real day of trial would
not, so it is said, in such a case,
contradict the record, but would sim-
ply explain it. So, again, if a nisi
prixis record were to contain two
230
counts, or distinct causes of action,
and a verdict awarding damages to
the plaintiff were entered generally,
parol evidence would be admissible to
show that the substantial damages
were recovered on one count only.
Preston v. Peeke, 1 E., B. & E. 336.
^ Crommett v. Pearson, IS Me. 344;
Blaisdell v. Briggs, 23 Me. 123; Hew-
lett V. Holland, 6 Gray, 418; Wood b.
Mansell, 3 Blackf. 125.
^ Walter v. Belding, 24 .Vt. 658.
« See supra, §§ 64, 785; R. v. Bird,
2 Den. C. C. 94; 5 Cox C. C. 20;
Miles V. Caldwell, 2 Wall. 35 ; Frost
V. Shapleigh, 7 Greenl. 23fi; Mathews
w. Bowman, 25 Me. 157; Dunlap v.
Glidden, 34 Me. 517; Torrey «. Ber-
ry, 86 Me. 589 ; Lando v. Ai-no, 65
Me. 405 ; Perkins v. Walker, 19
Vt. 144; Bassett v. Mai-shall, 9
Mass. 812; Parker v. Thompson, 3
CHAP. XII.]
EECORDS MODIFIED BY PAROL.
[§ 988.
rule applies when the object is to prove that a former judg-
ment was entered not on the merits but on technical grounds.^
Evidence is also admissible to show the distinctive issue on
which a case is tried, when the record is silent in this respect.^
Pick. 429; Pease v. Smith, 24 Pick.
122; Com. v. Dillane, 11 Gray, 67;
Com. V. Sutlierland, 109 Mass. 342;
Hood V. Hood, 110 Mass. 483 ; Boyn-
ton V. Morrill, 111 Mass. 4; Hunger-
ford's Appeal, 41 Conn. 322; Sted-
man v. Patchin, 34 Barb. 218; Thurst
V. West, 31 N. Y. 210; Burt v. Stern-
burgh, 4 Cow. 559; Davisson v. Gard-
ner, 10 N. J. L. 289; Zeigler v. Zeig-
ler, 2 S. & R. 286; Sterner v. Gower,
3 Watts & S. 136; Butler v. Slam,
60 Penn. St. 456; McDermott v. Hoff-
man, 70 Penn. St. 31 ; Follansbee v.
Walker, 74 Penn. St. 309; Federal
Hill Co. V. Mariner, 15 Md. 224;
Hughes V. Jones, 2 Md. Ch. 178;
Whitehurst u. Rogers, 38 Md. 503;
Streeks v. Dyer, 39 Md. 424; Bar-
ger V. Hobbs, 67 111. 592; Porter v.
State, 17 Ind. 415; Wabash Canal v.
Reinhart, 24 Ind. 122; Hollenbeck «.
Stanberry, 38 Iowa, 325; Duncan t>.
Com. 6 Dana, 295; Justice v. Justice,
3 Ired. L. 58 ; Dowling v. Hodge, 2
McMul. 209 ; State v. De Witt, 2 Hill,
S. C. 282 ; Cave v. Burns, 6 Ala.
780; Rake v. Pope, 7 Ala. 161 ; State
V. Matthews, 9 Port. 370 ; Robinson
V. Lane, 22 Miss. 161 ; Shirley v.
Fearne, 33 Miss. 653 ; State v. Scott,
31 Mo. 121 ; State v. Thornton, 37
Mo. 360; Hickerson v. Mexico, 58
Mo. 61; Hampton v. Dean, 4 Tex.
455; Walsh v. Harris, 10 Cal. 391;
Jolley !). Foltz, 34 Cal. 321.
* " It would be very uni>easonable and
contrary to the settled rules upon the
subject, to permit the plaintiff having
once been defeated on the merits to
try the same question over again in a
different form. Calhoun's Lessee v.
Dunning, 4 Dall. 120; Marsh v. Pier,
4 Rawle, 273; Chambers v. Lapsley,
7 Barr, 24.
" The charge of the judge as filed
of record in the first case showed con-
clusively that both the questions re-
ferred to in the offer were submitted
to the jury. In Carniony v. Hoober,
5 Barr, 305, the charge of the judge
so filed of record was considered as
sufficient to establish on what point a
former recovery had passed. Nothing
seems better settled than that the evi-
dence thus offered was competent. It
did not contradict the record, but was
entirely consistent with it. On the
general issue under the pleas of non
assumpserunt, the defendant could
have defeated the plaintiff by showing
that the contract was not made with
him, but with a firm of Follansbee &
Walker. Non-joinder of plaintiffs in
an action ex contractu may be taken
advantage of under the general issue.
1 Chitty's Pleadings, 13. Whenever
it does not contradict the record, parol
evidence may be given to show that
a former recovery was had, not upon
the merits, but upon some technical
objection to the form of action or oth-
erwise. The cases upon this subject
are too numerous to cite; it will be
sufficient to refer to some of our own
decisions: Zeigler u. Zeigler, 2 S. &
R. 286; Haak v. Breidenbach, 3 Ibid.
204; Wilson v. Wilson, 9 Ibid. 424;
Cist V. Zeigler, 16 Ibid. 282 ; Leonard
U.Leonard, 1 W. & S. 342; Fleming
V. The Insurance Co. 2 Jones, 391;
Carmony o. Hoober, 5 Barr, 305;
Coleman's Appeal, 12 P. F. Smith,
252." Sharswood, J., Follansbee v.
Walker, 74 Penn. St. 309.
2 Supra, § 785; Preston v. Peeke,
231
990.]
THE LAW OF EVIDENCE.
[book II.
§ 989. For other purposes than the support or attack of a plea
In other °^ former recovery, it is admissible to prove the cause
cases cause of action of a particular record.^ Thus in a Massachu-
01 action '■ -t 1 Tt ^ n
may be setts case, where it appeared that ir. agreed to pay S.
'""^^ ' any sum not exceeding $1,500, which S. should be le-
gally compelled to pay C. on a certain account, and C. recovered
in New Hampshire in a suit against S. a larger, sum than $1,500,
it was held that the cause of action in the latter suit might be
identified by parol.^
§ 990. The averment of the day of entering a judgment can-
not be collaterally contradicted by parol ; and it has
even been held that a judgment entered on a particular
day will be imputed to the earliest practicable hour of
that day.^ Yet the better opinion is that parol evi-
dence is admissible as to the hour of entry, when it is important
that this should be ascertained ; for this is a point as to which
Hour of
legal pro-
cedure
may be
proved by
parol.
1 E., B. & E. 336 ; Hickerson v. Mex-
ico, 58 Mo. 61.
" Where it appears several issues
were presented for adjudication under
the declaration and pleadings of the
case, and the record fails to show upon
which in fact the judgment was ren-
dered, it is competent, in some cases,
to show the fact hy evidence aliunde.
Dunlap V. Glidden, 34 Maine, 517;
Rogers v. Libbey, 35 Maine, 200 ;
Emery v. Fowler, 39 Maine, 826;
Cunningham v. Foster, 49 Maine, 68.
" So where a particular fact in con-
troversy has been, by the same parties,
under an issue legitimately raised by
the pleadings, litigated, parol evidence
is admissible to prove the consider-
ation and determination of that fact,
if the record fails to disclose it. Such
evidence is admitted in aid of the rec-
ord, and must always be consistent
with it. Chase v. Walker, 53 Maine,
258.
" It is never allowed to contradict or
vary the record. Gay v. Welles, 7 Pick.
217; NcNear v. Bailey, 18 Me. 251;
Sturtevant v. Randall, 53 Me. 149.
232
" The evidence must be confined to
the proof of such facts and issues as
were, or might have been legitimately
decided under the declaration and
pleadings. If otherwise, it might con-
tradict or vary the record.
" The record is conclusive evidence
that the judgment was rendered upon
some one or more of the issues legiti-
mately raised by the pleadings of the
parties.
" The parol proof is only to dis-
tinguish which of those several issues
were decided, or to show that some
particular fact was decided in the de-
termination of some of those issues."
Tapley, J., Jones v. Perkins, 54 Me.
396.
» Miles V. Caldwell, 2 Wall. 35 ;
Dunlap V. Glidden, 34 Me. 517 ; Sted-
man v. Patchin, 34 Barb. 218; Jus-
tice V. Justice, 3 Ired. L. 58.
2 Parker c. Thompson, 3 Pick.
429.
« Wright V. Mills, 4 H. & N. 488 ;
Edwards v. R. 9 Ex. R. 628 ; Well-
man, in re, 20 Vt. 693 ; Wiley v.
Southerland, 41 111. 25.
CHAP. XII.] WILLS MODIFIED BY PAROL. [§ 992.
the record does not speak.^ Thus, where the defendant died on
a particular day on which judgment was entered against him, it
is admissible to prove by the clerk that the judgment could not
have been entered before eight o'clock in the morning.^ So the
hour of the service of a writ may be explained or even varied by
parol.^ And it has been held that where a writ is dated on Sun-
day, it may be proved by parol that the date is a mistake for
another day.*
§ 991. It should be remembered, as has been already fully
seen, that with records, as with other documentary proof,
there are collateral incidents as to which parol evidence incidents
is admissible.* Thus, though a judgment cannot be shown by-
impeached, it.may be shown by evidence outside of the ^"° '
record that the parties interested united in limiting its lien.^ So
it may be shown by parol that a judgment against an indorser
was not intended to pass as collateral to a judgment against the
principal.'^
III. SPECIAL EULES AS TO WILLS.
§ 992. Wills are the most solemn of dispositive writings, and
yet, from the circumstances under which they are ^ ^
frequently written, they require peculiar delicacy in of wills to
the interpretation of terms, and in the elucidation of from
ambiguities. Many persons are unwilling to consult ^" ™^'
counsel in the preparation of wills. When counsel are called
in, wills may have to be written in great haste, and from the
dictation of testators sometimes incapable of collected and exact
statement. Even after a will has been carefully and deliberately
prepared by counsel, a testator may add codicils in a style differ-
ent from that of the body of the will, and with provisions whose
consistency with prior dispositions may be open to perplexing
doubts. And yet, notwithstanding these side considerations, the
1 D'Obree, ex parte, 8 Ves. 83 ; * Trafton v. Rogers, 13 Me. 315.
Lang V. PhiEips, 27 Ala. 311. See Whitaker v. Wisbey, cited supra,
^ LanningK. Pawson, 38 Penn. St. § 986.
480.~ Contra, Wright v. Mills, 4 H. « See supra, § 64.
& N. 488 ; Edwards v. R. 9 Exch. R. « Sankey v. Reed, 12 Penn. St. 95.
628. See Darling v. Dodge, 36 Me. 370.
' Allen V. Stage Co. 8 Greenl. 207; ' Bank v. Eordyce, 9 Penn. St.
"Williams o. Cheeseborough, 4 Conn. 275.
356.
233
§ 992.]
THE LAW OF EVIDENCE.
[book II.
courts have agreed that though the intent of the testator is to
be effectuated, this intent is to be drawn from the will, not
the will to be drawn from the intent.^ The reasons for this
stringent exclusion of testimony of the testator's intention are
conclusive. (1.) In the construction of contracts, evidence of
concurrent intent may be admissible, because, when one party
states to another his intention, in executing a document, and the
other accepts such intention, then this expression may be so
worked into the contract that the one party cannot recall it with-
out the other's assent. In respect to wills, however, there can
be no such mutuality in the expression of intentions ; for there
is no other party with whom the testator contracts. Hence it is
that no testator can be regarded as bound by expressions of in-
tention which, if made to-day, may be to-morrow revoked. Nor
is this all. Experience tells us that few kinds of talk are more
unreliable than talk about wills. Not only are expressions of in-
tention, when uttered (and ordinarily the very fact of their
utterance is a presumption against them), uttered with the con-
1 Hunt V. Hort, 3 Br. C. C. 311 ;
Miller v. Travers, 8 Bing. 253; Doe
V. Hiscocks, 5 M. & W. 368; Loring
V. Woodward, 41 N. H. 391; Picker-
ing V. Pickering, 50 N. H. 349 ; Wells
V. Wells, 27 Vt. 483 ; Crocker v.
Crocker, 11 Pick. 252 ; Brown v. Sal-
tonstall, 3 Mete. 423 ; Osborne v. Var-
ney, 7 Mete. 301 ; American Soc. v.
Pratt, 9 Allen, 109; Warren u. Gregg,
116 Mass. 304; Cliappel v. Avery, 6
Conn. 31 ; Canfield v. Bostwick, 21
Conn. 550 ; Ryerss v. Wheeler, 22
Wend. 148; White v. Hicks, 33 N,
Y. 383 ; Phillips v. McCombs, 53 N,
Y. 494; Charter v. Otis, 41 Barb
525; Johnson v. Hicks, 1 Lans. 150
Massaker v. Massaker, 13 N. J. Eq,
264 ; Leigh v. Savidge, 14 N. J. Eq,
124; Bowers v. Bowers, 1 Abb. (N
Y.) App. 214 ; Torbert v. Twining, 1
Yeates, 432 ; Brownfield v. Brown-
field, 12 Penn. St. 136 ; Wallize v.
Wallize, 55 Penn. St. 242; Best v.
Hammond, 55 Penn. St. 409; Tyson
V. Tyson, 37 Md. 567; Taylor v.
234
Boggs, 20 Ohio St. 516; Hayes v.
West, 37 Ind. 21 ; Rutherford v. Mor-
ris, 77 111. 397; Watkyns «. Flora, 8
Ired. L. 374; Ralston v. Telfair, 2
Dev. Eq. 255 ; Willis v. Jenkins, 30
Ga. 167 ; Love v. Buchanan, 40 Miss.
758 ; Gilliam v. Chancellor, 43 Miss.
437 ; Robnett v. Ashlock, 49 Mo.
171; Caldwell c. Caldwell, 7 Bush,
515.
Thus parol evidence of intent is in-
admissible to show that "children"
were meant to include illegitimate
children ; Shearman v. Angel, 1 Bai-
ley Eq. 351 ; Ward v. Epsy, 6 Humph.
447; or that for " children " was meant
" sons ; " Weatherhead v. Baskerville,
11 How. 329; Weatherhead v. Sewell,
9 Humph. 272 ; or that by a devise to
a parent, known to be dead at the
time, was meant a devise to the par-
ent's children; Judy v. Williams, 2
Ind. 449 ; or that the term "heir at
law '' was used in the popular, not the
legal sense. Aspden's Est. 2 Wall.
Jr. C. C. 368. Supra, § 957.
CHAP. Xn.J WILLS MODIFIED BY PAROL. [§ 992.
sciousness that they may be at any time recalled ; but, as we
have already noticed, it is a common maxim that people who
talk about their wills very rarely make wills in conformity with
their talk. What a man puts down in a solemn testamentary
instrument is naturally very different from what he might say
when disposed either to mystify those whom he might consider
impertinent inquirers, or to please those whom for the moment he
might particularly desire to please. As a general rule, therefore,
declarations, as expressing the intention of a testator as to his
will, are to be rejected, for the reason that such declarations, if
not in themselves illusory, are subject at any moment to be re-
called, and cannot be regarded as exhibiting definite intentions,
until they are put in a definite shape. (2.) Nor are we to for-
get, when considering this question, the character of the medium
through which these declarations must pass. The testator's lips
are sealed in death ; and evidence of his intentions, thus repro-
duced, comes to us without that sanction which is given when
there is a power of explanation in the person whose remarks are
reported.^ (3.) In view of the reasoning just expressed, and for
the additional reason that public policy requires that wills should
be solemn instruments, deliberately prepared, and that every
proper obstacle should be put in the way of a disturbance of the
ordinary course of descent by the forgery of wills, the statute of
frauds, as we have already seen,^ has prescribed peculiar sanc-
tions as essential to due testamentary action. The statute of
frauds, however, would be defied and abrogated, and the wrongs
it strives to correct would be perpetuated, if it were allowable,
after a will has been duly executed, and when the testator is no
longer capable of assent or dissent, to strike out part of its con-
tents, and insert new provisions. These new provisions, if so
inserted, will be destitute of the formal sanction which the stat-
ute requires, and will be, by force of the statute, if for no other
reason, inoperative. ^ Insensible provisions the courts may be
unable to effectuate ; ambiguous expressions may be explained by
showing what they meant at the time they were used ; but pro-
visions which were not put in by the testator himself at the time
of execution and attestation, cannot be put in after execution
and attestation, and, a fortiori, cannot be put in after the testa-
1 See supra, § 467. ^ Supra, § 884.
235
§ 992.]
THE LAW OF EVIDENCE.
[book II.
tor's death. Hence it is that with two exceptions, evidence of
the testator's ijntentions is inadmissible in explanation of a will.
These exceptions are as follows : (1.) What is said at the time of
the execution and attestation is admissible as part of the res
gestae, though not to contradict the will. (2.) When it is doubt-
ful as to which of two or more extrinsic objects a provision, in
itself unambiguous, is applicable, then evidence of the testator's
declarations of intention is admissible ; not, indeed, to interpret
the will, for this is on its face unambiguous, but to interpret the
extrinsic objects. When this is done, the court, so it is held,
applies the will by determining which of these extrinsic objects
it designates. This exception will be hereafter discussed. ^ But
even this partial relaxation of the rule has been deplored, on
account not only of its impolicy, but of the vagueness of the
distinction it introduces ; and it has been questioned whether it
would not be better either to exclude declarations of intent in
toto, or to admit them in toto.^
1 Infra, § 997.
" Stephen's Evidence, 163.
Sir James Wigrana, in liis author-
itative Treatise on Wills, collects the
result of the rulings in this relation in
the following seven propositions : —
"LA testator is always presumed
to use the words, in which he ex-
presses himself, according to their
strict and primary acceptation, unless
from the context of the will it appears
that he has used them in a different
sense ; in which case the sense in
which he thus appears to have used
them will be the sense in which they
are to be construed. II. Where there
is nothing in the context of a will,
from which it is apparent that a tes-
tator has used the words, in which he
has expressed himself, in any other
than their strict and primary sense,
and where his words so interpreted
are sensible with reference to extrinsic
circumstances, it is an inflexible i-ule
of construction, that the words of the
will shall be interpreted in their strict
and primary sense, and in no other,
236
although they may be capable of some
popular or secondary interpretation,
and although the most conclusive evi-
dence of intention to use them in such
popular or secondary sense be ten-
dered. III. Where there is nothing in
the context of a will, from which it is
apparent that a testator has used the
words in which he has expressed him-
self, in any other than their strict and
primary sense, but his words so inter-
preted are insensible with reference to
extrinsic circumstances, a court of law
may look into the extrinsic circum-
stances of the case to see whether the
meaning of the words be sensible in
any popular or secondary sense, of
which, with reference to these circum-
stances, they are capable. IV. Where
the characters in which a will is writ-
ten are difficult to be deciphered, or
the language of the will is not under-
stood by the court, the evidence of
persons skilled in deciphering writing,
or who understand the language in
which the will is written, is admissible
to declare what the characters are, or
CHAP. XII.]
WILLS MODIFIED BY PAROL.
[§ 993.
§ 993. With the exceptions, therefore, just noticed, we may
regard it as settled that a testator's intentions cannot be proved
by parol for the purpose of varying or even explaining his will.
No doubt we have early English cases where a less stringent rule
was sustained,^ but these cases are now discredited,^ and with
them should fall the American rulings to which they for a time
gave rise.' Acting on the strict principle of exclusion we have
noticed, the English courts have rejected evidence when tendered
to show what persons a testator meant to include or exclude in
employing the word " relations ; " * what articles he intended to
give by the word " plate," ^ and what property he meant to
to inform the court of the proper
meaning of the words. V. For the
purpose of determining the object of
a testator's bounty, or the subject of
disposition, or the quantity of interest
intended to be given by his will, a
court may inquire into every material
fact relating to the person who claims
to be interested under the will, and to
the property which is claimed as the
subject of disposition, and to the cir-
cumstances of the testator, and of his
family and affairs; for the purpose of
enabling the court to identify the per-
son or thing intended by the testator,
or to determine the quantity of inter-
est he has given by his will. The
same, it is conceived, is true of every
other disputed point, respecting which
it can be shown that a knowledge of
extrinsic facts can in any way be
made ancillary to the right interpreta-
tion of a testator's words. VI. Where
the words of a will, aided by evidence
of the material facts of the case, are
insufficient to determine the testator's
meaning, no evidence will be admis-
sible to prove what the testator in-
tended, and the will (except in cer-
tain special cases, — see Proposition
VII.) will be void for uncertainty.
VII. Notwithstanding the rule of law
which makes a will void for uncer-
tainty where the words, aided by evi-
dence of the material facts of the case.
are insufficient to determine the testa-
tor's meaning, — courts of law, in cer-
tain special cases, admit extrinsic evi-
dence of intention, to make certain the
person or thing intended, where the de-
scription in the will is insufficient for
the purpose. These cases may be thus
defined : where the object of a testa-
tor's bounty, or the subject of dispo-
sition (i. e. person or thing intended)
is described in terms which are appli-
cable indifferently to more than one
person or thing, evidence is admissible
to prove which of the persons or
things so described was intended by
the testator." Wigram, Wills, 10-13.
1 Thomas v. Thomas, 6 T. E. 671;
Beaumont v. Fell, 2 P. Wms. 141;
Doe V. Needs, 2 M. & W. 129.
^ See remarks of Lord Abinger in
Doe V. Hiscocks, 5 M. & W. 368. In-
fra, § 997.
8 Shore V. Wilson, 9 CI. & Fin. 525,
per Coleridge, J.; 556, per Parke, B.;
565, 566, per Tindal, 0. J. See Re
Peel, Law Rep. 2 P. & D. 46; 39 L.
J. Pr. &Mat. 36, S. C.
* Goodinge v. Goodinge, 1 Ves. Sen.
230 ; Edye v. Salisbury, Arab. 70 ;
Green v. Howard, 1 Br. C. C. 31. See
Sullivan v. Sullivan, 4' I. R. Eq. 457,
where the words were, " my dearly
beloved." Taylor's Ev. § 1038.
* Nicholls V. Osborn, 2 P. Wms.
419; Kelly ». Powlett, Amb. 605.
237
§ 994.] THE LAW OF EVIDENCE. [BOOK II.
devise by the words "lands out of settlement,"^ or by other
generic terms.^ In this country, in developing this view, it has
been repeatedly held, that when the description of a devisee
applies with exactitude to one person, parol evidence is inad-
missible to show that another person, less exactly described,
is the intended object of the testator's bounty.*
§ 994. In a leading English case,* the testator devised all his
freehold and real estate " in the county of Limerick and in the
city of Limerick." He had no real estates in the county of
Limerick, but his landed property consisted of estates in the
county of Clare, which were not mentioned in the will, and a
small estate in the city of Limerick, inadequate to meet the tes-
tamentary qharges. Under these circumstances the court held,
that the devisee could not be allowed to show by parol evidence
that the estates in the county of Clare were inserted in the de-
vise to him in the first draft of the will, which was sent to a
conveyancer to make certain alterations not affecting those es-
tates ; that by mistake ^ he erased the words " county of Clare ; "
and that the testator, after keeping the will by him for some time,
executed it without adverting to the alteration as to that county.
" The plaintiff," said Chief Justice Tindal, in pronouncing the
joint opinion of himself. Lord Lyndhurst, and Lord Chancellor
Brougham,^ " contends that he has a right to prove that the tes-
tator intended to pass, not only the estate in the city of Limir-
ick, but an estate in a county not named in the will, namely,
the county of Clare, and that the will is to be read and con-
strued as if the word Clare stood in the place of, or in addition
1 Strode v. Russell, 2 Vern. 621. » 1 Redf. on Wills, 498 ; Tucker ii.
2 Wigr. Wills, 99-105; Doe v. Hub- Seaman's Aid Soc. 7 Mete. 188; Kel-
bard, 15 Q. B. 227; Horwood v. Griffith, ley v. Kelley, 25 Penn. St. 460; Wal-
23 L. J. Ch. 465; 4 De Gex, M. & G. lize v. Wallize, 55 Penn. St. 242 ;
700, S. C. ; Hicks v. Sallitt, 23 L. J. Johnson's Appeal, Sup. Ct. of Penns.
Ch. 571; Millard v. Bailey, Law Rep. 1876, 3 Weekly Notes, 52.
1 Eq. 378, per Wood, V. C. On the * Miller v. Travers, 8 Bing. 244.
other hand, in Knight v. Knight, 30 ^ gge, also, Francis v. Dichfield, 2
L. J. Ch. 644, Stuart, V. C, appears Coop. 581, per Ld. Hardwicke.
to have held that extrinsic evidence ° Ld. Lyndhurst, C. B., and Tindal,
was admissible to show that shares in C. J., had been summoned to assist
an insurance company were meant to the Lord Chancellor in this case,
pass under the words " ready money."
See Taylor, § 1089.
238
CHAP. XII.] WILLS MODIFIED BY PAROL. [§ 994.
to, that of Limerick. But. this, it is manifest, is not merely call-
ing in the aid of extrinsic evidence to apply the intention of the
testator, as it is to be collected from the will itself, to the existing
state of his property ; it is calling in extrinsic evidence to intro-
duce into the vs^ill an intention not apparent upon the face of the
will. It is not simply removing a diflBculty, arising from a de-
fective or mistaken description ; it is making the will speak upon
a subject on which it is altogether silent, and is the same in
efEect as the filling up a blank which the testator might have left
in his will. It amounts, in short, by the admission of parol evi-
dence, to the making of a new devise for the testator, which he
is supposed to have omitted." ^
The same result was reached in a case decided by the supreme
court of Pennsylvania in 1876.^ The suit was an ejectment
brought by Margaret Williams against John Robinson, " for that
portion of the woodland late of Joseph Robinson, deceased,
lying northwest of the old wood road, and north of Damon
Stevens." The defendant disclaimed as to a portion of the land
described, and as to the residue pleaded not guilty. Upon the
trial, the plaintiff put in evidence the will of Joseph Robinson,
by which he devised to the defendant, John Robinson, " one half
of the woodland lying south of the old wood road, and north of
Damon Stevens ; " and named the plaintiff Margaret Williams
his residuary devisee. She also showed that the testator owned
about twenty-five acres to the northwest, and about four acres to
the south of this " old wood road," and rested. The defendant
then offered to show by parol that the testator had intended to
devise to him, the defendant, one half of the woodland " lying
northwest of the old wood road," and that the word " south " had
been written by mistake. To this offer plaintiff objected, and
the objection was sustained. Upon a verdict and judgment for
the plaintiff, the defendant took a writ of error, assigning for
error the rejection of the parol evidence offered by him. In the
supreme court, the ruling was affirmed. " It is shown very
clearly," say the court, " by the late Chief Justice Reed in Wal-
lize V. Wallize,^ that parol evidence is inadmissible to change the
' 8 Bing. 249, 250;' Taylor's Evid. " Kobinson v. Williams, 1 Weekly
§ 994. Notes, 337.
» 55 Penn. St. 242.
'239
§ 996.] THE LAW OF EVIDENCE. [BOOK H.
terms of a will, or correct a supposed mistake. It would defeat
the chief purpose of the statute relating to wills, in requiring a
writing to be signed by the party. This is not a case for the
application of the principle that parol evidence may be given to
identify the thing described in the will ; but the purpose of the
offer was, in fact, to change the terms of the will, and to substi-
tute one thing for another ; in other words, to change the word
' south ' and make it read ' north,' and thereby alter the subject
of the devise." ^
§ 995. Even where there is a mistake in a will caused by the
inadvertence of those who prepared it, and it does not in conse-
quence carry out the testator's intentions, still the court will not
correct it.^ And a letter written to a testator by his solicitor,
whether by way of advice or statement, is inadmissible for the
purpose of construction of the will.^ On the same principle dec-
larations of the testatrix, made at the time of executing the will,
to the effect that she desired to have it so drawn that in case C.
B. G. died before reaching the age of twenty -five, none of the
property should go to the family of his mother, have been re-
fused admission to vary the terms of the will.*
§ 996. Where a term, descriptive of an object, has two mean-
Where pri- ings, one general and popular, but which is inapplica-
meaaingis b^® to any ascertainable object, and the other, capable
Se to'any °^ parol proof, is special and latent, such parol proof
asceitaina- ^u be received, if the result be to indicate an object
evidence of consistent with the writer's intentions as expressed in
1 In Kyerss v. Wheeler, 22 Wend, used by this testatrix in any sense di£-
148, the court strangely held that dec- ferent from their ordinary acceptance,
larations made at the time of the exe- or tending to show any latent ambi-
cution could not be received, but that guity, or taking the case out of the rule
prior declarations were admissible. excluding parol testimony as above
' See infra, § 1008; Newburgh v. expressed. For these reasons, which
Newburgh, 5 Mart. 361. I have endeavored to express as briefly
* Per James, L. J., Wilson v. as possible, I concur in tie opinions al-
O'Leary, L. K. 7 Ch. 456 ; Powell's ready expressed. Felton v. Sawyer,
Evidence, 4th ed. 423. 41 N. H. 202; Brown v. Brown, 44 N.
* Ordway v. Dow, 55 N. H. 12. H. 281 ; Burleigh v. Clough, 52 N. H.
" There is nothing, however, am- 267, are all cases in which the rule
biguous in the terms of this will. There given above, from Woodeson, is ree-
ls no doubt about the meaning of the ognized, and its application illustrat-
words, and no testimony is offered ed." Gushing, C. J., Ordway ». Dow,
tending to show that the words were 55 N. H. 18.
240
CHAP. XII.] WILLS MODIFIED BY PAEOL. [§ 997.
the will.^ For this purpose, evidence of the condition secondary
,«.,,,,. . . meaning
of the testator s family and of his estate is admissible, admissible,
under the limitations hereafter expressed.^ But the rule just
stated must be carefully guarded so as to exclude evidence of
such declarations of the testator's intent as veould give a new
effect, in cases of the character just mentioned, to the will. As
an illustration of this may be mentioned a case before Lord Pen-
zance,'^ where a question arose as to the meaning of a clause in
which the testator appointed my " son, Foster Charter," as ex-
ecutor. He had two sons, William Foster Charter, and Charles
Charter, and " many circumstances pointed to the conclusion
that the person whom the testator wished to be his executor was
Charles Charter. Lord Penzance not only admitted evidence of
all the circumstances of the case, but expressed an opinion that,
if it were necessary, evidence of declarations of intention might
be admitted." * But " the part of Lord Penzance's judgment
above referred to was unanimously overruled in the house of
lords ; though the court, being equally divided as to the con-
struction of the will, refused to reverse the judgment, upon the
principle, ' Praesumitur pro negante.' "^
§ 997. The most common case of latent ambiguity is that
which exists when the writer makes use of a term
When
equally descriptive of several objects, and when from terms are
the writing itself it cannot be collected which object he *„ severaf
had ill view. In such case not only can extrinsic cir- <'''J|'='8,
cumstances be put in evidence from which his intent intent ad-
,.,,,,. 1 IT- missible to
can be inferred, but his own explanatory declarations distin-
can be proved. As the rule is stated by Lord Abinger : ^"'^ '
" There is another mode of obtaining the intention of the tes-
tator, which is by evidence of his declarations, of the instruc-
* Doe V. Hiscoeks, 5 M. & W. 369 ; Young, 3 Minn. 209; Hopkins v. Holt,
Taylor on Evidence, § 1109 ; Trustees 9 Wise. 228 ; Billingslea v. Moore; 14
V. Peaslee, 15 N. H. 317; Brown v. Ga. 370; Elder v. Ogletree, 36 Ga.
Browa,43 N.H . 17; Hine v. Hine, 64.
39 Barb. 507 ; St. Luke's Home v. = Johnson v. Lydford, L. R. 1 P. &
Assoc, for Ind. Females, 52 N.Y. 191; M. 546; Holmes v. Holmes, 36 Vt.
Pritchard v. Hicks, 1 Paige, 270; Mar- 525; Wootton v. Redd, 12 Grat. 196.
shall's Appeal, 2 Penn. St. 388 ; Mit- » Charter v. Charter, L. R. 2 P. &
ehell w. Mitchell, 6 Md. 224; Robert- D. 315. -
son V. Dunn, 2 Murph. 133; Allan u. * Stephen's Ev. 161.
Vanmeter, 1 Mete. (Ky.) 264 ; Case v. ' Ibid., Errata.
VOL. II. 16 241
§■ 997.] THE LAW OF EVIDENCE. [BOOK II.
tions given for his will, and other circumstances of the like
nature, which are not adduced for explaining the words or mean-
ing of the will, hut either to supply some deficiency, or remove
some obscurity, or to give some effect to expressions that are un-
meaning or ambiguous. Now, there is hut one case^ in which it
appears to us that this sort of evidence of intention can properly
be admitted, and that is, where the meaning of the testator's words
is neither ambiguous nor obscure, and where the devise is on the
face of it perfect and intelligible, but, from some of the circum-
stances admitted in proof, an ambiguity arises, as to which of the
two or more things,^ or which of the two or more persons (each
answering the words in the will), the testator intended to express.
Thus, if a testator devise his manor of S. to A. B., and has two
manors of North S. and South S., it being clear he means to de-
vise one only, whereas both are equally denoted by the words he
has used, in that case there is what Lord Bacon calls ' an equivo-
cation,' that is, the words equally apply to either manor, and evi-
dence of previous intention may be received to solve this latent
ambiguity ; ^ for the intention shows what he meant to do ; and
when you know that, you immediately perceive that he has done it
by the general words he has used, which, in their ordinary sense,
may properly bear that construction. It appears to us, that, in
all other cases, parol evidence of what was the testator's inten-
tion ought to be excluded, upon this plain ground, that his will
ought to be made in writing ; and if his intention cannot be
made to appear by the writing, explained by circumstances, there
is no will." * It has been consequently held, that, where a tes-
tator had devised one house " to George Gord, the son of George
Gord ; " another " to George Gord, the son of John Gord ; " and
a third, after the expiration of certain life estates, " to George
Gord, the son of Gord ; " evidence of his declarations was admis-
sible to show, that the person meant to be designated by the last
description was George the son of Qeorge Gord.* So, where the
devise was "to John Allen, the grandson of my brother Thomas,
^ As to rebutting an equity, see * Doe v. Hiscocks, 5 M. & W. 368,
Bupra, § 973. 369, by Lord Abinger; Taylor's Ev.
" See Harman v. Gurner, 35 Beav. § 1093; and see cases cited under last
478. section.
« See Douglas v. Fellows, 1 Kay, « Doe v. Needs, 2 M. & W. 129;
114, per Wood, V. C. Doe v. Morgan, 1 C. & M. 235.
242
CHAP. XII.] WILLS MODIFIED BY PAROL. [§ 998.
and I charge the same with the payment of £100 to each and
every the brothers and sisters of the said John Allen ; " and it
appeared that, at the date of the will, the testator's brother
Thomas had two grandsons named John Allen, one having sev-
eral brothers and sisters, and the other having one brother and
one sister ; the court received evidence of the declarations of the
testator, to show which grandchild was intended.^ The same
conclusion was reached where lands were left to John Cluer, of
Calcot, and two persons, father and son, were of that name.^
So, where property was devised to " William Marshall, my sec-
ond cousin," and it appeared that the testator had no second
cousin of that name, but that he had two first cousins once re-
moved, one named William Marshall, and the other named Wil-
liam John Robert Blandford Marshall, Vice Chancellor Page
Wood admitted similar evidence to resolve this latent ambigu-
ity.^ But to such cases the right to prove intention is limited ;
and we may hence accept Judge Redfield's summary,* that "Doe
V. Hiscocks is now universally admitted to have settled the law
upon this point ; that the only cases in which evidence to prove
intention is admissible are those in which the description in the
will is ambiguous in its application to each of several objects."
§ 998. We must conclude, therefore, that unless there be a
latent ambiguity as to two or more probable objects, Ailthesur-
the intentions of a testator are always inadmissible to anThabfu
affect the construction. It is otherwise as to evidence "* testator
may be
of the family, surroundings, and habits of the testator, proved,
which, when relevant to a litigated question of construction, is
always to be received.^ Hence, where a testator appointed his
" nephew A. B." executor, and his own nephew and his wife's
' Doeu.AUen, 12 A. &E.451; 4 P. P. & D. 8; Newman v. Piercy, 25
& D. 220, S. C. ; Fleming v. Fleming, W. R. 37 ; Powell v. Biddle, 2 Ball.
31 L. J. Ex. 419 ; 1 H. & C. 242, S. C. 70; Howard v. Ins. Co. 49 Me. 288;
2 Jones V. Newman, 1 W. Bl. 60, Bodman v. Tract Soc. 9 Allen, 447;
explained in Doe v. Hiscocks, 5 M. & Connolly r. Pardon, 1 Paige, 291; Ee-
W. 370. wait V. Ulrich, 23 Penn. St. 388 ;
' Bennett v. Marshall, 2 Kay & J. Cresson's Appeal, 30 Penn. St. 437;
740. See particularly remarks supra, Woottonu. Redd, 12 Grat. 196;Maund
§ 992. «. McPhail, 10 Leigh, 199 ; Woods v.
* 1 Redfield on Wills, ed. 1876. Woods, 2 Jones Eq. 420 ; Travis v.
' Atty. Gen. V. Drummond, 1 Dru. Morrison, 28 Ala. 494 ; Hockensmith
& W. 367; Grant .;. Grant, L. R. 2 v. Slusher, 26 Mo. 237.
243
§ 998.]
THE LAW OF EVIDENCE.
[book n.
nephew both bore that name, extrinsic evidence of the testa-
tor's family and surroundings was admitted to show that the
latter was the person designated.-' So when an estate was de-
vised to Mary Beynon's three daughters, Mary, Elizabeth, and
Ann ; and at the date of the will Mary Beynon had two legit-
imate daughters, namely, Mary and Ann, and a younger illegit-
imate child, named Elizabeth, the court, in order to rebut the
claim of the illegitimate Elizabeth, permitted the introduction
of extrinsic evidence, which showed that Mary Beynon had for-
merly had a legitimate daughter named Elizabeth, who was bom
in the order stated in the will ; and that, though this daughter
had died several years before the date of the will, her death was
unknown to the testator, who had also been studiously kept in
ignorance of the birth of the natural child ; and under these cir-
cumstances the jury were held to have rightly decided, that the
illegitimate daughter Elizabeth was not entitled to the devise in
question.^ "In construing a will," so is this position accu-
rately expressed by Blackburn, J.,^ " the court is entitled to put
1 Grant v. Grant, L. R. 2 P. & D.
8; 18 W. R. 330 ; followed in Grant
V. Grant, L. R. 5 C. P. 381; 18 W.
R. 951.
So, more recently, the chancery di-
vision of the English high court of
justice, in Laker v. Hordern, 34 L. T.
Rep. (N. S.) 88, held that illegitimate
daughters were entitled to take under
a will as personae designatae, on proof
of the following facts, which were held
admissible: H. and L. lived together
as husband and wife for many years
without being legally married. They
had three illegitimate female children.
In 1 85 7 H. and L. were legally married,
and in 1859 H. made his will, giving
certain personal estate to trustees upon
trust for his wife L. for life, and after
her death, " for all my daughters who
should attain twenty-one years or
marry." H. never had any other
children, and died in 18G1. The chil-
dren had always lived with their par-
ents, and were spoken of and intro-
duced as their daughters. It was held
244
that not only was the evidence of the
state of the family admissible, but that
the illegitimate daughters of H. were
sufficiently described in the will, and
were entitled to the bequest. The
court relied on a ruling of Lord Eldon
in Wilkinson v. Adam, 1 V. & B. 422.
In this latter case under a devise by
a married man, having no legitimate
children, " to the children which I
may have by A. living at my decease,"
issue, who had acquired the reputa-
tion of being his children by A. before
the date of the will, were held entitled
as upon the whole will intended, and
sufficiently described. In Lepine ».
Bean, L. R. 10 Eq. 170, it was held
that an illegitimate child took under a
gift to " all and every my children,"
the testator having no legitimate chil-
dren.
2 Doe t). Beynon, 12 A. & E. 431 ;
Phillips V. Barker, 1 Sm. & Gif. 583;
Taylor, § 1085.
» AUgood V. Blake, L. B. 8 Eq.
160.
CHAP. XII.] WILLS MODIFIED BY PAROL. [§ 999.
itself in the position of the testator, and to consider all material
facts and circumstances known to the testator with reference to
which he is to be taken to have used the words in the will, and
then to declare what is the intention evidenced by the words
used, with reference to those facts and circumstances- which were
(or ought to have been) in the mind of the testator when he
used those words." After quoting Wigram on Extrinsic Evi-
dence, and Doe v. Hiscocks, he adds : " No doubt, in many cases
the testator has, for the moment, forgotten or overlooked the ma-
terial facts and circumstances which he well knew. And the
consequence sometimes is, that he uses words which express an
intention which he would not have wished to express, and would
have altered if he had been reminded of the facts and circum-
stances. But the court is to construe the will as made by the
testator, not to make a will for him ; and therefore it is bound
to execute his expressed intention, even if there is great reason
to believe that he has by blunder expressed what he did not
mean."
§ 999. It was once thought that when a description of a devi-
see answered equally two separate claimants, the one in such
having identity of name was to be preferred.^ This thf extein-
doctrine, however, has been more recently repudiated; ^ Ire to'^^e
and it is now settled that the court will take cognizance considered,
of all the facts, and place itself, as nearly as may be, in the sit-
uation of the testator at the time of executing the instrument ;
and if it can by aid of such circumstances ascertain from the lan-
guage of the will which of the claimants was intended by the
testator, a confusion as to names will not be permitted to defeat
such intent.^
' Camoys v. Blundell, 1 H. of L. tate, 11 Ir. Eq. K. N. S. 361; Col-
Cas. 786, per Parke, B., pronouncing clough v. Smyth, 14 Ir. Eq. R. N. S.
the opinion of the judges. But see 127; and 15 Ibid. 353; Garner v. Gar-
Drake «. Drake, 25 Beav. 642; 29 L. ner, 29 Beav. 116; Gillett v. Gane,
J. Ch. 850, S. C. in Dom. Proc. ; 8 H. Law Kep. 10 Eq. 29 ; 39 L. J. Ch. 818,
ofL. Cas. 172, S. C. S.C.
^ Drake v. Drake, 8 H. of L. Gas. « Doe v. Huthwaite, 3 B. & A. 630;
172, 177; Camoys v. Blundell, 1 H. Doe v. Hiscocks, 5 M. & W. 368;
of L. Cas. 778, 786, 792; Thomson v. Blundell v. Gladstone, 11 Sim. 467,
Hempenstall, 7 Ec. & Mar. Gas. 141, 485-488; 1 Phill. 279, 282, 283, S. C;
per Dr. Lushington; 1 Roberts. 783, 1 H. of L. Cas. 778, nom. Camoys v.
S. C. ; though see In re Plunkett's Es- Blundell ; Bernasconi v. Atkinson, 10
245
§ 1002.]
THE LAW OF EVIDEKCE.
[book II.
§ 1000. In England, it has been held in equity that if legacies
be given to a specified ntlmber of children (e. g. four, £1000
being given to each of them), and it turns out that at the date
of the will the testator had a greater number of children, the
sum awarded, if the estate holds out, will be decreed to each of
the children actually so existing.^
§ 1001. To the rule admitting declarations as to latent ambi-
guities, there has been proposed a qualification some-
what artificial. It has been said that if the description
of the person or thing be partly applicable and partly
inapplicable to each of several objects, though extrin-
sic evidence of the surrounding circumstances may be '
received for the purpose of ascertaining to which the
admissible, language applies, evidence of the writer's declarations
of intention in this respect cannot be received.^
§ 1002. To solve latent ambiguities as to property, proof of
Evidence extrinsic facts is always proper ; as in such case the
admissible effect of the evidence is not to vary but to apply
as to other _ j rr j
ambigui- the will.* Thus where a testator bequeathed to his
ties.
children the sums of I. X. X., and O. X. X., the
court received parol evidence to the effect that the testator had.
When de-
scription is
only partly
applicable
to each of
several ob-
jects, then
declara-
tions of in-
tent are in-
Hare, 345 ; Tn re Bridget Feltham, 1
Kay & J. 528; Hodgson v. Clarke, 1
De Gex, F. & J. 394, reversing S.
C. Rep. 1 Giff. 139; Re Gregory's
Settlt. & Wills, 34 Beav. 600 ; Re
Noble's Trusts, 5 I. R. Eq. 140; Re
Feltham's Trusts, 1 Kay & J. 528;
Kilvert's Trusts, in re, L. R. 7 Ch.
Ap. 170, reversing S. C. L. R. 12 Eq.
183. And see particularly Ryall v.
Hannam, 10 Beav. 538.
1 Daniell v. Daniell, 4 De Gex &
Sm. 337; Lee v. Pain, 4 Hare, 249;
Scott V. Fenoulhett, 1 Cox Cli. R. 79 ;
Yeats V. Yeates, 16 Beav. 170.
» Doe V. Hiscocks, 5 M. & W. S3.
See, also, Drake v. Drake, 8 H. of L.
Cas. 172; Douglass v. Fellows, 1 Kay,
114; Bernasconi v. Atkinson, 10 Hare,
345, overruling Thomas t;. Thomas,
6 T. R. 677; Stinger v. Gardner, 27
Beav. 35 ; S. C. 41 De Gex & J. 468;
246
Stephen's Evidence, 162; Taylor's
Ev. § 1109.
8 Doe V. Martin, 4 B. & Ad. 785,
per Parke, J. ; Doe «. Burt, 1 T. R.
704, per BuUer, J. ; Castle v. Fox, 11
Law Rep. Eq. 542; 40 L. J. Ch. 302,
S. C. ; Webb v. Byng, 1 Kay & J.
580; Doe v. Ld. Jersey, 1 B. & A.
550; 5. C. in Dom. Proc. 3 B. & C.
870; Okeden v. Clifden, 2 Russ. 300;
Spencer v. Higgins, 22 Conn. 521;
Crosby v. Mason, 32 Conn. 482;
Domest. Miss. Appeal,*30 Penn. St.
425; Warner v. Miltenberger, 21 Md.
264; Young v. Twigg, 27 Md. 620;
Ashworth v. Carleton, 12 Oh. St. 381;
Hopkins v. Grimes, 14 Iowa, 73; Kin-
sey .'. Rhem, 2 Ired. L. 192; McCall
V. Gillespie, 6 Jones L. 533; Riggs
V. Myers, 20 Mo. 239 ; Creasy v. Al-
verson, 43 Mo. 13.
CHAP. XII.] WILLS MODIFIED BY PAROL. [§ 1003.
in his business as a jeweller, used the ciphers in dispute to indi-
cate respectively £100 and £ 200.1 So where a will devises
"the M. farm, containing eight fields," evidence is admissi-
ble to show that the farm contains nine fields, and that the word
" eight " was entered by mistake.^
§ 1003. As an illustration of the admissibility of parol evi-
dence going to show to which of several objects an ambiguous
testamentary expression applies, may be cited an interesting Eng-
lish case,3 where the controversy turned on the word " mod," as
used in the following codicil of the distinguished sculptor, NoUe-
kens : " In case of my death, all the marble in the yard, the
tools in the shop, bankers, mod tools for carving," &c., " shall be
the property of Alex. Goblet." The plaintiff contended that
the word meant " models ; " the defendant, who was the execu-
tor, urged that either it was an abbreviation for " moulds," or
that it should be read in connection with the words which imme-
diately followed it, and meant " modelling tools for carving."
On the one hand, it was proved that the legatee had been in
the testator's service for thirty years, and was highly esteemed
by him as one of his best workmen ; and statuaries were called
to prove that no such tools were known as modelling tools for
carving, but that the word " mod " would be understood by any
sculptor as a simple abbreviation of the word models. On the
other hand, the executor showed that the testator's models were
rare and curious works of art, which had sold for a large sum,
but that all the other articles mentioned in the codicil were of
trifling value ; and he further gave in evidence, that the testator
had a great number of moulds in his possession, which were not
specifically disposed of by the will. Reading the codicil by the
light of this extrinsic evidence. Vice Chancellor Shadwell came
to a decision that the word in question sufficiently described the
testator's. models; and although this decree was subsequently re-
versed by Lord Brougham, the reversal rested, not on the inad-
missibility of any portion of the evidence, but on the ground
that the models had been distinctively bequeathed by will to an-
other person.* And where a testator devised " all his lands in
' Kell V. Charmer, 23 Beav. 1 95. » Goblet v. Beechey, 3 Sim. 24.
= Coleman u. Eberly, 76 Penn. St. * 2 Russ. & Myl. 624 ; Taylor's Ev.
197. § 1083.
247
§ 1004.J THE LAW OF EVIDENCE. [BOOK II.
the parish of Doynton " to his daughter, and it appeared that he
had a farm, which at that date was generally reputed to be
wholly in Doynton, but which subsequently turned out to be
partly in another parish, the court of exchequer rightly held that
the entire farm passed under the will.i A similar conclusion
was reached in a case where a testator directed in his will that
all moneys which he had advanced or might advance to his chil-
dren, " as will appear in a statement in my handwriting," should
be brought into hotchpot, upon which the court, in addition to
other extrinsic evidence of the nature and amount of the ad-
vances, admitted an unattested document, which, after the date
of the will, had been drawn up by the testator, with the apparent
view of furnishing a guide to his trustees on the subject.^ On
the same principle, proof of extrinsic facts will be admitted to
identify an imperfectly executed testamentary paper, if the ob-
ject be to incorporate that document with a duly attested codicil,
which refers in general terms to the testator's " last will." ^
§ 1004. We have already seen * that erroneous particulars in
Erroneous ^ description of property can be rejected, when an 6b-
may be^re- J®^*' ^^^^ ^^ found answering justly and naturally to
jected. the body of the description. This rule is frequently
applied to wills. Thus where a testator had devised to certain
legatees .£1,250, which he described as "part of his stock in the
4 per cent, annuities of the Bank of England ; " and at the date
of the will, and thence up to the time of his death, the testator
had no such stock, but he had had some money in the 4 per
cents, some years before, and had sold it out, and invested the
produce in long annuities ; upon proof of these facts being ten-
dered, the master of the rolls admitted the evidence, not, indeed,
" to prove that there was a mistake, for that was clear, but to
show how it arose ; " and he then held, that as the testator obvi-
ously meant to give the legacies, but mistook the fund, the only
effect of the mistake as explained by the evidence was, that the
legacies ceased to be specific, and must consequently be paid out
of the general personal estate.^ In a subsequent judgment, on
1 Anstee v. Nelms, 1 H. & N. 225. 427. See Almosino in re, 1 Sw. & Tr.
= Whateley v. Spooner, 8 Kay & J. 508.
542. 4 Supra, § 945.
» Allen V. Maddock, 11 Moo. P. C. ^ Selwood v. Mildmay, 3 Ves. S06.
248
CHAP. XII.] WILLS MODIFIED BY PAROL. [§ lOOt)
a similar state of facts, Lord Langdale's conclusions rested on
the same grounds. " It is very necessary to observe," he said,
" that in the case of Selwood v. Mildmay the evidence was re-
ceived only for the purpose stated by the master of the rolls in
his judgment," that is, in order to show how the mistake arose ;
" and not, as it has been erroneously supposed,^ for the purpose
of showing that the testator, when he used the erroneous descrip-
tion of the 4 per cent, stock, meant to bequeath the long annui-
ties, which he had purchased with the produce of the 4 per cent,
stock ; and that the result of the case was, not to substitute an-
other specific subject in the place of a specific legacy which the
will purported to bequeath; not to substitute the long annui-
ties which the testator had, and did not purport to give, for the
4 per cent, bank annuities which he had not, and did purport to
give ; " but simply to render legacies, which were primd facie
specific, payable out of the general personal estate.^
§ 1005. On the other hand, if such alleged surplusage be in-
troduced by way of exception or limitation, then it cannot be
discharged, but must operate to defeat the devise, so far as con-
cerns the object of the parol evidence.^ So if there be one object,
as to which all the demonstrations in a will are true, and another
as to which part are true and part false, the words of such will
shall be viewed as words of true limitation to pass only that ob-
ject as to which all the circumstances are true.* To this effect
is a ruling as to a devise of " all my messuages situate at, in, or
near Snig Hill, which I lately purchased of the Duke of Nor-
folk," where it appeared that the testator had bought of the
duke four houses very near Snig Hill, and two at some consider-
able distance from it, and in a place bearing a different name.
1 In Miller v. Travers, 8 Bing. 252, ule," in a will, should be read as if
253; and Doe v. Hiscocks, 5 M. & W. they were " fifth schedule." Taylor's
270. Ev. § 1106. See, also, Ford v. Bat-
2 Lindgreeu v. Lindgreen, 9 Beav. ley, 23 L. J. Ch. 225; Coltman v.
363. See, also, Quennell v. Turner, Gregory, 40 L. J. 352.
13 Beav. 240; Tann v. Tann, 2 New » Taylor v. Parry, 1 M. & Gr. 623,
R. 412, per Romilly, M. R. ; and Hunt per Maule, J. See supra, § 945.
V. Tulk, 2 De Gex, M. & G. 300, in * Doe v. Bower, 3 B. & Ad. 459,
which last case the lords justices, in 460, per Parke, J. ; Morrell v. Fisher,
order to set right what appeared to 4 Ex. R. 604, per Alderson, B. See,
them to be an obvious clerical error, also, Boyle v. MulhoUand, 10 Ir. Law
held that the words, " fourth sohed- R. N. S. 150.
249
§ 1007.] THE LAW OF EVIDKNCE. [BOOK H.
The court held that the four houses only passed by the devise,
though all the six had been purchased by one conveyance, and
the testator had redeemed the land tax upon all by one contract.^
So, also, where a testator devised to A. his freehold messuage,
farm, lands, and hereditaments, in the county of B., and it ap-
peared that he had a farm in that county, consisting of a mes-
suage and 116 acres, the greater part of which was freehold, but
a small portion was leasehold for a long term of years at a pep-
per-corn rent, the court held that as the devise correctly described
the freehold, the leasehold part was not included therein, though
it was proved that this part was interspersed with and undistin-
guishable from, the freehold, and that the whole farm had always
been treated as freehold by the testator.^
§ 1006. Patent ambiguities, however, cannot generally be re-
Patent am- solved by parol ; but as to such ambiguities the vsrill
biguities must be regarded as insensible.^ Parol evidence, there-
not to be .... .
resolved fore, is inadmissible to prove what is meant by a legacy
by parol. ^^ ,^ _ „ ^ ^^ ^ ^^^^^^ ^^ ^^ ^ ^ ^„ g ^^^
§ 1007. Parol evidence is admissible to establish the ademp-
Ademption ^^^^ '^^ prepayment of a legacy. Thus, in an English
of legacy case, the son, the residuary legatee under a will, was
proved by permitted to show by parol that a legacy given by the
testator to his daughter had been partially anticipated
by him, he having given her a portion of the sura bequeathed,
stating at the same time that it was in anticipation of her
legacy.^ The same rule has been adopted in the United States.'
1 Taylor's Ev. § 1108 ; Doe v. Bow- Law Rep. Eq. 278. See Doe v. Bow-
er, 3 B. & Ad. 453 ; Pogson v. Thomas, er, 2 B. & Ad. '459, per Parke, J.
6 Bing. N. C. 337; Doe u. Ashley, 10 » Miller v. Travers, 8 Bing. 254;
Q. B. 663; Webber y. Stanley, 16 Taylor u. Richardson, 2 Drew. 16; St.
Com. B. N. S. 698; 33 L. J. C. P. Luke's Home, &c. r. Soc. for Indigent
21 7, S. C; Smith & Goddard v. Ridg- Females, 52 N. Y. 191 ; Hill v. Felton,
way, 2 H. & C. 37; S. C. in Ex. 47 Ga. 453. See supra, § 956, as to
Ch. 4 H. & G. 577; Pedley o. Dodds, definition of patent ambiguities, and
2 Law Rep. Eq. 819. see Clayton v. Lord Nugent, 13 M. &
2 Taylor's Ev. § 1108; Stone v. W. 200; Kell». Charmer, 23Beav. 195.
Greening, IS Sim. 390 ; Hall v. Fish- * Baylis v. A. J. 2 Atk. 239.
er, 1 Coll. 47; Quennell v. Turner, 13 « Clayton w. Nugent, ISM.&W.aoO.
Beav. 240; Evans v. Angell, 26 Beav. « Kirk v. Eddowes, 3 Hare, 509;
202. See, also, Gilliat v. Gilliat, 28 Ferris v. Goodburn, 27 L. J. Ch. 574;
Beav. 481; Mathews i». Mathews, 4 Taylor's Evidence, § 1048.
' Rogers v. French, 19 Ga. 316;
250
CHAP. XII.J
WILLS MODIFIED BY PAROL.
[§ 1008.
§ 1008. Parol proof of mistake is usually inadmissible to cor-
rect a will. In contracts, there is a distinction in this Paroi proof
respect, arising from the fact that a scrivener's mistake not"reoeiv-
is often the mistake of the agent of both parties, and ^l"'*-
therefore in such cases imputable to both. But in wills, the
scrivener can be in no sense the agent of the legatees or devisees
whose interests are affected by his supposed blunder, and to
them, therefore, can such blunder be in no sense imputable.
The mistake, therefore, if there be such, is one of the testator,
or of the scrivener adopted by the testator ; and to let the will be
overridden by parol proof of such mistake would be to subordi-
nate that which the testator declares to be his last will to some-
thing which he has not so sanctioned, and which passes through
the treacherous medium of parol. ^ It is true that it has been
held in England that the writer's habit of misnaming a par-
ticular person may be proved, for the purpose of sho.wing whom
he meant by a particular legatee.^ But ordinarily a testator's
Nolan V. Bolton, 25 Ga. 352 ; May v.
May, 28 Ala. 141.
1 Newburgh v. Newburgh, 5 Mad.
361 ; Hayes v. Hayes, 21 N. J. Eq.
265; Nevius v. Martin, 30 N. J. L.
465; Gaither v. Gaither, 3 Md. Ch.
158 ; Higgins v. Carlton, 28 Md. 115;
Abercrombie v. Abercrombie, 27 Ala.
489. See under Massachusetts statute,
Kamsdill v. Wentworth, 101 Mass.
125. Supra, § 954.
" Blundell u. Gladstone, 11 Sim.
467; Mostyn v. Mostyn, 5 H. of L.
Cas. 155. See K. v. Wooldale, 6 Q.
B. 549; Abbott v. Massie, 3 Ves. 148,
explained by Kolfe, B., in Clayton
V. Nugent, 13 M. & W. 204, 207.
In Lee v. Pain, 4 Hare, 251-253,
where this doctrine was applied, a
testatrix, by a codicil dated in 1836,
had bequeathed " to Mrs. and Miss
Bowden, of Hammersmith, widow and
daughter of the late Rev. Mr. Bow-
den, £200 each." These legacies were
claimed by a Mrs. Washbourne and
her daughter. It appeared in evi-
dence that Mrs. Washbourne was the
daughter of the Rev. J. Bowden, who
died in 1812, and the widow of the
Rev. D. Washbourne, a dissenting
minister at Hammersmith. Mrs. Bow-
den died in 1820, since which time no
person had lived at Hammersmith, an-
swering the description in the cod-
icil. It further appeared that the
testatrix, who was of great age, had
been intimately acquainted with the
Bowdens and the Washbournes; that
she had been in the habit of calling
Mrs. Washbourne by her maiden name
of Bowden; and that being often re-
minded of the mistake, she had always
acknowledged that she had confound-
ed the two names. Under these cir-
cumstances, Vice Chancellor Wigram
decided that the claimants were en-
titled to their respective legacies. The
rule was pushed to a perilous extreme
in Beaumont v. Fell, 2 P. Wms. 141,
where a legacy, given to Catherine
Earnley, was claimed by Gertrude
Yardley ; and it appearing that no
such person was known as Catherine
Earnley, proof was received that the
251
§ 1009.]
THE LAW OF EVIDENCE.
[book II.
mistake of fact, leading him to a provision he could not oth-
erwise have made, cannot be proved to modify such provision.^
Thus it is inadmissible to prove that a statement made as to an
advancement was a mistake,^ and to prove by parol that the
testatrix, who omitted to provide for a particular son, believed
at the time of making the will that he was dead, when he
was really alive, there being nothing in the will to indicate a
belief in such death.^ But a testator's declarations have been
admitted to show that an interlineation in a will was made after
its execution ; * and a subscribing witness may be examined to
the same effect.^ And when it is doubtful whether an instru-
ment is a deed or a will, declarations of the testator are admis-
sible to 1-esolve the doubt.^
§ 1009. Where, however, fraud or coercion is alleged in the
Fraud in concoction of a will, such fraud may be proved by
concoction pg.vol.'' To Sustain such an allegation, declarations of
oiwillmay ^ . i i i i.
be proved a testatrix, made shortly after the execution of the
will, have been received, when a foundation has been
laid showing a prior condition of mind rendering her open to
fraud and undue influence.^ Proof of undue influence is always
testator usually called the clainaant
Gatty, -svhicli might easily have been
mistaken by the scrivener who drew
the will for Katy. On this and other
similar proof, the court decided in
favor of the claimant. In this case,
as we have noticed, declarations of
the testator were admitted; but the
propriety of receiving such evidence
was doubted by Ld. Abinger in Doe
V. Hiseocks, 5 M. & W. 371, and as
an authority on that point, Beaumont
V. Fell, may be considered overruled.
In its other points it is hardly to be
reconciled witli the authorities cited
infra in this section.
1 Jackson v. Sill, H Johns. R. 201;
McAllister v. Butterfield, 81 Ind. 25;
Skipwith V. Cabell, 19 Grat. 758; Eos-
borough V. Hemphill, 5 Rich. (S. C.)
Eq. 95. See, however, Lee v. Pain,
and Beaumont i'. Fell, cited supra,
and Geer v. Winds, 4 Desau. 85.
252
2 Painter v. Painter, 18 Oh. 247.
8 Giflford V. Dyer, 2 R. I. 99.
« Doe V. Palmer, 16 Q. B. 747;
Duffy, in re, 5 Irish Eq. 506. See
Johnson v. Lyford, L. E. 1 P. & D.
546; Quick v. Quick, 3 Sw. &;Tr.442.
s Charles v. Huber, 78 Penn. St.
448.
^ Sugden v. Ld. St. Leonards, L. R.
P. D. (C. A.) 154;- White v. Hicks,
43 Barb. 64; Walston v. White, 5 Md.
297.
' Doe V. Hardy, 1 M. & Rob. 525 ;
Doe V. Allen, 8 T. R. 147; Lauglin
V. McDevitt, 63 N. Y. 213. See su-
pra, § 931.
8 Shailer v. Bumstead, 99 Mass.
112 ; Taylor's Will case, 10 Abb. (N.
Y.) Pr. N. S. 800. See Hoges' Est. 2
Brewst. 450; McKinley t'. Lamb, 56
Barb. 284; RoUwagen v. RoUwagen,
5 Thomp. & C. 402; S. C. 3 Hun, 121;
Willett t!. Porter, 42 Ind. 260; Rabb
CHAP. XII.]
WILLS MODIFIED BY PAROL.
[§ 1013.
admissible on such an issue.^ But declarations uttered long af-
terwards, in no sense part of the transaction, cannot be received
to prove fraud.2 For such purpose, unless made against the
declarant's interest, they are but hearsay.^
§ 1010. It should at the same time be remembered that as
primary proof that a testator was influenced, in making
the will, by fraud or compulsion, his declarations are Hons^oTtes-
inadmissible. In such relation they are to be regarded tator inad-
° missible to
as hearsay.* But while such declarations are not ad- prove
missible to prove the actual fact of fraud or improper compulsion
influence by another, they may be competent, to adopt proof™*"^
a distinction made by Colt, J., in a Massachusetts case
in 1868, " to establish the influence and effect of the external
acts upon the testator himself." ^ Such deo-
§ 1011. When the condition of the testator's mind, irradmia-
so far as concerns testamentary capacity, is in litiga- ^''''^ '»
•J r J ^ o prove tes-
tion, his declarations are admissible so far as bearing tator's
on such question of capacity.^ condition.
§ 1012. Hence whenever a will is attacked on the
ground that it does not exhibit the testator's real in- denoe ad-
tent, he being in disturbed mind, or under undue in- ^s^ain^'li
fluence at the time it was executed, it is admissible to "hen at^
tacked.
put in evidence his declarations in support of the ■will.'
§ 1013. It is scarcely necessary to add that a pro- probate of
bate of a will is primd facie proof of its due execu- ^i" ""'y
V. Graham, 43 Ind. 1; Lee v. Lee, 71
N. C. 139; Dennis v. Weekes, 51 Ga.
24 ; Beaubien v. Cicotte, 1 2 Micli.
459; Smith v. Fenner, 1 Gall. 170.
1 Lewis V. Mason, 109 Mass. 169;
Harvey v. Sullens, 46 Mo. 147.
" Gibson V. Gibson, 24 Mo. 227.
8 Supra, § 226.
* Provis V. Reed, 5 Bing. 435
Marston v. Roe, 8 Ad. & El. 14
Shailer v. Bumstead, 99 Mass. 113
Comstock V. Hadlyme, 8 Conn. 254
Jackson v. Kniffen, 2 Johns. 31
Waterman v. Whitney, 1 Kernan,
157.
^ Shailer v. Bumstead, 99 Mass
126.
6 Robinson v. Adams, 62 Me. 369
Shailer v. Bumstead, 99 Mass. 113
Comstock V. Hadlyme, 8 Conn. 254
Waterman u. Whitney, 1 Kernan, 157
Boylan v. Meeker, 4 Dutch. 274
Moritz V. Brough, 16 S. & R. 403
McTaggart t<. Thompson, 14 Penn
St. 149. See, however, Reel v. Reel
1 Hawks, 248; Howell v. Barden, 3
Dev. 442; Dennis v. Weekes, 51 Ga.
24; Cawthorn v. Haynes, 24 Mo. 236.
' Doe V. Shallcross, 16 Ad. &E1. N.
S.) 758; Dennison's Appeal, 29 Conn.
402; Starrett v. Douglass, 2 Yeates,
46; Neel v. Potter, 40 Penn. 484;
Roberts v. Trawick, 17 Ala. 65.
253
§ 1014.J THE LAW OF EVIDENCE. [BOOK II.
prim& tion.i It may subsequently be contested, by proof of
proof. incompetency of testator, or defective execution.^
IV. SPECIAL RULES AS TO CONTRACTS.
§ 1014. Where a written document is resorted to by the par-
ties for the expression of their conclusions after a se-
Frior con- . ^
ferences ries of conferences, siich document will be regarded as
in written expressing their final views, and as extinguishing all
contrac . Q^her parol understandings, prior or contemporaneous.
To permit evidence of prior or even of contemporaneous un-
derstandings to qualify the written document, would be to not
only substitute media peculiarly fallible, — recollections of wit-
nesses as to words, — for a medium whose accuracy the parties
affirm, but often to substitute an abandoned for an adopted con-
tract. Hence all prior conferences are regarded, unless there
be fraud, as merged, in such case, in the final document.^
1 See supra, § 811; infra, § 1278; lender v. Dinsmore, 55 N. Y. 204;
Charles v. Huber, 78 Penn. St. 448. Gage i'. Jaquetb, 1 Lans. 207 ; Cox
2 Supra, § 811. </. Bennet, 13 N. J. L. 165 ; Conoyer
s Supra, § 920; Goss v. Nugent, 5 v. Wardell, 20 N.J. Eq. 266; King v.
B. & Ad. 54 ; Adams v. Wordley, 1 Kuckman, 21 N. J. Eq.599 ; Ellmaker
M. & W. 74; Chicago v. Sheldon, 9 v. Ins. Co. 5 Penn. St. 183; Sennett
Wall. 50 ; Ins. Co. v. Lyman, 15 v. Johnson, 9 Penn. St. 335; Harbold
Wall. 664; Chadwick v. Perkins, 3 i\ Kuster, 44 Penn. St. 392; Kirk v.
Greenl. 399; City Bank v. Adams, Hartman, 63 Penn. St. 97; Tatman
45 Me. 455 ; Millett v. Marston, 62 v. Barrett, 3 Houst. 226 ; Stoddert v.
Me. 477; Wiggin v. Goodwin, 63 Me. Vestry, 2 Gill & J. 227; Wiles v. E.a.v-
389; Smith v. Higbee, 12 Vt. 113; shaw, 8 Ired. Eq. 308; Logan u. Bond,
Perkins v. Young, 16 Gray, 389; 13 Ga. 192; Cole v. Spann, 13 Ala.
Wright V. Smith, 16 Gray, 499; Dean 537; Sanford v. Howard, 29 Ala. 684;
V. Mason, 4 Conn. 428; Fitch v. Wood- Herndon v. Henderson, 41 Miss. 584;
ruff, 29 Conn. 82; Parkhurst u. Van Cocke v. Bailey, 42 Miss. 81 ; Walter
Cortland, 1 Johns. Ch. 274; Stevens v. Engler, 30 Mo. 130; Price u. Allen,
V. Cooper, 1 Johns. Ch. 425 ; Baker 9 Humph. 703 ; Savercool c. Farwell,
V. Higgins, 21 N. Y. 897; Jarvis v. 17 Mich. 308; Cincin. R. R. «. Pearce,
Palmer, 11 Paige, 650; Kelly u. Rob- 28 Ind. 502; Smith v. Dallas, 35
erts, 40 N. Y. 432 ; Delafield v. De Ind. 255 ; Emery v. Mohler, 69 111.
Grauw, 9 Bosw. 1 ; Buckley v. Bent- 221 ; Downie v. White, 12 Wise. 176;
ley, 48 Barb. 283 ; Bush v. Tilley, 49 Merriam v. Field, 24 Wise. 640; Gel-
Ibid. 599; Renard v. Sampson, 12 N. peko v. Blake, 15 Iowa, 387; Pilmer
Y. 5G1; Hallidayu. Hart, 30 Ibid. 474; v. Bank, 16 Iowa, 321. See, also,
Pollen V. Le Roy, Ibid. 549 ; Thorp Flinn v. Calow, 1 M. & Gr. 589 ;
V. Ross, 4 Keyes, 546 ; Riley v. City Chase v. Jewett, 37 Maine, 351; Ken-
of Brooklyn, 46 N. Y. 444 ; Long v. nedy v. Plank Road, 25 Penn. St.
N. Y. C. R. R. Co. 50 Ibid. 76; Col- 224.
264
CHAP. XII.J CONTRACTS MODIFIED BY PAROL. [§ 1015.
Thus it has been ruled that in an action against a married
woman for breach of a written agreement for the purchase of
land sold to her by auction, parol evidence is inadmissible that
the plaintiff requested her to bid on the property as an under-
bidder, and told her that she would not be bound to take the
property, but might if her husband desired, and that she did not
read the agreement or know its contents when she signed it.-'
So a limited warranty cannot be extended into a general war-
ranty by proof of a parol agreement to that effect prior to or at
the delivery of a deed ; ^ nor can proof be received of an oral
contemporaneous agreement by a grantor to discharge certain in-
cumbrances not created by himself ; ^ nor can proof enlarging
the area of property specifically described in a deed.*
§ 1015. The rule which has just been expressed is open to
several qualifications. The first is that a contract, -vrhen con-
which is not required by statute to be in writing, may *™':t ''
be partly expressed in writing, and partly in an un- written
written understanding between the parties ; and if so, oral, oral
Such understanding may be proved by parol.^ " Where ^oved^by
a verbal contract is entire, and a part only in part per- P*™'"
formance is reduced to writing, parol proof of the entire contract
is competent." *' So if a written agreement has been treated as
1 Faucett v. Currier, 115 Mass. 20. 2 Hilt. (N. Y.) 184; Park v. Miller,
2 Raymond v. Raymond, 10 Cush. 27 N. J. L. 338 ; Crane t'. Elizabeth.
134. Ass. 29 N. J. L. 302 ; Miller v. Fich-
" Howe u. Walker, 4 Gray, 318. thorn, 31 Penn. St. 252; Glenn v.
* Barton v. Dawes, 10 C. B. 261; Rogers, 3 Md. 312; Randall u. Turner,
Llewellyn v. Jersey, 11 M. & W. 183. 17 Ohio St. 262; Kieth u. Kerr, 1 7 Ind.
See other cases infra, § 1050. 284; Taylor v. Galland, 3 G. Greene,
'• Sheffield v. Page, 1 Sprague, 285; 17; Johnston v. McRary, 5 Jones N.
Webster u. Hodgkins, 25 N. H. 128; C. L. 369; Perry v. Hill, 68 N. C.
Linsley v. Lovely, 26 Vt. 123 ; Winn 417 ; Moss v. Green, 41 Mo. 389 ; Mo-
t). Chamberlin, 32 Vt. 318 ; Houghton bile Co. v. McMillan, 31 Ala. 711;
V. Carpenter, 40 Vt. 588 ; Hutchins Young v. Jacoway, 17 Miss. 212;
V. Hebbard, 34 N. Y. 24; Hope v. Cobb v. Wallace, 5 Coldw. 539.
Balen, 58 N. Y. 382 ; Grierson v. Ma- As to statute of frauds, see supra,
son, 1 Hun, 113; Smith v. R. R. 4' §856.
Abb. (N. Y.) App. 262 ; Wentworth « Grorer, J., Hope v. Balen, 58 N.
V. Buhler, 3 E. D. Smith, 305; Silli- Y. 382. See, also, Hutchins v. Heb-
man v. Tuttle, 45 Barb. 171 ; Potter bard, 34 N. Y. 24 ; Blossom v. Griffin,
». Hopkins, 25 Wend. 417; Breck v. 13 Ibid. 569; Barney v. Worthington,
Cole, 4 Sandf. 79; Sale <;. Darragh, 37 Ibid. 112; Frink «. Green, 6 Barb.
255
§ 1016.]
THE LAW OF EVIDENCE.
[book n.
incomplete, parol evidence of a subsequent further and fuUer
agreement may be given.^ Parol evidence is also admissible in
explanation of a contract intended to be parol, but in part ex-
pression of which a written instrument is afterward executed.^
When, also, a written contract refers to a collateral oral agree-
ment, this necessarilj'' involves proof of such agreement by parol.^
And so when two contracts are made at the same time in respect
to two distinct voyages, one contract being in writing and the
other made orally, the fact that the one is in writing does not
exclude proof of the other by parol.*
§ 1016. Another exception to the rule before us is based on
Oral ac- *^® fact, that to make a written contract there must be
ceptance a written assent by both parties.^ Where, therefore, a
offer makes written proposal is accepted by parol, this is an oral
tract, and Contract and may be proved by parol.® Hence a.tele-
^ove/b7 gram accepted by parol may be modified, so far as con-
ordeUv-" cerns its contractual effect, by parol.' And the inci-
'"■y- dents of execution even of a bilateral contract may be
sustained by parol proof. Thus parol proof is admissible to es-
tablish the delivery of a deed.* Ordinarily, however, the dehv-
455 ; Barry v. Ransom, 12 N. T. 462 ;
Batterman v. Pierce, 3 Hill, 171 ;
Chester v. Bank o£ Kingston, 16 N.
Y. 336.
^ Johnson v. Appleby, L. K. 9 C.
P. 158 ; 22 W. R. 515; Courtenay v.
Fuller, 65 Me. 156.
^ " Where the parties have reduced
an agreement to writing, the wTiting
is supposed to contain all the agree-
ment, and is the only evidence of it ;
and all prior or contemporaneous dec-
larations and negotiations between the
parties are excluded as evidence of the
agreement, or any part of it. But
here the agreement was not reduced to
writing. It was intended by the par-
ties to rest in parol, and the written
instruments were subsequently exe-
cuted in part execution of the parol
agreement, and not for the purpose of
putting that agreement in writing. It
is well settled that a written instru-
256
ment, thus executed, does not super-
sede a prior parol agreement." Earl,
C. J., in Barker v. Bradley, 42 N. Y.
319, citing Renard v. Sampson, 12 N.
Y. 561 ; Thomas v. Dickinson, 2 Ker-
nan, 364 ; Hutchins v. Hebbard, 34
N. Y. 24 ; Bowen v. Bell, 20 Johns.
340 ; Johnson v. Hathorn, 3 Keyes,
126; McCuUough v. Girard, 4 Wash.
C. C. R. 289 ; Mowatt v. Ld. Londes-
^orough, 3 E. & B. 307.
' Ruggles V. Swanwick, 6 Minn.
526.
* Page V. Sheffield, 2 Curt. 377.
s Thornton v. Charles, 9 M. & W.
802; Heyman r. Neale, 2 Camp. 337;
Sievewright v. Archibald, 17 Q. B.
115.
« Pacific Works v. Newhall, 34
Conn. 67.
' Beach ,;. R. R. 37 N. Y. 457.
8 Armstrong v. McCoy, 8 Ohio,
128.
CHAP. XII.]
CONTRACTS MODIFIED BY PAROL.
[§ 1017.
ery of a deed is presumed from the facts of signature, delivery,
and transfer of possession.^
§ 1017. A written contract, aside from the prescriptions of
-the statute of frauds,^ may be rescinded by parol, and a Eescission
new agreement, written or unwritten, adopted and ex- tract°and
ecuted in the place of that which has been rescinded. tbn^'o"an.
When such rescission, there having been a sufficient o"*"' ™"y
. . 1-1 "* proved
consideration, as proved m such a way as to establish by parol,
the fact beyond reasonable doubt, courts of equity will refuse to
permit the rescinded contract to be enforced ; and the doctrine
of chancery in this respect is applied by such courts of common
law as adopt equity remedies, and, when such is the practice,
through common law forms. A party, however, seeking to re-
scind a contract, must be free from wrong on his own part, must
move promptly, must offer to put the other party in statu quo,
and must show by strong and clear evidence, either accident,
mistake, or fraud, to make such rescission equitable.^ In other
I Infra, § 1314.
» See supra, §§ 901-2.
» Goss V. Nugent, 2 B. & Ad. 58;
Price V. Dyer, 17 Ves. 356 ; Warner
V. Daniels, 1 Wood. & M. 90 ; Mar-
shall V. Baker, 19 Me. 402; Medomak
Bk. V. Curtis, 24 Me. 36 ; Brown v. Hol-
yoke, 53 Me. 9 ; Buel v. Miller, 4 N.
H. 196 ; Wheeden v. Fiske, 50 N. H.
125; Sanborn t>. Batchelder, 51 N. H.
426; Manahan v. Noyes, 52 N. H.
232; Flanders w.Fay, 40 Vt. 316; Cut-
ler V. Smith, 43 Vt. 577; Foster v.
Purdy, 5 Mete. 442; Priest v. Wheel-
er, 101 Mass. 479; Russell v. Barry,
115 Mass. 300; Cutter v. Cochrane,
116 Mass. 408 ; Connelly v. Devoe, 37
Conn. 570; Dearborn v. Cross, 7 Cow.
48; Field v. Holbrook, 6 Duer, 597;
Parker v. Syracuse, 31 N. Y. 376;
Comstocku. Johnson, 46 N. Y. 615;
Murray v. Harway, 56 N. Y. 337;
Cook II. Cole, 6 N. J. Eq. 522 ; Howell
V. Sebring, 14 N. J. Eq. 84 ; Bell v.
Hartman, 9 Phil. R. 1 ; Graham v.
Pancoast, 30 Penn. St. 89; Rocka-
fellow V. Baker, 41 Penn. St. 319;
VOL. II, 17
Wilson V. Getty, 67 Penn. St. 266 ; Ma-
lone V. Dougherty, 79 Penn. St. 48 ;
Creamer v. Stephenson, 15 Md. 211 ;
Cain V. Guthrie, 8 Blackf. 409 ; Stew-
art V. Ludwick, 29 Ind. 230; Hume v.
Taylor, 63 III. 43 ; Kirby v. Harrison,
2 Oh. St. 326; Eynear v. Neilin, 3 G.
Greene, 310; Mather w. Butler, 28 lo.
253 ; Hubbell v. Beam, 31 Iowa, 289;
Burge V. R. R. 32 Iowa, 101 ; Van Trott
V. Wiese, 36 Wise. 439 ; Murphy v. Dun-
ning, 30 Wise. 296 ; Esham v. Lamar,
10 B. Mon. 43 ; Lee v. Lee, 2 Duv.
134; Holtzclaw v. Blackerby, 9 Bush,
40; Phelps v. Seely, 22 Grat. 592;
Prothro v. Smith, 6 Rich. (S. C.) Eq.
324; Murray v. King, 7 Ired. (Eq.)
19; Johnston v. Worthy, 17 Ga. 420;
Lane v. Latimer, 41 Ga. 171; Dever
V. Akin, 40 Ga. 423; Doll v. Kath-
man, 23 La. An. 486; Commer. Bk. v.
Lewis, 21 Miss. 226; Henning v. Ins.
Co. 47 Mo. 425; Bailey v. Smock, 61
Mo. 213 ; Paris v. Haley, 61 Mo. 453 ;
Walker v. Wheatly, 2 Humph. 119;
Salmon v, Hoffman, 2 Cal. 138; Scan-
Ian V. Gillan, 5 Cal. 182 ; Barfield v.
257
§ 1017.] THE LAW OF EVIDENCE. [BOOK H.
words, parol evidence is admissible, so is the position stated by
Price, 40 Cal. 535; Waymack v. HeU-
man, 26 Ark. 449. See Goucher v.
Martin, 9 Watts, 106.
In Grymes v. Sanders, Sup. Ct. U.
S. Oct. T. 1876 (Alb. L. J. Nov.
18, 1876), the following rules are
given : —
" A mistake as to a matter of fact,
to warrant relief in equity, must be
material, and the fact must be such
that it animated and controlled the
conduct of the party. It must go to
the essence of the object in view, and
not be merely incidental. The court
must be satisfied that but for the mis-
take the complainant would not have
assumed the obligation from which he
seeks to be relieved. Kerr on Mis-
take & Fraud, 408; Trigg v. Read,
5 Humph. 529; Jennings v. Brough-
ton, 17 Beav. 541; Thompson v. Jack-
son, 3 Rand. 507; Harrod's Heirs v.
Cowan, Hardin's Rep. 543; Hill v.
Bush, 19 Ark. 522; Jouzan v. Toul-
min, 9 Ala. 662
" Where a party desires to rescind
upon the ground of mistake or fraud,
he must, upon the discovery of the
facts, at once announce his purpose
and adhere to it. If he be silent and
continue to treat the property as his
own, he will be held to have waived
the objection and will be conclusively
bound by the contract, as if the mis-
take or fraud had not occurred. He
is not permitted to play fast and loose.
Delay and vacillation are fatal to the
right which had before subsisted.
These remarks are peculiarly applica-
ble to speculative property like that
here in question, which is liable to
large and constant fluctuations in
value. Thomas v. Bartow, 48 N. Y.
200; Flint v. Wood, 9 Hare, 622;
Jennings v. Broughton, 5 De G., M. &
G. 139; Lloyd ». Brewster, 4 Paige,
537; Saratoga & S. R. R. Co. v. Rowe,
258
24 Wend. 74 ; Minturn v. Main, 8 Seld.
220; 7 Rob. Prac. Ch. 25, § 2, p. 432;
Campbell v. Fleming, 1 Adolph. & E.
41; Sugd. on Vend. 14th ed. 335; Di-
man v. Providence, W. & B. R. R. Co.
5 R. I. 130.
" A court of equity is always re-
luctant to rescind, unless the parties
can be put back in statu quo. If this
cannot be done, it will give such relief
only where the clearest and strongest
equity imperatively demands it. Here
the appellant received the money paid
on the contract in entire good faith.
He parted with it before he was aware
of the claim of the appellees, and can-
not conveniently restore it. The im-
perfect and abortive exploration made
by Bowman has injured the credit of
the property. Times have since
changed. There is less demand for
such property, and it has fallen large-
ly in market value. Under these cir-
cumstances, the loss ought not to be
borne by the appellant. Hunt v. Silk,
5 East, 452; Minturn v. Main, 3 Seld.
227 ; Okill v. Whittaker, 2 Phill. 340;
Brisbane i'. Davies, 5 Taunt. 144; An-
drews I). Hancock, 1 Brod. & Bing.
37; Skyring v. Greenwood, 4 Barn. &
Cr. 289 ; Jennings v. Broughton, 5
De Gex, M. & G. 139. •
" The parties, in dealing with the
property in question, stood upon a
footing of equality. They judged
and acted respectively for themselves.
The contract was deliberately entered
into on both sides. The appellant
guaranteed the title, and nothing
more. The appellees assumed the
payment of the purchase money.
They assumed no other liability.
There was neither obligation nor lia-
bility on either side beyond what was
expressly stipulated. If the property
had proved unexpectedly to be of in-
estimable value, the appellant could
CHAP. XII.J CONTRACTS MODIFIED BY PAROL.
[§ 1017.
Mr. Stephen,! to prove " the existence of any subsequent oral
agreement to rescind or modify any such contract, grant, or dis-
position of property, provided that such agreement is not invalid
under the statute of frauds, or otherwise." So parol evidence is
admissible to prove that a rescinded contract has been rein-
stated.2
It is true that a chancellor will not pronounce a debt to be
released in ^quity unless released in law, and that it is held in
equity that mere voluntary declarations indicating the intention
of a creditor to forgive or release a debt, if they are not evidence
of a release at law, do not constitute a release in equity.^ But
there may be considerations which would prevent the debt from
being enforced in a court of equity, although it might be sub-
sisting at law.* Hence where a voluntary declaration by a cred-
itor has been acted upon by the debtor, the former will be bound
to make his representation good.^ •
It need scarcely be added that parol evidence is admissible to
show that after signing a document the defendant assented to cer-
tain alterations made by the plaintiff before it was signed by the
have no further or other claim. If en-
tirely worthless, the appellees assumed
the risk, and must take the conse-
quences. Segur V. Tingley, II Conn.
142; Haywood v. Cope, 25 Beav. 140;
Jennings v. Broughton, 17 Ibid. 232;
Atwood V. Small, 6 Clark & Fin. 497;
Marvin v. Bennett, 8 Paige, 321 ;
Thomas v. Bartow, 48 N. Y. 1 98 ; Hun-
ter V. Goudy, 1 Hamm. 451 ; Halls
V. Thompson, 1 Sm. & M. 481."
While extrinsic evidence is inad-
missible to contradict or vary a writ-
ten instrument, " it is impossible to
lay down as a general rule that ex-
trinsic oral evidence is inadmissible to
prove either the entire or partial dis-
solution of the original contract, or
the substitution or annexation of a
new verbal contract. But wherever
it is attempted to superadd an oral to
a written contract, there must be clear
evidence of the actual words used."
Per James, L. J., Thomson v. Simp-
son, 18 W. R. 1091.
On Goss V. Nugent, supra, Mr. Ste-
phen thus comments : " It was held in
effect in Goss v. Lord Nugent, that if
by reason of the statute of firauds the
substituted contract could not be en-
forced, it would not have the effect of
waiving part of the original contract;
but it seems the better opinion that
a verbal (oral) rescission of a contract
good under the statute of frauds would
be good. See Noble v. Ward, L. E.
2 Ex. 135; and Pollock on Contracts,
411, note (6)." Stephen's Evidence,
note xxxiii. to art. 90.
1 Evidence, art. 90.
0 Flynn v. McKeon, 6 Duer, 203,
and cases above stated.
8 Cross V. Sprigg, 6 Hare, 552.
* Per Turner, L. J., Taylor w. Man-
ners, L. E. 1 Ch. 56.
* Yeomans v. Williams, L. E. 1 Eq.
184; 38 L. J. Ch. 283 ; Powell's Evi-
dence, 4th ed. 407,
259
§ 1018.] THE LAW OF EVIDENCE. [BOOK H.
latter, for such evidence does not vary the contract, but only proves
the condition of the document when it first became a contract.i
§ 1018. No doubt by the strict rule of English common law.
Exception! an instrument under seal cannot be thus rescinded by
mMngs^'" parol.2 Hence it has been ruled that a parol discharge
under seal, cannot be Set up to bar an action on a covenant for
non-payment of money.^ The same conclusion was reached in a
case where an action had been brought by a landlord, against his
tenant, on a covenant by the la,tter to yield up, at the expiration
of the term, all buildings erected during the tenancy ; the defend-
ant setting up as a defence an agreement between the parties,
that, if the defendant buUt a greenhouse on the premises, he
should be at liberty to remove it.* It has been held at common
law to make no difference whether the agreement in discharge
of the deed be in writing or merely oral, or whether it be
executory or executed ; and, ' therefore, if an act is required by
deed to be done within a certain time, evidence cannot be given
to show that the period was extended by some instrument not
under seal, and that the act was performed within the time so
extended.^ At the same time, when there has been an executed
parol rescission of a contract under seal, the rescission being for
an adequate consideration, equity will not permit the rescinded
contract to be enforced. The obligee on the rescinded contract
has, by his acts, estopped himself from enforcing such contract.^
1 Stewart v. Eddowes, L. K. 9 C. Iron "Works Co. u. The Roy. Mail St.
P. 311; 43 L. J. C. P. 204. Supra, § Packet Co. IS Com. B. (N. S.) 358.
624. * "West V. Blakeway, 2 M. & Gr.
' Fowell t). Forrest, 2 Wms. Saund. 729 ; 3 Scott N. R. 199, S. C. But
47 ff, 47 gg; Harris v. Goodwyn, 2 see Cort v. Ambergate, &c. Ry. Co.
M. & Gr. 405; 2 Scott N. R. 459, S. 17 Q. B. 127, 145, 146.
C; Doe V. Gladwin, 6 Q. B. 953, » Gwynne w. Davy, 1 M. & Gr. 857,
962; Rawlinson v. Clarke, 14 M. & 871, per Tindal, C. J.; Littler ». Hol-
"W. 187, 192; Miller u. "Washburn, land, 3 T. R. 590. See Nash v. Arm-
117 Mass. 871. See, however, Brook- strong, 10 C. B. (N. S.) 259. See,
shire v. Brookshire, 8 Ired. L. 74 ; Pick- also, Albert v. The Grosvenor Invest.
ler V. State, 18 Ind. 266. Co. L. R. 3 Q. B. 123; and 8 B. & S.
» Rogers w. Payne, 2 "Wils. 376, rec- 664, S. C. These cases, however, Mr.
ognized in "West v. Blakeway, 2 M. Taylor queries, § 1043.
& Gr. 751; Cordwent «. Hunt, 8 « Yeomans w. Williams, L. B. 1 Eq-
Taunt. 596. See Spence v. Healey, 184; Gwynne v. Davy, 1 M. & Gr.
8 Ex. R. 668; M. of Berwick v. Os- 868, per Tindal, C. J.; Leathe v. Bul-
wald, 1 E. & B. 295 ; The Thames lard, 8 Gray, 546; Whitcher v. Shat-
260
CHAP. XII.] CONTRACTS MODIFIED BY PAROL. [§ 1019.
§ 1019. Courts of equity having jurisdiction, as we have seen,
to rescind contracts on ground of mistake or fraud, it is p^^g^ ^^_
a necessary incident of this iurisdiction that virhen a dencead-
• 1 Tf.li • missible to
contract is shown to have been modified by the parties, reform a
and when one of the parties improperly (with fraud ground of
either express or imphed) seeks to enforce the original '^*'"^'
contract in defiance of such modification, he should be re-
strained. But equity does not stop with thus precluding the
enforcement of a contract so modified. Supposing concurrent
mistake, surprise, or fraud to be demonstrated, the court will re-
form such a contract, so as to make it what was intended by the
parties ; and the remedies thus given in chancery will be applied
by common law courts administering equity through common law
forms, if the statute of frauds does not interpose.^ Parol evidence
is admissible to support the allegations made in such case of mis-
take, surprise, or fraud. The remedy, however, is applied reluc-
tantly and cautiously, and only on strong proof that the reforma-
tion was one intended by the parties at the execution of the
contract, and was prevented only by mutual mistake, surprise, or
fraud. A party seeking this remedy, also, must be himself
free from blame, and must be ready to put the other party in
statu quo? Thus parol evidence has been held admissible to
tuck, 3 Allen, 319; Dearborn v. Cross, 232 ; Rhodes v. Farmer, 17 How. 467 ;
7 Cow. 48; Hope w. Balen, 58 N. Y. Selden v. Myers, 20 How. 506; Oli-
380; Shughart u. Moore, 78 Penn. St. ver v. Ins. Co. 2 Curt. C. C. 277;
469; Sowers v. Earnhart, 64 N. C. Marshall v. Baker, 19 Me. 402 ; Me-
96; and see cases cited supra, § 1017, domak Bk. u. Curtis, 24 Me. 36 ; Brown
and infra, § 1019. v. Holyoke, 53 Me. 9; Buel v. Miller,
1 Supra, § 902. 4 N. H. 196; Lyman v. Little, 15 Vt.
= Sugd. Vend. & P. 8th Am. ed. 576 ; Mallory v. Leach, 35 Vt. 156 ;
262; Kerr on Fraud & Mist. 423; Flanders v. Fay, 40 Vt. 316; Cutler
Price V. Dyer, 17 Ves. 356 ; Fowler v. v. Smith, 43 Vt. 577; Foster v. Pur-
Fowler, 4DeG. & J. 265; Mortimer dy, 5 Mete. 442; Bruce v. Bonney,
V. Shortall, 2 Dr. & War. 363; Fil- 12 Gray, 107; Priest w. Wheeler, 101
mer v. Gott, 4 Br. Pr. C. 230 ; Rob- Mass. 479 ; Glass v. Hulbert, 102 Mass.
inson v. Vernon, 7 C. B. N. S. 231 ; 24; Stockbridge v. Hudson, 102 Mass.
Bold II. Hutchinson, 5 De G., M. & 45; Russell v. Barry, 115 Mass. 300;
6. 558; Bloomer v. Spittle, L. R. 13 Diman v. R. R. 5 R. L 130; Whea-
Eq. 427; Barwick v. English Joint ton v. Wheaton, 19 Conn. 96 ; Brain-
Stock Bk. L. R. 2 Ex. 259; Swift v. erd v. Brainerd, 15 Conn. 575 ; Blake-
Winterbotham, L. R. 8 Q. B. 244; man v. Blakeman, 39 Conn. 320; Gil-
West Bk. V. Addie, L. R. 1 H. L. Sc. lespie v. Moon, 2 Johns. Ch. 596 ;
148; Van Nesstj. Washington, 4 Pet. Keisselbrack v. Livingston, 4 Johns.
261
§ 1019.]
THE LAW OF EVIDENCE.
[book n.
show that a bond, payable on its face in current funds, was, by
Ch. 144; Dorr v. Munsell, 13 Johns.
K. 431; Gilchrist v. Cunningham, 8
Wend. 641 ; Coles v. Bowne, 10
Paige, 526; Weniple v. Stewart, 22
Barb. 154; Kent v. Manchester, 29
Barb. 595; New York Ice Co. v. Ins.
Co. 31 Barb. 72 ; Bush v. Tilley, 49
Barb. 599 ; Cady v. Potter, 55 Barb.
463; Gillett !'. Borden, 6 Lans. 219;
Leavitt v. Palmer, 3 Comst. 19 ; Pitch-
er V. Hennessey, 48 N. Y. 415; Wheel-
er V. Kirtland, 23 N. J. Eq. 13 ;
Wager v. Chew, 15 Penn. St. 323;
Eeitenbaugh v. Ludwick, 31 Penn. St.
131; Bait. St. Co. v. Brown, 54 Penn.
St. 77 ; Horn v. Brooks, 61 Penn. St.
407; Coughenour v. Suhre, 71 Penn.
St. 462 ; Huss v. Morris, 63 Penn. St.
367; Martin v. Behrens, 67 Penn. 462;
Whelen's Appeal, 70 Penn. St. 410;
Wharton v. Douglass, 76 Penn. St.
273; Hall j). Clagett, 2 Md. Ch. 151;
Farrell v. Bean, 10 Md. 368; Stair
V. Bk. 31 Md. 254 ; Boyce v. Wilson,
32 Md. 1 22 ; Kearney v. Sascer, 3 7 Md.
264; Starke w. Littlepage, 4 Rand. 368;
White V. Denman, 16 Oh. 59; Web-
ster V. Harris, 16 Oh. 490; City R. R.
V. Veeder, 17 Oh. 385; Worden v.
Williams; 24 111. 64; Hunter v. Bilyeu,
30 111. 228 ; Cleary v. Babcock, 41 111.
271; Fleming v. McHale, 47 111. 282;
Miller i;. Price, 42 111.404; Smith w.
Wright, 49 111. 403; Keith v. Ins. Co.
52 m. 518; Parker i>. Benjamin, 58
111. 255; Moore v. Munn, 69 111. 591;
Linn v. Barkey, 7 Ind. 69 ; Morris v.
Whitmore, 27 Ind. 418; Wray v.
Wray, 32 Ind. 126; Monroe v. Skel-
ton, 36 Ind. 302 ; Free v. Meikel, 39
Ind. 818 ; Cain v. Hunt, 41 Ind. 466;
Goodell V. Labadie, 19 Mich. 88 ;
Beers v. Beers, 22 Mich. 42; Hunt v.
Carr, 8 G. Greene, 581 ; Longhurst v.
Ins. Co. 19 Iowa 364 ; Barthell v. Rod-
erick, 34 Iowa, 517; Van Dusen u. Par-
ley, 40 Iowa, 170; Mather u. Butler,
262
28 Iowa, 253; Lake v. Meacham, 13
Wise. 355 ; Smith v. Jordan, 13 Minn.
264; Guernsey v. Ins. Co. 17 Minn.
104; McCurdy v. Breathitt, 5 T. B.
Monr. 232 ; Inskoe v. Proctor, 6 T.
B. Monr. Jll; Anderson o. Hutche-
son, 4 Litt. (Ky.) 126; Coger u. Mc-
Gee, 2 Bibb, 321; Harrison v. How-
ard, 1 Ired. Eq. 407; Potter v. Ever-
itt, 7 Ired. Eq. 152 ; Newsom v. Buf-
ferlow, 1 Dev. Eq. 379 ; Peebles v.
Horton, 64 N. C. 374; Ferguson v.
Haas, 64 N. C. 772; Gibson v. Watts,
1 McCord Eq. 490 ; Blakely w. Hamp-
ton, 3 McCord, 469; Trout v. Good-
man, 7 Ga. 383 ; Reese v. Wyman, 9 Ga.
430; Wyche v. Green, 11 Ga. 159;
Ward V. Camp, 28 Ga. 74; Hamilton
V. Conyers, 28 Ga. 276; Mitchell v.
Mitchell, '40 Ga. 11; Dever v. Akin,
40 Ga. 423; Lane w. Latimer, 41 Ga.
171 ; Alston v. Wingfield, 53 Ga. 18;
O'Neal V. Teague, 8 Ala. 345; Clopton
V. Martin, U Ala. 187; Lockhart i\
Cameron, 29 Ala. 355 ; Betts v. Gunn,
31 Ala. 219; Barrell v. Hanrick, 42
Ala. 60; Johnson v. Crutcher, 48 A .
368 ; Harkins' Succession, 2 La. An.
923; Angomar v. Wilson, 12 La. An.
857; Summers v. U. S. Ins. Co. 13 La.
An. 504 ; Davis v. Stern, 15 La. An.
177; Cox 17. King, 20 La. An. 209;
Willis V. Kerr, 21 La. An. 749; Mosby
V. Wall, 23 Miss. 81 ; Gray v. Roden,
24 Miss. 667; Leitensdorfer u.Delphy,
15 Mo. 160; Hook v. Craighead, 32
Mo. 405; Tesson v. Ins. Co. 40 Mo. 33;
Campbell i>. Johnson, 44 Mo. 383;
Thomas v. Wheeler, 47 Mo. 363; Ken-
ning V. Ins. Co. 47 Mo. 425; Schwear
V. Haupt, 49 Mo. 225 ; Exchange
Bank v. Russell, 50 Mo. 531; Pier-
son V. McCahill, 21 Cal. 122; Case v.
Codding, 88 Cal. 191 ; Price v. Reeves,
38 Cal. 457; Gerdes «. Moody, 41
Cal. 335; Murray u.Dake, 46 Cal. 644;
Taylor v. Moore, 23 Ark. 408; Wil-
CHAP. XII.] CONTRACTS MODIFIED BY PAROL. [§ 1019.
an agreement made coincidently with its execution, made payable
liamson v. Simpson, 16 Tex. 436. See
Mahaw. Ins. Co. infra, § 1172.
The Pennsylvania practice is thus
succinctly stated: " The principles
which govern the admission of parol
evidence affecting written instruments
are well established. It may be re-
ceived to explain and define the sub-
ject matter of a written agreement;
Barnhart v. Riddle, 5 Casey, 92 ; Al-
dridge v. Eshleman, 10 Wright, 420 ;
Gould V. Lee, 5 P. F. Smith, 99 ; to
prove a consideration not mentioned
in the deed, provided it be not incon-
sistent with the consideration ex-
pressed in it ; Lewis v. Brewster, 7
P. F. Smith, 410; to establish a trust;
Cozens V. Stevenson, 5 S. & K. 421 ;
to rebut a presumption or equity;
Bank v. Fordyce, 9 Barr, 275 ; Mus-
selman v. Stoner, 7 Casey, 265 ; to al-
ter the legal operation of an instru-
ment where it contradicts nothing ex-
pressed in the writing; Chalfant v.
Williams, 11 Casey, 212; to explain
a latent ambiguity ; McDermot v. U.
S. Ins. Co. 3 S. & R. 604 ; Iddings
V. Iddings, 7 Ibid. Ill ; and to supply
deficiencies in the written agreement ;
Miller V. Fichthorn, 7 Casey, 252;
Chalfant v. Williams, supra; but, as
a general rule, it is inadmissible to
contradict or vary the terms of a
written instrument. Hain v. Kalbach,
14 S. 8e R. 159 ; Barnhart v. Riddle,
supra; Miller v. Fichthorn, supra;
Harbold v. Kuster, 8 Wright, 392;
Lloyd V. Farrell, 12 Ibid. 73 ; Ans-
pach V. Bast, 2 P. P. Smith, 356. In
cases of fraud, accident, or mistake,
the rule is different. Where equity
would set aside or reform the instru-
ment on either of these grounds, parol
evidence is admissible to contradict
or vary the terms of the agreement
as written. Christ v. Diffenbach, 1 S.
& R. 464 ; Iddings v. Iddings, 7 Ibid.
HI ; Miller v. Henderson, 1 0 Ibid. 290 ;
Parke v. Chadwick, 8 W. & S. 96 ;
Clark V. Partridge, 2 Barr, 13 ; Ren-
shaw V. Gans, 7 Ibid. 117 ; Rearich v.
Swinehart, 1 Jones, 233. But the evi-
dence of fraud and mistake ought to
be of what occurred at the execution
of the agreement, and should be clear,
precise, and indubitable ; Stine v.
Sherk, 1 W. & S. 195 ; otherwise it
should be withdrawn from the jury ;
Miller v. Smith, 9 Casey, 386. Here
there is no allegation in either affidavit
that the defendants were induced to
execute the lease on the faith of the
alleged parol agreement, or that it was
omitted from the lease by fraud or mis-
take. Being incapable of proof, it is
the same as if it had never been made,
and therefore it constitutes no defence
to the action. Hill v. Gaw, 4 Barr, 493.
Where parties, without, any fraud or
mistake, have deliberately put their
engagements in writing, the law de-
clares the writing to be not only the
best, but the only, evidence of their
agreement, and we are not disposed to
relax the rule. It has been found to
be a wholesome one ; and now that
parties are allowed to testify in their
own behalf, the necessity of adhering
strictly to it is all the more impera-
tive." Williams, J., Martin «. Berens,
67 Penn. St. 462.
In Kostenbaden v. Peters, before the
supreme court of Pennsylvania, in
1856, 2 Weekly Notes, 531, the suit
was trespass for occupying and cul-
tivating a strip of land. The defend-
ant put in evidence a deed from the
plaintiff for a tract of land, the boun-
daries of which included the land in
dispute, though the courses and dis-
tances did not. The plaintiff then
offered to prove that when the deed
was drawn she refused to sign it ; and
the distances were then numbered, and
263
§ 1019.]
THE LAW OF EVIDENCE.
[book II.
m
CoBfederate currency, if paid before maturity ; ^ and to insert
the parties went to the ground and
measured the quantity of land called
for by the new distances, and which did
not include the land in dispute ; and
that the words "more or less" after
the quantity of acres in the deed were
then stricken out, and A. signed the
deed. It was held by the supreme
court (reversing the judgment of the
court below), that this evidence should
have been admitted.
"The English rule," said Paxson,
J., in giving the opinion of the court,
"that parol evidence is inadmissible
to vary the terms of a written instru-
ment, does not exist in this state. A
number of authorities settle the doc-
trine that in cases of fraud or mistake
as to the material facts, parol evidence
of what occurred at the execution of
the writing is competent to explain
the real meaning of the parties. As
was said by Justice Woodward, in
Chalfant u. Williams, H Casey, 212 :
' We permit a deed absolute on its
face to be proved a mortgage ; we re-
ceive parol evidence to rebut a pre-
sumption or an equity ; to supply de-
ficiencies in the written agreement;
to explain ambiguity in the subject
matter of writings ; to prevent frauds,
and to correct mistakes.' To the same
point are Dinkle v. Marshall, 3 Bin.
587; Woods v. Wallace, 10 Harris,
171; Bank v. Fordyce, 9 Barr, 279;
Rearich v. Swinehart, 1 Jones, 238 ;
Barnhart v. Riddle, 5 Casey, 92 ; Mus-
selman v. Stoner, 7 Casey, 270. Was
there such a mistake in the deed from
the plaintiff to Abraham Dersham as
would justify the admission of parol
evidence to reform it ? This is the
important question raised by this rec-
ord. We think it was clearly com-
petent to show the tract of land as
designated by the monuments on the
ground, and that there was a mis-
take or misapprehension on the part
of the plaintiff in signing the deed
with the call for the Bitting corner.
Nor would the fact that the deed was
read over to her affect her right to
have it reformed, if, in point of fact, a
mistake had been made. Such fact
might have weight with the jury. All
we decide now is, that the evidence
should have been submitted to them
for their consideration. This disposes
of the first assignment. From what
has been said it will be apparent that
the evidence referred to in the second,
third, and fourth assignments ought
to have been received. The plaintiff
is entitled to have this judgment re-
versed. Whether it will avail her in
view of her own distinct evidence, that
the defendant was in possession of
the locus in quo at the time of the
commission of the alleged trespass, is
more than questionable." See, also,
Beck V. Garrison, 1 Weekly Notes,
309.
In another case, it is said : —
"Nothing is better settled in this
state than that not only can the am-
biguities of a written instrument be
explained by parol, but it may in the
same manner be varied, added to, or
even contradicted, where it is shown
that but for the oral stipulations made
at the time, the party affected would
not have executed it. The authorities
for, as well as the reasons given in
support of this doctrine, so abound in
our books that to cite the former, or to
restate the latter, would be but a waste
of time. But, it is said, this corpora-
tion was not bound by the declara-
tions of its agents, they having ex-
ceeded their authority, and hence it
1 Meredith i>. Salmon, 21 Grat. 762.
264
CHAP. XII.J CONTRACTS MODIFIED BY PAEOL. [§ 1021.
the words "with interest " in an agreement respecting the pur-
chase money of real estate. ^ So, where the evidence is clear and
unequivocal, the court may insert the penalty in a bond, where
this was omitted by mutual mistake, and where an effort is made
fraudulently to take advantage of the omission.^ But it must
always be kept in mind that the party calling for the relief must
be himself ready to do equity ; ^ and must be free from any
laches on his part.* A fortiori, he will not be aided if he himself
is implicated in the fraud. Thus one party cannot as against
the other party set up that the writing was meant by both parties
as a fraud against creditors.^
§ 1020. Deeds, as well as other contracts, may be reformed
under the limitations specified above. ^ It should at the same
time be remembered that the party seeking to reform a deed,
in a specific particular, " cannot introduce parol evidence of an
original parol contract, or terms or stipulations at variance with
the other provisions of the written instrument, as to which no
fraud, mistake, or surprise, is alleged." ^
§ 1021. Courts of equity, and courts of law with equity
powers, in cases also of concurrent mistake (e. g. where g^ ^^ ^^
the common agent of both parties made a mistake in mistake.
was under no legal obligation to fulfil * Gump's Appeal, 65 Penn. St.
their undertakings. Grant this to be 476.
so; but how then can it hold the de- ^ State v. Frank, 51 Mo. 98. See
fendant to his part of the covenant V Prior D.Williams, 3 Abb. (N. T.) App.
This plea would answer an excellent 624. See Grymes v. Sanders, Sup.
purpose were Caley seeking to enforce Ct. U. S. Oct. T. 1876 (Alb. L. J.
the contract against the company; but Nov. 18, 1876, 342), quoted supra, §
it so happens that the stick is in the 1017.
other hand. ' If one party be not ° Supra, § 932.
bound, neither is the other.' Strong, * Ibid.
J., in the case of The Railroad Co. ' Conner v. Carpenter, 28 Vt. 237.
V. Stewart, 5 Wr. 59. In this respect ° See cases cited in last section, and
a corporation differs nothing from a Loss v. Obry, 22 N. J. Eq. 52; Coale
natural person; if it would enforce the v. Merryman, 35 Md. 382; Brown v.
contracts of its agents it must first Molyneux, 21 Grat. 539; Hutson v.
agree to adopt and be bound by them. Furnas, 31 Iowa, 154; Van Donge v.
In the foregoing we have discussed all Van Donge, 23 Mich. 321 ; Adair v.
the exceptions which we deem mate- McDonald, 42 Ga. 506 ; Barfield v.
rial or well taken, the rest are dis- Price, 40 Cal. 535.
missed without further comment." ' McAllister, J., in Emery j). Moh-
Gordon, J., Caley v. R. R. 2 Weekly ler, 69 111. 227, citing 1 Sugd. on Vend.
Notes of Cases, 316. & P. 161.
265
§ 1021.]
THE LAW OF EVIDENCE.
[book n.
engrossing an instrument, or where the instrument was concocted
on the basis of a mutual misconception of fact), may refuse
to permit such contracts to be enforced, or may admit proof of
such mistake as a defence to a suit on the contract. In such case
the party seeking to take advantage of the blunder is virtually
guilty of fraud, which will be checked under the limitations
already prescribed.-^ Even an erroneous execution, leading to
an erroneous sheriff's title, may be thus corrected.^ The quali-
fication obtaining in the English chancery, to the effect that
while relief of this class will be granted to a defendant against
whom a bill for specific performance is brought, it will be re-
fused to a plaintiff seeking execution of a reformed agreement, is
not generally recognized in the United States.^
A contract which the parties agreed at the time to treat as of
moral and not of legal obligation, equity will treat as a nullity, a
clear case being shown.*
1 Supra, § 1019; Fenwick v. Bruflf,
1 Mc Arthur, 107; Peterson v. Grover,
20 Me. 363; Nat. Bk. v. Ins. Co. 62
Me. 519; Paige v. Sherman, 6 Gray,
611; Hartford Ore Co. v. Miller, 41
Conn. 112; McNulty v. Prentice, 25
Barb. 204 ; Mageehan v. Adams, 2
Binney, 109 ; Gower v. Sterner, 2
Whart. R. 75 ; Huss v. Morris, 63
Penn. St. 367 ; Mcintosh v. Saun-
ders, 68 111. 128; Kobins v. Swain, 68
111. 197 ; Milmine v. Burnham, 76
111. 362; Montgomery o. Shockey, 37
Iowa, 107; Larsen o. Burke, 39 Iowa,
703; Arbery v. Noland, 2 J. J. Marsh.
421 ; Blanchard v. Moore, 4 J. J.
Marsh. 471; Burke v. Anderson, 40
Ga. 535; Leggett v. Buckhalter, 30
Miss. 421; Clauss v. Burgess, 12 La.
An. 142; Wood v. Steamboat, 19 Mo.
529; Ladd v. Pleasants, 39 Tex. 415;
Gammage v. Moore, 42 Tex. 1 70. See
supra, §§ 856, 904, 933.
^ Wardlaw v. Wardlaw, 50 Ga. 544.
8 1 Story's Eq. Jur. § 161; Bis^
pham's Eq. § 382. See, however. Elder
0. Elder, 1 Fairfield, 80; Glass v. Hul-
bert, 102 Mass. 24; Osborn v. Phelps,
266
19 Conn. 63; Miller v. Chetwood, 1
Green Ch. 199 ; Westbrook v. Harbe-
son, 2 McCord Ch. 112; Dennis v.
Dennis, 4 Rich. Eq. 307; Climer ».
Hovey, 15 Mich. 18.
Mr. Bispham says: " In proper cases
of fraud or mistake a party ought to
have the assistance of a, chancellor in
enforcing a written contract with a
parol variation," and cites Gillespie
V. Moon, 2 Johns. Ch. 585; Keissel-
brack i>. Livingston, 4 Johns. Cli. 144;
Wall ». Ai-rington, 13 Ga. 88; Mosby
V. Wall, 23 Miss. 81 ; Philpott v. El-
liott, 4 Md. Ch. 273; Moale v. Bu-
chanan, 11 Gill 8e J. 314; Bradford v.
Bk. 13 How. 57.
* " As to the memorandum of Feb.
23, 1869, the evidence is full and con-
clusive that it was signed by the hus-
band with the understanding that it
would not be legally binding, or any-
thing more than a moral or honorary
obligation, upon either party; and by
the wife after being informed that such
was the husband's understanding of its
effect, and after being advised by her
counsel that it would not legally bind
CHAP. XII.] CONTRACTS MODIFIED BY PAROL. [§ 1022.
Where, however, the application is made to reform a con-
tract on the ground of mistake, and the defendant denies the
mistake, clear and strong proof of mistake or fraud is necessary
to induce a court to interfere.^
§ 1022. It must also be remembered that the admissibility
of evidence, in cases of fraud or concurrent mistake, But not or-
for the purpose of reforming a document, depends contradict*
largely on the terms of the document which it is pro- document.
posed to reform. If the evidence of fraud or mistake goes to the
execution of the document, then, as we have seen, it makes no
matter what are the terms of the document, for the question is,
not modification, but existence.^ But it is otherwise when
the question is whether the terms of a document were varied
by parol, the document itself, so far as concerns the obligation
imposed by its execution, continuing in full force. Now it is
absurd to suppose that A. and B., after executing a contract
for the sale of a house, would agree to take out of the contract
all its material parts, and turn it into a contract for the sale of
a ship. Even were the statute of frauds not in the way, the
courts would refuse parol evidence to prove such a change,
because (if for no other reason) it is inherently improbable that
her. In short, both parties signed it v. Hudson, 102 Mass. 45; Boardman
with the understanding that they were v. Davidson, 7 Abb. Pr. (N. S.) 439 ;
not bound thereby, except so far as Jackson v. Andrews, 59 N. Y. 244 ;
they might feel themselves morally Hyer v. Little, 20 N. J. Eq. 443 ; Mor-
obliged to carry out the intention rison v. Morrison, 6 Watts & S. 516
therein expressed. Evidence of this Irwin v. Shoemaker, 8 Watts & S. 75
character, though not competent to Edmond's Appeal, 59 Penn. St. 220
control the interpretation of the con- Wallace v. Hussey, 63 Penn. St. 24
tract, is clearly admissible to show Monroe v. Behrens, 67 Penn. St. 459
that the contract should be set aside, Gill v. Clagett, 4 Md. Ch. 470; Miner
or treated as of no effect, in equity, v. Hess, 47 111. 170; Goltra v. Sana-
Townshend v. Strangroom, 6 Ves. sack, 53 111. 456 ; McTucker v. Tag-
328; Willan u. Willan, 16 Ves. 72; gart, 27 Iowa, 478; Heaton v. Fry-
Bradford u. Union Bank of Tennessee, berger, 38 Iowa, 185; Tripp v. Has-
13 How. 57; Western Railroad Co. v. ceig, 20 Mich. 254; Murphy v. Dun-
Babcock, 6 Met. 346; Glass v. Hul- ning, 30 Wise. 296; Dupree v. Mc-
bert, 102 Mass. 24, 35." See, also, Donald, 4 Desau. Ch. 209 ; Westbrook
Mitchell V. Kintzer, 5 Penn. St. 216. v. Harbeson, 2 MoCord Ch. 112 ;
Gray, J., Earle v. Kice, 111 Mass. Ryan u. Good wyn, 1 McMuU.Eq. 451;
20. Bunse v. Agee, 47 Mo. 270; Makler
1 Supra, §§ 932, 1019; Bradford v. v. McClelland, 21 La. An. 579.
Bradford, 54 N. H. 463; Stockbridge * See supra, § 931.
■ 26T
§ 1022.] THE LAW OF EVIDENCE. [BOOK II.
such a change could have been made ; and, even if it "were made,
no party can claim equity to enforce an agreement so negligent.
It is otherwise, indeed, as we have already seen, when the offer is
to prove the rescission of a contract, or "its extension, in a mode
not incompatible with its tenor. But to reverse the contents
of a contract, retaining its formal and operative texture, parol
evidence will not be received. Thus (fraud in obtaining execu-
tion not being shown), it is inadmissible to prove by parol that
an assignment was meant as a discharge ; ^ or that the assign-
ment is only for a moiety of what it purports to pass ; ^ or that
it was meant to secure only a portion of the creditors it pur-
ported to secure.* It is, in fine, not ordinarily competent,* to
prove by parol that a written contract has been modified by
letting into it new provisions, where those provisions are not
simply a development, or new application of the written terms.^
On the other hand, parol evidence may be received to show that
the provisions of a written contract, which could have been made
by parol, have been waived, and a new parol contract substituted,
when such new provisions are a reasonable modification of the
old, and when it would work a fraud not to sustain the change.^
1 Howard v. Howard, 3 Mete. 548. 17 Ind. 167; Willey v. Hall, 8 Iowa,
2 Diirgin v. Ireland, 14 N. Y. 322. 62; Adler v. Friedman, 16 Cal. 138;
' Aldrich v. Hapgood, 39 Vt. 617. Leeds v. Fassman, 17 La. An. 32.
* Supra, §§ 927-33, 1017. In England a court of equity will
* Vallette v. Canal Co. 4 McL. 192; not interfere, unless it be clearly con-
Young V. McGown, 62 Me. 56; Hale vinced by the most satisfactory evi-
V. Handy, 26 N. H. 206 ; Field v. dence, first, that the mistake com-
Mann, 42 Vt. 61 ; La Farge v. Rickert, plained of reaUy exists, and next, that
6 Wend. 187; Jackson v. Andrews, 59 it is such a mistake as ought tobecor-
N. Y. 244; Barnes v. Bartlett, 47 Ind. rected. Mortimer v. Shortall, 2 Dm.
98; Casady- B. "Woodbury, 13 Iowa, & War. 371, per Sugden, C; Bold ».
113; Randolph v. Perry, 2 Port. (Al.) Hutchinson, 5 De Gex, M. & G. 558;
376. See supra, § 920. Wright v. Goff, 22 Beav. 207, 214;
« Brock V. Sturdivant, 12 Me. 81; Ashhurst v. Mill, 7 Hare, 502; Gil-
Marshall w. Baker, 19 Me. 402; Rubber lespie v. Moon, 2 Johns. Ch. R. 685.
Co. V. Duncklee, 30 Vt. 29; Flanders See Bloomer v. Spittle, L. R. 13 Eq.
V. Fay, 40 Vt. 316; Post o. Vetter, 2 427. X plaintiff may seek the relief
E. D. Smith, 248 ; Wood v. Perry, 1 in equity by filing a bill, either to re-
Barb. 114; Grierson v. Mason, 60 /orm the writing, — in which event it
N. Y. 394 ; RafEensberger v. CuUison, will be necessary to satisfy the court
28 Penn. St. 426; Dictator v. Heath, that the mistake was made on toih
56 Penn. St. 290; Creamer «. Stephen- sides; Mortimer v. Shortall, 2 Dru. &
son, 16 Md. 211 ; Rigsbee v. Bowler, War. 372, per Sugden, C; Murray ».
268
CHAP, xn.]
CONTRACTS MODIFIED BY PAROL.
[§ 1024.
§ 1023. To reform a contract of sale on ground of fraud, it is
necessary, according to the Pennsylvania practice, that Reforma-
the fraud should be specially set out in the declaration,^ be specially
or, if it be set up in defence, that it should be averred *''^«'i-
in the pleas .^ A party, seeking to rescind a contract on ground
of fraud, cannot be heard until he offers to give up all the ad-
vantages of the contract.^
§ 1024. With an unlimited reformation of contracts as to
realty, the statute of frauds, as it exists in most of the u^^gy
United States, is, as we have seen, in conflict. By that |'at"te of
statute, in its usual form of enactment, all uncertain in- such refor-
terests in land, when created by parol, are to be treated cannot
merely as estates at will, saving only leases for a term ^"^^
Parker, 19 Beav. 305 ; Rooke v. Ld.
Kensington, 2 Kay & J. 753 ; Bentley v.
Mackay, 31 Beav. 143, 151, per Eom-
illy, M. R. ; 4 De Gex, F. & J. 279,
S. C; Sells V. Sells, 29 L. J. Ch. 600;
1 Drew. & Sm. 42, S. C. ; Fowler v.
Fowler, 4 De Gex & J. 250 ; Elwes v.
Elwes, 2 GifF. 545 ; 3 De Gex, F. &
J. 667, S. C. ; Bradford v. Romney, 30
Beav. 431, 438 ; Gray v. Boswell, 13
It. Eq. R. N. S. 77; Fallon v. Robins,
16 Ibid. 422; Taylor's Ev. § 1042,
from which the above is taken ; or to
rescind the instrument, — in which
case (though conclusive proof of error
or surprise on the plaintiflPs part alone
will suffice; 1 Taylor's Ev. ut supra;
Mortimer v. Shortall, 2 Dru. & War.
3 7 2, per Sugden, C. ; ■ Murray u. Parker,
19 Beav. 305 ; Kooke v. Ld. Kensington,
2 Kay & J. 753 ; Bentley v. Mackay, 31
Beav. 143, 151, per Romilly, M. R.; 4
De Gex, F. & J. 279, S. C; Sells v. Sells,
29 L. J. Ch. 500; 1 Drew. & Sm. 42,
S. C. ; Fowler v. Fowler, 4 De Gex &
J. 250 ; Elwes v. Elwes, 2 Gifi'. 545 ;
Bradford v. Romney, 30 Beav. 431,
438 ; Gray v. Boswell, 13 Ir. Eq. R.
N. S. 77; Fallon v. Robins, 16 Ibid.
422 ; see Harris v. Pepperell, 5 Law
Rep. Eq. 1) it must appear that the
mistake was one of vital importance.
In either of these cases, if the defend-
ant by his answer denies the case as
set up by the plaintiff, and the latter
simply relies on the verbal testimony
of witnesses, and has no documentary
evidence to adduce, — such, for in-
stance, as a rough draft of the agree-
ment, the written instructions for pre-
paring it, or the like, — the plaintiff's
position will be well-nigh desperate ;
though even here, as it seems, the
parol evidence may be so conclusive
in its character as to justify the court
in granting the relief prayed . Morti-
mer V. Shortall, ut supra ; Alexander
V. Crosbie, Lloyd & G. 150.
1 Butcher v. Metts, 1 Miles, 155 ;
Jordan v. Cooper, 3 S. & R. 564; Hu-
ber V. Burke, 11 S. & R. 245^ Irvine
V. Bull, 4 Watts, 287 ; Clark v. Par-
tridge, 2 Barr, 13; Renshaw v. Gans, 7
Barr, 117 ; Heebner v. Worrall, 38
Penn. St. 376 ; Bank v. Eyer, 60
Penn. St. 436.
^ Partridge o. Clarke, 4 Penn. St.
166.
8 Young V. Stevens, 48 N. H. 133;
Underwood v. West, 52 111. 397; Spur-
gin V. Traub, 65 111. 170; Lane v. Lat-
imer, 41 Ga. 171 ; and cases cited su-
pra, §§ 932, 1019.
269
§ 1025.] THE LAW OF EVIDENCE. [BOOK II.
' not exceeding three years from date. Supposing a contract is
duly executed in writing for the sale of land, but that, through
mistake or fraud, a less quantity of land be inserted in the deed
than the parties intended, can a chancellor, on the mistake or
fraud being duly proved, reform the deed by inserting the greater
instead of the lesser measurements ? On this and cognate points
the minds of chancellors have been greatly agitated. The statute
of frauds, they have agreed, should not be permitted to work
frauds ; and certain broad conditions they have concurred in rec-
ognizing as exceptions to its provisions. (1.) If the defendant,
admitting the contract, does not set up the statute, it will not be
set up by the court. (2.) A part performance of the contract
(e. g. by going into possession) may be treated as a substitute
for a written agreement. (3.) A party who fraudulently pre-
vents another from executing a written contract cannot set up
the want of that contract. A discussion of these exceptions has
been already attempted.^ It is enough, at this point, to repeat
that where either of the exceptions is established, then parol
evidence to reform a contract, in cases of mutual mistake or
fraud, may be received under the limitations above expressed.
If the defendant sets up the statute, if there has been no part
performance, if there has been no clear proof of fraud preventing
the execution of a written contract, then we are forced to hold
that a written contract, no matter what may be the proof of
fraud or mistake outside of the limit just noticed, cannot be
reformed on parol proof so as to make it pass a larger interest in
land than appears on its face. It may be made to pass a less
interest, not a greater.^
§ 1025. We may, also, in obedience to the reasoning just
Parol con- giv^D, conclude that under the statute a written con-
stftuted'for *''^°*> executed for one purpose, cannot be turned by
written not parol to another purpose, by discharging it of one set
under stat- of Contents, and putting in another set.* Hence it is
settled that where the subsequent contract incorporates
1 See supra, §§ 904-11 ; Bispham's Sch. & L. 22 ; Glass «. Hulbert, 102
Equity, § 383 el seq. Mass. 24; Osborn v. Phelps, 19 Conn.
" 1 Sugd. Vend. & P. (Sth Am. 68 ; Gillespie v. Moon, 2 John. Ch.
ed.) 243 ; Woollam v. Hearn, 2 Lead. 585. See Glass v. Hulbert, 102 Mass.
Cas. in Eq. 684 ; Jordan «. Sawkins, 81.
1 Ves. Jr. 402 ; Clinan v. Cooke, 1 » Supra, §§ 854 et seq., 902 et seq.
270
CHAP. XII.J CONTRACTS MODIFIED BY PAEOL.
[§ 1026.
portions of the original contract, and cancels the rest, the subse-
quent contract is the only one subsisting between the parties ;
and if dealing with an object which the statute requires to be in
writing, such subsequent contract must be in writing.^
§ 1026. It may happen, however, to take an alternative al-
ready presented, that the parties to a written contract, cuaterai
without changing its general purpose, may agree by extension
parol that it is to be extended so as to apply to new proved by
,,.,,,. , . . , , . parol.
and kmdred objects ; or that its terms, without being
varied as between the original parties, are to be expanded so as
to introduce new parties ; or that new powers shall be grafted on
those which the instrument already gives, or that the period for
its execution should be enlarged. In such case such collateral
extension can be proved by parol, there being no statutory bar.^
1 Powell on Evidence, 2d ed. 399.
Therefore, where the plaintiffs agreed
in writing with the defendant to let
him a public-house, as tenant, from
year to year, with the option on his
part to call for a lease for twenty-
eight years, upon the terms, among
others, that if he sold the lease for
more than £1,200 he was to give the
plaintiffs half the excess; and subse-
quently, by verbal agreement, a lease
was granted, the terms of which dif-
fered materially from those stipulated
for in the written agreement, but the
parties never abandoned the agree-
ment as to the division of the excess
of the purchase money; and the de-
fendant having sold the lease for
£2,500, the plaintiff sued him for a
moiety of the £1,300, the excess of
the purchase money over the £1,200,
it was held by the court of exchequer
that the original agreement in writing
was entirely superseded, and that the
agreement under which the lease was
taken was the verbal one, of which one
term was the stipulation in the orig-
inal contract as to the excess of the
purchase money ; and that as the
agreement was not in writing, as re-
quired by the statute of frauds, the
plaintiffs were not entitled to recover.
Sanderson v. Graves, 23 W. R. 797 ;
L. E. 10 Ex. 234. See Stearns v.
Hall, 9 Gush. 31 ; Musselman v. Stoner,
31 Penn. St. 265; Adler v. Freedman,
16 Gal. 138.
» White V. Parkin, 12 East, 578 ;
Morgan v. Griffith, L. K. 6 Ex. 70;
Lindley v. Lacey, 17 C. B. (N. S.)
578; Malpas v. R. R. L. R. 1 C. P.
336 ; Brady v. Oastler, 3 H. & G.
112 ; Angell v. Duke, L. R. 1 Q.
B. 174 ; Cottrill v. Myrick, 12 Me.
222 ; Bonney v. Morrill, 57 Me. 368 ;
Gourtenay v. Fuller, 65 Me. 156 ; Cum-
mings V. Putnam, 19 N. H. 569 ; Her-
som V. Henderson, 21 N. H. 224; Field
V. Mann, 42 Vt. 61 ; Buzzell v. Wil-
lard, 44 Vt. 44; Joannes v. Mudge, 6
Allen, 245 ; Richardson v. Hooper, 13
Pick. 446 ; Rennell v. Kimball, 5
Allen, 356 ; Raymond v. Sellick, 10
Conn. 480; Smith v. Richards, 29
Gonn. 232 ; Orguerre v. Luling, 1
Hilt. (N. Y.) 383; Hoagland v. Hoag-
land, 2 N. J. Eq. 501 ; Gilbert v.
Duncan, 29 N. J. L. 133 ; Willis v.
Fernald, 33. N. J. L. 206; Grove v.
Hodges, 55 Penn. St. 514 ; Miller v.
Miller, 60 Penn. St. 16 ; Everson v.
Fry, 72 Penn. St. 330; Malone v.
271
1026.]
THE LAW OF EVIDENCE.
[book n.
In other words, to adopt Mr. Stephen's statement,^ a party is at
liberty to prove " the existence of any separate oral agreement
as to any matter on which a document is silent and which is not
inconsistent with its terms, if from the circumstances of the case
the court infers that the parties did not intend the document to
be a complete and final statement of the whole of the transac-
tion between them." ^
Dougherty, 79 Penn. St. 46; Basshor
V. Forbes, 36 Md. 154; Planters' Ins.
Co. V. Deford, 38 Md. 382 ; Fusting
V. Sullivan, 41 Md. 170 ; Stearns v.
Mason, 24 Grat. 484; Bryant v. Dana,
8 111. 343 ; Silsbnry v. Blumb, 26 111.
287 ; Hartford Ins. Co. v. Wilcox, 57
HI. 186 ; Stange v. Wilson, 17 Mich.
342 ; Vanderkarr v. Thompson, 19
Mich. 82; Keough v. McNitt, 6 Minn.
513 ; Page v. Einstein, 7 Jones (N.
C.) L. 147; Lowry v. Pinson, 2
Bailey, 324 ; Wells v. Thompson, 50
Ala. 84 ; Lytle v. Bass, 7 Coldw. 303 ;
McDonald v. Stewart, J.8 La. An.
90; Dixon v. Cook, 47 Miss. 220;
Bennet u. Peebles, 5 Mo. 132 ; Alex-
ander I*. Moore, 19 Mo. 143 ; Van
Studdiford v. Hazlett, 56 Mo. 322 ;
Weaver v. Fletcher, 27 Ark. 510 ;
Babcock v. Deford, 14 Eans. 408 ;
Kelly V. Taylor, 23 Cal. 11 ; Inger-
soU V. Truebody, 40 Cal. 603 ; Lock-
wood V. U. S. 5 Ct. of CI. 379.
1 Evidence, art. 90.
2 " When the purpose for which a
writing was executed is not inconsist-
ent with its terms, it may properly be
proved by parol. Truscott v. King, 2
Seld. 147, 161 ; Chester v. Bank of
Kingston, 16 N. Y. 336, 843; Agawam
Bank v. Strever, 18 Ibid. 502. The ob-
jection of the plaintiff to the evidence
introduced for this purpose was there-
fore properly overruled." Porter, J.,
Hutchins v. Hebbard, 34 N. Y. 26.
In a Maryland case we have the
following : —
" The test of admissibility in such
cases is whether the evidence offered
272
tends to alter, vary, or contradict the
written contract, or only to prove an
independent collateral fact, about
which the written contract was silent.
In the former case, the testimony ia
inadmissible ; in the latter, it is com-
petent and proper. The case of Bla-
den V. Wells & Wife, is a good il-
lustration of the former, and Bas-
shor & Co. V. Forbes, of the latter.
In Bladen v. Wells, the grantors, by
their deed, in consideration of Sl,300,
conveyed to the grantee certain lands
therein described ; afterwards they
filed their bill, alleging that at the
time of the sale the appellant (the
grantee) agreed that if the lands con-
tained not more than 140 acres, it was
to belong to the appellant, but if more
the appellant was to pay the appellees
for the excess over 130 acres, at the
rate of ten dollars in gold, or twenty
dollars in currency, per acre. Excep-
tions were taken to the evidence in re-
lation to the agreement ; in comment-
ing upon which this court held such
testimony inadmissible, because the al-
leged contract and the case made by the
bill were inconsistent with the deed, in
which all previous contracts regard-
ing the land were merged. 80 Md. 582.
This case distinctly recognizes the set-
tled law, that parol evidence may be
offered to prove any collateral, inde-
pendent facts, about which the agree-
ment is silent, referring to Creamer v.
Stephenson, 15 Md. 211 ; McCreary
V. McCreary, 5 G. & J. 157 ; Dorsey
V. Eagle, 7 G. & J. 331; but concludes
that in the principal case then before
CHAP. XII.J CONTRACTS MODIFIED BY PAROL.
[§ 1027.
§ 1027. In conformity with the rule which has been just
stated, parol evidence has been received of a parol agreement be-
Henderson, 1 0 S. & R. 290 ; Drinker
V. Byers, 2 Penn. R. 528 ; Parke v.
Chadwick, 8 W. & S. 96 ; Renshaw
V. Gans, 7 Barr, 117 ; Bank i;. For-
dyce, 9 Barr, 275 ; Farrel v. Lloyd,
69 Penn. St. 239 ; Torrens v. Camp-
bell, 74 Penn. St. 474.
" It is also well settled that in a case
of a simple contract in writing, oral
evidence is permissible to show that
by a subsequent agreement the time
of performance was enlarged, or the
place of performance changed, the
contract having been performed ac-
cording to the enlarged time, or at
the substituted place, or the perform-
ance having been prevented by the
act of the other party ; or that the
agreement itself was waived or aban-
doned. So it has been held compe-
tent to prove an additional and sup-
pletory agreement by parol; as, for
example, where the contract for the
hire of a horse was in writing, and it
was further agreed by parol that acci-
dents occasioned by his shying should
be at the risk of the hirer. Le Fevre
V. Le Fevre, 4 S. & R. 241, supports
the same general rule. Shughart v.
Moore, 78 Penn. St. 469." Wood-
ward, J., Malone v. Dougherty, 2
Weekly Notes, 160 ; S. C. 79 Penn.
St. 239. ,
In Lloyd v. Farrell, 2 Weekly
Notes, 38, which was a suit by A.
(the vendor) for the purchase money
of land, the vendee set up failure of
consideration on the ground that A.
was equitably seised only of one third
of the title, having inherited the
same from his father equally with
his two sisters. In answer to this evi-
dence was offered: (1.) that the father
had purchased with A.'s money, and
at his request ; (2.) that the deed to
the defendant had been made on the
273
the court the deed was neither silent
nor inconclusive as to the matter about
which the parol contract was made ;
it related to and covered conclusively
the whole subject of the contract,
both as to price and quantity, and was
a full, complete, and executed con-
tract between the parties, in reference
to the land which was sold. On the
other hand this court, in the late case
of Basshor & Co. v. Forbes, declared
the testimony offered by the defend-
ant to prove that his individual liabil-
ity as a stockholder was waived by a
verbal understanding with the plain-
tiffs, that they were to look to and
rely upon the securities furnished by
the company alone and exclusively,
was admissible to prove an indepen-
dent and collateral fact, not provided
for by the terms of the contract. In
support of which position they refer,
among others, to the cases cited in
Bladen v. Wells, also Lindley v. Lacy,
17 Com. B. (N. S.) 578 ; 2 Taylor's
Evidence, §§ 1038, 1049 ; Vide 36
Md. 164, 167.
" The case of Allen v. Sowerby,
Adm'r, 37 Md. 420, also sanctions the
admission of parol evidence to estab-
lish ' an additional suppletory agree-
ment,' by which something is supplied
that is not in the written contract, for
which it relies on Coates & Glenn v.
Sangston, 5 Md. 130 ; Atwell & Ap-
pleton V. Miller, 11 Md. 361. To
these may be added the more recent
English cases cited by the appellees.
Lindley v. Lacy, 17 C. B. (N. S.)
586 ; 1 L. Rep. C. P. 336 ; Wallis v.
Littell, 11 C. B. (N. S.) 369; 2 Tay-
lor's Ev. §§1039, 1049." Bowie, J.,
Fusting V. Sullivan, 41 Md. 169, 170.
As distinctive Pennsylvania author-
ities to the extent to which a contract
may be qualified by parol, see Miller v.
VOL. n. 18
§ 1028.] THE LAW OF EVIDENCE. ' [BOOK 11.
tween two indorsers of a note to divide the loss between them ; ^
of a parol agreement of an indorser to a note by which he
waives demand and notice ; ^ of a parol agreement by an agent
that he should receive no compensation ; ^ of a parol agree-
ment for application of a payment under a written contract ; *
of a parol agreement, collateral to a lease, by which the lessor
agrees to destroy all the rabbits on a place leased ; ^ of a parol
agreement, collateral to a written bill of sale of furniture, that
the vendee shall take up the vendor's acceptance ; * of a parol
agreement, by the vendor of a grocery store, that he would not
carry on the business in the same neighborhood ; ' of a parol
agreement as to the mode of payment ; ® of a parol agreement by
the parties to an indenture of charter party to use the ship for a
period which was to elapse before the charter party attached ; ^
and of a parol agreement designating the place for carrying iato
effect a contract, and as to which it is silent.^'' To prove such
collateral extensions usage may be appealed to.^^ " It has long
been settled that in commercial transactions ejctrinsic evidence of
custom and usage is admissible to annex incidents to written con-
tracts in matters with respect to which they are silent. The same
rule has also been applied to contracts in other transactions of life,
in which known usages have been established and prevailed ; and
this has been done upon the principle of presumption that in
such transactions the parties did not mean to express in writing
the whole of the contract by which they intended to be bound,
but to contract with reference to those known usages." ^^
§ 1028. Were a person who signs a deed or other contract
Parol evi- able to avoid performing it on the ground that he was
missibie to mistaken as to its effect, it would be only necessary
express parol agreement that A. con- ^ Lindley v. Lacey, 17 C. B. (JS
veyed and warranted only his own S.) 578.
title. This was held admissible, al- ' Pierce v. Woodward, 6 Pick. 206.
though the deed contained the usual ^ Sowers v. Earnhart, 64 N. C. 96.
warranty. See I'arrell v. Lloyd, 69 » White v. Packin, 12 East, 578;
Penn. St. 239. Seago v. Deane, 4 Bing. 459.
1 Phillips V. Preston, 5 How. 278. •" Cummings ». Putnam, 19 N. H.
" Sanborn v. Southard, 25 Me. 409; 569; Musselman «. Stoner, 81 Peoo.
FuUerton «. Rundlett, 27 Me. 31. St. 265; Moore D.Davidson, 18 Ala.209.
» Joannes v. Mudge, 6 Allen, 245. >> Supra, § 969.
* Foster r.McGraw, 64 Penn. St.464. " Per Parke, B., Hatton v. Warren,
' Morgan w. Griffiths, L. R. 6 Ex. 70. 1 M. & W. 475.
274
CHAP. Xn.] CONTRACTS MODIFIED BY PAROL.
[§ 1028.
for him to omit reading the contract before signing it, prove uni-
in order to be bound or not as he chose. It is the duty mistake of
of every one executing such a writing to be aware of
its contents before signing ; it is against the policy of law to
permit those neglecting this duty to benefit by their neglect.
Hence a mere mistake of fact will be ordinarily no gi-ound for
relief, so far as concerns the writers of such instruments and
those claiming under them.^ Evidence, however, is admissible
to prove mistake on one side, and fraud on the other.^ Thus
an excess of quantity in a conveyance of land may be proved
by parol, and damages may be recovered therefor, when the
mistake was concurrent, or induced by fraud.^ So an action
will lie for the value of a deficiency oi^ quantity.*
1 Brown V. Allen, 43 Me. 590 ;
Young V. McGown, 62 Me. 56; Web-
ster V. Webster, 33 N. H. 18 ; Brad-
ley V. Anderson, 5 Vt. 152; McDuffie
V. Magoon, 26 Vt. 518; Locke v. Whit-
ing, 10 Pick. 279; Fitzhugh v. Kun-
yon, 8 Johns. R. 375; Cameron u. Ir-
win, 5 Hill N. Y. 272 ; Mills v. Lewis,
55 Barb. 179; Pitcher u. Hennessey,
48 N. Y. 415; Jackson v. Andrews,
59 N. Y. 244; Boyce v. Ins. Co. 55 N.
Y. 240; Wesley v. Thomas, 6 Har. &
J. 24 ; Watkins v. Stockett, 6 Har. &
J. 435; Boyce v. Wilson, 32 Md. 122;
Kearney v. Sascer, 37 Md. 264'; Har-
ris V. Dinkins, 4 Desau. 60 ; Nelson v.
Davis, 40 Ind. 366; Peques v. Mosby,
15 Miss. 340 ; Nixon v. Porter, 38
Miss. 401; Hathaway v. Brady, 23
Cal. 121 ; Robinson v. McNeil, 51 111.
225; Barnes v. Bartlett, 47 Ind. 98
Ludington v. Ford, 33 Mich. 123
Harter i;. Christoph, 32 Wise. 248
Schwickerath v. Cooksey, 53 Mo. 75
Wade V. Pelletier, 71 N. C. 74 ; and
cases cited supra, § 1019; infra, §§
1078, 1243.
" Supra, §§ 1019, 1021; Welles v.
Yates, 44 N. Y. 525. See Bellows v.
Steno, 14 N. H. 175, and cases cited
supra, § 1021, as to mistake in con-
tents of document, and § 945 as to
fraud in execution. As to rejection
of erroneous particulars, see supra,
§945.
» Jordan v. Cooper, 3 S. & R. 564 ;
Bank v. Galbraith, 10 Barr, 490 ;
Jenks V. Fritz, 7 W. & S. 201 ; Fisher
V. Deibert's Adm'r, 54 Penn. St. 460 ;
Bartle v. Vosbury, 3 Grant, 279 ;
Schettiger v. Hopple, Ibid. 56. See
Tarbell v. Bowman, 103 Mass. 341.
In Beck v. Garrison, Sup. Ct. o£ Penn-
sylvania, 1875, 1 Weekly Notes, 309,
which was an equitable assumpsit to re-
cover for an excess of land, the court
said: " The questions in this case were
really questions of fact. There was
suflScient evidence to be submitted to
the jury of a promise to pay for the
excess contained in the deed, if the
survey should be found to contain a
greater quantity of land than was to
be sold at the rate of $1,000 for a sin-
gle acre. There was also evidence
tending to show that there was a mis-
take in the survey, and that the lines
did actually contain an excess over the
quantity intended to be sold and con-
veyed. These questions were fairly
submitted to the jury and found in
favor of the plaintiff, and therefore
became a ground of recovery."
* See supra, § 945.
275
§1030.] THE LAW OF EVIDENCE. [BOOK H.
§ 1029. Mistake of law, as is well settled, is no ground for the
Mistake of interposition of a chancellor for the purpose of reform-
'r^uSdfor ^°S ^ Contract. Sometimes this conclusion is based
relief. q^ the presumption that every one knows the law, and
knowing it, cannot, without fraud, set up his subsequent igno-
rance. It is unnecessary, however, to resort to reasoning so
artificial to support a proposition which is a necessary axiom of
government.! It is, sufficient to say that if a party mistaking
the law could get rid of a contract which he made under the in-
fluence of the mistake, not only would there be very few losing
contracts that would not be got rid of, but a mad spirit of specu-
lation would be generated by the assurance that no venture, no
matter how desperate, would bring personal loss. Hence it is
that the courts have united in accepting the principle that a
contract cannot be reformed because it was entered into under
a mistake of law.^ If, however, one party mistakes the law
through the other's fraud ; or if the mistake of the one be pro-
moted by the other, then there may be relief.^ Of mutuality of
mistake we have a marked illustration in an English case, where
the oldest of three brothers divided lands, of which the second
brother had died possessed, under the mistaken impression, which
was confirmed by a mutual friend of both parties, that land
could not ascend. Here relief was granted,* not because there
was actual fraud, but because the contract rested on a mistake
which the defending contracting party had furthered.
§ 1030. Where from a writing itself it appears that words
1 See infra, § 1241. Goltra v. Sanasack, 53 111. 456 ; Moor-
» See cases cited to § 1028, and see man v. Collier, 32 Iowa, 138; Bledsoe
Hunt V. Rouamanier, 8 Wheat. 174 ; v. Nixon, 68 N. C. 521 ; Thurmond v.
Hoover v. Keilly, 2 Abb. (U. S.) 471 ; Clark, 47 Ga. 500 ; Gwynn v. Hamil-
Freeman v. Curtis, 51 Me. 140 ; Pot- ton, 29 Ala. 233 ; McMurray v. St.
ter V. Sewall, 54 Me. 142 ; Mellish v. Louis, 33 Mo. 377 ; Smith v. McDou-
Robertson, 25 Vt. 603 ; Shotwell ... gal, 2 Cal. 586.
Murray, 1 Johns. Ch. 512; Champlin » Kerr on Fraud & Mistake, 400;
V. Laytin, 18 Wend. 407 ; Garnar v. Cooper v. Phibbs, L. R. 2 H. L. Gas.
Bird,57Barb. 277; Dickinson u. Glen- 149;Blakeman v. Blakeman, 89 Conn.
ney, 27 Conn. 104 ; Zane v. Cawley, 320 ; Wheeler v. Smith, 9 How.
21 N.J.Eq. 130; Gebb w. Rose, 40 Md. 55; Wlielen's Appeal, 70 Penn. St.
387; Brown v. Armistead, 6 Rand. 425.
594; Barnes v. Bartlett, 47 Ind. 98; * Lansdown v. Lansdown, Mosley,
Heavenridge i>. Mondy, 49 Ind. 484; 364.
276
CHAP. Xn.] CONTRACTS MODIFIED BY PAROL. [§ 1031.
have been transposed or erroneously inserted by a clerical error,
then this may be corrected on trial, and the writing read Mistake of
according to its intended meaning.^ Thus, in Massa- form, when
chusetts, where S., who in the body of a bond was recited may be'
as a surety, signed as a witness, and W., an intended
witness, whose name did not appear in the body of the bond,
signed as surety, in the place where S. should have signed, it was
held that parol evidence was admissible to show that this trans-
position was a mistake ; and on this evidence S. was held liable
as surety.^ So, in the same state, where a contract is agreed
to and signed, but a wrong name is inserted by the scrivener
at one point in place of the name of one of the contracting
parties, this mistake, it has been held, can be rectified by parol.^
As to strangers, this right of correction is always open.* Thus,
where a debtor delivered a certificate of stock to his credi-
tor, with power of attorney to transfer, as collateral security, it
was held that in a contest with another creditor, the purchaser
might show by parol that the date in the power was entered by
mistake, and that the title to the stock passed to the creditor
at the time of the delivery of the certificate and the power of
attorney.^
§ 1031. To permit a conveyance, absolute on its face, but vir-
tually in trust, to be enioved by the nominal grantee in Convey-
j ' J J */ __ c> ance may
defiance of the trust, would be a fraud which equity be shown
* See supra, §§ 933, 939, 948; Loss mistakes, see Jackson v. Hart, 12
V. Obry, 22 N. J. Eq. 52 ; Wheeler v. Johns. R. 77; Jackson v. Foster, 12
Kirtland, 23 N. J. Eq. 13 ; Barthell Johns. K. 488. Where the sons and
V. Koderick, 34 Iowa, 517. Ambigui- sons-in-law of a decedent united in a
ties: Fallon w. Kehoe, 38 Cal. 44; Ex- written agreement, one of whose pro-
change Bk. V. Eussell, 50 Mo. 531; visions allotted to the sons-in-law cer-
Moore v. Wingate, 53 Mo. 398; Miller tain portions in their own right, parol
V, Davis, 10 Kans. 541. evidence was held in Alabama inad-
'' Richardson v. Boynton, 12 Allen, missible, in a common law procedure,
138. to show that such portions were in-
' Brown v. Oilman, 13 Mass. 158 ; tended to have been given to the sons-
though see Crawford v. Spencer, 8 in-law in right of their wives. Moody
Cush. 418, where evidence was re- v. McCown, 39 Ala. 586. See, how-
fused to show that a grantee's name ever, Mitchell v. Kintzner, 5 Penn.
was entered by mistake of the scriv- St. 216.
ener in the place of another person, * See supra, § 923.
who was the intended grantee, and * Finney's Appeal, 59 Penn. St.
.who entered on and occupied the land. 398. See infra, § 1078.
And as to refusal to correct similar
277
§ 1031.J
THE LAW OF EVIDENCE.
[book II.
to be in "would not tolerate ; and hence courts of equity, when
be a mort-° such trusts have been fully and plainly established, have
^s®' treated the grantee as a trustee, and compelled him to
execute the trust. It is no bar to the exercise of this jurisdiction
that the deed so acted on was one the statute of frauds re-
quires to be in writing. The statute of frauds cannot be used
as an instrument of fraud, nor do its terms include cases of
this class.^ The trust, in such case, may be proved by parol ;
and when such is the local practice, equitable remedies of this
class can be applied through common law form.^
1 Supra, § 903; intra, § 1034.
" Price V. Dyer, 17 Ves. 356; Sprigg
V. Bank, 14 Pet. 201 ; Russell v. South-
ard, 12 How. 139; Rhodes v. Farmer,
17 How. 467 ; Babcock ». Wyman, 19
How. 289; Villa v. Rodriguez, 12 Wall.
323; Morgan v. Shinn, 15 Wall. 110;
Baxter v. Willey, 9 Vt. 276; Wing v.
Cooper, 37 Vt. 178; Hill o. Loomis,
42 Vt. 562; Stackpole v. Arnold, 11
Mass. 27; Flint v. Sheldon, 13 Mass.
443; Flagg v. Mann, 14 Pick. 467;
Eaton V. Green, 22 Pick. 526; Camp-
bell V. Dearborn, 109 Mass. 130; Mc-
Donoughu. Squire, 111 Mass. 219 ; Ben-
ton V. Jones, 8 Conn. 186; Sheldon v.
Bradley, 37 Conn. 324; Gilchrist v.
Cunningham, 8 Wend. 641; Van Du-
sen V. Worrall, 4 Abb. (N. Y.) App.
473; Despard v. Wallbridge, 15 N. Y.
378 ; Anthony v. Atkinson, 2 Sweeny,
228; Horn v. Keteltas, 46 N. Y. 605 ;
McMahon v. Macy, 51 N. Y. 161;
Mechan v. Forrester, 52 N. Y. 277;
Carr v. Carr, 52 N. Y. 521 ; Sweet v.
Parker, 22 N. J. Eq. 453 ; Freytag v.
Hoeland, 23 N. J. Eq. 36; Heister v.
Madeira, 3 W. & S. 385 ; Stair v.
Bank, 55 Penn. St. 364 ; Odenbaugh
V. Bradford, 67 Penn. St. 96 ; Baisch
V. Oakeley, 68 Penn. St. 92; MafBt v.
Rynd, 69 Penn. St. 387; Haines v.
Thompson, 70 Penn. St. 434; Bank
V. Whyte, 1 Md. Ch. 536; S. C. 3 Md.
Ch. Dec. 508 ; Farrell v. Bean, 10 Md.
217; Dryden v. Hanway, 31 Md. 254;
278
Smith V. Parks, 22 Ind. 59 ; Church ».
Cole, 36 Ind. 34; Preschbaker ». Tea-
man, 32 111. 483; Fleming v. McHale,
47 111. 282; Latham v. Latham, 47 HI.
185; Smith v. Wright, 49 HI. 403;
Price V. Karnes, 59 111. 276; Swet-
land V. Swetland, 3 Mich. 482; Hel-
ton V. Meighen, 15 Minn. 69 ; Trucks
V. Lindsey, 18 Iowa, 504 ; Kay v. Mc-
Cleary, 25 Iowa, 191; Wilson v. Pat-
rick, 34 Iowa, 362; Fairchild v. Rass-
dall, 9 Wise. 379 ; Wilcox v. Bates, 26
Wise. 465 ; Ragan v. Simpson, 27
Wise. 355; Edrington v. Harper, 3 J.
J. Marsh. 853 ; Thomas v. McCormack,
9 Dana, 109 ; Mallory v. Mallory, 5
Bush, 464 ; Nichols v. Cabe, 3 Head,
93 ; Turbeville v. Gibson, 5 Heisk.
565 ; McDonald v. McLeod, 1 Ired.
Eq. 221 ; Glisson v. Hill, 2 Jones Eq.
256 ; Steel v. Black, 3 Jones Eq. 427;
Elliott V. Maxwell, 7 Ired. Eq. 246;
Lockett V. Child, 11 Ala. 640; Brown
V. Abell, 11 Ala. 1009; Locke v. Pal-
mer, 26 Ala. 312; Brantley ». West,
27 Ala. 642; Parish v. Gates, 29 Ala.
254; Crews v. Threadgill, 35 Ala. 334;
Bragg 1). Massie, 38 Ala. 106 ; Barrell
V. Hanrick, 42 Ala. 60; Ingraham v.
Grigg, 21 Miss. 22 ; Vasser v. Vasser,
23 Miss. 878; Anding v. Davis, 38
Miss. 594 ; Weathersly v. Weathers-
ly, 40 Miss. 469 ; Hogel v. Lindell, 10
Mo. 483 ; Tibeau v. Tibeau, 22 Mo.
77 ; Slowey v. McMurray, 27 Mo.
116 ; Thomas v. Wheeler,47 Mo. 363;
CHAP. XII.] CONTRACTS MODIFIED BY PAROL.
[§ 1032.
§ 1032. For the same reason, a conveyance absolute on its face
may be shown, if the proof be clear, to have been taken as
merely a security, and will in such case be treated as a mortgage,
so far as concerns parties and privies,^ "It is not questioned
that an instrument absolute in its terms may be shown by parol
evidence to be only a mortgage." ^
Summers u. Ins. Co. 13 La. An. 504 ;
Moore v. Wade, 8 Kans. 380 ; Pierce
V. Robinson, 13 Cal. 116; Lodge v.
Turman, 24 Cal. 390; Case v. Cod-
ding, 38 Cal. 457; Henley «. Hotaling,
41 Cal. 22; Farmer v. Grose, 42 Cal.
169; Hannay v. Thompson, 14 Tex.
142; Reeves v. Bass, 39 Tex. 618;
Blakemore v. Byrnside, 7 Ark. 505 ;
McCarron v. Cassidy, 18 Ark. 34;
Chaires v. Brady, 10 Fla. 133. In
New Hampshire, there is a statutory
exclusion of such evidence. Lund v.
Lund, 1 N. H. 39; Kingsley v. Hol-
brook, 45 N. H. 321 ; and so in
Georgia. 7 Cobb's Dig. 1851, p. 274.
In Maine, though resulting trusts may
be so proved, for the creating or de-
claring of other trusts, writings are
necessary. Thomaston v. Stimpson,
21 Me. 195; Bryant v. Crosby, 36
Me. 562; Richardson u. Woodbury, 43
Me. 206. On the Maine statute we
have the following : "1. It is claimed
that the estate in Oliver by deed from
his father, of October 4, 1846, was in
trust. But the deed is in common
form, and it discloses no trust. Now,
by the statutes of this state, all trusts
must be ' created or declared by some
writing signed by the party or his at-
torney,' except those ' arising or re-
sulting by implication of law.' R. S.
c. 73, § 11. The conversations and
intentions of the family, before the
deed was given, could not alter or
change its efEect. Parol evidence of
the object and purpose for which the
conveyance was made thereby, to con-
vert the deed into one of trust, is not
admissible. Flint v. Sheldon, 13
Mass. 448. Nor is there a resulting
trust. The payments by the difierent
members of the family were made at
different times after the title was in
Oliver. Nothing was paid by any one
when the conveyance was made, and
it is well settled that no resulting trust
can arise from the payment or advance
of money after the purchase is com-
pleted. Farnham v. Clemants, 51
Maine, 426 ; Dudley v. Bachelder, 53
Maine, 403." Appleton, C. J., Gerry
V. Stimson, 60 Maine, 188.
1 Supra, § 903 ; Hills v. Loomis, 42
Vt. 562 ; Clark v. Clark, 43 Vt. 685 ;
French v. Burns, 35 Conn. 359 ; Whit-
ney V. Townsend, 2 Lansing, 249 ;
Phillips V. Hulsizer, 20 N. J. Eq. 308;
Crane v. De Camp, 21 N. J. Eq. 414;
McGinity v. McGinity, 63 Penn. St.
38 ; Harper's Appeal, 64 Penn. St.
315 ; Klinik v. Price, 4 W. Va. 4 ;
Shays v. Norton, 48 111. 100; Kent v.
Agard, 24 Wise. 378; Kent u. Lasley,
24 Wise. 654 ; Robertson v. Willough-
by, 65 N. C. 520; Turner v. Kerr, 44
Mo. 429 ; Phillips v. Croft, 42 Ala.
477; Paris v. Dunn, 7 Bush, 276;
Honore v. Hutchings, 8 Bush, 687;
Raynor v. Lyons, 37 Cal. 452; Mc-
Kinney v. Miller, 19 Mich. 142. The
nature of the consideration will be of
much weight in determining the equi-
ties. See Cornell v. Hall, 22 Mich. 377.
2 Strong, J., in Morgan v. Shinn,
15 Wall. 110; citing Babcock v. Wy-
man, 19 How. 289.
The practice in New York is stated
in the following opinions : —
"It is now too late to controvert
the proposition that a deed, absolute
279
§ 1033.]
THE LAW OF EVIDENCE.
[book n.
§ 1033. A deed, however, that is absolute on its face, and
Evidence which is duly delivered, and possession taken nnder it,
Sain and cannot be contradicted by parol evidence to the effect
strong. that it was intended only as a trust, unless fraud or
upon its face, may in equity be shown,
by parol or other extrinsic evidence,
to have been intended as a mortgage;
and fraud or mistake in the prepara-
tion, or as to the form of the instru-
ment, is not an essential element in
an action for relief, and to give effect
to the intention of the parties. The
courts of this state are fully commit-
ted to the doctrine ; and, whatever
may be the rule in other states, here,
in passing upon the question, we have
only to stand upon the safe maxim of
stare decisis. It is not enough, in
view of the fact that the adjudica-
tions have entered into and controlled
business transactions, and become a
rule of property to authorize a recon-
sideration of the questions, that the
rule has been authoritatively adjudged
otherwise as a rule of evidence in
common law courts, and that emi-
nent judges have contended earnestly
against its adoption as a rule in courts
of equity. Notwithstanding their pro-
tests the rule has been, upon the full-
est consideration, deliberately estab-
lished, and cannot now be lightly de-
parted from. The principle was rec-
ognized by the chancellor in Holmes
V. Grant, 8 Paige, 243 ; although it
was not applied in that case, and had
been before asserted under like cir-
cumstances in Robinson v. Cropsey, 2
Edw. Chy. R. 138; affirmed 6 Paige,
480. It was expressly adjudged in
Strong V. Stewart, 4 J. C. R. 167,
that parol evidence was admissible to
show that a mortgage only was in-
tended by an assignment absolute in
terms; and to the same effect is Clark
V. Henry, 2 Cow. 324, which was fol-
lowed by this court in Murray v.
280
Walker, 31 N. Y. 399. In Hodges v.
Tennessee Marine & Fire Insurance
Co. 4 Seld. 416, the court says that,
' from an early day in this state, the
rule, that parol evidence is admissible
for the purpose named, has been es-
tablished as the law of our courts of
equity; and it is not fitting that the
question should be reexamined, and
the cases in which it has been so ad-
judged are cited with approval.' In
Sturtevant v. Sturtevant, 20 N. Y. 39,
the same judge, pronouncing the opin-
ion as in the case last cited, distin-
guishes between the case of a mort-
gage and trust; and it was decided that
while a deed absolute in terms could
be shown to be a mortgage, a trust in
favor of the grantee could not be es-
tablished by parol. And see Despard
V. Walbridge, 15 N. Y. 374. The rule
does not conflict with that other rule
which forbids that a deed or other
written instrument shall be contra-
dicted or varied by parol evidence.
The instrument is equally valid whetli-
er intended as an absolute conveyance
or a mortgage. Effect is only given
to it according to the intent of the
parties; and courts of equity will al-
ways look through the forms of a trans-
action and give effect to it so as to
carry out the substantial intent of the
parties." Allen, J., Horn v. Keteltas,
46 N. Y. 609.
So, in a later case : —
"It is always competent to show
that an assignment or conveyance,
absolute in form, was only intended
as a security. Hodges v. Tennessee
M. & F. Ins. Co. 8 N. Y. 416; Despard
V. Walbridge, 15 N. Y. 374; Sturte-
vant V. Sturtevant, 20 N. Y. 39."
CHAP. XII.J
CONTRACTS MODIFIED BY PAROL.
[§ 1033.
gross concurrent mistake be shown, and the evidence be clear,
and relates to intention coincident with the execution.^ A party,
Earl, C, McMahon v. Macy, 51 N. Y.
161.
In Pennsylvania, it is now settled
that the fourth section of the Act of
1356, requiring instruments of trust
to be in writing, made no alteration in
the rule theretofore existing, which
allowed a deed, absolute on its face,
to be shown by parol to be a mort-
gage. Ballentine v. White, 77 Penn.
St. 20; Maffitt v. Kynd, 69 Penn. St.
(19 P. F. Smith) 387.
" The first specification of error
complains that the learned court be-
low admitted parol evidence to show
that the transfer by White to Ballen-
tine, dated April 1, 1855, though in
form an absolute conveyance, was in
reality intended by the parties as a
mortgage to secure indebtedness then
existing, and money to be subse-
quently loaned. The contention of
the plaintiff in error is founded en-
tirely upon the fourth section of the
Act of April 22, 1856, Pamph. L. 533;
but as the transfer in question was
executed April 1, 1855, and that sec-
tion is clearly prospective, as was
held in Lingenfelter v. Ritchey, 8 P.
F. Smith, 488, it is unnecessary to
consider this assignment further. It
is, however, proper to add, that this
court has decided the question in
Maffitt's Administrator v. Rynd, 19 P.
F. Smith, 387, where it is said that
' it cannot be maintained that the Act
of April 22, 1856, has made any al-
teration in what has always hereto-
fore been the established rule on this
subject in Pennsylvania. ' " Ballen-
tine V. White, 77 Penn. St. 25.
^ Supra, § 904; Movan v. Hays, 1
Johns. Ch. 339; St. John v. Benedict,
6 Johns. Ch. Ill; Barrett v. Carter,
3 Lansing, 68 ; Hutchinson v. Tin-
dall, 3 N. J. Eq. 357 ; Whyte v. Ar-
thur, 17 N. J. Eq. 521; Cook v. Barr,
44 N. Y. 156 ; Goucher v. Martin, 9
Watts, 106 ; Lingenfelter v. Riohey,
62 Penn. St. 128; Com. «. Kreager,
78 Penn. St. 477; Collier v. Collier,
30 Ind. 32 ; Minot v. Mitchell, 30 Ind.
228 ; Nicolli7. Mason, 49 111. 358; Lan-
try V. Lantry, 51 111. 451 ; Barkley v.
Lane, 6 Bush, 587; Waddingham v.
Loker, 44 Mo. 132. See Hassam v.
Barrett, 115 Mass. 256.
. . . . " In a case where a trust, or
the conversion of an absolute estate
into a mortgage, is attempted to be
made out by parol evidence, the court
and jury exercise the functions of a
chancellor, and the evidence, assum-
ing the testimony of the witnesses to
be true, ought to be such as would
satisfy his conscience. ' The judge
alone is the chancellor. The province
of the jury is to aid him in ascertain-
ing the facts out of which the equities
arise. If the facts are not disputed,
he is to declare their effect, and de-
termine whether the claim or the de-
fence is well founded. A chancellor
is judge, both of the equity and of the
facts. It is in his discretion whether
he will send an issue to a jury ; and
if he does, their verdict is only ad-
visory. It is not conclusive upon him.
Whenever, therefore, upon the trial
of an ejectment, founded upon an
equitable title, the court is of an opin-
ion that the facts proved do not make
out a case in which a chancellor would
decree a conveyance, it is their duty
to give binding instructions to that
effect to the jury.' Strong, J., in
Todd V. Campbell, 8 Casey, 252."
Sharswood, J., McGinity v. McGinity,
63 Penn. St. 44. And see, under stat-
ute of frauds, §§ 863 note, 903.
281
§ 1035.] THE LAW OF EVIDENCE. [BOOK II.
however, setting up a trust title of this class, must do equity by
an offer to redeem.^
§ 1034. We have already seen,^ that the terms of the statute
Under Stat- ^f frauds do not prevent a parol declaration of trust,
nte of No statute, in fact, without great injustice, could pro-
ficient'if hibit the enforcement of such declarations. " It is not
tllTllSt IS
manifested required by the statute that a trust should be created by
in writing. ^j.j(.j,^g^ g^jj^ t^^g words of the statute are very particular
in the clause respecting declarations of trust. It does not by any
means require that all trusts shall be created only by writing,
but that they shall be manifested and proved by writing ; plainly
meaning that there should be evidence in writing proving that
there was such a trust. Therefore, unquestionably, it is not
necessarily to be created by writing, but it must be evidenced by
writing, and then the statute is complied with ; and indeed the
great danger of parol declarations, against which the statute was
intended to guard, is entirely taken away. I admit that it must
be proved in toto not only that there was a trust, but what it
was." ^ An answer in chancery has consequently been held suf-
ficient to sustain the establishment of a trust ; and so have, a
fortiori, written admissions.*
§ 1035. Where one person pays the purchase money, and
Eesulting another takes the title, then, in equity, the person
^e"prove5 taking the title will be treated as trustee for the per-
By parol, g^j^ paying the money. In such case parol evidence is
admissible to prove the trust, though such evidence must be clear
and strong.* The money, however, must form a considerable
1 Supra, § 1033; Thomas u. Wright, Pike, 2 Fairfield, 9; Baker v. Vining,
9 S. & R. 87; Hughes v. Davis, 40 SO Me. 127; Page v. Page, 8 N. R
Cal. 117. 187; Moore v. Moore, 38 N. H. 187;
2 Supra, § 903. Hatchings v. Heywood, 50 N. H. 491;
' Lord Alvanley in Foster v. Hale, Penney v. Fellows, 15 Vt. 525; Pea-
3 Ves. 707. See Smith u. Matthews, body v. Tarbell, 2 Cush. 232; Kendall
6 W. R. 644, and in prior notes here- v. Mann, 11 Allen, 15 ; Blodgett v.
to; and see cases cited in 2 Wash. Hildredth, 103 Mass. 487; Barrows v.
Real Est. 50, 51 (4th ed.), and supra, Bohan, 41 Conn. 278; Boyd v. Mc-
§ 903. Lean, 1 Johns. C. R. 582; Swinburne
< 3 Sugd. V. & P. 252 ; Rob. on v. Swinburne, 38 N. Y. 568 ; Richards
Frauds, 95; Randall v. Morgan, 12 v. Millard, 56 N. Y. 574; Jackman ti.
Ves. 67. See supra, § 903. Ringland, 4 Watts & S. 149; McGinity
5 Dyer v. Dyer, 2 Cox, 92; Buck t;. v. McGinity, 63 Penn. St. 39; Hays
282
CHAP. XII.] CONTRACTS MODIFIED BY PAROL.
[§ 1036.
part of the purchase.^ The broad principle is, that whoever pays
the purchase money of land is entitled to the fruits of that which
he purchases, though the legal title is in another.^ To this rule
exists a well marked exception, that when the money is advanced
by a parent, and the legal title taken in a child, the advance will
be supposed to be for the benefit of the child.^ Equity will also
enforce a resulting trust where a conveyance is made in a trust
declared only in part ; while as to the residue there is no dis-
position on the face of the writing.* The doctrine, it should be
observed, is analogous to the common law rule, that where there
is a feoffment without consideration the use results to the feoffor.^
Parol evidence is of course as admissible to disprove as to prove
the trust.®
§ 1036. In several states of the Union, among which may be
mentioned Maine, Massachusetts, New York, Indiana, Michigan,
and Wisconsin, resulting trusts of the class just specified are
prohibited by statute.^
V. Quay, 68 Penn. St. 263 ; Farrell v.
Lloyd, 69 Penn. St. 239. See Lloyd
V. Farrell, supra, § 1027; Creed v.
Bank, 1 Oh. St. 1 ;- Miller v. Stoke-
ly, 5 Oh. St. 194; Lewis v. White, 16
Oh. St. 44; HoUis v. Hayes, 1 Md.
Ch. 479 ; Cecil Bk. v. Snively, 23
Md. 261 ; Dryden v. Hanway, 31 Md.
854; Bank U. S. v. Carrington, 7
Leigh, 566 ; Phelps v. Seely, 22 Grat.
687; Parmlee v. Sloan, 37 Ind. 469;
Kane v. Herrington, 50 111. 232;
Thomas v. Chicago, 55 111. 403 ; Rob-
erts V. Opp, 56 111. 34; McGuire v.
McGowen, 4 Dess. Ch. 481 ; Price v.
Brown, 4 S. C. 144; Harvey v. Led-
better, 48 Miss. 95 ; McCarrol v. Alex-
ander, Ibid. 128; Paul v. Chouteau,
14 Mo. 580; Rings v. Richardson, 53
Mo. 585; Kennedy v. Kennedy, 57
Mo. 73; Paris v. Dunn, 7 Bush, 276;
Honore v. Hutchings, 8 Bush, 687;
Holder i>. Nunnelly, 2 Cold. 288; By-
ers V. Danley, 27 Ark. 77 ; Oberthier
V. Stroud, 33 Tex. 522. See Nicklin
V. Wythe, 2 Sawyer, 535.
' Roberts v. Ware, 40 Cal. 634.
2 Sugd. V. & P. 255; Wray v.
Steele, 2 Ves. & B. 388; Leneh v.
Lench, 10 Ves. 517; Houghton, ex
parte, 17 Ves. 251 ; Hayden v. Dens-
low, 27 Conn. 335.
8 Sayre v. Hughes, L. R.5Eq. 376;
Hepworth v. Hepworth, L. R. 11 Eq.
10; Soar v. Foster, 4 Kay & J. 152;
Tucker v. Burrow, 2 Hem. &M. 515.
* Lloyd 0. Spillet, 2 Atk. 150.
' Grey v. Grey, 2 Swans. 598.
" Edwards v. Edwards, 2 Y. & C.
Ex. 123; Brady v. Cubitt, 1 Dougl.
31; Beecher v. Major, 2 Dr. & Sm.
431. Supra, §§ 973-4.
A denial, under oath, by the trustee,
is not an insuperable bar to relief.
Bartlett v. Pickersgill, 3 East, 577, n.
Supra, §§ 973-4.
' Bispham's Eq. § 84. As to limi-
tations of statutes restricting such
trusts, see Foote v. Bryant, 47 N. Y.
544 ; Fisher v. Fobes, 22 Mich. 454 ;
Johnson e. Johnson, 16 Minn. 512.
As to Pennsylvania, Act of April 22,
1856; Roy u. Townsend, 78 Penn. St.
329. Supra, § 863, n.
283
§ 1038.] THE LAW OF EVIDENCE. [BOOK H.
§ 1037. The evidence of such a trust must be weighed with pe-
culiar caution where it consists of declarations of a deceased per-
son ; and nothing but proof of the strongest character will sustain
a decree enforcing a trust in such a case.^ The admissions of
trust must come directly from the party charged with the trust.^
§ 1088. Parol evidence, also, will be received to prove an
So of other agreement to reconvey. Thus, in an English equity
trusts. case, the evidence was that the plaintiff had conveyed
an estate to the defendant without consideration, on the under-
standing that the defendant should, in certain events, reconvey
it to him. On the plaintiff applying for a reconveyance, the
defendant pleaded the statute of frauds ; but the court of chan-
cery made a decree for a reconveyance, on the ground that the
statute of frauds was never intended to prevent a court of equity
from giving relief in a case of a plain, clear, and deliberate
fraud.^ Generally, when a title is fraudulently obtained, equity
will treat the person fraudulently obtaining the title as trustee
for the real owner, though the case is proved only by parol.* So
equity will relieve in a proper case between the cestui que trust
and the trustee's vendee. Thus where, on proceedings in parti-
tion, the administrator conveyed to the husband the wife's share
of the land, the husband paying no money, it was held that the
wife might prove these facts by parol a^ against a purchaser with
notice.^ To rebut equities of this class, parol evidence is neces-
sarily admissible.^
1 Hill on Trustees, *156; Wilkinsw. » Haigh v. Kaye, L. R. 7 Ch. 469.
Stephens, 1 Y. & C. Ch. C.431 ; Groves See, also, generally, Cipperly t>. Cip-
V. Groves, 3 Y. & J. 170; Baker u. Vin- perly, 4 Thomp. & C. 342; Blaylock's
ing, 30 Maine, 121; Boyd v. McLean, Appeal, 73 Penn. St. 146; Anderson
1 Johns. Ch. 582; Botsford v. Burr, v. McCarty, 61 HI. 64; Belohradsky
2 Johns. Ch. 413; McGinity v. Me- v. ICuhn, 69 111. 548; MoDill v. Gunn,
Ginity, 63 Penn. St. 42 ; Nixon's Ap- 43 Ind. 315. As to statute of frauds,
peal. Ibid. 279 ; Kistler's Appeal, 73 see supra, §§ 901-912.
Penn. St. 400 ; Com. v. Kreager, 78 * Church v. Sterling, 16 Conn. 388;
Penn. St. 477; Capehart u. Capehart, Hunter v. Hopkins, 12 Mich. 227;
2 Phila. 134 ; Johnson ii. Quarles, 46 Kennedy v. Kennedy, 2 Ala. 571.
Mo. 423; Ringo t). Richardson, 53 « See, also, Earle r. Rice, 111 Mass.
Mo. 385. As has been already seen, 20; Mitchell v. Kintzer, 5 Penn. St.
a party is ordinarily inadmissible to 216.
prove such a case against the estate ' Supra, § 973-74 ; and see cases
of a deceased party. Supra, §§ 464-7. cited supra, § 1085.
" Com. V. Kreager, 78 Penn. St. 477.
284
CHAP. XII.] ' CONTRACTS MODIFIED BY PAROL. [§ 1040.
§ 1039. A recital in a deed is evidence against him who
executed the deed, and s^gainst every person claiming .
under him.^ Recitals, in this view, have been classed recitals
as particular and general. A particular recital is con-
clusive evidence of matters stated in it, when offered in a suit
directly on the deed. " If a distinct statement of a particular
fact is made in the recital of an instrument under seal, and
a contract is made with I'eference to that recital, it is clear that
as between the parties to such instrument and in an action upon
it, it is not competent for the party bound to deny the recital." ^
Among particular recitals the following may be enumerated :
That a lot is bounded by a particular road, which does not
mean, however, that such road was fit for travel ; ^ that the title
consists of certain specified links;* that the party conveying was
entitled, as agent, to convey.^ Eminently is an estoppel opera-
tive when the recital involves a bilateral agreement to admit a
fact.^ It is otherwise, however, when the recital is collateral to
the purposes of the action. In such case, being a mere unilateral
admission, it does not estop. ^ Infants are not bound by recitals
in deeds executed by their guardians,^ but married women are
estopped by recitals in deeds by which they are bound.®
§ 1040. G-eneral recitals (i. e. those which do not aver par-
ticular facts, or aver them non-contractually) may h& primd facie
1 Com. Dig. Evid. (B. 5) ; Gwyn v. Huntington v. Havens, 5 Jolins. Ch.
Neath, Ex. 122; L. R. 3 Ex. 209. 23.
* Parke, B., in Carpenter v. BuUer, ' Bigelow on Estoppel, 2d ed. 269
8 M. & W. 212. See Shelly v. Wright, Young v. Raincock, 7 C. B. 310
Willes, 9; Lainson v. Tremere, 1 Ad. Stroughill v. Buck, 14 Q. B. 781
&E. 792; Bowman u. Taylor, 1 Ad. & Carver v. Jackson, 4 Peters, 1
E. 278; Van Rensalaer v. Kearney,ll Bruce v. U. S. 17 How. 437; Parker
How. 332; Green v. Clark, 13 Vt. 58; v. Smith, 17 Mass. 413; Fox v. Union
Stow V. Wyse, 7 Conn. 214. Sugar Ref. Co. 109 Mass. 292; Atlan-
» Parker v. Smith, 17 Mass. 540 ; tic Dock Co. v. Leavitt, .'J4 N. Y. 35;
Tufts V. Charlestown, 2 Gray, 271; Bower v. McCormick, 23 Grat. 310;
Rodgers w. Parker, 9 Gray, 445; Stet- 111. Land Co. v. Bonner, 75 111. 315;
son B. Dow, 16 Gray, 323; Gaw v. Ballon w. Jones, 37 111. 95; Williams u.
Hughes, 111 Mass. 296; Cox w. James, Swetland, 10 Iowa, 51 ; Comstock v.
45 N. Y. 562 ; Bellinger v. Burial Soe. Smith, 26 Mich. 306 ; Courvoisier v.
10 Penn. St. 137. Bouvier, 3 Neb. 55.
* Carver v. Jackson, 4 Pet. 85 ; ' Carpenter v. Buller, 8 M. & W.
Scott V. Douglass, 7 Oh. 287; 3 Wash- 212. Infra, § 1083.
burn on Real Prop. 100. ^ Milner u.Harewood, 18Vesey,274.
^ Stow V. Wyse, 7 Conn. 214. See » Jones v. Frost, L. R. 7 Ch. 776.
285
§ 1042.]
THE LAW OF EVIDENCE.
[book n.
as to
general
recitals.
but are never conclusive evidence against the party making
Otherwise them, " since certainty is of the essence of an estop-
pel." ^ The very fact of indefiniteness leads to the in-
ference that there is no contract between the parties as
to the recital, but that it is a mere vague expression, open to
correction by the party by whom it is made.^ Where the reci-
tal involves a contract, it estops ; if it does not involve a contract,
it operates only as a unilateral admission, and is open to expla-
nation.^ But a recital in a deed, though not estopping, may
make, even against the heirs of the grantor, a primd facie case.*
§ 1041. It need scarcely be added that, so far as concerns third
Recitals do parties, a recital in a deed, unless for the purpose of
Silrd'par- proving reputation and tradition,^ is hearsay.^ Even
ties. when offered in evidence by a third person, against the
party making the recital, a recital may be explained and dis-
puted by parol.'^
§ 1042. Recitals of receipt of purchase money stand on a dis-
Eecitais of tinct basis, it being held that though they may be called
particular, they may be varied or explained by the par-
1 3 Washburn on Real Prop. (1876) * Penrose v. Griffith, 4 Binn. 231 ;
purch;
money
101; Bigelow on Estoppel, 2d ed. 266;
Lainson v. Tremere, 1 Ad. & E. 792;
Kepp V. Wiggett, 10 Com. B. 32;
Right u. Bucknell, 2 Barn. & Ad. 278 ;
Butcher v. Musgrave, 1 Man. & G.
625; Carpenter v. Buller, 8 M. & W.
212; Doane f. Wilcutt, 16 Gray, 368;
Huntington v. Havens, 5 Johns. Ch.
23; Naglee v. IngersoU, 7 Barr, 185;
Hays V. Askew, 5 Jones (L.), 63. As
to admissions by predecessor in title,
see infra, § 1156.
" Miller v. Moses, 56 Me. 128;
Wright V. Tukey, 3 Gush. 290; Doane
u. Wilcutt, 16 Gray, 368; Naglee v.
IngersoU, 7 Barr, 185; Noble v. Cope,
50Penn. St. 17. See Doe w. Shelton, 2
Ad. & El. 265, where it was held that
Allen V. Allen, 9 Wright (Penn.), 473;
Cumberland Valley R. R. v. McLan-
ahan, 59 Penn. St. 23; Grubb r. Grubb,
74 Penn. St. 25.
5 See supra, §§ 194, 210.
° " A recital in a conveyance is only
evidence against the parties to it, and
privies in blood or in estate. It does
not bind strangers or those who claim
by title paramount." Hill v. Draper,
10 Barb. 454 ; Sharp v. Speir, 4 Hill,
76 ; Penrose v. Griffith, 4 Binn. 231;
Carver v. Jackson, 4 Peters, 1 ; Crane
V. Lessee of Morris, 6. Ibid. 611."
Allen, J., Hardenburgh «. Lakin, 47
N. Y. 111. And see Schuylkill Ins.
Co. V. McCreary, 58 Penn. St. 304;
Yahoola Co. v. Irby, 40 Ga. 479;
a vendee was not estopped from dis- Lamar v. Turner, 48 Ga. 829; Smith
puting a recital of bankruptcy.
» South E. R. R. V. Wharton, 6 Hurl.
& N. 520 ; Osborne v. Endicott, 6 Cal.
153 ; Carpenter v. Buller, 8 M. & W.
212. See infra, § 1156.
286
II. Penny, 44 Cal. 161; Carver ». Jack-
son, 4 Pet. 1, 83; Penrose v. Griffith,
4 Binn. 231 ; and see fully supra, §§
171, 173, 923.
' See supra, § 923 ; infra, § 1044.
CHAP. XII.]
CONTRACTS MODIFIED BY PAROL.
[§ 1042.
ties by parol proof. They partake in this respect of the "pen to pa-
nature of receipts, which, as we will presently see,^ are nations,
open to parol explanations.^ " Even as against a party to a deed.
1 Infra, § 1064.
" R. V. Scammonden, 3 T. R. 474;
Barbank v. Gould, 15 Me. 118; Bas-
sett V. Bassett, 55 Me. 127 ; Baxter
V. Greenleaf, 65 Me. 405 ; Vogt v.
Ticknor, 48 N. H. 242; White v. Mil-
ler, 22 Vt. 380 ; Thayer v. Viles, 23
Vt. 494; Davenport v. Mason, 15 Mass.
85 ; Wilkinson v. Scott, 17 Mass.
249; Clapp v. Tirrell, 20 Pick. 247;
Livermore v. Aldrich, 5 Gush. 431;
Trott V. Irish, 1 Allen, 481 ; Estabrook
V. Smith, 6 Gray, 572; Miller v. Good-
win, 8 Gray, 542 ; Clark v. Houghton,
12 Gray, 38; Drury v. Tremont Imp.
Co. 13 Allen, 168; Belden v. Sey-
mour, 8 Conn. 304; Shephard v. Lit-
tle, 14 Johns. 210; Whitbeck v. Whit-
beck, 9 Cow. 266 ; Vechte ur^Brownell,
8 Paige, 212 ; Bratt v. Bratt, 21 Md.
578 ; Andrews v. Andrews, 12 Ind.
348; Swope v. Forney, 17 Ind. 385;
Elder v. Hood, 38 111. 533; Groesbeck
0. Seeley, 13 Mich. 329; Reynolds v.
Vilas, 8 Wise. 471; Dayton v. War-
ren, 10 Minn. 233; Gordon v. Gor-
don, 1 Mete. Ky. 285 ; Dudley v. Bos-
worth, 10 Humph. 9 ; Wesson v. Ste-
phens,2 Ired. Eq. 557 ; Kennedy v. Ken-
nedy, 2 Ala. 571 ; Parker v. Foy, 43 Miss.
260; Beard's Succession, 14 La. An.
121; Rabsuhl v. Lack, 35 Mo. 316;
Coles V. Soulsby, 21 Cal. 47.
The cases are well stated in the, fol-
lowing opinion : —
" The only effect of the considera-
tion clause in a deed is to estop the
grantor from alleging that it was ex-
ecuted without consideration, and to
prevent a resulting trust.in the grantor,
the price in whole or in part against
the grantee. Wilkinson v. Scott, 17
Mass. 249. This clause is ^nma facie
evidence only of payment, and may
be controlled or rebutted by other
proof. Clapp V. Tirrell, 20 Pick. 247.
The recitals in the deed, of the
amount and payment of considera-
tion, do not estop the grantee from
sustaining an action for the price.
Thayer v. Viles, 23 Verm. 494; White
V. Miller, 22 Verm. 380. ' This clause
is either formal or nominal,' says Dag-
get, J., in Belden v. Seymour, 8 Conn.
304, ' and not designed to fix conclu-
sively the amount either paid or to be
paid.' The amount of consideration
and its receipt is open to explanation
by parol proof in every direction. It
may be shown that the price of the
land was less than the consideration
expressed in the deed, as in Bowen
V. Bell, 20 Johns. 338; or that it was
contingent, depending upon the price
the grantee may obtain upon a resale
of the land, as in Hall v. Hall, 8 N. H.
129; or that it was in iron, when the
deed expressed a money consideration,
as in InIcCrea v. Purmort, 16 Wend.
460; or that no money was paid, but
that it was an advancement, as in
Meeker v. Meeker, 16 Conn. 387; or
that a portion of the price was to be
paid by the grantee, and the balance
was an advancement, as in Hayden v.
Mentzer, 10 S. & R. 329; or that it
was paid by some one other than the
grantee, and thus raise a resulting
trust, as in Scoby v. Blanchard, 3 N. H.
170; Pritchard v. Brown, 4 N. H. 397;
For every other purpose it may be Dudley v. Bosworth, 10 Humph. 9. The
varied or explained by parol proof, damages for the breach of the cove-
The grantor may show, notwithstand- nants in a deed may be increased or
ing the acknowledgment of payment, diminished, as between the parties, by
that no money was paid, and recover proof of a greater or less price paid
287
§ 1043.] THE LAW OF EVIDENCE. [BOOK H.
the recital of the consideration paid is not conclusive, and is ad-
missihle as primd facie evidence only because one party has signed
and the other has accepted the deed containing the recital.^ As
between third persons, such recitals are no evidence whatever." *
Where, however, a vendor, without fraud or concurrent mistake,
accepts the engagement of a third party for the stipulated consid-
eration, and on the faith of such engagement acknowledges the
receipt of the consideration, he will not be permitted, in a con-
troversy with the vendee, to show that the consideration was not
received.^
§ 1043. Whether in an action of ejectment the recital of receipt
of purchase vaonej is primd facie evidence of payment, has been
much disputed. It is indubitably so when a party buys on the
faith of a recorded deed which contains such a recital, and then
proceeds against the vendor. But where T., a party holding a
prior (though unrecorded) deed from S., brings ejectment against
P., a subsequent purchaser (though with a prior recorded title),
under a statute which enables a deed of subsequent date, but of
prior record, to hold, when bond fide, and for good consideration,
against a prior unrecorded deed ; the recital of payment of
for the land, than ia expressed in the 85, it was held that parol evidence,
deed. Belden v. Seymour, 8 Conn, though not admissible to contradict or
304; Morse v. Shattuck, 4 N. H. 229. vary the terms of the deed, may be
The entire weight of authority tends permitted to establish an independent
to show that the acknowledgment of fact, or to prove a collateral agreement
payment in a deed is open to unlimited incidentally connected with the stipu-
explanation in every direction." Ap- lations of a deed or other written con-
pleton, J. Goodspeed v. Fuller, 46 Me. tract. Swisher v. Swisher's Adm'r,
147. 1 Wright's Rep. 755, cited in 3 Phill.
1 Paige V. Sherman, 6 Gray, 511. Ev. 1479 (ed. 1843), and cited in the
* Gray, C. J., Rose v. Taunton, 119 defendant's brief, is exactly in point.
Mass. 100, citing Spaulding v. Knight, It was there held that an agreement
116 Mass. 148, 155. between the grantor and grantee, con-
In New Hampshire we have the fol- temporaneous with the deed, that the
lowing : " In Preble v. Baldwin, 6 Ciish. grantor should occupy the premises
549, parol evidence, proving an addi- rent free, might be received in evi-
tional consideration to that stated in dence, not being inconsistent with
the deed, was objected to as inadmissi- the deed, but an independent fact."
ble, as tending to vary and contradict Smith, J. Quimby v. Stebbins, 55
the terms of the deed. The court over- N. H. 422.
ruled the objection, remarking, ' We » McMuUin v. Glass, 27 Penn. St.
do not considerthis an open question; ' 151. Infra, §§ 1045, 1066.
and in Davenport v. Mason, 15 Mass.
288
CHAP. XII.] CONSIDEKATION VARIED BY PAROL.
[§ 1044.
purchase money in the latter deed is not even primd facie proof
of payment.^
§ 1044. We have just seen that recitals of receipt of purchase
money are open to explanation by the parties to a con-
tract. The right so to explain is not confined to cases tion^may*"
where consideration is recited. It applies to all cases of ^^ ^^°^^^
consideration, whether recited or not. And generally proved by
at common law, as between the parties to a written con-
tract, the consideration may be attacked by the party against
whom suit is brought on the instrument, and parol proof is ad-
missible to show a consideration when none is recited, or vary
1 The following opinion discusses the
authorities bearing upon this point: —
" He may have taken the deed in
entire good faith, within the meaning
of the statutes, though he paid no
consideration ; or he may liave pur-
chased in bad faith and yet have paid
a valuable consideration. Good faith
and a valuable consideration are both
required to give (by the statute) the
record precedence over the prior un-
recorded deed.
"But at law the authorities are con-
flicting as to the burden of proving
the consideration or the want of it.
In Jackson v. McChesney, 7 Cowen,
360, the supreme court of New York,
while admitting the rule to be as above
stated, yet held that, in an action of
ejectment, when the strict legal title
only is in question, the recital of the
consideration in the deed \s prima fa-
de evidence of its payment. And
the same doctrine was reiterated
(though the point was wholly unnec-
essary to the decision) in Wood v.
Chapin, 13 N. Y. 509. Now if there
were any difference in the effect to be
given to the fact of payment or non-
payment, at law or in equity, there
might be some tangible ground for
such a distinction in the mode or bur-
den of proof. But as the fact of the
payment of the consideration will
VOL. II. 19
equally support the deed, and the
want of its payment will equally de-
feat it in both courts, it is not easy to
discover any solid foundation for the
distinction. Besides, the recital in
the deed in such a case as the present
would seem to be res inter alios, mere
hearsay, and to stand upon no other
ground than tlie mere declaration of
the grantor, which would be no evi-
dence against any party not claiming
under the deed, but against it. It
would be otherwise with a recorded
deed upon the faith of which the party
has purchased, as in such a case the
law has made the record evidence
upon which he has a right to rely.
And the supreme court of Alabama,
in Nolen et al. v. Heirs of Gwyn, 16
Ala. 725 (and see McGintry et al. u.
Keeves, 10 Ala. 137), repudiate the
distinction, and fully adopt at law the
rule which, we have already stated,
seems to us the more reasonable and
just, whenever the question is whether
tfie immediate purchase of the party
to the suit was for a valuable consid-
eration. The recital, therefore, of the
consideration in the deed from Bacon
to the defendant was not, in our opin-
ion, any evidence of its payment, and
no other evidence of it was given."
Christiancy, J., Shotwell v. Harrison,
22 Mich. 418. See infra, § 1048.
289
§ 1044.J
THE LAW OF EVIDENCE.
[book n.
that of which there is a recital.^ Thus, where the language of
a guarantee leaves it doubtful whether the consideration he
past or present, and consequently, whether the instrument be
valid or invalid, parol evidence of extrinsic circumstances may
1 Foster v. Jolly, 1 C, M. & R.
707 ; Solly v. Hinde, 2 C. & M. 516 ;
Abbott V. Hendricks, 1 M. & Gr. 791 ;
Doe V. Statham, 7 D. & Ry. 141 ;
Bank U. S. v. Dunn, 6 Pet. .51 ;
Quimby v. Morrill, 47 Me. 470; Nut-
ting V. Herbert, 37 N. H. 346 ; Wil-
kinson V. Scott, 17 Mass. 249; Paget
V. Cook, 1 Allen, 522; Holden v. Par-
ker, 110 Mass. 324 ; Belden v. Sey-
mour, 8 Conn. 304 ; Wheeler v. Bil-
lings, 38 N. Y. 263; Farnum v. Bur-
nett, 21 N. J. Eq. 87; Fitler v. Beck-
ley, 2 Watts & S. 458; Strawbridge v.
Cartledge, 7 Watts & S. 394; Galway's
Appeal, 34 Penn. St. 242; Watter-
ston V. R. R. 74 Penn. St. 208 ; Cun-
ningham u. Dwyer, 23 Md. 219; Clarke
V. Dederick, 31 Md. 148 ; Fusting v.
Sullivan, 41 Md. 162; Wrightsman v.
Bowyer, 24 Grat. 483 ; Jones v. Buffum,
60 111. 277 ; Collier v. Mahon, 21 Ind.
492; McMahan v. Stewart, 23 Ind.
590; McDill v. Gunn, 43 Ind. 315;
Burdit V. Burdit, 2 A. K. Marsh. 143;
Haywood v. Moore, 2 Humph. 584 ;
Gaugh V. Henderson, 2 Head, 628 ;
Nichols V. Bell, 1 Jones L. 32; Curry
V. Lyles, 2 Hill S. C. 404; Clements
V. Lundrum, 26 Ga. 401; Eckles v.
Carter, 26 Ala. 563 ; Thomas v. Bar-
ker, 36 Ala. 392; Miller v. McCoy,
50 Mo. 214 ; HoUocher v. HoUocher,
62 Mo. 267; Lockwood u. Canfiel(J,
20 Cal. 126; Dickson v. Burks, 11
Ark. 307 ; Clinton v. Estes, 20 Ark.
216 ; Waymack v. Heilman, 26 Ark.
449 ; Perry v. Smith, 34 Tex. 277.
" The amount or kind of consider-
ation is not considered an essential
part of the contract, and is open to
contradiction or explanation, like a
common receipt. Frink v. Green, 5
290
Barb. 456; Bingham v. Weiderwax,
1 N. Y. 509; Murray v. Smith, 1 Duer,
412 ; McCrea v. Purmort, 16 Wend.
460." Ingalls, J., Barker v. Bradley,
42 N. Y. 320.
" Where a grantor has conyeyed a
farm, reserving in the deed the use of
the buildings thereon for a period of
time afterwards, the grantee is not
estopped by the deed to show that
there was an oral agreement, at the
time, that he should have what ma-
nure should be made by the grantor's
cattle on the place in the mean time,
for the use of the premises." Farrar
V. Smith, 64 Me. 74.
" In Weaver v. Woods, 9 Barr,
220, it was decided by this court that,
where a written contract is executed
for a consideration therein mentioned,
a party is not concluded in an action
for the breach of a parol contract from
showing that the agreement evidenced
by the writing was the consideration
for the contemporaneous parol con-
tract." Sharswood, J., Everson i/.
Fry, 72 Penn. St. 330.
S., after conveying a dwelling-house
to P., continued to occupy it several
weeks after the deed. In an action
of assumpsit by P. against S., for
use and occupation of the premises
during this period, it was held, that
parol evidence of a contract that S.
should thus occupy as part of the con-
sideration of the conveyance did not
tend to contradict the deed, and was
properly admitted in answer to the
claim for rent. Quimby v. Stebbins,
55 N. H. 420.
How far the recital of consideration
in sealed instruments can in law be
disputed, see infra, § 1045.
CHAP. XII.J CONSIDERATION VARIED BY PAROL.
[§ 1044.
be received to solve the doubt.^ So when a consideration ex-
pressed on an instrument has failed, another can be proved.^ So
where no consideration is expressed in writing, one may be
proved by parol ; * and it may be shown by parol that a bond
is not in fact usurious, though apparently so on its face.* Parol
evidence, also, is admissible to prove an extrinsic consideration
varying that expressed ; ^ and on an assignment for creditors,
which does not expressly recite the amount due, parol evidence
is admissible to prove such amount.® Again, when in a bill of
sale of goods the whole consideration is not stated, parol evi-
dence is admissible to supply the deficiency.^ A recital of re-
ceipt of purchase money, in a contract for sale, may be qualified
by parol.^ Such recitals, as we have seen, are not evidence in
any sense between third parties ; ^ though they are an impeach-
able admission which may be received against the party making
them and his privies. So, also, partial or entire failure of con-
sideration of negotiable paper may always be shown by parol,
so far as concerns parties with notice, although the averment,
" value received," is primd facie proof of consideration.^"
» Goldshede v. Swan, 1 Ex. R. 154,
and cases there cited ; Edwards v.
Jevons, 8 Com. B. 436; Colbourn o.
Dawson, 10 Com. B. 765; Bainbridge
V. Wade, 16 Q. B. 89; Head v. Grace,
31 L. J. Ex. 98 ; 7 H. & N. 494, S.
C; Wood V. Priestner, 4 H. & C.
681 ; HefEeld v. Meadows, 4 Law
Rep. C. P. 595. As to burdert of
proof being on party seeking to avoid
such writing, see Steele v. Hoe, 14 Q.
B. 431 ; Brown v. Batchelor, 1 H. &
N. 255; Mare u. Charles, 6 E. & B.
978.
" Leifchild's case, L. R. 1 Eq. 231 ;
Tull V. Parlett, M. & M. 472 ; Dorsey
V. Hagard, 5 Mo. 420 ; Cowan v.
Cooper, 41 Ala. 187 ; otherwise in
cases of fraud. Young's Est. 3 Md.
Ch. 461.
» Leifchild's case, L. R. 1 Eq. 231 ;
Peacock v. Monk, 1 Ves. Sen. 128 ;
Hilton V. Homans, 23 Me. 136; Hope
V. Smith, 35 N. Y. Sup. Ct. 458 ;
Hayden v. Mentzer, 10 S. & R. 329;
Weaver v. Wood, 9 Barr, 220 ; Bow-
ser V. Cravener, 56 Penn. St. 132 ;
Booth V. Hynes, 54 111. 363; Landman
V. Ingram, 49 Mo. 212 ; and see cases
cited infra, § 1054.
* Campbell v. Shields, 6 Leigh,
517.
' Lewis V. Brewster, 57 Penn. St.
410 ; Malone v. Dougherty, 79 Penn.
St. 48; Holmes's Appeal, 79 Penn. St.
279 ; Taylor v. Preston, 79 Penn. St.
436.
« Piatt V. Hedge, 8 Iowa, 386.
' Nedridek v. Meyer, 46 Mo. 600.
8 Supra, § 1039 ; infra, § 1064.
* Spaulding v. Knight, 116 Mass.
148; Weaver v. Wood, 9 Penn. St.
220 ; Smith v. Conrad, 15 La. An.
579.
" Herrick v. Bean, 20 Me. 51 ; Wise
V. Neal, 39 Me. 422; Bourne v. Ward,
291
§ 1046.]
THE LAW OF EVIDENCE.
[book ir.
Seal is evi- § 1045. By the English common law, a seal, at-
dence of tached to a written instrument, is held to be conclu-
considera- . , . ^ -j. -l
tion, but sive proof 01 consideration. In equity, however, the
peached' by recital Can be overhauled on proof of fraud or mistake ;
fraud or of and this doctrine is in the United States generally ac-
mistake. cepted by common law courts.^
§ 1046. But even in equity, a party claiming under a sealed
Considera- document is bound by the general character of the con-
tion ex- , i • i i i tt t •
pressed in sideration stated in the deed. He cannot, tor instance,
contract i_ i ^ • -j: u t
cannot be as part 01 his own case, it money be averred, prove
dispSfd"'' natural love and affection ; or if natural love and affec-
by those |;jqjj )-,g averred, prove money .^ Yet where a deed is
claiming ' J^ _ •'
under it, assailed by third parties on the ground of fraud, a
but other „ , , . ^ i , ^ • t
considera- larger held IS opened, and, as relevant evidence to
be pr'oved the issue of fraud, it is admissible to show, in addition
51 Me. 191 ; Cross v. Eowe, 22 N. H. v. Alcott, 4 Allen, 506 ; Treadwell v.
77; Sowles v. Sowles, 11 Vt. 146; Buckley, 4 Day, 395; Farnuni i;.
Parisli V. Stone, 14 Pick. 198 ; Black Burnett, 21 N. J. Eq. 87 ; Straw-
Kiver Bk. v. Edwards, 10 Gray, 389 ; bridge v. Cartledge, 7 Watts & S. 394;
Corlies v. Howe, 11 Gray, 125; Stacy Hoeveler t;. Mugele, 66 Penn. St. 348;
V. Kemp, 97 Mass. 166 ; Pettibone v. Kenzie v. Penrose, 2 Scam. 515 ;
Roberts, 2 Root, 258 ; Edgerton v.
Edgerton, 8 Conn. 6 ; Slade v. Hal-
sted, 7 Cow. 322 ; Sawyer v. Mc-
Louth, 46 Barb. 350; Snyder v. Wilt,
15 Penn. St. 59; Druley v. Hendricks,
13 Ind. 478 ; Great West. Ins. Co. v.
Jones V. Jones, 12 Ind. 389 ; Lawton
V. Buckingham, 15 Iowa, 22; Jeter
V. Tucker, 1 S. C. 246 ; Johnson v.
Boyles, 26 Ala. 576 ; Brooks v. Hart-
mann, 1 Heisk. 36 ; McLean v. Hous-
ton, 2 Heisk. 37; Bennett v. Solomon,
Rees, 29 111. 272 ; Foy v. Blackstone, 6 Cal. 134; Splawn v. Martin, 17 Ark.
31111.538; Davis u. Strohm, 17 Iowa, 146. As to the strict common law
421 ; Austin v. Kinsman, 13 Rich. S. rule, see Rountree v. Jacob, 2 Taunt.
C. Eq. 259 ; Smith v. Brooks, 18 Ga. 141 ; Lowe v. Peers, 4 Burr. 2225 ;
440; Cartwright v. Clopton, 25 Ga. 85; Hill v. Manchester, 2 B. & Aid. 544;
Knight «. Knight, 28 Ga. 165; Boyn- Jones v. Sasser, 1 Dev. & Bat. L. 452.
ton V. Twitty, 53 Ga. 214 ; Murrah v. ^ Peacocke v. Monk, 1 Ves. Sen.
Bank, 20 Ala. 392 ; Newton v. Jack- 128 ; Gale v. Williamson, 8 M. & W.
eon, 23 Ala. 335 ; Wynne v. Whise- 408 ; Morse v. Shattuck, 4 N. H. 229;
nant, 37 Ala. 46 ; Matlock v. Living- Holbrook v. Holbrook, 30 Vt. 432 ;
8ton, 17 Miss. 489 ; Klein v. Keyes, 17 Morris v. Ryerson, 28 N. J. L. 97;
Mo. 326 ; Klein v. Dinkgrave, 4 La. Clagettu. Hall, 9 Gill & J. 80; Rock-
An. 540 ; Byrne v. Grayson, 15 La. hill v. Spraggs, 9 Ind. 30. See O'Con-
An. 457; Griffin <;. Cowan, 15 La. nor u. Kelly, 114 Mass. 97; Thornburg
An. 487. V. Newcastle R. R. 14 Ind. 499 ; Luf-
' Lowe K. Peers, 4 Burr. 2225; Em- burrow v. Henderson, 80 Ga. 482;
mons V. Littlefield, 13 Me. 233 ; Ely Mead v. Steger, 5 Port. 498.
292
CHAP. XII.] CONSIDERATION VARIED BY PAROL.
[§ 1048.
to the consideration expressed, a valuable consideration jn rebuttal
'■ if fraud be
paid, or the converse.^ charged.
§ 1047. Hence no matter what may be the consideration
averred in a deed, a party collaterally attacking such „.
deed for fraud may impeach by parol such considera- fraud is
tion.^ Thus, where a conveyance was expressed to have stranfiers
been made in consideration of £10,000, and natural ^ove con-
love and affection, the court, on a motion to set it aside, ^ideration.
allowed parol proof to show that the estate was worth £30,000,
and that there was no natural love and affection in the case.^
§ 1048. It has been indeed ruled that the consideration neces-
sary in such case to sustain a deed must be of the same general
character as that expressed in the deed, unless the deed should
aver other considerations.* But it must be remembered that the
issue here is fraud. Did the parties to the deed intend to de-
fraud third parties ? To rebut this charge, general evidence of
bona fides is properly admissible.* Such is, a fortiori, the case
where the deed, in addition to the specified consideration, avers
" divers other considerations." ® And in any view, where a deed
1 Filmer v. Gott, 7 Br. C. C. 70 ;
Gale V. Williamson, 8 M. & W. 405 ;
Pott V. Todhunter, 2 Coll. 76 ; Clifford
V. Turrell, I Y. & C. (Ch. R.) 138 ;
Brown v. Lunt, 37 Me. 423 ; Abbott
V. Marshall, 48 Me. 44 ; Wait v. Wait,
28 Vt. 350; Buckley's Appeal, 48
Penn. St. 491 ; Lewis v. Brewster, 57
Penn. St. 410 ; Potter v. Everitt, 7
Ired. Eq. 152 ; Gordon v. Gordon, 1
Mete. Ky. 285 ; Miller v. Bagwell, 3
McCord S. C. 562; Hair v. Little, 28
Ala. 236 ; Eystra v. Capelle, 61 Mo.
578 ; Stiles v. Giddens, 21 Tex. 783 ;.
Reynolds v. Vilas, 8 Wise. 481.
2 See §§ 923-8; Estabrook v.
Smith, 6 Gray, 572; Hannah v. Wads-
worth, 1 Root, 458 ; Bowen v. Bell,
20 Johns. R. 338 ; Bolton v. Jacks, 6
Robt. (N. Y.) 166 ; Miller v. Fich-
thorn, 31 Penn. St. 252; Hoeveler v.
Mugele, 66 Penn. St. 348 ; Triplett v.
Gill, 7 J. J. Marsh. 438 ; Whittaker
V. Garnett, 3 Bush, 402 ; Johnson v.
Taylor, 4 Dev. L. 855; Myers v.
Peeks, 2 Ala. 648. See O'Connor v.
Kelly, 114 Mass. 97.
8 Filmer v. Gott, 7 Br. P. C. cited
by Lord Kenyon in R. v. Scammon-
den, 3 T. R. 475-6 ; Taylor's Ev. §
1040.
" Emery v. Chase, 5 Greenl. 232
Griswold V. Messenger, 9 Pick. 517
Maigley v. Hauer, 7 Johns. R. 341
Hum V. Soper, 6 Har. & J. 276; Sew-
ell V. Baxter, 2 Md. Ch. 447 ; Ellinger
V. Growl, 17 Md. 361; Duval v. Bibb,
4 Hen. & M. 113 ; Harrison v. Cast-
ner, 11 Oh. St. 339.
* Gale V. Williamson, ut supra ; Mil-
ler V. Goodwin, 8 Gray, 542; McKin-
ster V. Babcock, 26 N. Y. 378; Hay-
den V. Mentzer, 10 Serg. & R. 329;
Bank U. S. v. Brown, Riley (S. C.)
Ch. 138.
8 Pomeroy v. Bailey, 43 N. H. 118;
Benedict v. Lynch, 1 Johns. Ch. 370;
Chesson v. Pettijohn, 6 Ired. L. 121.
293
§ 1049.] THE LAW OF EVIDENCE. [BOOK n.
recites no consideration, or a nominal or inadequate considera-
tion, then the party claiming under the deed may prove a sub-
stantial consideration ; ^ though, as against a third party con-
testing the deed, the onus of proving the consideration will lie
on the party claiming under the deed ; for the mere statement
in the operative part of a document, that it was made for good
and valuable consideration, will not suffice to raise a presumption
(when contested by innocent purchasers without notice), that any
substantial consideration has ever in fact been given.^ So, as
we have seen, if a contract or other deed under seal specifies any
particular consideration, as, for instance, love and afEection, and
omits all mention of any other consideration, no extrinsic proof
of another can in general be given, because such proof would
contradict the deed.^ It is otherwise, as has been just noticed,
if the object be to establish or negative the existence of fraud,
in which case such proof will be admissible.
§ 1049. It is scarcely necessary to add that not only a bond fide
So by iona purchaser without notice is entitled to assail a deed for
chasws want of consideration, but that the same right belongs
and judg- ^q ^Jjq bankrupt assignee of the grantor, and to pur-
meat veu- . .
dees. chasers of the estate at sheriff's sale.* Hence judgment
1 Peacock v. Monk, 1 Ves. Sen. 128; * Estabrook v. Smith, 6 Gray, 572;
TuU !/. Parlett, M. & M. 472; Leif- Cheney v. Gleason, 117 Mass. 557;
child's case, L. K. 1 Eq. 231 ; Hilton Sweetzer v. Bates, 117 Mass. 466;
V. Homans, 23 Me. 136; Wood v. Rose v. Taunton, 119 Mass. 100;
Beach, 7 Vt. 522; Pierce v. Brew, Hitchcock v. Kiely, 41 Conn. 611;
43 Vt. 292 ; Frink v. Green, 5 Barb. Hecht v. Koegel, 25 N. J. Eq. 135;
455; Benedict v. Lynch, 1 Johns. Ch. Carpenter v. Carpenter, 25 N. J. Eq.
370 ; Hope ». Smith, 35 N. Y. Sup. 194 ; Phelps v. Morrison, 25 N. J. Eq.
Ct. 458; White v. Weeks, 1 Penn. 538; EUinger v. Crowl, 17 Md. 361;
486; Hayden v. Mentzer, 10 S. & R. Sanborn w. Long, 41 Md. 107; Die-
323; Weaver v. Wood, 9 Barr, 220; trich ». Koch, 35 Wise. 618; Bigelow
Bowser v. Cravener, 56 Penn. St. 132; v. Doolittle, 36 Wise. 115; Duvall i-.
Booth V. Hynes, 54 111. 363; Laudman Bibb, 4 Hen. & M. 113 ; Swift k. Lee,
V. Ingram, 49 Mo. 212. 65 111. 336; Andrews v. Andrews, 12
" Kelson v. Kelson, 10 Hare, 385. Ind. 848; Harrison v. Castner, 11 Oh.
Supra, § 1043. St. 339 ; Johnson v. Taylor, 4 Dev. L.
'Peacock u. Monk, 1 Ves. Sen. 855 ; Wade «. Saunders, 70 N. C. 270;
128, per Ld. Hardwicke ; cited by Johnson v. Lovelace, 51 Ga. 18 ; My-
Alderson, B., in Gale v. Williamson, 8 ers v. Peeks, 2 Ala. 648 ; Carter i».
M. h W. 408. But see Clifford v. Tur- Happel, 49 Ala. 539 ; Patten v. Casey,
rell, 1 Y. &C. Ch. R. 138; 9 Jur.683, 57 Mo. 118 ; Ames v. Gilmore, 69
5. C. on appeal. Taylor's Ev. § 1040. Mo. 887; Turbeville v. Gibson, 5
294
CHAP. XII.]
DEEDS MODIFIED BY PAROL.
[§ 1050.
creditors, as well as subsequent innocent purchasers from the
grantor, may show that the deed was a mere gift,^ or that it was
simply an advancement,^ or that the nominal was greater than
the real consideration,^
V. SPECIAL RULES AS TO DEEDS.
§ 1050. To deeds the rules just expressed are eminently ap-
plicable, for the reason that the more solemn are the
... -111. 1. • ■ 1 1 Deeds not
formahties prescribed tor a dispositive document, and open to va-
the more permanent are meant to be the dispositions parol" ^
it makes, the more unjust is its variation by an agency P™°^'
so liable to careless or fraudulent falsification as is unwritten
speech. Hence it is that the courts are uniform in their re-
fusal to admit, except in cases of fraud, or gross concurrent mis-
take, parol evidence to contradict or to vary the terms of a deed
as between the parties.* The same protection is applied to
Heisk. 565 ; Groesbeck v. Seeley, 13
Mich. 329 ; Shotwell v. Harrison, 22
Mich. 418 (quoted supra, § 1043);
Peck V. Vandenberg, 30 Cal. 11 ; Men-
ton V. Adams, 49 Cal. 620.
' Gelpcke v. Blake, 19 Iowa, 263;
Johnson v. Taylor, 4 Dev. N. C. 355 ;
Myers v. Peek, 2 Ala. 648.
2 Gordon v. Gordon, 1 Mete. (Ky.)
285.
« Abbott V. Marshall, 48 Me. 44 ;
McKinster b. Babcock, 26 N. Y. 378 ;
Foster v. Reynolds, 38 Mo. 553 ; Metz-
ner v. Baldwin, 11 Minn. 150. See.
Rose V. Taunton, 119 Mass. 100.
* See cases cited supra, §§ 1014,
1045 ; Jenkins v. Einstein, 3 Biss. 128;
Kimball v. Morrell, 4 Greenl. 368 ;
Pride «. Lunt, 19 Me. 115; Gerry v.
Stimpson, 60 Me. 186 ; Proctor v. Gil-
son, 49 N. H. 62 ; Vermont R. R. v.
HUls, 23 Vt. 681 ; Butler v. Gale, 27
Vt. 739; Childs b. •"Wells, 13 Pick.
121; Harlow v. Thomas, 15 Pick. 66 ;
Raymond v. Raymond, 10 Cush. 134;
Dodge V. Nichols, 5 Allen, 548 ; Howe
V. Walker, 4 Gray, 318 ; Winslow v.
Driskell, 9 Gray, 363 ; Warren v.
Cogswell, 10 Gray, 76 ; Howes v. Bar-
ker, 3 Johns. R. 506 ; Jackson v.
Steamburg, 20 Johns. K. 49 ; Hyer v.
Little, 20 N. J. Eq. 443; Snyder v.
Snyder, 6 Binn. 483; Stine v. Sherk,
1 Watts & S. 195; Caldwell v. Ful-
ton, 31 Penn. St. 475 ; Tobin v. Gregg,
34 Penn. St. 461 ; Timms v. Shannon,
19 Md. 296 ; Richmond R. R. v. Sneed,
19 Grat. 354; TruUinger v. Webb, 3
Ind. 198; Burns v. Jenkins, 8 Ind.
417; New Albany Co. v. Fields, 10
Ind. 187; August v. Seeskind, 6 Coldw.
166; Porter v. Jones, 6 Coldw. 313 ;
Sage V. Jones, 47 Ind. 122 ; Bryan v.
Walsh, 7 111. 557 ; Lindsey v. Lind-
sey, 50 111. 79; Case v. Peters, 20
Mich. 298 ; Beers v. Beers, 22 Mich.
60 ; Orton v. Harvey, 23 Wise. 99 ;
Marshall v. Dean, 4 J. J. Marsh. 583 ;
Dickinson v. Dickinson, 2 Murph. N.
C. 279; Patton v. Alexander, 7 Jones
(N. C.) L. 603; Atkinson v. Scott, 1
Bay, 307; Milling v. Crankfield, 1 Mc-
Cord, 258 ; Williamson u. Wilkinson,
2 Dev. Eq. 376; Bratton v. Clawson,
3 Strobh. 127; Norwood v. Byrd, 1
Rich. (S. C.) 135; Logan v. Bond, 13
295
§ 1052.] THE LAW OF EVIDENCE. [BOOK n.
plans which are annexed to and made part of deeds,^ though in
such case the incorporation must be clearly made out.2 To
deeds also, with peculiar rigor, is the rule applied, that to what
is written no new ingredients can be added by parol.*
§ 1051. Thus where a wife signed a deed with her husband,
which deed contained no release of dower, it was held inadmis-
sible, after his death, to defeat her claim for dower, by proving
that at executing the deed, for five dollars paid her, she agreed to
release her dower.* A covenant of warranty also, against " all the
world claiming under the grantor," cannot be enlarged by parol
into a warranty against all the world in general.^ So, where a
deed for a farm contains no reservation of the growing crop to
the grantor, such reservation cannot be proved by parol.^ So,
where the owner of land, in a conveyance of a portion thereof,
granted " a right of way to be used in common over and upon the
land of the grantor, on the easterly side of the land conveyed,"
parol evidence was held inadmissible to show that the grant was
intended by the grantor to be only a right to reach a portion of
the land conveyed.'^
§ 1052. It has been said that parol evidence is inadmissible to
Certifi- contradict the certificate of acknowledgment of a deed.*
cate of ac- ° , ....
knowiedg- But this conclusion is founded on a petitio principn.
Ga. 192; Hanby v. Tucker, 23 Ga. Eathbun, 6 Barb. 98; Machir v. Mc-
132; Sawyer u. Vories, 44 Ga. 662; Dowell, 4 Bibb, 473.
Phillips V. Costley, 40 Ala. 486; Wade * Lothrop v. Foster, 51 Me. 367.
V. Percy, 24 La. An. 173; Caldwell v. ^ Raymond u. Raymond, 10 Cush.
Layton, 44 Mo. 220 ; Turner v. Tur- 134.
ner,44Mo. 535; King u. Fink, 51 Mo. ^ Austin v. Sawyer, 9 Cow. 39;
209; Westbrooks t). Jeffers, 33 Tex. Wintermute v. Light, 46 Barb. 278;
86. So as to governor's patents. Iowa Smith v. Porter, 39 111. 28 ; Mellvaine
Falls B,. R. V. Woodbury Co. 38 Iowa, v. Harris, 20 Mo. 457. But see contra,
498. Merrill v. Blodgett, 34 Vt. 480; Back-
1 Ren wick v. Renwick, 9 Rich. (S. enstoss v. Stabler, 33 Penn. St. 251;
C.) 50; Way v. Arnold, 18 Ga. 181. Harbold v. Kuster, 44 Penn. St. 392;
2 Chesley v. Holmes, 40 Me. 536. Flynt v. Conrad, Phill. (N. C.) L.
» See supra, § 936 ; Barton v. 190. And see Robinson v. Pritzer, 3
Dawes, 12 C. B. 261 ; Lle-wellyan v. W. Va. 335.
Jersey, 11 M. & W. 183; Noble v. ' Miller v. Washburn, 117 Mass.
Bosworth, 19 Pick. 314 ; Clark v. 371.
Houghton, 12 Gray, 38; Swick v. « Greene v. Godfrey, 44 Me. .25;
Sears, 1 Hill (N. Y.), 17; Acker v. Kerr v. Russell, 69 111. 666.
Phoenix, 4 Paige, 305 ; Eathbun v.
296
CHAP. XII.] ACKNOWLEDGMENTS MODIFIED BY PAROL. [§ 1052.
We cannot logicallv declare that a deed is acknowl- mentopen
11 11 -1 ■ • 1 • '" P*rol
edged, when the acknowledgment is the point m dis- dispute,
pute. The true view is, that the certificate of acknowledgment
is primd facie proof of the facts it contains, if within the offi-
cer's range, but is open to rebuttal, between the parties, by
proof of gross concurrent mistake or fraud. In favor of pur-
chasers for valuable consideration without notice, it is conclu-
sive as to all matters which it is the duty of the acknowledg-
ing officer to certify, if he has jurisdiction. i As to all other
persons it is open to dispute.^ When executed in conformity
1 3 Washb. on Real Prop. (4th ed.)
326; Smith v. Ward, 2 Root, 374j
Jackson v. Schoonmaker, 4 Johns.
K. 161 ; Thurman v. Cameron, 24
Wend. 87 ; Schrader v. Decker, 9
Barr, 14 ; Hale v. Patterson, 51 Penn.
St. 289 ; Williams v. Baker, 71 Penn.
St. 482 ; Duff V. Wynkoop, 74 Penn.
St. 300; Heeter v. Glasgow, 79 Penn.
St. 79; Eyster v. Hathaway, 50 III.
521 ; Wannell v. Kem, 57 Mo. 478 ;
Tatcm V. Goforth, 9 Iowa, 247; Bor-
land k. Walrath, 33 Iowa, 130; Prin-
gle V. Dunn, 37 Wise. 449 ; Dodge v.
Hollingshead, 6 Minn. 25 ; Edgerton
V. Jones, 10 Minn. 427 ; Fisher v.
Meister, 24 Mich. 447; Hourtienne v.
Schnoor, 33 Mich. 274 ; Johnson v.
Pendergrass, 4 Jones L. 479 ; Ford
V. Teal, 7 Bush, 156; Woodhead v.
Foulds, 7 Bush, 222 ; Hughes v. Col-
man, 10 Bush, 246 ; Bledsoe v. Wiley,
7 Humph. 507; Westbrooks u. Jeffers,
33 Tex. 86; Landers u. Bolton, 26
Cal. 406.
As English authorities to this effect,
see Doe v. Lloyd, 1 M. & Gr. 671,
684; Kinnersley v. Orpe, 1 Doug. 58 ;
and other cases cited and criticised
supra, § 741.
The officer may himself be exam-
ined as to the competency of the par-
ity. Truman v. Lore, 14 Ohio St. 151.
As to effect of acknowledgments as
entitling a document to be received
in evidence, see supra, § 740-1.
As to acknowledgment of sheriff's
deeds, see supra, §§ 981-2.
^ In Pennsylvania we have the fol-
lowing : —
" Under the Act of the 24th Feb-
ruary, 1770, 1 Sm. 307, establishing a
mode by which husband and wife may
convey the estate of the wife, the of-
ficial certificate of acknowledgment is
the only evidence that the wife has
acknowledged the deed in the form
required by the statute, in order to
make a valid conveyance of her inter-
est in real estate, and, except in cases
of fraud and duress, it is conclusive
of every material fact appearing on
its face. But though it is not conclu-
sive as between the parties in cases of
fraud and imposition, or of duress,
and may be overcome by parol evi-
dence, it is conclusive as to subse-
quent purchasers for a valuable con-
sideration without notice. Schrader
V. Decker, 9 Barr, 14 ; Louden v.
Blythe, 4 Harris, 532 ; Louden i'.
Blythe, 3 Casey, 22 ; Michener v.
Cavender, 2 Wright, 334 ; Hall v.
Patterson, 1 P. F. Smith, 289.
" But it is conclusive of such fact
only as the magistrate is bound to re-
cord and certify, not of facts which
he is not required to certify under the
provisions of the statute. The gen-
eral rule in regard to certificates given
by persons in oflScial station is, that
the law never allows a certificate of a
297
I 1052.]
THE LAW OF EVIDENCE.
[book ir.
"with statute, it is to be regarded as a judicial act ; but even treat-
ing an acknowledgment as a judicial act, it follows that it may-
be collaterally impeached by proof not only of fraud and want
mere matter of fact, not coupled with
any matter of law, to be admitted in
evidence. If the person was bound
to record the fact, then the proper
evidence is a copy of the record duly
authenticated. But, as to matters
which he was not bound to record, his
certificate, being extra-official, is mere-
ly the statement of a private person,
and will, therefore, be rejected. So,
where an officer's certificate is made
evidence of facts, he cannot extend
its effects to other facts by stating
those also in the certificate ; but such
parts of the certificate will be sup-
pressed. 1 Greenleaf's Evid. § 498 ;
Omichund v. Barker, Willes E. 549,
550 ; Wolfe v. Washburn, 6 Co wen,
261 ; Johnson v. Hocker, I Dall. 406;
3 Cowen & Hill's Evidence, note 701,
p. 1044.
" As the magistrate is not required
by the act to certify that the wife was
of full age when she acknowledged
the deed, she is not concluded by his
certificate of the facts from showing
that she was a minor when she signed
and delivered it." Williams, J., Wil-
liams V. Baker, 71 Penn. St. 481.
In Heeter v. Glasgow, 79 Penn. St.
79, the rule is thus stated by Paxsou,
J. : —
" The certificate of a justice of the
peace of the acknowledgment of a
deed or mortgage is a judicial act. It
is conclusive of the facts certified to
in the absence of fraud or duress.
This is the current of all the author-
ities in this state. Jamison i'. Jami-
son, 3 Whart. 457 ; Hall i>. Patterson,
1 P. F. Smith, 289; McCandless v.
Engle, Ibid. 309. In the case first
cited it was held that parol evidence
of what passed at the time of the ac-
298
knowledgment was not admissible for
the purpose of contradicting the cer-
tificate, except in cases of fraud and
imposition. In a number of cases
parol evidence has been freely admit-
ted to overthrow the certificate, as in
Michener v. Cavender, 2 Wr. 337;
Louden v. Blythe, 4 Harris, 541 ; and
Schrader v. Decker, 9 Barr, 14. But
in all these cases gross fraud and im-
position had been practised, affecting
the acknowledgment itself. There is
another class of cases in which parol
evidence has been admitted to show
facts dehors the certificate, as in Keen
V. Coleman, 3 Wr. 299, where a mar-
ried woman fraudulently represented
that she was a widow.
" The true rule deducible from the
authorities is : that the certificate of
the justice of the acknowledgment of
a deed or mortgage is a judicial act,
and, in the absence of fraud or du-
ress, conclusive as to the facts therein
stated. A purchaser bond fide and
without notice of the fraud is pro-
tected against it, but as to all other
persons parol evidence may be admit-
ted to show fraud or duress connected
with the acknowledgment."
Where a deed when offered in evi-
dence appears to be duly attested and
acknowledged, the presumption is that
it was attested at the time of its exe-
cution; and this presumption can be
overcome only by clear and satisfac-
tory evidence to the contrary, such as
is required for the reformation or re-
scission of a deed or other instrument
on the ground of mistake. Pringle v.
Dunn, 37 Wise. 449.
In Kerr v. Russell, 69 111. 666, the
court went so far as to hold that on
the single testimony of the party an
CHAP. XII.] ACKNOWLEDGMENTS MODIFIED BY PAKOL. [§ 1054.
of jurisdiction, but of gross patent violation of the ordinary rules
of justice.^
§ 1053. When an acknowledgment is defective in any of its
averments, these may be supplied by parol proof.^ It is enough
if there be a substantial compliance with the statute.^ A defect'
in the wife's acknowledgment in a suit not involving the wife's
dower, has been held in Michigan not to exclude the deed when
offered to prove the husband's transfer of his title.* And in New
York, where a certificate of acknowledgment to a deed averred
that the identity of the person acknowledging was proved to the
officer by a witness named, who, being sworn, stated his place of
residence and that he knew the persons proposing to acknowledge
to be the identical ones described in, and who executed the deed,
jt was ruled that the certificate was sufficient within the record-
ing statute, it being the opinion of the court that it was not nec-
essary to specify in the certificate that the officer had satisfactory
evidence of the identity of the person acknowledging, and that
the facts stated showed that he had such evidence.^
The certificate of the officer taking the acknowledgment, it
should be added, is evidence of its own genuineness, when the
officer is recognized by the local law as competent for the pur-
pose.^
§ 1054. We have just seen that the sanctity attached to deeds
has secured for them a peculiarly vigilant application of the rule
acknowledgment could not be at- 478, laying down a stricter rule as to
tacked. examination of married women.
' Supra, § 495. 4 Conrad v. Long, 33 Mich. 78.
^ Carpenter v. Dexter, 8 Wall. 513; As to particular exceptions to ao-
though see Johnston v. Haines, 2 knowledgments, see Morton v. Smith,
Ohio, 55 ; Ennor v. Thompson, 46 2 Dill. 316; Woodruff v. McHarry,
111. 214; Graham v. Anderson, 42 56 111. 218; Crispen v. Hannavan.
111. 514; Borland v. Walrath, 33 Iowa, 50 Mo. 415 ; Callaway v. Fash, 50 Mo.
130. See Harty v. Ladd, 3 Oregon, 420.
353. 6 Hitter v. Worth, 1 N. Y. S. C.
» Carpenter 1). Dexter, 8 Wall. 513; (T. & C.) 406, reversed; Ritter r.
Thayer v. Torrey, 37 N. J. L. 339; Worth, 58 N. Y. 628.
Simpson «. Montgomery, 25 Ark. 365; « 3 Washb. Real Prop. (4th ed.),
Calumet v. Russell, 68 111. 426 ; Dial 326; Tracy v. Jenks, 15 Pick. 468 ;
V. Moore, 51 Mo. 589; Hughes v. Col- Thurman v. Cameron, 24 Wend. 87;
man, 10 Bush, 246 ; Smith v. Elliott, People v. Snyder, 41 N. Y. 402 ;
39 Tex. 201. See Hardin v. Kirk, Keichline v. Keichline, 54 Penn. St.
49 111. 153 ; Wannell v. Kem, 57 Mo. 76.
299
§ 1054.] THE LAW OF EVIDENCE. [BOOK n.
that, between parties, a written contract is not to be varied by
Between parol. The very sanctity, however, that invites this
parties, protection is an additional reason why there should be
deeds may '■ ^ ^ ■' .
be varied peculiar precautions to keep deeds from being used as
ambiguity the instruments of fraud, either actual or constructive,
rau . jjgjjjjg j^ jg ^.jjg^^ ^j^g courts have united in holding that
evidence is admissible to show that a deed was in fact not ex-
ecuted, or that its execution was only conditional ; ^ that its
execution was procured by fraud or duress,^ or by concurrent
mistake ; ^ that it was never delivered, or delivered only contin-
gently ; * or that its purpose was illegal.^ When a deed, also,
uses ambiguous terms, these terms may be explained by parol ; *
and, for the purpose of bringing out the true meaning, extrinsic
circumstances may be shown, and proof introduced of all objects
to which ambiguous terms may apply, so that such terms may
be explained.'' In deeds, as well as in other dispositive writings,
erroneous particulars may be rejected, even between the parbies,
as surplusage ; ^ and the parties, when there is a latent ambiguity
concerning them, may be identified by parol.^ Even usage, in
cases of doubtful terms, may be introduced to elucidate such
terms ; ^^ and a party to a deed may be examined, in cases of
doubt, to explain his own intent.^^ So far as concerns consider-
ation, the most solemn deed is open to collateral attack; and the
recital of consideration existing, while it precludes the grantor
from disputing generally the fact that some consideration ex-
isted, does not prevent either him or the grantee from explaining,
though in variance from the language used, what the considera-
tion really was.^^
The limitations, also, which have been expressed as to contracts
are to be strictly applied to deeds. Thus, all prior conferences
between the parties are merged in and extinguished by a deed ; ^^
yet in equity, if not at law, a deed may be rescinded, or even
reformed, on parol proof of concurrent mistake or fraud.^* It is
1 Supra, § 927. 8 Supra, § 945.
2 Supra, § 931. o Supra, § 950 et seq.
' Supra, § 938. lo Supra, § 961.
* Supra, § 930. " Supra, § 955.
« Supra, § 935. la Supra, § 1042.
» Supra, § 937. is Supra, § 1014.
' Supra, §§ 942-6. " Supra, § 1019.
300
CHAP. XII.J VARIATION OF BILLS AND NOTES. [§ 1058.
true that under the statute of frauds a deed cannot in this way
be ordinarily made to pass a larger interest in land;^ but even
under that statute equity will sustain such a reformed deed, when
there has been, on the one side, a performance of the contract.'^
And recitals of deeds, while inoperative (except to prove pedigree
or ancient reputation) as to strangers, may be, in so far as they
are general, open to variation and explanation by the parti 3s.^
§ 1055. We have already seen that a bond fide pur- ueed may
chaser frdin a party may attack a prior fraudulent con- by ta?*"^
veyance of such party. The same right may be -ex- fi^v^^- ^
•'_ 1. J o J chasers and
ercised by a party bond fide purchasing the property judgment
under an execution.*
§ 1056. A mortgage may be impeached for fraud on the same
principles that have just been stated as applicatory to Mortgage
deeds.^ When so impeached, the mortgagee may show peached""
other considerations than those recited in the mort- for fraud,
gage.® But between the mortgagor and the mortgagee, at com-
mon law, the mortgagor cannot set up the falsity of the con-
sideration as a defence.''
§ 1057. A deed, whether of realty or personalty, is subject to
the rules we have already laid down in reference to Deed may
contracts generally, that a conveyance, absolute on its to be
face, may be shown to be a mortgage, or to be in trust. '"^ "
Ordinarily this is done by proceedings in equity ; but in states
where equity is administered through common law forms, a rem-
edy may be had at common law.^
VI. SPECIAL EULES AS TO NEGOTIABLE PAPER.
§ 1058. Additional reasons come in to apply with distinctive
stringency to negotiable paper the rule, that a docu- Negotiable
o J o r r _ paper not
ment cannot, when sued on contractually, be varied susceptible
by parol proof. It would destroy business if those variation.
1 Supra, § 1024. S. C. 26 N. Y. 378 ; Foster v. Key-
' Supra, § 904. nolds, 38 Mo. 553. See Metzner v.
• Supra, § 1040. Baldwin, 11 Minn. 150.
* See supra, § 1047 et seq. ' Meada v. Lansingh, Hopk. (N.
' Clark ti. Houghton, 12 Gray, 38. T.) 124.
» Abbott V. Marshall, 48 Me. 44; ' See supra, §§ 1031-5.
McKinster v. Babcock, 37 Barb. 265;
301
§ 1058.]
THE LAW OF EVIDENCE.
[book II.
who put their names to such paper could set up private under-
standings by which their liability could be 'qualified. Hence it
is, that for the purpose of qualifying such liability, when nego-
tiable paper is sued on, parol evidence is not ordinarily admis-
sible.^ The only exception is when it is sought, as between the
parties to the paper, to prove by parol that the paper was exe-
cuted or moulded by fraud, or by accident or mistake which
it would be fraudulent to take advantage of .^ Other more infor-
1 Johnson v. Roberts, L. R. 10 Ch.
Ap. 505; Brown v. Wiley, 20 How.
442 ; SpofFord v. Brown, 1 McArthur,
223 ; Warren v. Starrett, 15 Me. 443;
Crocker v. Getchell, 23 Me. 392; God-
dard v. Hill, 33 Me. 582; Fairfield v.
Hancock, 34 Me. 93; City Bank v.
Adams, 45 Me. 455; Porter v. Porter,
61 Me. 376; Rose v. Learned, 14
Mass. 154; Billings v. Billings, 10
Cush. 178; Prescott Bk. r. Caverly, 7
Gray, 217; Wright v. Morse, 9 Gray,
337; Davis v. Pope, 12 Gray, 193;
Davis V. Randall, 115 Mass. 547; Al-
sop V, Goodwin, 1 Root, 196; Buckley
V. Bentley, 48 Barb. 283; Ely v. Kil-
born, 5 Denio, 514; Halliday v. Hart,
30 N. Y. 474 ; Meyer v. Beardsley, 30
N. J. L. 236 ; Mason v. Graff, 35 Penn.
St. 448 ; Anspach v. Bast, 52 Penn.
St. 356; Alter v. Langebartel, 5
Phila. 151; Coughenour v. Suhre, 72
Penn. St. 464; Wharton v. Douglass,
76 Penn. St. 276; Wilmer v. Harris,
5 Har. & J. 1 ; Tucker v. Talbot, 15
Ind. 114; McClintic v. Cory, 22 Ind.
170; Campbell v. Bobbins, 29 Ind.
271 ; Fow V. Blackstone, 31 111. 638;
Racine Bank V. Keep, 13 Wise. 209;
Daniel t>. Ray, 1 Hill S. C. 32 ; Hun-
ter V. Graham, 1 Hill S. C. 370; Bart-
lett V. Lee, 33 Ga. 491; McLaren c.
Bk. 52 Ga. 131 ; Henderson v. Thomp-
son, 52 Ga. 149; Holt v. Moore, 5
Ala. 521; Standifer v. White, 9 Ala.
527; West v. Kelly, 19 Ala. 353;
Cowles V. Townsend, 31 Ala. 133;
302
Heaverin v. Donnell, 15 Miss. 244 ;
Inge V. Hance, 29 Mo. 399 ; Borden v.
Peay, 20 Ark. 293; Daniel on Neg.
Inst. § 80.
» Forsythe v. Kimball, 91 U. S. (1
Otto), 291.
" Without proof or allegation of
fraud, it has frequently been held that
such evidence is not admissible to
change or contradict the terms of a
promissory note. Hoare et al. v. Gra-
ham, 3 Camp. 56 ; Moseley, Assignee,
V. Hanford, 10 B. & C. 729; Free ».
Hawkins, 8 Taunt. 92 ; Hill v. Gaw,
4 Barr, 493; Anspach v. Bast, 2 P. F.
Smith, 356." Mercur, J., Wharton
V. Douglass, 76 Penn. St. 276. That
fraud may be proved for this purpose,
see Brewster v. Brewster, 38 N. J. L.
119.
"The offer rejected by the court
was ' to prove that the note was not to
be payable until defendant got the
money from the bridge.' The objec-
tion was that the terms of the note
could not be contradicted. The note
was in express terms payable at a stip-
ulated time. The offer was therefore
clearly incompetent without showing
fraud or mistake, or that there was a
subsequent agreement made on a suffi-
cient consideration. The deficiencies
in a written agreement ' which may be
supplied by parol evidence, are not
such as contradict or vary the express
terms of the writing. The latter can
be shown only under an offer to prove
CHAP. XII.] VARIATION OF BILLS AND NOTES.
[§ 1058.
mal instruments, as is elsewhere shown, may be modified by
parol, or may be so restrained as to take effect only contin-
gently.^ Not so is it with negotiable paper, whose efficiency
cannot be affected by such testimony, except as to parties with
notice, under limitations to be presently given.^ Hence in an ac-
tion by a savings bank upon a promissory note, against one sign-
ing as surety thereon, parol evidence that the defendant signed
the note solely at the request of the treasurer of the bank, be-
cause of a rule thereof as to the number of the names required
upon a loan, and upon the assurance that the bank would not
look to him for payment, cannot be received.^ Even incidents
which to ordinary contracts may be annexed by parol evidence,
cannot be so annexed to negotiable paper. Thus, as against
third parties without notice, it is inadmissible to prove by parol
that the party signing a note is not principal but agent ; * or that
a note is only payable on contingencies ; ^ or that a note payable
generally is payable at a particular bank ^ (though an agreement
between the parties to the suit may be shown relative to the
place where payment is to be demanded, the note being silent on
fraud and mistake at the time of the
execution of the writing. The defi-
cienees spoken of in some of the cases
are those only which are independent
of the writing, and arise from the fact
that the parties did not put all of their
agreement in writing, but left parts of
their arrangement unprovided for by
it ; and are also not inconsistent with
the terms of the writing. We think
the court committed no error in reject-
ing the offer in the form it was pre-
sented. The cases are collected in
Martin v. Berens, 17 P. F. Smith,
462." Agnew, J., Coughenour v.
Suhre, 71 Penn. St. 464.
See, to same effect, Hollenbeck v.
Shutts, 1 Gray, 431; Allen v. Fur-
bish, 4 Gray, 431 ; Billings v. Billings,
10 Cush. 178.
1 See supra, §§ 927, 934.
* Cunningham v. Ward well, 12 Me.
466; Boody v. McKenney, 23 Me.
617; Hatch v. Hyde, 14 Vt. 25; Trus-
tees u. Stetson, 5 Pick. 506; Tower v.
Richardson, 6 Allen, 351 ; Currier v.
Hale, 8 Allen, 47; Erwin v. Saunders,
1 Cow. 249; Woodward v. Foster, 18
Grat. 200; Graves v. Clark, 6 Blackf.
183; Miller v. White, 7 Blackf. 491;
Foy V. Blackstone, 31 111. 538 ; Wren
V. Hoffman, 41 Miss. 616; Jones v.
Jeffries, 17 Mo. 577 ; Smith v. Thom-
as, 29 Mo. 307.
" Barnstable Savings Bank v. Bal-
lou, 119 Mass. 487; but see cases
cited nfra, § 1061.
* See infra, § 1060 et seq.
* Woodbridge v. Spooner, 5 B. &
Aid. 333 ; Free v. Hawkins, 8 Taunt.
92; 1 J. B. Moore, 635; Moseley ».
Hanford, 10 B. & C. 729 ; Foster v.
Jolly, 1 Cromp., M. & E. 703; Sears
V. Wright, 24 Me. 278; Underwood
V. Simonds, 12 'Mete. 275 ; Litchfield
V. Falconer, 2 Ala. 280; McClanaghan
V. Hines, 2 Strobh. 122.
« Patten v. Newell, 30 Ga. 271.
303
§ 1059.] THE LAW OF EVIDENCE. [BOOK H.
this point) ; ^ or that a note is payable otherwise than in legal
currency, unless so expressed in the note itself ; ^ though evi-
dence has been received to show the business meaning of " cur-
ency," ^ and as between the parties or those infected with no-
tice, it is admissible to show that a local currency is intended
to be the medium of payment.*
§ 1059. So far as concerns the immediate contracting parties,
„, , . a blank indorsement exhibits at the best a contract
Blank in-
dorsements at short hand. It is true that as to bond fide holders
plained by of paper regularly negotiated, it establishes a liability
^"° ■ indisputable if the signature be genuine. As to hold-
ers with notice, however, the liability may be modified by parol,
by proof of fraud, or of facts which make it inequitable for the
plaintiff to recover.^ On the broad question here involved, there
is a strong current of authoritj' to the effect that an indorsement
in blank, being but a short-hand expression of a contract, may
be expanded and explained, between the parties, by parol.® On
the other hand, we have authorities to the effect that an indorser
cannot show, against his indorsee, that it was agreed that the
indorsement was to be without recourse, or for other reasons,
inoperative.'^ The cases may, in some measure, be reconciled
1 Brent v. Bank, 1 Peters, 92; Mc- Downer, 20 Vt. 355 ; Barker v. Pren-
Kee V. Boswell, 33 Mo. 567. tiss, 6 Mass. 430; Clapp ». Rice, 13
2 McMinn v. Owen, 2 Ball. 173; Gray, 403: Smith o. Barber, 1 Root,
Lang V. Johnson, 24 N. H. 302; Brad- 207; Perkins c. Catlin, 11 Conn. 213;
ley w. Anderson, 5 Vt. 152; Gilman Herrick i>. Carman, 10 Johns. 224;
V. Moore, 14 Vt. 457; Woodin ». Fos- Bruce v. Wright, 5 Thorn. & C. 81;
ter, 16 Barb. 146; Hau- v. LaBrouse, Love v. Wall, 1 Hawks, 313; Gomez
10 Ala. 548 ; Smith v. Elder, 15 Miss. b. Lazarus, 1 Dev. Eq. 205 ; Davis v.
507; Cockrill v. Kirkpatrick, 9 Mo. Morgan, 64 N. C. 570; Mendenhall
688 ; Baugh v. Ramsey, 4 T. B. Monr. v. Davis, 72 N. C. 150.
155; Noe v. Hodges, 3 Humph. 162; « Byles on Bills (Shars. ed. 267),
Fields V. Stunston, 1 Coldw. 140; Self relying on Kidson !'. Dilworth, 5 Price,
V. King, 28 Tex. 552. 564 ; Castrique v. Battigieg, 10 Moore
« Pilmer v. Bank, 16 Iowa, 321. P. C. 94; and see, to same effect,
See Cowles v. Garrett, 30 Ala. 341. Smith «. Morrell, 54 Me. 49; Susque-
Supra, § 948. hanna Bk. v. Evans, 4 Wash. C. C.
* Thorington v. Smith, 8 Wall. 1, '480; Bruce v. Wright, 3 Hun. 548;
12. Supra, § 948. Ross v. Espy, 66 Penn. St. 481.
s Infra, § 1060. Phillips w. Preston, ' Free v. Hawkins, 8 Taunt. 92;
5 How. 278 ; Susquehanna Bridge Co. Hoare v. Graham, 8 Camp. 57 ; Bank
V. Evans, 4 Wash. C. C. 480 ; Smith U. S. i'. Higginbottom, 9 Pet. 51 ; Pres-
V. Morrill, 54 Me. 48; Sylvester v. cott Bk. u.Caver]y,7Gray, 217; Howe
304
CHAP. XII.J PAEOL VARIATION OF BILLS AND NOTES. § 1059.
by holding that while the indorsement cannot be contradicted
by extrinsic proof, it is admissible to show, in our present prac-
tice, any facts which would make it inequitable for the plaintiff
to recover. Thus, not only may failure of consideration, as we
have seen, be inquired into between the parties,^ but the indorser
may show that his indorsement was obtained in such a way as
to make its enforcement a fraud ; ^ and that it was made in trust
for special ends, and cannot be sued on absolutely.^
V. Merrill, 5 Cush. 80; Dale v. Gear,
38 Conn. 15; Bank of Albion v. Smith,
27 Barb. 489; Woodward v. Foster,
18 Grat. 205 ; Campbell ». Kobins, 29
Ind. 271.
1 Supra, § 1044. In addition to the
cases already cited, see Denton v. Pe-
ters, L. E. 5 Q. B. 457; Woodward v.
Foster, 18 Grat. 206.
= Dale V. Gear, 38 Conn. 15 ; Ben-
ton V. Martin, 52 N. T. 570; Hill v.
Ely, 5 S. & R. 363.
' See Daniel's Neg. Inst. § 721,
where the questions in the text are
discussed with much learning and
ability.
From a learned Maine judge we
have the following review of cases : —
"In Brewster B. Dana, 1 Root, 2^7,
it is said by the court that a blank in-
dorsement has no certain import until
filled up. In Barker v. Prentiss, 6
Mass. 430, the indorsement was in
blank, which implies primd facie an
absolute transfer of the note, but the
court held that parol evidence was
admissible to show what the real con-
tract was, and that the note was in-
dorsed for collection only. The same
doctrine was advanced in Herrick v.
Carman, 10 Johns. 224. Same in
Lawrence v. Stonington Bank, 6
Conn. 521. In Boyd v. Cleveland, 4
Pick. 525, the plaintiff was permitted
to show by parol evidence that, at the
time of the indorsement of the note
to him, the defendant agreed to pay
VOL. n. 20
it if the maker did not, and that the
implied conditions requiring demand
and notice were dispensed with. Same
in this state. FuUerton v. Rundlett,
27 Maine, 31.
" In Weston v. Chamberlin, 7
Cush. 404, the precise question was
determined which is raised in this
case ; whether a prior indorser of a
promissory note can maintain an ac-
tion for contribution against a subse-
quent indorser, on proving that, by an
oral agreement between the indorsers,
at the time of indorsing the note, they
were, as between themselves, co-secu-
rities ; and the court held that he
could. The same doctrine was af-
firmed in Clapp V. Rice, 13 Gray, 403 ;
Also in Phillips o. Preston, 5 How.
U. S. R. 278 ; 16 Curtis, 396
" It is idle to attempt to reconcile
these decisions with the doctrine that
a blank indorsement is in effect a con-
tract in writing not to be varied by
parol, and that in these cases it is not
varied. In all these cases the con-
tracts implied in the blank indorse-
ments are varied, in fact swallowed
up and extinguished, so far as they
are in conflict, by the express verbal
agreements. So far as both are alike,
or not in conflict, both are permitted
to stand. But when they are in con-
flict, the implied contract yields, and
the express contract, whether written
or verbal, prevails.
" In Taunton Bank v. Richardson,
305
§ 1060.]
THE LAW OF EVIDENCE.
[book n.
§ 1060. Generally as between parties with notice, or parties
taking the paper out of the ordinary course of business, agree-
5 Pick. 436, the plaintiff offered to
prove that by a verbal agreement,
made prior to the indorsement of the
note in suit, demand and notice had
been dispensed with. This was re-
sisted upon the ground that it would
vary the written contract created by
the blank indorsement. The answer
of the court was, ' that the evidence
did not attempt to change the con-
tract, but to show that a condition
beneficial to the defendants had been
waived by them ; that they had agreed
to dispense with notice, not that by
the contract itself notice would not be
necessary.' It is not surprising that
legal minds should not rest satisfied
with the logic of this decision. If by
a previous or contemporaneous verbal
agreement an important condition of
a written contract is waived, is not
the written contract varied by the
verbal agreement? And is not the
rule violated, which holds that all pre-
vious and contemporaneous negotia-
tion and discussion on the subject are
merged or extinguished by the writ-
ing, and cannot be shown to vary it ?
If not, then one condition after another
might in this way be waived, until
nothing would be left of the written
contract, and yet the rule referred to
would not be violated. Conditions in
written contracts may unquestionably
be waived by subsequent verbal agree-
ments, without violating any rule of
law, but not by previous or contem-
poraneous ones, — a distinction which
seems to have been overlooked in the
case just noticed.
" The only rational ground on which
to justify the admission of evidence of
a verbal agreement to control the con-
tract implied by law in a blank in-
dorsement is that laid down by Mr.
306
Justice Washington, in Susquehanna
Bridge Co. v. Evans, 4 Wash. C. 0.
480 (U. S. D.p. 396, § 2132), namely,
' The reasons which forbid the admis-
sion of parol evidence, to alter or ex-
plain written agreements and other
instruments, do not apply to those
contracts implied by operation of law,
such as that which the law implies in
respect to the indorser of a note of
hand.'
" The evidence is offered in con-
formity with the familiar rule, that
the law does not imply a contract,
where an express one has been made.
'Expressum facit, cessare tacitum.'
Perkins v. Catlin, 11 Conn., on page
226, a case in which this question is
very fully and ably discussed, and the
conclusion reached that a blank in-
dorsement is not a contract in writing;
that the law implies a contract, as in
a great variety of other cases, simply
because the parties have failed to
make an express one, and because
otherwise the indorsement would be
meaningless ; that a blank indorse-
ment is only prima facie evidence of
the contract implied by law; and that
it is competent, as between the parties
to the indorsement, to prove, by parol
evidence, the agreement which was in
fact made, at the time of the indorse-
ment." Walton, J., in Smith v. Mor-
rill, 64 Me. 49. See to same general
effect, Downer v. Chesebrough, 36
Conn. 39 ; Ross v. Espy, 66 Penn. St.
481.
In North Carolina we have the fol-
lowing ruling : —
" There is no written contract to
be altered ; the whole (except the sig-
nature, which by itself does not make
a contract) exists in parol, and must
be established by such proof. It may
CHAP. XII.] PAROL VARIATION OF BILLS AND NOTES. [§ 1060.
ments annexing modifying incidents to the paper or to Relations
the liabilities of the maker or indorsers, may be shown with notice
by parol.i Consideration, also, as between the par- vamdV
be admitted, and the authorities seem
that way, that when a person, other
than the payee or indorsee of a note,
writes his name across the back of it,
after it has been delivered by the
maker, and not as a part of the orig-
inal transaction, and delivers it for
value to another, the law presumes
that he intended to become a guarantor
of the note. But this presumption is
not one of law, but of fact merely,
and may be rebutted. In Love v.
Wall, 1 Hawks, 313, a second indorser
of a promissory note was allowed, in
defence of an action brought against
him by the first indorser, to prove an
agreement different from what the law
presumes from the order of their
names on the back of the instrument,
and that in fact they were jointly lia-
ble as sureties for the maker. In
Gomez v. Lazarus, 1 Dev. Eq. 205, it
was taken as clear that the acceptor
of a bill of exchange, as between him
and an indorser, might prove that
they were joint sureties for the drawer.
In Davis v. Morgan, 64 N. C. Rep. 570,
the payee of a note who had written
his name in blank across the back was
permitted to prove that such signature
was not intended as an indorsement,
but as a receipt of payment from the
maker. In Sylvester v. Downer, 20
"Vt. 355, the court held that by an in-
dorsement in blank the defendant be-
came presumptively bound as a joint
promisor. But Redfield, J., adds,
'But the signature being blank, he
may undoubtedly show that he was
not understood to assume any such
obligation.' See to the same effect,
Clapp II. Rice, 13 Gray, 403. See,
also, Perkins v. Catlin, 11 Conn. 213,
and numerous other cases cited in a
note on page 121 of 2 Parsons on
Notes & Bills." Rodman, J., in Men-
denhall v. Davis, 72 N. C. Rep. 154;
but see Norton v. Coons, 6 N. Y.
33.
It is of course inadmissible for an
indorser, as against a bona fide holder,
to show, as a defence, that the in-
dorsement, by a parol agreement, was
to be without recourse. See Daniel's
Neg. Inst., ut supra; Skinner v.
Church, 36 Iowa, 91.
1 Barker v. Prentiss, 6 Mass. 430 ;
Eingman v. Kelsie, 3 Cush. 339; Riley
V. Grerrish, 9 Cush. 104 ; Rohan v.
Hanson, 11 Cush. 44 ; Crosman v.
Fuller, 17 Pick. 171 ; Creech v. By-
ron, 115 Mass. 324; Case v. Spaulding,
24 Conn. 578 ; Scott v. Ocean Bank,
23 N. Y. 239; Milton w. R. R. 4 Lan-
sing, 76 ; Bookstaver v. Jayne, 3
Thomp. & C. (N. Y.) 397 ; Watkins
V. Kirkpatrick, 26 N. J. L. 84 ; Petrie
V. Clark, 11 S. & R. 377 ; Walker v.
Geisse, 4 Wh. 258; Depeau v. Wad-
dington, 6 Wh. 220; S. C. 2 Am.
Leading Cases, 155 ; Hoffman v. Mil-
ler, 1 Ibid. 676; Kirkpatrick v. Muir-
head, 16 Penn. St. 123; National
Bank v. Perry, 2 Weekly Notes, 484;
Haile v. Peirce, 32 Md. 327 ; Peck
V. Beckwith, 10 Ohio St. 497. See
Campbell v. Tate, 7 Lans. 370 ; Har-
ris V. Pierce, 6 Ind. 162; Rawlings v.
Fisher, 24 Ind. 52 ; Collins v. Gilson,
29 Iowa, 61 ; Harrison v. McKim, 18
Iowa, 485 ; Catlin v. Birchard, 13
Mich. 110 ; Carhart v. Wynn, 22 Ga.
24 ; Dixon v. Edwards, 48 Ga. 142 ;
Branch Bank v. Coleman, 20 Ala. 140;
O'Leary v. Martin, 21 La. An. 389 ;
Smith V. Paris, 53 Mo. 274; Clarke
V. Scott, 45 Cal. 86 ; Bissenger v.
Guiteman, 6 Heisk. 877.
307
§ 1061.J THE LAW OF EVIDENCE. [BOOK n.
parol, and ties, mav be disputed.^ As parties, considered ^s such
so of con- .,. ,,
sideration. in relation to each other, are the drawer and acceptor
of a bill ; the drawer and payee of a biU ; the maker and payee
of a note ; and the indorser and immediate indorsee of a bill or
note.2 Want of consideration, however, cannot be set up by
the maker of a note against an indorsee ; nor by a prior but not
his immediate indorser against an indorsee ; nor by the acceptor
of a bin against the payee, as a rule ; the reason being that these
relations are too remote.^ '
§ 1061. It is elsewhere declared that on suing on a written
Eeal par- Contract, an undisclosed party may be shown by parol
ties may be ^g be principal, though not in such a way as to cut off
out by the defendant from any defence he might otherwise
have against the agent. It is also shown that a plain-
tiff, suing a nominal party to a contract, may, in order to charge
an undisclosed principal, prove by parol the existence of such
principal, but that such nominal party cannot introduce such
proof in order to relieve himself from liability.* There is no
reason why the same distinction should not apply to negotiable
paper, as between parties with notice.® It is clear that an un-
disclosed principal may by parol admission and guarantee make
himself liable on his agent's note.^ So where it is doubtful, on
the face of the paper, whether principal or agent is liable, parol
evidence, going to the understanding of the parties, may be re-
ceived to solve the doubt.^ It may also be proved by parol
^ Supra, § 1044. Story on Bills, relationship of the parties may be
§ 188; Abbott v. Hendricks, 1 M. & brought out by parol, so as to show
G. 795 ; Barnet ». Offerman, 7 Watts, that they are not privy to each other.
130 ; Jones «. Horner, 60 Penn. St. * See supra, § 952.
214; Clarke v. Dederick, 31 Md. 148; « Jones ii. Littledale, 6 A. & E.
Jones V. Buflfum, 50111. 277. 486 ; Hoffman v. Bank, 12 Wall. 181;
^ See Daniels on Neg. Inst. § 174 ; Chandler v. Coe, 54 N. H. 561. See
Easton v. Pratchett, 1 C, M. & R. Daniels on Neg. Paper, § 418.
798 ; Holiday u. Atkinson, 5 B. & C. « Lindus v. Bradwell, 5 C. B. 583 ;
601 ; Abbott v. Hendricks, 1 M. & Brown v. Parker, 7 Allen, 337 ; cases
Gr. 791 ; Clement v. Reppard, 15 cited supra, §§ 951-2.
Penn. St. HI. ' Byles on Bills, 27, note; Dow v.
« Story on Bills, § 188; 1 Parsons Moore, 47 N. H. 419; Johnson v.
N. & B. 176 ; Daniels on Neg. Inst. Smith, 21 Conn. 627; Early v. Wil-
174; Hoffman v, Bk. 12 Wall. 181. kinson, 9 Grat. 68; Musser i>. John-
See Hunter v. Wilson, 4 Exch. 489. son, 42 Mo. 78 ; Campbell v. Nichol-
But, as will presently be seen, the son, 12 Rob. (La.) 433.
308
CHAP. XII.] PAROL VARIATION OF BILLS AND NOTES. [§ 1061.
that a party sued on a note was known by the plaintifE to have
signed merely in a representative capacity ; and in such case, it
being proved that such person acted solely as agent for another,
he will not be held liable on the note.^ A fortiori, an agent in-
dorsing a note to his principal cannot be held liable on his in-
dorsement to his principal, when the indorsement was made by
hi^, and was known by the plaintiff to have been so made, sim-
ply for the purpose of passing the note to the principal.^ But
an agent, signing without any indication of agency on the paper,
cannot evade his liability to bond fide holders without notice by
proof that he was only agent.^ And it may also be shown by
^ Kidson v. Dilworth, 5 Price, 364 ;
Dowman v. Jones, 7 Q. B. 103 ; Wil-
liams V. Robbins, 16 Gray, 77 ; Pease
V. Pease, 35 Conn. 131 ; Mott v. Hicks,
1 Cowen, 513 ; Itliles v. O'Hara, 1 S.
& R. 32 ; Sharpe v. Bellis, 61 Penn.
St. 69 ; Lewis v. Brehme, 33 Md.
412; Milligan v. Lyle, 24 La. An. 144;
Barnstable Bk. v. Ballou, 119 Mass.
487. Supra, § 1058.
' Wharton on Agency, § 295 ; Cas-
trique v. Buttigieg, 10 Moore P. C.
94; Sharp v. Emmett, 5 Whart. 288
Milligan v. Lyle, 24 La. An. 144.
' Lefevre v. Lloyd, 5 Taunt. 749
Beckham v. Drake, 9 M. & W. 79
Sowerby v. Butcher, 2 C. & M. 368
Leadbitter ti. Farrer, 3 M. & S. 34
Hancock v. Fairfield, 30 Me. 299
Stackpole v. Arnold, 11 Mass. 27
Bank of N. A. v. Hooper, 6 Gray,
567; Pentz v. Stanton, 10 Wend. 276
Bogan V. Calhoun, 19 La. An. 472
Lander v. Castro, 43 Cal. 497.
In 1 Am. Lead. Cas. 633, the law is
thus stated: —
" Where there is a doubt or ambi-
guity on the face of the instrument,
as to whether the person means to
bind himself, or only to give an evi-
dence of debt against an institution
or body of which he is a representa-
tive, parol evidence is undoubtedly
admissible; not, indeed, to show the
intention of the parties to the con-
tract, but to prove extrinsic circum-
stances by which the respective lia-
bility of the principal and agent may
be determined; such as, to which the
consideration passed and credit was
given, and whether the agent had au-
thority, and whether it was known to
the party that he acted as agent. The
extent of the principle as to the ad-
missibility of parol evidence appears
to be this : Where the name of both
prihcipal and agent appear on the in-
strument, and the contract, though in
the name of the agent, discloses a ref-
erence to the business of the princi-
pal, so that the instrument, as it
stands, is consistent of either view, of
its being the engagement of the prin-
cipal or of the agent, parol evidence
is admissible, in a, suit against the
agent .... to discharge him by prov-
ing that the consideration passed di-
rectly to the principal; as, that credit
having been given to the principal
alone, the consideration of the note
signed by him was an antecedent liar
bility on the part of the principal, and
that the other party knew that he
acted as agent, and thus destroying
all consideration for a liability on his
part."
See, also, Wharton on Agency,
§§ 290, 295, 458, and an elaborate dis-
309
§ 1062.]
THE LAW OF EVIDENCE.
[book n.
parol, as against a plaintiff proved to be cognizant of the facts,
that the defendant's name was attached to the note only as
surety ; ^ or that the relation of the plaintiff and the defendant
is that of co-sureties ; ^ or that the relation of a person signing
his name on the back of a note was not intended by the parties
to involve individual liability ; ^ or that an indorsement as against
the holder, was solely for the holder's accommodation.* The
consideration of negotiable paper, as between parties in imme-
diate relationship to each other, being always open to impeach-
ment,* parol evidence is admissible to determine such relation-
ship.®
§ 1062. In any view, ambiguities as to the parties and sub-
Ambigui- j^'^* matter of negotiable paper may be explained by
ties in such parol, provided that in so doing the explanation is lim-
paper may c t ir a r
be ex- ited to such ambiguities, and in no case the sense of the
plained- . . ■■,-,■, r ■ i
instrument is overridden : ' as for instance, when a per-
cussion in Albany Law Journal for
1875, p. 275. See, also, Sumwalt v.
Ridgely, 20 Md. 107; Haile v. Peirce,
32 Md. 327 ; Lazarus v. Skinner, 2
Ala. 718; Smith v. Alexander, 31 Mo.
193; McClellan v. Reynolds, 49 Mo.
313.
1 Supra, § 952; Greenough v. Mc-
Clelland, 2 E. & E. 424 ; Mutual
Loan Fund Assoc, v. Sudlow, 6 Com.
B. (N. S.) 449; Pooley v. Harradine,
7 E. & B. 431; Taylor v. Burgess, 5
H. & N. 1 ; Lawrence v. Walmsley,
12 Com. B. (N. S.) 799; Bristow v.
Brown, 13 Ir. Law R. (N. S.) 201 ;
Bailey v. Edwards, 34 L. J. Q. B.
41; 4 B. & S. 761, S. C; Bank v.
Kent, 4 N. H. 221 ; Adams v. Flan-
agan, 36 Vt. 400 ; Bank of St. Mary
V. Mumford, 6 Ga. 44 ; Pollard v.
Stanton, 5 Ala. 451 ; Emmons v.
Overton, 18 B. Mon. 643; Ward v.
Stout, 82 111. 399; Dunn v. Sparks, 7
Ind. 490.
" Sweet t'. McAllister, 4 Allen, 353 ;
Home V. Bod well, 5 Gray, 457; Bright
V. Carpenter, 9 Ohio, 139 ; though
see Johnson v. Crane, 16 N. H. 68.
310
' Supra, § 1059; Mayuard i>. Fel-
lows, 43 N. H. 255 ; Harris v. Brooks,
21 Pick. 195; Parks i>. BrinkerhofE, 2
Hill (N. Y.), 663; Northumberland
Bank v. Eyer, 58 Penn. St. 97; Dale
V. Moffitt, 22 Ind. 113 ; Collins v.
Gilson, 29 Iowa, 61 ; Day v. Bil-
Mngsly, 3 Bush, 157 ; Jennings ».
Thomas, 21 Miss. 617 ; Powell i'.
Thomas, 7 Mo. 440; Lewis v. Harvey,
18 Mo. 74.
* .Patten v. Pearson, 55 Me. 39 ;
Farnum v. Farnum, 13 Gray, 508 ;
Driver v. Miller, 16 La. An. 131. See
cases supra, § 1059.
5 See supra, § 1044 ; Jones v. Hor-
ner, 60 Penn. St. 214; Clarke i-. Dede-
rick, 81 Md. 148 ; Jones v. Buffum,
50 111. 277.
° Munroe v. Bordier, 8 C. B. 862 ;
Arbouin v. Anderson, 1 Q. B. 498 ;
Hoffman v. Bank, 18 Wall. 181 ; Horn
t>. Fuller, 6 N. H. 511; Aldrich «.
Stockwell, 9 Allen. 45; Brummel v.
Enders, 18 Grat. 873.
' Wilson V. Tucker, 10 R. I. 578;
Jamison v. Pomeroy, 9 Penn. St. 230;
Haile v. Peirce, 32 Md. 327; Isler v.
CHAP. Xn.] PAROL VAEIATION OF BILLS AND NOTES. [§ 1063.
son signs a note as " cashier," or " treasurer," to prove the in-
stitution of which he is an officer ; ^ where A. gives a note as
" agent," to prove whom he really represented ; ^ and when the
note recites imperfectly the consideration, to explain the re-
cital.^
VII. SPECIAL RULES AS TO OTHER INSTRUMENTS.
§ 1063. Eeleases, especially when under seal, partake of the
nature of deeds, and are not susceptible, unless fraud ueieaaea
or mutual mistake be set up, of contradiction or varia- cannot be
■*■ contra-
tion by parol.* It has been held, that the principle dieted by
above stated applies to unliquidated as well as to liqui-
dated claims.^
parol.
Kennedy, 64 N. C. 530; Lockwood v.
Avery, 8 Ala. 502; Taylor v. Strick-
land, 37 Ala. 642.
■ Baldwin v. Bank, 1 "Wall. 234;
Bank of Newburg v. Baldwin, 1 Cliff.
519; Farmers' Bank v. Day, 13 Vt.
36 ; Hovey v. Magill, 2 Conn. 680.
^ Paige V. Stone, 10 Mete. (Mass.)
160; Haile v. iPeirce, 32 Md. 327;
Baker v. Gregory, 28 Ala. 544 ; South.
Life Co. V. Gray, 3 Fla. 262.
" Walker v. Clay, 21 Ala. 797.
' Deland v. Amesbury, 7 Pick. 244 ;
Wood V. Young, 5 Wend. 620; Stearns
V. Tappin, 5 Duer, 294; Noble v. Kel-
ly, 40 N. Y. 420; State v. Messick,
1 Houst. 347; 111. Cent. R. K. v.
Welch, 52 111. 183; Turnipseed o.
McMath, 13 Ala. 44. That such an
instrument, however, may be avoided
by fraud, see Martin v. Righter, 10
N. J. Eq. 510.
' " Upon what principle the supreme
court confined the abatement from the
verdict to ten dollars, I have not been
able to conjecture, unless perhaps it
was assumed that the consideration of
a release under seal was open to in-
quiry, and if it appeared that such
consideration was not equal in amount
to the whole demand or thing released,
the release only operated pro tanto.
This, however, cannot, I think, be se-
riously claimed ; the seal itself imports
full consideration, and the release and
discharge, under seal, full and com-
plete satisfaction. And this is equally
true whether the real or only a nomi-
nal consideration is expressed. The
idea that an action may be prosecuted
for damages for an assault and bat-
tery, slander, libel, or other tort, and
notwithstanding a release and dis-
charge, the party may go to the jury
on the question whether the consider-
ation expressed in the release is an
adequate compensation, would not be
entertained for a moment; and I am
not aware of any difference in this re-
spect when the action is trover or tres-
pass de bonis asportatis. In the ab-
sence of fraud, it is to be deemed con-
clusively shown by the release, that,
upon considerations satisfactory to
the releasor, he has accepted satis-
faction.
" Our statute, making a seal pre-
sumptive evidence only of a consid-
eration, has no application to such a
discharge. See Stearns v. Tappin, 5
Duer, 294, and cases therein cited,
and 22 Barb. 97." Woodruff, J., No-
ble V. Kelly, 40 N. Y. 420.
811
§ 1064.]
THE LAW OF EVIDENCE.
[book n.
§ 1064. Receipts being informal and non-dispositive writings,
Receipts may be modified, explained, or impugned by parol.^
corrected That this is the case in ordinary" receipts for the pay-
by parol, ment of money, is a necessary consequent of the infor-
mality of such instruments. But the rule is not limited to ordi-
nary receipts. Thus in an action by an attaching officer against
a receiptor, the latter is not estopped, by a receipt, reciting the
value of the goods, and that they are free from incumbrance,
and agreeing to give them up when the officer should appoint,
from setting up the intervening bankruptcy and discharge of the
defendants in attachment.^ Even where a creditor, upon pay-
ment of a portion of an undisputed account, gives a receipt in
full, he is not thereby precluded from recovering the balance of
the account, though the receipt was given intelligently, and
there was no fraud or error.^ To all classes of receipts is the
rule applicable. A receipt, for instance, given by a fire or life
1 Skaife v. Jackson, 3 B. & C. 421 ;
Graves v. Key, 3 B. & Ad. 313; Wal-
lace V. Kelsall, 7 M. &W. 273; Bowes
V. Foster, 2 H. & N. 779; Farrar «.
Hutchinson, 9 Ad. & E. 641 ; Lee v.
R. R. L. R. 6 Ch. Ap. 527; Rollins v.
Dyer, 16 Me. 475 ; Richardson ». Reede,
43 Me. 161; Furhush v. Goodwin, 25
N. H. 425; Nye v. Kellum, 18 Vt.
594; Street v. Hall, 29 Vt. 165;
Guyette ». Bolton, 46 Vt. 228; Corlies
V. Howe, 11 Gray, 125; Pitt v. Ins.
Co. 100 Mass. 500; 2Sfelson v. Weeks,
111 Mass. 223; Calhoun v. Richard-
son, 30 Conn. 210; Coon v. Knap,
8 N. Y. 402 ; Sheldon v. Ins. Co. 26
N. Y. 460; Buswell v. Poineer, 37 N.
Y. 312; Baker v. Ins. Co. 43 N. Y.
283 ; Foster v. Newborough, 58 N. Y.
481; Green v. Man. Co. 1 Thomp. &
C. 5; Joslyn v. Capron, 64 Barb. 599;
Bird V. Davis, 14 N.J. Eq. 467; Mid-
dlesex I'. Thomas, 20 N. J. Eq. 89;
Pleasants v. Pemberton, 2 Dall. 196 ;
Penns. Ins. Co. v. Smith, 3 Whart. R.
520; Dutton v. Tilden, 13 Penn. St.
46; Gue v. Kline, 18 Penn. St. 60;
Batdorf v. Albert, 59 Penn. St. 59;
312
Russell V. Church, 65 Penn. St. 9;
Cramer v. Shriner, 18 Md. 140 ; Walk-
er V. Christian, 21 Grat. 291; De-
ford V. Seinour, 1 Ind. 332 ; Carr v.
Minor, 42 111. 179; Leonard v. Dun-
ton, 51 111. 482; Elston v. Kennicott,
52 m. 272; Rowe v. "i'^'right, 12 Mich.
289 ; Bell v. Utley, 1 7 Mich. 508 ; Ham-
mond V. Harrison, 21 Mich. 274; Wil-
son V. Derr, 69 N. C. 137; Clarke!).
Deveaux, 1 S. C. 172 ; Dunagan v.
Dunagan, 38 Ga. 554 ; Walters ».
Odom, 53 Ga. 286; Hogan v. Rey-
nolds, 8 Ala. 59; Oakley v. State, 40
Ala. 372; Motley v. Motley, 45 Ala.
555; Dunn w. Pipes, 20 La. An. 276;
Draughan v. White, 21 La. An. 175;
Borden v. Hays, 21 La. An. 581;
Smith, in re, 22 La. An. 253; Wil-
liams V. State, 20 Miss. 58 ; Wallace
V. Wilson, 30 Mo. 335; Grumley i;.
Webb, 44 Mo. 444 ; Byrne v. Schwing,
6 B. Monr. 199; Hawley v. Bader, 15
Cal. 44. As to recitals of receipt of
purchase money in deeds, see supra,
§ 1039.
' Lewis V. Webber, 116 Mass. 450.
» Ryan «. Ward, 48 N. Y. 20.
CHAP. xn.J
RECEIPTS MODIFIED BY PAROL.
[§ 1065.
insurance agent for the premium of a policy, may be explained
by parol ; ^ and so may a receipt given by such an agent stating
that the receipt was " to be binding until policy is received," ^
and so a receipt for a note with the words, " which I agree to
account for on demand."^ Where, also, a receipt is embodied in
a promissory note, the receipt is open to explanation as fully as
if it were in a separate instrument.* The same liberty extends
to receipts indorsed on deeds or notes ; ^ and to bankers' pass-
books.® A certificate of deposit issued by a bank is also
merely evidence of debt, in the nature of a receipt, and parol
evidence is admissible to explain it, as in the case of a re-
ceipt.^
§ 1065. A receipt in a policy of marine insurance is an ex-
ception to the rule, and is held to be conclusive,^ though j, . ,
it is otherwise as to the adiustment of a loss made with- for marine
insurance
out full knowledge of the circumstances.® Nor, though are conciu-
the usual acknowledgment in a policy of insurance of
^ Eeyner v. Hall, 4 Taunt. 725 ;
Ferebee v. Ins. Co. 68 N. C. 11. See
Luckie v. Bushby, 13 C. B. 844.
2 Scurry v. Ins. Co. 51 Ga. 624.
8 Eaton V. Alger, 2 Abb. (N. Y.)
App. 5.
< Smith et al. v. Holland, 61 N. Y.
635.
' Straton v. Rastall, 2 T. R, 366 ;
Graves v. Key, 3 B. & Aid. 313.
' Com. Bk. V. Rhind, 3 Macq. Sc.
Gas. 643.
' Hotchkiss V. Mosher, 48 N. Y.
478.
" The certificate was simply an
acknowledgment of so much money de-
posited with the bank. It was of the
same force and effect as a receipt for
money. The word ' certify ' adds no
additional force to the instrument, as
purporting a contract. It contained
no promise on the part of the defend-
ants; and if it had, the portion which
operated as a receipt for money was
quite as capable of separation from
that part which evidenced a contract
as in the case of a bill of lading. A
certificate or acknowledgment, that
another has deposited a sum of money,
has the effect of an acknowledgment
by one party that he has received a
sum of money from another. A sim-
ple certificate like the one in question
is not the basis of an action like a
promise in writing, but would be evi-
dence, like a receipt, to raise an im-
plied promise to pay in an action for
money had and received. We are of
the opinion that parol evidence was
admissible to explain the certificate in
the same manner as in the case of a
receipt." Leonard, J., Hotchkiss v.
Mosher, 48 N. Y. 482.
8 Arnould, Ins. 180, 181; Bigelow
on Estoppel, 2d ed. 429; Mutual Ben.
Co. V. Ruse, 8 Ga. 536 ; Illinois Co. v.
Wolf, 37 111. 354.
» Luckie v. Bushby, 13 C. B. 844 ;
Eeyner v. Hall, 4 Taunt. 725; Shep-
herd V. Chewter, 1 Camp. 274; Adams
V. Sanders, 4 C. & P. 25.
313
§ 1066.] THE LAW OP EVIDENCE. [BOOK n.
the receipt of premium from the assured is conclusive of the fact
as between the underwriters and the assured, is it so as between
the underwriters and the broker.^
§ 1066. A party however may, as to innocent third parties,
estop himself from disputing a receipt ; * as where a
may'^e'es- Warehouseman gives a receipt of goods, which the
fevor'of ° holder passes to a bond fide dealer.* " So, under cir-
third par- cumstances which would create an estoppel by conduct,
an acknowledgment of receipt of money or property
will become binding even between the parties ; as in the case of
a receipt given by an attaching oflS.cer, with knowledge, for goods
attached as the property of a third person, whereby the officer is
prevented from levying upon other goods, and induced to leave
those attached in the possession of the receiptor."* So a receipt
by a county treasurer, acknowledging the redemption of land
sold for taxes, is part of a record title which cannot be contra-
dicted by parol.^ And if a man by his receipt acknowledges
that he has received money from an agent on account of his
principal, and thereby accredits the agent with the principal
to that amount, such receipt may be conclusive as to payment
by the agent.*
» Dalzell V. Mair, 1 Camp. 532 ; Dezell v. Odell, 3 Hill, 215 ; Dresbach
Anderson v. Thornton, 8 Ex. R. u. Minnis, 45 Cal. 223; Blevenu. Freer,
428. 10 Cal. 172; Gaff v. Harding, 66 111.
" Bigelow on Estoppel, 2d ed. 429; 61. To the same point, see James v.
Stackpole u. Kobbins, 47 Barb. 212; Bligh, 11 Allen, 4; Wakefield ». Sted-
Graves v. Dudley, 20 N. Y. 76. See man, 12 Pick. 562; Van Ostrand v.
Scott V. Whittemore, 27 N. H. 309; Reed, 1 Wend. 424; Coon v. Knap, 8
Curtis V. Wakefield, 15 Pick. 437. N. Y. 402 ; and see Craig o. Lewis,
8 McNeil V. Hill, Woolw. 96, cit- 110 Mass. 377 ; Candee v. Burke, 4
ing Austin v. Craven, 4 Taunt. 644; Thomp. & C. 143 ; S. C. 1 Hun, 546;
Whitehouse v. Frost, 12 East, 614; Stone v. Vance, 6 Oh. 246; Dale v.
White K. Wilkes, 5 Taunt. 176; Co- Evans, 14 Ind. 288; Stapletonw. King,
nard v. Ins. 1 Peters, 886; Gardiner v. 83 Iowa, 28 ; Knoblauch v. Kronsch-
Suydam, 7 N. Y. 357 ; Gibson w. Bank, nabel, 18 Minn. 300 ; Brown v. Brooks,
11 Oh. St. 811. See Knights v. Wif- 7 Jones L. 93; Wilson v. Duer, 69 N.
fen, L. R. 5 Q. B. 660; supra, § 1039; C. 137; Grumley u. Webb, 48 Mo. 562;
yet, even in such cases, mistake may Rice v. Crow, 6 Heisk. 28.
be set up. Second Nat. Bk. v. Wal- « Halsey v. Blood, 29 Penn. St.
bridge, 19 Oh. St. 419. 819.
* Bigelow on Estoppel, 2d ed. 480; « Hunter v. Walters, L. R. 11 Eq.
citing Dewey v. Field, 4 Mete. 381 : 292.
314
CHAP. XII.J SUBSCRIPTIONS MODIFIED BY PAROL. [§ 1068.
§ 1067. We have heretofore ^ seen that it is admissible to
prove by parol that a written instrument is only an Bonds may
escrow, or that it was delivered with the understanding by paroTto
that it is not to go into effect except upon a contin- ^^ payable
° '■ '■ on contin-
gency that has not happened. On the same reasoning gencies.
it is admissible to prove by parol that a bond, by an agreement
contemporaneous with its execution, is to lose its efficiency
on the happening of a contingency.^ But this is not allowable
when the terms of the bond are thereby impugned.^ Thus
where a warrant of attorney was given to confess judgment
at once, it was held inadmissible to prove by parol an agree-
ment that judgment should only be entered on a specific con-
tingency.^
§ 1068. A subscription to pay money to a business, or other
enterprise, may in one sense be regarded as a naked gubs^rip.
promise to pay a particular amount, and if so, it is tions can-
to be treated as an ordinary dispositive writing, not tradicted
primd facie open to parol correction, yet subject to any ^
equities that may exist between the parties.^ When, however,
subscriptions are interdependent, one made on the faith of the
other, then no such equities can be introduced ; and each sub-
scriber is estopped, so far as concerns other bond fide subscribers,
from denying the binding effect of his subscription. Nor can a
subscriber to a corporation so set up secret parol conditions to
modify his subscription.^
' Supra, §§ 927, 930. Talcott, 2 Root, 119; Hackney v. Ins.
' Chester v. Bank, 16 N. Y. 336 ; Co. 4 Barr, 185; Coil u. Pittsburg Col-
Morrison V. Morrison, 6 Watts & S. lege, 40 Penn. St. 445 ; Erie P. R. v.
516; Leppoc v. Bank, 82 Md. 136. Brown, 25 Penn. St. 156 ; Plank Road
See, also, supra, § 255. v. Arndt, 31 Penn. St. 317; Custar v.
» Philadelphia R. R. v. Howard, 13 Titusville, 63 Penn. St. 385; Jones v.
How. 307; Musselman v. Stonet, 31 Turnpike Co. 7 Ind. 547; Sourse v.
Penn. St. 265; Chetwood v. Brittan, 5 Marshall, 23 Ind, 194.
N. J. Eq. 628; Towner v. Lucas, 13 " Oilman v. Veazie, 24 Me. 202;
Grat. 705; Wemple v. Knopf. 15 Minn. George v. Harris, 4 N. H. 633 ; White
440. Mountain R. R. v. Eastman, 34 N. H.
* Fulton V. Hood, 34 Penn. St. 365. 124; Brigham v. Meed, 10 Allen, 245;
See, also, Hendrickson i;. Evans, 25 Turnpike Co. v. Thorp, 13 Conn. 173;
Penn. St. 441. Mann v. Cook, 20 Conn. 178; Palmer
5 Supra, §§ 920-3; Rutland, &c. R. v. Lawrence, 3 Sandf. S. C. 161;
R- V. Crocker, 29 Vt. 540; O'Hear v. Crane v. Elizabeth Ass. 29 N. J. L.
De Goesbriand, 33 Vt. 593; Bull v. 302; Garrett v. R. R. 78 Penn. St.
315
§ 1069.]
THE LAW OF EVIDENCE.
[book n.
§ 1069. Where, however, a subscription has been fraudulently
obtained, this fraud may be up as a defence to an action on the
ject to the provisions of which the
plaintiff company was erected, has in
it nothing to indicate that the legisla-
ture intended to restrict the power
which corporations ordinarily possess
over their own stock. It follows that
the plaintiff might dispose of its stock
as of any other of its property in such
manner as, in its judgnrent, might best
subserve the purposes of its erection,
and to this end might receive condi-
tional subscriptions for such use.
"Again, after the organization of
a company, chartered for some public
purpose, as in this case for the building
of a railroad, if one subscribe, without
condition, to the stock of such com-
pany, he does so in view of the gen-
eral powers conferred upon it by the
legislature, and he is responsible, with
his fellow corporators, for the proper
and lawful exercise of those powers;
and he cannot, therefore, set up an un-
lawful act of the directors as an excuse
for the non-payment of his subscrip-
tion, for it is within his own power to
prevent such abuse of authority.
" As was said in Graff v. The Rail-
road Co. 7 Casey, 489, the contract of
subscription is not only with the com-
pany, but also with all the other share-
holders ; hence the subscriber may not
set up even the fraud of the directors
in order to defeat his contract. Bat
whenever a power intervenes, over
which he can have no control, to al-
ter, in a material point, the character
of his contract without his assent,
actual or implied, such intervention
works his release; as where, by an act
of the general assembly, a turnpike
company was authorized to alter the
termini of its road, in that case it was
held that a subscriber to its stock was
released from his contract of subscrip-
tion. Turnpike Co. v. Phillips, 2 Pa.
465; Banet v. R. E. 13 111. 509; Cor-
with V. Culver, 69 111. 502; Burhans
V. Johnson, 15 Wise. 286; Smith v.
Tallahassee, 30 Ala. 650. See Angell
& Ames on Corp. § 146.
In Caley v. R. R., Supt. Ct. Penns.
1876, 2 Weekly Notes, 313, it was
said by Sharswood, J., speaking for
the court: " Where one subscribes to
the stock of a public corporation prior
to the procurement of its charter, such
subscription is to be regarded as abso-
lute and unqualified, and any condi-
tion attached thereto is void. Bedford
Railroad Co. v. Bowser, 12 Wr. 29.
The reason for this rule is obvious ; the
commissioners, who are appointed to
receive such subscriptions, are not the
accredited agents of the corporation,
for it is not yet in being, but are ra-
ther the agents of the public, acting
under limited and definite powers
which every one is bound to know ;
and if he be misled by representations
which such agents have no right to
make, it is his own folly. Any other
rule would lead to the procurement,
from the commonwealth, of valuable
charters without any absolute capital
for their support, and thus give rise
to a system of speculation and fraud
which would be intolerable. When,
however, the company is once organ-
ized, a different order prevails. Such
a company may receive conditional
subscriptions for its stock, and when
it does so do, it is bound to the per-
formance of the conditions therein
contained. Railroad Co. v. Stewart,
5 Wr. 54; Railroad Co. v. Hickman, 4
Ca. 318. Doubtless the act of incor-
poration might alter this rule, and put
all stock subscriptions within the cate-
gory of and subject them to the same
conditions as those made before or-
ganization. But the Act of 1849, sub-
316
CHAP. XII.] BILLS OF LADING MODIFIED BY PAROL. [§ 1070.
subscription, as to the party guilty of the fraud.^ But it is other-
mae when the false representations which constitute the alleged
fraud were false representations of law.^ Parol evidence is ad-
missible to show, in case of misdescription, for what object the
subscription was intended.^
§ 1070. So far as bills of lading are receipts, they are open to
explanation by parol evidence.* Nor does the fact that Bills of
the shippers gave an order to the warehousemen for a openfo^eL
cargo, and then settled with them on the faith of the piaoation.
bill of lading, which for some cause was erroneous, take the case
out of the general rule.^ It is otherwise when the bill of lad-
E. 184; Plank Road Co. i'. Amdt, 7
Ca. 317. The reason for this is, that
such termini form part of the condi-
tions which enter into the contract,
and as the supreme power, over which
the subscriber has no control, inter-
venes to alter such conditions, he is
thereby released. A contrary doc-
trine would involve the unreasonable
supposition that a contract might be
imposed upon a party who had never
assented thereto."
In Garrett v. R. R. 78 Penn. St.
465, it was held that where a sub-
scriber to stock of a proposed railroad
allowed his name to remain on the ar-
ticles of association until final organ-
ization of the company, he cannot
withdraw, although no part of his sub-
scription had been paid up. Nor will
he be permitted, in an action against
him for the amount due on his sub-
scription, to set up, as a defence, any
alleged invalidity of the corporation,
by evidence that it had failed to com-
ply with essential conditions prescribed
in its charter, — as, that the termini
had been illegally changed.
' Wharton on Agency, § 165 ; Ken-
nedy V. Panama Co. L. R. 2 Q. B.
580; New York Co. v. De "Wolf, 31
N. Y. 273 ; Jones v. Turnpike Co.
7 Ind. 547; Graff v. R. R. 31 Penn.
St. (7 Cas.) 489.
" Upton V. Tribilcock, 91 U. S. (1
Otto) 5 ; Rashell v. Ford, L. R. 2
Eq. 750; Lewis v. Jones, 4 B. & C.
506; Fish o. Cleland, 33 111. 243.
' Musselman v. R. R. 2 Weekly
Notes of Cases, 105 ; Turnpike Co.
V. Myers, 6 S. & R. 12.
* Bates V. Todd, 1 Mood. & R. 106;
Berkeley v. Watling, 7 Ad. & E. 29 ;
Mar. Ins. Co. v. Ruden, 6 Cranch,
338 ; Sutton v. Kettell, 1 Sprague,
309 ; The Lady Franklin, 8 Wall.
325; The Delaware, 14 Wall. 579;
The Invincible, 1 Lowell, 225 ; The
I. W. Brown, 1 Biss. 76 ; O'Brien v.
Gilchrist, 34 Me. 554 ; Richards v.
Doe, 100 Mass. 524 ; Grace v. Adams,
100 Mass. 505 ; Graves v. Harwood,
9 Barb. 477; Cafiero v. Welsh, 3
Leg. Gaz. 21 ; Bait. St. Co. v. Brown,
54 Penn. St. 77; Atwell v. Miller,
11 Md. 348; Cincin. R. R. Co. v. Pon-
tius, 19 Ohio St. 221. See Erb U.Keo-
kuk R. R. 43 Mo. 53 ; Wayland v.
Moseley, 5 Ala. 430 ; McTyer v.
Steele, 26 Ala. 487 ; Hedricks v.
Morning Star, 18 La. An. 353; Steam-
boat V. Webb, 9 Mo. 193.
6 The I. W. Brown, 1 Biss. 76.
" As to the quantity of goods deliv-
ered to a carrier, the bill of lading
furnishes prima facie evidence only,
and is always open to contradiction
and explanation by parol evidence,
like any receipt; Wolfe v. Myers, 3
Sand. Sup. Ct. R. 7; Meyer v. Peck,
317
§ 1070.]
THE LAW OF EVIDENCE.
[book II.
ing involves a contract, in v^hich case parol evidence, except in
cases of fraud or mistake, cannot be received to vary the terms.i
28 N. Y. 590. In the case of Myer
V. Feck, it was held that a stipulation
in a bill of lading, that ' any damage
or deficiency in quantity, the consignee
will deduct from balance of freight
due the captain,' will not be under-
stood as a guarantee that the captain
had received the whole quantity of
goods specified. That case is an au-
thority in point in this. The language
used in this bill of lading, is : 'AU
damage caused by the boat or carrier,
or deficiency of cargo from quantity,
as herein specified, to be paid by the
carrier and deducted from freight.'
Here is an agreement that the carrier
will be bound by the quantity speci-
fied, or that the bill of lading shall
furnish the only evidence of the quan-
tity. Such an agreement might, doubt-
less, be made by a carrier; but the
language used would have to be quite
clear and explicit to preclude the car-
rier from showing by parol a mistake
in the quantity.'' Earl, C, Abbe w.
Eaton, 51 N. Y. 413.
1 " Different definitions of the com-
mercial instrument, called the bill of
lading, have been given by different
courts and jurists, but the correct one
appears to be, that it is a written ac-
knowledgment, signed by the master,
that he has received the goods therein
described from the shipper, to be trans-
ported on the terms therein expressed,
to the described place of destina-
tion, and there to be delivered to the
consignee or parties therein desig-
nated. Abbott on Shipping (7th Am.
ed.), 328; O'Brien v. Gilchrist, 34
Me. 558; 1 Parsons on Shipping, 186;
Maclachlan on Shipping, 388 ; Eme-
rigon on Ins. 251. Regularly the
goods ought to be on board before
the bill of lading is signed, but if the
bill of lading, through inadvertence
318
or otherwise, is signed before the
goods are actually shipped, as if they
are received on the wharf or sent to
the warehouse of the carrier, or are
delivered into the custody of the mas-
ter or other agent of the owner or
charterer of the vessel, and are after-
wards placed on board, as and for the
goods embraced in the bill of lading,
it is clear that the bill of lading will
operate on those goods, as between
the shipper and the carrier, by way of
relation and estoppel, and that the
rights and obligations of all concerned
are the same as if the goods had been
actually shipped before the bill of lad-
ing had been signed. Rowley v. Big-
elow, 12 Pick. 307; The Eddy, 5
Wallace, 495. Such an instrument is
twofold in its character ; that is, it is
a receipt as to the quantity and de-
scription of the goods shipped, and a
contract to transport and deliver the
goods to the consignee or other person
therein designated, and upon the terms
specified in the same instrument.
Maclachlan on Shipping, 338, 339;
Smith's Mercantile Law (6th ed.),
308. Beyond all doubt, a bill of lad-
ing in the usual form is a receipt for
the quantity of goods shipped and a
promise to transport and deliver the
same as therein stipulated. Bates v.
Todd, 1 Moody & Robinson, 106 ;
Berkley v. Watling, 7 Adolphus & El-
lis, 29 ; Wayland v. Mosely, 5 Ala-
bama, 430 ; Brown v. Byrne, 3 Ellis
& Blackburne, 714; Blaikie v. Stem-
bridge, 6 C. B. (N. S.) 907. Receipts
may be either a mere acknowledgment
of payment or delivery, or they may
also contain a contract to do some-
thing in relation to the thing deliv-
ered. In the former case, and so far
as the receipt goes only to acknowl-
edge payment or delivery, it, the re-
CHAP. XII.] BILLS OF LADING MODIFIED BY PAROL. [§ 1070.
A bill of lading in such case stands on the footing of all other
contracts, and cannot be varied by parol unless on proof of
fraud or gross concurrent mistake.^ Thus it has been held
on high authority 2 that a clean bill of lading imports that
the goods are stowed under deck, and that parol evidence, that
the vendor agreed that the goods should be stowed on deck, could
not be legally received, even in an action by the vendor against
the purchaser for the price of the goods, which were lost in con-
sequence of the stowage of the goods in that manner by the car-
rier. Even when it appeared that the shipper, or his agent who
delivered the goods to the carrier, repeatedly saw them as they
were stowed in that way and made no objection to their being
so stowed, the supreme court of Maine held that the evidence of
those facts was not admissible to vary the legal import of the
contract of shipment ; and that the bill of lading being what is
called a clean bill of lading, it bound the owners of the vessel to
carry the goods under deck, though the court admitted that where
there is a well known usage in reference to a particular trade to
carry the goods as convenience may require, either upon or under
the deck, the bill of lading may import no more than that the
ceipt, is only prima facie evidence of like manner, in respect to any other
the fact, and not conclusive, and, fact which it erroneously recites; but
therefore, the facts which it recites in all other respects it is to be treated
may he contradicted by oral testi- like other written contracts. Hastings
mony; but in so far as it is evidence v. Pepper, 11 Pickering, 42 ; Clark v.
of a contract between the parties, it Barnwell et al. 12 Howard, 272 ; Ellis
stands on the footing of all other con- v. Willard, 6 Selden, 529 ; May v.
tracts in writing, and cannot be con- Babcock, 4 Ohio, 346 ; Adams v.
tradicted or varied by parol evidence. Packet Co. 5 C. B. (N. S.) 492; Sack
1 Greenleaf, Evidence (12th ed.), i;. Ford, 13 C. B. (N. S.) 100." Clif-
§ 305 ; Bradley v. Dunipace, 1 Hurl- ford, J., in The Delaware, 14 Wall,
stone & Colt. 525. Text-writers men- 600.
tion the bill of lading as an example As to invoice, see Dows v. Bank, 91
of an instrument which partakes of U. S. (1 Otto) 618. Infra, § 1141.
a twofold character, and such com- ^ Ibid. ; Adams v. Packet Co. 5 C.
mentators agree that the instrument B. (N. S.) 492; Bradley v. Dunipace,
may, as between the carrier and the 1 Hurl. & C. 625 ; Clark v. Barnwell,
shipper, be contradicted and explained 12 How. 272; Hastings w. Pepper, 11
in its recital that the goods were in Pick. 42; Long v. R. R. 50 N. Y. 76;
good order and well conditioned, by Creery v. Holly, 14 Wend. 28.
showing that their internal state or ' Nelson, J., Creery v. Holly, 14
condition was bad, or not such as is Wend. 28. See The Wellington, 1
represented in the instrument, and in Biss. 279.
319
§ 1070.] THE LAW OF EVIDENCE. [BOOK n.
cargo shall be carried in the usual manner.^ So, in a Connecti-
cut case, where testimony was offered by the carrier to prove a
verbal agreement that the goods might be stowed on deck;,^ the
court rejected the testimony, holding that the whole conversation,
both before and at the time the writing was given, was merged
in the written instrument. Evidence of usage in a particular
trade, it is true, is admissible to show that certain goods ia that
trade may be stowed on deck.* " But evidence of usage can-
not be admitted to control or vary the positive stipulations of a
bill of lading, or to substitute for the express terms of the instru-
ment an implied agreement or usage that the carrier shall not
be bound to keep, transport, and deliver the goods in good order
and condition." *
1 Clifford, J., in The Delaware, 14 American edition), 837, cited by Clif-
Wall. 600, citing Sproat v. Donnell, ford, J., The Delaware, ut supra.
26 Me. 187 ; see, also, 2 Taylor on * Clifford, J., The Dekware, ut su-
Evidence, §§1062, 1067; Hope u. State pra, citing The Reeside, 2 Sumner,
Bank, 4 Louisiana K. 212; 1 Arnould 570 ; 1 Duer on Ins. § 17. See, how-
on Insurance, 70 ; Lapham v. Insur- ever, Vernard v. Hudson, 3 Sumner,
ance Co. 24 Pick. 1. 406 ; Sayward v. Stevens, 3 Gray,
" Barber v. Brace, 3 Conn. 14. 101.
' 1 Smith's Leading Cases (6th
320
BOOK III.
EFFECTS OF PEOOF.
CHAPTER XIII.
ADMISSIONS.
I. Ghhekal Rules.
Admissions not to be considered as
strictly evidence, § 1075.
Must relate to existing condi-
tions, § 1076.
Non-contractual admissions do
not conclude, § 1077.
Such admissions dependent on
circumstances for credit, §
1078.
Intent necessary to give weight
to, § 1079.
Credibility a question of fact,
§ 1080.
Admissions may be by acts,
§ 1081.
Admission of a right distin-
guishable from admission of
a fact, § 1082.
Contractual admission to be
distinguished from non-con-
tractual, § 1083.
Contractual admissions may
estop, § 1085.
Estoppels may be also substi-
tutes for proof, § 1086.
Even a false statement may
estop, § 1087.
Otherwise as to non-contractual
admissions, § 1088.
Such admissions must be specific to
have weight, § 1089.
Admissions, when made for the
purpose of compromise, inad-
missible, § 1090.
VOL. n. 21
II.
Admissions may prove contents of
writings, § 1091.
Limitations of this rule, § 1093.
Admissions not excluded because
party could be examined, § 1094.
Admissions may prove execution
of document, unless when there
are attesting witnesses, § 1095.
May prove marriage, § 1096.
May prove domicil, § 1097.
But not record facts, § 1098.
Invalidated by duress, § 1099.
Cannot be received when self-
serving, § 1100.
Except when part of the res
gestae, or when stating symp-
toms, § 1102.
Whole context of a written admis-
sion must be proved, § 1103.
Not always so as to answers in
equity under oath, § 1104.
Otherwise at common law, § llOS.
Practice as to exhibits, § 1106.
Whole of applicatory legal pro-
cedure usually goes in, § 1107.
So of whole relevant part of a con-
versation, § 1108.
So of testimony, reproduced from
a former trial, § 1109.
Admissions in Judicial Proceed-
ings.
Direct admission by plea is conclu-
sive, § 1110.
So of pleas in abatement, § 1111.
321
THE LAW OF EVIDENCE.
[book m.
In pleading, what is not denied is
admitted, § 1112.
So in suits brought on f onner jadg-
ment, § 1113.
Payment of money into court ad-
mits debt^ro tanto, § 1114.
Pleadings may be admissions, §
1116. •
But are rebuttable, § 1117.
, So of process, § 1118.
Affidavits and bill and answers in
chancery may be put in evidence
against party making them, §
1119.
Party's testimony in another case
may be used against him, §
1120.
Inventory an admission by execu-
tor, § 1121.
ni. DOCDMENTAKT ADMISSIONS.
Written admissions entitled to pe-
culiar weight, § 1122.
Instrument may be an admis-
sion, though undelivered,
§ 1123.
Invalid instrument may be used as
an admission, § 1124.
Notes and acknowledgments are
evidence of indebtedness, § 1125.
So are indorsements on negotiable
paper, § 1126.
So may be letters, § 1127.
And telegrams, § 1128.
And memoranda, § 1129.
Keceipts are rebuttable admissions,
- § 1130.
Corporation and club books may be
used as admissions, § 1131.
So may partnership books,
§ 1132.
So may accounts stated, §
1133.
Whole account may go in,
§ 1134.
So may indorsements of inter-
est against the party mak-
ing them; but not to sus-
pend statute of limitations,
§ 1135.
IV. Admissions by Silence or Con-
duct.
Silence of a party during another's
statements may imply admission,
§ 1136.
So as to party acquiescing in
testimony of witness, §
H39.
322
otherwise as to silence on recep-
tion of accounts, § 1140.
So of invoices, § 1141.
Silent admissions may estop, §
1142.
Extension of estoppels of this class,
§ 1143.
So as to third parties, § 1144.
Party selling cannot set up invalid-
ity of sale, § 1147.
Owner of land bound by tacit
representations, § 1148.
Subordinate cannot dispute supe-
rior's title, § 1149.
Other party's action most be in-
fluenced, and the misleading con-
duct must be culpable, § 1150.
Assumed character cannot after-
wards be repudiated, § 1151.
But silence, on being told of an un-
authorized act, does not estop,
§ 1152.
Admitting official character of a
person is a primd facie admis-
sion of his title, § 1153.
Letters in possession of a party not
ordinarily admissible against him,
§ 1154.
Admissions made, either without
the intention of being acted on,
or without being acted on, do not
estop, nor can third parties use
estoppel, § 1155.
V. Admissions by Pbedecessor dt
Title.
Self-disserving admissions of pred-
ecessor in title may be received
against successor, § 1156.
Burdens and limitations descend
with estate, § 1157.
Executors are so bound by their
decedent, § 1158.
Landlord's admissions receivable
against tenant, § 1159.
Tenancy and other burdens may
be so proved, § 1160.
But admissions of party holding a
subordinate title do not affect
principal, § 1161.
Judgment debtor's admissions ad-
missible against successor, § 1163.
Vendee or assignee of chattel bound
by vendor's or assignor's admis-
sions, § 1163.
Indorser's declarations inadmis-
sible against an indorsee, §
1163 a.
CHAP. XIII.]
ADMISSIONS.
In suits against strangers, declar-
ant, if living, must be produced,
§ 11S3 b.
Bankrupt assignee bound by bank-
rupt's admissions, § 1164.
Admissions of predecessor in title
cannot be received if made after
title is parted with, § 1165.
Exception in case of concurrence
or fraud, § 1166.
Declarations of fraud cannot infect
innocent vendee, § 1167.
Self-serving admissions of prede-
cessor in title inadmissible, §
1168.
Declarations must be against dec-
larant's particular interest, §
1169.
VI. Admissions of Agent, and At-
TOENEY, AND ReFEREE.
Agent employed to make contract
binds his principal by his repre-
sentations, § 1170.
And this though the represen-
tations were unauthorized, §
1171.
Applicant for insurance may con-
tradict written statement made
by agent, § 1172.
Admissions of agent receivable
when part of the res gestae,
§ 1173.
So in torts, § 1174.
Authority to make non-contractual
admissions must be express,
§ 1175.
So as to torts, § 1176.
General agent may admit facts
non-contractually, § 1177.
NonK^ontractual admissions are
open to correction, § 1179.
After business is closed, agent's
power of representation ceases,
§ 1180.
Servant's admissions are subject to
the same restrictions, § 1181.
Agency must be established ali-
unde, § 1183.
Attorney's admissions bind client,
§ 1184.
Attorney's admissions may be used
by strangers, § 1185.
Implied admissions of counsel bind
in particular case, § 1186.
Attorney's authority must be proved
aliunde, § 1187.
So of admissions of attorney's
clerk, § 1188.
Attorney's admissions maj' be re-
called before judgment, § 1189.
Admissions of referee bind princi-
pal, § 1190.
Vll. Admissions by Pak^'Ners and
Persons jointly interested. *
Persons jointly interested may
bind each other by admissions,
§ 1192.
So of partners, § 1194.
As to acknowledgment to take debt
out of statute, § 1195.
Such power ceases at dissolution of
connection, § 1196.
So as to joint contractors, §
1197.
Persons interested, but not parties,
mav affect suit by admissions,
§ 1198.
But mere community of interest
does not create such liability,
§ 1199.
Executors against executors, in-
dorsers against indorsees, §
1199 a.
Declarations of declarant cannot es-
tablish against others his inter-
est with them, § 1200.
Authority terminates with relation-
ship, § 1201.
Admissions in fraud of associates
may be rebutted, § 1202.
Self-serving statements of associ-
ates inadmissible, § 1203.
In torts, co-defendant's admissions
not to be received against the
others, unless concert is proved,
§ 1204.
But where conspiracy is proved ad-
missions of co-conspirators are
receivable, § 1205.
VIII. Admissions by Representative
AND Principal.
Admissions of nominal party can-
not prejudice real party, § 1207.
Guardian's. admissions not receiv-
able against ward, § 1208.
Public otlicer's admissions may
bind constituent, § 1209.
Representative's admissions inop-
erative before he is clothed with
representative authority, § 1210.
And so after he leaves office,
§ 1211.
Principal's admissions receivable
against surety, § 1212.
Cestui que trust's admissions bind
trustee, § 1213.
323
§ 1076.]
THE LAW OF EVIDENCE.
[book m.
IX. Admissions op Husband and
Wife.
Husband's declarations may be re-
ceived against wife, § 1214.
Wife's admissions may be received
wlien she is entitled to act ja-
ridically, § 1216.
Her admissions may bind her has-
band, § 1217.
May bind her trustees, § 1218.
Mav bind he'r representatives,
§'l219.
Admissions of adultery to be closely
scrutinized, § 1220.
'evi-
dence
I. GENERAL RULES.
§ 1075. Whether an extra-judicial admission is evidence is a
Admis- question much agitated by jurists both early and recent,
slops not In a, strict and scientific sense, such an admission is not
strictly
so much evidence, as a dispensation from evidence.
It may, it is true, when offered as a quasi contract be-
tween the parties (e. g. when the plaintiff, in the business on
which the suit is brought, admits something, and on this the de-
fendant acts), amount to an estoppel.^ But in all other cases
it is merely a waiver, by one party, of his right that the otber
parly should be required to prove a particular fact in issue.
In such cases, therefore, an admission is a fact to be proved by
evidence, not evidence to prove a fact. In this sense the Roman
law speaks when it declares that an admission is not probatio,
but levamen prohationis? Admissions, therefore, in the present
chapter, are treated rather as things to be proved, than as a
mode of proving things.
§ 1076. An admission, to have the effect of conceding, either
An admis- wholly ovpnmdfaeie, an adversary's case, must relate to
''i^tT^' a past or present state of facts. If I say, " I now owe
existing you SO much," this may be treated as an admission. If
I say, " I will pay you so much in the future," this is
not an admission, unless, with other evidence, it implies a pres-
ent indebtedness. This distinctive feature of admissions is rec-
ognized in Roman jurisprudence as well as in our own. " Qua
de causa rccte dicemus, arcaria nomina nuUam facere obligatio-
nem, sed obligationis factae testimonium praebere." ^ "Verbis:
quod sua quisque voce protestatus est, id infirmaret, te-stimoni-
oque proprio resisteret." * " Quum res non instrumentis geran-
» Supra, § 920.
' See Bald, in L. 3 Cod. iv. 80, qu.
10; Mascard. I. qu. 7, nr. 11 ; Facian,
L. C. 11, nr. 10; Endemann, 135.
324
See to this point, Edmunds v. Groves,
2 M. & W. 642.
» Gains, Inst. iii. § 131.
* C. 18; C. 4, 30.
CHAP. XIII.] . ADMISSIONS : GENERAL RULES. £§ 1077.
tur, sed in liaec rei gestae testimonium conferatur." ^ If an
admission, when viewed in this sense, is to be effective, it must
relate to the present, not to the future. From it by its very
terms is excluded the assumption that the declarant intends to
establish an obligatory relation with another.^ As has been well
stated,^ the declarant draws simply from his own knowledge or
recollection, and turns, therefore, only to the past ; the person
who enters into a contract establishes, in connection with his co-
contractor, a new legal relation, and turns to the future. The
promise is productive ; the admission simply reproductive.
§ 1077. Extra-judicial admissions may be either contractual
(being in such case dispositive),* constituting an estop- Non-con-
pel when they form part of the statements by which factual
* , , ^ , ^ admissions
one party is induced to contract with the other ; or they do not
are non-contractual and non-dispositive, when they con-
sist of casual statements, not part of a contract with the other
party. In the latter case, the admission, we have seen, is not a
probatio, but a levamen prohationis ; it does not prove a fact, in
the strict sensfe, when offered against the declarant, but it re-
lieves the party relying on it from proving such fact, thereby
throwing the burden of disproving on the declarant.^ By the
scholastic jurists such admissions were spoken of sometimes as
half proofs ; sometimes as presumptions. With us, evidence that
they were made may be admissible, either as yielding presump-
tions against the party charged, or as relieving (under ordinary
circumstances) the party offering them from the necessity of
more formal proof.^ At the same time it must be remembered
' C. 12; C. 4, 19. 6 Mascard. I. C. No. 26 ; Endemann,
^ Gbnner, Handb. des Proz. ii. 46; 137.
Hesse, juristftch. Probleme, 24. ° Infra, § 1088; Hamilton w. Paine,
' Hesse, «( supra 17 Me. 219; Pike v. Wiggin, 8 N.
* To documents, generally, the dis- H. 356 ; Tenney v. Evans, 14 N. H.
Unction, in this respect, is expressed 343 ; Plummer v. Currier, 52 N. H.
by the terms dispostoe and no«-dispos- 287; Goodnow v. Parsons, 36 Vt.
I'ioe, since under documents fall wills, 46; Loomis v. Wadhams, 8 Gray, 557;
which cannot be spoken of as con- Linsley v. Eushnell, 15 Conn. 225 ;
traotual. As all admissions, on the Doyle v. St. James's Church, 7 Wend,
other hand, are either contractual or 178; Black v. Lamb, 12 N. J. Eq.
non-contractual, I here adopt the lat- 108; Silvis v. Ely, 3 Watts & S. 420;
ter terms as, in this relation, more McGill w. Ash, 7 Penn. St. 397; Wolf
6Mct. „. Studebaker, 65 Penn. St. 459 ; Bran-
325
§ 1077.]
THE LAW OF EVIDENCE.
[book m.
that they are not conclusive proof of that which they state ; that
they may be readily neutralized by proof that they were uttered
in ignorance, or levity, or mistake ; and hence that they are, at
the best, to be regarded as only cumulative proof, which afford
but a precarious support, and on which no party should be con-
tent to rest his case.^ This is eminently the case when the party
who made the admissions is deceased, in which case admissions
alleged to have been made by him should be cautiously weighed,^
or where there is any suspicion attachable to the admission as a
class, as is the case with admissions of adultery ; ^ or where they
on their face appear to have been uttered in order to elude in-
quiry.* In fine, where the party seeking to prove admissions in
no way altered his position in consequence of their utterance,
the party making them can always prove their untruth.^ It
should also be remembered, that estoppels can never bind
strangers, since as to strangers they are always non-contract-
dywine R. R. v. Ranck, 78 Penn. St.
454 ; Hope v. Evans, 4 Sm. & M. 321 ;
Fidler v. McKinley, 21 111. 308 ; Secor
V. Pestana, 37 111. 525; Higgs v. Wil-
son, 3 Mete. (Ky.) 337; Harvey v.
Anderson, 12 Ga. 69 ; Ector v. Welsh,
2» Ga. 443.
1 Snow V. Paine, 114 Mass. 520;
Garrison v. Akin, 2 Barb. 25; Tracy
V. McManus, 58 N. Y. 257 ; Quarles
V. Littlepage, 2 Hen. & M. 401 ;
Horner v. Speed, 2 Patt. & H. 616;
Chicago R. R. v. Button, 68 111. 409 ;
Clark V. Larkin, 9 Iowa. 391 ; Martin
V. Algona, 40 Iowa, 390 ; Printup v.
Mitchell, 17 Ga. 558 ; Crockett v.
Morrison, 11 Mo. 8 ; Cafferatta v.
Cafferatta, 23 Mo. 235; O'Brien v.
Flynn, 8 La. An. 307. See, as qual-
ifying the text, MaUro v. Piatt, 62
Ind. 450. Thus the acknowledgment
of a signature to a note does not con-
clude the party making it. Hall v.
Huse, 10 Mass. 39 ; Salem Bank v.
Gloucester Bk. 17 Mass. 1. See su-
pra, § 705.
» Supra, §467; Dupre v. McCright,
6 La. An. 146; Wilder v. Franklin, 10
326
La. An. 279; Croizet's Succession, 12
La. An. 401.
* Supra, §483; infra, §1220; Lyoni).
Lyon, 62 Barb. 138; Prince t>. Prince,
25 N. J. Eq. 310; Evans i-. Evans, 41
Cal. 103 ; Mathews v. Mathews, 41
Tex. 331. As to admissions made by a
person when intoxicated, see Gore v.
Gibson, 13 M. & W. 623 ; Jefferds v.
People, 5 Parker 0. R. 522. As to
talking in sleep, see Best's Ev.§ 529;
Whart. Cr. Law, 7th ed. § 684 ; Peo-
ple V. Robinson, 19 Cal. 40.
* The student will find the distinc-
tions in the text expanded with great
subtlety and clearness in Hesse's Ju-
ristische Probleme, Jena, 1872. Ad-
missions, in this interesting treatise,
are treated: (1.) as confessions; (2.)
as statements of account; and (3.) as
estoppels, the latter being viewed as
constituting an Anerkennungsvertrag.
6 Heme v. Rogers, 9 B. & C. 577;
Newton v. Belcher, 1 Q. B. 921 ;
Newton V. Liddiard, 12 Q. B. 927 ;
Atty. Gen. v. Stephens, 1 Kay & J.
748.
CHAP. Xra.J ADMISSIONS : GENERAL RULES. [§ 1078.
ual ; ^ and that even recitals in deeds, which estop the parties,
may be contradicted by strangers.^
§ 1078. Supposing an admission to be non-contractual, — i. e.
a statement by one party, as was seen in the last sec- Non-con-
tion, which is not the consideration for the act or tractia)
' , , admissions
forbearance of another party, — it is not to be ac- dependent
cepted without a careful scrutiny of the circumstances cumstances
under which it was made. Here we find an essential '"' "^ ''
distinction between the admission and the estoppel.* The estop-
pel binds whether it is true or false ; the admission only when
true. I may untruly say, " I have no title to this land ; " yet if
in consequence of my disclaiming such title at a public sale, B.
buys the land, I may hereafter be estopped from setting up my
title against B. But if my admission has not been the cause of
B. doing or omitting any act, then, if he should sue me, this ad-
mission is entitled to no weight whatever should it prove to be
untrue. It is admissible in evidence, as, primd fade, a levamen
probationis, but the only ground for its admission is the presump-
tion that a declaration made by me against my interest is true.
Even this presumption vanishes in the face of evidence that I
made the admission through levity, or ignorance, or simulation.
We have an interesting illustration of this in the Justinian
Code.* " Veteris juris, dubitationem decidentes sancimus, si
quidem tutor vel curator pro substantia pupilli vel adulti aliquid
dixerit, ad majorem quantitatem eam reducens, sive pro utilitate
pupilli, sive pro sua (sola) simplicitate, sive per aliam quam
cunque eausam nihil veritati praejudicare, sed hoc obtinere,
quod ipsius rei inducit natura, — et mensura ostendit substantiae
pupillaris." What the guardian, according to this ruling, says
with regard to the greatness of his ward's estate, is not to be
put in evidence against him, if it be shown that the statement
was an unfounded exaggeration, uttered either idly or for the
purpose of swelling his own or his ward's importance. When
circumstances, therefore, show that admissions were uttered care-
lessly, the presumption of their truth decreases in proportion to
' See cases cited supra, § 923 ; infra, Blamire, 8 East, 487. See supra,
§§ 1083, note (6), 1155. § 1041 ; infra, § 1088.
' R. V. Neville, Pea. K. 91 ; Carter » See fully infra, §§ 1087-8.
V. Carter, 1 K. & J. 649 ; Mayor v. * C. 13 ; C. 6, 13.
327
§ 1079.] THE LAW OF EVIDENCE. [BOOK in.
the carelessness with which they were spoken; while on the
other hand the presumption of truth rises in proportion to the
information, the seriousness, and the deliberation of the party
speaking. Justinian gives peculiar emphasis to this antithesis:
" Sin autem inventario publice facto res pupillares conscripserit
et ipse per hujusmodi scripturam confessus fuerit ampliorem
quantitatem substantiae, nihil esse aliud inspiciendum, nisi hoc,
quod inseripsit, et secundum vires ejusdem scripturae patrimo-
nium pupilli exigi." From such an inventoiy the seriousness
and the deliberation of the admission (confessio, scripturd) are
presumed, while the presumption that it was made in brag or
levity is proportionally excluded. From such conditions we may
infer the truth of the admission ; because no prudent man would,
to his own disadvantage {jaontra se), make a deliberate misstate-
ment. " Neque enim sic homo simplex, immo magis stultus in-
venitur, ut in publico inventari scribi contra se aliquid patia-
tur." 1
§ 1079. To the validity of a confessio, an animus confitendi is
Intent nee- as a general rule necessary. It is clear that a state-
glyg"^ ° ment, thrown out as a joke or even as a brag, and ac-
sucf ad-° cepted as such by the opposite side, is not a confessio,
mission. or statement binding the party making it.^ A party,
also, so has it been held, will not be estopped by information
uttered by him, as he supposes, merely informally, as a matter
of conversation ; it being the duty of the persons asking him
for such information to notify him if they intended to act upon
his answers.^ The animus confitendi, in such sense, has been
treated as convertible with the animus veram dicendi, or, to
adopt a German rendering, with Ernstlichkeit, or seriousness.*
If the party admitting is not in earnest in making the admis-
sion, and does not mean it as a contractual admission, then, so
far as concerns himself, he is not to be regarded as intending to
be bound. So far as concerns hand fide third parties, relying on
his statements, the question depends upon whether the admis-
sion was made in such a way as would lead a business man of
ordinary prudence to rely on it. If not so made, a statement
1 Hesse, 28. » Hackett v. Calleuder, 32 Vt. 99.
' See cases in Whart. Cr. Law, * Endemann, 153.
§ 2102, holding that false "puflfs " are
not false pretences.
328
CHAP. XIII.] ADMISSIONS : GENERAL RULES. [§ 1079.
cannot be regarded as binding the party making it.^ Of this
an illustration given in the Roman books is as follows : A. writes
to B., asking for a loan of money. B. answers saying that he
has no money at his disposal, and has just been forced to borrow
10 pieces of gold from C. C, upon receiving this information,
sues B. for ten pieces of gold, and puts the letter in evidence.
The letter, it is held, is not sufficient to sustain C.'s suit. In
such a case it might readily be assumed that B. might have been
influenced, in .the statement made as to C.'s loan, by a desire to
get rid of A.'s importunities ; nor is it necessary to suppose that
the statement was a pure falsehood, for the loan may have been
expected, or B. may even had reason to suppose, though errone-
ously, that it was actually received. In weighing a non-con-
tractual admission, also, it is important to inquire whether the
party making the statement expects at the time he makes it
that it will work to his advantage. Men readily believe what
they wish to be true; and eveij supposing that the declarant
makes his declaration honestly, the fact that he makes it, when
its utterance is apparently beneficial to himself, does not jus-
tify us in juridically assuming its verity. The same observa-
tion may be made as to confessions which may be instigated,
as is the case with some of those of Byron and Rousseau, by
a morbid desire of notoriety. In fine, to enable us to repose
confidence in a party's admissions, they must be made at a time
when the person making them believed them to be against
his interest. In the Roman law, this is laid down as a test
which determines the value to be attached to all admissions by a
party. In our own law, while we cannot apply this test so as to
determine the admissibility, it is of much value in determining
credibility. And even as to admissibility, if we exclude all
^ In Heane v. Rogers, 9 B. & C. less another person has been induced
586, Bayley, J., said : " There is no by them to alter his condition ; in such
doubt but that the express admissions a case the party is estopped from dis-
of a party to the suit, or admissions puting their truth with respect to that
implied from his conduct, are evidence person (and those claiming under him)
— and strong evidence — against him; and that transaction ; but as to third
but we think that he is at liberty to persons he is not bound. It is a well
prove that such admissions were mis- established rale of law that estoppels
taken or were untrue, and that he is bind parties and privies, not stran-
not estopped or concluded by them, un- gers." Powell's Evidence, 4th ed. 226.
329
§ 1080.] THE LAW OF EVIDENCE. [BOOK 111.
confessions which are induced by the hope of an advantage held
out to the party confessing by a person in authority, the same
rule should be good as to admissions in civil suits.^
§ 1080. The credibility of a self-disserving, non-contractual
p admission, therefore, is a question of fact resting on the
a question presumption that no prudent man would declare an un-
truth to his own disadvantage. " Quum legibus nostris
dictum sit, quaecunque quis pro se dixerit aut scripserit, ea nihil
ipsi prodesse, neque creditoribus praejudicare." " " Exemplo
perniciosum est, ut ei scripturae credatur, qua unusquisque sibi
adnotatione propria debitorem constituit. Unde neque fiscum
neque alium quemlibet ex suis suhnotationibus debiti probationem
praebere posse." ^ Hence " contra se dicere " is essential to the
weight of an admission. Self-love and vanity,- so it is justly
argued, will hinder a prudent man from falsehoods that would
redound to his credit.* Yet we must remember that this prop-
osition applies mainly to matters of pecuniary interest. When
we come to questions of pedigree, of status, and of marriage, dif-
ferent influences come in which render the tests just given of but
little weight. In matters of pedigree, in particular, a statement
which one man would shrink from as discreditable, another
would advance with pride. To some men an aristocratic con-
nection might be claimed untruthfully ; by others it might be
untruthfully disclaimed. Sinister bars, indicating a royal illegit-
imate descent, are blazoned boastfully on some escutcheons ; from
others they have been obliterated with scorn. Nor can we forget
that pecuniary interest may sometimes be overbalanced by other
more powerful passions. The author of Junius, whoever he was,
must have often untruthfully denied his responsibility for his
handiwork, not because he might not have made money by such
an avowal, but because it would have involved him in social
ignominy. Sir Walter Scott, against what we might consider
bis interest, repeatedly disavowed Waverley, and went so far as to
write a laudatory review, attributing that great novel to another
author. For a man of gallantry, as Lord Denman reminds us,
it is as disgraceful to admit an intrigue as it would be unpro-
1 See Whart. Cr. Law, §§ 683-698. » Hesse, «( supra, 29; citing further
" Nov. 28. c. 1 I Hesse, 29. I. 26, § 2; D. xvi. 8.
» C. 7| C. 4, 19.
330
CHAP. XIII.] ADMISSIONS : 6KNEEAL RULES. [§ 1081.
fessional to avoid it.^ On the other hand, the German poets of
the Sturm und Drang period were in the habit, following Lord
Byron, of intimating their complicity in merely imaginary crimes.
Even among prudent men, a little obvious interest, against which
a party makes an admission, may be greatly overbalanced by a
superior secret interest, of which nobody knows but the declar-
ant. The truthfulness, therefore, of an apparently self-disserv-
ing statement is a presumption of fact, depending upon all the
circumstances of the case. We must inquire whether the state-
ment was really self-disserving, and even if it were so, in a
business sense, we must remember that it may be (discredited by
showing that it was made under mistake, or from a desire on the
declarant's part to produce a sensation, or to avoid a disclosure
of a fact with which the admission is inconsistent. •
§ 1081. Admissions may be by acts as well as by words.^
Thus in a suit for injury caused by a train passing a .
platform, it has been held admissible to prove that the may be by
railroad company caused the platform to be removed
the day after ; ^ and in a suit for injury through falling into a
cellar, the plaintiff has been permitted to prove that the defend-
ant, " immediately after the accident, put a gas-light close to the
opening."* Not only acts done in silence, but silence itself may
be shown, as we will soon more fully see,^ for the purpose of
proving an admission. Thus it is admissible to show that after
the plaintiff's claim became due, he paid a claim due from him
to the defendant without any effort at or suggestion of set-off.®
That a party pays interest on or instalments of a debt, may be
also shown as an admission of indebtedness.^ The assumption of
an office, to take another illustration, is an admission of appoint-
ment to such office, and subjects the party to the liabilities -at-
tached to such office, though he made no claim in words to the
office.* Again, the payment of money by A. to B. is an ad-
' Supra, § 483, note. « See infra, § 1136.
' Infra, § 1151 ; Russell v. Miller, « Strong v. Slicer, 35 Vt. 40.
26 Mich. 1. ' Waslier v. White, 16 Ind. 136.
' Pennsyl. R. R. v. Hender.ion, 51 Infra, § 1362.
Penn. St. 315; West Chester R. R. v. ' Bevan v. Williams, 3 T. R. 635 ;
McElwee, 67 Penn. St. 311. R. v. Borrett, 6 C. & P. 124; R. v.
* McKee v. Bidwell, 74 Penn. St. Giles, Leigh & C. 502 ; R. v. Story,
218. R. & R. 81; R. V. Hunter, 10 Cox C.
331
§ 1082.] THE LAW OF EVIDENCE. [BOOK ni.
mission by A. that B. is the proper payee, though not, it is said,
by B., that A. is the person bound to pay.^ When, also, the
question is, whether the stationing a flagman at a crossing is
requisite to public safety, the fact that a flagman has been
assigned, by the company, to such station (he being absent at
the time of the collision), may be treated as an admission by the
company that a flagman should be so stationed.^
§ 1082. Admissions may also be distinguished as admissions
Admission of right, and admissions of fact. I may be sued for
to be'dis- ^ particular claim, and I may be proved to have ad-
fi-om ad-*^ mitted either the justice of the claim, or the truth of
mission of certain facts from which the justice of the claim may
be inferred. Admissions of the first class, when not
part oi a contract, are entitled to less weight than admissions. of
the second class.* I may, for instance, admit a claim against me
for the sake of peace, or from a misunderstanding of the facts ;
and in such case I can withdraw the admission if it is not part
of a contract. My saying that I do not now admit a liability I
formerly admitted does not expose me to the imputation of hav-
ing in one or the other case spoken falsely. I express, in both
cases, only a conclusion at which I have arrived, and this con-
clusion I may be at liberty to recall or modify. It is otherwise
as to my admission of facts of which I am personally cognizant.*
C. 642. See Whart. Cr. Law, § 2113. mission of the justice of the claim.
Infra, § 1319. The apparent admission of a fact may
^ James o. Biou, 2 Sim. & St. 606; be only the admission of a conclusion;
Chapman v. Beard, 3 Anstr. 942. the admission of a conclusion may be
'^ McGrath v. R. R. 63 N. Y. 522. necessarily the admission of a fact.
' See McLendon u. Shakleford, 32 See supra, § 15. Yet, when we view
Ga. 474; Bait. City R. R. v. McDon- the two kinds of admissions in their
nell, 43 Md. 534. essence, we find that the difference
* Yet the distinction between these between them is material. The one is
two classes of admissions cannot be an exercise of the power that each
always definitely made. Many ad- man has of disposing of himself and
missions partake of the qualities of his property. The other is an exer-
both classes ; in many cases an ad- cise only of the powers of observation
mission of one class involves an ad- and memory, made admissible, in a
mission of another. My admission of court of justice, without the party
the justice of a claim, for instance, himself being necessarily sworn, for
may be of such a. character that it the reason that being made by him
presupposes an admission of the truth against his own interests, its truth is
of certain facts; my admission of par- prima fade assumed. See Bahr, die
ticular facts may be logically an ad- Anerkennung, p. 169 ; Endemann, p.
332
CHAP. XIII.] ADMISSIONS : GENERAL RULES. [§ 1084.
Of course if I make such admission without due consideration
or knowledge, it may be repudiated.^
§ 1083. What is just said is subject to the radical distinction
already^ noticed, between admissions which are con- contraot-
tractual and dispositive, and such as are non-contractual ".*' admis-
^ ' sion di3-
and non-dispositive ; in other words, , between admis- tinguish-
sions made intentionally, for the purpose of transferring non-con-
a right, and admissions made casually, for the purpose
of narrating an incident.^ The contractual and dispositive ad-
mission* is equivalent to an offer which, when accepted by the
other party, makes a contract. Such an admission, as we will
presently see, when made as the basis of a contract, cannot be
revoked. The non-contractual admission, on the other hand,
not being acted on by the party to whom it is addressed, may at
any time be recalled or qualified by the party making it.*
Hence, also, it is, that while an admission may be an estoppel,
when sued upon directly, as the basis of an action, it may be
qualified or neutralized when offered by third parties simply as
an evidential fact.®
§ 1084. The distrust of non-contractual (or casual, to use Mr.
Bentham's term) admissions as a mode of proof is not confined
to the Roman law. In England, courts of equity go so far in
applying the distinction that has been just expressed, as to de-
cUne to rest a decree on oral admissions or declarations wMoh
are not put directly in issue hy the pleadings, and which, conse-
quently, have not been open to explanation or disproof.'^ Even
121; Steffy v. Carpenter, 37 Penn. * See Wetzell, Civil Proc. i. p. 139;
St. 41; and supra, § 920. Weiske, Kechtslexicon, xi. 662.
1 Brackett v. Wait, 6 Vt. 411 ; ^ See supra, §§ 920 1077-1080; in-
Ramsbottom v. Phelps, 18 Conn. 278; fra, §§ 1151, 1155.
Martin v. Peters, 4 Roberts. 434 ; ' Carpenter v. Buller, 8 M. & W.
Ray V. Bell, 24 111. 444; Husbrook v. 209; South E. R. R. v. Warton, 6 H. &
Strawser, 14 Wise. 403; Zemp v. E. N. 520 ; Stronghill v. Buck, 14 Q. B.
R. 9 Rich. 84; Stewart m. Conner, 780 ; Wiles «. Woodward, 5 Ex. 557;
13 Ala. 94 ; Beebe v. De Baun, 8 Ark. Richards v. Johnston, 4 H. & N. 660;
510; Carter v. Bennett, 4 iFIa. 283; Morgan v. Coachman, 14 C. B. 100;
Hays V. Cage, 2 Tex. 501. Francis v. Boston, 4 Pick. 365; Weed
' Supra, § 1077-8. Machine Co. v. Emerson, 115 Mass.
' See supra, § 920, where this dis- 554 ; Bigelow on Estoppel, 258. Su-
tinction is discussed in reference to pra, §923; infra, § 1155.
documents. ' Austin ». Chambers, 6 CI. & Fin.
333
§ 1086.] THE LAW OP EVIDENCE. [BOOK in.
as to written admissions, it has been argued, the fact of their
not being put in issue by the pleadings will naturally detract
from their weight, as the party against whom they are offered
in evidence will, in such case, have had no opportunity of ex-
plaining them.^ In the United States, the conclusion above
stated, so far as it involves an absolute rule of evidence, has not
been accepted.^ So far, however, as it goes to 'attach little
weight to non-contractual, as distinguished from contractual
admissions, it is sustained by the authorities cited in prior sec-
tions.
§ 1085. The term " non-contractual," it must be repeated,
applies exclusively to statements casually made, with-
naiad- out the intention of establishing a business relation,
mayoper- When an admission is made by one party, in such a
aieases- ^a,y that the other party relies on the admission as the
consideration for something done or forborne by him,
then this admission may conclude by way of estoppel the party
making it.^ In other words, he is bound, when his admission is
accepted and acted on by the opposite party, in a contract which
he can only avoid on proof of fraud, illegality, or mistake.* At
the same time estoppel, to adopt the language of the books,
must, in order to be effective, be mutual.^
§ 1086. What has been said in regard to admissions, that they
are not evidence on the one side, but dispensations of
may be evidence, which would otherwise have to be offered on
for proof, the other side, applies also to estoppels. " An estop-
1, 38, 39; Attwood v. Small, Ibid. 234; & Gr. 193 ; Bowman v. Rostron, 2 A.
Copland v. Toulmin, 7 Ibid. 350, 873, & E. 295 ; Pickard v. Sears, 6 A. 8e
375. E. 474 ; Scammon w. Scammon, 33 N.
1 McMahon v. Burchell, 2 Phill. H. 52; Wakefield v. Grossman, 25
127, 132, 188; 1 Coop. R. temp. Ld. Vt. 298 ; Bower v. McCormick, 23
Cottenham, 475, S. C; Crosbie w. Grat. 310 ; Islem. Harrison, 71 N. C.
Thompson, 11 Ir. Eq. R. 404, per 64 ; Tompkins v. Philips, 12 Ga. 52;
Brady, Ch.; Swift v. M'Tiernan, Ibid. Lamar o. Turner, 48 Ga. 329 ; Rose v.
602, per Ibid.; Malcolm v. Seott, 3 West,' 50 Ga. 474; Garrett «. Garrett,
Hare, 39, 63 ; and see Margareson v. 27 Ala. 687; and see, also, cases cited
Saxton, 1 Y. «E C. Ex. R. 529 ; and supra, §§'617, 923, 1079, 1083; and
Fitzgerald v. O'Flaherty, 2 Moll, see Moriarty ». R. R. 5 Q. B. 320.
394, n.; Taylor's Ev. § 668. ♦ See supra, §§ 927, 1019, 1030.
» Story Equity PI. § 265 a, note 1. « 2 Smith's Lead. Cas. 442 ; Per-
« See fully infra, §§ 1151-1155 ; rie w. Nuttall, 11 Ex. 569; Bigelow on
Fishmongers' Co. v. Robertson, 6 M. Est. 47.
334
CHAP. XIII.] ADMISSIONS : GENERAL EULES. [§ 1087.
pel," so speaks a high authority, " is an admission, or some-
thing which the law treats as equivalent to an admission, of an
extremely high and conclusive nature, — so high and so con-
clusive, that the party whom it affects is not permitted to aver
against it or offer evidence to controvert it, though he may
show that the person relying on it is estopped from setting it
up, since that is not to deny its conclusive effect as to himself,
but to incapacitate the other from taking advantage of it. Such
being the general nature of an estoppel, it matters not what is
the fact thereby admitted, nor what would be the ordinary and
primary evidence of that fact, whether matter of record, or spe-
cialty, or writing unsealed, or mere parol ; . . . . and this is no
infringement on the rule of law requiring the best evidence, and
forbidding secondary evidence to be produced till the sources
of primary evidence have been exhausted ; for the estoppel pro-
fesses not to supply the absence of the ordinary instruments
of evidence, but to supersede the necessity of any evidence by
showing that the fact is already admitted ; and so, too, has it
been held, that an admission which is of the same nature as
an estoppel, though not so high in degree, may be allowed to
establish facts, which, were it not for the admission, must have
been proved by certain steps appropriated by law to that pur-
pose." 1
§ 1087. Hence it is that a party, by even false statements by
which he induces others to change in some way their
position, may preclude himself afterwards from show- false state-
ing the falsehood of such statements. This position is be an es-
accepted by the Roman law as well as by our own. Do- '"^p^^'
nellus, after telling us that confiteri may be to enter into a bind-
ing dispositive act, adds, " Confiteri est fateri id, quod a nobis
quaesitum est : id autem est, quod nobis objicitur ; quod inten-
ditur ab aliquo, id lingua verum esse agnoscere. Potest autem
quivis agnoscere et dicere verum esse, quod intenditur, etiam qui
id falsum esse sciat, multoque citius is, qui putat rem ita se ha-
bere, ut dicit, quae secus habeat." ^ In this view, a party mak-
ing such a statement, thereby inducing another to enter into a
contract with him, is bound to such other by such statement,
' 2 Sm. L. C. 693. » Donel. Com. L. 28, c. 1.
335
§ 1089.] THE LAW OF EVTDENOE. [bOOK m.
whether it be true or false. ^ A person, for instance, falsely
claiming to be an agent, cannot dispute his statement when sued
on it by a party acting on his pretension.^ A party warrant-
ing cannot escape liability by claiming that his warranty was
false.^
§ 1088. On the other hand, a non-contractual admission is of
„^ . no weight unless it is true. If made under a mistake
as to non- or error of fact, it may be repudiated. " Non videntur
contractual . • „ a -at j-
admis- qui errant, consentire. * '■'■ Jyon jatetur qui errat."^
Nor are such admissions binding if based on a mistake
of law.^ It is scarcely necessary to repeat that an admission
may be contractual as to the party with whom it is made, oper-
ating as an estoppel when sued on by such party, but non-con-
tractual as to strangers, as to whom, when they sue on it, it may
be rebutted.^
§ 1089. To admit a non-contractual admission, offered in evi-
Such ad- dence merely to relieve the party offering it from prov-
mus\' be ^^E ^ particular part of his case, the admission must be
specific. specific.8 Thus the admission of a " debt " due the
plaintiff will not be sufficient proof to support an account pre-
sented by plaintiff to defendant in 'connection with which the
general admission was made ; ^ though an admission as to a par-
1 Cave «. Mills, 7 H. & N. 913; and 292 ; Rowen v. King, 25 Penn. St.
see Salem Bk. v. Gloucester Bk. 17 409 ; Solomon v. Solomon, 2 Ga. 18.
Mass. 1 ; McCance v. R. R. 3 H. & C. ' Supra, § 923, 1078; Carter v. Car-
343. Infra, §§ 1146, 1151. ter, 1 K. & J. 649. That non-contract-
^ Whart. on Agency, § 541. ual admissions are only p-ima/acie and
8 See Bigelow on Est. 288-9. rebuttable evidence against the party
* Lofft Max. 553. making them, see supra, §§ 1077-8 ;
« L. 116, D. (L. 17) U'pian. See and see Baker u. Dewey, 1 B. & C.
as to unreliability of admissions, su- 704 ; Stratton v. Rastall, 2 T. R 366;
pra, § 1077 ; and so of admissions of Reeve v. AVhitmore, 2 Dr. & S. 450.
agent, infra, § 1179 ; and see gener- ' Chambers Co. v. Clews, 21 Wall.
ally. Pecker v. Hoit, 15 N. H. 143; 317; Ripley v. Paige, 12 Vt. 353;
Stephens v. Vroman, 18 Barb. 250 ; Clarendon r. Weston, 16 Vt. 332 ;
Tracy w. McManus, 58 N. Y. 257 ; Smitli v. Jones, 15 Johns. B. 229;
Matthews v. Dare, 20 Md. 248 ; Ray Smith ti. Smith, 1 Greene (Iowa), 307;
17. Bell, 24 111. 444; Young v. Foute, Watson v. Byers, 6 Ala. 393.
43 111. 33 ; Rose v. West, 50 Ga. 474; » U. S. v. Kuhn, 4 Cranch C. C.
Roberts v. Trawick, 22 Ala. 490 ; 401 ; Quarles v. Littlepage, 2 Hen. &
Wynn v. Garland, 16 Ark. 440. As M. 401 ; Gibney v. Marchay, 34 N.
to receipt , see supra, § 1064. Y. 301; Douglass v. Davie, 2 McCord,
' Moore v. Hitchcock, 4 Wend. 219.
336
CHAP. Xm.] ADMISSIONS IN OFFERS OF COMPEOMISE. [§ 1090'
ticular account may be evidence on which it may be sustained.^
Nor will an admission of the genuineness of a signature avail
against a party to whom the paper containing the signature was
not shown .^
§ 1090. An implied admission of liability made as part of the
negotiations for a compromise, expressly for the pur- General
poses of peace (whether or no such admission be made ma^tffor"'
under the technical proviso " without preiudice " ~), Purpose of
/ _ . ■ compro-
will not be received in evidence against the* party by mjae inad-
whom it is made, when its object was merely to suggest but other-
a scheme of settlement. The policy of the law favors rdmission
amicable settlements of litigation, and therefore protects °* **'''°"
negotiations bond fide made for the purpose of effecting such set-
tlements.3 Independent of the reason just mentioned, it may be
well argued that where the communication is made because the
party is ready to offer a sacrifice for the sake of peace, this can-
not be regarded as the admission of a right on the other side.*
1 Vinal V. Burrill, 16 Pick. 401 ;
Sugar V. Davis, 13 Ga. 462.
« Infra, § 1095.
' Hoghton V. Hoghton, 15 Beav.
321 ; Cory v. Bretton, 4 C. & P. 462 ;
Healejr V. Thatcher, 8 C. & P. 388 ;
Paddock v. Forrester, 3 M. & Gr. 903;
3 Scott N. R. 734 ; Cassey v. E. R. L.
E. 5 C. P. 146 ; Skinner v. fi. R. L.
K. 9 Ex. 298; McCorquodale v. Bell, L.
K. 1 C. P. D. 471 ; Rowell v. Mont-
ville, 4 Greenl. 270 ; Rideout u. New-
ton, 17 N. H. 71 ; Perkins v. Concord
R. R. 44 N. H. 223; Gerrish v. Sweet-
ser, 4 Pick. 374; Batchelder v. Batch-
elder, 2 Allen, 105 ; Saunders v. Mc-
Carthy, 8 Allen, 42; Harrington v.
Lincoln, 4 Gray, 563 ; Gay v. Bates,
99 Mass. 263; Durgin v. Somers, 117
Mass. 55; Williams v. Thorp, 8 Cow.
201 ; Payne v. R. R. 40 N. Y. Sup.
Ct. 8 ; Wrege v. Westcott, 30 N. J.
L. 212; Reynolds v. Manning, 15 Md.
510; Paulin v. Howser, 63 HI. 312 ;
Barker v. Bushnell, 75 111. 220 ; Kin-
sey i>. Grimes, 7 Blackf. 290 ; State
». Button, 11 Wise. 371 ; Watson v.
TOL. n. 22
Williams, Harper, 447 ; Wilson v,
Hines, 1 Minor (Ala.), 255; Ferry v.
Taylor, 33 Mo. 323.
In Paddock v. Forrester, 3 Mann. &
G. 903, 919, it was held that where a
letter expressed to be without prej-
udice is replied to, neither the let-
ter nor the reply is admissible, even
though the reply is not expressed to
be without prejudice. Tindal, C. J.,
said : " It is of great importance that
parties should be left unfettered by'
correspondence which has been en-
tered into upon the understanding that
it is to be without prejudice.''
* Underwood v. Courtown, 2 Sch.
& Lef. 67 ; Thomson v. Austen, 2 D.
& R. 361 ; Robinson v. R. R. 7 Gray,
92. Supra, § 1082.
In Hoghton v. Hoghton, 15 Beav.
278, 321, before Sir John Romilly,
certain letters were written after the
dispute had arisen, with a view to a
compromise, and " without prejudice."
Their admission being objected to, it
was said that, if rejected, the court
would have before it only part of the
337
§ 1090.]
THE LAW OF EVIDENCE.
[book ni.
It has been also held that the admission of a party in a case
stated for- the opinion of the courts cannot afterwards be used
against him.^ If, however, in such negotiation a fact is conceded
as true, such concession not being made " without prejudice," or
hypothetically, or as a condition in a pending treaty, the admis-
sion may be afterwards used, for what it is worth, against the
party by whom it is made.^ When such negotiations are ad-
correspondence. " Such communica-
tions, made with a view to an amica-
ble arrangement, ought to be held
very sacred ; for if parties were to be
afterward prejudiced by their efforts
to compromise, it would be impossible
to attempt an amicable arrangement
«f differences."
In Jones v. Foxall, 15 Beav. 388,
which was a suit for a breach of trust,
Sir John Eomilly said : " I have paid
no attention to the correspondence
and negotiations which occurred
I find that the ofFers were in fact
made without prejudice to the rights
of the parties. I shall, as far as I am
able, in all cases endeavor to repress
a practice which, when I was first ac-
quainted with the profession, was
never ventured upon, but which, ac-
cording to my experience in this place,
has become common of late, viz., that
of attempting to convert offers of com-
promise into admissions or acts prej-
udicial to the person making them.
If this were permitted, the effect
would be that no attempt to compro-
mise a dispute could ever be made.
.... In my opinion, such letters and
offers are admissible for one pur-
pose only, namely, to show that an at-
tempt has been made to compromise
the suit, which may sometimes be nec-
essary; as, for instance, in order to
account for a lapse of time; but never
for the purpose of fixing the person
making them with any admissions con-
tained in such letters. And I shall do
all I can to discourage this modern,
838
and, as I think, most injurious prac-
tice."
1 Hart's Appeal, 8 Penn. St. 32.
" Nicholson v. Smith, 3 Stark. K.
129 ; Wallace v. Small, M. & M. 446 ;
Un thank v. Ins. Co. 4 Biss. 357; Cole
V. Cole, 33 Me. 542 ; Hamblett n.
Hamblett, 6 N. H. 333 ; Perkins v.
Concord, 44 N. H. 223 ; Eastman b.
Amoskeag, 44 N. H. 143 ; Marsh v.
Gold, 2 Pick. 285 ; Gerrish v. Sweet-
ser, 4 Pick. 374; Hartford Bridge Co.
V. Granger, 4" Conn. 142; Fuller r.
Hampton, 5 Conn. 416 ; Murray v.
Coster, 4 Cow. 635; Holler t;. Weiner,
15 Penn. St. 242 ; Arthur t. James,
28 Penn. St. 236 ; Cates v. Kellogg,
9 Ind. 506 ; Ashlock v. Linder, 50 111.
.169; Church v. Steele, 1 A. K. Marsh.
328 ; Mayor v. Howard, 6 Ga. 213 ;
Prussel % Knowles, 5 Miss. 90 ; Gar-
ner V. Myrick, 30 Miss. 448 ; De-
logny V. Bentoul, 2 Mart. La. 175.
See Short Mountain Co. v. Hardy,
114 Mass. 197 ; Molyneaux v. Collier,
13 Ga. 406. Supra, § 1082.
In Clapp V. Foster, 34. Vt. 580, the
court admitted evidence that the de-
fendant offered to settle the plaintiff's
claim if the latter would consent to
a continuance. See, also, Grubbs v.
Nye, 21 Miss. 443. In Cuming v.
French, 2 Camp. 106, n, an offer to
settle a note was held prima facie
proof of authenticity of signature.
In Thomas v. Morgan, 2 C, M. & R
496 ; S. C. 5 Tyr. 1085, which was
an action for injury to cattle through
defendant's mischievous dogs, an offer
CHAP. XIII.] ADMISSIONS MAY PROVE WRITINGS. [§ 1091.
mitted, however, the whole must be proved. ^ And when an offer
is made in a letter written " without prejudice," and such offer is
accepted,^ or when an admission is made in such a letter subject
to a condition, and such condition has been performed,^ then the
letter can be used in evidence against the writer, notwithstand-
' ing that it was written " without prejudice." *
§ 1091. For a long time it was an open and much agitated
question in England whether the admission by a party party-g ad-
of the contents of a written instrument could be re- mission
may prove
ceived in derogation of the principle that such instru- contents of
ments cannot be proved by parol. After numerous con-
flicting dicta and rulings, at nisi prius, the question came before
the court of exchequer in 1840. It was then ruled, that " what-
ever a party says, or his acts amounting to admissions, are evi-
dence against himself, ti,ough such admissions may involve what
must necessarily he contained in some deed or writing." ....
" The reason why such parol statements are admissible, without
notice to produce, or accounting for the absence of, the written
instrument, is, that they are not open to the same objection
which belongs to parol evidence from other sources, where the
written evidence might have been produced ; for such evidence
is excluded, from the presumption of untruth, arising from the
very nature of the case, where better evidence is withheld ;
whereas what a party himself admits to be true may be reason-
ably presumed to be so. The weight and value of such testi-
mony is another question. That will vary according to the cir-
cumstances, and it may be in some cases quite unsatisfactory to
a jury. But it is enough for the present purpose to say that the
evidence is admissible." ^
to settle was held admissible as some Howard v. Smith, 3 Scott N. R. 574;
evidence of scienter, but to be entitled Boulter v. Peplow, 9 C. B. 493 ; Pritch-
tobut little weight, as the oSer may ard v. Bagshawe, H C. B. 459; King
have been prompted by mere charity, v. Cole, 2 Exch. 628; Boileau v. Rut-
^ Scott V. Young, 4 Paige, 642. lin, 2 Exch. 665 ; Murray v. Gregory,
" In re River Steamer Co. L. R. 6 5 Exch. 468 ; R. v. Basingstoke, 14 Q.
Ch. 822 ; 19 W. R. 1130. B. 611; Ansell v. Baker, 3 C. & K.
» Holdsworth v. Dimsdale, 19.W. 145. ^
E" 798. It has been also held, where, on an
* Powell's Evidence, 4th ed. 269. action for contribution towards money
" Slatterie v. Pooley, 6 M. & W. paid on a written contract, there was
664, Parke, B. See, to same effect, evidence of the .express authority of
339
§ 1093.] THE LAW OF EVIDENCE. [BOOK HI,
§ 1092. It is true that much exception has been taken to this
modification of the rule that a written instrument cannot be
proved by parol, and it has been urged that the exception will
eat away the rule. The exception, however, is sanctioned by
the high authority of the present English practice; although
it is limited to cases in which the admission has been voluntary
by the party making it ; for he cannot be compelled to make
such admissions, nor ought questions which tend to elicit them to
be allowed.^ The same general conclusion has been reached in
the United States, so far, at least, as to hold that the contents of
a document not requiring the attestation of witnesses, may be
proved by admissions.^ But in any view the statement rehed on
must be distinctly a statement of fact, and not merely an opinion
or inference of law by the deponent.^
§ 1093. It has, however, been with mftch force objected,* that
to permit such parol evidence to be equally admissible,
of .this in proof of the contents of the instrument, with the
production of the instrument itself, is to open a va||;
field for misapprehension, perjury, and fraud, which would be
wholly closed, if the salutary rule of law, requiring that what is
in writing should be proved by the writing itself, were here, as
in other cases, to prevail. We are also reminded that Lord
Tenterden, and Maule, J., have pointedly condemned this relax-
ation of the old practice ; * and that even Parke, B., to whom the
relaxation is mainly due, has questioned whether such admis-
sions may not be sometimes quite unsatisfactory to a jury;'
the defendant to enter into the con- Grant, 186; Taylor v. Henderson, 38
tract, of the execution thereof, and Penn. St. 60 ; Gay v. Lloyd, 1 Greene
that the defendant, when informed of (lo.) 78; Bivins v. McEboy, 11 Ark.
the amount paid, did not dispute his 23; Brooks v. Ishell, 22 Ark. 488;
liability, that the contract need not he Wari^p. Valentine, 7 La. An. 184. Aa
put in evidence. Chappell b. Bray, outstanding equity in land, it has been
6 H. & N. 145. held, may be proved by a party's
* Darby v. Ousely, 1 H. & N. 1; admission. Lewis v. Harris, SI Als.
Powell's Evidence, 4th ed. 310. 689 ; Warfield v. Lindell, 30 Mo.
" See Smith v. Palmer, 6 Cush. 513; 272.
Loomis V. Wadhams, 8 Gray, 557; • Morgan «. Couchman, 14 C. B. 101.
Crichton v. Smith, 34 Md. 42; Taylor * Taylor's Ev. § 382.
V. Peck, 21 Grat. 11. For other rul- « Bloxam v. Elsie, Ry. & M. 188;
ings bearing on the same question, see Boulter v. Peplow, 9 Com. B. 501.
New York Ice Co. v. Parker, 8 ^osw. « Slatterie v. Pooley, 6 M. & W.
688; Robeson v. Schuy. Nav. Co. 3 669.
340
CHAP. Xin.] > ADMISSIONS : GENERAL EULES. [§ 1094.
while the same acute reasoner has qualified his own conclusions by
reverting to the elementary principles we have already noticed,^
as to the treacherous character of this kind of proof. For, to
apply these principles to the present issue, the witness not only
may misunderstanci what the party has said, but, by unintention-
ally altering a few of the expressions really used, may give to
the statement an effect completely at variance vrith what was in-
tended.2 fo the same effect is an opinion by a leading Irish
judge. " The doctrine laid down in that case," ^ says Chief Jus-
tice Pennefather, speaking of Slatterie v. Pooley, " is a most dan-
gerous proposition ; by it a man might be deprived of an estate
of £10,000 per annum, derived from his ancestors through reg-
ular family deeds and conveyances, by producing a witness, or
by one or two conspirators, who might be got to swear that they
heard defendant say he had conveyed away his interest therein
by deed, or had mortgaged, or had otherwise incumbered it ;
and thus, by the facility so given, the widest door would be
opened to fraud, and a man might be stripped of his estate
through this invitation to fraud and dishonesty." *
§ 1094. It must be also remembered that as a general rule
the extra-judicial admission of a party will not be re- Admissiom
ceived to prove that for which a higher class of evi- "j"*/^'!^ .
dance is required, unless such higher class of evidence cause
is not attainable.^ This rule, however, will not pre- could be
elude the putting in evidence the admissions of a party, ^^*™"'
made out of court, even though he be in court, open to examina-
tion, at the time they are offered.^
* Supra, § 318. ■ by the defendant, acknowledged, in
' Note to Earle v. Picken, 5 C. & cross-examination, the existence of a
P- S42. written agreement ; and the court held
' Lawless v. Queale, 8 Ir. Law, 385. that this agreement must be produced,
See Henman v. Lester, 12 C. B. (N. though the defendant had admitted
S) 781. that he was tenant at a particular
* See, also, Henman v. Lester, 31 rent."
L.J.C. P. 370, 371,perByles,J. ; 12 ^ Holland Co. o. Hathaway, 8
Com.B. (N. S.) 781, 782, S. C. " The Wend. 480; Morris v. Wadsworth,
case which called forth these remarks," 17 Wend. 103 ; Jameson v. Conway,
comments Mr. Taylor, "was an action 10 III. 227; Threadgill u. White, 11
for use and occupation. At the trial, Ired. L. 591. Infra, § 1098.
one of the plaintiff's witnesses, after ' Clark v. Hbugham, 2 B. & C. 149;
proving the occupation of the premises Woolway w. Kowe, 1 Ad. & El. 114 ;
341
§ 1097.]
THE LAW OF EVIDENCE.
[book ni.
Admission
cannot
prove ex-
euntion
where at-
testation is
required.
§ 1095. But whatever may be the law as to admission of the
contents of writings, it was settled in England, before
the 17 & 18 Vict. c. 125, that a party could not, by ad-
mitting the extra-judicial execution of a deed, dispense
■with the duty laid on the other si(Je of proving such
deed by the attesting witnesses.^ There can be no ques-
tion, however, that a party may make a primd facie case against
himself by admitting the execution of a note or other instrument
as to which the law does not prescribe more formal proof .^ Ad-
missions, of this kind, when non-contractual,^ maybe rebutted by
the maker on proof of mistake ; * nor are they admissible, un-
less it be shown that at the time of making them the note was
exhibited to the party making the admission.^
§ 1096. An admission, we have elsewhere seen,^ may prove
Ma rove carriage ; and an admission of a party that he had
marriage, been married according to the laws of a foreign country
renders it, so it has been held, unnecessary to prove that the
marriage had been celebrated according to the laws of that
country.'^
§ 1097. The declarations of a person deceased as to his dom-
Deciara- icil are admissible, when his intention is in question.'
domlcnad- ^^^ same mode of proof is admissible, even when par-
missibie. tjes are alive, for the purpose of determining intent.
Brubacker v. Taylor, 76 Penn. St. « See supra, §§ 1076-8.
83 ; Mason v. Poulson, 43 Md. 162 ;
Hall «. The Emily Banning, 33 Cal.
622.
To this effect, in fact, may be cited
all the cases in which admissions have
been put in evidence since the stat-
utes removing the incompetency of
parties.
1 See cases cited supra, § 725.
Where a testator bequeathed cer-
tain stock to his daughters, to stand
in the executor's name until the expi-
ration of the charter, which was re-
newed, parol declarations of the tes-
tator as to the renewal of the charter
were held inadmissible. Barrett v.
Wright, 13 Pick. 45.
» Nichols V. Allen, 112 Mass. 23 ;
Daniel v. Kay, 1 Hill (S. C), 32.
342
* Hall V. Huse, 10 Mass. 39; Sa-
lem Bank w. Gloucester Bank, 17
Mass. 1.
« Shaver v. Ehle, 16 Johns. R. 201 j
Palmer v. Manning, 4 Denio, 131 j
Glazier v. Streamer, 57 111. 91.
' Supra, § 83 et seq.
' R. V. Newton, 2 M. & Rob. 503,
per Wightman and Cresswell, JJ. ; 1
C. & Kir. 164, S. C. nom. R. v. Sim-
monsto. But see R. v. Flaherty, 2 C.
& Kir. 782; and supra, § 84 ei seq., and
infra, § 1297.
0 Brodie v. Brodie, 2 Sw. & Tr.
259; Ennis v. Smith, 14 How. 400.
» Thorndike v. Boston, 1 Mete.
(Mass.) 242 ; Kilburn v. Bennett, S
Meto. (Mass.) 199 ; Burgess v. Clark,
3 Ind. 250.
CHAP. Xni.] ADMISSIONS : GENERAL RULES. [§ 1100.
But mere vague unexecuted expressions of intent cannot be so
received.^ The date of a contract has been held to be admissi-
ble, as one among other incidents, to make up a presumption of
domicil at a particular place.^
§ 1098. We have seen elsewhere that an admission, whether
under oath on an examination, or otherwise, is not ad- „
' . But not
missible to prove record facts." It is at the same time record
competent to show by admissions the consequences
of facts stated by record. Thus a witness can be asked whether
he has not been in prison.* So, in an action for wages, an
admission by the plaintiff that his claim had been referred to an
arbitrator, who had made an award against him, has been held
admissible evidence on behalf of the defendant.^
§ 1099. An admission, as well as a confession, made under
duress, is inadmissible, even though bilateral.^ Un- Admis-
less, however, otherwise provided by statute, the f&ct luress'iti-'
that an answer was extorted from a witness, when admissible,
under examination in a court of justice, does not preclude its
reception in evidence against him in a civil issue ; ^ and the same
rule applies to an admission obtained through a bill in equity .^
Even though a witness is prevented from explaining his testi-
mony at trial, such testimony can afterwards be used against
him.9
§ 1100. The extra-judicial writings of a party, according to the
Roman standards, cannot be received in his favor, quia ^"^^'^jg
nullus idoneus testis in re sua intelligitur.^" Hence when seif-
., serving in-
comes the maxim, Scriptura pro scribente nihil prooat. admissible.
' Bangor v. Brewer, 47 Me. 97; 448; Tilley w. Damon, 11 Cush. 247;
Harvard College v. Gore, 5 Pick. 370. Foss v. Hildreth, 10 Allen, 76. Supra,
Sec Lord Somerville's case, 5 Ves. § 931.
750; Anderson v. Lanenville, 9 Moo. ' Supra, § 488 ; infra, § 1120; Grant
P. C. 325 ; Moke v. Fellman, 17 Tex. v. Jackson, Pea. R. 203 ; Ashmore v.
367; Wharton Copfl. of Laws, § 62. Hardy, 7 C. & P. 501.
' Lougee v. Washburn, 16 N. H. ' Bates v. Townley, 2 Ex. R. 157.
134; Cavendish v. Troy, 41 Vt. 99. Infra, § 1119.
' Supra, §§ 63, 64, 541, 991, 1094. » Collett v. Keith, 4 Esp. 212. See
* Supra, § 541. Milward v. Forbes, 4 Esp. 171. Infra,
' Murray v. Gregory, 5 Exch. R. § 1120.
468. 10 L. 10, D. xxii. 5.
" Stockflesh v. De Tastet, 4 Camp. " See more fully supra, §§ 170, 265;
11; Kobson o. Alexander, 1 M. & P. and see James v, Stookey, 2 Wash.
343
§ llOl.j THE LAW OF EVIDENCE. [BOOK ftl.
When offered against a party making them, such writings are
evidence, not because they are writings, but because they are
admissions made by a party against his interest. To the rule
that such statements cannot be received to further the interests
of the party producing them, the Roman practice notes the fol-
lowing exceptions: merchants' books of original entries, when
verified by the party's oath ; ^ and papers forming part of those
produced by the opposite party. But, as a general rule, state-
ments made by a party out of court, in his own favor, cannot
be received on trial, to prove his case.^
§ 1101. By our own courts the same conclusions have been
reached. A party's self-serving declarations cannot be put in evi-
dence in his own favor, whether he be living or dead at the trial.
Nor is the result changed by the statutes enabling a party to be
called as a witness in his own behalf. That which he could
prove by his sworn statements he is not permitted to prove by
statements which are unsworn. In any view, therefore, the extra-
judicial self-serving declarations of a party are inadmissible for
him, with the exceptions hereafter stated, as evidence to prove
his case.^ Thus, the declarations of a person in possession of
land, in support of his own title, are inadmissible,* and so are
self-serving declarations of possessors of chattels.^ By the same
rule a party sued on an alleged loan cannot put in evidence his
C. C. 139; Proprietary v. Kalston, 1 Ellis, 17 Mich. 351; White v. Green,
Ball. 18; Framingham Co. u. Barnard, 5 Jones (N. C.) L. 47; Gordon v.
2 Pick. 532; Robinson v. R. R. 7 Clapp, 38 Ala. 357 ; Marx w. Bell, 48
Gray, 92; Bailey v. Wakeman, 2 De- Ala. 497 ; Heard v. McKee, 26 Ga.
nio, 220 ; Beach v. Wheeler, 24 Pen'n. 332 ; Bowie v. Maddox, 29 Ga. 285 ;
St. 212; Douglass v. Mitchell, 35 Hall ». State, 48 Ga. 607 ; Tucker ».
Penn. St. 440; Nourse v. Nourse, 116 Hood, 2 Bush, 85 ; Barrett v. Don-
Mass. 101. nelly, 38 Mo. 492; Rice v. Cunning-
1 See supra, § 678. ham, 29 Cal. 492.
a Supra, §§ 619, 736. « Peabody v. Hewett, 52 Me. 33;
' Handly v. Call, 30 Me. 9 ; Bus- Morrill v. Titcomb, 8 Allen, 100 ;
well V. Davis, 10 N. H. 413; Judd v. Jackson w. Cris, 11 Johns. R. 43 7; He-
Brentwood, 46 N. H. 430; Jacobs ». drick v. Gobble, 63 N. C. 48; Sal-
Whitcomb, 10 Cush. 255; Nourse v. mons v. Davis, 29 Mo. 176 ; and cases
Nourse, 116 Mass. 101 ; North Ston- cited infra, § 1168.
ington V. Stonington, 31 Conn. 412 ; » Bradley v. Spofford, 23 N. H. 444;
Dovrns v. R. R. 47 N. Y. 83 ; Graham Swindell v. Warden, 7 Jones L. 575 ;
V. HoUinger, 46 Penn. St. 55 ; Mur- Turner v. Belden, 9 Mo. 787.
ray v. Cone, 26 Iowa, 276 ; Hogsett v.
844
CHAP. Xm.] ADMISSIONS : NOT EVIDENCE FOE DECLARANT. [§ 1102.
declarations at the time of the loan to prove that his pecuniary-
condition was such as to make it improbable that he would bor-
row money .^
§ 1102. It may, however, happen, that statements of a party
may be so interwoven with a contract as to form part Except
of it, or may be so wrought up in a transaction that ^^™ p"""'
they form a necessary incident of any narrative of such gestae, or
transaction. In such case the party's declarations are ing symp-
admissible, as we have already seen, as part of the res
gestae.^ Self-serving declarations, therefore, are admissible as
part of a transaction into which they immediately entered.^
This is so in torts, as well as contracts.* In slander, for in-
stance, for charging the plaintiff with taking the defendant's
lumber, the plaintiff's declarations at the time of taking the
lumber are admissible, as part of the res gestae, though the de-
fendant was not at the time present.* So in deceit for falsely
representing the solvency of a stranger, inducing the plain-
tiff to trust him with goods, the plaintiff's statements at the
time of the sale, that the trust was on the •ba;sis of the recom-
mendation, have been received in their behalf.^ Such declara-
tions, however, are admitted not to prove their own truth, but
to exhibit the attitude of the parties. Thus in, an action for
trespass to real estate, the point at issue being whether the de-
fendant had acquired a right of way over a field belonging to the
plaintiff, it was held, in Connecticut, admissible for the plaintiff
to put in evidence his declarations while ploughing the field,
that the party claiming the right of way had no such right, but
only used the same by the owner's permission ; the evidence
being received not as proof of the assertion, but as showing that
ihe act of ploughing was the assertion of a right inconsistent
1 Douglass V. Mitchell, 35 Penn. St. MeCloy, 36 Iowa, 659 ; Hart t>. Free-
440. man, 42 Ala. 567 ; Head v. State, 44
" See supra, §§ 258, 264 ; Milne v. Miss. 731; Sherley v. Billings, 8 Bush,
Leisler, 7 H. «e N. 786; Green r. Be- 147; Tevis v. Hicks, 41 Cal. 123 ; Col-
dell, 48 N. H. 546 ; Blake v. Damon, quitt v. State, 34 Tex. 550.
103 Mass. 199 ; Beardslee v. Richard- ' Supra, § 262.
son, 11 Wend. 25; Tomkins v. Salt- * See supra, § 2G3.
marsh, 14 Serg. & R. 275 ; Louden v. ' Polston v. See, 54 Mo. 291.
Blythe, 16 Penn. St. 532 ; Potts v. ' Fellowes v. Williamson, M. & M.
Everhardt, 26 Penn. St. 493 ; Purkiss 306.
V. Benson, 28 Mich. 538 ; Stephens v,
345
§1103. J
THE LAW OF EVIDENCE.
[book III.
with the alleged right of way.^ Another exception to the rule
that self-serving declarations are inadmissible, is to be found in
the reception, under the limitations already noticed, of a party's
declarations as to his physical or mental condition, when such
are in controversy.^
§ 1103. A party offering a written admission of ^his opponent,
The whole inust offer the whole ; a part cannot be picked out, but
rwritten tl^s whole context, so far as qualifying the sense, must
admission ]^q introduced.^ The admission of part of an account,
must be • _ _ _ , '^ _ '
proved. for instance, involves the admission of the whole.* This
however, does not require the admission of distinct items in ac-
count books ; " nor other writings in the same letter-book or com-
pilation.8 A letter can be put in evidence without offering that
to which it was a reply,' though if what purports to be an entire
correspondence be ottered, it must be offered complete,^ and if a
letter is put in, this carries with it all memoranda on the letter ;*
nor can a writing go in evidence without carrying with it its
indorsements. 1° A letter addressed to a party, found in his pos-
' Sears v. Ilayt, 37 Conn. 406. See
Carrig ». Oaks, 110 Mass. 144.
s Supra, §§ 2C8-9.
« Supra, §§ G17-20, 924; Bermon
V. Woodridge, 2 Dougl. 788 ; Ld.
Bath V. Batliursca, 5 Mod. 10 ; Cobbett
i: Grey, 4 Ex. R. 729 ; Percival v.
Caney, 4 De Gex & Sm. 622; Mut.
Ins. Co. V. Newton, 22 Wall. 32 ;
Storer v. Gowen, 18 Me. 174; Web-
ster V. Calden, 55 Me. 165 ; Whitwell
V. Wyer, 1 1 Mass. 6 ; Lynde v. Mc-
Gregor, 13 Allen, 172 ; Hopkins v.
Smith, 11 Johns. R. 161; Clark v.
Crego, 47 Barb. 599 ; Barnes v. Allen,
1 Abb. (N. y.) App. Ill ; Blair i».
Hum, 2 RawU, 1 04 ; Searles v. Thomp-
son, 18 Minn. 316 ; Satterlee v. Bliss,
36 Cal. 489 ; People v. Murphy, 39
Cal. 62 ; Harrison v. Henderson, 12
Ga. 19; Jordan v. Pollock, 14 Ga. 145;
Fitzpatrick ,'. Harris, 8 Ala. 32; How-
ard V. Newsom, 5 Mo. 523. See Har-
rison V. Henderson, 12 Ga. 19; Span-
agel V. Dellinger, 3S Cal. 278.
346
* See, supra, §§6 19, 620, 924; infra,
§ 1134.
' Catt V. Howard, 3 Stark. R. 6 ;
Reeve v. Whitmore, 2 Dr. & S. 446."
" Sturge V. Buchanan, 10 Ad. & E.
598; Darby v. Ouseley, 1 H. & N. 1.
' Barry more v. Taylor, 1 Esp. 326;
De Medina i;. Owen, 3 C. & K. 72 ;
North Berwick Co. v. Ins. Co. 52 Me.
836 ;"Hayward Rubber Co. v. Dunck-
lee, 30 Vt. 29; Gary v. Pollard, 14 Al-
len, 285 ; Stone v. Sanborn, 104 Mass.
819; Wiggin v. R. R. 120 Mass. 201;
Newton V. Price, 88 Ind. 608 ; Lesj
ter V. Sutton, 7 Mich. 331. See Mer-
ritt V. Wright, 19 La. An. 91; New-
ton V. Price, 41 Ga. 186. Infra, §
1127.
8 Roe V. Day, 7 C. & P. 705; Wat-
son V. Moore, 1 C. & K. 625 ; Bryant
V. Lord, 19 Minn. 896; Stockham v.
Stockham, 32 Md. 196; Merritt v.
Wright, 19 La. An. 91.
» Dagleish v. Dodd, 5 C. & P. 238.
See supra, § 619.
" Supra, § 619; infra, § 1185.
CHAP. XIII.] ADMISSIONS : WHOLE CONTEXT MUST GO IN. [§ 1106.
session, cannot be put in evidence, without showing he replied
to it, or in some other way sanctioned its contents.^
§ 1104. In equity, however,^ if a plaintiff read particular facts
from an answer, the defendant cannot by the English -^hoie of
practice, as part of the proof of the case, read other answer in
. . . . equity and
facts, unless qualifying and .explaining the meaning of sworn re-
those read by the plaintiff.^ " It is an established rule not be
of evidence in equity, that where an answer, which is ^^^ '
put in issue, admits a fact, and insists upon a distinct fact by
way of avoidanee, the fact admitted is established, but the fact
insisted upon must be proved; otherwise the admission stands
as if the fact in avoidance had not been averred." * But it is
said that on a motion for a decree the defendant's answer will be
treated as an affidavit, of which the whole must be read.^
§ 1105. But at common law, admissions contained in pleas, or
answers in chancery, cannot be offered separately from „ ,
, . , , , T Otherwise
the documents to which they are attached ; the whole at common
document must go in.^ Even an answer in chancery
cannot in common law practice be read, without the bill to which
the answers are given, should this be required by the party
against whom the answers are offered.''
§ 1106. Although the exhibits attached to the answers of a
person, when so sworn, cannot be read without the ex- PfagUgg ^3
aminations,^ yet a party obtaining knowledge of such to exhibits,
documents by a suit in chancery may compel their admission in
a suit at common law, without putting in evidence the chancery
proceedings.^ " It is surmised," said Lord Denman, while pro-
1 Com. V. Eastman, 1 Cush. 189. ton, 1 Exch. C. 617; Bath u. Bather-
Infra, § 1154. sea, 5 Mod. 10.
' See supra, § 1099; infra, § 1112. As to pleadings, see infra, § 1110.
' Davis V. Spurling, 1 Russ. & M. As to equity practice, infra, § 1112.
68; Bartlettu. Gillard, 3 Kuss. 156. ' Pennell v. Meyer, 2 M. & Rob.
* Swayne, J., Clements v. Moore, 6 98; 8 C. & P. 470. But see Ewer v.
Wall. 299-315. Ambrose, 4 B. & C. 25; Rowe v. Bren-
' Stephens v. Heathcote, 1 Drew, ton, 8 B. & C. 737.
& Sm. 138 ; Taylor's Evidence, § ' See Holland v. Reeves, 7 C. & P.
660. 36. Supra, § 618.
' Percival v. Caney, 4 De Gex & ' Long v. Champion, 2 B. & Ad.
Sm. 623; Bermon v. Woodbridge, 2 284 ; Sturge u. Buchanan, 10 Ad. &
Dougl. 788 ; Marianski v. Cairns, 1 E. 605. See Falconer v. Harison, 1
Macq. Sc. Cas. 212; Baildon v. Wal- Camp. 171,
347
§ 1108.] THE LAW OF EVIDENCE. [BOOK HI.
nouncing the judgment of the court " that an unfair advantage
had been taken of the defendant in obtaining a knowledge of
these letters through a suit in chancery, and then producing
them without the answers, which may have greatly qualified
and altered their effect. But I cannot think that a judge at
nisi prius has anything to do with these considerations : he is
to inquire only whether due notice has been given ; whether
the documents have been proved to exist ; whether copies are
well proved." ^
§ 1107. In actions against officers for miscoftduct in office,
Whole of the introduction of particular writs, or other documents
f^ai^proc?^ issued by them, to charge them, carries. with it the in-
usuaUy troduction of any excusatory matter contained in such
goes in. documents.^ But it may be now considered settled
that when a warrant is put in evidence, to charge a sheriff or
other officer with misconduct in making a wrongful seizure, the
sheriff is not relieved from producing justificatory evidence by
the fact that such justification is recited in the warrant put in
evidence against him.^ In equity, where an answer contains an
admission of the receipt of money, this admission is not to be re-
garded as drawing into it and identifying with it statements, in
other parts of the answer, of independent payments or settle-
ments of the money so admitted to be received.*
§ 1108. Where part of a conversation is put in evidence by
So of one party, the other is entitled to put in the whole,
vant por-°' ^^ ^^^ ^^ it is relevant. A., f<y instance, cannot put
conversa- ^^ evidence against B. remarks of B. containing ad-
tion. missions, without putting in evidence the substance of
* Sturge V. Buchanan, 10 A. & E. 471 ; Haynes o. Hayton, 6 L. J. K.
605. See, further, Long v. Champion, B. (O. S.) 231, recognized in Bessey
2 B. & Ad. 2^86 ; Hewitt v. Piggott, 5 v. Windham, 6 Q. B. 172, cited in
C. & P. 75,'77; Jacob W.Lindsay, 1 Taylor on Evidence, § 658.
East, 460 ; Falconer y. Hanson, 1 « White v. Morris, 11 C. B. 1015;
Camp. 171 ; 1 Ph. Ev. 341. In the Glave v. Wentworth, 6 Q. B. 173, n.;
latter cases it was held, that using a Bowes v. Foster, 27 L. J. Ex. 463 ;
party's oral admission against him Taylor on Evidence, § 659. See. infra,
necessitates the introduction of papers § 1118; supra, §§ 824, 834.
referred to by him, without which his * Robinson v. Scotney, 19 Ves.
statement would be incomplete. 584 ; Freeman v. Tatham, 5 Hare,
" Haylock v. Sparke, 1 E.. & B. 329.
348
CHAP. Xffl.J ADMISSIONS : WHOLE CONTEXT MUST GO IN. [§ 1109.
all that related to such remarks in the conversation.^ " Nor can
it make any difference whether the part is brought out by the
direct examination of a party's own witness or the cross-exam-
ination of the witness of his adversary." ^ But collateral state-
ments are not made admissible because part of the conversation ;
nor can they be introduced, by means of cross-examination, to
make out an iadependent case for the party by whom they are
made unless they are part of the context of the admission re-
ceived.^ Nor does the limitation exact the introduction of in-
terviews subsequent to that in which the admissions proved were
made.* If the substance be proved, it is not necessary to repro-
duce the words.*
§ 1109. When the testimony of a witness, as given in another
cause, is offered, the whole relevant portion of the tes- So of tes-
timony, including cross-examination as well as exam- p™duoed'
ination, must be given ; ® and where the plaintiffs, who f ™™g*
were assignees of a bankrupt, gave in evidence an ex- *"»'•
amination of the defendant before the commissioners, as proof
that he had taken certain property, the court held that they
thereby made his cross-examination evidence in the cause ; and
as, in this cross-examination, the defendant had stated that he
had purchased the property under a written agreement, a copy
* Queen Caroline's case, 2 B. & B. Blight v. Ashley, Pet. C. C. 15; Bar-
297; Beckham v. Osborne, 6 M. & Gr. num v. Barnum, 9 Conn. 242 ; Fox v.
771; Thomson v. Austen, 2 S. & R. Lambson, 7Halst. 275; Hatch v. Pot-
361 ; Fletcher v. Froggatt, 2 C. & P. ter, 7 111. 725 ; Edwards v. Ford, 2
566; Storer v. Gowen, 18 Me. 174; Bailey, 461; Ward v. Winston, 20
Kipley v. Paige, 12 Vt. 353; O'Brien Ala. 167. Supra, § 1100.
V. Cheney, 5 Cush. 148 ; Bristol v. * Adam v. Fames, 107 Mass. 275.
Warner, 19 Conn. 7; Hopkins v. ^ Hale v. Silloway, 1 Allen, 21;
Smith, 11 Johns. 161; Stuart v. Kis- Mays v. Deaver, 1 Iowa, 216: Dennis
sam, 2 Barb. 493; Fox v. Lambson, 3 v. Chapman, 19 Ala. 29. See fully §
Halst. 275; Wolf Creek Diamond Co. 514.
V. Schultz, 71 Penn. St. 185; Phares « Goss v. Quinton, 3 M. & G. 825;
V. Barber, 61 111. 271; Miller v. E. R. Ridgway v. Darwin, 7 Ves. 404; Rob-
52 Ind. 51; Overman v. Coble, 13 Ired. inson v. Scotney, 19 Ves. 584; Smith
L. 1; Bradford u. Bush,- 10 Ala. 386; v. Biggs, 5 Sim. 391; Tibbetts v.
Howard u. Newsom, 5 Mo. 523. Flanders, 18 N. H. 284; Marsh v.
" Sharswood, J., Wolf Creek Dia- Jones, 21 Vt. 378; Woods w.Keyes, 14
mond Coal Co. v. Schultz, 71 Penn. St. Allen, 236; Com. v. Richards, 18 Pick.
185. 434; Gildersleeve v. Caraway, 10 Ala.
» Prince v. Samo, 7 A. & E. 627; 260. Supra, § 180.
349
§ lllO.J THE LAW OF EVIDENCE. [BOOK III,
of which was entered as part of his answer, this statement was
considered as some evidence on his behalf of the agreement and
its contents ; and that, too, though the absence of the document
was not accounted for, nor had notice been given to the plaintiffs
to produce it.i The whole testimony must be taken together.
One portion without the other is incompetent. It is not, how-
ever, necessary that the testimony should be given verbatim.
Its substance is enough.^
II. JDDICIAX ADMISSIONS.
§ 1110. A confessio, to be Judicialis, must be before a judge
Admis- competent to take jurisdiction of the particular suit, and
^'16^0™- *^® ^^^* must be brought regularly before him. The
elusive. presence, actual or constructive, of the judge, is as
essential to the solemnity of the confessio as is that of the notary
to the solemnity of the instrumentum puhlioum.^ Nor is the
admission a bar if in an ex parte proceeding ; it must be on an
issue accepted by the other side, in order to bind either.* The
appearance in- court, however (by person or attorney), of the
other side, is such an acceptance. Absente adversaria, the con-
fession is operative only quae solam voluntatem confitentis de-
clarat, or in his quae dependent solum ex voluntate confitentis.^
But when formally made, a judicial confession is conclusive as to
the issue, unless shown to have been made by mistake or to have
been secured by fraud.^ And it may be used against the party
making it in all other cases in which it is relevant, though it may
not in such cases work an estoppel.^
1 Goss 0. (Juinton, 3 M. Se G. 825; 367; Perry v. Simpson Co. 40 Conn.
Taylor's Ev. § 658. 313. Supra, § 838; infra, § 1116.
* Supra, §§ 180, 514. ' So far as concerns the particular
« Tancred, p. 211; Mascard. concl. trial, "a mere denial in an answer
347, nr. 53. will not allow a defendant to insist
* See supra, § 1078. upon a fact brought out by the plain-
^ Mascard. concl. 348, nr. 1. tiff's evidence, although, it the mat-
' Supra, §§ 837-8 ; infra, § 1116 ; ter had been set up by way of defence,
Marsh v. Mitchell, 26 N. J. Eq. 497; it would have availed to defeat the
Gridley v. Conner, 4 La. An. 416; action. Brazill v. Isham, 2 Kern. 9.
Denton v. Erwin, 5 La. An. 18 ; Edson For a still stronger reason, a party
V. Freret, 11 La. An. 710. who formally and explicitly admits by
' R. V. Fontaine Moreau, 11 Q. B. his pleading that which establishes the
1033; Bradley v. Bradley, 2 Fairf. plaintiff's right will not be suffered to
350
CHAP. xm.J
JUDICIAL ADMISSIONS.
[§ 1112.
ing. that
which ia
not dis-
puted is
admitted.
§ 1111. It should be noticed, in respect to pleas in abatement,
that where defendant pleads generally the non-joinder
of other parties as co-defendants, such plea is not divis- in abate-
ible ; but if it fails in part, it must fail altogether.^ "^^ '
When a plea of abatement is decided against a defendant, the
judgment is final, when the action is for a certain definite sum.^
It is otherwise when the judgment is interlocutory, in which
case liability only to nominal damages is admitted.^
§ 1112. So far as concerae the particular suit in which the
plea is entered, it may be generally declared that when- in piead-
ever a material averment well pleaded is passed over
by the adverse party without denial, whether this be
by pleading in confession and avoidance, or by de-
murring in law, or by suffering judgment to go by default, it is
thereby, for the purpose of pleading, if not for the purpose of
trial before the jury, conclusively admitted.* "It is a funda-
mental rule in pleading, tha,t a material fact asserted on one
side, and not denied on the other is admitted."^ The distinct-
ive effects of demurrers have been already discussed.®
deny its existence, or to prove any-
state of facta inconsistent with that
admission. No application was made
to the court to be relieved from the
effect of this admission, or to weaken
or modify its full import ; and, while
it thus stood, in the language of Wood-
ruff, J., in Robbins v. Codman, 4 E.
D. Smith, 325, ' after such an admis-
sion it was not necessary for the plain-
tiffs to prove it, nor would it be per*
mitted to the defendant to deny it.' "
Bacon, J., Paige v. Willet, 38 N. Y.
31.
1 Hill V. White, 6 Bing. N. C. 26.
^ Pasmore v. Bousfield, 2 Stark. R.
298.
' Weleker v. Le Pelletier, I Camp.
481; Morris v. Lotan, 1 M. & Rob.
233. See per Pollock, C. B., in Crellin
V. Calvert, 14 M. & W. 18, 19, and
per Rolfe, B., in Ibid. 22; and see
Crellin v. Calvert, 14 M. & W. 11.
* Taylor's Ev. § 748; citing Steph.
PI. 248; Jones v. Brown, 1 Bing. N.
C. 484; De Gaillon v. L'Aigle, 1 B.
& P. 368 ; Prowse v. Shipping Co. 13
Moo. P. C. 484. See, also, Coffin v.
Knott, 2 Greene (Iowa), 582.
5 McAllister, J., Simmons i;. Jen-
kins, 76 111. 482; citing Dana v. Bry-
ant, 1 Gilm. 104; Pearl u. Wellman,
3 Ibid. 311; Briggs v. Dorr, 19 Johns.
95; Jack v. Martin, 12 Wend. 316;
Raymond v. Wheeler, 9 Cow. 295.
' See supra, § 840.
The English equity practice in this
respect is thus recapitulated by Mr.
Taylor (Ev.§ 759): —
" First, every bill which is ordered
to be taken pro confesso may be
read as evidence of the facts therein
contained, in the same manner as if
such facts had been admitted to be
true by the defendant's answer. See
11 G. 4 and 1 W. 4, c. 36, § 14 ; Cons.
Ord. Ch. 1860, Ord. xxii. Next,
where a cause is heard upon bill and
answer, the answer is admitted to be
true on all points. See Churton v.
351
§ 1114.]
THE LAW OF EVIDENCE.
[book m.
§ 1113. As we have already had occasion abundantly to see,
So, also, when a suit is brought on a former judgment, the rec-
toought ord of such judgment cannot, unless on proof of fraud
upon for- Qj. mistake: or non-identity, be disputed in the second
mer juag- ' . j ' -i
ment. suit.^ Nor is this rule limited to cases where the suit
is simply for the revival of a judgment, or for its transfer to
another jurisdiction. Thus if an executor or administrator con-
fess judgment, or suffer it to go against him by default, he
thereby admits assets in his hands, tnd hence he cannot be per-
mitted to dispute the fact, in an action on such judgment, based
on a devastavit.^ Some proof must indeed be given that the
assets have been wasted, in order to charge the executor or ad-
ministrator personally in such a case ; but the slightest evidence
has been held enough for this purpose.^ •
§ 1114. It was at one time intimated that paying money into
court admits everything which the plaintiff would have to prove
Frewen, 35 L. J. Ch. 692; and no
other evidence is admitted, unless it
be matter of record to which the
answer refers, and which is provable
by the record. Cons. Ord. Ch. 1860,
Ord. xix. r. 2. Then, it is generally-
true that, where a defendant, in his
answer to a bill, admits the existence
and contents of a document, the plain-
tiff may use such admission for the
purposes of the suit, without produc-
ing the document as evidence at the
hearing. M'Gowan v. Smith, 26 L.
J. Ch. 8, per Kinde'rsley, V. C. ; Lett
V. Morris, 4 Sim. 607. Still, a de-
murrer is regarded by courts of equity
as simply raising the question of law,
without any admission of the truth of
the allegations contained in the bill, —
so that if the demurrer be overruled,
an answer may still be put in (as to
when a party may plead and demur to
the same pleading at the same time at
common law, see 15 & 16 Vict. c. 76,
§ 80); and a plea is merely a state-
ment of circumstances sufficient to
show, that, supposing the facts charged
to be true, .the defendant is not bound
352
to answer. It follows from this state
of the law, that in any future action
between the same parties, neither the
demurrer nor plea can be received in
evidence, as amounting to an admis-
sion of the facts charged in the bill.
Tomkins v. Ashby, M. & M. 32, per
Abbott, C. J.
That affidavits and answers may be
put in evidence against the party mak-
ing them, see infrii, §§ 1116, 1119.
The Roman law is given supra,
§461.
* See, as to Massachusetts practice,
Elliott V. Hayden, 104 Mass. 180.
As to how far introducing depositions
or answer in chancery necessitates ad-
mission of bill, see supra, § 828.
* See supra, § 768 et seq.
' Skelton v. Hawling, 1 Wils. 258 ;
Re Trustee Relief Act, Higgins's
Trusts, 2 Giff. 562.
As to inventories as admissions,
see infra, § 1121.
» Leonard ». Simpson, 2 Bing. N. C.
176, 180, per Tindal, C. J. ; 2 Scott,
335, S. C. See, also, Cooper w. Taylor,
6 M. & Gr. 989.
CHAP. XIII.] ADMISSIONS IN PLEADINGS. [§ 1114.
in order to recover the money.^ The better opinion, however,
now is that payment into court upon the indebitatus pa,,in
counts admits only a liability, to the extent of the monejMnto
• . •' •' court IS an
money paid in, on one or more of the contracts in the admisaion
declaration ; and it would appear that, practically, the
contract must be proved.^ But if in a statement of claim the
claim is based upon a special contract, payment into court is an
admission of such contract,^ to the extent to which it is obligatory
upon the plaintiff to prove it,* and an admission of the specific
breach in respect of which the payment is made.^ Beyond this
sum, however, damages are not admitted; nor is there an ad-
mission of any sum to which the action does not apply. Thus,
while payment into court in an action upon a bill or a promis-
sory note admits the instrument, and also, primd facie, admits
the precise sum to be due upon it,^ yet, if the instrument be pay-
able by instalments, such payment admits only that the sum
paid was due upon the bill or note, and does not preclude the
defendant from pleading the statute of limitations as to any fur-
ther sum.'' A defendant also, by so paying, is not precluded
from taking any other objection, in order to limit the operation
of the contract declared on, and to prevent the plaintiff from re-
covering more than the amount that was really paid in.^ A like
qualified admission was recognized in a case where the declara-
tion, after stating that the defendant and another were indebted
to the plaintiff in a certain sum, to wit, £250, but that the debt
was barred by the statute of limitations, averred that the de-
fendant afterwards, and within six years from the commencement
of the suit, signed a written promise to pay his proportion of the
debt, which proportion amounted to a certain sum, to wit, a
moiety of the debt, and then assigned non-payment as a breach.
In this case it was held that the defendant, by paying 10s. into
court, admitted the contract and breach but disputed the amount
due.9
* Per cur. Dyer v. A^hton, 1 B. & ' Tattenhall v. Parkinson, 2 M. &
C. 3. W. 752.
" Kingham v. Robins, 5 M. & W. 94. ' Reid v. Dickons, 5 B. & Ad. 699.
» Arelier v. English, 1 M. & G. » Cox v. Parry, 1 T. R. 464.
876; Powell's Ev. 267. » Lechmere v. Fletcher, 1 C. & M.
* Cooper V. Blick, 2 Q. B. 915. 623.
" liucker v. Palsgrave, 1 Camp. 550. That paying money into court ad-
VOL. II. 23 353
§ 1116.] THE LAW OF EVIDENCE. [BOOK in.
§ 1115. In actions of tort the law has been thus comprehen-
sively stated : i —
If " the declaration is general and unspecific, the payment of
money into court, although it admits a cause of action, does not
admit the cause of action sued for ; and the plaintiff must gilve
evidence of the cause of action sued for before he can recover
larger damages than the amount paid into court. On the other
hand, if the declaration is specific, so that nothing would be due
to the plaintifE from the defendant unless the defendant admitted
the particular claim made by the declaration, we think that the
payment of money into court admits the cause of action sued
for, and so stated in the declaration." ^ The conclusion above
given was not reached, however, without some faltering. The
court of queen's bench, to use the summary of a learned Eng-
lish commentator, " ruled one way,^ the court of common pleas
ruled another ; * and the barons of the exchequer, in their anx-
iety to be right, ruled both ways." ^ But the judgment of Jervis,
C. J., as above given, may be regarded as a final settlement of
this vexed question.^
§ 1116. We have already noticed that the pleadings of a party
pieadin ^'^ '^^^ *^^^® ^^Jf under certain circumstances, be used,
in other against the same party in another case.' It may here
cases may , , , . i. */ */ ^
be admis- be incidentally observed, that an answer under oath is
to be regarded as admissible against the party making
it, in all independent suits in which it is relevant. As is said by
mits only the special contract set out held the court, was, what must the
in the declaration only to that extent plaintifE have proved, had non as-
to which the plaintiff is hound to sumpsit been pleaded, and it was de-
prove it, see Cooper v. Blick, 2 Q. B. cided that the former averment was
915; where the plaintifE, having [de- material, and the latter immaterial,
clared upon a contract by the defend- * Jervis, C. J., in Perren v. Mon-
ants to employ him, to wit, in the mouthshire R. Co. 11 C. B. 863.
capacity of editor of a newspaper, at * Powell's Evidence, 4th od. 287.
a certain salary, to wit, at the rate of ' Ley land v. Tancred, 16 Q. B.
£400 per annum, the defendants paid 664.
money into court. It was held that * Soreger ii. Carden, 11 C. B. 851.
on this state of the pleading, they ad- ' Story v. Finnis, 6 Ex. R. 123;
mitted the capacity in which the plain- Knight v. Egerton, 7 Ex. R. 407.
tifE had engaged to serve them, but ' Taylor's Ev. § 765.
not the amount of salary which they ' Supra, § 838.
had agreed to pay him. The test, so
364
CHAP. XIII.] ADMISSIONS IN PLEADINGS. [§ 1117.
a learned expositor,^ " a person's answer in chancery is evidence
against him, by way of admission, in favor of a person who was
no party to the chancery suit ; for the statement, being upon
oath, cannot be considered conventional merely." ^ One de-
fendant, however, cannot be affected by his co-defendant's an-
8wer.3
Collaterally, it should be remembered, pleas are not to be re-
garded as admitting that which they do not contest. A plea of
confession and avoidance, it is true, is to be regarded as admit-
ting, for the purposes of the particular issue, the existence of the
claim which it seeks to avoid, by the introduction of an avoiding
defence ; but even such a plea may, on due cause shown, be
withdrawn, and one traversing the plaintiff's cause of action
substituted. So far as concerns collateral actions, a plea setting
up an avoiding defence cannot be treated as admitting the plain-
tiff's claim. The defendant, for instance, pleads payment ; and
this, it may be said, admits the debt alleged to have been paid.
But this conclusion does not necessarily result. A man may pay
an unjust claim with which he is harassed ; and the fact that he
pays it once, without taking due proof, is no reason why he
should pay it a second time. " Non utique existimatur confi-
teri de intentione adversarii, quocum agitur quia exceptione
utitur." *
§ 1117. The qualities of an estoppel, which are imputable to
a party's pleas, so far as concerns the particular case suoh ad-
in wHich they are pleaded, are not imputable to such "/e'rebut-
pleas when offered in evidence collaterally.^ Thus '^'''«-
^ Phillipps on Evidence, vol. l,Van principle is very well settled that the
Cott's ed. 1849, p. 366. answer of one defendant cannot be
" See, to same effect, Cook v. Barr, used as evidence against his co-defend-
44 N. Y. 158. See, also, cases cited ant. Stewart v. Stone, 3 G. & J.
supra, §§ 838, 1099. 614; Hayward v. Carroll, 4 H. & J.
« Infra, § 1199. 520 ; Calwell v. Boyer, 8 G. & J. 149."
"It is contended by the appel- Grason, J., Reese v. Keese, 41 Md.
lant's counsel in his brief that, the 568-59.
answer of Jacob Reese to the bill * L. 9, D. de exceptionib. xli. 9. See
of complaint is competent evidence Crump v. Gerock, 40 Miss. 765 ; Kim-
against the other defendants, and that ball v. Bellows, 13 N. H. 68 ; and see
the admissions therein made are suffi- fully supra, § 839.
oient proof of the agreement of sale " See supra, §§ 760, 837-8.
and its part performance. But the
355
§ 1119.J THE LAW OF EVIDENCE. [BOOK III,
where a plea to an action on a bond set out a corrupt agreement
between the parties irrespective of the bond, and then went on
to aver that the bond was given to secure, among other moneys,
the sum mentioned in the said agreement ; and the replication,
tacitly admitting the corrupt agreement, traversed the fact of
the bond having been given in consideration thereof, but the
plaintiff failed on this issue ; it was held, that the admission was
available for the purpose of that suit only ; and, consequently,
the plaintiff was at liberty to dispute the corrupt nature of the
agreement, in a subsequent action on a deed, which was signed
by the defendant at the same time with the bond by way of col-
lateral secui'ity.^
§ 1118. What has been said of pleading equally applies to
So of process. A party by issuing pi-ocess, primd facie ad-
process, ixiits the facts which such process assumes.^ Thus
where a magistrate was sued in trespass for assault and false
imprisonment, the warrant of commitment put in evidence by
the plaintiff was held to be admissible on behalf of the de-
fendant, as proof of the information recited in it.^ It has been
even held, in a case where an under-sheriff's letter was pro-
duced by the plaintiff to affect the defendant, that the letter
was primd facie evidence also of certain facts stated therein,
which tended to excuse the sheriff.*
§ 1119. That an admission in pleading may be effectually
Affidavits ^^^'^ against the party making it, has been already
and an- seen. It may be here repeated that an admission, made
swers and • a- •< ■
bills in in an affidavit, though not necessarily an estoppel, is
' Carter v. James, 13 M. & W. 137. seizure was made by the authority of
See Rigge v. Burbidge, 15 M. & W. the law. This ruling, however, has
598; 4 Dowl. & L. 1, S. C; and Hutt been somewhat qualified by a subse-
V. Morrell, 3 Ex. R. 241, per Pollock, quent decision of the court of common
C. B.; Taylor's Ev. § 747. pleas. White v. Morris, 11 Com. B.
" See supra, § 828 et seq. In Bessey 1015. See, also, Bowes v. Foster, 27
B. Windham, 6 Q. B. 166, in order to L. J. Ex. 263, per Watson, B. ; Tay-
fix a sheriff in an action of trespass, lor's Ev. § 659. See supra, § 1107.
the plaintiff put in the warrant under 'iHaylock v. Sparke, 1 E. & B.
which the seizure was made; and as 471.
this recited the writ of f. fa., the < Haynes .;. Hayton, 6 L. J. K. B.
court of queen's bench held that it (O. S.) 231, recognized in Bessey w.
was some evidence of the writ, and, Windham, 6 Q. B. 172; and see su-
consequently, that it tended to pro- pra, §§ 83Sa, 887.
tect the sheriff, as showing that the
366
CHAP. XIII.J ADMISSIONS IN PLEADINGS AND PROCESS. [§ 1120.
from its deliberativeness and solemnity entitled to an chancery
authority much greater than an ordinary conversa- jS^vidence
tional admission.! But an answer in chancery, though pfrty mlk-
sworn to, is not conclusive against the party making it ;,^ '"S "lem.
though of course it is primd facie proof.^ A bill in chancery, it
is said, is not admissible at all against the plaintiff in proof of
the admissions it contains, since the facts stated therein are re-
garded as nothing more than the mere suggestions of counsel.*
The question how far equity pleadings are to be introduced as a
whole has been already discussed.^
§ 1120. The admissions of a party, when examined as a witness
in another case, may be used against him in a subse- Aamigsjons
quent civil issue ; ^ nor is such evidence excluded by the "* * P^^'y
'■ ' •' whpn ex-
fact that the party against whom his former evidence amined as
,., -IT mi 1 witness.
is produced is present at the trial.' The same rule ap-
plies when a party is examined in his own behalf ; in which case
his admission can be used against him in subsequent stages of the
same suit, or in other suits. ^ It is no objection to the admission
of such evidence that the witness had not the opportunity of fully
explaining himself ; ^ nor that the questions were irrelevant ; i"
nor that the witness answered under compulsion.^!
' R. V. Clarke, 8 T. R. 220 ; Thornes * Boileau v. Rutlin, 2 Ex. R. 665 ; Doe
V. White, Tyr. & Gr. 110; Doe v. v. Sybourn, 7 T. R. 3, per Ld. Kenyon.
Steel, 3 Camp. 115; Forrest i». For- « Supra, §§ 1104-9.
rest, 6 Duer, 102; Bowen v. De Lattre, « Supra, §§ 488, 537; Stockflesh v.
6 AVhart. R. 430; Fulton v. Gracey, De Tastet, 4 Camp. 11; Robson ».
15 Grat. 314; Snydacker y.Brosse, 51 Alexander, 1 M. & P. 448; Ashmore
111. 357; 111. Cent. R. R. v. Cobb, 64 v. Hardy, 7 C. & P. 501; Carr v.
111. 143; Trustees v. Bledsoe, 5 Ind. Griffin, 44 N. H. 510; Tooker i;. Gor-
133; Davenport v. Cummings, 15Iowa, mer, 2 Hilt. (N. Y.) 71. See Beeck-
219 ; Mushat v. Moore, 4 Dev. & B. L. man v. Montgomery, 14 N. J. Eq. 106 ;
124. See, as to effect of answers un- Mitchell v. Napiei-, 22 Tex. 120.
deroath, Elliott w. Hay den, 104 Mass. ' Lorenzana v. Camarillo, 45 Cal.
180; Knowlton v. Moseley, 105 Mass. 125. Supra, § 1004.
136; Root V. Shields, 1 Woolw. 340; « McAndrews v. Santee, 57 Barb.
Cook V. Barr, 44 N. Y. 158; Wylder 193; Woods v. Gevecke, 28lowa, 561.
V. Crane, 53 111. 490; Lawrence v. See supra, §§ 488,1099. As to affi-
Lawrenco, 21 N. J. Eq. 817. davits by party, see § 1120.
= Doe V. Steel, 3 Camp. 115; Cam- » CoUett v. Keith, 4 Esp. 212. See
eron v. Lightfoot, 2 W. Bl. 1190; supra, § 1099.
Studdy I). Sanders, 2 D. & R. 347; i» Smith v. Beadnell, 1 Camp. 30;
De W^helpdale v. Milburn, 5 Price, 481. Stockflesh v. De Tastet, 4 Camp. 11.
' Bates V. Townley, 2 Ex. R. 157. " Supra, § 1099.
357
§ 1122.] THE LAW OF EVIDENCE, [BOOK III.
§ 1121. The inventory filed by an executor or administrator,
Inventory when s worn to by such officer or his agent, is primd facie
gfon by ei- V^°^^ 0* ^^^ facts it states ; and the executor or ad-
ecutor. ministrator, who has pleaded plene administravit, will
be forced to show, either the non-existence of such assets, or
that they have not reached his hands, or that they have been
duly administered.! Formerly in England, when inventories
were without signature or verification, they were not treated
as primd fade evidence of assets, though they might, in con-
nection with other circumstances, have afforded some proof of
the value of the estate.^ It was, however, held that a pro-
bate stamp, though admissible as slight evidence of assets to
the amount covered thereby, was not sufficient by itself to throw
upon the executors the burden of proving the non-receipt of
such assets.^ It was otherwise when there was evidence of long
assent to the payment of the duty, or of other suspicious cir-
cumstances.*
III. DOCUMENTAEY ADMISSIONS.
§ 1122. A written admission by a party, it need scarcely be said.
Written ^^ published by him, is strong evidence against him or
""^t^f dT^ those claiming under him. Scriptura contra scriben-
pecuiiar tem prohat.^ To this rule, the Roman law presents
the following qualification. When in a written stipu-
lation, cautio, the causa is expressed (^cautio disereta'), the bur-
den is on the promisor, should he defend on the ground that the
cautio was indehite or sine causa, to make out his case. When,
however, the causa is not expressed in the writing (^cautio indis-
1 Giles V. Dyson, 1 Stark. R. 82, » Steam v. Mills, 4 B. & Ad. 657.
explained in Steam v. Mills, 4 B. & « Mann v. Lang, 3 A. & E. 699 ;
Ad. 660, 662 ; Parsons v. Hancock, Steam v. Mills, 4 B. & Ad. 663, 664.
M. & M. 330, per Parke, J. ; Hickey These cases overrule Foster v. Blake-
t). Hayter, 1 Esp. 313 ; 6 T. R. 384, lock, 5 B. & C. 328.
■S. C. ; Young V. Cawdrey, 8 Taunt. * Mann v. Lang, 8 A. & E. 702,
734. See Hutton v. Rossiter, 7 De per Ld. Denman ; Curtis t'. Hunt, 1
Gex, M. & G. 9. C. & P. 180, per Ld. Tenterden ;
See this question discussed, in its Rowan v. Jebb, 10 Irish Law R. 217;
common law relations, in Williams Lazenby v. Rawson, 4 De Gex, M. &
on Ex. (7th ed.) 1968. See, also, G. 556, 563, 564, per Ld. Cranworth;
Smith's Probate Law, 119; Richards Taylor's Evidence, § 786.
B. Sweetland, 6 Gush. 824. ' See Cook v. Barr, 44 N. Y. 156.
358
CHAP. XIII.J ADMISSIONS IN WRITING. [§ 1123.
creta), the plaintiff has the burden on him of proving the con-
sideration. We find this expressly stated in an extract from
Paulus,^ who declares that a creditor who takes a mere in-
formal memorandum of indebtedness must prove the consid-
eration : it being his duty, if he would relieve himself from
this burden, to have the consideration specified in the instru-
ment.
§ 1123. If A. has among his papers a written acknowledg-
ment of indebtedness to B., v^hich acknowledgment Written
has never been delivered to B., can such acknowledg- may'have'
ment be used against A., or A.'s representatives ? ^^6°"*'
Certainly A.'s books, containing his accounts, can be ti>ou|h
so used, for such books are prepared for the purpose of ered.
determining business relations with other parties ; ^ but can a
memorandum of indebtedness, which has never been delivered
to the alleged creditor, be evidence against the alleged debtor ?
On this point there has been much discussion among foreign ju-
rists. The French Code makes such a paper evidence.^ On the
other hand, it is argued with much strength in Germany, that
a unilateral paper of this kind can have no contractual force ;
that the party holding it is at liberty at any time to destroy or
qualify it ; and that its non-delivery is to be regarded as a pre-
sumption of its non-validity.* Yet it must be remembered that
such papers may be taken, especially after a party's death, as
admissions by him of specific facts. And a letter, admitting a
fact, is evidence, irrespective of the question of delivery.^ So
papers found on a party, if he be shown to be in any way impli-
cated in them, can be used in evidence against him to charge
him with complicity in an illegal act.® But by our own law, as
we shall hereafter more fully see, there must be something more
than a mere note, found among a party's papers, to charge him
with indebtedness.'^ An account, however, need not be deliv-
ered in order to be efficacious as an admission, provided it ap-
' L. 25, § 4, D. xxii. 3. See, also, ' See Medway v. U. S. 6 Ct. of CI.
L. 13, c. iv. 30. 421.
" See supra, § 678. ' See R. v. Cooper, L. R. 1 Q. B.
" Code Civil, art. 1332. D. 19, cited infra, § 1154.
* See Weiske's Rechtslexieon, 660. ' See fully infra, § 1154.
359
§ 1125.]
THE LAW OF EVIDENCE.
[book III.
pear that it was Intended by the party making it to be an accu-
rate statement.!
§ 1124. Nor does the fact that the writing is void as an obli-
Invaiidin- gation make it any the less an admission of a debt.^
mavT"' Thus a note, void from being executed on a Sunday,
■^"^'^ may be put in evidence as admitting indebtedness.^ So
admission, where a power of attorney, executed by an agent, is
void for want of a seal, it may be used as an admission.* By
the same reasoning, an unsigned answer by a party before a
register in bankruptcy, taken down by his attorney, may be
used in evidence to contradict his testimony in a collateral pro-
ceeding.^ An unstamped instrument, also, void as an obligation,
may be received evidentially as an admission.^ It has been also
held, to take an illustration of another class, that a document, ex-
ecuted by an agent, but invalid for want of authority in the agent
to execute, may be used against the agent as an admission.'
§ 1125. It is scarcely necessary to say that a negotiable instru-
Notes and Hient is a primd facie admission to the amount ex-
pressed on the paper.^ The same is true of certificates
of indebtedness.^ And orders for payment of money,
in the hands of the drawee, are primd facie evidence
that the drawer has received the amount.^"
otlier ac-
knowledg-
ments are
admissible
as admis-
eions of in-
debtedness
1 Bruce v. Garden, 17 W. R. 990.
" See Hutchins v. Scott, 2 M. &
W. 809 ; Falmouth v. Roberts, 9 M.
&W. 471; Agricult. College v. Fitz-
gerald, 16 Q. B. 432; Rumsey v. Sar-
gent, 2i N. H. 397; Fort v. Gooding,
9 Barb. 371; Hickey B.Hinsdale, 12
Mich. 99. See Thomas n. Arthur, 7
Bush, 245. So an infant's admis-
sions can be used against him when
of age. O'Neill v. Read, 7 Ir. L. R.
434.
» Lea V. Hopkins, 7 Penn. St. 492 ;
Ayres v. Bane, 39 Iowa, 518; Riley
t). Butler, 36 Ind. 51.
* Morrell v. Cawley, 17 Abb. (Pr.)
76. See Beach v. Sutton, 5 Vt. 209;
Ross V. Gould, 5 Greenl. 204; Wo-
mack V. Womack, 8 Tex. 397.
As to non-producible writings being
proved by parol, see supra, § 130.
360
' Knowlton v. Moseley, 105 Mass.
136.
" 3 Pars, on Cont. 295 ; Matheson
V. Ross, 2 H. of L. 286; Atkins ».
Plympton, 44 Vt. 21; Moore v. Moore,
47 N. Y. 468; Reis v. Hellman, 25
Ohio St. 180; S. C. 1 Cincin. 30.
See supra, §§ 697-8.
' HuflFman v. Cartwright, 44 Tex.
296.
' 1 Pars, on Notes, 176; Redfield
& Big. Cases, 186; Grant v. Vaughan,
3 Burr. 1516 ; Bowers l: Hurd, 10
Mass. 427 ; Fisher i'. Fisher, 98 Mass.
303; Mowry v. Bishop, 5 Paige, 98;
Bunting v. Allen, 18 N. J. L. 299.
» Ala. R. R. V. Sanford, 36 Ala. 703.
10 Child V. Moore, 6 N. H. 33 ; Raw-
son V. Adams, 17 Johns. R. 130;
Curie V. Beers, 8 J. J. Marsh. 170.
Infra, §§ 1362-3.
CHAP. XIII.] ADMISSIONS IN WRITING. [§ 1127.
§ 1126. Self-disserving indorsements on instruments are, on
the principles above stated, primd facie evidence against indorse-
the party making or permitting such indorsements, pa",Jfent
though, like receipts, they are open to parol explana- "" P"]'*'
tion.i If self-serving, they are inadmissible ; ^ though, misrions.
as is elsewhere shown, it has been much discussed whether an in-
dorsement of part payments, which is only superficially self-dis-
serving, may be produced in evidence, by the party making it or
his representatives, when the effect is to take the debt out of the
statute, and therefore greatly to serve him.^ When self-disserv-
ing, and when on the instrument sued on, they need not be proved
by the party sued.* But to be thus received, they must be in
some way imputable to the party claiming under the instrument.^
§ 1127. A letter, when it forms part of a contract, or is part
of the material from which a contract may be con- Letters re-
structed, may not only be received against the writer admU-*^'
as an admission, but may bind him by way of estoppel. ^"'"^■
If contractual, to fall back on the distinction already put,^ letters
may estop ; if non-contractual, they afford only primd facie proof. ^
Ordinarily, however, it is evidentially, rather than dispositively,
that letters are used in evidence against the writer ; they are em-
ployed, in other words, not to bind him to a disposition of prop-
erty, but to show his admission of a fact. In such case, being
only unilateral, they are but primd fade proof, open to correc-
tion and explanation by the writer himself.^ A letter to a third
'Sen supra, §§ 228 et seq., 619, Ins. Co. u. De Wolf, 8 Pick. 56 ; Beers
924; Harper «. West, 1 Cranch C. C. v. Jackman, 108 Mass. 192; Union
192; Clarke v. Ray, 1 Har. & J. 318; Canal o. Loyd, 4 Watts & S. 394 ;
Gilpatri(fk v. Foster, 12 111. 355 ; Ca- Snyder v. Reno, 38 Iowa, 329. See
rey v. Phil. Co. 33 Cal. 694. Knight v. Cooley, 34 Iowa, 218.
» Sorrell v. Craig, 15 Ala. 789. » Supra, §§ 923, 1085; Marshall v.
1 Supra, § 228, and see §§ 229-230 ; R. R. 16 How. (U. S.) 314 ; Mulhall
infra, § 1135. v. Keenan, 18 Wall. 342; Goddard v.
* Lloyd V. MuClure, 2 Greene Putnam, 22 Me. 363 ; Jacobs v. Sho-
(lowa), 139. See supra, §§ 619, 924. rey, 48 N. H. 100 ; Short Mountain
' Jacobs V. Putnam, 4 Pick. 108; Co. v. Hardy, 114 Mass. 197 ; New-
Turrell );. Morgan, 7 Minn. 368. comb v. Cramer, 9 Barb. 402; Bank
' Sec supra, §§ 1078-85. v. Culver, 2 Hill (N. Y.), 531 ; Stacy
' Dodge V. Van Lear, 5 Cranch C. v. Graham, 3 Duer, 444 ; WoUen-
C. 278; Pettibone v. Derringer, 4 weber v. Ketterlinus, 17 Penn. St.
Wash. C. C. 215 ; Connecticut v. Bra- 389 ; Douglass u. Mitchell, 35 Penn.
dish, 14 Mass. 296; New EnMand St. 440; Downer d. Morrison, 2 Grat.
361
§ 1128.] THE LAW OF EVIDENCE. [BOOK in.
person is as admissible for this purpose as is a letter to the other
party in the suit ; ^ but in such case the admission, to be opera-
tive, must be distinct.^ It is not necessary to the admissibility
of a letter that it should be signed ; if traceable to the writer,
and if involving a self-disserving admission of any kind, this is
enough.^ Nor is it an objection that the letters are insulated ;
a letter containing a particular admission may come in by itself;*
nor is it necessary, in such case, that the vrhole pertinent corre-
spondence should be put in.^ Nor is it fatal to the admissibility
of a written admission that it was in answer to a letter meant as
a trap.^
Letters are admissible as admissions, though made after the
commencement of litigation.'^
c Letters of third parties are ordinarily inadmissible, being hear-
f say.^ Hence a letter addressed to a party cannot be admitted as
proof against him, unless it be proved that he received it and
acted on it.^ Whether a letter written, but not sent, can be put
in evidence against a party, has been already discussed.^"
§ 1128. Telegrams, under the same restrictions as those which
have been noticed as appertaining to letters, may be
may be an treated as constituting admissions on the part of the
person by whom they are sent." If tending to make
250; Coats M.Gregory, 10 Ind. 345 ; A letter containing an admission by
Shaw !). Davis, 7 Mich. 318; Harri- a party is evidence against him, al-
son D. Henderson, 12 Ga. 19; Bu- though the letter was in reply to an-
chanan i). Collins, 42 Ala. 419; Prus- other which the- party is not called
sel V. Knowles, 5 Miss. 90 ; Swann v. upon to produce. Wiggin v. R. R.
West, 41 Miss. 104; South. Ex. Co. 120 Mass. 201. See supra, § 1103.
V. Thornton, 41 Miss. 216; Porter v. ^ Supra, §§ 618 etseq., 1103.
Ferguson, 4 Fla. 102. e U. S. v. Champagne, 1 Ben. 241.
As to how far letters can be re- ' Holler v. Weiner, 15 Penn. St.
ceived without whole correspondence, 242; Prussel v. Knowles, 6 Miss,
see supra, § 1103. 90.
1 Longfellow v. Williams, Pea. Add. ' Williams v. Manning, 41 How.
Ca. 225; Rose v. Cunynghame, 11 (IST. Y.) Pr. 454; Wolstenholme «.
Ves. 550; Gibson v. Holland, L. R. Wolstenholme, 3 Lans. 457; Rosen-
1 C. P. 1 ; Wilkins v. Burton, 5 Vt. 76, stock v. Tormey, 32 Md. 169; Under-
Robertson v. Ephraim, 18 Tex. 118. wood v. Linton, 44 Ind. 72 ; Living-
" Betts V. Loan Co. 21 Wise. 80. ston v. R. R. 35 Iowa, 555.
» Bartlett u. Mayo, 33 Me. 518. " Smiths v. Shoemaker, 17 Wall.
* North Berwick Co. v. Ins. Co. 52 630. See fully intra, § 1154.
Me. 336; Newton v. Price, 41 Ga. 186, '<> Supra, § 1123.
and othar cases cited supra, § 1103. i' See supra, § 617.
362
CHAP. Xin.] ADMISSIONS: LETTERS AND TELEGRAMS. [§ 1128.
up a contract, they bind him contractually. If merely eviden-
tial, they may be treated as non-contractual admissions, which, so
far as concerns the party from whom they emanate, are subject
to the usual incidents of such admissions.^ It is scarcely neces-
sary to say, that, to charge a party with a telegram, the original
draft in the handwriting of the party or his agent must be pro-
duced.^ A sender, however, may be regarded as the employer
of the telegraph company in such a sense as to make the message
sent and delivered by the company primary evidence.^ To prove
a dispatch to have been received at a telegraph oflSce, it must in
some way be identified with the ofl&ce.* The mere fact, however,
of a telegram being dispatched to a party at a given place, and
of an answer purporting to have been sent by him as at the
siderably. The court held that the
same rule applied to contracts by tel-
egraph as to those by mail, and that a
contract is completed when the accept-
ance of a proposition is deposited for
transmission in the telegraph office,
whether the message is received by
the person sending it or not. But it
is also held that an immediate answer
should have been returned; and that
an acceptance of the proposition, tel-
egraphed after a delay of twenty-four
hours from the time of its receipt, was
not an acceptance wilhin a reasonable
time, and did not operate to complete
the contract. See, to same general
efT'ect, Beach v. Raritan & Del. Bay
R. R. Co. 37 N. Y. 457 ; Coupland v.
Arrowsmith, 18 Law Times (N. S.),
75; Henkel v. Pape, L. R. 6 Exch.
7; Verdin w. Robertson, 10 Ct. Sess.
Cas. (3d series) 35. Alb. L. J. Jan.
20, 1877.
2 Durkee v. R. R. 29 Vt. 127; Ben-
ford V. Zanner, 40 Penn. St. 9; Mat-
teson V. Noyes, 25 111. 591 ; Williams
I). Brickell, 37 Miss. G82. Supra, §§
76, 617.
8 Durkee v. R. R. 29 Vt. 127. Su-
pra, §§ 76, 617.
* Richie v. Bass, 15 La. An. 668.
1 Com. V. Jeffries, 7 Allen, 548 ;
Beach v. R. R. 37 N. Y. 457; Taylor
V. The Robert Campbell, 20 Mo. 254 ;
Wells V. R. R. 30 Wise. 605.
See, to effect of non -contractual
admissions, supra, §§ 1075-8.
In Minnesota Linseed Oil Co. v.
Collier White Lead Co., decided in
1876, by the United States circuit
court for the District of Minnesota,
the plaintiff, whose place of business
was at Minneapolis, on the 31st of
July, which was Saturday, deposited
in the telegraph office at that place
a telegram directed to defendant at
St. Louis, offering to sell a quantity
of linseed oil at fifty-eight cents per
gallon. The dispatch was sent the
same day, but was not delivered to
defendant until between eight and
nine o'clock Monday morning follow-
ing. On Tuesday morning, a few min-
utes before ten o'clock, defendant de-
posited a telegram accepting plain-
tiff's offer, in the telegraph office at
St. Louis. A telegram was sent by
plaintiff to defendant on the same day
revoking the offer. The price of the
kind of oil which was the subject of
negotiation was subject to sudden and
great fluctuations, and had in fact,
after the offer was made, risen con-
363
§ 1131.J THE LAW OF EVIDENCE. [BOOK HI.
same place, is no proof that he was at such place at the particu-
lar time. The operator at the place where the party was ad-
dressed must be called as a witness to prove the party's presence,
or his own original, as an admission in his own writing, must be
produced.! A telegram, it is hardly necessary to add, is not a
privileged communication ; and the operator may be compelled
to disclose its contents.^
§ 1129. It is not necessary, as has been noticed, in order to
Memoian- charge a party with a written admission, that it should
seH^is-" have been signed by him. Any memorandum, the
maybe' authorship of which can be traced to him, may be put
received. Jn evidence against him. Loose notes, or other casual
writings, may be thus employed.^ The effect of entries of receipt
of interest on a note is hereafter discussed.*
§ 1130. As is elsewhere abundantly shown, a written receipt
Receipts is primd facie evidence of payment, liable to be ex-
mfsslons, plained by parol.^ A receipt, however, as we have
expian™'" also Seen, may be, when advanced as a basis for the
t'on- action of third parties, an estoppel as to such third
parties.® In other words, a receipt, when unilateral, is open to
explanation by the party making it, but when bilateral, con-
cludes.''
§ 1131. From what has been said, it follows that bank books
Corpora- are admissible as showing a primd facie case against the
club books bank by whom the entries are made ; ^ and against a
used as^ad- P^^'^'-Y dealing with the bank, so far as he has made the
missions, person making the entries his agent.® The books are
» Howley v. Whipple, 48 N. H. « Supra, §§ 1065-7.
487. ' See supra, § 1078.
2 Supra, § 595. » See Whart. on Agency, § 671 eJ
' Bartlett v. Mayo, 33 Me. 518; seq., and cases there cited ; Olney v.
Hosford V. Foote, 3 Vt. 391 ; Stan- Chadsey, 7 R. I. 224 ; ISIanhattan Bk.
nard v. Smith, 40 Vt. 513 ; Wads- v. Lydig, 4 Johns. R. 377 ; State Bk.
worth V. Kuggles, 6 Pick. 63; Leeds «. Johnson, 1 Mill (S. C), 404; For-
t». Dunn, 10 N. Y. 469; Cook b. An- niquet i: R. R. 6 How. (Miss.) 116.
derson, 20 Ind. 15 ; Snyder v. Reno, ' Williamson v. Williamson, L. R.
38 Iowa, 329 ; Gaines v. Gaines, 89 7 Eq. 542 ; Union Bk. v. Knapp, 3
Ga. 68. See Scammon v. Scammon, Pick. 96; Brown u. Bank, 119 Mass.
28N. H. 419. 69; Allen v. Coit, 6 Hill (N. Y.),
* Infra, § 1135. 318. See supra, § 662.
■• See supra, § 1064.
364
CHAP. XIII.] WRITTEN ADMISSIONS. [§ 1133.
evidence, also, between the bank and its stockholders.^ Entries
made by strangers, however, without the knowledge of the lit-
igants, cannot be received as against either of the litigants.^
Ordinarily the bank books are not evidence, in suits to which
the bank is not a party, without proving such books by the clerk
who made the entry, if within process, or proving his handwrit-
ing, if he is outside of process.^ The same reasoning applies to
the books of other corporations.'' With regard to club and society
books, it has been correctly held that entries in such books, when
kept by the proper officer, and accessible to all the members, are
admissible against such members.^
§ 1182. Partnership books, on the same principle, are admis-
sible in suits by one partner against the other.^ As a partner- ■
condition of such admissibility, however, it must ap- soadmU-'
pear that the partner sued had access to the books, or ^''^'^•
in some way authorized the entries charging him to be made,
and that the books were fairly kept.'' Such books are also evi-
dence against the partnership, when sued by a stranger ; ^ but
not evidence against a stranger when sued by the partnership,^
unless such books fall under the category of books of original
entry.^" After dissolution, entries cease to charge the partnership
as such.ii
§ 1133. Wherever it is the duty of one party to state and for-
ward an account for the information of another, the „ ,
_ So of
entries of the accountant may be used as primd facie accounts
. stated.
evidence against him.^^ Such accounts, however, until
^ Merchants' Bk. a. Rawls, 21 Ga. & G. 706 ; Boardman v. Jackson, 2
334. Ball & B. 382; Tucker v. Peaslee, 36
" Barnes u. Simmons, 27 111. 512. N. H. 167; TopUff' v. Jackson, 12
« Philadelphia Bk. v. Officer, 12 S. Gray, 565 ; Caldwell u. Leiber, 7
& R. 49 ; Ridgway v. Bk. 12 S. & R. Paige, 483; White v. Tucker, 9 Iowa,
256; Courtney v. Com. 5 Rand. (Va.) 100 ; Perry v. Banks, 14 Ga. 699.
666. See, however, Crawford v. ' Adams t>. Funk, 53 111. 219 ; Tur-
Bank, 8 Ala. 79 ; and see supra, § 662. nipseed v. Goodwin, 9 Ala. 372. See
* See supra, § 662; Board of Educ. Moon v. Story, 8 Dana, 226.
V. Moore, 17 Minn. 412. ' Infra, § 1194.
" Raggett V. Musgrave, 2 C. & P. ' Branninu. Foree, 12B. Mon. 506."
556; Alderson v. Clay, 1 Stark. R. " Supra, § 678.
406 ; Ashpitel v. Sercombe, 5 Ex. R. " Boyd v. Foot, 5 Bosw. (N. Y.)
147 ; Allen v. Coit, 6 Hill N. y. 318. 110. Infra, § 1201.
' Symonds v. Gas Co. 11 Beav. " Morland v. Isaac, 20 Beav. 392 ;
283; Lodge v. Prichard, 3 De Gex, M. Ryan v. Rand, 26 N. H. 12 ; Currier
365
§ 1134.]
THE LAW OF EVIDENCE.
[book ni.
final settlement, are open to correction by the parties.^ But the
fact that an account was stated after the commencement of the
suit does not exclude it.* Even an account, made out, but not
sent in, may be treated as an admission.^
The omission by an insolvent of a claim, in the schedule
of debts returned by him, is at least primd facie evidence, as
against the insolvent, that no such debt is due.* An account
filed by a party, stating a debt to a third party, makes a primd
facie case for such third party .^
An account may be evidence in favor of the party making it
as against a party who has access to the books, and has fuU
opportunity from time to time of testing their accuracy.^ The
effect of silence in the reception of an account is discussed in
another section.'^
§ 1134. As has been already incidentally noticed,' the party
receiving an account cannot ordinarily put the debit
count must side in evidence, without putting in the whole account;®
and where an account is made up of several stages, em-
go m-
jj. R. R. 31 N. H. 209; CSiase v.
Smith, 5 Vt. 556 ; Nichols v. Alsop,
6 Conn. 477 ; Peck ti. Minot, 4 Robt.
(N. Y.) 323 ; Carroll v. Ridgaway, 8
Md. 328 ; King v. Maddux, 7 Har. &
J. 467; Mertens v. Nottebohms, 4
Grat. 163 ; Hallcck v. State, 11 Ohio,
400 ; Goodin v. Armstrong, 19 Ohio,
44 ; Kirby v. Watt, 19 111. S93 ; State
V. Wooderd, 20 Iowa, 541 ; Byrne v.
Schwing, 6 B. Mon. 199; Gradwohl v.
Harris, 29 Cal. 150; Gaines v. Gaines,
39 Ga. 68; Turner v. Lewis, 6 La.
An. 774 ; Murdoch v. Finney, 21 Mo.
138.
1 " The account rendered on the 1 6th
of April, 1864, was, at the most, but
prima facie evidence that there were
no other transactions which should
properly form a part of it. Lockwood
V. Thome, 18 N. Y. R. 285. An ac-
count rendered is not conclusive
against either party to it, but may be
impeached or corrected within a rea-
sonable time after its rendition or its
366
receipt. Should the balance claimed
be actually paid, the account would
still be open to correction in the same
manner. Ibid." Hunt, Com. Cham-
pion V. Joslyn, 44 N. Y. 656.
= Hyde i-. Stone, 7 Wend. 354 ;
Stowe V. Sewall, 3 St. & P. 67.
» Bruce v. Garden, 19 W. R. 990.
Supra, § 1128.
* Hart V. Newcomb, 3 Camp. 13;
though see NichoUs v. Downos, 1 M.
& Rob. 13, where Lord Tenterden
held the insolvent estopped by the ad-
mission ; and see Tilghman v. Fisher,
9 Watts, 441.
' Burrows t>. Stevens, 39 Vt. 378.
Supra, §§ 1181-2.
« Symonds v. Gas Co. 11 Beav. 283;
Boardman v. Jackson, 2 Ball & B.
382; Lodge v. Prichard, 3 De Gex,
M. & G. 906.
' See infra, § 1140.
» Supra, §§620, 1108.
» Supra, §§ 620, 1103 ; Bell v. Davis,
8 Cranch C. C. 4; Morris v. Hurst, 1
CHAP. XIII.] ADMISSIONS : ACCOUNTS. [§ 1135.
bracing distinct settlements, the last settlement primd facie in-
cludes and extinguishes the first.^ When mixed up with inde-
pendent unwritten statements, the written and the unwritten
explanations are to be taken together.^
§ 1135. An interesting question here arises as to the effect
of an indorsement of payment of interest on a bond or indorse-
note. Unquestionably such an indorsement is evidence Sterestad-
asrainst its maker whenever he undertakes to claim the ™issibie
. . . . against
debt of which the indorsement indicates the payment party mak-
. 1 !• T '°S them,
of interest. 1 he mdorsement when made was self-dis- but not to
., T . . • i 1 • • i J. -i bar statute
serving ; it was an admission against his interests ; it of Umita-
is therefore, in accordance with the rule here stated, ad- "'°''
missible to defeat his claim for interest. But if the entries were
made after the statute of limitations was impending, and if their
effect be to revive a debt which would otherwise become extinct,
then, from being self-disserving they would become in the high-
est degree self-serving. A debt of flO,000 would in this way
be recalled into life by an entry of payment of a quarter's in-
terest. Hence it has been properly held that an entry made
after the creditor's remedy is impaired by the lapse of time is
not a declaration against interest, and is consequently inadmissi-
ble to defeat the running of the statute.^ In England this ques-
tion has been partially settled by Lord Tenterden's Act, which
provides that no indorsement or memorandum of interest on any
writing, made by the creditor, shall be such a payment as to
take the case out of the operation of the statute of limitations.
Similar enactments exist in several of the United States. At
common law, however, the question is still, in many jurisdictions,
open to agitation ; and it becomes, in such cases, important to
determine whether an entry of payment on a note or other writ-
ing must be shown, by evidence outside of the paper (when the
object is to suspend the operation of the statute), to have been
made before the right of action was barred by the statute. The
ordinary presumption, as is well known, is that a document, un-
Wash. C. C. 433; Walden v. Sher- ^ Cramer v. Shriner, 18 Md. 140.
burne, 15 Johns. 409; Jones v. Jones, See Matthews v. Coalter, 9 Mo. 696.
4 Hen. & M. 447; Young v. Bank, 5 ' Briggs v. Wilson, 5 De Gex, M.
Ala. 179. See, however, Chesapeake & G. 12; Glynn v. Bank, 2 Ves. Sen.
Bk. V. Swain, 29 Md. 483. 38 ; Sorrell v. Craig, 15 Ala. 789. See
" Dorsey v. KoUock, 1 N. J. L. 35. Turner v. Crisp, 2 Str. 827.
367
§ 1136.J
THE LAW OF EVIDENCE.
[book in.
less the contrary be shown, is executed on the date it bears on
its face ; ^ and this presumption has been directly applied, by
high authorities, to entries of the class here immediately under
discussion.* But this has not been without a vigorous protest,^
it being argued that such a presumption, if accepted, is absolute
against the debtor, for the reason that as he cannot before trial
have access to the writing in the creditor's hands, he will be in the
dark as to the date of the entry, and hence unable to contradict
it. But this reasoning does not hold good in those states in
which a party may obtain, before trial, an inspection of papers
relied on by his opponent.*
IV. ADMISSIONS BY SILENCE OR CONDUCT.
§ 1136. If A., when in conversation with B., makes state-
ments which B. listens to in silence, interposing no ob-
jection, A.'s statements may be put in evidence against
B. whenever B.'s silence is of such a nature as to lead
to the inference of assent.^ " A declaration in the pres-
ence of a party to a cause becomes evidence, as show-
ing that the party, on hearing such a statement, did
not deny its truth. Such an acquiescence, indeed, is worth very
little where the party hearing it has no means of personally
knowing the truth or falsehood of the statement." ® " Declara-
tions or statements made in the presence of a party are received
in evidence, not as evidence in themselves, but to understand
what reply the party to be affected by the statement should make
1 See supra, §§977, 979; inf. § 1313. Jewett v. Banning, 23 Barb. 13; Mc-
2 Smith V. Battens, 1 M. & Rob. Clenkan «. McMillan, 6 Penn. St. 366;
341. See Anderson v. Weston, 6 Bing. Knight v. House, 29 Md. 194; Hagen-
N. C. 802; Briggs v. Wilson, 5 De baugh v. Crabtree, 33 111. 225; Pierce
Gex, M. & G. 20. Supra, § 228. v. Goldsberry, 35 Ind. 317 ; Green v.
» Taylor's Ev. § 629. Harris, 3 h-ed. L. 210; Wells v. Dray-
* Mr. Taylor cites, as sustaining his ton, 1 Mill (S. C), 1 1 1 ; Block t>. Hicks,
views. Lord Ellenborough's dicta in 27 Ga. 522; Drumright v. State, 29
Rose V. Bryant, 2 Camp. 321. Ga. 430 ; Alston v. Grantham, 26
5 Hayslep v. Gymer, 1 Ad. & E. Ga. 374 ; Bradford v. Haggerthy, 11
162; Morgan v. Evans, 8 CI. & F. 205; Ala. 698 ; Benziger v. Miller, 50 Ala.
Gaskill V. Skene, 14 Q. B. 664; Bailey 207 ; People «. MoCrea, 32 Cal. 98.
V. Woods, 17 N. H. 365; Corser v. See 1 Cow. & Hill N. 191.
Statements
by one
party to
the other
received in
silence
may be
proved.
Paul, 41 N. H. 24 ; Wiggins v. Burk-
ham, 10 Wall. 129; Rea i'. Missouri,
17Wall.532;Com.u.Call,2lPiok.5l6; C. & K. 709.
368
» Per Parke, J., Hayslep v. Gymer,
1 A. & E. 168 ; of. Neile v. Jakle, 2
CHAP. XIII.] ADMISSIONS BY SILENCE OR CONDUCT. [§ 1138.
to the same. If he is silent when he ought to have denied, the
presumption of acquiescence arises." ^ And again, extending
the doctrine to accusations of crime : " A statement is made
either to a man, or within his hearing, that he was concerned
in the commission of a crime, to which he makes no reply ; the
natural inference is, that the imputation is well founded or he
would have repelled it." ^
§ 1137. When the statement is put in the form of an interro-
gation, the inference gains additional strength.* Even where
there is no personal appeal, the same doctrine applies, though
with diminished force. Thus, A.'s silence, when declarations are
made in his presence by another person, A. taking no part in the
conversation, may be evidence against A., though of slight value.*
So the silence of a person, whose name is on negotiable paper,
on receiving notice of protest, may go to the jury for what it is
worth.^ Even the dropping by A. of certain claims against B., at
an arbitration at which A. is called upon and undertakes to pre-
sent all his claims against B., may be used in evidence against A.^
§ 1138. But it is otherwise when B.'s silence is of a character
not to justify such an inference.'^ Thus, neither a person when
asleep,^ nor when intoxicated,® nor a deaf person, can be in
this way prejudiced by statements made in his presence ; ■"
though it is otherwise as to a foreigner, if it appear that he unr
derstood the language spoken.^^ Nor even under our present
practice does a defendant's silence, when charges are judicially
made against him, authorize such charges to be proved against
him on future trials.^^ It has also been held that statements
> Hunt, J., Gibney v. Marchay, 34 ^ Greenfield Bk. v. Crafts, 2 Allen,
N. Y. 305. 269.
^ Best on Presumptions, § 241, af- " Moore u. Dunn, 42 N. H. 471.
firmed in State v. Cleaves, 59 Me. See supra, §§ 785-87.
300-1, and reaffirmed in State v. ' Com. v. Harvey, 1 Gray, 487 ;
Keed, 62 Me. 142. Larry v. Sherburne, 2 Allen, 35. See
' Andrews ». Frye, 104 Mass. 234; Mattox v. Bays, 5 Dana (Ky.), 461;
Mitchell V. Napier, 22 Tex. 120. Slattery v. People, 76 111. 217 ; Boyd
* Turner i>. Yates, 16 How. 14 ; v. Bolton, Irish Rep. 8 Eq. 113.
Boston R. R. v. Dana, 1 Gray, 83 ; * Lanergan v. People, 39 N. Y. 39.
Smith V. Hill, 22 Barb. 656; Andres " State v. Perkins, 3 Hawks, 377.
t). Lee, 1 Dev. & B. Eq. 318. See, " Tufts v. Charlestown, 4 Gray, 537.
however, Child v. Grace, 2 C. & P. " Wright v. Maseras, 56 Barb. 521.
193; Moore v. Smith, 14 Serg. & R. " Child v. Grace, 2 C. & P. 193;
388. R. „. Turner, 1 Moody C. C. 347;
VOL. II. 24 369
§ 1139.]
THE LAW OF EVIDENCE.
[book III.
made by a clergyman to his congregation in a sermon cannot be
put in evidence against the congregation, although they listened
in silence to the statements ; ^ nor, generally, is such silence an
assent unless the statements were such as properly to call for a
response ; ^ nor unless the truth or falsehood of the statements
were within the range of the party's knowledge.^
§ 1139. An interesting question arises, under the law enabling
parties to testify, as to the effect on a party of the tes-
timony of witnesses called by him whom he has the
right to contradict. At common law there can be no
doubt that such testimony cannot be used afterwards
against the party by whom it may be adduced.* Even
at present, under the recent statutes, such evidence, it
has been held in Pennsylvania, cannot be employed in
other suits against the party introducing it.^ It is otherwise, so
it has been held in Maine, in respect to the statements of wit-
nesses made at a prior hearing of the same case, which state-
ments the party is at liberty to contradict, he being entitled to
So as to
party hear-
ing in si-
lence the
testimony
of a wit-
ness whom
he has the
right to
disclaim.
R. V. Appleby, 3 Starkie N. P. C. 33.
See, however, Lord Denman's remarks
in Simpson v. Robinson, 12 Q. B. 612;
and see R. v. Coyle, 7 Cox, 74 ; U. S.
«;. Brown, 4 Cranch C. C. 508; Com.
V. Kenney, 12 Mete. (Mass.) 235 ;
Com. V. Walker, 13 Allen, 570; Bob
V. State, 32 Ala. 560 ; Noonan v.
State, 9 Miss. 562 ; Broyles v. State,
47 Ind. 251.
1 Johnson v. Trinity Church, 11
Allen, 123.
^ Corser v. Paul, 41 N. H. 24; Vail
V. Strong, 10 Vt. 457; Hersey v. Bar-
ton, 23 Vt. 685; Brainard v. Buck,
25 Vt. 573; McGregor v. Wait, 10
Gray, 72 ; Moore v. Smith, 14 S. &
R. 388 ; Jewett v. Banning, 21 N. Y.
27; Barry o. Davis, 33 Mich. 515;
Rolfe V. Rolfe, 10 Ga. 143; Abercrom-
bie V. Allen, 29 Ala. 281 ; Wilkins v.
Stidger, 22 Cal. 231; Boyd ii. Belton,
8Ir. Rep. Eq. 113.
' Hayslep v. Gymer, 1 A. & E. 163 ;
Edwards v. Williams, 8 Miss. 846.
370
* Helen v. Andrews, M. & M. 336 ;
R. V. Appleby, 3 Stark. R. 33 ; R. ...
Turner, 1 Moo. C. C. 347 ; Child v.
Grace, 2 C. & P. 193; Com. ti. Ken-
ney, 12 Met. 237.
' See Ayres v. Wattson, 57 Penn.
St. 360.
" It would be perilous, indeed, to
any party to produce and examine a
witness in court, if all that he might
say could afterwards be used in evi-
dence against him as an admission.
He admits, indeed, by producing him,
that he is a credible witness but only
pro hac vice, so far as that case is con-
cerned. He does not admit that every-
thing he says is true either in that or
any other proceeding. A party in the
same suit may give evidence which
contradicts his own witness, or shows
that he was mistaken, though he can-
not directly impeach his veracity.''
McDermott v. Hoffman, 70 Penn. St.
52.
CHAP. XIII.] ADMISSIONS : BY SILENCE OR CONDUCT. [§ 1140.
be sworn as a witness in the case.^ And in England, in a case ^
in which a question was raised relative to the admissibility of
certain depositions, which the defendant had used in a chancery
suit, wherein the same facts were in issue, Crompton, J., said :
" A document knowingly used as true, by a party in a court of
justice, is evidence against him as an admission even for a stran-
ger to the prior proceedings, at all events, when it appears to
have been used for the very purpose of proving the very fact, for
the proving of which it is offered in evidence in the subsequent
suit." But silence during an adversary's testimony cannot, in
any view, be imputed to a party as an admission.^
§ 1140. When accounts are presented, the party to whom they
are handed is not expected to speak ; and his silence
under such circumstances is not ordinarily to be treated reception
1 • • I- T t ^ ji -tT • I 1 • "f accounts
as an admission oi the debt.* Yet, with business men, no admis-
the undue retention of an account without exceptions.
^ "We think the testimony was
competent as tending to show an im-
plied admission on the part of the de-
fendant, that the bargain was as stated
by the witnesses before the referees. Its
force in that direction, and its value,
were for the jury. It was subject to
rebuttal, explanation, and comment,
if an inference prejudicial to the de-
fendant, and not well founded in fact,
were likely to be drawn.
" If the defendant did not hear the
testimony before the referees, or did
not comprehend it, or failed to con-
tradict it then, through forgetfulness
or mistake, he could have said so now
before the jury. If he did hear and
understand it (as might fairly be in-
ferred from the plaintiff's testimony),
and allowed it to pass as true, unchal-
lenged on his part at that time, the
fact was one which the jury might prop-
erly weigh now.
" The cases cited by defendant's
counsel, which hold that a failure to
contradict testimony given, or asser-
tions made in the progress of judicial
proceedings, imports no admission of
the truth of such testimony or asser-
tions, all arose before the passage of
the statutes allowing parties to be wit-
nesses, and are inapplicable here.
" Before the change in the law of
evidence, the remarks of Shaw, C. J.,
in Commonwealth v. Kenney, 12 Mete.
2.37, were manifestly sound and perti-
nent on the question of the admissi-
bility of such testimony as was given
in the present case. But the ground on
which these remarks rested was taken
away by the change in the law." Bar-
rows, J., Blanchard v. Hodgkins, 62
Maine, 120.
^ Richards v. Morgan, 4 B. & S.
641.
« Broyles v. State, 47 Ind. 251.
* Gibney v. Marchay, 34 N. Y. 301 ;
Champion v. Joslyn, 44 N. Y. 653;
Darlington v. Taylor, 3 Grant (Penn.),
195; Mellon v. Campbell, 11 Penn.
St. 415 ; Quarles v. Littlepage, 2 Hen.
& M. 401 ; Robertson v. Wright, 17
Grat. 534; Bright v. Cofiinan, 15 Ind.
371 ; Churchill v. Fulliam, 8 Iowa,
45 ; Glenn v. Salter, 50 Ga. 1 70. See
Stiles V. Brown, 1 Gill (Md.), 350.
371
§ 1140.]
THE LAW OF EVIDENCE.
[book in.
when the practice is to return accounts in a reasonable time, if
objected to, with the objections, may give rise, as against the
party retaining, to a presumption of fact, whose strength depends
upon the circumstances of the concrete case.i In fine, whenever
accounts are exhibited to a party who is interested in them
(e. g. an agent's accounts to his principal, or a partner to a
* Wiggins V. Burkham, 10 Wall.
129 ; Freeland u. Heron, 7 Cranch,
147; Hopkirk u. Page, 2 Brock. 20;
Hayes u. Kelley, 116 Mass. 300; Man-
hattan Co. u. Lydig, 4 Johns. R. 377;
Hutchinson i>. Bank, 48 Barh. 302 ;
Phillips V. Tapper, 2 Penn. St. 323 ;
Tarns u. Bullitt, 35 Penn. St. 308 ;
Tarns V. Lewis, 42 Penn. St. 402;
Darlington v. Taylor, 3 Grant (Penn.),
195; Randel «. Ely, 3 Brewst. 270 ;
Robertson u. Wright, 17 Grat. 534;
Miller v. Bruns, 41 111. 293; Shep-
pard «. Bank, 15 Mo. 143 ; Evans v.
Evans, 2 Coldw. 143; Webb v. Cham-
bers, 3 Ired. L. 374 ; Lever v. Lever,
2 Hill (S. C.) Ch. 158; McCuUoch u.
Judd, 20 Ala. 703 ; Freeman v. How-
ell, 4 La. An. 196. See Boody v.
McKenney, 23 Me. 517.
' ' The principle which lies at the
foundation of evidence of this kind
is, that the silence of the party to
whom the account is sent warrants the
inference of an admission of its cor-
rectness. This inference is more or
less strong according to the circum-
stances of the case. It may be re-
pelled by showing facts which are in-
consistent with it; as that the party
was absent from home, suffering from
illness, or expected shortly to see the
other party, and intended and pre-
ferred to make his objections in per-
son. Other circumstances of a like
character may bo readily imagined.
Lockwood w. Thome, 18 N. Y. 289.
As regards merchants residing in dif-
ferent countries. Judge Story says :
' Several opportunities of writing must
372
have occurred.' We see no objection
to the rule as he lays it down, in re-
spect to parties in the same country.
When the account is admitted in evi-
dence as a stated one, the burden of
showing its incorrectness is thrown
upon the other party. He may
prove fraud, omission, or mistake, and
in these respects he is in nowise
concluded by the admission implied
from his silence after it was rendered.
Perkins v. Hart, 11 Wheaton, 256.
The proposition, that what is reason-
able time in such cases is a question
for the jury, as laid down by the court
below, cannot be sustained. Where
the facts are clear it is always a ques-
tion exclusively for the court. The
point was so ruled by this court in
Toland v. Sprague, 12 Peters, 336.
See, also, Lockwood w. Thorne, 1
Kernan, 175. Where the proofs are
conflicting, the question is a mixed
one of law and of fact. In such cases
the court should instruct the jury as
to the law upon the several hypoth-
eses of fact insisted upon by the par-
ties." Swayne, J., Wiggins v. Burk-
ham, 10 Wall. 181.
A distinction has been taken in Ire-
land between such accounts as are
sent by post, and those delivered by
hand ; and it has been held that the
former, though kept by the party to
whom they were sent without obser-
vation, are not admissible against him
as evidence that he had acquiesced in
their contents. Price v. Ramsay, 2
Jebb & Sy. 388, cited in Taylor's
Evidence, § 736.
CHAP. XIII.] ADMISSIONS : BY SILENCE OR CONDUCT. [§ 1142.
copartner), and are not excepted to in a reasonable time,
this is an implication of assent.^ It has also been held that a
banker's pass-book, when unexcepted to, is evidence of acquies-
cence by the customer of the principles on which the accounts
are made up.^ The raising an objection to a particular item
may be primd facie regarded as an assent to the items to which
no objection is made.^
§ 1141. What has been said as to accounts applies to so of
invoices. An invoice makes a primd facie case against "^'^°'°®'-
a business man who receives and retains it without dissent.*
§ 1142. Admissions by silence, as well as admissions by speech,
may have a contractual force, and may bind the party _
to whom they are imputable as efEectually as if they admissions
TTTT . . .,1 , may estop.
were spoken. When they are so interwoven with acts
as to put the actor in a specific attitude towards other per-
sons, by which they are induced to do or omit to do a particular
thing, then he is estopped from subsequently denying that he
occupied such position, and is compelled to make good any losses
which such contractual parties may have sustained by his course
in this relation. In such cases, however, it must appear that the
party complaining changed his situation in consequence of the
conduct of the other party, and that the conduct of such other
party was ordinarily calculated to have this effect.^ The doc-
1 Sherman v. Sherman, 2 Vern. ' Chisman v. Count, 1 Man. & Gr.
•276; Tickel v. Short, 2 Ves. Sr. 239 ; 307.
Rich V. Eldredge, 42 N. H. 153 ; « Field v. Moulson, 2 Wash. C. C.
Meyer v. Reichardt, 112 Mass. 108 ; 155. Though see Wolf v. Ins. Co. 20
Oram v. Bishop, 7 Halst. (N. J.) 153 ; La. An. 383 ; and see Dows v. Bank,
Darlington v. Taylor, 3 Grant (Penn.), 91 U. S. (1 Otto) 618.
195 ; Phillips v. Tapper, 2 Penn. St. ' See supra, § 1085 ; Piokard v.
323; Lever !;. Lever, 2 Hill (S. C.) Ch. Sears, 6 A. & E. 474 ; Atty. Gen.
158;Rayne t). Taylor, 12La. An. 765. v. Stephens, 1 Kay & J. 748; Har-
' Williamson v. Williamson, L. R. risen v. Wright, 13 M. & W. 820 ;
7 Eq. 542. Miles v. Furber, L. R. 8 Q. B. 77;
It should be remembered that an Dairy Ass. 11 Bkrt. Reg. 253; Car-
account sent by a creditor to a debtor roll u. R. R. Ill Mass. 1; Connihan
has been held in equity evidence of a v. Thompson, 111 Mass. 270; Rice v.
contract; Morland v. Isaac, 20 Beav. Barrett, 116 Mass. 312; Hexter v.
392; and even where the account, al- Knox, 39 N. Y. Sup. Ct. 109; Gris-
though made out, was not sent in, a wold v. Haven, 25 N. Y. 595 ; Bodine
contract was implied. Bruce v. Gar- v. Killeen, 53 N. Y. 93 ; Chapman v
den, 17 W. R. 990. Rase, 56 N. Y. 137 ; Dillett v. Kem-
373
§ 1143.]
THE LAW OF EVIDENCE.
[book III.
trine, however, does not apply to silence as to a statement of a
fact not yet in existence, nor to a matter of future iAtention.^
§ 1143. In their first conception, estoppels of this class were
Extension parts of solemn acts, in which the community was
piifof this called upon to witness the attitude of the parties to a
class. contract. " They are all acts which anciently really
were, and in contemplation of law have always continued to be,
acts of notoriety, not less formal and solemn than the execution
of a deed, such as livery of seisin, entry acceptance of an estate,
and the like. Whether a party had or had not concurred in an
act of this sort was deemed a matter which there could be no
difficulty in ascertaining, and then the legal consequences fol-
lowed." ^ Modern business, however, in discarding in most cases
publicity in the negotiation of contracts, has so enlarged the
sphere of estoppels of this class, that they extend to all cases
where one party by his conduct wilfully 'or negligently induces
another party to do or omit to do a particular thing.^
ble, 25 N. J. Eq. 66 ; Beaupland v.
McKeen, 28 Penn. St. 124 ; Phillips v.
Blair, 38 Iowa, 649 ; Summerville v. R.
R. 62 Mo. 391 ; St. Louis v. Shields,
62 Mo. 247 ; Grace v. McKissack, 49
Ala. 163 ; Weedon v. Landreaux, 26
La. An. 729; Snow v. Walker, 42
Tex. 154.
^ Bank of Louisiana v. Bank of
New Orleans, 43 L. J. Ch. 269; Lang-
don V. Doud, 10 Allen, 433; S. C.°6
Allen, 423 ; White v. Ashton, 51 N. Y.
580.
" Parke, B., Lyon v. Reed, 13 M.
& W. 309.
' Graves v. Key, 3 B. & Ad. 318;
Stow V. U. S. 5 Ct. of Claims, 362 ;
Barron v. Cobleigh, 11 N. H. 559; Ste-
vens V. Dennett, 51 N. H. 324; Dewey
V. Field, 4 Meto. 881 ; Zuchtman i>. Rob-
erts, 109 Mass. 53; Stephens v. Baird,
9 Cow. 274 ; Dezell ti. Odell, 3 Hill,
215; Atlantic Co. ti. Leavitt, 54 N.
Y. 35; Barnard v. Campbell, 55 K. Y.
456 ; Comstock v. Smith, 26 Mich.
806; People v. Brown, 67 111. 435 ;
Peters v. Jones, 35 Iowa, 512; Craw-
374
ford V. Ginn, 35 Iowa, 543 ; Drake v.
Wise, 36 Iowa, 476 ; Smith v. Penny,
44 Cal. 161 ; Dresbach v. Minnis, 45
Cal. 223 ; May v. R. R. 48 Ga. 109 ;
Thomas v. PuUis, 56 Mo. 211. See
Bigelow on Estoppel, 437 et seq.
"When one," says Lord Denman,
"by his words or conduct (and this
includes silence) wilfully causes an-
other to believe the existence of a
certain state of things, and induces
him to act on that belief, so as to al-
ter his previous position, the former
is concluded from averring against
the latter a different state of things
as existing at the same time." Per
Lord Denman, Pickard v. Sears, 6 A.
& E. 474; cf. Attorney General ».
Stephens, 1 K. & J. 724. By the
term " wilfully," in the above rule, it
has been laid down (per Parke, B.,
Freeman v. Cooke, 2 Exch. 663) that
" we must understand if not that the
party represents that to be true which
he knows to be untrue, at least that
he means his representation to be
acted upon, and that it is acted upon
CHAP. XIII.] ABMISSIONS : BY SILENCE OK CONDUCT. [§ 1145.
§ 1144. Hence if A., having a claim to property, wilfully or
negligently permits B. to deal with such property as
if he were absolute owner, A. will not be permitted third
to assert his claim to such property against innocent
third parties dealing with B. as absolute owner.^
§ 1145. Again : if A., a creditor of B., directly or indirectly
holds himself out as approving a general assignment by B. to
0., A. is afterwards estopped from disputing such assignment as
against third parties.^ So, as a general rule, we may say that
whenever a representation of a fact (as distinguished from a
representation of an intention),^ has been made or assented to
by one party for the purpose of influencing another's conduct,
and this representation has. been acted on by the latter, to his
loss, this loss may be redressed in equity.*
accordingly; and if, whatever a man's
real intention may be, he so conducts
himself that a reasonable man would
take the representation to be true, and
believe that it was meant that he
should act upon it, and he does act
upon it as true, the party making the
representation would be equally pre-
cluded from contesting its truth and
conduct by negligence or omission;
where there is a duty cast upon a per-
son, by usage of trade or otherwise,
to disclose the truth may often have
the same efTect." Hence negligence,
in doing an act calculated to mislead
a prudent business man, may estop.
Manufact. Bank v. Hazard, 30 N. Y.
226 ; Horn v. Cole, 51 N. H. 287 ;
Preston v. Mann, 15 Conn. 118 ;
Pierce v. Andrews, 6 Cush. 4; Mc-
Kelvey v. Truby, 4 Watts & S. 231 ;
Kirk V. Hartman, 63 Penn. St. 97 ;
Rice V. Bunce, 49 Mo. 231 ; and see
Bigelow on Estoppel (2d ed.), 490-1 ;
4 Southern Law Rev. 647.
1 Kerr on Fraud, 298 ; 1 Story Eq.
Jur. § 384; Railroad Co. v. Dubois, 12
Wall. 47; Neven v. Belknap, 2 Johns.
673; Dewey v. Field, 4 Mete. 381;
Hope V. Lawrence, 50 Barb. 258 ; Car-
penter V. Carpenter, 10 C. E. Green,
194 ; Burke's Est. 1 Pars. Eq. 473 ;
Adlum V. Yard, 1 Rawle, 171; Com.
V. Green, 4 Whart. 604; Carr v. Wal-
lace, 7 Watts, 400; Chapman v. Chap-
man, 59 Penn. St. 214 ; Hinds v. Ing-
ham, 31 111. 400.
A negligent misstatement of law may
estop. Storrs v. Baker, 6 Johns. Ch.
166. Infra, § 1150.
" Guiterman v. Landis, 1 Weekly
Notes, 622.
» Taylor's Evidence § 771, citing
Jorden v. Money, 5 H. of L. Cas.
185.
* Hammersley v. Baron de Biel, 12
CI. & Fin. 45, 62, n., per Ld. Cotten-
ham ; 88, per Ld. Campbell ; Neville
V. Wilkinson, 1 Br. C. C. 543 ; Mon-
tefiori V. Montefiori, 1 W. Bl. 363;
Bentley v. Mackay, 31 Beav. 155, per
Romilly, M. R. ; Laver v. Fielder, 32
L. J. Ch. 365, per Romilly, M. R.; 32
Beav. 1, S. C. ; Gale v. Lindo, 1
Vern. 475; Jorden v. Money, 5 H. of
L. Cas. 185 ; Money v. Jorden, 15
Beav. 372; Hutton v. Rossiter, 7 De
Gex, M. & G. 9 ; Pulsford v. Richards,
17 Beav. 87, 94, per Romilly, M. R. ;
Yeomans v. Williams, 1 Law Rep. Eq.
375
§ 1147.] THE LAW OF EVIDENCE. [BOOK HI.
§ 1146. As we have already observed, falsity, in cases of bi-
lateral admissions, does not affect liability. Hence where par-
ties have agreed to act upon an assumed state of facts, their
rights will be made to depend on such assumption, and not upon
the truth.i Thus it has been held in England, that if an agent
or a workman knowingly renders an untrue account to his princi-
pal or employer, and such account is adopted by the party to
whom it is given, it cannot afterwards be gainsaid by the per-
son who rendered it.^
§ 1147. Another illustration of the rule above given is, that
Party sell- ^ P^^^^y Selling or assigning cannot, unless there be
'°s cannot fraud Or gross mistake, as against his vendee or as-
validity signee, dispute his right to make the sale.^ It has been
against also held that a corporation issuing bonds purporting
pure aser. ^^ j^^ executed in conformity with statute cannot, as
against bond fide holders of such bonds, deny such conformity ;*
that where commissioners were empowered by a local act to
issue mortgage securities, they cannot, as against a bond fide
holder for value, set up an illegality in the original issue of any
security ; ^ and that a company cannot rely on an informality in
the issue of their debentures as an answer to a petition for wind-
ing up.' It is also laid down that where a company registers a
person as a shareholder, and induces him, on the faith of such
184 ; Hodgson v. Hutchenson, 6 Vin. a gee Bigelow on Estoppel, 452-
Abr. 522 ; Cookes v. Masoall, 2 Vern. 467 ; Mangles v. Dixon, 1 M. & Gord.
200 ; Wankford v. Fotherley, Ibid. 446 ; Ramsden v. Dyson, L. R. 1 H.
322 ; Luders ... Anstey, 4 Ves. 601. L. 129 ; Rolt v. White, 8 De Gex, J.
See Wright v. Snowe, 2 De Gex & & S. 360; Beaufort v. Neald, 12 CI.
Sm. 321 ; Maunsell v. White, 4 H. of & p. 249.
L. Cas. 1039 ; Bold v. Hutchinson, 24 4 Knox Co. v. Aspinwall, 21 How.
L. J. Ch. 285, per Romilly, M. R.; 20 539 j Bissel w. Jefifersoaville, 24 How.
Beav. 250, S. C; 5 De Gex, M. & 287 ; Society of Savings t>. New Lon-
G. 558, S. C. on appeal; Traill ». don, 29 Conn. 174. See South Ottawa
Baring, 4 Giff. 485 ; S. C. cited Tay- v. Perkins, Sup. Ct. U. S. October,
lor's Ev. § 185. 1876.
" Supra, § 1087 ; M'Cance 11. R. R. ^ Webb v. Heme Bay Commission-
Co. 8 H. & C. 348. ers, L. R. 5 Q. B. 642; 19 W. K.
^ Molton V. Camroux, 2 Ex. R. 241. See Dooley v. Cheshire, 15
487; aff. in Ex. Ch. 4 Ex. R. 17. Gray, 494 ; Stoddart i'. Shetucket, 34
See, also. Cave v. Mills, 7 H. & N. Conn. 542.
913 ; Skyring v. Greenwood, 4 B. & « Re Exmouth Dock Co. L. K. 17
C. 281 ; Shaw V. Picton, Ibid. 716. Eq. 181 ; 22 W. R. 104.
376
CHAP. XIII.J ADMISSIONS : BY SILENCE OR CONDUCT. [§ 1148.
registration, to pay a call, they cannot be allowed to dispute his
title to the shares.-*
§ 1148. Parties interested in real estate are in like manner
precluded from asserting any latent equity they may Owner of
hold against a hond fide purchaser or incumbrancer, in"thesame
whom they have permitted to purchase or incumber ^*^''
without notice of their equity, when they were themselves privy
to such purchase or incumbrance.^ The following canons on
this point have been laid down by the law lords in the Eng-
lish house of lords : "If a stranger begins to build on land
supposing it to be his own, and the real owner, perceiving his
mistake, abstains from setting him right, and leaves him to
persevere in his error, a court of equity will not afterwards
allow the real owner to assert his title to the land. But if a
stranger builds on land knowing it to be the property of another,
equity will not prevent the real owner from afterwards claim-
ing the land, with the benefit of all the expenditure upon it.
So if a tenant builds on his landlord's land he does not, in the
absence of special circumstances, acquire any right to prevent
the landlord from taking possession of the land and buildings
when the tenancy has determined." ^ By Lord Kingsdown it
was said, in addition, that " If a man under a verbal agreement
with a landlord for a certain interest in land, or what amounts
to the same thing under an expectation created or encouraged by
the landlord that he shall have a certain interest, takes posses-
sion of such land with the consent of the landlord, and upon the
faith of such promise or expectation, with the knowledge of the
landlord and without objection by him, lays out money upon the
land, a court of equity will compel the landlord to give effect to
such promise or expectation." * So where the defendant in an
execution, from whom a waiver of an inquisition has been fraud-
ulently obtained, is present at the sheriff's sale under the inquisi-
" Hart V. Frontino, &c., Gold Min- See, also, Gregory v. Mitchell, 18
ing Co. 5 Law Rep. Ex. Ill ; Re Ba- Ves. 328.
hia & Francisco Ry. Co. v. Tritten, ^ Ramsden v. Dyson, L. R. 1 H. o£
Law Rep. 3 Q. B. 584 ; 9 B. & S. L. 129.
844, S. C. See, also, Webb i'. Heme * Lord Kingsdown, in Ramsden v.
Bay Improving Com. Law Rep. 3 Q. Dyson, L. R. 1 H. of L. 129 ; affirm-
B. 642, S. C. ing Gregory v. Michell, 18 Ves.
" See cases cited snpra, §§ 1143-5. 328.
377
§ 1148.]
THE LAW OF EVIDENCE.
[book m.
tion, but gives no notice of his claim based on the fraudiilency
of the waiver, he is afterwards estopped from disputing the va-
lidity of the sale.i "Whether estoppels of this class can pass a
title, as against the statute of frauds, is a question still open to
doubt.2
^ Jackson v. Morter, 3 Weekly
Notes, 140, relying on Hageman v.
Salisberry, 74 Penn. St. 280 ; and
qualifying Hope v. Everhart, 70 Penn.
St. 234 ; and see fully cases cited
supra, § 1144.
^ In Hayes v. Levingston, Sup. Ct.
of Mich. Oct. 1876, reported in Cen-
tral Law Journal, Oct. 27, 1876, Coo-
ley, J., gives a thoughtful opinion on
the question in the text, arguing with
much aciiteness that when the statute
requires the transfer in writing, such
transfer cannot be worked by estop-
pel. Prom this opinion the following
passages are extracted : —
" It is not to be denied, however,
that there are several cases that apply
the principle of estoppel indiscrimi-
nately to both real and personal es-
tate. The cases in Maine are very
decided. Hatch v. Kimball, 16 Me.
147; Durham v. Alden, 20 Me. 228;
Eangeley v. Spring, 21 Me. 137; Cope-
land V. Copeland, 28 Me. 525; Stevens
17. McNamara, 36 Me. 1 76 ; Bigelow v.
Foss, 59 Me. 162. These cases ap-
pear to have overruled Hamlin v.
Hamlin, 19 Me. 141. The following
are usually referred to as supporting
the Maine cases : McCune v. Mc-
Michael, 29 Geo. 312 ; Beaupland v.
McKeen, 28 Penn. St. 124 ; Shaw v.
Beebe, 35 Vt. 205; Brown v. Wheeler,
17 Conn. 345 ; Brown v. Bowen, 30
N. Y. 519; Basham v. Turbeville, 1
Swan, 437. Of these, the Georgia
case related to a parol partition of
slaves, acquiesced in until after the
death of one of the parties, and was
decided without any discussion of, or
reference to, the distinction between
378
real and personal estate. The case in
Pennsylvania was a suit on a promis-
sory note given on a purchase of
lands, the payment of which was re-
sisted on the ground of failure of
title. The persons in whom the title
was alleged to be had been the plain-
tiff's agents in the sale, and had been
paid a commission for making it ; and
they were held to be estopped from
denying the plaintiff's right. It is to
be observed of this case that the title
was only incidentally in question, and
also that in Pennsylvania the distinc-
tion between legal and equitable rem-
edies is not kept up. In the Vermont
case, the court is contented to dispose
of the question very briefly, by say-
ing that the rule of estoppel, which is
applied to personal property ' upon
reason and principle, to prevent fraud
and promote justice, should be ex-
tended to real property.' It would
have been more satisfactory if the
court had pointed out on what ground,
when the legislature, ' to prevent
frauds and promote justice,' had ap-
plied wholly different rules to the
transfer of personal property and of
real property, the courts would justify
their action in venturing to abolish
the distinction. The Connecticut case
was one in which the question of es-
toppel related to a distribution of
property, which, though not in pur-
suance of the statute, had been sanc-
tioned by a written agreement of the
parties. In the New York case the
complaint was of the flooding o£ the
plaintiff's mill by a dam which let the
water back upon it ; and the question
was whether the defendants were es-
CHAP. XIII.] ADMISSIONS : BY SILENCE OR CONDUCT. [§ 1149.
§ 1149. As a general rule, a party taking a subordinate title
is precluded (unless there be fraud) from maintaining o ^ ,.
that the party from whom he takes had no title at the nate in title
. , I- 1 TT T • 1 cannot dis-
time of the transter.^ Hence a licensee is estopped putethe
from denying the title of licensor to grant the license ; which he
and consequently a licensee of a patent cannot dispute ^^^^^^ """^
the title of the patentee.^ A tenant cannot dispute his ''»?' »*
landlord's title,^ nor can an agent dispute that of his
principal.* A bailee, also, is estopped from denying that his
bailor had at the time the bailment was made authority to make
it,^ though when the bailee is evicted by title paramount he can
set up such title against the bailor.^
topped from asserting title to the land
on which the mill stood, by the fact
that their ancestor, through whom
they claimed, had asserted his right
at the lime the plaintiffs bought the
land and built the mill, though aware
of all the facts. The case was begun
and tried under the Code, which does
away with the distinction between le-
gal and equitable actions. The case
in Swan goes to the extreme of sus-
taining an estoppel against an infant,
and certainly should not be followed
in this state. Kyder v. Flanders, 30
Mich. 336."
"Equity,'' such is the distinction
taken, " may always compel the owner
of the title to release it, when that is
the proper redress for a fraud com-
mitted by him in respect to the title ;
but the remedy is properly adminis-
tered by compelling the fraudulent
owner to convey, instead of treating
the case as one of estoppel in the strict
sense."
It was consequently held that title
to realty cannot be transferred at law
merely by the application of the doc-
trine of estoppel; and that where the
owner of realty denied his own title
thereto, and procured its sale through
another, to one who was ignorant of
his rights, but afterwards asserted his
title in a court of law, he could not be
estopped from doing so; but that if
any relief could be had against him,
it must be in equity.
' Sanderson v. Collman, 4 M. & G.
209; Stott V. Eutherford, 92 TJ. S. (1
Otto) 107.
2 Doe V. Baytop, 3 A. & E. 188;
Croasley v. Dixon, 10 H. L. Cas. 304;
Kinsman v. Parkhurst, 18 How. 289.
« Williams v. Heales, L. K. 9 C. R.
1 71 ; Bigelow on Estoppel, 350; Knight
V. Sraythe, 4 M. & S. 347 ; Balls v.
Westwood, 2 Camp. 12; Page v. Kins-
man, 43 N. H. 328; Bailey v. Kil-
burn, 10 Met. 176; Miller v. Lang, 99
Mass. 13; Hawes v. Shaw, 100 Mass.
187 ; Whalin v. White, 25 N. Y.
462.
* Miles u. Furber, L. R. 8 Q. B.
77; Dixon v. Hammond, 3 B. & Aid.
310. See Whart. on Agency, §§ 242,
573, 761.
« Gosling V. Birnie, 7 Bing. 338;
Cheesman v. Exall, 6 Exc. 341 ; Rog-
ers V. Weir, 34 N. Y. 463; Lund v.
Bank, 37 Barb. 129; King v. Rich-
ards, 6 Whart. 418.
« Biddle v. Bond, 6 B. & S. 225.
See Sinclair v. Murphy, 14 Mich. 392;
Dixon V. Hammond, 2 B. & A. 310 ;
Stonard v. Dunkin, 2 Camp. 344;
Hall V. Griffin, 10 Bing. 246; Zulietta
379
§ 1150.] THE LAW OF EVIDENCE. [BOOK lU.
§ 1150. To constitute an estoppel, however (whether the al-
other par- leged estopping act consist in suppression or assertion),
ty's action ^jjg party alleged to be influenced must in some way
fected, and change his position in consequence of the impression
leading thus made upon him.^ In other words, the estopping
musrhe act must be contractual as distinguished from non-con-
cuipabie. tractual.^ " If, in the transaction itself which is in dis-
pute, one has led another into the belief of a certain state of
facts by conduct of culpable negligence calculated to have that
result, and such culpable negligence has been the proximate cause
of leading, and has led, the other to act hy mistake upon such
belief to his prejudice, the second cannot be heard afterwards as
against the first to show that the state of facts referred to did not
exist." ^ Unless, however, there is a change of position produced
in the party to whom the representations are (either tacitly or
expressly) made, no estoppel is worked.* Thus it has been held
that a railroad company is not ordinarily estopped from showing
that certain goods, alleged to have been delivered to them as car-
riers, had never reached their hands, although the plaintiff had
received from them advice notes for such goods ; ^ nor is a party
giving a receipt ordinarily estopped by the receipt.® It must
also be remembered that to the application of this doctrine
f there must generally be some intended deception in the con-
duct or declarations of the party to be estopped, or such gross
negligence on his part as to amount to constructive fraud, by
which another has been misled to his injury.^ ' In all this class
of cases,' says Story, 'the doctrine proceeds upon the ground
of constructive fraud or of gross negligence, which in effect im-
plies fraud. And, therefore, when the circumstances of the case
repel any such inference, although there may be some degree
of negligence, yet courts of equity will not grant relief. It has
been accordingly laid down by a very learned judge that the
cases on this subject go to this result only, that there must
u. Vinent, 1 De Gex, M. & G. 315; 6 iby.. Supra, § 1070. See, also,
Knights V. Willen, L. R. 5 Q. B. 660. Gosley v. Birnie, 7 Bing. 339; 6 M.
1 See cases cited supra, § 1136. & P. 160; Hawes v. Watson, 2 B. &
2 See supra, §§ 1078, 1081. C. 540; Sheridan v. Quay Co. 4 C. B.
» Carr v. R. R. L. R. 10 C. P. 316. N. S. 618.
Supra, §§ 1144-6. * 8 Supra, § 1066.
* Infra, § 1155. ' See Supra, § 1044.
380
CHAP. XIII.] ADMISSIONS. [§ 1151.
be positive fraud or concealment, or negligence so gross as to
amount to constructive fraud.' ^ To the same purport is the
language of the adjudged cases. Thus it is said by the supreme
court of Pennsylvania, that ' The primary ground of the doc-
trine is that it \70uld be a fraud in a party to assert what his
previous conduct had denied, when on the faith of that denial
others have acted. The element of fraud is essential either in
the intention of the party estopped, or in the effect of the evi-
dence which he attempts to set up.' ^ And it would seem that
to the enforcement of an estoppel of this character with respect
to the title of property, such as will-prevent a party from assert-
ing his legal rights, and the effect of which will be to transfer
the enjoyment of the property to another, the intention to de-
ceive and mislead, or negligence so gross as to be culpable,
should be clearly established. There are undoubtedly cases
where a party may be concluded from asserting his original
rights to property in consequence of his acts or conduct in which
the presence of fraud, actual or constructive, is wanting ; as
where one or two innocent parties must suffer from the negli-
gence of another, he through whose agency the negligence was
occasioned will be held to bear the loss ; and where one has re-
ceived the fruits of a transaction, he is not permitted to deny its
vaUdity whilst retaining its benefits. But such cases are gen-
erally referable to other principles than that of equitable estop-
pel, although the same result is produced ; thus the first case
here mentioned is the affixing of liability upon the party who
from negligence indirectly occasioned the injury, and the second
is the application of the doctrine of ratification or election. Be
this as it may, the general ground of the application of the prin-
ciple of equitable estoppel is as we have stated." ^
§ 1151. We have already* noticed that a party may, in as-
suming a character, express himself as effectually as he A charao-
could by a verbal statement. It follows from this that sumed
' 1 Story's Equity, 391. Delaplaine v. Hitchcock, 6 Hill, 14 ;
" Hill V. Epley, 31 Penn. St. 334 ; Haves v. Marchant, 1 Curtis C. C. 136 ;
Henshaw v. Bissell, 18 Wall. 271 ; Zuchtmann v. Robert, 109 Mass. S3.
Biddle Boggs v. Merced Mining Co. 14 » Field, J., Brant v. Coal Co. Sup.
Cal. 368; Davis t). Davis, 26 Ibid. 23; Ct. U. S. 1876, Alb. L. J. Jan. 20,
Commonwealth v. Moltz, 10 Barr, 531 ; 1877.
Copeland o. Copeland, 28 Me. 539; * Supra, § 1081.
381
§ 1152.] THE LAW OF EVIDENCE. [BOOK in.
cannot when the assumption of a character is the consideration
off ftywroT/ig
berepudi- for a contract, such assumption binds contractually,
the basis^f and estops the party making it.^ Thus where A., by
act^on^'^ the assumption of a false character, induces a railway
company to register him as a proprietor of shares,
and, subsequently, to bring an action against him for calls on
such shares, he will be precluded from disputing the validity
of the transfer to him, or from otherwise denying his charac-
ter as a shareholder.^ So, at least in equity, the same lia-
bility will be imposed on an infant who has actually deceived
a tradesman by fraudulently representing himself to be of full
age, and who has thus obtained credit for goods supplied to him.^
It has also been ruled that, if a party has taken advantage of, or
voluntarily acted under, the bankrupt or insolvent laws, he will
not be permitted, as against parties to the proceedings, to deny
their regularity.* So a party, recognizing another as his agent
as to third parties, cannot afterwards repudiate, as to such par-
ties, the agency ; ^ and the same rule applies to the recognition
by a husband of a wife.''
§ 1152. When, however, there are liabilities to be assumed, a
But silence P*''''y' merely standing by when informed that he is in
rid^f"^ a position which imposes the liabilities, cannot be held
unauthor- to have accepted the liabilities. " No authority can be
ized act
does not found for holding that a person, by simply doing noth-
*^ °^' ing, may be rendered liable. The mere fact of stand-
ing by and being told there is something done which you have
1 Robinson v. Kitchin, 21 Beav. Bank. Aasociat., in re King, 8 De Gex
365; S. C. 8 De Gex, M. & G. 88. & J. 63 ; Nelson v. Stocker, 28 L. J.
See, also, supra, § 1087. Ch. 760; 4 De Gex & J. 458, S. C.
" Sheffield & Manch. Ry. Co. v. * Like v. Howe, 6 Esp. 20; Clarke
Woodcock, 7 M. & W. 574, 582, 583; v. Clarke, Ibid. 61 ; Gouldie v. Gun-
Cheltenham & Gt. West. Union Ry. ston, 4 Camp. 381 ; Watson v. Wace,
Co. V. Daniel, 2 Q. B. 281, 292; In re 5 B. & C. 153, explained in Heane v.
North of Eng. Jt. St.Bk. Co., ex parte Rogers, 9 B. & C. 586, 587 ; Mercer
StrafTon's Ex'ors, 22 L. J. Ch. 194, u. Wise, 3 Esp. 219; Harm ar w. Davis,
202, 203; Taylor w. Hughe^ 2 Jones 7 Taunt. 577; Flower v. Herbert, 2
& Lat. 24. See Swan c. North Brit. Ves. Sen. 326.
Australasian Co. 7 H. & N. 603 ; S. « Summerville v. R. R. 62 Mo.
C. in Ex. Ch. 2 New R. 521 ; 2 H & 391.
C. 175; and 32 L. J. Ex. 273; cited ' Johnston v. Allen, 39 How. (N.
in Taylor's Ev. § 773. Y.) Pr. 506. See supra, § 84 n. 1081.
' Ex parte Unity Jt. St. Mutual
382
CHAP. XIII.] ADMISSIONS : BY SILENCE OR CONDUCT. [§ 1153.
not authorized, cannot fix you with the heavy liabilities which
shares in a joint stock company would create." i In other words,
in such case the admission is non-contractual, not contractual,
and cannot, therefore, estop.^ It is otherwise when the admis-
sion becomes contractual by a change of position on the other
side. Thus, where a company, under circumstances which made
it doubtful whether the agreement was binding on its sharehold-
ers, transferred its business to a new company, one of the terms
of agreement being that the shareholders in the old company
should receive shares in the new company, and share certificates
were sent to all the shareholders in the old company, it was held,
that a shareholder who had acknowledged the receipt of and
retained the certificates was a shareholder in the new company ;
but that ohe who had taken no notice of the communication was
not a shareholder.^ And where shares were allotted to a person,
in pursuance of an authority signed by him to have his name
entered as a shareholder, and he paid calls and received a div-
idend on such shares, such person was held precluded from deny-
ing that he was a shareholder.*
§ 1153. Closely related to the last position is another on which
we shall have further occasion to dilate.® If I recog- Admission
nize another as holding an official character, this, so far character
as I am concerned, is such a recognition of his official "/^"^S™
character as makes it unnecessary for him, in a suit facie^i-
•^ ^ \ mission of
against me in this relation, to prove his official charac- his title.
' Lord Hatherley in Bank of Hin- R. 3 Ch. 758; 16 W. R. 919. This
dustan v, Alison, L. R. 6 C. P. 22. last doctrine has recently been ex-
^ Supra, § 1078-1085. tended to a case where there was no
° Challis's case, 19 W. R. 463 ; L. registration ; for, a company having
R. 6 Ch. 266. received notice of an assignment for
* Sewell's case, L. R. 3 Ch. 131 ; value of one of their debentures, and
15 W. R. 1031. acknowledged the receipt by stamping
" Where a company had registered the duplicate notice, Malins, V. C.
an assignment of debentures, it was held, that this stamping estopped them
held that they could not equitably set from setting up against the transferee
off against the transferee any claim any equities attaching between them-
which they had against the transferror, selves and the transferror. Brunton's
Higgs B. North Assam Tea Co. L. R. case, L. R. 19 Eq. 302; 23 W. R.
4 Ex. 87; 17 W. R. 1125; followed 286." Powell's Evidence, 4th ed.
by Lord Romilly, In re North Assam 249.
Tea Co. L. R. 10 Eq. 465; 18 W. R. ^ See infra, §§ 1315-17; supra, §
126 ; of. In re General Estates Co. L. 739 a.
883
§ 1154.J THE LAW OF EVIDENCE. [BOOK III.
ter.i If I libel another, ascribing to him a particular office, this
is a primd facie case against me, so far as concerns his right to
hold snch. office.^ So I cannot, after executing ■ a bond to a cor-
poration, deny the corporate capacity of the corporation to do
business.^ In each of these cases, however, it is of course open
to me to set up fraud by which I was entrapped into the recog-
nition.* And where I have a right to elect between two debtors,
it will require a strong case of recognition of the one to preclude
me from having recourse to the other.^
§ 1154. We have already touched generally upon the question
Letter in ^°^ ^^^ ^ memorandum of indebtedness from A. to
possession B.^ found among A.'s papers, can be used by B. against
not admis- A.^ We should, in this relation, keep in mind that the
against fact that an unanswered letter is found in the custody
"■ of a party, is not ordinarily ground for the admission
of the letter as evidence against him. Were it otherwise ,an
innocent man might, by the artifices of others, be charged with a
primd facie case of guilt which he might find it difficult to repel.^
" It was a great deal too broad a proposition to say, that every
paper which a man might hold, purporting to charge him with
a debt or liability, was evidence against him if he produced it." *
" What is said to a man before his face he is in some degree
called on to contradict, if he does not acquiesce in it ; but the
not answering a letter is quite different ; and it is too much to
say, that a man, by omitting to answer a letter at all events,
admits the truth of the statements that letter contains." ^ It is
1 Radford v. Mcintosh, 3 T. R. « Supra, § 1123.
632 ; Peacock v. Harris, 10 East, 104; ' R. v. Hevey, 1 Lea. Cr. C. 232;
Lipscome v. Holmes, 2 Camp. 441; R. v. Plumer, R. & R. 264; Doe v.
Pritchard ». Walker, 3 C. & P. 212, Frankis, 11 A. & E. 795; Com. «.
per Vaughan, B.; Dickinson v. Coward, Eastman, 1 Cush. 189 ; Smiths ». Shoe-
1 B. & A. 677 ; Inglis v. Spence, 1 C, maker, 17 Wall. 630 ; Dutton v. Wood-
M. & R. 432 ; Crofton v. Poole, 1 B. & man, 9 Cash. 262 ; Robinson o. R. R.
Ad. 561; Jay u. Carthage, 48 Me. 353; 7 Gray, 92; Fearing v. Kimball, 4
Clough u. Whitcomb, 105 Mass. 482; Allen, 125; Com. i>. Edgerly, 10 Allen,
Seeds u. Kahler, 76 Penn. St. 262. 184; People v. Green, 1 Parker C. R.
2 Barryman v. Wise, 4 T. R. 368. 11 ; Waring v. Tel. Co. 44 How. (N.
» St. Louis V. Shields, 62 Mo. 247. Y.) Pr. 69.
* Supra, § 931. 8 Lord Denman, Doe v. Frankis,
» Curtis V. Williamson, L. R. 10 Q. 11 A. 8e E. 795.
B. 87. See Whart. on Agency, §§ » Lord Tenterden, in Fairlie «. Den-
463-470-2. ton, 8 C. & P. 103.
384
CHAP. XIII.] ADMISSIONS : BY SILENCE OR CONDUCT.
[§ 1154.
otherwise, however, when the party addressed in any way invited
the sending to him of the letter ; ^ or when there is any ground
rightly received in evi-
1 R. V. Cooper, L. R. 1 Q. B. D. 19.
The importance of this case (R.
V. Cooper) invites a fuller statement
than that given in the text : —
" The defendant was indicted in four
counts for obtaining money by false
pretences from four persons named, the
false statements alleged being the same
in all these counts; in a fifth count for
inserting, with intent to defraud the
queen's subjects, an advertisement
in a newspaper containing the false
statements mentioned in the previous
counts, and obtaining money thereby.
It was shown at the trial that the
prisoner had inserted in a newspaper
an advertisement containing state-
ments found to be false, offering per-
manent employment in the preparation
of carle de visite papers, and adding,
' Trial paper and instructions, Is.,'
and giving an address. Six envelopes
were found in the possession of the
prisoner on his being apprehended,
each directed to the address given,
and containing an answer to the adver-
tisement, and twelve postage stamps.
Two hundred and eighty-one other
letters were produced by a post-office
clerk. These letters had been ad-
dressed to the prisoner under the ad-
dress given in the advertisement, and
had been received at the post-office
like the other letters ; but, having been
stopped by the post-office authorities,
none of them had ever been in the
prisoner's possession or custody; nor
was any proof adduced that they were
written by the persons from whom
they purported to come. Each letter
had been opened at the post-office be-
fore production at the trial, and each
contained twelve stamps. The two
hundred and eighty-one letters were
admitted in evidence, and it was held
that under the circumstances the let-
voL. n. 25
ters were
dence.
It was argued for the prisoner that
the letters were not admissible in evi-
dence, inasmuch as they never reached
the hands or were in the possession of
the prisoner, and that there was no
evidence of the sending or identity of
these letters, but that the senders
ought to have been called. It was
further urged that if these letters are
admissible, the prosecution might al-
ways manufacture evidence against a
prisoner after he was in custody. To
this it was replied by Lord Coleridge,
C. J., that it has often been held that
when a letter is put in course of
transmission, the postmaster general
holds it as the agent of the receiver.
Reg. V. Jones, 1 Den. Cr. C. 551 ;
19 L. J. (M. C.) 162; Reg. v. But-
tery, cited 4 B. & Aid. 179. For
the crown it was argued that if the
prisoner had been indicted in re-
spect of any specific one of the letters
in question, no doubt the sender ought
to have been called; but here it was
otherwise. Even apart from the au-
thorities, which show generally that
the postmaster is the agent of the
person to receive a letter, here the
terms of the advertisement expressly
made him so. At any rate it was in-
sisted the letters must be admissible
under the last count. Under that
count he might have been guilty of an
attempt, and for that they are clearly
material. By the majority of the
court it was held that the letters were
admissible. The ground on which this
decision can be best sustained is that
the letters were invited by the de-
fendant, and were in the hands of the
postmaster as his agent. R. v. Cooper
(1876), L. R. I. Q. B. D. 19.
385
§ 1155.] THE LAW OF EVIDENCE. [BOOK HI.
to infer he acted on the letter.^ So if it appear that a letter from
A., making certain claims or charges, has been received by B.,
and partially answered, or otherwise recognized, the letter may
be read for what it is worth against B.^ Where such tacit rec-
ognition is claimed, the whole conversation or correspondence
which constitutes the recognition must be given.^
§ 1165. We must again, in closing the question of estoppels
Admis- ^y silence and by conduct, recur to the fundamental
sions made distinction already laid down,* between contractual and
wlthoutthe , , . . . i i 1 T ■
intention of nou-contractual admissions. A non-contractual admis-
on, or with- sion is, at the bestj but slight evidence, susceptible of
acted^onf being easily rebutted. Peculiarly is this the case with
estop! and regard to admissions made without the intention of'
^^ *" _ being acted on, or which, if acted on, have not operated
ties- to change for the worse the condition of the party so
acting.^ Hence it is that while an admission may be contractual
as to the party to whom it is made, it may be non-contractual as
to third parties.* Thus, where a person brought an action of
trover for a dog, he was held not to be precluded from proving
his title to it, though he had previously authorized a third party,
against whom the defendant had brought a similar action, to de-
liver it to the defendant, in the place of paying £50, which was
the alternative directed by the verdict ; the third person having,
at the time of delivery, demanded back the dog, on behalf of the
plaintiff, as his property .'' Again, it is now held that a sheriff's
return, though it be conclusive evidence in the particular cause
in which it is made, or for the purposes of an attachment, does
not operate as an estoppel in any other action or proceeding,
either as against the sheriff or as against his bailiff.^
» Dewett V. Piggott, 9 C. & P. 75; » Mattocks v. Lyman, 16 Vt. 113.
R. V. Home Tooke, 25 How. St. 120; * Supra, §§ 1078-85.
R. V. Watson, 2 Stark. 140; Smiths v. " Howard v. Hudson, 2 E. & B. 1;
Shoemaker, 17 Wall. 630. Sup. § 175. Foster v. Ins. Co. 3 E. & B. 48; Lack-
» Gaskill V. Skeene, 14 Q. B. 668; ington v. Atherton, 7 M. & Gr. 360;
Fenno v. Weston, 81 Vt. 345 ; Allen Bank of Hindustan v. Alison, L. R. 6
V. Peters, 4 Phil. R. 78; Higgins v. C.P. 227_'; Noursew.Nourse,116Mass.
R. R. 7 Jones N. C. (L.) 470; 101; and see cases cited supra, § U50.
Haynes v. Crutchfield, 7 Ala. 189. « Supra, § 923.
See, also, Lucy ti. Mouflet, 5 H. & ' Sandysu. Hodgson, 10 A. &E. 472.
N. 229 ; Doe v. Frankis, 11 A. & E. ' Stimson v. Farnham, L. R. 7 Q.B.
795 ; Gore v. Hawsey, 3 F. & F. 509. 175 ; Standish v. Ross, 3 Ex. B. 527;
386
CHAP. XIII.]
ADMISSIONS.
[§ 1156.
V. ADMISSIONS BY PREDECESSORS IN TITLE.
§ 1156. The self-disserving admissions of a predecessor in title,
as a rule, are admissible against those who follow and Predeces-
claim under him, when such admissions (1.) were made missions
when such predecessor was in possession ; and (2.) are agSnsT*''*
compatible with the rule that parol evidence is not ad- successor,
missible to vary dispositive writing.^ Declarations of this class
Brydges v. Walford, 6 M. & Sel. 42 ;
1 Stark. R. 389, n. S. C. ; Jackson v.
Hill, 10 A. & E. 477; Remmett v.
Lawrence, 15 Q. B. 1004 ; Levy o.
Hale, 29 L. J. C. P. 127. Holmes v.
Clifton, 10 A. & E. 673, overruling
Beynon v. Garrat, 1 C. & P. 154.
Freeman v. Cooke, 2 Ex. R. 654,
according to Mr. Taylor (Ev. § 782),
carries this doctrine to its extreme
limit, if it does not transgress the
strict bounds of law. That was an
action of trover brought against a
sheriff for seizing the plaintiff's goods
under a, fi.fa. against his brother, to
which the defendant pleaded not guilty,
not possessed, and leave and license.
It appeared at the trial that the plain-
tiff, fearing an execution, had removed
his goods to his brother's house, and
when the sheriff's officer came there,
the plaintiff, supposing that he had a
writ against himself, warned him not
to seize the goods, as they belonged
to his brother. The ofHcer, however,
producing his writ, which was against
the brother, the plaintiff, before the
goods were actually seized, told him
that they were the property of a third
party; but the officer disregarded this
last statement, and seized and sold the
goods as belonging to the brother. On
this state of tacts, the jury found that
the goods were the plaintiff's, but that,
before the seizure, he falsely stated to
the officer that they belonged to his
brother, and that the officer was there-
by induced to seize them as his broth-
er's. The court, on this finding, di-
rected the verdict to be entered for
the plaintiff, on the grounds, first, that
the plaintiff did not intend to induce
the officer to seize the goods as those
of the brother; and next, that no rea-
sonable man would have seized the
goods on the faith of the plaintiff's
representations taken altogether.
1 Supra, § 237; Bp. of Meath v. M.
of Winchester, 3 Bing. N. C. 183 ;
Maddison u. Nuttall, 6 Bing. 226; 3
M. & P. 544, S. C. ; Doe v. Cole, 6
C. & P. 359, per Patteson, J.; De
Whelpdale v. Milburn, 5 Price, 485;
Carr v. Mostyn, 5 Ex. R. 69; Gery o.
Redman, L. R. 1 Q. B. Div. 173 ;
Trimleston v. Kemmis, 9 CI. & P. 749;
Clark, in re, 9 Blatoh. 379 ; Samson
V. Blake, 6 Bankr. Reg. 410; Dale v.
Gower, 24 Me. 563; Beedy i'. Macom-
ber, 47 Me. 451; Pike v. Hayes, 14 N.
H. 19; Badger v. Story, 16 N. H.
168; Baker v. Haskell, 47 N. H. 479;
Smith ». Forrest, 49 N. H. 230 ;
Beecher v. Parmele, 9 Vt. 352; Blake
V. Everett, 1 Allen, 248 ; Coyle v.
Cleary, 116 Mass. 208; Pickering v.
Reynolds, 119 Mass. Ill ; Rogers v.
Moore, 10 Conn. 13 ; Spaulding v. Hal-
lenbeck, 35 N. Y. 204; Smith u. Mc-
Namara, 4 Lans. 169; Kent v. Har-
court, 33 Barb. 491 ; Townsend ».
Johnson, 3 Pen. (N. J.) 706 ; Ten Eyck
V. Eunk, 26 N. J. L. 513; Edwards ».
Derrickson, 28 ST. J. L. 39; Union
Canal v. Loyd, 4 Watts & S. 393;
Sergeant ti. IngersoU, 15 Penn. St.
343; Horn v. Brooks, 61 Penn. St.
407 ; Weems v. Disney, 4 Har. & M.
387
§ 1156.] THE LAW OF EVIDENCE. [BOOK HI.
are to be received, not only as proof of the property which the
declarant enjoyed in the premises, but as evidence of any fact
which is not foreign to the statement against interest, and which
forms substantially a part of it.i 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 ; ^ and declarations
of a former owner as to boundaries are in like manner admissi-
ble.^ So, declarations by a tenant have been admitted to show
the extent of the tenement occupied by him, * the amount of
rent paid, and the fact of its payment ; ^ and the name of the
landlord.^ It may also be generally declared that whatever ac-
compauies a title, in the way of recital or description, qualifiesj
at least primd facie, the title. Thus, the rule before us admits,
as against succeeding holders of a title, maps, recitals in deeds,
monuments, and boundaries of which an owner, during his own-
ership, was author.'' Such evidence may be received, not only
against privies, but against strangers.* As a condition of admis-
sibility, it has been said not to be necessary that the declarant
should be dead,^ though the better view is to restrict the admissi-
15G ; Gaither v. Martin, 3 Md. 146; 763; K. v. Exeter, L. R. 5 Q. B. 341 ;
Keeneru.Kauffman, 16Md. 296; Com- 10 B. & S.433.
stock u. Smith, 26 Mich. 306; Ken- ' Peaceable u. Watson, 4 Taunt. 16;
wick V. Kenwick, 9 Rich. (S. C.) 50; HoUoway v. Rakes, cited by BuUer,
Horn V. Ross, 20 Ga. 210 ; Meek v. J., in Davies v. Pierce, 2 T. R. 55 ;
Holton, 22 Ga. 491 ; Cloud v. Du- Doe v. Green, 1 Gow R. 227.
pree, 28 Ga. 170; Harrell v. Culpep- ' Supra, §§ 237, 1041-2; Bridgman
per, 47 Ga. 635; Brewer v. Brewer, v. Jennings, 1 Ld. Ray, 734; Daggett
19 Ala. 481; Fraliok v. Presley, 29 v. Shaw, 5 Mete. 223; Davis v. Sher-
Ala. 457; Graham v. Busby, 34 Miss, man, 7 Gray, 291; Penrose v. Griffith,
272; Mulliken v. Greer, 5 Mo. 489; 4 Binn. 231; Weidman v. Kohr, 4
Gamble D. Johnston, 9 Mo. 605 ; Potter Serg. & R. 174; Gratz w. Beates, 45
V. McDowell, 31 Mo. 62; Wright v. Penn. St. 495; Allen u. Allen, 9 Wright
Carillo, 22 Cal. 595; MoFadden v. (Penn.), 473 ; Cumberl. Valley R. B.
Wallace, 38 Cal. 51. v. McLanahan, 69 Penn. St. 23; Grubb
I R. V. Birmingham, 1 B. & S. 763. v. Grubb, 74 Penn. St. 25; Davis i).
' Doe V. Pratt, 5 B. & A. 223. Jones, 3 Head, 603.
" Supra, § 237 et seq. ; Dawson v. ^ Davies v. Pierce, 2 T. R. 53;
Mills, 32 Penn. St. 302; Cansler v. Peaceable v. Watson, 4 Taunt. 16;
Fite, 5 Jones (N. C.) L. 424. Doe v. Coulthred, 7 A. & E. 235; Doe
* Mountnoy .;. Collier, 1 E. & B. v. Langdeld, 16 M. & W. 497. Supra,
630. , §237..
' R. V. Birmingham, 6 B. & S. » Walker u. Broadstock, 1 Esp. 458,
388
CHAP. XIII.J ADMISSIONS BY PBEDECESSOBS IN TITLE. [§ 1157.
bility of declarations of living predecessors, in suits against stran-
gers, to cases where such declarations are part of the res gestae.^
§ 1157. The principle we have just noticed has its most
stringent application to cases in which a burden descends with
an estate. As against third parties, such burden is open to im-
peachment. But by those taking under the party by whom the
burden is imposed, it cannot, so long as they hold the estate, be
disputed. Whoever, as successor or purchaser, takes the estate
of another, takes such estate charged with all the in- „ ,
° . Burdens
cumbrances to which it has been subjected by the and limita-
predecessor from whom such successor takes. If the withes-
former owner of the estate, therefore, with the qualifi-
cations above noticed, has made an admission in respect to such
estate, such admission is to be received in evidence, as against
the representatives and successors of such former owner, as much
as it would be against such owner himself.^ The same rule holds
per Thomson, B. ; Doe v. Rickarby,
5 Esp. 4, per Ld. Alvanley. In Pa-
pendick v. Bridgewater, 6 E. & B.
166, Walker v. Broadstock was ques-
tioned.
^ Papendick v. Bridgewater, 5 E. &
B. 166; Taylor's Ev. § 617, citing Doe
V. Wainwright, 8 A. & E. 700, 701 ;
Doe V. Langfield, 16 M. & W. 513, 514,
per Parke, B. In Pliiliips v. Cole, 10
A. &E. Ill, Ld. Denman, in pronoun-
cing the judgment of the court, ob-
serves : " It is clear that declarations
of third persons alive, in the absence
of any community of interest, are not
to be received to affect the title or in-
terests of other persons, merely be-
cause they are against the interests of
those who make them." See supra,
§ 237, and cases cited § 1163 6.
2 Supra, § 237 ; 1 Wash. Real Prop.
(4th ed.) 497 ; 2 Ibid. 282-4; 3 Ibid.
427; Walker's case, 3 Co. 23; Bever-
ley's case, 4 Co. 123-4; Code v. Bra-
ham, 3 Exc. 185; Peabody v. Hewett,
82 Me. 33; Smith v. Powers, 15 N. H.
546; Dow I'. Jewell, 18 N. H. 340; Bell
V. Woodward, 46 N. H. 315 ; Hurlburt
V. Wheeler, 40 N. H. 73; Denton v.
Perry, 5 Vt. 382 ; Howe v. Howe, 99
Mass. 88; Pickering v. Reynolds, 119
Mass. Ill ; White v. Loring, 24 Pick.
319 ; Hodges v. Hodges, 2 Gush. 455;
Bosworth V. Sturtevant, 2 Cush. 392 ;
Hill u. Bennett, 23 Conn. 363; Gib-
ney v. Marchay, 34 N. Y. 301 ; Pope
V. O'Hara, 48 N. Y. 446; Pierce v.
McKeehan, 3 Penn. St. 136; Alden
V. Grove, 18 Penn. St. 377 ; Hale v.
Monroe, 28 Md. 98 ; Van Blarcom v.
Kip, 26 N. J. L. 351; McCanless v.
Reynolds, 67 N. C. 268; Howell v.
Howell, 47 Ga. 492; Pearce v. Nix,
34 Ala. 183 ; Arthur v. Gayle, 38 Ala.
259 ; Gavin v. Smith, 24 Mo. 221 ; Car-
penter V. Carpenter, 8 Bush, 283 ;
BoUo V. Navarro, 33 Gal. 459. See,
however, Clarke v. Waite, 12 Mass.
439. Admissions, however, to operate
as above, must be specific. Hugus v.
"Walker, 12 Penn. St. 173.
So acts and declarations of the owner
manifesting an intent to devote the
property to such public use are proper
evidence to prove a dedication, and the
acceptance may be proved by long
389
§ 1157.]
THE LAW OF EVIDENCE.
[book in.
with regard to limitations imposed on an estate. Thus deeds to
strangers, to give a single illustration, from one under whom de-
fendants, in a suit of ejectment, claim, are admissible against the
defendants, to show the grantor's view as to the boundary lines
of the land granted.^ It should, however, be remembered that
the admissions of a grantor cannot be received to contradict the
tenor of a deed,^ unless, as has been heretofore seen, there be
such ground laid of fraud or mistake as would lead a chancellor
to reform the instrument.^ Nor are they evidence if they rest
merely on hearsay.* Hence an answer to a bill in chancery,
narrating what the declarant has heard another person state re-
specting his title, is not admissible to defeat his estate, at least
if he does not add that he believes such statement to be true.^
public use, or by the acts of the proper
public officers recognizing and adopt-
ing the highway. Cook v. Harris, 61 N.
T. 448. " The declarations of a party
in possession are admissible in evidence
against the party making them, or his
privies in blood or estate, not to at-
tack or destroy the title, for that is of
record and of a higher and stronger
nature than to be attacked by parol
evidence. They are competent sim-
ply to explain the character of the
possession in a given case. Thus, the
declaration of the ancestor, that he
held as a tenant of a person named, is
admissible in an action brought by
such tenant against the heir. Pitts
V. Wilder, 1 Comst. 525; Jackson v.
Miller, 6 Cow. 751 ; 6 Wend. 228 ; 4
Taunt. 16, 17." Hunt, J., Gibney i'.
Marchay, 34 N. Y. 303.
I Hale V. Rich, 48 Vt. 217, citing
Davis V. Judge, 44 Vt. 500.
If such evidence is compatible with
the rule that parol proof cannot be re-
ceived to affect writings, " any decla-
ration by the possessor that h6 is ten-
ant in tail, or for life, or for years, or
by sufferance, as it makes strongly
against his own interest, may safely be
received in evidence, on account of its
probable truth." Chambers v, Ber-
390
nasconi, 1 C. & J. 457, per Ld. Lynd-
hurst ; Peaceable v. Watson, 4 Taunt.
17, per Sir J. Mansfield, C. J.; Crease
V. Barrett, 1 C, M. & R. 931; 5 Tyr.
473, S. C, per Parke, B. ; Doe v.
Langfield, 16 M. & W. 497. It mat-
ters not whether the declaration be
made verbally ; Came v. Nicoll, 1 Bing.
N. C. 430; 1 Scott, 466, S. C; Baron
de Bode's case, 8 Q. B. 243, 244; K.
V. Birmingham, 31 L. J. M. C. 63 ; 1
B. & S. 763, S. C. ; R. V. Exeter, 4
Law Rep. Q. B. 341 ; 38 L. J. M. C.
127 ; 10 B. & S. 433, S. C; or in
writing ; Doe ». Jones, 1 Camp. 367;
R. V. Exeter, 4 Law Rep. Q. B. 341 ;
38 L. J. M. C. 127; and 10 B. & S.
433, 5. C. ; or by deed ; Doe v. Coul-
thred, 7 A. & E. 235 ; Garland o. Cope,
11 Ir. Law R. 514 ; or in answer to a
bill in chancery. Trimlestown v. If em-
mis, 9 CI. & F. 779; Taylor's Ev.
§618.
2 Doe V. Webster, 12 A. & E. 442 ;
Pain V. Mclntier, 1 Mass. 69. Supra,
§§ 920, 1019, and cases cited infra, §
1160.
» Supra, § 1019.
' Trimlestown v. Kemmis, 9 CI. &
F. 784, affirming unanimous opinion of
judges.
6 Ibid.
CHAP. XIII.J ADMISSIONS OF PREDECESSOR IN TITLE. [§ 1160.
Nor are they admissible unless self-disserving ; ^ nor can the dec-
larations of a party, made before acquiring an interest in prop-
erty, be used against vendees to whom, after subsequently ac-
quiring such property, he conveys it.^
§ 1158. As a further illustration of the general rule which is
before us, it may be noticed that the admissions of a gxecu-
decedent made as to debts due by him bind his ex- J°"?lf.°
ecutor or administrator .^ How far an executor, bring- -their do-
ing an action on a life policy, where the issue was
suicide, could be affected by his decedent's declarations of an in-
tention to commit suicide, was discussed in an interesting case
before the supreme court of Pennsylvania in 1876. Declarations
indicating such an intention were admitted ; but it was held that
to such admissibility it is essential that the intent should be
specific*
§ 1159. A landlord's admissions in a prior lease, on the prin-
ciples already stated, have been held evidence so far Lgnajo,^,,
as they charge the estate, against a lessee claiming admissions
under a subsequent lea-se ; ^ and generally, what a land- against
lord admits is, if relevant to the issue in a suit against
the tenant, evidence against the tenant.®
§ 1160. The rule is the same whether the declarant has parted
with the whole of his estate, after making the declara- xg^^^^
tions, or has parted with only a portion. Thus a pred- and otter
ecessor's declarations can be received, in a suit against may be so
the successor or grantee, to show that the predecessor
held the land as tenant of the party bringing suit,'^ or for any
other purpose which casts a burden on the successor as privy in
estate to his predecessor.^ But such declarations, as we have
" Supra, § 237 ; infra, § 1169. made by the decedent, Smith «. Maine,
" Eckert v. Cameron, 43 Penn. St. 25 Barb. 33.
120. * Continental Ins. Co. v. Delpeuch,
0 Smith V. Smith, 3 Bing. N. C. 29; 3 Weekly Notes, 277.
S. C. 7 C. & p. 401 ; Jones v. Jones, ^ Crease v. Barrett, 1 C, M. & R.
21 N. H. 219; Albert v. Ziegler, 29 932.
Penn. St. 60; Gordner v. Heffley, 49 " See Crane v. Marshall, 16 Me. 27.
Penn. St. 163. See Cheeseman v. ' Doe v. Pettett, 5 B. & A. 223.
Kyle, 15 Oh. St. 15; Nash v. Gibson, ^ Bridgman v. Jennings, 1 Ld. Ray.
16 Iowa, 305; Burckmyer v. Mairs, 734; Woolway v. Rowe, 1 A. & E.
Riley, S. C. 208; Boone k. Thompson, 114; Davies v. Pierce, 2 T. R. 53;
17 Tex. 605. And so as to provisions Rogers v. Moore, 10 Conn. 13 ; Blake
. - 391
§ 1162.] THE LAW OF EVIDKNCE. [BOOK HI.
seen, cannot be received for the purpose of contradicting the
ayerments of deeds executed by the declarant, unless fraud or
mistake be set up.^ And it should be remembered that such
declarations, if made by mistake, or in ignorance, do not bind
either the party making them, or his successors, unless they
operate by way of estoppel.^
§ 1161. An occupant of land, however, as a tenant or other-
Admis- wise, cannot afEect by his admissions his landlord's title ;
party hold- and hencc, in an action by a party claiming an ease-
dinate ulie iJi^nt in land against the owner, the admissions of an
donotaf- occupant of the land are inadmissible for the plaintiff,^
feet prin- '^ . .
cipai. though in the common law action of ejectment, from
the technical peculiarities of that action, the admissions of the
tenant in possession can be produced against the landlord.* So
admissions of a tenant for life do not bind the remainder man.^
Nor can the declarations of a tenant for years, by admitting an
incumbrance, be received against the owner of the fee.®
§ 1162. The position of a judgment debtor may be such, as
Judgment *° ^^^ goods taken in execution, as to deprive his dec-
declara- larations, when made after judgment, of that self-dis-
tions ad- serving character which is necessary to establish admis-
against sibility SO far as concerns subsequent purchasers of
such goods.^ Yet, so far as the debtor is the party
through whom the title is traced, execution purchasers, claiming
under him, are liable to be prejudiced by his declarations and
acts when self-disserving.^ Declarations of an escaped or non-
V. Everett, 1 Allen, 248; Stearns v. Hawley «. Bennett, 5 Paige, 104; Hea-
Hendersass, 9 Gush. 497; Hyde u. ton w. Findlay, 12 Penn. St. 304. Su-
Middlesex, 2 Gray, 267; Plimpton n. pra, §§ 1078-1085.
Chamberlain, 4 Grav, 320; Weidman ' Scholes v. Chadwiok, 2 M. & Rob.
V. Kohr, 4 Serg. & R. 174; Dawson v. 507; Papendick v. Bridge water, 5 E.
Mills, 32 Penn. St. 302; Williard v. & B. 166. See Tickle v. Brown, 4
Williard, 56 Penn. St. 119; Robinson A. & E. 878; Taylor's Ev. § 714;
«. Robinson, 22 Iowa, 427; Tliomas Hanley i'. Erskine, 19 111. 265.
V. Wheeler, 47 Mo. 363. * Doe v. Litherland, 4 A. & E. 784.
> See supra, §§ 920, 1019; Doe v. « Hill v. Roderick, 4 Watts & S.
Webster, 12 A. & E. 442; Carpenter v. 221 ; Pool v. Morris, 29 Ga. 374.
HoUister, 13Vt.5o2; Wood o.Willard, « Supra, § 237.
36 Vt. 82; Pain v. Mclntier, 1 Mass. ' See Vandyke «.Bastedo, 15 N.J.
69; Pinner v. Pinner, 2 Jones L. 398; L. 224; Renshaw v. The Pawnee, 19
Walker v. Blassingame, 17 Ala. 810. Mo. 582.
" Jackson v. Miller, 6 Cow. 751 ; « Outcalt v. Ludlow, 32 N. J. L.
392
CHAP. XIII.J ADMISSIONS OF PREDECESSOR IN TITLE. [§ 1163 a.
arrested debtor have been held admissible in an action against
the sheriff for escape, or for a false return, though such decla-
rations, to be properly admissible, should be part of the res
gestae}
§ 1163. Where A., the possessor of a chattel, or chose in ac-
tion^ assigns it to B., B. takes it charged with equities Vendee or
which could have been maintained against A., supposing Rafter °
that B. has notice, or ought to take notice of such equi- vendor'7
ties ; and from this it follows that B., under such cir- or assi^-
. ors admis-
cumstances is as much exposed to the admission against sions.
him of A.'s self-disserving declarations as to such equities, as he
would be to the admis^on of any other legal evidence, going to
establish such equi ties. ^ From the very limitations of this
proposition, however, it will be noticed that as against a hond
fide purchaser without notice such admissions cannot be re-
ceived.^
§ 1168 a. Of this principle one of the most familiar instances
is that of the indorsee of an overdue note, or of a note indorser's
as to whose defects he has notice, and who, when suing tionTimd-
on such note, is chargeable with the self -disserving ad- ^aiJl'gt^in.
missions of his indorser or assignor that the note was doraee.
without consideration, or is paid, or is infected with Other vices,
when such admissions are part of the res gestae, or when the dec-
larant is dead.* On the other hand, where the note is received
239; King w. Wilkins, 11 Ind. 347; v. Brett, 18 Ind. 343; Vennura v.
Ross !). Hayne, 3 Greene (Iowa), 211. Thompson, 38 111. 143; Ritchy v.
See Avery v. demons, 18 Conn. 306 ; Martin, Wright (Oh.), 441; Wyckoff
Pomeroy v. Bailey, 43 N. H. 118; u. Carr, 8 Mich. 44; Horton i'. Smith,
Martel u. Somers, 26 Tex. 551 ; Mul- 8 Ala. 73; Brown i>. McGraw, 20
hoUand u. EUitson, 1 Coldw. 307. Miss. 267; Murray v. Oliver, 18 Mo.
* Sloman v. Heme, 2 Esp. 695; 405; Gallagher u. Williamson, 23 Cal.
Rogers V. Jones, 7 B. & G. 89. 331.
' Welstead v. Levy, 1 M. & Rob. ' Tousley v. Barry, 16 N. Y. 497.
138 ; Beanchamp v. Parry, 1 B. & * Peckham v. Potter, 1 C. & P.
Ad. 19 ; Hanison u. Vallance, 1 Bing. 232; Kent v. Lowen, 1 Camp. 177;
45; Hatch v. Dennis, 1 Fairf. 244 ; Beauchamp v. Parry, 1 B. & Ad. 89 ;
Fisher v. True, 38 Me. 634 ; White Hatch v. Dennis, 10 Me. 244 ; Wheel-
V. Chadbourne, 41 Me. 149; Gibble- 'er v. Walker, 12 Vt. 427; Bond v.
house «. Strong, 3 Rawle, 437; Black- Fitzpatrick, 4 Gray, 89; Roe v. Je-
stock V. Long, 19 Penn. St. 340; Lin- rome, 18 Conn. 138; Robbins v. Rich-
coin b. Wright, 23 Penn. St. 76. See ardson, 2 Bosw. 248; Hollister v.
Paige V. Cagwin, 7 Hill, 361 ; Bunbury Reznor, 9 Oh. St. 1 ; Blount v. Riley, 3
393
§ 1164.J
THE LAW OF EVIDENCE.
[book m.
lond fide, without notice, and before it is due, by the indorsee,
he cannot be charged with such admissions.^ Declarations of
an indorser after parting with the note are clearly inadmissi-
ble.2
§ 1163 b. Where the declaration, in a suit against
strangers, relates to facts which the declarant himself
can prove, and he is living at the time, he should be
called to prove them.^
§ 1164. A bankrupt or insolvent assignee, also, is open to be
Bankrupt prejudiced, in a suit against him, by the admissions of
*S'S"^« his assignor made before the act of bankruptcy, or be-
bankrupt' s fore the assignment, as the ca'se may be ; * but it is
admissions. . ti. ii. ■, • -, r.
otherwise as to declarations made after such period."
Thus declarations of an insolvent debtor, made after an assign-
ment, are inadmissible against a particular creditor, to prove
fraud in a preference given by the assignment to such cred-
In suits
against
strangers,
declarant,
if living,
should be
called.
Ind. 471; Abbott v. Muir, 5 Ind. 444;
Williams v. Judy, 8 HI. 282 ; Curtiss
V. Martin, 20 111. 557; Sharp v. Smith,
7 Kich. 3; Cleaveland t;. Davis, 3
Mo. 331. Infra, §1199 a. That if the
declarant is alive, he must be called,
see Hedger v. Horton, 3 C. & P. 179.
The party against whom the declara-
tion is offered must stand on the same
title as the declarant. 2 Parsons on
Notes, 472 ; Phillips v. Cole, 10 A. &
E. 106; Jackson v. Bard, 4 Johns. R.
230. As denying the position in the
text, see Bailey v. Wakeman, 2 Denio,
220; Paige v. Cagwin, 7 Hill, 361.
1 Shaw V. Broom, 4 D. & R. 730 ;
Woolray v. Rowe, 1 A. & E. 116;
Matthews v. Houghton, 10 Me. 420;
Fitch V. Chapman, 10 Conn. 8; Smith
II. Schank, 18 Barb. 344; Kentu. Wal-
ton, 7 Wend. 256 ; Whitaker y. Brown,
8 Wend. 490 ; Weidman v. Kohr, 4 S.
& R. 174; Lister v. Boker, 6 Blackf.
439 ; Sharp v. Smith, 7 Richards. 3 ;
Glanton v. Griggs, 5 Ga. 424 ; Porter
V. Rea, 6 Mo. 48. Infra, § 1199.
^ Camp V. Walker, 5 Watts, 482.
394
» Hedges v. Horton, 3 C. & P. 179 ;
Rand v. Dodge, 17 N. H. 343; Coit
i;. Howd, 1 Gray, 547; Currier v. Gale,
14 Gray, 504; Topping v. Van Pelt,
1 Hoffm. 545; Hanley v. Erskine, 19
111. 265. See Harriman v. Brown, 8
Leigh, 697 ; Lowry v. Moss, 1 Strobh.
63; Lamar v. Minter, 13 Ala. 31. See
Papendick v. Bridgewater, and cases
cited supra, § 1156.
« Coole V. Braham, 3 Exeh. R. 185;
Jarrett v. Leonard, 2 M. & S. 265 ;
Brown v. McGraw, 20 Miss. 267; Gal-
lagher V. Williamson, 23 Cal. 331;
Norton v. Kearney, 10 Wise. 443;
though see Bullis v. Montgomery, S
Lansing, 255.
^ Jarrett v. Leonard, 2 M. & Sel.
265; Taylor v. Kinloch, 2 Stark. R.
394 ; Smallcome v. Bruges, 13 Price,
136 ; Robson u. Kemp, 4 Esp. 234;
Adams «. Davidson, 10 N. Y. 309;
Barber v. Terrell, 64 Ga. 146; Wein-
rich V. Porter, 47 Mo. 293. In Hey-
wood V. Reed, 4 Gray, 574, subsequent
admissions were received. See infra,
§ 1166.
CHAP. XIII.] ADMISSIONS BY PREDECESSOR IN TITLE.
[§ 1165.
itor.^ And such declarations, even when made coincidently with
the assignment, cannot be admitted to defeat its plain provi-
sions.-
§ 1165. It is scarcely necessary to add that, as a general rule,
the declarations of a former party in interest, made inadmissi-
after he has parted with his interest, cannot be re- madl'^after
ceived to affect the title of a hond fide grantee, donee, ^^^^^\
■^ The same limitation applies to the dec- '»''"'•
or successor.'
* Phoenix v. Ins. Co. 5 Johns, K.
412. See Bullis v. Montgomery, 3
Lansing, 255.
^ Vance v. Smith, 2 Heisk. 343.
« Crease v. Barrett, 1 C, M. & R.
418 ; Palmer v. Cassin, 2 Cranch C.
C. 66; Clements v. Moore, 6 Wall.
299; Thompson v. Bowman, 6 Wall.
316; Gillinghan u. Tebbetts, 33 Me.
360; McLellan v. Longfellow, 34 Me.
562; Baxter b. Ellis, 57 Me. 179;
Eaton e. Corson, 59 Me. 510; Worth-
ing V. Worthing, 64 Me. 235 ; Baker
V. Haskell, 47 N. H. 479 ; Haywood
V. Reed, 4 Gray, 574 ; Lucas v. Trum-
bull, 15 Gray, 306 ; Lynde v. Mc-
Gregor, 13 Allen, 175 ; Winchester v.
Charter, 97 Mass. 140; Holbrook v.
Holbrook, 113 Mass. 44; Wilcox v.
Waterman, 113 Mass. 296 ; Somers
V. Wright, 114 Mass. 171; Perkins v.
Barnes, 118 Mass. 484; Warshauer
V. Jones, 117 Mass. 345; Frear u.
Evertson, 20 Johns. R. 142; Padgett
W.Lawrence, 10 Paige, 170; Hubbell
V. Alden, 4 Lansing, 214; Jacobs v.
Remsen, 36 N. Y. 670; Taylor v.
Marshall, 14 Johns. 204; Beach v.
Wise, 1 Hill, 612; Sprague v. Knee-
land, 12 Wend. 161 ; Paige v. Cag-
win, 7 Hill, 361 ; Booth v. Swezey,
4 Seld. 279; Hanna v. Curtis, 1 Barb.
Ch. 263 ; Ogden i». Peters, 15 Barb;
660; Ford v. Williams, 3 Kern. 577;
Cuyler v. McCartney, 40 N. Y. 224;
Eby i;. Eby, 5 Penn. St. 435; Bailey
V. Clayton, 20 Penn. St. 295 ; Pringle
V. Pringle, 59 Penn. St. 281; Hart-
man V. Diller, 62 Penn. St. 37; Pier
V. DuflF, 63 Penn. St. 37; Lewis v.
Long, 3 Munford, 136; Houston i".
MoCluney, 8 W. Va. 135; Wynne
V. Glidewell, 17 Ind. 446; Hubble u.
Osborn, 31 Ind. 249; Burkholder v.
Casad, 47 Ind. 418 ; Campbell v. Coon,
51 Ind. 76 ; Cochran v. McDowell, 15
111. 10; Rivard v. Walker, 39 111. 413;
Dunaway v. School Direct. 40 111. 247;
Minor v. Phillips, 42 111. 126 ; Bun-
ker V. Green, 48 111. 243; Randegger
V. Ehrhardt, 51 111. 101; Savery v.
Spaulding, 8 Iowa, 239 ; Gray v. Earl,
13 Iowa, 188; Roebke v. Andrews, 26
Wise. 311 ; Burt v. McKinstry, 4
Minn. 204: Harshaw v. Moore, 12
Ired. L. 247; Hun sucker ». Farmer,
72 N. C. 372; De Bruhl v. Patterson,
12 Rich. 363; Gill v. Strozier, 32
Ga. 688 ; Cornett v. Cornett, 33 Ga.
219; Harrell v. Culpepper, 47 Ga.
635; Barber v. Terrell, 54 Ga. 146;
Porter v. Allen, 54 Ga. 623; Bilberry
V. Mobley, 21 Ala. 277; Cleaveland
V. Davis, 3 Mo. 331 ; Garland v. Har-
rison, 17 Mo. 282; Weinrich v. Por-
ter, 47 Mo. 293 ; Thompson v. Her-
ring, 27 Tex. 282; Garrahy v. Green,
32 Tex. 202; Carpenter v. Carpenter,
8 Bush, 283 ; Sumner v. Cook, 12
Kans. 162 ; Hutchings v. Castle, 48
Cal. 152.
" In all the cases in this state and
in Massachusetts, in which declara-
tions have been received, they related
to the land in controversy, were made
by the declarant while in possession,
395
§ 1166.]
THE LAW OF EVIDENCE.
[book m.
larations of a mortgagee, after assignment of mortgage to a third
person ; ^ and to a mortgagor's declarations after the execution
of the mortgage.^ Even a donor's depreciatory declarations are
inadmissible if made after the gift.^ A fortiori a grantor's sub-
sequent declarations cannot be received to dispute, as against
bond fide purchasers, the averments of his deed.*
§ 1166. It is othervirise, however, when the grantor's admis-
sions are made in presence of the grantee, and not dis-
sented from by the latter.^ So, also, " if the grantor
is permitted by the grantee to remain in actual posses-
sion of the thing granted, what be says may be given
in evidence on the principle that what a man sa5's who is in pos-
session of either lands or goods is admissible to prove in what
capacity he is there. But this exception cannot be extended to a
mere constructive possession. The possession is a fact, and how
Exception
in case of
concur-
rence or
fraud.
and were offered in evidence against
him or those deriving title under him.
Chapman v. Twitchell, 37 Me. 59;
Bartlett v. Emerson, 7 Gray, 174.
' The exceptions to the general rule
excluding hearsay evidence,' remarks
Gray, J., in Hall v. Mayo, 97 Mass.
418, 'which permit the introduction
of reputation or tradition, or of dec-
larations of persons deceased, as to
matters of public or general interest,
or questions of pedigree, do not ex-
tend to a question of private boun-
dary, in which no considerable num-
ber of persons have a legal intei-est.' "
Appleton, C. J., Sullivan Granite Go.
V. Gordon, 57 Me. 522.
A deceased person's declarations,
however solemnly made, cannot be
used to impeach u, prior assignment
made by him. Pringle v. Pringle, 59
Penn. St. 281.
1 Kinna v. Smith, 2 Green Ch. N.
J. 14.
^ Winchester v. Charter, 97 Mass.
140; Perkins v. Barnes, 118 Mass.
484 ; distinguishing Svveetzer v. Bates,
117 Mass. 466.
' Newman v. Wilbourne, 1 Hill Ch.
S. C. 10; Gregory v. Walker, 38 Ala.
396
26; Cornett v. Fain, 33 Ga. 219;
Grooms V. Rust, 27 Tex. 231. See
Jones V. Robertson, 2 Munf. 187.
* Pierce v. Faunce, 87 Me. 63;
Brackett V. Wait, 6 Vt. 411; Barnard
II. Pope, 14 Mass. 434 ; Taylor v.
Robinson, 2 Allen, 562; Tyler v. Ma-
ther, 9 Gray, 177; Gates v. Mowry, 15
Gray, 564; Varick v. Briggs, 6 Paige,
323 ; Padgett v. Lawrence, 10 Paige,
170; Vrooman v. King, 36 N. Y. 477;
Postens V. Postens, 3 Watts & S.
127 ; Ferguson u. Staver, 33 Penn. St.
411 ; Cochran v. McDowell, 15 111. 10;
Rust V. Mansfield, 26 111. 36; Gill .-.
Strozier, 32 Ga. 688; Cornett v. Cor-
nett, 33 Ga. 219; Price v. Bank, 17
Ala. 374 ; Stewart v. Thomas, 35 Mo.
202; Christopher v. Corrington, 2 B.
Hon. 357; Beall v. Barclay, 10 B.
Mon. 261 ; Cohn v. Mulford, 15 Cal.
50; Thompson v. Herring, 27 Tex.
282.
See Field v. Tibbetts, 57 Me. 358,
to the effect that such admissions
would be immaterial.
6 Lark «. Linstead, 2 Md. Ch. 162;
Myers v. Kinzie, 26 111. 36 ; Wiler v.
Manley, 51 Ind. 169; Wilson v. Wood-
ruflf, 5 Mo. 40.
CHAP. XIII.] ADMISSIONS BY PREDECESSOR IN TITLE. [§ 1167.
it is held is a fact ; and this may be shown by the declarations of
the possessor, on the same grounds upon which mere hearsay
is permitted when it forms part of the res gestae." ^ The same
result necessarily follows when there is a fraudulent collusion
between grantor and grantee ; ^ and where, as has been seen, the
assignor remains in possession after the assignment, actually, and
not only constructively,^ or there be circumstances independently
of the declaration, showing some complicity or acquiescence or
common purpose of fraud between the assignor and the as-
signee.*
§ 1167. To infect a grantee or vendee, however, with his
grantor's or vendor's fraud, it is necessary that he
should be privy to the fraud ; and hence the grantor's tions of
declarations as to the transaction being fraudulent on n*Anfe*ct"
his part are not admissible against the grantee, unless ™™g™'
there be proof of collusion aliunde.^ As against cred-
itors, however, such declarations, taken in connection with sus-
picious conduct by the grantee, are matters for consideration of
a jury in determining whether there is fraud.® When such dec-
1 Sharswood, J., Pier v. Duff, 63 very slight degree of concert or col-
Penn. St. 63. lusion is sufficient." Woodward, J.,
2 Waterbury t>. Sturtevant, 18 Wend. McDowell v. Rissell, 3 7 Penn. St. 164 ;
853, as qualified in Cuyler v. McCart- approved by Sharswood, J',, Hartman
ney, 40 N. Y. 228 ; Reitenbaoh v. v. Diller, 62 Penn. St. 43.
Reitenbach, 1 Rawle, 362; Wilbur v. « Carpenter w. Hollister, 13 Vt. 552
Strickland, 1 Rawle, 458; Hartman Alexander v. Gould, 1 Mass. 165
V. Diller, 62 Penn. St. 43. Infra, §§ Tibbals v. Jacobs, 31 Conn. 428
1194, 1205. Cuyler v. McCartney, 40 N. Y. 228
' Adams v. Davidson, 10 N. Y. 309 ; (overruling Waterbury v. Sturtevant,
McDowell i,-. Rissell, 37 Penn. St.'164; 18 Wend. 353); Reichart !'. Castator,
Pier V. Duff, 63 Penn. St. 59; Wiler 5 Binn. 109; Payne v. Craft, 7 Watts
». Manly, 51 Ind. 169; Grant r. Lewis, & S. 458. See Venable w. Bank U. S.
14 Wise. 487. 2 Pet. 107; Littlefield v. Getchell, 32
* Downs V. Belden, 46 Vt. 674; Me. 390; Cochran v. McDowell, 15
Cuyler v. McCartney, 40 N. Y. 228; 111. 10; Pinner v. Pinner, 2 Jones L.
Hartman v. Diller, 62 Penn. St. 37; 398; Hodge v. Thompson, 9 Ala. 131
Pier u. Duff, 63 Penn. St. 59 ; Lark B. Mahone t). Williams, 39 Ala. 202
Linsteed, 2 Md. Ch. 162 ; Myers v. CarroUton Bk. v. Cleveland, 15 La,
Kinzie, 26 111. 36; Randegger v. Ehr- 616 ; Enders v. Richards, 33 Mo. 598
hardt, 51 111. 101; Johnson u. Quarles, Zimmerman v. Lamb, 7 Minn. 421
46 Mo. 423. Bogert.u. Phelps, 14 Wise. 88 ; Selsby
"To make such declarations com- v. Redlon, 19 Wise. 17.
petent, there must be some evidence ° Bridge u. Eggleston, 14 Mass. 245;
of a common purpose or design: but a Jackson v. Myers, 11 Wend. 553;
397
§ 1169.] THE LAW OF EVIDENCE. [BOOK ID.
larations are made after the assignment, they are inadmissible,
except under the conditions above stated,^
§ 1168. It is also a necessary qualification of the rule before
Inadmissi- US, that such declarations are only admissible when self-
seff^eA" disserving ; in other words, when made by the predeces-
""S- sor in title knowingly against interest.^ But declara-
tions not self-disserving may become admissible when part of the
res gestae, or when offered to rebut contemporaneous statements.^
§ 1169. It should be remembered that the question is not
merely whether the declaration tends to disparage the
larations**^" declarant's estate, but whether in its bearing on the
MamsT successor against whom it was offered, it was, as to the
particiJar utterer, self-disserving when uttered. Nor can the dec-
larant affect by his admissions any estate which he
has not power to alienate or incumber. Thus it is held that a
tenant for life cannot prejudice, by an admission, the interest
of a remainder man or reversioner. On the other hand, where
a tenant in tail is by law regarded as representing the inheri-
tance, his acts and declarations may bind the parties in remain-
der.* It has, however, been held that slight evidence of owner-
ship will be sufficient to receive such declarations ; and a learned
Savage v. Murphy, 8 Bosw. 75 ; Mc- ters v. Varner, 5 Grat. 168 ; Hicks v.
Dowell V. Goldsmith, 6 Md. 319; Hun- Forrest, 6 Ired. Eq. 528; Hedrick v.
ter u. Jones, 6 Rand. 541 ; Satter- Gobble, 63 N. C. 48; Sasser v. Her-
white I'. Hicks, Busb. L. 105. ring, 3 Dev. L. 340; Cox ». Easely,
1 Dennison i;. Benner, 41 Me. 332 ; 11 Ala. 362; McMuUen ». Mayo, 8
Ellis V. Howard, 17 Vt. 330; Horri- Sm. & M. 298; Watson u. Bissell, 27
gan V. Wright, 4 Allen, 514; Hall v. Mo. 220; Tucker w. Tucker, 32 Mo.
Hinks, 21 Md. 406 ; Wheeler i>. Mc- 464 ; Leach v. Fowler, 22 Ark. 143. ,
Corristen, 24 HI. 40 ; Mobly v. Barnes, « Supra, § 258, 1102 ; Hodgdon b.
26 Ala. 718; Sutter o. Lackman, 39 Shannon, 44 N. H. 572; Marcy v.
Mo. 91 ; Jones v. Morse, 36 Cal. 205. Stone, 8 Gush. 4; Hood i. Hood, 2
" Peabody v. Hewett, 52 Me. 33; Grant (Penn.), 229 ; Hugus e. Walker,
Smith V. Powers, 15 N. H. 546; Newell 12 Penn. St. 173 ; Duffy v. Congrega-
V. Horn, 47 N. H. 379 ; Ware ». Brook- Hon, 48 Penn. St. 46 ; Dawson v. Cal-
house, 7 Gray, 454; Niles ti. Patch, laway, 18 Ga. 573; Nelson u; Iverson,
13 Gray, 254; Smith u. Martin, 17 17 Ala. 99; Thompson v. Drake, 32
Conn. 399; Jackson v. Cris, 11 Johns. Ala. 99.
R. 437; Riddle v. Dixon, 2 Penn. St. • See Reynoldson v. Perkins, Amb.
372; Sample v. Robb, 16 Penn. St. 563; Pendleton v. Rooth, 1 GifF. 45,
305; Alden v. Grove, 18 Penn. St. per Stuart, V. C. Ibid. 1 Giff. 35; 1
377; Miller v. State, 8 Gill, 141 ; Dor- De Gex, F. & J. 81, S. C.
sey V. Dorsey, 8 Har. & J. 410; Mas-
398
CHAP. xra.J
ADMISSIONS BY AGENT.
[§ 1170.
judge has gone so far as to say that where a person was seen
felling timber in a wood, this was a sufficient act of ownership,
though probably he was in fact a mere laborer, to raise a pre-
sumption that he was possessed of the fee, and consequently to
let in any statement made by him as to who was the actual pro-
prietor.^
VI. ADMISSIONS BY AGENT, ATTOENEY, AND REFEREE.
§ 1170. When an agent is employed to make a contract on
behalf of his principal, this involves the duty and
right of doing whatever is necessary to enable the con- ployed to
tract to be executed; and whatever statements the tract binds
agent may make, incidental to the discharge of this g" jepre-
duty, bind the principal as much as if tliey were made sentations
•' . . ^ J^ _ '' which are
by the principal. They are primary evidence, as part part of
of the contract, which it is not necessary to call the
agent himself to verify. ^ The principal cannot defend on the
1 Doe V. Arkwright, 5 C. & P. 575.
Parke, B.
' Hern v. Nichols, 1 Salk. 289 ;
Dawson v. Atty, 7 East, 367; K. v.
Hall, 8 C. & P. 358; Doe v. Hawkins,
2 Q. B. 212 ; Fonntaine v. K. R. L.
R. 5 Eq. 316; Mortimer v. McCallan,
6 M. & W. 58 ; Barwick v. Bk. L. R.
2 Exch. 259 ; Mechanics' Bank v. Bk.
of Columbia, 5 Wheat. 336 ; Cliquot's
Champagne, 3 Wall. 114 ; Demerrit
1). Meserve, 39 N. H. 521 ; Barber v.
Britton, 26 Vt. 112; Putnam v. Sulli-
van, 4 Mass. 45; Baring v. Clark, 19
Pick. 220; Bird v. Daggett, 97 Mass.
494 ; Willard v. Buckingham, 36 Conn.
366 ; Thallhimer v. BrinkerhoiF, 4
Wend. 394; Sandford v. Handy, 23
Wend. 260; Bennett v. Judson, 21 N.
Y. 230 ; New York & N. H. R. R. v.
Schuyler, 34 N. Y. 30 ; Anderson v.
R. R. 54 N. Y. 344 ; Hathaway v.
Johnson, 55 N. Y. 93 ; Green v. Ins.
Co. 62 N. Y. 642 ; Indianap. R. R. v.
Tyng. 63 N. Y. 663; Hough v. Doyle,
4 Rawle, 294; Penns. R. R. v. Plank
Road, 71 Penn. St. 360 ; Coliimb. Ins.
Co. V. Masonheimer, 76 Penn. St. 138;
Globe Ins. Co. v. Boyle, 21 Oh. St.
119; De Voss v. Richmond, 18 Grat.
338; Continental Ins. Co. v. Kasey, 25
Grat. 268 ; Madison R. R. v. Norwich
Sav. Co. 24 Ind. 458 ; Haller v. Craw-
ford, 37 Ind. 279 ; Rowell v. Klein, 44
Ind. 290; Mut. Ins. Co. v. Cannon, 48
Ind. 265 ; Chicago, &c. R. R. v. Cole-
man, 18 111. 297; Cook v. Hunt, 24
HI. 535 ; Chicago R. R. v. Lee, 60 111.
501 ; Pinnix v. McAdoo, 68 N. C. 56;
Doe V. Robinson, 24 Miss. 688. See,
also. Great Western Railway v. Willis,
18 C. B. N. S. 748. Thus, it has been
said : " When it is proved that A. is
agent of B., whatever A. does or says,
or writes in the making of a contract
as agent of B., is admissible in evi-
dence, because it is part of the con-
tract which he makes for B., and
therefore binds B." Per Gibbs, C.
J., Langhorn v. Allnutt, 4 Taunt. 619.
Evidence of an interpreter's version of
an agent's language is prima facie cor-
rect, and is evidence against the prin-
cipal without calling the interpreter.
399
§ 1171.J
THE LAW OF EVIDENCE.
[book hi.
ground that the representations made by the agent, within the
apparent scope of the agent's authority, were fraudulent. If he
reaps the fruits, he is liable for the misconduct by which these
fruits were produced.-"^ To a corporation, which can only con-
tract through agents, this rule is of necessary application.^ Such
fraudulent representations, when touching questions of fact,
avoid a contract made under their influence, and expose the
parties making or adopting them to an action for deceit.^ But
such declarations, when going to an admission of liability as a
question of law, cannot be used against the principal by a party
who negligently, without the inquiry incumbent on him, ac-
cepts them.* And, generally, a misrepresentation as to law will
not bind, when there is no fraud, and no misrepresentation of
facts.*
§ 1171. As an agent authorized to conduct a business enter-
Such rep- prise is to be regarded as empowered to take all the
tions bind- necessary steps to carry on such enterprise, he binds
Reid V. Hoskins, 6 E. & B. 953. Pow-
ell's Evidence, 4th ed. 259. That a
bank cashier may so bind the bank,
see Harrisburg Bk. v. Tyler, 3 Watts
& S. 373 ; and that a railroad presi-
dent may do so within his scope, see
Charleston R. R. v. Blake, 12 Rich.
634. So as to a protest by a master
of a vessel as binding his employers.
Atkins V. Elwell, 45 N. Y: 753.
^ Gladstone v. King, 1 Maule & S.
35 ; Willes v. Glover, 1 Bos. & Pul.
14 ; Fitzherbert v. Mather, 1 T. R. 12;
Proudfoot V. Mountefiori, L. R. 2 Q.
B. 50 ; Maynard v. Rhode, 1 C. & P.
360 ; Roberts v. Fonnereau, Park on
Ins. 285; Mackintosh v. Marshall, 11
Mee. & W. 116; Hammatt r. Emer-
son, 27 Me. 308 ; Ruggles v. Ins. Co.
4 Mason, 74; l^ibbe v. Ins. Co. 11
Gray, 163; Indianap. R. R. v. Tyng,
63 N. Y. 653 ; Rockford v. R. R. 65
111. 224 ; Wiggins v. Leonard, 9 Iowa,
194; Whart. on Agency, § 468.
= Nat. Ex. Co. V. Drew, 2 Macq.
103; Ranger v. R. R. 5 H. L. Cas. 72;
400
Mackay v. Com. Bk. L. R. 5 P. C.
391; Barwick v. Bk. L, R. 2 Ex. 259;
Smith V. Winterbotham, L. R. 8 Q. B.
244 ; Fogg v. Griffin, 2 Allen, 1 ; Mc-
Genness v. Adriatic Mills, 116 Mass.
177 ; Green's Price's Ultra Vires,
425; Whart. on Agency, §§ 57, 670,
671 ; Angell & Ames on Corp. 9th ed.
§ 309, and see Bank U. S. i. Dunn, 6
Pet. 51 ; Fairfield c. Thorp, 13 Conn.
173 ; Toll Bridge Co. v. Betsworth.SO
Conn. 380; Stewart v. Bank, 11 S. &
R. 267; Farmers' Bk. v. McKee, 2
Barr, 321 ; Spalding !•. Bk. 9 Barr, 28.
See cases cited supra, § 735.
' Whart. on Neg. § 164 et seq.
* Upton V. Tribilcock, 91 U. S. (1
Otto) 45, Hunt, J., citing Beaufort v.
Neald, 2 CI. & F. 248 ; Smith's case,
L. R. 2 Ch. Ap. 613 ; Denton i>. Mc-
Neil, L. R. 2 Eq.532.
^ Upton V. Tribilcock, ut supra;
Lewis V. Jones, 4 B. & C. 506 ; Rash-
all V. Ford, L. R. 2 Eq. 750 ; Starr
V. Bennett, 5 Hill, 303 ; Fish v. Cle-
land, 33 111. 243.
CHAP. XIII.] ADMISSIONS BY AGENTS. [§ 1172.
his principal, by all representations he may make with- i"g though
in the apparent scope of his duties, to parties dealing ized.
■with him without any notice of a restriction in this respect on
his powers. He may not only have no authority to make such
representations, but he may be expressly ordered not to make
them. As to parties, however, without knowledge of these lim-
itations, he binds his principal.^ His admissions are bilateral ;
in other words, they are part of the contract made by his princi-
pal, and as such, bind the prLacipal.
§ 1172. An apparent exception to the above rule arises from
the peculiar relation of applicants for insurance to Applicant
agents soliciting insurances. The agent is the party by ance°may
whom the application is prepared : the applicant is led ^ri'ten'"'
to regard the statements before him as mere matters of statement
o ^ ^ made by
form, and signs them accordingly. " In the case be- agent,
fore us," says Miller, J., when the question came before the
supreme court of the United States in 1871,^ a paper is offered
in evidence against the plaintiff containing a misrepresentation
concerning a matter material to the contract on which the suit is
brought, and it is not denied that he signed the instrument, and
that the representation is untrue. But the parol testimony
makes it clear beyond a question, that this party did not intend
to make that representation when he signed the paper, and did
not know he was doing so, and, in fact, had refused to make any
statement on that subject. If the writing containing this repre-
sentation had been prepared and signed by the plaintiff in his
application for a policy of insurance on the life of his wife, and
if the representation complained of had been inserted by him-
self, or by some one who was his agent alone in the matter, and
forwarded to the principal office of the defendant corporation,
and acted upon as true, by the officers of the company, it is easy
to see that justice would authorize them to hold him to the
truth of the statement ; and that as they had no part in the mis-
take which he made, or in the making of the instrument which
? Barwick v. Eng. Joint St. Co. P. ker, 1 Mete. (Mass.) 193 ; MundorfE
R. 2 Exc. 259; Maddoek v. Marshall, v. Wickersham, 63 Penn. St. 87. See
18 C. B. (N. S.) 829; Edmunds v. Whart. on Agency, §§ 122, 460.
Bushell, L. R. 1 Q. B. 97 ; Burnham " Ins. Co. v. Wilkinson, 13 Wall,
w. K. R. 63 Me. 298; Lobdell o. Ba- 222.
VOL. II. 26 401
§ 1172.] THE LAW OF EVIDENCE. [BOOK III.
did not truly represent what lie intended, he should not, after
the event, be permitted to show his own mistake or carelessness
to the prejudice of the corporation. If, however, we suppose
the party making the insurance to have been an individual, and
to have been present when the application was signed, and solic-
iting the assured to make the contract of insurance, and that
the insurer himself wrote out all these representations, and was
told by the plaintiff and his wife that they knew nothing at all
of this particular subject of inquiry, and that they refused to
make any statement about it, and yet knowing all this, Wrote
the representation to suit himself, it is equally clear that for the
insurer to insist that the policy is void because it contains this
statement, would be an act of bad faith and of the grossest in-
justice and dishonesty. And the reason for this is, that the rep-
resentation was not the statement of the plaintiff, and that the
defendant knew it was not when he made the contract ; and that
it was made by the defendant, who procured the plaintiff's signa-
ture thereto." ^ In other words, in cases of this class, a party is
note stopped by representations made in his behalf by a person
who, though nominally his agent, is really the agent for the other
contracting party. ^
' That the agent of the insurer can- In Maher v. Ins. Co., of which an
not, by processes of the character abstract is given in the Alb. L. J.,
above noticed, be made the agent of Jan. 20, 1877, the plaintiff applied to
the insured, so as to estop the in- a local insurance agent of defendant
sured, see Ins. Co. v. Mahone, 21 for insurance upon a buildi'ng occupied
Wall. 157; Malleable Iron Works v. as a dwelling, grocery, and saloon.
Ins. Co. 25 Conn. 465 ; Hough v. Ins. The agent knew the building, and the
Co. 29 Conn. 10; Hunt v. Ins. Co. 2 use which was made of it. A policy
Duer, 481 ; Rowley v. Ins. Co. 86 N. Y. of insurance was issued which con-
550 ; Clinton v. Ins. Co. 45 N. Y. 454 ; tained a clause setting forth that the
Globe Ins. Co. v. Boyle, 21 Oh. St. building was occupied as a dwelling.
119 ; North Am. Ins. Co. ti. Throop, 22 Plaintiff, doubting the validity of the
Mich. 146 ; Anson v. Ins. Co. 23 Iowa, policy, appealed to the agent to have
84 ; New England Ins. Co. i». Schet- it so changed that there would be no
tier, 38 El. 166 ; Commerc. Ins. Co. v. doubt as to its validity, and was told
Ives, 56 111. 402 ; Sullivan v. Ins. Co. that the wording in the policy prop-
43 Ga. 423. erly described tie building, and the
^ See, as qualifying the above con- general agent afterward told plaintiff
elusion, Jennings v. Ins. Co. 2 Denio, the same thing. In an action for loss,
75 ; Brown v. Ins. Co. 18 N. Y. 385, the defendant set up the misdescrip-
overruled by subsequent New York tion in the policy as to the use of the
cases, cited above. house, as a defence, avoiding it. Held,
402
CHAP. XIII.]
ADMISSIONS BY AGENTS.
[§ 11T3.
§ 1173. Indeed, whenever an agent makes a business arrange-
ment or does an act representing his principal, what he Agent's
does or says in respect to the arrangement or act, while receivabi"'
it is in progress, is so far part of the res gestae as to be '^^^^^^^
subsequently admissible in evidence on behalf of either gestae.
that plaintiff having been, by the acts
of defendant's agents, misled as to the
effect of the provision in the policy,
and prevented from changing such
policy, the defendant could not take
advantage of such provision, or ex-
clude evidence of the declarations of
its agents. In the same case, on the
above condition of facts, the com-
plaint asked for a reformation of the
policy to correspond vpith the inten-
tion of the insurer, and a judgment
for plaintiff upon it as reformed. It
was held, that evidence of the transac-
tion between plaintiff and the agents
of defendant was admissible to estab-
lish the intention of the parties as to
the terms of the contract. And it
was further ruled, that an action for
the reformation of a contract, and a
recovery thereon, could be brought,
and it was not irregular to try such
action before a judge and jury. By
a condition of the policy it was pro-
vided that fraud or false swearing
should vitiate the policy. The plain-
tiff in his proof of loss, that he was re-
quired by the policy to make, swore
that the insured building was occu-
pied as a dwelling-house, and for no
other purpose whatever. Held, that
the defendant knowing to the con-
trary, was not and could not be de-
ceived by the false statement, and
therefore could not take advantage of
the same after having received the
proof of loss without question. Ibid.
Decided Nov. 14, 1876. Reported
below, 6 Hun, 353.
The following is part of a compre-
hensive review of the authorities, by
Cooley, J., in a recent case in Mich-
igan : " In this case it is conceded that
the oral answer made to the inquiry
about incumbrances mentioned the
large mortgage, but it is disputed that
it specified the small one also. The
plaintiff claims that he gave the agent
full information on the subject, and
insists that if there was any failure to
mention it in the application, it was
for reasons operating exclusively upon
thS mind of the agent, and not affect-
ing his own action. We think evi-
dence of these facts was competent.
Its purpose was, not to vary or con-
tradict the contract of the parties, but
to preclude the party who had claimed
it from relying upon incorrect recitals
to defeat it, when he himself had
drafted those recitals, and was mor-
ally responsible for their truthfulness.
Plumb V. Cattaraugus Mutual Ins. Co.
18 N. Y. 394; Rowley v. Empire Ins.
Co. 36 N. Y. 550 (overruling earlier
New York cases) ; Anson v. Winne-
sheik Ins. Co. 23 Iowa, 84; Malleable
Iron Work v. Phoenix Ins. Co. 25
Conn. 465 ; New England F. & M.
Ins. Co. V. Schettler, 38 111. 166;
Hough V. City Eire Ins. Co. 29 Conn.
10; Patten v. Farmers' F. Ins. Co. 40
N. H. 383 ; Columbia Ins. Co. v.
Cooper, 50 Penn. St. 331 ; Olmstead
V. .Sltna Live Stock, &c. Ins. Co. 21
Mich. 246. And we think the estop-
pel is precisely the same where the
agent of the insurer drafts the papers,
as it would be in the case of an indi-
vidual insurer who was himself per-
sonally present and acting. Rowley
V. Empire Ins. Co. 36 N. Y. 550; An-
son V. Winnesheik Ins. Co. 23 Iowa,
84 ; Marshall v. Columbian F. Ins. Co.
403
§ 1173.]
THE LAW OF EVIDENCE.
[book in.
party. Whenever the agent's acts are so admissible, then his
declarations, explanatory of these acts, are admissible ; nor in
proving such declarations is it necessary that he should be him-
self called.^
27 N. H. 165; Peoria M. & F. Ins.
Co. V. Hall, 12 Mich. 214; Woodbury
Savings Bank v. Charter Oak Ins. Co.
31 Conn. 517." Cooley, J., TheNorth
American Fire Insur. Co. v. Throop,
22 Mich. R. 158.
1 Bree v. Holbrook, Doug. 654 ;
Fitzherbert v. Mather, 1 T. R. 12;
Biggs V. Lawrence, 3 T. R. 454 ; Fair-
lee V. Hastings, 10 Ves. 123; Garth v.
Howard, 8 Bing. 451 ; Mortimer, v.
McCallen, 6 M. & W. 58 ; Howard v.
Sheward, L. R. 2 C. P. 148; Lee
V. Munroe, 7 Cranch, 366 ; Flint v.
Transp. Co. 7 Blatch. 536 ; Lamb v.
Barnard, 16 Me. 364 ; Burnham v. R.
B. 63 Me. 298 ; Baring v. Clark, 19
Pick. 220 ; Cooley v. Norton, 4 Cush.
93; Lobdell v. Baker, 1 Mete. (Mass.)
193 ; Willard v. Buckingham, 36
Conn. 395; Bristol Knife Co. v. Bank,
41 Conn. 421 ; Bank U. S. v. Davis,
2 Hill (N. Y.), 451; Sandford v.
Handy, 23 Wend. 260; Thalhimer v.
Brinkerhoof, 6 Cow. 90; McCotter v.
Hooker, 4 Seld. 497; Price v. Pow-
ell, 3 Comst. 322 ; Hannay v. Stew-
art, 6 Watts, 487; Stockton v. De-
muth, 7 Watts, 39 ; Reed v. Dick,
8 Watts, 479 ; Woodwell v. Brown,
44 Penn. St. 121 ; Hanover R. R. v.
Coyle, 55 Penn. St. 396; Dodge v.
Bache, 57 Penn. St. 421; Union R.
R. V. Riegel, 73 Penn. St. 72; MuUan
V. Steamship Co. 78 Penn. St. 25 ;
Grim V. Bonnell, 78 Penn. St. 152;
Thomas v. Sternheimer, 29 Md. 268;
Sisson V. R. R. 14 Mich. 489 ; Toledo
R. R. V. Goddard, 25 Ind. 185 ; White-
side D. Margarel, 51 111.507; Sweat-
land V. Tel. Co. 27 Iowa, 483; Sim-
mons V. Rust, 39 Iowa, 241 ; Perinix
V. McAdoo, 68 N. C. 370; McComb v.
404
R. R. 70 N. C. 178 ; South. Exp. Co.
V. Duffey, 48 Ga. 358 ; Strawbridge v.
Shawn, 8 Ala. 820 ; Bohannan v.
Chapman, 13 Ala. 641; Beardslee v.
Steinmesch, 38 Mo. 168; Union Sav-
ings Co. V. Edwards, 47 Mo. 445 ;
Malecek v. R. R. 57 Mo. 17; Robinson
V. Walton, 58 Mo. 380 ; Neely v. Na-
glee, 23 Cal. 152 ; Smith v. Wallace,
25 Wise. 55 ; Owens v. Northrup, 30
Wise. 482.
" But sometimes the declarations of
an agent, which are part of any res
gestae which is the subject of inquiry,
are received against the principal.
The principal constitutes the agent
his representative in the transaction
of certain business; whatever, there-
fore, the agent does, in the lawful
prosecution of that business, is the act
of the principal whom he represents;
and when the acts of the agent will
bind the principal, his declarations
respecting the subject matter will also
bind him, if made at the same time
and constituting part of the res gestae.
They are then in the nature of orig-
inal evidence and not of hearsay, and
are the ultimate fact to be proven,
and not an admission of some other
fact. They must be made not only
during the continuance of the agency,
but in regard to a transaction depend-
ing at the very time. 1 Greenleaf
Evidence, § 113; Luby v. R. R. 17 N.
Y. 131." Earl, C, Anderson w. R.
R. 54 N. Y. 340. See, also, Toledo
R. R. V. Goddard, 25 Ind. 185.
"It has been often held that, to
make declarations admissible on this
ground, they must not have been mere
narratives of past occurrences, but
must have been made at the time of
CHAP. XIII.]
ADMISSIONS BY AGENTS.
[§ 1174.
§ 1174. The statements as well as the conduct of an agent,
during the performance of a tort, are imputable to the
principal, as part of the res gestae, whenever the tort
itself is so imputable. Thus the admission of the captain of a
steamer, as to damage to crops on shore by fire from the steamer,
made while she was running under his command, and at the time
the fixe was communicated, are evidence against the owners who
employed him,^ and so of the admissions of a captain of a vessel
at the time of carrying off a slave ; ^ and of the declarations of
the servants of a railroad company at the time of a collision ; *
and of the admissions of the servant of a common carrier during
the period of the carrying, if such admissions are not na.rratives
of a past act.* It is essential, however, that they should- be
coincident with the events to which they refer. If made after
there has been an interval giving time for reflection, then, unless
the agent be empowered to speak for the company at such time,
statements of the agent, explaining or even admitting the act,
cannot be received, though he continues in the company's employ-
ment.^
" And there is nothing in any of
the decisions cited by the defendants
in error inconsistent with such a rule.
The case of The Enterprise, cited
from 2d Curtis, was a suit in admi-
ralty, for subtraction of wages, and
the declarations of the master respect-
ing the contract with the seamen were
admitted, though not a part of the
res gestae. But the decision was rested
upon the ground that the admiralty
rule is different from the rule at com-
mon law. The case of Burnside v.
The Grand Trunk Eailroad Co., cited
from 47 New Hampshire, simply de-
cides that the statements of the gen-
eral freight agent as to the condition
of goods delivered to him for trans-
portation, made while the goods are
still in transit, or while the duty of
the carrier continues, are admissible
in evidence against the company.
This was a case of contract not exe-
cuted, and, while it remained unexe-
cuted, the agent had power to vary it;
405
the act done which they are supposed
to characterize, and have been well
calculated to unfold the nature and
character of the acts they were in-
tended to explain, and to so harmonize
with them as to constitute a single
transaction. Bnos v. Tuttle, 3 Conn.
R. 250; Comstock v. Hadlyme, 8 Ibid.
263; Russell v. Frisbie, 19 Ibid. 209;
Ford V. Haskell, 32 Ibid. 492; Brad-
bury, w. Bardin, 35 Ibid. 583; Sears v.
Hayt, 37 Ibid. 406." Phelps, J.,
Rockwell V. Taylor, 41 Conn. R. 59.
1 Gerke v. Steam Nav. Co. 9 Cal. 251'.
' Price V. Thornton, 10 Mo. 135.
' Toledo R. R. v. Goddard, 25 Ind.
185.
* Packet Co. v. Clough, 20 Wall.
540; Burnside v. R. R. 47 N. H. 554.
* On this point may be studied an
authoritative opinion by Strong, J.,
in the supreme court of the United
Statgs (Packet Co. v. Clough, 20 Wall.
541), which, after reaffirming the rule
above given, proceeds : —
§ 1175.J
THE LAW OF EVIDENCE.
[book m.
§ 1175. We have already noticed,^ that a principal is estopped,
as against the other contracting parties, by such of his
agent's representations as were among the inducements
leading such other contracting parties to execute the
contract. But as primd facie proof against the prin-
cipal may also be introduced (in all cases in which the
agent is authorized so to speak for the principal) the agent's
Authority
to make
non-con-
tractual
admissions
must be
express.
had, in fact, complete control over it.
The transaction was still depending,
and the agent was still in the execu-
tion of an act which was within the
scope of his authority. But in the
present case the declarations admitted
were not made in the transaction of
which the plaintiffs complain, or while
it wjis pending. They refer to nothing
present. They are only a history of
the past. It is argued they were made
before the voyage, upon which Mrs.
Clough entered, was completed. True,
they were, but they were not the less
mere narration. The accident was
past. The injury to Mrs. Clough was
complete. The only wrong she sus-
tained, if any, had been consummated
two days before. We cannot think
the fact that she had not arrived at
her port of destination is at all mate-
rial. If she had left the steamer be-
fore the declarations were made, it is
not claimed, as certainly it could not
be, that they were admissible. Now,
suppose two persons were injured by
the negligence which the plaintiffs
assert, and one of them had left the
boat before the captain's declarations
were made, clearly they would have
been inadmissible in favor of the per-
son whose voyage had been completed.
This is not denied. Yet the connec-
tion between them and the accident
would be as close in that case as in
this. Can they be admissible in the
one case and not in the other ? As-
suredly not. We must hold, there-
fore, that there was error in admitting
406
in evidence the statement of the cap-
tain of the steamboat made two days
after the wrong was done of which
the plaintiffs complain." Strong, J.,
Packet Co. v. Clough, 20 Wall. 540.
To the same effect, see Allen v.
Denstone, 8 C. & P. 760; Fairlie v.
Hastings, 10 Ves. 123; Garth W.How-
ard, 8Bing. 431; Langhorn v. AUnut,
4 Taunt. 519; Mortimer v. McCallan,
6 M. & W. 58; Great W. R. E. v.
Willis, 18 C. B. (N. S.) 748; Maury
V. Talmadge, 2 McLean, 157; Robinson
V. R. R. 7 Gray, 92 ; Wakefield v. R.
R. 117 Mass. 544; Enos v. Tattle, 3
Conn. 250; Sears v. Hayt, 37 Conn.
406 ; Rockwell v. Taylor, 41 Conn.
59; Luby v. R. R. 17 N. Y. 131; An-
derson V. R. R. 54 N. Y. 334; Price
V. R. R. 31 N. J. L. 229 ; Penn. R. E.
V. Books, 57 Penn. St. 339; Va. &
Tenn. R. R. v. Sayers, 26 Grat. 329;
Milwaukee R. R. v. Finney, 10 Wise.
388; Mich. Cent. R. R. v. Gongaz, 55
111. 503; Mich. Cent. R. R. v. Cole-
man, 28 Mich. 446; Osgood v. Brin-
golf, 32 Iowa, 265; Tread way v. R.
R. 40 Iowa, 527; Patterson v. R. E.
4 S. C. 153 ; Griffin v. R. R. 26 Ga.
Ill; East Ten. R. R. v. Duggan, 51
Ga. 212; Mobile R. R. v. Ashcraft,
48 Ala. 15; Murphy v. May, 9 Bush,
33; Nashville R. R. v. Messino, 1
Sneed, 220; and see fully for distinc-
tions stated infra, § 1176.
As extending the period of the res
gestae, see Malecek v. R. R. 57 Mo.
20.
• > Supra, § 1170.
CHAP. XIII.] ADMISSIONS BY AGENTS. [§ 1175.
non-contractual admissions, made after the contract is executed.
Of these admissions, two incidents are to be noticed : (1.) Being
non-contractual and unilateral,^ they are not conclusive on the
principal ; and, (2) they cannot be put in evidence unless ex-
press authority to make them can be proved. "As a general
proposition, what one man says, not upon oath, cannot be evi-
dence against another man. The exception must arise out of
some peculiarity of situation, coupled with the declarations made
by one. An agent may undoubtedly, within the scope of his
authority, bind his principal by his agreement ; and in many
cases by his acts. What the agent has said may be what con- ■
stitutes the agreement of the principal ; or the representations or
statements made may be the foundation of, or the inducement to,
the agreement. Therefore, if writing is not necessary by law,
evidence must be admitted to prove that the agent did make the
statement or representation. So, with regard to acts done, the
words with which those acts are accompanied frequently tend to
determine their' quality. The party, therefore, to be bound by
the act, must be affected by the words. But, except in one or
the other of those ways, I do not know how v^hat is said by an
agent can be evidence against his principal. The mere assertion
of a fact cannot amount to proof of it ; though it may have some
relation to the business, in which the person making that assertion
was employed as agent." ^ . . . . Peculiarly is this the case with
^ See supra, § 1083. Cush. 93; Dome u. Man. Co. 11 Cush.
2 Sir W. Grant in Fairlie v. Has- 205; Johnson v. Trinity Church, 11
tings, 10 Ves. 126. See to same gen- Allen, 123; Fogg v. Pew, 10 Gray,
eral effect, Doe u. Roberts, 16 M. & 409; Blanchard u. Blackstone, 102
W. 778; Faussett u. Faussett, 7 Ec. & Mass. 343; Wilson v. Bowden, 113
Mar. 93; Garth v. Howard, 8 Bing. Mass. 422; Anderson t'. Bruner, 112
451 ; Wharton on Agency, § 160 ; Mass. 14; Lane v. R. R. 112 Mass.
Chicago V. Greer, 9 Wall. 726 ; Ins. 455 ; Cortland Co. v. Herkimer, 44 N.
Co. V. Mahone, 21 Wall. 152; Gooch T. 22; Lansing i'. Coleman, 58 Barb.
V. Bryant, 13 Me. 386; Bank v. Stew- 611; Happy v. Mosher, 48 N. Y. 313;
ard, 37 Me. 519; Burnham v. Ellis, Hoag v. Lamont, 60 N. Y. 96; First
39 Me. 319 ; Woods v. Banks, 14 N. Nat. Bk. v. Ocean Bk. 60 N. Y. 279;
H. 101; Page v. Parker, 40 N. H. 47; Runkv. Ten Eyck, 24 N. J. L. 756;
Lowe V. R. R. 45 N. H. 370 ; Barnard Pier v. DufiF, 63 Penn. St. 59; Custar
1-. Henry, 25 Yt. 289; Uphamu.Whee- w. Gas Co. 63 Penn. St. 381; Columb.
lock, 36 Vt. 27; Wheelock v. Hard- Ins. Co. v. Masonheimer, 76 Penn. St.
wick, 48 Vt. 19; Corbin v. Adams, 6 138 ; Bradford v. Williams, 2 Md. Ch.
407
§ 1176.] THE LAW OF EVIDENCE. [BOOK m.
regard to admissions made by an agent as to the character of a
past act as to which his principal is charged with liability .^
§ 1176. In respect to torts, a distinction is to be noticed be-
So as to tween torts based on contract, and torts consisting of a
'°"^' violation of the duty Sic utero tuo ut non alienum laedas,
or, as they are called in the Roman law, Aquilian torts.^ (1.) If
I order an agent to make a contract into which fraud or other
wrong enters, so that the contract is tortious, then I am bound
by all the statements he may make in the performance of his
agency ; and I am estopped by these statements so far as they
induce the other contracting party to alter his position.^ (2.) If
I direct an agent to injure another person (e. ff. to pull down
his house, or assault his person), then, as my agent is a co-con-
spirator with me, his admissions can be put in evidence against
me, if made while the relationship continues ; * though, when
they are unilateral ^ (i. e. not part of a contract), they may
be explained or rebutted by me. But (3.) if, when in per-
formance of my lawful duty to a third person, iny agent, from
carelessness, injures such third person (e. g. as is the case with
the agents of a railroad company negligently injuring a passen-
1; Wheatley U.Wheeler, 34 Md. 62; i Infra, § 1180; Packet Co. v.
Bait. & 0. R. R. V. Gallahue, 12 Grat. Clougli, cited in last section; Frank-
655 ; Bait. R. R. v. Christie, 5 W. Va. lin Bk. v. Cooper, 36 Me. 179 ; Craig
325; Thomas u. Rutledge, 67 HI. 213; v. Gilbreth, 47 Me. 416; Lime Rock
Linblom ?;. Ramsey, 75 111. 246 ; Grim- Bk. v. Hewett, 52 Me. 531; Pemige-
shaw V. Paul, 76 HI. 164; Converse vs wassett Bk. ». Rogers, 18 N. H. 255;
Blumrich, 14 Mich. 109 ; Peck v. De- Austin v. Chittenden, 33 Vt. 553 ;
troit, 29 Mich. 313; Fort Wayne R. Robbinson v. R. R. 7 Gray, 192;
R. V. Gildersleeve, 83 Mich. 133; Chelmsford v. Demarest, 7 Gray, 1;
Smith y. Wallace, 25 Wise. 55 ; Lucas Wakefield v. R. R. 117 Mass. 544;
V. Barrett, 1 Greene (Iowa), 510; Anderson v. R. R. 54 N: Y. 334;
Swenson v. Aultman, 14 Kans. 273; Price v. R. R. 31 N. J. L. 229; Bank
Griffin u. R. R. 26 Ga. 11 ; Weight o. Davis, 6 Watts & S. 285 ; Mobile
V. R. R. 26 Ga. 330 ; Wilcox v. Hall, R. R. o. Ashcraft, 48 Ala. 15. See
53 Ga. 635 ; Newton v. Wliite, 53 more fully, Wharton on Agency, §
Ga. 395; Todd v. Bank, 54 Ga. 497; 160.
Governor v. Baker, 14 Ala. 652 ; Win- " See AVharton on Negligence, §§
ter V. Bent, 31 Ala. 83; Alabama R. R. 8, 786, for an expansion of this dis-
V. Johnson, 42 Ala. 242; Mobile R. tinction.
R. V. Ashcraft, 48 Ala. 15; Golson v. " See supra, § 1170.
Ebert, 52 Mo. 260; Cosgrove ti. R. R. * Infra, § 1205.
54 Mo. 495; Cook v. Whitfield, 41 ^ See supra, § 1079.
Miss. 541.
408
CHAP. XIII.J ADMISSIONS BY AGENTS. [§ 1177.
ger), then, as his tort is entirely outside of his agency, such only
of his statements as are part of the tortious act are admissible
against me, and these statements (being non-contractual, i. e.
not part of the consideration of a contract) can be rebutted by
me. His subsequent statements are not admissible against me,
because he was not my agent, either real or apparent, for the
purpose of making such statements. These statements are there-
fore mere hearsay.^ Thus it has been correctly held that the
statements of agents of a railroad company, as to the condi-
tion of the brakes on the cars, or as to the condition of the
road at the place where the accident occurred, such statements
having been made some time before, or some time after the ac-
cident, are not admissible against the company, no authority in
the agent to make the admissions being proved.^ "I think,
therefore, upon principle and authority, that the declarations of
the brakesman and section master made at the time, and under
the circumstances when made, were not a part of the res gestae,
but mere hearsay, and ought to have been excluded. There was
no reason why the brakesman and section master should not
have been examined as witnesses, and their declarations not being
made at such times and under such circumstances as make them
a part of the res gestae were mere hearsay." ^ So the admis-
sion of a brakeman, after an accident, imputing negligence to
the engineer, cannot be received.*
§ 1177. We have already noticed the important distinction be-
tween contractual and non-contractual admissions by General
an agent. When a declaration is made coincident with "-s™' ™»y
^ make nou-
a contract, then the declaration binds the declarant as contractnai
part of the contract. When, however, a declaration is
made as elucidating the character of a past transaction, then this
declaration does not bind in the way of an estoppel, but simply
operates as an admission, to be received for what it is worth,
against the party making it. Its effect, as we have seen,^ is
rather to relieve the opposite party from proving the fact ad-
mitted, than to give evidence of such fact. It is rather, there-
^ See authorities, supra, § 1174. * Michigan Cent. E. K. v. Coleman,
' Va. & Tenn. R. K. Co. v. Sayers, 28 Mich. 446 ; and see other cases
26 Grattan, 329. cited supra, § 1174.
« Christian, J., Va. & Tenn. K. R. ' Supra, § 1075.
Co. V. Sayers, 26 Grattan, 351.
409
§ 1177.] THE LAW OF EVIDENCE. [BOOK in.
fore, a dispensation from proof, than proof itself. That a prin-
cipal may thus admit has been already abundantly illustrated ;
and what he can do in his own person, he can do through an
agent. Attorneys, for instance, are in constant habit of admit-
ting, as we will presently see, certain portion of the opponent's
case ; and the judicious exercise of this power is as beneficial to
the principal as it is conduciye to a prompt and rational dis-
charge of juridical business. When admissions are so made by
an agent authorized thus to speak for the principal, they bind
the principal as much as if they were made by himself. A cor-
poration may be represented by a manager, whose express office
it may be to make admissions of this class ; and in such case his
admissions bind his principal. Thus it has been held in Eng-
land that on a suit against a railroad company, for a lost parcel,
a statement made by the station master, generally representing
the defendant, intimating that the parcel was stolen by a porter
of the defendant, is admissible against the defendant.^ So, in
Massachusetts, in an action against a manufacturing corporation
for a nuisance, a statement of its superintendent that the nui-
sance existed and would be remedied, and that " he would not
have it around his place for $500," is competent evidence against
the corporation, — the superintendent being the corporation's gen-
eral representative.^ So, generally, power to an agent to admit,
necessarily transfers the agent's admissions to the principal.^
1 Kirkstall v. R. R. L. R. 9 Q. B. tended to and should be, was there-
468. See Morse v. R. R. 6 Gray, fore properly put in evidence. Morse
450. t;. Connecticut River R. R. 6 Gray,
^ McGenness K Adriatic Mills, 116 450. The expression used by him, tliat
Mass. 177. he 'would not have it around his
"The remaining question is in refer- place, as it was around there, for
ence to the admission in evidence of $500,' was a mere mode of stating that
the statement of the superintendent, the nuisance existed, and could not
The defendant is a corporation, and have been considered as an admission
can only act through its agents, and, that this sum was the amount of the
in the absence of any evidence to the damages, nor do we understand that it
contrary, the superintendent in charge was put in evidence as such." Dev-
of the mill must be deemed the proper ens, J., McGenness v. Adriatic Mills,
person to whom to make complaint, 116 Mass. 180. See to same effect,
and to have authority to give informa- Charleston R. R. v. Blake, 12 Rich,
tion and direction in regard to the S. C. 684.
drainage from it. His recognition that ' Burt v. Palmer, 5 Esp. 145 ;
it was a matter that required to be at- Coates v. Bainbridge, 5 Bing. 58 ; An-
410
CHAP. Xra.] ADMISSIONS BY AGENTS. [§ 1180.
§ 1178. Where, however, there is no special power given to an
agent to represent the principal for the purpose of settlement,
or other action involving the power to admit, then, it must be
again noticed, the agent's declarations as to facts are hearsay,
unless part of the res gestae. The agent himself must be called to
prove these facts ; his statements as to them, as reported by
other witnesses, cannot be received.^ " The admission of an
agent cannot be assimilated to the admission of the principal.
The party is bound by his own admission ; and is not " (when it
is part of the contract) " permitted to contradict it. But it is
impossible to say a man is precluded from questioning or contra-
dicting anything any person has asserted as to him, respecting
his conduct or his agreement, merely because that person has
been an agent of his. If any fact, material to the interest of
either party, rests in the knowledge of an agent, it is to be
proved by his testimony, and not by his mere assertion." ^
§ 1179. It is scarcely necessary here to repeat that state-
ments of an agent, not part of a contract, are, in the Non-con-
few cases in which they are admissible in evidence, t™<='."ai
.' _ _ _ ' admissions
open to correction and explanation by the principal, open to
mi • • T 1 • 1 • •! correction.
Ihis IS the case, as we have seen, with similar st ite-
ments by the principal himself.^ This rule is peculiarly applica-
ble to statements which are thrown ofE by the agent carelessly,
and without full knowledge of the circumstances.*
§ 1180. So far as concerns dispositive or contractual represen-
tations, the power of an agent (who is not a general In on-
agent for all purposes) to bind his principal in this terbu'si-
way ceases when the particular business is transacted, closed,
derson v. Sanderson, 2 Stark. 204 ; ^ gj^ William Grant, in Fairlie v.
Morse v. R. E. 6 Gr.ay, 450; Hyland Hastings, 10 Ves. 126.
V. Sherman, 2 E. D. Smith, 234; Ins. » Supra, §§ 1078, 1083.
Co. ji. Woodruff, 26 N. J. L. 541; ^ Craig o. Gilbreth, 47 Me. 416 ;
Cnstar v. Gas Co. 63 Penn. St. 381; Austin v. Chittenden, 33 Vt. 553;
Bennett u. Holmes, 32 Ind. 108; Howe Hubbard v. Elmer, 7 Wend. 441;
D. Snow, 32 Iowa, 433; Ward u. Leitch, Tracy v. McManus, 58 N. Y. 257 ;
30 Md. 326 ; Buchanan v. Collins, 42 Patton v. Minesinger, 25 Penn. St.
Ala. 419; Northrup v. Ins. Co. 47 393; Custar v. Gas Co. 63 Penn. St.
Mo. 435. This position is pushed to 381; Franklin Bank v. Nav. Co. 11
undue length in Malecek v. B. R. 57 Gill & J. 28; Milwaukee R. R. v.
Mo. 20. Finney, 10 Wise. 388.
* See for authorities, supra, § 1174.
411
§ 1180.]
THE LAW OF EVIDENCE.
[book III.
agent's His representations, made during the negotiation, con-
rep^esenta- clude his principal, as we have seen, when they are
tion ceases. p^j,j. ^j ^j^g consideration of the contract. His admis-
sions (if he he a mere special agent for the particular purpose),
made after the contract is executed, are not even admissi-
ble against the principal.^ We therefore, in this relation, fall
^ Hern v. Nichols, 1 Salk. 289; which is the subject of inquiry, and
while acting within the scope of his
authority, may be given in evidence
against his principal, as a part of the
res gestae. It is equally as well set-
tled that the declarations of an agent,
made after the transaction is ' fully
completed and ended,' are not admis-
sible. Magill V. Kaufiman, 4 S. & R.
320; Hough v. Doyle, 4 Rawle, 291 ;
Clark V. Baker, 2 Whart. 340 ; Bank
of Northern Liberties v. Davis, 6 W.
6 S. 285 ; Penna. K. B,. Co. o. Books,
7 P. F. Smith, 339. The declarations
of officers of a corporation rest upon
the same principles as apply to other
agents." Ibid.; Huntington E. E. v.
Decker, 3 Weekly Notes, 121.
The admissions of telegraph opera-
tors, made after the message is deliv-
ered, and not part of the res gestae,
cannot be received to affect the com-
pany, in a suit against it for negli-
gence. Mc Andrew v. Tel. Co. 17 C.
B. 3; Robinson v. R. R. 7 Gray, 92;
Grinnell v. Tel. Co. 112 Mass. 299;
U. S. V. Gildersleeve, 29 Md. 232;
Sweetland v. Tel. Co. 29 Iowa, 433;
Aiken v. Tel. ,Co. 5 S. C. 358.
In an action against a national
bank, as gratuitous bailee of property
which had been stolen by burglars, a
witness, who had testified to convei^
sations with defendant's president, in
which he notified him of attempts by
burglars to enter the bank, and of in-
dications of an intended robbery, and
urged upon him the necessity of
greater care, was permitted to testify,
under objection, that the president,
after the burglary, requested him not
1
Fairlee v. Hastings, 10 Ves. 125 ;
Stiles V. Danville, 42 Vt. 282 ; Lob-
dell V . Baker, 1 Mete. (Mass.) 193 ;
Stiles V. R. R. 8 Mete. 44; Lowell v.
Winchester, 8 Allen, 109; Hubbard
V. Elmer, 7 Wend. 446 ; Jex v. Board
of Education, 1 Hun (N. Y.), 159;
Stewartson v. Watts, 8 Watts, 392 ;
Waterman v. Peet, 11 111. 648; Chic.
&c. R. R. t. Lee, 60 111. 501 ; Chic, B.
& Q. R. R. V. Riddle, 60 111. 534 ;
Rowell V. Klein, 44 Ind. 290; Pollard
V. R. R. 7 Bush, 597 ; Williams v.
Williams, 11 Ired. L. 281; Pinnix v.
McAdoo, 68 N. C. 56; McComb v. E.
R. 70 N. C. 178; Raiford w. French,
11 Rich. (S. C.) 36 7; Colquitt v.
Thomas, 8 Ga. 268; East. B. v. Tay-
lor, 41 Ala. 93; Reynolds v. Rowley,
2 La. An. 890; Caldwell v. Garner,
31 Mo. 131 ; Levy v. Mitchell, 6
Ark. 138; Greer v. Higgins, 8 Kans.
519.
" The opinion of an agent, based
on past occurrences, is never to be
received as an admission of his prin-
cipals ; and this is doubly true when
the agent is not a party to those oc-
currences." Strong, J., Ins. Co. v.
Mahone, 21 Wall. 157, citing Packet
Co. V. Clough, 20 Wall. 528; Hough
V. Doyle, 4 Eawle, 291; Hubbard v.
Elmer,'? Wend. 446; Stiles v. E. R.
8 Mete. 46 ; Clark v. Baker, 2 Whart.
340. See, to same effect, Tuggle v.
E. R. 62 Mo. 425; Ashmore v. Tow-
ing Co. 38 N. J. L. 13.
"It is a well established rule that
the declarations of an agent, made at
the time of the particular transaction,
412
CHAP. XUI.J
ADMISSIONS BY AGENTS.
[§ 1181.
back on the general rule, that non-contractual admissions (in
other words, admissions not forming part of the consideration of
a contract) are not admissible unless part of the res gestae, or
unless they are made with the special authority of the principal,
or by his general representatiye.^
§ 1181. A servant, as distinguished from an agent, as is
elsewhere shown, ^ is regarded by the law as so far a mechan-
to mention such conversations. It
was held by the court of appeals that
the admission was erroneous, as the
president's acts and declarations, after
the transaction, and when not acting
within the limit of his authority, were
not binding upon, and could not af-
fect, the defendant." First Nat. Bank
of Lyons v. Ocean Nat. Bank, 60 N.
Y. 279. Van Leuven v. First Nat.
Bank, 54 N. ¥.671, distinguished.
» See supra, §§ 1173-5.
^ Fairlie v. Hastings, 10 Ves. 123 ;
Garth v. Howard, 8 Bing. 451; Lang-
horn V. AUnut, 4 Taunt. 519; Mor-
timer V. McCallan, 6 M. & W. 58 ;
Great W. R. R. v. WiUis, 18 C.
B. (N. S.) 748; Allen v. Denstone, 8
C. & P. 760; Polleys v. Ins. Co. 14
Mete. 141 ; Robinson v. R. R. 7 Gray,
92; Wakefield v. R. R. 117 Mass.
544; Anderson v. R. R. 54 N. Y. 334;
Price V. R. R. 31 N. J. L. 229; Hynds
V. Hays, 25 Ind. 31; Lafayette R. R.
w. Ehman, 30 Ind. 83; Bennett v.
Holmes, 32 Ind. 108; Belief ontaine R.
R. V. Hunter, 33 Ind. 335 ; Dicken-
son V. Colter, 45 Ind. 445; Pittsburg
R. R. V. Theobald, 51 Ind. 246 ; Mo-
bile R. R. V. Ashcraft, 48 Ala. 15 ;
Price V. Thornton, 10 Mo. 135; Ready
V. Highland Mary, 20 Mo. 264.
" The general rule on this subject
is very clearly and succinctly stated
by Mr. Justice Rogers, in Hough v.
Doyle, 4 Rawle, 294. ' When it is
proved that one is the agetit of an-
other, whatever an agent does, or says,
or writes, in the making of a contract,
as agent, is admissible against the
principal, because it is part of the
contract he made for his principal,
and which, therefore, binds him; but
it is not admissible as the agent's ac-
count of what passes. For example,
the declaration of a servant employed
to sell a horse is evidence to charge
the master with warranty, if made at
the time of the sale; if made at any
other time, the facts must be proved
by the servant himself. The admis-
sions of an agent, not made at the
time of the transaction, but subse-
quently, are not evidence. Thus, the
letters of an agent to his principal,
containing a narrative of the transac-
tion in which he had been employed,
are not admissible in evidence against
the principal.' It would be a mere
affectation of learning to cite the long
array of cases from Hannay v. Stew-
art, 6 Watts, 487, to Fawcett v. Bigley,
9 P. F. Smith, 411, in which this rule
has been reiterated and applied. The
declarations in question were certainly
admissible, as those of an agent of a
common carrier in the course of his
employment as such, but not to prove
a prior special contract. And, indeed,
admitting that these declarations could
be used for such purpose, the infer-
ence attempted to be drawn from them
was a very strained one. This sus-
tains the first, third, and fifth assign-
ments." Sharswood, J,, Pennsylvania
Raihoad Co. v. Plank Road Co. 71
Penn. St. 355.
s Wharton on Agency, § 536.
413
§ 1183.] THE LAW OF EVIDENCE. [BOOK III.
ical extension of his master, that whatever he does, in the dis-
Admis- charge of his master's orders, is so much his master's
servant* are action, that for it his master is suable, not himself,
subject to Hence the acts and words of a servant, so far as thev
same re- . , ^^
striotiona. are incidental to and explanatory of his action when
executing his master's orders, are evidence against his master.^
Thus when the soundness of a cable is questioned in an action
against the owners of a vessel for damage caused by the breaking
of the cable, the declarations of the crew, when paying out the
cable, may be put in evidence ; ^ and so the acts and remarks
of a workman, while engaged in manufacturing an article alleged
to be pirated, are admissible against his master, in a suit for in-
fringing the patent.^
§ 1182. Yet we must remember that a servant moves within a
limited orbit, one far more limited than that of an agent ; and
that consequently the admissions of a servant are more jealously
guarded than are those of an agent. An agent is authorized to
exercise discretion ; when a servant is authorized to exercise dis-
cretion, then he ceases to be a servant and becomes an agent.
Those dealing with a mere servant, knowing him to be such,
know that except in the immediate discharge of a mechanical
duty, he is not authorized to bind his master by his admissions.
Hence, ordinarily, a master, except within such range, is not so
bound.* But where a servant is made an agent for a particular
purpose (e. g. where a porter or other servant is employed to
represent a railroad company in all matters concerning baggage),
then his declarations may be admissible against his employer.^
§ 1183. As declarations of an agent are only admissible when
Agency *^® agency is proved, to permit the proving of the
SbH bed ^" agency by proving the declarations of the agent would
by proof be assuming without proof that which is a prerequisite
to the admissibility of the declarations. Hence the
1 Wharton on Agency, § 159 e« Anderson v. K. R. 54 N. Y. 334
$eq. ; Weeks v. Barron, 38 Vt. 420 ; Penns. K. R. v. Books, 57 Penn. St.
Black V. R. R. 45 Barb. 40. 839 | Mobile R. R. v. Ashcraft, 48
" Reed v. Dick, 8 Watts, 479. Ala. 15.
8 Aikin v. Bemis, 3 Wood. & M. 348. « Morse v. R. R. 6 Gray, 450; Lane
* Robinson v. R. R. 7 Gray, 92; v. R. R. 112 Mass. 465; Cortland v.
McGregor v. Wait, 10 Gray, 72 ; Herkimer Co. 44 N. Y. 22. See Ma-
Wakefield v. R. R. 117 Mass. 544 ; lecek v. R. R. 57 Mo. 17.
414
CHAP. XIII.]
ADMISSIONS BY ATTORNEYS.
[§ 1184.
rule is settled that such declarations cannot be received until
there be proof of the agency aliunde.^ Nor can an agent's dec-
larations be received, on behalf of the principal, to prove that
a third party was not also the principal's agent.^ An error in
this respect, however, is cured, if after the declarations are received
the agency is proved satisfactorily by independent evidence.^
§ 1184. As a matter of practice, an attorney, by admissions
made during the trial of a case, or in correspondence Attorney's
relating to such trial, may conclude his client, in cases admissions
, r, . . . . bind client.
in which, on the faith of such admissions, reciprocal
admissions are made on the other side. Such admissions, part
of a mutual plan for the trial of the case, are irrevocable by
the client, except in cases of fraud or of gross mistake.* It
' Fairlee v. Hastings, 10 Ves. 126;
Musseyt). Beecher, 3 Cush. 517; Brig-
ham D.Peters, 1 Gray, 139 ; McGregor
V. Wait, 10 Gray, 72; Haney v. Don-
nelly, 1 2 Gray, 361 ; Fitoh v. Chapman,
10 Conn. 8; Jaeger v. Kelley, 52 N. Y.
274; Hill V. K. R. 63 N. Y. 101;
Clark V. Baker, 2 Whart. 340; Cham-
bers V. Davis, 3 Wly^rt. 40 ; Robeson
V. Nav. Co. 3 Grant (Penn.), 186
Jordan v. Stewart, 23 Penn. St. 244
Williams o. Davis, 69 Penn. St. 21
Grim v. Bonnell, 78 Penn. St. 152
Rosenstock v. Tormey, 32 Md. 169 ,
Farmer v. Lewis, 1 Bush, 66; Royal
V. Sprinkle, i Jones L. 505 ; Grandy
V. Ferebee, 68 K. C. 356 ; Stenhouse
V. R. R. 70 N. C. 542 ; Mapp v. Phil-
lips, 32 Ga. 72 ; Wilcoxen v. Boha-
nan, 53 Ga. 219; Craighead v. Wells,
21 Mo. 404; Coon v. Gurley, 49 Ind.
199; Sypher v. Savery, 39 Iowa, 258;
Streeter o. Poor, 4 Kans. 412; Howe
Machine Co. v. Clark, 15 Kans. 492.
"' An agent is competent to prove
his own authority when it is by parol,
hut his declarations in pais are not
proof of it; and though they become
eviSence, as parts of the res gestae, if
made in the conduct of the business
intrusted to him, yet other evidence
must first establish his authority to
speak before his words shall bind his
principal. Jordan v. Stewart, 11 Har-
ris, 244. Agency cannot be proved
by the declarations of the agent with-
out oath, and in the absence of the
party to be affected by them.' Clark
V. Baker, 2 Wharton, 340; Chambers
V. Davis, 3 Wharton, 44." Wood-
ward, J., Grim V. Bonnell, 78 Penn.
St. 152.
2 Short Mountain Coal Co. v.
Hardy, 114 Mass. 197.
8 Rowell V. Klein, 44 Ind. 291.
See Pinnix v. McAdoo, 68 N. C. 56.
* Stephen's Ev. art. 17; Langley v.
Oxford, 1 M. & W. 508; Elton v.
Larkins, 1 M. & Rob. 196; 5 C. & P.
385 ; Doe v. Bird, 7 C. & P. 6 ; Mar-
shall V. Cliffs, 4 Camp. 133; Pike v.
Emerson, 5 N. H. 393 ; Burbahk v.
Ins. Co. 24 N. H. 550 ; Smith v.
Hollister, 32 Vt. 695 ; Lewis v. Sum-
ner, 13 Mete. 269 ; Herbert v. Alex-
ander, 2 Call, 499 ; Daniel v. Ray, 1
Hill, S. C. 32 ; Smith v. Bossard, 2
McCord Ch. 406 ; Wilson v. Spring,
64 111. 18 ; Lacoste v. Robert, 11 La.
An. 33 ; Kohn v. Marsh, 3 Robt. La.
48 ; Smith u. MuUiken, 2 Minn. 319.
See fully Whart. on Agency, § 585 et
seq.
" It has been repeatedly held that
415
§ 1184.]
THE LAW OF EVIDENCE.
[book III.
is otherwise, however, with non-contractual admissions of the
attorney, not accepted as part of the mutual arrangements for
the trial of the case.^ Such admissions may be rebutted ; but
nevertheless they constitute primd facie evidence, or, in other
words, they relieve, at the first instance, the opposing party from
the burden of proving that which they admit, supposing the
authority of the attorney to be first proved.^ Thus an attorney,
by admitting the signature to a bond, relieves the opposing party
from proving such signature ; ^ by calling upon the opposite side
to produce a bill "accepted by A." (the client) admits A.'s
acceptance ; * by appearing for parties as owners of a ship ad-
mits their joint ownership.^ And so on a second trial, a written
agreement admitting certain facts signed by the counsel when
the first trial opened, has been regarded as dispensing primd
facie with the proof of such facts.' And a written admission to
an auditor, to be used by the auditor in making up his report, is
■ an attorney may admit facts on the
trial, or, in pleading, waive a right of
appeal, review, notice, &c., and con-
fess a judgment. Talbot v. McGee, 4
Monr. 377; Pike ». Emerson, 5 N. H.
393; Alton v. Gilmanton, 2 Ibid.
520.
"In the case of Herbert v. Alex-
ander 2 Call Va. R. 499, it was held
that an attorney represents his clients,
and in court may do such acts as his
client might do himself.
' ' In tte case of Pierce v. Perkins,
2 Dev. Eq. 250, it was held that a
party after decree cannot dispute the
authority of his attorney to bind him
in any agreement made in conducting
and determining the suit.
" In Smith v. Bossard, 2 McC. Ch.
406, it was held the attorney might
bind the client by referring the mat-
ter in dispute to accountants without
the knowledge of his client, and his
assent to their report will be binding.
" From these adjudged cases, as well
as upon principle, it is apparent that
such admissions as were made on the
trial in this case must bind the party,
416
unless fraudulently and collusively
made. Nor can it matter that one of
the parties is a feme covert. Having
committed her rights to an attorney,
he must be held to have power to do
the same acts oh the trial which she
could perform in person, and no one
can controvert her power to admit
that a particular sum was due on a
mortgage executed by her, so as to
be binding." "Walker J.,^ Wilson b.
Spring, 64 111. 18.
1 Young V. Wright, 1 Camp. 141 ;
Floyd V. Hamilton, 33 Ala. 235.
" Moulton V. Bowker, 115 Mass. 86;
Bathgate v. Haskin, 59 N. Y. 533 ;
Thomas v. Kinsey, 8 Ga. 421 ; Mc-
Lean V. Clark, 47 Ga. 24; Cassels v.
Dsry, 51 Ga. 621 ; McRea v. Bank,
16 Ala. 755; People e. Garcia, 25
Cal. 531.
= Milward v. Temple, 1 Camp. 375.
* Holt V. Squire, Ey. & M. 282.
6 Marshall v. Cliff, 4 Camp. 133.
« Van Wart w. WoUey, Ry. & M. 4;
Truby V. Seybert, 12 Penn. St. 101;
Merchants' Bk. v. Marine Bk. 3 Gill,
98.
CHAP. XIII.]
ADMISSIONS BY ATTOENEY.
[§ 1186.
operative against the party in future proceedings in same case.^
But mere conversational admissions by an attorney, thrown off
collaterally, cannot bind his client, the attorney being a special,
not a general agent ; ^ nor are such admissions receivable when
made tentatively, for purposes of compromise.^ So oral and less
formal admissions by counsel at a former trial are not evidence
on a subsequent trial.* And in any view, an attorney's power
thus to admit ceases when he withdraws from the case.^
§ 1185. An attorney's admission, when duly au- Attorney's
thorized, is to be treated as if made by the party him-
self.® Hence such admission may subsequently be
used against such party by a stranger.^
§ 1186. It must be remembered that in every trial there are
facts with the proof of which counsel may tacitly agree implied
to dispense. When a case is tried on this principle of counsel*
and is closed, such facts cannot ordinarily be disputed {'/"u'la?""
by the party by whom they have been tacitly ad- «ase.
mitted.^
admissions
on trial
may be
used by
strangers.
' Holderness v. Baker, 44 N. H.
414.
2 Doe V. Richards, 2 C. & K. 216 ;
Patch V. Lyon, 9 Q. B. 147 ; Watson
». King, 3 C. B. 608.
"Admission of an attorney, in or-
der to bind his client, must be distinct
and formal, and made for the express
purpose of dispensing with formal
proof of a fact at the trial. Those
which occur in mere conversations,
though they relate to the matters in
issue in the case, cannot be received
in evidence against the client." 1
Greenleaf's Ev. § 186; Beck, J.,
Treadway v. The S. C. & St. P. P. K.
Co. 40 Iowa, 526.
' Saunders v. McCarthy, 8 Allen,
42. Supra, § 1090.
* CoUedge v. Horn, 3 Bing. 119;
R. V. Coyle, 7 Cox C. C. 74; Wilkins
V. Stidger, 22 Cal. 231.
' Janeway v. Skerritt, 30 N. J. L.
97.
' See supra, § 836 et seq.
' Ibid. In Truby v. Seybert, 12
VOL. 11. 27
Penn. St. 101, as explained in Mc-
Dermott v. Hoffman, 70 Penn. St.
32, the point ruled was, " that if a
party, or his counsel in his defence,
make a concession of a fact within his
own knowledge, which is pertinent in
another issue with another plaintiff,
the record of the first suit as intro-
ductory to evidence of the conces-
sion, and the concession itself, though
proved by parol, are good evidence
for the new plaintiff; and what is said
by Mr. Justice Bell in that case is
certainly true, that a record between
other parties may be admissible in
evidence whenever it contains a sol-
emn admission or judicial declaration
by any such parties in regard to the
existence of any particular fact."
8 Child V. Boe, 1 E. 8e B. 279; Stra-
cy V. Blake, 1 M. & W. 168.
In the case of Colledge v. Horn, 3
Bing. 119 ; S. C. 10 Moore, 431 ;
Taylor's Ev. § 709, on a second trial
the defendant endeavored to avoid
part of his opponent's demand, by
417
§ 1189.]
THE LAW OF EVIDENCE.
[book III.
§ 1187. The employment of an attorney, like the employment
Attorne 's °^ ^^ agent, Cannot be proved by his own admission ;
authority his admissions cannot be received, unless he is shown to
proved ali- be an attorney aliunde.^ The employment must be
proved to include the particular suit as to which ad-
mission is made.^
§ 1188. The admissions made by an attorney's clerk,
in performance of his ordinary office duties, are treated
as tantamount to the admissions of the attorney him-
self.* The power of attorneys and their assistants, in
this relation, is discussed at large in another work.*
1189. So far as concerns matters of law, no error of counsel
Attorney's can prejudice the client if such error is recalled before
judgment. The court, in fact, as has been- seen, can
on its own motion correct defective law presented to it
by counsel.^ So far as concerns errors in fact, the
statements of counsel, when made in the client's presence, and as
Admis-
sions of at-
torney's
clerk
equivalent
to admis-
sions of
attornev.
admissions
may be re
called be-
fore judg-
ment-
proving an admission, which, on the
former trial, had been made in the
plaintiff's presence by the plaintiflPs
counsel, in his opening address to the
jury. The judge rejected this evi-
dence ; and although the court above
subsequently granted a new trial, they
did so, not on the ground that the rul-
ing was wrong, but because the facts
were not sufficiently before them.
Mr. Justice Burrough declared that if
the plaintiff was in court, and heard
what his counsel said, and made no
objection, he was bound by the state-
ment ; but the other learned judges,
it is said, forbore giving any opin-
ion on a question which they held to
be one of great nicety. See Haller
V. Worman, 2 F. & F. 165; R. v.
Coyle, 7 Cox C. C. 74. As to the
authority of counsel to bind a client
by a compromise or agreement made
at the trial, see Swinfen ». Swinfen,
25 L. J. C. P. 303 ; 26 Ibid. 97 ; 1
Com. B. N. S. 364, S. C. ; 27 L. J.
Ch. 85, coram Romilly, M. R. S. C;
24 Beav. 549, S. C; Judg. of M. R.
418
afiPd by Lds. Js. 2 De Gex & J. 38 j
27 L. J. Ch. 491, 5. C; Chambers ti.
Mason, 5 Com. B. N. S. 59; Swinfen «.
Ld. Chelmsford, 5 H. & N. 890; Prist-
wick I'. Foley, 34 L. J. C. P. 189; S. C.
nom. Prestwick v. Foley, 18 Com. B.
N. S. 806 ; Strauss v. Francis, L. R.
1 Q. B. 379 ; S. C. 7 B. & S. 365,
and cases cited in Whart. on Agency,
§ 589 et seq.
^ Supra, § 1183; Burghart v. An-
gerstein, 6 C. & P. 645; Pope v. An-
drews, 9 C. & P. 564; Wagstafl'i;.
Wilson, 4 B. & Ad. 339.
" Whart. on Agency, § 582 ; Wag-
staff V. Wilson, 4 B. & Ad. 339 ; Mof-
fit V. Witherspoon, 10 Ired. L. 185.
« Griffiths V. Williams, 1 T. R. 710;
Truelove v. Burton, 9 Moore, 64 ; Tay-
lor V. Williams, 2 B. & Ad. 845;
Standage v. Creighton, 5 C. & P. 406;
Power V. Kent, 1 Cow. 211 ; Birk-
beck V. Stafford, 14 Abb. (N. Y.)
285 ; S. C. 23 How. Pr. 236.
* Whart. on Agency, § 579.
6 Supra, §§276, 283 ; Weber, Hefi-
ter's ed. 66.
CHAP. XIII.] ADMISSIONS BY ATTORNEY. [§ 1191.
his representative, are, by the Roman law, treated as if made by
the client himself. " Ea quae advocati praesentibus his, quorum
causae aguntur, allegant, perinde habenda sunt, ac si ab ipsis
dominis litium proferantur.''^ But this is accepted with the qual-
ification that the client is entitled to recall the admission at any
time before judgment entered, if it should appear thatthe error
is not traceable to any wrongful intent of his own, and that the
opposite party is not prejudiced thereby .2 It is otherwise when,
in consequence of the attorney's admissions, the position of the
opposite party has been altered so that it would be detrimental
to the latter for the admission to be revoked.^
§ 1190. A party who, when applied to for information as to a
negotiation, says, " Go to R., who represents me in this Referee's
matter," is bound by R.'s representations, within the bfnd^'rin"-
scope of the reference, to the same effect as if R. was <='P*'-
his duly appointed agent for the purpose.* This is eminently
the case where one of several associates is constituted the mouth-
piece of a firm for the purpose of specially answering questions.^
On the same principle parties may bind themselves by the opin-
ion of counsel acting as referee.^ Such agreement to refer may
be inferred from action as well as from words.'^
§ 1191. If, in an agreement to refer, the parties mutually en-
gage to be bound by the decision of the referee, the doctrine
of estoppel would preclude a further agitation of the question ; ^
but it is otherwise when there is simply a loose engagement
' L. 1, C. de error advoc. Cokely, 5 Ind. 164 ; Hudspeth v. Al-
" See Mitchells. Gotten, 3 Fla. 186, len, 26 Ind. 165 ; Delesline v. Green-
and cases cited supra, § 1184. land, 1 Bay, 468 ; McNeeley v. Hun-
« See supra, § 1085. ton, 24 Mo. 281.
* Hood V. Reeve, 3 C. & P. 532 ; « Shaw v. Stone, 1 Cush. 228.
Williams v. Innes, 1 Camp. 234; Dan- « Sybray v. White, 1 M. & W. 435;
iel 1). Pitt, 6 Esp. 74; Allen 0. Killin- Downs v. Cooper, 2 Q. B. 256 ; Price
ger, 8 Wall. 480; Chapman v. Twitch- v. Hollis, 1 M. & Sel. 105.
37 Me. 59; Bailey v. Blanchard, ' Gardner v. Moult, 10 A. & E.
62Me. 168; Folsom?;. Batchelder, 22 464; Pritchard v. Bagshawe, 11 C.
N. H. 47; Tuttle V. Brown, 4 Gray, B. 459; Boileau v. Rutlin, 2 Exch. R.
457; Chadsey v. Greene, 24 Conn. 562; 675.
Duval V. Covenhoven, 4 Wend. 561 ; ' See Males v. Lowenstein, 10 Ohio
Bedell ». Ins. Co. 3 Bosw. 147 ; Sands St. 512 ; Burrows v. Guthrie, 61 111.
K. Shoemaker, 4 Abb. (N. Y.) App. 70; Trustees v. Cokely, 5 Ind. 164;
149; Wehle v. Spelman, 1 Hun, 634; Reynolds r. Roebuck, 37 Ala. 408.
S. C. 4 Thomp. & C. 648; Trustees v.
419
§ 1192.] THE LAW OF EVIDENCE. [BOOK ffl.
by one party to bind himself if the other should determine a
certain question in a particular way ; for an engagement of this
kind is open to attack on ground of misconception, mistake, or
fraud.^ In any view, the agreement to refer must be clearly
shown,^ and the answer of the referee must be within the scope
of the reference.^ A mere reference by a party, in answer to in-
quiries as to his character, to the business men of the place he
lives in, will not be sufficient to justify the declarations of such
business men being put in evidence against him.*
VII. ADMISSIONS BY PARTNERS AND^ PERSONS JOINTLY INTERESTED.
§ 1192. When several persons are jointly interested in a com-
Admis- mon enterprise, the admissions of one of them, as a
peSons party to the record, are receivable in evidence against
terestid re- ^^^ Others, as well as against himself, if such declara-
ceivabie tions Were made when the declarant was engaged in
against _ _ o o
each other, carrying on the enterprise. Each party becomes the
agent of the others, privileged to bind the others, under the lim-
itation heretofore expressed as to agency.* This liability ex-
tends to non-contractual as well as to contractual admissions.
Thus where the obligee of a bond filed a bill against two joint
and several obligors, alleging that the bond had been delivered
up to one of them by mistake, and praying that he, the obligee,
might recover the amount due on it, an admission by the party
to whom the bond was given up, that it had been delivered to
her by mistake, was held to be evidence against the coobligor,
though the joint answer of the defendants had traversed the
1 Garnet v. Bell, 3 Stark. R. 160 ; Colt v. Eves, 12 Conn. 243 ; Grip-
though see L\oyi v. Willan, 1 Esp. pen v. Morss, 49 N. Y. 63; Ches-
178. ter V. Dickerson, 54 N. Y. 1; Trego
2 Barnard v. Macy, 11 Ind. 536. v, Lewis, 58 Penn. St. 463 ; Walker
" Duvall 0. Covenhoven, 4 Wend. v. Pierce, 21 Grat. 722; Dickinson v.
561. Clarke, 5 W. Va. 280; Patton v. Ohio,
* Rosenbury v. Angell, 6 Mich. 6 Oh. St. 467; Dickerson v. Turner,
508. 12 Ind. 223; Falkner v. Leith, 15 Ala.
' Kemble v. Farren, 3 C. & P. 623; 9; Stewart v. State, 26 Ala. 44 ; Mask
American Fur Co. v. U. S. 2 Pet. 358; v. State, 32 Miss. 405 ; Armstrong v.
State V. Soper, 16 Me. 293; Davis v. ' Farrar, 8 Mo. 627; State v. Ross, 29
Keene, 28 Me. 69; State v. Thibeau, Mo. 32; Irby v. Brigham, 9 Humph.
30 Vt. 100; Martin v. Root, 17 Mass. 750; State v. Hogan, 8 La. An. 714;
222; Com. v. Brown, 14 Gray, 419; Tuttle v. Turner, 28 Tex. 759.
420
CHAP. XIII.]
ADMISSIONS BY ASSOCIATES.
[§ 1194.
allegation as to mistake, and, simply admitting the deliyery of
the bond, had stated that the party to' whom it was given up
had destroj'ed it.^ So, also, statements made by one joint pro-
prietor of a theatre have been admitted against his co-propri-
etors.^
§ 1193. It is scarcely necessary to add that such declara-
tions, to be admissible, must relate to the matter of joint busi-
ness ; mere community of interest will not be enough to sustain
such admissibility.^ Thus where a member of a firm of ma-
chinists, in Baltimore, engaged in an enterprise for the run-
ning of an ice and tow-boat, his declarations, in this relation,
were held not admissible -against his partners in the machine
business.* But acts and declarations of tenants in common in
each other's presence are admissible to settle their respective
rights.^
§ 1194. This is eminently the case in all suits brought for or
against partners, wherever a settled partnership is first g^ „{
established,^ though such admissions must be as to mat- partners.
' Crosse V. Bedingfield, 12 Sim. 35.
'i Kemble v. Farren, 3 C. & P. 623.
" The declarations of a party to the
suit as to the existence of a partner-
ship are unquestionably competent to
prove him to have been a member of
the alleged firm, and who were ad-
mitted by him to have been the per-
sons composing it. Such declarations
are not, however, competent evidence
against the others, and it is the duty
of the court so to instruct the jury.
Taylor v. Henderson, 17 S. & R. 453
Johnston v. Warden, 3 Watts, lOl
Haughey v. Strickler, 2 W. & S. 411_
Lenhart v. Allen, 8 Casey, 312 ; Bow-
ers V. Still, 13 Wright, 65 ; Crossgrove
V. Himmelrich, 4 P. F. Smith, 203.
The same rule has been applied to the
admissions of a defendant not served
with process, and not, therefore; a
party to the issue. Porter v. Wilson,
1 Harris, 641." Sharswood, J., Ed-
wards V. Tracy, 62 Penn. St. 378.
» 1 Phil. Ev. 378; Brannon v. Hur-
sell, 112 Mass. 63 ; Elliott v. Dudley,
19 Barb. 326 ; Edwards v. Tracy, 62
Penn. St. 378; White v. Gibson, 11
Ired. L. 283 ; South. Life Ins. Co. v.
Wilkinson, 53 Ga. 545, and cases
cited infra, § 1199.
* Wells V. Turner, 16 Md. 133.
6 Crippen v. Morss, 49 N. Y. 63.
» Rapp V. Latham, 2 B. & Aid. 795;
Fox V. Clifton, 6 Bing. 792; Latch v.
Wedlake, 11 Ad. & E. 959 ; NichoUs
V. Dowding, 1 Stark. R. 81 ; R. v.
Hardwick, 11 East, 689; Sandilands
0. March, 2 B. & Aid. 673; Lincoln
V. Claflin, 7 Wall. 132 ; Bank U. S. a.
Lyman, 20 Vt. 666; Barrett v. Rus-
sell, 45 Vt. 43 ; Smith v. Collins, 115
Mass. 388 ; Gandolfo v. Appleton, 40
N. Y. 533; Moers v. Martens, 17 How.
Pr. 280 ; Adams v. Funk, 53 111. 219 ;
Bennett v. Holmes, 32 Ind. 108 ; State
V. Nash, 10 Iowa, 81; Peck u. Lusk,
38 Iowa, 93 ; People v. Pitcher, 15
Mich. 397; McFadyen </. Harrington,
67 N. C. 29 ; Johnson v. State, 29
Ala. 62 ; Cady v. Kyle, 47 Mo. 346 ;
Oldham v. Bentley, 6 B. Monr. 428.
421
§ 1196.]
THE LAW OF EVIDENCE.
[book in.
ters within the scope of the partnership,^ and cannot be received
to prove the partnership.^ Even the admissions of a silent part-
ner, not made a party in the case, may be thus used against his
associates.^
§ 1195. By Lord Tenterden's Act of 1828 (adopted in several
of the United States) one partner cannot, even by a
written acknowledgment of a debt, either during the
partnership, or after its dissolution, take the case out
of the statute of limitations, as against the other mem-
bers of the firm.*
§ 1196. After dissolution of the partnership, the power to
bind by admissions ceases,^ though it may be kept
alive by special agreement.® And it has been further
ruled that a self-disserving admission, by a former part-
ner, after the dissolution of the firm, as to a firm transaction
which is still unclosed, is admissible as primd facie evidence
As to ac-
knowledg-
ment to
take case
out of
statute of
limitations.
Power
ceases at
dissolution
Where A., B., and C. sue D. as partners,
upon an alleged contract for the ship-
ment of bark, an admission by A.,
that the bark was his exclusive prop-
erty, and not that of the firm, has been
held receivable as against B. and C.
Lucas V. De La Cour, 1 M. & S.
249.
I Ibid. ; Wells v. Turner, 16 Md.
133 ; Hahn v. Savings Co. 50 111.
436.
a Ibid.; infra, § 1200; Edwards v.
Tracy, 62 Penn. St. 378; Cross v.
Langley, 50 Ala. 8.
' Weed V. Kellogg, 6 McLean, 44;
Fickett V. Swift, 41 Me. 65 ; Webster
V. Stearns, 44 N. H. 498 ; Odiorne v.
Maxcy, 15 Mass. 89 ; Munson v.
Wickwire, 21 Conn. 513; Chester v.
Dickerson, 54 N. Y. I ; Folk v. Wil-
son, 21 Md. 538; Holmes v. Budd, 11
Iowa, 186; Fail v. Mc Arthur, 31 Ala.
26 ; American Iron Co. v. Evans, 27
Mo. 552 ; Mamlock v. White, 20 Cal.
698.
^ Taylor's Agency, §§ 537, 675.
* Kilgouru. Finlyson, 1 H. Bl. 155;
422
Parker v. Merrill, 6 Greenl. 41 ; Ba-
ker V. Stackpoole, 9 Cow. 420 ; Bank
of Vergennes v. Cameron, 7 Barb.
143 ; Williams v. Manning, 41 How.
(N. Y.) Pr. 454; Hogg v. Orgill, 34
Penn. St. 344 ; Miller v. Neimerick,
19 III. 172; Winslow v. Newlan, 45
111. 145 ; Pennoyer v. David, 8 Mich.
407; Daniel v. Nelson, 10 B. Monr.
316 ; Morgan v. Hubbard, 66 N. C.
394; Johnson v. Marsh, 2 La. An.
772; Dowzelot «. Rawlings, 58 Mo.
75; Flowers v. Helm, 29 Mo. 324.
Infra, § 1202.
" While the partnership continues,
the declarations or admissions of each
of the partners made in respect to the
business of the firm will bind it. But,
upon the occurrence of a dissolution,
this power to bind the firm, by either
acts or declarations, conies to an end."
Dowzelot V. Rawlings, 58 Mo. 77 ;
Sherwood, J. See Shelmire's Ap-
peal, 70 Penn. St. 285.
° Burton t>. Issit, 5 B. & Aid. 267;
Ide V. Ingraham, 5 Gray, 106.
CHAP. XIII.] ADMISSIONS BY ASSOCIATES. [§ 1199.
against the firm ; ^ though if the partner ceases to have any in-
terest in the result, the reason for such admission fails.^
Entries in the partnership books by one partner are admissi-
ble, after the partnership is closed, to charge a copartner, -when
the latter had opportunity to examine the books at the time of
entry, and did not dissent.^
§ 1197. In a suit by joint contractors, the admissions of one
of their number who acts for the others are receivable „
1 • J! 1 A • • . So as to
as the declarations of all ; * and hence in a suit against joint con-
parties who have agreed to buy a boat, the admissions
of one, in the scope of the business, bind the others.^ The ad-
missions of a joint covenanter, no matter how small may be his
interest,^ are by the same reasoning admissible against his asso-
ciates.
§ 1198. Admissibility in the cases we have just enumerated
is not conditioned upon the declarant being summoned persons in-
as a party to the suit in which his declarations are f,®?^'®?'
offered. If, at the time of the declarations, he were parties to
1 . ..,.,»! suit, may
engaged in a common enterprise with either ot the affect such
parties to the suit, his declarations are admissible, their ad-
^when within the scope of the joint interest, against ""s^'""'-
them.''
§ 1199. There must, however, in order to prejudice parties by
each other's declarations, be such a joinder as makes Mere com-
' _ _ •■ . . munity of
them each other's representatives in the enterprise, interest not
The mere possession of common interests does not im- extend
pose this reciprocal liability.^ Thus the admission of ;"".
1 Pritchard v. Draper, 1 Rus. & M. * Bank U. S. v. Lyman, 20 Vt.
191; Pierce v. Wood, 23 N. H. 519; 666.
Loomis V. Loomis, 26 Vt. 198 ; Bridge ^ Rotan v. Nichols, 22 Ark. 244.
i>. Gray, 14 Pick. 65 ; Hitt v. Allen, 13 " Walling v. Rosevelt, 16 N. J. L.
111. 592; Fisher v. Tucker, 1 McCord 41.
Ch. 169; Cochran r. Cunningham, 16 ' Whitcomb v. Whiting, 2 Dougl.
Ala. 448; Curry jj. Kurtz, 33 Miss. 24; 652; Wood v. Braddick, 1 Taunt.
Nalle V. Gates, 20 Tex. 315. 104 ; Weed v. Kellogg, 6 McLean,
' Taylor's Evidence, citing Parker 44 ; Bucknam v. Barnum, 15 Conn.
V. Morrell, 2 Phill. 464; S. C. 2 C. & 68, and cases cited supra, § 1192.
Kir. 599; Gillinghan v. Tebbetts, 33 « Fox v. Waters, 12 Ad. & E. 43;
Me. 360; Coppage v. Barnett, 34 Scholey u. Walton, 12 M. & W. 514;
Miss. 621. TuUock v. Dunn, R. &M. 416 ; Bran-
' Bunnell v. Henderson, 23 N. J. non v. Hursell, 112 Mass. 63; Elliott
Eq. 174. Supra, § 1131-3. v. Dudley, 19 Barb. 326; Slaymaker
423
§ 1199 a.]
THE LAW OF EVIDENCE.
[book m.
the receipt of money by one of several trustees, joint defend-
ants, but not personally liable, has been held not receivable to
charge the other trustees,^ nor the admission of one executor
to prove a debt against his co-executors ; ^ nor the admission
of one of several part-owners or tenants in common against
his associates ; ^ nor for such purpose the admission by one of
several members of a board of public officers;* nor by one of
several underwriters on the same policy,^ nor by one of several
codistributees or co-devisees against another, even though the
declarant should be a party to the case.^
§ 1199 a. The admission of an heir cfinnot prejudice the ex-
Executors ecutor ; '^ nor that of a tenant for life, the remainder
man.^ Nor are the declarations of an administrator
admissible against a special administrator, appointed
to act during the administrator's absence from the
country.® Nor do the admissions of an executor bind a subse-
as against
executors ;
indorsers
against in-
dorsees.
V. Gundacker, 10 S. & R. 75 ; Wells
V. Turner, 16 Md. 133; Eakle v.
Clarke, 30 Md. 322 ; Chamberlain v.
Dow, 10 Mioh. 319 ; Wonderly v.
Booth, 19 Ind. 169; Blakeney v. Fer-
guson, 14 Ark. 641 ; Dickenson v.
Clarke, 5 W. Va. 280; McCune v. Mc-
Cune, 29 Mo. 117; McDermott v.
Mitchell, 47 Cal. 249. A bare trustee
cannot thus bind his principal. God-
bee V. Sapp, 53 Ga. 283.
1 Davies v. Ridge, 3 Esp. 101 ;
Walker v. Dunspaugh, 20 N. Y. 170;
Jex V. Board, 1 Hun, 157.
2 Fox V. Waters, 12 Ad. & E. 43;
TuUock V. Dunn, Ry. & M. 416; Scho-
ley u. Walton, 12 M. & W. 514; EI-
wood V. Deifendorf, 5 Barb. 398 ;
Hammon v. Huntley, 4 Cow. 498.
See Pease v. Phelps, 10 Conn. 62,
° Jaggers v. Binnings, 1 Stark. R.
64; McLellan v. Cox, 36 Me. 95;
Page V. Swanton, 39 Me. 400; Cuy-
ler V. McCartney, 40 N. Y. 228; Dan
V. Brown, 4 Cow. 483; Pier v. Duff,
63 Penn. St. 63.
424
* Lockwood V. Smith, 5 Day, 309;
Jex V. Board, 1 Hun, 157.
^ Lambert «. Smith, 1 Cranch C. C.
361.
' Shailer v. Bumpstead, 99 Mass.
130; Osgood V. Manhattan Co. 3 Cow.
612; Hauberger v. Root, 6 W. & S.
431 ; Clark v. Morrison, 25 Penn. St.
453 ; Titlow v. Titlow, 54 Penn. St.
222 ; Walkup v. Pratt, 5 Har. & J.
53; Forney v. Ferrell, 4 W. Ya. 729;
Thompson v. Thompson, 13 Ohio St.
356; Blakoy v. Blakey, 33 Ala. 616;
Prewett v. Coopwood, 30 Miss. 369;
Turner v. Belden, 9 Mo. 787; Ham-
bright V. Brockman, 59 Mo. 52.
' Osgood V. Manhattan Co. 3 Cow.
612; Dillard v. Dillard, 2 Strobh. 89;
though see Reagan v. Grim, 13 Penn.
St. 508, as to cases in which the ad-
ministrator is the mere representative
of the heirs.
« Hill V. Roderick, 4 Watts & S.
221 ; Pool ». Morris, 29 Ga. '374.
Supra, § 1161.
» Rush V. Peacock, 2 M. & Rob. 162.
See MoArthur v. Carrie, 32 Ala. 73.
CHAP. Xin.J ADMISSIONS BY ASSOCIATES. [§ 1200.
quent administrator de bonis non} Nor can the admission of an
indorser of negotiable paper prejudice another bond fide indor-
ser,2 though it is otherwise as to jpint indorsers.^ And where a
party takes negotiable paper that is overdue, or with notice, he is
open to be affected on trial by the admissions of his predecessors
in title,* provided such admissions were before the assignment.^
§ 1200. Yet we must remember that we cannot prove that a
party is jointly interested, by his own declarations, and
then introduce his declarations for the reason that he tions of
is jointly interested, even though he be joined in the cannot
record. This would be a petitio principn, equivalent to j'oint inter-
saying tliat his declarations are admissible because he f^^^^^ ^jg
is a party, and that he is a party because his declara- alleged
. , , X ./ partners.
tions are admissible. In order to introduce such dec-
larations, we must first prove to the satisfaction of the court
that the person making them was jointly interested in a common
enterprise with the parties against whom his declarations were
offered, and that his declarations were in the carrying on of this
common enterprise.^ This is familiar law when partnership is
sought to be proved by the admission of a putative partner ; "^
' Pease v. Phelps, 10 Conn. 62. Kimmell v. Geeting, 2 Grant (Penn.),
2 Russell V. Doyle, 15 Me. 112; 125 ; Benford u. Sanncr,40 Penn. St.
Washburn v. Ramsdell, 17 Vt. 299; 9; Boswell u. Blackman, 12 Ga. 591.
Baker v. Briggs, 8 Pick. 122; Lewis «. ' Gibbons v. Wilcox, 2 Stirk. 81 ;
Woodworth, 2 Comst. 512; Beach v. Grant v. Jackson, Peake, 214; Queen
Wise, 1 Hill N. Y. 612; Slaymaker v. Caroline's case, 2 Br. & B. 302 ; Pleas-
Gundacker, 10 S. & R. 75; Crayton ants v. Fant, 22 Wallace, 116; Bur-
V. Collins, 2 McCord, 457 j Perry v. gess v. Lane, 3 Me. (3 Greenl.) 165;
Graves, 12 Ala. 246 ; Dowty v. Sulli- Gooch v. Bryant, 13 Me. 386 ; Graf-
van, 19 La. An. 448; Blancjour v. ton Bk. v. Moore, 13 N. H. 99; Tut-
Tutt, 32 Mo. 576. See § 1163 a. tie v. Cooper, 5 Pick. 414 ; Burke v.
'Howard v. Cobb, 3 Day, 309; Miller, 7 Cush. .547 ; Dutton w. Wood-
Bound i: Lathrop, 4 Conn. 336 ; Paint- man, 9 Cush. 255 ; Bnckiiam u. Bar-
er V. Austin, 37 Penn. St. 458 ; Camp num, 15 Conn. 68; Whitney v. Ferris,
V. Dill, 27 Ala. 553. 10 Johns. R. 66; Jones v. Hurlbut, 39
■* Supra, § 1163 a. Barb. 403; Harris v. Wilson, 7 Wend.
' Ibid.
6
57; Flanagin u. Champion, 2 N. J.
Supra, § 1194; Gray v. Palmers, Eq. 51 ; Uhler v. Browning, 28 N. J.
1 Esp. 135 ; Catt v. Howard, 3 Starke L. 79; Lenhart v. Allen, 32 Penn. St.
B.-3; Buckingham u. Burgess, 1 Mc- 312; Clawson v. State, 14 Oh. St.
Lean, 549; Burnham v. Sweatt, 16 234; Pierce v. McConnell, 7 Blackf.
N. H. 418 ; Burke v. Miller, 7 Cush. 170; Wiggins v. Leonard, 9 Iowa, 194;
547;Cuyleri;.McCartney,40N.Y.228; Metcalf w. Conner, Litt. (Ky.) Cas.
426
§ 1202.] THE LAW OF EVIDENCE. [BOOK IH.
and even a statement by one partner, that certain indebtedness
incurred by himself is for the firm, is inadmissible to charge the
firm.i The same doctrine has been expressed in a suit against
three persons charged with having jointly made a promissory
note. In such case, it is held, the joint making must be proved
before the admission of one of the alleged makers can be used
against the other.^ But if the declarant be by any process sued
alone, as survivor, or if judgment has been taken by default
against his associates, then as against himself, such declarations
can be received.^
It has been held that the declaration of one of two alleged
partners, that he, the declarant, was solely liable on the debt, is
admissible, when self-disserving, on behalf of the other alleged
partner.* It is otherwise, however, in cases in which such part-
ner could be called as a witness.^
§ 1201. If one of the parties engaged in a common enterprise
After die, death, in dissolving the relationship, closes, as we
missions by have seen, the power of the survivor to charge, by his
caiino" admissions, the estate of the deceased.^ For the same
bind estate reason, the declarations of the executor or the admin-
of associ-
ates, nor trator of the deceased party cannot affect the sur-
the con- . ^
verse. VlVOr.'
§ 1202. Supposing a case to occur in which one associate
Admis- makes admissions in fraud of another, the associates
fraud 'of t^^"® prejudiced have it open to them to apply the same
associates checks, as will presently be noticed, in respect to fraud-
butted, ulent admissions by a nominal plaintiff. It will be per-
mitted to the parties, against whom such admissions are offered,
497; McCorkle v. Doby, 1 Strobh. * Carlyle v. Plumer, H Wisconsin,
396; Wliite v. Gibson, 11 Iredell L. 96.
283; Scott V. Dansby, 12 Ala. 714; « Supra, § 1180, 1196; Story on Partr
Clark V. HufTaker, 26 Mo. 264; Berry nership, § 324a; Atkins ti. Tredgold, 2
11. Lathrop, 24 Ark. 12. B. & C. 63 ; Fordham v. Wallis, 10
1 Elliott V. Dudley, 19 Barb. 326; Hare, 217; Slaymaker «. Gundacker,
Wliite V. Gibson, 11 Ired. L. 283. 10 S. & R. 75; Gaunce v. Backhouse,
2 Gray v. Palmers, 1 Esp. 135. 87 Penn. St. 350. See Boyd v. Foot,
' Ellis W.Watson, 2 Stark. R. 458, 5 Bosw. 110.
Abbott, C. J 7 Slater v. Lawson, 1 B. & Ad.
•> Lucas (I. De la Cour, 1 M. & Sel. 396 ; Hathaway v. Haskell, 9 Pick.
249; Starke v. Kenan, 11 Ala. 818; 24.
Danlbrth v. Carter, 4 Iowa, 230.
426
CHAP. XIII.] ADMISSIONS BY ASSOCIATES. [§ 1205.
to prove their fraud and falsity .^ It is true that if the admis-
sions are contractual, and if the party making them had appar-
ent authority to make them, his associates are bound to parties
lond fide acting on such admissions.^ But if the admissions are
non-contractual, they can be rebutted.^
§ 1203. When the effect of a declaration, by one Self-serv-
party to a joint obligation, is to throw the indebted- Ja^onl'^rf
ness on the other, such declaration is inadmissible, in associate
' not admis-
a suit to fix the other.* sibie.
§ 1204. In actions for tort, whether based on culpa or on
dolus, joinder of defendants does not involve co-action
on part of such defendants ; and hence in such cases, defendants'
the plaintiff, unless there be proof of such co-action, norrccip-'
cannot use the admission of one defendant against the p^jc^ijiye*^
other.^ It is otherwise, in cases of confederacy, or in ^^^ "'H^""-
^ wise when
cases, as we have had occasion to see, where the decla- concert is
rant was the agent of the party against whom the
declaration is used.^ Such statements as are part o£ the res
gestae are of course receivable.'' Hence, though the declara-
tions of co-trespassers, when a narrative of past events, are
inadmissible against each other, such declarations, during the
execution of the trespass, are admissible as part of the res
gestae?
§ 1205. Wherever conspiracy is shown (which is usually in-
1 Taylor's Ev. § 679 ; citing Phil- McCabe v. Burns, 66 Penn. St. 356 ;
lipst;. Clagett, 11 M. & W. 84; Raw- Claytor v. Anthony, 6 Rand. 285;
stone V. Gandell, 15 M. & W. 304. Ellis v. Dempsey, 4 W. Va. 126 ; Sny-
'' Supra, § 1083-4. der«. Laframboise, Breese, 268; Miller
» Supra, § 1088. v. Sweitzer, 22 Mich. 391; Raisler v.
* Very v. Watkins, 23 How. 469. Springer, 38 Ala. 703; Street v. State,
' Daniels v. Potter, M. & M. 501 ; 43 Miss. 1 ; Harrison v. Wisdom, 7
Morse V. Royal, 12 Ves. 362. See as Heisk. 99; Gray v. Nations, 1 Ark.
to imputability of admissions of grant- 557; People v. Trim, 39 Cal. 75.
or or assignor to grantee or assignee, Supra, §§ 1174, 1176. See as to crim-
when collusion is shown, supra, § 1166. inal cases, Whart. Cr. Law, § 702.
" Lincoln v. Claflin, 7 Wall. 132 ; ' Supra, § 258.
JacobsD. Shorey,48 N. H. 100; State 8 North v. Miles, 1 Camp. 389;
». Larkin, 49 N. H. 139; Jenne v. Bowsher v. Galley, 1 Camp. 391; R.
Joslyn, 41 Vt. 478; Bridge v. Eggle- v. Hardwick, 11 East, 585; Powell
ston, 14 Mass. 250 ; Wiggins u. Day, 9 v. Hodgetts, 2 C. & P. 432. See
Gray, 97; Dart v. Walker, 3 Daly, Wright v. Comb, 2 C. & P. 232; Dan-
138 ; Scott V. Baker, 37 Penn. St. 330; iels v. Potter, M. & M. 503.
427
§ 1206.]
THE LAW OF EVIDENCE.
[book m.
ductively from circumstances), there the declarations of one co-
Admission conspirator, in furtherance of the common design, as
spiratoT" long as the conspiracy continues, are admissible against
receivable j^jg associates, though made in the absence of the lat-
each other, ter.'^ " The least degree of concert or collusion be-
tween parties to an illegal transaction makes the act of one
the act of all." 2
§ 1206. But here, as in other previous modifications of the
rule before us, we must keep in mind the underlying distinction
between admissions in furtherance of a conspiracy, and admis-
sions after its close. An admission of a co-conspirator, in any
way coincident with and explanatory of a conspiracy during its
continuance, is admissible ; a narrative, after the conspiracy, so
far as concerns the subject matter of the declaration, is termi-
nated, is inadmissible.^ Thus, where the defendant was charged
with conspiring with T. and others, to defraud the revenue, it
was shown by the prosecution that the defendant was a land-
ing waiter and T. an agent for importers, at the custom-house ;
it being their duty each to make entries of the contents of cases
imported, so as to check the other. On thirteen occasions they
1 R. V. Stone, 6 T. R. 528 ; Nudd
V. Burrows, 91 U. S. (1 Otto) 426 ;
Lee V. Lamprey, 43 N. H. 13; Ap-
thorp V. Comstock, 2 Paige, 482; Orms-
by V. People, 53 N. Y. 472 ; Kimraell
II. Geeting, 2 Grant (Penn.), 125 ; Jack-
son V. Summerville, 18 Penn. St. 359
Kelsey v. Murphy, 26 Penn. St. 78
Brown v. Parkinson, 58 Penn. St. 458
Burns v. McCabe, 72 Penn. St. 309
Confer v. MuNeal, 74 Penn. St. 112
Chicago R. R. v. Collins, 56 111. 212
Philpot V. Taylor, 75 111. 309; Bryce
V. Butler, 70 N. C. 585; Bushnell v.
Bank, 20 La. An. 464. ' For criminal
cases see Whart. Cr. Law, § 702.
" The declarations of each defend-
ant, relating to the. transaction under
consideration, were evidence against
the other, though made in the lafter's
absence, if the two were engaged at
the time in the furtherance of a com-
mon design to defraud tlie plaintiffs.
428
The court placed their admissibility
on that ground, and instructed the.jury
that if they were made after the con-
summation of the enterprise, they
should not be regarded." Field, J.,
Lincoln v. Claflin, 7 Wall. 138, 139.
^ Gibson, C. J., Rogers v. Hall, i
Watts, 361; aff. by Rogers, J., in
Gibbs V. Neely, 7 Watts, 807; and by
Agnew, J., in Confer v. McNeal, 74
Penn. St. 115. See, to same efl'ect,
Deakers v. Temple, 5 Wright (Penn.),
284 ; McKinley v. McGregor, 3
Whart. R. 397; Bredin v. Bredin, 3
Barr, 81. See, also, R. v. O'Connell,
Arm. & T. 475.
8 See supra, §§ 171-5, 1180. E. v.
Hardy, 24 How. St. Tr. 461 ; U. S.
V. White, 5 Cranch C. C. 38; State 11.
Pike, 51 N. H. 105; Lynes v. State, 36
Miss. 617; Strady .-. State, 5 Cold.
300 ; Clinton v. Estes, 20 Arkansas,
216.
CHAP. XIII.] ADMISSIONS BY EEPRESENTATIVE. [§ 1207.
made false entries, entering packages at less than their real
bulk. T.'s check book was offered by the prosecution, for the
purpose of showing by the counterfoil that the defendant re-
ceived from him part of the money of which the government
had been defrauded by their operations ; but this was rejected
by the court, on the ground that the statement was made after
the plot was consummated, and related only to the distributing
of plunder.^ It is of course understood, that to entitle the dec-
larations of a co-conspirator to admission, the conspiracy must be
first proved aliunde.^
VIII. ADMISSIONS BY EEPEESENTATIVE AND PRINCIPAL.
§ 1207. Where a party to a suit is a mere trustee, or one
whose name is used only for purposes of form, the Admis-
admissions of such a party must be received at com- ™^? "*j
mon law for what thev are worth, when offered on trial party can-
by the opposmg interest." But where a court of com- dice real
mon law applies chancery remedies, the meddling of ^"^'
such nominal party will be prohibited,* and evidence of admis-
sions by him may be rejected by the court, when it is in deroga-
tion of the rights of the party beneficially interested, supposing
the declarant to have no interest in the suit ; or when it is in
fraud of the rights of such beneficiary.^ Under such circum-
> R. V. Blake, 6 Q. B. 126. To the 320, Blackburn, J., said : " What the
same general effect, see R. v. O'Con- plaintiff on the record has said is al-
nell, Arm. & T. 257. ways evidence against him, its weight
' See supra, § 1183; and see Com. being more or less. Even if the plain-
V. Crowninshield, 10 Pick. 497 ; Com. tiff is merely a nominal plaintiff, a
V. Ingraham, 7 Gray, 46 ; Clawson v. bare trustee for another, though slight
State, 14 Oh. St. 234 ; State v. Dau- in such a case, it would be admissi-
bert, 42 Mo. 239. ble."
' Bauerman v. Radenius, 7 T. R. * Welsh v. Mandeville, 1 Wheat.
663; 2 Esp. 653; Alner v. George, 1 233.
Camp. 392 ; Gibson v. Winter, 5 B. « Butler v. Millett, 47 Me. 492 ;
& Ad. 96; Franklin Bk. W.Cooper, 36 Sargeant w. Sargeant, 18 Vt. 371;
Me. 180 ; Beatty v. Davis, 9 Gill, 211; Dazey v. Mills, 10 HI. 67; Graham v.
Helm V. Steele, 3 Humph. 472; Ho- Lockhart, 8 Ala. 9; Chisholm v. New-'
gan I). Sherman, 5 Mich. 60; Jones v. ton, 1 Ala. 371; Sykes v. Lewis, 17
Norris, 2 Ala. 526 ; Sally v. Gooden, Ala. 261; Thpmpson v. Drake, 32 Ala.
5 Ala. 78. See Lee v. R. R. L. R. 6 98. See Rawstone v. Gandell, 15 M. &
Ch. Ap. 527. W. 304.
In Moriarty v. R. R. L. R. 5 Q. B. In Robinson v. Hutchinson, 31 Vt
429
§ 1209.] THE LA.W OF EVIDENCE. [BOOK UI.
stances courts have stricken ofE pleas in bar setting up as estop-
pels releases by the nominal party in fraud of the rights of the
real party.^ The termination of the nominal party's interest
in the suit, prior to such release, deprives the release of all
validity .2 Even though receipts or other acknowledgments by
the nominal party be admitted in evidence, it is competent for
the real party to show that such acknowledgments were illusory
and false, either in whole or part.^ It should at the same time
be remembered that the actual party may bind himself to the
declarations of the nominal party by silent acquiescence or by
actual authorization ; * and that admissions by an assignor, made
before the assignment, the assignor being the nominal party to
the suit, are receivable against the assignee.^
§ 1208. A guardian, or prochein amy, is a mere officer of the
Guardian's court, appointed to protect an infant's interests ; and
nori-ecdv- lience it has been held, that although the name of a
"''^ functionary of this class appears on the record, his prior
ward. admissions cannot be received to prejudice his ward's
case.^ But an admission made bond fide, in order to facilitate a
trial, will be received in the same way as the admission of the
attorney in the cause.'^ Clearly an admission by a guardian in
one suit cannot be used against the infant in another suit.* Nor
can a parent's admissions as to general liability be received to
prejudice an infant child.^
§ 1209. A public officer may be vested with such authority by
PubHc of- his constituents as to bind them by the admissions he
makes. Wherever he is authorized to contract, there
fleer's ad-
missions
443, admissions of a party, who was ' Cowling w. Ely, 2 Stark. 366; Mor-
executor and legatee under a will, gan v. Thome, 7 M. & W. 408; Sin-
were admitted to show the testator's clair i". Sinclair, 13 M. & W. 640;
insanity. Eccles v. Harrison, 6 Ec. & Mar. Oas.
1 Payne v. Rogers, 1 Dougl. 407 ; 204 ; Mertz v. Detweiler, 8 Watts &
Innell i'. Newman, 4 B. & Aid. 419; S. 876. See supra, § 767; and see,
Manning v. Cox, 7 Moore, 617; John- as qualifying above, Tenney v. Evans,
son V. Holdsworth, 4 Dowl. 63. 14 N. H. 343.
2 Supra, §§ 1165-8. ' Taylor's Ev. §§ 673, 700.
' Supra, §§ 1083, 1168; Wallace v. « Eccleston v. Speke, 3 Mod. 268;
Kelsall, 7 M. & W. 273 ; Farrar v. Hawkins v. Luscombe, 2 Swanst. 392.
Hutchinson, 9 A. & E. 641. « Bait. City R. R. v. McDonnell,
* Carr v. Casey, 20 111. 637. 43 Md. 534,
" Moriarty v. R. R. L. R. 5 Q. B. 320.
430
CHAP. XIII.] ADMISSIONS BY EEPRESENTATIVE. [§ 1212.
his declarations, when part of the negotiation (there ™*y V'^^
nt • ■•••II -1-1 CODSHIiUi"
being no conflicting statute), are as admissible as would ent.
be, under the same circumstances, the admissions of a private
agent.^ It is necessary, however, to impose liability on the con-
stituent, that these declarations should be within the apparent
scope of the officer's authority.^ Admissions made by a public
officer, after the closing of a transaction, as to its character, if
against his interest, might, if he be deceased, be admitted on
the ground that the self-disserving admissions of a deceased per-
son may be received.^ But if the officer be still living, such evi-
dence would be inadmissible, as hearsay.* He must be called as
a witness, if he has relevant evidence to give.^ When so called,
his testimony is subject to the rule which forbids the contradic-
tion of records by parol." Admission
§ 1210. Not until a representative (e.^. guardian, ex- sentative
ecutor, .or trustee) fairly assumes the representative ^^g°^^^
character, can his admissions be regarded as considerate with repre-
or intelligent or self-disserving ; and hence such admis- autiioritj',
sions, if made before acceptance of such office, cannot tin^ con-
bind the constituent.^ '"'"^"'■
S 1211. So the admissions of an executor or trustee. Nor do
" _ ... such ad-
after leaving office, cannot be used against his constit- missions
a after leav-
uents."* ing office.
§ 1212. When a surety is sued for the debt on which he is
surety, and when the principal's interests are involved principal's
in the defence of the suit, there the self-disserving coin- admissions
^ ' ... receivable
cident contractual admissions of the principal are evi- against
dence against the surety.^ Such admissions are re-
' Supra, § 1170. Sharon v. Salis- 51 ; Legge v. Edmonds, 25 L. J. Ch.
bury, 29 Conn. 113. 125; although we have an intimation
' Mitchell V. Kockland, 41 Me. 363; extending the liability by Tindal, C.
Walker v. Dunspaugh, 20 N. Y. 170; J., in Smith v. Morgan, 2 M. & Rob.
Green v. North BufEalo, 56 Penn. St. 257 ; Moore v. Butler, 48 N. H. 161.
110. See Burgess u. Wareham, 7 Gray, See Hanson v. Parker, 1 Wils. 2o7.
845. See supra, § 1170-5. See supra, § 766.
' Blaokmoreu. Boardman, 28 Mo. ^ Hueston v. Hueston, 2 Ohio St.
420. Supra, § 226. 488. Supra, §1180.
' Morrell v. Dixfield, 30 Me. 157. « Perchard v. Tindall, 1 Esp. 394 ;
' Corinna v. Exeter, 13 Me. 321. Ingle v. CoUard, 1 Cranch C. C. 134;
' See supra, § 920. Hinckley v. Davis, 6 N. H. 210; Bay-
' Fenwick v. Thornton, M. & M. ley v. Bryant, 24 Pick. 198; Amherst
431
§ 1213.J
THE LAW OF EVIDENCE.
[book III.
ceivable against the surety in all cases in which they qualify
and explain acts of which proof would be received.^ But the
principal's n on -contractual admissions, made after breach of the
contract, cannot be received to affect the surety.^ Nor are the
principal's admissions, made before the creation of the debt, evi-
dence against the surety.^
§ 1213. Admissions by a cestui que trust, or party benefi-
Cestui one '^^'^^^Y interested, ma.y be received against his trustee, or
trust's ad- other nominal representative : * and those of the in-
missions . , .
bind demmfymg creditor in a suit against the sheriff for
process executed under the creditor's direction.^ But
in such cases, the interest of the beneficial party, whose admis-
sions are put in evidence, must cover the whole of the claim
Bank v. Root, 2 Mete. (Mass.) 522;
Parker «. State, 8 Blackf. 292; Chapel
V. Washburn, H Ind. 393. See Ma-
haska V. Ingalls, 16 Iowa, 81.
As to distinction between contract-
ual and non-contractual admissions,
see supra, § 1083.
» Hinckley v. Davis, 6 N. H. 210
Richardson v. Hitchcock, 28 Vt. 757
Davis V. Whitehead, 1 Allen, 276
Com. V. Kendig, 2 Penn. St. 448
Bondurant v. Bank, 7 Ala. 830; State
V. Grupe, 36 Mo. 365; Union Savings
Co. V. Edwards, 47 Mo. 445.
In Fenner v. Lewis, 10 Johns. 38,
this admissibility was extended to ad-
missions, by a principal, of receipt of
goods whose price was sued for. But
qucere under statutes enabling princi-
pal to be called.
" Evans v. Beattie, 5 Esp. 26; Ba-
con V. Chesney, 1 Stark. R. 192 ;
Smith V. Whittingham, 6 C. & P. 78;
Caermarthen R. R. v. Manchester R.
R. L. R. 8 C. P. 685; Chelmsford v.
Demarest, 7 Gray, 1; Cassity v. Rob-
inson, 8 B. Mon. 279; Longenecker
i;. Hyde, 6 Binn. 1 ; Blair v. Ins. Co.
10 Mo. 559. See Griffith v. Turner,
4 Gill, 111; Stetson v. Bank, 2 Ohio
St. 167; and supra, § 770.
' Dawes v. Shed, 16 Mass. 6; Chel-
432
tenham v. Cook, 44 Mo. 29; Longe-
necker V. Hyde, 6 Binn. 1.
* Hanson v. Parker, 1 Wils. 257;
R. V. Hardwick, 11 East, 579; May
V. Taylor, 6 M. & Gr. 261, 266; Hart
V. Horn, 2 Camp. 92; Bell v. Ansley,
16 East, 143; Richardson ». Field, 6
Greenl. 305; Kendall v. Lawrence, 22
Pick. 540. See Reed v. Pelletier, 28
Mo. 173.
" The declarations and admissions
of the real party in interest, though
his name does not appear as the party
of record, are competent evidence
against him, the law giving them the
same rights as though he were a party
to the record. 1 Greenleaf on Evi-
dence, § 180; 2 Starkie on Evidence
(Metcalf's ed.), 40, 41.
" This rule is recognized in Rich-
ardson V. Field, 6 Greenl. 305 ; May
& Cheeseman v. Taylor, 6 Man. & Gr.
261 (46 E. C. L. R. 259) ; and Ken-
dall V. Lawrence, 22 Pick. 540."
Barrows, J., Bigelow v. Foss, 59 Me.
164.
^ Dowden v. Fowle, 4 Camp. 38 ;
Young V. Smith, 6 Esp. 121 ; Har-
wood V. Keys, 1 M. & Rob. 204. See
Doming v. Lull, 1 7 Vt. 398 ; and see
supra, § 1212.
CHAP. XIII.] ADMISSIONS OF HUSBAND AND WIFE. [§ 1215.
represented by the nominal party. If the nominal party repre-
sents two or more beneficiaries, then the admission of one of the
latter cannot, with the limitations expressed elsewhere, be re-
ceived to prejudice the suit, unless such admitting party was
expressly or impliedly the representative of the others.^
IX. ADMISSIONS OF HUSBAND AND WIFE.
§ 1214. That a particular article of property belonged sepa-
rately to the wife may be proved, after the husband's Husband's
death, by his declarations.^ His self-disserving dec- tions™'
larations, in accordance with the rule already expressed, f^g'^gg' **"
will be admissible, as against his successors, to prove admissible,
the separate property of his wife,^ though not when in collusion
or in fraud of creditors.*
§ 1215. The husband's admissions, also, that certain money
was lent by his wife to him, as against himself, before any claims
of creditors existed, may be always received ; ^ but it is otherwise
when such declarations lose their self-disserving quality, and
their object appears to have been family support against credit-
ors ; ^ or the support in any way of his wife's interests ; ' or when
1 Doe V. Wainwright, 8 A. & E. 138. Now by the evidence of the
691 ; May v. Taylor, 6 M. & Gr. 261 ; husband himself the intent with which
Pope V. Devereux, 5 Gray, 409 ; Prew- he received can be most satisfactorily
ett V. Land, 36 Miss. 495. established." Mercur, J., Moyer's Ap-
' Cassell V. Hill, 47 N. H. 407 ; peal, ut supra.
Gackenbach v. Brouse, 4 Watts & S. « Supra, § 238; Day v. Wilder, 47
546; McKee v. Jones, 6 Penn. St. Vt. 584; Sharp w. Maxwell, 30 Miss..
425 ; Moyer's Appeal, 77 Penn. St. 589; Cook v. Burton, 5 Bush, 64.
482; Grain v. Wright, 46 III. 107; * Kline's Appeal, 39 Penn. St. 463 ;
though see Parvin v. Capewell, 45 Deakers v. Temple, 41 Penn. St. 234.
Penn. St. 89. See Parvin v. Capewell, 45 Penn. St.
"Declarations made bythehusband 89 ; Brooks v. Dent, 1 Md. Ch. 523.
at the time of receiving the wife's ^ Townsend v. Maynard, 45 Penn.
money or cJioses in action, or after- St. 198 ; Backmann v. Killinger, 55
wards, clearly evincive of the intent Penn. St. 414.
at the moment of reduction to posses- ' Kline's Appeal, 39 Penn. St. 463;
sion, are sufficient to repel the pre- Brooks v. Dent, 1 Md. Ch. 523 ; Bag-
sumption of personal acquisition by ley v. Birmingham, 23 Tex. 452. See
him, and establish the relation of trus- Smith v. Scudder, 11 S. & R. 325.
tee for the wife. Johnston v. John- ' Thomas v. Madden, 50 Penn. St.
ston's Executors, 7 Casey, 450 ; Gick- 261. See Hanson v. Millett, 55 Me.
er's Adm'rs v. Martin, 14 Wright, 184.
VOL. II. 28 433
§ 1217.]
THE LAW OF EVIDENCE.
[book in.
the admissions are made after his interest in the property has
ceased.i But his agency for his wife cannot be proved by his
admissions so as to charge her.^ Nor can the wife's title be
prejudiced by the husband's declarations in her absence, or with-
out proof that he was her agent.^
§ 1216. So far as a married woman is entitled by law to do
Wife when busiuess on her own account, so far is she liable to
entitled to \,[nd herself by admissions.* But the admissions of a
act jundi- .^
caiiy may woman made before marriage cannot bind her husband
to pay her antenuptial debts ; ^ though such admis-
sions, when self-disserving, can be received to show, as against
husband and wife, that certain property, claimed by the latter,
belonged to third persons.^
§ 1217. A man may constitute his wife his agent, and if so he
Her admis- ^^ bound by her admissions in the scope of the agency.'
sions bind 'pjjg agency, however, must be established, before the
band when admissions can come in, though it can be inferred from
she is au- . .,.. ,, ■,•■,-,
thorized to circumstances indicating that he authorized her to act
for him.8 Her admissions, also, must be within the
1 Gillespie u. Walker, 56 Barb. 185.
" Second Bank «. Miller, 2 Thomp.
& C. (N. Y.) 104; Whitescarver v.
Bonney, 9 Iowa, 480.
8 Deck V. Johnson, 1 Abb. (N. Y.)
App. 497; Pierce v. Hasbrouck, 49
111. 23; Campbell II. Quackenbush, 33
Mich. 287 ; Livesley v. Lasalette, 28
Wise. 38.
* Morrell v. Cawley, 17 Abb. (N.
Y.) Pr. 76 ; McLean v. Jagger, 13
How. (N. Y.) Pr. 494; Hackman v.
Flory, 16 Penn. St. 196; Winter t;.
Walter, 37 Penn. St. 155 ; Liggett's
Appeal, 1 Weekly Notes, 353 ; Las-
selle V. Brown, 8 Blackf. 221. See
supra, § 768; Bergman v. Roberts, 61
Penn. St. 497; Dewey u. Goodenough,
66 Barb. 54; Snydacker v. Brosse, 51
111. 357.
' Ross I). Winners, 1 Halst. (N.
J.) 366. See Sheppard t.. Starke, 8
Munf. 29; Churchill «. Smith, 16 Vt.
660.
434
* HoUinshead v. Allen, 17 Penn.
St. 276 ; Claussen v. La Franz, 1
Iowa, 226.
' Carey v. Adkins, 4 Camp. 92;
Meredith v. Footner, 11 M. & W.
202 ; Clifford v. Burton, 1 Bing. 199 ;
Emerson v. Blonden, 1 Esp. 142 ;
Pickering v. Pickering, 6 N. H. 124 ;
Chamberlain v. Davis, 33 N. H. 121 ;
Felker v. Emerson, 16 Vt. 653; Kiley
V. Suydam, 4 Barb. 222; Ripley v.
Mason, Hill & Denio Sup. 66; McKin
ley V. McGregor, 3 Whart. R. 369
Murphy v. Hubert, 16 Penn. St. 50
Barr v. Greenawalt, 62 Penn. St. 172
Stall V. Meek, 70 Penn. St. 181; Col-
gan V. Philips, 7 Rich. 359 ; Ko-
chelle V. Harrison, 8 Port. 351 ; Lang
w. Waters, 47 Ala. 624; Cantrell w.
Colwell, 8 Head, 471.
« Alban v. Pritchett, 6 T. R. 680 ;
Denn v. White, 7 T. R. 112 ; CliJEord
V. Burton, 8 Moore, 16 ; Gregory v.
Parker, 1 Camp. 394 ; Plimmer v.
CHAP. XIII.] ADMISSIONS OF MARRIED WOMAN. [§ 1220.
range of the delegated authority, as otherwise they are inadmis-
sible.^ Accordingly, where a wife was carrying on business
at a distance from her husband, it was held that her admis-
sion as to the amount of rent, and the terms of tenancy, was not
evidence of the facts against him, in replevin by him against his
landlord. " A wife," Alderson, B., said, " cannot bind her hus-
band by her admissions, unless they fall within the scope of the
authority which she may be reasonably presumed to have de-
rived from him ; and where she is carrying on a trade, if it be
necessary for that purpose that she should have such a power, she
may be his agent to make admissions with respect to matters
connected with the trade Here it could not be necessary,
for the purpose of carrying on the business of the shop, that she
should make admissions of an antecedent contract for the hire of
the shop." 2 When she is competent to act through an attorney,
she is bound by his admissions.^
§ 1218. On the principle heretofore stated, that a Heradmia-
ceatui que trust's admissions bind his trustee, a married cdvabfe
woman's declarations can be put in evidence against ^|*'°*^ _
her trustees in suits in which they are the parties.* tees.
§ 1219. In conformity with the rule already stated, as to the
admissibility of the self-disserving admissions of a pred- After her
ecessor in title, the declarations of a wife, as to an admission
antenuptial agreement, by which her chattels were to f^te'r^sf''"
pass to her husband, will bind her representatives bind her
'■ representa-
after her death." tives.
§ 1220. So far as concerns divorce cases, the policy of the law
Sells, 3 N. & M. 422 ; Gilson v. Gil- 27 ; Hussey v. EIrod, 2 Ala. 339 ; Jor-
son, 16 Vt. 464; Butler v. Price, 115 dan». Hubbard, 26 Ala. 433; Queener
578; Benford ii. Zanner, 40 v. Morrow, 1 Coldw. 123; Burnett v.
Penn. St. 9 ; Continental Ins. Co. v. Burkhead, 21 Ark. 77.
Delpuch, 3 Weekly Notes, 277. ' Meredith o. Footner, 11 M. & W.
1 Meredith v. Footner, 11 M. & 202.
W. 202; White v. Holman, 12 Me. » Wilson ». Spring, 64 111. 1 8, quoted
157 ; Goodrich v. Tracy, 43 Vt. 314; supra, § 1184.
McGregor v. Wait, 10 Gray, 72 ; Tur- * See supra, § 1213. McLemore v.
ner v. Coe, 5 Conn. 93; Logue v. Nuckolls, 1 Ala. (Sel.) Cas. 591.
Link, 4 E. D. Smith, 63; Sheppard v. ^ See supra, §§ 1156 et seq. ; Crane
Starke, 3 Munf. 29; Hunt v. Straw, v. Gough, 4 Md. 316.
33 Mich. 85; May v. Little, 3 Ired. L.
435
§ 1220.] THE LAW OF EVIDENCE. [BOOK lU.
precludes the granting of a divorce on the mere admissions by
Admia- either party of adultery.^ The house of lords has gone
S;ery ^0 far as to absolutely exclude such evidence in divorce
closely cases ; though letters written by the wife to third par-
ized. ties have been admitted in evidence when it was first
shown that they were written uninfluenced by fear or promise,
and that the writer was then living apart from her husband.^ It
has been also intimated that the wife's oral confession of guilt
to a third party may be received as cumulative proof.^ By the
house of lords, also, as a general rule, all letters written by the
wife after her separation, either to the husband or to the adul-
terer, are excluded, unless connected with some particular fact
otherwise in proof,* or coming siipply cumulatively.^ But where
a wife deserted her husband, who held a situation at Malta, and
resided in England for several years, during which time she had
lived with a paramour and had borne him four children, the
lords admitted a series of letters from the wife to her husband,
which were tendered as accounting for the circumstance of her
not going out to rejoin him, and as showing that she had prac-
tised upon him the grossest deceit.^ The ecclesiastical courts
applied less stringent tests. It is true that by a canon passed in
1603, a mere confession, unaccompanied by other circumstances,
was insufficient, even under the most solemn sanctions, to support
a prayer for a separation a mensa et thoro ; ^ yet where there was
strong corroborative evidence, such admissions were received as
basis of a decree ; and in a leading case letters from the wife to
the supposed paramour, taken in conjunction with other suspi-
cious circumstances, were, in the absence of direct proof, consid-
1 Supra, § 283 ; Cloncurry's case, See 2 Bishop Marr. & Div. §§ 240,
Macq. Pr. in H. of L. 606; Wash- 251.
hurnD.Washburn, 5 N. H. 195; White " Ld. Cloncurry's case, Macq. Pr.
V. White, 45 N. H. 121; Baxter v. in H. of L. 60S.
Baxter, 1 Mass. 346; Lyon v. Lyon, « Ld. Ellenborough's case. Ibid.
62 Barb. 138 ; Devanbagh v. Devan- 655. But see Wiseman's case, Ibid,
bagh, 5 Paige, 554; Prince v. Prince, 631.
25 N. J. Eq. 310; Scott v. Scott, 17 * Dundas's case. Ibid. 610.
Ind. 809; Sawyer v. Sawyer, Walk. ^ Boydell's case, Ibid. 651.
(Mich.) 48; Savoie v. Ignogoso, 7 « Miller's case, Ibid. 620-623; Tay-
La. R. 281; Evans «. Evans, 41 Cal. lor's Ev. § 696.
107; Craig ». Craig, 31 Tex. 203; ' Mortimer «. Mortimer, 2 Hagg.
Mathews v. Mathews, 41 Tex. 331. Const. 816; Taylor's Ev. § 696.
436
CHAP. Xin.] ADMISSIONS OF MARRIED WOMAN. [§ 1220.
ered suiEcient to establish her guilt, though they were inter-
cepted before reaching the party addressed, and though their
avowal of adultery was only indirect.^
» Grant v. Graht, 2 Curt. 16; Caton Matchin v. Matchin, 6 Barr, 332. See
V. Caton, 7 Ec. & Mar. Gas. 15; Faus- Betts v. Betts, 1 Johns. Ch. 197; Hans-
sett V. Fausset, 7 Ec. & Mar. Gas. 88; ley v. Hansley, 10 Ired. 506.
437
CHAPTER XIV.
PEESUMPTIONS.
I. Geiibral Cohsidebations.
A presumption of law is a postu-
late, a presumption of fact is an
argument from a fact to a fact,
§ 1226.
Prevalent classification of presump-
tions, § 1227.
Presumptions of law unknown to
classical Eomans, § 1228.
Such distinctions of scliolastic ori-
gin, § 1231.
Scholastic derivation of praesum-
tiones Juris et dejare, § 1232.
Gradual reduction of these pre-
sumptions, § 1234.
In modern Roman law they are de-
nied, § 1235.
In our own law they are unneces-
sary, § 1236.
Presumptions of law as distinguish-
able from presumptions of fact,
§ 1237.
Presumptions of fact may by stat-
ute be made presumptions of law,
§ 1238.
Fallacy arising from ambiguity of
terras " law," " legal," and " pre-
sumption," § 1239.
II. Psychological Presumptions.
Of knowledge of law.
Such knowledge always presumed,
§ 1240.
But not of contingent law, § 1241.
Communis error facit j'lts, § 1242.
Of knowledge of fact, § 1243.
0/ innocence, § 1244.
In civil issues preponderance of
proof decides, § 1245.
Of love of life, § 1247.
Of good faith, § 1248.
An ambiguous document is to be
construed in a way consistent
with good faith, § 1249.
438
A contract is to be presumed to
have been intended to have been
made under a valid law, § 1250.
A genuine document is presumed
to be true, § 1251.
Sanity is presumed until the con-
trary appear, § 1252.
Insanity once established is pre-
sumed to continue, § 1253.
To be inferred fi'oni facts, §
1254.
Prudence in avoiding danger pre-
sumed, § 1255.
Supremacy of husband is presumed,
§ 1256.
Wife in housekeeping is inferred
to be husband's agent, § 1257.
Of intent, § 1258.
Probable consequences pre-
sumed to have been intended,
§ 1258.
Business transactions intended
to have the ordinary effect,
§ 1259.
A new statute presumes a change
in old law, § 1260.
Of malice, § 1261.
Malice a presumption of fact,
§ 1261.
Against spoliator, § 1264.
Party tampering with evidence
chargeable with conse-
quences, § 1265.
So of party holding back evi-
dence, § 1266.
Escaping, § 1269.
III. Physicai. Presumptions.
Of incompetency through infancy.
Infants incapable of matri-
mony, § 1270.
And of crime, § 1272.
How far competent in civil re-
lations, § 1272.
CHAP. XIV.]
PRESUMPTIONS.
Of identity, § 1273.
Presumption of from identity of
name, § 1273.
Of death, § 1274.
From lapse of years, § 1274.
Period of death to be inferred
from facts of case, § 1276.
Fact of death presumed from
other facts, § 1277.
Letters testamentary not col-
lateral proof, § 1278.
Of death witliout issue, § 1279.
Of survivorship in ccymmon catas-
trophe, § 1280.
Of liiss of ship from lapse of time,
§ 1283.
IV. Pbesumptions of Uhifokmity and
CoSTINUANCE.
Burden on party seeking to prove
change in existing conditions,
§ 1284.
Residence, § 1285.
Occupancy, § 1286.
Habit, § 1287.
Coverture, § 1288.
Solvency, § 1289.
Value is to be inferred from cir-
cumstances, § 1290.
Foreign law is presumed to be the
same as our own, § 1292.
Constancy of . nature presumed,
§ 1293.
Of physical sequences, § 1294.
Of animal habits, § 1295.
Of conduct of men in masses,
§ 1296.
V. Peesumftions op Regularity.
Marriage presumed to be regular,
§ 1297.
Legitimacy as a rule presumed,
§ 1298.
Regularity in negotiation of paper
presumed, § 1301.
Regularity in judicial proceedings,
§ 1302.
Patent defects cannot thus be
supplied, § 1304.
In error necessarj' facts will be
presumed, § 1306.
So in military courts, § 1306.
So in keeping of records,
§ 1307.
But jurisdiction of inferior
courts is not presumed, §
1.308.
Legislative proceedings, § 1309.
Proceedings of oorporatidn,
§ 1310.
Dates will be presumed to be cor-
rect, § 1312.
Formalities of document presumed,
§ 1313.
Officer and agent presumed to be
regularly appointed, § 1315.
Regularity imputed io pers(ms exer-
cising profession, § 1317.
Acts of public officer presumed to be
regular, § 1318.
Burden on party assailing public
officer, § 1319.
Regularity of business men pre-
sumed, § 1320.
Non-existence of a claim inferred
from non-claimer,"§ 1320 a.
Agreement to pay interred from re-
ception of service, § 1321.
And so from receipt of goods,
§ 1322.
Due delivery of letters presumed,
§ 1323.
Delivery to be inferred from
mailing, § 1323.
And at usual period, §
1324.
Post-mark primd fade proof,
§ 1325.
Delivery to servant is delivery
to master, § 1326.
Presumption from ordinary
habits of forwarding, § 1327.
Letters in answer to one mailed
presumed to be genuine, §
1328.
But not so as to telegrams,
§ l.'!29.
Presumption from habits of
forwarding letters, § 1330.
VI. Peesumptioxs as to Title.
Presumption from possession, §
1331.
As to realty, § 1332.
Such possession must be in-
dependent, § 1334.
As to personalty, § 1336.
Policj' of the law favors presump-
tions from lapse of time, § 1338.
Soil of highway presumed to be-
long to adjacent proprietor, §
1339.
So of hedges and walls, § 1340.
Soil under water presumed to be-
long to owner of land adjacent,
§ 1341.
So of alluvion, § 1342.
Tree presumed to belong to owner
of soil, § 1343.
459
§ 1226.]
THE LAW OF EVIDENCK.
[book in.
So of minerals, § 1344.
Easements to be presumed from
unity of grant, § 1346.
Where title is substantially good,
and there is long possession, miss-
ing links will be presumed, §
1347.
Grants from sovereign will be so
presumed, § 1348.
Grant of incorporeal hereditament
presumed after twenty years, §
1349.
So of intermediate deeds and other
procedure, § 1352.
Instances of links of title so sup-
plied, § 1353.
Links of record may be thus sup-
plied, § 1364.
And so as to licenses, § 1356.
Title to justify such presumption
must be substantial, § 1357.
Presumption is rebuttable, § 1358.
Burden is on party assailing docu-
ments thirty years old, § 1359.
VII. Pbesdmptioss as to Payment.
Payment presumed after twenty
years, § 1360.
Such presumption distinguishable
from extinction by limitation,
§ 1361.
Payment may be inferred from
other facts, § 1362.
Presumption rebuttable, § 1364. .
Receipts may be rebutted, § 1365.
§ 1226
Presump-
tion of law
is a jurid-
ical pos-
tulate ; pre-
sumption
of fact is an
argument
from fact
to fact.
I. GENERAL CONSIDERATIONS.
. A PEESTJMPTION of law is a juridical postulate that a
particular predicate is universally assignable to a par-
ticular object.^ A presumption of fact is a logical
argument from a fact to a fact ; or, as the distinction
is sometimes put, it is an argument which infers a
fact otherwise doubtful, from a fact which is proved.^
Hence, a presumption of fact, to be valid, must rest on
a fact in proof.^ Presumptions, therefore, in this sense
^ See this illustrated infra, § 1237.
" Windscheid's Pandekt. i. § 138.
° " No inference of fact or of law,"
says a learned judge of the supreme
courf of the United States, " is relia-
ble drawn from premises which are
uncertain. Whenever circumstantial
evidence is relied upon to prove a
fact, the circumstances must be proved,
and not themselves presumed. Stark.
on Evid. p. 80, lays down the rule
thus : ' In the first place, as the very
foundation of indirect evidence is the
establishment of one or more facts from
which the inference is sought to be
made, the law requires that the latter
should be established by direct evi-
dence, as if they were the very facts
in issue.' It is upon this principle
that courts are daily called upon to
440
exclude evidence as too remote for the
consideration of the jury. The law
requires an open, visible connection
between the principal and evidentiary
facts and the deductions from them,
and does not permit a decision to be
made on remote inferences. Best on
Evid. 95. A presumption which the
jury is to make is not a circumstance
in proof; and it is not, therefore, a
legitimate foundation for a presump-
tion. There is no open or visible con-
nection between the fact out of which
the first presumption arises and the
fact sought to be established by the
dependent presumption. Douglass v.
Mitchell, S5 Penn. St. 440." ....
Strong, J., U. S. v. Ross, 2 Otto,
284. In R. V. Burdett, 4 B. & Aid.
161, Abbott, C. J., said: " A presump-
CHAP. XIV.] PKESUMPTIONS : CLASSIFICATION. [§ 1228.
are to be regarded rather as among the effects of proof, than as
proof itself.
§ 1227. Presumptions are usually classified as follows : —
1. Irrebuttable or absolute presumptions of law,
. '■ '■ Prevalent
fraesumtiones juris et de jure. ciassifica-
2. Rebuttable or provisional presumptions of law,
praemmtiones juris ;
3. Presumptions of fact, presumtiones hominis ; which pre-
sumptions are always rebuttable, and are determinable by free
logic.^
§ 1228. The classical Roman law recognized only two kinds
of evidence: (1.) persons (iesies), and (2.) things (in- presump-
strwmenta). A witness called in a court of justice jawun-
deposes to certain things from which inferences are to '^j"°T" *°
be drawn ; or these things are brought into court with- Romans,
out the agency of a witness, and from the things as thus pro-
duced inferences can in like manner be drawn. Thus, Paulus
tells us: " Instrumentorura nomine ea omnia accipienda sunt,
quibus causa instrui potest : et ideo tam testiraonia quam per-
sotiae instrumentorum loco habentur." ^ Testes are placed on
the same basis with instrumenta, — instrumenta including all
materials from which a conclusion is to be inferred. Both
testes and instrumenta are to be weighed by the standard of
logic, adapted to the case as it comes up, and not by that of tech-
nical jurisprudence, announced before the case is heard. In the
whole of the Corpus Juris we meet with no such expressions as
praesumtio juris and praesumtio hominis. The idea that it is
tion of any fact ig properly an infer- ray, 58 Penn. St. 126; O'Gara v. Ei-
ence of that fact from other facts that senlohr, 38 N. Y. 296 ; Richmond v.
are known; it is an act of reasoning, Aiken, 25 Vt. 324; People v. Hessing,
and much of human knowledge on all 28 111. 410 ; Hamilton o. People, 29
subjects is derived from this source. Mich. 193; Frosty. Brown, 2 Bay S.
A fact must not be inferred without C. 133 ; Bach v. Cohn, 3 La. An. 103;
premises that will warrant the infer- Pennington v. Yell, 11 Ark. 212; Law-
ence ; but if no fact could thus be horn v. Carter, 11 Bush, 7. To the
ascertained by inference in a court same effect is Bonnier, Traits des
of law, very few offenders could be Preuves, li. 387, 420.
brought to punishment." .... ^ See, as to last form of presump-
That presumptions must rest on es- tion. Mead v. Parker, 115 Mass. 413;
tablished facts, see Tanner v. Hughes, Hamilton v. People, 29 Mich. 193.
53 Penn. St. 289 ; McAleer v. McMur- " L. i. D. xxu. 4.
441
§ 1229.] THE LAW OF EVIDENCE. [BOOK lU.
for the court to say that certain conclusions are to be uni-
formly inferred from certain facts, never entered into the classi-
cal mind. Presumptions, indeed, are discussed at large in the
Digest, and to them a distinct chapter is in part devoted.^ But
the presumptions there noticed deal, not with the effect of evi-
dence, bat the mode of determining thel)urden of proof.
§ 1229. The Roman rule with regard to the burden of proof
has been already fully set forth. As a general proposition, as
we have seen,^ the actor, when plaintiff, or the excipient, when
exceptions are made in the way of confession and avoidance, is
required to prove the case he advances ; yet there are obvious
qualifications to this rule which it was the business of the jurist
to define. An actor, for instance, cannot be required to prove a
negative when the matter is wholly within the knowledge of
his opponent.^ So it is often a matter of doubt whether a partic-
ular fact is technically part of the actor's case, or the excipifent's ;
and this doubt the law must determine.* In proceedings in rem,
to take another illustration, each party is an actor ; and the law
has to settle in advance which partj' has to begin, and how much
each party has to prove, in order to make out a primd facie
case. Questions of this kind, relating exclusively to the burden
of proof, have to be settled by positive rules ; and the positive
rules the jurists announce for this purpose, in answer to ques-
tions put to them, they call praesumtiones. Praesumtiones,
therefore, in the classical sense, denote rules for determining the
burden of proof, but not for determining what is to be the weight
of proof when in.^ Nothing prevents the judge, if required by
his convictions to do so, from deciding in conereto against the
praesumtio that a short time before "was so important to him in
determining the burden of proof. Not merely evidence, in its
strict sense, but argument, as a logical process, is available to
lead him to such conclusions. Every case, when the evidence is
in, is to be determined by a preponderance of proof. As making
up proof, reason and evidence are indeed regarded as coordinate
factors,^ and reason is to be largely influenced by what we call
* Tit. 22, 3 2)e probationibus et prae- 86, — a work which I have freely used
sumtionibus. in the preparation of this chapter.
2 Supra, § 857. 6 Gull, noct. art. iii. c. 16.
» Supra, § 367. See L. 25, h. t. « Supra, §§ 1-6 ; and see particu-
* Endemann's Beweislehre, § 24, p. larly supra, § 278.
442
CHAP. XIV.] PRESUMPTIONS : CLASSIFICATION. [§ 1231.
presumptions of fact. But of arbitrary presumptioDS of law, as-
signing to evidence, when admitted, an unreasonable and un-
truthful meaning, the jurists give no instance. ^ The only con-
tingency in which, on a primd facie case for the actor being
made out, the classical praesumtiones (i. e. rules for determin-
ing the burden of proof) influence the issue, is when the evi-
dence is in equilibrium, in which case judgment is against the
actor.^
§ 1230. Hence, by the classical Roman law, what we now call
presumptions were at the highest only praesumtionis facti or
hominis. The power of inference was to be logically exercised in
each case in the concrete.^ The question of the force of such pre-
sumptions, as we would call them, was exclusively for the logi-
cian ; and though they are noticed frequently by the jurists, they
are styled, not praesumtiones, but signa, argumenta, or exempla.*
§ 1231. Such was the classical Roman doctrine. The Middle
Ages inaugurated a new era. Business, in the old sense, Prevalent
was extinct; and courts no longer met to hear argu- [joifof"*"
ments on the application of principles to a concrete case, scholastic
Wrong, indeed, existed in abundance ; but it was not
put on trial by a competent court. Unsuccessful wrong, or what
appeared to be such, was punished by fine or by killing, without
the trouble of what we would now call a trial ; successful wrong
was not punished at all. Of course, among the active minds
who, in the seclusion of the cloister, speculated on science, there
were some who speculated on jurisprudence; but the jurispru-
dence they dealt with was based on an imaginary, and not on an
actual humanity. They made ideas realities, and they made
men unrealities.^ Not recollecting that it is impossible to predict
even what any one person will do under particular circumstances?
they attempted to establish rules which would be applicable only
' Endemann, ut supra, § 24, p. 87. Preuves, ii. 418) throws overboard the
Mr. Fitzjames Stephen (Ev. p. 2), scholastic terms in a body, styling them
defines a "presumption " " as a rule " ces expressions barbares."
of law that courts and judges (ju- '^ See fully supra, § 457.
ries ?) shall draw-a particular infer- ' See Durant, I.e. nr. 19; Ende-
ence from a particular fact, or from mann, Beweislehre, § 19.
particular evidence, unless and until * See Quinct. V. c. 8.
the truth of such inference is disprov- ^ See the topic in the text ex-
ed." This excludes presumptions /uris panded inanarticleintheForum, 1875,
et de jure. Bonnier (Traitd des p. 201 et seq.
443
§ 1231.J
THE LAW OF EVIDENCE.
[book IU.
if all men who should afterwards exist should do what was pre-
dicted. Certain maxims they conceived to be right, or to fit in
with some preconceived system of ethics, and these maxims they
declared to be either primd facie or absolutely true even in con-
crete cases, where such maxims were primd facie, or absolutely
false. And in place of the real man as he might happen to ap-
pear on trial, they set up an ideal man, who was to be always
presumed, no matter what be the evidence, to have specific un-
varying attributes.^ In like manner, to every act which might
1 See infra, § 1262.
It was here that the realistic phil-
osophy came into play, and exercised
an influence which it is important to
particularly examine.
Have general ideas a real exist-
ence? When we speak of man, is
there such a real thing as a generic
man, with no such differentia as dis-
tinguish one individual man from an-
other ? When we speak of an ab-
stract homicide, is there such a, real
thing as such a homicide, which is
marked by none of the differentia
which distinguish one particular hom-
icide from another ? The foreshad-
owing of the mediaeval speculations
on this point we find in a passage in
Porphyry's Introduction to the Cate-
gories of Aristotle : ' Mox de generi-
bus et speciebus illud quidem sive sub-
sistant sive in soils nudiis intellecti-
bus posita sint, sive subsistentia cor-
poralia sint an incorporalia et utrum
separata a sensilibus an insensilibus
posita et circa haec consistentia, di-
cere recusabo: altissimum enim est
negotium hujusmodi et majoris indi-
gens inquisitionis.' Herzog's Ency.
13, 668. The question is here, there-
fore, thrown out, whether general
ideas have a reality independent of
their subjective existence, or whether
they are exclusively the fictions of the
subjective consciousness. By Boethius
the discussion of this question was in-
troduced in the spheres both of the-
444
ology and jurisprudence. 'See Cou-
sin's observations in his Ouvrages in-
edits d'Abelard, Par. 1836; Kbhier,
in his Kealismus, &c., GrOtba, 1858;
and Mill's Logic, ii. 441. Three so-
lutions were proposed : universalia were
either ante rem, or in re, or post rem.
By the first theory, the general con-
ception really exists before the partic-
ular ; has its own real attributes, and
is the only absolute existence, the par-
ticulars emanating from it being con-
ditioned, limited, and imperfect. By
the second view the general exists only
in actual concrete existences, as some-
thing that is common and essential to
them; yet it (the general) is not a
pure subjective creation of conscious-
ness, but is inherent necessarily in the
particulars. By the third view (the
distinctively nominalistic), the general
has no objective reality : that is to
say, it corresponds to nothing in the
particular things themselves, but it
exists only through the induction of
the understanding, which, comparing
the particulars, draws from them cer-
tain general characteristics, which, in
a particular aspect, they hold in com-
mon.
The realistic theory took immedi-
ate hold of the jurists of the Middle
Ages, and this for several reasons. The
jurists were mostly ecclesiastics, and
dogmatic ecolesiasticisra then accepted
realism as a, divine verity. The ju-
rists had no concrete cases to decide.
CHAP. XIV.J PRESUMPTIONS : CLASSIFICATION. [§ 1232.
be the object of litigation they attached other attributes. Every
man was presumed to act from a routine motive. Every act was
presumed to have been done with a routine intent.
§ 1232. The term praesumtio Juris et de jure, which was in-
troduced by the glossators of the twelfth and thirteenth Scholastic
centuries, was originally intended to express an intense of m-ae- °
presumption : praesumtio juris imperativi or superla- »"™/»<^^
tivi.^ Much difficulty had been felt in finding suitable /"»■«■
limits for such " superlative " presumptions ; " disputant doctores
sed non .convenit inter eos, quid nomine praesumtionis j uris et de
jure veniat ; est enim illud a doctoribus confictum, veluti barba-
rum, certam significationem non habet." ^ At last it was con-
cluded to get rid of all doubt as to their force by making them
irrebuttable; and it was announced that presumptions juris
et de jure were presumptions which did not admit of juridical
disproof. Finally all irrebuttable presumptions became pre-
sumptions juris et de jure, and all presumptions juris et de jure
became irrebuttable Hence it necessarily resulted that not
only fictions were regarded as identical with presumptions juris
et de jure, but all indisputable propositions were admitted into
the same category ; and therefore conclusions which rested on
supposed invariable natural laws were thus classified. It is a
for their opinion was not then asked authority in other respects he so ve-
by the rude courts who disposed of hemently denounced. And it is still
property and life. The jurists also, more remarkable that the realistic hy-
in penal inquiries, held the canon law pothesis, derived from theology and
to be authoritative; and the canon metaphysics, should linger even to the
law, for the purposes of the confes- present day in our courts of law. We
aional, constructed an elaborate theory are still constantly told of an ' ab-
of presumptive proof based upon real- stract killing,' to which certain inva-
ism. The sacerdotal judgment had riable accidents are necessarily at-
to be guided so as to determine rightly tached ; and we are informed that
all the probable cases that might whenever an abstract killing is proved,
arise. Hence, books of casuistry were then these accidents (one of which is
published, in which all the current malice) are to be assigned to it as
forms of guilt were generalized; spe- praesumtiones juris. See article in
cific qualities assigned to each; and Forum for 1875, p. 201, from which
the announcement made that for cer- the above is reduced,
tain general overt acts certain motives ' Globig, Theorie der Wahrschein-
were to be imperatively presumed, lichkeit, ii. 56.
It is remarkable that Lord Coke's ° Cocceius, Diss, de prob. dir. neg.
classification of presumptions was § 17, cited by Burckhard, 370.
taken from the canon lawyers, whose
445
§ 1234.] THE LAW OF EVIDENCE. [BOOK UI.
praesumtio juris et de Jure that information known only at
London this morning cannot be known at Rome this after-
noon. It is a praesumtio juris et de jure that a man who was
at London two days ago cannot to-day be at Rome. And then,
as a reasonable being intends what he does, it is a praesumtio
juris, if not de jure, that before a case is tried, the intent,
even when intent is in litigation, is to be assumed.
§ 1233. Such are the speculations of the scholastic civiliana
from whom the conclusions of our own text writers have been
mainly derived. It is remarkable, for instance, that the com-
mentators on the Roman law on whom Mr. Best (our most
authoritative commentator on this topic) relies, are Alciat
(1492-1550), Henoch (1582-1609), Mascardius (1550-1600),
Matthaeus (1601-1654), and Huber (1636-1694), all of them
exponents of the scholastic jurisprudence, adopting more or less
fuUy its tendency to absorb in jurisprudence all other sciences,
and to merge the regulative element iu the speculative ; all of
them, so far as concerns the distinction between praesumtiones
juris and praesumtiones juris et de jure, following the Italian
glossarists, by whom this distinction was created, and so far
abandoning the Roman standards which restricted the term prae-
sumtio to such assumptions as the law establishes for the purpose
of relieving a party from the burden of a particular proof.
§ 1234. The assignment of irrebuttability to presumptions,
Gradual re- however, is as repugnant to the practical jurisprudence
duction of ^f business life, as it is to the philosophical jurispru-
ones juris deuce of Rome. Practical jurisprudence soon discov-
et dejwe. ...... , i ■ c
ers that a presumption that is irrebuttable in an age of
ignorance is rebuttable in an age of civilization.^ That a man
cannot be, in the same week, in Rome and in London, was an
irrebuttable presumption in the twelfth century ; it is no pre-
sumption at all in the nineteenth. That information cannot be
passed instantaneously from one business centre to another was,
in the twelfth century, irrebuttably presumed ; in the nineteenth
century most of our business contracts are affected by informa-
tion so received. That an appropriate intent is assignable to an
ideal man doing an ideal act may be speculatively true; that
such an intent is to be assumed in advance of a trial cannot be
1 See MiU's Logic, i. 389.
446
CHAP. XIV.] PRESUMPTIONS : CLASSIFICATION. [§ 1235.
practically accepted by courts having to do with real men, put
on trial for acts, many of which are without motive (e. g. in
issues of negligence), and many of which are done suddenly, in
heedlessness, in passion, in • self-defence, or through necessity.
Hence it is that the old presumptions de juris et de jure are
gradually disappearing. This, indeed, is admitted by Mr. Best,i
when he tells us that certain presumptions, which in earlier times
were deemed absolute and irrebuttable, have, by the opinion of
later judges, acting on more enlarged experience, either been
ranged among praesumtiones juris tantum, or considered as pre-
sumptions of fact to be made at the discretion of a jury.^ The
consequence is that our courts, even while holding to the old
phraseology, are so far contracting the range of presumptions de-
juris et de jure that while the class is still said to exist, no per-
fect in dividuals of the class can befound. The unimpeacha-
bility of records is one of the last survivors of these presump-
tions, and the unimpeachability of records is still spoken of
as a presumption juris et de jure ; but whatever may be the
name given to this presumption, it vanishes when it is con-
fronted by proof of fraud or oppression.^
§ 1235. While in our own law praesumtiones juris et de jure
preserve an existence which is now merely titular, in !„ modem
the modern Roman law, as taught by its most authori- disti'nctio!r
tative commentators, even this titular recognition is re- '^ denied,
fused. The scholastic praesumtiones juris et de jure, it is held
by the best French and German commentators on this particu-
lar topic,'' are resolvable into the following classes : —
1. Conclusions from natural laws, the disproval of which is
impossible.
2. Processual rules, enacted to facilitate litigation that in the
long run is just, or to check litigation that in the long run is
vexatious.
3. Fictions, which though false, are assumed by the policy of
the law.
* Best's Ev. § 307. « See Endemann's Beweislelire, 85-
' He cites to this Ph. & Am. Ev. 94 ; Burckhard, Civilistische Praesum-
460; 1 Ph. Ev. 10th ed. tionen, 369 et seq. ; 11 Vierteljahr-
' See striking illustrations of this schrift fiir Gesetzgebung, 601; Ben-
in Windsor D. McVeigh, U. S. Sup. nier, Traits des Preuves, ii. 387-414
Ct. 1876, quoted supra, § 796. , et seq.
447
§ 1237.] THE LAW OF EVIDENCE. [BOOK HI.
4. Statutory presumptions, such as those introduced, hy way
of limitation, to quiet titles, or (as in the case of the statute of
frauds) to exclude inferior and unreliable proof .^
§ 1236. The modification just noticed, of the old classification
In our of presumptions, avoids what is evil in that classifica-
unnecel- *^°"' ^^^ retains what is good. By getting rid of the
sary. term irrebuttable presumptions we not only remove a
series of presumptions, really rebuttable, from a category to which
they do not belong, but we relieve the practical administration
of justice from the embarrassments which are produced from
judges applying, in their charges to juries, the term irrebuttable
to presumptions which are open to disproof. On the other hand,
we retain, restoring them to their proper place, those leading
axioms of law (e. g. the postulates that all persons are cognizant
of the law to which they are subject, and that all sane persons
are responsible for their acts) which were once called presump-
tions de juris et de jure, but which are really among the neces-
sary principles from which jurisprudence starts.
§ 1237. Dropping, therefore, the term praesumtiones juris et
de jure, as unnecessary if not unphilosophical, we proceed to dis-
cuss, as the subject of the present chapter, presumptions of law,
in their general sense, and presumptions of fact. Our first duty
will be to inquire in what these presumptions differ. And on
examination, the points of difference will be found to be as fol-
lows : —
1. A presumption of law derives its force from jurisprudence
Presamp- ^^ distinguished from logic. A statute, for instance,
i'°°^df f '^^y ^^y* *^^* ^ person not heard of for ten years is to
guishabie be counted as dead. This is a presumption of law,
from pre- ,.,.., , Tin i
sumptions and IS arbitrarily to be applied to all cases where par-
° *"'■ ties have been absent for such period without being
heard from. If there be no such statute, then logic, acting induc-
tively, will have to establish a rule to be drawn from all the cir-
cumstances of a particular case. Or a statute may prescribe
that all persons wearing concealed weapons are to be presumed
to wear them with an evil intent. This would be a presumption
of law, with which logic would have nothing to do. On the
other hand, whether a particular person, who carries a concealed
1 See this point discussed supra, §§ 851-53.
448
CHAP. XIV.J PRESUMPTIONS : CLASSIFICATION. [§ 1237.
weapon, there being no statute, does so with an oTil intent, is a
question of logic (i. e. probable reasoning, acting on all the cir-
cumstances of the case) with which technical jurisprudence has
no concern. It is not necessary, however, to a presumption of
law, that it should be established by statute, in our popular
sense of that term. Statute, in its broad sense, includes jurid-
ical maxims established by the courts as much as juridical max-
ims established by the legislature. To make, however, a maxim
established by the courts in this sense a statute, it must be not
only definitely promulgated by judicial authority but finally
accepted ; such maxims being, to adopt Blackstone's metaphor,
statutes worn out by time, the maxim remaining, though the
formal part of the statute has disappeared. The prominent
maxims of this kind are the presumption of innocence, and
the presumption of sanity. Presumptions of law, therefore, are
uniform and constant rules, applicable ohly generically. Pre-
sumptions of fact, on the other hand, are conclusions drawn by
free logic, applicable only specifically.^
2. To a presumption of law probability is not necessary ; but
probability is necessary to a presumption of fact. Pater est quern
nuptiae demonstrant. This is a presumption of law ; and this
presumption holds good even in cases where such paternity is
highly improbable, if it should be possible. So we can conceive
of cases in which it is highly improbable that an accused person
should be innocent of the crime with which he is charged ; yet
probable or improbable as guilt may antecedently appear, he is
presumed to be innocent until he is proved to be guilty. On
the other band, without probability, there can be no presump-
tion of fact. A man is not presumed to have intended an act,
for instance, unless it is probable he intended it.
3. Presumptions of law relieve either provisionally or absolutely
the party invoking them from producing evidence ; presump-
tions of fact require the production of evidence as a preliminary.
The presumption of innocence, for instance, makes it provision-
ally unnecessary for me to adduce evidence of my innocence. On
the other hand, until I am proved to have done a thing, there
can be no presumption against me of intent. Evidence, there-
fore, which is the necessary antecedent to presumptions of fact,
1 See Hamilton v. People, 29 Mich. 193.
VOL. n. 449
§ 1238,] THE LAW OF EVIDENCE. [BOOK IH.
is attached to presumptions of law only as a consequent. Until
the evidence is adduced there can be no presumption of fact ;
there is no presumption of law that is not applicable before the
evidence is adduced.
4. The conditions, to which are attached presumptions of law
are fixed and uniform ; those which give rise to presumptions of
fact are inconstant and fluctuating. For instance : all persons
charged with crime are presumed to be innocent. Here the con-
dition is fixed and uniform ; it involves but a single, incomplex,
unvarying feature, charged with crime ; it is true as to aU persons
embraced in the category. On the other hand, the presumption
of fact, that doing presumes intending, varies with each particular
case, and there are no two cases which present the same features.
Persons charged with crime may be sane or insane ; may be
adults or infants ; may be at liberty or under coercion ; in each
case, so far as concerns the presumption of law, they are persons
charged with crime, and the presumption applies equally to each.
But whether a person doing an act is sane or insane ; is an adult
or an infant ; is at liberty or under coercion ; is essential in deter-
mining intent. Presumptions of fact, in other words, relate to
unique conditions, peculiar to each case, incapable of exact re-
production in other cases ; and a presumption of fact applicable
to one case, therefore, is inapplicable, in the same force and in-
tensity, to any other case. But a presumption of law relates to
whole categories of cases, to each one of which it is uniformly
applicable, in anticipation of the facts developed on trial. Thus,
for instance, all children born in wedlock are presumed by law to
be legitimate until the contrary be proved ; and this presumption
applies to all children so born, no matter who they may be. On
the other hand, whether a bastard is born of a particular father,
is determinable usually by presumptions of fact attachable to con-
ditions as to which no two cases present precisely the same type.
§ 1238. It must be kept in mind, at the same time, that the
Presump- law-making power may attach to any particular fact
fact may or chain of facts certain legal consequences, and in this
ute''made'" "'''^y **^'''^ ^ presumption of fact into a presumption of
presump- \^.^^ Qf this we have the following illustrations:
tions of "
law. Children born in matrimony, in the Roman law, by a
provision already noticed by us, are to be deemed legitimate
450
CHAP. XIV.J PRESUMPTIONS : CLASSIFICATION. [§ 1239.
until the contrary is proved. A person, of whom nothing has
been heard for seven years, is inferred to be dead until the con-
trary be proved. When a father and son die in a common dan-
ger, the son, if an adult (^puhes'), is inferred to have survived,
if not adult, to have been survived by the father. These in-
ferences are in the codes of several countries made positive
rules of law ; the object being to settle by statute points as to
which otherwise there might be doubt. Of presumptions either
established or destroyed by statute, our own legislation gives
numerous instances. The presumption of fact derived from ab-
sence has been introduced into the codes of most of our states.
The presumption of fact, by which a debt, unrecognized for a
series of years, is supposed to have been paid, is made a rule of
law by our statutes of limitation. And in most of our states
we have declared by statute that the presumption of guilt aris-
ing from silence when accused, shall not extend to cases on
trial where a defendant declines to testify in his own behalf.^
§ 1239. The difficulties we have just noticed are largely owing,
the reader must have already noticed, to the ambiguity paHa™
of the terms employed, — an ambiguity which it is one a"9>°e
of the objects of the present chapter to clear. The am- biguity of
biguity in the term "presumption," already discussed "law,"
by us, is thus noticed by Mr. Mill : ^ "To be acquainted and^" p're-
with the guilty is a presumption of guilt ; this man is so sumption."
acquainted, therefore we may presume that he is guilty ; this
argument proceeds on the supposition of an exact correspondence
between presume and presumption, which does not really exist ;
for ' presumption ' is commonly used to express a kind of slight
suspicion, whereas ' to presume ' amounts to absolute belief."
Whether Mr. Mill is right in his definition of " presume " and
" presumption," need not now be considered. It is enough for
the present purpose to say that the words, even if not distinguish-
able in the way Mr. Mill states, go to a jury, if left without ex-
planation, open to meanings from which conclusions diametrically
opposite can be drawn. — The term " law " may be used, in con-
nection with presumptions, in three senses : (1.) A presumption
of law, in its technical sense, is, as we have seen, a presumption
' As to the statute of frauds, see su- " Mill's Logic, ii. 442.
Pra, §§ 851-53.
461
§ 1240.] THE LAW OF EVIDENCE. [BOOK m.
which jurisprudence itseK applies, irrespective of the concrete
case, to certain general conditions whenever they arise. (2.)
But a presumption of law may be also a presumption of fact
which jurisprudence permits; and it is the practice of judges to
say that a presumption of fact is " legal," i. e. that it is one the
law will sustain. (3.) " Law," as we have already seen, may be
used as including the laws of nature and of philosophy, as well
as those of formal jurisprudence. Juries are constantly told, for
instance, that certain conclusions of mental or physical science
are presumptions of law ; and in this way they are led to suppose
that such conclusions bind, as absolute rules of jurisprudence, the
particular case, no matter what may be the phases the evidence
may assume. This error, which tends to subordinate justice to
arbitrary form,^ can be best corrected by an analysis, in this re-
lation, of the presumptions which come most frequently before
the courts. This analysis we now undertake.
ir. PSYCHOLOGICAL PRESUMPTIONS.
§ 1240. " Psychological facts," says Mr. Best,^ " are those
which have their seat in an animate being by virtue of the qual-
ities by which it is animate ; .... as for instance, the sensa-
tions or recollections of which he (an intelligent agent) is con-
scious, his intellectual assent to any proposition, the desires or
passions by which he is agitated, his animus or intention in doing
particular acts, &c. Psychological facts are obviously incapable
of direct proof by the testimony of witnesses, — their existence
can only be ascertained either by confession of the party whose
mind is their seat, index animo sermo, — or by presumptive
inference from physical ones." Among psychological presump-
tions may be enumerated the following.
All persons subject to a law are irrebuttably presumed to
Law re- ^^^^ what it is ; * though this, as we have seen, is
sumedto an axiom of law rather than a presumption.* That
by all sub- the axiom contains an untruth is conceded. No man,
'*° ■ in a civilized community, knows the law either inten-
1 See supra, § 852. 421 ; 5. C. 11 Ad. & E. 727 ; Middle-
« Evidence, § 12. ton o. Croft, Str. 1056 ; R. i'. Esop,
» 1 Hale, 42 ; R. v. Price, 3 P. & D. 7 C. 8e P. 456 ; R. v. Good, 1 C. & K.
* Supra, § 1236.
452
CHAP. XIV.J PRESUMPTIONS : KNOWLEDGE OF LAW. [§ 1240.
sively or extensively ; there is no thinker, no matter how pro-
found, who has not left some depths unfathomed ; no reader,
no matter how omnivorous, who has not left some details un-
touched. To predicate that of the ignorant which cannot be
predicated of the learned specialist is absurd ; ^ but predicated it
is both of ignorant and learned, so far as to establish the conclu-
sion that no one is allowed to set up ignorance of law as an ex-
cuse for wrong. For this several reasons are given. Mr. Austin
inclines to think that the law refuses to recognize ignorance of
the law as a defence, because the law has no tests by which igno-
rance of law can be measured. Who can tell whether, in any
given case, such ignorance exists ? Who can tell whether such
ignorance is inevitable ? ^ Pascal argues that society would be
destroyed if such an excuse were held good. Discussing the
alleged Jesuit dogma that ignorance relieves from responsibility,
he says, with fine satire, that till he heard this, he had supposed
that the most depraved were the most culpable, but that now he
finds that the more stolid the brutishness, or the more reckless
the levity of the criminal, the more blameless he becomes ; and to
in London or New York, or that it
was shut up in the breasts of the
judges at Westminster Hall. If I
should ask him to examine his books
and give me the information which
the law itself ought to have afforded,
he would hint that he lived by his pro-
fession, and that the knowledge he
had acquired by hard study for many
years, could not be gratuitously im-
parted. Your law, therefore, I repeat,
is absurd in its consequences if taken
literally, and mocks us by a reference
to an inaccessible source for an ex-
planation of its obscurities."
See, also, Martindale v. Faulkner,
2 C. B. R. 720, Maule, J. ; R. v.
Mayer, L. R. 3 Q. B. 629 ; Cutter v.
State, 36 N. J. L. 125. Supra, § 1029.
* Austin's Lectures, 2d ed. i. 498.
This is adopted by Hunt, J., in Upton
I'. Tribilcock, 91 U. S. (1 Otto) 45. See
South Ottawa v. Perkins, Sup. Ct. U.
S. Oct. 1876.
185; Stokes V. Salomons, 9 Hare, 79;
E. V. Hoatson, 2 C. & K. 777; R. u.
Bailey, B. & R. 1 ; Stockdale v. Han-
sard, 9 A. & E. 131 ; Barronet's case,
1 E. & B. 1 ; Pearce & D. 51 ; U. S.
V. Learned, 1 1 Int. Rev. Rep. 149 ; The
Ann, 1 Gallit. 62 ; U. S. v. Anthony,
11 Blatch. 200 ; Cambioso v. Maffett,
2 Wash. C. C. 98 ; Com. v. Bagley,
7 Pick. 279 ; Winehart v. State, 6
Ind. 30; Black v. Ward, 27 Mich.
191 ; Whitton u. State, 37 l&is. 379.
' " Besides," objects Mr. Livingston,
in his report on the Louisiana Penal
Code, " is it not a mockery to refer
me to the common law of England?
Where am I to find it ? Who is to
interpret it for me ? If I should ap-
ply to a lawyer for the book that con-
tained it, he would smile at my igno-
rance, and, pointing to about five hun-
dred volumes on his shelves, would
tell me those contained a small part of
it ; that the rest was either unwritten,
or might be found in books that were
453
J 1241.] THE LAW OF EVIDENCE. [BOOK HI.
illustrate Hs criticism, he appeals to Aristotle's observation, that
" All wicked men are ignorant of what they ought to do, and
what they ought to avoid ; and it is this very ignorance which
makes them wicked and vicious." ^ To this it may be added,
that government would come to a stand-still if this principle were
not enforced. Few people would read tax laws, few would read
municipal ordinances, if ignorance in the first case would excuse
paying taxes, in the second case, would excuse obedience to police
regulations ; and the more reckless crime becomes, the more
sullen and resolute would be the ignorance it would cultivate.
§ 1241. It must be remembered at the same time, that the
Butknowl- knowledge of law which is here assumed is simply prac-
edgeof tical knowledge commensurate with the duties whose
contingent _ ^
law not re- non-discharge the law, in the concrete case, condemns.
quired. . .
A person who commits a public wrong, for instance, is
bound to know that the wrong is subject to penal consequences ;
if it is malum in se, his natural consciousness points to this, and
it would be fatal to government to allow want of such natural
consciousness to be a defence ; if it is malum proMMtum, it should
be known by him, for it is his duty, when he undertakes to abide
in a community, to know what it prohibits, for otherwise no
police laws could be enforced. But when questions of construc-
tion of documents come up, then, as we will hereafter see more
fully, a party cannot be always held liable civilly for adopting a
probable construction which the courts may ultimately hold to
' be erroneous.^ So, also, there are different grades of requisite
knowledge proportionate to the duties assumed. Thus a person
not claiming to be a legal specialist is only liable, when the ques-
tion comes up in a civil issue, for a lack of that knowledge of
law common" to non-specialists of his class.* On the other hand,
a person claiming to be a specialist in the law is liable for a lack
of the knowledge common to good practitioners of his school.*
So a knowledge of the legal bearings of the rules of their re-
spective associations is imputed to the members of a stock ex-
1 Pascal, 4th Prov. Letter. » Whart. on Neg. §§ 414, 510, 520,
" Beauchamp v. Winn, L. R. 6 H. 749 ; Miller v. Proctor, 20 Ohio St.
L. 223; Ireland v. Livingston, L. R. 5 442.
Eng. App. 395; Brent v. State, 43 Ala. * See cases cited at large in Whart.
297 ; Kostenberger v. Spotts, 3 Weekly on Agency, § 596 et seq.
Notes, 249. Infra, § 1242.
454
CHAP. XIV.] PRESUMPTIONS : KNOWLEDGE OF LAW OR FACT. [§ 1243.
change,^ and to the members of a club ; ^ and parties taking under
a lease are presumed to know the title which they accept ; ^ and
those executing instruments to know what such instruments
mean.* But whatever be the degree of knowledge of the law
the law presumes the individual to have, he is presumed to have
absolutely. The presumption, if it is to be called such (it being,
as we have noticed, more properly an axiom of jurisprudence),
is irrebuttable, unless in cases of fraud.
§ 1242. It should also be kept in mind that there are cases
in which communis error facit Jus, and in which, there-
fore, the courts will sustain a prevalent construction, error fadt
which is erroneous, rather than disturb titles which •'"*■
have been settled under such construction.^ But this exception
cannot be recognized, so it is said by Lord Denman, " unless it
(the error) can be traced to some competent authority, and if it
be irreconcilable to some clear legal principle." ® By Lord El-
lenborough a less stringent and more reasonable distinction is
taken : to enable the maxim to operate, the error must not be
" floating," but " must have been made the groundwork and sub-
stratum of practice." "^
§ 1243. That a person knows what he does is also sometimes
called a presumption of law. If we take presumption Knowl-
of law to mean something that the law declares to be fdge "f
° lactapre-
umversally true until rebutted, then that all persons sumption
know what they are about is not a presumption of law,
for there are many persons (e. ff. persons influenced by fraud or
coercion) as to whom the law declares just the contrary. But
that a person who is capax negotii should set up ignorance of
facts as ground of exculpation or of defence would be against the
policy of the law ; and hence, where there is no fraud or coercion,
' Stewart v. Canty, 8 M. & W. 160; ' See Kostenbader v. Spotts, 3
Mitcliell V. Newhall, 15 M. & W. 389. Weekly Notes, 249.
^ Kaggett V. Musgrave, 2 C. & P. ^ Lord Denman, C. J., O'Connell
656. V. R. Leahy's Rep. 28.
" Butler V. Portarlington, 1 Con. & ' Isherwood v. Oldknow, 3 M. & S.
L. 24. 396; and see Broom's Max. (5tli ed.
* Lewis V. R. R. 5 H. & N. 867; 139); R. v. Justices, 2 B. & S. 680;
Androscoggin Bk. I). Kimball, 10 Cush. Jonesi. t7. Tapling, 12 C. B. (N. S.)
373; Clem v. R. R. 9 Ind. 488. Infra, 846 ; Phipps v. Ackers, 9 CI. & F.
§ 1243. 598.
455
§ 1244.] THE LAW OF EVIDENCK. [BOOK m.
the law treats him as if he was cognizant of what he did. He
is not supposed to have known facts of which it appears he was
ignorant, but if his ignorance is negligent or culpable, then the
law declares that it cannot protect him.^ Independent of this
liability, we have a right to infer as a presumption of fact, based
upon our experience of business, that an intelligent person who
does a thing in his particular line of business knows what he
is about.2 An underwriter, for instance, in cases where he is
not misled by the insured, is assumed to be familiar with Lloyd's
Shipping List.^ A merchant, also, dealing in a particular mar-
ket, is taken to be acquainted with the custom of that market.*
So a party is assumed to have read the contents of an instrument
executed by him.^ But a party buying a railway ticket will not
be assumed to have notice of conditions printed on its back in
small type.®
§ 1244. In criminal issues, that the defendant should be pre-
sumed to be guilty until the contrary be proved be-
Presump- ,,-,,. • , i
tion of in- yond reasonable doubt, is unquestionably a presump-
tion of law. The presumption, in such case, is to be
treated as weighing so far in favor of the defendant as to re-
quire, in connection with reasonable doubt of guilt, an acquittal-
1 See cases cited in Wharton's S. C. aff. in Ex. Ch. Ibid. 223; Dun-
Criminal Law, 7th ed. §§ 83, 83 a. can v. Hill, 6 L. R. Ex. 25. See,
' Doe V. Turford, 3 B. & Ad. 890, also, Noble v. Kennoway, 2 Doug.
895; Champneys v. Peck, 1 Stark. R. 513; Da Costa v. Edmunds, 2 Camp.
404 ; Pritt I'. Fairclough, 3 Camp. 305 ; 143, cited supra, § 962; Bayley «.
Young V. Turing, 2 M. & Gr. 603, per Wilkins, 7 Com. B. 880 ; Taylor f.
Ld. Abinger; 2 Scott N. R. 752, S. Stray, 2 Com. B. N. S. 175; Hodg-
C; Burton u. Blin, 23 Vt. 151 ; Grace kinson v. Kelly, per Lord Romilly,
V. Adams, 100 Mass. 505 ; Moore v. M. R. 6 Law Rep. Eq. 496 ; Coles ii.
Des Arts, 2 Barb. Ch. 636 ; Woodruff Bristowe, 4 Law Rep. Ch. Ap. 3 ;
V. Woodruff, 52 N. Y. 53 ; Hears v. Bowring v. Shepherd, 49 L. J. Q. B.
Graham, 8 Blackf. 144; Burritt v. 129; Grissell v. Bristowe, 4 L. R. C.
Dickson, 8 California, 113. Supra, § P. 36.
1029; infra. ^ Androscoggin Bk. v. Kimball, 10
» Mackintosh «. Marshall, 11 M. & Cush. 373. See Hunter v. Walters,
W. 116. cited supra, § 932 ; Harris v. Story, 2
* Bayliffe v. Butterworth, 1 Ex. R. E. D. Smith, 363; Clem v. R. R- 8
429, per Alderson, B. ; Pollock v. Sta- Ind. 488 ; and cases cited supra, §
hies, 12 Q. B. 765 ; Greaves v. Legg, 940.
11 Ex. R. 642 ; 2 H. & N. 210^. C, « Malone ». R. R. 12 Gray, 388;
in Ex. Ch., nom. Graves v. Legg; Parker i>. R. R. 25 W. B. 97- See
Buckle V. Knoop, 36 i,. J. Ex. 49 ; Georgia R. R. v. Rhodes, 66 Ga. 168.
456
CHAP. XIV.] PRESUMPTIONS : INNOCENCE. [§ 1246.
In other words, reasonable doubt of guilt, in criminal trials, is
ground for acquittal, in cases where, if we subtracted the proba-
tive force of the presumption of innocence, there might be a
conviction.^
§ 1245. In civil issues, however, the presumption of inno-
cence, in cases where it is applicable, is not technically j^, ^j^jj
evidential, but is of value only so far as it afEects the ^^^"!^ p'®"
' _ ■' ponder-
burden of proof. A railroad company, for instance, apce de-
is sued for damages incurred through the negligence
of one of its subalterns. The subaltern is so far presumed to be
innocent that he is not put on the defence until at least a primd
facie case of negligence is made out by the plaintiff.^ Yet, when
such a case is made out, courts do not tell juries, " If there is
reasonable doubt as to negligence, you must find for the defend-
ant ; " but they say, " You must find in conformity with the pre-
ponderance of proof." There is no general presumption of non-
peccability in civil issues. The wrong, when a wrong is sued
for, must be proved at least primd facie by the plaintifE ; and
then the presumption of good character is simply one of infer-
ence, variable with the particular case. In civil issues, character
is always presumed to be so far good as to throw the burden of
proof on those assailing it ; ^ but its effect on the decision of the
issue is to be determined by the concrete proof. To meet the
burden of proof thrown under such circumstances upon the actor,
it is sufficient if he prove a primd facie case. If the proofs of
exculpation are in the hands of the opposite side, and the latter
does not produce them, the presumption is that they do not ex-
ist.* Where, however, there is an equipoise of evidence, then
the judgment must be against the party attacking. The burden
was on him to prove culpa or dolus, and he has failed to make
good his case.^
§ 1246. It has just been said that the doctrine, that a reason-
1 See Whart. Cr. L. § 707 a, where * See infra, § 1265.
this point is discussed. 6 Supra, §§ 357-8. Ross v. Hunter,
' See supra, § 359. 4 T. R. 33 ; Ireland v. Livingston, L.
» Williams v. E. I. Co. 3 East, 192; R. 5 Eng. Ap. 575 ; Timson v. Moul-
Rodwell V. Eedge, 1 C. & P. 220 ; Ross ton, 3 Cush. 269; Hewlett v. Hewlett,
I). Hunter, 4 T. R. 33 ; Leete v. Ins. 4 Edw. (N. Y.) Ch. 7; Horan v. Weil-
Co. 15 Jurist, 1161 ; Goggans v. Mon- er, 41 Penn. St. 470.
roe, 31 Ga. 331 ; Pratt v. Andrews, 4
Comst. 493. 4o7
§ 1247.]
THE LAW OF EVIDENCE.
[book III.
able doubt of guilt is to work an acquittal, does not apply to
civil issues. If it did, in cases in which guilt is charged on both
sides there migh' be a dead lock, since in such cases, if there be
reasonable doubt on both sides, there could be no verdict at all.
Independent of this point, the doctrine, that reasonable doubt
should produce an acquittal, sprang from the hardship of a
system which inflicted capital punishment on all felonies ; and
is in any view only defensible on the ground that where penal
judgments are to be inflicted, and where the state with all its
power prosecutes, there proof of guilt should be strong. It is
otherwise where the suit is between two private citizens to each
of whom character is supposed to be dear, and each of whom
has the same right to vindication by legal process. Hence the
better view is, that in civil issues the result should follow the
preponderance of evidence, even though the result imputes
crime. Of course, as a factor in such a calculation is to be
considered the presumption of innocence attachable to good char-
acter when character is unassailed.^
§ 1247. Love of life may be assumed when necessary to de-
1 Cooper V. Slade, 6 H. of L. Cas.
772; Magee v. Mark, 11 Ir. R. (N.
S.) 449 ; Scott v. Ins. Co. 1 Dillon C.
C. 105; Knowles !'. Scribner, 57 Me.
497; Ellis u. Buzzell, 60 Me. 209 ;
Matthews v. Huntley, 9 N. H. 150 ;
Folsom V. Brown, 5 Foster, 122 ;
Schmidt V. Ins. Co. 1 Gray, 529 ;
Gordon v. Parmelee, 15 Gray, 413;
Young V. Edwards, 72 Penn. St. 267;
Darling u. Banks, 14 111. 46; McCon-
nell u. Ins. Co. 18 111. 228; Byrket v.
INIonohon, 7 Blackf. 83; Washington
Ins. Co. V. Wil.'ion, 7 Wise. 169 ; ^t-
na Ins. Co. v. Johnson, 11 Bush, 587;
Kincade v. Bradshaw, 3 Hawks, 63;
Sloan V. Gilbart, Law & Eq. R. Ap. 5,
1876; Wightman t7. Ins. Co. 8 Robt.
(La.) 442 ; Hoffman v. Ins. Co. 1 La.
An. 216 ; Smith o. Smith, 5 Oregon,
186. See May on Insurance, § 583.
See, contra, Clark v. Dibble, 16 Wend.
604 ; Woodbeck v. Keller, 6 Cow. 118;
Coulter V. Stewart, 2 Yerger, 225 ;
458
Lanter v. McBwen, 8 Blaekf . 495 ;
Tucker v. Call, 45 Ind. 31 ; Bradley
V. Kennedy, 2 Green (Iowa), 231; For-
shee V. Abrams, 2 Iowa, 571; Ellis v.
Lindley, 38 Iowa, 461; Polstonv. See,
54 jNIo. 291 (though see Rothschild u.
Ins. Co. 62 Mo. 356). And see, also,
Chalmers v. Shackell, 6 C. & P. 475;
Thurtell v. Beaumont, 1 Bing. 339;
AVillmet V. Harmer, 8 C. & P. 695 ;
Neeley v. Lock, 8 C. & P. 532 ; an^
a judicious criticism in 10 Am. Law
Rev. 642.
' In Kane v. Ins. Co. 38 N. J. L. 441,
it was held that where the defence to
an action on an insurance policy is
burning by design, the defendant is
bound to establish the defence beyond
reasonable doubt. WoodhuU, J., in
an elaborate and able opinion, to
which reference may be made as
exhibiting with peculiar fulness the
view opposed to that in the text, cites
as authorities for this conclusion, Thur-
CHAP. XIV.] PRESUMPTIONS : LOVE OF LIFE, ETC.
[§ 1248.
termine the burden of proof. Thus, in a case decided by the su-
preme court of Pennsylvania in 1 876, it was held that
when the evidence is in equilibrium, on an issue of sui- life pre-
cide, it ■will be inferred that suicide is not established. "™^
" The desire of self-preservation," it was said by Mercur, J.,
giving the opinion of the court, " is firmly imbedded in human
nature ; " and the ruling of the court below, that the burden was
on the party setting up suicide, was affirmed. ^
§ 1248. Good faith in a contracting party has been frequently
declared to be a rebuttable presumption of law.^ So Good faith
far, however, as concerns the direct application of the P^^"™^*!-
maxim to civil issues, we must regard it, in the same way as we
regard the presumption of innocence, as an assumption of the
law made for the determination of the burden of proof, and not
tell V. Beaumont, 1 Bing. 339; But-
man». Hobbs, 35 Me. 227; Shultz v.
Ins. Co. 2 Ins. L. J. 495. The con-
clusions given in the text, on the other
hand, are vindicated with much effect
by Barrows, J., in a case decided in
Maine, in 1875, where it was held that
in an action of slander for charging
one with adultery, a preponderance of
testimony will support a plea of jus-
tification. Ellis V. Buzzell, 60 Me.
209. See, also, note (a) to Willmet
V. Harmer, 8 Car. & P. 695, in E. C.
L. R. vol. 34, p. 590, and cases there
cited.
In Knowles v. Scribner, 57 Me. 497,
it was held, that the complainant in
a bastardy process against a married
man is not bound to furnish the same
amount of proof of the defendant's
guilt, as would be necessary to convict
him if he were on trial for adultery, in
order to entitle herself to a verdict and
contribution from the father of her bas-
tard child.
To the same general effect is the
folWing: " In civil cases the jury de-
termine facts according to the weight
of evidence, and not by its sufficiency
to produce conviction of the absolute
certainty of the conclusion arrived at.
In most cases of conflicting evidence,
such a degree or amount of proof would
not be attainable, and to require it
would be tantamount to a denial of
justice. If the evidence is sufficient
to satisfy the mind and conscience of
a common man, and so convince him
that he would venture to act upon that
conviction in matters of the highest
concern and importance to his own in-
terest (1 Stark. Evid. 514), it is all
that the law requires, though such con-
viction may come short of absolute
certainty. There is nothing peculiar
in the determination of a question of
fraud that makes it an exception to
the general rule. Where there is evi-
dence of fraud, its existence must be
determined like any other fact.'' Wil-
liams, J., Young V. Edwards, 72Penn.
St. 267.
^ Continental Insurance Co. v. Del-
peuch, 3 Weekly Notes, 277. See
Terry v. Ins. Co., cited infra, § 1252,
note.
^ See Best's Evidence, §§ 346-7 ;
Greenwood o. Lowe, 7 La. An. 197;
Richards v. Kountze, 4 Neb. 200;
Bumpus V. Fisher, 21 Tex. 661. Su-
pra, § 366.
459
§ 1249.] THE LAW OF EVIDENCE. [BOOK m.
for the adjudication of the merits. A person who is sued is
charged with bad faith, and the burden is on the plaintiff to
prove the charge ; or the defendant sets up bad faith in the
plaintiff, and the burden is on the defendant to make this de-
fence good.^ But when the actor, in either irelation, establishes
a primd facie case, and this is met by evidence sustaining good
faith on the other side, then the case must be decided on the
merits.^ It should be remembered, at the same time, that when
an act which is primd facie illegal is shown, then the burden as
to good faith is shifted. Thus, when an agent, by the character
of his office, is precluded from buying from or selling to his
principal unless the latter is fully advised of the agent's relation
to the transaction, and is capable of forming an intelligent and
responsible judgment, then, when a sale to or a purchase from
the principal is traced to the agent, the burden is on the agent
to prove good faith.*
§ 1249. Yet in one conspicuous relation the doctrine that the
Ambig- law will not impute bad faith has a practical weight in
strament determining the issue. When an instrument is suscep-
strued in a tible of two Conflicting probable constructions, the court
' Greenwood v. Lowe, 7 La. An. In short, the rule rightly considered is,
197. See supra, § 366. that the person standing in such rela-
'^ See fully supra, § 366. Marks- tion must, before he can take a gift or
bury V. Taylor, 10 Bush, 519; Young even enter into a transaction, place
V. Edwards, 72 Penn. St. 267; Van- himself in exactly the same position
bibber v. Beirne, 6 W. Va. 168. As as a stranger would have been in, so
to evidence of character in such cases, that he may gain no advantage what-
see supra, § 47 e< seq. , ever from his relation to the other
' In Hunter v. Atkyns, 3 M. & E. party, beyond what may be the natural
135; cf. Gibson v. Jeyes, 6 Ves. 277, and unavoidable consequence of kind-
Lord Brougham said :" There are cer- ness arising out of that relation." In
tain relations known to the law as at- the case of Rhodes v. Bate, L. K. 1
torney, guardian, trustee; if a person Ch. Ap. 258, Lord Justice Turner
standing in these relations to client, expressed an opinion that in cases
ward, or cestui que trwst, takes a gift of trifling benefits the court would
or makes a bargain, the proof lies upon not interfere to set them aside upon
him that he has dealt with the other the mere proof of influence derived
party, the client, ward, &c., exactly from a confidential relationship, but
as a stranger would have done, taking would require proof of mala fides, or
no advantage of his influence or knowl- of undue or unfair e.xercise of the
edge, putting the other party on his influence. Powell's Evidence, 4th
guard, bringing everything to his ed. 75.
knowledge which he himself knew.
460
CHAP. XIV.J PRESUMPTIONS : GOOD FAITH. [§ 1250.
will adopt that construction which is most consistent sense con-
with good faith, and will hold that such construction with good
was intended by the parties.^ And this rule of con-
struction applies to cases where an act or fact is fairly susceptible
of two interpretations, one lawful and the other unlawful.^ So,
when it is doubtful which of two deeds of the same date was
first executed, priority will be imputed to the instrument which,
by having precedence, will best support the intention of the
parties.^
§ 1250. Suppose a contract is good by the lex solutionis, and
bad by the lex loci contractus, or the converse ; which Contract
law is to apply ? This question may be illustrated by to^have^*^
cases in which a contract by the one law is void for }|f®". ""^^^
'J in view of
usury, and by the other law is valid ; and by cases in aiawunder
•;'•'. ' •' which it is
which an obligor is eapax negotii by the one law, but valid,
is a minor by the other law. It has been argued that, in such
cases, the courts must arbitrarily apply the law to which the
obligation, on abstract reasoning, is subject.* It has been an-
swered, however, and with good reason, that parties who enter
into a contract are to be presumed to do so hond fide, intend-
ing the contract to be performed ; and that they are supposed,
if two systems of law are before them, by one of which the
contract would be good, by the other of which it would be bad,
to incorporate in the contract the law which would make the
contract operative.^ So, on the same principle, it has been
held that where a party undertakes to perform a contract in
a particular place, he will be presumed to intend that the con-
^ Atkyns v. Horde, 1 Burr. 106 ; « Kenton County Court u. Bank
Lewis V. Davison, 4 M. & W. 654; Lick Co. 10 Bush, 829.
Richards v. Bluck, 6 C. B. 441; Ire- ' Taylor v. Horde, I Burr. 107.
land V. Livingston, L. R. 5 Eng. Ap. * See Story's Confl. of liaws, § 76.
395; Marsh v. Whitmore, 21 Wall. ^ Whart. Confl. of L. §§ 112, 115,
178; Tucker v. Meeks, 2 Sweeny, 429,501; Hellman, in re, L. R. 2 Eq.
736; Mechanics'Bk. u. Merchants' Bk. 363; Cutler v. Wright, 22 N. Y. 472;
6 Mete. 13; Foster v. Rockwell, 104 Kilgore v. Dempsey, 25 Oh. St. 413;
Mass. 167; Whart. on Agency, § 248; Kenyon v. Smith, 24 Ind. 11 ; Smith
St. Louis Gas Co. v. St. Louis, 46 v. Whitaker, 23 III. 367; Baldwin
Mo. 121; Goosey II. Goosey, 48, Miss. v. Gray, 16 Mart. 192; Saul v. His
210; Greenwood w. Lowe, 7 La. An. Creditors, 17 Mart. 596; Depau u.
197; Bessent u. Harris, 63 N. C. 542; Humphreys, 20 Mart. 1; Brown v.
Long V. Pool, 68 N. C. 479. Freeland, 34 Miss. 181. See supra,
§314.
461
§ 1252.] THE LAW OF KVIDENCE. [BOOK III.
tract should be construed according to the usages and laws of
such plac?.i
§ 1251. It has been sometimes said that when a document is
shown to be genuine, the law presumes that it is true,
ness as But genuineness and truthfulness are so far from be-
Son'of ^' ing convertible, that documents prepared to effect any
'^''"'' political, social, or ecclesiastical end, are from their
nature ex parte, and are only to be received subject to such
qualifications as may be supplied by a knowledge of the charac-
ter and aims of their authors. It is true that if we could con-
ceive of an ideal genuine document, without any distinctive dif-
ferentia of its own, we might speak of an ideal presumption of
law that such a document is true. But there is no ideal genuine
document ; as soon as genuineness is established, it brings with
it a series of incidents peculiar to itself, by which the inference
of veracity is moulded. The English and French proclamations,
for instance, during the Napoleonic wars, are genuine documents ;
yet, as to the truth of these, the only inference that is admissi-
b 1 • i 1 ' hat no conclusion can be reached without taking into ac-
count the bias and purposes of the parties speaking, and the ac-
curacy of their information. In all cases, where documents are
produced to affect third parties, we must consider, in determin-
ing veracity, the degree of recognition the document has received,
and the depositary from which it is taken.^ The Roman author-
ities on this point speak unhesitatingly. Truth and genuine-
ness, they insist, are no; equivalent, though genuineness or falsi-
fication affords inferences of truth or falsehood. But this conclu-
sion is a praesumptio hominis, or logical conclusion, as distin-
guished from a praesumptio legis, or arbitrary legal conclusion.^
§ 1252. All persons who have reached years of discretion are
regarded primd facie, by a rebuttable presumption of
generally law (^»*esM«ipfo"o /wm), to be sane.* Hence the burden
of proof, when the issue is on a contract, is on the party
1 Bayliffe v. Butterworth, 1 Ex. R. 258; as to distinction between genu-
429; Pollock v. Stables, 12 Q. B. 705; ineness and veracity, see Paley's Evi-
Buckle 0. Knoop, 36 L. J. Ex. 223; dences, Introd. Cliap.
Greaves v. Legg, 2 H. & N. 210. * Harris v. Ingledeea,* 8 P. Wms.
2 See supra, § 194-5. 91 ; Dyce Sombre v. Troup, 1 Deane
» See Quinct. V. 5 ; L. 4, D. xxii. Ec. R. 38 ; Stevens v. Vancleve, 4
4; L. 26, § 2, D. xvi. 3; En(iemann, Wash. C. C. 262; Jackson v. Van
462
CHAP. XIV.]
PRESUMPTIONS : SANITY.
[§ 1253.
disputing sanity.^ In respect to testamentary capacity, it has
been held that the burden is on the party setting up the will ; ^
though this burden is removed by incidental and implied proof
of capacity at time of signing.^ The distinction between the
two classes of cases may be perhaps found in the circumstance
that contracts are the usual incidents of business, and, accord-
ing to our ordinary notions, imply business capacity; while a
will is an exceptional act, often executed in periods of extreme
debility and exhaustion, and therefore does not necessarily as-
sume business capacity. In several jurisdictions, also, the de-
cisions rest on the statutory requisition that a testator should be
of sound mind. It should be added that on a feigned issue from
chancery, based on a, primd faoie case of insanity, the burden is
on the actor in the suit.*
§ 1253. It has frequently been said to be a presumption of
law that chronic insanity is presumed to continue ; ^ insanity
•^ ^ _ presumed
but that such presumption does not exist as to fitful tocontinue.
3 C. B. (N. S.) 87, it was held that
the presumption is one of fact, not to
operate when evidence conflicts. But
see supra, § 1247. For burden of
proof see supra, § 356.
^ Crowninshield v. Crowninshield, 2
Gray, 524; Comstock v. Hadlyme, 8
Conn. 261; Delafield v. Parish, 25
N. Y. 10; Ean v. Snyder, 46 Barb.
230; Taff u. Hosmer, 14 Mich. 309.
' Davis V. Rogers, 1 Houst. 44.
* Frank v. Frank, 2 M. & Rob. 314,
quoted supra, § 356, note.
6 R. V. Layton, 4 Cox C. C. 149; R.
V. Stokes, 3 C. & K. 188; Cartwright
V. Cartwright, 1 Phillimore, 100; Atty.
Gen. V. Parnther, 3 Bro. C. C. 441 ;
White V. Wilson, 13 Ves. 88 ; Prinsop
V. Dyce Sombre, 10 Moo. P. C. 232 ;
Nichols V. Binns, 1 Sw. & Tr. 243;
Smith u. Tebbitt, L. R. 1 P. & D.
398; Hoge v. Fisher, 1 P. C. C. R. 163;
Breed v. Pratt, 18 Pick. 115 ; Hix v.
Whittemore, 4 Mete. 545 ; Sprague v.
Duel, 1 Clarke, N. Y. 90 ; Titlow v.
Titlow, 54 Penn. St. 216; State v.-
Spencer, 1 Zab. 196; Carpenter v.
463
Dusen, 5 Johns. R. 158 ; Jackson v.
King, 4 Cow. 207 ; Bogardus v. Clark,
4 Paige, 623 ; Trumbull v. Gibbons, 2
Zab. 117; Turner v. Cheesman, 15 N
J. Ch. 243 ; Rees v. Stille, 38 Penn. St
138; Egbert v. Egbert, 78 Penn. St,
326; Werstler v. Custer, 46 Penn. St,
502; Thompson v. Kyner, 65 Penn. St
368 ; Runyan v. Price, 15 Ohio St. 1 .
Lilly V. Waggoner, 27 111. 395; Saxon
V. Whitaker, 30 Ala. 237 ; Cotton u
Ulmer, 45 Ala. 378; Farrell v. Bren-
nan, 32 Mo. 328; State v. Smith, 53
Mo. 267. For criminal cases see
Whart. Cr. L. § 13 e/ seq.
^ See cases last cited, and see su-
pra, § 356, note ; Sutton v. Sadler, 3
C. B. (N. S.) 87; Dyce Sombre v.
Troup, iDeane Ec. R. 38,49; Phelps
V. Hartwell, 1 Mass. 71; Howe v.
Howe, 99 Mass. 88; Burton v. Scott,
3 Kand. (Va.) 399; Myatt v. Walker,
44 111. 485. In Terry v. Ins. Co. 1
Dillon, 403, it was held that as to
whether suicide was the product of
insanity, there is no presumption on
either side; and in Sadler v. Sadler,
§ 1255.]
THE LAW OF EVIDENCE.
[book in.
and exceptional attacks.^ This, however, is a mere petitio prin-
cipii; it being tantamount to saying that chronic insanity is
chronic, and transient insanity is transient. The presumption
as to the continuance of insanity, such is the more correct state-
ment, is one of fact, varying with the particular case.^
§ 1254. An inquisition of lunacy is, as to strangers, at the
Insanity most. Only primd faoie proof of business incompetency ,8
inferred though it may conclude parties.* Hearsay in the neigh-
from borhood is inadmissible to prove insanity.^ The issue
circum- ... ,
stances. of insanity is to be determined by the facts proved in
the particular case ; though, in arriving at a conclusion, the opin-
ions of persons who have observed the alleged lunatic, whether
such persons be experts or non-experts, are to be considered.®
Letters addressed to the alleged lunatic are inadmissible unless
acted on by him.^
§ 1255. It will be inferred that a person of ordinary intelli-
Carpenter, 8 Bush, 283; Ballew v.
Clark, 2 Ired. L. 23 ; State v. Brinyea,
5 Ala. 244; Saxon «. Whittaker, 30
Ala. 237 ; Ripley v. Babcock, 13 Wise.
425; State v. Reddick, 7 Kans. 143.
1 Hall V. Warren, 9 Ves. 605 ; White
V. Wilson, 13 Ves. 87; Lewis u. Baird,
3 McLean, 56 ; Hix v. Whittemore, 4
Mete. 545 ; State o. Reddick, 7 Kans.
143; People v. Francis, 38 Cal. 183.
2 Thornton v. Appleton, 29 Me. 298;
Sadler v. Sadler, 3 C. B. (N. S.) 87;
Smith V. Tebbitt, L. R. 1 P. «e D. 434;
Anderson v. Gill, 3 Macqueen, S. C.
Cas. 197.
» Faulder v. Silk, 3 Camp. 126,
per Ld. EUenborough ; Dane v. Kirk-
wall, 8 C. & P. 683, per Patteson, J.;
Frank v. Frank, 2 M. & Rob. 315,
316, n. ; Sargeson v. Sealy, 2 Atk.
412; Bannatyne v. Bannatyne, 2 Rob-
erts. 475-477; Hume v. Burton, 1
Ridg. P. C. 204. See Prinsep & E.
India Co. v. Dyce Sombre, 16 Moo.
P. C. R. 232, 239, 244-247; Hamilton
V. Hamilton, 10 R. L 538; Hart v.
Deamer, 6 Wend. 497 ; Hoyt v. Adee,
3 Lansing, 1 73 ; Hicks v. Marshall,
464
8 Hun, 327; Hutchinson v. Sandt,
4 Rawle, 234; Gangwere's Est. 14
Penn. St. 417; McGinnis v. Com.
74 Penn. St. 245; Lancaster Bank o.
Moore, 78 Penn. St. 407.
* Supra, § 812.
5 Wright V. Tatham, 1 Ad. & El.
313; 7 Ad. & El. 313; 4 Bing. N. C.
489; Lancaster Bk. v. Moore, 78 Penn.
St. 407, overruling Rogers v. Walker,
6 Barr, 371. Supra, § 812.
When the insanity of the defendant
is relied on in defence to an indict-
ment for murder, evidence of the de-
fendant's subsequent acts or conduct
is not admissible to prove the exist-
ence of that condition at the time of
the oflfence, except when so connected
with evidence of a previous state of
mental disorder as to strengthen the
inference of its continuance at the
time of the murder, or when they indi-
cate unsoundness of so permanent a
nature as necessarily to reach back
beyond that time. Commonwealth ».
Pomeroy, 117 Mass. 143.
« Supra, §§ 451 et seq.
' Wright V. Tatham, cited supra,
§175.
CHAP. XIV.] PRESUMPTIONS : HUSBAND'S SUPREMACY. [§ 1257.
gence, on being advised of danger, will take ordinary care for
self-preservation. Thus it has been held in Pennsyl- „ ,
1 1 • 1 1 !■ • 1 Prudence
vania,^ that m the absence of evidence to the contrary, in avoiding
a person who has been killed by a train, at a railway be pre-"'
crossing, will be so far presumed to have observed the '"""^ '
requisite precautions, that the burden of proof is on the railway
company to show the contrary .^ It is scarcely necessary to add
that presumptions of this class are presumptions of fact, varying
in intensity with the capacity of the subject. To an infant, but
a slight degree of prudence is imputed ; the degree imputed
increases with years.^
§ 1256. Where, in the commission of a crime (excepting, it is
said, treason and murder), the husband and wife are „
... ... . . Supremacy
present, and cooperating in the criminal act, it is a, of husband
presumption of law, capable of being rebutted by proof,
that the wife is acting under coercion.* In civil actions for torts
the same primd facie presumption exists in the wife's favor;
though this may be rebutted by proof that she instigated the
tort, or by other circumstances showing her independent and
free concurrence.^ Such presumption does not apply to acta
done in the husband's absence.^ So, in their marital relations,
the supremacy of the husband will be presumed. Thus a deed of
gift to a married woman will be primd facie presumed to be in
her husband's custody.''
§ 1257. Where a wife has charge of her husband's household,
domestic articles, bought by her for the family, are wife in
inferred to have been ordered by his directions.^ If fngi„^'®P"
^ Pennsylvania Railroad Co. u. We- cumstances to preserve his own life,
ber, 76 Penn. St. 157. and that he had stopped, and looked,
^ Though see, contra, Wilcox v. and listened." See Whitford v.
Rome, &c. Railroad Co. 39 N. Y. 358. Southbridge, 119 Mass. 564.
In Weiss v. R. R. 2 Weekly Notes, ' See Whart. on Negligence, §§ 310,
214, the court said : " When the plain- 316.
tiffs below closed their evidence, they * See 1 Hale, 45, 47; R. v. Man-
had a perfect prima facie case to go ning, 2 G. & K. 887, and cases cited
to the jury. They had given evidence in Whart. Or. Law, 7th ed. § 67.
of the negligence of the defendants, ^ Marshall v. Oakes, 51 Me. 308.
and no contributory negligence of the ' Com. v. Butler, 1 Alien, 4.
deceased appeared. The presumption ' McLain u. Sniith, 17 Mo. 49.
of law (V) was that he had done all that ' Lane v. Ironmonger, 13 M. & W.
a prudent man would do under the cir- 368 ; Freestone v. Butcher, 9 C. & P.
VOL. It. . 30 465
§ 1258.] THE LAW OF EVIDENCE. [BOOK III.
ferredtobe she leaves his house voluntarily and causelessly this
band's^" presumption ceases.^ If she has been, without cause,
agent. expelled from his house, she is by law presumed to have
authority to bind him for necessaries.^
§ 1258. That a man intends the probable consequences of
Probable what he does is sometimes styled a presumption of law.
conse- This, however, is an error, if by presumption of law is
intended, meant a presumption to be imposed by the courts as
universally applicable. It is not universally true that a man
intends the probable consequences of his act. A manufacturer
of pistols, for instance, knows that it is probable that some of
the pistols he makes may be used to kill ; but the killing that
results he does not in the eye of the law intend. Probable con-
sequences may result from acts as to which the law, by pronounc-
ing them to be negligent, expressly negatives intent. We are
unable, therefore, to say of all the probable consequences of acts
that they were intended by the authors of such acts. The most
we can say is, that most of such probable consequences were in-
tended ; and that judging from analogy, or imperfect induc-
tion,3 such is the case with the particular consequences we have
to discuss. In this sense we may speak of such consequences
being presumedly intended.* In all departments of jurispru-
' dence this line of reasoning is applied. The owners of a vessel,
for instance, that attempts to run a blockade, are inferred to
be privy to the intent of their agents ; though they may be re-
lieved by showing that at the time of the shipment they did not
know that the blockade existed.* He who publishes a libel is
647 ; Morgan v. Chetwynd, 4 Fost. & Foster v'. Charles, 6 Bing. 396 ; 7 Bing.
F. 451; Philipson v. Hayter, L. R. 6 105; Pontifex v. Bignold, 3 M. & Gr.
C. P. 36; Pickering v. Pickering, 6 63; Craven, ex parte, L. R. 10 Eq.
N. H. 124; Felker v. Emerson, 16 Vt. . 648; Cheeseborough, in re, L. R. 12
653; Stall v. Meek, 70 Penn. St. 181. Eq. 358; Wood, in re, L. R. 7 Oh.
Supra, § 1217. 302; Knapp u. White, 23 Conn. 529;
1 Johnston v. Sumner, 3 H. & N. Quinebaug Bk. v. Brewster, 30 Conn.
261; Biffin v. Bignell, 7 H. & N. 569; Jones i;. Ricketts, 7 Md. 108;
877. Hart v. Roper, 6 Ired. Eq. 349 ; But-
' Bazeley v. Forder, L. R. 3 Q. B. ler v. Livingston, 16 Ga. 665 ; Gaul-
562; Wilson v. Ford, L. R. 8 Exc. din v. Shehee, 20 Ga. 531; Mears ».
63. Graham, 8 Blackf. 144.
» See supra, §§ 6-12, 482, 954. 6 Baltazzi v. Ryder, 12 Moo. P. C.
* The Atalanta, 6 Rob. Adm. 440; 168.
466
CHAP. XIV.] PRESUMPTIONS : INTENT. [§ 1260.
presumed to do so intentionally, though the presumption may
be rebutted by proof of coercion or fraud on part of the plain-
tiff.i We infer, under such circumstances, intent ; but we infer
it (even when a party is examined as to his motives) ^ from the
facts of the particular case. The process is induction from facts,
hot deduction from arbitrary law.^
§ 1259. Akin to the last presumptions is that of adequate
purpose imputed primd facie to business men in busi- a bnsinees
ness operations. Business transactions, when proved, i™umposed
are assumed to have been performed with the ordinary '"•!*'*'« '"
object of such transactions. Thus when an old lease object,
expires, and rent is afterwards received, the landlord is presumed
to continue the tenancy from year to year ; * though this presump-
tion maybe rebutted by proving that the payment was made un-
der circumstances inconsistent with it ; as, for example, under the
impression that the old lease was still subsisting.^ In actions
of trover, also, the jury will be advised to presume a conversion
from unexplained evidence of a demand and refusal.^ And
where a complex business fraud is proved, an intention to de-
fraud will be inferred.''
§ 1260. The same inference applies to corporate and legisla-
tive action. Thus when a statute is passed (whether pagsi„„ ^
such statute be a constitutional amendment, an act of "^'^ stat-
ute pre-
legislature, federal or state, a municipal by-law, a rule sumes an
of court, or an ecclesiastical order), such statute pre- of prior
sumes a change of the prior law. But this is a mere ^'^'
presumption of fact, to be measured as to its force by the con-
crete case.^ In some cases, e. g. where a code is adopted in place
> See Pondfex v. Bignold, 3 M. & 903 ; Stancliffe v. Hardwick, 2 C, M.
Gr. 63. & R. I, 12; Thompson v. Trail, 2 C.
= Supra, §§ 482, 954. & P. 334; 6 B. & C. 36; 9 D. & K.
" Infra, § 1261. 31, S. C. ; Thompson v. Small, 1
* Bishop u. Howard, 2 B. & C. 100; Com. B. 328; Davies v. Nicholas, 7
Doe V. Taniere, 12 Q. B. 998; Eccles. C. & P. 339 ; Clendon v. Dinneford, 6
Commiss. v. Merral, Law Rep. 4 Ex. C. & P. 13; 3 Stark. Ev. 1160, 1161;
162. In these last two cases the les- Taylor's Ev. § 144. See Towne v.
sors were a corporation. Lewis, 7 Com. B. 608.
" Doe V. Crago, 6 Com. B. 90. See ' Doeblin v. Duncan, N. Y. Ct. of
Trent v. Hunt, 9 Ex. R. 24, per Al- App. Nov. 1876 ; Beam v. Macomber,
derson, B. 33 Mich. 127.
' Caunce v. Spanton, 7 M. & Gr. « See Sedgwick Stat. Law, 228, n.;
467
§ 1262.] THE LAW OF EVIDENCE. [BOOK III.
of the common law, or in consolidation of prior statutes, the
presumption vanishes.^ Nor will it be presumed that a legis-
lature intended a construction in conflict with reason ,2 or pub-
lic duty.^
§ 1261. The presumption of malice is subject to the same
Malice a Considerations as that of intent. That such presump-
pesump- ^Jqjj jg ^ presumption of fact in criminal issues, has
fact. been shown at length in another work.* Either the
argument which treats such inferences as presumptions of law
is based on a petitio principii, or its major premise is false. We
are told, for instance, that it is a presumption of law that inten-
tional hurt done to another is malicious.^ Now this is either a
petitio principii, in telling us that something is malicious because
it is malicious, or the argument rests on the major premise,
that all hurts are malicious, which is untrue in fact. The only
legitimate presumption we can draw in such cases is a presump-
tion of fact, viz., that it is probable, from the circumstances of
the case, that malice existed.
§ 1262. The fallacy of turning an inference of fact, in respect
to intent, into a presumption of law, may be thus illustrated :
"All men who kill, do so maliciously. A. has killed B. There-
fore he has done so maliciously." This is the argument as to
intent put syllogistically. But this may be indefinitely varied ;
and of these variations we may take the following, some of
which have been sanctioned by the courts : " Men who fly when
accused are guilty. A. flies when accused. Therefore," &c.
Or, " Accused parties who fabricate evidence are guilty of the
offence they thus attempt to cover. A. has done this : There-
fore," &c. Or, " He who has a motive to commit a crime commits
it. A. had a motive to commit a particular crime : Therefore
A.," &c. Or, " He who was in the neighborhood at the time of
the crime, committed it. A. was in such neighborhood : There-
Potter's Dwarris on Stat. 156; Coo- Neenan u. Smith, 50 Mo. 525. Su-
ley's Const. Lim. 168, 172-7. Supra, pra, § 980 a; infra, § 1309.
§ 980 a. ' Bennett v. McWhorter, 2 W. Va.
1 Nunnally v. White, 3 Mete. (Ky.) 441.
684. * Whart. Cr. Law, 7th ed. § 714.
^ Farnum v. Blaekstone, 1 Sumn. « See State u. Hessenkamp, 1 7 Iowa,
46 1 "Wickham v. Page, 49 Mo. 526; 25.
468
CHAP. XIV.] PRESUMPTIONS : INTENT : MALICE. [§ 1263.
fore A.," &c.^ Now, no one doubts that it is admissible, as
part of a series of facts from which, guilt may be inferred, to
prove that the defendant had a motive to commit the crime, and
that he was in the neighborhood at the time the crime was com-
mitted ; nor can it be disputed that the inference of guilt in the
latter case is the same in kind as the inference of guilty intent
from the mere fact of firing a shot. We must therefore either
treat all presumptions of fact as presumptions of law; or we
must remand the presumptions of malice and of intent to their
proper place among presumptions of fact.^ Our office, in other
words, in all questions of motive and purpose, is, as has been said,
not deduction, but induction. Our reasoning is not, "AH acts of
class A. have a specific intent, and this act being of class A.,
consequently has such intent ; " but it is, " The circumstances of
the case before us make it probable that the act was done inten-
tionally." The process is one of inference from fact, not of pre-
determination by law.^
§ 1263. The fallacy which has just been noticed pervades the
civil as well as the criminal side of our law. Thus we are told
by an authoritative writer, that " The deliberate publication of a
calumny, which the publisher knows to be false, raises, under the
plea of ' Not guilty ' to an action for libel, a conclusive pre-
sumption of malice." * Now, here again is either a mere petitio
prineipii, being equivalent to saying, "A falsehood uttered delib-
erately and knowingly is a falsehood uttered deliberately and
knowingly," or we have exhibited to us, not a " conclusive " but
a probable presumption of malice. Undoubtedly the fact that
a document, attacking the character of another, is published
by a mere volunteer, is ground from which malice may be in-
ferred. But this fact is not always enough to make out malice,
for, when the publication is privileged, then, in order to show
malice, facts inconsistent with bona fides must be proved.*
1 See supra, §§ 851, 1231, as to the * Taylor's Evidence, § 71, citing
scholastic origin o£ the fallacy now Haire v. Wilson, 9 B. & C. 643; R.
discussed. v. Shipley, 4 Doug. 73, 177; Fisher v.
2 See supra, § 1237. Clement, 10 B. & C. 475; Baylis v.
» See Mill's Logic, chap, xxiii. For a Lawrence, 10 A. & E. 925.
fuller exposition of the above argument ^ Bromage u. Prosser, 4 B. & C.
the reader is referred to the article al- 247; Spill v. Maule, L. R. 4 Ex. 232;
ready noticed in the Forum for 1875. Whitefield v. R. R. 1 E., B. & E. 115;
469
§ 1264.J THE LAW OF EVIDENCE. [BOOK in.
Whether there is malice, therefore, even by force of the very-
line of cases before us, is a question of fact, determined by the
evidence in the particvilar case. Another illustration of the same
error may be noticed in an English ruling, that fraud is to
be inferred wherever one man tells an untruth to another for
the purpose of obtaining the latter's goods.^ Here, again, we
have the same dilemma. Either the ruling, if it means that he
that intends to cheat has the intention of cheating, is a bare
petitio principii ; or it rests on a false premise, namely, that
a man who, by means of an untruth, obtains another's goods
intends to cheat, in teeth of the fact that there are innumerable
cases in which untruths are uttered unconsciously, or as mere
brag, or as matters of opinion, in which cases it is held that
the intention to cheat is not proved.^ In this case, also, we have
the process of deduction erroneously substituted for induction, by
which alone, as we have seen, conclusions as to intent can be
reached.
§ 1264. From the vexed question of intent we proceed to an-
Presump- other line of rulings, as to which logical inferences
against have been too often spoken of as absolute presurap-
spoliation. 'tions of law. Where a written instrument is shown
to have been altered, defaced, or destroyed, we may properly
infer that this was done in the interests of the party to be
benefited by the spoliation ; and should he attempt to make
use of the instrument in its corrupted state, or to offer parol
evidence of its contents when it has been so destroyed, not
only will he be precluded from taking advantage of his fraud,
but among the several probable interpretations of the instru-
ment, that which was most unfavorable to him will be adopted.^
Taylor v. Hawkins, 16 Q. B. 308; i Tapp v. Lee, 3 Bos. & Pul. 371.
Cooke u. Wildes, 5 E. & B. 328; Too- See Pontifex u. Bignold, 3 M. & Gr.
good V. Spyring, 1 C, M. & R. 181, 63.
193; 4 Tyr. 582, S. C. ; Coxhead v. ^ See those cases enumerated ia
Richards, 2 Com. B. 669 ; Wright v. detail in Whart. Cr. Law (7th ed.),
Woodgate, 2 C, M. & R. 573; Tyr. §§ 2118, 2133.
& Gr. 12, S. C; Gilpin v. Fowler, 9 » Haldane v. Harvey, 4 Burr. 2484;
Ex. R. 615; Somerville v. Hawkins, R. v. Arundel, Hob. 109; White v.
10 Com. B. 583; Harris U.Thompson, Lincoln, 8 Ves. 363; Atty. Gen. k.
13 Com. B. 333 ; R. „. Wallace, 3 Ir. Windsor, 24 Beav. 679; The Tillie, 7
L. R. (N. S.) 38 Ben. 382; Ville du Havre, 7 Ben. 328;
470
CHAP. XIV.j PRESUMPTIONS AGAINST SPOLIATOR. [§ 1265>
So a spoliation of papers, by a neutral vessel when captured, has
been held to give a strong inference of hostile purpose.^ Again :
as will be presently more fully seen, where the finder of a lost
jewel refuses to produce it, the inference is that it is a jewel of
the highest probable value ; ^ though this presumption will not
be applied to cases where a party, responsible for goods, loses
them merely negligently, or is prevented from producing them
by causes in no way implying dishonesty.^ And generally, even
in respect to spoliation, the presumption is not universal, but
varies in force with the concrete case.
§ 1265. Yet when testimony has been mutilated, suppressed,
or destroyed, the party so mutilating, if he would make Against
use of it, must show that the original character of the tes- [iktmg or
timony was not thereby affected.* Thus where shortly ^^^g"^®
after the commission of an offence, the agents of the dence.
prosecution made some changes in the indicia remaining on the
site of the offence, it was held incumbent on the prosecution to
show the character of these changes.* So proof of the forgery of
false testimony is admissible against the party by whom the fab-
rication is made.^ The same presumption of disfavor is drawn
where an infant heir to an estate is kidnapped and sent abroad,^
and against all forms of attempted suppression of or tampering
with evidence.^ Thus, if an accounting party parts with or de-
MoDonough v. O'Niel, 113 Mass. 92; 111. 302; Shells v. West, 17 Cal. 324.
Merwin o. Ward, 15 Conn. 377 ; Lit- See supra, § 622 et seq. ; and see Price
tie V. Marsh, 2 Ired. Eq. 18 ; Render- v. Tallman, 1 Coxe N. J. 447.
son V. Hoke, 1 Dev. & B. Eq. 119 ; ' State v. Knapp, 45 N, H. 148.
Halyburton v. Kershaw, 3 Desau. (S. ° See Com. w. Webster, 5 Cush. 316.
C.) 105. The guards to be put on this species
As to interlineations and erasures, of presumption are discussed fully in
see supra, § 621 et seq. ; Thompson v. Whart. Cr. Law (7th ed.), § 715.
Thompson, 9 lud. 323. ' Annesley v. Anglesea, 17 How.
' The Hunter, 1 Dods. Adm. 480 ; St. Tr. 1140.
The Pizarro, 2 Wheat. 227. 8 Leeds v. Cook, 4 Esp. 256 ; Gray
' Armory v. Delamirie, 1 Str. 505; v. Haig, 20 Beav. 219; Moriarty v.
1 Smith's L. C. 301; Mortimer t.. E. R. L. R. 5 Q. B. 314; Curlewis v.
Craddook, 7 Jurist, 45. Cerfield, 1 Q. B. 814 ; Owen v. Slack,
' Claunes v. Perrey, 1 Camp. 8. 2 Sim.' & St. 606 ; Bell v. Frankis, 4
* Edmund's case, 1 Whart. & St. M. & Gr. 446; Sutton v. Davenport,
Med. Jur. § 167 ; Joannes v. Bennett, 27 L. J. C. P. 54; Thayer v. Stearns,
6 Allen, 169; Gardner v. People, 6 1 Pick. 109 ; Grimes v. Kimball, 3 Al-
Parker C. R. 156; Blake v. Fash, 44 len,518 ; People u. Rathbun, 21 Wend.
471
§ 1266.] THE LAW OF EVIDKNCE. [BOOK HI.
Btroys his books, the strongest inferences, consistent with the rest
of the case, will be made against him.^ But these inferences also
vary with the case.
§ 1266. The holding back of evidence may be used as a pre-
So against sumption of fact against the party who holds back such
ing''of''evi- evidence in all cases in which it could be produced.^
dence. Thus, under the English Poaching Act, proof that the
defendants were found on a highway, at six A. M. with a bag full
of hares and rabbits, and with nets and stakes, or with nets that
were wet, has been held to be sufficient for magistrates to convict
them of having obtained the game by unlawfully being upon
land in pursuit of game, or having used the nets for unlawfully
taking game, without actual proof of defendants' being upon the
land or using the nets ; ^ there being under the circumstances, so
it was argued, a reasonable presumption against the men, unless
they could give some explanation of the appearances against
them.* And where the plaintiff's identity is disputed, it has been
held,^ that his persistent refusal to appear in person at the trial
is a suspicious circumstance, affording an inference against him,
to be weighed by the jury. " The question," said Agnew, C. J.,
" is hot upon his right to stay away, but upon the motive which
may have' caused his absence. A man of ordinary intelligence
must know that his failing to appear, when he had a strong
509; Meyer v. Barker, 6 Binn. 228; be weighed according to the proof
Keed v. Dickey, 1 Watts, 152; Page which it was in the power of one side
V. Stephens, 23 Mich. 357 ; People v. to have produced, and in the power of
Marion, 29 Mich. 31 ; Winchell v. the other to have contradicted.' Cow-
Edwards, 57 111. 41 ; Revel V. State, per, 63, 65." Graves, C. J., Wallace
26 Ga. 275 ; Blevins v. Pope, 7 Ala. v. Harris, 32 Mich. 394.
371; Bellu. Hearne, 10 La. An. 515 ; See Armory v. Delamire, 1 Str.
Lucas V. Brooks, 23 La. An. 117. 505; R. v. Jarvis, Dears. C. C. 552;
See, however, remarks in Baker v. 7 Cox C. C. 53 ; Atty. Gen. v. Wind-
Kay, 2 Russell, 73. sor, 24 Beav. 679; Shoenberger v.
1 Gray v. Haig, 20 Beav. 231. Hackman, 37 Penn. St. 87; Mordecai
' See cases cited in last section ; v. Beal, 8 Porter, 629.
supra, § 867, Abbott, C. J., in R. v. « Brown v. Turner, 13 C. B. (N.
Burdett,43 B. & Aid. 161 ; Wentworth S.) 485 ; Evans v. Botterell, 3 B. &
V. Lloyd, 10 H. of L. Cases, 689. S. 787; Jenkin u. King, L. R. 7 Q. B.
See Durgin v. Danville, 47 Vt. 95. 468; 20 W. R. 669.
"Lord Mansfield forcibly observed, * Powell's Evidence (4th ed.), 73.
in Blateh v. Archer, that ' It is cer- « Brown v. Shock, 77 Penn. St.
tainly a maxim that all evidence is to 471.
472
CHAP. XIV.] PEESUMPTIONS: SUPPEESSION OF EVIDENCE. [§1267.
motive to appear, would be evidence against him. If he relies
upon his ability to disprove the motive imputed, he takes the
risk, but he leaves the effect of his conduct, as a matter of evi-
dence for the opposite side, to go to the jury, who must weigh
both sides to determine the real motive."
§ 1267. When, on the refusal of a party to produce on trial
papers which have been called for, the opposite party introduces
parol evidence of the contents of the papers,^ then, if there be
doubt, the probable interpretation most unfavorable to the sup-
pressing party will be adopted.^ The non-calling of a witness,
however, will not justify an arbitrary presumption of suppres-
sion.^ " The mere non-production of written evidence," says
Sir W. D. Evans,* " which is in the power of a party, generally
operates as a strong presumption against him. I conceive that
has been sometimes carried too far, by being allowed to supersede
the necessity of other evidence, instead of being regarded as
merely matter of inference, in weighing the effect of evidence in
its own nature applicable to the subject in dispute." So where
a person refused to allow his former solicitor to give evidence of
matters connected with the professional relation, it was held in
the house of lords, that there was no arbitrary adverse presump-
tion which could be used as proof against him.^ Nor where the
deficiency of evidence arises from negligence, can the party who
is accountable for it be benefited by it. Thus, in a case already
noticed, where a liquor merchant sued for goods sold and de-
livered, and the only evidence was that some hampers of full
bottles had been delivered to the defendant, but there was no
evidence of the contents of the bottles ; Lord EUenborough told
the jury to presume that the bottles were filled with the cheapest
liquor in which the plaintiff dealt.^
* Supra, § 153. * 2 Ev. Pothier, 337, cited in text
' Cooper V. Gibbons, 3 Camp. 363
Crisp V. Anderson, 1 Stark. 35 ; Han-
son J.. Eustace, 2 How. (U. S.) 653
in Best's Ev. 414.
s Wentworth v. Lloyd, 10 H. of L.
Gas. 589.
Clifton V. U. S. 4 How. 242; Barber = Powell's Evidence (4th ed.), 89;
V. Lyon, 22 Barb. 622; Gross v. Bell,
34 N. H. 83; Life Ins. Go. v. Ins. Co,
1 Wend. 31 ; Shortz v. Unangst, 3 W,
Glunnes v. Pezze, 1 Gamp. 8.
On this principle, in admitting
evidence of a will proved to have been
& S. 45. destroyed by the heir at law, the judge
' Scovill V. Baldwin, 27 Conn. 316. of the Irish court of probate said, that
473
§ 1268.] THE LAW OF EVIDENCE. [BOOK III.
§ 1268. It follows, therefore, that the presumption arising from
mere non-production cannot be used to relieve the opposing
party from the burden of proving his case. Thus in an action
for penalties for alleged frauds on the revenue (a civil case),i
the court below instructed the jury that it was a rule, that where
a party has proof in his power, which, if produced, would render
material facts certain, the law presumes against him if he omits
to produce it, and authorizes a jury to resolve all doubts ad-
versely to his defence. " If then," continued the court, " you
conclude that, unexplained and uncontroverted by any testimony,
the pending proof would enable you to find against the defend-
ants for the claim of the government or any material part of it,
you will then take all this testimony in view of the principles
stated, that of presuming against the party who fails to produce
proofs in his possession." The supreme court, Mr. Justice Field
delivering the opinion, reversed the judgment on this point,
saying, " The purport of all this was to tell the jury that al-
though the defendants must be proved guilty beyond a reasonable
doubt, yet if the government had made out a primd facie case
against them, not one free from all doubt, but one which dis-
closed circumstances requiring explanation, and the defendants
did not explain, the perplexing question of their guilt need not
disturb the minds of the jurors. Their silence supplied in the
presumptions of the law that full proof which should dispel all
reasonable doubt. In other words, the court instructed the jury,
in substance, that the government need only prove that the
defendants were presumptively guilty, and the duty thereupon
devolved upon them to establish their innocence, and if they did
not, they were guilty beyond a reasonable doubt. We do not
think it at all necessary to go into an argument to show the error
of the instruction. The error is palpable on its statement, and
the authorities condemn it. The instruction sets at naught es-
tablished principles and justifies the criticism of counsel, that it
substantially withdrew from the defendants their constitutional
right of trial by jury, and converted what by law was intended
he should be satisfied with evidence a lost will. Mahood v. Mahood, Ir.
much less cogent than in the case of R. 8 Eq. 359.
1 Chafiee v. U. S. 18 Wall. 516.
474
CHAP. XIV.] PRESUMPTIONS : HOLDING BACK PROOF, ETC. [§ 1271.
for their protection — the right to refuse to testify — into the
machinery for their sure destruction." ^
But when a primd facie case is proved, sufficient by itself to
sustain a judgment, then a party refusing to exhibit books
which would, if produced, settle the matter either one way or
the other, or to give other explanations, not only prejudices his
case on trial, but precludes himself from subsequently objecting
that the case of the opposite party, though sufficient for judg-
ment, did not introduce all the facts.^
§ 1269. Under ordinary circumstances, where there is a fair and
just administration of justice, when a party accused of Against
crime ffies from trial, this affords an inference of fact, fng'fro^^*"
more or less strong, according to the circumstances, of justice,
guilt.^ It should be at the same time remembered that there are
many circumstances (e. g. public excitement, or political prejudice
interfering with the fairness of a trial) which may make it pru-
dent for a man, conscious of his own innocence, to consult safety
by flight.* When such is the case, the inference cannot be log-
ically applied.
III. PHYSICAL PRESUMPTIONS.
§ 1270. Boys under fourteen, and girls under twelve, are by
the English common law presumed incapable of matri- j^f^nts
mouial consent ; and this presumption is irrebuttable.^ presumed
mi .... 11 incapable
The same limit is prescribed by the Roman law, and by 6f matri-
the Council of Trent.e °"'"^"
§ 1271. Children under seven are presumed irrebuttably to be
incapable of crime ; ' between seven and fourteen the ^^^ ^ ^j
presumption is rebuttable by proof that the defendant «"™e.
is capax doli.^ A boy under fourteen is presumed incapable of
1 See Clifford v. U. S. 4 How. C. State v. Phillips, 24 Mo. 475 ; and
C. 242 ; and cases cited in prior sec- see observations in Whart. Cr. Law
tion. (7th ed.), § 714.
2 Roe V. Harvey, 4 Burr. 2484 ; ' Bishop Mar. & Div. § 148 ; 1
Bate y. Kinsey, 1 C, M. & R. 41 ; Black. Com. 436.
Sutton V. Davenport, 27 L. J. C. P. = Whart. Confl. of Laws, § 147.
54. T See authorities in Whart. Cr.
' Whart. Cr. Law (7th ed.), § 714 ; Law, § 58 ; and see, also, State v.
People V. Rathbun, 21 Wend. 509 ; Goin, 9 Humph. 175 ; Godfrey v.
Revel V. State, 26 Ga. 275; State v. State, 31 Ala. 323; R. t. Owen, 4 C.
Williams, 54 Mo. 170. & P. 236.
* Golden v. State, 25 Ga. 527; s Com. v. Mead, 10 Allen, 398;
475
§ 1272.]
THE LAW OF EVIDENCE.
[book m.
rape, as principal in the first degree ; ^ or of an assault with in-
tent to ravish.^
§ 1272. As an infant under seven is not capax doli, an action
How far for false imprisonment lies for the arrest of such an in-
to"i?-n re- fant under charge of felony .3 An infant, of any age,
lations. ^ay, through his guardian or prochein ami, recover dam-
ages for a negligent injury.* Testamentary capacity, so far as
concerns personal property, is by the common law imputed to
boys of fourteen years and girls of twelve, provided they have
disposing memory ; ^ though in many jurisdictions this capacity
is further limited by statute. So far as concerns real estate, the
right of absolute alienation is by common law refused to infants
under twenty-one ; ^ and they may avoid such conveyance when
of age.'' It has, however, been held that an infant lessee, though
not liable on the contract of tenancy, is liable in a suit for use
and occupation.^ The contracts of an infant, it is scarcely neces-
sary to add, may be ratified on his attaining majority .^
1 Green Cr. R. 402; R. v. Smith, 1
Cox C. C. 260.
1 R. V. Phillips, 8 C. & P. 736; R.
V. Jordan, 9 C. & P. U8 ; State v.
Pugh, 7 Jones N. C. L. 61 ; 1 Green Cr.
Rep. 402 ; Whart. Cr. Law, § 1134.
In England this presumption is not
affected by the Act of 24 & 25 Vict,
c. 100, §§ 48, 50 ; R. v. Groombridge,
7 C. & P. 582, per Gaselee, J., and
Ld. Abinger; and it applies to the of-
fence of carnally abusing a girl under
ten years of age. R. v. Jordan, 9 C.
& P. 118, per Williams, J. But if
the boy have a mischievous discretion,
he may be a principal in the second
degree. 1 Hale, 630. The patient
may be convicted of an unnatural
crime, tliough the agent be under
fourteen. R. v. Allen, 1 Den. 364 ; 2
C. & Kir. 869, S. C.
a R. V. Eldershaw, 3 C. & P. 396,
per Vaughan, B.; R. v. Philips, 8 C.
& P. 736, per Patteson, J.
» Marsh v. Loader, 14 C. B. N. S.
535.
* Wharton on TSTeg. § 322.
B 1 Will, on Ex. 14-16.
« See King v. Bellord, 1 Hem. & M.
343.
' Tucker v. Moreland, 10 Pet. 59;
Bool V. Mix, 17 Wend. 120; Stafford
V. Roof, 9 Cow. 626.
' Blake v. Concannon, 4 Ir. R. C. L.
323.
As to the imputability to an infant
of contributory negligence see Whart.
on Negligence, §§ 312, 322.
As to how far an infant can act as
a trustee, or exercise a power, see
King V. Bellord, 1 Hem. & M. 343, and
authorities there cited ; also In re
Arnit's Trusts, 5 L R. Eq. 352; Tay-
lor, 590; 1 Bl. Com. 465, 466 ; Co.
Lit. 78 6.
As to admissions by an infant, see
supra, § 1124, n.
As to how far infant shareholders
» Baylis v. Dineley, 3 M. & S. 477;
Oliver v. Houdlet, 13 Mass. 237 ;
476
Reed v. Batchelder, 1 Mete.
Gillett V. Stanley, 1 Hill, 122.
559 ;
CHAP. XIV.]
PRESUMPTIONS: IDENTITY.
[§ 1273.
§ 1273. In cases where it is proved either directly or inferen-
tially that there are several persons, in the same circle presump-
of society, bearing the same name, mere identity of ^entity
name, by itself, is not sufficient to establish identity of from name,
person. 1 The inference, however, rises in strength with circum-
stances indicating the improbability of there being two persons
of the same name at the same place at the same time.^ Names,
also, with other circumstances, are facts from which identity
can be presumed.^ Where a father and son bear the same
name, the name, if used without any addition, is presumed to
indicate the father.*
are liable to actions for calls, see
Newry & Ennisk. Rail. Co. v. Combe,
6 Rail. Cas. 633 ; 3 Ex. R. 565, S.
C; Leeds & Thirsk Rail. Co. v.
Fearnley, 5 Rail. Cas. 644; 4 Ex. R.
26, S. C. ; Cork & Bandon Rail. Co.
I). Cazenove, 10 Q. B. 935; North
West. R. R. V. McMicbael, 5 Ex. R.
114.
^ See cases cited supra, § 701 ; Jones
V. Jones, 9 M. & W. 75 ; Mooers v.
Bunker, 29 N. H. 420 ; Kinney v.
Flynn, 2 R. I. 319; Bennett v. Lib-
hart, 27 Mich. 489 ; Ellsworth ».
Moore, 5 Iowa, 486; Moss v. Ander-
son, 7 Mo. 337; Morrissey «. Ferry
Co. 47 Mo. 521; Nicholas w. Lansdale,
Litt. (Ky.) Sel. Ca. 21; McMinn v.
Whelan, 27 Cal. 300, and see Reed v.
Gage, 33 Mich. 179.
^ Supra, § 701 ; Greenshields v.
Henderson, 9 M. & W. 75 ; Sewall v.
Evans, 4 Q. B. 626 ; Murietta v.
WoKhagen, 2 C. & K. 744; Bogue
V. Bigelow, 29 Vt. 179; Burford v.
MoCue, 53 Penn. St. 427; Kelly v.
Valney, 5 Penn. L. J. Rep. 300;
Balbee v. Donaldson, 2 Grant (Penn.),
459 ; Gates v. Loftus, 3 A. K. Marsh.
202; Cooper v. Poston, 1 Duvall, 92;
Brown v. Metz, 33 111. 339 ; Gitt v.
Watson, 18 Mo. 274; State v. Moore,
61 Mo. 276; McMinn v. Whelan, 27
Cal. 300.
Even an entry in a registry of bap-
tism may be sufficient evidence o£
the identity of a child. Morrissey v.
Ferry Co. 47 Mo. 521.
s State u. Bartlett, 55 Me. 200;
Jones V. Parker, 20 N. H. 31 ; Dennis
V. Brewster, 7 Gray, 351 ; Farmers'
Bank v. King, 57 Penn. St. 202. See
Com. V. Costello, 120 Mass. 358;
Brotherline v. Hammond, 69 Penn.
St. 128; Bennett!). Libhart, 27 Mich.
489; Brown v. Metz, 33 111. 339; Hunt
V. Stewart, 7 Ala. 525.
" In the absence of circumstances
to cast doubt upon the fact of iden-
tity, the identity of name is enough
to raise a presumption of identity of
person.'' Graves, C. J., Goodell v.
Hibbard, 32 Mich. 48.
* Stebbing v. Spicer, 8 C. B. 827
Jarmaine v. Hooper, 6 M. & G. 827
Stebbins v. Spicer, 8 M., G. & S.827
Sweeting v. Fowler, 1 Stark. R. 106
State V. Vittum, 9 N. H. 519 ; Kin-
caid V. Howe, 10 Mass. 205.
In State v. Vittum, supra, it was
held that this presumption was not
rebuttable. Contra, R. v. Peace, 3 B.
& Aid. 579.
As to presumption from indelibility
of tattoo marks, see R. v. Orton,
Cockburn, C. J., Charge ii. 760.
As to test from similarity of hair,
see Ibid. 53.
477
§ 1274.J
THE LAW OF EVIDENCE.
[book ni.
§ 1274. By the canon law, no length of absence gives a pre-
Death pre- sumption of kw of death ; the presumption is one of
Bumedaf- fact, depending on the concrete case.^ By the Eng-
plained ab- lish common law, at the close of a continuous absence
seven" abroad of seven years, during which time nothing is
years. jjgard of the absent person, death is presumed, as a
presumption of law open to be rebutted by proof or counter
presumptions.'^ This view is accepted in most of the United
States.^ But if there is no proof of unexplained absence, the
mere lapse of time, even supposing that it would make the party
eighty years old, if living, is not by itself enough to prove
death.* It is otherwise when the party would have reached the
limits beyond which life, according to ordinary observation, is
improbable,^ though even when one hundred years is reached,
the conclusion is not absolute.^ With other circumstances ^ (e. g.
J Wharton's Confl. of Laws, § 133.
^ Doe V. Jesson, 6 East, 85 ; Doe
». Deakin, 4 B. & A. 43 ; Hopewell v.
De Pinna, 2 Camp. 113 ; Rust v. Ba-
ker, 8 Sim. 443.
" Moffit V. Varden, 5 Cranch C. C.
658 ; Montgomery v. Bevans, 1 Saw-
yer, 653 ; Stevens v. McNamara, 36
Me. 176; Stinchfield v. Emerson, 52
Me. 465; Smith v. Knowlton, 11 N.
H. 191; Winship v. Conner, 42 N. H.
341; Flynn v. Coffee, 12 Allen, 133 ;
Loring v. Steineman, 1 Mete. 204 ;
Sheldon t). Ferris, 45 Barb. 124; Os-
born V. Allen, 26 N. J. L. 388; Burr
V. Sim, 4 Whart. R. 150; Bradley v.
Bradley, 4 Whart. R. 173; White-
side's Appeal, 23 Penn. St. 114 ;
Holmes v. Johnson, 42 Penn. St. 159;
Crawford v. Elliott, 1 Houst. 465 ; Til-
ly V. Tilly, 2 Bland, 436 ; Whiting v.
Nicholl, 46 111. 230; Spurr v. Trim-
ble, 1 A. K. Marsh. 278; Foulks v.
Rhea, 7 Bush, 568 ; Cofer «. Thur-
mond, 1 Ga. 538 ; Adams v. Jones, 39
Ga. 479; Smith w. Smith, 49 Ala.
166; Learned v. Corley, 43 Miss. 687;
Primm v. Stewart, 7 Tex. 178. See
Bowdcn V. Henderson, 2 Sm. & Gi£E.
478
360, as to rebuttal by counter pre-
sumptions.
Whether a person is alive at a
given date is a question for the jury,
and "his existence at an antecedent
period may or may not afford a rea-
sonable inference that he was living
at a subsequent date. Per Gifiard,
L. J., In re Phene's Trusts, L. R. 5
Ch. 150.
* Weale v. Lower, PoUex. 67; Nap-
per V. Landers, Hutt. 119; Hall, in re,
1 Wall. Jr. 85 ; Letts v. Brooks, Hill
& Denio, Supp. (N. Y.) 36 ; McCai-
tee V. Camel, 1 Barb. (N. Y.) Ch. 455 ;
Duke of Cumberland v. Graves, 9
Barb. 595.
« Jones V. Waller, 1 Price, 229;
R. V. Lumley, L. R. 1 C. C. 196; Doe
V. Michael, 17 Q. B. 276; Allen v.
Lyons, 2 Wash. C. C. 475; Sprigg v.
Moale, 28 Md. 497. See Montgomery
V. Bevans, 1 Sawyer, 653; Manby w.
Curtis, 1 Price, 225.
° Beverly v. Beverly, 2 Vern. 131 ;
Doe V. Andrews, 15 Q. B. 756; Bur-
ney v. Ball, 24 Ga. 605.
' See infra, § 1277.
CHAP. XrV.J PRESUMPTIONS : DEATH. [§ 1274.
non-claimer of rights, or exposure to peculiar sickness or other
calamity, or advanced years), death at a far earlier period may
be inferred.!
The presumption before us, it should be remembered, when
not governed by statute, is one of loigic varying with the cir-
cumstances of the particular case.^ Thus when the object was
to prove the business entries of a person alleged to be deceased,
the court permitted such entries to be read on the bare proof
that they were fifty-four years old.^ Where feoffments, also,
for terms varying from ninety-nine to eighty years have been
made to particular tenants, the practice has been to overlook the
possibility of their surviving the expiration of the terms in de-
termining the nature of the remainders.* But the deposition of a
witness, taken sixty years before a trial, has been rejected in the
absence of proof of search for the witness.^ So where a term
was for sixty years, the court took into consideration the possi-
biUty of the termor living after its expiration.^ On the other
hand, in an action of ejectment, where the lessor of the plain-
tiff, to prove his title, put in a settlement 130 years old, by
which it appeared that the party through whom he claimed had
1 R. V. Harborne, 2 A. & E. 544 ; " In Doe v. Deakin, 4 B. & Aid.
S. C4Nev. & Man. 344; Beasney's 433, it was held that persons in the
Trusts, in re, L. R. 7 Eq. 498; Sel- neighborhood, not of the family, might
lick V. Booth, 1 Y. & C. 117; Main, testify that the absent person had not
in re, 1 Sw. & Tr. 11 ; Allen v. Lyons, been heard of by them. And if the
2 Wash. C. C. 475; White v. Mann, demandant's husband had been heard
26 Me. 361 ; Merritt v. Thompson, 1 of as living within seven years, though
Hilt. (N. Y.) 550 ; Clarke v. Can- by persons not members of his family,
field, 15 N. J. Eq. 119; Gibbes v. Vin- it would certainly afEect the presump-
cent, 11 Rich. (S. C.) 323 ; Spears tion upon which she relied." Hoar,
V. Burton-, 31 Miss. 547 ; Hancock v. J., Flynn v. Coffee, 12 Allen, 133.
Ins. Co. 62 Mo. 26 j Lancaster v. Ins. > Doe v. Michael, 17 Q. B. 276.
Co. 62 Mo. 121; Boss u. Clore, 3 See Jones v. Waller, 1 Price, 229;
Dana, 189. See charge of Cockburn, Doe v. Davies, 10 Q. B. 314. See su-
C. J., in R. u. Orton, and Breadalbane pra, § 238.
case, L. R. 1 H. L. Sc. 182. * Weale v. Lower, Pollex. 67, per
' Tindall, in re, 30 Beav. 151 ; Doe Ld. Hale ; Napper v. Sanders, Hutt.
V. Walley, 8 B. & C. 22 ; R. v. Lum- 119 ; Ld. Derby's case, Lit. R. 370.
ley, L. R. i C. C. 196; Lapsley v. « Benson «. Olive, 2 Str. 920; Wan-
Grierson, 1 H. of L. Cas. 498; Clarke by v. Curtis, 1 Price, 225.
». Cummings, 5 Barb. (N. Y.) 339; ' Beverley v. Beverley, 2 Vern.
Ringhouse v. Keever, 49 111. 470; 131; Doe v. Andrews, 15 Q. B. 756.
Hancock v. Ins. Co. 62 Mo. 26.
479
§ 1276.]
THE LAW OF EVIDENCE.
[book UI.
four elder brothers, the jury were permitted to infer that all
these persons were dead, but that they died unmarried.^
§ 1275. The presumption of continuance of life, which exists
in cases where a person living a short time since is in-
ance of ferred to be living now, is necessarily variable, readily
yielding to the presumption, already noticed, deducible
from the expiration of a period beyond vyhich the continuance of
life is improbable.^ Aiid the presumption of innocence may be
invoked in criminal prosecutions, to either weaken or strengthen
the presumption that the life of a particular person continues.^
§ 1276. When there has been an unexplained absence for
seven years, death, so it has been ruled, is presumed
to have taken place at the close of the seven years ; or,
as it is sometimes put, the party is assumed to have
continued in life until that period has expired.* But
in England it is now said that the time of death,
whenever it is material, must be a subject of distinct proof by
the party interested in fixing the time ; for there is no pre-
sumption as to when, during the seven years, he died;^ and
Period of
death to
be infer-
red from
facts of
case.
1 Doe V. Deakin, 3 C. & P. 402; 8
B. & C. 22. As to, judicial notice of
death, see supra, § 333.
2 See Bowden v. Henderson, 2 Sm.
& Giff. 360. Supra, § 1274; infra, §
1277.
8 K. V. Twyning, 2 B. & A. 386,
R. V. Lumley, 1 Law Rep. C. C. 196;
38 L. J. M. C. 86; and 11 Cox, 274,
S. C. See, further, R. v. Jones, 11
Cox, 358 ; and see, as to presumptions
in bigamy prosecutions, Whart. Cr. L.
(7th ed.) § 2632 ; R. v. Harborne, 2 A.
& E. 540 ; R. «. Mansfield, 1 Q. B.
449. See, also, Lapsley v. Grierson,
1 H. of L. Cas. 498.
Absence unheard of in another
state ot the American Union is equiv-
alent to absence beyond seas. New-
man b. Jenkins, 10 Pick. 515; Innis
V. Campbell, 1 Rawle, 373. See cases
cited in Whart. Cr. Law, § 2632.
* White V. Mann, 26 Me. 361 ;
Eagle V. Emmet, 4 Bradf. N. Y. 117;
480
Merritt v. Thompson, 1 Hilt. N. Y.
650; Clarke v. Canfield, 15 N. J. Ch.
119; Garden v. Garden, 2 Houst. 574;
Gibbes v. Vincent, 11 Rich. (S. 0.)
323 ; Ross v. Clore, 3 Dana, 189; Puck-
ett V. State, 1 Sneed, 355. See Burr
V. Sim, 4 Whart. 150.
6 Re Phene's Trusts, L. R. 5 Ch.
150; Re Lewes's Trusts, L. R. 6 Ch.
357; 40 L. J. Ch. 507. See, to same
effect, Lewes's Trusts, re, 11 Law Rep.
Eq. 236 ; 6 Law Rep. Ch. Ap. 356,
and 40 L. J. Ch. 602, S. C. ; Lambe
1!. Orton, 29 L. J. Ch. 286 ; Tliomas
I'. Thomas, 2 Drew. & Sm. 298 ; In re
Benham's Trusts, 87 L. J. Ch. 265,
per Rolt, L. J. reversing decision by
Malins, V. C, as reported in 36 L.
J. Ch. 502, 4 Law Rep. Eq. 416, S.
C. ; In re Peck, 29 L. J. Pr. & Mat.
95; Dunn v. Snowden, 82 L. J. Ch.
104 ; 2 Drew. & Sm. 201, S. C. ; Doe
V. Nepean, 5 B. & Ad. 86 ; 2 N. & M.
219, S. C; Nepean v. Doe d. Knight,
CHAP. XIV .]
PRESUMPTIONS: DEATH.
[§ 1277.
this view is accepted by a preponderance of authority in the
United States. i
§ 1277. It has been incidentally observed that, independent
of the general presumption of death arising from unex- „ .
plained absence abroad for seven years, certain facts death iu-
have been noticed by the courts as affording grounds from other
on which inferences of death, more or less strong, may
rest.2 Among these facts may be noticed : Presence on board a
ship known to have been lost at sea, the inference of death in-
creasing with the length of time elapsing since the shipwreck ; ^
2 M. & W. 894, in Ex. Ch. ; 2 Smith
L. C. 476, 492, 577, S. C. In that
case Ld. Denman, in pronouncing the
judgment of the court, observes: " In-
conveniences may no doubt arise, but
they do not warrant us in laying down
a rule, that the party shall be pre-
sumed to have died on the last day
of the seven years, which would man-
ifestly be contrary to the fact in al-
most all instances." 2 M. & W. 913,
914.
1 White ti. Mann, 26 Me. 370; Smith
t). Knowlton, 11 N. H. 197; Stouve-
nel V. Stephens, 2 Daly (N. Y.), 319 ;
McCartee i;. Camel, 1 Barbour Ch.
456; Whiting v. Nicholl, 46 111. 241;
Tisdale v. Ins. Co. 26 Iowa, 171 ; 28"
Iowa, 12; State v. Moore, 11 Ired. (N.
C.) L. 160 ; Spencer v. Roper, 13
Tred. (L.) 333; Hancock v. Ins. Co.
(Sup. Ct. Mo. 1876) Cent. L. J. Sept.
15, 1876.
The return of a person, presumed
to have been dead, after an absence
of over seven years, during which he
has not been heard from, avoids any
acts done by his representatives with-
out judicial authority. Mayhugh v.
Rosenthal, 1 Cincin. 492.
^ Best on Evidence (1870), § 409.
See K. V. Inhabitants of Twining, 2
B. & A. 386 ; E. V. Inhabitants of
Harborne, 2 A. & E. 540. In the
latter case Lord Denman said: "I
must take this opportunity of saying
VOL. II. ai
that nothing can be more absurd than
the notion that there is to be any
rigid presumption of law on such
questions of facts, without reference
to accompanying circumstances, such,
for instance, as the age or health of
the party. There can be no such
strict presumption of law. It may b'e
said : Suppose a party were shown to
be alive within a few hours of the
second marriage, is there no presump-
tion then ? The presumption of inno-
cence cannot shut out such a pre-
sumption as that supposed. I think
no one, under such circumstances,
could presume that the party was not
alive at the time of the second mar-
riage." Proof, therefore, that the
party was alive twenty-five days be-
fore the second marriage, was held to
overcome the presumption of inno-
cence ; which, on the other hand, pre-
vailed in R. V. Twining against proof
that the defendant had been heard of
alive one year previous to the mar-
riage. To the same effect is Lapsley
V. Grierson, 1 H. L. Cas. 498.
' See Cockburn, C. J., charge in
R. V. Orton, for an able exposition
of this presumption. Silliek v. Booth,
1 Y. & C. 117; Ommaney w. Stilwell,
23 Beav. 328 ; Patterson v. Black, 2
Park, on Ins. 919; Garry «. Post, 13
How. Pr. 118; Hudson v. Poindexter,
42 Miss. 304.
481
§ 1278.] THE LAW OF EVIDENCE. [BOOK HI.
exposure to peculiar perils, to which the death will be imputed
if the party has not been subsequently heard from ; ^ ignorance,
as to such person, after due inquiry, of all persons likely to know
of him if he were alive ; "^ cessation in writing of letters, and of
communications with relatives, in which case the presumption
rises and falls with the domestic attachments of the party.^
Thus, death may be inferred by a jury from the mere fact that a
party who is domestic, attentive to his duties, and with a home
to which he is attached, suddenly, finally, and without explana-
tion, disappears.* It is scarcely necessary to say that evidence
tending to rebut such presumption (e. g. proof that the alleged
deceased had been heard from by letter, or was personally warned
in a litigated suit), is always relevant for what it is worth.^
It must be also kept in mind that, in any view, death is a
matter of inference, not of demonstration, depending upon an
identification of remains as to which there is always a possibility
of mistake.^
Letters tea- § 1278. In all questions relating to the authority of
mTcoifai^ *^® parties to whom letters testamentary or adminis-
nroof of trative are granted, such letters are primd facie proof
death. of the death of the alleged decedent,'' and are conclusive
1 Watson V. King, 1 Stark. R. 121; « Supra, § 1274. Tisdale h. Ins. Co.
4 Camp. 272; White u. Mann, 26 Me. 26 Iowa, 170; Hancock v. Ins. Co.
361. 62 Mo. 121; Lancaster v. Ins. Co. 62
In the case of a missing ship, bound Mo. 12; Scheel v. Eidman, 77 111. 301 ;
from Manilla to London, on which the Eaton v. Tallmadge, 24 Wise. 217;
underwriters had voluntarily paid the Anderson v. Parker, 6 Cal. 197 ; Ew-
amount insured, the death of those on ing t--. Savary, 3 Bibb, 235. Supra, §
board was presumed by the preroga- 223.
tive court, after the absence of only * Hancock v. Ins. Co. 62 Mo. 26.
two years, and administration was See Doe d. Lloyd v. Deakin, 4 B. &
granted accordingly. In re Hutton, 1 A. 433. See the judgment of Lord
Curt. 595 ; Taylor's Ev. § 158. Ellenborough in Doe d. George v. Jes-
^ Pancoast v. Addison, 2 Har. & J. son, 6 East, 85; Eowe v. Hasland, 1
350. See Bentham's Trust, in re, L W. Black. 404; Bailey v. Hammond,
E. 4 Eq. 415 ; White 17. Mann, 26 Me, 7 Ves. 590; Doe d. France u. An-
361; Hall, in re, Wallace, J., 185; drews, 15 Q. B. 756.
Jackson v. Etz, 5 Cow. 314; McCar- ^ Keech v. Rinehart, 10 Penn. St.
teeu. Camel, 1 Barb. (N.Y.)Ch. 455; 240; Smith v. Smith, 49 Ala. 156.
Clarke v. Canfield, 15 N. J. Ch. 119; Supra, § 223.
Holmes v. Johnson, 42 Penn. St. 159 ; « See Whart. on Horn. § -640 ; Ud-
Spencer v. Roper, 13 Ired. 333; Ring- derzook's case, Ibid. Appendix,
house V. Keever, 49 111. 470. ' See fully supra, § 810 ; Thomp-
482
CHAP. XIV.J
PRESUMPTIONS: DEATH.
[§ 1278.
in cases where there is "no plea in abatement denying the death
of (the principal), and setting up the consequent invalidity of the
letters of administration." i Such letters, also, are conclusive as
to parties and privies.^ But a party, to whose estate letters
of administration have been taken out, on an erroneous belief
that he was dead, is not precluded by the letters from recovering
from third parties debts they have bond fide paid to the ad-
ministrator.8 And between strangers, when the fact of death
is to be proved, letters of administration to his estate are res
inter alios acta, and are inadmissible.*
son V. Donaldson, 3 Esp. 63; Moons
B. De Bernales, 1 Russ. 301 ; French
V. French, 1 Dick. 268; Newman o.
Jenkins, 10 Pick. 515 ; McRimm v.
Riddle, 2 Dall. 100; Cunningham v.
Smith, 70 Penn. St. 458; McNair u.
Ragland, 1 Dev. (N. C.) Eq. 533 ; Tis-
dale V. Ins. Co. 26 Iowa, 170; French
V. Frazier, 7 J. J. Marsh. 425.
' Sharswood, J., Cunningham v.
Smith, 70 Penn. St. 458, citing New-
man V. Jenkins, 10 Pick. 515; Mc-
Kimm v. Riddle, 2 Dall. 100 ; Axers
V. Musselman, 2 P. A. Browne, 115.
^ Carroll v. Carroll, 2 Hun, 609; S.
C. on App. 60 N. Y. 123 ; Randolph
V. Bayne, 44 Cal. 366 ; Lewis v. Ames,
44 Tex. 319.
' Supra, § 810.
* Ibid. ; Thompson v. Donaldson, 3
Esp. 63; Beamish, in re, 9 W. R. 475;
Jochumsen v. Suffolk Bk. 3 Allen,
87; Carroll v. Carroll, 60 N. Y. 123;
Buntin v. Duchane, 1 Blackf . 26 ; Eng-
lish V. Murray, 13 Tex. 366. See fully
supra, §§ 810, 811.
On this topic we have the follow-
ing from the New York court of ap-
La ; —
Letters testamentary and of ad-
ministration are conclusive evidence
of the authority of the persons to
whom granted, and are sufficient to
establish the representative character
of the plaintiff who assumes to sue by
virtue thereof. 2 R. S. 80, § 56 ; Bel-
den 17. Meeker, 47 N. Y. 307 ; Farley
V. McConnell, 52 Ibid. 630. So, also,
a will proved with a certificate of the
surrogate, and attested by his seal
of office, may be read in evidence
without further proof, and the record
of the same', and the exemplification
of the same by the surrogate, may be
received in evidence the same as the
original will would be if produced and
proved. 2 R. S. 58, § 15. The ob-
ject of this provision was to make the
certificate of the surrogate and the
record of the will or exemplification
mima facie evidence only. Vander-
poel V. Van Valkenburgh, 6 N. Y.
190, 199. In 2 Greenleaf's Evidence,
§ 339, it is said, that ' The proof of
the plaintiff's representative character
is made by producing the probate of
the will, or the letters of administra-
tion, which prima facie are sufficient
evidence for the plaintiff of the death
of the testator or intestate, and of his
own right to sue.' This is undoubt-
edly the true rule, and it will be found
upon examination that the authorities
cited upon this question relate mainly
to cases where the right of the admin-
istrator or executor to sue is involved,
or where the parties were connected
with the proceeding, interested in the
estate, and had their rights adjudi-
cated upon when the will was estab-
lished before the probate court. Such
are the cases cited from other states,
483
§ 1280.]
THE LAW OF EVIDENCE.
[book IU.
§ 1279. When simply the fact is known of the death of a
person capable of having had issue, death without issue
cannot be presumed.^ But such presumption may be
drawn from any circumstances indicating non-marriage
or childlessness.^
§ 1280. The Schoolmen, on the topic of survivorship, as well as
on most other topics they discussed, laid down a series
of presumptions of law, settling the various contingen-
cies they deemed probable. Presumptions of law of
this class, we need scarcely say, are no longer recog-
nized.^ The question of survivorship must be deter-
mined by all the facts in the particular case.* Hence in Massa-
" The English cases sustain the doc-
trine that letters of administration are
Death
without is-
sue not to
be pre-
sumed.
Presump-
tion of sur-
vivorship
in a com-
mon disas-
ter one of
fact.
with scarcely any exception, and none
of them can be regarded as sustaining
the broad principle that the probate
of a will of itself establishes the death
of the testator in any other case. The
general rule laid down in 1 Green-
leaf's Evidence, § 550, as to the effect
of the probate of a will, or the grant
of letters of administration, is also
liable to criticism, and is nof, I think,
sustained by the English cases which
are cited to support it. It may then
be considered as established by the
cases relied on by the plaintiff's coun-
sel that letters testamentary, and the
proofs of a will before a surrogate, are
only evidence in some proceedings
arising out of the will itself, and the
parties who claim under it or are con-
nected with it ; and they cannot, upon
their face, affect, or in any way coa-
trol the interest of parties who are
entirely disconnected with the pro-
ceedings before the surrogate, and not
within his jurisdiction. It follows,
therefore, that in an action of eject-
ment brought by the widow to recover
her dower, the probate of the will,
and the proceedings thereon, are not
competent evidence to prove the fact
that the husband is dead, which is the
very basis and foundation of the ac-
tion, and without proof of which it
cannot be maintained.
484
not evidence of death, and that it
must be otherwise proved. In Thomp-
son II. Donaldson, 3 Esp. 63, Lord
Kenyon held that letters of adminis-
tration are not sufficient proof of
death, and remarked : ' The death
was a fact capable of proof otherwise.'
See, also. Moons v. De Bernales, 1
Russ. 301." Miller, J., Carroll v.
Carroll, 60 N. Y. 123.
1 Kichards v. Richards, 15 East,
293 ; Stinchfield v. Emerson, 52 Me.
465 ; Sprigg v. Moale, 28 Md. 497 ;
Harvey w. Thornton, 14 111. 217; Hays
V. Tribble, 3 B. Mon. 106. See,
however, Doe v. Deakin, 3 C. & P.
402 ; 8 B. & C. 22, under name of
Doe V. Walley, where a jury were
permitted to presume that four elder
brothers, who had not been heard
from, had died without issue.
" King V. Fowler, 11 Pick. 302;
M'Comb V. Wright, 5 Johns. Ch. 263.
See Doe v. Griffin, 15 East, 293;
Webb's Est. in re, 5 Ir. R. Eq. 235.
' Phene's Trusts, in re, L. R. 5
Ch. 150 ; Barnett v. Tugwell, 31
Beav. 232 ; Coye v. Leach, 8 Mete.
(Mass.) 871; Smith v. Croom, 7 Fla.
81.
* Sillick V. Booth, 1 y. & C. 117,
126 ; Moehring v. Mitchell, 1 Barb.
CHAP. XIV.] PRESUMPTIONS : SURVIVOESHIP. [§ 1282.
chusetts, in a case where a father seventy years old, and his
daughter, thirty-three years old, were lost together in a steamer
foundering at sea, when of the circumstances of the loss nothing
was known, it was held that there could be no presumption of
survivorship, and that there was no evidence, therefore, on
which a party bringing suit could recover.^ In an English case,
somewhat similar in character, the court, unable to reach a satis-
factory conclusion, advised a compromise, which was effected.^
§ 1281. The rule that the actor, who seeks under such circum-
stances to recover on the basis of the survivorship of his decedent,
must fail from want of proof to make out his case, has been
further applied in a case in which a husband gave his whole
property to his wife, providing that, " in case my said wife shall
die in my lifetime," the estate should go to the children. The
testator, his wife, and children perished at sea, being swept from
the deck by the same wave. The Lord Chancellor (assisted by
Cranworth, B., Wightman, J., and Martin, B.) held that there
was no evidence to prove that the wife survived the husband, and
that consequently the plaintiff, whose case rested on the assump-
tion of the wife's survivorship, could not recover.^ The same
conclusion was afterwards reached,* where the husband and
wife and their two children perished at sea in the same storm ; ^
and where ^ a husband and wife were killed in a railway colli-
sion, their dead bodies being found together two days after death.
§ 1282. Upon a critical survey of the cases, we may conclude
the law to be as follows : ^ (1.) Where persons ranging between
infancy and extreme old age perish by a common catastrophe,
and where there is no information as to either of them subse-
quent to the shock, no such presumption can be drawn from dif-
ferences of age or sex as will enable a court to give judgment
for a plaintiff seeking to recover on the claim of survivorship.
(2.) At the same time, in consistency with the rulings above
Ch. 264 ; Pell v. Ball, 1 Cheves Ch. « See, also, to same effect, Robin-
99 ; Smith v. Groom, 7 Fla. 81. son v. Gallier, 2 Wood's C. C. 478 ;
^ Coye V. Leach, 8 Mete. 371. S. C. in South. L. R. Oct. 1876.
= R. V. Hay, 2 W. Bl. 640. See « Wheeler, in re, 31 L. J. P.M. &
Fearne's Posth. Works, 38. A. 40.
» Underwood v. Wing, 4 De G., M. ' See Whart. & St. Med. Jur. 3d
& 6. 633. ed. § 1045.
* Wing !). Angrave, 8 H. of L. Gas.
183. 485
§ 1283.] THE LAW OF EVIDENCE. [BOOK III.
given, if one of the parties is in extreme infancy, or in very ad-;
vaneed and decrepit old age, we may assume, as a presumption
of fact, that such person died before another not so disabled, in
all cases where there was an opportunity to struggle for life.
(3.) The law only refuses to permit a presumption of fact of
this class to be drawn where there is no evidence at all as to the
parties subsequent to the shock. If there is any evidence, no
matter how slight, leading to the conclusion that one of the par-
ties was seen alive subsequent to a period when the other was
probably dead, this is ground on which a jury may find surviv-
orship.i
§ 1283. The length of time after which it is to be presumed
Presump- *^^* ^ ®^^P ' ^l^icii ^^^ been unheard of, is lost, is to be
tion of loss determined by the inferences to be drawn from the
of ship ■'
from lapse concrete case.^ As a basis of proof, mere rumors are
not sufficient ; there must be reliable information.^ If
there are any indications of foundering, — e. g. a violent storm at
a particular point where the ship was, her unseaworthiness, rem-
nants of wreck, — the loss may be put earlier than would be
permissible if the ship had not been heard of at all.* But there
must be proof of the ship having left port.^
^ Mr. Best (Evidence, § 410) states the tribunal as a thing unascertaina-
the rule as follows : — ble, so that for all that appears to the
" When, therefore, a party on whom contrary both individuals may have
the onus lies of proving the survivor- died at the same moment."
ship of one individual over apother, ' Green ». Brown, 2 Str. 1199;
has no evidence beyond the assump- Thompson v. Hopper, 6 E. & B. 172;
tion that, from age or sex, that indi- Newby v. Reed, 1 Park. Ins. 148 ;
vidua! must be taken to have struggled Oppenheim v. Leo Woolf, 3 Sandf . Ch.
longer against death than his compan- 571 ; Biceard v. Shepherd, 14 Moore
ion, he cannot succeed. But then, on P. C. 471 ; Houstman v. Thornton,
the other hand, it is not correct to in- Holt N. P. C. 243 ; Twemlin v. Os-
fer from this, that the law presumes win, 2 Camp. 85.
both to have perished at the same mo- ' Koster v. Reed, 6 B. & C. 22.
ment : this would be establishing an * Sillick v. Booth, 1 Y. & C. 117.
artificial presumption against mani- See charge of Chief Justice Cock-
fest probability. The practical conse- burn, in R. v. Orton, as to loss o£ The
quence is, however, nearly the same ; Bella.
because if it cannot be shown which ^ Koster v. Innes, R. & M. 333 ;
died first, the fact will be treated by Cohen ». Hinckley, 2 Camp. 51.
486
CHAP. XrV.] PRESUMPTIONS. [§ 1284.
IV. PRESUMPTIONS OF UTNIFOEMITY AND CONTINUANCE.
§ 1284. When a juridical relation is once established, it is
enough, generally, for a party relying on such relation „,
to show its establishment, and the burden is then on party seek-
the opposite party to show that the relation has ceased prove
to exist. It has frequently been said, that in such cases existfng°
the law presumes the continuance of the relation. But '=°°'^*"'°'-
the proposition, that there is no presumption of law in favor of
a condition, is not convertible with the proposition, that there
is a presumption of law against such condition. There is in-
dubitably no presumption of law in favor of the change of an
established legal relation, and consequently a party seeking to
assail such relation has the burden on him to make good his case.
I claim under a will, for instance ; but after proving the will,
though the party attacking the will has the burden on him, sup-
posing the will to be duly proved, to show a superior title, yet
this is a matter only of burden of proof, and there is no such pre-
sumption of law in my favor as will interfere with the ultimate
adjudication of the case on the merits. A debt was due me a
year ago ; I prove this, and the defendant has the burden on him
to prove payment ; but when the question is whether such pay-
ment is proved, this question is not affected by any presumption
of law drawn from the fact that a year ago the debt was due.^
From this it follows that when I once establish a juridical rela-
tion in itself not so limited as to time as to have expired before
suit instituted, it is not necessary for me to prove the continu-
ance of the relation. The burden is on my antagonist to prove
that the relation has ceased to exist ; though, as has just been
said, there is no presumption of law against him which, when the
evidence is all in, can outweigh any preponderance in such evi-
dence in his favor.2 We are therefore to understand that the
^ See L. 12, 25, § 2; D, L. 1, C. de in the following as well as in other
probat. See supra, § 354 et seg. opinions : —
" See Heflfter, App. to Weber, 280
Scales V. Key, 11 A. & E. 819
Mercer v. Cheese, 4 M. & Gr. 804
" A partnership once established is
presumed to continue. Life is pre-
sumed to exist. Possession is pre-
Price V. Price, 16 M. & W. 232. It sumed to continue. The fact that a
is in this sense that we are to under- man was a gambler twenty months
stand the term " presumption,'' as used since, justifies the presumption that
487
§ 1284.] THE LAW OF EVIDENCE. [BOOK HI.
presumption of continuance, as it is called, is simply a presump-
tion of fact, whose main use is in designating the party on whom
lies the burden of pi'oof. In this sense we are justified in hold-
ing that the continuance of an existing condition is a presump-
tion of fact, dependent for its intensity on the circumstances of
the particular case. The burden is on the party seeking to show
change, and if he fails to show it, he loses his case.^ But the
question is one dependent upon the relation of conditions to time.
A state of war, for instance, existing yesterday, will be presumed
to continue to-day ; but it will not be presumed to continue after
the lapse of three years.^ In fact, so far from continuance being
a legal presumption, in things dependent upon human purposes,
the presumption, in the long run, is the other way. Man never
continueth in one stay. Of what will happen ten years hence,
the only presumption that can be offered with anything like cer-
tainty is, that there will be a change, at least in the actors in
the drama, from what is happening to-day. The time required
for the change depends upon the nature of the object. Fifty
years ago, the houses in one of our western cities did not exist.
Ten minutes ago, the man whom I now see standing in front of
one of those houses was in his counting-room, or in the cars. We
he continues to be one. An adulter- Mete. 199 ; Brown v. King, 5 Mete.
ous intercourse is presumed to con- 173 ; Gelston v. Hoyt, 1 Johns. Ch.
tinue. So of ownership and non-res- 543 ; Wright v. Ins. Co. 6 Bosw. 269;
idence. Walrod u. Ball, 9 Barb. 271; Leport v. Todd, 32 N. J. L. 124 ;
Cooper V. Dedrick, 22 Ibid. 516; Smith Bell v. Young, 1 Grant (Pa.), 175; Er-
V. Smith, 4 Paige, 432 ; McMahon v. skine v. Davis, 25 111. 251 ; Murphy-
Harrison, 2 Seld. 443; Sleeper v. Van v. Orr, 82 111. 489; Goldie v. McDon-
Middleswortli, 4 Denio, 431; Nixon u. aid, 78 HI. 605; Montgomery Plank
Palmer, 10 Barb. 175. This analogy R. v. Webb, 27 Ala. 618; Barelli v.
is fairly applicable to the present case, Lytle, 4 La. An. 558 ; Swift v. Swift,
and justifies the admission of this evi- 9 La. An. 117 ; Sullivan u. Goldman,
dence." Hunt, C, Wilkins u. Earle, 19 La. An. 12; Mullen o. Pryor, 12
44 N. Y. 1 72. See, also, R. v. Lil- Mo. 307; O'Neil v. Mining Co. 3 Nev.
leshall, 7 Q. B. 158. 141. As to continuance of partner-
1 Bell V. Kennedy, L. R. 3 H. L. ship, see Clark v. Alexander, 8 Scott
307 ; Smout v. Ibery, 10 M. & W. 1 ; N. R. 161 ; Clark v. Leach, 32 Beav.
Jackson v. Irvin, 10 Camp. 60; Brown 14. As to continuance of agency, see
V. Burnham, 28 Me. 38 ; Eames v. Whart. on Agency, § 94 ; Pickett tf.
Eames, 41 N. H. 177; Farr t). Payne, Packham, L. R. 4 Ch. Ap. 190; Ryan
40 Vt. 615 ; Martin v. Ins. Co. 20 v. Sams, 12 Q. B. 460.
Pick. 389 ; Randolph v. Easton, 23 ^ Covert v. Gray, 84 How. (N. Y.)
Pick. 242 ; Kilburn v. Bennett, 3 Pr. 450.
488
CHAP. XIV.]
PRESUMPTIONS : CONTINUANCE.
[§ 1286.
cannot, therefore, speak of a legal presumption of continuance
when, if we are to draw any inference that would be perma-
nently applicable, it would be that of change. And yet, for
short calculations, so far as is consistent with the inductions of
social science, we are justified in saying, as a means for adjust-
ing the burden of proof, that the presumption is so far in favor
of continuance, that the burden is on a party who seeks to show
a change from a condition which, when we last heard from it,
was settled, and which, from the nature of things, would prob-
bably exist to-day unchanged.^
§ 1285. For the purpose, in like manner, of determining the
burden of proof, we may hold, as a presumption of fact. Residence
more or less strong according to the concrete case, that ?„ be'^n-
a party is presumed to continue to reside in the last t'i"0"s-
place known to have been accepted by him as such residence.^
The same inference is applicable to the settlement of a pauper,^
and to domicil.*
§ 1286. So when occupancy is proved, whether of real or per-
■ Among the illustrations of the
proposition in the text may be men-
tioned the following : —
Where a jury found that a certain
custom existed up to the year 1689,
the court held that in the absence of
all evidence of its abolition, it was to
be concluded that the custom still sub-
sisted at the time of the trial in 1840.
Scales V. Key, 11 A. & E. 819.
It has also been held in England, in
a settlement case, that where a son,
though long since arrived at manhood,
has continued unemanoipated, as in
the days of his infancy, this state
would be held to continue, unless there
be some evidence to the contrary. R.
V. Lilleshall, 7 Q. B. 158, explaining
R. V. Oulton, 5 B. & Ad. 958 ; 3 N.
& M. 62, S. C. So, the appointment
of a party to an official situation will
(R. V. Budd, 5 Esp. 230, per Ld. El-
lenborough ; Pickett v. Packham, 4
Law Rep. Ch. Ap. 190), at least for
a reasonable time, be presumed to
continue in force.
A partnership, also, is presumed to
continue for a reasonable period, until
the contrary is shown. Alderson v.
Clay, 1 Stark. 405 ; Clark v. Alexan-
der, 8 Scott N. R. 161.
So, if a debt be shown to have once
existed, its continuance will be pre-
sumed, in the absence of proof of pay-
ment, or some other discharge. Jack-
son V. Irvin, 2 Camp. 50, per Ld. El-
lenborough.
2 Bell V. Kennedy, L. R. 3 H. L.
307 ; Whicker v. Hume, 7 H. of L.
124; Church v. Rowell, 49 Me. 367;
Littlefield v. Brooks, 50 Me. 475 ;
Shaw V. Shaw, 98 Mass. 158 ; Ran-
dolph V. Easton, 23 Pick. 242 ; Kil-
burn V. Bennett, 3 Mete. 199 ; First
Nat. Bk. V. Balcom, 35 Conn. 351 ;
Goldie V. McDonald, 78 111. 605; Dan-
iels W.Hamilton, 52 Ala. 105; Prather
V. Palmer, 4 Ark. 466; Swift v. Swift,
9 La. An. 117; Whart. Confl. of Laws,
§ 56.
» R. V. Budd, 5 Esp. 230.
* Whart. Confl. of Laws, § 56.
489
§ 1287.] THE LAW OF EVIDENCE. [BOOK HI.
sonal property, we may infer, for the like purpose, as a pre-
Occupanoy sumption of fact, that the occupation is continuous ; the
to bera^n- inference varying with the person occupying, the thing
tinuous. occupied, and the place and period of occupation.^ For
the same purpose, also, ownership is presumed to continue until
alienation.^
§ 1287. We have already noticed that in civil, as well as in
criminal issues, the character of a party is presumed to be good,
and that the burden is on those by whom it is assailed.^ We
have also seen that when, in particular issues, character is admis-
sible to increase or reduce damages, character is regarded as con-
vertible with reputation ; and the inquiry is, not what are the
peculiar traits of the party, in the opinion of the witness exam-
ined, but what is the reputation of the party in the community
Habit pre- in which he lives.* In questions of identity, however,
be'con-'" t^® habits of individuals may come up for comparison,
tinuous. j^jj^ i^ jjjg^y become a material question whether a
claimant has the characteristic traits of the person with whom he
pretends to be identical. And the admissibility of evidence of
this class rests on the psychological assumption that habits be-
come a second nature, and that special aptitudes are not un-
learned, and special characteristics are not extinguished.^ But
questions of identity are an exception to the general rule, which
is, that evidence of habit is inadmissible for the purpose of show-
ing that a particular person did or did not do a particular thing.*
^ Smith V. Stapleton, Plowd. 193; seems clear that, ordinarily, evidence
Winkley v. Kaime, 32 N. H. 268 ; that the defendant entered into con-
Currier V. Gale, 9 Allen, 522; Rhone tracts with third persons in a particu-_
V. Gale, 12 Minn. 54. lar form, would not be admissible in
' Magee v. Scott, 9 Cush. 148. tending to show that he had made a
* Supra, § 55. similar contract with the plaintifE.
* Supra, § 149. ' The fact of a person having once or
' For a series of acute observations many times in his life done a pe- tiou-
on this principle, see the charge of lar act in a particular way,' does not
Cockburn, C. J., in R. v. Orton. prove ' that he has done the same
' " Each separate and individual thing in the same way upon another
case must stand upon, and be decided and different occasion.' See HoUing-
by, the evidence particularly applica- ham v. Head, 4 C. B. N. S. (93 E. C.
ble to it. Although ' it is not easy in L.) 388; Jackson v. Smith, 7 Cowen,
all cases to draw the line and to de- 717; Spenceley v. DeWillott, 7 East,
fine with accuracy where probability 108; Filer v. Peebles, 8 N. H. 226;
ceases and speculation begins,' it Wentworth v. Smith, 44 N. H. 419;
490
CHAP. XIV.] PRESUMPTIONS : PERMANENCE OF HABIT. [§ 1290.
On the other hand, when a series of acts of a particular person
are in evidence, a litigated act imputed to him may be tested
by comparison with the acts proved to emanate from him.^ It
has also, as we have seen ,2 been held admissible to prove habit
or system in order to rebut the defence of accident, or to infer
tcienter. We have a right, again, to infer, as a presumption
of fact, that mental conditions continue unchanged, unless there
be reasons to infer the contrary. It is on this ground that we
infer the continuance of sanity and of chronic insanity ; ^ and of
purposes once deliberately formed.* The habit, also, of a writer,
in using words in a particular sense, may be shown in certain
cases of latent ambiguity.^
§ 1288. Coverture, once proved, is inferred to continue, this
being a presumption of fact, varying with the concrete Continu-
. •' ° anoe of
case. coverture.
§ 1289. The same inference is applied to solvency, ' and to
insolvency, each *of which is presumed (as a presump-
tion of fact) to continue until the contrary is proved.^ and insol-
An adjudication of bankruptcy may, within a limited ^"""^y"
range of time, afford an inference of insolvency.®
§ 1290. Whether the value of a thing at a particular period
may be inferred from its value at other periods de- „ ,
•' . ^ . Value to
pends upon the circumstances of the case. An article be infer-
whose value fluctuates greatly cannot, by proof that it circum-
had a certain price a year ago, be presumed to have the °'*°°*^-
Holcombe v. Hewson, 3 Campb. 391 ; the court." Agnew, C. J., Coxe v.
True V. Sanborn, 27 N. H. 383 ; Lin- Derringer, 3 Weekly Notes, 103.
coin V. Taunton C. M. Co. 9 Allen, ^ Supra, § 38.
181; Smith v. Wilkins, 6 C. & P. 180; » See supra, §§ 1252, 1253.
Phelps !i. Conant, 30 Vt. 277." Delano * Whart. on Homicide, § 440.
V. Goodwin, 48 N. H. 205. ^ Supra, § 962.
^ See argument as to comparison of ' Erskine v. Davis, 25 111. 251.
hands, supra, § 717. ' Wallace v. Hull, 28 Ga. 68.
In a Pennsylvania case, decided in ^ Brown v. Burnham, 28 Me. 38.
1876, we have the following : " It was See Eames v. Eames, 41 N. H. 177;
a very natural conclusion that a man Burlew v. Hubbell, 1 Thomp. & C. (N.
who always paid his taxes promptly in Y.) 235 ; Body v. Jewsen, 33 Wise,
biennial period, previous to the time 402; Ramsey v. McCanley, 2 Tex.
of sale, would have paid them in time 189. The presumption of insolvency
in 1832 and 1833. This, therefore, from a return of nulla bona is else-
was a question for the jury, and not where noticed. Supra, § 834.
8 Saflford v. Grout, 120 Mass. 20.
491
§ 1292.] THE LAW OF EVIDENCE. [BOOK lU.
same value now.^ On the other hand, as to a thii g whose value
is more or less constant, proof of recent price in the vicinity may
be material in enabling the price at the period in litigation to be
adjusted.2 A remote period, under difiEerent conditions, cannot
in any view be taken as a standard.^ Nor can peculiar associa-
tions, likely to give a factitious value, . be taken into account.*
Distant markets cannot be consulted in proof of value ; ^ though
it is otherwise if the markets be in any way inter-dependent,^
or sympathetic.^
§ 1291. Things of a different species cannot be taken into
consideration in determining value ; ^ nor should much weight be
attached to proof that prices had been offered in private negotia-
tions by third parties ; such evidence being open to fraud, and at
the best, indicating only private opinion, not the opinion of a
market.^ And while hearsay is admissible to prove the state of
a market, ■"* the value of an article, or the extent of a party's in-
come, cannot ordinarily be inferred from the record of a tax
assessment. This is the act of a third party, who must be called
if obtainable.il
Foreign 8 1292. In a previous chapter it has been shown ^
law pre- " . .
sumed to that the settled rule is that foreign states, whose iuris-
correspond , . , . . . ,
with our prudence is derived irom the same common source as
own.
^ Campbell v. U. S. 8 Ct. oE CI. gomery, 119 Mass. 114; Freyman v.
240; Kansas Stockyard Co. v. Couch, Knecht, 78 Penn. St. 141; Shenango
12 Kans. 612; Waterson v. Seat, 10 v. Braham, 79 Penn. St. 447; Baber
Fla. 326. Supra, §§ 39, 447, 448. v. Rickart, 52 Ind. 594; McLaren v.
" The Pennsylvania, 5 Ben. 253; Birdsong, 24 Ga. 265. See as to
White V. B,. R. 30 N. H. 188 ; French proof of value, supra, §§ 446-450.
V. Piper, 43 N. H. 439; Paine v. Bos- « Harrington v. Baker, 15 Gray,
ton, 4 Allen, 168;.Benham v. Dun- 538 ; Greely v. Stilson, 27 Mich. 153.
bar, 103 Mass. 365; Dixon i;. Buck, 42 « Siegbert i>. Stiles, 39 Wise. 533.
Barb. 70; Columbia Bridge t>. Geisse, ' Cliquot's Champagne, 3 Wall.
38 N. J. L. 39. See Potteiger ». Huy- 114; Kermott v. Ayer, 11 Mich. 181;
ett, 2 Notes of Cas. 690; Abbey v. Sisson v. R. R. 14 Mich. 489; Com-
Dewey, 25 Penn. St. 413; East Brandy- stock v. Smith, 20 Mich. 838.
wine R. R. v. Ranck, 78 Penn. St. 454. » Gouge v. Roberts, 53 N. Y. 619.
» Palmer v. Ferrill, 17 Pick. 58; » Perkins w. People, 27 Mich. 386.
McCrackon v. West, 17 Ohio, 16. i" Supra, § 449.
* Davis V. Sherman, 7 Gray, 291; " Flint v. Flint, 6 Allen, 34; Ken-
Fowler V. Middlesex, G Allen, 92. derson v. Henry, 101 Mass. 152 ;
See, generally, Kent v. Whitney, 9 Raynes v. Bennett, 114 Mass. 424.
Allen, 62 ; Boston R. R. v. Mont- " See supra, § 314.
492
CHAP. XIV.] PRESUMPTIONS : SIMILARITY OF LAW. [§ 1293.
ours, are presumed to possess laws materially the same as our
own. This presumption, however, does not extend to states
whose jurisprudence springs from a different system, nor can we
impute to a foreign jurisprudence idiosyncrasies we know to be
peculiar to ourselves. But in any view, if we wish to prove a
foreign law as distinguished from our own, we must prove such
law as a fact.^
§ 1293. The constancy of natural laws is to be assumed until
the contrary be proved. The seasons, for instance, congta„g
pursue, in the lone run, a regular course ; and we may °^ nature
, „ ,1 , • . , 1 T . presumed.
therefore presume that winter is cold and summer is
warm ; though this is open to proof that in an exceptional sea-
son the winter is comparatively mild and the summer is com-
paratively cool. It may be that in a particular winter, even in a
northern climate, we may have no snow-storms ; yet we infer
that what is usual is continuous, and not only do we take each
fall the steps that will enable us to shelter ourselves against
snow, but we assume as to any given past winter that there fell
in it the usual quantity of snow. So with regard to ice. In
New England, for instance, ice crops are usually formed each
winter, and these may be stored if due diligence be shown ; and
on a suit based on lack of diligence in this respect, it would be
inferred, until the contrary was shown, that the winter was
cold enough to produce the usual quantity of ice. Hence it is
that casus, or the extraordinary interruption of apparent phys-
ical laws, must be affirmatively shown by the party alleging
such interruption ; and until such proof, that which is usual is
deemed to be constant.*^ In order, however, that evidence based
on the constancy of nature should be received, similarity of con-
ditions should be first established. Thus in an action to recover
damages for injury caused by removing stones from a river, re-
sulting in the washing away the plaintiff's land, it has been held
not error to exclude evidence of the effects of the action of the
water at' another place and time, the forces and surroundings not
being first shown to be alike.^
' Supra, § 314 rtsey. And see Com. 110. As to inferences from system, see
ii.Kenney, 120 Mass. 387. §§39, 268, 448, 1346; Mill's Logic, ch.
" See cases supra, § 363. xiv.
' Hawks u. Inhabitants, 110 Mass.
493
§ 1295.]
THE LAW OF EVIDENCE.
[book in.
§ 1294. The ordinary physical sequences of nature are to be
Physical contemplated by us as probable ; and hence we are to
toTe^pre- presume them as existing among the contingencies to
sumed. be expected by reasonable men. Among these we
may specify the falling of water from a higher to a lower level ; i
the spreading of fire in inflammable material ; ^ the continuous
movement of a railway train over the track, and the fact that
the shock on meeting an obstacle is in proportion to momentum j^
and the effect of water in extinguishing fire.*
§ 1295. So also we may assume, as a presumption of fact, that
, animals, as a general rule, will act in conformity with
Soofprob- ' = m, • • 1 -ii
able habits their nature." Thus it is probable that cattle will
anima a. ^^^^^ . o ^j^^^^ horses wiU take fright at extraordinary
noises and sights ; ^ and that certain kinds of dogs will worry
sheep.8 Xhe habits and temper of animals, however, it is said,
1 Collins V. Middle Level Com. L.
R. 4 C. P. 279.
2 L. 30, § 3 ; D. ad leg. Aquil.;
Tuberville u. Stamp, 1 Salk. 13; Fil-
liter V. Phippard, 11 Q. B. 347; Smith
V. R. R. L. R. 5 C. P. 98; Perley v.
R. R. 98 Mass. 414 ; Higgins v. Dewey,
107 Mass. 494; Calkins v. Barger, 44
Barb. 424; Collins v. Groseclose, 40
Ind. 414 ; Gagg v. Vetter, 41 Ind. 228 ;
Hanlonu. Ingram, 3 Iowa, 81; Averitt
H. Murrell, 4 Jones L. (N. C.) 223 ;
Cleland v. Thornton, 43 Cal. 437.
» See R. V. Pargeter, 3 Cox C. C.
191 ; Caswell v. R. R. 98 Mass.194;
Wilds V. R. R. 29 N. Y. 315; Jones
V. R. R. 67 N. C. 125.
* Metallic Comp. Co. v. R. R. 109
Mass. 277.
5 See Carlton ti. Heseox, 107 Mass.
410 ; Rowe v. Bird, 48 Vt. 578.
' Lawrence v. Jenkins, L. R. 8 Q.
B. 274.
' R. V. Jones, 8 Camp. 230 ; Hill v.
New River Co. 15 L. T. N. S. 555 ;
Lake v. Milliken, 62 Me. 240; Jones
V. R. R. 107 Mass. 261; Judd u. Par-
go, 107 Mass. 265 ; People v. Cunning-
ham, 1 Denio, 524 ; Congreve v. Mor-
494
gan, 18 N. Y. 84 ; Loubz v. Hafner, 1
Dev. (N. C.) L. 185 ; Moreland v. Mit-
chell County, 40 Iowa, 394, quoted
supra, § 437.
In Darling v. Westmoreland, 52 N.
H. 401, it was held, in an action
against a town for an obstruction, at
which a horse took fright, admissible
to prove that other horses had taken
fright at the same obstruction. Contra,
Hawks V. Charlemont, 110 Mass. 110.
In Clinton w. Howard, 42 Conn. 295,
and Moreland v. Mitchell Co. 40 Iowa,
394 (see supra, § 735), it was held that
it was admissible to prove that certain
obstructions were likely to frighten
horses.
8 See Read v. Edwards, 17 C. B.
N. S. 245; Marsh v. Jones, 21 Vt.
378; Woolf V. Chalker, 31 Conn. 121;
Swift V. Applebone, 23 Mich. 252.
When the character of an animal
comes into question, the general infer-
ence is, that he will follow the natural
bent of the species to which he belongs.
See question discussed fully in Whart.
on Neg. § 923-5. But when the bur-
den is on a party to prove a scienter
in the owner of a mischievous animal,
CHAP. XIV.]
PRESUMPTIONS : REGULARITY.
[§ 1297.
cannot be shown by proof of habits or temper of particular ani-
mals of the same species.^
§ 1296. Taking men in bodies, and contemplating their action
as a mass, there are certain incidents which may be re- go of con-
garded as probable, and which, under certain condi- ^"nf^
tions, are presumable.^ Thus it is to be inferred that masses.
persons will be passing a thoroughfare in such numbers as to
make it dangerous to discharge at random a gun towards such
thoroughfare ; ^ that a sudden alarm, resulting in injury, will be
produced by a shock of any kind given to a crowd ; * and that
persons in fright will act instinctively and convulsively.*
V. PRESUMPTIONS OF REGULARITY.
§ 1297. When a man and woman have lived together as man
and wife, and have been recognized as such in the com- ,, .
. . . . . . Marriage
munity in which they live, their marriage will be held presumed
primd facie conformable, so far as concerns its solem- been regu-
nities, with the practice of the lex loci contractus.^ If
a marriage is shown to have taken place, then the law presumes
regularity, until the contrary be proved.' This " presumption
it is admissible to put in evidence par-
ticular facts ; Worth v. Gilling, L. R.
2 C. P. 1 ; Judge v. Cox, 1 Stark. R.
285 ; Kittredge v. Elliott, 16 N. H. 77;
Whittier v. Franklin, 46 N. H. 23 ;
Arnold v. Norton, 25 Conn. 92 ; Buck-
ley V. Leonard, 4 Denio, 500 ; Cocker-
ham V. Nixon, 11 Ired. L. 269; Mc-
Caskill V. Elliott, 5 Strobhart, 196;
as well as general reputation ; Whart.
on Neg. § 924 ; but as to general rep-
utation, see contra, Heath v. West, 26
N. H. 191.
* Collins V. Dorchester, 6 Cush.
396; Hawks v. Charlemont, 110 Mass.
110. See, however, Darling v. West-
moreland, 52 N. H. 401.
' See Whart. on Neg. § 108.
' See People v. Fuller, 2 Parker C.
R- 16 ; Barton's case, 1 Stra. 481 ;
Triscoll V. Newark Co. 37 N. Y. 637;
Sparks v. Com. 3 Bush, 111 ; State v.
Vance, 17 Iowa, 138; Bizzellu. Book-
er, 16 Ark, 308.
* Scott V. Shepherd, 2 W. Black.
892; Guille v. Swan, 19 Johns. 381 ;
Fairbanks v. Kerr, 70 Penn. St. 86.
5 R. V. Pitts, C. & M. 284; Adams
V. R. R. 4 L. R. C. P. 739 ; Sears v.
Dennis, 105 Mass. 310 ; Coulter v.
Exp. Co. 5 Lansing, 67; Buel v. R.R.
31 N. Y. 314; Frink v. Potter, 17 111.
406; Greenleaf i'. R. R. 29 Iowa, 47.
' Supra, § 84 ; Harrod v. Harrod, 1
K. & J. 15; R. V. Brampton, 10 East,
302; Redgrave «. Redgrave, 38 Md. 93.
' In an English prosecution for big-
amy, in 1876, it was alleged that the
first marriage was invalid, having been
contracted under these circumstances :
While the parish church was under
repair, divine service had been several
times performed by a clerk in holy
orders in a chamber at a private hall,
and the marriage of the prisoner with
his wife was solemnized there. There
was no evidence that the chamber at
the hall was licensed for the perform-
495
§ 1297.]
THE LAW OF EVIDENCE.
[book III.
of law," as was said by Lord Lyndhurst,i ^nd approved by Lord
Cottenham,2 "is not lightly to be repelled. It is not to be
broken in upon or shaken by a mere balance of probability." »
Thus, in support of a plea of coverture, a certificate of the de-
fendant's marriage in a Roman Catholic chapel according to the
rites of that church, with evidence of subsequent cohabitation,
has been held primd facie proof of a valid marriage under 6 & 7
Will. 4, c. 85, without proof that the solemnities prescribed by
the statute were employed.* In short, wherever a marriage has
been solemnized, the law strongly presumes that all legal requi-
sites have been complied with.^ It has been said, however, that
this presumption will not be allowed to operate in suits for dam-
ages against alleged adulterers.^ And when concubinage is once
proved, the inference is that it continues ; and consequently, in
such case, marriage must be substantively proved, if set up.'^
ance of divine service or marriage.
Held, that the presumption was that
the place was duly licensed, and that
the marriage was valid. Lush, J.,
said: " The fact of the marriage ser-
vice having been performed by a per-
son acting in a public capacity is
primd facie evidence as to the per-
son's legal capacity to perform the
service. So the fact of its having
been performed in a place by a person
acting in such capacity is also prima
facie evidence that the place was prop-
erly .licensed for marriages. The pre-
sumption covers both the person and
the place."
1 Morris v. Davies, 5 CI. &Fin. 163.
" Piers V. Piers, 2 H. of L. Cas. 362.
8 Supra, § 84; infra, § 1818; and
see Harrison v. Southampton, 22 L. J.
Ch. 722; Breadalbano case, L. R. 1 H.
L. Sc. 182 ; Cunningham v. Cunning-
ham, 2 Dow, 507; Campbell u. Camp-
bell, L. R. 1 Sc. App. 193.
* Sichel t». Lambert, 15 C. B. N. S.
781.
^ Smith u. Huson, 1 Phill. 294.
In De Thoren v. Attorney General,
L. R. 1 App. Cas. H. L. (Div.) 686,
496
it was ruled by the lord chancellor
(Lord Cairns), that the presumption
of marriage is much stronger than the
presumption in regard to other facts.
Hence when a matrimonial ceremony
took place in Scotland, the parties
being ignorant of an impediment, and
afterward removed, and when, believ-
ing themselves to be validly married,
they lived together continuously for
years as husband and wife, and were
regarded as such by all who knew
them, the marriage was held to have
been established by the force of habit
and repute, without any proof of mut-
ual consent, by verbal declaration.
The inference to be drawn was infer-
ence that the matrimonial consent was
interchanged as soon as the parties
were enabled, by the removal of the
impediment, to enter into the contract.
The onus of rebutting a marriage by
habit and repute, it was said, is thrown
on those who deny it. See remarks
supra, §§ 83, 84, 298, 1096.
» Catherwood u. Caslon, 13 M. &
W. 261 ; though see Rooker v. Rooker,
33 L. J. Pr. & Mat. 42.
' Lapsey v. Grierson, 1 H. L. Ca.
CHAP. XIV.]
PRESUMPTIONS : LEGITIMACY.
[§ 1298.
§ 1298. That a person, born in a civilized nation is legitimate,
is a presumption of law, to be binding until rebutted.^ Legitimacy
A fortiori is a child born during wedlock, before any tion'oHaw"
498; Clayton v. Wardell, 4 N. Y.
230; CaujoUe )'. Ferrie, 23 N. Y. 106;
Foster v. Hawley, 8 Hun, 68; L. K. 8
Ch. 383; 25 W. R.453; 34 L. T.477.
In Vane v. Vane, heard before the
Vice Chancellor Malins, on'Nov. 1876,
the contention of the plaintiff was
that he was the oldest legitimate son
of his late father. Sir F. F. Vane; and
that an older brother, since deceased,
leaving a son, who was defendant, was
born before his parents' marriage.
The vice chancellor, in the teeth of
the declarations of Lady Vane, in her
extreme old age, decided in favor of
the legitimacy of the older brother.
"We have no doubt," says an in-
genious criticism on this ruling, ' ' the
vice chancellor decided rightly in fa-
vor of the possessor of the title and
estates, but he was obviously very
much influenced by the excessive un-
usualness and romantic character of
the plaintiff's story. Here, he says,
is a man who declares that his own
mother and father had palmed off an
illegitimate child on the world as le-
gitimate, and other relatives have as-
sisted, and how monstrous a thing that
is to believe! "
.... " A man of fashion," such
is the allegation, " hating his distant
heir, or devoutly attached to his mis-
tress, determines that his next son by
her shall be his heir, promises to
marry her to legitimatize the child,
and when it is born prematurely, con-
ceals the fact for six weeks. The
marriage takes place at the end of
three weeks from the birth, that is,
as soon as the mother is strong
enough, and for the rest of his life
the father acknowledges the son as
his heir, his excuse in his own mind
VOL. n. 32
being that he intended to be mamed
before the child could be born. Nev-
ertheless, he was so anxious about
possible ultimate detection, that he
took the excessively unusual step in
a family of the second rank, of ob-
taining a private act of parliament
for the settlement of his estates, in
which act the heirship of his son is
incidentally declared. The mother,
however, in extreme old age, in some
anger with her son, or out of some
regard for the law, declares that the
baronet, like all born before him, was
illegitimate. That it was not so, the
vice-chancellor has decided no doubt
rightly; but taken in itself, where was
the enormous improbability of the
story ? That Sir F. F. Vane should
so act ? Why in the last generation
one of the Wortley Montagues adver-
tised to all the world his intention of
so acting, with the additional unfair-
ness that the son whom he would have
acknowledged as his heir, would not
have been his own. Once committed,
neither Sir F. F. Vane nor Lady V.
could retreat, and as to remainder of
the family, certainty rested with those
two alone. The story was disproved
by counter evidence, but' that evi-
dence was not strengthened by the
immense presumption of error, which
the courts saw in the inherent im-
probability of the story." London
Spectator, Dec. 2, 1876.
But the question is not one of pre-
sumption in the sense above stated.
The principle is, that when a mar-
riage is avowed and acted on by the
parties for years, strong proof will
be required to set it aside.
1 5 Co. 98 h; Morris v. Daviea, 6
CI. & F. 163 ; Banbury Peerage case,
497
§ 1299.]
THE LAW OF EVIDENCE.
[book'iii.
judicial separation, presumed to be legitimate, no matter how
soon the birth be after the marriage ;i though this presump-
tion may be overcome by proof that the father was incapable,
on ground either of impotence or absence, of being father
of the child.2 "When access is proved, it requires the strongest
evidence of non-intercourse to justify a judgment of illegiti-
macy.^ Separation, however, by a court of competent jurisdic-
tion, even though there be no divorce, destroys the presumption,
and the children born to the woman after the separation are
primd facie illegitimate.*
§ 1299. But adultery on the wife's part, no matter how clearly
proved, will not have this effect, if the husband had access to
the wife at the beginning of the period of gestation, unless there
should be positive proof of non-intercourse.^ " In every case," so
is the rule declared by the English house of lords, " where a child
1 Sim. & St. 153; Head v. Head, 1
Sim. & S. 150; Cope v. Cope, 1 M.
& Kob. 269, 276; S. C. 5 C. & P.
604; Sullivan v. Kelly, 3 Allen, 148;
CaujoUe V. Ferrie, 26 Barb. 177;
Com. I. Strieker, 1 Br. App. xlvii.;
Com. V. Shepherd, 6 Binn. 283 ; Strode
V. Magowan, 2 Bush., 621; 111. Land
Co. w. Bonner, 75 111. 315; Whitman
V. State, 34 Ind. 360; Dinkins u. Sam-
uel, 10 Rich. 8. C. 66. As to pre-
sumptions in case of children born
ten months after non-intercourse, see
supra, § 334.
1 Stegall 0. Stegall, 2 Brock. 256.
» Morris v. Davies, 5 CI. & F. 163;
R. V. Mansfield, 1 Q. B. 444; Atchley
V. Sprigg, 33 L. J. Ch. 345 ; Strode v.
Magowan, 2 Bush, 621 ; Ward v.
Dulaney, 28 Miss. 410 ; Herring v.
Goodson, 48 Miss. 392.
» Head v. Head, 1 Sim. & S. 150;
Cope V. Cope, 1 M. & Rob. 269, 276;
6 C. & P. 604, S. C. ; Morris u. Da-
vies, 3 C. & P. 215, 427 ; 5 CI. & Fin.
163, S. C; Wright v. Holdgate, 3
C. & Itir. 158; Legge v. Edmonds, 25
L. J. Ch. 125; Banbury Peer, in Ap-
pendix, 11. E. to Le Merchant's Gard-
498
ner's Peer. Selw. N. P. 748-750, and
1 Sim. & St. 153, S. C; R. v. LufEe,
8 East, 193; Taylor's Ev. § 91 a; Sul-
livan V. Kelly, 3 Allen, 148. That
parents are incompetent to prove non-
access, see supra, § 608.
Mr. Fitzjames Stephen (Evid. art.
98) states the law to be, that " declara-
tions by either parent as to sexual in-
tercourse are not regarded as relevant
facts when the legitimacy of the wom-
an's child is in question, whether the
mother or her husband can be called
as a witness or not, provided that in
applications for affiliation orders, when
proof has been given of the non-access
of the husband at any time when his
wife's child could have been begotten,
the wife may give evidence as to the
person by whom it was begotten."
< Sidney v. Sidney, 3 P. Wms.275;
St. George's v. St. Margaret's, 1 Salk.
123.
6 Buryu. Phillpot, 2 M)lne & K.
349; Head v. Head, 1 Sim. & S. 150;
Com. i>. Shepherd, 6 Binn. 283; Com.
V. Strieker, 1 Br. App. xlvii. ; Com. v.
Wenta, 1 Ash. 269 ; State v. Petta-
way, 3 Hawks, 623.
CHAP. XIV.] PRESUMPTIONS : LEGITIMACY. [§1301.
is born in lawful wedlock, the husband not being separated from
his wife by a sentence of divorce, sexual intercourse is presumed
to have taken place between the husband and wife, until that
presumption is encountered by such evidence as proves, to the
satisfaction of those who are to decide the question, that such
sexual intercourse did not take place at any time, when, by such
intercourse, the husband could, according to the laws of nature,
be the father of such child." ^
§ 1300. In the Roman law we have the well known maxim,
Pater est quern nuptiae demonatrant? This, however, has been
construed to be a rebuttable presumption, simply throwing the
burden of proof on those disputing the legitimacy of children
born in wedlock. " For children," so is the law expressed by
Windscheid, a commentator of the highest present authority,^
" who are conceived in matrimony, the law gives the presump-
tion that the child is procreated (erzeugt) by the husband ; but
this does not exclude proof to the contrary. This proof must, to
be effective, show the impossibility of the husband being the
father; it is not enough to prove adultery by the wife, at the
period of conception, with another man." * To this point are
several modern judicial decisions.® The time of conception is
determined, by the Roman practice, by reckoning backwards
from the time of birth ; and the rule is, that there must be not
less than 182 days, and not more than 10 months, to establish
legitimacy.^ German jurists have continued to maintain the
minimum of 182 days.'^ In our own practice, the question of
legitimacy, when a child is born on either side of the usual limits
of parturition, is determined on the testimony of experts ; though,
in cases beyond question, the court may determine what is noto-
rious, as part of the ordinary laws of nature.^
§ 1301. Business men, in the negotiation of bills and notes,
' Banbury Peerage Case, 1 Sim. & « Seuff. Archiv. i. 162 ; ii. 254;
S. 153. See Plowes v. Bossey, 2 Dr. viii. 229; x. 267; xii. 36; xix. 36.
& Sm. 145; Atchley v. Sprigg, 33 L. « L. 12, D. i. 5; L. 5; L. 3, § 11,
J. Ch. 345. D. xxxviii. 16.
^ L. 5, D. (ii. 4.) ' Windscheid, ut supra.
' Windscheid, Lehrbuch des Pan- ^ See cases reported at large in 2
dektenrechts, 3ded. Dusseldorf, 1873, Whart. & Stille Med. Jur. § 40 et seq.
§ 56 6. Supra, § 334.
* L. 11, § 9, D. (xlviii. 5) ; L. 29,
§ 1, D. (xxii. 3); L. 6, D. 1. 6.
499
§ 1302.] THE LAW OF EVIDENCE. [BOOK I[I.
have every reason to act not only fairly but exactly ; and hence,
Paper pre- jn yiew of the importance of extending to negotiable
eumed to ■, • j: -i. t
be regu- paper all proper aid for the maintenance oi its credit,
tilted"^^" the courts have been prompt to determine that it
is a primd facie presumption of fact that such paper, when
on the market, has been regularly negotiated. Hence, the hold-
er of an unimpeached promissory note is presumed, until the
contrary is shov/n, to be a hond fide holder for value.^ Value is
presumed, until the contrary is shown, in all acceptances and in-
dorsements in regular course.^ And the transfer of a bill or note
is presumed, until the contrary is shown, to hiave been before
maturity and in the usual course of business.^ Yet it must be
•remembered that the presumptions just stated are simply pre-
sumptions of fact, of value mainly in determining on which side
lies the burden of proof.
§ 1302. The presumption of regularity is frequently applied to
Burden on j^<ii<^i^l proceedings ; and it is sometimes said that what-
party as- ever a court of record does, it is presumed to do right.
8&iliii£r
judicial This, however, is not correct. A court of record is re-
quired to act exactly and minutely ; and to have record
proof of all its important acts. If it does not, these acts cannot
be put in evidence.* Unless in case of ancient records, missing
links cannot be presumed. " With respect to the general prin-
ciple of presuming a regularity of procedure," says Sir W. D.
Evans, " it may perhaps appear to be the true conclusion, that
wherever acts are apparently regular and proper, they ought not
1 Goodman v. Simonds, 20 How. U.' Sherman, 11 Mete. (Mass.) 170; Mil-
S. 343 1 Scott V. Williamson, 24 Me. ler v. Mclntyre, 9 Ala. 638 ; Clark v.
343 ; Perain v. Noyes, 39 Me. 384; Schneider, 17 Mo. 295.
Perkins v. Prout, 47 N. H. 387; » Burnham u. Webster, 19 Me. 232;
Tucker v. Morrill, 1 Allen, 528 ; Bank Walker v. Davis, 33 Me. 516 ; Bissell
of Orleans u. Barry, 1 Denio, 116 ; v. Morgan, 11 Gush. 198; Noxon ».
EUicott V. Martin, 6 Md. 509 ; Baton ' De Wolf, 10 Gray, 343 ; Hopkins v.
V. Coit, 5 Mich. 505 ; Curtis v. Mar- Kent, 17 Md. 113 ; Mobley v. Ryan,
tin, 20 111. 557 ; Lathrop v. Donald- 14 111. 51 ; Woodworth v. Huntoon,
son, 22 Iowa, 234; Dickerson v. 40 111. 131 ; Cook v. Helms, 5 Wise.
Burke, 25 Ga. 225 ; Earbee v. Wolfe, 107 ; Beall v. Leverett, 32 Ga. 105 ;
9 Port. 366 ; Boyd v. Mclvor, 11 Ala. New Orleans Can. v. Templeton, 20
822 ; Ross v. Drinkard, 35 Ala. 434 ; La. An. 141. See Loomis v. Mowry,
Fuller V. Hutchings, 10 Cal. 523. 8 Hun, 311.
" Story, Bills, § 16, 78 ; Walker v. « Supra, § 830.
600
CHAP. XIV.]
PRESUMPTIONS : REGULARITY.
[§ 1303.
to be defeated by the mere suggestion of a possible irregularity.
This principle, however, ought not to to be carried too far, and
it is not desirable to rest upon a mere presumption that things
were properly done, when the nature of the case will admit of
positive evidence of the fact, provided it really exists." ^ The
true view is, not that the law presumes that a judicial record is
right ; but that, if on its face it is complete and regular, the law
throws upon the party objecting to it the burden of proving any
latent imperfections by which it may be affected.^
§ 1303. In conformity with the rule above stated, where dam-
ages are assessed, it will be presumed that they are assessed on a
good cause of action when such is averred ; ^ where jurisdiction
is averred, all the facts necessary to constitute jurisdiction will
1 2 Ev. Poth. 33, cited in text by-
Mr. Best, Ev. § 360.
^ R. V. Lyme Regis, 1 Dougl. 159
Caunee ». Rigby, 3 M. & W. 68
James v. Reward, 3 G. & Dav. 264
Parsons v. Loyd, 3 Wils. 341 ; Tayler
V. Ford, 22 W. R. 47; 29 L. J. N. S.
392 ; Van Omeron v. Dowiek, 2
Camp. 44 ; Phillips v. Evans, 1 Cr. &
M. 461 ; Gosset v. Howard, 10 Q. B.
453; Bank U. S. v. Dandridge, 12
Wheat. 69; Fl6rentine u. Barton, 2
Wall. 210 ; Cofield v. McClelland, 16
Wall. 331; McNitt v. Turner, 16 Wall.
352; Garnharts v. U. S. 16 Wall.
162; Pittsburg R. R. v. Ramsey, 22
Wall. 322 ; Ready v. Scott, 23 Wall.
352 ; Sprague v. Litherberry, 4 Mc-
Lean, 442 ; Segee v. Thomas, 3
Blatch.,11; Austin t. Austin, 50 Me.
74; Stearns v. Stearns, 32 Vt. 678;
Cowen u. Bolkom, 3 Pick. 281 ; Ap-
thorp „. North, 14 Mass. 167; San-
ford V. Sanford, 28 Conn. 6 ; Scher-
merhorn v. Talman, 14 N. Y. 93;
Cromelien v. Brink, 29 Penn. St. 522;
Williamson v. Fox, 38 Penn. St. 214;
Smith V. Williamson, 11 N. J. L. 313;
State V. Lewis, 22 N. J. L. 564 ; Den
w. Gaston, 25 N. J. L. 615 ; Hudson
v. Messick, 1 Houst. Del. 275; Brown
V. Connelly, 5 Blactf. 390 ; Bracken-
ridge V. Dawson, 7 Ind. 383 ; Morgan
V. State, 12 Ind. 448 ; Kelly v. Gar-
ner, 13 Ind. 399 ; Owen v. State, 25
Ind. 371 ; Markel v. Evans, 47 Ind.
326; Outlaw v. Davis, 27 111. 467;
Tibbs I). Allen, 27 111. 119 ; Moore v.
Neil, 39 111. 256 ; Rosenthal v. Renick,
44 111. 202 ; McNorton v. Akers, 24
Iowa, 369 ; Merritt v. Baldwin, 6
Wise. 439; Bunker v. Rand, 19 Wise.
253; Tharp v. Com. 3 Mete. (Ky.)
411; Vincent v. Eames, 1 Mete. (Ky.)
247; Letcher v. Kennedy, 3 J. J.
Marsh. 701 ; Sidwell v. Worthington,
8 Dana, 74; Brown v. Gill, 49 Ga.
549 ; Tyler v. Chevalier, 66 Ga. 168;
McGrews v. MoGrews, 1 St. & Port.
30 ; Stubbs v. Leavitt, 30 Ala. 138;
Gray v. Cruise, 36 Ala. 559 ; State
V. Farish, 23 Miss. 483 ; Grinstead v.
Foute, 26 Miss. 476 ;, Reynolds v. Nel-
son, 41 Miss. 83; State u. Williamson,
57 Mo. 192; Wadsworth's Sucees. 2
La. An. 966 ; Gibson v. Foster, 2 La.
An. 509 ; Brooks v. Walker, 3 La. An.
150; Towne v. Bossier, 19 La. An.
162; People a. Garcia, 25 Cal. 531;
Butcher v. Bank, 2 Kans. 70; Sumner
V. Cook, 12 Kans. 162; State v. Gib-
son, 21 Ark. 140 ; Callison v. Autry, 4
Tex. 371; Frosh v. Holmes, 8 Tex. 29.
' Barnes v. Jennings, 40 Vt. 46.
501
§ 1304.J THE LAW OF EVIDENCE. [BOOK ni.
be presumed ; ^ where successive decisions are inconsistent with
a general order of court, a reversal of that order will be pre-
sumed ; 2 and where a writ is duly returned, it will be presumed
that it was duly served ; ^ though in all these cases the presump-
tion is available simply for the purpose of throwing the burden
on the party alleging defects in a record otherwise complete. It
will be, to the same extent, inferred that where a parish deed of
apprenticeship has been approved by the proper court, the proper
statutory notices have been given ; * and that there have been due
stamps.^ It should be remembered that the rebuttability of pre-
sumptions of this kind may be lost by delay in applying to the
proper court for correction; and after twenty years such pre-
sumptions may be treated as irrebuttable.^ It is scarcely neces-
sary here to repeat that judicial records are presumed to have
been correctly made.'' When regular, they cannot, except in
cases of fraud or non-jurisdiction, be collaterally impeached.^ If
erroneous, the court of the record must be applied to for relief.^
§ 1304. We must again recall the caution that the presump-
But patent ^^^^ before us goes simply to the burden of proof, and
defects cannot, except in cases of ancient records, on principles
cannot m ,
this way be to be hereafter discussed,^*' supply the proof of averments
"'''' ' ■ necessary to make a record complete.!^ Hence the pre-
sumption will not be allowed to operate so as to dispense with
a check specifically prescribed by statute ; ^ nor to cure process
on its face defective ; ^^ nor to confer jurisdiction on a court when
the record itself shows that the proceedings were so irregular
that the court had no jurisdiction.^*
1 Ray V. Rowley, 4 Thomp. & C. Prop. Gos. v. Young, 2 N. H. 310;
43 ; 1 Hun, 614. Brown v. Wood, 17 Mass. 68.
' Boliun V. Delessert, 2 Coop. 21. ' Reed v. Jackson, 1 East, 355 ;
« Bastard v. Trutch, 3 A. & E. 451 ; Ramsbottom v. Buckhurst, 2 M. & Sel.
5 N. & M. 109; Bosworth o. Vande- 567, per Ld. EUcnborough ; 1 Inst.
walker, 53 N. Y. 597; Drake v. Duve- 260 ; R. v. Carlisle, 2 B. & Ad. 367-
nick, 45 Cal. 455. 369, per Ld. Tenterden.
* R. !;.Wliiston,4 A. & E. 607; R. v. « Supra, §§ 981, 982.
Wliitney,5A.&E.191; 6N. &M. 552. » Supra, § 983.
' R. V. Long Buckley, 7 East, 45. " Infra, § 1847.
For other cases see R. v. Benson, " See supra, §§ 824, 830, 981.
2 Camp. 508; Lee v. Johnstone, L. R. " u. S. v. Jonas, 19 Wall. 598.
1 H. L. Sc. 426. 18 Supra, § 795.
' See Williams v. Eyton, 2 H. & N. " Galpin v. Page, 18 Wall. 365; Com.
771 ; S. C. 4 H. & N. 357 ; Society v. Blood, 97 Mass. 538. Supra, §804.
502 ^
CHAP. XIV.] PRESUMPTIONS : REGULARITY. [§ 1308.
§ 1305. In matters in pais, the presumption of regularity is
more liberally applied. Thus after a verdict, a court
•11 1 11 ,. 1. I" "''<""i
m review will assume that all facts necessary for the necessary
support of the verdict were proved, unless the contrary be pre-
appear in the record duly before the court.^ It is also ^'""°*'
held that the notes taken by the judge at nisi prius will be so
far assumed to be true, that no party is allowed to raise before
the court in banc any question respecting the rejection of evi-
dence at the trial, unless it appears from these notes that the
evidence was formally tendered.^
§ 1306. When a military court has jurisdiction, and its records,
if open to revision, give an adequate narrative of its
procedure, the burden is on the party assailing them militavy
to prove irregularity.^ It has been held that where
a town was proved to be in the military occupation of an enemy,
and proclamations, purporting to be signed by the general in
command, were posted on its walls, the inference was proper
that the placards had been posted by order of the commander.*
5 1307. The law also assumes that proper official So as to
" . _ '■ '■ keeping of
care is taken of public records and files.* records.
§ 1308. It is otherwise, so far as concerns jurisdiction, as to
proceedings before justices of the peace, and before otherwise
courts of special and limited jurisdiction, whatever astopre-
may be their grade.^ As to such tribunals, the facts of jurisdic-
V. Parker, 1 T. R. 141 ; Law Rep. H. L. 419 ; 36 L. J. Q. B.
Jackson v. Pesked, 1 M. & Sel. 237, 313, in Dom. Proc. S. C. So in crim-
per Lord EUenborough ; Steph. Pi. inal cases, R. v. Waters, 1 Den. C.
162-164; Davis v. Black, 1 Q. B. 911, C..356 ; R. v. Bowen, 13 Q. B; 790 ;
912, perLd. Denman, C. J., and Pat- Beale v. Com. 25 Penn. St. 11; Pow-
teson, J. ; 1 G. & D. 432, S. C. ; ell on App. Jur. 158.
Harris v. Goodwyn, 2 M. & Gr. 405 ; ^ (jibbs v. Pike, 9 M. & W. 351 ; 1
2 Scott N. R. 459 ; 9 Dowl. 409, S. Dowl. P. C. 409, cited in Taylor's Ev.
C; Goldthorpe v. Hardman, 13 M. § 78.
& W. 377; Minor v. Bank, 1 Peters, ^ Slade v. Minor, 2 Crancli C. C.
68; Pittsburg R. R. y. Ramsay, 22 139.
Wall. 276; Dobson v. Campbell, 1 * Bruce i). Nicolopulo, 11 Ex. R. 129.
Sumn. 319; Addington v. Allen, 11 ' Reed v. Jackson, 1 East, 855;
Wend. 375 ; Wage's v. Dickey, 17 Hall v. Kellogg, 16 Mich. 135 ; Rico
Oh. 439 ; Coil V. Willis, 18 Oh. 28. "• Cunningham, 29 Cal. 492. As to
See, also. Smith v. Keatino-, 6 Com. regularity of recorded title, see infra,
B- 136; Kidgill u. Moor, 9° Com. B. § 1311-
364 ; Delamere v. The Queen, 2 ° R. u. Hulcott, 6 T. R. 583 ; R. v.
503
§ 1310.] THE LAW OF EVIDENCE. [BOOK in.
tion of jus- necessary to jurisdiction must be shown.^ But justices
spedar^ of the peace, and other judicial officers, though of
courts. special and limited powers, will be presumed to have
acted regularly, as to a matter within their jurisdiction, unless
the record show to the contrary.^ And a warrant of convic-
tion, purporting to be founded on a preceding conviction, has
been sustained in England, though it does not state that the
evidence was given on oath, or in the presence of the pris-
oner.^
§ 1309. The legislature, whether federal or state, when acting
, . within its constitutional range, is presumed to act in
Legislative . . i i i ,
proceed- conformity With law, whenever the contrary does not
sumed to plainly and expressly appear.* Hence we must primd
e regu ar. j^^^g hold that the respective houses, as component
parts of a legislature, act within their jurisdiction, and agreeably
to parliamentary usages and the rules of law and justice. It has
therefore been held that a warrant issued by the speaker of a
legislative house, at the instance of the house, for the arrest of a
witness, need not contain any recital of the grounds on which it
was founded.^
§ 1310. So far as concerns the burden of proof, when the rec-
Eegularity ord of a municipal or other corporation is put in evi-
rrproceed- dence, and such record is complete, and is in conformity
iDgs oi -with law, the burden is on the party assailing it. The
tions. record is not presumed to be correct, for it has to be
Bloomsbury, 4 E. & B. 520 ; Carratt " Christie v. Unwin, 11 A. & E.
V. Morley, 1 Q. B. 18; R. v. Totness, 379 ; Clark in re, 2 Q. B. 630; Ches-
11 Q. B. 80; Day v. King, 5 A. & E. terton v. Fairlar, 7 A. & E. 713 ; Hal-
359 ; Jolinson v. Reid, 6 M. & W. leek v. Cambridge, 1 Q. B. 593; State
24 ; Jackson u. New Milford, 34 Conn. v. Hinchman, 27 Penn. St. 479; Davis
266 ; Pelton v. Plainer, 13 Ohio, 209; u. State, 17 Ala. 364 ; Brown v. Con-
Mills r. Hamaker, 11 Iowa, 206. nelly, 5 Blackf. 890.
1 R. V. All Saints, 7 B. & C. 790 ; « Bailey, ex parte, 3 E. & B. 607.
Gossett V. Howard, 10 Q. B. 452 ; R. * See Cochran v. Arnold, 58 Penn.
V. Stainforth, 11 Q. B. 66; R. v. Pres- St. 399 ; Garrett v. R. R. 78 Penn.
ton, 12 Q. B. 816 ; R. v. Morris, 4 T. St. 465 ; Wickham v. Page, 49 Mo.
R. 552 ; Omerod v. Chadwick, 16 M. 526; Sedgwick's Stat. Law, 228, n. ;
& W. 367; Gotilding «. Clark, 34 N. Cooley's Const. Lim. 168, 172. Su-
H. 148; Graham v. Whitely, 26 N. J. pra, §§ 980 a, 1260.
L. 254 ; State v. Hinchman, 27 Penn. ^ Gosset v. Howard, 10 Q. B. 411,
St. 479; Swain v. Chase, 12 Cal. 283; 455-459.
Tompert v. Lithgow, 1 Bush, 176.
504
CHAP. XIV.] PRESUMPTIONS : REGULARITY. [§ 1312.
duly proved ; but when it is so proved, and when by law it
ia evidence of the facts it narrates, then it is to be accepted as
true until impeached.^ When, however, a statute prescribes
certain conditions as the prerequisites of corporate action, it must
appear from this record that these conditions existed.^
§ 1311. What has been said as to the records of corporations,
when such records are kept in conformity with law, applies,
though with diminishing force, to the minutes of societies,^
and to the entries made by deceased business men.* Supposing
such papers and entries to be admissible in evidence, and to be
regular on their face, the burden of proof is on the party at-
tacking them.
§ 1312. We have already observed that dates stated in a doc-
ument are only primd facie true, and may be disputed Dates in-
even by parties.^ But, until disproved, such dates are be'conectiy
assumed to be correct. " This has been held to apply a'^^erred.
to letters,^ bills of exchange and_ promissory notes,'^ and the in-
dorsements on them,^ and also to bankers' checks.* So, a deed
is presumed to have been executed,i° and delivered," on the
day it is dated." "And where deeds bear date on the same
day, a priority of execution will be presumed, to support the
clear intention of parties ; ^^ as, for instance, where property
is sought to be conveyed by lease and release, both of which
are contained in one deed, a priority of execution of the lease
1 Supra, § 987; Grady's case, 1 De Goodtitle d. Baker v. Milburn, 2 M. &
Gex, J. & S. 488; Lane's case, 1 De W. 853; Potez v. Glossop, 2 Exch.
Gex, J. & S. 504; Muzzey v. White, 3 191. See, however, the observations
Greenl. 290; Copp v. Lamb, 12 Me. of Lord Wensleydale in Butler u. Lord
312 ; Hathaway v. Addison, 48 Me. Mountgarrett, 7 Ho. Lo. Gas. 633, 646.
440; Soc. Prop. Gos. v. Young, 2 N. ' Anderson v. Weston, 6 Bing. N.
H. 310; Cobleigh v. Young, 15 N. H. C. 296.
403; West Springfield v. Root, 18 « Smith v. Battens, 1 Moo. & R.
Pick. 318; Spurr^u. Bartholomew, 2 341. Supra, § 977.
Mete. 479 ; Bassett v. Porter, 10 Gush. » Laws v. Rand, 3 C. B. N. S. 442.
418 ; Endres v. Lloyd, 56 Ga. 592 ; " Anderson u.Weston, 6 Bingh. N.
Louisville v. Hyatt, 2 B. Mon. 177. C. 296, 300.
' Clark V. Wardwell, 55 Me. 61. " Stone v. Grubbam, 1 Rol. 3, pi. 5;
' Supra, § 1131. Oshey v. Hicks, Cro. Jac. 263 ; Best's
* Supra, § 238. Ev. § 402.
' Supra, § 977. " Taylor d. Atkyns v. Horde, 1
' Hunt V. Massey, 5 B. & Ad. 902 ; Burr. 106.
505
§ 1314.J THE LAW OF EVIDENCE. [BOOK III.
will be presumed.^ So, in construing a deed or will, priority
or posteriority in the collocation of words will be disregarded,
in order to carry into effect the manifest intention of the par-
ties." 2
§ 1313. Documents, on their face solemnly executed, are pre-
Formaiities sumed to have been executed in conformity with the
of docu- local law of the place of execution, so far as to throw
merits pre- *■ -, ,,.
sumed to the burden of proving the contrary on the assailing
party .^ Thus if secondary evidence be offered to prove
the contents of a document, the inference, until the contrary is
shown, is that the document was duly stamped,* unless there
is evidence that the document remained without a stamp for
some time after the execution, in which case the onus is shifted,
and lies upon the party who relies on the document.^ So when
an incorporated land company makes a partition of its lands,
it will be presumed, after twenty years, that there was a due
notification to parties of its procedure, and that its acts were
regular.^
§ 1314. So generally if a contract is on its face regularly ex-
ecuted, the burden of proof is on those who assail such regu-
larity.'' Thus where certain formalities are requisite to the va-
lidity of an act done by a joint stock company, as to which act
1 Per North, C. J., in Barker v. * Hart v. Hart, 1 Hare, 1; Pooley
Keets, 1 Freeni. 251. v. Goodwin, 4 A. & E. 94 ; R. v. Long
2 Brice v. Smith, Willes, 1, and the Buckley, 7 East, 65 ; Closmedenc i'.
eases there cited; Richards v. Bluck, Carrel, 18 C. B. 36. Supra, §§ 697-9.
6 C. B. 441. Supra, § 979; Best's ^ Marine Insurance Co. u. Haviside,
Ev. § 364. L. R. 5 E. & I. 624; 42 L. T. P. C.
3 Roberts v. Pillow, 1 Hempst. 624; 173 ; Powell's Evidence, 4th ed. 83.
R. V. Gray, 10 B. & C. 807; R. u. Ash- « Freeman v. Thayer, 33 Me. 76 ;
burton, 8 Q. B. 876 ; R. v. Whiston, Munroe v. Gates, 48 Me. 463; Society
4 A. &E. 667; Doe d. Griffin u. Ma- v. Young, 2 N. H. 310; Freehold-
son, 3 Camp. 7. See, also. Doe d. ers u. State, 4 Zabr. 718. See infra, §
Lewis V. Bingham, 4 B. & A. 672; and 1347 ; Stevens v. Taft, 3 Gray, 487 ;
Brighton Railway Company v. Fair- Russell v. Marks, 3 Mete. (Ky.) 37.
clough, 2 Man. & G. 674; Van Rensse- ' Doe v. Mason, 3 Camp. 7; Doe i'.
laer v. Vickery, 3 Lansing, 57; Diehl Bingham, 4 B. & A. 672; Cherry v.
V. Emig, 65 Penn. St. 320; State t;. Homing, 4 Ex. R. 633 ; Horan v.
Lawson, 14 Ark. 114; Sadler u. An- Weiler, 41 Penn. St. 470; Sutphen
derson, 17 Tex. 245. Supra, § 739 a. ». Cushman, 35 111. 186; Tliayer w.
As to alteration of document, see Barney, 12 Minn. 502 ; Smith v. Jor-
supra, §§ 629, 630. dan, 18 Minn. 264.
506
CHAP. XIV.]
PRESUMPTIONS : REGULARITY.
[§ 1314.
there is evidence showing acquiescence by the stockholders, a
compliance with these formalities will be primd facie inferred.^
Sealing (although there be no impressions of a seal) and delivery
also may be inferred as a presumption of fact, from attestation
and signature, when accompanied by transfer of possession.^ So
also, it will be presumed that attesting witnesses really and reg-
ularly witnessed the execution of the document to which their
signatures are attached.^ Missing links, also, as we will pres-
ently see, may be presumed, especially when these links are the
formal execution, by trustees or agents, of powers conferred on
them.*
1 Grady's case, 1 De Gex, J. & S.
504; British Prov. Ass. Co., in re, 1
De Gex, J. & S. 488.
2 Fassett v. Brown, Pea. E. 23; Tal-
bot u. Hodgson, 7 Taunt. 251 ; Doe v.
Lewis, 6 M. & Gr. 386 ; 10 CI. & F.
346 ; Hall v. Bainbridge, 12 Q. B.
699, 710 ; Sandilands, in re, L. K. 6 C.
P. 411 ; Ward v. Lewis, 4 Pick. 518;
Vernol v. Vernol, 63 N. Y. 45. As
to what constitutes a seal, see supra,
§6 92.
In Cherry !). Heming,4Exch.R. 633,
an action of covenant was brought by
the assignor against the assignees o£
certain letters patent to recover the
consideration money for the assign-
ment, and one of the defendants
named Heming pleaded non est fac-
tum. At the trial Heming produced
the deed, which was signed and exe-
cuted by all tlie parties to it except
himself; but although a seal had been
placed for him in the usual way, his
signature was not attached, neither
was there any attesting witness to his
execution. As, however, he had acted
under the deed, and recognized it as a
valid instrument, the jury presumed,
with the approbation of the court, that
he had duly executed it. Taylor's Ev.
§128.
' See supra, § 739. That parol evi-
dence may prove delivery, see supra,
§ 1016.
* Infra, §§ 1347-57.
" The maxim, Omnia prmsumuntur
rite esse acta, is applied by the courts to
the execution both of deeds and wills.
Where all the witnesses are dead, and
the handwriting of one of them is
proved, the statement in the attesta-
tion clause will be presumed to be cor-
rect. Adam v. Kerr, 1 B. & P. 360 ;
Andrews v. Mottley, 12 C. B. N. S.
526. The court of probate goes fur-
ther than this, and presumes that all
formalities have been complied with
in respect of a will when the attesta-
tion clause is in the usual form. Vin-
nicombe v. Butler, 3 S. & T. 580.
When there is no attestation clause,
or when it is not in the usual form, the
courts of common law will, it seems,
presume compliance with all formali-
ties in respect of a will. Spilsburg v.
Burdett, 10 CI. &,F. 840; and the ten-
dency of the court of probate will be to
give effect to the testator's intentions.
In the goods of Kees, 34 L. J. P. M.
& A. 56. Of course, the evidence of
attesting witnesses may rebut the pre-
sumption of due execution. Croft v.
Croft, 34 L. J. P. M. & A. 44 ; 13
W. R. 526. But when a will appears
on the face of it to have been duly at-
tested, and surrounding circumstances
imply that this was so, the contrary
evidence of one attesting witness will
not rebut the presumption of due exe-
507
§ 1315.]
THE LAW OF EVIDENCE.
[book m.
§ 1315. It is a presumption of fact, varying in intensity with
Officer pre- ^^^ circumstances, that a person acting as a public offi-
sumed to qqj. jg authorized to act as such. The presumption may
be regu- . '■ •'
larly ap- be very weak, as where a mere intruder, whose want of
authority ordinary penetration would discover, usurps
an office ; or it may be very strong, as where a person, honestly
believing himself to be appointed, is honestly accepted by the
body of those with whom he acts. The presumption cannot be
called a presumption of law, for it lacks one of the essential in-
cidents of a presumption of law, {. e. universal equality of appli-
cation to all cases ; and it is to be regarded simply as one of
those presumptions of fact which determine the burden of proof.
In this sense we are to hold that a person acting as a public or
quasi public officer is to be so far recognized as such, that his
appointment is to be treated as regular until the contrary be
proved.^ As officers, in the sense above stated, have been re-
garded trustees under a turnpike act ; ^ justices of the peace ; ^
soldiers engaged in recruiting ; * constables and policemen ; ^
cution. Wright v. Rogers, 17 W. R.
833." Powell's Ev. 83.
1 R. V. Verelst, 3 Camp. 432; Monke
V. Butler, 1 RoUe R. 83 ; Riley v.
Paokington, L. R. 2 C. P. 53; But-
ler V. Hunter, 7 H. & N. 826; Mar-
shall V. Lam, 5 Q. B. 115; Bowley v.
Barnes, 8 Q. B. 1037; R. u. Gorden,
■2 Leach C. C. 581 ; Berryman v. Wise,
4 T. R. 366; Doe v. Brown, 5 B. & A.
243; R. V. Howard, 1 M. & Rob. 188;
McGahey v. Alston, 2 M. & W. 188;
Faulkner v. Johnson.'ll M. & W. 581 ;
Bank U. S. v. Dandridge, 12 Wheat.
70; Minor v. Tillotson, 7 Pet. 100 ;
Sheets V. Selden, 2 Wallace, 177;
Mech. Bk. v. Union Bk. 22 Wall. 276 ;
Jacob V. U. S. 1 Brook. 520 ; Hutch-
ings V. Van Bokkelen, 34 Me. 126 ;
Cabot V. Given, 45 Me. 144; Jay v.
Carthage, 48 Me. 853; State v. Rob-
erts, 52 N. H. 492 ; Briggs v. Taylor,
85 Vt. 57; Fay v. Richmond, 43 Vt.
2§; Com. V. McCue, 16 Gray, 226;
508
Clough V. Whitcomb, 105 Mass. 482;
Wilcox V. Smith, 5 Wend. 231 ; Ham-
lin V. Dingman, 5 Lansing, 61 ; Nelson
V. People, 23 N. Y. 293; Woolsey
Rondout, 4 Abb. App. Decis. 639 ;
Saltar v. Applegate, 8 Zabr. 115; Kil-
patrick V. Frost, 2 Grant (Penn.),
168; Stevens v. Hoy, 43 Penn. St.
260; Seeds v. Kahler, 76 Penn. St.
263; ConoUy v. Riley, 25 Md. 402;
Strang, ex parte, 21 Oh. St. 610;
Druse v. Wheeler, 22 Mich. 439; Shel-
byville v. Stelbyville, 1 Mete. (Ky.)
54; Landry v. Martin, 15 La. R. 1;
Cooper V. Moore, 44 Miss. 386 ; Titus
V. Kimbro, 8 Tex. 210 ; Whart. on
Agency, §§ 44, 121.
^ Pritchard li. Walker, 8 C. & P.
212.
8 Berryman v. Wise, 4 T. R. 366.
* Walton V. Gavin, 16 Q. B. 48.
^ Berryman v. Wise, 4 T. R. 366;
Butler V. Ford, 1 C. & M. 662.
CHAP. XIV.J PRESUMPTIONS : OFFICIAL REGULARITY. [§ 1316^
weigh-masters of particular markets ; ^ attorneys ; ^ post officers
and their employees,^ and masters in chancery and commission-
ers.* Even when a party is indicted for misconduct in office, it
is sufficient, primd facie, to show that he acted in the particular
office in which the misconduct is supposed.^ The rule which has
just been stated applies though the suit be brought in the name
of the officer,^ and though the title be directly put in issue by
the pleading.'^
§ 1316. This presumption, however, does not apply to special
private agents,^ though the fact that a general agent is recog-
nized as such by his principal, makes it unnecessary for the party
relying on such agency to prove a formal authorization as
against the principal.^ It is also clear that if I recognize A. as
agent for P., and deal with A. as such, this relieves him, when
subsequently proceeding against me, from the burden of proving
his official character.^" Nor does the rule affect special officers,
such as executors and administrators, whose appointment is to
be proved by record.^^
1 McMahan v. Leonard, 6 H. of L.
Cas. 970; Hays v. Dexter, 13 Ir. L. E.
N. S. 106.
^ Pearce v. Whale, 5 B. & C. 38.
« R. V. Kees, 6 C. & P. 606.
* Marshall v. Lamb, 5 Q. B. 115;
R. i'. Newton, 1 C. & Kir. 480.
« Clay's case, 2 East P. C. 580 ; R.
V. Rees, 6 C. & P. 606 ; R. v. Good-
win, 1 Lew. C. C. 100; Com. v. Fowler,
10 Mass. 290 ; People v. Cock, 4 Seld.
67 i State V. Perkins, 4 Zab. 409 ;
Com. V. Eupp, 9 Watts, 114; State v.
Hill, 2 Spear, 150.
' M'Gahey v. Alston, 2 M. & W.
206, 211; M'Mahon v. Lennard, 6 H.
of L. Cas. 970 ; Doe v. Barnes, 8 Q.
B. 1037, which was an action of eject-
ment brought by parish officers ; Can-
nell V. Curtis, 2 Bing. N. C. 228; 2
Scott, 379, S. C.
' Dexter v. Hayes, 11 Ir. Law R.
N. S. 106; S. C. nom. Hayes v. Dex-
ter, 13 Ir. Law R. N. S. 22, per Ex.
,Ch.; M'Mahon v. Lennard, 6 H. of L.
Cas. 1000.
8 Short V. Lee, 2 Jac. & W. 468;
Best's Ev. § 357.
' See Whart. on Agency, § 42, 44 ;
Merchants, Bank u. State Bank, 10
Wall. 604 ; Faneuil Hall Bk. v. Bk. of
Brighton, 16 Gray, 534 ; Reed v. R.
R. 120 Mass. 43; Hughes v. R. R. 36
IT. Y. Sup. Ct. 222.
1° Supra, § 1153.
11 Supra, § 67; Hathaway v. Clark,
5 Pick. 490.
"When the appointment is the re-
sult of the proceedings or determina-
tions of a court, such as the assignee
of a bankrupt (Pasmore v. Bontfield,
vol. 1 Cow., Hill & Edwards's Notes to
Phil. Ev. 5th ed. 1868, p. 593 ; Star-
kie's Ev.,by Sharswood, pp. 647, 717),
this kind of parol proof is not suffi-
cient, but the appointment must be
strictly proved in the ordinary way,
.... by letters of administration
themselves, or by the record, or a cer-
tified copy of the proceedings, or of
the appointment, as the action of
courts is proved in other cases. 2
609
§ 1318.]
THE LAW OF EVIDKNCE.
[book III.
§ 1317. Whether to a person exercising a profession the same
So of per- rule applies, has been much discussed. What a person
ci3in?r' holds himself out to be he cannot deny that he is ; and
profession. bencB if a person claims to be a professional man, it is
not necessary to prove him to be a professional man in a suit
against him for damages. The same rule applies to all cases
where a party claims to hold a particular position on the faith of
which he claims credit. He is estopped from afterwards disput-
ing his pretensions, even though they be false.^ The converse
position, though open to much greater difficulty, has been held
true,2 and an attorney has been permitted to maintain an action
for defamation of him in his professional capacity, on mere proof
that he acted as an attorney .^ At common law the same rule
has been held as to surgeons in all eases in which the slander
assumes that the plaintiff was a surgeon.* But where the issue
is, directly or indirectly, whether the plaintiff was entitled to
exercise a particular profession, then he must prove his title.^
§ 1318. On the same reasoning the acts of an executive officer
Action of °-^ *h^ government (e. g. sheriffs, registers, treasurers,
officers and surveyors) are presumed to be regular, so far as to
throw the burden of proof on the party collaterally
assailing such acts on the ground of irregularity.^ So
when a duty is undertaken, and time requisite for the
tionaries
presumed
to be regu-
lar.
Cow., H. & Ed. Notes, above cited,
452 to 454; 1 Green. Ev. § 519 ; Star-
kie's Ev. 717, 693, and 694." Chris-
tiancy, J., Albright v. Cobb, 30 Mich.
R. 361. See Piatt v. McCullough, 1
McLean, 78.
1 Supra, §§ 1087, 1151. See R. ».
Fordingbridge, E., B. & E. 678 ; R. v.
St. Marylebone, 4 D. & R. 475; Bevan
V. Williams, 3 T. R. 635.
" Radford u. Mcintosh, 3 T. R.
632.
« Berryman v. Wise, 4 T. R. 366.
See McGahey u. Alston, 2 M. & W.
206 ; McMahan v. Leonard, 6 H. of
L. Cas. 970.
* Gremare v. Valon, 2 Camp. 144;
Cope v.. Rowlands, 2 M. & W. 160.
' Collins V. Carnegie, 1 A. & E.
510
695; S. C. 3 N. & M. 703. See Tay-
lor's Ev. § 143, citing and criticising
Sellers «. Tell, 4 B. & C. 655; Cortis
V. Kent, 7 B. & C. 314.
« R. u. Hinckley, 12 East, 361 ; R. ».
Catesby, 2B. &C. 814; Gosset W.How-
ard, 10 Q. B. 411 ; R. V. Stainforth,
11 Q. B. 66 ; R. V. Broadhempston, 1
E. & E. 154; Ross w. Reed, 1 Wheat.
482 ; Phil. R. R. v. Stimpson, 14 Pet.
448; Minter u. Crommelin, 18 How.
89 ; U. S. V. Weed, 5 Wall. 62 ; Dixon
V. R. R. 4 Biss. 137; Shorey v. Hus-
sey, 32 Me. 579; Wheelock v. Hall, 3
N. H. 310; Kimball v. Lamphrey, 19
N. H. 215; Forsaith v. Clark, 21 N.
H. 409 ; Drake v. Mooney, 31 Vt. 617;
Richardson v. Smith, 1 Allen, 541 ;
Jones V. Boston, 104 Mass. 461 ;
CHAP. XIV.] PRESUMPTIONS: OFFICIAL REGULARITY. [§1318.
performance of the duty has elapsed, and there is no proof of
the non-performance of the duty, the jury, as a presumption of
fact, to be drawn from the whole case, may infer that the duty
was performed.^ The presumption just given is not limited to
officers of state. Thus in a prosecution for bigamy, where the
marriage was proved by the witness present to have taken place
at the parish church and to have been solemnized by the curate
of the parish, it was held unnecessary to prove either the regis-
tration of the marriage, or the fact of any license having been
granted.^
This presumption, however, is not to be extended so as to
make it cover substantive independent facts as distinguished from
facts which are the mere incidents of others duly established.^
It must be further kept in mind, as to presumptions of this
class, that to throw the burden on the objector, the conduct of
the officer must be on its face regular.*
People V. Bank, 4 Bosw. 363; Smith = R. v. Allison, R. & R. 109. See
supra, § 1297 for other cases.
" "The presumption that public
ofBcers have done their duty, like the
presumption of innocence, is undoubt-
edly a legal presumption; but it does
not supply proof of a substantive
fact. Best, in his treatise on Evi-
dence, § 300, says : ' The true prin-
ciple intended to be asserted by the
rule seems to be, that there is a gen-
eral disposition in courts of justice to
uphold judicial and other acts rather
than to render them inoperative ; and
with this view where there is general
evidence of facts having been legally
and regularly done, to dispense with
proof of circumstances, strictly speak-
inc, essential to the validity of those
acts, and by which they were proba-
bly accompanied in most instances,
although in others the assumption may
rest on grounds of public policy.' No-
where is the presumption held to be
a substitute for proof of an indepen-
dent and material fact." Strong, J.,
U. S. V. Ross, 92 Otto, 283, 284, 285.
* Supra, § 1304; Welsh v. Cochran,
63 N. Y. 181.
511
V. Hill, 22 Barb. 656 ; Wood v. Terry,
4 Lansing, 80 ; Plank Road v. Bruce,
6 Md. 457; Davis v. Johnson, 3 Munf.
Va. 81 ; Ward v. Barrows, 2 Oh. St.
241; Ashe v. Lanham, 5 Ind. 435;
Banks v. Bales, 16 Ind. 423 ; Chick-
ering v. Failes, 29 111. 294 ; Niantic
Bk. V. Dennis, 3 7 111. 381; Mor-
rison V. King, 62 111. 30; McHugh v.
Brown, 33 Mich. 2 ; Rowan v. Lamb, 4
Greene (Iowa), 468; Palmer v. Boling,
8 Cal, 384 ; Boyd v. Buckingham, 10
Humph. 434 ; Jewell v. Porche, 2 La.
An. 148; Morse v. McCall, 13 La. An.
215; Webster u. Gottschalk, 15 La. An.
376; New Orleans v. Halpin, 17 La.
An. 148; Trotter v. Schools, 9 Mo. 69;
Moreau v. Branham, 27 Mo. 351; Sad-
ler V. Anderson, 17 Tex. 245.
1 Doe V. Turford, 3 B. & Ad. 890 ;
Rugg V. Kingsmill, L. R. 1 Ad. & Ec.
343; R. V. Stainforth, 11 Q. B. 66 ;
Minter v. Crommelin, 18 How. 87 ;
Dana v. Kemble, 19 Pick. 112; To-
demier v. Aspinwall, 43 111. 401;
Philips V. Morrison, 3 Bibb, 105;
Forman v. Crutcher, 2 A. K. Marsh.
69.
§ 1320.J THE LAW OF EVIDENCE. [BOOK lU.
§ 1319. It is sometimes said that the law presumes that pub-
Burden of lie officers do their duty. The law, however, presumes
proof 13 on ^^ g^^j^ thing. If a public officer is sued for miscon-
puwu!°(i- <i'ict, then the case goes to the jury on the evidence,
ficer with there being no presumption of virtue in his favor suf-
miscon- a i ^ _ r i i
duct. ficient to outweigh preponderating proof on the other
side. What the law says is, that a public officer is so far assumed
primd facie to do his duty, that the burden is on the party seek-
ing to charge him with misconduct.^ And this is in full harmony
with the general rule above given, that on the actor lies the bur-
den. The same reasoning applies in cases where the conduct
of the officer comes collaterally in question. The burden is on
those assailing such conduct ; and so far, the conduct of such of-
ficer is primd facie presumed to be right.^ In criminal prosecu-
tions for misconduct in office, the presumption in favor of the
officer, when the case goes to the jury, is only the ordinary pre-
sumption of innocence.
§ 1320. We have already had occasion to observe ^ that it is
Regular- an ordinary inference that the action of business men
ness^men^'" '^^^^ ^® Conducted with business regularity. Of this
presumed, inference it may be mentioned, by way of illustration,
that where a partnership is found to exist between two pei-sons,
but there is no evidence to show in what proportions they are
interested, it is to be assumed that they are interested in equal .
moieties.* We infer, in the same way, that bills of exchange
and promissory notes are given for a sufficient consideration.^
And a bill of exchange, in the absence of proof to the contrary,
1 Bruce II. Holden, 21 Pick. 187; Todemier v. Aspinwall, 43 111. 401;
Clapp V. Thomas, 5 Allen, 158; Phelps DoUarhide v. Muscatine Co. 1 Green
V. Cutler, 4 Gray, 137; McMahon v. (Iowa), 158; Guy v. Washburn, 23
Davidson, 12 Minn. 357; State v. Mel- C^l. Ill ; Hickman v. Boflfman, Hard,
ton, 8 Mo. 417. (Ky.) 348; Ellis v. Carr, 1 Bush,
2 Lee V. Polk Co. Copper Co. 21 527 ; Phelps v. Ratcliffe, 3 Bush,
How. 493 ; Dixon v. R. R. 4 Biss. 834 ; Dawkins v. Smith, 1 Hill (S.
137 ; Hartwell w. Root, 19 Johns. R. C.) Ch. 369; Jones v. Muisbach, 26
845 ; Sheldon v. Wright, 7 Barb. 89; Tex. 235.
Nelson v. People, 23 N. Y. 293; Al- « Supra, §§ 1243, 1301.
leghany v. Nelson, 25 Penn. St. 232 ; * Farrar v. Beswiok, 1 Moo. & R-
Kelly «. Creen, 53 Penn. St. 302; 627, per Parke, B.
Jenkins v. Parkhill, 25 Ind. 473 ; » Byles on Bills (8th ed.), 2, 108.
512
CHAP. XIV.] PRESUMPTIONS: BUSINESS REGULABITY. [§1822.
is inferred to have been accepted within a reasonable time after
its date, and before it came to maturity.^
§ 1320 a. On the same principle, if a party should present a
claim, of old date, to a solvent person, the fact that the „
claim has lain dormant for years subiects it to much e"ce to be
inferred
prejudice.^ The presumption, however, is open to be from non-
rebutted by proof of the intermediate insolvency of the " *'"'^'^'
debtor, or of other grounds for the suspension of the debt. The
reasoning is, that a claim which a party does not undertake to
realize, he discredits. On the same reasoning, the fact that a
patent lies dormant for years affords an inference of its inutil-
ity-^
§ 1321. When services are accepted, the ordinary inference
is that the party accepting has agreed to pay for .
them.* But this presumption varies with circum- to pay to be
inferred
stances; and when the services are rendered by one from ac-
member of a family to another, no such presumption services! "
can be drawn. ^
§ 1322. If a business man forwards goods to another, either
for the latter's use, or for sale, the delivery and ac- other im-
ceptance of the goods presume an agreement to pur- P^^_
chase ;^ if a servant is hired, it is presumed to be for ments.
the usual period of service ; ' when marriage is promised, the en-
gagement will be presumed to be to marry within a reasonable
time.^
1 Koberts v. Bethell, 12 C. B. 778. ^ See 1 Broom & Hadley's Com. (Am.
For other instances, see Carter v. Ab- ed.) 132-4; Whart. on Agency, § 323;
bott, 1 B. & C. 444; Houghton v. Gil- 1 Wait's Actions, 99; Smith u. Thomp-
bart, 7 C. & P. 701 ; Leuckhart v. son, 8 C. B. 44 ; Scott, in re, 1 Redf.
Cooper, 7 C. & P. 119; Cunningham (N. Y.) 234.
»■ Fonblanque, 6 C. & P. 44 ; Best's ^ See Wharton on Agency, § 324,
Ev. § 404. and cases there cited ; and see Wilcox
2 T. V. D., L. R. 1 P. & D. 27; Sib- v. Wilcox, 48 Barb. 327 ; Gallaher v.
bpqng V. Balcarres, 3 De Gex & Sm. Vought, 8 Hun, 87; King v. Kelly, 28
735;' Taylor's Ev. § 121, citing Birch, Ind. 89.
inre, 17 Beav. -358. See H., falsely « See 1 Broom & Hadley's Com.
called C, v. C. 31 L. J. Pr. & Mat. (Am. ed.) 132-4, and cases there
103. cited ; 1 Wait's Actions, 99 ; Barr v.
' Bakewell's Patent, in re, 15 Moo. Williams, 23 Ark. 244.
!■• C. 385; Allen's Patent, in re, L. ' Best's Ev. § 400.
E- IP. C. 507; S. C. 4 Moo. P. C. « pHUips v. Crutchley, 3 C. & P.
N-S. 443. 78; 1 Moore & P. 239.
VOL. II. 33 g-j^g
§ 1323.]
THE LAW OF EVIDENCE.
[book III.
, § 1323. The mailing a letter, properly addressed and stamped,
Mailing *" ^ person known to be doing business in a place where
'^t?^'', ^ . there is established a regular delivery of letters, is proof
pnmafacie ^ "^ -^
proof of of the reception of the letter by the person to whom it
°^"^' is addressed.' Such proof, however, is open to rebuttal,
and ultimately the question of delivery will be decided on all the
circumstances of the case.^ In cases of registered letters the pre-
sumption is peculiarly strong ; ^ in cases of ordinary letters, where
there is no mail delivery, there is no presumption at all,* and
delivery must be substantially proved.* The rule as to letters)
1 Saunderson v. Judge, 2 H. Bl.
509; Ron v. Johnson, 7 East, 65; Kuf h
V. Weston, 3 Esp. 54 ; Warren v. War-
ren, 1 C, M. & R. 250; Stocken v.
Collin, 7 M. & W. 515; Woodcock v.
Houldsworth, 16 M. & W. 124; Ship-
ley V. Todhunter, 7 C. & P. 630 ; Skil-
beck V. Garbett, 7 Q. B. 846 (a case
of delivery to a postman) ; Dunlap v.
Higgins, 1 H. of L. Cas. 381; Lin-
denberger v. Beal, 6 Wheat. 104 ;
Oakes o. Weller, 13 Vt. 63; Connec-
ticut V. Bradish, 14 Mass. 296 ; New
Haven Bank v. Mitchell, 15 Conn.
200; Russell o. Beckley, 4 R. I. 525;
Thallhimer w. Brinckerhoff, 6 Cow. 90;
Starr v. Torrey, 22 N. J. L. (2 Zab.)
190; Callan v. Gaylord, 3 Watts, 321;
Tanner v. Hughes, 53 Penn. St. 289 ;
Shoemaker v. Bank, 59 Penn. St. 79.
In England this presumption has
been adopted by the legislature in
many acts of parliament, but with this
difference, that no rebutting evidence
is admissible, and, therefore, the pre-
sumption is conclusive. Powell's Ev.
4th ed. 86. For decisions on these
statutes, see Bishop v. Helps, 2 C.
B. 45 ; Bayley v. Nantwich, 2 C. B.
118.
" Ibid.; Reidpath's case, 40 L. J.
Ch. 39 ; U. S. V. Babcock, 3 Dillon
C. C. 571; Freeman o. Morey, 45 Me.
50; Greenfield Bank c. Crafts, 4 Al-
len, 447; First Nat. Bank v. McMan-
igle, 69 Penn. St. 156 ; Foster v.
614
Leeper, 29 Ga. 294. See Tate v. Sul-
livan, 30 Md. 4fi4; Lyon v. Guild, 5
Heisk. 175.
8 Best's Ev. § 403.
* Bilbgerry v. Branch, 19 Grat. 393;
James v. Wade, 21 La. An. 548.
^ " There is no presumption of law
that a letter, mailed to one at the place
he usually receives his letters, was re-
ceived by him. A strong probability
of its receipt may arise, as was said iu
Tanner v. Hughes, 3 P. F. Smith, 289,
and the fact of its deposit in the mail-
bag, in connection with other circum-
stances, may be sufficient to warrant
the court in referring the question of
its receipt to the determination of the
jury." Williams, J., First Nat. Bank
of Bellefonte v. McManigle, 69 Penn.
St. 159.
' ' Upon the subject of the admissi-
bility of letters, by one person ad-
dressed to another, by name, at his
known post-office address, prepaid, and
actually deposited in the post-office, we
concur, both of us, in the conclusion,
adopting the language, of Chief Jus-
tice Bigelow, in Comm. v. Jefiries, 1
Allen, 563, that this ' is evidence
tending to show that such letters
reached their destination, and were
received by the persons to whom they
were addressed.' This is not a con-
clusive presumption; and it does not
even create a legal presumption that
such letters were actually received!
CHAP. XIV.] PRESUMPTIONS : DELIVERY OF LETTERS. [§ 1323.
however, applies only to letters mailed at points other than that
at which the party written to resides. Notices of local trans-
actions, to persons living in the same place as that from which
the notice is issued, should, it seems, be served personally. i " It
is well settled, that where the transaction, of which notice is
to be given, takes place in the same town in which the party
to whom the notice is to be given resides, such notice must be
personal, or at his domicil or place of business, and not through
the post-office.^ It is also well settled, that, when the party
resides in another town, notice by the post-office is sufficient *
and conclusive, even though it was in fact never received."*
To enable the presumption to operate, it is essential that the
letter should be addressed with specific correctness. Thus it
has been held that no presumption of delivery attached to a
The question as to the proper mode
of notifying a man by mail depends
much less on the place of his exact
legal domicil than upon the locality
of the post-office at which he usually
receives his letters ; and if he is in the
habit of resorting for that purpose,
equally and indifferently to two post-
offices, a communication may very
properly be addressed to him at
either. United States Bank v. Car-
neal, 2 Pet. 543 ; Story on Notes, §
343. The plaintiffs appear to have
put him on the same footing, for the
purpose of post-office communication,
as if he were a resident of Shelburne
Falls. The letter was left at the post-
office, not for the purpose of being
transmitted by mail to any other town
or post-office, and not to go into the
hands of any official carrier charged
with the distribution of letters at the
dwelling-houses and places of business
of inhabitants of the vicinity; on the
contrary, it did not go into the mail
at all, but was simply deposited at the
Shelburne Falls post-office, to remain
there until called for by the defend-
ant." Shelburne Bk. v. Townsley, 102
Mass. 177, Ames, J.
it is evidence tending, if credited by
the jury, to show the receipt of such
letters. ' A fact,' says Agnew, J.,
Tanner v. Hughes, 33 Penn. St. 290,
' in connection with other circum-
stances, to be referred to the jury,'
under appropriate instructions, as its
value will depend upon all the circum-
stances of the particular case." Dil-
lon, Circuit Judge, United States v.
Babcock, 3 Dillon's C. C. R. 573.
' Shelburne Bank v. Townsley, 102
Mass. 177; Ransom v. Mack, 2 Hill,
587; Sheldon v. Benham, 4 Hill, 129.
* Shelburne Bank v. Townsley, su-
pra, citing Peirce v. Pendar, 5 Met.
352; Chit. Bills (12th Am. ed.), 473.
' Ibid. ; Munn v. Baldwin, 6 Mass.
316.
♦ Shed V. Brett, 1 Pick. 401. " In this
case the transaction occurred in New
York, and not in Buckland, where the
defendant resided. The letter, how-
ever, in which the plaintiffs undertook
to give the notice, was addressed to
the defendant, not at Buckland, but
at Shelburne Falls, and the report
shows that he was in the habit of re-
ceiving letters at the post-offices of
these tvfo places respectively, and
about as often at one as at the other.
615
§ 1325.]
THE LAW OF EVIDENCE.
[book in.
letter addressed, " Mr. Haynes, Bristol." i The same inference
from regularity may be drawn as to the delivery of telegraphic
dispatches ; ^ though ordinarily the original message should be
produced.^
Letter pre- | 1324. A letter, duly stamped and mailed is in-
arrive at ferred, by a presumption of fact, to be delivered at the
of deliver?, usual period for such delivery.*
§ 1325. The post-mark on a letter, if decipherable, raises a
presumption that the letter was in the post at the time
primi fa- and place specified in such post-mark, but this again is
cie proof. ^ rebuttable presumption.^ The post-mark, however, is
not, it is said, evidence of the date of forwarding.®
I Walter v. Haynes, Ry. & M. 149.
And see, as narrowing the rule, Al-
len V. Blunt, 2 Woodb.& M. 121. See
Phillips V. Scott, 43 Mo. 86.
a Com. <;. Jeffries, 7 Allen, 548; U.
S. V. Babcock, 3 Dillon, 571.
8 Howley v. Whipple, 48 N. H.
487; cited at large supra, § 76.
* The law on this point is thus well
stated by Mr. Powell (Evidence, 4th
ed.), 81 : "A letter is presumed to have
arrived at its destination at the time
at which it would be delivered in the
ordinary course of postal business, and
the sender is never held answerable
for any delay which occurs in its trans-
mission through the post. Stocken
V. Collin, 7 M. & W. 515. So that
where any notice has to be given on
a particular day, it is sufficient to post
it so that it would, in the ordinary
course, arrive at its destination on
that day, and if it is delayed in the
post, the sender is not responsible for
the delay. Ward v. Lord Londes-
borough, 12 C. B. 252. This is im-
portant in reference to notices to quit
and notices of dishonor. Here we
may allude to the rule laid down by
the house of lords in Dunlop v. Big-
gins, 1 H. L. Cas. 381, that a contract
to buy goods entered into by letter is
complete when the letter of accept-
ance is posted; and the rule was held
to be the same, in the case of a con-
tract to take shares, by the court of
appeal in chancery in Harris's case,
20 W. R. 690; 41 L. J. Ch. 621 ; L.
R. 7 Ch. 587. But the court of ex-
chequer, in The British and American
Telegraph Co. k. Colson, L. R. 6 Ex.
108; 40 L. J. Ex. 97, held that if the
letter of allotment is not received there
is no contract; and in Reidpath's case,
19 W. R. 219;L. R. llEq. 86;40L.
J. Ch. 89, Lord Romilly held that
it was necessary to prove receipt by
the allottee when denied. Lord Jus-
tice Mellish, in Harris's case, said that
he had great difficulty in reconciling
« Powell's Evidence, 4th ed. 88 ; R.
V. Johnson, 7 East, 65 ; Fletcher v.
Braddyl, 8 Stark. R. 64 ; Archangelo
t'. Thompson, 2 Camp. 623 ; Ship-
ley ji. Todhunter, 7 C. & P. 680 ;
Stocken v. Collen, 7 M. & W. 515;
Butler V. Mountgarrett, 7 H. of L.
516
Cas. 633; 5. C. 6 Ir. Law R. (N.
S.) 77; New Haven Bk. u. Mitchell,
15 Conn. 206; Callan v. Gaylord, 3
Watts, 321.
^ Shelburne Bk. v. Townsley, 102
177.
CHAP. XIV.] PRESUMPTIONS : DELIVERY OF LETTERS. [§ 1328.
§ 1326. If a servant or clerk is permitted by his master to act
as sucli, then whenever a letter, whether sent by post DeiiTcryto
or by hand, is proved to have been correctly addressed deilTOrV to
and delivered to the clerk or servant of the person to master,
whom it was addressed, it will be presumed that it came into his
hands, although this presumption can be rebutted.^ So where a
letter is put in a box from which it is an unvariable practice of a
letter carrier to take letters at fixed periods, mailing will be pre-
sumed .^
§ 1327. The principle before us, based as it is on- the assump-
tion that as absolute certainty in such proof cannot be Letters de-
obtained, it is enough, in order to make out a primd pJeYumed
facie case, to show that a letter is forwarded in a way {,g^n ^e-
by which letters are usually received, applies to other ceived.
than post-office delivery.^ Hence, where it was proved to be the
usage of a hotel for letters addressed to guests to be deposited in
an urn at the bar, and then to be sent, about every fifteen min-
utes, to the rooms of the guests to whom such letters were ad-
dressed, it was held to be a presumption of fact that a letter ad-
dressed to one of the guests, and left at the bar, was received by
such guest.* In case of a denial, by the party addressed, of re-
ception, then the case goes to the jury as a question of fact.
§ 1328. If I should mail a letter to B., addressing him at his
residence, and I should receive by mail an answer pur- Letters in
porting to come from B., the fact that such an answer one^aiied
is so received makes a primd facie case in favor of the ^°^^,.
genuineness of the answer. The subalterns of the post- presumed
_ ^ to be genu-
omce are government officials, whose action is presumed ine.
to be regular; and if I can prove that B. lived at the place where
he was addressed, then the burden is on him to show that he did
The British and American Telegraph is posted, how can it possibly become
Co. V. Colson, with the decision in subsequently incomplete because that
Dunlop V. Higgins, and Vice Chancel- letter is not received ? "
lor Malins followed suit in Wall's ^ Macgregor v. Kelly, 3 Ex. 794.
case, L. R. 15 Eq. 20; 42 L. J. Ch. 2 Skilbeck v. Garbett, 7 Ad. k El.
372. Although the decisions in The N. S. 846.
British and American Telegraph Co. ' See cases cited supra, § 1323; New
f. Colson and Reidpath's case have Haven Bk. v. Mitchell, 15 Conn. 206.
not been overruled, they would appear See Crandall v. Clark, 7 Barb. 169.
to be unsound; for if a contract is * Dana v. Kemble, 19 Pick. 112.
complete when a letter of acceptance
517
§ 1331.] THE LAW OF EVIDENCE. [BOOK III.
not receive the letter, and that the reply mailed in response was
not genuine.^
§ 1329. It is otherwise, so has it been argued, as to telegraphic
But not dispatches, which are forwarded not in original but in
telegrams, copy, and by private, not public agents.^
§ 1330. Testimony by a clerk that it was his invai'iable custom
to carry certain classes of letters to the post-office, of
Presump- i • i i , . i
tion from v^hich class the letter in question was one, though he
forwarding had no recoUection as to such letter specifically, has
^ "^^^ been held sufficient to let a copy of the letter in evi-
dence, after notice to the other side to produce.^ If the letter is
shown to have been given to such a clerk for the purpose of mail-
ing, then it will be inferred that the letter was ma^iled, though
the clerk has no specific recollection of the letter.* Mailing will
in such case be also inferred, if the witness state that it was in
the ordinary course of business his practice to carry letters deliv-
ered to him (as was the letter in controversy) to the post, al-
though he has no recollection of the particular letter.^
VI. PRESUMPTIONS AS TO TITLE.
§ 1331. Possession, as to personal as well as real property, is
Presump- gg far a presumption of title that the burden of proof is
favor of on the party by whom such possession is assailed.^
possession.
» Connecticut u. Bradish, 14 Mass. § 366; Webb v. Fox, 1 T. E. 397;
296; Chaffee v. Taylor, 3 Allen, 598; Millay v. Butts, 35 Me. 139; Vining
Johnson v. Daverner, 19 Johns. 134. v. Baker, 53 Me. 544; Baxter v. Ellis,
2 Howley v. Whipple, 48 N. H. 488. 57 Me. 178; Waldron r. Tuttle, 3 N.
8 Thallhimeru.BrinckerhofE.eCow. H. 340; Winkley v. Kaime, 32 N. H.
96. 268; Carr i'. Dodgo, 40 N. H. 403;
* Hetherington v. Kemp, 4 Camp. Austin ti. Bailey, 37 Vt. 219; Simpson
193; Ward y. Londesborough, 12 C. B. v. Carleton, 14 Gray, 506 ; Currier v.
252; Toosey u. Williams, 1 Moo. &M. Gale, 9 Allen, 522; Durbrow v. Mc-
129; Patteshell v. Turford, 3 B. & Aid. Donald, 5 Bosw. 130; Gray v. Gray, 2
890; Pritt v. Fairclough, 3 Camp. 305; Lansing, 173; Bordine v. Combs, 15 N.
Hagedorn v. Reid, SCamp. 879; Skil- J. L. (8 Gr.)412; Entriken v. Brown,
beck V. Garbett, 7 Q. B. 846 ; Spencer 82 Penn. St. 364; llobinson v. Hodgson,
V. Thompson, 6 Ir. L. R. (N. S.) 537. 73 Penn. St. 202; Coxe i. Deringer,
^ Skilbeck v. Garbett, 7 Q. B. 846; 78 Penn. St. 271; Drummond v. Hop-
Hetherington u. Kemp, 4 Camp. 193; per,4Harr. (Del.) 827; Allen o. Smith,
Ward V. Ld. Londesborough, 12 Com. 1 Leigh, 231; Hovey v. Sebring, 24
B. 252; Spencer v. Thompson, 6 Ir. Mich. 232; Ward u. Mcintosh, 12 Oh.
Law R. (N. S.) 537, 565. St. 281 ; Caldwell v. Evans, 5 Bush,
" 2 Wms. Saund. 47 f ; Best's Ev. 380; Park v, Harrison, 8 Humph. 412;
618
CHAP. XIV.]
PRESUMPTIONS : TITLE.
[§ 1332.
§ 1332. Even as to real estate, possession, or reception of rents
from the person in possession, is so far primd fade ^^ ^^
evidence of seisin in fee, as to throw upon a contest- realty,
ing party the burden of proving a superior title.^ Possession,
also, is sufficient title to sustain a suit for trespass;^ and it
has been held that on a suit against a county for road damages,
proof of possession of real estate for only nine years makes a
su&cient primd faoie case.^ Proof of payment of taxes is ad-
missible in order to strengthen the presumption.* Death does
not terminate such presumption, but the same possessory rights
pass at once to the representatives of the deceased ; and the
burden of proof is on all parties attacking such possession.^
Finch !). Alston, 2 St. & P. (Ala.) 83; possession, resisted promptly by the
Sparks v. Eawls, 17 Ala. 211; Vas-
tinew. Wilding, 45 Mo. 89; Goodwin
V. Garr, 8 Cal. 615.
It has frequently been said that the
possessor of property is presumed to
have rightfully acquired title ; and for
this is cited a well known Roman
maxim : Quaelibet possessio praesumitur
juste adquisitur. But the reasoning of
the jurists, taking their exposition of
presumptions in a body, shows that
they intend by presumptions, when
used in this as well as in all other re-
lations, rules for the burden of proof,
and not presumptions of law and
that, in the particular case before
us, they are to be construed only as
asserting that, as a matter of proof,
he who holds property is entitled to
retain it until a better title is shown
in some one else. In other words, no
one is to be presumed to have a good
title against a possession. But this
negative presumption is far from being
equivalent to the affirmative proposi-
tion, that every possessor is presumed
to have a good title. Weber, Heffter's
ed. 95. The presumption, if it be
such, is effective only in regulating the
burden of proof. When the evidence
of both sides is in, then there is no
presumption, in the strict sense of the
term, at all. Indeed, a brief tortious
dispossessed party, tells rather against
than for the aggressor. On the other
hand, a long possession, acquiesced in
by a dispossessed party, may estop the
latter. The question is one of infel'-
enoe from the facts in the concrete.
1 Best's Ev. § 366 ; Jayne v. Price,
5 Taunt.. 326; Denn v. Barnard, Cowp.
595; R. V. Overseers, 1 B. & S. 763;
Metters v. Brown, 1 H. & C. 686; Doe
V. Coulthred, 7 A. & E. 239 ; Lewis v.
Davies, 2 M. & W. 503 ; Wendell v.
Blanchard, 2 N. H. 456 ; Hawkins v.
County, 2 Allen, 251 ; Brown v. Brown,
30 N. Y. 519; Corning v. Troy Fac-
tory, 44 N. Y. 577 ; Read v. Goodyear,
17 S. & R. 350; Seechrist v. Baskin,
7 W. & S. 403; Hoffman v. Bell, 61
Penn. St. 444 ; Coxe v. Derringer, 78
Penn. St. 271 ; Ward v. Mcintosh, 12
Oh. St. 231 ; Hunt v. Utter, 15 Ind.
318 ; Smith v. Hamilton, 20 Mich.
433; Crow v. Marshall, 15 Mo. 499.
As to presumption of regularity of tax
sales, see infra, § 1353.
2 Elliott V. Kent, 7 M. & W. 312;
where it was said that in such case
the presumption was conclusive.
8 Hawkins v. County, 2 Allen, 251.
* Hodgdon v. Shannon, 44 N. H. 6 72 ;
Durbrow v. McDonald, 5 Bosw. 130.
* Alexander's Succession, 18 La.
An. 337.
519
§ 1336.] THK LAW OF EVIDENCE. [BOOK HI.
§ 1333. A mere tortious possession, however, obtained by vio-
lence, is not possession in the meaning of the rule before us ;
and against such a wrong-doer, the party wrongfully dispossessed
may make out a primd fade case, in an action of ejectment, on
proof of a prior possession, however short.^ Possession of a year,
for instance, by a party who received the key of a room from the
lessor of the plaintiff, has been held sufficient to sustain the
plaintiff's case against the defendant who broke in at night and
took forcible possession .^
§ 1334. The possession, also, to found such presumption,
Such DOS- Di'ist be independent. If the evidence shows only a
session qualified, subordinate, or contested interest, no title be-
must be -^
indepen- yond that proved is to be presumed as against a supe-
rior title, even though a possession of twenty years be
shown.^ Possession with consent of the owner raises no pre-
sumption against such owner.*
§ 1335. The circumstance that a constructive possession only
has been maintained for at least part of the time, does not re-
move the burden of proving title from a party claiming against
a possession which for the rest of the time was absolute.®
§ 1336. What has been said as to realty applies necessarily to
So as to personalty.^ A striking illustration of this principle is
personalty. ^^ ^^ found in the- rulings that the possession of a
negotiable promissory note, indorsed in blank, is such presump-
tive evidence of ownership as to sustain a suit.^ The possession
1 Asher v. Whitelock, Law Rep. 1 * Magee v. Scott, 9 Cush. 148; Nieto
Q. B. 1 ; Clifton v. Lilley, 12 Tex. v. Carpenter, 21 Cal. 455.
130 ; White v. Cooper, 8 Jones (N. ^ Glass w. Gilbert, 58 Penn. St. 266.
C.) L. 48. See Weston u. Higgins, « Elliot ». Kemp, 7 M. & W. 312 ;
40 Me. 102. Millay v. Butts, 85 Me. 139 ; Cam-
" Doe V. Dyeball, 3 C. & P. 610; bridge v. Lexington, 17 Pick. 222.
M. & M. 346, S. C. See Doe ». Bar- ' Shepherd v. Currie, 1 Stark. 454;
nard, 13 Q. B. 945; Doe v. Cooke, 7 Alford v. Baker, 9 Wend. 823; Wickes
Bing. 34G ; 5 M. & P. 181, 5. C. See, v. Adirondack Co. 4 Thomp. & C. 250;
also, Brest v. Lever, 7 Mees. & Wels. Weidner v. Schweigart, 9 S. & R.
598. 885; Zeigler «. Gray, 12 S. & R. 42;
" Linscott V. Trask, 36 Me. 150; Union Canal v. Lloyd, 4 Watts & S.
Dame v. Dame, 20 N. H. 28; Colvin 893. See Crandall u. Schroeppel, 4
V. Warford, 20 Md. 357; Field v. Thomp. & C. 78 ; 1 Hun, 557; Rubey
Brown, 24 Grat. 96; Sparks u. Rawls, v. Culbertson, 85 Iowa, 264; Penn v.
17 Ala. 211 ; Nieto v. Carpenter, 21 Edwards, 50 Ala. 63. See fully for
Cal. 455. other cases infra, §§ 1362, 1368.
620
!HAP. XIV.] PRESUMPTIONS : TITLE. [§ 1337.
if negotiable paper under such circumstances, however, is not
jvidence of money lent.^ Nor can a loan be presumed from the
landing of securities from one party to another, but rather the
3ayment of a prior debt.^ Property, also, is presumed to be in
ihe consignee named in a bill of leading.^
Vessels are subject to the same presumption.* Possession,
jherefore, of a ship, under a bill of sale which is void for non-
jompliance with a registry statute, enables a plaintiff to support
m action of trover against a stranger, for converting a part of
:he ship.^ In fine, it may be generally held that a mere naked
possession will entitle a party to maintain trespass or even trover
IS against a wrong-doer.^
Possession, also, will be sufficient evidence of title in an action
Dn a marine policy of insurance ; and the fact of possession will
sustain a recovery until the defendant produces conflicting evi-
dence.''
§ 1337. Even a stranger, by the fact of producing a document,
presents primd facie evidence for a jury in support of his claim.^
We have an illustration of this in an English case, in which it
was held that the production by a plaintiff of an I O U signed
by the defendant, though not addressed to any one by name, is,
in general, evidence of an account stated between the parties.^
It was held, however, that such evidence may be rebutted by
showing that the writing was not given in acknowledgment of a
debt due.^o
^ Fesenmayer v. Adcock, 16 M. & ' Robertson v. French, 4 East, 130,
W. 449. See Gerding w. Walker, 29 137; Sutton v. Buck, 2 Taunt. 302.
Mo. 426. See Thomas v. Foyle, 5 Esp. 88, per
^ Aubert v. Wash, 4 Taunt. ■ 293 ; Ld. EUenborough.
Boswell V. Smith, 6 C. & P. 60. But » Fesenmayer v. Adcock, 16 M. &
8ee infra, § 1337. W. 449, per Pollock, C. B.
"Lawrence v. Minturn, 17 How. ^ Fesenmayer w. Adcock, 16 M.&W.
100. 449^ qualifying Douglass v. Holme,
* Stacy V. Graham, 3 Duer, 444 ; 12 A. & E. 691 ; Curtis i;. Rickards, 1
Bailey v. New World, 2 Cal. 370. M. & Gr. 47.
" Sutton V. Buck, 2 Taunt. 302. i" Lemere v. Elliott, 30 L. J. Ex.
« Jeffries v. Gt. West. Rail. Co. 5 350; 6 H. & N. 656, S. C; Croker
£• & B. 802. See Sutton v. Buck, 2 v. Walsh, 2 Ir. Law Rep. (N. S.) 552;
Taunt. 309; Fitzpatrick v. Dunphey, Wilson v. Wilson, 14 Com. B. 616,
Irish L. R. 1 N. S. 366 ; Viner v. 626.
Baker, 53 Me. 923; Magee v. Scott, 9
Cush. 150.
521
§ 1338.] THE LAW OF EVIDENCE. [bQOK III.
§ 1338. Lord Plunketfc, in a famous metaphor, has expressed a
Policy of truth in this relation which has been frequently ra-
the law is peated by other courts, if not with the same felicity of
favorable ^ •' . . Ti-
to pre; expression, at least with equal emphasis. "If Time,"
froS!'lap°e said Lord Plunkett, in words afterwards adopted by
0 time. Lord Brougham, "destroys the evidence of title, the
laws have wisely and humanely made length of possession a sub-
stitute for that .which has been destroyed. He comes with his
scythe in one hand to mow down the muniments of our rights ;
but in his other hand the lawgiver has placed an hour-glass, by
which he metes out incessantly those portions of duration, which
render needless the evidence that he has swept away." ^ The
weight to be attached to presumptions of this class, as dispen-
sers of security and enhancers of value, has been recognized by
a series of eminent Pennsylvania judges, " Now, when we add
to these considerations and precedents," says Agnew, C. J., in
1875, " the weight always attached to the lapse of time, in rais-
ing presum tions and quieting titles, as the means of maintain-
ing peace, order, and economy in the relations of civil society,
there can be but one right conclusion in this case. The impor-
tance of such presumptions is stated with great emphasis and
fulness of reference to authorities, by Justice Kennedy, in Bellas
V. Levan,2 which he sums up in this conclusion : It is too ob-
vious not to be seen and felt by every one how very important it
is to the best interests of the state, that titles to lands, instead
of being weakened and impaired by lapse of time, should be
strengthened, until they shall become incontrovertibly confirmed
by it."^ The presumptions which are thus favored, it should at
1 See " Statesmen of the Time of more accurate than any other, as it
George III.," by Ld. Brougham (3d was furnished to the chancellor by
ed.), p. 227, n. The above passage one of the counsel in t)ie quare impe-
has been variously rendered in differ- dit, on the trial of which Ld. Plunkett
ent publications. In the case of Ma- made use of the imagery in his ad-
lone V. O'Connor, Napier, Ch., cited dress to the jury. Taylor's Evid.§ 6 i.
it as follows : " Time, with the one See, also, remarks in "Whart. Cr. L. §
hand, mows down the muniments of 144 a, and passage from Demosthenes
our titles; with the other, he metes there cited,
out the portions of duration which ^ 4 Watts, 294.
render these muniments no longer 8 « The application of this doctrine
necessary." Drury's Cas. in Ch. temp, to chamber surveys," so the same
Napier, 644. This version is probably opinion goes on to say, " is a striking
622
CHAP. XIV.]
PRESUMPTIONS: TITLK.
[§ 1339.
the same time be remembered, apply only to such possession as
gives title under the statute of limitations, or is so long and un-
disputed as to imply acquiescence on the part of, if not grants
from, adverse interests.
§ 1339. It has been observed in a prior cbapter,i that when
system has been established, in connection with a lit- soii of
igated fact, the conditions of other members of the pj-fsJ^Ji
same system may be proved. It is to the same general '° belong
principle that we may trace a presumption, often recog- proprietor,
nized, that the soil to the middle of a highway belongs to the
owner of the adjoining land.^ The presumption, however, may
be rebutted by showing that the road and the adjoining land be-
longed to different proprietors ; ^ or that there was an adverse
proprietorship in a stranger.* But the use of a private right of
way gives no presumption of ownership of the soil.^
example. Caul u. Spring, 2 Watts,
390; Oyster v. Bellas, Ibid. 397; Nie-
man v. Ward, 1 W. & S. 68. Justice
Kennedy, in Bellas v. Levan, supra,
says : ' Twenty years (now twenty-
one) from the return of survey by the
deputy into the surveyor general's of-
fice, were held (referring to Caul v.
Spring) to be sufficient to raise an ab-
solute and conclusive presumption that
the survey was rightly made.' ' And
that,' said C. J. Black, ' even where
there was an unexecuted order of re-
survey by the board of property,' re-
ferring to Collins V. Barclay, 7 Barr, 6 7.
'In short,' continued Judge Black,
'the courts of this state seem uniform-
ly, and especially of late, to have re-
fused to go back more than twenty-
one years to settle any difficulties about
the issue of warrants or patents, or
the making or returning of surveys, or
the payment of purchase money to the
commonwealth.' Stimpfler v. Roberts,
6 Harris, 299. On the subject of pre-
sumptions from lapse of time, see,
also, Mock V. Astley, 13 S. & R.
382; Goddardi;. Gloninger, 5 Watts,
209 ; Nieman v. Ward, 1 W. & S.
68; Ormsby v. Impsen, 10 Casey,
462 ; McBarron v. Gilbert, 6 Wright,
279. In the case before us, the sur-
veys of Gray were made and accepted
thirty-three years before the issuing
of John Bitler's warrant, and thirty-
five years before the survey made upon
it." Fritz V. Brandon, 78 Penn. St. 355.
' Supra, § 44.
2 Doe V. Pearsay, 7 B. & C. 304 ; 9
D. & R. 908, S. C. ; Steel v. Priekett,
2 Stark. R. 463, per Abbott, C. J. ;
Cooke V. Green, 11 Price, 736; Seoones
V. Morrell, 1 Beav. 251 ; Simpson v.
Dendy, 8 Com. B. (N. S.) 433; Ber-
ridge v. Ward, 10 Com. B. (N. S.)
400 ; R. V. Strand Board of Works,
4 B. & S. 526 ; 2 Smith's Lead.
Cas. 5th Am. ed. 216; Harris v. El-
liott, 10 Pet. 53; Morrow v. Willard,
30 Vt. 118; Newhall v. Ireson, 8
Cush. 595 ; Child v. Starr, 4 Hill,
369 ; Winter v. Peterson, 4 Zab. 527;
Cox V. Freedly, 33 Penn. St. 124.
s Headlam v. Hedley, Holt, N. P.
R. 463.
< Doe V. Hampson, 4 C. B. 269.
6 Smith V. Howden, 14 C. B. (N.
S.) 398.
523
§ 1342.] THE LAW OF EVIDENCE. [BOOK m.
§ 1340. Another illustration of the same rule is to be found in
g„ (,f an English decision, that where farms belonging to dif-
hedges and f erent owners are separated by a hedge and ditch, the
hedge is presumed (so far as concerns the burden of
proof) to belong to the owner of the land which does not contain
the ditch.^ On the other hand, it is argued that when partition
walls are used in common by the owners of the houses or lands
thus separated, it will be presumed, primd facie, that the wall,
and the land on which it stands, belong to them in equal moi-
eties as tenants in common.^ This presumption, however, yields
to proof that the wall is built on land parts of which were sep-
arately contributed by each proprietor.^ A bank or boundary of
earth, taken from the adjacent soil, on the other hand, is presumed
pro tanto to belong to the proprietor of the adjacent land.*
§ 1341. Unless there is an express limitation by way of bound-
Soil under ^^1 shown on the title of a party claiming, it is pre-
waterpre- sumed that the soil of unnavigable rivers, usque ad
belong to medium filum aquae, together with the right of fishing,^
land adja- but not the right of abridging the width or interfering
with the course of the stream,^ belongs to the owner of
the adjacent land.'^ On the other hand, as to navigable rivers
and arms of the sea, the soil primd facie is vested in the sover-
eign and the ^shery primd facie is public.^
So of alia- § 1342. Alluvion is presumed to belong to the owner
'"'°" of the land upon which it is formed.^ The same rule
1 Guy V. West, 2 Sel. N. P. 1296, . « Bickett D.Morris, 1 Law Rep. H.
per Bayley, J. L. Sc. 47.
2 Cubitt V. Porter, 8 B. C. 257; 2 ' Carter v. Murcot, 4 Burr. 2163;
M-. & R. 267, S. C; "Wiltshire v. Sid- Wishart v. Wyllie, 1 Macq. Sc. Cas.
ford, 1 M. & R. 404; 8 B. & C. 259, H. of L. 389; Lord v. Commiss. for
n., S. C. ; Washburn on Easements, City of Sydney, 12 Moo. P. C. K.
ch. 4, § 3. See Doane v. Badger, 12 473; Crossley t'. Lightowler, Law Kep.
Mass. 65; Campbell v. Mesier, 4 8 Eq. 279; Law Rep. 2 Ch. Ap. 478,
Johns. Ch. 334. S. C.
" Matts V. Hawkins, 5 Taunt. 20 ; ' Carter o. Murcot, 4 Burr. 2163;
Marly v. McDermott, 8 A. & E. 138; Maleomson v. O'Dea, 10 H. of L.
3 N. &P. 256. Cas. 593; 8 Washb. Real Prop. 56;
* Callis on Sewers, 4th ed. 74; D. Blundell v. Catterall, 5 B. & A. 298,
of Newcastle v. Clark, 8 Taunt. 627, 298,
628, per Park, J. 'Banks v. Ogden, 2 Wall. 57;
6 See Marshall v. Nav. Co. 8 B. & Saulet v. Shepherd, 4 Wall. 508 ;
S. 732. Granger v. Swart, 1 Woolw. 88 ; The
524
lAP. XIV.] PRESUMPTIONS : TITLE. [§ 1346.
)lds as to alluvion on the sea-shore ; though it has been ruled
at where the sea retreats suddenly, leaving uncovered a tract
land, the title to this tract belongs to the state.^ It is scarcely
jcessary to add that presumptions in all cases of title of this
ass are controlled by the specific limitations of deeds. ^
§ 1343. A tree is presumed to belong to the owner of the
,nd from which its trunk arises, though its roots ex- ,j^^^^
!nd into an adjacent estate.^ When the tree grows sumedto
1 a boundary, it has been argued that the property in owner of
16 tree is presumed to be in the owner of that land in
'hich it was first sown or planted.* The weight of authority,
owever, in such case, is that the tree is owned in common by
16 land-owners.^
§ 1344. Primd facie, the ownership of subjacent g^ ^^ ^^^_
linerals is imputed to the owner of the surface.^ erals.
§ 1345. But this presumption readily yields to proo of a
rant of the minerals to a stranger.^ The right, so it has
e6n held, is one of the ordinary incidents of property in
md, and is not founded on any presumption of a grant or an
asement.^
§ 1346. A common system of title,^ or a unity of grant, gives a
Ichools V. Risley, 10 Wall. 91 ; Deer- 30 ; Harris v. Ryding, 5 M. & W.
eldo. Arms, 17 Pick. 41; Trustees v. 60; Roberts v. Haines, 6 E. & B.
Mckinson, 9 Cush. 544. 643; aff. in Ex. Ch., Haines v. Eob-
' Att'y Gen. v. Chambers, 4 De G. erts, 7 E. & B. 625; Rowbotham v.
:J. 56; Emans y. TurnbuU, 2 Johns. Wilson, 6 E. & B. 593; 8 E. &
22; St. Clair w. Lovingston, 23 Wall. B. 123, S. C. in Ex. Ch.; 8 H. of
^- L. Gas. 348; Caledonian Rail. Co. v.
^ See 3 Wash, on Real Est. 4th ed. Sprot, 2 Macq. Sc. Cas. H. of L.
20 et seq. 449.
' ClaflinK. Carpenter, 4 Mete. 580; ' Adams v. Briggs, 7 Cush. 366;
loffman v. Armstrong, 48 N. Y. 201. Caldwell v. Fulton, 31 Penn. St. 478;
"o'
* Holder u. Coates, M. & M. 112, Caldwell v. Copeland, 37 Penn. St.
ler Littledale, J.; Masters v. PoUie, 427; Clement v. Youngman, 40 Penn.
' Roll. R. 141; contra, Waterman v. St. 341; Armstrong v. Caldwell, 53
ioper, 1 Ld. Ray. 737; Anon. 2 Roll. Penn. St. 287. See Yale's Title to
''■ 255. California Lands.
' 1 Wash, on Real Prop. 12; Griffin « Backhouse v. Bonomi, 9 H. of L.
'•Bixby, 12 N. H. 454; Skinner v. Cas. 503. Also, Wakefield v. Buc-
iVilder, 38 Vt. 45 ; Dubois v. Beaver, cleuch. Law Rep. 4 Eq. 613, per Ma-
'5 N. Y. 115. lins, V. C; Taylor's Ev. § 106.
' Humphries v. Brogden, 12 Q. B. ' Suprd, § 44.
'M) 746; Smart v. Norton, 5 E. & B.
525
§ 1346.]
THE LAW OF EVIDENCE.
[book m.
primd fade right, bo has it been held, to the proprietor of an
Easeme upper story to the support of the lower story ; and, on
may be the same principle, the owner of the lower story has a
from unity primd fade claim to the shelter naturally afforded by
0 grant. ^^^ upper rooms.^ When there are two adjoining
closes, also, belonging to different owners, taking from a com-
mon vendor, the owner of the one has primd fade a limited
right 2 to the lateral support of the other.^ The right, however,
does not justify the imposition of an additional weight by the
erection of new buildings.* And the right, either to support or
drainage, may be sustained when both proprietors take the prop-
erty as it stands, from a common grantor.^ It has, however,
been held by Lord Westbury, where a dock and a wharf be-
longing to A. were so situated that the bowsprits of vessels in
the dock for many years projected over a part of the wharf, and
where A. subsequently granted the wharf to B. the law would
not imply a reservation in favor of the vendor of the right for
the bowsprits to project over the wharf as before.^
^ Humphries v. Brogden, 12 Q. B.
747, 756, 757; Caledonian Ry. Co. v.
Sprot, 2 Macq. Sc. Cas. H. of L. 449.
See Foley v. Wyetli, 2 Allen, 131 ;
Lasala v. Holbrooke, 4 Paige, 169; Mc-
Guire V. Grant, 1 Dutch. (N. J.) 356.
^ See Smith v. Thackeray, 1 Law
Rep. C. P. 564; 1 H. & R. 615, S.
C. As to these limits, see Thurston
V. Hancock, 12 Mass. 226.
s 2 Roll. Abr. 564, Trespass, J.
pi. 1; Taylor's Ev. § 106.
< Murchie v. Black, 34 L. J. C. P.
337; Farrand ». Marshall, 21 Bai-b.
409. As to right of support based on
twenty years' possession, see Wyatt
V. Harrison, 3 B. & Ad. 871; Hide v.
Thornborough, 2 C. & Kir. 250; Par-
tridge V. Scott, 3 M. & W. 220; Hum-
phries I-. Brogden, 12 Q. B. 748-750;
Richart v. Scott, 7 Watts, 460.
* See Murchie v. Black, 34 L. J. C.
P. 337; Washburne on Easements, 556 ;
Richards v. Rose, 9 Ex. R. 218; U.
S. V. Appleton, 1 Sumn. 492; Par-
626
tridge v. Gilbert, 15 N. T. 601. See
Solomon B. Vintners' Co. 4 H. & N.
585; Pyer v. Carter, 1 Hurl. & Nor.
916; Hall r. Lund, 32 L. J. Exch.
113. See, however, as greatly qual-
ifying this conclusion, Suffield ».
Brown, 3 New R. 343; Carbery i.
Willis, 7 Allen, 369 ; Randell v. Mc-
Laughlin, 10 Allen, 366; Butterworth
V. Crawford, 46 N. Y. 349.
8 Suffield V. Brown, 3 New R. 340;
33 L. J. Ch. 249 ; S. C.per Ld. West-
bury, Ch., reversing a decision of Kom-
illy, M. R. 2 New R. 378; Taylor's
Ev. § 106. As dissenting from Lord
Westbury's reasoning, however, we
may notice the argument of the court
in Pyer v. Carter, ut supra, and the
conclusions in Huttemeier v. Albro, 18
N. Y. 52; and McCarty v. Kitclien-
mann, 47 Penn. St. 248. See, also,
Leonard v. Leonard, 7 Allen, 288; but
see, as according with the principle of
Suffield V. Brown, Randall v. Mc-
Laughlin, 10 Allen, 866.
CHAP. XIV.]
PRESUMPTIONS : TITLE.
[§ 1349.
§ 1347. Where a title, good in substance, is held, and when
there is undisputed possession, consistent with such wheretitie
title, for twenty years, or for a period which other sj^bstan-
circumstances make .equivalent to twenty years, missing exists, and
links, of a formal character, may be presumed (as a longpos-
presumption of fact, based on all the circumstances of missing
the case) against adverse parties who, when competent be pre™
to dispute such possession, have acquiesced in it.^ sumed.
§ 1348. When there has been continued possession, of the
character stated, the court will presume a grant or
' , . ^ . . . ? , Grants will
letter patent trom the sovereign, as initiating such be so pre-
possession.^ Hence, in England, charters, and even
acts of parliament, have been thus presumed, after long posses-
sion, accompanied by uncontested acts of ownership.^ But a
grant of public lands will not be presumed from uninterrupted
possession of only ten years ;* nor will this presumption be made
in behalf of a party with whose case the presumption is incon-
sistent.^
§ 1349. By the English common law, if a party, and those
' See Best's Evidence, § 392 ; John-
son V. Barnes, L. R. 7 C. P. 593; S.
C. L. R. 8 C. P. 527; Hammond v.
Cooke, 6 Bing. 1 74 ; Attorney Gen. v.
Hospifeal, 17 Beav. 435 ; Burr v. Gal-
loway, 1 McLean, 496 ; Clements v.
Machboeuf, Sup. Ct. TJ. S. 1876; Hill
V. Lord, 48 Me. 83 ; Brattle v. BuUard,
2 Mete. 363 ; Valentine v. Piper, 22
Pick. 85 ; White v. Loring, 24 Pick.
319; Jackson v. McCall, 10 Johns.
377; Cuttle v. Brockway, 24 Penn. St.
145; Cheney u. Walkins, 2 Har. & J.
96; Coulson v. Wells, 21 La. An. 383;
Paschall v. Dangerfield, 37 Tex. 273.
See, as indicating limits of this rule,
Hanson v. Eustace, 2 How. 653 ; Nichol
V. McCalisfer, 62 Ind. 586; and see,
for specifications, infra, § 1852.
" Lopez V. Andrews, 3 M. & R. 329 ;
Law N. S. 132; Healey v. Thurm,
L. R. 4 G. L. 495 ; Reed v. Brookman,
3 T. R. 158 ; Pickering v. Stamford,
2 Ves. Jun. 583; Townsend v. Down-
er, 32 Vt. 183; Emans v. Turnbull, 2
Johns. R. 313 ; Jackson v. McCall, 10
Johns. R. 377; Mather v. Trinity Ch.
3 S. & R. 509 ; Cuttle v. Brockway,
24 Penn. St. 145 ; Williams v. Donell,
2 Head, 695 ; Rooker v. Perkins, 14
Wise. 79 ; Beatty v. Michon, 9 La.
An. 102 ; Grimes v. Bastrop, 26 Tex.
310.
8 Delarue v. Church, 2 L. J. Ch.
113; Little v. Wingfield, 11 Ir. Law
R. N. S. 63; Roe v. Ireland, 11 East,
280; Goodtitle n. Baldwin, Ibid. 488;
Att. Gen. v. Ewelme Hospital, 17
Beav. 366 ; and see Johnson v. Barnes,
L. R. 7 C. P. 593 ; S. C. L. R. 8 C.
Mayor v. Horner, Cowp. 102; Reed P. 527.
». Brookman, 3 T. R. 158; Attorney ■• Walker v. Hanks, 27 Tex. 535;
General D.Dean of Windsor, 24 Beav. Biencourt v. Parker, 27 Tex. 558.
679 ; Devine v. Wilson, 10 Moore P. ^ Sulphen v. Norris, 44 Tex. 204.
C. R. 527; O'Neill v. Allen, 9 Ir.
527
§ 1349.] THE LAW OF EVIDENCE. [BOOK III.
under whom he claims, have enjoyed from time immemorial
Grant of estates the subject of grant, the presumption that a
reaiSere- grant had been made is irrebuttable, and the right is
presumed ^^^^ ^° ^® Valid. But as it is impossible to prove
after enjoyment from time immemorial, a definite period of
years. uninterrupted possession (e. ff. twenty years as a min-
imum) ^ was considered by the courts as a basis from which
prior indefinite possession might be presumed by the jury. Sub-
sequently this rule was extended by presuming the existence,
not of an ancient, but of a modern grant, from the proof of user,
as of right, for twenty years.^ By Lord Tenterden's Act,^ thirty
years' uninterrupted enjoyment to rights of common or profits d
prendre gives a primd facie title, and sixty years adverse pos-
session an absolute title. The limits as to rights of way, ease-
mentsj and water-courses, are reduced to twenty and forty years
respectively.* Prior to Lord Tenterden's Act, "it became a
usual mode of claiming title to an incorporeal hereditament (for
it is to incorporeal hereditaments alone that title by prescription
applies at common law) " to allege a feigned grant, within the
time of legal memory, from some owner of the land, or other
person capable of making such grant, to some tenant, or person
capable of receiving it, setting forth the names of the supposed
parties to the document, with the excuse of profert that the docu-
ment had been lost by time or accident. On a traverse of the
grant, proof of uninterrupted enjoyment for twenty years was
held cogent proof of its existence ; and this was termed making
title by non-existing grant. "^ The same presumption, as to the
grant of an incorporeal hereditament, based on enjoyment for
twenty years, has been sustained in this country." But there
1 Bailey v. Appleyard, 3 N. & P. 257. ^ Best's Evidence, § 377.
2 See Reed v. Brookman, 3 T. R. ^ Tudor's Leading Cases, 114;
151 ; 1 Brown & Hadley, Com. 424. Washburn on Easements, 3d ed. 110;
8 2 & 3 Will. 4, c. 71. 2 Washb. Real Prop. (4th ed.) 319 ;
* For cases construing this statute, Ricard v. Williams, 7 Wheat. 109;
see Lowe v. Carpenter, 6 Exch. 825; Farrar v. Merrill, 1 Greenl. 17; Bul-
Warburton v. Parke, 2 H. & N. 64 ; len v. Runnels, 2 N. II. 255 ; Valen-
Blewett V. Tregonning, 3 A. & E. 554 ; tine v. Piper, 22 Pick. 93 ; Melvin i;.
Wilkinson v. Proud, 11 M. & W. 33 ; Locks, 17 Pick. 255; Brattle St. Ch.
Cooper V. Hubbuck, 12 C. B. (N. S.) v. BuUard, 2 Mete. 363; Sibley v. El-
456 ; Shuttleworth v. Le Fleming, 19 lis, 11 Gray, 417 ; Ingraham v. Hutch-
C. B. (N. S.) 687. inson, 2 Conn. 584; Emans v. Turn-
628
CHAP. XIV.]
PEESUMPTipNS : TITLE.
[§ 1350.
must be an exclusive enjoyment for twenty years to sustain such
presumption ; and the presumption may be rebutted by proof of
lack of such enjoyment.^ Thus a general usage (e. g. that of
leaving lumber on a river bank), when not accompanied by claim
of title, and exclusive occupation, gives no foundation to the pre-
sumption of a grant.^
§ 1350. It should also be remembered that the grant, to be
presumed against the owner of the inheritance, must have been
with his acquiescence ; acquiescence by a tenant for life, or other
subordinate party, will not be enough to incumber the fee.* To
this acquiescence, a knowledge of the easement is essential. If
there be no such knowledge (e. g. where water percolates
through undefined subterranean passages), no length of time can
bull, 2 Johns. R. 313; Benbow v.
Eobbins, 71 N. C. 338; Hall v. Mc-
Leod, 2 Mete. (Ky.) 98. See Glass
V. Gilbert, 58 Penn. St. 266 ; McCarty
u. McCarty, 2 Strobh. 6.
In Pennsylvania, while it is doubted
whether a legal prescription is recog-
nized (Rogers, J., Keed v. Goodyear,
17 S. & R. 352), yet the presumption
stated in the text, as to incorporeal
hereditaments, is established. Ibid.,
citing Tilghman, C. J., in Kingston
V. Leslie, 10 S. & R. 383 ; and ap-
proved, in 1875, by Agnew, C. J., in
Carter v. Tinicum Fishing Co. 77
Penn. St. 315; quoted infra, § 1352.
1 Livett V. Wilson, 3 Bing. 115
Dawson v. Norfolk, 1 Price, 246
Hurst i;. McNiel, 1 Wash. C. C. 70
Eowell V. Montville, 4 Greenl. 270,
Nichols 1). Gates, 1 Conn. 318; Brant
V. Ogden, 1 Johns. R. 156 ; Palmer
V. Hicks, 6 Johns. B. 133 ; Irwin v.
Fowler, 5 Robt. (N. Y.) 482 ; Burke
c. Hammond, 76 Penn. St. 179 ; Field
a. Brown, 24 Grat. 74; Best's Ev. § 378.
1^ The time, it should be noticed,
|! varies with local law. " In Connecti-
cut it is fifteen years, in analogy to its
statute of limitations. Sherwood v.
■ Burr, 4 Day, 244-249. In Pennsyl-
vauia, twenty-one years. Strickler
I VOL. u. 34
V. Todd, 10 S. & R. 63, and cases
cited infra. In Massachusetts, twenty
years. Sargent v. Ballard, 9 Pick.
251, 254." 2 Washb. Real Prop. 4th
ed. 319.
As to presumptive rights to fences,
in Maine, see Harlow v. Stinson, 60
Me. 349.
Where a fishing mill-dam built more
than 110 years before 1861, in the river
Derwent, in Cumberland (the river at
the place not being navigable), was
used more than sixty years before
1861, in the manner in which it was
used in 1861, a presumption was held
to exist, of a grant from the proprie-
tors of adjacent lands whose rights
were thereby affected. Leconfield v.
Lonsdale, L. R. 5 C. P. 657.
^ Bethum v. Turner, 1 Greenl. Ill;
Tickham i^. Arnold, 3 Greenl. 120.
« Best's Ev. § 379, citing 2 Wms,
Saund. 175; and see Wood v. Veal,
5 Barn. & Aid. 464 ; Daniel v. North,
11 East, 372; Ricard v. Williams, 7
Wheat. 59. Cooper v. Smith, 9 S,
6 R. 26; Edson v. Munsell, 10 Al-
len, 568; Stevens v. Taft, 11 Gray,
33; Smith v. Miller, 11 Gray, 148 ;
Coalter v. Hunter, 4 Rand. 58 ; Nich-
ols V. Aylor, 7 Leigh, 546 ; Biddle ».
Ash, 2 Ashm. 211. Supra, § 1161.
529
§ 1350.] THE LAW OF EVIDENCE. [BOOK III.
establish acquiescence.^ But the acquiescence of the owner may
be established inferentially.^ Thus, after evidence was given of
user by the public of an alleged public way for nearly seventy
years, during the whole of which period the land had been on
lease, it was held that from these facts the jury were at liberty
to infer a dedication to the public use by the owner of the in-
heritance.^
It need scarcely be added that the presumption of title to an
easement merely from twenty years' possession is only primd
facie, and may be rebutted.^ When, however, it appears that this
enjoyment has for the period in question been acquiesced in by
the owner of the inheritance, this may estop him from disputing
the right to the easement ; and in such case the presumption may
be treated as irrebuttable, — not because it is technically a, prae-
sumtio juris et de jure, but because it is an inference which
there is no one who can rebut. " It may, therefore, be stated as
a general proposition of law, that if there has been an uninter-
rupted user and enjoyment of an easement, a stream of water,
for instance, in a particular way, for more than twenty-one, or
twenty, or such other period of years as answers to the local
period of limitation, it affords conclusive presumption of right in
the party who shall have enjoyed it, provided such use and en-
joyment be not by authority of law, or by or under some agree-
ment between the owner of the inheritance and the party who
shall have enjoyed it." ^
1 Chasemore v. Richards, 7 H. of & R. 63; Olney v. Fenner, 2 R. I.
L. Cas. 349. 211 ; Pillsbury v. Moore, 44 Me. 154 ;
2 Gray J). Bond, 2 B. & B. 667. Belknap v. Trimble, 3 Paige, 577;
' Winterbottom v. Derby, L. R. 2 Townshend v. McDonald, 2 Kern.
Ex. 316. 881; Hazard v. Robinson, 3 Mason,
* Livett V. Wilson, 3 Bing. 115; 272; Wilson v. Wilson, 4 Dev. (N.
Campbell D.Wilson, 3 East, 294; Be- C.) 154; Gayetty v. Bethune, 14
thum V. Turner, 1 Greenl. Ill; Tyler Mass. 51 ; Parker v. Foote, 19 Wend.
t). Wilkinson, 4 Mason, 397; Sargent 309; Corning v. Gould, 16 Wend.
t'. Ballard, 9 Pick. 251; Corning v. 531; Hall v. McLeod, 2 Mete. (Ky.)
Gould, 16 Wend. 531 ; Cooper v. 98; Wallace v. Fletcher, 10 Foster,
Smith, 9 S. & R..26; Wilson v. Wil- 434; Winnipiseogee Co. i'. Young, 40
son, 4 Dev. 154; Ingraham v. Hough, N. H. 420; Tracy v. Atherton,8G Vt.
1 Jones (N. C), 39 ; Lamb v. Cross- 512 ; Burnham v. Kempton, 44 N. H.
land, 4 Rich. 636. 88. See Leoonfield v. Lonsdale, L. E.
5 Washburn on Easements, 3d ed. 5 C. P. 657; and see opinion of Agnew,
114, citing Strickler v. Todd, 10 S. C. J., in Carter v. Tinecum Fishing
630
CHAP. XIV.J
PRESUMPTIONS : TITLE.
[§ 1352.
§ 1351. It must be repeated that a possession for less than
twenty years can be helped out by proof of other circumstances,
so as to enable a grant to be presumed.-' The presumption in
such case is one of fact, for the jury, under the instructions of
the court.^ And among the circumstances which will sustain
such a presumption is to be considered such acquiescence by ad-
verse interests as approaches an estoppel.^
§ 1352. Intermediate deeds of conveyance of interests in free-
hold may, on like principles, be inferred in cases where g^ ^^ -^^
there has been quiet possession for at least twenty teimediate
. . deeds and
years,* or when after long continued possession there is other pro-
conduct equivalent to an estoppel, which may be im-
puted to the party from whom the deed is presumed.® In such
Co. 77 Penn. St. 315, quoted infra,
§ 1,352.
Duncan, J., in Strickler v. Todd,
10 S. & R. 63, speaks of an " unin-
terrupted exclusive enjoyment above
twenty-one years" of a water privi-
lege as affording a " conclusive pre-
sumption;" but this must be under-
stood, in order to reconcile tlie case
with other Pennsylvania rulings, to
mean "conclusive proof of prescrip-
tion."
' See supra, §§ 1347, 1348; and see
Bright f. Walker, 1 C, M. & R. 222,
223, per Parke, B.; Stamford v. Dun-
bar, 13 M. & W. 822, 827 ; Lowe v.
Carpenter, 6 Ex. R. 830, 831, per
Parke, B.; Taylor, § 111.
' Doe V. Cleveland, 9 B. & C. 844 ;
Doe u. Davies, 2 M. & W. 503 ; Foulk
!). Brown, 2 Watts, 214 ; Carter v.
Tinicum Fishing Co. 77 Penn. St.
310.
' Doe V. Helder, 3 B. & Aid. 790 ;
Kingston v. Leslie, 10 S. & R. 383 ;
Foulk V. Brown, 2 Watts, 214.
* See supra, § 1347 ; Knight p. Ad-
amson, 2 Freem. 106 ; Wilson v. Al-
len, 1 Jae. & W. 611 ; Tenny v. Jones,
3 M. & Scott, 472 ; Cooke v. Soltan,
2 S. & St. 154; Parrer v. Merrill,
1 Greenl. 17 ; Stockbridge v. West
Stookbridge, 14 Mass. 257; Com. v.
Low, 3 Pick. 408 ; Melvin v. Locks,
17 Pick. 255; White v. Loring, 24
Pick. 319 ; Ryder v. Hathaway, 21
Pick. 298 ; Brattle v. Bullard, 2 Mete.
363 ; Attorney General v. Meeting-
house, 3 Gray, 1, 62 ; Jackson v. Mur-
ray, 7 Johns. R. 5 ; Livingston v. Liv-
ingston, 4 Johns. Ch. 287; Burke v.
Hammond, 76 Penn. St. 179 ; Cheney
V. Walkins, 2 Har. & J. 96 ; Jefferson
Co. V. Ferguson, 13 111. 33 ; Riddle-
honer v. Kinard, 1 Hill (S. C.) Ch.
376; Nixon v. Car Co. 28 Miss. 414 ;
Newman v. Studley, 5 Mo. 291 ; Mc-
Nair v. Hunt, 5 Mo. 300.
^ Sergeant, J., Foulk v. Brown, 2
Watts, 214 ; and see Doe v. Hilder, 3
B. & A. 790 ; Cottrell v. Hughes, 15
C. B. 532.
In a case decided in 1875, in Penn-
sylvania, it was shown that Sanderlin
held title to a fishery in 1 748, and that
in 1 754 the fishery, on proceedings in
partition, was adjudged to " the rep-
resentatives of Mary (his daughter),
late wife of James," subject to a
ground rent, the whole estate being
divided into five shares. Elizabeth
and others, reciting that they were
heirs of " James, who was an lieir of
Sanderlin," conveyed in 1805 to Car-
531
§ 1352.]
THE LAW OF EVIDENCE.
[book III.
case, possession will justify the presumption, provided it be ex-
clusive and continuous.^ Hence it has been held in England,
ter; the deed also recited the proceed-
ings in partition ; also prior deeds
reciting the partition, and that the
grantors were heirs of other heirs of
Sanderlin, and conveying to Carter
their interest in two fifths of the fish-
ery. There was no other evidence of
the pedigree of the grantors, nor of
any claim by the descendants of San-
derlin for the fishery. This was held
sufficient to raise a presumption of
a grant, to make a good title to Car-
ter of the fishery. Carter v. Tinicum
Fishing Co. 77 Penn. St. 310.
In this case we have from Agnew,
C. J., the following valuable summary
of the Pennsylvania cases : —
" Presumptions arising from great
lapse of time and non-claim are ad-
mitted sources of evidence, which a
court is bound to submit to a jury,
as the foundation of title by convey-
ances long since lost or destroyed.
" This is stated by C. J. Tilghman,
in Kingston v. Leslie, 10 S. & R. 383.
There the absence of all claim for
years, on the part of a female branch
of a family, represented by Honorie
Herrman, at an early day was held to
constitute a ground to presume that
her title had been vested in the male
branch. Judge Tilghman remarked :
' I do not know that there is any posi-
tive rule defining the time necessary
to create a presumption of a convey-
ance. In the case of easements and
other incorporeal hereditaments, which
do not admit of actual possession, the
period required by law for a bar by
the statute of limitations is usually
esteemed sufficient ground for a pre-
sumption.' This doctrine of lapse of
time is discussed at large by Justice
Rogers, in Reed v. Goodyear, 1 7 S. &
R. 352, 353. ' The courts of law,' he
remarks, 'pay especial attention to
rights acquired by length of time.
Although it has been doubted (he
says) whether a legal prescription ex-
ists in Pennsylvania, yet the doctrine
of presumption prevails in many in-
stances.' He quotes and approves
the language of Chief Justice TUgh-
man, in Kingston v. Leslie, in relation
to presumptions in the case of ease-
ments and incorporeal hereditaments,
and adds : ' The rational ground for
a presumption is where, from the con-
duct of the party, you must suppose
an abandonment of his right.' Among
the cases he cites is one directly ap-
plicable to a fishery: ' So a plaintiff
had forty years' possession of a pis-
cary; the court decreed the defend-
ants to surrender and release their
title to the same, though the surren-
der made by the defendants' ancestor
was defective; ' Penrose o. Trelawney,
cited in Vernon, 196. Justice Ser-
geant said, in Foulk v. Brown, 2
Watts, 214, 215, ' The court will not
encourage the laches and indolence of
parties, but will presume, after a great
lapse of time, some compensation or
release to have been made ; thus length
of time does not operate as a positive
bar, but as furnishing evidence that
the demand is satisfied. But it is evi-
dence from which, when not rebutted,
the jury is bound to draw a conclu-
sion, though the courts cannot.' Again
he says: 'The rule of presumption,
when traced to its foundation, is a
rule of convenience and policy, the
result of a necessary regard for the
peace and security of society. Jus-
tice cannot be satisfactorily done
where parties and witnesses are dead.
I Doe t'. Gardiner, 12 C. B. 319; Burke v. Hammond, 76 Penn. St.
532
179.
CHAP. XIV.]
PRESUMPTIONS: TITLE.
[§ 1352.
that where the plaintiff's title rests on feoffment, and he shows
that he has had uninterrupted enjoyment of the premises for
twenty years, without molestation from the feoffor, the jury will
be entitled to presume, in his favoi*, that the necessary formali-
ties of a livery of seisin took place.^ So, as we have seen, under
voucliers lost, or thrown away, and a
new generation has appeared on the
stage of life, unacquainted with the
affairs of a past age and often re-
gardless of them. Papers which our
predecessors have carefully preserved
are often thrown aside or retained as
useless by their successors.' Acts of
ownership over incorporeal heredita-
ments, corresponding to the possession
of corporeal, are deemed a foundation
for a presumption. ' The execution
of a deed,' says Gibson, C. J., ' is
presumed from possession in conform-
ity to it for thirty years ; and why the
existence of a deed should not be pre-
sumed from acts of ownership for the
same period, which are equivalent to
possession, it would not be easy to de-
termine.' Taylor v. Dougherty, 1 W.
& S. 327. And, said Black, C. J.,
in Garrett v. Jackson, 8 Harris, 335:
' But where one uses an easement
whenever he sees fit, without asking
leave, and without objection, it is ad-
verse, and an uninterrupted enjoy-
ment for twenty-one years is a title
which cannot be afterwards disputed.
Such enjoyment, without evidence to
explain how it begun, is presumed to
have been in pursuance of a full and
unqualified grant.' This is repeated
by Justice Woodward, in Pierce r.
Cloud, 6 Wright, 102-114. See his
remarks also in Fox v. Thompson, 7
Casey, 174, that links in title are sup-
plied by long and unquestioned asser-
tion of title. The same principles are
repeated by the late C. J. Thompson,
in Warner v. Henby, 12 Wright, 190.
The necessity of relaxing the rules
of evidence in matters of ancient date
was shown in Richards v. Elwell, 12
Wright, 361, a case of parol bargain
and sale of land, and possession for
forty years. The court below held
the party to the same strictness of
proof required in a recent case. It
was there said by this court : ' If the
rule which requires proof to bring the
parties face to face, and to hear them
make the bargain, or repeat it, and to
state all its terms with precision and
satisfaction, is not to be relaxed after
the lapse of forty years, when shall it
be 7 It is contrary to the presump-
tions raised in all other oases, — pre-
sumptions which are used to cut off
and destroy rights and titles founded
upon records, deeds, wills, and the
most solemn acts of men. Based upon
a much shorter time, we have the pre-
sumptions of a deed, grant, release,
payment of money, abandonment, and
the like.' And again : ' There is a
time when the rules of evidence must
be relaxed. We cannot summon wit-
nesses from the grave, rake memory
from its ashes, or give freshness and
vigor to the dull and torpid brain.'
The same principles are held in the
following cases : Turner v. Waterson,
4 W. & S. 171; Hastings v. Wag-
ner, 7 Ibid. 215 ; Brock v. Savage, 10
Wright, 83." Agnew, C. J., Carter
V. Tinicura Fishing Co. 77 Penn. St.
315. See, also, to same effect, Brown
V. Day, 78 Penn. St. 129.
1 Kees V. Lloyd, Wightw. 123; Doe
V. Cleveland, 9 B. & C. 864 ; 4 M. &
K. 666, S. C. ; Doe v. Davies, 2 M. &
W. 503; Doe t'. Gardiner, 12 Com. B.
319.
533
§ 1353.J
THE LAW OF EVIDENCE.
[book III.
similar conditions, the formalities of deeds will be presumed to
have been duly executed, when this does not contradict the deeds
themselves. 1
§ 1353. On the principle, and with the limitations just stated,
Instances the courts have held that after a long extended contin-
tftie'so ^ "* uous possession, acquiesced in by parties capable of con-
Buppiied. testing such possession, juries could rightfully presume
the execution of ancient deeds of partition ; ^ of ancient wills,
so far as the curing of defects of execution ; ^ of powers to agents
to make conveyances ; * of deeds by agents shown to have had
due power to convey ; ^ of deeds of conveyance by trustees to
beneficial owner.^ The same presumption has extended to the
enrolment as a preliminary to the assignment of a term by A.
to secure the payment of an annuity to B. of the annuity,^ to the
due execution of deeds and wills ; ^ to the existence of the proper
preliminaries to ancient deeds by land companies ; ^ to the pas-
sage of acts of the legislature, when constitutional and appropri-
» Supra, § 1313.
'^ Hepburn v. Auld, 6 Cranch, 262;
Munroe v. Gates, 48 Me. 463; Society
V. Wheeler, 1 N. H. 310; Alleghany
V. Nelson, 25 Penn. St. 332; llussell
V. Marks, 3 Mete. (Ky.) 37.
8 Hill V. Lord, 48 Me. 83; Maverick
17. Austin, 1 Bailey , 59 ; Morrill v.
Cone, 22 How. 82.
* Stockbridge v. West Stockbridge,
14 Mass. 257; Tarbox v. McAtee, 7
B. Mon. 279.
' Clements v. Macheboeuf, 92 U- S.
(2 Otto) 418; Marr u. Given, 23 Me.
85; Vail v. McKernan, 21 Ind. 421.
See Doe v. Martin, 4 T. R. 39.
In Clements v. Macheboeuf, supra,
it was said by Clifford, J. ; —
" The rule is, that if the deed is
apparently within the scope of the
power, the presumption is, that the
agent performed his duty to his princi-
pal
" Subject to certain exceptions, not
applicable to this case, the general
634
rule is, that the presumption in favor
of the conveyance will be allowed to
prevail in all cases where it was exe-
cuted as matter of duty, either by an
agent or trustee, if the instrument is
regular on its face."
8 3 Sugd. Vend. & Pur. 25 ; Best's
Evidence, §394; Keenew. Deardon, 8
East, 267; Marr v. Gilliam, 1 Coldw.
488; Wilson v. Allen, 1 Jac. & W. 620;
Emery v. Grocock, 6 Madd. 54; Doe
V. Cooke, 6 Bing. 180. And see, as
illustrations of the principle that trus-
tees will he presumed to have con-
veyed when it was their duty so to do,
England v. Slade, 4 T. R. 682 ; Hil-
lary V. Waller, 12 Ves. 239; Doe v.
Lloyd, Pea. Ev. App. 41.
' Doe V. Mason, 3 Camp. 7, per
Lord EUenborough; Doe i'. Bingham,
4 B. & A. 6 72, which was on 53 G. 3,
c. 141. See Lond. & Brigh. Ry. Co.
V. Fairclough, 2 M. & Gr. 674.
' Supra, § 1313.
» Supra, § 1313.
CHAP. XIV. J
PRESUMPTIONS: TITLE.
[§ 1355.
ate ; ^ to the adoption of by-laws, when such by-laws are nec-
essary to explain a usage of long standing ; ^ and to the proof
of death of remote ancestors without issue.^ To tax and admin-
istration sales this presumption is peculiarly applicable.* But
there must be possession taken under the sale, or otherwise time
exercises no curative effect.^
§ 1354. We have already noticed ® that when a record is on
its face complete and authoritative, the burden of proof j^^^^^^ ;„
is on the party by whom it is assailed. We have now yecord win
■'■'•' , .in the same
to advance a step further, and to consider those titles way be
in which, after a long possession, it is discovered, in
making up the title, that one of its record links cannot be found.
Is it not likely that such link once existed, but is now lost ?
The answer to this question depends upon the degree of care
with which records, at the time under consideration, were kept»
and the casualties to which they were exposed. And in deter-
mining the question of the existence of such link, and its subse-
quent loss, a very important point for consideration is the long
acquiescence of adverse parties, — an acquiescence not probable
if the title was bad. Hence it is that the courts have assumed
the existence and loss of such links, after a lapse of time varying
with the conditions under which the records were placed.''
§ 1355. It is otherwise (apart from the statute of limitations)
when in judicial procedures the defects go to want of jurisdiction
* Lopez V. Andrews, 3 Man. & R.
329; R. V. Exeter, 12 A. & E. 532 ; El-
dridge v. Knott, Cowp. 215; McCarty
f. McCarty, 2 Strobh. 6.
2 R. V. Powell, 3 E. & B. 3 77 ; May.
of Hull V. Horner, 1 Cowp. 110, per
Lord Mansfield.
' Roscommon's Claim, 6 CI. & E.
97; Oldham v. Woolley, 8 B. & C. 22.
See McComb v. Wright, 5 Johns. R.
263 ; Hays v. Gribble, 3 B. Mon. 106.
* Austin V. Austin, 50 Me. 74; Col-
man V. Aijderson, 10 Mass. 105 ; Pe-
jobscot V. Ransom, 14 Mass. 145;
Lackawanna Iron Co. v. Fales, 55
Penn. St. 90 ; Heft v. Gephart, 65 Penn.
St. 510. See, as to presuming missing
links, infra, § 1354.
^ Coxe V. Derringer, 78 Penn. St.
271. See S. C. 3 Weekly Notes, 97.
« Supra, § 1304.
' Plowd. 411; Finch L. 399; Crane
V. Morris, 6 Pet. 598 ; Reedy v. Scott,
23 Wall. 352 ; Sagee v. Thomas, 3
Blatch. 11 ; Battles v. Holley, 6 Greenl.
145; Freeman v. Thayer, 33 Me. 76 ;
Winkley v. Kaime, 32 N. H. 268;
Coxe V. Derringer, 78 Penn. St. 271 ;
Plank Road v. Bruce, 6 Md. 457; Mar-
kel V. Evans, 47 Ind. 326; Brecken-
ridge v. Waters, 4 Dana, 620; Alston
V. Alston, 4 S. C. 116; Desverges ».
Desverges, 31 Ga. 753; Wyatt v. Scott,
33 Ala. 313; Austin w. Jordan, 35 Ala.
642; State v. Williamson, 57 Mo. 192;
Palmer v. Boling, 8 Cal. 384 ; Hille-
535
§ 1357.] THE LAW OF EVIDENCE. [BOOK HI.
or other fatal blemish.^ But ordinarily a title, sustained by un-
interrupted enjoyment, will not be permitted to fail because the
record does not set forth every minor detail necessary to make
the proceedings perfect.^ Thus a deed of apprenticeship, under
which the parties acted, will be presumed to have been regularly
executed ; ^ and so defects in the recording of ancient deeds may
be explained by parol.* Wherever, also, an administrative record
is executed, such record will primd facie be regarded as regular.*
§ 1356. A license to relieve a party from a check on a title
License T^^J b^ thus presumed. Thus, in a case where eject-
may be ment was brought to recover a house and lot, which
sumed. Jiad been let for a long term of years, it appeared that
the lease contained a covenant by the lessee that the house
should not be used as a shop without the consent of the lessor,
there being a proviso for reentry on the breach of the covenant.
It was held by the court that the jury could presume a license
from proof of the uninterrupted user of the premises as a beer-
shop for twenty years.^
§ 1357. A substantial title, however, is the prerequisite to the
Title in invocation of the presumptions which have been just
such case stated, for " no case can be put in which any presump-
must be . , , n , . i , , ,
substan- tion has been made, except when a title has been shown
by the party who calls for the presumption, good in
substance, but wanting some collateral matter necessary to make
it complete in point of form. In such case, where the possession
is shown to have been consistent with the existence of the fact
directed to be presumed, and in such case only, has it ever been
allowed." '
brant v. Burton, 17 Tex. 138. As to K. v. Broadhempston, 28 L. J. M. C.
sales by administrators, see Pejobscot 18; 1 E. & E. 154, S. C.
V. Ransom, 14 Mass. 145. * Booge v. Parsons, 2 Vt. 456 ; Bet-
1 Hathaway v. Clark, 5 Pick. 490; tison v. Budd, 21 Ark. 578.
Lytle V. Colts, 27 Penn. St. 193 ; » Sumner v. Sebec, 8 Greenl. 223;
Nichol V. McAlister, 52 Ind. 586. Isbell v. R. R. 25 Conn. 556 ; Farr v.
" See cases cited supra, § 645. Swan, 2 Penn. St. 245; Byington v.
" R. V. Hinckley, 12 East, 861; R. Allen, 11 Iowa, 8. Supra, § 645.
V. Whiston, 4 A. & E. 607; 6 N.&M. « Gibson v. Doeg, 2 H. & N. 615.
65, S. C. ; R. V. Witney, 5 A. & E. As to other presumptions of license,
191 ; 6 N. & M. 552, S. C. ; R. v. see Seneca v. Zalinski, 15 Hun, 571.
Stainforth, 11 Q. B. 66. See, also, R. ' Tindal, C. J., Doe v. Cooke, 6
V. St. Mary Magdalen, 2 E. & B. 809 ; Bing. 179; though see Little v. Win"--
636
CHAP. XIV.] PRESUMPTIONS : TITLE : PAYMENT.
[§ 1360.
8 1358. It need scarcely be added that the presump- P«snmp-
tion of such conveyances is rebuttable by counter-proof.^ buttaUe.
§ 1359. When a deed or will, or other attested document,^ is
thirty years old or upward, and is produced from the Burden on
proper archives or other unsuspected depositary, then P^.'j'y ^^
such document proves itself, and the testimony of the documents
subscribing witness is not necessary, though he may be thirty
called by the contesting party to dispute genuineness.^ ^^^"^ °
The same rule applies in the Roman law.* But where a system
of registry is established by law, no archives can be considered
as giving this primd facie genuineness, except those which the
statute indicates. And in any view, the question is one only of
burden of proof. Documents so protected by age and safe keep-
ing ax& primd facie receivable in evidence ; and the burden is on
him who would resist their admission. But when this is under-
taken by him, then the question of admissibility is to be decided,
as is already shown, by the proof and presumptions belonging to
the concrete case.^
VII. PRESUMPTION OF PAYMENT.
§ 1360. Independent of statutes of limitation, if a bond is
permitted to remain without interest collected, or any preaump-
recos;nition of indebtedness on the part of the debtor, tionofpay-
=■ J^ ' ment after
for twenty years, the law presumes payment, and pro- twenty
ceeds to throw the burden of proving non-payment on
the creditor.^ The same presumption applies to tax claims ;
i^ to
field, 11 Ir. L. R. (N. S.) 63 et seq., as
criticising above passage. Doe v. Gar-
diner, 12 C. B. 319; Richardson v.
Dorr, 5 Vt. 9 ; Warner v. Henby, 48
Penn. St. 187. See, also, Burke v.
Hammond, 76 Penn. St. 179; Win-
stan V. Prevost, 6 La. An. 164 ; and
cases cited supra, §§ 1347 et seq.
' Hurst V. McNiel, 1 Wash. C. C.
70 ; Nieto v. Carpenter, 21 Cal. 455 ;
Chiles V. nonley, 2 Dana, 21 ; Irvin v.
Fowler, 5 Robt. (N. Y.) 482; Nichols
V. Gates, 1 Conn. 318; English v. Reg-
ister, 7 Ga. 387.
' Best's Ev. § 362.
« Burling v. Patterson, 9 C. & P.
570 ; Talbot v. Hodson, 7 Taunt. 251 ;
S. P. Stockbridge v. W. Stockbridge,
14 Mass. 256. See fully supra, § 732.
* Endemann's Beweislehre, §§ 86,
87. See supra, §§ 194, 703, 732.
6 See fully supra, §§ 194, 703, 732,
733.
' Jackson v. Wood, 12 Johns. R.
242; Bird o. Inslee, 23 N. J. Eq.
363; Delaney t). Robinson, 2 Whart.
503; Eby v. Eby, 5 Barr, 435; King
V. Coulter, 2 Grant, 77; Reed v. Reed,
46 Penn. St. 242; Stockton v. John-
son, 6 B. Monr. 409.
' Hopkinton v. Springfield, 12 N.
H. 328.
537
§ 1361.]
THE LAW OF EVIDENCE.
[book III.
judgments ;i to mortgages;^ and to other liens ;^ but not to
administration bonds.* Whether payment can be inferred,
within twenty years, is to be determined by all the evidence in
the case. It is so improbable that a creditor would permit an
unpaid bond to lie fruitless for eighteen or nineteen years, that
slight circumstances, in connection with such proof, will be suffi-
cient as a presumption of fact to justify a jury in a conclusion of
payment.^ It should be remembered that the period of twenty
years may be made to give way to a positive statute defining
limit.^
§ 1361. We must also observe that the presumption that a
Um from ^°^^ or specialty has been paid after a lapse of twenty
lapse of years, " is in its nature essentially different from the
time to be r^ . i i i ,
distin- bar imposed by the statute to the recovery of a simple
1 Kinsler v. Holmes, 2 S. C. 483. twenty years has intervened,' says
See, however, Daly v. Erricson, 45
N. Y. 786.
" Inches v. Leonard, 12 Mass. 379;
Earned v. Earned, 21 N. J. Eq. 245.
' Boyd V. Harris, 2 Md. Ch. 210;
Buchanan v. Rowland, 5 N.J. L. 721;
Doe V. Gildart, 6 Miss. 606 ; Drys-
dale's Appeal, 14 Penn. St. 531.
^ Potter V. Titcomb, 7 Greenl. 302.
* Denniston v. McKeen, 2 McLean,
253 ; Rodman v. Hoops, 1 Dall. 85 ;
Didlake v. Kobb, 1 Woods, 680 ; Hop-
kins V. Page, 2 Brock. 20; Inches u.
Leonard, 12 Mass. 379; Clark ». Hop-
kins, 7 Johns. R. 556; Gray v. Gray,
2 Lansing, 173; Brubaker v. Taylor,
76 Penn. St. 83 ; Usher w. Gaither, 2
Har. & M. 457; Carroll v. Eovin, 7
Gill, 34 ; Boyd u. Harris, 2 Md. Ch.
210; Millege v. Gardner, 33 Ga. 397;
Downs V. Scott, 3 La. An. 278 ; Lyon
V. Guild, 5 Heisk. 175.
° Grafton Bank v. Doe, 19 Vt. 463.
" A legaj presumption of payment
does not, indeed, arise short of twenty
years; yet it has been often held that
a less period, with persuasive circum-
stances tending to support it, may be
submitted to the jury as ground for a
presumption of fact. ' When less than
638
Chief Justice Gibson, ' no legal pre-
sumption arises, and the case, not
being within the rule, is determined
on all the circumstances; among which
the actual lapse of time, as it is of
a greater or less extent, will have a
greater or less operation.' Hender-
son V. Lewis, 9 S. & R. 384. In Ross
V. MeJunkin, 14 S. & R. 369, fourteen
years was treated as having this effect.
In Diamond v. Tobias, 2 Jones, 312,
a time short of twenty years was al-
lowed with circumstances, Mr. Justice
Coulter remarking: ' But exactly what
these circumstances maybe, never has
been and never will be defined by the
law. There must be some circum-
stances, and when there are any it is
safe to leave them to the jury.' In
Webb V. Dean, 9 Harris, 29, the pe-
riod fell short of sixteen years ; in
Hughes V. Hughes, 4 P. F. Smith,
240, of nineteen years." Sharswood,
J., Moore v. Smith, 2 Weekly Notes,
483. In this case where an affidavit
of defence set forth that there had
been a sheriff's sale of the defendant's
property, and distribution liy the sher-
iff, in which distribution plaintiffs had
participated, although the defendant
CHAP. XIV.J PRESUMPTIONS : PAYMENT. [§ 1362.
contract debt. The latter is a prohibition of the ac- gu'shed
tion ; the former, primd facie, obliterates the debt, by Hmita-
The bar (of the statute) is substantially removed by-
nothing less than a promise to pay, or an acknowledgment con-
sistent with such a promise. The presumption is rebutted, or,
to speak more accurately, does not arise, when there is affirma-
tive proof, beyond that furnished by the specialty itself, that the
debt has not been paid, or where there are circumstances that
suificiently account for the delay of the creditor The stat-
ute of limitations is a bar, whether the debt is paid or not. Not
so where the suit is brought on a sealed instrument. The fact
of indebtedness is then in controversy, and the legal presump-
tion of payment from lapse of time is nothing more than a trans-
fer of the onus of proof from the debtor to the creditor. Within
twenty years the law presumes the debt to have remained un-
paid, and throws the burden of proving payment upon the
debtor. After twenty years the creditor is bound to show, by
something more than his bond, that the debt has not been paid,
and this he may do, because the presumption raises only a primd
facie case against him." ^
§ 1362. Payment, as has been already incidentally noticed,
may be of course circumstantially shown.^ Among in- pajnnent
ferences which have been allowed weight in this con- f^r^d from
nection, even after the lapse of comparatively short '*'''^-
periods, are, the payment of intermediate debts ; as where trades-
men's bills, or tax bills, or claims for interest, or rent, of later
date, are proved to have been paid,^ and the possession of the
was not able to specify with certainty 28 Wise. 319; Wliisler v. Drake, 35
what amount plaintiffs had received, Iowa, 103; Garnier u. Renner, 51 Ind.
because he had not been able to inspect 372.
the docket of the sherifE who made the " 1 Gilb. Ev. 309; Colsell v. Budd,
sale and distribution; it was held that, 1 Camp. 27; Hodgdon u. Wight, 36
in connection with the lapse of time Me. 326 ; Brewer v. Knapp, 1 Pick,
which had passed, there was" enough 337; Attleboro ». Middleboro, 10 Pick,
to send the case to a jury. 378 ; Bobbins v. Townsend, 20 Pick.
' Strong, J., in Reed v. Reed, 46 345; Crompton v. Pratt, 105 Mass.
Penn. St. 242. See Connelly v. Mc- 255; Decker v. Livingston, 15 Johns.
Kean, 64 Penn. St. 113; Birkey v. B. 479. See Walton v. Eldridge, 1
McMakin, 64 Penn. St. 343. Allen, 203, as showing rebuttability of
^ See Connecticut Trust Co. v. Me- such presumptions,
■lendy, 119 Mass. 449; Doty v. Janes,
539
1362.]
THE LAW OF EVIDENCE.
[book III.
document by which the debt is expressed.^ It has been doubted
whether the presumption arising from possession of the docu-
ment applies to bills produced by acceptors without proof that
they have been in circulation ; 2 but the better view is that such
proof is not necessary to give a primd facie case to the acceptor
producing the bill.^ Possession of a note by the maker, how-
ever, when the maker has access to the papers of the payee, is
not h J itseli primd facie proof of payment.*
1 Gibbon v. Featherston, 1 Stark.
R. 225 ; Shepherd v. Currie, 1 Stark.
R. 454 ; Brambridge v. Osborne, 1
Stark. R. 454; Egg v. Barnett, 3
Esp. 196; Mills v. Hyde, 19 Vt. 59;
Garlock v. Geortner, 7 Wend. 198;
Alvord V. Baker, 9 Wend. 323 ; Weid-
ner h. Schweigart, 9 S. & R. 385 ;
Zeigler v. Gray, 12 S. & R. 42; Rubey
0. Culbertson, 35 Iowa, 264 ; Somer-
vail V. Gillies, 31 Wise. 152; Penn v.
Edwards, 50 Ala. 63 ; Lane v. Farm-
er, 13 Ark. 63; Union Canal Co. v.
Loyd, 4 Watts & S. 393 ; Carroll v.
Bowie, 7 Gill, 34; Ross v. Darby, 4
Munf. (Va.) 428. See Page v. Page,
15 Pick. 368 ; and see supra, §§ 1125,
1336.
^ Pfiel V. Vanbatenberg, 2 Camp.
439 ; 2 Greenl. on Ev. § 439.
8 Connelly v. McKean, 64 Penn. St.
118. In this case it was said by Shars-
wood, J. : " It was expressly held by
Lord Kenyon, in Egg v. Barnett, 3
Esp. Rep. 196, that to prove payment
of a debt due by the defendant to the
plaintiff, a check on a banker to his
favor and indorsed by him, was evi-
dence to go to the jury of payment.
Lord Kenyon said : ' This is not merely
using the name in the body of the
draft, which is arbitrary and would of
itself be certainly no evidence, but
here the money has been actually re-
ceived by the plaintiff and his servant,
for their names are put on the backs
of the cheeks as receiving the money.
This is evidence to go to the jury.'
540
See Gibbon v. Featherstonhaugh, 1
Starkie, 225; Brembridge v. Osborne,
Ibid. 374; Shepherd v. Currie, Ibid.
454; Patton v. Ash, 7 S. & R. 116;
Weidner v. Schweigart, 9 Ibid. 3S5;
Garlock v. Geortner, 7 Wend. 198;
Alvord V. Baker, 9 Wend. 323; HiU
V. Gayle, 1 Alabama, 275."
* Grey v. Grey, 47 N. Y. 552. The
point is thus argued by Peckham, J. :
" The question is then simply. Is the
production of this note by the defend-
ant, under the facts of this case, evi-
dence of its discharge, when it is
proved not to have been paid or satis-
fied ? I think it is not. We have
been referred by the defendant's coun-
sel to 1 Pothier on Obligations, 573,
as precisely in point. He says that
Boiseau holds that possession of the
note affords a presumption of its pay-
ment, but if he alleges a release he
must prove it ; for a release is a do-
nation, and a donation ought not to be
presumed. Pothier differs, and thinks
it should be presumed, unless the cred-
itor shows the contrary. But Pothier
agrees with Boiseau, ' that if the debtor
were the general agent or clerk of the
creditor, having access to his papers,
possession alone might not be a suffi-
cient presumption of payment or re-
lease ; so if he was a neighbor, into
whose house the effects of the creditor
had been removed on account of a
fire.' This latter proposition seems
applicable to this case. Here the case
shows without contradiction that the.
CHAP. XIV.]
PRESUMPTIONS: PAYMENT.
[§ 1363.
§ 1363. Payment, also, pro tanto, may be inferred from the
fact that money or securities were paid by the debtor to the cred-
itor.^ Such presumption may be rebutted by proof that the
payment was on other accounts.^ The prevalent opinion, how-
ever, is, that the mere acceptance of negotiable paper by a cred-
itor from a debtor, unless under circumstances affording a pre-
sumption that payment was meant, does not itself extinguish an
antecedent debt.^ A presumption of payment has been made
defendant, living at home with his
father, had a key that fitted his fa-
ther's desk, where this note was kept.
See, to the same effect, Kenney v.
Pub. Ad. 2 Brad. 319. The two cases
cited by the defendant's counsel, of
Beach v. Endress, 51 Ibid. 470, and
Edwards v. Campbell, 23 Barb. 423,
were both cases of instruments deliv-
ered up as having been paid and to
be cancelled. The circumstances of
the surrender in each case were proved.
In the latter case the sun-ender of the
note was made by the payee, eight
days before her death, to a third per-
son, to be delivered to the maker, say-
ing, ' he had boarded him, &c., and
he ought to have it, for it would not
be more than right for him to have
it.' Though the plaintiff had posses-
sion of the note at the trial, the su-
preme court held he was not entitled
to recover, and reversed the judgment
he had obtained." Peckham, J., Grey
V. Grey, 47 N. Y. 554. See Bowman
V. Teall, 23 Wend. 306; Allaire v.
Whitney, 1 Hill, 484; Waydell v.
Luer, 5 Hill, 448; S. C. 3 Den. 410;
Hill V. Beebe, 13 N. Y. 556 ; Nesbitt
V. Lockman, 34 N. Y. 169; Bedell v.
Carll, 33 N. Y. 581.
The possession of a lease by the
lessor with the seals cut off is no evi-
dence of a surrender by written in-
strument according to the statute of
frauds. Doe v. Thomas, 9 B. & C.
288.
1 Welch V. Seaborn, 1 Stark. R.
474; Aubert v. Walsh, 4 Taunt. 293;
Boswell V. Smith, 6 C. & P. 60; Gra-
ham V. Cox, 2 C. & Kir. 702; Mount-
ford V. Harper, 16 M. & W. 825;
Kisher v. The Frolic, 1 Woods, 92;
First Nat. Bank v. Leach, 52 N. Y.
350; Patton v. Ash, 7 Serg. & R. 116;
First Nat. Bank v. McManigle, 69
Penn. St. 156; Shinkle v. Bank, 22
Ohio St. 516; Pope v. Dodson, 58
111. 361 ; Fuller v. Smith, 5 Jones
(N. C.) Eq. 192 ; Carson v. Linebur-
ger, 70 N. C. 173; Robinson v. Alli-
son, 36 Ala. 525; Vimont v. Welch,
2 A. K. Marsh. 110; Wood v. Hardy,
11 La. An. 760. See Rockwell v.
Taylor, 41 Conn. 55 ; Swain v, Et-
tling, 32 Penn. St. 486.
2 Haines v. Pearce, 41 Md. 221 ;
Mechanics v. Wright, 53 Mo. 153.
See Waite v. Vose, 62 Me. 184.
= Ward V. Evans, Ld. Raym. 938 ;
Mussen v. Price, 4 East, 197 ; Peter
V. Beverly, 10 Pet. 532 ; Wallace v.
Agry, 4 Mason, 336; Ward v. Howe,
38 N. H. 35 ; Vail v. Foster, 4 Comst.
312; Jewett v. Plack, 43 Ind. 368 ;
Matteson v. Ellsworth, 33 Wise. 488 ;
Lawhorn v. Carter, 11 Bush, 7; May
V. Gamble, 14 Fla. 467.
In Maine, Vermont, and Massachu-
setts, however, the tendency is to hold
that the acceptance of a negotiable
note or bill of exchange, by the cred-
itor for a preexisting debt, is a pay-
ment of such debt, unless a contrary
intention is shown. " The reason as-
signed for this presumption of fact is,
541
§ 1364.J
THE LAW OF EVIDENCE.
[book III.
from the drawing of lines across the instrument proving indebt-
edness ;i from an entry of credit on such instrument ; ^ from an
intermediate settlement of accounts ; ^ and from a remittance-by
mail when such mode of payment is authorized by the creditor,
though not otherwise.'* So payment of a debt, after the death
of the parties, may be presumed from the fact that at the time
of maturity the debtor was in opulent, and the creditor in needy
circumstances.^ . -
Presump- § 1364. On the other hand, in order to rebut the pre-
ment on?y ' sumption of payment, it is admissible for the creditor to
primdfade prove the debtor's poverty ; ® circumstances making it
and may be '^ . , . . , . , ,
rebutted. inconvenient to the parties to pay or receive the debt,'
that a creditor may indorse such pa-
per, and, if he could compel payment
of the original debt, the debtor might
be afterwards obliged to pay the note
to the indorsee, and thus be twice
charged, without any remedy at law."
Dickerson, J., Strang v. Hirst, 61 Me.
14, citing Perrin o. Keen, 19 Me. 355;
Paine v. Dwinel, 53 Me. 53; Thatcher
V. Dinsmore, 5 Mass. 299 ; Pomeroy
V. Rice, 16 Pick. 22 ; Milledge v. Iron
Co. 5 Cush. 168; Varner v. Noble-
boro, 2 Greenl. 121 ; Wemet v. Lime
Co. 46 Vt. 458. See Perkins v. Cady,
111 Mass. 318.
' ' The courts in these states also
hold that the presumption of payment
is rebutted, and the creditor may re-
pudiate the security taken and rely
upon the original contract, when there
is any fraud in giving it, or it is ac-
cepted under an ignorance of the
facts, or a misapprehension of the
rights of the parties. French v. Price,
24 Pick. 21 ; Paine v. Dwinel, 53 Me.
53." See, to same point, Wemet v.
Lime Co. 46 Vt. 458.
" Where a creditor accepts a note
or hill of exchange for a debt, there
is a presumption of fact that there is
an agreement between the drawer and
the drawee that it will be accepted.
The parties are presumed to act in
542
good faith toward each other, and
the tendering of such paper, without
such understanding, is a -breach of
good faith. This may be done to ob-
tain delay, or to deceive the creditor,
by the delusive hope that in accepting
the paper offered he gets additional
security for his debt. Besides, the
giving of such paper may have influ-
enced the creditor to part with his
property.'' Dickerson, J., Strang v.
Hirst, 61 Me. 14. See De Forest v.
Bloomingdale, 5 Denio, 304.
' Pitcher v. Patrick, 1 Stew. & P.
478.
2 Graves v. Moore, 7 T. B. Mon.
341. See supra, §§ 229, 1115.
^ Hedrick v. Bannister, 12 La. An.
373.
* See Boyd u. Reed, 6 Heisk. 63.
See supra, § 1323.
* Levers v. Van Buskirk, 4 Barr,
309; Henderson o. Lewis, 9 S. & R.
879; Lesley v. Nones, 7 S. & R. 410;
Diamond v. Tobias, 12 Penn. St.
312; Conelly v. McKean, 64 Penn.
St. 113 ; Ross V. Darley, 4 Munf. 428.
^ Farmers' Bk. v. Leonard, 4 Harr.
(Del.) 536.
' McLellan v. Croflon, 6 Greenl.
307; Crooker i'. Crooker, 49 Me. 416;
Eustace v. Goskins, 1 Wash. (Va.)
188.
CHAP. XIV.]
PEESDMPTIONS : PAYMENT.
[§ 1365.
any intermediate recognition by the debtor ; ^ and mistake in the
acceptance of a security.^
§ 1365. Receipts, if for the same debt, or in full of all de-
mands, are primd facie evidence of payment ; ^ though Eecejptg
whether they are for the same debt, when they are on P^°°^ "^
... . payment,
their face indefinite, is to be determined from all the but may be
evidence in the case.* That a receipt may be rebutted
by proof of fraud, or mistake, or of an understanding between
the parties that it should be provisional, is now settled.''
1 Delaney v. Kobinson, 2 Whart.
R. 503; Eby v. Eby, 5 Penn. St. 435 ;
Reed v. Eeed, 46 Penn. St. 242.
2 Wemet v. Lime Co. 46 Vt. 458.
See cases cited supra, § 1363.
» Supra, §§ 1064, 1130; Rollins v.
Dyer, 16 Me. 475; Obart v. Letson,
17 N. J. L. 78 ; Marston v. Wilcox, 2
111. 270; Underwood v. Hoosack, 38
111. 208 ; Prov. Ins. Co. v. Fennell, 49
111. 180.
* Reed v. Phillips, 5 111. 39 ; Dan-
iels V. Burso, 40 111. 307; Greenlee v.
McDowell, 3 Jones (N. C.) L. 325 ;
Wooten V. Nail, 18 Ga. 609; Hol-
lingsworth v. Martin, 23 Ala. 591.
5 Skaife v. Jackson, 3 B. & C. 421 ;
Graves v. Key, 3 B. & Ad. 313 ; Bowes
V. Foster, 2 H. & N. 779; Farrar v.
Hutchinson, 9 Ad. & E. 641 ; Rollins
V. Dyer, 16 Me. 475 ; Pitt v. Berkshire
Ins. Co. 100 Mass. 500 ; Sheldon u.
Ins. Co. 26 N. Y. 460 ; Baker v. Ins.
Co. 43 N. Y. 283 ; Penns. Ins. Co. v.
Smith, 3 Whart. R. 520 ; Byrne «.
Schwing, 6 B. Mon. 199. See more
fully supra, §§ 1064, 1130.
548
INDEX.
[the figures refer to the sections.]
ABATEMENT, effect of plea in, as an admission (see Admissions), 1111.
ABROAD, when witness is, his former testimony admissible, 178.
ABSENCE, presumption of death from, 1274-8.
of attesting witness, when it lets in proof of his signature, 726-730.
ABSTRACTS of unproducible documents, when admissible, 80, 134.
may be received to refresh memory, 134, 516.
ACCEPTANCE of bill (see Negotiable Paper).
in blank, effect of, 1059.
of goods, what sufficient to satisfy statute of frauds, 875.
ACCEPTOR (see Negotiable Paper).
ACCESS, of husband and wife, when presumed, 1298.
husband or wife not admissibly to disprove, 608.
ACCOMPLICE, evidence required to corroborate, 414.
ACCOUNT BOOKS, when balance of may be proved by experts, 134.
of shopmen and tradesmen admissible for themselves (see Shop-books),
678, 685.
may be received as against parties having common access thereto, 1131,
1133.
business entries in; by deceased persons, when evidence (see Business
Entries), 238.
entries in, by agents, &c., when evidence as against interest (see Agent),
226.
ACCOUNT STATED, effect of, as an admission (see Admissions), 1133.
silence in reception of, no admission, 1140.
effect of not objecting to, as an admission, 1140.
one part of an account cannot be put in evidence without the rest, 620,'
1134.
ACKNOWLEDGMENT of will by testator, what sufficient, 885.
of deeds, how proved, 1052.
■when disputable by parol, 1052.
by family, when evidence in pedigree cases (see Pedigree), 207-219.
against interest (see Admissions).
VOL. II. 35 545
INDEX.
ACQUIESCENCE in claim, when presumption of title, 1331-1338.
when evidence as an admission (see Admissions'), 1136, 1150.
ACTING IN OFFICE, when admission of an appointment, 1153.
appointment to office, when presumed from, 1315, 1319.
ACTION, CIVIL, question subjecting witnessto, he is bound to answer,
637.
judgment in a criminal prosecution, no evidence in a, 776.
unless upon a plea of guilty, 776, 837.
judgment in no evidence in a prosecution, 776.
ACTOR, burden of proof is on (see Burden of Proof), 354.
ACTS may be res inter alios acta, 173.
imply admissions (see Admissions), 1081.
ACTS OF STATE, how proved, 317-324.
of foreign governments, 300, 323.
ADDRESS on letter, what sufficient to raise inference of delivery by post,
1323-1327.
ADEMPTION OF LEGACY may be proved by parol, 1007.
may be rebutted by parol, or by declarations of intention, 973, 974.
ADJOINING LANDS OR HOUSES, when entitled to mutual support,
1340.
ADMINISTRATION, letters of, not conclusive proof of death, or other
recitals, 810, 1278.
must be proved by record, 65, 67.
ADMINISTRATOR, title of, proved by record, 65.
promise by, to pay out of own estate, must beby in writing, 830, 878.
judgment against intestate, binding upon, 769 et seq.
admissions of intestate, evidence against, 1158.
declarations by executor not admissible against special, 1158, 1199 a.
inventory exhibited by, evidence of assets, 1121.
ADMIRALTY COURT, seal of judicially noticed, 320.
to prove sentence of, what must be put in, 824-830.
ADMIRALTY JUDGMENTS, good against all the world, 814.
ADMIRALTY PROCEEDINGS must be proved by record, 63.
ADMISSIONS,
General Rules :
admissions not to be considered as strictly evidence, 1075.
must relate to existing conditions, 1076.
non-contractual admissions do not conclude, 1077.
but are dependent on circumstances for credit, 1078.
intent necessary to give weight to, 1079.
credibility a question of fact, 1080.
admissions may be by acts, 1081.
admission of a right distinguishable from admission of a fact, 1082.
contractual admission to be distinguished from non-contractual, 1083.
contractual admissions may estop, 1085.
estoppels may be substitutes for proof, 1086.
546
INDEX.
ADMISSIONS — (continued).
even a false statement may estop, 1087.
otherwise as to non-contractual admissions, 1088.
such admissions must be specific to have weight, 1089.
admissions, when made for the purpose of compromise, inadmissible,
1090.
admissions may prove contents of writings, 1091.
limitations of this rule, 1093.
not excluded because party could be examined, 1094.
may prove execution of documents, 1091.
unless when there are attesting witnesses, 1095.
may prove marriage, 1096.
domicil, 1097.
but not record facts, 1098.
invalidated by duress, 1099.
cannot be received when self-serving, 1100.
except when part of the res gestae, or when stating symp-
toms, 1102.
whole context of a written admission must be proved, 1103.
not always so as to-answers in equity under oath, 1104.
otherwise at common law, 1105.
practice as to exhibits, 1106.
whole of applicatory legal procedure usually goes in, 1107.
so of whole relevant part of a conversation, 1108.
testimony reproduced from a former trial, 1109.
Admissions in Judicial Pkocebdings.
direct admission by plea is conclusive, 1110.
so of pleas in abatement, 1111.
record may be received when involving admission of party against whom
it is offered, 836.
a party may be bound by his admissions of record, 837.
pleadings may be received as admissions, 838.
but not as evidence as to third parties, 839.
a demurrer may be an admission, 840.
in pleading, what is not denied is admitted, 1112.
so in suits brought on former judgment, 1113.
payment of money into court admits debt pro tanto, 1114.
pleadings may be admissions, 1116.
but are rebuttable, 1117.
so of process, 1118.
affidavits and bill and answers in chancery may be • put in evidence
against party making them, 1119.
party's testimony in another case may be used against him, 1120.
inventory an admission by executor, 1121.
Documentary Admissions.
written admissions entitled to peculiar weight, 1122.
547
INDEX.
ADMISSIONS — (con/inMed)-
instruments may bean admission, though undelivered, 1123.
invalid instrument may be used as an admission, 1124.
notes and acknowledgments are evidence of indebtedness, 1125.
so are indorsements on negotiable paper, 1126.
so may be letters, 1127.
and telegrams, 1128.
and memoranda, 1129.
receipts are rebuttable admissions, 1130.
corporation and club books may be used as admissions, 1131.
so may partnership books, 1132.
so may accounts stated, 1133.
■whole account may go in, 1134.
so may indorsements of interest against the party making them; but
not to suspend statute of limitations, 1135.
Admissions by Silence or Conduct.
silence of a party during another's statements may imply admission,
1136.
so as to party acquiescing in testimony of witness, 1139.
otherwise as to silence on reception of accounts, 1140.
so of invoices, 1141.
:silent admissions may estop, 1142.
extension of estoppels of this class, 1143.
so as to third parties, 1144.
party selling cannot set up invalidity of sale, 1147.
■owner of land bound by tacit representations, 1148.
subordinate cannot dispute superior's title, 1149.
-other party's action must be influenced, and the misleading conduct must
be culpable, 1150.
assumed character cannot afterwards be repudiated, 1151.
but silence, on being told of an unauthorized act, does not estop, 1152.
admitting official character of a person is a prima facie admission of his
title, 1153.
letters in possession of a party not ordinarily admissible against him, 1154.
admissions made, either without the intention of being acted on, or with-
out being acted on, do not estop, nor can third parties use estoppel,
1155.
Admissions by Predecessor in Title.
self-disserving admissions of predecessor in title may be received against
successor, 1156.
burdens and limitations descend with estate, 1157.
executors are so bound by their decedent, 1158.
landlord's admissions receivable against tenant, 1159.
tenancy and other burdens may be so proved, 1160.
but admissions of party holding a subordinate title do not aff'ect principal,
1161.
548
INDEX.
ADMISSIO'SS— (continued).
judgment debtor's admissions admissible against successor, 1162.
vendee or assignee of chattel bound by vendor's or assignor's admissions,
1163.
indorser's declarations inadmissible against an indorsee, 1163 a.
in suits against strangers, declarant, if living, must be produced, 1163 6.
bankrupt assignee bound by bankrupt's admissions, 1164.
admissions of predecessor in title cannot be received if made after title is
parted with, 1165.
exception in case of concurrence or fraud, 1166.
declarations of fraud cannot infect innocent vendee, 1167.
self-serving admissions of predecessor in title inadmissible, 1168.
declarations must be against declarant's particular interest, 1169.
Admissions of Agent, and Attoeney, and Keperee.
agent employed to make contract binds his principal by his representa-
tions, 1170.
and this though the representations were unauthorized, 1171.
applicant for insurance may contradict written statement made by agent,
1172.
admissions of agent receivable when part of the res gestae, 1173.
so in torts, 1 1 74.
authority to make non-contractual admissions must be express, 1175.
so as to torts, 1176.
general agent may admit facts non-contractually, 1177.
non-contractual admissions are open to correction, 1179.
after business is closed, agent's power of representation ceases, 1180.
servant's admissions are subject to the same restrictions, 1181.
agency must be so established aliunde, 1183.
attorney's admissions bind client, 1184.
attorney's admissions may be used by strangers, 1185.
implied admissions of counsel bind in particular case, 1186.
attorney's authority must be proved aliunde, 1187.
so of admissions of attorney's clerk, 1188.
attorney's admissions maybe recalled before judgment, 1189.
admissions of referee bind principal, 1190.
Admissions by Paktneks and Persons jointly interested.
persons jointly interested may bind each other by admissions, 1192.
so of partners, 1194.
as to acknowledgment to take debt out of statute, 1195.
such power ceases at dissolution of connection, 1196.
so as to joint contractors, 1197.
persons interested, but not parties, may affect suit by admissions, 1198.
but mere community of interest does not create such liability, 1199. "
executors against executors, indorsers against indorsees, 1199 a.
declarations of declarant, cannot establish against others his interest with
them, 1200.
649
INDEX.
ADMISSIONS— (continued).
authority terminates with relationship, 1201.
admissions in fraud of associates may be rebutted, 1202.
self-serving statements of associates inadmissible, 1203.
in torts, co-defendant's admissions not to be received against the others,
unless concert is proved, 1204.
but where conspiracy is proved admissions of co-conspirators are receiv-
able, 1205.
Admissions by Keprksentative and Principal.
admissions of nominal party cannot prejudice real party, 1207.
guardian's admissions not receivable against ward, 1208.
public officer's admissions may bind constituent, 1209.
representative's admissions inoperative before he is clothed with repre-
sentative authority, 1210.
and so after he leaves office, 1211.
principal's admissions receivable against surety, 1212.
cestui que trust's admissions bind trustee, 1213.
Admissions of Husband and Wife.
husband's declarations may be received against wife, 1214.
wife's admissions may be received when she is entitled to act juridically,
1216.
her admissions may bind her husband, 1217.
may bind her trustees, 1218.
may bind her representatives, 1219.
admissions of adultery closely scrutinized, 1220.
admissions by receipts (see Receipts').
ADULTERY, admission by defendant of marriage not conclusive, 225.
character of wife. admissible in respect to damages, 51.
of plaintiff admissible for same purpose, 50, 51.
evidence of conduct of husband and wife admissible, 34, 509.
in suits based on marriage must be strictly proved, 225, 1297.
letters from husband or wife to each other, or to strangers, admissible,
978. See 263, 269.
but date of letters must be proved, 978.
in proceedings for, confessions to be watched, 1220. See 433, 1078.
parties are competent witnesses, 431, 433.
but not bound to answer questions respecting adultery, 425, 433.
wife living openly in, will not rebut presumption of legitimacy, 1298.
relations of husband and wife may be proved in suits for, 225.
marriage in suit for must be strictly proved, 85.
ADVERSE ENJOYMENT, after what time gives title (see Title), 1331-
1840.
ADVERSE WITNESS (see Witness).
ADVERTISEMENT, in newspapers, when proof of notice, 671-675.
ADVOCATE (see Attorney).
AFFIDAVIT, to obtain attachment of witnesses, 883.
550
inde;x.
AFFIDAVIT — (continued).
and bill and answers in chancery may be put in evidence against
party making them, 1119. See 1099, 1116.
if used as an admission, whole must be read, 1107-1109.
AFFILIATION, in case of, mother must be corroborated, 414.
AFFIKMATION, when allowed instead of oath, 388.
effect of on memory, 410.
AFFIRMATIVE, burden on "(see Burden of Proof), 353.
AFFIRMATIVE TESTIMONY stronger than negative, 415.
AGE (see Infant), proof of, 208, 653-655.
of absent person, may be presumption of death, 1274.
AGENT. Presumption of continuance of agency, 284.
employed to make contract binds his principal by his representations,
1170.
and this though the representations were unauthorized, 1171.
applicant for insurance may contradict written statement made by agent,
1172.
admissions of agent receivable when' part of the res gestae, 1173.
so in torts, 1174.
authority to make non-contractual admissions must be express, 1175.
so as to torts, 1176.
general agent may admit facts non-contractually, 1177.
non-contractual admissions are open to correction, 1179.
after business is closed, agent's power of representation ceases, 1180.
servant's admissions are subject to the same restrictions, 1181.
agency must be established aliunde, 1183.
character of, admissible in issue of culpa in eligendo, 48, 56.
when parol proof is admissible to prove principal's liability, 949-951,
1066.
what documents he cannot sign for principal, 702.
what documents he may sign, if appointed by parol, 702, 867.
one party to a contract cannot sign for the other party as his agent, 869.
entries against interest by deceased, admissible, 226-237.
warrants that he is authorized to bind principal, by contracting for him,
1087, 1151.
when estopped from denying title of principal, 1085, 1149.
judgment against principal for alleged misconduct of, oo evidence against
agent of his misconduct, 823.
but evidence of amount of damages awarded against principal, 823.
when wife regarded as husband's agent, 1217, 1257.
principal cannot repudiate him as to third parties, 1151, 1171. '
admitting official character of, admits title, 1153, 1315.
AGGRAVATION, of damages, when character admissible in, 50-54.
AGREEMENT (see Contract.)
AGREEMENTS IN FUTURO. Agreements, not to be performed within a
year, must be in writing, 883.
651
INDEX.
ALCADE'S BOOKS, when admissible, 640, 641, 645.
ALLUVION, presumption as to, 1342.
ALMANAC, judge may refresh his memory by, 282.
ALTERATION, in document, 621.
by Roman law presumption is against corrections and interlineations, 621.
by our own law, material alterations avoid dispositive instrument, 622.
not so immaterial alteration, 623.
nor alteration by consent, 624.
nor alteration during negotiation, 625.
as to negotiable paper, alteration avoids, 626.
alteration by stranger does not avoid instrument as to innocent and non-
negligent holder, 627.
in writings inter vivos presumption is that alteration was made before ex-
ecution, 629.
otherwise as to wills, 630.
as to ancient documents, burden of explanation is not imposed, 631.
blank in document may be filled up, 632.
presumption against, when amounting to spoliation, 1264.
of written agreements by oral ones, effect of (see Parol Modification of
Document), 920, 1070.
AMBIGUITIES, distinction between latent and patent, 956, 957.
as to extrinsic objects may be so explained (see Parol Evidence), 937-
956.
explained in wills by declarations of intention when (see Parol Evi-
dence), 992-1006.
arising from imperfect signs, 718, 722, 972.
ANALOGY is the true logical process in juridical proof, 6.
ANCESTOR, when admissions of admissible against heir, 1156-1167.
estoppels by, binding on heir, 1085, 1162.
declarations of, admissions in pedigree, 202-220.
judgment, for or against, binding on heir, 769.
ANCIENT POSSESSION, what hearsay admissible in support of, 185-200.
ancient documents for such purposes, admissible, 194.
must come from proper custody, 194, 195.
who is the proper custodian, 197-199.
need not have been acted upon, 199.
presumptions from, 1331-1338.
ANCIENT WRITINGS, presumptions in favor of, 194-197, 703, 1313.
thirty years old, require no proof, 703-732, 1359.
attesting witnesses need not be called, 732.
ma^ be interpreted by parol and by experts, 718, 722, 972.
by acts of author, 941, 988.
and by contemporaneous usage, 954-965.
handwriting of, how proved in, 718, 1359.
though mutilated, admissible, if coming from proper custody, 708, 704.
date of, may be proved by experts, 704, 718, 722, 972
552
INDEX.
ANIMAL HABITS, constancy of presumed, 1295.
ANIMUS (see Intention).
ANNEXING INCIDENTS, by usage (see Parol Evidence), 969, 970.
ANSWER (see Answer in Equity).
to inquiries when admissible in cases of search, for writings, 147-150,
178.
for witnesses, 383, 726 et seq.
when admissible through hearsay, 178, 254.
of witness (see Witnesses).
ANSWER IN EQUITY, admissible against party making it, 828 a, 1099,
1116, 1119.
whether as an admission, whole must be read at law, 1104.
admissibility and effect of, as evidence against party, 1119.
to a bill of discovery, practice as to, 490.
ANTE LITEM MOTAM (see Lis Mota).
ANTIQUARY, may give opinion as to date of ancient writing, 718, 719.
APPOINTMENT to office, presumption of, from acting, 1153, 1315.
need not in general be produced, although in
writing, 177, 1315.
ARBITRATION (see Award).
ARBITRATOR not bound to disclose grounds of award, 599.
may be asked questions to show want of jurisdiction, 599.
award of, as conclusive as a judgment, 800.
ARMORIAL BEARINGS, admissible in cases of pedigree, 221.
ARMY REGISTERS, when admissible, 638.
ARREST, witnesses, when protected from, 388.
how far witness may waive protection, 390.
ART, terms of, when judicially noticed, 335.
ARTICLES OF WAR, judicially noticed, 297.
ARTIST, may be examined as expert, 443.
ASSETS, when admitted by inventory, 1121.
ASSIGNEE, admissions made by assignor, when evidence against, 1156-
1163, 1164.
admissions inadmissible if made after assignment 1165.
ASSIGNMENTS, by operation of law under statute of frauds, 858.
ASSOCIATES, reciprocal admissions of (see Admissions), 1194-1205.
ASSUMPSIT, impUed consideration will support, 1321, 1322.
judgment in trespass or trover, when a bar to action of, 779.
on foreign judgment, when maintainable, 805.
ASSUMPTION of character, when estopping, 1081 et seq.
ATHEISTS, at common law not competent witnesses (see Witnesses),
395.
ATTACHMENT, witness disobeying subpoena liable to (see Witnesses),
383.
80 on refusing to answer, 494.
ATTENDANCE OF WITNESSES, how enforced (see Witnesses).
653
INDEX.
ATTENDANCE OF WITNESSES — (con/muerf).
refusal to obey subpoena renders witness liable to attachment, 383.
witness in custody may be brought out by habeas corpus, when, 384.
ATTESTATION CLAUSE, when due execution of deed presumed from
proper, 1313.
when due execution of will presumed from proper (see Wills), 889 et seq.
ATTESTING WITNESS.
requisites of in respect to wills, 886-888.
as to all documents, when there are such, they must be called, 723.
collateral matters do not require attesting witness, 724.
when attestation is essential, admission by party is insufficient, 725.
absolute incapacity of attesting witness a ground for non-production, 726.
secondary evidence in such case is proof of handwriting, 727.
such evidence not admissible on proof only of sickness of witness, 728.
only one attesting witness need be called, 729.
witness may be contradicted by party calling him, 730.
but not by proving his own declarations, 731.
how may be cross-examined, 530.
attesting witness need not be called to document thirty years old, 732.
accompanying possession need not be proved, 733.
attesting witness need not be called when adverse party produces deed
under notice, and claims therein an interest, 736.
where a document is in the hands of adverse party who refuses to produce,
then party oiFering need not call attesting witness, 737.
nor need such witness be called to lost documents, 738.
sufficient if attesting witness can prove his own handwriting, 739.
must he prima facie identification of party, 739 a.
when statutes make acknowledged instrument evidence, it is not necessary
to call attesting witness, 740.
ATTORNEY (see Privileged Communication).
not permitted to disclose communications of client, 576.
not necessary that relationship should be formally instituted, 578.
nor that communications should be made during litigation, 579.
nor is privilege lost by termination of relationship, 580.
privilege includes scrivener and conveyancer, as well as general counsel, 581 .
so as to attorney's representatives, 582.
client cannot be compelled to disclose communications made by him to his
attorney, 583.
privilege must be claimed in order to be applied, and may be waived, 584.
privilege applies to client's documents in attorney's hands, 585.
privilege lost as to instruments parted with by lawyer, 586.
communications to be privileged must be made to party's exclusive ad-
viser, 587.
attorney not privileged as to information received by him extra-profes-
sionally, 588.
information received out of scope of professional duty not privileged, 589.
554
INDEX.
ATTORNEY— (continued).
privilege does not extend to communications in view of breaking the
law, 590.
nor to testamentary communications, 591.
attorney making himself attesting witness loses privilege, 592.
business agents not lawyers are not privileged, 593.
attorney's admissions bind client, 1184.
attorney's admissions may be used by strangers, 1185.
implied admissions of counsel bind in particular case, 1186.
attorney's authority must be proved aliunde, 1187.
so of admissions of attorney's clerk, 1188.
attorney's admissions may be recalled before judgment, 1189.
ATTORNEY GENERAL, privileged as to state secrets, 603.
AUCTIONEER, agent for vendor and purchaser, 867.
when not bound by description in unsigned catalogue, 926.
AUTHORITY, burden of proving, in particular cases, 368.
of husband to and over wife, when presumed, 1256.
AUTREFOIS ACQUIT or CONVICT (see Judgments).
AWARDS, have the force of judgments, 800.
BAD CHARACTER (see Character).
BAIL, witnesses required to find, 385.
BAILEE, how far estopped from denying title of bailor, 1149.
burden of proof as to (see Burden of Proof), 363.
BAILMENT, burden of proof in, 363.
BANK BOOKS, inspection of, 746.
how proved, 80-82.
admissibility and weight of, 1131, 1140.
BANKERS, general lien of, judicially noticed, 291, 331.
when estopped from denying title of customers, 1149.
entries in books of, admissible, 1131-1140.
BANK MESSENGER deceased, business entries of, 250.
BANKRUPT, assignment of property of, by operation of law, 858-860.
when necessary to prove date of instrument signed by, 978.
admission by, before bankruptcy, evidence to charge estate, 1164.
but not so admissions by, after bankruptcy, 1164, 1165.
BANKRUPT assignments; how proved, 829.
BANKRUPTCY, how proved, 829.
effect of foreign judgment of, 818.
BANNER, inscription on, provable by oral testimony, 81.
BAPTISM, parish registers of, admissible to prove (see Registries), 653.
so of family records, 660.
admissibility and effect of registries of, 649-655.
may be proved by parol though registered, 77.
BARRISTER (see Attorney).
BASTARD, whether declarations of admissible in cases of pedigree, 202-216.
555
INDEX.
BASTARDY, mother must be corrobora,ted in cases of (see Legitimacy), 414.
when one witness sufficient in, 414.
how far parents can give evidence to bastardize their issue, 608.
admissibility of entries respecting, in baptismal register, 655.
BEGINNING AND REPLY (see Burden of Proof).
BEHAVIOR (see Conduct).
BELIEF, grounds of : veracity and competency of witness, 404.
freedom from bias, 408.
coincidences in testimony, 412.
circumstantiality, 411.
preponderance of numbers, 416.
credibility of, how far question for jury, 417.
religious, what necessary in witness (see Witness), 395, 396.
when witness can speak to, 396.
BELIEF OF WITNESS, when he may testify to, 509-514.
when expert, distinctive rules, 435-440.
BEQUEST (see Legacy).
BEST EVIDENCE (see Primary Evidence), 60, 163.
BIAS of witness, what are tests of (see Witness), 408, 566.
may be shown by examination, 562-566.
BIBLE, will be judicially noticed, 284.
entry in, admissible in cases of pedigree, 219, 660.
BIGAMY, on indictment for, strict proof of marriage necessary, 84, 1297.
BILL IN EQUITY, practice as to admissibility of, 1119.
to reform or rescind writings, when entertained, 905, 1019.
BILL OF DISCOVERY, 754.
BILL OF EXCEPTIONS and review proceedings admissible, 835.
BILL OF EXCHANGE (see Negotiable Paper), 1058-1062.
BILL OP LADING, is open to explanation, 1070, 1150.
usages affecting, judicially noticed, 331.
BILL OF SALE (see Contracts).
BILL TO PERPETUATE TESTIMONY, 181.
BIRTH, provable by declarations of deceased relatives, 208.
provable by parol, though registered, 77.
presumptions as to (see Legitimacy), 1298.
admissibility and effect of registries of, 649-660.
fact and time of, when questions of pedigree, and provable by hear-
say, 238.
time and place of, how far provable by register of baptism, 655.
entries of, in attendant's books, when evidence, 238.
BLANK, in will, cannot be explained by parol, 630, 632, 992-1002.
presumption as to time of filling up, 632-634.
in document, when may be filled up after execution of, 632.
BLIND, witness, how far competent, 401.
man, cannot attest a will, 886.
may acknowledge his own will, 886, 887.
556
INDEX.
BONA FIDES (see Good Faith).
collateral facts, when admissible in proof of, 35.
BOND, consideration for, presumed, 1045.
may be shown to be conditioned on contingencies, 1067.
admission by one obligor, evidence against co-obligor, 1192-1199.
indorsements of payment on, efi'ect of as to statute, 1135.
BOOKS, when expert may refresh memory by, 308, 438, 666.
shop, entries in, by shopman, when evidence, 678-693.
what are admissible as official documents, 287 el seq.
what may be consulted by judges, 282 et seq.
Books op History and Science.
approved books of history and geography by deceased authors receiv-
able, 664.
books of inductive science not usually admissible, 665.
otherwise as to books of exact science, 667.
inspection of (see Inspection by Order of Court), 742, 756.
of corporation (see Corporation Books), 661-663, 1131.
of third persons, when and why admissible (see Hearsay).
BOOKS OF ACCOUNT (see Account Books, 134, 678-685, 1131).
of partnership and clubs, when admissible, 1131, 1132.
BOTANISTS admissible as experts, 443.
BOUGHT AND SOLD NOTES, constitute the contract made through
broker, 75, 968.
to prove contract, party only bound to produce note in his possession,
76.
BOUNDARY, of counties, &c., how far judicially noticed, 340.
presumptions as to (see Presumptions), 1339-1343.
when provable by reputation, 185-191.
by verdicts or judgments inter alios, 200, 794, 831.
by showing boundaries of other places in same system, 38, 44.
by maps, 668.
declarations of predecessors in title, 1156.
not provable by hearsay as to particular facts, 186.
of private estates not usually provable by reputation, 187, 188.
distinctive view in the United States, 189.
BREACH OF PROMISE, in action for, of marriage, plaintiff's character
how far admissible, 52.
parties to record admissible witnesses, 32.
BROKER, agent of both buyer and seller, 75, 968, 969.
contract made by, provable by bought and sold notes, 75, 968, 969.
admissible as expert, 446, 499.
customary incidents attachable to contracts of, 969.
to prove contract, party only bound to produce note in his possession, 75.
BURDEN OF PROOF, prevalent theory is that burden of proof is on
affirmative, 353.
true view is that burden is on party undertaking to prove a point, 354.
557
INDEX.
BUKDEN OF TRO OF— (continued).
Roman law is to this effect, 355.
negatives are susceptible of proof, 356.
burden is properly on actor, 357.
party who sets up another's tort must prove it, 358.
so as to negligence, 359.
so in suit against railroad for firing, 360.
contributory negligence to be proved by defence, 361.
in a suit of non-performance of contract, plaintiff must prove non-per-
formance, 362.
rule altered when plaintiff sues in tort, 363.
in a contract against bailees, it is sufficient to prove bailment, 364.
burden of proving casus is on party setting it up, 365.
burden is on party assailing good faith or legality, 366.
burden is on party to prove that which it is his duty to prove, 367.
license to be proved to whom such proof is essential, 368.
burden of proving formalities is on him to whom it is essential, 369.
importance of question as to burden, 370.
court may instruct jury that a presumption of fact makes a prima facie
case (see Presumptions), 371.
BURIAL, provable by parol, though registered, 77.
admissibility and effect of registries of, 649-660.
BUSINESS. Regularity o/husiness men presumed, 1320.
BUSINESS ENTRIES of deceased persons admissible, 238.
entries of deceased or non-procurable persons in the course of their busi-
ness admissible, 238, 654, 688.
entries must be original, 245.
must be contemporaneous and to the point, 246.
but cannot prove independent matter, 247.
so of surveyors' notes, 248, 668.
so of notes of counsel and other officers, 249.
so of notaries' entries, 251.
BUSINESS TRANSACTIONS intended to have the ordinary effect, 1259.
CANCELLATION of will (see Statute of Frauds), 897.
CAPACITY to observe and narrate (see Witness), 391-406.
to act juridically (see Presumptions), 1252, 1271.
CARE, ordinary, presumed, 1255.
CARELESSNESS (see Negligence).
CARLISLE TABLES, when admissible, 39, 667, 1126.
CARRIER, when presumed guilty of negligence, 1150.
may dispute bill of lading, 1070, 1150.
delivery to, amounts to acceptance by vendee, within statute of frauds,
when, 876.
CASE, laid before counsel, how far privileged, 576-605.
CASE STATED, not an admission, 1090.
568
INDEX.
CASUS, may be refuted by proof of system, 38.
burden of proof as to, 363, 1293.
CAUSATION, its relations to relevancy, 25-27.
CAUSE OF ACTION, how far admitted by paying money into court,
1114.
CELEBRATION of marriage, when presumed regular, 1297.
CERTIFICATE, when under statute, must comply with statute, 122.
CERTIFICATES, inadmissible at common law, 120.
otherwise. by statute, 1120.
by notaries admissible, 123.
and so of searches of deeds, 126.
and so as to exemplifications, 95.
CERTIFIED COPY (see Copy).
CESTUI QUE TRUST (see Trustee).
admissions of, bind trustee, 1213.
judgment against, binds, 766, 780.
CESTUI QUE VIE, death of, when presumed, 1274-1277.
CHANCERY, practice of courts of, when judicially noticed, 296, 324.
will enforce discovery, when, 754.
will entertain bill to reform, remodel, or rescind writings, when, 905,
1017-1033.
rule in, as to reading whole of answer, 1099, 1116, 1119.
what evidence necessary to disprove answer, 1119.
admitting parol evidence and declarations of intention to
rebut an equity, 973.
will not review judgments of common law courts, 774.
nor will decrees of be reviewable at common law, 775.
effect of decrees of (see Judgments).
CHANGE, burden on party seeking to prove, 1284.
residence, 1285.
occupancy, 1286.
habit, 1287.
coverture, 1288.
solvency, 1289.
CHARACTER of party, when admissible evidence, 48.
term convertible with reputation, 49, 256, 562.
witness can only give evidence of general reputation, 48, 563.
in civil actions, evidence of bad, when admissible to lessen damages, 48-
56.
in civil actions, in suits for seduction or adultery, 50, 51.
breach of promise of marriage, 52.
defamation or libel, 53.
malicious prosecution, 54.
admissible when character is at issue, as in culpa in eli-
gendo, 48.
to impeach veracity of witness evidence of bad, admissible, 562, 563.
559
INDEX.
CHAEACTER— (continued).
of party's own witness cannot be impeached by general evidence (see
Witness), 549.
when contractually assumed cannot be repudiated, 1151.
questions degrading to, how far witness must answer (see Witnesses),
533-547.
of impeaching witness may be impeached, 568.
evidence of good, admissible to support witness attacked, 569-571.
official character of party, when admitted by his acting in, 1081, 1151.
when admitted by recognizing it, 1149, 1315.
of any one, when presumed from acting, 1315.
of party suing, admitted by paying money into court, 1114, 1115.
CHARTERS, how proved, 980.
when to be explained by evidence of usage, 958-967.
cannot be varied by parol, 980 a.
when presumed from long enjoyment, 1348-1352.
CHARTS, when admissible, 219-222, 668.
CHATTELS, interest in, how transferable, 869-873.
what warranty implied in sale of, 969.
CHEMISTS, admissible as experts, 443.
CHILD-BEARING, woman past age of, when presumed, 334, 1275.
CHILDREN, memory of, 410.
competency of (see Witnesses), 398-405.
credibility of (see Witnesses), 400.
presumptions respecting (see Infant), 1271, 1272.
CHRISTIANITY, how far judicially noticed, 284.
CIPHER, writing in, parol evidence admissible to explain, 939, 972.
CIRCUMSTANTIAL EVIDENCE, nature of, 1, 2, 15.
comparison of with direct evidence, 8, 1226.
CIRCUMSTANTIALITY, as affecting credibiUty, 411.
CITIES, how far judicially noticed, 340.
CLERGYMEN not privileged as witnesses, 596.
official entries of (see Registries), 649-655.
CLERK, entries in books of, ~when admissible, 654.
deceased, business entries of, when admissible, 240.
CLIENT, when professional communications are privileged (see Attorney),
576-593.
how far bound by admissions of counsel (see Admissions), 1184-1190.
presumption against deed of gift by, to attorney, 1248.
CLOTHES, may be proved by parol, without production, 77.
CLUB, members of, liable for each other's acts, 1181.
CLUB BOOKS, may be admissible against members, 1131.
COAL, presumptions as to ownership of, 1344.
CO-CONSPIRATOR, admissibility of admissions of, 1205.
CO-CONTRACTOR (see Joint Contractors), admissibility of admissions of,
1192-1200.
560
INDEX.
CO-DEFENDANT, in action of tort, admission by, not ordinarily evidence
against other defendants, 1204.
exception where conspiracy is shown, 1205.
CODICIL, effect of as to will, 884-900.
COERCION of married women, inference as to, 1256.
as influencing contract, 931.
will, 1009.
as invalidating admissions, 1099.
CO-EXECUTOR (see Executor).
COHABITATION, definition of, 84.
presumption of marriage from, 84, 85, 208, 1297.
presumption of legitimacy from, 1298.
when it estops the parties from denying their marriage, 1081, 1151.
COINCIDENCES in testimony, effect of, 413. See 411. '
COINCIDENT statements, part of the res gestae, 262.
COLLATERAL FACTS (see Relevancy).
evidence of, when inadmissible, 20, 29.
exception, if connected in system with matter in issue, 27, 38.
custom of one manor when admissible to prove custom of another,
38, 42.
admissible to establish identity, 24.
to show an alibi, 37.
to prove knowledge, intent, fraud, or malice, 30-36.
so as to prudence and wisdom, 36.
so to rebut hypothesis of accident or casus, 38.
judgments, not conclusive of, 786.
COLLECTOR, entries made by deceased, admissible, 238-249.
COLLISIONS, conflict of evidence as to, 404.
COMMUNICATIONS (see Privileged Communications).
COMMUNIS ERROR PACIT JUS, 1242.
COMPARISON of handwriting (see Handwriting), 712, 722.
COMPETENCY of witnesses (see Witness), 391, 490.
is for court, 400 et seq.
COMPILATIONS, &c., when admissible, 134.
COMPROMISE, offers of, when inadmissible, 1090.
authority of counsel to bind by, 1186, note.
COMPULSION, admissions made under, when receivable, 1099.
CONCEALMENT of evidence, inference from, 1265-1268.
CONCESSION (see Compromise).
CONDITIONS of an hypothesis, whose proof is relevant, may be prior, con-
temporaneous, or subsequent, 27.
non-existence of such conditions is also relevant, 28.
CONDUCT, may prove marriage, 84.
may involve an admission, 1081.
I may involve an estoppel (see Estoppels), 1136-1155.
\ of family, when admissible in pedigree (see Pedigree), 211.
VOL. u. 36 561
INDEX.
CONDUCT— (continued).
of family in matters of lunacy, 1 75.
of persons as to ancient facts -when admissible as hearsay, 176.
CONFEDERATE JUDGMENT, effect of, 807.
CONFEDERATES (see Conspirators).
CONFEDERATE STATES, exemplifications of records cannot be received
by force of federal statute, 99.
money of, 948.
judgments, when suable on, in other states, 807.
CONFESSION (see Admissions).
CONFESSION AND AVOIDANCE, burden of proof as to, 354-364.
effect of pleading in, as an admission (see Admissions), 1112.
CONFIDENTIAL COMMUNICATIONS (see Privileged Communications).
CONFIRMATION of witnesses (se.e Witnesses), 414-416.
CONFRONTING WITNESSES, rule as to, 560.
CONSENT, when inferred from silence (see Admissions), 1136, 1155.
onus of proving (see Burden of Proof), 367.
CONSIDERATION (see Contracts), may be proved or disproved by parol,
1042, 1044-1050.
presumed sufficient to support a promise, 1320, 1321.
want of failure of, in document, may be proved by parol, 1044.
must appear in writing under §§ 4 & 17 of statute of frauds, 870.
need not appear on guarantee, 878.
, for bills of exchange, presumed prima facie, but may be disputed, 1040,
1060.
for deed, presumed in absence of fraud, 1045.
when parol evidence admissible to explain, 1045,1046, 1055-1057.
effect of recital of, 1042.
CONSISTENCY of testimony of witnesses, effect of, 413.
CONSPIRATORS, acts and declarations of each, evidence against others,
1205.
CONSTANCY, presumptions from, 1284.
CONSTITUTION, of state, judicially noticed, 286, 287.
CONSTRAINT, admissions made under (s6e Coercion), 1099.
CONSTRUCTION of documents is office of court, 966.
CONSTRUCTIVE ACCEPTANCE, what will satisfy statute of frauds,
869-875.
CONTEMPORANEOUS acts, declarations, and writings, when admissible
as part of res gestae (see Res Gestae), 258-267, 1102, 1173.
entries of office or business must be, 246.
so must book entries, 683.
CONTEMPT in disobeying a subpoena, process of, 380.
by remaining in court, after order to withdraw, 491.
by refusing to testify, 494.
CONTINUANCE, presumption as to (see Presumptions), 1285.
CONTRA SPOLIATOREM, presumptions {se& Presumptions) , 1264.
562
INDEX.
CONTRACT, when must be by deed (see Deed).
when by writing attested (see Attesting Witness).
when by writing signed under statute of frauds (see Statute of Frauds).
may be made out from letters, to satisfy statute of frauds (see Statute of
Frauds), 872.
prior conference merged in written contract, 1014.
parol may prove contract partly oral, 1015.
oral acceptance of written contract may be so proved, 1016.
rescission of one contract and substitution of another may be so proved
1017.
exception at law as to writings under seal, 1018.
parol evidence admissible to reform a contract on ground of fraud, 1019.
so as to concurrent mistake, 1021.
but not ordinarily to contradict document, 1022.
reformation must be specially asked, 1023.
under statute of frauds, parol contract cannot be substituted for written,
1025.
collateral extension of contract may be proved by parol, 1026.
parol evidence inadmissible to prove unilateral mistake of fact, 1228.
and so of mistake of law, 1029.
obvious mistake of form may be proved by parol, 1030.
conveyance in fee may be shown to be a mortgage, 1031.
but evidence must be plain and strong, 1033.
admission of such evidence does not conflict with statute of frauds,
1034.
particular recitals may estop, 1039.
otherwise as to general recitals, 1040.
recitals do not bind third parties, 1041.
recitals of purchase money open to dispute, 1042.
consideration may be proved or disproved by parol, 1 044.
seal imports consideration, but may be impeached on proof of fraud or
mistake, 1045.
consideration in contract cannot prima facie be disputed by those claim-
ing under it, though other consideration may be proved in rebuttal
of fraud, 1046.
when fraud is alleged, stranger may disprove consideration, 1047.
and so may bondjide purchasers and judgment vendees, 1049.
made through broker, how provable 75, 968, 969.
when incidents annexed to, by usage (see Parol Evidence), 969, 970.
in a suit of non-performance of contract, plaintiff must prove non-per-
formance, 362.
a genuine document is presumed to be true, 1251.
a contract is to be presumed to have been intended to have been made
under a valid law, 1250.
an ambiguous document is to be construed in a way consistent with
good faith, 1249.
663
INDEX.
CONTRACT — {Continued).
agreement to pay inferred from reception of service, 1321.
and so from receipt of goods, 1322.
CONTRACTUAL ADMISSION to be distinguished from non-contractual,
1083.
contractual admissions may estop, 1085.
an ambiguous contract is to be construed in a way consistent with good
faith, 1249.
a contract is to be presumed to have been intended to have been made
under a valid law, 1250.
CONTRADICTION, when allowable, of party's Witness, 549.
of opponent's witness, 551.
of husband's testimony by wife, 432.
CONTRIBUTORY NEGLIGENCE to be proved by defence, 361.
CONVERSATION, evidence of to be guarded closely (see Admissions),
1075-1089,
when admissible as evidence of bodily or mental feelings, 268, 269.
as part of res gestae (see Res Gestae), 258-267.
when not evidence as relating to past events, 175, 266.
when part of lets in whole, 1103.
CONVEYANCE, when presumed (see Presumptions), 1347-1356.
when effected by operation of law, 858.
when requiring deed (see Deed).
attested instrument (see Attesting Witness).
CONVEYANCERS, usage of, judicially noticed, 331.
communications to, whether privileged, 581.
CONVICTION, incompetency of witness as to (see Witnesses), 397.
witness may be questioned as to his previous, 641, 542, 567.
if he denies fact, or refuses to answer, it may be proved by record,
567.
COPY, different kinds of.
classification, 89.
secondary evidence of documents admits of degrees, 90.
photographic copies are secondary, 91.
all printed impressions are of same grade, 92.
press copies are secondary, 98.
examined copies must be compared, 94.
exemplifications of record admissible as primary, 95.
in the United States made so by statute, 96.
statute does not exclude other proofs, 98.
only extends to court of record, 99.
statute must be strictly followed, 100.
office copy admitted when authorized by law, 104.
independently of statute, records may be received, 105.
original records receivable in same court, 106.
office copies admissible in same state, 107.
564
INDEX.
COPY — (continued).
so of copies of records generally, 108.
seal of court essential to copy, 109.
exemplification of foreign records may be proved by seal or parol, 110.
of deeds, registry is admissible. 111.
ancient registries admissible without proof, 113.
certified copy of official register receivable, 114.
exemplification of recorded deeds admissible, 115.
when deeds are recorded in other states exemplifications must be under
act of Congress, 118.
exemplifications of foreign wills or grants provable by certificate, 119.
certificates inadmissible by common law ; otherwise by statute, 120.
notaries' certificates admissible, 123.
searches of deeds admissible, 126.
copies of public documents receivable, 127.
effect of acknowledgment in making deed evidence, 740.
CORPORATION, what action of must be under seal (see Deed), 735.
deeds by, proved by corporate seal, 735.
effect of judgment against, on members, 761.
whether estopped from objecting that its contracts were illegal, 1151.
CORPORATION BOOKS, inspection of, 746.
books of a corporation admissible against members, 661, 1131.
but not against strangers, 662.
when proceedings of corporation can be proved by parol, 663.
CORROBORATION (see Witnesses).
court has discretion as to calling witnesses in respect to, 505.
an essential element in circumstantial evidence, 2, 15.
collateral facts, when admissible for, 568, 571.
of evidence furnished by ancient documents, how far necessary, 199.
COSTS, of witnesses, 456.
CO-TRESPASSERS, declarations of each, not admissible against all unless
concert be proved, 1 204.
COUNCIL OF TRENT, provision as to parish registers, 649-651.
COUNSEL in case may be witnesses, 420.
when privileged (see Witnesses), 576-593.
■ notes of, when evidence, 238.
COUNTERPART, what it is, 74.
counterparts are receivable singly, but not so duplicates, 74.
COUNTIES, how far judicially noticed, 340.
COURSE OF BUSINESS, presumptions from (see Presumptions).
knowledge of fact, 1243.
good faith, 1248..
regular negotiation of paper, 1301.
non-existence of claim inferred from non-claimer,.1320.
agreement to pay from work ordered, 1321.
orderly delivery of letters, 1323-1330.
565
INDEX.
COURSE OP BUSINESS — (continued).
entries by deceased or absent witnesses, 238.
death, handwritingand, character of party making entry must be proved,
238-251.
must appear that he had no motive to misstate, 238-240.
that entry was made in course of duty, 238-244.
that entry was made coincidently with facts, 245.
not evidence of independent matters, 247.
entries made by party in his own shop-book admisssible, 678-688.
COURT (see Judge).
COURTS OF EQUITY (see Chancery).
COURTS OF LAW, superior, judges of, and proceedings in, judicially no-
ticed, 324.
seals of, judicially noticed, 321.
signature of judges of, when judicially noticed, 321-324.
jurisdiction of, when presumed, 1302.
witnesses, parties, counsel attending, free from arrest, 389.
witnesses how made to attend (see Witnesses), 377.
records of, admissibility of (see Judgments), 758, 790.
may enforce discovery by interrogatories, when, 489, 490.
COURTS-MARTIAL, sentences of, effect of, 778, 1306.
COVERTURE (see Husband and Wife).
presumed continuous, 1288.
COVIN (see Fraud).
CREDIBILITY OF EVIDENCE is for jury, 41 7.
CREDIT OF WITNESSES (see Witnesses), 394, 420.
how impeached (see Witnesses), 527, 567.
how supported (see Witnesses), 569-571.
how far party may discredit his own witness (see Witnesses), 549.
CRIES of terror may be put in evidence as part of the res gestae, 268, 269.
CRIME, collateral, inadmissible (see Relevancy), 29.
CRIMINATION, witness not compellable to (see Witnesses), 533.
and so as to the production of documents, 751.
CROPS, growing, when within § 4 of statute of frauds, 866.
right of lessee to may be proved by usage, 969.
CROSS-EXAMINATION (see Witnesses), 527,547.
CURRENCY, when judicial notice taken of, 335.
CUSTODIAN of document, who properly is, 145, 195, 644.
CUSTODY, what is proper, of document, 194-199, 644.
question for judge, 144-146.
places of proper, of lost documents, must be searched, 147.
ancient documents must come from proper, 194-197.
mutilated documents, when admissible, if coming from proper, 631, 703
704.
attendance of person in, as witness, enforced by habeas corpus, 384.
CUSTOM-HOUSE registries, when admissible, 639.
566
INDEX.
CUSTOMS, how provable, 964.
when judicially noticed, 298, 331.
of one neighborhood when evidence of customs in another, 44-47.
when provable by tradition, 187.
evidence of, how far admissible to explain document (see Usage).
customary incidents may be annexed to contract, 969.
course of business admissible in ambiguous cases, 971.
CYPHER, parol evidence admissible to interpret, 939, 972.
DAMAGE, may be proved by expert, 450.
DAMAGES, when character admissible to influence (see Character), 47,
50-55.
admitted by payment into court only to extent of sum paid in, 1114.
DATE, not necessary part of contract, 976.
presumption that instruments were executed on day of, 977, 1311.
exceptions to this rule : —
when there is ground to suspect collusion in bankruptcy, 978.
when, in suits for adultery, letters are put in to prove terms on which
husband and wife lived, 978.
when indorsement of part payment by deceased obligee of bond is
put in by his representatives to bar statute of limitations, 1135.
of record conclusively proved by production of record, 980, 990.
when hour of judgment can be shown, 990.
dates presumed to be true, but may be varied by parol, 977.
exception to this rule, 978.
time may be inferred from circumstances, 979.
alteration of, in instrument, after completion, when fatal, 622-626.
DAY (see Date).
DEAF AND DUMB WITNESSES (see Witnesses), 406.
DEALING, presumptions from ordinary course of (see Course of Business),
1259.
previous, between parties, when admissible to explain contract, 971.
DEATH, when presumed, 1274.
from lapse of years, 1274.
period of death to be inferred from facts of case, 1276.
fact of death presumed from other facts, 1277.
letters testamentary not collateral proof, 1278.
of death without issue, 1279.
of declarant, necessary to let in declarations in matters of pedigree, 215.
declarations against pecuniary interest, 226.
may be proved by reputation, 223.
when necessary to let in declarations of predecessor in title, 1156,
1163 a.
as affecting declarations in course of office or business, 238, 251.
DEBT, when. presumable from course of business, 1321, 1322.
payment of, when presumed, 1360-65.
567
INDEX.
DECEASED PARTY, survivor cannot be examined against (see Parties),
466-477.
DECEASED PERSONS, business entries by, admissible (see Business En-
, tries), 238-251.
self- disserving declarations of, admissible, 226.
■ such declarations receivable, 226.
no objection that such declarations are based on hearsay, 227.
declarations must be self-disserving, 228.
independent matters cannot be so proved, 231.
admissible though other evidence could be had, 232.
position of declarant must be proved aliunde, 233.
declaration must be brought home to declarant, 235.
statements in disparagement of title receivable against strangers, 237.
DECEASED WITNESS, testimony of may be reproduced, by parol,' 177.
DECEPTION (see Fraud).
DECLARANT (see Admissions).
DECLARATION OF WAR, how proved, 339.
DECLARATIONS, admissible, in matters of general reputation (see Hear-
say), 252-256.
admissible, of pedigree (see Hearsay), 202-225.
of ancient possession (see Hearsay).
of associates (Bee Admissions), 1192, 1295.
against interest (see Admissions, Hearsay), 226-237, 1156, 1167.
in course of office or business (see Hearsay), 238-251.
as forming part of the res gestae (see Hearsay), 258-263.
intention, when inadmissible to explain writings (see Parol
Evidence), 936, 958.
of a party as to his own injuries admissible, 268.
so as to his condition of mind when such is at issue, 269.
as to matters of public interest (see Hearsay), 185, 200.
DECREE (see Chancery, Judgments).
DEDICATION to public of highway, when presumed (see Presumptions),
1346-1356.
to public of highway, how proved by admissions, 1157.
DEEDS, when must be attested (see Attesting Witness), 723-740.
by our own law, material alterations avoid, 622.
not so immaterial alteration, 623.
nor alteration by consent, 624.
nor alteration during negotiation, 626.
alteration by stranger does not avoid instrument as to innocent and non-
negligent holder, 627.
in writings inter vivos, presumption is that alteration was made before ex-
ecution, 629.
as to ancient documents, burden of exploration is not imposed, 631.
blank may be filled up, 632.
written entries are of more weight than printed, 925.
568
INDEX.
DEEDS — (continued).
parol evidence admissible to show that deed was not executed, or was
only conditional, 927.
and so to show that it was conditioned on a non-performed contingency,
928.
want of due delivery, or of contingent delivery, may be proved by parol,
930.
fraud or duress in execution may be shown by parol, and so of insanity,
931.
but complainant must have a strong case, 932.
so as to concurrent mistake, 933.
so of illegality, 935.
between parties, intent cannot be proved to alter written meaning, 936,
1050, 1054.
otherwise as to ambiguous terms, 937.
declarations of intent need not have been contemporaneous, 938.
evidence admissible to bring out true meaning, 939.
for this purpose extrinsic circumstances may be shown, 940.
acts admissible for the same purpose, 941.
ambiguous descriptions of property may be explained, 942.
erroneous particulars may be rejected as surplusage, 945.
ambiguity as to extrinsic objects may be so explained, 946.
parol evidence admissible to prove " dollar " means Confederate dollar,
948.
parol evidence admissible to identify parties, 949.
rescission of one contract and substitution of another may be so proved,
1017.
exception at law as to writings under seal, 1018.
parol evidence admissible to reform a contract on ground of fraud, 1019.
so as to concurrent mistake, 1021.
but not ordinarily to contradict document, 1022.
reformation must be specially asked, 1023.
under statute of frauds, parol contract cannot be substituted for written,
1025.
collateral extension of contract may be proved by parol, 1026.
parol evidence inadmissible to prove unilateral mistake of fact, 1028.
and so of mistake of law, 1029.
obvious mistake of form may be proved by parol, 1030.
conveyance in fee may be shown to be a mortgage, 1031.
but evidence must be plain and strong, 1033.
admission of such evidence does not conflict with statute of frauds, 1034.
resulting trust may be proved by parol, 1035.
so of other trusts, 1038.
particular recitals may estop, 1039.
otherwise as to general recitals, 1040.
recitals do not bind third parties, 1041.
569
INDEX.
DEEDS — (continued).
recitals of purchase money open to dispute, 1042.
consideration may be proved or disproved by parol, 1044,
seal imports consideration, but may be impeached on proof of fraud or
mistake, 1045.
consideration cannot prima facie be disputed by those claiming under
it, thou^ other consideration may be proved in rebuttal of fraud,
1046.
when fraud is alleged, stranger may disprove consideration, 1047.
and so may lonafide purchasers and judgment vendees, 1049.
acknowledgment may be disputed by parol, 1052.
deeds may be attacked by iona fide purchasers, and judgment vendees,
1055.
and so as to mortgages, 1056.
deed may be shown to be in trust, 1057.
usage cannot be proved to vary, 958.
otherwise in case of ambiguities, 961.
DEEDS, FOREIGN, how proved, 119.
DEFAULT, judgment by (see Judgment').
DEFENDANT, compellable to testify for opponent in civil causes (see Par-
ties), 489.
DEGRADE, how far witness bound to answer questions to (see Witness),
541.
DEGREES, character of, in regard to secondary evidence, '71, 90, 133.
DELAY in claiming rights, presumption from, 1320 a.
DELIVERY of deed, presumption of, 1313.
want of, or of contingent delivery, may be proved by parol, 930.
of goods to vendee's carrier, when acceptance within statute of frauds,
875.
of goods, what amounts to constructive, 875, 876.
of an account, how far binding as an admission, 1140.
of letter by post (see Letters), 1323-1330.
DEMONSTRATION, not attainable in juridical inquiries, 7.
DEMURRER, what it admits, 840.
effect of judgment in, 782.
DEPOSIT, place of (see Custody).
DEPOSITARY, proper, what is, 194, 199, 631, 644, 703.
DEPOSITIONS, admission governed by local laws, 609.
when taken in former suit are receivable, 177-180, 828 a.
DEPOSITIONS IN CHANCERY, how proved, 828 a.
DEPOSITIONS IN PERPETUAM MEMORIAM, 181.
DESCENT (see Admissions, Pedigree.)
DESCRIPTION, matter of essential, must be proved as laid (see Deeds),
1040, 1041.
falsa demonstratio nan nocet, 945, 1004.
applicable to two subjects lets in extrinsic proof (see Deeds), 942, 1040.
570
INDEX.
DESTRUCTION of evidence (see Presumptions), 1264-1266.
of document, what proof of, sufBcient to let in secondary evidence, 129.
admission of, by adversary, waiver of notice, 160.
of will, what sufficient to revoke it, 893.
DEVISE (see Parol Evidence, Will).
DIAGRAM, when admissible, 677.
DICTIONARY, judge will refresh his memory by, 282.
DILIGENCE, to be proved inductively, 36:
when presumed, 1255.
in search for document, wiat will let in secondary evidence (see Pri-
mariness), 148.
in search for attesting witnesses, what sufficient (see Attesting Witnesses),
726.
• burden of proof as to, 359-361.
DIMENSIONS, opinion as to, admissible, 512.
DIPLOMATIC CORRESPONDENCE, admissibility of, 638.
DIRECT EVIDENCE, compared with circumstantial, 8, 1226.
DISCLOSURES (see Privileged Communications).
DISCOVERY, rule may be granted to compel production of papers, 742.
so as to public documents, 745.
corporation books, 746.
public administrative officers, 747. •
deposit and transfer books, 748.
inspection must be ordered, but not surrender, 749.
previous demand must be shown, 750.
production of criminatory document will not be compelled, 751.
documents when produced for inspection may be examined by interpreters
and experts, 752.
deed when pleaded can be inspected, 753.
inspection may be secured by bill of discovery, 754.
papers not under respondent's control he will not . be compelled to pro-
duce, 756.
DISCREDIT, how far party may, his own witness (see Witnesses), 549.
how far witness may, himself, 533-544.
of husband's testimony by wife, 432.
DISCREPANCIES in evidence, when suspicious, 413.
DISCRETION OF JUDGE, as to examining young children, 403.
as to cumulation of proof, 505.
as to recalling witnesses, 574, 575.
as to the mode of examining witnesses, 496, 506.
DISGRACE, when witness bound toanswer questions tending to his (see
Witness), 541-545.
DISPOSITIVE DOCUMENTS, meaning of term, 61, 920-923, 1077.
DISSOLUTION of partnership proved by notice in newspaper, 673.
of marriage (see Dioorce).
DISTANCE, opinion as to, admissible, 512.
571
INDEX.
DIVORCE, does not destroy privilege of communications between husband
and wife, 429.
presumption of bastardy arising from, 1298-1300.
in suit for, by reason of adultery, how far wife's confession admissible,
1220. See 483, 1078.
in suit for, how far subsequent acts of adultery admissible, 34.
parties to record and their wives are adequate witnesses, 414.
evidence in such cases to be closely scrutinized, 433.
but not bound to answer questions respecting adultery, 425.
sentence of, whether a judgment in rem, 816-818.
foreign sentence of, 809-818.
wife's letters in suits for. See 978.
DOCKET ENTRIES not admissible when full record can be had, 826.
DOCUMENTS (see Public Documents).
a document is an instrument in which facts are recorded, 614.
instrument is that which conveys instruction, 615.
pencil writing is sufficient, 616.
detached writings (e. g. letters and telegrams) may constitute contract,
617.
relative document inadmissible without correlative, 618.
when may be proved by parol (see Primariness) , 60, 163.
varied by parol (see Parol), 1070.
admission of part involves admission of whole, 619.
admissions may prove execution of document, 1091.
unless when there are attesting witnesses, 1095.
admissions may prove contents, 1091.
limitations of this rule, 1093.
[For different forms of documents, see 635-637, 688. J
[For proof of documents, see 689, 740.]
[For inspection of documents, see 742 et seq.']
DOCUMENTS, PUBLIC (see Public Documents).
DOLLARS, parol evidence admissible to prove " dollar " means Confederate
dollar, 9f48.
DOMICIL, presumptions respecting, 1285.
declarations admissible as to, 1097.
DRUNKENNESS, incompetency of witness from, 418.
of attesting witness renders attestation invalid, 886.
admissibility on question of execution of document, 931.
DUCES TECUM (see Witnesses), 377.
DUMB WITNESS, when competent, 406.
examination by interpreter, 407.
DUPLICATE ORIGINALS, what they are, 74.
each considered primary evidence, 74.
DURATION OF LIFE, presumption as to, 1274.
DURESS (see Coercion), admissions made under, not receivable, 1099.
and so of contracts, 931.
672
INDEX.
DURESS — (continued).
and so of wills, 1009.
instrument may be defeated by parol proof of, 931.
EASEMENT, how far § 4 of statute of frauds applies to, 856.
to be presumed from unity of grant, 1346.
ECCLESIASTICS, when privileged as to confessional, 599.
EJECTMENT, possession sufficient title against wrong-doer, 1331-1334.
judgment in, when conclusive, 758, 786.
ELECTIONS, when judicially noticed, 337, 338.
ENGINEERS, admissible as experts, 441-444.
ENGRAVINGS, when admissible, 676.
on rings and stones admissible in matters of pedigree, 200, 660.
ENJOYMENT, inference of legal right from (see Presumptions); 1331-
1359.
ENLISTMENT, cannot be proved by parol, 65.
ENROLMENT, of documents (see Acknov>ledgments, Registries).
ENTRIES, when may be used to refresh memory (see Memory), 517-526.
of births, deaths, and marriages, by relatives, evidence in matters of ped-
igree, 219, 660.
in note or account books, against interest, admissible when party who
made them is dead, 223-237.
made in course of office or business,' when admissible (see Hearsay), 238-
251.
made by party in his own shop-books, admissible, 678-688.
reading of some does not let in other entries, 1103.
EQUITABLE MODIFICATIONS OF CONTRACTS, rescission of one
contract and substitution of another may be so proved, 1017.
exception at law as to writings under seal, 1018.
parol evidence admissible to reform a contract on ground of fraud, 1019.
so as to concurrent mistake, 1021.
but not ordinarily to contradict document, 1022.
reformation must be specially asked, 1023.
under statute of frauds, parol contract cannot be substituted for written,
1025.
EQUITABLE MODIFICATIONS OF STATUTE OF FRAUDS, parol
evidence not admissible to vary contract under statute, 901.
parol contract cannot be substituted for written, 902.
conveyance may be shown by parol to be in trust or in mortgage, 903.
performance, or readiness to perform, may be proved by way of accord
and satisfaction, 904.
contract may be reformed on above conditions, 905.
waiver and discharge of contract under statute can be proved by parol, 906.
equity will relieve in case of fraud, but not where fraud consists in plead-
ing statute, 907.
but will where statute is used to perpetuate fraud, 908.
573
INDEX.
EQUITABLE MODIFICATIONS, etc. — (continued).
so in case of part-performance, 909.
but payment of purchase money is not enough, 910.
where written contract is prevented by fraud, equity will relieve, 911.
parol contract admitted in answer may be equitably enforced, 912.
EQUITY, parol evidence admissible to rebut, 973.
collateral extension of contract may be proved by parol, 1026.
parol evidence inadmissible to prove unilateral mistake of fact, 1028.
and so of mistake of law, 1029.
obvious mistake of form may be proved by parol, 1030.
conveyance in fee may be shown to be a mortgage, 1031.
but evidence must be plain and strong, 1033.
admission of such evidence does not conflict with statute of frauds, 1034.
resulting trust may be proved by parol, 1035.
so of other trusts, 1038.
particular recitals may estop, 1039.
otherwise as to general recitals, 1040.
recitals do not bind third parties, 1041.
of purchase-money open to dispute, 1042.
consideration may be proved or disproved by parol, 1044.
seal imports consideration, but may be impeached on proof of fraud or
mistake, 1045.
consideration in contract cannot prima facie be disputed by those claim-
ing under it, though other consideration may be proved in rebuttal of
fraud, 1046.
when fraud is alleged, stranger may disprove consideration, 1047.
and so may bona fide purchasers and judgment vendees, 1049.
parol evidence admissible to rebut an equity, 973.
ERASURE (see Alterations), 621-632.
ERRONEOUS particulars may be rejected as surplusage, 945, 1004.
ESCAPE, presumption from, 1269.
ESCROW, effect of alteration in instrument delivered as an, 625.
delivery of deed as an, provable by parol, 930.
ESTOPPEL BY JUDGMENTS. Judgment on same subject matter binds,
758.
but only conclusively as to parties and privies, 760.
parties comprise all who when summoned are competent to come in
and take part in case, 763.
judgment need not be specially pleaded, 765.
judgment against representative binds principal, 766.
infant barred by proceedings in his name,- 767.
married woman not usually bound by judgment, 768.
judgment against predecessor binds successor, 769.
not so as to principal and surety, 770.
nor does judgment against executor bind heir, 771.
variation of form of suit does not affect principal, 779.
674
INDKX.
ESTOPPEL BY JVDGMENTS— (continued).
nor does nominal variation of parties, 780.
judgment to be a bar must have been on the merits, 781.
purely technical judgment no bar; effect of demurrers, 782.
judgment by consent a bar, 783.
point once judicially settled cannot be impeached collaterally, 784.
judgment not an estoppel when evidence is necessarily different, 786.
when evidence in second case is enough to have secured judgment in first,
then first judgment is a bar, 787.
party not precluded from suing on claim which he does not present, 788.
defendant omitting to prove payment or other claim as a set-off, cannot
afterward sue for such payment, 789.
judgment on successive or recurring claims not exhaustive, 792.
judgment not conclusive as to collateral points, 793.
judgments as to public rights admissible against strangers, 794.
pleadings may be estoppels, 838.
foreign judgments in personam are conclusive, 801.
but impeachable for want of jurisdiction or fraud, 803.
jurisdiction is presumed if proceedings are regular, 804.
such judgments do not merge debt, 805.
cannot be disputed collaterally, 806.
Confederate judgments, effect of, 807.
judgment of sister states under the federal Constitution are conclusive,
808.
but may be avoided on proof of fraud or non-jurisdiction, 809.
ESTOPPEL BY ADMISSIONS (see Admissions).
admissions may be by acts, 1081.
of a right distinguishable from admission of a fact, 1082.
contractual admission to be distinguished from non-contractual, 1083.
may estop, 1085.
estoppels are dispensations of evidence from the opponent, 1086.
even a false statement may estop, 1087.
otherwise as to non-contractual admissions, 1088.
silence of a party during another's statements may imply admission,
1136.
so as to party acquiescing in testimony of witness, 1139.
otherwise as to silence on reception of accounts, 1140.
so of invoices, 1141.
silent admissions may estop, 1142.
extension of estoppels of this class, 1143.
so as to third parties, 1144.
party selling cannot set up invalidity of sale, 1147.
owner of land bound by tacit representations, 1148.
subordinate cannot dispute superior's title, 1149.
other party's action must be influenced, and the misleading conduct must
be culpable, 1150.
576
INDEX.
ESTOPPEL BY ADUISSIO'SS — (continued).
assumed character cannot afterwards be repudiated, 1151.
but silence, on being told of an unauthorized act, does not estop, 1152.
admitting official character of a person is a prima facie admission of his
title, 1153.
letters in possession of a party not ordinarily admissible against him,
1164.
admissions made, either without the intention of being acted on, or with-
out being acted on, do not estop, nor can third parties use estoppel,
1155.
estoppels must be mutual, 1078-1085, 1155.
receipts, when bilateral, may estop, 1064, 1130.
EVIDENCE is proof admitted on trial, 3.
proof is the sufficient reason for a proposition, 1.
formal proof to be distinguished from real, 2.
object of evidence is juridical conviction, 4.
formal proof should be expressive of real, 5.
analogy is the true logical process in juridical proof, 6.
proof to be distinguished from demonstration, 7.
fallacy of distinction between direct and circumstantial evidence, 8.
juridical value of hypothesis, 12.
facts cannot be detached from opinion, 15.
must be confined to points in issue (see Relevancy).
of collateral facts, how far admissible (see Relevancy), 29, 47, 56.
of character of party, when admissible (see Character), 47 et seq.
of witness, when admissible (see Character), 49, 562.
on whom the burden of proof lies (see Burden of Proof ).
hearsay, generally inadmissible (see Hearsay), 170, 221.
best, always required (see Primary Evidence), 60, 269.
addressed to senses (see Inspection), 345.
admissions, when evidence (see Admissions), 1075, 1220.
what excluded on grounds of public policy (see Witnesses), 576, 608,
751.
when more than one witness necessary, 414.
what acts must be evidenced by writing signed under statute of frauds
(see Statute of Frauds), 850, 912.
party tampering with, chargeable with consequences, 1265.
so of party holding back, 1266.
what instruments must be attested by witnesses (see Attesting Witnesses,
Statute of Frauds).
parol, inadmissible to vary writings (see Parol Evidence), 920, 1070.
of witnesses (see Witnesses), 376, 543.
of documents (see Documents), 614, 746.
proof of handwriting (see Handwriting), 703, 740.
EXAMINATION of witness viva voce (see Witnesses), 491, 615.
if used as an admission, whole must be read, 1109.
576
INDEX.
EXAMINED COPY (see Copy).
EXCHANGE, bills of (see Negotiable Paper).
EXCLAMATIONS, when evidence of, admissible, 269.
EXCUSE, burden of proving lawful, 367, 368.
EXECUTED CONTRACTS, effect of statute of frauds, &c., on, 904. .
EXECUTION OF DEEDS, &c., how proved, 689, 740.
when presumed, 1313.
when admitted, 1094, 1114.
of deeds thirty years old requires no proof, 703.
when party is a corporation, 735.
of wills (see Statute of Frauds).
EXECUTIONS, when admissible in evidence, 833 a, 834, 1118, 1289.
EXECUTIVE, communications of, when privileged, 605.
documents, notice taken of, 317-322.
recitals in, may be proved, 638.
EXECUTOR, title of, how proved, 66, 811.
judgment against testator binding upon, 769.
admission of testator, evidence against, 1158.
judgment against, does not bind heir, 771.
admissions and promises by one, when evidence against others, 1199 a.
EXEMPLIFICATION (see Copies), 94, 120.
when attainable, excludes parol proof, 90.
EXHIBITS, when to be read with document, 618, 1106.
EXPERTS testify as specialists, 434.
may be examined as to laws other than the lex fori, 435.
but cannot be examined as to matters non-professional, or of common
knowledge, 436.
whether conclusion belongs to specialty is for court, 437.
may be examined as to scientific authorities, 438.
must be skilled in specialty, 439.
may give their opinions as to conditions connected with their specialties,
440.
physicians and surgeons are so admissible, 441.
so of lawyers, 442.
so of scientists, 443.
so of practitioners in a business specialty, 444.
so of artists, 445.
so of persons familiar with a market, 446.
opinion as to value admissible, 447.
generic value admissible in order to prove specific, 448.
proof of market value may be by hearsay, 449.
and so as to damage sustained by property, 450.
on questions of sanity, not only experts but friends and attendants may
be examined, 451.
admitted to test writings, 718.
photographers in such cases admissible as experts, 720.
vol,. II. 37 577
INDEX.
EXPERTS — (continued).
may be cross-examined as to skill, 721 .
their testimony to be closely scrutinized, 722.
opinion of expert inadmissible as to construction of document; but oth-
erwise, to decipher and interpret, 972.
testimony to be closely watched, 454.
may be examined on hypothetical ease, 452.
may be specially feed, 456.
may aid in inspection of documents under order of inspection, 752.
EXPRESSIONS of bodily or mental feelings admissible as primary evidence,
268, 269.
EXTRINSIC EVIDENCE, to explain testator's intent, when admissible,
(see Parol Evidence), 937, 978.
FABRICATION OF EVIDENCE, presumption from, 1264-1266.
FACT, knowledge of, when presumed, 1243.
FACTOR (see Agent, Broker), lien of, judicially noticed, 331.
FACTS cannot be detached from opinion, 15.
FAINTNESS does not exclude primary evidence, 72.
FALSA DEMONSTRATIO NON NOCET, application of maxim 412,
945, 1004.
FALSEHOOD, tests for detecting, 412-414, 527-547.
FAMILY, reputation in is proof of pedigree (see Pedigree), 205-221.
conduct of, towards a relative, when admissible on question of insanity, 1 75.
FAMILY PORTRAITS, admissible in matters of identity and pedigree, 219,
^ 676.
FEAR, admissions under influence of, inadmissible, 1099.
FEELINGS, expressions of bodily or mental admissible as primary, 26, 268,
269.
FEES, what allowable to witnesses, 380.
experts, 456.
FEE SIMPLE, title to, presumed from possession, 1331.
in land, carries presumptively right to minerals, 1344.
FEME COVERT (see Husband and Wife).
FIERI FACIAS, its effect as evidence, 833 a, 834, 1118.
FINAL, judgments inconclusive unless, 781.
award bad unless, 800.
FIRINGS, when similar can be put in evidence to prove negligence, 42.
FIXTURES, contract respecting, not within § 4 of statute of frauds, 856, 863.
FLAGS, inscriptions on, provable by parol, 81.
FLIGHT, presumptions from (see Presumptions), 1269.
FOREIGN COURTS, seals of, when judicially noticed, 321.
presumed to act within their jurisdiction, 804, 1302-1308.
FOREIGN JUDGMENTS in personam are conclusive, 801.
but impeachable for want of jurisdiction or fraud, 803.
jurisdiction is presumed if proceedings are regular, 804.
578
INDEX.
FOREIGN JUDGMENTS— (continued).
such judgments do not merge debt, 806.
cannot be disputed collaterally, 806.
Confederate judgments, eflfect of, 807.
judgment of sister states under the federal Constitution are conclusive,
808.
but may be avoided on proof of fraud or non-jurisdiction, 809.
FOREIGN LANGUAGE, may be explained by parol, 493, 939.
FOREIGN LAWS, not judicially noticed, 300.
presumed not to differ from our own, 314.
must be proved by parol, 300-304, 1292.
who are experts for this purpose, 305-308.
may be proved by production of codes, 309.
foreign rules of evidence not binding, 316.
FOREIGN RECORDS, how to be proved, 110, 119.
FOREIGN SOVEREIGN (see Sovereign), 320, 323.
FOREIGN STATES, what constitute, 288.
existence and titles of, judicially noticed, 323, 339, 340.
laws of (see Foreign Laws) .
FOREIGN STATUTES, how to be proved, 309, 310.
FOREIGN WILL, how proved, 66.
FORFEITURE, questions exposing witness to, he is not bound to answer
(see Witnesses), 534.
FORM, to be distinguished from substance in proof, 1.
FORMALITIES, burden of proving is on him to whom it is essential, 369,
1313.
FRAUD in execution of document may be shown by parol, 931, 1009, 1019.
but complainant must have a strong case, 932.
party not estopped from proving, 931, 1009.
admission obtained by, not inadmissible, 1089.
may be established by parol evidence, 931, 1019.
judgment may be impeached on proof of, 797.
not presumed, 366, 1248, 1249.
FRAUDS, STATUTE OF (see Statute of Frauds).
FRIEND, confidential communication to, not privileged, 607.
FRUITS, when within § 4 of statute of frauds, 866.
GAZETTES AND NEWSPAPERS, evidence of public official documents,
671.
newspapers admissible to impute notice, 672.
so to prove dissolution of partnership, 673.
but not generally for other purposes, 674.
knowledge of newspaper notice may be proved inferentially, 675.
GENERAL INTEREST, reputation of community admissible as to matters
of public interest, 185.
facts of only personal interest cannot be so proved, 186.
579
INDEX.
GENERAL INTEREST — (continued).
insulated private rights cannot be so affected, 187.
witnesses to such hearsay must be disinterested, 190.
declarations of deceased persons pointing out boundaries admissible,
191.
declarations must be ante litem motam, 193.
ancient documents receivable to prove ancient possession, 194.
such documents must come from proper custody, 194, 195.
need not have been contemporaneous possession, 199.
verdicts and judgments receivable for same purpose, 200.
GENERIC PROOF, admissible to infer specific, 38, 448.
GENUINENESS, provable by parol, 78.
GEOGRAPHICAL FACTS, judicial notice taken of, 339, 340.
GEOGRAPHY, books of, when admissible, 664.
GESTATION, time of, how far judicially noticed, 334.
GOOD CHARACTER (see Character).
GOOD FAITH, burden of proof as to, 366.
presumption as to, 1248.
collateral facts admissible to prove, 35.
GOODS, contract for sale of, must be by signed writing, when (see Statute
of Frauds), 869.
warranty of title and quality, when implied in sale of, 969.
GOVERNMENT, acts of, how proved, 280, 317, 318, 635-648.
acts of foreign or colonial, how proved, 309-312.
communication to and from, when inadmissible (see Privileged Communi-
cations), 604, 605.
communications from, privileged, 604, 605.
GRAND JURY, transactions before, how far privileged, 601.
GRANT, from sovereign, when so presumed, 1348.
of incorporeal hereditament presumed after twenty years, 1349.
so of intermediate deeds and other procedure, 1352.
GRASS, when within § 4 of statute of frauds, 866.
GRAVESTONES, inscriptions on, provable by parol, 82.
GREAT SEAL, judicially noticed, 318.
GROANS, admissible to prove symptoms, 269.
GROSS NEGLIGENCE, when an estoppel, 1143-1155.
GROWING CROPS, when within § 4 of statute of frauds, 866.
GUARANTEES, must be in writing, 878.
statutory restriction relates to collateral, not original, promises, 879.
in such case indebtedness must be continuous, 880.
effects on, of judgments, 770.
GUARDIAN, admissions by, 1208.
judgments relating to, 766, 767.
GUILT, burden of proof as to, in civil issues, 1245.
GUILTY, plea of, admissible against defendant in civil suit, 1110.
knowledge, collateral facts admissible to prove, 31-36.
580
INDEX.
HABEAS CORPUS AD TESTIFICANDUM (see Witnesses) may issue to
bring in imprisoned witness, 384.
HABIT, when admissible as a basis of induction, 40, 954, 998, 1008, 1287.
presumed to be continuous, 1287.
presumptions from, 954, 1287. See 38.
HABIT AND REPUTE, evidence of marriage, 84, 85, 1297.
HABITS OF ANIMALS, presumptions as to, 1295.
HABITS OF MEN, when judicially noticed, 335. See 1287.
HANDWRITING, documents over thirty years old prove themselves, 703,
1359.
ancient documents may be verified by experts, 704.
may be proved by writer himself, or by his admissions, 705.
party may be called upon to write, 706.
seeing a person write qualifies a witness to speak as to signature, 707.
witness familiar with another's writing may prove it, 708.
burden on party to prove witness incompetent, 709.
on cross-examination witness may be tested by other writings, 710.
comparison of hands permitted by Roman law, 711.
otherwise by English common law, 712.
exception made as to test paper already in evidence, 713.
in some jurisdictions comparison is admitted, 714.
test papers made for purpose inadmissible, 715.
unreasonableness of exclusion of comparison of hands, 717.
experts admitted to test writings, 718.
photographers in such cases admissible as experts, 720.
experts may be cross-examined as to skill, 721.
their testimony to be closely scrutinized, 722.
attesting witness, when there be such, must be called, 723.
collateral matters do not require attesting witness, 724.
when attestation is essential, admission by party is insufficient, 725.
absolute incapacity of attesting witness a ground for non-production, 726.
secondary evidence in such case is proof of handwriting, 727.
such evidence not admissible on proof only of sickness of witness, 728.
only one attesting witness need be called, 729.
witness may be contradicted by party calling him, 730.
but not by proving his own declarations, 731.
attesting witness need not be called to document thirty years old, 732.
accompanying possession need not be proved, 733.
deeds by corporations proved by corporate seal, 735.
attesting witness need not be called when adverse party produces deed
under notice, and claims therein an interest, 736.
where a document is in the hands of adverse party who refuses to pro-
duce, then party offering need not call attesting witness, 737.
nor need such witness be called to lost documents, 738.
sufficient if attesting witness can prove his own handwriting, 739.
must be jonjna/acie identification of party, 739 a.
681
INDEX.
H AND WKITIN G — (continued) .
when statutes make acknowledged instrument evidence, it is not neces-
sary to call attesting witness, 740.
document must be proved by party offering, 689.
otherwise when produced by opposite party claiming interest under
it, 690.
under statutes, proof need not be made unless authenticity be denied
by affidavit, 691.
seal may prove authorization of instrument, 692.
substantial identification is sufficient, 693.
distinctive views as to corporations, 694.
public seal proves itself, 695.
mark may be equivalent to signature, 696.
stamps when necessary must be attached, 697.
documents are to be executed according to local law, 700.
identity of alleged signer of document must be shown, 701.
document by agent cannot be proved without proving power of agent,
702.
HANDWRITING OF EXECUTIVE, when judicially noticed, 322.
HEALTH, may be proved by party's own declarations,268.
HEARSAY.
Generally Inadmissible.
hearsay in its largest sense convertible with non-original, 170.
non-original evidence generally inadmissible, 171.
objections to such evidence, 172.
acts may be hearsay, 173.
interpretation is not hearsay, 174.
testimony of non- witnesses not ordinarily receivable when reported by an
other, 175.
so of public acts concerning strangers, 176.
Exceptions as to Deceased Witness.
evidence of deceased witness in former trial admissible, 177.
so of witnesses out of jurisdiction, 178.
so of insane or sick witness, 179.
mode of proving evidence in such case, 180.
Exception as to Depositions in Pekpetuam Memouiam.
practice as to such depositions, 181.
Exception as to Matters of General Interest and Ancient Pos-
session.
reputation of community admissible as to matters of public interest, 185.
facts of only personal interest cannot be so proved, 186.
insulated private rights cannot be so affected, 187.
witnesses to such hearsay must be disinterested, 190.
declarations of deceased persons pointing out boundaries admissible, 191.
declarations must be ante litem motam, 198.
such documents must come from proper custody, 194, 195.
682
INDEX.
HEARSAY— (continued').
need not have been contemporaneous possession, 199.
verdicts and judgments receivable for same purpose, 200.
Exception as to Pedigree, Relationship, Bieth, Marriage, and
Death.
declarations admissible as to pedigree, 201.
relationship of declarants necessary to admissibility, 202.
pedigree may be proved by reputation, 205.
statements of deceased relatives inadmissible, but are to be scrutinized as
to motive, 207.
such declarations may extend to facts of birth, death, and marriage, 208.
writings of deceased ancestor admissible for same purpose, 210.
and so may conduct, 211.
declarations may go to facts from which relationship may be inferred, 212.
must have been ante litem motam, 213.
declarant must be dead, 215.
must have been related to the family, 216.
dissolution of marriage connection by death does not exclude, 217.
relationship must be proved aliunde, 218.
ancient i'amily records and monuments admissible for same purpose, 219.
so of inscriptions on tombstones and rings, 220.
so of pedigrees and armorial bearings, 221.
death may be proved by reputation, 223.
so may marriage, 224.
peculiarity in suits for adultery, 225.
Exception as to Self-disserving Declarations of Deceased
Persons.
such declarations receivable, 226.
no objection that such declarations are based on hearsay, 227.
declarations must be self-disserving, 228.
independent matters cannot be so proved, 231.
admissible though other evidence could be had, 232.
position of declarant must be proved aliunde, 233.
declaration must be brought home to declarant, 235.
statements in disparagement of title receivable against strangers, 237.
Exception as to Business Entries of Deceased Persons.
entries of deceased or non-procurable persons in the course of their busi-
ness admissible, 238.
entries must be original, 245.
must be contemporaneous and to the point, 246.
but cannot prove independent matter, 247.
so of surveyors' notes, 248.
so of notes of counsel and other officers, 249.
so of notaries' entries, 251.
Exception as to general Reputation when such is Material.
admissible to bring home knowledge to a party, 252.
583
INDEX.
HEAESAY— (continued).
but inadmissible to prove facts, 253.
hearsay is admissible when hearsay is at issue, 254.
value so provable, 255.
and so as to character, 256.
Exception as to Refreshing Memort or Witness.
for this purpose hearsay admissible, 257.
Exception as to res gestae.
res gestae admissible though hearsay, 258.
coincident business declarations admissible, 262.
and so' of declarations, coincident with torts, 263.
what is done or exhibited at such a time may be proved, 264.
declarations inadmissible if there be opportunity for concoction, 265.
declarations inadmissible to explain inadmissible acts; nor are declarations
admissible without acts, 266.
inadmissible if the witness himself could be obtained, 267.
Exception as to Declarations concerning Party's own Health
AND State of Mind.
declarations of a party as to his own injuries admissible, 268.
so as to his condition of mind when such is at issue, 269.
HEATHEN, may be competent as a witness, and how sworn, 387.
HEDGE, presumptions as to ownership of, 1340.
HEIR, judgments against ancestor binding on, 760-771.
admissions of ancestor, when binding, 1156-1160.
HIGHWAY, presumption as to ownership of, 1339.
as to dedication of to public, 1331-1339, 1346.
right of, provable by parol and reputation, 77, 185-194, 1157-1160.
HIRING AND SERVICE, for how long presumed to be, 883.
contract of, explained by custom as to holidays, 969.
agreement to pay for presumed, 1321.
terms of, provable by parol, though in writing, when, 77.
HISTORICAL EVENTS, when judicially noticed, 337.
HISTORY, when admissible, 964.
HOLDING OVER, by tenant, effect of, 854.
HOLIDAYS, custom as to, may explain contract of service, 969.
HOPS, not within § 4 of statute of frauds, 866.
HORSE, habits of, presumptions from, 1295.
HOSTILE WITNESS may be probed by leading questions, 500.
when may be impeached by party calling him, 549.
HOUR, when it may be proved, 990.
HUSBAND AND WIFE (see Marriage, Proof of Relationship), sexual re-
lations between, when presumed, 1298.
supremacy of husband, when presumed, 1256.
marriage of, when inferred from cohabitation, 83, 84, 1297.
parties may estop themselves from denying marriage, 1066, 1151.
opinion of witnesses as to relationship, when admissible, 509-512.
584
INDEX.
HUSBAND AND WIFE — (continued).
wife's agency in housekeeping, when presumed, 1257.
As' Witnesses.
husband and wife incompetent in each other's suits at common law, 421.
but may be witnesses to prove marriage collaterally, 424.
cannot be compelled to criminate each other, 425.
distinctive rules as to bigamy, 426.
cannot testify as to confidential relations, 427.
consent will waive privilege, 428.
effect of death and divorce on admissibility, 429.
general statutes do not remove disability, 430.
otherwise as to special enabling statutes, 431.
husband and wife may be admitted to contradict each other, 432.
in divorce cases, testimony to be carefully weighed, 433.
judgment against husband, when binding wife, 768.
Admissions of Husband and Wife.
husband's declarations may be received against wife, 1214.
wife's admissions may be received when she is entitled to act juridically,
1216.
her admissions may bind her husband, 1217.
may bind her trustees, 1218.
may bind her representatives, 1219.
admissions of adultery closely scrutinized, 1220.
Mutual Relations of.
opinion of witnesses admissible as to, 509-512.
letters of, to each other or to strangers, may be received, but date of let-
ters must be proved, 978.
HYPOTHESIS, juridical value of, 12, 20, 27.
IDENTITY, when inferred by jury from comparison, 345-347.
presumption respecting, from the same name, 1273.
of party sued, with signer of document sued on, how proved, 701.
relevancy of evidence relative to, 24, 37.
opinion admissible as to, 511.
of party to suit, may be proved by his attorney, 588, 589.
of party, collateral facts when admissible to prove, 37.
in reference to handwriting, 701.
of object described in document when ascertained by parol, 939-955.
of suits so as to let in former testimony, 177.
judgments as estoppels (see Judgments), 758.
when determinable by inspection, 347.
IDIOT, cannot be witness, 401, 402.
IGNORANTIA JURIS NEMINEM EXCUSAT, maxim applicable In all
cases, 1240.
ILLEGALITY, party may avoid deed by proving, 935.
avoids instruments, 935.
585
INDEX.
ILLEGALITY — {continued).
may be proved by parol, 927-935.
when presumed, 1248.
ILLEGITIMACY (see Legitimacy).
IMBECILITY of mind, when incapacitating witness, 401, 402.
IMMUTABILITY, presumptions in favor of, 1284.
IMPARTIALITY of witness, how impeached, 408, 562, 563, 566.
IMPEACHING WITNESS, party cannot discredit his own witness, 549.
but may witness called by adversary (see Witness), 551-567.
INCIDENTS annexed by usage, 969, 970.
INCONSISTENT statements, effect of on credibility, 413.
party can show that witness has made, 551.
INDEMNIFY, promise to, when a guarantee within statute of frauds, 9 78-980.
INDORSEMENT (see Negotiable Paper).
of interest, effect of, on statute of limitations, 1135. See 229, 230.
how far necessary to show date of, 1135.
admissions of indebtedness, 1126.
on writs, when admissible, 1107.
on writings, when admissible, 619, 1103, 1135.
INDORSER, admissions of, when evidence against indorsee, 1163 a, 1199 a.
cannot dispute preceding signatures on bill, 1149.
INDUCEMENT, judgment inter alios admissible, to prove, 819-822.
INFAMY, no incompetency on ground of (see Witnesses), 396, 397.
but may be proved to affect credit, 567.
INFANCY, when determinable by inspection, 847.
INFANT, presumptions respecting, 1271, 1272.
admissibility as witness depends on intelligence (see Witnesses), 398.
incapable of matrimony, 1271.
crime, 1272.
how far competent in civil relations, 1272.
how aflfected by guardian's admissions, 1208.
judgments, 767.
fraudulently representing himself of age, liable in equity, 1151.'
admissions made by, may be put in evidence against him when of age,
1124, n.
INFERENCE (see Presumptions).
INFIDEL, competent as a witness, 395, 896.
INFLUENCE, undue, when provable to affect deed or will, 931, 1009.
INJURY, inference of malice from, 1261.
INNOCENCE, when presumed, 1244.
in civil issues preponderance of proof decides, 1245.
INQUIRIES, answers to, how far evidence to prove search for document,
144-150.
for attesting or other witness, 178, 726-728.
to prove denial by bankrupt, 254.
586
INDEX.
INQUISITION (see Lunacy). 403.
admissibility, and effect of, 403, 812, 1254.
IN REM, judgments, definition of, 816.
do not bind in personam, 818.
how far binding upon strangers, 816.
how far binding as to status, 817.
INSANITY, once established is presumed to continue, 1253.
to be inferred from facts, 1254.
whether to be proved by treatment of party by relatives, 175.
acquaintances of party can testify as to their belief, 451.
opinions admissible respecting (see Experts'), 451.
inquisition in lunacy, how far evidence of, 403, 812, 1254.
of attesting witness, effect of, 726-728.
how far making witness incompetent (see Witnesses'), 402.
when letting in his former depositions, 179.
when reputation concerning is admissible, 35.
effect of inquisitions of, 403, 812, 1254.
INSCRIPTIONS, when provable by copy, 82.
may be evidence in pedigree, 220.
on rings, evidence in pedigree, 220.
on banners, provable by oral testimony, 81.
INSOLVENCY, presumption and proof of, 834, 1289.
opinion as to inadmissible, 509.
how far provable by reputation, 253.
INSPECTION BY JURY. Inspection is a substitute of the eye for the
ear in the reception of evidence, 345.
is valuable when an ingredient of circumstantial evidence, 346.
not to be accepted when better evidence is to be had, 347.
INSPECTION OF DOCUMENTS by order of court. Rule may be granted
to compel production of papers, 742.
so as to public documents, 745.
corporation books, 746.
public administrative officers, 747.
deposit and transfer books, 748.
inspection must be ordered, but not surren<ler, 749.
previous demand must be shown, 750.
production of criminatory document will not be compelled, 751.
documents when produced for inspection may be examined by interpret-
ers and experts, 752.
deed when pleaded can be inspected, 753.
inspection may be secured by bill of discovery, 754.
papers not under respondent's control he will not be compelled to pro-
duce, 756.
INSTINCTIVE expressions are admissible to prove condition of mind,
269.
INSTRUMENTS (see DocuTuents), 614, 756.
687
INDEX.
INSURANCE, burden of proof in eases of, 356.
notes, 1247-1252.
parol evidence inadmissible to vary terms of policy of, 921, 961, 1014.
evidence of usage admissible to explain terms in policy of, 961,
962.
insurer presumed to know usage of trade insured, 1 243.
to know contents of Lloyd's Shipping List, 675.
applicant for insurance may contradict written statement made by agent,
1172.
INTENTION (see Parol Evidence, Wills).
probable consequences presumed to have been intended, 1258.
but this is a presumption of fact, 1261.
business transactions intended to have the ordinary effect, 1259.
a new statute presumes a change in old law, 1260.
between parties, intent cannot be proved to alter written meaning, 936.
otherwise as to ambiguous terms, 937.
declarations of intent need not have been contemporaneous, 938.
proof of, when relevant:
in trespass, 31.
in libel and slander, 32.
in fraud, 33.
in adultery, 34.
party may be examined as to, 482, 508, 955.
admissible to rebut an equity, 973.
independent of limitations of time, 938.
when admissible to construe wills, 992-1000.
INTEREST (see General Interest), declarations against, why and when ad-
missible (see Admissions, Hearsay).
when indorsement of affects statute of limitations, 228, 1126, 1135.
how far necessary to show date of indorsement, 1135.
witness no longer inadmissible on ground of (see Witness), 419.
may be questioned as to, 569-566.
mterest in lands does npt include perishing severable crops and fruit,
866.
INTERLINEATIONS (see Alterations).
INTERPRETATION of deeds, 936-949, 1017, 1049, 1052-1057.
of other documents (see Parol Evidence), 920, 1070.
of witness, is not hearsay, 1 74.
of wills, 993-1006.
INTERPRETER, communication through (see Witnesses), 174, 407, 495.
is to be sworn, 493.
of deaf and dumb witnesses, 407.
INTERROGATORIES, parties may be examined under before trial, 489,
490 (see as to discovery, 742-766).
INTOXICATION, when incapacitating witness, 418.
when vitiating admissions, 1138.
688
INDEX.
INVENTORY, exhibited by executor or administrator, when evidence of
assets, 1121.
INVOICE, variation of by parol, 1070.
silence in reception of no admission, 1141.
INVOICES receivable to determine value, 175.
I 0 U, presumptive effect of, 1337.
IRRELEVANT FACTS, not evidence (see Relevancy).
ISSUE, evidence must be relevant to (see Relevancy).
proof of collateral facts excluded, 29-56.
exceptions to rule, 30-55.
onus as to proof of (see Burden of Proof ).
JOINT CONTRACTORS, when acknowledgment by one takes debt out of
statute of limitations as to others, 1195.
admission by one, effect of on others, 1197.
JOINT CONTRACTORS AND OWNERS, judgment against one joint
contractor binds the other, 772.
but not so as to tort-feasors, 773.
persons jointly interested may bind each other by admissions, 1192.
so of partners, 1194.
as to acknowledgment to take debt out of statute, 1195.
such power ceases at dissolution of connection, 1196.
so as to joint contractors, 1197.
persons interested, but not parlies, may affect suit by admissions, 1198.
but mere community of interest does not create such liability, 1199.
executors against executors, indorsers against indorsees, 1199 a.
declarations of declarant, cannot establish against others his interest with
them, 1200.
authority terminates with relationship, 1201.
admissions in fraud of associates may be rebutted, 1202.
self-serving statements of associates inadmissible, 1203.
in torts, co-defendant's admissions not to be received against the others,
unless concert is proved, 1204.
but where conspiracy is proved admissions of co-conspirators are receiva-
ble, 1205.
JOINT DEBTOR, judgment against one, effect of (see Joint Contractor).
in action on trespass against two, effect of judgment against the other,
773.
JOURNALS, of legislature, how proved, 296.
of court, when admissible, 825.
admissibility and effect of, 637.
JUDGE, judgment a conclusive protection to a, 813.
notes of, evidence of testimony of deceased witness, 180.
how far entitled to introduce new points of law, 284.
may refuse to try frivolous issues, 289.
is not bound to disclose grounds of decision, 600.
589
INDEX.
JUDGE — (continued).
of one court, how far judicially noticed by judge of another, 324.
has a discretion as to mode of examining and recalling witnesses (see
Discretion, Witness).
whether he can depose as witness, 600.
not liable to action, for act done injudicial capacity, 813.
may on his own motion interrogate witness and start points of law, 281.
may consult other than legal literature, 282.
may of his own motion take notice of law, 283.
of law of God, natural and revealed, 284.
of law of nations, 285.
of domestic law, 286.
JUDGMENTS AND JUDICIAL RECORDS.
Binding Effect of Judgments.
judgment on same subject matter binds, 758.
but only conclusively as to parties and privies, 760.
parties comprise all who when summoned are competent to come in
and take part in case, 763.
judgment need not be specially pleaded, 765.
against representative binds principal, 766.
infant barred by proceedings in his name, 767.
married woman not usually bound by judgment, 768.
judgment against predecessor binds successor, 769.
not so as to principal and surety, 770.
nor does judgment against executor bind heir, 771.
judgment against one joint contractor binds the other, 772.
but not so as to tort-feasors, 773.
chancery will not collaterally review judgments of courts of law, 774.
nor courts of law, decrees of chancery, 775.
criminal and civil prosecutions cannot thus control each other, 776.
military courts may make final rulings, 778.
variation of form of suit does not affect principal, 779.
nor does nominal variation of parties, 780.
judgment, to be a bar, must have been on the merits, 781.
purely technical judgment no bar; effect of demurrers, 782.
judgment by consent a bar, 783.
point once judicially settled cannot be impeached collaterally, 784.
parol evidence admissible to identify or to distinguish, 640, 785.
judgment not an estoppel when evidence is necessarily different, 786.
when evidence in second case is enough to have secured judgment in first,
then first judgment is a bar, 787.
party not jjrecluded from suing on claim which he does not present, 788.
defendant omitting to prove payment or other claim as a set-off, cannot
afterward sue for such payment, 789.
judgment on successive or recurring claims not exhaustive, 792.
not conclusive as to collateral points, 793.
590
INDEX.
JUDGMENTS AND JUDICIAL RECORDS — (conhVued).
judgments as to public rights admissible against strangers, 794.
When Judgment may be impeached.
judgment may be collaterally impeached for want of jurisdiction, 795.
so for fraud, 797.
but not for minor irregularities, 799.
Awards.
awards have the force of judgments, 800.
Judgments of Foreign and Sister States.
foreign judgments in personam are conclusive, 801.
but impeachable for want of jurisdiction or fraud, 803.
jurisdiction is presumed if proceedings are regular, 804.
such judgments do not merge debt, 805.
cannot be disputed collaterally, 806.
Confederate judgments, effect of, 807.
judgment of sister states under the federal Constitution are conclusive, 808.
but may be avoided on proof of fraud or non-jurisdiction, 809.
Administration, Probate, and Inquisition.
letters of administration not conclusive proof of death or other recitals,
810.
probate of will not conclusive, except as to matters expressly and intel-
ligently adjudicated, 811.
inquisition of lunacy only prima facie proof, 812.
Judgment as Protection to Judge.
judgment a conclusive protection to a judge, 813.
Judgments in rem.
admiralty judgments good against all the world, 814.
and so as to judgments in rem, 815.
scope of judgments in rem, 816.
decrees as to personal status not necessarily ubiquitous, 817.
judgments in rem do not bind in personam, 818.
Judgments viewed Evidentially.
averments of record of former suit admissible between same parties, 819.
records admissible evidentially against strangers, 820.
record admissible to prove link in title, 821.
other cases of admissibility, 822.
judgment admissible against strangers to prove its legal effect, 823.
to prove judgment as such, record must be complete, 824.
minutes of court admissible to prove action of court, 825.
docket entries not admissible when full record can be had, 826.
rule relaxed as to ancient records, 827.
for evidential purposes portions of record may be admitted, 828, 1107.
so may depositions and answers in chancery, 828 a.
so may bankrupt assignments, 829.
but such portions must be complete, 830.
verdict inadmissible without record, 831.
591
INDEX.
JUDGMENTS AND JUDICIAL 'RECO'RDS— (continued).
admissibility of part of record does not involve that of all, 832.
parts of ancient records may be received, 833.
officer's returns admissible, 833 a.
return of nulla bona admissible to prove insolvency, 834.
bills of exception and review proceedings admissible, 835.
Records as Admissions.
record may be received when involving admission of party against whom
it is offered, 836.
a, party may be bound by his admissions of record, 837.
pleadings may be received as admissions, 838.
but not as evidence as to third parties, 839.
a demurrer may be an admission, 840.
certificate of clerk admissible to prove facts within his range, 841.
Variation by Parol.
records cannot be varied by parol, 980.
record imports verity, 982.
but on application to court, record may be corrected by parol, 983.
for relief on ground of fraud, petition should be specific, 984.
fraudulent record may be collaterally impeached, 985.
when silent or ambiguous record may be explained by parol, 986.
town records subject to same rules, 987. ,
former judgment may be shown to relate to a particular case, 988.
nature of cause of action may be proved, 989.
so of hour of legal procedure, 990.
so of collateral incidents of records, 991.
JUDICIAL NOTICE.
General Rules.
court cannot take notice of evidential facts not in evidence, 276.
non-evidential facts may be judicially noticed, 277.
reason a coordinate factor with evidence, 278.
judge may on his own motion interrogate witness and start points of law,
281.
may consult other than legal literature, 282.
may of his own motion take notice of law, 283.
law of God, natural and revealed, 284.
law of nations, 285.
domestic law, 286.
Codes and their Proof.
federal laws not " foreign " to the states, nor state laws to the federal
courts, 287.
particular states foreign to each other, 288.
state laws may be proved from printed volume, 289.
court may determine whether statute has passed, 290.
judicial notice taken of laws of prior sovereign, 291.
private laws not noticed by court, 292.
592
INDEX.
JUDICIAL NOTICE — (continued).
distinction between public and private laws, 293.
court takes notice of mode of authenticating laws; and herein of legisla-
tive action generally, 295.
subsidiary systems noticed, 296.
equity, 296.
military, law, 297.
law merchant and maritime, 298.
ecclesiastical law, 299.
foreign law must be proved, 300.
proof must be by parol, 302.
experts admissible for this purpose, 305.
may verify books and authorities, 308.
foreign statutes may be proved by exemplification, 309.
printed volumes are prima, facie proof, 310.
judicial construction of one state is adopted by another, 311.
statute must be put in evidence, 312.
foreign elementary jurisprudence can be noticed, 313.
law presumed not to differ from lex fori, 314.
but not so as to local peculiarities, 315.
lex fori determines rules of evidence, 316.
Executive and Judicial Doctjmknts.
court takes notice of executive documents, 317.
public seal of state self-proving, 318.
so of seals of notaries, 320.
courts, 321.
handwriting of executive, 322.
existence of foreign sovereignties, 323.
judicial officers, and practice, 324.
proceedings in particular case, 325.
records of court, 326.
NOTOKIETT.
notoriety in Roman law, 327.
canon law, 328.
general characteristics of notoriety, 329.
of notoriety no proof need be offered, 330.
notorious customs need not be proved, 331.
Instances:
course of seasons, 332.
limitations of human life as to age, 333.
as to gestation, 334.
conclusions of science and political economy, 335.
ordinary psychological and physical laws, 336.
leading domestic political appointments, 337.
leading public events, 339.
leading features of geography, 340.
38 593
INDEX.
JUDICIAL PKOCEEDINGS, presumption in favor of, 1302.
patent defects cannot be thus supplied, 1304.
in error necessary facts will be presumed, 1305.
so in military courts, 1306.
so in keeping of records, 1307.
but jurisdiction of inferior courts is not presumed, 1308.
JURISDICTION of sovereign, extent of, judicially noticed, 317, 323, 337.
of legislature, when presumed, 1309.
of courts of justice, how far judicially noticed, 324.
when presumed, 1302.
want of, fatal to judgment, 795, 803.
if witness out of, his former testimony admissible, 178.
JURY, inspection by, a permissible mode of proof, 845-347.
may be taken to view the locus in quo, 345, 346.
when to exercise skill in comparison of hands, 714. See 602.
juryman may use his general knowledge in case before him, but if he
possess special knowledge, must be sworn and examined openly, 602.
may be examined as to what took place before jury, 601.
KINDRED (see Pedigree).
KNOWLEDGE, of party, when provable by collateral facts, 30.
burden of, as to facts within peculiar, as determining burden of proof,
367.
of law, such knowledge always presumed, 1240.
but not of contingent law, 1241.
of fact, 1243.
when provable by reputation of community, 252.
communis error facit jus, 1242.
LACHES, in omitting to claim alleged rights, presumption from, 1320 a.
LADING (see Bill of Lading).
LANDLORD, tenant cannot deny title of (see Estoppel), 1148.
admission by, how affecting tenant, 1159.
admission by tenant, not evidence against, 1161.
LANDMARKS, may be proved by tradition, 185.
LAND OFFICE BOOKS, when admissible, 641.
LATENT AMBIGUITY, meaning of term (see Parol Evidence), 957.
LAW, knowledge of, presumed, 1241.
LAW MERCHANT, judicially noticed, 298.
LAW OF GOD, judicially noticed, 284.
LAW OF NATIONS, judicially noticed, 285.
LAW OF THE ROAD, judicially noticed, 831.
LAWS AND THEIR PROOF. Domestic laws need no proof, 286.
federal laws not " foreign " to the states, nor state laws to the federal
courts, 287.
particular states foreign to each other, 288.
594
INDEX.
LAWS AND THEIR YROOF— (continued).
state laws may be proved from printed volume, 289.
court may determine whether statute has passed, 290.
judicial notice taken of laws of prior sovereign, 291.
private laws not noticed by court, 292.
distinction between public and private laws, 293.
court takes notice of mode of authenticating laws; and herein of legis-
lative action generally, 295.
subsidiary systems noticed, 296.
equity, 296.
military law, 297.
law merchant and maritime, 298.
ecclesiastical law, 299.
foreign law must be proved, 300.
proof must be by parol, 302.
experts admissible for this purpose, 305.
experts may verify books and authorities, 308.
foreign statutes may be proved by exemplification, 309.
printed volumes are prima facie proof, 310.
judicial construction of one state is adopted by another, 311.
statute must be put in evidence, 312.
foreign elementary jurisprudence can be noticed, 313.
foreign law presumed not to differ from lex fori, 314.
but not so as to local peculiarities, 316.
lex fori determines rules of evidence, 316.
LAWS OF NATURE, judicially noticed, 284.
constancy of, presumed, 1284.
LAWYER, admissible as expert (see Witnesses), 442.
communications to (see Privileged Communications), 576, 609.
LAWYERS, customs of, judicially noticed, 331.
LEADING QUESTION, practice as to (see Witnesses), 409, 504.
LEASE, how far provable by parol, 77.
under statute; parol evidence cannot prove leases of over three years,
854.
estates in land can be assigned only in writing, 856.
surrender by operation of law excepted, 858.
such surrender includes act by landlord and tenant inconsistent with ten-
ant's interest, 860.
mere cancellation of deed does not revest estate, 861.
assignments by operation of law excepted, 862.
in other respects writing is essential to transfer of interest in lands,
863.
though seal is not necessary, 865.
LEDGER (see Account Books).
LEGACY (see Wills).
LEGAL ADVISER (see Attorney).
595
INDEX.
LEGISLATIVE MEETINGS, proceedings can be proved by parol, 77.
proceedings, presumptions as to, 1309.
LEGISLATURE, practice of, is judicially noticed, 295.
acts of, cannot be varied by parol, 980 a, 1260.
presumptions favoring, 1309.
communications to, when privileged, 603.
joiu-nals of, when noticed by courts, 289-295.
acts of, when proving recitals, 637.
LEGITIMACY, presumptions respecting, 1298.
family recognition of, in cases of pedigree, 201-220.
provable by reputation, 208, 211, 212.
LETTER BOOK, secondary proof, 72, 133.
LETTERS, thirty years old need no proof, 703.
inferred to be written on day of date, 1312. See 978.
delivery to be inferred from mailing, 1323.
and at usual period, 1324.
post-mark prima _/acie proof, 1325.
delivery to servant is delivery to master, 1326.
presumption from ordinary habits of forwarding, 1327.
letters in answer to one mailed presumed to be genuine, 1328.
but not so as to telegrams, 1329.
presumption from habits of forwarding letters, 1330.
may constitute part of contract, 617.
may be admissions of indebtedness, 1125.
may be used in divorce proceedings to show relations of parties, 1220.
limitations on this rule, 978.
when made as part of compromise, not evidence, 1090.
when evidence as admissions, without putting in, or calling for production
of, those to which they were answers, 1127.
are suflScient to ^orm contract under statute of frauds (sde Statute of
Frauds), 872.
acquiescence in contents of, how far presumable from not answering,
1154.
presumption from possession of, 1127, 1154.
of co-conspirators when admissible against their fellows, 1205.
cannot be used to discredit witness, without previous cross-examination,
555.
witness may be cross-examined as to contents of, without producing them,
531.
written to eI party, no evidence of his sanity, 175, 1254.
ancestor's and deceased's, in matters of pedigree, 210.
handwriting may be studied by receiving, 708.
LEX FORI, rules of evidence are controlled by, 816.
presumptions as to, in respect to foreign law, 315.
LIBEL AND SLANDER, when witness may give opinion as to meaning of
words, 975.
596
INDEX.
LIBEL AND SLANDER — (conftnwei).
independent libels admissible to infer malice or design, 32.
evidence of character in, 53.
character and other facts may be proved in mitigation of damages, 53.
LICENSE, may be inferred from long enjoyment, 1356.
burden of proof as to, 368.
LICENSEE, cannot dispute title of licensor, 1149.
LIEN, of factors, when judicially noticed, 298, 331.
of bankers, judicially noticed, 298, 331.
part acceptance under statute of frauds, as extinguishing vendor's, 869-875.
LIFE, presumptions respecting, 1275, 1277.
presumption as to, when party has not been heard of for seven years, 1274,
1277.
inference as to survivorship, in common catastrophe, 1280.
LIMITATIONS, STATUTES OF, on what principle they rest, 1338.
payment presumed after twenty years, 1360.
such presumption distinguishable from extinction by limitation, 1361.
payment may be inferred from other facts, 1362.
presumption rebuttable, 1364.
receipts may be rebutted, 1365.
as to presumptions of title (see Presumptions), 1331-1359.
taking debts out of :
by acknowledgment by partner, 1195.
by part payment or payment of interest, 229, 1115.
LINKS OF RECORD may be supplied by presumption, 1354.
LINKS OF TITLE may be presumed where title is substantially good, and
there is long possession, 1347.
LIS MOTA, excludes declarations in matters of public interest and pedigree,
193, 213.
LLOYD'S LIST, underwriter may be presumed to be acquainted with, 675,
1243. 1
as to strangers, is inadmissible, 639.
LOCUS IN QUO, view of, when granted to jury, 345-348.
LOG-BOOKS, when admissible, 648.
LOGIC, its importance in settling value of evidence, 1-10, 20-29, 1220-1230.
to be resorted to in order to determine relevancy, 22.
and so as to the weight of presumptions, 1226 ei seq.
LOSS of document, how proved, 142.
of ship, when presumed, 1283.
LOST DOCUMENT, may be proved by parol, 129, 150.
custodian should be called, 144.
place of probable custody should be searched, 147.
probate of lost will, when granted, 138.
so as to records, 133.
LOTTERY, character of, judicially noticed, 335.
LOVE OF LIFE, presumption of, 1247.
597
INDEX.
LUNACY (see Insanity).
inquisition Qf, effect of, 403, 812, 1254.
foreign inquisition of, 817.
MADNESS (see Insanity).
MALADY, symptoms of, declaration as to, admissible, 268, 269.
MALICE, a presumption of fact, 1261.
MANDAMUS, to inspect documents, when granted, 745.
MAPS AND CHARTS admissible to prove reputation as to boundaries, 668.
to prove ancient possession, 194.
and so as against parties and privies, 670.
MARITIME LAW, judicially noticed, 298.
MARK (see Handioriting).
testator may have signed will under statute of frauds by, 889.
signature by, may be identified, 696, 700.
MARKET value may be proved by persons familiar with (see Value), 446.
MARKS on clothes provable by parol, 81.
MARRIAGE, de facto, presumed valid and regular, 1297.
when presumed from cohabitation, and habit and repute, 83, 84, 1297.
when provable by reputation, 208. See 83, 84.
provable by parol, though registered, 83, 84.
provable by admission, 1097.,
when presumed regular, 1297.
legitimacy presumed from, 1298.
parties may be estopped from denying, 1081, 1151.
infants presumed incapable of, 1271.
opinion of witness to be taken as to whether parties were attached, 512, 513.
in criminal prosecutions, first wife incompetent to prove bigamy, 426.
in suit for divorce, when parties competent witnesses, 431-433.
testimony to be carefully weighed, 433.
cannot be compelled to answer questions as to adultery, 425.
parish registers of, how proved, 649-660.
other registries or records of (see Registries), 653-660.
MARRIAGE SETTLEMENTS, must be in writing, 882.
MARRIED WOMAN (see Husbatid and Wife), presumption as to marital
supremacy of, 1256.
husband's declarations may be received against wife, 1214.
wife's admissions may be received when entitled to act juridically, 1216.
her admissions may bind her husband, 1217.
may bind her trustees, 1218.
representatives, 1219.
admissions of adultery closely scrutinized, 1220,
not usually bound by judgment, 768.
acknowledgment of deed by, how proved, 1052, 1053.
when her admissions bind, 1216-1220.
in housekeeping is inferred to be husband's agent, 1257.
698
INDEX.
MASTER, how affected by servant's admissions, 1181.
liability of in culpa in eligendo, 48, 56.
effect of judgment against, as against servant, 823.
MEANING of words, courts may judicially notice, 281.
words must be interpreted in their primary, when, 972.
when to be determined by judge, 966-972.
MEASUREMENT, opinion admissible as to, 512.
parol evidence receivable as to, 947.
MEASURES AND WEIGHTS, judicially noticed, 331-335.
MECHANICS, admissible as experts, 444.
MEDICAL MAN, not privileged as to professional communications, 606.
is admissible as an expert (see Experts), 441.
may refer to medical books, 441, 666, 667.
MEETINGS of boards, when provable by parol, 69, 77.
admissibility of minutes of (see Towns), 641.
MEMORANDUM, when may be used to refresh memory (see Memory), 517-
526.
may admit debt, 1129.
of contract excludes parol evidence, 920-925.
when necessary by statute of frauds (see Statute of Frauds).
MEMORIAL of registered conveyance, when evidence, 112.
MEMORY, defective as affecting credibility (see Witnesses), 410.
witness may refresh by memoranda, 516, 531.
such memoranda are inadmissible if unnecessary, 517.
not fatal that witness has no recollection independent of notes, 518.
not necessary that notes should be independently admissible, 519.
memoranda admissible if primary and relevant^ 520.
notes must be primary, 521.
not necessary that writing should be by witness, 522.
inadmissible if subsequently concocted, 523.
depositions may be used to refresh the memory, 524.
opposing party is not entitled to inspect notes which fail to refresh mem-
ory, 525.
opposing party may put the whole notes in evidence if used, 526.
hearsay admissible for this purpose, 257.
expert may refresh by books, 441, 666, 667.
leading question allowed, when suggestion necessary to refresh, 501.
MERCANTILE CUSTOMS, judicially noticed, 331.
MERCHANT, entries by, in his books, when evidence (see Shop-books), 678-
685.
admissible as expert, 446.
MERGER, foreign judgment does not merge cause of action, 805.
MERITS, judgment not on, inadmissible, 781.
MIDWIFE, entry of time of birth, admissible, 226.
MILITARY COURTS, judgments of, 778.
presumptions favoring, 1306.
599
INDEX.
MIND, condition of, may be proved by patient's declarations, 269.
MINERALS, presumption as to ownership, 1344.
MINUTES, of court, how far admissible, 825, 826.
when docket entries may be received, if practice not to draw up formal
record, 825, 826.
of proceedings of meetings, admissibility of, 663.
MISREPRESENTATION, when efiective as an estoppel (see Admissions),
1087, 1150.
MISTAKE, how far weakening extra-judicial admissions made by (see Ad-
missions), 1078, 1080, 1088.
how far judicial admissions, 1110-1117.
when in contract how far reformable, 1021, 1028.
of date in deed or will may be corrected by parol evidence, 977.
of fact, how far ground for relief, 938, 977, 1021, 1028.
of law, how far ground for relief, 1029.
of form, how far subject to correction, 1030.
MITIGATION OF DAMAGES, character when relevant to (see Rele-
vancy), 50-56.
MONEY PAID INTO COURT (see Payment into Court), 1114.
MONEY, PUBLIC, when judicially noticed, 335.
MONTH, meaning of the word (see Time), 961 a, 966.
may be interpreted by evidence of usage, 961 a.
when judicially noticed, 835.
MONUMENTS (see Boundaries, Inscriptions).
MORTGAGE, equitable, not within statute of fi:auds, 903.
may be proved by parol, 1031.
may be attached for fraud, 1056.
MOTIVES, when collateral facts may be received to prove, 31-35.
character of is a presumption of fact, 1261.
party may be examined as to, 482, 508, 955.
of witness, how far relevant, 545.
answers of witnes? as to, how far rebuttable, 561.
MUNICIPAL CORPORATIONS (see Corporations).
MUNICIPAL ORDINANCES, when judicially noticed, 293.
corporations, proceedings of presumed regular (see Towns), 1310.
MUTABILITY, presumption against, 1284.
MUTILATED DOCUMENTS evidence, when ancient, coming from proper
custody, 631.
mutilation, when fatal, 627-632.
MUTUALITY, necessary in estoppels, 1085-1143.
NAME, identity of, raises inference of identity of person, 739 a, 1273.
habit of mistake as to provable by parol, 997-999.
NARRATIVES of the past cannot be admitted as hearsay, 255, 265>
1180.
NATIONS, LAW OF, judicially noticed, 285.
600
INDEX.
NATURAL CONSEQUENCES inferred to be intended, 1258.
NATURAL LAWS, judicially noticed, 284.
NATURALIZATION, certificate of, inadmissible against strangers, 176.
NATURE, constancy of presumed, 1293.
NAVIGATION LAWS, ' judicially noticed, 285.
NEGATIVE (see Burden of Proof), 356.
NEGATIVE TESTIMONY, weight of, 415.
NEGLIGENCE, burden of proof in (see Burden of Proof), 359.
in suits for how far evidence of collateral facts admissible, 40-44.
opinion as to inadmissible (see Experts), 509.
may estop (see Estoppel), 1081, 1155.
judgment against master, when evidence against servant, 823.
NEGLIGENCES, when similar can be put in evidence, 40, 41.
NEGOTIABLE PAPER not susceptible of parol variation, 1058.
blank indorsement may be explained, 1059.
relations of parties with notice may be varied by parol, and so may con-
sideration, 1060.
real parties may be brought out by parol, 1061.
ambiguities in such paper may be explained, 1062.
reception of, a presumption of extinguishing of debt, 1362.
usage as affecting (see Usage), 958-971.
effect of alterations of (see Alterations) , 626.
protests of (see Notary), 123, 320.
how affected by declarations of prior holder, 1163 a.
is an admission of indebtedness, 1128.
regularity in negotiation of paper presumed, 1301.
ownership of presumed from possession, 1336.
NEGOTIATION (see Compromise).
NEWSPAPER (see Gazette), 671, 675.
contents of cannot be proved by parol, 61.
NOISES and sounds, provable by hearsay, 254, 268.
NOLO CONTENDERE, effect of plea of, 783.
NON-ACCESS, when proof of, to rebut legitimacy, 1298-1300.
husband and wife incompetent to prove, 608.
NON-PRODUCTION of evidence, inference from, 1266.
NONSUIT, does not operate as a bar, 781.
NORTHAMPTON TABLES, when admissible, 39, 667, 1126.
NOTARIAL COPY, excludes parol proof, 90.
NOTARIAL INSTRUMENTS, how proved, 123.
NOTARY, certificate of, 123.
seal of judicially noticed, 320.
NOTE (see Negotiable Paper), bought and sold (see Bought and Sold
Notes).
judge's notes (see Judge).
to refresh memory (see Memory, Statute of Frauds).
NOTES, admissible to refresh memory (see Memory), 517-526.
601
INDEX.
NOTICE (see Judicial Notice), of gazette or newspaper, admissibility and
effect of, 671-675.
to produce (see Notice to Produce).
oral, may be proved, though also written, 77.
NOTICE TO PRODUCE, is necessary, when document is in hands of oppo-
site party, 152.
after refusal, secondary evidence can be given, 153.
notice must be timely, 155.
notice to produce does not make a paper evidence, 156.
party refusing to produce is bound by his refusal, 157.
after paper is produced opposite side cannot put in secondary proof,
158.
notice not necessary for document on which suit is brought, 159.
nor where party is charged with fraudulently obtaining or withholding
document, 160.
nor of documents admitted to be lost, 161.
nor of notice to produce, 162.
collateral facts as to instrument may be proved without notice, 163.
NOTORIETY.
in Roman law, 327.
canon law, 328.
general characteristics of notoriety, 329.
of notoriety no proof need be offered, 330.
notorious customs need not be proved, 331.
Instances : —
course of seasons, 332.
limitations of human life as to age, 333.
as to gestation, 334.
conclusions of science and political economy, 335.
ordinary psychological and physical laws, 336.
leading domestic political appointments, 337.
leading public events, 339.
leading features of geography, 340.
NUISANCE, effect of judgment as to, 792.
NULLA BONA, return of, admissible to prove insolvency, 834.
NUL TIEL RECORD, on plea of, practice as to, 765-785.
NUMBER OP WITNESSES, when more than one necessary, 414.
to establish a custom or usage, 964.
in divorce cases, 414.
in cases of perjury, 414.
to rebut an answer in chancery, 414, 490.
to establish promise of a deceased person, 414, 466.
court has discretion as to calling in corroboration, 505, 5 71.
corroboration of accomplices, 414.
of attesting witnesses to verify particular documents (see Attesting Wit-
nesses).
602
INDEX.
OATH AND ITS INCIDENTS.
Oath is an appeal to a higher sanction, 386.
■witness is to be sworn by the form he deems most obligatory, 387.
aflBrmation may be substituted for oath, 388.
OCCUPATION may be proved by parol, 78.
presumed continuance of, 1286.
OCCUPIER, declarations by, 1156-1160.
OFFICE, acting in, when admission of appointment, 78, 1081, 1315.
recognition of official character of others may estop from disputing such
character, 739 a, 1153, 1315-1317.
acting in presumes appointment to, 1315.
regularity presumed, from course of business in, 1318.
entries and declarations in course of, when evidence, 238-251.
OFFICE COPY (see Copy).
OFFICER, when recognized, the official appointment of, need not be pro-
duced, 78, 1081, 1153, 1315.
admissions by, when evidence against constituent, 1209.
presumed to be regularly appointed, 1315.
admitting official character of, admits title, 739 a, 1153, 1315-1317.
OFFICERS, deceased, business entries by, admissible, 238-242.
OFFICIAL ACTS, when privileged, 603-605.
presumed to be regular, 1318.
OFFICIAL CHARACTER, when admitted, 1153.
OLD WRITINGS (see Ancient Writings).
OMNIA RITE ESSE ACTA, presumption as to (see Presumptions), 1297,
1330.
ONUS PROBANDI (%q^ Burden of Proof ; Presumptions).
OPERATION OF LAW, surrender of lease by (see Statute of Frauds), 858.
OPINION of witness, when admissible (see Witnesses), 508-515.
of experts, when admissible (see Experts), 440.
of witnesses as to libel admissible, 975.
ORAL PROOF, classification of, 170.
ORDER OF PROOF (see Burden of Proof).
ORDERING WITNESSES OUT OF COURT (see Witnesses), 491.
OWNER, of land, admissions of, when admissible against privies, 1156-1163.
missing links of title, when presumed, 1352-1356.
estopped by not interfering while stranger sells property, 1136-1143.
OWNERSHIP, presumptions as to (see Presumptions), 1331, 1356.
PAPERS (see Judgments and Records, Spoliation, Writings).
non-accessible can be proved by parol, 130, 131.
PARDON, how proved, 63.
how far, renders compulsory on witness to answer criminating questions,
540.
PARENTS, not permitted to bastardize their issue, 608,
not privileged as witnesses against their children, 607.
603
INDEX.
PARISH REGISTERS, are official documents, 649-657.
how provable, 657, 658.
proper custody of, 649.
PARLIAMENT (see Legislature).
PAROL EVIDENCE, INADMISSIBLE TO PROVE CONTENTS OP
WRITINGS.
Rule applies to evidential as well as to dispositive documents, 61.
record facts cannot be proved by parol, 63.
otherwise as to incidents collateral to records, 64.
of administrative records parol evidence is admissible, 65.
probate of will cannot be proved by parol, 66.
administration must be proved by record, 67.
parol evidence not admissible on cross-examination, 68.
statutory designation of writings not necessarily exclusive, 69.
primary means immediate, 70.
general testis not authority but immediateness, 71.
brokers' books are primary in respect to bought and sold notes, 76.
of telegrams original must be produced, 76.
Exceptions to Rule.
rule does not apply where parol evidence is as primary as written, 77.
so where the party charged admits the contents of the document, 79.
summaries of voluminous documents can be received, 80.
so of parol evidence of things fleeting and unproducible, 81.
so of documents which cannot be brought into court, 82.
statute may require marriage to be proved by record, 83.
by private international law marriage may be proved by parol, 84.
in charges of penal marriage strict proof is required, 85.
PAROL EVIDENCE, INADMISSIBLE TO VARY WRITINGS.
Such evidence cannot vary documents as between parties, 920.
new ingredients cannot be thus added, 921.
dispositive documents may be varied by parol as to strangers, 923.
whole document must be taken together, 924.
written entries are of more weight than printed, 925.
informal memoranda are excepted from rule, 926.
parol evidence admissible to show that document was not executed, or
was only conditional, 927.
and so to show that it was conditioned on a non-performed contingency,
928.
want of due delivery, or of, contingent delivery, may be proved by parol,
930.
fraud or duress in execution may be shown by parol, and so of insanity,
931.
but complainant must have a strong case, 932.
so as to concurrent mistake, 933.
so of illegality, 935.
between parties intent cannot be proved to alter written meaning, 936.-
604
INDEX.
PAROL EVIDENCE, INADMISSIBLE, ETC. — (continued).
otherwise as to ambiguous terms, 937.
declarations of intent need not have been contemporaneous, 938.
evidence admissible to bring out true meaning, 939.
for this purpose extrinsic circumstances may be shown, 940.
acts admissible for the same purpose, 941.
ambiguous descriptions of property may be explained, 942.
erroneous particulars may be rejected as surplusage, 945.
ambiguity as to extrinsic objects may be so explained, 946.
parol evidence admissible to prove " dollar " means Confederate dollar,
948.
parol evidence admissible to identify parties, 949.
to enable undisclosed principal to sue or be sued, he may be proved by
parol, 950.
but person signing as principal cannot set up that he was agent, 951.
suretyship on writing may be shown by parol, 952.
other cases of distinction and identification, 953.
evidence of writer's use of language admissible to solve ambiguities, 954.
party may be examined as to intent or understanding, 955.
patent ambiguities cannot be explained by parol, 956.
" patent "is " subjective," and "latent" "objective," 957.
usage cannot be proved to vary dispositive writings, 958.
otherwise in case of ambiguities, 961.
usage is to be brought home to the party to whom it is imputed, 962.
may be proved by one witness, 964.
usage is to be proved to the jury, and must be reasonable and not con-
flicting with lex fori, 965.
when no proof exists of usage, meaning is for court, 966.
power of agent may be construed by usage, 967.
usage received to explain broker's memoranda, 968.
customary incidents may be annexed to contract, 968.
course of business admissible in ambiguous oases, 971.
opinion of expert inadmissible as to construction of document; but other-
wise to decipher and interpret, 972.
parol evidence admissible to rebut an equity, 973.
opinion of witnesses as to libel admissible, 975.
dates not necessarily part of contract, 976.
dates presumed to be true, but may be varied by parol, 977.
exception to this rule, 978.
time may be inferred from circumstances, 979.
Special Rules as to Recokds, Statutes, and Charters.
records cannot be varied by parol, 980.
and so of statutes and charters, 980 a.
otherwise as to acknowledgment of sheriffs' deeds, 981.
record imports verity, 982.
but on application to court, record may be corrected by parol, 983.
605
INDEX.
PAEOL EVIDENCE, INADMISSIBLE, ETC. — (continued).
for relief on ground of fraud, petition should be specific, 984.
fraudulent record may be collaterally impeached, 985.
when silent or ambiguous record may be explained by parol, 785, 986.
town records subject to same rules, 987.
former judgment may be shown to relate to a particular case, 988.
nature of cause of action may be proved, 989.
so of hour of legal procedure, 990.
so of collateral incidents of records, 991.
Special Rules as to Wills.
wiUs cannot be varied by parol, 992.
intent must be drawn from writing, 992.
when primary meaning is inapplicable to any ascertainable object, evi-
dence of secondary meaning is admissible, 996.
when terms are applicable to several objects, evidence admissible to dis-
tinguish, 997.
in ambiguities, all the surroundings, family, and habits of the testator
may be proved, 998.
all the extrinsic facts are to be considered, 999.
when description is only partly applicable to each of several objects, then
declarations of intent are inadmissible, 1001.
evidence admissible as to other ambiguities, 1002.
erroneous surplusage may be reiected,'1004.
patent ambiguities cannot be resolved by parol, 1006.
ademption of legacy may be proved by parol, 1007.
parol proof of mistake of testator inadmissible, 1008.
fraud and undue influence may be so proved, 1009.
testator's declarations primarily inadmissible to prove fraud or compul-
sion, 1010.
but admissible to prove mental condition, 1011.
parol evidence inadmissible to sustain will when attacked, 1012.
probate of will only ^rmd facie proof, 1013.
Special Rules as to Contracts.
prior conference merged in written contract, 1014.
parol may prove contract partly oral, 1015.
oral acceptance of written contract may be so proved, 1016.
rescission of one contract and substitution of another may be so proved,
1017.
exception at law as to writings under seal, 1018.
parol evidence admissible to reform a contract on ground of fraud, 1019.
so as to concurrent mistake, 1021.
but not ordinarily to contradict document, 1022.
reformation must be specially asked, 1023.
under statute of frauds parol contract cannot be substituted for written,
1025.
collateral extension of contract may be proved by parol, 1026.
606
INDEX.
PAKOL EVIDENCE, INADMISSIBLE, ETC. — (continued).
parol evidence inadmissible to prove unilateral mistake of fact, 1028.
and so of mistake of law, 1029.
obvious mistake of form may be proved by parol, 1030.
conveyance in fee may be shown to be a mortgage, 1031.
but evidence must be plain and strong, 1033.
admission of sucb evidence does not conflict with statute of frauds, 1034.
resulting trust may be proved by parol, 1035.
so of other trusts, 1038.
particular recitals may estop, 1039.
otherwise as to general recitals, 1040.
recitals do not bind third parties, 1041.
recitals of purchase money open to dispute, 1042.
consideration may be proved or disproved by parol, 1044.
seal imports consideration, but may be impeached on proof of fraud or
mistake, 1045.
consideration in contract cannot prima facie be disputed by those claim-
ing under it, though other consideration may be .proved in rebuttal of
fraud, 1046.
when fraud is alleged, stranger may disprove consideration, 1047.
and so may bond fide purchasers and judgment vendees, 1049.
Special Kules as to Deeds.
deeds not open to variation by parol proof, 1050.
acknowledgment may be disputed by parol, 1052. ,
between parties, deeds may be varied on proof of ambiguity and fraud,
1054.
deeds may be attacked by hona fide purchasers, and judgment vendees,
1055.
and so as to mortgages, 1056.
deed may be shown to be in trust, 1057 (as to Recitals, see 1039-
1042).
Special Rules as to Negotiable Papek.
negotiable paper not susceptible of parol variation, 1058.
blank indorsements may be explained, 1059.
relations of parties with notice may be varied by parol, and so may con-
sideration, 1060.
real parties may be brought out by parol, 1061.
ambiguities in such paper may be explained, 1062.
Special Rules as to other Instruments.
releases cannot be contradicted by parol, 1063.
receipts can be so contradicted, 1064.
exception as to insurance receipts, 1065.
receipts may be estoppels as to third parties, 1066.
bonds may be shown to be conditioned on contingencies, 1067.
subsci;iptions cannot be modified as to third parties by parol, 1068.
bills of lading are open to explanation, 1070.
607
INDEX.
PART-ACCEPTANCE, meaning of (see Statute of Frauds), 875.
PART-OWNER, admission by, 1192-1200.
PART-PAYMENT, when taking debt out of statute of limitations, 228-230,
1135.
PARTICEPS CRIMINIS, requires corroboration, 414.
PARTIES, by old Roman law conscience of parties could be proved, 457.
by later practice examination of parties was permitted, 460.
importance of such testimony, 461.
oaths by parties have obligatory as well as evidential force, 462.
statutes removing disability not expos facto, 463.
statutes to be liberally construed, 464.
cover depositions, 465.
exception when other contracting party is deceased, 466.
based on equity practice, 467.
incompetency in such case restrained to communications with de-
ceased, 468.
does not extend to contracts not exclusively with deceased, 469.
does not exclude intervening interests, 470.
does not exclude executor from testifying in his own behalf, 471.
surviving partner against estate, 472.
includes real but not technical parties, 473.
does not relate to transactions after deceased's death, 474.
does not extend to torts, 475.
does not make incompetent witnesses previously competent, 476.
does not exclude testimony of parties taken before death, 477.
statutes do not touch common law privilege of husband and wife, 478.
or of attorney, 479.
are subject to the ordinary limitation of witnesses, 480.
may be cross-examined to the same extent, 481.
may be examined as to his motives, 482, 508, 955.
cannot avoid relevant questions on the ground of self -crimination, 483.
may be contradicted on material points, 484.
may be reexamined, 485.
presumption against party for not testifying, 486.
two witnesses not necessary to overcome party's testimony, 487.
party is bound by his own admissions on the stand, 488.
under statutes one party may call the other as witness, 489.
where party is examined on interrogatories equity practice is followed,
490.
party's testimony in another case may be used against him, 1120.
admissions of nominal party cannot prejudice real party, 1207.
PARTNERS, fact of partnership provable by acts of, without producing deed,
78.
presumption as to continuance of partnership, 1284.
dissolution of, how far provable by newspaper, 673.
when books kept by, evidence against other partners, 1132.
608
INDEX.
PARTJSTERS — (continued).
persons jointly interested may bind each other by admissions, 1192.
so of partners, 1194.
as to acknowledgment to take debt out of statute, 1195.
such power ceases at dissolution of connection, 1196.
so as to joint contractors, 1197.
persons interested, but not parties, may affect suit by admissions, 1198.
but mere community of interest does not create such liability, 1199.
declarations of declarant cannot establish against others his interest with
them, 1200.
authority terminates with relationship, 1201.
admissions in fraud of associates may be rebutted, 1202.
self-serving statements of associates inadmissible, 1203.
in torts, co-defendant's admissions not to be received against the others,
unless concert is proved, 1204.
but where conspiracy is proved admissions of co-conspirators are re-
ceivable, 1205.
PARTNERSHIP, presumption of continuance of, 1284.
PARTNERSHIP BOOKS, admissible against partners, 1132.
PARTY (see Parties).
PASS-BOOK, entries in, how far admissible against bankers, 1131.
PATENT AMBIGUITIES, cannot be explained by parol, 956, 1006.'
" patent " is " subjective," and " latent " " objective," 957.
PAYMENT, presumed after twenty years, 1360.
such presumption distinguishable from extinction by limitation, 1361.
may be inferred from other facts, 1362.
presumption rebuttable, 1364.
receipts may be rebutted, 1064, 1130, 1365.
of interest or part payment of capital, how far taking case out of stat-
ute of limitations, 1135.
may be proved by parol, though receipt taken, 77.
PAYMENT INTO COURT, how far an admission (see Admissions),
1114.
PEACE, offers made to purchase, when admissible, 1090.
PEDIGREE, declarations admissible as to, 201.
relationship of declarants necessary to admissibility, 202.
pedigree may be proved by reputation, 205.
statements of deceased relatives inadmissible, but are to be scrutinized
as to motive, 207.
such declarations may extend to facts of birth, death, and marriage, 208.
writings of deceased ancestor admissible for same purpose, 210.
and so may conduct, 211.
declarations may go to facts from which relationship may be inferred,
213.
must have been ante litem motam, 213.
declarant must be dead, 215.
VOL. II. 39 609
INDEX.
PEDIGREE — (continued).
must have been related to the family, 216.
dissolution of marriage connection by death does not exclude, 217.
relationship must be proved aliunde, 218.
ancient family records and monuments admissible for same purpose,
219.
so of inscriptions on tombstones and rings, 220.
so of pedigrees and armorial bearings, 221.
PENALTIES, questions exposing witness to (see Witnesses), 534.
documents involving witness as to, he is not compellable to produce,
751.
PENCIL, may make writing, 616.
PEKJURY, in cases based on, more than one witness is required to prove,
414.
PERPETUATING TESTIMONY, how depositions taken, 181.
PERSONALTY, what is, 866.
possession of, gives presumption as to ownership of, 1336.
PHOTOGRAPHERS admissible as experts, 720.
PHOTOGRAPHS, admissible to determine identity, 676.
to test writings, 720.
are secondary evidence, 91.
of lost document receivable, 133.
PHYSICAL PRESUMPTIONS (see Presumptions), 1271-1283.
PHYSICAL SCIENCE, laws of, when judicially noticed, 335, 336 b.
PHYSICIANS, admissible as experts, 441.
PICTURES AND DIAGRAMS, in cases of identity, admissible, 676.
and so of plans and diagrams, 677.
opinions as to admissible, 512.
PLACARDS, may be proved by parol, 82.
PLACE of litigated act may be inspected, 345-347.
of birth, or death, how far provable by registry, 653-657.
when and how far provable by declarations of rela-
tions, 208.
PLAINTIFF (see Parties).
PLEAS AND PLEADINGS (see Judgments and Judicial Records).
admissions in, effect of (see ^cf missions), 837-841, 1110, 1121.
POLICE, records, when admissible, 639.
appointment of (see Officers).
POLICIES OF INSURANCE (see Insurance).
POLICY, public, excludes what evidence (see Privileged Communications,
Witnesses), 599-606.
PORTRAITS, family, admissible in cases of pedigree, 676.
POSSESSION, PRESUMPTIONS AS TO.
Presumption from possession, 1331.
as to realty, 1332.
such possession must be independent, 1334.
610
INDEX.
POSSESSION, PRESUMPTIONS AS 10 — (continued).
presumption as to personalty, 1336.
title to justify such presumptions must be substantial, 1357.
presumption is rebuttal, 1358.
POST, letters sent by, presumptions as to (see Letters), 1323-1330.
POST LITEM MOTAM (see Lis Mota), 193-213.
PRACTICE (see Trial).
PRAYER BOOKS, admissible to prove pedigree, 219.
PREDECESSOR IN TITLE.
Self-disserving admissions of predecessor in title may be received against
successor, 1156.
burdens and limitations descend with estate, 1157.
executors are so bound by their decedent, 1158.
landlord's admissions receivable against tenant, 1159.
tenantry and other burdens may be so proved, 1160.
but admissions of party holding a subordinate title do not aflect principal,
1161.
judgment debtor's admissions admissible against successor, 1162.
vendee or assignee of chattel bound by vendor's or assignor's admissions,
1163.
indorser's declarations inadmissible against an indorsee, 1163 a.
in suits against strangers, declarant, if living, must be produced, 1163 6.
bankrupt assignee bound by bankrupt's admissions, 1164.
admissions of predecessor in title cannot be received if made after title is
parted with, 1165.
exception in case of concurrence or fraud, 1166..
declarations of fraud cannot infect innocent vendee, 1167.
self-serving admissions of predecessor in title inadmissible, 1168.
declarations must be against declarant's particular interest, 1169.
PREJUDICE, offers made without, when admissible, 1090.
PRESCRIPTION, when presumed (see Presumptions), 1338-1358.
when provable by tradition, 1188.
PRESIDING JUDGE, who is, under federal statute, 100.
PRESS COPIES, when secondary, 72, 93, 133.
PRESUMPTIONS.
General Considerations.
a presumption of law is a postulate, a presumption of fact is an argument
from a fact to a fact, 1226.
prevalent classification of presumptions, 1227.
presumptions of law unknown to classical Romans, 1228.
such distinctions of scholastic origin, 1231.
scholastic derivation ot praesumtiones Juris et de jure, 1232.
gradual reduction of these presumptions, 1234.
in modern Roman law they are denied, 1235.
in our own law they are unnecessary, 1236.
presumptions of law as distinguishable from presumptions of fact, 1237.
611
INDEX.
PKESUMPTIONS — (continued).
presumptions of fact may by statute be made presumptions of law, 1238.
fallacy arising from ambiguity of terms " law," " legal," and " presump-
tions," 1239.
Psychological Presumptions.
of knowledge of law, 1240.
sueb knowledge always presumed, 1240.
but not of contingent law, 1241.
communis error facit jus, 1242.
of knowledge of fact, 1243.
of innocence, 1244.
in civil issues preponderance of proof decides, 1245.
of love of life, 1247.
of good faith, 1248.
an ambiguous document is to be construed in a way consistent with good
faith, 1249.
a contract is to be presumed to have been intended to have been made
under a valid law, 1250.
a genuine document is presumed to be true, 1251.
sanity is presumed until the contrary appear, 1252.
insanity once established is presumed to continue, 1253.
to be inferred from facts, 1254.
prudence in avoiding danger presumed, 1255.
supremacy of husband is presumed, 1256.
wife in housekeeping is inferred to be husband's agent, 1257.
of intent, 1258. ,
probable consequences presumed to have been intended, 1268.
business transactions intended to have the ordinary effect, 1239^
a new statute presumes a change in old law, 1260.
of malice, 1261.
malice a presumption of fact, 1261.
against spoliator, 126i. *
party tampering with evidence chargeable with consequences, 1265.
so of party holding back evidence, 1266.
escaping, 1269.
Physical Presumptions.
of incompetency through infancy.
infants incapable of matrimony, 1271.
crime, 1272.
how far competent in civil relations, 1272.
of identity, 1278.
presumption of from identity of name, 1273.
of death, 1274.
from lapse of years, 1274.
period of death to be inferred from facts of case, 1276.
fact of death presumed from other facts, 1277.
612
INDEX.
PRESUMPTIONS — (continued).
letters testamentary not collateral proof, 1278.
of death without issue, 1279.
of survivorship in common catastrophe, 1280.
of loss of ship from lapse of time, 1283.
Presumptions of Uniformity and Continuance.
burden on party seeking to prove change in existing conditions, 1284.
residence, 1285.
occupancy, 1286.
habit, 1287.
coverture, 1288.
solvency, 1289.
value is to be inferred from circumstances, 1290.
foreign law is presumed to be the same as our own, 1292.
constancy of nature presumed, 1293.
of physical sequences, 1294.
of animal habits, 1295.
of conduct of men in masses, 1296.
Presumptions of Kegulaeity.
marriage presumed to be regular, 1297.
legitimacy as a rule presumed, 1298.
regularity in negotiation of paper presumed, 1301.
regularity in judicial proceedings, 1302.
patent defects cannot be thus supplied, 1304.
in error necessary facts will be presumed, 1305.
so in military courts, 1306.
so in keeping of records, 1307.
but jurisdiction of inferior courts is not presumed, 1308.
legislative proceedings, 1309.
proceedings of corporation, 1310.
dates will be presumed to be correct, 1312.
formalities of document presumed, 1313.
officer and agent presumed to be regularly appointed, 1315.
regularity imputed to persons exercising profession, 1317.
acts of public officer presumed to be regular, 1318.
burden on party assailing public o£Bcer, 1319.
regularity of business men presumed, 1320.'
non-existence of a claim inferred from non-claimer, 1320 a.
agreement to pay inferred from reception of service, 1321.
and so from receipt of goods, 1322.
due delivery of letters presumed, 1323.
delivery to be inferred from mailing, 1323.
and at usual period, 1324.
post-mark prima facie proof, 1325.
delivery to servant is delivery to master, 1326.
presumption from ordinary habits of forwarding, 1327.
613
INDEX.
PRESUMPTIONS— (corefan«ed).
letter in answer to one mailed presumed to be genuine, 1328.
but not so as to telegrams, 1329.
presumption from habits of forwarding letters, 1330.
Presumptions as to Titlb.
presumptions from possession, 1331.
as to realty, 1332.
sucb possession must be independent, 1334.
as to personalty, 1336.
policy of the law favors presumptions from lapse of time, 1338.
soil of highway presumed to belong to adjacent proprietors, 1339.
so of hedges and walls, 1340.
soil under water presumed to belong to owner of land adjacent, 1341.
so of alluvion, 1342.
tree presumed to belong to owner of soil, 1343.
so of minerals, 1344.
easements to be presumed from unity of grant, 1346.
where title is substantially good, and there is long possession, missing
links will be presumed, 1347.
grants from sovereign will be so presumed, 1348.
grant of incorporeal hereditament presumed, after twenty years, 1349.
so of intermediate deeds and other procedure, 1352.
instances of links of title so supplied, 1353.
links of record may be thus supplied, 1354.
and so as to licenses, 1356.
title to justify such presumption must be substantial, 1357.
presumption is rebuttable, 1358.
burden is on party assailing documents thirty years old, 1359.
Presumptions as to Payment.
payment presumed after twenty years, 1360.
such presumption distinguishable from extinction by limitation, 1361.
payment may be inferred from other facts, 1362.
presumption rebuttable, 1364.
receipts may be rebutted, 1365.
PRIEST, when privileged as a witness, 596.
PRIMARINESS AS TO DOCUMENTS.
General Rules.
secondary evidence of documents is inadmissible, 60.
rule applies to evidential as well as to dispositive documents, 61.
record facts cannot be proved by parol, 63.
otherwise as to incidents collateral to records, 64.
of administrative records parol evidence is admissible, 65.
probate of will cannot be proved by parol, 66.
administration must be proved by record, 67.
parol evidence not admissible to prove writings on cross-examination, 68,
553. '
614
INDEX.
PRIMARINESS AS TO DOCUMENTS — (con(mued).
statutory designation of writings not necessarily exclusive, 69.
primary means immediate, 70.
general test is not authority but immediateness, 71.
no primary testimony is rejected because of faintness, 72.
written secondary evidence inadmissible, 73.
counterparts are receivable singly, but not so duplicates, 74.
brokers' books are primary in respect to bought and sold notes, 75.
of telegrams original must be produced, 76.
Exceptions to Rule.
rule does not apply where parol evidence is as primary as written, 77.
so where the party charged admits the contents of the document, 79.
summaries of voluminous documents can be received, 80.
so of parol evidence of things fleeting and unproducible, 81.
so of documents which cannot be brought into court, 82.
statute may require marriage to be proved by record, 83.
by private international law marriage may be proved by parol, 84.
in charges of penal marriage strict proof is required, 85.
Different Kind of Copies.
classification, 89.
secondary evidence of documents admits of degrees, 90.
photographic copies are secondary, 91.
• all printed impressions are of same grade, 92.
press copies are secondary, 93.
examined copies must be compared, 94.
exemplifications of record admissible as primary, 95.
in the United States made so by statute, 96.
statute does not exclude other proofs, 98.
only extends to court of record, 99.
statute must be strictly followed, 100.
office copy admitted when authorized bylaw, 104.
independently of statute, records may be received, 105.
original records receivable in same court, 106.
office copies admissible in same state, 107.
so of copies of records generally, 108.
seal of court essential to copy, 109.
exemplification of foreign records may be proved by seal or parol,
110.
of deeds, registry is admissible. 111.
ancient registries admissible without proof, 113.
certified copy of official register receivable, 114.
exemplification of recorded deeds admissible, 115.
when deeds are recorded in other states, exemplifications must be under
act of Congress, 118.
exemplifications of foreign wills or grants provable by certificate, 119.
certificates inadmissible by common law; otherwise by statute, 120.
615
INDEX.
PRIMARINESS AS TO DOCUMENTS — (coniinwecO-
notaries' certificates admissible, 123.
searches of deeds admissible, 126.
copies of public documents receivable, 127.
Sbcondaey Evidence may be keceived when Pkimaky is unpko-
DUCIBLE.
lost or destroyed documents may be proved by parol, 129.
so of papers out of power of party to produce, 130.
accidental destruction of paper does not forfeit this right, 132.
copies of unproducible documents receivable, 133.
so mky abstracts and summaries, 134.
so as to records, 135.
so as to depositions taken in same case, 137.
so as to wills, 138.
witness of lost document must be sufficiently acquainted with original,
140.
court must be satisfied that original is non-producible and would be evi-
dence if produced, 141.
loss may be inferentially proved, 142.
or by admission of opponent, 143.
probable custodian must be inquired of, 144.
search in proper places must be proved, 147.
degree of search to be proportioned to importance of document, 148.
peculiar stringency in case of negotiable paper, 149.
third person in whose hands is document must be subpoenaed to produce,
150.
party may prove loss by affidavit, 151.
So vthen Document is in Hands op Opposite Party.
notice to produce is necessary when document is in hands of opposite
party, 152.
after refusal secondary evidence can be given, 153.
notice must be timely, 155.
notice to produce does not make a paper evidence, 156.
party refusing to produce is bound by his refusal, 157.
after paper is produced opposite side cannot put in secondary proof,
158.
notice not necessary for document on which suit is brought, 159.
nor where party is charged with fraudulently obtaining or withholding
document, 160.
nor of documents admitted to be lost, 161.
nor of notice to produce, 162.
collateral facts as to instrument may be proved without notice, 163.
PRIMARINESS AS TO ORAL TESTIMONY.
Hearsay generally Inadmissible.
hearsay in its largest sense convertible with non-original, 170.
non-original evidence generally inadmissible, 171. See 71-72.
616
INDEX.
PRIMARINESS AS TO ORAL TESTIMONY — (conftnued).
objections to such evidence, 172.
acts may be hearsay, 173.
interpretation is not hearsay, 174.
testimony of non- witnesses not ordinarily receivable when reported by,
another, 175.
so of public, acts concerning strangers, 176. See 72.
Exceptions as to Deceased Witness.
evidence of deceased witness in former case admissible, 177.
so of witnesses out of jurisdiction, 178.
so of insane or sick witness, 17.9.
mode of proving evidence in such case, 180.
Exception as to Depositions in Perpetuam Memoriam.
practice as to such depositions, 181.
Exception as to Matters of General Interest and Ancient
Possession.
reputation of community admissible as to matters of public interest,
185.
facts of only personal interest cannot be so proved, 186.
insulated private rights cannot be sb affected, 187.
witnesses to such hearsay must be disinterested, 190.
declarations of deceased persons pointing out' boundaries admissible,
191.
declarations must be ante litem motam, 193.
such documents must come from proper custody, 194, 195.
contemporaneous possession need not have been proved, 199.
ancient documents receivable to prove ancient possession, 200.
verdicts and judgments receivable for same purpose, 200.
Exception as to Pedigree, Relationship, Birth, Marriage, and
Death.
declarations admissible as to pedigree, 201.
relationship of declarants necessary to admissibility, 202.
pedigree may be proved by reputation, 205.
statements of deceased relatives inadmissible, but are to be scrutinized
as to motive, 207.
such declarations may extend to facts of birth, death, and marriage,
208.
writings of deceased ancestor admissible for same purpose, 210.
and so may conduct, 211.
declarations may go to facts from which relationship may be inferred,
213.
must have been ante litem motam, 213.
declarant must be dead, 215.
must have been related to the family, 216.
dissolution of marriage connection by death does not exclude, 217.
relationship must be proved aliunde, 218.
617
INDEX.
PRIMAKINESS AS TO ORAL TESTIMONY— (continued).
ancient family records and monuments admissible for same purpose,
219.
so of inscriptions on tombstones and rings, 220.
so of pedigrees and armorial bearings, 221.
death may be proved by reputation, 223.
so may marriage, 224. See 205.
peculiarity in suits for adultery, 225.
ExcBPTiosr AS TO Self-disserving Declarations op Deceased Per-
sons.
such declarations receivable, 226.
no objection that such declarations are based on hearsay, 227.
declarations must be self-disserving, 228.
independent matters cannot be so proved, 231.
admissible though other evidence could be had, 232.
position of declarant must be proved aliunde, 233.
declaration must be brought home to declarant, 235.
statements in disparagement of title receivable against strangers, 237.
Exception as to Business Entries of Deceased Persons.
entries of deceased or non-procurable persons in the course of their busi-
ness admissible, 238. See 654, 668, 688.
entries must be original, 245.
must be contemporaneous and to the point, 246.
but cannot prove independent matter, 247.
so of surveyors' notes, 248.
so of notes of counsel and other oflScers, 249.
so of notaries' entries, 251.
Exception as to general Reputation -when such is Material.
admissible to bring home knowledge to a party, 252. See 35.
but inadmissible to prove facts, 253.
hearsay is admissible when hearsay is at issue, 254.
value so provable, 255.
and so as to character, 256.
Exception as to refreshing Memory of Witness.
for this purpose hearsay admissible, 257. See 516-525.
Exception as to Res Gestae.
res gestae admissible though hearsay, 258. *
coincident business declarations admissible, 262.
and so of declarations coincident with torts, 263.
what is done or exhibited at such a time may be proved, 264.
declarations inadmissible if there be opportunity for concoction, 265.
declarations inadmissible to explain inadmissible acts; nor are declara-
tions admissible without acts, 266.
inadmissible if the witness himself could be obtained, 267.
Exception as to Declarations concerning Party's own Health
AND State of Mind.
618
INDEX.
PRIMAEINESS AS TO ORAL TESTIMONY— (conitnued).
declarations of a party as to his own injuries admissible, 268.
so as to his condition of mind when such is at issue, 269.
PRINCIPAL (see Agent).
to enable undisclosed, to sue or be sued, he may be proved by parol, 950.
but person signing as principal cannot set up that he was agent, 951.
effect of judgment against, so far as concerns surety or deputy, 7.70,
823.
ratification by, of unauthorized act of agent, 1081, 1152.
admissions by, when inadmissible against surety, 1212.
PRINT, document partly in, how interpreted, 926.
PRINTED COPY is secondary to manuscript, 91. See 76.
PRINTED NAME, when sufficient signature, 873-889.
PRIVATE RIGHTS, not provable by hearsay, 186.
qualifications as to prescriptions, 1338-1346.
PRIVATE STATUTES, how proved, 292-294.
when admissible to prove recitals in, 636.
PRIVIES, how far bound by judgments (see Judgments), 758, 818.
admissions (see Admissions), 1156-1169.
PRIVILEGE, when witness may assert as to answering questions (see Wit-
nesses), 544, 553.
of witness, as to arrest (see Witnesses), 389.
of witness, as to liability to suit by third parties, 497.
PRIVILEGED COMMUNICATIONS between husband and wife (see Hus-
band and Wife), 427-433.
lawyer not permitted to disclose communications of client, 576.
not necessary that relationship should be formally instituted, 578.
nor that communications should be made during litigation, 579.
nor is privilege lost by termination of relationship, 580.
privilege includes scrivener and conveyancer, as well as general counsel,
581.
so as to lawyer's representatives, 582.
client cannot be compelled to disclose communications made by him to
his lawyer, 583.
privilege must be claimed in order to be applied, and may be waived, 584.
privilege applies to client's documents in lawyer's hands, 585.
privilege lost as to instruments parted with by lawyer, 586.
communications to be privileged must be made to party's exclusive ad-
viser, 687.
lawyer not privileged as to information received by him extra-profes-
sionally, 588. '
information received out of scope of professional duty not privileged, 589.
privilege does not extend to communications in view of. breaking the law,
590.
nor to testamentary communications, 691.
lawyer making himself attesting witness loses^privilege, 592.
619
INDEX.
PRIVILEGED CdMUVSlCATlOlSS — (continued).
business agents not lawyers are not privileged, 593.
communications between party and witnesses privileged, 594.
telegraphic communications not privileged, 595.
priests not privileged at common law as to confessional, 596.
drbiirators cannot be compelled to disclose the ground of their judg-
ments, 599.
nor can judges, 600.
noT jurors as to their deliberations, 601.
juror if knowing.facts must testify as witness, 602.
prosecuting attorney privileged as to confidential matter, 603.
state secrets are privileged, 604.
and consultations of legislature and executive, 605.
medical attendants not privileged, 606.
no privilege to ties of blood or friendship, 607.
parent cannot be examined as to access in cases involving legitimacy, 608.
PROBABILITY, the object of juridical investigation, 1-7.
PROBABLE CAUSE, in suit for malicious prosecution relevancy of evidence
as to, 54.
PROBABLE CONSEQUENCES presumed to have been intended, 1258.
PROBATE, what \i is, 811.
not conclusive, except as to matters expressly and intelligently adjudi-
cated, 811.
probate of will cannot be proved by parol, 66.
may be granted of lost will, 139.
PROCESS may be an admission, 1118.
PROCHEIN AMY, admissions by, 1208.
how far judgments against affect infant, 1208.
PROCLAMATIONS, when judicially noticed, 317.
how proved, 317.
admissibility of recitals in, 638.
PRODUCTION of document before trial (see Inspection), 742-756.
at trial (see Notice to Produce).
presumption from non-production of evidence, 1266.
PROFESSIONAL CONFIDENCE (see Privileged Communications).
PROFESSIONAL MAN, regularity imputed to, 1317.
presumptions respecting, from acting as such, 1151, 1317.
treatises, when evidence, 665, 666.
PROMISE, when to be in writing under statute of frauds (see Statute of
Frauds), 833, 878.
PROMISSORY NOTE (see Negotiable Paper). .
PROOF is the sufficient reason for a proposition, 1.
order of (see burden of Proof), 358-371.
when unnecessary (see Admissions, Judicial Notice, Presumption).
formal, to be distinguished from real, 2.
evidence is proof admitted on trial, 3.
620
INDEX.
PROOF — (continued).
object of evidence is juridical conviction, i.
technical, should be expressive of real, 5.
to be distinguished from demonstration, 7.
PROPERTY, presumption of, from possession, 1331.
PROSECUTOR, privileged as to state secrets, 604.
PROTECTION OF WITNESS, as to self-crimination (see Witnesses), 533.
as to arrest (see Arrest), 388.
PROTEST, of negotiable paper (see Negotiable Paper, Notary), 123, 125.
PRUDENCE, burden of proof as to, 1255.
may be proved inductively, 36.
PSYCHOLOGICAL LAWS, when judicially noticed, 336.
PSYCHOLOGICAL PRESUMPTIONS (see Presumptions), 1240, 1269.
PUBLIC ACTS inadmissible against strangers to prove private acts, 176.
PUBLICATION of former libels when admissible, 32.
PUBLIC DOCUMENTS.
Of what the Cocirts take Notice.
court takes notice of executive documents, 317.
public seal of state self-proving, 318.
so of seals of notaries, 320.
so of seals of courts, 321.
so of handwriting of executive, 322.
so of existence of foreign sovereignties, 323.
so of judicial officers, and practice, 324.
Judicial Records.
judgment on same subject matter binds, 758.
but only conclusively as to parties and privies, 760.
parties comprise all who when summoned are competent to come in
and take part in case, 763.
when judgments are estoppels (see Estoppel), 758, 794.
judgments inrem, see 814-818.
impeaching judgments, 795, 799.
foreign judgments in personam are conclusive, 801.
but impeachable for want of jurisdiction or fraud, 803.
jurisdiction is presumed if proceedings are regular, 804.
such judgments do not merge debt, 805.
cannot be disputed collaterally, 806.
Confederate judgments, effect of, 807.
judgments of sister states under the federal Constitution are conclusive,
808.
but may be avoided on proof of fraud or non-jurisdiction, 809.
averments of record of former suit admissible between same parties, 819.
records admissible evidentially against strangers, 820.
record admissible to prove link in title, 821.
other cases of admissibility, 822.
judgment admissible against strangers to prove its legal effect, 823.
621
INDEX.
PUBLIC DOCUMEiiTS— (continued).
to prove judgment as such, record must be complete, 824.
minutes of court admissible to prove action of court, 825.
docket entries not admissible wben full record can be had, 826.
rule relaxed as to ancient records, 827.
for evidential purposes portions of record may be admitted, 828.
so may depositions and answers in chancery, 828 a.
so may bankrupt assignments, 829.
but such portions must be complete, 830.
verdict inadmissible without record, 831.
admissibility of part of record does not involve that of all, 832.
parts of ancient records may be received, 833.
officer's returns admissible, 833 a.
return of nulla bona admissible to prove insolvency, 834.
bills of exception and review proceedings admissible, 835.
. Records as Admissions.
record may be received when involving admission of party against whom
it is offered, 836.
a party may be bound by his admissions of record, 837.
pleadings may be received as admissions, 838.
but not as evidence to third parties, 839.
a demurrer may be an admission, 840.
certificate o£ clerk admissible to prove facts within his range, 841.
Administration, Probate, and Inquisition.-
letters of administration not conclusive proof of death or other recitals,
810.
probate of will not conclusive, except as to matters expressly and intelli-
gently adjudicated, 811.
inquisition of lunacy only prima, facie proof, 812 a.
Awards.
awards have the force of judgments, 800.
Judgments or Foreign and Sister States, 801.
Statutes ; Legislative Journals ; Executive Documents.
public statutes prove their recitals, 635.
otherwise as to private statutes, 636.
[For proof of public and private statutes, see 289 et seq.J
journals of legislature proof as to recited facts, 637.
so of executive documents, 638.
NoN-JuDioiAL Registries and Records.
official registry admissible when statutory, 639.
so of records of public administrative officer, 640.
so of records of town meetings, 641.
a record includes its incidents, 642.
record must be of class authorized by law, 643.
it must be identified and be complete, 644.
it must indicate accuracy, 645.
622
NDEX.
PUBLIC DOCUMENTS— (conimuec?).
it must not be secondary, 646.
books and registries kept by public institutions admissible, 647.
log-book admissible under act of Congress, 648.
Records and Registries of Birth, Marriage, and Death.
parish records generally admissible, 649.
registries of marriage and death admissible when duly kept, 653.
so when kept by deceased persons in course of their duties, 654.
registry only proves facts which it was the duty of the writer to record,
655.
entries must be at first hand and prompt, 656.
certificate at common law inadmissible, 657.
and so of copies, 658.
family records admissible to prove family events, 690.
Books op History and Science ; Maps and Charts.
approved books of history and geography by deceased authors receivable,
664.
books of inductive science not usually admissible, 665.
otherwise as to books of exact science, 667.
maps and charts admissible to prove reputation as to boundaries, 668.
and so as against parties and privies, 670.
Gazettes and Newspapers.
gazette evidence of public official documents, 671.
newspapers admissible to impute notice, 672.
so to prove dissolution of partnership, 673.
but not generally for other purposes, 674.
knowledge of newspaper notice may be proved inferentially, 675.
when provable by copies (see Copies), 127.
PUBLIC HISTORIES, when admissible, 664.
PUBLIC INTEREST (see General Interest), hearsay admisssible in matters
of, 185, 200.
PUBLIC OFFICER, acting as such presumes appointment of, 78, 1081,
1315.
ordinarily commission need not be produced, 78, 1081, 1153, 1315.
admissions by, 1209.
acts presumed to be regular, 1318.
burden on party assailing, 1319.
PUBLIC FOLIC Y, excludes what evidence (see Primleged Communications),
596-606.
PUBLIC RIGHTS, when hearsay admissible as to (see Hearsay), 185-
191.
PUBLIC RUMOR, when proof of is admissible, 252-256.
PURCHASER, cannot ordinarily be prejudiced by admissions by vendor
after sale, 1165.
encouraged by owner to buy land may hold against owner, 1148.
cannot dispute vendor's title, 1149.
623
INDEX.
PUR CHASE R — {continued) .
when bound by judgment against vendor, 760.
when bound by admissions of vendor, 1156-1165.
when to be regarded as trustee for party paying, 1035-1038.
QUALITY, opinion as to, admissible, 512.
QUANTITY, opinion as to, admissible, 512.
QUESTION (see Witnesses).
RAILROAD COMPANIES, how far bound by agent's admissions, 1174-
1183.
in action against for fires, how far proof of other fires admissible, 42.
how far affected by tacit admissions of negligence, 1081.
inspection of books of (see Inspection), 746.
how far books of are evidence (see Corporation Boohs), 601, 1131.
RAILROAD TIME TABLE, may be proved by parol, 77.
READING OF DOCUMENT, duty of party as to, 1243.
when allowable to refresh his memory (see Memory).
REALTY, when ownership of is presumed, 1332.
REASON, coordinate with evidence, in constituting proof, 3-7, 278, 279,
1234, 1239.
REBUT AN EQUITY, parol evidence admissible to, 973.
RECALLING WITNESSES, discretionary power as to, 574.
RECEIPT, may be proved by parol, though there be written paper. 77.
may be varied by parol, and is only prima facie evidence of payment,
1064, 1130, 1365.
exception as to insurance receipts, 1065.
recital of in deed open to dispute, 1042.
of goods, when taking sale out of statute of frauds, 875.
of part payment, effect of, on statute of limitations, 229, 1115.
thirty years old, requires no proof, 703.
RECITALS, in deed, effect of (see Deeds), 1039-1042.
in public statutes and documents, 635, 638.
of purchase money, 1042.
in private acts, 636.
injudicial documents and records, 819-823.
in family deeds, as to pedigree, 210.
in deeds and leases, as to reputation, 194.
RECOGNITION of family as to marriage and pedigree, 207-212.
of agent by principal, 1081, 1151.
of official character of party by treating him as entitled thereto, 1153.
RECORDED DEEDS, exemplifications admissible, 115-118.
RECORDING ACTS, how far making books and exemplifications evidence,
111.
RECORDS (see Judgments and Judicial Records), 758-841.
registries, 639, 660.
624 ■
INDEX.
RECORDS — (continued).
of courts of justice are presumed regular, 1302.
when lost, may be proved by parol, 136, 137.
REFEREE, admissions of, bind principal, 1190.
REFORMING CONTRACTS, proceedings in relation to, 1019, 1023.
REFRESHING MEMORY of witness (see Memory), 516-526.
hearsay admissible for this purpose, 257.
REGISTRIES, public, 639, 660.
Municipal and Administrative.
official registry admissible when statutory, 639.
ancient, prove themselves, 113.
so of records of public administrative officer, 640.
so of records of town meetings, 641.
such record includes its incidents, 642.
record must be of class authorized by law, 643.
it must be identified and be complete, 644.
it must indicate accuracy, 645.
it must not be secondary, 646.
books and registries kept by public institutions admissible, 647.
log-book admissible under act of Congress, 648.
[For judicial records, see infra, 758.]
Registries of Birth, Marriage, and Death.
parish records generally admissible, 649.
registries of marriage and death admissible when duly kept, 653.
so when kept by deceased persons in course of their duties, 654.
registry only proves facts which it was the duty of the writer to record,
655.
entries must be at first hand and prompt, 656.
certificate at common law inadmissible, 657.
and so of copies, 658. ,
family records admissible to prove family events, 660.
REGULARITY, presumptions of,
marriage presumed to be regular, 1297.
legitimacy as a rule presumed, 1298.
regularity in negotiation of paper presumed, 1301.
judicial proceedings, 1302.
patent defects cannot be thus supplied, 1304.
in error necessary facts will be presumed, 1305.
so in military courts, 1306.
so in keeping of records, 1307.
but jurisdiction of inferior courts is not presumed, 1308.
legislative proceedings, 1309.
proceedings of corporation, 1310.
dates will be presumed to be correct, 1312.
formalities of document presumed, 1313.
officer and agent presumed to be regularly appointed, 1315.
VOL. 11. 40 • 625
INDEX
REGULARITY — (conlinuea).
regularity imputed to persons exercising profession, 1317.
acts of public officer presumed to be regular, 1318.
burden on party assailing public officer, 1319.
regularity of business men presumed, 1320.
non-existence of a claim inferred from non-claimer, 1320 a.
agreement to pay inferred from reception of service, 1321.
and so from receipt of goods, 1322.
due delivery of letters presumed, 1323.
delivery to be inferred from mailing, 1323.
and at usual period, 1324.
post-mark _prima /aa'e proof, 1325.
delivery to servant is delivery to master, 1326.
presumption from ordinary habits of forwarding, 1327.
letter in answer to one mailed presumed to be genuine, 1328.
but not so as to telegrams, 1329.
presumption from habits of forwarding letters, 1330.
RELATIONS, declarations of admissible in pedigree, 202.
RELATIONSHIP (see Pedigree).
RELEASE by nominal party, effect of, on real party, 1207.
releases cannot be contradicted by parol, 1063.
RELEVANCY is that which conduces to proof of pertinent hypothesis, 20.
whatever so conduces is relevant, 21.
process one of logic, applicable to all kinds of investigation, 22.
so in questions of identity, 24.
Mr. Stephen's theory of relevancy, 25.
criticism of this theory, 26.
conditions of an hypothesis, whose proof is relevant may be prior, con-
temporaneous, or subsequent, 27.
non-existence of such conditions is also relevant, 28.
collateral disconnected acts generally irrelevant, 29.
scienter may be proved inductively by collateral facts, SO.
so may intent in trespass, 31.
so in libels and slander, 32.
so in fraud, 33.
so in adultery, 34.
so may good faith, 35.
so may prudence and wisdom, 36.
so in questions of identity and alibi, 37.
system may be proved to rebut hypothesis of accident or casus, 38.
from one part similar qualities of another part may be inferred, 39, 268,
448, 1346.
so in questions of negligence, 40.
evidence of prior firings admissible against railroad for negligent firing, 42.
when system is proved, conditions of other members of the same system
may be proved, 44.
626
INDEX.
RELEVANCY — {continued).
ownership may be inferred from system, 45.
character not relevant in civil issue, 47.
■when character is at issue, general reputation can be proved, 48.
character is convertible with reputation, 49.
may be proved to increase or mitigate damages, 50.
in suits for seduction, bad character of plaintiff may be shown, 51.
so in suits for breach of promise, 52.
slander or libel, 53.
malicious prosecution, 54.
burden is on party assailing character, 55.
particular facts cannot be put in evidence, 56.
KELIGIOUS BELIEF, as afiFecting witnesses (see Witnesses), 396.
when witness can be compelled to answer questions as to, 396, 543.
REMAINDER MAN, not affected by admissions of tenant for life, 1161.
REMOTENESS, presumption neutralizes, 1226.
RENT, inferences from payment of, 1362-1364.
when cannot be proved by parol, 77, 78.
when not to be varied by contemporaneous oral agreement, 854-856.
REPLIES (see ^nsioers).
REPORTS of committees are hearsay as to strangers, 175.
of public officers, when admissible, 638, 639.
REPOSITORY (see Custody).
REPRESENTATIONS (see Admissions).
REPRESENTATIVE (see Agent, Executor, Trustee), admissions of, may
bind constituent, 1209.
inoperative before he is appointed, 1210.
and so after he leaves office, 1211.
REPUTATION, when admissible as to character of party (see Character).
of witness (see Character).
to prove birth, 208.
when provable by tradition, 187.
to prove marriage, 224.
except in cases of adultery, and in criminal issues, 225.
in issues of general interest (see General Interest), 185-194.
pedigree (see Pedigree), 201-225.
when evidence to bring home knowledge to a party, 252.
verdicts, judgments, &c., when admissible, 200.
of community, when admissible to explain state of mind, 255.
RESCINDING CONTRACT, evidence received as to, 1017.
RES GESTAE, what constitute (see Hearsay).
admissible though hearsay, 258, 1102.
coincident business declarations admissible, 262, 1170.
' and so of deolaartions coincident with torts, 263, 1174.
what is done or exhibited at such a time may be proved, 264, 1102.
declarations inadmissible if there be opportunity for concoction, 265, 1180.
627
INDEX.
RES GESTAE — (continued).
declarations inadmissible to explain inadmissible acts, nor are declara-
tions admissible without acts, 266.
inadmissible if the witness himself could be obtained, 267.
but narratives of the past to be excluded, 265, 1180.
witnesses may be examined as to, 544.
RESIDENCE presumed continuous, 1285.
RES INTER ALIOS ACTAE, inadmissible, 175, 760, 1041.
RES JUDICATA (see Judgments).
RESULTING TRUST (see Trusts), 1035.
RETURNS, by officers, when evidence, 833 a, 834.
REVOCATION of will, how effected (see Statute of Frauds), 892-896.
RIGHT OF COMMON, provable by tradition, 185.
RIGHT OF "WAY (see Way), 1346.
RIGHTS, what, provable by reputation (see Hearsay), 185-187.
RINGS, inscription on, evidence in pedigree, 220.
RITE ESSE ACTA, presumption as to (see Presumption), 1297-1330.
RIVER, presumption as to ownership of soil of, 1341.
ROAD, law of the, judicially noticed, 331.
presumptions as to, 1339.
RULES of courts, when judicially noticed, 324.
RUMOR, when admissible (see Hearsay, Reputation), 253, 254.
SALES OF GOODS must be evidenced by writing, under statute of frauds,
unless there be part payment, or earnest. Delivery and consideration
must appear, 869.
other material averments must be in writing, 870.
but may be inferred from several documents, 872.
place of signature immaterial, and initials may suffice, 873.
when main object is sale of goods, writing is necessary, 874.
acceptance and receipt of goods takes sale out of statute, 875.
acceptance by carrier or expressman is not acceptance by vendee, 876.
partial payment may take sale out of statute, 877.
SAILORS, admissible as experts, 444, 452.
SANITY prima facie presumed (see Insanity), 1252-1254.
opinions admissible respecting, 451.
letters to party inadmissible to prove, unless he has answered or acted on
them, 175.
effect of inquisition of lunacy as to, 812, 1254.
SCIENCE, experts may be examined as to questions of (see Experts), 443.
SCIENTER, party may be examined as to, 482, 508.
may be proved inductively, 30.
presumptions as to, 1241-1243.
SCIENTIFIC BOOKS, when admissible, 665-667.
SCIENTIFIC RESULTS, when judicially noticed, 333.
SCIENTIFIC WITNESSES (see Experts).
628
INDEX.
SCRIVENER, professional communications to, when privileged, 181.
SCROLL, when to be substituted for seals, 694.
SEA-SHORE, presumption as to ownership of, 1341, 1342.
SEAL OF COURT, essential to exemplification under act of Congress, 109.
SEALS, what judicially noticed, 318, 695.
what constitutes, 692. .
what is due sealing, 693.
when due sealing will be presumed, 1313.
impeaching of consideration ia relation to, 1045.
of corporations, 735.
SEAMEN, admissible as experts, 444, 452.
SEARCH, for writings, sufficiency of, 144.
what is requisite to admit secondary evidence (see Secondary Evidence),
129, 150.
for attesting witness, what sufficient, 726-728.
SEARCHES OF DEEDS, inadmissible, 126.
SEASONS, alternations of, judicially noticed, 334.
registry of, when admissible, 647.
SECONDARY EVIDENCE cannot be received while primary is attainable
by party (see Primariness) , 60-7^.
otherwise when parol evidence is as primary as written, 77.
where the party charged admits the contents of the document, 79.
summaries of voluminous documents can be received, 80.
so of parol evidence of things fleeting and unproducible, 81.
so of documents which cannot be brought into court, 82.
statute may require marriage to be proved by record, 83.
by private international law marriage may be proved by parol, 84.
in charges of penal marriage strict proof is required, 85.
Lost Instruments may be so proved.
lost or destroyed documents may be proved by parol, 129.
so of papers out of power of party to produce, 130.
accidental destruction of paper does not forfeit this right, 132.
copies of unproducible documents receivable, 133.
so may abstracts and summaries, 134.
so as to records, 135.
so as to depositions taken in same case, 137.
so as to wills, 138.
witness of lost document must be sufficiently acquainted with original
140.
court must be satisfied that original is non-producible and would be evi-
dence if produced, 141.
loss may be inferentially proved, 142.
or by admission of opponent, 143.
probable custodian must be inquired of, 144.
search in proper places must be proved, 147.
degree of search to be proportioned to importance of document, 148.
629
•INDEX.
SECONDARY EVIDENCE — (coniinuerf)-
peculiar stringency in case of negotiable paper, 149.
third person in whose hands is document must be subpoenaed to produce,
150.
party may prove loss by affidavit, 151.
So WHEN Document is in Hands of Opposite Party.
notice to produce is necessary when document is in hands of opposite
party, 152.
after refusal secondary evidence can be given, 153.
notice must be timely, 155.
notice to produce does not make a paper evidence, 156.
party refusing to produce is bound by his refusal, 157.
' after paper is produced opposite side cannot put in secondary proof,
158.
notice not necessary for document on which suit is brought, 159.
nor where party is charged with fraudulently obtaining or withholding
document, 160.
nor of documents admitted to be lost, 161.
nor of notice to produce, 162.
collateral facts as to instrument may be proved without notice, 163.
SECRETS OF STATE privileged, 604.
SEDUCTION, in issues of, when character or conduct of party seduced is
relevant, 51.
party seduced may be cross-examined as to prior improprieties, 51, 542.
SELLER is estopped from disputing sale, 1147.
SENTENCE (see Judgments).
SEPARATE examination of witnesses, practice as to, 491.
SERVANT, when binding master by warranty, 1085, 1170-1173.
admission by, when evidence against master (see Admissions), 1181.
when hiring of, is treated as for a year, 883.
SERVICE, of subpoena, what is sufficient, 379.
of notice to produce (see Notice to Produce), 152-160.
SET-OFF, when barred by judgment, 789-792.
SEXUAL INTERCOURSE between husband and wife, presumptions as to,
1298.
boy when presumed incapable of, 1271, 1272.
SHIP, loss of, when presumed, 1283.
SHOP-BOOKS, admissible when verified by oath of party, 678.
change of law in this respect by statutes making parties witnesses, 679.
not necessary that party should have independent recollection, 680.
charge must be in party's business, 681.
book must be one of original entry, 682.
entries must be contemporaneous, 683.
book must be regular, 684.
charge must relate to immediate transaction, 685.
such books may be secondary, 686.
630
INDEX.
SHOP-BOOKS — (continued).
when plaintiff's case shows transfer to ledger, the ledger must be pro-
duced, 687.
writing of deceased party may be proved, 688.
SICKNESS may be proved by exclamations of pain, 268.
of attesting witness, effect of, 728.
SIGNATURES, how proved (see Handwriting).
when necessary by statute (see Statute of Frauds).
what judicially noticed (see Judicial Notice).
SILENCE, when operating as an admission (see Admissions), 1136-1159.
SIMILARITY, a basis for induction, 39, 1284-1296.
SIZE, opinion as to, admissible, 512.
SKILLED WITNESSES (see Experts).
SLANDER (see Libel), proved inductively, 33.
plaintififs good character inadmissible, 47, 53.
SLEEP, assent not presumed during, 1138.
SOCIAL LAWS, when judicially noticed, 335.
SOCIETIES, minutes of (see Corporations), 1311.
SOIL, under water presumed to belong to owner of land adjacent, 1341. See
1339.
SOLD NOTE (see Bought and Sold Notes).
SOLEMNITIES of document (see Handwriting, Seal), 1313.
SOLEMNIZATION of marriage, when presumed regular, 1297.
SOLICITOR (see Attorney).
SOLVENCY, reputation concerning, when admissible, 35.
presumedcontinuous, 1289.
SOVEREIGN, grant from, when presumed, 1348.
proclamations of, when judicially noticed, 317.
seal of, judicially noticed, 318.
prior judicial notice taken of laws of, 291.
foreign, existence of judicial notice taken of, 323.
SPECIALTIES (see Bonds, Deeds).
SPECIFIC PERFORMANCE, in suit for, evidence, 1017, 1039.
SPELLING, proof of handwriting by idiosyncrasies of, 706-718.
SPOLIATION, party tampering with evidence chargeable with conse-
quences, 1265.
so of party holding back evidence, 1266.
STAMP, when necessary to document, 697.
STATE, acts of, when judicially noticed (see Judicial Notice).
secrets of, privileged (see Privileged Communications), 604.
STATES, foreign (see Foreign States).
STATUS, decrees as to not necessarily ubiquitous, 817.
effect of judgments as to, 815.
STATUTE OF FRAUDS.
Genekal Considerations.
statutory assignments of probative force, 850.
631
INDEX.
STATUTE OF FRAVDS — (continued).
error in this respect of scholastic jurists, 851.
intensity of proof cannot be arbitrarily fixed, 852.
relations in this respect of statute of frauds, 853.
Transfers of Land.
under statute parol evidence cannot prove leases of over three years, 854.
estates in land can be assigned only in writing, 856.
surrender by operation of law excepted, 858.
such surrender includes act by landlord and tenant inconsistent with ten-
ant's interest, 860.
mere cancellation of deed does not revest estate, 861.
assignments by operation of law excepted, 862.
in other respects writing is essential to transfer of interest in lands, 863.
though seal is not necessary, 865.
but interest in lands does not include perishing severable crops and fruit,
866.
agent's authority need not be in writing unless required by statute, 868.
[As to equitable modifications of statute in this respect, see infra,
903 et seq.']
Sales of Goods.
sales of goods must be evidenced by writing, unless there be part pay-
ment or earnest. Delivery and consideration must appear, 809.
other material averments must be in writing, 870.
but may be inferred from several documents, 872.
place of signature immaterial, and initials may suffice, 873.
when main object is sale of goods, writing is necessary, 874.
acceptance and receipt of goods takes sale out of statute, 875.
acceptance by carrier or expressman is not acceptance by vendee, 876.
partial payment may take sale out of statute, 871.
Guarantees.
guarantees must be in writing, 878.
statutory restriction relates to collateral, not original promises, 879.
in such case indebtedness must be continuous, 880.
Marriage Settlements.
marriage settlements must be in writing, 882.
Agreements in Futuro.
agreements, not to be performed within a year, must be in writing, 883.
Wills.
wills must be executed conformably to statute. English Will Act of 1888,
884.
provisions, in this respect, of statute of frauds, 885.
distinctive adjudications under statutes, 886.
testator may sign by a mark, or have, his hand guided; and witnesses may
sign by initials, and without additions, 889.
imperfect will may be completed by reference to existing document, 890.
revocation cannot be ordinarily proved by parol, 891.
632
INDEX.
STATUTE OP FRAUDS — (continued).
revocation may be by subsequent will, 892.
proof inadmissible to show destruction out of testator's presence, 893.
to revocation, intention is requisite, and burden is on contestant, 894.
contemporaneous declarations admissible, 895.
testator's act must indicate finality of intentions, 896.
so of cancellation and obliteration, 897.
parol evidence admissible to show that destruction was intentional, or was
believed by testator, 899.
parol evidence admissible to negative cancellation, 900.
Equitable Modifications of Statute.
parol evidence not admissible to vary contract under statute, 901.
parol contract cannot be substituted for written, 902.
conveyance may be shown by ptool to be in trust or in mortgage,
903.
performance, or readiness to perform, may be proved by way of accord
and satisfaction, 904.
contract may be reformed on above conditions, 905.
waiver and .discharge of contract under statute can be proved by parol,
906.
equity will relieve in case of fraud, but not where fraud consists in plead-
ing statute, 907.
but will where statute is used to perpetuate fraud, 908.
so in case of part-performance, 909.
but payment of purchase-money is not enough, 910.
where written contract is prevented by fraud, equity will relieve, 911.
parol contract admitted in answer may be equitably enforced, 912.
STATUTES, proof of (see Laws), 287, 318.
cannot be varied by parol, 980 a.
public, judicially noticed, 289.
when proved by printed volume, 289.
private acts, how proved, 292.
presumption in favor of, from long enjoyment, 1331-1348.
construction of, question for judge, 980.
foreign statutes, how proved, 300.
public statutes prove their recitals, 635.
otherwise as to private statutes, 636.
journals of legislature proof as to recited facts, 637.
a new statute presumes a change in old law, 1260.
in interpreting, whole context must be considered, 980 a.
parol evidence inadmissible to explain, 980 a.
due passage of determined by court, 290.
STEWARD, entries of, when deceased, how far admissible, 231, 234-247.
STOCK, effect of contract for sale of, under statute of frauds, 869-872.
STRANGER, alterations made by, in documents, when fatal, 627.
judgments, when evidence against, 760.
633
INDKX.
STRANGER — (continued).
judgments in rem, effect of as to, 814.
probate and inquisitions, effect of evidence as to, 810-812
estoppels not binding, 760, 1083-1085, 1143.
declarations by, when evidence (see Admissions), 175.
STRENGTH, opinion as to, admissible, 512.
SUBPCENA, how enforcing attendance of witnesses (see Witnesses), 377-
379.
how enforcing the production of documents, 150, 377.
may be sealed in blank, 632.
how service must be made, 379.
when witness must answer, though he has not been served with, 378.
SUBSCRIBING WITNESS (see Attesting WUness, Witness).
SUBSCRIPTIONS cannot be modified as to third parties by parol, 1068.
SUCCESSOR, bound by predecessor's admissions, 115fi-1163.
SUFFERING may be proved by instinctive declarations, 268, 269.
SUICIDE, presumption against, 1247.
SUNDAY, coincidence of days of the month with, judicially noticed, 331,
332-335.
SUPPORT, right to, from soil or lower stories (see Presumptions), 1346.
SUPPRESSION OF EVIDENCE, presumption from, 1266.
SURETY, how affected by admission of principal, 1212.
effect on, of judgment against principal, 770, 823.
suretyship on writing may be shown by parol, 952.
SURGEON (see Experts), admissible as expert, 441.
not privileged as witness, 606.
SURPLUSAGE, when to be rejected from description, 945, 1004.
SURRENDER of lease, by operation of law, what (see Statute of- Frauds),
858.
SURVEYORS, note? by, when admissible, 248.
SURVEYS, when evidence, 668-670.
SURVIVORSHIP, presumptions respecting, 1280.
SYMPTOMS, declarations as to, admissible, 268, 1346.
SYSTEM, admissible to sustain an inference as to particulars, 39, 268, 448,
1293, 1346.
TAGS, provable by parol, 81.
TALLIES, admissible as proof, 614.
TAXATION, cannot be proved by parol, 65.
TAX BOOKS, when admissible, 641.
TAXES, paying, prima facie proof of possession, 733.
inference from, 1291.
presumption of payment of, 1360.
TAX SALE, must be proved by record, 63. See 1358.
TECHNICAL TERMS, in writing may be e.\plained by parol, 939, 972.
634
INDEX.
TELEGRAM, may constitute contract, 617.
may admit indebtedness, 1128.
under statute of frauds, 617, 872.
not privileged, 595.
original must be produced, 76, 1128.
TENANCY, fact of, provable by parol, without producing lease, when, 77.
when writing is necessary to, 854.
how to be surrendered by operation of law (see SlMute of Frauds), 858.
incidents annexed to by usage, 969.
TENANT, estopped from disputing landlord's title (see Estoppel), 1149.
admissions by landlord, how far evidence against, 1159.
admissions by, when admissible against landlord, 1161.
surrendering by operation of law (see Statvie of Frauds), 858.
TERMS OF ART, explanation of, 961, 972.
TESTAMENT (see Will).
TESTATOR, intention of, when admissible (see WUls), 1001, 1010.
TESTIMONY, bills to perpetuate, 180.
THANKSGIVING, days of, judicially noticed, 331-335.
TIMBER, when within statute of frauds, 866.
TIME may be inferred from circumstances, 979.
inference of law as to, 1312.
opinion as to admissible, 512.
in contract, when can be varied by parol, 969, 977, 1015, 1026.
calculation and course of judicially noticed, 332.
lapse of, effect of, 261, 1338.
of gestation, when judicially noticed, 334.
TIME TABLE, facts may be proved by parol, 77.
TITLE, presumptions as to, 1331.
presumption from possession, 1331.
as to realty, 1332.
such possession must be independent, 1334.
as to personalty, 1336.
policy of the law favors presumptions from lapse of time, 1338.
soil of highway presumed to belong to adjacent proprietor, 1339.
so of hedges and walls, 1340.
soil under water presumed to belong to owner of land adjacent, 1341.
so of alluvion, 1342.
tree presumed to belong to owner of soil, 1343.
so of minerals, 1344.
easements to be presumed from unity of grant, 1346.
where title is substantially good, and there is long possession, missing
links will be presumed, 1347.
grants from sovereign will be so presumed, 1348.
grant of incorporeal hereditament presumed after twenty years, 1349.
so of intermediate deeds and other procedure, 1352.
instances of links of title so supplied, 1353.
635
INDEX.
TITLE — (continued).
links of record may be thus supplied, 1354.
and so as to licenses, 1356.
title to justify such presumption must be substantial, 1357.
presumption is rebuttable, 1358.
burden is on party assailing documents thirty years old, 1359.
TOMBSTONE, inscriptions on, when evidence in pedigree, 220.
TORTS, burden of proof as to in, 358.
admission of one tort-feasor not necessarily evidence against others, 1204.
effect of judgment against one on others, 773.
payment of money into court in suit for, how far an admission, 1114, 1115.
TOWN KECORDS, cannot be varied by parol, 987.
are admissible evidence, 641.
meetings, how far parol evidence applicable to, 77.
proceedings of, presumed to be regular, 1310.
TRADE, usage of, may explain writing, when (see Parol Evidence), 958-971.
TRADESMEN, entries by, in books of original entries, when evidence, 678-
686.
TRADITION, family, in matters of pedigree (see Pedigree), 201-215.
in matters of public interest (see Hearsay), 185-193.
TREATISES, when admissible, 665-667.
TREES, presumption of ownership in, 1343.
when within § 4 of statute of frauds, 866.
TRESPASS (see Torts).
TROVER, parol description admissible, though demand in writing also made,
77, 78.
for documents, notice to produce unnecessary, 159.
judgment for defendant in, when bar to action of assumpsit, 779.
TRUSTEES, admissions by one, when receivable against others, 1199.
admissions by cestui que trust, when receivable against, 1213.
when presumed to have conveyed legal estate to real owner, 1347.
presumption against deed of gift to, 1248.
TRUSTS, creation of, must be proved by writing, under statute of frauds, 903.
effect of letter acknowledging, 903.
resulting trusts may be proved by parol, 903, 1038.
so as to other trusts, 903, 1038.
TRUTH, real and not formal, the object of judicial inquiry, 2, 1228-1231.
witness's character for, how tested, 562.
UNDERWRITER (see Insurance).
UNDUE INFLUENCE (see Wills). 1009.
UNIFORMITY, presumptions of, 1285.
UNITY of origin, presumption from, 39, 268, 448, 1346.
USAGE, when provable by tradition, 188, 189.
cannot be proved to vary dispositive writings, 958.
otherwise in case of ambiguities, 961.
636
INDEX.
USAGE — (continued).
is to be brought home to the party to whom it is imputed, 962.
may be proved by one witness, 964.
is to be proved to the jury, and must be reasonable, and not conflicting
■with lex fori, 965.
when no proof exists of, meaning is for court, 966.
power of agent may be construed by usage, 967.
received to explain broker's memoranda, 968.
customary incidents may be annexed to contract, 969.
course of business admissible in ambiguous cases, 971.
of what customs courts take notice, 331.
when persons are presumed cognizant of, 1243.
VALUE, may be proved by persons familiar with, 447, 448.
may be proved by hearsay, 255, 449.
is to be inferred from circumstances, 1290.
VAKIANCE between document produced and that described in notice, 152-
156.
VELOCITY, opinion as to, admissible, 512.
VENDEE cannot dispute vendor's title (see Purchaser), 1 149.
VENDOR, admission by, when evidence against purchaser, 1163, 1167.
cannot usually deny title of vendee, 1147, 1148.
when bound to warranty of title, 1147.
VERACITY, of witness, how impeached, 562.
how sustained, 569.
want of, effect of, on credibility, 404.
VERDICT, jurors cannot prove misconduct in regard to, 601.
when evidence as to reputation, 200, 827, 831.
presumption of validity of, 1302.
inadmissible without record, 831.
without judgment is no bar, 781.
VESSEL, presumption as to ownership of, 1336.
VIEW, of vicinage, or of chattel, by jury allowed, 345-347.
VOIR DIRE, examination as to (see Witnesses), 492.
WAIVER of written contract, when parol evidence admissible to prove (see
Parol Evidence), 1017-1025.
of deed, can only be effected by deed (see Deeds), 108.
WALL, ownership of, presumptions relating to, 1340.
WAR, fact of, when judicially noticed, 339.
when to be shown by recital in statute, 635.
articles of, how proved, 297.
WARD (see Guardian).
WAREHOUSEMAN, cannot deny title of bailor, 1149.
delivery of goods to, when acceptance within statute of frauds, 875.
WARRANTY, by servant, when evidence against master, 1085, 1170, 1173.
when annexed to contracts of sale, 969.
637
INDEX.
WAY(see Highway).
when public may be explained by reputation, 185-190.
hearsay inadmissible to prove private right of, 187.
WAY-GOING CROP, usage as to, when receivable to explain lease, 969.
WEATHER, registry of, when admissible, 647.
when judicially noticed, 334.
"WEEK," meaning of, 961 a.
WEIGHTS AND MEASURES, judicially noticed, 331-335.
opinion as to, admissible, 512.
WIFE (see Husband and Wife, Married Woman").
WILLS, parol evidence how far admissible to explain (see Parol Evidence).
cannot be varied by parol. Intent must be drawn from writing, 992.
when primary meaning is inapplicable to any ascertainable object, evi-
dence of secondary meaning is admissible, 997.
when terms are applicable to several objects, evidence admissible to
distinguish, 997.
in ambiguities, all the surroundings, family, and habits of the testator
may be proved, 998.
all the extrinsic facts are to be considered, 999.
when description is only partly applicable to each of several objects, then
declarations of intent are inadmissible, 1001.
evidence admissible as to other ambiguities, 1002.
erroneous surplusage may be rejected, 1004.
patent ambiguities cannot be resolved by parol, 1006.
ademption of legacy may be proved by parol, 1007.
parol proof of mistake of testator inadmissible, 1008.
fraud and undue influence may be so proved, 1009.
testator's declarations primarily inadmissible to prove fraud or compul-
sion, 1010.
but admissible to prove mental condition, 1011.
parol evidence inadmissible to sustain will when attacked, 1012.
probate of, only prima facie proof, 1013.
thirty years old require no proof, 703, 1358.
must be executed conformably to statute. English Will Act of 1838, 884.
provisions, in this respect, of statute of frauds, 885.
distinctive adjudications under statutes, 886.
testator may sign by a mark, or have his hand guided; and witnesses may
sign by initials, and wirthout additions, 889.
imperfect will may be completed by reference to existing document,
890.
revocation cannot be ordinarily proved by parol, 891.
may be by subsequent will, 892.
proof inadmissible to show destruction out of testator's presence, 893.
to revocation, intention is requisite, and burden is on contestant, 894.
contemporaneous declarations admissible, 895.
testator's act must indicate finality of intentions, 896.
638
INDEX.
WILLS — (^continuea') .
so of cancellation and obliteration, 897.
parol evidence admissible to show that destruction was intentional, or was
believed by testator, 899.
parol evidence admissible to negative cancellation, 900.
foreign, how proved, 119.
when certified copies are evidence, 66.
WITHHOLDING EVIDENCE, presumption arising from, 1266.
WITHOUT PREJUDICE, offers made, when admissible, 1090.
WITNESSES.
Procuring Attendance.
duty of all persons cognizant of litigated facts to testify, 376
subpoena the usual mode of enforcing attendance, 377.
witness may decline answering unless subpcEnaed, 378.
subpoena must be personally served, 379.
fees allowable to witness, 380.
expenses must be prepaid, 381.
witness refusing to attend is in contempt, 382.
attachment granted on rule, 383.
habeas corpus may issue to bring in imprisoned witness, 384.
witness may be required to find bail for appearance, 385.
Oath and its Incidents.
oath is an appeal to a higher sanction, 386,
witness, is to be sworn by the form he deems most obligatory, 387.
affirmative may be substituted for oath, 388.
Privilege from Arrest.
witness not privileged as to criminal arrest, but otherwise as to civil, 389.
may waive his privilege, 390.
Who are Competent Witnesses.
competency is for court, 391.
presumed, 392.
ordinarily competency should be excepted to before oath, 393.
distinction between primary and secondary does not apply to witnesses,
394.
atheism at common law disqualifies, 395.
evidence may be taken as to religious belief, 396.
infamy at common law disqualifies, 397.
removal of disability by statute, 397.
admissibility of infants depends on intelligence, 398.
deficiency of percipient powers, if total, excludes, 401.
the same tests are applicable to insanity, 402.
witness may be examined by judge as to capacity, 403.
credibility depends not only on veracity but on competency to observe,
404.
incapacity to relate may affect competency, 405.
deaf and dumb witnesses not incompetent, 406.
639
INDEX.
WITNESSES — (continued).
interpretation admissible, 407.
bias to be taken into account in estimating credibility, 408.
and so of want of opportunities of observation, 409.
and so uncertainty of memory, 410.
want of circumstantiality a ground for discredit, 411.
falsum in uno,fahum in omnibus, not universally applicable, 412.
literal coincidence in oral statements suspicious, 413.
one witness generally enough to prove a case, 414.
affirmative testimony stronger than negative, 415.
when credit is equal, preponderance to be given to numbers, 416.
credibility of witnesses is for jury, 417.
intoxicated witnesses may be excluded, 418.
interest no longer disqualifies, 419.
counsel in case may be witnesses, 420.
Distinctive Rules as to Husband and Wife.
husband and wife incompetent in each other's suits at common law, 421.
but may be witnesses to prove marriage collaterally, 424.
cannot be compelled to criminate each other, 425.
distinctive rules as to bigamy, 426.
cannot testify as to confidential relations, 427.
consent will waive privilege, 428.
effect of death and divorce on admissibility, 429.
general statutes do not remove disability, 430.
otherwise as to special enabling statutes, 431.
husband and wife may be admitted to contradict each other, 432.
in divorce cases, testimony to be carefully weighed, 433.
Distinctive Eules as to Experts.
expert testifies as a specialist, 434.
may be examined as to laws other than the lex fori, 435.
but cannot be examined as to matters non-professional, or of common
knowledge, 436.
whether conclusion belongs to specialty is for court, 437.
expert may be examined as to scientific authorities, 438.
expert must be skilled in his specialty, 439.
experts may give their opinions as to conditions connected with their
specialties, 440.
physicians and surgeons are so admissible, 441.
so of lawyers, 442.
so of scientists, 443.
BO of practitioners in a business specialty, 444.
so of artists, 445.
so of persons familiar with a market, 446.
opinion as to value admissible, 447.
generic value admissible in order to prove specific, 448.
proof of market value may be by hearsay, 449.
640
nay be examined as to hypothetical case, 452.
)lain his opinion, 453.
mony to be jealously scrutinized, 454.
ly when ex parte, 455.
be specially feed, 456.
ivE Rules as to Parties.
Joman law conscience of parties could be probed, 457.
practice examination of parties was permitted, 460.
nee of such testimony, 461.
f parties have obligatory as well as evidential force, 462.
removing disability not ex post facto, 463.
to be liberally construed, 464.
'er depositions, 465.
jeption when other contracting party is deceased, 466.
ied on equity practice, 467.
ompetency in such case restrained to communications with de-
;eased, 468.
3s not extend to contracts not exclusively with deceased, 469.
3s not exclude intervening interests, 470.
js not exclude executor from testifying in his own behalf, 471.
viving partner against estate, 472.
iludes real but not technical parties, 473.
5s not relate to transactions after deceased's death, 474.
3S not extend to torts, 475.
3S not make incompetent witnesses previously competent, 476.
es not exclude testimony of parties taken before death, 477.
I do not touch common law privilege of husband and wife, 478.
of attorney, 479.
i subject to the ordinary limitation of witnesses, 480.
cross-examined to the same extent, 481.
examined as to his motives, 482.
avoid relevant questions on the ground of self-crimination, 483,
contradicted on material points, 484.
reexamined, 485.
ption against party for not testifying, 486.
inesses not necessary to overcome party's testimony, 487.
s bound by his own admissions on the stand, 488.
tatutes one party may call the other as witness, 489.
party is examined on interrogatories equity practice is followed,
ltion of Witnesses.
lay order separation of witnesses, 491.
41 641
INDEX.
WITNESSES — (continued).
voir dire a preliminary examination, 492.
interpreter to be sworn, 493.
witnesses refusing to answer punishable by attachment, 494.
witness is no judge of the materiality of his testimony, 495.
court may examine witness, 496.
witness is protected as to answers, 497.
on examination cannot be prompted, 498.
leading questions usually prohibited, 499.
exception as to unwilling witness, 500.
and as to witness of weak memory, '501.
so when such question is natural, 502.
so when witness is called to contradict, 503.
so when certain postulates are assumed, 504.
court has discretion as to cumulation of witnesses, and of examination,
505.
so as to mode and tone of examination, 506.
witness cannot be asked as to conclusion of law, 507.
conclusion of witness as to motives inadmissible, 508.
opinion of witness cannot ordinarily be asked, 509.
witness may give substance of conversation or writing, 514.
vafue impressions of facts are inadmissible, 515.
Refkeshing Memory of Witness.
witness may refresh his memory by memoranda, 516.
such memoranda are inadmissible if unnecessary, 51 7.
not fatal that witness has no recollection independent of notes, 518.
not necessary that notes should be independently admissible, 519.
memoranda admissible if primary and relevant, 520.
notes must be primary, 521.
not necessary that writing should be by witness, 522.
inadmissible if subsequently concocted, 523.
depositions may be used to refresh the memory, 524.
opposing party is not entitled to inspect notes which fail to refresh mem-
ory, 525.
opposing party may put the whole notes in evidence if used, 526.
Cross-examination.
on cross-examination leading questions may be" put, 527.
closeness of cross-examination at the discretion of the court, 528.
witness can usually be cross-examined only on the subject of his exami-
nation in chief, 529.
his memory may be probed by pertinent written instruments, 531.
but collateral points cannot be introduced to test memory, 532.
witness cannot be compelled to criminate himself, 538.
nor to expose himself to fine or forfeiture, 534.
privilege in this respect can only be claimed by witness, 535.
danger of prosecution must be real, 536.
642
INDEX.
WITNESSES — (continued).
exposure to civil liability or to police prosecution, no excuse, 537.
court determines as to danger, 538.
waiver of part, waives all, 539.
pardon and indemnity do away with protection, 540.
for the purpose of discrediting witness, answers will not be compelled
to questions imputing disgrace, 541.
otherwise when such questions are material, 542.
questions may be asked as to religious belief, 543.
and so as to motive, veracity, and the res gestae, 544.
witness may be cross-examined as to bias, 545.
inference against witness may be drawn from refusal to answer, 546.
his answers as to previous conduct generally conclusive, 547.
Impeaching Witness.
party cannot discredit his own witness, 549.
[As to Subscribing Witness, see 500.]
a party's witnesses are those whom he voluntarily examines in chief,
550.
witness may be contradicted by proving that he formerly stated differ-
ently, 551.
but usually must be first asked as to statements, 555.
witness cannot be contradicted on matters collateral, 559.
by old practice conflicting witnesses could be confronted, 560.
witness's answer as to motives may be contradicted, 561.
his character for truth and veracity may be attacked, 562.
questions to be confined to this issue, 563.
bias of witness maybe shown, 566.
infamous conviction may be proved as affecting credibility, 567.
Attacking and sustaining Impeaching Witness.
impeaching witness may be attacked and sustained, 568.
Sustaining Impeached Witness.
impeached witness may be sustained, 569.
but not ordinarily by proof of former consistent statement, 570.
may be corroborated at discretion of court. 571.
Reexamination.
party may reexamine his witnesses, 572.
witness may be recalled for reexamination, 574.
and for re-cross-examination, 575.
Privileged Communications.
lawyer not permitted to disclose communications of client, 576.
not necessary that relationship should be formally instituted, 578.
nor that communications should be made during litigation, 579.
nor is privilege lost by termination of relationship, 580.
privilege includes scrivener and conveyancer, as well as general counsel,
581.
so as to lawyer's representatives, 582.
643
INDEX.
WITNESSES — (continued).
client cannot be compelled to disclose communications made by Mm to
his lawyer, 583.
privilege must be claimed in order to be applied and may be waived,
584.
privilege applies to client's documents in lawyer's hands, 585.
lost as to instruments parted with by lawyer, 586.
communications to be privileged must be made to party's exclusive ad-
viser, 587.
lawyer not privileged as to information received by him extra-profes-
sionally, 688.
information received out of scope of professional duty not privileged,
589.
privilege does not extend to communications in view of breaking the law,
590.
nor to testamentary communications, 591.
lawyer making himself attesting witness loses privilege, 592.
business agents not lawyers are not privileged, 593.
communications between party and witnesses privileged, 594.
telegraphic communications not privileged, 595.
priests not privileged at common law as to confessional, 596.
arbitrators cannot be compelled to disclose the ground of their judgments,
599.
nor can judges, 600.
nor jurors as to their deliberations, 601.
juror if knowing facts must testify as witness, 602.
prosecuting attorney privileged as to confidential matter, 603.
state secrets are privileged, 604.
and consultations of legislature and executive, 605.
medical attendance not privileged, 606.
no privilege to ties of blood or friendship, 607.
parent cannot be examined as to access in cases involving legitimacy,
608.
Depositions.
depositions governed by local laws, 609.
WOMEN, presumptions as to child-bearing, 334, 1298-1800.
WORDS, how to be interpreted, 936, 972.
meaning of, when judicially noticed, 282.
when meaning for judge, when for jury, 966.
WRITINGS, criminatory, witness is not bound to produce, 751.
when admissible to refresh memory (see Memory).
presumed to be made on day of date (see Date), 1312.
cannot be proved by parol on cross-examination, 68.
in construing, effect of written as compared with printed words, 925.
thttty years old require no proof, 703, 1359.
cannot be proved by parol (see Primariness), 60, 163.
644
Dns may prove contents of writings, 1091.
itatione of this rule, 68, 553, 1093.
Dns not excluded because party could be examined, 1094.
ons may prove execution, 1091.
ess when there are attesting witnesses, 1095.
ontext must be received, 617, 618, 1103.
in pencil, 616.
admissions entitled to peculiar weight, 1122.
trument may be an admission, though undelivered, 1123.
instrument may be used as an admission (see Admissions), 1124.
'itness may be cross-examined as to contents of, 68, 553.
writings, when necessary under statute of frauds (see Statute of
;rfs), 851-911.
D be attested (see Attesting Witness').
Lust be signed by party personally, 854-860, 873-889.
lUst be signed by agent constituted by writing, 702, 867, 868.
(see Public Documents).
ished, or found on person, when admissible against him, 1123,
ption from spoliation of, 1264.
ption from withholding of, 1266.
hen admissible singly, 828-834.
iroof of facts recited in them, 833 a, 838, 1116-1121.
ed to be regularly issued, 1302.
sealed in blank, and then filled up, 632-634.
en writing is necessary to agreement not to be performed within,
645
TABLE OF CASES.
[the figures refer to the sections.]
A.
Aaron v. Aaron
890
Abbe V. Eaton
1070
V. Shields
555
Abbey v. Dewey
1290
V. LiU
445
Abbot V. Plumbe
725
Abbott V. Abbott
942, 944
V. Abbott & Grodoy
653
V. Draper
910
V. Hendricks 1044, 1060
V. Marshall 1046, 1049, 1056
V. Massie 1008
V. Middle ton 924
K. Mnir 1163o
V. Shepard 872
V. Stribbeu 420
Abeel v. Radclifif 901
Abelw. Ktch 415
V. Potts 639
Abercrombie v. Abercrombie 1008
V. Allen 1138
Abington v. Bridgewater 114, 115
Abrams v. Pomeroy 920, 936, 977
Abrey v. Crux 929
Acebal v. Lery 875, 876
Acerro v. Petroni 501
Acheson v. Henry 490
Acker v. Bender 946
V. Phoenix 1050
. Ackland v. Pearce 162
Ackley v. Dygert 66
Acraman v. Morrice 875
Adair v. McDonald 1020
Adam w. Eames 1108
V. Kerr 726, 727, 729, 1314
Adams v. Adams 835
V. Barnes 769
V. Beale 77
V. Bean 869
V. Briggs 1345
V. CouUiard 518, 661
I'. Dansey 880
K.Davidson 1164,1167
Adams v. Field 356, 711
V. Fitzgerald 146
V. Flanagan 1069
V. FuUam 904
w. Funk 510,1132,1194
V. Garrett 920
V. Guice 132
V. Harrold 502
V. Ins. Co. 965
V. Jonea 1274
V. Lawson 47
V. Leland 151
V. McKesson 854, 864
V. McMillan 868
V. Morse 969
V. Packet Co. 1070
V. R. E. 1296
V. Rockwell 909
V. Royal Mail Steam Packet
Co. 961
V. Sanders 1065
V. Stanyan 113, 185, 669
17. State 106
V. Steamboat Co. 686
V. Stettaners 357
V. Swansea 208
V. Tiernan 775, 795
V. Townsend 910
V. Way 97
I,. Wheeler 549
V. Wordley 920, 929, 1014
V. Wright 123
Adamthwaite v. Synge 94
Addington v. Allen 1305
Adkins v. Hershy 490
Adler v. Freedman 1025
V. Friedman 1022
Adlumj). Yard 1144
Adm. V. Ammon 864
Adriance v. Arnot 505
JEtna Ins. Co. v. Johnson 1246
Affleck V. Affleck 931
Agawam Bank v. Strever 1026
Agricult. Cat. Ins. Co. v. Fitzgerald
77, 623, 1124
647
TABLE OF CASES.
Aiken v. Mendenhall
529
V. Peck
578
V. Tel. Co.
1180
V. Bemis
1181
V. Hodge
175
Aikman v. Cummings
945
Ainsworth v. Greenlee 72, 706, 708
Akerman v. Fisher
909
Alabama K. E. v. Burkett
513
V, Johnson
1175
V. Sanford
1125
Alban v. Pritchett
1217
Albea v. GriiBn
909
Albert v. The Grosvenor Invest. Co.
1018
B. Winn 912
w. Ziegler 920,936,1158
Albertson v. Robeson 208, 295, 637
Albright V. Cobb 1316
». Covley 444,511
Alchin V. Hopkins 863
Alcock V. Ins. Co. 519
V. Whatmore 322
Alden v. Grove 1157, 1168
Alder v. Savill 800
Alderman v. French 53
V. People 539
Alderson v. Bell 326
V. Clay 78, 1131, 1284
V. Langdale 626
Aldoiis V. Cornwell 623
Aldrich v. Hapgood 1022
V. Kinney 796, 802, 808
V. Pelham 40
V. Stockwell 1061
Aldridgew. Eshleman 944, 1019
( V. Johnson 875
V. E. R. 43, 360
Alexander v. Burnham 337
V. Chamberlin 208
V. Crosbie 1022
V. Ghiselin 902
V. Gibson 967
V. Gould 1167
V. Knox 537
V. McCullough 108
V. Moore 1026
V. Nelson 982
u. Smoot 678
V. Strong 149
V. Taylor 764
Alexander's Succession 1332
Alfonso V. V. S. 175, 446, 674
Alford V. Baker 1336
V. Hughes 838
Alger V. Scoville 879
V. Thompson 685
Alivon V. Furnivall 74, 82, 129, 658
Allaire v. Whitney 1362
Allan V. Royden 594
V. Sundius 969
V. Vanmeter 996
Allen ». Allen 1040, 1056
648
Allen V. Bates
942
V. Bennet
872, 873
V. Blunt
151, 1323
V. Coit
1131
». Denstone
267,1174,1180
V. Duncan
262
V. Dundas
66,810, 811,816
V. Dunham
120
V. Furbish
929, 1058
V. Gray
828
V. Hancock
573
V. Harrison
588
V. Holdeu
739
V. Hoxey
108
V. Jaquish
865
V. Killinger
1190
V. Lyons
333, 1274
V. Maddock
890, 1003
V. Martin
833
V. Mills
982
V. Parish
129
V. Peters
1154
V. Prink
969
V. Public Administrator 606
V. R. R.
693
V. Sales
623
i. Smith
1331
V. Sowerby
1026
V. Stage Co.
990
V. State
135, 708
V. Tison
290
V. Vincennes
643
V. Willard
336
Allen's Estate 864, 909, 910
Allen's Patent, in re 1320 a
Alleghany Co. v. Nelson 228, 292, 1319,
1353
Allegheny Home's Appeal 290
AUgood V. Blake 998
Allis V. Day 442
0. Leonard 484
V. Read 877
Allison V. Barrow 427
Allison's case 758
AUman v. Owen 282, 335
Almgien v. Dutilh 944
Almosino, in re 1003
Alner v. George 1207
Allport V. Meek 712
AUshouse v. Ramsay 880
AUyn V. E. R. 361
Alpaugh's Will 887
Alsager v. Dock Co. 925
Alsop V. Goodwin 1058
Alston V. Alston 1354
V. Grantham 1136
V. Wingfield 1019
Alter V. Berghaus 249
V. Langebartel 881, 1058
V. McDougal 699
Alton V. Gilmanton 1184
Alton R. R. V. Northcott 507
Altschul V. San Fi-ancisco W2
TABLE OF CASES.
Alvord V. Baker
V. Collin
American v. Kimpert
Am. Ex. Co. V. Schier
Am. Fur Co. v. V. S.
Am. Iron Co. v. Evans
Am. Life Ins. Co. v. Shultz
1362
739
357
937
1192
1194
466, 469,
476
Am. Life & Trust Co. v. Eosenagle 82,
87, 94, 148, 201, 208, 307, 653, 658
Am. R. R. Co. V. Haven 746
Am. Soc. V. Pratt 992
Ames V. Gilmore 1049
V. Snider 356, 513
Amey v. Long 377
Amherst Bank v. Root 708, 719, 1214
Amherst R. R. v. Watson 490
Amick V. Young 259
Amory v. Amory 784, 982, 985
Amos V. Hughes 356, 357
Amsden v. R. R. 788
Anable v. Anable 433, 481
Anderson v. Ames 678
V. Anderson 288, 429, 797, 861,
890
V. Applegate 152
a. Bruner 1175
V. Chick 909
V. Collins 487
V. Cox 824
V. Davis 880
V. Folger 288
V. Gill 1253
V. Hamilton 604
V. Hance 47.'?
V. Hayman 880
V. Hutcheson 1019
V. James 176
V. Johnson 377
V. Lanenville 1097
V. Long 47, 48, 256
V. Maberry 147, 391, 395, 396
V. McCarty 1038
W.Parker 201,223,1277
... R. E. 267,276,1170,1173,
1174, 1175, 1180, 1182
V. Root 156
V. Sanderson 1177
V. Scot 875
V. Shoup 950, 951
V. Simpson 909
V. Snow 689
V. State 534, 573
V. Turner 740
u. Weston 977,978,1135,
1312
b. Whalley 522
V. Wilson 470
Anderton v. Magawley 827
Anding w. Davis 1030
Andre v. Bodman 393, 881
V. Hardin 439
Andres «. Lee 1137
Andrews v. Andrews 1042, 1049
V. Askey 51, 551
i>. Frye 486,533,546,1137
V. Hancock 1017
V. Herriot 803 ,
V. Kneeland 967
u. Marshall 740
V. Martin 390
V. Motley 195, 729, 1314
V. Palmer 178, 179
V. Pond 632
V. Vanduzer 49
Androscoggin Bk. v. Kimball 932, 1243,
1271
Angell V. Bowler 833
V. Duke 1026
V. Rosenburg 61, 253
Angier v. Ash 833
Angle V. Ins. Co. 632
Anglea v. Com. 567
Anglesey v. Hatherton 194
Angomar v. Wilson 921, 1019
Angus V. Smith 549, 551, 555
Annan v. Merritt 909
Annap. R. R. v. Gantt 43
Annapolis v. Harwood 290, 980 a
Annesley v. Anglesea 432, 569, 589, 590,
1265
Anon. 53, 107, 155, 398, 400, 421, 523,
562, 597, 599, 608, 704, 838,
864, 867, 1343
V. Parr 490
Ansell V. Baker 1091
Anson v. Dwight 447
V. Ins. Co. 1172
Anspach v. Bast 1019, 1058
Anstee v. Nelms 1003
Anthony v. Atkinson 1031
V. Leftwich 909
V. Smith 441, 505
Antonio v. Gould 290
Antram v, Chace 824
Apoth. Co. V. Bentley 367
Appleton V. Lord Braybrooke 104
Apsden's Estate 957, 992
Apthorp V. Comstock 1205
V. North 1302
Aranguren v. Scholfield 149
Arbery v. Noland 1021
Arbouin v. Anderson 1061
Archangelo v. Thompson 1325
Archer v. Bacon 821
V. Baynes 870, 872
V. English 1114
Archibald v. Davis 115
Archp. ofCant. u. Tubb 753
Arden v. Sullivan 855
Ardesco v. Gilson 510
Arding v. Flower 389
Arent a. Squire 364
Argenbright v. Campbell 912
Argoll V. Cheney 1627
Arguello v. Edinger 909
649
TABLE OF CASES.
Argus Co. V. Albany
883
Atkins V
Elwell
1170
Arison v. Kinnaird
429
V
Halton
639
Armory v. Delamirie
1264, 1266
V
Hatton
197
Armstrong v. Boylan
122, 136
V.
Horde
1249
V. Burrows
937, 977
V.
Humphreys
177
V. Caldwell
1345
V.
Ld. Willoughby de Broke 197
V. Den
726, 727
V.
Meredith
155
V. Fahnstock
837
V.
Plympton
698, 1124
V. Farrar
1192
V
State
524
V. Hewett
197, 639
V.
Tredgold
1201
V. Huffstutter
555
V.
Young
909
V. Kattenhorn
856
Atkinson
V. Allen
797
V. McCoy
1016
V. Atkinson
314
V. McDonald
216
V. Blair
920
V. U. S.
317
V. Cummins
942, 986
Arnold v. Arnold
395, 786
V. Fosbroke
490
V. Bank
21
V. Graham
48, 256
V. Brown
837
V. Scott
1050
V. Cord
908
V. St. Croix
702
V. Frazier
109
Atlantic Dock Co. v. Leavitt
L039, 1143
V. Gore
262
u. Mayor
773
V. Grimes
774
Atlantic R. R. Co. v. Bank
937, 948
V. Norton
41, 1295
Attleboro v. Middleboro
357, 1362
u. Nye
568
Atty. Gen. v. Ashe
150
V. Smith
6S
V. Boston
941
Arnot V. Beadle
758
V. Bowman
47
Arnott V. Redfern
801
V. Brazenose College 941
Arrington v. Porter
906
V. Briant
604
Artcher v. Zeh
877, 883
c. Chambers
1342
Arthur v. Gayle
1151
V. Clapham
941
, V. James
1090
V. Drummond 941
, 949, 963,
Artz V. Growe
912
998
Arundel v. Holmes
742
V. Ewelme Hospital
1348
Arundell v. Tregono
776
V. Grote
937
Ashby V. Bates
356, 357
V. Hitchcock
561
Ashcom V. Smith
995
V. Hospital
1347
Ashcroft V. Morriu
870, 873
V. Kohler
218
Ashe V. Lanham
1318
V. Lambe
755
Asher v. Whitelock
1333
V. London
755
Ashford v. Robinson
869
V. May. of Bristol
941
AshhurstK. Mill
1022
V. Meeting-house
1352
Ashland v. Marlborough
268, 509
V. Murdoch
941
Ashley v. Martin
21, 338
r. Parker
941
Ashlock V, Linder
1090
V. Parnther
402, 1253
Ashmore v. Hardy
1099, 1120
V. Radloff
47, 535
V. Towing Co.
1180
V. Ray
184
Ashpitel V. Sercombe
1131
V. Shore
937
Ash ton V. Parker
464
V. Sidney Sussex Coll. 941
Ashton's case
385
V. Sltwell
912
Ashwell V. Retford
961, 969
V. St. Cross Hospital 941
Ashworth v. Carleton
1002
V. Stephens 234,
236, 1077,
V. Kittredge
665
1142,1143
Aspden v. Nixon
760, 785
V. Theakstone
671
Astor V. Ins. Co.
961
u. Thompson
755
Atchison R. R. v. Blackshire
292
V. Whitwood Local Board
V. Commis.
758
752
Atchison o. Troy & Boston
R. R.
V. 'Wilson
377
Co.
761
V. Windsor 1264,
1266, 1348
Atchley v. Sprigg
Atherfold v. Beard
1298, 1299
745, 747
Atwater
V. Clancy
V. Schenck
444
317
Atherton v. Til ton
259
Atwell V
Appleton
1026
Athlone Peerage
653
V
Lynch
151, 175
Athlone's Claim
653, 654
V
Miller 155
, 175, 1070
650
TABLE OF CASES.
Atwell V. Milton
820
Babbett v. Young
951
V. "Welton 395
396, 545, 566
Babcock v. Babcock
572
V. Winterport
65
V. Bank
509
Atwood V. Cornwall
175
V. Camp
784
V. Impson
563
V. Deford
1026
V. Lucas
875
V. Wyman
908,1031,1032
V. Meredith
509
Baber v. Rickart
1290
V. Small
1017, 1084
Baboo Gunesh Dutt v.
Mugneeram
Attwood V. Fricot
644
Chowdry
356
V. Taylor
828
Bach V. Cohn
1226
Aubert v. Wash
1336, 1363
Bachelder v. Nutting
151
Augur Co. V. Whittier
129, 153
Backenstoss v. Stabler
969, 1051
August V. Seeskind
1050
Backhouse v. Bonomi
1345
Augusta V. Winsor
654, 688
V. Jones
21,173
Augustien v. Challis
61
Backman v. Killinger
1215
Auld V. Walton
415
Bacon v. Charlton
268
Ault V. Zehering
100
u. Chesney
1212
Aurora v. Cobb
529, 563
V. Towne
47, 53
Aurora City v. West
782, 784, 840
V. Vaughn
240
Austin V. Austin
1302, 13S3
V. Williams
715, 718
V. Bailey
1331
Baddely v. Mortlock
52
V. Boyd
622
Badger v. Jones
923
V. Chambers
1084
V. Story
392, 1156
V. Chittenden
1175, 1179
Badlam v. Tucker
875
V. Craven
1066
Bagley v. Birmingham
1215
V. Evans
377
V. Blackman
887
V. Guardians of Bethnal Green
V, McMickle
129, 132
694
V. Morrill
945
V, Howe
826
Bagot V. Williams
788
u. Jordan
1354
Baildon v. Walton
1105
V. Kinsman
948, 1044
Bailey, ex parte
1308
V. Eumsey
178, 726
Bailey v. Appleyard
1349
V. Sawyer
970, 1051
V. Blanchard
1190
V. State
529, 550
V. Barnelly
592
V. Thompson
156
V. Bussing
823
V. Townes
690
V. Clayton
1155
V. Wilson
123
u. Edwards
1061
Autauga Co. v. Davis
259, 512
V. Hammond
1279
Avary v. Searcy
510, 668
V. Hyde
53
Aveline v. Whisson
865
V. Ins. Co.
814
Avcrett v. Thompson
315
V. Johnson
137
Averitt v. Mun-ell
1294
V. Kilburn
1149
Avery v. Avery
243
V. Kimball
837
V. Clemons
1162
V. McDowell
288
V. Police Jury
444
V. New World
1336
V. Stewart
961
V. Ogden
871, 875
V. Stiles
953
V. Poole
510
Aveson v. Kinnaird
268, 269
V. K. R.
920
Axers v- Musselman
1278
V. Smock
906, 1017
Ayer v. Sawyer
248
V. Snyder
945
Ayliffe V. Tracy
882
V. Sweeting
872
Ayres v. Bane
1124
V. Taylor
629
V. Grimes
740
V. Wakeman
1100, 1163 a
V. Ins. Co.
838
V. White
945
». Novinger
980
V. Woods
177, 1136
t. Watson
1139
Bain v. Case
639
V. Clark
175
V. R. R.
316
B.
V. Wilson
276
Bainbridge v. Wade
1044
B. V. J.
53
Baird v. Cochran
537
Babb V. Clemson
516
V. Morford
'361
Babbage v. Babbage
464, 483
Baisch v. Oakeley
661
1031
TABLE OP CASES.
Bakeman v. Rose
506, 562
Baker v. Baker
548, 559, 698
V. Blackburn
977
V. Briggs
1199 a
V. BriU
65
V. Dening
696, 889
V. Dewey
1088
V. Ferris
920
V. Gregory
1062
V. Griffin
268
V. Haines
714
V. Haskell
1156, 1165
V. Higgins
920, 921, 1014
V. Ins. Co.
1064, 1365
V. Jordan
969
V. Joseph
555
t).-Lane
490
V. Lyman
21
V. Mygatt
326, 714
v. Eay
1265
V. K K.
593, 606
v. Squier
708, 713
V. Stackpoole
1196
V. Stinchfield
788, 789
V. Stonebraker
796
V. Talbot
942
V. Vining
903, 1035, 1037
Bakewell's Patent, in re
1320 a
Balbee v. Donaldson
1273
Balcli V. Onion
979
Baldey v. Parker
874, 875
V. Turner
875
BalJiner v. Ritchie
154
Baldwin v. Bank
1062
V. Buflfalo
356
V. Dunton
931
u. Gray
V. McCrea
1250
774, 784
V. Parker
427
V. R. R.
253
V. Soule
32
V. State
451
V. "Walden
619
V. Winslow
937
Balfour v. Chew
99
Ball V. Bank
123
V. Dunsterville
634
V. Gates
678
V. Loreland
537
Ballantine «. White 431, 487, 718, 719,
1032
Ballard v. Bond 864
V. Lockwood 508
V. Perry 739
V. Way 636
Ballew )'. Clark 1253
Ballinger v. Davis 696, 726
V. Elliott 389
Ballon V. Jones 1039
V. Tilton 471
Balls V. Westwood 1149
Baltimore City R. R. v. McDonnell 1081,
1208
652
Bait. R. R. V. Christie
1175
V. State
667
V. Thompson
444, 504
V. Woodruff
43
Bait. St. Co. V. BroAvn
1019, 1070
Bait. & 0. R. R. u. Pitzpatrick
359
V. Gallahue
1175
V. Glenn
300
V. Woodruff
360
Baltazzi v. Ryder
1258
Baltimore & Susquehanna R. R. Co.
V. Woodruff 40
Baltzen v. Nicolay 901
Bamfield v. Massey 50, 51
Banbury Peerage case 367, 1298, 1299
Bancroft v. Grover 949
V. Winspear 788
Bandon v. Becher 797
Bane v. Detrick 931
Banert v. Day 201, 213, 221
Banet v. R. R. 1068
Banfield v. Parker 265, 269
V. Whipple 685
Bangor v. Brewer 1097
V. Brunswick 265
Bank v. Cooper 251
V. Crary 866
V. Culver SIS, 1127
V. Davis 1175
u. Donaldson 830
V. Douglass 632
V. Eyer 1023
V. Fordyce 64, 991, 1019, 1026
V. Galbraith 945, 1028
V. Hogendobler 667
V. Hopkins 783
V. Kennedy 262
V. Kent 1061
V. Mersereau 590
V. Nias 765, 803
V. PuUen 833
V. Steward 1175
V. White 1031
V. Woods 61, 123
V. Wollaaton 294
Bank Col. v. Patterson 694
Bank of Albion v. Smith 1059
Bank of Alex. v. Mandeville 819
Bank of Augusta v. Earle 336, 338
Bank of Australasia v. Nias 801
Bank of Commerce v. Bank "64
V. Barrett 626
u. Mudgett 123,708,
713
Bank of Hindostan v. Smith 627
Bank of Hindustan v. Alison 1155
Bank of Ky. o. Goodale 123
... Sch. Bk. 694
V. Todd 175
Bank of Lancaster v. Whitehill 714
Bank of Louisiana v. Bank of New
Orleans 1142
Bank of Met. v. Bank 298
TABLE OF CASES.
Bank of Middlebury v. Rutland 733
Bank of Mobile ti. King 123
Bank of N. A. v. Hooper 950, 951,
1061
Bank of Newburg v. Baldwin 1062
Bank of Newbury v. R. R. 294
Bank of North. Liberties v. Davis 500,
549, 1180
Bank of Orleans v. Barry 1301
Bank of Penns. u. Haldeman 712, 719
Bank of Rochester v. Gray 123
Bank of Saline v. Henry 534, 536
Bank of St. Mary v. Mumford 1061
Bank of Tennessee v. Cowan 518
Bank of U. S. a.'Benning 78
b. Brown 1048
V. Carrington 1035
V. Daudridge 166, 694,
1302, 1315
V. Davis 1173
V. Donally 962
u. Dunn 939, 1044, 1170
t, Higginbottom 1059
V. Lyman 1194, 1197
V. Macalester 510
V. Smith 123
Bank of TJtica v. Hillard 377, 746
Bank of Vergennes v. Cameron 1196
Bank of Woodstock v. Clark 262
Bank Prosecutions 140
Banks v. Bales 1318
V. Johnson 838
V. Ogden 1342
V. Sharp 819
Bannatyne v. Bannatyne 1254
Baptist Ch. v. Bigelow 863
V. Ins. Co. 507
Baptiste v. De Volunbrum 300
Barbank v. Gould 1042
Barbat v. Allen 428, 464
Barber v. Brace 1070
a. Britton 1170
V. Holmes 648
V. Lamb 801
V. Lyon 1267
u. Merriam 268, 441
V. State 483, 539
V. Terrell 723, 1164, 1165
V. Wood 378
Barbour v. Watts 99
Bardeu v. Keverberg 35
Barelli v. Lytle 1284
Barert v. Day 120
Barfield v. Price 1017, 1020
Bargaddie Coal Co. v. Wark 576, 585
Barger v. Hobbs 785, 788, 988
Barhyte v. Shepherd 63
Baring v. Clagett 803, 814
u. Clark 1170, 1173
V. Harmon 294
Barington v. R. R. 661
Barker, ex parte 810
Barker v. Bradley 1015, 1044
Barker v. Bushnell
V. Cleveland
V. Coleman
V. Comins
V. Dixie
V. Fogg
V. Keete
V. Ketchnm
V. Kuhn
1090
779, 780, 790
512, 513
512
428
640
979, 1312
123
479, 576
V. N. Y. C. R. R. Co. 516
V. Prentiss 927, 930, 1059, 1060
Barkley v. Lane 1033
Barkman v. Hopkins 289, 310
Barkworth v. Young 872, 882
Barnard v. Adams 961
V. Campbell 1143
V. Flinn 490
V. Henry 1175
V. Kellogg 937, 959, 961, 962,
965, 971, 972
V. Macy 1191
U.Pope 1165
Barnawell v. Threadgill 366
Earned v. Earned 1360
Barnes u. Allen 1103
V. Bartlett 1C22, 1028, 1029
V. Camack 429
V. Harris 581, 587
V. Ingalls 445, 512
V. Jennings 1303
V. Mawson 187
V. Simmons 1131
V. Trompowsky 726
V. Vincent 811
Barnet v. Dougherty 903
V. Offerman 1060
Bamett v. Allen 975
V. Brandao 298, 331
V. People 177
V. Steinbach 476, 679
w. Tugwell 1280
Barney v. Brown 875
V. Patterson 802, 821
V. Schmeider 90
V. Worthington 1015
Barnhart v. Pettit 944
1-. Riddle 1019
Barnstable Bk. v. Ballou 1058, 1061
Baraum w. Barnum 84,203,208,1108
V. Hackett 265
Baron de Biel v. Hammersley 882
Baron de Eode's case 306,308,1157
Baron v. Placide 961 o
Barr v. Gratz 194, 733
u. Greenawalt 1217
V. Williams 1322
Ban-aclough v. Johnson 185
Barreda v. Silsbee 923
Barrel! v. Hanrick 1019, 1031
V. Trussell 853
Barrett v. Carter 1033
V. Hyndraan 879
V. Long 32
653
TABLE OF CASES.
Barrett v. Russell
V. Stow
V. Williamson
V. Wilson
V. Wright
Barron v. Cobleigh
V. Daniel
Barronet's case
BaiTows V. Bolian
V. Downs
Barrs v. Jackson
Barry v. Coorabe
V. Davis
V. Ransom
V. Ryan
Barryman u.. Wise
Barrymore v. Taylor
Barttell v. Roderick
Barthet v. Estebene
1194
939
404, 409
800
1095
1143
104
1240
1035
305, 308
810, 811
873, 901
1038
950, 952, 1015
723, 725
1153
1103
1019, 1030
920
683, 688
Bartholomew v. Farwell
V. Stephens
Bartle v. Vosburg 1028
Bartlett v. Boyd 120
V. Decreet 254, 820
V. Emerson 191, 192, 1165
V. Gas Co. 942
V. Gillard 1104
V. Hunt 135
V. Judd 981
<y. Knight 802
II. Lee 1058
V. Lewis 490
V. Mayo 1127, 1129
u. Pickersgill 1035
V. Sawyer 147
Barto V. Schmeck 881
Barton's case 1296
Barton u. Dawes 1014,1050
V. Kane 155
V. McKelway 961 a
V. Morphes 562
V. Murrian 114, 147
V. Palmes 178
V. Sutherland 356
V. Wilson 694, 735
Barwickw. Bk. 1170
V. English Joint Stock Bk. 931,
1019,1171
V. Wood 709
Baseom v. Manning 790
Basebe v. Matthews 776
Basford v. Mills 147
V. Pearson 864
Basham B. Turberville 1148
Bashaw v. State 83
Baskin v. Seechrist 63, 153
Bass V. Brooks 151
V. Chicago 360
V. Walsh 875
Bassett v. Bassett 1042
V. Marshall 60, 64, 988
V. Porter 1310
V. Spofford 678
654
Bassford v. Blakesley 590
Basshor & Co. v. Forbes 1026
Bassler v. Niesly 909
Bastard v. Smith 108
V. Trutch 1303
Basten v. Carew 813
Batchelder v. Batchelder 1090
«. Nutting 141
V. Sanborn 685
Batcheldor v. Honeywood 708
Batdorf v. Albert 1064
Batdorff v. Bank 527, 566
Bate V. Hill 50, 51
V. Kinsey 580, 1268
Bateman v. Bailey 259, 262
V. Phillips 870
V. Roden 924
Bates V. Barber 562, 565
V. McCuUy 100
V. Moore 883
V. R. R. 693
V. Spooner
V. Todd
V. Townley
Bath V. Bathersea
Bathe v. Taylor
Bathgate v. Haskin
Batre v. Simpson
Batterman v. Pierce
Battey v. Button
Battherns v. Galindo
Battles V. Batchelder
V. HoUey
Batton V. Watson
Batture v. Sellers
Bauerman v. Radenius
Baugh V. Cradocke
V. Ramsey
Baugher v. Duphorn
Baum V. Clause
Bauman v. James
789, 795, 799
1070
800, 1099, 1119
1103, 1105
626
1184
240
1015
789
421
265
1354
900
920
1207
587
1058
393
567
617, 872
Baumgardner v. Reeves 123
Baxley v. Linah 96
Baxter v. Abbott 451, 512. 572
V. Baxter 1220
V. Brown 864
V. Dear 768
V. Ellis 1165, 1331
V. Greenleaf 1042
V. Ins. Co. 814
V. Knowles 429
V. R. R. 431
V. Willey 1031
Bay V. Cook 683
Bayless v. Estes 572
Bayley v. Bryant 1212
V. Buckland 764, 797
V. Griffiths 490
V. Nantwich 1323
V. Wilkins 1243
V. Wylie 827, 833
Bayliffe v. Butterworth 298, 1243, 1250
Baylis v. A. J. 1006
TABLE OP CASES.
Baylis v. Dinely
1272
Beaubien v. Sicotte 451,
524, 551, 1009
V, Lawrence
1263
Beauchamp v. Mudd
288, 835
V. R. J.
956
V. Parry
1163, 1163 a
Baylor v. Dejarnette
821
V. Winn
1241
V. Smithers
553
Beaufort v. Ashburnham
380
Bayly v. Chubb
287
V. Neald
1147, 1170
Baynton's case
346
V. Smith
194, 636, 833
Bazeley v. Forder
1257
V. Swansea
941
Beach v. Bank
574
Beaumont v. Brengeri
875
V. Denniston
449
V. Fell
992, 1008
V. Endress
1362
V. Keim
895, 900
V. R. R. 76,
617, 1016, 1128
V. Mountain
294
V. Sutton
1124
V. Perkins
712
u. Wheeler
1100
Beaupland v. McKean
1142, 1148
V. Wise
1165, 1199 a
Beauvais v. Wall
640, 953
V. Workman
319
Beaven v. McDonnell
30, 35, 173
Beachboard v. Luce
151
Beaver v. Taylor
240
Beal V. Alexander
490
Bechervaise v. Great Western Rail-
V. Bird
743
way Co.
490
i;. Blair
942
Beck V. Garrison 945, 1019, 1028
V. Nichols
550
V. Phillips
865
V. Robeson .
53
Beckett v. Howe
888
Beale v. Com.
1305
Beckham v. Drake 862
931, 950, 951,
V. Pettit
238
1061
V. Sanders
855
V. Osborne
1108
Beale's case
401
Beckley v. Newcomb
985
Beall V. Barclay
1165
Beckman v. Shouse
364
V. Beck
770
Beckwith v. Benner
589
V. Leverett
1301
V. Man. Co.
123
V. Pearee
758
V. Sydebotham
444, 452
V. Poole
141, 930
Becquet v. MacCarthy
801
Beals V. Lee
931
Bedell v. Carll
1362
V. Merriam
357
V. Chase
482
Beam v. Link
601
V. In«. Co.
1190
V. Macomber
1259
V. R. R.
446
Beaman v. Buck
909
Bedford v. Han. & St. Jo. R. Co. 40, 360
V. Russell
629
V. Kelly
980
Beamish, in re
1278
V. Lopes
199
Bean, in re
464
Bedford Railroad Co. u. B
owser 1068
Bean v. Briggs
300, 314
Beebe v. De Baun
555, 1082
V. Smith
644
V. Tinker
550
Bear v. Trexler
688
Beech v. Jones
525
Bearce v. Jackson
670
Beecher v. Denniston
448
Beard's Succession
1042
V. Major
1035
Beardman v. Wilson
857
V. Parmele
1156
Beardslee v. Richardson
1102
Beeckman v. Montgomery
1120
V. Steinmesch
1173
Beedy v. Macomber
237
Bcardsley v. Wildmau
551, 561
Beekman v. Bigham
923
Beardsly v. Foot
395
Beeler v. Bullitt
767
Beardstown v. Virginia
356, 368
V. Young
77, 835
Bearss v. Copley
Beasley v. Watson
444, 537
Beeldey v. Newcomb
764, 797
953
Beer v. Ward
704
Beasney's Trusts, in re
1274
Beers v. Beers
1019, 1050
Beatcs v. Retallick
153, 657
V. Jackman 346,
676, 872, 1127
Beatstone v. Skene
604
Beeve v. Fleming
785
Beattie v. Hilliard
130, 726
Beirne v. Dord
959
Beatty V. Davis
1207
Bekley v. Munson
920
V. Pishel
366
Belbin v. Skeats
729
V. Knowles
294
Belcher v. M'Intosh
356
V. Michon
1348
Belden v. Meeker 810,
811, 824, 1278
V. Randall
837
V. Seymour
780, 1042, 1044
Beaubien v. Parsons
383, 529
Belknap v. Trimble
1350
V. Portland Co.
359
Bell V. Andrews
864
655
TABLE OF CASKS.
Bell V, Ansley
V. Bank
V. Barnet
V. Bell
V. BiTien
V. Bmmby
V. Davis
V. Fothe'rgill
V. Frankis
0. Hartman
V. Hearne
V. Howard
V. Kennedy
u. McCawley
V. Morrisett
V. Prewitt
V. Keed
V. Einner
V. State
V. Troy
V. Utley
V. Woodman
V. Woodward
V. Young
Bellas V. Leran
1213
123
335, 338, 339
420
276
942
620, 1134
900
1265
1017
136, 1265
906
1284, 1285
732, 740
510
529
363
403
491
514, 515
1064
920
944, 1157
1284
1338
Bellefontaine R. E. v. Bailey 444
V. Hunter 1180
Bellinger v. Burial Soc. 1039
Bellis, in re 576, 578
Bellows V. Copp 740
V. Steno 1028
V. Todd 108, 114
Bellwood V. Wetherell 490
Belmont v. Coleman 761
Belohradsky v. Kuhn 1038
Beloit V. Morgan 840
Belton V. Pisher 99
Beltzhoover v. Blackstock 678
Bemis V. Becker 60,415
V. McKenzie 314
Ben V. Peete 141
Benaway v. Conine 491
Benbow v. Eobbms 1349
Bench v. Merrick 52
Bender v. Bender 864
V. Pitzer 191, 669
Benedict v. Cutting 826
D. Heineberg 828
V. Lynch 1048
V. Miner 622
BenforiJ v. Sanner 76, 1200
V, Schell 875
V. Zanner 1128, 1217
Benham v. Dunbar 1290
V. Newall 974
Benjamin v. Coventry 584
V. Hathaway 833
V. Wheeler 551
Benkard v. Babcock 439
Bennett v. Blain 864
V. Brumfitt 889
V. Burch 545
V. Clemence 507
656
Bennett v. Fail 441, 512
V. Fulmer 739
V. Hartford 602
V. Holmes 1177, 1180, U 94
V. Hyde 47, 50, 53
V. Judson 1170
V. Lambert 967
o. Libhart 1273
V. Marshall 997
V. Matthewes 714, 719
V. McWhorter 1260
V. O'Byrne 555
V. Peebles 1026
V. Pierce 944
V. Pratt 869
V. Eobinson 723
V. Scutt 866
V. Solomon 1045
V. State 336, 395
V. Watson 385
Bennifield v. Hypres 431
Benninghoofv. Finney- 642
Benoist v. Darby 252
Bensel v. Lynch 828
Benson v. Benson 894, 900
V. Griffin 441
V. Huntington 514
V. Olive 177, 1274
Bent V. Cobb 868, 873
V. Smith 487
Bentall v. Burn 875
V. Sidney 108
Bentham's Trust, in re 1277
Bentley v. Mackay 1022, 1145
V. Ward 520, 682, 683, 685
Bently v. Hallenback 688
Benton v. Burgot 802
V. Craig 141
V Jones 1031
V. Martin 1059
V. O'Fallon 793
V. Pratt 901
Benyon v. Littlefold 935
Benziger t>. Miller 1136
Berckmans v. Berckmans 433
Bergen v. People 178
Bergman v. Eoberts 1216
Berkley v. Watling 1070
Berkeley Peerage 210, 211, 214, 219, 570
Berks T. K. v. Myers 694
Berliner v. Waterloo 286
Bermon v. Woodbridge 1103, 1105
Bernardi v. Motteux 814
Bernasconi v. Atkinson 999, 1001
Bernett v. Taylor 723, 726
Berney u. Mitchell 178
V. Mittnacht 544
Bernstien v. Eicks 625
Berrey v. Lindley 8S5
Berridge v. Ward 1339
Berry v. Banner 187
V. Berry 77
V, Jourdan 522
TABLE OF CASES.
Berry v. Lathrop
1200
Bilberry v. Mobley
1165
V. Matthews
115,674
,956
Bilbgerry v. Branch
1323
V. Osborne
175
Bill V. Bament
873, 875
V. Pratt
380
V. Thomas
899
V. Reed
439
Billings V. Billings
1058
Berryman v. Wise
1315,
1317
Billingslea v. Moore
996
Bersch v. State
566
V. Ward
905
Bertie v. Beaamont
196
Billingsley v. Dean
288
Bertsch v. Lehigh Co.
944
Bills V. Ottumwa
436, 437
Besse v. Williams
860
Bimeler v. Dawson
796, 802
Bessent v. Harris
1249
Binck V. Wood
789
Bessey v. Windham
1107, 1117,
1118
Bingham v. Cabbot
114
Best V. Campbell
903
V. Cabot
120
Bethea v. McCall
153
V. Weiderwax
1044
Bethell v. Blencowe
77
Binney v. Russell
130
Bethum v. Turner
1349,
1350
Birch V. Birch
630
Bethune v. Hale
324
u. Funk
782
Belt V. Beales
194
V. Ld. Liverpool
883
Betteley v. McLeod
381
V. Liverpool
883
Bettison v. Budd
645,
1355
V. Ridgway
712
Betts V. Badger
156
Birch, in re
1320 a
u. Betts .
1220
Birckhead v. Cummings
854
V. Brown
899
Bird V. Bird
73, 130
V. Gunn
1019
V. Com.
84, 85, 87, 307
V. Loan Co.
872,
1127
V. Daggett
1170
V. New Hartford
106
V. Davis
422, 1064
V. Starr
779
V. Gammon
880
Betty V. Nail
208
V. Hueston
226
Bevan v. Hill
149
V. Inslee
1360
V. McMahou
574
V. Malzy
490
V. Waters
585
V, Miller
714, 719
V. Williams
1081,
1317
V. Randall
772
Bevens v. Baxter
292
BirdsaU v. Dunn
430
Beverley's case
1157
Birge v. Gardiner
361
Beverly v. Beverly
1274
Birkbeck v. Stafford
1188
V. Craven
109, 833
Birke v. Birke
892
V. Williams
515
Birkey v. McMakin .
1361
Bevins v. Cline
430, 431
Birkley v. Com.
385
Beynon v. Garrat
1155
Birkmyr v. Darnell
879
Shear v. Harradine
800
Birmingham v. Anderson
248
Bibb ». Thomas
894, 896
Birming. R. R. v. White
743, 750
Biceard v. Shepherd
1283
Birming., Brist. & Thames June. Ry.
Bickel V. Fasig
397
Co. V. White
746
Bickett V. Morris
1341
Birt V. Barlow 84, 653, 654, 655
Bickford v. D'Arcy
490
Bischoffu. Wethered
801
Bidden v Leeder
902
Bishop V. Bishop
866
Biddis V. James
98
V. Chambre
629
Biddle v. Ash
1350
V. Cone
642
V. Bond
1149
V. Helps
1323
Biddle Boggs v. Merced Mining Com
-
V. Howard
1259
pany
1150
V. Jones
338
Biencourt v. Parker
1348
V. Spining
452
Bierce v. Stocking
443
V. State
566, 712
Biesenthall v. Williams
289
V. Welch
466
Biffin V. Bignell
1257
V. Wheeler
528
Bigg V. Whisking
874
Bishop of Meath v. Marquis of Win-
Biggs V, Lawrence
1173
chester
194, 703, 1156
Bigelow V. Barre
799
Bissenger v. Guiteman
1060
V, CoUamore
509
BisseU V. Barry
906
V. Doolittle
1049
u. BisseU
84, 424
V. Poss
1148,
1213
V. Briggs
802, 808, 818
V. Young
141
,574
V. Cornell
505, 565
Bigler V. Eegher
583
V, Edwards
99
VOL. II. 42
657
TABLE OF CASES.
Bissell V. Hamblin
640
Blake V. Hall
923
V. Jeffersonville
1147
V. Ins. Co.
943
V. Morgan
1301
V. Knight
888
V. Pearce
115
V. Lowe
622, 684
V. West
513
V. McKusick
758
Bissig V. Britton
879
V. PQford
605
Bitner v. Brough
864
V. Russ
156
Bivens v. Brown
547
V. Swain
725
Bivins V. McElroy
1092
Blakey v. Blakey
415, 1199
Bixby V. State
545
V. Porter
742
Bizzell V. Booker
1296
Blakely v. Hampton
1019
Bk. of Australasia v. Harding
805
Blakeman v. Blakeman
1019, 1029
V. Nias
801
Blakemore v. Byrnside
1031
Bk. of Ky. V. Duncan
123
Blakeney v. Ferguson
1189
Black V. Bachelder
920
Blakeslee v. Blakeslee
909
!). Black 411,414
,43^
,864
Blanchard v. Blackstone
693, 1175
V. Camden E. R.
130
V. Hodgkins
1139
V. Lamb
1077
V. Mann
512
V. Ld. Braybrooke
104
V. Moore
931, 1021
V. li. R.
1181
V. N. J. S.
21
V. Rackman
368
V. Pratt
412
V. Ryder
482
V. Russell
311
V. Shreve
66S
,930
Blancjour v. Tutt
1199 a
V. Thornton
263
Bland v. Warren
238, 240
V. Ward
1240
Blankman v. VaUejo
414
V. Woodrow
180
Blashford v. Duncan
980
Blackburn v. Crawford 201
218
,655
Blatch 11. Archer
1266
V. HoUiday
670
Blattner v. Weis
226
Blackett v. Exch. Co.
958
Blaylock's Appeal
1038
V. Lowes
188
Bleakley v. Smith
870, 875
V. Royal Exchange Assui
Bledsoe v. Nixon
1029
Co.
959
972
V. State
290
Blackham's case
810
V. Wiley
741, 1052
Blackie v. Bidding
149
Bleeckeri). Bond
116, 122
Blackman v. Johnson
513
V. Carroll
377
Blackmore v. Boardman
1209
Blenkinsop v. Clayton
877
Blackstock v. Long
1163
Blessing v. Hape
545
V. Leidy
492
Blethen v. Dwmel
115
Blackstone v. White
135
, 136
Blevin v. Freer
1066
Blackwell v. Hamilton
693
Blevine v. Pope
136, 500, 1265
V. State
399
Blewitt V. Tregonning
573, 1349
Black River Bank v. Edwards
1044
Bligh V. Brent
864
Bladen v. Cockey
248
V. Wellesley
148
V. WeUs
1026
Blight V. Ashley
156, 1108
V. WeUs & Wife
1026
V. Fisher
389
Blagrave v. Blagrave
177
, 178
V. GoodliflFe
490, 590
Blaikie v. Stembridge
1070
Bliss V. Brainerd
368
Blair v. Greenway
981
V. Franklin
838
V. Hum
619,
1103
V. Nichols
427, 431
V. Ins. Co.
1212
V. Wilbraham
510
V. Patterson
42S
,836
Block V. Hicks
939
V. Pelham 40
, 676, 677
V. Ins. Co.
1136
V. Seaver
395
V. V. S.
108
i;. Walker
883
Blocker v. Burness
395
Blaisdell v. Briggs
987
Blodget V. Jordan
99
V. Cowell
366
Blodgett V. Hildredth
1035
Blake v. Concannon
1272
Blogg «. Kent
743
V. Coleman
62E
,927
Blood V. Fairbanks
473
V. Damon
1102
V. Goodrich
901, 902
V, Douglass
767
V. Light
981
V. Everett 237, 1166,
1160
V. Merceliott
290
V. Fash
1265
V. Rideout
263
V. Graves
262
Bloom V. Burdick
63
658
TABLE OF CASES.
Bloomer v. Spittle
1019, 1022
Boman v. Plunkett
714
Blossom V. Griffin
1015
Bonalli's case
306
V. Ludington
490
Bond V. Bank
69,72
Blount V. Riley
Blower v. Hollis
1163 a
V. Bond
931
828, 828 a
V. Bragg
123
Bloxam v. Elsie
1093
V. Clark
920
Blnck V. Gompertz
623, 743
V. Coke
969, 970
V. Rackman
335
V. Douglas
32
Blumenthal v. Roll
444
V. Fitzpatrick
1163 a
Blundell v. Catterall
1341
Bondurant v. Bank
1212
V. Gladstone
999, 1008
Bone V. Greenlee
740
Bljth V. L'Estrange
490
V. Spear
138
Boar V. McCormick
945
Boner v. Mahle
920
Board v. Misenheimer
707
Bonett V. Stowell
423
Board of Education v. Moore
147, 1131
Bonfleld v. Smith
509
Board of Public Works v. Columbia
Bonnell v. Mawha
687
College
795
Bonner v. Ins. Co.
153
Boardman v. Davidson
1021
Bonnet v. Derebaugh
248
V. Jackson
1132, 1133
Bonney v. Morrill
1026
V. Reed
185, 189
Bool y . Mix
1272
V. Spooner 875, 961, 964
Boody V. McKenney
1058, 1140
V. Woodman
47, 439
V. York
980
Bob V. State
1138
Booge V. Parsons
645, 1355
Bobe V. Stickney
784
Booker v. Booker
182
Boddy V. Boddy
27,34
V. Bowles
730
Bodine v. Killeen
1142
V. Lowry
123
Bodley v. Scarborough
251
Bookstaver v. Jayne
1060
Bodman v. Tract Soc.
998
Boomer v. Laine
828
Bodmin Mines Co., in re
282, 331
Boon Bank v. Wallace
259
Bodurtha v. Goodrich
796
Boone v. Dykes
137
Bodwarth v. Phelon
785
V. Thompson
1158
Body, in re
139
Boorman v. Jenkins
971
Body V. Jewsen
1289
Boossey v. Whitaker
696, 727
Boerum v. Schenck
758
Boot V. R. R.
363
Bogan V. Calhonn
951
Bootemere v. Hayes
863
V. McCutchen
141, 1061
Booth V. Barnum
632
Bogardus v. Clark
1252
V. Cook
147
V. Trin. Church
664
V. Hynes
1044, 1048
Bogart V. Green
63
V. Powers
622
Bogert V. Phelps
1167
V, Swezey
1165
Boggs V. Bank
123
Boothby v. Brown
501
i). Black
980
V. Stanley
629
Bogia V. Darden
464
Boothe V. Dorsey
826
Bogle's Ex'rs v. Kreitzer
563, 565
Bootle V. Blundell
729
Bogue V. Bigelow
1273
Borden v. Fitch
795, 803
Bohanan v. Shelton
' 115
V. Hays
1064
Bohannan v. Chapman
1173
V. Pray
1058
Bohun V. Delessert
1303
Borden Co. v. Barry
21
Boileau v. Rutliu 210, 838,
1119, 1190,
Bordine v. Combs
1331
1191
Borland v. Walrath
722, 1052
Boissy V. Lacon
420
Bornheimer v. Baldwin
175
Boit V. Barlow
653
Borough of York v. Foracht
823
Bold V. Hutchinson 882, 1019,
1023, 1145
Borrow v. Humphreys
382
Boles V. State
544
Borrowscale v. Tnttle
782
BoUinger v. Eckert
940
Borst V. Empie
727
Bollo V. Navarro
1157
Bosley v. Shanner
931
Bolton V. Bishop of Carlisle
861
Bostich V. Rutherford
47,53
V. Cummings
115
Boston V. R. R.
436
V. Gladstone
814
u. Richardson
836
V. Jacks
1047
u. Tileston
980
V. Liverpool
746, 754
V. Worthington
763
V. Tomlin 522. 854. 909
Boston Co. V. Hoitt
802
Bolton's Appeal
683
Boston R. R. v. Dana 259
659
571, 1137
TABLE OF CASES.
Boston R. R. v. Montgomery 1290
Bostwick V. Leach 866
Boswell V. Blackman 563, 1200
V. Otis 818
V. Smith 1336, 1363
BoBworth u. Sturtevant 1157
V. Vandewalker 1303
Botanico Med. Coll. v. Atchinson 311
Botelar v. Bell 32
Botsford V. Burr 1037
Bott V. Bnrnell 819, 833
Bottomley v. Forbes 961 a, 963
Bouchaud v. Dias 643, 840
Bouchier v. Taylor 816
Boudinot v. Bradford 895
Bonldin v. Massie 141, 142
BouUemet v. State 335
Boulter, in re 906
Boulter v. Peplow 112, 1091, 1093
Bound u. Lathrop 1199 a
Bourgette v. Hubinger 465
Bourke v. Cranberry 814
Bourne v. Boston 115
V. Gatliff 962, 963, 971
V. Ward 1044
Bousall V. Isett 795
Bovee v. McLean Co. 60, 69
Bowden v. Henderson 1274, 1275
Bowen v. Bell 1015, 1042, 1047
V. De Lattre 702, 837, 872, 11 19
V. Garanplo 466
V. Reed 334
V. Slaughter 939
Bower v. McCormick 1039, 1085
V. Smith 678, 683
Bowers v. Bowers 992
V. Hurd 1125
V. Oyster 863, 903
V. Still 1192
Bowes V. Foster 1064, 1107, 1117, 1365
Bowie V. Kansas City 294
u. Maddox 1101
V. O'Neale 177
Bowlby V. Ball 864
Bowles V. Bowles 833
V. Johnson 378
Bowley u. Barnes 1315
Bowling V. Hax 713
Bowman v. Bowman 500, 729, 730
V. Hodgson 723
V. Horsey 961 a
V. Nichol 562
V. Norton 580
0. Rostron 1085
V. Sanborn 119, 707
V. Tarr 438, 665, 666, 935
V. Taylor 1039
V. Teall 1362
V. "Wettig 154
V. Woods 665
Bowring v. Shepherd 1243
Bowser v. Cravener 210, 859, 1044, 1048
Bowshcr V. Calley 1204
660
Bowyer v. Martin
956
Boyce v. Douglas
772
V. Green
864
V. Ins. Co.
1028
V. Mooney
147
V. B. R.
43
V. Wilson
1019
1028
Boyd V. Bank
553
V. Belton
1138
V. Bolton
1138
V. Boyd
512
V. Buckingham
1318
V. Cleveland
1059
V. Com.
826
V. Foot
1132
1201
». Harris
1360
V. Ladson
681
V. Mclvor
1301
V. McLean
903, 1035
1037
0. Petrie
75
,752
V. Reed
1363
Boydell's case
1220
Boydell v. Drummond
853, 901
Boy den v. Moore
265
Boyer v. Norris
723
Boyers v. Pratt
293
Boykin v. Boykin
608
Boylan v. Meeker
1011
Boyle V. Burnett
220
V. Chambers
732
V. Colman
708
V. Mulhollaud
1005
V. Wiseman 82, 483, 535, 658
Boynton v. Kellogg 49, 52, 563
V. Morrill 785, 988
V. Rees 141
V. Twitty 1044
V. Veazie 875
V. Willard 828
Boys V. Williams 937
Bp. of Ely 746
Bp. of Meath v. L. Belfield 188
V. M. of Winchester 194,
703, 1156
Brabbits v. R. R. 437, 444
Brabin v. Hyde 872, 877
Bracegirdle v. Heald 883
Bracken v. NeiU 771
Brackenridge v. Dawson 1302
Brackett v. Edgerton 446, 513
V. Evans 141
V. Hayden 358
V. Hoitt 107
V. Mountfort 626
V. Wait 1082, 1165
V. Weeks 551
Bradbury v. Bardin 252, 1173
V. Dwight UO
Braddee v. Bromfield 569, 981
Braddey u. Anderson 1028, 1058
Bradford v. Barclay 557
V. Bk. 1021
V. Bradford 760, 1021
TABLE OF CASES.
Bradford v. Bush
549, 1108
V. Cooper
298
V. Haggerthy
1136
V. Romney
1022
V. Stevens
518
V. Union Bk. of Tennessee 1021
V. Williams 427, 1175
Bradish v. Bliss 366
Bradlee v. Glass Man. 950, 951
Bradley v. Anderson 1028, 1058
V. Arthur 297, 435
V. Bentley 920
V. Bishop 828
V. Bradley 776, 783, 838, IHO,
1274
V. Davis 518, 521
u. Dunipace 1070
V. Holdsworth 864
V. Ins. Co. 314
V. James 236
V, Johnson 785
i;. Kennedy 1246
V. McKee 357
V. Northern Nav. Co. 359
V. Pilots 941
V. Richardson 879
V. Spofford 1101
V. West 310, 312
Bradshaw v. Bennett 736
V. Hedge 123
V. Mayfield 301
V. Murphy 751
Bradsher v. Brooks 431
Bradstreet v. Ins. Co. 814, 818
V. Potter 276
Bradt v. Brooks 704
Brady v. Brady 446, 448, 466
V. Cubitt 1035
V. Oastler 1026
V. Todd 967
Bragg V. Clark 472
V. Colwell 714
V. Lorio 799
V. Massie 259, 1031
V. Bush Co. 339
Brain v. Preece 245
Brainard u. Buck 1138
V. Fowler 808, 824
Brainerd !). Brainerd 1019
V. Cowdrey 942
Braintree v. Hingham 183
Brakebill v. Leonard 1 14
Braman v. Bingham 507
Brambridge v. Osborne 1362
Bramwell v. Lucas 588, 589
Branch ». Doane 760, 764
Branch Bank v. Coleman 1060
Brand v. Abbott 265, 464
V. Brand 479, 576, 582, 877
Brandao v. Barnett 298
Brandon v. Cabiness 357, 838
V. Loftus 123
V. Morse 920, 921
Brandon v. People 483
Brandt v. Klain 585
Brandywine R. R. v. Ranck 1077
Brannin v. Poree 1 132
Brannon u. Hursell 549,1193,1199
Brant v. Coal Co. 1150
V. Ogdeu 1349
Brantly v. Swift 444
V. West 1031
Brantnell v. Foster 980
Brashear v. Martin 702
Bratt V. Bratt 1042
Brattle v. Bullard 1347, 1352
Brattle St. Ch. v. Bullard 1349
Bratton v. Clawson 1050
Brawdy v. Brawdy 909
Brayley v. Ross 175
Brazelton v. Turney 262
Brazier v. Burt 262
V. Jones 824
Brazill II. Isham 765,1110
Breadalbane case 1274, 1297
Breck v. Cole 977, 1015
Breckenridge v. Waters 1354
Bredin v. Bredin 1205
Bree u. Holbrook 1 1 73
Breed v. Pratt 1253
Brehm v. R. R. 454
Breinig v. Meitzler 545, 682
Breman's case 300
Brembridge v. Freeman 300, 302
V. Osborne 1362
Brenchleyt). Still 888
Brennan v. Moran 973
V. People 412, 511
Brent v. Bank 1058
V. State 1241
Brest V. Lever 1333
Breton v. Cope 662
Brett V. Beales 187, 294, 199
V. Catlin 412
Bretz V. Mayor 293
Brewer v. Brewer 262, 1156
V. Ferguson 429
V. Knapp 1362
V. Porch 549
Brewster v. Brewster 1058
V. Dana 1059
V. Doane 240, 661
V. Sewell 60, 129, 141, 146, 148
V. Silence 869
Brice v. Smith 1312
Briceland v. Com. 357
Bricker v. Lightner 451 , 545
Bridge v. Eggleston 1167, 1204
V. Gray 789, 1196
V. Wellington 492
Bridges V. Thomas 135
Bridgewater v. W. Bridgewater 641
Bridgman v. Jennings 670, 1156, 1160
Bridwell v. Brown 933
Brier v. Woodbury 64, 983
Briggs V. Dorr 1112
661
TABLE OF CASES.
Briggs «. Lafferty 516
V. Mackellar 376
V. Munchon 950
V, Rafferty 661
V. Taylor 357, 553, 1315
V. Wilson 229, 1135
Brigham v. Coburn 151
V. Meed 1068
V. Palmer 725
V. Peters 1183
Bright V. Carpenter 1061
V. Coffmau 1140
V. Legerton 238, 241
V. Wallier 1351
V. White 66, 289
V. Young 153
Brightman v. Hicks 905
Brighton Bank v. Philbriek 141
Brighton Railway Company v. Fair-
dough 1313
Briles v. Pace 864
Brill V. Flagler 448, 452, 510
Brimhall v. Van Caimpen 288, 314
Brindle v. Mcllvaine 785
Brine v. Bazalgette 47
Bringloe v. Goodson 725
Brink V. Spaulding 122
Brinkerhoffw. Olp 944
Brinkley v. Brinkley 808
Brinley v. Spring 875
Brinsmead v. Harrison 771, 773
Brintnall v. Foster 980
Brioso V. Ins. Co. 933
Brisbane v. Davies 1017
Brisco V. Lomax 44, 187, 188, 200, 794
Briscoe v. Stephens 795
Brister v. State 840
Bristol Knife Co. v. Bank 1173
Bristol V. Tracy 436
V. Warner 1108
Bristow V. Brown 952, 1061
V. Sequeville 306
Brit. Emp. Ass. Co. v. Browne 873
British Lin. Co. v. Drummond 316
British Prov. Ass. Co., in re 1314
Brittain v. Kinnaird 813
Britton v. Dierker 624
V. Lorenz 576, 587
Broad v. Pitt 597
Broaders v. Toomey 357
BroadwcU o. Getman 883
V. Stiles 626, 627
Brobston v. Cahill 713
Broeas v. Lloyd 381, 382
Brock V. Cook 909
V. Headen 740
V. Milligan 395
V. Savage 1352
V. Saxton 723
V. Sturdivant 1022
Brockbank v. Anderson 492
Brockett v. Bartholomew 549
Brodie v, Brodie 1097
662
Brogy V. Com. 177, 178
Bromage v. Prosser 1263
V. Rice 712
Bromley v. EEiott 920
Bronson v. Bronson 414, 431, 433, 478
Brotherline v. Hammond 1273
Brothers v. Higgins ' 758
Broughton v. Blackraan 337
V. Mcintosh 789
Brouker v. Atkyns 664
Brower v. Browers 84
u. Hughes 469
Brown v. Abell 1031
V. Allen 1028
V. Armistead 1029
V. Austin 140, 142
V. Balde 980
V. Bank 320, 661, 1131
V. Batchelor 1044
V. Bellows 549, 556
V. Bowen 1148
V. Bridge 8U
V. Brightman 466, 469
u. Brooks 834, 961, 1066
c/. Brown 90,138,466,467,474,
553, 899, 995, 996, 1332
V. Bulkley 366
V. Burdick 66
V. Burnham 1284, 1289
V. Burrus 550
V. Byrne 961, 1070
V. Cady 115
w. Com. 177,180,514
V. Connelly 1302, 1308
V. Corey 447, 450
V. Cummings 40
V. Dayy 142
V. Day 1352
V. Eaton 868
I'. Edson 99
V. Elms 339
V. Foster ■ 364, 577, 588, 589
V. Freeland 1250
V. Galloway 122
V. Getchell 390
V. Gill 1302
«. Gilman 1030
V. Goodwin 50
V. Guice 956
u. Hathaway 826
II. Hicks "26
V. Holyoke 906, 1017, 1019
V. Hiiger 945
V. Ins. Co. 1172
V. Isbell 155
V. Jewell 61, 589, 838.
V. Johnson 100, 771
V. Jones 909
\ V. Kennedy 833
V. Kimball 727, 739
V. King 1284
V. Kings) ey 542
V. Leeson 283
TABLE OF CASES.
Brown v. Lester
V. Littlefield
V. Lunt
V. May
V. McGraw
V. Metz
V. Molyneaux
V, Mooers
u. Hunger
V. Nichols
V. Osgood
V. Parker
V. Parkinson
V. Phelon
V. Philpot
V. Pinkhara
V. Piper
V. Providence
V. E. R.
V. Eeed
V. Eiolimond
V. Saltonstall
V. Sanborn
V. Shock
V. Sprague
512
820
1046
833
1163, 1164
1273
1020
175, 267, 569
619
796
549
1061
1205
629
356
623
282, 335
90, 448
361, 448
626
135
992
866
33, 1265
783
V. State 397, 527, 529, 776
V. Stewart 952
V. The Independent 122
r. Thornton 316,755
V. Thurston 970
V. Tucker 147
V. Turner 1266
V. U. S. 305
u. Wales 754
V. Wheeler 1148
V. Wiley 1058
V. Willey 945
V. Wood 130, 137, 549, 733, 1303
V. Woodman 72, 74
V. Wright 63, 820
Browne v, Collins 467
V. Davis 632
V. Gisborne 384
V. U. S. 305
Brownell v. E. E. 268
Brownfield v. Brownfield 942, 992
Browning v. Aylwin 742
V. Hanford 828, 833
V. R. E. 446, 513
V. Skillman 257
Brooke v. Kent 898
Brookfield v. Warren 220
Brooking v. Dearmond 120
Broolss V. Acton 175
V. Aldrich 944
V. Crosby 393
V. Daniels 96, 640
V. Day 123
V. Dent 1214, 1215
V. Duffield 887
V. Goss 516
V. Hartman 693, 1045
i>. Isbell 1092
Brooks V. Mobile
980 a
V. Somerville
361
V. Tarbell
466
V. Walker
1302
V. Winters
21
Brookshire v. Brookshire
1018
Broome v. Wooton
773
Broyles v. State
1138, 1139
Brubacker v. Taylor 109, 481, 484, 500,
1360
Bruce v. Bonney 1019
V. Orews 708
V. Davenport 932
V. Garden 1123, 1133, 1140
V. Holden 833, 1319
u. Nicolopulo 82, 264, 1306
V. Priest 55
V. U. S. 115, 1039
V. Wait 331
V. Wright 1059
Brucker v. State 325
Bruin v. Knott 331
Brummagira v. Ambrose 781
V. Bradshaw 527
Brummel v. Enders 1061
Brundred v. Del Hoyo 671
Brune v. Thompson 234, 339, 941
Brunswick v. Harmer 69
Brunt V. Brunt 900
Brunton's case 52
Brush V. Taggart 63
V. Wilkins 308
Bruton v. State 571
Bryan v. Beckley 335
V. Forsyth 127, 638
V. Gurr 53
V. Hunt 902
V. Walsh 1050
V. Walton 557
u. Wear 115
V. Winwood 45
Bryant v. Crosby 866, 1031
V. Dana 1026
V. Glidden 509
V. Ingraham 21
V. Lord 1103
V. Stillwell 61
Bryce v. Butler 1205
V. Ins. Co; 933
Brydges w. Walford 1155
Bryket v. Monohan 47
Bryne v. Perre 178
Bubson V. People 796
Buccleugh V. Metropolitan Board of
Works 599
Buchanan v. Atchinson 514
y. Baxter 980
U.Collins 1127,1177
V. Moore 669
V. Rowland 1360
V. Whitham 339
Bucher v. Jarratt 78, 160
Buck V. Appleton 931
663
TABLE OF CASES.
Buck V. Ashbrook
V. Pickwell
V. Pipe
Backell v. Bleakhorn
Bnckhonse v. Crossly
Buckingham v. Burgess
V. Hanna
Bnckinghouse v. Gregg
Buckland v. Johnson
Buckle V. Knoop
431
866
1035
884
906
1200
821
315, 324, 339
729, 772, 787
958, 961, 961 a, 1243,
1250
Buckley v. Beardslee
V. Bentley
V. Leonard
Buckley's Appeal
Bucklin v. State
Buckmaster v. Carlin
V. Harrop
Bucknam v. Bamum
Bucksport V. SpoSbrd
Buel V. Miller
V. K. E.
Buffiim V. Harris
V. R. R.
Buford V. Hickman
V. Tucker
Bulkley v, Redmond
Bull V. Griswold
V. Lamson
V. Loreland
V. Talcott
BuUard v. Lambert
V. Fearsall
BuUen v. Michel
V. Runnels
Bullis V. Montgomery
Bullock V. Koon
V. Narrott
V. Wallingford
Bulmer v. Norris
Bumpass v. Taggart
V. Timms
V. Webb
Bumpus V. Fisher
Bunbury v. Brett
I'. Bunbury
Bunce v. Beck
Bundy v. Hart
Bunell V. North
Bunker v. Green
V. Rand
V. Tufts
Bunnell v. Butler
Bunse v. Agee
Buntin w. Duchane
Bunting v. Allen
Burbank v. Ins. Co.
Burbridge v. Robinson
Burchfield v. Moore
Burckmyer v. Mairs
Burdick v. Hunt
V. People
Burdine v. Lodge Co.
664
869
1014, 1058
41, 1295
1046
563, 569
982
910
1198, 1200
740
906, 908, 1017, 1019
1296
444, 507
447, 450
97, 324, 830
335, 338
899, 900
866
516
377
1068
545, 565
549, 550
195
23, 1349
1164
388
366
120
864
697
629
820
366, 1248
1163
582
920
314
81
1165
1302
779, 784
505, 565
1021
223, 1278
1125
1184
754
626
1158
524, 553, 601, 712
483, 539
294
Burdit V. Burdit
Burford v. Kersey
V. McCue
Burge V. R. E.
Burgess v. Clark
V. Lane
V. Lloyd
V. Warehajn
Burghart v. Angerstein
V. Brown
V. Turner
Burgin v. Chenault
Burgoyne v. Showier
Burhans v. Johnson
Burk V. Tregg
Burke v. Anderson
V. Haley
V. Hammond
V. Miller
V. Miltenberger
V. E. E.
V. "Wolfe
Burke's Est.
Burkholder v. Casad
o. Plank
Burleigh v. Cloiigh
Burlen v. Shannon
Burleson v. Burleson
V. Goodman
Burlew v. Hubbell
Burling v. Paterson
Burls V. Burls
Burnett v. Burkhead
V. Garnett
r. Hendei-son
I'. Phalon
V. Smith
V. Thompson
Burney v. Ball
Burnham v. Ayer
V. Ellis
V. Hatfield
V. Kempton
V. Morissey
V. R. R.
ii. Sweatt
( . Webster
V. Wood
Burnley v. Stevenson
Burns v. Jenkins
!'. McCabe
Burnside v. R. R.
Burr !'. Byers
V. Galloway
V. Harper
V. Ins. Co.
V. Ross
V. Sim
V. Todd
Buit's Trial
Burrell v. Root
1044
788
1273
1017
1097
1200
980
1209
655, 1187
527
736
732
888
1068
106
1021
868
1349, 1352, 1357
729, 1200
297, 307, 338
43, 360
431
682
1144
1165
719
995
785
942
678
1289
732, 739, 739 a,
1359
139
1217
490
336
542
790
670, 729
524, 1274
798
1175
601
1350
377
1131, 1173
1200
802, 803, 1301
130, 979
808
1050
1205
1174
678
1347
717
944
290
1274, 1276
864
382
873
TABLE OF CASES.
Burrell v. State
569
Buttemere v. Hayes
863
Burrill v. Bk.
694
Butterworth v. Crawfoot
1346
Burritt v. Dickson
1243
Buttram v. Jackson
269, 834
Burroughs v. Hant
819
Buttrick v. Allen
110
V. Martin
522, 523
V. Holden
760
V. R. R.
360
Butts V. Francis
833
Burrows v. Guthrie
800, 1191
V. Swartwood
395
V. Stevens
1133
Buxton V. Cornish
61
Burson v. Huntington
180
V. Rust
872
Burt V. Gwinn
515
Buzzell V. Snell
357
V. McKinstry
1165
V. Willard
1026
V. Palmer
1177
Byam v. Booth
827, 833
V. Sternburgh
988
Byass v. Sullivan
533, 751
V. Walker
726
Bybee v. Hageman
942
V. Wigglesworth
448
Byers v. Danley
1035
Burtenshaw v. Gilbert
898, 900
Byington v. Allen
645, 1355
Burtness v. Kevan
931
V. Oaks
677
Barton v. Blin
1243
Byne v. Harvey
155
V. Driggs
80, 134, 138
Byrd v. Odem
909
V. Ehrlich
980
Byrket v. Monohon
1246
V. Issit
1196
Byrne v, Boadle
357
V. March 47,
50, 80, 130, 140
V. Frere
178
V. Mason
357
V. Grayson
1044
V. Plummer
521, 522, 525
V. McDonald
466
V. Scott
1252
V. Schwing 1064,
1133, 1365
V. Wilkinson
758
Byron v. Thompson
624
Burtus V. Tindall
417
Bywater v. Richardson
969
Burwell v. Knight
789
Bury V. Blogg
335
V. Phillpot
1299
C.
Bush V. Guion
39
V. Oil Co.
909
C. V. A. B.
32
V. Tilley
1014, 1019
C. V. C.
1320 o
Bushell V. Barratt
397
Caballero v. Slater
869
Bushnell v. Bank
1205
Cabbett v. Clancy
827
Bussey v. Whitaker
696, 726, 727
Cabot V. Britt
642
Buswell V. Davis
1101
V. Given
1315
V. Pioneer
1064
V. Haskins
883
Butcher v. Bank
1302
V. Winsor
958
V. Brownsville
288
Cadaval v. Collins
789
V. Mette
1023
Caddick v. Skedmore
863, 901
V. Musgrave
1040
Caddy v. Barlow
776
V. Staply
909
Cadge, in re
630
V. Stewart
880
Cadwallader v. West
931
Butler V. Ford
1315
Cady V. Bggleston
977
V. Gale
1050
V. Kyle
1194
V. Gardner
861
/u. Potter
1019
V. Hunter
1315
V. Shepherd
634
V. Livingston
1258
Caermarthen R. R. v. Manchester
0. Lord Mountgarrett 185, 210,
R. R.
1212
213, 214, 225
977,1312, 1325
Cafferatta v. Cafferatta
1077
V. Maples
129, 141
Cagger v. Lansing
909
V. Mehrling
446, 447
Cahn V. Costa
441
V. Millett
1207
Cain V. Guthrie
1017
t>. Moore
597
V. Hunt
1019
1/. Portarlington
1241
V. McGuire
867
V. Price
1217
Calder v. Cobell
950
V. Slam
64, 988
Caldwell v. Caldwell
992
V. Smith
927, 930
V. Copeland
1345
V. Truslow
570
V. Evans
1331
V. Watkins
21
u. Fulton
1050, 1345
Butman v. Hobbs
1246
V. Garner
1180
Butt V. E. R.
363
V. Hunter
32*
665
TABLE OF CASES.
Caldwell v. Layton 1050
V. Leiber 1132
V. McDermitt 622
V. Murphy ■ 268
Caleb V. State 437, 439, 451
Caledonian Ry. Co. o. Sprot 1344, 1346
Caley v. R. R. 1019, 1068
Calhoun v. Dunning 780, 786
V. Ins. Co. 814
V. Richardson 1064
Calkins v. Barger 1294
V. Falk 869, 878
V. Lockwood 875
V. State 718
Call V. Dunning 725
Callahan v. Griswold 797
Callan v. Gaylord 979, 1323, 1325
Callanan v. Shaw 68, 412
Callaway v. Fash 1053
Callen v. Ellison 795
Calley v. Richards 578, 580
Callison v. Autry 1302
Calumet v. Russell 1053
Calvert v. Bovill 814
V. Carter 366
V. Flower 156
V. Marlow 820
Calwell «. Boyer 1116
Camb'ioso v. Maffett 1240
Cambria Iron Co. v. Tomb 466
Cambridge v. Lexington 1336
Camden v. Doremus 137
Camerlin v. Palmer Co. 174
Cameron v. Irwin 1028
V. Kersey 141
V. Lightfoot 390, 1119
V. Montgomery 566
V. Peck 93
V. School Dist. 63
V. State 84, 509, 510
0. Ward 908
Cammell v, Sewell 815
Camoys v. Blundell 999
Camoys Peerage 219, 220, 676
Camp t). Dill 1199 a
u. Walker 1163 a
Carapau v. Dewey 529
Campbell v. Campbell 84, 974, 1297
V. Christie 622
V. Coon 1165
V. Dearborn 1031
V. Fleming 1017
V. Gordon 176
V. Gullatt 84
V. Hoyt 740
V. Ins. Co. 415
V. Johnson 956, 1019
V. Mayes 468
V. Mcfclenachan 931
V. Mesier 1340
V. Nicholson 1061
V. People 387
t). Quackenbush 1215
666
Campbell v. Richardfj 436, 437
a. Rickards 507
V. Robbins 1058, 1059
V. Shields 1044
V. State 397, 402, 512, 515,
541, 563, 572
V. Tate 1060
V. Twemlow 421
V. U. S. 1290
t). Webster 980
V. Wilson 1350
Campbell, ex parte 585, 589
Canal Co. v. R. R. 286
Candee v. Burke 1066
Candler v. Lunsford 115
Canfield v. Bostwick 992
V. Thompson 115
Cannan v. Hartley 859
Cannell w. Curtis 1315
V. Ins. Co. 513
Cannon v. Brame 758
Canon v. Abbot 819
Cantey v. Piatt 704
Cantling v. R. R. 446
Cantrell v. Col well 1217
Cantwell v. Owens 980 a
Cansler v. Fite 1156
Capehart v. Capehart 1037
Capen v. Emery 102
V. Stonghton 980
Caperton v. Collison 422
Capiero v. Welsh 1070
Capling u. Herman 110,828
Capous V. Kauffman 422
Carbery v. Willis 1346
Card V. Card 431
V. Grinman 895, 896, 899
Cardwell v. Martin 624
V. Mebane 120
Carew v. White 756
Carey u. Adkins 1217
( . Bright 21, 961
V. Phil. Co. 619, 1126
V. Pitt 708
V. R. R. 2SS
Carhart v. Wynn 1060
Carington Co. v. Shepherd 294
Carkskadden v. Poorman 214, 219
Garland v. Cunningham 152
Carleton v. Bickford 66, 803, 808
V. Franconia Iron & Steel
Co. 331
V. Ins. Co. "95
V. Patterson 266
Carlisle v. Blamire 74
V. Foster 837
V. Hunley 555
V. Tuttla 99
Cai'los t!. Brooks 562
Carlton v. Hiscox 1295
Carlyle v. Plumev 1200
Carman v. Dunham 681
Carmichael, in ro 528
TABLE OF CASES.
Carmichael v. State 83, 84
Carmony v. Hoover 785, 942, 988
Carnall v. Duvall 702
Camavon v. Villebois 200
Cai-ne v. NicoU 237, 1157
Cavnes v. Crandall 201, 216
V. Piatt 583
Carolti v. State 84
Carpenter v. Amtroson 499, 504
V. Blake 452
V. Bailer 1039, 1040, 1083
V. Carpenter 1049, 1144, 1157,
1165, 1253
V. Dame 72, 90
V. Dexter 127, 288, 300, 317,
1053
u. Featherston 115
V. Groff 178
V. Hall 51
V. Hollister 1160, 1167
V. Ins. Co. 487
V. Leonard 510
u. Nixon 397, 567
V. Snelling 697
V. Wait 444
V. Wall 555, 562
V. Ward 559
Carpmeal v. Fowls 576, 579, 581, 589
Carpue v. R. R. 359, 363
Carr v. Burdiss 736
V. Carr 1031
1207
V. College
986
V. Dodfre
1331
V. Griffin
1120
V. Ins. Co.
464
V. Jackson
951
I). Minor
142
1064
V. Moore
566
V. Mostyn
187
1156
V. Northern
510
V. R. R.
1150
V. Stanley
518
0. State
719
V. Wallace
1144
Carradine v. Carradine
836
Carrick v. Armstrong
824
Carrie v. Camming
202
Carrig v. Oaks
1102
Carrill v. Garrignes
788
Carrington v. Cornock
178
V. Goddin
944
V. Holabird
392, 420
V. Roots
866
Carris v. Tattershall
629
Carroll v. Borin
1360
V, Bowie
1362
V. Carroll
810, 811
1278
V. Cowell
870
». Norwood
942
V. R. R.
1142
V. Ridgaway
1133
V. Smith
670
Carrollton Ek. v. Cleveland
Carrow v. Bridge Co.
Carrnth v. Bayley
V. Walker
Carruthers v. Graham
Carskadden v. Pcorman
Carson a. Coulter
V. Duncan
V. Godley
V. Lineburger
V. Smith
Carter v. Abbott
V. Beals
V. Bennett
V. Boehm
V. Buchanan
V. Barley
V. Carter
V. Chaudron
V. Edwards
■0. Fishing Co.
1167
294
551
123
178
77, 655
781
621
42
1363
317.
1320
262
1082
436, 440
208
123
1077, 1088
732
142
210, 1349, 1350,
1351, 1352
V. Happel 1049
U.James 793,1117
V. Murcot 1341
0. Phil. Coal Co. 962, 965
V. Pryke 21
V. State 655
V. Tinicum Fishing Co. 210, 1349,
1350, 1351, 1352
V. Toussaint 875
Cartraell v. Walton 689
Cartren v. Doremus 137
Cartwright v. Carpenter 780
V. Cartwright 1253
V. Clopton 1044
V. Green 425, 533
Carver v. Harris 357
V. Jackson 1039, 1041
V. Lane 875
V. Louthain 566
Cary v. Campbell 141
V. Hotailing 33
V. PoUard 1103
V. White 466, 468
Casady v. Woodbury 1022
Case V. Bungton 931
V. Case 83, 84, 931
V. Codding 1019, 1031
V. McGee 99
V. Mobile 293, 294
V. Peters 1050
V. Potter 678, 682
V. Reeve 764
V. Spaulding 1060
V. Young 996
Casement v. Fulton 886
Casey u. Inloes 185, 194
Cash V. Clark Co. 339
Cass V. Bellows 238, 246, 641
V. R. R. 363, 364
Cassell w. Hill 1214
Cassels v. Usry 1184
667
TABLE OF CASES.
Cassey v. R. E.
1090
Cassiday v. Stewart
286
Cassidy v. Stewart
295
Cassity v. Robinson
1212
Gassier v. Shipman
821
V. Thompson
909
Casson v. O'Brien
560
Cast V. Poyser
381
Castello V. Landwehr
357
Castle V. Bullard
33
V. Fox
1002
V. Sworder
875
Castles V. McMath
123
Castner v. Sliker
439, 441
,451
Castor V. Barington
529
Castrique v. Battigieg
1059,
1061
V. Imiie
776, 801
,803-
Caswell V. Howard
175
V. R. R.
1294
Gates V. Hardaere
53:
,536
0. Kellogg
1090
V. Loftns
1273
V. Winter
152
Cathcart, in re
589
Catherwood v. Caslon
1297
Catlett V. Ins. Co.
110
a. Pacific Ins. Co.
114
Catlin V. Birchard
1060
V. Underbill
94
, 100
V. Ware
741
Caton V. Caton 873, 882, 909, 910, 1220
Catt W.Howard 1103,1200
V. Tourle 577
Gatton V. Simpson 626
Caufield v. Bostwick 992
Caufman v. Cedar Spring Cong. 669
Caujolle V. Ferrie 210, 1297, 1298
Caul V. Spring 1338
Caulfield v. Bullock 99
V. Sanders 147, 357, 682
Gaulkins v. Hellman 875
Cauman v. Congregation 141
Caunce v. Eigby 1 302
V. Spanton 1259
Cavan v. Stewart 803
Cavanhovan i<. Hart 178
Cave V. Burns 988
V. Mills 1087, 1146
Cavendish ;>. Troy 515, 828, 1097
Caverly v. Gray 820
Gavin v. Smith 1157
Cawtborn «. Haynes 1011
Cawtborne t'. Cordrey 883
Cayford's case 84
Cazenove v. Vaughan 177, 828 a
Cease v. Cockle 920
Cecil Bk. V. Snively 1035
Cedar Eapids E. E. v. Stewart 967
Central Bank v. Allen 269
V. Copeland 269
V. Veasey 100
V. White 377, 755
Central Bridge Go. v. Butler 856, 357
668
Central Corp. v. Lowell 826, 838
Central Mil. E. E. v. Eockafellow 395,
396
Cent. Nat. Bk. v. Arthur 377, 382
Central B. E. v. Moore 361
V. Owens 980 a
Chad V. Tilsed 941
Chadsey K. Greene 1190
Cbadwick v. City of London 331
V. Perkins 1014
Chaffee v. Taylor 76, 708, 1328
Chaffee & Co. v. United States 361, 371,
519, 674, 1268
Chahoon v. Com. 576
Chaires u. Brady 515, 1031
Chalfant v. Williams 939, 1019
Cballis's case 1152
Chalmers v. Sbackell 1246
Chamberlain v. Carlisle 823
V. Davis 1217
W.Dow 1199
V. Gaillard 785
V. Ingalls 879
V. McClurg 935
V. Preble 763, 783
V. Sands 549
V. Wilson 533, 539
Chamberlin v. Ball 109
V. Man. Co. 129
0. People 431, 608
Chambers v. Barnasconl 247, 654, 1157
V. Gaines 931
V. Hunt 141
V. Lapsley 988
V. Mason 1186
V. People 324
Chambers Co. v. Clews 1089
Chamley v. Lord Dunsany 788
Chamness v. Crutchfield 920
Champ !'. Com. 550
Champion v. Atkinson 44
V. Joslyn 1133, 1140
u. Kille 300
V. Plumraer 871
V. Terry 149
Champlin v. Laytin 1029
Champneys v. Peck 1243
Chance v. R. E. 563, 712
Chandee v. Lord 823
Chander v. Grieves 282, 298
Chandler v. Barrett 441
V. Coe 951, 1061
V. Davis 466
!>. Grieves 282, 298
i\ Home 491
V. Hough 411
t\ Le Barron 706
Chandos Peerage 219
Chanoine v. Fowler 288
Chanrand i'. Augerstein 961
Chant i\ Brown 576, 580, 588
V. Reynolds 760
Chapel V. Washburn 1212
TABLE OF CASES.
Chapin v. Curtis
782
V. Lapham
516
V. Marlborough
2C8
V. Sieger
93, 133
V. Taft
175
Chaplain v. Briscoe U7, 377, 723
Chaplin v. Rogers 875
Chapman v. Beard 1081
V. Chapman 201, 216, 1144
V. Coffin 551, 566
i;. Davis 379,495,1183
V. Herrold 317, 336, 640
V. R. R. 360
V. Rase 1142
t). Twitch 1190
V. Twitchell 1165
V. Walton 437
Chapman Township u. Herrold 114
Chappee v. Cox 514
Chappel V. Avery 992
V. Marvin 875
V. Purday 828 a
Chappell V. Bray 1091
V. Dann 951
V. Hunt 980
Charles v. Huber 622, 630, 729, 81 1, 886,
1008, 1013
V. O'Mailey 640
Charleston R. R. K. Blake 1170,1177
Charlesworth u. Tinker 177
V. Williams 289
Charlotte v. Chouteau 115, 302, 304,
664
Charlton v. Coombes 580, 590
V. Hindmarsh 889
Charnley v. Grundy 149
Chamock v. Darings 491
Charter v. Charter 996
Chartered Bank of India v. Rich 590
Chartiers v. McNamara 697
Chase v. Blodgett 397
V. Ins. Co. 314
V. Jefferson 781
V. Jewett 1014
V. Peck 863
V. R. R. 662
V. Savage 63
D.Smith 1133
V. Walker 988
Chasemore v. Richards 1350
Chastain v. Robinson 175
Chatfield v. Pryer 186
Chatham Bank v. Allison 123
Chatland v. Thomley 324
Chattes v. Rant 155
Cheeck v. Wheatly 558
Cheeseborough, in re 1258
Cheesemau v. Kyle 1158
Cheesman «. Exall 1149
Cheever v. Brown 684
V. Wilson 286, 287
Chelmsford «. Demorest 1175, 1212
Cheltenham v. Cook 1212
Cheltenham & Gt. West. Union Ry.
Co. V. Daniel H51
Chenango v. Lewis 238
Chenery v. Goodrich 975
Cheney v. Arnold 501, 783
V. Gleason 1049
V. Walkins 1347, 1352
Chenton v. Frewen 582
Cherry v. Baker 324
V. Hemming 865, 878, 883, 1314
V. Long 868
Chesapeake Bank v. Swain 1134
Chesapeake Co. v. Gittings 760
Cheseldine v. Brewer 83
Chesley v. Chesley 427, 431
W.Frost 621
V. Holmes * 1050
Chess V. Chess 177
Chesson v, Pettijohn 1048
Chester v. Bank 1067
V. Bank of Kingston 1015, 1026
V. Dickerson 864, 1192, 1194
V. Wortley 490, 533
Chester Co. v. Lucas 942
Chester Emery Co. v. Lucas 939
Chesterton v. Fairlar 1308
Chestnut v. Marsh 982
Chetwood v. Brittain 931, 1067
Chew V. Brumagim 760
Chiapella «. Brown 516
Chicago V. Adler 521, 522
V. Greer 510, 1175
V, Magraw 60
V. Mayor 359
V. McGiven 436
u. R. R. 529
V. Sheldon 937, 1014
Chicago R. R. v. Adler 521, 522
V. Banker 670
V. Button 1077
V. Collins 1205
V. Dunning 382
V. George 77
V. IngersoU 147
V. Lee 1170, 1180
V. Mahan 828
V. Moffitt 436
V. Triplett 404, 408
Chicago, &c. R. E. «. Coleman 1170
Chic, B. & Q. R. R. v. Riddle 1180
Chic. & N. W. R. R. v. McCahiU 360
Chickering v. Failes 977
Chicopee v. Eager 965
Chicopee Bk. v. Phil. Bk. 362, 363, 364
Child V. Allen 837
r. Grace 1137,1138,1139
V. Kingsbury 185
V. Moore 1125
V. Roe 1186
V. Starr 1339
Childress v. Cutter 115
Childs V. Wells 1050
Chiles V. Conley 1358
669
TABLE OF CASES.
Chillicothe K. E. v. Jameson 588
Chilton V. People 693
Chinn v. Caldwell 828
Cliinnoek v. Ely 901
Chirac v. Reinecker 201, 589, 670
Chisholra v. Newton 1207
Chisman w. Count 1140
Chisolm V. Perry 668
Chitty V. Dendy 324
Chodwick v. Palmer 886
Ch.icezj. State 451, 452
Chi Imondeley v. Clinton 580
Chouteau v. Chevalier 114, 120, 653, 658
V. Pierre 291, 300
V. Searcy 391
Christ V. Diffeiibaeh 931, 1019
Christie v. Secretran 814
V. Unwin 130S
Christmas v. Kussell 797, 808
V. Whingates 630
Christopher w. Corrington 1165
Christy v. Barnhart 909
V. Clarke ■ 424
V. Home 162
V. Kavanagh 147
Chubb V. Cell 47
V. Salomons 604, 605
Chumasero v. Gilbert 300
Church V. Brown 788, 869
V. Chapin 823
V. Cole 1031
V. Drummond 47
V. Fagin 357
V. Farrow 910
V. Hubbart 110, 300, 302, 304,
305, 319
V. Imperial Gaslight & Coke
Co. 69
V. Milwaukee 676
V. Eowell 1285
V. Ruland 903
V. Shelton 838
V. Steele 1090
V. Sterling 1038
Church St., case of 290
Churchill v. Corker 66, 420
V. Fulliam 1 140
V. Smith 175, 1216
Churchman v. Smith 622, 684
Churton u. Freweu 1112
Chute V. State 346, 518
Cicero Draining Co. v. Craighead 294
Cilley V. Jenness 53
Cincinnati Ins. Co. v. May 510
Cincinnati R, B. v. Pearce 1014
0. Pontius 1070
Cipperly v. Cipperly 1038
Cist V. Zeigler 988
Citizens' Bk. v. Steamboat Co. 723
City V. Hildebrand 359
City Bank v. Adams 1014, 1053
V. Bidwell 314
V. Dearborn 836
670
City Bank v. Young 558
City Council v. Plank Road 294
City of Berne v. Bk. 323
City of Bristol v. Wait 150
City of London v. Gierke 187
V. Perkins 177, 178
City of Washington 435
City R. E. V. Veeder 1019
Claflin V. Carpenter 866, 867, 1343
Clagett V. Easterday 512, 758
V. Hall 1046
Claggett V. Richards 833 a
Clair t). Shale 226
Glummer v. State 983
Clancy's case 397
Clanmorris v. Mullen 726
Clapham v. Cologau 623
Clapp V. Foster 1090
u. FuUerton 451
V. Norton 677
V. Rice 1059
V. Thomas 1319
V. Tirrell 1042
V. Wilson 555
Clapper, ex parte 813
Clara v. Ewell 210, 219
Clardy v. Richardson 726, 727
Clare v. State 290
Clarendon v. Weston 1089
Clarges v. Sherwin 823
Claridge v. Hoare 633
V. Klett 977
Clark V. Akers 977
V. Alexander 1284
V. Allen 632
V. Bailey 562
V. Baird 447, 942
«. Baker 1180,1183
V, Barnwell et al. 1070
V. Bigelow 515
V. Blackington 66
V. Bond 569, 570
u. Boyd 726, 727
V, Brown 56
V. Bryan 795
V. Ganfield 1277
V. Clark 559, 581, 1032
V. Crego 619, 1103
V. Depew 103, 838
V. Detroit 120, 436, 444, 972
V. Dibble 1246
V. Field 603
V. Fletcher 156
V. Freeman 709
V. Henry 1032
V. Hopkins 1360
V. Hornbeck 142
V. Houghton 140, 514, 727, 977,
1042, 1050, 1056, 1094
V. Huffaker 1200
V. Hummerle 116
V. Ins. Co. 920 .
V. Irvin 783, 838
TABLE OF CASES.
Clark V. Lancaster
956
Clay V. Yates
874
V. Larkin
1077
Clay's case
1315
V. Leach
1284
Claycomb v. Butler
599
V. Morrison
1198
Clayton v. Blakey
855
u. Mullick
316
V. Grcgson
962
u. Owens
732
u. Gresham
810
V. Parsons
802
u. Lord Nugent
943, 956, 1006,
(^. Partridge
931, 1019, 1023
1008
V. Pendleton
882
V. Siebert
714
V. Polk Co.
120
V. Tucker
259
V. Powers
939
V. Warden
83, 84, 1297
V. Reese
483, 535, 540, 543
Claytor v. Anthony
1204
V. Rhodes
712
Clealand v. Huey
177
V. Richards
589
Clearwater v. Brill
510
V. Rockl^d
447, 450
Cleary v. Babcock
1019
V. Saffery
500
Cleave v. Jones
577
u. Sanderson
726, 727
Cleaveland v. Davis
1163 a, 1165
V. Schneider
1301
Cleaves v. Foss
868
V. Simmons
' 619
Cleavinger v. Reimar
979
V, Smith
894
Clegg V. Fields
444, 507
V. State
451
Cleland v. Thornton
1294
V. Terry
864
Clem V. R. E.
1241, 1243
V. Trindle
135, 903
V. State
569
V. Trinity Church 528, 655
V. Troy 740
V. Tucker 872, 875
V. Van Eiemsdyk 487
V. Voree 180, 518, 520
V. Wardwell 1310'
V. Wethey 944
V. Willett 444
V. Wilmot 230
V. Wood 733
V. Wright 139
V. Wyatt 712
V. Young 782
Clark, in re 259, 1156, 1308
Clarke v. Canfield 1274, 1276
V. Clarke 889, 1151
V. Courtney 726
V. Cummings 1274
V. Dederick 1044, 1061, 1160
V. Dereaux 1064
V. Diggs 115
V. Fuller 901
V. Lamotte 366
V. Magruder 240
V. Paige 619
V. Ray 1126
u. Roystone 958, 959
V. Scott 1060
V. Scripps 895, 896, 900
V. Smith 683
V. Waite 1157
Clarke's Lessee v. Hall 397
Clarkson v. Woodhouse 74, 199
Clary v. Clary 451
Clason V. Bailey 75, 616
Claunes u. Perrey 1264
Clanss a. Burgess 1021
Claussen v. La Franz 1216
Clawson v. State 1200, 1206
Clay V. Crowe 149, 220
Clemens v. Conrad 697
V. Hann. v. St. Jo. R. E. Co. 40
V. Murphy 785
V. Patton 238
V. Railroad 360
Clement v. Brooks 541
V. Cureton 508
V. Durgin 904
V. Eeppard 1060
V. Ruckle 147
V. Youngman 1345
dementi v. Golding 282
Clementie v. Golding 278
Clementine v. State 542
Clements v. Brooks 63
V. Hunt 201, 208
V. Kyles 192
V. Lundrum 1044
V. Machboeuf 1352, 1353
V. Moore 367, 1104, 1165
Clendon u Dinneford 1259
Cleve. & P. E. E. v. Rowan 361
Cleveland v. E. R. 43
Cleveland R. R. v. Ball 447
V. Perkins 74, 450
Clever v. Kirkman 927
Click V. McAfee 880
Clifford V. Burton 1217
V. Hunter 550
V. Parker 622, 626
V. Turrell 1046, 1048
V. XJ. S. 1268
Clifton V. Lilley 1333
V. United States 371, 1067
Climer v. Hovey 1021
Clinan v. Locke 909
V. Cooke 868, 882, 910, 961, 1024
Cline V. Catron 185, 668
Clink V, Thurston 765
Clinton Bank v. Hart 771
671
TABLE OF CASES.
Clinton Bank v. Torry 690
Clinton v. Estes 1044, 1206
V. Hope Ins. Co. 971
V. Howard 437,439, 444, 512,
1295
V. Ins. Co, 939, 946, 1172
Clipper V. Logan 444
Cliqaot's Champagne 674, 1170, 1291
Cloncurry's case 1 220
Clop ton «. Martin 1019
. Close V. Olney 540
Closraadenc w. Carrel 1313
Clothier v. Chapman 188
Cloud D. Dupree 1156
V. Hartbridge 73
V. Patterson 60
Clough V. Monroe 833
V. Whitcomb 1153, 1315
Cluff V. Ins. Co. 314, 776
Cluggage V. Swan 601
Clunnes V. Pezze 1267
Clussman v. Merkel 447
Clymer v. Thomas 983
Coale V. Hann. & St. Jo. R. E. Co. 40
V. Merryman 1020
V. R. R. 360
Coalter v. Hunter 1350
Coates V. Bainbridge 1177
V. Glenn 1026
0. Hopkins 545
Coats V. Chaplain 870, 876
V. Gregory 1127
Cobb V. Boston 520
V. Edmondson 422
V. Hatfield 931
V. State 524
V. Wallace 1015
Cobbett, ex parte 384
Cobbett u. Grey 1103
V. Hudson 420, 491
V. Kilminster 706, 712
Cobden v. Kendriok 580
Coble V. McDaniel 176
Cobleigh 11. Young 1310
Coburn v. Odell 533
Cocheco Manf. Co. v. Whittier 23
Cochran v. Arnold 1309
V. Butterfield 708
V. Cunningham 1196
V. McDowell 1165, 1167
V. Miller 513
V. Nebeker 622
V. Retburgh 961, 961 u,
v. Taylor 980 a
V. Toher 55
Cockburn v. Union Bk. 746
Cocke V. Bailey 936, 1014
Cockerham v. Nixon 41, 1295
Cocking V. Ward 863, 909
CockriU v. Kirkpatrick 1058
Cocks V. Barker 930
V Nash 743
V. Purday 438, 666
672
Codman v. Caldwell
678
Cody V. Hough
155
Coffee V. Neely
824
Coffeen v. Hammond
136
Coffin V. Anderson
570
V. Collins
661
V. Cross
685
V. Jones
429
V. Knott
1112
V. Vincent
522
Coffman v. Hampton
980
Coficld V. McClennand
1302
Cogan V. Frisby
115
Coger V. McGee
1019
Cogger V. Lansing *
910
Cogley V. Cushman
502
Cogswell V. Burtis
66
Cohen v. Hinckley
1283
Cohn V. Mulford
1165
Coil V. Pittsburg College
1068
_ V. Willis
1305
Coit V. Haven
795
V. Howd
227, 1163 i
V. Starkweather
953
V. Tracy
775, 785
Coke V. Fountain
177
CokeJy v. State
529, 559
Colagan v. Burns
900
Colberg, in re
900
Colbern's case
428
Colbourn v. Dawson
1044
Colclough V. Rhodns
574
V. Smyth
999
Colgan V. Philips
1217
Cole V. Cole
1090
V. Com.
29
u. Dial
681
V. Hawkins
389
V. Jessup
61, 123
V. McClellan
389
V. Potts
909,910
V. Spann
1014
V. Varner
512
V. Wendell
946, 947
Cole's Lessee v. Cole
397
Coleman v. Bank
950
I'. Com.
401, 402, 403
V. Dobbins
295, 637
V. Eberly
1002
(/. First Nat. Bank of El-
mira 950
V. Frazier 226
V. Smith 123
Coleman's Appeal 988
Coles V. Bowne 901, 1019
V. Bristowe 1243
V. Coles 549
V. Perry 415
V. Soulsby 1042
Collard v. Simpson 884
Colledge v. Horn 1184, 1186
CoUender v. Dinsmore 718, 920, 937, 961,
972, 101%
TABLE OF CASES.
Collett u. Ld. Keith 804,1099.1120
Com. V. Burke 391
395
396, 526, 543
Collier v. Baptist Soc.
292
V. Butler
1256
V. Collier
1033
V. Buzzell
559
u. Mahon
1044
V. Call
1136
V. Nokes
33.5
V. Carey
399, 570, 708
V. Simpson
438, 665, 666
V. Carr
840
Colling V. Trew.eek
74, 159, 162
V. Choate
443
Collins V. Barclay
1338
V. Churchill
562
V. Baumgardner
920
V. Coe
676
708, 715, 717
V. Bayntun
736
V. Connelly
608
V. Bennett
779
V. Costello
1273
V. Blantern
931, 935
V. Costley
7,21
V. Carnegie
1317
V. Crowninshieh
1206
V. Dorchester
641, 1295
V. Curran
368
V. DriscoU
961
V. Curtis
483, 542
V. !Fitzpatrick
834
V. Cutter
69
u. Freas
781
V. Daley
254, 258, 357
V. Gashon
157
V. Dame
397
u. Gilson
1060, 1061
V. Davison
620
V. Groseclose
1294
V. Dellane
64
V. Hope
965
V. Dickinson
290
V. Maule
112
V. Dillane
785, 988
V. Middle Level Com. 1294
V. Dorsey
512
V. Rush
944
V. Dowdican
21,512
V. Smith
177,465,477
u. Downing
537
V. Waters
268
V. Drake
597
Collis V. Hector
803
V. Duane
980 a
Collyer v. Collins
972
u. Eastman
93,
714, 715, 716,
Colman v. Anderson
1353
1103, 1154
V. Truman
594
V. Edgerly
30, 1154
Colman, in re
886
V. Emery
115, 152, 740
Colquitt V. State
1102
V. Evans
758
V. Thomas
1180
V. Eairbanks
512
Colsell V. Budd
1362
V. Farrar
559
Colt V. Cone
92(5
V. Eowler
1315
ji. Eves
1192
w. Fox
520
V. Selden
864
V. Galavan
281, 496
Coltman v. Gregory
1004
u. Goddard
795, 782, 839
Colton V. Ross
8li
u.' Goldstein
153
V. Seavey
942, 945
V. Goodwin
683
Columbia Bridge v. Geisse
1290
V. Gorham
397, 567
Columbia College
796
V. Green 290,
393,
397, 567, 808,
Columbia v. Harrison
516
1194
Columbia Ins. Co. v. Cooper 1172
V. Griffin
427
t). Masonheimer 1170,
V. Haley
525
1173
V. Hall
30, 567
Colvin V. "Warford
856, 1334
u. Halloway
567
Colwell V. Lawrence
937, 972
V. Hanlon
397
Com. V. Alberger
669
ti. Hardy
49,56
V. Alderman
796
V. Harvey
1138
V. Alger
980 o
V. Hawkins
556
t. Bachelor
396
V. Heffrou
185
V. Bagley
1240
V. Hill 81
399
401, 407, 601
V. Balcom
826
V. Holliston
677
V. Bean
551, 552
v. Hortou
783
V. Billings
563
V. Hutchinson
398, 399, 400
V. Blaine
939
V. Ingraham
569, 1206
V. Blood
1304
V. Jackson
796
V. Bonner
483, 541
V. James
60
V. Bradford
356
V. Jefferies 76,
93, 685, 716, 1128,
V. Brainerd
538
1323
V. Brown
1192
V. Jenkins
570
V. BuUard
983
V. Johnson
84
VOL. ir. 43
6T3
TABLE OF CASES.
Com. V.
V.
Judges of Com. Pleas
Keith
Ken dig
. Kennedy
. Kenney
. Kepper
. Kimball
. Kinison
. Knapp
. Kneeland
. Knight
. Kreager
, Lamberton
, Lannan
. Lattin
. Lawler
, Le Blanc
. Lenox
, Leo
. Littlejohn
. Locke
. Low
, Malone
, Marrow
. Marsh
. McCarthy
, McCue
. McKie
. McPike
. Mead
. Messinger
. Miller
. Moltz
. Montrose
. Mooney
. Morgan
. Morrell
. Mullen
. Mullins
, Murphy
. Murtagh
. Nichols
. Nickerson
. Norcross
. O'Brien
. O'Connor
. Owens
. Peck
. Peckham
. Phelps
. Phillips
. Piper
. Pomeroy
. Pope
. Price
. Putnam
. Quinn
. Keid
. Keynolds
. Rhodes
.Rich
. Kichards
674
983
397
1212
368
1138, 1139, 1292
174
533
60
567
278, 282
387
856, 901, 909, 980,
1033, 1037
550
483, 525, 539, 838
391, 400
563
400
441
368
84
356
1352
512
551
422
31
1315
371
268, 776, 838
601, 1271
78, 160
29, 776
1150
980 a
551
483, 629, 539
77, 81, 715
483, 539
400, 715
97, 422, 562
84
34, 483
575
77
56
269
512
'708
336
524
96, 107
347,436,441, 511
612, 604, 1254
77, 81, 511
535, 539
84, 87
63, 528, 541
425, 432
402, 403
643
435, 441, 451
180, 1109
Com. V. Eiley
719
V. Roark
135
V. Rogers
397
,451,567
V. Rupp
1315
V. Sackett
49,56
V. Shaver
397
V. Shaw
532, 535
V. Shea
368
V. Shepherd
608, 1298, 1299
V. Sherry
258
V. Slocum
820, 980
V. Smith
396,
707
708, 719
V. Somerville
782
V. Sparks
432
V. Starkweather
549
V. Stearns
30
V. Stone
182, 183
V. Strieker
1298, 1299
V. Stump
83,84
V. Sturtivant
21,
438,
511,512,
666
u. Sutherland
64
785, 988
V. Thrasher
34, 506
V. Thurlow
368
V. Thurston
537
V. Tilton
783
V. Trout
94
797, 824
V. Tuck
781
V. Tutt
719
V. Udderzook
14, 676
V. Vosburg
259
V. Walker
1138
V. Webster 4£
,56
72,
446, 718,
1265
' V. Welsh
549
V. Wentz
1299
V. Willard
537
V. Williams
714
715, 719
V. Wilson
451,
512
570, 572
V. Winnemore
386, 396
V. Woelper
662
V. Wyman
396
Com. Bk. V. Eddy
823
w. French
950
V, Kortright
633, 694
t>. Lewis
1017
V. Patterson
289
V. Rhind
1064
Com. Ins. Co. v. Ives
1172
V. Labuzau
289
Coman v. State
90
Combe v. London
583
Combs V. Winchester
551
Comins v. Comins
266
Commercial Bk. v. Sparrow
290
V. Varnum
124
Commis. v. Hanion
707
V. Merral
1259
V. Spitler
339
V. Washington Park
619
Compton V. Chandless
741
V. Martin
883
Comstock V. Carnley
60
TABLE OF CASES.
Comstock V. Crawford
795
Cook V. Anderson
1129
V. Hadlyme
900, 1010, 1011,
K. Barr 838,872,
1033, 1116,1119,
1173, 1252
1122
V. Johnson
1017
V. Brockway
510
V. R. R.
359
V. Brown
556
I). Rayford
417
V. Burton
1214
V. Smith 21, 622, 1039, 1143,
V. Castner
439, 444
1156, 1291
V. Cole
1017
Conard v. Ins.
1066
V. Grange
429
Concord R. R. v. Greeley 436
V. Harris
191, 1157
Cone V. Emery
115
V. Helms
1301
V. Hooker
808
V. Hughes
838
V. Porter
676
V. Hunt
555,569, 1170
Conelly v. McKean
1363
V. Middlesex
567
Confer v. McNeal
21, 1205
V. Mix
391
Conflans Quarry Co. v.
Parker 149
V. Moore
33, 931
Cong. Church v. Morris
116
0. Noble
357
Congar o, R.
529
V. Shearman
698, 920, 936
Conger v. Converse
60
V. State
84, 436
Congreve v. Morgan
1295
V. Stearns
863
Conkey v. People
563
V. Stout
177
V. Post
147, 566
V. Whitfield
1175
Conn V. Peun
185
u. Wilson
288
V. Peters
189
Cooke V. Banks
639
Connecticut v. Bradish
761, 872, 1127,
!/. Clayworth
487
1323, 1328
V. Crawford
300
Connecticut Trust Co.
u. Melendy 1362
V. Curtis
570
Connelly v. Bowie
115
V. England
444
V. Devoe
906, 1017
V. Green
1339
V. McKeau
1361, 1362
V. Lamotte
367
Conner, ex parte
290
V. Lloyd
203,216
Conner v. Carpenter
1019
V. Sholl
814, 816
V. MciPhee
640
V. Soltan
1352
u. Mt. Vernon Co. 518
V. Tan swell
737
V. State
493
V. Tombs
902
Connery v. Brooke
786, 787, 792
V. Wildes
1263
Connett v. Hamilton
377
Cookes V. Mascall
908, 1145
Connihan v. Thompson
1142
Coole V. Braham
1157,1164
Connolly v. Pardon
998
Cooley V. Norton
558, 1173
Connor v. Trawick
315
Coolidge V. Brigham
240
Connors v. People
483, 539
Coombs V. Bristol & Ex
Ry. Co. 876
ConoUy v. Riley
314, 1315
Coon V. Gurley
1183
Conover v. Bell
537
V. Knap
1064, 1066
a. Warden
937, 1014
V. Swan
581
Conrad v. Griffey
649, 555, 570
Coonce v. Munday
834
V. Long
1053
Coope V. Bockett
630
Conradi v. Conradi
180
Cooper V. Blick
1114
Conrey v. Harrison
487
V. Bockett
888, 897
Consolidated Real Est. Co. v. Cashow
V. Chambers
880
305, 439
V. Day
130, 838
Continental Ins. Co. v.
Delpuch 1158,
V. Dedrick
1284
1217, 1247
V. Galbraith
366, 981
V.
Hasey 1170
V. Gibbons
1267
V.
Hortou 447
V. Hubbuck
1349
Contract Co., in re
377
V. Maddan
143, 147
Converse v. Blumrich
1175
V. Moore
1315
Conway v. Bank
61
V. Phibbs
1029
V. Beazley
654
V. Poston
1273
V. Case
640
V. Eeaney
314
Conybeare v. Parries
154
V. Robinson
977
Conyers v. State
356
V. Shepherd
772
Cooch V. Goodman
865
»' Slade
1246
Coode V. Coode
653, 654, 658
V. Smith
872, 1350
675
TABLE OF CASES.
Cooper V. State 510
W.Taylor 1113
Cooper's case 604
Coote V. Boyd 974
Cope V. Cope 608, 655, 1298
V. Dodd 965
V. Parry 178
V. Rowlands 1317
Copeland, ex parte 120
Copeland v. Arrowsmith 872
V. Copeland 1148, 1150
V. Toulmin 838, 1084
Coper t). Thurmond 1274
Copes V. Pearce 205
Copley V. Sanford 301
Copp V. Lamb 1310
u. McDugall 823
V. Upham 537
Coppage K. Barnett 1196
Copper Miners' Co. v. Pox 694
Corbett v. Berryhill 939
V. Corbett 179
V. Evans 789
V. Hudson 420
Corbin v. Adams 1175
V. Sistrunk 935
Corcoran v. Sheriff 366, 976
Cordwent v. Hunt 1018
Corey v. Campbell 442
Corinna v. Exeter 1209
Corinth v. Lincoln 259
Cork & Bandon Kail. Co. v. Caze-
nove 1272
Corlies v. Howe 1044, 1064
V. Vannote 723
Cornelius v. Com. 547
V. State 566
Cornell v. Cork 833
V. Dean 448
V. Hall 1032
V. Vanartsdalen 429
Cornet u. Bertelsmann 375,411
Cornett v. Cornett 1165
V. Pain 1165
V. Williams 90, 135, 465
Corning v. Ashley 681
V. Corning 47
V. Gould 1350
V. Troy Factory 1332
Cornville v. Brighton 259
Cornwall v. Richardson 47, 50, 53
Corrie v. Billin 697
Corrigan v. Falls Co. 693
Corry Bank v. Rouse 698
Corse V. Patterson 422
Corser v. Paul 1136, 1138
Corsi V. Maretzek 441
Cort V. Ambergate 1018
Cortis V. Kent 1317
Cortland Co. v. Herkimer 1175, 1182
Corwith V. Culver 1068
Cory V. Bretton 1090
V. Davis 60
676
Cory V. Silcox
Cosgrove v. R. R.
Cossey v. London
V. R. R.
Cossitt V. Hobbs
Costello V. Costello
438, 665, 666
1175
742
593, 606
872
427, 430, 431, 478
Costigan v. Gould 239, 977
V. Hawk 366
V. Mohawk R. R. 366
V. R. R. 353
Cotheal v. Talmadge 357
Gotten V. Ellis 747
Cotterill v. Hobby 60, 61, 78
Cottingham v. Weeks 776
Cotton V. Campbell 60
V. Jones 574
V. Ulmer .1252
V. Wood 359
Cottrell V. Hughes 1352
Cottrill V. Myrick 443, 1026
Couch V. Meeker 864
Coughenour's Adm'r v. Stauft 945
Coughenour v. Suhre 929, 1019, 1058
Coughlin V. Haeussler 177
V. People 415
Couillard v. Duncan 551
CoujoUe V. Ferrie 213
Coule w. Harrington 115
Coulson V. Wells 1347
Coulter V. Express Co. 549, 1296
V. Stewart 1246
Countess de Zichy Ferrais v. M. of
Hertford 888, 890
Coupland v. Arrowsmith 617, 1128
Course v. Stead 287
Coursin v. Ins. Co. 821
Courtail v. Thomas 865
Courteen v. Touse 501
Courtenay v. Fuller 1015, 1026
Courtney v. Baker 263
V. Com. 1131
Courvoisier v. Bouvier 1039
Cousins V. Jackson 474, 485
V. Wall 908
Couturier v. Hastie 879
Covanhoven v. Hart 574
Coventry u. Coventry 184
Covert V. Gray 1284
Covington v. Ingram 982
V. Ludlow 637
Cowan V. Beall 722
V. Braidwood 803, 804
V. Cooper 1044
V. Hite 201
V. Wheeler 833
V. White 210
Cowden v. Reynolds 551
Cowell V. Chambers 636
Cowen V. Bolkom 1302
Cowie V. Halsall 626
V. Renfry 75
Cowles V. Bacon 480
V. Garrett 961, 1058
TABLE OF CASES.
Cowles V. Hayes
516
V. State
518
V. Townsend
1058
Cowling V. Ely
1208
Cox V. Allingham
66
V. Bennet
1014
V. Cox
117
V. Davis
727
v. Easely
1168
V. Freedly
1339
V. Hill
797
V. James
1039
V. Jones
100
V. King
1019
V. Middleton
901
V. Morrow
3l4
V. Parry
1114
V, Pruitt
565
V. State
185
V. Strode
760
V. Thomas
823
V. Walker
356
V. Whitefleld
509
Coxe V. Deringer 142, 980, 1287, 1331,
1332, 1353
V. England 140
V. Heisley 958, 959, 965
Coxhead v. Richards 1263
Coye V. Leach 1280
Coyle u. Cleary 191,1156
V. Davis 908
Cozens v, Stevenson 1019
Cozzens, ex parte 539
Cozzens v. Higgins 676
Crabtree v. Clark 739
V. Hagenbaugh 412, 563
V. Kile 562, 565
V. Eeed 7
Crafts V. Clark 305, 314, 801
Cragin v. Lamkin 302, 310, 311
Craig V. Brendel 466
u. Brown 99, 100, 101, 289
V. Craig 1220
V. Dimock 697
V. Eenn 356
V. Gilbreth 1176, 1179
V. Grant 549
V. Lewis 1066
V. Pervis 357, 948
V. Proctor 357
V. Rohrer 551
V. State 562
Craighead a. Wells 1183
Grain I!. Wright 1214
Crake v. Crake 289, 314
Cram v. Cram 430, 451
Cramer w. Shriner 1064, 1134
Crandall v. Clark 1327
■0. Gallup 793
u. Sehroeppel 1336
Crane v. De Camp 1032
V. Elizabeth Ass. 1015, 1068
V. Gough 1219
Crane v. Hardy _ 83, 314
V. Lessee of Morris 1041
V. Malony 617, 872
P.Marshall 733,1159
V. Morris 371, 1354
V. Northfield 509
V. Powell 872
V. State 120
V. Thayer 562
Crary v. Sprague 178
Craven, ex parte 1258
Craven v. Halliley 266
Cravens v. Jameson 760
Crawford v. Andrews 509
V. Bank 54, 1131
V. Blackburn 84, 205
V. Brady 939
V. ElUott 1274
f. Ginn 1143
V. Howard 795
V. JaiTett 939, 946
V. Loper 670
V. Morrell 902
V. Morris 939
u. Robie 466
V. Spencer 953, 1030
V. Wolf 452
Crawford & Lindsay Peerage 94, 693,
704
Crawford Peerage case 94, 693, 704
Crawley v. Barry 123
Crayford's case 84
Crayton v. Collins 1199 a
V. Munger 115
Creagh v. Savage 828
Creamer v. State r 431
V. Stephenson 1017, 1022, 1026
Crease i'. Barrett 180, 185, 186, 187, 194,
201, 227, 1157, 1159, 1165
Creasy v. Alverson 1002
Creech v. Byron 1060
Creed v. Bank ~ 1035
Creery v. Carr 550
V. HoUey 1070
Crellin II. Calvert 1111
Crenshaw v. Robinson 469
Cresson's Appeal 998
Creswell v. Jackson 712
Crew V. Saunders 447
Crews V. Threadgill 514, 1031
Crichton v. People 562
V. Smith 1092
Griddle v. Griddle 262
Crippen v. Morss 1192, 1193
V. People 545
Cripps V. HartnoU 880
Crisp V. Anderson 1267
" v. Platel 590
Crispen v. Hannaran 1053
Crispin v. Doglioni 201, 203, 216
Criss V. Withers 920
Crocker v. Crocker 992
V. Qetchell 1058
677
TABLE OF CASES.
Crocker v. Higgins
908
V, State
601
Crockett v. Campbell
739 a
V. Morrison
1077
Croft V. Croft
888, 1314
Crofton V. Poole
1153
Crofut V. Ferry Co.
.509
Croizet's Succession
1077
Croker v. Walsh
1337
Cromack v. Heathcote •
576, 581
Cromelien v. Brink
1302
Cronimett v. Pearson
987
Crompton v. Pratt
1362
Cronan v. Getting
500, 549
Cronk V. Frith
728
Crook V. Dowling
108
V. Henry
429
Crooker v. Crooker
1364
Crookwitt v. Fletcher
626, 627
Croomes v. Morrison
490
Crosbie v. Thompson
1084
Crosby v. Berger
588, 1576
V. Hetherington
331
V. Jeroloman
758
V. Mason
1002
V. Percy
254
V. Wadsworth
866
Crosett V. Whelan
505
Crosman v. Fuller
1060
Cross V. Bell
153, 1267
V. Langley
1194
V. Mill Co.
120
V O'Donnell
875
V. Rowe
1044
V. Sprigg
1017
Crosse v. Bedingfield
1192
Crossgrovew. Himmerlich
1192
Crossley v, Dixon
1149
0. Lightowler
1341
Crotty V. Hodges
626
Crouch V. Hooper
201, 207
Croudson v. Leonard
814
Croughton v. Blake
194, 639, 794
Grouse v. Holman
447
V. Staley
431, 466, 471
Crow V. Hudson
833
V. Marshall
1332
Crowder v. Hopkins
194
Crowe V. Clay
149
Crowell V. Bank
515
V. Hopkinton
115
Crowley v. Page
549, 551
V. Vitty
859
Crowninshield v. Crowninshield 1252
Crowther v. Hopwood 397
Cruger v. Daniel 228
V. Dougherty 63
Cruise v. Glancey 145, 709
Crump V. Gerock 838, 1116
V. Starke 175
Crumpton v. State 782
Cubbison v. McCreary 395
Cubitt V. Porter 1340
678
Cuddy V. Brown 201
Cuff V. Penn 901, 902
Cull V. Herwig 422
Culpepper v. Wheeler 151
Culver V. Dwight 512
Cumberland Bk. v. Hall 626
Cumberland Valley K. R. v. McLan-
ahan 1040, 1156
Cuming v. French 1090
Cummings v. Arnold 901, 902, 904, 906
V. Banks 802
V. Gill 909
V. Nichols 683
V. Putnam 1026, 1027
V. Stone 339
Cundell v. Pratt 544
Cundiff V. Orms 522
Cunliffe v. Sefton 726, 729
Cunningham v. Bank 705, 708
V. Dwyer 1044
V. Fonblanqne 1320
V. Foster 988
V. Gardner 980
V. Parks 258
V. Smith 810, 1278
V. Ward well 1058
Cunninghame v. Cunningham 84, 1297
Curie ». Beers 1124,1125
Gurlewis v. Corfield 1265
Curling V. Perring 594
Curratt v. Morley 1308
Curren v. Gonnery 574
V. Crawford 681
Currie v. Anderson 875
V. Child 726
Currier v. Esty 838
V. Gale 227, 1161 b, 1286, 1331
I'. Hale 1058
1.. R. R. 512, 513, 1133
V. Silloway 838
Curry v. Kurtz 1196
V. Lyles 1044
V. Raymond 115
Curtis V. Belknap 724
V. Brown 880
V. Cochran 567
V. Hall 739
V. Hunt 1121
u. Knox 534
V. Leavitt 693
V. Marsh 335
V. McSweeny 736
V. Moore 259
V. Rickards 1337
«. R. R. 512
V. Sage 883
V. WakeMd 1066
V. Williamson 1153
Curtiss V. Martin 1163 o, 1301
V. Strong 396
Curzon V. Lomax 185, 187, 194
Cusack !;. Robinson 875
Gushing v. Breed 875
TABLE OF CASES.
Cushman v. Loker
397
Damerell v. Protheroe
187
Castar w. Gas Co. 262,1175,
1177,
1179
Damon v. Granby
967
V. Titusville
1068
Dan V. Brown
139,
899, 1199
Custis V. Turnpike Co.
795
Dana v. Boyd
155
Cuthbert v. Cumming
961
,969
V. Bryant
1112
Cutler?;. Carpenter
507
V. Conant
159
V. Pope
867
V. Cudney
545
V. Smith
1017,
1019
u. Fiedler 937
,946,961, 972
V. State
383,
1240
o. Hancock
901, 902
V. Wriglit 289, 314, 315, 357,
1250
V. Kemble
1318, 1327
Cutter V. Caruthers
324
Dance v. Robson
324
V. Cochrane
906,
1017
Dane v. Kirkwall
1254
V. Evans
770
V. Mallory
63
Cuttle V. Brockway 640,
1347,
1348
Danforth v. Carter
1200
Cutts V. Haskina
810
V. Walker
875
0. Pickering
578
Daniel v. Daniel
589, 1000
V. U. S.
623
V. Nelson
1196
Cujler V. Ferrill
338
V. North
237, 1350
V. McCartney 1165,
1166,
1167,
V. Pitt
1190
1199,
1200
V. Proctor
423
V. Ray 725, 1058,
1095, 1184
D.
V. Toney
V. Wilkin
718
194
Dabadie v. Poydras
920
Daniell v. Daniell
589, 1000
Dabbert v. Ins. Co.
268
Daniels v. Burso
1365
Da Costa v. Edmunds
962,
1243
V. Hamilton
1285
V. Jones
283
V. Mosher
510
Daggett V. Shaw
191,
1156
V. Potter
1204
V. Tallman
566
«. Stone
640
Dagleish v. Dodd
1103
Dann v. Kingdom
431
D'Aglie V. Fryer
653, 654
Danville Co. v. State
294
Dailey v. Grimes ,
513
Darby v. Ouseley 78, 438,
664,
665, 1092,
V. Monday
419
1103
Daily v. Coken
697
D'Arcy v. Ketchum
808, 818
V. State
335, 570
Darling v. Banks
1246
Dain v. Wyckoff
47
V. Dodge
64, 942, 991
Daines v. Hale
300
V. Westmoreland
44,
512, 1295
V. Hartley
975
Darlington v. Gray
800
Dairy Ass.
1142
V. Taylor
1140
Dakin v. Graves
123
D'Armond v. Dubose
699
Dalby v. Hirst
963
Darrah v. Watson
102
Dale V. Blackburn
523
Darrell v. Evans
15
V. Evans
1066
Darrett v. Donnelly
1101
V. Gear
1059
Dart V. Walker
1204
V. Gower
1156
Dartmouth v. Holdswortn
584
V. Hamilton
909
Darwin v. Rippey
626
V. Humfrey
969
Dauphin v. U. S.
305, 309
V. Moffitt
1061
Dave V. State
565
V. "Wright
123
Davenport v. Cumming
518
, 521, 838,
Dale, Ad'm, v. Roosevelt
810
1119
Dalgleish v. Hodgson
814
V. Harris
147
Dallas V. Sellers
509
V. Hubbard
789
Dalrymple v. Dalrymple 300, 306, 308, 313
V. Ogg
491
V. Hillenbrand
357
V. Mason
909, 1042
Dalton V. Dalton
797, 985
David V. R. R.
667
Daly V. ErricBon
1360
Davidson v. Bridgeport
663
V. Maguire
676
V. Cooper 622
623
, 625, 626,
Dalzell V. Davenport
447
627, 693
V. Mair
1065
V. Davidson
73
Dambman v. Butterfield
755
V. De Lallande
516
Dame v. Dame
1334
V. Murphy
824
u. Kenney
47
V. Norment
61
V. Wingate
758
V. Peck
822
679
TABLE OF CASES.
Davidson v. Stanley
V. State
Davies v. Dodd
V. Humphreys
V. Lowndes
V. Morgan
V. Nicholas
V. Pierce
V. Eidge
V. Waters
Davis V. Allen
V. Banks
V. Barrington
V. Black
V, Bowling
V, Campbell
V. Carlisle
V. Clements
V. Coleman
V. Dale
V. Davis
V. Detroit R. E
V. Dinwoody
V. Dodd
V. Dunham
V. Eastman
V. Elliott
V. Gallpupe
V. Forrest
V. Fox
V. Freeland
V. Gray
t). Headley
V. Hedges
V. Jenney
V. Johnson
V, Jones
V. Judge
V. Keene
V. Keyes
V. Lloyd
</. Loftin
V. Lowndes
V. Mason
V. Moody
V, Moore
V. Morgan
V. Murphy
V. Orme
V. Plymouth
V. Pope
V. Eainsford
V. Eandall
V. Eansom
V. Eeid
V. Ehodes
V. Eichardson
V. Roby
V. Eogers
V. Sanford
V. Shaw
V. Sherman
967
399
149
226, 229, 239
204, 214, 216, 219,
220, 222, 771, 776
187, 218, 233
1259
237, 1156, 1160
1199
537, 573, 588, 593
521
294
952
1305
357
262
629
120
624
550
797, 985, 1150
488
723
149
742
875
447
958
206
931
114
115
797
789, 790
357, 629
1318
927, 930, 1156
1157
1192
559, 561
228, 241, 653
977
220
444, 718
920
875, 910
1059
758, 789
205
466
1058
945
1058
834
540
115
697
566
288, 300, 314, 1252
681
937
1156, 1290
Davis V. Shields
873
V. Sigourney
139, 899
V. Spooner
737
V. Spurling
1104
V. State 49, 175,
177,437,439,
441,
452, 569, 1308
V. Stern
1019
V. Strohm
1044
V. Tallcott
790, 980
V. White
122
V. Whitehead
1212
V. Williams
67
V. Wood 201
, 206, 815, 831
Davis's Trusts
320
Davison v. Powell '
682, 684
V. Stanley
859
Davisson v. Gardner
64, 785, 988
Davoue v. Fanning
798
Daw V. Eley
594
Dawes v. Peck
876
V. Shed
1212
Dawkins v. Lord Eokeby
605, 722
V. Smith
1319
Dawley v. State
397
Dawson v. Atty.
1170
V. Callaway
1168
V. Dawson
974
V. Graves
141
W.Jay
817
V. Mills
1156, 1160
». Norfolk
1349
V. Smith
895, 900
V. Wait
466
Day V. Billingsly
1061
V. Cooley
549
V. Day
892
V. King
1308
V. Leal
947
V. Moore
96, 740
V. E. E.
883
V. Eaguet
357, 364
V. Stickney
545, 566
V. Trig
945
V. Wilder
1214
Dayton v. Warren
1042
Dazey v. Mills
1207
Deacle v. Hancock
185
Deakers v. Temple
1205, 1214
Dean v. Border
152
V. Fuller
509, 932
V. Mason
1014
V, Swoop
V. ThatMier
965
783
Deane v. Packwood
420
Dear v. Knight
549
Dearborn v. Cross
504, 1017, 1018
V. Dearborn
182, 183
De Armond v. Adams
797
V. Neasmith
24, 639, 647
De Bode v. E.
226, 309
De Bow V. The People
290
De Bruhl v. Patterson
1165
Deck V. Johnson
1215
680
TABLE OF CASES.
Decker v. Judson 770
V. Livingston 1362
De Cosse Brissac v. Eathbone 801
De Ende v. Wilkinson 808
Deer v. State 397
Deerfield v. Arms 1342
Deery v. Cray 760, 942
Deford v. Seinour 1064
De Forest v. Bloomingdale 1362
De Gaillon v. L'Aigle 1112
Degelos v. "Woolfolk 760
Deininger ji. McConnel 115
Deitsch v. "Wiggins 21
Delafield v. De Grauw 1014
V. Hand 110
. Parish
Delahay v. Clement
Delamater v. People
Deland v. Amesbury
Delaney v. Anderson
V. Robinson
Delano v. Bartlett
V. Goodwin
V. Jopling
V. Montague
Delaplaine v. Crenshaw
V. Hitchcock
Delarue v. Church
Delaunay v. Burnett
De la Vega v. Vianna
451, 1252
702
464
1063
936
1360, 1364
357, 629
936, 955, 1287
291
854
980 a
1150
1348
120
962
Delaware & Chesapeake Steam Tow-
boat Co. V. Starrs 437
Delaware St. Co. v. Starrs 444
Delaware Towboat Co. v. Starrs 446
Delesline !;. Greenland 1190
Dellinger's Appeal 431, 466
Deloach v. Worke 831
Delogny v. Rentoul 1090
Delony v. Delony 726
Delventhal v. Jones 901
Demarest v. Darg 784
De Medina v. Owen 1 103
Dement v. Stonestreet 760
Demerrit w. Meserve 1170
Demerritt v. Randall 446, 718, 721
Demesmey v. Gravelin 930
Deming v. Lull 1213
Dempsey et al. v. Kipp 923
Den V. Cubberly 942, 946
V. Dowman 825
V. Fulford 104
V. Gaston 1302
V. Gustin 111, 115
V. Hamilton 821
V. Herring 185
V. Lippmann 801
V. Vancleve 400
V. Van Houten 726
V. Winans 981
Dendy v. Simpson 45
Denison v. Denison 84
V. Hyde . 796, 808, 814
Denman v. Campbell 482
Denn v. Barnard
V. Pond
V. White
V. Wilford
Dennett v. Crocker
V. Dow
Denney v. Moore
Dennis v. Barber
V. Brewster
V. Chapman
V. Dennis
V. Hopper
V. Van Vay
V. Weekes
Dennison v. Benner
V. Leech
V. Otis
V. Page
Dennison's Appeal
Denniston v. McKeen
Denny v. Smith
Densler v. Edwards
Dent V. Ins. Co.
V. Steamsh. Co.
Denton v. Erwin
V. Hill
V. McNeil
V. Perry
V. Peters
Depau V. Humphreys
Depeau u. Waddington
De Pontfes v. Kendall
Derby v. Jacques
V. Salem
Derby's case
Derby Bank v. Lumsden
Derickson v. Whitney
Derisley v. Custance
De Roos Peerage
De Rothschild v. U. S.
Derrett v. Alexander
De Rutzen v. Farr
Desborough v. Rawlins
1332
151, 668
1217
943
77
550
64
90, 133, 162
147, 1273
1108
1021
115
674
1009, 1011
1167
781
661, 662
608
1012
1360
766
392
937
939, 961
1110
130
1170
1157
1069
1250
1060
891
781
655, 656, 657
1274
490
123
862
210, 220
309
135
234, 235
581, 687, 688,.
589
708
Desbrow v. Farrow
Desbrowe v. Wetherby
Deshon v. Ins. Co. 570
De Sobry v. De Laistre 119, 303, 321,
552
Despard v. Wallbridge 1031, 1032
Despan v. Swindler 324
Dessau v. Bours 951
Desverges v. Desverges 1354
De Tastet v. Crousillat 61
De Thoren v. Attorney General 1297
Detroit R. R. v. Forbes 863
V. Van Steinburg 175, 267,
444, 512, 513
Detweiler v. Gropp 444
Devall 0. Watterson 836
Devanbagh v. Devanbagh 1220
Devecmon v. Devecmon 890, 895
Dever v. Akin 1017, 1019
681
TABLE OF CASES.
Devin v. Himer
Devine v. Wilson
Devlin v. Williamson
Devling v. Little
V. Williamson
De Voss V. Richmond
Dewees v, Colorado Co
Dewett V. Piggott
Dewey v. Field
V. Goodenough
V. Hotchkiss
V. Osburn
V. Williams
De Whelpdale v. Milbum
De Winton v. Brecon
De Witt V. Barley
Dewling v. Williamson
De Wolf V. Johnson
V. Pratt
V. S trader
Dexter v. Booth
V. Hall
V. Hayes
V. Paugh
Deybel's case
Dezell V. Odell
Dial V. Moore
Diamond v. Tobias
Dibble v. Rogers
Dicas V. Brougham
V. Lawson
Dick V. Balch
V. State
Dickens v. Bcal
Dickenson v. Barber
V, Breeden
V. Clarke
V. Colter
V. Fitchburg
V. Johnson
Dickerman v. Graves
Dickerson v. Brown
V. Burke
V, Comxnis.
V. Turner
Dickey v. Malechi
Dickinson v. Barber
V. Clarke
V. Coward
V. Dickinson
V. Dustin
V. Gay
V. Glenney
V. Hayes
B. Stidolph
Dickson v. Breedon
< V. Burks
V. Fisher
V. Grissom
V. Lord Wilton
Dictator v. Heath
Didlake v. Robb
Diehl V. Emig
682
632
706, 1348
661, 662
262
116
1170
336
1154
1066, 1143, 1144
1216
620
758
551
1119, 1156
980 a
451, 512
693
962
856
581
427, 429, 431, 683
452
1315
820
339
1066, 1143
1053
1360, 1363
192
324
382, 495
111
545
123
451, 510, 512
287
1192, 1199
879, 1180
446, 480
451
429, 431
84
1301
952
1192
139
451, 510, 512
1192, 1199
1153
512, 616, 1050
397, 567
959
1029
811
890
130
1044
980
118
604
1022
1360
141, 466, 622, 1313
Dietrich v. Koch
Diez, in re
Dikeman v. Parrish
Dikes V. Miller
Dillard v. Dillard
V. Scruggs
Diller v. Johnson
V. Roberts
DiUett V. Kemble
Dillon V. Anderson
V. Barnard
Diman v. R. R.
Dingle v. Hare
Dinkins v. Samuel
Dinkle v. Marshall
Dishazer v. Maitland
Di Sora v. Phillips
D 'Israeli v. Jewett
District v. Dubuque
Ditchburn v. Goldsmith
Divers v. Fulton
Diversy v. Will
Divoll V. Leadbetter
Dixon V. Buck
u. Cock
V. Cook
V. Doe
V. Edwards
V. Hammond
^ V. Niccolls
V. R. R.
V. Thatcher
u. Vale
Doak V. Wiswell
Doane v. Badger
V. Eldridge
V. Garretson
V. Wilcutt
Dobbs V. Justice
V. Justices
Dobell V. Hutchinson
V. Stephens
D'Obree, ex parte
Dobson V. Campbell
V. Collins
V. Pearce
V. Racey
V. Richardson
Dock V. Hart
Dodd V. Acklom
V. Farlow
V. Norris
Dodder v. Huntingiield
Dodge V. Bache
V. Dodge
V. Dunham
V. HoUingshead
V. Hopkins
V. Morse
V. Nichols
V. Potter
V. Van Lear
Dodsley v. Varley
1049
123, 302, 303
640
61, 115
1199 0
262
931
833
1142
482, 955
840
1017, 1019
967
1298
1019
733
300, 302
648
980 a
283
155
492
421
1290
816
1026
640
466, 1060
1149
332
1318, 1319
115
539
789
1340
622
449
1040
262
359, 740
870, 872
931
990
1305
883
798
429
490
902
859, 860
958, 959
50, 51, 541, 542
317
515, 1173
861
505
1052
977
678, 688
1050
946
872, 1127
875
TABLE OF CASES.
son V. Sears
686
Doe V. Griffin
205
, 223, 1279
V. Allen
938
, 997, 1009
V. Gunning
66
V. Andrews 378, 379, 589, 592, 614,
V, Gntacre
653
653, 654
, 656, 1274
u. Hampson
1339
V. Arkwright
639, 1169
V. Hardy
1009
V. Ashley
1005
V. Harris
569, 590, 896
V. Barnard
1333
V. Harvey
61,217
V. Barnes
653,655, 1315
V. Hawkins
236, 1170
V. Barton
202, 216
V. Hilder
331,
1351, 1352
V. Baytop
1149
V. Hiscoks 937, 938, 946, 992, 993,
V. Benson
965
996, 997,
999, 1001,
1004, 1008
V. Beviss
231, 232, 246, 941
V. Hodgson
157
V. Beynon
998
V. Hubbard
993
V. Bingham
625, 626,
1313, 1314,
V. Haddart
766
1353
V. Huthwaite
999
V. Bird
1184
V. Jackson
942
V. Bower
1005
V. James
576
V. Bray
654, 656
V. Jesson
1274
V. Bridges
859
V. Johnson
356, 740
V. Brown
1315
V. Jones
237
, 862, 1157
V. Burdett
732
V. Keeling
146, 198
V. Burt
1002
V. Kemp
45, 46
V. Burton
229
V. Knights
625
V. Calvert
811
V. Lakin
670
V. Campbell
210
V. Langdon
585
V. Caperton
324
V. Langfield
237, 240,
1156, 1157
V. Cartwright
77, 78, 639
V. Ld. Jersey
1002
V, Catamore
629, 630
V. Lea
958
V. Chains
766
V. Lewis
1314
V. Chambers
694, 735
V. Litherland
1161
V. Chichester
945
V. Lloyd
282, 741,
1052, 1353
V. Cleveland
736,
1351, 1352
V. Lyne
704
t. Clifford
112, 150
V. Martin
946,
1002, 1353
V. Cockell
157
V. Mason
1313,
1314, 1353
V. Colcombe
236
V. McCaleb
141
V. Cole
82, 1156
V. Michael
227
, 234, 1274
V. Cooke
1333,
1353, 1357
V. Mobbs
236
V. Coulthred
226, 1156,
1157, 1332
V. Moffatt
855
V. Courtenay
859
V. Morgan
997
V. Crago
1259
V. Morris
62
V. Date
537, 593
V. Mostyn
824
0. Davies 202, 204, 214, 216, 704,
V. Murless
828
S88, 1274,
1351, 1352
V. Needs
993, 997
V. Deakin
1274, 1279
V. Nepean
1276
V. Derby
177, 769
V. Newton
707
V. Durnford
723
V. Owen
734
t. Dyeball
1333
V. Palmer
630, 1008
V. Egremont
537
V. Passingham
199
V. Eslava
291
u. Paul
729
V. Evans
179, 890
V. Pearce
195
V. Fleming
84
V. Pearsey
1339
V. Eord
935
V. Pembroke
210
V. Forwood
859
0. Penfold
725
V. Foster
177
V. Perkes
896, 900
V. Fowler
197, 656
V. Perkins
522, 523
V. Frankis
1154
V. Perratt
924
V. Galloway
945
V. Pettett
1160
V. Gardiner
1352, 1357
V. Phelps
210
V. Gilbert
585
V. Phillips
196, 703
V. Gildart
1360
V. Poole
859
V. Gladwin
1018
V. Powell
178
V. Gore
824
V. Pratt
1156
". Green
1156
V. Prettyman
740
683
TABLE OF CASES.
Doe V. Pulman
74, 199
V. Randall
204
, 205, 218
V. Rawlings
V. Reagan
u. Richards
703
451, 555
1184
V. Rickarby
V. Ridgway
V. Roberts
194, 827,
1156
202
833, 1175
V. Robinson 1170
V. Robson 226, 229, 239
V. Roe 66, 185, 732, 740, 821, 944
V. Ross 72, 74, 90, 131, 150
V. Rosser 800
V. Rowlands 356, 357
V. Samples 196, 732
V. Sampton 703
V. Seaton 587, 639
V. Shallcross 1012
V. Shelton 1040
V. Sisson 21, 44, 187
V. Skinner 247, 688
V. Sleeman 185, 187
V. Somerton 162
V. Spinner 246
V. Spitty 161
V. Stacey 236
V. Stanton 859
V. Statham 1044
V. Steel 872, 1119
u. Stratton 855
V. Suckermore 707, 708,712,717, 718
V. Sy bourn 1119
V. Taniere 1259
V. Thomas 188, 861, 1362
V. Thomson 379
0. Thynne 234
u. Turford 238, 239, 242, 246, 688,
1243
V. Vowles 229
V. Wainwright 736, 1156, 1213
V. Walley 1274, 1279
V. Watkins 587
V. Webber 265
V. Webster 1157, 1160
V. Whitefoot 142
V. Whitehead 356
V. Wilford 943
V. Wilson 706
u. Wittcomb 129, 141, 247
V. Wolley 734
Doeblin v. Duncan 1259
Doglioni v. Crispin 801, 811
Doherty v. Thayer 668
Doker v. Hasler 429
Dolan V. Briggs 986
Dolder v. Bank 323
V. Huntingfield 338
Dole V. Allen 657
V. Fellows 750
V. Johnson 439, 441
V. Thurlow 115, 391
V. Wilson 318
Dolittle V. Eddy 450
684
Doll V. Kathman 1017
Dollar Savings Bank v. Bennett 487
DoUarhide v. Muscatine Co. 1319
Dolling V. Evans 901
DoUoff w. Hartwell 980
Dolph V. Barney 286
Dolphin V. Aylward 785, 787
Domes. Miss. Appeal 1002
Don V. Lippman 316, 803
Dond W.Hall 715
Donaghoe v. People 708
Donahue v. Case 185
V. People 397, 485, 567
Donald v. Hewitt 311
Donaldson v. Jude 831
V. Phillips 643
V. R. R. 361, 439, 667
V. Thompson 814
Doncaster v. Day 177, 180
Donegal! ». Templemore 941
Donellan v. Donellan 414
ii. Read 859, 883
Donelson v. Taylor 393
Donkle v. Kohn 396
Donlery v. Montgomery 466, 468
Donley v. Bush 920
V. Tindall 948
Donn «. Lippman 316,803
Donnell u. Jones 501,509,823
Donnelly v. State 396, 529, 573
Donnison v. Elsey 188
Donohoo V. Brannon 100
Donohue v. Henry 414
V. People 397, 485, 567
Doody V. Pierce 466, 469
Dooley v. Cheshire 1147
V. Wolcott 833, 980
Doolittle V. Blakesley 944
Doon V. Donaher 157
Doran's case 537
Dorman v. Ames 120
Dome V. Man. Co. 1175
Dorr V. Pisher 357
V. Munsell 1019
Dorrett v. Meux 66
Dorsey v. Dorsey 288, 1168
V. Eagle 1026
V. Gassaway 775
V. Hagard 1044
V. Hammond 942
V. Kendall 795
V. Kollick 1134
V. Smith 726, 727
V. Warfield 451
Dorsey's Appeal 290
Dossett V. Miller 570
Dostcr V. Brown 444, 622, 684
Doty V. Brown 64
V. Janes 13B2
V. State 371
Dougan v. Blocher 909
Doughty V. Hope 63
Douglas V. Eellows 997, 1001
TABLE OF CASES.
Douglass, in re
389
Drant v. Brown
77
Douglass V. Bank
294
Draper v. Clemens
123
V. Davie
1089
V. Draper
391, 399
V. Forrest
803
V. Saxtou
448, 452
V. Hart
683
V. Snow
869, 977
V. Holme
1337
Draughan v. Bunting
880
V. Howland
869
<j. White
1064
V. Mitchell 872, 1100, 1101,
Draycott v. Talbot
653
1126, 1127
Dreisbach v. Berger
142, 147
V. Sanderson
201
Drennen v. Lindsey
490, 555
V. Tousey
49,53
Dresbach v. Minnis
1066, 1143
V. Wickwire
982
Dresser v. Ainsworth
357
V. Wood
540
Drew V. Prior
708
Dove V. State
451, 452
V. Swift
942, 945
Dow V. Clark
512
o. TarbeU
427, 430, 431
V. Jewell
1157
V. Wood
545, 566, 622
V. Moore
1061
Driggs V. Smith
517
V. Sawyer
678
Drinker v. Byers
1026
V. Way
901
Drinkwater v. Porer
187, 188
Dowclell V. Neal
416
DriscoU V. Fiske
944
Dowden v. Fowle
1213
Driver v. Miller
1061
Dowdney v. Palmer
393
Drohn v. Brewer
47, 529
Dowell V. Dew
909
Druley v. Hendricks
1044
Dewier V. Cushwa
151
Drumm v. Bradfute
123
Dowling 0. Hodge
64, 988
Drummond v. Atty. Gen.
940, 941
Dowman v. Jones
1061
V. Hopper
1331
Down V. Ellis
414, 467
V. Magruder
118
Downer v. Chesebrough
1059
V. Prestman
770
V. Dana
555, 557
Drumright v. State
1136
V. Morrison
872, 1127
Drury's case
1338
V. Smith
640, 643, 644
Drury v. Tremont Imp. Co
1042
Downes v. R. E. 466,
522, 523, 1101
Druse v. Wheeler
1315
Downie y. White
1014
Dryden v. Hanway
1031, 1035
Downing u. Butcher
47, 53
■ Drysdale's Ajipeal
Du. Barre v. Livette
1360
V. Pickering
151
582, 597
Downs V. Belden
470, 1166
Dublin case
507
V. Cooper
1190
Dubois V. Baker
511, 713, 718
V. R. E. 466
522,523, 1101
V. Bearer
1343
V. Scott
1360
V. Canal Co.
693
V. Sprague
444
V. Newman
740
Dows V. Bank
1070, 1141
V. E. R.
787
V. McMichael
982
Du Bost V. Beresford
253, 975
V, Montgomery
875
Duchess of Kingston's case
593, 606, 758,
V. Swett
878
765, 776
Dowty w. Sullivan
1199a
Duchess di Sora v'. Phillips
306
Dowzelot V. Eawlings
1196
Duckwall V. Weaver
730
Doyle V. Reilly
784
Ducoign V. Schreppel
681
V. St. James's Church 1077
Ducommunu. Hysinger
103
Dozier v. Joyce
324, 559
Dudley V. Bachelder
1031
Drabble v. Donner
155
V. Bolles
570
Draggoo v. Draggoo
490
V. Bosworth
1042
V. Graham
99
V. Stiles
789
Drake v. Dodworth
921
V. Sumner
726, 727
V. Drake
999, 1001
V. Vose
921
V. Duvenick
1303
Due! V. Fisher
392
V. Eakin
489
Duer V. Thweatt
982
V. Flewellen
294
Duff ti. Ivy
920
V. Eoster
393
V. Lyon
450
V. Glover
288
V, Wynkoop
741, 1052
V. Goree
961
Duffee, in re
630
V. Mooney
1318
Duiferin Peerage
653
V. Morris
117
Duffey V. Congregation
740, 1168
t. Wise
1143
Duffie V. Corridon
886
685
TABLE OF CASES.
Duffie V. Phillips 177
Duffield V. Delancey 356
Duffin V. Smith 588
Duffy, in re 1008
Duffy V. Hobson 697
V. Wunsch 879
Dugan V. Gittings 869, 882, 910
V. Mahoney 518, 519, 520
Duke V. Brown 377
V. Nav. Co. 661
Duke of Beaufort v. Smith 187
D. of Cumberland v. Graves 1 274
D. of Newcastle v. Clark 1340
D. of Somerset v. France 44
Dukes V. Broughton 758
Dulaney v. Dunlap 638
Duling V. Johnson 946
Dumaresly v. Fishly 83
Dumars v. Miller 864
Dumas v. Hunter 61
V. Powell 141
Dumont v. Pope 123
Dunagan v. Dunagan 1064
Dunaway v. School Direct. 1165
Dunbar v. Mulry 253
V. Parks
Duncan v. Bancroft
V. Beard
V. Blair
V. Com.
V. Duncan
V. Jlelms
u. Hill
V. McCullough
V. Stokes
V. Watson
Dunckle v. Wiles
Duncombe v. Prindle
Duncuft V. Albrecht
Dundas v. Dutens
Dundas's case
Dung V. Parker
Dunham v. Chatham
o. Chicago
V. Porbes
I'. Ins. Co.
Dunham's Appeal
Dunlap V. Cody
602, 726, 727
792
713, 733
902
64, 988
83
760
1243
505
814
251
64, 786, 793
290
864
910
1220
901
953
95, 108, 114
574
814
512
796
V. Glidden 64, 689, 988, 989
V. Hoarn . 430, 507
V. Higgins 1323, 1324
Dunlop u. Dougherty 118
Dunn V. Choate 147
V. Devlm 123
V. Dunn 552
V. Hayes 668
V. Keegin 837
V. Murray 788
V. People 557
V. Pipes 574, 783, 1064
V. Snowden 1276
V. Sparks 1061
V. Tnarp 882
686
Dunn V. Whitney
678
Dunn's case
Dunne v. English
V. Ferguson
Dunnell v. Henderson
Dunning v. Rankin
V. Roberts
30
366
866
1196
147
76, 617, 872
Dunning & Smith v. Roberts 76
Dunraven v. Llewellyn 185, 188, 190
Dupays v. Shepherd 317
Du Point V. Davis 208
Dupre V. McCright 1077
Dupree v. McDonald 1021
V. State 178
Durant v. Allen , 878
V. Ashmore 900
V. Essex Co. 781
Durbrow v. McDonald 1331, 1332
Durgin v. Danville 1266
V. Ireland 1022
V. Somers 1090
Durham v. Alden 1148
V. Beaumont 569
V. Daniels 294
V. Holeman 404, 409
V. State 568
Durkee v. Leland 155, 585
V. R. R. 76, 1128
Durnham v. Clogg 632
Durrell v. Bederly 436
V. Evans 75, 873
Dussert v. Roe 201
Dutchess Co. Bank v. Ibbotson 123
Dutillet V. Blanchard 127, 638
Dutton V. Solomonson 876
V. Tilden 931, 1064
V. Woodman 572, 1154, 1200
Duval V. Bibb 1048, 1049
Duvall V. Covenhoven 1190, 1191
V. Darby 515
v. Ellis 101
V. Peach 63
D welly V. DweUy 422
Dwight V. County 446, 447
Dwincl V. Pottle 682
Dwinelle v. Henriquez 489
Dwyer v. Collins 155, 160, 585
V. Dunbar 60
Dyce Sombre v. Troup 356, 1252
Dye V. Com. 178
Dyer v. Ash ton 1114
V. Dyer 1035
V. Elint 337
V. Homer 423
V. Last 325
V. Morris 491
V. Rich 977
V. Smith 130, 300, 302, 303, 305
V. Snow 116
Dygert v. Copperna 61
Dyke v. Williams 203, 215, 216
Dykers v. Townsend 75, 357, 873
Dynes v. Hoover 778
TABLE OF OASES.
Dyson v. Beckam
490
Eby's Appeal
807
V. Wood
824
Ecdes V. Harrison
1208
Dyte V. Guardians of St. Pancras 694
Eccleston v. Speke
1208
Eck V. Hatcher
489
Eckersly v. Piatt
899
E.
Eckert v. Cameron
1157
V. Eckert
909
Eads V. Williams
824
Eckford v. De Kay
464
Eady v. Wilson
980
Eckles V. Carter
1044
Eagle V. Emmet
1276
Ector V. Welsh
1077
Eagle Bank v. Ciiapiu
81, 161
Edan v. Dudfield
875
Eagleton v. Gutteridge
624, 632
^Eddy V. Bond
626
V. Kingston
707, 709, 717
V. Peterson
61, 123
Eakin v. Vance
135
V, Eoberts
880
Eakle v. Clarke
1199
Edeck V. Eanuer
699
Eames v. Eames
505, 1284, 1289
Edelen v. Gough
707
Ean V. Snyder
1252
Eden v. Blake
922, 926
Earbee v. Wolfe
1301
Edgar v. McArn
269
Eavl V. Lewis
198, 670
Edge V. Strafford
854, 863
V. Shoulder
838
Edgelli). Sigerson
797
V. Tapper
177, 268
Edgerly v. Emerson
923
Earldom of Perth
654
Edgerton v. Edgerton
1044
Earl of Bandon v. Becher
797
V. Hodge
877
E. of Bedford v. Bp. of Exeter 772
V. Jones
1052
Barle v. Grout
587
V. Mathews
873
u. Picken
1093
Edie V. East Ind. Co.
298
V. Rice
1021, 1038
V. Kiugsford
61
V. Sawyer
683
Edington v. Ins. Co.
606
Earl's Trusts, in re
123, 320
Edmond's Appeal
1021
Early v. Wilkinson
956, 1061
Edmonds v. Challis
157
Eavp V. Lloyd
755
V. Edmonds
357
Eason v. Chapman
565
V. Ld. Foley
756
East V. Chapman
539
V. Low
974
East Brandy wine E. E. v.
Eanch 1290
V. Walker
501
East. B. V. Taylor
1180
Edmondson v. Lovell
740
East India Co. v. Donald
487
Edmund's case
1265
East Ten. E. E. v. Duggan 1174
Edmunds v. Bushell
1171
Easter v. Allen
366
V. Downs
901
Eastern Counties Eailway Co. v.
V. Greenwood
490
Hawkes
694
V. Groves
1075
Eastern E. E. v. Beiiedict
75
Edrington v. Harper
1081
Eastland v. Jordan
740
Edson V. Freret
lUO
Eastman v. Amoskeag
153, 512, 1090
V. Muusell
1350
V. Bennett
262
Edwards v. Campbell
1362
V. Cooper
986
V. Crock
225, 977
V. Harteau
826
V. Def rickson
1156
V. Martin
223
V. Edwards
90, 136, 147, 980,
V, Waterman
980
1035
Eastmnre v. Laws
779
V. Ford
1108
Easton v. Pratchett
1060
V. Hall
864
Eastport V. East Machias
114
V. Ins. Co.
873
Eastward v. People
346
V. Jerons
1044
Eaton V. Alger
1064
V. Nichols
678
V. Campbell
115, 137, 740
«. E.
990
u. Corson
1165
u. Scull
632
V. Green
1031
V. Sullivan
555, 566, 726
V. Eice
514
V. Tracy
1192, 1193, 1194
V. Smith
961
V. Wakefield
490
V. Talmadge
201, 223, 1277
V. Williams
1138
V. Whi taker
909, 910
Edye v. Salisbury
993
^^ V. WoUy
513
Egan V.' Cowan
712
Eberts v. Eberts
116
Egbert v. Egbert
451, 530, 1252
Eby V. Eby 518, 1165, 1360, 1364
Egerton v. Mathews
869
687
TABLE OF CASES.
Egery v. Buchanan
833
Egg V. Barnett
1362
Bgleton V. Kingston
512
Eibert v. Finkheimer
881
Eichelberger v. Pike
834
V. Sifford
741
Eimer v. Richards
784
Ela V. Edwards
887
Elam V. State
565
Elbin V. Wilson
510
Elbing Act. Ges. v. Claye
950
Eld V. Gorham
290
Elden v. KeddeU
66,67
Elder v. Elder
936, 1021
V. Hood
1042
V. Ogletree
451, 996
Eldredge v. Smith
961
Eldridge v. Knott
1353
V. Smith
449, 969
Elfelt V. Smith
447
Eliott V. Smith
788
V. Thomas
874
V. White
123
Elkin V. Janson
356, 357
Elkins V. McKean
263
EUet V. Paxson
864
EUice V. :^owpeU
182
Ellicott V. Martin
1301
V. Pearl 185, 192, 201, 213, 216,
248, 570
llUinger v. Growl 1048, 1049
Elliot V. Hay den 1119
V. Kemp 1336
Elliott V. Boyles 528
V. ConneU 920
V. Dudley 1193, 1199, 1200
V. Evans 296
V. Hayden 773, 1112
V. Kent 1332
V. Maxwell 1031
0. Peavce 702
V. Peirsol 205, 214
V. Van Burcn ' 512
Ellis V. Buzzell 1246
V. Carr 1319
V. Crawford 946, 949
V. Derapsey 1204
V. Eastman 292
V. Ellis 912
u. Howard 1167
V. Huff 72, 90, 135
V. Kelley 796, 797
V. Lindley 1246
V. Madison 826, 980
V. Maxson 314
V. People 713
V. Portsm. R. R. Co. 360
V. Reddin 338
V. Short 40
V, Smith 142
V. Watson 1200
V. WiUard 1070
Ellison V. R. E. 980 a
Ellmaker v. Buckley 529
V. Ins. Co. 936, 1014
Ellmore v. Mills 98
Ellsworth V. Moore 1273
V. R. R. 977
Elmendorf v. Taylor 311
Elmondorff v. Carmichael 251, 636
Elmore v. Jaques 466
V. Kingscote 870
V. Stone 875
Elms V. Elms 896, 900
Elsam V. Faucett 47, 51
Elston V. City of Chicago 982
V. Kennicott 1064
Elting V. Sturtevant 447
Elton V. Larkins 549, 551, 961, 1184
Elwes V. Elwes 1022
Elwood V. Deifendorf 1 1 99
V. Lannon 836
Elworthy v. Sandford 146
Ely V. Adams 939
V. Alcott 1045
V. Kilborn 1058
V. Ormsby 875, 877
ElysTille v. Okisko 694
Emans v. Turnbull 1342, 1348, 1349
Embury v. Conner 765, 795
Emerson v. Bleakley 477, 480
V. Blonden 1217
V. Lakin 77
V. Lowell 439, 441
V. Providence Co. 702
V. Slater 904
V. Stevens 551
V. White 23
Emery v. Berry 289, 308, 310
V. Chase 1048
V. Estes 357
u. Fowler 180, 988
V. Grocock 1353
V. Hobson 697, 698
V. Mohler 1014, 1020
V. Smith 864, 883
V. Webster 940, 942
V. Whitwell 835
Emery's case 540
Emig V. Diehl 179
Emly V. Lye 951
Emmerson v. Heelis 866, 868
V. Herriford 789
Emmons v. Littlefield 1045
V. Overton 1061
Empire State, The 359
Empire Trans. Co. v. Wamsutta Oil
Co. 357, 359, 363
Enders t>. Richards 1167
V. Sternbergh 129
V. Williams 487
Endress v. Lloyd 1310
Engine Co. «. Sacramento 950
England v. Downs 633, 937
fj. Slade 1353
English V. Cropper 429
TABLE OF CASES.
English V. Johnson 644
V. Murray 810, 820, 1278
V. Register 1358
V. Smith 97, 98
Ennis v. Smith 300, 302, 305, 309, 817, 1097
Ennor v. Thompson 1053
Enosu. Tuttle 1173,1174
Enright v. E. K. 436
Entrilsen v. Brown 1331
Entwhistle v, Feighner 175, 263, 268, 475
Entwistle v. Davis 864
Ephraims v. Murdock 180
Episc. Church v. Laroy
Epps V. State
Erb V. Keokuk E. R.
V. Scott
Erben v. DoriUard
Erickson v. Smith
Erie P. K. u. Brown
Erie E. R. v. Decker
V. Heath
Errissman v. Errissman
Erskine v. Davis
Erwin v. Saunders
Escott V. Mastin
Esham v. Lamar
Eshleman's Appeal
Eshleman v. Harnish
Eslava v. Mazange
Esmay v. Groton
Essex Bk. v. Eix
^ Estabrook v. Smith
Esty V. Baker
Etheridge v. Palin
Eureka Ins. Co. v. Robinson
Eustace v. Goskins
Evans v. Ajigell
V. Ashley
V, Beattie
V. Boiling
V. Botterell
V. DaUow
V. Evans
i>. Getting
V. Hetlick
V. Hurt
V. Iglehart
V. Lipscomb
V. Lipscourt
V. Morgan
V. People
V. Pratt
V. Reed
t. Rees
V. Roberts
V. Eoe
V. Sweet
V. Taylor
V. Wain
Evansville v. Page
281, 496
1070
824
864
120, 176, 452, 640
1068
42
377, 755
491
1284, 1288
1058
98
1017
466, 473
881
466
912
393
1042, 1047, 1049
945
920
175
1364
1005
873
1212
90, 133, 521
1266
896
366,414, 1107, 1140,
1220
664
175
185
820
404
412
77, 84
510
940, 961
177, 465, 477, 824
187, 198, 200, 385, 631,
703, 794, 800
Evansville R. R. v. Hiatt
44
901
154
190, 194, 827, 833
965, 970
945
Eveleth v. Wilson 920, 936
Evelyn v, Haynes 792
Everett v. Lowdham 491
Everingham v. Roundell 90, 133
Everitt v. Everitt 139
Everly v. Bradford 240
V. Cole 490
Evers v. Ins. Co. 431
Eversou v. Cai-penter 555
«. Fry 1026, 1044
Everts v. Agnes 910
Ewart V. Morrill 682
Ewbanks v. Ashley 645
Ewell V. State 205, 220
Ewer V. Ambrose 549, 1105
V. Coffin 808
Ewing V. Gray 366
u. Osbaldiston 539
V. Savary 223, 1277
V. Tees 864
V. Thompson 864
Exchange Bank v. Monteath 744, 750
V. Russell 1019, 1030
Ex parte Bamfourd 266
Briggs 745
Eyerman v. Sheehan 511
Eyre v. Eyre 909
V. Ins. Co. 965
Eyster v. Hathaway 1052
Eystra v. CapeUe 1046
F.
361
Fabbri v. Ins. Co.
96S
,971
Fabrigaz v. Mostyn
174
Facey v. Otis
939
Fagnan v. Knox
451
FaU V. McArthur
266
1194
Fain v. Edwards
571
V. Garthright
114
Fairbanks v. Fitchburg
448
V. Kerr
1296
Fairbrother v. Shaw
910
Fairchild v. Bascomb 403
451, 45S
, 507
V. Rassdall
1031
Fairfax v. Fairfax
724
Fairfield v. Hancock
1058
V. Thorp
1170
Fairlee v. Hastings 1 1 73, 1 1 74,
1177,
1180,
1183
Fairlie v. Christie
627
V. Denton
951,
1154
Fairly v. Fairly
549
Falconer v. Hanson
1106
Falkner v. Leith
1192
Falkoner v. Garrison
920
Fallon V. Dougherty
151
v. Kehoe
949,
1030
V. Murray
760
V. Robins
1022
Falmouth v. Roberts 622,
623, 726
1124
V. Thomas
867
689
TABLE OF CASES.
Fancher v. De Montegre 336
Faneuil Hall Bank v. Bank of Brigh-
ton 1316
Fankboner v. Fankboner 920
Fant V. Miller 697
Farebrothcr v. Simmons 868
Faribault v. Ely 153
Farina v. Home 875
Faringer v. Ramsay 903
Faris V. Dunn 1032, 1035
Farlane v. Handle 980
Farley v. Budd 982
V. Cleveland 879
V. McConnell 1278
V. Stokes 864, 909
Farmer v. Grose 1031
V. Lewis 1183
V. Rogers 865
Farmers' Bank v. Boraef 518, 520, 521
i>. Day 937, 972, 1062
V. Gilson 135
V. King 1273
V. Leonard 1364
V. Lonergan 152
u. McKee 1170
V. Strohecker 529
V. Whinfield 937
V. Young 439, 443, 453,
572
Farmers' Ins. Co. v. Bair 622, 629
Farmers' & Mech. Bank v. Sprague 958,
967
Farnam v. Brooks 931
V. Clemants 1031
V. R. R. 363
Farnsworth v. Briggs 717
V. Hemmer 965
V. Rand 986
Farnum u. Blackstone 1260
V. Burnett 1044, 1045
w. Farnum 40, 1061
Farquharson v, Seton 788
Farr v. Payne 1284
V. Swan 645, 1355
Farrah v. Keat 383
Farrand v. Marshall 1346
Farrar v. Beswick 1320
V. Farrar 861
V. Fessendcn 65, 115
V. Hutchinson 1064, 1207, 1365
V. Merrill 1349, 1352
V. Smith 1044
V. Stackpole 961
Farrel v. Lloyd 1026, 1035
Farrell v. Bean 1019, 1031
V. Brennan 451, 1252
Farrington v. Donohue 883
Farson's Appeal 870
Farwell v. Lowther 870
Fash V. Blake 709
Fassett v. Brown 726, 1314
Faucett v. Currier 929, 932, 1014
V. Nichols 38
690
Faulder v. Silk
1254
Faulds V. Jackson
886
, 888
Faulkner v. Brine
549
V. Johnson
1315
V. Whitaker
175
Faulks V. Burns
861
Faunce v. Gray
182
Fauntleroy v. Hannibal
293
Fausset v. Faussett 433,
1175,
1220
Fawcett v. Bigley
1180
Faxon v. HoUis ,
682
Fay V. Richmond
967,
1315
V. Smith
626
Fayette Co. v. Chitwood
120
Fazakerly v. Wiltshire
339
Feagan v. Cuneton
262
Featherman v. Miller
394
Federal Hill Co. v. Mariner
6^
, 988
Feldman v. Gamble
357
Felker v. Emerson 1217, 1251
Fell V. Toung 703, 732
Feller v. Green 931
Fellowes u. Williamson 1102
Fellows V. Menasha 123, 320, 324
0. Pedrick 120, 740
Felter v. MuUiner 831
Felton V. McDonald 61
V. Sawyer 995
Fendall v. Billy 240
Fenderson w. Owen 937, 939, 977
Fennell v. Tait 384; 402
Fenner v. Lewis 1212
V. London & South Eastern
Railway Co. 582, 593, 742
Fennerstein's Champagne 175
Fenno v. Fenno 84
V. Weston 1154
Fenton v. Emblers 883
V. Reedy 83
Fenwick v. Bell 444, 452
V. Bruff 1021
V. Fenwick g33
V. Reed 582, 586
V. Thornton 766, 1210
Ferdinand v. State 338
Ferebee v. Ins. Co. 1064
Ferguson v. ClifFord 120
V. Etter 768
V. Glaze 920
V. Haas 1019
V. Mahon 801, 803
V. Rutherford 572
V. Staver 1165
V. Sutphen 935
Fernandez, ex parte 538, 540
Fernley v. Worthington 147, 813
Ferrers v. Arden 758
Ferris v. Goodburn 1007
Ferry v. Taylor 1090
Fessenmayer v. Adcock 1336, 1337
Fetherly v. Wagoner 734
Feversham v. Emerson 765
Few V. Guppy 756
TABLE OF CASES.
Eickett V. Swift
1194
Fidler v. McKinley
1077
Fiedler v. Darrin
482
Field V. Boynton
238
V, Brown
466, 1334, 1349
V. Flanders
797
V. Holbrook
1017
V. Langsdorf
837
V. Lelean
929, 969
V. Mann
1022, 1026
V. Monlson
1141
V. N. Y. Cent. E.
R. Co. 43
V. Pelot
952
V. Bunk
875
V. Smith
833
V. Stagg
632
V. Thompson 518, 520, 685
V. Thornton 123
V. Tibbets 1165
Fields V. Stunston 1058
Fife et al. v. Commonwealth 980
Fifield V. Richardson 258, 259
V. Smith 492
Figg V. Wedderburne 206
Filer V. Peebles 1287
V. E. R. 268
Filkins v. Baker 522
V. Whyland 946
Filliter v. Phippard 1294
Filmer v. Gott 931, 1019, 1046, 1047
Finch V. Alston 1331
V. Finch 138, 139, 882, «89, 910
u. Gridley 719
Findley v. State 11
Finn v. Com. 177
V. Wharf Co. 366
Finnerty v. Tipper 32
Finney v. Boyd 758
V. Finney 784
u. Forward 490
V. Ins. Co. 920
V. State 421
Finney's Appeal 1030
Finncane v. Small 363
Fire Insurance Co. 1032
Firkins v. Edwards 155
First Baptist Church v. Ins. Co. 558
First Nat. Bk. v. Balcom 1285
V. Green 572
V. Haight 445, 566
V. Kidd 120
V. Leach 1363
V. McManigle 1323, 1363
V. OceanlCB. 1175, 1180
V. Priest 152
V. "Wood 469
Fish «. Cleland 1069,1170
V. Dodge 450
V. Holley 788
V. Hubbard 956
V. Lightner 793
Ksher v. Bank 123
V. Butcher 740
Fisher v, Clement 1263
V. Deibert 507, 931, 945
V. Deibert's Adm'r 1028
V. Fisher 1125
V. Fobes 1036
V. Heming 586
V. Hoffman 718
V. Kitchingham 824, 831
V. Kyle 180
V. Longnecker 795
V. Meister 10.52
V. Ogle 814
V. Ronalds 535, 538
V. Samuda 140
V. True 1163
V. Tucker 1196
Fishmongers' Co. v. Robertson 1085
Fisk V. Chester 482, 508, 955
V. Kissane 141
V. Norvel 810
Fiske V, Kissane 151
Fitch V. Bogue 151
V. Carpenter 961
V. Chapman 176, 1163 a, 1183
V. Hill 432
V. Jones 356
V. Pinckard 661
V. R. R. 360
V. Smallbrook 397, 831
V. Woodruff 1014
Fitchbnrg v. Lunenburg 120, 936
Fitchburg Railroad Co. v. Freeman 448
Filler v. Beckley 1044
V. Eyre 521
II. Shotwell 643
Fitshugh V. McPherson 795
Fitts V. Brown 936
Fitz V. Comey 942
V. Rabbits 147
Fitzgerald v. Adams 60, 61
V. Clark 936
«. Dressier 879
V. Elsee 730
V. Fitzgerald 177
V. O'Flaherty 1084
V, Pendergast 21
V. Smith 931
Fitzgibbon u. Brown 53
V. Kinney 518, 521, 678
Fitzherbert v. Mather 1170, 1173
Fitzhugh V. Croghan 726, 727
V. Runyon 1028
Fitz James v. Moys 602
Fitzmaurice v. Bayley 901
Fitzpatrick v. Dunphey 1336
V. Fitzpatrick 825
U.Harris 1103
V. Pope 115
Fitzsimmons v. Ins. Co. 814
Fitzwalter Peerage 219, 704, 719
Flagg W.Mason 191,262,1031
V. Searle 528
Flanagin v. Champion 1200
691
TABLE OF CASES.
Planagin v. Leibert 249
V. State 399, 421
Flanders v. Fay 906, 1017, 1019, 1022
V. Thompson 122
Flanigan v. Turner 837
Flanigen v. Ins. Co 287
Flash V. Ferri 551
Fleeger v. Pool 66
Fleet V. Morton 44, 951, 965, 969
Fleming v. Clark 63
V. Fleming 997
V. Gilbert 904, 906
V. McHale 1019, 1031
V. State 401
V. The Insurance Co. 988
Fletcher v. Braddyl 1325
V. Fletcher 487
u. Froggatt 1108
V. Holmes 783
V. R R. _ 551
Fletcher's Succession 935
Flinn v. Calow 1014
V. McGonigle 142
Flint V. Bodge 788
V. Clinton 694
V. Conrad 1051
V. Flint 619, 1292
V. Sheldon 1031
V. Trans. Co. 259, 1173
U.Wood 1017
Flitcroft V. Fletcher 490
Flitters v. AUfrey 758
Florence i\ Jenings 788
Florentine v. Barton 1302
Flournoy v. Newton 63
Flower v. Herbert 1151
Flowers v. Haralson 205
V. Helm 1196
Floyd V. Bovard 529
V. Hamilton 1184
u. Johnson 333
V. Ricks 332
V. State 538, 540
V. Wallace 528, 551
Flynn v. Coffee 1274
V. Ins. Co. 63, 175
u. McKeon 1017
V. R. R. 360
Fogassa's case 321
Fogg V. Griffin 1170
V. Pew 1175
Fogleman v. State 559
Foley V. Mason 492
V. Wyeth 1346
Folger V. Ins. Co. 803, 808
Folk V. Wilson 1194
Folkes V. Chadd 444, 445
Follain v. Lefevre 324
Follansbee u. Walker 420, 601, 780, 785,
988
Follett V. Jefferyes 588, 590
V. Murray 137
Folly V. Smith 420
692
Folsom V. Batchelder
1190
V. Brown
1246
V. Chapman
477
Fonsick v. Egar
178
Foot V. Bentley
93, 133
V. Hunkins
551
V. Northampton Co.
863
V. Stanton
888
V. Tracy
53
Foote V. Bryant
1036
V. Cobb
726, 727
Footman v. Stetson
789
Foquet v. Moor
857, 859
Forbes v. Howard
447
V. Wale
733
V. Waller
482, 508
Ford V. Batley
1004
V. Finney
909
V. Ford
565, 924
V. Haskell
414, 1173
V. James
930
V. Peering
840
V. Simmons
367
V. Sirrell
961a
V. Smith
73,77
V. Teal
1052.
V. Tennant
579
V. Wadsworth
129
V. Williams
950, 1165
Forde v. Com.
551
Fordham v. Wallis
1201
Fordyoe v. Goodman
290, 295
Foresman v. Marsh
643
Forman v. Crutcher
1318
Forman's Will
895, 899
Forney v. Ferrell
541, 1199
V. Hallacher
84
Forniquet v. R. R.
1131
Forrest v. Forrest
130, 872, 1119
Forrester v. Torrence
419
Forsaith v. Clark
1318
Forsee v. Matlock
678, 681
Forshaw v. Chabert
622, 627
V. Lewis
490
Forshee v. Abrams
1246
Forster v. Rowland
873
Forsythe v. Hardin
725
u. Kimball
1058
V. Norcross
246, 682
Fort V. Brown
441
V. Gooding
1124
Fort Wayne R. R. v. Gildersleeve 1175
Forth V. Stanton 879
Fortier v. Zimpel 821
Fortin v. Engine 661
Forward v. Harris 160
Fosgate v. Herkimer 674
V. Thompson 466
Foss V. Edwards 9S2
V. Foss 433
V. Hildreth 1099
Foster v. Bank of England 748
V. Blakelock 1121
TABLE OF CASES.
I?oster V. Brooks
226
V. Charles
1258
V. Com.
782
V. Compton
831
V. Cookson
833
V. Davis
123
V. Dow
135
V. Hale
1034
V. Hall
1578
V. Hawley
1297
V. Holley
V. Ins. Co.
699
1155
V. Jolly
929, 1044
1058
V. Leeper
1323
V. Mackay
151, 152, 715
V. McGraw
949
1027
V. Mentor Life Assur. Co. 969
V. Newbrough 152, 562, 1064
V. Nowlin 690
V. People 544
V. Pierce 535, 539
V. Pointer 160
I'. Purdy 1017; 1019
V. Reynolds 1049, 1056
u. Rockwell 1249
V. Sinkler 678
V. Taylor 288
V. The Richard Busteed 775
V. Trull 63
u. Wood 798
Foster, in re 484, 500
Poster's Will 602, 676, 713
Pouke V. Ray 115
Foulk y. Brown 1351, 1352
Poulkes V. Sellway 52
Foulks V. Rhea 1274
Fountain v. Boodle 48, 49, 256
Pountaine v. R. R. 1170
Poute M. McDonald 117
Fow V. Blaekstone 1058
Powell V. Porrest 1018
Powle V. R. R. 792
Fowler v. Brantly 632
V. Collins 819
u. Fowler 1019, 1022
V. Hollins 950
V. Ins. Co. 47
V. Lewis 665
V. Middlesex 447, 1290
V. More 135
V. Savage 794
Fox !). Clipton 1194
V. Pox 823
V. Hilliard 357
«. Lampson 1108
V. Matthews 415
V. Reil 725
V. Thompson 1352
V. Union Sugar Eef. Co. 1039
V. Waters 1199
Foxcroft V. Crooker 644
Joy V. Blaekstone 1044, 1058
Poye V. Leighton 723
Frain v. State 397
Fralich v. People 481, 483, 484, 539, 569
Fralick v. Presley 141, 529, 1155, 1156
Framingham Co. v. Barnard 1100
France v. Andrews 1297
V. Lucy 154
Franchot v. Leach 931
Francis v. Boston 1083
V. Dichfield 993
V. Hazlerig 835
w. Howard 986
V. Ins. Co. 147
Franey v. Miller 644, 669
Frank v. Frank 256, 1252, 1254
V. Miller 901
Frankfort R. R. v. Windsor 446, 447
Franklin v. Long 875
V. Macon 515
V. Mooney 946
Franklin Banku. Cooper 1175, 1207
V. Nav. Co. 1179
V. Steam Co. 555
Frary v. Sterling 883
Fraser v. Child 864, 908
V. Hunter 185
Fraser, in re 891
Frayes v. Worms 801
Frazer v . Tupper 5 1 0
Frazier v. Frazier 760
</. R. R. 48, 49, 56
V. Robinson 699
Frear v. Drinker 420
V. Evertson 1165
Freeh v. R. R. 357, 359, 361
Frederick v. Atty. Gen. 213
V. Campbell 940, 945
Free v. Hawkins 1058, 1059
V. James 248
V. Meikel 1019
Freeholders;;. State 1313
Freeland v. Cocke 620
V. Field 240
V. Heron 1140
Freeman v. ArkeU 148
V. Baker 639
V. Bass 920, 921
V. Cooke 1143, 1155
V. Creech 64, 986
V. Curtis 1029
V. Preeman 856, 903, 909
V. Gainsford 864
V. Howell 1140
V. Morey 1323
V. Phillips 193, 194
V. Reed 190
V. SteggaU 725
w. Tatham 1107
• V. Thayer 1313, 1354
Freemanfle v. R. R. 357, 360
Freestone v. Butcher 1257
Freleigh v. State 574
Fremont v. U. S. 291
French o. Bums 1032
693
TABLE OF CASES.
Trench v. Frazier
810, 820,
1278
Furbush v. Goodwin
923, 1064
V. Prench
810,
1278
Furly V. Newnham
384
B. HaJl
814
Furnas v. Durgin
21
V. Hayes
940, 942
Furneaux v. Hutchins
44
V. Howard
784
FurneU v. Stackpoole
320
V. Merrill
570
Furness v. Hone
965
V. Millard
41'
, 563
Furrow v. Chapin
431
V. Neal
758
Fursdon v. Clogg
232
V. Piper
1290
Fusting V. Sullivan
1026, 1044
V. Price
1362
V. Venneman
48C
,489
V. Vining
336
6.
Preno v. Freno
674
Freyman v. Knecht
1290
Gackenbach v. Brouse
1214
Freytag v. Hoeland
1031
Gaff V. Harding
1066
Friclier's case
382
Gaffney v. The People
68, 555
Friend's case
540
Gage V. Hill
795
Fries v. Brugler
552
V. Jaqueth
937, 1014
Frieze v. Glenn
910
V. Lewis
931
Frink v. Coe
268
V. "Wilson
61
V. Green 1015, 1044,
1048
Gagg V. Tetter
1294
V. Potter
1296
Gahagan v. People
84
Frith V. Barlser
959
V. R. R.
361, 451, 512
V. Sprague
300
Gaine v. Ann
740
Fritz V. Brandon
1338
Gaines v. Com.
443, 551, 561
Frosh V. Holmes
1302
V. Gaines
1129, 1133
Frost V. Blanchard
921
V. Kimball
136
V. Brown
1226
V. New Orleans
201, 203, 208,
V. McCargar
569
210
V. Shapleigh
64, 988
V. Page
61
Frostburg v. Mining Co.
876
u. Relf
175, 657
Fry V. Chapman
62
Gains v. Hasty
175
V. Wood
178,179
Gaither v. Brooks
823
Frye v. Banlt
562
V. Gaither
1008
V. S.hepler
909
V. Martin
147, 175, 1156
Fryer v, Gathercole
511
Galbraith v. Galbraith
945
V, Patrick
937
V. Neville
801
Fugate V. Pierce 414
433, 464
,478
Galbreath v. Eichelberger
538, 541
Fuller V. Carr
942
Gale V. Currier
61
V. Dean
53
V. Norris
240, 654, 684
V. Fenwick
800
V. People
483
V. Fotch
816
V. Williamson
1046, 1048
V. Fuller
387
,395
Galen v. Brown
939
V. Hampton
1090
Galena Ins. Co. v. Kupfer
961
V. Hooper
75
Galena R. R. v. Fay
361, 551
V. Hutchinga
1301
Gallagher v. Black
939
V. Princeton
664
V. Williamson
1163, 1164
V. Reed
864
Gallaher v. Vought ■
1321
V. Saxton
210
Galloway v. McKeithen
982
V. Scott
881
Galpin v. Atwatcr
921
V. Smith
1363
V. Page
808, 980, 1304
FuUerton v. Bank of XJ. S
357
V. R. R.
360
V. Rundlett
1027,
1059
Gait V. Galloway
640
Fulmerston v. Steward
859
Galway's Appeal
Gamble v. Johnson
1044
Fulsome v. Concord
512
265, 1156
Fulton V. Gracey
838, 872,
1119
Gambrill v. Parker
377
V. Hood 718,
719, 930,
1067
Gammage v. Moore
1021
V. Maccraoken
411
Ganahl v. Shore
678
Fulton Bank v. Stafford
529
Gandee v. Stansfield
594
Funcheon v. Harvey
357
Gandolfo v. Appleton
559, 1194
Funk 0. Dillon
430
V. State
49
V.Ely
Furber v. HUliard
678
Ganer v. Lanesborough
306
719
Gangwer v. Fry
864, 909, 910
694
TABLE OF CASES.
Gangwere's Estate
408, 566, 1254
Ganley v. Looney
942
Ganson v. Madigan
961
Garden v. Creswell
379, 382
V. Garden
1276
Gardiner v. Gardiner
451
V. People
441
V. Suydam
1066
Gardner v. Bartholomew
567, 569
V. Buckbee
765, 769
V. Collector
290, 295
V. Dangerfield
755
V. Gardner
634, 865
V. Grout
875
V. Humphrey
983, 986
V. Lewis
305
V. Moult
1190
V. O'Connell
852
V. People
265, 346, 1265
u. Sisk
981
V. Walsh
626
u. Way
684
Garfield v. Douglass
826
Garland v. Cope
237, 1157
V. Harrison
1165
V. Lane
368
V. Scoones
831
V, Tucker
802
Garlock v. Geortner
1362
Garnar v. Bird
" 1029
Garner v. Garner
999
V. Myrick
1090
Garnet v. Bell
1191
Garnet, ex parte
319, 320
Garnharts v. U. S.
1302
Gamier v. Kennier
1362
Garnons v. Barnard
186
Garrahy v. Green
1165
Garrard v. Haddan
626
Garrels v. Alexander
707, 709, 712
Garrett v. Ferguson
952
o. Garrett
1085
V. Handley
950
V, Jackson
1352
V. Lyle
758
V. R. B. 980 a, 1068, 1309
V. State
507, 551
Garrick v. Williams
980
Garrigues v. Harris
115, 118
Garrison v. Akin
1077
Garrison's Succession
817
Garry v. Post
1277
Garside v. Proprietors
364
Garteside v. Outram
590
Garth v. Howard 1173, 1174, 1175, 1180
Garvey v. Waysou 639
Garvin v. Carroll 108
V. Wells 293
V. Williams 470
Garwood v. Dennis 122
II. Garwood 784
V. Hastings 115
Gashwiler v. Willis 702
Gaskell v. Morris 821, 828
Gaskill V. King 429
V. Skene 1136, 1154
Gass V. Stinson 565
Gates V. Brower 950
V. Johnson Co. 297, 317, 338
V. Kieff 668
V. McKee 869
V. Mowry 1165
V. Preston 758, 790
V. State 115
V. The People 570
Gatewood v. Bolton 557
Gathercole v. Miall 147, 148
Gatliu V. Walton 781
Gatling v. Newell 175
Gaugh V. Henderson 1044
Gaul V. Meming 358
Gauldin v. Schee 1258
Gaunce v. Backhouse 1201
Gavan v. Ellsworth 177
Gavin v. Buckles 469
V. Graydon 769
Gavinzel v. Crump 920
Gavisk v. E. R. 513
Gavit V. Snowhill 103
Gaw V. Hughes 1039
Gawtry v. Doane 123, 251
Gay K.Bates 1090
V. Ins. Co. 454
V. Lloyd 99, 1092
V. Smith 795
V. Southworth 357
V. Welles 988
Gayetty v. Bethune 1350
Gayle v. Bishop • 1 574
Gaze V. Gaze 888
Geach v. Ingall 356, 357
Geary v. Kanas 693, 694
V. People 561
V. Simmons 758
Geaves v. Price 892
Gebb V. Rose 1029
Gebhart v. Shindle 418, 429
Geddy v. Stainback 930
Gee V. Ward 193, 194, 213, 216
V. Wood 213
Geer v. Winds 1008
Gehrke v. State 451, 665
Gelott V. Goodspeed 727
Gelpcke V. Blake 1014, 1049
Gelston v. Hoyt 814, 1284
Gelstrop v. Moore 986
Gen. St. Na-vig. Co. v. Guillon 801, 803,
804
V. Hedley 331
V. Morrison 331
Gentry v. Dooliu 689
V. Garth 115
George v. Bartoner 864
V. Harris 1068
V. Jesson 1277
V. Joy 521, 939, 944, 961
695
TABLE OF CASES.
George v. Surrey
V. Thomas
V. Thompson
Georgia R. K. v. Rhodes
Geralopulo v. Wieler
Gerdes v. Moody
Gerding v. Walker
Gerhauser v. Ins. Co.
Gerish v. Chartier
Gerke v. Steam NaT. Co.
German Ass. v. Sendmeyer
German Bank v. Kerlin
Gerrish v. Pike
V. Sweetser
V. Towne
Gerry v. Hopkins
V. Stimson
Gery v. Redman
Geter v. Comm.
Geyer v. Aguilar
V. Irwin
Gibhes v. Vincent
Gibblehouse v. Strong
Gibbon v. Featherstonhaugh
Gibbons v. Wilcox
Gibbs V. Bryant
V. Cook
V. Linabury
V. Linsley
V. Neely
V. Newton
V. Pike
Giberton v. Ginochio
Gibney v. Marchay 1089,
Gibson ;;.• Bank
V. Culver
V. Doeg
V. Foster
V. Gibson
V. Holland
V. Hunter
V. Jeyes
V. Nicholson
V. Watts
V. Williams
V. Winter
Gicker's Adm'rs v. Martin
Giffovd V. Dyer
Gigner v. Bayly
Gilbart v. Dale
Gilbert v. Bulkley
V, Duncan
V. Gilbert
V. New Haven
V, Ross
V. Sykes
Gilchrist v. Bale
V. Brooklyn
V. Cunningham
V. Grocer's Co.
V. McKee
696
696, 707
262
155
1243
125
1019
1336
178
27, 28, 35
1174
632, 633
574
551
1090
942
748
1031, 1050
1156
681
816
390
1274, 1276
1163
1362
1200
771
727
557
570
1205
389
1305
725
1137, 1140,
1157
1066
971
1356
1302
451, 1009
872, 1127
30,39
1248
794
1019
510
1207
1214
1008
742
363
861, 930
1026
266
640
135
555, 572
883
263
521
1019, 1031
683
562
Gildersleeve v. Caraway 180, 514, 1109
Giles V. Dyson
1121
V. Halbert
837
V. Siuey
824
V. Warren
900
V. Wright
468
Gilham v. State
562
Gilkey v. Peeler
422
Gill V. CampbeU
490
V. Clagett
1021
V. Herrick
878
V. Strozier
1165
Gilland v. Sellers
324
Gillanders v. Ld. Rossmore
863
Gillard t). Bates
589
Gillespie v. City
359
V. Gumming
831
V. Mather
837
V. Moon 1019, 1021,
1022,
1024
V. N. Y.
361
V. Walker
1215
Gillett V. Borden
1019
V. Gane
999
V. Stanley
1272
Gilliam v. Chancellor
992
V. Perkinson
696
, 727
Gilliat V. Gilliat
1005
Gilligan v. Boardmau
869
Gillilaud v. Sellers
324
Gillinghan v. Tebbetts
1165,
1196
Oilman v. Hill
874, 875
V. Moore
1058
V. Riopelle 114, 115
, 508
V. Rives
782
V. Veazie
1068
Gilmore v. Holt
641
V. Wilbur
357, 866
V. Wilson
518
Gilpatrick v. Foster
619,
1126
Gilpin V. Fowler
1263
Gilsou V. Gilson
1217
Gilston V. Hoyt
323
Giltinan v. Strong
770
Giltner v. Gorham
412
Gimball v. Hufford
60
Giraud v. Richmond
883, 901
Gisborne v. Hart
824
Gist V. McJenkin
785
V. McJunkin
163
Gitt V. Watson
1273
Given v. Albert
510
Givens v. Bradley
47
Gladstone v. King
1170
Glanton v. Griggs
1163 a
Glascock V. Nave
63
Glasgow V. Ridgeley
722
Glass V. Gilbert
1335
1349
I'. Hulbert 856, 905, 910
1019,
1021,
1024
Glassell v- Mason
141. 151
Glave V. Wentworth
1107
Glaze V. Whitley
569
Glazier v. Streamer
1095
TABLE OP CASES.
Gleadow v. Atkin
Gleason v. "Florida
Glen V. Glen
Glendale Co. v. Ins. Co.
Glenn v. Bank
V. Clove
V. Garrison
V. Glenn
V. Grover
V. Harrison
V. Eogers
V. Salter
Gliddon v. Goos •
V. McKinstry
Glisson V. Hill
Globe Ins. Co. v. Boyle
GIossop V. Jacob
Glover o. Hunnewell
Glubb V. Edwards
Glyn V. Caulfield
Glynn v. Bank
V. Houston
V. Thorpe
Goblet V. Beechey
Godard v. Gray
Godbee v. Sapp
Godbold V. Bank
V. Blair
Goddard's case
Goddard v. Gardner
V. Gloninger
U.Hill
V. Long
V, Parr
V. Pratt
V. Putnam
V. Sawyer
Godden v. Pierson
Godfrey v. Codman
V. Macanlay
V. State
Godofrey v. Jay
Godts V. Rose
Godwin v. Francis
Goffi). Mills
Goggans v. Monroe
Goignard v. Smith
Gold V. Canham
V. Phillips
Golden!;. Knowles
V. State
Goldicutt V. Townsend
Goldie V. McDonald
Goldshede v. Swan
Goldsmidt v. Marryat
Goldsmith v. Bane
V. Picard
V. Sawyer
Goldstein v. Black
Goldthorpe v. Hardman
Golson V. Elbert
Goltra V. Sanasack
Gomez v. Lazarus
226
Gonzales v. McHugh
446
63
Goooh V. Bryant
1175, 1200
945
Goodall V. Little
589, 593
920, 938
Goodell, ex parte
747
416
Goodell V. Hibbard
1273
567
V. Labadie
1019
830, 834
V. Little
582
83, 653
Goodered v. Armour
159
977
Gooderich v. Allen
464
828
Goodhue v. Bartlett
709
1015
V. Berrien
739 o
1140
V. Clark
23
63
Goodier v. Lake
142
359
Goodin v. Armstrong
1133
1031
Goodinge v. Goodinge
993
1170, 1172
Goodliffj). Fuller
743
335
Goodman v. Chase
880
523
V. Goodman
84
726
V, Griffin
315
593, 756
V. Griffiths
870, 872
1135
V. Holroyd
490, 590
751
V. Simonds
632, 1301
980, 982
V. Stroheim
482
972, 1003
Goodnow V. Parsons
1077
801, 814
0. Smith
823
1199
Goodrich v. City
785, 840
109
V. McClaxy
937
678
V. Stevens
95
978
V. Tracy
1217
588
V. Warren
53
248, 1338
V. Weston
73,93
1058
V. Wilson
29
775
V. Tale
788
547
Goodright v. Hicks
47
175, 253
V. Moss
608
1127
Goodspeed v. Fuller
1042
977
Goodtitle v. Baldwin
1348
516
V. Dew
187
682
V. Southern
945
675
Goodtitle d. Baker v. Milburn 1312
1271
Goodwin v. Ann. Co.
661
824
u. Appleton
339
969
V. Carr
1331
617, 872
V. Harrison
269
382, 495
V. Jack
194, 198, 703
1245
Goodwyn v. Goodwyn
98
147
Goodyear v. Vosburgh
713, 718
801
Goom V. Aflalo
75
879
Goosey v. Goosey
1249
840
Gordner v. Heffley
1158
1269
Gordon v. Bowers
176
882
V. Bucknell
638
1284, 1285
V. Clapp
1101
937, 1044
V. Gordon 924,
1042, 1046, 1049
743
V. Hobart
287
708
V. Kennedy
789
55
V. Ld. Eeay
890
298
V. Miller
726
721
V. Parmelee
838, 1246
1305
V. Price
■ 708
1175
V. Saunders
868
1021, 1029
V. Searing
130
1059
V. ShurtlifE
175
697
TABLE OF CASES.
Gordon v. Ward
315
Graham
V. Hollinger
1101
Gordon's case
384
V. Howell
466, 469
Gore V. Bowser
590
V. Loekhart
1207
V. Elwell
135
V. Oldis
154
V. Gibson
1077
V. Pancoast
1017
V. Hawsey
1154
V. People
576, 590
Gorman v. Montgomery
683, 685
V. Whitely
66, 1308
V. State
84
V. Williams
115, 288
Gorrison v. Perrin
972
Grand Trunk R. E. u.
Richardson 43,
Gorton v. Hadsell
715
360
Gosewich v. Zebley
684
Grandy
V. Ferebee
1183
Gosling V. Birnie
1149, 1150
V. MePherson
262
Goss V. Austin
468, 472
Granger v. Bassett
480
V. Nugent 901, 902, 906, 920,
1014, 1017
V. Quinton 180, 1109
Gosse V. Tracey 178, 723, 726
Gosset V. Howard 324, 1302, 1308, 1309,
1318
Gossler v. Eagle Sugar Refinery 715,
961
Gothard v. Flynn 863
Gott V. Adams Express Co. 715
Goucher v. Martin 909, 1017
Goudy V. Hall 982
Gouge V. Roberts 1291
Gough V. Crane 357, 909
u. St. John 47
Gould V. Conway 521
V. Coombs 626
V. Crawford 418
i>. Jones 708
V. Kelley 726
V. Lee 132, 1019
V. McCarthy 742
V. Norfolk Lead Co. 549, 556, 955
V. R. R. 759, 782, 840
V. Stanton 775
V. Trowbridge 151
Gouldie v. Gunstou 1151
Goulding V. Clark 1308
Governor M. Baker 1175
V. Bancroft 826
V. Roberts 394
Gower v. Sterner 1021
Grace v. Adams 1070, 1243
V. McKissack 1142
Gracie v. Morris 129
Gradwohl v. Harris 1133
Grady's case 1310, 1314
Graff V. E. B. 142, 1068, 1069
Grafton Bank v. Doe 1360
V. Moore 1200
Gragg V. Richardson 823
Graham v. Anderson 324, 337, 1053
V. Bennet 83
V. Busby 1155, 1156
V. Chrystal 563
V. Cox 1363
V. Davis 363
V. Glover 384
V. Graham 864
V. Hamilton 61, 939, 942
698
V. Clark 797
V. Swart 1342
0. Warrington 601
Grannis v. Branden 538
V. Irvin 689
Grant v. Bagge 336
V. Coal Co. 120, 309, 662
V. Cole 240
V. Fletcher 75
V. Grant 467, 949, 998, 1220
V. Harris 833
V. Jackson 1099, 1200
V. Lathrop 940
V. Lewis 1166
V. Maddox 940, 961 a
V. McLachlin 814
V. Moser 339
V. Naylor 901
V. Paxton 961
V. Thompson 451
V. Vaughan 1125
Grant's Succession 420
Gratz V. Beates 616, 1156
u. Gratz 909
Graves v. Adams 1070
V. Clark 1058
V. Dudley 1066
V. Griffin 466
V. Joice 758
V. Keaton 287
V. Key 1064, 1143, 1365
V. Legg 1243
V. Moore 1363
V. Moses 439
V. Weld 866
Gray v. Bond 1350
V. Boswell 1022
V. Cole 429
V. Cooper 468
V. Cruise 1802
V. Davis 114
V. Earl 1165
V. Gardner 357
V. Gray 820, 1331, 1360
V. Haig 487, 1265
V. Harper 937, 962, 971
V. Hodge 782
V. Kernahan 160
V. McLaughlin 268
V. McNeal 795
TABLE OF CASES.
Gray v. Nations 1204
V. Palmers 1200
V. Pearson 924
V. Pentland i 604
V. Pingry 779
V. Eoden 1019
V. St. John 505, 565
V. Swan 814
Grayson v. Atkinson 889
Greasons v. Davis 116, 305
Greathead v. Bromley 759
Greathouse v. Dunlap 931
Great Tails Co. v. Worster 191, 797
Great Pond Co. v. Buzzell 120
Great West. Co. v. Loomis 528
Great West. Ins. Co. v. Rees 731, 1044
Great West. E. E. v. Bacon 367
V, Haworth 572
u. WiUis 267, 1170,
1174, 1180
Greaves v. Hunter 708
0. Legg 1243, 1250
Greely t). Quimby 60
V. Smith 781
V. StUson 1290
Green's case 401
Green v. Armstrong 866
V. Bedell 268, 783, 838, 1102
V. Brown 1283
V. Caulk 175, 521
V. Cawthorn 394
V. Chelsea 733
V. Clark 1039
V. CressweU 880
V. Dishrow 879
V. Durfee 120
V. GiU 69
V. Gould 500
V. Harris 1136
V. Holway 697
u. Howard 993
i). Ins. Co. 1170
. V. Man. Co. 1064
V. Meriam 875
V. New Eiver Co. 823
V. North Buffalo 1209
w. R. E. 311
V. Eice 559
V. Rugely 314
V. Saddington 909
V. Shipworth 616
V. State 147
V. U. S. 464
V. Walker 31
V. Weller 290, 637
Greenabaum v. Elliott 789
Greene v. Day 937, 939
V. Godfrey 1052
V. Harris 883
Greenfield v. Cushman 183
Greenfield's Estate 931
Greenfield Bk. v. Crafts 1137, 1323
Greenleafi;. E. E. 219,1296
Greenlee v. Greenlee 909
V. McDowell 1365
Greenough v. Eccles 549
V. GaskeU 576, 577, 579, 588
V. Greenough 726, 952
V. McClelland 1061
V. Shelden 153
Greenahield v. Pritchard 390
Greenshields v. Crawford 701
V. Henderson 1273
Greenville u. Henry 415
Greenway, ex parte 149
Greenwood v. Lowe 366, 1248, 1249
V. Spiller 120, 216
Greer v. Higgins 1180
Gregg V. Forsyth 127, 638
V. Jamison 558
Gregory v. Baugh 338
V. Logan 869
V. MigheU 909
V. Mitchell 1148
V. Parker 1217
V. Taverner 526
v. Walker 510, 1165
Gregson v. Euch 75
Greider's Appeal 864
Gremaire v. Valon 1317
GreviUe v. Chapman 435, 509
V. Taylor 630
V. Tylee 897
Grey v. Grey 1035, 1362
Grider v. Clopton 931
Gridley w. Conner 1110
Grierson v. Mason 1015, 1022
Griffin v. Bixby 1343
V. Brown 823
V. Carter 315
V. Cowan 1044
V. Isbell 515
V. Keith 879
V. N. J. Co. 935
V. Eanney 697
V. Eichardson 760
u. E. E. 1174,1175
V. Seymour 782
V. Sheffield 155, 694
V. Smith 429
0. State 563
V. Wall 549
Griffing v. Gibb 287
Griffith V. Clarke 768
V. Eshelman 559
V. Erazier 810
u. Griffith 769
V. Huston 738
V. Tunckhouser 117
V. Turner 1212
V. Young 909
Griffiths V. Jenkins 863
V. Payne 291
V. Williams 1188
Griffilts V. Ivory 710
Grigg's case 426
699
TABLE OF CASES.
Grigsby v. Water Co.
454
Grim V. Bonnell
1173, 1183
Grimes v. Bastrop
1348
V. Fall
152
V. Grimes
63
V. Kimball
131, 1265
V. Martin
491
Grimm v. Hamel
180
Grim man v. Legge
859, 860
Grimmell v. Warner
357, 358
Grims v. Tidmore
353
Grimshaw v. Paul
1175
Grinnel v. Wells
51
Grinnell v. Tel. Co.
942, 1180
Grinstead v. Foute
1302
Grisham v. State
83
Grissell V. Bristowe
1243
Griswold, ex parte
894
Griswold v. Gallop
293
V. Haven
1142
V. Messenger
1048
V. Newcomb
541
V. Pitcairns
110, 319
Groesbeck v. Seeley 640, 643, 1042, 1049
Groffi!. Kamsey 115
Groning v. Ins. Co. 814
Grooms v. Rust 1165
Groshon v. Thomas 393
Grosvenor v. Tarbox 825
Grove v. Fresh 661
V. Hodges - 1026
V. Ware 162
Grover v. Grover 101
Groves v. Groves 1037
Grubb V. Grubb 1040, 1156
Gnibbs V. Nye 1090
Grumley v. Webb 1064, 1066
GrymesM. Sanders 1017,1019
Guardians of Poor v. Nathans 84, 424
Gudgen v. Bassett 625
V. Besset 927
Gue V. Kline 1064
Guernsey v. Ins. Co. 1019
Query v. Kinsler 466
Guest V. Warren 78T
Guidry v. Jeanneaud 763
Guild V. Richardson 986
Guille w. Swan 1296
Guiterman v. Landis 1145
Gull i: Lindsay 880
Gully V. Bishop 141
Gumm V. Tyrie 925
Gumo V. Tanis 120
Gump's Appeal 1019
Gunter v. Halsey 912
V. Watson 501
Gurnea v. Seeley 781
Gumey v. Howe 640, 643
V. Langlands 722
Gntzwiller v. Lackman 47
Guy V. Mead 516, 520, 522, 680
V. Sharpe 940
V. Washburn 1319
700
Guy V. West
1340
Guyette v. Bolton
1064
Gwillim V. Gwillim
888
Gwin V. Bradley
53
Gwinn v. Radford
739
Gwyu V. Neath
1039
Gwynn v. Hamilton
1029
V. Setzer
61
Gwynne v. Davy
1018
Gyger's Appeal
466
Gyles V. Hill
94
Gypford v. Woodgate
833
H.
Haack v. Fearing 517
Haak v. Breidenbach 601, 785, 988
Habergham v. Vincent 890
Habersham v. Hopkins 366
Hackett i'. Bonnell 98
V. CaUender 1079
w. Reynolds 863
V. R. R. 512
Hackman v. Flory 1216
Hackney v. Ins. Co. 1068
Hadden v. Collector 980 a
Hade v. Brotherton 99
Hadfield v. Jamieson 170, 319
Hadjo I'. Gooden 565, 569
HadJey v. Bean 141
V. Carter 269
V. Greene 789
V. MacDougall 756
V. Pickett 767
Hagedorn v. Reid 1330
Hageman v. Salisberry 824,982, 1148
Hagenbaugh v. Crabtree 1 136
Hager v. Thomson 366
Hagey v. HiU 920
Haggerty v. Fagan 945
Hahn v. Kelly 795
^. Savings Co. 1194
Haighu. Kaye 931, 1038
Haight V. Haight 259
Haile v. Pierce 1060, 1061, 1062
Hain v. Kalbach 1019
Haines v. Haines 909
V. Pearce 1363
V. Roberts 1344
V. Thompson 1031
Hair v. La Brouse 1058
V. Litfle 366, 1046
V. Melvin 826
Haire v. Wilson 1263
Haldane i\ Harvey 1264
Hale V. Handy 921, 1022
V. Hazelton 357
V. Henrie 863
V. Monroe 1157
V. N. J. Steam Navigation Co. 308
V. Patterson 1052
I). Rich 1157
TABLE OF CASES.
Hale V. Silloway
1108
V. Stone
739
u. Taylor
266, 502, 955
V. Wilkinson
697
Hales V. Bercham
910
Haljburton v. Kershaw 1264
Hall, in re 223, 1274, 1277
Hall V. Acklen 60, 114
V. Bainbridge 1314
V. Ball 74, 145, 146
a. Cazenove 977
V. Clagett 1019
V. Davis 939
V. Farmer 869
V. Fisher 1005
V. Gardner 980
V. Gittings 733
V. Glidden 682
V. Griffin 1149
V. Hall 863, 1042
V. Hamlin 797
t). Hill 973, 974
V. Hinks 1167
V. Hnse 1077, 1095
!/. Kellogg 1307
V. Lund 1346
V. Luther 739
V. Mayo 191, 208, 1165
V. McDuff 863
V. McLeod 1349, 1350
V. Naylor 33
V. Odber 801, 805
V. Patterson 1052
V. Phelps 725, 730
V. Bay 518
V. Simmons 558
V. Stanton 33
V. State 265, 469, 510, 1 101
V. Steamboat Co. 268
V. The Emily Banning 480, 1094
V. Warren 1253
V. Williams 96, 808
V. Young 263, 558
HaUeck v. Cambridge 1308
V. State 1133
Hallen v. Eunder 863
HaUenbeck v. De Witt 932
Haller I!. Crawford 1170
V. Pine 758
V. Worman 1186
Hallett V. Collins 83
V. Cousens 503
V. Eslava 135, 824
Hallev V. Webster 562
Halliday v. Hart 1014, 1058
V. Martinet 240
V. McDougal 251
HalloweU v. Page 833
Halls V. Thompson 1017
Halsey v. Blood 134, 1066
V. Sinsebaugh 518, 522, 683
V. Whitney 633
Halsted v. Brice 830
Halsted v. Meeker 940, 942
Ham V. Goodrich 864
V. Ham 339
Ham's case 84
Hamblett v. Hamblett 1090
Hambright v. Brockman 1199
Hambrook v. Smith 754
Hameline v. Bruck 624
Hamer v. McFarlin 53
Hanierton v. Stead 857, 858, 859
Hamilton v. Conyers 1019
V. Hamilton 1254
V. Jones 909
V. Marsden 723, 726
V. Nott 594
V. Paine 1077
V. People 565, 584, 1226, 1227,
1237
V. E. E. 436, 444, 473, 562
V. Eice 525
V. State 259
V. Van Swearingen 90
Hamilton Co. v. Goodrich 552
Hamlin v. Dingman 1315
V. Hamlin 1148
Hammack v. White 359
Hammam v. Keigwin 940
Hammat v. Euss 838
Hammatt v. Emerson 115, 1170
Hammersley v. Baron de Biel 873, 882,
910, 1145
Hammersmith v. Brand 360
Hammon v. Huntley 1199
V. Southeastern E. E. Co. 360
Hammond v. Bradstreet 668
V. Cooke 1347
V. Harrison 1064
V. Hopping 160
V. Inloes 286, 293
V. Ludden 147
u. Stewart 378
V. Varian 705, 707
V. Woodman 444
Hammond's case 708, 714, 719
Hampshire v. Floyd 142
Hampton v. Dean 988
V. McConnel .96, 808
Hamsher v. Kline 701, 739 a
Hanby v. Tucker 1050
Hancock v. Fairfield 951, 1061
u. Ins. Co. 1274,1276,1277
V. Watson 939
V. Welsh 776, 779
V. Wilson 21
Hand v. BaUou 850
V. Grant 684
Handley v. Jones 175
V. Eussel 826
Handly v. CaU 1101
Handy v. Johnson 259
V. State 773
Haney v. Donnelly 1183
Hanford v. Artcher 482
701
TABLE OF CASES.
Hanford v. McNair
Hanham v. Sherman
Hankin v. Squires
Hankins v. Baker
Hanley v. Erskine
V. Gandy
Hanlon v. Ingram
Hanna v. Curtis
V. Price
V. Wray
Hannaford v. Hunn
Hannah v. Wadsworth
Hannay v. Stewart
V. Thompson
Hannefin v. Blake
Hannum v. Belqhertown
V. Tourtellott
Hanover R. R. v. Coyle
Hanrick v. Andrews
Hansard v, Robinson
Hansley v. Hansley
Hansom v. Armitage
Hanson v. Armstrong
V. Church
V. Eustace
V. Kelley
V. Millett
V. Parker
V. Shackleton
V. South Scituate
Hantz V. Sealy
Happy V. Morton
V. Mosher
V. Wisconsin Bank
Harbers v. Tribby
Harbin v. Roberts
Harbold v. Kuater
Harcourt v. Harrison
Hardee v. Williams
Harden v. Hays
Hardenburg v. Cockroft
Hardenbnrgh v. Lakin
Hardesty v. Jones
Hardin v. Kirk
V. Kretsinger
Harding v. Brooks
V. Cragie
V. Hale
V. State
V. Strong
Hardman v. Chamberlin
V. EUames
Hardy v. Houston
V. Matthews
II. Merrill
Hargraves v. MiUer
Hargroves v. Cooke
Haring v. R. R,
Harker, in re
Harker v. Dement
Harkins's Succession
Harlan v. Harlan
Harlow v. Boswell
702
634
785
357
875
1161, 1163 6
712, 719
1294
1165
151
466
815
1047
1173, 1180
1031
185
601
980
1173
284
149
1220
875
141
574
153, 1267, 1347
151
1215
1210, 1213
332, 335
120
83,84
509
263, 1175
430
120
779
1014, 1019, 1051
47
417
550, 739
511
175, 1041
883
1053
160
47
723
785
782
339
690
753, 755
643
944
512
412
869
361
900
63
1019
141
920
Harlow v. Stinson
1349
V. Thomas
1050
Harman v. Gurner
997
V. Reeve
873
Harmar v. Davis
1151
Harnden v. Nav. Co.
363
Harper v. Bank
115
I,-. Burrow
177, 537
V. Cook
137
V. Hancock
151
V. Lamping
545
V. Long
120
V. R. R.
541
V. Scott
142
V. West
619, 1126
Harper's Appeal
1032
Harrel v. State
492
HarreU v. Culpepper
1156,1165
V. Durrance
619, 936
Harriman v. Brown
227, 1163/
V. Stowe
263, 268
Harrington v. Baker
1290
t). Pry
701
V. Gable
725
V. Lincoln
569, 1090
Harris, in re
896
Harris v, BerraU
894
V. Brooks
1061
V. Caldwell
683
V. Com.
668
V. Cooper
85
V. Crenshaw
909
V. Dinkius
1028
J). Doe
942
V. EUiott
1339
V. Eubanks
61, 734
V. Goodwyn
1018, 1305
V. Hardeman
795
V. Harris
864
V. Haynes
980 a
V. Ingledees
1252
V. Knickerbocker
909, 912
V. O'Loghlin
339
V. Packwood
363
V. People
290
V. Pepperell
1022
V. Pierce
1060
V. Porter
883
V. R. R.
665
V. Rathbun
961
V. Ryding
1344
V. State
551, 569
V. Story
1243
V. Thompson
1263
V. Tippett
561
V. Whitcomb
152
V. Willis
795
V. Wilson
1200
Harris's case
1324
Harrisburg Bank v. Tyler.
1170
Harrison v. Barton
949
V. Blades
179, 239, 728
V. Brock
417
TABLE OF CASES.
Harrison v. Castner
1048, 1049
Harvey v. Anderson
1077
V. Creswick
800
a. Butchers
875
V. Elvin
634, 889
V. Cady
958
V. Gordon
561
V. Clayton
579
V. Harrison
265
V. Grabham
901, 902, 906
V. Henderson
1103, 1127
V. Billiard
466
V. Howard
1019
V. Ledbetter
1035
V. Kirke
482, 955
V. Mitchell
23, 116, 154
u- Kramer
106
V. Morgan
154
V. McKim
1060
V. Smith
3
V. Middleton 516, 518, 525
u. State 438,
524, 665, 666
V. Rowan
451
V. SuUens
1009
V. Shook
47
V. Thomas
826
V. Southampton
797, 1297
V. Thornton
1279
V. Southcote
536
V. Thorpe
72, 90, 116
V. Vallance
1163
V. Vandegrift
944
V. Wisdom
1204
V. Ward
758
V. Wright
H42
V. Wild
771
Harrod v. Harrod 401
, 406, 1297
Harvie v. Turner
763
Harrod's Heirs v. Cowan
1017
Harwood v. Keys
1213
Harshaw v. Moore
1165
Hasbrouck v. Baker
377
Harshey v. Blackmarr
796, 808
V. Vandervoordt
422
Hart V. Alexander
673, 675
Haskell v. Champion
626
V. Bodley
338
Haskins v. Ins. Co.
447
V. Bush
876
Haslam v. Crow
82, 220
V. Clouser
626
Hassam v. Barrett
1033
V. D earner
1254
Hassell v. Borden
115
V. Freeman
1102
Hastings v. Livermore
559
V. Frontino, &c. Gold Min. Co. 1147
V. Pepper
1070
V. Hammett
961
V. Rider
439, 441
V. Hart 144, 147
, 433, 1313
V. Uncle Sam
446
V. Horn
1213
V. Wagner
352
V. Livingston
684
Hastings Peerage
1219
V. Newcomb
1133
Hatch V. Bates
115
V. Powell
265
V. Carpenter
142
V. Robinett
160
V. Dennis
1163, 1163 a
V. R. R.
294
V. Gilmore
979
V. Roper
1258
V. Hyde
1056
V. Sattley
876
V. KimbaU '
1148
V. Stone
106, 107
V. Pengnet
468
V. Woods
868
V. Potter
1108
Hart's Appeal
Barter v. Christoph
838, 1090
Hatcher v. Robertson
882, 910
1028
Hatchett v. Conner
643
Hartford v. Palmer
402, 418
Hatfield v. Perry
123
V. Power
414, 467
V. Thorp
723
Hartford Bridge Co. v. Granger 1090
Hathaway v. Addison
65, 1310
Hartford Ins. Co. v. Harmer
445
V. Brady
1028
V. Webster
936
V. Clark
1316, 1355
V. Wilcox
1026
V. Evans
194
Hartford Ore Co. v. MiUer
1021
V. Goodrich
833
Hartley v. Brookes
682
u. Haskell
1201
V. Chandler
826
V. Johnson
1170
V. Cook
639
V. Spooner
151
V. Wharton
901
Hathorn v. King
451, 512
Hartman v. DiUer
1165, 1166
Hatton V. Robinson
587
V. Ins. Co.
507
V. Warren
969, 1027
V. Ogborn 768, 795, 797
Hauherger v. Root
1199
Hartshorn v. Williams
175
Haugh V. Blythe
429, 883
Hartung v. Peeple
443, 707
Haughey v. Strickler
21, 1192
HartweU v, Camman
961
Haun V. Wilson
47
V. Root
1319
Hauseman v. Sterling
742
Harty v. Ladd
1053
Haven v. Asylum
663
Harvard CoUege v. Gore
1097
V. Brown
939
703
TABLE OF CASES.
Haven v. R. E.
692
V, Wendell
518
Havens v. Thompson
Haver v. Tenney
Haverly v. Mercur
Haves v. Marchant
937
946
881
1150
Havis V. Taylor
Haward v. Davis
823
892, 900
Hawes v. Armstrong
V. Forster
869
74,75
V. Ins. Co.
445
V. Shaw
1149
V. Watson
1150
Hawkins v. Carr
490
V. City of Fall Eiver 446
V. County 1332
V. Craig 136, 827, 833
V. Grimes 718
V. Hall 837
V. Howard 576
V. Luscombe 1208
V. Rice 129
V. State 508
V. Warre 61, 77
Hawks V. Charlemont 44, 347, 441, 1295
V. Inhabitants 1293
V. Kennebec 324
V. Truesdell 824
Hawley v. Bader 1064
V. Bennett 1160
. V. Cramer 632
V. Keeler 876
V. Mancius 797
Haws V. Tiernau 781
Hawthorne v. City of Hoboken 114, 294
Hawver v, Hawver 431
Hay V. Hay 429
■• V. Kramer 249
V. Moorhouse 77
Haycock v. Gerup 714
Hayden v. Denslow 1035
V. Mentzer 1042, 1044, 1048
V. Stone 554
V. Thayer 689
Hayes v. Caldwell 533
V. Dexter 1315
V. Hayes 1008
V. Kelley 1140
V. Levingston 1148
V. Shattuck 764, 797
V. West 886, 992
Haylock ti. Sparke 1107,1117
Hayne «. Porter 116
Haynes v. Brown 662
V. Cowen 824
0. Crutchfield 1154
V. Haynes 334
V. Hay ton 1107, 1118
V. Heard 490
V. LedyE^rd 529
V. Eutter 726
Hays V. Askew 1040
V- Cage 1082
704
Hays V. Dexter 1315
V. GaUagher 361
V. Gribble 1353
V. Harden 726
V. Hays 414, 433, 478, 696
V. Ins. Co. 920
V. Quay 1035
V. Richardson 537
V. Riddle 159
V. Tribble 1279
Hayslep v. Gymer 1136, 1138
Hayter v. Tucker 864
Hayward v. Bath 690
V. Carroll 129, 1116
V. French 466, 468, 469, 472
V. Munger 979
Hayward Rubber Co. v. Duncklee 1103
Haywood v. Cope 1017
V. Foster 508
V. Moore 1044
V. Reed 1165
Hazard v. Robinson 1350
Hazzard v. Municipality 293
Head ;;. Head 1298, 1299
V. McDonald 823
V. Shaver 515
. V. State 566, 1102
Headlam v. Hedley 1339
Heald u. Thing 175,451,452,455
Healey v. Thatcher 1090
u. Thurm 1348
Heane v. Eogers 1079, 1151
Heard v. Lodge 770
V. McKee 1101
Hearne v. Chadbourne 977
Hearst v. Pujol 933
Heath v. Creelock 589
V. Frackleton 784
V. Page 33, 824
V. West 253, 1295
Heathcote's case 334
Heathcote's Divorce 648
Heaton v. Findlay 588, 589, 1160
V. Fryberger 1021
Heavenridge v. Mondy 1029
Heaveriu u. Donnell 1058
Hebblethwaite v. Hebblethwaite 464,
483
Heberd v. Myers 289
Hecht V. Koegel 1049
Heckscher v. Binney 939
Hedden v. Overton 694
Hedge v. Clapp 556
Hedges u. Horton U63 a, 1163 6
Hedrick v. Bannister 1363
V. Gobble 1101, 1168
V. Hughes 129, 135
Hedricks v. Morning Star 1070
Heebner v. Worrall 1023
Heely v. Barnes 393
Heeter v. Glasgow 741, 1052
Hefferman v. Porter 778
Heffield v. Meadows 940, 1044
TABLE OF CASES.
Heffington v. White
120
Hensoldt v. Petersburg
290
Heffher v. Reed
833
Henthorn v. Shepherd
338, 635
Heft V. Gephart
Heiker v. Com.
1353
Hepburn v. Auld
1353
782
V. Bank
415
Heilner v. Imbrie
920, 936
Hepworth v. Hepworth
1035
Heinemann v. Heard
357
Herbert v. Alexander
1184
Heister v. Madeira
1031
V. Sayer
862
Helm V. Steele
1207
V. Tuckel
208-
Hellman, in re
1250
V. Wise
942
Hellman v. Reis
698
Hereth v. Bank
626
Helme v. Ins. Co.
937, 965
Herlock v. Riser
678
Helrarichs v. Gehrke
920
Hern v. Nichols
1170, 1180
Helser v. McGrath
529
Herndon v, Casiano
106, 644
Helsham v. Blackwood
776
V. Givens
824
Hemenway v. Smith
583
V. Henderson
936, 1014
Heniing v. Power
975
Heme v. Rogers
1077
Hemmens v. Bentley
573
Herrick v. Baldwin
623
Hemming.s v. Gassou
32
V. Bean
1044
Hemphill v. Bank
288, 300
V. Carman
1059
u. Dixon
739
V. Odell
429
V. McClimans
142
Herring v. Cloberry
579
Hempstead v. Reed
288
V. Goodson
1298
Henck v. Todhunter
797, 985
V. Rogers
156, 690, 736
Hendee v. Pinkerton
693
V. R. R.
360
Henderson v. Australian Steam Navi-
Herschfeld v. Clarke
490
gation Co.
694
V. Dexel
288
u. Bank
709
Hersey v. Barton
1138
V. Barnewall
75
Hershey v. Keembortz
945
V. Broomhead
497
Hersom v. Henderson
1026
V. Cargill
205, 828, 858
Hertzogu. Hertzog
864
V. Hackney
80, 953, 713
Hervey v. Hervey
219, 221
V. Hayne
565
Hess V. Fox
902
V. Hays
910
V. Heebie
837
V. Henderson
788, 801
V. State
708
V. Hoke
1264
Hesseltine v. Seavey
860
V. Jones
570
Hetherington v. Kemp
1330
V. Lewis
1360, 1363
Hewitt V. Pigott
749, 1106
V. State
357
V. Prime
606
V. Thompson
1058
Hewlett V. Hewlett
1245
Hendrick v. Com.
30
Hewlew v. Cock
194, 733
Hendrickson v. Evans
1067
Hexter v. Knox
1142
r. Noreross
774, 784
Heyman v. Neale
75, 1016
Henfree v. Bromley
627
Heysham v. Forester
824
Henfrey v. Henfrey
892
Heyward, in re
600
Henisler v. Freedman
595
Heywood v. Charlestown
135
Henkel v. Pape
1128
u. Reed
569, 1164
Henkle v. Smith
674 a
V. Reid
834
Henley v. Hotaling
1031
Heyworth v. Knight
75
Henman v. Dickinson
■425
Hiatt V. Simpson
Hibbard v. Mills
951
V. Lester
1093
931
Henuing v. Ins. Co.
1017, 1019
V. Russell
515
Henry v. Bank
534
Hibblewhite v. M'Morine
633, 864
V. Bishop
723, 725, 726
Hibshman v. DuUebau
793
V. Goldney
772
Hickerson v. Blanton
980
!). Lee
524
V. Mexico
986, 988
V. Leigh
154, 639
Hickey a. Hayter
1121
V. Martin
679
V. Hinsdale
131, 1124
V, Warehouse Co.
259
Hickman v. Alpaugh
314
Henshaw v. Bissell
1150
V. Boffman
1319
v. Davis
683
V. Jones
807
". Pleasance
816
Hicks, in re
891
0. Robins
961
Hicks V. Cleveland
875
Hensley v. Tarpey
318
V. Cram
226, 253
VOL. 11. 46
705
TABLE OF CASES.
Hicks u. Forrest 1168
V. Marshall 1254
V. Sallitt 993
Hidden v. Jordan 908
Hide V. Thornborough 1346
Hier v. Grant 466, 468
Higbee v. Dresser 576
Higdon V. Heard 533
Higgins V. Began 739
V. Carlton 451, 555, 1008
V. Cheesraan 875
V. Dewey 436, 1294
V. Reed 90, 136
V. R. R. 1154
V. Senior 937
Higgs V. North Assam Tea Co. 1152
V. "Wilson 1077
High, appellant 83
Higham v. Ridgeway 226, 229, 239
Highberger v. Stiffler 600
Highfield v. Pealie 828 a
Highland Turnpike Co. v. McKean 661,
662
Highsmith v. State 643
Hightower v. Maull 948
Hildebrand v. Fogle 945
Hildebrant v. Crawford 469
Hildeburn v. Curran 559
Hildreth v. O'Brien 927, 930
V. Shepard 485
HiU U.Bacon 317
V. Beebe 1362
V. Bennett 1157
V. Burke 980
V. Bush 1017
V. Cooley 622
V. Crompton 21
V. Dolt 377, 382
V. Draper 1041
V. Ely 1059
"• Epley 1150
V. Feltou 1006
V. Fitzpatrick 142
V. Gaw 1019, 1058
V. Gayle 1362
V. Grisgby 314
V. Ins. Co. 507
V. Johnston 873
V. Kling 833
V. Lafayette Insurance Co. 507
V. Loomis 1031, 1032
"• Lord 1347, 1353
V. Manchester 1045
V. McDowell 947, gei a
V. Mendenhall 795, 796, 797, 808
V. Meyers 909
V. Morse 770
V. Myers 856
V. New River Co. 1295
V. Nichols 357
V. North 257
V. Parker 136, 823
V. Peyton 920
706
Hill V. R. R.
436,1183
V. Roderick 237
1161, 1199 a
V. Scott
616, 684
V. Simpson
632
V. State
522, 542, 544
V. Sturgeon
444
V. White
nil
V. Wilson
467
Hillary v. WaUer
1353
Hillebrant v. Burton
1353
Hilton V. Geraud
864
0. Homans
1044, 1048
Hilts V. Colvin
90
Hilyard v. Harrison
749, 753
Himmelmann v. Hoadley
336
Hinchliff v. Hinman
690
Hinchman v. Whetstone
77
Hinckley v. Beckwith
339
V. Davis
1212
Hind V. Rice
290
Hinde v. Vattier
289
V. Whitehouse
868
Hinde's Lessee v. Longworth 137
Hindmarsh v. Charlton 886, 889
Hinds V. Barton 43, 360
V. Ingham 1144
Hine v. Hine 996
V. Pomeroy 55S
Hiner v. People 640
Hines v. State 420
Hinnemann v. Rosenback 937, 940
Hinnersley v. Orpe 1052
Hinsdale v. Lamed 837
Hinton v. Brown 109
V. Locke 961, 961 a
Hipes V. Cochrane 339
Hissrick v. McPherson 678
Hitch V. Wells 888
Hitchcock V. Aicken 802
V. Kiely 1049
Hitchin v. Campbell 779, 782, 787
Hitchins v. Eardley 203, 216
Hite V. State 937, 939
Hitt U.Allen 1196
V. Rush 404, 409
Hix V. Whittemore 402, 1253
Hizer v. State 336
Hoad V. Grace 1044
Hoadley v. Hadley 466
Hoag V. Lamont 1175
Hoagland v. Hoagland 1026
V. Schnorr 980
Hoar V. Goulding 942
Hoard v. Peck 452
Hoare v. Graham 1058, 1059
V. Silverlock 282, 335
Hobart v. Hobart 466
Hobberfield v. Browning 138
Hobbs V. Duff 774
V. Henning 814
V. Knight 896
Hobby V. Dane 445
Hobson V. Doe 828
TABLE OF CASES.
Haile v. Palmer
115, 639, 643
Holden v. Parker
1044
Hobson V. Ewan
980, 982
Holder v. Coates
1343
V. Harper
178
V. Nunnelly
1035
V. Ogden
838
Holderness v. Baker
1184
Hoby V. Roebuck
863
Holdernesse v. Rankin
487
Hockensmith v. Slusher
998
Holdfast V. Downing
729
Hocker v. Jamison
177
Holding V. Pigott
958
Hockin v. Cooke
335, 958, 965
Holdsworth v. Dimsdale
1090
Hodgdon v. Shannon
1168, 1332
Holgate, in re
888
V. Wight
114,1362
Holiday v. Atkinson
1060
Hodge V. Higgs
240
o. Harvey
60
V. Thompson
1167
Holland v. Hatch
781
Hodges V. Bennett
414
V. Reeves
90, 531, 1106
V. Hodges
1157
Hollenback v. Fleming
725, 739
V. Howard
908
Hollenbeck v. Rowley
676, 677
V. Man. Co.
883
V. Shutts
1058
V. Strong
942
V. Stanberry
988
Hodgkins v. Bond
873, 881
Holler V. Ffirth
397
Hodgkinson v. Kelly
1243
V. Weiner
1090, 1127
Hodgson V. Clarke
999
HoUey v. Acre
770
V. Davies 958,
965, 967, 968
V. Burgess
47
V. Hutchinson
882, 1145
Holliday v. Butt
683
V. Jeffries
466
V. Marshal
864, 865-
V. Johnson
863, 909
Hollingham v. Head
21, 1287
V. Le Bret
875
Hollingshead v. McKenzie
912
Hodnett ;;. Smith
723
HoUingswonh v. Martin
1365
Hoe V. Nathrop
114
HoUinshead v. Allen
1216
Hoes V. Van Alstyne
302
Hollisu. Goldfinch
46
Hoevelcr v. Mugele
1045, 1047
V. Hayes
1035
Hoffman ». Armstrong
1343
HoUister v. Reznor
1163 o
V. Bank
1060, 1061
Hollocher v. HoUocher
1044
V. Bell
1332
HoUoway v. Galloway
887
V. Coster
397, 567, 980
V. Rakes
1156
u. Felt
909
Holly V. Burgess
50
V. Ins. Co.
1246
Holman v. Austin
484
V. MiUer
1060
V. Bank
726
Hogan V. Cregan
552
V. Burrow 335
336, 337, 338
V. Reynolds
1064
V. King
300, 302
V. Sherman
1207
Holmes v. All
690
Hoge V. Eisher
1253
V. Baddeley
583
Hoge's Estate
1009
V. Budd
1194
Hogel V. Lindell
1031
V. Clifton
1155
Hogg V. Orgill
1196
V. Crossett
939
Hoghton V. Hoghtou
1090
V. Grant
1032
Hogins V. Plympton
940, 942
V. Holmes
83, 996
Hogsett K. Ellis
1101
V. Hoskins
875
Holtt V. Monlton 62
515, 562, 707
V. Johnson
1274, 1277
Holbard v. Stevens
61
V. Mackrell
873
Holbrook v. Armstrong
883
V. Marden
219, 682
V. Burt
358
V. Mitchell
626, 870
V. Dow
532
V. Stateler
563
V. Holbrook
1046, 1165
V. Trout
861
V. Mix
481, 500
Holmes's Appeal
1044
V. New Jersey Zinc Co. 740
Holt V. Miers
155,831
!>. Nichol
116, 740
V. Moore
1058
u. Tirrell
861
V. Squire
1184
V. Trustees
147
Holton V. Meighen
1031
Holcomb V. Davis
290
Holtzclaw V. Blackerby
1017
V. Holcomb
402, 403
Holyoke v. Harkins
810
Holcombe v. Hewson
1287
Homer v. Brown
781
V. State
141
V. Cilley
733
Holcroft V. Halbert
640
V. Taunton
975
Holden v. Liverpool
361
V. WaUis
714, 727
707
TABLE OF CASES.
Homersham v. Wolverhampton Ey.
Home V. Williams
180, 514
Co.
694
V. Young
464
Homes v. Smith
251
Horner ». Speed
1077
Honore «. Hatchings
1032, 1035
V. Stillwell
956
Honstine v. O'Donnell
551
Horrigan v. Wright
1167
Hood V. Barrington
66
Horseman v. Todhunter
147
V. Beauohamp
208, 219
Horsey v. Graham
863
V. Fuller
115
Horsfall v. Hodges
901
V. Hood
785, 988, 1168
Horsley v. Eush
702
V. Mathers
942
Horton v. Bott
490
V. Maxwell
446
V. Critchfield
982
V. Reeve
1190
V. Green
439, 441
Hook V. Bixby
466
V. Smith
1163
V. Craighead
1019
Horvell v. Barden
1011
V. George
551
Horwood V. GrilBth
937, 993
V. Stovall
441, 510
Hosack V. Rogers
422
Hooker v. Johnson
492, 678, 683
Hosford V. Foote
1129
Hooks V. .Smith
61
V. Nichols
288
Hooper v. Moore
300, 565
Hosmer v. Warner
464
V. E. E.
961
Hotchkiss V. Barnes
939, 940, 942
V. Taylor
684
V. Hunt
837
Hoops V. Atkins
697
V. Ins. Co.
570
Hoover v. Gehr
682, 688
V. Lothrop
32
V. Mitchell
781, 782
V. Mosher
1064
V. Eeilly
1029
Hotson V. Browne
931
Hope V. Balen
1015, 1018
Hough V. City Fire Ins. Co.
1172
V. Evans
1077
a. Cook
21, 446,447
V. Everhart
1148
V. Doyle
1170, 1180
V. Lawrence
1144
V. Ins. Co.
1172
V. Smith
1044, 1048
Houghtaling v. Ball
314
V. State
1070
V. Kilderhouse
47
Hopewell v. De Pinna
1274
Houghton, ex parte
1035
Hopkins v. Chandler
837
Houghton V. Carpenter
1015
V. Chittenden
619
u. Gilbart
664, 1320
V. Grimes
1002
e. Jones
529, 740
V. Holt
996
V. Koenig
74
V. Kent
1301
Houlditch V. M. of Donegal
801, 803,
V. Lacouture
950
806
V. Megquire
707
Houliston V. Smyth 225,
239, 824, 978
0. Millard
120
Hourtienne v. Schnoor
1052
V. Olin
533
Housatonic Bank v. Laffin
123
V. Page
1360
House V. Fort
439
V. Eichardson
265
V. House
393
V. E. R.
436
V. Wiles
775, 821
V. Smith
1103, 1108
Houser v. Com.
541
Hopkinton v. Springfield
1360
Houstman v. Thornton
1283
Hopkirk v. Page
1140
Houston V. McCluney
1165
Hopper V. Com
491, 499
V. Musgrove
781
V. Hopper
758
Houston, in re
812, 817
Hopps V. People
Hopwood V. Hopwood
49
Hovey v. Chase
452, 931
974
V. Grant
21,33
Horam v. Humphreys
52
V. MagiU
1062
Horan v. Weiler
366, 1245, 1314
V. Newton
921
Horn V. Bentinck
604
V. Sawyer
436
V. Brooks 237,
931,1019, 1156
V. Sebring
1331
V. Cole
1143
How V. Hall
78, 159, 160
V. Fuller
1061
Howard v. Copley
588
V. Keteltas
973, 1031, 1032
V. Copp
V. Davis
1199 o
V. Lockhart
807
139
V. Mackenzie
516,522
V. Ducane
331
V. Eoss
1156
V. Howard
1022
Home V. Bodwell
1061
V, Hudson
1155
V. E. E.
361
V. Ins. Co.
551, 961, 998
708
TABLE OF CASES.
Howard v. Newcom
1103, 1108
Huckman v. Fomie
356
V. Sexton
32
Huckvale, in re
888
V. Shepherd
967
Hudgius V. State
508
V. Sheward
21, U73
Hudson V. Crow
393
V. Smith-
1091
V. Daily
100
V. Snelling
726, 727
w. Ede
961
Howard's Appeal
290
V. JMessick
1302
Howard Co., in re
286
V. Parker
886, 888
Howe V. Howe
269, 1157, 1252
V. Poindexter
1277
V. Merrick
471
V. Eevett
633, 634
V. Merrill
1059
Hudspeth v. Allen
1190
V. Palmer
875
Hueston v. Hueston
1211
V. Plainfield
268
Huet V, Le Mesurier
653
V. Snow
1177
Huff V. Bennett
180, 514, 553
V. Walker
1014, 1050
HufiFer v. Allen
779, 789
Howe Machine Co. v. Clark 1183
Huffman v. Cartwright
1124
Howel V. Com.
541, 574
V. Hummer
936
Howell V. Ashmore
566, 754
Hugett V. E. B.
360
V. Gordon
760
Huggins V. Ward
367
V. Howell
47, 175, 267, 1157
Hughes V. Christy
63
V. Ins. Co.
346
V. Colman
1052, 1053
V. Lock
393
V. Davis
■ 904, 1033
u. Buggies
638
V. Debnam
115
V. Sebring
1017
V. Garnons
584
Howerton v. Lattimer
466
V. Gordon
961
Howes V. Barker
1050
V. HoUiday
702
Howland v. Conway
556
V. Hughes
1360
V. Crocker
175
V. Jones
785, 988
u. Lenox
380
y. Morris
910
Hewlett V. Holland
987
V. Eogers
712
V. Howlett
937
V. B. E.
1316
V. Tarte
783, 791
V. Sandal
944
Howley b. Whipple 76
,1128, 1323, 1329
V. Wilkinson
555, 557
Howser v. Com.
65, 393, 567, 602
Hughs V. Cornelius
814
Hoy V. Couch
841
Huguley v. Holstein
515
V. Gronoble
864
Hugus V. Strickler
697
V. Morris
587, 588
V. Walker
1157, 1168
Hoyle V. CornwaUis
332, 335
Hnidekoper v. Cotton
601
Hojt w. Adee
403, 1254
Hulbert v. Carver
961
V. Ex. Bank
744
Hull V. Adams
920
V. Exch. Co.
746, 748
V. Augustine
315
V. McNeil
288
V. Blake
781
Hubbard v. Briggs
555
V. Horner
1353
V. Chapin
466
V. B. B.
360
V. Elmer
1179, 1180
Huls V. Bnntin
982
V. Lees
201, 219
Hulverson v. Hutchinson
796, 797
V, Kussell
152
Humble v. Hunter
951
Hubbart v. Phillips
764, 797
V. Mitchell
864
HubbeU v. Alden
1165
Hume V. Burton
1254
V. HubbeU
469
V. Scott
562
V. Beam
1017
V. Taylor
Humfrey v. Dale
1017
Hnbbell's case
463
969
Hubbey v, Vanhorne
718
Hummel v. Brown
223
Hubble V. Osbora
1165
Humphrey v. Burnside
338
Huber v. Burke
1023'
V. Humphrey
48, 256
Hubert v. Moreau
873
V. Beed
364
V. Treherne
873
Humphreys v. Parker
515
Habley v. Vanhorne
719
V. Spear
518, 521
Hubnall v. Watt
976
V. Switzer
357
Hncliberger v. Ins. Co.
357, 358, 366
V. Wilson
697, 699
Huckins v. Ins. Co.
501
Humphries v. Brogdeu
1344, 1346
V. People's Co.
518
Hungate v. Gascoigne
210
Huckman v. Pirnie
357
Hungerford's Appeal
709
988
TABLE OF CASES.
Hunneraan v. Fire District
980
Hushrook v. Strawser
1082
Hunscom v. Hunscom
395
Huse V. McQuade
920
Hunsueker v. ITarmer
1165
Huss V. Morris
1019
1021
Hunt V. Brown
869
Hussey v. Elrod
1217
V. Carr
1019
V. Eoquemore
141
V. Coe
549, 910
Hussman v. Wilke
923
V. Daniels
839
Huston V. Schindler
714, 719
V. Gray
629
Hutcheon v. Mannington
320
V. Hecht
876
Hutchings v. Castle
1165
V. Hort
992
V. Corgan
177
V. Ins. Co.
1172
V. Heywood
1035
V. Johnson
310, 312
1). Van Bokelen
1315
V. Lowell
453
Hutching v. Denziloe
414
V. Lowell Gas Light Co
448
V. Gerrish
101
V. Lyle
99
V. Hamilton
357
V. Massey
1312
V. Hebbard
1015,
1026
t'. MeCalla
542
V. Kimmell
83
t. McClellan
910
V. Scott 131,
623, 627
,753,
V. People
268
1124
V. Roberts
908
V. Tatham
951
V. Eousmanier 920
,936
1029
Hutchinson v. Bank
1140
V. Rylance
61
V. Boggs
366
V. Silk
1017
V. Bowker
940
V. Stewart
1273
V. Moody
979
V. Straw
1217
V. Patrick
101
V. Tulk
1004
V. Sandt
1254
V. Utter
1332
V. Tindall
1033
Hunter v. Atkyns
1248
V. Wheeler
545. 566
V. BUyeu
1019
Hutchison v. Rust
740
V. Capron
584
Huth V. Ins. Co.
314
V. Tulcher
289
Huthwaite v. Phaiie
795
V. Goudy
1017
Hutson V. Fumas
1020
V. Graham
1058
Hutt V. Morrell
1117
V. Hopkins
1038
Huttemier v. Albro
1346
V. Jones
838,
1167
Hutton, in re
1277
V. Kittredge
466
Hutton V. Arnett
942
V. Neck
324
V. Bullock
950
V. Page
861
. V. Padgett
869
V. Randall
879
V. Rossiter
1121,
1145
V. Stewart
785, 787
V. Warren
959
V. Walters 932,
1066,
1243
Huyett u. R. R.
4C
,361
V. Wetsell
877
Buzzard v. Trego
135
V. Wilson
1060
Hyam v. Edwards
82, 114, 658
Huntingdon Peerage
219
Hyatt V. Adams
268
Huntingford v. Massey
33
Hyde v. Cooper
910
Huntington v. Bank
836
V. Heath
357
V. Charlotte
795
u. Hyde
300, 302, 305
V. Havens
1039,
1040
V. Middlesex
1160
V. Rumnill
828
V. Palmer
261
Huntington E. R. v. Decker 48, 56
1180
V. Stone
1133
Huntley v. Donovan
639
Hyer v. Little
1021,
1050
Huntly V. Comstock
657
Hyland v. Sherman
1177
Huntress v. Tiney
833
Hylton V. Brown
118
Huntsman v. Nichols
21
Hyuds V. Hays
1180
Hurd V. Moring
589
Hyuson w. Texada
487
V. Swan
377
Hurlburt v. Wheeler
1157
Hurlbatt v. Butenop
114
I.
Hurn V. Soper
1048
Hurst V. Beach
973
lasigi V. Brown
742
V. Jones
201
Ibbott V. Bell
898
V. McNiel
1349
1358
Iddings V. Iddings
1019
Hurt V. McCartney
690
Ide V. Ingraham
1196
710
TABLE OF CASES.
Ide V. Stanton
870
Iglehait V. Jernegan
524
Ibmsen v. Ormsby
790
Ijams I). Hoffman
248
1 1. Cent. E. K. v. Cobb
1119
V. Welch
1063
V. "Wells
360
Illinois Co. V. Wolf
1065
Illinois Ins. Co. v. Marseilles Co? 690
111. Land Co. v. Bonner 84, 90, 139,
1039
Illinois R. R. v. Cowles 357, 364
v. Sutton 268, 269
u. Taylor 423
Ilott V. Genge 888
Imlay v. Rogers 601
Imperial Gas Co. v. Clarke 746
Imrie v. Castrique 801, 814
Inches v. Leonard 1360
Indiana v. Helmer 808
Indianap. R. R. v. Tyng 1170
Indianapolis v. HafFer 513
Indianapolis R. R. v. Anthony 260, 263,
562
V. Case 339
V. Jewell 147
V. Stephens 339
Inge V. Hance 1058
IngersoU v. Traebody 1026
Ingilby v. Shafto 754
Ingle 0. CoUard 1212
Ingledew v. R. R. 453
Inglehart v. State 510
Ingles V. Patterson 904
Inglis V. R. R. 69, 77
V. Spence 1153
Ingraham v. Grigg 1031
V. Hart 300, 302, 303
V. Hough 1350
V. Hutchinson 1349
Ingram v. Flasket 7, 345, 346
V. State 337
Inman v. Foster 47
u. Jenkins 64, 490
V. Mead 821, 823
V. Stamp 863
Innell v. Newman 1207
Innis V. Campbell 1275
V. The Senator 512
In re Allen 886
Allen's Patent 1320 a
Allnutt 890
Almosnino 890, 1003
Amiss 889
Arnit's Trusts 1272
Ash 890
Ashmore 888
Bailey . 889
Bakewell's Patent 1320 a
Beck & Jackson 824
Bentham's Trusts 1276, 1277
Blair 889
Bosanquet 888
In re Brewis 890
Brewster 887
Bridget Feltham 999
Brooks 803
Brown & Croydon Can. Co. 800
Bryce 696, 889
Burton & The Saddlers' Co. 746
Byrd 888
Cameron's Coalbrook, &c. R. R.
Co. 150
Christian 889
Clarke 889
Cockayne 894, 898
Contract Co. 377
Cope 889
Cunningham 891
Dallow 890
Dare Valley Ry. Co. 599
Davies 888
Dickins 890
Diez 123, 302, 303
Dinmore 888
Douce 889
Duffee 630
Duffy 1008
Duggins 889
Durham 890
Dyer 616
Edwards 890
Fenwick 892
Fraser 891
Frith 889
General Estates Co. 1152
Graham 892
Greves 890
Hall 223, 1274, 1277
Harker 900
Harris 896, 898
Hayward 600
Heilman 1250
Hicks 891
Holgate 888
Houatoun 812, 817
Howard Co. 286
Huckvale 888
Hutton 1277
Jones 888
Kellick 886
King 1151
Leach 888
Lewis 889
Luke 890
Middleton 898
Mullen 888
North Assam Tea Co. 1152
North of England Jt. St. Bk.
Co. 1151
Olding 888
Parr 898
Pearsons §88
Peck 1276
Pembroke 890
Phene's Trusts 1274
711
TABLE OF CASES.
In re Plunkett's Estate 999
Rees 888, 1314
Eiyer Steamer Co. 1090
Simmonds 886
Smith 626
Sperling 889
Stewart 890
Summers 888
Sunderland 890
Thomas 226, 229, 888
Trevanion 889
Truro 890
Watkins 890
Webb 886
Willerford 890
Woodward 896
Inskoe v. Proctor 1019
Inslee v. Pratt 685
Insurance Co. v, Bathurst 814
V. Lyman 1014
V. Mahone 1172, 1175,
1180
V. Mosely 261, 268
V. Sailer 944
V. Sharp 939
V. Troop 937
V. Weide 134, 140, 516,
519, 680
V. Wilkinson 1172
M.Woodruff 151,1177
V. Wright ■ 958, 961
In the Goods of Bryce 696
Iowa Palls R. E. u. Woodbury Co. 1050
Irby «. Brigham 1192
Ireland v. Johnson 877
V. Liyingston 1241, 1245, 1249
V. Powell 186, 187
Irish V. Dean 920
Iron Co. V. Pales 1353
Iron Mountain Bank v. Murdock 29, 39,
532
Irvine v. Bull 864, 1023
V. Stone 902
Irving V. Greenwood 52
Irwin V. Powler 1349, 1358
V. Geruon 357
V. Ivers 920
V. Irwin 909
V. Jordan 678
V. Shoemaker 932, 1021
V. Shumaker 466
Irwing V. McLean 288
Isaac V. Gompertz 212
Isabella v. Peoot 60, 304
Isack V. Clarke 733
Isbell M, R. R. 641, 645, 1355
Iselin V. Peck 513
Isenhour v. State 469
Isherwood v. Oldknow 1242
Isler V. Dewey 466, 569
V. Harrison 1085
V. Kennedy 1062
Isquierdo v. Forbes 801
712
Israel v. Brooks
Iverson v. Loberg
Ives V. Hamlin
V. Hazard
V. Niles
Ivey V. State
Ivory V. Michael
47, 53
982
515
870
682
412
632
J. o. J.
467
Jaccard v. Anderson
177
Jack V. Kierman
104
V. Martin
1112
V. McKee
864
V. Morrison
881
V. Woods
151, 179
Jackman v. Ringland
1035
Jackson v. Allen
157
V. Andrews 1021, 1022, 1028
V. Bard 423, 1163 a
V. Barron 393
V. Beling 958
V. Betts 139
V. Blanshan 733, 734
V. Boneham 208, 223
V. Brooks 704
V. Browner 201
V. Bumham 862
V. Butter 859
V. Cooley 201, 205, 210
V. Cris 1101, 1168
V. Davis 732, 733
„. Etz 223, 1277, 570
V. Evans 686
V. Poster 953, 1030
V. French 582
V. Frier 142, 147
V. Frost 668
V. Gridley 396, 399
V. Halstead 736
V. Hart 953, 1030
V. Hill 1155
V. Hoffman 758
V. Humphrey 538, 600
V. Irvin 1284
V. Jackson 139, 177, 431, 478,
833
V. Jones 742
V. King 1252
V. Kingsbury 736
V. Kingsley 156
V. Kniffen 895, 1010
V. Lamson 177
V. Lewis 562
V. Livingston 153
V. Lowe 872
V. Lucett 66
V. Luquere 194
V. Mann 383
V. McCall 1347, 1348
V. McChesney 1043
TABLE OF CASES.
Jackson v. McVey 412
K.Miller 120,1157,1160
V. Morter 931, 1148
V. Murray 719, 1352
V. Myers 1167
V. Neely 142
V. New MUford 1308
V. Oglander 872
V. People 83, 653
V. Perkins 383
V. Perrine 942
V. Pesked 1305
V. Phillips 712
V. Pierce 910
V. Eoberts 981
V. Rose 397
V. E. B. 726
V. Seagar 378, 382, 495
V. Shearman 154
V. Shelden 729
V. Shoonmaker 741, 1052
V. Sill 1008
V. Smith 1287
V. State 491
V. Steamburg 1050
V. Stetson 53
V. Stewart 764, 985
V. Summerville 1205
V. Thomason 549
V. Titus 873
V. Van Dusen 708, 1252
V. Vandyke 668
V. Varick 529
V. Vedder 819
V. Wilkinson 690
V. Winne 83
V. Wood 785, 1360
V. Woolsey 151, 154
Jacksonville R. E. v. Caldwell 404, 409
Jacob V. Hart 624
V. Hungate 356
V. Lee 154
U.Lindsay 77,1106
V. U. S. 1315
Jacobs V. Cunningham 699
V. Davis 347
V. Duke 43
V. Gilliam 653
V. Hesler 427
V. Layburn 393, 492
U.Putnam 1126
V. Eemsen 1165
V. Richards 367
V. E. E. 909
V. Shorey 1127, 1204
V. Spofford 697
V. Whitcomb 1101
Jacquin v. Davidson 469
Jaeger u. Kelley 1183
Jaggers v. Binnings 1199
James v. Barnes 490
V. Bion 1081
V. Bligh 1066
James v. Cohen
V. Gordon
V. Heward
V. Patten
V. Eichmond
V. Smith
V. Spaulding
V. State
V. Stookey
u. Wade
V. Wharton
V. Williams
Jameson v. Conway
V. Stein
Jamison v. Jamison
V. Ludlow
V. Pomeroy
Janes v. Buzzard
Janeway v. Skerritt
Jarmaine v. Hooper
Jarrett v. Leonard
Jarvis v. Dutcher
V. Palmer
Jaspers v. Lane
900
702
1302
873
678
795
685
12
1100
1323
238, 240
869
1094
882
1052
931
1062
758, 819
1184
273
1164
863
1014
572
Jay V. Carthage 114, 366, 1153, 1315
V. East Livermore 107, 120, 136, 824
V. Livermore 120, 826
Jayne v. Price 1332
Jeakes v. White 863
Jeans v. Wheedou 90, 180
Jefferds v. People 1077
Jeffers v. EadcliflF 810
V. E. E. 360
Jefferson Co. v. Ferguson 1352
Jefferson Ins. Co. v. Cotheal 507
Jefferson E. E. v. Riley 567
Jefferson v. Slagle 879
Jefford V. Einggold 155
Jeffrey v. Walton 926
Jeffries V. Gt. West. Rail. Co. 1336
Jenkin v. King 1266
Jenkins v. Blizard 675
V. Bushby 755
V. Cooper 937
V. Einstein 1050
V. Gaisford 889
V. Long 983
w. Parkhill 107,1319
V. Eeynolds 869
V. Eobertson 783
V. Sharpff 942
Jenkinson v. State 576
Jenks V. Fritz 945, 1028
Jenne v. Joslyu 1204
Jenner v. E. E. 576
Jennings v. Blocker 262
V. Briseadine 942, 956
u. Bronghton 1017
V. Ins. Co. 1172
V. Thomas 106I
Jenny Lind Co. v. Bower 961
Jepherson v. Hunt 879
Jermain v. Laugdon 837
713
TABLE OF CASES.
Jesse V. State 574
Jessell V. Bath 925
Jessup V. Cook 177
Jesus College v. Gibbs 150
Jeter v. Tucker 1045
■ Jewell V. Center 298
V. Christie 800
V. Commonwealth 980
V. Jewell 84, 201, 216, 259
V. Porche 1318
Jewett, in re 389
Jewett u. Banning 1136,1138
V. Davis 357
V. Draper 718
V. Plack 1363
V. Warren 875
Jewison v. Dyson 44
Jexw. Board 1180,1199
Joannes v. Bennett 1265
V. Mudge 1026, 1027
Job V. Tebbetts 740
Jochamsen v. Suffolk Bank 810, 1278
John V. State 571
Johnson v. Appleby 1015
V. Ballew 509, 956
V. Barnes 1347, 1348
V. Boyles 1045
V. Brock 842, 852
V. Buck 868
V. Chambers 288
V. Clark 137
V. Cocks 123
V. Consol. Silver Co. 746, 748,
750
V. Crane 1061
V. Crutcher 1019
V. Daverne 76, 589, 708, 1328
V. Dodgson 873, 876
V. Durant 599, 800
V. Farvvell 65
V. Eowler 740
V. Gorman 357
!/. Hanson 910
V. Hathorn 1015
V. Pleald 464
V. Hicks 992
V. Hocker 1052
V. Holdsworth 1207
V. Howard 205
u. Howe 100, 101
V. Hubbell 910
V. Ins. Co. 961
V. Johnson 606, 1036
V. Jones 670
V. Kellogg 901
V. Kendall 391, 392
V. Kershaw 80
V. Lawson 202, 216
w. Longmiro 769
V. Lovelace 1049
V. Ludlow 814
V. Lyford 90, 996, 1008
V. Marlboro 629
714
Johnson v. Marsh
V. Mason
V. Mathews
V. McGehee
V. McKee
V. Pendergrass
V. People
V. Pierce
V. Pollock
V. Powell
V. Price
V. Quarles
V. Rannels
V, Eeid
V. Roberts
V. Robertson
V. R. R.
V. Shaw
V. Sherwin
V. Smith
1196
725
141
621
268
741, 1052
562
921
622, 920
142
678
1037, 1166
99
1308
1058
331, 766
361
194, 703
265
1061
V. State 63, 268, 415, 439, 441,
451, 491, 509, 512, 567, 569,
719, 1194
o. Taylor 1047, 1049
V. Trinity Church 1138, 1175
V. Watson 883
V. Whidden 415
Johnson's Appeal 993
Johnson's case 397
Johnson's Will 139
Johnston v. Allen 84, 1151
V. Cowan 864 .
V. Ewing 740
V. Glancy 909, 910
V. Haines 1053
V. Hudleston 335
V. Johnston's Executors 1214
V. Jones et al. 481, 668
V. McRary 930, 1015
V. Stone 833, 833 a
V. Sumner 1257
V. University 120
V. Warden 1192
V. Worthy 906, 1017
Johnstone v. Beattie .817
V. Scott 837
V. Usborne 961
Joint V. Mortyn 869
JolifFe V. Collins 936
JoUey V. Foltz 988
V. Taylor 77, 159
Jolly V. Young 961 o
Jones V. Barkley 904
V. Berryhill 490, 629
V. Boston 1318
V. Brewer 179
V, Brown 1112
V. Brownfield 259
V. Buffum 1044, 1060, 1061
V. Carrington 239
V. Childs 515
V. Cooprider 727
V. De Kay 684
TABLE OF CASES.
Jones V. Doe
175
Jones V. Wood
177
V. Edwards
154
Jones, in re
888
V. Fales
129, 294, 298
Jones's Succession
120, 657
V. Finch
718
Jordan v. Cooper
945, 1023, 1028
V. Flint
866, 867
V. Dobson
366
V. Foaxll
1090
V. Faircloth
784
V. Frost
1039
V. Hubbard
1217
... Gale
319, 322
V. Money
487
V. Galway Commis.
694
V. Osgood
661
0. Goodrich
66, 589
V. Pollock
619, 1103
V. Jeffries
1058
V. Sawkins
1024
V. Jones 178, 179,
201, 464, 620,
V. Stewart
740, 1183
625, 684, 701, 1045, 1134, 1158,
Jorden v. Money
1145
1273
Jory V. Orchard
162
V. Harris
395
Joseph V. Bigelow
920
V. Hartley
900
Joslyn V. Capron
1064
V. Hatchett
252
Jourdain v. Palmer
490
V. Hays
286, 287
Jourden v. Boyce
629
V. Horner
1060, 1061
V. Meier
811
V. Howard
240, 781
Joiirnu V. Bourdieu
961 a
V. Howell
61
Jouzan V. Toulmiu
147; 1017
u. Huggins
708
Joy V. Hopkins
512
V. Hurlbut
1200
V. State
555
V. Ins. Co.
950
Joyce V. Ins. Co.
507
V. Lake
886
Judd V. Brentwood
570, 1101
V. Laney
288, 412
V. Fargo
1295
V. Littledale
951, 1061
Judge V. Cox
1295
, V. Long
683
V. Green
537
V. Lovell
727
Judson, ex parte
382, 383
V. Maffet
308
Judson V. Lake
775, 811
V. McDougal
908
Judy V. Williams
992
V. McLuskey
487
Julke V. Adam
404
V. Morehead
151
Jumpertz v. People
712
V. Morse
1167
Justice V. Elstob
61, 154
V. Muisbach
1319
V. Justice
64, 988, 989
V. Murphy
139, 892
V. Lang
873
V. Newman
997
Juzan V. Toulmin
147, 1017
u. Norris
1207
V. Overstreet
335
V. Palmer
300, 869
K.
V. Parker
1273
V. Perkins
988
Kain v. Old
931
V. Petei-man
864, 910
Kaler v. Ins. Co.
559
V. Pratt
490
Kalmes v. Gerrish
723
V. Pugh
579
Kane v. Herrington
1035
v. Randall
637, 824
V. Ins. Co.
1246
V. Richardson
779
V. Johnston
368
V. Eicketts
1258
Kans. P. R. R. Co. v.
Butts 360
V. Robertson
1165
Kansas Stockyard Co
V. Couch 1290
V. R. E. 360, 361, 1294, 1295
Karr v. Jackson
98
V. Sasser
1045
V. Parks
760
V. Simpson
431
V. Stivers
678, 681, 682
V, Stevens
47,53
Kauff V. Messner
788
V. Stroud
523
KaufFelt v. Leber
781
u. Tapling
1242
Kaul V. Lawrence
129
V. Tarleton
82, 220, 677
Kay V. Crook
882
V. Turnpike Co.
1068, 1069
V. Fredrigal
556
V. Wagner
965
V, McCleary
031
V. Walker
338, 690
V. Vienne
84
V. Waller
196, 1274
Kealy v. Tenant
875
V. Ward
180
Kean v. McLaughlin
32
V. White
441, 776
u. Newell
175
V. Williams
45
Keane v, Smallbone
623
715
TABLE OF CASES.
Kearney v. Deane 817
V. Denn 760
V. Farrell 269, 511, 512
V. King 335, 339
V. Sascer 1019, 1028
Keater v. Hock 782
Keaton v. McGwier 432
Keator v. Dimmick 427
V. People 563, 565
Keech v. Cowles 466
V. Rinehart 223, 1277
Keefer v. Zimmerman 726
Keegan v. Carpenter 175
Keeler, ex parte 324
Keeler v. Tatnell 863
Keen v. Coleman 1052
Keenau v. Boylan 108
V. Hayden 41
Keene v. Deardon 1353
V. Meade 77
Keener v. Kaufiman 1156
V. State 56, 510
Keerans v. Brown 551
Keichline v. KeieUine 741, 1053
Keigwin v, Keigwin 888
Keisselbrack v. Livingston 1019, 1021
Keith V. Horner 863
V. Ins. Co. 1019
V. Kibbe 683, 685
V. Lothrop 446, 453, 707, 714, 721
V. Quinney 980 a
V. Wilson 491
Kell V. Charmer 972, 1002, 1006
Kellar v. Eichardson 482
V. Savage 159
Keller v. Killion 826
V. E. E. 436
Kelleran v. Brown 837
Kelley v. Campbell 262
V. Dresser 980
V. Drew 427, 430
0. Green 1319
V. Mize 797
V. Paul 690
V. Proctor 422, 565
u. Eoss 118
V. Stanbery 863
V. Story 338
Kellick, in re 886
Kellington v. Trinity College 833
Kellogg V. French 675
V. Malin 466
V. Nelson 545
V. Norris 151
V. Smith 945
Kelly V. Cunningham 480
V. Garner 1302
V. Jackson 371
V. Keatinge 888
V. Powlett 993
V. Eoberts 1014
V. Taylor 1026
V. Terrell 883
716
Kelly V. Webster 863, 909, 910
Kelsall V. Marshall 805
Kelsea v. Fletcher 517, 518
Kelsey u. Hammer 136,142
V. Hibbs 880
V. Ins. Co. 544
V. Murphy 1205
Kelson v. Kelson 1048
Kelton V. Hill 466, 468, 476, 477, 678
Kemble v. Farren 1192
Kemmerer v. Edelman 501
Kempsey v. McGinniss 452
Kempsou v. Boyle 75
Kempton v. Cross 66, 67, 321
Kendal v. Talbot 7.82
Kendall v. Brownson 357
V. Field 614, 684
V. Grey 606
V. Kingston 69
V. Lawrence 1213
V. Mann 1035
V. May 402, 403, 447
V. Stone 523
V. White 833
Kenderson v. Henry 1292
Kendrick v. Kendrick 830
V. State 177
Kennard v. Burton 668
Kennedy v. Cassillis 801
V. Crandell 518
V. Doyle 239, 653, 654
V. Gifford 32
V. Green 632
V. Hilliard 497
V. Kennedy 920, 931, 936, 1035,
1038, 1042
V. Nash 626
V. Panama Co. 1069
V. People 436, 441
V. Plank Eoad 1014
V. Eeynolds 63
V. Wachsmuth 980
Kenney v. Pub. Ad. 1362
Keuneys v. Proctor 868
Kent V. Agard 1032
V. Garvin 518, 521
V. Harcourt 147, 1156
r. Kent 883
V. Lasley 1032
V. Lowen 11 63 o
V. Manchester 1019
V. Eicards 985
t). Walton 1163a
V. White 357
V. Whitney 1290
Kenton County Court v. Bank Lick
Co. 1249
Kenworthy v. Schofield 868, 869, 872
Kenyon v. Smith 1250
V. Stewart 66
Kenzie v. Penrose 1045
Keough V. McNitt 1026
Kepp V. Wiggett 1040
TABLE OF CASES.
Kermott v. Ayer 302, 3U, 315, 335, 446,
1291
Kern v. Ins. Co. 445, 507
K?rnin v. Hill 712
Kerns v. Swope 94
Kerr v. Condy 803
V. Freeman 356
V. Hays 986
V. Kerr 796, 803, 808
V. Love 678, 685
V. Russell 1052
a. Shaw 869
V. Shedden 639
Kershaw v. Ogden 875
V. Wright 440, 445
Kessel v. Albetis 283, 287
Kessler v. McConachy 682
Ketchingman v. State 555, 562
Ketchum v. Ex. Co. 357, 363
V. Johnson 730
Ketland v. Bissett 55
Kettlewell v. Barstow 754
V. Dyson 490
Key V. Dent 820, 823
V. Jones 466
V. Shaw 254
!). Vaughn 118
Keyes v. Keyes 83
Keys V. Baldwin 429
V. "Williams 487
Keyser v. Coe 338, 339
Khajah Hidayut Oollah v. Kai Jan
Khanum 211
Kibbe v. Bancroft 682
V. Ids. Co. 1170
Kidd V. Alexander 741
V. Carson 905
V. Cromwell 61
V. Manley 118
Kidder v. Barr 910
Kidgill V. Moor 1305
Kidney v. Cockburn 208, 210
Kidson v. Dilworth 1059, 1061
Kidstonw. Ins. Co. 961 a
Kieth V. Kerr 1015
Kilbonrne v. Jennings 444
Kilburn v. Bennett 1097, 1284, 1285
V. Mullen 562
V. MuUer 562
Kilgore v. Buckley 31 1
V. Dempsey 1250
Kilgonr v. Finlyson 1 196
Killebrew v. Murphy 338
Kilmore v. Howlett 867
Kilpatrick v. Com. 324
V. Frost 1315
Kilvert's Trusts, in re 999
Kimball v. Baxter 463
a. Bellows 838, 1116
<.. Bradford 921, 942
V. Brawner 939, 942
V. Lamphrey 1318
V. Lamson 622
Kimball v. Morrell
151, 1050
Kimble v. Carothers
466
V. McBride
471
Kimbro v. Hamilton
971
Kimmel v. Kimmel
565
Kimmell v. Geeting
1200, 1205
Kimpton v. R. E.
389
Kincade v. Bradshaw
1246
Kincaid v. Howe
1273
Kinchelow v. State
417
Kindy's Appeal
983
Klne V. Balfe
882, 909
V. Beaumont
162
King V. Bellord
1272
V. Brown
864
■>. Castlemain
567
V. Chase
760,764,823
V. Cole
1091
V. Coulter
1360
V. Dale
118
V. Donahue
706, 715
V. Doolittle
294
V. Fink
1050
V. Fitch
510
V. Fowler
1279
V. Hoare
771, 772, 773
V. Holt
638
V. Hopper
983
V. Kelly
1321
V. Kent
339
V. King
433, 536, 732
V. Little
113, 198, 732
V. Lowry
1.54
V. Maddux
1133
V. Norman
770, 823
V. Eandlett
147
V. Richards
1149
V. Rookwood
567
V. Eackman
565, 977, 1014
V. Smith
723, 725
V. Waring
49
V. Wicks
555
V. Wilkins
1162
V. Zimmerman
149
King, in re
1151
King of Two Sicilies v. Wilcox 536
Kingham v. Robins 1114
Kinghorn v. The Montreal Tele-
graph Co. 76
Kingman v. Cowles 98, 105
V. Kelsie 1060
V. Tirrell . 619
Kingsbury v. Buchanan 837
V. Moses 77, 510
Kingsland v. Chittenden 670
Kingaley v. Balcome 879
V. Holbrook 1031
Kingston v. Lesley 653
V. Leslie 1349, 1351, 1352
V. Tappen 574
Kingston, Duchess, case of 593, 606, 758,
765, 776
Kingswood v. Bethlehem 142, 725
717
TABLE OF CASES.
Kingwood v. Bethlehem 727
Kinlock v. Savage 870, 872
Kinna v. Smith 1165
Kinne v. Kinue 451
Kinnersley v. Orpe 741, 764
Kinney u. Doe 645
V. Flynn 701, 725, 937, 1273
V. Kiernau 931
Kinsey v. Grimes 1090
Kinsler v. Holmes 1360
Kinsman w. Parkhurst 1149
Kintz V. McNeal 795
Kip V. Brigham 823
Kirby «. Harrison 1017
V. Hickson 339
V. Watt 1133
Kirk V. Eddowes 974, 1007
V. Hartman 920, 936, 1014, 1143
Kirkham v. Marter 880
Kirklan v. Brown 789
Kirkland v. Smith 100
Kirkpatrick, in re 895
Kirkpatrick v. Muirhead 1060
Kirkstall i). E. R. 1177
Kirschner v. State 397, 538
Kirtland v. Wanzer 123
Kistler's Appeal 1037
Kitchen v. R. R. ' 531
Kitchens v. Kitchens 138
Kittering v. Parker 414
Kittredge v. Elliott 41, 1295
V. Russell 514
Klare v. State 336
Klein v. Dinkgrave 1 044
V. Keyes 1044
Kline's Appeal 864, 1214, 1215
Kline v. Baker 300, 302, 303
V. Gundrum .683
Kling V. Sejour 301
Klinik v. Price 1032
Knapp V. Abell 95, 103, 302, 824
u. Hyde 931
V. Smith 502
V. White 1258
Knerr v. Hoffman 419
Knight V. Adamson 1352
V. Barber 864
V. Clements 629
V. Cooley 1127
V. Cl-ockford 873
V. Bunlop 875
i>. Egerton 1115
V. House 565, 1136
V. Knight 73, 993, 1044
V. Mann 875
V. Martin 154, 736
V. Smythe 1149
V. Wall 66
V. Waterford 231
V. Worsted Co. 940
Knights V. Wilfen 1066
V. Willen 1149
Knill V. Williams 624, 626
718
Knoblauch v. Kronschnabcl 1066
Knode v. Williamson 49, 563, 564
Knowles v. Gas Co. 796, 808
V. Scribner 1246
Knowlton v. Clark 269
V. Moseley 551, 872, 1119,
1124
Knox V. Silloway 96
V. Thompson 490
V. Waldoborough 781
Knox Co. V. Aspinwall 1147
Koch V. Howell 683
Koecker v. Koecker 384
Koehring v. MuemminghoflF 920
Koenig v. Bauer 575
V. Katz 466
Kohn V. Marsh 1184
Koons V. Hartman 785
V. Miller 965
Koop V. Handy 931
Kost V. Bender 175
Koster v. Innes 1283
V. Reed 1283
Kostenbaden v. Peters 1019
Kostenberger u. Spotts 1241, 1242
Kotwitz V. Wright 682
Kowing V. Manly 718
Kramph v. Hatz 760
Kreiter v. Bomberger 484, 945
KrekelCr v. Hitter 765, 797, 798
Kreuchi v. Dehler 779
Krider v. Lafferty 923
Krise'ti. Neason 140, 147, 156
Kuehling v. Lebermann 803, 818
Kufh V. Weston 1323
Kuhlman v. Medlinka 493
V. Orser 837
Kuntzman v. Weaver 410
Kurtz V. Cummings 864
Kuypers v. Church 837
Kyburg v. Perkins 639, 640
Kyle V. Calmes 353
V. Frost 422
V. State 776
La Beau v. People 346, 528
Lacey v. Davis 135
Lackawanna Iron Co. v. Fales 1353
Lackington v. Atherton 1155
Lacon v. Higgins 308
V. Mertins 909, 910
Lacoste v. Robert 1184
Ladd V. Blunt 96, 107
V. Pleasants 1021
Ladford v. Grettou gso a
Lady Dartmouth ti. Roberts 108
Lady Ivy and Lady Neal's case 664
La Farge v. Eicker 920, 921, 1022
Lafayette E. R. v. Ehman 1180
Lafone v. Falkland Islands Co. . 582, 594
TABLE OF OASES.
Laing v. Barclay
576, 585
Langdon, ex parte
382
V. K a,ine
725
Langdon v. Doud
1142
V. Reed
120
V. Kutts
162
Lainson v. Tremere
1039, 1040
V. Young
314
Lake v. Clark
715
Lange, ex parte
756
V. Meacham
1019
Langfort v. Tyler
877
V. Milliken
1296
Langhotr v. E. R.
361
Laker v. Hordern
998
Langhorn w. Allnutt 1170
1174, 1180
Lake Shore B. E. v. Miller
361
Langley v. Oxford
1184
Lake Water Co. v. Cowles
326
Langlin v. State
491
Lamar v. McNamee
859, 860
Langlois v. Crawford
949
V. Turner
1041, 1085
Langmead v. Maple
785
V. Winter
1163 i
Langton v. Higgins
875
Lamb v. Barnard
1173
Langtry v. State
84
V. Crossland
1350
Lanning v. Case
175
V, Irwin
702
V. Dolph
740
V. Klaus
961
V. Pawson
990
V. Orton
755
Lansdown v. Lansdown
1029
V. R- E.
363, 364
Lansing v. Chamberlain
726
Lambe v. Orton
1276
V. Coleman
1175
Lambert v. Norris
859
0. Eussell
105, 718
V. Smith
1199
Lanter v. McEwen
1246
Lamothe v. Lippott
980
Lantry v. Lantry
1033
Lamoure u. Caryl 447, 450, 510
Lapham v. Insurance Co.
1070
Lampen v, Kedgewin
782
V. Kelley
240
Lamptou v. Haggard
335
Lapsley v. Grierson 1274,
1275, 1277,
Lanauze v. Palmer
162
1297
Lancaster v. Ins. Co. 810,
1274, 1277
Laramore v. Minish
484
Lancaster Co. Bk. u. Moore
175, 1254
Larco v. Cassaneuava
106
Lancey v. Ins. Co.
949
Largau v. E. E.
513
Land v. Patteson
337
Large v. Penn
945
Land Co. v. Bonner
1298
V. Van Doren
147
Landell v. Hotchkiss
39
Larimer v. Kelley
883
Lauder v. Castro
951, 1061
Lark v. Liusteed
1166
Landers v. Bolton
726, 1052
Larkin v. Avery
854
Landis v. Turner
678, 682
Larkins v. Ehodes
903
Lando v. Arno
988
Larry «. Sherburne
1138
Landry v. Martin
1315
Larsen v. Burke
1021
Lands v. Crocker
725
Larson v. Wyman
879
Lane's case
324, 1310
La Eue v. Gilkysou
931
Lane v. Bommelman
114
Larura v. Wilmer
763
V. Brainerd
177,661
Lasala v. Holbrooke
1346
V. Bryant
267,551
Lasselle v. Brown
1216
V. Burghart
880
Lassence v. Tierney
882
V. Clark
823
Latch V. Wedlake
1194
V. Cole
377
Latham v. Edgerton
795
V. Cook
758
V. Latham
1031
V. Crombie
359, 361
V. Staples
487
V. Farmer
1362
Lathrop v. Donaldson
1301
V. Ironmonger
1257
V. Lawson
123
V. Latimer 932, 1017
1019, 1023
Latimer v. Sayre
466
V. R. R.
1175, 1182
Latterett v. Cook
289
V. Shaekford
910
Lau V. Mumma
732
V. Sharpe 640, 642, 931
Landman v. Ingram
1044, 1048
o. Thompson
23
Laughlin v. McDevitt
1009
V. Wilcox
444
Laughran v. Kelly
414
Lanergan v. People
1138
Laurent v. Vaughan
449
Lanfear v. Mestier
317
Layer v. Fielder
1145
Lang V. Gale
924
Lavery v. Turley
909
V. Henry
901
Law V. Fairfield
551
V. Johnson
1058
V. Scott
510, 604
V. Phillips
990
Lawes v. Reed
524
V. Waters
1217
Lawhorn v. Carter 466, 682
719
1226, 1363
TABLE OF CASES.
1093
518
532, 649
446
147
579
154
811
73
760
743
765, 780
796, 808
1295
1119
177
961
1336
'819
1059
779
952, 1061
642
873
732
1312
123, 316
Lawless u..Queale
Lawrence v. Baker
V. Barker
V. Boston
V. Burris
V. Campbell
V. Clark
V. Englesby
u. Grout.
V. Haynes
V. Hooker
V. Hunt
V. Jarvis
V. Jenkins
V. Lawrence
V. Maule
V. Maxwell
V. Minturn
V. Pond
V. Stonington Bank
V. Vernon
V. Walmesley
Lawrence Co. v. Dunkle
Lawrenson v. Butler
Lawry v. Williams
Laws V. Eand
Lawson v. Pinckney
Lawton v. Buckingham 1045
W.Chase 446,448,482,715
Lawyer v. Loomis 482
V. Smith 900
Laxley v. Jackson 899
Lay bourn v. Crisp 187, 828 a, 832
Laycock v. Davidson 920
Layet v. Gano 967
Laythoarp v. Bryant 870, 873
Lazare v. Jacques 935
Lazarus v. Lewis 739
t/. Skinner 1061'
Lazenby D. Rawson 1121
Lazier v. Westcott 110, 622, 802
Lea V. Henderson 533, 536
V. Hopkins 131, 1124
V. Robeson 840
Leach v. Powler 1168
V. People 541
Leach in re 888
Leadbitter v. Parrar 951, 1061
Leader v. Barry 653
Leaf V, Butt 155
Leake v. M. of Wcstmeath 824, 828
Leakey v. Gunter 953
Leame v. Bray 331
Leaptrot v. Robertson 469
Learmouth, ex parte 180
Learned v. Corley 1274
Leathe v. Ballard 1018
Leatherbury v, Bennett 73, 77
Leathers v. Cooley 826
Leavenworth v. Brockway 302, 303
Leavitt v. Bangor 423
t). Cutler 325
V. Palmer 1019
720
Leavitt v. Simes
162
Le Barron v. Redman
492
Lecat V. Tavel
869
Lechmere v. Fletcher
772, 1114
Leckey v. B loser
510
Leconfield v. Lonsdale
1349, 1350
Lecray v. Wiggins
901
Ledbetter v. Morris
152
Lee V, Angus
377
V. Clarke
823
V. Detroit
48
V. Fleraingsburg
674
V. Gansell
397, 831
V. GriiBn
874
V. Hester
265
V. Johnstone
1303
V. Kilburn
252, 253, 254
V. Lamprey
1205
„. Lee " ' 72, 823, 828, 1009, 1017
V. Munroe 1173
V. Pain 924, 1000, 1008
V. Polk Co. Copper Co. 1319
V. Read 754
V. E. R. 1064, 1207
V. Stiles 820, 828
V. Tinges 499
V. Welsh 391
V. Wheeler 685
Leech v. Bates 888
Leeds v. Bender 781
V. Cook 52, 1265
V. Dunn 1129
V. Passman 1022
Leeds & Thrisk Rail. Co. v. Fearn-
ley 1272
Lees V. Martin 261
V. Whitcomb 869
Leeson v. Holt 675
Leetch v. Ins. Co. 493
Leete v. Ins. Co. 1245
Lefevre v. Lefevre 518, 1026
V. Lloyd 951, 1061
LefFerts v. Brampton 742
Legare «. Ashe 892
Legatt V. Tollervey 776
Legs V. Drake 528
V. Legg 980
Legge V. Edmonds 766, 1210, 1298
Leggett V. Buckhalter 1021
V. Glover 476
Legh V. Hewitt 963
Legrand v. College 292
Lehigh R. R. v. Hall 84
Leicester v. Walter 53
Leidman v. Schultz 961
Leifchild's case 1044, 1048
Leigh V. Lightfoot 123
V. Savidge 992
Leightou V. Leighton 827, 833
V. Manson 678
Leitensdorfer v. Delphy 1019
Leland v. Cameron 142, 239
V. Marsh 792
TABLE OF CASES.
Leland v. Wilkinson 292
Lemage v. Goodban 892
Lemaster v. Burckhart 920
Lemere v. Elliott 1337
Lemington v. Blodgett 120
Lemon V.Bacon 115
Lemons v. State 568, 569
Lench v. Lench ' 1035
Lenhart v. Allen 1192, 1200
Lennard v. Vischer 920
Lenox v. Ins Co. 963
Leo ti. Getty 114
Leonard v. Allen 56, 511
V. Bates 931
V. Davis 875
V. Dunton 1064
V. Kingsley 555
V. Leonard 403, 601, 988, 1346
V. Peeples 302
1/. Simpson 783, 834, 1113
V. Vredenburgh 869, 879
V. Whitney 785, 793
V. Wynn 500
Leonori v. Bishop 569
Lepine v. Bean 998
Leport V. Todd 1284
Lepperson v. Dallas 910
Leppoc V. Bank 927, 935, 1067
Lerned v. Johns 937, 950'
u. Wannemacher 901, 904
Lesler v. Rogers 626
Lesley v. Nones 1363
Leslie v. De la Torre 929
Lessee of Cluggage v. Swan 239
Lester v. Bowman 879
V. Kinne 909
V. Pittsford 510
K. E. E. 40
V. Sutton 1103
Letcher v. Cosby 910
V. Kennedy 1302
V. Norton 177
Lett w. Morris 1112
Letts V. Brooks 1274
Leven v. Smith 875
Lever v. Lever 1140
Levering v. Langley 393
Leveringe v. Dayton 826
Levers v. "Van Buskirk 785, 835, 1363
Levy V. Barley 120
U.Hale 1155
V. Merrill 869
V. Mitchell 1180
V. Pope 590
V. State 293
Lewes's Trusts, re 1276
Lewin V. Dille 152, 620
Lewis, in re 541
Lewis V. Ames 1278
V. Baird 1253
V. Brehme 1061
V. Brewster 1019, 1044, 1046
V. Brown 515
Lewis V. Davies
1332
V. Davison
1249
V. Freeman
515
V. Harris
338, 1092
V. Hartley
V. Harvey
V. Havens
157, 346
1061
76
V. Hodgdon
V. Ins. Co.
412
410, 510
V. Jones
1069, 1170
V. Knox
823
V. Kramer
626
V. Laroway
V. Levy
733
367
VOL. II.
46
u. Lew'is 417,758,782,784,789
V. Long 1165
V. Marshall 653, 963, 965
V. Mason 1009
V. Morse 393
V. Norton 240
V. Parker 356
V. Pennington 588
V. Eogers 482, 955
u. E. R. 1241
V. Sapio 707
V. Smith 367
V. State 510, 551, 569
V. Sumner 1184
V. SutlifF 98
V. Webber 1064
V. White 1035
V. Woodworth 1199 a
Lewis's case 541, 889
Lewiston Bk. v. Leonard 123
Ley V. Ballard 730
V. Barlow 742
Leyland v. Tancred . 1115
Libby v. Cowan 690
Liebman v. Pooley 90, 133
Life Ins. Cases 454
Life Ins. Co. u. Ins. Co. 1267
V. Mut. Ins. Co. 153
Liggett's Appeal 1216
Liker. Howe 1151
Liles V. State 269
Lillie V. Lillie 138
Lilly V. Waggoner 1252
LiUywhite u. Devereux 875
Lime Bank v. Fowler 514
V. Hewett 180
Lime Eock Bk. v. Hewett 510, 1175
V. Macomber 694
Limerick v. Limerick 77
Linblom t). Eamsey 1175
Lincoln v. Barre 444, 549
V. Battelle 319
V. Claflin 1194, 1204, 1205
V. Lincoln , 433, 466
V. R. E. Co. ' 510
V. Schenectady & Saratoga
E. E. Co. 510
V. Taunton Copper Co. 446,
1287
721
TABLE OF CASES.
Lincoln v. Tower 795
V. Wright 1163
Lindauer v. Ins. Co. 507
Lindenberger v. Beal 1323
Lindgreen v. Lindgreen 1004
Lindley v. Horton 975
V. Lacy ' 927, 1026, 1027
Lindsay v. Atty. Gen. 336, 338
V. Williams 324
Lindsay v. Danville 779
«. Lindsey 1050
Lindsley v. Thompson 787
Lindus v. Bradwell 1061
Line v. Tayler 346
Lingenfelter v. Eitchey 1032, 1033
Lingo V. State 429
Linn v. Barkey 1019
V. Buckingham 690
V. Naglee 678
V. Ross 689
V. Sigsbee 436
Linnell v. Gunn 795
V. Satherland 678
Linning v. Crawford 151
Linscott V. Fernald 942
V. Mclntire 864, 883
V. Trask 1334
Linsley v. Bushwell 1077
V. Linsley 550
V. Lovely 1015
Linthicum v. Remington 678
Linton v. Hurley 441
Lion V. Burtis 758
Lipscomb v. Postell 136
Lipscome v. Holmes 1153
Lisk V. Sherman 864
Lister v. Boker 533, 11 63 a
V. Smith 927
Litchfield Co. v Bennett 226
Litchfield v. Falconer 1058
V. Merritt 427
V. Taunton Co. 440
Little V. Chauvin 726, 727
V. Downing 136, 732, 827
V. Herndon 625, 629, 631
V. Marsh 1264
V. Palister 210
V. Wingiield 1348, 1357
Littlefield v. Brooks 1285
V. Getchell 1167
V. Rice 423
Littler v. Holland 901, 1018
Littleton v. Christy 122
V. Richardson 763
Livermore v. Aldrich 973, 1042
V. Herschel 779, 780
Liverpool- Borough Bk. v. Eccles 873
Liverpool Wharf u. Prescott 942
Livesley w. Lasabette 1215
Livett V. Wilson 1349, 1350
Livingston v. Arnoux 226, 238, 239, 246,
977
V. Bishop 773
722
Livingston v. Cox
180, 509
V. Keech
481
V. Kiersted
402, 403
V. Livingston
1352
V. Rogers
129
V. R. R.
1127
V. White
90
Livingston's case
441
Llewellyan v. Jersey
1014, 1050
Llewellyn v. Badddey
594
V. Jersey
1014
V. Ld. Jersey
872
Lloyd V. Barr
800
V. Brewster
1017
V. Deakin
1277
V. Farrell 263, 936, 1019, 1026
V. Gregory 859
V. Lloyd 684
V. McClure 619, 1126
V. Mostyn 586
V. Roberts 888
V. Spillet 1035
V. Willan 1191
Lobb V. Stanley 873, 901
Lobdell V. Lobdell 468, 909, 1171, 1173,
1180
Lochnane v. Emmerson 622, 626
Lock V. Norborne 769
V. Winston 828
Locke V. Huling 315
V. Palmer 1031
V. Rowell 944
V. W. G. 371
V. Whiting 1028
Lockett V, Caiy 756
V. Child 1031
V. Mims 514
V. Necklin 926
Lockhardt v. Jelly 252, 253
Lockhart v. Cameron 1019
V. Luker 430
V. Woods 640
Lockwood V. Avery 1062
V. Barnes 883
V. Canfield 1044
V. Crawford 311
V. Mills 429
V. Smith 1199
w. Thome 1133,1140
V. U. S. 1026
Lockyer v. Lockyer 47
Lodge V. Barnett 944, 945
V. Phipher 719
V. Prichard 678, 1132, 1133
B. Turman 1031
Logan V. Barr 857
V. Bond 1014, 1050
V. Dils 699
V. McGinnis 451
V. State 290
Logansport Gas Co. v. Knowles 808
Logston V. State 398
Logue V. Link 1217
TABLE OF CASES.
Lohman v. People 541
Lombard v. Oliver 508, 955
Lombardo v. Case 958
Lomerson v. Hoffman 151
Lond. & Brigh. Ry. Co. v. Fair-
clough 1353
Londonderry v. Andover 208
V. Chester 83
Lonergan v. Ass. Co. 380
V. Whitehead 683
Longu. Champion 1106
V. Colton 191
V. Conklin 683
V. Crawford 123
V. Drew 156
V. Duncan 909
V. Hartwell 868
V. Kingdon 619
V. Lamkin 566, 568
V. Morrison 562
V. Pool 1249
V. E. R. 920, 921, 936, 1014,
1070
V. Spencer 698, 699
V. Steiger 501
V. Weaver 980
Longabaugh v. B. E. 43
Longenecker v. Hyde 175, 1212
Longfellow v. Williams 872, 1127
Longhurst w. Ins. Co. 1019
Longley v. Vose 642
Looker v. Davis 473, 474
Loomis V. Green 366
V. Jackson 945
V. Loorais 1196
V. Mowry 1301
V. Pulver 789
V. Wadhams 1077, 1092
Looper v. Bell 268
V. State 644, 824
Lopez V. Andrews 1348, 1353
V. Deacon 756
Ld. Amherst v. Ld. Sommers 813
Ld. Bridgewater's case 664
Ld. Carnarvon v. Villebois 187
Ld. Cloncurry's case 1220
Ld. Delamere v. The Queen 1305
Ld. Dunraven v. Llewellyn 187, 188
Ld. EUenborough's case 1220
Ld. Glengall v. Barnard 974
Ld. Trimlestown v. ICemmis 196
Lord Nelson v. Lord Bridport 306,
308
Lord Somerville's case 1097
Lord V. Bigelow 636
V. Colvin 259, 525, 530
V. Commiss. for City of Syd-
ney 1341
V. Lord 824
V. Moore 678, 683
V. Staples 310
Lorenzana w. Camarillo 1120
Loring v. Aborn 358
Loring v. Mansfield
789
u. Steineman
811, 1274
V. Whittemore
153
V. Woodward
992
Losee v. Buchanan
359
V. Mathews
571
Loss V. Obry
1020,1030
Lothian v. Henderson
814
Lothrop V. Blake
100, 107, 642
V. Poster
1051
Lott V. Macon
163
Louhz V. Hafner
1295
Louden v. Blythe
262, 1052, 1102
V. Walpole
701
Loudon V. Lynn
662
Lougee v. Washburn
1097
Louis V. Easton
473
Louisiana v. Richonx
295
Louisville v. Hyatt
1310
Lounsberry v. Snyder
859, 860
Louw V. Davis
788
Love V. Buchanan
992
V. Gibson
763
V. Pay ton
249
V. Wall
1059
Lovejoy v. Murray
773
Lovelady v. Davis
811
Lovell V. Arnold
811,821
Low's case
601
Low V. Argrove
626
V. Burrows
100
V. Mitchell
533, 539
V, Payne
620
V. Peters
137
Lowe V. Qarpenter
1349, 1351
V. Joliffe
512
V. Lehman
961 a
V. Lowe
501
V. Massey
486
V. Peers
1045
V. E. R.
446, 1175
V. Williamson
451
Lowell V. Flint
153
V. Winchester
1180
Lower v. Winters
565, 568
Lowney v. Perham
537
Lowry v. Adams
937
V. Cady
90
V. Harris
515, 702
V. McMillan
797, 985
V. McMurtry
780
V. Mehaffy
864
V. Moss
227, 1163 6
V. Pinson
1026
Lowther v. Lowther
366
Loyd V. Freshfield
525, 593
Lubbock V. Tribe
149
Lubyi). R. R. 175,261,1173,1174
Lucas V. Barrett 1175
V. Bristow 961, 969
V. Brooks 21, 139, 430, 431, 478,
1265
V. De la Cour 1194, 1200
723
TABLE OF CASES.-
Lucas V. Flinn
V. Ladew
V. State
V. Trumbull
Luce V. Doane
561
314
422
1165
683
V. Ins. Co. 436, 507, 958, 961
Luckhart v. Cooper 1320
V. Ogden 357
Luckie v. Bashby 1064, 1065
Lucy t). Mouflet 1154
Luders v. Anstey 1145
Ludington v. Ford 1028
Ludlow V. Johnston 63
V. Van Rensselaer 300
Luellen v. Hare 632
Lufburrow v. Henderson 1046
Luke V. Calhoun Co. 676
Luke, in re 890
Lull V. Cass 931
Lumsden v. Cross 640
Lunay v. Vantyne 430
Lund w. Bank 1149
V. Lund 1031
V. Tyngsborough 259, 266, 512
Lunday v. Thomas 130, 550, 838
Lungsford v. Smith 141
Luning v. State 438, 665
Lunnis v. Row 492
Lunsfoi'd V. Lead Co. 693
Lurton v. Gilliam 638, 671
Luscombe v. Steer 755
Lush V. Druse 674
V. McDaniel 268, 441
Luttrell V. Eeynell 179
Lyell V. Lapeer Co. 339
Lyford v. Farrar 397
Lygon V. Strutt 197
Lyle V. Elwood 84
Lyles V. Lyles 570
Lyman v. Ins. Co. 436, 507
V. Little 1019
u. Philadelphia 565, 569
Lynch u. Clerke 114
V. Lively 640
V. Lynch 857, 858, 859, 860
V. McHugo I 681
V. Petrie 682, 683
V. Swanton 784
Lynde v. Judd 130
V. McGregor 651, 1103, 1165
Lyndsay v. E. R. 359
Lyne v. Bank 830
Lynes v. State 1206
Lyon V. Boiling 107
V. Guild 1323, 1360
V. Lyman 708, 714, 718, 719
V. Lyon 411, 1077, 1220
V. Miller 921, 929
V. Reed 857, 858, 860, 1143
t). Wilkes ' 456
Lyons v. De Pass 331
Lytle V. Bass 1026
V. Colts 1355
724
M.
M. & A. Glue Co. v. Upton
Maberley v. Robbins
Maberly v. Sheppard
Macartney v. Graham
Macaulay v. Shackell
Macdonald v. Longbottom
Macdougal v. Young
Macferson v. Thoytes
Macgregor v. KeUy
V. Laird
Machir v. McDowell
Macintosh v. Haydon
V. R. R.
Mackay v. Com. Bk.
Mackentile v. Savoy
Mackenzie v. Cox
V. Dunlop
V. Yeo
Mackin v. Grinslow
335
296
875
149
754
940, 946
90
717
1326
583
1050
626
753, 755
1170
945
363
961 a
588
712
Mackintosh v. Marshall 675, 1170, 1243
Macon R. R. v. Davis 176
V. McConnell 360
Macrory v. Scott 872, 880
MacuUum v. Turton 533, 536
Madden v. Burris 690
V. Farmer 420
V. Tucker 943
Maddock w. Marshall 1171
Maddox v. Fisher 331
0. Graham , 746
Maden u. Catanach 387, 395, 396
Madigan v. De Graff 522
V. Walsh 863
Madison v. Nuttall 1156
Madison R. R.k. Norwich Sav. Co. 1170
Madrid Bank v. Rayley 490
Maffit V. Rynd 1031, 1032
Magee v. Atkinson 951
u. Doe 514
V. Mark 1246
V. Osborn 707
V. Scott 1286, 1334, 1336
V. State 506
Mageehau v. Adams 1021
Magehan v. Thompson 566
Magennis v. MacCulIough 861
Magie v. Osborn 708
Magill V. KaufSman 1180
Magnay v. Burt 390
V. Knight 62
Magness v. Walker 431
Magoon v. Warfield 829
Magoun v. Walker 123
Maguire v. Middlesex R. Co. 40
V. Sayward 117
Maha v. Ins. Co. 1019
Mahaive Bank v. Douglass 626
Mahan v. U. S. 869, 878
Mahana v. Blunt 909
Mahaska v. Ingalls 1212
TABLE OF CASES.
Maher v. Chicago 262
V. Ins. Co. 1172
Mahon v. U. S. 869, 878
Mahone «. Williams 1167
Mahoney v. Ashton 510, 831
u. Ins. Co. 606
Mahony v. Hunter 366
Mahoocl u." Mahood 1267
Mahurin v. Bickford 99
Maigley v. Hauer 1048
Mailhouse v. Inloes 781
Mailler v. Propeller Co. 29
Main, in re 1274
Main v. Melbom 910
Maine v. Harper 520
Maine State Co. v. Longley 663, 694
Maingay v. Gahan 816
Maitland v. Bank 570
Major V. Hansen 623
Makin v. Birkey 685
Makler v. McClelland 1021
Malaun, Adtn., v. Aramon 8C4
Malcolm v. Scott 1084
Malcomson v. O'Dea 194, 199, 1341
Malecek v. R. R. 1173, 1174, 1177, 1182
Males V. Lowenstein 800
Maley v. Shattuck 814
Malins v. Brown 910
Mallan v. May 924
Malleable Iron Works v. Phoenix Ins.
Co. 1172
Mallett V. Bateman 879
V. Brayne 857
Mallory vi Gillett 879
V. Leach 1019
V. Mallory 1031
V. Stodder 861
Malone v. Dougherty 481, 529, 1017,
1026, 1044
i;. L'Estrange 654
V. O'Connor 1337
V. R. R. 1243
V. Spilessy 530
Maloney v. Bartley 533
V. Horan 786
Malpas V. Clements 977
V. R. R. 1026
Maltman v. Williamson 357
Malton I). Nesbit 452
Mamlock u. White 1194
Manahan v. Noyes 932, 1017
Manby v. Curtis 1274
Manchester v. Manchester 422
V. Slason 693
Mandeville v. Stockett 825
Mangles u. Dixon 1147
Mangum v. Ball 958
Mangun v. Webster 321
Manhattan v. Lydig 1181, 1140
Mauigaalt v. Deas 769
Mankin v. Chandler 814
Manley v. Shaw 602
Mann v. Best 259
Mann v. Cook
1068
V. Lang
V. Pentz
1121
693
V. Smyser
Manning v. Cox
V. East. Cos.
Ry. Co.
. 920
1207
824
V. Hogau
Manny v. Dunlap
V. Harris
102
331
785
Manson v. Blair
141
Mansion v. Alston
837
Manufact. Bank v. Hazard
1143
Mapes V. Leal
115, 727
Maple V. Beach
758
Mapp V. Phillips
Marble v, Keyes
1183
788
V. Marble
863
V. McMinn
668
Marbury v. Madison
286,
604, 754
Marc V. Kupfer
958
Marcellus v. Countryman
March v. Com.
792
324
V. Garland
61, 123
u. Harrell
570
V. Ludlam
578
Marchmont Peerage
664
Marcly v. Shults 516, 518, 520, 522
Marcy v. Barnes 676, 720
V. Clark 761
V. Ins. Co. 263, 509
V. Stone 237, 1168
Mardis v. Shackleford 726
Mare v. Charles 1044
Margareson v. Saxton 1084
Marguerite v. Chouteau 311
Marianski ». Cairns 1105
Marine Insurance Co. v. Haviside 1313
V. Hodgson 832
V. Ruden 1070
Mariner v. Rodgers 942
Markel v. Evans 1302, 1354
Markham v. Gonastou 632
V. Jandon 961
V. O'Connor 763
Markley v. Swartzlander 529
Marks v. Colnaghi 239
V. Lahee 229, 231
V. Winter 141
Marksbury v. Taylor 1248
Marlatt v. Clary 823
Marley v. Noblett 883
Marlow v. Marlow 129, 130, 152
Marquand v. Hipper 869
Marquette B. R. v. Langton 21
Marqueze v. Caldwell 873
Marquis of Anglesey v. Ld. Hather-
ton 21, 44
Marquis o£ Berwick v. Oswald 1018
Marquis of Breadalbane M. of
Chandos 788
Marr v. Gilliam 66, 1353
V. Given 1353
Marrahan v. Noyes 906
725
TABLE OF CASES.
Marriage v. Lawrence
639, 661
Martin v. Loci
975
Marriot v. Marriot
811
V. Maguire
714, 715
Marriott v. Hampton
788, 789
V. Martin
300, 339, 566
Marsden v. Overbuiy
384
V. McLean
784
Marsh v. Case
682
V. NicoUs
801
V. Colnett
662, 732
V. Payne
302
V. Falker
366
V. Peters
1082
V. Gold
1090
V. Rex
797
ij. Hammond
551, 781
V. Righter
1063
V. Hand
93
V. Root
1192
V. Home
363
B. Williams
135, 377
V. Jones
180,
1109, 1295
Martindale v. Faulkner
1240
V. Keith
588
Martinean v. May
483
V. Loader
1272
Marvin v. Bennett
1017
V. Mitchell
1110
V. Wallace
875
V. Pier
787, 988
Marx V. Bell
541, 1101
V. Potter
431
V. People
481, 484
V. Rouse
875
Mask V. State
529, 1192
V, Whitmore
1249
Mason's case
318
Marshall's Appeal
996
Mason v. Bradley
626
Marshall v. Adams
180
V. Fuller
201
V. Baker 906,
1017,
1019, 1022
V. GralF
1058
V. Carhart
389
V. Lawrason
97
V. Cliffs
1184
V. Poulson
1094
V. Columbian F
Ins.
Co. 1172
u. Skurray
961a
u. Dean
1050
V. State
30
V. Ferguson
866
V. Tallman
147
V. Fisher
767
V. Wash
288
V. Gougler
626, 627
V. Wolff-
824
V. Green
867
V. Wythe
490
V. Gridley
944
Massaker v. Massaker
992
V. Haney
V. Ins. Co.
141
Massengill v. Boyles
942, 945
507
Massey v. Hackett
115
V. Lamb
1315
V. Johnson
863
V. Lynn
901, 902, 906
V. Lemon
758
V. Nav. Co.
1341
V. Walker
510
V. Norris
140
V. Westcott
64,65
V. Oakes
1256
Massonier v. Ins. Co.
63
V. R. R. 379
382,
872, 1127,
Massure v. Noble
507
1184
Master ti. Mille
624
Marshman v. Conklin
422
V. Miller
622, 626
Marston v. Deane
62
Masters v. Freeman
939
V. Dowuea
535
V. Masters
972
V. Roe
1010
V. PoUie
1343
V. Wilcox
1365
V. Varner
1168
Martel v. Somers
1162
Masterson v. Le Claire
325, 326
Martendale v. Follett
622, 626
Matchin v. Matchin
1220
Martin v. Algona
1077
Mather v. Butler
1017, 1019
V. Anderson
122
V, Scoles
910
V. Barnes
566
V. Trinity Ch.
1348
V. Kerens 932,
940,
1019, 1058
Mathers v. Buford
499
V. Clarke
935
Mathes ;;. Robinson
684
V. Cope
180
Matheson v. Ross
1124
V. Drumra
366
Mathews v. Bowman
64, 988
V. Duffy
881
V. Mathews
1005, 1077,1220
V. Francis
290
V. Poultney
482
V. Good
253, 518
Mathewson v. Ross
69S
V. Hardesty
47, 53
V. Sargeant
177
V. Hemming
490
Mathilde v. Levy
566
V. Hewitt
807
Matlock V. Livingston
1044
V. Ins. Co.
1284
Matoon v. Clapp
808
V. Jones
468, 474
Matson v. Booth
625
V. Judd
797, 982, 985
V. Wharam
880
726
TABLE OF OASES.
Matter of Taylor
83
Mayor v, Butler
599
Matteson v. Ellsworth
1363
V. Horner
1348
u. Noyes
76,
1128
V. Howard
1090
V. K. R.
268, 43
,440
V. Johnson
149
Matthew v. Osborne
766
V. Payne
883
Matthews v. Coalter
1134
V. Warren
234, 236
V. Dare
1088
Mayor of Beverly v. Att. Gen.
276
V. Duryee
760
Mayor of Doncaster v. Day
177
V. Houghton
1163 a
Mayor of Exeter v. Warren
229, 236
V, Huntley
47,
1246
Mayor of Ludlow v. Charlton
694
V. Poythress
415
Mays V. Deaver
1108
V. Thompson
944
Mayson u. Beasley 134,140,238,519
Matthis V. State
555
McAdams v. Beard
265
Mattice v. AUen
874, 877
V. Stilwell
177, 729
Mattingly v. Nye
758
McAfee v. Doremus
123
Mattison v. R. E.
441
McAleer v. McMurray
1226
Mattocks V. Lyman
518
1154
McAllister v. Butterfield
1008
Mattoon v. Young
466
McAndrew v. Eadway
123
Mattox V. Bays
1138
V. Tel. Co.
1180
Matts V. Hawkins
1340
McAndrews v, San tee
1120
Maubourquet v. Wyse
803
McArthur v. Carrie
1199 a
Mauch Chunk v, McGee
290
McAteer v. McMullen
555, 556
Maugham v. Hubbard
518,739
McAulay v. Earnhart
154
Maule V. BnckneU
879
McBane v. People
982
Maun V. Russell
674
McBarron v. Gilbert
1338
Maund v. McPhail
998
McBride v. McBride
541
Mannsell v. White
882,
1145
V. Watts
688
Mauri v. Heffernan
137
McBride's Appeal
466, 473
Mauro v. Piatt
1077
McBurney v. Wellman
908
Maury v. Talmadge
1174
McCabe v. Burns
1204
Maute V. Gross
931
McCaU V. Butterworth
377
Maverick v. Austin
1353
V. Gillespie
1002
Mawles V. Lowenstein
1191
McCance v. E. R.
1087, 1146
Mawson v. Hartsiak
562, 565, 568
McCandless v. Engle
1052
Maxham v. Place
576
McCanless v. Eeynolds
1157
Maxwell's case
908
McCann v. State
11
Maxwell v. Carlile
115
McCarrol v. Alexander
1035
o. Stewart
799
McCarron v. Cassidy
1031
V. Warner
514
McCartee v. Camel 1274,
1276, 1277
May V. Babcock
1070
McCarty v, Kltchenmann
1346
V. Brown
32
V. McCarty
1349, 1353
V. Gamble
1363
V. People
56
V. Hewitt
950
McCaskle v. Amarine 72, 706, 708
V. Jameson
980
McCaskill v. Elliott
41, 1295
V. Little
1217
McCaughey v. Smith
626
V. May
653,
1007
MeCauley v. Fulton
795
u. Pollard
690
V. Harvey
799
V. E. E.
1143
V. State
115
V. State
616
McCausland v. Fleming 185, 194, 248,
V. Taylor
1213
670
Mayberry v. Johnson
854
, 865
McCIanaghan v. Hines
1058
Mayer v. Mayer
433
McClay v. Hedge
507
Mayfield v. Wadsly
86'
,902
McClean v. Hertzog
159
Mayhew v. Gay Head
980
MoClenahan v. Humes
980
Mayhugh v. Rosenthal
1276
McClenkan v. McMillan
1136
Maynard v. Beardsley
53
McClellan v. Eeynolds
1061
V. Fellows
1061
McClelland v. Slingluflf
833
V. Ehode
1170
V. West
464, 529
Mayo V. Ah Loy
795
McClernan v. Hall
936
V. Johnson
120
McClintic v. Cory
1058
V. Mayo
535
McClintock v. Whittemore
571
V. State
714
McCloskey v. McCormick
936
Mayor v. Blamire
1077
McClowry v. Croghan
727
864
TABLE OF CASES.
McCIure v. Jeffrey 920
V. Pursell 353
McColIum V. Gushing 690
V. Herbert 107
V. Seward 445
McComb V. Gilkey 977
V. K. E. 60, 80, U73
V. "Wright 868, 873, 1279, 1353
McCombie v. Anton 177
McCombs w. R. R. 60,80,1173,1180
McConnell v. Brown 66
V. Ins. Co. 1246
McCord V. Johnson 723
McCorkle v. Binns 714
V. Doby 1200
McCormick v. Deaver 103
V. Elston 682
V. Evans 118
V. Fitzmorris 629
V. Hnse 920, 936
V. McMurtrie 248
V. Mulvill 517, 521
V. R. R. 522
V. Robb 175
V. Sullivant 795
McCorquodale v. Bell 742, 754, 1090
McCotter K. Hooker ' 1173
McCracken v. McCrary 156
V. West 572, 1290
McCrary v. Caskey 977
McCrea v. Purmort 873, 920, 1042,
1044
McCreary v. Casey 789
V. Hood 154
V. McCreary 1026
V. Turk 72
McCreedy v. R. R. 360
McCrnm v. Corby 416
McCulIoch w. Judd 1140
V. Norwood 315
McCulloogh V. Girard 1015
V. Wainright 946
McCuUy V. Clarke 359
McCummons v. R. R. 360
McCune v. McCune 1199
V. McMichael 1148
McCnrdy ?i. Breathitt 1019
McCutchen v. McCutchen 569
McCutcheon v. Pigue 402
McDade v. Meed 135
McDaniel v. Baca 551
V. State 549
V. Webster 518, 521
McDaniels v. Robinson 480
McDeed v. McDeed 302
McDermott v. Hoffinan 785, 836, 988,
1189, 1185
V. McCormick 696, 726, 727
V. Mitchell 1199
V. U. S. Ins. Co. 1019
McDill V. Dunn 923
V. Gunn 1038, 1044
McDonald v. Christie 446
728
McDonald v. Edmonds
120
V. McLeod
1031
V. Rainor
782
V. Savoy
47
V. Stewart
1026
McDonnell v. Murray
149
V. Pope
860
McDonough v. O'Niel
1264
V. Squire
1031
McDowell V. Cooper
945
V. Goldsmith
979, 1167
V. Oyer
864
0. Preston
418
V. Rissell
1166
McDuffie V. Magoon
1028
McElfresh v. Guard
887
McElmoyle v. Cohen
808
McEwen v. Bulkley
115
McFadden v. Kin^bury
77
V. Mnrdock
440
V. Wallace
1156
McFadyen v. Harrington
1194
McFarland v. Pico
123
V. R. R.
920, 942
McEarlane v. Cushman
781
McFarlin v. State
544
McFerren v. Mont Alto Co.
468
McGahey t!. Alston 147,1315,1317
McGargell v. Coal Co. 694
McGarrity v. Byington 644, 726
McGarry v. People 483, 539
McGee v. Guthry 736
McGehee v. Jones 469
McGenness v. Adriatic Mills 1170, 1177
McGill V. Ash 1077
V. McGill 976
V. Monette 823
V. Rowand 423
McGilvray v. Avery 805
McGinity v. McGinity 973, 1033, 1035,
1037
McGinnis v. Com. 1254
V. Grant 566
V. State 78, 160, 324
McGinniss v. Sawyer 94, 133
McGintry et al. v. Reeves 1043
McGlothlin v. Hemry 474
McGowan v. Laughlin 726, 727
McGowen v. West 912
V. Young 828 o, 832
McGrathw. Clark 626
V. R. R. 1081
McGregor v. Brown 944
V. Bugbee 73, 77
i;. Montgomery 130
V. State 11
y. Topham 729
V. Wait 736, 1138, 1182, 1183,
1217
McGregory v. Prescott 362
McGrews v. McGrews 1302
McGuire v. Bank 147
V. Grant 1346
TABLE OF CASES.
McGuire v. Maloney
429
V. McGowen
1035
V. Sayward
120
V. Stevens
901
, 956
McHose V. Wheeler
661
McHugh 0. Brown
1318
V. State
566
Mcllvaine v. Harris
1051
Mclnroy v. Dyer
393
Mclntire v. McConn
512
Mcintosh V. Saunders
1021
Mclntyre v. Meldrim
471
V. Park
545
V. Young
559
Mclver V. Moore
63
McKaig!) Hebb
472
McKean v. Massey
468
McKee v. Bidwell
1081
V. Boswell
1058
V. Jones
1214
V. McKee
135
V. Nelson
512
V. Phillips
992
McKeen v. Frost
430, 431
McKellar v. Peck
123
McKelvey v. Truby
1143
McKenire v. Fraser
199, 732, 733
McKenney v. Gordon
100
McKcnzie i>. Crow
122
McKeone v. Barnes 708,
714, 715, 718
McKern v. Calvert
551
MoKewn v. Barksdale
684
McKimm v. Eiddle
810,
1278
McKinley v. Irvine
726
V. Lamb
1009
V. McGregor
1205,
1217
McKinney v. McConnel
175
V. Miller
1032
V. Neil
555
V. O'Connor
324
V. People
387
V. Reader 857,
859, 860, 864
V. Slack
357
McKinnon v. Bliss
175,338,664
McKinster v. Babcock 1048, 1049,
1056
McKivitt V. Cone
525
McKnight V. Devlin
64
McKonkey v. Gaylord
708
McKowen v. McDonald
909
McKown V. Hunter
482
McLain v. Smith
109
1256
McLaren v. Birdsong
1290
V. Bk.
1058
McLean v. Clark
931,
1184
V. Hertzog
78
V. Houston
1045
V. Jagger
1216
V. State
491
V. Thorp
499
McLein v. Smith
109,
1256
McLellan v. Cox
1199
V. Crofton
357,
1364
V. Longfellow
1165
McLellan v. Richardson
601
,603
McLemore v. Nuckolls
760, 775
,837,
838,
1218
McLendon, ex parte
490
McLendon v. Hamblin
357
V. Shakleford
1081
McLennan v. Johnston
905
McLeroy v. Duckworth
942
McLoughlin v. Russell
975
McMahan v. Leonard
1315,
1317
V. McGrady
723
V. Stewart
1044
McMahon v. Burchell
838,
1084
V, Davidson
359,
1319
V. Harrison
1284
V. Macy
761, 1031,
1032
McMasters v. Carothers
980
V. Ins. Co.
923
V. R. R.
961
,965
McMichael v. McDermott
823
McMickenu. Com.
833
, 980
McMillan v. Bothold
142
V. Croft
490
V. Davis
347
V. Graham
980
McMillen v. Andrews
600
McMinn v. O'Connor
726
V. Owen
1058
V, Whelan
726,
1273
McMorine v. Storey
177
McMullen v. Brown
115
V. Mayo
1168
McMullin V. Glass
1042
McMurphy v. Bell
834
McMurray v. Spicer
945
V. St. Louis
1029
McNab V. Stewart
469
McNaghton's case
452
,666
McNail V. Ziegler
431
McNair v. Com.
714
V. Compton
864
V. Hunt
1352
V. Ragland
838,
1278
V. Toler
956
McNally v. Meyer
404
McNear v. Bailey
988
McNeeley v. Hunton
1190
V. Rucker
640
McNeil V. Arnold
302
,551
V. Hill
1066
V. Perchard
94
McNitt V. Turner
1302
McNorton v. Akers
1302
McNulty V. Prentice
1021
McPherson v. Foster
945
V. NeuiFer
685
V. Rathbone
151, 155
,727
McPike V. AUman
939
,942
McQueen v. Fletcher
135
u.' Sandel
837
McQuesney v. Hiester
788
McRae v. Mattoon
797
V. Morrison
151
,515
729
TABLE OF CASES.
McRea v. Bank 1184
McReynolds v. Longenberger 129, 732
V. McCord 140, 141
McTaggart v. Thompson 1011
McTucker v. Taggart 1021
McTyer v. Steele 1070
McVean v. Scott 626
McVey v. Blair 558
McVicker v. Beedy 805
Meacham v. Pell 517
Mead v. Boston 776
V. Parker 1227
V. Robinson 639
I). Steger 1046
Meade v. Black 838
Meads v. Lansingh 1056
Mealing v. Pace 510
Means v. De la Vergne 942
V. Means 689
Mears v. Graham 1243, 1258
Meason v. Kaine 864, 903
Meath v. Winchester 194, 195, 196, 583,
703, 732
Mechan v. Forrester 1031
Mechanics' Bank v. Bank of Colum-
bia 1170
V. Merchants' Bk. 1249
V. Nat. Bk. 702
V. Smith 545
V. Union Bk. 1315
Mechanics v. Wright 1363
Mechelen v. Wallace 863, 902
Medley v. Williams 192
Medlock v. Brown 368
Medomak Bk. v. Curtis 906, 1017, 1019
Medway v. U. S. 713, 1123
Meed v. Parker 901
Meegan v. Boyle 734
Meehan v. Williams 248
Meek t). Helton 1156
V. Spencer 147
Meeker v. Meeker 1042
Meekins v. Smith 389
Megerle v. Ashe 758
Mehan v. State 368
Meighen v. Bank 961, 962
Meixsell v. Williamson 412
Melcher v. Flanders 729
Meldrum v. Clark 977
Melen v. Audi-ews 1139
Melhuish v. Collier 27, 39, 549, 550
Mellish V. Robertson 1029
Mellon V. Campbell 1140
Melvin v. Fellows 944
V. Locks 1349, 1352
V. Lyons 99
V. Whiting 177, 838
Melville's case 321
Mence v. Mence 616
Mendenliall v. Davis 1059
V. Gately 315
Mendura v. Com. 437
Menk v. Steinfort 431
730
Menton v. Adams
1049
Mercer v. Cheese
1284
V. Patterson
427 429
V. Vose
446
V. Wise
1151
V. Wright
412
Merchant Co., in re
377
Merchants' Will
718
Merchants' Bank u. Marine Bk. 1184
V. Rawls 661, 1131
V. State Bank 1316
Merchant's Ins. Co. <^. De Wolf 808
Mercier v. Chace 795
Meredith v. Footner 1217
V. Meigh 876
V. Salmon 1009
Merick v, McNally 961
Meriden Co. v. Zingsen 880
Merkle v. State 438, 665, 666
Merle v. More 580
Merriam v. Field 1014
V. Liggett 879
u. R. R. 431, 569
V. Woodcock 779
Merrick v. Wakley 614, 639
Merrifield v. Robbins 289, 308
Merrill v. Atkin 466
V. Blodgctt 1051
V. Dawson 287, 977
V. Foster 824
V. George 389
V. Nightingale 529
V. R. R. 521
Merritt v. Baldwin 1302
V. CampbeU 781
V. Clason 75, 616
V. Merritt 302
V. Seaman 509
V. Thompson 1274, 1276
V. Wright 90, 93, 133, 142, 1103
Mertens v. Nottebohms 1133
Mertz V. Detweiler 1208
Merwin v. Ward 153, 1264
MeseiTO v. Hicks 645
Messer v. Reginnitter 444
Messin v. Ld. Massareene 801
Messina v. Petrococchino 801
Messncr v. People 268, 513
Metallic Conip. Co. v. R. R. 1294
Metcalf V. Conner 1200
V. Munson 640
Methodist Chapel v. Ilerrick 661
Metters v. Brown 1332
Metzer v. State 527
Mctzner !■. Baldwin 1049, 1056
M'Ewnn v. Smith 875
Mewman v. Studley 1352
Mewstor v. Spalding 98, 287
Mexican & S. Amer. Co., ox parte 538
Meyer v. Barker 136, 1265
V. Beardsley 1058
V. Glaus 490
V. Huneke 931
TABLE OF CASES.
Meyer v. Mohr
834
V. Peck
1070
V. Eeichardt
1140
V. Sefton
80
Meyers v. Hill
986
V. Schemp
863
Meyrick v. Woods
155
MTadzen v. Mayor
490
M'Farson's Appeal
864
M'Gahey v. Alston
1315
M'Gowan v. Smith
1112
Mialhi v. Lazzabe
910
Mich. Cent. K. R. v. Coleman 1174, 1176
V. Gongaz 1174
Mich. State Bank v. Peck 953
Michan v. "Wyatt 768
Michell V. Eabbetts 197
Mlchener v. Cavender 1052
;;. Lloyd 63
V. Payson 108, 829
Michenor v. Kinney 693
Middlebury v. Eutland 510
Middlesex v. Thomas 1064
Middlesex Bank v. Butmann 802, 805
Middleton Bank 2). Dubuque 115,741.
Middlcton v. Earned 281, 496
V. Croft 1240
V. Janverin 308
V. Mass 194, 733
6. Melton 226, 232
Middleton, in re 898
Midland R. E. v. Bromley 363
Midlothian v. Finney 942
Mifflin V. Bingham 491
Milan v. Pemberton 63
Milbank v. Dennistonn 175
Miles V. Bough 69, 77
V. Caldwell 64, 958, 989
». Furber 1142,1149
V. Knott 115, 258
V. McCuUough 389
t. O'Hara 180, 420, 951, 1061
V. Roberts 901, 904
V. Stevens 637
V. Wingate 644, 824
Milk V. Moore 357
Millard v. Bailey 940, 993
D. Hall 151
Millay V. Butts 1331, 1336
Mill Dam v. Hovey 694
Milledge v. Gardner 1360
V. Iron Co. 1362
Miller's case 1220
Miller v. Avery 288
V. Bagwell 1046
K.Burns 1140
V. Butler 975
V. Cheixy 945
w.Chetwood 1021
V. Cotton 61
V. Covert 788
D.Davis 933,1030
V. Deal 357
Miller v. Deaver 824
V. Dillon 727
V. Fichthorn 1015, 1019, 1047
V. Finley 626
V. Gilleland 626
V. Goodwin 1042, 1048
V. Gow 755
V. Hackley 123
V. Hale 740
V. Hampton 977
V. Henderson 1019, 1026
V. Lang 1149
V. Manice 788
V. Mather 742
V. McCoy 1044
V. Mclntyre 1301
V. Miller 931, 1026
V. Moses 1040
V. Neimerick 1196
V. Pennington 763
V. Price 1019
V. Proctor 1241
w. E. R. 1108
V. Smith 445, 448, 452, 1019
V. State 1168
V. Stem 412
V. Stevens 940, 961
V. Stokely 1035
V. Sweitzer 1204
V. Tetherington 961 a
V. Tobie 909
V. Travers 945, 992, 993, 1004,
1006
V. XJ. S. 833
V. Washburn 1018, 1051
V. White 761, 765, 1058
V. Williamson 422
Millett V. Marston 616, 1014
Milligan v. Lyle 1061
V. Mayne 724
Milliken v. Barr 152
V. Dravo 909
V. Marlin 629
Milling V. Crankfield 939, 1050
Mills V. Barber 356
V. Brown 276
b. Catlin 667
V. Colchester 636
V. Duryee 96, 808
V. Hamaker 1308
V. Hunt 874
V. Hyde 1362
0. Johnston 357
V. Lewis 1028
V. Oddy 582
V. Twist 726
Milmine v. Burnham 1021
Milne w. Leisler 1102
Milner v. Harewood 1039
Miltimore v. Miltimore 135, 758
Milton V. Rowland 512
V. E. E. 1060
Milward v. Forbes 1099
731
TABLE OF OASES.
Milward v. Temple
1184
Milwaukee R. R. v. Finney
1174, 1175
Mima Queen v. Hepburn
175
Mimms v. State
551
Mims V. Sturdevant
178, 520
V. Swartz
287
Minard v. Mead
725
Mincke v. Skinner
439
Miner v. Hess
1021
V. State
205
V. Walter
781
Mineral Point R. R. v. Keep 180, 514
Minet v. Morgan 578, 579, 580, 583, 584,
754
Minier v. Minier 439
Minnesota Linseed Oil Co. v. Collier
White Lead Co. 1128
Minor v. Bank 1305
V. Phillips 1165
V. Sharon 336
V. Tillotson 1315
Minot V. Mitchell 1033
Minter v. Crommelin 1318
Minturn v. Main 1017
Mish V. Wood 449
Mishler v. Merkle 466
Missouri v. Kentucky 664
Missouri R. R. v. Haines 528
Mitchell V. Cotten 1189
V. Jacobs 160
V. Jenkins 356
V. Kintzer 797, 1021, 1030,
1038
V. MoDougall 931
V. Mitchell 775, 824, 996, 1019
V. Napier 1120, 1137
V. Newhall 1241
V. Rockland 1209
V. R. R. 359
V. Sanford 789
Mitchinson v. Cross 430, 431, 478
Mitchum v. State 259
Mithoff V. Byrne 956
Mix V. Osby 505
V. Woodward 32, 975
M'Kain v. Love 602
M'Kav V- Rutherford 883
M'Kenan v. Rolt 490
M'Kenney v. Rhoads 47
M'Lees v. Felt 416
M'Mahon v. Lennard 1315
M'Neil, ex parte 389
Moale V. Buchanan 909, 1021
Mobile Ins. Co. D. McMillan 902,1015
Mobile R. R. «. Ashcroft 41, 259, 260,
1174, 1175, 1180, 1182
V. Edwards 697
V. Whitney 288
Mobley v. Hamit 565
V. Ryan 1301
Mobly w. Barnes 1167
Mock V. Astley 1338
Modawell v. Holmes 335, 338
732
Moehring v. Mitchell 1280
Moers v. Mortens H94
Moffat V. Moilat 249, 795, 980
Moffit V. Varden 1274
V. Witherspoon 1187
Moke V. Fellman 1097
Mollett V. Robinson 75
V. Wackerbarth 622, 626, 627
Moloney v. Dows 540
Molton V. Camroux 931, 1146
V. Harris 112
Molyneaux v. Collier 253, 557, 1090
Monaghan v. School District 641 , 642
Mondel v. Steel 780, 790
Money v. Jorden 487, 1145
V. Tnrnipseed 339
Monkee v. Butler 1315
Monkton v. Att. Gen. 201, 205, 208, 214,
216, 218, 219, 267
Monon. Nav. Co. v. Coons 290
Monroe v. Napier 477
V. Twistleton 429
Monsel v. Lindsay 756
Montacute v. Maxwell 882, 907,910, 9U
Montague ». Dudman 751, 754
V. Garnett 864
V. Perkins 632
Montefiore v. Guedalla 974
Montefiori v. Montefiori 1145
Montgomery v. Bevans 1274
V. Dorion 729
V. Gilmer 444
V. Hunt 549
V. Pickering 479, 576, 584,
931
V. Plank Road 339
V. Robinson 821
V. Scott 510
V. Shockey 1021
Montgomery Plank Road v. Webb 1284
Montimoi Beach v. Rogers 198, 645
Moody V. Com. 130
V. Davis 514
V. McCown 953, 1030
V. Moody 63
V. Roberts 678
V. Rowell 500, 501, 527, 528, 529,
709, 714, 718, 719, 720
V. Sabin 268
V. State 290
i;. Surridge 961 a
Mooers v. Bnnker 201, 216, 701, 1273
Moon V. Story 1132
Mooney v. Kennett 293
Moons V. De Bernales 810, 1278
Moor r. Roberts 490
Moore K. Bank 123
V. Beattie 147
V. Butler 1210
V. Campbell 906
V. Davidson 1027
V. Davis 192
V. Des Arts 1243
TABLE OF CASES.
Moore v. Dunn
1137
V. Gwynn
V. Hart
300, 302
872
V. Hitchcock
1088
V. Jones
417, 551
V. King
V. Livingston
V. Meacham
886
140
518, 521
V. Moore 516,
697, 698, 887, 1035,
1124
v. Munn
1019
V. Neil
1302
V. Quirk
u. Small
697
864, 909
V. Smith
1137, 1138, 1360
V. State
436
V. Taylor
V. Tillotson
466
142
V. U. S.
713
V. Voss
826
17. Wade
1031
V. Whitehouse 139
V. Wingate 427, 431, 1030
Moorehouse v. Mathews 510
D.Potter 115
Moorman v. Collier 1029
Moots V. State 518
Moppin V. ^tna Axle, &c. 21
Moran v. Pvather 920, 958, 961, 972
Mordecai v. Beal 61, 1266
More V. Worthington 123
Moreauw. Branham 1318
Morein v. Solomons 505
Moreland v. Mitchell County 437, 439,
444, 1295
Morewood v. Wood 188
Morgan v. Bliss 781
V. Boys 175
V. Chetwynd 1257
V. Coachman 1083, 1092
V. Curtenius 99, 740
V. Evans 1136
V. Griffith 1026, 1027
!J. Hubbard 1196
V. Jones 160
V. Livingston 975
V. Morgan 726
V. Morse 357
V. NichoU 177
0. Patrick 725
0. Patton 775
V. People 76
V. Pike 873
V. Pnmell 201, 205, 213
V. Eoberts 420
V. Shinn 1031, 1032
V. Sims 262
V. Spangler 944
V. State 1302
V. Sykes 870
V. Thome 767, 1208
V. Van Ingen 123
V. Whitmore 977
Morgan Co. Bk. v. People 122
Moriarty v. R. K. 1085, 1207, 1265
Morissey v. Ingham 268
V. People 439
Moritz V. Brough 1011
Morland v. Isaac 1133, 1140
Morley v. Knney 467
V. Gaz. Co. 346
Morley 's case ' 178
Morniugton v. Mornington 590
Morong v. O'Laughlin 466
Morphett v. Jones 909
Morrell v. Cawley 1124, 1216
V. Dixfield 1209
V. Fisher 1005
V. Martin 813
V. Wootten 756
Morrice v. Swaby 755, 756
Morrill v. Cone 1353
V. Cooper 909, 910
V. Foster 141, 208, 223, 266, 644
V. Gelston 120
V, Mackman 854
V. Otis 61
V. Titcomb 1101
Morris v. Boweu 967
V. Bowman 629
V. Briggs 682
V. Callahan 194
V. Davidson 287
V. Davies 1297, 1298
V. East Haven 513
V. Edwards 338, 654, 956
V. Glynn 864
V. Halbert 797, 985
V. Hannen 154
V. Harmer 338, 664
V. Harris 429
V. Hauser 154
V. Hazelwood 47
V. Hulbert 982
V. Hurst 620, 1134
V. Keyes 66, 1 1 1
1/. Lennard 401
0. Lotan 1111
V. McMorris 699
V. Miller 77
V. Parr 490
V. Patchin 100
V. Ryerson 1046
V. Stokes 514
V. Swaney 139
V. Vanderen 90, 740
V. Wadsworth 1094
V. Whitmore 1019
V. Wordsworth 740
Morris & E. R. R. v. State 360
Morris's Lessee v. Vanderen 210
Morrison u. Arnold 184
V. Chapiu 72, 823
V. Gen. St. Nav. Co. 331
V. King 1318
V. Lennard 406, 407
733
TABLE OF CASES.
Morrison v. Lovejoy 930
V. Morrison 1021, 1067
V. Myers 68, 947
V. Taylor 939
V. Welty 141
Morrissey v. Ferry Co. 655, 1273
Morrow w. Com. 162
V. Parlcnian 420
V. Saunders 742, 743
V. Willard 1339
Morse v. Congdon 678
u. Connecticut River R. R. 1177
V. Copeland 863
V. Crawford 515
V. Emery 185
V. Hewctt 324
V. Low 466
V. McCall 1318
V. Presby 795
V. Royal 1204
V. R. R. 1177, 1182
V. Shattuck 1042, 1046
V. State 510
V. Thorsell 175
V. Toppan 768
Morss V. Morss 600
V. Palmer 569
Morthrop v. Wright 732
Mortimer v. Cornwell 868
V. Craddock 1264
«. McCallen 82,90,114,1170,
1173, 1174, 1180
V. Mortimer 1220
V. Shortall 1019, 1022
Morton w. Barrett 120,223
i;. Comptroller 290
V. Copeland 368
V. Dean 868, 872
V. Deane 901
V. Smith 1053
V. Sweetzer 781
V. Tibbett 875
I,. White 60
Mosby V. Wall 1019, 1021
Moseley v. Davies 186, 187
V. Eakin 429, 608
V. Hanford 1058
V. Mastin 282
Mosdy V. TuthiU 807
Moses V. Macferlan 788
Moss V. Anglo-Egypt. Man. Co. 785
V. Anderson 701, 739 a, 1273
V. Culver 909
V. Green 1015
V. McCuUough 761, 771
V. Oakley 761
Mossam v. Ivy 346, 664
Mosser v. Mosser 253
Mossman v. Forest 317, 339
Mossop V. Eadon 149
Moatyn v. Fabrigag 314
V. Mostyn 1008
Motley V. Motley 1064
734
Mott V. Doughty
726, 729
V. Hicks
1061
V. Richtmyer
920
V. R. R.
444
Mouchet V. Cason
629
Mouflet V. Cole
282, 335
Mould V. Williams
813
Moulton V. Bowker
1184
V. Mason
156, 468
V. JlcOwen
444
Mountain v. Fisher
422
Mountford v. Harper
1363
Mountnoy v. Collier
237, 1156
Mountstephen v. Lakeman
879, 880
Mourning v. Daris
377
Movan v. Hays
1033
Mowry v. Chase
442
Moye V. Herndon
719
Moyer's Appeal
1214
Muckleroy v. Bethany
629
Mudd V. Suckermore
707, 713
Mudgett V. Howell
662
Muir V. Demaree
626
Muldowney v. R. R. 361,
436, 437, 444,
452
Mulford V. Stalzenhack
982
Mulhado o. R. R.
346
Mulhall V. Keenan
1127
Mulholland v. EUiston
1162
MulhoUin v. State
505
Mullan V. Steamship Co.
1173
Mullen V. Morris
289
V. Pryor
1284
Mullen, in re
888
Muller V. Hoyt
MuUiken v. Greer
152
1156
MuUis V. Gavins
741
Mulvy V. Ins. Co.
436, 507
Mumford v. Bowne
319
V. Gething
940
Mumm V. Owens
468, 477
Muucey v. Dennis
958
MundorfF v. Wickersham
1171
Mundy v. Mundy
896
Munn V. Baldwin
1323
V. Godbold
74
Munns v. Dupont
739
Munroe v. Behrens
1021
V. Bordier '
1061
V. Douglass
303
V. Eastman
629, 977
f. Gates
1313, 1353
V. Guilleaume
309
V. Pilkington
801
0. Skelton
1019
Munson v. Hastings
570
V. Wickwire
1194
Murchie w. Black
1346
Murchison v. McLeod
152
Murdoch v. Hunter
726, 727
Murdock v. Finney
1133
Murietta v. Wolfhagen
701, 1273
Murly r. McDermott
1340
TABLE OF CASES.
Murphy v Brydges 528
u. Deane 361
u. Dunning 906, 1017, 1021
u. Georgia 84
V. Hubert 864, 903, 1217
V. Lloyd 210
». May 1174
V. Orr 1284
V. Sullivan 883
Mnrrah v. Bank 1044
Murray v. Clarendon 840
i;. Cone 1101
V. Coster 1090
V. Dake 1019
V. East India Co. 694
V. Elston 377
V. Gibson 976
V. Gregory 1091, 1098
V. Harway 906, 1017
V. Hatch 961
V. King 1017
V. Marsh 97
V. McKee 881
V. Oliver 1163
V. Parker 1022
V. Smith 1044
V. Stair 930
V. Walker 1032
V. Walter 756
Murrell v. Whiting 362
Muscoigno v. Radd 258
MttSgrave v. Emerson 226, 229
Mushat V. Moore 838, 1119
Musick t). Barney 115
Musselman v. R. R. 1069
V. Stoner 901, 906, 1019,
1025, 1027, 1067
Mussen v. Price 1363
Musser v. Johnson 1061
Mussey v. Beecher 1183
V. Holt 861
Mutual Ben. Co. v. Ruse 1065
Mutual Benefit Life Ins. Co. v. Tis-
dale 176, 810, 811, 923
Mut. Ins. Co. V. Cannon 1170
V.Newton 1103
V. Wager 358
Mutual Loan Fund Assoc, v. Lud-
low 952, 1062
Myatt V. Walker 1252
Myer y. Graffin 678
V. Peck 1070
Myers V. Anderson 183
V. Byerly 909
V. Clark ' 828
V. Kinzie 1166
V. Ladd 944
V. Morse 879
V. Peeks 1047, 1049
V. Perigal 864
V. Sari 961, 961 a
V. Smith 63
V. Toscan 713, 714
Myers v. Walker 961
Myrick v. Dame 920
Mytton V. Thornbury 187
N.
Naglee v. IngersoU 1040
Nalle V. Gates 1196
Napper v. Sanders 1274
Narragansett Bank v. Silk Co. 1 53
Nash u. Armstrong 1018
V. Gibson 1158
V. Hall 353
V. Hunt 512, 781
V. Town 951
Nashville R. R. v. Messino 1174
Nason v- Grant 861
V. Woodward 21
Nass V. Van Swearingen 537
Natchbolt V. Porter 860
Nat. Ex. Co. V. Drew 1170
Nat. Ins. Co. o. Loomis 873
Nat. Life Ins. Co. v. Allen 950
National Bank v. Ins. Co. 1021
V. Ocean Bank 40
V. Perry 1060
V. Sprague 769
Nat. Un. Bk. v. Marsh 708
Nations v. Johnson 775
Nave V. Wilson 788
Nazro v. Puller 624
Neaderhouser v. State 339
Neal's case 454
Neal V. Jay 664
V. Wilding 210
Neale v. Cunningham 533
V. Fry 664
V. Neale • 856
Nealley v. Greenough 1 60
Nedridek v. Meyer 1044
Needham v. Ide 512
V. Smith 393
V. Washburne 335
Neel V. Potter 1012
Neeley «. Lock 1246
Neelson v. Sanborne 869
Neely v. Naglee 1173
V. Neely 726, 739, 888
Neenan v. Smith 1260
Neeves v. Burrage 296
NeflF V. Horner 626
Neil 17. Childs 517,519
V. Neil 886
Neile v. Jakle 1136
Neilson v. Ins. Co. 553
Nelson v. Davis 933, 1028
V. Fotterall 123
u. Iverson 555,1168
V. Johnson 718
u. McGiffert 892
V. Moon 645
V. People 1315, 1319
735
TABLE OF CASES.
Nelson v. R. R.
967
V. State
491
V. Stocker
1151
V. Weeks
1064
Nepean v. Doe d. Knight
1276
Nesbitt V. Berridge
840
V. Loekman
1362
Nesham v. Selby 617, 619, 872, 901
Netherwood v. Wilkinson 382
Nettles V. Harrison 175
Nettleton v. Sikes 867
Neusbaum v. Keim 783
Neven w. Belknap 1144
Nevil V. Johnson 177, 178
Neville v. Northcutt 682, 684
V. Robinson 820
V. Wilkinson 1145
Nevin v. Drysdale 974
Nevins i>. Martin 1008
New Albany Co. v. Fields 1050
Newall V. Elliott 800
New Bedford v. Hingham 357
New Berlin v. Norwich 923
Newbuigh v. Newbiirgh 995,, 1008
Newbury v. Brunswick 83
Newby v. Reed 1283
Newcomb t). Cramer 1127
V. Griswold 63, 68, 541, 567
V. State 535, 545
Newell !J. Homer 549, 899
V. Horn 1168
V. Newell 838
V. Newton 324
V. Radford 871, 949
V. Smith 115
New Eng. Co. v. Vandyke 662
New Eng. Ins. Co. V. De Wolf 1127
V. Schetler 1172
New Gloucester v. Bridgham 528
Newhal v. Wadhams 562
Newhall v. Ireson 1339
Newham v. Raithby 654
New Haven Bk. v. Mitchell 61, 123, 730,
739, 979, 1323, 1325, 1327
New Haven Co. v. Brown 357
New Jersey Co. v. Boston Co. 946, 961
New Jersey R. R. Co. v. Pollard 464,
465
Newlin v. Beard 632
Newman v. Bean 259
V. Bradley 420
V. Doe 122
U.Jenkins 810,1275,1278
V. Mackin 562
V. Piercey 882, 998
V. Stretch 266
V. Wilbourne 1165
Newmarker v, Ins. Co. 436
New Orleans v. Halpin 1318
New Orl. Co. v. AUbritton 441
New Orleans Canal Co. v. Temple-
ton 317, 1301
New Orleans R. R. v. Lea 120
736
New Pordand v. Kingfield 366, 556
Newrv & Bnnisk. Rail. Co. v. Combe
1272
Newsom v. Buiferlow 1019
V. Carr 47, 53
V. Jackson 60
V. Thighen 935
Newsome v. Coles 673
Newton v. Belcher 1077
V. Blunt 772
V. Chaplin 150, 585
V. Clarke 886
V. Cocke 288
V. Harland 381, 382
V. Harris 545
b. Hook 781, 784
V. Jackson 569, 1044
V. Liddiard 1077
V. Price 1103, 1127
V. Swazey 909, 912
V. White 758, 785, 1175
New York Co. v. De Wolf 1069
V. Richmond 90, 136
New York Dry Dock v. Hicks 115
New York Ice Co. v. Ins. Co. 1019
V. Parker 1092
New York Ins. Co. v. Graham 358
New York & N. H. R. R. u. Schuyler
1170
Ney V. R. R. 980
Niantic Bk. v. Dennis 1318
Nichol V. McAlister 1355
V. McCalister 821, 1347
V. Vaughan 367
Nicholas v. Lansdale 1273
NichoUe v. Plume 875
Nicholls V. Dowding 499, 504, 1194
0. Downes 1133
V. Osborn 993
V. Webb 123, 519
Nichols V. Allen 465, 725, 1095
V. Alsop 1133
V. Aylor 1350
V. Bell 1044
V. Binns 1253
V. Cabe 1031
V. Gates 1349, 135S
V. Goldsmith 240, 251
ti. Haynes 679
I'. Johnson 871
V. Parker 187
V. Romaine 66
V. Stewart 570
V. The Kingdom Iron Ore Co.
482
». Webb 238, 239, 240, 654, 688
Nicholson v. Bower 875, 876
V. Patton 702
V. Revill 626
V. Sherard 490
V. Smith 1090
Niokells v. Athersto 860
Nickerson v. Buck 726
TABLE OF CASES.
Nickle V. Baldwia
685, 686
Northumberland Bank v. Eyer
1061
Nicklin v. Wythe
1035
North West R. R. v. McMichael 1272
Nicks V. Eector
726
Norton v. Barett
886
NicoU V. Mason
1033
0. Coons
1059
Nieman v. Ward
185, 1338
V. Doherty
779
Nieto V. Carpenter
1334, 1358
V. Downer
518
Nightingal v. Devisme
828 a
V. Harding
784
Niles V. Patch
1168
V. Heywood
154
V. Sprague
115, 659
V. Kearney
1164
Killer v. Johnson
712, 719
V. Ladd
395
Nimmo v. Davis
301
V. Mallory
903
Nims V. Johnson
136
V. Meador
796
Nixon's Appeal
1037
V. Moore
512
Nixon V. Car Co.
1352
V. Pettibone
262
V. Cobleigh
141, 949
V. Preston
910
V. Palmer
1284
V. Warner
47
V. Porter
127, 638
733, 1028
Norvell v. McHenry
325
Noble V. Bosworth
1050
Norwich Bank v. Hyde
622
V. Cope
1040
IjTorwieh Nav. Co. v. Theobald
675
V. Durell
958
Norwood V. Byrd
1050
V. Kelly
1063
V. Cobb
100
V. Kennoway
44,
962, 1243
V. Kenfield
549
V. Oil Co.
808, 815
Nourry v. Lord
464
!/. Phelps
900
Nourse v. McCay
654
V. Ward
901, 902
906, 1017
V. Nourse 1100, 1101, 1155
V. Willock
811
Novelli V. Rossi
627, 803
V. Withers
466, 478
Nowell V. Wright
509
Nodin V. Murray
93
Noxon V. De Wolf
979, 1301
Noe V. Hodges
1058
Noyes v. Canfield
961 a
Noel V. Wells
811,816
V. Humphreys
902
Nolan V. Bolton
1007
Nuckolls V. Pinkston
509
Nolen V. Gwyn
129, 1043
Nudd V. Burrows
175, 1205
Nolin V. Parmer
518
Nugent V. State
562
Nolley V. Holmes'
678
Numbers v. Shelly
824, 832
Nones v. Homer
864, 883
Nunes v. Perry
715
Noonan v. State
1138
Nunn V. Pabian 414
, 467, 909
Norman v. Morrell
972
Nunnally v. White
1260
V. Phillips
875, 876
Nute V. Nute
558
V. Wells
450, 510
Nutting V. Herbert
1044
Norment v. Fastnaght
972
V. Page
259
Norris v. Blair
869, 878
Nye V. Kellum
1064
V. Cooke
878
V. McDonald
123, 320
V. Moen
177
V. Merriam
553
V. Morrill
955
V. Russell
135, 141, 646
North V. Miles
1204
0.
V. Moore
795
Northam v. Latouche
98
Oakea v. Hill
120
No. American Co. v. Sutton
661
V. Turquand
120
North Am. Ins. Co. v.
Throop
710, 1172-
V. Weller
1323
North Assam Tea Co.
in re
1152
0. Weston
509
North Bank v. Abbot
250
Oakham v. Hall
838
North Berwick Co. v. Ins. Co.
872, 1103,
Oakley v. State
1064
1127
Oaks V. Harrison
358
North Bk. v. Bnford
713
Oatman v. Barney
129
North Brookfield v. Warren
82, 660
Obart V. Letson .
1365
Northfield v. Vershire
83
O'Beirne v. Lloyd
788
North Ga. Mining Co.
V. Latimer 469
Ober V. Carson
962
North Mo. R. R. v. Akers
452
Obermier v. Core
120
North of England Bk.
Co., in re 1151
Oberthier v. Stroud
1035
Northrup v. Ins. Co.
1177
Obicini v. Bligh
803
a. Jackson
901
O'Brian w. Com.
177
North Stonington v. Stonington 175, 1101
O'Brien v. Cheney
1108
VOL. II. 47
737
TABLE OF CASES,
O'Brien v. Plynn
V. Gilchrist
Ocean Bk. v. Williams
Ocean Ins. po. v. Fields
V. Francis
Ocean Nat. Bank of N. Y. v.
O'Connell's case
O'Connell v. Barry
O'Conner v. Malone
O'Connor v. Hallinan"
V. Kelley
V. Majoribanks
V. Spaight
V. Varney
OdeU V. Culbert
V. Koppee
Odenbaugh v. Bradford
Odiorne v. Bacon
V. Maxcy
V. Winkley
Odom V. Shackleford
O'Donnell v. Brehen
V. Leman
V. Segar
Oelrichs v. Ford
Offutt V. John
V. Offutt
O'Flaherty, in re
O'Gai'a V. Eisenlohr
Ogden V. Parsons
V. Peters
V. Walters
Ogilvie V. Foljambe
Ogle V. Norcliffe
V. Lord Vane
O'Hear v. De Goesbriand
O'Herlihy v. Hedges
Ohio V. Hinchman
Ohio L. & T. Co. V. Debolt
Ohio R. K. V. Irvin
V. Middleton
Oiler V. Bodkey
Okeden v. Clifden
Okill V. Whittaker
Old Col. R. R. V. Evans
Oldfield V. E. E.
Oldham v. Bentley
V. WooUey
Olding, in re
Olds V. Powell
Oldtown V. Shapleigh
O'Leary v. Martin
Oleson V. Tolford
Oliphant v. Ferren
V. Taggart
Olivari v. Menger
Olive V. Adams
V. Gain
Oliver v. Hondlet
V. Ins. Co.
V. Parsons
V. Pate
V. Phelps
738
1077
Olmstead v. Mtna. Live
Stock, &c.
1070
Ins. Co.
1172
124
V. Bank
549
291
Olmsted v. Hoyt
983
814
Olney v. Chadsey
1131
Carll 661
V. Fenner
1350
604, 1242
Olven V. Boyle
117
490
Olver V. Johns
888
654
Omerod v. Chadwick
1308
715
Omichund v. Barker 120
387, 395, 1052
1046, 1047
Ommaney v. Stilwell
1277
464
Omohundro's Est.
84
863
O'Neal V. Brown
77
790
V. Eeynolds
468
688
V. Teagne
1019
396
Oneale v. Com.
84
1031
O'Neil V. Dickson
123
106, 107
V. Lowell
513
1194
V. Mining Co.
1284
547
V. Walton
518
276
O'Neill V. Allen
1348
901
f. Lowell
551
872
V. Read
1124
529
Onions v. Tyrer
898
950, 960
Opdyke v. Stephens
945
758
Oppenheim v. Leo Wolf
335,339,1283
795
Oram v. Bishop
1140
624
Ordway v. Conroe
98
83, 1226
V. Dow
995
444
V. Haynes 544
562, 665, 667,
1165
676
824
Orguerre v. Luling
1026
873
Orman v. Neville
100
324
Ormsby v. Ihmsen
444, 972, 1338
901, 902
V. People
1205
1068
Orne v. Cook
132
910
O'Eourke v. Perceval
873
98, 100
Orr V. Hadley
177
335, 338
V. Lacy
123, 320
446
B. Morice
736
937, 950
V. N. T.
446
936
V. State
506
1002
Orrell v. Coppock
879
1017
Orrett v. Corser
228
942
Orton V. Harvey
1050
361
V. McCord
576
1194
Osborn i>. Allen
1274
1353
V. Bell
177
888
V. Black
422
520
V. Forshee
499
828, 833
V. Hendrickson
921
1060
V. London Dock Co. 483, 490,
436
535, 538
115
V. Robbins
265
727
V. Staley
290
931
V. State
107
152, 489
V. Thompson
356, 357
321
Osborne v. Endicott
1040
1272
V. Phelps
371, 1021, 1024
1019
V. Varney
992
141, 824
Osgood V. Bringolf
1174
603, 604
I). Manhattan Co.
1199, 1199 a
939
11. McConnell
958
TABLE OF CASES.
Oshey v. Hicks
Otey V. Hoyt
Otis V. Hazeltine
V. Thorn
O'Toole's Est.
Ott V. Heighton
V. Soulard
Ottawa V. Graham
V. Parkinson
Ottenhouse v. Burleson
Otto V. Jackson
Ontcalt V. Ludlow
Outhwaite v. Lumley
Outlaw V. Davis
V. Hurdle
Outram v. Morewood
Outwater v. Dodge
Ouzts V. Seabrook
Overman' w. Cobbe
Overmyer v. Koerner
Owen V. Adams
V. Boyle
V. Brockschmidt
V. Collins
V. Nickson
V. Paul
V. Slack
V. State
V. Thomas
Owens V. Dawson
V. Lewis
V. Northrup
a. Rawleigh
Owing V. Speed
Owings V. Amot
V. Hull
V. Nicholson
Oyster v. Bellas
Pacific E. R. V. Governor
Pacific Works v. Newhall
Packard v, Clapp
u. Dunsmore
V. Hill
V. Reynolds
V. Richardson
Packet Co. v. Clough
V. Sickles
Paddock v. Forrester
V. Salisbury
Padgett V. Lawrence
Page V. Arnim
V. Cole
V. Einstein
V. Eaucet
V. Homans
V. Kankey
V. Kinsman
V. Monks
1312
Page V. Page
903, 1035, 1362
713
V. Parker 175,
436, 443, 499, 1175
869
V. Sheffield
1015
509
V. Stephens
1265
377
V. Swanton
1199
566
Paget V. Cook
1044
291, 640
Pagett V. Curtis
100, 325
450
Paige V. Cagwin
1163, 1163 a, 1165
442
V. Hazard
510
909
V. Sherman
1021, 1042
690
V. Stone
1062
1162
V. Willet
1110
626
Pailhes v. Thielen
819
1302
Pain V. Mclutier
1157, 1160
571,713
Paine v. Boston
1290
759, 764, 779
u. Dwinel
1362
875
V. Earr
21
470
V. Lake Erie
289, 310
1108
V. Rice
123
909
V. Sherwood
521
240
V. Tilden
569
65,
300, 302, 314
V. Woods
677
478
Painter v. Austin
1199 a
820
V. Painter
1008
744
Palister v. Little
Palmer v. Aldridge
834
151
318
1265
V. Boling
1318, 1354
1302
V. Cassin
1165
689
V. Eerrill
1290
838
V. Hatch
967
866
V. Hicks
1349
1173
V. Kellogg
466
779
V. Lawrence
1068
661
V. Manning
1095
624
V. Newall
974
287, 289
V. Richardson
909
110
u. Stephens
889
1338
V. White
496
V. Wright
756
Pancoast v. Addison
223, 1277
Pangborn v. Young
290
Panton v. Norton
513
r
747
V. Tefft
956
11
1016
Pape V. Lister
744
366
Papendick v. Bridgewater 237, 1156;
726
1161, 1163
110
Papin V. Eyan
287
431
Pardee v. Lindley
115
869
Pardee v. Price
141, 147, 148
431, 1174, 1175,
Paris V. Haley
906, 1017
1180
Parish v. Gates
1031
785
V. Parish.
795
1090
V. Stone
1044
53
Park V. Harrison
1331
1165
V. Mears
730
740
V. Miller
1015
961
V. Pratt
945
1026
Parke v. Chadwick
1019, 1026
282, 335
V. Leewright
909, 910
708
V. Williams
98
550
Parker v. Benjamin
1019
1149
V. Chambers
411, 510
902
V. Davis
931
739
TABLE OF CASES.
Parker v. Donaldson 683
0. Foote 1350
K. Foy 1042
V. Haggerty 507
V. Hawkshaw 582
V. Hoskins 726
V. Ibbetson 969
V. Jervis 875
V. Johnson 441
V. McWilliam 491
V. Merrill 1196
V. Morrell 1196
V. Parker 909
V. R. R. 1243
V. Smith 1039
V. Staniland 866, 867
V. State 1212
V. Steamboat Co. 259, 260
V. St. Co. 509
V. Syracuse 906, 1017
V. Thompson 64, 988, 989
V. Tuttle 979
V. WalUa 875
V. Wells 910
V. Willson 869
Parkey v. Yeary 265
Parkhurst v. Gosden 743
V. Lowten 534, 536, 540
V. Van Cortland 856, 909,
1014
Parkin v. Moon 500, 527, 730
Parkman v. Rogers 872
Parks V. Brinkenhofi 873, 1061
V. Dunkle 142
Parlange v. Parlange 455
Parmellee v. Austin 500
Parmlee v. Sloan 1035
Parr, in re 888
Parrish v. Koons 864
Parrott v. Wells 359
Parry v. May 154
V. Nicholson 622
Parsons v. Carr 490
V. Copeland 819, 838
V. Hancock 1121
V. Huff 412
V. Ins. Co. 444, 510, 521
u. Loyd 1302
V. Tapliff 357
Partcn v. Cole 61
V. Crofts 75
Partridge, ex parte 743
Partridge «. Badger 661,663
V. Clarke 931, 1023
V. Coates 153
V. Colby 626
V. Gilbert 1346
V. Ins. Co. 920
V. Scott 1346
V. Usborne 788
Parvin «. Capewell 1214
Paschall v. Dangerfield 1347
Pasmore v. Bonsfield 1111, 1316
740
Passaic Co. v. Hoffman
872
Patch V. Ins. Co.
961
V. Lyon
1184
Patchin v. Ins. Co.
555
V. Swift
869
Paterson v. Schenck
726
Patmor v. Haggard
879
Paton V. Coit
1301
Patons V. Westervelt
183
Patrick v. Gibbs
99
V. Shedden
801
V. The Adams
511, 515
Pattee v. McCrillis
■ 123
Patten u. Casey
1049
V. Farmers' F. Ins.
Co. 1172
V. Newell
1058
V. Pearson
1061
V. People
551, 559
Patterson v. Black
1277
V. Britt
833
V. Clyde
363
V. Colebrook
509
V. Doe
61
u. Flanagan
262
V. Gaines
85
V. Gile
697
V. Linder
152
V. HcCausland
332, 335
V. McNeeley
626
V. R. R.
361, 1174
V. Tucker
730
V. Winn
151
Patteshell v. Tnrford
1330
Pattison v. Armstrong
466, 470, 471
V. Horn
864
Patton V. Alexander
1050
V. Ash
1362, 1363
V. Goldsborough
944
V. Hamilton
529
V. Minesinger
1179
V. Ohio
1192
V. Philadelphia
83
Pattrick v. Grant
939
Paty V. Martin
441
Paul V. Berry
259
V. Chouteau
1035
V. Durborow
142
u. Meek
74
ti. Owings
946
u. Roy
800
V. Stackhouse
869
Paulette v. Brown
412
Paulin V. Howser
1090
PauU V. Oliphant
986
V. Padelford
334
I'. Simpson
862
Paulton V. Paulton
138
Pawling V. Bird
802
Paxons's Appeal
833
Paxton V. Boyce
366
V. Douglass
533
V. Popham
931
V. Price
210
TABLE OF CASES.
Payne.u. Craft
1167
Pecker v. Hoit
108S
'». Elyes
469
Peckham v. Barker
909
V. Gray
464
V. Potter
1163 a
V. Hughes
977
Peddicord v. Hill
766
V. Lowell
40
Pedicaris v. Eoad Co.
294
V. McKinney
740
Pedler v. Paige
728
V. Kogers
1207
Pedley v. Dodds
1005
V. E. K.
1090
V. Wellesley
428
V. Treadwell
338
Peeblet v. Horton
1019
Paynes v. Coles
819
Peek V. N. Staffords.
873
Paysant v. Ware
939, 946
Peel, in re
936, 993
Payson v. Everett
674
Peeples v. Smith
72
Pea V. Pea
430
Peers v. Carter
830
Peabody v. Brown
953
V. Davis
920, 936
V. Hewett
1101,1157
1168
Pegg V. Wsrford
392
». Speyers
873, 901
Peirce v. Pendar
1323
V. Tarbell
1035
Peisch V. Dickson 93£
, 956, 961 a
Peaceable v. Keep
423
Pejobscot V. Eansom
1353, 1354
V. Watson
237, 1156,
1157
Pelamourges v. Clark
436
Peacher v. Strauss
956
Pelile 0. Stoddart
754
Peacock v. Bell
324
Pell V. BalJ
1280
V. Harris
261,
1153
Pelletreau v. Jackson
727
V. Monk
1044, 1046,
1048
Pelton V. Mott
775
Peake v. Stout
508
V. Platner
1308
Pearce v. Mix
1157
Pelzer v. Cranston
681
V. Whale
1315
Pember v. Mathers
487
Pearcy v. Dicker
696
Peiiibroke v. Allenstown
525
Pearl v. Allen
292
Pembroke, in re
890
V. Wellman
1112
Pemigewassett Bank v. Eogei
s U75
Pearsall v. McCartney
838
Penarth E. E. v. Cardifif
Water-
Pearse v. Coaker
779
works
753
V. Pearse
576, 583
Pendery v. Ins. Co.
60
Pearson v. Howey
83
Pendexter v. Carleton
63
V. Le Maitre
27,32
Pendleton v. Com.
160
V. Pearson
210, 888
V. Empire Co.
549, 555
V. Shaw
335
V. Eooth
1169
V. Turner
490
Pendock v. Mackinder
397
V. Wightman
739
Pendrell v. Pendrell
215
Pearsons, in re
888
Penn a, Edwards
1336, 1362
Pease v. AUis
723
V. Tollison
807
V. Jenkins
226
Pennel v. Wayant
118
V. Pease
951,
1061
Pennell v. Meyer
828 a, 1105
V. Peck
289
Penney v. Goode
756
V. Phelps
1199,1199 a
V. Fellows
1035
V. Smith
64
,988
Penniman v. Hartshorn
. 873
V. Whitton
800
Pennington v. Gibson
287
Peaslee v. Gee
945
V. Yell
1226
V, Eobbins
402
Pennoyer v. David
1196
Peat's case
426
Penns. Canal Co. v. Betts
920
Peck V. Beckwith
1060
Penns. Ins. Co. v. Smith
1064, 1365
V, Chapman
357
Penns. E. R. ». Books 1174
, 1180, 1182
0. Clark
111
, 115
V. Henderson
509, 513,
V. Detroit
1175
1081
V. Farrington
115
V. Hickman
712
V. Hunter
357
V. Pennock
815
V. Land
106
V. Plank Road
1170,1180
V. Lane
519
V. Sharp
932
V. Lusk
1194
V. Stranahan
43
V. Minot
1133
V. Weber
1255
V. Richmond
505
Penny v. Watts
562
V. Torke
63
Penny Pot Landing v. Phila.
669
V. Vandenberg
1049
Pennywit v. Kellogg
99,114,807
Peck, in re
1276
Penobscot E. R. v. Bartlett
311
741
TABLE OF CASES.
Penobscot E. R. r.- Weeks
795
People V. Highways
290
Penrose v. Griffith 1040. 1041, 1156
V. Holbrook
160
V. Trelawney
1352
V. Horton
432, 529
Pentriguinea Coal Co., in re
883
V. Humphrey
84,85
Pentzt;.' Stanton
951, 1061
V. Hurlburt
290, 601
People V. Abbott
563
V. Hurlbutt
741
V. Ah Fat
569
V. Jackson
558
V. Ah Wee
174
V. Jacobs
549
V. Amanacus
569
I'. Jenness
395
V. Anderson
923
V. John
319
V. Annis
565
V. Johnson
785
V. Atkinson
283
, 584, 588
V. Keith
572
V. Austin
561
V. Kelley
494, 540, 536
V. Bank
1318
V. Kerrains
441
V. Barrett
782
V. Kingsley
160
V. Bell
747
V. Lacoste
496
V. Bircham
640
V. Lambert
300, 305, 308
V. Blakeley
590
V. Lohman
539
V. Board
290
V. Mahoney
290
V. Bodine
404, 436
V. Manning
541
V. Boscowitoh
491
V. Marion
1265
V. Briggs
290
V. Mather 499, 500,
504, 533, 536,
V. Brotherton
439
538, 540
544, 563, 574
V. Brown
1143
V. Matteson
395
V. Calder
308, 310
V. McCann
452
V. Carroll
539
V. McCormack
84
V. Caryl
719
V. McCraney
421
V. Chenango Sup'rs
63
V. McCrea
1136
V. Christie
544
545, 604
V. McGarren
395
V. Cock
1315
V. McGee
399
V. Commissioners
290
V. McGungill
483
V. Coo^
120
V. McHenry
727
V. Cotta
516
V. McNair
398
V. Cunningham
1295
V. Mercein
423
V. Davis 261,
^62
565, 569
V. Miller
529, 600
V. De la Guerra
326
V. Jtontgomery
456
V. Denisou
643, 740
V. Morrigan
444, 544
V. Dennis
132
V. Murphy
180, 1103
e. Deviue 177,
551
555, 559
V. Murray
353
V. Devlin
290
V. Park
397
V. De Wolf
290
V. Pease
368, 482
V. Diaz
177
V. Pitcher
1194
V. Donovan
531
V. Pnrdy
V. Kathbun
290
V. Doyell
570
1265, 1269
V. Dyckman
377
V. Beagle
431, 478
V. Eastwood
451
511, 512
V. Rector 533,
565, 566, 569
V. Elyea
518
V. Reeder
837
V. Fair
49
V. Reinhardt
63, 541
V. Farrell
30
V. Robinson
339, 1077
V. Fernandez
434
V. Robles
551
V. Ktzpatrick
422
H. Russell
480
V. Francis
1253
V. Safford
549, 550
V. Fuller
1296
t>. Sanford
451, 513
V. Garbutt
49
V. Schwetzer
569
V. Garcia
1184,1302
V. Shea
369
V. Gates
597, 697
1). SheriflF
590
V. Gay
569
V. Snyder
967, 1053
V. Gonzales
346
439, 443
V. Spooner
713,718
V. Graham
504
V. Stout
606
V. Green
191, 1154
V. Strong
412
V. Herrick
397, 541
V. Thomas
48.3
V. Hessing
1226
V. Throop
746
V. Hewitt
712, 718
V. Townsend
792
742
TABLE OF CASES.
People I). Treadwell
V. Trim
V. Tyler
V. Vernon
V. Warren
I). Whipple
V, White
V. Williams
u. Young
V. Yslas
V. Zeyst
294
1204
565
259
737
397
49, 56
266, 268
601
562
641
Peoria M. & T. Ins. Co. v. Hall 1172
Peoria R. E. v. Neill 690
Pepin V. Lachenmeyer 807
Pepoon V. Jenkins 98
Pepper v. Barnett 707
Peppiatt V. Smith 490
Peppinger v. Low 262
Peques v. Mosby 1028
Perain v. Noyes 1301
Perchard v. Tiudall 1212
Percival v. Caney 1103, 1105
V. Nansom 227, 239, 247
Peiine v. Swaim 177
Perkins v. Bard 141
V. Barnes 1165
V. Cady 1362
V. Catlin 1059
V. Hadsell 909
V. Hart 1140
V. Hitchcock 486
V. Ins. Co. 120, 436
V. Moore 782, 840
V. Parker 782
V. People 1291
V. Prout 1301
V. R. E. 268, 441, 452, 1090
V. State 601
V. Vaughan 32, 259
V. Walker 64, 758, 785, 988
V. Young 936, 1014
Perley v. R. E. 1294
Perren v. Monmouthshire R. Co. 1115
Perrie v. Nuttall 1085
Perrin v. Broadwell 977
V. Keen 1362
Perrine v. Cheeseman 920, 936
Perring r. Hone 626
Perry's case 391, 395
Perry t>. Banks 1132
V. Breed 554
V. Gibson 550
!>. Grares 1199 a
V. Hill 1015
V. Lewis 779
V. Massey 549
V. May 106
V. Meddowcroft 797
V. Roberts ■ 151
V. Simpson Co. 1110
V. Smith 977, 1044, 1587
V. Newton 713
V. Whitney 423
Ferryman v. State
828
Person v. Pardee
389
Persons v. Jones
839
V. McKibben
356
Persse v. Persse
389
V. Willett
482, 508
Perth Peerage 220, 306, 653, 654
Peter v. Beverly 1363
Peterboro v. JaiFrey 446
Petermans v. Laws 118
Peters v. Ins. Co. 814
V. Jones 856, 1143
Peterson, ex parte 324
Peterson v. Grover 920, 1021
V. Mayor 694
V. Morgan 56
V. State 391, 400, 507
V. Taylor 63
Petrie v. Clark 1060
V. Howe 431, 432
V. Nuttall 760, 763, 776
V. Rose 47
Pettibone v. Derringer 872, 1127
V. Roberts 1044
Pettit V. Shephard 942
Peyroux v. Howard 339
Peyton v. McDermott 112
Pfau V. Lorain 771
Pfiel V. Vanbatenberg 1362
Pfotzer V. Mullaney 668
Phares u. Barber 1108
Phebew. Quillin 66
Phelan v. Gardner 760, 931
V. Moss 626
Phelin v. Kenderdine 533
Phelps V. Bostwick 940
V. Brewer 818
V. Conant 1287
V. Cutler 1319
V. Hartwell 353, 1252
V. Morrison 1049
V. Prew 150, 585
V. Eatcliffe 1319
V. Seely " 1017, 1035
V. Town 507
Phene v. Popplewell 859
Phene's Trusts, in re 1274, 1276, 1280
Phettiplace v. Sayles 574
Phil. Bk. V, Officer 238, 1 131
Phil. E. R. V. Howard 177, 930, 1067
V. Spearen 180
V. Stimpson 257, 429, 1318
Phil. & Read. R. R. u. Yeiser 360, 361
Philips V. Bury 816
V. Morrison 1318
Philipson v. Chase 74, 162
V. Hayter 1257
Phillimore v. Barry 872, 873
Phillips V. Barker 998
V. Beene 135
V. Blair 1142
V. Clagett 1202
V. Coffee 694
743
TABLE OF CASES.
Phillips V. Cole - 227, 1156, 1163 a
V. Costley 63, 1050
V. Croft 1032
V. Crutchley 1322
V. Elwell 545, 833
V. Evans 800, 1302
V. Ford 353
V. Hulsiger 1032
V. Hunnewell 875
V. Hunter 801
V. Jamison 986
V. Kelly 268
V. Kingfield 562, 565, 568
V. Lewin 490
V. McCombs 992
V. Preston 1027, 1059
V. Purington 147
V. Eouth 594
V. Scott 1323
V. Starr 452
V. Tapper 1140
V. Terry — 444
0. Thompson 856, 909
V. Ward 772
Phillipson v. Egremont 797
Philpot V. Taylor 1205
Phllpott V. Eliott 1021
Phipps V. Ackers 1242
Phojnix V. Ins. Co. 1164
Phoenix Bk. v. Philip 719
Phyfe V. Warden 931
Physick's Est. 84
Pickard v. Bailey 110, 142, 305
V. Sears 1085, 1142, 1143
Pickering v. Dowson 929
V. Noyes 537, 593, 743, 992,
1217, 1257
V. Reynolds 1156, 1157
V. Stamford 1348
Pickett V. Packham 1284
Pickler v. State 1018
Picton's case 308, 664
Pidcock t). Potter 512
Fieri!. Duff 1165,1166,1175,1199
Pierce w. Andrews 1143
V. Bank 133
V. Brew 1048
V. Cloud 1352
!). Faunce 1165
V. Goldsberry 1136
V. Gray 115
V, Hasbrouck 1215
V. McConnell 1200
V. McKeehan 1157
V. Newton 565
V. Northay 712
V. Paine 883
V. Perkins 1184
V. Kobinson 1031
V. Wood 1196
V. Woodward 902, 928, 1027
Piers V. Piers 84, 1297
Flerson v. Baird 286
744
Pierson v. Hoag
438, 666
V. Hutchinson
149
V. McCahill
1019
w. Eeed
120
V. Steartz
589
Pigots' case
622
Pigott V. Eastern Counties E. E. Co. 360
;;. E. E. 43
Pike V. Balch 868
V. Emerson 1184
V. Fay 938, 942
V. Hayes 1156
V. Morey 910
V. Nicholas 464
V. State 512
V. Wiggin 1077
Pike's case 398
Pillow V. Eoberts 693
Pillsbury v. Locke 682
V. Moore 1350
Pilmer v. Bank 1014, 1058
V. Branch Bank 936
Pirn V. Curell 187, 200, 794
Pindar v. Seaman 744, 750
Pingry v. Walkins 956
Pinkerton v. Bailey 979
Pinner t). Pinner 1160,1167
Pinney v. Andrus 516
V. Thompson 942
Pinnix v. McAdoo 1170, 1178, 1180, 1183
Pipe V. Fulcher 668, 669
Piper V. Eichardsou 785
V. Sloneker 837
V. True 939, 946
Pipher v. Lodge 383
Pitcher v. Hennessey 1019, 1028
V. King 104
V. Patrick 1363
Pitkin V. Noyes 867
Pitman v. Woodbury 873
Pitney v. Leonard 632
Pitt V. Berkshire Ins. Co. 1365
V. Coomes 389
V. Ins. Co. 1064
Pitton V. Walter 824, 831
Pitts V. Beckett 75
V. Gilliam , 837
V. Temple 732
V. Wilder 1157
Pittsburg V. Clarke 661
V. O'NeiU 965
Pittsburg Ins. Co. v. Dravo 965
Pittsburg E. E. v. Andrews 551
V. Bamsey 1302, 1305
V. Eose 357
V. Ruby 56
V. Theobald 1180
Pittsfield V. Barnstead 65, 135, 640
Planch^ V. Fletcher . 961
Plank Eoad v. Arndt 1068
V. Bruce 1318, 1354
«i. Wetsel 624, 632
Plant V. Condit 931
TABLE OF CASES.
Plant 0. Taylor 207, 208
Planter's Bk. v. Borland 77
V. George 537
V. Willis 724
Planter's Ins. Co. v. Deford 1026
Plate VI R. R. 792
Piatt V. Haner 90, 135
V. Hedge 1044
V. Hibbard 363
Plaxton V. Dare 146, 187, 194
Playne v. Scriveu 886
Pleasant t'. State 491, 533, 563
Pleasants v. Clements 775
V. Fant 1200
V. Pemberton 1064
Plenty v. West 892
Plimmerw. Sells 1217
Plimpton V, Chamberlain 1160
V. Curtis 883
Plowes V. Bossey 1299
Plumb V. Cattaraugus Mutual Ins.
Co. 1172
Plumer v. French 259, 619
Plummer v. Currier 1077
V. Harbut 822
V. Woodburne 801
Plunkett V. Cobbett 605
Plunkett's Est. 999
Poage V. State 397
Podmore v. Whatton 138
Poe V. Domec 468, 474
Pogson V. Thomas 1005
Pohl V. Young 490
Poindexter v. Cannon 937
V. Davis 533
Polk V. Coffin 444
Pollard V. Cocke 981
w. Lively 115
V. People 175
t;. R. R. 1180
V. Scott 668
V. Stanton 1061
Pollen w. Le Roy 41 5, 939, 1 0 1 4
PoUeys w. Ins. Co. 1180
Pollock V. Stables 1243, 1250
a. Stacy 857
V. Wilcox 129
Polstont). See 1102,1246
Pomeroy v. Ainsworth 314
V. Baddely 491
V. Bailey 1048, 1162
V. Golly 708
u. Rice 1362
V. Winship 863
Pontifex v. Bignold 1258, 1263
Pooli). Devers 415
K. Morris 237,1161,1199 a
1/. Pool 545
Poole «. Dicas 246,247,251
V. Foxwell 467
V. Gerrard 61
V. Gould 389
V. Perritt 538
Poole V. Richardson
451
, 512
V. Rogers
356
Pooley V. Goodwin
i313
v'. Harradine
952,
1061
Poorman u. Kilgore
864
V. Miller'
141, 17'
,288
Pope V. Andrews
1187
V. Askew
712
V, Devereux
1213
V. Dodson
1363
V. Machias Co.
514
V. Nickerson
962
V. O'Hara
1157
V. Welsh
53
Popple V. Cunison
138
Porter v. Allen
1165
V. BeriU
98
• V. Byrne
986
V. Cooper
824
V. Ferguson
1127
V. Johnson
320
V. Jones
1050
V. Judsou
233, 239, 24e
, 654
0. Nelson
837
V. Pequonnoc Manufacturing
Co. , 444, 507, 512
V. Porter 1058
V. Rea 1103 a
V. Robinson 767
V. Seller 47
u. State 64,491,988
V. Weston 356
V. Wilson 140, 147, 1192
Portmore v. Goring 743
Post V. Avery 464, 466
V. Smilie 785, 788
V. Vetter 1022
Posten V. Rassette 140
Postens V. Postens 1165
Postlethwait v. Frease 864, 909
Potez V. Glossop 1312
Potior V. Barclay 83, 152
Pott V. Todhunter 1046
Potteiger t). Huyett 1290
Potter V. Adams 81 1
V. Bissell 502
V. Chamberlain 431
V. Everett 1019, 1046
V. Hopkins 1015
V. Inhabitants of Ware 420
V. Marsh 431
V. McDowell 1156
V. Menasha 464
V. Rankin 380-
V. Sewall 1029
V. Titcomb 1360
V. Tyler 828, 833, 834
V. Ware 420
. V. Webb 47, 811
Potts V. Durant 197
u. Everhart 262,1102
V. House 451
Pouletw. Johnson 141, 151
745
TABLE OF CASES.
Poultney v. Ross
678
,685
Pound V. Wilson
549
Povall, ex parte
98
Powell V. Adams
689
V. Biddle
998
V. Bradbury
743
V. Dillon
870
V. Divett
622, 626
,627
V. Edmunds
922
V. Hendricks
726
V. Hodgetts
1204
V. Jessopp
864
V. Milbum
356
V. Olds
259
V. Rich
866
V. State
451
V. Thomas
1061
V. Waters
178
Powelton Coal Co. u. McShain 928, 931
Power V. Frick 714
V. Kent 1188
V. Whitmore 963
Powers V. Butler 798
V. Elmendorff 742, 746
V. Erick 719
V. Leach 559
V. McFerran 727, 729
V. Russell 629
b. State 551
Pralus V. Pacific Co. 640
Prater v. Frazier 77
V. Pritchard 490
Prather v. Johnson 120
0. Palmer 1285
V. Pritchard 523
V. Ross 961
Pratt V. Andrews 47, 51, 55, 1245
V. Battles 115
V. Delavan 429
V. King 100
V. Lamson 357
V. Langdon 357, 935
V. McCullough 1316
V. Patterson 177, 178
V. Richards 21
Preble v. Baldwin 1042
Prell V. McDonald 291, 293
Prentiss v. Holbrook 826
V. Roberts 569
V. Russ 931
V. Webster 377
Presbrey v. Old Colony Railroad 715
Presbytery of Auchterarder v. Kin-
noul 411
Preschbaker v. Feaman 1031
Prescott V. Canal 290, 295
V. Fisher 106
V. Hayes 226
V. Ward • 528
Prescott Bk. v. Caverly 1058, 1059
Preslar v. Stallworth 147, 823
Pressly v. Hunter 977
Preston v. Carr 577, 583, 593, 594
746
Preston v. Harvey 758
V. Mann 1143
V. Merceau 920
V. Peeke 986, 988
V. Robinson 116
Prestwick u. Poley 1186
Prettyman v. Walston 142
Prevost V. Gratz 357
Prew V. Donahue 520
Prewett «. Coopwood 1199
0. Land 1213
Price V. AUen 936, 1014
V. Bank 1165
V. Brown 1035
u. Dewhurst 803
V. Dyer 906, 1017, 1031, 1019
V. Earl of Torrington 238, 242, 726
V. Emerson 828
V. Harrison 742, 743, 744
V. Hickok 796
t>. HoUis 1190
V. Jovner 429
V. Karnes 1031
V. Littlewood 639
V. McGee 726
V. Page 339
V. Powell 357, 364, 444, 894, 1173
V. Price 896, 1284
V. Ramsay 1140
V. Reeves 1019
V. Richardson 869
... R. R. 1174,1180,1175
V. Tallman , 1265
U.Thornton 1174,1180
V. Torrington 238, 242, 726
Prichard v. Powell 187, 188
Pride v. Lunt 1050
Priest V. Wheeler 1017, 1019
Priesitley v. Femie 760
Primm v. Stewart 208, 1274
Primmer v. Claybaugh 431
Prince v. Blackburn 726
V. Prince 414, 1077, 1220
V. Samo 572, U08
V. Smith 678
V. Swett 620, 687
Pringle v. Dunn 1052
V. Phillips 682
V. Pringle 422, 1165
Prinsep & E. India Co. v. Dyce Som-
bre 1253, 1254
Printup V. Mitchell 259, 512, 909, 1077
Printz V. Cheney • 533
Prior V. Williams 1019
Pristwick v. Poley 1186
Pritchard v. Bagshawe 1091, 1190
V. Brown 1142
V. Draper 1196
0. Hicks 996
V. Hitchcock 770, 823
V. McOwen 686
V. Walker 1153, 1315
Pritchett V. Clark 802
TABLE OP CASES.
Pritchett v. Munroe
490
Qaennell v. Turner
1004, 1005
V. Smart
743
Quick V. Quick
139, 1008
Pritt V. Fairclough 240, 241
1243, 1330
Quilter v. Jones
658
Proctor V. Gilson
1050
V. Jorss
82
V. Jones
875
Quimby «. Buzzell
727
V. Lainson
178
V. MorriU
480,
482, 508, 1044
V. Terrill
487
V. Stebbins
1042. 1044
Proprietary v. Ealston
1100
Quinebaug Bk. v. Brewster ' 1258
Prosser v. Wagner
816
Quinn v. Butler
898
Prothro v. Seminary
663
V, Com.
982
V. Smith
1017
V. Quinn
776
Proudfoot V. Mountefiori
1170
V. State
549
Prov. V. Reed
1010
Quinsigamond Bank w. Hobbs 715,718
Providence v. Babcock
276
ProT. Ins. Co. v. Pennell
1365
Prov. Tool Co. V. Man. Co.
507
E.
Prowattaine v. Tindall
487
Prowse V. Shipping Co.
300, 1112
E. V. Abergwilly
208
Pruden v. Alden
129, 826
V. Adey
535
Pruitt V. Cox
569
a. Aickles
160, 639
Prussel V. Knowles
1090, 1127
V. Allen
1271
Pryor v. Coggin
896
V. Allison
1318
V, Moore
98
V. All Saints
218,
425, 432, 533,
V. Pryor
889
1308
Puckett V. Pope
808
u. Ambergate
751
V. State
1276
V. Araphlit
69
Pugh V. Cheseldine
868
V. Anderson
600
V. Good
864, 909
V. Antrobus
188
V. McCarty
32
V. Appleby
1138, 1139
, V. Robinson
324
V. Arundel
.
1264
PuUen V. Hutchinson
689, 723
V, Ashburton
1313
Pulley V. Hilton
639
V. Avery
590
Pulliam K. Pensoneau
599
V. Babb
746
Pulsford V. Richards
931, 1145
V. Bailey
1240
Pnrcell v. Burns
946
V. Basingstoke
1091
V. McNamara
108, 776
V. Bathwick
421
, 424, 425, 432
V. Miner
909, 910
V. Bedfordshire
185, 188
Purdy V. Com'rs
290
V. Benson 108,
140,
706, 708, 1303
V. People
290
V. Berenger
502
Purinton v. R. E.
921
V. Bierlow
200
Purkiss V. Benson
262, 1102
V. Birch
824
Purner v. Piercy
866
V. Bird
64, 785, 988
Pusey V. Wright
353
V. Birmingham
226,
228, 232, 424,
Putnam v. Bond
942, 945
782, 115B, 1157
u. GoodaU
60, 73, 685
V. Bishop of Ely
746
V. Sullivan
1170
V. Blake
1206
Pye V. Bntterfield
490
V. Blakemore
769
Pyer v. Carter
1346
V. Blandy
268
Pym V. Campbell
927
V. Bleasdale
28
I). Lockycr
Pyne, in re
974
V. Bliss
186, 187, 237
379
V. Bloomsbury
1308
V. Bolton
813
V. Borrett
1081
Q.
V. Boston
V. Boucher
401
32
Quarles v. Littlepage 1077,
1089, 1140
V, Bowen
1305
V. Waldron •
420
V. Boyes
535
536, 538, 540
Quartermau v. Cox
492
V. Braintree
150, 172
Quay V. Ins. Co.
118
u. Bramley
421, 424
Queen v. Brown & Hedley
565
V. Brampton
1297
Queen Caroline's case 387, 396. 551, 561.
V. Brazier
398, 399
572,
1108, 1200
V. Brecknock & Aberg Can. Co. 750
Queener v. Morrow
570, 1217
V. Brewer
747
590
TABLE OF OASES.
E. V. Briggs
21, 28, 37
E. a. Esop
1240
V. Bristol & Exeter Ey.
Co. 750
V. Exeter 226,
1156, 1157, 1353
V. Broadhempston
1318, 1355
B. Fairie
792
V. Brooke
550
V. Farley
590
V. Brown
335, 562, 565
V. Farringdon
732
V. Browne
776, 825, SSI
V. Fitzpaine
61, 648
V. Buckinghamshire
751,813
V. Flahei-ty
84, 85, 1096
V. Budd
1284, 1285
V. Fontaine Moreau
776, 783, 800,
V. Bardett
1226, 1266
838, 1110
V. Burridge
339
V. Ford
397
V. Buttery
811, 1154
V. Fordingbridge
150, 1317
V. Buttle
540
V. Foster
30, 263
V. Cadogan
751
V. Francis
30, 452
V. Cambridge
324
V. Franklin
637, 638
V, Carlisle
1303
V. Friend
533
V. Castell Careinlon
397
V. Frost
393
V. Castle Morton
78
V. Fuller
30
V. Castletou
129, 150
V. Fursey
21, 82, 677
V. Castro
717
V. Garbett
525, 538, 539
V. Catesby
645, 1318
V. Gardner
671
V. Chapman
500, 730
V. Gsizard
600
V. Charlesworth
494, 540
V. Gibbons
593
V. Chawton
924
V. Giles
1081
V. Cheedle
923
u. Gilham
596
V. Chester
795
V. Gisburn
492
V. Christian
94, 776
V. Good
1240
V. Christopher
180
V. Goodwin
1315
V. Clapham
655
V. Gordon 148, 258, 629, 824, 1315
V. Clark
782
V. Grant
397
V. Clarke 49
, 50, 569, 1199
V. Gray
38, 1313
V. Cliviger
425, 432
V. Greene
635
V. Cockburn
179
V. Griffin
597
V. Cooper
32, 1123, 1154
V. Griswell
177
V. Cope
664
V. Groombridge
1271
V. Coppall
61
u. Gruudon
816
V. Cornelius
751
V. Gully
322
V. Cotton
188, 800
V. Guttridge
178, 268
V. Coyle 1138, 1184, 1186
V. Hains
114, 824
V. Cradock
84
V. Hall
1170
V. Creamer
84
V. Halliday
425, 432
V. Crouch
707, 722
V. Hamp
155
V. Culpepper
142
V. Hankins
155
V. Davis
397, 639, 796
V. Harborne
1277
V. De Berenger
338, 635
V. Hardwick 1194,
1204, 1213, 1274,
0. Denio
150
1275
V. Dent
306
u. Hardy
604, 1206
V. Dilmore
177
V. Harringworth
725
V. Doran
92
V. Harris
30
V. Downham
160
V. Hartington
758
V. Drury
781
V. Haslingfield
824
V. Dulwich College
941
V. Haughtou
763
V. Duncombe
525
V. Hawes
84, 655
V. East. Cos. Ey. Co.
750
V. Hawkins
356
V. Kast Fairley
148
V. Haworth
143, 160
V. Edmonds
177, 179
V. Hay
597, 1280
V, Egertou
21
V. Hazy
72, 706
V. Eldershaw
1271
V. Heath
602
V. Elkins
833
V. Hebden
769
t). Ellicombo
92
V. Hedges
522
V. Ellis
21
V. Hendon
229
V. Elworthy
160
V. Herstmonceaux
883
V. Eriswell
188, 208
V. Hevey
1154
17. Erith
206, 208
V. Heydon
751
748
TABLE OF CASES.
V. HicHing
81fi
E. (7. Marshall
179
V. Higginson
452
V. Martin
56, 346, 561, 639
W.Hill
402, 403, 1355
V. Maurice
339
V. Hinckley.
145, 1318
V. Mayer
1240
V. Hincks
397
V. McClelland
43
V. Hoatson
1240
V. McDonald
94
i;. Hodgson
30, 541
V. Merchant Tailors' to. 746
11. Hodnett
980 a
V. Merthyr Tidvil
61,78
V. Hogg
179
V. MiUer
322
V. Holmes
398, 542, 561
V. Milnes
108
V. Holt
33, 671
V. Milton
668
V. Home Tooke
1154
V. Mobbs
29
V. Hostmen of Newcastle 746
V. Morris
108, 1308
V. Hough
30
V. Mortlock
162
V. Howard
1315
V. Morton
150
v. Hughes
639
V. Mothersell
639, 661
V. Halcott
1308
V. Murphy
491, 569
V. Hull
926
V. Myttou
187, 194, 195
V. Hulme
540
V. Neverthong
198
V. Hunt
81, 264
V. Neville
1077
V. Hunter
585, 1081
V. Newman
491
V. Hurley
72, 140, 706
V. Newton
84, 1096, 1315
V. Huston
407
V. Nicholas
399, 400
V. Ilea
776
V. North Bedbum
146
V. Isle of Ely
339
V. North' Petherton
604, 655
V. Jarvis
1266
V. O'ConneU 61, 81, 519, 604, 1205
V. Jeffries
282
V. O'Connor
1206
V. Johnson 129
141, 268, 979, 1325
V. Oiford
451
V. JoUffe
177, 180
V. Olney
923
V. Jones 336,
337,421,590, 1154,
V. Orton 9, 11, IC
, 14, 24, 72, 254,
1275, 1295
409
511; 1273, 1274,
V. Jordan
1271
1277, 1283, 1287
V. Justices
1242
V. Olulton
1284
V. KenUworth
150, 816
V. Overseers
1332
V. King
747
V. Owen
1271
V. Kingston, Duchess of 593, 606, 758,
«. Padstow
62
765, 776, 797
V. Page
986
V. Kingston upon
Hull 77
V. Pargeter
1294
V. Kinloch
405, 523
V. Parker
570
V. Kitson
92, 155
V. Pascoe
30
V. knoUys
290
V. Payne
422
V. Layton .
1253
V. Peace
1273
V. Ledbetter
177
V. Pearce
21
V, Lee
177, 958, 967
V. Peat
421, 424
V. Leigh
187, 794
V. Perkins
391, 398, 400
V. Leverson
589
V. Perranzabuloe
986
V. Levy
120
V. Phillips
1271
V. Lilleshall
1284
V. Phillpott
66, 524
V. Llanfaethly
150
V. Piddlehinton
144
V. Long Buckley
1303, 1313
V. Pitts
1296
K. Lower Heyford
229
V. Plumer
1154
V. Lnbbenham
655
V. Porey
87
V. Lucas
746
V. Powell
349, 401
K. Luffe
334, 608, 1298
V. Preston
1308
V, Lumley
1274, 1275
V. Price
1240
V. liyme Regis
V. Macclesfield
1302
V. Priddle
397
533
V. Pringle
335, 338
V. Madden
421, 426
V. Purnell
751
V. Maloney
540
V. Ramsbotham
66
V. Manning
1256
V. Ramsden
526
V. Mansfield
608, 1275, 1298
V. Rawden
61,78
V, Manwaring
77, 84, 87
V. Read
414
V. Marsh
601
V. Reading
608
749
TABLE OF CASES.
R. w.
V. Eees
1315
V. Keily
825
V. Khoades
648
V, Richards
452, 507
V. Richardson
39, 604
V. Eishworth
203, 216
V. Roberts
414
V. Robinson
32, 824, 825
V. Rockwood
562
V. Roddam
384
V, Roebuck
30
V. Rooney
21, 28, 37
V. Rosser
602
V. Rowton
49,56
V. Ryton
198
V. Saffron HiU
147, 150
V. Salisbury
863
V. Savage
179
V. Scaife ,
178
V. Scammonden
1042, 1047
V. Searle
451
V. Serjeant
421, 422, 426
V. Serva
387, 396
V. Sewell
120
V. Shaw
776
V. Sheen
782
V. Shellard
555
V. SheUey
746, 751
V. Shipley
1263
V. Simmonsto
84, 1096
V. Simpson
339
V. Skeen
540
V. Slaney
533
V. Sleigh
717
V. Sloman
383
V. Smith 177, 422,
824, 825, 831,
1271
V. Sonrton
608
V. Spencer
108
V. Staffordshire
745
V. Stainforth 1308, 1318, 1355
V. Stannard
49
V. St. Anne
781
V. Steel
407
V. St. George
572
V. St. Giles
726
V. St. Martin's 77,
518, 520, 522,
525
V. St. Marylebone
1317
V. St. Mary Magdalen
1355
V. St. Mary's Warwick
240
V. St. Paul's Covent Garden 693
u. Stoke-upou-Trent
961 a, 969
V. Stokes
1253
V. Story
1081
V. Stourbridge
147
V. Stoveld
776
V. StoWe
1205
V. Strachan
540
V. Strand Board of Works 1339
V. Sutton 185, 187
286, 602, 635
V. Teal
397
760
R. V. Thring
824
V. Tooke
707, 825, 831
V. Totness
1308
V. Travannion
746
V. Travers
399, 401
V. Treble
624
V. Trustees
750
V. Tubbee
426
V. Turner 49, 108,
368,
1138, 1139
V. Twining
1275, 1277
V. U. of Cambridge
324
V. Upper Boddington
593
V. Upton Gray
645
V. Vandercomb
782
V. Verelst
1315
V. Vincent
254
V. Yoke
31,38
V. Wade
405
V. Wagstaff
155
V. Wakefield
421, 426
V. Wallace
1263
V. Ward
401, 824
V. Washbrook
795
V. Waters
776, 1305
V. Watson 92, 153, 281, 49«
, 502, 546,
559
, 604, 1154.
V. Wayertree
188
i;. Weaver
655
V. Webb
1284
V. Wenham
120
V. Whistou
1303,
1313, 1355
V. White
396, 400, 405
V. Whitechnrch
645
V. Whitehead
393, 402, 403
V. Whitney
1303
V. Wick
986
V. Wickham
923
V. Wick St. Lawrence 816
V. Williams 177, 399, 432, 444, 445,
718
V. Wilshaw 179
V. Wilts. & Berks. Can. Co. 750
V. Withers
581
V. Woods
572
V. Woodward
278, 282
V. Wooldale
1008
V. Worcester
425
V. Worth
228, 230, 243
V. Wycherly
346
V. Wylde
90
V. Yeovely
824, 986
V, Yewin
561
Raab v. Ulrich
142
Rabaud v. D'Wolf
870
Rabb V. Graham
1009
Raborg v. Hammond
66, 223
Rabshul v. Lack
1042
Racine Bank v. Keep
1058
Radcliff V. Ins. Co.
638, 814
EadclifFe v. Fursman
583
Radford v. Mcintosh
1153, 1317
Raert v. Scroggins
958
Eaffbnsberger v. CuUison
1022
TABLE OF CASES.
Eagan v. Simpson
1031
Eankin v. God4ard
802, 808
Baggett V. Musgrave
1131, 1241
V. Eankin
451, 529
Bagland v. Wigware
542
V. Simpson
909
Eaiford !'. French
265, 1180
Eann v. Hughes
853
Eaikes v. Todd
869
Eansom v. Mack
1323
Eailroad v. Yerger
360
Rape V. Heaton •
288, 314
Railroad Bank v. Evans
98
V. Westcott
690
Eailroad Company
336, 680
Raper v. Birbeck
627
Eailroad Co. v. Dubois
1144
Eaphelye v. Prinde
770, 780
V. Gladmon
357, 361
Eapp V. Latham
1194
V. Hickman
1068
Bash V. Whitney
147
V. Quick
96
Eashall v. Ford
1069, 1170
V. Stewart
1068
V. Wales
429
Eainbolt v. Eddy
632
EatcliflF W.Allison
940
Eaines v. Periyman
61
EatclifFs V. Gary
185
V. Phillips
727
Eathbun v. Rathbun
1050
Eaisler v. Springer
1204
V. Eoss
63, 563
Eajah of Coorg v. East India Co. 605,
Eavee v. Farmer
788, 800
,
754
Raveuseroft v. Jones
974
Eake v. Pope 64,
785, 883, 988
Eavisies v. Alston
741
Ralph V. Brown
130
Eawles v. James
446, 512
V. R. E.
415
Rawlings v. Fisher
1060
V. Stuart
875
Rawlins v. Desboro
356, 507
Ealston v. Miller
185
V. Eickards
238, 241, 898
V. Telfair
992
V. Turner
854, 855
Eamadge v. Eyan
509
Rawlinson v. Clarke
1018
Eambert v. Cohen
77, 5i22
V. Oriel
772
Rambler v. Choat
838
Rawls V. Lis. Do.
436, 507
V. Tryon
451
V. State
782
Ramsbotham v. Senior
585, 589
Rawson v. Adams
1125
Eamsbottom v. Buckhurst
1303
V. Bell
909
u. Mortley
77
V. Haigh
259, 261
V. Phelps
1082
Eawstone v. Gandell
1202, 1207
V. Tunbridge
77, 78
Bay V. Bell 545, 658,
566, 1082, 1088
Eamsden v. Dyson
1147, 1148
V. Clemens
823
Ramsdill v. Wentworth
1008
V. Donnell
417
Ramsey v. McCauley ^
1289
V. Porter
123
V. McCue
629
V. Eowley
1303
Ramuz V. Crowe
149
V. State
510
Rancliffe v. Parkyns
199
V. Townsend
980
Rand v. Dodge
227, 1163 6
Eayburn v. Elrod
661
V. Mather
902'
Eaymond v. Coffey
189
V. Newton
528
V. Eaymond
014, 1050, 105k
Randall v. Kehlor
967
V. Sellick
1026
V. Lynch
725
V. Wheeler
1112
V. McLaughlin
1346
Eayne v. Taylor
.1140
V. Morgan
882, 1034
Eayner v. Ritson
594, 742, 743
V. Eich
860
Raynes v. Bennett 21
, 427, 431, 1292
V, Turner
1015
Raynham v. Canton
98
V. Van Vechten
693
Raynor v. Lyons
1032
Randegger v. Ehrhardt
Eandel i;. Ely
1165, 1166
V. Norton
516
1140
V. Wilson
861
Eandell v. McLaughlin
1346
Rea V. Missouri
481, 506, 1136
Randolph v. Adams
444
Read v. Barker
444
V. Bayne
811, 1278
V. Edwards
1295
V. Easton
1284, 1285
V. Gamble
78, 159
V. Gordon
194, 197
V. Goodyear
1332
V. Loughlin
713
V. Passer
84
V. Perry
1022
V. Staton
135
V. Woodstock
68
V. Sutton
826
Rangeley v. Spring
Ranger v. B. E.
Rankin v. Crow
1148
Reader v. Kingham
880
1170
Reading v. Mullen
115
140, 147
Ready v. Highland Mary
1180
751
TABLE OF CASES.
Eeady v. Scott 1302
Eeagan v. Grim 1199 a
Real, in re 63, 567, 823
Real V. People 65, 451, 537, 538, 541,
544, 567
Eeamer v. Nesmith 942
Eearden v. Minter 736
Eearich v. Swinehart 1019
Eeaiime v. Chambers 732
Ee Bahia & Francisco Ey. Co. v. Trit-
ten 1147
Eebstock v. Eebstock 801
Eector v. Eector 153
Eedding v. McCubbin 185
V. Wilka 882
Eedford v. Birley 254
V. Peggy 714
Eedgrave v. Redgrare f 83, 424, 1297
Redman v. Gery 237
V. Gould 97
V. Green 141
V. Redman 468
Reed v. Batchelder 1272
V. Brookman 1348, 1349
V. Deere 62
V. Dick 265, 1173, 1181
V. Bickej 131, 136, 1265
V. Douthit 930
V. Ellis 942
V. Evans 869
V. Express Co. 516, 520
V. Gage 1273
V. Goodyear 1349, 1352
V. Jackson 187, 188, 200, 794,
1303, 1307
V. James 550
V. Jones 519
V. King 549
0. Lamb 639
V. Noxon 366
V. Passer 653
V. Pelletier 1213
V. Phillips 1365
V. Reed 178, 466, 864, 1360, 1361,
1364
V. R. R. 262, 1316
V. Scituate 120
V. Shenck 942, 945
V. Sturtevant 472
Reedy v. Scott 1354
V. Smith 909
Reel V. Elder 808
V. Reel 1011
Rees, in re 888, 1314
Rees V. Jackson 699
V. Lawless 838
0. Livingstone 259, 393
V. Lloyd 1352
V. Stille 1252
v. Walters 195, 769
[v. Williams 728
Eeese v. Harris 315
V. Reese 1116
752
Reese v. Wyman 1019
Reeve v. Bird 860
V. Ins. Co. 357
V. Whitmore 1088, 1103
Reeves v. Bass 1031
V. Herr 429, 431
V. Lindsay 888
V. Poindexter 415
Reffeli V. EeffeU 977
Reformed Church v. Brown 788, 792
Reformed Dutch Church v. Ten
Eyck 622
Regan ». Regan 63
Ee Gregory's Settlt. & WiEs 999
Reichart B. Castator 1167
Reid u. Batte 61,78
V. Colcock 155
V. Coleman 742, 444
V. Dickons 1114
V. Hoskins 1170
V. Langlois 756
V. Roid 563, 1011
V. State 707
Ecidpath's case 1324
Reilly v. Cavanagh 63
• V. Fitzgerald 214, 810
Reimers v. Druce 803
Reinboth v. Zerbe 111
Reinhardt v. Evans 466
Reis V. Hellman 698, 1124
Reitenbach v. Reitenbach 1166
Reitenbaugh v. Ludwick 1019
Rembert v. Brown 616
Remick v. Sandford 870, 875
Eemmett v. Lawrence 1155
Renard v. Sampson 1014, 1015
Rennell v. Kimball 927, 930, 1026
Renner v. Bank 90, 129, 135, 137, 969
Renshaw v. Gans 931, 1019, 1023, 1026
w. The Pawnee 1162
Renwick u. Renwick 1050,1156
Resp V. Gibbs 541
Resseguie r. Mason 466
Reuss V. Picksey 617, 872, 873
Revel V. State 1265, 1269
Revis V. Smith 497
Rew V. Hutchins 21, 490
Rewalt V. Ulrich 998
Reyburn v. Belotti 708
Reynell v. Sprye 754
Reyner v. Hall 1064, 1065
Reynolds v. Fenton 803
V. Hewett 909
V. Howell 764, 797
V. Insurance Co. 940
V. Jourdan 151, 961
V. Longenberger 210
V. Lounsbury 391
V. Magness 923
V. Slanning 1090
V. Nelson 1302
V. Quattlcbum 141
V. Roebuck 800, 1191
TABLE OF CASES.
Reynolds v. Rowley
1180
Richardson v. Emery
684
V. Sprye
587, 590
V. Field
1213
V. Vilas
1042, 1046
V. George
357
Eeynoldson v. Perkins
1169
V. Gifford
855
Bheem v. Snodgrass
683
V. Hage
392
Rhine v. Robinson
180, 514
0. Hazelton
980
Bhoades v. Selin 78,
155, 156, 585
V. Hitchcock
513, 1212
Rhode V. Alley
979
V. Hooper
1026
V. Louthain
515
V. Hunter
795
Rhodes v. Bate
931 1248
V. Johnson
712
V. Castner
944
V. Mellish
639
V. Com.
529
V. Milburn
72
V. Farmer
1019, 1031
V. Newcomb
714
V. Rhodes
910
V. Palmer
23
V. Seibert
114
V. Reede
1064
Rhone v. Gale
1286
V. Roberts
412
Ricard v. Williams
1349, 1350
V. Smith
1318
Ricardo v. Garcias 785
801, 803, 805
V. Stewart
571
Rice V. Barrett
1142
V. Watson
924
V. Brown
795, 980
V. Williams
340
V. Bunco
1143
V. Woodbury
1031
u. Crow
1066
Richart v. Scott
1346
!/. Cunningham 555, 1101, 1307
Richey v. Ellis
751
V. Lowan
775
V. Garvey
75
V. Manley
901
Richie v. Bass
76, 1128
V. Montgomery
339, 340
Richley v. Farrell
129, 134
V. Poynter
135
Kichman v. State
538
V. Rice
587
Richmond v. Aiken
1226
V. Shook
338
V. Farquhar
956
Rice's Succession
287
V. Foote
909
Rich V. Eldredge
678, 1140
V. Hays
785
V. Husson
430, 478
Richmond R. R. v. Suead
949, 1050
V. Jones
439
Rickert v. Madeira
903
V. Rich
944
Ricketts v. Pendleton
123
Richard v. Brehm
84
V. Turquand
943
Richards v. Bassett
188
Ricord v. Jones
698
V. Bluck
1249, 1312
Riddle v. Backus
883
V. Doe
1070
V. Dixon
1168
V. Elwell
1352
Riddlehover v. Kinard
1352
V. Gogarty
228
Rideout's Trusts
431,464,608
V. Johnston
1083
Rideout v. Newton
707, 1090
V. Judd
490
Rider v. Ins. Co.
509
V. Kountze
1248
Ridgely v. Johnson
733
V. Lewis
145, 625
Eidgway v. Bank
238, 1131
V. Millard
1035
V. Darwin
1109
V. Morgan
1139
V. Ewbank
356, 357
V. Muraford
895, 899
V. Wharton
872, 901
V. Porter
872
Ridley v. Gyde
261
V. Richards 53,
509, 863, 1279
V. McNairy
909
V. Rose
1346
V. Ridley
417,883
V, Schlegelmich
946
Eiesz's Appeal
856
V. Skipp
726
Rigg V. Curgenven
84
V. Sweetland
1121
Rigge V. Burbridge
1117
Richardson v. Anderson
127
Riggin V. Collier
340
V. Boston
782, 792
Riggins V. Brown
180, 509, 514
V. Boyntou
1030
Riggs V. Myers
1002
I). Brackett
466
V. Tayloe
132, 137, 153
u. Carey
248
V. Weise
518
V. Comstock
920
Right V. Buckuell
1040
V, Crandell
880
V. Price
887
V. Dorman
678
Rigsbee v. Bowler
1022
V. Dorr
1357
Riker v. Hooper
787
V. EUett
977
Riley v. Butler
1124
VOL. II. 48
753
TABLE OF CASES.
Riley t). City of Brooklyn lOU
V. Farnsworth 870, 901
V. Gerrish ■ 1060
V. Minor 868
V. Packington 1315
V. Saydam 1217
Rindge v. Breck 685
Riney o. Vallandingham 570
Ring V. Billings 970
V. Foster 690
V. Huntington 674
Ringgold V. Galloway 147
Ringhouse v. Keever 223, 1274, 1277
Ringo V. Richardson 226, 1037
Rings V. Richardson 1035
Ripley v. Babcock 1253
V. Mason 1217
V. Paige 1089, 1108
V. Warren 324
Ripon V. Bittel 438, 665, 666
Ripple V. Ripple 99, 288
Risher v. The Frolic 1363
Rishton v. Nesbitt 208
V. Nisbett 389
Rison V. Cribbs 464
Ritchie v. Holbrooke 601
V. Kinney 60, 80, 662
Ritchy a. Martin 1163
Ritter v. Worth 1053
Rivara v. Ghio 403
Rivard v. Gardner 833
V. Walker 1165
Rivenburgh a. Rivenburgh 433
Rivereau v. St. Ament ISO
River Steamer Co., in re 1090
Rives V. Parmley 123
V. Thompson 156
Rixey v. Bayse 562
Roach V. Lehring 269
, V. State 432
Robb V. Hackley 570
Robbins u. Codman 1110
V. Fletcher 32
V. Richardson 1163 a
V. Robbins 433
V. Townsend 120, 1362
Robbinson t). R. R. 1175
Robert's Will 302, 308
Roberts v. AUott 540, 544
V. Barker 961
V. Bethell 1320
V. Bradshaw 162
V. Do.xen 80
V. Eddington 120
V. Fleming 441
V. Fonnereau 1170
V. Fortune 816
V. Gee 480
V. Graham 268
V. Guernsey 366
V. Haines 1344
V. Haskell 147
V. Johnson 439
754
Roberts v. Keaton
490
V. MuUenix
930
V. Opp
1035
V. Phillips
889
V. Pillow
1313
V. Roberts
900
V. Trawick
1012, 1088
V. Tucker
883
V. Ware
1035
V. Welch
887
V. Yarboro
477
Robertson v. Allen
726
V. Dunn
996
V. Ephraim
872, 1127
v. Evans
927, 930
V. French 924
, 925, 1336
V. Jackson
961, 963
V. Kennedy
740
V. Knapp
446
V. Lynch
72
V. Miller
714
V. Robertson
909
V. Smith
771
V. Stark
510, 512
V. Struth
804
V. Willoughby
1032
V. Wright
1140
Robeson v. Lewis
956
V. Nav. Co.
1183
V. Schuy. Nav. Co.
1092
Robinett v- Compton
819
Robins w. Swain
1021
Robinson v. Adams
1011
V. Allison
1363
V. Bealle
73
V. Blakely
208, 551
V. Brown
162
V. Chadwick
431
V. Com.
84
V. Cropsey
1032
V. Dana
403
V. Dauchy
303, 314
V. Ferguson
980
V. Gallier
1281
V. Gilman
289, 319
t!. Hodgson
1331
V. Hutchinson
1207
V. Jones
814
V. Kitchin
1151
V. Lane
785, 988
V. Litchfield
175
V. Magarity
920, 936
V. Markis
178
V. McNeill
901, 1028
V. Prescott
99
V. Pritzer
1051
V. Quarles
358
V. Rebel
881
V. Robinson
1160
V. R. R. 48, 56, 267, 359, 360,
510, 1090,1100,
1154,1174,
1180, 1182
V. Scotney 180,
1107, 1109
TABLE OF CASES.
Robinson J). Simons 103
V. Talmadge 427, 429
V. Trnll 377
V. V. S. 937, 961, 964, 971, 972
V. Vernon
931,
1019
V. Walton
1173
u. Williams
994
Robnett v. Ashlock
992
Eobson V. Alexander
1099,
1120
V. Atty. Gen.
20E
,210
V. Cooke
490
V. Crawley
490
V. Kemp
592,
1164
V. Rolls
266
Rocco V. Hackett
808
V. State
601
Rochelle v. Harrison
1217
Rochester v. Bk.
588
V. Toler
118
Rochester R. R. v. Endlong
443
Eockafellow v. Baker
1017
Eockford v. R. R.
1170
Rockhill V. Spraggs
1046
Rockville Co. v. Van Ness
366
Rockwell V. Jones
982
V. Taylor 261, 262,
U73,
1174,
1363
V. Tunnicliff
84
Rockwood V. Poundstone
549
Rodenbough v. Kosebury
684
Roderigas v. Savings Inst.
810
Rodgers v. Parker
1039
V. Phillips
876
V. Rodgers
895
V. State
324, 335
Rodick V. Gandell
756
Rodman v. Hoops 682, 688,
1360
Rodriguez v. Tadmire
17,53
Eodwell V. Phillips
866, 867
V. Redge
356
1245
Roe V. Abp. of York
859, 861
V. Davis
74
V. Day
1103
w. Doe
142
V. Harvey
1268
V. Hersey
986
V, Ireland
1348
V. Jerome
1163 a
V. Neal
208
V. Parker
185
V. Rawlings 208, 703, 732
V. Roe
706, 719
Roebke v. Andrews
1165
Roelker, ex parte
382
Roger V. Hoskins
690
Rogers V. Ackerman
447
V. Allen
199
V. Broadnax
262
V. Bullock
389
V. Colt
920
V. Crain
268
V. Custance
154
V. French
1007
Rogers v. Goodenough
900
V. Hadley
931, 951
V. Haines
766
V. Hall
1205
V. Higgins
760
V. Hoskins
156
V. Jones
1162
V. Kneeland
869, 967
V. Lewis
563
V. Libbey
988
V. Moore
569, 1156, 1160
w. Old
682
V. Payne
1018
V. Ritter
439, 709, 713
V. Spence
862
V. Turner '
749, 751
V. Walker
175, 1254
V. Weir
1149
V. Wood
185, 795
Rohan v. Hanson
1060
Rohr V. Kindt
864
Rohrahaoher v. Ware
931
Rohrer v. Morningstar
391
Rolf V. Dart
94
Rolfe V. Rolfe
1138
Rollins V. Clay brook
942
V. Dyer
1064, 1365
V. Strout
259
Rollwagen v. RoUwagen
1009
Rolt V. White
1147
Romayne v. Duane
47, 50
Romertze v. Bank
531, 552, 555
Rome R. E. v. Sullivan
514, 515
Eon V. Johnson
1323
Ronkendoi-ff v. Taylor
639
Rooke V. Ld. Kensington
1022
Eooker v. Perkins
1348
V. Eooker
1297
Eoop V. Clark
100
Eoos V. Barony
294
Root V. Fellowes
986
V. Hamilton
562
V. King
637
V. Shields
1119
V. Wood
555
Rosborough v. Hemphill
1008
Roscommon's Claim
1353
Rose V. Bryant
1135
V. Clark
• 83
V. Cunynghame
872, 1127
V. Gibbs
577
u. Himely
814
V. Klinger
760
V. Learned
1058
V, Leviris
160
V. Taunton 175,
932, 1042, 1049
u. West
1085, 1088
Roseboom v. Bellington
239
Eosenbaum v. Gunter
869
V. State
265, 559
Rosenbury v. Angell
1191
Rosenheim v. Ins. Co.
436
Rosenstock v. Tormey
175, 1127, 1183
755
TABLE OF CASES.
Rosenthal v. Eenick
1302
Rosenweig v. People
559
Ross V. Bruce
78, 159
V. Buhler
600
V. Close
1274, 1276
V. Catchall
638
V. Darby
. 1362, 1363
V. Davis
826
V. Demoss
420
V. Diinkard
366, 1301
V. Espy
1059
V. Gibbs 578
593, 594, 1582
V. Gould
1124
V. Hayne
532,574, 1162
V. Hunter
1245
V. Lapham
53
V. McJunkin
1360
V, Reddick
293
V. Reed
1318
V. Rhoads
248
V. R. R.
48
V. Winners
1216
Eosser v. Harris
909
Kotan V. Nichols
1197
Eothe V. R. R.
361
Rothschild V. Ins. Co.
1246
Rottman v. Wasson
868
Eouch V. E. R.
261, 266
Roundtree v. Tibbs
549
Rountree v. Jacob
1045
Eoutledge v. Hialop
779
Rowan v. Jebb
1121
V. Lamb
1318
V. Lytle
857, 859, 861
Eowbotham u. Wilson
1344
Eowe, ex parte
542
Eowe V. Bird
1295
V. Brenton 44, 60
112, 230, 232,
236,
827,833, 1105
V. Grenfel
298, 331
V. Hasland
1277
V. Howden
742
V. Parker
44
V. Smith
789
V. Wright
1064
Eowell V. Klein 833, 1170, 1180, 1183
V. Lowell
265, 268,441
V. Montville
1090, 1349
Eowen v. King
1088
Rowland v. Burton
611, 684
V. McGee
66
V. Rowland
175
Rowley v. Berrian
123
V. Bigelow
1070
V. Empire Ins. Co.
1172
V. Ins. Co.
1172
V. E. R.
667
Kowt V. Kile
712
Roy V. Townsend
982, 1036
Royal V. Sprinkle
1183
Royal Ex. Ass. v. Moore
951
Eoyall V. McKenzie
509
Eoyce v. Hurd
643
756
Roy. Ins. Co. v. Noble
432
Eoy. Mail St. Packet Co.
1018
Euan V. Perry
47
Eubber Co. v, Duncklee
1022
Rubey v. Culbertson
1336, 1362
Rncker v. Man. Co.
21
V. McNeely
111
V. Palsgrave
1114
Rudd V. Wright
229, 231
Rudden v. McDonald
887
Rudsill V. Slingerland
562
Rugely V. Goodloe
946
Eugg V. Hale
944,
V. Kingsmill
1318
Ruggles V. Ins. Co.
1170
V. Swan wick
1015
Ruiz V. Norton
920, 936
Ruloffi). People
346, 676
Eumford Chemical Works
V. Hecker 676
Rumsey v. People
441
V. Sargent
131, 1124
Runk V. Ten Eyek
122, 1175
Runyan v. Price
451, 555, 1252
Rush V. Peacock
154, 1199 a
V. Smith
550
Rushford v. HadBeld
962, 971
Rushin V. Shields
115
Rushtou's case
406
Eushworth v. Moore
123
Ensk V. Sowerwine
150
Eussel V. Kearney
99
V. Russel
863
V. Werntz
939, 942
Russell V. Barry
1017, 1019
V. Beckley
1323
V. Church
1064
V. Coffin
569, 739
V. Dickson
973
V. Doyle
1199 a
V. Frisbie
259, 1173
V. Jackson
580, 590, 591
V. Kelly
975
V. Marks
1313, 1353
V. Martin
282
V. Miller
1081
V. R. R.
359, 446, 522
V. Ryder
525
V. Schuyler
66
V. Smith
701
V. Smyth
801, 803
V. Southard
1031
V. St. Co.
359, 363, 971
V. Tunno
701, 739 a
V. Werntz
248
Rust V. Baker
1274
V. Boston Mill Co.
113, 733
V. Mansfield
1165
V. Mill Co.
198
V. Shackleford
485
Rutenberg v. Main
872, 873
Ruth V. Ford
431
Rutherford v. Bank
520
V. Crawford
63
TABLE OF CASES.
Entherford v, Geddes
832 1
Samson v. Blake
1156
V. Morris 451, 455, 992
Samuels v. Borrowscale
740
Rutland v. Hathorn
265
V. Griffith
557
Rutland, &c. R. R. i/. Crocker
1068
Sanborn v. Babcock
416
Ryall V. Hannam
999
V. Batchelder
932, 1017
Ryan, in re
888
V. Flagler
873
Ryan v. Dox
856
V. Lang
470
V. I'ollansbee
429
V. Long
1049
V. Goodwyn
1021
V. School District
641, 642,
V. Hall
901
644
V. Rand
1133
V. Southard
1027
V. Sams
1284
Sanchez v. People
550
V. Ward
1064
Sanders v. Gillespie
879
Ryburn v. Pryor
820
V. Sanders
129
Ryder v. Flanders
1148
V. St. Neot's Union 694
V. Hathaway
1352
Sanderson v. Bell
702
Ryerson v. Abington
549
V. Collman
1149
Ryerss v. Wheeler
992, 994
V. Graves
1025
Rynear w. Neilin
1017
V. Symonds
623
Ryves v. Braddell
90
Sandford v. Handy
1170, 1173
V. Wellington
66
V. Remington
592
Sandilands, in re
693, 739, 888
Sandilands v. Marck
1194
S.
Sands v, Robison
601
V. Shoemaker
1190
Sack V. Ford
1070
Sandys v. Hodgson
1155
Sackett v. Palmer
869
Sanford v. Chase
389
!;. Spencer
909
V. Howard
259, 1014
Sadler v. Anderson
1313, 1318
V. Nichols
833
V. Robins
801
V. R. R.
940, 946
V. Sadler
1252, 1253
V. Raikes
943
Sadlier v. Biggs
112, 941
V. Rawlings
958, 972
Safford v. Grout 511
, 829, 1289
V. Sanford
1302
V. McDonough
875
u. Shepard
446, 447
Sage V. Jones
1050
Sanger v. Upton
980
Sagee v. Thomas
1354
Sankey v. Reed
64, 991
Sainsbury v. Matthews
866
Saratoga & S. R. R. Co. v.
Rowe 1017
Saint Bartholomew Church v.
Bishop
Sargeant v. Pettibone
622, 684
Wood
981
V. Sargeant
1207
Sale V. Darragh
1015
V. Solberg
944
Salem v. Lynn
265
Sargent v. Adams
943, 945
Salem Bank v. Gloucester Bank 1077,
V. Ballard
1349, 1350
1087, 1095
V. Fitzpatrick
790
Sally V. Goodeu
1207
V. Hampden
578
V. Gunter
100
Sargeson v. Sealy
1254
Salmon v. Hoffman
1017
Sari V. Bourdillon
870, 871
V. Orser
175, 366
Sartorius v. State
491
Salmon Falls Co. v. Goddard
870, 873,
Sasscer ji. Bank
331, 335
901
Sasseen v. Clark
423
Salmons v. Davis
1101
Sasser v. Herring
1168
Saloy V. Leonard
135
Sate V. Abbey
307
Saltar v. Applegate
1315
Satterlee v. Bliss
619, 1103
Salte V. Thomas
639
Satterwhite v. Hicks
1167
Saltmarsh v. Bower
510, 839
Saul V. His Creditors
311, 1250
Saltonstall v. Riley
64, 986
Saulet V. Shepherd
1342
Sammons v. Halloway
697
Saunders v. Cramer
869
Sample v, Coulson
177, 833
V. Fuller
201, 208
V. Frost
578
V. Hendrix
429
V. Robb
670, 1168
V. McCarthy
519,1090,1184
V. Wynn
Sampson v. Overton
47,50
V. Mills
32
100
V. Topp
875
Sams V. Rand
977
Saunderson v. Jackson
873
V. Shield
116
V. Judge
757
1323
TABLE OF CASES.
Saunderson v. Nashua
552
Savage v. Brocksopp
487
V. Carroll
909
V. D'Wolf
725
V. Foster
909
V. Hutchinson
696
,700
V. O'Neil
314
Savercoo) v. Far well
1014
Savery v. Browning
690, 977
V. Spaulding
1165
Savings Bank v. Davis
693
Savoie v. Ignogoso
1220
Sawyer's case
397
Sawyer w. Birchmore
581
, 586
V. Boyle
792
,811
V. Eifert
49
V. Garcelon
96
V. Ins. Co.
814
V. jNIcLouth
1044
V. Sawyer
1220
V. Vories
1050
Saxon V. Whitaker
1252,
1253
Saxton V. Nimms
641
Saycr v. Glossop
655
Sayforth v. St. Louis
510
Sayre v. Durwood
262
V. Hughes
1035
V. Peck
936
V. Reynolds
629
Say ward v. Stevens
1070
Scales V. Desha
175
V. Key
1284
Scammon v. Campbell
949
V. Scammon
382, 1085,
1129
Scanlan v. Childs
980 o
V. Gillan
1017
V. Wright
111
,953
Scarborough v. Reynolds
62
Schaben v. U. S.
114
Schaeffer v. Kreitzer
831
Schafer v. The Bank
881
Schall V. Miller
180
Scharff v. Keener
210
Schearer v. Harber
174
Scheel v. Eidman
223,
1277
Schell V. Plumb
284, 551
,667
Schenck v. GriflSn
958
V. Ins. Co.
144
,507
Schenley v. Com.
559
Sohermerhorn v. Talman
1302
Scherpf v. Saadeczky
424
Schett;iger v. Hopple
945,
1028
Schettler v. Jones
517
, 519
Schibsby v. "Westenholz
803
Schieffelin v. Carpenter
858
Schimdt V, Zahensdorf
788
Schintz V. McManamy
633
Schirmer v. People
980
Schlater v. Winpenny
551
Schmidt v. Gatewood
907
V. Herfurth
449
V. Ins. Co.
47, 963,
1246
Schuader v. Schnador
492
Schneider v. Heath
961
V. Norris
873
Schneir v. People
Schnertzell v. Voung
493
100
Schnitzer v. Print Works
961
Schofield V. Heap
974
Scholes V. Chadwick .
237, 1161
V. Hilton
382, 495
Scholey v. Walton
119
Schollenberger v. Seldonridge
683
Schoneman v. Tegley
123
School Dist. V. Blakeslee
175
Schools V. Risley
668, 1342
Schoonmaker v. Lloyd
101
Schrader v. Decker
1052
Schreiber v. Osten
942
Schuchardt v. Aliens 21, 298, 506, 967
Schulte V. Hennessy
444
Schultz V. Astley
632
V. Herndon
699
V. Lindell
444
V. Pacific R. R.
360
Schuylkill v. Copley
Schuylkill Ins. Co. v. McCrea
397
ry 1041
Schwear v. Haupt
1019
Schwickerath v. Cooksey
1028
Scoby V. Blanchard
1042
Scoggin V. Dalrymple
191
Scoones v. Morrell
1339
Scorell V. Boxall
866
Scovill V. Baldwin
1267
Scott, in re
1321
Scott V. Bailey
962
u. Baker
1204
V. Blanchard
99
V. Blaze
939
V. Bourdillon
961 a
V. Coxe
678
V. Dansby
1200
V. Docks
359
V. Douglas
1039
V. Fenoulhett
1000
V. Ins. Co.
1246
V. Jackson
322
V. Jones
77, 78, 159
V. Leather
829
V. McFarland
863
V. McKinrush
53
u. Noble
818
V. Ocean Bank
1060
V. Peebles
47
V. Pllkington
781, 801
V. Ratcliffe
208
V. Scott
433, 1220
V. Sheakly
944
V. Shepherd
1296
V. Shearman
814, 816
V. Whittemore
1066
V. Williamson
1301
V. Young
1090
V. Zygomala
490
Scran ton ». Stewart
578, 797
Screger v. Garden
1115
758
TABLE OF OASES.
Scurry v. Ins. Co.
1064
Seyerance v. Carr
500
Seago V. Deane
1027
V. Hilton
47
Seaman v. Netherclift
454, 497, 722
Sevey v. Chick
758
V. Price
909
Sewall V. Evans
1273
Seargent v. Seward
422
Sewell's case
1152
Searles v. Thompson
1103
Sewell V. Baxter
1048
Sears v. Brink
869
V. Corp.
120
V. Dennis
1296
V. Evans
701
V. Hayt
1102, 1173,
1174
Sexton V. McGill
142
u. Schafer
451
V. Windell
946
V. Wright
1058
Seyfarth v. St. Louis
446
Seaver v. Robinson
389
Seymour v. Harvey
514
V. R. K.
444
V. Marvin
335
Seaverns v. Tribby
516
V. Osborn
961,972
Seavey v. Seavey
120
V. Wilson
482
Seavy v. Dearborn
529, 547, 559
Shaak's Estate
424
Sebastian v. Ford
823
Shackford w. Newington
357, 935
Sebree v. Dorr
61
Shafher v. State
85
Second Bank v. Miller
1215
Shaible v. Ins. Co.
676
Second Nat. Bk. v. Walbridge
1066
Shailer v. Bumstead 900,
1009, 1010,
Secor V. Pestana
1077
1011, 1199
Secrest v. Jones
643, 740
Shaller v. Brand
734
Secrist v. Green
118, 201
, 208
Shank v. Batsch
712
Sedam v. Shaffer
864
Shankland v. Washington
920, 936
Seddon v. Tutop
788
Shanks v. Hayes
412
Seechrist v. Baskin
1332
V. Lancaster
733, 821
Seeds v. Kahler
1153,
1315
Shannon v. Bradstreet
870
Seeley v. Engell
424, 492
Shapper v. Richardson
429
Segee v. Thomas
1302
Sharman v. Brandt
75, 869
Segur V. Tingley
1017
V. Morton
420
Seiber v. Price
931
Sharon v. Salisbury
1209
Seibort v. Allen
529
V. Shaw
875
Seiton v. North Bridgewater
446
Sharp V. Carlile
835
Selby W.Clark
726
V. Emmet
556, 1061
V. Friedlander
936
V. Freeman
771
V. Selby
873
V. Lnmley
106
Selden v. Bank
510
V. Maxwell
1214
V. Canal Co.
863
V. Newsholme
262
V. Myers
931,
1019
V. Scoging
562
Self w. King
1058
V. Sharp
314
Selfe V. Isaacson
491
V. Smith
1163 a
Sellers v. Tell
1317
V. Spier
63, 1041
Scllick V. Booth
1274
V. Wickliffe
740, 826
Sells V. Hoare
387
Sharpe v. Bellis
1061
V. Sells
1022
V. Lamb
154
Selma v. Keith
21
V. Macaulay
451
Selower v. Rexford
516
Sharry v. Garty
487
Selsby v. Redlon
1167
Shattuck V. B. R.
450
Selway v. Chappell
393
V. Train
439
Selwood V. Mildmay
945,
1004
Shaver v. Ehle
725, 1095
Semple v. Hagar
287
Shaw, ex parte
756
Seneca v. Zalinski
1356
Shaw V. Eeebe
1148
Seneca Bk. v. Neass
123
V. Broom
1163 a
Sennett v. Johnson
1014
V. Charlpstown
446, 453
Senser v. Bower
84
V. Davis
1127
Senterfit v. Reynolds
944
V. Emery
562
Sergeant v. Ewing
771, 784
V. Gardner
357
V. IngersoU
1156
V. Gould
801, 803
Servis v. Nelson
727
V. Lindsay
807
Sessions v. Little
262
V. Macon
839
Seton V. Slade
873
V. Markham
162
Settle V. Alison
99, 100
V. McDonald
839
Sevarcool v. Harwell
21
V. Moore
395
769
TABLE OF CASES.
Shaw V. Picton
V. Shaw
V. State
V. Stone
Shays v. Norton
Shearer v. Clay
Shearman v. Angel
Shed V. Augustine
V. Brett
Shedden v. Att. Gen.
Sheehan v. Davis
Sheehy v. Adarene
V. Ass. Co.
V. Mandeville
1146
1285
294
1190
1032
208
992
300
1323
84, 205, 214
366, (40
883
801, 803
772
Sheen v. Bumpsteed 28, 35, 39, 2.52, 254
Sheets v. Selden 1315
Sheffield u. Page 1015
V. Parmlee 366
Sheffield & Manch. Ey. Co. u. Wood-
cock 1151
Sheils V. West 366, 1265
Shelbiria v. Parker 758, 782
Shelbume Bk. v. Townsley 1323, 1325
Shelbyville v. Shelbyville 1315
Sheldon v. Benham 251, 654, 1323
V. Bradley 1031
V. Coates 115
V. Ferris 1274
V. Frink 63
V. Ins. Co. 1064, 1365
V. Payne 833
V. R. R. 43, 361
V. Stryker 740, 783
V. Wright 795, 1319
Shellabarger w. Nafus 417
Shelly V. Wright 1039
Shelmire's Appeal 1196
SheltOD V. Braithwaite 870
V. Brown 763
V. Hampton 549
V. R. R. 360
V. State 440, 441
V. Tiffin 796, 803
Shenango v. Braham 1290
Shepard v. Giddings 137, 154
V. Parker 548
V. Pratt 510
Sheperd i'. Brooks 139
Shephard v. Little 1042
Shepherd v. Chewter 1065
V. Currie 1336, 1362
V. Frys 690
V. Goss 723
V. Hamilton Co. 513
I). Kain 961
V. Payne 941
V. Payson 489
V. Thompson 192
V. Willis 508
Sheppard w. Bank 1140
U.Starke 1216,1217
Sherborne v. Shaw 871
Sheridan's case 81
760
Sheridan v. Medara
V. Quay Co.
Sherley v. Billings
Sherlock v. Ailing
Sherman v. Blodgett
V. Sherman
V. Smith
0. Trans. Co.
Sherras v. Caig
Sherrerd v. Frazier
Sherrington v. Jermyn
Sherry v. Picken
Shertz v. Norris
Sherwood v. Bnrr
». Hill
V. Houston
V. Sissa
Shewalter v. Pirner
Shields v. Boucher
V. Byrd
V. Miltenberger
ShifF V. Ins. Co.
Shilcock V. Passman
Shindler v. Houston
Shinkle v. Bank
Shipley v. Patton
393
1150
1102
475
509, 510
1140
63
21, 726, 883
670
106
626
866
476
1349
429
175
678
939, 942
205, 208
142
981
963
356
874, 875
1363
883
V. Todhunter 979, 1323, 1325
Shippen's Appeal 667
Shirley v. Fearne 64, 988
Shitter v. Bremer 709
Shitz V. DiefFenbach 903
Shoemaker v. Ballard 986
„: Bank 1323
V. Kellog 681, 686
Shoenberger v. Hackman 72, 90, 724,
1266
Shoofstall V. Adams 864
Shook V. Pate 185, 677
Shore v. Bedford 587
0. Wilson 23, 924, 936, 940, 941,
956, 962, 963, 972, 993
Shorey v. Hassey 550, 1318
Short V. Lee 187, 226, 234, 246, 1316
II. Staple 366
V. Williams 322
Shorter v. Shepard 130
Short Mountain Co. i^. Hardy 507, 872,
1090, 1127, 1183
Shortrede v. Cheek 870
Shortz w. Unangst 143,153,643,740,
1267
Shotwell V. Harrison 1043, 1049
V. Murray 1029
V. Shotwell 931
Shove V. Wiley 250
Shown V. Barr 103
Shreve v. Dulany 155
Shreveport v. Le Rosen 920
Shrewsbury Peerage Case 82, 203, 204,
210, 216, 219, 220, 636, 639, 712
Shriedley v. State 516
Shrowders v. Harper 151
Shroyer v. Miller 47, 50
TABLE OF CASES.
Shubrick v. State 278
Shuetz V. Bailey 939, 946
Shnfelt V. Shufelt 769
Shughart v. Moore 928, 1018, 1026
Shulman v. Brentley 357
Shultz V. Ins. Co. 1246
V. Moore 78
Shuman v. Shuman 201, 210
Shumway w. StiUmaa 796, 808
Shurtleff v. TViUard 393
Shntte V. Thompson 18.^, 186
Shuttleworth v. Le rieming 1349
Sibbering v. Balcarres 1320 a
Sibley v. Ellis 1349
V. Waffle 582
Sichel V. Lambert 1297
Sickle V. People 714
Sidebotbam v. Adkins ^ 538
Sidelinger v. Bucklin 47, 570
Sidensparker v. Sidensparker 823
Sidney v. Sidijey 1298
Sidwell V. Evans 864
V. Worthington 1302
Siegbert w. Stiles 339,1290
Sievewright v. Archibald 75, 1016
Siffkin V. Walker 951
Sigoarney v. Sibley 600
Sikes V. Paine 444
Sill V. Reese 259, 708
Silliek V. Booth 1277, 1280, 1283
Silliman v. Tuttle 1015
Sills V. Brown 452
Silsbury v. Blumb 102^
Silver Lake Bank v. Harding 99
Silver Mining Co. v. Pall 12
Silvers v. Hedges 366
Silvis V. Ely_ 1077
Siramonds, in re 886
Simmonds v. Humble 875
V. Simmonds 414
Simmons v. Holster 533, 563
U.Jenkins 1112
V. Law 958, 959
V. Marshall 953
V. McKay 795
It. Norwood 265
0. Eudall 629, 630
V. Rust 259, 1173
V. Sisson 468
Simms v. Killiau 863
V. Lawrence 690
Simon v. Gratz 597
Simons v. Cook 100
V. Monier 450
V. Steele 869
V. Vulcan Co. 33
Simpson J). Barnard 11
V. Bovard 476
V. Brown 577
V. Carleton 829, 834, 1331
V. Carter 490
V. Ball 147
V. Davis 629
Simpson v. Dendy
1339
V. Eogo
801, 803
V. Garside
749
V. Howden
798
V. Kimberlin
937
V. Margitson 335,
940, 961 a,
965, 966
V. Montgomery
1053
V. Mundee
740
V. Norton
142
V. Pickering
764
V. Robinson
27, 1138
V. Stackhouse
629
V. White
123
Sims V. Ex. Co.
288
V. Maryett 286
295, 299, 324
V. Thomas
801
Simson v. State
400, 401
Sinclair v. Baggaley
977, 978
V. Murphy
1149
V. Roush
447, 450
V. Sinclair
1208
V. Stevenson
154, 525
V. Wood
689
Singleton v. Barrett
77
V. Pore
920
V. Gayle
690
Siordet v. Kuczinski
60
Sirrine v. Briggs
629
Sisson V. Conger
401,451, 900
».R. R. 509,647,674,
1173, 1221
Sissons V. Dixon
356
Sisters of Charity of St.
Vincent
de Paul V. Kelley
886
Sizer v. Burt
134, 140, 519
Skaife v. Jackson
1064, 1365
Skelton v. Cole
871, 872
V, Hawling
1113
Sketchley v. ConoUy
490
Skidmore v. Bricker
776
Skilbeck v. Garbett 1323,
1326, 1330
Skillen v. Skillen
466
Skinner v. Church
1059
V. Dayton
634
V. Judson
754
V. Perot
397
V. R. R. 576, 593, 606, 742, 1090
V. Tinker 697
V. Wilder 1343
Skipp V. Hooke 324
Skipwith V. Cabell 1008
Skowhegan Bank v. Cutler 61
Skyring v. Greenwood
Slack V. Kirk
V. Norwich
V. Rusteed
Slade V. Halsted
V. Minor
V. Nelson
Slane Peerage case
Slany v. Wade
Slater v. Hodgson
V. Lawson
T61
1017, 1146
881
661
886
1044
1306
686
94
205, 220
195
1201
TABLE OF OASES.
Slater v. Smith
870, 901
Smith V. Cooke
262
V. Wilcox
439, 441
V. Crompton
763
Slatterie v. Pooley
1091, 1093
V. Crooker
623
Slattery v. People
1138
V. Groom
852, 1280
Slaughter v. Birdwell
383
V. Ball
694
Slaymakerw. Gundacker 1199, 1199 a,
V. Dallas
1014
1201
V. Daniel
607
V, Wilson
709, 712
V. Daniell
589
Slee V. Bloom
761
V. Davies
356
Sleeper !). Van Middlesworth
563, 1284
V. Dolby
895
Slingsby v. Grainger
945
V. Dreer
573
Sloan V. Anlt
686
V. Dudley
61
V. Gilbart
1246
V. Earl Brownlow
669
V. Maxwell
451
V. Elder
1058
V. R. R.
15, 555
V. Elliott
1053
V. Summers
180, 514
V. Evans
889
V. Wilson
869
V. Fairbanks
492
Slocomb V. De Lizardi
758
V. Fell
578
Slocum V. Wheeler
814
V. Fenner
714, 1009
Sloman v. Heme
1X62
V. Ferris
795
Slone V. Thomas
140
V. Forrest
185, 191, 1156
Sloo V. Roberts
141
V. Gibbs
920
Slowey V. McMurray
1031
u. Gould
314
Sluby V. Champlin
727
V. Grosjean
182, 183
Small V. Gillman
265
V. Gugerty
444
V. Pennell
129
V. Hamilton
1332
Smallcome v. Bruges
1164
V. Harris
■889
Smart v. Blanchard
975
V. Henderson
701
V. Harding
863 1
V. Higbee
1014
V. Hyde
969
V. Hill
446, 1137, 1138
V. Norton
1344
V. Holland
1064
Smead v. Williamson
422
V. Hollister
1184
Smets V. Plunket
47
V. Hoskins
820
Smiley v. Mayor
663
V. Howden
1339
Smith's case
1170
V. Hudson
876
Smith, in re
626, 1064
V. Hughes
640, 740
Smith V. Alexander
1061
V. Huson
1297
V. Arnold
868, 870
V. Hutchings
500
V. Atwood
151
V. Hyndman
53, 117
V. Axtell
61
V. Ives
869
V. Barber
1059
V. Jeffries
368
V. Bartram
305
V. Johnson
788
V. Battens 977,
1135, 1312
V. Jones
788, 1089
V. Beadnell
1120
V. Jordan
1019, 1314
V. Beaufort
755
V. Kay
487, 931
V. Betty
265
V. Keating
1305
V. Biggs
180, 1109
V. Kirby
63
V. Bing
952
V. Knowlton
1274, 1276
V. Blakey 228, 244, 247, 688
V. Kramer
259
V. Bossard
1184
V. Lane
516, 682
V. Brannan
115
V. Lawrence
643
V. Brooks
1044
V. Maine
1158
V. Brounfield
190
I'. Martin
356, 1168
V. Bryan
867
V. Matthews
1034
V. Burnham
863, 864
V. McCarthy
290
V. Carter
135
V. McDougal
1029
V. Castles
541
V. McGehee
828
V. Clayton
961
V. McKean
797
V. Coffin
395, 396
V. McNamara
1156
V. Collins
1194
V. Miller
1350
V. Com.
290, 509
V. Morgan
523, 1210
V. Conrad
923, 1044
V. Morrell
1059
V. Constant
487
V. Morrill
1059
762
TABLE OF CASES.
Smith V. Moynihan
923, 950
V. MuUiken
1184
V. Neale
873, 883
V. Nelson
798
V. Nicolls
801, 805
V. Niver
858, 860
V. Palmer
1092
V. Paris
1060
V. Parks
1031
V. Pattison
828
V. Penny
1041, 1143
V. People
555
V. Phillips
61
V. Porter
977, 1051
V. Potter
302
V. Powers
1157, 1168
V. Prescott
72, 706, 708
V. Eankin
704
V. Redden
97, 109
V. Reed
153
K. Richards
1026
V. Ridgway
1005
V. Roach
118
V. Royston
786, 793
V. R. R. 43, 360, 361, 866, 1015,
1294
V. Rummeus 776
V. Russell 185
V. Scantling 689
t). Schank 1163a
V. Scudder 1215
V. Sergent 468
V. Shackleford 836
V. Sherwood 785
V. Sleap 152
V. Smith 63, 314, 431, 466, 684,
784, 797, 824, 886, 887, 888,
909, 1089, 1158, 1246, 1274,
1277, 1284
V. Speed 338
I'. Stapleton 1286
V. State 175, 412
j;. Steamboat Co. 180
• V. Stickney 570
V. Strong ' 668
V. Supervisors 967
V. Surman 866, 867, 875
V. Tallahassee 1068
V. Tarlton 864
V. Tebbitt 1253
V. Thackeray 1346
V. Thomas 1058
u. Thompson 1321
V. Tombs 863
V. Truscott 382
V. Underdunck 909
t>. U. S. 114,115,622
V. Voss 331
v. Wallace 1173,1175
V. Walton 707, 713
V. Ward 1052
V. Way 784
V. Weeks 789
Smith V. Whitaker 314, 315, 1250
V. Whiting 788
w. Whittirgham 1212
V. Wilkins 1287
V. Williamson 1302
V. Wilson 135, 940, 958, 961, 965,
972
V. Winter 743
V. Winterbotham 1170
V. Wood 795
V. Wright 1019, 1031
V. Young 77
Smitha v. Flournoy 339
Smiths V. Shoemaker 1127, 1154
Smithwick v. Evans 408, 563
Smock V. Smock 900
Smout V. Ibery 1284
Smyth V. Bidch 463
Snecker v. Taylor 423
Sneed U.Ward 116,694
Snell V. Snow 975
Snelling v. Huntingfield 883
Snodgrass v. Bank 947
Snow V. Batchelder 393
V. Paine 482, 1077
V. Prescott 789
V. Walker 1142
V. Warner 875, 876
Snowden v. Warder 959, 965
Snydacker v. Brosse 1119, 1216
Snyder t). Bowman 115
V. Koons 921
V. Laframboise 1204
V. May , 392
V. Nations. 407
V. Oatmau 979
V. Reno 1127, 1129
V. Riley 979
V. R. R. 446
V. Snyder 422, 499, 1050
V. Wilt 1044
V. Wise 99
Soar V. Foster 1035
Sobey u. Thomas 415
Society v. Wheeler 1353
V. Young 1313
Society of Savings v. New London 1147
Soc. Prop. Gospel v. Whitcomb 64
V. Young 292, 294,
1303, 1310
Sodouski V. McGee 31, 535
Soles V. Hickman 870
Solita ». Yarrow 713
Solly V. Hinde 1044
Solomon v. Solomon 1088
u. Vintners' Co. 1346
Somers v. Harris 690
V. Wright 520, 685, 1165
Somervell v. Hunt 674
Somerville v. Gillies 1362
V. Hawkins 1263
V. Wimbish 292, 293
Somerville R. R. v. Doughty 572
763
TABLE OF CASES.
Sopwith V. Sopwith 758, 786
Sorg V. First German Cong. 419, 510
Sorrell !). Craig 1126,1135
Sotilichos V. Kemp 958
Souch V. Strawbridge 883
Soulard v. Clark 640
Sourse v. Marshall 920, 923, 1068
Southard v. Rexford 533, 536, 538
South E. E. R. V. Wharton 1040, 1083
Southern Bank v. Humphreys 766, 982
V. Mech. Bk. 123
Southern Ex. Co. v. Thornton 708, 1127
Southern Exp. Co. v. DuflFey 1173
Southgate u. Burnham 826
South. Life Co. v. Gray 1062
Southern Life Ins. Co. v. Wilkinson 219,
510, 1193
Southey v. Mash 491
South of Ireland Colliery Co. v. Wad-
die
694
South Ottawa v. Perkins
1147,
1240
Southwest Co. v. Stanard
875
Southwest R. R. v. Rowan
259
Southwick V. Southwick
431
Southworth v. Bennett
562
V. Hoag
357
Soutier v. Kellerman
961
Soward a. Leggatt
356
Sowden v. Craig
828
Sower V. Weaver
487
Sowerby v. Butcher
951,
1061
Sowers v. Dukes
513
V. Earnhart
1018,
1027
Sowles V. Sowles
1044
Spaids V. Barrett '
931
Spalding v. Bank
142,
1170
V. Hedges
664
,665
V. Saxton
63
Spann v. Baltzell
123
V. Crummerford
315
Spargo V. Brown
227
Sparhawlc v. Bullard
194
Sparks v. Com.
1296
V. Rawles
77, 1331,
1334
Sparr v. Wellman
510
Sparrow v. Tarrant
704
Spartali v. Benecke
929, 958
,969
Spatz V. Lyons
265
,263
Spaulding v. Hallenbeck
237, 393,
1156
V. Harvey
357
V. Knight 175,
923, 1042,
1044
V. R. R.
360
V. Vincent
IK
,319
Spaunhorst v. Link
555
Spear v. Richardson 45S
, 502, 51C
, 512
Spears v. Burton
944,
1274
V. Forrest
562
V. Ward
958
Speed V. Brooks
201
,216
Speer v. Plank Road
290
Speers v. Parker
1305
Spenoe v. Healey
1018
V. Sanders
688
764
Spenceley v. De Willott
V. Schulenburgh
Spencer v. Billing
V. Bedford
V. Dearth 758,
V. Hale
V. Higgins
V. Langdon
V. Newton
V. Roper
I/. Thompson
V. Til den
V. Trafford
V. White
0. WiUiams
Sperling, in re
Speyer v. Stern
V. Sterne
Speyerer v. Bennett
Speyers v. Lambert
Spicer v. Cooper
b. Hooper
V. Smith
Spickemell v. Hotham
Spicott's case
Spiers v. Willison
Spiker v. Nydegger
Spill V. Maule
Spilsburg V. Burdett
Spitler V. James
Spittle V. Walton
Spiva V. Stapleton
Splahn V. Gillespie
Splawn V. Martin
Spofford V. Brown
Sponagel v. Dellinger
Sponer v. Eifler
Spooner v. Juddow
V. Payne
Spoor V. Holland
Spradling v. Conway
Spragg )'. Shriver
Sprague v. Bailey
t>. Blake
u. Duel
V. Kneeland
V. Litherberry
V, Luther
Sprigg V. Bank
V. Moale
Sprigge V. Sprigge
Spring V. Eve
u. Insur. Co.
V, Lovett
Springfield v. Worcester
Spring Garden Ins. Co. v.
Sproat V. Donnell
Sprowl V. Lawrence
Spurgin v. Fraub
Spurr V. Bartholomew
V. Trimble
Squire v. State
559, 1287
587
80
730
779, 794, 823
875
1002
118
389
1276, 1277
31, 1330
920, 936
469
549
811
889
68
90
178, 477
869
961 a
961
690
870
411
77
518
1263
1314
632
402, 403
439
821, 833
1045
1058
1103
697
324
726
8128
429
981
645
875
1253
1165
1302
887
1031
1274, 1279
900
929
286
Evans 153,
523
1070
282, 335
932, 1023
1310
1274
84
TABLE OF CASES.
Srimut Eajah v. Katama Matchiar 788
Stacey v. Graham 569,
1127,1336
V. Kemp
1044
Stackhouse v. Horton
451
Stackpole v. Arnold 951,
1031, 1066
0. Eobbins
1066
Stafford v. Clark
788
V. Eoof
1272
Stable V. Spohn
551
Stainback v. Bank
123
Staines v. Stewart
895
Stainton v. Chadwick
755
V. Jones
331
Stair V. Bank 226,
1019, 1031
Stalworth v. Inns
824
Stall V. Meek
1217, 1257
Stallings v. Hinson
466, 473
V. State
252
Stamford v. Dunbar
1351
Stammers v. Dixon
941
Stamper v. Griffin
68, 569
Stanbro v. Hopkins
543
Stancliffe v. Hardwick
1259
Standage v. Creigbton
1188
Standifer v. White
1058
Standish v. Eoss
1155
Stanfield v. Phillips
510
Stanford v. Pruet
288
Stange u. "Wilson
1026
Stanger v. Searle
707
Stanglein v. State
110, 319
Stanley v. Green
945
V. Stanton
430, 478
V. State
451, 512
V. White
44, 45
Stannard v. Smith
1129
Stanton v. Collier
862
V. Miller
927, 930
V. Eyan
474
V. Small
875
Stanwood v. McLellan
521
Stapenhorst v. Wolff
937
Staples V. Wellington
931
Stapleton v. Crofts
432, 464
V. King
1066
Stapylton v. Clough
232, 245
Starbuck v. Murray
796, 808
Stark V. Chesapeake Ins. Co.
176
*. Fuller
986
Starke v. Kenan
1200
V. Littlepage
1019
u.'People
568, 569
V. Sikes
558
Starkweather v. Loomis
99
Starr v. Bennett
1170
w.'Peck
83
V, Sanford
123
V. Torrey
1323
Starrett v. Douglass
1012
State!). Abbey
87
V, Abbott
278, 289
V. Adams
545
V. Allen
712
State w. Anderson
707
V. Andrews
64
V. Armstrong
84
V. Arnold
346
V. Atkins
177
V. Atkinson
796
v. Avery
512
V. Bailey
116,286,541
V. Baker
601
V. Bartlett
106, 107, 1273
V. Beard
636
V. Beebe
601
V. Benjamin
383
V. Benner
500, 549, 559, 601
V. Bennett
422
V. Berg
627, 628
V. Berlin
422
V. Berry
643
V. Berlin
346
V. Bilansky
535
V. Black
265,431
V. Blake
533
V. Bostick
597
V. Boswell
562
V. Brant
568
V. Brantley
412
V. Breeden
562
V. Briggs
425, 432
V. Brinyea
1253
V. Briton
84
V. Broughton
601
V. Brown
796
V. Bruce
■562
V. Brunello
509
V. Campbell
177
V. Candler
397, 708
V. Carr
289, 708, 713
V. CatskiU Bk.
391
V. Center
427
V. Chaney
723
V. Charity
607
V. Check
289, 525, 718
V. Cherry
568, 569
V. Clark
116
V. Cleaves
1137
V. Clemens
980
V. Clothier
120
V. Cole
796
V. Collins
555
V. Colvin
796
V. Commis.
980 a
V. Cook
177, 420
V. Coombs
792
V. Cooper
795
V. Cowan
4U
V. Crowell
368
V. Damery
393
V. Daniels
664
V. Daubert
1206
V. Davis
796
V. Dee
464, 544
V. Delesdenier
293
V. Denio
572
765
TABLE OF CASES.
State V. Dennin
570
State w. Jackson
265, 300
V. Dennis
398
V. Jarrett
286, 292, 293
V. De Witt
64, 988
V. Jerome
56
V. De Wolf
399, 401, 407
V. Joest
222
V. Dominique
265
V. Johnson
421, 551, 1131
V. Dooris
658, 659
V. Jolly
429
V. Dore
570
V. Jones
796
V. Dousman
290
U.K.
533, 539
V. Dudley
429, 432
V. Kean
84,87
V. Duncan
175
V. Keene
387
V. Dunwell
320
V. Kennedy
384
V. Dutton
1090
V. Keyes
397
V. Edwards
63, 326
V. Kimball
528
V. Elliott
559
V. Kingsbury 24,
551, 558, 559, 570
V. Engle
118
V. Klinger
451, 452, 507
V. Evans
368
V. Knapp
346, 512, 1265
V. Farish
1302
V. Lang
783
V. Fasset
601
V. Langford
511
V. Fitzsimmons
491
II. Larkin
1204
V. Flanders
515
V. Lash
84
V. Flye
371
V. Lawson
1313
V. Folwell
510, 512
V. lie Blanc
398
V. Foster
535, 539, 823
V. Lefaivre
936
V. Fox
257
V. Leiber
293
V Frank
1019
V. Lewis
1302
V. Fritz
712,714
V. Llbbey
84
V. Gardner
397, 432
V. Lipscomb
368
V. Garrand
■ 259
V. Litchfield
595
V. Garrett
346, 541
V. Little
796
V. Garvey
508
V. Longineau
63
0. Gates
415
V. Lull
500, 522, 524, 549
V. George
569, 570
V. Mairs
580
V. Gibson
1302
0. March
541
V. Givens
712
V. Marler
551, 555
V. Glass
268
V. Marshall
533
V. Goin
1271
V. Marwin
432
V. Grace
385
V. Matthews
64, 988
V. Greenwell
201, 207
V. Mayberry
160
V. Grape
1212
V. McAllister
30, 294
V. Hare
135
V. McCord
431
V. Harris
719
V. McCracken
290
V. Hastings
714
V. McGinley
357
V. Haynes
175, 574
V. McGlynn
368
V. Hays
269
V. McLeod
180, 601
V. Hazleton
576
V. McNaUy
78
V. Henderson
540
V. McO'Blenis
177
V. Hess
207
V. Medlicott
452
V. Hessenkamp
1261
V. Melton
1319
V. Hill
698, 1315
V. Messick
1063
V. Hilton
84
V. Minnick
337
V. Hinchmau
100, 288, 300, 1308
0. Mix
412
V. Hinkle
439, 443
V. Montgomery
566
V. Hirsch
368
V. Moore
568, 1273, 1276
ti. Hodgskins
84
V. Morea
398, 399, 401
V. Hogan
1192
V. Morphy
V. Moulton
441
V, Hooker
177
431
1 V. Hoppiss
575
V. Mulholland
551
i V. Horn
83, 85, 653
V. Murphy
.83
V. Home
481, 484
B. Nash
431, 1194
V. Howard
563, 568
V. Neagle
826
V. Hoyt
555, 556
V. Neill
422
V. Hyde
822
V. Nixon
383
V. Isham
607
V. N. Y. Hospital
402
766
TABLE OP CASES.
State K-
V. Ober
483, 539
V. O'Brien
665
V. 0' Conner
286
V. Offatt
601
V. O'NeU
562
V. Oscar
545, 566
V. Ostrander
555, 558
V. Oxford
601
V. Patterson
83, 314, 427, 535,
552, 559, 561, 565
V. Peace
412
V. Perkins
565, 568, 1138, 1315
V. Pettaway
432, 608, 1299
V. Plielps
429
V. PhUlips
1269
V. Pike
451, 511, 512, 1206
V. Piatt
290
!). Porter
455
I'. Potts
160
V. Powell
441, 452, 602
!;. Powers
339
V. Pugh
1271
t). Pulley
551, 559
t>. QuarleS
540
V. Band
537
t. Eandolph
397, 408, 563
V. Ravelin
719
V. Eawle
518
V. Rawles
259
V. Records
834
V. Eeddick
439, 441, 1253
V. Reed
551,559,1137
V. Eicheson
368
V. Eidgely
397
V. Roberts
1315
V. Roe
569
V. Rood
83
V. Rorabacher
574
u. Rosenfeld
61
V. Ross
1192
V. Roswell
84
V. Salge
491
V. Sanders
84
V. Sargent
559
V, Sartor
635
V. Safer
562
V. Sayers
529
V. Scanlan
391, 399, 400
V. Schilling
325
V, Schneider
263
K. Scott 64, 393, 572, 714, 988
V. Seals
84
V. Shadle
290
V, Sherman
294
V. Shields
562
V. Shinborn
511, 518, 521, 708,
719
V. Silver
574
V. Smith 6a
, 439, 441, 512, 646,
1252
V. Snowden
321
V. Soper
604, 1192
V. Speight
565
State V. Spence
708
V. Spencer
1253
V. Stade
98
V. Staley
559
V. Stalmaker
707, 708
V. Staples
178, 541
V. Straw
431
V. Sutherland
542
V. Taylor
421
V. TerreU
438, 666
V. Thibean
559, 1192
V. Thomas
570, 661
V. Thompson
63
V. Thomson
693
V. Thornton
64, 988
V. Thorp
513
V. Tootle
339
V. Touney
49
V. Townsend
396
V. Trumbull
383
V. Twitty
30, 288
V. Underwood
418
V. Valentine
397
V. Vance
1296
V. Vincent
570
V. Vittum
1273
V. Wagner
664
V. Wallace
83, 653
V. Ward
439
, 714, 719
V. Waters
216
V. Welch
422, 432
V. Wells
117
V. Whittier
29, 391
, 399, 400
V, Windsor
451
V. Winkley
557
V. Williams
336,
412, 1269
V. Williamson
1302, 1354
V, Wilson
432
V, Winsor
452
V. Wisdom
156
V. Wise
294
V. Witherow
387
V. Wood
439
V. Wooderd
1133
V. WoodruflF
346
V. Woodside
420
V. Young
290
V. Zellers
385, 491
State Bank v. Curran
337
State Line v. Juniata P.
R. Co.
290
St. Catherine's Hospital
case
664
St. Clair v. Lovingston
1342
Stead V. Dawber
901
, 902, 906
V. Heaton
229
Steadman v. Arden
742, 744
Steamboat v. Webb
1070
Steamer Niagara v. Cordes
357
Stearine, &c, Co v. Heintzmann
306
Steam v. Mills
1121
Stearns v. Bank
549
V. HaU
901,
902, 1025
V. Hendersasa
1160
V. Hubbard
909
767
TABLE OF CASES.
Stearns v. Mason 1026
V. Stearns 1302
V. Tappin 1063
V. Wright 471
Stebbins v. Cooper 63
V. Sackett 492
V. Spicer 1273
Stedman v. Gooch 824
V. Patchin 64, 100, 988, 989
Steel K. Black 1031
V. Pope 107
V. Prickett 185, 187, 1339
V. Smith 818
V. Williams 151
Steel & May, in re 900
Steele v. Etheridge 60
V. Hoe 1044
V. Lineberger 766, 769
V. Mart 977
V. Phoenix Ins. Co. 466
V. Price 139, 900
V. Thompson 262
V. Townsend 355', 363
Steen v. State 478
Steene v. Aylesworth 528
Steere v. Steere 903
V. Tenney 99, 114, 807
Steffy I). Carpenter 1081
Stegall V. Stegall 205, 215, 1298
Stein V. Ashby 668
V. Bowman 110, 216, 305, 429, 432
V. Prairie Eose 788
Steinberg v. Eden 114
Steinburg v. Callanan 824
Steinkeller v. Newton 177, 523
Steinman v. McWilliams 47, 50
Stellu. Glass 797,985
Stenhouse u. R. E. 1183
Stephen v. Gwenap 227
V. State 282
Stephens t). Baird 1143
V. Graham 624
V. Heathcote 1104
(/. McCloy 1102
V. People 68, 383, 441, 524, 869
V. Pinney 62
V. Vroman 176, 1088
V. Westwood 116
Stephenson v. Bannister 100, 288
V. Eiver Tyue Commis-
sioners 434
V. State 347
Stern v. Sevastopnlo 490
Sternburg v. Callahan 141
Sterner v. Gower 988
Stetson V. Bank 1212
V. Dow 1039
V. Godfrey 519, 524
V. Gulliver 72, 120
V. Howland 263
b. Woleott 682
Stevens v. Beach 547
V. Benton 500
768
Stevens v. Bigelow
837
V. Bomar
118
V. Cooper
1014
V. Dennett
1143
V. Passett
795
V. Graham
626
- V. Hays
936
V. Hoy
1315
V. Irwin
565
V. Lloyd
624
, V. Martin
629, 631,.741
V. McNamara
1148, 1274
V. Reed
151
V. Taft
1313, 1350
u. Thompson
829
V. Vancleve
1252
V. West
444
V. Whitcomb
537
Stevenson v. Erskine
942r
V. Hoy
72,90
V. Marony
353
V. Stevenson
- 433
V. Stewart
20
Steward v. E. L. Co.
599
V. Swanzy
319
Stewart, in re
890
Stewart v. Allison
122
V. Bank
1170
V. Canty
1241
V. Chadwick
944
V. Clark
856
V. Conner
238, 1082
V. Dent
784
V. Eddowes
1017
V. Fenner
33
V. Gray
100
V. Ludwick
1017
V. People
551, 568
u. Eeditt
265, 269
V. Smith
490, 961
V. State
1192
V. Steele
380
V. Stone
1116
V. Swanzy
110, 289
V. Thomas
1165
Stewartson v. Watts
1180
Steyner v. Droitwich
653, 664
St. George's v. St, Margaret's 1298
Stickney v. Bronson 518
Stiles u. Brown 1140
V. Danville 268, 1180
V. Giddens 1046
V. R. E. 1180
Stilwell V. Carpenter 414, 487, 798, 838
Stirapfler v. Roberts 1338
Stimson v. Farnham 1155
Stinchfield v. Emerson 1274, 1279
Stine u. Sherk 932, 1019, 1050
Stinger i;. Gardner 1001
Stinson v. Snow 833
Stitt V. Huidekopers 158, 415
St. John V. Benedict 1033
V. Ins. Co. 156, 690
TABLE OP CASES.
St. John V. R. R. 357
St. John's Ch. v. Steinmetz 694, 735
St. Jos. R. R. V. Chase 43
St. Louis V. Eiskine 668
V. Shields 1142, 1153
St. Louis Gas Light Co. «. St. Louis 939,
1249
St. Louis Ins. Co. v. Cohen 114
St. Louis R. R. V. Eakins 77
St. Luke's Home v. Assoc, for Ind.
Females 996, 1006
Stoate V. Rew 490
V. Stoate 786
Stobart v. Drydeu 731
Stober v. McCarter 429
Stockbridge v. Hudson 1019, 1021
V. Quicke 653
V. West Stockbridge 732,
733, 1352, 1353
1359
Stockdale v. Hansard 295, 1240
V. Young 151
Stocken v. Collin 1323, 1324, 1325
Stockett V. Jones 820
StockBesh v. De Tastet 1099, 1120
Stockham v. Stockham 1103
Stockton ». Demuth 549, 1173
V. Johnson 1360
V. Williams 201
Stockwell V. Holmes 573
V. McCrackeu 808
V. Ritherdon 893
V. Silloway 33, 758
Stoddard v. Chambers 732
V. Kelly 357
V. Mix 132
V. Thompson 763, 780
Stoddart v. Grant 892
V. Penniman 622
V. Shetuoket 1147
Stoddert v. Vestry 1014
Stoever v. Whitman 655
Stoffer V. State 412
Stokes V. Macken 291
V. Salomons 1240
V. State 347, 562, 563, 565
Stoll V. Weidman 466, 478
Stolp V. Blair 570
Stonard t;. Duukia 1149
Stone, in re 630
, Stone V. Aldrich 937
V. Bradbury 961
V. Browning 875
V. Corell 446
1'. Dickinson 773
V. Greening 1005
V. Grubbam 1312
V. Hubbard 718, 937, 972
V. Sanborn 1103
V. Segur 265
V. Sprague 901
V. Strange 744
V. Symmes 880
VOL. II. 49
Stone V. Thomas
151
V. Vance
1066
V. Watson
SI 2
V. Wilson
920
Stonecipher v. Hall
468
Stoner v. Ellis
120, 153
Stones V. Byron
420
V. Menhem
346
Stoops V. Smith
940, 942, 947
Storer v. Gowen
1103, 1108
Storey v, Lennox
594
Storrs t). Baker
1144
Story V. Finnis
1115
V. Lovett
725
V. Saunders
392
Stott V. Rutherford
1149
.Stoundenmeier v. Williamson 545, 665
Stout V. Rasseil 541
Stouvenel v. Stephens 1276
Stovall V. Bank 263
V. Banks 770
Stow V. Converse 47
V. People 147
V. IT. S. 1143
V. Wyse 1039
Stowe V. Querner 74
V. Sewall 1133
Stowell V. Chamberlain 785
V. Eldred 923
II. Robinson 901, 904, 906
Straey v. Blake 1186
S trader v. Lambeth 923
Stradjr V. State 1206
Straflrord, ex parte 1151
Strang, ex parte 1315
Strang v. Hirst r362
Stratford v. Ames 141
V. Greene 108
V. Sanford 646
Straton v. Rastall 1064, 1088
Stratton v. State 569
Strauss's Appeal 863
Strauss V. Francis 1186
Straw V. Greene 466
Strawbridge v. Cartledge 1044, 1045
V. Spann 504, 1173
Streaks v. Dyer 988
Street v. Hall . 1064
V. Ins. Co. 814
V. Street 820, 1204
Streeter u. Poor 1183
Strevel v. Hempstead 510
Strickland v. Poole 205
V. Wynn 468
Strickler v. Burkholder 356
V. Todd 1349, 1350
Strimpfler v. Roberts 640, 643
Stringer v. Davis 674
V. Ins. Co. 814
Stringfellow v. State 499
Strode v. Churchill 100
V. Magowan 1298
V. Russell 993
769
TABLE OF CASES.
Strong V. Bradley 825
V. Brewer 696, 707
V. Dean 466
V. Dickenson 389
V. Place 358
V. Slicer 1081
V. Stewart 1032
V. Wheaton 761
Stronghill v. Buck 1039, 1083
Strother v. Barr 60, 61
V. Lucas 300
Stroud, in re 800
Stroud V. Springfield 640
V. Tilton 682
Struthers K. Eeese 117
Stuart V. Binsse 677
V. Bute 817
V. Kissam 1108
V. Lake 393
Stubbs V. Leavitt 1302
Stuckey v. Bellah 451
Studdy V. Sanders 589, 1119
Studley v. Hall 601
Stuhlmuller v. Ewing 429
Stumm V. Hummel 346
Stump V. Henry 838
Sturge V. Buchanan 155, 572, 1103, 1106
Sturgis V. Gary 961
V. Hart 147
Sturtevant v. Eandall 64, 988
V. Eobinson 132
V. Sturtevant 1032
Sudler v. Collins 624
Suffern v. Butler 939
SuffielJ V. Brown 1346
Sugar V. Davis 1089
Sugartw. Mays 958
Sugden V. Lord St. Leonards 139, 414,
1008
Suggett V. Cason 883
Suisse V. Lowther 974
Suit V. Bpnnell 545
Sullivan v. Collins 408
V. Deadman 123
V. Goldman 1284
V. Kelly 1298
K. Ins. Co. 1172
V. R. E,. 357
V. Sullivan 723, 993
Sullivan Granite Co. v. Gordon 1165
Sulphen v. Norris 1348
Summers, in re 888
Summers v. Ins. Co. 1031
V. Moseley 550
V. V. S. Ins. Co. 1019
Summerville v. E. R. 1142, 1151
Summons v. State 177, 178, 180, 514
Sumner v. Blair 529
V. Cook 1165, 1302
V. Crawford 551
V. Sebec 645, 653, 1355
V. State 11
V. Stewart 967
770
Sumwalti). Ridgely
Sunday v. Gordon
Sunderland, in re
Supt. V. Atkinson
Surcome v. Pinniger
Surney v. Barry
Suse V. Pompe
Susq. Boom Co. v. Finney
Susquehanna Bank v. Evans
Susquehanna Bridge v. Ins. Co.
1061
414
890
7,12
882
627
958
986
1059
694,
1059
Susquehanna E. R. v. Quick 95, 824
Sussex Peerage case 77, 87, 210, 214,
219, 226, 227, 228, 245, 306, 307, 308
Sutcliffe V. State 106
Sutherland v. Briggs 909
Sutphen V. Cushmau 366, 1314
Sutter V. Lackman 366, 1167
Sutton V. Bowker 939
V. Buck 1336
V. Davenport 1265, 1268
V. Drake 282
V. Gregory 251
V. Kettell 1070
V. Sadler 356, 357, 1252
I'. Tatham 298
Suyetjj. Doe • 668
Swain v. Chase 1308
V. Ettling 1363
V. Lewis 162
V. Saltmarsh 23
Swamscot v. Walker 549
Swan V. Hughes 120
. V. Middlesex Co. 446
V. Nesmith 879
V. North Brit. & Australasian
Co. 1151
c. O'Fallon 718
Swann v. West 1127
Swansea Vale R. E. u. Budd 752
Swartwout v. Payne 763
Swatman v. Ambler 873
Swearingen v. Harris 688
Sweatland v. Tel. Co. 1173
Sweeney v. Booth 515
Sweet V. Brackley 808
V. Lee 869, 873, 901, 937, 940,
954
V. McAllister 1061
V. I'arker 1031
V. Sherman 559
Sweeting v. Fowler 1273
Sweetland v. Tel. Co. 1180
Sweetzer v. Bates 1049, 1165
V. Lowell 718, 977
Sweigart ti. Berk 781
V. Lowmarter 674
V. Richards 704, 714, 719
Swenson v. Aultman 1175
Swetland v. Swetland 1031
Swett V. Shumway 561, 566, 940, 961
Swick V. Sears 1050
Swift ». Applebone 174, 1295
TABLE OF CASES.
Swift V. Lee 1049
V. McTiernan 639, 1084
V. Pierce 678
». Swift 1284, 1285
u. The City of Poughkeepsie 63
V. Winteibotham 931, 1019
Swiggart v. Harber 982
Swinburne v. Swinburne 1035
Swindell V. Warden 1101
Swinfcn v. Ld. Chelmsford 1186
V. Swinfen 1186
Swing V. Sparks 683
Swinnerton v. Ins. Co. 175
V. M. of Stafford 197
Swinton v. Bailey 900
Swisher v. Swisher's Adm'r 1042
Swope V. Forney 1042
Sjbray v. White 1190
Syers v. Jonas 969
Sykes !'. Bonner 790
V. Dixon 869
V. Dunbar 601, 604
V. Keating 980
V. Lewis 1207
Syler v. Eckhart 856
Sylvester v. Downer 1059
Syme v. Stewart 300
Symmes v. Major 325
Symonds v. Gas Co. 1132, 1133
V. Peck 430, 478
Syphcr ». Savery 1183
T.
T. V. D.
438, 1320 a
T. V. J.
414
Tabb V. Cabell
838
Taff II. Hosraer
1252
Taintor v. Prendergast 950
Talbot V. Hodgson 732, 1314, 1359
t. Lewis 188
V. McGee 1184
V. Seeman 638
Talcott V. Ins. Co. 123
Taliaferro v. Pryor 640
Tallmau v. Bresler 879
V. Kearney 482
V. White 923
Talmage ct al. v. Burlingame et al. 476
Talniau v Franklin 872
Tarns V. Bullitt 1140
V. Hitner 726
V. Lewis 838, 1140
Tandy w. Masterson 518'
Taney v. Kemp 537
Tann v. Tann 1004
Tanner 1). Hughes 1226,1323
V. Taylor 522
Tapley v. Martin 120
Taplin i;. Atty 154
Tapp I). J.ee 1263
Tappan, in re 533
Tappan v. Beardsley
832
V. Norvell
97
Tarbell v. Bowman
1028
Tarbox v. McAtee
1353
a. Steamboat Co.
357
Tarden v. Davis
366
Tardif v. Baudoin
408, 566
Tarleton v, Johnson
492
V. Shingler
626
V. Tarleton
801, 806
Tarpley v. Blabey
32
Tarte v. Darbey
859
Tate V. Reynolds
864
V. Sullivan
1323
V. Tate
414, 433
Tatham v. Drummond
973
V. Wright
512
Tatman v. Barrett
942, 1014
Tattenhall v. Parkinson
1114
Tatum V. Brooker
909
V. Goforth
1052
Tanlman v. State
422
Taunton Bk. v. Eichardson 142, 1059
Tayler v. Ford 1302
V. Parry 636
V. Stringer 518
Taylor d. Atkyns v. Horde 1312
Taylor, ex parte 653, 654
Taylor Will case 676, 720, 1009
Taylor v. Barclay 282, 323, 338
u. Barron 802
I/. Beech 882
V. Boardraan 288
V. Boggs 992
V. Briggs 961
V. Burgess 1061
V. Burn sides 66
V. Carpenter 101
V. Castle 779
V. Clark 147
V. Clay 961
V. Coleman 678
V. Com. 562
V. Dougherty 1352
V. Forster 579, 582
V. Galland 1015
V. Gould 226
V. Grand Trunk Railway 512
V. Hawkins 1263
V. Henderson 1092, 1192
V. Horde 1249
V. Hughes 1151
V. Jennings 542
V. Johnson ' 683
V. Jones 980
V. Kelley 466, 478
V. Kilgore 100
V. Kinloch 1164
u. Larkin 600
V. Linley 864
V. Lusk 262
V. Manners 1017
V. Marshall 1165
771
TABLE OF CASES.
Taylor v. Monnot
509
V. Moore
1019
V. Moseley
626, 629
V. Parry
945, 1005
V. Paterson
490
V. Peck
1092
V. Pettibone
763
V. Phelps
802
V. Pratt
869
V. Preston
1044
V. Rennie
337
V. Richardson
1006
V. Eiggs
60
V. Robinson
1165
V. Eobt. Campbell
76, 617
. V. R. R.
268, 510
V. Ruudell
756
V. Runyan
288
V. Sayre
944
V. Sindall
758
V. Smith
565, 569
V. Sotolingo
961
V. Stray
1243
V. Strickland
1062
V. Sutherland
709
«. The Robert Campbell 1128
V. Tucker 683, 684
V. Wakeeeld 875
V. Williams 36, 1188
V. Witham 229
Teal V. Auty 866
V. Sevier 726
Teall V. Barton 509
V. Van Wyck 137
Tebbetts v. Flanders 515
Teed v. Teed 874
Teel V. Byri^e 489
Teerpenning v. Insurance Co. 446, 510
Teese v. Huntingdon 481, 563
Teft V. Size 77
Telegraph Co. v. Colson 1324
Tempest v. Fitzgerald 875
V. Kilner 864
Temple, ex parte 389
Temple v. Marshall 986
V. Pomroy 967
V. Pullen 632
Templeton v. Morgan 337
Tenbioke w. Johnson 685
Ten Eyck w. Runk 1156
Tennant v. Hamilton 549, 559
Tenney v. East "Warren Lumber Co. 23
V. Evans 1077, 1208
Tenny i'. Jones 1352
Terbell v. Jones 123
Terrell v. Colebrook 60, 61, 63, 65
V. Walker 937, 939
Territory v. Nugent 538
Territt v. Woodruff 288, 314
Terry v. Ashton 665
V. Hammonds 782, 786
V. Huntington 816
V. Hutchinson 51
772
Terry v. Ins. Co.
1247, 1252
V, McNiel
527, 674
V. State
417
Tesson v. Ins. Co.
1019
Tevis V. Hicks
262, 1102
Texas v. Chiles
464, 489
Thacher v. D'Aguilar
764
V. Phinney
115, 482, 508, 955
V. Powell
Thallhimer v. BrinckerhoflF 1 1 70, 1 1 73,
1323, 1330
Thames v. Erskine 109
Tharp v. Com. 1302
Thai-pe v. Gisbnme 708
Thatcher v. D'Aguilar 797
V. Dinsmore 1362
Thayer v. Barney 1314
V. Boyle 47, 562
u. Chcsley 718
V. Davis 452
V. Deen 684
V. Hollis 770
V. Ins. Co. 153, 663
V. Luce 909
V. Rock 866, 871, 901
V. Stearns 135, 136, 641, 1265
I). Thayer 34, 414, 433, 478
V. Torrey 946, 1053
V. Viles 10*2
The Acorn 979
The Adams 511
The Ann 1240
The Arco 357
The Atlanta 1258
The Atlantic 695
The Bella 1283
The Bellerophon 604
The Catherina Maria 639, 647
The Clement 435
The Concordia 331
The Confederate Note Case 948
The Delaware 1070
The Eddy 1070
The Enterprise 1174
The Griefswald 814
The Helena 814
The Hunter 1264
The Invincible 1070
The J. W. Brown 1070
The Jeiferson 339
The King v. Hunt 81
The Lady Franklin 1070
The Live Yankee 362
Thelusson v. Cosling 636
The Maria das Dorias 639
The Mary 837
The Merrimac 387
The Minne 338
The North American Fire Insur. Co.
V. Throop 1172
The Pennsylvania 290
The PeterhofT case 340
The Pizarro 1264
TABLE OF CASES.
TheEeeside 958, 1070
The Richard Busteed 775
The Rio Grande 815
The Scotia 285
The Short Staple 357
The Slavers 11
The Spring 331
Thetford's case 639
The Tillie 1264
The Vincennes 814
The Wellington 1070
The Wm. H. Northrop 338
Thistle V. Frostburg 507
Thol V. Leask 490
Thomas, in re 226, 229, 381, 888
Thomas v. Arthur 1124
u. Bank 115
V. Barbour 431
u. Barker 1044
V. Bartow 1017
V. Beekman 314
V. Bowman 760
V. Chicago 1035
V. Com. 601, 887
V. Connell 266
V. Cook 860, 880
V. Dakin 290
V. David 491, 561
V. Tie GrafFenreid ' 415
V. Dickinson 864, 1015
V. Dunaway 32
V. Dunn 749, 751, 753
V. Foyle 1336
V. Harding 154
V. Hite 782
V. Hubbell 770
V. Isett 509
V. Jenkins 187, 188
V. Kennedy 931
V. Kenyon 439
V. Ketteriche 811
V. Kinsey. 1184
V. Le Baron 727, 730
V. Maddan 429, 1215
V. Magruder 1 1 1
V. McCormack 1031
V. Morgan 1090
V. Murray . 357
V. Newton 535
V. Price 521
V. Pullis 1143
V. Rawlings 584
, V. Robinson 99
V. Eutledge 1175
V. State 515, 574
V. Steinheimer 1173
V. Thomas 938, 992, 1001, 1276
V. Truscott 923
V. Wallace 727
W.Wheeler 1019,1031,1160
V. White 513
V. Williams 902
V. Wright 904, 1033
Thomasson v, Driskell 109
V. State 574
^homaston v. Stimpson 1031
Thompson's Appeal 797
Thompson v. Abbott 702
V. Ashton 958, 959
V. Bank 118
w. Blackwell 180,515
V. Blanchard 549, 550
V. Bowman 1165
V. Chase 640
V. Davenport 951
V. Donaldson 810, 1277, 1278
U.Drake 1168,1207
V. Falk 583
tf. Gould 856
«. Hall 888
V. Haskell 337
V. Hempenstall 999
V. Herring 1165
V. Hopper 1283
V. Jackson 1017
V. Kyner 1252
V. Lee 353
V. Mankin 807
V. Manrow 101
V. Mapp 77
V. McKelvey 684
V. Menck 876
V. Monroe 315
V. Mosely 29
V. Phillips 981
V. Porter 678
V. Probert 980
V. Richards 61
V. Roberts 780
r. R. R. 108,114,361,382,
604, 755
V. Simpson 1017
V. Small 1259
V. Smiley 528
V. Stevens 21
V. Stewart 110, 319, 814
V. Thompson 151, 1199, 1264
V. Trail 1259
V. Wharton 366
V. Whitman 795, 796, 808
V. Wilcox 942
Thomson u. Austen 1090,1108
V. Davenport 75
V. Hopper 682, 688
V. Scott 909
V. Wilson 857
Thorington v. Smith 940, 948, 1058
Thorn v. Helmer 482
V. Moore 549
Thomburgh v. Hand 545
V. Newcastle R. R. 1046
Thorndell v. Morrison 84
Thorndike v. Boston 1097
Thorne v. WoodhuU 979
Thornes u. White 1119
Thomhill v. Thomhill 377
773
TABLE OF CASES.
Thornton v. Adkins 490
V. Appleton 1253
V. Campton 641
V. Charles 75, 1016
V. Hook 528
V. Ins. Co. 444
V. Kempster 75
V. Meux 75
V. Thornton 508, 550, 575
Thorp V. Ross 1014
Thorpe v. Cooper 788
Thouvenin v. Rodrigues 797
Thrall v. Todd 147
Threadgill v. White 1094
Thresh w. Rake 901,904
Thurman v. Burt 931
V. Cameron 741, 1052, 1053
V. Mosher 468
V. Virgin 562
Thurmond v. Clark 1029
V. Trammell 180, 514
Thurst V. West 988
Thurston v. Cornell 482
V. Franklin College 864
V. Hancock 1346
V. Percival 315
V. Slatford 90
V. Whitney 395
Thurtell v. Beaumont 1246
Thynne v. Glengall 882
V. Stanhope 900
Tibbals v. Jacobs 1167
Tibbetts v. Flanders 180, 515, 559, 1109
V. Haskins 444
Tibbs V. Allen 795, 1302
Tibeau «. Tibeau 1031
Tice V. Reeves 63
Tichborne case 9, 11, 13, 14, 24, 72, 207,
254, 409, 410, 416, 676, 1277, 1283
Tickel v. Short 1140
Tickham v. Arnold 1349
Tickle V. Brown 237, 1161
Ticknor v. Roberts 123
Ticonic Bk. v. Johnson 920
0. Stackpole 123
Tidmarsh v, Grover 624
Tiley v. Cowling 836, 837
Tilghman v. Fisher 148, 1133
Tilley v. Damon 1099
TiUotson V. Warner 826
Tilly V. Tilly 1274
Tilton 1). Bcecher 420, 431, 432
V. Gordon 789
Timms v. Shannon 1050
Timp V. Dockham 698
Timson v. Moulton 1245
Tindall, in re 1274
Tindall v. Mclntyre 687
V. Murphy 828, 834
Tindle v. Nichols 601
Tingley w. Cowgill 452
Tinney v. Steamb. Co. 444
Tinnin v. Price 726
774
Tioga County v. South Creek Town-
ship 608
Tioga R. Co. v. Blossburg E. E. 784
Tippins V. Coates 495
Tippits V. Walker 693, 864
Tisdale v. Ins. Co. 223, 810, 820, 1276,
1277, 1278
Tisdall V. Parnell 199
Titford V. Knott 712, 719
Titlow w. Titlow 45 1 , 1 1 99, 1 253
Titus V. Ash 556, 565
V. Kimbro 1315
Tobin V. Gregg 1050
V. Shaw 132
Toby V. Lovibond 800
Tod V. Winchelsea 180
Todd u. Bank 1175
V. Campbell 1033
V. Hardie 415
V. Warner 446
Todemier v. Aspinwall 1318, 1319
Toland w. Sprague 1140
Toledo E. E. v. Goddard 1 1 73, 1 1 74
V. Williams 528, 541
Toleman v. Portbury 356
ToU Bridge Co. v. Betsworth 1 170
Tolman v. Emerson 194, 198, 643, 644
V. Johnstone 548
Tome V. E. E. 437, 676, 713, 716, 720
Tomkins v. Ashby 1112
V. Atty. Gen. 639
V. Saltmarsh 1102
Tomlin v. Hilyard 507
Tomlinson v. Collins 820
Tompert v. Lithgow 1308
Tompkins v. Philips 1085
Toogood V. Spyring 1263
Tooker w. Gormer 1120
V. Smith 855
V. Thompson 97, 101
Toole V. Nichol 550
V. Peterson 185
Toomer v. Gadsden 682
Toomey u. E. E. 359
Toosey v. Williams 1330
Topham v. McGregor 80, 522
Topley V. Martin 120
Topliff K.Jackson 1132
Topper V. Snow 357
Toppin V. Lomas 863
Topping V. Van Pelt 1163 ft
Torbert v. Twining 992
Torrens v. Campbell 1026
Torrey v. Berry ' 64, 988
V. Fuller 73
Totten V. U. S. 597, 604
Touchard v. Keyes 115
Toulandon v. Lachenmeyer 289
Toulmin v. Austin 740
V. Price 149
Tonrtellot v. Rosebrook 359
Tousley !). Barry 1163
Tower v. Richardson 1058
TABLE OF CASES.
Towle V. Blake
268
Town V. Needham
423
Town of Lebanon v. Heath
114
Towne v. Bossier
1302
V. Lewis
1259
V. Smith
487
Townend v. Drakeford
75
Towner v. Lucas
1067
Townley v. Watson
897
Towns V. Alford
500
Townsend v. Brundage
511
V. Coleman
683
V. Downer
733, 1348
V. Graves
47
V. Houston
910
V. Johnson
1156
V. Maynard
1215
V. Sharp
856
V. Way
826
Townsend Bank v. Whitney
520
Townshend v. McDonald
1350
V. Stangroora
1021
V. Townshend
377, 451
Townsley v. Sumrall
123
Tracy Peerage 219, 220, 454, 718, 722
Tracy v. Athertou 1350
0. Jenks 1053
V. Kelley 427, 429
1). McMauus 482, 1077, 1088,
1179
V. Merrill 760
V. Peer 210
Trader.!). McKee 99
Trafton v. Hawes 466
V. Rogers 983, 990
Traill v. Baring 1145
Trammell !). Hemphill 180,514
!). Pilgrim 920
V. Roberts 726
V. Thurmond 643
Trans. Co. v. Downer 363
Trasher v. Everhart 302, 303
Tratter w. Schools 1318
Travis v. Brown 558, 714, 719
V. Morrison 998i
Treadway v. R. R. 1174, 1184
Treadwell v. Bucldey 1045
a. Joseph 357, 358
V. Reynolds 927, 930
Treat !>. Barber 175
Treftz V. Pitts \ 986
Tregany w. Fletcher 324
Trego V. Lewis 1192
Trelawney v. Colman 225, 269, 512, 978
Tremain v. Barrett 380
Trent v. Hunt 1259
Trenton Ins. Co. i*. Johnson 358
Trepp V. Barker 431
Tress v. Savage 855
Trevanion, in re 889
Trevor v. Wood 76
Trewhitt v. Lambert 77
Tribe v. Tribe 886
Trigg V. Conway 101
V. Read 1017
Trimlestown v. Kemmis 631, 1156, 1157
Trimley v. Vignier 316, 962
Trimmer «. Bayne 973, 974
Triplett o. Gill 116,1047
Tripp V. Bishop 864
V. Hasceig 1021
Triscoll V. Newark Co. 1296
Trott V. Irish 357, 1042
V. McGarock 833
V. Skid more 888
Trotter v. Latson 377
Troup !). Sherwood 669
Trout w. Goodman 10)9
Troutman v. Vernon V75
Trowbridge v. Wetherbee 902
V. Wheeler 253
Troxdale v. State 412
Troy V. Smith 823
V. Troy R. R. 770
Truby v. Byers 726
V. Seibert 836, 1184, 1185
Tracks v. Lindsey 1031
True V. Biyant 616
V. Sanborn 1287
Truelove v. Burton 1188
Trueman v. Loder 937, 950, 958
V. Lore 1052
Trull V. True 702
Trullinger v. Webb 1050
Truman's case 84
Trumbull v. Gibbons 1 252
Truro, in re 890
Tniscott V. King 1026
Trustees v. Bledsoe 525, 838, 1119
w. Cokely 1190,1191
V. Dickinson 1342
V. Ins. Co. 883
V. Peaslee ' 996
V. Stetson 1058
Tryon v. Rankin 302
Tuberville v. Stamp 1294
Tucker v. Bradley 129
V. Burris 120
V. Burrow 1035
V. Call . 1246
V. Hood 1101
• V. Mass. Central R. R. 446
V. Meeks 1249
V. Moreland 1272
V. Morrill 1301
V. Peaslee 1132
V. Seamen's Aid Society 993
V. State 324
V. Talbot 1058
V. Tucker 1168
V. Welsh 77
V. Williams 409
Tuckey v. Henderson 973
TuBF V. Warman 331
Tufts V. Charlestown 1039, 1138
Tuggle V. McMath 963
775
TABLE OF CASES.
Tuggle V. R. E.
1180
Tyler v. Wilkinson
1350
Tnll V. Parlett
1044, 1048
Tynan «. Paschal
900
TuUey v. Alexander
TuUis V. Kidd
422
Tyng V. R. R.
726
439
V. V. S. Submarine Co.
157
Tullock V. Cunningham
420
Tyrrel v. Woodbridge
63
V. Dunn
1199
Tyrwhitt v. Wynne
46
Tupling V. Ward
483
Tyson v. Tyson
992
Tapper v. Foulkea
634
V. Kilduff
838
Turberville v. Gibson
1031, 1049
V.
Turley v. Logan
290, 295
Turneaux v. Hutchins
21
V. V. J.
414, 433
Turner v. Barlow
335
UdderEook's case
676, 1277
V. Belden
1101, 1199
Uhl V. Com.
397, 562
V. Chcesman
1252
Uhler V. Browning
1200
V. Coe
1217
Uhlich V. Muhlke
366
V. Collins
367
Ulen V. Kittredge
873
V. Cook
888
TJlrich V. Voneida
797
V. Coolidge
875
TJmphreys v. Hendricks
726
V. Crisp
1135
Underwood v. Campbell
856, 869
V. FoxaU
412
V. Courtown
1090
V. Green
725
V. DoUins
693
V. Hnbbell
880
V. Hossack
881,1365
V. Kerr
1032
V. Lane
130
V. Lewis
1133
V. Linton
1127
V. Mcllhaney
489
V. Simonds
1058
V. Moore
727
V. Waldron
511
V. Pearte
393
V. West
1023
V. Rogers
123
V. Wing
1281
V. Singleton
61
Union v. Plainfield
208, 219
V. Turner
931, 1050
Union Bank v. Knapp
238
249, 681,
V. Waddington
100, 109
1131
V. Watterson
1352
V. Middlebrook
123
V. Wilcox
936
Union Bk. v. Call
662
V. Yates
1137
V. Coster
879
Turney v. Bailey
584
V. Fowles
123
V. Thomas
331
V. Gregory
123
Turnipseed v. Goodwin
1132
Union Canal v. Keiser
980
V. Hawkins
708
e/. Loyd
872, 1127, 1156,
• V. McMath
1063
336, 1362
Turnpike Co. v. Myers
1069
Union Mut. Ins. Co. v. Wilkinson 929
V. Phillips
1068
Union Pac. R K. Co. Appeal
290
V. Thoi-p
1068
Union P. E. R. v. U. S.
980 a
Turpin v. Brannon
821
Union R. R. v. Riegel
1173
Turquand v. Knight
581, 592
Union Savings Co. v. Edwards
1173,.
Turrell v. Morgan
881, 1126
1212
Turtou V. Barber
579
Unis V. Charlton
555
Tuttlew. Brown
1190
United States Bank». Carneal
1323
V. Cooper
' 1200
Unity Bank, ex parte
1151
V. Bobmson
520
University v. Maultsby
782
V. Russell
401
Unthank v. Ins. Co.
617,
872, 1090
V. Turner
1192
Upham V. Wheelock
1175
Tutton V. Darke
335
Upton V. Archer
633
Twemlin ti. Oswin
1283
V. Tribilcock
1069,
1170,1240
Twiss V. George
468
Urkett V. Coryell 122, 518, 670, 732
Twyman v. Kuowles
60,77
Ury V. Houston
115
Tyler v. Bank
123
U. S. V. Acosta
114, 120
V. Chevalier
1302
V. Addison
831
V. Dyer
147
V. Araedy
319
V. Mather
1165
V. Anthony
1240
V. Pomeroy
551
V. Appleton
1346
V. Smith
833
V. Babcock
377, 595, 1323
V. Todd
720
V. Bales of Cotton
338
776
TABLE OF CASES.
U. S. V. Barker
175
U. S. «. Ross
1226, 1318
V. Boyd
61
V. Sharp
648
V. Britton
90
V. Simpson
708
V. Brockius
397
V. Smith
540
V. Brown
540, 1138
V. Spalding
623, 627
V. Burns
30, 335
V. Sterland
177
V. Butler
385
V. Strother
533
V. Cases of Champag
ae 175, 708,
V. Sutter
142
1127
V. Teschmaker
282
V. Castro
185, 194
V. The Peggy
317
V. Caton
494
V. Turner
291
V. Chamberlain
713, 717, 719
V. Vansickle
562
, 563, 565
V. Charles
601
V. Wagner
319, 323
V. Cigars
464
V. Watkins
549
t;. Coin
338
V. Weed
1318
V. Cole
11
v. White 177, 180,
396,
514, 544,
V. Coolidge
388, 494
556,
559,
562, 1206
V. CoiTvin
114
V. Wiggins 110
,119
,319,371
V. Craig
712
V. Willard
509
V. Delespine
119, 135, 136
V. Wilson
397, 574
V. Dickenson
397, 541
V. Wiltberger
464
V. Dickinson
559
V. Winchester
152
V. Doebler
148
V. Wood
97
177, 180
V. Douglass
11
U. S. Ex. Co. V. Anthony
510
V. Duval
965
U. S. Telegraph Co. v. Wenger
510
V, Erskine
325
Usher v. Gaither
1360
V. Gausseu
108, 114
V. Pride
120
V. Gibert
71,493,648
Usticke V. Rawden
900
V, Gildersleeve
1180
XJtica Bank v. Hillard
742
V. GrifSth
116
TJtiea Ins. Co. v. Badger
709
V. Hayward
357, 368
Utiey V. Merrick
397
V. Holmes
551
Utterton v. Robins
890
V. Howland
640
Uxbridge v. Stareland
534
V. Hudland
532
V. Jackalow
664
V. Johns
114, 289
V.
V. Johnson
369
V. Jonas
1304
Vacher v. Cocks
262, 266
V. Keen
708, 719
VaU V. Foster
1363
V. Kennedy
395
V. McKernan
114, 13.53
V. Kuhn
640, 643, 1089
V. Strong
1138
V. Laub
740
Vaillant v. Dodemead
538, 580
V. La Vengeance
339
Valentine v. Piper 726, 727, 1347, 1349
V. Learned
1240
Vallance v. Dewar
961, 963
V. Linn
626
Vallee v. Dumergue
803
V. Lotridge
833
Vallette v. Canal Co.
1022
V. Macomb 177
178, 180, 514
Valpy V. Gibson
870
V. Martin
11
Vanauken's case
441,451
V. Masters^
562
Vanbiber v. Beirne
1248
V. McGlue'
452
Van Blarcom v. Kip
1157
V. McRae
536
Van Bokkelen v. Taylor
920
V. Mitchell
120, 648
Van Buren v. Digges
920
V. Moses
533, fi04
V. Wells
21
u. Nelson
633
Van Buskirk v. Day
931
11. Ogden
317, 338
V. Mulock
288
V. Omeara
259
Vance v. Caldwell
683
V. Porter
397
V. Lowther
626
, 627, 628
V. Price
772
V. Smith
1164
V. Front
707
Van Cort v. Van Cort
433
V. Eeiter
778
Van Corllandt v. Tozer
111
V. Reyburn
129
Vandenbergh v. Spooner
871
V, Reynes
317
Vander Douckt v. Thellusson
306, 307,
V. Rodman
lio, 319
308
777
TABLE OF CASES.
Vanderkarr v. Thompson
Vanderpoel v. Van Valkenburgh
1026
811,
1278
Vanderveer, in re 396
Vandervoort M. Smith 110
Vanderwerker v. People 339
Van Deusen v. Tonng 446
Vandine v. Burpee 444, 446, 448
Van Donge v. van Donge 1020
Van Doren v. Van Doren 726
Van Dusen v. Parley 1019
V. Worrall 1031
Vandyke v. Bastedo 1162
Van Dyne v. Thayre 726
Vane case 404
Vane v. Vane 184, 1297
Van Eman v. Stanchfield 923
Van Hook v. Man. Co. 661
Vanhorn v. Frick 61, 864
Van Huss v. Bainbolt 574
Van Leu ven K. First Nat. Bank 1180
Van Loon v. Davenport 909
Vanmeter v. MeFaddin 863
Van Ness v- Washington 920, 1019
Van Omeron v. Dorrick 317, 671, 1302
Van Ostrand v. Reed 1066
Vanquelln v. Bonard 801
Van Rensselaer v. Aikin 838
V. Kearney 1039
V. Vickery 979, 1313
V. Witbeck 63
Van Sandau v. Turner 324
Van Sickle v. People 716
Van Storch v. Griffin 52, 100
Van Straubenzee v. Monck 890
Van Studdiford v. Hazlett 1026
Van Swearingen v. Harris- 688
Van Trott v. Wiese 1017
Van Tuyl v. Van Tuyl 84
Van Vaikenbergh v. Bank 463
Van Vechten v. Griifiths 814
V. Hopkins 975
V. Terry 766
Van "Wart v. WoUey 1184
Van Wyck v. Mcintosh 713, 718
Varcias v. French 178
Vardeman v. Lawson 947
Varick V. Briggs 1165
V. Edwards 769
Varner v. Nebleboro 1363
Varona v. Socan-as 481
Vassault v. Austin 828, 830, 834
V. Edwards 872, 873
V. Seitz 324
Vasscr v. Vasser 1031
Vastbinder v. Metcalf 518
Vastine v. Wilding 1331
Vathir V. Zane 366
Vattier v. Hinde 732
Vaughan v. Hancock 863, 902
V. Martin 523, 524
V. O'Brien 699, 782
V. Perrine 538, 541
778
Vanghan v. R. R. 357, 360
V. Warnell 253
V. Worrall 393
Vaupell V. Woodward 864
Vawter v. Baker 357
Veal V. Veal 466
Vechte v. Brownell 1042
Vedder v. Wiikins 151
Veithe v. Hagge 357, 393, 681
Venable v. Bank U. S. 1167
V. McDonald 944
Venning v. Hacker ' 683
Vennum v. Thompson 1163
Vent V. Pacey 583
Verdin v. Robertson 1128
Verhein v. Strickboin 781, 782
Vermont R. R. v. Hills 1050
Vernard v. Hudson 1070
Vernol v. Vernol 1314
Vernon v. Kirk 726
V. Tucker 569
Verry v. Watkins 51, 1203
Verzan v. McGregor 937
Vice V. Anson 155
Vicksburg R. R. Co. v. Pattou 256
Vilas V. Reynolds 677
Viles V. Moulton 151
Villa V. Rodriguez 1031
Villeboisnet k. Tobin 490
Ville du Havre 1264
Vimont v. Welch 1363
Vinal V. Burrill 1089
Vincent's Appeal 84
Vincent v. Bp. of Soder & Man 884
V. Cole 60, 61
V. Eames 1302
V. Germond 875
V. State 399
Viner v. Baker 1336
Vining v. Baker 1331
Vinnicombe v. Butler 888, 1314
Vinton v. Johnson 1277
V. Peck 713, 718
Virg. &, Tenn. R. R. v. Sayers 1174, 1176
Vogt v.. Ticknor 823, 1042
Volant V. Soyer 576, 585
Von Keller v. Schulting 937, 939
Vooght V. Winch 765
Voorhees «. Dorr 142
Voorhies v. Eubank 835
Vose ('. Dolan 624, 629, 632
V. Manly 96, 740
Vowles V. Young 201, 202, 217, 218, 220
Vrooman v. King 1165
Vulliamy v. Huskisson 210
W.
Wabash Canal v. Rheinhart 64^ 988
Wabash R. R. «. Hughes 295, 637
Wack V. Sorber 909
Waddams v. Humphrey 427
TABLE OP CASES.
Waddingham v. Loker
Waddington v. Bristow
V. Cousins
Wade's Succession
Wade V. Pelletier
V. Perey
0. Saunders
V- Simeon
V. State
V. Thayer
V. Wade
Wadley v. Bayliss
Wadsworth's Succes.
Wadsworth v. Hanshaw
V. Harrison
V. Marshall
V. Buggies
Wager t). Chew
V. Schuyler
Wagers v. Dickey
Waggemann v. Peters
Wagner v. Aiton
WagstafF v. Wilson
Wahrendorff v. Whittaker
Wails V. Bailey
Wair V. Bailey
Wait V. Fairbanks
V. Wait
Wake V. Harrop
Wakefield v. Alton
V. Buccleuch
V. Grossman
V. Boss
V. E. R.
366, 1033
866
713
427
1028
1050
931, 1049
393
399
569
151
941
1302
581
265
379
1129
1019
667
1305
686
733
1187
702
937
149, 220
961
1046
951
640
1345
1085
395, 396
1174, 1175, 1180,
1182
V. Stedman 1066
Wakeman v. West 670
Wakley v. Johnson 32
Walbridge v. Ellsworth 624
Walcott V. Hall 53
Walden v. Finch 555
V. Shelburne 620, 1134
Waldman v. Crommelin 466
Waldo V. Enssell 726
Waldron v. Jacob 901
V. Tuttle 205, 1331
Waldy V. Gray 134
Walker's case 1157
Walker, ex parte 382
Walker v. Ames 789
V. Armstrong 294
V. Bank 123
V. Bartlett 864
V. Beauchamp 150, 214
V. Bk. 624
V. Blassingame 411, 1160
V. Boston 446
V. Broadstock 1156
V. Christian 1064
V. Clay 1062
V. Collier 492
V. Curtis 238, 246, 248, 676
V. Davis 1301
Walker v. Dunspaugh
500,1199, 1209
V. Fields.
444
V. Forbes
253, 305
V. Geisse
1060
V. Hanks
1348
„. Hill
466
V. Mussey
875, 877
V. Pierce
1192
V. Richardson
860, 861
V. Sawyer
492
V. Sherman
1301
V. Smith
366, 367
V. State
290, 562
V. Taylor
466
V, Turner
123
V. Walker 451, 507, 574, 908
V. WeUs 953
V. Wheafly 1017
V. Wildman 582, 583
V. Wingfield , 490, 656
V. Witter 801
Walkup u. Pratt 1199
Wall's case 1324
Wall V. Arrington 1 021
V. Dorey 682
V. Williams 507
Wallace v. Agry 1363
V. Blair 900
V. Bradshaw 73
V. CoU 980
V. Cook 639
V. Cravens 697
V. First Parish 135
V. Fletcher 1350
V. Goodall 444, 518, 689
V. Harris 1266
V. Hull 1289
V. Hussey 1021
V. Jewell 626
i;. Kelsall 1064, 1207
V. Pomfret 974
V. R. E. 528
V. Small 1O90
V. Wilcox 151
V. Wilson 1064.
Wallen v. Forrest 490
Waller v. Harris 980 a
V. School District 147
V. State 782
Walling V. Eosevelt 1197
Wallis V. Beauchamp 106
V. Britton 429
V. Littell 927, 1026
WaUize v. Wallize 992, 993
Walls V. Bailey 961, 961 a, 963
V. McGee 625, 626, 627, 631, 645
Walmsley v. Child 149
Walpole V. Alexander 389
Walrath v. Ingles 877
Walrod v. Ball 265, 1284
Walsh's Will 723
Walsh V. Dart 314
V. Harris 64, 988
779
TABLE OF CASES.
Walsh V. Trevanion
584
Walsingham v. Goodricke
581, 583
Walston V. White
1008
Walter v. Belding
987
V. Cubley
624
V. Engler
1014
V. Green
263
V. Haynes
1323
V. Walter
910
Walters v. Morgan
863
V. Odom
1064
V. Short
622
Walthall V. Walthall
463
Walther v. Warner
358
Walton V. Eldridge
1362
V. Gavin
1315
V. Hastings
624, 626
V. Sugg
808
Wamsley v. Crook
466
V. Rivers
123
Wanby v. Curtis
1274
Wankford v. Fotherley
1145
WanneU v. Kern
1052, 1053
Warburton v. Parke
1349
Ward V. Barrows
1318
V. Camp
1019
V. Dulaney
1298
V. Bpsy
992
V. Evans
1363
V. Fuller
115
V. Herndon
47, 252, 253
V. Howe
1363
V. Johnson
771
V. Ledbetter
920, 936
V. Leitch
1177
V. Lewis
1314
V. Lord Londesborough 1324,
1330
V. Lumley
623, 861
V. Mcintosh
1331, 1332
V. McNaughton
942
V. People
535
V. Reynolds
446
V. Saunders
106
V. Shaw
875
V. State
538, 542, 5'65
V. Stout
1061
V. Valentine
566, 1092
V. Wells
178
<,-. Wheeler
678
V. Winston
1108
Warde v. Warde
587
Warden v. Jones
882
V. Mendocino County 835
Wardlaw v. Hammond 821
V. Wardlaw 1021
Ware v. Brookhouse 191, 1168
V. Cumberledge 864
V. Gay 359
V. Percival 779
u. State -425,432
W.Ware 451,556,559,570
Warfield v. Booth 946, 947
780
Warfield v. Lindell
1092
Waring v. Tel. Co.
V. Warren
1154
152
Warner's case
84
Warner v. Beers
290
V. Com.
84,87
V. Daniel
661, 1017
V. Henby
V. Lucas
1352, 1357
533, 538
V. Miltenberger
V. State
1002
399
V. Willington
Wamock v. Campbell
Warren Hastings case
Warren v. Anderson
871, 872, 873
931
664
701
V. Chapman
V. Cogswell
V. Comings
V. Crew
549
1050
788
920
V. Flagg
V. Gregg
V. Hall
99
992
837
V. Leland
866
V. Lusk
314, 796
V. Miller
930
V, Nichols
180
V. Stagg
V. Starrett
901, 904
1058
V. Wade
99
V. Warren
1323
Warriner v, Giles
639
Warrington v. Early
624, 626
Warrick w. Queen's College, Oxford 188,
190
Warshaner v. Jones 1165
Warwick v. Bruce 866
V. Foulkes 27, 32
V. Rogers 627
Wash i>. Foster 824
Washabaugh v. Entriken 100
Washburn v. Cuddihy 438, 448, 665, 666
V. People 398
w. Ramsdell 1199 a
V. Washburn 1220
Washer v. White 1081
Washington v. Cole 439
V. Scribner 604
Washington, &c. Co. v. Sickles 788
Washington Bank v. Ecky 622
V. Prcscott 250
Washington Co. Bk. v. Lee 120
Washington Ins. Co. v. St. Mary's 946
V. Wilson 1246
Wason V. Walter 286
Waterbury v. McMillan 699
V. Sturtevant 1166, 1167
Waterman v. Johnson 942
V. Peet 1180
V. Robinson 826
II. Soper 1343
V. Vose 626
V. Whitney 895, 900, 1010,
1011
TABLE OF CASES.
Waterpark v. Fennell
941
Waters v. Gilbert
641, 643
V. Hewlett
175
V. Waters
180, 516
Waterson v. Seat
1290
Watkins, in re
890
Watkins v. Causall
408
V. Holmau
127, 638
V. Kirkpatrlck
1060
V. Stockett
1028
V. Wallace
516
Watkyns v. Flora
992
Watrous v. MoGrew
118
Watry v. Hiltgen
450
Watson V. Anderson
454
V. Bank
796, 808
V. Bissell
1168
V. Bostwick
681
V. Brewster 201, 208, 210, 219,
709, 725
u.Byers 1089
V. Hopkins 689, 796
V. Ins. Co. 550, 646
u. Jacobs 880
V. King 648, 1184, 1277
V. Lisbon 177
V. Moore 32, 1103
V. Eandall 880
V. Spratley 864
V. Tindal 116
V. Wace 1151
V. Walker 110, 319, 520
V. Watson 833, 974
V. Williams 1090
Watterston v. E. R. 1044
Watts V. Ainsworth 873
V. Clegg 828
V. Frazer 32, 35
V. Ganett 392
V. Howard 686
V. Kilburn 696, 727
V. Sawyer 518
Waugh V. Bussell 623, 632
V. Fielding 482
V. Shunk 42
V. Waugh 942
Waughop «. Weeks 492
Way V. Arnold 1050
V. Butterworth 601
V, Lewis' 770
Wayddl v. Luer 1362
Wayland v. Moseley 1020
V. Ware 63, 80, 120, 126
Waymack v. Heilman 937, 1017, 1044
Weal V. Eea 974
Weale v. Lower 1274
Weall V. Eice 974
Weatherhead v. Baskerville 151, 992
V. Sewell 992
Weathers v. Barksdale 562
Weathersly v. Weathersly 1031
Weaver v. Alabama Co. 439, 490
V. Fletcher 1026
Weaver v. Lapsley 262
V. McElhenon 282
V. Price 813
V. Traylor 555
V. Wood 928, 1044, 1048
Webb, iti re 886, 1279
Webb V. Alexander 64
V. Byng 1002
V. Chambers 1140
V. Dean 1360
V. Fox 1331
V. Haycock 207
V. Heme Bay Improving
Qom. 1147
V. Kelley 265
V. Petts 188
V. Plummer 959, 961
V. Eichardson 201
V. E. R. 43, 440
V. Smith 593
V. St. Lawrence 727
V. Tavlor 390
Webber ». Hanke 563
V. E. E. 446, 450, 788
V. Stanley 1005
Webster v. Adams 815
V. Atkinson 23, 956
V. Blonnt 944
V. Calden H5, 553, 740, 1103
V. Canmanu 262
V. Clark 163
V. Gottschalk 1318
V. Harris 1019
;;. Hodgkins 937, 1015
V. Lee 788
t). Stearns 1194
V. Webster 238, 1028
V. Zielby 877
Weed V. Carpenter 705
V. Clark 869
V. Kellogg 1194, 1198
Weed Machine Co. v. Emerson 1083
Weedon v. Landreaux 1142
Week v.. Barron 1 181
Weeks v. Downing 100
V. Hull 565, 568
V. Maillardet 633
V. Sparks 187, 188
Weems v. Disney 1156
V, Weems 451
Wehlea. Spelman 1190
Wehrkamp v. Willett 431, 562
Weidensaul v. Eeynolds 986
Weidman v. Kohr 80, 120, 126, 1156,
1160,1163 a
Weidner v. Schweigart 1336, 1362
Weigand v. Sichel 723
Weigel's Succession 492
Weight!). E.E. 1175
Weinberg v. State 84, 85
Weiner v. Heintz 982
Weinrich v. Porter 1164, 1165
Weinzorplin v. State 555
781
TABLE OF CASES.
"Weir V. Hill 856, 883, 904
"Weisbrod v. Chicago B. E. Co. 640
"Weisenberger v. Ins. Co. 932
Weiss V. R. E. 1255
Welch V. Barrett 251
V. Lawson 864
V. Seaborn 1363
V. Walker 830
V. Ware 21
Welcome v. Batchelder 523, 60O
Weld ;;. Hornby 941
V. Nichols 823
Weldon v. Barch 540
Weleker v. Le Pelletier 1111
Welford v. Beezley 873
Welland v. Ld. Middle ton 639
Welland Co. v. Hathaway 1094
Welles V. Battelle 644
V. Yates 1028
Wellington v. Gale 980
Wellman, inre 990
Wells V. Bransford 490
V. Burbank 120
V. Calnau 866
w. 'Drayton 1136
V. Kisher 421
V. Fletcher 421
V. Hatch 682
V. Horton 883
V. Jesas College 186, 188
V. Kelsey 528
V. Man. Co. 60, 499
V. Milwaukee 872
V. Moore 629, 781, 782
u. E. E. 1128
V. Shipp 175, 515, 819
V. State ^115
V. Thompson 1026
V. Tucker 429
V. Turner 1193, 1194, H99
V. Wells 992
Welsh V. Barrett 123, 238, 250, 654, 688
V. Cochran 1318
V. Lindo 758
V. Louis 269
V. Mandeville 797, 1207
V. Sykes 803
V. Usher 863
Welstead v. Levy 1163
Weniet v. Lime Co. 1362, 1364
Wemple v. Knopf 927, 1067
V. Stewart 1019
Wemyss v. Hopkins . 785
Wendell I). Abbott ' 115,185
V. Blanchard 1332
V. Troy 441
Wenman v. Mackenzie 200, 769, 800
Wentworth ». Buhler 910,1015
V. Lloyd 1266, 1267
V. Smith 1287
Wequelin v. Wequelin 184
Werkheiser v. Werkheiser 837
Werner v. Footman 958
782
Wertz V. May 569
Wesley v. Thomas 931, 936, 1028
Wessen v. Iron Co. 175, 448
V. Stephens 1042
V. Washburn Iron Co. 448
West w. Blakeway 1018
• V. Irwin 354, 781
V. Kelly 920, 1058
o. Lawdray 945
V. Bay 884
V. State 356, 383, 528, 719
V. Steward 625, 632, 633
West Bk. V. Addie 1019
West Branch Ins. Co. v. Helfenstein 153
Westbrook v. Harbeson 1021
Westbrooks v. Jeffers 1050, 1052
West Chester R. E. v. McElwee 1081
Westcott V. Brown 796, 808
V. Fargo 363
Westerhaven v. Clive 640
Westerman v. Westerman 427, 431
Western Bailroad Co. v. Babcock 1021
V. Smith 937
Westerwelt v. Lewis 96
Westfall V. B. E. 43
West Felic. E. E. v. Thornton 103
Westfleld v. Warren 205
Westholz V. Retaud 953
Westhook v. Eager 866
West Newbury v. Chase 446, 447, 450
Westoby v. Day 296
Weston V. Chamberlin 1059
V. Ernes 929
V. Higgins 1333
V. Stammers 119
West Springiield v. Root 1310
West. Un. Tel. Co. v. Hopkins 76
Wether v. Dunri 337
Wetherall v. Claggett 251
V. Garrett 123
Wetherbee v. Norris 49, 565
Wetherell v. Langston 873
V. Neilson 958, 959
V. Patterson 515
V. Siillman 86
V. Swan 357
Wetmore v. U. S. 638, 643, 646, 664
Whaley v. Carlisle 232, 336
V. Houston 123
V. State 514
Wharlin v. White 1149
Wharram v. Eoutledge 156
V. Wharram 139
Wharton v. Douglass 929, 931, 1019,
1058
!>. Lewis 52
Wharton Peerage 636, 828
Whateley v. Crowter 490
Whately v. Spooner 956, 1003
Wheat V. State 368
Wheatley v. Wheeler 1175
V. Williams 579, 589, 592
Wheaton v. Wheaton 1019
TABLE OF CASES.
Wheeden v. Fiske
1017
White V. Holman
1217
Wheelan v. Sullivan
871
V. Hutchinga
732
Wheelden v. Wilson
480, 482
w. Jones
620
Wheeler, in re
1281
V. Judd
380
Wheeler v. Alderson
175,451,512
V. Lincoln
1264
u. Arnold
468
V. Lisle
187, 188
V. Billings
1044
a. Loring 1157
1347, 1352
V. Blandin
515
V. Madison
64
V. Collier
871
V. Man. Co.
694
V. Framingham
641
u. Mann 1274
1276, 1277
V. Hill
578
(,'. Maynard
863
V. Kirtland
1019, 1030
V. McLaughlin
219
V. McCorristen
1167
V. Merritt
790
V. Euckmaa 766, 781, 782, 835, |
V. Miller
1042
837
V. Morris
1107, 1117
V. Smith
683, 1029
V. Moseley
788
u. Walker
662, 1163 a
V. Noble
507
V. Webster
276
V. Paekin
1027
Wheelock v. Hall
1318
V. Parkin
1026
V. Hardwick
1175
V. Proctor
868
V. Kost
834
V. Kice
821
Whelan's Appeal
1019, 1029
V. R. R.
1290
Whelan v. Lynch
449, 674
V. Sayward
975
Whetstone v. Whetstone
797
u. Sharp
824
Whicker v. Hume
1285
V. Smith
560
Whighan v. Pickett
697, 699
V. Stafford
431
Whipple V. Walpole
446
V. Strother
101,215
Whisler v. Drake
1362
V. Tucker
516, 1132
Whitaker v. Bramson
781
V. Watkins
931
V. Brown
1163 a
V. Watts
490
V. Freeman
53
V. Weeks
1048
V. Salisbury
723, 730
V. White
863, 1220
V. Sumner
819, 833, 980
V. Wilkes
1066
V. Tatham
938
V. Wilkns on
521
V. Wisbey
324, 986, 990
V. Williams
945
Whitbeek V. R. E.
444, 449
V. Wilson
1253
V. Whitbeek
1042
Whitechurch v. Bevis
912
Whitcher v. McLaughlin
655
Whitefield v. R. R.
1263
V. Morey
837
Whitehead v. Can;
864
t. Shattuck
1018
V. Clifford
859
Whitcomb v. Whiting
1198
V. Foley
422
V. Williams
789
... Park
920
White, in re
900
Whitehill v. Skickle
698
White V. Ambler
661
Whitehouse v. Bickford
94, 668
V. Ashton
1142
V. Frost
1066
V. Bailey
451, 507, 574
Whitehurst v. Rogers
988
V. Ballou
436
Whiteley v. King
Whitelocke v. Musgrove
900
V, Barney
136
396, 701, 729
V, Cannon
807
White Mountain E. R. v. Eastman 1068
V. Casten
895, 896
Whitescarver v. Bonney
1215
V, Chadbourne
1163
Whiteside v. Margaret
1173r
V. Chouteau
226
Whiteside's Appeal
1274
V. Clements
120
Whitesides v. Bank
622
V, Cooper
V. Crew
1333
V. Green
466
868
V. Poole
288
V. Denman
1019
V. Russell
364
u. Dinkins
529
Whitfield V. Whitfield
447
V. Dwinel
115
Whitford v. R. E.
314,315
V. Fox
601, 603
V. Southbridge
1255
V. Gibson
1193, 1200
V. Tutin
61
V. Green
1101
Whiting V. Goult
912
V. Hicks
992, 1008
V. Ivey
490
V. Holliday
725
V. Nicholl
1274, 1276
783
TABLE OF CASES.
Whiting w. Whiting
Whitley v. Gough
V, State
Whitlock V. Castro
V. Crew
Whitman v. Freeze
V. R. R.
V. State
Whitmarsh v. Conway Ins. Co.
d. Walker
Whitmore v. Bowman
V. Johnson
Whitney v. Balkam
V. Bayley
V. Boardman
V. Boston
V. Bunnell
V. Durlin
V. Ferris
V. Gauche
V. Janeville
V. Lowell
V. Poiter
V. R. B.
V. Sawyer
V. Shippen
Whiton V. Ins. Co.
V. Slayton
V. Sprague
V. Thacher
V. Thomas
V. Townsend
V. Walsh
Whitridge v. Parkharst
Whittaker v. Edmunds
V. Garnett
V. Jackson
Whittemore v. Weiss
Whitter v. Latham
Whittier v. Dana
V. Franklin
V. Gould
Whitton V. State
Whittuck V. Waters
Whitwcll V. Wyer
Whitworth v. R. R.
Whyman ». 'Garth
Whyte V. Arthur
V. Rose
980
859
782
S40
838
508
447
334, 1298
961
867
450
828
61
486
961
447, 450, 559
714
261, 262
1200
340
53
920
767
549
682
466
108, 114, 127, 317,
635, 638, 664, 685
920
140
449, 674
63
1032
814
907
356
1047
765, 769, 779
510, 961
141
901, 902, 904
41, 512, 1295
709
1240
653, 654
1103
755
725
1033
339, 795
Wickenkamp v. Wickenkamp 129, 571
Wickersham v. Orr 970
V Whedon 788
Wickes V. Adirondack Co. 1336
Wickham v. Page 1260, 1309
!■. Wickham 879
Widdow's Trusts 334
Wier V. Dougherty 936
Wiggin V. Goodwin 936, 1014
K Plumcr 571
V. R. R. 1103, 1127
V. Scammon 21
Wiggins V. Burkham 318, 1136, 1140
784
Wiggins p. Day
V. Halley^
V. Holly '
V. Leonard
V. Wallace
1204
515
515
1170, 1200
444
Wigglesworth v. Dallison 968, 959, 961,
969
Wight V. Wallbaum 982
Wightman v. Ins. Co. 1246
Wihen v. Law 653, 655
Wike V. Lightner 562, 563, 565
WikofTs Appeal 630, 890
Wilbur V. Flood 541
V. Selden 177, 178
V. Strickland. 1166
Wilbum V. Hall 101
Wilcocks V. Phillips 307
Wilcox «. Bates 1031
W.Hall 443,1175
w. Rome, &c. Railroad Co. 1255
». Smith 1315
V. Waterman 1165
». Wilcox 1321
V. Wood 961 o
Wilcoxen v. Bohanan 1 1 83
Wilde V. Armsby 629
Wilder v. Franklin 1077
V. Holden 820
V. St. Paul 178
V. Welsh 389
Wildey v. Bonney 823
Wilds V. Blanchard 562
u. R. R. 361, 1294
Wileru. Manly 1166
Wiles V. Harshaw 1014
V. Woodward 1083
Wiley V. Bean 726
V. Ewalt 931
I). Moor 633
V. Pratt 796
V. Sontherland 990
Wilhelm v. Cornell 820
Wilhelmi v. Leonard 529
Wilkes V. Ferris 875
Wilkins v. Anderson 825
V. Babbershall 556
V. Burton 872, 1127
V. Earle . 1284
' i;. Malone 540
V. Stephens 1037
V. Stidger 1138, 1184
V. Vashbinder 970
Wilkinson v. Adam 998
V. Davis 559
B. Evans 872
V. Jewett 120
V. KIrby 779
V. Moseley 451, 452
V. Pearson 451
V. Prond 1349
V. Scott 1042, 1044
Willan V. Willan 1021
Willard v. Buckingham 1170, 1173
TABLE OF CASES.
Willard v. Harvey
826
Williams v. Rawlins
690
V. Sperry
V. Whitney
788
V. Eobbins
951, 1061
826, 982
V. Soutter
509
Willerford, in re
890
V. State 29, 84, 178
, 290, 422,
Willes V. Glover
1170
424, 1064
Willet V. Ester
404,411
V. Sutton
773
Willets V, Mandlebaum
194
V. Swetland
1039
WillettK. Porter
-1009
V. Thorp
1090
Willetts V. Maudlebaum
136, 703
V. Turner
123
Willey V. Hall
1022
iTi
896
V. Portsmonth
114,392,452
826
William & Mary College v.
Powell 429
V. Walker
550, 786
Williams's case
666
V. Waters
90, 133
Williams, ex parte
385
V. Willard
180, 514
Williams v. Allen
574
V. Williams 487, 882
, 973, 1180
u. Amroyd
814
V. Wilson
800
V. Ashtou
630
V. Woods
961, 977
V. Bacon
75
Williamson v. Carroll
388
V. Baker
741, 1052
V. Dillon
175
V. Baldwin
429
V. Pox
1302
V. Bass
115
V. Patterson
251
V. Benton
152
V. Peel
551
V. BrickcU
76, 1128
V. Simpson
1019
V. Bmmmel
106
V. Wilkinson
1050
V. Byrnes
871
V. Williamson
1131, 1140
V. Canal Co.
120
Williard v. Williard
903, 1160
V. Carpenter
953
Willingham v. Matthews
389
V. Cheeseborougb
990
V. Smith
468, 473
v. Cheney
838
Willink V. Canal Co.
766
V. Christie
951
Willis V. Bernard
225, 269
V. Cowart
115
V. Fern aid
1026
V. Davis
1183
V. Eorrest
47
V. Dewitt
510
V. Hulbert
21, 939
V. Donaldson
935
V. Jenkins
992
V. Donell
1348
V. Kerr
1019
V. Drexel
713
V. Quimby
512
V. E. India Co.
356, 1245
V. Underbill
424
V. Evans
875
Williston V. Williston
151
V. Eyton
824, 1303
Willraering v. McGaughey
958
V. Earrington
540
Willmet V. Harmer
1246
V. Pitch
29, 576
Willoughby v. Dewey
21
V. Geaves
230
V. Willoughby
282, 331
V. Griffin
740
Willson V. Betts 708, 732, 733
t'. Heales
1149
Wilman v. Worrall
726
V. Heath
142
Wilmer v. Harris
1058
V. Hillegas
733
Wilmington v. Burlington
208
V. Hubbard
324
Wilson V. Allen
1352, 1353
V. Innes
1190
V. Beddard
889
V. Jarrot
269
V. Black
856
V. Jones
61
V. Bowden
1175
u, Judy
V. Kelsey
1163 a
u. Bowie
1,56
267, 521
V. Carson
305
V. Ketcbara
869
V. Clarke
864
V. Keyser
156, 736
!;. Derr
1064
V, Lake
871
V. Duer
1066
V. Man. Co.
492
V. Dunsany
801
V. Manning
V. Miner
1127, 1196
32
V. Ford
V. Getty
12.57
1017
V. Morgan
V. Mudie
188
581
V. Hines
V. Hobbs
1090
826
V. Payton
V. Preston
923
802
V. Home
V. Lazier
943
289, 366
V. Putnam
123
V. Lyon
863
vol,, n. 50
. 785
TABLE OF CASES.
Wilson V. Maddock
510
Winship v. Conner
1274
V. Martin
881, 883
V. Enfield
429
1/. McClure
63
Winslow V. Driskell
1050
V. McCullough
502
V. Gilbreth
366
V. McKenna
697
V. Grindal
769
V. McLean
515
V. Newlan
175, 555, 1196
u. Noonan
53
Winson V. Dillaway
681
V. O'Leary
995, 973
Winsor v. Clark
63
V. Pattrick
1031
V. Dunford
95
V. People
441
Winstan v. Prevost
1357
V. Rastall
578
580, 597
Winston v. Affalter
784
V. Ray
782
V. Cox
545
V. Kobertson
939
V. English
490
V. R. R. 578
, 580
594, 754
V. Gwathmey
733
V. Sewell
859
Winter v. Bent
1175
V. Sheppaid
422
V. Burt
527, 528
u. Sherlock
265
V. Newell
685, 760
V. Spring
1184, 1217
V. Peterson
1339
V. Sproul
51
V. Simonton
357
V. Stewart
123, 320
u. Stock
507
V. State
439
491, 565
V. U. S.
185
V. Tucker
1062
V. Walter
1216
a. Wagar
530
V. Winter
433, 478
V. "Webber
490
V. Wroot
225
V. "Wilson 681, 980, 988, 1337,
Winterbottom v. Derby
1350
1350
Wintermute v. Light
969, 1051
V. "Woodruff
1166
Winters v. Laird
107
V. Young
561
V. R. R.
509
"Wilt V. Bird
61
Winlle, in re
655
"Wilter V. Latham
147
Win ton v. Meeker
559
"V?"ilton V. Harwood
909
Wisden v. Wisden
378
V. "Webster
225
Wise V. Neal
1044
"Wiltshire v. Sidford
1340
Wiseman's case
1220
"Wimberly v. Hurst
982
Wishart v. Willie
1341
"Winans v. Dunham
775
Wistar's Appeal
Wistar v. Ollis
366
V. R. R.
436
454, 972
980
V. "Winans
357
WIswall V. Knevals
141
"Winants v. Sherman
620
Withed V. Wood
466
"Winchell v. Edwards
1265
Withee v. Row
718
V. Latham
572
Wither's Appeal
903
V. Stiles
837
Witherell r. Goss
833
"Winchester v. Charter
1165
Withers v. Livezey
980
V. Winchester
123
Witherspoon v. Blewet
466, 474
Winder v. Diffenderffcr
538
Witliington v. Warren
758
V. Little
201
Wiihnell v. Gartham
188
Windsor v. Mc"Veigh 795,
796,
803, 814,
Witt V. Klindworth
269
818, 1234
V. Witt
268
Winebiddle v. Porterfield
47, 53
Wixom V. Stephens
782
Winehart v. State
1240
Woburn tr. Henshaw 77
, 479, 576, 583
Wing V. Abbott
142
Wolcott V. Ely
980
11. Angrave
1281
V. Heath
518, 680
V. Burgis
942
V. Holcomb
357
V. Cooper
1031
Wolf V. Bollinger
895, 900
V. Sherrer
147
V. Foster
77
Winkley v. Kaime 1286, 1331, 1354
V. Ins. Co.
175, 1141
Winn V. Albert
912
V. Studebaker
1077
V. Chamberlin
1015
V. Wyeth
180
V. Patterson 72, 90
129,
132, 135,
Wolfborough v. Alton
517
194
Wolf Creek Diamond Co.
V. Shultz 1108
Winne v. Nickerson
678
Wolfe V. Hauver
549
Winnesheik Ins. Co. v. Holzgrafe 920
V. Myers
1070
Winnipiseopec Co. v. Young
339, 1350
V. Washburn
1052
Winona v. Huff
141
Wolff V. Koppel
879
786
TABLE OF CASES.
"Wolff u. Oxholm
Wolfley V. Rising
WoUaston V. Hakewill
Wollenweber v. Ketterlinus
Wolstenholme v. Wolstenholme
"Wolverhampton New Waterw. Co.
V. Hawksford
Wolverton v. State
Womack v. Dearman
u. "Womack
Wonderly v. Booth
Wood, in re
Wood V. Ambler
u. Augustine
V. Beach
V. Benson
V. Braddiek
V. Byington
V. Ciiapin
V. Cooper
V. Corcoran
V. CuUen
V. Curl
V. Deane
V. Fitz
V. Foster
V. Good ridge
V. Hardy
V. Hickok
V. Jackson
V. Jones
V. Mansell
V. McGuire
V. McKinsou
V. Midgley
V. Neale
V. Peel
V. Perry
V. Priestner
V. Shurtleff
V. Steamboat
V. Steele
V. Terry
V. Veal
V, Watkinson
u. Weiant
V. Willard
V. Wilson
V. Young
Woodall V. Greater
Woodard's Will
Woodard v. Spiller
Woodbeck v. Keller
Woodbridge v. Banning
0. Spooner
Woodburn v. Bank
Woodbury v. Northy
V. Obear
Woodbury Savings Bank v. Charter
Oak Ins. Co. H
Woodcock V. Houldsworth
Woodford v. McClenahan
V. Whitely
803
Woodgate v. Fleet
793
950
V. KnatchbuU
833
112
Woodhead v. Foulds
1052
1127
Woodin V. Foster
1058
1127
Woodman v. Dana
719
Co.
V. Eastman
923
490
V. R. R.
693
84, 87
Woodrow V. O'Couner
300
97, 98
Woodruff i: Bank
958, 959
1124
V. Frost
920
1199
V. Garner
931
12.58
V, McHarry
1053
519
V. Thurlby
357
937
V. Woodruff
776, 783, 939,
1048
1243
902
Woods V. Allen
439
1198
V. Banks
116, 693, 1175
771
V. Ege
670
1043
V. Gassett
151
523, 524
V. Gerecke
1120
880
V. Gummert
33
130
V. Keyes
180, 514, 1109
788
V. Sawin
943
833
V. Wallace
1019
319, 322
V. Woods
577, 998
185
V. Young
983
865
Woodstock V. Hooker
308
1363
Woodward, in re
896
964
Woodward v. Cotton
294
781
V. Easton
559
910
V. Foster
1058, 1059
987
V. Gates
511
575
V. R. R.
340
550
Woodwell V. Brown
1173
870
Woodworth v. Hufltoon
1301
389
Woolfu. Chalker
1295
346
Woolfolk V. Bank
623
1022
WooUam v. Hearn
1024
1044
WooUey v. R. R.
576,593
466
V. Turner
429
1021
V. U. S.
778
624, 632
Woolmer v. Devereux
742, 743, 751,
1318
753
13.50
Woolray v. Rowe
1163 a
803
Woolsey v. Rondout
1315
740
Woolway v. Rowe
1094, 1160
677, 1160
Woonsocket v. Sherman
662
799
Wooster v. Butler
185
1063
Wooten V. Nail
1365
936
Wootley V. Gregory
861
616
Wootton V. Redd
996, 998
712
Worden v. Williams
1019
1246
Workman v. Guthrie
909
782
Wormeley v. Com.
552
929, 1058
WorraU v. Munn
873
510
Worsley v. Fillister
282
599
Worth V. Gilling
41, 1295
448, 452
Wortham v. Com.
781
larter
Worthey v. Warner
986
1172
Worthing v. Worthing
1165
445, 1323
Wray v. Ho-ya-pa-nubby
117
717
V. Steele
1035
149
V. Wray
931, 1019
787
TABLE OF CASES.
Wrege v. Westcott
1090
X.
Wren v. Hoffman
1058
Wrestler v. Custer
1252
Xenos
V. Wickham
624
Wright!). Butler
765
V. CariUo
1156
V. Comb
1204
Y.
V. Cumsty
178, 555
V. Dekline
551,775
Yahoola Co. v. Irby
175, 1041
V. Delafieia
314
Yaleu
Oliver
151
V. Foster
505
Yarborough v. Beard
702
V. GofF
1022
V. Moss
175
V. Goodlake
490
Yardley's Estate
84
V. Graham
824
Yardley v. Arnold
393
V. Hardy
452
Yarnell v. Anderson
357
V. Hawkins
28
-,339
Yates,
ex parte
626
V. Holdgate
608
12S8
Yates
V. Pym
958
V. Ins. Co.
1284
!;. Thomson
316
V. Ld. Maidstone
149
Yawger v. Manning
837
V. Maseras
1138
Yearsley's Appeal
683
V. Mathews
492
Yeates
V. Yeates
1000
V. McKee
47
Yeaton v. Fry
320
V. Mills
990
Yeomans v. Williams
1017, 1018, 1145
V. Morse
1058
Yoeu.
People
665
V. Murray
841
Yoes V
. State
412
V. Paige
562
York I
. Pease
500
V. Phillips
317
York Bk. v. Carter
263
V. Puckett
909
York R. R. v. Winans
336
V. Rogers
888
1314
Yorke
V. Brown
977
V. Rudd
188
V. Smith
78
V. Shroeder
47
Yostu
. Devault
514
V. Smith
781
1014
Yoter
V. Sanno
604
V. Snowe
1145
Youndt V. Youndt
139, 900
V. Stavert
863
Young
V. Bank
464, 620, 1134
V. Tatham 173
175, 177
,185,
V. Bennett
53, 123, 528
451, 726,
729, 766
1254
V. Buckingham
135
V. Tukey
1040
V. Catlett
517
V. Vernon
754
V. Cawdrey
1121
V. Weeks
871
V. Chandler
103
u. Wood
689
V. Cole
298
V. Woodgate
1263
V. Com.
265, 740
V. Worsted Co.
942
V. Dake
854
Wrightsman v. Bowyer
1044
V. Dearborn
180, 514
Wroe V. State
529, 536, 538
V. Edwards
1246, 1248
Wyatt V. Batemau
178
V. Fonte
1088
V. Gore
605
V. Frost
920
V. Harrison
1346
V. Fuller
986
V. Soott
1354
V. Gilman
430, 431
Wyche v. Green
1019
V. Grote
925
Wyckoff V. Carr
1163
V. Honner
710
Wylder v. Crane
1119
V. Jacoway
1015
Wylie V. Smitheran
140
V. Lynch
V. Mackall
746
Wyman v. Fisks
935
141
Wymark's case
749
1^. Makepeace
175, 441
Wyndham's Divorce case
225
I'. McGown
1022, 1028
Wynn v. Cox
920
!). Mertens
72
V. Garland
1088
V. Murph
52
V. Harman
66
V. I'ower
507
Wynne v. Alexander
942
V. Raincock
1039
V. Aubuchon
63
V. Smith
1213
V. GlidewcU
1165
V. Stevens
1023
V. Tyrwhitt
234
V. Temple ton
301
v. Whisenant
1044
V. Thayer
V. Thompson
102
824
788
TABLE OF CASES.
Young V. Turing 1243
V. Twigg 1002
V. Wood 549
V. "Wright 1184
Young's Estate 1044
Younge>. Guilbeau 115,740
Youse V. Forman 895, 896
Yrisari v. Clement 323
Z.
Zabriskie v. Smith 269
Zacharie v. Franklin 696
Zane v. Cawley 1029
Zantzinger v. Weightman 508, 509
Zarifi V. Thornton 490
Zeigler v. Gray 1336, 1362
Zeigler v. Houtz
V. King
V. Scott
V. Zeigler
Zemp V. R. E,
V. Wilmington
Zerbe v. Miller
Zerby v. Wilson
Zeringue v. White
Zimmerman v. Lamb
V. Rote
Zitske V. Goldberg
Zollickoffer v. Tumey
Zouch V. Clay
Zachtman v. Roberts
Zugasti V. Lamer
Zulietta v. Vinent
Zychlinski v. Malfby
789
733
837
487, 490
988
1082
357
357
725
507
1167
626
176, 180
537
632
1143, 1150
331
1149
490
END OF VOL. n.
Live Music Archive
Librivox Free Audio
Metropolitan Museum
Cleveland Museum of Art
Internet Arcade
Console Living Room
Books to Borrow
Open Library
TV News
Understanding 9/11