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Full text of "A treatise on the law of evidence"

T 




THE LIBRARY 

OF 

THE UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 

SCHOOL OF LAW 



A TREATISE 



LAW OF EYI^EJif^E. 



SIMON GREENLEAF, LL.D., 

EMERITUS PROFESSOR OF LAW IX HARVARD UNIVERSITY. 



Qaorsum enim sacras leges inventae et sancitse fucre, nisi ut ex ipsarura justitia 
unicuique jus suum tribuatur ? — MusavKDUS ex Ulpl.\n. 



VOLUME L 

TWELFTH EDITION, CAREFULLY REVISED, WITH LARGE ADDITIONS, 
BY 

ISAAC F. REDFIELD, LL.D. 



BOSTON: 
LITTLE, BROWN, AND COMPANY. 

MDCCCLXVI. 



Entered according to Act of Congress, in the year 1858, 

By James Greenleaf, 

in the Clerk's Office of the District Court of the District of Massachusetts. 

Entered according to Act of Congress, in the year 1863, 

By James Greenleaf, 

ill the Clerk's Office of the District Court of the District of Massachusetts. 

Entered according to Act of Congress, in tlie year 1866, 

By Mrs. James Greenleaf, 

in the Clerk's Office of the District Court of the District of Massachusetts. 

T 



CAMBRIDGE: 
PRESS OP JOHN WILSON AND SON 









TO THE IIONOKAnLK 

JOSEPH SiOliV, LIJ). 



ONE OP THE JUSTICES OF TlIK SUPREME COfUT OK THE CNITED ATATM, 
, AND DANE PROFESSOR OP LAW IN IIAKVARD LMVKBAITY. 



Sir, 
In dedicating this work to you, I pertbrni an office both 
justly due to yourself and dehghtfid to mc, — that of 
addmg the evidence of a private and confidential witness to 
the abundant public testimonials of your worth. I'nr more 
than thirty years the jurisprudence of our comitry has been 
illustrated by your professional and juricUcal laboi-s ; with 
what success, it is now superfluous to speak. Other Jurists 
have attained distinction in separate departments of the 
law ; it has been reserved for yoiu'self, with singular feli- 
cit)', to cultivate and administer them all. Looking back 
to the unsettled state of the law of our national institutions, 
at the period of yoiu' accession to the bench of the Supreme 
Court of the United States, and considering the unlimited 
variety of subjects within the cognizance of the Fedend 
tribunals, I do but express the consenting opinions of your 

contemporaries, in congratulatuig our countn,- tliat jour life 

(iii) 



72Q914 



IV DEDICATION. 

and vigor have been spared until the fabric of her jurispru- 
dence has been advanced to its present state of lofty emi- 
nence, attractive beauty, and enduring strength. 

But many will regard the foundation of the present Law 
School in Harvard University as the crowning benefit, 
which, through your instrumentality, has been conferred 
on our profession and country. Of the multitude of young 
men, who will have di-unk at this fountain of jurisprudence, 
many will administer the law, in every poition of this wide- 
spread Republic, in the true spkit of the doctiines here 
mculcated ; and succeedmg throngs of mgenuous youth will, 
I trust, be here imbued with the same spirit, as long as our 
government shall remain a government of law. Yoiu* anx- 
iety to perpetuate the benefits of this Institution, and the 
variety, extent, and untu'ing constancy of youi* labors in 
this cause, as well as the cheerfid patience with which they 
have been borne, are peculiarly known to myself; while, 
at the same time, I have witnessed and been instructed by 
the high moral character, the widely-expanded views, and the 
learned and just expositions of the law, which have alike 
distmguished your private Lectures and your pubhshed 
Commentaries. With unaffected sincerity I may be per- 
mitted to acknowledge, that while my path has been 
illumined for many years by yoiu' personal friendship and 
animating example, to have been selected as your associate 
in the arduous and responsible labors of this Institution, 
I shall e\CY regard as the peculiar honor and happiness 
of my professional life. Beate vixisse videar, quia mm 
Scipio7ie vixerim. 



DEDICATION. T 

Long may you contiiiuc to reap the ricli rcwanl 
so vast, so incessant, and of such surpassHnrj vahi- , m un- 
heartfelt gratitude of our whole country, and in the pros- 
perity of her institutions, which you have done so much to 
establish and adorn. 

I am, with the highest respect, 
Yoiu- obhged friend, 

SIMON GREENLKAK. 

Cambridge, Massachusetts, 
February 23, 1842. 



ADVERTISEMENT TO THE FIRST EDITIOX. 



The profession being already fumislied with tlic excel- 
lent treatises of jNIi*. Starkie and ^ii\ Phillips on Evidence, 
with large bodies of notes, referrmg to American decisions, 
perhaps, some apology may be deemed necessaiT for obtrud- 
ing pn theu' notice another work, on the same subject. But 
the want of a proper text-book, for the use of the students 
under my instruction, lu-ged me to prepare something to 
supply this deficiency ; and, having embarked m the under- 
takuio- I was natiu-ally led to the endeavor to reiuliT the 
work acceptable to the profession, as well as usefid to the 
student. I would not herem be thought to disparage 
the invaluable works just mentioned ; which, for tlieir 
accuracy of learning, elegance, and sound philosophy, are 
so highly and imiversally esteemed by the American Bar. 
But many of the topics they contain were never api)licable 
to this country; some others are now obsolete; and the 
body of notes has become so large, as almost to overwhelm 
the text, thus greatly embarrassing the student, increasinix 
the labors of the instructor, and rendering it indispensable 
that the work should be rewritten, with exclusive reference 
to our own jiuisprudence. 1 have endeavored to state those 



viii ADVERTISEMENT. 

doctrines and rules of the Law of Evidence which are 
common to all the United States ; omitting what is purely 
local law, and citmg only such cases as seemed necessary 
to illustrate and support the text. Doubtless a happier 
selection of these might be made, and the work might have 
been much better executed by another hand ; for now it is 
fuiished, I find it but an approximation towards what was 
originally desired. But in the hope, that it still may be 
found not useless, as the germ of a better treatise, it is 
submitted to the candor of a liberal profession. 



Cambridge, Massachusetts, 
February 23, 1842. 



ADVERTISEMENT TO THE TWi:[JTIl KDlTloN. 



In preparing the present edition, the entire vohinic has 
been carefully revised, and the decisions, both En«,'lisli and 
American, thoroughly examined, for the entire period since 
the decease of the author ; and such additions made, botli 
in the text and notes, as seemed requisite to brin^:^ tlie book 
up to the present date, as nearly m the form in uliicli the 
author kept it during his life as was practicable. Careful 
abstracts of every section have been prefixed to the several 
chapters, and nearly a hundred pages of new matter added 
in all, with many hundreds of new cases. The new matter, 
which is thus indicated [*], has all been carefully i)repared 
by my own hand ; but, m the multiplicity of other laboi-s, 
I have been obliged to trust mainly to the faithful and dis- 
crimhiating investigations of my excellent friend and assist- 
ant, William A. Herrick, Esq.. of the Boston bar, for the 
collection of the materials wliich I have used. I feel great 
confidence that this volume will be found so far reliable, as 
to the present state of the law upon the numerous toi)ics 
discussed, as to be valuable and acceptable to tlie pro- 
fession. 

1. F. IL 

Boston, April 10, 18G6. 



NOTE. 



Some of the citations from Starkie's Reports, in the earlier part of this 
work, are made from the Exeter edition of 1823, and the residue from the 
London edition of 1817-20. The editions of the principal elementary 
writers cited, where they are not otherwise • expressed, are the follow- 
ing : — 

Alciati, Opera Omnia. Basileae. 1582. 4 tom. fol. 

Best on Presumptions. Lond. 1844. 

Best Principles of Evidence. Lond. 1849. 

Canciani, Leges Barbarorum Antiquoe. Venetiis. 1781-1785. 5 vol. fol. 

Carpzovii, Practicos Per. Crim. Francof. ad Mtenum. 1758. 3 vol. fol. 

Corpus Juris Glossatum. Lugduni. 1627. 6 tom. fol. 

Danty, Traite de la Preuve. Paris. 1097. 4to. 

Everhardi Concilia. Ant. 1643. fol. 

Farinacii Oijera. Francof. ad Maenum. 1618-1686. 9 vol. fol. 

Glassford on Evidence. Edinb. 1820. 

Gresley on Evidence. Philad. 1837. 

Joy on Confessions. Dublin. 1842. 

Mascardus de Probationibus. Francof. ad Mienum. 1684. 4 vol. fol. 

Mathews on Presumptive Evidence. New York. 1830. 

Menochius de Presumptionibus. Geneva^. 1670. 2 tom. fol. 

Mittermaier, Traite de la Preuve en Matiere Criminelle. Paris. 1848. 

Peake's Evidence, by Norris. Philad. 1824. 

Phillips and Amos on Evidence. Lond. 1838. 8th ed. 

Phillips on Evidence. Lond. 1843. 8th ed. 

Pothier on Obligations, by Evans. Philad. 1826. 

Russell on Crimes. 3d Amer. ed. 

Starkie on Evidence. 6th Amer. ed. 2 vols. 

SteiJien on Pleading. Philad. 1824. 

Strykiorum, Opera. Francof ad Magnum. 1743-1753. 15 vol. fol. 

Tait on Evidence. Edinb. 1834. 

Tidd's Practice. 9th Lond. ed. 

Wigram on the Interpretation of Wills. 3d Lond. ed. 1840. 

"Wills on Circumstantial Evidence. Lond, 1838. 

[xi] 



CONTENTS. 



PART I. 

Of the Nature and PRiNCirLEs of Evidence. 

CHAPTER I. 

Section 

Preliminary Observations 1~^ 

CHAPTER II. 

Of Things Judicially taken notice of without Proof .... 4-6 

CHAPTER HI. 
Of the Grounds of Belief 7-13 

CHAPTER IV. 
Of Presumptive Evidence 14-48 

PART IT. 

Of the Rules which govern the Production of Testimony. 

CHAPTER I. 

Of the Relevancy of Evidence • • ^^"^^ 

CHAPTER II. 
Of the Substance of the Issue ^*^~'^ 

VOL. I. b 



XIV CONTENTS. 



CHAPTER III. 

Section 

Of the Burden of Proof 74-81 c 



CHAPTER IV. 
Of tlie Best Evideuce 82-97 

CHAPTER V. 
Of Hears'ay 98-126 

CHAPTER VI. 

Of Matters of Public and General Interest 127-140 

CHAPTER VII. 

Of Ancient Possessions 141-146 

CHAPTER VIII. 
Of Declarations against Interest 147-155 

CHAPTER IX. 
Of Dying Declarations 156-162 

CHAPTER X. 

Of the Testimony of "Witnesses subsequently dead, absent, or 

disqualified 163-168 

CHAPTER XI. 
Of Admissions 169-212 

CHAPTER XII. 
Of Confessions 213-235 

CHAPTER Xin. 

Of Evidence excluded by Public Policy 236-254 



CONTENTS. XV 



CHAPTER XIV. 

Section 
Of the Number of Witnesses, and the Nature and Quantity of 

Proof required in particular cases 255-274 

CHAPTER XV. 

Of the Admissibility of Parol or Verbal Evidence, to aflPect that 

which is Written 275-305 



PART III. 

Of the Instruments of Evidence. 

CHAPTER I. 

Of Witnesses, and the Means of jDrocuring their Attendance . 306-325 

CHAPTER II. 

Of the Competency of Witnesses 326-430 

CHAPTER HI. 

Of the" Examination of Witnesses 431-469 

CHAPTER IV. 
Of Public Documents 470-498 

CHAPTER V. 
Of Records and Judicial Writings . . 499-556 

CHAPTER VI. 
Of Private Writings 557-583 



INDEX TO CASES CITED. 



Abbey v. Lill 440 

Abbot V. Inhabitants of Hermon 197 

V. Massie 291 

V. Plumbe 569, 572 

Abbott V. Mitchell 385 

Abby V. Goodrich 428 

Abeel v. Eadcliff 268 

Abney v. Kingsland 51 a. 109 

Abrahams v. Bunn 414, 422 

Acero et al. v. Petroni 435 

Acker v. Ledyard 564 

Ackroyd & Warburton's case 230 

Adanipthwaite v. Synge 509 

Adams v. Balch 538 

V. Barnes 531, 536 

V. Betz 502, 509 

V. Broughton 533 

V, Cuddy . 397 

V. Davidson 190 

V. Davis 416 

V. Field 576, 581 

V. French 109 

V. Frye ' 568 

V. Gardiner 420 

V. Kerr 572, 575 

V. Llovd 451 a 

V. McMillon 268, 269, 551 

V. Pearson 534 

V. Power 73 

V. Sanders 212 

V. Stanyan 145, 570 

V. Worldley 275 

Addams v. Seitzlnger 122 

Addington v. Magan 66 

Addis V. Van Buskirk 66 

Adler v. Friedman 303 

Aiialo V. Foiirdrinicr 356 

Agawam Bank v. Sears 564 

Agnculturist Co. v. Fitzgerald 568 

Aiken v. Kllburne 237 

Aitcheson v. Maddock 80 

Aitken, ex parte 238 

Alban v. Pritchett 185, 341 



Section 

Alcock V. Cooke 239 

V. Whatmore 6 

Alden v. Dewey 352 

Alderson v. Clay 42, 97, 197, 198 

Aldrich v. Kinney 548 

Aldworth's case 502 

Alexander v. Gibson 543 

V. Harris 58 

V. Moore 305 

Alivon V. Furnival 546 

Allan V. Comstock 292 

AUcott V. Strong 112, 177 

Allegheny v. Nelson 5, 20 

Allen V. Allen 301 

V. Bennett 268 

V. Butler 

V. Denstone 113 

V. Duncan 108 

V. Furbish 281, 284 

V. Harrison 239 a 

V. Hawks 392, 420, 430 

V. Kingsbury 293 

V. McKeen 197 

V. Say ward 24 

V. The Portland Stage Co. 125 

V. Watson 489 

Allington v. Bearcrofl 392 

AUmore v. Mills 505 

Alna V. Plnmnier 264 

Alner v. George 172, 173, 305 

Alston V. Taylor 120 

Alvord V. Baker 38 

Aniey v. Long 246, 309, 558 

Amherst Bank v. Root 572 

Amick V. Oyler 535 

Amos V. Hughes 74 

Anderson v. Brock 333, 427 

V. Caldwell 533 

V. Hamilton 251 

V. Long 54, 55 

V. Parker 104 

V. Robson 558 

V. Root 563 

V. Saunderson 185 

V. Weston 121 



b* 



XVlll 



INDEX TO CASES CITED. 



Andrews v. Andrews 
V. Becker 



Section 

319 
173 
534 



V. Brown 

V. Oliio & Miss. R. R. 

Co. 239 a 

V. Palmer 168 

V. Solomon 239 

V. Vandiizer 55 

Androscoggin Bank v. Kimball 38 a 

Angus i\ Smith 4G2 

Ankerstein c. Clarke 69 

Annandale (Marchioness of) 

V. Harris 23 

Anneslcy v. D. of Anglesea 37, 244 
Anon. V. Moore 55 

Anscombe v. Shore 137, 405 

Anthony v. The State 156 

Apollon (The) 6 

Apothecaries Co. v. Bentley 79 

Appleton V. Boyd 172, 330, 452 

V. Ld. Braybrook 514 



Arbouin v. Anderson 
Archer v. English 

V. Walker 
Arding v. Flower 
Armory v. Delamirie 
Armstrong v. Hewitt 
Arutield.13. Bates 
Arnold v. Arnold 

c. Bp. of Bath and Wells 

V. Cessna 

V. Jones 

V. Redfern 

V. Rivoult 

V. Tourtclot 
Arrison v. Harmstead 



Arundell v. Arundell 

V. White 
Ashley V. Ashley 

V. Wolcott 
Ashmore v. Hardy 
Ashton's case 
Ashton v. Parker 
Ashworth v. Ivittridge 
Aslin V. Parkin 
Aston V. Perkes 
Astor V. Union Ins. Co. 
Atalanta (The) 
Atchcson V. Everitt 
Athcrford c. Beard 
Atkins V. Hatton 

V. Sanger 

V. Tredgold 
Atkinson v. Cummins 
Atlantic Ins. Co. v. Conrad 

;Mut. Ins. Co. V. Fitz 
patrick 
Atto.-Gen. v. Boston 
V. Bowman 



81 a 

205 

205 

316, 317 

34, 37 

485 

60 

369, 528, 531 

484 

281 

568 

546 

69 

498 

568 

554 

513 

86 

64 

97, 204 

451 a 

361 

497 

535 

81 

280 

31 

328, 371, 374 

475 

485 

174 

174, 176 

290 



Atto.-Gen. v. Briant 
V. Bulpit 



332 

323 

293 

54, 55 



Section 
250 
432 
V. Clapham 280 

V. Davison 554 

V. Drummond 295 

V. Glasgow College 295 
V. Hitchcock 433, 449, 461 
V. Jeffreys 60 

V. Parnther 42, 81 

V. Pearson 295 

V. Proprietors jMeet- 

ing-house, &c. 46 

V. Shore 295 

V. Thcakstone 479, 492 

V. Windsor 38 

Attwood V. Small 171 

V. WeUon 369, 370, 450 

Aubert v. Walsh 38 

Audley's (Ld.) case 343 

Augusta (Bank of) v. Earle 5, 43 



V. Windsor 
Austin V. Bostwick 

V. Chambers 

V. Rumsey 

«. Sawyer 

V. State 

V. Thompson 

V. Vesey 

V. Willes_ 
Australasia (Bank of) v. Xias 
Avery v. Pixley 

V. Stewart 
Aveson v. Kinnard 102 
Ayers v. Hewitt 



115, 116 
112 
171 
572 
271 
445 
563 
237 
384 
546 
273 
288 
156, 254, 337 
569 



B. 

Babb V. Clemson 
Backhouse v. Middleton 
Bacon v. Charlton 

V. Chesney 

V. Williams 
Badger v. Titcomb 
Bagley v. Mc?tlickle 
Bagot V. Williams 
Bailey v. Bailey 

V. Hyde 

V. Lmnpkin 

V. Musgrave 

V. Taylor 
Bailiffs of Tewksbury v. 
BailHe v. Hole 

r. Jackson 
Bain v. ]\Iason 
Bainbridge v. Wade 
Baird v. Cochran 

V. Fortune 
Baker v. Arnold 



180, 568 
552 

102, 205 

187 

581 

532 

558 

532 . 

392 

bo 

386 

73 

564 

Bricknell 58 

392, 430 
485 
493 
289 
452' 
287 
245 



INDEX TO CASES CITED. 



Baker v. Blunt 
V. Dening 
V. Dewey 
V. Haines 
V. ISIilburn 
V. Rand 
V. Ray 
V. Tyrwbitt 
Baleetti v. Serani 
Baldney v. Ritchie 
Baldwin v. Carter 
V. Dixon 
V. Hale 
Balfour v. Chew 
Ballard v. Noaks 

V. Walker 
Balls V. Westwood 
Balston v. Benstead 
Baltimore v. State 
Bamfield v. Massey 
Banbury Peerage case 
Bank v. Steward _ 
Bank of Australasia v. ^las 



Section 
574 
272 
26 
581 
121 
532 
37 
392, 428 
52 
560 
287 
392, 398 
548 
505 
357 
304 
25 
17 
5 
54 
28,81 
114 
546 cZ 



XIX 



Section 



Austrauisici u- ^'■"" , < in „ 
Middlebury«.R"tkvnd 440 a 

Woodstock V. Clark i^» 



Banks v. Farquharson 

V. Skain 
Barada v. Caundelet 
Barbat v. Allen 
Barb v. Fish 
Barber v. Gingeli 
V. Goddard 
V. Holmes 
V. AVatts 
Baring ». Clarke 
V. Reeder 
Barker v. Dixie 

V. Haskell 
V. Macrae 
V. Ray 
Barlow v. Dupuy 
V. Vowell 
Barnard v. Darling 
Barnes v. Camack 
V. Harris 
V. Lucas 
V. Mawson 
V. Tromjjowsky 
Baron de Bode's case 
Barough v. White 
Barr v. Gratz 
Barrett v. Allen 
, V. Buxton 
v. Gore 
V. Rogers 
V. Thorndike 
V Union Mut. Fire Ins. 
Co. 
Barrotto v. Snowden 



572 
420 
331 
334 
533 
200 
329 
484, 493 
505 
113 
342 
334, 340 
117 
416 
37, 116, 147, 149 
510 
167, 418 
302 
337 
238, 239, 241 
207 
137, 139 
572 
109 
171, 191 
142, 144, 539 
288 
284 
356, 547 
305 
265, 568 



Barrington v. Bank of Washing- 

ton 
Barrick v. Austin 
Barrow v. Humphreys 
Barrs f. Jackson 
Barry v. Bebbington 
V. Ransom 
V. Ryan 
Barstow's case ' 

Barthelemy v. The People 
Bartlett v. Decreet 
V. Delpratt 
V. Emerson 
V. Picker sgill 
V. Smith 
D. Wyman 
Bas v.- Steele 
Bass V. Clive 
Bassett v. Marshall 

V. Porter 
Batchelder v. Sanborn 
Bate V. Hill 
V. Kinsey 
V. Russell 
Bateman v. Bailey 
Rates V. Barber 

V. N.Y. Ins. Company 
V. Ryland 
V. Thompson 
Bateson v. Hartsink 
Bathews v. Gahndo 
Battin v. Bigelow 
Battles V. Batchelder 

V. HoUey 
Batturs ». §ellers _ 
Bauerman v. Rademus 
Baxter v. Graham 
V. Rodman 
Bay V. Gunn 
Bavard v. IMalcohn 
Bayley v. Osborne 
V. Tavlor 
V. Wylie 
Bavlies r. Fettyplace 
Baylis V. The Atto.-Gen. 
Bayne v. Stone 
Bavnes v. Forrest 
Beach v. Mills 

V. Packard 
Beachcroft v. Beachcroft 
Beacon Life & Fire Ass. Co. 

V. Gibb 
Beal V. Nichols 
Beale v. Commonwealth 

V. Thompson 
Bealey v. Shaw 
Beall V. Beck 
281 Beaman v. Russell 
391 1 Beamon v. Ellice 



564 
174 
319 
550 
150, 153 
281 
569 
218 
108 
101 
100, 180 
109 
363 
49 
281 
559 
107, 196 
86 
80 
118 
54, 458 
241, 562 
356, 358 
108, 180 
461 
173 
423 
532 
246 
207, 339 
. 41 
110 
46,84 
199 
172 
398 
422 
400 
275 
427 
564 
516 
58 
291 
89 
70 
118 
26 
288 



292 
445 

19 
322 

17 
187 
564 
432 



XX 



INDEX TO CASES CITED. 





Section 


Bean v. Qiiimby 




241 


Ik-aice V. Ja^•k^^on 




24 


IJeard r. Talhot 




145 


Beardslcy r. Richardson 




108 


Bearss v. Copley 




462 


Beasley v. Bradley 




358 


V. IMagratb 




179 


Beatson v. ISkene 




251 


Beauchauip v. Parry 




190 


Beaumont v. Fell 




291 


V. Field 




277 


V. Mountain 




481 


Beaver v. Lane 




69 


Beebe v. Parker 


130 


139 


Beckley i'. Freeman 


392 


430 


Beckrow's case 




568 


Beckwith v. Benner 




245 


V. Sydebotham 




440 


Becquet v. McCarthy 




546 


Bedell V. Russell 




76 


Beech''s case 




Co 


Beeching v. Gower 




421 


Beiilelman v. Foulk 




397 


P>eitz V. Fuller 


112 


174 


Beldcn v. Lamb 




51 a 


V. Seymour 




26 


Bell V. Ansley 




180 


V. Bruen 




284 


V. Chaytor 




671 


V. Firemen's Lis. Co. 




288 


V. Hull Railw. Co. 




430 


V. ALirtin 




287 


V. ^Morrison 112 


174 


323 


V. Smith 




395 


Bellamy v. Cains 




347 


Bcllew V. Russell 




347 


Bellinger v. The People 


451 


463 


Bellinger's case 




224 


Bellows V. Ingi'aham 




548 


Beltzhoover v. Blackstock 




240 


Benaway v. Conyne 




432 


Bend i\ Georgia Ins. Co. 




292 


Bender v. Froml)erg 




180 


Benjamin v. Hathaway 




452 


V. Porteus 


115 


416 


V. Sinclair 




305 


Benner v. Frey 




73 


Bcnnet v. Watson 


313, 


319 


Bennett v. Francis 




205 


V. Holmes 




532 


V. Hyde 




00 


V. JMorley 




548 


V. Robinson 




167 


V. Runyon 




31 


V. State 




369 


V. Tennessee 




6 


V. Watson 




319 


V. Womack 




49 


Bennett's case 




228 



Bent V. Baker 
Beutley v. Cooke 

V. Hollinback 
Benton v. Burgot 
Bentzing v. Scott 
Berd v. Lovelace 
Bergen v. Bennett 

V. The People 
Berkley Peerage case 



Section 

167, 390, 418 
334, 339, 343 
118 
548 
73 
237 
46 
217 
104, 125, 128, 
131, 133, 134 
Bermon v. Woodbridge 201 

Bernasconi v. Farebrother 181 

Berrington d. Dormer v. Fortes- 
cue 359, 360 
Berry v. Banner 139 
Berryman v. Wise 58, 83, 92, 195 
Bei'thon v. Loughman 441 
Berlie c. Beaumont 142, 154 
Berwick v. Horslall 277 
Bests V. Jones 427 
Betham «. Benson 113 
Betts V. Badger 571 
V. Bagley , 548 
V. Star 537 
Bevan v. Waters 241, 245 
V. Williams 195 
Beveridge v. Minster 254, 387 
Beverly v. Craven 144 
Beverley's case 189 
Bibb V. Thomas 273 
Bicknell v. Hill 498 
Biddis V. James 480, 489, 505 
Biddulph V. Ather 139 
Bigelow V. CoUamore 277 
V. Winsor 532 
Biglow u. Sanders 118 
Biggs V. Lawrence 284 
Bilbie V. Lumley 212 
Billings V. Billings 281 
Bingham v. Cabot 491 
V. Dickey 65 
V, Rogers 348 
V. Stanley 81 
Birch V. Depeyster 280 
Birchard v. Booth 197 a 
Bird V. Hueston 148 
V. Randall 531 
Birt V. Barlow 107, 493 
V. Kershaw 391, 416 
V. Rothwell 6 
V. Wood 395 
Bishoj) V. Chambre 564 
V. Cone 484 
V. Dotey 271 
Bissell V. Briggs 542, 548 
V. Edwards 505 
V. Morgan 81 a 
Bixbyy. Franklin Lis. Co. 494 
Black i\ Ld. Bravbrook 70, 514 



INDEX TO CASES CITED. 



XXI 



llo, 17: 



Section 
I, 2S4 
•205 
311 
137 
356, 389, o'Jo 
550 



Black V. Lamb 
Blackburn t\ iScholes 
Blacklnirne v. Ilargrave 
Blackctt V. Lowes 

V. Weir 

Blackham's case 

Blackwell *'. Bull 288 

Blad V. Bamlield 541, 542 

Blade v. Xolan 5G8 

Blair v. Seaver 3G9 

Blake v. Doherty 288 

V. Pilford 251 

V. Buss 563 

V. Sanderson 25 

V. White 109 

Blakemore v. Glamorganshire 536, 537 

Blanchard ii. Ellis 24 

V. Youns 74, 91, 561 

112 



175 



Bland v. Hasselrig 
V. Swalford 
Blaney v. Rice 
Blantern v. Miller 
Blewett V. Tregonning 
Bligh v. Brent 
Blight V. Fisher 
Blight's Lessee v. Rochester 
Bliss V. Brainerd 

V. Mclntire 

V. Mountain 
Bliven v. N. England Screw Co 
Blodgett V. Jordan 
Blood V. Goodrich 

V. Rideout 
Bloodgood V. Jamaica 
Bloor V. Davies 
Blossom V. Cannon 
Blower v. Hollis 
Bloxam v. Elsee 
Blundell v. Gladstone 
Blurton v. Toon 
Blythe»i;. Sutherland 
Boardman v. Reed 
Bodine's case 
Bodmin Mines Co. in re 
Bodwell V. Osgood 

V. Swan 
Bogardus v. Trinity Church 
Bogart V. Brown 
Bogert V. Cauman 
Boileau v. Rudlin 
Bolin V. Mellidew 
Bolivar Man. Co. v. Neponset 

Man. Co 
Bolles V. Beach 
Bolton V. Bishop of Carlisle 

V. Corp. Liverpool 238 

Boltz V. Ballman 
Bond v. Fitzpatrick 



171 



319 
301 
349 
468 
270 
316 

25 
310 
668 
397 
293 
505 
304 
108 
331 
392 
20, 46 
511 

96 

291 

572 

145 

301 

13 a 

5 

8 

55 
145 
560 
275 
551 
320 



17 
573 
668 
240, 
244 
39 
190 







Section 


Bond V. Ward 




180 


Booge V. Parsons 




485 


Boorman v. Brown 




394 


V. Johnson 


25J 


S, 275 


Boorne's case 




214 


Booth V. Swezey 




190 


Bootliby V. Stanley 




664 


Boothwick V. Carruthers 




81 


Borum i\ Fonts 




239 a 


Boston India-Rubber Factor 


Y 




V. Iloit 




546 ^ 


Boston V. Weymouth 


16(. 


), 570 


Boston & Wore. R.R. Corp. 






V. Dana 93, 108, 197, 


252 a 


, 4G9 


Boston & P. R.R. v. Midlan 


i 




R.R. 




258 


Boston & Wore. R.R. Corp 






V. Old Colony R.R. Corp. 




440 


Bostwick V. Leach 




271 


Boswell V. Smith 




38 


Bosworth V. Crotchet 


122 


, 153 


Botham v. Swingler 


95 


,422 


Botsford v. Moorhouse 




265 


Bottomley v. Forbes 




292 


V. United States 




53 


V. AVilson 


391 


, 401 


Boucher r. Lawson 




488 


Bouldin V. Massie 




558 


BouUemet v. State 




6a 


Bound V. Lathrop 




174 


Boui-ne v. Boston 




561 


V. Gatliffe 




293 


V. Turner 




406 


Bours V. Tuckerman 




316 


Bowditch V. Mawley 




69 


Bowen v. Bell 




62 


Bower ». The State 




218 


Bowerbank v. Monteiro 




283 


Bowlby V. Bell 




267 


Bowles V. Neale 




81 


Bowman v. Norton 




239 


V. Noyes 




356 


V. Rostron 




211 


V. Sanborn 322, 


484 


577 


V. Taylor 




22 


V. Woods 




440 


Bowsher v. Calley 




180 


Boyd V. Ladson 




118 


V. McConnell 




656 


V. McLean 




206 


Boydell y. Drummond 


112, 


268 


Boyden v. Burke 




108 


V. Moore 


110, 


205 


Boyle V. Webster 


197 a 


V. Wiseman 




451 


BojTiton V. Kellogg 


54, 


461 


V. Willard 




40 


Boys V. Williams 




291 


Brace v. Ormoud 




474 



xxu 



INDEX TO CASES CITED. 



Section 

Bracc'girdle v. Bailey 445 
Brackett v. lloitt 513 
V. Mountford 569 a 
V. Norton 488, 48'J 
Bradford v. Mauley 305 a 
Bradlee v. Neal 353 
Bradley v. Arthen 491 
V. Bradley 527 a, 578 
V. Goodyear 118 
V. Holdsworth 270 
V. Neal 356 
r. llicardo 443 
Bradsbaw v. Bradshaw 289, 290 
Bradstrcet v. Neptune Ins. Co. 18, 541 
Brady v. Brady 440 a 
Brain v. Preece 116 
Brainard v. Buck 197 
^ V. Clapp 80 
Brandao v. Barnett 5 
Branden v. Gowing 242 
Brander v. Ferriday * 138 
Brandigee v. Hale 420 
Brandon v. Cabiness 171 
Brandrani v. Wharton 174 
Brandt w. Klein 241,245 
Brard v. Ackerman 241 
Brashier v. Jackson 73 
Brattle St. Ch. v. Bullard 17 
V. Hubbard 189 
Bray (The) Peerage _ 20 
Brazen Nose College v. Salis- 
bury 88, 491 
Brenibridge v. Osborne 38 
Breton i\' Cope 97, 484 
Brett V. Beales 137, 139, 143, 481 
Brewer v. Brewer 109 
V. Knapp 38 
V. Pahuer 87, 9(5 
Brewster v. Countryman 303 
V. Doan llo 
Briant v. Eicke 73 
Bridge v. Eggleston 53, 180, 397 
V. Gray 112, 532 
V. Wellington 423 
Bridges v. Armour 354 
Bridgewater's (Ld.) case 497 
Bridgnian v. Jennings 189 
Briggs V. Crick 397, 398 
V. Georgia 117 
V. Greenfield et al, 357 
V. Wells 532 
Brigham v. Palmer 569 
V. Peters 114, 577 
V. Rogers ' 281, 303 
V. Smith 24 
Bright V. Sugg 73 
Brighton v. Walker 322 
Brind v. Dale 81 
Briukerhoffr. Remson • 272 



Brisco V. Lomax 
Brister v. State 
Bristol V. Dan 
V. Slade 



Section 

139 
214 
171 

332 



Bristow V. Wright 51, 58, 60, 63, 66 

Britton's case 226 

Broad v. Pitt 247, 248, 249 

Brock V. Kent 182 

V. Milligan 3G9, 370 

V. Sturdivant 303 

Brockbank v. Anderson 423 

Brocket v. Foscue 26 

Brogy V. Commonwealth 103 

Bromage v. Prosser 34 

Bromfield v. Jones 51 

Brooks V. Barrett 75, 77 

V. Bemis 70 

V. Blanchard 73 

r. Lowry 68 

V. Tichburne 581 a 

V. White 305 

Broom v. Bradley 394 

V. Wootom 533 

Brotherton & Livingston 358, 373 

Brown v. Bellows 443, 444, 462 

V. Brooks 262 

V. Brown 280, 356, 395, 429 

0. Burnes 358 

• v. Bryne 292 

V. Cambridge 305 

V. Edson 505, 513 

V. Getchell 316 

V. Hicks 485, 493 

V. Howard 358 

V. Kimball 574 

V. King 42 

V. Lasselle 341 

V. Leeson 253 

V. Lynch 420 

V. Mooers 4G9 

V. Payson • 245 

V. Philadelphia Bank 5 

V. Pinkham 602 

V. Saltonstall 290 

V. Slater 286, 287 

V. State • 217 

V. The Independence 498 

V. Thorndike 287, 288 

V. Wood 19, 443 

V. Woodman 83 

Brown's case 218, 344 

Browne v. Gumming 471 

V. Murray 74 

Bruff V. Conybeare 298 a 

Brunc v. Thompson 6 

Brunswick v. McKeen 20 

Brush D. Blanchard 513 

V. Wilkins 484 

Bryan v. Wear 483 



INDEX TO CASES CITED. 



SXIU 



Section 
Bryant v. rtittcnbush 858 

V. The lioval Exchange 



Ass. Co. 
Ikichanan v. ]\Ioore 
Ijucher v. Jari-att 
Buck V. Apjilcton 
Buckler v. MiHard 
Buckley v. Beardsley 
Buckminster r. Ferry 
Bucknam ?'. Barnuni 
Bulkley ik Landon 
Bull V. Clarke 
V. Loveland 
V. Strong 
Bullard v. Briggs 
BuUen v. Michel 
Bullock V. Koon 
Bunbury v. Bunbury 

V. Mathews 
Bmiker v. Shed 
Bunn V. Winthrop 
Bunnell v. Butler 
Burbank v. Gould 
Burchficld V. Moore 
Burd V. Ross 
Burden v. Cleveland 
Burgess v. Lane 

V. Merrill 

V. Steer 
Burghart i'. Angerstein 
Burgin v. Chenault 
Burke v. Miller 
Burleigh v. Stott 
Burlen v. Shannon 
Burley's case 
Burling v. Patterson 
Burlington v. Calais 
Burn V. Miller 
Burnett v. Phillips 

V. Smith 
Bumham v. Adams 
V. Allen 
V. Ay re 
V. Ellis 
V. Morrissey 
Burns v. Burns 

V. Fay 
Burrell v. Nicholson 
Burrougli v. Martin 
Burt V. Palmer 
Burtenshaw v. Gilbert 
Burton v. Griffiths 

V. Hinde 

v. Issitt 

V. Plummer 
Burgoyne r. Showier 
Busby V. Greenslate 
Bush V. Railing 
Bushell V. Barrett 



292, 294 
145 

35 

284 
268 
77 
177 
68 
554 
246, 452 
356 
266 
139, 142 
87 
239, 240 
92 
116 
288 
461 
26 
565, 568 
. 416 
551 
167, 418 
356 
• 58 
493 
301 
447, 532 
174 
525 
229 
572 
175 
803 
70 
532 
118 
74 
564 
113 
309 
273 
118 
76, 474 
436 
182 
273 
49 
891, 405 
112 
436, 437 
564 
397 
413 
373 



Bushwood V. Pond 
Bussard v. Levering 
Bustin V. Rogers 
Butcher v. Stuart 
]?utcher's Co. v. Jones 
Butler V. Alnutt 

V. Benson 

V. Butler 

V. Carver 

V. Collins 

V. Cooke 

V. Gale 

V. Moor 

V. Mountgarret 

V. Tufts 

V. Warren 

V. Wright 
Buttrick v. Holden 
Butts V. Swai'twood 
Buxton V. Cornish 



Section 

58, 72 

40 

118 

285 

422 

40 

436 

423 

95, 422 

53 

392 

280 

247 

40, 104 a, 131 

421 

391, 402 

116 

532 

369 

304 



Cabot V. Givin 
Caddy v. Barlow 
Cad well V. The State 
Cady V. Shepherd 
Cailland v. Vaughan 
Caine v. Horsefall 
Calder v. Rutherford 
Calhoun v. Dunning 
Calkins v. Evans 
Call V. Dunning 
Calvert v. Flower 
Cambridge v. Lexington 
Camden v. Doremus 
Cameron i\ Lightfoot 
Camoys Peerage (The) 
Camp V. Dill 
Campbell v. Hodgson 
V. Phelps 
V. Rickards 
V. State 
V. Tousey 
V. Tremlow 
Canal Co. v. Railroad Co. 
Cane v. Lord Allen 
Cannell v. Curtis 
Cauney's case 
Cannon v. Jones 
Card V. Grinman 
Careless v. Cai'cless 
Carleton v. Patterson 
V. Whitclier 
Carlisle v. Burley 
L\ Eady 
V. Garland 
V. Ilunley 



83, 92 

471 

54 

112, 174 

320, 324 

280, 294 

78 

260 

569, 572 

563 

47, 109, 293 
421 
210 
105 
174 
281 
533 
441 
156 
392 
339 
490 
80 
83, 92 
165 
402 
273 
289 
108, 322 
427 
392 

95, 422. 426 
180 
462 



XX ly 



INDEX TO CASES CITED. 



Section 

Carli-sle (Mayor of) v. BLamlre 211 

Carlos V. Brook 461 

C'arinack v. The Coinmonwealth ISO 

Carmalt v. Post 440 

C'armartlitMi, Mayor, &c. i'. Lewis 73 

Carne v. Litclilield 4ol 

V. Nicholl 109 

Carpenter v. Ambroson 434 a 

V. Dame 86 

V. GrolF 163 

r. Havward 49 

V. Ilollister 190 

V. King 281 

V. Leonard 101 

V. AVhal 54, 462 

Carpenters,. »S:c. of Shrewsbury 

V. Hay ward 405 

Carpniael v. Powis 239, 240 

Carr v. Bnrdis 571 

V. Cornell 334 

V. Gale 421 

Carrington v. Carnock 516 

V. Jones 155 

V. Ptoots 271 

V. Sthnson 322 

Carriss v. Tattershall 664 

Carroll v. Bowie 38 

V. Norwood 144 

V. The State 108 

V. Tyler 116, 120 

V. Waring 39 

Carskadden v. Poorman 104 

Carson's ease 65 

Carter v. Bennett 196, 204, 210, 523 

V. Boeliem 440, 441 

V. Buchanon 108 

V. Jones 76 

V. Pierce 408, 409 

V. Prvke 52 

V. Wilson 502 

Cartwright v. Williams 426 

Carver v. Jackson 22, 23, 189, 523 

V. Tracy 173 

In re 272 

Cary v. Adkins 185 

V. Gerrish 38 

V. Pitt 577 

Case V. Potter 118 

V. Reeve 523 

Cass r. Cameron 409 

Cassidy v. Stewart 6 

Casson v. Dade 272 

Cassis case 220, 222 

Castellana v. Peillon 375 

Castelli V. Groome 320 

Castle V. Bidlard 63, 358 

Casy V. O'Shaunessy 103 

Cates V. Hardacre 451 

Catlett V. Paeilic Ins. Co. 484 





Section 


Catlin V. Bell 


284 


Caton V. l^enox 


165 


Cator V. Stokes 


498 


Catt V. Howard 


179, 201, 439 



Caufman v. Cong, of Cedar 

Spring . 145 

Cavalier v. Collins ^ 118 

Cavan v. Stewart 514 

Cazanove v. Vaughan 516, 553, 554 

Central Bridge Corp. v. Butler 74 

Chabbock's case 219, 222, 379 

Chad V. Tilsed 293 

Chadsey v. Greene 182 

Chadwick v. Upton 402 

V. Burnlev 286 

Chaffee v. Baptist M.C. 272 

V. Thomas 420 

Chalfant v. Williams oOf) 

Chamberlain v. Carlisle 527, 531 

V. Gorham 349 

V. AVilison 451, 451 a 

Chamberlain's case 311 

Chambers v. Bernasconi 109, 115, 152 

Champion v. Plumnier 268 

Champney's case 257 

Champneys v. Peck 40, 116 

Chance v. Mine 423 

Chandler v. Grieves 5 

V. Home 432 

V. Le Barron 576, 581 

V. Mason 385 

V. Morton 385 

V. Von Boeder 49 

Chanoine v. Fowler 5, 488 

Chapel V. Washburn 181 

Chapin v. Curtis 523 

Chajiman v. Beard 196 

V. Callis 285 

V. Chapman 103 

V. Coffin 469 

V. Cowlan 135 

V. Emden 81 

V. Graves 356, 357 

V. Searle 207, 208 

V. Twitchell 182 

V. Walton 441 

Chap])ell V. Bull 24 

Chardon v. Olipliant 112 

Charleston, etc. 11.11. Co. 

V. Blake 114 a 

Charlton v. Lawry 118 

Charnock's case 379 

Chase v. IlathaAvay 603, 613, 518 

V. Jewett 281 

V. Lincoln 440 

V. Levering 357 

V. Smith 120 

V. Spencer 118 

Chatfield v. Fryer 138 



INDEX TO CASES CITED. 



XXV 



Section 

Chatfield v. Lathrop 423 

Chaurand v. Angerstein 280, 440 

Cheetliain v. Ward 427 
Chelsea Water- Works v. Cowper 21, 

570 

Chelmsford Co. v. Demarest 181 

Chenango v. Birdsall 356 

Cheney's case 289 

Cherry v. Boyd 145 

V. Slade 301 

Chesley v. Frost oG8 

Chess V. Chess 163, 165, 166, 168 

Chester v. Bank of Ivingston 305 

Cheyne v. Koops 395 

Child V. Chamberlain 358 

V. Grace 199 

Childrens v. Saxby 348 

Childress v. Cutter 484, 493, 498 

Chippendale v. Thurston „ ^'''t 

Chirac v. Reinicker 73, 237, 245 

Chitty V. Dendy 6 

Choate v. Burnham 293 

Choteau v. Kaitt 562 

Christian v. Combe 212 

Christie v. Bishop 178 

Church V. Hubbart 4, 487, 488, 514 

V. Shelton 171, 195 

Churchill v. Suter 379, 385 

V. Wilkins 58 

Churchman v. Smith 118 

Cilley V. Tenny 303 

Cincinnati v. WTiite 207 

Cist V. Zeigler 531 
Citizeu''s Bank v. Nantucket 

Steamboat Co. 426 
City Bank v. Adams 281 
City Bank of Baltimore v. Bate- 
man 113, 332, 452 
City Council v. King 331 
City of London v. Gierke 139 
Clatfin i\ Carpenter 271 
Clagett V. BhiUips 240_a 
Clancy's case • 373 
Clapp V. Balch 73 
V. MandeviUe 389 
V. Tirrell 26 
Clarges v. Shei'win 639 
Clark V. Alexander 174 
V. Barnwell 305 
V. Bigelow 440 
V. Bradshaw 112 
V. Carter 426 
V. Courtney 575 
V. Eckstein 5G4 
V. Faunce 17 
V. Fletcher 563 
V. Gilibrd 284 
V. Gleason 112 
V. Gray 66, 69 



Section 

Clark V. Hopkins yO 

V. Ploughman 191 

V. Irvin 537 

V. Johnson 428 

V. Kirkland 392 

V. Lucas 394, 397 

V. Lyman 40 

V. Magruder 116 

V. Munyan 301 

V. Richards 239 a 

V. Saunderson 575 

V. Spence 81, 348 

V. Trinity Church 493 

V. Vorce 437 

V. Waite 180 

V. Wilmot ■ 116 

Clark's case 65 

Ex'rs V. Carrington 180 
Ex'rs V. Reimsdvk 178, 257, 
2G0, 351 

Lessee v. Hall 375, 376 

Clarke v. Bank of IVIississippi 489 
V. Clarke 196, 204, 207 

V. Courtney 84, 142 

V. Gannon 408, 4^0 

V. Robinson 551 

V. Safferey 435 

V. Wvburn 361 
Clarkson v. Woodhouse 139, 141, 143 

Clary v. Grimes 189 

Clawson v. Eichbaum 38 

Claxton V. Dare 139 

V. Swift 533 

Clay V. Langslow 181 

V. Stephenson 320 

V. Williams 241 

Clayes v. Ferris 469 a 

Clayton v. Gregson 280 

Clealand v. Huey 164, 165 

Cleave v. Jones 237 

Cleaveland v. Flagg 301 

Cleaves r. Lord 68 

Cleveland v. Burton 200 

Clement v. Brookes 457 

V. Durgin 302, 304 

Clementi v. Goulding 5 

Clements v. Hunt 103 

Clementson v. Gandy 288 

Clerke i'. Isted 69 

Clermont v. Tulidge 581 

Cleves V. Foss 269 

Chlibrd v. Hunter 445 

V. Parker 564 

V. TurriU 285, 304 

Cllnan v. Cooke 269 

Cline V. Little 427 

Clinton v. Hooper 296 

Clipper (The) v. Logan 440 

Close V. Olney 451 



XXVI 



INDEX TO CASES CITED. 







Section 




Section 


Clothier v. Chapman 


52, 


137, 115 


Conunonwealth v. Abbott 


49 


Cloutman v. Tunison 




41)5 


V. Anthes 


49 


Clonji-h V. Bowman 




289 


V. Bachelor 


309, 370 


Cliiggage V. Swan 




116, 120 


v. Baird 


331 


Cluunes V. Pezzey 




37 


V. Becklcy 


05 


Coates V. Birch 




241, 245 


V. Bigelow 


97 


Cobb V. Newcomb 




40 


V. Bolcom 


513 


Cobleigh v. Young 




20 


V. Bosworth 


381 


Coburn i'. Odell 


451, 451 a 1 


V. Briggs 


341 


Coclirau v. Amnion 




358 


V. BuUard 


284 


Cocks V. Purdy 




487 


V. Buzzell 


52, 371, 


Cockshott V. Bennett 




172 




449 


Coe V. liutton 




197 


V. Bvi'on 


450 


Collin V. Jones 




254, 33S 


V. Ckll 


199 


Coghan v, Williamson 




572 


V. Carey 


577, 5.S0 


Cogswell V. Dolliver 




118 


V. Casey 


161 b 


Cohen V. Templar 




246 


V. Castles 


573 b 


Coit V. Milliken 




4,479 


V. Chase 


484 


V. Starkweather 




288 


V. Churchiir 


461 


v. Tracy 




112, 174 


V. Clark 


81 b 


Colbern's case 




340 


V. Col)b 


138 


Colcloiigh i\ Smith 




301 


V. Dame 


373 


Cole V. Anderson 




118 


V. Dana 


254 a 


V. Cole 




192 


V. Davidson 


563 


V. Hawkins 




316 


V. Downing 


382, 501, 


V. Jessup 




437 




513 


Cole's Lessee v. Cole 




376 


V. Drake 


229, 247 


Coleman v. Anderson 




20,46 


V. Dudley 


205 


In re 




272 


V. Eastman 197 a, 358, 


V. Southwick 




101 


303 


, 445, 581 


V. Wolcott 




349 


V. Eberle 


233 


Coles V. Trecothick 




269 


V. Eddy 


81 c 


CoUett V. Lord Keith 




193 


V. Elisha 


537 


Collier i\ Nokes 




192 


V. Emery 


91, 561 


V. Simpson 




440 


V. Ford 


513 


Collins V. Bayntun 




571 


V. Freely 


310 


V. Blante'rn 




284 


V. Frost 


414 


V. Godefroy 




310 


V. Galavan 


434 a 


V. Lemasters 




437 


V. Garth 


49 


V. ]VIatthews 




502 


V. Gibson 


158 


V. Maule 




84 


V. Goddard 


449 


V. McCrummen 




420 


V. Green 


375, 376, 


Colpovs V. Colpoys 




288 




421, 505 


Colseil V. Budd 




39 


V. Hargesheimer 430 


Colson V. Bonzey 




484, 494 


V. Ilarman 


220, 221 


Colt V. Miller 




66 


V. Harvey 


197 


Columbia (Bank of) « 


. Magruder 423 


V. Harwood 


108 


Columbia Ins. Co. v. Lawrence 2 


V. Hawkins 


34, 81 c, 


Columbia i\Ian, Co. v. 


Dutch 


353, 356 




462 


Colvin V. n. M. Proc. 


Gen. 


30 


V. Hill 


252, 366 


Comlje V. Corp. of London 


240 a 


V. Hills 


370 


V. Pitt 




210 


V. Horton 


537 


Combs V. Winchester 




402 


V. How 


223 


Commercial Bank of 


Albany 




V. Hunt 


449 


V. Hughes 




387 


V. Ilutcliinson 367 


Commercial Bank of Buffalo 




V. Ingraham 


469 


V. Kortwright 




568 a 


V. Jeffries 


40, 197 a. 


Commercial Bank of Natchez 






581 


V. Smith 




206 


V. Keuuey 


197, 199 



INDEX TO CASES CITED. 



XXVll 



Section 
Commonw(Talth v. Kimball 79 

V. King 158 

V. Knapp 200, 229, 
231,379 
V. Kneeland 5 

V. La hoy 79 

V. Littk-john 484 

V. Mausou 335, 303 
V. Marsh 330, 334, 
353, 357, 363 
V. Maxwell 78 

V. McKie 81 b 

V. McPike 108, 158 
V. Montgomery 108 
V. Morev 219, 220, 
223 
V. Mosler 222 

V. Moulton 412 

V. Murphy 54, 462 

V. Koi'cross 86 

V. Pamnenter 05 

V. PauU 403 

V. Pease 284 

V. Pejepscot Pro- 
prietors 24 
V. Phillips 601 
V. Porter 49 
V. Richards 165 
V. Ptoark 509 
V. Robbins 341 
V. Robinson 335, 407 
V. Rogers 81 c, 373 
V. Sackett 450 a 
V. Samuel 78 
V. Shaw 451, 450 a, 457 
V. Shepherd 253, 344 
V. Slocum 275 
V. Smith 252, 370 
V. Snell 362 
V. Stow 80 
V. Taylor 223 
V. Thurlow 79 
V. Tihlen 252 
V. Tuckermau 229 
V. Tuey 74 
V. Turner 53 
V. Vass 158, 159 
V. AVaite 414, 423 
V. Walden 34 
V. Webster 13 a, 18, 
54, 05, 81 b, 570 
V. Welch 442 
V. Wilson 440, 409, 
497 
V. Woelper 493 
V. York 18, 81 b 
Comparet v. Jernegan 489 
Comstock V. Hadlyme 74, 75, 70, 77, 

409 





Sectiou 


Comstock c. Paie 


392, 4oU 


V. Ray lord 


392 


Connecticut v. Bradish 


331 


Conover v. Bell 


452 


Conrad v. Grilley 


402 


Conyers v. Jackson 


71 


Cook V. Ashmead 


117 


V. Booth 


293 


V. Brown 


402 


V. Loxley 


207 


V. Moore 


53 


V. I'arsons 


272 


V. Remington 


349 


v. Soltan 


40 


V. Stearns 


270 


V. Totton 


21 


V. Wood 


84 


Cooke V. Curtis 


409 


V. Jenner 


533 


V. Wilson 





V. AVoodrow 


572, 575 


Cooley V. Norton 


113,450 


Coolidge V. Learned 


17 



V. Kew York Firemen's 

Lis. Co. 484 

Coombs V. Coether 139, 484 

V. Winchester 52, 449 

Coon V. The State 215 

V. Swan 239 a ■ 

Cooper V. Bocket 564, 580 

V. Gibbon 37 

V. Cranberry 40 

V. Marsden 572 

V. Morrell 118 

V. Mowry 207 

V. Shepherd 533 

V. Smith 201, 208 

V. Wakley 70 

V. Whitehouse 73 

Coote V. Berty 54 

Cope V. Cope 28, 253, 344 

Copeland i\ Tomlin 171 

V. Watts 246 

Copes V. Pearce 103 

Copp V. Uiiham 452 

Corbett et ul. v. Barnes 533 

V. Corbett 75 

Corbin v. Adams 113, 2s4 

Corinth v. Lincoln 108, 192 

Cornelius t'. State 108 

Cornell v. Green 105 

V. Vanartsdalen 338 

Cornish v. Puixh 341 

V. Searell 207 

Cornville v. Brighton 108 

Cornwall v. Isham 175, 333 

V. Richardson oo 

Corporations (the case of) 46 

Corps V. Robinson 197 



XXVlll 



INDEX TO CASES CITED. 



Section 

Corse V. Patterson '631 

Corsen v. Dubois 24G, 558 

Corsor v. Paul 197 

Cort V. IJirkbeck 139 

Corwciu V. Ilaines 331 

Cory V. Brctton 11)2 

Cossens v. Cossens 23, 26 

Ex parte 451 

Cossliam V. Goldney 395 

Coster V. Baring 559 
Costigan c. Moliawk & Hudson 

K. Co. 74 
Cotes V. Davis 185 
Cottle V. Payne 39 
Cotton V. James 76 
V. Luttrell 358, 361 
I'. Witt 310 
CottriU V. Myrick 302, 440 
Couc-li V. Meeker 283, 284 
CouL-^on V. Walton 5G4 
Couuden v. Clarke . 289 
Courteen v. Touse 435 
Courtnay v. Hoskins 544 
Covanliovan v. Hart 163 
Coveney v. Taunahill 245 
Covington, &c., R. 11. Co. v. In- 
gles 113 
Cowden v. Reynolds 443 
Cowling V. Ely 179 
Cowper V. E. Cowper 37 
Cox V. Allingham 618 
V. Bi-ain 205 
V. Copping 474 
V. Couveless 563 
V. Davis 572 
V. Hill 452 
V. Morrow 488 a 
V. Painter 73 
V. Parry 27 
V. Williams 385 
Coxon V. Lyon 61 
Coye V. Leach 30 
Coyle V. Coyle 84 
Crabtree v. Clark 564 
Crafts V. Hibbard 301 
Craib v. D'Airth 173 
Craig V. Brown 505, 506 
V. Cundel 392 
V. State 461 
Craigin v. Carleton 527 a 
Crane v. Marshall 109, 570 
V. Morris 23 
Crary v. Si)rague 163 
Craven's Case ' 65 
Cravin v. Shaird 118 
Crawford v. Mon-ell 56 
V. Spencer 281 
Cray v. Halls 201 
Creamer v. Stephenson 285 



Section 

Crease v. Barrett 103, 128, 130, 136, 
139, 153, 189 

Creeby v. Carr 445 

Creed, lii re 41 

Crenshaw v. Davenport 51 a 

Crew V. Blackburn 475 

V. Saunders 475 

Criddle v. Criddle 190 

Crippen i\ Dexter 469 

Crisp 0. Platel 240 

Crispin v. Daglioni 546 b 

V. Williamson 60 

Critclilow V. Pai-ry 196 

Crocker v. Crocker 289 

Crofton V. Poole 195 

Crofts V. Marshall 280 

Cromack v. lleathcote 240, 241 

Cronk v. Frith 572 

Crosby v. Percy 292, 572 

V. Wads worth 271 

Ci'oss V. Kave 92, 195 

V. Mill .485 

Crossfiekrs Case 255 

Croudson v. Leonard 5, 541 

Croughton v. I51ake 142 
Crowley v. Page 52, 81, 449, 462 
Crowninshield v. Crowuinshield 74, 

75, 76 

Crowninshield's Case 111 

Crowther v. Hopwood 373 

Cubbison v. McCreary 369 

Cudlip V. Rundle 60 

Culkin's Case 65 

Cumberland Bank v. Hall 564 

Cummin v. Smith 195 

Gumming v. French 192 

Cummings v. Arnold 302, 304 

Cundell V. Pratt 454, 456, 459 

Cunliffe V. Sefton 572, 574 

Cunningham i\ Knight 428 

V. Otis 320 

Cupper V. Newark 353 

Curren v. Crawford 117 

Currie v. Child 572 

Curry v. Lyles 26 

V. Raymond 485 

Curtis V. Belknap 573 b 

V. Ccnti-al Railroad 323 

V. Graham 358, 389 

V. (iroat 533 

V. ^larch 488 a 

V. Rickards 38 

V. Strong 369, 370 

V. Wlieeler 74 

Curzon v. Lomax 130, 139 

Cushing V. Billings 74 

Cushman v. Loker 375, 420 

Cussons V. Skinner 569 a 

Cutbush V. Gilbert 84, 116, 120 



INDEX TO CASES CITED. 



XXIX 



Cutler V. Pope 

V. Wriffht 
Cutter V. Nd\vling , 

V. Powell 
Cutts V. Pickering 
Cults, in Error, v. United States 
Cuyler v. McCartney 



D. 



Da Costa v. Jones 
Daggett V. Slmw 

Dailey v. N.Y. & N.H. RaUw 
Daily v. State 
Dale V. Hunifrey 
Dalison v. Stark 
Dalrymple v. Dalrymple 

Dalston v. Cotesworth 37 

Dan et al. v. Brown 172, 174, 17G, 

27; J 

Dana v. Fielder 292 

Daniel v. Daniel 239 a 

V. North 17 

V. Pitt 182 

V. Wilkin 142, 145 

Daniels v. Conrad 449 

V. Potter 111, 176 

Darby v. Ouseley 201, 439 

Dartmouth College v. Woodward 331 

Dartmouth (Countess) v. Roberts 189 

Dartmouth (Lady) v. Roberts 46, 512 

Davenport v. Freeman 385 

V. McKinnie 559 

V. The Commonwealth 49 

David V. Moore 348 

Davidson v. Bloomer 572 

V. Cooper 568 

Davies v. Davies 408, 463 

V. Humphreys 115, 152 

V. Lewis 137 

V. Lloyd 115, 147 

V. Lowndes 105 

V. Morgan 135, 154, 333, 395 

V. Mon'is 333 

v: Pierce 109, 147, 189 

V. Ridge 17G 

V. Waters 241 

Davis V. Barr 421 

V. Barrett 320 

V. Barrington 281 

V. Campbell 109 

V. Carlisle 564 

& Carter's case 374 

V. Dale 445 

V. Dinwoody 334, 340 

V. Fuller 115, 130 

V. Jenney 564 

V. Mason 75, 440 



Section 




Section 


271 


Davis V. Rainsford 




301 


488 a 


V. Robertson 




269 


187 


V. Salisbury 




349 


292 


V. Shields 




268 


245 


V. Sjjooner 


397 


568 


566 


V. State 


164 


165 


190 


V. Todd 




558 




V. Wood 


99 


524 




Daws V. Shed 




187 




Davlin v. Hill 




283 




Dawkins v. Silverlock 




5 


253 


Dawson v. Coles 




173 


109 


Day V. Moore 




513 


156 


V. Trigg _ 




301 


5 


Dayrell v. Bridge 




510 


282 a 


Deacle v. Hancock 




135 


90 


Deacon's case 




256 


488 


Deady v. Harrison 




180 



Dean, &c. of Ely v. Caldecott 150 

V. Dean 266 
Dearborn v. Cross 302, 304 

Deas i\ Darby 118 ' 

De B ode's case 109 
De Cosse Brissac v. Rathbone 54Gy 

Decker, Ex i^arte 568 a 

Deering v. Sawtel 385 
De la Chaumette v. Bank of 

England 81 a 

DelacroLx v. Bulkley 303 

Delafield v. Freeman 392 

V. Hand 503 

Delesline v. Greenland 27, 184 

Dellone v. Rehmer 387 

Deloah v. Worke 610 

Delogny v. Reutoul • 192 

Den V. Clark 556 

V. Downam 437 

V. Herring 145 

V. Johnson 341 

V. Oliver 208 

V. Southard 145 

V. Vreelandt • 503 

Denn v. Cornell 24 

V. Fulford 607 

V. ]\IcAlister 84 

V. Page 301 

I'- Spray 139 

V. White 185, 341 

Dennett v. Crocker 87 

t'. Dow 443 

r. Lawson 426 

Denning v. Roome 484 

Dennis v. Codrington 237 

Dennis's case 225 

Denslow v. Fowler 659 

Depeau v. Hyams 416 

Depue V. Place 581 

Derby v. Gallup 440 a 

De Rosnie i\ Fah-lie 390 



XXX 



INDEX TO CASES CITED. 



Section 

De RutJTv-en i\ Farr 150, liji 

Df^borougli i\ Kuwlins 242, 244 

Dcscadillas r. Harris 4IG 

Dt'shon v. JNK'rchaiits' Ins. Co. 4G9 

Ut'spau V. Swindler C 

])e Symonds v. De la Cbur 394 

Uevonslure (D. of) v. Lodge 293 

Dewdney v. Palmer 421 

Dewey v. Dewey 272, 572 

' V. Field 207 

De Whelpdale v. Milburn 189, 210 

Dewhurst's ease 228 

De Wolf v. Strader 239 a 

Deybel's case 6 

Dezell V. Odell 207 

Dicas V. Lawson 319 

Dickenson v. Coward 195 

V. Dickenson 192, 384 

V. Fitchburg 440 a 

V. McCraw 519 

V. Prentiss - 399 

V. Sliee 445, 447 

V. Valpey 207 

Dickernian v. Graves 253 a, 335, 344 

Digby V. Stedman 116 

V. Steele 97 

Dillon V. Dillon 440 a 

V. Harris 288 

Dillon's case 220 

Dimiek v. Brooks 648 a 

DI Sora (Duchess) v. Plullips 514 a 

Disraeli v. Jowett 484 

Ditchlnirn v. Goldsmith 253 

Divol V. Leadbetter 195, 207 

Dix y. Otis 281 

Dixon u. Cooper 115, 41() 

V. Hammond 207 

V. Sinclear 530 

V. Vale 451, 451 a 

Doak V. AViswell 532 

Dobbs V. Justices 108 

Dodd V. Norris 54, 451 

Doddington v. Hudson 409 

Doddington's case 26 

Doer. Allen 197,291 

V. Andrews 245 

V. Arkwright 484, 493 

V. Askew 484 

V. Austin 109, 189, 207 

V. Barnes 75, 92, 493 

V. Bell 263 

a. Benson 2.S0 

V. Beviss 300 

V. Beynon 142, 291 

V. Biggs 197 

V. Bingham 265, 406, 568 

V. Bird . 186 

V, Brawn 8/) 

V. Bray 104, 485 



Doe V. 

V. 
V. 
V. 
V. 
V. 

V. 

V. 
V. 
V. 
V. 

V. 



Burdett 

Burt 

Campbell 

Caperton 

Carpenter 

Cartwright 89 

Catamore 

Chichester 

Clillbrd 

Cole 

Cooke 

Coombs 

Co}'le 

Davies 

Davis 

Deakin 

Derby 

Durnfbrd 

E. ol' Jersey 

Edwards 

Errington 

Flemming 

Ford 

Foster 

Freeland 

Galloway 

Gilbert 

Gord V. Needs 

Green 

Greenlee 

Grey 

Griffin 

Gwillim 

Harris 

Harvey 

Hathaway 

Hawkins 

Hertford 

Hilder 

Hirst 

Hodgson 

Holt on 

HTd)l)ard 

Huddart 

Hurst 

Huthwaite 

Jack 

Jesson 

Johnson 

Joinvllle 

Jones 

Keeling 

Keley 

Kemp 

Lambly 

Langdon 

Langfield 

Lea 



Section 

570 
287 
109 
272 
272 
90, 150, 484, 
493 
564 

287, 291, 301 

560 

189 

46 

81 

94 

49,' 103, 570 

272 

41, 570 

164 

669 

287 

73 

73 

107 

284, 285 

164, 197 

286 

301 

84, 241 

290 

109 

84 

561 

41, 103 

277 

241 

87 

574 

113 

246 

5 

668 

560 

287 

291, 301 

535 

46 

288, 289, 291 

84 

41 

78, 335, 573 

288 

109, 147, 189 

142 

559 

53 a 

280 

241, 246 

109 

208 



INDEX TO CASES CITED. 



XXXI 



Doe v, 

V. 
V. 
V. 



Thy 



Lewis 

Lloyd 

Long 

Ld. Geo 

Lyford 

Maisey 

Manifold 

Martin 

Mason 

Mew 

Michael 

Miles 

Morgan 

INIurray 

Nepean 

New'ton 

Palmer 

I'assingham 

Payne 

Pearee 

Pegge 

Pembroke (E 

Penfold 

Perkes 

Perkins 

Pettett 

Phelps 

Phillips 

I'reece 

Piilman 

Pye 

Randall 

Reed 

Richards 

Rickarby 

Roast 

Roberts 

Robson 

Ross 

Rowe 

Rowlands 

Samples 

Seaton 

Shelton 

Sisson 

Sleenian 

Smart 

Smythe 

Somerton 

Stacy 

Staple 

Statham 

Steel 

Stephenson 

Stiles 

Suckermore 

580 
Sybourn 
Tarver 



73, 



Section 

658 

24 

7;5 

nne 1 ,')-i 

301 

389 

272 

277, 287, 2'Jl 

loO 

518 

lo4 

97 

289 

166 

41 

578, 580 

564 

144 

25, 109 

142 

207 

of) 104 

42 

273 

436, 437, 438 

109, 189 

144 

141 

406, 534 

558 

197 

103 

46 

186 

109, 189 

291 

142 

116, 147, 153 

84, 245, 560, 582 

73 

81 

21 

241, 484 

23 

52, 130 

136 

75 

207 

561, 562 

154 

46 

23 

210 

469 

570 

577, 579, 



576. 



46, 212, 551 
578 



Section 

Doew. Taylor 291 

d. Taylor v. Roe 145 

V. Thomas 145, 246 

V. Tooth y:;;j, 391 

V. TuWord 40, 115, 116, 120, 

147 

V. Tyler 151, 386, 390 

V. Vowels 116, 151 

V. Wain-ttTight IKO 

V. Watson ;)7 

V. Webl)er 109, 110 

V. Wheeler 286 

v. Whitcomb 115, 151, 154 

V. Wilde 406 

1-. Wilkins 571 

V. Williams 147, 392, 406 

V. Wolley 21, 570 

V. Wonibwell 197 

V. Young 92 

Doherty v. Clark 28 

Doker v. llasler 254, 337 

Dolby V. lies 211 

Dolder V. Ld. Huntingfield 6 

Dole V. Allen 86 

Donaldson v. Jiide 510 

V. Winter 509 

Doncaster v. Day 163 

Donelson v. Taylor 421 

Donn V. Lipjmian 546 

Donnel v. Jones 435 

Donnelly v. State 445 

Donnohoo i'. Brannon 506 

Doolittle V. Holton 40 

Doorman v. Jenkins 108 

Dorlon v. Douglass 251 

Dome V. Southwork Man. Co. 114 

Dorr 0. Fenno 69 

V. Muusell 284 

Dorset (D. of) v. Ld. Ilawarden 292 

Dorsey v. Dorsey 189, 545 

Doty «. Wilson ' 421,429 

Douglas V. Hart 118 

V. Saunderson 104, 349, 575 

Douglass c. Rrancli Bank 5 



p. Mitchell 
V. Reynolds 
V. Spears 
V. Tousey 
Dover v. Marston 
Dow V. Sawyer 
DoAvden r. Fowle 
Do^vner v. Rowell 
Downs L\ Cooper 
Dows V. McMichacl 
DoArton i\ Cross 
Drake r. Ilenlev 
r. jNIerriil 
r. Mitchell 
V. Mooney 



44 
288 
268 
54, 55, 461 
378 
116 
180 
436 

25 
531 
181 
385 
532 
533 

40 



XXXll 



INDEX TO CASES CITED. 



Piaii^zuot V. ProucTliomme 
Draper v. Garratt 

V. Sykes 
Dra^ion v. Dale 

V. Wolls 
J)ri'nneu i\ Liudsey 
Drew's case 
Drew V. "Wood 
Drinkwater v. Porter 
Drouet v. lliee 
Drown v. Smith 
Dro^v^le v. Stiippson 
Drummoiid v. Attorney-General 

V. Ma ji ruder 

V. Prestiuan 
Druininond's case 
Dnnnright v. Pliilpot 
Du Barre v. Livette 
Du Bost V. Bereslbrd 
Duchess of Kino-stou's case 



Section 

74 

60 
180 
207 
163 
4(52 
219 
450 
140 
20 
207 
349 
280 
60(3 
187 
156 
112 
239, 247 
100, 101 
248, 43G, 
523 
320 
118 
484 
572 
390 
ISO 
240, 241, 245 
301 
427 
672, 575 
128 



Ducket V. Williams 
Ducoigne v. Schreppel 
Dudley v. Graj'-son 
V. Summer 
Duel V. Fisher 
Duffield V. Scott 
Duffin V. Smith 
Dugan V. Seekright 
Duke V. Pownall 
Dunbar v. Mardeu 

V. Mulry 
Duncan v. Beard 
V. Hodges 
v. Mickleham 
Dundas v. Ld. AVeymouth 
Dunham's A])peal 
Dunham v. Branch 

V. lliley 
Dnnlap i'. Waldo 
Dunn V. Aslett 
V. Murray 
V. Paokwood 
V. Snell 
V. Snowdon 
V. The State 
V. Whitney 
Dunning v. Roberts 
Dunraven i\ Llewellyn 
Dupuy V. Truman 
Durell V. Bederley 
Durham (Bp. of) v. Beaumont 
Durkee v. Leland 

V. Vermont Central Rail- 
road 
Durore's case 
Durston v. Tutham 
Dutton V. Gerrish 



142 

568 a 

389 

69 

440 

426 

559 

50(5 

444, 407 

532 

386 

190 

41 

168 

118 

2(;9 

145 

93, 437 

441 

409 
239 a 



84 

05 

60 

281 



V. Woodman 112,177,407,532 



Section 

Duval V. Bibb 26 

Dwight V. Linton 288, 322 

Dwinel v. Pottle 117 

Dwinell v. Larrabee 561 

Dwyer v. Collins 245 

Dyer v. Ashton 205 

V. INIorris 432 

V. Smith 488 

V. Tymell 348 

Dyke v. Aldridge 180 

Dykers v. To^\msend 208 

Dyson v. Wood 513 



E. 



Eagleton v. Gutteridge 568 

Eames v. Eames 42 

Earle v. Baxter 20 

V. Lewis 142 

V. Picken 45, 200, 203 

V. Sawyer 118 

Easby tJ. Aiken 118 

Eason v. Chapman 461 

East V. Chapman 451 

East India Co. v. Campbell 451 

V. Evans 349 

V. Gossing 416 

Eastman v. Bennett 108 a 

V. Cooper 532 

V. Martin 105 

V. Tuttle 207 

V. Winship 167, 418 

Edge V. Pemljertou 52 

Edgell V. Bennett 254 

Edgerly v. Emerson 279, 305 

Edgerton v. Wolf 176 

Edie V. East India Co. 5 

Edmiston v. Schwartz 506 

Edmonds v. Lowe 391, 401, 416 

V. Rowe 371 

V. Walter 435 

Edward Altham's case 301 

Edwards v. Crock 102 

V. Matthews 76 

V. Weeks 302 

Egg I'. Barnet 38 

Errgleston V. Speke 179 

Eieke V. Nokes 241, 245 

Eld V. Gorham 480 

Elden v. Keddell 519 

Ehler y. Warlield 118 

Elderton's case 6 

Eldridge v. Knott 20, 45 

Eldridge's case 217 

EUe V. Gadsden 286 

Elkin V. Janson 80 

Elkins V. Hamilton 108 

EUieott V. Pearl 137, 146 





INDEX TO C 

Section i 


VSES CITED. 


XXX 111 

Section 


Elliott V. Evans 




6 


Evans v. Hettick 


365, 


389 


V. Heath 




164 


V. King 




69 


V. Piei-sol 


103, 104, 


132 


V. Morgan 




1117 


V. Porter 




53o 


V. Rees 139, 


313 


319 


V. Smith 




207 


V. Roberts ' 




271 


Ellis V. Ellis 




86 


V. Smith 




341 


V. I'ark 




5 


V. Tarleton 




548 


V. Saltan 




249 


V. Yeathcrd 




395 


V. Smith 




323 


Everett v. Lowdlian 




432 


V. Thompson 




292 


Everingliam v. Roundell 




84 


V. Watson 




210 


Ewer V. Ambrose 


442 


443 


V. Willard 




305 


Evvins V. Gold 




392 


Ellison V. Cookson 




296 


Exchange Co. v. Boyce " 




498 


EUmaker v. Bulkley 


445 


447 


Ex parie Kip 




175 


Elsara V. Faucett 


54 


102 








Elston V. Wood 




179 








Elting V. Seott 




212 


F. 






lOlton V. Larkins 


186 


449 








Elwood V. Deifendorf 


189 


420 


Fabens v. Tirrell 




81 a 


Ely V. Ely 




564 


Fabyan v. Adams 




322 


Emerson v. Blonden 




185 


Faeey v. Hurdon , 




49 


V. Brigham 




398 


Fairchild v. Dennison 




118 


V. Fisk 




562 


Faircloth v. Jordan 




560 



V. Lowell Gas Light Co. 440 a 

V. Murray 564 

' V. Providence 420 

V. Tolman 570 

V. White 103 

Emerton v. Andrews 396 

Emery v. Beriy 489 

V. Fowler 165, 523 

V. Grocock 46 

V. Twombly 472 

Emmerson f>. Heelis 269, 271 

Emmett v. Butler 356, 358 

Emmons v. Hayward 75 

V. Littletield 26 

V. Oldham 20 

Empson v. GritHn 73 

England v. Slade 25 

Engles V. Bruington 572 

English V. Sprague 513 

Ennis v. Smith 514, 525 

Enos V. Tuttle 108 

Ensign v. Webster 212 

Enterprise (The) 113 

Ephraims v. Murdoch 164, 165 

Ereskine v. Murray 5 

Ernest v. Brown 73 

Erskine v. Boyd 322 

V. Plummer 271 

Estill V. Taul 530, 531 

Estrella (The) ^4 

Eustis V. Parker 175 

Evans v. Birch 80 

V. Eaton 389, 421, 423, 552 

V. Getting 497 

V. Gibbs 354 

V. Gray 423 



Fairfield Turn. Co. v. Thorp 332 

Fairlie v. Denton 198, 199 

V. Hastings 113, 114 

Fairmaner v. Budd 212 

Fail-title v. Gilbert 24 

Falkner & Bond's case 217 

V. Earle 293 

Falls V. Belknap 175, 331 

Falmouth (E. of) v. Bobbins 564 

(Ld.) V. George 40o 

V. Moss 248 

V. Thomas 271 

Faner v. Turner 108 

Farley v. King 552 

Farmers' Bank v. Whitehill 115, 116, 

147 

& Mech. Bank v. Boraef 437 

V. Dav 299 

V. Ward 489 

Farnsworth v. Briggs 518, 519 

Farr v. Swan 485 

Farrant v. Spencer 288 

Farrar v. Farrar 265 

V. INIerrill 46 

V. Stackpole 286, 293 

V. Warlield 440 

Farrow v. Bloomfield 463 

Farwell v. Hillard 539 

Fassett v. Brown 572 

Faucort v. Bull ■ 396 

Faunce v. Gray 1 '6 

Faxon r. Hollis 117, 118 

Fay V. Prentice ^ 

Fazakerly v. AViltshire 6 

Feemster v. Ringo ^ 

Fellows V. AViUiamson 108 



XXXIV 



INDEX TO CASES CITED. 





Section , 




Section 


Felter v. ]\Iiilliner 




510 


Flinn V. M'Gonigle 




558 


Fenn v. Granger o30, 353, 


354, 


452 


Flint V. Allyn 




356 


Fenner v. Lewis 




187 


Flourenoy v. Durke 




548 


Fenno v. Weston 




199 


Flower v. Herbert 


204, 


207 


Fenwick v. Bell 




440 


Floyd V. Bovard 




445 


V. Read 




154 


V. Ricks 




5 


V. Reed 




239 


Fogg V. Child 




114 


V. Thornton 




179 


V. Dennis 




581 


Fenwick's case 




251 


Folkcs V. Chadd 




440 


Ferguson v. Harwood 56, 68 


, 60 


506 


FoUain c. Lefevre 




6 


I'. Malion 




546 


Folsom /;. 'Manchester 


2 


52 a 


Fernandez, ex parte 




451 


V. Mussey 




304 


Fernandis & Hall v. Henderson 


369 


Fonnereau v. Foyntz 




288 


Ferrer's case 




19 


Foot V. Glover 




532 


Ferrers v. Arden 




533 


V. Tracy 




55 


V. Slairley 




577 


Foote V. Cobb 




572 


Fetherly v. Waggoner 




570 


i;. Hayne 




239 


Fiedler v. Smith 




66 


Forl)es v. Wale 21, 144, 


349, 


570 


Field V. Holland 




178 


Ford V. Ford 




461 


V. JVlitchell 




394 


V. Gray 




23 


V. Snell 




428 


Forrest v. Shores 




26 


V. Winslow 




69 


Forrester v. Pigou 167, 392, 


395, 


418 


Fife V. Commonwealth 




219 


Forshaw v. Lewis 239 a. 


241, 


559 


Fifield V. Smith 




422 


Forster v. Hale 




266 


Filnier v. Gott 




284 


Forsyth v. Ganson 




176 


Finch V. Bp. of Ely 




474 


Forsythe t\ Norcross 


' 


117 


Finn's case 




163 


Foi't v;. Clarke 


104, 


204 


Firkin v. Edwards 




562 


Fortescue & Croak's case 




349 


Fischer v. Morse 




829 


Foss V. Haynes 




456 


Fish V. Hubbard 




300 


Foster v. Alanson 




303 


V. Skut 




34 


V. Beals 




212 


V. Travers 


75, 76, 


V. E. of Derby 




536 


Fisher v. Bartlett 




207 


V. Hall 237, 


240 


241 


V. Dane 




18 


V. Jolly 


281 


304 


V. Kitchingman 




510 


V. Mackay 




558 


i'. True 




190 


V. Pierce 




451 


V. Tucker 




112 


V. Pointer 




562 


V. Willard 




421 


V. Shaw 


165 


539 


Fiske V. Ronald 




451 


V. Sinklcr 




118 


Fitch V. Bogue 


349 


, 558 


V. Trull 




521 


V. Hill 




342 


Foster's case 




65 


V. Smallbrook 




375 


Fotheringham v. Greenwood 


387 


395 


Fitchburg Bank v. Greenwood 


288 


Foulkes V. Selway 


64 


101 


Fitler v. Shotwell 


485 


, 493 


Fonts V. State 




220 


Fitzgerald v. Elsee 




572 


Fountain v. Coke 




347 


V. Fauconberg 




564 


V. Young 




241 


Fitzhugh V. AViuuin 




305 


Fowler v. Coster 


75, 76 


Fitzwalter Peerage 




580 


V. Etna Ins. Co. 




64 


Flagg V. Mann 




421 


V. Merrill 




323 


V. Mason 




109 


V. Savage 




539 


Flanders v. Davis 




38 « 


Fox V. Adams 




347 


Fleming v. (xilbert 


302 


, 304 


V. Clifton 




207 


V. (iooding 




207 


V. Jones 




472 


Fletcher v. Eraddyl 




40 


V. Keil 




569 


V. Froggatt 




201 


V. Whitney 




385 


V. Willard 


305 a 


V. Widgery 




25 


Flight, ex parte 




285 


Foxeroft v. Kevens 


187 


, 356 


Flindt V. Atkins 




514 


France v. Lucy 




562 


Flinu V. Calow 




281 


Franchot v. Leach 




284 



INDEX TO CASES CITED. 



XXXV 



Section 

Francla's case 217, '2o^) 

I'rankliu Jkiiik v. Freeman 416 

Fraser t'. Harding 4;J0 

V. Hopkins 494 

V. Marsh 179, 427 

Frayes v. Worms 546 g 

Frazier v. Laughlin 356 

Frear v. Evertsou 172, 329, 347, 353 

V. Hardenbergh 271 

Free v. Hawkins 281 

Freeholders, &c. v. State 20 

Freeland v. Keren 197 

Freeman v. Arkell 2o2 

V. Brittin 385 

V. Lucket 387 

V. Morey 40 

V. Phillips 132, 135, 139 

V. Thayer 20 

V. Walker 210 

French v. French 550 

V. White 53 

Friedlander r. London Assur. Co. 443 

Frith V. Barker 280 

Frontine v. Frost 80 

Frost V. Everett 304 

V. Holloway 459 

V. Shapleigh 521 

« V. Spaulding 301 

Frye». Barker 118,174 

V. Gragg 164 

Fuller V. Crittenden 212, 305 

V. Hampton 175, 192 

V. Rhe 322 

V. Whcelock 417 

Fulton V. Hood 440 

Fulton Bank i\ Stafford 447 

Furber v. Ililliard 362 

Furbush v. Goodwin 305, 469 a 

Furly V. Newham 312, 320 

Furman v. Ray 118 

Furneaux v. Hutcliins 52 

Furneanx's case. 65 

Fursden v. Clogg 113, 149, 152 

Fyler o. Givens 268 

Fyson v. Kemp 508 



G. 

Gabay v. Lloyd 
Gainsford v. Grammar 
Galbraith v. Galbraith 
Gale V. Lincoln 
V. Nixon 



292 

245 

423 

197 a 

268 



Galena, &c. R.R. Co. v. Fay 108, 462 
Gaudolfb v. State oo 

Garden v. Creswell 319 

Gardere v. Columbian Lis. Co. 514 
Gardiner v. Croasdale 61 



Section 

Gardiner r. McMahon 113 

(Gardner v. Way 118 

Garey v. Nicholson 201 

Garlock v. Geortner 38 

Garnett v. Ball 184 

Garrels v. Alexander 577 

Garrett v. Stewart 26 

Garrott v. .Johnson 165, 532 

Garth V. Howard 113 

Garwood v. Dennis 24 

Gass (5. Gass 175 

V. Stinson 421, 445, 461, 554 

Gathercole v. Miall 558 

Gaul V. Fleming 76 

Gay V. Bowen 112 

Geach v. Ingall 73, 76 

Gebhardt v. Shindle 430 

V. Skinner 365 

Geery v. Hopkins .474 

Gelston V. Hoyt 541, 543 

Gening v. The State 79 

George v. Joy 305 a, 436 

V. Kimball 409 

V. Pierce 167 

V. Sargent 356 

V. Stubbs 423 

V. Surrey 577 

V. Thompson 562 

Gerding v. Walter 38 

Gerrish v. Cummings 356, 357 

V. Sweetser 192 

V. Towne 287 

Getchell v. Heald 1 7-4 

Geter «. Martin 119 

Gevers v. Mainwaring 394, 417 

Geyer v. Irw'm 316 

Gibblehouse v. Strong 109, 190 

Gibbon V. Coggan 97 

V. Featherstonhaugh 38 

Gibbon's case 484, 493 

Gibbons v. Powell 562 

Gibbs V. Bryant 358, 427 

Gibney's case 229 

Gibson v. Hunter 53 

V. Jeys 80 

V. McCarty 362 

V. Peebles 121 

V. Stevens 6 

V. Watei-house 78 

V. Winter et al. 173 

Gilbert v. Bulkley 265 

V. Manchester 430 

V. Thompson 532 

Gilchrist v. Bale 102, 341 

Gilderslceve v. Caraway 165 

V. Mahoney 201 

Giles V. O'Toole 440 

Gillard V. Bates 244 

Gilleland v. Martin 41 



XXXVl 



INDEX TO CASES CITED. 





Section 






Section 


Gillet V. Sweat 




664 


Gorton V. Hadsell 


49 


(iilliam v. State 




461 


Gosling V. Birnie 


207 


Gillies V. Siuitlier 




84 


Goss V. Ld. Nugent 


302 


Gilli^lian v. Tebl)etts 




112 




V. Tracy 


168, 572 


Gillilan.l r. Sellers 




6 




V. Whatlington 116, 


147, 149, 


Ciilinore v. Bowileu 




348 






187 


Gihnu V. Vineent 


333 


388 


Gough V. Cecil 


675 


Givens v. Bradley 




65 




V. Gough 


67 


V. Filer 




2G8 




V. St. John 


64 


Glascock V. Hayes 




532 


Gould V. Barnes 


69 


Gleadow v. Atkin 115, 116, 


122, 


149, 




V. Crawford 


165 






153 




V. James 


331 


Gleason v. ]McVicar 




60 




V. Jones 


578 


Glen V. Grover 




260 




V. ISIcCarty 


560 


Glenn v. Rogers 




562 




V. Norfolk Lead Co. 


277, 416, 


Glossup V. Pole 




556 






4G2 


Glubb V. Edwards 




572 




V. Oliver 


205 


Glynn v. Bank of England 


117 


121 


Goulding V. Clark 


540 


Goblet V. Beechy 




288 


Governor v. Bell 


498 


Goddard v. Gardner 


239 a 




V. Daily 


426 


V. Ingram 




112 




V. Gee 


420 


Goddard's case 




24 




V. JelFreys 


498 


Godefroy i". Jay 




508 




V. McAli'ee 


498 


Godfrey v. Norris 




672 


Gower v. Emery 


245 


(ioldie c. Gunston 




207 


Gi 


afton Bank v. Moore 


177 


i\ Sliuttleworth 




186 


Gragg V. Frve 


66 


Goldshede v. Swan 




285 


Gi 


aham v. Whitcly 


540 


Goldsmith v. Bane 




581 


Granger v. Warrington 


'237 


V. Picard 




64 


Grant v. Jackson 177 


, 204, 210 


Goldstone v. Davidson 




513 




V. Maddox 


•292 


Goltra V. Woleott 


253 a 




V. McLachlin 


541 


(iooch V. Bryant 




664 




V. llidley 


320 


Goodacre v. Breame 




395 




V. Thompson 


440 


Goodell V. Smith 


96 


281 


Grantham v. Canaan 


39 


(roodfellow (;. Inslee 




566 


Graves v. Jo ice 


535 


(ioodhay v. Hendry "Do, 392, 


422 


426 




V. Key 


207, 212 


Goodhue V. Bartlett 




323 


Gray v. Davis 


501 


(ioodier v. Lake 




558 




V. Gardnier 


46 


Goodinge v. Goodinge 




288 




V. Goodrich 


108 


(ioodman v. Harvey 




81a 




V. Harper 


280, 296 


V. James 




506 




V. Palmer 


174, 177 


Goodrich v. Longley 


281 


286 




V. Pentland 


261 


Goodright v. Hicks 




65 




V. Pmgry_ 


631 a 


V. Moss 103, 134 


253 


344 


Gi 


•ayson v. Atkinson 


272 


V. Saul 




106 


G 


•eat Falls Co. v. Worcester 145 


V. Strai)han 


668 a 


Gi 


•eat Northern K.R. Co. v. 


Ilar- 


Goodtitle I'. Baldwin 




45 




rison 


287 


V. Brahaiu 


76 


434 


Gi 


•eaves v. Hunter 


681 


V. Clayton 




443 


G 


•eely v. Smith 


632 


V. Southern 




301 


G 


•een v. Brown 


41 


V. Welford 347 


419 


429 




V. Caulk 


436 


Goodwin V. Appleton 




6 




V. Chelsea 


570 


V. Hul)lnird 




266 




V. Howard 


288 


V. West 




311 




V. Jones 


392 


Goodwright v. Downshire 




288 




V. New River Co. 


394, 627 


Gore V. Elwell 




509 




V. Pratt 


118 


Gorham v. Canton 




108 




V. Proude 


609 


V. Carroll 


385 


, 452 




V. Rngely 


488 a 


Gorton v. Dvson 




518 




V. Salmon 


392 



Green v. Sutton 
V. Waller 
Greene v. Clarke 
V. Durfee 
Greenleaf «. Qnincy 
Greeuough v. Eocles 
V. Gaskell 



237, 



V. West 
Gregory i\ Baugh 

V. Dodge 

V. Howard 

V. Parker 

V. Tavernor 

V. Thomas 
Grellier v. Neale 
GrenffU v. Girdleston 
Greville v. Chapman 
Grey v. Young 
Grierson t\ Eyre 
Griffin v. Brown 342, 

V. Montgomery 
Griffin's case 
Griffing V. Harris 
Griffitli V. Davies 

r. Williams 
Griffiths V. Williams 
Griffits I'. Ivery 
Grigg's case 
Grimes v. Kimball 
Grimwood v. Barrett 
Griswold V. Pitcairn 
Grote V. Grote 
Guernsey v. Carver 
Guidon V. Robson 
Guild V. Lee 

Guihl's case 217, 219, 221, 
Guinness r. Carroll 
Gully V. Grubbs 
Gunnison v. Gunnison 
Gunter v. Watson 
Gurney v. Langlands 
Gurr V. llutton 
Gutteridge v. Smith 
Guy V. Hall 

V. Sharp 
Gwinnett v. Phillips 
Gyles V. Hill 

H. 

Habershon ii. Troby 

Hacker v. Young 

Hacket v. Callender 197 a, 

V. ^lartin 
Hackett v. King 
Hackley v. Patrick 
Hackman v. Fernie 
Haddow V. Parry 

VOL. I. 



DEX TO C 


ASES CITED. 


XXXVll 


Section 




Section 


3bG 


Haddrick v. Rainc 


49 


5 


Hadduck v. Wilmarth 


385 


532 


Hadjo V. Gooden 


469 


428 


Hadley v. Carter 


108 


112 


V. Green 


532 


444 


Hadri(;k v. Heslop 


357 


239, 242, 


Haffelfinger v. Shutz 


564 


244 


Hagaman v. Case 


118 


3»5 


Hagedoorn v. AUnutt 


310 


103 


Hagedurn i\ Rcid 


116 


420 


Haig V. Newton 


437 


192 


Haigh V. Belcher 


52, 449 


185 


V. Brooks 


485 


466 


Haile v. Palmer 


485, 493 


55 


Haines v. Dennett 


385 


572 


Haire v. Wilson 


18 


39 


Hale V. Ross 


489 


440 


V. Russ 


567, 568 


102, 430 


V. Smith 


398 


4 


Hale's Ex'rs v. Ard's Ex'rs 


117 


, 395, 539 


Haley v. Godfrey 


427 


114 a 


Halifax's case 


40 


220 


Hall V. Ball 


84 


385 


V. Baylies 


392 


245 


V. Cazenove 


285 


578 


V. Cecil 


395, 401 


27, 186 


V. Fisher 


301 


580 


V. Gettings 


145 


339, 340 


V. Glidden 


117 


558 


V. Hale 


391 


60 


V. Hill 


185 


4 


V. Hoddesdon 


552 


47 


V. Houghton 


443 


532 


V. Manchester 


509 


207 


V. Odber 


546 


179, 537 


V. Phelps 


569 


, 222, 223 


V. Steamboat Co. 


426 


546 


V. Wiiitc 


208 


26 


V. Williams 


502, 548 


310 


Hallet V. Mears 


310 


435 


Hallett V. Cousens 


463 


580 


Halliday v. Martinett 


116 


101 


Haly V. Lane 


207 


205 


Ham V. Ham 


6,25 


385 


Hamblin's Succession 


550 


287, 291 


Hamer v. Sowerby 


559 


60, 66 


Hauultou V. Cutts 


180, 394 


508 


V. Marsden 


572, 575 




V. Minor 


. 145 




V. Williams 


167, 572 




. Hammatt v. Emerson 


113 


249 


Ilammick v. Bronsou 


107 


484 


Hannnon v. Huntley 


176 


I, 199, 207 


Hammond v. Steward 


314 


190 


Hammond's case 57 


3, 580, 581 


108 


Hampshire v. Pierce 


291 


112 


Hampton v. McConnell 


504 


73, 76 


Hanbury v. Ella 


73 


116, 147 


Hancock v. Bai'rett 
d 


548 



XXXVlll 


INI 


)EX TO ( 

Section 


Hancock v. Welsh 




631 


Haiidlcy v. Edwards 




402 


Haiiiialord r. Hunn 




532 


Hauuay r. Stewart 




113 


Hoiiover (K. of) i\ Whc 


atley 


4G7, 554 


Hansard r. Robinson 




558 


Hanson c. Eustace 




37 


V. Parker 




180 


V. Sliacklcton 




5 


r. Stetson 




2S1 


Hard v. Brown 




101 


Harden r. Gordon 




212 


Harding c. Carter 




208 


V. Greening 




36 


V. Hale 




632 


V. Mott 




385 


Hai-dnian v. Wilcock 




207 


] lardy v. The State 




49 


Hare v. Mmm 




76 


Harder v. Edmonds 




440 


Ilargrave v. Hargrave 




103, 166 


Harnian v. Lesbrey 




391, 401 


Harnum's case 




225 


Harmer v. Davis 




207 


Ilariaon v. Arthur 




427 


Harness v. Tlionipson 




356 


Harnett v. .lohnson 




81 


Harper v. Burrow 




164 


V. Gilbert 




477 


Harrington v. Fry 




677 


V. Lincoln 


192, 


449, 469 


Harris v. Fornian 




284 a 


v. Harris 




215 


V. Holmes 




51 a 


V. Johnston 




305 a 


V. Mantle 




52 


V. Rayner 




58 


V. liickett 




285 


V. Tippett 52 


423, 


449, 459 


V. Y\'liitcomb 




86 


V. Wilson 177 


423, 


425, 449 


Harris's case 




227 


Harrisburg Bank v. Foster 


385 


Harrison v. Barnby 




61 


V. Barton 




282 a 


V. Blades 




147, 572 


V. Courtanld 




421 


V. Creswick 




528 


V. (lordon 




449 


V. Middleton 




437 


V. Moore . 




96 


V. I If) wan 


434, 


445, 447 


V. Vallance 




180, 190 


Harrison's case 




79 


Hart V. Deamer 




556 


V. Newman 




196, 209 


V. Williams 




116 


V. Yunt 




84 


Hart's case 




408 



Section 

Hartford Bank v. Hart 332 

Bridge Co. v. Granger 192 

V. Palmer 365 

Hartley v. Brooks 117 

V. ^lanson 668 a 

V. Wilkinson 283 

Haitness v. Thompson 197 a 

Hartwell v. Root 40, 80 

Harvey v. Alexander 26 

V. Broad 6 

V. Cotlln 392 

V. (iral)ham 302 

V. jNIitchell 560 

V. Richards 528 

V. Thomas 84 

V. Thoi'pe 86 

V. Towers 78 

Harvey's case 231 

Harwood v. Goodright 37 

V. Keys 180 

V. Mulry 118 

V. Sims 135, 138 

Hasbrouck v. Baker 96 a 

V. Yandervort 335 

Haskill V. The Commonwealth 79 

Hastings v. Blue Hill Turnpike 

Corporation 484 

Hatch V. Dennis 190 

V. Hatch 568 

Hatfield v. Jameson 5 

V. Thorp 841 

Hathaway v. Clark 20 

V. Haskell 176 

Hathorn v. King 440 

Hatton V. Robinson 238 

Hauberger r. Root 176 

Haughey v. Strickler 51 a 

Haven v. Brown 113, 437 

Havis V. Barkley 387 

Hawes v. Hatch 568 

V. Watson 207 

Hawk V. Freund 201 

Hawkesworth v. Showier 357, 407 

Hawkins v. Brown 322 

V. Finlayson 394 

V. Grimes 581 

V. Howard 246 

V. Lascomb 179 

V. "Ware 89 

Hawks V. Baker 371 

V. Kennebec 6 

Haworth v. Bostock 39 

Haworth's case 225 

Hayden v. Denslow 266 

V. Inhab.'ts of Madison 197 

Haydon's case 293 

Hayes v. Morse 122 

I'. Seaver 187 

Hayne v. Maltby 25 



INDEX TO CASES CITED. 



XXXIX 



HajTies V. Rowe 
V. Rutter 
V. Yoiinij 
Hays V. Ricliardsoii 
Ilayslc]) V. GyiiKT 
Havward r. IJatli 



Section 

108 
301 
422 
199 
498 
Rubber Co. v. Duncklee 189 
Hazard v. Loring 305 a 

V. N.Y. & Providence 

R.R. 4G2 

Hazeldine v. Grove 49 

Hazen v. Boston & Maine R.R. 80, 

285 

Head v. McDonald 539 

V. Shaver 172 

Heald v. Tiling 440 

Healey v. Thatcher 192 

Heane v. Rogers 204, 207 

Heard v. Wadham 303 

Hearn v. Toniliu "25 

Heath V. Hall 408 

Heaton v. Findlay 242 

Heckert v. Fegely 358 

V. Haiue 569 

Hedge v. Clapp 462 

Heely v. Barnes 421 

Heermance v. Venioy 398 

Helmsley v. Loader 196 

Hemenway v. Smith 239 a 

Hemmenway v. Towner 28 

Hemming v. English 429 

V. Parry 73 

Hempstead v. Reed 488, 489 

Henderson v. Anderson 385 

V. Henderson 546 

V. Kenner 532 

V. Wild 172, 174 

Hendrickson v. The People 225 

Henti-ey v. Brondey 560 

Henkin v. Gerss 253 

Henman v. Dickinson 342, 564 

V. Lester 96 a, 449 

Hennell v. Lyon 507, 512 

Henry v. Adey 514 

V. Bishoj) 569 

V. Brown 69 

V. Cleland 69 

V. Lee 484, 560 

V. Leigh 496, 560 

V. Risk 280 

Henshaw v. Davis 118 

Henthorne i\ Doe 21 

Hoplnirn v. Auld 46 

Herbert v. Ashburner 473 

V. Tuckall 116 

Hercules, The 495 

Herman v. Drink water 348 

Herrick v. INLxlin 564 

V. Noble 281 



Section 

Herring v. "Boston Iron Co, 288 

V. Clobery 240 

V. Levy 115, 117 

Herschfield v. Clarke 559 

Hervev o. Hervey 107 

Heward v. Shipley 384, 413 

Hewett c. Piggott 198 

Hewitt V. Prime 248 

Hewlett V. Cock 142, 144 

Heylings v. Hastings 112 
He V wood V. Reed 101, 190, 469 

Hibbert v. Knight 241 
Hibblewhite v. McMorine 568, 568 a 

Hibsham v. DuUeban 550 

Hicks V. Person 581 

Higdon V. Thomas 26 

Higgins V. Dellinger 197 a 

Higgs V. Dixon 569 
Higham v. Ridgway 116, 147, 149, 

150, 151 

Higlifield V. Peake 507, 516 

Highland Tump. Co. v. McKean 493 

Higlev V. Bidwell 145 

Hildreth v. Marlin 199 

Hill V. Barge 272 

V. Buckminster 304 

V. Crosby 17 

V. Great Western Railway 559 

V. Manchester & Salfoi'd 

Waterworks 26 

V. Packard 488, 508 

Hill's case 65 

Hilliard v. Jennings 392 

Hills V. Barnes 564 

V. London Gas Co. 288 b 

Hilt V. Campbell oS, 66 

Hilts V. Colvin 84, 375 

Hinde v. Vattier 21, 490 

Hinkle V. Wanzer 260 

Hinman v. Brees 521 

Hinman's case 227 

Hipes V. Cochran 6 a 

Hiscocks V. Hiscocks 289, 291 

Hitchcock V. Tyson 205 

Hix V. Whittemore 42 

Hizer v. State 6 

Hoare v. Croyton 150, 181 

V. Graham 281 

V. Silverlock 5 

Hobart v. Bartlett 422 

Hobbs V. Lowell 207 

V. Parker 528 

Hocking v. Cooke 5, 280 

Hockless V. MitcheU 427 

Hockley r. Lamb 405 

Hodempyl v. Vingerhoed 112 

Hodgdon v. Wight 38 

Hodge's case 34 

Hodges V. Holdeu 75, 76 



xl 



INDEX TO CASES CITED. 







Section 






Section 


IIo(l;;es V. Horsfall 




288 


Hopkins v. Mogquire 




577 


liudgkiiison v. FU'tdier 




185 


V. Neal 




347 


r. AVilUs 




512 


r. Sciiool District 




288 


Ilodj^snn V. ^Merest 




179 


Hordiman v. Herbert 




19 


llodnc'tt i\ Forinan 




572 


Home t'. Smith 




319 


Ilotlsdon i\ AV'ilkins 


395 


, 402 


Home Tooke's case 




108 


Hodyon v. Marshall 




39(i 


Horry District v. Hanion 




564 


V. Sharpe 




207 


Hoskins v. Miller 




519 


Iloe V. Mclthorpe 




518 


Hotchkiss V. Lyon 




LS7 


Hollhian r. Smith 




248 


Hcjtluim V. East India Co. 




304 


liofje c. Fislier 




440 


Houlditch 15. Doiiogal 




546 


lIofj<i:c'tt i\ Exley 




76 


Houliston V. Smyth 




102 


llolbrook V. Gay 




118 


Hovey v. The Mill-Dam 






V. Jackson 




93 


Foundry 




333 


V. IMcBride 




74 


Hovill V. Stephenson 167, 


386, 


418, 


V. i\Iix 




442 




435 


, 572 


V. Tin-ell 




26o 


How V. Hall 




89 


Ilolconib V. Cornish 




513 


Howard v. Braithwaite 




384 


i'. Holcomb 




366 


V. Cantield 




437 


Ilolcombe p. Hewson 




52 


V. Chadbourne 


392 


, 428 


Iloldi'u L\ llt-arn 




392 


V. City Fire Ins. Co. 




449 


Holding V. Elliott 


282 a 


V. JNIitchell 




531 


V. Pigott 




294 


V. Pccte 




64 


Holds worth v. Mayor of Dart- 




V. Smitli 


96 


, 203 


llKJUth 


444 


, 467 


V. Tucker • 




208 


Ilolladay v. Littlepage 


116, 120 


, 147 


Howe V. Howe 




388 


Holland v. Cruft 




52'J 


V. Peabody 




5(io 


V. Reves 




466 


V. Walker 




281 


HolLnvay v. Raikes 




147 


Howell V. Lock 




421 


Holicnljadc v. Fleming 


569, 569 a 


V. Richards 




69 


Hollenbeck v. Shutts 




281 


V. Thomas 




73 


Hollingham v. Head 




52 


Ilowland v. Conway 




462 


Holman v. Burrow 




6 


V. Lenox 




310 


V. Kimljall 




239 


V. Sheriff, &c. 


394 


437 


V. Ivjng 




486 


V. Willetts 


394 


437 


Holme V. Greene 




174 


Hoxie V. Wriglit 




549 


Holmes v. Anderson 




449 


Hoy V. Morris 


S 


39 a 


I'. l>addeley 


240, 240 a 


Iloyle V. Cornwallis 







V. JJoane 




303 


Hoyt V. Hanunekin ^ 




323 


V. Love 




78 


V. Wildlire 




389 


V. Pontin 




572 


Hubbard v. Hubbard 




77 


V. Remsen 




542 


V. Knous 




205 


Holsten v. Jumpson 




287 


V. Russell 




84 


Holt V. Miers 


529 


562 


Ilubbert V. Borden 




281 


V. Squire 


18G, 


194 


Hul)bly V. Brown 


391, 


399 


Homan v. Thompson 




75 


Hubly V. Vanliorne 




580 


Home V. Ld. Bentinck 


250, 


251 


Hudson V. Browne 




81 


v. ^Mackenzie 




436 


V. Guestier 




541 


Homer v. Brown 




530 


r. Harrison 




197 


V. Wallis 


568, 572, 


581 


V. Revett 


568 a 


Hone V. Mut. Safety Ins. 


Co. 


292 


Hudson Co. v. State 




20 


Honeywood v. Peacock 




572 


Hnet V. Lcmesurier 




493 


Hood V. Reeve 




182 


Hulf i\ Bennett 




i(;6 


Hook v. Freund 




201 


llugli's case 




82 


Hope V. Evans 




200 


Hughes V. Biddulph 


204: a 


V. Harman 


568 a 1 


V. Blake 




530 


Hopewell v. })n Pinna 




41 


V. Buckland 




49 


Hopkins v. Banks 




112 


V. Budd 




562 


V. He GrafTenreid 


575 


V. Cornelius 








INDEX TO CASES CITED. 



xU 





Section 






Section 


Hughes V. Hampton 




118 


Ireland 


V. Powell 


138 


V. Rogers 




580 




t'. StlU" 


463 


Hnidc'kopcr v. Cotton 




252 


Irvine i 


. Stone 


66 


Hull V. Blake 


529 


542 


Irving 1 


;, Irving 


675 


nmiible V. Hunter 




281 


Irwin V 


Reed 


163 


V. Mitchell 




267 


V 


. Shumaker 


356 


Hume V. Scott 




461 


Irwin's 


case 


227 


Huni])hrey v. Humphrey 




54 


Isack V 


Clarke 


144 


Humphreys v. Budd 




6 


Isham I 


. Gibbons 


614 a 


'V. (iuillow 




564 


Israel v 


. Benjamin 


205 


V. ]\mier 




402 


V 


. Clark 


210 


Hunt V.Adams 281, 


565, 


567 


Ivat V. 


Finch 


147, 189 


V. Brigham 




174 


Ives V. 


Niles 


118 


V. Hoit 




301 


Ivey v. 


Young 


73 


V. Livermore 




283 








V. Lyle 




505 








V. Massey 




121 




J. 




Hunter (The) 


3] 


, 37 








Hunter v. Caldwell 




49 


Jack V. 


Dougherty 


26 


V. King 




404 


Jackson v. Bailey 


164, 165 


V. Leashley 




416 




V. Bard 


109 


Huntington v. American Bank 


205 




V. Benson 


390 


V. Finch 




564 




V. Blanshan 


21, 144, 570 


Hurd V. Moring 




245 




V. Boneham 


484 


Hurst V. Beach 




296 




V. Brooks 


389, 578 


V. Jones 




104 




V. Browner 


103 


Hurst's case 


316 


318 




V. Burtis 


237, 241 


Hutcheon v. Mannington 




5 




V. Burton 


572 


Hutchins v. Adams 




61 




V. Chase 


265 


V. The State 




310 




V. Christman 


437, 570 


Hutchinson v. Bowker 49, 


277 


280 




V. Cooley 


104 


V. Sinclair 




26 




V. Davis 


21 


Hutton V. Warren 




294 




V. Dobbin 


207 


Hyckman i\ Shotbolt 




69 




V. Fairbank 


^ 112, 174 


Hyde v. Middlesex Co. 




109 




V. French 


239 


Hylton V. Brown 




559 




V. Frier 


349 






•v 


V. Galloway 


427 










V. Gould 


, 568 


I. 








V. Gridley 
V. Hesketh 


367, 369 
74, 75, 76 


laslgl V. Brown 


477 


559 




V. Hogarth 


389 


Icehour v. Martin 




319 




V. Jackson 


421 


Ide V. Stanton 




268 




V. Jones 


559 


Ilderton v. Atkinson 


391 


416 




V. King 


4S4 


Illinois Ins. Co. v. Marseilles 








V. Kingsley 


571 


Co. 




430 




V. Knilien 


156 


Imlay v. Rogers 




553 




V. Lamb 


144 


Imperial Gas Co. V. Clarke 




474 




V. Larroway 


142, 144, 570 


Imrie v. Castrique 




546 e 




V. Lawson 


164 


Ing V. Brown 




260 




V. Leek 


443 


Inge V. Murphy 


488 


489 




V. Le Grange 


575 


Ingraham v. Bockins 




117 




V. Luquere 


21, 142, 144 


V. Hutchinson 




17 




V. Malin 


566 


V. State 




6 




V. !Mann 


319 


Ingram v. Hada 




426 




V. Marsh 


301 


V. Lee 




89 




I'. Matsdorf 


24 


Innes v. Campbell 




41 




r. IMcCall 


45 


Innman v. Foster 




65 




d. INlcDonald v. 


McCall 145 


Inslee v. Prall 




118 




V. McVey 


241 



d* 



xlii 



INDEX TO CASES CITED. 



Section 

Jackson v. ^fevers 284 

V. Miller 498 

V. .Alills 24 

V. Murray 46 

V. Osborne 5G4 

V. Pesked " 19 

V. Phillips 581, 581 a 

V. Pixley 2()7 

V. Pratt 426 

V. Reynolds 207 

V. Kol)inson 519 

V. Kiimsev 167, 418 

V. KusseU 104 

V. Scissam 207 

V. Smith 207 

V. Spear 207 

V. Spragiie 301 

V. Thomason 462 

V. Vail 84, 575 

V. Vanderheyden 24 

V. Van Dusen 272 

V. Varick 447 

V. Waldron 84, 575 

V. Williamson 252 a- 

V. AVinchester 164 

V. Wood 539 

V. Wright 24 

Jackson's case 25'J 

Jacob V. Lindsay 90, 436, 439 

V. United States 83 

Jacobs V. Humphreys 180 

V. Lavbourn 421 

V. Whitcomb 102 

Jacobson t'. Fountain 331, 428 

Jacock V. Gilliam 474, 484 

James v. Biou 37, 196 

V. Brawn . 92 

V. Hackley 176 

V. Hat field 347 

V. Phelps 49 

V. Salter 74 

V. Spaulding 117 

V. Trollop 144 

V. Walrnth 69 

V. Whaiton 120 

Jameson v. Drinkald 440 

Jansen v. Ostrander 69 

J'Ansen v. Stuart 55 

Janvrin i\ Scammon 451 

Jarboe v. Kepler 462 

Jardine v. Sheridan 192, 239 

Jarrett w. Leonard 181 

Jasper v. Porter 6 

Jeacock f>. Faulkner 288 

Jeens v. Wheedon 227 

Jeflfers v. Kadcliire 650 

Jefferson Lis. Co. v. Cotheal 441 

Jeffreys v. ILarris 54 

V. Walton 304 



Jelf I'. Oriel 
Jenkins v. Davis 

V. Ehh-edge 
V. Phillips 
Jenks's case 



Section 

73 

133 

296 a 

73 

65 



Jenner v. Joliffe 86, 96 a, 203, 521 

Jenney v. Kochnan 207 

Jennings r. Whitakor 204 

Jermain v. Henuiston 190 

Jcvans i\ Harridge 349 

Jewell V. Jewell 103 

Jewett V. Adams 394, 420 

V. Torry 207 

Joannes v. Bennett 558 

John V. Curry 73 

Johnson v. Beardslee 174 

V. Blackman 190, 353 

V. Brailsford 273 

V. Brccdlove 118 

V. Browning 352 

V. Cunningham 409 

V. Dalton 281 

V. Daverne 255, 577 

r. D. of Marlborough 564 

V. Durant 249 

V. Hacker 498 

V. Johnson 248, 272, 305 

V. Knight 167 

V. Lawson 103 

V. McGruder 260 

V. Runnels 505 

V. Sherwiu 110 

V. State 158 

V. Thoroughgood 58 

V. AVard 114, 484 

Johnston v. Caulkins 54 

v. Cottingham 27, 532 

r. Todd 103, 462 

Johnstone's case 65 

JoUey V. Taylor 82, 89 

V. Young 49 

Jones I'. Barclay 304 

11. Brinkley 572 

V. Brooke 391, 401 

V. Carrington 189 

V. Church 190 

V. l)c Kav 118 

V. Edwards 562 

V. Flint 179, 271 

V. Foxall 192 

V. (lale 6 

V. Georgia 379 

V. Herbert 174 

V. Hoar 205 

V. Jones 168 

V. Kennedy 74 

V. Lake 272 

V. Lanier 452 

V. Long 117 



INDEX TO CASES CITED. 



xliii 



Jones V. ^lason 

V. MeNiel 

V. Moore 

V. iMorrell 

V. Newman 

V. Overstrcet 

V. Pony 

V. IMii'lps 

V. I'iteher 

V. Piigh 

V. Randall 482, 

V. Sasser 

V. Stevens 

V. Stroud 

V. Tarlton 

V. The State 

V. Tuberville 

V. Tucker 

V. Vanzant 

V. Wartl 

V. White 

V. Whitticr 

V. "Williams 

V. Wood 
Jones's case 
Jorau V. Ferrand 
Jordaine v. Lashbroke 
Jordan v. Fenno 

V. Hubbard 
V. Lewis 
V. Stewart 
r. AVilkins 
Jory l\ Orchard 
Joslyn V. Smith 
Joyce V. Maine Ins. Co. 
Judd V. Gibbs 
Judge, &c. r. Briggs 
Judice V. Chretien 
Judson V. Blauchard 
Jumpertz v. People 



K. 



Section 

37-4, 572 

533 

112 

197, 215 

291 

5 

101 

569 

494 

240 

491, 508, 511 

26 

6o 
438 

94 

363 

178 

440 

61a 

26 
537 
190 
53 a 
165 
225 
448 
385 
260 
185 
254 a, 471 
564 
563 
561 

112 

441 

171, 195 

503, 513, 518 

485 

349 

576 



Section 
■JHH 

185, 341 
573 



Kaines v. Knightley 


281 


Kay I'. Brookuian 


575 


Kaye v. Waghorne 


301 


Kaywood v. Barnett 


103 


Kean v. Price 


489, 505 


Keane v. Smallbone 


568 a 


Keating v. Rice 


304 


Keeling r. Ball 


84, 572 


Keene v. Deardon 


46 


Keiglitly V. Birch 


394 


Keith V. Kil)l)e 


118 


V. Lathrup 


576, 577 


V. AVilson 


432 


Kell V. Nainliy 


207 


Kellenberger v. Sturtevant 


527 a 



558, 571, 



Kelley v. Powlct 

V. Small 
Kello V. Maget 
Kellogg ;'. Sniith 
Kelly V. Mc(niire 
Kelsey v. l>ush 

V. Hanmer 
Kelway v. Kclway 
Kemble v. Lull 
Kemmerer v. Edehnan 
Kemp V. King 
Kempland v. Macaulay 
Kemlall v. PoAvers 
Kendrick v. State 
Kennedy v. Erie, &c. Plank 
Road Co. 

V. Xiles 
Kennet v. Greenwollers 
Kenney v. Jones 
Kensington v. Liglis 
Kent v. Garvin 
V. Lincoln 
Kerr v. Love 
Kerr's case 

Kerrison v. Coatsworth 
Kerwin, Ex parie 
Ketchingham v. State 
Key V. Dent 
V. Shaw 
Kidder v. Blaisdell 
Kidney i". Coekburn 
Kieran v. Sanders 
Kilburn v. Bennett 
Kiliiell'er v. Herr 
I'umball V. Huntington 
V. MorrcU 
V. Thompson 
Kimmel v. Kiunnel 
Kincaid i\ Howe 

i'. Purcell. 
King V. Badeley 
V. Chase 
V. iloare 
V. Little 
V. Paddock 
V. Robinson 
V. Waring 
King (The) c. Mashiter 
Kingham v. Robins 
Kingston v. Lesley 

(Mayor of) v. Horner 20, 45 

Kingston's (Duchess of) case 19, 

248, 523, 531, 541 



301 
103 
201 
574 
237 
2;i4 
434 a 
560 
isi 
513 
164, 165 

281 

356 

392 

46 

436, 437 

117 

102 

118 

229 

396 

568 a 

462 

523, 527 

101, 197 

6 

105 

207 

108 

531 

173 

558 

360 

461 

37 

356 

288 

527, 528, 532 

533 

20, 21 

41 

66 

bb 

280 

205 

493 



Kinleside r. Harrison 
Kinnersley r. Wni. Orpe 

Kinney r. Berran 

r. Farnsworth 
V. Flynn 



440 

484, 523, 

535 

322, 323 

145. 207 

282, 577, 581 



xliv 



INDEX TO CASES CITED. 



Section 

Kinsley v. Robinson 385 

Kip v/Bri^haiu 180, 539 

Kirby v. Sisson 558 

Kirk V. Eddowes 296 

Kirkland v. Smith 5()G 

Kirkputrick v. Stingley 539 a 

Kirwan v. Cockburn 479 

Kissam v. Forrest 445 

Kitchen v. Campbell 531, 533 

V. Tyson ,118 

Knapp V. Maltby 5G7, 5G8 a 

Knapp's ease 219, 222, 231 

Knight V. Clements 564 

V. Dauler 

V. Marquis of Watei-ford 



V. Martin 
V. Packard 
Knott V. Smith 
Knox V. Jenks 

V. Silloway 

V. Waldoborough 
Koch V. Howell 
Kohn V. Marsh 
Kraft I'. Wickey 
Krider v. Lafferty 
Kuhtman v. Brown 



La Caygas v. Larionda 
Lacon v. Iliggins 
Lacy V. McXeal 
Ladd V. Blunt 
Lade v. Holford 
Lady Lawley's case 
Laing V. Barclay 
Lainson v. Tremere 
Lake v. Auburn 

V. King 

V. Mumford 
Lamb V. Hart 

V. Lamb 
Lamb's case 
Lambert v. Hale 
Lambeth v. Vawtcr 
Lamey v. Bishop 
Lampon v. Corke 
Lamprey v. Nudd 
Lamptou V. Haggard 
Lanauze v. Palmer 
Lancaster v. Lane 

V. Whitehill 
Lancum v. Lovell 
Lander v. Seaver 
Landsljerger v. Gorham 
Lane v. Chandler 

V. Cole 



5U9 
150, 
561 
571 
385 
319 
46 
571 
529 
117 
27, 206 
544 
279 
323 



479 

75, 76 

112 

501 

46 

343 

246 

22 

420 

6 

51 a 

118 

289 

90, 215, 228 

81 

112 

73 

26, 212 

632 

5 

87 

513 

681 

139 

54 

239 

172 

319 



Lane v. Crombie 
V. Han-ison 
Lane's case 
Lang V. Gale 
V. Raine 
Langdon v. Goddard 
V. Langdon 
V. Young 
Langhorn v. AUnutt 
Langley v. Fisher 

V. Ld. Oxford 
Lansdowne v. Lansdowne 
Lansing v. McKillip 
Lansingljurg (Bank) v. Crary 
Lapliam v. Wiiipi)le 
Larbalestier v. Clark 
Larned v. Bullington 
Larry v. Sherburne 
Latham v. Kenniston 
Lathrop v. Blake 
V. INIuzzy 
V. Stuart 
Latkow V. Eamer 
Lattimore v. Harsen 
Laughlin v. The State 
Law V. Law 

V. IVIerrills 
V. Scott 
Lawes v. Reed 
Lawless v. Queale 
Lawrence v. Barker 



Section 

78 

530 

6 

49 

572 

550 

279, 305 

488 a 

113 



391, 



V. Dole 

V. Houghton 

V. Hunt 

V. Ins. Co. 

V. Minturn 

V. Thatcher 
Lawton v. Kittredge 
Laxton v. Reynolds 
Layer's ease 

Lea V. Polk County Copper Co 
Leach V. Armitage 



341 
186 

288 

68 

271 

284 

398 

55 

199 

177, 395 

297 

397 

6, 19 

556 

303 

102 

,322 

200 

251 

436 

96 a 

443, 449 

302 

371 

531 

559 

88 

113 

260 

559 

90, 228, 461 

40 

75 



V. Simpson 161, 227 

V. Thomas 3!)0 

Leader v. Barry 107 

Leake v. jNIaripiis of Westmcath 511 

Learned r. 15rvant 207 

Leathe v. Bulfard 302 

Leathes v. Newith 138 

LeBaron ik Ci'ombie 163 

Lechmere v. Fletcher 539 a 

Ledford v. Vandyke 565 

Ledgard v. Thompson 669 a 

Lee V. Alexander 566 

V. Birrell 248 

V. Dick 281 

V. Gansell 372, 375 

V. Howard, &c. Co. 281 

V. Kilburn 101 



INDEX TO CASES CITED. 



xlv 



Lee V. Meecock 

V. Pain 
Lee's case 
Leeds v. Cook 

V. Lancashire 



Section 

6U8 

261 

449, 401 

37 

283 



V. Marine Insurance Co. 

oi' Alexandria 178 

Lees V. IIolFstadt 81 

V. Smith 430 

Lefavor «. Yandes 112 

Lefebure v. Worden 117 



Le Fevre v. Le Fevre 
LelFcrs v. De Mott 
Leggatt V. Cooper 

V. Tollervey 
Legge V. Boyd 

V. Edwards 
Leggett V. Boyd 
Legh V. Lcgh 
Lehan v. Good 



302 
395 
205 
254 a, 471 
73 
17'J 
430 
173 
532 



Leicester (E. of) v. Walter 53 

Leldemau v. Schultz 280 

Leigh V. Leigh 288 

Leighton v. Terkins 428 

Leke's case 51, 56, 60 

Lemiine v. Stanley 272 

Lench v. Lench 214 

Leonard v. Allen 55 

V. Leonard 550 

V. Morrill 301 

V. Vredenburg 268 

Lesher v. Levan 572 

Lester v. Jenkins 521 

Lethulier's case _ 292 

Levers v. Van Buskirk 244 

Levi V. Milne 49 

Levy V. Cadet 112 

V. Essex 400 

V. Merrill 265 

V. Pope 245 

V. State 481 

Lewis V. Clerges 164 

V. Gray 284 a 

V. Ilogdon 420 

V. Kramer 116 

■ V. Marshall 484 

V. Payn 566, 568 

V. Peake 397 

V. Sapio 577 

Ley V. Ballard 572 

LeytieUVs (Dr.) case 568 

Lichtenhein v. Boston & P. R.R 

Co. 292 

Lightfoot V. Cameron 316 
Lightnor t'. AVike 163, 437 
Like V. Howe 196, 204, 207 

Lilly V. Kitzmiller 429 

Lincoln v. Battflle 488 

Liudeuberger v. Beal 40 



Section 

Lindsay v. Williams 6 

Lindscv 11. AUorncv-Gcneral 6 

Linlichl V. Old CcjI". U.Pt. Corp. 323 

Lingan v. Henderson 26 

Linn v. Buckingham 569 

Linscott V. Trask 34 

Linslcy v. Lovely 305 a, 445 

Lipscombe v. Holmes 195, 205 

Lister V. Priestley 195 

Little V. Keon 386 

V. Larrabee 252 a 

V. Libl)y 109 

V. Thompson 78 

Littlefield v. Portland 398 

V. Bice 333 

V. Story 173 

Littlehale v. Dix 323 

Littler V. Holland 302 

Livermore v. Aldrich 26, 296 

V. Herschell 532 

Livett V. Wilson 46 

Livingston v. Bishop 533 

V. Cox 166 

V. Kingstead 365 

V. Livingston 46 

V. Tenbroeck 293 

Lloyd V. Lynch 212 

V. Passingham 460 

V. Sandiland 38 

V. Spillett 266 

V. Willan 27, 18i 

V. Williams 358 

Lobb V. Stanley 285 

Lochlibo (The) 443, 444 

Lock V. Winston 527 

Locke V. Norborne 536 

Lockhart's case 231 

Lockwood V. Lockwood 440 a 

V. Smith 176 

r. Sturdevant 24 

Lodge V. Phipher 580 

Logan V. The State 158 

Lohman v. The People 455 

Lombardo v. Ferguson 561 

Loiulon V. Lynn 493 

Lonergan v. The Royal Ex. Ass. 310 

V. AVhitehead 118 

Long V. Baillie 167 

V. Barrett 53 

V. Davis 163 

V. Hitchcock 463 

V. Lamkin 450 

Long's case 217, 2;>0 

Longcnecker r. Hvde 116, 120, 187 

Look i\ BnulKy " 331, 405 

Loomis V. BcdcU 571 

V. Green 5o2 

V. Jackson 301 

V. Loomis 112 



xlvi 



INDEX TO CASES CITED. 



Section 

Loomis V. AVadharas 96 a, 171 
Lopes V. l)e Tastut 58, 64 
Lord (iosford l\ llobb 96 a 
Lord ]\Iilton v. Edgcwortli 302 
Lord v. Moure 323 
Loring et al. v. Brackett 174 
V. Norton 301 
V. Stciueinan 41 
Lorton, Viscount, v. E. of Kings- 
ton 551 
Lolhrop V. Blake 489 
Loud i\ Merrill 40 
Louisiana State Bank v. Martin 41() 
State of, ex rel. Hatch 
V. City Bank of N. 
(Orleans 474 
Loveridge v. Botliam 212 
Low V. C. & P. R.R. 440 a 
V. Mitchell 54, 451 
V. Perkins 175 
Low's case 252 
Lowber v. Shaw 399, 416 
Lowe V. Boteler 174 
V. JolifFe 384, 443 
V. Lord Huntingtower 301 
V. Peers 19 
Lowell V. Daniels 24 
Lower.!). Winters 68 
Lov/i-y V. Cady 84 
Loyd V. Freshfield 248 
V. Stretton 392 
Lubbock V. Tribe , 558 
Lucas V. Bristow 282 a 
V. De La Cour 177, 281 
V. Groning 280 
V. Kockels 59 
Ludlani ex d. Hunt 84 
Lufkiu V. HaskeU 331, 405 
Lumley v. Gye 320 
Lund V. Tyngsboroiigh 108, 123 
Luiiiss V. Kowe 422 
Lu^li V. Druse 301 
Luttrell V. Pieynell 168, 533 
Lygon V. Stutt 142 
Lyman v. Lyman 207, 521 
Lynch v. Benton 306 
V. Gierke 484 
V. McIIugo 118 
Lynde v. Judd 508 
Lyon V. Ely 323 
V. Lvman 580, 581 
V. Miller 281 
Lyons v. Gregory 84 

M. 



Maberley v. Robins 
Maby v. Shepherd 



Macbride v. ^Macbride 451, 
Macdonald v. Longbottom 
Machel v. Winter 
Mackenzie v. Yeo 
Maddison v. Nutall 
Maddox v. Sullivan 
Magee v. Scott 
Magennis v. MacCullogh 
Magill V. Kaulliiian 
Magoun v. iS.E. Ins. Co. 
Mahan v. McGrady 
IMahurin v. Bicklbrd 
Alain v. Newson 

Jn re 
Maine v. Harper 

Stage Co. V. Longley 
Mainwaring v. Mytton 
Major V. State 
Makepeace v. Bancroft 
Malaun v. Annnon 
Malcom v. Scott 
Malcomson v. Clayton 
Malin v. Malin 
Malone v. Bartley 
jNIalony's case 
Maltby v. Christie 
Malton V. Nesbitt 
Manby v. Curtis 
Manchester Bank v. Moore 
L'on Manuf. Co. 

V. Sweeting 
Mills (The case o 
Manchester (.The) 
Mandeville v. Welch 
V. Wilson 
Mann v. Locke 

V. Mann 

V. Pearson 
iManners v. Postan 
Mannifold v. Pennington 
Manning v. Lechmere 
Mant V. Mainwaring 
Many v. J agger 
Marbury v. JNladison 
JNIarch v. Connnonwealth 
Marcy v. Stone 
JMarianski i\ Cairns 
Maria Das Dorias 
Marine Ins. Co. v. Hodgson 
Mariner v. Dyer 

V. Saunders 
Markham v. (Jonaston 
Marks v. Lahee 115, 116, 

Marland v. Jelferson 
Marquaud v. Webb 
Marriage v. Lawrence 
Marsdcn c. Stanfield 
Marsh v. CoUnet 
V. Davis 



Section 

456, 458 

288 a 

288 

244, 341 

189 

260, 381 

34, 513 

265 

163, 332 

541 

569 

505 

409, 423 

41 

117 

430 

401 

6 

301 

15G 

171 

51 

200 

501 

227 

« 194 

440 

142, 155 

346 







418 
139 
113 

172, 173 
73 
112 
296 
301 
569 
72 
147 

353, 356 

190 

251 

6 

109 

197 a 

498 

73 

349 

558 

568 

150, 152 

392, 402 
395 

484, 493 
331 

484, 570 
110 



INDEX TO CASES CITED. 



xlvii 





Section 


Marsh v. Gold 


l'J2 


V. Howe 


239 a 


V. Jones 


165 


V. Keith 


246 


r. Pier 


531 


Marshall v. Baker 


303, 304 


V. Clili" 


186, 194 


V. Gougler 


560, o68 


i\ Lynn 


302, 304 


V. Tln-aikill 


395 


Marshall's appe'al 


287 


Marston r. Downs 


241 


V. Holjbs 


24 


Martin v. Farnham 


450 


V. Good 


437 


V. (innby 


484 


V. Ilorrell 


416 


V. Kolley 


397 


V. Maguire 


581 


V. Xicolls 


646 


V. Payne 


489 


V. Root 


112, 174 


V. Travellers Ins. 


Co. 435 


Martin's i-ase 


65 


Martindak' r. Follett 


568 



Martineau v. Woodland 416, 420 

Martinstein v. His Creditors 118 

Marvin v. Richmond 192 

Mary Grigg's case 345 

Mary Stewart (The) 40 

Mary (The) 18 

Mash V. Densham 73 

V. Smith 260, 359 

Mason v. Mason 30 

Masterman i\ Jiidson 73 

Masters v. Abraham 114 

V. Drayton 392 

V. Miller 565, 566, 568 a 

Mather v. Clark 349 

V. Goddard 87 

V. Trinity Church 45 

Mathes v. Robinson 118 

Mathews v. Coalter 564 

V. Ilaydon 416 

V. Hougliton 513 

V. Marchant 429 

V. Smith 392 

Matthews v. Colburn 164 

Mattlu'ws' estate 239 

Mattocks V. Lyman 197 a, 201 

V. Whcaton 310 

Maugham v. Hul)bard 90, 436, 437 

Mauran i\ Lamb 330, 353, 452 

Mawson v. Ilartsink " 461 

May V. Babcock 305 

V. Brown 63 

V. Taylor 180 

Mayer v. Scfton 93 

Mayfield i\ Wadley 271 



Sectioa 

Mayhew v. Thayer • 441) 

Mayley v. Siiattuck 543 

Mayor v. J(jhnson 55H 

Mayor of Carmathen v. Lewis 73 
Colcliester v. Lewis/ 333 

Doncaster v. Day 163 
Soutlianipton v. Graves 474 

McAdams v. Stilwell 164 

McArthur u. lliirll)urt 443 

McBraine v. Fortune 417 

McBride c. Watts 197 

McCann v. The State 215 

McClane v. AVhite 290 a 

McCleidvan v. McMillan 199, 201 

McCorklc V. Binns 581 

McCormick v. Garnett 486 

McCraw c. Gentry 572 

McCrca v. Punnort 26 

McCullock r. Tvson 392 

McCuUy V. .Malcolm 352 

McCully's case 65 

McDaniel f. Hughes 542 

McDonald v. Christie 440 a 

V. Evans 463 

V. Rainor 530 

V. Rooke 49 

McDonnell v. State 49 

McDowell V. Langdon 532 

V. Stimpson 517 

McElmoyle v. Cohen 548 

McFadden v. Kingsbury 89 
McGahey v. Allston " 82, 92, 187 

McGee V. Proutv 281 

McGill r. Rowand 348 

McGrath v. Seagrave 513 

McGuire v. Maloncy 338 

V. Sapvard 507 

McGuire's case 8z 

McGunagle v. Thornton 41G 

McUroy\'. Mcllroy 430 

McLitire v. Oliver 112, 174 

Mclntyre v. Mancius 451 

v. People 363 

Mclver V. Humble 356, 494 

V. Walker 301 

]McKeevlin r. Bresslin 474 

McKee c. Hicks 568 a 

V. Nelson 440 

McKclvv i\ De Wolfe 323 
McKeiiire v. Frascr 21, 144, 570 

McKcnney v. Dingley 53 

McKinne}- v. Neil 462 

McKinnon v. Bliss 5 

!McKnight i\ Lewis 352 

jNIcKonkey v. Gaylord 577 

McLanatlian v. Patten 190 

McLean v. Hertzog 89 

V. State 159, 432 

McLcllan v. Crofton 118 



xlviii 



INDEX TO CASES CITED. 



Section 

McLellan v. Cumberland Bank -Jl.') 

V. Longfellow 23y 

V. Richardson 252 

McMahon v. Burt-hell 171 

McMicken v. Beauchamp 564 

McXaughton's case 440 

McNeil V. Philip 207 

Ex pavtt 316 

McRae v. Lilly 54 

Mc'iVer c. Steele 305 

McWilliams v. Nisby 24 

]Mead i'. Boston 537 

V. Robinson 413 

Meade v. ]\lcDowell 187 

V. Smith 252 a 

Meadows v. Meadows 268 

Meagoe v. Siaunons 430, 449 

Meath (Bp. of) v. Ld. Belfield 137, 

138 
V. Marquis of 

Winchester 142, 154, 240 
Mechanics' Bank of Alexandria 

V. Bank of Columbia 112 

Medomak Bank v. Curtis 303 

Meeker v. Jackson 349 

Meekins v. Smith 316 

Melcher v. Flanders 569 

Melen v. Andrews 197, 199, 233 

Melhinch v. Collier 51 a, 444 

Mellish V. Rawdon 49 

V. Richardson 73 

Mellville's (Ld.) case 6, 65, 234, 482 

Melvin v. "^Vliiting 17, 164, 310 

Mercer v. Sparks 34 

V. AVhall 76 

V. Wise 207 

Merchants' Bank v. Cooke 332 

V. Spicer 430 

Meredith v. Footner 185 

j\Ieriam v. Harsen 293 ' 

Merle v. More 243 

Merriam v. Hartford & N.H. 

R.R. Co. 329 
V. Ithaca and Oswego 

Railroad Co. 437 

V. Langdon 73 

Merrifield v. Robbins 489 

Merritt v. Thompson 41 

Mersey & Elwell Nav. Co. v. 

Douglas 62 

Mertens v. Nottebohms 352 

Meserve v. Hicks 501 

Mestayer v. Biggs 284 

]Metfalf V. Van Bcnthuysen 558 

Metropolis (Bank of the) v. Jones 385 

!Metzger's case 552 

Metzner v. Bolton 66 

Mevey v. Matthews 356 

Mexico & S. A. Co. in re 451 a 



Section 

Meynell's case 221 

Michaels v. Shaw 521 

V. Williams 49 

Middlesex's (Sherilf of) case 6 

Middleton v. Brewer 205 

V. Mass 142, 144 

V. Melton 116, 120, 147, 

150, 153, 187 

Middletown Savings Bank 

1'. Bates 333 

Mifliin v. Bingham 118 

IMilbourn v. Ewart 286 

Miles V. Dennis 179 

V. McCullough 316 

V. O'lLira 165, 166 

V. Sheward 51 

Milford V. Worcester 484 

Millay v. Butts 34 

Miller V. Baker 271 

V. Bingham 190 

V. Covert 532 

V. Falconer 396, 417 

V. Gilleland 568, 568 a 

V. Hale 513 

V. Irvine 268 

V. Mariners' Ch. 95, 333, 422 

V. ]\IcQuerry 6 

V. Russell 163 

V. Travers 288, 289, 290, 291, 

297, 301 

V. Williams 205 

Miller s case 440 

JMilliken V. Coombs 269 

Millman v. Tucker 457 

Mills V. Duryee 504 

V. Gore 361 

V. Oddy 75, 237, 241 

V. Twist 572 

V. Wyman 304 

Milne v. Leisler 108 a 

IMUward v. Forbes 193 

V. Hallett 416 

]\Iilword V. Ingram 302 

]\lima Queen v. Hepburn 124 

Minet v. Gibson 53 

Minns V. Smith 463 

Minor v. Mechanics' Bank of 

Alexandria 356 

V. Tillotson 82, 83 

Mints i\ Bcthil 93 

Minturn's case 65 

Mish V. Wooil 440 

Mishler v. Baumgardner 386 

Mitchell I'. Belknap 119 

V. Clark 118 

V. Kingman 284 

V. Mitchell 421 

V. Scllman 469 

Mitchum v. State 108 



INDEX TO CASES CITED. 



xlix 







Section 




Section 


Mockbee v. Gardiner 




398 


Morrison v. Kelley 


471 


]\Ioflitt V. The State 




363 


V. Lennard 


366 


IVfohawk Bank i\ Atwater 




421 


V. Tumour 


272 


Moillett V. Powell 




73 


V. Woolson 


10 


]Moises V. Tliornton 


58 


, 195 


Morae V. Conn. R. R. Co. 


114 a 


MoUett V. Wackerbarth 




568 


V. Potter 


118 


Molton i\ Harris 




87 


V. Royall 


174 


Molyneaux v. Collier 




192 


V. Shattuck 


26 


Monkton v. Attor.-Gen. 


103, 


104, 


V. Weymouth 288 6, 298 a 


105, 131 


, 134 


, 135 


Morss V. Morss 


364 


Monroe (Bank of) v. Culver 




115 


Mortimer v. McCallan 


113, 474 


V. Field 




113 


V. Mortimer 


215 


V. Twistleton 


254 


,337 


Morton v. Chandler 


284, 474 


Montee v. The Commonwealth 


49 


V. Penny 


66 


Montgomery v. Ohio 




165 


V. Webster 


485 


V. Richardson 




205 


Moscati V. Lawson 


409 


V. The State 


158, 


161 a 


Mosely v. Davis 130, 


135, 138 


Moody V. King 




356 


V. Ilanfbrd 


281 


V. Rowell 445, 447, 


448, 


577, 


Mosey's case 


231 




580 


, 581 


Mosler's case 


222 


Mooers v. Bunker 




103 


Mosley v. Massey 


301 


Moons V. De Bernales 




550 


Mostyn v. Fabrigas 


320, 488 


Moore v. Griffin 




405 


Mott'iJ. Doughty 


572, 575 


V. Hitchcock 




96 


V. Hicks 


423 


V. King 




272 


Mount V. Bogert 


192 


V. Moore 




266 


V. Larkins 


49 


V. Pearson 




163 


Mountstephen v. Brooke 


191 


V. Terrell 




240 


Muller V. Moi-ris 


489 


Moore's case 


227 


484 


jNIunderson v. Reeve 


174 


Moorehouse v. Newton 




118 


Munro v. De Chemant 


27, 207 


Moorhouse v. De Passou 




421 


jNlunroe v. Cooper 


81 a 


Moorish v. Foote 


394 


396 


V. Perkins 


303 


More V. Salter 




568 


Murdock v. Union Bank 


S8 


V. Smith 




199 


Murray v. Buchanan 


558 


V. Watts 




533 


V. Carrett 


558 


Moreton's case 




533 


V. Coster 


192 


Morewood v. Wood 58, 


128, 


130, 


In re 


30 


136, 137, 


145 


578 


V. Judah 


430 


Morgan v. Baker 




532 


V. Marsh 


430 


V. Brvdges 


445 


447 


V. Shadwell 


361 


V. Frees 




449 


V. Toland 


197 


V. Morgan 




101 


Mussey v. Beeeher 


114 


V. Thorne 




523 


Musson V. Fales 


379 


Morrell v. Dickey 




544 


Myers v. Baker 


200 


Morrill V. Foster 




104 


V. Toscan 


581 


Morris v. Briggs 




117 


Myrick v. Dane 


281 


V. Burdett 




197 






V. Daubigny 




409 






V. Davis 




28 


N. 




V. liarmer 




497 






V. Hauser 




562 


Nash V. Gilkieson 


54, 55 


V. Kcyes 




532 


V. Van Swearingen 


452 


i'. Lotan 




76 


Nason v. Thatcher 


333 


V. Miller 




209 


Natchboh, v. Porter 


265 


V. Nixon 




178 


National Bank of St. Charles 




V. Pugh 




521 


V. De Bernales 


203 


V. Thornton 




426 


Navlor v. Semmes 


452 


V. Vanderen 




564 


Neal V. Wilding 


104 


V. Wads worth 




573 


Neale v. Fry 


497 


VOL. I. 




e 







INDEX TO CASES CITED. 



Section 

Neale v. Parkin I'JT 

Nealley v. Greenough 5G1 

Needham v. Law 33;] 

V. Smith 421 

Keelson v. Sanborn 2G8 

Neil V. Cheves 3U4 

V. Neil 272 

Neile v. Jakle 197 

Neilson v. McDonald 361 

Nelius V. Brickell 572 

Nellis V. McCarn 440 a 

Nelson v. EweU 319 

V. Hall 301 

V. Patrick 49 

». State 432, 462 

V. The United States 323 

V. Whittall 57o 

New Eng. Bank v. Lewis 530 

Glass Co. V. Lovell 440 a 

New Hampshire, &c.. Lis. Co. 

V. Hunt 68 
New Haven Co. Bk. v. Mitchell 115, 

116, 572 

New MiLford v. Sherman • 110 

Newbolt V. Pryce 291 

Newburgh v. Newburgh 301 

Newcastle (Dk. of) v. Kinderley 37 

Newcomb v. Drummond 509 

V. Griswold 457, 465 

V. Presbrey 564 

Newell V. Mayberry 565, 568 

V. Newton 6 

V. Simkin 473 

Newhall v. Holt 203 

V. L-eson 301 

V. Jenkins 193 

Newham v. Raithby 493 

Newman v. Atlas Lis. Co. 310 

V. Doe 498 

V. Jenkins 41, 550 

V. Stretch 97, 108 

Newsam v. Carr 55 

Newton v. Belcher 37, 206, 207 

V. Beresford 240 

V. Harlaud 310 

V. Hai-ris 450 

V. Higgins 118 

V. Liddiard 206, 207 

Nias V. N. & E. Railway Co. 240 

Nichols V. Dowding 111, 112, 177 

V. Downs 196, 219 

V. Goldsmith 106 

V. Holgate 385 

V. Johnson 268, 566 

V. Parker 135, 145 

V. Webb 115, 116, 121, 147 

Nickle «;. Bahlwin 119 

Nieman v. W.ard 145 

Niles V. Brackett 421 



Niles V. Culver 
Nix V. Cutting 
Noble V. Kennoway 
V. Martin 
V. JMcClintock 
Noke V. Ingham 
Norcott V. Orcott 
Norcutt V. Mottram 
Norden v. Williamson 
Norfolk V. Gay lord 
Norris, In re 

V. Beach 



Section 
305 
398 
292 
163 
163 
356 
409 

73 

172 

451, 451 a 

41 
316 



V. N. Am. Lis. Co. 76 

North V. Miles 180 

North Lib. (Bk. of),«. Davis 435, 444 
North River Meadow Co. 

V. Shrewsbury Church 564 

Northampton Bank v. "WTiiting 266 

Northrop v. Wright 21 

Northrup v. Jackson 87 

Norton v. Coons 281 

V. Doherty 532 

V. Pettiboue 109, 189 

V. Kearney 189 

Norwood V. Morrow 409 

Nourse ii. McCay 116 

Novelli V. Rossi 547 

Nowell V. Davies 389, 408 

Noyes v. Canfield 280 

V. Ward 108, 128, 139 

Nute V. Bryant 420 

V. Niite . 40, 49 

Nuttinff V. Page 108 



0. 

Oakapple v. Copons 
Oakes v. Hill 
O'Brien v. Davis 

V. Gilchrist 
O'Callaglian v. Murphy 
Odell V. Culbert 
Odiorne v. Bacon 

V. Wade 



197 

485, 498 

385 

305 

554 

118 

513 

331, 405 

52, 421, 423, 

449 

292 

117 

207 

421 

261 

110 

21 

(^Idtown (Bank of) v. Houlton 332 
Oliphant v. Taggart 575 

Olive V. Guin 603 

Oliver v. Bartlctt 101 

V. State 156, 158, 159 



V. Winkley 

Oelricks v. Ford 
Ogdcn i\ Miller 
Ogle V. Atkinson 

V. Pelaski 
Ohl V. Eagle Lis. Co. 
O'Kclly V. O'Kclly 
Ohliuill V. Deakin 



INDEX TO CASES CITED. 



Oliver v. Watkmg 
O.ulchuml V. Barkc^^ 
OnenUeiuir.LeoAVolf 
Oi-aii-e V. SpnnoiicW 
Orcutt V. Kanney 
Ord ». McKce 
Orne t>. Townsend 
Oil- f. Morris 

Osborn V. Tliompson 
V. U.S. Bank 

Osborne «. London Dock Co 

Osoood V. Manhattan to. 

Osrerhout v. Roberts 

Oswald V. Leigh 

Outram u. Morewood 

Ovenston v. Wilson 
Over y. Blackstonc 
Owen V. Bartholomew 

p. Boyle 

V. Flaek 

r. Warburton 
Owens V. ColUnson 
Owings 17. Beall 

V. Henderson 

V. Hull 
V. Low 

V. Speed 
tj. Wyant 

P. 

Packard r. Hill 

u. Richardson 

Packer v. Gonsalus 
Paddock v. Salisbury 
Page V. Faucett 
V. Homans 
V. Osgood 
V. Page 
V. Parker 
V. Shellield 
Paget V. Paget 
Paige V. Cagwm 
V. Hazard 
Pain V. Beeston 
Paine v. Edsell 
V. Hussey 
V. jNlclutier 
V. Tilden 
i\ Tucker 
Palethorp v. Furnish 
Palmer v. Fogg 
V. Haight 
V. Ld. Aylesbury 
V. Stephens 
V. Stevens 
V. Trower 



Section 

328, 3G9, 371 
6 a 



Panton v. Holland 
t'. Williums 
Papendick v. Bri.lgewater 
Paris V. Hughes 
Park V. iSleais 
Parke c. Bird 

V. Smith 
Parker v. Carter 
V. Green 
V. Gi'out 
V. Hardy 
V. Haskins 
V. Hill 

V. INIcWilliam 
V. ;M err ill 
V. INlitchell 
V. jMorrell 
V. Palmer 
V. Staniland 
V. Vincent 
V. Yates 
Parkhurst v. Lowton 



V. Van Cortland 
Parkin v. Moon 
Parkins v. Hawkshaw 
Parks V. Dunkle 
V. Edge 

„. The Gen. Int. Assui 
Parrots v. Thacher 
Parry v. Fairhurst 
Parsons v. Copeland 
V. Huff 
V. Phipps 
V. Purcell 
Partridge v. Coates 
Patten c. Moor 
Patterson v. Choate 
V. Tucker 
V. Winn 
Patton V. Ash 
V. Craig 
V. Goldsborough 

V. R}an 
Paul V. ]Meek 
Paull V. Brown 
Paxton V. Courtnay 
V. Douglas 
Payne v. Rogers 
Pay son v. Good 
Peabodv v. Denton 
Peaceable v. Keep 

V. Watson 
Peacock v. Harris 
Pearee v. Gray 

V. Hoo]^er 
Pearcy v. Fleming 
Pearse v. Pearse 
Pearson v. Coles 

V. Fletcher 



li 

Section 
CO, (34 

49 
lO'J 
30 1 
572 
558 
385 
239, 241 
113 
190 
2 
672 
568 a 
432 
112 
331, 405 
178 
49,66 
271 
402 
243 
451, 456, 459 
268 
434 
186, 239 
558 
73 
Co. 288 
260 a 
73 
195, 527 a 
322 
385 
96 a 
560 
239 «, 242 
112, 174 
437 
349 
38 
116 
180 
117 
97 
389, 408 
282 a 
451 
172, 173 
191 
558 
429 
109, 147 
195 
528 
571 
430 
240 
75 
246 



lii 



INDEX TO CASES CITED. 



Section 
Pearson v. LoMaitre 53 
Pease v. Hurst 174 
V. Peck 480 
Peaslee v. Gee 301 
V. Robbins 42 
Peate's case 339 
Pecker v. Sawyer 385 
Pedler v. Paige 572 
Pedley v. Wellesley 336, 340 
Pecle V. Merch. lus. Co. 197 
Peet V. Dougherty 384 
Peile V. Stoddart 240 
Peirce v. Newton 461 
Peisch V. Dickson 280, 288 
Pejopscot Prop's v. Ransom 20, 46 
Pelamoui'ges v. Clark 440 a 
Pell V. Pell 356 
Pelletreau v. Jackson 22, 101 
Peltzer y. Cranston 118 
Peiuber v. Mathers 260 
Pender v. Fobes 281 
Pendock v. Mackinder 372, 373 
Pennell v. Meyer 201 
Penniman v. Hartshorn 268 
Pennsylvania v. Bell 49 
V. Farrell 414 
(Bank of) V. Hal- 
demand 581 
Penny v. Porter 58, 66 
Penny Pot Landing v. Philadel- 
phia 145 
Pennypacker v. Umberger 385 
Penobscot Boom Corp. v. Lam- 
son 563 
Penrose v. Griffith 23 
Penruddock v. Hammond 240 
People V. Blakeley 458 
People (The) v. Bill 363 
V. (Jarpenter 343 
V. Costello 380, 381 
V. Dean 362, 414 
V. Eastwood 440 a 
V. Franklin 65 
V. Gates 247 
V. Gay 469 
V. Green 198, 346 
V. Herrick 375, 457 
V. Holbrook 89 
V. llopson 92 
V. Howell 414 
V. Irving 353, 452 
V. Irwin 296 a 
V. Kelly 451 a 
V. Knickerbocker 158 
V. Lohman 407 
V. Mather 451, 454, 
456, 461 
V. Matteson 369 
V. McGarrcn 369 



Section 

People (The) v. McMahon 225 

V. McNair 367 

V. Miller 249 

V. Minch 484 
ex rel. Ordronanx 

V. Clicgaray "343 

V. Pease 378 

V. Phillips 247 

V. Pollyon 471 

V. Price 49 

V. Robinson 158 

V. Rogers 229 

V, Sanchez 434, 442 

V. Shea 101 a 
V. Sheriff of New 

York 239 a 

V. Spooner 580, 581 

V. Throop 474 

V. Videto 13 

V. Whipple 375, 379 

Pepin V. Solomons 51, 63 

Pepoon V. Jenkins 501, 505 

Percival v. Nanson 115, 152 

Perham v. Reynall 174 

Porigal V. Nicholson 155, 421 

Perkins v. Perkins 42 

V. Walker 531 a 

V. Webster 301 

Pernam v. Weed 801 

Perrin v. Noyes 81 a 

Perry *;. Fleming 429 

V. Gerbeau 200 

V. Gibson 445 

V. Massey 443 

Perry's case 343 

Ferryman v. Steggall 427, 428 

Petapsco Ins. Co. v. Southgate 323 

Peterborough v. Jaffrey 440 

Peterman v. Laws 398 

Peters v. Warren Ins. Co. 541, 543 

Peterson v. Stoffles 388 

Petherick w. Turner 112 

Peto V. Blades 398 

PL-trie's case 243 

Pettibone v. Deringer 323, 352 

Pettingill v. Dinsmore 55 

Petty V. Anderson 185 

Peyreaux v. Howard 6 

Peytoe's case 302 

Peyton v. Hallett 392 

Peytona (The) 427 

Pharaoh v. Lush 288 a 

Phealing v. Kenderdine 451 

Phelps V. Cutler 80 

V. Foot 101 

V. Rilev 167, 418 

Phenix V. Ingraham 180, 392 

Philadelphia & Trenton Co. 

V. Stimpson 423, 449 



INDEX TO CASES CITED. 



PhilaaclplnaW.&B.ll.R.Co 

V. Howard 
Phillips l^ Allen 
V. lienck 
V. Earner 
V. Hall 
V. Hunter 
V. Irving 
V. Kinglield 
V. Shaw 
1}, Wells 
,;. AVinbm-u 
PluUIskirk V. PluckwcU 
Phipps V. riteher 

v. Sehullhorpc 
Piatt V. ISlcCuUough 
Pickard o. Bailey 
V. Sears 
Pickering v. Bp. of Ely 
V. Dowson 
V. Noyes 
Picton's (Gen.) case 
Piddoek V. Brown 
Pierce v. Butler 
V. Chase 
V. Hoilinan 
V. Parker 
V. Weymouth 
V. Wood 
Plerson i'. Hutchinson 
Pigot V. Uavies 

V. HoUoway 
Pike V. Crehore 

V. Hayes 
Pile V. Benham 
Pirn V. Currell 
Pipe V. Steel 
Pitmaii V. Maddox 
Pitt V. Chapelow 

V. Shew 
Pittam I'. Foster 
Pitton V. Walter 
Pittslield, &c. P 

son 
Pizarro (The) 
Planehe v. Fletcher 
Plank-Road Co. r. Bruce 

V. Wetsel 
Plant V. McEwen 
Planters' Bank v. George 
Plattekill v. New Paltz 
Plaxton I*. Hare 
Pleasant v. State 
Plimptcm i\ Chan\l)erlam 
Pluml)e c. Whiting 
Pluuuner v. Briscoe 

V. Sells 
Plunkett V. Cobbett 
Pocock c. Billings 



Section 

1G4 
28 
53-2 
445 
207 
542 
49 
461 
70 
565 
227 
78 
409 
207 
20 
486, 514 
204 
115 
281 
246 
492 
361 
399, 401 
423 



115 



53 
288 
304 
112 
558 
521 
437 
513 
109 
428 
139 
356 
117 
207 
49 
176 
510 



Co. V. Harri- 

484 
31,37 
488 
20 
568 a 
179 
452 
331 
143, 150 
432 
109 
387 
92, 113, 207 
185 
251 
190 



Podgett V. Lawrence 
Poignard o. Smith 
Pole V. Uogers 
Pomeroy v. Baddeley 
Pond 0. Hartwell 
Ponsford v. O'Connor 
Pontilex i". Jolly 
Pool V. Bridges 

V. Dicas 
Poole y. Palmer 

V. Richardson 
V. Warren 
Pope V. Askew 

V. Devereux 
Poplin V. Hawkc 
Porter v. Byrne 

V. Ferguson 
V. Judson 
V. Pillsbury 
V. Poquounoc Man 
V. Seller 
V. State 
Potter V. Baker 
11. Ware 
V. Webb 
Potts V. Everhart 
Poultney v. Ross 
Poulter V. KiUingbeck 
Powel V. Hord 

11. Milburn 
V. ]\Ionson 
Powell V. Blackett 
V. Bradbury 
V. Edmunds 
V. Ford 
V. Gordon 
V. State 
V. Waters 
Power V. Frick 
V. Kent 
Powers V. ISIcFerran 
V. Nash 
V. Russell 
V. Shcpard 
V. Ware 
Prather v. Johnson 
Pratt V. Andrews 
V. Goswell 
V. Jackson 
Prentice v. Achorn 
Prescott V. Wright 
Prest V. Mercereau 
Preston v. Bomuar 
V. Carr 
V. Harvey 
V. Merceau 
Prettyman v. l>ean 
Prevost V. Gratz 
Prewitt V. Tilly 



Co. 



■ liii 

Section 
189 
349 

320 
432 
420 
320 
81 
108 
, 116, 120 
395, 407 
440 
558 
577 
180 
550 
275 
108 
115 
322 
440 
54 
432 
532 
386 
55 
109 
118 
271 
394 
35 
26 
572 
473, 559 
281 
577 
392 
462 
164 
576 
239 
575 
188 
74 
323 
566 
116, 120 
54 
559 
288 
284 
284 

lis 

301 
240 
531 

275, 281 
358 
564 

331, 430 



liv 



INDEX TO CASES CITED. 



Price 11. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

Primm v 



Currell 
Dewluirst 
Harrison 
llarwood 
Ld. Torrington 
Littlewood 
^Morris 
Faire 
Powc-U 
Stewart 



Prince v. Blackburn 

V. Samo 

V. Sbepard 

V. Smith 

V. Swett 
Printnp v. Mitchell 
Printz (!. Cheney 
Pritchard v. Bagshawe 
V. Brown 
V. Draper 
V. Foulkes 
V. ISIcOwea 
V. Walker 
Pritt r. Fairclough 
Proctor V. Lainson 
Proiit}' V. Ruggles 
Provis V. Reed 
Pullen V. Hutchinson 

V. Shaw 

V. The People 
Pully V. Hilton 
Punderson i\ Shaw 
Purcell V. IN'IcNamara 
Purviance v. Dryden 
Putnam v. Lewis 
Putt V. llawstern 

V. Roster 
Pye's case 
Pyke V. Crouch 
Pytt V. Griffith 



Q. 



Section 

128 

541, 546 

559 

2(j8 

116 

137 

323 

289 

440 

41 

572, 575 

467 

420 

118 

118 

113, 200,- 564 

451 a 

203 

26, 266 

112 

243 

118 

195 

40, 116 

180 

322 

469 

564, 569, 575 

564 

335 

485 

118 

56, 60, 70, 78 

358, 395 

212 

533 

633 

65 

536 

572 



Quarterman v. Cox 422 

Queen (The) v. Muscott 257 

Queen's (The) case 88, 201, 218, 

234, 370, 371, 462, 463, 465, 467 

Quick V. Staines 207, 210 

Quimby v. Buzzell 572 

V. Wroth 430 

Quincey v. Quincey 285 



R. 



Radburn v. Morris 428 

RadcliiFe v. Fursman 240 

V. United Ins. Co. 479, 491 





Section 


Radford v. Mcintosh 


92, 195 


Rallies V. Wichelhaus 


288 a 


Raggett V. Musgrave 


198 


Ralph V. Brown 


558 


Ralston V. Miller 


145 


Ramadge v. Ryan 


441 


Rambert v. Cohen 


90, 436 


Rambler v. Tryon 


440 


Ramkissenseat v. Barker 


371 


Ranisbottom v. Turnbridge 


87, 89, 96 


Ramuz v. Crowe 


558 


Randiffe (Ld.) v. Parkins 


144 


Rand v. Mather 


303 


Randall v. (kirney 


316 


V. Lynch 


205 


V. Parramore 


551 


V. Phillips- 


392 


Randall's case 


340 


Randel v. Chesapeake 


563 


Randle i\ Blackt)urn 


201 


Randolph v. Gordon 


142 


Rands v. Thomas 


383 


Rangeley v. Webster 


640 


Rank v. Shewey 


87 


Rankin v. Blackwell 


564 


V. Horner 


194 


V. Tenbrook 


109 


Ransom v. Keyes 


427 


Rape V. Heaton 


488 a 


Raper v. Birkbeck 


566 


Rapeyle v. Prince. 


636 


Rastall v. Stratton 


70 


Ratcliir V. Chapman 


130 


V. Pemberton 


302 


V. Planters' Bank 


568 a 


V. RatcliU' 


507 


V. Wales 


253 a, 344 


Ravee v. Farmer 


532 


Raven v. Dunning 


356 


Rawlings v. Chandler 


469 a 


Rawlins v. Desborough 


74, 441 


Rawson v. Haigh 


108, 110 


V. Turner 


533 


V. Walker 


281, 304 


Raymond v. Longworth 


484 


V. Raymond 


281 


V. Squire 


173 


Raynham v. Canton 


489, 505 


Read v. Brookman 


45, 566 


V. Dunsmore 


73 


V. James 


445 


V. Passer 


86, 107, 493 


V. Sutton 


508 


Reade's case 


210 


Reading v. McCubbia 


145 


Reardcn v. Minter 


571 


Reay v. Richardson 


197, 287 


Recce v. Rigby 


49 


V. Trye 


240 



INDEX TO CASES CITED. 



Ptced V. Anderson 

V. Dick 
V. Diokey 

V. Jackson 19, loo, 
V. Kemp 
V. Lamb 

V. Propr'S of Locks 
V. Rice 
Rees V. Overbaugh 
V. Smith 
V. Walters 
V. Williams 
Beeves v. Matthews 

V. Slater 
Regicide's case 
Regina v. Adderbury 
V. Arnold 
V. Atwood 
V. Avery 
V. Baldry 
V. Ball 
V. Bannen 
V. Barber 
V. Bedford 
V. Biikett 
V. Bird 

v. Birmingham 
V. Blake 
V. Bond 
V. Boulter 
V. Butler 
V. Caldwell 
V. Champney 
V. Chapman 
t'. Child 
V. Olay 
V. Coote 
V. Cranage 
V. Dent 
V. Duneombe 
V. Dyke 
V. Farley 
V. Ford 
V. France 
V. (iarliftt 
V. Gardiner 
V. Garner 
V. Gazard 
V. Gould 
V. Hall 
V. Ilankins 
V. llartington 
i\ Hawks 
V. Hearu 
V. Hewett 
I'. Hill 
V. Hincks 
V. Holden 



Section 

5(>3 
427, 436 
110 
liiy 
137, 139, 145 
568 
50" 
&c. 49, 237 
323 
566 
74 
142 
672 
360 
69 
256 
175 
2'>4 225, 229 
220 
243 
220 a 
435, 444 
382 
580 
138 
381 
;166 
109 
233 
65 



257 



Iv 



Section 
220 
252 
241 
562 
222 
28 
156 
130, 139 
158 
223 
184, 362, 537 
227 
435, 445, 576, 580 
92 



218, 227 
580 
257 
435 
167 
54 
34 
62 
488 
463 
381 
239, 241 
436 
554 
193, 225, 451 
257 
219, 220 
249, 364 
231 
113 
560 
534 
233 
222, 232 
156 
365 
362 
462, 465 



Regina v. Holmes 
V. Hughes 
i\ Junes 
V. Kitson 
V. Laugher 
V. Mansfield 
V. Megason 
V. Milton 
V. Mooney 
V. Moore 
V. Moreau 
V. Morse 
V. Murjihy 
V. Newton 
V. Overton 
• V. Owen 
V. Parker 
V. Perkins 
V. Philpots 
V. Pikesley 
V. Plummer 
V. Povey 
V. Roberts 
V. Shellard 
V. Spicer 
f. St. George 
11. Stoke 
V. Taylor 
V. Yickery 
V. Vincent 
V. Weller 
V. Wheeley 
V. Williams 
V. Wooldale 
V. Worth 
V. Yates 
Reid V. Battia 

V. Margison 
Reillv «• Fitzgerald 
Reitenback v. Reitenback 
Remon v. Havward 
Sererr. Bank of Columbia 

Respubliea i'. Davis 
V. Gibbs 
V. Keating 
V. McCarty 
I'. Ross 
Revett r. Braham 
Revis V. Smith 
Rex V. Addis 
V. Aikles 
V. Algood 
V. Allison 
V. All Saints 
i'. Almon 
V. Antrobus 
r. Appleby 
V. Arundel 
t'. Ashton 



448 
226 
257 
157, 158 
436 
224, 225 
166 
488 
257 
462, 463, 465 
65 
462 
292 
449, 463 
83 
102 
227 
226 
335 
69 
115, 147, 150 
257 
89 
508 
131 
233 
280 
84, 292 
187 
456 
414 
218, 224 
362 
76, 580 
452 
381 
484, 4i»3 
473, 475 
86 
342 
36, 234 
138 
199, 217, 233 
6, 37 
158, 162 



Ivi 



INDEX TO CASES CITED. 







Section 






Section 


Rex V. Atkins 




195 


Ilex«. Dunn 




223 


V. Atwuod 




380 


t'. Durham 




380 


V. r,al)l) 




471 


V. Edwards 


449 


457, 463 


V. liakcT 




15G 


V. Ellis 




225 


V. Ball 


63, 


224, 227 


V. Embden 




512 


V. Barnard 




380, 459 


V. p]noch 




218, 222 


V. IJarnes 




195, 018 


V. Eriswell 99, 125 


, 138 


163, 553 


V. Bartlett 




215 


V. Eagent 




158, 159 


V. Batlnvick 




342, 570 


V. Eagg 




224 


V. Beanlniore 




319 


V. Farringdon 




21 


■ V. Bt'llaniy 




508 


V. Earrington 




34 


V. Benson 




82, 512 


V. Fearshire 




227 


V. Bevan 




403 


V. Eerrei'S 




343 


V. Bonner 




158, 160 


V. Eerry Erystone 




125 


V. Book 




253 


V. Pltzgerald 




484, 493 


V. Borrett 




■ 195 


V. Fletcher 


218, 


363, 379 


V. Boston 362, 


390, 


414, 537 


V. Ford 




373, 378 


V. Bishop of Ely 




474 


v. Forsyth 




479 


V. Brandreth 




111 


V. Foster 




228 


V. Brangain 




471 


V. Fox 




418 


V. Brasie 




•367 


V. Francklin 




491 


V. Brewer 




244 


V. Frederick 




335 


V. Britton 




193, 226 


V. Fuller 




34 


V. Brommiek 




195 


V. Fursey 




84, 94 


V. Brooke 




445, 447 


V. Gardiner 




374 


V. Brown 




245 


V. Gardner 




195, 479 


V. Bryan 




21 


V. Gay 




. 161 


V. Burditt 




78 


V. Gibbons 


222 


223, 248 


V. Burley 




379 


t'. Gilham 




193, 229 


V. Callahan 




161 


V. Gilroy 




459 


V. Careinion 


96, 


372, 375 


V. Gilson 




87 


V. Carty 




227 


V. Gisburn 




95, 422 


V. Castleton 




558 


V. Goodere 




432 


V. Cator 




580 


V. Gordon (Ld. George) 


83, 92, 


V. Chapman 




435 






482 


V. C'haiipell 




90, 224 


V. Green 




229 


V. Christie 




158 


V. Greene 




225 


V. Clai)liam 




493 


V. Greepe 




378 


V. Clarke 54, 


102, 


210, 469 


V. Griffin 




222, 232 


V. Clowes 201, 


218, 


221, 223 


V. Grimwood 




484 


V. Cliviger 




342 


V. Gully 




6 


V. Cole 




390 


V. Gutch 




36, 234 


V. Collery 




432 


V. Ilarbome 




35 


V. Cook 




432 


V. Hardwick 


112, 


174, 175, 


V. Cooper 




221 






223, 331 


V. Cope 




116 


V. Hardy 




111, 250 


V. Cotton 




131 


V. Hargrave 




380 


V. Court 


218, 


219, 229 


V. Harringworth 




569 


V. Crockett 




158 


V. Harris 


227, 


231, 257 


V. Davis 




225, 373 


V. Hastings 




380 


V. Dawlicr 




380 


V. Hawkins 




35, 80 


V. De Beringer 




6,491 


V. Hay 




30 


V. Dean of 8t. Asaph 


49 


V. Hay ward 




158 


V. Derringtou 




229 


V. Hazy 




78, 82 


V. Despard 




382 


V. Hearne 




218 


V. Dixon 




18, 243 


V. Hebden 




536 


V. Doherty 




343 


V. Higgins 




218 


V. Doran 




87 


V. Hodgdon 




458 


V. Drummond 




157 


V. Hodgkiss 




461 



Rex 





INDEX TO CASES CITED. 




Ivii 




Section 






Section 


X V. Hodp^son 


54 


Rex V. Morton 




558 


c. Ilollister 


478 


V. Mosley 




158 


1). Holt 


479, 4!)2 


V. iVIudie 




257 a 


V. Hood 


335 


V. ^lutincers 




363 


I'. Ilo.-itmon of Newcastle 47.3 


V. Xeale 




381 


V. II()ii;;litoii 


53 


V. Neville 




2(J9 


V. Howard 


83, 91, 92 


V. Noakes 




381 


V. Howes • 


90, 111, 142 


V. Nortiianipton 




53 


V. Hii})e 


86, 96 


I'. North Pendleton 




493 


V. Hiuks 


65, 160 


V. Nuneham Courtney 


125 


V. Hunt 


28 


V. Nutt 




36 


V. Hunter 


246 


V. Oldroyd 




442, 444 


V. Hutcliinson 


156 


V. Page ' 




658 


V. Inluib. of Castle " 


Morton 96 


V. Paine 




218 


V. Inliab. of Holy T 


rinity 87, 96 


V. Parker 




257 a 


V. Inhab. of Netiierthong 333 


V. Parratt 




222 


V. Jacobs 


227 


V. Partridge 


34 


, 220, 222 


V. Ja.iiger 


343 


V. Pedley 




440 


V. Jarvis 


78 


V. Pegler 




451 


V. Jenkins 


222, 232 


V. Phillips 




28 


V. Johnson 


40 


V. Picton 




488 


V. Jones 6, 92, 


218, 220, 222 


V. Pike 




157, 367 




232, 319, 380 


V. Pippitt 




70 


V. Jordan 


28 


V. Pitcher 




458, 460 


V. Justices of Buckingham 474 


V. Plumer 




40, 198 


V. Justices of Surrey 478 


V. Pountney 




222, 223 


V. Kea 


253 


V. Pratten 




78 


V. Kerne 


195 


V. Pressly 




90, 228 


V. King 


484, 498 


V. Priddle 




37-3 


V. Kingston 


223 


V. Purnell 




474 


V. Kirdford 


331 


V. Rams den 




437 


V. Knill 


257, 259 


V. Rawden 




87 


V. Knollys 


6 


V. Read 




227, 228 


v. Lafone 


363 


V. Reading 




344, 457 


V. Laindon 


285 


V. Reason et al. 


156 


159, 161 


V. Leefe 


65 


V. Rhoades 




484, 493 


V. Lewis 225, 


226, 451, 457 


V. Richards 




221 


V. Lingate 


223 


V. Rivers 


224 


225, 227 


V. Lloyd 


229 


V. Roberts 




53 


V. Lloyd d al. 


156 


V. Roddam 




312 


V. Locker 


335, 407 


V. Rogers 




78 


V. Long Buckby 


\ 21, 46 


V. Rookwood 




461 


V. Lucas 


473 


V. Row 




223 


V. Luckup 


403 


V. Rowland 




363 


V. Luile 5 


, 28, 253, 344 


V. Rowh-y 




165 


V. MagiU 


229 


V. Rudd 


335, 


386, 413 


V. ]\Ialu'w 


257 


V. Russell 




319, 559 


V. Mai-tin 


54, 484, 493 


V. Ryton 




21 


V. Mashiter 


280 


V. Sadler 




311 


V. Mayor 


536 


V. Saunders 




224 


V. Mayor of London 


331 


r. Scaife 




. 159 


V. IMead 


156, 343 


V. Scammonden 




285, 305 


V. ^lerceron 


193 


V. Searle 




440 


V. Merchant Tailors 


474 


V. Sergeant 




336, 343 


V. Miller 


6 


IK Sextons 




222 


V. Mills 


220, 222 


V. Sluiw 


225, 


229, 237 


V. ]\Ioore 


381 


V. Shelley 


83, 


475, 478 


V. Morgan 


371, 578 


V. Shepherd 




222 


V. IMorris 


512 


t'. Sherilf of Chester 




473 



Iviii 



INDEX TO CASES CITED. 







Section 






Section 


Rexr. Sherman 




363 


Rex V. Wilkes 




321 


V. Siiipley 




18 


i\ Williams 367, 


392, 


403, 412 


V. Simons 


45, 


200, 224, 229 


V. Withers 




237, 479 


V. Simpson 
V. Slancy 




222, 223 


V. Woburn 1 75, 330, 


331 


353, 452 




451 


V. Woodcock ] 


L50, 


158, 159, 


V. Slaughter 




223 






161, 346 


V. Smith 53, 


243, 


335, 473, 482, 


V. Wright 




440 






508, 513 


V. Wylie 




o:i 


V. Smith & Homage 


224, 225 


... 




34 






V. Smithie 




215 


V. Yewin 




450, 459 


V. Spencer 




223, 512 


Rey V. Simpson 




288 


V. Spilsbury 


158, 


160, 227, 229 


Keyner v. Hall 




212 


V. Steptoe 
V. Stevens 




218 


Reynolds v. Manning 




120, 201 




39 


V. Rowley 




113, 246 


V. St. Martin's 




436, 437 


I'. Staines 




171 


V. St. Mary Magdalen, Ber- | 


Rhine c. Robinson 




165 


mondsey 




333, 347 


Rhodes V. Ainsworth 




139, 405 


V. Stone 




78 


t'. Bunch 




55 


V. St. Pancras 




531, 534 


Ribbans t'. Crickett 




205 


V. Sutton 




5, 139, 491 


Ricard v. Wiiliaius 




17 


V. Swatkins 




222, 228 


Ricardo v. Garcias 




546 /i 


V. Tarrant 




90, 228 


Rice V. Austin 




420 


V. Taylor 




222, 223 


V. K.E. Marine Ins 


Co 


444 


V. Teal 




383, '458, 459 


V. Peet 




284 


V. Teasdale 




412 


V. Rice 




239 a 


V. Tellicote 




228 


V. Wiikins 




■ 394 


V. Thanet 




364 


Rich V. Flanders 




177 


V. Thomas 




219, 223 


V. Jackson 




265, 281 


V. Thornton 


222 


225, 229, 230 


V. Topping 




399 


V. Tilly 
V. Tower 




403 


Richards v. Bassett 


130 


, 131, 137 




473 


V. Howard 




118 


V. Tubby 




225 


V. Morgan 




obo 


V. Turner 




78, 79, 233 


Richardson v. Alien 




443 


V. Twining 




35, 41 


V. Anderson 




173, 487 


V. Tyler . 




218, 223 


i\ Carey 




110, O&J 


V. Upchureh 




222, 223 


V. Desborough 


260 a 


V. Upper Uoddington 239 


V. Dorr 




24 


V. Van Butchell 


158, 160 


V. Fell 




81 


V. Vaughan 




432 


V. Freeman 




333, 427 


V. Verelst 




83, 92 


V. Hooper 




303 


V. Virrier 




257 a 


V. Hunt 




3b7 


V. Wade 




367 


V. Learned 




341 


V. Walker 




218, 225 


V. Newcomb 




581 


V. Walkley 




223 


V. Watson 




288 


V. Waller 




65 


V. AVilliams 




362 


V. Walter 




36, 227, 234 


Richmond v. Patterson 




484 


V. Waters 




65 


1'. Thoniaston 




108 


V. Watkinson 




245 


Rickards v. Murdock 




441 


V. Watson 


40, 52, 65, 90, 101, 


Rickets v. Salwey 




63, 72 


111, 198, 


250, 


256, 423, 449, 


Ricknian's case 




34, 53 






459, 460 


Riddick v. Leggatt 




301 


V. Webb 




225, 381 


Riddle V. Moss 




402 


V. Wells 




381 


Ridgway v. Bowman 




281 


V. Westbeer 




379 


V. Ewbank 




81 


V. White 




367 


Ridley v. Gyde 




108, 110 


V. Whitley Lower 


175 


Rigg V. Curgenwen 




200, 210 


V. Wickham 




285 


Riggins V. Brown 




165 


1?. Wild 




225, 229 


Riggs V. Taylor 




349 


V. Wilde 




6, 223, 229 


Right c. Price 




272 



INDEX TO CASES CITED. 



Riley v. Gerrisli 
V. Suydiiiu 
Rind<,'e v. Brock 
Kinggokl V. Tyson 
Rioters (The) 
Hiuley V. Thompson 

r. Warreu 
llipon i: Davies 
liipple V. Kipple 
Kishton v. jS'esbitt 
lloach V. Garvan 

V. Learned 
Robb V. Starkey 
Robbius V. King 
V. Otis 
Roberts v. Adams 
V. AUatt 
V. Doxon 
V. Simpson 
V. Tennell 
V. Trawick 
V. Wliiting 
Roberts's case 
Robertson v. French 
V. Lynch 



Robinson 



V. Smith 

V. Stark 

V. Teal 
V. Batchelder 
V. Cushman 
Dana 



Section 
281 
185 
118 
385 
412 
395 
f) 
245 
505, 546 
lUG 
645 
108 
660 
254, 334 
58, 68 
392 
451 
93 
246 
551 
392 
420 
221, 222 
278 
58 
427 
440 
6 
304 
211 
365 



Roe V. Lowe 

V. Rawllngs 
V. llcade 

Roelker, In re 

Rogers v. 

V. 
V. 
V. 
V 



lix 



Section 

46 

21, 152, 570 

46 

319 

58, 71, 130, 14;i 

427 



562 
421 
207 
533 

395 
129, 136 
373 
304 
385 
608 
305 
6 a 
493 
532 
55, 482, 491 
286 
451, 460 
121 



0, 



Fitchburg R.R. Co. 114 a 



Flight 
Gilman 
Jones 

Hutchinson 
V. ^Larkiss 
V. Nahor 
V. Frescott 
V. Trull 
V. Yarrow 
Robinson s case 
Robison v. Alexander 

V. Sweet 
Robson V. Drummond 

V. Kemp 
Roby V. Howard 
Rochester i'. Chester 
Roden v. Ryde 
Rodman v. Forman 

V. Hoops 
Rodriguez i\ Tadmire 
Rodwell V. Phillips 
V. Redge 
Roe V. ArchVp of York 
V. Day 
v. Ferrars 
V. Ireland 
V. Jeflrey 



240 a 
479 
543 
180, 462 
322 
27, 207 
505 
3U, 319 
196 
53 
193 
108, 195, 527 
281 
181, 240, 245 
76 
440 
575 
70 
118 
55 
271 
35 
265 
197, 201, 287 
202 
45 
130 



Allen 
Berry 
Cuslance 
l)il)ble 
Pitcher 
V. Thompson 
V. Turner 
V. Wood 
Rogers's case 
Rolian V. Hanson 
Rohrer r. Morningstar 
Rolfy. Dart 
Rollins V. Dyer 
Romero v. United States 
Roukeudortr v. Taylor 
Root V. Fellowes 

King 
Ropps V. Barker 
Rose V. Blakemore 
V. Bryant 
V. HImely 
V. Savory 
Roseboom v. Billington 
Rosevelt v. ]Marks 
Ross V. Anstell 
V. Bruce 
V. Buhler 
V. Gould 
r. Lapham 
V. Rcddick 
V. Rhoads 
Rothehoe v. Elton 
Kotherham v. Green 
Rowe V. Brenton 
V. Grentel 
V. Hasland 
Rowland c. Ashby _ 

RowUindson v. Wamwright 
Rowley i\ Ball ^q 

Rowntree v. Jacobs ,^^ 

Rowt V. Kile ^^ 

Ruau V. Perry ,,„- 

Rncker v. Palsgrave -^^ 

Rudd's case oq!^ 

Rudge V. Ferguson " 

Rugiiles r. lUickner - 

Runjlbrd t^ Wood ^^. 

Rank i\ len t.\th. 

Rush V. Flickwu-e ^^- 

i\ Smith .-o 

Rushforth i'. Pembroke 1^-^^ -^f^ 

Russell V. Beuckley g^,. 

V. Blake ,.,_ .\r. 

n 4Kr. 43<, 469 

V. Coffin ' .^^ 

U.Jackson 23<,24U, -** 



541 
118 
121 
112 
6 
89 
364 
49, 160, 425, 564 
55 
6 
145 
396 
71 
151, 512, 517 
5 
41 
224, 227 
84 
558 



Ix 



INDEX TO CASES CITED. 



Section 
Russell V. Rider 437, 466 

Russel V. Werntx 287 

Russian Steam Nav. Co. 

V. Silva 292 

Rust V. Baker 41 

Rustell V. Macquister 53 

!lliiistin"s ease 366 

Kutlierford v. Rutherford 272 

Rutlaud & B. R.ll. Co. v. Sim- 
sou's Adm'r 329 
Rjau V. Sams 207 



S. 



Sabine v. Strong 
Sackett v. Spencer 
Sage V. IMeAlpine 

V. Wilcox 
Sainthill v. Bound 
Salem v. Lynn 

V. Williams 



323, 418 
440 
532 
268 
449 
1U8 
208 



Salem Bank v. Gloucester Bank 200, 

208 

Salisburj' v. Connecticut 412 

Salmon v. Ranee 392 

Saltar v. Applegate 20 a 

Sake V. Thomas 484, 493 

Saltmarsh v. Tuthill 385 

Sample v. Frost 239 a 

Sampson v. Overton 506 

Sanborn v. Xeilson 192 

Sanches v. People 434 a 

Sanderson v. Collman 207 

V. Symonds 565 

Sandford v. Chase 316, 317, 318 

V. Hunt 75 

V. Raikes 285 

V. Remington 245 

Sandilands v. Marsh 112 

Sangster v. Mazarredo 177 

Santissima Trinidad (The) 4 

Sargeant v. Sargeant 172, 190, 353, 

354 

Sargent v. Adams 297 

V. Fitzpatrick 532 

V. Hampden 239 a 

Sartorious v. State 432 

Sasscer v. Farmer's Bank 5 

Satterthwaite v. Powell 30 

Saunders v. Hendrix 338 

Saunders v. Mills 53 

V. Wakefield 268 

Saunderson v. Jacksoa 268 

V. Judge 40 

V. Piper 297 

Sauniere v. Wode 113 

Savage v. Balch 180 

V. Smith 59 





Section 


Savignac v. Garrison 


49 


Sawyer v. Baldwin 


484 


V. Eilert 


55 


In re 


222 



V. Maine Fire & Marine 

Ins. Co. 541 

Saxton V. Johnston 58 

V. Nimms 484 

Sayer v. AVagstaff 438 

Sayles i'. Briggs 608 

Sayre v. Reynolds 564 

Say ward v. Stevens 281 

Scales V. Jacob 113 

Scammon v. Scammon 1C8, 190, 314 

Scanlan v. Wriglit 571 

Schaclier v. Kreitzer 510 

Schall V. Miller 167 

8cliaul)er v. Jackson 46, 47 

Schermerhorn v. Schermerhorn 356 

Schillinger v. McCann 26, 420, 421 

Schinotti v. Bumstead 474 

Schmidt V. New York, &c., Ins. Co. 55 

Schnablc v. Koeliler 409 

Schnertznell v. Young 606 

Schretier t". State 225 

Schooner Reeside 292 

Sclu-eger v. Garden 205 

Schucliardt v. Aliens 51 a 

Scorell V. Boxall 271 

Scoresby v. Sparrow 349 

Scott V. Blanchard 605 

V. Brigham 118 

V. Burton 284 

V. Clare 86, 96, 203 

V. Cleveland 505 

V. Hooper 370 

V. Hull 75, 76 

V. Jones 89 

V. Lillbrd 426 

V. Llovd 354, 385 

V. Marshall 180 

V. McLellan 391, 399, 401 

V. Pilkington 546 b 

V. Waithman 207, 571 

V. Wells 416 

Scovill V. Baldwin 37 

Scraggs V. The State 104 

Scribner v. McLaughlin 421 

Scrimshire v. Scrimshire 545 

Seaman v. Ilogeljoom 287 

Searight v. Craighead 112 

Searle v. Ld. Barrington 122 

Sears v. Brink 268 

V. Dilhngham 347 

Seaver v. Bradley 392 

V. Robinson 318 

Seavy v. Dearborn 436, 443 

Sebree v. Dorr 84, 87 

Seddon t\ Tutop 532 



INDEX TO CASES CITED. 



Ixi 



Sedgwick v. Walkins 
Sec'ki-iglit V. Bogan 
Selby V. Hills 
Solilon V. Williams 
Self'e V. Isaacson 
Sells V. lloare 
Sehvood v. Mildway 
Sehvyn's case 
Senior v. Arm}i;age 
Serchor v. Talbot 
Sergeson v. Sealey 
Serle v. Serle 
Settle V. Allison 
Sewell V. Evans 
V. Stubbs 
Seymour v. Beach 

V. Delancy 
Seymour's case 
Shack V. Anthony 
Shafer v. Stonebreaker 
Shaller v. Brand 



Section 

340, 343 

319 

31G 

295 

432 

371 

289 

30 

294 

69 

556 

397 

21, 506 

575 

95, 97, 422 

519 

284 

84 

303 

531 

144 



Shambm-g v. Commagere 885 

Shankland v. City of Washington 281 

Shankwiker v. Reading 322 

Shannon v. Commonwealth 423 

Sharp V. Sharp 488 a 

Shai'pe V. Bingley 437 

V. Lanibe 560 

V. Sharpe 581 

Shaw V. Broom 190 

V. Charlestown 440 

V. Emery 461 

Sheafe v. Rowe 440 

Shean v. Philips 239 a 

Shearman v. Aikens 116, 120, 147 

Shedden v. Patrick 104 a, 133, 469 a 

Sheehy v. Mandeville 69, 539 a 

Sheen v. Bumpstead . 101 a 

Sheffield v. Page 284 a 

Shelby v. Smith 420 

V. The Governor, &c. 187 

V. Wright 23, 26 

Shelb}^ine v. Shelbyville 40 

Sheldon v. Benham 116, 280 

V. Clark 79 

Shelling v. Farmer 474 

Shelly V. AVright 531 a 

Shelton v. Barbour 164 

V. Cocke 112 

Shelton v. Deering 568 a 

V. Livius 271 

Shepard v. Palmer 416 

Shepherd v. Chewter 212 

V. Currie . 38 

V. Little 26 

V. Thompson 145 

Sherburne v. Shaw 268 

Sheridan v. Kirwin's case 90 

Sheriff V. Wilkes 174 



Section 

Sherman v. Akins 120 

V. Barnes 396 

V. Crosby 116, 120, 147, 152 

V. Sherman 197 

Sherrington's case 221 

Sherwood v. Burr 17 

Shields v. Boucher 103 

Shires v. Glasscock 272 

Shirley v. Shirley 268 

V. Todd 190 

Shoenberger v. Zook 304 

Shoenbergher v. Hackman 82 

Shore v. Bedford 239, 243, 245 

Shorey v. Hussey * 443 

Short V. Lee 83, 115, 147, 119, 153, 

154, 155 

V. Mercier 451 

Shortz V. Unangst 558 

Shott V. Streatheld 101 

Shotter v. Friend 260 a 

Shown V. Barr 506 
Shrewsbury (Carpenters of) 

V. Hayward 405 

Shrewsbury Peerage 105, 106 

Shrouders v. Harper 558 

Shumway v. Holbrook 518 

V. Stillman 548 

Shuttleworth v. Bravo 392 

Sibley v. Waffle 239 

Sidney's case 5"76 

Silk V. Humphreys 81 

Sillick f. Booth 30, 41 

Sills V. Brown 440, 537, 553 

Silver Lake Bank v. Harding 505 

Simmonds, la re 272 

Simmons v. Bradford 27 

V. Simmons 257, 381 

Simpson v. Dendy 53 a 

V. Fogo 54-6 &, 546 e 

V. M:u-gitson 49, 277 

V. Morrison 112 

V. Norton 509 

V. Stackhouse 564 

V. Thoreton 479, 558 

Sims V. Ivitchen 314 

V. Sims 558 

Sinclair v. Baggaley 121 

V. Fraser 546 

V. Sinclair 54:5 

V. Stephenson 275, 284, 437.* 

466, 560 

Singleton w.' Barrett 90,97 

Sisk v. Woodruff 4.^9 

Sissons V. Dixon 35 

Skaife v. Jackson 172, 173, 174, 211 

Skilbeck v. Garbett 40 

Skinner v. Perot 374 

Skipp V. Hooke 5 

Skipworth i\ Greene 26 



/ 



Ixii 



INDEX TO CASES CITED. 



Slack V. Buchannan 

V. Moss 
Slade V. Teasdale 
Sladden v. Sergeant 
Slant Peerage (The) 
Slaney v. Wade 
Slater v. Hodgson 

V. Lawson 
Slatterie v. Poolev 



Section 

.•1!)2 

o8a 

118 

463 

10-i 

104, i;}4 

570 

174, 17G 

96, 96 a, 20;{ 



Slaymaker v. Gnndacker's Exi". 176 

V. Wilson 577 

Sleeper v. Van Middleswortli 4;il 

Sleght v. Ivhinelauder 2,S0 

Sloan V. Souiers 165, IGG 

Sloman v. Heme 180, 181 

Sluby V. Chaniplin 572, 575 

Small r. Leonard 5;J2 

Sniallcorabe v. Bruges 181 

Smart v. Rayner 75 

Smiley v. Dewey 349 

Smith V. Arnold' 268 

V. Barker 68 

V. Battens 121 

V. Beadnell 193 

V. Bell 287 

V. Blackhani 390 

V. Blagge 506 

V. Blandy 201 

V. Brandram 73 

V. Brown 305 

V. Buruham 200, 214 

V. Castles 323, 457 

r. Chambers 392 

V. Coffin 369, 370 

• V. Cramer 108 

V. Crocker 567, 568 

V. Cutter 456 a 

V. Davies 81 

V. De Wruitz 190 

V. Downs 387, 388 

V. Dunbar 568 

V. Dunham 568 

V. Fell 239 

V. Feuner ' 581 

V. Gugerty 440 

V. Hyndman 55 

V. Jeffreys 281 

V. Jeffries 79 

r. Knowelden 73 

V. Knowlton 41, 540 

V. Lane 437 

V. Ludlow 112 

V. Lyon 180 

V. Martin 109 

V. Moore 78 

V. Morgan 179, 436, 469 

V. Nicolls 546 /( 

V. Nowells 145 

V. Palmer 96, 96 a, 203 



Smith V. People 
V. Potter 
V. Powers 
V. Prager 
V. Prcwitt 
V. Price 
V. Prickett 
V. Kedden 
V. Sanibrd 
V. Scudder 
V. Simmes 
V. Sleap 
V. Smith 
V. Sparrow 
V. State 
V. Stiekney 
V. Surnian 
V. Taylor 
V. Thompson 
V. Vincent 
I'. Wliitaker 
V. Whittingham 
V. Wilson 
V. Young 
Smith's case 
Smytlie v. Banks 
Snell V. Moses 

V. Westport 
Snellgrove v. Martin 
Snow V. Batchelder 



Section 

462 

253 o, 480 

109, 145 

386, 409 

145 

442, 444 

465 

513 

117, 334 

185 

180 

560 

38, 107, 189 

351, 421 

158 

469 

271 

63, 195 

300 

176 

488 a 

187 

49, 280, 292 

90, 560 

235 

316 

58 

329 

, 109, 190 

75, 192, 421 



V. Eastern Railroad Co. 348 

Snowball v. Goodricke 180 

Snyder v. Nations 366 
V. Snyder 334, 341, 434 

Society, &c. v. Wheeler 19 

V. Young 46 

Solaman v. Cohen 320 

Solarete v. Melville 388 

Solita V. Yarrow 578 

Solomon v. Solomon 206 
Solomons v. Bank of England 81 a 

Somes V. Skinner 24 

Soulden v. Van Rensselaer 430 

Soule's case 343 
Southanipton (Mayor of) 

V. (J raves 474 

Southard v. Rexford 451 

V. Wilson 401, 422, 426 

Southcy V. Nash 432 

Southwick V. Stevens 36, 89, 234 

V. Hapgood 281 

Souvereye v. Ardcn 361 

Soward v. Leggatt 74, 81 

Sowell V. Champion 358 

Spangle v. Jacoby 491 

Spargo V. Brown 116, 120, 147, 171 

S^jarhawk v. Bullard 38 

Spaulding v. Hood 74, 75 

V. Vincent 488 



INDEX TO CASES CITED, 





Sf-otion 




Section 


Spear r. Eichardson 


43-trt 


State (The) v. Cameron 


156, 101 


ISpears i'. Forrest 
V. Ohio 


462 


V. Candler 


376 


219 


V. Carr 


489, 581 


Speer v. Coate 


145 


V. Coatney 


','A\) 


Spence v. Chodwick 


48S 


V. Colwell 


436 


V. Saunders 


118 


V. Cowan 


220 


V. Stewart 


317 


V. Croteau 


49 


Spenceley v. DeWillott 


449, 455 


V. Crowell 


79 


Speneer v. Billinp; 


93 


V. Davidson 


175 


i\ (iouldiiig 


416 


V. Davis 


343, 462 


V. Roper 


41 


V. De Wolf 


366 


V. William 


521 


V. Dill 


319 


Spicer V. Cooper 


280 


V. Dunwell 


(> 


Spiers V. Clay 


26 


V. Ferguson 


160 


V. Morris 


120 


V. Foster 


362 


V. Parker 


19, 78 


V. Freeman 


220, 252 a 


V. Willison 


87 


V. Grant 


219 


Spraguc V. Cadwell 


462 


». Harman 


219 


V. Litherberry 


19 


V. Hayward 


257 


V. Oakes 


532 


V. Hinchmau 


513, 540 


Spring Garden Ins. Co. v. Riley 438 


V. Hooker 


165 


Spring V. Lovett 


281 


V. Howard 


103, 160 


Springstein v. Field 


55 


V. Isham 


502 


Sprowl V. LaAvrence 


5 


V. Jolly 


337 


Spurr V. Pearson 


389 


v.K 


451 


V. Trimble 


41 


V. Kirby 


223 


Stables V. Eley 


208 


V. Lewis 


20 


Stackpole v. Arnold 212, 275 


281, 305 


V. Littlefield 


171, 195 


Stacy V. Blake 


179 


V. Lull 


436 


Statibrd v. Clark 


531, 532 


V. Mahon 


218 


V. Riee 


385 


V. McAlister 


51 a, 306 


Staiford's (Ld.) case 


235, 255 


V. McDonnell 


34 


Stafford Bank v. Cornell 


416 


V. Molier 


257 


Stainer v. Droitwiteh 


497 


V. Morrison 


79 


Stall V. CatskiU Bank 


387, 430 


V. NeiU 


344 


Stammers v. Dixon 


293 


V. Norris 


444 


Stamper v. GrilHn 


463 


V. O'Connor 


481 


Standage v. Creighton 


186 


V. Parish 


227 


Standen v. Standen 


301 


i). Patterson 


449, 456 


Stanley v. White 


147, 197 


V. Peace 


156 


Stanslield v. Levy 


76 


V. Pettaway 


344 


Stanton v. AVilson 


334 


V. Pierce 


49 


Staples V. Goodrich 


532 


V, Poll 


158, 160 


Stapleton v. Nowell 


205 


V. Powers 


6 


Stapylton v. Clough 99 


116, 120 


V. Rawls 


199, 437 


Stark V. Boswell 


199 


V. Ridgely 


375, 376 


Starkey v. People 


161 a 


V. Roberts 


221 


Starks v. The People 


469 


V. Rood 


488 


Starkweather v. Loomis 


505 


V. Rowe 


469 


V. Matthews 


420 


V. Sater 


461 


State (The) v. Adams 


34 


V. Shearer 


79 


V. Allen 


580, 581 


V. Shellidy 


108 


V. Bailey 


457 


V. Shelton 


156 


V. Bartlett 


513 


V. Simmons 


414 


V. Boswell 


461 


V. Snow 


49 


V. Brookshire 


432 


V. Soper 


233 


V. Broughton 


225 


V. Sparrow 


432 


V. Burlingham 


335 


V. Stade 


489. 505 


». Caffey 


70 


V. Stanton 


414 



Ixiv 



INDEX TO CASES CITED. 



State (The) v. Stinson 
V. Tliilieau 



Tlioinason 

Vaigiieur 

Vitiuin 

Wi'ntworth 

AVhisciihurst 

WliittiiT 

Williams 

\Vorthinor 



St. Clair v. Shale 
Stoad V. Heatou 
Stearns v. Hall 

V. Hendersass 
V. Stearns 
Stebbing v. Spicer 
Stebbins v. Sackett 
Steed V. Oliver 
Steel V Priekctt 
Steele v. Smith 
V. Stewart 
V. Worthington 
Steers v. Cawardiue 
Stein V. Bowman 

V. Weidinan 
Steinkellen v. Newlon 
Steininetz v. Currie 
Stei)hen v. State 
Stephens v. Foster 
V. Vroman 
V. Winn 
Stephenson v. Bannister 
Sterling v. Potts 
Sterrett v. Bull 
Stevens v. McNamara 
V. Pinnay 
V. Tail 
V. Thacker 
Stevenson v. Mudgett 
V. Nevinson 
Stewart v. Alison 
V. Canty 
V. Doughty 
V. Huntington Bank 
V. Kipp 
V. Saybrook 
Stewartson v. Watts 
St. Georjre v. St. Margaret 



Section 

8 70 

233 

1.57 

221 

372 

342 

229 

371 

367 

G 

335, 3G3 

109 

150 

302, 30-4 

109 

528 

38 

422, 423 

361 

130 

548 

239 

26 

397 

19, 334, 337 

253 a 

88, 438 

430 

5 

466 

96 a, 200 

2G8 



506 

558 

117 

41 

89 

20 

184 

429 

505 

498 

49 

271 

332 

392, 409 

331 

113 

28, 40 



Stiles V. The Western Railroad 

Co. 110, 113 

Still V. Hoste 289 

Stinnnel i\ Underwood 387, 388 

St. Marv's College v. Attorney- 
General 46 
Stobart v. Dryden 156 
Stoekbridge v. W. Stockbridge _ 21 
Stockdale v. Hansard ' 6 
V. Younir 558 



Section 

Stockfleth V. De Tastet 193 

Stockliam v. Jones 358 

Stockton V. Dennith 113, 442, 443 

Stoddard v. Palmer 56 

Stoddart v. Palmer 70 

V. Manning 452 

Stoever v. Whitman 280 

Stokes V. Dawes • 104, 556 

V. Stokes 115, 147 

Stonard v. Dunkin 207 

Stone V. Bibb 356 

V. Blackburne 421 

V. Clark 293, 301 

V. Crocker 471 

V. Forsvth 618 

V. Hubbard 280 

V. Knowlton 56, 68 

V. Metcalf 283 

v.. Ramsay 200 

V. Vance 385 

V. Varney 55 

Stoner's appeal 287 

Stoner v. Byron 364, 386 

V. Ellis 485 

Stoop's case 346 

Storer v. Batson 266 

V. Elliot Fire Ins. Co. 288 

V. Freeman 288 

Storey v. Lovett 569 

Storr et al. v. Scott 196 

V. Finnis 205 

Story v. Kimball 613 

V. Watson 73 

Stoulfer V. Latshaw 284 

Stout V. Russell 457 

V. Wood 421 

Stowell V. Robinson 302 

Strakcr v. Graham 252 a 

Stralding v. Morgan 293 

Strange v. Dashwood 572 

Stranger v. Searle 577 

Straton v. Rastall 207, 212, 305 

Streeter v. Bartlett 569 

Strickler v. Todd 17 

Strode V. Winchester * 147, 266 

Strong V. Bradley 513 

Strother r. Barr 87, 96 

Strutt V. Bovingdon 531 

Studdy V. Sanders 210, 507 

Stukeley v. Butler 60, 301 

Stump V. Napier 385 

Sturd}- V. Arnaud 3(J3 

■ Sturge V. Buchanan 116, 201 

Summers v. Moseley 445 

Summersett v. Adamson 203 

Sumner v. Child 17 

». Sel)ec 484 

V. Williams 101 

Sussex (Earl of) v. Temple 189 



INDEX TO CASES CITED. 



Ixv 







Section 




Section 


Sussex Peerage case 


99, 


104, 147 


Taylor V. Luther 


3»5 


Siittou V. Bishop 




413 


V. Moseley 


564 


V. Kettell 




305 


V. Ross 


268 


V. Sadler 




42 


V. Sayrc 


281 


Suydam v. Joues 




302 


V. Tucker 


118 


Swain v. Lewis 




561 


V. Weld 


284 


Swallow V. Beaumont 


58, 66, 68 


V. Willans 49, 


101, 186 


Sweet V. Lee 




282, 299 


Teal V. Auty 


271 


V. Sherman 




469 


Teall V. Van Wyck 


572 


Sweigart v. Berk 




529 


Teese v. Huntington 


2 


Swift V. Bennett 




116 


Tempest v. Kilner 


267 


V. Dean 




421 


Tenbrook v. Johnson 


118 


V. Eyres 




301 


Tennant v. Hamilton 


449 


v. Stevens 




558 


V. Strachan 


392 


Swing V. Sparks 




118 


Tennessee (Bank of) v. Cowan 115 


Swinnerton v. Marquis 


of Staf- 


Tenny v. Evans 


179 


lord 


21, 


142, 485 


Terrill v. Beecher 


118 


Swii-e V. Bell 




572 


Terrett v. Taylor 23 


, 24, 331 


Sybra v. AVhite 




183 


Terry v. Belcher 


337 


Syers v. Jonas 




293 


Tewicsbury v. Bricknell 


72 


Sykes v. Dun'bar 




252 


Texira v. Evans 


568 a 


Sylvester v. Crapo 




190 


Thallhimer v. BrinekerhofF 


113 


Symmons v. Knox 




60 


Thayer v. Grossman 


385, 401 


Symonds v. Carr 




66 


V. Stearns 


484 


V. Lloyd 




292 


Theakston v. Marson 
Thelluson v. Gosling 
Theobald v. Tregott 


260 a 

491 

416, 417 








Thomas & Henry v. U. States 323 


T. 






Thomas Jefferson (The) 
Thomas v. Ainsley 


6 

96 


Talbot V. Clark 




521 


V. Cummins 


319 


V. Seeman 




487, 491 


V. David 


432, 450 


Tallman ii. Dutcher 




421, 426 


V. Dyott 


118 


Tams V. Bullitt 




. 51 a 


V. Gi'aves 


260 a 


Taney v. Kemp 




452 


V. Hargrave 


841 


Tanner v. Taylor 




437 


V. Jenkins 


139 


Tannett's ease 




65 


V. Ketteriche 


550 


Taplin V. Atty 




560 


V. Xewton 


451 


Tappan v. Abl)ott 




197 a 


V. Robinson 


505 


Tarleton v. Tarleton 




543 


V. Tanner 


506 


Taunton Bank v. Richardson 


349 


V. Thomas 197, 


289, 291 


Tawney v. Crowther 




268 


V. Turuley 


575 


Tayloe v. Biggs 




82, 349 


Thomas's case 


228 


Taylor t\ Bank of Alexandria 4S9 


Thompson v. Armstrong 


389 


V. Bank uf Illinois 


489 


V. Austen 


192, 201 


V. Barclay 


4. 


5, 6, 6 a 


V. Bullock 


144 


Vi Beck 




385 


V. Davenport 


196 


V. Blacklow 




240 


V. Donaldson 


550 


V. Briggs 


278, 


279, 292 


V. Freeman 


102, ;'.4i 


V. Brytlen 




548 


V. Ketchum 


2b 1 


V. Cook 




139 


r. Lockwood 


284 


V. Croker 




196, 207 


V. MOUTOW 


488 a 


V. Diplock 




30 


V. ISIusser 


489 


V. Dundass 




521 


V. Roberts 


531 


V. Foster 




186, 239 


V. Stevens 


120, 152 


V. Henry 




484 


V. Stewart 


5, 514 


In re 




107, 108 


V. Travis 


55S 


V. Johnson 




565 


Thompson's case 


220 


V. Lawson 




432 


Thorndike v. Boston 


108 



Ixvi 



INDEX TO CASES CITED. 





Section 




i 


Section 


Thorndike v. Kicliartls 




301 


Trelawney v. Coleman 




102 


Thorn es v. White 




310 


V. Thomas 




387 


Thornton v. Bhiisilcll 




256 


Tremain v. Barrett 




310 


V. floiU'S 




66 


V. Edwards 




118 


r. Koyal Ex. Ass. 


Co. 


440 


Trevivan v. Lawrence 


23 


, 531 


('. ^\'vkt'S 




69 


Tripp V. Gery 




86 


Thorntoirs case 


220 


222 


Trisehct v. Ilamilton Ins. Co 




463 


Thorpe v. Barber 




357 


Trotter v. Mills 




502 


V. Cooper 




532 


Trowbridge v. Baker 




195 


V. (iisliurne 




577 


Trowell v. Castle 


511 


, 564 


Thron-morton v. Walton 


41, 81 


Trowter's case 




161 


Thurnian v. Cameron 




573 


Truslove v. Burton 




186 


Thurston v. Mastersou 




21 


Trustees, &c, v. Bledsoe 




114 


V. Whitney 




369 


V. Pcaslee 


290 


, 291 


Tibeau v. Tibeau 




5m 


Trustees Ep. Ch. Newbern 






Tickel V. Short 




194 


V. Trustees Newbern Acad 




21 


Tiernan v. Jackson 




172 


Truwhitt v. Lambert 




89 


Tiley v. Cowlino^ 


195 


527 


Tucker v. Barrow 




193 


Tiliihman v. Fisher 




196 


V. Maxwell 


212 


, 305 


Tillotson V. Warner 501 


508 


509 


V. Peaslee 




51 a 


Tillson V. Smith 


296 rt 


V. State 




6 


Tillon V. Clinton, &c. Ins. Cc 


. 


564 


V. Tucker 




75 


Tindall, Jn re 




41 


V. Welsh 




89 


Tinkham v. Arnold 




17 


Tufls V. Haves 




207 


Tinkler v. Walpole 




494 


TuUis V. Kidd 




440 


Tinkler's case 


157 


158 


Tullock V. Dunn 




176 


Titford V. Knott 




581 


Turner v. Austin 




394 


Title V. Grevett 




384 


V. Coe 




421 


Titus V. Ash 


66, 


462 


V. Crisp 




121 


Tison V. Smitli 




G a 


V. Eyles 




56 


Tobin V. Shaw 




558 


V. Lazarus 




356 


Tod V. Earl of Winchelsea 


163, 


272 


V. Pearte 




421 


V. Stafford 




385 


V. Twing 




118 


Tolman v. Emerson 


142, 


144 


V. Waddington 




506 


Tomkies v. Reynolds 




108 


V. Yates 


182 


560 


Tomlinson v. Borst 




118 


Turney v. The State 




434 


Tompkins v. Ashl)y 




551 


Turquand v. Knight 




239 


V. Attor. -General 




484 


Tuttle V. Brown 




113 


V. Curtis 




430 


Tutton V. Drake 




497 


V. Phillips 




207 


Tuzzle V. Barclay 




51 a 


V. Saltmarsh 




108 


Twambly v. Henley 


384 


397 


Tong's case 




233 


Twiss V. Baldwin 


60, 64 


Tooker v. D. of Beaufort 




6 


Tyler v. Carlton 




26 


Toi»ham v. ^McGregor 




437 


V. Ulmer 180, 


394 


539 


Tousley v. Barry 




190 


V. Wilkinson 




17 


Towle V. Blake 




118 


Tyer's case 




65 


Town t;. Needham 




421 








Townley v. Wo(jlley 




118 








Towns 1!. Alfbrd 




435 


U. 






Townsend v. Bush 


379, 


385 








V. Downing 


391, 


395 


Ulen V. Kittredge 




269 


V. Graves 




54 


Ulmer v. Leland 




78 


V. The State 




49 


Underbill v. AVilson 




180 


V. Weld 




281 


Underwood v. Wing 




30 


Tracy v. Peerage 




581 


Union Bank v. Knapp 118, 


168, 


368, 


Trant's case 




IGO 






474 


Travis v. January 




246 


V. Owen 




430 


Treat v. Strieklund 




109 


Unis V. Charlton's Adm'r 




462 


Tregany v. Fletcher 




6 


United States v. Amedy 




489 



INDEX TO CASES CITED. 



Ixvil 



Section 

United States v. Batiste 4<J, 07 

V. I'l'iiner 479 

V. P.iHH'd 2<sO 

V. IJritton Go, >H 

V. I'.uiord 73, 4'J8 

V. Ikinis 5, G 

V. CantriU 300 

V. Castro 142, 143, 485 
V. Chapinau 221 

V. Ciishman oo9 a 

V. Edinu 316 

V. Gibt-rt 84, 233, 495 
V. Gooding 233 

V. Hail- iViicils 241 

V. Hanwav 256 

V. Havwal-d 79, 80 

V. Johns 4, 485, 489 

V. King 5, 6 

V. Leffler 284, 385 

V. Macomb 164, 165 

V. MoNoal 65, 70 

V. Mitchell 479 

V. Moore 311 

V. Moses 250 

V. Murphy 350, 412 

V. Nelson 368 a 

V. Nott 219 

V. Palmer 4 

t'. Perchemau 485 

V. Porter - Go 

V. Keyburn 82, 83, 92 
V. Revnes 6 

V. Sniith 430 

V. Spauldiug 566 

V. Sutter 84 

V. Teschmaker 6 a 

V. Turner 6 

V. Wilson 412 

V. Wood 165, 257, 258 
U. States Bank v. Corcoran 2 

V. Dandridge 21 

V. Dunn 40, 83 

V. Glass Ware 385 
V. Johnson 489 

V. La Vengeance 6 
V. Stearns 416 

Utica (Bk. of) t-. llillard 385, 474, 

559 

V. Mersereau 240, 

243, 422 

V. Smalley 430 

Utica Ins. Co. v. Cadweli 430 



Vail V. Smith 

V. Strong 
Vaillant r. Dodcmead 
Vaisu V. Dclaval 
Valentine v. Piper 
Vallancc v. Dewar 



Section 
501 

197 a 
243, 248 

252 a 
575 
292 



Vacher v. Cocks 
Vail V. Lewis 

V. Nickerson 



108 

60 

371 



Valton V. National Loan, &c. Soc. 322 

Van Burcn v. Cockburn 165 

V. AVclls 51 a 

Vanl)uskirk c. Mullock 489 

Vance v. Reardon 501 

V. Schuyler 573 

VandenheuvcfiJ. U. Ins. Co. 543 

Vandcrwerkcr r. The People 6 

Van Deusen v. Frink 429 

V. Slyck 358 

Vandine v. Burpee 440 

Van Dyke v. Van Buren 46 

Vane's (Sir Henry) case 256 

Vanhorne v. Don-ance 564 

Van Ness v. Packard 2 

Van Nuys v. Terhune 389 

Van Omeron v. Dowick 40, 479 

Vanquelin v. Bonard 546 g 
Van lieinisdvk i-.Mvane 112, 174, 177, 

178 

Van Sandau v. Turner 6 

Van Shaack v. Stailbrd 427 

Van Valkenburg v. Rouk 284 

A"an Vechten v. Greves 173 

Van Wyck v. McLitosh 678 

Vanzant v. Kay 395 
Vass's case 160, 161 a 

Vasse V. Mifflin 559 

Vau V. Corpe 361 

Vaughan v. Fitzgerald 552 

V. Hann 214 

V. Martin 438 

V. AVorrall 421 

Vaughn v. Perrine 458 

Vaux Peerage case (The) 497 

Vcdder v. Wilkins 558 

Venning v. Shuttleworth 399 

Vent V. Pacey 240 a 

Verry v. Watkins 54 

Vicary t'. Moore 303 

Vicary's case 1T4 

Villiel-s V. Villiers 84 
Viual V. Burrill 87, 112, 356 

Vincent v. Cole 88, 304 

Viney v. Bass 52 

Viuniconibe v. Butler 20 a 

Violet V. Patton 268 

Voce i\ Lawrence 322 

A^olant V. Soyer 246 

Vooght V. Winch 531 

Vosburg V. Thayer 118 

Vose r. Handy 3<H 

V. Morton 623, 528 



Ixviii 



INDEX TO CASES CITED. 



Vowels V. Miller 
V. Younsc 



Section 

6U, 72 

103, 105, 334, 342 



W. 

Waddington v. Bristow 278, 578 
V. Cousins 573, 680 
:\Vadley v. Bayliss 203 
Walor V. Ik'mi)kin 1G8 
AVajrcrs i-. Difkey 1G5 
Waggoner i'. Rielnnond 118 
WagstalFr. Wilson 186 
Wain V. Warlters 2G8 
Waite V. ]\Ierrill 427 
Wake V. Hartop 284 a 
V. Lock 396, 421, 426 
AVakefiekl v. Ross 328, 339, 369 
AVakefield^s case 339, 343, 374 
Wakeley v. Hart 358 
Walden v. Canlield ^6 
V. Craig 73 
V. Slierburue 112 
Waldridge v. Kenison 192 
Waldi-on v. Tuttle • 130 
V. Ward 243 
Walker v. Broadstock 109, 189 
V. Countess of Beau- 
champ 131 
V. Dunspaugh 435 
V. Ferrin 427 
V. Giles 409 
V. Hunter 49 
V. Kearney 374 
V. Frcjtection Ins. Co. 440 
V. Sawyer 425 
V. Ste})lienson • 54 
V. Walker 165 
■ v. Welch 66 
V. Wheatley 302 
V. Wildman 237, 240 
V. Wingfield 485 
V. Witter 546 
Walker's case 189 
Wall V. IMcXamara 532 
Wallace v. Cook 484, 493 
V. Rogers 305 a 
V. Small 192 
r. Twvman 420 
Wallisw LitteU 284 « 
v. Murray 559 
AValsinghani (Ld.) v. Good- 

ricke 240 a, 244 

Walter v. BoUman 117 

V. Haynes 40 

Walters v. Mace 64 

V. Rees 317 

V. Short 564 

Walton V. Coulson 21 



Walton «. Green 
V. Shelley 
V. Tomlin 
V. Walton 
Wambough v. Shenk 
AVandless v. Cawthorne 
Ward V. Apprice 

V. Hay don 

V. Howell 

V. Johnson 

V. Lewis 

V. Romfret 

V. Sharp 

V. The State 

V. Wells 

V. Wilkinson 
Warde v. Warde 
Wardell v. Eden 

V. Fennor 
Wardle's case 
Ware v. Brookhouse 



Section 

110, 185, 341 

383, 385, 389 

356 

260 

41 

95, 422 

349 

357 

112 

539 

38 

155 

452 

161 a 

572 

398 

241 

173 

572 

65 

109 



V. Havward Rubber Co. 292 

V. Ware 52, 77, 449, 462 

Waring v. Waring 365 

Warner v. Harder 485 

V. Price 116, 120 

Warren v. Anderson 575 

V. Charlestown 331 

V. Comings 531, 532 

V. Flagg 505 

V. GreenviUe 119, 147, 149, 

150, 154 

V. Lusk 488 a 

V. Kichols 165 

V. Wiivrcn 40 

V. Wheeler 277 

WarrickshaU's case 214, 215, 219, 231 

Warriner v. Giles 484 

^\"arrington v. Early 568 

Warwick v. Bruce 271 

V. Foulkes 53 

Wasliburn v. Cuddiiiy 497 

Washington S.F. Co. v. Sickles 532 

Waterman v. Johnson 288, 301 

Watertown v. Cowen 175 

Watkins v. Holman 479, 480, 482 

V. Morgan 73 

I'. Towers 27 

Watson V. Blaine 26 

V. Brewster 104 

V. England 41 

V. Hay 6 

V. King 41, 186 

V. Lane 207 

V. McLaren 430 

V. Moore 55, 201 

V. Tarjiley 49 

V. Tlu-elkeld 27, 207 

V. Wace 204, 207 



INDEX TO CASES CITED. 



Ixix 



Section 

Watts V. Friend 271 

v. Howard liy 

r. Kill)urii 672 

V. Lawsoii 192 

V. Thorpe 181 

Waugh V. Bussell G9, 567 

Wayman v. llillard 192 

Wavmell v. Head 284, 48« 

Weakly v. Bell 207 

Weall V. King 58, 64 

Weaver v. MeElhenon 6 

Webb V. Alexander 513 

V. Man. & Leeds R.R. Co. 440 

V. Page 310 

V. Smith 179, 248 

V. St. Lawrence 575 

Webber v. Eastern Railroad Co. 540 

Webster r. Clark 118,430 

V. Hodgkius 89, 282 

V. Lee 447, 532 

V. Vickers 385 

V. Webster 115 

V. Woodford 284 

Wedge V. Berkeley 49 

Wedgewood's case 484, 493 

Weed V. Kellogg 180, 322 

Weeks v. Lowerre 163 

V. Sparke 128, 129, 130, 13G, 

137, 138, 145, 146 

Weems v. Disney 145 

Weguelin v. Weguelin 321 

WeidmaniJ. Kohr_ 109,189 

Weidner v. Schweigart 38 

Weigly V. Weir 26 

Welborn's case 158, 160 

Welch V. Barrett 115, 116, 147 

I'. ]Mandeville 173 

V. Seaborn 38 

Weld V. Kichols 539 

Welden v. Buck 423 

Welford I'. Beezely 268 

Welland Canal Co. v. Hathaway 86, 

96 a, 203, 204 

Wellerr. Gov. Found. IIosp. 331,333 

Wells V. Conipton 195, 301, 527 a, 539 

V. Fisher 339 

V. Fletcher 207, 339 

V. Jesus College 138 

V. Lane 333 

V. Porter 293 

I". Stevens 513 

V. Tucker 338 

Welsh V. Rogers 323 

Wendell i'. George 385 

Wentworth v. Lloyd 240 

Wertz V. May 469 

West V. Davis 97 

V. RandaU 392 

V. State 577 



SeoHon 

West V, Steward 56« a 

West Boylston v. Sterling 323 

Westbury v. Abcrdein 441 

West Cambridge v. Lexington 109 

Weston V. Barker 173 

V. Chamberlain 281 

V. Emes 281 

V. Penniman 494 

Wetmore v. INIell 108 

Whateley v. Menheim 531 

Whatley'i\ Fearnley 592 

Wheater's case 226 

Wheatley i\ Williams 245 

Wheelden v. Wilson 53 

Wheeler v. Aldcrson 101 

V. Ilambright 180 

V. Hatch 437 

V. Hill 237 

V. McCorrister 189 

V. Moody 6 

t\ Webster 488 a 

Wheeling's case 217 

Wheelock v. Doolittle 113 

Whclpdale's case 284 

Whipple V. Foot 271 

V. Walpole 440 

Wliitaker v. Bramson 70 

V. Salisbury 572 

V. Smith 58 

Whitamore v. Waterhouse 394, 427 

Whitbeck v. Whitbeck 26 

Whitcher v. Shattuck 101 

Whitcomb v. Whiting 112, 174 

White V. Ballou 440 a 

V. Coatsworth 532 

■ V. Crew 260 

V. Everest 452 

V. Foljambe 46 

V. Hale 11^, 174 

V. Hawn 371 

V. Hill 358 

V. Judd 310 

V. Lisle 130, 137, 138 

V. Parkin 303 

V. Philbrick 533 

V. Proctor 269 

V. Saver 294 

V. Trust. Brit. Museum 272 

V. Wilson 5S, 68, 81, 281 

White's case 65, 217, 328, 365 

Whitehead v. Scott 89, 101 

V. Tattersall 184 

'WTiitehouse v. Atkinson 394, 420 

V. Bickford 145, 485, 570 

Whitehouse's case 343 

Whitelocke v. Baker 103, 104, 131 

V. Musgrove 575 

^Vhitesell v. Crane 348 

Whitfield v. Colliugwood 564 



Ixx 



INDEX TO CASES CITED. 



Whitford r. Tutin 
Wliitluck c. Ramsay 
Wliitiiiar.sli V. Aiiyle 

t\ ^^'alke^• 
"Wliitmor r. Frve 



Section 

87 

69 

440 

271 

5(J8 



A\'hitmore c. S. Boston Iron Co. 292 

V. Wilks 347 

AVhiteside's appeal 41 

Wbitney v. Higelow 121 

V. Ferris 177 

V. lleywood 323 

Whitteniorc v. Brooks 572 

AVhittier c. Smith 2U7 

Whittuck V. Waters 493 

WliitwcU V. Scheer 73 

V. Wyer ^ 201 

AVhyman v. Garth ' 5G9 

AViekens v. Goatley 6 

Wickes V. Caulk 564 

Wieks V. Smallbroke 375 

AViggin V. Lowell 333 

294 

V. Steers 2.S4 

Wike V. Lightner 4iJl 

WikolF's appeal 504 

Wilbur V. Selden 115, 147, 163, 165 

V. Striekland 232 

V. Wilbur 671 

Wilcocks t: Phillips 488 

Wileox V. Smith 83 

Wilde V. Aruisby 564 

Wiley V. Beau 572 

I". Moor 568 a 

Wilkinson v. Johnson dW 

V. Lutwielgc 196 

V. Seott 26,-3(t5 

V. Yale 323 

WlUard v. Harvey , 508 

. V. Wiekhaui 427 

Williani.s v. Ann-oyd 541 

V. Balilwin 254 

v. Bartholomew 207 

V. Bridges 180, 181 

r. Bryant 69 

V. Byrne 49 

V. Cheney 171, 195, 552 

V. Calleuder 55 

r. E. India Co. 35, 40, 80 

v. KyUm 20 

v. (ieaves 115, 150, 151 

V. (iilman 2iS8 

v. (ioodwin 430 

V. Hing. etc. Turnp. Co. 78 

r. Innes 27, 182 

r. Johnson 312 

V. Mundie 240 

V. Ogle (jo 

V. Stevens 392 

V. Thomas 74, 192 



Section 

Williams v. Van Tuyl 568 

V. Walbridge 385 

V. Walker 443 

V. Wetherbee 485 

V. Wilkes 502 

V. AViUard 165 

V. Williams 45, 200 

Williams's case 311 

Williamson v. Allison 51, GO, 63 

V. Henley 205 

v. Scott 212 

Willingliam v. iMatthews 316 

AVilliugs V. Consequa 354 

Willis V. Barnard 102 

V. Jernegan 197 

V. McDole 558 

V. Quimby 104 

Willis's case 255 

AVilliston v. Smith 55 

Willoughbv V. Willoughby 4, 5 

Wills V. Ju'dd 354 

Wilmer v. Israel 118 

Wilson c. Allen 46 

V. Betts 144 

V. Boerem 156 

V. Bowie 89 

V. Calvei-t 201 

V. Carnegie 195 

V. Conine 511 

V. Gary 409 

V. Goodin 118 

V. Hodges 41, 81 

V. McCullough 434 a 

V. Niles 548 



V. Rastall 
V. Rogers 
V. Troup 
V. Turner 
V. Wilson 
Wilson's case 



237, 239, 243, 247 

473 

237, 241 

27 

118 

225 



Wilton V. Girdlestone 5^1 

V. Webster 102 

Wiltzie V. Adamson 197, 198 

Winaus v. Dunham 511 

AViuch V. Keeley 172 

AVing V. Angrave 30 

AVinn v. Cluunberlain 293 

V. Patterson 21, 142 

Wiunipiseogee Lake Co. v. Young 6 

Winslup V. Bank of U. S. 148, 167 

Winslow V. Kimball 341 

AViusmore v. Greenbank 183 

Winsor v. Uillaway 118 

V. Pratt 273 

AVinter v. liutt 467 

V. Wroot 102 

Wishart v. Downey 669 

Wishaw V. Barnes 408 

AVithee v. Rowe 681 



INDEX TO CASES CITED. 



Ixxi 





Section 






i 


Section 


Withers v. Atkinson 


508 


Wright V. Hicks 






462 


V. Gillcspy 


5G3 


V. Howard 






17 


WithncU r. Gartliani 


138, 2<J3 


V. Littler 






156 


Witiner i\ Sclihitter 


539 


V. Netherwood 






30 


Witnash i\ (U^orge 


116, loO, 187 


V. Phillips 






6 


Wogan V. Small 


440 


V. Sarniuila 






30 


Wolfott V. Hall 


55 


V. Sharp 






118 


Wolf r. Washburn 


498, 513 


V. Tatham 82, 


101, 


108, 


163, 


V. Wveth 


165 




164 


535 


, 553 


Wolley V. iirownliill 


347 


V. Willcox 




469 a 


Wood 0. Braddifk 


112, 177 


V. Wright 






272 


V. Brayuard 


392 


Wyatt V. Gore 






251 


V. Cooper 


437 


V. Hodson 






174 


V. Davis 


524 


V. Lord Hertford 






2(17 


V. Drury 


572 


Wyer v. Dorchester, &c 


. Bank 


81 a 


V. Fitz 


6 


Wylde's case 






288 


V. Hickok 


260 a 


Wyndiiara v. Chetwynd 






419 


V. Jackson 


529, 531 


Wynne v. Tyrwhitt 


150 


154 


, 570 


V. Le Baron 


532 










V. Mackinson 


445 










V. Mann 


461 


Y. 








V. Neale 


317 










V. Prinple 


76 


Yabsley v. Doble 






180 


V. Watkinson 


547 


Yandes v. Lefavour 






112 


V. Whiting 


305 


Yarborough v. jNIoss 






201 


Woodbeck v. Keller 


255, 257 


Yardley v. Arnold 






421 


Woodbridge v. Spooner 


281 


Yarley v. Turnock 






72 


Woodcock's case 


158 


Yates's case 






257 


Woodcraft v. Kinaston 


502 


Yates V. Pyni 






292 


Woodford v. Ashley 


70 


Yeates v. Pim 






294 


Woodman v. Coolbi-oth 


571 


Yeatman, Ex x>arte 






238 


V. Lane 


301 


V. Dempsey 






319 


Woodruff r. Westcott 


190, 353 


V. Hart 






51 a 


i\ Taylor 


546 e 


Yeaton v. Fry 




5 


414 


V. Woodruff 


527 a 


York V. Blott 






399 


Woods V. Banks 


113, 508 


V. Gribble 






402 


V. Sawin 


287 


V. Pease 






74 


V. Woods 


41, 240 a 


York, &c. R.R. Co. v. Winans 


6 


Woodsides v. The State 


156 


Yoter V. Sanno 






251 


Woodstock (Bank of ) « 


Clark 108 


Young V. Bairner 




76 


385 


Woodward v. Cotton 


481 


V. Black 






532 


V. Larking 


211 


V. Chandler* 






506 


V. Newhall 


197 a, 356 


V. Dearborn 






165 


r. Picket 


268 


V. Honner 






580 


Woolam t'. Hearn 


276 


V. Kic'hards 






341 


Woolway v. Kowe 


190, 191 


V. Smith 






180 


Wooster v. Butler 


145, 287 


v. The Bank of Alexan- 




V. Lyons 


96 


dria 


480, 


489, 


490 


Worcester Co. Bank v. Dorches- 


V. Wright 




27, 


186 


ter, &c. Bank 


81 a 


Youqua v. Nixon 






304 


Worrall v. Jones 330, 


353, 354, 356 


Yrissarri v. Clement 






4 


Worthington i\ Hyler 


300, 301 










Wright v. Barnard 


5 










V. Beckett 


444, 467 


Z. 








V. Caldwell 


348 










V. Court 


111 


Zollicoffer v. Turney 






452 


V. Crookes 


281, 304 


Zouch V. Clay 




567, 


568 


V. Delafield 


488 a 











This case is reported in 13 B. Mun. 252, and not as cited in note to section 506. 



PAET I. 



XATUEE A^B PRINCIPLES 



EYIDEXCE. 



TREATISE 



THE LAW OF EVIDENCE. 



PART I. 

OF THE NATURE AND PRINCIPLES OF EVIDENCE. 



CHAPTER I. 

PEELIMINAEY OBSERVATIONS. 

[*§1. Definitions: evidence; proof; demonstration; moral evidence. 

2. Competent evidence ; satisfactory evidence ; cumulative evidence. 

3. Nature and object of evidence; means and instruments of proof] 

§ 1. The word Evidence, in legal acceptation, includes all the 
means by which any alleged matter of fact, the truth of which is 
submitted to investigation, is established or disproved.^ This 
term, and the word proo/, are often used indifferently, as synony- 
mous with each other ; but the latter is applied by the most accu- 
rate logicians, to the effect of evidence, and not to the medium by 
which truth is established.^ None but mathematical truth is 
susceptible of that high degree of evidence, called demonstration^ 
which excludes all possibility of error, and" wliich, therefore, may 
reasonably be required in support of every mathematical deduc- 
tion. Matters of fact are proved by moral evidence alone ; by which 
is meant, not only that kind of e\ddence which is employed on 
subjects connected with moral conduct, but all the e^-idence which 

1 See Wills on Circumstantial Evid. 2; - Whately's Logic, b. iv. ch. iii. § 1. 
1 Stark. Evid. 10 ; 1 Pliil. Evid. 1. 

[3] 



4 LAW OF EVIDENCE. [PART I. 

is not obtained cither from intuition, or from demonstration. In 
the ordinary affairs of life, we do not require demonstrative 
evidence, because it is not consistent with the nature of the sub- 
ject, and to insist upon it would be unreasonable and absurd. 
The most that can be affirmed of such things is, that there is no 
reasonable doubt concerning them.^ The true question, therefore, 
in trials of fact, is not whether it is possible that the testimony 
may be false, but whether there is sufficient prohahility of its truth ; 
that is, whether the facts are shown by competent and satisfactory 
evidence. Things established by competent and satisfactory evi- 
dence are said to be proved. 

§ 2. By competent evidence is meant that which the very nature 
of the thing to be proved requires, as the fit and appropriate proof 
in the particular case, such as the production of a writing, where 
its contents are the subject of inquiry. By satisfactory evidence, 
which is sometimes called sufficient evidence, is intended that amount 
of proof, which ordinarily satisfies an unprejudiced mind, beyond 
reasonable doubt. The circumstances which will amount to this 
degTce of proof can never be previously defined ; the only legal 
test of which they are susceptible is their sufficiency to satisfy the 
mind and conscience of a common man ; and so to convince him, 
that he would venture to act upon that conviction, in matters of 
the highest concern and importance to his own interest.^ Ques- 
tions respecting the competency and admissibility of evidence, are 
entirely distinct from those which respect its sufficiency or effect ; 
the former being exclusively within the province of the court ; the 
latter belonging exclusively to the jury.^ Cmmdative evidence 
is evidence of the same kind, to the same point. Thus, if a fact is 
attempted to be proved by the verbal admission of the party, evi- 
dence of another verbal admission of the same fact is cumulative ; 
but evidence of other circumstances, tending to establish the fact, 
is not.* 

1 See Gambler's Guide to the Study they also believe them. Their belief is 

of Moral Evidence, p. 121. Even of afterwards confirmed by experience; for 

mathematical truths, this writer justly whenever there is occasion to apiJy them, 

remarks, that, thou,u;h capable of demon- they are found to lead to just conclusions, 

stration, they are admitted by most men Id. lOG. 
solely on the moral evidence of general ^ 1 Stark. Evid. 514. 
notoriety. For most men are neither able ^ Columbian Ins. Go. v. Lawrence, 2 

themsL'lVes to understand mathematical Pet. 25, 44 ; Bank United States v. Cor- 

deraonstrations, nor have they, ordinarily, coran, Id. 121, 133 ; Van Ness v. Tacard, 

for their trutli, the testimony of tiiose Id. 137, 149. 

who do miderstand them ; but finding * Tarker ;;. Hardy, 24 Pick. 246, 248. 
them generaUy believed in the world, 



CHAP. I.] PRELIMINARY OBSERVATIONS. 5 

§ 3. This branch of the law may be considered under three gen- 
eral heads, namely: First^ The Nature and Principles of Evi- 
dence ; — Secondly, The Object of Evidence, and the Rules which 
govern in the production of testimony ; — And Tliirdly, The Means 
of Proof, or the Instruments, by which facts are established. 
This order will be followed in farther treating this subject. But 
before we proceed, it will be proper first to consider what things 
courts will, of themselves, take notice of, without proof. 

1* 






LAW OP EVIDENCE. [PART I. 



CHAPTER 11. 

OP THINGS JUDICIALLY TAKEN NOTICE OP, WITHOUT PROOP. 

[ * § 4. Courts take judicial notice of the national seal of other nations. 

5. So also of the law of nations, courts of admkalty, notarial seals, the course 

of nature, the calendar, &c. &c. 

6. Of the territorial divisions of the country, its coiirts, general laws, officers, 

and all things universally known, &c. 
6a. The subject further illustrated with reference to more recent cases.] 

§ 4. All civilized nations,, being alike members of the great 
family of sovereignties, may well be supposed to recognize each 
other's existence, and general public and external relations. The 
usual and appropriate symbols of nationality and sovereignty are 
the national flag and seal. Every sovereign, therefore, recognizes, 
and, of course, the public tribunals and functionaries of every 
nation take notice of the existence and titles of all the other sov- 
ereign powers in the civilized world, their respective flags, and 
their seals of state. PubKc acts, decrees, and judgments, exempli- 
fied under this seal, are received as true and genuine, it being the 
highest evidence of their character .^ If, however, upon a civil war 
in any country, one part of the nation shall separate itself from the 
other, and establish for itself an independent government, the newly- 
formed nation cannot without proof be recognized as such, by the 
judicial tribunals of other nations, until it has been acknowledged 
by the sovereign power under whicli those tribunals are consti- 
tuted ; 2 the first act of recognition lielonging to the executive func- 
tion, [ * and courts will take judicial notice, whether or no, such 
governments have been so acknowledged] .^ But though the seal of 
the new power, prior to such acknowledgment, is not permitted 

1 Church V. Hubbart, 2 Cranch, 187, the courts, must be a common-law seal, 

238 ; Griswold v. Pitcairn, 2 Conn. 85, that is, an impression upon wax. Coit v. 

90: United States v. Johns, 4 Dall. 416; Milliken, 1 Denio, R. 376. 
The Santissima Trinidad, 7 Wheat. 273, - City of Berne v. Bank of England, 9 

335; Anon. 9 Mod. 66; Lincoln v. Bat- Ves. 347; United States v. Palmer, 3 

telle, 6 Wend. 475. It is held in New Wheat. 610, 634. 
York that such seal, to be recognized in '^ [* Taylor v. Barclay, 2 Sim. 213.] 



CHAP. II.] THINGS JUDICIALLY TAKEN NOTICE OF. 7 

to prove itself, yet it may be proved as a fact Ijy other competent 
testimony.^ .xind the existence of such unacknowledged government 
or State may, in like manner, be proved ; the rule being, that if a 
body of persons assemljle together to protect themselves, and suj)- 
port their own independence, make laws, and have courts of justice, 
this is evidence of their being a state.^ 

§ 5. In like manner, the Law of Nations, and the general cus- 
toms and usages of merchants, as well as the public statutes and 
general laws and customs of their own country, as well ecclesiasti- 
cal as civil, are recognized, without proof, by the courts of all civil- 
ized nations.^ The seal of a notary-public is also judicially taken 
notice of by thti courts, he being an officer recognized by the whole 
commercial world.* Foreign Admiralty and Maritime Courts, too, 
being the courts of the civilized world, and of coordinate jurisdic- 
tion, are judicially recognized everywhere ; and their seals need 
not be proved.^ Neither is it necessary to prove things which 
must have happened according to the ordinary course of nature ; '^ 
nor to prove the course of time, or of the heavenly bodies ; nor 
the ordinary public fasts and festivals ; nor the coincidence of days 
of the week with days of the month ; ^ nor the meaning of words 

1 United States v. Palmer, 3 Wheat, of land is not, as a general rule, such a 
610, 634; The Estrella, 4 Wheat. 298. pubUc statute as the courts are bound to 
What is sufficient evidence to authenti- take notice of and expound, without re- 
cate, in the courts of this country, the quiring its production. xYllegheny v. Nel- 
sentence or decree of the court of a for- son, 25 Penn. State R. 332.] 
eign gorernment, after the destruction of * Anon. 12 Mod. 845 ; Wright v. Bar- 
such government, and while the country is nard, 2 Esp. 700 ; Yeaton v. Fry, 5 Cranch, 
possessed by the conqueror, remams un- 535; Brown v. Pliiladelpliia Bank, 6 S. & 
decided. Hatfield v. Jameson, 2 Munf. R. 484; Chanoine v. Fowler, 3 Wend. 
53 70 71. 173, 178 ; Bayley on Bills, 515 (2d Am. 
'2 Yrissarri v. Clement, 2 C. & P. 223, ed. by PhilUps & Sewall) ; Hutcheon v. 
per Best, C. J. And see 1 Kent, Comm. Mannington, 6 Ves. 823 ; Porter v. Jud- 
189 ; Grotius, De Jur. Bel. b. 3, c. 3, § 1. son, 1 Gray, 175. 

8 Ereskine v. Murray, 2 Ld. Eaym. ^ Croudson r. Leonard, 4 Cranch, 435 ; 
1542; Heineccius ad Pand. 1. 22, tit. 3, Rose v. Himely, Id. 292; Church v. Hub- 
sec 119 • 1 Bl. Comm. 75, 76, 85 ; Edie v. bart, 2 Cranch, 187 ; Thompson v. Stew- 
East India Co. 2 Biu-r. 1226, 1228 ; Chand- art, 3 Conn. 171, 181 ; Green v. Waller, 2 
ler V. Grieves, 2 H. Bl. 606, n. ; Rex v. Ld. Raym. 891, 893; Anon. 9 Mod. 66; 
Sutton, 4 M. & S. 542; 6 Vin. Abr. tit. Story on tlie Conflict of Laws, § 643; 
Court, D; 1 Rol. Abr. 520. D. Judges Hughes v. Cornelius, as stated by Lord 
will also take notice of the usual practice Holt, in 2 Ld. Eaym. 893. And see T. 
and course of conveyancing. 3 Sugd. Raym. 473 ; 2 Show. 232, s. c. 
Vend. & Pur. 28; Willoughby v. Wil- « Rex v. Luffe, 8 East, 202; Fay v. 
louo'hby, 1 T. R. 772, per Ld. Hardwicke ; Prentice, 9 Jur. 876. 
Doe V. Hilder, 2 B. & Aid. 793 ; Rowe v. ' 6 Vin. Abr. 491, pi. 6, 7, 8; Hoyle v. 
Grenfel, Ky. & Mo. 898, per xVbbott, C. J. CornwaUis, 1 Stra. 387 ; Page v. Faucet, 
So, of the general Hen of bankers on se- Cro. El. 227 ; Harvey v. Broad, 2 Salk. 
curities of theu- customers, deposited with 62G ; Hanson v. Shackelton, 4 Dowl. 48,; 
them. Brandao r. Barnett, 3 M. G. & Sc. Dawkins v. Smithwick, 4 Flor. R. 158 ; 
519 [See also infra, § 489, 490. A spe- i Sasscer v. Farmers' Bank, 4 Md. 409 ;] 
cial act for the survey of a particidar tract [ * Sprowl v. Lawrence, 33 Ala. 674.J 



8 LAW OF EVIDENCE. [PART I. 

in the vernacular language ; ^ nor the legal -weights and measures ; ^ 
nor any matters of pul^lic history, affecting the whole people ; ^ 
nor public matters, affecting the government of the country.* 
[ * Nor will it be required to give evidence of the course of the 
seasons, and the date of the ordinary maturity of particular crops.*^ 
But the courts cannot take judicial notice of the meaning of catch- 
words, such as " the cost book principle ; " ^ " Black Republicans " 
or " supporters of the Helper book ; " ^ nor of the import of abbre- 
viations, as " St. Louis, Mo. ; " and others more difficult of interpre- 
tation.^ And it was held, in a recent case before the New York 
Court of Appeals,^ that in a trial by jury, it was proper to give 
evidence of historical facts.] 

§ 6. Courts also take notice of the territorial extent of the 
jurisdiction and sovereignty, exercised de facto by their own 
government ; and of the local divisions of their country, as into 
states, provinces, counties, cities, towns, local parishes, or the like, 
so far as political government is concerned or affected ; and of the 
relative positions of such local divisions ; but not of their precise 
boundaries, farther than they may be described in public statutes.^*^ 
[* But not whether the jurisdiction de facto be rightfully exercised."] 

1 Clementi v. Golcling, 2 Campb. 25 ; tice tliat the knowledge of that fable of 
Commonwealth v. Kneeland, 20 Pick, riianlrus generally prevailed in society. 
239. [Courts will take judicial notice of Hoare v. Silverlock, 12 Jur. 695 ; 12 Ad. 
the customary abbreviations of Christian & El. 624, n. s. 

names. Stephen v. State, 11 Geo. 225; ^ [* Floyd zj. Ricks, 14 Ark. 286. 
Weaver v. McElhenon, 13 Miss. 89.] » Bodmin Mnes Co. in re, 23 Beav. 

2 Hockin v. Cooke, 4 T. R. 3U. The 370. 

current coins of tlie country, whether es- "^ Baltimore v. The State, 15 Md. Rep. 

tablished by statute or existing imme- 376. 

morially, will be judicially recognized. ^ EUis v. Park, 8 Texas, 205. 
[* Daily v. State, 10 Ind. 536.] The courts » Mclvinnon v. Bhss, 21 N. Y. App. 

will also take notice of the character of 206.] 

tiie existing circulating medium, and of tlie ^'^ Deybel's case, 4 B. & Aid. 242; 2 
popular language in reference to it ; Lamp- Inst. 557 ; Fazakerley v. Wiltshire, 1 
ton V. Haggard, 3 Monr. 149 ; Jones v. Stra. 469 ; Humphreys v. Budd, 9 Dowl. 
Overstreet, 4 Monr. 547; [United States 1000; Ross v. Reddick, 1 Scam. 73; 
V. Burns, 5-]\IcLean, 23 ; United States v. Goodwin v. Appleton, 9 Shepl. 453; Van- 
King, lb. 208;] but not of the current derwerker v. The People, 5 Wend. 530; 
value of the notes of a bank at any par- [ * State v. Powers, 25 Conn. 48 ;] [Ham v. 
ticular time. Feemster v. Ringo, 5 Monr. Ham, 39 Maine, 2G3 ; lb. 291 ; Wright v. 
336. Phillips, 2 Greene (Iowa), 191 ; Robertson 

8 Bank of Augusta v. Earle, 13 Pet. v. Teal, 9 Texas, 344 ; Wheeler v. Moody, 

519, 590; 1 Stark. Ev. 211 (6th Am. ed.). lb. 372; Ross v. Austill, 2 Cal. 183 ; Kid- 

[See also Douglass v. Branch Bank, 19 der v. Blaisdell, 45 Maine, 461 ; Winnipis- 

Ala. 659.] eogee Lake Co. v. Young, 40 N. II. 420.] 

* Taylor v. Barclay, 2 Sim. 221. But courts do not take notic>e that particu- 

Where a libel was charged, in stating lar places are or not in particular counties, 

that the plaintiff's friends, in the advo- Bruce v. Thompson, 2 Ad. & El. 789, n. s. 

cacy of her claims, "had realized the fa- [*But see Cooke v Wilson, 1 C. B. n. s., 

ble of the Frozen Snake," it was held 153.1 
that the court might judicially take no- " [ * State v. Dunwell, 3 R. I. 127.] 



CHAP. II.] THINGS JUDICIALLY TAKEN NOTICE OF. 



9 



They will also judicially recognize the political constitution or 
frame of their own government; its essential political agents 
or public officers, sharing in its regular administration ; and its 
essential and regular political operations, powers, and action. 
Thus, notice is taken, by all tribunals, of the accession of the 
Chief Executive of the nation or state, under whose authority 
they act ; his powers and })rivileges ; ^ the genuineness of his sig- 
nature,^ the heads of departments, and principal officers of state, 
and the public seals ; ^ the election or resignation of a senator of 
the United States ; the appointment of a cabinet or foreign 
minister ; * marshals and sheriffs,'' and the genuineness of their 
signatures,^ but not their deputies ; courts of general jurisdiction, 
their judges,'^ their seals, their rules and maxims in the adminis- 
tration of justice, and course of proceeding ; ^ also, of public 
proclamations of war and peace,^ and of days of special public 
fasts and thanksgivings ; stated days of general political elections ; 
the sittings of the legislature, and its established and usual course 



1 Elderton's case, 2 Ld. Raj-m. 980, 
per Holt, C. J. ; [ * Hizer v. State, 12 Ind. 
330 ; Lindsey v. Attorney-ceneral, 33 Miss. 
508; State v. Williams, 5 Wis. 308.] 

2 Jones V. Gale's Ex'r, 4 Martin, 635. 
And see Rex v. MiUer, 2 W. Bl. 797 ; 1 
Leach, Cr. Cas. 74; Rex v. Gully, 1 
Leach, Cr. Cas. 98. 

3 Rex V. Jones, 2 Campb. 121 ; Bennett 
V. The State of Tennessee, Mart. «&. Yerg. 
133 ; Ld. MelvUle's case, 29 How. St. Tr. 
707. And see as to seals, infra, § 503, and 
cases there cited. [The courts of the 
United States will take notice of the per- 
sons who from time to time preside over 
the patent-office, whether permanently or 
transiently. York, &c.. Railroad Co. v. Wi- 
nans, 17 How. U. S. 30.] 

* Walden v. Canfield, 2 Rob. Louis. R. 
466. 

5 Holman v. Burrow, 2 Ld. Raym. 
794; [Ingraham v. State, 27 Ala. 17 ; Ma- 
jor V. State, 2 Sneed (Teun.), 11. The 
Court of Common Pleas will take judicial 
notice that the Queen's prison is in Eng- 
land. Wickens v. Goatley, 8 Eng. Law & 
Eq. 420, 422.] 

6 Alcock V. Whatmore, 8 Dowl. P. C. 
615. 

7 Watson V. Hay, 3 Kerr, 559. [The 
Supreme Court (of Ohio) will take judi- 
cial notice of the time fixed for the com- 
mencement of its sessions, but not of the 
duration of any particular session. Gilli- 
land V. Sellers, 2 Ohio (n.s.), 223. See 
also Lindsay v. Williams, 17 Ala. 229.] 



s Tregany v. Fletcher, 1 Ld. Ravm. 
154; Lane's case, 2 Co. 16; 3 Com. Dig. 
336, Courts, Q. ; Newell v. Newton, 10 
Pick. 470; Elliott v. Evans, 3 B. & P. 183, 
184, per Ld. Alvanley, C. J. ; Maberley v. 
Robins, 5 Taunt. 625 ; Tooker r. Duke of 
Beaufort, Sayer, 296 ; [ * Tucker v. State, 
11 Md. 322.] Whether Superior Courts are 
bound to take notice who are Justices of 
the inferior tribunals, is not clearlj' settled. 
In Skipp V. Hook, 2 Stra. 1080, it was ob- 
jected that they were not; but whether 
the case was decided on that, or on the 
other exception taken, does not appear. 
Andrews, 74, reports the same case, "ex 
relatione alteriiis," and equally doubtful. 
And see Van Sandau v. Turner, 6 Ad. & 
El. 773, 786, per Ld. Denman. The 
weight of American authorities seems 
rather on the affirmative side of the ques- 
tion. Hawks V. Kennebec, 7 Mass. 461 ; 
Riplcj' V. Warren, 2 Pick. 592; Despau v. 
Swindler, 3 Martin, n.s. 705; FoUain v, 
Lefevre, 3 Rob. Louis. R. 13. In Louis- 
iana the courts take notice of the signa- 
tures of executive and judicial officers to 
all official acts. Jones v. Gale's Ex'r, 4 
Martin, 635; Wood v. Fitz, 10 Martin, 
196. [Courts will also take notice of the 
times and places of holding their sessions. 
Kidder i\ Blaisdell, 45 Maine, 461.] 

^ Dolder v. Ld. Huntingfield, 11 Ves. 
292 ; Rex v. De Bercnger, 3 M. & S. 67 ; 
Taylor r. Barclay, 2 Sim. 213. 



10 LAW OF EVIDENCE. [PART I. 

of proceeding ; the privileges of its members, but not the transac- 
tions on its journals.^ Tlie courts of the United States, moreover, 
take judicial notice of the ports and waters of the United States 
in which the tide ebbs and flows ; of the boundaries of the several 
states and judicial districts ; ^ and, in an especial manner, of all 
the laws and jurisprudence of the several states in which they 
exercise an original or an appellate jurisdiction. The judges of 
the Supreme Court of the United States are, on this account, bound 
to take judicial notice of the laws and jurisprudence of all the 
states and territories.^ A Court of Errors will also take notice of 
the nature and extent of the jurisdiction of the inferior court 
whose judgment it revises.* In fine, courts will generally take 
notice of whatever ought to be generally known within the limits 
of their jurisdiction. In all these, and the like cases, where the 
memory of the judge is at fault, he resorts to such documents of 
reference as may be at hand, and he may .deem worthy of confi- 
dence.^ 

[ * § 6a. There is not an entire consistency, in principle, in the 
decisions in the several states, upon this question. Thus it has 
been held courts will take notice of the usual route and course of 
travel between different points within the state, in order to deter- 
mine the reasonableness of notice to take depositions ; ^ but that 
they will not take notice of the quantity of land contained within 
given courses and distances.'' But in fact the latter is a matter of 
mere computation, and no more requires proof than any other 



^ Lake v. King, 1 Saund. 131 ; Birt v. 5 McLean, 23 ; United States v. Kins;, lb. 

Kothwell, 1 Ld. l{aym. 210, 343; Rex v. 208. Tiiey also take judicial notice of 

Wilde, 1 Lev. 29(3; 1 Doug. 97, n. 41; treaties between th« United States and 

Rex V. Arundel, Hob. 109, 110, 111; Rex foreign governments; and of the public 

V. KnoUys, 1 Ld. Rayra. 10, 15; Stock- acts and proclamations of those govern- 

dale V. Hansard, 7 C. & P. 731 ; 9 Ad. & ments and their publicly authorized agents 

El. 1; 11 Ad. & El. 253; Sheriff of Mid- in carrying tliose treaties into effect, 

dlesex's case, Jd. 273 ; Cassidy v. Stewart, United States v. Reynes, 9 How. U. S. 

2 M. & G. 437. 127 ; and of the Spanish L,aws which pre- 

2 Story on Eq. Plead., § 24, cites United vailed in Louisiana, before its cession to 

States V. La Vengeance, 3 Dall. 297 ; The the United States. United States v. Tur- 

ApoUon, 9 Wheat. 374; The Thoma.s Jef- ner, 11 lb. G63.] 

ferson, 10 Wiieat. 428 ; Peyroux v. How- » Ibid. ; Owings v. Hull, 9 Pet. 607, 

ard, 7 Pet. 312. They will also recognize 624, 625 ; Jasper v. Porter, 2 McLean, 579; 

the usual course of the great inland com- [Miller v. McQuerry, 5 McLean, 469.] 

merce, by which the products of agricul- * Cliitty v. Dendy, 3 Ad. & El. 319. 

ture in the valley of the Mississippi find [See March v. Coramonwealtli, 12 B. Mon. 

their way to market. Gibson v. Stevens, 25.1 

8 How. S. C. R. 384; [Lathrop v. Stew- 5 Qresley on Evid. 295. 

art, 5 McLean, 1()7. They will take notice " [ * Hipes v. Cochran, 13 Ind. 175. 

without proof of tlie legal coins of the ^ Tison v. Smith, 8 Texas, 147.] 
United States. United States v. Burns, 



CHAP. II.] THINGS JUDICIALLY TAKEN NOTICE OP. 11 

proposition based upon tlie fundamental rules of arithmetic ; and 
the former is a thing liable to vary with every change of the time- 
tables, upon a railway. It is most unquestionable, that courts 
will take notice of what is within the common experience or 
knowledge of all men ; as the length of time ordinarily required 
to cross the Atlantic by steam,i or the nature of lotteries and the 
manner in which they are conducted.^ And it is no objection that 
the court may require instruction upon the point, themselves. 
They will make inquiries, at the proper place for acquiring infor- 
mation. For this purpose in one case ^ the Vice-Chancellor made 
inquiries at the Foreign Office, whether the Federal Republic of 
Central America had been recognized by the British Government. 
And Lord Hardwicke inquired of an eminent conveyancer as to 
the existence of a rule of practice in that department of the 
profession.^ And the United States Supreme Court resorted to 
the archives and public record-books of the United States to inform 
themselves of particular facts material to be known to the proper 
understanding of a cause before it.] ^ 

1 [ * Openheim v. Leo Wolf, 3 Sandf. * WHIoughby v. WUloughby, 1 T. R. 
Ch. 571. 772. 

2 BouUemet v. State, 28 Ala. 83. ^ Romero v. The United States, 1 Wal- 

3 Taylor v. Barclay, 2 Sim. 22L lace, U. S. 721 ; Nelson, J., in United 

States V. Teschmaker, 22 How. U. S. 405.] 



# 



12 LAW OF EVIDENCE. [PAET I. 



k 



CHAPTER III. 

OF THE GROUNDS OF BELIEF. 

[ * § 7. Our experience forms the basis of our belief in human testimony. 

8. But we also derive great aid from the experience of others. 

9. The belief in Imman testimony, a fundamental principle of our moral nature. 
10. This behef is strengthened by many corroborative circumstances. 

IL The probability of an hypothesis is determined by experience and reasoning 
combined. 

12. Extensive induction tests the probability of a narrative of events, with sur- 

prising certainty. 

13. Distinction between direct and circumstantial evidence. 

13a. Consideration of the degrees of certainty produced by circumstantial evidence.] 

§ 7. We proceed now to a brief consideration of the G-eneral 
Nature and Principles of Evidence. No inquiry is here proposed 
into the origin of human knowledge ; it being assumed, on the 
authority of approved writers, that all that men know is referable, 
in a philosophical view, to perception and reflection. But, in fact, 
the knowledge acquired Ijy an individual, through his own per- 
ception and reflection, is but a small part of what he possesses ; 
much of what we are content to regard and act upon as knowledge 
having been acquired through the perception of others.^ It is not 
easy to conceive that the Supreme Being, whose wisdom is so con- 
spicuous in all his works, constituted man to believe only upon 
his own personal experience ; since in that case the world could 
neither be governed nor improved ; and society must remain in the 
state in which it was left by the first generation of men. On the 
contrary, during the period of childhood, we believe implicitly 
almost all that is told us ; and thus are furnished with information 
which we could not otherwise obtain, but which is necessary, at the 
time, for our present protection, or as the means of future improve- 
ment. This disposition to believe may be termed instinctive. At 
an early period, however, we begin to find that, of the things told 
to us, some are not true, and thus our implicit reliance on the 

1 Abercrorabie on the Intellectual Powers, Part II. sec. 1, pp. 45, 46. 



CHAP. III.] 



GROUNDS OF BELIEF. 



13 



testimony of others is weakened ; first, in regard to particular 
tilings in which we have been deceived ; then in regard to persons 
whose falseliood we have detected ; and, as these instances multiijly 
upon us, we gradually become more and more distrustful of such 
statements, and learn by experience the necessity of testing them 
by certain rules. Thus, as our ability to obtain knowledge by 
other means increases, our instinctive reliance on testimony dimin- 
ishes, by yielding to a more rational belief.^ 

§ 8. It is true, that in receiving the knowledge of facts from the 
testimony of others, we are much influenced by their accordance 



1 Gambier's Guide, p. 87 ; McKinnon's 
Philosophy of Evidence, p. 40. Tliis sub- 
ject is ti-eated more largely by Dr. IJeid 
in his profound " Inquiry into the Human 
Mnd," ch. 6, sec. 2-1, p. 42&-434, in these 
■words: — "The wise and beneficent Au- 
thor of Nature, who intended that we 
should be social creatures, and that we 
should receive the greatest and most im- 
portant part of our knowledge by the 
information of otlicrs, hath, for these pur- 
poses, implanted in our natures two prin- 
ciples that tally with each other. The 
first of these principles is a propensity to 
speak trutJi and to use the signs of lan- 
guage, so as to convey our real sentiments. 
Tills principle has a powerful operation, 
even in the greatest liars ; for where they 
lie once they speak truth a hundred times. 
Truth is always uppermost, and is the 
natural issue of the mind. It requires no 
art or training, no inducement or tempta- 
tion, but only, that we yield to a natural 
impulse. Lying, on the contrary, is doing 
violence to our nature ; and is never prac- 
tised, even by the worst men, without some 
temptation. Speaking truth is like using 
our natural food, which we would do from 
appetite, although it answered no end ; but 
lying is like taking physic, which is nau- 
seous to the taste, and which no man takes 
but for some end which he cannot other- 
wise attain. If it should be objected, that 
men may be influenced by moral or politi- 
cal considerations to speak truth, and, 
therefore, that their doing so is no proof 
of such an original principle as we have 
mentioned ; I answer, first, tliat moral or 
political considerations can have no influ- 
ence until we arrive at years of under- 
standing and reflection ; and it is certain, 
from experience, that children kceji to 
truth invariably, before they are caixible 
of being influenced by such considerations. 
Secondly, when we are influenced by mor- 
al or political considerations, we must be 
conscious of tliat influence, and capable of 
perceiving it upon reflection. Now, when 



I reflect upon my actions most attentively, 
I am not conscious that, in speaking 
truth, I am influenced on ordinary occa- 
sions by any motive, moral or political. I 
find that truth is always at the door of my 
lips, and goes forth spontaneously, if not 
held back- It requires neither good nor 
bad intention to bring it forth, but only 
that I be artless and undesigning. There 
may, indeed, be temptations to falsehood, 
which Avould be too strong for the natural 
principle of veracity, unaided by principles 
of honor or virtue ; but where there is no 
such temptation, we speak ti'uth by in- 
stinct ; and this instinct is the principle I 
have been explaining. By this instinct, a 
real connection is formed between our 
words and our thoughts, and thereby the 
former become fit to he signs of the latter, 
which they could not otherwise be. And 
although this connection is broken in every 
instance of lying and equivocation, yet 
these instances being comparatively few, 
the authority of human testimony is only 
weakened by them, but not destroyed. 
Anotlier original principle, implanted in 
us b}' the Supreme Being, is a disposition 
toconfide in tlie veracity of others, and to 
believe what they tell us. This is the 
countcrjiart to the former ; and as that 
may be called the principle of veracity, we 
sliall, for want of a more proper name, call 
this the princii)le of credulity. It is mi- 
limitcd in children, until they meet with 
instances of deceit and falsehood ; and it 
retains a very considerable degree of 
strength through life. If nature had left 
the mind of the speaker in iequilibrio, 
without any inclination to the side of truth 
more than to that of falsehood, children 
would lie as often as they speak truth, un- 
til reason was so far ripened, as to suggest 
the imprudence of lying, or conscience, as 
to suggest its innnorality. And if nature 
had left the mind of the hearer in a^quili- 
brio, without any inclination to the side 
of belief more than to that of disbelief, we 
should take no man's word, until we had 



14 



LAW OF EVIDENCE. 



[part I. 



with facts previously known or believed ; and this constitutes what 
is termed their probability. Statements, thus probable, are received 
upon evidence much less cogent than we require for the belief of 
those which do not accord with our previous knowledge. But 
Avhile these statements are more readily received, and justly relied 
ui)on, we should beware of unduly distrusting all others. While 
unbounded credulity is the attriljute of weak minds, which seldom 
think or reason at all, — quo magis nesciunt eo macjis admirantur, 
— unlimited scepticism belongs only to those who make their own 
knowledge and observation the exclusive standard of probaljility. 
Thus the king of Siam rejected the testimony of the Dutch ambas- 
sador, that in his country, water was sometimes congealed into 
a solid mass ; for it was utterly contrary to his own experience. 



% 



positive evidence that he spoke truth. 
His testimony would, in this case, have no 
more authority than his dreams, wliich 
may be true or false ; but no man is dis- 
posed to believe them, on this account, 
tliat they were dreamed. It is evident, 
that in the matter of testimony, the balance 
of human judgment is by nature inclined 
to tJie sif^le of beUef ; and turns to that side 
of itself, when there is nothing put into the 
opposite scale. If it was not so, no propo- 
sition that is uttered in discourse would be 
beheved, until it was examined and tried 
by reason ; and most men would be unable 
to find reasons for believing the thousamlth 
.^partof what is told them. Such distrust 
•'and incredulity would deprive us of the 
greatest benefits of society, and place us 
in a worse condition than that of savages. 
Children, on this supposition, would be 
absolutely incredulous, and therefore abso- 
lutely incapable of instruction ; those who 
had Jittle knowledge of human life, and of 
the manners and characters of men, would 
be in the next degree incredidous ; and 
the most credulous men woidd be those of 
greatest experience, and of the deepest 
penetration ; because in many cases, they 
would be able to find good reasons for be- 
lieving testimony, which the weak and the 
ignorant could not discover. In a word, 
if credulity were the effect of reasoning 
and experience, it must grow up and 
gather strength in the same projiortion as 
reason and experience do. But if it is the 
gift of nature, it will be strongest in child- 
hood, and limited and restrained by expe- 
rience ; and tlie most superficial view of 
liuman life shows, that the last is really 
the case, and not tlie first. It is the inten- 
tion of nature, that we should be carried 
in arms before we arc able to walk ujjon 
our legs ; and it is likewise the intention 



of nature, that our belief should be guided 
by the authority and reason of others, be- 
fore it can be guided by oiu- own reason. 
The weakness "of the infant, and the nat- 
ural affection of the mother, plainly in li- 
cate the former ; and the natural credulity 
of youth and authority of age as plainly 
indicate the latter. The infant, by proper 
nursing and care, acquires strength to walk 
without support. Reason hath likewise 
her infancy, when she must be carried 
in arms ; then she leans entirely upon au- 
tliority, by natural instinct, as if she was 
conscious of her own weakness ; and 
without this support she becomes verti- 
ginous . When brought to maturity by 
pWpC? cidture, she begins to feel her own 
strength, and leans less upon the reason of 
others ; she learns to suspect testimony in 
some cases, and to disbelieve it in others ; 
and sets bounds to that authority, to wliich 
she was at first entirely subject. But still, 
to tlie end of life, she finds a necessity of 
borrowing light from testimony, where she 
has none within herself, and of leaning in 
some degree upon the reason of others, 
where she is conscious of her own imbe- 
cility. jiSaid as, in many instances, Keason, 
even in her maturity, borrows aid from 
testimony, so in others she mutually gives 
aid to it and strengthens its authority. 
For, as we find good reason to reject testi- 
monj' in some cases, so in others we find 
good reason to rely upon it with perfect 
security, in our most important concerns. 
The character, the number, and the disin- 
terestedness of witnesses, the impossibility 
of collusion, and the incredibility of their 
concurring in their testimony without col- 
lusion, may give an irresistible strength to 
testimony, compared to whicli its native 
and intrinsic authority is very inconsider- 
able." 



CHAP. III.] GROUNDS OF BELIEF. 15 

Sceptical pliilosopliers, inconsistentl}' enougli with their own prin- 
ciples, yet true to the nature of man, continue to receive a large 
portion of their knowledge upon testimony derived, not from their 
own experience, but from that of other men ; and this, even when 
it is at variance with much of their own personal observation. 
Thus, the testimony of the historian is received with confidence, in 
regard to the occurrences of ancient times ; that of the naturalist 
and the traveller, in regard to the natural history and civil con- 
dition of other countries ; and that of the astronomer, respectuig 
the heavenly bodies ; facts, which, upon the narrow basis of his 
own " firm and unalterable experience," upon which Mr. Hume 
so much relies, he would be bound to reject, as wholly unworthy 
of belief. 

§ 9. The uniform habits, therefore, as well as the necessities of 
mankind, lead us to consider the disposition to believe, upon the 
evidence of extraneous testimony, as a fundamental principle of 
our moral nature, constituting the general basis upon wliich all 
evidence may be said to rest.^ 

§ 10. Subordinate to this paramount and original principle, it 
may, in the second place, be observed, that evidence rests upon our 
faith in human testimony, as sanctioned by experience ; that is, 
upon the general experienced truth of the statements of men of 
integrity, having capacity and opportunity for observation, and 
without apparent influence from passion or interest to pervert the 
truth. This belief is strengthened by our previous 'knowledge of 
the narrator's reputation for veracity ; by the absence of con- 
flictmg testimony ; and by the presence of that wliich is corrob- 
orating and cumulative. 

§ 11. A third basis of evidence is the known and experienced 
connection subsisting between collateral facts or circumstances,^ 
satisfactorily proved, and tlie fact in controversy. Tliis is merely 
the legal ' application, in other terms^ of a process, familiar in 
natural philosophy, showing the truth of an hypothesis by its 
coincidence with existing phenomena. The connections and co- 
incidences, to which we refer, may be either physical or moral ; 
and the knowledge of them is derived from the known laws of 
matter and motion, from animal instincts, and from the physical, 
intellectual, . and moral constitution and habits of man. Their 

1 Abercrombie on the Intellectual Powers, Part II. sec. 3, pp. 70-75. 



16 LAW OF EVIDENCE. [PART I. 

foiTTc depends on their suflficicncy to exclude every other hypothesis 
but the one under consideration. Thus, the possession of goods 
recently stolen, accompanied with personal proximity in point of 
time and place, and inability in the i»arty charged, to show how 
he came by them, Avould seem naturally, though not necessarily, 
to exclude every other hypothesis but that of his guilt. But the 
possession of the same goods, at a remoter time and place, would 
warrant no such conclusion, as it would leave room for the hy- 
pothesis of their having been lawfully purchased in the course of 
trade. Similar to this in principle is the rule of noscitur a soeiis, 
according to which the meaning of certain words, in a written 
instrument, is ascertained by the context. 

§ 12. Some writers have mentioned yet another ground of the 
credibility of evidence, namely, the exercise of our reason upon 
the effect of coincidences in testimony, which, if collusion be ex- 
cluded, cannot be accounted for upon any other hypothesis than 
that it is true.^ It has been justly remarked, that progress in 
knowledge is not confined, in its results, to the mere facts which 
we acquire, but it has also an extensive influence in enlarging 
the mind for the further reception of truth, and setting it free 
from many of those prejudices which influence men whose minds 
are limited by a narrow field of observation .^ It is also true, that, 
in the actual occurrences of human life, nothing is inconsistent. 
Every event which actually transpires has its appropriate relation 
and place in the vast complication of circumstances, of which the 
affairs of men consist ; it owes its origin to those which have pre- 
ceded it ; it is intimately connected with all others which occur 
at the same time and place, and often with those of remote regions ; 
and, in its turn, it gives birth to a thousand others which succeed.^ 
In all this, there is perfect harmony ; so that it is hardly possible 
to invent a story which, if closely compared with all the actual 
contemporaneous occurrences, may not be shown to be false. 
From these causes, minds, deeply imbued with science, or enlarged 
by long and matured experience, and close observation of the 
conduct and affairs of men, may, with a rapidity and certainty 
approaching to intuition, perceive the elements of truth or false- 
hood in the face itself of the narrative, without any regard to the 
narrator. Thus, Archimedes might have believed an account 

1 1 Stark. Evid. 471, note. « 1 Stark. Evid. 496. 

^ Abercrombie on the Intellectual Powers, Part II. sec. 3, p. 71. 



CHAP. III.] GROUNDS OF BELIEF, 17 

of tlie invention and wonderful powers of tlic stcani-cnginc, wliich 
his unlearned countrymen would have rejected as incredilde ; and 
an experienced judge may instantly discover the falsehood of 
a witness, whose story an inexperienced jury might l)c inclined to 
believe. But though the mind, in these cases, seems to have 
acquired a new power, it is properly to he referred only to experi- 
ence and observation. 

§ 13. In trials of fact, it will generally be found that the factum 
'prohandum is either directly attested by those who speak from their 
own actual and personal knowledge of its existence, or it is to be 
inferred from other facts, satisfactorily proved. In the former 
case, the truth rests upon the second ground before mentioned, 
namely, our faith in human veracity, sanctioned by experience. 
In the latter case, it rests on the same ground, with the addition 
of the experienced connection between the collateral facts thus 
proved and the fact which is in controversy ; constituting the third 
basis of evidence before stated. The facts proved are, in both 
cases, directly attested. In the former case, the proof applies 
immediately to the factum prohandum, without any intervening 
process, and it is therefore called direct or positive testimony. 
In the latter case, as the proof applies immediately to collateral 
facts, supposed to have a connection, near or remote, with the 
fact in controversy, it is termed circumstantial; and sometimes 
but not with entire accuracy, presumptive. Thus, if a witness 
testifies that he saw A inflict a mortal wound on B, of which he 
instantly died ; this is a case of direct evidence ; and, giving to the 
witness the credit to which men are generally entitled, the crime 
is satisfactorily proved. If a witness testifies that a deceased per- 
son was shot with a pistol, and the wadding is found to be part of 
a letter, addressed to the prisoner, the residue of which is discov- 
ered in his pocket ; here the facts themselves are directly attested ; 
but the evidence they afford is termed circumstantial ; and from 
these facts, if unexplained by the prisoner, the jury may, or may 
not, deduce, or infer, or presume his guilt, according as they are 
satisfied, or not, of the natural connection between similar facts, 
and the guilt of the person thus connected with them. In both 
cases, the veracity of the witness is presumed, in the absence of 
proof to the contrary ; but in the latter case there is an additional 
presumption or inference, founded on the known usual connection 
between the facts proved, and the guilt of the party implicated. 

2* 



18 LAW OF EVIDENCE. [PART I. 

Tliis oj>oration of the mind, wliicli is more complex and difficult 
in the latter case, has caused the evidence afforded ])y circum- 
stances to be termed jyyrsvmptive evidence; though in truth, the 
operation is similar in both cases. 

§ 13rt. Circumstantial evidence is of two kinds, namely, cer- 
tain, or that from which the conclusion in question necessarily 
follows ; and uncertain, or that from which the conclusion does 
not necessarily follow, but is probable only, and is obtained by 
process of reasoning. Thus, if the body of a person of mature age 
is found dead, with a recent mortal wound, and the mark of 
a bloody left hand is upon the left arm, it may well be concluded 
that the person once lived, and that another person was present 
at or since the time when the wound was inflicted. So far the 
conclusion is certain ; and the jury would be bound by their oaths 
to find accordingly. But whether the death was caused by suicide 
or by murder, and whether the mark of the l)loody hand was that 
of the assassin, or of a friend who attempted, though too late, to 
afford relief, or to prevent the crime, is a conclusion which does 
not necessarily follow from the facts ])roved, but is obtained from 
these and other circumstances, by probable deduction. The con- 
clusion, in the latter case, may be more or less satisfactory or 
stringent, according to the circumstances. In civil cases, where 
the mischief of an erroneous conclusion is not deemed remediless, 
it is not necessary that the minds of the jurors be freed from all 
doubt ; it is their duty to decide in favor of the party on whose 
side the weight of evidence preponderates, and according to the 
reasonable probability of truth. But in criminal cases, because 
of the more serious and irreparable nature of the consequences of 
a wrong decision, the jurors are required to be satisfied, beyond 
any reasonaljlc doubt, of the guilt of the accused, or it is their 
duty to acquit him ; the charge not being proved by that higher 
degree of evidence which the law demands. In civil cases, it is 
sufficient if the evidence, on the whole, agrees with and supports 
the hypothesis which it is adduced to prove ; but in criminal 
cases it must exclude every other hypothesis but that of the guili 
of the party. In both cases, a verdict may well be founded on 
circumstances alone ; and these often load to a conclusion far 
more satisfactory than direct evidence can produce. ^ 

1 See Bodine's case, in the New Tork the nature ami vahie of tliis kinrl of evi- 
Legal Observer, vol. 4, pp. 89, 95, where dence are fully discussed. See infra, § 44 



CHAP. III.] GROUNDS OF BELIEF. 19 

to 48. And see Commonwealth j-j. Web- prisoner; and unless they are satisfied that 
ster, 5 Cush. 296, ol()-oll»; [People ?\ the proof does exeliule every otlier liypoth- 
Videto, 1 Parker, C. R. GOo. The court esis, then they ou^ht not to convict tlie 
cannot be required to instruct the jury prisoner. " The true rule is, that the cir- 
that if the proof rests upon circumstantial cumstances must be such as to produce a 
evidence, then the jur^- nuist be satisfied moral certainty of guilt, and to exclude 
that the government has proved such a any otlier reasonable hypotliesis." Corn- 
coincidence of circumstances as excludes monwealth v. Goodwin, 1-1 Gray, 55.] 
every hypothesis except the guilt of the 



20 LAW OF EVIDENCE. [PART I. 



CHArTER IV. 

OF PRESUxAIPTI VE EVIDENCE. . 

* § 14. Presumptions of law, and of fact ; conclusive, or disputable. 

15. Conclusive presumptions require no support, and admit no contradiction. 

Ifi. These are defined by statutes, as those of limitation. 

17. rrosmnptions founded on prescription ; same term as statutes of limitation in 

analogous cases. 

18. Men prosuinod to intend the natural consequences of their conduct. 

19. Records presumed correct: specialties upon consideration. 

20. The presumption, omnia rite acta, either from lapse of time, or from the fact 

of being done. 
20rt. In the latter case, the force of the presumption will vary witli tlie circum- 
stances. 

21. So ancient deeds and wills are presumed genuine after the lapse of thirty years. 

22. I'>stoppels are of the class of conclusive presumptions. 

23. Tlie recitals in deeds conclusive against parties and privies. 

24. The grantor in a deed estopped to deny that he had good title, and from 

claiming title adverse to his covenants. 

25. Tlie ten.ant cannot deny the title of his landlord 

2tj. Recitals in deed not conclusive except of facts directly stated. 

27. Admissions, solemn and unsolemn, conclusive. 

28. Conclusive presumptions apply to infants and married women, as to capacity 

and consent. 
2'J. In some countries conclusive presumptions exist, as to survivorship, but not 
common law. 

30. It is there regarded as a question of fact for the jury. 

31. Conclusive presumptions applied by the law of nations. 

32. These presumptions founded more upon policy than i>robability. 

33. Disputable presumptions good until disproved. 

34. These depend upon common experience, and are referable to the jury, where 
any evidence is given. 

35. Presumption of innocence allowed to overcome other presumptions. 

36. But in tlie publication of libel the presumption of innocence yields to that of 

malice. 

37. The destruction of documentary evidence raises a presumption of guilt. 

The fabrication of evidence has a tendency in the same dircctijjjji. 

38. I'rcsumptions founded on the course of trade and business. 
38a. Presumptions of the due execution of wills and deeds. 

39. Presumjitions of payment of bonds and other instruments from the lapse of 

twenty years. 

40. Presumptions from the due course of business in public and private adminis- 

tration of duty. 

41. Presumptions in regard to the continuance of life. 



CHAP. IV.] OF PRESUMPTIVE EVIDENCE. 21 

§ 42. Presumptions that condition and cliaractcr continue unless the contrary be 
shown. 

43. Presumptions of the adoption^of foreign laws, from the comity of nations. 

44. Presumptions of fact defined. 

45. Presumptions from experience against the testimony of accompUces, the verbal 

admissions of a party, &c. &c. 

46. Presumptions of grants and conveyances. 

47. Claims long acquiesced in presumed to be founded in right. 

48. The subject embraces all grounds of inferring one fact from the existence of 

others, whether founded upon a mechanical and physical connection, or upon 
mere probability, depending upon moral evidence.] 

§ 14. The general head of Presumptive Evidence is usually 
divided into two branches, namely, jjresumptions of law and pre- 
sumptions of fact. Presumptions of Law consist of those rules, 
which, in certain cases, either forbid or dispense with any ulterior 
inquiry. They arc founded, either upon the first principles of 
justice ; or the laws of nature ; or the experienced course of human 
conduct and affairs, and the connection usually found to exist 
between certain things. The general doctrines of presumptive 
evidence are not therefore peculiar to municipal law, but are shared 
by it in common with other departments of science. Thus, the 
presumption of a malicious intent to kill, from the deliljerate use 
of a deadly weapon, and the presumption of aquatic haljits in an 
animal found with webbed feet, belong to the same philosophy, 
differing-* only in the instance, and not in the principle, of its 
application. The one fact being proved or ascertained, the other, 
its uniform concomitant, is universally and safely presumed. It is 
this uniformly experienced connection, which leads to its recogni- 
tion by the law without other proof; the presumption, however, 
having more or less force, in proportion to the universality of the 
experience. And this has led to the distribution of presumptions 
of law into two classes, namely, conclusive and dispntahle. 

§ 15. Conclusive, or, as they are elsewhere termed, imperative, or 
absolute presumptions of law, are rules determining the quantity 
of evidence requisite for the support of any particular averment, 
which is not permitted to be overcome by any proof that the fact 
is otherwise. They consist chiefly of those cases in which the 
long-experier.ced connection, before alluded to, has been found so 
general and uniform as to render it expedient for the common 
good, that this connection should be taken to be inseparable and 
universal. They have been adopted by common consent, from 
motives of public policy, for the sake of greater certainty, and the 



22 LAW OF EVIDENCE. [PART I. 

promotion of peace and quiet in the community ; and therefore it 
is, that all corroborating evidence is dispensed with, and all oppos- 
iuii: evidence is forbidden.^ 

§ IG. Sometimes this common consent is expressly declared, 
through the medium of the legislature, in statutes. Thus, by the 
statutes of limitation, where a debt has been created by simple 
contract, and has not been distinctly recognized, within six years, 
as a subsisting obligation, no action can be maintained to recover 
it ; that is, it is conclusively presumed to have been p;ud. A tres- 
pass, after the lapse of the same period, is, in like mannor, 
conclusively presumed to have been satisfied. So the possession 
of land, for the length of time mentioned in the statutes of limita- 
tion, under a claim of absolute title and ownership, constitutes 
against all persons but the sovereign, a conclusive presumption of 
a valid grant.^ 

§ 17. In other cases, the common consent, by which this class 
of legal presumptions is established, is declared through the medium 
of the judicial tribunals, it being the commoti law of the land ; both 
being alike respected, as authoritative declarations of an imperative 
rule of law, against the operation of which no averment or evidence 
is received. Thus, the uninterrupted enjoyment of an incoriX)real 
hereditament for a period beyond the memory of man, is held to 
furnish a conclusive presumption of a prior grant of that which 
has been so enjoyed. This is termed a title by prescription.^ If 

1 The presumption of the 'Roman Law - Tliis period has been limited difTcrcnt- 
is defined to be, — " Conjectura, ducta ab ly, at diflerent times ; but, for tlie last fifty 
eo, quod ut plurimum fit. Ea conjectura years, it has been shortened at succeeding 
vel a ler/e inducitur, vel a jiidicp. Qu:« ab revisions of tlie law, both in England and 
ipsa lege inducitur, vel ita coniparata, ut the United States. By Stat. 3 &-1 Wm. IV. 
probationem contrarii baud adniittat ; vel c. 27, all real actions are barred, after twen- 
ut eadem possit elidi. Priorem doctores ty years from the time when the right of 
prasuniptionem jCRis et de juke, poslerio- action accrued. And tiiis period is adopted 
rem prdisumptionem Juris, adiiellant. Qux in most of the United States, though in 
a Judice indicitur conjectura, prcvsumpfio some of the states it is reduced to seven 
noMiNis vocari solct ; et semper admittit years, while in others it is prolonged to 
probationem contrarii, quamvis, si alicujus fifty. See '6 Cruise's Dig. tit. 81, cli. 
momenti sit, proband! onere relevet." 2, the synopsis of Limitions at the end 
Jlein. ad Pand. Pars iv. § 124. Of the of the chapter (Greenleaf's ed.). See also, 
former, answering to our conclusive pre- 4 Kent, Comm. 188, note (a). -The same 
sumption, Mascardus observes, — "Super period in regard to the title to real prop- 
hac pncsumptione lex firmum sancut jus, erty, or, as some construe it, only to tlie 
et eam pro ven'tate, liuhet." De I'rohationi- profits of the land, is ad()])led in the Hindu 
bus, vol. 1, Quicst. X. 48. An exception Law. See JMacnaghten's Elements of 
to the general conclusiveness of this class Hindu Law, vol. 1, p. 201. 
of presumptions is allowed in the case of ^ 3 Cruise's Dig. 430,431 (Greenleafs 
admissions in Judkio, which will be here- ed.). " Pra3scriptio est titilus, ex usu et 
after mentioned. See infra, §§ 1U9, 186, tempore substantiam capiens, ab authori- 
ses, 206. tatelegis." Co. Litt. 113, a. What length 



CHAP. IV.] 



OF PRESUMPTIVE EVIDENCE. 



23 



this enjoyment has been not only nninterrupted, but exclusive and 
adverse in its character, for the period of twenty years, this also 
has been held, at common law, as a conclusive presumption of 
title.^ There is no dilfcrence, in principle, whether the subject be 
a corporeal or an incorporeal hereditament ; a grant of land may 
as well be presumed as a grant of a fishery, or a common, or a 
way .2 But, in regard to the effect of possession alone for a period 
of time, unaccompanied by other evidence, as affording a presump- 
tion of title, a difference is introduced, by reason of the statute of 
limitations, between corporeal subjects, such as lands and tene- 
ments, and things incorporeal ; and it has been held, that a grant 
of lands, conferring an entire title, cannot be presumed from mere 
possession alone, for any length of time short of that prescribed 
by the statute of limitations. The reason is, that, with respect to 
corporeal hereditaments, the statute has made all the provisions 
which the law deems necessary for quieting possessions ; and has 
thereby taken these cases out of the operation of the common law. 
The possession of lands, however, for a shorter period, when 
coupled with other circumstances, indicative of ownership, may 
justify a jury in finding a grant ; but such cases do not fall within 
this class of presumptions.^ 



of time constitutes this period of legal 
memory has been much discussed among 
lawyers. In tliis country, the courts are 
inclined to adopt the periods mentioned in 
the statutes of limitation, in all cases anal- 
ogous in principle. Coolidse v. Learned, 
8 Pick. 504 ; Melvin v. Whiting, 10 Pick. 
295; Ricard v. Williams, 7 Wheat. 110. 
In England, it is settled by Stat. 2 & 3 
Wm. IV. c. 71, by which the period of legal 
memory has been limited as follows : in 
cases of rights of common or other benefits 
arising out of lauds, except tithes, rents, 
and services, prima facie to thirty years ; 
and conclusively to sixty jears, unless 
pi'oved to have been held by consent, ex- 
pressed by deed or other writing ; in cases 
of aquatic rights, ways, and other ease- 
ments, prima facie to twenty years ; and 
conclusively to forty years, unless proved 
in like manner, by written evidence, to 
have been enjoyed by consent of the own- 
er ; and in cases of lights, conclusively to 
twenty years, unless proved in like man- 
ner, to have been enjoj-ed b}' consent. In 
the Roman Law, jtrescriptions were of two 
kinds : extinctirc and acquisitive. The for- 
mer referred to rights of action, which, for 
the most part, were barred by the lajise of 
thirty years. The latter had regard to the 
mode of acquiring property by long and 



uninterrupted possession ; and this, in the 
case of immovable or real j)roperty, was 
limited, inter prccsentes, to ten years, and 
inter ahsentes, to twenty j'ears. The stu- 
dent will find this doctrine fully discussed 
in Mackeldey's Compendium of Modern 
Civil Law, vol. 1, p. 200-205, 290, et seq. 
(Amer. ed.), with the learned notes of Dr. 
Kaufman. See also. Novel. 119, c. 7, 8. 
[See also, 2 Greenl. Ev. (7th ed.), § 537- 
546, tit. Prescriptiox.] 

1 Tyler v. Wilkinson, 4 Mason, 397, 
402; Ingraham v. Hutchinson, 2 Conn. 584; 
Bealey v. Shaw, 6 East, 208, 215 ; Wright 
V. Howard, 1 Sim. & Stu. 190, 203 ; Strick- 
ler V. Todd, 10 Serg. & Rawle, 63, 69; 
Balston v. Bensted, 1 Campb. 463, 465 ; 
Daniel v. North, 11 East, 371 ; Sherwood 
V. BiHT, 4 Day, 244 ; Tinkham v. Arnold, 
3 Greenl. 120 ; Hill v. Crosby, 2 Pick. 466. 
See Best on Presumptions, p. 103, n. (m) ; 
Bolivar ^lanuf. Co. v. Neponset Manuf. 
Co. 16 Pick. 241. See also post, vol. 2, 
§ 537-546, tit. Prescription. 

- Ricard v. Williams, 7 Wheat. 109 ; 
Prop'rs of Brattle Street Church v. Bul- 
lard, 2 Met. 363. 

3 Sumner v. Child, 2 Conn. 607, 628- 
632, per Gould, J. ; Clark v. Taunce, 4 
Pick. 245. 



24 



LAW OF EVIDENCE. 



[part I. 



§ 18. Thus, also, a sane man is conclusively presumed to contem- 
plate the natural and probable consequences of his own acts ; and, 
therefore, the intent to murder is conclusively inferred from the 
deliberate use of a deadly Aveapon.^ So, the deliberate publication 
of cahunny, which the publisher knows to be false, or has no reason 
to believe to be true, raises a conclusive presumption of malice.^ 
So the neglect of a party to ai)i)car and answer to process, legally 
commenced in a court of competent jurisdiction, he having been 
duly served therewith and summoned, is taken conclusively against 
him as a confession of the matter charged.^ 

§ 19. Conclusive presumptions are also made in favor of judicial 
proceedings. Thus the recoi'ds of a court of justice are presumed 
to have been correctly made;"* a party to the record is presumed to 



1 1 Russ. on Crimes, 658-660 ; Rex v. 
Dixon, 8 M. & S. 15 ; 1 Hale, P. C. 440, 
441 ; liritton, 50, § 6. But if death does 
not ensno till a year and a day (that is, a 
full year) after the stroke, it is eonclusive- 
ly presumed that the stroke was not the 
sole cause of the death, and it is not miu-- 
der. 4 IM. Connn. I'JT; Ghussfordou Eviil. 
5'J"2. Tiie doctrine of presumptive evi- 
dence was familiar to the Mosaic Code ; 
even to the letter of the principle stated in 
the text. Thus, it is laid down, in regard 
to the nianslayer, that "if he smite him 
with an instninicnt of Iron, so that he die," 
— or, "if he smite him with throwing a 
stone irlit'i-i'inlli he may ilie, and he die," — 
or, "if he smite him with a hand-weapon of 
ivood wherewilh he ma}' die, and he die, he 
is a murderer." See Numb. xxxv. 16, 17, 
18. Here, every instrument of Iron is con- 
clusively taken to be a deadly weapon ; 
and the use of any such weapon raises a 
conclusive presumption of malice. Tlie 
same presum])tion arose from li/lm/ in ani- 
hiisli, and thence destroying another. Id. v. 
20. But, in other cases, the existence of 
malice was to l)e proved, as one of the 
facts in the case ; and, in the absence of 
malice, the otlence was reduced to the de- 
gree of 7uans laughter, as at the common 
Hiw. Id. V. '22, 2'i. This very reasonable 
distinction seems to have been miknown 
to the Gentoo Code, which demands life 
for lite in all cases, except where the cul- 
prit is a Brainin. " If a man deprives 
another of life, the magistrate shall deprive 
tiiat person of life." Halhed's Gentoo 
Laws, J5ook 16, sec. 1, \). 2'.'>-]. Formerly, 
if the mother of an ilk'gitimate child, re- 
cently born and found deail, concealed the 
fact of its birth and death, it was conclu- 
sively presumed that she murdered it. 
ytat. 21 Jac. 1, c. oT ; probably copied 



from a similar edict of Hen. II. of France, 
cited by Domat. But this unreasonable 
and barbarous rule is now rescinded, both 
in England and America. 

The sulyect of implied malice, from the 
unexplained fact of killing with a lethal 
weapon, was fully discussed in Connnon- 
wealth V. York, Met. lOo, u])on a differ- 
ence of opinion among the learned judges; 
and the rule, there laid down, in tiivor of 
the inference, was re-affirmed in Connnon- 
wealth V. Webster, 5 Cush. 305. [See 
also Infra, § 34. 

^ Bodwell V. Osgood, 3 Tick. 379; 
Ilaire v. Wilson, 9 B. & C. 643 ; Rex v. 
Shipley, 4 Doug. 73, 177, ])er Ashlnu'st, J. 
[See iihopost, vol. 2 (7th ed.), § 418.] 

3 2 Erskine, Inst. 780. Cases of this 
sort are generally regulated by statutes, or 
by the rules of ])ractii'i> established l)y the 
courts ; but the principle evidently Ijelongs 
to a general jurisprudence. So is the Ro- 
man Law. " Contumacia, eorum, qui, jus 
dicenti non obtemperant, litis dannio coer- 
cetur." Dig. lib. 42, tit. 1, 1. 53. " Si 
citatus ali([uis non coinjiareat, habetur pro 
consentiente." Mascard, De I'rob. vol.3, 
]i. 253, coucl. 1159, n. 26. See further on 
this subject, infra, § 204-211. The right 
of the party to have notice of the proceed- 
ings against him, before his non-apiiear- 
ance, is taken as a confession of the matter 
alleged, has been distinctly recognized in 
the courts both of England and America, 
as a rule, founded in tlie first principles of 
natural justice, and of universal obligation. 
Fisher r. Lane, 3 Wils. 302, 303, per Lee, 
C. J. ; The ]Mary, 9 Cranch, 144, i)er Mar- 
shall, C. J. ; Bradstreet v. The Neptune 
Ins. Co. 3 Sunm. 607, per Story, J. 

* Reed v. Easton, 1 East, 355. Res 
judicata pro veritate accipitur. Dig. lib. 
50, tit. 17, 1. 207. 



CHAP. IV.] PRESUMPTIVE EVIDENCE. 25 

have been interested in the suit ; ^ and, after verdict, it will be 
presumed that those facts, without proof of which the verdict could 
not have been found, were pi'oved, though they are not expressly 
and distinctly alleged in the record ; provided it contains terms 
sufficiently general to comprehend them in fair and reasonable 
intendment.^ The presumption will also be made, after twenty 
years, in faA^or of every judicial tribunal acting within its jurisdic- 
tion, that all persons concerned had due notice of its proceedings.-^ 
A like presumption is also sometimes drawn from the solemnity of 
the act done, though not done in court. Thus a bond or other 
specialty is presumed to have been made upon good consideration^ 
as long as the instrument remains unimpeached.* 

§ 20. To this class of legal presumptions maybe referred one of 
the applications of the rule, Ex diutuniitate temporis omnia jjrcesvr 
niuntur rite et solenniter esse acta ; namely, that which relates to 
transactions, which are not of record, the proper e^ddence of which, 
after the lapse of a little time, it is often impossible, or extremely 
difficult to produce. The rule itself is nothing more than the 
principle of the statutes of limitation, expressed in a different form, 
and applied to other subjects. Thus, where an authority is given 
by law to executors, administrators, guardians, or other officers, 
to make sales of lands, upon being duly licensed by the courts, 
and they are required to advertise the sales in a particular manner, 
and to observe other formalities in their proceedings ; the lapse of 
sufficient time (which m most cases is fixed "at thirty years) ,^ 

1 Stein V. Bowman, 13 Pet. 209. Howell, St. R. 261 ; Feirer's case, 6 Co. 7. 

2 .Jackson v. Pesked, 1 M. & S. 234, 237, The effect of judgments will be farther 
per Ld. Elleuborough ; Stephen on PL considered hereatter. See infra, § 528- 
166, 167 ; Spiers v. Parker, 1 T. E. 141 ; 543. 

[Lathrop v. Stewart, 5 McLean, 167; * Lowe i;. Peers, 4 Burr. 2225. 

Sprague v. Litlierberry, 4 McLean, 442 ; ^ See Pejepscot Prop'rs v. Ransom, 14 

Beale r. Commonwealth, 25 Penn. State INIass. 145 ; Blossom v. Cannon, Id. 177 ; 

R. 11 ; Hordiman v. Herbert, 11 Texas, Colman v. Anderson, 10 Mass. 105. In 

G56. In pleading a discharge in bank- some cases, twenty years has been held 

riiptcy, if the plea shows the District sufficient. As, in favor of the acts of 

C(mrt to have had jurisdiction, and to sheriffs. Drouet r. Rice, 2 Rob. Louis. R. 

have proceeded, on tlie petition to decree 374. So, after partition of lands by an in- 

the discharge, all the intermediate steps corporated land company, and a several 

will be presumed to have been regularly possession, accordingly, for twenty years, 

taken. Morrison v. Woolson, 9 Foster, it was presumed that its meetings were 

N. H. 510]. duhMiotitied. Society, &c., z'. Wlieeler, 1 

3 Brown v. Wood, 17 Mass. 68. A New Hamp. R. 310. ' [See also King v. 
former judgment, still in force, by a court Little, 1 Cash. 436 ; Freeman v. Thayer, 
of competent jurisdiction, in a suit between 33 Maine, 76; Cobleigh v. Young, 15 
the same parties, is conclusive evidence, N. H. 4U3 ; Freeholders of Hudson Co. v. 
upon the matter directly in question in State, 4 Zabr. 718 ; State r. Lewis,_2 New 
such suit, in any subsequent action or pro- Jersey, 564 ; Allcglieny v. Nelson, 25 Penn. 
ceeding. Duchess of Kingston's case, 11 St. R. 332; Plank-road Co. v. Bruce, 6 

VOL. I. 3 



26 LAW OF EVIDENCE. [PART I. 

raises a conclusive presuni])tioii that all tlie legal formalities of the 
sale were ohscrved. Tlic license to sell, as well as the official char- 
acter of the j)arty, being provaljle by record or judicial registration, 
must in general be so proved ; and tlie deed is also to be proved 
in the usual manner ; it is only the intermediate proceedings that 
are presumed. JProbatis extremis^ prcesumuntur media} The rea- 
son of this rule is found in the great probability, that the necessary 
intermediate proceedings were all rcgidarly had, resulting from 
the lapse of so long a period of time, and the acquiescence of the 
parties adversely interested ; and in the great uncertainty of titles, 
as well as the other public mischiefs, which would result, if strict 
proof were required of facts so transitory in tlleir nature, and the 
evidence of which is so seldom preserved with care. Hence it does 
not extend to records and public documents, which are supposed 
always to remain in the custody of the officers charged with their 
preservation, and which, therefore, must be proved, or their loss 
accounted for, and supplied by secondary evidence. ^ Neither does 
the rule apply to cases of prescription.^ ^ 

[* § 20a. The presumption, omnia 7'ite acta, may arise\from lapse 
of time, as before stated ; or from the fact of being done by one 
bound to know, and to act conformably to, the It^w. As where an 
oath is administered to a deponent, in a foreign state, by one sign- 
ing himself, " Justice of the Supreme Court." ^ But it was said, 
in a recent English caso,^ that the force of such presumptions 
must vary with the circumstances of each case.] 

§ 21. The same principle applies to the proof of the execution of 
ancient deeds and wills. Where these instruments are more than 
thirty years old, and are unblemished by any alterations, they are 
said to prove themselves ; the bare production thereof is suflicient ; 

M(I. 457 ; Emmons v. Oldham, 12 Texas, 2 W. Bl. 1228. Proof tliat one's ancestor 

18. Where nine years before the eoin- sat in tlie House of Jiords, and tliat no 

mencement of the suit, a meetinj^ of a i)atent can he discovered, aflbrds a pre- 

proprietary had been called, on the appli- sumption tliat he sat by summons. The 

cation of certain persons representing Braye Peerage, 6 CI. & Fin. 657. Seo 

tiiemselves to be proprietors, it was held also, as to presuming the authority of an 

that there was no legal presumption that executor, Piatt v. McCullough, 1 McLean, 

the petitioners for the meeting were pro- 73. 

prietors, however the rule might In- as to '^ Brunswick?;. McKeen, 4 Greenl. 508; 

ancient transactions, but that proof of some Hathaway v. Clark, 6 Pick. 4',t(). 
kind, to show the tact that they were pro- ■' IMdridge ?'. Knott, ('owp. 215; Mayor 

prietors, must be adduced to sustain the of Kingston v. Horner, Id. 102. 
issue. Stevens v. Taft, 3 Gray, 487;] * I * Saltar v. Applegate, 3 Zabr. 115. 
[ * Williams r. Eyton, 4 il. &iSI. 357 ; s. c. '' v'innicombe v. Butler, 34 L. J. Prob. 

5 Jur. N. s. 770.] 18.] 
1 Erskine, Inst. 782 ; Earle v. Baxter, 



CHAP. IV.] PRESUMPTIVE EVIDENCE. 27 

the subscribing witnesses being presumed to be dead. This pre- 
sumption, so far as this rule of evidence is concerned, is not affected 
by proof that the witnesses are living.^ But it must appear that 
the instrument comes from such custody, as to afford a reasonable 
presumption in favor of its gcuuineucss ; and that it is otherwise 
free from just grounds of suspicion;'^ and in the case of a bond for 
the payment of money, there must be some endorsement of interest, 
or other mark of genuineness, within the thirty years, to entitle it 
to be read.3 Whether, if tlie deed be a conveyance of real estate, 
the party is bound first to show some acts of possession under it, 
is a point not perfectly clear upon the authorities ; but the weight 
of opinion seems in' the negative, as will hereafter be more fully 
explained.^ But after an undisturbed possession for thirty years, 
of any property, real or personal, it is too late to question the au- 
thority of the agent, who has undertaken to convey it,^ unless his 
autlw-rity was by matter of record. 

§ z%^JEsto2)j)els may be ranked in this class of presumptions. A 
man is shid to be estopped, when he has done some act, which the 
policy of the law will not permit him to gainsay or deny. " Tlie 
law of estoppel is not so unjust or absurd as it has been too much 
the ciistom to represent." ^ Its foundation is laid in the obligation 
which every man is under to speak and act according to the truth 
of the case, and in the policy of the law, to prevent the great mis- 
chiefs resulting from uncertainty, confusion, and want of confidence, 
in the intercoiirse of men, if they were permitted to deny that 
which they have deliberately and solemnly asserted and received 

1 Rex V. rarringdon, 2 T. R. 471, per 570; Swinnerton v. Marquis of Stafford, 
Buller, J.; Doe v. Wolley, 8 B. & C. 22; 3 Taunt. 91; Jackson v. Davis, 5 Cow- 
Bull. N. r. 255 ; 12 Vin. Abr. 84 ; Gov. en, 123 ; Jackson v. Luquere, Id. 221 ; 
&c. of Chelsea Waterworks v. Cowper, 1 Doe v. Beynon, 4 P. & D. l'J3 ; Doe v. 
Esp. 275 ; Rex v. Ryton, 5 T. R. 259 ; Samples, 3 Xev. & P. 254. 
Rex V. Long, Buckby, 7 East, 45; McKe- ^ Forbes v. Wale, 1 W. BI. 532; 1 Esp. 
nire v. Frazer, 9 Ves. 5 ; Oldnail v. Deakin, 278, s. c. ; {iifm, §§ 121, 122. 
8 C. & P. 462; Jackson v. Blanshan, 3 ■* I/tjVci. § 144, note (1). 
Johns. 292; Winn v. Patterson, 9 Peters, ^ Stockbridge r. West Stoekbridge, 14 
G74, 675 ; Bank United States i\ Dand- Mass. 257. Where there had been a pos- 
ridge, 12 Wheat. 70, 71 ; Henthorne v. session of thirty-five years, under a legis- 
Doe, 1 Blackf. 157 ; Bennet v. Runyon, lative grant, it was held conclusive evi- 
4 Dana, R. 422, 424; Cook v. Totten, dence of a good title, tliongh the grant was 
6 Dana, 110 ; Thurston v. Masterson, 9 unconstitutional. Trustees of the Episco- 
Dana, 233 ; Hynde v. Vattiere, 1 McLean, pal Church in Ncwbern r. Trustees of 
115; Walton v. Coulson, Id. 124; Nor- Newbern Acadcniv, 2 Hawks, 233. 
thrope V. Wright, 24 Wend. 221 ; [King ^ Per Taunton, J., 2 Ad. & El. 291. 
V. Little, 1 Cush. 436 ; Settle v. Allison, 8 [See Cruise's Dig. (Greenl. 2d cd.) tit. 32, 
Geo. 201]. eh. 20, § 64, note. (Greenl. 2d cd. vol. 2, p. 

^ Roe r. Rawlings, 7 East, 279, 291 ; 12 611.)] 
Vin. Abr. 84, Evid. A. b. 5 ; infra, §§ 142, 



28 LAW OF EVIDENCE. [PART I. 

as true. If it be a recital of facts iu a deed, there is implied a 
soleiim engagement, that the facts are so, as they are recited. The 
doctrine of estoppels has, ho^vever, been guarded with great strict- 
ness ; not l)ecause the party enforcing it necessarily wishes to 
exclude the truth ; for it is rather to be supposed, that that is true, 
wiiich the opposite party has already solemnly recited ; but be- 
cause the estoppel may exclude the truth. Hence, estoppels must 
be certain to every intent ; for no one shall be denied setting up 
the truth, unless it is in plain and clear contradiction to his former 
allegations and acts.^ 

§ 23. In regard to recitals in deeds, the general rule is, t hat all 
parti es to a dee d are bound by the recitals therei n,^ which operates 
as an estoppel, working on the interest in the land, if it be a deed 
of conveyance and binding both parties and privies ; privies in 
blood, privies in estate, and privies in law. Between such parties 
and privies, the deed or other matter recited needs not at any time 
be otherwise proved, the recital of it in the subsequent deed being 
conclusive. It is not offered as secondary, but as primary evi- 
dence, which cannot bo averred against, and which forms a muni- 
ment of title. Thus, the recital of a lease, in a deed of release, is 
conclusive evidence of the existence of the lease against the parties, 
and all others claiming under them in privity of estate.^ 

1 Bowman v. Taylor, 2 Ad. & El. 278, niptcy. T>oe v. Shelton, 3 Ad. & El. 265, 

289, per Ld. C. J. Denrnan ; Id. 2'Jl, per* 283. If the deed recite tliat the coiisider- 

Taimton, J. ; Lainson v. Treinere, 2 Ad. ation was paid by a husband and wife, pa- 

& El. 792 ; Pelletrau v. Jackson, 11 Wend, rol evidence is admissible to show that the 

117; 4 Kent, Comm. 261, note; Carvers, money consisted of a legacy <>;iven to the 

Jackson, 4 Tefers, 83. wife. Doe v. Statham, 7 D. & Ky. 141. 

I- But it is not true, as a ge neral prop o: ^ Siielly v. Wright, Willes, 9; Crane 

sitioiij THlal one" ■claTriiTng~1an'3^ under" a., v. Morris, 6 Peters, Gil ; Carver v. Jack- 

' (TeeS to which lie was not a party, adopts son, 4 Peters, 1, 83; Cosscns v. Cossens, 

I fliCrccifalVof fills in an .anterior deed,. Willes, 25. But such recital does not bind 

i which "o t o make up his title . 'J'hercfore, strangers, or tiiose who claim by title pa- 

rwhere, uy'a deed macTe" in January, 1796, ramount to the deed. It does not bind 

; it was recited that S. became bankrupt in persons claiming by an adverse title, or 

j 1781, and that, by virtue of the proceed- persons claiming from the parties by a 

ings under the commission, certain lands title anterior to the date of the reciting 

' liad been conveyed to AV. and thereupon deed. See Carver v. Jackson, iih. sup. 

! W. conveyed tiie same lands to B. for the In this case, the docti-ine of estoppel is very 

\ jiurpose of enabling him to make a tenant fully expounded by Mr. Justice Story, 

[ to the prx'cijie ; to which deed B. was not where, after stating the general i)rincii)le, 

,a party; and afterwards, in February, as in tiie text, with the qualiticalion just 

I 1796, B. by a deed, not referring to the mentioned, he proceeds (p. 83) as follows. 

j deed last mentioned, nor to the bankrupt- " Such is the general rule. But there are 

; cy, conveyed the premises to a tenant to cases, in which such a recital maybe used 

t the pra>cii)e, and declared the uses of the as evidence even against strangers. If, 

i recovery to be to his mother for life, re- for instance, there be the recital of a lease 

.; mainder to himself in fee ; it was held in a deed of release, and in a suit against 

i that B. in a suit respecting other land, a stranger the title under the release comes 

was not estopped from disputing S.'s bank- in question, there the recital of the lease 



CHAP. lY.] 



PRESUMPTIVE EVIDENX'E. 



29 



§ 24. Thus, also, a grantor is, in general, estopped by his deed 
from denying that he had any title in the thing granted. But 



in such a release is not per s" evidence of recital was offered as evidence against a 

the existence of the lease. But if the ex- stranger. In any other point of view, it 

istence and loss of the lease be established would be inconsistent with the preceding 

by other evidence, there the recital is ad- propositions, as well as with the cases in 2 

missible, as secondary proof, in the absence P. Wihiams and Willes. In Trevivan v. 

of more perfect evidoiice, to establish the Lawrence, 1 Salk. 27(5, the court held, 

contents of the lease ; and if tlie transac- that the parties and all claiming under 

tion be an ancient one, and the possession them were estopi)ed from asserting that a, 

has been long held under such release, and judgment, sued against the party as of 

is not otherwi.xe to be accounted for, there Trinity term, was not of that term, but of 

the recital will of itself, under such cir- another term ; that very point having aris- 

cumstances, materially fortify the pre- en and been decided against the party 

sumption, from lajise of time and length of upon a srire facias on the judgment. But 

possession, of the original existence of the court there held (what is very material 



the lease. Leases, like other deeds and 
grants, may be .presumed from long pos- 
session, which cannot otherwise be ex- 
plained ; and, under such circumstances, 
a recital of the fact of sucli a lease in an 



to the present purpose), that 'if a man 
make a lease by indenture of D in which 
he hath notliing, and afterwards purchases 
D in fee, and afterwards bargains and 
sells it to A and his lieirs, A shall be 



old deed is certainly far stronger presump- bound by this estoppel ; and, that where 
tive proof in favor' of such possession un- an estoppel works on the interest of the 
der title, than the naked presumption aris- lands, it runs with the land into whose 
ing from a mere unexplained possession, hands soever the land comes; and an 
Such is the general result of tlie doctrine ejectment is maintainable upon the mere 
to be found in the best elementary v.-riters estoppel.' This decision is important in 
on the subject of evidence. It may not, several respects. In the first place, it 
however, be unimportant to examine a shows that an estoppel may arise by im- 
few of the authorities in support of the plication from a grant, that the party hath 
doctrine on which we rely. The cases of an estate in the land, wliich he may con- 
Marchioness of Anandale r. Harris, 2 P. vey, and he shall be esto])ped to deny it. 
Wms. 432, and Shelly v. Wright, Willes, In the next place, it shows that such es- 
9, are sutficiently direct, as to the opera- toppel binds all persons claiming the same 
tion of recitals by way of estoppel be- land, not only under the sa^pe deed, but 
tween the parties. In Ford v. Gray, 1 under any subsequent conveyance from 
Salk. 285, one of the points ruled was the same party ; that is to say, it binds 
'that a recital of a lease in a deed of a re- not merely privies in blood, but privies in 
lease is good evidence of such lease against estate, as subsequent grantees and alienees, 
the releasor, and those who claim under In the next place, it shows that an estoj)- 
him ; but, as to others, it is not, without pel, which (as the phrase is) works on the 
proving that there was such a deed, and interest of the land, runs with it, into 
it was lost or destroyed.' The same case whosesoever hands the land comes. The 
is reported in Mod. 44, where it is said same doctrine is recognized by Lord Chief 
that it was ruled, ' that the recital of a Baron Comyns, in his Digest, Estoppel, 
lease in a deed of release is good evidence B. & E. 10. In the latter place (E. 10) 
against tlie releasor, and those that claim he puts the case more stroiigly ; for lie 
under him.' It is then stated, that ' a fine asserts, that the estoppel binds, even 
was produced, but no deed declaring tlie though all the facts are tound in a special 
uses ; but a deed was offered in evidence, verdict. ' But,' says he, and he relies on 
which did recite a deed of limitation of his own authority, ' where an estoppel 
the uses, and the question was, whether binds the estate and converts it to an in- 
that (recital) was evidence ; and the court terest, the coiu't will adjudge accordingly, 
said, that the bare recital was not evidence; As if A leases land to B for six years, in 
but that, if it could be proved that such a which he has nothing, and then purchases 
deed liad been [executed], and [is] lost, it a lease of the same hind for twenty-one 
would do if it were recited in another.' vears, and afterwards leases to C for ten 



This was, doubtless, the same point assert- 
ed in the latter clause of the report in Sal- 
keld ; and, thus explained, it is perfectly 
consistent with the statement in Salkeld ; 



years, and all this is found by a verdict ; 
the court will adjudge the lease to B good, 
though it be so only by conclusion.' A 
doctrine similar in principle was asserted 



and must be referred to a case where the in this court, in Terrett v. Taylor, 9 Cranch, 



30 



LAW OF EVIDENCE. 



[part I. 



this rule does not apply to a grantor acting officially, as a public 
Tagent or trustee.^ A covenant of warranty also estops the grantor 
I from setting-up an after-acquired title against the grantee, for it is 
1 a perpetually operating covenant ; ^ but he is not thus estopped by 
! a covenant, that he is seised in fee and has good right to convey ; ^ 
'Tor any seisin in fact, though by wrong, is sufficient to satisfy this 
covenant, its import being merely this, that he has the seisin in 
fact, at the time of conveyance, and thereby is qualified to transfer 



52. The flistinction, then, which was 
xirged at tlie bar, that an estoppel of this 
sort binds those claiming under the same 
deed, but not those claiming by a subse- 
quent deed under the same party, is not 
well founded. All privies in estate by a 
subsequent deed are bound in the same 
manner as privies in blood ; and so, in- 
deed, is the doctrine of Comyns's Digest, 
Estoppel B., and in Co. Lit. 852a. We 
may now pass to a short review of some 
of the American cases on this subject. 
Denn v. Cornell, 3 Johns. Cas. 174, is 
strongly in point. There, Lieutenant-gov- 
eruor Golden, in 1775, made his will, and 
in it recited that he had conveyed to his 
son David his lands in the township of 
Flushing, and he then devised his other 
estate to liis sons and daughters, &c., &c. 
Afterwards, David's estate was confiscated 
\uider the act of attainder, and the defend- 
ant in ejectment claimed under that con- 
fiscation, and deduced liis title from the 
state. No deed of the Flushing estate 
(the land in controversy) was proved from 
the father ; and the heir at law sought to 
recover on that ground. But tlie court 
held that the recital in the M'ill, that the 
testator had conveyed the estate to David, 
was an estoppel of the heir to deny that 
fact, and bound the estate. In this case, 
the estoppel was set up by the tenant 
claiming under the state, as an estoppel 

' running with the land. If the state or its 
grantee might set up the estoppel in favor 
of their title, then, as estoppels are recip- 
rocal, and bind both parties, it might have 

■ been set up against the state or its grantee. 

I It has been said at the bar, that the estate 

I is not bound by estoppel by any recital in a 
deed. That may be so where the recital is 
in his own grants or patents, for they are 
deemed to be made upon suggestion of the 
grantee. (But see Commonwealth v. Ve- 
jepscot Proprietors, 10 Mass. 155.) But 
wliere the state claims title under the deed, 
or other solemh acts of third persons, it 
takes it mm oiiere, and subject to all the es- 
toppels running with the title and estate, in 
the same way as other privies in estate. 



In Penrose v. Griffith, 4 Binn. 231, it was 
held that recitals in a patent of the Com- 
monwealth were evidence against it, but 
not against persons claiming by a title ])ar- 
amount from the Commonwealth. The 
court there said, that the rule of law is, 
that a deed containing a recital of another 
deed is evidence of the recited deed against 
the grantor, and all persons claiming by 
title derived from him subsequently. The 
reason of the rule is, that the recital 
amounts to the confession of the party ; 
and that confession is evidence against 
himself, and those who stand in his i)lace. 
But such confession can be no evidence 
against strangers. Tlie same doctrine 
was acted upon and confirmed by the same 
court, in Garwood v. Dennis, 4 Binn. 314. 
In that case, the court further held, that 
a recital in another deed was evidence 
against strangers, where the deed was an- 
cient and the possession was consistent 
with the deed. That case also had the 
peculiarity belonging to the present, that 
the possession was of a middle nature, 
that is, it might not have been held solely 
in consequence of the deed, for the party 
had another title ; but there never was 
any possession against it. There was a 
double title, and the question was, to 
which the possession might be attributa- 
ble. The court thought, that a suitable 
foundation of the original existence and 
loss of the recited deed being laid in the 
evidence, the recital in the deed was good 
corroborative evidence, even against stran- 
gers. And other authorities certainly 
warrant this decision." 

1 Fairtitle v. Gilbert, 2 T. K. 171 ; Co. 
Lit. 3G3, b. 

2 Terretty. Taylor, 9 Cranch,43 ; Jack- 
son V. Matsdorf, 11 Johns. 97 ; Jackson 
V. Wright, 14 Johns. 183; Mc Williams 
V. Nisby, 2 Serg. & Kawl. 515 ; Somes v. 
Skinner, 3 Pick. 52. [See Blanchard v. 
Ellis, 1 Gray, 195. But such a covenantj 
does not estop the grantor from claimingj 
a way of necessity over the land granted. I 
Brigham v. Smith, 4 Gray, 297.] 

8 Allen V. Sayward, 5 Greenl. 227. 



^5 



CHAP. IV.] PRESUMPTIVE EVIDENCE. 31 

the estate to the grantee.^ Nor is a feme covert estopped, by her 
deed of conveyance, from claiming the hiiid by a title subsequently 
acquired ; for she cannot bind herself personally by any covenant.^ 
Neither is one who has purchased land in his own name, for the 
benefit of another, which he has afterwards conveyed by deed to 
his employer, estopped by such deed, from claiming the land by an 
elder and after-acquired title.^ Nor is the heir estopped from 
questioning the validity of his ancestor's deed, as a fraud against 
an express statute.^ The grantee, or lessee, in a deed poll, is not,| 9 
in general, estopped from gainsaying any thing mentioned in the| • 
deed ; for it is the deed of the grantor or lessor only ; yet if such I '^ 
grantee or lessee claims title under the deed, he is thereby estopped I . 
to deny the title of the grantor .^ 

§ 25. It was an early rule of feudal policy, that the tenant should 
not be permitted to deny the title of the lord, from whom he had 
received investiture, and whose liegeman he had become ; but as 
long as that relation existed, the title of the lord was conclusively 
presumed against the tenant, to be perfect and valid. And though 
the feudal reasons of the rule have long since ceased, yet other 
reasons of public policy have arisen in their place, thereljy preserv- 
ing the rule in its original vigor. A tenant, therefore, by inden- 
ture, is not permitted, at this day, to deny the title of his lessor, 
while the relation thus created subsists. It is of the essence of 
the contract under which he claims, that the paramount ownership 
of the lessor shall be acknowledged during the continuance of the 
lease, and that possession shall be surrendered at its expiration. 
He could not controvert this title without breaking the faith which 
he had pledged.^ But this doctrine does not apply with the same 
force, and to the same extent between other parties, such as re- 
leasor and releasee, where the latter has not received possession 



1 Marston v. Hobhs, 2 Mass. 433 ; * Doe v. Lloyd, 8 Scott, 93. 
Bearce v. Jackson, 4 ]\Iass. 408; Twom- ^ Co. Lit. 863, b; Goddard's case, 4 Co. 
bly V. Henly, Id. 441 ; Chapell v. Bull, 17 4. But he is not always concluded by re- 
Mass. 213. [* These cases have not been citals in anterior title deeds. See supra, § 
followed in some of the other states, where 23, note. 

it is held that covenants of seisin bind the " Com. Dig. Estoppel, A. 2; Craig. 

party to show thai he had stiod title at the Jus. Feud. lib. 3, tit. 5, §§ 1, 2; Bliglit's 

diite of the covenant. See Richardson v. Lessee i\ Rochester, 7 Wheat, ooo, o47. 

Dorr, 5 Vert. K. 'J ; Hosmer, Ch. J., in [The assignee of a lease, who enters upon 

Lockwood V. Sturdevant, 6 Conn. 373.] and occujjies the premises, is estopped in 

- Jackson r. Vanderhayden, 17 Johns, an action for the rent, brought against him 

167 ; [Lowell v. Daniels, 2 Gray, IGl.] by the original lessor, to deny the validity 

•* Jackson r. Mills, 13 Johns. 463; 4 of the assignment l)y the original lessee to 

Kent, Counn. 200, 261, note. him. Blake i\ Sanderson, 1 Gray, 332.J 



32 LAW OF EVIDENCE. [PART I. 

from the former. In such cases, where the party ah-eady in 
possession of kind, under a claim of title by deed, purchases peace 
and quietness of enjoyment, by the mere extinction of a hostile 
claim by a release, without covenants of title, he is not estopped 
from denying the validity of the title, which he has thus far extin- 
guished.i Neither is this vnla apjilicd in the case of a lease already 
expired; provided the tenant has cither quitted the possession, or 
has submitted to the title of a new landlord ; ^ nor is it ai)plied to 
the case of a tenant, who has been ousted or evicted by a title 
paramount ; or who has been drawn into the contract by the fraud \ 
or misrepresentation of the lessor, and has, in fact, derived no 
benefit from the possession of the land.^ Nor is a defendant in 
ejectment estopped from showing that the party, under whom the 
lessor claims, had no title when he conveyed to the lessor, although 
the defendant himself claims from the same party, if it be by a 
subsequent conveyance.* 

§ 2G. This rule in regard t^T the conclusive effect of recitalsin 
deeds is,~restrieted to the recital 9£ things in parti ciliar , as beiug^ 
in existence at the time of the execution of the dee d ; and do-es 
not extend"to'the^ention of things in general terms. Therefore, 
if one be bound in a bond, conditioned to perform the covenants 
in a certain indenture, or to pay the money mentioned in a certain 
recognizance, he shall not be permitted to say that there was no 
such indenture or recognizance. But if the b#nd be conditioned, 
that the obligor shall perform all the agreements set down by A., 
or carry away all the marl in a certain close, he is not estopped by. 
this general condition from saying, that no agreement was set 
down by A., or that there was no marl in the close. Neither does 
this doctrine apply to that which is mere description in the deed, 
and not an essential averment ; such as the quantity of land ; its 
nature, whether arable or meadow ; the number of tons in a vessel 
chartered by the ton ; or the like ; for these are but incidental and 

1 Fox V. Widgery, 4 Greeiil. 214; tlie tenant, upon the lessor afterwards tlis- 

Rlii^lit's Lessee i>. Rochester, 7 Wheat, trainint;' for rent, was not Ktopi)ed to allege, 

5:55, 547; Ham i\ Ham,. 2 Shopl. 35L tliat the riglit of the latter had expired. 

Tims, wliere a stranger set up a title to Downs r. Cooper, 2 Ad. & El. 252, N. s. 
tlie i)rcniises, to wliich tlie lessor submit- - England r. Slade, 4 T. R. 681 ; Balls 

ted, directing his lessee in future to pay v. Wcstwood, 2 Campb. 11. 
the rent to the stranger ; it was held, that ^ Hayne >'. Maltby, 3 T. R. 438 ; Hoarn 

the lessor was estojjpcd from afterwards v. Tomlin, I'eake's Cas. T.)l. 
treating the lessee as his tenant; and that * Doe v. Payne, 1 Ad. & El. 538. 



CHAP. IV,] 



PRESUMPTIVE EVIDENCE. 



33 



collateral to the principal thing, and may be supposed not to have 
received the deliberate attention of the parties.^ 

§ 27. In addition to estoppels by deed, there are two classes of 
admissions which fall under this head of conclusive presumptions 
of law ; namely, solemn admissions, or admissions in judicio, which 
have been solemnly made in the course of judicial proceedings, 
either expressly, and as a substitute for proof of the fact, or tacitly, 
by pleading ; and unsolemn admissions, extra judicium, which have 
been acted upon, or have been made to influence the conduct of 
others, or to derive some advantage to the party, and which cannot 
afterwards be denied without a breach of good faith. Of th e fqr- 
mer class are all agreements of counsel, dispensing with legal 
proof o f facts. ^ So if a material averinent, well pleadedjls passed 



1 4 Com. Dip. Estoppel, A. 2; Yelv. 
227 (by Metcalt), note (1); Doddington's 
case, 2 Co. oo ; Skipworth r. Green, 8 
Mod. 811 ; 1 Stra. 610, s. c. Whether the 
recital of tlie payment of the consider- 
ation-money, in a ileeil of conveyance, tiills 
within the rule, by whieh the party is 
estopped to deny it, or belongs to the 
exceptions, and therefore is open to oppos- 
ing proof, is a point not clearly agreed. 
In England, the recital is regarded as con- 
clusive evidence of payment, binding the 
parties by estoppel. Shelly v. Wright, 
Willes, y ; Cosscns v. Cossens, Id. 25 ; 
Rowntree v. Jacob, 2 Taunt. 141 ; Lampon 
I'. Corke, 5 B. & Aid. 600 ; Baker v. Dew- 
ey, 1 B. & C. 704 ; Hill v. Manchester, and 
Salford Water Works, 2 B. & Aid. 544. 
See also Powell v. JNIonson, 3 Mason, 347, 
351, 356. But the American courts have 
been disposed to treat the recital of the 
amount of the money paid, like the mention 
of the date of the deed, the quantity of 
land, the amount of tonnage of a vessel, 
and otiier recitals of quantity and value,' 
to which the attention of the parties is 
sujiposed to have been but slightly di- 
rected, and to which, therefore, the princi- 
ple of estoppels does not apply. Hence, 
though tiie party is estopped from denying 
the conveyance, and that it was for a val- 
uable consideration, yet the weight of 
American authority is in favor of treating 
the recital as only firimd Jhcic evidence of 
the amount paid, in an action of covenant 
by the grantee to recover back the con- 
sideration, or, in an action of assiiin/isit by 
the grantor, to recover the price which is 
yet unpaid. The principal cases are, — 
in Maasfichiisctls, Wilkinson r. Seott, 17 
Mass. 24'J; Clapp r. Tirrell, 20 Tick. 247 ; 
Livermore v. Aldi-ich, 5 Cush. 431; — in 



Maine, Schilenger v. McCann, 6 Greenl. 
364; Tyler v. Carlton, 7 Greenl. 175; 
Emmons v. Littletield, 1 Shepl. 233 ; Bur- 
bank V. Gould, 3 Sliepl. 118 ; — in Vtinwnl, 
Beach v. Packard, 10 Verm. 96 ; — in Mew 
llampsliire, Morse r. IShattuck, 4 New 
Hamp. 229 ; Pritchard v. Brown, Id. 397 ; 
— in Connecticut, Belden v. Seymour, 8 
Conn. 304; — in New York, Shepherd v. 
Little, 14 Johns. 210; Bowen r. Bell, 20 
Johns. 388 j Whitbeck v. Whitbeck, 9 
Cowen, 266; McCrea v. Purmort, 16 
Wend. 460; — in Pennsi/Ivania, Weigly v. 
Weir, 7 Serg. & Bawl. 311; Watson v. 
Blaine, 12 Serg. & Rawl. 131 ; Jack v. 
Dougherty, 3 Watts, 151; — in Maryland, 
Higdon V. Thomas, 1 Har. & Gill, 139; 
Lingan v. Henderson, 1 Bland, Ch. 236, 
249; — in Virc/inia, Duval v. Bibb, 4 Hen. 
& Munf. 113; JIarvey v. Alexan<lcr, 1 
Randolph, 219 ; — in South Carolina, Curry 
V. Lyles, 2 Hill, 404 ; Garret v. Stuart, 1 
McCord, 514; — in Alahiuna, Mead v. Ste- 
ger, 5 Porter, 4U8, 507; — in Tennexsce, 
Jones V. Ward, 10 Ycrger, 160, 166; — in 
Kentuckii, Hutchinson v. Sinclair, 7 Mon- 
roe, 29i, 293; Gully v. Grubbs, 1 J. J. 
Marsh. 389. The courts in North Carolina 
seem still to hold the recital of payment as 
conclusive. Brocket r. Foscue, 1 Hawks, 
64; Spiers v. Clay, 4 Hawks, 22; Jones 
V. Sasser, 1 Dev. & Batt. 452. And in 
• Louisiana, it is nuule so by legislative en- 
actment. Civil Code of Louisiana, Art. 
2234; Forest v. Shores, 11 Louis. 416. 
See also Steele v. Worthington, 2 Ohio K. 
350; [and see Cruise's Dig. (Greenl. 2(1 
ed.) tit. 32, ch. 2, § 38, note; ch. 20, § 52, 
note (Greenl. 2d ed. vol. 2, pp. 322, 607) J. 

- See /';/;■(?,§§ 169, 170, 186, 204, 205; 
Kohn V. Marsh, 3 Rob. (Louis.) R. 48. 



34 LAW OF EVIDENCE. [PART I. 

over by the adverse party, without dc}iial, whether it he by confes- 
sipiij or by 2->leading some other matter, or by demurring, in law, it 
is_therebj conclusively admitted.^ So also the payment of money 
into court, under a rule for that pur])Osc, in satisfaction of so much 
of the claim as the party admits to be due, is a conclusive admission 
of the character in which the plaintiff sues, and of his claim to the 
amount paid.^ The latter class com])rchends, not only all those 
declarations, but also that line of conduct by which the party has 
induced others to act, or has acquired any advantage to himself.^ 
Thus, a woman cohabited with, and openly recognized by a man, 
as his wife, is conclusively jTresumed to be such, when he is sued 
as her husband, for goods furnished to her, or for other civil lia- 
bilities growing out of that relation.^ So where the sheriff returns 
any thing as fact, done in the course of his duty i^i f^^c service of * 
precept, it is conclusively presumed to be true against him.^ And 
if one party refers the other to a third person for information con- 
cerning a matter of mutual interest in controversy between them, 
the answer given is conclusively taken as true, against the party 
referring.*^ This subject will hereafter be more fully considered, 
under its appropriate title.'' 

§ 28. Conclusive presumptions of law are also made in respect 
to infants and married women. Thus, an infant under the ago 
of seven years is conclusively presumed to be inca[)able of com- 
mitting any felony, for want of discretion;^ and under fourteen, 
a male infant is presumed incapable of committing a rape.^ A 
female under the age of ten years is presumed incapable of con- 
senting to sexual intercourse.^^ Where the husband and wife 
cohabited together, as such, and no impotency is proved, the 
issue is conclusively presumed to be legitimate, though the wife is 
proved to have been at the same time guilty of infidclity.^^ And 



1 Young V. Wright, 1 Campb. 139 ; ^ Simmons ?'. Bradford, 15 Mass. 82. 
Wilson V. Turner, 1 Taunt. 398. But if a « Lloyil v. Willan, 1 Esp. 178; Deles- 
deed is admitted in pleading, tliere must line v. Greenland, 1 Ba.y, 4.'J8; Williams 
still be proof of its identity. Johnson v. v. Innes, 1 Campb. oG4 ; Burt v. Palmer, 5 
Cottingham, 1 Arrast. Macartn. & Ogle, Esp. 145. 
R. 11. - Sec //(/"ra, § 109 to 212. 

^ Cox i: Parrv, 1 T. R. 404 ; Watkins « 4 Bl. Comm. 23. [See 3 Greenl. Ev. 

V. Towers, 2 T.'K. 275; Griffiths r. Wil- (4t1i ed.) p. 4.] 

liams, 1 T. R. 710. [See ?Vm, § 20.5.] «1 Hal. P. C. G30 ; 1 Rus.^ell on 

3 See infra, §§ 184, 195, 190, 207, 208. Crimes, 801 ; Rex v. Phillips, 8 C. & P. 

* Watson V. Threlkeld, 2 Esp. 637; 736; Re.x v. Jordan, 9 C. & P. 118; [8 

Monro v. De Chemant, 4 Cam])b. 215; Greenl. Ev. (4th ed.) §§ 4, 215.] 

Robinson v. Nahon, 1 Campb. 245'; i)ost, ^" 1 Russell on CJrimes, 810. 

§ 207. 11 Cope V. Cope, 1 Mood. & Rob. 269, 



CHAP. lY.] PRESUMPTIVE EVIDENCE. 35 

if a wife act in company with lier liusband in the commission of 
a felony, other than treason or homicide, it is conclusively pre- 
sumed, that she acted under his coercion, and consequently Avitli- 
out any guilty intent.^ 

§ 29. AVhcre the succession to estates is concerned, the ques- 
tion, which of two persons is to be presumed the survivor, where 
both 2->erished in the same calamity^ but the circumstances of their 
deaths are unknown, has been considered in the Roman law, and 
in several other codes ; but in the common law, no rule on the 
subject has been laid down. By the Roman law, if it were the 
case of a father and son, perishing together in the same shipwreck 
or battle, and the son was under the age of puberty, it was pre- 
sumed that he died first, but if above that age, that he was the 
survivor; upon the principle, that in the former case the elder 
is generally the more robust, and in the latter, the younger .^ 
The French code has regard to the ages of fifteen and sixty ; 
presimiing that of those under the former age the eldest survived] 
and that of those above the latter age the youngest survived. If 
the parties were between those ages, but of different sexes, the 
*male is presumed to have survived ; if they were of the same sex, 
the presumption is in favor of the survivorship of the younger, 
as opening the succession in the order of nature.-^ The same 
rules were in force in the territory of Orleans at the time of its 
cession to the United States, and have since been incorporated 
into the code of Louisiana.* 



276 ; Morris v. Davies, 3 C. & P. 215 ; St. exceptions for the benefit of mothers, pa- 
George V. St. Margaret, 1 Salk. 123 ; Ban- trons, and benefieiaries. 
bury'Peerage case, 2 Selw. N. P. (by ^ Code Civil, §§ 720, 721, 722 ; Diiran- 
Wheaton), 558; 1 Sim. and Stu. 153, s. ton, Cours de Droit Franqais, torn. 6, pp. 
c; Eex v. Luffe, 8 East, 193. But if 39, 42, 43, 48, 67, 6'J ; Kogron, Code Civil 
they lived apart, though within such dis- Expli. 411, 412; Toullier, Droit Civil 
tance as afforded an opportunity for inter- Franqais, torn. 4, pp. 70, 72, 73. By the 
com-se, the presumption of legitimacy of Mahometan Law of India, when relatives 
the issue may be rebutted. Morris v. thus perish together, " it is to be pre- 
Davis, 5 C. & Fin. 163. Non-access is not sumed, that they all died at the same 
presumed from the foct, that the wife moment ; and the ])roperty of each shall 
lived in adultery with another ; it must be pass to his living heirs, without any por- 
proved aliunde^ Regina v. Mansfield, 1 tion of it vesting in his companions in 
G. & Dav. 7 ; [Hemmeriway v. Towner, misfortune." See Baillie's Moobummu- 
1 Allen, 209 ; Phillips v. Allen, 2 Allen, dan Law of Inheritance, 172. Such also 
453; Doherty v. Clark, 3 Allen, 151.] was the rule of the ancient Danish Law. 

1 4 Bl. Comm. 28, 29 ; Anon. 2 East, " Filius in communione cum patre et nia- 

P. C. 559; post, vol. 3, §§ 3, 4, 7. tre dcnatus, pro non nato habetur." An- 

- Dig. lib. 34, tit. 5; De rebus dubiis, cher. Lex Cimhrica, lib. 1, c. 9, p. 21. 
1. 9, §§1,3; Ibid. 1. 16, 22, 23 ; Menochi- * Civil Code of Louisiana, art. 930-933 ; 

us de Pra?sumpt. lib. 1, Qutest. x. n. 8, 9. Digest of the Civil Laws of the Territory 

This rule, however, was subject to some of Orleans, art. 60-63. 



36 LAW OF EVIDENCE. [PART I. 

§ 30. This question first arose, in common-law courts, upon 
a motion for a mandamus, in the case of General Stanwix, who 
perished, together with his second wife, and his daughter by 
a former marriage, on the passage from' Dublin to England ; the 
vessel in which they sailed having never been hoard from. Ilere- 
upon his nephew applied for letters of administration, as next 
of kin ; which was resisted by the maternal uncle of the daughter, 
who claimed the effects upon the ];)resumption of the Roman law, 
that she Avas the survivor. But this point was not decided, the 
court decreeing for the nephew upon another ground ; namely, 
that the question could properly be raised only u})on the statute 
of distributions, and not upon an application for administration 
by one clearly entitled to administer by consanguinity.^ The 
point was afterwards raised in chancery, where the case was, that 
the father had bequeathed legacies to such of his children as 
should be living at the time of his death ; and he having perished, 
together with one of the legatees, by the foundering of a vessel 
on a voyage from India to England, the question was, whether the 
legacy was lapsed by the death of the son in the lifetime of the 
father. The Master of the Rolls refused to decide the question* 
by presumption, and directed an issue, to try the fact by a jury.^ 
But the Prerogative Court adopt the presumption, that both 
perished together, and that therefore neither could transmit rights 
to the other.^ In the absence of all evidence of the particular 
circumstances of the calamity, probably this rule will be found 

1 Rex V. Dr. Hay, 1 W. B!. 640. The .also raised, but not disposed of, in Mcehr- 
matter was afterwards compromised, upon in<j v. Mitchell, 1 Barh. Cli. II. 2G4. The 
the recommendation of Lord Mansfield, subject of presumed survivorship is fully 
who said he knew of no legal princijile on treated by Mr. Burge, in his Commenta- 
■which he could decide it. See '1 I'liillim. ries on Colonial and Foreign Laws, vol. 4, 
268, in note; Fearne's Posth. Works, o8. j). 11-^^9. In Chancery it has recently 

2 Mason v. Mason, 1 Meriv. 308. been held, that a presumption of priority 
* Wright V. Netherwood, '2 Salk. 593, of death might be raised from the compar- 

note (a) by Evans ; more fully reported ative age, health, and strength of the par- 

under the name of Wright w. Sarnnida, 2 ties; and, therefore, where two brothers 

Phillim. 266-277, note (c) ; Taylor?;. Dip- jierished by shipwreck, the circumstances 

lock, 2 Phillim. 261, 278, 280; Selwyn's being wholly unknown, the elder being 

case, 3 llagg. Eccl. K. 748. In the goods tiie master, and the younger the second 

of Murray, 1 Curt. 596; Satterthwaite v. mate of the ship, it was presumed that the 

Powell, 1 Curt. 705. See also 2 Kent's latter died first. Sillick v. Booth, 1 Y. & 

CoMim. 435, 436 (4tli ed.), note (b). In C. New Cas. 117. [In Underwood v. 

Hie i)rief note of Colvin ;;. II. M. Procura- Wing, 31 Eng. Law & Eq. 293, where a 

tor-Gen., 1 Ilagg. Ecc^l. R. 92, vThere the husband, wife, and children were swept 

husband, wife, and infant child (if any) from the deck of a vessel by the same 

perished together, the court .seem to have wave, and went down together, it was held, 

held, that the prima facie presumption of tliat, in the absence of evidence, the court 

law was that the husband survived. But would not i)resume that the husband sur- 

the point was not much moved. It was vived the wife.] 



CHAP. IV.] PRESUMPTIVE EVIDENCE. 37 

the safest and most convenient ; ^ but if any circumstances of tlie 
death of either party can be proved, there can be no inconvenience 
in submitting the question to a jury, to whose province it pecu- 
liarly belongs. 

§ 31. Conclusive presumptions of law are not unknown to the 
law of nations. Thus, if a neutral vessel be found carrying de- 
spatches of the enemy between different parts of the enemy's 
dominions, their effect is presumed to be hostile.^ The spoliation 
of papers, by the captured party, has been regarded, in all the 
States of Continental Europe, as conclusive proof of g-uilt ; but in 
England and America, it is open to explanation, unless the cause 
labors under heavy suspicions, or there is a vehement presumption 
of bad faith or gross prevarication.^ 

§ 32. In these cases of conclusive presumption, the rule of law 
merely attaches itself to the circumstances, when proved ; it is 
5L0t_deduced from them. It is not a rule of inference from testi- 
mony ; but a rule of protection, as expedient, and for the general 
good. It does not, for example, assume that all landlords have 
good titles ; but that it will be a public and general inconvenience 
to suffer tenants to dispute them. Neither does it assume, that 
all averments and recitals in deeds and records are true ; but, 
that it will be mischievous, if parties are permitted to deny them. 
It does not assume that all simple contract debts, of six years' 
standing, are paid, nor that every man, quietly occupying land 
twenty years as his own, has a valid title by grant ; but it deems 
it expedient that claims, opposed by such evidence as tlie lapse 
of those periods affords, should not be countenanced, and that 
society is more benefited by a refusal to entertain such claims, 
than by suffering them to be made good by proof. In fine, it 
does not assume the impossibility of things which are possible; 
on the contrary, it is founded, not only on the possibility of their 
existence, but on their occasional occurrence ; and it is against 

1 It was so held in Cove v. Lca(!li, 8 on evidence, and if the evidence does not 

Met. 371. And see Moehring ?'. Mitchell, establish the survivorship of any one, tlie 

1 Barb. Ch. K. 264. [*See Eedfield on law will treat it as a matter incajiable of 

Wills, Part II. § 1, n. 1. In Wing v. An- being- determined. The burden of proof 

grave, 8 n. L. Cas. 183, it is held that there is on the person asserting the affii-ma- 

is no presumption of law arising from age tive.] 

or sex as to survivorship among persons - The Atalanta, 6 Eob. Adm. 440. 

whose death is occasioned by one and the ^ The I'izarro, 2 Wlieat. 227, 241, 242, 

same cause ; nor any presumption of law note (e) ; The Hunter, 1 Dods. Adm. 480, 

that all died at the same time : but the 486. 
question is one of fact depending wholly 

VOL. I. 4 



38 LAW OP EVIDENCE. [PART I. 

the mischiefs of their occurrence, that it interposes its protecting 
prohibition.^ 

§ 33. The SECOND class of presumptions of law, answering to 
the prcesiimptioncs juris of the Roman hxw, which may always be 
overcome by opposing proof, ^ consists of those termed disputable 
presumptions. These, as well as the former, are the result of the 
general experience of a connection between certain facts, or 
things, the one being usually found to be the companion, or the 
effect of the other. The connection, however, in this class, is not 
so intimate, nor so nearly universal, as to render it expedient, 
that it should be absolutely and imperatively presumed to exist 
in every case, all evidence to the contrary being rejected ; but yet 
it is so general, and so nearly universal, that the law itself, with- 
out the aid of a jury, infers the one fact from the proved existence 
of the other, in the absence of all opposing evidence. In this 
mode, the law defines the nature and amount of the evidence, 
which it deems sufficient to establish a primd facie case, and to 
throw the burden of proof on the other party ; and if no o})posing 
evidence is offered, the jury are bound to find in favor of the 
presumption. A contrary verdict would be liable to be set aside, 
as being against evidence. 

§ 34. The rules in this class of presumptions, as in the former, 
have been adopted by common consent, from motives of public 
policy, and for the promotion of the general good ; yet not, as in 
the former class, forbidding all further evidence ; but only ex- 
cusing or dispensing with it, till some proof is given on the other 
side to rebut the presumption thus raised. Thus, as men do not , 
generally violate the penal code, the law presume s every man | \^ 
innocent ; but some" men do transgress it, and therefore evidence_| ' 
is. received to repel this presumption. This legal presumption | 
of innocence is to be regarded by the jury, in every case, as 
matter of evidence, to the benefit of which the party is entitled. 
And where a criminal charge is to be proved by circumstantial 
evid ence, the proof ought to bo n ot o nly coiisistent with the 
prisoner's guilt, but inconsistent with any other rational con- 
jgijig^2jl^_,0n the other hand, as men seldom do unlawful acts 
with innocent intentions, the law jn-esumes every act, in itself 
unlawful, to have been criminally intended, until the contrary 

1 See 6 Law Mao;. 348, 355, 356. 8 Hodge's case, 2 Lewin, Cr. Cas. 227, 

2 Heinnec. ad. Tand. Pars iv. § 124. per Aldeison, B. 



CHAP. IV.] 



PRESUMPTIVE EVIDENCE. 



39 



appears. Thus, on a charge of murder, malice is presumed from 

ythe fact of Trilling, unaccompanied with circumstances of extenuar 4v^ 
tion ; and the burden of disproving the malice is thrown upon \ f^^S, 
the accused. 1 The same presumption arises in civil actions, , 
where the act complained of was unlawful.^ So, also, as men 
generally own the personal property they possess, proof of pos- djl^ 



1 Foster's Crown Law, 255 ; Rex v. 
Farrington, Russ. & Ry. 207. Tliis point 
was re-examined and discussed, with great 
ability and research, in York's case, 'J 
Met. 93, in which a majority of the learned 
judges affirmed the rule as stated in the 
text. Wilde, J., however, strongly dis- 
sented ; maintaining, with great force of 
reason, that the rule was founded in a 
state of society no longer existing ; that it 
was inconsistent with settled principles of 
criminal law ; and that it was not sup- 
ported by the weight of authority. He 
was of opinion that the following conclu- 
sions were maintained on sound princijiles 
of law and manifest justice: 1. That 
when the facts and circumstances accom- 
panying a homicide are given in evidence, 
the question whether the crime is murder 
or manslaughter is to be decided upon the 
evidence, and not upon any presumption 
from the mere act of killing. 2. That if 
there be any such presumption, it is a pre- 
sumption of fact ; and if the evidence leads 
to a reasonable doubt whether the pi'e- 
simiption be well founded, that doubt will 
avail in favor of the prisoner. 3. That 
ithe burden of proof, in every criiiunaj 
lease, is on the government, to prove all 
'th e material allegations in the indictment ; 
[>. ^ ana It, on the whole evidence, the jury 
\i liave a reasonable doubt whether the de- 
/' fendant is guilty of the crime charged, 
;they are bound to acquit him. [In Com- 
Imonwealtli r. Hawkins, 3 Gray, 405, Chief 
' Justice Shaw said, that the doctrine of 
York's case is, that where the killing is 
proved to have been committed by the 
defendant, and iiotliiiu; fmthrr is s/ioim, the 
presumption of law is that it was malicious 
and an act of murder ; and that it was in- 
appUcable to a case where the circumstan- 
ces attending the homicide were fully 
shown by the evidence ; that in such a 
case, the homicide being conceded and no 
excuse or justitication being shown, it was 
either murder or manslaughter ; and that 
the jury upon all the circumstances must 
be satisfied beyond a reasonable doubt that 
it was done with malice before they coidd 
find the defendant guilty of miirder. This 
would ai)]K'ar to qualify materially the 
rule in York's case as it has heretolbre 
been miderstood. [*This question is inci- 



dentally discussed by us in State v. Mc- 
Donnell, 32.Vt. Hep. 491, in a case of hom- 
icide by mutual combat; and, although 
not called to decide the very jjoint involved 
in York's case, supra, we certainly formed 
a very decided opinion in favor of the 
views embraced in the very able dissent- 
ing opinion of Mr. Justice Wilde.] See 
nifra, § 81 b.] 

2 In Bromage v. Proser, 4 B. & C. 247, 
255, 256, which was an action for words 
spoken of the plaintifls, in their business 
and trade of bankers, the law of implied • 
or legal malice, as distinguished ti'om mjQ- 
ice in fact, was clearly expounded l)y Mi-. 
Justice Bayley, in tlie following terms : 
"Malice, in tlie common acceptation,! 
means ill-will against a person, but in its' 
legal sense, it means a wrongful act, donel 
intentionally without just cause or excusej 
If I give a "perfect stranger a blow likely".' 
to produce death, I do it of malice, because 
I do it intentionally and without just cause 
or excuse. If I maim cattle, without 
knowing whose they are, if I poison a 
fishery, without knowing the owner, I do 
it of malice, because it is a wrongfiU act, 
and done intentionally. If I am arraigned 
of felony, and wilfully stand mute, 1 am 
said to do it of malice, because it is inten- 
tional and without just cause or excuse. 
Russell on Crimes, G14, n. 1. And if I 
traduce a man, whether I know him or 
not, and whether I intend to do him an 
injury or not, I apprehend the law consid- 
ers it as done of malice, because it is wrong- 
ful and intentional. It eiiually works an 
injury, whether I meant to produce an in- 
jury or not, and if I had lu) legal excuse 
for the slander, why is he not to have a 
remedy against me for the injury it pro- 
duces "; And I apiMchend the law recog- 
nizes the distinction between the^e two 
descriptions of malice, malice in tact, and 
malice in law, in actions of shmder. In 
an ordinary action for words, it is sufficient 
to charge, 'that the defendant spoke them 
falsely ; it is not necessary to state that 
they were spoken nuiliciously. This is so 
lai(i down in Styles, 892, and'was adjudged 
ui)on error in Mercer r. Sparks, Uwen, 
51 ; Noy, 35. The objection there was, 
that the words were not charged to have 
been spoken maliciously, but the court 






4 



40 LAW OF EVIDENCE. [PART I. 

: session is presumptive proof of ownership.^ But possession of 
the fruits of crime recently after its commission, is lyrimd facie 
evidence of guilty possession ; and if unexplained either by direct 
evidence, or by the attending circumstances, or by the character 
and habits of life of the possessor, or otherwise, it is taken as 
conclusive.^ This rule of jtrcsumption is not confiiicd to the case 
of theft, but is applied to all cases of crime, even the highest and 
most penal. Thus, upon an indictment for arson, proof that 
property which was in the house at the time it was burnt, was 
soon afterwards found in the possession of the prisoner, was held 
to raise a probable presumption, that he was present, and con- 
cerned in the offence.^ • The like presumption is raised in the 
case of murder, accompanied by robbery ;^ and in the case of the 
possession of an unusual quantity of counterfeit money .^ 

§ 35. This presumption of innocence is so strong, that even where 
the guilt can be established only by proving a negative, that nega- 

Itive must , in most cases, be proved by the party alleging the 
guilt ; though the general rule of law devolves the burden of proof 
on the party holding the affirmative. Thus, where the plaintiff 
complained that the defendants, who had chartered his ship, had 
put on board an article highly intlai^imablc and dangerous, without 
givmg notice of its nature to the master, or others in charge of the 

answered tliat the words wore themselves ^ [Armory v. Delamirie, 1 Stra. 505 ; 

malicious and slanderous, and therefore Mafjee ?;. Scott, 9 Cush. 150 ; Fish v. Skut, 

the jud[,mient was athrined. But in ac- 21 Barb. 333 ; MiUay v. Butts, 35 Maine, 

tions for such slander as is primet facie 139 ; Linscott v. Trask, lb. 150.] 

excusable on account of the cause of speak-' ^ Hq^^ ^.^ ^ 2 C. & P. 359 ; Eegina 

ingf or writini:; it, as in the case of servants' v. Coote, 1 Armst. Macartn. & Ogle, K. 

characters, confidential advice, or conunu- 337 ; The State v. Adams, 1 Hay w. 463 ; 

nicatlou to persons who ask it, or have a Wills on Circumstantial Evidence, 67. 

right to e.xpect it, malice in fact must be Where the things stolen are such as do 

proved by the plaintiff; and in Edmondson not pass from liand to hand (e. g. the ends 

V. Stevenson, liuW. N. P. 8, Lord Mansfield of unfinished woollen clothes), their being 

takes the distinction between these and found in the jjrisoner's possession, two 

ordinary actions of slander." numths after they were stolen, is sufficient 

[In Connnonwealth v. Waldcn, 3 Cush. to call for an ex'planation from him how 

659, 561, wiiich was an indictment under he came by them, and to be considered by 

a statute, for malicious mischief in wilfully the jury. Kex v. Partridge, 7 C. & 1*. 551. 

and imilirioiislii injuring a certain animal, Furtum ])ra'sumitur connnissum ab illo, 

by shooting, the court below ruled that penes quem res furata invcnta fuerit, adeo 

""maliciously " meant " the wilfully doing ut si non docuerit a quo rem habueritj 

of any act prohibited by law, and for wliicii juste, ex ilia inventione, poterit subjici 

the (rcftiidant had no lawful excuse." The tormentis. Mascard. De I'robat. vol. 2, 

Suiircine Court held the instructions erro- Concl. 834; Menoch. De Pra;sumpt. Liv. 

iieous, and decided that to make the act 5, Pra^sumpt. 31. [SeeposC, vol. 3, §§ 31, 

"maliciously" done, the jury m ust y'g 32,33.1 

sati,«fied tliat it was done either out of" a ^ Pickman's case, 2 East, P. C. 1035. 

spiritof wanton cruelty or wicked revenge. * Wills on Circumst. Evid. 72. 

See 4 Bl. Comm. 244 ; Jacob's Law Die. ^ ji^x v. Fuller et al., Puss. & Ry. 308. 

by Tomhn, tit. " Miscliief, Malicious."] 



CHAP. IV.] PRESUMPTIVE EVIDENCE. 41 

ship, whereby the vessel was burnt ; he was hekl bound to prove 
this negative averment.^ In some cases, the presumption of 
innocence has been deemed .sufficiently strong to overthrow the 
presumption of life. Thus, where a woman, twelve months after 
her husband was last heard of, married a second husband, by 
whom she had children ; it was held, that the Sessions, in a ques- 
tion upon their settlement, rightly presumed that the first husband 
was dead at the time of the second marriage.^ 

§ 36. An exception to this rule, respecting the presumption of 
innocence, is admitted in the case of a libel. For where a libel is 
sold in a bookseller's shop, by his servant, in the ordinary course 
of his emploj'mcnt, this is evidence of a guilty publication by the 
master ; thougli, in general, an authority to commit a breach of 
the law is not to bo presumed. This exception is founded upon 
public policy, lest irresponsible persons should be put forward, and 
the principal and real offender should escape. Whether such evi- 
'dence is conclusive against the master, or not, the books are not 
perfectly agi-eed ; but it seems conceded, that the want of privity 
in fact by the master is not sufficient to excuse him ; and that the 
presumption of his guilt is so strong as to fall but little short of 
conclusive evidence.^ Proof that the libel was sold in violation of 
express orders from the master would clearly take the case out 
of this exception, by showing that it was not sold in the ordinary 
course of the servant's duty. The same law is applied to the pub- 
lishers of newspapers.* [ * We apprehend, that, at the present day^ 
the rule is pretty generally recognized, that the^cts of the servant^ 
will always bind the master, if performed, in the language of the. 
learned a uthor, " in the ordinary course of the servant's duty." 
And that this rule applies, without regard to the motive of thp 
servant, or the actual privity of the master ; and that even where 

1 "Williams v. E. Ind. Co. 3 East, 192 ; Dienian's Land, bearins: date only twenty- 
Bull. N. P. 298. So, of allegations that a five days prior to the second marriage, it 
party had not taken the sacrament; Bex was held, that the Sessions did right in 
I'. Hawkins, 10 East, '211 : had not com- presuming that the first wife was living 
plied with the act of uniformitv, &c. ; at the time of the second marriage. Rex 
Powell V. JNlillburn, 3 Wills. ;l.55, 3G6 : that v. Ilarhorne, 2 Ad. & El. 540. 

goods were not legally imported ; Sissons '^ Kex v. Gutch, 1 M. & M. 433 ; Hard- 

V. Dixon, 5 B. & C.75S: t:»at a theatre ing v. Greening, 8 Taunt. 42; Kex v. Al- 

was not duly licensed ; Kodwell v. Kedge, mon, 5 Burr. 2686 ; Rex v. Walter, 3 Esp. 

1 C. & P. 220. 21 ; 1 Russ. on Crimes, 341 (3d ed. p. 

2 Rex V. Twyning, 2 B. & Aid. 385. 251) ; Ph. & Am. on Evid. 466; 1 Phil. 
But in another case, where, in a question Evid. 446. 

upon the derivative settlement of the see- ■* 1 Russ. on Crimes, 341 ; Rex v. Nutt, 

end wife, it was proved that a letter had Bull. N. P. 6 (3d ed. p. 251) ; Southwick 
been written trom the first wile ti'om Van v. Stevens, 10 Johns. 443. 

4* 



42 LAW OF EVIDENCE. [PART I. 

the servant acts maMciously and in express disregard of ilic i Ulster's 
instructions, ii" lie act within tlie scope of his emplo} nu'iil, iiml in 
tiie performance of Ms master's busin^ss^ 
superior, api)lies.ij 

§ 37. Tlie presumption of innocence may be overthrown, and a 
presumption of guilt be raised by the misconduct of the party, in 
suppressing or destroying evidence which he ouglit to produce, or to 
which the other party is entitled. Thus, the spoliation of papers, 
material to show the neutral character of a vessel, furnishes a 
strong presumption, in odium spoliatoris, against the ship's neu- 
trality.^ A similar presumption is raised against a party who has 
obtained possession of pa|)crs from a witness, after the service of 
subpoena duces tecum upon the latter for their jtrodiiction, which is 
withheld.^ Tlit' u'cncral rule is, nnniia pr(r><unn(iiliir contra sjjolia- 
toreni.^ His conduct is atiril»ut(Ml io his siijipuscil kimwlodge that 
the truth would have operated against him. Thus, if some of a 
series of documents of title are suppressed by the party admitting' 
them to be in his possession, this is evidence that the documents 
withheld afford inferences unfavorable to the title of that party .^ 
Thus, also, where the finder of a lost jewel would not produce it, 
it was presumed against him that it was of the highest value of its 
kind.^ But if the defendant has been guilty of no fraud, or 
improper conduct, and the only evidence against him is of the 
delivery to him of the plaintiff's goods, of unknown quality, 
the presumption is, that they were goods of the cheapest quality.'^ 
The fabrication of evidence, however, does not of itself furnish any 

1 [ * See Rodfield on Railways, § 137, would have been unfavorable. Scovill 

and the nuinerous cases cited and com- v. Baldwin, 27 Conn, olti.] 
mentedon.l * 2 Poth. Obi. (by Evans) 292; Dal- 

- The Hunter, 1 Dods. 480; The Pi- ston r. Coatswortb, 1 P. Wins. 731 ; Cow- 

zarro, 2 Wheat. 227 ; 1 Kent, Comm. 157 ; per v. Karl Cowjier, 2 P. Wni.s. 720, 748- 

supra, § 81. 752; Rex v. Arundel, Hob. lOi), exi)lainecl 

•' Leeds v. Cook, 4 Esp. 256 ; Rector v. in 2 P. Wnis. 748, 749 ; D. of Newcastle 

Rector, 8 Gilm. 105. P.ut a refu_sal to v. Kinderly, 8 Ves. 368, 375 ; Annesley j-. 

produce txiolcs and pn])ers under a notice ^ E. of Anjilesea., 17 Howell's St. Tr. 1430. 

thougii it lays a i'oundaliini \\>v tlie i ntro- See also Sir Samuel Roniilly's arf;innent 

duction of si'Cdudary "e\ idincc "(mnel? in Lord Melville's case, 29 Howell's St. 

contents, has been held to allord ni) cvi- Tr. 1194, 1195; Anon. 1 Ld. Rayui. 731; 

deuce of the fact sotijiht lo l)e proved by ' Broom's Le,t>al Maxims, p. 425. In Bar- 

thcm ; such, for example, as the existence ker v. Ray, 2 Rnss. 73, the Lord Chancel- 

oFa (Teed of conveyance from one mercan- lor thought that this rule had in some 

tile partner to another. Hanson v. Eus- cases been ])ressed a little too far. See 

tace, 2 Howard, S. C. Re]). 653. [The also Harwood v. Goodright, Cowp. 86. 

omission of a jiarty to call a witness, who [See />o.s7, vol. 3, § 34.] 
mifilit ecpially have been called by the ^ James v. Bicm, 2 Sim. & Stu. 600. 

other i>arty, is no j^^round for a presump- ® Armory v. Delamirie, 1 Stra. 505. 

tiou that the testimony of the witness "^ Cluimes v. Pezzey, 1 Campb. 8. 




CHAP. IV.] PRESUMPTIVE EVIDENCE. 43 

presumption of law against the innocence of the party, but is a 
matter to be dealt with by the jury. Innocent persons, under the 
influence of terror from the danger of their situation, have been 
sometimes led to the simulation of exculijatory facts ; of which sev- 
eral instances arc stated in the books. ^ J^either has the mere 
non-production of boolis, upon notice, any other legal ef^oct, than to 
admit the other party to prove their contents by parol, unless 
under special circumstances.^ [*It is generally considered that 
when a party withholds a document in his possession which would 
show the precise state of the facts, that the other testimony should 
be taken most strongly against him.^] 

§ 38. Other presumptions of this class are founded upon the 
experience of human conduct in the course of trade; men being 
usually vigilant in guarding their property, and prompt in- assert- 
ing their rights, and orderly in conducting their affairs, and 
diligent in claiming and collecting their dues. Thus, where 
a bill of exchange, or an order for the payment of money or 
delivery of goods, is found in the hands of the drawee, or a promis- 
sory note is in the possession of the maker, a legal presumption is 
raised that he has paid the money due upon it, and delivered the 
goods ordered*.^ A bank-note will be presumed to have been 
signed before it was issued, though the signature be torn off.^ So, 
if a deed is found i»i the hands of the grantee, having on its face 
the evidence of its regular execution, it will be presumed to have 
been delivered by the grantor.^ So a receipt for the last year's or 
quarter's rent is primd facie evidence of the payment of all the 

\ 

1 See 3 Inst. 104 ; Wills on Circumst. collocted. See also The State v. Vittum, 

Evid. 113. 9 N. Ilamp. 519 ; Kincaid v. IIowc, 10 

- Cooper I'. Gibbons, 3 Canipb. 363. Mass. '205. [The possession of a bond by 

^ [* Attorney-General v. Windsor, 24 an obligor who is a suiety therein, raises 

Beavan, tiT',).] a letjal presumjition that the bond has 

■* Giljbon V. Featherstonhangh, 1 Stark, been paid. Carroll v. Bowie, 7 Gill, 34.] 

R. 225; Egg v. Barnett, 3 Esp. 196; Gar- [*And the party benefited by a deed or 

lock V. Geortner, 7 Wend. 198 ; Alvord i'. jndgnient will be presumed to assent to 

Baker, 9 Wend. 323; Weidnor w. wSchwei- the same. Clawson v. Eichbaum,2Grant's 

gart, 9 Serg. & II. 385 ; Shepherd v. Cur- Cases, 130.] 

rie, 1 Stark. K. 454 ; Brembridgc v. Gs- '^ Murdock v. Union Bank of Louis. 2 

borne. Id. 374. The production, by the Rob. (Louis.) R. 112; Smith v. Smith, 15 

plaintiff, of an I O U, signed by the de- N. R. 55. 

fendant, is prima facie evidence that it was ^ Ward v. Lewis, 4 Pick. 518. [There ] 

given by him to the plaintiff. Curtis v. is a legal })resnmptioi\, that the property 

Richards, 1 M. & G. 46. And where in the goods is in the consignee named iuj' 

there are two persons, father and son, of tiie bill of lading, so that lie may sue ir 

the same name, it is presumed that the his own name to recover damages for non-j 

father is intended, until the contrary ap- delivery thereof, &c. Lawrence v. Min-^ 

pears. See Stebliing v. Spicer, 8 M. G. & turn, 17 How. U. S. 100.] 
S. 827, where the cases to this point are 



44 LAW OP EVIDENCE. [PART I. 

rent previously accrued. ^ But the mere delivery of money by one 
to another, or of a bank check, of the transfer of stock, unex- 
plained, is presumptive evidence of the payment of an antecedent 
debt, and not of a loan.^ The same presumption arises upon the 
payment of an order or draft for money, namely, that it was drawn 
upon funds of tlie drawer in the hands of the drawee. Ihit in the 
case of an order for the delivery of goods it is otherwise, they 
being presumed to have been sold by the drawee to the drawer.^ 
Thus, also, where the proprietors of adjoining parcels of land agree 
upon a line of division, it is presumed to be a recognition of the 
true original line between their lots.* 

§ 38a. Of a similar character is the presumption in favor of 
the due execution of solemn instruments. Thus, if the sub- 
scribing witnesses to a ^^^ll are dead, or if, being present, they 
are forgetful of all the facts, or of any fact material to its due 
execution, the laAv will in such cases supply the defect of proof, by 
presuming that the requisites of the statute were duly observed.^ 
The same principle, in effect, seems to have been applied in the 
case of deeds.^ 

§ 39. On the same general principle, where a debt due by specialty 
has been unclaimed, and without recognition, for tiventy y&o^^x^ 
the absence of any explanatory evidence, it is presumed to have 
been paid. The jury may infer the fact o| payment from the 
circumstances of the case, within that period ; but the presumption 
of law does not attach, till the twenty years are expired.^ This 

1 1 Gilb. Evid. (by Loffi) 309 ; Brew- « Burling v. Paterson, 9 C. & P. 570 ; 

er V. Knapp, 1 Pick. 337. [See also Dewey v. Dewey, 1 Met. 349 ; Qiiimby v. 

Hodgrlon v. VViglit, 36 Maine, 320.] Buzzell, 4 Sliepl. 470 ; New Haven Co. 

- Welch V. Seaborn, 1 Stark. R. 474 ; Bank v. Mitchell, 16 Conn. 206 ; infra, 

Patton V. Asii, 7 Serg. & K. 116, 125; §372.n. [*Bnt there is no presumption in 

Breton i\ Cope, Peake's Cas. 30 ; Lloytl v. tlie case of a deed, that the witnesses be- 

Sandiland, Gow, R. 13, 10 ; Gary v. Ger- ing dead, would, if living, testify "to the 

rish, 4 Esj). 9 ; Aubert v. Wash, 4 Taunt, grantor's soundness of mind at the time 

293; Boswell v. Smith; 6 C. & P. 00; of delivery. Flanders r. Davis, 19 N. H. 

[*Ger(ling v. Walter, 29 Mo. Rep. 420]. R. 139. IJut one will be presumed to un- 

Where tlio plaiiititf, in proving his charge derstand the contents of an instrument 

of money lent, i)roved the delivery of a signed by him, and whether dated or not. 

banlv-note \.o the defendant, tlie aijiount or Androscoggin Bank v. Kimball, 10 Cush. 

value of wliich did not appear, the jury 373.]- 

were rightly directed to presume that it "^ Oswald ?j. Leigh, 1 T. R. 270; Ililla- 

was a note of tlie smallest denomination ry v. Wellar, 12 Ves. 264 ; Colsell r. Budd, 

in circulation ; the burden of proving it 1 Campb. 27 ; Boltz v. Raliman, 1 Yeates, 

greater being on the plaintifl". Lawtoa v. 584; Cottle v. Payne, 3 Day, 289. In some 

Sweeny, 8 .lur. 964. cases, the presumption of payment has 

■^ Alvord ?'. Baker, 9 Wend. 323, 324. been made by the court, after eighteen 

* Sparhawk v. Bullard. 1 Met. 95. years ; Rex i\ Stepliens, 1 Burr. 434 ; 

* Burgoyne ?•. Showier, 1 Roberts, Clark ?\ Hopkins, 7 Johns. 556 ; but these 
Eccl. R. 10; In re Leach, 12 Jur. 381. seem to be exceptions to the general rule. 



CHAP. IV.] PRESUMPTIVE EVIDENCE. 45 

rule, with its limitation of twenty years, was first introduced into 
the courts of law by Sir Matthew Hale, and has since been generally 
recognized, both in the courts of law and of equity.^ It is applied 
not only to bonds for the payment of money, but to mortgages, 
judgments, warrants to confess judgments, decrees, statutes, recog- 
nizances, and other matters of record, when not affected by stat- 
utes ; but with respect to all other claims not under seal nor 
of record, and not otherwise limited, whether for the payment 
of money, or the performance of specific duties, the general analo- 
gies arc followed, as to the application of the lapse of time, which 
prevail on kindred subjects.^ But in all these cases, the presump.- 
tion of payment may be repelled by any evidence of the situatioa 
of the parties, or other circumstance tending to satisfy the_jurst, 
that the debt is still due.^ 

§ 40. Under this head of presumptions from the course of 
trade, may be ranked the presumptions frequently made from the 
regular course of business in a public office. Thus postmarks on 
letters are prima facie evidence, that the letters were in the post- 
office at the time. and place therein specified.* If a letter is sent' 
by the post, it is presumed, from the known course in that de- 
partment of the public service, that it reached its destination at 
the regular time, and was received by the person to whom it was 
addressed, if living at the place, and usually receiving letters there.^ 
[ * And the same presumption has been applied to telegraphic 



1 Matliews on Presumpt. Evid. 379 ; tliis subject being foreign from the plan of 

Haworth ?'. Bostock, 4 Y. & C. 1 ; Gren- this work, the reader is referred to the 

fell V. Girdlestone, 2 Y. & C. 662. treatise of Mr. Mathews on Fresiunptive 

^ This presumption of^ the common Evidence, ch. 19, 20 ; and to Best on Pre- 
law is now rhade absoTiite m tlie case of sumptions, Part I. ch. 2, 3. [Grantham 
debts due by specialty, by Stat. 3 &4 Wm. v. Canaan, 38 N. H. 2G8.] 
IV. c. 42, § 3. See also Stat. 3 & 4 Wm. IV. * Eletcher v. Braddyl, 3 Stark. E. 64 
c. 27, and 7 Wm. IV. & 1 Vic. c. 28. It is Eex v. Johnson, 7 East, 65 ; Rex v. Wat- 
also adopted in xVciy York, by Rev. Stat, son, 1 Campb. 215; Rex v. Plumer, Rus 
Part III. ch. 4, tit. 2, art. 5, and is repella- & Ry. 264 ; New Haven Co. Bank v. 
ble only by written acknowletTg'mentJ macTe. Mitchell, 15 Conn. 206. 
within twentj' years, or proof of part pay- ^ Saunderson v. Judge, 2 H. Bl. 509 
ment within that period. In ManjIanJ, Bussard v. Levering, 6 Wheat. 102 ; Lin- 
the lapse of twelve years is made a con- denberger v, Beal, lb. 104 ; Bayley on 
elusive presimiption of payment, in all Bills (by Phillips & Sewall), 275, 276, 277 ; 
cases of bonds, judgments, recognizances, Walter v. Haynes, Ry. & M. 149 ; Warren 
and other specialties, by Stat. 1715, ch. i-. AVarren, 1 Cr. M. & R. 250. [*Russell?-. 
23, § 6 ; 1 Dorsey's Laws of Maryl. p. 11 ; Beuckley. 4 R. I. Rep. 525.] [See post, vol. 
Carroll v. AVaring, 3 Gill & Johns. 491. 2 (7th ed.), § 188, and note; Loud r. Mer- 
A like provision exists in Massachusetts, as rill, 45 Maine, 516 ; contra, see Ereenian 
to judgments and decrees, after tlje lapse v. Morey, lb. 50.] [*It would seem that 
of twenty years. Rev. Stat. ch. 120, the date a letter beai's will be regarded, 
§ 24. prima facie, its true date ; hut quere, Butler 

* A more extended consideration of v. Mountgarret, 7 Ho. Lds. Cas. 633.] 



46 LAW OF EVIDENCE. [PAIIT I. 

messages shown to have been duly forwarded.^] Po, where a letter 
was put into a box in an attorney's office, and the course of 
business Avas, that a bell-man of the post-office invariably called 
to take the letters from the box ; this was held sufficient to pre- 
sume that it reached its destination.^ So, the time of clearance 
of a vessel, sailing mider a license, was presumed to have been 
indorsed upon the license, which was lost, upon its being shown, 
that without such indorsement, the custom-house would not have 
permitted the goods to be entered.^ So, on proof that goods 
which cannot be exported without license were entered at the 
custom-house for exportation, it will be presumed, that there was 
a license to export them.^ The return of a sheriff, also, which is 
conclusively presumed to be true, between the parties to the 
process, is taken prima facie as true, even in his own favor; and 
the burden of proving it false, in an action against him for' a false 
return, is devolved on the plaintiff, notwithstanding it is a nega- 
tive allegation.^ In fine, it is presumed, until the co ntrary is_ 
proved, that every man obeys the mandates of the law, and per- 
forms all his official and social duties.^ The like presumption is 
also drawn from the usual course of men's private offices and 
business, where the primary evidence of the fact is wanting.'' 

§ 41. Other presumptions are founded on the experienced con- 
tinuance or permanency, of longer and shorter duration, in human 
affairs. When, therefore, the existence of a person, a personal 
relation, or a state of things, is once established by proof, the law 
presumes tliat the person, relation, or state of things continues 
to exist as before, until the contrary is shown, or until a different 

1 [* Commonwealth u. Jeffries, 7 Allen, 83 Miss. 117; Cm-tis v. Ilerrick, 14 Cal. 

648.] 117; Isbell v. N. Y. & N. Haven K. R. 

- Skilbeck v. Garbett, 9 Jur. 339 ; 7 Ad. Co. 25 Conn. 556.] Hence, children born 

& EI. N. s. H46, s. c. during the separation of husband and wife, 

* Butler i\ Allnut, 1 Stark. K. 222. by a decree of divorce a mensa tt tlmro, are, 

* Van Oineron v. Dowick, 2 Campb. prima facie, illeiiitimatc. St. George r. St. 
44. Margaret, 1 Salk. 123 [ * Drake v. Mooney, 

5 Clark V. Lyman, 10 Pick. 47; Boyn- 31 Vt. 617; Shelbyville v. Shelbyville, 1 

ton ?'. Willard, id. 169. [* But there is no Met. (Ky.) 54; Cobb v. Newcomb, 7 

special ground for presuTiiiug the regii- Clarke (Iowa), 43]. 

larity of the proceedings ot an adniinistra- "' Doe v. Turford, 3 B. & Ad. 890, 895 ; 

tion in the sale of real estate. DooUttle w. Champnevs v. Peck, 1 Stark. K. 404; 

Ilolton, 2f) Vt. K. 58S.] Pritt v. Fairclough, 3 Campb. 305; Dana 

*• Ld. Halifax's case. Bull. N. P [298] ; v. Kemhle, 19 Pick. 112. [*An agreement 

Bank United States r. Dandridge, 12 requiring a stamp being lost, and not hav- 

Wheat. 69, 70 ; Williams v. E. Ind." Co. 3 ing a stamp when last seen by the witness, 

East, 192; Ilartwell v. Root, 19 Johns, will be presumed never to liave been 

345 ; The Mary Stewart, 2 W. Rob. Adm. stamped ; and no action can be maintained 

R. 244 ; [ * Lea c. I'olk County Copper Co., by proof of its contents. Arbon v. Fussell, 

21 How. U. S. 493; Cooper v. Granberry, 9 Jur. n. s. 753,-Exch.] 



CHAP. IV.] 



PRESUMPTIVE EVIDENCE. 



47 



presumption is raised, from the nature of the sulycct in question. 
Thus, where the issue is ui)on tlie life or death of a person, once 
shown to liave been hving, the burden of proof lies upon the party 
W'ho asserts the death. ^ But after the lapse of seven years, with- 
oiit intelligence concerning the person, the presumption of life 
ceases, and the burden of proof is devolved on the other party .^ 
This period was inserted, upon great deliberation, in the statute 
of bigamy,^ and the statute concerning leases for lives,* and has 
since been adopted, from analogy in other cases.^ But where the 



presumption of life conflicts with that of innocence^, the latter is 
generally allowed to prevail.^ Upon an issue of the life or death 
"of a party, as we have seen in the like case of the presumed pay- 
ment of a debt, the jury may find the fact of death from the lapse 



1 Throijmorton v. Walton, 2 Roll. E. 
461 ; Wilson r. Hodges, 2 East, 313 ; Bat- 
tin V. Bio-clow, 1 Pet. C. C. R. 452; Gille- 
land V. Martin, 8 McLean, 490. Vivere 
etiam usque ad centum annos quilibet 
prcesumitiu-, nisi probetur mortuus. Cor- 
pus Juris Glossatum, torn. 2, p. 718, note 
(q) ; Mascard. De Prob. vol. 1, Concl. 103, 
n. 5. [*In tracing title identity of name is 
prima facie evidence of identity of person ; 
Gitt (•. Watson, 18 Mo. Rep. 274.] 

- Hopewell r. De Pinna, 2 Campb. 113 ; 
Loring v. Steineman, 1 Met. 204 ; Cofer v. 
Thermond, 1 Kelly, 538. This presump- 
tion of death, from seven years' absence, 
was questioned by tlie Vice-Chancellor of 
England, who said it was " daily becoming 
more and more untenable ;" in Watson v. 
England, 14 Sim. 28 ; and again in Dow- 
ley V. Winfield, Id. 277. But the correct- 
ness of his remark is doubted in 5 Law 
Mag. X. s. 338, 339 ; and the rule was 
subsequently adhered to by the Lord 
Chancellor in Cuthbert v. Purrier, 2 Phill. 
199, in regard to the capital of a fund, the 
income of which was l)cqueathed to an 
absent legatee ; thotigh he seems to have 
somewhat rehixed the rule in regard to 
the accumulated dividends. See 7 Law 
Rep. 201. The presumption in such cases 
is, that the person is dead ; but not that 
he died at the end of the seven years, nor 
at any other particular time. Doe v. Ne- 
pean, 5 B. & Ad. 86; 2 INI. & W. 894. 
The time of the death is to be inferred by 
the jury, from the circmnstances. Rust 
V. Baker, 8 Sim. 443 ; Smith v. Knowlton, 
II N. Hamp. 191; Doe v. Flanagan, 1 
Kelly, 543 ; Burr v. Sim, 4 Whart! 150 ; 
Bradley i'. Bradley, Id. 173 [Whiteside's 
Appeal, 23 Penn. St. R. 114; Spencer v. 
Roper, 13 Ircd. 333 ; Primm i\ Stewart. 7 
Texas, 178. See also Creed, in re, 19 



9 



Eng. Law & Eq. 119 ; Mcrritt v. Thomp- 
son, 1 Hilton, 550] . [ * Where a party who 
takes under a will has not been heard of 
for seven years, the testator having died 
after three years had elapsed, and adver- 
tisement issued on the death of the testa- 
tor failing to produce any information, 
such legatee must be assumed to have 
survived the testator, and cannot be pre- 
sumed to have died at any particular 
period during the seven years. Dunn v. 
Snowdon, 11 W. R. 160. " A young sailor 
w;\s last seen in the summer of 1840, 
going to Portsmouth to embark. His 
grandmother died in March, 1841. It was 
presumed that he was the survivor. Tin- 
dall, in re, 30 Beav. 151.] 

3 1 Jac. 1, c. 11. 

* 19 Car. 2, c. 6. 

s Doe V. Jesson, 6 East, 85; Doe v. 
Deakin, 4 B. & Aid. 433 ; King v. Pad- 
dock, 18 Johns. 141. It is not necessary 
tliat the party he proved to be absent from 
the United States ; it is sufficient, if it 
appears that he has been absent for seven 
years, from the particular state of lis 
residence, without having been heard from. 
Isewmaii v. Jenkins, 10 Pick. 515 ; Innis 
r. Cami)bcll, 1 Rawle, 373 ; Spurr v. 
Trimble, 1 A. K. 3Iarsh. 278 ; Wambough 
r. Shenk, 1 Penningt. 167 ; Woods r. 
Woods, 2 Bay, 476 ; 1 N. Y. Rev. Stat. 
749, ij 6. 

B Rex V. Twyning, 2 B. & Aid. 885; 
supra, § 35. But there is no absolute 
presumption of law as to the continuance 
of life ; nor any absolute presumption 
against a person's doing an act because 
the doing of it would be an offenc<^ against 
the law. In every case the circumstances 
must be considered. Lapsley i". Grierson, 
1 H. L. Ca. 498. 



48 LAW OF EVIDENCE. [PART I, 

of a shorter period than seven years, if other circumstances 
concur; as, if the party sailed on a voyage which should long 
since have been accomplished, and the vessel has not been heard 
from.^ But the presumption of the common law, independent of 
the finding of the jury, does not attach to the mere lapse of time, 
short of seven years,^ unless lettei:s of administration have been 
granted on his estate within that period, which, in such case, are 
conclusive proof of his death.^ [* The inquiry in regard to pre- 
sumptions affecting questions depending upon the continuance of 
life have been a good deal considered in the American, as well as 
the English courts. Thus it has been held that no presumption of 
death, or marriage, or the birth of children, or the reverse, can be 
made. But if events are remote, slight proof may satisfy a jury. 
And, ordinarily, in the absence of evidence to the contrary, the 
continuance of life will be presumed, to the common age of man.'* 
The fact that one sailed in a ship never heard from, after a con- 
siderable period, and the payment of the amount insured upon her 
as of a total loss, is good ground to presume his death. ^J 

§ 42. On the same ground, a partnership, or other similar rela- 
tion, once shown to exist, is presumed to continue, until it is 
proved to have been dissolved.*^ And a scisi7i, once proved or 
admitted, is presumed to continue, until a disseisin is proved.'^ 
The opinions, also, of individuals, once entertained and expressed, 
and the state of mind, once proved to exist, are presumed to re- 
main unchanged, until the contrary appears. Thus, all the mem- 
bers of a Christian community being presumed to entertain the 
common faith, no man is supi)osed to disbelieve the existence and 
moral government of God, until it is shown from his own declara- 
tions. In like manner, every man is presumed to be of sane 

1 In the case of a missing ship, hound Green v. Brown, 2 Stra. 1199; Park on 

from Manilla to I^ondon, on which the un- Ins. 433. 

derwritcr.^ hail voluntarily paid the amonnt ^Newman v. Jenkins, 10 Pick. 515. 

insured, the death of those on board was Tlie prochictlon of a will, with proof of 

presumed by the Prerogative Court, after payment of a legacy under it, and of an 

an absence of only two years, and admin- entry in the register of burials, were held 

istratiou was granted accordingly. /" re sufficient evidence of the party's death. 

Huttoii, 1 Curt. 595. See also Sillick v. Doe /•. I'eufold, 8 C. & P. 53G. 
Booth, 1 y. & Col. N. C. 117. If tlie per- •■* [*ytevens v. IVIcXamara, 36 Maine 

son was unmarried when he went abroad Eep. 170. 

and was last heard of, the presum])tion of " Main, in re, 1 Sw. & Tr. 11. See 

his death carries with it the presumption also Norris, in re, Id. G.] 
that he died without issue. Kowe i\ Has- " Alderson v. Clay, 1 Stark. R. 405; 2 

land, 1 W. Bl. 404; Doe v. Griffin, 15 Stark Evid. .590, 688 [*Eames v. Eames, 

East, 2'.t3. 41 N. H. 177]. 

- Watson V. King, 1 Stark. R. 121 ; " Brown v. ICing, 5 Met. 173. 



CHAP. IV.] PRESUMPTIVE EVIDENCE. 49 

mind, until the contrary is shown ; but if derangement or imlje- 
cility be proved or admitted at any particular period, it is pre- 
sumed to continue, until disproved, unless the derangement was 
accidental, being caused by the violence of a disease.^ [* But those 
presumptions are rather matters of fact than of law ; or at most 
partly of law, and partly fact.^] 

§ 43. A spirit of comity, and a disposition to friendly intercourse, 
are also presumed to exist among nations, as well as among 
individuals. And in the absence of any positive rule, aiSirming or 
denying, or restraining the operation of foreign laws, courts of 
justice presume the adoption of them by their own government, 
unless they are repugnant to its policy, or prejudicial to its interest.^ 
The instances here given, it is believed, will sufficiently illustrate 
this head of presumptive evidence. Numerous other examples and 
cases may be found in the treatises already cited, to which the 
reader is referred."* 

§ 44. PresUxMPtions of Fact, usually treated as composing the 
second general lieact of presumptive evidence, can hardly be said, 
with propriety, to belong to this branch of the law. JTliex^are ^ in 
truth, but mere arguments, of which the major premise is not 
a rule of law ; they belong equally to any and every subject- 
matter ; and are to be judged by the common and received tests 
of the truth of propositions, and the validity of arguments. They 
depend upon their own natural force and efficacy in generating 
belief or conviction in the mind, as derived from those connections, 
which are shown by experience, irrespective of any legal relations. 
They differ from presumptions of law in this essential respect, 
that while those are reduced to fixed rules, and constitute a branch 
of the particular system of jurisprudence to which they belong, 
these merely natural presumptions are derived wholly and directly 
from the circumstances of the particular case, by means of the 
common experience of mankind, without the aid or control of any 
rules of law whatever. Such, for example, is the inference of 
guilt, drawn from the discovery of a broken knife in the pocket 

1 Attorney-General v. Parnther, 3 Bro. vol. 2, § 369-374, tit. " Insanity," and 

Ch. Ca. 443 ; Peaslee r. Bobbins, 3 jMet. §§ 689, G90.] 

164; Hix v. Whittemore, 4 Met. 545 2 [*Sutton v. Sadler, 3 C. B. x. s. 87.J 
[Perkins i'. Perkins, 39 N. H. 163]; 1 » Bank of Ausnsta r. Earle, 13 Peters, 

CoUinson on Lunacy, 55; Shelford on 519; Story on Confl. ofLaws, §§ 3b, 37. 
Lunatics, 275 ; 1 Hal. P. C. 30 ; Swinb. ■* See Mathews on Presumptive Evid. 

on WiUs, Part II. § iii. 6, 7. [See post, ch. 11 to ch. 22; Best on PresumpUons, 

passim. 



50 LAW OF EVIDENCE. [PART I. 

of the prisoner, the other part of the blade bchig found sticking 
in the window of a house, which, by means of such an instrument, 
had been burglariously entered. These presuniptions remain 
the same in their nature and operation, under whatever code the 
legal etfect or quality of the facts, when found, is to be decided.^ 

§ 45. There are, however, some few general propositions in 
regard to matters of fact, and the weight of testimony by the jury, 
which are universally taken for granted in the administration of 
justice, and sanctioned by the usage of the bench, and which, 
therefore, may with propriety be mentioned under this head. 
Such, for instance, is the caution, generally given to juries, to 
place little reliance on the testimony of an accomplice, unless it 
is confirmed, in some material point, by other evidence. There 
is no presumption of the common law against the testimony of an 
accomplice; yet experience has shown, that persons capable of 
being accomplices in crime are but little worthy of credit ; and 
on this experience the usage is founded.^ A similar caution is to 
be used in regard to mere verbal adynissions of a party ; this kind 
of evidence being subject to much imperfection and mistake.^ 
Thus, also, though lapse of time does not, of itself, furnish a con- 
clusive legal bar to the title of the sovereign, agreeably to the 
maxim, nullum tempus oceurrlt regi ; yet, if the adverse claim 
could have had a legal commencement, juries are instructed or 
advised to presume such commencement, after many years of 
uninterrupted adverse possession or enjoyment. Accordingly, 
royal grants have been thus found by the jury, after an indefinitely 
long-continued peaceable enjoyment, accompanied by the usual 
acts of ownership.* So, after less than forty years' possession of 
a tract of land, and proof of a prior order of council for the survey 
of the lot, and of an actual survey thereof accordingly, it was held, 
that the jury were properly instructed to presume that a patent 
had been duly issued.^ In regard, however, to crown or public 

1 See 2 Stark. Evid. 684 ; 6 Law Mag. v. Williams, 1 Ilagg. Consist. R. 304. 

370. This subject lias been very success- See infra, under the head of Admissions, 

fully illustrated by Mr. Wills, in his " Ks- § 200. 

say on the Kationale of Circumstantial * Rex v. Brown, cited Cowp. 110; 

Evidence," jiiisshii. \ The facts, from which Mayor of Kintistim v. Horner, Cowp. 102 ; 

apre>miipiinii ur inreiviire i> Tn l)e ( h-awn Kldridgc ;•. Knott, Cowp. 215; JMather v. 

must he [)n)veil hy iliiici e\iiTeiuc. aTid Trinity Church, 3 S. & K. 509; Koe v. 

nb'tlH- jiresiiined or infeiicil. DoiilI.i-- i\ Ireland, 11 East, 280; Read v. Brookman, 

Mirclieli, ;^"TemT."TTrr[ 3 T. R. 159; Goodtitle v. Baldwin, 11 

- See infra, %% 380, 381. East, 488 ; 2 Stark. Evid. 672. 

8 Earle t^. Picken, 5 C. & P. 542, note ; ^ Jackson v. McCall, 10 Johns. 377. 

Rex V. Sinmions, G C. & P. 540; Williams " Si probet possessionem excedentem me- 



CHAP. IV.] PRESUMPTITE EVIDENCE. 51 

grants, a longer lapse of time has generally been deemed neces- 
sary, in order to justify this presumption, than is considered suffi- 
cient to authorize the like presumption in the case of grants from 
private persons. 

§ 46. Juries are also often instructed or advised, in more or 
less forcible terms, to presume conveyances hettveen private indi- 
viduals, in favor of the party who has proved a right to the 
beneficial enjoyment of the property, and whose possession is 
consistent with the existence of such conveyance, as is to be 
presumed ; especially if the possession, without such conveyance, 
would have been unlawful, or cannot be satisfactorily explained.^ 
This is done in order to prevent an apparently just title from 
being defeated by matter of mere form. Thus, Lord Mansfield 
declared, that he and some of the other judges had resolved never 
to suffer a plaintiff in ejectment to be nonsuited by a term, out- 
standing in his own trustees, nor a satisfied term to be set up by 
a mortgagor against a mortgagee ; but that they would direct the 
jury to presume it surrendered.^ Lord Kenyon also said, that 
in all cases where trustees ought to convey to the beneficial owner, 
he would leave it to the jury to presume, where such presumption 
could reasonably be made, that they had conveyed accordingly.^ 
After the lapse of seventy years, the jury have been instructed to 
presume a grant of a share in a proprietary of lands, from acts 
done by the supposed grantee in that capacity, as one of the pro- 
prietors.* The same presumption has been advised in regard to 
the reconveyance of mortgages, conveyances from old to new 
trustees, mesne assignments of leases, and any other species of 

moriam hominiim, habet vim tituli et been allowed." And he cites as examples, 

privilegii, etiam a Principe. Et hajc est Lade v. llalford, Bull. N. P. 110; England 

ditferentia inter possessionem xxx. vel. xl. v. Slade, 4 T. K. G8:i ; Doe v. Sybourn, 7 

annorum, et ncm memorabilis temporis ; T. K. 2; Doe c. Hildei\ ii B. & Aid. 782; 

quia per illam acciuiritiir non directum, Doe v. Wrigbte, Id. 710. See Best on 

sed utite dominium ; per istam autem di- rresumptions, pp. 144-109. 

rectum." Mascard. De Probat. vol. 1, - Lade v. Ilolford, Bull. N. P. 110. 

p. 239, Concl. 199, n. 11, 12. ^ Doe v. Sybourn, 7 T. K. 2; Doe v. 

1 Tlie rule on this subject was stated Staples, 2 T. K. 696. The subject of the 

by Tindal, C. J., in Doe v. Cooke, 6 Bina;. presumed surrender of terms is treated at 

174, 179. " No case can be put," says he, large in Matthews on Presumpt. Evid. cli. 

"ill which- anv presumption has been 13, p. 220-2-39, and is ably expounded by 

made, except where a title has been shown. Sir Edw. Sugden, in his Treatise on A en- 

by the party who calls for the presump- dors and I'urchasers ch. xv. sec. 3,voh3, 

tion, .ffood in sulistance, but wanting some p. 24-07, lOtii ed. See also Best on Pre- 

collatcral matter, necessary to make it sumptions, § 113-122. 

_,coniplete in point of form. In such case, ■* Earrar i-. JNIerrill, 1 Greenl. 17. A 

"where the possession is shown to have been bv-law may, in like uuinner, be presumed, 

consistent with the tact directed to be pre- Bull. N. P. _211. The case of Coi-pora- 

sumed, and in such cases only, has it ever tions, 4 Co. 78 ; Cowp. 110. 



52 



LAW OF EVIDENCE. 



[part I. 



documentary evidence, and acts in pais, which is necessary for 
the support ol" a title in all other respects evidently just.^ It is 
sufficient that the party, who asks for the aid of this presumption, 
has proved a title to the beneficial ownership, and a long posses- 
sion not inconsistent therewith ; and has made it not unreasonable 
to believe that the deed of conveyance, or other act essential to 
the title, was duly executed. Where these merits are wanting, 
the jury are not advised to make the presumption.^ [* These pro- 
sumptions for the quieting of title arc not necessarily restricted 
to what may fairly be su])posed to have in fact occurred ; but 
rather, wdiat may have occurred, and seems requisite to quiet the 
title in the possessor.^] 

§ 47. The same prmciple is applied to matters belonging to the 
personalty. Thus, where one town, after being set off from 
another, had continued for fifty years to contribute annually to 
the expense of maintaining a bridge in the parent town, this was 
held sufficient to justify the presumption of an agreement to that 
effect.* And, in general, it may be said that long acquiescence in 
any adverse claim of right is good ground, on which a jury may 



1 Emery v. Grocock, 6 Madd. 54; 
Cooke r. Soltan, 2 Sim. & Stii. 154 ; Wil- 
son V. Allen, 1 Jac. & W. 611, 620; Koe 
V. Keade, 8 T. K. 118, VI2; White v. Fol- 
jambc, 11 Ves. 350; Keene v. Deardon, 
8 East, 248, 2i;C) ; Temiv v. Jones, 3 M. & 
Scott, 472; Kowe v. Lowe, 1 II. Bl. 446, 
45'J; V^an Dyck ?\ Van Bnren, 1 Caincs, 
84 ; Jackson v. Mnrray, 7 Johns. 5 ; 4 
Kent, Comm. 90, 'J I ; Gray v. Gardiner, 3 
Mass. 399 ; Knox v. Jenks, 7 Mass. 488 ; 
Society, &c. v. Yonng, 2 New Mamp. K. 
310; Colman r. Anderson, 10 Mass. 105; 
Tejepscot Proprietors v. Kanson, 14 INlass. 
145 ; Berf^en r. Bennet, 1 Caines, I ; Blos- 
som V. Cannon, 14 Mass. 177 ; Battles v. 
Holley, 6 Greenl. 145 ; Lady Dartmonth 
V. Koberts, 16 East, 334, 339 ; Livinj;ston 
V. Livingston, 4 Johns. Ch. 287. Wliether 
deeds of conveyance can be presumed, in 
cases where tlie law has made jirovision 
for their registration, has been doul)te(l. 
The point was argued, but not decided, in 
T)oe V. Hirst, 11 I'rice, 475. And sec 24 
Pick. 322. The better opinion seems to 
be that though the court will not, in snch 
case, presume the existence of a deed as a 
mere inference of law, yet the tact is open 
lor the jury to- find, as in other cases. 
See Kex v. Long Biickby, 7 East, 45 ; 
Trials per Pais, 237; Finch, 400; Valen- 
tine I'. Piper, 22 I'ick. 85, 93, 94. 



2 Doe V. Cooke, 6 Bing. 173, per Tin- 
dal, C. J. ; Doe v. Peed, 5 B. & A. 232 ; 
Livett V. Wilson, 3 Bing. 115; Schauber 
V. Jackson, 2 Wend. 14, 37 ; Hepburn v. 
Auld, 5 Cranch, 262 ; Valentine v. Piper, 
22 Pick. 85. This rule has been applied 
to possessions of divers lengths of dura- 
tion ; as, fifty-two 5-ears, Kyder r. Hatha- 
way, 21 Pick. 298 ; fif^y years, Melvin (•- 
Prop'rs of Locks, &c. 16 Pick. 137 ; 17 
Pick. 255, s. c. ; thirtv-tliree years, White 
V. Loring, 24 Pick. 319 ; thirty years, Mc- 
Nair v. Hunt, 5 Miss. 300 ; twenty-six 
years, Newman v. Studley, Id. 291 ; twen- 
ty years, Brattle-Square Ciiurcli v. Bul- 
lard, 2 Met. 363 ; but the latter period is 
held sufficient. The rule, however, does 
not seem to depend so much \ii)on the 
mere lapse of a definite period of time as 
upon all tiie circumstances, taken togeth- 
er ; the question being exclusively for the 
jury. [See also Attorney-General r. I'ro- 
prietors of Meetmg-house, &c. 3 Gray, 1, 
62-65.1 

3 [ * St. Mary's College v. Attorney- 
General, 3 Jur. N. s. 675.] 

* Cambridge v. Lexington, 17 Pick. 
222. See al.so Grote v. Grote, 10 Johns. 
402; Schauber v. Jackson, 2 Wend. 36, 
37. 



CHAP. IV.] PEESUMPTIVE EVIDENCE. 53 

presume that the claim had a legal commencement ; since it is 
contrary to general experience for one man long to contiime to 
pay money to another, or to perform any onerous duty, or to sub- 
mit to any inconvenient claim, unless in pursuance of some con- 
tract, or other legal obligation. 

§ 48. In fine, this class of presumptions embraces all the con- 
nections and relations between the facts proved and the hypothesis 
stated and defended, whether they are mechanical and physical, 
or of a purely moral nature. It is that which prevails in the 
ordinary affairs of life, namely, the process of ascertaining one 
fact from the existence of another, without the aid of any rule of 
law ; and, therefore, it falls within the exclusive province of the 
jury, who are bound to find according to the truth, even in cases 
where the parties and the court would be precluded by an estop- 
pel, if the matter were so pleaded. They are usually aided in 
their labors by the advice and instructions of the judge, more or 
less strongly urged, at his discretion ; but the whole matter is free 
before them, unembarrassed by any considerations of policy or 
convenience, and unlimited by any boundaries but those of truth, 
to be decided by themselves, according to the convictions of their 
own understanding. 

6* 



PART 11. 



RULES WPIICH GOVERN 



PRODUCTIO:^^ OF TESTIMONY. 



[65] 



PAKT II. 

OF THE RULES WHICH GOVERN THE PRODUCTION OF 
TESTIMONY. 



CHAPTER I. 

OP THE RELEVANCY OF EVIDENCE. 

["* § 49. The appropriate province of the court and Jury in the trial of matters of fact. 
50. Classification of the- subject. 
61. The proof must be confined to tlie point in issue. 

51 a. Evidence receivable, although but remotely tending to prove the issue. 
52. Proof of collateral facts not admissible even to discredit witness. 

63. A wide range is allowed in proof of knowledge or intent. 

53 a. So also in regard to acts of possession affecting title to land. 

64. General evidence admissible in regard to character. 

65. But this restricted to a very few actions where good character is in issue.] 

§ 49. In trials of fact, witlioiit the aid of a jury, the question of 
the admissibility of evidence, strictly ^jDcaking, can seTdom be 
raised ; since, whatever be the ground of objection, the evidence 
objected to must, of necessity, be read or heard by the judge, in 
order to determine its character and value. In such cases, the 
only question, in effect, is upon the sufficiency and weight of the 
evidence. But in trials by jury, it is the province of the presiding 
judge to determine all questions on the admissibility of evidence 
to the jury ; as well as to instruct them in the rides of law, by 
which it is to be weighed. Whether tlicre be any evidence or not 
is a question for the judge; wliether it is sufiicient eyide^ice is^ a^ 
question for the jury.^ If the decision of the question of admissi- 



1 Per Buller, J., in Carpenter v. Hay- ceed," said he, " to the merits of this case, 

ward, Doug. 374. And see Best's Priuci- I wish to say a few words ujion a point, 

pies of Evidence, § 70-86. [And Cliand- suggested by the argument of the learned 

ler V. Von Koeder, 24 How. U. S. 224.] counsel for the ])risoiier, ujjon which I 

The notion that the jury liave tiie right, have had a decided opinion during my 

in any case, to deterniine questions of law, whole professional life. It is, that in crim- 

was strongly denied, and their province inal cases, and especially in cajntal oases, 

defined by Story, J., in the United States the jury are the judges of the law as well 

r. Battiste, 2 Sumn. 243. "Before I pro- as of the fact. Mv opinion is, that the 

[57]- 



58 



LAW OF EVIDENCE. 



[part II. 



bility depends on the decision of other questions of fact, such as 
the fact of interest, for example, or of the execution of a deed, 



jury are no more judges of the law in a 
capital or other criminal case, upon a plea 
of not guilty, than they are in every civil 
case tried upon the general issue. In each 
of these cases, their verdict, when general, 
is necessarily compounded of law and 
of fact, and includes both. In each they 
must necessarily determine the law, as 
well as the tiict. In eacli, they have the 
physical ])ower to disregard the law, as 
laid down to them by tlie court. But I 
deny, tlult, in any case, civil or criminal, 
they have the moral right to decide the 
law according to their own notions or 
pleasure, (^u the contrary, I hold it the 
most sacred constitutional right of every 
party accused of a crime, that the jury 
should respond as to the facts, and the 
court as to the law. It is the duty of the 
court to instruct the jury as to the law ; 
and it is the duty of the jury to follow 
the law, as it is laid down l)y the court. 
This is the right of every citizen ; and it is 
his only protection. If the jury were at Ub- 
erty to settle the law for themselves, the 
effect would be, not only that tlie law itself 
■would be most uncertain, from the different 
views which different juries might take of 
it ; but, in case of error, there would be no 
remedy or redress by the injured party ; 
for the court would not have any right to 
review the law, as it had been settled by 
the jury. Indeed, it would be almost im- 
practicable to ascertain what the law, as 
settled by the jury, actually was. On the 
contrary, if the court should err, in la^^ing 
down the law to the jury, there is an ade- 
quate remedy for the injured party, by a 
motion for a new trial, or a writ of error, 
as the nature of tlie jurisdiction of the 
particular court may require. Every per- 
son accused as a criminal lias a right to ho 
tried according to the law of the land, the 
fixed law of the land, and not by the law 
as a jury may understand it, or choose, 
from wantonness or ignorance, or acciden- 
tid mistake, to interpret it. If I thought 
that the jury were the proper judges of 
the law in criminal cases, I should hold it 
my duty to abstain from the responsibility 
of stating the law to them upon any such 
trial. But believing as I do, that every 
citizen has a right to be tried by tiie law, 
and according to the law; that it is his 
privilege and truest shield against oppres- 
sion and wrong ; I feel it my duty to state 
my views fully and ojienly on the present 
occasion." The same opinion as to the 
province of the jury, was strongly ex- 
pressed by Lord C. J. Best, in Levi v. 
Mylne, 4 Bing. 195. 



The same subject was more fully con- 
sidered in The Commonwealth v. Porter, 
10 Met. 2(i3, which was an indictment for 
selling intoxicating liquors without license. 
At the trial the delendant's counsel, being 
about to argue the questions of law to the 
jury, was stopjied by the judge, who 
ruled, and so instructed the jury, that it 
was their duty to receive the law from the 
court, and implicitly to follow its direction 
upon matters of law. Exceptions being 
taken to this ruling of the juiige, the point 
was elaborately argued in bank, and fully 
considered by the com-t, whose judgment, 
delivered by Shaw, C. J., concluded as fol- 
lows : " Un the wliole subject, the views 
of the court may be summarily expressed 
in the following propositions : That, in all 
criminal cases, it is competent for the jury, 
if they see fit, to decide upon all questions 
of fact embraced in the issue, and to refer 
the law arising thereon to the court, in the 
form of a special verdict. But it is op- 
tional with the jury thus to return a spe- 
cial verdict or not, and it is within their 
legitimate province and power to return a 
general verdict, if. they see fit. In thus 
rendering a general verdict, the jury must 
necessarily jmss upon the whole issue, 
compomided of the law and of the fact, 
and they may thus incidentally pass on 
questions of law. In forming and return- 
ing such general verdict, it is within the 
legitimate authority and power of the jury 
to decide definitively upon all questions 
of fact involved in the issue, according to 
their judgment, upon the force and effijct 
of the competent evidence laid before 
them ; and if in the progress of the trial, 
or in the summing-up and charge to the 
jury, the court should express or intimate 
any opinion upon any such question of 
tact, it is within the legitimate province 
of the jury to revise, reconsider, and de- 
cide contrary to such opinion, if, in their 
judgment, it is not correct, and warrant- 
ed by the evidence. But it is the duty of 
the court to instruct the jury on all ques- 
tions of law which appear to arise in the 
cause, and also upon all questions ]iertinent 
to the issue, upon which either party may 
request the direction of the court upon 
matters of law. And it is the duty of the 
jury to receive the law from the court, 
and conform their judgment and decision 
to such instructions, as far as they under- 
stand them, in a])i)lying the law to the 
facts to be found by them ; and it is not 
within the legitimate province of the jury 
to revise, reconsider, or decide contrary to 
such opinion or direction of the court in 



riTAr.Lj 



THE RELEVANCY OF EVIDENCE. 



tlicRo preliminary questions of fact are, in llic first instance, to l)e 
tried by the judge ; though he may, at his discretion, take the 



matter of law. To tliis duty jurors are 
bn'Uid 'ly 11 strong social and moral obli^a- 
tii.n, en brcetl by the sanction of an oalli, to 
On; bav e extent and in the t^aine manner 
.- tin; are conscientiously hound to de- 
cide ai questions of tiict according to the 
( ni'-:, e. It is no valid ohjection to this 
\ u vv the duties of jurors, that they are 
not ai -nable to any leg;d i)rosecution for 
a wroi ; decision in any matter of law ; 
i' 111 IV arise from an lionest misUike of 
j I'l ! ;nt, in their aiiiireiiension of the 
r ill .- id principles of law, as laid down 
1 \ I. • court, especially in perplexed and 
coiir ' ;ate(i cases, or ti-om a mistake of 
jiuh' ;nt in applying them honestly to 
tlif K ts proved. The same reason ap- 
]i!' the decisions of juries upon ques- 

I of fact clearly within their legiti- 

i: jiowers; they are not punishable for 
('. . ulii:g wrong. The law vests in them 
I' power to judge, and it will presume 
ley judge honesth^, even though 
nay be reason to apprehend that 
judge erroneously ; they cannot, 
re, be held responsilile for any such 
n, unless upon evidence which 
establishes proof of corruption, or 
.'ilful violation of duty. It is within 
itimate power, and is the duty of 
u-t, to superintend the course of the 
to decide upon the admission and 
)n of evidence ; to decide upon the 
any books, papers, documents, 
or works of supposed authority, 
may be offered upon either side ; to 
upon all collateral and incidental 
dings ; and to confine parties and 
•I to the matters within the issue. 
" jury have a legitimate power to 
I' a general verdict, and in that case 
ass upon the whole issue, this court 
opinion that the defendant has 
., by himself or his counsel, to ad- 
'■ the jury, under the general sujierin- 
tendence of the court, uj)on all the mate- 
rial ipi 'stions involved in the issue, and 
to this extent, and in this connection, to 
address the jury upon such questions of 
law as come within the issue to be tried. 
Such adih'ess to the jury, upon questions 
of law embraced in the issue, by the de- 
fendant or his counsel, is warranted by the 
long practice of the coiu-ts in this Com- 
monwealth in criminal cases, in which it 
is witliin the established authority of a 
jury, if they see fit, to return a general 
verdict, embracing the entire issue of 
law and fact." 10 Mfet. 285-287. See 
also the opinion of Lord Mansfield to the 
same efiect, in Rex v. The Dean of St. 



Asaph, 21 How. St. Tr. 10.']0, 1040; and 
of Mr Ilargrave, in his note, 27i"). to Co. 
Lit. 155, where the earlier authorities jue 
cited. The whole subject, with particu- 
lar reference to criminal cases, was re- 
viewed with great learning and ability iiy 
Gilchrist, J., and again by Parker, C. J., 
in Pierce's case, 1:5 N. Hamp. 536, where 
the right of the jury to judge of the law 
was denied. And see, accordingly, The 
People V. Price. 2 Barb. S. C. K. 5C.(> ; 
Townsend v. The State, 2 Blackf. 152 ; 
Davenport v. The Commonwealth, 1 
Leigh, R. 588 ; Commonwealth v. Garth, 
3 Leigh, R. 7G1 ; Montee r. The Connnon- 
wealth, 3 J. J. IMarsh. 150 ; Pennsvlvania 
f. Bell, Addis. ]{. 1(10, IGl ; Common- 
wealth c. Abbott, 13 Jlet. 123, 124 ; Hardy 
V. The State, 7 Misso. R. 607; Snow's 
case, 6 Shepl. 346, stwb. contra. [In SUite 
V. Croteau, 23 Vt. (8 Washb.) 14, the Su- 
preme Court of Vermont, Bennett, J., 
dissenting, decided that in criminal cases 
the jury has the right to determine the 
whole matter in issue, the law as well as 
the tact ; and the same rule is established 
in several other states. The legislature of 
Massachusetts, in 1855 (Acts, 1855, ch. 
152), enacted, " that in iUl ti-ials for crimi- 
nal oflences, it shall be the duty of the 
jm-y to try, according to estabhshed forms 
and principles of law, all causes which 
shall be committed to them, and after hav- 
ing received the instructions of the court, 
to decide at their discretion, by a general 
verdict, both the fact and law involved in 
the issue, or to find a special verdict at 
their election ; but it shall be the duty of 
the court to superintend the course of tiie 
trials, to decide upon the admission and 
rejection of evidence, and npon all ques- 
tions of law raised dm-ing the trials, and 
upon all collateral and incidental proceed- 
ings, and also to charge the jury and to 
allow bills of exception, and the court may 
grant a new trial in cases of conviction." 
This act has been before the Supreme Ju- 
dicial Court for exposition and constnic- 
tion upon excejitions taken to the ruling 
of the court below in tiie trial of an in- 
dictment against a defendant for being a 
C(mmion seller of intoxicating liquors, juid 
the court has decided, as apjiears by a 
note of their decision in the Monthly Law 
Reporter for Sejnember, \bbl ((.onnnon- 
wealth v. Anthes, 20 Law Reporter, 2U8), 
as follows : " I'pon the question whether 
this statute purports to change the law as 
alreadv existing and recognized in Com- 
monwealth V. Porter. 10 Met. 203, the 
coiu-t were equally divided. But by a 



GO 



LAW OF EVIDENCE. 



opinion of tlie jury upon them. But where the question i . mixed, 
consisting of law and fact, so intimately blended as uot to )e easily 



1 



majority of the court it was held, that if 
such c!iaiii;o of the hiw is conteiiiplateil 
by the statute, tlie same is void." S. C. 5 
Gray, 1^5. [ * The question of the right 
of the jury to jud^e of the hiw in criminal 
cases has been a good deal discussed, both 
in England and America, and very dillerent 
' conclusions reached by judges of nearly 
equal eminence. The opinion of Hall, J., 
in State v. Croteau, supra, u\ay be consulted 
as a very fair and able exposition of the ar- 
gument and authoritj' in tavor of the oppo- 
site view from that maintained in the pre- 
ceding portion of this note. For ourselves, 
we have always boon content not to raise 
any such issue with tlie jury in criminal 
cases, lest they might be tliereby provoked 
to abuse tlieir just discretion in the appli- 
cation of the law to the facts. Our own 
views are brieflv presented in State v. 
McDonnell. 32 Vt. Rep. 531-533.] 

The application of this doctrine to par- 
ticular cases, though generally uniform, is 
)iot perfectly so where the question is a 
mixed one of law and fact. T hus the 
question o^ probable cause belongs "to the 
court; but where itis a niixed questiorrciT 
law and fact intimately blended, as, for 
ex^ple, where the party's belli'/ is a raa- 
tqj^l element in the question, it has been 
held right to leave it to the jury, with' 
proper instructions as to the law. Mc- 
Donald V. Rooke, 2 Bing. N. C.217; Had- 
drick V. Raine, 12 Ad. & El. 267, n. s. 
And see Taylor t-. Willans, 2 13. & Ad. 
845; 6 Bing. 183; post, vol. 2, § 454. 
The judge has a right to act upon all the 
uncontradicted facts of the case ; but 
wiiere the credibility of witnesses is in 
([uestion, or some material fact is in doubt, 
or some inference is attem])ted to be drawn 
from some fact not distinctly sworn to, 
the judge ougiit to submit the question to 
the jurv. I\iitehel ?'. Williams, 11 M. & 
W. 2l()', 217, per Alderson, B. 

In trosp.-i--; ill l"iiils iisjinrfiitis, tlio l'"i"t 
Jides of tlio iloffmlant in takin.u tho guniL, 
and the reas()iiai)loness of his hoiief that 
lie was executing his duty, and of his sus- 
picion of the plaintiff, are questions for 
the jury^. Wedge v. Berkeley, 6 Ad. & El. 
6(53 ; llazeldine v. Grove, 3 Ad. & El. 997, 
N. s., Hughes V. Buckland, 15 M. & W. 
346. In a question of jiediijree, it is for the 
judge to decide whether the person 
whose declarations are ottered in evidence 
was a member of the ijimily, or so related 
as to be entitled to be heard on such a 
question. Doe v. Davies, 11 Jur. 607 ; 10 
Ad. & El. 314, N. 8. 



licn- 



The question, what are J/suaZ yn-'-i 
a deed, is a question lor tlie jur/. an 
matter of construction for the C( urt. 
nett V. Womack, 3 C. & P. 96. 

In regard to reasonableness of time, care, 
skill, and the like, there seems to have 
been some diversity in the api'lication of 
the principle; but it is comeded that, 
" whether there has been, in aiy jiarlicu- 
lar case, reasonable dihgence u;~ed, or 
whether unreasonable delay hai occnnod, 
is a mixed question of law and fact, ■■• to 
decided by the jury, acting um or 
rection of the judge, upon the \y.. 
circumstances of each case." .Vloni '■ i 
Rawdon, 9 Bing. 416, per Tin all, C. J.; 
Nelson V. Patrick, 2 Car. & t . 641, i>er 
Wilde, C. J. The judge is to aform the 
jury as to the degree of diligenc. . orcareor 
skill which the law demands of the I'arty, 
and what duty it devolves on lii n. and the 
jury are to find whether that dut *■ iias boon 
done. Hunter v. Caldwell, llJi r. 770 ; 10 
Ad. & Kl. 69, N. s. ; Burton v. G riffiths, 11 
M. & W. 817 ; Facey v. llurdo n, 8 B. & 
C. 213 ; Stewart v. Cauty, 8 M. i. W. 160; 
Parker v. Palmer, 4 B. & Aid. 387 ; Pitt 
V. Shew, Id. 206 ; Mount v. ] .arkins, 8 
Bing. 108; PhilUps v. Irving, 7 -M. &4Gr. 
325; Reece v. Rigby, 4 B. & A! ' wj. 
But where the duty in regard '" iun- is 
established by uniform usage 
rule is well known ; as in th 
notice of the dishonor of a hi' 
where the jjarties live in the sr 
or of the duty of sending si 
by the next post, packet, or < 
or of the reasonable hours < 
hours of the day, within which 
be presented, or goods to be di 
the like ; in such cases, the t 
fact being proved, its reasonabli icssis set- 
tled by the rule, and is decla ed by the 
judge. See Story on Bills, § 2:jr-2'H, 
338, 349 ; post, vol. 2, §§ 178, 179, 186- 
1M8 [Watson v. Tarplev, 18 Iiow. U. S. 
517]. . 

Whether by the word " month," in a 
contract, is meant a calendar or a lunar 
month, is a question of law ; but whether 
parties, in the particular case, intended to 
use it in tiie one sense or the other, is a 
question for the jury, upon the evidence 
of circumstances in the case. Simpson v. 
Margitson, 12 Jur. 155; Lang v. Gale, 1 
M. & S. Ill ; Hutchinson v. Bowker, 5 
M. & W. 535 ; Smith v. Wilson, 3 B. & 
Ad. 728; Jolly v. Young, 1 Esp. 186; 
Walker v. Hunter, 2 M. Gr. & Sc. 324. 



and the 
case of 



' ijI 16. iO 

veied, or 

le of the 



CHAP. I.] THE RELEVANCY OF EVIDENCE. C,^ 

susccptiljle of separate decision, it is siiUniitlod to the jury, wlio 
are first instructed Ijy the judge in the i»rinciiilcs and rules ot" h\\\\ 
by which they arc to be governed in finding a verdict; and thes- 
instructions they are bound to follow. ^ If the genuineness of a 
deed is tiie fact in question, the preliminary proof of its execution, 
given before the judge, does not relieve the party offering it from 
the necessity of proving it to the jury.^ The judge only decides 
whether there is, primd facie, any reason for sending it at all to 
the jury.^ 

§ 50, The production of evidence to the jury is governed by CCT^ 
tain principles, which may be treated under four general heads 
or rules. The first of these is, that the evidence must correspond 
with the allegations, and be confined to the point in issue. The 
second is, that it is suflficient, if the substance only of the issue be 
proved. The tliird is, that the burden of proving a proposition, or 
issue, lies on the party holding the affirmative. And i\\Q fourth is, 
that the best evidence of which the case, in its nature, is suscc})- 
tible, must always be produced. These we shall now consider in 
their order. 

§ 51. First. The pleadings at common law are composed of the 
written allegations of the parties, terminating in a single proposi- 
tion, distinctly affirmed on one side, and denied on the other, call^ 
the issue. If it is a proposition of fact it is to be tried by the jury, 
upon the, evidence adduced. And it is an established rule, which 

1 1 Stark. Evirl. 510, 519-520 ; Hutch- 1845, p. 27-44. [It is tlie province of tlic 

inson v. Bowkor, 5 IM. & W. 5:15 ; Wil- jmltre who presides at the trial to decide 

lianis V. Bvnie, 2 N. & P. IS'J ; I^IcDonald all questions on the adnlis^ibility of evi- 

r. Kooke,'2 Einfr. N. C. 217; James v. dence. It is also his province to decide 

Phelps, 11 Ad. & El. 483; 3 P. & Y). 231, anv preliminary questions of lact, howev- 

8. c. ; Panton i-. Williams, 2 Ad. El. IGU, er intricate, the solution of which may be 

N. 8. ; Townsend v. Tlie State, 2 Blackf. necessary to enable liim to determine tlie 

151; Montjiomerv !-. Oliio, 11 Ohio R. other question of admissibility. And his 

' 424. Questions of interpretation, as well decision is conclusive, unless he saves the 

as of consh-uction of written instruments, question for revision by the full court, on 

are for the court alone. Jnfru, § 277, note a report of the evidence, or counsel bring 

(1). But w nere a doubt as to tlie applica- up the question on a bill of exceptions 

tion of the descriptive portion of a deed to which contains a statement of the ^evi- 

external objects arises from a latent ambi- dence. (Jorton v. IlacUell. 9 Ciish. 511; 

guitv,and is therefore to be solved by parol Bartlett v. Smitli, 11 IMees. & Wels. 4S5. 

evidence, the question of intention is ne- Thus the question wliether the application 

cessarilv to be determined by the jury, to a justice of the peace, under a statute. 

Eeed i'.' Proprietors of Locks, &c., 8 How. to call a meetini; of tlie iiroprietors ot a 

S. C. R. 274 [Savignac v. Garrison, 18 lb. meelinji-house, was sifincd by live at least 

13(5 1 of such proprietors, as preliminary to tlie 

- Ross V. Gould, 5 Greenl. 204. question of tlie admissibility of tlie rcc- 

8 The subject of the functions of the ords of such meetinsr, is for the jud;je. and 

judsc as distinjiuislied from those of the not for the jury. Gorton v. Hadsell, ubi 

jury, is fully and ably treated in an arti- supra.] 
cle in the Law Review, No. 3, for May, 



62 LAW OF EVIDENCE. [PART IT. 

we state as the first rule, governing in the production of cvi- 
dence , that the evidence offered must correspond with the allegationSj 
and he conjinedjo thejMJint in i ssue} This rule supposes the alle- 
gations to be material and necessary. Surplusage, therefore, need 
not be proved ; and the proof, if offered, is to be rejected. The 
term surplusage comprehends whatever may be stricken from the 
record, without destroying tlie plaintiff's riglit of action ; as if, for 
example, in suing the defendant for breach of warranty upon the 
sale of goods, he should set forth, not only that the goods were not 
such as the defendant warranted them to be, but that the defendant 
tvell hneiv that they were not.^ But it is not every immaterial or 
unnecessary allegation that is surplusage ; for if the party, in stat- 
ing his title, should state it with unnecessary particularity, he 
must prove it as alleged. Thus, if, in justifyhig the taking of 
cattle damage-feasant, in which case it is sufficient to allege that 
they were doing damage in his freehold, he should state a seisin in 
fee, which is traversed, he must prove the seisin in fee ;^ for if this 
were stricken from the declaration, the plaintiff's entire title would 
be destroyed. And it appears that in determining the question, 
whether a particular averment can be rejected, regard is to be had 
to the nature of the averment itself, and its connection with the 
substance of the charge, or chain, rather than to its grammatical 
collocation or structure.* 

§ 51a. It is not necessary, however, that the evidence should 
bear directly upon the issue. It is admissible if itjm^g to prove. 
the issue, or constitutes a link in the chain of proof j although, 
alone, it might not justify a verdict in accordance with it.^ Nor is 
it necessary that its relevancy should appear at the time when it is 

1 See Best's Principles of Evidence, Lake v. I\Iiimford, 4 Sm. & Marsli. 312 ; 
§ 229-24'J. [*Tlic reason for this rule, Belden v. Lamb, 17 Conn. 441. [* Tarns 
and the necessity for a strict adherence to v. Bullitt, ;J5 Penn. St. oOy ; Schuchardt 
it, are well exi)lained and illustrated in v. Aliens, 2 Wallace, U. S. 859 ; Tucker v. 
Malcomson v. Clayton, 13 Moore, V. C. Peaslee, 3(3 N. II. 167.] Where the plain- 
C. 198. ] tiff's witness denied the e.xistence of a 

2 Williamson v. Allison, 2 East, 446 ; material fact, and testified that persons 
Peppin V. Solomons, 5 T. R. 406 ; Brom- connected with the jilaintiff had offered 
field I'. Jones, 4 B. & C. 380. liiui money to assert its e.xistence; the 

^ Sir Erancis Leke's case, Byer, 365 ; plaintirt' was permitted, not only to prove 

2 Saund. 206 a, note 22 ; Stephen on the fact, but to disprove the subornation, 

Pleading, 261, 262 ; Bristow v. Wright, on the ground that this latter fact had 

Uoug. 665 ; Miles v. Sheward, 8 East, 7, become material and relevant, inasmuch 

8, 9; 1 Smith's Leading Cases, 328, note, as its truth or falsehood may fairly influ- 

* 1 Stark. Evid. 386. ence the belief of the jury as to the whole 

s McAllister's case, 11 Shepl. 189; case. Melhuish v. Collier, 15 Ad. & El. 

Haughey v. Strickler, 2 Watts & Serg. 878, N. s. 
411; Jones v. A'unzandt, 2 McLean, 596; 



CHAP. I.] THE RELEVANCY OF EVIDEN'CE. 63 

ofTercd ; it l)cing tlic usual course to receive, at any proper and 
convciiieut stage of the trial, in the discretion of tlie judge, any 
evidence which the counsel shows will be rendered material by 
other evidence, winch he undertakes to produce. If it is not sub- 
sequently thus connected with the issue, it is to bo laid ou t of tho 



case.^ 

§ 52. This rule excludes all evidence of collateral facts, or those 
which are incapable of affording any reasonable presumption or 
inference as to the principal fact or matter in dispute ; and the 
reason is, that such evidence tends to draw away the minds of tho 
jurors from the point in issue, and to excite prejudice, and mislead 
them ; and moreover the adverse party, having had no notice of 
such a course of evidence, is not prepared to rebut it.^ Thus, 
where the question between landlord and tenant was, whether the 
rent was payalde quarterly, or half-yearly, evidence of the mode in 
which other tenants of the same landlord paid their rent was held 
inadmissible.-^ And where, in covenant, the issue was whether 
the defendant, who was a tenant of the plaintiif, had committed 
waste, evidence of bad husbandry, not amounting to waste, was 
rejected.* So, where the issue was, whether the tenant had per- 
mitted the promises to be out of repair, evidence of voluntary 
waste was held irrelevant.^ This rule was adhered to, even in the 
cross-examination of witnesses ; the party not being permi tted, as 
will be shown hereafter,*' to ask the witness a question Jn^rcgard 
to a matter not relevant to the issue, for the purpose of afterwards 
contradicting him.'^ 

1 McAllister's case, supra; Van Buren apparently irrelevant, if he will undertake, 
r. Wells, rJ Wend. 203 ; Crenshaw v. afterwards to sliow its relevancy, hy other 
Davenport, 6 Ala. o'.iO ; 'L'nzzlo r. Harclav, evidence. Haigh v. Belcher, 7 C. &, P. 
Id. 407 ; Abnev r. Kin-rsland, 10 Ala. 3o5 ; 339. 

Yeatman v. Hart, 6 Humph. 375. [*In ^ Carter v. Tryke, Peake's Cas. 95. 

Harris v. Holmes, 30 Vt. Pep. 352, the [See also Holingham v. Head, 4 Com. B. 

point is thus stated : In cases where the is- Pep. n. s. 388.] 

sue is not defined, and where it is impos- •» Harris v. Mantle, 3 T. P. 397. See 
■ sible to anticipate what (|uesti()ns may arise also Balcetti r. Serani, Peake's Cas. 142; 
in the course of the trial, the rule in re- Purneaux v. Hutchins, Cowp. 807; Doe 
gard to tlie admissihilitv of testimony is, v. Sisson, 12 East, (jl ; Holcomhe v. Hew- 
that it should be received if it would be son, 2 Campb. 391 ; Viney v. Bass, 1 Psp. 
competent in any view of the case claimed, 292; Ciotliier v. Chapmim, 14 East, 331, 
and which miffht be thereatler taken. And note. 

a new trial will not be granted on account ^ Edge v. Pemherton, 12 M. & W. 18<. 

of the admission of such evidence unless "^ See infra, §§ 448, 449, 4u0. 

it appears that the evidence so admitted "^ Crowley v. Page. 7 Car. & P^ 789; 

was improperlv ai)plietl in the decision of Harris v. 'I'ippet, 2 Campb. 637 ; Kex r. 

tlie case.] " Watson, 2 Stiu-k. P. lUJ ; Connuonwealth 

2 fnfra, § 448. But counsel may, on r. Buzzel, Itl Pick. 157, 158; Ware f. 
cross-examination, inquire'as' to' a'Tact Ware, 8 Grecnl. 42; [Coombs v. A\ in- 



64 LAW OF EVIDENCE. [PART II. 

§ 53. In some cases, however, evidence has been received of 
facts which happened before or after the principal transaction, 
and which had no direct or apparent connection with it; and 
therefore their admission might seem, at first view, to constitute 
an exccj)tion to this rule. But those will be found to have been 
cases, in which the knowledge or intent of thq party was a material 
fact, on which the evidence, 'apparently collateral, and foreign to 
the main subject, had a direct bearing, and was therefore ad- 
mitted. Thus, when the question was, whether the tlefendant, 
being the acceptor of a bill of exchange, either knew that the 
name of the payee was fictitious, or else had given a general 
authprity to the drawer, to draw bills on him payable to fictitious 
persons, evidence was admitted to show, that he had accepted 
other bills, drawn in like manner, before it was possible to have 
transmitted them from the place at which they bore date.^ So, in 
an indictment for knowingly uttering a forged document, or a 
counterfeit bank-note, proof of the possession, or of the prior or 
subsequent utterance of other false documents or notes, though of 
a different description, is admitted, as material to the question 
of guilty knowledge or intent,^ So, in actions for defamation, evi- 
dence of other language, spoken or written by the defendant at 
other times, is admissible under the general issue, in proof of the 
spirit and intention of the party, in uttering the words or publish- 
ing the libel charged ; and this, whether the language thus proved 
be in itself actionable or not.^ Cases of this sort, therefore, in- 
stead of being exceptions to the rule, fall strictly within it. 

Chester, 39 N. H. 1]. A further reason BiillarJ, 23 How. U. S. 172; Butler v. 

may be, tliat the evidence, not being to a Collins, 12 Cal. 457 ; French v. White, 6 

material point, cannot be the subject of Duer, 254.] 

an indictment for perjury. Odiorne v. ^ Pearson v. Le ISIaitre, 5 M. & Gr. 

Winkley, 2 Gall. 51, 53. 700, 6 Scott, N. R. 007, s. c. ; Kustell v. 

1 Giijson V. Hunter, 2 H. Bl. 288 ; IMi- Macquister, 1 Campb. 49, n. ; Saunders 
net V. Gibson, 3 T. R. 481 ; 1 H. Bl. 569. v. Mills, 6 Bin?. 213 ; Warwick v. Foulkes, 

2 Rex V. Wylie, 1 New Rep. 92, 94. 12 M. & W. 507 ; Long v. Barrett, 7 Ir. 
See other examples in McKenney y. Ding- Law R. 439; 8 Ir. Law R. 331, s. c. on 
ley, 5 Greenl. 172; Bridge v. Egglestou, error; [pout, vol. 2, § 418; 2 Starkie on 
14 Mass. 245; Rex w. Ball, 1 Campb. 324; Slander, 53-57. So for the purpose of 
Rex V. Roberts, 1 Campb. 399; Rex v. proving that a conveyance of property 
Houghton, Russ. & Rv. 130 ; Rex v. Smith, made by a bankrupt was fiadulent under 
4 C."& P. 411 ; Rickman's case, 2'East, P. the United States Bankrupt Act of 1841, 
C. 1035; Robinson's case. Id. 1110, 1112; because made to defraud the plaintiff of 
Rex V. Northampton, 2 IM. & S. 262; his debt, evidence is admissible tending 
Commonwealth r. Turner, 3 Met. R. 19. to show that" the defendant entertained 
See also Bottomley v. United States, 1 such fraudulent intent even before the 
Story, R. 143, 144, where this doctrine is passage of said bankrupt act. Bigelow, 
clearly expounded by Story, J. ; Pierce v. J., in delivering the opinion of the court, 
Hoffman, 24 Vermont, 525. [* Castle v. said: "The inquiry before the jury iu- 



CHAP. I.] 



THE RELEVANCY OF EVIDENCE. 



65 



§ 5oa. In proof of the oicnership of lands, by acts of possession, 
the same latitude is allowed. It. is impossible, as has been ol)- 
served, to confine the evidence to the precise spot on which a sui>- 
poscd trespass was commited ; evidence may be given of acts done 
on other parts, provided there is such a common character of local- 
ity between those parts and the spot in question, as would raise a 
reasonable inference in the minds of the jury that the fJace in 
dispute belonged to the party, if the other parts did. The evidence 
of such acts is admissible propria vigore, as tending to prove that 
he who did them is the owner of the soil ; though if they were 
done in the absence of all persons interested to dispute them, they 
are of less Aveight.^ 

§ 54. To this rule may be referred the admissibility of evidence 
of the general character of the parties. ^ In civil cases, such evi- 
dence is not admitted, unless the nature of the action involves the 
general character of the party, or goes directly to affect it.^ Thus, 



volved two essential elements. One was 
the establisliinent of a fraudulent design 
on the part (if the defendant towards his 
creditors ; the otiier was the carrying-out 
and fultihnent of tliat design through tlie 
instrunientahty of the bankrupt act. 'J'o 
maintain tlie tirst of tliese pro])ositions, as 
one link in tlie chain of evidence, proof 



evidence within any precise limit. It 
must necessarily proceed by steps or 
stages leading to the main point in issue. 
In the case at bar, wlien the plaintilf iiad 
proved an intent on the part of the ilefeud- 
ant to conceal his property, for the pur- 
pase of defrauding his creditors, anterior 
to the x'assage of tlie bankrupt act, he liud 



of an intent, prior to the passage of the advanced one step towards the proof of 



bankrupt act, to defraud the plaintili' of 
Ids debt by a fraudulent concealment and 
convey.ance of his property, was clearly 
competent. Whenever the i ntent of a. 
party forms part oT tlie m a tTeF_inissue^ 
upon the pleadings, evidence niay be giv- 
en of other acts, not in issue, provided 
they tend to establish the intent of the 
])arty in doing the acts in (inestion. Kosc. 



the real issue before the jury, and if he 
satisfied the jury that tliis intent once 
harbored continued in the mind of the 
defendant, and was carried out by availing 
himself of the provisions of the bankrupt 
act, he had thus proved by a legitimate 
chain of evidence the matter set up in his 
specification as a ground for invalidating 
the defendant's discharge in bankrupicy." 
Cook V. Moore, 11 Cush. -JlG-JlT.] [»Tlie 



Crim. Ev. (3d Am. ed.) 9'J. The reascm 

for this rule is obvious. The only mode party to a suit, if admissible as a witness, 

of showing a present intent is often to be may testify to his-motive in doing an act, 

found in proof of a like intent previously if that become material. Wlieelden v. 

entertained. The existence in the mind Wilson, 4-4 Me. 1.] 

of a deliberate design to do a certain act, ^ Jones v. Williams, 2 M. & W. 326, 

when once proved, may properly lead to per I'arke, B. And see Doe v. Kemp, 7 

the inference that the intent once harbored 



continued and was carried into ettect by 
acts long subse<iuent to the origin of the 
motive by whi(-h they were iirompted. 
I'.ven in criminal cases, acts and declara- 
tions of a j>arty made at a former time are 
admissible to prove the intent of the same 
person at the time of the commission of 
an oUence. 2 Phil. Ev. (3d ed.) iyH ; 
Eosc. Crim. Ev. (3d Amer. ed.) 'J5. In 
the proof of cases involving the motives 
of men as intluencing and giving character 
to their acts, it is impossible to confine the 



Bing. 332; 2 Bing. N. C. 102; [* Simp- 
son I'. Dendy, 30 Eng. L. & Eq. 3tJG]. 

- [Conuuonwealth r. Webster, 5 Cush. 
324, 325. See as to character of u-itm^ses, 

j,„si, § -im.] 

3 Attorney-General v. Bowman, 2 B. 
& P. o32, expressly adopted in Eowler^ f. 
iEtna Eire Ins. Co. 6 Cpwen, tj73, 075; 
Anderson r. Long, 10 S. & K. 55; Ilum- 
phrev V. Humphrey, 7 Conn. 110; Nash 
r. Gilkeson, 4 S. & R. 352; Jctlries »'. 
Harris, 3 Hawks, 105 ; [Pratt v. Andrews, 
4 Comst. 4y3 ; Porter v. Seller, 23 Penu. 



6* 



66 



LAW OF EVIDEN'CE. 



[part II. 



evidence impeaching the previous general character of the wife or 
daughter, in regard to chastity, is admissible in an action by the 
husband or father for seduction ; and this, again, may be rebutted 
by counter proof.^ But such evidence, referrino- to a tune subse- 
quent to the act complained of, is rejected.^ And generally, in 
actipns of tort, wlierever the defendant is charged with fraud from 
mere circumstances, evidence of his general good character is 
admissible to repel it.^ So, also, in criminal prosecutions, the 



St. R. 424; see also 24 lb. 401, 408; 
Goldsmith i'. Picard, 27 Ala. 142 ; Lander 
V. Seaver, 32 Vt. 114.] 

1 Bate V. Hill, 1 C. & P. 100 ; Yerry v. 
Watkius, 7 C. vi. P. 308; Carpenter v. 
Wahl, 11 Ad. & Kl. 803 ; 3 P. & I). 457, 
s. c. ; Elsam v. Faucett, 2 Esp. 562 ; Dodd 
V. Norris, 3 Canii)b. 519. See contra, Mc- 
Rea V. Lilly, 1 Iredell, R. 118. 

2 Elsam V. Eaucett, 2 Esp. 562 ; Coote 
r. Berty, 12 Mod. 232. The rule is the 
same in an action by a woman, for a breach 
of a promise of marriage. See .Tohnson v. 
Caulkins, 1 Johns. Cas. 116 ; Boynton v. 
Kellogg, 3 Mass. 189 ; Foulkes v. Sellway, 
3 Esp. 23G ; Bamfield v. Massey, 1 Campb. 
460 ; Dodd o. Norris, 3 Campb. 519. 

'■^ Ruan V. Perry, 3 Caines, 120. See 
also Walker v. Stephenson, 3 Esp. 284. 
This case of Ruan r. Perry has some- 
times been mentioned with disapproba- 
tion ; but, wlien correctly understood, it 
is conceived to be not opposed to the well- 
settled rule, that evidence of general char- 
acter )5 aflmissible only in cases where it 
is involved in the i:-;sue. In that case the 
commander of a national frigate was sued 
in ti-espass, for seizing and detaining the 
plaintiff's vessel, and taking her out of her 
course, by means whereof she was cap- 
tured by an enemy. The facts were clear- 
ly proved ; but the question was, whether 
the defendant acted in honest obedience 
to his instructions from the Navy Depart- 
ment, which were in the case, or with a 
frandidml iiUejit, and in collusion with the 
captors, as the plaintiff alleged to the 
jury, and attemi)ted to sustain by some of 
the' circumstances proved. It was to re- 
pel tins imputation of fraudulent intent, 
inferred from slight circumstances, that 
tiie defendant wiis permitteil to appeal fo 
his own "fair and good reputation." And 
in confirming this decision in bank, it was 
observed, that " In actions of tort, and es- 
pecially charging a defendant with gross 
dejjravity and fraud, upon circumstances 
merely, evidence of uniform integrity and 
good cliaracter is oftentimes the only tes- 
timony which a defendant can oppose to 
suspicious circumstances." On this ground 



this case was recognized by the court as 
good law, in Fowler v. ^Etna Fire Ins. Co. 
6 Cowen, 675. And five years afterwards, 
in Townsend v. Graves, 3 Paige, 455, 456, 
it was again cited with approbation by 
Chancellor Walworth, who laid it down as 
a general rule of evidence, '" that if a par- 
ty is charged with a crime, or any other 
act involving moral turpitude, which is 
endeavored to be fastened upon lum by cir- 
cumstantial evidence, or by the testimony 
of witnesses of doubtful credit, he may in- 
troduce proof of his former good charac- 
ter tor honesty and integi'ity, to rebut the 
presumption of guilt arising from such 
evidence, which it may be impossible for 
him to contradict or explain." In Gougli 
V. St. John, 16 Wend. 646, the defendant 
was sued in an action on the case, for a 
false representation as to the solvency of 
a third person. The representation itself 
was in writing, and verbal testimony waa 
offered, tending to show that the defend- 
ant knew it to be false. To rebut this 
charge, proof that the defendant sustained 
a good character for honesty and fairness 
in dealing, was offered and admitted. 
Cowen, J., held, that the fraudulent intent 
Avas. a necessary inference of law from the 
falsity of the rei)resLmtation ; and that the 
evidence of cliaracter was improperly ad- 
mitted. He proceeded to cite and con- 
demn the case of Ruan v. Perry, as favor- 
ing the general admissibility of evidence 
of character in civil actions, for injuries 
to property. But such is manifestly not 
the doctrine of that case. It only decides, 
that M'here intention (not knonicdjie) is the 
point in issue, and the proof consists of 
slight circumstances, evidence of character 
is admissible. The other judges agreed 
that the evidence was improperly admit- 
ted in that case, but said nothing as to the 
case of Ruan v. Perry. They denied, 
however, that fraud was in such cases an 
inference of law. 

The ground on which eviilence of good 
character is admitted in criminal prosecu- 
tions is this, that the intent with which the 
act, charged as a crime, was done, is of 
the essence of the issue ; agreeably to the 



CHAP. I.] 



THE RELEVANCY OF EVIDENCE. 



67 



charge of a rai)C, or of an assault with intent to commit a rape, is 
considered as involving not only the general character of tlie 
prosecutrix for chastity, but the particular fact of her previous 
criminal connection with the prisoner, though not with otlier per- 
sons.^ And in all cases, where evidence is admitted touching the 
general character of the party, it ought manifestly to bear refer- 
ence to the nature of the charge against him.^ 

§ 55. It is not every allegation of fraud that may be said to j)nt 
the character in issue ; for, if it were so, the defendant's character 
would be put in issue in the ordinary form of declaring in assump- 
sit. This expression is technical, and confined to certain actions, 
from the nature of which, as in the preceding instances, the 
character of the parties, or some of them, is of particular impor- 
tance. This kind of evidence is therefore reje cted^ wherever the 
f^eneral character is involved by the plea only, and not by thg 
nature of th e acti on.^ _^ Nor is it received in actions of assault and 
battery ; * nor in assumpsit ; ^ nor in trespass on the case for mali- 
cious prosecution ; ^ nor in an information for a penalty for violation 
of the civil, police, or revenue laws ; " nor in ejectment, brought 
in order to set aside a will for fraud committed by the defendant.^ 
Whether evidence impeaching the plaintiffs previous general 



maxim, " Nemo reus est, nisi mens sit rea ; " 
and the prevailing character of the party's 
mind, as evinced by the ])revious habit of 
his life, is a material element in discover- 
injj that intent in the instance in question. 
Upon the same principle, the same evi- 
dence ought to be admitted in all other 
cases, whatever be the form of jjrocecitling, 
where the intent is material to be found 
as a fact involved in the issue. 

1 Rex V. Clarke, 'l Stark. 241 ; 1 Phil. 
& Am. on Evid. 4'.i0 ; Low v. Mitchell, 6 
Sliepl. 372 ; Commonwealth v. Murphy, 
14 Mass. MS7; 2 Stark. Evid. (by Mtn- 
calf) o(3<.t, note (1); Rex v. ^hirtin, 6 P. 
& C. 562; Rex v. Ilodson, Russ. & Rv- 
211; Regina v. Clay, 5 Cox, Cr. C. 140. 
But in an action on the case for seduction, 
evidence of particular acts of unchastity 
witli other persons is admissible. Verry 
V. Watkins, 7 C. & P. 308. Where one is 
charged with keeping a house of ill tame 
qflur the statute went into operation, evi- 
dence of the bad reputation of the house 
before that time, was held admissible, as 
conducing to jirove that it sustained the 
same reputation afterwards. Cadwell i'. 
The State. 17 Conn. R. 407. 

2 Douglass I'. Tousey, 2 Wend. 852. 

* Anderson v. Long, 10 S. & R. 55; 



Potter V. Webb et ol. 6 Greenl. 14 ; Greg- 
ory V. Tliomas, 2 Bibb, 286. 

* Givens r. Bradley, 3 Bibb, 192. But 
in the Admiralty Courts, where a seaman 
sues against the master for damages, for 
illegal and unjustifiable punishment, liis 
general conduct and character during the 
vovage are involved in the issue. Pettin- 
gill V. Dinsmore, Daveis, R. 208, 214. 

5 Nash V. Gilkeson, 5 S. & R. 352. 

'' Gregory v. Thomas, 2 Bibb, 280. 

" Attorney-General r. Bowman, 2 B. & 
P. 532, note. 

s Goodright v. Hicks, Bull. X. P. 206. 
[Xor is the i-haracter of the plaintiff in- 
volved in the issue, where the action is tin 
a policy of insurance against loss by fire, 
and the defence is that the fire was occa- 
sioned l)v the wilful and fraudulent act of 
the plaintiff. The nature of the action 
excludes all such inquiry or evidence in 
relation thereto. Schmidt v. New York, 
&c.. Ins. Co. 1 Gray, 52'.), 535; nor in an 
action for commencing a suit against the 
plaintiff without authority, where the 
plaintiff at the trial gives ni>tice that he 
shall claim no damages for s|H'cial injury 
to his character by reason of the suit. 
Smith V. Hyndman, 10 Cush. 554.] 



6S 



LA'W OF EVIDENCE. 



[PxVRT II, 



character is admissible in an action of slander, as affecting the 
question of damages, is a point which has been much controverted ; 
but the weight of authority is in favor of admiting such evidence.^ 
But it seems that the character of the party, in regard to any 
particular trait, is not in issue, unless it be the trait which is 
involved in the matter charged against him ; and of this it is only 
evidence of general reputation., which is to be admitted, and not 
positive evidence of general bad conduct? 



1 2 Starkie on Slander, 88, 89-95, note ; 
Root V. King, 7 Cowen, 013 ; Bailey v. 
liyde, '?> Conn. 463 ; Bennett v. Hyde, 6 
Conn. 24 ; Douglass v. Tousey, 2 Wend. 
353 ; Inman v. Foster, 8 Wend. t5U2 ; 
Lamed r. Buffington, 3 Mass. 552 ; Wal- 
cott V. Hall, G JMass. 514 ; Koss r. Lapham, 
14 Mass. 275 ; Bodwell v. Swan, 3 Tick. 
378; Buford v. McLuny, 1 Nott & Mc- 
Cord, 268; Sawyer v. Eifert, 2 Nott & 
McCord, 511 ; lung v. Waring et ux. 5 
Esp. 14 ; Rodriguez v. Tadmire, 2 Esp. 

721; V. Moore, 1 M. & S. 284; 

Earl of Leicester v. Walter, 2 Campb. 
251; Williams v. Callendar, Holt's Cas. 
,307; 2 Stark. Evid. 216. In Foot v. 

''"'Tracy, 1 Johns. 45, the Supreme Court of 
New York was equally divided ujjon tliis 
question: Kent and Tliompson, Js., being 
in favor of admitting the evidence, and 
Livingston and Tompkins, Js., against it. 
[In a later case, Springstcin v. Field, An- 
thon, 185, Spencer, J., said he had no 
doubt about the admissibility of the evi- 
dence ottered in the case of Foot v. Tracy, 
Init for particular reasons connected with 
that case, he forbore to express any opin- 
ion on the hearing of the same. In Pad- 
dock V. Salisbury, 2 Cowen, 811, the ques- 
tion came again before the Supreme Court 
of New York, and the evidence was ad- 
mitted in mitigation of damages, under 

/the gene ral i^am^ which was the only 
plea iii:*tTiar cascT] In England, according 
to the later authorities, evidence of the gen- 
eral bad character of the plaintiff seems 
to be regarded as irrelevant, and there- 
fore inadmissible. Phil. & Am. on Evid. 
488, 489 ; Cornwall v. Richardson, Ry. & 
Mood. 305; Jones v. Stevens, 11 Price, 235. 
In this last case it is observable, that 
though tlie reasoning of the learned 
judges, and esi)ecially of Wood, B., goes 
against the admission of the evidence, 
even though it be of the most general na- 



ture, in any case, yet the record before 
the court contained a plea of justification 
aspersing the professional character of the 
plaintiff in general averments, without 
stating any particular acts of bad con- 
duct ; and the point was, whether, in sup- 
port of this plea, as well as m contradic- 
tion of the declaration, the defendant 
should give evidence that the idaintiff was 
of general bad character and repute, in 
his practice and business of an attorney. 
The court strongly condemned the plead- 
ing as reprehensible, and said that it ought 
to have been demurreil to, as due to the 
court, and to the judge who tried the 
cause. See J'Anson v. Stuart, 1 T. R. 
747 ; 2 Smith's Leading Cases, 37. See 
also Rhodes v. Bunch, 3 McCord, 66. In 
AVilliston v. Smith, 3 Kerr, 443, which 
was an action for slander bj' charging the 
defendant with larceny, the delendant, in 
mitigation of damages, ottered evidence of 
the j)laintiffs general bad character ; which 
the judge at Nisi Prius rejecteil ; and the 
court held the rejection ju-oper ; observ- 
ing, that had the evidence been to the 
plaiutiff"'s general character for honesty, it 
might have been admitted. [See post, vol. 
2,-§ 424.] 

■■^ Swift's Evid. 140 ; Ross v. Lapham, 
14 Mass. 275; Douglass v. Tousey, 2 
Wend. 352 ; Andrews v. Vanduzer, 11 
Johns. 38 ; Root v. King, 7 Cowen, 613 ; 
Newsam v. Carr, 2 Stark. 69 ; Sawyer v. 
Eifert, 2 Nott & McCord, 911 [Stone v. 
Varnev, 7 Met. 86 ; Leonard i'. Allen, 11 
Cush. 241, 245; Watson v. Moore, 2 lb. 
133; Orcutt v. Ranney, 10 lb. 183]. 
[ * The best evidence of good character 
seems to be that the witness, if thoroughly 
conversant with the history of the party 
for years, never heard any question raised 
in regard to it. Gandolib v. State, 11 
Ohio, N. s. 114.] 



CHAP. II.] THE SUBSTANCE OF THE ISSUE. 09 



CHAPTER 11. 

OF THE SUBSTANCE OF THE ISSUE. 

[ * § 56. Sufficient to prove substance of issue, unless in matters of description. 

57. How far an allegation is descriptive, depends upon its form and subject-matter. 

58. Allegations as to contracts, prescriptions, and character, held descriptive. 

59. Traverse, modo et forma only puts in issue the substance of the averments. 

60. Allegation, with or without videlicet, will not generally affect the proof, but 

sometimes it will. 

61. Allegations of time, place, quantity, quality, value, and in aggravation of dam- 

ages, not material to be strictly proved, unless descriptive. 

62. In local actions, place material, and so of the kind, and boundaries, of land. 

63. Variance consists in a departure from legal proof. 

64. Circumstantial averment not required to be proved, unless requisite to identity. 

65. The same latitude in proving only the substance of the issue, in criminal as 

in civil cases. 

66. Slight variances in description of contracts often material. 

67. Distinction between redundancy of allegation, and of proof. 

68. Consideration must be laid fully, and proved as hiid. 

69. Description of deeds must be accm-ate ; may be by import ; on pi/a- must be 

preciselj' accurate. 

70. Records, as inducement, must be substantially proved ; but strictly, if it be 

the ground of action. 

71. Prescriptive grants and rights must be strictly proved. 

72. Less strictness required in proof of prescriptions upon which the action is 

foundotl. Excess of proof will not vitiate. 

73. Most questions of variances may be relieved by amendment.] 

§ 56. A SECOND RULE, wliicli govems in the production_of_evi- 
deiice, is that it is sufficient, if the substance oftheissuehep'oved.^ 
In the application of this rule, a distinction is made between 
allegations of matter of suhdance, and allegation s of matter o f 
essehiidl deslinp{idK'~TTielorin&Fmkjl6e siiB'stantialiy provetl ; but 
the latter iiiusl be proved Avith a degree of strictness, extending in 
some cases even to literal precision. No allegation, descriptive of 
the identity of that which is legally essential to the claim or charge, 
can ever be rejected.^ Thus in an action of malicious prosecution, 

1 Stark. T.vid. 373 ; Purcell r. Macna- 4-56 ; Ferguson r. Harwood. 7 Cranch, 
mara, 9 East, 1(30 ; Stodilard r. Palmer, 3 408, 413 [/)osY, vol. 2, § 2-llJ. 
B. & C. 4 ; Turner v. Evles, 3 B. & P. 



:i^ 



j^ 



70 LAW OF EVIDEN'CE. [PAllT II. 

the plaintiff alleges that he was acquitted of the charge on a 
certain day ; here the substance of the allegation is the acquittal, 
and it is sufhcient, if this fact be proved on any day, the time not 
l)oing material. But if the allegation be, that the defendant drew 
a bill of exchange of a certain date and tenor, here every allegation, 
even to the precise day of the date, is descri}>tive of the bill, and 
essential to its identity, and must be literally proved.^ So also, "Scsv^^^ 
we have already seen, in justifying the taking of cattle damage- 

I feasant, because it was ujjon the close of the defendant, the alle- 
gation of a general freehold title is sufficient ; but if the party 
states, that he was seised of the close in fee, and it be traversed, 
the precise estate, which he has set forth, becomes an essentially 
descriptive allegation, and must be proved as alleged. In this 
case the essential and non-essential parts of the statement are so 
connected, as to be incapable of separation, and therefore both are 
alike material.^ 

§ 57. "Whether an allegation is or is not so essentially descrip- 
tive, is a point to be determined by the judge in the case before 
him ; and it depends so much on the particular circumstances, 
that it is difficult to lay down any precise rules by which it can 
in all cases be determined. It may depend, in the first place, 
on the nature of the averment itself, and the subject to which 
it is applied. But secondly, some averments the law pronounces 
formal, which otherwise, would, on general principles, be descrip- 
tive. And thirdli/, the question, whether others are descriptive 
or not, will often depend on the technical manner in which they are 
framed. 

§ 58. In the first place, it may be observed, that any allegation, . 
which narrows and limits that, which is essential, is necessarily 
descriptive. Thus, in contracts, libels in writing, and written instru- 
ments in general, every part operates by way of description of the 
whole. In these cases, therefore, allegations of names, sums, 
magnitudes, dates, durations, terms, and the like, being essential 
to the identity of the writing set forth, must, in general, be 

1 3 B. & C. 4, 5 ; Glassford on Evid. v. Palmer, 3 B. & C. 4, will, on closer ex- 

309. ainiiiation, result merely in this, that mut- 

■^ Stephen on Pleadinfr, 201, 202, 419; ters of description are matters of substance, 
Turner v. Eyles, 3 15. & P. 45() ; 2 Saund. when they go to the identity of any thing 
200 a, n. 22 ; Sir Francis Leke's ca.se, material to the action. Thus the rule will 
Dyer, 304 />. Perhaps tlie distinction tak- stand, as oritiinally stated, that the sub- 
en by Lord Kllenboroufjli, in Purcell v. stance, and tliis alone, must be proved, 
!Macnamara, and recognized in Stoddard 



CHAP. II.] THE SUBSTANCE OF THE ISSUE. 71 

precisely proved.^ Nor is it material whether the action be founded 
in contract or in tort ; for in either case, if a contract be set forth, 
every allegation is descrijitive. Thus, in an action on the case 
for deceit in the sale of lambs by two defendants, jointly, proof 
of sale and warranty by one only, as his separate property, was 
held to be a fatal variance.^ -So, also, if the contract described be 
absolute, but the contract proved be conditioital, or in the alterna- 
tive, it is fatal.3 The consideration 4^ equally descriptive and 
material, and must be strictly proved as alleged.^ Prescriptions, 
also, being founded in grants presumed to-be lost from lapse of 
time, must be strictly proved as laid ; for every allegation, as it is 
supposed to set forth that which was originally contained in a deed, 
is of course descriptive of the instrument, and essential to the 
identity of the grant.^ An allegation of the character in which 
the plaintiff sues, oi" of his title to damages,' though sometimes 
superfluous, is generally descriptive in its nature, and requires 
proof.*^ 

§ 59. Secondly, as to those averments which tlie law pronounces 
fori-hal, though, on general principles, they seem to be descriptive 
and essential ; these a^ rather to be regarded as exceptions to the 
rule already stated, and are allowed for the sake of convenience. 
Therefore, though it is the nature of a traverse to deny the alle- 
gation in the manner and form in which it is made, and, consequently 
to put the party to prove it to be true in the manner and form, as 
well as in general effect ; " yet where the issue goes to the point of 
the action, these words, 7nodo et formd, are but words of form.^ 
Thus, in trover, for example, the allegation, that the plaintiff lost 
the goods and that the defendant found them is regarded as 

' i^Bristow V. Wriglit, Doug. 665, 667 ; Robertson v. Lynch, 18 Johns. 451 ; \post, 

Churchiil v. Wilkms, 1 T. 11. 447; 1 Stark. § 68). 

Evid. 386, 388. " iVIorewood v. Wood, 4 T. R. 157; 
- Weal ?.'. Kino-, et aJ. 12 East, 452. Rogers v. Allen, 1 Campb. 309, 314, 315, 
3 Penny V. Torter, 2 East, 2; Lopez v. note (a). But proof of a more ample 
De Tastei, 1 B. & B. 538 ; Higgins v. right than is alleged, will be regarded as 
Dixon, 10 Jur. 376; llilt t'. Campbell, 6 more redundancy. Johnson i-. Thorough- 
Greenl. 109 ; Stone v. Knowlton, 3 Wend, good. Hob. 64 ; Bushwood v. Pond, Cro. 
374. See also Saxton v. Jolnison, 10 El. 722 ; Bailifls of Tewksbury c. Brick- 
Johns. 581 ; SneU v. Moses, 1 Jolnis. 90 ; nell, 1 Taunt. 142 ; Burges v. Steer, 1 
Crawford v. Morrell, 8 Johns. 153; Bav- Show, 347; 4 Mod. 89, s. c. {post, § 71]. 
lies V. Fettvplace, 7 IMass. 325 ; Robbins '^ 1 Stark. Evid. 390 ; Moises v. Thorn- 
?-. Otis 1 Pick. 368; Harris v. Ravnor, ton, 8 T. R. 303, 308; Berryman t'. Wise, 
8 Pick. 541 ; White v. Wilson, 2 Bos. & 4 T. R. 366. 
Pnl. 116 ; Whitaker v. Smith, 4 Pick. "• Stephen on Pleading, 213. 
83; Lower v. AV inters, 7 Cowen, 263; ^ Trials per pais, 308 (Oth ed.); Co. 
Alexander v. Harris, 4 Cranch, 2U9. Lit. 281 b. 
* Sallow V. Beaumont, 2 B. & Aid. 765 ; 



72 LAW OF EVIDENCE. [PART II. 

purely formal, requiring no proof; for the gut of the action is 
the conversion. So, in indictments for homicide, though the death 
is alleged to have been caused by a particular instrument, this 
averment is but formal ; and it is sufficient if the manner of death 
agree in su])stance with that which is charged, though the instru- 
ment be dilfcrent ; as, if a wound alleged to have been given with 
a sword, l)e proved io have been inflicted with an axe.^ But, 
where the traverse is of a collateral point in jAeading, there the 
words, modo et formd, go to the substance of the issue, and are 
descriptive, and strict proof is required ; as, if a feoffment is 
alleged by deed, which is traversed modo et forma, evidence of 
a feoffment without deed will not suffice.^ Yet, if in issues upon 
a collateral point, where the affirmative is on the defendant, 
partial and defective proof on his part should show that the 
plaintiff had no cause of action, as clearly as strict and full proof 
would do, it is sufficient.^ 

§ GO. Thirdly, as to those averments, whose character, as being 
descriptive or not, depends on the manner in which they are stated. 
Every allegation, essential to the issue, must, as we have seen, be 
proved, in whatever form it be stated ; and things immaterial in 
their nature to the question at issue may be omitted in the proof, 
tliough alleged with the utmost explicitness and formality. There 
is, however, a middle class of^circumstaiices^ not essential in thei r 
nature, which may become so by being inseparably connected 
with the essential allegations.^ These must be proved as laid, 
u nless th e y are state d under a videlicet ; the office of which is to 
mark, that the party does not undertake to prove the precise 
circumstances alleged ; and in such cases he is ordinarily not 
h(jlden to prove them.* Thus in a declaration upon a bill of 
exchange, the date is in its nature essential to the identity of the 
bill, and must be precisely proved, though the form of allegation 
were, " of a certain date, to wit," such a date. On the other 
hand, in the case before cited, of an action for maliciously prose- 
cuting the plaintiff for a crime, whereof he was acquitted on 
a certain day ; the time of acquittal is not essential to the charge, 

1 2 Russell on Crimes, 711 ; 1 East, P. » Ibid. ; 2 Stark. Ev. 394. 

C 841. * Sloplieii on Plead i n t,^ 809 ; 1 Cliitty 

•■i Hull. N. P. 301; Co. Lit. 281, B. on PI. L'Cl, '2152, 348 (Cth ed.) ; Stukeley !\ 

Whether virtnic rnjns, in a sherifF's plea in Putler, Hoi). 1G8, 172 ; 2 Saund. 2Ul, note 

justification, is tra versa) )le, and in what (1); Gleason v. McVickai*, 7 Cowen, 42. 
cases, is discussed in Lucas v. Nockells, 7 
Bligh, N. 8. 140. 



CHAP. II.] 



THE SUBSTANCE OF THE ISSUE. 



73 



and need not be proved, though it be directly and expressly 
alleged.^ But where, in an action for breach of warranty upon 
the sale of personal chattels, the plaintiff set forth the price paid 
for the goods, without a videlicet, he was held bound to prove the 
exact sum alleged, it being rendered material by the form of 
allegation; 2 though, had the averment been, that the sale was for 
a valuable consideration, to 2vit^ fo r so m uch, it would have been 
otherwise. A videlicet will not avoid a variance, or dispense with 
exact proof, in an allegation of material matter ; nor will the 
omission of it always create the necessity of proving, precisely as 
stated, matter Vhicli would not otherwise require exact proof. 
But a party may, in certain cases, im[)ose upon hinisclf the 
necessity of proving precisely what is stated, if not stated under 
a videlicet.^ 

§ Gl. But, in general, the allegations of time, place, quantity, 
quality, and value, when not descriptive of the identity of the sub- 
ject of the action, will be found immaterial, and need not be 
proved strictly .as alleged. Thus, in trespass to the person, the 
material fact is the assault and battery ; the time and place not 
being material, unless made so by the nature of the justification, 
and the manner of pleading. And, in an action on a policy of 






1 Supra, § 56 ; Purcell v. Macnamara, 
9 East, 160; Gwinnett v. PiuUips, 3 T. R. 
643 ; Vail v. Lewis, 4 Johns. 450. 

- Durston o. Tuthan, cited in 8 T. R. 
67 ; Synnnons i\ Knox, 8 T. R. 65 ; Am- 
field V. Bates, 3 M. & S. 173; Sir Francis 
Lelvc's case, Hyer, 364 /) ; Steplien on 
Pleading, 419, 420 ; 1 Chitty on Pi. 340 
(6tli ed). 

'^ Cri.spin v. Williamson, 8 Taunt. 107, 
112; Attorney-Gen. e;. Jeffreys, M'Cl. R. 
277 ; 2 B. & C. 3, 4 ; 1 Chitty on Plead. 
348 a ; Grimwood v. Barrett, 6 T. U. 460, 
463; Bristow v. Wriglit, Doug. 6t)7, 668. 
These terms, " immaterial," and " imper- 
tinent," though formerly applied to two 
classes of averments, are now treated as 
synonymous; 3 1). & R. 209; the more 
accurate distinction being between these, 
and iiiincmssari/ allegations. Immaterial or 
impertinent averments are tliose which 
need neither be alleged nor proved if al- 
leged. Unnecessary' averments consist of 
mattei-s which need not be alleged ; but, 
being alleged, must be proved. Tlius, in 
an action of assumpsit upon a warranty 
on the sale of goods, an allegation of de- 
ceit on tiie part of the seller is imperti- 
nent, and need not be proved. Wil- 
liamson V. Allison, 2 East, 416; Pan- 

VOL. I. 7 



,'^r 
^ 



ton i\ Holland, 17 Johns. 92 ; T-wiss v. 
Baldwin, 9 Conn. 292. So, wliere the ac- 
tion was for an injury to the plaintift''s re 
versionary interest in land, and it was 
alleged, that the close at the time of the 
injury, was, and " continually fiom thence 
hitherto hath been, and still is," in the 
possession of one J. V., tlds latter part of 
the averment Tvas held superfluous, and 
not necessary to be proved. Vowels v. * 
Miller, 3 Taunt. 137. But if, in an action 
by a lessor against his tenant, for negli- 
gently kec'])ing liis fire, a demise for serim ;#s 
yeiirs l)e alleged, and the pmof be of a lease I \ 
at will only, it will he a fatal variance ; for ; *i 
though it would have sufticed to have al-. \ 
leged the tenancy generally, yet having 
uimecessariiy qualified it, by stating the 
precise term, it must be proved as laid. ' 
Cudlip V. Bundle, Carth. 202. So, in 
debt against an officer for extorting ille- 
gal fees on a Jiiri facias, though it is suf- 
ficient to allege the issuing of the writ of 
Jieri facias, yet if the plaintiff also un- 
necessarily allege the judgment on which 
it was founded, he must prove it, having 
nuide it descriptive of the princiiial thing. 
Savage v. Smith, 2 W. Bl. 1101 ; Bristow 
V. Wright, Doug. 668; (iould's PI. 160- 
165 ; Draper v. Gairatt, 2 B. & C. 2. 



7-4 LAW OF EVIDENCE. [PART II. 

liiisurance, the material allegation is the loss; but whether total 
or partial is not material; and if the former be alleged, proof of 
I the latter is sufficient. So in assumpsit, an allegation, that a bill 
of exchange was made on a certain day, is not descriptive, and 
therefore strict proof, according to the precise day laid, is not 
necessary ; though, if it were stated, that the bill lore date on that 
day, it would be otherwise.^ Thus, also, proof of cutting the pre- 
cise number of trees alleged to have been cut, in trespass ; or, of 
the exact amount of rent alleged to be in arrear in replevin ; or 
the precise value of the goods taken, in trespass or trover, is not 
necessary .2 Neither is matter of aggravation, namely, that which 
only tends to increase the damages, and does not concern the 
right of action itself, of the substance of the issue. But, if the 
matter, alleged by way of aggravation, is essential to the support 
of the charge or claim, it must be proved as laid. 

§ 62. But in local actions the allegation of place is material and 
must strictly be proved, if put in issue. In real actions, also, the 
statement of quality, as arable or pasture land, is generally 
descriptive, if not controlled by some other and more specific 
designation. And in these actions, as well as in those for injuries 
to real property, the abuttals of the close in question must be 
proved as laid ; for if one may be rejected, all may be equally 
disregarded, and the identity of the subject be lost.^ 

§ 03. It being necessary to prove the substance of the issue, it 
follows, that any departure from the substance, in the evidence 
adduced, must be fatal ; constituting what is termed in the law 
a variance. This may be defined to be a disagreement between 
the allegation and the proof, in some matter, which, in point of laWj 
is essential to the charge or claim.'^ It is the legal, and not the 
natural identity, which is regarded ; consisting of those particulars 
only, which are in their nature essential to the action, or to the 
justification, or have become so by being inseparably connected, by 
the mode of statement, with that which is essential ; of which an 
example has already been given,^ in the allegation of an estate in • 
fee, when a general averment of freehold would suffice. It is 



1 Gardiner v. Crnadalos, 2 Burr. 904 ; 2 East, 497; 502 ; Bull. N. P. 89 ; Vowels 

Coxon V. Lyon, 2 Cam])!). oOT, n. v. Miller, 3 Taunt. l:>9, per Lawrence, J. ; 

'^ Harrison ('. Barnbv, 5 T. R. 248 ; Co. Begina v. Cranage, 1 Salk. 385. [See 

Lit. 282 a; Ste])hen "on Pleading, 318; post, vol. 2, § 018 a.] 

Hutchins r. Adams, 3 Greenleaf, 174. * Steplien on PI. 107, 108. 

8 Mersey & L-well Nav. Co. v. Douglas, ^ Supra, § 51-56. 



CHAP. II.] THE SUBSTAN'CE OF THE ISSUE. 75 

necessary, therefore, in these cases, first to ascertain what are the 
essential elements of the legal proposition in controversy, taking 
care to include all, Avhich is indispensable to show the riglit of the 
plaintiff, or party aflirining. The rule is, that whatever cannot 
be stricken out without getting rid of a part essential to the cause 
of action, must be retained, and of course must be proved, even 
itliough it be described with unnecessary particularity.^ The de- 
fendant is entitled to the benefit of this rule, to protect himself V^ 
by the verdict and judgment, if the same rights should come again 
fin controversy. The rule, as before remarked, does not generally 
apply to allegations of number, magnitude, quantity, value, time, 
Sums of money, and the like, provided the proof in regard to these 
is sufficient to constitute the offence charged, or to substantiate 
the claim set up ; except in those cases where they operate by way 
of limitation, or description of other matters, in themselves 
essential to the offence or claim.^ 

§ 64. A few examples will suffice to illustrate this subject. 
Thus, in tort, for removing earth from the defendant's land, 
whereby the foundation of the plaintiff's house was injured, the 
allegation of bad intent in the defendant is not necessary to be 
proved, for the cause of action is perfect, independent of the 
intention.3 So, in trespass, for driving against the plaintiff's 
cart, the allegation, that he was in the cart, need not be proved.* 
But, if the allegation contains matter of description, and is not 
proved as laid, it is a variance, and is fatal. Thus, in an action 



1 Bristow V. Wright, Douff. 668 ; Pep- charge for perjury, where the plaintiff al- 

piii r. Solomons, 5 T. R. 4'.tt3 ; William- Icged, by way of inducement, that lie was 

son V. Allison, 2 East, 446, 4-32. sworn before the Lord Mayor. Stephen on 

- Supra, § 61 ; Rickets v. Salwey, 2 B. Pleading, 258. The (jucstion whether an 

& Aid. 863; Maj' r. Brown, 3 B. &. C. 113, allegation must be pruvetl, or not, turns 

122. It has been said, that allegations, upon its materiality to the case, and not up- 

which are merely matters of inducement, do on the form in which it is stated, or its place 

not require such strict proof, as those in the declaratitm. In general, every alle- 

which are precisely put in issue between gation in an inducement, which is materi- 

the parties. Smith r. Taylor, 1 New Rep. al. and not imjiertinent, and foreign to the 

210, per Chambre, J. But this distinction case, and which conseijucntly cannot be 

as Mr. Starkie justly observes, between rejected as surplusage, must be jiroved as 

that which is tlie gist of the action, and alleged. 1 Chitty on PI. 262, 320. It is 

that which is inducement, is not always true that those matters which need not 

clear in principle. 1 Stark. Evid. 3"Jl, bo alleged with particularity, need not be 

note (b); 3 Stark. Evid. 1551, note (x) proved with i)articularity, but still, all 

Metcalf 's ed. Certainly that which may allegations, if material, must be proved 

be traversed, must be proved, if it is not substantially as aila/ed. 

admitted; and some facts, even though ^ Panton v. Holland, 17 Johns. 92; 

stated in the form of inducement, may i)e Twiss v. Baldwin, 9 Conn. 291. 

traversed, because they are material ; as, * Howard v. Peete, Chitty R. 315. 
for example, in action for slander, upon u 



76 LAW OF EVIDENCE. [PART II. 

for malicious prosecution of the plaintiff, upon a charge of felony, 
before Baron Waterpark of Waterfork^ proof of such a prosecution 
before Baron Waterpark of Waterpark was held to be fatally 
variant from the declaration.^ So, in an action of tort founded 
on a contract, every particular of the contract is descriptive, and 
a variance in the proof is fatal. As, in an action on the case for 
deceit, in a contract of sale, made by the two defendants, proof 
of a sale by one of them only, as his separate property, was held 
insufficient; for the joint contract of sale was the foundation of 
the joint warranty "laid in the declaration, and essential to its 
legal existence and validity .^ 

§ Qb. In criminal prosecutions, it has been thought that greater 
strictness of proof was required than in civil cases, and that the 
defendant might l)e allowed to take advantage of nicer exceptions.^ 
But whatever indulgence the humanity and tenderness of judges 
may have allowed in practice, in favor of life or liberty, the better 
opinion seems to be, that the rules of evidence are in both cases 
the same.* If the averment is divisible, and enough is proved to 
constitute the offence charged, it is no variance, though the re- 
maining allegation? are not proved. Thus, an indictment for 
embezzling two bank-notes of equal value is supported by proof 
of the embezzlement of one only.^ And in an indictment for 
obtaining money upon several false pretences, it is sufficient to 
prove any material portion of them.^ But where a person or 
thing, necessary to be mentioned in an indictment, is described 
with unnecessary particularity, all the circumstances of the de- 
scription must be proved ; for they are all made essential to the 
identity. Thus, in an indictment for stealing a black horse, the 
animal is necessarily mentioned, but the color need not be stated ; 
yet if it is stated, it is made descriptive of the particular animal 
stolen, and a variance in the proof of the color is fatal. ^ So. in 
an indictment for stealing a bank-note, though it would be suffi- 
cient to describe it generally as a bank-note of such a denomination 

1 Walters v. Mace, 2 B. & Aid. 756. Abbott, J. ; Lord INIelville's case, 29 How- 

2 Weall V. Kinjr, et „/. 12 E.ist, 452 ; ell's St. Tr. STO ; 2 Russell on Crimes, 
Lopes r. De Tastet, 1 B. & B. 5;-!8. [See 688 ; United States v. Britton, 2 Mason, 
Ashley r. Wolcott, 1 1 rn.sh. 192.] 464, 468. 

"Beech's case. 1 Loach's Cas. 158; ^ Carson's case, TJuss. & Ry. 303 ; Fiir- 

►United States i;. I'oiter, 8 Day, 283, 286. neaiix's case, Id. 335; Tyer's case, Id. 

* Boscoe's Ciini. Kvid. 73 ; 1 Deacon's 402. 

Pig. Crim. L nv, 459, 460. And see 2 « Hill's case. Buss. & Ry. 190. 

East, P. C. 78'), 1021 ; 1 Phil. Evid. 506 ; T 1 Stark. Evid. 374. 
Rex V. Watson, 2 Stark. R. 116, 155, per 



CHAP. II.] THE SUBSTANCE OF THE ISSUE. 77 

or value, yet, if the name of the officer who signed it be also 
stated, it must be strictly proved. ^ So, also, in au indictment for 
murder, malicious shooting, or other offence to the person, or 
for an offence against the habitation, or goods, the name of the 
person who was the subject of the crime, and of the owner of 
the house or goods, are material to be proved as alleged.^ But 
where the time, place, person, or other circumstances are not 
descrii)tive of the fact or degree of the crime, nor material to the 
jurisdiction, a discrepancy between the allegation and tlie proof 
is not a variance. Such are statements of the house or field, 
where a robbery was committed, the time of the day, the day of 
the term in which a false answer in chancery was filed, and the 
like.^ In an indictment for murder, the suljstance of the charge 
is, that the prisoner feloniously killed the deceased by means of 
shooting, poisoning, cutting', blows or bruises, or the like ; it is, 
therefore, sufficient, if the proof agree with the allegation in its 
substance and general character without precise conformity in 
every particular. In other Avords, an indictment describing a 
thing by its generic term is supported by proof of a species which 
is clearly comprehended within such description. Thus, if the 
charge be of poisoning by a certain drug, and the proof be of 
poisoning by another drug ; or the charge be of felonious assault 
with a staff, and the proof be of such assault with a stone ; or the 
charge be of a wound with a sword, and the proof be of a wound 
with an axe ; yet the charge is substantially proved, and there is 
no variance.* But where the matter, whether introductory or 

1 Craven's case, Russ. & l\y. 14. So, dieted for an assault upon A. B., a depnty- 

wliere the charge in an indictnient was of sheriff, and in the officer's coniiuission lie 

stealing 70 pieces of the current coin is styled A. B. junior, it is no variance if 

called "sovereigns, and 140 pieces called the 'pefso" is proved to be the same, 

half sovereigns, and 500 pieces called ConnnouwealtU t: Beckley, 3 JNletcalf, K. 

crowns ; it was held, that it was not sup- 830. 

ported by evidence of stealing a sum of '^ Wardle's case, 2 East, P. C. 78-5; 

Mowi/ consisting of some of the coins Pye's case, lb. ; .Johnstone's case. Id. 780 ; 

mentioned in the indictment, without Minton's case, Id. 1021 ; Kex r. "Waller. 2 

proof of some one or more of the specific Stark. Evid. Olio ; Kex v. Ilucks, 1 Stark, 

coins charged to have been stolen. l\egi- K. 521. 

na V. Bond, 1 Den. Cr. Cas. R. 517; 14 * 1 East, P. C. 341; Martin's case, 5 

Jur. 390. Car. & P. 128; Culkin's case. Id. 121; 

- Clark's case, Russ. & Ry. 358; supra, %o8. An indictnient for stealing " a 

White's case, 1 Leach's Cas. 28G;'Jenks's sheep" is supported by proof of the 

case, 2 East, P. C. 514 ; Durore's case, 1 stealing of any sex or variety of that ani- 

Leach's Cas. 390. But a mistake in spel- mal ; for the term is nomfii (puenilissiminn. 

hng the name is no variance, if it be ickiii IM'Cully's case, 2 Lew. C. C. 272 ; Kcgi- 

soiians with the name proved. 'Williams v. na v. Spicer, 1 Dennis, C. C. 82. So, if 

Ogle, 2 Stra. 889 ; Poster's case. Buss. & the charge be of death by suffocation, by 

Ry. 412 : Tannet's case, Id. 351 ; Bingham the hand over the mouth, and the i)roof be 

v.* Dickie, 5 Taunt. 814. So, if one be in- that respiration was stopped, though by 



78 LAW OF EVIDENCE. [PART II. 

Otherwise, is descriptive, it must l)G proved, as laid, or tlie variance 
will be fatal. As, in an indictment for perjury in open court, the 
term of the court must be truly stated and strictly proved.^ So, 
in an indictment for perjury before a select committee of the 
House of Commons, in a contested election, it was stated that an 
election was holden by virtue of a precept duly issued to the 
bailiff of the borough of New Malton, and that A and B were 
returned to serve as members for the said borough of New Malton ; 
but the writ appeared to be directed to the bailiff of Malton. 
Lord Ellenborough held this not matter of description ; and the 
precept having been actually issued to the bailiff of the borough 
of New Malton, it was sufficient. But the return itself was deemed 
descriptive ; and the proof being that the members were in fact 
returned as members of the borough of Malton, it was adjudged 
a fatal variance.^ So, a written contract, when set out in an 
indictment, must be strictly proved.^ 

§ 6(3. Thus, also, in actions upon contract, if any part of the 
contract proved should vary materially from that which is stated 
in the pleadings, it will be fatal ; for a contract is an entire thing, 
and indivisible. It will not be necessary to state all the parts of 
a contract, which consists of several distinct and collateral pro- 
visions ; the ciravamen is, that a certain act, which the defendant 
engaged to do, has not been done ; and the legal proposition to 
be maintained is, that, for such a consideration, he became bound 
to do such an act, including the time, manner, and other circum- 
stances of its performance. The entire consideration must be 
stated, and the entire act to be done, in virtue of such considera- 
tion, together with the time, manner, and circumstances; and 
with all the parts of the proposition, as tluis stated, the proof 
must agree.* If the allegation be of an absolute contract, and the 
proof be of a contract in the alternative, at the option of the de- 
fendant ; or a promise be stated to deliver merchantable goods, 
and the proof be of a promise to deliver goods of a second quality ; 

some other violent mode of strangulation, "2 East, P. C. 977, 078, 081, 082; 

it is siiflicii'iit. Hex v. Waters, 7 C. ife l*. Commonwealth v. Parmenter, 5 I'ick. 

2o() [Commonwealth 17. Webster, 5 Cush. 270; The I'eople v. Pranklin, 3 Johns. 

321, 32:51. 209. 

1 Where the term is designated by the * Clarke v. Gray, 6 East, 564, 567, 568 ; 

day of the month, as in the Circuit Courts Gwinnett v. Phillips, 3 T. K. 043, 640 ; 

of the United States, the precise day rs Thornton v. Jones, 2 Marsh. 287 ; Parker 

material. United States v. McNeal, 1 v. Palmer, 4 B. & A. 387 ; Swallow v. 

Call. ;!87. Beaumont, 2 B. & A. 705. 

- liex V. Leefe, 2 Campb. 134, 140. 



CHAP. II.] THE SUBSTANCE OF THE ISSUE. 79 

or the contract stated be to pay or perform in a rcasonaLlc time, 
and the proof be to pay or perform on a day certain, or on the 
happening of a certain event ; or the consideration stated be one 
horse, bought by the plaintiff of the defendant, and the proof be 
of two horses ; in these and the like cases, the variance will be 

fatal.i 

§ 67. There is, however, a material distinction to be observed 
between the redundancy in the allegation, and redundancy only 
in the froof. In the former case, a variance between the allega- 
tions and the proof will be fatal, if the redundant allegations are 
descriptive of that which is essential. But in the latter case, 
redundancy cannot vitiate, merely because more is proved than 
is alleged ; unless the matter superfluously proved goes to con- 
tradict some essential part of the allegation. Tluis, if the allega- 
tion were, that in consideration of £100, the defendant promised 
to go to Rome, and also to deliver a certain horse to the plaintiff, 
and the plaintiff should fail in proving the latter branch of the 
promise, the variance would be fatal, though he sought to recover 
for the breach of the former only, and tlic latter allegation was 
unnecessary. But, if he had alleged only the former branch* of 
the promise, the proof of the latter along with it would be imma- 
terial. In the first case, he described an undertaking which he 

1 Penny v. Porter, 2 East, 2; Bristow is not supported by proof of a note paya- 
V. Wright, 2 Doug. 665 ; Hilt v. Campbell, ble " without defalcation." Addis r. \a\\ 
6 Greenl. 109; Symonds v. Carr, 1 Campb. Buskirk, 4 Zabr. 218. Where a note was 
361 ; King r. Robinson, Cro. El. 79. See described in the declaration as payable 
pas-/, vol. 2, § 11 d. [Where the decla- "on or before" a certain day, and the 
ration set fortli an executory agreement proof was that it was payable " on " the 
of the defendant to do certain work for a day named, it was held no variance. Mor- 
certain sum, and within a certain time, on ton v. Penny, 16 111. 494; see also Walker 
materials to be furnished by tlie plaintiff, v. Welch, 14 111. 277. The declaration 
and alleged that the plaintiff did furnish wasonajiromiseto paymoncy on demand ; 
the materials to the defendant in season the proof was a promise to pay incom- 
for him to complete the stipidated work modities ; and it was held to be a variance. 
witliin the stii)tdat('d time, and the proof Titus r. Ash, 4 Foster, X. II. 819. So a 
was that tiie ])laiiititf had not performed declaration on a note not alleged to lie 
in full his agreement, but that he was ex- upon interest is not sustained by proof of 
cuseil from the ]ierformance thereof by the a note in other respects similar, but draw- 
waiver of the defendant ; the variance wjia ing interest. Gragg v. Erye, 32 Maine, 
held fatal. Colt v. Miller, 10 Cush. 49,51; 283. There can be no doubt of the ad- 
see also Metzner i\ Bolton, 24 Eng. Law & missibility of a written contract in evi- 
Eq. 537. And where the declaration al- deuce to prove the contract declared on, 
leged an authority to one G. W., trading though the declaration does not aver that 
as G. W. & Co., to sell goods as the goods it was in writing. It is generally umieces- 
of G. W., and tiie proof was of an authority sary in declaring on a simple contract in 
to G. W. to sell the goods as the goiids of writing to allege it to be so. This allega- 
G. W. & Co., the variance was held fatal, tion is not re(iuired even in declarations 
Addington v. Magan, 2 Eng. Law & Eq. on contracts that are within the statute 
327. A declaration setting out a note of frauds. Eiedlcr i\ Smith, 6 Cush. 340; 
payable " without defalcation or discount " see Irvine v. Stone, lb. 508.] 



80 LAW OF EVIDENXE. [PART II. 

has not proved ; but in the latter, he has merely alleged one 
promise, and proved that, and also another.^ 

§ 6cS. But where the sulyect is entire, as, for example, the con- 
sideration of a eontraet,^ a variance in the proof, as we have just 
seen, shows the allegation to be defective, and is, therefore, 
material. Thus, if it Avere alleged, that the defendant promised 
to pay XlOO, in consideration of the plaintiff's going to Home, 
and also delivering a horse to the defendant, an omission to 
prove the whole consideration alleged would be fatal. And if the 
cousijleration had been alleged to consist of the going to Rome 
only, yet if the agreement to deliver the horse were also proved, 
as forming part of the consideration, it would be equally fatal ; 
the entire tiling alleged, and the entire thing proved, not being 
identical.^ Upon the same principle, if the consideration alleged 
Ijc a contract of the plaintiff to huild a ship, and the proof be of 
one to finish a ship partly built ; * or the consideration alleged he 
the delivery of j^iMe timber, and the proof be of spruce timber ; ^ 
OF the consideration alleged be, that the plaintiff would indorse 
a note, and the proof be of a promise in consideration that he had 
inclorsed a note ; ^ the variance is equally fatal. But thougli no 
part of a valid consideration may be safely omitted, yet that which 
is merely frivolous need not be stated ; "' and, if statfidr-tteedTlot 
be proved ; for the court will give the sanj.&-t;Snstruction to the 
declaration, as to the contract itself, rejecting that which is non- 
sensical or repugnant.^ 

§ 09. In the case of deeds, the same general principles are 

1 Stark. Evid. 401. Where the agree- ^ Robbins v. Otis, 1 Pick. 3G8. 
ment, as in this case, contains several dis- ^ Bulkley v. Landon, 'I Cunn. 404. [So 

tinct promises, and for the breach of one if tiie allegation be of an agreement to 

only the action is bronght, the conse- obtain insurance on property, " in consid- 

quences of a variance may be avoided by eration of a rcasotnibk commission," and the 

alleging the promise, as made inter alia, proof be of an agreement to obtain the in- 

And no good reason, in principle, is per- snrancc in consideration of a dr/initc sum, 

ceived, why the case mentioned in the the variance is fatal. Cleaves r. Lord, 3 

following section might not be treated in Gray, (JG, 71. And where the declaratioH 

a similar manner ; but the authorities are alleged that the defendant, " in considcra- 

otlierwise. In the example given in the ti.on that said, &c., had accepted the as- 

te.xt, tiic allegation is supposed to import sigmnentof a certain policy, &c.," and the 

that the undertaking consisted of neither proof was that " the policy having been 

more nor less than is alleged. assigned to us, in consideration thereof, 

'■^ Swallow r. Beaumont, 2 B. & A. we promise, &c.," it was held that there 

765 ; White v. Wilson, 2 B. & P. 116 ; su- was a variance. New Hampshire Mutual, 

pra, § 58. &c., Ins. Co. v. Hunt, 10 Foster, 21'.l.] 

'' 1 Stark. Evid. 401 ; Lansing v. Mc- " Brooks v. Lowrie, 1 Nott & McCord, 

Killip, :' Caines, 286 ; Stone v. Knowlton, 342. 
3 \Vend. ;;74. * Ferguson v. Ilarwood, 8 Cranch, 408, 

•» Smith 1-. Barter, 3 Day, 312. 414. 



CHAP. II.] THE SUBSTANCE OF THE ISSUE. 81 

applied. If the deed is declared upon, every part stated in the 
pleadings, as descriptive of the deed, nuist Ije exactly ])rovcd, or it 
will be a variance ; and this, whether the parts set out at length 
were necessary to be stated or not.^ If a qualified covenant be 
set out in the declaration as a general covenant, omitting the 
exception or limitation, the variance between the allegation and 
the deed will be fatal. If the condition, proviso, or limitation 
affects the original cause of action itself, it constitutes an essential 
element in the original proposition to be maintained by the plain- 
tiff; and, therefore, must be stated, and proved as laid ; but, if it 
merely affects the amount of damages to be recovered, or the 
liability of the defendant as affected by circumstances occurring 
after the cause of action, it need not be alleged by the plaintiff, 
but properly comes out in the defence.^ And where the deed is 
not described according to its tenor, but according to its legal 
effect, if the deed agrees in legal eifect with the allegation, any 
verbal discrepancy is not a variance. As, in covenant against a 
tenant for not repairing, the lease being stated to have been made 
by the plaintiff, and the proof being of a lease by the plaintiff and 
his wife, she having but a chattel interest ; or, if debt be l>rouglit 
by the husband alone, on a bond as given to himself, the bond 
appearing to have been given to the husband and wife ; yet, the 
evidence is sufficient proof of the allegation.^ But, wdiere the deed 

1 Bowditch V. Mawley, 2 Campb. 195 ; deed, or the like, livery bein^ made in the 
Dundas v. Ld. Weymouth, Cowj). 665; one case, and possession delivered in the 
supra, § 55; Ferguson v. Harwood, 7 otlier, the transfer of title is perfect, not- 
Cranch, 408, -llo ; Sheehy v. Mandeville, withstanding any mistake in the name of 
Id. 208, 217. the grantor ; for it takes etiect bv dehvery, 

2 1 Chitty, ri. 268, 269 (5th Am. ed.) ; and not by the deed. I'erk. sec. 88-42. 
Howell V. Kichards, 11 East, 633 ; Clarke But where the etiicacy of the transaction 
V. Gray, 6 East, 564, 570. depends on the instrument itself, as in the 

^ Beaver v. Lane, 2 Mod. 217 ; Arnold case of a bond l()r the payment of money, 

V. Ilivovdt, 1 Br. & B. 442 ; AVhitlock v. or ;my other executory contract by deed, 

Ramsey, 2 Munf. 510 ; Ankerstein v. if tlie name of the obligor in the bond is 

Clark, 4 T. K. 616. It is said that an ditiereut from the signature, as if it were 

allegation, that J. S. otherwise 11. S. made written John aiul signed William, it is 

a deed, is not su])ported by evidence, that said to be void at law for uncertainty, 

J. S. made a deed by the name of R. S. unless helped by proper averments on the 

1 Stark. Evid. 513, cites Ilyckman v. record. A mistake in this matter, as in 

Shotbolt, Dyer, 279, j)!. 9. The doctrine any other, in drawing uj) the contract, 

of that case is vory clearly exi)ounded by may be reformed by bill in e(|uity. At 

I'arke, B., in Williams v. Bryant, 5 ^lees. law, where the obligor has been sued by 

& Wels. 447. In regard to a disciep- liis true nartie, signed to the bond, and 

ancy between the name of the obligor in not by tiiat written in the body of it, and 

the body of a deed, and in the signature, the naked fact of the discrepancy, unex- 

a distinction is to be observed between plained, is all which is jircsenteil by the 

transactions winch derive their etHcacy record, it has always been held bad. This 

wholly from the dee<l, and those which do rule was originally founded in this, that a 

not. Thus, in a feotl'inent at the common man cannot have two nanu^s of hiijitism at 

law, or a sale of personal property by the same time ; for whatever name was 



82 



LAW OF EVIDENCE. 



[part II. 



is set out, on oyer, the rule is otherwise ; for, to have oyer, is, in 
modern practice, to Ijc Turiiished witli an exact and literal copy 



imposed at liis baptism, wlietlier sinjile or 
coiiiiKmiidod of several names, he heiiiff 
baptized but once, tliat and tliat alone was 
his baptismal name; and by that name he 
declared himself bound. 80 it was held 
in Serehor v. Talbot, 8 Hen. Vi. 'Zb, pi. (3, 
and subse(juentlv' in Thonit<m v. Wikes, 
34 Hen. VI-. I'J, pi. oO; Field v. Winslow, 
Cro. Kl. S'.»7 ; Oliver ;;. Watkins, Cro. Jac. 
058 ; Maby v. Shejjhei'd, Cro. Jac. (JlO ; 
Evans v. King, WiJJes, 554 ; Clerke v. 
Isted, Lutw. 275 ; Gould r. Barnes, 3 
Taunt. 504. " It appears from these cases 
to be a settled point," said Parke, B., in 
Williams v. Jiryant, '• that if a declara- 
tion agiiin.st a defendant by one Christian 
name, as, tor insUincc, Joseph, state that 
he executed a bond by the name of 
Thomas, and there be no averment to explain 
the dijference, such as that he was known by 
the latter name at the time of the execution, 
such a decLn-ation would be bad on de- 
murrer, or in arrest of judgment, even 
after issue joined on a jilea of non est fac- 
tum. And tlie rea^son appears to be, tliat 
in bonds and deeds, the etiicacy of whicli 
dei)euds on the instrument itself, and not 
on matter in jials, there must be a certain 
dtsifiaatio personui oX the party, which regu- 
larly ought to be by the true first name or 
name of baptism, and surname ; of which 
the first is the most imporimit." " But 
on the other hand," he adds, " it is cer- 
tain, that a person may at this time sue or 
be sued, not merely by his true name of 
baptism, but by any first name which he 
has acquired by usage or reputation." 
" If a party is called and known liy any 
proper name, by that name he may be 
sued, ami the misnomer could not be 
pleaded in abalement; and not only is 
this the established practice, but the doc- 
trine is promulgated in very ancient 
times. In Bracton, 188, b, it is said, 
" Item, si quis binominis fuerit, sive in 
nomine proprio sive in corpjomine, illud 
nomen lenemlum erit, quo solet frequentius 
an]K-llari, quia adeo impositji sunt, ut 
demoustreiit voluntatem dicentis, et uti- 
mur nolis in vocis minislcrio." And if a 
jiarty may sue or be sued by the proper 
name, by which he is known, it must be a 
sulHcieiit designation of him, if he enter 
into a bond by that name. It by no 
means follows, theretbre, that tlie decision 
in the case of Gould c. Barnes, and others 
before referred to, in which tlie question 
arose on the record, would have been the 
same, if there hiul been an averment on the 
face of the declaration, that the party was 



known by the proper name in irliich the bond 
was made, at the time of making it. We 
find no authorities for saying, that the 
declaration would have been bad with 
such an averment, even if there hud been a 
total variance of the first names; still less, 
where a man, having two proper names, or 
names of baiitism, lias bound liimself by 
the name of one. And on the plea of " non 
est factum," }vliere the dijfercnce of name 
does not appear on the record, and tliere is 
evidence of the party having been known, 
at the time of the execution, by the name 
on the instrument, there is no case, that 
we are aware of, which decides that the 
instrument is void." The name written 
in the body of the instrument is that 
which the part\' by the act of execution 
and delivery, declares to be his own, and 
by which he acknowledges himself bound. 
By this name, therefore, he should regu- 
larly be sued ; and if sued with an alias 
dictus of his true name, by v.iiich the 
instrument was signed, and an averment 
in the declaration, that at the time of exe- 
cuting the instrument he was known as 
well by the one name as the other, it is 
conceived that he can take no advantage 
of the discrepancy ; being estopped by 
the deed, to deny this allegation. Evans 
V. Iving, Willes, 555, note (b) ; Reeves v. 
Slater, 7 Bai-n. & Cress. 486, 41)0 ; Cro. El. 
897, note (a). See also Kegina v. Wool- 
dale, G Ad. & El. 54y, N. s. ; Wooster v. 
Lyons, 5 Blackf. (JO. If sued by the name 
written in tlie body of the deed, without 
any ex]ilanatory averment, and he pleads 
a misnomer in abatement, the plaintiti', in 
his replication, may estop him by the 
deed. Dyer, 27'.), b, pi. 9, note ; Story's 
Pleadings, 43 ; Willes, 555, note. And if 
he should be sued by his true name, and 
plead von est factum, wherever this plea, 
as is now the case in England, since the 
rule of Hilary Term, 4 Wm. IV. II. 21, 
" operates as a denial of the deed in point 
of fact only," all other detences against it 
being required to be specially jileaded, the 
difficulty occasioned by the old decisions 
may now be avoided by proof, that the 
party, at the time of the execution, was 
known liy the name on the face of the 
deed. In those American States wliich 
liave abolished spi'cial jileadiug, substitu- 
ting the general issue in all cases, with a 
brief statement of the siiecial matter of 
defence, jirobably the new course of prac- 
tice thus introduced, would lead to a simi- 
lar result. 



CHAP. II.] THE SUBSTANCE OF THE ISSUE. 83 

of the deed declared on, every word and part of which is therehy 
made descriptive of the deed to be offered in evidence. In such 
case, if the plaintiff does not produce in evidence a deed literally 
corresponding with the copy, the defendant may well say it is not 
the deed in issue, and it will be rejected. ^ 

§ 70. Where a record is mentioned in the pleadings, the same 
distinction is now admitted in the proof, between allegations of 
matter of substance, and allegations of matter of description ; the 
former rccpiire only substantial proof, the latter must be literalbj 
proved. Thus, in an action for malicious prosecution, the day of 
the plaintiff's acquittal is not material. Neither is the term in 
w^hich the judgment is recovered, a material allegation, in an 
action against the sheriff for a false return on the writ of execu- 
tion. For in both cases, the record is alleged by way of induce- 
ment only, and not as the foundation of the action ; and therefore 
literal proof is not required.^ So, in an indictment for perjury in 
a case in chancery, where the allegation was, that the bill was 
addressed to Robert, Lord Ilenly, and the proof was of a bill ad- 
dressed to Sir Robert Henly, Kt., it was held no variance ; the 
substance being, that it was addressed to the person holding 
the great seal.^ But where the record is the foundation of the 
action, the term in which the judgment was rendered, and the 
number and names of the parties, are descriptive, and must be 
strictly proved."^ 

§ 71. In regard to prescrijytlons, it has been already remarked, 
that the same rules apply to them which are applied to contracts ; 
a prescription being founded on a grant su{)posed to be lost by 



1 Waugh V. Bussel, 5 Taunt. 707, 709, » pg^ Bnller, J., in Eex v. Pippett, 1 
per Gibbs, C. J.; James v. Walruth, 8 T. II. 240; lloilman v. Forman, 8 Johns. 
Johns. 410 ; Ilemy v. Clehmd, 14 Johns. 29; Brooks v. Bemiss, LI. 455; The State 
400 ; Jansen v. Ostrander, 1 Cowen, 070, v. Catte3% 2 Murpliy, 820. 

ace. In Henry v. Brown, 14 Johns. 4'.), * Ha,«tall v. Stratton, 1 H. Bl. 49; 

where the condition of the bond was Wooihbrd v. Ashley. 11 East, 508 ; Black 

" withoirt fi'and or other delay," and in the v. Braybrook, 2 Stark. K. 7 ; Baynes v. 

oyer the word "other" was omitted, the Forrest, 2 Str. 892; United States v. JIc- 

defendanr moved to set aside a verdict for Neal, 1 Gall. 387. [And where in a writ 

the plaintiff, because the bond was ailmit- of error brought to reverse the juilgnient 

ted in evidence without re<iard to tlie of icwiVer, the judgment was called a judg- 

variance ; but the court refused the nu)- ment of oiitlaicn/, the variance, upon a 

tion, partly on tho ground that the vari- plea of «'// /(V/ ncwf/, was held fatal. Bur- 

ance was inunaterial, and partly, that the nett r. Phillips, 6 Eng. Law i Fq. 467. 

oyer was clearly amendable. See also And though the variance be in regard to 

Dorr V. Femio, 12 Pick. 521. tacts and circumstances which need not 

2 Purcell i'. IMacnamara, 9 East, 157 ; have been stated, it is still fatal. Wliita- 
Stoddarl v. Palmer, 4 B. & B. 2; Phillips ker v. Bramson, 2 Pauie, C. C. 209.] 

V. Shaw, 4 B. & A. 435; 5 B. & A. 964. 



84 LAW OF EVIDENCE. [PART II. 

lapse of timc.^ If, therefore, a prescriptive right be set forth as 
the foundation of the action, or be pleaded in bar and put in issue, 
it must be proved to the fnll extent to which it is claimed; for 

/every fact alleged is descriptive of the supposed grant. Thus, if 
in trespass, for breaking and entering a several fishery, the plain- 
tiff, in his replication, prescribes for a sole and exclusive right of 
fishing in four places, upon which issue is taken, and the proof be 
of such right in only three of the places, it is a fatal variance. Or, 
if in trespass, the defendant justify under a prescriptive right of 
common on five hundred acres, and the proof be, that his ancestor 

X had released five of them, it is fatal. Or if, in replevin of cattle, 
the defendant avow the taking damage feasant, and the plaintiff 
plead in bar a prescriptive right of common for all the cattle, on 
which issue is taken, and the proof be of such right for only a part 
of the cattle, it is fatal. ^ 

§ 72. But a distinction is to be observed between cases, where 
the prescription is the foundation of the claim, and is put in issue, 
and cases where the action is founded in tort, for a disturbance of 
the plaintiff in his enjoyment of a prescriptive right. For in the 
latter cases it is sufficient for the plaintiff to prove a right of the 
same nature with that alleged, though not to the same extent ; 
the gist of the action being the wrongful act of the defendant, in 
disturbing the plaintiff in his right ; and not the extent of that 
ridit. Therefore, where the action was for the disturbance of the 
plaintiff in his right of common, by opening stone quarries there, 
the allegation being of common, by reason both of a messuage and 
of land, whereof the plaintiff was possessed, and the proof, in a trial 
upon a general issue, being of common by reason of the land only, 
it was held no variance ; the court observing, that the proof was 
not of a different allegation, but of the same allegation in part, 
which was sufficient, and that the damages might be given accord- 
ingly.^ Yet in the former class of cases, where the prescription 
is ex[)rcssly in issue, proof of a more ample right than is claimed 
will not 1)C a variance ; as, if the allegation be of a right of com 
mon for sheep, and the proof be of such right, and also of common 
for cows.* 

1 Supra, § 58 [post, vol. 2, § 537-546, Yarley v. Turnock, Cro. Jac. 629 ; Mani- 
tit. PrkscriptionJ. fold v. Pennington, 4 B. & C. 161. 

2 Ko^ers V. Allen, 1 Campb. 313, 315; * Bushwood v. Pond, Cro. El. 722; 
Rotherliani v. Green, Noy, 67 ; Conyers Tewksbury v. Bricknell, 1 Taunt. 142; 
i;. Jackson, Clayt. 19 ; Bull. N. P. 299. supra, §§ 58, 67, 68. 

a Rickets v Salway, 2 B. & A. 860; 



CHAP. II.] THE SUBSTANCE OF THE ISSUE. 85 

§ 73. But the party may now, in almost every case, ovoid the 
consequences of a variance between the allegation in Jhe|)lea(lings 
and the state of facts proved, ly amendment of the rccorcL This 
power was given to the courts in England l)y Lord Tenderden's 
Act,i in regard to variances between matters in writing or in print, 
produced in evidence, and the recital thereof upon the record ; and 
it was afterwards extended 2 to all other matters, in the judgment 
of the court or judge not material to the merits of the case, upon 
such terms as to costs and postponement as the court or judge may 
deem reasonable. The same power, so essential to the administra- 
tion of substantial justice, has been given by statutes to the courts 
of most of the several states, as well as of the United States ; and 
in both England and America these statutes have, with great pro- 
priety, been liberally expounded, in furtherance of their beneficial 
design.3 The judge's discretion, in allowing or refusing amend-! ) I 
ments, like the exercise of judicial discretion in other cases, cannot,! , \ 
in general, be reviewed by any other tribunal.* It is only in thel 
cases and in the manner mentioned in the statutes, that the pro- 
priety of its exercise can be called in question. 

1 9 Geo. IV. c. 15. Lamey v. Bishop, 4 B. & Ad. 479 ; Briant v. 

2 By Stat. 3 & 4 Wm. IV. c. 42, § 23. Eicke, Mood. & Malk. 35'J ; Parks v. Edge, 
8 See Hanbury v. Ella, 1 Ad. & El. 61 ; 1 C. & M. 42U ; Masternian v. Judson, 8 

Parry v. Eairhurst, 2 Cr. M. & R. I'JO, Bing. 224 ; Brooks v. Blancluird, 1 C. & 
1<J6; Doe v. Edwards, 1 M. & Rob. 31'J ; M. 779; Jelfr. Oriel, 4 C. & P. 22. The 
6 C. & P. 208, s. c. ; Hemming v. Parrv, American cases, which are very numer- 
6 C. & P. 580 ; Mash v. Densham, 1 M. & ous, are stated in 1 Mctcalf & Perkins's Di- 
Rob. 442; Ivey v. Young, Id. 545; How- gests, p. 145-162, and in Putnam's Supple- 
ell V. Thomas, 7 C. & P. 342; Mayor, &c., ment, vol. 2. p. 727-730. [See also post, 
of Carmarthen v. Lewis, 6 C. & P. 608; vol. 2, § 11 a-U e.] ^ ^ „., 
Hill V. Salt, 2 C. vt M. 420 ; Cox v. Paint- * Doe v. Errington, 1 M. & Rob. 344, 
er 1 Nev. & P. 581 ; Doe r. Long, 9 C. & note ; Mellish u. Richardson, 9 Buig. 12o; 
P. 777 ; Ernest v. Brown, 2 M. &^Rob. 13 ; Parks v. Edge, 1 C. & M. 42'.) ; Jcnkuis v. 
Storv V. Watson, 2 Scott, 842 ; Smith v. Phillips, 9 C. & P. 766 ; Mcrnam v. Lang- 
Braiidram, 9 Dowl. 430; Whitwell v. don, 10 Conn. 4(iO, 473; Clapp c. Balch, 
Scheer, 8 Ad. & El. 301 ; Read r. Duns- 3 Greenl. 216, 219 ; Mandevdie v. Wilson, 
more, 9 C. & P. 588 ; Smith v. Knowel- 5 Cranch, 15 ; Marine Ins. Co. v. Ilodg- 
den, 8 Dowl. 40 ; Norcott v. Mottram, 7 son, 6 Cranch, 206 ; Walden i-. Craig, 9 
Scott, 176; Lcggei-. Boyd, 5 Bing. N. C. Wheat. 576; Chirac r. Reinicker, 11 
240. Amendments were, refused in Doe Wheat. 302; Tnited States v. Butord, o 
«. Errington, 1 Ad. & El. 750; Cooper Peters, 12, 32; Benner i-. Frey, 1 Bmn. 
V. Wiiitehouse, 1 C. & P. 545; John c. 366; Bailey r. Musgrave, 2 S. & R. 21^; 
Currie, Id. 618 ; Watkins v. Morgan, Id. Bright i: Sugg, 4 Dever. 492. But it the 
661 ; Adams r. I'ower, 7 C. & P. 76 ; judge exercises his discretion m a manner 
Brashler v. Jackson, 6 M. & W. 549 ; Doe clesirly and manitestly wrong, it is said 
V. Rowe, 8 Dowl. 444 ; Einpson v. Grittin, that the court will interfere and set it 
3P. &D. 168. The following are cases right, llackman c. lerme, 1 31. \^ W. 
of variance, arising under Lord Tenter- 505 ; Geacli i-. Ingdl, 9 Jur. 691 ; 14 M. 6g 
den's Act. Bentzing v. Scott, 4 C. .^ P. W. 95. 
24; Moilliet v. Powell, 6 C. & P. 223; 

VOL. I. 8 



86 LAW OF EVIDENCE. [PART II, 



CHAPTER III. 



OP THE BURDEN OF PROOF. 

[ * § 74. The burden of proof is upon him who takes the afiftrmative of the issue. 

75. The phiintiff will have the open and close, if it be necessary for him to give 

any proof, in the first instance, even as to damages. 

76. This will enibi-ace all actions where damages are unlic^uidated, even where no 

general issue is pleaded. 

77. Proceedings not according to the common law, are conducted in a similar 

mode. 

78. Where the action is based upon negative averments, proof must be given 

in their support in the first instance. 
79 and n. But where the negative fact is peculiarly in the knowledge of defendant, 
slight proof is sufficient. 

80. Where the action is based upon a negative breach of duty, some evidence 

must be given in support of the allegations. 

81. Many other cases where negative is required to be proved.] 

§ 74. A THIRD RULE, wliicli governs in the production of evidence, 
is, that the obligation of proving any fact lies upon tJie party who 
substantially asserts the affirmative of the issue. This is a rule of 
convenience, adopted not because it is impossible to prove a nega- 
tive, but because the negative does not admit of the direct and 
simple proof of which the affirmative is capable.^ It is, therefore, 
generally deemed sufficient, where the allegation is affirmative, to 
oppose it with a bare denial, until it is established by evidence. 
Such is the rule of the Roman law. Ul incumbit probatio qui elicit, 
non qui negat? As a consequence of this rule, the party who assorts 
the affirmative of the issue is entitled to begin and to reply ; and 
having begun, he is not permitted to go into ^lalf of his case, and 

1 Drangnet v. Prudhommc, 3 Louis. R. any aspect of the cause ; the latter shifts 

83, 80 ; Costigaii v. Mohawk & Hudson from side to side in the progress of a trial 

K. Co. 2 Denio, GO'J. [Powers v. Russell, acconling to the nature and strength of 

13 Pick. 69, 76 ; Commonwealth v. Tuey, the proofs oiTered in support or denial of 

8 Cush. 1 ; Bm-nham v. Allen, 1 Gray, the main fact to be established. Central 

496, 499; Crownlnshield v. Crownin- Bridge Corporation v. Butler, 2 Gray, 

shield, 2 Gray, r)24, 520. The burden of 132; Blanchard v. Young, 11 Cush. 345; 

proof and the weight of evidence are two Spaulding v. Hood, 8 Cush. 605, 606]. 

very ditferent things. The former re- ^ Dig. lib. 22, tit. 3,1. 2; Mascard.de 

mains on the party atKrming a fact in sup- Prob. Concl. 70, tot. ; Concl. 1128, n. 10. 

I)ort of his case, and does not change in See also Tait on EvicJ. p. 1. 



CHAP. III.] THE BURDEN OF PROOF. 87 

reserve the remainder ; but is generally obliged to develop the wholc.^ 
Regard is had, in this matter, to the substance and eilect of tho 
issue, rather than to the form of it ; for in many cases the party, by 
making a sliglit change in his pleading, may give the issue a nega- 
tive or an affirmative form, at his pleasure. Therefore in an action 
of covenant for not repairing, where the breach assigned was that 
the defendant did not repair, but suffered the premises to be ruin- 
ous, and the defendant pleaded that he did repair, and did not suf- 
fer the premises to be ruinous, it was held, that on this issue the 
plaintiff should begin.^ If the record contains several issues, and 
the plaintiff hold the affirmative in any one of them, he is entitled 
to begin ; as, if in an action of slander for charging the plaintiff 
with a crime, tlie defendant should plead not guilty, and a justifica- 
tion. For wherever the plaintiff is obliged to produce any proof in 
order to establish his right to recover, he is generally required to go 
into his whole case, according to the rule aljove stated, and there- 
fore is entitled to reply. How far he shall proceed in his i)roof, in 
anticipation of the defence on that or the other issues, is regulated 
by the discretion of the judge, according to the circumstances of 
the case ; regard being generally had to the question, whether the 
whole defence is indicated by the plea, with sufficient particularity 
to render the plaintiffs evidence intelligible.^ 

§ 75: Whether the necessity of proving damages^ on the part of 
the plaintiff, is such an affirmative as entitles him to begin and 

1 Rees V. Smith, 2 Stark. R. 31 ; 3 2 Soward v. Leggatt, 7 C. & P. 613. 
Chittv, Gen. Pract. 872-877 ; Switl's Law ^ ii^es v. Sniitli, 2 Stark. R. 31 ; Jack- 

of Evid. p. 152; Bull. N. P. 298; Browne son v. Hcsketh, Id. 518 ;' James v. Salter, 

V. Murray, R. & Mood. 254; Jones v. 1 M. & Rub. 501 ; Rawlins c. Desborongh, 

Kennedy," 11 Pick. 125, 132. The true 2M. &Rub. 328; Comstock r. Hadlyme, 

test to determine which party has the 8 Conn. 2t;i ; Curtis r. Wheeler, 4 C. & 

right to beirin, and of com-se to determine P. I'JIJ ; 1 M. & M. -I'.K'., s. c. ; Williams v. 

where is the burden of proof, is to consid- Thomas, 4 C. & P. 234 ; 7 Pick. 100, per 

er which party would be entitled to the Parker, C. J. In Browne r. Mm-ray, Ry. 

verdict, if no' evidence were ottered on & Mood. 254, Lord C. J. Abbott gave the 

either side ; for tlie burden of proof lies plaintitf his election, after proving the 

on the partv against whom, in such case, general issue, eitlier to proceed inmiedi- 

thc verdict" ouiilit to be given. Leete v. ately with all his proof to rebut the antici- 

Gresliam Lite Ins. Co. 7 Kng. Law & Eq. patcd defence, or to reserve such i)roof 

Rep. 578; 15 Jur. IIGI. And see Hack- till the defendant had closed his own evi- 

man v. Fernie, 3 M. & W. 510. [ * Mr. dence ; only refusing him the privilege of 

Tavlor suiigests another test : To exam- dividing liis case into halves, giving part 

ine" what would be tlie etlect of striking in tiie first instance, and tlie residue after 

out of the record the allegations to be tbe defendant's case was ju-oved. [York c. 

proved, that tiie burden of proof rests up- I'ease, 2 (iray, 282 ; llolbrook c. McBride, 

on tlie party whose case would be thereby 4 lb. 218 ; Cashing v. Billings, 2 Cush. 

destroyed. " 1 Taylor Ev. § 338 ; Amos c. 158.] 
Hughes, 1 M. & Rob. 404, jjer Alder- 
son, B.] 



88 LAW OF EVIDENCE. [PART II. 

reply, is not perfectly clear by the authorities. Where such evi- 
dence forms part of the proof necessary to sustain the action, it 
may well be supposed to fall within the general rule ; as, in an 
action of slander, for words actionable only in respect of the special 
damage tlierol)y occasioned ; or, in an action on the case, by a 
master for the beating of his servant ^9er quod servttium amisit. It 
would seem, however, that whore it appears by the record, or by 
the admission of counsel, that the damages to be recovered are 
only nominal, or are mere matter of computation, and there is no 
dispute about them, the formal proof of them will not take away 
the defendant's right to begin and reply, whatever be the form of 
the pleadings, provided the residue of the case is affirmatively 
justified by the defendant.^ And if the general issue alone is 
pleaded, and the defendant will, at the trial, admit the whole of 
the plaintiff's case, he may still have the advantage of the beginning 
and reply .^ So also in trespass quare clauBum fregit, where the 
defendant pleads not guilty as to the force and arms and whatever 
is against the peace, and justifies as to the residue, and the dam- 
ages are laid only in the \\?,\\dX formula of treading down the grass, 
and subverting the soil, the defendant is permitted to begin and 
reply ; there being no necessity for any proof on the part of the 
plaintiff."^ 

§ 76. The difficulty in determining this point exists chiefly in 
those cases, where the action is for unliquidated damages, and the 
defendant has met the whole case with an affirmative plea. In 
these actions the practice has been various in England ; but it has 

1 Fowler v. Coster, 1 Mood. & M. 243, ner, Id. 721 ; Mills v. Oddy, Id. 728 ; 

per Lord Tenterden. And see the re- Scott v. Hull, 8 Conn. 296. But see infra, 

porter's note on that case, in 1 Mood. & § 7G, n. 4. 

M. 278-28L Tiie dictum of the learned =* Hodges v. Ilolden, 3 Campb. 366 ; 

judge, in Urooks v. Barrett, 7 Pick. 100, Jackson v. Hesketh, 2 Stark. 11. 518 ; 

is not supposed to militate with this rule ; Pearson v. Coles, 1 Mood. & Eob. 206 ; 

but is conceived to apply to cases where Davis v. Mason, 4 Pick. 156 ; Leech v. 

proof of the note is required of tlie i)lain- Arinitage, 2 Dall. 125. [WIicmm:) a deferid; 

tiff. Sanford v. Hunt, 1 C. & P. 118; ant under a rule of conrt filed an ailniis- 

(ioodlitle ('. IJraham, 4 T. 11. 4'.)7. [For sion of the plaintiff's j^iriiin'i j'u'ii cnsi', Hi 

a qualification of Erooks /'. Barrett, see order' to obtain tlie riuht to open and 

Crowninshield r. Crowninshield, 2 Gray, close, ho was held not to be thereby ^4: 

528.] top] led from setting up in defence the 

- Tucker v. Tucker, 1 Mood. & M. statute of limitations. Ennnons v. Hay- 

536; Fowler v. Coster, Id. 241; Doe v. ward, 11 Cush. 48; nor from showing that 

Barnes, 1 M. & llob. 386 ; Doe v. Smart, the plaintiff had no title to the note sued 

Id. 476; Fish v. Travers, 3 C. & P. 578; on. Si)aulding v. Hood, 8 Cush. 602. An 

Comstock D. Hadlyme, 8 Conn. 261 ; La- auditor's report in favor of the plaintiff 

con ». Higgins, 3 Stark. R. 178 ; Corbett will not give the defendant the right to 

V. Corbett, 3 Camjjb. 368 ; Foman v. open and close. Snow v. Batchelder, 8 

Thompson, 6 C. & P. 717 ; Smart v. Ray- Cush. 513.] 



CHAP. III.] 



THE BUEDEN OF PROOF. 



89 



at Icng-th been settled by a rule, by tlie fiftocii judges, that tlie 
plaintiff shall begin in all actions for personal injuries, liljol, and 
slander, though the general issue may not be pleaded, and the 
affirmative be on the defendant.^ In actions upon contract, it was, 
until recently, an open question of practice ; having been some- 
times treated as a matter of right in the party, and at other times 
regarded as resting in the discretion of the judge, under all the 
circumstances of the case.^ But it is now settled, in accordance 
with .the rule adopted in other actions.^ In this country it is 
generally deemed a matter of discretion, to be ordered by the 
judge at the trial, as he may think most conducive to the adminis- 
tration of justice ; but the weight of authority, as well as the anal- 
ogies of the law, seem to be in favor of giving the opening and 
closing of the cause to the plaintiff, wherever the damages are in 
dispute, unliquidated, and to be settled by the jury upon such 
evidence as may be adduced, and not by computation alone.* 
§ 77. Where the proceedftigs are not according to the course of 



1 Carter v. Jones, 6 C. & P. 64. 

2 Bedell v. Eussell, Ky. & M. 293; 
Fowler v. Coster, 1 M. & M. 241 ; Revett 
r. Braham, 4 T. R. 4"J7 ; Hare v. iMuiui, 1 
IM. & M. 241, note ; Scott v. Hull, 8 Conn. 
2',)6 ; Burrell v. Nicholson, 6 C. & P. 202 ; 
1 INI. & R. 304, 30G ; Hoggett v. Exley, 9 
C. & P. 324. See also 3 Chitty, Gen. 
Practice, 872-877. 

» Mercer v. Whall, 9 Jur. bip ; 5 Ad. 
& El. 447, N. s. 

* Such was the course in Young v. 
Bairncr, 1 Esp. 103, which was assumpsit 
for work, and a plea in ahatement for the 
non-joinder of other defendants ; Robey 
r. Howard, 2 Stark. R. 555, S. P. ; — 
Staustield v. Lew, 8 Stark. R. 8, S. P. ; 
— Lacon v. Hig-.unns, 2 Stark. R. 178, 
whore in assumpsit for goods, coverture 
of the defendant was the sole plea; — 
Hare v. INIunn, 1 M. & M. 241, note, which 
was assumpsit for nu)ney lent, with a plea 
in abatement for the non-joinder of other 
defendants; — Morris ?'. Lotan, 1 i\l. & 
Rol). 233, S. P. ; Wood d. Priugle, Id. 277, 
which was an action for a libel, with sev- 
eral special pleas of justification as to 
part, but no general issue ; and as to the 
parts not justified, judgment was suffered 
i\v default. See ace. Comstock v. Ilad- 
Ivme, 8 Conn. 2(31 ; Aver v. Austin, 
Pick. 225; Hoggett v. Exley, 9 C. & P. 
324; 2 M. & Rob. 251, s. c. On the other 
hand are Cooper ?'. Waklev, 3 Car. & 
P. 474 ; 1 M. & M. 248, s. c. whicli was a 
case for a libel, with pleas in justification, 



and no general issue ; but this is plainly 
contradicted by the subsequent case of 
Wood V. Pringle, and has since been over 
ruled in Mercer v. Whall ; — Cotton v. 
James, 1 M. & M. 273 ; 3 Car. & P. 505, 
s. c, winch was trespass for entering the 
plaintiff's house, and taking his goods with 
a plea of justification under a commission 
of bankrui)tcy ; but this also is expressly 
contradicted in Morris ;-. Lotan ; — Bedell 
V. Russell, Ry. & ^I. 2Uo, which was tres- 
pass of assault and battery, and battery, 
and for shooting the plaintiff, to which a 
justification was pleaded ; where Best, J., 
reluctantly yielde<l to the supposed au- 
thority of Hodges V. Holden, 3 Campb. 
366, and Jackson ;•. Hesketh, 2 Stark. R. 
581 ; in neither of which, however, were 
the damages controverted; — Fish v. Trav- 
ers, 3 Car. & P. 578, decided by Best, J., 
on the authority of Cooper v. Wakley, 
and Cotton c. James ; — Burrell v. Nichol- 
son, 6 Car. & P. 202, which was trespass 
for taking the i)laintitf's goods in his 
house, and detaining tiiem one hour, which 
the defendant justified as a distress for 
parish rates ; and the only issue was, 
whether the house was within the parish 
or not. But here, also, the damages were 
not in dispute, and seem to have been re- 
garded as merely nominal. See also 
Scott V. Hull, 8 Ccmn. 296. In Norris v. 
Ins. Co. of North America, 3 Yeates. 84, 
which was covenant on a policy of iusm-- 
ance, to which performance was pleadeil, 
the damages were not then iu dispute, the 



8* 



90 



LAW OF EVIDENCE. 



[part II. 



the common law, and where, consequently, the onus prohandl is 
not teclmically presented, the courts adopt the same principles 



parties having provisionally agreed upon 
a mode of liquidation. But in England 
the entire subject has recently umlergone 
a review, and tiie rule has been estab- 
lished, as ai>plicable to all personal ac- 
tions, that the plaintiff shall begin, wher- 
ever he goes for substantial damages not 
already ascertained. Mercer v. Whall, 9 
Jur. 576 ; 5 Ad. & El. 447, n. s. In this 
ease Lord Denman, C. J., in delivering 
the judgment of the court, expressed his 
opinion as follows : " The natural course 
would seem to be, that the plaintiff should 
bring Iiis own cause of complaint before 
the court and jury, in everj^ case where 
he has any thing to prove eitJier as to the 
facts necessary for his obtaining a verdict, 
or as to the amount of damage to which 
he conceives the proof of such facts may 
entitle him. The law, however, has by 
some been supposed to difier from this 
course and toi-equire that the defendant by 
admitting the cause of action stated on the 
record, and pleading only some alfirina- 
tive fact, which, if proved, will defeat the 
plaintiff's action, may entitle himself to 
open the proceeding at the trial, anticipa- 
ting the plaintiff's statement of his injury, 
disparaging him and his ground of com- 
plaint, offering or not ofiering, at his own 
option, any proof of his defensive allega- 
tion, and, if he offers that proof, adapting 
it not to the ])laintitt"s case as established, 
but to that which he chooses to represent 
that the plaintiff's case will be. It ap- 
pears expedient that the plaintiff should 
begin, in order that the judge, the jury, 
and the dclbndant himself should know 
precisely how the claim is shaped. This 
disclosure may convince the defendant 
that the defence which he has pleaded 
cannot be established. On hearing the 
extent of the demand, the defendant may 
be induced at once to submit to it rather 
than persevere. Thus the affiiir reaches 
its natural and best conclusion. If this 
does not occur, the plaintiff, by bringing 
forward his case, points his attention to 
the proy)er object of the trial, and enables 
the defendant to meet it with a full under- 
standing of its nature and character. If 
it were a presmnption of law, or if expe- 
rience prove, that tlie plaintiff's evidence 
must alwaj's occu])y many hours, and that 
the defendant's could not last more than as 
many minutes, some advantage would be 
secured by postponing the plaintiff's case 
to that of the defendant. But, first, the 
direct contrary in both instances may 
be true ; and, secondly, the time would 
only be saved by stopping the cause for 



the purpose of taking the verdict at the 
close of the defendant's proofs, if that ver- 
dict were in favor of the defendant. Thi^ 
has never been done or projjos^'d ; if it 
were suggested, the jury would be likely 
to say, on most occasions, that they could 
not form a satisfactory opinion on the ef- 
fect of the defendant's proofs till they liad 
heard tlie grievance on which tlie plaintiff 
founds his action. In no other case can 
any practical advantage bo suggested as 
arising from tiiis method of proceeding. 
Of the-disadvantages that may result from 
it, one is the strong temptation to a defend- 
ant to abuse the privilege. If he well 
knows that the case can be proved against 
liim, there may be skilful management in 
confessing it by his plea, and atiirming 
something bj' way of defence Mhicii he 
knows to be untrue, for the mere purpose 
of beginning." See 9 Jur. 578; 5 Ad. & 
El. 458, N. s. Ordinarily speaking, the 
decision of the judge, at XUi Friua, on a 
matter resting in his discretion, is not sub- 
ject to revision in any other court. But 
in Ilackman v. Fernie, 5 M. & W. 505, the 
court observed, that though they might 
not interfere in a very doubtful case, yet 
if the decision of the judge " were clear- 
ly and manifestly wrong," they would in- 
terfere to set it right. In a subsequent 
case, however, it is said that instead of 
" were clearly and manifestly wrong," the 
language actually used by the court was, 
" did clear and manifest wrong; " meaning 
that it was not sufficient to show merely 
that the wrong part}' had begun, but that 
some injustice had been done in conse- 
quence. iSee Edwards v. Matthews, 11 
Jur. 3'J8. See also Geach v. Ingall, 9 Jur. 
691 ; 14 M. & W. 95. [In Page v. Os- 
good, 2 Gray, 2G0, the question arose, who 
should have the opening and close to the 
jury, the defendant admitting the plain- 
tiff's cause of action, and the onh' issue 
being on the detenilant's declaration in 
set-off; which demand in set-off the stat- 
ute provides " shall be tried in like man- 
ner as if it had been set forth in an action 
brought by him," and there being a uni- 
form rule of court giving tlie right of 
o])ening and closing in all cases to the 
plaintiff. The court held that there was no 
reason for departing from the rule which 
had been found to be of great practical 
convenience, and overruled the excep- 
tions, thus sustaining the plaintiff's right 
in such a case to open and close.] [*It 
seems to have been considered, in some of 
the American states, that in actions like 
slander, where the defendant admits the 



CHAP. III.] 



THE BURDEN OF PROOF. 



01 



which govern in proceedings at common Uiw. Thus, in the prolate 
of a u< ill, as the real qncstion is, whether tliere is a valid will or 
not, the executor is considered as holding the aOirniative ; and 
therefore he ojjcns and closes the case, in whatever state or condi- 
tion it may be, and whether the question of sanity is or is not 
raised. 1 

§ 78. To this general rule, that the burden of proof is on the 
party holding the affirmative, there are some exceptiom^ in which 
the proposition, though negative in its terms, must be proved l)y 
the party Avho states it. ^ One class of these exceptions will be found 
to include those cases in which the plaintiff (/rounds Ms right of 
action upon a negative allegation, and where, of course, the establish- 
ment of this negative is an essential element in his case ; ^ as, for 
example, in an action for ha\^ing prosecuted the plaintiff maliciously 
and without probable cause. Here, the want of probable cause 
nmst be made out by the plaintiff, by some affirmative proof, though 
the proposition be negative in its terms.^ So, in an action by 
husband and wife, on a promissory note made to the wife after 
marriage, if the defendant denies that she is the meritorious cause 
of action, the burden of proving this negative is on him.* So, in 
a prosecution for a penalty given by statute, if the statute, in 
describing the offence, contains negative matter, the count must 
contain such negative allegation, and it must be supported by 
prima facie proof. Such is the case in prosecutions for penalties 
given by statutes, for coursing deer in enclosed grounds, not having 



4^ 



speaking of the words, and offers evidence 
in justitication, or even in niiti>;ation of 
damages, that lie is entitled to o])en the 
case. Ganl v. Fleming, 10 Ind. 'lb. Bnt 
that proposition is certainly not maintain- 
able, since the plaintiff is still entitled to 
give evidence of facts showing sjiecial 
malice, in aggravation of damages, and to 
open the case generally npon the question 
of damages. The English form of ex- 
pression npon this jioint, will go far to in- 
dicate the precise inqnirj^ upon which the 
right shonltl turn. The inquiry tliere is, 
which party has the right "to begin'"? 
And that will determine where the 
right to close rests. The party first re- 
quired to give proof has the opening and 
the general close; the other party being 
required to give all his evidence, both in 
reply to plaintiff's case and support of his 
own, at one time, leaving the general re- 
ply to the other i)arty.] 

1 Buckminster D. Terry, 4 Mass. 593; 



Brooks V. Barrett, 7 Pick. 94 ; Comstock 
V. Hadlyme, 8 Conn. 254 ; Ware v. "Ware, 

8 Greenl. 42; Hubbard v. Hubbard, 6 
Mass. 397. [Crowninshield i;. Crowniu- 
shicld, 2 Gray, 524, 528.] 

■^ 1 Chitty on PI. 20G ; Spiers v. Parker, 
1 T. R. 141 ; Rex r. Pratten, G T. R. 559 ; 
Holmes v. Love, 3 B. & C. 242 ; Lane v. 
Crombie, 12 IMck. 177; Harvey v. Tow- 
ers, 15 Jur. 544 ; 4 Eng. Law & Eq. Rep. 
531. [*^Ir. Taylor, Ev. § 339, states 
the rule to be, that where the affirmative 
is supported by a disputable presumi>tion 
of law, the party supporting the negative 
must call witnesses, in the first instance, to 
overcome this presiunption.] 

'^ Purcell V. Macnamara, 1 Campb. 199 ; 

9 East, 3(')1, s. c. ; Ulmer ;-. Leiand, 1 
Greenl. 134; Gibson v. Waterhouse, -4 
Greenl. 22(j. 

* Philliskirk v. Pluckwell, 2 JL & S. 
395 ; per Bayley, J. 



92 LAW OP EVIDENCE. [PART II. 

the consent of the owner ; ^ or for cutting trees on lands not the 
party's own, or taking other property, not having the consent of 
the owner ; ^ or for selling, as a peddler, goods not of the produce 
or manufacture of the country ;3 or, for neglecting to prove a will, 
without just excuse made and accepted by the Judge of Probate 
therefor.'' In these, and the like cases, it is obvious, that plenary 
j)roof on the part of the affirmant can hardly be expected ; and, 
therefore, it is considered sufficient if he offer such evidence as, in 
the absence of counter testimony, would afford ground for presum- 
ing that tlic allegation is true. Thus, in an action on an agree- 
ment to pay XlOO, if the i)laiiitiff would not send herrings for one 
year to the London market, and, in particular, to the house of J. & 
A. Millar, ])roof that he sent none to that house was held sufficient 
to entitle him to recover, in the abse^ice of opposing testimony.^ 
And generally, where a party seeks, from extrinsic circumstances 
to give effect to an instrument which, on its face, it would not 
have, it is incumbent on him to prove those circumstances, though 
involving the proof of a negative ; for in the absence of extrinsic 
proof, the instrument must have its natural operation, and no other. 
Therefore, where real estate was devised for life with power of 
appointment by will, and the devisee made his will, devising all 
his lands, but without mention of or reference to the power, it was 
held no execution of the power, unless it should appear that he 
had no other lands ; and that the burden of showing this negative 
w^as upon the party claiming imder the will as an appointment.^ 

§ 79. But where the subject-matter oi_ a negative avormeiit lies 
peculiarly tvithin t he hio tvledge of the other party, the aver ment is 
takeii^^as true, unless disproved by, that party. Such is the case in 
civil or criminal prosecutions for a penalty for doing an act which 
the statutes do not permit to be done by any persons, except those 
who are duly licensed therefor ; as, for selling liquors, exercising 
a trade or profession, and the like. Here the party, if licensed, 
can immediately show it, without the least inconvenience ; whereas, 

1 Rex V. Ropers, 2 Campb. 654 ; Rex Williams v. Ilinsliam and Quincy Turn- 

V. Jarvis, 1 East, (543, note. pike Co. 4 Pick. 341 ; Kex v. Stone, 1 

•■^ Little V. Thompson, 2 Greenl. 128; East, 637; Rex v. Bunlitt, 4 B. & Aid. <J5, 

Rex V. Hazy et uL, 2 C. & P. 458. 140 ; Rex v. Turner, 5 M. & S. 206 ; 

'^ Commonwealth v. Samuel, 2 Pick. Woodbury v. Frink, 14 lU. 279. 
103. 5 Calcler ;-. Kutherlbrd, 3 B. & B. 302; 

* Smith V. Moore, 6 Greenl. 274. See 7 Moore, 158, s. c. 
other examples in Commonwealth r. Max- ^ Doe v. Johnson, 7 Man. & Gr. 1047. 

well, 2 Pick. 139 ; 1 East, P. C. 16G, § 15 ; 



CHAP. III.] 



THE BURDEN OF PROOF. 



93 'K- 



if proof of the negative were required, the inconvenience would 
be very great.^ 

§ 80. So, where the negative allegation involves a charge of 
criminal neglect of duty, whether oflicial or otherwise ; or fraud ; 
or the wrongful violation of actual lawful possession of property ; 
the party making the allegation must prove it ; for in these cases 
the presimiption of law, which is always in favor of innocence, 
and quiet possession, is in fiivor of the party charged. Thus, in an 
information against Lord Halifax, for refusing to deliver up the 
rolls of the auditor of the Exchequer, in violation of his duty, the 
prosecutor was required to prove the negative. So, where one in 
office Avas charged with not having taken the sacrament within a 
year ; and where a seaman was charged with having quitted the 
ship, without the leave in writing required by statute ; and where a 
shipper was charged with having shipped goods dangerously com- 
bustible on board the plaintiff's ship, without giving notice of their 
nature to any officer on board, whereby the ship was burned and 
lost ; in each of these cases, the party alleging the negative was 



feu 



1 Rex V. Turner, 5 ^M. & S. 206 ; Smith 
V. Jeffries, 9 Trice, 257 ; Sheldon v. dark, 

1 Johns. 513 ; United States c. Ilayward, 

2 Gall. 485 ; Gening v. The State, 1 INIc- 
Cord, 573 ; Commonwealth v. Kimball, 7 
Met. 304 ; Harrison's case, Paley on Conv. 
45, n. ; Apothecaries' Co. v. Bentle3% Ky. 

6 Mood. 159; Haskill v. The Comraou- 
wealth, 3 B. Monr. 342; The State v. 
Morrison, 3 Dev. 299 ; The State v. Crow- 
ell, 12 Shepl. 171 ; Shearer v. The State, 

7 Blackf. 99. By a statute of Massachu- 
setts, 1844, ch. 102, the burden of proving 
a license for the sale of liquors is express- 
ly devolved on the person selling, in all 
prosecutions for selling liquors without a 
license. [See also Commonwealth r. Thur- 
low, 24 Pick. 374, 381, which was an 
indictment against the defendant for 
presuming to be a retailer of spirituous 
liquors without a license therefor. In this 
case the court did not decide the general 
question, saying that " cases may be af- 
fected by special circumstances, giving 
rise to distinctions apjilicable to tliem to be 
considered as they arise," but held under 
that indictment that the govenmient must 
produce prima facie evidence that the de- 
fendant was not licensed. See jwst, vol. 
8. § 24 and note. In Commonwealth v. 
Kimball, 7 Met. 304, the court held, in a 
similar indictment, that the docket and 
minutes of the county connnissioners 
before their records are made up, are com- 



petent evidence, and if no license to the 
detendant appears on such docket or min- 
utes (tlie county commissioners being the 
sole authority to grant licenses), it is pri- 
ma fade evidence that the defendant was 
not licensed. 

It has been decided that the provisions 
of the Massachusetts Act of 1844, ch. 102, 
do not ajiply to indictments under the law 
of 1855, ch. 405, which enacts that all 
buildings, &c., used for the illegal sale or 
keeping of intoxicating ^quors, shall be 
deemed common nuisances; — an Act of 
the same year (Acts 1855, ch. 215), mak- 
ing any sale or keeping for sale, witiiin the 
state, of intoxicating liquors unless in 
the original i)ackages, &c., without au- 
thority, an unlawful and criminal act. 
Tills was decided in Connnonwealth c. 
Lahey, S. J. C. Berkshire, Sept. T. Ib57, 
not j-et reported ; — which was an indict- 
ment imder the Act of 1855, ch. 405, for 
maintaining a connnon nuisance in keep- 
ing a building used for the illegal sale t)f 
intoxicating li(iuors. The court below 
ruled that the government need not show 
that the defendant was not licensed, but if 
the defendant relied on a license to sell in 
his defence, he should show that fact. 
The Supreme Judicial Com-t sustained 
the exceptions to this ruling. See note of 
the decision in this case in 20 Law Ke- 
porter (Oct. 1857), 3u2J. 



94 



LAW OF EVIDENCE. 



[part II. 



required to prove it.^ So, where the defence to an action on a 
policy of insurance was, that the i)hiintitr improperly concealed 
from the underwriter certain lacts and information which he then 
already knew and had received, it was held that the defendant was 

/bound to give some evidence of the non-connnunication.^ So, where 
the goods of the plaintilf arc seized and taken out of his possession, 
though for an alleged forfeiture under the revenue laws, the seizure 
is presumed unlawful until proved otherwise.^ 

§ 81. So, where infancy is alleged ;^ or, where one boj-n in law- 
ful wedlock is alleged to be illegitimate, the parents not being 
separated by a sentence of divorce ; ^ or, where insanity is alleged ; ^ 

• or, a person once living is alleged to be dead, the presumption of 
life not being yet worn out by lapse of time ; "' or, where nonfeasance 
or negligence is alleged, in an action on contract ; ^ or, where the 



1 United States v. Hayward, 2 Gall. 
498; llartwell v. Root, 19 Johns. 345; 
Bull. j\. i'. ['iJi^] ; liex V. Hawkins, 10 
East, 211; Frontine v. Frost, 3 B. & P. 
302; Williams v. E. India Co. 3 East, 
192. See also Commonwealth v. Stow, 1 
Mass. 54 ; Evans v. Birch, 3 Campb. 10. 
[So in an action against an officer tor neg- 
lecting to attacii property as the property 
of tiie plaintiff's debtor, tlie burden of 
proving tliat the property was so far tlie 
debtor's as to be lialjle to attachment as 
his, is upon the plaintiff througiiont, al- 
though tlie defendant claims tlie title to 
himself under a imrchase from tlie debtor. 
Phelps V. Cutler, 4 Gray, 139.] 

2 Elkin V. Jauson, 13 M. & W. 655. 

3 Aitclieson v. JSIaddock, Peake's Cas. 
162. An exception to this rule is admit- 
ted in Chancery, in the case of attorney 
and client ; it being a rule there, that if 
the attorney, retaining the connection, 
contracts with his client, he is subject to 
the burden of proving that no advantage 
lias been taken of the situation of the lat- 
ter. 1 Story, Eq. Jur. § 311 ; Gibson (;. 
Jeves, Ves. 278 ; Cane v. Ld. Allen, 2 
Dow, 289, 294, 299. [So in trespass 
brought by the owner of land against a 
railroad corporation, where the plaintiff 
has shown his title to the land, the entry 
by tlie defendants and the construction of 
their road upon it, the defendants must jus- 
tify by showing that this land is covered hy 
the authorized location of their road. Ila- 
zen V. Boston & Maine B. II. 2 Gray, 574, 
579. Where such land is shown or ad- 
mitted to be so covered by the location, 
the burden does not rest on the corpora- 
tion or its servants, to siiow that acts done 



on such land, as cutting down trees, were 
done for the purposes of the road. Brain- 
ard V. Clapp, 10 Cusli. 6. So every im- 
prisonment of a man is, ^rimd fade, a tres- 
pass ; and in an action to recover damages 
therefor, if the imprisonment is proved or 
admitted, the burden of justifying it is on 
the (U-feiidant. Metcalf, J., in Bassett v. 
Porter, 10 Cash. 420.1 

■* Borthwick v. Carruthers, 1 T. R. 
G48. 

s Case of the Banbm-y Peerage, 2 Selw. 
N. P. (by Wheaton) 558; Morris v. Da- 
vies, 3 Car. & P. 513. 

" Attorney-Gen. ?". Parnther, 3 Bro. C. 
C. 441, 443, per Lord Tliurlow ; cited with 
approbation in White v. Wilson, 13 Ves. 
87, 88 ; Hoge v. Fisher, 1 Pet. C. C. R. 
163. 

7 Throgmorton v. Walton, 2 Roll. R. 
461 ; Wilson v. Hodges, 2 East, 313 ; su- 
pra, § 41. 

» Crowley v. Page, 7 C. P. 790 ; Smith 
V. Davies, Id. 307 ; Clarke v. Spence, 10 
Watts, R. 335 ; Storv on Bailm. tj§ -15^, 
457, note (3d edit.) ; Brind r. Dale. 8 C. 
& P. 207. See further, as to the right to 
begin, and, of course, tlie b,urden of jiroof, 
Pontifex v. Jolly, 9 C. & P. 202; HaiMiett 
?». Johnson, Id. 206 ; Aston v. Perkcs, Id. 
231 : Gsborn '•. Thomi)son, Id. 337 ; Bing- 
ham V. Stanley, Id. 374 ; Lambert ;;. Hale, 
Id. 506 ; Lees v. Iloflstadt, Id. 599 ; Chap- 
man V. Emden, Id. 712 ; Doe v. Rowlands, 
Id. 734; Ridgway v. Ewliank, 2 M & 
Rob. 217 ; Hudson v. Brown, 8 C. & P. 
774 ; Soward v. Leggatt, 7 C. & P. 613; 
Bowles y. Neale, Id. 262; Richardson v. 
Fell, 4 Dowl. 10; Silk v. Humphrey, 7 C. 
& P. 14. 



CHAP. III.] THE BURDEN OF PROOF. 95 

want of a clue stamp is alleged, there being faint traces of a stanij) 
of some kind ; * or, where a failure of consideration is set up l)y th(i 
plaintiff, in an action to recover the money paid ; ^ or, where the 
action is founded on a deficiency in the quantity of land sold, and 
the defendant alleges, in a special plea, that there was no defi- 
ciency ; ^ the burden of proof is on the party making the allegation, J 
notwithstanding its negative character. 

[ § 81rt. Ill actions upon promissory notes or bills of exchange, if it be sliown that 
they were stolen, or otherwise fraudulently put in circulation, the burden of proof is 
on the holder to show that he took them in good faith. Monroe v. Cooper, 5 Pick. 
412; Worcester Co. Bank v. Dorchester, &c. Bank, 10 Cush. 488, 491 ; Wyer v. Dor- 
chester, &c. Bank, 11 Cush. 52 ; Bissell v. IVI organ, lb. 198 ; Fahens v. Tirrell, 15 Law 
lieporter (Maj-, 1852), 44 ; Perrin v. Noyes, 39 Maine, 884 ; Goodman v. Harvey, 4 
Ad. & El. 870 ; Arbouru v. Anderson, 1 Ad. & El. N. 11. 504. According to recent 
decisions, that burden is very light. Worcester Co. Bank r. Dorchester, &c. Bank ; 
Wyer v. Dorchester, &c. Bank, iibi supra. But where the action is liy the holder of a 
bank-bill, and the defendant proves it to have been stolen, the plaintiff is not bound to 
show how he came by the bill, to enable him to recover upon it, but the defendants, to 
defeat the plaintiff's right to recover upon it, must show that he received it under such 
circumstances as to prevent the maintenance of his action. Wyer v. Dorchester, &c. 
Bank, ubi supra ; Solomons v. Baidc of England, 13 East, 13.5, note ; De la Chaumette 
V. Bank of England, 2 Barn. & Adolph. 385. 

§ 816. It would seem to be the true rule in crimmal cases, though there are some 
decisions to tlie conti'ary, that the burden of proof never shifts, but that it is upon 
the government throughout ; and that in all cases, before a conviction can be had, the 
jury must be satisfied, upon all the evidence, beyond a reasonable doubt, of the af- 
firmative of the issue presented by the government, to wit, that the defendant is guilty in 
manner and form as charged in the indictment. The opinion of the court, by Bige- 
low, J., in the case of Commonwealth i'. Mclvie, 1 Gray, 61-65, contains an accept- 
able and very able exposition of the general rule of law as to the bm-den of proof iii 
criminal cases, but it is too extensive to be here inserted. 

§ 81r. Although the above decision is carefully limited to that precise case, yet it 
would seem that its principle would cover all cases, including those in which the de- 
fendant relies on some distinct substantive ground of defence not necessarily connected 
with the transaction on which the indictment is founded, as insanity for instance. For in 
every case the issue which the government presents is the guilt of the defendant, and 
to prove this the jury must be satisfied not only that the defendant committed the act 
constituting the corpus delicti, but also that at the time of the commission thereof, he 
liad intelligence and capacity enough to have a criminal intent and purpose; because, 
" if his reason and mental powers are either so deficient that lie has no will, no con- 
science or controlling mental power, or if, through the overwhelming violence of men- 
tal disease, his intellectual power is for the time obliterated, he is not a responsible 
moral agent, and is not punishable for criminal acts." By Shaw, C. J., in Common- 
wealth V. Rogers, 7 Met. 501 ; see Commonwealth v. Hawkins, 3 Gray, 465 ; 1 Ben- 
nett & Heard's Lead. Crim. Cases, 87, note to Commonwealth v. Rogers, and p. 347, 

1 Doe V. Coomlies, 3 Ad. & El. n. s. ^ McCrea v. Marshall, 1 Louis. An. 
687. R. 29. 

2 Treat v. Orono, 13 Shepl. 217. 



96 LAW OF EVIDENCE. [PART II. 

note to Commonwealth v. MeKie. And if the burden is on the government thus to 
satisfy the jury, it is difficult to see why the rule of proof beyond^ reasonable doubt 
does not apply ; and why a reasonable doubt of the sanity of the defendant should 
not require the jury to acquit. 

In the more recent case of Commonwealth v. Edd}', 7 Gra}', 583, which was an in- 
dictment against the defendant for the murder of his wife, and in which the insanity of 
the defendant was pressed to the jury as a defence, the court instructed the jury in 
substance that the burden of proof was on the government tliroughout, and did not 
sliift ; although, so far as the sanity of the defendant was concerned, the burden was 
sustaineil by the legal presumption that all men are sane, which presumption must 
stand until rebutted by proof to the contrary, satisfactory to the jiuy. 



CUAP. IV.] THE BEST EVIDENCE. 97 



CHAPTER IV. 

OF THE BEST EVIDENCE. 

[ * § 82. The best class or kind of evidence, in the power of the party, must be pro- 
duced. 
83 and 92. But proof that one acted, and was recognized as an officer, will be suf- 
ficient. 

84. Evidence is primary and secondary. Distinction considered. 

85. This distinction has reference to the substitution of oral for written evidence. 

86. Where the law requires a transaction to be by writing, it cannot be proved 

by other evidence. 

87. AH contracts reduced to writing, when directly in issue, must be produced. 

88. All writings material to the issue or the credit of witnesses must be produced. 

89. But where the writing is collateral merely, its production is not required. 

90. Writings merely suppletory, or not admissible for want of a stamp, do not ex- 

clude oral proof. All the impressions of same type, originals. 

91. Records and public documents proved by examined copies. 

93. General results from volimiinous documents may be proA^ed orally. 

94. Inscriptions on monuments proved orally. 

95.. In examinations on voir dire, documents need not be produced. 
96. The party's admission of the existence of a writmg admissible, but not as to 
its nature. 

96. The rule carried further in some cases. No restriction upon cross-examina- 

tion. 

97. Numerous apparent exceptions to the foregoing rule.] 

§ 82. A FOURTH RULE, wliicli governs in the production of 
evidence, is that which requires the best evidence of which the case 
in its nature is suscejjtible. This rule does not demand the great- 
est amount of evidence which can possibly be given of any fact ; 
but its design is to prevent the introduction of any, whicli, from 
the nature of the case, supposes that better evidence is in the 
possession of the party. It is adopted for the prevention of fraud ; 
for when it is apparent that better evidence is witliheld, it is fair 
to presume that the party had some sinister motive for not pro- 
ducing it, and that, if offered, his design would be frustrated.^ 
The rule thus becomes essential to the pure administration of 
justice. In requiring the production of the best evidence appli- 

1 Falsi prsesumptio est contra cum, qui mentis probare potest. Menoch. Consil. 
testibus probare conatur id quod instru- 422, n. 125. 

VOL. 1. 9 



98 LAW OF EVIDENCE. [PART H. 

cable to each particular fact, it is meant, that no evidence s hall 
be received Avhich is merely substitutionary Tii its nature, s oHiong 
as the original eviden ce can be had. The rule excludes only that 
evidence Avhicli itself indicates the existence of more original 
sources of information. But where there is no substitution of 



evidence but only a selection of weaker, instead of stronger proofi^ 
or an omission to supj)ly all the proofs ca])able of being pro duced, 
tKende is not infringed^^ ThusTa title by dce*cl nuut be proved 
IjiyTtie production of the deed itself, if it is Avithin the power of 
the party ; for this is the best evidence of which the case is sus- 
ceptible ; and its non-production would raise a presumption, that 
it contained some matter of apparent defeasance. But, being 
produced, the execution of the deed itself may be proved by only 
one of the subscribing witnesses, though the other also is at hand. 
And even the previous examination of a deceased subscribing 
witness, if admissible on other grounds, may supersede the neces- 
sity of calling the survivor.^ So, in proof or disproof of hand- 
writing, it is not necessary to call the supposed writer himself.^ 
And even where it is necessary to prove negatively, that an act 
was done without the consent, or against the Avill of anotlier, it is 
not, in general, necessary to call the person whose will or consent 
is denied,* 

§ 88. All rules of evidence, however, are adopted for practical 
purposes in the administration of justice ; and must be sO applied 
as to promote the ends for which they were designed. Thus, the 
rule under consideration is subject to exceptions, where the general 
convenience requires it. Proof, for example, that an individual 
has acted notoriously as a puljlic officer, is prima facie evidence 
of his official character, without producing his commission or 
appointment.^ 

1 Phil. & Am. on Evid. 4?.8 : 1 Phil. 352, 307 ; Rex ;•. Gordon, 2 Lonch. Cr. C. 

Evi(1.418; 1 Stark. Evid. 4:57; (ihijistbrd 581,585,586; Kox r. Sliollcy, Iil. :581, n. ; 

on Evid. 2G6-278 ; Tavloe v. Kig<rs, 1 Jacob v. United Slates, 1 Brockenb. 520 ; 

Peters, 591, 596; United States iC Hey- Milnor v. Tiilotson, 7 Peters, 100, 101; 

bum, G Peters, 352, 367 ; Minor v. Tillot^ Berrynian v. Wise, 4 T. 11. 3(')6 ; Bank of 

son, 7 Peters, 100, 101 ; [ * Shoenbergher U. States v. Dandridge, 12 Wheat. 70; 

r. Hackinan, 37 Penn. St. 887]. Doe r. Brawn, 5 B. & A. 243 ; Caiinell v. 

•'■ Wright V. Tatliam, 1 Ad. & El. 3. Curtis, 2 IJing. N. C. 22S, 234 ; Pex v. 

[See //'/>'f, § 569-575.] Verelst, 3 Canijib. 432; Bex i'. Howard, 

3 HuglieV cascv 2 East, P. C. 1002 ; 1 M. & Hob. 187 ; McGaliey v. Alston, 2 

MeGuire's case, lb.; Rex v. Benson, 2 M. & W. 206, 211 ; Kegina y. Vickery, 12 

Carapb. 508. Ad. & El. 478, n. s. ; infra, § 92. But 

* Suprn, § 77 ; Rex v. Hazy & Collins, there must be some color of riglit to the 

2 C. & P. 458. office, or an acquiescence on the part of 

s United States v. Reyburn, 6 Peters, the public for such length of time as will 



CHAP. IV.] 



THE BEST EVIDENCE. 



99 



§ 84. This rule naturally loads to the division GL-eVidence into 
Primary and Secondary. Primary evidence is ih]}i wliich we t^a^e 
■,iust men tioned as the best^HtlfiUCii, or that kiiicl^of proof wi^jcb , 
under any possible circumstances, atTords the greatest certeinty 
of the fact in (juestion ; and it is illustrated by the casfcf-a written 
document; the instrument itself being al\\;*"ays regarded as tlie 
primary or liest possible evidence of its existence -and contents. 
If the execution of an instrument is to l)e proved, the primary 
e%adence is the testimony of the subscribing witness, if there be 
one. Until it is shown that the production of the primary evi- 
dence is out of the party's power, no other proof of the fact is in 
general" adimttqd.^ 'All evidence falling short bftliis m "its" degree 
is termed secondary. The question, whether evidence is primary 
pr secondaryj has reference to the nature of the case in the abstract, 
and not to the peculiar circumstances under which the party in 
the particular cause on trial may be placed. It is a distinction 
of law, and not of fact ; referring only to the quality, and not to 
the strength of the proof. Evidence which carries on its face no 
indication that better remains behind is not secondary, but 
primary. And though all information must be traced to its 
source, if possible, yet if there are several distinct sources of 
information of the same fact, it is not ordinarily necessary to show 
that they have all been exhausted, before secondary evidence can 
be resorted to.^ 



authorize the presumption of at least a 
colorable election or appointment. Wil- 
cox V. Smith, 5 Wend. 231, 234. This 
rule is applied only to public offices. 
Where the ofhce is private, some proof 
must be ottered of its existence, and of 
the appointment of the agent or incum- 
bent. Short 7-. Lee, 1 Jac. & W. 4G4, 468. 
[ Where a note was indorsed by a person 
as president of an incorporated insurance 
company, the indorsee may prove by parol 
that he "acted as president, and need not 
produce the records of the company to 
show his election. Cabot v. Given, 45 
Maine, 144.J 

1 Sebree v. Dorr, 9 Wheat. 558, 563 ; 
Hart r. Yunt, 1 Watts, 253. 

- Cuthush V. Gilbert, 4 S. & R. 555; 
United States r. (iilbert, 2 Sumn. 19, 80, 
81 ; Phil. & Am. on Evid. 440, 441 ; 1 Phil. 
Evid. 421. Whether the law recoonizes 
any degrees in the various kinds of sec- 
ondary evidence, and requires the party 
offering that which is deemed less certain 



and satisfactory first to show that nothing 
better is in his power, is a question wliich 
is not yet perfectly settled. On the one 
hand, the affirmative is urged as an equi- 
table extension of the principle which 
postpones all secondary evidence, until the 
absence of the primary is accounted for ; 
and it is said that the same reason which 
requires the production of a writing, if 
within the jiower of a party, also requires 
that, if the writing is lost, its contents 
shall be jiroved b\- a copy, if in existence, 
rarher tlian by tlie memory of a witness 
who has read it ; and that the secondary 
proof of a lost deed ought to be marshalled 
into, first, the counterpart ; secondly, a 
copy ; thirdly, the abstract. &.e. ; and. last 
of all, the MK-morv of a witness. Ludlam, 
ex dim. Hunt. Loffi, R. 362. On the other 
hand, it is said that this argument for the 
extension of the rule confounds all dis- 
tinction between the weight of evidence 
and its legal admissibility ; that the rule 
is foimded upon the natm'e of the evidence 



100 



LAW OF EVIDENCE. 



[part U. 



S 85. The ca^cs which most frc(iucntly call for the application 
<.,f'i;}ie rule now' liikder con^^idcration, arc those which relate to the 



offerprt, liul not upon it* vtr^!iijj:tli or weuk- 
iic'ss ; .111(1 that, tu carry if to tliu len^nli of 
establishintc iljL-Jirn(.'s in scc(.Mid.i,ry evidence, 
as tixeil rules ot' law, woil'd Olteii tend to 
liie siubversioii >nf. justice,, and; always l)e 
]iroductive of inL-onyt-nien'.'t'. If, for ex- 
ample, proof of theVxisteiice -j^'an abstract 
of a deed will exclude oral evidence of its 
contents, this proof may be withheld by 
the adverse party until the moment of 
trial, and tiie other side be defeated, or the 
cause be ^n-eatly delayed ; and the same 
mischief may be repeated, thnjugh all the 
ditterent ile.ijrees of the evidence. It is 
tlierefore insisted, that the rule of exclu- 
sion ouj,dU to be restricted to such evi- 
dence only, as, ujjon its face, discloses the 
existence'of better proof; and that, Avliere 
the evidence is not of this nature, it is to 
be received, notwithstanding it may be 
shown from other sources that the party 
might have offered that wliich was more 
satisfactory ; leaving the weight of the evi- 
dence to be judged of by the jury, under 
iUI the circuinstances of the case. See i 
Monthly Law ^Mag. -JGo-'iTg. Among the 
cases cited in support of the affirmaliye 
side of the question, there is no one in 
which this particular point appears to have 
been expressly adjudgeil, though in seve- 
ral of them, a's in" Sir E. Seymour's case, 
10 Mod. S ; Villiers ( . Villiers, 2 Atk. 71 ; 
liowlandson v. Wainwright, 1 IS'ev. & Per. 
8; and others, it has been passingly ad- 
verted to as a familiar doctrine of the law. 
• On the other hand, the existence of any 
degrees in secondary evidence was doubted 
bv Patterson, J., in Uowlandson r. Wain- 
Avright; tacitly denied by the same judge, 
in Coyle v. Cole, 6 C. & P. 359, and by 
Parke, J., in Rex v. Fursey, C. & P. 81 ; 
and by the court, in Hex v. Hunt et nl. 3 
B. & Aid. 50(j ; and expressly denied by 
Parke, J., in Brown v. AVoodinan, B C. & 
P. 'Mi. See also Hall v. Ball, 3 Scott, N. 
IL 577. And in the more recent case of 
Doe d. Gilbert i-. Koss, in the Exchequer, 
where proper notice to produce an original 
document had been given witliout success, 
'it was hrhi that the ])arty giving the notice 
was not afterwards restricted as to the na- 
ture of the secondary evidence he would 
])roduce of the contents of the document ; 
an<l, therefore, having offered an attesteil 
copy of the deed in that case, which was 
inadmissible hi itself for want of a stamp, 
it was hild, that it was competent for liim 
to abandon that mode of j)roof, and to 
resort to [)arol testimony, there being no 
degrees in secondary evidence ; for when 
once the original is accounted for, any .■>ec- 



ondary evidence whatever may be resorted 
to by the party seeking to use the same. 
See Doe v. l{()ss, 8 Dowl. 38'.t ; 7 M. & W. 
\{V1, s. c. ; Doe r. Jack, 1 Allen, 4715, 483." 
The American doctrine, as deduced trom 
various authorities, seems to be this ; that 
if, from the nature of the case itself, it is 
luanifest that a more satisfactory kind of 
secondary evidence exists, the party will 
be required to jiroduce it; but that, where 
the nature of the case does not of itself 
disclose the existence of such better evi- 
dence, the objector must not only prove its 
existence, but also must prove that it was 
known to the other party in season to 
have been produced at the trial. Thus, 
wliere the record of a conviction was de- 
stroyed, oral proof of its existence was 
rejectecl, because the law required a tran- 
script to be sent to the Court of Exche- 
quer wliich was better evidence. Hilts v. 
Colvin, 14 Johns. 182. So, a grant of let- 
ters of administration was j)resumed afler 
proof, from the records of various courts, 
of the administrator's recognition there, 
and his acts in that capacity. Battles v. 
Holley, 6 Greenl. 145. And where the 
record books were burnt and mutilated, or 
lost, the clerk's docket and the journals of 
the judges have been deemed the next 
best evidence of the contents of the rec- 
ord. Cook V. Wood, 1 McCord, 139; 
Lyons v. Gregory, 3 Hen. & IMunf. 237 ; 
Lowrv ?■. Cady, 4 "Vermont, 504 ; Doe r. 
Greenlee, 3 Hawks, 281. In all these and 
the like cases, the nature of the fact to be 
proved plainly discloses the existence of 
some evidence in writing, of an official 
character, more satisfactory than more 
oral proof; and therefore the i)roduction 
of such evidence is demanded. Such, 
also, is the view taken by Ch. B. Gilbert. 
See Gilb. Evid. by Loftl, p. 5. See also 
Collins v. Maule, 8 C. & P. 502 ; Evering- 
ham I'. Koundell, 2 M. & Bob. 138 ; Har- 
vey V. Thomas, 10 "VVatts, 03. But where 
there is no ground for legal presumption 
that better secondary evidence exists, any- 
proof is ri'ceived, which is not inadmissi- 
ble by other rules of law ; unless the ob- 
jectiiig i>arty can show that better evidence 
was ])reviously known to the other, and 
' might have been produced ; thus subject- 
ing him, by positive proof, to the same 
imputation of fraud which the law itself 
])resumes, when primary evidence is with- 
held. Thus, where a notarial copy was 
called for, as the best evidence of the con- 
tents of a lost note, the court held, that it 
was sufficient for the party to prove the 
note by the best evidence actually in his 



CHAP. IV.] 



THE BEST EVIDENCE. 



101 



suhstitution of oral for toritten evidence; and tlicy may be arranged 

into three classes : including in the first class those instruments 

K^'**i^?^h the law requires should be in writing; — in the second, 

{^* ^los^contracts which the parties have put in writing ; — and in 

' i ^^e*y^-d, all other writings, the existence of which is disputed, 

\ and gr nch are material to the issue 



€tl 




* In the first place, oral evidence cannot be substitutet 
any^«(^rro?rfnrw'^cT7^7a?y"re^?/iVes to be in writing ; such as 
'*^co|(ip, piiblic documents, official examinatioiiSj deedj^ of _QoiivQ^- 
f lands, wills, other than nuncupative, promises to pay the 
of another, and other writings mentioned in the Statute of 
rauds. In all these cases, the law having required that the 
evidence of the transaction should be in writing, no other proof 
can be substituted for that, as long as the writing exists, and is 



power ; and that to require a notarial copj% 
would be to deiuand that of the existence 
of which there was no evidence, and which 
the law would not ^jresume was in the 
power of the party, it not being necessary 
that a promissory note sliould be protested. 
Eenner v. the Bank of Columbia, 9 Wheat. 
682, 587 ; Denn v. McAlUster, 2 Halst. 
46, 53 ; United States l-. Britton, 2 ilason, 
464, 468. But where it was proved that a 
copy existed of a note, he was held bound 
to prove it by the copy. 2 IMason, 468. 
But if the party has voluntarily destroyed 
the instrument, he is not allowed to prove 
its contents by secondary evidence, until 
he has repelled every inference of a frau- 
dulent design in its destruction. Blade v. 
Noland, 12 Wend. 173. So, where the 
subscribing witness to a deed is dead, and 
his handwriting cannot be proved, the next 
best evidence is proof of the handwriting 
of the grantor, and this is therefore re- 
quired. Clark r. Courtney, 5 Peters. 319. 
But in X(w Yi'i/c, proof of the handwrit- 
ing of the witness himself is next de- 
manded. Jackson r. Waldron. 13 Wend. 
178. See infra, § 575. But where a deed 
was lost, the party claiming under it was 
not held bound to call the subscribing wit- 
nesses, unless it could be shown that he 
previously knew who they were. Jack- 
son V. Vail, 7 Wend. 125. So it was ruled 
by Lord Ivenyon, in Keeling v. Ball, 
Peake's Evid. Ai)p. Ixxviii. In (Jillics i: 
Smither, 2 Stark R. 528, this point docs 
not seem to have been considered ; but the 
case turned on the state of the pleadings, 
and the want of any proof whatever, that 
the bond in question was ever executed 
by the intestate. (* This rule of evi- 
dence does not require proof of the loss of 



the primary evidence beyond possibility of 
mistake; but only to a moral certainty. Mr. 
Justice Campbell in United States v. Sut- 
ter, 21 How. U. S. 170, 175. The idea is 
suggested in a case in New York, Hub- 
bard V. Russell, 24 Barb. 404, that two let- 
ters written at the same time to the same 
person, one being the exact counterpart of 
the other, may both be regarded as origi- 
nals ; and where one is sent, and the other 
retahied, that the latter may be given in 
evidence witJiout notice to ijroduce the 
other. That might be true if the fact to 
be proved were merely the writing of the 
letters. But where, as is commonly the 
case, the point to be reached is the send- 
ing or receipt of the letter to or by another, 
a letter not sent could only be used as a 
copy. And if the letter sent was in fact- 
a copy of that retained it would, by the 
fact of being used for tliat purpose, become 
the original. We attemjited to illustrate 
this point in Durkee r. Vermont Central 
Railway, 29 Vt. Rep. 127, witli reference 
to contracts created by telegraphic corre- 
spondence. It is there held, that where a 
telegraphic communication is relied on to 
estabhsh a contract, it must be proved as 
other writings are, by the production of 
the origimil.'' If that is lost, it may be 
proved by a copy if there is one, and if 
there is not, by oral testimony respecting 
it. The original, wiiere the person to 
whom it is sent takes the risk of its trans- 
mission, or is the employer of the tele- 
graph, is tlie message delivered to the 
operator. But where the person sending 
the message takes the initiative, so that 
the telegraph is to be regarded as his 
agent, the original is the message actually 
dehvered at the end of the Une.] 



9* 




102 LAW OF EVIDENCE. [PART II. 

in the powor of the party. And where oaths are required to be 

taken in open eourt, where a record of the oath is made, or before 

a particular officer, whose duty it is* to certify it ; or whei-e an 

appointment to an additional office is required to be made and 

certified on the back of the party's former connnission ; the written 

evidence must be produced.^ Even the admission of the fact, by 

II i)arty, unless solemnly made, as a substitute for other proof,^ 

dues not supersede direct proof of matter of record by which it 

is sought to affect him ; for the record, being produced, may be 

found irregular and void, and the party might be mistaken.^ 

> Where, however, the record or document appointed by law is not ■ 

i part of the fact to be proved, but is merely a collateral or subse- 

^ (pient memorial of the fact, such as the registry of marriages and 

; births, and the like, it has not this exclusive character, but any 

• other legal proof is admitted.^ 

§ 87. In the second place, oral proof cannot T'3e__substituted Jor_ 
the tvritten evidence of aiiij contract ivhich the jjarties have 2n(:tJjL. 
writiiici. Here, the written instrument may be regarded, in some 
measure, as the ultimate fact to be proved, especially in the cases 
of negotiable securities ; and in all cases of written contracts, the 
writing is tacitly agreed upon, by the parties themselves, as the 
only repository and the appropriate evidence of their agreement. 
The written_contract is not collateral, but is of the very essence 
^ tiie tr ansaction.-^ If, for example, an action is brought for use 

1 Kex V. Iluhe, Peake's Cas. 132 ; Bas- r.Wyant, 3 H. & McII. 393 ; 2 Stark. Evid. 
sett V. Marsliall, it Mass. 312; Tripp v. 571; Ixcx f. Allison, R. & R. lO'J ; Read 
Garey, 7 Greonl. 2f)(; ; 2 8tark. Evid. 570, v. Passer, Peake's Cas. 231. [So, where 
571; Dole v. Allen, 4 Greenl. 527. [In a grantee at the time of receiving a deed 
an action against the selectmen of a town of land, agreed by parol that the grantor 
for refusing to receive the vote of the might continue to exercise a right qt' way 
plaintiff, an inhabitant of the town, parol over the laud, the evidence was held ad- 
evidence that the i)laintlff's name was on missible, not because a right of way can 
the voting list used at the election is inad- be created by a parol gi-ant, liut to show 
missible without first givLng notice to pro- that the grantor's subsequent jxissession ot 
(luce the list, such list being an otMcial such easement commenced under a clann 
document. Harris v. Wlutcomb, 4 Gray, of right. ' Ashley v. Ashley, 4 Gray, lU'J.] 
433.] [* There will be recognized no "" The principles on which a writing is 
degrees in the same class of secondary deemed \y,\vi of the essence of any trans- 
ovrdence. Carpenter v. Dame, 10 Ind. action, and conscciuently the best or pri- 
125. Uut see Harvey r. Thorpe, 28 Ala. iiiaiy proof of it, are thus exiilained by 
250.1 Domat : " The force of written jtroof con- 
s' See sitimi, § 27 ; infra, §§ 169, 170, sists in this ; men agree to preserve by 
186, 204, 205. writing the remembrance of past events, 
^ Scott V. Clare, 3 Cami)b. 236 ; .Tenner of which they wish to create a memorial, 
V. JoUifle, 6 Johns. 9 ; Welland Canal Co. eitiier with a view of laying down a rule 
V. Hathawav, 8 Wend. 480 ; 1 Leach, Cr. for their own guidance, or in order to have, 
C. 349 ; 2 Id. 625, 635. in the instrument, a lasting proof of the 
•* Commonwealth v. Norcross, 9 Mass. truth of what is written. Thus conlxacts 
492; Ellis t'. Ellis, 11 Mass. 92; Owings are written, in order to preserve theme- 



CHAP. IV.] 



THE BEST EVIDENCE. 



103 



and occupation of real estate, and it appears by the plaintiff's 
own showing- tliat there was a written contract of tenancy, he 
must produce it, or account for its absence ; though, if he were to 
make out a prhnd facie case, without any ai)})earance of a written 
contract, the burden of producing it, or at least of proving its 
existence, would be devolved on the defendant.^ But if the fact 
of the occupation of land is alone in issue without respect to the 
terms of the tenancy, this fact may be proved by any competent 
oral testimony, such as payment of rent, or declarations of the 
tenant, notwithstanding it appears that the occupancy was under 
.an agreement in writing; for here the writing is only collateral 
to the fact in question. ^ The same rule applies to every other 
species of written contract. Thus, where in a suit for the price 
of labor performed, it appears that the work was commenced 
under an agreement in writing, the agreement must be produced ; 
and even if the claim be for extra work, the plaintiff must still 
produce the written agreement ; for it may furnish evidence, not 
only that the work was over and beyond the original contract, but 
also of the rate at which it was to be paid for. So, in an indict- 
ment for feloniously setting fire to a house, to defraud the in- 
surers, the policy itself is the appropriate evidence of the fact of 
insurance, and must b9 produced.^ And the recorded resolution 
of a charitable society, under which the plaintiff earned the 
salary sued for, was on the same principle held indispensably 
necessary to be produced.* The fact, that in such cases the writ- 
ing is in the possession of the adverse party, does not change its 
character ; it is still the primary evidence of the contract ; and 
its absence must be accounted for, by notice to the other party to 



morial of what tlie contracting parties have 
prescribed for each other to do, and to 
make for themselves a tixed and immuta- 
ble law, as to what has been agreed on. 
So, testaments are written, in order to pre- 
serve the remembrance of what the party, 
who has a rigiit to dispose of liis jiroperty, 
lias ordained concerning it, and thereby 
lay down a rule for the guidance of his 
heirs and legatees. On the same principle 
are reduced into writing all sentences, 
judgments, eilicts, ordonnances, and other 
matters, which either confer title, or have 
the force of law. The writing jireserves, 
unchanged, the matters intrusted to it, 
and expresses the intention of the parties 
by their own testimony. The trutli of 
written acts is established by the acts 



themselves, that is, by the insjicction of 
tlie originals." See Domat's Civil Law, 
Liv. 3, tit. tJ, § 2, as translated in 7 Month- 
ly Law Mag. p. 73. 

1 Brewer v. Palmer, 3 Esp. 213 ; con- 
firmed in Kamsbottom /•. Tunbridge, 2 M. 

6 S. -IIU ; Hex v. Kawden, 8 B. &"C. 708 ; 
Strother c. Barr, ■> Binu'. loG, per Parke, J. 
[* Magnay v. Knight, I M. & Gr. 944.] 

- Bex IK Inhabitants of Holy Trinity, 

7 B. & C. Oil; Doe r. Harvey, 8 Bing. 
23'J, 241 ; Spiers v. AVillison, 4 Cranch, 
398; Dennet v. Crocker, 8 Grecnl. 239, 
244. 

8 Bex V. Doran, 1 Esp. 127 ; Eex v. 
Gilson, Buss. & By. 138. 

* Whitford r. tutin tt al. 10 Bing. 395 j 
Molton r. Harris, 2 Esp. u40. 



104 LAW OF EVIDENCE. [PART II. 

produce it, or in some other legal mode, before secondary evidence 
of its contents can be received.^ 

§ 88. In the third place^ oral evidence ca nnot be substituted 
for any writhif/, the existence of ivhich is disp uted, and which is 
material either to TJie~issue Ijetioem the parties, or to the credit o^ 
witnesses^px^ isjaot merely t he mem orandum of^soine^ 9^f>^ ^^^K 
For, l)y applying the rule to such cases, the court acquires a 
knowledge of the whole contents of the instrument, wliich may 
have a different effect from the statement of a part.^ " I have 
always," said Lord Tenterden, " acted most strictly on the rule, 
that what is in writing shall only be proved by the writing itself. 
My experience has taught me the extreme danger of relying on 
the recollection of witnesses, however honest, as to the contents of 
written instruments ; they may be so easily mistaken, that I thmk 
the purj)oscs of justice require the strict enforcement of the rule." ^ 
"TIius, it is not allowed, on cross-examination, in the statement 
of a question to a witness, to represent the contents of a letter, 
and to ask the witness whether he wrote a letter to any person 
with such contents, or contents to the like effect ; without having 
first shown the letter to the witness, and having asked him whether 
he wrote that letter, because, if it were otherwise, the cross- 
examining counsel might put the court in possession of only a 
part of the contents of a paper, when a knowledge of the whole 
was essential to a right judgment in the cause. If the witness 
acknowledges the writing of the letter, yet he cannot be questioned 
as to its contents, but the letter itself must be read.* And if 
a witness being examined in a foreign country, upon interrogato- 
ries sent out with a commission for that purpose, should in one 
of his answers state the contents of a letter which is not produced ; 
that part of the deposition will be suppressed, notwithstanding, 
he Ijcuig out of the jurisdiction, there may be no means of com- 
pelling him to produce the letter.^ 

§ 80. In cases, however, where the written communication or 
agreement between the parties is collateral to tlie question in issue, 

1 See further, Rex v. Rawrlen, 8 B. & ^ po held by all the judpres in tho 

C. 70^ ; Sehree i'. Dorr, 9 Wiicat. Tv^S ; Queen's ease, 2 Brod. & Blng. 287. See 

Bullock V. Koon, U Cowen, 30; Mather ?-. also Thil. & Am. on Evid. 441 ; 1 Phil. 

Cioddard, 7 Conn. 304 ; Rank v. Sliewey,' Evid. 422. 

4 Watts, 218 ; Northrup v. Jackson, 13 '^ Vincent v. Cole, 1 M. & M. 258. 

Wend. 8G ; Vinal r. Burrill, 10 Tick. 401, * Tlie Queen's case, 2 B. & B. 287 ; in- 

407, 408: Lanauze v. Palmer, 1 M. & M. fra, § 4G3. 

31. 6 Steinkeller r Newton, 9 C. & P. 313. 



CHAP. IV.] THE BEST EVIDENCE. 105 

it need not be produced ; as, where the writhig is a mere proposal, 
which has not been acted upon ; ^ or, where a written memorandum \ 
was made of the terms of the contract, which was read in the ' 
presence of the parties, hut never signed, or proposed to be |n 
signed ; ^ or, where, during an employment under a written con- <. 
tract, a separate verbal order is given ; ^ or, w here the action is ^1 
not directly upon the agreement, for non-performance of it, but 
is in tort, for the conversion or detention of the document itself ; * 
or, where the action is for the plaintiff's share of money had and 
received by the defendant, under a written security for a debt due 
to them botli.^ 

§ 90, But where the writing does not fall within either of the 
tlu-ee classes already described, there is no ground for its exclud- 
ing oral evidence. As, for example, if a written communication 
be accompanied by a verbal one, to the same effect, the latter may 
be received as independent evidence, though not to prove the 
contents of the writing, nor as a substitute for it. Thus, also, 
the payment of money may be proved by oral testimony, though 
a "receipt be taken ;^ in trover, a verbal demand of the goods is 
admissible, though a demand in writing was made at the same 
time ; "' the admission of indebtment is provable by oral testimony, 
though a written promise to pay was simultaneously given, if the 
paper be inadmissible for want of a stamp.^ Such, also, is the 
case of the examination and confession of a prisoner, taken down 
in writing by the magistrate, but not signed and certified pursuant 
to the statutes.^ And any writing inadmissible for the want of 
a stamp ^ or other irregularity, may still be used by the witness 
who wrote it, or was present at the time, as a memorandum to 



1 Ingram v. Lea, 2 Campb. 521 ; Kams- er v. "\^''elsh, 17 ]\Iass. 165; McFadden v. 
bottom^'. Tunbridge, 2 M. & S. 484 ; Ste- Kingsbuiy, 11 Wend. 067 ; Soutliwick v. 
phens V. IMnney, 8 Taiuit. 327 ; Doe v. Stepliens, 10 Jolins. 443. [Where a writ- 
Cartwriglit, 3 B. & A. 326 ; Wilson v. ing does not purport to contain the entire 
Bowie, 1 C. & P. 8 ; Hawkins v. Warre, 3 contract between parties, additional terms 
B. & C. 6',)0. may be shown by parol. Webster v. 

2 Truwhitt v. Lambert, 10 Ad. & El. Ilodgkins, 5 Foster (N. H.), 128.] 

470. " Kambert v. Cowen, 3 Esp. 213 ; Ja- 

3 Reid V. Battie, M. & M. 413. cob v. Lindsay, 1 East, 460; Doe v. Cart- 
* Jolley r. Taylor, 1 Campb. 143 ; Scott wrigbt, 3 B. & A. 326. 

V. Jones 8 Taunt. 865 ; How r. Hall, 14 ' Smith v. Young, 4 Campb. 439. 

East, 274 ; Bucher v. Jarratt, 3 B. & P. ^ Singleton c. Barrett, 2 Cr. & Jer. 368. 

143; Whitehead v. Scott, 1 i\I. & Bob. 2;' ^ Lambe's ca.«e, 2 Leach, 625; Kex v. 

Ross V. Bruce, 1 Day, 100 ; The People v. Chappel, 1 iM. & Kob. 395, 396, n. ; 2 Phil. 

Holbrook, 13 Johns.90 ; McLean v. Hei't- Evid. 81, 82; Roscoe's Crim. Evid. 46, 

zog, 6 S. & R. 154. 47. 
5 Bayue v. Stone, 4 Esp. 13. See Tuck- 



106 LAW OF EVIDENCE. [PART II. 

refresh his ovrn memory, from -which alone he is supposed to tes- 
tify, independently of the written paj)er.^ In like manner, in 
prosecutions for political offences, such as treason, conspiracy, and 
sedition, the inscription on flags and banners paraded in public, 
and the contents of resolutions read at a public meeting, may he 
})roved as of the nature of speeches, by oral testimony ; - and in 
the case of jjrm^etZ papers, all the impressions are regarded as 
originals, and are evidence against the person who adopts the 
printing by taking away copies.^ 

§ 91. The rule rejecting secondary evidence is sulyect to some 
exceptioyis ; grounded either on public convenience, or on the 
nature of the facts to be proved. Thus, the contents of any 
record of a judicial court, and of entries in any other picblic books 
or registers, may be proved by an examined copy. This exception 
extends to all records and entries of a public nature, in books 
required by law to be kept ; and is admitted because of the incon- 
venience to tlie public which the removal of such documents 
might occasion, especially if they were wanted in two places at 
the same time ; and also, because of the public character of the 
facts tlicy contain, and the consequent facility of detection of any 
fraud or error in the copy.* 

§ 1)2. For the same reasons, and from the strong presumption 
arising from the undisturl)cd exercise of a public office, that the 
appointment to it is valid, it is not, in general, necessary to prove 
the written appointments of public officers. All who are proved to 
have acted as such are presumed to have been duly appointed 
to the office, until the contrary appears;^ and it is not material 
how the question arises, whether in a civil or criminal case, nor 

■ 1 Diilison V. Stark, 4 Esp. 103 ; Jacob 1 M. & Roh. 189. [A rejj;istry copy of 

r. Lindsay, 1 East, 4(')0 ; Mau,<;ha7n »;. Hub- a deed of land is not admissible in evi- 

bard, 8 B. & C. 14; liex v. Tarrant, G C. dence against tlie grantee, without notice 

& P. 1H2; Hex v. Pressly, Id. 183 ; Lay- to liiiu to i)roduce the orijiiual, the original 

er's case, Iti Howell's St. Tr. 223; infra, being pri'suniud to be in bis jxjssession. 

§§ 228, 43G. Coninionwealth v. Emery, 2 (iray, 80. 

'■^ Kex V. Hunt, 3 B. & A. 56G ; Slieri- Where the originals are not jjresunied to 

dan & Kirwan's case, 31 Howell's St. Tr. be in the possession of either party to the 

672. suit, olKce copies of deeds are admissible. 

3 Rex V. Watson, 2 Stark. R. 129, 130. Blaiichard o. Young, 11 Cush. 345. See 

* Bull. N. P. 22fi ; 1 Stark. Evid. 189, also J'alnier v. Stevens, lb. 147-] 

191. But this ex(!eption does not exteinl '" An olticer Jr; /«c/o is one wlio exerci- 

to an answer in chancery, where the party ses an otHce under color of right, by vir- 

is indicted for perjurj' therein ; for there tue of some aj)pointment or election, or of 

the original must be ]iro(hiced, in order to such acquiescence of the public as will 

identify the l>arty, by ]iroof of his hand- authorize tlie ])resum])tion, at least, of a 

writing, 'i'he same reason aiijjlics to de- colorable ai)iioiiitUR-nt or election; being 

positions and allidavits. Rex v. Howard, distinguished, on the one baud, fiom a 



CHAP. IV.] 



THE BEST EVIDENCE. 



107 



wlicthcr the officer is or is not a party to tlic record ; ^ unless, 
being plaintilT, he unnecessarily avers his title to the office, or the 
mode of his aj)j)(jintinent ; in which case, as has been already 
shown, tlie proof must support the entire allegation.^ These and 
similar exceptions arc also admitted, as not being within the 
r eason of the rule, which calls for primary evidence, namely ^f the 
presumption of fraud , arising from its non-production. 

§ 93. A further relaxation of the rule has been admitted, where 
the evidence is the result of volumi7ious facts, or of the inspection 
oi many hooks and papers, the examination of which could not con- 
veniently take place in court.^ Thus, if there be one invariable 
mode in which bills of exchange have been drawn between partic- 
ular parties, this may be proved by the testimony of a witness 
conversant with their habit of business, and speaking generally of 
the fact, without producing the bills. But if the mode of dealing 
has not been uniform, the case does not fall within this exception, 
but is governed by the rule requiring the production of the writ- 
ings.* So, also, a witness who has inspected the accounts of the 
parties, though he may not give evidence of their particular con- 
tents, may be allowed to speak to the general balance, without 



mere usurper of office, and on the other 
from an otficer de jure. Wilcox v. Smith, 
5 Wend. 2ol ; Plymouth v. Painter, 17 
Conn. 585; Burke";-. Elliott, 4 Ired. 355. 
Proof that a person is reported to be and 
has acted as a public ofhcer is prima facie 
evidence, between third persons, of his 
otlicial character. McCoy v. Curtice, 9 
Wend. 17. And to this end evidence is 
admissililc, not only to show that he exer- 
cised the office before or at tlie period in 
question, but also, limited to a reasonable 
time, that he exercised it afterwards. 
Doe V. Younjj, 8 Ad. & El. G3, n. s. And 
see supra, § 83. [Cabot v. Given, 45 
Maine, 44.] 

1 Kex V. Gordon, 2 Leach's C. C. 581 ; 
Berryman v. Wise, 4 T. K. 366; McGa- 
hey V. Alston, 2 I^[ees. & Wels. 206, 211 ; 
Kadford v. Mcintosh, 3 T. K. 632 ; Cross 
I'. Kaye, 6 T. R. 663 ; James v. Brawn, 5 
B. & A. 243; Kex v. Jones, 2 Campb. 
131; Rex v. Verelst, 3 Campb. 432. 
A commissioner appointed to take affi- 
davits is a public otficer, within this cx- 
, ception. Rex v. Howard, 1 M. & Rob. 
187. See supra, § 83; United States v. 
Reyburn, 6 Peters, 352, 367 ; Regina 
V. Newton, 1 Car. & Kir. 369 ; Doe v. 
Barnes, 10 Jur. 520; 8 Ad. & El. 1037, 



N. s. ; Plumer v. Briscoe, 12 Jur. 351 ; 11 
Ad. & El. 46, N. s. ; Doe v. Young, 8 Ad. 
& El. 63, N. s. 

^ Supra, § 56 ; Cannell v. Curtis, 2 
Bing. N. C. 228 ; Moises v. Thornton, 8 T. 
R.303; The People v. Ilopson, 1 Denio, 
574. In an action by the slieriff for his 
poundage, proof that he has acted as sher- 
iti'has been held sulficient ;«■/;//« /arie evi 
dence that he is so, without proof of his 
appointment. Bunbury ?•. ]\latthews, 1 
Car. & Ivir. 380. But in New York it lias 
been held otherwise. The People t: Hop- 
son, S)(/>ra. 

3 Phil. & Am. on Evid. 445; 1 Phil. 
Evid. 433, 434. The rides of pleading 
have, for a similar reason, been made to 
yield to public convenience in the ailmin- 
istration of justice ; and a general allega- 
tion is ordinarily allowed, " when the maf- 
ters to l)e pleaded tend to intiniteness 
and nniltiplicity, whereby the rolls shall 
be encumbered with the length thereof." 
Mints V. Bethil, Cro. Eliz. 749 ; Stephens 
on Pleading, 359, 360. Courts of Equity 
admit the same exception in regard to 
parties to bills, where tliey are numerous, 
on the like grounds of convenience. Story 
on Eq. PI. 94, 95, i-t seq. 

■* bpeucer c. Billing, 3 Campb. 310. 



108 



LAW OF EVIDENCE. 



[part II. 



producing the accounts.^ And where the question is upon the 
solvency of a party at a jiarticuhir time, the general result of an 
examination ot' his books and securities may be stated in like 
manner.^ 

§ 94. Under this head may be mentioned the case of inscriptions 
on walls and fixed tables, mural monuments, gravestones, surveyors' 
marks on boundary trees, <fcc., Avhich, as they cannot conveniently 
be produced in court, may be proved by secondary evidence.^* 

§ 95. Another exception is made, in the examination of a wit- 
ness on the voir dire, and in 'preliminary inquiries of the same 
nature. If, npon such examination, the witness discloses the exis- 
tence of a written instrument affecting his competency, he may 
also be interrogated as to its contents. To a case of this kind, 
the general rule requiring the production of the instrument, or no- 
tice to produce it, does not apply; for the objecting party may 
have been ignorant of its existence, until it was disclosed by the 
witness ; nor could he be supposed to know that such a witness 
would be produced. So, for the like reason, if the witness, on the 
voir dire, admits any other fact going to render him incompetent, 
the effect of which has been subsequently removed l)y a written 
document, or even a record, he may speak to the contents of such 
writing, without producing it ; the rule being that where the ob- 
jection arises on the voir dire, it may be removed on the voir dire^ 
If, however, the witness produces the writing, it must be read, 
beino- the best evidence.^ 



1 ■Roberts r. Doxon, Pcake's Cas. 83. 

Ip.iii li.,! :i- I.J ii irticiilar t'ai'ts umjoaring on 
Ihr liuiik.-, or ia>liicil)]i- riimi the entries. 
Dupuy V. Trnman, '1 Y. & C. 341. 

- Meyer v. Sefton, 2 Stark. K. 274. 
[When hooks and docnments introdnced 
in evidence at the trial are muhifarious, 
and voknninous, and of such a character 
as to render it difficult for the jnry to com- 
l)rehend material facts, without schedules 
containing,' abstracts thereof, it is within 
tl^e discretion of the presidinfx judge to 
admit such schedules, verified by the 
testimony of the person by whom they 
were prepared, allowing the adverse party 
an opportunity to examine them before the 
case is submitted to the jury. Boston & 
AV. K. II. Corp. V. Dana, 1 Gray, 83, 104. 
See also llolbrook v. Jackson, 7 Cush. 
13G.1 

« Doe V. Coyle, 6 C. & P. 3G0 ; Rex v. 
Fursey, Id. 81. But if the}- can conven- 
iently be brought into court, their actual 



production is required. Thus, wliere it 
■was proposed to show the contents of a 
printed notice, hung up in tlie office of the 
party, who was a carrier, parol evidence 
of its contents was rejected, it not being 
affixed to the freehold. Jones v. Tarlton, 
1 D. P. C. (N. s.) 625. 

* Phil. & Am. on Evid. 149 ; 1 Phil. 
Evid. 154, 155 ; Butchers' Co. v. Jones, 1 
Esp. 160; Bothani c. Svvingler, Id. 164; 
Pex V. Gisburn, 15 East, 57; Carlisle v. 
Eadv, 1 C. & P. 284, note ; Miller v. Mar- 
iners' Church, 7 Greenl. 51 ; Sewell v. 
Stubbs, 1 C. & P. 73. 

'" Butler r. Carver, 2 Stark. P. 434. A 
distinction has been taken between cases, 
where the competency apiiears from tlie 
examination of the witness, and thoi^e 
where it is already apparent from tiie rec- 
ord, without his examination ; and it baa 
been held, that the latter case falls within 
the rule, and not within the e.xcei)tion, 
and that the writing which restores tlio 



CHAP. lY.] THE BEST EVIDENCE. 109 

§ 96. It may l)e proper, in this place, to consider the question, 
whether a vrrlxd admission of the contents of a toriting, hy the party? 
himself, will supersede the necessity of giving notice to produce it ;; 
or, in otlier words, whether such admission, being made against; 
the party's own interest, can be used as primary evidence of the 
contents of the writing, against him and those claiming under 
him. Upon this question, there appears some discrepancy in the 
authorities at Kisi Prius.^ But it is to be observed, that there is 
a material difference between proving the execution of an attested 
instrument, when produced, and proving the party's admission,- 
that by a written instrument, which is not produced, a certain act 
was done. In the former case, the law is well settled, as we shall 
hereafter show, that when an attested instrument is* in court, and 
its execution is to be' proved against a hostile party, an admission 
on his part, unless made with a view to the trial of that cause, is 
not sufficient. This rule is founded on reasons peculiar to the 
class of cases to which it is applied. A distinction is also to be 
observed between a confessio juris and a confessio facti. If the 
admission is of the former nature, it falls within the rule already 
considered, and is not received ; ^ for the party may not know the 
legal effect of the instrument, and his admission of its nature and 
effect may be exceedingly erroneous. But where the existence,; 
and not the formal execution, of a writing is the subject of inquiry, 
or where the writing is collateral to the principal facts, and it is 
on these facts that the claim is founded, the better opinion seems 
to be, that the confession of the party, precisely identified, is 
admissible as primary evidence of the facts recited in the writing ; 
though it is less satisfactory tlian the writing itself.^ Very great 
weight ought not to be attached to evidence of Avhat a party has 
been supposed to have said ; as it^ frequently happens, not only 

competency must be produced. See ace. Shepl. 138. [In an action on a written 

Goodhay v. Hendry, 1 M. & M. 319, per contract, which is put in evidence, the 

Best, C. J., and Id." 321, n., i)er Tindall, C. plaintiff cannot introduce the oral declara- 

J. But see Carlisle i\ Eady, 1 C. & P. tions of the det'cndant as to his supposed 

234, per Parke, J.; Wandless v. Caw- liability; since if the declarations varied 

thorne, 1 M. & JM. 321, n., per Parke, J., the terms of the written contract, they 

contra. See 1 Phil. Evid. 154, 155. were not competent testimony ; if tiiey 

1 Phil. & Am. on Evid. 363, ot>4 ; 1 did not, they were inunaterial. Goodell 

Phil. Evid. 34G, 347. See the Monthly v. Smith, U Cush. 592.1 

Law Magazine, vol. 5, p. 17;3-187, wliere ^ Howard v. Smith, 3 Scott, X. R. 574; 

this point is distinctly treated. [*See Smith c. Palmer, 6 Cush. 515; [Slatterie 

Taylor's Evidence, §§ 381-383.] v. Pooley, 6 INlees. & Wels.. 0(34. See m- 

- Supra, § 80 ; Moore v. Hitchcock, 4 fra, § 205.] 
Wend. 262, 208, 2yU ; Paine c. Tucker, 8 



VOL. I. 



10 



110 



LAW OF EVIDENCE. 



[tart II. 



that the witness lias misunderstood what tlic party paid, but that, 
by unintentionally altering a few of the expressions really used, 
he gives an effect to the statement, completely at variance with 
■what the party actually did say,^ U]»()n this distinction the ad- 
judged cases seem chiefly to turn. Thus, where in an action by 
the assignees of a baiikru])1, for iiilViiiLiinL:- a patent-right standing 
in his name, the defendant proposed to prove the oral declaration 
of the bankru{)t, that by certain deeds an interest in the i)atent- 
right had been conveyed by him to a stranger, the evidence was 
properly rejected ; for it involved an opinion of the i)arty upon 
the legal effect of the deeds.^ On the other hand, it has been 
held, that the fact of the tenancy of an estate, or that one person, 
at a certain time, occupied it as the tenant of a certain other 
person, may be proved by oral testimony. But if the terms of 
the contract are in controversy, and they are contained in a writ- 
ing, the instrument itself must be produced.^ 

[ * § 96a. Notwithstanding the decision in Slatterie v. Pooley,^ 
that the admission of a party is always receivable against him, 
although it relate to the contents of a deed, or other written 
instrument, and even though its contents be directly in issue in 
the case, the proposition seems not to have met with universal 
acquiescence. The Irish courts dissent iVoni it.-'* And the New 
York courts adopt a different view.^ And there is no res triction 
to inquiries, upon cross-examination, in regard to jvr itings, and 
facts evidenced b^ writings ; and the rule extends to the party 
who is a witness in support of his own case ; and he may be 
asked, with a view to discredit him, if he did not in a similar suit 
in an inferior court, give evidence before the jury in sup})ort of 



1 Per Parke, J., in Earle ?-. Picken, 5 
C. & P. 5-12, note. See also 1 Stark. Evid. 
So, 30 ; 2 Stark. Evid. 17 ; infra, §§ 200, 
208 ; Ph. & Am. on Evid. 391,392 ;'l Pliil. 
Evid. 372. 

- Hloxani V. Elsee, 1 C. & P. 558 ; Ry. 
& M. 1S7, .s. c. See, to the same point, 
Ke.v i\ IIiil)e, Peake's Cas. 132; Tiiomas 
V, Ansley, tj Esp. 80 ; Scott v. Clare, 3 
Campb. 230 ; Re.K v. Careinion, 8 East, 
77 ; llarri.son v. ^fore, Phil. & Am. on 
Evid. 3155, n. ; 1 Pliil. Evid. 347, n. ; Re.x 
V. Inhabitants of Castle iMorton, 3 13. &A. 
588. 

^ Erewer v. Palmer, 3 Esp. 213 ; Re.x 
r. Inhabitants of llolv Trinity, 7 B. & C. 
611 ; 1 Man. & Ky. 444, s. c. ; Strother v. 



Barr, 5 Bing. 136 ; Pamsbottom v. Tun- 
bridge, 2 M. & S. 434. 

■i [*6 M. & \V. 664. 

5 Lawless r. Queale, 8 Ir. Law, 382; 
Lord (Joslurd r. Ilohh.Id. 217; J'arsons v. 
Pnreell, 12 Id. 90. 

« .fenner i\ JoiifJo, 6 Johns. ; Has- 
brotiek v. Baker, 10 Id. 218 ; Welland Canal 
1-. Hathaway, 8 Wendell, 480. But it was 
decided in a recent ease in New York, Ste- 
phens v. Vroman, 16 N. Y. App. 381, revers- 
ing the judgment of the Supreme Court, 
that it is not competent to give in evidence 
tlie declarations of the opjjosite party, 
that he had heard statements inconsis- 
tent with the testimony of his own wit- 
nesses. Such evidence is none the Icssj 
hearsay because repeated by the party.] | 



CHAP. IV,] THE BEST EVIDENCE. Ill 

his defouce, and whctlior a verdict was not rendered against liim, 
without producing any record in the action.^ And the doctrine of 
Slattcrie v. Pooley is approved in Massachusetts in recent cascs.^] 

§ 97. There is a chiss of cases, which seem to be exceptions to 
this rule, and to favor the doctrine, that oral declarations of a 
party to an instrument, as to its contents or effect, may be shown 
as a substitute for direct proof by the writing itself. Ihit tliesc 
cases stand on a different principle, namely, that where the admis- 
sion iiivohes the material fact in 2>ais, as u'ell as a matter of laiv, the 
latter shall not operate to exclude evidence of the fact from the 
jury. It is merely placed in the same predicam ent w ith mixed 
questions of law and fact, which are always left to_the_ j^ij^i^itkl 
the advice and instructions of the court.^ Thus, where the; plain- 
tiff, in ejectment, had verbally declared that he had " sold the 
lease," under which he claimed title, to a stranger, evidence of 
this declaration was admitted against him.* It involved the fact 
of the making of an instrument called an assignment of the lease, 
and of the delivery of it to the assignee, as well as the legal effect 
of the writing. So, also, similar proof has been received, that the 
party was " possessed of a leasehold,"^ — ^^".held a note,"^ — " had 
dissolved a partnership," — which was created by deed," — and, 
that the iudorscr of a dishonored bill of exchange admitted, that 
it had been " duly protested." ^ What the party has stated in his 
answer in Chancery, is admissible on other grounds, namely, that 
it is a solemn declaration under oath in a judicial proceeding, and 
that the legal effect of the instrument is stated under the advice 
of counsel learned in the law. So, also, where both the existence 
and the legal effect of one deed are recited in another, the solem- 
nity of the act, and the usual aid of counsel, take the case out of 
the reason of the general rule, and justify the admission of such 
recital, as satisfactory evidence of the legal effect of the instrument, 
as well as conclusive proof of its execution.'' There are other cases, 

1 [ * Ilonman i'. Lester, 12 C. B. n. s. "^ T^oe d. AVaithman i'. Miles, 1 Stark. 

77G; s. c. y Jiir. n. s. tiOl. R. 181 ; 4 Campb. 376. 

- Lnomis r. AVadliams, 8 Gray, 557 ; * (;il)J)on8 r. Cofipon, 2 Campb. 188. 

Smith V. Palmer, G Cash. 520.] . Wiiether nn ailmission of tlic eoiinterteit 

* United States i-. Battiste, 2 Siimn. character of a bank-note, which the i)arty 
240. And see Newton v. Belcher, 12 Ad. had passed, is sntficient evidence of the 
& El. 921, N. s. fact, without ])roducin,<>- the note, qnme : 

* Doe d. Lowden r. "Watson, 2 Stark, and See Commonwealth v. Bijielow, 8 
R. 230. INIet. 235. 

6 Digbj V. Steele, 3 Campb. 115. * Ashmore v. Hardy, 7 C. & P. 501 ; 

6 SeweU V. Stubbs, 1 C. & P. 73. Digby i-. Steele, 3 Campb. 115; Burleigh 



112 , LAW OF EVIDENCE. [PART II. 

which may seem, at first view, to constitute exceptions to the 
l)rcsent rule, but in which the declarations of the party were 
admissible, either as contemporaneous with the act done, and ex- 
pounding its character, thus being part of the res gestce ; or, as 
t'stal)lisliing a collateral fiict, independent of the written instru- 
ment. Of this sort was the declaration of a bankrupt, u})on his 
return to his house, that he had been al)scnt in order to avoid a 
writ issued against him ; ^ the oral acknowledgment of a debt, for 
which an unstamped note had been given ; ^ and the oral admis- 
sion of the party, that he was in fact a member of a society created 
by deed, and had done certain acts in that capacity .^ 

V. Stibbs, 5 T. E. 465 ; AVest v. Davis, 7 i Nfewman v. Stretch, 1 M. & M. 338. 
East, 363 ; Paul v. Meek, 2 Y. & J. 116 ; ^ Singleton v. Barrett, 2 C. & J., 368. 

Breton v. Cope, Beake's Cas. 30. [As to ^ Alderson v. Clay, 1 Stark. U. 405 j 

answers in Chancery, see infra, § 260, and Harvey v. Kay, 9 B. & C. 356. 
3 Greeul. Evid. §§ 280, 290 ; as to recitals 
in deeds, see supra, § 23, note.] 



CHAP, v.] HEARSAY. 113 



CHAPTER V. 

OF HEARSAY. 

[*§ 98. Witnesses must testify from knowledge, and not from hearsay. 

99. Hearsay evidence may embrace writings and all matters not within the knowl- 
edge of the witness. 

100. The statements of tliird persons may become the point of inquiry. They are 

then not hearsay. 

101. This rule applies to proof of probable cause, sanity, general repute, &c. 
101a. The subject further illustrated. 

102. The statements of a pai'ty may be shown with reference to mental or bodily 

affections, whether made to physicians or others. 

103. General reputation in the family will support pedigree. 

104. And tliis is competent to prove the time of births, marriages, and deaths. 
104a. Recent English decisions. 

105. So inscriptions on tombstones and other monuments, and engravings on rings, 

and charts, pedigrees, &c., are admissible as original evidence. 

106. The conduct of families is evidence of relationship. 

107. The fivct that persons are recognized as husband and wife is sufficient evidence 

of marriage, in ordinary cases. 

108. The declarations of a party giving character to his acts may be proved as 

part of the transaction. 
^ 108a. So also his correspondence in connection with the transaction. 

109. Declarations affecting claim of title to land made while the party is in posses- 

sion, cojnpetent. 

110. All declarations must be concurrent with the acts to be admissible. 

111. The declarations of co-conspirators in furtherance of the conmion design ad- 

missible against each other. 

112. In copartnersiiips, the acts and declarations of each partner in furtherance of 

the connnou design, bind the firm, 
n. to 112. Review of the cases, as to the admission of one partner, after the disso- 
lution, removing the bar of the statute of limitations. 
— ^- 113. The declarations of an agent, made in the course of his agency, are admissi- 
ble as part of the res (jcshn. 

114. As to any other tacts, within the knowledge of the agent, not connected with 

his agency, he must be called as a witness. 
114a. The e.vtent to wliich public corporate companies are bound by the declara- 
tions of their agents, by whom they alone can act. 

115. Official and professional entries, by persons conusant of the facts, in the 

course of their duty, and where there is no known motive to falsify, and 
made at the date of the transaction, the person being dead, may be received. 

116. Further illustrations of the point. Cases cited. 

117. Private books of account admissible on the same ground. 

10* 



114 LAW OF EVIDENCE. [PART H. 

§118. In tlie American courts the rule is extended to all private entries of the party 
in the ordinary course of his business. 

119. Tiie same rule existed in the Roman Civil Law, and in France and Scotland. 

120. It seems not requisite to the admission of Entries by the party, as part of the 

res fjesUe, that he be dead. 

121. Indorsements of part payment upon securities is evidence of the same char- 

acter. 

122. If made before debt barred, they will prevent the operation of the statute of 

limitations. 

123. Enumeration of the several grounds for admitting the oral declarations of 

persons as substantive evidence. 
12-4. Principal grounds for rejecting hearsay evidence. 

125. The rule applies, although the statement were made upon oath, and be the 

best proof attainable. 

126. Even the declarations of a subscribing witness are not admissible to discredit 

his own attestation.] 

§ 98. TtiE first degree of meral evidence, and that which is most 
satisfactory to the mind, is afforded by our #wn senses ; tMs being 
direct evidence, of the highest nature. Where this cannft be had, | ■) 
as is generally the case iii the proof of facts by oral testimony, the 
law requires the next best evidence, namely, the testimony of those 
who can speak from their own personal knowledge. It is not 
requisite that the witness should have personal knowledge of the 
main fact in controversy ; for this may not be provable by direct 
testimony, but only by inference from other facts shown to exist. 
But it is requisite that, whatever focts the witness may speak to, 
he should be confined to those lying in his own knowledge, whether 
they be things said or""done,'aiid should not testify from"*iirforma- 
tTon given by others, however worthy of credit the^ may be. For 
it is found indispensable, as a test of truth, and to the proper ad- 
ministration of justice, that every living witness should, if possible, 
be subjected to the ordeal of a cross-examination, that it may 
Tappear what were/ his powers of perception^iis opportunities for 
I observation ;ihis attcntiveness in observnig,Mthe strength of his 
{recollectioii,5and his disposition to speak the truth. But testi- 
mony from the relation of third persons, even where the informant 
is known, cannot be subjected to this test ; nor is it often possible 
to ascertain through whom, or how many persons, the narrative 
has been transmitted, from the original witness of the fact. It is 
this whi.ch constitutes that sort of second-hand evidence termed 
^ " hearsay." 

§ 99. The term Iwarsay is used with reference to that which is 1 
written, as well as to that which is spoken ; and, in its legal sense,^ 



CHAP, v.] HEARSAY. 115 

jit denotes that kind of evidence, which docs not derive its vahio 
solely from the credit to be given to the witness himself, but rests 
also, in part, on the veractty and competency of some other per- 
json.i Hearsay evidencc^^^as thus described, is uniforml y heh l 
'incompetent to establish any specific fact, wliich, in its nature, is 
susceptible of being proved bywitnesseSj who canspcak^frwu 
own knoAvledj^. That this species of testimony supposes some- 
thing better, which might be adduced in the particular case, is 
not the sole ground of its exclusion. Its extrinsic weakness, its 
incompetency to satisfy the mind as to the existence of the fact, 
and the frauds which may be practised under its cover, com])ine 
to support the rule, that hearsay evidence is totally inadmissible.^ 
§ 100. Before we proceed any farther in the discussion of this 
branch of evidence, it will be proper to dlKtinguiiOi more clearly 
between hearsay evidence and that which is deemed or-iginal. For 
it does not follow, because the writing or words in question are 
those of a third person, not under oath, that therefore they are 
to be considered as hearsay. On the contrary, it happens in 
many cases, that the very fact in controversy is, whether such 
things were written or spoken, and not whether they were true ; 
and in other cases, such language or statements, whether written . 
or spoken, may be the natural or inseparable concomitants of the 
principal fact in controversy.^ In such cases, it is obvious, that 
the writings or words are not within the meaning of hearsay, but 
are original and independent facts, admissible in proof of the 
issue. 

§ 101. Tlius, where the question is, whether the party acted 
prudently, wisely, or in good faith, the wformation on which he 
acted, whether true or false, is original and material evidence. 
This is often illustrated in actions for malicious prosecution;'* 
and also in cases of agency and of trusts. So, also, letters and 
conversation addressed to a person, whose sanity is the fact in the 
question, being connected in evidence with some act done by him, 
are original evidence to show whether he was insane or not." 

1 1 riiil. Evid. 185 [Sussex Peerage * Taylor v. Willans, 2 B. & Ad. 845. 

case, 11 CI. & Fin. 85, \\'?,\ Stapylton v. So, to reduce the damajic.-s, in an action 

Clou<;li, "12 Kng. Law and Eq. R. 276]. for libel. Coliuan v. Soutliwick, U Johns. 

- I'er Manshall, C. J., in Mima Queen 45. 
V. Hepburn, 7 Cranch, 290, 295. 296 ; Da- ^ Wheeler v. Alderson, 3 Hagg. Eccl. 

Tis V. Wood, 1 Wlieat. 6, 8 ; Hex v. Eris- R. 574, 608 ; Wright v. Tatham, 1 Ad. & 

well, 3 T. K. 707. El. 3, 8; 7 Ad. & El. ;]lo, s. c. : 4 Bing. 

8 Bartlett v. Delprat, 4 Mass. 708 ; Du n. c. 489, s. c. Whether letters addressed 

Bost V. Bereslbrd, 2 Camiib. 511. to the person, whose sanity is in issue, are 



116 



LAW OF EVIDENCE. 



[part II. 



The replies given to inquiries made at the residence of an absent 
witness, or at the dwelling-house of a bankrupt, denying that he 
was at home, are also original evidencS.^ In these, and the like 
I cases, it is not necessary to call the persons to whom the inquiries 
I were addressed, since their testimony could add nothing to the 
j credibility of the fact of the denial, which is the only fact that is 
material. This doctrine aji})li('s to all other communications, 
wherever the fact that such communication was made, and not its 
^.tnith or falsity, is the point in controversy .^ Upon the same 
principle it is considered, that evidence of general reputation, repw- 
ted oiviiership, public rumor, general 7iotorietg, and the like, though 
composed of the speech of third persons not under oath, is origi- 
nal evidence and not hearsay ; the sul>ject of inquiry being the 
concurrence of many voices to the same fact.^ 






admissible evidence to prove liow he vras 
treated by those who knew him, witlioiit 
showing any reply on his part, or any 
other act connected with the letters or 
their contents, was a question much dis- 
cussed in Wright v. Tatham. Their ad- 
missibility was strongly urged as evidence 
of tlie manner in which the i)erson was in 
fact treated by those who knew him ; but 
it was replied, that tiie etlect of the letters, 
alone considered, was only to show what 
were the o/iinions of the writers ; and that 
mere ()])iiii()ns, upon a distinct fact, were 
in general inadmissible; but, whenever ad- 
missible, tiiey must be proved, like other 
facts, by the witness himself imder oath. 
The letters in this case were admitted by 
Gurney, 13., who held the assizes; and 
npon error in the Kxcliecpier Chamber, 
four of tlie learned judges deemeil tiiem 
rightly admitted, and three thouglit otlier- 
wise ; but the i)oint was not decided, a venire 
(If novo being awarded on another gromid. 
See 2 Ad. & El. 3 ; and 7 Ad. & Kl. 329. 
Upon the new trial before the same judge, 
the letters were again received; and for 
this cause, on motion, a new trial was 
granted b}' Lord Denman, C. J., and Lit- 
tledale and Coleridge, Judges. The cause 
was then again tried before Coleridge, J., 
who rejected the letter; and e.\cei)tions 
being taken, a writ of error wa.s again 
bi-ought in the Exchequer Chamber; 
where the six learned judges present, be- 
ing divided equally upon the question, the 
judgment of the King's Bench was af- 
firmed (see 7 Ad. & El.":n;3, 408), and this 
judgment was afterwards affirmed in the 
House of Lords ; see 4 Bing. n. c. 489) ; a 
large majority of the learned judges con- 



to the party were not admissible in evi- 
dence, unless connected, by proof, with 
some act of his own in regard to the let- 
ters themselves, or their contents. 

1 Crosby v. Percy, 1 'J'aunt. 364 ; Mor- 
gan V. Morgan, 9 Jiing. \&,) ; Sumner v. 
.Williams, 5 Mass. 444; I'ellelreau v. 
Jackson, 11 Wend. 110, 123, 124; Key 
V. Shaw, B Bing. 320 ; Phelps v. Foot, 1 
Conn. 387. 

2 Whitehead v. Scott, 1 M. & Rob. 2 ; 
Shott V. Streatlield, LI. 8 ; 1 Ph. Evid. 188. 

"^ Foulkes V. Sell way, 3 lOsp. 23(); Jones 
V. Perry, 2 Esp. 482 ; Ilex v. Watson, 2 
Stark. K. IIG ; Bull. N. P. 2913, 297. And 
see Hard v. Brown, 3 Washb. 87. Evi- 
dence of reputed ownership is seldom ad- 
missible, except in cjises of bankruptcy, 
by virtue of the statute of 21 Jac. 1, c. 19, 
§ 11 ; (iurr v. Kutton, Holt's N. P. Cas. 
327 ; Oliver v. Bartlett, 1 Brod. & Bing. 
2G9. Upon the question, whether a libel- 
lous painting was made to represent a cer- 
tain individual. Lord EUenborough per- 
mitted the declarations of the s])ectators, 
wlule looking at the pictiu'c in the exhibi- 
tion-room, to be given in evidence. Du 
Post *?. Bcresforil, 2 Campb. 512. [The 
fact that 8, debtor was rejjuted insolvent at 
the time of an alleged fraudulent prefer- 
ence of a creditor, is comjietent evidence 
teniling to siiow that his ))reterred creditor 
had reasonable cause to believe him insol- 
vent. Lee r. Kilburn, 3 Gray, 594. And 
the fact that he was in good repute as to 
property may likewise be iiroved, to show 
that such a creditor had not reasonable 
cause to believe him insolvent. Bartlett 
V. Decreet, 4 Gray, 113; Hey wood v. 
Keed, lb. 574. In both cases the testi- 



curring in opinion, that letters addressed mony is admissibfe oiT'tKe groun^^ffiafffie 



CHAP, v.] HEARSAY. 117 

• 

[* § IQla. Under this head, it has been' held that where one 
claimed to have procured a pistol to defend himself against, the 
attack of another, upon the ground of certain information received 
from otlu'rs, such information becomes an original fact, proper to 
be proved or disproved in the case.^ So in an action for fraudu- 
lently representing another woYthy of credit, witnesses conversant 
with the facts of the transaction in question may be allowed to de- 
pose that at the time they also regarded the person trustworthy. 
So it may be shown that such person was at that time generally 
so reputed among tradesmen with wliom he dealt.^] 

§ 102. Wherever the hodili/ or mental feelings of an individual 
are material to be proved, the usual expressions of such feelings, 
made at the time in question, are also original evidence. If they 
were the natural language of the affection, w'hcther of body or 
mind, they furnish satisfactory evidence, and often the only proof 
of its existence.^ And whether thej» were real or feigned is for 
the jury to determine. Thus, in actions for criminal conversation, 
it being material to ascertain upon what terms the Imsl^and and 
wife lived together before the seduction, their language and de- 
portment towards each other, their correspondence together, and 
their conversations and correspondence with third persons, are 
original evidence.* But to guard against the abuse of this fV^ 
it has been held, that before the letters of the wife can be received, 
it must be proved that they were written prior to any misconduct 
on her part, and when there existed no ground for imputing 
collusion.^ If written after an attempt of the defendant to accom- 
plish the crime, the letters are inadmissible.^ Nor are the dates 
of the wife's letters to the husband received as sufllicient evidence 
of the time when they were written, in order to rebut a charge of 
cruelty on his part ; because of the danger of collusion." So, also, 

belief of men, as to matters of whic h the^ exclamations, and expressions as usually 

iTaVenOt personal klio\i?T?n'|e7Ts'reasoniV and naturally accomjiany andturnish evi- 

bly supposed to be affected by tlie opi_ii- deiice of a /./vw/./ existing' pain or malady, 

ions of others who are about them. See Bacon i\ Cliarlton, 7 C'ush. 581, oSO.] 
also Carpenter c. Leonard, 13']VlTen, 32; * Trelawney c. Coleman, 2 Stark. K. 

and Wliitcher ;•. Shuttuck, lb. ol'J.J 191; 1 Barn. & Aid. UO, s. c. ; Wdlis v. 

1 [*reoi)le /•. Sliea, » Cal. 5oS. Barnard, « Binfj. o7G ; Klsani r. Faucett, 

2 Sheen v. Bumpstead, 10 Jur. n. s. 2 Ksp. 5(12: Winter r. Wroot, 1 M. & Kob. 
242; Exch. Cham.; s. c. 2 H. & C. 193.] 404; Gilchrist v. Bale, 8 Watts, ooo ; 

=* [Such evidence, however, is not to be Thompson i: Freeman, Skin. 402. 
extended bevond the necessity on which " Edwards c. Crock, 4 Ksp. 39; Tre- 

the rule is founded. Any thinj,' in the na- lawney c. Coleman, 1 Barn. & Aid. 90; 

ture of narration or statement is to be 1 I'hil. Evid. 190. 

carefully excluded, and the testimony is " Wilton c. Webster, 7 Car. & P. 198. 

to be contiued strictly to such comphdnts, " lloulision v. Smyth, 2 Car. & P. 22; 



118 LAW OF EVIDENCE. [PART II. 

the representation byti side person, of the nature, symptoms, and 
effects of the malady, under which he is laboring at the time, are 
received as original evidence. If made to a medical attendant, 
they are of greater weight as evidence ; b\it, if made to any other 
person, they are not on that account rejected.^ In prosecutions 
for rape, too, where the party injured is a witness, it is material 
-■to show that she made complaint of the injury while it was yet 
recent. Proof of such complaint, therefore, is original evidence ; 
but the statement of details and circumstances is excluded, it 
being no legal proof of their truth.^ 
j § 103. To this head may be referred much of the evidence some- 
; times termed " hearsay," which is admitted in cases of pedigree. 
Tlic priiicii)al question, in these cases, is that of the parentage, 
or descent of the individual ; and in order to ascertain this fact, 
it is material to know how he was acknowledged and treated by 
those who were interested in him, or sustained towards him any 
relations of blood or aflfmity. It was long unsettled, whether 
any and what kind of relation must have subsisted between the 
person speaking and the person whose pedigree was in question ; 
and there are reported cases, in which the declarations of servants, 
and even of neighbors and friends, have been admitted. But it 
is now settled, that the law resorts to hearsay evidence in cases 
of pedigree, upon the ground of the interest of the declarants of 
the person from whom the descent is made out, and their con- 
sequent interest in knowing the connections of the family. The 
rule of admission is, therefore, restricted to the declarations of 
deceased persons, who were related by blood or marriage to the 
person, and, therefore, interested in the succession in question.^ 

Trolawnevr. Coleman, 1 Barn. & Alil. 90. for the plaintiff. Bacon v. Charlton, 7 

[And where in an action a,i,^ainst a hns- Cush. r)8I, 5b6. State y. Howard, 32 Vt. 

hand tor the hoard of hi* wife, the plaintiff 380; Kent v. Lincoln, Ih. 59L] 

had introduced testimony tending to show "^ 1 East, P. C. 444, 445; 1 Hale, P. C. 

a certain state of mind on the part of the G33 ; 1 Russell on Crimes, 565; Hex v. 

witc, her declarations to third jjcrsons on Clarke, 2 Stark. R. 241 ; Langhlin v. The 

tliat subject, expressive of her mental feel- State,- 18 Ohio, 99. In a prosecution for 

i ings, are admissible in tavor of tlie hus- conspiring to assemble a large meeting, 

band. Jacobs c Whitcomb, 10 Cush. 255.] for the purpose of exciting terror in the 

i Aveson ;•'. J^ord Kinnaird, East, comnnmity, the complaints of terror, made 

188; 1 Ph- l'>vid. 191 ; Grey v. Young, 4 by jiersons professing to be alarmed, were 

McCord, 38 ; (iilchrlst v. Bale, 8 Watts, permitted to be proved by a witness, who 

355. [In an action for an injury caused lieard them, without calling the persons 

by a defect in the highway, groans or e.\- themselves. Regina i'. Vincent et al. 9 C. 

clamations uttered by the plaintiff at any & P. 275. See Bacon v. Charlton, 7 Cush. 

time, expressing premit pain or agony, 581. ' 

and referring by word or gesture to the ^ Vowles v. Young, 13 Ves. 140, 147 ; 

seat of the pain, are competent testimony Goodright v. Moss, Cowp. 591, 594, as 



CHAP, v.] 



HEARSAY. 



119 



And (jeneral repute in the famil//, proved ))y the testimony of a 
surviving member of it, has been considered as falling within the 
rule.i 

§ 101. The term pedigree, howe ver, embrac es not only descent 
and relationship, but also the facts of hirtji^ '!l^^^Z''''^iU^'>.^^}}^ }^^Pb 
aiid t lie times_\vheirtlicse"_eventg hap])ened. These facts, there- 
fore, may be proved in the manner above mentioned, in all cases 
where they occur incidentally, and in relation to pedigree. Thus, 
an entry by a deceased parent, or other relative, made in a Bible, 
family missal, or any other book, or in any document or paper, 
stating the fact and date of the birth, marriage, or death of a child, 
or other relative, is regarded as a declaration of such parent or 
relative, in a matter of pedigree.^ So also, the correspondence 



expounded by Lord Eldon, in Wliitelocke 
V. Baker, 13 Ves. 51-t; Johnson v. Law- 
son, 2 Wnvj.. 8G; IMonkton v. Attorney- 
General, o Kuss. & My. 147, 150 ; Crease 
IK Barrett, 1 Cronip. JMees. & Kos. Dl'J, 
928; Casey v. O'Shaunessy, 7 Jur. 1140; 
Gregory v. Baugh 4 Hand. G07 ; Jewell v. 
Jewell, 1 How. s. c. Kep. 231 ; 17 Peters, 
213, s. c. ; Kaywood v. Barnett, 3 Dov. & 
Bat. 91 ; Jackson v. Browner, 18 Johns. 
37 ; Chapman v. Chapman, 2 Conn. 347 ; 
Waldron v. Tuttle, 4 N. Hamp. 371. The 
declarations of a mother, in disparage- 
ment of the legitimacy of her child, have 
been received in a question of succession, 
llargrave o. Ilargrave, 2 C. & K. 701. 
[Mooei-s V. Bunker, U I'oster (N. H.), 420; 
Emerson v. White, lb. 482 ; Kelley i-. Mc- 
Guire, 15 Ask. 555.] 

1 Doe V. Griffin, 15 East, 29. There is 
no valid objection to such evidence, be- 
cause it is hearsay upon hearsay, provided 
all the declarations are within the family. 
Thus, the declarations of a deceased lady, 
as to what had been stated to iier by her 
liusband in his lifetime, were admitted. 
iJoe V. llandall, 2 M. & P. 2U ; Monkton 
V. Attorney-General, 2 Kuss. & My. 105 ; 
Bull. X. P. 295; Elliott v. PiersoU, 1 
Peters, 328, 337. It is for the judge to de- 
cide, whether the declarants were " mem- 
bers of the family so as to render 'their 
evidence admissible ; " and for the jurj- 
to settle the tact to which their declara- 
tions relate. Doe c. Davis, 11 Jur. 007; 
10 Ad. & El. 314, N. s. [See also Copes 
V. Pearce, 7 Gill, 247 ; Clements v. Hunt, 
1 Jones, Law (N. C), 400.] In regard to 
the value and weight to be given to this 
kind of evi^leiice, the following observa- 
tions of Lord Langdalc, M.4^, are entitled 
to great consideratiou. " In cases," said 
he, " where the whole evidence is tradi- 



tionary, when it consists entirely of family 
reputation, or of statements of declarations 
made by persons who died long ago, it 
must be taken with such allowances, and 
also with such suspicions, as ought rea- 
sonably to be attached to it. When fam- 
ily rep.utation, or declarations of kindred 
made in a family, are the subject of evi- 
dence, and the rei)utation is of longstand- 
ing, or the declarations are of old date, the 
memory as to the source of the reputation, 
or as to the persons who made the decla- 
rations, can rai-ely be characterized by per- 
fect accuracy. What is true may become 
blended with, and scarcely distinguish- 
able from something that is erroneous ; 
the detection of error in any part of the 
statement necessarily throws doubt upon 
the whole statement, and yet all that is 
material to the cause may be perfectly 
true ; and if the whole be rejected as tiilse, 
because error in some part is proved, the 
greatest injustice may be done. All tes- 
timony is subject to such errors, and testi- 
mony of this kind is more particularly so ; 
and "however ditKcult it may be to discover 
the truth, in cases where "there can be no 
demonstration, and wliere every conclu- 
sion which may be drawn is subject to 
some doubt or uncertainty, or to some 
opposing i)robal)ilities, the courts are bound 
to adopt tlie conclusion which appears to 
rest on the most solid foundation." See 
Johnson v. Todd, 5 Beav. 599, 000. 

- The Berkley I'eerage case, 4 Cainpb. 
401, 418; Doe v. Bray, 8 B. & C. 813; 
Monkton v. The Attorney-General, 2 Buss. 
& My. 147; Jackson v. Cooley,.8 Johns. 
128, 131, per Tliompsou, J. ; Douglas v. 
Saunderson, 2 Dall. 110 ; The Slane I'eer- 
age case, 5 Clark & Ein. 24 ; Carskadden 
r. Poorman, 10 Watts, 82; The Sussex 
I'eerage case, 11 Clark li. Ein. 85; Wat- 



/ 



120 LAW OF EVIDENCE. [PART II. 

of deceased members of the family, recitals iii family deeds, such 
as marriage settlements, descriptions in wills, and other solemn 
acts, are original evidence in all cases, where the oral declara- 
tions of the parties are admissible.^ In regard to recitals of 
pedigree in bills and answers in Chancery, a distinction has been 
taken between those facts which are not in dispute and those 
which are in controversy ; the former being admitted, and the 
latter excluded.^ Eecitals in deeds, other than family deeds, are 
also admitted, when corroborated by long and peaceable possession 
according to the deed.^ 

[ * § 104a. It seems to be requisite, in regard to the admissibility 
of evidence of reputation to prove a marriage, that the persons 
from whom the information is derived sliould be shown to have 
deceased, or that 'the reputation should be known to the witness 
to have been general among the connections in the family, and that 
there should have been no controversy in regard to it. For after 
the existence of Us ynota it is not competent to give evidence of 
such reputation ; and it will not be allowed to give such evidence 
upon proof that such suit was fraudulently instituted for the pur- 
>j)Ose of excluding the testimony. But the existence of a former 
suit between the same parties will not exclude such reputation, 

son V. Brewster, 1 Barr, 381. And in a tail male, and declared themselves heirs of 

recent case this doctrine lias been thought the bodies of his daughters, who were dev- 

to warrant the admission of declarations, isees in remainder ; and in Slaney v. 

made by a deceased person, as to where Wade, 1 My hie & Craig, 338, the grantor 

his tainilv came from, where he came was a mere trustee of the estate, not rela- 

frora, and of what place his father was ted to the parties. See also Jackson v. 

designated. Shields ;.'. Boucher, 1 DeGex Cooley, 8 Johns. 128 ; Jackson v. Russell, 

& Smale, 40. [* So also the common rep- 4 Wend. .543 ; KeUer v. Nutz, 5 S. & 11. 

utation in tlie family is sufficient evidence 251. If the recital in a will is made after 

of tlie death of a person. Anderson v. the fact recited is in controversy, the will 

Parker, 6 Cal. 197. See also Redfiold is not admissible as evidence of that fact, 

on Wills, Tart 2, § 1. So also in regard The Sussex Peerage case, 11 Clark & Fin. 

to the time of one's death. Morrill v. 85. 

Foster, 33 N. H. 379.] - Phil. & Am. on Evid. 231, 232, and 

1 Bull. N. P. 233 ; Neal v. Wilding, 2 the authorities there cited. Ex parte 

Str. 1151, per Wright, J. ; Doe v. E. of affidavits, made several years before, to 

Pembroke, 11 East, 503; Whltelockc v. prove pedigree by official requirement. 

Baker, 13 Ves. 514 ; Elliott v. Piersoll, 1 and prior to any Us mota, are admissible. 

Pet. 328 ; 1 Pii. Evid. 21G, 217, and Peer- Hurst v. Jones, Wall, Jr. 373, App. 3. 

age cases tliere cited. In two recent cases, As to the effect of a lis mota upon tlie ad- 

the recitals in tlie deeds were held adinis- missibility of declarations and reputation, 

sible only against tlie'parties to the deeds ; see infra, § 131-134. 

but in neither of those cases was the party ^ Stokes v. Daws, 4 Mason, 268. 

proved to have been related to those whose [* Common practice, in regard to one's 

pedigree was recited. In Fort v. ('iarke, name, is not objectionable on the ground 

1 Russ. 601, the grantors recited the death of hearsay. Willis v. Quimby, 11 Foster 

of the sons of John Cormick, tenants in 485.] 



CHAP, v.] HEARSAY. 121 

unless tlic same point were brouglit into controversy, which it is 
now sought to establish.^] 

§ 105. Inscriptions on tombstones, and other funeral monuments, 
engravings on rings, inscriptions on family portraits, charts or 
pedigree, and the like, are also admissible, as original evidence 
of the same facts. Those which are proved to have been made by, 
or under the direction of a deceased relative, are admitted as his 
declarations. But if they have been publicly exhibited, and were 
well known to the family, the publicity of them su})[jlies the defect 
of proof, in not showing that they were declarations of deceased 
members of the family ; and they are admitted on the ground of 
tacit and common assent. It is presumed, that the relatives of the 
family would not permit an inscription without foundation to 
remain ; and that a person would not wear a ring with an error 
on it.^ j\rural and other funeral inscriptions arc provable by 
copies, or other secondary evidence, as has been already shown .^ 
Their value, as evidence, depends much on the authority under 
which they were set up, and the distance of time between their 
erection and the events they commemorate.* 

§ .106. Under this head may be mentioned family co7iduct, such 
as the tacit recognition of relationship, and the disposition and 
devolution of property, as admissible -evidence, from which the 
opinion and belief of the fiimily may be inferred, resting ultimately 
on the same basis as evidence of family tradition. Thus it was 
remarked by Mansfield, C. J.,, in the Berkley Peerage case,^ that, 
" if the father is proved to have brought up tlic party as his 
legitimate son, this amounts to a daily assertion that the son is 
legitimate." And Mr. Justice Ashhurst, in another case, remarked 
that the circumstance of the son's taking tlie name of the person 
with whom his mother, at- the time of his birth, lived in a state 

1 [* Butler r. ilountgarrett, 7 ITo. Lds. bearings, proved to have existed while the 
case, GS3 ; blieddeii v. Patrick, 2 S\v. & heralds had the po.ver to punish usurpa- 
Tr. 170.] tions, possessed an othcial weight and 

2 Per Lord Erskine, in Vowlcs v. credit. Hut tiiis authority is tiiouglit to 
Young, 13 Ves. 144 ; Monkton v. The At- liave ceased with the last heraUl's visita- 
torney-Geueral, '1 Rus. &Mylne, 147 ; Kid- tion, in 1G86. See 1 Phil. Evid. 224. At 
ney v. Cockt)urn, Id. 107. The Canioys present, they amount to no more than 
Peerage, li CI. & Fin. 781). An ancient family declarations. [* See Shrewsbury 
pedigree, purporting to have been col- Peerage, 7 IIo. Lds. Cas. 1.] 

lected from /lisfon/, as well as from other ^ ;6'»/"rt, § ',)4. [See also Eastman v. 

sources, w;is hekl adinissilile, at least to Martin, I'J N. 11. l.y_'.] 

show the rclationshi]) of jiersons described ■• Some remarkal)le mistakes of fact in 

by the framcr as living, and therefore to such inscriptions are mentioned in 1 Phil, 

be presumed as known to him. Davies v. Evitl. 222. 

Lowndes, 7 Scott, N. 11. 141. Armorial '^ 4 Campb. 416. 
VOL. I. 11 



122 LAW OF EVIDENCE. [PART II. 

of adultery, which name he and his descendants ever afterwards 
retained, " was a very strong family recognition of his illegiti- 
macy."^ So, the declarations of a person, since deceased, that 
he was going to visit liis relatives at such a place, have been held 
admissil)le to show that the family had relatives there.^ 

§ 107. It is frequently said, that general reputation is admissible 
to prove tlie fact of the inarr'uKje of the parties alluded to, even in 
ordinary cases, where pedigree is not in question. In one case, 
indeed, such evidence was, after verdict, held sufficient, primd 
facie, to warrant the jury in finding the fact of marriage, the 
adverse party not having cross-examined the witness, nor con- 
troverted the fact by proof.^ But the evidence produced in tlie 
other cases, cited in support of this position cannot properly be 
called hearsay evidence, but was strictly and truly original evi- 
dence of facts, from which the marriage might well be inferred ; 
such as evidence of the parties being received into society as man 
and wife, and being visited by respectable families in the neighbor- 
hood, and of their attending church and public places togetlier as 
such, and otherwise demeaning themselves in public, and address- 
ing each other as persons actually married.* 

§ 108. Tlicre are other declarations, which are admitted as 
original evidence, being distinguished from hearsay by their con- 
nection with the principal flict under investigation. The affairs 
of men consist of a complication of circumstances, so intimately 
interwoven as to be hardly separable from each other. Each owes 
its birth to some preceding circumstances, and, in its turn, be- 
comes the prolific parent of others ; and each, during its existence, 
has its inseparable attributes, and its kindred facts, materially 
affecting its character, and essential to be known, in order to 
a right understanding of its nature. These surrounding circum- 
stances, constituting parts of the res gestce, may always be shown 
to the jury, along witli the principal fact; and their admissibiUty 

1 Goodriglit v. Saul, 4 T. R. 356. » Evans v. Morgan, 2 C. & J. 453. 

2 Kisliton '•. Nesliitt, 2 M. & Rob. 252. * 1 Phil. Evid. 234,235 ; Hervey i-. Her- 
[ * Tiiese (iL-clarations embrace wliat is vey, 2 W. Bl. 877 ; Birt i: Barlow, Doug, 
said bv liushanil or wife, as to the connec- 171,174; Read r. I'asser", 1 Esp. 213; 
lions 'in tiie faniilv of the other, but not Leader r. Barry, Id. 353 ; Doe ('.Fleming, 
those maile by mcmlier.s of the family of 4 Bing. 2m; Smith v. Smith, 1 riiilhm. 
one as to tiie family of the other. And let- 2U4 ; Hammick v. Bronson, 5 Day, 290, 
ters maybe produced to show how the 293; /» ?e Taylor, 9 Paige, 611 [2 (Jreenl. 
wife was addressed by members of her Evid. (7th ed.) § 461-4G2J. 

own family. Shrewsbury Peerage case, 
7 llo. Ld'sCas. l.J 



CHAP, v.] 



HEARSAY. 



123 



is determined by the judge, according to the degree of their 
reUition to that fact, and in the exercise of his sound discretion ; 
it being extremely difficult, if not impossible, to bring this class 
of cases within \\\g limits of a more particular description.^ The 
principal points of attention arc, wlicthcr the. circumstance^, and 
declarations offered in proof were contemporaneous with the main 
fact 'under consideration, and whether they were so connected 
with it as to illustrate its character.^ Thus, in the trial of Lord 



1 Per Park, J., in K.awson v. Haigh, 2 
Bing. 104; Uulley y. Gyde, 9 Biiig. 349, 
352 ; Pool r. Bridges, 4 Picli. 379 ; Allen 
V. Duncan, 11 Pick. 309 [liaynes r. But- 
ter, •24 Pick. 242; Gray v. Cioudrich, 7 
Jolins. 95 ; Bank of Woodstock v. Clark, 
25 Vt. 308; Mitchura v. State, 11 Geo. 
615; Tonikies v. Reynolds, 15 Ala. 109; 
Cornelius v. The State, 7 Eng. 782. 

On the trial of an action brought by a 
jirincipal against an agent wlio ha<l charge 
of certain business of the principal for 
many years, to recover nionej' received 
by the defendant from clandestine sales 
of property of the plaintill" and money of 
the plaintiff fraudulently t^iken by the 
defendant, eviilence that the defendant 
at the time of entering the plaintiti's 
service was insolvent, and that lie had 
since received only a limited salary and 
some small additional comi)ensation, and 
that sub-'^eipient to tlie time of his al- 
leged misdoings, and during the period 
specified in the writ, he was the owner of 
a large property, far exceeding the aggre- 
gate of all his salary and receipts while in 
the plaintiff's service, is admissible as 
having some tendency to prove, if the 
jury are satisfied by other evidence, that 
money had been tiilven from the ])laintiff 
by some one in his employ, that the de- 
fendant is the guilty person ; such facts 
being in nature of res (jeslni acconipan.ving 
the very acts and transactions of the de- 
fendant under investigation, and tending 
to give them character and significance. 
And the declarations of the defendant 
concerning his property and business trans- 
actions, made to third persons, in the ab- 
sence of the plaintiff or his agents, are 
inadmissible to rebut such evidence. Bos- 
ton & W. \i. \\. Corp. c. Dana, 1 Grav, 
m, 101, 103 [*llackett v. King, 8 Allen, 
144]. See also Commonwealth v. Mont- 
gomery, 11 Met. 534. The declaration of 
a person who is wounded and bleeding, 
that the defendant has stabbed her, made 
innnediately after the occurrence, though 
with such an interval of time as to allow 
lier to go up-stairs from her room to an- 
otlier room, is admissible iu evidence af- 



ter her death, as a part of the res fjexfce. 
Commonwealth v. Mcl'ike, 3 Cush. 181.] 

- Declarations, to become i)art of th« 
j-es <iislii>, " must have been made at thej 
time of the act done, which they are sui>-i 
posed to characterize ; and have been well| 
calculated to unfold the nature and quali-j 
ty of the facts they were intended to ex-| 
plain, and so to harmonize with them, asj 
obviously to constitute one transacti(jn."i 
Per llosmer, C. J., in Enos v. Tuttle, 3 
Conn. B. 250. And see In re Taylor, 9 
Paige, 611 ; Carter v. Buchannon, 3 Kel- 
ley, B. 513; Blood v. Bideout, 13 Met. 
237 ; Boyden v. Burke, 14 How. .s. c. 575. 
[* Declarations to l)e admissible must b^ 
contemporaneous with tlie act. Faner v. 
Turner, 1 Clarke (Iowa), 53; and they 
must tend to characterize the act ; Elkins 
V. Hamilton, 20 Vt. Rep. 627 ; but if not 
consistent with the obvious character of 
the act, they will not control it. State v. ^ 
Shellidy, 8 Clarke (Iowa), 477.] But ^ 
declarations explanatory of a previous 
fact, e. </. how the party's hands became 
bloody, are inadmissible. Scraggs v. The 
State, 8 Smed. & Marsh. 722. So, where 
a party, on removing an ancient fence, put 
down a stone in one of the ])ost-lu)les, and 
the next day declared that he i)laced it 
there as a boundary ; it Mas held that this 
declaration, not constituting part of the 
act done, was inadmissible in evidence in 
liis favor. Noyes r. AA'ard, 19 Conn. 250. 
See Corinth r. Lincoln, 34 Maine, 310. 
In an action by a bailor against the bailee, 
for loss by his negligence, the declarations 
of the bailee, contemporaneous with the 
loss, are admissible in liis fiivor, to show \ 
tlie nature of the lo'3^."St(1ry"on Bailm. 
§ 339, cites Tompkins v. Saltmarsh, 14 S. & 
R. 275; Beardslee v. Richardson, 11 Wend. , 
25; Doorman c. Jenkins, 2 Ad. & El. 80. 
So, in a suit for enticing away a servant, 
his declarations at tlie time of leaving his 
master are admissible, as jiart of the as 
qistii\ to show the motive of his departure. 
Hadley v. Carter, 8 ^J. Hamp. 40. [In 
Lund V. Tyngsborough, 9 Cush. 36, which 
was an action for injuries ret-eived through 
a defect in a highway, during the tiial at 



124 



LAW OF EVIDENCE. 



[part II. 



George Gordon for treason, the cry of tlie moli, who accompanied 
the prisoner on his enterprise, was received in evidence, as forming 
part of the 7-es genUe, and showing the cliaracter of the principal 
fact.^ So also, where a person enters into land in order to take 
advantage of a forfeiture, to foreclose a mortgage, to defeat a dis- 
seisin,^ or the like ; or changes his actual residence, or domicile, 
or is upon a journey, or leaves his home, or returns thither, or 
remains abroad, or secretes himself; or, in fine, does any other 
act, material to be understood ; his declarations, made at the time 
of the transaction, and expressive of its character, motive, or 
object, are regarded as " verbal acts, indicating a present purpose 
and intention," and are therefore admitted in proof like any other 
material facts.fj So, upon an inquiry as to the state of mind, 
sentiments, or dispositions of a person at any particular period, 
his declarations and conversations are admissible.'^ They are 
parts of the res gestce.^ 



^^ 



Nisi Priiis, a witness was permitted to say 
in reply to the question, " At the time 
■when he (the doctor wlio died before the 
triid) was called, and while engaged in 
such exauunation, what did he say con- 
cerning such injury, its nature and ex- 
tent '! " that "I heard him say that it was 
a very serious injury — that it was more 
injured than though the bone was broken," 
&c. It did not apjiear how long it was 
after the accident happened when these 
declarations were made. The full bench 
decided that the evidence was wrongly 
admitted, and in giving the opinion of the 
court, rietcher, J., states at some length 
the rules of law applicable to the admissi- 



1 M. & M. 338 ; Ridley v. Gvde, 9 Bing. 
349, 352; Smith v. Cramer, I'Bing. N. c. 
585 ; Gorliarn ik Canton, 6 Greeid. 2G6 ; 
Fellowes v. Wilhamson, 1 M. & J\I. 306; 
Vacher v. Cocks, Id. 353; 1 B. & Ad. 
135; Thorndike v. City of Boston, 1 Met. 
242 ; Carroll v. The State, 3 Humph. 315; 
Kilburn v. Bennet, 3 Met. 199; Salem v. 
Lynn, 13 I\Iet. 544; Porter v. Ferguson, 
4 Flor. I^. 104. 

* Barthelemy v. The People, &c. 2 
Hill,N. Y. 11. 248,257; Wetmore v. Mell,v-i 
1 Ohio, X. s. 2(3 [supra, § 102]. N* 

" [It is only when the thing done is 
equivocal, and it is necessary to render its 
meaniutj clear, and expressive of a motive 






bility of this class of testimony [* which or object, that it is competent to })rove >^ 



the profession will find a valuable sum- 
mary of the law upon the point]. 

1 21 Howell's St. Tr. 542. [In an in- 
dictment for keeping a house of ill fame, 
evidence of conversations iicid hymen im- 
mediately upon coming out of the house, 
and u])on the sidewalk in front thereof, 
but not in presence of the defendant, nor of 
any of tlie inmates, as to what had taken 
place in the house, has been held to be in- 
admissil)le as part of the res (jrstiE and 
tending to show the character of the visi- 
tors in the house. Commonwealth v. liar- 
wood, 4 Gray, 41.] 

2 Co. Litt. 49, b, 24.5, b; Robinson v. 
Swett, 3 Greenl. 316; 3 Bl. Coram. 174, 
175. 

'^ Bateman v. Bailey, 5 T. R. 512, and 
the observations of Mr. Evans upon it in 
2 Poth. Obi. App. No. xvi. § 11 ; Kawson 
V. Haigli, 2 Bing. 99 ; Newman v. Stretch, 



declarations accompanying it, as fallin 
within the class of ns yeskn. Bj- Bigel.ow, 
J., in Nutting f. Page, 4 Gray, 584. Thus 
the reasons stated by the master-work- 
man, wlien building a dam, lor making it 
lower in the middle than at either end, 
are not competent evidence against his 
employer that it was so made; nor are 
the instructions given by the owner of the 
dam while rebuilding it, to mark the 
height of the old dam and to erect the new 
one of the same height. Nutting v. I'age, 
vt supra. See also Carleton i-. Patterson, 9 
Foster (N. H.) 580. The conduct and e.x- 
elamations of jjassengers on a railroad at the 
time of an accident, though not in the pres- 
ence of the party receiving an injur}-, are 
admissible as part of the ?r.s r/cstfe, to justify 
the conduct of the yiarty injured. Galena, 
&c. R. H. Co. V. Fay, 16 111. 5.58. A letter 
which is i)art of the res (jestm, is admissible in 



^ 



\ 



CHAP, v.] 



HEARSAY. 



125 



I [* § 108a. So it has been recently held, in England, that it is 
competent for the plaintiff, for the ])urpose of proving upon whose 
credit the goods sued for were sold, to put in evidence a letter 
written by himself, at the time the bargain was made, to his agent, 
desiring him to inquire as to the credit of the defendant, of a 
person to whom the person receiving the goods had referred him 
for that purpose, and stating therein that the defendant was the 
buyer. And it was further considered, that the jury might look 
at the whole letter, and although, in itself, it was not evidence of 
the truth oi' the facts affirmed, it might be considered as cor- 
roborative of the i)laintiff's version of the transaction .^ 

§ 109. In regard to the declarations of persons in possession 
of land, explanatory of the character of their possession, there has 
been some difference of ojnnion ; but it is now well settled, that 
declarations in disparagement of the title of the declarant are admis- 
sible, as original evidence. Possession is primd facie evidence of 
seisin in fee-simple ; and the declaration of the possessor, that he 
is tenant to another, it is said, makes most strongly against his 
own interest, and therefore is admissible.^ But no reason is per- 
ceived, why every declaration accompanying the act of possession, 
whether in disparagement of the claimant's title, or otherwise 
qualifying his possession, if made in good faith, should not be 
received as part of the res gestce ; leaving its effect t^i be, governed ^^^ 
by otlicr rules of evidence.^ ^i* '" ' ■ ^ %* -M ■'■• 



by 



evidence, altlioiigli tlie writcrof it niiglit be 
a witness. Koacli v. Learned, 37 Maine, 
110. In a quostion of .<cttlenient the pau- 
per's declarations when in the act of re- 
movinu', are admissible. Kielnnond ;•. 
Thoniaston, 38 Maine, 232; Cornville v. 
Brighton, 3'J lb. 333. The acts and say- 
ings of a constable at the time of a levy, 
are admissible as part of the ns (/ista\u\ 
an action against the sureties o7i liis bond 
tor neglecting to make a return thereof. 
Dobbs t-\ Justices, 17 Geo. 624.] 

1 [*MiliK! V. Leisler, 7 H. & N. 786; 
s. c. 8 Jur. N. s. 121 ; Eastman v. Bennett, 
6 Wis. 232, where tlie same principle is 
maintained.] 

'^ Teaceable v. "Watson, 4 Taunt. 16, 17, 
per Manstiekl, C. J. ; West Cambridge v. 
Lexington. 2 Pick. 536, jier Putnam, J. ; 
Little V. Libby. 2 (Jreenl. 242 ; Doe v. Pet- 
tett, 5 B. & Aid. 223 ; Carne v. Nicholl, 1 
Bing. N. C. 430 ; per Lyndhurst, C. B., in 
Chambers r. Beiiiascoui, 1 ("romp. & .Jer. 
457 ; Smith o. .Martin, 17 Conn. K. 3'jy ; 
iii/'ni, § 18 'J. 



3 Davies r. Pierce, 2 T. R. 53 ; Doe v. 
Rickarbv, 5 Esp. 4; Doe v. Payne, 1 
Stark, li. GU ; 2 Poth. on Obi. 254, App. 
Ko. xvi. § 11 ; Pankin v. Tenbrook, 6 
Watts, 388, 3".iO, per Huston, J. ; Doe v. 
Pettett, 5 H. & Aid. 223 ; Peed c. Dickey, 
1 Watts, 152 ; Walker i\ Bmadstock, 1 
Esp. 458 ; Doe v. Austin. Ping. 41 ; Doe 
V. Jones, 1 Campb. 307 ; Jackson r. Bard, 

4 Johns. 230, 234 ; Weidman r. Kohr, 4 S. 
& K. 174 ; Gibl)lehouse v. Strong, 3 Kawle, 
R. 437 ; Norton r. I'ettibone, 7 Conn. K. 
310; Snelgrove v. IMartin, 2 McCord, 241, 
243 ; Doe d. Majoribanks r. Green, 1 Gow. 
P. 227 ; Carue r. Nicoll, 1 Binsj;. N. C. 430; 
Davis V. Camjibell, 1 Iredell, P. 482; 
Crane v. ^larshall, 4 Shepl. 27 ; Adams i\ 
Prench, 2 N. llanip. P. 287 ; Treat v. 
Strickland, 10 Shepl. 234 ; Blake i'. White, 
13 N. Hamj). P. 267 ; Doe r. Langfield, 16 
M. ..<: W. 407 ; Baron de Bode's case, 8 Ad. 
& El. 243. 244, n. s. ; Abney v- Kings- 
land. 10 Ala. P. 355; Daggett v. Shaw, 

5 Met. 223; [Bartlett r. Emerson. 7 
Gray, 174 ; Ware v. Brookhouse, lb. 454 ; 



11* 



126 



LAW OF EVIDENCE. 



[part II. 



§ 110. It is to be observed, that where declarations, offered in 
evidence, are merely narrative of a past occurrence, they cannot 
T5e received as proof of the existence oif such occurrence. They 
must Be^ concomitant with the principal act, and so connected with 
it as tt) be regarded as the mere result and consequence of the 
co-existing motives, in order to form a proper criterion for directing 
the judgment, which is to be formed upon the whole conduct.^ 
On this ground, it has been holdcn, that letters written during 
absence from home are admissible as origuial evidence, explana- 
tory of the motive of dei)arture and absence, the departure and 
absence bohig regarded as one continuing act.^ 

§ 111. The same principles apply to the acts and declarations 
of one of a company of conspirators, in regard to the common 
design as affecting his fellows. Here a foundation must first be 
laid, by proof, sufficient in the opinion of the judge, to establish, 
primd facie, the fact of conspiracy between the parties, or proper 
to be laid before the jury, as tending to establish such fact. The 



Flagg V. Mason, 8 Gray, 55G] ; [ * Wood 
V. Foster, 8 Allen, 24]. Stark v. Boswell, 
6 Hill, N. Y. Rep. 405; Pike v. Hayes, 14 
N. llamp. 19 ; Smith v. Powers, 15 N. 
Hauip. 546, 5Go ; [Marcy v. Stone, 8 Cush. 
4 ; Stearns v. Hendersass, 9 lb. 497 ; 
Plim])ton V. Chamberlain, 4 Gray, 320 ; 
Ilvde r. Middlesex Co. 2 Gray, 207 ; Potts 
v."Everliart, 2(5 Penn. St. R. 498; St. 
Clair V. Shale, 20 lb. 105 ; Doe v. Camp- 
bell, 1 Ired. 482 ; Brewer v. Brewer, 19 
Ala. 481. A declaration by a tenant, dead 
at the time of the trial, that lie was not en- 
titled to connnon of pasture in respect to 
his farm, is not admissible against iiis re- 
versioner. Papendick v. Bridgwater, 80 
Eng. Law & Eq. 298]. Accordingly, it has 
been held, that a statement made by a per- 
son not suspected of theft and before any 
search made, accounting for his possession 
of pro])erty wliicli he is afterwarcls charged 
with having stolen, is admissible in his fa- 
vor. Re.x V. Abraham, 2 Car. & K. 550. 
But see Smith v. Martin, 17 Conn. R. 899. 
AVhere a party after a post-nuptial settle- 
ment mortgaged the same premises, it was 
hekl that, as his declarations could bind 
liiui only while the interest remained in 
liim, his declarations, as to the consid- 
ation paid by the subsequent purchaser, 
were not admissible against the claimants 
under the settlement, for this would ena- 
ble him to cut down his own previous acts. 
Doe i\ Weblier, 8 Xev. & Man. 58i".. [ * And 
it has recently been hold in England, Reg. 
V. Birmingham, 5 L. T. n. s. 809, that the 



oral declaration of a deceased occupant of 
premises, that he occupied the .same as 
tenant at a rent of .£20 per annum, was 
admissible to prove not only the tact of the 
tenancy, but tiie amount of the rent.] 

1 2 Poth. on Obi. by Evans, pp. 248,249, 
App. No. xvi. § 11. Ambrose v. Clendon, 
Cas. temp Hardw. 2G7 ; Doe v. Webber, 1 
Ad. & El. 738. In Ridley v. Gyde, 9 
Bing. 849, where the point was to estab- 
lish an act of bankrujitcy, a conversation 
of the bankru]it on the 20th of November, 
being a resumption and coulinuation of one 
which had been begun, but broken oft' on the 
25th of October precedmg, was .Jidmitted 
in evidence. See also Boyden v. ]Moore, 
11 Pick. 802; Walton v. Green, 1 C. & P. 
521 ; Reed v. Dick, 8 Watts, 479 ; O'Kel- 
ly i\ O'Kelly, 8 Met. 480 ; Styles y. West- 
ern Railroail Corj). Id. 44 [Battles v. Batch- 
elder, 89 Maine, 19]. 

2 Rawson v. Ilaigh, 2 Bing. 99, 104 ; 
Marsh v. Davis, 24 Verm. 808 ; New Mil- 
ford V. Sherman, 21 Conn. 101. [The 
reasons given by a wife, on the cJai/ after 
her return to lier father's house for leaving 
hei- husband, are not a part of the res ijcsta-, 
as connected witii and jJiU't of tlTe act of 
leaving her husband's liouse, and so are 
not admissible in evidence in an action 
brought by the father against the husband 
for necessaries supplied the wife ; those 
made at the time of the return being ad- 
missible. Johnson t'. Sherwin, 3 Gray, 
374.] 



CHAP, v.] HEARSAY. 127 

connection of the individuals in the unlawful enterprise being thus 
shown, every act and declaration of each member of the con- 
federacy, in pursuance of the original concerted plan, and with 
reference to tlie common object is, in contem])lation of law, the 
act and declaration of them all ; and is therefore original evidence 
against each of them. It makes no difference at what time any. 
one entered into the conspiracy. P^very one who does enter into_^ 
a common purpose or design is generally deemed, in law, a party i 
to every act, wdiich had before been done by the others, and a I 
party to every act, which may afterwards be done by any of the! 
others, in furtherance of such common design.^ Sometimes, for| 
the sake of convenience, the acts or declarations of one are admitted 
in evidence, before sufficient proof is given of the conspiracy ; the 
prosecutor undertaking to furnish such proof in a subsequent 
stage of the cause. But this rests in the discretion of the judge, 
and is not permitted, except under particular and urgent circum- 
stances ; lest the jury should be misled to infer the fact itself of 
the conspiracy from the declarations of strangers. And here, also, 
care must be taken that the acts and declarations, thus admitted, 
be those only which were made and done during the pendency of 
the criminal enterprise, and in furtherance of its objects. If they 
took place at a subsequent period, and are, therefore, merely narra- 
tive of past occurrences, they are, as we have just seen, to be 
rejected.2 The term acts, includes written correspondence, and 
other papers relative to the main design ; but whether it includes 
unpublished writings upon abstract questions, though of a kin- 
dred nature, has been doubted.^ Where conversations are proved, 
the effect of the evidence will depend on other circumstances, such 
as the~lact and degree of "the prisoner's attention to it, and his 
assent or disapproval.^ 

1 Rex V. "Watson, 32 Howell's St. Tr. false imprisonment, tl.e declaration of a 

7, per Bayley, J. ; Uex v. Brandrelh, Id. co-detendant, sliDwinj; personal malice,, 

857, HoS^Kex v. Hardy, 24 Howell's St. though made in the absence of the others, 

Tr 451, 452, 453, 475; American Fur Co. and several weeks after the tact, was ad- 

I'. The United States, 2 Peters, 358, 305 ; mitted by Garrow, B., without such re- 

Crowninshield's case, 10 Pick. 497 ; Rex v. strictioh. Where no coinmon object or 

Hunt, 3 B. & Aid. OGti ; 1 East, P. C. i17, motive is imputed, as in actions for negli- 

§ 38 ; Nichols r. Dowding, 1 Stark. K. 81. gence, tlie declaration or admission of one 

* - Rex V. Hardy, sn/ira. The declara- defendant is not admitted a;j:ainst any but 

tions of one co-trespasser, wTTcre several^ himself^ Daniels v. Potter, 1 M. & M. 
are jointly sued, may be f>;iven in evifJSlJl. 

dencc against himself, at wliafever-liiiie it " Foster's Rep. 198 ; Rex v. Watson, 2 

•was uuide; but, if it was not part of the Stark. R. 110, 141-147. ^ 

res .f/fs^fp, its eftect is to be restricted to the ■* Rex r. HiU-dy, 24 Howell's St. Tr. 

party making it. Yet, in Wriglit v. Court, 703, per Eyre, C. J. 
2 C. & P. 232, wliicli was an actiou for 



128 



LAW OF EVIDENCE. 



[part II. 



§ 112. Tliis doctrine extends to all cases o{ parinership. AVhere- 
cvei" any nunilier of persons associate themselves in the joint 
])i'osecution of a common enterprise or design, conferring on the 
collective hody the attribute of individuality by mutual compact, as 
in commercial partnerships, and similar cases, the act or declaration 
of each member, in furtherance of the common olyect of the associa- 
tion, is tlie act of all. IJy the very act of association, each one is 
constituted the agent of all.^ While the being thus created exists, 
it speaks and acts only by the several members ; and of course, 
when that existence ceases by the dissolution of the firm, the act 
of an individual member ceases to have that etrcct ; binding himself 
alone, except so far as by the articles of association or of dissolu- 
tion it may have been otherwise agreed.^ An admission, however, 
by one partner, made after the dissolution, in regard to business of 
the firm, previously transacted, has been held to be Ijiuding on the 
firni.^ 



1 Sandilands v. Marsh, 2 B. & Aid. 
673, 678, 67'J ; Wood v. Braddick, 1 Taunt. 
104, and PetluTick i\ Turner et al. there 
cited; IJex /;. Hard wick, 11 F-ast, 578, 
58'J ; Van lleinisdvk v. Kane, 1 Gall. 6:J0, 
635; Nichols v. Dowdin-r, 1 Stark. K. 81; 
Hodcniiiyl v. Vinirerhoed, Cliitty on Bills, 
618, note ['!) ; Coit v. Tracy, 8 Conn. 11. 
268. [In an action against two as alleged 
c()i>artiK'rs, evidence of statements and 
declarations wliicli would he admissible 
only upon tlie assumption of the existence 
of the copartnersliip, is incompetent to 
prove such copartnership. Dutton v. 
Woodman, 'J Cash. 255 ; Allcott r. Strong, 
•j Cush. 323. And evidence to show the 
contimumce of a partnership after it has 
been dissolved, witii notice to the ])arties, 
nnist ije as satisfactory as that recjuired to 
show its establisbuieut. Allcott v. Strong, 
t(^ sni>ra.\ 

'■'■ Bell V. Morrison, 1 Peters, 371 ; Bur- 
ton c. Issitt, 5 V>. & Aid. 267. 

* This doctrine was extended by Lord 
Brougham, to the admission of payment to 
the partner after the dissolution. Britch- 
ard V. Draper, 1 Buss. & M. lUl, lU'J, 200. 
See Wood v. Braddick, 1 Taunt. 104 ; 
■Wiiitcomli ?•. Wiiiting, 2 Doug. 652; ap- 
])r()ved in Mclntire /■. Oliver, 2 llawkes, 
20'.l ; Beit/ r. Fuiier, 1 McCord, 541 ; C^ady 
V. Slieplierd, 11 Tick. 400; Van lieimsdyk 
V. Kane, 1 Gall. 635, 636. See also Parker 
V. Merrill, 6 (ireenl. 41; Martin v. Boot, 
17 JNIass. 223, 227; Vinal );. liurrill, 16 
Pick. 401 ; Lefavour v. Vandcs, 2 Blackf. 
240; Bridge c (iniy, 14 Pick. 55; (Jay v. 
Bowen, 8 Met. 100; Mann v. Locke, 11 



N. Ilamp. R. 246, to the same point. [See 
also Looniis v. Looniis, 26 Vt. 108 ; Pierce 
V. Wood, 3 Foster, 51U ; Dnnuright ;;. 
Philpot, 16 Geo. 424. But wiiere, after 
the dissolution of a copartnership, one 
])artner assigned liis interest in a partner- 
ship claim against the defendant to the 
other ]iartner, in a suit on such claim 
brought in the name of both ])artners for 
the benefit of the assignee, the declarations 
of tlie assignor made after the assignment 
are not admissible in favor of the tlefeiid- 
ant. (Jillighan v. Tebbetts, 33 IMaine, 
360.] In New York, a different doctrine 
is established. Walden v. Sherburne, 15 
Johns. 400; Hopkins v. Banks, 7 Coweu, 
650; Clark v. Glcason, Cowen, 57; Ba- 
ker V. Stackpole, Id. 420. So in Louisituia. 
Lambeth ;;. Vawter, 6 Bob. l^a. K. 127. 
See, also, in support of the text, Lacy v. 
McNeil, 4 Dowl. & By. 7. Whether the 
acknowledgment of a debt by a i)artner, 
after dissolution of the iJartiiershi]), will 
be sullicieut to take the case out of the 
statute of limitations, and revive the rem- 
edy against the others, has been very 
nnich controverted in this country ; and 
the authorities to the point aie conflicting. 
In ICngland, it is now settled by Lord Ten- 
terden's Act (0 Geo. 4, c. 14), that such 
acknowledgment, or new j)r()mise, inde- 
))eiKlent of the fact of part payment, shall 
not have such effect, cxcejit against the 
jjarty making it. Tliis provision has been 
adopted in the laws of some of the United 
States. See Massarliusells, Kev. Sts. ch. 
I2i), § 14-17 ; IWmont, Bev. Sts. ch. 58, 
§§ 23, 27. And it has since been holden 



CHAP. 



^'•] 



HEARSAY. 



129 : 



§ 113. A kindred principle governs in regard to tlic declarations 
of agents. The principal cunslitutcs the agent his representative, in 



•J 



4 



in England, wliere a debt was originally 
contracted witli a partnership, au(l more 
than six years afterwards, hut within six 
years before action hrought, tiie partner- 
siii]) having iieen dissolved, one partner 
inatle a partial payment in respect of tlie 
debt, — that this barred the operation of 
the statute of limitations ; althoiigli the 
jury found that lie made the i)aynient 
by concert with the ]>laintifls, in the jaws 
of bankruptcy, and in fraud of his late 
jiartners. (ioddard i'. Ingram, 3 Ad. & 
lil. S3y, N. s. The American cases seem 
to have turned mainly on the question, 
^. "^ whether the admission of the existing in- 

4 ;^ dehtment amounted to the making of a 
vj new contract, or not. Tlie courts which 
>^ ?L.have viewed it as virtually a new contract, 

1 i have held, that the acknowledgment of 

J-^ the debt by one partner, after the dissolu- 

X "t tion of jwrtnership, was not admissible 

against his cojiartner. This side of the 

(juestion was argued l\v Mr. Justice Story, 

with his accustomed ability, in delivering 

" the judgn)ent of the court in Bell v. Mor- 

"jO rison, 1 I'eters, 367, et sec/. ; where, after 

^^ stating the point, be proceeded as follows : 

" In the case of Bland v. Ilaselrig, 'Z Vent. 

151, where the action was against four, 

upon a joint promise, and the i)lea of the 

Y JY statute of limitations was put in, and the 

'^ ^ jury found that one of the defendants did 

5 V^^promise within six years, and that the 
(* i others did not ; three judges, against Ven- 
J;.^ tris, J., held that the plainlitf could not 
J < liave judgment against the ilefendaiit, who 



5 



h 



K 



"^had made the promise. This case has 
been explained upon the ground, that the 
A'erdict did not conform to the pleadings, 
and establish a joint promise. It is very 
doubtful, upon a critical examination of 
the report, whether the opinion of the 
court, or of any of the judges, proceeded 
solely ujion such grounii. In Whitcomb 
V. Whiting, 2 Doug. fio2, decided in 1781, 
in an action on a joint and several note 
brought against one of the makers, it was 
lield, that proof of payment, by one of the 
others, of interest on the note and of part 
of the principal, within six years, took the 
case out of the statute, as against tlie de- 
fendant who was sued. Lord Mansfield 
said, 'payment by one is jiayment for all, 
the one acting virtually for all the rest; 
and in the same manner, an admission by 
one is an admission by all, and the law 
raises the promise to pay, when the debt is 
admitted to be due.' This is the whole rea- 
soning reported in theI'iVse,aiid is certainly 
not" very satisfactory . It assumes that 



one party, who lias authority to discharge, 
has necessaril}', also, authority to charge 
the others ; that a virtual agency exists in 
t'ach joint debtor to pay for the whole ; 
and that a virtual agency exists by analogy 
to charge the whole. Now, this very posi- 
tion constitutes the matter in controversy. 
It is true, that a payment by one does en- 
ure for the benelit of the whole : but this 
arises not so much trom any virtual agency 
for the whole, as by ojieration of law ; for 
the payment extinguishes the debt ; if 
such j)ayment were made after a positive 
refusal or prohibition of the other joint 
debtors, it would still operate as an extin- 
guishment of the debt, and the creditor 
could no longer sue them. In truth, he 
who pays a joint debt, pays to discharge 
himself; and so far from binding the 
others conclusively by his act, as virtually ' 
theirs also, he cannot recover over against 
them, in contrilnition, without such pay- 
nu'Ut has been rightfully made, and ought 
to charge them. When the statute has ""' ^ 
run against a joint debt, the reasonable ' -^ 

presumption is, that it is no longer a sub- s^ _ "x, 
sisting debt ; and, therefore, there is no '^ 
ground on which to raise a virtual agency * 
to pay that which is not adndtted to exist. \*.. \'^- 
But if this were not so, still there is a great '^ 

ditft'rence between creating a virtual agen- " ^-, 
cy, which is for the benefit of all, and one 
which is onerous and prejudicial to all. 
The one is not a natural or necessary con- 
secpience from the other. A person may 
well authorize the jiayment of a debt for 
which he is now liable, and yet refuse to 
authorize a charg^ where there at present 
exists no legal liability to pay. Yet, if the 
princij)le of Lord iNIansfield he correct, the 
acknowledgment of one joint debtor ^\'lll 
bind all the rest, even though they shoidd 
have utterly denied the debt at the time ^^^ 
when such acknowledgment was made. 
The doctrine of ^^'hitcomb r. Whiting has "- ' ■ 
been followed in Lngland in subsequent 
cases, and was resorted to in a strong man- 
ner, in Jackson r. Fairbank, '2 11. Bl. 310, \ .^ 
where the admission of a creilitor to prove ,„ "^^ 
a debt, on a joint ami several note imder a -^^ 
bankru])tcy, and to receive a dividend, 
was held sutHcient to charge a solvent 
joint debtor, in a several action against 
him, in which he i)leaded the statnte, as 
an acknowledgment of a sidisisting debt. 
It has not, however, been received without 
hesitation. In Clark v. Biadshaw, 3 Ksp. 
lob. Lord Kenyon, at AV.s/y^r/H.s, expressed ' 
some doubts njion it ; and the catise went 
otl' on another ground. And in Bradram 



■ <i 



r 



100 



LAW OF EVIDENCE. 



[part II. 



the transaction of certain business ; whatever, therefore, the aucnt 
docs, in the lawful prosecution of that business, is the act of the 



V. "Wharton, 1 Barn. & Aid. 4G3, tlie case 
was very much sliaken, if not overturned. 
Lord Kllenl)orouyli, upon tliat occasion 
useil lanjj;uai;e, from wliicli his dissatisfac- 
tion witii the wlioie doctrine may he clearly 
interred. ' This doctrine,' said lie, 'of re- 
huttinii the statute of limitations, hy an 
ackuowledtjmeiit other tlian that of the 
part}- himself, hcfran with the case of 
Whitcomb r. Whiting. By that decision, 
where, however, there was an e.\i)ress ac- 
knowledgment, hy an actual i)aynient of a 
part of the debt by one of the parties, I am 
bound. But that case was full of hard- 
ships ; for this inconvenience maj^ fijllow 
from it. Suppose a person liable jointly 
with thirty or forty others, to a del)t ; he 
may have actually paid it, he may have 
had in his possession the document hy 
which that j)ayment was proved, hut may 
have lost his receipt. Tlien, though this 
was one of the very cases which this stat- 
ute was passed to protect, he may still be 
bound, and his liability be renewed, by a 
random acknowledgment made hy some 
(jne of the thirty or I'orty others, who may 
he careless of what mischief he is doing, 
and who may even not know of the pay- 
ment which lias been made. Beyond that 
case, therefore, 1 atn not prepared to go, 
so as to dej)rive a party of the advantage 
given him by the statute, by means of an 
implied acknowledgment.' In the Ameri- 
can courts, so far as our researches have 
extended, few cases have heen litigated 
upon this question. In Smith v. Ludlow, 
tj Joims. 2<')8, the suit was brought against 
both jiartners, and or# of them pleaded 
the statute. Upon the dissolution of the 
jiartnership, public notice was given that 
the other partner was authorized to adjust 
all accomits ; and an account signeil by 
him, after such advertisement, and within 
>ix vears, was introduced. It was also 
proved, that the jilaintitt" called on the 
jiartner, who pleaded the statute, before 
the connnencement of the suit, and re- 
quested a settlement, and that he then 
admitted an account, dated in 1707, to 
ha\ e been made out hy him ; that he 
thought tlve account had heen settled hy 
the other detc'iidant, in whose hands the 
books of partnership were; and that he 
would see the other defendant on the sub- 
ject, and communicate the result to the 
plaintiff. Tliejjiiurt held that this was 
sufficient PVlilkO the case out of the stat- 
ute ; and s aid, t hat without any express 
a u thority, the cohfes.^lon of one partner , 
tiiler il{e dissolution, will take a debt out 




K 



of the statute . Tlie acknowledgment will 
not, ot itselt', be evidence of an original j 
debt; for that would enable one party toj 
bind the other in new contracts. But;^ r\ 
the original debt lieing j)roved or admitted, I I 
the contession of one will bind the other,'' \ 
so as" to prevent him from availing himself | » 
of the statute. This is evident, from the! • 
cases of Whitcomb v. Whiting, and Jackson 
V. I""airbank ; and it results necessarily 
from the power given to adjust accounts 
The court also thought the acknowledj 
ment of the ])artner, setting up the sta 
ute, was sutficient of itself to sustain th 
action. This case has the peculiarity oi 
an acknowledgment made by both part^ 
ners, and a formal acknowledgment by 
the partner who was authorized to adjust 
the accounts after the dissolution of the 
partnership. There was not, therefore, a. 
virtual, but an express and notorious 
agency, devolved on him, to settle the ac- 
count. The correctness of the decision 
cannot, upon the general view taken by 
the cotirt, be questioned. In Roosevelt v. 
Marks, Johns. Ch. 266, 2'Jl, iMr. Chan- 
cellor Kent admitted the authority of 
Whitcomb v. Whiting, but denied that 
of Jacksi^n v. Fairbank, for reasons which 
apjiear to us solid and satisfactory. Upon 
some other ciises in New York, we shall 
have occasion hereafter to comment. Iij^. 
Hunt r. Bridgham, 2 I'ick. 5^<1, the Su- 
lireme Court of Massachusetts, upon the 
authority of the cases in Douglas, 11. Black- 
stone, and Johnson, held, that a partial 
payment by tlie jirinciiial debtor on a note, 
took the case out of the statute of limita- 
tions, as against a surety. The court do /--v , 
not proceed to any reasoning to establish ^0 J ' 
the principle, considering it as the result :r ** J 
of tlie authorities. Shelton >•. Cocke, 3 ^ j 
Munfbrd, V.)l, is to the same eflect; and ^C ^ 
contains a mere annunciation of the rule, ^^ • 
without anj- discussion of its principle. Jx i ' 
Simpson v. Morrison, 2 Bay, 583, pro- ^cJ ^ 
ceeded upon a broader ground, and as- 
sumes the doctrine of the case in 1 Taunt. 
V\i, hereinafter noticed, to be correct. 
Whatever may be the just influence of 
such recognitions of the principles of the 
English cases, in other states, as the doc- 
trine is not so settled in Kentucky, we 
must resort to such recognition only as 
furnishing illustrations to assist om- rea- 
soning, and decide the case now as if it " "^ 
had never been decided before. By the v 
general law of partnership, the act of each ^ ^ 
partner, during the continuance of the > J*^ 
partnership, and within the scope of its^^ ; 



-6. 

.1 






i 



v> 



CHAP, v.] 



HEARSAY. 



principal, wliom he represents. 

will bind the principal, there his representations, declarations, and 



And J^ where jlie acts of the agent 




.^K 



objects, binds all tlie others. It is con- 
sidered the act of eacii, and of all, result- 
ing from a general and mutual delegation 
of authority. Each partner may, there- 
tore, bind the partnersliip by his contracts 
in the partnership business ; l)ut he cannot 
bind it by any contracts beyond those lim- 
its. A dissolution, however, puts an end 
to the authority. IJy the force of its terms, 
it op(?rates as a revocation of all power to 
create new contracts ; and the right of 
partners as such, can extend no further 
than to settle the partnershi]) concerns 
already existing, and to distribute the re- 
maining funds. Even this right may be 
qualified, and restrained, by tiie express 
delegation of the whole authority to one 
lof tlie partners. The question is not, how- 
ever, as to the authority of a partner after 
jthe dissolution to adjust an admitted and 
subsisting debt; we mean, admitted by 
the whole partnership or unbarred by the 
statute; but whether he can, by his sole 
act, after the action is barred by lapse of 
time, revive it against all the partners, 
without any new authority communicated 
to him for this purjjose. We think the 
proper resolution of this point depends 
upon another, that is, whether the ac- 
knowledgment or promise is to be deemed 
a mere continuation of the original prom- 
ise, or a new contract, springing out of, 
and supported by, the original considera- 
tion. We think it is the latter, both upon 
principle and authority ; and if so, as after 
the dissolution no one partner can create 
a new contract, binding upon the others, 
liis acknowledgment is inoperative <aml 
void, as to them. There is some confu- 
sion in the language of the books, result- 
ing from a want of strict attention to the 
distinction here indicated. It is often 
said, that an acknowledgment revives the 
promise, when it is meant, that it revives 
the debt or cause of action. The revival 
of a debt supposes that it has once been 
extinct and gone ; that there has been a 
jieriod in which it had lost its legal use 
and validity. The act which revives it 
is what essentially constitutes its new be- 
ing, and is inseparable from it. It stands 
not by its original force, but by the new 
promise, which imi)arts vitality to it. 
Proof of the latter is indisjiensable, to 
raise the assumpsit, ou which an action 
iCan be maintained. It was this view of 
the matter which first created a doubt, 
whether it was not necessary that a new 
eonsiileration should be i)ioved to sujiport 
the promise, since the old consideration 



was gone. That doubt has been over- 
come ; and it is now held, that the origi- 
nal consideration is sufficient, if recognized 
to uphold the new promise, although the 
statute cuts it off, as a support for the old. 
What, indeed, would seem to^be decisive 
oh this subject is, that the new promise, ^., 
if qualified or conilitional, restrains the 
rights of the party to its own terms; and 
if he cannot recover bj' those terms, he. ' 
cannot recover at all. If a person promise ^ 
to pay, upon condition that the other do -. 
an act, performance must be shown, hefore -^ 
any title accrues. If the declaration lays , 
a promise by or to an mtestate, proof of '"^' 
the acknowledgment of the debt by or to • "' 
his personal representative will not main- w 
tain the writ. Why not, since it estab- ^' -'- 
lislies the continued existence of the debt^i^ " " 
The plain reason is, that the promise is a ,' 
new one, by or to the administrator him- . 
self, upon the original consideration; and" 
not a revival of the original promise. So, N- 
if a man proiuises to pay a preexisting 'n„ 
debt, barred by the statute, when he is 
able, or at a future day, his ability must V -v 
be shown, or the time must be passed be- ^ \^ 
fore the action can be maintained. Why "? vfw 
Because it rests on the new promise, and 
its terms must be complied with. We do '^ 
not here speak of the form of alleging the ' - 
promise in the declaration ; upon which, " 
perhaps, there has been a diversity of 
opinion and judgment ; but of the tact it- 
self, whether the promise ought to he laid 
in one way or another, as an absolute, or 
as a conditional ijfomise ; which maj' de- _" 
pend on the rules of pleading. This very^^' 
point came before the twelve judges, ia ■__ 
the case of Hey ling v. Hastings, 1 Ld. 
Kaym. 381), 421, in the time of Lord Holt.i 
There, one of the points was, ' whelheri .. 
the acknowledgment of a debt within six! 
years wotdd amount to a new promise, to] 
bring it out of the statute ; and they 
all of oj)inion that it wt)uld not, but ths 
was evidence of a promise.' Here, then, 
the judges manifestly contemiilated the 
acknowledgment, not as a continuation of 
the old promise, but as evidence of a new 
promise ; and that it is the new promise 
which takes the case out of the statute. 
IS'ow, what is a new promise but a new 
contract ; a contract to pay, upon a ]ire- 
cxisting consideration, which does not of 
itself bind the party to pay independently 
of the contract f ISo, in Doydell r. Drum- 
niond, '2 Cami)b. 1.57, Lord Lllenborough, 
with his characteristic precisiou, said : 
' If a man acknowledges tlie existence of 



ise, to 3 -4 
were >r 
hat it 



132 



LAW or EVIDENCE. 



[part II. 



admission?, respecting the snl)jeet-matter, "will also bind liiui^f 
made at the same time, and constitntiug part of the res r/estcc.^^ ^ 



a debt, barred by tlic statute, tlie law has 
been supposeii to raise a new i)r()iiiise to 
pay it, ami tlius the remedy is revived.' 
And it may hv affirmed, that tiie general 
current of the Knglisli, as well as the 
American authorities, oonlbrms to this 
view of tiie oi)eration of an acknowledg- 
ment. In Jones v. Moore, 5 Biimey, 573, 
Mr. Chief Justice Tilghman went into an 
elaborate examination of this very ])oint; 
and came to the conclusion, from a review 
of all the cases, that an acknowledgment 
of tlie debt can only be considered as evi- 
dence of a now proinise ; and he added, 
' 1 cannot comprehend the meaning of re- 
viving the old debt in any other manner, 
than by a new ])romise.' There is a class 
of cases, not yet adverted to, which mate- 
rially illustrates the right and powers of 
I)artners, after the dissolution of the part- 
nership, and bears directly on the point 
under consideration. In llackley /•. Pat- 
rick, 3 Johns. 031), it was said by tlie court, 
that ' after a dissolution of the partnership, 
the power of one party to bind the others 
wholly ceases. There is no reason why 
this acknowledgment of an account shoidd 
bind his copartners, any more than his 
giving a i)romissory note, in the natue of 
the tirni, or any other act.' And it was 
therefore heUl, that the plaintiff ni'iisTpro- 
duce further evidence of tlie existence of 
an antecedent debt, before he could, re- 
cover ; even th ough the ackjiowledi^ilietit 
was T)y a partner authorized to settle all 
tlie accounts of the tirni. This doctrine 
was again recognized J)y the same court, 
in VValden v. Slierhurne, 15 Johns. 4()'.l, 
424, although it was admitted, that in 
Wood V. liraddick, 1 Taunt. 104, a (lifer- 
ent decision had been had in England. If 
this doctrine be well founded, as we think 
it is, it furnishes a strong ground to (jues- 
tion the efficacy of an acknowledgment to 
bind the partnership for any purjxjse. If 
it does not estaljlish the existence of a 
debt against the ]>artnership, why should 
it be evi<lence against it at all ( If evi- 
dence, iiliuiii/i'., of tacts within the reach of 
the statute, as the existence of a debt, 
be necessary before the acknowledgment 
binds, is not this letting in all the mis- 
chiefs against which the statute intendeil 
to guard the jiarties ; viz., the introduction 
of stale and dormant demands, of long 
standing, and of uncertain proof! If the 
acknowledgment, /»-;• sf, tloes not binil the 
other partners, where is the propriety of 



admitting proof of an antecedent debt, ex-i ^ 
tinguished by the statute as to them, to >.; . 
be revived without their consent? It '• 
seems dithctdt to tind a satisfactory reason 
why an acknowledgment should raise a 
new promise, when the consideration, up- ' 
on which alone it rests, as a legal ohliga- ; 
tion, is not coupled with it in such a shape v 
as to bind the ])arties ; that the i)arties are (^ 
not bomid by the admission of the ddit. as 
a debt, hut are l)oimd hy the acknowledg- -' 
ment of the debt, as a promi?e, ujxjn ex- - 
trinsic proof. The doctrine in 1 'I'aunt. .. 
104, stands upon a clear, if it be a legal, ' 
ground ; that, as to the things i)ast, the ■ 
partnership continues, and always must ". 
continue, notwithstanding the ilissolution. 
That, however, is a matter which we are 
not prepared to admit, and constitutes the 
very ground now in controversy. The j 
light in which we are disposed to consideivy 
this question is, that after a dissolution of 
a partnership, no ])artner can create a cause 
of action against the other partners, except 
by a new authority comnuuiicated to him\- 
for that {)urpose. It is wholly immaterial, 
what is the consideration which is to rais(^ 
such cause of action ; whether it be a supJ." 
posed preexisting debt of the jiartnership, 
or any auxiliary consideration, which ^, 
might prove henelicial to them. Unless - 
adopted by them, they are not bound by 
it. When the statute of limitations has 
once run against a debt, the cause of action "" 
against the i)artnersliip is gone. The ac- '^"^ 
knowledgment, if it is to operate at all, is^"''' 
to create a new cause of action ; to revive " ^ 
a debt which is extinct; and thus to give 'S.- 
an action, which has its lilie from the new^ • 
promise iinjjlied by law from such an ac- 
knowledgment, and operating and limited -, v 
by its jiurport. It is, then, in its essence, * 
the creation of a new right, and not the - .. 
enforcement of an old one. We think,- :' 
that the power to create such a right does ~ 
not exist after a dissolution of the partner- „ ^ 
ship in any i)artner." _v ^ 

It is to be observed, tliat in tliis opinion 
the court were not unanimous : and that 
the Icjirned judge declares that the major- 
ity were " principally, though not exclu- 
sively, influenced by the course of decisions 
in Kentucky," where the action arose. A 
similar view of the question has been 
taken b}- the courts of J-'eiinsijIrtiiiifi, both 
before and since the" decision of Bell v. 
Morri.-ion ; Levy v. Cadet, 17 Serg. & 
Kaw. Ili7 ; 8earight v. Craighead, 1 Teim. 



1 Story on Agency, § 134-137. 



CHAP, v.] 



HEARSAY. 



-1 oo 
loo 



" *They are of the nature of original evidence, and not of hearsay ; 
^ the representation or statement of the agent, in such cases, being 
'f the ultimate fact to be proved, and not an admission of some 
J other fact.i But, it must be remembered, that the admission 
X of the agent cannot always be assimilated to the admission of 

^thc principal. The party's own admission, whenever made, maj 
t J^ givGi^ in ev id ence against him ; but the admission or declaration 
J of his agent binds him only when it is made during the continu- 

Lance of the agency in regard to a transaction then depending et 
dumfervet opus. It is TDecaiise Tt is' a verBal acf, ah3"'part of the 
^ res ffestce, tiiat it is admissible at all ; and therefore, it is not ncces- 



135; and it has been followed by the 
Courts of Indiana. Yandes v. Letiivour, 
2 Blackf 371. Other judges have viewed 
such admissions not as going to create a 
new contract, but as mere acknowledg- 
ments of the continued existence of a debt 
previously created, tiiereby repelling the 
presumption of payment, resulting from 
lapse of time, and thus taking the case out 
of the operation of the statute of limita- 
tions. To. this eflect are WJiite v. Hale, 3 
rick. 291 ; Martin v. Root, 17 Mass. 222, 
227; Cady v. Shepherd, 11 Pick. 400; 
Vmal V. Bm-rill, 16 Pick. 401 ; Bridge 
V. Gray, 14 Pick. 61 ; Patterson v. 
Choate, 7 Wend. 441 ; Hopkins v. Banks, 
7 Cowen, 650; Austin v. Bostwick, 9 
Conn. 496 ; Greenleaf v. Quincv, 3 Fairf. 
11 ; Mclntire v. Oliver, 2 Hawks, 209; 
Ward V. HoweU, 5 Har. & Johns. 60; 
Fisher v. Tucker, 1 McCord, Ch. K. 175 ; 
Wheelock v. Doolittle, 3 WaslO). Vt. R. 
440. In some of the cases a distinction is 
strongly taken between admissions wliicli 
go to estabUsh the original existence of 
the debt, and those which only show that 
it has never been jiaid, but still remains in 
its original force ; and it is held, that be- 
fore the admission of a partner, made 
after the dissolution, can be received, the 
debt must first be proved, aliunde. See 
Owings V. Low, 5 Gill. & Johns. 134, 144; 
Smith V. Ludlow, 6 Johns. 267 ; Patterson 
r. Choate, 7 Wend. 441, 445 ; Ward v. 
Howell, Fisher v. Tucker, Hopkins v. 
Banks, Vinal v. Burrill, ubi supra ; Shel- 
ton V. Cocke, 3 Munf 197. In Austin v. 
Bostwick, the partner making the admis- 
sion had become insolvent; but this was 
held to make no difference, as to the ad- 
missibility of his declaration. A distinc- 
tion has ahvaj's been taken between ad- 
missions by a partner after the dissolution, 
but before the statute of limitations has 
attached to the debt, and those made 
afterwards ; the former being held rcceiv- 



able, and the latter not. Fisher v. Tucker, 
OlcCord, Ch. R. 175. And see Scales c. 
Jacob, 3 Bing. 638 ; Gardner v. McMahon, 
3 Ad. & El. 566, n. s. See further on the 
general doctrine, post, § 174, note. In all 
cjises, where the admission, whether of a 
partner or other joint contractor, is re- 
ceived against his companions, it must 
have been made in good faith. Coit i'. 
Tracy, 8 Conn. 268. See also Chardon v. 
Oliphant, 2 Const. R. 685; cited in Coll- 
yer on Partn. 236, n. (2d Am. ed.). It 
may not be useless to observe, that Bell v. 
Morrison was cited and distinguished, 
partly as founded on the local law of Ken- 
tucky, in Parker r. Merrill, 6 Greenl. 47, 
48 ; and in Greenleaf v. Quincy, 3 Fau-f. 
11 ; and that it was not cited in the 
cases of Patterson v. Choate, Austin v. 
Bostwick, Cady v. Shepherd, Vinal v. 
Burrill, and Y'andes r. Lefavour, though 
these were decided subsequent to its pub- 
Ucation. [* Partners, after the dissolution 
of the partnersliip, and aside from any 
agency in setthng the business, are per- 
haps tairly to be regarded in the light of 
ordinary joint contractors ; and if both are 
parties to the action, the declarations of 
both, in regard to the common indebted- 
ness, are admissible. But where only one, 
or any number less than the whole, are 
parties, the mere declarations and admis- 
sions of a co-conti-actor, not a party, and 
unaccompanied by any act in furtherance 
of the connnon duty or obligation, are not 
ordinarily held admissible evidence against 
the others, but the cases are conflicting 
upon this point. Where payments were 
made by a co-contractor, it was held suffi- 
cient to remove the bar of the statute of 
limitations, even when such payments 
were made by the jirincipal debtor, and 
the suit was against the surety tdone 
Joslyn V. Smith,' 13 Vt. Rep. 353.] 
1 1 Phil. Evid. 381. 



P 



-»^e^ 












^ 



-i?^ f 



^-c^ *" 










L-**«i>?^ 



1C4 



LAW OF EVIDENCE. 



[part II. 



sary to call the agent himself to prove it ; ^ but wherever what he 
did is adiiiibsible iii evidence, there it is competent to prove what 
he said about the act while he was doing it ; ^ and it follows, that 
where his right to act in the particular matter in question has 
ceased, the principal can no longer be affected by his declarations, 
Lthey being mere hearsay.^ [ * Then the declaration of the driver of 
vk car, after the car had stopped, assigning the reason why he did 
hot stop the car, and thus prevent the injury to plaintiff, while 
Lrossing the street, that he could not stop the car because the 
■brakes were out of order, being made after the injury was in- 
Iflicted and the transaction terminated, is not admissible against 
the company in whose employ such driver was, it being mere 
hearsay.'*] 



1 Doe V. Hawkins, 2 Ad. & El. 212, 
N. s. ; Sauniere v. Wode, 3 Harrison, R. 
299. 

'^ Garth v. Howard, 8 Bing. 451 ; Fair- 
lie V. Hastings, 10 Ves. 12B, 127; The 
Mechanics Bank of Alexandria v. The 
Bank of Columbia, 5 Wheat. 336, 337 ; 
Laii^liorn v. Allmitt, 4 Taunt. 519, i)er 
Glbbs, J. ; llannay v. Stewart, 6 Watts, 
487, 489 ; Stockton i-. Uemuth, 8 Watts, 
39 ; Story on Agency, 126, 129, note (2) ; 
Woods V. Banks, 14 N. Hamp. 101 ; 
Cooley V. Norton, 4 Cush. 93. In a case 
of libel for damages, occasioned by colli- 
sion of ships, it was held that tlie admis- 
sion of the master of tlie ship proceedeil 
against might well be articulated in the 
libel. The Manchester, 1 W. Bob. 62. 
But it does not appear, in the report, 
whather the admission was made at the 
time of the occurrence or not. [The dec- 
larations of the master concerning the 
contract of the steamer, are admissil)le in 
a suit against the owners. The Enter- 
prise, 2 Curtis, C. C. 317.] Tlie question 
has been discussed, whether there is any 
'substantial distinction between a written 
entry and an oral declaration by an agent, 
of the tact of liis having receivetl a par- 
ticular rent for liis employer. The case 
was one of a sub-agent, employed by a 
steward to collect rents, and the declara- 
tion ottered in evidence was, " M. N. paid 
nie the half-year's rent, and here it is." 
Its admis.'«ibility was argued, both as a 
declaration against interest, ami also as 
made in tlie course of discliarging a duty ; 
and the court inclined to admit it, but 
took time for advisement. Fursdon v. 
Clogg, 10 M. & W. 572; infm, § 149. 
See also Regina r. Hall, 8 C'. & P. 358; 
Allen V. Denstone, Id. 76(t; Lawrence v. 
Thatcher, 6 C. & B. 669 ; Bank of INIunroe 



V. Field, 2 Hill, R. 445; Doe v. Hawkins, 

2 Ad. & El. 212, N. s. Whether the dec- 
laration or admission of the agent made 
in regard to a transaction already ])ast, 
but while his agency for similar objects 
still continues, will bind the ])rincipal,does 
not appear to have been expressly de- 
cided ; but the weight of authority is in 
the negative. See the observations of 
Tindal, C. J., in Garth v. Howard, sK/tra. 
See also Mortimer v. McCallan, 6 M. & 
W. 58, 69, 73 ; Haven v. Brown, 7 Greenl. 
421, 424; Thalhimer v. Brinkerhoff, 4 
Wend. 394 ; City Bank of lialtimore v. 
Bateman, 7 liar. & Johns. 104 ; v^tewart- 
son r. Watts, 8 Watts, 392; Betham v. 
Benson, Gow. R. 45, 48, n. ; Baring v. 
Clark, 19 Pick. 220 ; Parker v. Green, 8 
Met. 142, 143 ; Plumer v. Briscoe, 12 Jur. 
351; 11 Ad. & El. 46, n. s. [Hurnham v. 
Ellis, 39 Maine, 319]. Where the fraudu- 
lent representations of the vendor are set 
nj) in (lefence of an action for the i)rice of 
land, the defence may be maintained by 
jtroof of such representations by the ven- 
dor's agent who effected the sale ; but it 
is not competent to inquire as to his 
motives or inducements for making them. 
Hammatt r. Emerson, 14 Shepl. 308. 

•* Kevnolils v. Rowlev. 3 Rob. Louis. 
R. 201 ;' Stiles v. The Western Railroad 
Co. 8 Met. 44. [The declarations of a son 
while em])]o3'eil in ijcrfonning a contract 
for his services, made by him as agi-iit for 
his father, are not admissible in evidence 
to prove the terms of the contract. Cor- 
bin V. Adams, 6 Cush. 93. See Print up 
V. Mitchell, 17 Geo. 558; Covington, &e. 
R. R. Co. r. Ingles, 15 B. Mon. 637; 
Tuttio r. Brown, 4 Gray, 457, 460. | 

* [* Lul)y V. The Hudson River Rail- 
road Co., 17 New York Ct. App. 131. 
But in Insurance Company v. Woodruff, 



CHAP. V,] HEARS-AY. 135 

§ 114. It is to be observed, that tlic rule admitting the dechira- 
tions of tlw agciit'is founded upon the legal identity of the agent 
and the principal ; and therefore they bind only so far as there is 
authority to make them.^^ Where this authority is derived by 
implication from authority to do a certain act, the declarations of 
the agent, to be admissible, must be part of the res gestceP- An 
authority to make an admission is not necessarily to be implied 
from an authority previously given in respect to the thing to which 
the admission relates.^ Thus it has been held,^ that the declara- 
tions of the bailee of a bond, intrusted to him by the defendant, 
were not admissible in proof of the execution of the bond by the 
bailor, nor of any other agreements between the plaintiff and 
defendant respecthig the subject. The res gestce consisted in the 
fact of the bailment, and its nature ; and on these points only 
were the declarations of the agent identified with those of the 
principal. As to any other facts in the knowledge of the agent, 
he must be called to testify, like any other witness.^ 

[* § 114(X. Considerable nicety of discrimination will be found in 
some of the cases, in regard to the extent to which public corporate 
companies, engaged in the transportation of freight and pa^sseiigers, 
are responsible for the declarations and admissions of their agents 
and employees, through whose instrumentality their whole business 
is transacted. In general, such companies are not responsible^r 
the declarations or admissions of any of their servants beyond the 
immediate sphere of their agency, and during the transaction of 

2 Dutcher, 541, it was held, two judtres meant that such declarations are ,evidea£C.„ 

dissenting, that the declarations and ud- only wliere they rehite to the identical 

missions of the company's agent, author- contract that is the matter in controversy, 

ized to receive iiremimns and deliver Dome v. Soutlnvork Man. Co. 11 Cush. 

policies, respecting the delivery of a pol- 205; Fogg v. Cliild, lo Barb. 246. | 
icy, are admissible, and bind the company » Phil. & Am. on Evid. 402. As to thel 

in an action upon the policy, although evidence of authority inferred from cir-l 

made after the loss. But this" case is cer- cumstances, see Story on Agency, § 87-|- 

tainly not maintainable upon general 106, 259, 2(30. | 

principles.] , * Fairlie v. Hastings, 10 Ves. 123. 

1 [Thus where the cashier of a bank, ^ Masters v. Abraliam, 1 Esp. 375 
being inquired of by the surety upon a (Day's ed.), and note (1); Story on 
note, said, that the note had been paid. Agency, § 135-143; Johnston r. Ward, 
and thereupon the suretv released prop- 6 Esp. 47. [But the declarations of a 
ertv which he held to indenmify himself professed agent, however publicly made, 
for'anv liability on the note, when in fact and although accompanied by acts, as by 
the note had not been paid, it was held an actual signature of the name of the 
that these statements of the cashier were jirincipal, are not competent evidence in 
not within his authority, and were inad- favor of third jiersons to i^rove the anthor- 
missible against the bank. Bank v. Stew- ity of the agent, when questioned by the 
ard, 37 iNlaine, 519. See also Rmik v. iirincipal. Mussey r. Beecher, 3 Cush. 
Ten Evck, 4 Zabr. 756.] 517; Brigham r. Peters, 1 Gray, 14o; 

2 [By being part of the res g estcB, is Trustees, &c. v. Bledsoe, 5 Ind. 133.] 



13G LAW OF EVIDENCE. ' [PART II. 

the business in -svhicli tlicy are emp loyed . Thus the clcdara- 
tions oif'tlnrcoiiductor of aYaTIway train, as to the mode in wliich 
an accident occurred, made after its occurrence ; ^ or those of an 
engineer, made under similar circumstances, ^ are not admissible. 
But it has sometimes been held, in such cases, that the admis- 
sions of the president of the company, or of its general agent, 
miiiht be received without regard to their forming part of any 
])artieular act of agency ; it being assumed that all his declara- 
tions about the business of the company came within the range 
of his agency ,2 l)ut this seems questionable. But in an action 
against a railway comi)any, for the loss of baggage, the declara- 
tions of the baggage-master, conductor, or station agent, as to the 
manner of the loss, made in answer to inquiries on behalf of the 
owner, the next morning after the loss, were held admissible, and 
as coming witliin the scope of tlie agency and during its continu- 
ance.*] 

§ 115. It is upon the same ground that certain entries, made hy 
third persons, are treated as original evidence. Entries l)y third 
persons are divisible into two classes : first, those which are made 
in the discharge of official duty, and in the course of professional 
employment ; and, secondly, mere private entries. Of these latter 
we shall hereafter speak. In regard to the former class, the entry, 
to bo admissible, must be one which it was the person's duty to 
make, or which belonged to the transaction as part thereof, or 
which was its usual and proper concomitant.^ It must speak only 
to that which it was his duty or business to do ; and not to extra- 
neous and foreign circumstances.^ The party making it must also 
have had com])etent knowledge of the fact, or it must have been 
part of his duty to have known it ; there must have been no par- 
ticular motive to enter that transaction falsely, more than any 

1 [* Griffin v. Montgomery, &c., R. E. 1B2. [The book of minutes of a railroad 

Co., *26 (ieo. K. 111. comi)any are admissible to prove what 

^' l\()bin.son v. Fitchburgh R. R. Co., 7 took jilacc at a meeting of the stockholders 

Gray, '-Vl. of tiic company. Black v. Lamb, 1 Beas- 

3 Charleston, &c. R. R. Co. t;. Blake, ley, 108.] 
12 Rich. Law, (liU. '' Chambers v. Bernasconi, 1 C. & J. 

* M()r>e V. Couji. River R. R. Co., 6 451 ; 1 Tyrwh. 355, s. c. ; 1 Cr. Mees. & 

Gray, 4-jl).l R. 347, s. c. In error. This limitation 

s'Thf doctrine on the subject of con- has not been applied to private entries 
temporancons entries is briefly but lucid!}' ngainst the interest of the party. Thus, 
exj)oimded by Mr. Justice I'iirke, in Doe where the jiayee of a note agahist A., B., 
d. rattcshall c Turford, 3 B. & Ad. H"JO. & t'., indorsed a partial payment as re- 
See also Poole v. Dicas, 1 Bing. n. c. ceived from B., adding that the whole 
654 ; Bickering '-. Bp. of Ely, "2 Y. & C. sum was originally advanced to A. only ; 
241i; Begina v. Worth, 4 Ad. & El. n. s. in an action hy B. against A., to recover 



CHAP, v.] HEARSAY. 137 

other ; and the entry must have been made at or about the time 
of tlie transaction recorded. In such cases, the entry itself is ad- 
mitted as original evidence, being part of the res gestce. The gen- 
eral interest of the party, in making the entry, to show that he has 
done his official duty, has nothing to do with the question of its 
admissibility ; ^ nor is it material whether he was or was not com- 
petent to testify personally in the casc.^ If he is living, and 
competent to testify, it is deemed necessary to produce him.'^ But 
if he is called as a witness to the fact, the entry of it is not thereby 
excluded. It is still an independent and original circumstance, to 
be weighed with others ; whether it goes to corroborate or to im- 
peach the testimony of the witness who made it. If the party who 
made the entry is dead, or, being called, has no recollection of the 
transaction, but testifies to his uniform practice to make all his 
entries truly, and at the time of each transaction, and has no 
doubt of the accuracy of the one in question ; the entry, unim- 
peached, is considered sufficient, as original evidence, and not 
hearsay, to establish the fact in question.^ 
y § 116. One of the earliest reported cases, illustrative of this sub- 
ject, was an action of assumpsit, for beer sold and delivered, the 
plaintiff l^eing a brewer. The evidence given to charge the de- 
fendant was, that, in the usual course of the plaintiff's business, 
the draymen came every night to the clerk of the brewhouse, and 
gave him an account of the beer delivered during the day, which 
he entered in a book kept for that purpose, to which the draymen 

the money thus paid for his use, the in- And see Doe v. Wittcomb, 15 Jur. 778. 

dorsement made by the payee, who was [* But if the entry was not in the course 

dead, was held admissible to prove not of the duty of the person, and not against 

only the payment of the money, but the his interest, it is not receivable. Webster 

other fact a"s to the advancement to A. v. Webster, 1 F. & F. 401.] 
Davies v. Humplirevs, 6 Mees. & Welsh. '^ Gleadow v. Atkin, 1 Cromp. & Mees. 

153; Marks v. Lahe"e, 3 Bing. n. c. 408. 423, 424; 3 Tyrw. 302, 303, s. c. ; Short 

JAnd' in a subsequent case it was held, i>. Lee, 2 Jac. & Walk. 489. 
that where an entry is admitted as being ^ Nichols v. Webb, 8 Wheat. 326; 

against the interest of the party making Welch v. Barrett, 15 Mass. 880; Wilbur 

it" it carries with it the whole statement; v. Seldeu, 6 Cowen, 162; Farmers Bank 

[but that if the entry is made merely in the v. Whitehill, 16 S. & K 89, 90; Stokes 

[course of a man's duty, then it dOes not v. Stokes, 6 Martin, n. s. 351; Herring v. 

go beyond those matters which it was his Levy, 4 Martin, n.^ s^?83 ; Brewster v. 

[duty to enter. Percival v. Nanson, 7 Eng. Doan, 2 Hill, N. Y. Kep. 537 ; Davis v. 

Law & Eq. Rep. 538; 21 Law J. Rep. Fuller, 12 Verm. 178. 
Exch. 1, N. s. ; 7 Kxch. Rep. 1, s. c. •* Bank of Monroe v. Culver, 2 Hill, 

1 Per Tindal, C. J., in Poole v. l^icas, 531 ; Now Haven County Bank v. Mitch- 

1 Bing. X. c. 654; Dixon v. Cooper, 3 ell, 15 Conn. R. 206; Bank of Tennessee 

Wils. 40 ; Benjamin v. Porteous. 2 H. Bl. v. Cowen, 7 Humph. 70. See infra, §§ 

590; Williams y. Geaves, 8 C. &P. 592; 436, 437, note (4). [The protest of a 

Augusta V. Windsor, 1 Appleton, R. 317. notary-pubhc, authenticated in the usual 

12* 



LAW OF EVIDENCE. 



[part II. 



set their hands ; and this entry, with proof of the drayman's hand- 
writin"-, and of his death, was held sufficient to maintain the action. ^ 
lu another case,^ before Lord Kenyon, which was an action of tro- 
ver for a watch, where the question was, whether the deH-'udant 
had deUvcrcd it to a third person, as the phiintiff had directed ; 
an entry of the fact by the defendant himself in his shop-book, 
kept for that purpose, with proof that such was the usual mode, 
was held admissible in evidence. One of the shopmen had sworn 
to the delivery, and his entry was offered to corroborate his testi- 
mony ; but it was admitted as competent original evidence in the 
cause. So, in another case, where the question was upon the pre- 
cise day of a person's birth, the account-book of the surgeon who 
attended liis mother on that occasion, and in wdiich his profes- 
sional services and fees were charged, was held admissible, in proof 
of the day of the birth.^ So where the question was, whether a 
notice to quit had been served upon the tenant, the indorsement 
of service upon a copy of the notice by the attorney who served 
it, it being shown to be the course of business in his office to pre- 
serve copies of such notices, and to indorse the service thereon, 
was held admissible in proof of the fact of service.-^ Upon the 



^e^ 



■way by his sij^nature and official seal, 
found among his pajjers after his deatli, is 
good sccoiulari/ evidence. Porter v. Jiid- 

/•son, 1 Gray, 175.] But upon a question 
of the infancy of a Jew, where the time 
of his circumcision, whicli by custom is 
on tlie eij^lilli day after his birth, was pro- 
posed to be sliowii by an entry of the 
fact, made by a deceased Kabbi, whose 
duty it was to perform the office and to 
make the entry ; the entry was held not 
receivable. Davis v. Lloyd, 1 Car. & Kir. 
275. Perhaps because it was not made 
against tiie j)ecuniary interest of tlie 

^iabbi. See infra, § 1-47. [* The ques- 
tion involved in the preceding section is 
considerably discussed by a learned writer, 
and tlie cases carefully reviewed in a lead- 
ing article, o Law Heg., n. .s. 641. J 

1 Price )'. Lord Torrington, 1 Salk. 
285 ; 2 Ld. Raym. 873, s. c. ; 1 Smith's 
Leading Cases, 139. But the courts are 
not disposed to carry the doctrine of this 
case any farther. 11 M. & W. 775, 776. 
Therefore, where tlie coals sold at a mine 
were re|)orted daily by one of the work- 
men to the foreman, who, not being able 
to write, emi)l<)yed another person to en- 
ter the sales in a book ; it was held, the 
foreman and the workman who reported 
the sale, both being dead, that the book 



was not admissible in evidence, in an ac- 
tion for the price of the coals. Brain v. 
Preece, 11 M. & W. 773; [* Lewis v. 
Kramer, 3 Md. 265.] 

- Digby V. Stedman, 1 Esp. 328. 

3 Iligham v. Kidgway, 10 East, 109. 
See also 2 Smith's Leading Cases, 183- 
197, note, and the connnents of Bayley, 
B., and of Vaughan, B., on this case, in 
Gleadow v. Atkin, 1 Cromp. & Mees. 410, 
423, 424, 427, and of Professor Parke, in 
the London Legal Observer for June, 1832, 
}). 22'J. It will be seen, in that case, that 
the fact of the surgeon's performance of 
the service charged was abundantly proved 
by other testimony in the cause ; and that 
notiiing remained but to ])rove the precise 
time of performance; a fact in which the 
surgeon bad no sort of interest. But if it 
were not so, it is not ]iercei\ed what dif- 
ference it could have made, the princi|)le 
of admissibility being tiie contemporane- 
ous character of the entry, as ])art of the 
res (jesUc. See also Herbert v. Tuckal, T. 
Kaym 84 ; Augusta v. Windsor, 1 Apple- 
ton, K. 317. 

■» Doe u. Turford, 3 Barn. & Ad. 890; 
Champneys v. Peck, 1 Stark. R. 326 ; Rex 
V. Cope, 7 C. &P. 720. [Where such an. 
indorsement of service had been admitted 
to prove the fact of service of notice, the 



CHAP, v.] 



HEARSAY. 



139 



same ground of the contcmporancoos character of an entry made 
in the ordinary course of business, the books of the messenger of 
a bank, and of a notary-public, to prove a demand of payment 
from the maker, and notice to the indorser of a promissory note, 
have also been held admissible.^ The letter-book of a merchant, 
party in the cause, is also admitted as primd facie evidence of the 
contents of a letter addressed by him to the other party, after no- 
tice to such party to produce the original ; it being the habit of 
merchants to keep such a book.^ And, generally, contcmporan-/ 
eous entries, made by third persons, in their own books, in the 
ordinary course of business, the matter being within the peculiar 
knowledge of the party making the entry, and there being no ap- 
parent and particular motive to pervert the fact, are received as 
original evidence ; ^ though the person who made the entry has 
no recollection of the fact at the time of testifying ; provided he 
swears that he should not have made it, if it were not true.* The 
same principle has also been applied to receipts, and other acts 
contemporaneous with the payment, or fact attested.^ 

§ 117. The admission of the party's own shop-books, in proof of 



person who made tlie service and the in- 
dorsement bein^ dead, parol dechirations 
of his, coutradictinw the indorsement, 
were held inadmissible. Stapylton v. 
Clougli, 22 Eno-. Law & Eq. R. 275.] 

1 Nichols V. Webb, 8 Wheat. 326 ; 
Welch V. Barrett, 15 Mass. R. 380 ; Poole 
V. Uicas, 1 Bing. n. c. 649 ; Halliday v. 
Martinett, 20 Johns. 1G8; Butler t;. Wright, 
2 Wend. 36U; Hart v. Williams, Id. 513; 
Nichols y. Goldsmith, 7 Wend. 160 ; New 
Haven Co. Bank v. Mitchell, 15 Conn. 
206 ; Sheldon v. Benham, 4 Hill, N. Y. 
R. 123. [In an action against an infant 
for money jiaid by the plaintiti' to a tlnrd 
person at the infant's reipiest, for articles 
fm-nished the infant by such third jierson, 
the defence of infancy being set up, the 
hooks of account and the testimony of such 
third person are aifmissible to show that 
the articles furnished the infant were nec- 
essaries. Swift V. Bennett, 10 Cush. 436, 
43y.] 

- Pritt V. Fairclough, 8 Campb. 305; 

, Hagedoin v. Reid, Id. 377. The letter- 
book is also evidence that the letters cop- 
ied into it have been sent. But it is not 
evidence of any other letters in it, than 
those which the adverse jiarty has been re- 
quired to produce. Sturge v. Buclianan, 
2 P. & D. 573 ; 10- Ad. & El. 508, s. c. 

* 3 Doe V. Turford, 3 B. & Ad. 890, jwr 
Parke, J. ; Doe v. Robson, 15 East, 32 ; 



Goss V. Watlington, 3 Br. & B. 132 ; Mid- 
dleton V. IMelton, 10 B. & Cr. 317 : Marks 
V. Lahee, 3 Bing. n. c. 408, 420, per 
Pai'ke, J. ; Poole v. Dicas, 1 Bing. n. c. 
649, 653, 654 ; Dow v. Sawyer, 16 Shepl. 
117. In Doe v.Vowles, 1 M. & Rob. 216, the 
tradesman's bill, which was rejected, was 
not contemporaneous with the fact done. 
Haddow v. Parrv, 3 Taunt. 303 ; Whitnash 
V. George, 8 B. & Cr. 5-56 ; Barker v. Ray, 
2 Russ."63, 76 ; Patton v. Crais:, 7 S. & R. 
116, 126; Farmers Bank v. Whitehill, 16 
8. & R. 89 ; Nourse r. McCav, 2 Rawle, 70 ; 
Clark V. Magruder, 2 II. & J. 77; Richard- 
son V. Carv, 2 Rand. 87 ; Clark v. Wilmot, 
1 Y. & Col. N. s. 53. 

* Bunker v. Shed, 8 Met. 150. 

^ Sherman r. Crosby, 11 Johns. 70; 
Holladay v. Littlepage', 2 Munf 316; 
Prather t'. Johnson, 3 II. & J. 487; Sher- 
man V. Atkins, 4 Pick. 283 ; Carroll v. Ty- 
ler, 2 II. & G. 54; Cluggage r. Swan, 4 
Binn. 150, 154. But the letter of a third 
person, acknowledging the receipt of mer- 
chandise of the plaintiff, was rejected, in 
an action ag.iinst the party, who had rec- 
ommended him as trustworthy, in I-onge- 
necker r. Hyde, (> Binn. 1. ; and the re- 
ceipts of living persons were rejected in 
Warner v. Price, 3 Wend. 397;"Cutbush 
V. Gilbert, 4 S. & R. 551 ; Spargo i\ Brown, 
9 B. & C. 935. See infra, § 120. 



140 



LAW OF EVIDENCE. 



[I'AIIT 11. 



the delivciT of goods therein charged, the entries having been 
made by his clerk, stands upon the same principle which we are 
now considering. The books nnist have been kejit Ibr the purpose ; 
and tlie entries must have been made contemporaneous with the 
delivery of the goods, and \)y the person whose duty it was, f(jr 
the time being, to make them. In such cases the books are ludd 
admissible, as evidence of the delivery of the goods therein charged, 
where the nature of the subject is such as not to render better evi- 
dence attainable.^ 

§ 118. In the United States, this principle has been carried far- 
ther, and extended to entries made by the jyarty himself, in his own 
shop-books.^ Though this evidence has sometimes been said to be 



1 ritnian v. Maddox, 2 Salk. G'lO ; Ld. 
Eaym. l'6'l, s." c. ; Letebure v. Worden, 2 
Vc'S. 54, 55 ; Glynn v. The Bank of Eng- 
land, Id. 40 ; Sterret v. Bull, 1 Binn. 234. 
See also Tait on Evid. p. 276. An inter- 
val of one day, between the transaction 
and the entry of it in the book, has been 
deemed a valid objection to the admissi- 
bility of the book in evidence. Walter v. 
BoUnian, 8 Watts, 544. But the law fixes 
no precise rule as to the nionicnt when the 
entry ought to be made. It is enough if 
it be made " at or near the time of the 
transaction." Curren v. Oawford, 4 8. & 
R. o, 5. Therefore, where the goods w^ere 
delivered by a servant during the day, 
and the entries were made by the master 
at night, or on the following morning, 
from the memorauduins made by the ser- 
vant, it was held sullicient. Ingraham r. 
Bockius '.I S. & K. 285. But such entries, 
made later than the succeeding day, have 
been rejected. Cook r. Ashmead, 2 Miles, 
R. 2tJ8. Wlicre daily memoranda were kept 
by workmen, but the entries were made by 
the employer sometimes on the day, some- 
times every two or three days, and one 
or two at longer intervals, they were admit- 
ted. Morris v. Briggs, 3 Cush. 342. jSee 
also Barker r. IlaskeU, 9 Cush. 218 ; Hall 
r. (jlidden, 3'.t Maine, 445. But see Kent 
V. Garvin, 1 (jray, 148.] Whether entries 
transcriijed from a slate, or card, into the 
book, are to tie deemed original entries, is 
not universally agreed. In Mussrirliiiscttf!, 
they aro admitted. Faxon v. Ilollis, 13 
Mass. 427 ; [Smith v. Sanford 12 I'ick. 
13'.J ; Barker r. Haskell, 9 Cush. 218.] In 
Pcnttsi/lcaiiid. they were rejected, in Ogden 
V. Miller, 1 Browne, 147 ; but have since 
been admitted, where they were trans- 
cribed forthwith into the book ; Ingraham 
V. Hockius, '.) S. & R. 285 ; Patton v. Hyan, 
4 Rawle, 408 ; Jones v. Long, 3 Watts, 



325; and not later, in the case of a me- 
chanic's charges for his work, than the 
evening of the second day. Hartly v. 
Brooks, 6 Whart. 189. But where sever- 
al intermediate days elajtsed betbre they 
were thus transcribed, tlie entries have 
been rejected. Forsythe i'. Norcross, 5 
Watts, 432. But see Koch v. Howell, 6 
Watts & 8erg. 350. [Such entries are not 
written contracts, but the private memo- 
randa of the party, becoming, with the aid 
of his sujipletory oath, under an exce])tion 
to the general rules, competent evi(lence 
of sale and delivery. Although compe- 
tent and strong evidence as attecting the 
party offering them, yet they arc not con- 
clusive, but may be explained, and, as it 
would seem, may be shown to have been 
erroneous, 'i'hus, in an action for goods 
sold and delivered, if the ])laintilf', to prove 
his case, jiroduces his books of account, in 
which the goods are charged to « third 
person ; he may then be jiermitted to 
show by parol, that the goods were not 
sold to such third person, but were sold to 
the defeiulaut, and were charged to such 
person at the defendant's re([uest. James 
V. Spaulding, 4 Gray, 451.] [*It seems 
to have been questioned whether the 
docket, or book of accounts, kejit by an 
attorney is competent evidence, in itself, 
of his right to recover for his services. 
Hale's Ex'rs i\ Ard's Kx'rs, 12 Wright, 

Penn. St. ; Briggs r. Georgia, 15 Vt. 

Rep. 61. And the party's cash-book of 
entries of money paid and received is not 
ailmissible as evidence of a iiarticular ]iay- 
ment. Maine v. Harper, 4 Allen, 115. | 

■^ In the following states the admission 
of the j)arty's own books, and his own en- 
tries, has been either expressly permitted, 
or recognized and regulateil by statute ; 
namely, Vermont (1 Tolman's Dig. 185) ; 
Connecticut (Rev. Code, 1849, tit. 1, § 216) ; 



CHAP, v.] 



HEARSAY. 



141 



adiiiittcd contrary to the rules of the common law, yet in general 
its admission will be found in perfect harmony with those rules, 
the entry being admitted only where it was evidently contempora- 
neous with the fact, and part of the res gestce. Being the act of 
the party himself, it is received with greater caution ; but still it 
may be seen and weighed by the jury.^ 



Dehwarc (St. 25 Goo. II., TJov. Code, 1829, 
p. 8U) ; J\f(in/I(nul, as to sums under ten 
pounds in a vear(l Dorsey's Laws of Ma- 
ryland. 73, 203) ; Vlir/inia (Stat. 1819, 1 
Kev. Code, cli. 128, §^'7, 8, 9) ; North Car- 
olina (Stat. 1756, eh. 57, § 2, 1 Rev. Code, 
1836, cli. 15); South Carolina (St. 1721, 
Sept. 20. See Statutes at Large, vol. 3, 
p. 799, Cooper's edit. 1 Bay, 43) ; Tennessee 
(Statutes of Tennessee, by Carruthers and 
Nicliolsoii, p. 131). In Louisiana and in 
Rlarjilaiid (execpt as above), entries made 
by the j)arty hini.self are not admitted. 
Civil Code of Louisiana, Arts. 2244, 2245 ; 
Johnson v. Ureedlove, 2 Martin, n. s. 508; 
Herring v. Levy, 4 .Martin, n. s. 383 ; Cav- 
elier v. Collins, 3 Martin, 188 ; Martinstein 
V. Creditors, 8 Rob. 6 ; Owings i'. Hender- 
son, 5 Gill & Johns. 124, 142^ In all the 
other states the}' are admitted at common 
law, under various degrees of restrictjpn. 
See Coggswell v. Doiliver, 2 Mass. 217; 
Poultney v. Ross, 1 Dall. 239 ; Lj-nch v. 
McHugo, 1 Bav, 33 ; Poster v. Sinkler, Id. 
40 ; Slade r. Teasdale, 2 Bay, 173 ; Liuiib 
V. Hart, Id. 3Ci2 ; Thomas r., Dyott, 1 Nott 
& McC. 18G ; Burnham v. Adams, 5 Verm. 
313 ; Story on Confl. of Laws, 526, 527. 

1 The rules of the several states in re- 
gard to the admission of this evidence are 
not perfectly uniform ; but in what is 
about to be stated, it is believed that they 
concur. Before the books of the party 
can be admitted in evidence, they are to 
be submitted to the inspection of the 
court, and if they do not appear to be a 
register of the daily business of the party, 
and to have been honestly anil fiiirly kept, 
they are excluded. If they appear niani- 
lestly erased and altered, in a material 
part, they will not be admitted imtil the 
alteration is explained. Churchman v. 
Smith, 6 Whart. 106. The form of keep- 
ing tliem, whether it be that of a journal 
or ledger, does not atlect their admissibil- 
ity, however it may go to their credit to 
the jury. Coggswell v. Doiliver, 2 Mass. 
217; Prince v. Smith, 4 Mass. 455, 457; 
Faxon v. Hollis, 13 Mass. 427 ; Rodnuvn 
V. Hoops, 1 Dall. 85; Lvnch v. Mcllugo, 
1 Bay, 33 ; Foster v. 'Sinkler, Id. -io ; 
Slade V. Teas<lale, 2 Bay, 173; Thomas v. 
Dyott, 1 Nott & McC. 186 ; Wilson v. 
Wilson, 1 Halst. 95; Swing v. Sjjarks, 2 



Halst. 59 ; Jones ?'. DeKay, Pennington, 
R. 695 ; Cole v. Anderson, 3 Halst. 68 ; 
Mathes v. Robinson, 8 Met. 269. [Nor 
can the entries be invalidated by proof 
that sek'eral j'ears previous to the date of 
the entries the party making the entries 
had kept tw<j books of original entries, in 
which he chargeil the same articles at dif- 
ferent prices. Gardner v. AVay, 8 Gray, 
189.] If the books appear free from 
fraudulent practices, and proper to be laid 
before the jury, the party himself is then 
required to make oath, in open court, 
that they are the books in which the 
accounts of his ordinary business transac- 
tions are usually kept; Frve v. Barker. 2 
Pick. 65 ; Taylor v. Tucker, 1 Kelly, R. 
233 ; and that the goods therein charged 
were actually sold and delivered to, and 
the services actually performed for the 
defendant. Dwinel v. I'ottle, 1 Redingt. 
1G7. [And where goods are delivered by 
one partner and the entries are made by 
anotlier, each partner may testify to his 
part of the transaction, and the entries 
mav then be admitted. Ilarwood r. 
Mulry, 8 Gray, 250.] An affidavit to an 
account, or bill of particularsV'is 'not au- 
missible. Wagoner v. Richmond, Wright,' 
Ik. 173; unless made so by statute. 
Whether, if the party is abroad, or is un- 
able to attend, the court will take his oath 
under a commission, is not perfectly clea'r. 
Tiie opinion of Parker, C. .!., in 2 Pick. 
67, was against it ; and so is Nicliolson v. 
Withers, 2 McCord, 428 ; but in Spence v. 
Saunders, 1 I'ay, 119, even his attidavit 
was deemed suUicient, ujjon a writ of in- 
quiry, the defendant having suffered judg- 
ment by default. See also Douglas r. 
Hart, 4 McCord, 257 ; Furman v. I'eay, 2 
Bail. 394. He must also swear that the 
articles therein charged were actually de- 
livered, and the labor and services actually 
perforiueil ; that the entries were made at 
or about the time of the transactions, and 
are the original entj-ies thereof; and that 
the sums charged and claimed have not 
been paid. 3 Dane's Abr. ch. 81, art. 4, 
§§ 1, 2; Coggswell v. Doiliver, 2 Mass. 
217 ; Ives v. Niles, 5 Watts, 324. If the 
party is dead, his books, though rendered 
of much less weight as evidence, may still 
be offered by the executor or administra- 



142 



LAW OF EVIDEN'CE. 



[part II. 



§ 110. But, if the Aiueiicau rule of admittiug the party's own 
entries in evidence for him, under the limitations mentioned be- 



tor, lie inakintT oath tliaf they came to his 
liaiuls as the •Genuine and only books of 
account of tlie deccaseil ; that, to tlie best 
of liis knowlediie and behef, the entries 
are ont^inal and contemi)oran(*ons with 
the fact, and the debt unpaid ; witii jiroof 
of the party's iiandwritinj,'. Benlley v. 
JloUcnback,^ Wright, K. lU'J ; JMcLeUan 
I'. Crofton, () Greeni. 307 ; Prince r. Smith, 
4 Mass. 455 ; Odeli v. Culbert, 'J \V. & S. 
(jt). if tlie party has since become in- 
sane, the book may still be admitted in 
evidence, on proof of tlie fact, and that 
tlie entries are in his handwritinuc, with the 
sniijiletory oatii of his guardian. And 
whether Uie degree of insanity, in the 
particular case, is such as to justify the 
admi^sion of the book, is to be determined 
by tiie judge, in his discretion. Ilolbrook 
V. Gay, t) Cush. 215. The book itself 
must be the registry of business actually 
done, and not of orders, executory con- 
tracts, and things to be done subsequent 
to the entry. Fairchild v. Dennison, 4 
Watts, 258 ; Wilson v. Wilson, 1 Halst. 
96; Bradley v. Goodyear, 1 Day, 104, 
10b ; Terrill v. Beecher, 9 Conn. 344, 348, 
349 ; and the entry must have been made 
tor the purpose of charging the debtor 
with the delit; a mere memorandum, tor 
any other purpose not being sutHcient. 
Thus, an invoice-book, and the memoran- 
dums in the margin of a blank check-book, 
showing the dale and tenor of the checks 
drawn and cut from the book, have been 
reiected. C-'ooper v. Moriell, 4 Yates, 
341 ; Wilson v. (Joodin, Wright, Kep. 219. 
But the time-book of a day-laliorer, tiiough 
kept in a tabular form, is admissible ; the 
entries being made for the apparent pur- 
pose of cliarging the person for whom the 
work was done. Mathes v. Hobinsoii, 8 
Met. 21)9. [In an action by a laborer 
against his employer, the time-book of the 
enn)loyer, kept in' a tabular form, in which 
the days the plaintilf worked are set 
down, is not admissible in evidence with 
the deteiidaiit's jsum)l etor ;/ oath, to show 
that the i)l;iintitr diTrhotwork on certain 
days ; it being a book of credits and not 
of 'charges, aiul it not being competent to 
show that the i)laintiff did not work on 
certain days by the defendant's omission 
to give credit' for work on those days. 
Morse v. Potter, 4 Gray, 292.J If the 
bo(»k contains marks, or there be other 
evidence ^bowing that the items have 
been transferred to a journal or ledger, 
these books also nmst be produced. Prince 
V. Swett, 2 Mass. 509. The entries, also, 



must be made contemporaneous!}' with 
the fact entered, as has been already 
stated in regard to entries made by a 
clerk. Sii/ira, § 117, and note (1). Kn- 
tries thus made are not however received 
in all cases as satisfactory proof of the 
charges ; but only as proof of things, 
which, from their nature, are not gener- 
ally siLsceptible of better evidence. Watts 
V. Howanl, 7 Met. 478. They are satis- 
factory proof of goods sold and delivered 
from a shop, and of hibor and services 
jiersonally performed. Case v. I'otter, 8 
.Johns, 211 ; Vosburg v. Thayer, 12. Johns. 
201; Wilmer v. Israel, 1 Browne, 257; 
Ducoign 0. Schreppel, 1 Yates, 347; 
Spence v. Saunders, 1 Bay, 119; Charl- 
ton V. Lawry, Martin, N. Car. Kep. 26; 
MitcheU v. Clark, Id. 25; Easby i-. Aiken, 
Cooke, K. 388 ; and, in some states, of 
small sums of money. Coggswell '■. Dol- 
livcr, 2 Mass. 217 ; Prince v. Smith, 4 
Mass. 455 ; 3 Dane's Abr. ch. 81, art. 4, 
§§ 1, 2; Criiven i\ Shaird, 2 Halst. 345. 
[Meals furnished to an employer and his 
servants, from day to day, are a proper 
subject of book-charge. Tremain v. Ed- 
wifrds, 7 Cush. 414.] The amount, in 
Miissachtistlts and Maine, is restricted to 
forty shillings. Dunn v. Whitney, 1 
Fairf 9; Burns v. Fay, 1-i Bick. 8; 
Union Bank v. Knapp, 3 Pick. 109. [Nor 
is the rule chtmged because an auditor, at 
the hearing before him, ex.imincd the 
book, as a voucher for a greater sum. 
Turner v. Twing, 9 Cush. 512. | While 
in Xurth Carolina it is extended to any 
article or articles, the amount whereof 
shall not exceed the sum of sixty dollars. 
Stat. 1837, chap. 15, §§ 1, 5. [In New 
./(i\<ii/ they are inadmissible to prove 
moiiev ]iaid or money lent. luslee v. 
l'rall,'3 Zabr. 457. J But they have been 
refused admission to prove the fact of ad- 
vertising in a newsfiapcr ; Jxichards v. 
Howard, 2 Nott & McC. 474 ; Thomas v. 
Dyott, 1 Nott & McC. 180 : of a charge of 
dockage of a vessel ; Wilmer v. Israel, 1 
Browne, 257 : commissions on the sale of 
a vessel ; Winsor r. Dilloway, 4 Met. 221 : 
[an item in an at^count " seven gold 
watches, §308;" Bustin v. Rogers, 11 
Cush. 340 : to whom creilit was originally 
given, delivery being admitted ; Keith v. 
Kibbe, 10 Cush. 30 : the consideration of 
a promissory note ; Rindge v. Breck, 10 
Cush. 43 ; see also Earle v. Sawyer, 6 
Cush. 142 : three months' service in one 
item ; Ilenshaw v. Davis, 5 Cush. 145 : 
money lost by an agent's negligence ; 



CHAP, v.] 



HEARSAY. 



143 



low, were not in accordance with the princii)lcs of the common 
law, yet it is in conformity with those of other systems of jurispru- 
dence. In the administration of the Roman law, the production 
of a merchant's or tradesman's book of accounts, regularly and 
fairly kept in the usual manner, has been deemed presumptive evi- 
dence Qsemijjlcna prohatlo i) of the justice of his claim ; and, in 



Chase v. Spencer, 1 Williams, 412 : arti- 
cles temporarily borrowed ; Scott ?'. Brig- 
ham, lb. 5G1 : buildiiiR a fence ; Towle v. 
Blake, o7 iNIaine, 2U8 : an}' matter col- 
lateral to the issue of debt and credit 
between the parties ; Batchekler v. San- 
born, 2 Foster, 325 :] labor of servants ; 
Wright V. Sharp, 1 Browne, 84-4 : goods 
delivered to a third person ; Kerr v. Love, 
1 Wash. 172; Tenbrook v. Johnson, Coxe, 
288 ; Townlev v. Woolley, Id. 877 : 
[Webster v. Clark, 10 Foster, 245 :] or to 
the party, if under a previous contract for 
their delivery at tlitlerent periods ; Loner- 
gan r. Whitehead. 10 Watts, 249 : general 
damages, or value ; Swing v. Sparks, 2 
Halst. 59 ; Terrill v. Beecher, U Conn. 
348, 349 ; settlement of accounts ; Brest v. 
Mercereau, 4 Halst. 268 : money paid and 
not applied to the purpose directed ; 
Bradley v. Goodyear, 1 Day, 104 : a spe- 
cial agreement ; Britchard v. McOwen, 1 
Nott & iSIcC. 131, note ; Dunn v. Whit- 
ney, 1 Fairf. 9 ; Green v. Bratt, 11 Conn. 
205 : or a delivery of goods under such 
agreement ; Nickle v. Baldwin, 4 Watts 
& Serg. 290 : an article omitted by mis- 
take in a prior settlement ; Bunderson v. 
Shaw, Kirby, 150 : the use anil occupation 
of real estate, and the like ; Beach v. 
Mills, 5 Conn. 493. i^ee also Newton v. 
Higgins, 2 Verm. 366 ; Dumi v. Whitney, 
1 Fairf. 9. But after the order to dehver 
goods to a third person is proved by com- 
petent evidence uliamh', the delivery itself 
may be proved by tlie books and supple- 
tory oath of the plaintiti", in any case 
where such delivery to the defendant in 
person might be so proved. Mitchell v. 
Belknap, 10 Shepl. 475. The charges, 
moreover, must be specific and particular ; 
a general cha'rge for i)rofcssioiial services, 
or for work and labor by a mechanic, 
without any specificaticm but that of time, 
caimot be supported by this kind of evi- 
• deuce. Lynch v. I'etrie, 1 N'ott & McC. 
130; Hughes v. Hampton, 2 Const. Kep. 
476. Antl regularly the prices ought to 
be specified ; in which case the entry is 
prima. J'ucit evidence of the value. Haga- 
man v. Case, 1 South. 370 ; Uucoign v. 
Schreppel, 1 Yeates, 337. But whatever 
be the nature of the subject, the transac- 



tion, to be susceptible of this kind of 
proof, must have been directly between 
the original debtor and the creditor ; the 
book not being admissible to establish a 
collateral fact. Mifllin v. Bingham, 1 
Dall. 276, per McKean, C. J. ; Kerr v. 
Love, 1 Wash. 172; Deas v. Darby,' 1 
Nott & McC. 436; Poulteney v. Boss, 1 
l3all. 238. Though books, such as have 
been described, are admitted to be given 
in evidence, with the suppletory oath of 
the party, yet his testimony is still to be 
■weighed by the jury, like that of any 
other witness in the cause, and his reputa- 
tion for truth is equally ojien to be ques- 
tioned. Kitchen v. Tvson, 2 Murph. 314 ; 
Elder v. Warfield, 7 'liar. & Johns. 391. 
In some states, the books thus admitted 
are only those of shopkeepers, mechanics, 
and tradesmen ;. those of other persons, 
such as planters, scriveners, schoolmasters, 
&c., being rejected. Geter v. Martin, 2 
Bav, 173 ; Pelzer v. Cranston, 2 McC. 
328; Boyd v. Ladson, 4 McC. 76. The 
subject of the admission of the party's own 
entries, with his suppletory oath, in the 
several American states, is very elabor- 
ately and fully treated in Mr. Wallace^s 
note to the American edition of Smith's 
Leading Cases, vol. 1, p. 142. [Wliere a 
party's books are admitted, their credit 
cannot be impeached by i>roof of the bad 
moral character of the party. Tomlinsoii 
V. Borst, 30 Barb. 42.J [ * It seems to be , 
settled that if the party rely upon the 
credits in his adversary's book, he must 
take such admission in connection with 
counter debits. Biglow v. Sanders, 2^ 
Barb. N. Y. 147. But according to the 
English practice he is not precluded from 
introducing evidence to impeach the 
items ujion the debtor side of the account, 
while he claims the benefit of those upon 
the credit side. Rose v. Savory, 2 Bing. 
N. c. 145. See also Moorehouse v. New- 
ton, 3 De G. & Sm. 307.] 

1 This degree of proof is thus defined 
by Mascardus : " Non est ignorandum, 
probationem semiplenam eam esse, per 
quam rci gestae. /(V/m ali<iua fit judici ; non 
tanien tanta ut "jure deheat in pronuncian- 
da sententia eam sequi." De Brob. vol. 1, 
Qua-st. 11, n. 1, 4. 



144 LAW OF EVIDENCE. [I'AUT II. 

such cases, the supplctoiy oath of the party (^juramentwn mpple- 
tivuiii) was admitted to make up the plena prohat'io uecessary to a 
decree iu his favor.^ By the law of France^ too, the books of mer- 
chants and tradesmen, regularly kept and written from day to day, 
without any blank, when the tradesman has the reputation of 
probity, constitute a semi-proof, and with his suppletory oath are 
received as full proof to establish his demand.^ The same doctrine 
is familiar in the law of Scotland, by which the books of merchants 
and others, kept with a certain reasonable degree of regularity, 
satisfactory to the court, may be received in evidence, the party 
being allowed to give his own oath " in supplement " of such imper- 
fect proof. It seems, however, that a course of dealing, or other 
" pregnant circumstances," must in general ))e first shown by evi- 
dence aliunde, before tlie proof can be regarded as amounting to 
the degree of semiplena probatio, to be rendered complete by the 
oath of the party .^ 

§ 120. Returning now to the admission of entries made by clerks 
and third persons, it may be remarked that in most, if not all the 
reported cases, the clerk or person wlio made the entries was dead; 
and the entries were received upon proof of liis handwriting. But 
it is conceived that the fact of his death is not material to the 
admissibility of this kind of evidence. There are two classes of 

1 " Juramcntum(suppletivuni)tlefcrtur ciorum onlo et usus cvcrtitur. Neqni 
•ubicunque UftDi- habct pro 80 — aliquas cMiiin oiiiiios pra'senti ])Ofiinia iiierces sibi 
conjcctui-as, per quas jiulex imliicatur ad coinparant, iieque cujusqiic rei vemlitioni 
sus|)ifioiuMii vel ad opinaiiduin \n-o parte testes adhiberi, qui pretia niercium nove- 
actoris." Mascardns, I)e I'rob. vol. 3, rint, aut cxpcdit, atit congruum est. Ko 
Concl. 1230, n. 17. Tlie civilians, how- iniquuni videbitur illiid statutum, quo do- 
ever tliey may differ as to the degree of nic^ticis talibus instruinentis ailditiir tides, 
credit to be -i-iveii to books of account, modo aliquibus adininiculis juventur." 
concur in oi)iiii()n that tiiey are entitled to See also Ilertius.'De Collisione Leguni, 
consideration at the discretion of tlie § 4, n. 68; Strykius, toin. 7, l)e Semi- 
judge. Tliev furnisli, at least, the conjcr- plena Probat. ])i,sp. 1, cap. 4, § 5 ; Meno- 
tHra- mentioned by Mascardus ; and their chins, Dc Presump. lil). 2, Presump. 57, n. 
admission in evidence, with the supple- 20, and lib. 3, Presumiv 03, n. 12. 
torvoath of the partv,isthus defended by - 1 Pothier on Obi., Part iv. cli. 1, art. 
Paid Voet, l)e Statntis, § "), cap. 2, n. 'J. 2, § 4. By the Code Najioleon, mercliant's 
"An ut credatur lil)ris rationern, sen reg- books are required to be kefit in a i>articu- 
^ istris uti hxiiiiintur, mcrcatoruni et artiti- lar manner therein pre.-;cril)ed, and none 
eum, licet probaiionibus testium non ju- others are admitted in evidence. Code de 
ventur? Kespondeo, quamvis exem])lo Commerce, Liv. 1, tit. 2. art^ 8-12. 
pernitiosiim esse videatur, quemque sibi ^ Tait on Evidence, p. 273-277. This' 
privata testalione, sive adnotatione fa- degree of proof is there defined as " not 
cere debitorein. (^uia tamcn luce est mer- merely a suspicion, — Init such evidence 
catorum ciira et opera, ut debiti et credit! as produces a reasonable belief, though not 
ratioiies diligeiiter conficiaiit. Ktiain in comiilete evidence." See also Glassford 
eorum foro et causis, ex a>qiio et bono est on Evid. p. 5-JO ; IJell's Digest of Laws of 
jiulicandum. Insuper non admisso aliquo Scotland, pp. 378, 81)8. 
litium accelerandarum reniedio, commer- 



CHAP, v.] HEARSAY. 145 

admissible entries, between wliicli there is a clear distinction, in 
regard to the principle on which they arc received in evidence. 
The one class consists of entries made against the interest of the 
party making them ; and these derive their admissil)ility from this 
circumstance alone. It is, therefore, not material when they were 
made. The testimony of the party who made them would be the 
best evidence of the fact ; but, if he is dead, the entry of the facf 
made by him in the ordinary course of his business, and against 
his interest, is received as secondary evidence in a controversy 
between third persons.^ The other class of entries consists of 
those which constitute parts of a chain or combination of transac- 
tions between the parties, the proof of one raising a presumption 
that another has taken i)lace. Here, the value of the entry, as 
evidence, lies in this, that it was contemporaneous with the principal 
fact done, forming a link in the chain of events, and being part of 
the res gestce. It is not merely the declaration of the party, l)ut it 
is a verbal contemporaneous act, belonging, not necessarily, in- 
deed, but ordinarily and naturally to the princi})al thing. It is on 
this "ground, that this latter class of entries is admitted ; and 
therefore it can make no difference, as to their admissibility, 
whether the party who made them be living or dead, nor whetlier 
he was, or was not, interested in making them ; his interest going 
only to affect the credibility or weight of the evidence when 
received.2 

§ 121. The evidence of indcbtment, afforded by the indorsement 
of the payment of .interest, or ^partial payment of the principal, 
on the back of a bond or other security, seems to fall witliin the 
principle Ave are now considering, more naturally than any other ; 
though it is generally classed with entries made again st th e 
interest_of the party. The main fact to be proved inTlie cases, 
where this evidence has been admitted, was the continued exis- 

1 "Warren v. Greenville, 2 Str. 1129; Einn. IM ; Sherman r. Crosby, 11 Johns. 

MidiUcton v. Melton, 10 B. & C. 317; 70; Holhulay c. Littleimjie, 2'Munf. 31() ; 

Tliomi)son v. Stevens, 2 Nott & McC. I'rather v. Johnston, 3 H. & J. 487 ; Sher- 

493 ; Chase v. Smith, 5 Verm. 556 ; Spi- man r. Akins. 4 Pick. 28.3 ; Carroll v. 'I'y- 

ers r. Morris, 9 Bing. 687; Alston v. Taj- ler, 2 II. & G. 54 ; James v. Wharton, 3 

lor, 1 Ilayw. 381, 395. ' ]\[eLean, 492. In several cases, however, 

- This distinction was taken and clear- letters and receipts of tlnrd persons livinji, 

ly expounded hy Mr. Justice Parke in and within the reach of process, have 

Doe d. Patteshall r. Tin-tord, 3 B. & Ad. been rejected. Lonjjcnecker v. Hyde, 6 

890 ; cited and approved in Poole v. Dicas, Binu. 1 ; Sjiar^o v. Brown, 9 B. & C. 935 ; 

1 Bing. N. 0. 6-'>4; [Stapvlton v. Cloun;h, AVariier c. Price, 3 Wend. 397; Cullmsh 

22 Eng. Law .<: Kq. H. 275.| See also".s»- r. (iillvrt, 4 S. & K. 551; [Heynolds r. 

■pra, %% 115, 116; Cluggage v. Swan, 4 IManning, 15 Met. 510.J 
VOL. I. 13 



146 LAW OF EVIDENCE. [PART H. 

tencc of the debt, notwithstanding the hipse of time since its 
creation was such as either to raise tlie presumption of payment, 
or to bring the case within the operation of the statute of Umita- 
tioiis. Tliis fact was sought to be proved by the acknowledgment 
of the de!)t by the dcljtor liimsclf ; and this acknowledgment was 
l)r()vcd, by his having actually paid part of the money due. It is 
the usual, ordinary, and well-known course of business, that par- 
tial payments are forthwith indorsed on the back of tlie security, 
the indorsement thus becoming part of the res gestce. Wherever, 
therefore, an indorsement is siiown to have been made at the time 
it bears date (which will be inferred from its face, in the absence 
of opposing circumstances),^ the presumption naturally arising is, 
that the money mentioned in it was paid at that time. If the 
date is at a period after the demand became stale, or affected by 
the statute of limitations, the interest of the creditor to fabricate 
it would be so strong, as to countervail the presumption of pay- 
ment, and require the aid of some other proof; and the case 
would be the same, if the indorsement bore a date within that 
peri(jd, the instrument itself being otherwise subject to the bar 
arising from lapse of time.^ Hence the inquiry, which is usually 
made in such cases, namely, whether the indorsement, when 
made, was against t he interest of the party making it, that is, of 
the creditor ; which, in other language^ is only inquiring whether 
it was made while his remedy was not yet impaired by lapse of 
time. The time when the indorsement was made is a fact to be 
settled by the jury ; and to this end the writing must be laid 
before them. If there is no evidence to the contrary, the 
presumption is, that the indorsement was made at the time it 
purports to bear date ; and the burden of proving the date to be 
false lies on the other party .^ If the indorsement does not pur- 
])ort to be made contemporaneously with the receipt of the mOney, 
it is inadmissible, as part of the res gestce. 

§ 122. This doctrine has been very much considered in the 
discussions which have repeatedly been had upon the case of 

1 Smitli V. Battens, 1 M. & I?ob. 341. boom v. Billinuton, 17 Johns. 182; Gibson 

See also Nichols v. Webb, S Wheat. o2G ; v. Peebles, 2 McCord, 418. 

12 S. & U. 4V», 87 ; IG S. & 11. 8'.), Ul. " Per Taunton, J., in Smiths. Battens, 

■■^ Turner )). Crisp, 2 Stra. 827 ; Rose v. 1 M. & Uob. 343. See also Hunt v. Mas- 
Brvant, 2 Campb. 321 ; Glynn v. The sey, 5 B. & Adolph. 'J02 ; Baker v. Mil- 
Bank of En-jland, 2 Ves. 38, 43. See al- burn, 2 Mees. & W. 853 ; Sinelair v. Bat;- 
80 Whitney i;. Bigelow, 4 rick. 110; Rose- galcy, 4 Mees. & W. 312; Anderson v. 

Weston, G Bing. n. c. 2'JG. 



CHAP, v.] HEARSAY. 147 

Searle v. Barrington} In that case, the bond was given in 1697, 
and was not sued until after the death of the obligee, upon whose 
estate administration was granted in 1723. The ()1»Hgor died in 
1710 ; the obligee probably survived him, but it did not appear 
how long. To repel the presumption of payment, arising from 
lapse of time, the plahitiff offered in evidence two indorsements, 
made upon the bond by the obligee himself, bearing date in 1699, 
and in 1707, and purporting that the interest due at those re- 
spective dates had been then paid by the obligor. And it appears 
that other evidence was also offered, showing the time when the 
indorsements'were actually made.^ The indorsements, thus proved 
to have been made at the times when they purported to have been 
made, were, upon solemn argument, held admissible evidence, both 
by the judges in the Exchequer Chamber and by the House of 
Lords. The grounds of these decisions are not stated in any of 
the reports ; but it may be presumed that the reasoning on the \ 
side of the prevailing party was approved, namely, that the in- , 
dorsement being made at the time it purported to bear date, and 
being according to the usual and ordinary course of business in 
such cases, and which it was not for the interest of the obligee at 
that time to make, was entitled to be considered by the jury ; and 
that from it, in the absence of opposing proof, the fact of actual 
payment of the interest might be inferred. This doctrine has 
been recognized and confirmed by subsequent decisions.^ 

1 There were two • successive actions as the result of his own research. See 1 

on the same bond between these parties. Cronip. & Mees. 421. So it was under- 

The first is reported in 2 Stra. 826, 8 Mod. stood to be, and so stated, by Lord Hard- 

278, and 2 Ld. Raym. 1370 ; and was wicke, in 2 Ves. 43. It may liave consti- 

tried before Pratt, C. J., who refused to tuted the " otlier circumstantial evidence," 

admit tlie indorsement, and nonsuited the mentioned in ISIr. Brown's report, 3 Bro. 

plaintiff"; but on a motion to set the nou- P. C. 594; which he literally transcribed 

suit aside, the three other judges were of from the case, as drawn up by Messrs. 

opinion, that the evidence ouijht to have Lutwyche and Fazakerley, of counsel for 

been left to the jury, the indorsement in the original plaintiff, for argument in the 

such cases being according to the usual House of Lords. See a folio volume of 

course of business, and perhaps in this original printed briefs, marked " Cases in 

case made with the privity of the obligor; Parliament, 1728 to 1731," p. 529, in the 

but on another ground the motion was de- Law Library of Harvard IJniversity, in 

nied. Afterwards another action was which this case is stated more at large 

brought, which was tried before Lord than in any book of Reports. By Stat. 9 

Raymond, C. J., who admitted the cvi- Geo. IV. c. 14, it is enacted, that no in- 

dence of the indorsement; but to which dorsement of jiartial payment, made by or 

the defendant filed a bill of exceptions, on behalf of tlie creditor, shall be deemed 

This judgment was affirmed on error in sufficient proof to take the case out of the 

the Exchequer Chamber, and again in the statute of limitations. The same enact- 

House of Lords. See 2 Stra. 827 ; 3 Bro. nient is found in the laws of some of the 

P. C. 593. The first case is most fully re- United States. 
ported in 8 Mod. 278. ^ Bosworth v. Cotchett, Dom. Proc. 

2 This fact was stated by Bayley, B., May 6, 1824 ; Phil. & Am. on Evid. 348 ; 






148 LAW OF EVIDENCE. [PART II. 

§ 123. Thus, Ave have seen that there avefonr classes of declara- 
tions, which, though usually treated under the head of hearsay, 
are in truth original evidence ; the first class consisting of cases 
where the fact, that the declaration was made, and not its truth 
or falsity, is the point in question ; the second, including expressions 
of bodily or mental feelings, where the existence or nature of such 
feelings is the subject of imiuii y ; the third, consisting of cases of 
pedigree, and including the declarations of those nearly related to 
the party whose pedigree is in question ; and the fonrth, embracing 
all other cases where the declaration offered in evidence may be 
regarded as part of the res gestce. All these classes are involved 
in the principle of tlie last ; and have been se])arately treated, 
merely for the sake of greater distinctness. 

§ 124. Subject to these qualifications and seeming exceptions, 
the general ride of law rejects all hearsay reports of transactions, 
whether verbal or written, given by persons not produced as wit- 
nesses.^ The principle of this rule is, that such evidence requires 
credit to be given to a statement, made by a person who is not 
subjected to the ordinary tests, enjoined by the law, for ascertain- 
ing the correctness and completeness of his testimony ; namely, 
that oral festimony shoidd be delivered in the presence of the 
court or a magistrate, under the moral and legal sanctions of an 
oath, and where the moral and intellectual character, the motives 
and deportment of the witness can be examined, and his capacity 
and opjiortunities for observation, and his memory, can be tested 
by a cross-examination. • Such evidence, moreover, as to oral dec- 
larations, is very liable to l)e fallacious, and its value is, therefore, 
greatly lessened by the })robability that the declaration was imper- 
fectly heard, or was misunderstood, or is not accurately remem- 
bered, or has been perverted. It is also to be observed, that the 
persons conununicating such evidence are not exposed to the 
danger of a prosecution for perjury, in which something more 
than the testimony of one witness is necessary, in order to a con- 

Gleadow v. Atkin, 1 Cromp. & Mees. I at the time the .admittcfl payment was 
410; Anderson v. Woston, 6 Bing. n. c. jmade. Hayes v. Morse, 8 Verm. R. 31fi.| 
2JI5 ; 2 Smith's Leadinsj Cases, 197; Ad- ^ " If," says Mr. Justice BuUer, " tiie 

dams V. Seitzinger, 1 Watts & Serg. 2-13. first speccli were witliout oath, another 
( * But the aihnission of a payment at the oath, thnt tliere was sucli spcecli, makes it 
time a note fell lUio. altliougli signed by no more than a bare si)eaking, and so of 
both parlies and indorsed upon the note at no value in a court of justice." Bull. N. 
a period within the statute of limitations P. 2'.i-l ; [Lund i'. Tyngsborough, 9 Cush. 
will not have the eHect to remove the bar, 36, 40.] 
the eH(2ct being the same only as if made 



CHAP, v.] HEARSAY. 149 

viction ; for where the declaration or statement is sworn to have 
been made when no third person was present, or by a person who 
is since dead, it is hardly possible to punish the witness, even if 
his testimony is an entire fabrication.^ To these reasons may be 
added considerations of public interest and convenience for reject- 
ing hearsay evidence. The greatly increased expense, and the 
vexation which the adverse party must incur, in order to rebut or 
explain it, the vast consumption of public time thereby occasioned, 
the multiplication of collateral issues, for decision by the jury, 
and the danger of losing sight of the main question, and of the 
justice of the case, if this sort of proof were admitted, are consid- 
erations of too grave a character to be overlooked by the court or 
the legislature, in determining the question of changing the rule.^ 

§ 125. The rule applies, though the declaration offered in evi- 
dence was made upon oath, and in the course of a judicial proceed- 
ing, if the litigating parties are not the same. Thus, the deposition 
of a pauper, as to the place of his settlement, taken ex imrte before 
a magistrate, was rejected, though the pauper himself had since 
absconded, and was not to be found.^ The rule also applies, not- 
withstanding no better evidence is to be found, and though it is 
certain that, if the declaration offered is rejected, no other evi- 
dence can possibly be obtained ; as, for example, if it purports to 
be the declaration of the only eye-witness of the transaction, and 
he is since dead.* 

§ 126. An exception to this rule has been contended for in the 
admission of the declarations of a deceased attesting, witness to a 
deed or will, in disparagement of the evidence afforded by his 



1 Phil. &Am. onEvid. 217; IPhil. Evid. is otherwise ; evidence on tlie relation of 
205, 206. See, as to the liability of words others being admitted, where the relator 
to misconstruction, the remarks of Mr. is since dead, and would, if living, have 
Justice Foster, in his Discourse on High been a competent witness. And if the re- 
Treason, ch. 1, § 7. The rule excluding lation has been handed down to the wit- 
hearsay is not of great antiquity. One of ness at second-hand, and through several 
the earliest cases in which it was adminis- successive relators, each only stating what 
tered, was that of Sampson v. Yardley he received from an intermediate relator, it 
and Tothill, 2 Keb. 223, pi. 74, 19 Car. 2. is still admissible, if the original and in- 

2 Mima Queen v. Hepburn, 7 Cranch, termediate relators are all dead, and would 
290, 296, per Marshall, C. J. have been competent witnesses if living. 

3 Rex V. Nimeham Courtney, 1 East, Tait on Evid. pp. 430, 431. But the rea- 
873 ; Rex v. Ferry Frystone, 2 East, 54 ; son for receiving hearsay evidence, in 
Rex V. Eriswell, 3 T. R. 707-725, per cases where, as is generally the case in 
Lord Kenyon, C. J., and Grose, J., wliose Scotland, the .judges determine upon the 
opinions are approved and adopted in Mima facts in dispute, as well as upon tlie law. 
Queen v. Hepburn, 7 Cranch, 296. is stated and vindicated bv Sir James 

* Phil. & Am. on Evid. 220, 221 ; 1 Phil. Mansfield, in the Berkley Peerage case, 4 

Evid. 209, 210. In Scotland the rule Campb. 415. 

13* 



150 LAW OF EVIDENCE. [PART II. 

si^-naturc. This exception has been asserted, on two grounds ; 
first, that as the party, ollering the deed, used the declaration of 
the witness, evidenced hy his signature, to prove the execution, 
the other party might well be permitted to use any other declara- 
tion of the same witness, to disprove it; — and secondly, that such 
declaration was in the nature of a substitute for the loss of the 
benefit of a cross-examination of the attesting witness ; by which, 
either the fact confessed would have been proved, or the witness 
might have been contradicted, and his credit impeached. Both 
these grounds were fully considered in a case in the exchequer, 
and were overruled by the court ; the first, because the evidence 
of the handwriting, in the attestation, is not used as a declaration 
by the witness, but is offered merely to show the fact that he put 
his name there, in the manner in which attestations are usually 
placed to genuine signatures ; and the second, chiefly because of 
the mischiefs which would ensue, if the general rule excluding 
hearsay were thus broken in upon. For the security of solemn 
instruments would thereby become much impaired, and the rights 
of parties under them would be liable to be affected at remote 
periods, by loose declarations of the . attesting witnesses, which 
could neither be explained nor contradicted by the testimony of 
the witnesses themselves. In admitting such declarations, too, 
there would be no reciprocity ; for though the party impeaching 
the instrument would thereby have an equivalent for the loss of 
his power of cross-examination of the living witness, the other 
I party would have none for the loss of his power of rc-exammar 
tion.i 

1 Stobart v. Dryden, 1 Mees. & W. 615. 



CHAP. VI.] MATTERS OF GENERAL INTEREST. 151 



CHAPTER VI. 

OF MATTERS OF PUBLIC AND GENERAL INTEREST. 

[ * § 127. Classification of the exceptional cases. 

128. Distinction between public and general interest. 

129. Competent knowledge seems indispensable in witness. 

130. Reputation restricted to ancient matters, and as to persons deceased. 

131. Not admitted after controversy arises. Lis mota defined. 

132. The controversy must be upon the same point. 

133. It will make no difference that the controversy is unknown. 

134. This will not exclude solemn acts declaring legitimacy. 

135. Witness need not state author. Declarations receivable, if person not then 

interested. 

136. His being in similar relation no objection. 

137. The rule does not extend to any but public interests. 

138. Subject further illustrated. 

139. Documentary evidence inter alios is also admissible under the limitations 

already stated. 

140. Reputation is also admitted against claim of public right.] 

§ 127. Having thus illustrated the nature of hearsay evidence, 
and shown the reasons on which it is generally excluded, we are 
now to consider the cases in which this rule has been relaxed, and 
hearsay admitted. The exceptions, thus allowed, will be found 
to embrace most of the points of "inconvenience, resulting from 
a stern and universal application of the rule, and to remove the 
principal objections which have been urged against it. These 
exceptions may be conveniently divided into four classes : — 
fii'st, those relating to matters of public and general interest ; — 
secondly, those relating to ancient possessions ; — thirdly, declara- 
tions against interest; — fourthly, dying declarations, and some 
others of a miscellaneous nature ; and in this order it is proposed 
to consider them. It is, however, to be observed, that these 
exceptions are allowed only on the ground of the absence of better 
evidence, and from the nature and necessity of the case. 

§ 128. And first, as to matters of public and general interest. 
The terms, public and general, are sometimes used as synony- 
mous, meaning merely that which concerns a multitude of per- 



152 LAW OF EVIDENCE. [PART U. 

I sons. ^ But ill regard to the admissibility of hearsay testimony, 
a distinction has been taken between them ; the term, public, 
being strictly applied to that which concerns all the citizens, and 
every member of the State ; and the term, general, being referred 
to a lesser, though still a large portion of the community. In 
matters of public interest, all persons must be presumed con- 
versant, on the principle, tliat individuals arc presumed to be 
conversant in their own affairs ; and, as common rights are 
naturally talked of in the community, what is thus dropped in 
conversation may be presumed to be truc.^ It is the prevailing 
current of assertion that is resorted to as evidence, for it is to 
this that e^■ery member of the community is supposed to be privy, 
and to contribute his share. Evidence of common reputation is, 
therefore, received in regard to public facts (a claim of highway, 
or a right of ferry, for example), on ground somewhat similar to 
that on which public documents, not judicial, are admitted, 
namely, the interest which all have in their truth, and the con- 
sequent probability that they are true.^ In these matters, in 
which all are concerned, reputation from any one appears to be 
receivable ; but of course it is almost worthless, unless it comes 
from persons who are shown to have some means of knowledge, 
such as, in the case of a highway, by living in the neighborhood ; 
but the want of such proof of their connection with the subject 
in question affects tlK3 value only, and not the admissibility of the 
evidence. On the contrary, where the ftict in controversy is one 
in which all the members of the community have not an interest, 
but those only who live in a particidar district, or adventure in 
a particular enterprise, or the like, hearsay from persons wholly 
unconnected with tlic place or business would not only be of no 
value, but altogether inadmissible.^ ^ 

1 Weeks V. Sparke, 1 M. & S. 690, per Eosc. 929, per Parke, B. By the Roman 

Bayley, J. Law, reputation or common fame seems 

■•* Morewood v. Wood, 14 East, 329, n., to liave been admissible in evidence, in all 

per Ld. Kenyon ; Weeks v. Sparke, 1 M. cases ; but it was not f;enerally deemed 

& S. 68G, per Ld. EUenborough ; The sufficient proof, and, in some cases, not 

lierkley J'eerage case, 4 Campb. 416, per even semijdena probatio, unless cori'obo- 

Manstield, C. J. rated ; nisi aliis adminicuUs odjnvetur. 

» 1 Stark. Evid. 195; Price v. Currell, 6 Mascardus, De Prob. vol. 1, Concl." 171, n. 

M. & W. 2:U. And see ISIoyes v. White, 1 ; Concl. 188, n. 2 ; Concl. 547, n. 149. 

19 Conn. 250. It was held sufficient plena probatio, wher- 

■* Crease v. Barrett, 1 Crorap. Mees. & ever, from the nature of the case, better 

* [Persons living out of sucli district are not therefore be aflTccted by proof of it. 
not presumed to know such fact, and can- Dunbar v. ]Mulry, 8 Gray, 163.J 



CHAP. VI.] MATTERS OF GENERAL INTEREST. 153 

§ 129. Thus, in an action of trespass quare clausum frer/it, 
where the defendant pleaded in bar a prescriptive right of common 
in the locus in quo, and the plaintiff replied, prescribing the right 
of his messuage to us^e the same ground for tillage with corn, 
until the harvest was ended, traversing the defendant's prescrip- 
tion : it appearing that many persons beside the defendant had 
a right of common there, evidence of reputation, as to the plain- 
tiff's right, was held admissible, provided it were derived from 
persons conversant with the neighborhood.^ But where the ques- 
tion was, whether the citj of Chester anciently formed part of 
the county Palatine, an ancient document, purporting to be a 
decree of certain law officers and dignitaries of the crown, not 
' having authority as a court, was held inadmissible evidence on 
the ground of reputation, they having, from their situations, no 
peculiar knowledge of the fact.^ And, on the other hand, where 
the question was, whether Nottingham Castle was within the 
hundred of Broxtowe, certain ancient orders, made by the justices 
at the quarter sessions for the county, in which the castle was 
described as being within that hundred, were held admissible 
e^ddence of reputation ; the justices, though not proved to be 
residents within the county or hundred, being presumed, from 
the nature and character of their offices alone, to have sufficient 
acquaintance with the subject to which their declarations related.^ 
I Thus it appears that competent knowledge in the declarant is, 
I in all cases, an essential prerequisite to the admission of his 
! testimony ; and that though all the citizens are presumed to have 
that knowledge, in some degree, where the matter is of public 
concernment, yet, in other matters, of interest to many persons, 
some particular evidence of such knowledge is required. 

§ 180. It is to be observed, that the exception we are now con- 



evidence was not attainable ; nhi a commu- of the subject in the neighborhood was a 

niter arcidentihus, probatio difficilis est, fama fact also relied on in the Roman law, in 

plenum solet probationem facere ; ut in proba- cases of proof by common fame. '' Quan- 

tione Jiliationis. But Mascardus deems it do testis vult probare aUquem scivisse, 

not sufBcient, in cases of pedigree within non videtur sufficere, quod dicat ille scivit 

the memory of man, which he limits to quia erat vicinus ; sed debet addere, in 

fifty-six years, unless aided by other evi- viciuia hoc erat cognitmn per famam, vel 

dence, — tunc ncmpe non suffi.cer«t publica vox aliomodo; et ideo iste, qui erat vicinus, 

et fama, sed una cum ipsa deba-d tractatus et potuit id scire." J. Meuochius, De Prae- 

nominatio probari vel alia adminimla urgentia simip. torn. 2, lib. 6, Praes. 24, n. 17, p. 

adhiberi. Mascard. De Prob. vol. 1, Concl. 772. 

411, n. 1, 2, 6, 7. 2 Rogers v. Wood, 2 Barn. & Ad. 245. 

1 Weeks v. Sparke, 1 M. & S. 679, G88, ^ Duke of Newcastle v. Broxtowe, 4 

per Le Blanc, J. The actual discussion Barn. & Ad. 273. 



l'>4 LAW OF EVIDENCE. [PART II. 

sidering is admitted oyily in the case of ancient rights, and in respect 
to the declarations of persons supposed to be dead} It is required 
by the nature of the rights in question ; tlieir origin being gen- 
erally antecedent to the time of legal memory, and incaj)aljle of 
direct proof by living witnesses, both from this fact, and also from 
the undefined generality of their nature. It has been held, that 
where the nature of the case admits it, a foundation for the rece]> 
tion of hearsay evidence, in matters of public and general interest, 
should first be laid by proving acts of enjoyment within the period 
of living memory .2 But tliis doctrine has since been overruled; 
and it is now held, that such proof is not an essential condition 
of the reception of evidence of reputation, but is only material, 
as it affects its value when received.^ Where the nature of the 
subject does not admit of proof of acts of enjoyment, it is obvious 
that proof of reputation alone is sufficient. iSo, where a right or 
custom is established by documentary evidence, no proof is neces- 
sary of any particular instance of its exercise ; for, if it were 
otherwise, and no instance were to happen within the memory of 
I man, the right or custom would be totally destroyed.* In the 
case of a private right, however, where proof of particular instances 
of its exercise has first been given, evidence of reputation has 
sometimes been admitted in confirmation of the actual enjoyment ; 
but it is never allowed against it.'^ 

§ 131. Another important qualification of the exception we have 
been considering, by which evidence of reputation oi* common 
fame is admitted, is, that tKe declaration so receiv ed mu st hav e 

1 Moseley v. Davies, 11 Price, 162 ; Re- ^ White v. Lisle, 4 Mad. R. 214, 225. 

gina V. Milton, 1 Car. & Kir. 58 ; Davis v. See Morewood v. Wood, 14 East, 330, n., 

Fuller, 12 ViTiii. K. 178. per liuUer, J. ; Weeks v. Sparke, 1 M. & 

^ Per Bailor, J., in Morewood v. Wood, S. 6'JO, per Baylcy, J. ; Rogers i'. Allen, 1 

14 East, 330, note ; per Le Blanc, J., in Campb. 309 ; Richards ;•. Bassctt, 10 B. & 

Weeks i'. Sparke, 1 M. & S. 688, 689. C. 662, 663, per Littledale, J. A doctrine 

'•^ Crease v. Barrett, 1 Croin[). Mees. & nearly similar is hold by the civilians, iu 
Rose. yi'J, 930. See also aco. Curson v. cases of ancient private rights. Thus 
Lomax, 5 Esp. 90, per Ld. EUenborough ; Mascardus, after stating, upon the author- 
Steele v. Prickett, 2 Stark. 463, 466, per ity of many jurists, that iJominium in anti- 
Abbott, C. J.; Ratcliff v. Chapman, 4 quis prohdri per faimim,traditum est, — vduti 
Leon. 242, as explained by Grose, J., in sifama sit, fume domum fuisse Dantis Poetie, 
Beebe v. Parker, 5 T. R. 32. vel alterius, qui decessit, jam sunt centum 

* Beebe v. Parker, 5 T. R. 26, 82; Doe anni, et mmo vidit, qui ridcrit, quern rcfert, 

V. Sisson, 12 East, 62 ; Steele ?•. Prickett, cljr., subse(iuontly qualities this general 

2 Stark. R. 463, 466. A single act, undis- proposition in these words : — Pnmo limita 

turbed, has been held sufficient evidence princijialcin conclusionem, ut non jirocedat, 

of a custom, the court refusing to set nisi cum fame concuirant alia adminicula, 

aside a verdict finding a custom upon saltern pnesentis possessionis. ^x. MascarcL 

such evidence alone. Roe v. Jeflery, 2 M. De Prob. vol. 2, Concl. 547, n. 1, 14. 
& S. 92; Doe v. Mason, 3 Wils. 63. 



i 

CHAP. VI.] MATTERS OF GENERAL INTEREST. 155 ^i" . 

been made hefore^anii controversy arose, touchinci- tlio jimttcr to 
which they relate ; or, as it is usually expressed, ante litc/n muta/u. 
The ground on which such evidence is admitted at all is, that tlie '» 
declarations " are the natural effusions of a party who must know 
the trutli, and who speaks upon an occasion when his mind stands 
in an even position, without any temptation to exceed or fall 
short of the truth." ^ But no man is presumed to be thus indif- 
ferent in regard to matters in actual controversy ; for when the ? 
contest has begun, people generally take part on the one side or " 
the other ; their minds are in a ferment ; and if they are disposed ^ J 
to speak the truth, facts are seen by them through a false medium, 'y N 
To avoid, therefore, the mischiefs which would otherwise result, ^ "V 
all ez parte declarations, even though made upon oath, referriiig ^ 
to a date subsequent' fo' tlie begiiuiing of the controversy, are' "^ 
rejected.^ This rule of evidence was familiar in the Roman law ; 
but the term Us mota was there applied strictly to the commence- 
ment of the action, and was not referred to an earlier period of 
the controversy .3 But in our law the term lis is taken in the 
classical and larger sense of controversy ; and by Us mota is under- 
stood the commencement of the controversy, and not the com- 
mencement of the suit.* The commencement of the controversy 
has been further defined by Mr. Baron Alderson, in a case of pedi- 
gree, to be " the arising of that state of facts, on which the claim 
is founded, without any thing more." ^ [* And m the late case of 
Butler V. Mountgarret^ it was held, that a controversy in a family, 
though not at that moment the subject of a suit, constitutes suflS- 1; 
ciently a Us mota, to render inadmissible a letter written on that 
subject by one member of the family and addressed to another.] 

§ 132. The Us mota, in the sense of our law, carries with it the 
further idea of a controversy upon the same particular subject in j"^ 
issue. For, if the matter under discussion at the time of trial ' 

1 Per Ld. Eldon, in Whitelocke v. Juris, Glossatum, torn. 1, col. 553, ad Dig. 
Baker, 13 Ves. 514 ; Rex v. Cotton, 3 lib. iv. tit. 6, 1. 12. Lis mota censetur, 
Campb. 444, 446, per Dampier, J. etiamsi solits actor egerit. Calv. Lex. Verb. 

2 The Berkley Peerage case, 4 Campb. Lis Mota. 
401, 409, 412, 413 ; Monkton v. The At- * Per Mansfield, C. J., in the Berkley 
1»rne3'-General, 2 Russ. & My. 1(50, 161 ; Peerage case, 4 Campb. 417 ; Monkton v. 
Richards v. Bassett, 10 B. & C. 657. The Attorney-General, 2 Russ. & My. 

3 Lis est, lit primum in jus, vel in jitdi- 161. 
cium venttim est ; ant e(]uam in judicium veniu- ^ Walker v. Countess of Beaiichamp, 
tur, controversia est, non lis. Cujac. Opera 6 C. & P. 552, 561. But see Reilly v. 
Posth. tom. 5, col. 193, B. and col. 162, D. Fitzgerald, 1 Drury (Ir.), R. 122, where 
Lis inchoata est ordinata per Ubellum, et satis- this is questioned. 
dationem, licet non sit lis contestata. Corpus ^ [* 7 Ho. Lds. Cas. 633.] 



"V, 1 



^ 



156 LAW OF EVIDENCE. [PART II. 

was not in controversy at the time to wliicli the declarations 
offered in evidence relate, they are admissible, notwithstanding 
a controversy did then exist upon some other branch of the same 
general subject. The value of general reinitation, as evidence 
of the true state of facts, dejieuds ui)on its being the concurrent 
belief of minds unbiased, and in a situation favorable to a knowl- 
edge of the truth ; and referring to a period when this fountain 
of evidence was not rendered turbid by agitation. But the dis- 
cussion of other topics, however similar in their general nature, 
at the time referred to, does not necessarily lead to. the inference, 
that the particular point in issue was also controverted, and, 
therefore, is not deemed sufficient to exclude the sort of proof we 
are now considering. Thus, where, in a suit between a copy- 
holder and the lord of the manor, the point in controversy was, 
whether the customary fine, payable upon the renewal of a life- 
lease, was to be assessed by the jury of the lord's court, or by the 
reasonable discretion of the lord himself; depositions taken for 
the plaintiff, in an ancient suit by a copyholder against a former 
lord of the manor, where the controversy was upon the copy- 
holder's right to be admitted at all, and not upon the terms of 
admission, in which depositions the customary fine was mentioned 
as to be assessed by the lord or his steward, were held admissible 
evidence of what was then understood to be the undisputed cus- 
tom.i In this case, it was observed by one of the learned judges, 
that "the distinction had been correctly taken, that where the 
lis mota was on the very point, the declarations of persons woidd 
not be evidence ; because you cannot be sure, that in admitting 
the depositions of witnesses, selected and brought forward on 
a particular side of the question, who embark, to a certain degree, 
with the feelings and prejudices belonging to that particular side, 
you are drawing evidence from perfectly un})olluted sources. But 
where the point in controversy is foreign to that which was before 
controverted, there never has been a Us mota, and consequently 
the objection does not apply." 

§ 183. Declarations made after the controversy has originated, 
are excluded, even though proof is offered that the existence of 
tlie controversy was not known to the declarant. The question 
of his ignorance or knowledge of this fact is one which the courts 

1 Freeman v. riiillips, 4 M. & S. 486, 407 ; Elliott v. Piersol, 1 Peters, 328, 337. 



CHAP. VI.] MATTERS OF GENERAL INTEREST. 157 

will not try ; partly because of tlie danger of an erroneous decision \ 
of the principal fact by the jury, from the raising of too many ^ 
collateral issues, thereby introducing great confusion into the 
cause ; and partly from the fruitlessness of the inquiry, it being 
from its very nature impossible, in most cases, to prove that the 
existence of the controversy was not known. The declarant, in 
these cases, is always absent, and generally dead. The light 
afforded by his declarations is at best extremely feeble, and far 
from being certain ; and if introduced, with the proof on both 
sides, in regard to his knowledge of the controversy, it would 
induce darkness and confusion, perilling the decision without the 
probability of any compensating good to the parties. It is there- 
fore excluded, as more likely to prove injurious than beneficial.^ 
[* The admissibility of the declarations of members of the family 
terminates with the commencement of the controversy, and the 
question is not affected, by any knowledge or ignorance on the 
part of the declarant of the existence of the controversy ; nor by 
proof that such' proceedings were fraudulently commenced with 
.a view to exclude the admissibility of such declaration.^ And it 
is here said, that it is the commencement of the controversy, and 
not of the situation from which it springs, that is to be regarded 
as the commencement of the Us mota, and as terminating the 
admissibility of family declarations. But a declaration made 
expressly with a view to a probaBTe^Tuture contest is admissible, 
quantum valeat ; but not if made in a prior cause on the same 
subject matter, but to this effect the same precise point now in 
controversy must have been there involved.^] 

§ 134. It has sometimes been laid down, as an exception to the 
rule excluding declarations made post litem motam, that declara- 
tions concerning pedigree will not be invalidated by the circum- 
stance that they were made during family discussions, and for the 

1 The Berkley Peerage case, 4 Campb. venim sit, si ibidem, xibi res agitiir, audie- 
417, per Mansfield, C. J. ; supra, § 124. rit; at si alibi, in loco qui longissime dis- 
This distinction, and the reasons of it, taret, sic intellexerit, ctiani post litem 
■were recognized in the Eoman law; but motam testes de auditu admittuntnr. 
there the rule was to admit the declar- Longinquitas enim loci in causa est, ut 
ations, though made post litatn motam, if omnis suspicio abesse videatiir quaj qtii- 
they were made at a place so verj' far re- dem susjiicio adesse potest, quando testis 
mote from the scene of the controversy, de auditu post litem motam, ibidem, ubi 
as to remove all suspicion that the declar- res agitur, dcponit." IMascard. De Pro- 
ant had heard of its existence. Thus it bat. vol. 1, p. 401 [429], C'oncl. 410, n. 5, 6. 
is stated hy Mascard its : — " Istud autem - [* Shedden v. Patrick, 2 Sw. & Tr. 
quod diximus, debere testes deponere 170. See Jenkins v. Davies, 10 Queen's 
ante litem motam, sic est accipiendum, ut Bench Eep., n. s. 314.] 
VOL. I. 14 



158 LAW OF EVIDENCE. [PART II. 

purpose of preventing future controversy ; and the instance given, 
by way of illustration, is that of a solemn act of i)arents, under 
their hands, declaring the legitimacy of a child. But it is con- 
ceived, that evidence of this sort is admissilde, not by way of 
exception to any rule, but because it is, in its own nature, original 
evidence ; constituting part of the fact of the recognition of exist- 
ing relations of consanguinity or aflfiinity ; and falling naturally 
under the head of the expression of existing sentiments and affec- 
I tions, or of declarations against th e interest, and peculiarly within 
the knowledge of the party making them, or of verbal acts, ])art 
of the res gestce} 

§ 135. Where evidence of reputajion is admitted, in cases of 
public or gciicrar interest, it is not necess_ary that the witness 
should be able to specify from whom he heard the declarations . For 
that, in much the greater number of cases, would be impossible ; 
as the names of persons long since dead, by whom declarations 
upon topics of common repute have at some time or other been . 

made, are mostly forgotton.^ And, if the declarant is known, and ^ 

appears to have stood in pari casu with the i)arty offering his v ji 
declarations in evidence, so that he could not, if living, have l)eenj v 
personally examined as a witness to the fact of which he speaks,! y].; 
this IS no valid objection to the admissibility of his declarations. 
The reason is, the absence of opportunity and motive to consult 
his interest, at the time of speaking. Whatever secret wish or 
bias he may have had in the matter, there was, at that time, no 
excited interest called forth in his breast, or, at least, no means 
were afforded of promoting, nor danger incurred of injuring any 
interest of his own; nor could any such be the necessary result 
of his declarations. Whereas, on a trial, in itself and of necessity 
directly affecting his interest, there is a double objection to ad- 
mitting his evidence, in the concurrence both of the temptation 
of interest, and the excitement of the Us mota.^ 

§ 130. Indeed the rejection of the evidence of reputation, in 

1 Supra, §§ 102-108, 131 ; Goodripht ?'. (iralmiu, B. ; Deaclc i\ TTanwck, 13 Price, 
Mo8S, Cowp." ij'.tl ; Monkton v. The Attor- 2:5(), 1^37 ; Nichols v. Parkor, 14 East, 331, 
ncy-GciuTal, "2 liuss. & Mv. 147, 1(10, 1(11, note; llarwood /•. Sims, AVii;htw. 1V2; 
1114; Slaiicy r. Wade, 1 My. & Cr. 3;!8 ; Freeman v. Pliillii)s, 4 M. & S. 4W1, 491, 
The Berkley l'cera<re case, 4 Campb. 418, cited and approved by Lyndhurst, C. B., 
per Mansfield, C. J. in Davies v. Morgan, 1 C. & J., 593, 594 ; 

2 Moselev v. Davies, 11 Price, 162, 174, Monkton v. Attorney-General, 2 Russ. & 
per Kichanfs, C B. ; Harwood v. Sims, My. 159, IGO, per Ld. Cli. Broujiham ; 
Wifrhtw. 112. Keed v. Jackson, 1 East, 3-'35, 357 ; Cliap- 

i* Moscley v. Davies, 11 Price, 179, per man v. Cowlan, 13 East, 10. 



CHAP. VI.] MATTERS OF GENERAL INTEREST. 159 

cases of public or general interest, because it may bave come from 
persons in pari casu witli tlic party offering it, would be inconsist- 
ent witb tlie qualification of the rule which has already been 
mentioned, namely, that the statement thus admitted must appear 
to have been made by persons having competent knowledge of the 
subject.^ Without such knowledge, the testimony is worthless. 
In matters of public right, all persons are presumed to possess 
that degree of knowledge, which serves to give some weight to 
their declarations respecting them, because all have a common 
interest. But in subjects interesting to a comparatively small 
portion of the community, as a city or parish, a foundation for 
admitting evidence of reputation, or the declarations of ancient 
and deceased persons, must first be laid, by showing that, from 
their situation, they probably were conversant vnth the matter of 
which they were speaking.^ 

§ 137. The probable want of competent hrwivledge in the declarant, 
is the reason generally assigned for rejecting evidence of reputation 
or common fame, in matters of mere private right. " E\'idence of 
reputation, upon general points, is receivable," said Lord Kenyon, 
" because, all mankind being interested therein, it is natural to 
suppose that they may be conversant with the subjects, and that 
they should discourse together about them, having all the same 
•means of information. But how can this apply to private titles, 
either with regard to particular customs, or private prescriptions ? 
How is it possible for strangers to know any thing of what con- 
cerns only private titles ? " ^ The case of prescriptive rights has 
sometimes been mentioned as an exception ; but it is believed 
that where evidence of reputation has been admitted in such cases, 
it will be found that the right was one in which many persons 
were equally interested. The weight of authority, as well as the 

1 Supra, §§ 128, 129. turn, possint pro sua communitate deponere. 

2 Weeks v. Sparke, 1 M. & S. 679, 686, Licet hiijiismoili testes sint de imiversitate, et 
690 ; Doe d. Molesworth i\ Sleeman, 1 dejionan't super confinihus suk imiversitatis, 
New Pr. Cas. 170 ; Morewood v. Wood, 14 probant, dummoditm pnecipuum ipsi commo- 
East, 327, note ; Crease v. Barrett, 1 Cr. dum non sentiaM, licent in/erant commodum In 
M. & Ros. 929 ; Duke of Newcastle v. universum." Mascard. "l)e Probat. vol. i, 
Broxtowe, 4 B. & Ad. 278 ; Rogers v. rp. 389, 300, Conel. 395, n. 1, 2, 9, 19. 
Wood, 2 I?. & Ad. 245. The Roman law, '-^ Morewood v. Wood, 14 East, 329, 
as stated by Mjiscardus, agrees with the note, per Ld. Kenyon ; 1 Stark. Evid. oO, 
doctrine in the text. " Conjines prohantur 31 ; Clothier v. Chapman, 14 East, 331, 
per testes. Verum scias velim, testes in hac note ; Reed v. Jackson, 1 East, 357 ; Out- 
materia, qid vicini, et cirnim ibi habitant, ram is, ^lorewood, 5 T. R. 121, 123 ; 
esse magis idoneos quam alios. Si testes non Weeks v. Sparke, 1 M. & S. 679. 
sentiant commodum vel incommodum imviedia- 



'^ IGO LAW OF EVIDENCE. [PART 11. 

T reason of the rule, seem alike to forbid the admission of this kind 
1 of evidonee, except in cases of a public or quasi public nature.^ 

v^ § l^S. Tliis principle may serve to explain and reconcile what 

^5 is said in the books respecting the admissibility of reputation^ m 
«5 regard io particular facts. Upon general points, as we have seen, 
*.-_ such evidence is receivable, because of the general interest which 
^ the community have in them; but particular facts of a private 
A nature, not being notorious, may be misrepresented or misunder- 
stood, and may have been connected with other facts, by which, if 
\ known, their effect might be limited or explained. Bcputation 
[x^ as to the existence of such particular facts is, therefore, rejected. 
. ^^ But, if the particular fact is proved aliujide, evidence of general 
reputation may be received to qualify and explain it. Thus, in a 
: i 'suit for tithes, where a ])arochial modus of sixpence per acre was 
" ^ set up, it was conceded that evidence of reputation of tlie payment 
^ of that sum for one piece of land would not be admissible ; but it 
was held, that such evidence would be admissible to the fact that 
it had always been customary to pay that sum for all the lands in 
j the parish.2 xind where the question on the record was whether 
I a turnpike was within the limits of a certain town, evidence of 
V- i general reputation was admitted to show that the bounds of the 
^ -^ ' town extended as far as a certain close ; but not that formerly 
; there were houses, where none then stood; the latter being a 

1 Ellicott V. Pearl, 10 Peters, 412; Lowes, 2 M. & S. 494, 500, where the 
Kichards v. Bassett, 10 B. & C. 657, 662, question was as to the jreneral usajxe of all 
GG3, per Littleilale, J. ; supra, § loO. Tlie the tenants of a manor, the defendant 
following are cases of a quasi puhlic na- being one, to cut certain woods ; — lii-ett 
tvu-e ; though tlioy are usually, but, on the v. Beales, 1 Mood. & JMalk. 416, which 
foregoing principles, erroneously, cited in was a claim of ancient tolls belonging to 
favor of the admissibility of evidence of the Corporation of Cambridge; — White 
reputation in cases of mere private right, v. Lisle, 5 Madd. Ch. 11. 2li, 224, 225, 
Bp. of Meath v. Ld. Belfleld, Bull. N. P. where evidence of reputation, in regard 
295, where the question was, who pre- to a parochial modus, was held admissi- 
sented the former incumbent of a parish ; ble, because " a class or district of per- 
a fact interesting to all the parishioners ; sons was concerned ; " but denied in 
Price V. Littlewood, 3 Campb. 288, where regard to a farm modus, because none but 
an old entry in the vestry-book, by the the occupant of the farm was concerned, 
church-wardens, sliowing by what jiersons In Davies v. Lewis, 2 Chitty, K. 5;;5, the 
certain i)arts of the church were repaired, declarations offered in evidence were 
in considenitiim of their occupancy of clearly admissible, as being those of ten- 
pews, was admitted, to show title to a pew, ants in possession, stating under whom 
in one under whom the plaintiff claimed ; they held. See supra, § 108. 
— Barnes r. Mawson, 1 M. & S. 77, wliich - Ilarwood v. Sims, Wightw. 112, more 
was a question of boundary between two fully rejtorted and explained in Moseley r. 
large district.s of a manor called the Old Davies, 11 Price, 162, 16U-172; Chatfield 
and New I>ands ; — Anscomb i'. Shore, 1 v. Fryer, 1 Price, 253 ; Wells v. Jesus 
Taunt. 261, where the right of common College, 7 C. & P. 284 ; Leathes v. New- 
prescribed for was claimed by all the in- itji, 4 Price, 355. 
liubitants of Hampton ; — Blackett v. 



CHAP. VI.] MATTERS OF GENERAL INTEREST. 161 

particular fact, in which the public had no int erest .^ So, wliere, 
upon an information against the sheriff of the county of Chester, 
for not executing a death-warrant, the question was whether the 
sheriff of the county or the sheriffs of the city were to execute 
sentence of death, traditionary evidence that the sheriffs of the 
county had always been exempted from the performance of that 
duty was rejected, it being a private question between two indi- 
viduals ; the public having an interest only that execution be r^yj^ 
done, and not in the person by whom it was performed.^ The ^. 



^ €" 



question of the admissibility of this sort of evidence seems, there- 
fore, to turn upon the nature of the reputed fact, whether it was 
interesting to one party only, or to many. If it were of a public 
or general nature, it falls within the exception we are now con- 
sidering, by which hearsay evidence, under the restrictions already 
mentioned, is admitted. But if it had no connection with the 
exercise of any public right, nor the discharge of any public duty, 
nor with any other matter of general interest, it falls within the 
general rule, by which hearsay evidence is excluded.^ 

§ 139. Hitherto we have mentioned oral declarations, as the 
medium of proving traditionary reputation in matters of public 
and general interest. The principle, however, upon which these 
are admitted, applies to documentary and all other kinds of proof 
denominated hearsay. If the matter in controversy is ancient, and 
not susceptible of better evidence, any proof in the nature of tradi- 
tionary declarations is receivable, whether it be oral or written ; 
subject to the qualifications we have stated. Thus, deeds, leases, 
and other private documents, have been admitted, as declaratory 
of the public matters recited in thom.'^ Maps, also, showing tlie 

1 Ireland if. Powell, Salop. Spr. Ass. 3 T. R. 709, per Grose, J. Where partic-' 
1802, per Chanibre, J. ; Peake's Evid. 13, ular knowk'djie of a tact is souplit to he 
14 (Norris's edit. p. 27). (* It is no ground brouglit home to a party, evidence of the." ~ 
of objection to the admissibility of such general reinitation and belief of the exist- v 
evidence, that matters of private interest ence of that fact, among liis neighbors, is ^ 
are also involved in the public contro- admissible to llie jury, as tending to show 
versy. Reg. v. Bedford, 4 Kl. & Bl. 535. that he also had knowledge of it, as well 

S. C. 29 Eng. Law and Eq. II. 89.] as they. Brander r. Eerritlv, 16 Louisi- 

2 Rex V. Antrobus, 2 Ad. & El. 788, ana, R. 296. 

794. * Curzon v. Lomax, 5 Esp. 60; Brett 

3 White V. Lisle, 4 Madd. Ch. R. 214, v. Beales, 1 M. & M. 416 ; Claxton v. 
224, 225 ; Bp. of Meath v. Ld. Belfield, 1 Dare, 10 B. & C. 17 ; Clarkson r. Wood- 
Wils. 215; Bull. N. P. 295; Weeks v. house, 5 T. R. 412, n. ; 3 Doug. 189, 
Sparke, 1 M. & S. 679 ; Withnell v. Gar- s. c. ; Barnes v. Mawson, 1 M. & S. 77, 
tham, 1 Esp. 322 ; Doe v. Thomas, 14 78 ; Coombs t: Coether, 1 M. & M. 398 ; 
East, 323 ; Phil. & Am. on Evid. 258 ; 1 Beebe v. I'arker, 5 T. R. 26 ; Freeman v. 
Stark. Evid. 84, 35 ; Outram r. More- Phillips, 4 M. & S. 486 ; Crease i-. Bar- 
wood, 5 T. R. 121, 123 ; Rex v. Eriswell, rett, 1 Cr. Mees. & Ros. 923 ; Denn v. ' 

14* 



162 



LAW OF EVIDENCE. 



[part II. 



boundaries of towns and parishes, are admissible, if it appear that 
they have been made by persons liaving adequate knowledge.^ 
Verdicts, also, are receivable evidence of reputation, in questions 
of public or general interest.^ Thus, for example, where a public 
right of way was in question, the plaintiff was allowed to show a 
verdict rendered in his own favor, against a defendant in another 
suit, in which the same right of way was in issue ; but Lord 
Kenyon observed, that such evidence was, perhaps, not entitled 
to much weight, and certainly was not conclusive. The circum- 
stance, that the verdict was post litem motam, does not affect its 
admissibility.^ 

§ 140. It is further to be observed, tha t reputation is evidence 
as well against a public right as in its fayw^^Accordingly, where 
the question was, whether a landing-place was public or private 
property, reputation, from the declaration of ancient deceased 
persons, that it was the private landing-place of the party and his 
ancestors, was held admissible ; the learned judge remarking, 
that there was no distinction between the evidence of reputation 
to establish, and to disparage a public right.^ 



Spray, 1 T. K. 46G ; Bullen v. Michel, 4 
Dow, 298 ; Taylor v. Ccjok, 8 Price, 650. 

1 1 Phil. Evid. 250, 251; Alcock v. 
Cooke, 2 Moore &" Payne, 625; 5 Bing. 
340, s. c. ; Noyes v. White, 19 Conn. 250. 
Upon a question of houndary between two 
Ikrms, it being proved that the boundary 
of one of tlieni wa.s identical with that of 
a hamlet, evidence of reputation, as to the 
bounds of the hamlet was held admissible. 
Thomas v. Jenkins, 1 N. & P, 588. But 
an old map of a parish, produced from the 
parish chest, and which was made under 
a private inclosure act, was held inadmis- 
sible evidence of boundary, without proof 
of the inclosure act. lieg. v. Milton, 1 C. 
& K. 58. 

^ But an interlocutory decree for pre- 
serving the status quo, until a final de- 



cision upon the right should be had, no 
final decree ever having been made, is 
inadmissible as evidence of reputation. 
Pini V. Currell, 6 M. & W. 234. 

« Keed v. Jackson, 1 East, 355, 357 ; 
Bull. N. P. 233 ; City of London v. Clarke, 
Carth. 181 ; Rhodes v. Ainsworth, 1 B. & 
Aid. 87, 89, per Holroyd, J. ; Lancum v. 
Lovell, 9 Bing. 465, 469 ; Cort v. Birkbeck, 
1 Doug. 218, 222, per Lord Mansfield ; 
Case of the Manchester Mills, 1 Doug. 
221, ri. ; Berry ?'. Banner, Peake's Cas. 
156 ; Biddulph v. Ather, 2 Wils. 23 ; 
Brisco V. Lonuix, 3 N. & P. 388 ; Evans v. 
Kees, 2 P. & D. 627 ; 10 Ad. & El. 151, 
s. c. 

* Drinkwater r. Porter, 7 C. & P. 181; 
R. V. Sutton, 3 N. & P. 569. 



CHAP. VII.] OF ANCIENT POSSESSIONS. 163 



CHAPTEE YII. 

OF ANCIENT POSSESSIONS. 

[* § 141. Ancient documents admitted to establish ancient possessions. 

142. The document must come from the proper custody. 

143. Generally required that acts of use under them be shown. 

144. These documents should appear to be parts of the transactions in question. 

145. Under same restrictions reputation received to establish public, but not pri- 

vate, boundaries. 

146. Perambulations of public boundaries estabUshed in a similar manner.] 

§ 141. A second exception to the rule, rejecting hearsay evidence, 
is allowed in cases of ancient possession, and in favor of the admis- 
sion of ancient documents in support of it. In matters of private 
right, not affecting any public or general interest, hearsay is 
generally inadmissible. But the admission of ancient documents, 
purporting to constitute part of the transactions themselves, to 
which, as acts of ownership, or of the exercise of right, the party 
against whom they are produced is not privy, stands on a different 
principle. It is true, on the one hand, that the documents in 
question consist of evidence which is not proved to be part of any 
res gestce, because the only proof of the transaction consists in the 
documents themselves ; and these may have been fabricated, or, 
if genuine, may never have been acted upon. And their effect, if 
admitted in evidence, is to benefit persons connected in interest 
with the original parties to the documents, and from whose 
custody they have been produced. But, on the other hand, such 
documents always accompany and form a part of every legal 
transfer, of title and possession by act of the parties ; and there 
is, also, some presumption against their fabrication, where they 
refer to co-existing subjects by which their truth might be exam- 
ined.i On this ground, therefore, as well as because such is 
generally the only attainable evidence of ancient possession, this 
proof is admitted, under the qualifications Avhich will be stated. 

1 1 Phil. Evid. 273 ; 1 Stark Evid. 66, 67 ; Claikson v. Woodhousc, 5 T. E. 413, n., 
per Ld. Mansfield. 



164 



LAW OF EVIDENCE. 



[part ir. 






§ 142. As the value of these documents depends mainly on 
their having been contemporaneous, at least, with the act of 
transfer, if not part of it, care is firat taken to ascertain their 
genuineness ; and this may be shown ^;ri;?z^? facie, by ])roof that 
the document comes from the lyroper custody, or by otherwise 
accounting for it. Documents found in a place, in which, and 
X under the care of persons, with whom such papers might naturally 
and reasonably be expected to be found, or in the possession of 
persons having an interest in them, are in precisely the custody 
which gives authenticity to documents found within it.^ " For 
it is not necessary," observed Tindal, C. J., " that they should be 
found in the best and most proper~place of deposit! If documents 
continue in such custody, there never would be any question as 
to their authenticity ; but it is when documents are found in other 
than their proper place of deposit, that the investigation com- 
mences, whether it is reasonable and natural, under the circum- 
stances in the particular case, to expect that they should have, 
been in the place where they are actually found ; for it is obvious, 
that, while there can be only one place of deposit strictly and 



1 Per Timlal, C. J., in Bishop of 
Meath v. Marq. of Winchester, 2 Bing. 
N. c. 183, 200, 201, expounded and con- 
firmed by Barlic, B., in Ci'oughton v. 
Blake, 12 M. & W. 205, 208 ; and in Doe 
d. Jacobs V. PhilHps, 10 Jur. 34 ; 8 Ad. & 
El. 158, N. s. See also Lygon /;. Strutt, 2 
Anstr. 601 ; Swinnerton v. Marq. of Staf- 
ford, 3 Taunt. 91 ; Bullen v. Michel, 4 
Dow. 297 ; Earl v. Lewis, 4 Esp. 1 ; Kan- 
dolph V. Gordon, 5 Price, 312 ; Manby v. 
Curtis, 1 Price, 225, 232, per Wood, B. ; 
Bertie v. Beaumont, 2 I'rice, 303, 307 ; 
Barr v. Gratz, 4 Wheat. 213, 221 ; Winne 
V. Patterson, 9 Peters, 063-675 ; Clarke v. 
Courtney, 5 Peters, 319, 344 ; Jackson v, 
Laroway, 3 Johns. Cas. 383, approved in 
Jackson v. Luquere, 5 Cowen, 221, 225 ; 
Hewlett V. Cock, 7 Wend. 371, 374; Dun- 
can V. Beard, 2 Nott & McC. 400 ; IMiddle- 
t<m V. Mass, 2 Nott & McC. 55; Doe *'. 
Bevnon, 4 P. & D. 193 ; infra, § 570; Doe 
V. Pearce, 2 M. & Rob. 240 ; Tolman v. 
Emerson, 4 Pick. 160; [United States v. 
Castro, 2 llow. 346. j An ancient extent 
of crown lands, found in the office of the 
hind revenue records, it being the jirop- 
er repository, and purporting to have been 
made by the proper officer, has been held 
good evidence of the title of the crown to 
lands therein stated to have been pur- 
chased by the crown from a subject. 
Doe d. Wm. IV. v. lioberts, 13 M. & W. 



r<; 

v*;^ 



520. [An ancient private survey is not 
evidence. Daniel v. Wilkin, 7 Exch. ¥\.. 
429.] Court* will be liberal in admitting 
deeds, where no suspicion arises as to "^ \ 
their authenticity. Doe v. Keeling, 36 *? ^ 
Leg. Obs. 312; 12 Jur. 433 ; 11 Ad. & El.~< ,J 
884, N. s. The proper custody of an ex- , 
pired lease is that of the lessor; Ibid. ^ ,-J 
per Wightman, J. Whether a document J > 
comes from the proper custody is a ques- *^ n 
tion for the judge and not for the jury to ^ 
determine ; Ibid. Rees v. Walters, o M. & 
W. 527, 531. The rule stated in the text 
is one of the grounds on which we insist v 
on tlie genuineness of the books of the T ^ 
"Holy Scriptures. They are found in ^^V 
the proper custody, or place, where alone *i <f 
they ouglit to be "looked for; namely, th^r-^ "» 
Church, where they have lieen kept froni 3^^ ♦ 
time immemorial. They have been con- <J 
stantly referred to, as the foundation of ^^ u 
faith, by all the opposing sects, whose exx rj J 
istence God, in his wisdom, has seen fit to/]]*^ A, 
permit; whose jealous vigilance would t^S^ 
readil}- detect any attempt to falsify the 
text, and whose diversity of creeds would "?M 
render any n)Utual combination morally "^^ 
in)possihle. The burden of proof is, 
therefore, on the objector, to impeach 
the genuineness of these bo^jks ; not on 
the Christian, to establish it. See Green- 
leaf on the Testimonj- of the EvangeUsts, 
PreUm. Obs. § 9. 



CHAP. VII.] OP ANCIENT POSSESSIONS. . 105 

absolutely proper, there may be many and various that are reason- 
able and probable, though differing in degree ; some being more 
so, some less ; and in those cases, the proposition to be determined 
is, whether the actual custody is so reasonably and probably 
accounted for, that it impresses the mind with the conviction that 
the instrument found in such custody must be genuine. That 
such is the character and description of the custody, which is held 
sufficiently genuine to render a document admissible, appears 
from all the cases." 

§ 143. It is further requisite, where the nature of the case will 
admit it, that proof be given of some act done in reference to the 
documents offered in evidence, as a further assurance of their 
genuineness, and of the claiming of title under thdin. If the 
document bears date post litem motam, however ancient, some 
evidence of correspondent acting is always scrupulously required, 
even in cases where traditionary evidence is receivable.^ But in 
other cases, where the transaction is very ancient, so that proof 
of contemporaneous acting, such as possession, or the like, is not 
probably to be obtained, its production is not required.^ But 
where unexceptionable evidence of enjoyment, referable to the 
document, may reasonably be expected to be found, it must be 
produced.^ If such evidence, referable to the document, is not 
to be expected, still it is requisite to prove some acts of modern 
enjoyment, with reference to similar documents, or that modern 
possession or user should be shown, corroborative of the ancient 
documents.^ 

§ 144. Under these qualifications, ancient documents, purporting 
to be a part of the transactions to icJiich they relate, and not a mere 
narrative of them, are receivable as evidence, that those trans- 
actions actually occurred. Aitd though they are spoken of as 
hearsay evidence of ancient possession, and as such are said to be 
admitted in exception to the general rule ; yet they seem rather 
to be parts of the res gestae, and therefore admissible as original 
evidence, on the principle already discussed. An ancient deed. , 
by which is meant one more than thirty years old, h aving nothing 

1 1 Phil. Evifl. 277 ; Brett v. Beales, 1 » 1 Phil. Evid. 277 ; Plaxton v. Dare, 

Mood. & M. 416 ; [United States v. Cas- 10 B. & C. 17. 

tro, 24 How. 346.1 * Kogers v. Allen, 1 Campb. 309, 311 ; 

'^ Clarkson v. Woodhouse, 5 T. R. 412, Clarkson v. Woodhouse, 5 T. E. 412, n. 

413, n., per Ld. Mansfield; supra, § 180, See the cases collected in note to § 144, 

and cases there cited. infra. 



1 






166 



LAW OF EVIDENCE. 



4 

[part II. J 



suspicious about it, is presumed to be genuine without express 
proof, the witnesses being presumed dead ; and, if it is found in , 
the proper custody, and is corroborated by evidence of ancient or .'^ 
modern corresponding enjoyment,^ or by other equivalent or ex-"' 
planatory proof, it is to be presumed that the deed constituted '^> 
part of the actual transfer of property therein mentioned ; because s^ 
this is the usual and ordinary course of such transactions among 
men. The residue of the transaction may be as unerringly in- -^ 
ferred from the existence of genuine ancient documents, as the ,^ 
remainder of a statue may be made out from an existing torso, 
or a perfect skeleton from tlie fossil remains of a part. 

§ 145. Under this head may be mentioned the case of ancient 
boundaries ; in proof of which, it has sometimes been said, that 
traditionary evidence is admissible from the nature and necessity 
of the case. But, if the principles already discussed in regard 
to the admission of hearsay are sound, it will be difficult to sustain 
an exception in favor of such evidence merely as applying to ^^ 
boundary, where the fact is particular, and not of public or j^> 
general interest. Accordingly, though evidence of reputation is >» 



V 



1 It has been made a question, whether 
tlie document may be read in evidence, 
before the proof of possession or other 
equivalent corroborative proof is offered ; ■ 
but it is now stated that the document, if 
otherwise apparently genuine, may be first 
read ; for the question, wlietlier tliere 
lias been a corresponding possession, can 
liardly be raised till the com-t is made 
a(;quainted with the tenor of the instru- 
ment. Doe V. Passingham, 2 C. & P. 440. 
If the deed appears, on its ftice, to have 
been executed imder an authority which 
is matter of record, it is not admissible, 
however ancient it may bo, as evidence of 
title to land, without proof of the author- 
ity under which it was e.vecuted. Tol- 
man v. pjmerson, 4 Pick. UK). A graver 
question has been, whether the proof of 
possession is indispensable ; or whether 
its absence may be supplied by other 
satisfactory corroborative evidence. In 
Jackson d. Lewis v. Laroway, 3 Johns, 
(^as. 283, it was held by Kent, J., against 
tlie opinion of the other judges, that it 
was indispensable ; on the authority of 
Fleta, lib. 6, cap. 34 ; Co. Lit. 6 b ; Isack 
V. Clarke, 1 RoU. R. 132 ; James v. Trol- 
loj), Skin. 239 ; 2. Mod. 823 ; Forbes v. 
Wale, 1 W. Bl. R. 532; and the same 
doctrine was agam asserted by him, iu 
delivering the judgment of the court, in 



Jackson d. Burhans ?'. Blanshan, 3 Johns.' 
292, 298. See also Thompson v. Bullock, 
1 Bay, 3U4 ; Middleton v. Mass, 2 Nott & 
]\IcC. 55 ; Carroll v. Norwood, 1 Har. & J. 
174, 175 ; Shaller v. Brand, 6 Binn. 439 ; 
Doe V. I'helps, 9 Johns. 169, 171. But 
the weight of authority at present seems 
clearly the other way ; and it is now 
agreed that, where proof of possession can- 
not be had, the deed may be read, if its 
genuineness is satisfactorily established 
by other circumstances. See Ld. Ran- 
ciiffe V. Parkins, 6 Dow, 202, per Ld. 
Eldon ; McKenire v. Frazer, 9 Ves. 5; 
Doe V. Passingham, 2 C. & P. 440 ; Barr 
v: Gratz, 4 Wheat. 213, 221 ; Jackson d. 
Lewis V. Laroway, 3 Johns. Cas. 283, 287 ; 
Jackson d. Hunt v. Luquere, 5 Cowen, 
221, 225 ; Jackson d. Wilkins v. Lamb, 7 
Cowen, 431 ; Hewlett v. Cock, 7 Wend. 
371, 873, 374 ; Willson v. Betts, 4 Denio, 
201. Where an ancient document, pur- 
porting to be an exemplification, is pro- 
duced from the proper place of deposit, 
having the usual slip of parchment to 
which the great seal is appended, but no 
appearance that any seal was ever affixed, 
it is still to be presumed, that the seal was 
once there and has been accidentally re- 
moved, and it may be read in evidence as 
an exempUfication. Mayor, &c. of Bever- 
ley V. Craven, 2 M. & Rob. 140. 



i 



\i 



l\- 



CHAP. VII.] 



OP ANCIENT POSSESSIONS. 



IG- 



received, in regard to the boundaries of parislics, manors, and tlie 
like, which are of public interest, and generally of remote an- 
tiquity, yet, by the weight of authority and upon better reason, 
such evidence is held to be inadmissible for the purpose of proving 
the boundary of a private estate, when such boundary is not 
identical with another of a public or quasi public nature.^ Where 



1 Ph. and Am. on Evid. 255, 256 ; 
supra, § loii, note (2) ; Thomas v. Jen- 
kins, 1 N. & P. 588 ; Reed v. Jackson, 1 
East, 355, 357, per Ld. Kenj^on ; Doe v. 
Thomas, 14 East, 323 ; More wood «. Wood, 
Id. 327, note ; Outraai v. Morewood, 5 
T. R. 121, 123, per Ld. Kenyon ; Nichols 
V. Parker, and Clotliier v. Chapman, in 14 
East, 331, note ; Weeks v. Sparke, 1 M. & 
S. 688, 689 ; Dura van v. Llewellyn, 15 Q. 
B. 791, Exch. Chanc. ; Cherry v. Boyd, 
Littell's Selected Cases, 8, 9 ; 1 Phil. 
Evid. 182 (3d Lond. ed.), cited and ap- 
proved bv Tilshman, C. J., in liuclianuu 
r. Moore," 10 s". .S.- R. 281. Li the passage 
thus cited, the learned author limits the 
admissibihty of this kind of evidence to 
questions of a public or general nature ; 
including a right of common by custom ; 
which, he observes, " is, strictly speaking, 
a private right ; but it is a general right, 
and therefore, so far as regards the admissi- 
bility of this species of evidence, has been 
considered as public, because it affects a large 
numher of occupiers within a district." Supra, 
§§ 128, 138 ; Gresley on Evid. 220, 221. 
And more recently, in England it has 
been decided upon full consideration, that 
traditionary evidence, respecting rights 
not of a public nature, is inadmissible. 
Dunraven v. Llewellyn, 15 Ad. & El. 791, 
N. s. The admission of traditionary evi- 
dence, in cases of boiindaiy, occurs more 
fre<iuently in the United States than in 
England. By far tlie greatest portion of 
our territory was originally surveyed in 
large masses or tracts, owned either by 
the State, or by the United States, or 
by one, or a company, of proi)rietors ; 
\mder whose authority those tracts were 
again siu'veycd and divided into lots suit- 
able for single farms, by lines crossing the 
whole tract, and serving as the common 
boundary of very many farm-lots, lying 
on each side of it. So that it is hardly 
possible, in such cases, to prove the origi- 
nal boundaries of one farm, without affect- 
ing the common boundary of many ; and 
thus, in trials of this sort, the cuiestion is 
similar, in principle, to that of tlic bound- 
aries of a manor, and therefore tradition- 
ary evidence is freely admitted. Such 
was the case of Boardman r. Re<?(l, 6 
Peters, 328, where the premises in ques- 



tion being a tract of eight thousand acres, 
were part of a large connection of surveys, 
made together, and conttiining between 
fifty and one hundred tliousand acres of 
land ; and it is to such tracts, interesting 
to very many persons, that the remarks 
of Mr. Justice M'Lean, in that case (p. 
341), are to be applied. In Conn, et al. v. 
Penn. et al. 1 Pet. C. C. Rep. 496, the 
tract whose boundaries were in contro- 
versy was called the manor of Spring- 
etsbury and contained seventy thousand 
acres ; in which a great number of indi- 
viduals had severally l)ecome interested. 
In Doe d. Taylor v. Roe et al. 4 Hawks, 
116, traditionary evidence was admitted 
in regard to Earl Granvill's line, which 
was of many miles in extent, and after- 
wards constituted the boundary between 
counties, as well as private estat*. In 
Ralston v. Miller, 3 Randolph, 44, the 
question was upon the boundaries of a 
street in the city of Richmond ; concern- 
ing which kind of boundaries it was said, 
that ancient reputation and possession 
were entitled to intinitely more respect, 
in deciding upon the l)()undaries of the 
lots, than any experimental surveys. In 
several American cases, which liave some- 
times been cited in tavor of tlie admissi- 
bility of traditionary evidence of bound- 
ary, even though it consisted of particular 
tacts, and in cases of merely private con- 
cern, the evidence was clearly admissible 
on other grounds, either as part of the 
original res (jestw, or as the declaration of a 
party in possession, explanator}- of the 
nature and extent of his claim. In this 
class may be ranked the cases of Caufman 
V. The Congregation of Cedar Spring, 6 
Binn. 59 ; Sturgeon r. Waugh, 2 Yeates, 
476; Jackscm d. McDonald r. McCall, 10 
Johns. 377 ; Hamilton r. Minor, 2 S. >Jc R. 
70; Iligley v. Bidwell, 9 Conn. 477; Hall 
V. Gittings, 2 Ilarr. & Johns. 112; Red- 
ding r. McCubbin, 1 Har. & McHen. 84. 
In Wooster c. Butler, 13 Conn. R. 309", it 
was said by Church, J., that traditionary 
evidence was receivable, in Connrctirxt. to 
jnove tlie boundaries of land between in- 
diviilual proprietors. But this dictum 
was not called for in the case ; for the 
question was, whether there had anciently 
been a highivaij over a certain tract of ui>- 



168 



LAW OF EVIDENCE. 



[part II. 



the question is of sncli general nature, whether it bo of boundary, 
or of right of common by custom, or the Uke, evidence of reputa- 
tion is admitted only under the qualifications already stated, 
requiring competent knowledge in the declarants, or persons from 
whom the information is derived, and that they be persons Jr^ 



land ; which being a subject of common 
and general interest, was clearly within 
the rule. It has, however, subsequently 
been settled as a point of local law in that 
state, that such evidence is admissible 
to prove private boundaries. Hinny v. 
Parnsworth, 17 Conn. K. 35'), 863. In 
Poinsi/li-dtiid, reputation and hearsay are 
held entitled to respect, in a question of 
boundary, where from lapse of time there 
is great difficulty in proving the existence 
of the original landmarks. Nieman v. 
Ward, 1 Watts & Serg. 68. In Den d. 
Tate V. Southard, 1 Hawks, 45, the ques- 
tion was, wliether the Hues of the sur- 
rounding tracts of land, if made for those 
tracts alone, and not for the tract in dis- 
pute, might be shown by reputation, to be 
the " knutim and visible boundaries " of the 
latter ^tract, within the fair meaning of 
those words in tl)e statute of North Caro- 
lina, of IT'Jl, ch. 15. It was objected, that 
the boimdaries mentioned in the act were 
th.ose only, which had been expressly re- 
cognized as the bounds of the particular 
ti-act in question, by some grant or mesne 
conveyance thereof; but tlie objection was 
overruled. But in a subsequent case (Den 
d. Sasser v. Herring, 3 Dever. Law Eep. 
340), the learned chief justice admits, that 
in that state, the rules of the common law, 
in questions of private boundiuy, have 
been broken in upon. " We have," he re- 
marks, " in questions of boundary, given 
to the single declarations of a deceased 
individual, as to a line or corner, the 
•weight of common reputation, and per- 
mitted such declaratio!is to be proven ; 
tmder the rule, that, in questions of bound- 
ary, hearsay is evidence. Wliether tins 
is within the spirit and reason of tlie rule, 
it is now too late to inquire. It is the 
well-establislied law of this state. And if 
the propriety of the rule was now res 
inle;/ra, perhaps the necessity of the case, 
arising from the situation of our country, 
and the want of self-evident termini of our 
lands, would require its adoption. For, 
although it sometimes leads to falsehood, 
it more often tends to the establishment 
of truth. From necessity, we have, in 
this instance, sacrificed the principles upon 
which tlie rules of evidence are founded." 



A similar course lias been adopted in Ten- 
nessee. Beard v. Talbot, 1 Cooke, 142. 
In South Carolina, the declarations of a 
deceased surveyor, wlio originally sur- 
veyed the land, are admissible, on a ques- 
tion as to its location. Speer v. Coate, 3 
McCord, 227 ; Blytlie v. Sutherland, Id. 
258. In Kentucky, the latter practice 
seems similar to that in Nortii Carolina. 
Smith V. Nowells, 2 Littell, Rep. 159; 
Smith V. Prewitt, 2 A. K. Marsh. 155, 158. 
In New Ilrimpshire, the like evidence has 
in one case been held admissible, upon the 
alleged authority of the rule of the com- 
mon law, in 1 Phil. Evid. 182 ; but in the 
citation of the passage by the learned 
chief justice, it is plain, from the omis- 
sion of part of the text, that the restriction 
of the rule to subjects of pubUc or general 
interest was not under his consideration. 
Sliepherd v. Thompson, 4 N. Hamp. Bep. 
213, 214. More recently, however, it has 
been decided in that stale, " that the dec- 
larations of deceased persons, who, from 
their situation, appear to have had the 
means of knowledge respecting private 
boundaries, and who had no interest to 
misrepresent, may well be admitted in 
evidence." Great Falls Co. v. Worster, 
15 N. Hamp. 412, 487 ; Smith v. Powers, 
Idem. 546, 564. Subject to these excep- 
tions, the general practice in this country, 
in the admission of traditionary evidence 
as to boundaries, seems to agree with the 
doctrine of the common law as stated in 
the text. In Weeins r. Disney, 4 Har. & 
McHen. 156, the depositions admitted 
were annexed to a return of commission- 
ers, appointed under a statute of Mary- 
land, " for marking and bounding lands," 
and would seem, therefore, to have been 
admissible as part of the return, which 
expressly referred to them ; but no final 
decision was had u])on the point, the suit 
having been comiiromisod. In Buchanan 
V. Moore, 10 S. & U. 275, the point was, 
wliether traditionary evidence was ad- 
missible while the declarant was livimj. 
By the Roman law, traditionary evid- 
ence of common fame seems to have been 
deemed admissible, even in matters of pri- 
vate boundary. Mascard. De Probat. vol. 
1, p. 3'Jl, Concl. 3%. 




CHAP. VII.] OF ANCIENT POSSESSIONS. 1G9 

from particular and direct interest at the time, and are since 



deceased.^ 

§ 146. In this connection may be mentioned the sulyect of 
perambulations. The writ de perambulatione faciendd lies at com- 
mon law, when two lords are in doubt as to the limits of their 
lordships, villas, <fcc., and by consent ap})ear in chancery, and agree 
that a perambulation be made between them. Their consent 
being enrolled in chancery, a writ is directed to the sheriff to 
make the perainlnilation, by the oaths of a jury of twelve knights, 
and to set up the bounds and limits, m certainty, between the 
parties.^ These proceedings and tlie return are evidence against 
the parties and all others in privity with them, on grounds here- 
after to be considered. But the perambulation consists not only 
of this higher written evidence, but also of the acts of the persons 
making it, and their assistants, such as marking boundaries, 
setting up monuments, and the like, including their declarations 
respecting such acts, made during the transactions. Evidence 
of what these persons were heard to say upon such occasions is 
always received ; not, however, as hearsay, and under any sup- 
posed exception in favor of questions of ancient boundary, but as 
part of the res gestce, and explanatory of the acts themselves, done 
in the course of the ambit.^ Indeed, in the case of such extensive 
domains as lordships, they being matters of general interest, tradi- 
tionary evidence of connuon fame seems also admissible on the 
other grounds, which have been previously discussed.^ 
* 

1 Supra, §§ 128, 129, 130, 135, 136, 137. iel v. Wilkin, 12 EngUsh Law & Eq. 
It is held in AV-w York, that in ascertain- 547.] 

ing facts, relative to the possession of, and "- 5 Cora. Dig. 732, Pleader, 3 G. ; F. 
title to, lands, which occurred more than a N. B. [133] D. ; 1 Story on Eq. Jurisp. 
century before the time of trial, evidence § 611. See also St. 13 G. 3, c. 81, § 14; 
is adniissible which, in regard to recent St. 41 G. 3, c. 81, § 14 ; St. 58 G. 3, c. 45, 
events, could not be received ; sucii as § 16. 

histories of established credit, as to public ^ Weeks v. Sparke, 1 M. & S. 687, per 
transactions ; the recitals in public records, Ld. Ellenborough ; supra, § 108 ; Ellicott 
statutes, legislative journals, and ancient v. Pearl, 1 McLean, 2ll. 
grants and charters ; judicial records ; an- * Supra, ^ 128-137. The writ de per- 
cient maps, and depositions, and the like, amkilatione faciendd is not known to have 

i'But it is admitted that this evidence is been adopted in practice, in the United 
always to be received with great caution, States ; but in several of the states, reme- 
and with due allowance for its impertec- dies somewhat similar in principle have 
■ tion, and its capability of misleading. Bo- been provided by statutes. In some of the 
jigardus i\ Trinity Church, Kinney's Law states, provision is only made for a periodi- 
jCompend, for 1850, p. l.')',i. [See also as to cal perambulation of the boundaries of 
the admissibility of angeiit maps and sur- towns bv tiie selectmen ; LL. Maine, 
veys, Koss c. Rhoads, 15 I'eim. St. R. 163 ; Rev. 1840, ch. 5; LL. N. Hamp. 1842, ch. 
Penny Pot Landing r. Philadelphia, 16 lb. 37; Mass. Rev. Stats, ch. 15; LL. Con- 
79 ; Whiteliouse i: Bickford, 9 Foster, necticut. Rev. 1849, tit. 3, ch. 7 ; or, for a 
471; Adams t'. Stanyan, 4 lb. 405; l)an- definite settlement of controversies re- 

VOL. I. 15 



170 



LAW OF EVIDENCE. 



[part II. 



specting: them, by the public surveyor, as 
in New York, Kev. Code, Part I. oh. 8, 
tit. 0. In others, the remedy is extended 
to the boundaries of private estates. See 
Elmer's Digest, pp. 98, yj, 315, 316 ; New 
Jersey, Kev. St. 1846, tit. 22, ch. 12; Vir- 
ginia, llev. Code, 1819, vol. 1, pp. 358, 



350. A very complete summary remedy, 
in all cases of disputed houndary, is pro- 
vided in the statutes of Delaware, lie^i- 
sion of 1829, pp. 80, 81, tit. Boundaries, 
III. To perambulations niade under any 
of these statutes, the princii)les stated in 
the text, it is conceived, will apply. 



CHAl'. VIII.] OP DECLARATIONS AGAINST INTEREST. 171 



CHAPTER VIII. 

OF DECLARATIONS AGAINST INTEREST. 

[* § 147. Declarations against the interest of the person making them how regarded, 
inter alios. 

148. The interest of the party, his means of knowledge, and the want of motive 

to misrepresent, allurd the guaranty of truth. 

149. All cases do not requu-e the declaration to be against interest ; but that is the 

general rule. 

150. The rule includes written entries, even in private books, affecting questions 

involving the rights of tliird parties. 

151. Entries received where countervailed by credits. 

152. So also where the pai'ticular portion not against the interest of person mak- 

ing it. 

153. Not requisite the party could be a witness himself, or made on personal 

knowledge, or no other testimony. 

154. "What proof of the character in which the party acted is required. 

155. Entries in parish books, as to ecclesiastical dues.] 

§ 147. A THIRD exception to the rule, rejecting hearsay evidence, 
is allowed in the case of declarations and entries made hy persons 
since deceased, and against the interest of the persons making them, 
at the time when they were made. We have already seen,^ that 
declarations of third persons, admitted in evidence, are of two 
classes ; one of which consists of written entries, made in the 
course of official duty, or of professional employment ; where the 
entry is one of a number of facts, which are ordinary and usually 
connected with each other, so that the proof of one afifords a pre- 
sumption that the others have taken place ; and, therefore, a fair 
and regidar entry, such as usually accompanies facts similar to 
those of which it speaks, and apparently contemporaneous with 
them, is received as original presumptive evidence of those facts. 
And, the entry itself being original evidence, it is of no impor- 
tance, as regards its admissibility, whether the person making it 
be yet living or dead. But declarations of the other class, of 
which we are now to speak, are secondary evidence, and are received 
only in consequence of the death of the person making them. 
This class embraces not only entries in books, but all other dec- 

1 Supra, §§ 115, 116, and cases there cited. 



172 LAW OF E\1DENCE. [PART II. 

larations or statements of facts, whether verbal or in writing, and 
whether they were made at the time of the fact declared or at a 
subsequent day.^ But, to render them admissible, it must appear 
tluit the declarant is deceased; that he possessed competent 
knowledge of tlie facts, or that it was his duty to know them ; 
and that the declarations were at variance wilh his interest.^ 
When these circumstances concur, the evidence is received, leav- 
ing its weight and value to be determined by other considerations. 
§ 148. The ground upon which this evidence is received, J^ 
the extreme'itii /"•<>!, fi/i// it// nf 'It's hi/s.Jmud. The regard which men 
usually pay to tlicir own intcrcsL is deemed a sufficient security, 
both that the declarations were not made under any mistake of 
fact, or want of information on the part of the declarant, if he 
had the requisite means of knowledge, and that the matter de- 
clared is true. The apprehension of fraud in the statement is 
rendered still more improbable from the circumstance, that it is 
not receivable in evidence until after the death of the declarant ; 
and that it is always competent for the party, against whom such 
declarations are adduced, to point out any sinister motive for 
making them. It is true, that the ordinary and highest tests of 
the fidelity, accuracy, and completeness of judicial evidence are 

1 Ivat V. Finch, 1 Taunt. 141 ; Doe v. cicnt. The Sussex Peerage Case, 11 
Jones, 1 Campb. 31J7 ; Davics v. Tierce, 2 Clark & Fin. 85. In Ilolladay v. Little- 
T. R.' 53, and Ilolloway v. Kaikes, there page, 2 Munf. 31G, tlie joint declarations 
cited • Doe v. Williams, Cowp. G2I ; of a deceased shipmaster, and the living 
Peaceable v. Watson, 4 Taunt. IG ; Stan- owner, that the defendant's passage-money 
ley y. White, 14 East, 332, 341, per Ld. had been paid by the plaintiff, were held 
EUenborough ; Haddow v. Parry, 3 Taunt, admissible, as parts of the res c/esta, being 
303 ; Goss v. Watlington, 3 Brod. & Bing. 
132 ; Strode v. Winchester, 1 Dick. 397 ; 
Barker v. liay, 2 Russ. G3, 7G, and cases 

in p. 67, note; Warren v. Greenville, 2 by, 11 Johns. 70, where a receipt of pay- 

Stra. 1129 ; 2 Burr. 1071, 1072, s. c. ; Doe nient of a judgment recovered by a third 

V. Turford' 3 B. & Ad. 898, per Parke, J. ; person against the defendant was held ad- 

liarrison v. Blades, 3 Campb. 457 ; Man- missible in an action lor the money so paid, 

ning V. Leachmere, 1 Atk. 453. by the party ))aying it, he having had 

2 Short V. Lee, 2 Jac. & Walk. 464, authority to (/i-//(/.s^ the demand, and the 
488 per Sir Thomas Plumer, M. R. ; Doe receipt beiilfe a documentary fact in the 
V. Robson, 15 East, 32, 34; Iligham v. adjustment; though the attorney who 
Ridgway, 10 East, 109, per Ld. Ellen- signed the receipt was not produced, nor 
borough ; Middleton v. Melton, 10 B. & C. proved to be dead. In auditing the ac- 
317, 327, per Parke, J. ; Regina r. Worth, coimts of guardians, administrators, &c., 
4 Ad. &VA. N. s. 137, per Ld. Denman ; the course is, to admit receipts as pi-iind 
2 Smith's Leading Cases, 193, note, and /<irif sufhcient vouchers. Shearman v. 
cases there cited ; Spargo v. Brown, 9 Akins, 4 Pick. 283 ; Nichols v. Webb, 8 
B. & C. 935. The interest, with which Wheat. 32G ; Welsh v. Barrett, 15 Mass. 
the declarations were at variance, must be 380 ; Wilbur v. Selden, 6 Cowen, 162 ; 
of a pecuniun/ nature. Davis v. Lloyd, 1 Farmers Bank v. Whitehill, 16 S. & R. 
Car. & P. 276. The apprehension of pos- 89, 90; Stokes v. Stokes, 6 Martin, n. 8. 
sible danger of a prosecution is not suffi- 351. 



ontemporaneous with the time of sailing. 
This case, therefore, is not opposeil to the 
Bai-icer i?" Ray, 2 Russ. 63, 76, and cases others cited. Neither is Sherman v. Cros- 



CHAP, VIII.] OF DECLARATION'S AGAINST INTEREST. 173 

here wanting; but their place is, in some measure, supplied by 
the circumstances of the declarant ; and the iiiconveniences result- 
ing from the exclusion of evidence, having such guaranties for its 
accuracy in fact, and from its freedom from fraud, are deemed 
much greater, in general, than any which would probably be 
experienced from its admission.^ 

§ 149. In some cases, the courts seem to have admitted this evi- 
dence, without requiring jrroof of adverse interest in the declarant ; 
while in others stress is laid on the fact, that such interest had 
already appeared, aliunde^ in the course of the trial. In one case 
it was argued, upon the authorities cited, that it was not material 
that the declarant ever had any actual interest, contrary to his 
declaration ; biit this position was not sustained by the court.- 
In many other cases, where the evidence consisted of entries in 
books of account, and the liiic, they seem to have been clearly 
admissible as entries made in the ordinary course of business or 
duty, or parts of the res gesttv, and therefore as original, and not 
secondary evidence ; though the fact, that they were made against 
the interest of the person making them, was also adverted to.'^ 
But in regard to declarations in general, not being entries or acts 
of the last-mentioned character, and which are admissible only on 
the ground of having been made contrary to the interest of the 
declarant, the weight of authority, as well as the principle of 
the exception we are considering, seem plainly to require that 
such adverse interest should appear, either in the nature of the 
case, or from extraneous proof. ** And it seems not to be suffi- 



1 Phil. & Am. on Evid. 307, 308 ; 1 casion to express my opinion jnilicially 

Phil Evid. '2'M, 294; Greslej' on Evid. ujxjn it, 1 will do so ; hut I dosire not to 

221 ; [Bird v. Hueston, 10 Clnitchfield be considered as bounil by tliat, as a rule 

(Uhio), 418.] of evidence." The objection arising fronj 

■^ Barker v. Ray, 2 Russ. .63, 67, 68, the rejection of sucli evidence in tlie case 
cases cited in note ; Id. p. 76. Upon this was disposed of in another manner, 
point, Eldon, Lord Chancellor, said: — * It has been qnestionetl, whether there 
" The cases satisfy me, tliat evidence is is any ditlerence in the jirincipie of ad- 
admissible of declarations made by per- missii)ility between a written entry and 
sons who have a competent knowledge of an oral declaration of an auent, concerti- 
the subject to which such declarations re- inij his liaving received money for his 
fer, and where their interest is concerned; principal. Sec siijira, §113, note; Enrs- 
and the only doui)t I Iiave entertained don v. Cloirtr, 10 M. & W. 572; Infra, 
was as to the position, tliat you are to re- § l'>2. note. 

ceive evidence of declarati(ms where there * lliuham r. Ridsiway. 10 East, 109; 
is no interest. At a certain period of my Warren v. Greenville, 2 Stra. 112lt; ex- 
professional life, I should have said that poimded by Lord Mansfield, in 2 Burr. 
this doctrine was quite new to me. I do 1071, 1072; Gleadow v. Atkin, 3 Tyrwh. 
not mean to say more than that I still 302, 303 ; 1 Cromp. & Mees. 423," 424 ; 
doubt concerning it. When I liave oc- Short v. Lee, 2 Jac. & W. 4^'J ; Marks v. 

15* 



174 



LAW OF EVIDENCE. 



[part II. 



cient that, in one or more points of view, a declaration may l>e 
against interest, if it appears, upon the whole, that the interest 
of the declarant would be rather promoted than im})aired l)y the 
declaration.^ 

§ 150. Though the exception we are now considering is, as we 
have just seen, extended to declarations of any kind, yet it is much 
more frequently exemplified in documcutary evidence, and particu- 
larly in entries in books of account. AVhere these are books of 
collectors of taxes, stewards, bailiffs, or receivers, subject to the 
inspection of others, and in which the first entry is generally of 
money received, charging the party making it, they are, doubt- 
less, within the principle of the exception.^ But it has been 
extended still farther, to include entries in private hooks also, 
though retained within the custody of their owners ; their liability 
to be produced on notice, in trials, being deemed sufficient security 
against fraud ; and the entry not being admissible, unless it charges 
the party making it with the receipt of money on account of a third 
person, or acknoivledges the payment of money due to himself; in 
either of which cases it would be evidence against him, and there- 
fore is considered as sufficiently against his interest to bring it 
within this exception.^ The entry of a mere memorandum of an 
agreement is not sufficient. Thus, where the settlement of a pau- 



Lalicc, 3 Bing. n. c. 408, 420, per Parke, 
J. ; Barker v. Ray, 2 Russ. 63, 76; supra, 
§ 147, and cases in notes. 

1 riiil. & Am. on Evid. 320 ; 1 Phil. 
Evid. 305, 306 ; Short v. Lee, 2 Jac. & W. 
464. 

2 Barry v. Bebbington, 4 T. R. 514; 
Goss V. Watlington, 3 Brod. & Bing. 132; 
Middlcton v. Melton, 10 B. & C. 317; Stead 
V. Meaton, 4 T. R. IIG'J ; Sliort v. Lee, 2 
Jac. & W. 464 ; Wliitmarsh v. George, 8 
B. & C. 550 ; Dean, &c. of Ely v. Calde- 
cott, 7 Bini,'. 4?.3: Marks v. Lahee, 3 Bing. 
N. c. 408; Wynne i: Tyrwhitt, 4 B. & 
Aid. 376 ; De Rutzen v. Farr, 4 Ad. & El. 
62 ; 2 Smith's Leading Cas. 103, note ; 
Plaxton V. Dare, 10 B. & C. 17, 10 ; Doe 
V. Cartwright, Ry. & M. 62. An entry by 
a steward in his books, in his own favor, 
unconnected with other entries against 
liim, is held not admissible to jirove the 
facts stated in such entry. Kniglit ;;. 
Marq. of Waterford, 4 Y. & C. 284. But 
where the entry goes to show a general 
balance in his own favor, it has been ruled 
not to affect the admissibility of a particu- 
lar entry charging himself. Williams v. 



Geaves, 8 C. & P. 602. And see Mus- 
grave v. Emerson, 16 Law .Tourn. 174, 
Q. B. [An ancient book, kept among 
the records of a town, jiurporting to be the 
" Selectmen's book of accounts with the 
ti-easury of the town," is admissible in 
evidence of the fiicts therein stated ; and, 
the selectmen being at the same time as- 
sessors, an entry in such book of a credit 
by an order in tavor of the collector for a 
discount of a particular individual's taxes 
was held to be evidence of the abatement 
of the tax of such individual. Boston v. 
Weymouth, 4 Cush. GixS.) 

='■ Warren o. (Jreenville, 2 Stra. 1029; 
2 Burr. 1071, 1072, s. c. ; Higham v. 
Ridgway, 10 East, 109 ; Middleton v. Mel- 
t(m, 10 Barn. & Cress. 317. In those 
states of the Union in which the original 
entries of tlie party, in his own account 
books, may be evidence for him, and 
where, therefore, a false entry may some- 
times amount to the crime of forgery, 
there is much stronger reason for admit- 
ting the entries in evidence against third 
persons. See also Iloare v. Coryton, 4 
Taunt. 560. 



CHAP. VIII.] OF DECLARATIONS AGAINST INTEREST. 



175 



per was attempted to be proved by showing a contract of hiring 
and service ; the books of liis deceased master, containing minutes 
of his contracts with his servants, entered at the time of contract- 
ing with them, and of subsequent payments of their wages, were 
hehi inadmissible ; for the entries were not made against the wri- 
ter's interest, for he woukl not be Hablc unless the service were 
l)erformcd, nor were they made in the course of his duty Or 
employment,^ 

§ 151. Where the entry is itself the only evidence of the charge, 
of which it shows the subsequent liquidation, its admission has 
been strongly opposed, on the ground, that, taken together, it is 
no longer a declaration of the party against his interest, and may 
be a declaration ultimately in his own favor. This point was* 
raised in the cases of Higham v. Bidgway, where an entry was 
simply marked as paid, in the margin ; and of Rowe v. Brenton, 
which was a debtor and creditor account, in a toller's books, 
of the money received for tolls, and paid over. But in neither of 
these cases was the objection sustained. In the former, indeed, 
there was evidence aliunde, that the service charged had been 
performed; but Lord Ellenborough, though he afterwards ad- 
verted to this fact, as a corroborating circumstance, first laid 
down the general doctrine, that " the evidence was properly ad- 
mitted, upon the broad principle on which receivers' books have 
been admitted." But in the latter case there was no such proof; 
and Lord Tenterden observed, that almost all the accounts wdiich 
were produced were accounts on both sides ; and that the objec- 
tion would go to the very root of that sort of evidence. Upon 
these authorities, the admissibility of such entries may perhaps be 
considered as established.^ And it is observable, in corroboration 
of their admissibility, that in most, if not all of the cases, they 
appear to have been made in the ordinary course of business or 
of duty, and therefore were parts of the res gestce.^ 



lA' 



1 Eegina v. Worth. 4 Ad. & El. n. s. 
132. 

2 Higham v. Ridgway, 10 East. 109; 
Rowe V. Brenton, 3 Man. & R. 2(J7 ; 2 
Smith's Leading Cas. 196, note. In Wil- 
liams V. Geaves, 8 C. & P. 592, the entries 
in a deceased steward's account were ad- 
mitted,' though the halance of tlie account 
was in his favor. See also Doe v. Tyler, 
4 M. & P. 377, there cited. Doe v. Whi^ 
comb, 15 Jur. 778. 



3 In Dowe v. Vowles, 1 M. & Rob. 261, ! 
the evidence offered was merely a trades- 
man's bill, receipted in full ; which was 
properly rejected by Littledale, J., as it 
liad not the merit of an original entry; for 
though the receipt of payment was against 
the party's interest, yettlie main fact lo- 
be established was the performance of the ' 
services charged in the bill, the appear- 
ance of which denoted tluit better evi- 
dence existed, in the original entry in the 



lA 



176 LAW OF EVIDENCE. [PART II. 

§ 152. It has also been qiicstioucd, whether the entry is to be 
received in evidence of matters, which, though forming part of the 
declaration, were not in themselves against the interest of the declar- 
ant. This objection goes not only to collateral and independent 
facts, but to the class of entries mentioned in the preceding 
section ; and would seem to be overruled by those decisions. But 
the point was solemnly argued in a later case, where it was 
adjudged, that though, if the point were now for the first time 
to be decided, it would seem more reasonable to hold, that the 
memorandum of a receipt of payment was admissible only to 
the extent of proving that a payment had been made, and the 
account on which it had been made, giving it the effect only of 
verbal proof of the same payment; yet, that the authorities had 
gone beyond that limit, and the entry of a payment against the 
interest of the party making it had been held to have the effect 
of proving the truth of other statements contained in the same 
entry, and connected with it. Accordingly, in that case, where 
three persons made a joint and several promissory note, and 
a partial payment was made by one, which was indorsed upon the 
note in these terms: "Received of W. D. the sum of £280, on 
account of the within note, the <£300" (which was the amount 
of the note) '■'■having been originaUy advanced to E. ^," — for 
which payment an action was brought by the party paying, as 
surety, against E. H., as the principal debtor; it was held, upon 
the authority of Higham v. Ridgway, and of Doe v. Mobson, that 
the indorsement, the creditor being dead, was admissible in evi- 
dence of the whole statement contained in it ; and consequently, 
that it was primd facie proof, not only of the payment of the 
money, but of the person who was the principal debtor, for whose 
account it was paid ; leaving its effect to be determined by the 

jiity-^ 

tradesman's book. The same objection, for the p urpose of getting a^ischarge."! 

indcorl, was taken bore, by the learned See a\so infra, § 152^ ' f 

counsel for the defendant, as in the cases i Davies v. Humphreys, 6 Mees. & 

of Higham r. liidirwa}', an<l of Howe v. Welsh. 158, 166. See also Stead v. Hca- 

Brenton, namely, that the proof, as to in- ton, 4 T. li. 669 ; Roe v. Ilawlings, 7 

terest, was on both sides, and neutralized East, 279 ; Marks v. Lahee, 3 Bing. n. c. 

itself; but the olijeetion was not particu- 408. The case of Chambers v. liernas- 

larly noticed i)y Littk'dale, J., before whom coni, 1 Cr. & Jer. 451, 1 Tyrwh. 335, 

it was tried; thoufrh the same learned which may seem ojjpo.sed to these decis- 

judge afterward intimated his oiiinion, by ions, turned on a dilierent principle.' That 

observing, in rejjly to an olijection simi- case involved the effect of an under- 

lar in princi])le, in Rowe v. Brenton, that sheriff's return, and the extent of the cir- 

"a man is not likely to charge himself, cumstances whieli the sheriff's retm^n 



CHAP. VIII.] OF DECLARATIONS AGAINST INTEREST. 177 

§ 153. In order to render declarations against interest admissible, 
it is not necessary that the declarant should have been competent, if 
living, to testify to the facts contained in the declaration ; the 
evidence being admitted on the broad ground, that the declaration 
was against the interest of the party making it, in the nature of 
a confession, and, on that account, so probably true as to justify 
its reception.^ For the same reason it does not seem necessary 
that the fact should have been stated on the personal knowledge 
of the declarant.^ Neither is it material whether the same fact 
is or is not provable by other witnesses who are still living.^ 
Whether their testimony, if produced, might be more satisfactory, 
or its non-production, if attainable, might go to diminish the 
weight of the declarations, are considerations for the jury, and do 
not affect the rule of law. 

§ 154. But where the evidence consists of entries made by 
pereons acting for others, in the capacity of agents, stewards, or 
receivers, some proof of such agency is generally required, pre- 
vious to their admission. The handwriting, after thirty yjars,^ 
need not be proved.^ In regard to the proof of official. character, 
a distinction has been taken between public and private offices, to 
the effect, that where the office is public and must exist, it may 

ought to include, and as to which it would declaration of a deceased agent or officer, 
be conclusive evidence. It seems to have made while he was paying over money to 
been considered, that the return could his principal or superior, and desigjiating 
properly narrate only those things which the person fi'om whom he received a par- 
it was the officer's duty to do ; and, there- ticular sum entered by him in his books, 
fore, though evidence of the fact of the is admissible in evidence against that per- 
ari-est, it was held to be no evidence of son, qucere ; and see Fursdon v. Clogg, 10 
the place where the arrest was made, M. & W. 572. The true distinction, more 
tliough this was stated in the return. Tlie recently taken, is this : that where the 
learned counsel also endeavored to main- entry is admitted as being against the in- 
tain the admissibility of the under-sheriff's terest of the party making it, it carries 
return, in proof of the place of arrest, as a with it the whole statement ; but that 
written declaration, by a deceased person, wliere it was made merely in the course 
of a fact against his interest ; but the court of a man's duty, it does not go beyond the 
held that it did not belong to that class of matters which it was his duty to enter, 
cases. 1 Tj-rwh. 333, per Bayley, B. Percival v. Nanson, 7 Eng. Law & Eq. R. 
Afterwards, this judgment was affirmed 538, per Pollock, C. B. ; 7 Exch. Eep. 1, 
in the Exchequer Chamber, 4 Tyrwh. s. c. 

631 ; 1 Cr. Mees. & Ros. 347, 868 ; the i Doe v. Eobson, 15 East, 32 ; Short v. 

court being " all of opinion, that whatever Lee, 2 Jac. & W. 464, 489 ; Gleadow 

effect may be due to an entry, made in the v. Atkin, 1 Cr. & Mees. 410 ; Middleton v. 

course of any office, reporting liicts neces- Melton, 10 B. & C. 317, 326 ; Bosworth 

sary to the performance of a duty, the v. Crotchet, Ph. & Am. on Evid. 348, n. 
statement of other circumstances, however ^ Crease v. Barrett, 1 Cr. Mees. & R. 

naturally they may be thought to find a 919. 

place in the narrative, is no proof of those ^ Middleton v. Melton, 16 B. & C. 327, 

circumstances." See also Thompson v. per Parke, J. ; Barry v. Bebbington, 4 T. 

Stevens, 2 Nott & McC. 493; Sherman v. R. 514. 
Crosby, 11 Johns. 70. Whether a verbal * Wynne v. Tyrwhitt, 4 B. & Aid. 376, 



178 LAW OF EVIDENCE. [pART II. 

always be presumed that a person who acts in it has been regu- 
hirly appointed ; but that where it is merely private, some pre- 
liminary evidence must be adduced of the existence of the oflfice, 
and of the apix)intment of the agent or incumbent.^ Where the 
entry, by an agent, charges himself in the first instance, that fact 
has been deemed sufficient proof of his agency ;2 but where it 
was made by one styling himself clerk to a steward, that alone was 
considered not sufficient to prove the receipt, by either of them, 
of tli(! money therein mentioned.^ Yet where ancient books con- 
tain strong internal evidence of their actually being receivers' or 
agents' books, they may, on that ground alone, be submitted to 
the jury.* Upon the general question, how far mere antiquity 
in the entry will avail, as preliminary proof of the character of 
the declarant, or party making th e entry ; and how far the cir- 
cumstances, which are necessary to make a document evidence, 
must be proved aliunde, and cannot be gathered from the docu- 
ment itself, the law does not seem perfectly settled.-'^ But where 
the transaction is ancient, and the document charging the party 
with the Keceipt of money is apparently genuine and fair, and 
comes from the proper repository, it seems admissible, upon the 
general principles already discussed in treating of this exception.'^ 
§ 155. There is another class of entries admissible in evidence, 
which sometimes has been regarded as anomalous, and- at others 
has been deemed to fall witliin the princii)le of the present excep- 
tion to the general rule ; namely, the private books of a deceased 

1 Short V. Lee, 2 Jac. & W. 464, 468. than a hundred years old. Davies v. 

2 Doe t'. SUicy, 6 Car. & P. 139. JNIorgan, 1 Cr. & Jer. 587, 590, 5'..»3, per 

3 l)e Kutzen v. Farr, 4 Ad. & El. 53. Ld. I.yndhurst, C. B. In anotiicr t-ase, 
And see Doe r. Wittcomb, 15 Jur. 778. which was a bill for tithes, ajjainst which 

* Doe V. Ld. Geo. Thynne, 10 East, 206, a moihis was alletjcd in defence, a receipt 

210. of more than fifty years old was offered, 

^ In one case, where the point in issue to prove a money payment tlierein men- 
was the existence of a custom for the e.\- tioned to have been received for a pre- 
clusion of foreijrn cordwainers from a cer- scription rent in lieu of tithes ; but it was 
tain town ; an entry in the corporation held inadmissible, without also showing 
books, signed by one acknowlcdujinp: him- who the jiarties were, and in what charac- 
self not a freeman, or free of the corpora- tertliey stood. Manby r. Curtis, 1 Trice, 
lion, and promisinir to pay a fine assessed 225, jier Tliompson, C. B., Craliam, B., 
on him for breach of tiie custom; and and IJichards, B. ; Wood, B., dissentiente. 
another entry, signed bv two others, statin-; '^ Sec. Phil. & Am. on Evid. 331, n. (2) ; 
tiiat they had distrained and api)rai.sed 1 Phil. Evid. 316, n. (6). and cases there 
nine pairs of shoes from anotlier person, cited ; Fenwick v. Bead, 6 Madd. 8, per 
for a similar ottence ; were severally held Sir J. Leach, Vice-Ch. ; Bertie v. Beau- 
inadmissible, witlioiit previously oiferins mont, 2 Price, 307; Bp. of Meath v. Mar- 
some evidence to show by whom the en- quis of Winchester, 3 Binj;. n. c. 183, 
tries were subscribed, and in what situa- 2(13; [Doe v. Michael, 24 Eng. Law and 
tion the several parties actually stood; Eq. 11. 180. | 
although the latest of the entries was more 



CHAP. VIII.] OF DECLARATIONS AGAINST INTEREST. 179 

rector or vicar, or of an ecclesiastical corporation aggregate, con- 
taining entries of the receipt of ecclesiastical dues, when admitted 
in favor of their successors, or of parties claiming the same interest 
as the maker of the entries. Sir Thomas Plumer, in a case before 
hira,^ said : " It is admitted, that the entries of a rector or vicar 
are evidence for or against his successors. It is too late to argue 
upon that rule, or upon what gave rise to it ; whether it was the 
cursus jScaccarii, the protection of the clergy, or the peculiar 
nature of property in tithes. It is now the settled law of the land. 
It is not to be presumed that a person, having a temporar y interest 
only, will insert a falsehood in his hook from which he can derive^iio, 
advantage. Lord Kenyon has said, that the rule is an exception ; 
and it is so ; for no other proprietor can make evidence for those 
who claim under him, or for those who claim in the same right 
arid stand in the same predicament. But it has been the settled 
law, as to tithes, as far back as our research can reach. We 
must, therefore, set out from this as a datum ; and we must not 
make comparisons between this and other corporations. No cor- 
poration sole, except a rector or vicar, can make- evidence for his 
successor." But the strong presumption that a person, ha\'ing 
a temporary interest only, will not insert in his books a falsehood, 
from which he can derive no advantage, which evidently and 
justly had so much weight in the mind of that learned judge, 
would seem to bring these books within the principle on which 
entries, made either in the course of duty, or against interest, are 
admitted. And it has been accordingly remarked, by a writer \ 
of the first authority in this branch of the law, that after it has ' 
been determined that evidence may be admitted of receipts of '. 
payment, entered in private books, by persons who are neither 
obliged to keep such books, nor to account to others for the money 
received, it does not seem any infringement of principle to admit 
these books of rectors and vicars. For the entries cannot be used 
by those who made them ; and there is no legal privity between 
them and their successors. The strong leaning, on their part, in 
favor of the church, is nothing more, in legal consideration, than 
the leaning of every declarant in favor of his own interest, affect- 
ing the weight of the evidence, but not its admissibility. General 
observations have occasionally been made respecting these books, 

1 Short V. Lee, 2 Jac. & W. 177, 178. 



ISO LAW OF EVIDENCE. [PART II. 

"which may seem to authorize the admission of any kind of state- 
ment contained in them. But such books are not admissible, 
except where the entries contain receipts of money or ecclesias- 
tical dues, or are otherwise apparently prejudicial to the interests 
of the makers, in the manner in whicli entries are so considered 
in analogous cases.^ And proof will be required, as in other 
cases, that the writer had authority to receive the money stated, 
and is actually dead; and that the document_came out of the 
proper custod y.^ 

iPhil. & Am. on E^^d. 322, 323, and 2 Qresley on Evid. 223,224; Carringtou 

cases in notes (2) and (3); 1 Phil. Evid. v. Jones,"'2 Sim. «& Stu. 135, 140; Perigal 

308, notes. (1), (2) ; Ward v. Pomfret, 5 v. Nicholson, 1 Wightw. 63. 
Sim. 476. 



CHAP. IX.] OF DYING DECLARATIONS. 181 



CHAPTER IX. 

OF DYING DECLARATIONS. 

[* § 156. Declarations made in immediate prospect of death admissible, oa trials for 
homicide. 

157. The person must have been competent to testify ; but being an accomplice 

will not exclude the declarations. 

158. The declarations must be made imder the apprehension of almost immediate 

death. 

159. Can only be received to the extent the person might have testified, and must 

be complete. 

160. Competency of the evidence determined by court ; its weight by jm-y. 

161. K reduced to writing, it must be produced if j)ossible. 

161«. But if resting in memory, witness may testify to substance of declaration. 
1616. The declaration may be by signs as well as words.] 

§ 156. K fourth exception to the rule, rejecting hearsay evidence, 
is allowed in the case of dying declarations. The general principle, 
on which this species of evidence is admitted, was stated by Lord 
Chief Baron Eyre to be this, — that they are declarations made in 
extremity, when the party is at the point of death, and when 
every hope of this vs^orld is gone ; when every motive to falsehood 
is silenced, and the mind is induced, by the most powerful con- 
siderations, to speak the truth. A situation so solemn and so' 
awful is considered by the law, as creating an obligation equal to 
that which is imposed by a positive oath in a court of justice.^ 
It was at one time held, by respectable authorities, that this 
general principle warranted the admission of dying declarations 
in all cases, civil and criminal; but it is now well settled jthat 
they are admissible, as such, only in cases of homicide, " where 
the" death of the deceased is the subject of the "charge, and the 
circumstances of the death are the subject of the dying declara- 

1 Eex V. Woodcock, 2 Leach's Cr. Cas. per dicere verum. Mascard. De Probat. 

256, 567 ; Drummond's case, 1 Leach's Concl. 1080. In the earliest reported case 

Cr. Cas. 378. The rule of the Roman on this subject, the evidence was admitted 

Civil Law was the same. Morti proxi- without objection, and apparently on this 

mum, sive moribundum, non prsesumen- general ground. Eex v. Reason et ah, 6 

dum est mentiri, nee esse immemorem State Tr. 195, 201. The rule of the Com- 

salutis asternae; licet non prEesumatm- se?n- mon Law, imder wliich this evidence is 
VOL. I. 16 



182 



LAW OF EVIDENCE. 



[part II. 



ioiis."^ The reasons for thus restricting it may be, tliat the 



credit is not in all cases due to the declarations of a dying person ; 
fur his body may have survived the powers of his mind ; or his 
recollection, if his senses are not impaired, may not be perfect ; 
or, for the sake of ease, and to be rid of the importunity and 
annoyance of those aruuud him, he may say, or seem to say, what- 
ever they may choose to suggest.^ These, or the like considera- 
tions, have been regarded as counterbalancing the force of tiio 
general principle above stated; leaving this exception to stand 
only upon the ground of the public necessity of preserving the 
lives of the community, by bringing manslayers to justice. For 
it often happens, that there is no third person present to be an 
eyewitness to the fact ; and the usual witness in other cases of 
felony, namely, the party injured, is himself destroyed.^ But 
in thus restricting the evidence of dying declarations to cases of 






admitted, is held not to be repealed by, 
nor inconsistent witli, those express pro- 
visions of constitutiojial law, whicli secure 
to the person accused of a crime, the rij^ht 
to be confronted with the witnesses aj^ainst 
him. Anthony v. The State, 1 Meigs, 
iitiS; Woodsides v. The State, 2 How. 
Mis. R. 655; [Campbell v. State, 11 Geo. 
353.1 

1 Rex V. Mead, 2 B. & C. G05. In this 
case the prisoner had been convicted of 
perjury, and moved for a new trial, be- 
cause convicted against the weight of evi- 
dence ; after wliich he shot the ])rosecutor. 
Upon showing cause against the rule, the 
counsel for the prosecution offered the dy- 
ing declarations of tlie prosecutor, relative 
to the fact of [jerjury ; but the evidence 
was adjudged inadmissible. The same 
point wiis ruled by Bayley, J., in Rex 
V. llutcliinson, who was indicted for ad- 
ministering poison to a woman pregnant, 
but not quick with child, in order to pro 
cure abortion. 2 B. & C. t)08, note. This 
doctrine was well considered, and ap- 
proved in Wilson v. Boerem, 15 Johns. 
286. In Rex v. Lloyd et al.,_ 4 C. ^ P. 
238, such declarations were rejected on a 
trial for robbery. Upon an inilictment for 
the murder of A, by jioison, which was 
also taken by B, wlio died in consequence, 
it was held, "that tlie dying declarations of 
B were admissil)le, though the prisoner 
wa.s not indictetl for murdering her. Rex 
V. Baker, 2 .M. & Bob, 53 ; [State r. Cam- 
eron, 2 Chan.l. 172. j [ * Dailey v. N. Y. & 
N. H. Railw. 32 (.'onn. In some of the 
states, dying declarations have been re- 
ceived in civil causes. Malaun v. Ammon, 
1 Grant's Cases (Benn.), 123. But it has 



arisen from a misapprehension of the true 
grounds upon which the declarations" are - 
receivable as testimony. It is not received I 
upon any other ground than that of ne- 1 
cessity, in order to prevent murder going | 
unpunished. What is said in the books 5 
about the situation of the declarant, lie' 
being virtually under the most solemn 
sanction to speak the truth, is far from 
presenting the true gr(iun<l of the admis- 
sion, for if that were all that is requisite 
to render the declarations evidence, the 
apprehension of death should have the 
same effect, since it would place the de- 
clarant under the same restraint as if the 
apprehension were founded in feet. But 
both must concur, both the fact and the 
apprehension of being in cxtremix. And, 
although it is not indis])ensable tiiat tiiere 
should be no other evidence of the same 
facts, the rule is, no doubt, based upim the 
presumption, that iii the majority of cases 
there will be no other equally satisfactory 
proof of the same facts. This presumjition 
and the consequent probability of the crime 
going unpunished, is unquestionably the 
chief ground of this exception in the Law 
of Evidence. And the great reason why- 
it could not be received generally, as evi- 
dence in all cases where the facts involved 
should thereafter come in question, seems 
to be that it wants one of the most iin])or- 
fcmt and indispensable elements of testi- 
mony, tliat of an opjiortunity for cross- 
examination by the party against whom 
it is oflered.] 

■^ Jackson v. Kniffen, 2 Johns. 31, 35, 
per Livingston, J. 

8 1 East, B. C. 353. 



y 



CHAP. IX.] OF DYING DECLARATIONS. 183 

trial for homicide of the declarant, it should be observed, that 
this applies only to declarations offered on the sole ground, that 
they were made in extremis ; for where they constitute part of the 
res gestce, or come within the exception of declarations against 
interest, or the like, they are admissible as in other cases ; irre- 
spective of the fact that the declarant was under apprehension of 
death.^ 

§ 157. The persons, whose declarations are thus admitted, are 
considered as standing in the same situation as if they were 
sworn ; tlie danger of impending death being equivalent to the 
sanction of an oath. It follows, therefore, that where the declar- 
ant, if living, would have been incompetent to testify, by reason 
of infamy, or the like, his dying declarations are inadmissible .^ 
And, as an oath derives the value of its sanction from the religious 
sense of the party's accountability to his Maker, and the deep 
impression that he is soon to render to Him the final account; 
wherever it appears that the declarant was incapable of this reli- 
gious sense of accountability, whether from ini^ ^^^ imbecility 
of mind, or tender age, the declarations are alike inadmissible.^ 
On the other hand, as the testimony of an accomplice" is' aclmis- 
sible, against his fellows, the dying declarations of a particeps 
criminis in an act, which resulted in his own death, are admissible 
against one indicted for the same murder.* 

§ 158. It is essential to the admissibility of these declarations, 
and is a preliminary fact, to be proved by the party offering them 

1 Supra, §§ 102, 108, 109, 110, 147, 148, petrators was rejected... See also Eegina 

149. To some of these classes may be re- I'TlffewetF; T "Car. iFTlarshm. 534. [See 

ferred the cases of Wright i'. Littler, 3 State r. Shelton, 2 Jones Law (N. C.) 360; 

Bm-r. 1244; Aveson v. Ld. Kimiaird, 6 State v. Peace, 1 lb. 251 ; Oliver?;. State, 

East, 188 ; and some others. It was once 17 Ala. 587. j 

tliought that the dying declarations of tlie ^ Rex v. Drummond, 1 Leach's Cr 

subscribing witness to a forged instrument Cas. 378. 

were admi"ssible to impeach it ; but such » ^px v. Pike, 3 C. & P. 598 ; Eegina 

evidence is now rejected, for the reasons v. Perkins, 9 C. & P. 395; 2 Mood. Cr. C. 

already stated. Supra, § 126. See Sto- 135 ; 2 Russell on Crimes, 688. 
bart V. Dryden, 1 Mees. & W. 615, 627. * Tinckler's case, 1 East, P. C. 354.|> 

In Regina r. Megson et al, 9 C. «& P. 418, [Where the declarations have been put in(t 

420, the prisoners were tried on indict- evidence, and an attempt has been made^ 

ments, one for the murder of Ann Stew- by the other side to destroy the effect of | 

art, and the other for a rape upon her. sudi declarations by showing the bad char- ■ 

In the former case, her declarations were acter of the deceased, the in-osecution, for,1. 

rejected, because not made in extremis; the purpose of corroborating the evidence,', 

and in 'the latter so much of them as may prove that the deceased made other!: 

showed that a dreadful outrage had been declarations to the same purport, a fewj 

perpetrated upon her was received as part moments alter he was struck, although it;; 

of the outrage itself, being, in contempla- did not appear that he was then under the* 

Ition of law, contemporaneous; but so apprehension of immediate death. State! 

much xs related to the identity of tlie por^ v. Thomason, 1 Jones, Law (N. C.) 274.] 



184 LAW OF EVIDENCE. [PART II. 

ill evidence, that tlicy were made under a sense of impending death; 
but it is not necessary tliat, tliey should Tie s"faEed,'aOTre tiincTto 
'be*lo"madc. It is enough, if it satisfactorily appears, in any 
lnode7~that tliey were made under that sanction ; wliether it bo 
dh-ectly proved by the exi)ress language of the declarant, or be in- 
ferred from liis evident danger, or the opinions of tlie medical 
or other attendants, stated to him, or from his conduct, or other 
circumstances of the case, all of which are resorted to, in order 
to ascertain the state of the declarant's mind.^ The length of 
time which elapsed between the declaration and the death of the 
declarant furnishes no rule for the admission or rejection of 
the evidence ; though, in the absence of better testimony, it may 
serve as one of the exponents of the deceased's belief, that his 
dissolution was or was not impending. It_is th e impression 
of almost immediate dissolution, and not the rapid succession of 
death^ln pMJnt of fart, that renders lbhe_ testimony admissible.^ 
Therefore, where it appears that the deceased, at the time of the 
declaration, had any expectation or hope of recovery, however 
slight it may have been, and though death actually ensued in an 
hour afterwards, the declaration is inadmissible.^ On the other 
hand, a belief that he will not recover is not in itself sufficient, 
unless there be also the prospect of " almost immediate dissolu- 
tion." * 

1 Rex V. Woodcoclc, 2 Leach's Cr. Cas. 9 ; Logan v. Tlie State, Id. 24 ; [Oliver v. 

667 ; Jolm's case, 1 East, P. C. 357, 358 ; State, 17 Ala. 587 ; Johnson v. State, lb. 

Rex V. Bonner, 6 C. & P. 386 ; Hex v. 618.] 

Van Butchell, Id. 631 ; Rex v. Mosley, 1 '^ So ruled in Welborn's case, 1 East, 

Moody's Cr. Cas. 97 ; Rex v. Spilsbflry, 7 P. C. 358, 359 ; Rex v. Christie, 2 Iluss. 

C. & P. 187, per Coleridge, J.; Reg. v. on Crimes, 685; Rex v. Hay ward, 6 C. & 

Perkins, 2 Mood. Cr. Cas. 135 ; Mont- P. 157, 160 ; Rex v. Croclcett, 4 C. & P. 

gomery v. The State, 11 Ohio, 424; Dunn 544; Rex v. Fagent, 7 C. & P. 288. [The 

?7. Tlie State, 2 Pike, 229 ; Commonwealth declarations made by one in Ijis last ill- 

V. M'Pike, 3 Cush. 181 ; Reg. v. Moouey, ness, who said he should die, but whom 

5 Cox, C. C. 318. the physician liad just told he might re- 

■■^ In Woodcock's case, 2 Leach's Cr. cover, are not admissible as dying declara- 

Cas. 563, the declarations were made tions. By Harris, J. People v. Robinson, 

forty-eight hours before death ; in Tinck- 2 Parker, Cr. R. 235. See People v. Kiiick- 

ler's case, 1 East, P. C. 354, some of them erbocker, 1 lb. 302 ] 

were maile ten days before death ; and in * Such was the language of HuUock, 

Rex V. Mosley, 1 Mood. Cr. Cas. 97, tliey B., in Rex v. Van Butcliell, 3 C. & P. 629, 

were made eleven days before death ; and 631. See ace. Woodcock's case, 2 Leach's 

were all received. In this last instance, it Cr. Cas. 567, per Ld. C. B. Eyre; Hex v. 

appeared that the surgeon did not think Boinier, (5 C. & P. 386 ; Commoiiwealtli v. 

the case hopeless, and told the patient so; King, 2 Virg. Cases, 78; Commonwealth 

hut that the patient thought otherwise, v. Gibson, Id. Ill* Commonwealth v. 

See also Regina i-. Howell, 1 Denis. Cr. Vass, 3 Leigh, R. 786 ; The State v. 

Cas. 1. In Rex v. Bonner, 6 C. & P. 386, Poll, 1 Hawks, 442; Regina v. Perkins, 9 

they were made three days before death. C. & P. 395; 2 Mood. Cr. Cas. 135, s. c; 

And see Smith v. The State, 9 Humph. Rex v. Ashton, 2 Lewin's Cr. Cas. 147. 



CHAP. IX.] OF DYING DECLARATIONS. 185 

§ 159. The declarations of the deceased are admissible only to 
those things^ to which he would have been competent to testify, if sworn 
in the cause. They must, therefore, in general, speak to facts 
only, and not to mere matters of opinion ; and must be confined 
to what is relevant to the issue. But the right to oifer them in 
evidence is not restricted to the side of the prosecutor ; tliey are f 
equally admissible in favor of the party charged with the death. ^ J 
It is not necessary, however, that the examination of the deceased | 
should be conducted after the manner of interrogating a witness i 
in the cause ; though any departure from this mode may aifect i 
the validity and credibility of the declarations. Therefore it is | 
no objection to their admissibility, that they were made in answer » 
to leading questions, or obtained by pressing and earnest solicita- | 
tion.^ But wdiatever the statement may be, it must be complete 
in itself; for, if the declarations appear to have been intended by 
the dying man to be connected with and qualified by other state- 
ments, which he is prevented by any cause from making, they 
will not be received.^ 

§ 160. The circumstances under which the declarations were 
made are to be shown to the judge; it being his province, and not 
that of the jury, to determine whether they are admissible. In 
Woodcock'' s case, the whole subject seems to have been left to the 
jury, under the direction of the court, as a mixed question of law 
and fact ; but subsequently it has always been held a question 
exclusively for the consideration of the court ; being placed on 
the same ground with the preliminary proof of documents, and 
of the competency of witnesses, which is always addressed to the 
court.* But after the evidence is admitted, its credibility is 
entirely within the province of the jury, who of course are at 

1 Bex V. Scaife, 1 Mood. & Ro. 551; 2 v. Hucks, 1 Stark. E. 521, 523, to have 
Lewin's Cr. Cas. 150, s. c. been so resolved by all the judges, in a 

2 Eex V. Fas;ent, 7 C. & P. 238 ; Com- case proposed to them. Welborn's case, 
monwealth v. Vass, 3 Leigh, R. 786 ; Rex 1 East, P. C. 300; John's case, Id, 358 ; 
V. Reason e<aZ., 1 Stra. 499; Rex v. Wood- Rex v. Van Butchell, 3 C. & P. 629; Rex 
cook, 2 Leach's Cr. Cas. 563 ; [OHver v. v. Bonner, 6 C. & P. 386 ; Rex v. Spils- 
State, 17 Ala. 587.] bury, 7 C. & P. 187, 190; The State v. 

3 3 Leigh, R. 787. [Where the de- Poll, 1 Hawks, 444 ; Commonwealth v. 
ceased being asked " who shot him," re- Murray, 2 Ashm. 41; Commonwealth 
plied " the prisoner," the declaration is v. WiUiams, Id. 69 ; Hill's case, 2 Gratt. 
complete, and cannot be rejected because, 594; McDaniel v. The State, 8 Sm. & M. 
from weakness and exhaustion, he was 401. Where the dying deponent declared 
imable to answer anotlier question pro- that the statement was "as nigh right as 
pounded to him innnediately afterwards, he could recollect," it was held admissible. 
McLean v. State, 16 Ala. 672.] The State v. Ferguson, 2 Hill, S. Car. R. 

4 Said, per Ld. Ellenborough, m Rex 619 ; [State v. Howard, 32 Vt. 380.] 

16* 



186 LAW OF EVIDENCE, [PART II. 

liberty to weigli all the circumstances under which the declara- 
tious were made, mcluding those already proved to the judge, 
and to give the testimony only such credit as, upon the whole, 
they may think it deserves.^ 

§ 101. If the statement of the deceased was committed to writing 
and signed hy hi/ii, at the time it was made, it has been held 

L essential that the writing should be produced, if existing; and 
that neither a copy, nor parol evidence of the declarations, could 

I l)e admitted to supply the omission.^ But whore the declarations 
had been repeated at different times, at one of which they were 
made under oath, and informally reduced to writing by a witness, 

I and at the others they were not, it was held that the latter might 
be proved by parol, if the other could not be produced.^ If the 
deposition of the deceased has been taken under any of the stat- 
utes on that subject, and is inadmissible, as such, for want of 
compliance with some of the legal formalities, it seems it may 
still be treated as a dying declaration, if made in extremis.^ 

§ 161a. It has been held that the substance of the declar ation^ 
may be g iven in eyT^^enceTTriSfie witness is not able to state the 
precise laniiuiiLi-i; uscd.^ And we have already seen that it is no 
objection in tin ir admissibility, that they were obtained in answer 
to questions asked by the bystanders, nor that the questions 
themselves were leading (juostions ; and that, if it appear that the 
declarations were intended by the dying person to be connected 
with and qualified by other statements, material to the complete- 
ness of the narrative, and that this was prevented by interruption 
or death, so that the narrative was left incomplete and partial, the 
evidence j^ inadmissible.^ 

1 2 Stark. Evid. 263 ; Phil. & Am. on 2 Rpx v. Gay, 7 C. & P. 230; Trowter's 

Evid. 304; Koss v. Gould, 5 Greenl. 204 ; case, P. 8 Geo. I. B. R. 12 Vin. Abr. 118, 

Vass's case, 3 Leif^li, 11. 794. See also 119; Leach c Simpson e^«/., 1 Law & Eq. 

the remarks of Mr. Evans, 2 Poth. on R. 58; 5 M. & W. 309; 7 Dowl. P. C. 13; 

(>l)lij.(. 2uij (294), A])p. No. 16, who thinks 3 Jur. 654, s. c. ; [State v. Cameron, 2 

lliat the jury shoulil he directed, ]irevious Ciiand. 172.] 

T.I) considering tlie eftect of the evidence, '^ Hex v. Reason et nl., 1 Str. 499, 500. 

to determine, — 1st, Wliether the deceased * Rex v. Woodcock, 2 Leach, Cr. Cas. 

was really in such circumstances, or used 563 ; Rex v. Callaghan, McNally's Evid. 

sucii expressions, from which the appre- 385. 

hiMision in question was inferred; — 2d, ^ Montg<miory v. Tlie State, 11 Ohio, 

Whether tlie inroreiice deduced from such 424; Ward r. The State, 8 Blackf 101. 

circumstances or ex])ressi(jns is correct; — And see /;;//(/, § 165. [Tlie substance of 

3d, Wliether the deceased did make the the declarations is sufficient, and it may 

declarations alleged against the accused; be given, if need be, by an interpreter. 

— and 4th, Wliether tliose declarations are Starkey v. People, 17 111. 17.] 
to he admitted, as sincere and accurate. •* Vass's case, 3 Leigh, R. 786; supra, 

Trant's case, McNally's Evid. 385. § 159. 



CHAP. IX.] OF DYING DECLARATIONS. 187 

§ 1616. The testimony here spoken of may be given as well 
hy signs as by words. Thus, where one, being at the point of 
death and conscious of her situation, but unable to articulate by 
reason of the wounds she had received, was asked to say whether 
the prisoner was the person who had inflicted the wounds, and, if 
so, to squeeze the hand of the interrogator, and she thereu.pon 
squeezed his hand, it was held that this evidence was admissible 
and proper for the consideration of the jury.^ 

§ 162. Though these declarations, when deliberately made, 
under a solemn and religious sense of impending dissolution, 
and concerning circumstances, in respect of which the deceased 
was not likely to have been mistaken, are entitled to great weight, 
if precisely identified ; yet it is always to be recollected, that the 
accused has not the power of cross-examination, — a power quite 
as essential to the eliciting of all the truth, as the obligation of an 
oath can be ; and that where the witness has not a deep and 
strong sense of accountability to his Maker, and an enlightened 
conscience, the passion of anger and feelings of revenge may, as 
they have not unfrequently been found to do, affect the truth and 
accuracy of his statements ; especially as the salutary and re- 
straining fear of punishment for perjury is in such cases with- 
drawn. And it is further to be considered, that the particulars of 



1 Commonwealth v. Casey, 6 Monthly put to her, it is to be observed that all 
Law Eep. p. 203; [11 Gush. 417, 421. words are signs; some are made by the 
The entire opinion of the court, by Shaw, rdouth, and others by the hands. There 
C. J., is as foUows ; "We appreciate the was a civil case tried in Berkshire County, 
importance of the question offered for our where a suit was brought against a rail- 
decision. Where a person has been in- road company, and the question was, 
jured in such a way, that his testimony whether a female who was run over sur- 
cannot be had in the customary way, the vived the accident tor any length of time, 
usual and ordinary rules of evidence must. She was unable to speak, but was asked, 
from the necessity of the case, be de- if she had consciousness, to press their 
parted from. The point first to be estab- hands, and the testimony was admitted, 
lished is, that the person whose dying If the injured party had but the action of 
declarations are sought to be admitted a single linger, and with that finger pointed 
was conscious that he was near his end at to the words "yes " and " no," in answer to 
the time of making them ; for this is sup- questions, in such a manner as to render 
posed to create a solemnity equivalent to it probable that she understood, and was 
an oath. If this fact.be satisfactorily es- at the same time conscious that she could 
tablished, and if the declarations are made not recover, then it is admissible evidence, 
freely and voluntarily, and without coer- It is, therefore, the opinion of the court, 
cion, they may be admitted as competent that the circumstances under which the 
evidence to go to the jury. But, after responses were given by Mrs. Taylor to 
they are admitted, the facts of the declara- the questions which were put her war- 
tions and their credibility are still for the rant that the evidence shall be admitted, 
judgment of the jury. but it is for the jury to judge of its credi- 

" In regard to the matter before the bility, and of the effect which shall be 

court, and the admissibility of the signs given to it." ^ 
by Mrs. Taylor, in reply to the questions 



188 



LAW OF EVIDENCE. 



[part II. 



the violence, to which the deceased has spoken, were in general 
likely to have occurred under circumstances of confusion and 
surprise, calculated to prevent their being accurately observed ; 
and leading both to mistakes as to the identity of persons, and 
to the omission of facts essentially important to the completeness 
and truth of the narrative.^ 



^ Phil. & Am. on Evid. 305, 806 ; 1 in the use of this kind of evidence, in 2 

Phil. Evid. 292; 2 Johns. 35, 36, per Liv- Poth. Obi. 255 (293) ; 2 Stark. Evid. 263. 

ingston, J. See also Mr. Evans's observa- See also Kex v. Ashton, 2 Lewiu's Cr. 

tions on the great caution to be observed Cas. 147, per Alderson, B. 



CHAP, X.] OP WITNESSES SUBSEQUENTLY DISQUALIFIED. 189 



CHAPTER X. 

OP THE TESTIMONY OF WITNESSES SUBSEQUENTLY DEAD, ABSENT, OR 

DISQUALIFIED. 

[*§1G3. Admissibility of evidence of deceased witness at a former triaL 

164. Not requisite all the parties to the suits should have been the same, but that 

the party should have opportunity for cross-examination. 

165. The substance of what the witness testified, both on direct and cross-exami- 

nation, must be proved. • 

166. Any witness may prove it, from memory and his notes taken at the time. 

167. Cases where the witness has become incompetent from subsequently acquired 

interest. 

168. It would seem, in such cases, the testimony given at a former trial should be 

received. Qualification of the rule stated by the author.] 

§ 163. In the fifth class of exceptions to the rule rejecting hear- 
say evidence may be included the testimony of deceased witnesses^ 
giveti in a former action, between the same parties ; though this 
might, perhaps, with equal propriety, be considered under the 
rule itself. This testimony may have been given either orally, in 
court, or in written depositions taken out of court. The latter 
will be more particularly considered hereafter, among the instru- 
ments of evidence. But at present we shall state some principles 
applicable to the testimony, however given. The chief reasons for 
the exclusion of hearsay evidence are the want of the sanction of 
an oath, and of any opportunity to cross-examine the witness. 
But where the testimony was given under oath, in a judicial pro- 
ceeding, in which the adverse litigant was a party, and where he 
had the power to cross-examine, and was legally called upon so to 
do, the great and ordinary test of truth being no longer wanting, 
the testimony so given is admitted, after " the decease of the wit- 
ness, in any subsequent suit between the same parties.^ It is also 
received, if the witness, though not dead, is out of the jurisdic- 
tion, or cannot be found after diligent search, or is insane, or sick, 

1 Bull. N. P. 239, 242 ; Mayor of Don- Beach, 5 Verm. 172 ; Lightner r. Wike, 4 
caster v. Day, 3 Tamit. 262; Glass r. S. & K. 203. 



W 



100 



LAW OF EVIDENCE. 



[part II. 



and unable to testify, or has been summoned, but appears to have 
been kept away by the adverse party.^ But testimony tluis offered 
is open to all the objections wliich might be taken, if tlie witness 
were personally present.^ And if the witness gave a written depo- 
sition in the cause, but afterwards testified orallj in .court, parol 
evidence may be given of what he testified vivd voce, notwithstand- 
ing the existence of the deposition.^ 

§ 104. Tiie admissibility of this evidence seems to turn rather 
on the rig ht to cross-e xamine, than upo n the precise nominal iden- 
tity of all the parties. Therefore, where the witness testified in 
a suit, in which A and several others were plaintiffs, against B 



1 Bull. N. P. 239, 243 ; 1 Stark. Evid. 
264; 12 Vin. Abr. 107, A. b. 31; Godh. 
326; l?ex v. Eriswell, 3 T. R. 707, 7-:i, 
per Lil. Kenyon ; [Lonji r. Davis, 18 Ala. 
biOl; Covaiihovan v. Hart. 21 Penn. ('J 
Harris), 4'J5.] As to tho otfect of interest 
subsequently acquired, see infra, § 167. 
Upon tlie question whetber this kind of 
evidence is admissible m any other con- 
tinponcy except the death of the witness, 
liiere is some discrepancy among the 
American autiiorities. It has been re- 
fused, where the witness had subsequently 
become interested, but was living and 
within reach; Chess v. phess, 17 S. & R. 
40;( ; Irwin v. Reed, 4 Yates, 512: where 
he was not to be found witiiin the juris- 
diction, but was reporteil to have gone to 
an adjoining state ; Wilber v. Seidcn, G 
Cowan, 162 : where, since the former 
trial, he liad become incompetent by being 
convicted of an infamous crime ; Le Ba- 
ron (.-. Cronibie, 14 ^lass. 2:'>4 : where, 
tliougii present, he liad forgotten the facts 
to winch lie had formerly testified; Dray- 
ton (;. Wells, 1 Nott & McCord, 409: and 
wliere lie has proved to have left the state, 
after being summoned to attend at the 
trial; Finn's case, 5 Rand. 701. In this 
last case it was lield, that this sort of testi- 
mony was not admissible in any criminal 
C4ise whatever. [8ee also Brogy v. Com- 
monwealth, 10 Gratt. 722.] In the cases 
of Le Baron v. Cronibie, ^yilber v. Sei- 
dell, iuid also in Crary v. Spragiie, 12 
Wend. 41, it was said, that such testimony 
was not admissible in any case, excc[)t 
where the witness was sliown to be dead; 
but tliis point was not in either of those 
cases directly in judgment; and in some 
of them it does not appear to have been 
fully considered. [See also Weeks v. 
I.,owerre, 8 Barb. 530.] On the other 
J'iL'.liLj.n Dravton r._\VelIs, it was heltlljy 
CheveSjTf^ToTJe aHmissIble in four cases : 



1st, where the witness is dead ; 2d, in- 
sane : ">l, Vh'-ihI ;ra3"^ imrr^th, where 
he lias liirii iM jr! :i\',,iy UyToTiti-ivaTice of 
jlic (itluT p iri_\ . See also iloore v. Pear- 
"s(.ii. <'. \V.iti- X- Serg. 51. In Magill v. 
Kautlijiau, 1 S. .i; R. 317, and in Carpen- 
ter V. Grotf, 5 8. & R. 162, it was admitted 
on proof that the witness had removed 
from Pennsjdvania to Ohio, — it was also 
admitted, where the witness was unable to 
testify, by reason of sickness, in Miller v. 
Russell, 7 Martin, 266, n. s. ; and even 
wliere he, being a sheriff, was absent on 
official duty. Isoble v. Martin, 7 Martin, 
282, N. s. But if it appears that the wit- 
ness was not fully examined at the former 
trial, his testimony cannot be given in evi- 
dence. Noble r. McCliirtock, 6 Watts & 
Serg. 58. If the witness is gone, no one 
knows whitlier, and his place of abode 
cannot be ascertained by diligent inquiry, 
the case can hardlj' be distinguished in 
principle from that of his death ; and it 
would seem tliat his former testimony 
ought to be admitted. If lie is merely 
out of the jurisdiction, )>ut the place is 
known, and his testimony can be taken 
under a commission, it is a proper case for 
the judge to decide, in his tiiscretion, and 
upon all the circumstances, whether the 
purposes of justice will be best served by 
issuing such commission, or by admitting 
the proof of what he formerly testified. 

2 Wright V. Tatham, 2 Ad. & El. 3, 21. 
Thus, wliere the witness at the former 
trial was called by the defendant, but was 
interested on the side of the plaintiff, and 
the latter, at the second trial, offers to 
prove his former testimony, the defendant 
may object to the competency of the evi- 
dence, on the ground of interest. Crary 
V. Sprague, 12 Wend. 41. 

8 Tod V. E. of Winchelsea, 3 C. & P 
387. 



CHAP. X.] OF WITNESSES SUBSEQUENTLY DISQUALIFIED. 



191 



alone, his testimony was held admissible, after his death, in a 
subsequent suit, relating to the same matter, brought by B again^ft 
A alone. ^ And though the two trials were not between the 
parties, yet if the second trial is between those who represent 
the parties to the first, by privity in blood, in law, or in estate, the 
evidence is admissible. And if, in a disjmte respecting lands, any 
fact comes directly in issue, the testimony given to that fact is 
admissible to prove the same point or fact in another action be- 
tween the same parties or their privies, though the last suit be for 
! other lands.^ The principle on which, chiefly this evidence is ad- 
_ mitted, namely, the right of cross-examination, requires that its 
admission be carefully restricted to the extent of that right ; and \ 

that where the witness incidentally stated matter, as t o which thej \j^ 
party was not permitted by the la w of trials to ci-oss-examine him ,|\fr V« 
his statement as to thaf matter ought not afterwards to be re- 
ceived in evidence against such party. Where, therefore, the 
point in issue in both actions was not the same, the issue in the 
former action having been upon a common or free fishery, and, in 
the latter, it being upon a several fishery, evidence of what a wit- 
ness, since de'ceased, swore upon the former trial, was held inad- 
missible.^ 

§ 165. It was formerly held, that the person called to prove 



V 



1 Wright V. Tatham, 1 Ad. & El. 8. 
But sec Mattliews v. Colburn, 1 Strob. 258. 
[So it is ailinissible in a subsequent action, 
in which the same matter is in issue, be- 
tween jiersons wlio were parties to tlie 
Ibrmer action, although otiier persons, not 
now before the court, were also parties to 
the former action. Philailelphia, W. & B. 
K. R. Co. V. Howard, 13 How. U. S. 307. 
But where in a suit for land against two 
persons jointly, certain facts were admitted 
and agreed on bv all the parties, in a sub- 
sequent suit for the same land between the 
same defendants, this admission and agree- 
ment, though in writing, is not evidence. 
Fr^'e i\ Gragg, 35 Maine, 29.] 

"•^ Outram c. Morewood, 3 East, 846, 
354, 355, jier Ld. Ellenborough ; Peake's 
Evid. (3d. ed.) p. 37 ; Bull. N. P. 232; 
Uoe V. Derby, 1 Ad. & El. 783; Doe 
V. Foster, Id. 791, note ; Lewis v. Cler- 
ges, 3 Bac. Abr. 614 ; Shelton v. Bar- 
bour, 2 Wash. 64 ; Kushford v. Countess 
of Pembroke, Hard. 472; Jackson r. Law- 
son, 15 Johns. 544 ; Jackson v. Bailey, 2 
Johns. 17 ; Powell v. Waters, 17 Johns. 
176. See also Ephraims v. Murdoch, 7 



Blackf. 10; Harper v. Burrow, 6 Ired. 30; 
Clealand v. Huey, 18 Ala. 343.] 

3 Melvin v. Whiting, 7 Pick. 79. See 
also Jackson v. Winchester, 4 Dall. 206; 
Ephraims r. Murdoch, 7 Blackf. 10. 
[Where there was a preliminary examina- 
tion before a magistrate of a defendant 
charged with a crime, and a witness, since 
deceased, there testified for the govern- 
ment and was cross-examined by defend- 
ant's counsel, and subseijuently an in- 
dictment was found, it was held, on tlie 
trial of the indictment, that the evidence 
of what the witness testified to at the 
preliminary examination was admissible. 
L'nited States r. Macomb. 5 McLean, 286; 
Davis .r. State, 17 Ala. 354 ; Kendrick r. 
State, 10 Humph. 479. The testimony 
given before arbitrators, by a witness, 
since deceased, is admissible in evitlence 
in a subsequent suit between the same 
parties on the same subject-matter, al- 
though the award has since been set aside, 
provitled the submission was good, and the 
arbitrators had jurisdiction. McAdains 
V. Stilwell. 13 Penn. State R. 90. See 
Elliott r. Heath, 14 N. H. 131.J 



102 



LAW OF EVIUENX'E. 



[part II. 



what a deceased witness testified on a former trial, must be 
required to repeat his precise tvords, and that testimony merely 
to tlie effect of them was inadmissible. ^ Bat this strictness is not 



1 4 T. R. 2U0, said, per.Ld. Kenyon, to 
have been so " agreed on all liands," npon 
an otter to prove wliat Ld. ralmorston liad 
testifieil. So held, also, by Washington, 
J., in United Stales v. Wood, 3 Wash. 
410; 1 I'hil. Evid. 200 [2151, 3d. ed. ; 
Foster t-. Shaw, 7 Serg. & li. 103, per 
Dunean, J. ; Wilber v. Scldon, 6 Cowen, 
1G5; Ephraims r. IMiirdoch, 7 Blackf. 10. 
The same rule is ai)plied to the proof of 
(Iving declarations. Mcjntgoniery v. Ohio, 
11 Ohio K. 421. In N(fW Jersey it has 
been held, that if a witness testifies that 
lie has a distinct recollection, independent 
of his notes, of the tact that the deceased 
was sworn as a witness at the former trial, 
of what he was produced to jtrove, and of 
the substance of what he then stated; he 
may rely on his notes for the language, if 
he believes them to be correct. Sloan v. 
Somers, 1 Spencer, K. 66. In M<iss(tr/in- 
setts, in The C.'ommonwealth v. Richards, 
IS Pick. 434, the witnesses did not state 
the precise words used l)y the deceased 
witness, but only the substance of them, 
from recollection, aided by notes taken at 
tlie time ; awd one of the witnesses testi- 
fied that he was confident that he stated 
substantives and verbs correctly, but was 
not certain as to the prepositions and con- 
j mictions. Yet the court held this insuf- 
ficient, and re(iuired that the testimony 
of the deceased witness be stated m his 
own language, ij)sissiinis verbis. Ti'.e point 
was afterwards raised in Warren v. Nich- 
ols, 6 Met. 261 ; where the witness stated 
that he could give the substance of the 
testimony of tlie deceased witness, but 
not the precise language ; and the court 
lield it insufhcient; Hubbard, J., f/mc////- 
eiit.e. The rule, however, as laid down by 
the court m the latter case, seems to 
recognize a distinction between giving the 
substance of the deceased witness's testi- 
mony, and the substance of the language; 
and to reiiuire only that his language be 
suited substantially, and in all material 
particulars, and not ipsissiiiiis verbis. The 
learned chief justice stated the doctrine 
as follows : " The rule upon which evi- 
dence may be given of what a deceased 
witness testified on a former trial between 
tlie same parties, in a case where the 
same question was in issue, seems now 
well established in this commonwealth by 
authorities. It was fully considereil in 
the case of Commonwealth v. liichards, 
18 Pick. 434. The principle on which 
this rule rests was accm-ately stated, the 



cases in sujiport of it were referred to, 
and with the, decision of which we see no 
cause to be dissatisfied. The general rule 
is, that one person cannot Ije li eartl to 
tt^snTyTTSTO-^rnnt il^i'iHluV l.i^VSOn has^de- 
cTTirerir tir relatton to a' ■fT>ct"w'^\iOJA^ 
Knowleduc and iK^iiin- u])o'irtTie^issue. 
ir^is the faiiiili:ir i iilr which' " exclucles 
hearsay. Tlie reasons are obvious, and 
they are two : First, because the aver- 
ment of fact does not come to the jury 
sanctioned by the oath of the party on 
whose knowledge it is supposed to rest; 
and secondly, because the party ui)on 
whose interests it is brought to bear has 
no opportunity to cross-examine him on 
whose sui)posed knowledge and veracity 
the truth of the fact depends. Now the 
rule, which admits evidence of what 
another said on a former trial, must effec- 
tually exclude both of these reasons. It 
must have been testiiiiuni/ ; that is, the 
aflirmation of some matter of fact, under 
oath ; it must have been in a suit between 
the same parties in interest, so as to make 
it sure that the party, against whom it is 
now ottered, had an opjiortunity to cross- 
examine; and it must have been ujion the 
same subject-matter, to show that his at- 
tention was drawn to points now deemed 
important. It must be the same testi- 
mony which the former witness gave, be- 
cause it comes to the jury under the 
sanction of his oath, and the jury are to 
weigh the testimony and judge of it, as 
he gave it. The witness, therefore, nmst 
be able to state the language in which the 
testimony was given, sidistaiitiall// and in 
all material particulars, because that is the 
vehicle by which the testimony of the 
M'ilness is transmitted, of which the jury 
are to judge. If it were otherwise, the 
statement of the witness, which is ottered, 
would not be of the testimony of the 
former witness ; that is, of the ideas con- 
veyed by the former witness, in the lan- 
guage in which he embodied them ; but it 
would be a statement of the present wit- 
ness's understanding and comprehension 
of those ideas, exi)iessed in language of 
liis own. Those ideas may have been mis- 
understood, modified, perverted, or col- 
ored, by jiassing through the mind of the 
witness", by his knowledge or ignorance of 
the subject, or the language in which the 
testimony was given, or by his own preju- 
dices, predilections, or habits of thought 
or reasoning. To illustrale this <listinc- 
tion, as we understand it to be fixed by 



CHAP. X.] OF WITNESSES SUBSEQUENTLY DISQUALrFIED. 



193 



now insisted upon, in proof of the crime of perjury ; ^ and it has 
been well remarked, that to insist upon it in other cases, goes in 
effect to exchide this sort of evidence altogether, or to admit it 
only where, in most cases, the particularity and minuteness of the 
witness's narrative, and flie exactness with which he undertakes to 
repeat every word of the deceased's testimony, ought to excite 
just doubts of his own honesty, and of the truth of his evidence. 
It seems, therefore, to be generally considered suflficiciit, if_the 
witness is able to state the substance of what was sworn on the 
former 'frfal.^ But he must state, in substance, the whole of what 



the cases : If a witness, remarkable for 
his kiiowledue of hnv, and his intclliiience 
on all other subjects, of greiit quickness 
of apprehension anil power of discrimina- 
tion, should dcchire that he could <i'ivc tlie 
substance and ellect of a former witness's 
testimony, but could not recollect his lan- 
guage, we supi)ose he would be excluded 
by the rule. 15 ut if one of those remark- 
able men should liappea to have been 
present, of great stolidity of mind upon 
most subjects, but of extraordinary te- 
nacity of memory for language, and who 
would say that he recollected and could 
repeat all the words uttered by the wit- 
ness ; although it should be very manifest 
that he himself did not understand them, 
yet his testimony would be admissible. 
The witness called t o prove former testi- 
mony must be able to satisfy one other 
coiVdition, namely, that he is able to stale 
all that the witness tesilfied oil the former 
trial, as. wyll upQn ihe.dh'CyL.iis. the. cross- 
examination. The reason is obvious. One 
part of his statement may be qualified, 
softened, or colored by another. And it 
would be of no avail to the party against 
whom the witness is called to state the 
testimony of the former witness, that he 
has had the right and ojiportunity to cross- 
examine that tbrmer witness, with a view 
of diminishing the weight or impairing 
;the force of that testimony against him, 
if the whole and entire result of that 
, cross-examination does not accompany the 
I testimony. It may, jierhaps, be said, that, 
with these restrictions, the rule is of little 
Value. It is no doubt true, that in most 
cases of complicated and extended testi- 
monj% the loss of evidence, by the decease 
of a witness, cannot be avoided. But the 
same residt follows, in most cases, from 
the decease of a witness whose testimony 
has not been preserved in some of the 
modes provided by law. But there are 
some cases in which the rule can be use- 
fixlly applied, as ui case of testimony em- 

VOL. I. 17 



braced in a few words, — such as proof of 
demand or notice, on notes or bills, — 
cases in which large amounts are often 
involved. If it can be used in a fiew 
cases, consistently with the true and sound 
principles of the law of evidence, there is 
no reason for rejecting it altogether. At 
the same time, care should be taken so to 
api)ly and restrain it, that it may not, 
under a plea of necessity, and in order to 
avoid hard cases, be so used as to violate 
those principles. It is to be recollected, 
that it is an exception to the general rule 
of evidence, supjiosed to be extremely 
important and necessary ; and unless a 
case is brought fully within the reasons of 
such exception, the general rule must pre- 
vail." See 6 Met. 26i-266. See also 
Marsh v. Jones, 6 Washb. 378. 

1 Eex V. Rowley, 1 Mood. Cr. Cas. 
111. 

- See Cornell v. Green, 10 Serg. & K. 
14, 16, where this point is brietiy, but 
powerfully discussed, by Mr. Justice Gib- 
son. See also Miles v. O'llara, -1 Binn. 
108; Caton v. Lenox, 5 Randolph, 31, 30; 
Rex V. Rowley, 1 Mood. Cr. C. Ill; 
Chess V. Chess, 17 Serg. & R. 409, 411, 
412; Jackson v. Bailey, 2 Johns. 17; 2 
Russ. on Crimes, 638 [683], (od Am. ed.); 
Sloan V. Somers, 1 Spencer's R. 66; Gar- 
rett V. Johnson, 11 G. & J. 28; Canney's 
case, 9 Law »l\eporter, 408 ; 'I'he State v. 
Hooker, 2 Washb. 658; Gildersleeve v. 
Caraway, 10 Ala. R. 260; Gould v. Craw- 
ford, 2 Barr. 89; Wagers v. Dickey, 17 
Ohio R. 439 ; [United States r. INIacomb, 
5 McLean, 286 ; Emery r. Eowler, 39 
Maine, 326 ; Young c. Dearborn, 2 Fos- 
ter, 372; Williams v. Willard, 23 Vt. 369; 
Van Buren v. Cockburn, 14 Barb. 118; 
Jones V. Wood, 16 I'eim. State R. 25; 
Riggins r. Brown, 12 Geo. 271; Walker 
r. Walker, 14 lb. 242; Davis v. Stite, 
17 Ala. 354; Clealand r. llucy, 18 lb. 343; 
Kcndrick v. State, 10 Humph. 479 ; supra, 
§ 101a.] 



194 



LAW OF EVIDENCE. 



[part II. 



was said on the pai-ticiikrsub[cct which li e is called to prove, If 
he can state only what was said on that subject by the deceased, 
on his examination in chief, without also giving the substance 
of what he said upon it in his cross-examination, it is inad- 
missible.^ 

§ 166. "What the deceased witness testified may be proved hy 
anif person, who will swear from his own memory ; or by notes 
taken by any person, who will swear to their accuracy ; ^ or, 
perhaps, from the necessity of the case, by the judge^s own Twtes, 
where both actions are tried before the same judge ; for in such 
case, it seems the judge, from his position, as well from other 
considerations, cannot be a witness.^ But, except in this case of 
necessity, if it be admitted as such, the better opinion is, that the 
judge's notes are not legal evidence of what a witness testified 
before him ; for they are no part of the record, nor is it his official 
duty to take them, nor have they the sanction of his oath to their 
accuracy or completeness.* But in chancery, when a new trial 



1 Wolf V. Wyeth, 11 Serg. & R. 149 ; 
Gildersleeve v. Caraway, 10 Ala. R. 260. 
[See Rhine v. Robinson, 27 Penn. State 
R. 30.] 

2 Mayor of Doncaster v. Day, 3 Taunt. 
267 ; Chess v. Chess, 17 Serg. & R. 409. 
The witness, as has b een stated in a pre- 
ceding note, must be able to testify, from, 
In^nM^lt;!,'^!!!^ jjlopc. that deceased was 
sworn as a witncs.^, tlie matter or thing 
which he was called to prove, and. the 
substance of what he stated ; after which 
liis notes may be admitted. Sloan v. 
Somers, 1 Spencer, N. J. R. 66 ; supra, § 
165, note (2). 

8 Glassford on Evid. 602; Tait on 
Evid. 432; Regina v. Garard, 8 C. & P. 
595; n;//-a, § 249. 

* Miles V. O'Hara, 4 Binn. 108; Foster 
V. Shaw, 7 Serg. & R. 156; Jix parte 
Leannouth, 6 Madd. R. 113; Reg. v. 
Phimmer, 8 Jur. 922, per Gurney, B. ; 
Livingston v. Cox, 8 Watts & Serg. 61. 
Courts expressly disclaim any power to 
compel the production of a judge's notes. 
ScouguU r. Campbell, 1 Chitty, R. 283; 
Graham r. Bowliam, Id. 284, note. And 
if an apjilication is made to amend a ver- 
dict b}- tlie judge's notes, it can be made 
onlv to the judge himself, before wiiom 
the"' trial was"had. Ibid. 2 Tidd's Pr. 770, 
933. Wliere a part}', on a new trial being 
granted, procured, at great expense, copies 
of a short-liand writer's notes of the evi- 
dence given at the former trial, for the 
amount of whicli he claimed allowance in 
the final taxation of costs ; the claim was 



disallowed, except for so much as would 
have been the expense of waitmg on the 
judge, or his clerk, for a copy of his notes ; 
on the groimd that the latter would have 
sutHced. Crea.se v. Barrett, 1 Tyrw. & 
Grang. 112. But this decision is not con- 
ceived to afreet the question, whether tiie 
judges's notes would have been admissible 
before another judge, if objected to. In 
Regina v. Bird, 5 Cox, C. C. 11 ; 2 Eng. 
Law and Ecj. Rep. 444, the notes of the 
judge, before whom a former indictment 
had been tried, were admitted without ob- 
jection, for the purpose of showing what 
beatings were proved at that trial, in order 
to support the plea of autrefois a<quil. In 
New Brimswick, a judge's notes have been 
held admissible, though objected to, on 
the ground that they were taken under 
the sanction of an oath, and that such has 
been the practice. Doe r. Murray, 1 Al- 
lan, 216. But in a recent case in England, 
on a trial for perjury, the notes of the 
judge, before whom the false evidence 
was given, being offered in jn-oof of that 
part of the case, Talfourd, J., refused to 
admit them ; observing, that " a judge's 
notes stood in no other position than any- 
body else's notes. They could only be 
used to refresh the memory of the party 
taking them. It was no doubt unusual to 
produce the judge as a witness, and would 
be highly inconvenient to do so; but that 
did not make his notes evidence." Regina 
V. Child, 6 Cox, C. C. 197, 203. [See also 
ILiff' V. Bennett, 4 Sanford's Sup. Ct. 
120.] 



CHAP, X.] OF WITNESSES SUBSEQUENTLY DISQUALIFIED. 195 

is ordered of an issue sent out of chancery to a court of common 
law, and it is snggcsted that some of the witnesses in the former 
trial are of advanced age, an order may be made that, in the event 
of their death or inability to attend, their testimony may be read 
from the judge's notcs.^ 

§ 167. The effect of an inter est subseq uen tly acquire^ by thel 
witness, as laying a foundation for the admission of proof of his 
former testimony, remains to be considered. It is in general true, 
that if a person, who has knowledge of any fact, but is under no 
obligation to become a witness to testify to it, should afterwards 
become interested in the subject-matter in which that fact is in- 
volved, and his interest should be on the side of the party calling 1 
him, he would not be a competent witness until the interest is ' 
removed. If it is releasable by the party^ he must release it. If 
not, the objection remains ; for neither is the witness, nor a third 
person, compellable to give a release ; though the witness may 
be compelled to receive one. And the rule is the same in regard 
to a subscribing witness, if his interest was created by the act of 
the party calling him. Thus, if the charterer of a ship should 
afterwards communicate to the subscribing witness of the charter- 
party an interest in the adventure, he cannot call the witness to 
prove the execution of the charter-party ; nor will proof of his 
handwriting be received ; for it was the party's own act to destroy 
the evidence.^ It is, however, laid down, that a witness cannot, 
by the subsequent voluntary creation of an interest, without the i 
concurrence or assent of the party, deprive him of the benefit of 
his testimony .3 But this rule admits of a qualification, turning ; 
upon the manner in which the interest was acquired. If it were 
acquired wantonly, as by a wager, or fraudulently, for the purpose 
of taking oif his testimony, of which the participation of the ad- 
verse party would generally be proof, it would not disqualify him. 

But " the pendency of a suit cannot prevent third persons from 
transacting business, bond fide, with one of the parties ; and, if an 
interest in the event of the suit is thereby acquired, the common 
consequence of law must follow, that the person so interested 

1 Hargrave v. Ilargrave, 19 Jur. 957. ^ 1 Stark. Evid. 118 ; Barlew r. Vow- 

2 Hovill V. Stephenson, 5 Bing. 493; ell, Skin. 686; George i'. Pierce, cited by 
Hamilton i. Williams, 1 Ilayw. 139; John- BuUer, J., in 3 T. R. 37; Rex v. Fox, 1 
son V. Knight, 1 N. Car. Law Rep. 93 ; 1 Str. 052 ; Long v. Baillie, 4 Serg. & R. 
Murph. 293; Bennett r. Robinson, 3 Stew. 222; Burgess v. Lane, 3 Greenl. 166; 
& Port. 227,237; SchaU i;. Miller, 5 Whart. Jackson v. Rumsey, 3 Johns. Cas. 234, 
156. 237 ; iufra, § 418. 



? 



ii 



196 LAW OF EVIDENCE. [PART II. 

cannot be examined as a witness for tluit party, from whose suc- 
cess he will necessarily derive an advantage." ^ Therefore, where, 
in an arlion against one of several underwriters on a policy of 
insurance, it appeared that a subsequent underwriter luid paid, 
upon the plaintilFs promise to refund the money, if the defendant 
in the suit should prevail ; it was held that he was not a competent 
witness for the defendant to prove a fraudulent concealment of 
facts by the plaintiff, it being merely a payment by anticipation, 
of his own debt in good faith, upon a reasonable condition of repay- 
ment.- xVnd as the interest which one party acquires in_tl]C_tostl- - 
mony of another is liable to the contingency of being defeated 
Ijy a subsequcirr interest of the witness in the subject-matter, 
created bona fide, in the usual and lawful course of business, the 
same principle would seem to apply .to an interest arising by opera- 
tion of law, upon the happening of an uncertain event, such as 
the death of an ancestor, or the like. But though the interest 
which a party thus acquires in the testimony of another is liable 
to be affected by the ordinary course of human alfairs, and of 
natural events, the witness being under no obligation, on that 
account, either to change the course of his business, or to abstain 
from any ordinary and lawful act or enqdoyment ; yet it is a right 
of which neither the witness, nor any other person, can by volun- 
tary act and design deprive him, "Wherever, therefore, the subse- 
quent interest of the witness has been created either wantonly, 
or in bad faith, it docs not exclude him ; and doubtless the partici- 
pation of the adverse party in the creation of such interest would, 
if not explained by other circumstances, be very strong pi'imd facie 

1 3 Campb. 381, per Ld. Elleiiborough. ^ Forrester v. Pigou, 3 Campb. 380 ; 1 
Tlie case of Bent y. Raker, 3 T. K. 27, M. & S. U, s. c; Phelps v. Kiley, G Conn, 
seems to have l)een determined on a simi- 266. In Burjjess v. Lane, 3 Greenl. 165, 
lar principle, as applied to the oj)posite the witness liad voluntarily entereil into 
state of facts ; the subsequent interest, ac- an aiireeinent with the defendant, against 
(piired ])y the l)r()ker, hein^- regarded as whom he had an action jjeiidiiig in another 
aflected with had faith on the part of the court, that that action should abide the 
assured, who objected to his admission, event of the other, in which he was now 
The distinction taken by Lord Ellenbor- called as a witness for the jilaintitf; and 
ough was before the Supreme Court of the court held, that it did not lie with the 
the Uinicd States in Winship r. Tlieliank defendant, who Mas party to that agrce- 
of the I'niieil States, 5 Peters, 52'.), 541, ment, to objoct to his adnussibility. But 
542, 545, 546, 552, but no decision was it is observable, that that a.iireeinent was 
liad upon the question, the court being not made in discharge of any real or sup- 
equally dividi'd. But the same doctrine posed obligation, as in Forrester v. Pigou; 
was afterwards discussed and recognized, but was on a new subject, was uncalled 
as "founded on the plainest reasons," in for, and i)urely voluntary; and therefore 
Eastman v. Winship, li Pick. 44; 10 sid)jected the adverse i)arty to the imputa- 
Wend. 1G2, 164, ace. tiou of bad faith in making it. 



CHAP. X.] OF WITNESSES SUBSEQUENTLY DISQUALIFIED. 197 

evidence of bad faith ; as an act of the witness, uncalled for, and 
out of the ordinary course of business, would be regarded as 
wanton.^ 
\ § 168. If, in cases of disqualifying interest, the witness has 
freviouMhj ijiven a deposition in the cause, the deposition may be 
read in chancery, as if he were since deceased, or insane, or other- 
wise incapacitated. It may also bo read in the trial, at law, of 
an issue out of chancery. In other trials at law, no express 
authority has been found for reading the deposition ; and it has 
been said, that the course of practice is otherwise ; but no reason 
is given, and the analogies of the law are altogether in favor of 
admitting the evidence .^ And as it is hardly possible to conceive^ 
a reason for the admission of prior testimony given in one form,! 
which does not apply to the same testimony given in any othen 
form, it would seem clearly to result, that where the witness i^ 
subsequently rendered incompetent by interest, lawfully acquired,! 
in good faith, evidence may be given of what he formally testified 
orally, in the same manner as if he were dead ; and the same' 
principle will lead us farther to conclude, that, in all cases where 
the party has, without his own fault or concurrence, irrecoverably! 
lost the power of producing the witness again, whether from! 
physical or legal caused, he may offer the secondary evidence of 
what he testified in the former trial. If the lips of the witness 
are sealed, it can make no difference in principle, whether it be 
by the finger of death, or the finger of the law. The interest 
of the witness, however, is no excuse for not producing him in 
court ; for perhaps the adverse party will waive any objection on 
that account. It is only when the objection is taken and allowed, 
that a case is made for the introduction of secondary evidence. 
[ * Our author seems, in the preceding sections, to have stated 
some points more loosely than is consistent with his usual accuracy. 
"We see no more reason why the judge, presiding at a former trial, 
should be exempted from verifying his minutes, if required by 

1 See infra, § 418, where the subject is Pennsj'lvania. See also 1 Stark. Evid. 

again considered. 264, 265 ; 1 Smith's Chan. Pr. 344 ; Gosse 

■^ This is now the established practice v. Tracy, 1 P. W. 287 ; 2 Vern. 699, s. c. ; 
in chancery ; Gresley on Evid. 366, 367 ; Andrews v. Palmer, 1 Ves. & B. 21 ; Lut- 
and in Chess v. Chess, 17 Serg. & K. 412, trell r.Keynell, 1 Mod. 284; Jones i\ Jones, 
it was conceded by Tod, J., that the rea- 1 Cox, 184; Union Bank v. Knapp, 3 Pick, 
eon and principle of the rule applied with 108, 109, per Putnam, J. ; Wafer v. Hem- 
equal force, in trials at law ; though it was ken, 9 Kob. 203. [See also Scammon v, 
deemed in that case to have been settled Scammon, 33 N. H. 52, 58.J 
otherwise, by the course of decisions in 

17* 



198 LAW OF EVIDENCE. [PART II. 

oath, and by cross-examination, than any other witness. Our own 
minutes have always been used, in such cases, by consent ; but 
we never supposed they possessed any legal verity. And we have 
never supposed the rule of admitting the testimony of a deceased 
witness, at a former trial, extended to all cases where the witness, 
for any cause, could not be produced. It will be found, we believe, 
that that rule applies to the deposition of a witness de bene esse, or 
inpeiyetuam, and not to his testimony upon former trials.] 






A' 



CHAP. XI.] OF ADMISSIONS. 199 



CHAPTEE XL 

OF ADMISSIONS. 

[* § 169. The ground upon which admissions against interest are received. 

170. Distinction between confessions and admissions. Admissions. 

171. Those of the party of record, and of such as are in same interest, admissible. 

172. If the party of record have no interest, his admissions will not afi'ect the party 

really in interest. 

173. The American courts adhere more strictly to the rule than the English. 

174. The admissions of one joint party binds all, in the absence of fraud. 

175. Tlie Enghsh courts regard the inhabitants of a parish as parties ; but the 

rule seems otherwise iu America. 

176. Community of interest required to make admissions of joint party receiva- 

ble. 

177. The joint interest must be shown as the basis of admitting declarations of 

one party against others. 

178. The same rule apphes to the answer of one defendant in chancery, as against 

others. 

179. Admissions of a representative party evidence only against himself, and as 

affecting matters for wliich he is responsible. 

180. Admissions of the party in interest generally receivable. , 

181. The declarations of third parties admissible, where they are the real party to 

the question. 

182. A party bound by declarations of one to whom he refers. 

183. Declarations of interpreter the same as of the party. 

184. How far declarations of party referred to are conclusive. 

185. Declarations of wife bind husband to extent of her agency. 

186. The solemn admissions of attorney bind the party, but none others. 

187. Admissions of principal bind surety within the transaction. 

188. Judgment against surety, with notice to principal, binds him. 

189. The admissions of those in privity with party bind him. 

190. Declarations of the assignor good evidence against assignee. 

191. It is not necessary to prove admissions by the party making them. 

192. Offers to induce compromise, or without prejudice, not admissible. 

193. Constraint, short of legal duress, no ground of rejecting admissions in civil 

causes. 

194. Incidental admissions as much evidence as those more direct. 

195. Admissions may be implied, from the character one assumes. So too from 

pleadmgs in an action inter alios. 

196. So also trom the conduct of the party. 

197. Acquiescence in a claim concludes the party. 

^y*, Silence no ground of presumption, unless the occasion fairly demand some- 
thing to be said. Pleadings. 



200 LAW OF EVIDENCE. [PART II. 

§ ins. Presumi)tions of acquiescence fVoni constant access to documents. 

190. Great caution required in making inferences from silence. 

200. So also in regard to oral admissions of party. 

201. The whole admission must be received. 

202. Answer in chancery, the whole taken together. All not equally reliable. 

203. Oral a<lmissi()ns will not supjily tiie place of writings. 

204. Estoppels in pais, how lar conclusive. 

205. Payment of money into court admits the cause of .action to that extent. 

- 20G. Court may reUeve counsel from concessions made by surprise, accident, or 
mistake. 

207. Party estopped to deny what he has induced other parties to act upon. 

208. It is not important whether it be really the fact or not. 

209. Admissions not acted upon by others may be controverted. 

210. Many admissions held conclusive on grounds of public policy. 

211. Estoppels by deed not conclusive upon strangers. 

212. Receipts, accounts rendered, and accounts stated, &c., not conclusive.] 

§ 169. Under the head of exceptions to the rule rejecting 
hearsay evidence, it has been usual to treat of admissions and corv- 
fessions by tlie party, considering them as declarations against 
his interest, and therefore probal)ly true. But in regard to many 
admissions, and especially those implied from conduct and as- 
snmcd character, it cannot be supposed that the party, at the 
time of tlie principal declaration or act done, believed himself 
to be speaking or acting against his own interest ; but often the 
contrary. Such evidence seems, therefore, more properly admis- 
sible as a substitute for the ordinary and legal proof, eitlicr in 
virtue of the direct consent and waiver of the party, as in the case 
of explicit and solemn admissions, or on grounds of public policy 
and convenience, as in the case of those implied from assumed 
character, acquiescence, or conduct.^ It is in this light that con- 
fessions, and admissions are regai'ded by the Roman law, as is 
stated by Mascardus. Illud igitur in primis, ut hinc potissimum 
exordia^; non est ipiorandum, quod etsi confessioni inter probationum 
species locum in prcesentia tribuerimus ; cuncti tamen fere Dd. unan- 
imes sunt arbitrati, ipsam potius esse ab onere jjrobandi relevationem, 
quam proprie probationem?' Many admissions, however, being 

1 See supra, % 27. former as of very little and often of no 

2 Mascard. ' De Probat, vol. 1, Quncst. weight, tmless corr()l)orated. and tiie latter 
7, n. 1,10, 11; Menochius, De Prresump., as generally, if not always, conclusive, 
lib. 1, Qiiics. 61, n. 6 ; Alciatus, I)e Vvx- even to the overthrow of tlie prwsiimptio 
sump., Pars. 2, n. 4. The Roman law dis- juris et de jure; thus constituting an ex- 
tinguishes, with great clearness and pre- ception to tlie conclusiveness of this class 
cision, between confessions extra judicium, of presumptions. But to give a confes- 
and confessions in judicio ; treating the sion this eflect, certain things are essen- 



CHAP. XT.] OF ADMISSIONS. 201 

made by tliird persons, arc receivable on mixed grounds ; partly 
as belonging to the res (/estce, partly as made against the interest 
of the person making them, and partly because of some privity 
with him against whom they are offered in evidence. The whole 
subject, therefore, properly falls under consideration in this con- 
nection. 

§ 170. In our law, the term admission is usually applied to 
civil trWmacti6nS"?^^l6 those matters oTlact.in crimim 



which do not involve criminal intent j, the te rm confes sion being 
gen,gj;{aill yi!-rQg:t !rEi9fe ^ 3q achnowledam£nts qf guilt. We shall there- 
fore treat them separately, beginning with admissions. The rules 
of evidence are in both cases the same. Thus, in the trial of 
Lord Melville, charged, among other things, with criminal misap- 
plication of moneys received from the exchequer, the admission 
of his agent and authorized receiver was held sufficient proof of 
the fact of his receiving the public money ; but not admissible to 
establish the charge of any criminal misapplication of it. The 
law was thus stated by Lord Chancellor Erskine : " This first step 
in the proof" (namely, the receipt of the money), " must advance 
by e^•idence applicable alike to civil, as. to criminal cases ; for 
a fact must be established by the same evidence, whether it is to 
be followed by a criminal or civil consequence ; but it is a totally 
different question, in the consideration of criminal, as distinguished 
from civil justice, how the noble person now on trial may be 
affected by the fact, when so established. The receipt by the 
paymaster would in itself involve him civilly, but could by no 
possibility convict him of a crime." ^ 

§ 171. We shall first consider the person, whose admissions 
may be received. And here the general doct rine is, that the 
declarations of a partylo the record or of one identified in interest 
with him, are, as a ga inst such party, admissible in ev idence.^ If 

tial, which Mascardus cites out of Tan- tions of the parties, which are not put in 

(jied : — ' issue by the pleadings, and wliicli there 

,^ . ^ . i--^^ was not, therefore, any opportunity of 

Major, sponte,sciens, contra se,ubi JUS Jit; explaining or disproving. Copeland v. 

^ec7)atnra,favor,hsJusverepllgnet,ethost^s. rp^^uii^jj^^ 7 Q^^^y. ^ pj„ 350^ 373. ^^jg. 

Mascard. ub. sup. n. 15; Vid. Dig. lib. 42, tin v. Chambers, 6 Clark & Fin. 1 ; At- 

tit. 2, de confessis ; Cod. lib. 7, tit. 59 ; wood v. Small, Id. 284. But m the 

Van Leeuwen's Comm., book v., ch. 21. United States this rule has not been adoj)- 

1 29 Howell's State Trials, col. 764. ted ; and it is deemed sufficient if the 

2 Spargo I'. Brown, 9 B. & C. 935, per proposition to be established is stated in 
Bayley, J. ; infra, §§ 180, 203. In the the bill, without stating the particular 
court of chancery, in England, evidence kind of evidence by which it is to be 
is not received of admissions or declara- proved. See Smith v. Buruliam, 2 Sumn. 



202 



LAW UF EVIDEN'CE. 



[part II. 



tlioy proceed from a stranger, and cannot be brought home to the 
party, they are inadmissible, unless upon some of the other 
grounds already considered. ^ Thus, the admissions of a payee 
of a negotiable promissory note, not overdue when negotiated, 
cannot be received in an action by the indorsee against the maker, 
to impeach the consideration, there being no identity of interest 
between him and the j)laintiir.2 

§ 172. This general rule, admitting the declarations of a party 
to the record in evidence, applies to all cases whpre the party has 
any interest in the suit, whether others are joint parting on the 
same side with him, or not, and howsoever the interest may 
ap{)car, and whatever may be its relative amount.^ But where 
the party sues alone, and has no interest in the matter, his name 
being used, of necessity, by one to whom he has assigned all his 
interest in the subject of the suit, though it is agreed that he 
cannot be permitted, by his acts or admissions, to disparage the 
title of his innocent assignee or vendee, yet the books are not so 
clearly agreed in the mode of restraining him. That chancery 
will always protect the assignee, cither by injunction or otherwise, 
is very certain ; and formerly this was the course uniformly pur- 



612 ; Brantlon v. Cabiness, 10 Ala. R. 156 ; 
Story, Equity Plead. § 26oa, and note 
(1), where this subject is fully discussed. 
And in Enj>land, the rule has recently 
been (jiialifieil, so far as to admit a written 
admission by the defendant of liis liability 
to the plaintiff, in the matter of the pend- 
in<^ suit. jMalcolm r. Scott, 3 Hare, 63 ; 
McMaiion v. Burcliell, 1 Coop. Cas. temp. 
Cottenham, 475; 7 Law Kev. 209. See 
the "cases collected by Mr. Cooper in his 
note ajipended to thattase. It seems, that 
pleadings, whetlier in equity or at com- 
mon law, are not to be treated as positive 
alle<jations of the truth of the facts therein 
slated, for all purposes ; but only as state- 
ments of the case of the party, to be ad- 
mitted or denied by the ojiposite side, and 
if denied, to be proved, and ultimately to 
be submitted to judicial decision. Boileau 
V. Kutliii, 2 Kxch. 665. [Answers of a 
party to a suit to interrogatories filed in the 
ordinary mode of practice are competent 
evidence aiiainst him of the facts stated 
therein, in another suit, although the issues 
in the two suits be diflerent. Williams v. 
Cheney, 3 Gray, 215 ; Judd v. Gibbs, lb. 
539. See Church o. Shelton, 2 Curtis, C. 
C. 271 ; State r. Littlefield, 3 R. I. 124.] 
' 1 S/7>m,'8§ 12K, 141, 147, 156. There 
must be some evidence of the identity of 



the person whose admissions are oflFered 
in evidence, with the party in question. 
Thus, where the witness asked fbr the de- 
fendant by name, at his lodgings, and a 
person came to the door professing to be 
the one asked for; the witness being un- 
acquainted with the defendant's person 
then and since ; this was held sufficient to 
admit the conversation which then was 
had between the witness and this person, 
as being, prima facie, the language of the 
defendant. Reynolds v. Staines, 2 C. & K. 
745. [Admissions of a party may be proved, 
although they relate to a written instru- 
ment. Loomis i>. Wadham, 8 Gray, 556.] 
•2 Barough v. White, 4 B. & C. 325; 
Bristol V. Dan, 12 Wend. 142. 

^ Bauerman v. Radenius, 7 T. R. 663 ; 
2 Esp. 653, s. c. In this case the con- 
signees brought an action in the name of 
the consignor, against the ship-master, for 
a damage to the goods, occasioned by his 
negligence ; and without supposing some 
interest to remain in the consignor, the 
action could not be maintained. It was 
on this ground that Lawrence, J., placed 
the decision. See also Norden v. William- 
son, 1 Taunt. 378 ; Mandeville v. Welch, 
5 Wheat. 283, 286 ; Dan et ul. v. Brown, 4 
Cowen, 483, 492 ; [Black v. Lamb, 1 Beas- 
ley, 108.] 



CHAP. XI.] OF ADMISSIONS. 203 

sued ; the admissions of a party to the record, at common law, 
being received against him in all cases. But, in later times, the 
interests of an assignee, suing in the name of his assignor, have 
also, to a considerable extent, been protected, in tlie courts of 
common law, against the effect of any acts or admissions of the 
latter to his prejudice. A familiar example of this sort is that 
of a receipt in full, given by the assignor, being nominal plaintiff, 
to the debtor, after the assignment; which the assignee is per- 
mitted to impeach and avoid, in a suit at law, by showing the 
previous assignment.^ 

§ 173. But a distinction has been taken between such admis- 
sions as these, which are given in evidence to the jury, under the 
general issue, and are, therefore, open to explanation, and con- 
trolling proof; and those in mo7'e solemn form, such as releases 
which are specially pleaded, and operate by way of estoppel ; in 
which latter cases it has been held, that, if the release of the 
nominal plaintiff is pleaded in bar, the courts of law, sitting in 
bank, will admin'ister equitable relief by setting aside the plea, on 
motion ; but that, if issue is taken on the matter pleaded, such 
act or admission of the nominal plaintiff must be allowed its effect 
at law to the same extent as if he were the real plaintiff in the 
suit.2 The American courts, however, do not recognize this dis- 
tinction ; but where a release from the nominal plaintiff is pleaded 
in bar, a prior assignment of the cause of action, with notice 
thereof to the defendant, and an averment that the suit is prose- 
cuted by the assignee for his own benefit, is held a good replica- 
tion. ^ Nor is the nominal plaintiff permitted by the entry of a 
retraxit, or in any other manner injuriously to affect the rights 
of his assignee in a suit at law.* 

1 Henderson et al. v. Wild, 2 Campb. & A. 96 ; Craib v. D'Aeth, 7 T. R. 670, 
561. Lord Ellenborough, in a previous note (b) ; Lcigb v. Leigh, IB. & P. 447 ; 
case of the same kind, thought himself not Anon. 1 Salk. 260 ; Payne v. Rogers, 
at hberty, sitting at Nisi Prius, to over- Doug. 407 ; Skaife v. Jackson, 8 B. & C. 
rule the defence. Alner v. George, 1 421. 

Campb. 392; Frear vy Evertson, 20 Johns. ^ Mandeville v. Welch, 5 Wheat, 277, 
142. See also Payne v. Rogers, Doug. 283; Andrews v. Beeker, 1 Johns. Cas. 
407 ; Winch v. Keeley, 1 T. R. 619 ; Cock- 411 ; Raymond v. Squire, 11 Johns. 47 ; 
shott V. Bennett, 2 T. R. 763 ; Lane v. Littlefield v. Story, 3 Johns. 425 ; Dawson 
Chandler, 3 Smith, R. 77, 83 ; Skaife v. v. Coles, 16 Johns. 51; Kimball v. Hun- 
Jackson, 3 B. & C. 421 ; Appletont'. Boyd, tington, 10 Wend. 675 ; Owings v. Low, 5 
7 Mass. 131 ; Tiermen v. Jackson, 5 Gill & -Johns. 134. 

Peters, 580 ; Sargeant v. Sargeant, 3 * Welch v. Mandeville, 1 Wheat. 233. 

Washb. 371 ; Head y. Shaver, 9 Ala. 791. "By the common law, rhoses in action 

2 Alner v. George, 1 Campb. 395, per were not assignable, except to the crown. 
Ld. Ellenborough ; Gibson v. Winter, 5 B. The civil law considers them as, strictly 



204 



LAW OP EVIDENCE. 



[part II. 



§ 174. Though the admissions of a party to the record arc 
generally receivable in evidence against him, yet where there 
arc several parties on the same side, the admissioji s of o ne arcj iflL- 
admitted to^affcct the others, who may happen to be joined withi,, 
him, unless there is some joint interest, or privity in design 
between them;^ although the admissions may, in proi)er cases, be 
received against the person who made them. Thus, in an action 
against joint makers of a note, if one suffers judgment by default, 
\ his signature must still be proved,, against the other .^ And even 
where there is a joint interest, a release, executed by one of 
several plaintiffs, will, in a clear case of fraud, be set aside in 
a court of law.^ But in the absence of fraud, if the parties have 
a joint interest in the matter in suit, whether as plaintiffs or 
defendants, an admission made by one is, in general, evidence 
Vgainst all.^ They stand to each other, in this respect, in a relation 



speaking, not assip;nable ; but, by tbe in- 
vention of a tiction, the Roman juriscon- 
sult.s contrived to attain this object. Tlie 
creditor who wislied to transfer liis riglit 
of action to another person, constituted 
him liis attorney, or procurator in rem suam 
as it was called ; and it was stipulated 
that the action should be brought in tlie 
name of the assignor, but for the benefit 
and at the expense of tlie assignee. 
I'olhier de Vente, No. 550. After notice 
to the debtor, this assignment o])orated a 
complete cession of tlie debt, and invali- 
dated a jiayment to any other person than 
the assignee, or a release from any other 
person than him. Id. 110, 554; Code 
Napoleon, liv. 3, tit. 6 ; De la Vente, c. 8, 
§ 1690. The court of chancery, imitat- 
ing, in its usual .s])irit, the civil law in 
this particular, disregarded the rigid strict- 
ness of the common law, and jjrotected 
the rights of the assignee of choses in 
action. This liberality was at last adopted 
by the courts of common law, who now 
consider an assignment of a chose in 
action as substantially valid, only preserv- 
ing, in certain cases, the form of an action 
connnenced in the name of the assignor, 
the beneficial interest and control of the 
suit being, however, considered as com- 
pletely vested in the assignee, as prnnira- 
tor in rf'in sikiiii. See Master v. Miller, 4 
T. U. 340 ; Andrews r. Beecker, 1 .Johns. 
Cas. 411; Bates v. New York Insurance 
Company, 3 Johns. Cas. 242 ; Wardell v. 
Eden, 1 .lohns. 532, in notis ; Carver v. 
Tracy, 3 Johns. 420 ; Raymond r. Squire, 
11 Johns. 47 ; Van Vechlen v. Greves, 4 
Jolms. 406 ; Weston v. Barker, 12 Johns. 



276." See the reporter's note to 1 Wheat. 
237. But where tiig nominal i)laintiti'was 
constituted, by the jiarty in interest, his 
agent for negotiating the contract, and it 
is expressly made with him alone, he is 
treated, in an action u\u)u such contract, 
in all respects as a party to the cause ; and 
any defence against him is a defence, in 
that action, against the ccatui que trust, 
suing in his name. Therefore, where a 
broker, in whose name a ])()licy of insur- 
ance under seal was effected, brought an 
action of covenant thereon, to which pay- 
ment was pleaded ; it was held that pay- 
ment of the amount of loss to tlie broker, 
b5' allowing him credit in account for that 
sum, against a balance for premiums due 
from him to the defendants, was a good 
payment, as between the iilaintitf on the 
record and the defendants, and, therefore, 
an answer to the action. Gibson v. Win- 
ter et al. 5 B. & Adol. DO. This case, 
however, may, with equal and perhaps 
greater propriety, be referred to the law 
of ageiuy. See Richardson r. Anderson, 
1 Cainpl). 43, note ; Story on Agency, § 
413, 420-434. 

1 See supra, §§ 111, 112 ; Dan et al. 
V. Brown, 4 Cowc«, 483, 4',l2 ; liex v. 
Hard wick, 11 I<:asf, 578, 58'.*, per Le 
Blanc, J. ; Whitcomb v. Whiting, 2 Doug. 
652. 

- Gray v. Palmer, 1 Esp. 135. See 
also Sheriff v. Wilks, 1 East, 48. 

■^ Jones et al. v. Herbert, 7 Taunt. 421 ; 
Loring et al. v. Brackett, 3 Tick. 403 ; 
Skaife et al. v. Jackson, 3 B. & C. 421 ; 
Henderson et al. v. Wild, 2 Campb. 5G1. 

■* Such was the doctrine laid down by 



CIIA]\ XI.] 



OF ADMISSIONS. 



205 






similar to that of existing copartners. Thus, also, the act of 
making a partial payment within six years, by one of several joint 

kers of a promissory note, takes it out of the statute of limita- 
tions.^B And where several were both legatees and executors in 
a will, and also appellees in a question upon the probate of the 
will, the admission of one of them, as to facts wliich took place 
at the time of making the will, showing that the testatrix was 
imposed upon, was held receivable in evidence against the validity 
of the will.- And where two were bound in a single bill, the 
admission of one was held good against both defendants,^ "^ 

§ 175. In settlement cases, it has long been held that declara- 
tions by rated parisJiioners are evidence against the parish ; for 
they are parties to the cause, though the nominal parties to the 



Ld. Mansfield in T\niitcomb v. ^Yhitin2:, 2 out of the statute of limitations against 



DoufT- 652. Its propriety, and the extent 
of its application have been much dis- 
cussed, and sometimes questioned ; but it 
seems now to be clearly established. See 
Perham v. Kaynal, 2 Bing. 306 ; Burleigh 
V. Stott, 8 B. & C. 36 ; Wyatt v. Hodson 
8 Biug. 30'J ; Brandram v. Wharton, 1 B. 
& A. 467 ; Holme v. Green, 1 Stark. R. 
488. See also, accordingly. White v. Hale, 
3 Pick. 2'.tl; Martin v. Root, 17 Mass. 
222; Hunt v. Brigham, 2 Pick. 581; 
Prye v. Barker, 4 Pick. 382; Beitz v. 
Fuller, 1 McCord, 541 ; Johnson v. Beards- 
lee, 1 Johns. 3 ; Bound i'. Lathrop, 4 
Conn. 336; Coit v. Tracy, 8 Conn. 268, 
276, 277 ; Getchell *;. Heald, 7 Greeul. 26 ; 
Owings V. Low, 5 Gill & Johns. 144 ; 
Patterson v. Choate, 7 Wend. 441 ; Mcln- 
tire V. Oliver, 2 Hawks, 209 ; Cady o. 
Shepherd, 11 Pick. 400; Van Reims.dyk 
I'. Kane, 1 Gall. 635, 636 ; [Barrick v. 
Austin, 21 Barb. 241 ; Camp v. Dill, 27 
Ala. 553.] But see Bell v. Morrison, 1 
Peters, 351. But the admission must be 
distinctly made by a party still liable upon 
the note ; otlierwise it will not be bind- 
ing against the others. Therefore, a pay- 
ment appropriated, by the election of the 
creditor only, to the debt in question, is 
not a sutficient admission of that debt, for 
this purpose. Holmes v. Green, uh siij>. 
Neither is a payment, received under a 
dividend of the effects of a bankrupt pro- 
misor. Brandram v. Wharton, tib sup. 
In this last case, the opposing decision in 
Jackson v. Fairbank, 2 11. 151. 340, was 
considered and strongly disapproved ; but 
it was afterwards cited by Holroyd, J., 
as a valid decision, in Burleigh >•. Stott, 
8 B. & C. 36. The admission where one 
of the promisors is dead, to take the case 



him, must have been made in his lifetime; 
Burleigh v. Stott, supra; Slatter v. Law- 
son, 1 B. & Ad. 396 ; and by a party origi- 
nally liable ; Atkins v. Ti-edgold, 2 B. & 
C. 23. This effect of the admission of 
indebtment by one of several joint promi- 
sors, as to cases barred by the statute of 
limitations, when it is merely a verbal ad- 
mission, without part payment, is now 
restricted in England, to the party making 
the admission, by Stat. 9, Geo. IV. c. 14, 
(Lord Tenterden's Act.)^ So in Massa- 
clitisetts, by Gen. Stat. ch. 155,* § 14, 16; 
and in Vennant, Rev. St. ch. 58, §§ 23, 27. 
The application of this doctrine to part- 
ners, after the dissolution of tlie partner- 
ship, has already been considered. Supra, 
§ 112, note. Wlijether a written acknowl 
edgment, made by one of several partners, 
stands upon difierent ground from that of 
a similar admission hy one of several joint 
contractors, is an open question. Clark v 
Alexander, 8 Jur. 496, 498. See post, vol. 
2, §§ 441, 444 ; Pierce v. Wood, 3 Poster, 
520. 

1 Burleigh v. Stott, 8 B. & C. 36 ; 
Munderson r. Reeve, 2 Stark. Evid. 484 ; 
Wvatt r. Hodson, 8 Bing. 309 ; Cliippen- 
daie V. Thurston, 4 C. & P. 98 ; 1 INI. & M. 
411, s. c; Pease v. Hirst, 10 B. & C. 122. 
But it must be distinctly shown to be a 
jiaymcnt on account of the particular debt. 
Holme ('. Green, 1 Stark. R. 488. 

- Atkins V. Sanger et uL, 1 Pick. 192. 
See also Jackson v. Vail, 7 Wend. 125; 
Osgood V. The Manhattan Co., 3 Cowen, 
612. 

3 Lowe V. Boteler et ah, 4 Har. & 
IMcllen. 346 ; Vicary's case, 1 Gilbert, 
Evid. by Lotft, p. 59, note. 



18 



20G LAW OF EVIDEN^CE. [PART 11. 

appeal l»c clnii'cliwardens and overseers of the poor of the parish.^ 
The same prineiple is now ajiplied in England to all other prosecu- 
tions against towns and parishes, in respect to the declarations of 
ratable inJiahltants, they being su))stantially parties to the record.^ 
Nor is it necessary first to call the inhabitant, and show that he 
refuses to be examined, in order to admit his declarations.^ And 
the same principle would seem to apply to the inhal)itants of 
towns, counties, or other territorial political divisions of this coun- 
try, who sue and are prosecuted as inhabitants, eo nomine, and 
are termed quasi corporations. Being parties, personally liable, 
their declarations are admissible, though the value of the evidence 
may, from circumstances, be exceedingly light.* [*We believe the 
practice is not general, in the American states, to admit the dec- 
larations of the members of a corporation, as evidence against the 
corporation itself. And it seems to us, that upon principle they 
are clearly inadmissible. There is no rule of law better settled 
than that the admission s of a shareholder will not bind the corpo- 
ratioii. Nor will the admission of a director or agent of a private 
corporation bind the company, except as a part of the res gestce. 
And it will make no difference that the action is in the corporate 
name of the President and Directors ; that does not make them 
parties in person. And we see no more reason why the admis- 
sions o? the inhabitants of a town or parish should bind the 
municipality, l)ccausc the action happens to be in form, in the 
name of such inhabitants, than that all the admissions or declara- 
tions of the people at large should be evidence against the public 
prosecutor in criminal proceedings, when they are instituted in 
the name of The People, which we believe would be regarded as 
an absurdity, by every one. We conclude, therefore, that in no 

1 Eex y. Inliabitants of Ilardwick, 11 enacted. LL. Tmno7i< (TJev. Code, 1839). 

East, 579. See snimi, §§ 128, 129. ch. 81, § 18 ; Mas.mchitsdts, Kev. Stat. ch. 

•^ Kegina v. Adderbury, 5 Ad. & El. 94, § 54; Delaware (Rev. Co.lc, 1829), p. 

187, N. 8. 444 ; New York, Kev. Stat. vol. 1, pp. 

«' Rex V. Inhabitants of Whitley Lower, 408, 439 (8d edit.) ; Maine, Rev. Stat. 1840, 

1 M. & S. t)87; Rex v. Inhabitiuits of ch. 115, §75; New Hampshire, Rev. Stat. 
Woburn, 10 East, 395. 1842, ch. 188, § 12; Peimsi/lvania, Dunl. 

* 11 East, 58t), per Ld. Ellenborongh ; Dig. pp. 215, 913, 1019, 1165; MicMjan, 

2 Stark. Evid. 580. The statutes render- Rev. Stat. 184G, ch. 102, § 81. In several 
iiig 7/((/s/ corjiorators competent witnesses States, tlie interest of inhabitants, merely 
(.see 54 (Jeo. III. c. 170; 3 & 4 Vict. c. 25) as such, has been deemed too remote and 
are not understood as interfering with the contingent, as well as too minute, to dis- 
rule of evidence respecting admissions, qualify them, and they have been held 
Phil, and Am. on Evid. 395, and n. (2) ; competent at common law. Eustis v. 
1 I'hil. Evid. 375, n. (2). In some of the Parker, 1 New Ilamp. 273; Cornwell v. 
United States, similar statutes have been Isham, 1 Day, 35; Fuller v. Hampton, 5 



CHAP, XI.] OF ADMISSIONS. 207 

such case can tlic admission or declaration of a corporator be fairly 
regarded as evidence against the corporation.^] 

§ 176. It is a joint interest^ and not a mere community of interest, 
that renders such admfssions receivable. Therefore the admis-: 
sions of one executor are not received, to take a case out of the; 
statute of limitations, as against his co-executor.^ Nor is an' ;,V 
acknowledgment of indebtmcnt by one executor admissible against 
his co-executor, to establish the original demand.^ The admission 
of the receipt of money, by one of several trustees, is not received 
to charge the other trustees.^ Nor is there such joint interest 
between a surviving promisor, and the executor of his co-promisor, 
as to make the act or admission of the one sufficient to bind the i 
other .^ Neither will the admission of one, who was joint promisor j 
with a feme sole, be received to charge her husband, after the j 
marriage, in an action against them all, upon a plea of the statute I 
of limitations.^ For tlie same reason, namely, the absence of 
a joint interest, the admissions of one tenant in common are not 
receivable against his co-tenant, though both are parties on the 
same side in the suit.''' Nor are the admissions of one of several 
devisees or legatees admissible to impeach the validity of the will, 
where they may effect others, not in privity with him.^ Neither j 
are the admissions of one defendant evidence against the other,/ 
in an action on the case for the mere negligence of both.^ 

§ 177. It is obvious that an apparent joint interest is not suffi- 

• 

Conn. 416; Falls r. Belknap, 1 Johns. Rawl. 75; Hathaway v. Haskell, 9 Pick. 

486 ; Blooclgooa v. Jamaica, 12 Johns. 284 ; 42. 

ex parte Kip, 1 Paige, 613 ; Corwein r. ^ Pittnam v. Foster et al. 1 B. & C. 

Hames, 11 Jolins. 76 ; Orange v. Spring- 248. 

fieki, 1 Southard, 186 ; State v. Davidson, ^ Dan et al. v. Brown et al., 4 Cowen, 

1 Bayley, 35; Jonesborougli v. McKee, 2 483, 492. And see Smith v. Vincent, 15 

Yerger, 167; Gass v. Gass, 3 Humph. Conn. R. 1. 
278, 285. See infra, § 331. « Hauberger v. Root, 6 Watts & Serg. 

1 [* Watertown v. Cowen, 4 Paige, 431. 
510 ; Burlington v. Calais, 1 Vt. R. 385 ; » Daniels v. Potter, 1 M. & M. 501 ; 

Low V. Perkins, 10 Vt. R. 532.] supra, § 111. Neither is there such privity 

^ TuUock i\ Dunn, R. & M. 416. Qu. among the members of a board of public 

and see Ilammon v. Huntley, 4 Cowen, ofKcers, as to make the admissions of one 

41)3. But the declarations of an e.xecutor binding on all. Lockwood v. Smitli et al. 

or administrator are admissible against 5 Day, 309. Nor among several indorsers 

liiin, in any suit by or against him in that of a promissory note. Siaymaker v. 

character. Faunce v. Gray, 21 Pick. 243. Gundacker's Ex'r, 10 Serg. & Rawl. 75. 

^ Hammon v. Huntley, 4 Cowen, 493 ; Nor between executors and heirs or devi- 

James r. Hackley, 16 Johns. 277; For- sees. Osgood u. Manhattan Co., 3 Cowen, 

syth V. Ganson, 5 Wend. 558. 611. [*'rhe same rule applies to the 

* Davies v. Ridge et al., 3 Esp. 101. admissions of co-defendants in actions 

5 Atkins V. Tredgold et al., 2 B. & C. of trover. Edgerton v. Wolf, 6 Gray, 

23 ; Slater r. Lawson, 1 B. & Ad. 396 ; Slay- 453.] 
maker o. Gundacker's Ex'r, 10 Serg. & 



208 



LAW OF EVIDENCE. 



[part ir. 



cieitl t(j i-L-ndcr the admissions of one party receivable against his 
eoni]jauious, where the reality of that interest is the point in con- 
troversi/. A f(jun(latiuii must first be hiid, liy showing, primd 
faeie, that a joint interest exists. Therefore, in an action against 
several joint makers of a promissory note, the execution of which 
was the point in issue, the admission of his signature only by one 
defendant was held not sullicient to entitle the ])laintiir to recover 
against him and the others, though theirs had been proved ; the 
point to be proved against all being a joint promise Ijy all.^ And 
where it is sovight to charge several as partners, an admission of 

(the fact of partnership by one is not receivable in evidence against 
.any of the others, to prove the partnership. It is only after the 
partnership is shown to exist, l)y i)roof satisfactoiy to the judge, 
^hat the admission of one of the parties is received, in order to 
affect the others.^ If they sue upon a promise to them as partners, 
the admission of one is evidence against all, even though it goes 
to a denial of the joint riglit of action, the partnership being con- 
clusively admitted l)y the form of action.-^ 

§ 178. In general, the answer of one defendant in chancery 
cannot be read in evidence against his co-defendant ; the reason 
l»eing, that, as there is no issue between them, there can have 
been no opportunity for cross-examination.* But this rule does 
not apply to cases where tlie other defendant claims througli him, 
whose answer is otlercd in evidence ; nor to cases where they have 
a ji)int interest, either as partners, or otherwise, in the trans- 
action.^ Wlierever the confession of any party would be good 
evidfMico iVi'iiiust niiother, in such case, his .answer, a fortio ri, may 
be read a''aiii>l tlic lalter.^- 



1 Gray v. Palmer et al. 1 Esp. 135; 
[Boswell V. Blacktnan, 12 (ieo. 5'.»1.] 

- Nichols V. Dowding et id. 1 Stark. R. 
81 ; Grant (-•. Jackson et al. I'cakc's Cas. 
204 ; JJurjiess v. Lane et al. 3 Greenl. IGo; 
Grafton Bank ?;. Moore, 13 N. Ilainp. 99. 
See siijira, § 112; yw.s/, vol. 2, § 481; La- 
tham i\ Kenniston, 13 N. llamp. 203 ; 
AVhitney v. Ferris, 10 Johns. 66 ; Wood 
V. Hraddick, 1 Taunt. 104 ; Sangster v. 
Mazzaredo et al. 1 Stark. R. 161; Van 
Rcimsdyk r. Kane, 1 Gall. 63.5; Har- 
ris V. Wilson, 7 Wend. 57 ; Buckman 
V. Barnum, 15 Conn. R. 68; [AUcott v. 
Strong, 9 Cush. 323; Dutton v. Wood- 
man, 11). 255 ; Rich v. Flanders, 39 N. 
Ilamp. 304.] 

^ Lucas et al. v. I)e La Cour, 1 M. & S. 
249. 



4 Jones V. Tuberville, 2 Ves. 11 ; 
Morse v. Royall, 12 Ves. 355, 360; Leeds 
?A The Marine Ins. Co. of Alexandria, 
2 Wheat. 380 ; Gresley on Eq. Evid. 24 ; 
Field i\ Holland, 6 Cranch, 8; Clark's 
E.x'rs ('. Van Ueimsdyk, 9 Cranch, 153; 
Van Reimsdyk v. Kane, 1 Gall. 630; 
Parker v. Morrell, 12 Jur. 2-53 ; 2 C. &. K. 
599 ; Morris v. Nixon, 1 How. s. c. Rep. 
48. 

5 Field V. Holland, 6 Cranch, 8, 24 ; 
Clark's E.x'rs r. V^an Peimsdyk, 9 Cranch, 
153, 1.56; Oshorn v. United States Bank, 
9 Wheat. 738, 832; Christie v. Bishop, 1 
Barb. Ch. R. 105, 116. 

6 Van Reimsdyk o. Kane, 1 GaU. 630, 
635. 



CHAP. XI.] OP ADMISSIONS. 209 

§ 179. The admissions, which are thus receivable in evidence, 
must^as^wc liave seen, be those of a j[)crs6n havin^g~at the_tij«ie 
some interest in the matter, afterwards in controversy in the suit 
to wliic.li hp. ij^jji, p?\rtj. The admissions, therefore, of a guardiaii^ 
or of an executor or administrator^ made before lie was completely 
clothed with that trust, or of a procJiein amy, made before the 
commencement of the suit, cannot be received, either against 
the ward or infant in the one case, or against himself, as the rep- 
resentative of heirs, devisees, and creditors, in the other ; ^ though 
it may bind the person himself, when he is afterwards a party 
isuo jure, in another action. A solemn admission, however, made 
in good faith, in a pending suit, for the purpose of that trial only, 
is governed by other considerations. Thus, the plea of nolo con- \ 
tendere, in a criminal case, is an admission for that trial only. ! 
One object of it is, to prevent the proceedings being used in any , 
other place ; and therefore it is held inadmissible in a civil action I 
against the same party. ^ So, the answer of the guardian of an i 
infant defendant in chancery can never be read against the infant ' 
in another suit ; for its office was only to bring the infant into \ 
court and make him a party .^ Bvit it may be used against the i 
guardian, when he afterwards is a party in his private capacity, ' 
for it is his own admission upon oath.'^ Neither can the admission I 
of a married tvoman. answering jointly with her husband, be after- | 
wards read against her, it being considered as the answer of the I 
husband alone.^ 

§ 180. We are next to consider the admissions of persons who 

1 Webb i». Smith, R. &M. 106; Eraser Tenney y. Evans, 14 N. Hamu. 343. 

V. Marsh, 2 Stark. 41 ; Cowling v. Ely, Id. [*Legge ;;. Edwards, 2 L. J. eh. 125.] 

366 ; I'lant v. McEwen, 4 Conn. 544. So, '^ Guild v. Lee, 3 Law Keporter, p. 433. 

the admissions of one, before he became So, an admission in one plea cannot be 

assignee of a bankrujjt, are not receivable called in aid of the issue in anolher. 

against him, where suing as assignee. Een- Stracey v. Blake, 3 C. M. & R. 108 ; Jones 

wick V. Tliornton, 1 M. & M. 51. But see r. Flint, 2 P. & D. 5',)1; Gould on Plead- 

Smith V. Morgan, 2 M. & Rob. 257. Nor ing, 432, 433; Mr. Rand's note to Jaclcson 

is tlie statement of one partner admissible v. Stetson, 15 Mass. 58. 

against the others, in regard to matters ^ Eggleston v. Speke, alias Petit, 3 

whicli were transacted before lie became Mod. 258, 259; Hawkins v. Luscombe, 2 

a partner in the house, and in whicli he Swanst. 392, cases cited in note (a) ; 

had no interest prior to that time. Catt Story on Eq. Pi. 668; Gresley on Eq. 

j;. Howard, 3 Stark. R. 3. In trover by an Evid\ 24,323; Mills r. Dennis,' 3 Johns, 

infant suing by his guardian, the state- Ch. 367. 

nients of the guardian, tending to show * Beasly v. Magrath, 2 Sch. & Lefr. 

that the property was in fact his own, are 34; Gresley on Eq. Evid. 323. 

admissible against the plaintiff, as being ^ Hodgson v. Merest, 9 Price, 563; 

the declarations of a party to the record. Elston v. Wood, 2 My. & K. 678. 

18* 



210 



LAW OF EVIDENCE. 



[part II. 



are not parties to the record, but yet arc interested in the sulject- 
matter of the suit. The Law, in regard to this source of evidence, 
looks chiefly to the real parties in interest, and gives to their 
admissions tlic same weight, as though they were parties to the 
record. Thus the admissions of the cestui que trust of a bond;^ 
those of the persons interested in a policy effected in another's 
nuuio, for their benefit ;2 those of the shii>owners, in an action by 
the master for freight;^ those of the indemnifying creditor, in an 
action against the sheriff;'* those of the de})uty-shcriff, in an action 
against the high-slieriff for the misconduct of the deputy ;^ are all 
receivable against the party making tliem. And, in gen eral, the 
admissions of any party represented by another, are receivable in 
evidence against his representative.^ But lie're, aTso~,"it is to be 



1 Hanson r. Fiirker, 1 Wils. 257. See- 
also Harrison i\ Vallance, 1 Bing. 45. But 
tlie declarations of the cestui que trust are 
admissible, onh- so far as his interest and 
that of the trustee are identical. Doe v. 
Wainwright, 3 Nev. & P. S'.JS. And the 
nature of his interest must be shown, even 
though it be admitted that he is a cestui 
que trust. May v. Taylor, 6 M. i.^ Gr. 261. 
[The admissions of a silent partner, not a 
j)arty to record, may be given in evidence. 
Weed r. Kellogg, 6 McLean, 4L] [* But 
the admissions of one of several resluis que 
trust of real estate are not ailmissil)le to 
defeat the title of the trustee. Tope v. 
Devereux, 5 Gray, 4()U.] 

^ Bell V. Ansley, 1(3 East, 141, 143. 

8 Smith w. Lyon, 3 Campb. 4t')5. 

* Dowdon V. Fovvle, 4 Campb. 38 ; 
Dyke r. Ahlridgc, cited 7 T. 11. tlG5 ; 11 
Kast, 5S4 ; Young v. Smith, 6 Ksp. 121 ; 
Uarwood v. Keyes, 1 M. & Bob. 204; 
Proctor V. Lainson, 7 C. & P. C2'.t. 

" The admissions of an under-sheriff 
are not receivable in evidence against the 
slieriff, unless they tend to charge himself, 
lie being the real party in the cause. He 
is not regarded as the general officer of 
the sheriff', to all intents. Snowball v. 
Gooilricke, 4 B. & Ad. 541 ; though the 
a<lmissibility of his declarations has some- 
times been placed on that ground. Drake 
V. Sykes, 7 T. K 113. At other times 
they have been received on the ground, 
that, being liable over to the sheriff", he is 
the real ])arty to the suit. Yabsley v. 
Doblc, 1 Ld. Kaym. I'.JO. And where the 
sheritf has taken a general bond of indem- 
nity from tjic under-oflicer, and has given 
him notice of tlie ])endeMcy of the suit, 
and required him to defend it, the latter is 
in tact the real party in interest, whenever 



the sheriff is sued for his default ; and his 
admissions are clearly receivable, on prin- 
ciple, when made against himself. It has 
elsewhere been said, that the declarations 
of an under-sheriff are evidence to charge 
the sheriff" only where his acts might be 
given in evidence to charge him ; and 
then, rather as acts than as declarations, 
the declarations being considered as part 
of the res qestcv.. Wheeler v. Ilambright, 
9 Serg. & K. S'JG, 3U7. See Scott v. Mar- 
shall, 2 Cr. & Jer. 238; Jacobs v. Hum- 
phrey, 2 Cr. & Mecs. 413; 2 Tyrw. 272, 
S. c. But whenever a person is bound by 
the record, he is, for all purposes of evi- 
dence, the party in interest, and, as such, 
his admissions are receivable against him, 
both of the tacts it recites, and of the 
amount of damages, in all cases where, 
being liable over to the nominal defend- 
ant, he has been notified of the suit, and 
required to defend it. Clark's Ex'rs v. 
Carrington, 7 Cranch, 322; Hamilton v. 
Cutts, 4 Mass. 34'.i; Tyler v. Ulmer, 12 
Mass. 1C)G ; Duffield r. Scott, 3 T. K. 374 ; 
Kip ?". Brigham, (3 Jones, 158 ; 7 Johns. 
Itj8; Bender !;. Promberger, 4 Dall. 43(5. 
See also Carlisle v. Garland, 7 Bing. 298 ; 
North (•. Miles, 1 Campb. 389 ; Bowsher 
?;. Calley, 1 Campb. 391, note ; Underbill v. 
Wilson, 6 Bing. 697; Bond v. Ward, 1 
Nott & McCord, 21)1 ; Carmack r. The 
Couinionwealth, 5 Bimi. 181; Sloman v. 
Heme, 2 Esp. 695 ; Williams v. Bridges, 
2 Stark. R. 42 ; Savage v. Balch, 8 (ireenl. 
27. [Tlie admissions of a party named as 
an executor and legatee of a will, as Xx) the 
imsouiulness of the mind of the testator, 
are ad7nissii)le, upon a probate of the will. 
Ivobinson v. Hutchinson, 31 Vt. 44:i.| 

" Stark. Kvid. 26; North v. Miles, 1 
Campb. 390. 



CHAP. XI. J OF ADMISSIONS. 211 

observed, that the declarations or admissions must have been 
made while the party making them had some interest in the 
matter ; and they are receivable in evidence only so far as his own 
interests are concerned. Thus, the declaration of a bankrupt, 
made before his bankruptcy, is good evidence to charge his estate 
with a debt ; but not so, if it was made afterwards. ^ While the 
declarant is the only party in interest, no harm can possibly result 
from giving full effect to his admissions. He may be supposed 
best to know the extent of his own rights, and to be least of all 
disposed to concede away any that actually belonged to him. But 
an admission, made after other persons have acquired separate 
rights in tlie same subject-matter, cannot be received to disparage 
their title, however it may affect that of the declarant himself. 
This most just and equitable doctrine will be found to apply not 
only to admissions made by bankrupts and insolvents, but to the 
case of vendor and vendee, payee and indorsee, grantor and 
grantee, and, generally, to be the pervading doctrine, in all cases 
of rights acquired in good faith, previous to the time of making 
tlie admissions in question. ^ 

§ 181. In some cases, the admissions of third pei^sons, stra ngers 
to the suit, are receivable. This arises, when the issue is substan- 
tially upon the mutual rights of such persons at a particular time ; 
in which case the practice is, to let in such evidence in general, 
as would be legally admissible in an action between the parties 
themselves. Thus, in an action against the sheriff for an escape, 
the debtor's acknowledgment of the debt, being sufficient to 
charge him, in the original action, is sufficient, as against the 
sheriff, to support the averment in the declaration, that the party 
escaping was so indebted.^ So, an admission of joint liability by 
a third person has been held sufficient evidence on the part of the 
defendant, to support a plea in abatement for the non-joinder of 
such person, as defendant in the suit ; it being admissible in an 
action against him for the same cause.^ And the admissions of 
a bankrupt, made before the act of bankruptcy, are receivable in 

1 Bateman v. Bailey, 5 T. R. 513; Goldsboroiigh, 9 Serg. & E. 47; Babb 
Smith V. Simmes, 1 I':sp. 330; Deady v. v. Clemson, 12 Serg. & R. 328; [Infra, 
Harrison, 1 Stark. R. 60 ; [Infra, § I'JO.] § 190.] 

2 Bartlett v. Delprat, 4 Mass. 702, 708. » gioman v. Heme, 2 Esp. 695 ; Wil- 
Clarke r. Waite, 12 Mass. 439; Bridge );. liains v- Bridges, 2 Stark. R. 42; Kemp- 
Eggleston, 14 Mass. 245, 250, 251 ; The- land v. Macauley, Peake's Cas. 65. 

nix r. Ingraham, 5 Johns. 412; Packer v. * Clay v. Langslow, 1 M. & M. 45. 

Gonsalus, 1 Serg. & R. 526 ; Patton v. Sed qucere, and see infra, § 395. 



212 LAW OF EVIDENCE. [PART II. 

proof of the petitioning creditor's debt. His declarations, made 
after the act of bankruptcy, though admissible against himself, 
form an exception to this rule, because of the intervening rights 
of creditors, and the danger of fraud. ^ 

§ 182. The admissions of a third person are also receivable in 
evidence, against the party who has expressly referred another to 
him for information, in regard to an uncertain or disputed matter. 
In such cases, the party is bound by the declarations of tlic person 
referred to, in the same manner, and to the same extent, as if 
Ihey were made hy himself.^ Thus, uj)on a plea of lAene adminis- 
travit, where the executors wrote to the plaintiff, that if she wished 
for further information in regard to tlie assets, she should ap]»ly 
to a certain merchant in the city, they were held bound by the 
replies of the merchant to her inquiries upon that subject.'^ So, 
in assumpsit for goods sold, where tlie fact of the delivery of them 
by the carman was disputed, and the defendant said, " If he will 
say that he did deliver the goods, I will pay for them ; " he was 
held bound by the affirmative reply of the carman.^ 

§ 183. This principle extends to the case of an interpreter whose 
statements of what the party says are treated as identical with 
those of the party himself; and therefore may be proved by any 
person who heard them, without calling the interpreter.^ 

§ 184. Whether the answer of a person thus referred to is 
conclusive against the party docs not seem to have been settled. 

1 Hoare v. Coryton, 4 Taunt. 560 ; 2 ^ "\Villiams v. Innes, 1 Campb. 8G4. 
Rose, 158 ; Robson v. Kemp, 4 Esp. 234 ; * Daniel v. Pitt, 1 Canii)b. 3(j(), note ; 

Watts V. Thorpe, 1 Campb. 376 ; Small- 6 Esp. 74, s. c. ; Brock v. Kent, lb. ; Burt 

combe V. Barges, McClel. R. 45 ; 13 Price, v. Palmer, 5 Esp. 145; Hood i\ Reeve, 

136, s. c. ; Taylor v. Kinloch, 1 Stark. R. 3 C. & P. 532. 
175; 2 Stark. R. 5'.i4; Jarrett v. Leonard, 5 Fabrigas v. Mostyn, 11 St. Tr. 171. 

2 M. & S. 265. The dictuin of Lord Ken- The ca.ses of tlie reference of a disputcMl 
yon, in Dowton v. Cros.s, 1 Esp. KiS, that lial)ility to the opinion of legal coun.-el, 
the admissions of a bankrupt, made after and of a disi)uted fact regarding a mine to 
the act of bankruptcy, but before the a miner's jury, have been treated as fall- 
commission issued, are receivable, is con- ing luider this head ; the decisions being 
tradicted in 13 I'rice, 153, 154, and over- held binding, as tiie answers of persons 
ruled by that and the other cases above referred to. How far the circumstance, 
cited. See also Bernasconi v. Farebrother, that if treated as awards, being in writing, 

3 B. & Ai\. 372. [*The evidence of the they would have been void for want of a 
principal will not charge the surety, es- stamp, may have leil the learned judges 
peciaily after the transaction is terminated, to consider them in another light, does not 
Chelmsford Co. v. Demarest, 7 Gray, 1. ajjpear. Sybray v. Wliite, 1 lil. & \V. 435. 
But the admission of the surety is good But in this country, where no stamj) is 
against hotii in tiie absence of collusion, required, they would more naturally be 
Chapel )•. Washburn, 11 Ind. 3U3.] regarded iis awards ui)on parol submis- 

' [Turner i'. Yates, 16 How. (U. S.) 14; sions, and therefore conclusive, unless im- 
Cliapman v. Twiichell, 37 Maine, 59 ; peached for causes recognized in the law 
Chadsey v. Greene, 24 Conn. 562.] of awards. 



CHAP.' XI.] OF ADMISSIONS. 213 

Where the plaintiff had offered to rest his claim upon the defend- 
ant's affidavit, which was accordingly taken, Lord Kenyon held, 
that he was conclusively bound, even though the affidavit had 
been false ; and he added, that, to make such a proposition and 
afterwards to recede from it was mala fides; but that, besides 
that, it might be turned to very improper purposes, such as to 
entrap the witness, or to find out how far the party's evidence 
would go in support of his casc.^ But in a later case, where the 
question was upon the identity of a horse, in the defendant's pos- 
session, with one lost by the plaintiff, and the plaintiff had said, 
that if the defendant would take his oath that the horse was his, 
he should keep him, and he made oath accordingly ; Lord Ten- 
terden observed, that considering the loose manner in which the 
evidence had been given, he would not receive it as conclusive ; 
but that it was a circumstance on which he should not fail to 
remark to the jury.^ And certainly the opinion of Lord Tenter- 
den, indicated by what fell from him in this case, more perfectly 
harmonizes with other parts of the law, especially as it is opposed 
to any further extension of the doctrine of estoppels, which some- 
times precludes the investigation of truth. The purposes of jus- 
tice and policy are sufficiently answered, by throwing the burden 
of proof on the opposing party, as in a case of an award, and hold- 
ing him bound, unless he impeaches the test referred to by clear 
proof of fraud or mistake.^ 

' § 185. The admissions of the ivife will bind the husband, only 
where she has authority to make them.'* This authority does not 
result, by mere operation of law, from the relation of husljand and 
wife ; but is a question of fact, to be found by the jury, as in other 
cases of agency ; for though this relation is peculiar in its circum- 
stances, from its close intimacy and its very nature, yet it is not 
pecidiar in its principles. As the wife is seldom expressly con- 
stituted the agent of the husband, the cases on this subject are 

1 Stevens v. Thacker, Peake's Cas. Anderson i\ Sanderson, 2 Stark. R. 204; 

187; Lloyd v. WilUin, 1 Esp. 178; Deles- Carey v. Adkins, 4 Canii)b. 92. In Wal- 

line ('. Greenland, 1 Bay, 458, ace., where ton v. Green, 1 C. & 1'. 621, which was an 

the oath of a third person was referred to. action for necessaries furnished to the 

See Keg. t". Moreau, 36 Leg. Obs. (39; 11 wife, the defence being that she was 

Ad. & El. 1028, as to the admissibility of turned out of doors for adultery, the hus- 

an award as an admission of the party, band was permitted to prove her confes- 

//;/ra, § 537, n. (1). sions of the fact, just previous to his 

- Garnett v. Ball, 3 Stark. R. 160. turning her away ; but this was eontem- 

^ Whitehead v. Tattersall, 1 Ad. & El. porary with the transaction of which it 

491. formed a part. 

* Emerson v. Blonden, 1 Esp. 142; 



214 LAW OF EVIDENCE. [PART II. 

almost uuivcrsully those of implied aulliority, turning upon the 
degree in whieh the husband permitted the wife to participate, 
either in the transaction of his affairs in general, or in the par- 
ticular matter in question. AVhere he sues for her wages, the 
fact that she earned them does not authorize her to bind him by 
her admissions of payment ; ^ nor can her declarations affect him, 
where he sues with her in her right ; for in these, and similar 
cases, the right is his own, though acquired through her instru- 
mentality."'^ But in regard to the inference of her agency from 
circumstances, the question has been left to the jury with great 
latitude, both as to the fact of agency, and the time of the admis- 
sions. Thus, it has been held competent for them to infer authority 
in her to accept a notice and direction, in regard to a particular 
transaction in her husband's trade, from the circumstance of her 
being seen twice in his counting-room, appearing to conduct his 
business i-elating to that transaction, and once giving orders to 
the foreman.^ And in an action against the husband, for goods 
furnished to the wife, while in the country, where she was occa- 
sionally visited by him, h er let ter to the plaintiff, admitting the 
debt, and apologizing for the non-payment, though written several 
years after the transaction, was held by Lord EUcnborough suffi- 
cient to take the case out of the statute of limitations.*^) 

§ 186. The admissions of attorneys of r-ecord bind their clients, 
in all matters relating to the progress and trial of the cause. But, 
to this end, they must be distinct and formal, or such as are 
termed solemn admissions, "made for the express purpose of allevi- 
ating the stringency of some rule of practice, or of dispensing with 
the formal proof of some fact at the trial. In such cases, they are 
in general conclusive ; and may be given in evidence, even upon 
a new trial.^ But other admissions, which are mere matters of 



1 Hall V. Hill, 2 Str. 1094. An au- peneil before the marriage, receivable after 

thority to tlie wife to conduct the ordinary liis death, to attect tlie rights of the survi- 

business of the shop in her husband's ving wife. Smith v. Scudder, 11 Serg. & 

absence does not authorize her to bind K. 325. 

him by an admission, in regard to the ■' riimmer v. Sells, 3 Nov. & M. 422. 

tenancy or tlie rent of the slio]). Meredith And see Kiley v. Suydara, 4 Barb. s. C. 

V. Footner, 11 M. & W. 202 ; [Jordan v. K. 222. 
Hubbard, 20 Ala. 433.] •* (jregory v. Parker, 1 Campb. 394; 

■^ Albany. Pritchet.OT.R. 680; Kelley Palethorp v. Furnish, 2 Esp. 511, note, 

r. Small, 2 Esp. 710; Denn v. White, 7 See also Cliflbrd v. Burton, 1 liing. 199; 

T. H. 112, as to her admission of a trcs- 8 More, 10, s. c. ; Petty v. Anderson, 3 

jmss. llodgkinson i\ Fletcher, 4 Campb. Bing. 170; Cotes v. Davis, 1 Campb. 485. 
70. Neitlier are his ailniissions, as to '" Doe v. Bird, 7 C. & P. ; Langley v. 

facts respecting her ijroperty, which hap- Ld. Oxford, 1 M. & W. 508. 



CHAP. XI.] OF ADMISSIONS. 215 

conversation with an attorney, though they relate to the facts in 
controversy, cannot be received in evidence against his client. 
The reason of the distinction is found in the nature and extent of 
the authority given ; the attorney being constituted for the man- 
agement of the cause in court, an.d for nothing more.^ If the 
admission is made before suit, it is equally binding, provided it 
appear that the attorney was already retained to appear in the 
cause.^ But in the absence of any evidence of retainer at that 
time in the cause, there must be some other proof of authority to 
make the admission.^ Where the attorney is already constituted 
in the cause, admissions made by his managing clerk or his agent 
are received as his own.^ 

§ 187. We are next to consider the admissions of a principal, ' 
as evidence in an action against the surety, upon his collateral 
undertaking. In the cases on this subject the main inquiry has 
been, whether the declarations of the principal were made during 
the transaction of the business for which the surety was bound, 
so as to become part of the res gestce. If so, they have been held 
admissible ; otherwise not. The surety is considered as bound j 
only for the actual conduct of th e pa rty, and^ not for wha tever lie 
miglifsaylieliaS (f one ;"*and therefore is entitled to proof of his 
«30iiductl)y original evidence, where it can be had ; excluding all 
declarations of the principal, made subsequent to the act, to which 
they relate, and out of the course of his official duty. Thus, 
where one guaranteed the payment for such goods as the plaintiffs 
should send to another, in the way of their trade; it was held, 
that the admissions of the principal debtor, that he had received 
goods, made after the time of their supposed delivery, were not 
receivable in evidence against the surety.^ So, if one becomes 
surety in a bond, conditioned for the faithful conduct of another 
as clerk, or collector, it is held, that, in an action on the bond 
against the surety, confessions of embezzlement, made by the 

1 Young V. Wright, 1 Campb. 139, 141 ; Griffitlis v. "Williams, 1 T. R. 710 ; Trus- 
Perkins i--. Hawkshaw, 2 Stark. R. 289 ; love v. Burton, 9 Moore, 64. As to the 
Elton V. Larkins, 1 M. & Rob. 196 ; Doe extent of certain admissions, see Holt v. 
V. Bird, 7 C. & P. 6 ; Doe v. Richards, 2 Squire, Ry. .& M. 282 ; Marshall v. Cliff, 
C. & K. 216; Watson v. King, 3 M. G. & 4 Campb. l;>5. The admission of the due 
Sc. 608; execution of a deed does not preclude the 

2 Marshall i'. ClifT, 4 Campb. 133. party from taking advantage of a variance. 
8 Wagstaff y. Wilson, 4 B. & Ad. 339. Goldie v. Shuttleworth, 1 Campb. 70. 

* Taylor v. Williams, 2 B. & Ad. 845, ^ Evans v. Beattie, 5 Esp. 26 ; Bacon 

856; Standage v. Creighton, 5 C. & P. v. Chesney, 1 Stark. R. 192; Longen- 
406 ; Taylor v. Eorster, 2 C & P. 195 ; ecker v. Hyde, 6 Biun. 1. 



210 LAW OF EVIDENCE. [PART II. 

principal after his dismissal, are not admissible in evidence-/ 
thongh, with regard to entries made in the course of his duty, it 
is otherwisc.2 A judgment, also, rendered against the princii)al, 
may be admitted as evidence of that foct, in an action against the 
surety.-'^ On the other hand, upon the same general ground it 
has l)een hehl, tliat, where the surety confides to the prineii)al 
the power of making a contract, he confides to him the power of 
furnishing evidence of the contract; and that, if the contract is 
made by parol, subsequent declarations of the principal are admis- 
si])le in evidence, though not conclusive. Thus, where a husband 
and wife agreed, by articles, to live separate, and C, as trustee 
and surety for the wife, covenanted to pay the husljand a sum 
of money, upon his delivering to the wife a carriage and horses 
for her separate use ; it was held, in an action by the hu^^band for 
the money, that the wife's admissions of the recci[)t by her of the 
carriage and horses were admissible.^ So, where A guaranteed 
the performance of any contract that B might make with C, the 
admissions and declarations of B were held admissible against A, 
to prove the contract.^ 

§ 188. But where the surety, being sued for the default of the 
principal, gives him notice of the pendency of the suit, and requests 
him to defend it ; if judgment goes against the surety, the record 
is conclusive evidence for him, in a subsequent action against the 
principal for indemnity ; for the principal has thus virtuaUy become 
party to it. It would seem, therefore, tiiat in such ease the dec- 
larations of the principal, as we have heretofore seen, become 
admissible, even though they operate against the surety.*^ 

§ 189. The admissions of one person are also evidence against 
another, in respect of privity between them. ^''^' The term 2>^'^vity 
denotes mutual or successive relationship to the same rights of 
property ; and privies are distributed into several classes, accord- 
ing to the manner of this relationship. ^' Thus, there are privies in 
estate, as, donor and donee, lessor and lessee, and joint-tenants ; 

1 Smith V. Whittingham, 6 C. & P. 78. 2 Whitnash v. Goorjjc, 8 B. & C. 556 ; 

See also Goss v. Watlington, 3 B. & B. Midiili-tou v. Melton, 10 B. & C. 317 ; 

132; Cutler v. Newiiii, Manning's Digest, Me(ialiey v. Alston, 2 M. & W. 213, 214. 
N. P. 137, per llohoyd, J., in ISl'.); 8 j^rmu-iuond y. Prestman, 13 Wheat. 

Dawes v. Shedd, 15 Mass. G, 9 ; Foxcroft 515. 

V. Kevins, 4 (ireenl. 72; Hayes v. Seaver, * Tenner v. Lewis, 10 Johns. 38. 

7 Greenl. 237; Respubhca v. Davis, 3 '"> Meade y. ^IcDowell, 5 Binn. 195. 

Ycales, 128; llotchkiss r. Lyon, 2 Blackf. « See supra, § 180, note (8), and cases 

222; Shelby v. The Govel-nnr, &c.. Id. tliere cited. [See Powers v. Nash, 37 

• 289 ; BeaU v. Beck, 3 Har. & Mcllen. 242. Maine, 322.] 



CHAP. XI.] OF ADMISSIONS. 217 

privies ill blood, as, heir and ancestor, and coparceners ; privies 
in re})resentatioii, as, executors and testator, administrators and 
intestate ; privies in law, where the law, without privity of blood 
or estate, casts the land upon another, as by escheat. All these 
are more generally classed into juivies in estate, privies in blood, 
and privies in law.^ The ground upon which admissions bind 
those in privity Avith the party making them is, that tliey are 
identified in interest ; and, of course, the rule extends no farther 
than this identity. The cases of coparceners and joint-tenants 
are assimilated to those of joint-promisors, partners, and others 
having a joint interest, which have already been considered.^ In 
other cases, where the party, by his admissions, has qualified his 
own right, and another claims to succeed him as heir, executor, 
or the like, he succeeds only to the right, as thus qualified, at the 
time when his title commenced ; and the admissions are receivable 
ill evidence against the representative, in the same manner as 
they would have been against the party represented. Thus, the 
declarations of the ancestor, that he held the land as the tenant 
of a third person, are admissible to show the seisin of that person, 
in an action brought by him against the heir for the land.^ Thus, 
also, where the defendant in a real action relied on a long posses- 
sion, he has been permitted, in proof of the adverse character of 
the possession, to give in e\:idence the declarations of one under 
whom the plaintiff claimed, that he had sold the land to the person 
under whom the defendant claimed.'^ And the declarations of an 
intestate are admissible against his administrator, or any other 
claiming in his riglit.^ The declarations, also, of the former 

1 Co. Lit. *271rt; Carver v. Jackson, 4 erley's case, 4 Co. 123, 124; supra, §§ 19, 

Peters, 1, 83; Wood's Inst. L. L. Eng. 20, 23, 24. [* Ueclarations by a tbrmer 

236; Tomlin's Law Diet, in Verb. Priu- owner of property under whom the party 

ies. But the achnissions of executors and claims title are, in general, evidence, ii' 

administrators are not receivable against made during the existence of his title, 

their co-executors or co-administrators. Hay ward Rubber Co. i". Duncklee, 30 Vt. 

Elwood V. Deifendorf, 5 Barb. s. c. R R. 2'J. See also Wheeler v. McCorristen, 

3'J8. Otlier divisions have been recog- 24 111. 210; Norton v. Kearney, 10 Wis. 

nized ; namely, ])rivity in tenure between 443.] 
landlord anil tenant; {)rivity in contract - Supra, §§ 174, 180. 

alone, or the relation between lessor and ^ Doe v. Tettett, 5 B. & Ad. 223 ; 2 

lessee, or heir and tenant in dower, or by Poth. on Obi. by Evans, p 2-34; supra, 

the courtesy, by the covenants of the latter, §§ 108, 109, and cases there cited, 
after he has assigned his term to a stran- * Brattle Street Church v. Hubbard, 2 

ger; privity in estate alone, between tlie Met. 303. And see Podgett r. Lawrence, 

lessee and the grantee of the reversion; 10 Paige, 170; Dorsey r. Dorsey, 3 II. & 

and privity in botli estate and contract, J. 410 ; Clary v. Grimes, 12 (J. & J. 31. 
as between lessor and lessee, &c. ; but ° Smith v. Smith, 3 Bing. n. c. 29; 

these are foreign from our present pur- Ivat v. i'incli, 1 Taunt. 141. 
pose. See Walker's case, 3 Co. 23 ; Bev- 

VOL. I. 19 



218 LAW OF EVIDENCE. . [PART II. 

occupant of a messuage, in respect of which the present occupant 
claimed a riglit of common, because of vicinage, are admissible 
evidence in disparagement of the right, they being made during 
his occupancy ; and, on the same princijjlc, other contemporaneous 
declarations of occupiers have been admitted, as evidence of the 
nature and extent of their title, against those claiming in privity 
of estate.^ Any admission by a landlord in a prior lease, which 
is relative to the matter in issue, and concerns the estate, has also 
been held admissible in evidence against a lessee who claims by 
a subsequent title.^ 

§ 190. The same principle holds in regard to admissions made hy 
the assignor of a personal contract or chattel, previous to the as- 
signment, while he remained the sole proprietor, and where the 
assignee must recover through the title of the assignor, and suc- 
ceeds only to tluit title as it stood at the time of its transfer. In 
such case, he is bound by the previous admissions of the assignor, 
in disparagement of his own apparent title. But this is true only 
where there is an identity of interest between the assignor and 
assignee ; and such identity is deemed to exist not only where 
the latter is expressly the mere agent and representative of the 
former, but also where the assignee has acquired a title with 
actual notice of the true state of that of the assignor, as qualified 
by the admissions in question, or where he has purchased a de- 

1 Walker v. Broaflstock, 1 Esp. 458; v. Ciirrinsxton, 1 .C. & P. 329, 330, -n.; 

Doe V. Austin, 9 Bing. 41 ; Davies v. Maddisoii v. Nuttal, 6 Bing. 226. So, the 

Pierce, 2 T. R. 53 ; Doe v. Rickarby, 5 answer of a former rector. De Wlielp- 

Esp. 4; Doe v. Jones, 1 Campb. 3G7. dale r. Milburn, 5 Price, 485. An answer 

Ancient maps, books of survey, &c., in chancery is also admissible in evidence 

though mere private documents, are fre- against any person actually claiming un- 

quently admissible on this ground, where der the party who put it in ; and it lias 

there is a privity in esbite between the been held prima facie evidence against 

former proi)rietor, untler whose direction persons generally reputed to claim under 

they were made, and the present claim- \\n\\, at least so far as to call upon thoni to 

ant, against whom they are oHL'red. Bull, show another title from a stranger. Earl 

N. P. 283; Brigman v. Jennings, 1 Ld. of Sussex v. Tenii)le, 1 Ld. Raym. 310; 

Raym. 734 ; [.s«y)n/, § 145, note.] So, as Countess of Dartmouth v. Rolierts, l(j 

to receipts for rent, by a former grantor, East, 334, 339, 340. So, of other declara- 

under whom both jiarties claimed. Doe tions of the former i)arty in possession, 

V. Seaton, 2 Ad. & VA. 171. which would have been good against him- 

^ Creiise v. Barrett, 1 Crompt. Mees. self, and were made while he was in pos- 
& R. 919, 932. See also Doe v. Cole, 6 session. Jackson v. Bard, 4 .lohns. 230, 
C. & P, 359, that a letter written by a for- 234; Norton v. Pettibone, 7 Conn. 319; 
mer vicar, resj)ecting the property of the Weiilman v. Kohr, 4 Serg. & R. 174; su- 
vicarage, is evidence against his successor, pra, §§ 23, 24. [* The declarations of the 
in an ejectment for the same i)roperty, in intestate are evidence against his admin- 
right of his vicarage. The receipts, also, istrator, as a privy by representation, 
of a vicar's lessee, it seems, are admissible upon the questiori of having made a dona- 
against the vicar, in ()roof of a imxiits, by tio mortis causa. Smith v. Maine, 25 Barb, 
reason of the privity between them. Jones 33.J 



CHAP. XI.] 



OP ADMISSIONS. 



219 



maud already stale, or otherwise infected with circumstances of 
suspicion. 1 Thus, the declarations of a former holder of a prom- 
issory note, negotiated before it was overdue, showing that it 
was given without consideration, though made while he held the 
note, are not admissible against the indorsee ; for, as was subse- 
quently observed by Farke, J., " the righ t of a person, liolding bj 
a^ood title, is not to be cut down by the a'cknowludginent of a 
former holder, tha t h e had no title. " ^ But in an action by the 
indorsee of a bill or note dishonored before it was negotiated, 
the declarations of the indorser, made while the interest was in 
him, are admissible in evidence for the defendant.^ 



1 Harrison v. Vallance, 1 Bins?. 38 ; 
Bayley on Bills, by Phillips anJ iSewall, 
pp. 502, 503, and notes (2d Am. edit.); 
Gibblehouse v. Strong, 3 Rawle, 437; 
Ilatcli V. Dennis, 1 Fairf. 244 ; Snelgrove 
V. Martin, 2 McCord, 241, 243. [The 
declarations and admissions of an assignor 
of personal property, as a patent right, 
made after he has i>arted with his interest, 
in it, are inadmissible either to show a 
■want of title in him, or to atfect the qual- 
ity of the article, or to impair the right of 
the purchaser in any respect. By Nelson, 
J., Many v. Jagger, 1 Blatchf. C. C. R. 
372, 376.] 

2 Barough r. White, 4 B. & C. 325, 
explained in Woolway i\ Rowe, 1 Ad. & 
El. 114, 116; Shaw v. Broom, 4 D. & R. 
730; Smith v. De Wruitz, Ry. & M. 212; 
Beauchamp i\ Parry, 1 B. & Ad. 8'J ; 
Hackett v. Martin, 8 Greenl. 77 ; Parker 
V. Grout, 11 Mass. 157, n. ; Jones v. Win- 
ter, 13 Mass. 304 ; Dunn i*. Snell, 15 Mass. 
481; Paige v. Cagwin, 7 HiU, N. Y. R. 
861. In Connecticut, it seems to have been 
held otherwise. Johnson v. Blackman, 
11 Conn. 342 ; Woodruff v. Westcott, 12 
Conn. 134. So, in Vermont, Sargeant v. 
Sargeant, 3 Washb. 371. [The statements 
of an insolvent debtor, whether made be- 
fore or after a sale, alleged to be fraudu- 
lent, as to the value of the property sold, 
and of his other property, are inadmissible 
against his assignee in insolvency, to show 
that the sale was in good faith in a suit by 
the assignee against tlie purchaser of said 
property to i-ecover its value. Heywood 
V. Reed, 4 Gray, 574. See also Jones v. 
Church, &c., 2f Barb. 161.] [* As a gene- 
ral rule the declarations of the assignor in 
the case of an alleged fraudulent sale, are 
not admissible evidence against the as- 
signee, unless made before the assign- 
ment, and with a view to show its pur- 
pose, so as to form part of the re.i (jeMue. 
But if made wliile the assignor remained 



in possession, although after the execution 
of the assignment, tliey are held competent 
to characterize the transaction. Adams 
V. Davidson, 10 N. Y. Ct. App. 309. And 
where a combination between the assignor 
and assignee is previously established, the 
declarations of the assignor will be evi- 
dence against the assignee to the fullest 
extent, although made after the assign- 
ment. Cuyler v. McCartney, 33 Barb. 
165.] 

3 Bayley on Bills, 502, 503, and notes 
(2d. Am. ed. by Phillips & Sewall), Pocock 
V. Billings, Ry. & M. 127. See also Story 
on Bills, § 220; Chitty on Bills, 650 (8th 
edit.); Hatch v. Dennis, 1 Pairf. 249; 
Shirley v. Todd, 9 Greenl. 83. [In a suit 
against the maker of a promissory note 
by one who took it when overdue, the 
declarations of a prior holder, made while 
he held the note, after it was due, are 
admissible in evidence to show payment 
to such prior holder, or any right of set-off 
which the maker had against him. But 
such declarations, made by such holder 
before he took the note are inadmissible. 
So such declarations, made by such holder 
after assigning the note to one from whom 
the plaintiff since took it, are inadmissible 
unless such assignment was conditioned 
to be void upon the payment to the as- 
signor of a less sum than the amount due 
on the note, in which case such declara- 
tions are admissible in evidence for the 
defendant to the extent of the interest 
remaining in such prior holder. Bond i-. 
Pitzpatrick, 4 Gray, 89, 92; Sylvester 
V. Crapo, 15 Pick. 92; Fisher v. True, 38 
Maine, 534 ; McLanathan v. Patten, 39 
lb. 142 ; Scanimon v. Scannnon, 33 N. H. 
52, 58 ; Criddle v. Criddle, 21 Mis. 522.] 
[* See Jermain v. Denniston, 6 N. Y. Ct. 
App. 276; Booth v. Swezey, 8 Id. 276; 
Tousley v. Barry, 16 Id. 497. The prac- 
tice in the different states, in regard to 
admitting the declarations of the owner of 



220 



LAW OF EVIDENCE. 



[part II. 



§ 101. These admissions by third persons, as they derive their 
value and legal force from the relation of the party making them 
to the property in question, and are taken as parts of the res r/c.^ta', 
may be j^roved hy any competent witness wlio heard them, without 
calling the party by whom they were made. The question is, 
whether he made the admission, and not merely, wliefircr the tact 
is as he admitted it to be. Its truth, where the admission is not 
conclusive (and it seldom is so), may be controverted by other 
testimony ; even by calliug the party himself, when competent ; 
but it is not necessary to produce him, his declarations, when 
admissible at all, being admissible as original evidence, and not 
as hearsay.^ 

§ 192. We are next to consider the thne and circumstances of 
the admission. And here it is to be observed, that confidential 
overtures of pacification, and any other offers or propositions 
between litigating parties, expressly stated to be made without 
prejudice, are excluded on grounds of public policy.^ For witliout 
this protective rule, it would often be difficult to take any step 
towards an amicable compromise or adjustment. A distinction 
is taken between the admission of particular facts, and an offer of 
a sum of money to buy peace. For, as Lord Mansfield observed, 



a chose in action, wliile hoMiiig the same, 
it not beins nejioliable, or if so, being at 
tlie time ovenhie, to the eftet-t tiiat tlie 
same had been paid, or is otherwise in- 
vaUd, and this as against a subsequent 
bona fide owner, is not uniform. See Mil- 
ler V. Bingham, 2'J Vt. K. 82, where such 
declarations were held admissible. The 
cases cited above from New York show 
tiiat such declarations are not there ad- 
missible. The English ride seems in 
liivor of receiving such declarations, as to 
the title of all personalty. Harrison v. 
Vallance, 1 Bing. 45 ; Siiaw v. Broom, 4 
Dow. & Ky. 7;>U; Pocock ;.'. Billing, 2 
Bing. 2()'.}. But see Carpenter v. IloUis- 
ter, l:'. Vt. R. 552, where the question, as 
to real estate, is fully discussed.] 

1 Supra, §§ 101, 113, 114, and cases 
there cited; Clark h\ llougham, 2 B. & 
C. 149: Mountstephen i'. Brooke, 3 B. 
& Aid. 141 ; Woolway v. Rowe, 1 Ad. & 
El. 114; Payson v. Good, 3 Kerr, 272. 

2 Cory V. Bretton, 4 C. & P. 462; 
Ilealey i-. Thatcher, 8 C. & P. 388. Com- 
munications between the clerk of the 
plaintitTs attorney, and the attorney of 
the defendant, witli a view to a comprom- 
ise, have been licld i)rivilegod, under this 
rule. Jardjne v. yiieridan, 2 C. & K. 24. 



fin .Tones v. Foxall, 13 Eng. Law & Eq. 

141), 145, Sir John Ilomilly, Master of the 
Rolls, said : " I shall, as far .as I am able, 
in all cases, endeavor to suppress a jirac- 
li(;e which, when I was first acquainted 
with the profession, was rarely, if ever, 
ventured upon ; but wliich, according to 
my experience, has been common of late, 
namely, that of attempting to convert of- 
fers of compromise into admissions .and 
acts prejudicial to the parties m.akuig 
them. If this were permitted, the efTect 
would l)e, that no attempt to compromise 
a suit would ever be made. If no reser- 
vation of the })arties who make an offer 
of comi)romise could prevent that ofler and 
the letters from being afterwards given in 
evidence, and made use of against them, 
it is obvious that no such letters would be 
written or offers made. In my opinion, 
such letters and offers are admissible for 
one purpose only, i.e., to show that an at- 
tempt has been made to compromise the 
suit, which may be sometimes necessary; 
as, for instance, in order to account for 
lapse of time, but never to fix the jiersons 
making them with ailmissions contiiined 
in such letters, and I shall do all I can to 
discourage this, wliich I consider to be a 
very injurious practice."] 



CHAP. XI.] 



OF ADMISSIONS. 



221 



it must be permitted to m'cn to buy their peace without prejudice 
ta them, if the offer sliould not succeed ; and such offers are 
made to stop litigation, without regard to the question whether 
any thing is due or not. If, therefore, the defendant, being sued 
for <£100, should offer the plaintiff <£20, this is not admissible in 
evidence, for it is irrelevant to the issue ; it neither admits nor 
ascertains any debt ; and is no more than saying, he would give 
£20 to be rid of the action.^ But in order to exclude distinct 
admissions of facts, it must appear, either that they were expressly 
made without prejudice, or at least, that they were made under 
the faith of a pending treaty, and into which the party might have 
been led by the confidence of a compromise taking place. But 
if the admission be of a collateral or indifferent fact, such as the 
handwriting of the party, capable of easy proof by other means, 
and not connected with the merits of the cause, it is receivable, 
though made under a pending treaty .^ It is the condition, tacit 
or express, that no advantage shall be taken of the admission, it 
being made with a view to, and in furtherance of, an amicable 
adjustment, that operates to exclude it. But if it is an inde- 
pendent admission of a fact, merely because it is a fact, it will be 
received ; and even an offer of a sum, by way of compromise of 
a claim tacitly admitted, is receivable, unless accompanied with a 
caution that the offer is confidential.^ 



C 






1 Bull. N. P. 236 ; Gregory v. Howard, 
3 Esp. 113, Ld. Kenyon; Marsh v. Gold, 
2 rick. 290 ; Gerrisli v. Sweetser, 4 Pick. 
374, 377; Waym.in v. Hilliard, 7 Bing. 
101 ; Cuniming v. French, 2 Campb. 106, 
n. ; Glasstbrd on Evid. p. 336. See Moly- 
neaux v. Collier, 13 Georgia R. 406. But 
an offer of compromise is admissible, 
where it is only one step in the proof that 
a compromise has actually been made. 
CoUier r. Nokes, 2 C. & K. 1012. 

^ Waldridge v. Kenison, 1 Ks]), It:;, 
per Lord Kenyon. The American cdiiii j 
have gone farther, and held, that evidence 
of tlie admission of any independent fact 
is receivable, though made during a treaty 
of compr omise. See Mount v. Bogert, 
Anthon's Rep. 190, per Thompson, C. J. ; 
Murray v. Coster, 4 Cowen, 635; Fuller 
V. Hampton, 5 Conn. 416, 426 ; Sanborn 
V. Neilson, 4 New Hamp. R. 501, 508, 509 ; 
Delogny v. Rentoul, 1 Martin, 175 ; Mar- 
vin V. Richmond, 3 Den. 58; Cole v. Cole, 
34 Maine, 542; | Harrington v. Lincoln, 4 
Gray, 563, 567 ; Corinth v. Lincoln, 34 
Maine, 310.] Lord Kenyon afterwards 



relaxed his own rule, saying that in future 
he should receive evidence of all admis- 
sions, such as the party wotdd be obliged 
to make in answer to a bill in equity ; re- 
jecting none but such as are merely conr 
cessions for the sake of making peace and 
getting rid of a suit. Slack ?•. Buchanan, 
Peake's Cas. 5, 6; Tait on Evid. p. 293. 
A letter written by the adverse party, 
"without prejudice," is inadmissible. 
Healey v. Thatcher, 8 C. & P. 388. [* But 
the writer of such a letter is not precluded 
from using it in his own favor. Williams 
V. Thomas, 2 Drew. & Sm. 29.] 

3 Wallace v. Small, 1 M. & M. 446; 
Watts V. Lawson, Id. 447, n. ; Dickinson 
V. Dickinson, 9 Met. 471 ; Thompson v. 
Austen, 2 Dowl. & Ry. 358. In tliis case 
Bayle}^ J., remarked that the essence of 
an offer to compromise was, tliat the party 
making it was wilUng to submit to a sacri- 
fice, and to make a concession. Hartford 
Bridge Co. v. Granger, 4 Conn. 148 ; Ger- 
rish V. Sweetser, 4 Pick. 374, 377 ; Murray, 
V. Coster, 4 Cowen, 617, 635. Admissions 
made before an arbitrator are receivable 



19* 



222 LAW OF EVIDENCE. [PART II. 

§ 103. In regard to admissions made under circumstances of 
constraint^ a distinction is taken between civil and criminal cases ; 
aiRl it has been considered, that on the trial of civil actions, 
admissions are receivable in evidence, provided the compnlsion 
under which they are given is legal, and the party was not imposed 
upon, or under duress.^ Thus, in the trial of Collett v. Ld. Keith, 
for taking the plaintiff's ship, the testimony of the defendant, 
given as a witness in an action between other parties, in which 
he admitted the taking of the ship, was allowed to be proved 
against him ; though it appeared that, in giving his evidence, 
when he was proceeding to state his reasons for taking the ship, 
Lord Kenyon had stopped him by saying, it was unnecessary for 
him to vindicate his conduct.^ The rule extends also to answers 
voluntarily given to questions improperly asked, and to which the 
witness might successfully have olyected. So, the volnntary 
answers of a bankruj)t before the commissioners, are evidence in 
a subsequent action against the party himself, thongh he might 
have demurred to the questions, or the whole examination was 
irregular •,^ unless it was obtained by imposition or duress.^ 

§ 194. There is no difference, in regard to the admissibility of 
this sort of evidence, between direct admissions and those which 
are incidental, or made in some other connection, or involved in 
the admission of some other fact. Thus, where in an action 
against the acceptor of a bill, 4iis attorney gave notice to tha 
plaintiff to produce at the trial all papers, &c., which had been\. 
received by him relating to a certain bill of exchange (describing ^ 
it), which " was accepted by the said defendant ; " this was held\^ 

in a siiV)scqucnt trial of tlie cause, the to the jury; but that, if what was said 

reference havinji' proved inellbctiial. Slack bore in any way on the issue, he was 

r. Biicliannan, Peake's C.'as. 5. See also bound to receive it as evidence of tiie fact 

Grcicory I'. Howard, 8 Esp. 113. Collier itself. See also Milward c. Forbes, 4 Esp. 

V. Nokes, 2 C. & K. 1012. [Where a party 171. 

sued on a note offered to pay one half in " Stockfleth v. De Tastet, 4 Campb. 

c;ush, and one half by a new note with an 10; Smith v. Beadnell, 1 C.'anipb. 80. If 

iixlorser, and adniitte<l at the same time the commission ha,s been perverted to im- 

tliat he owed the note, it was held that projjcr purposes, the remedy is by an 

the admission mifjht be used against him. application to have the examination taken 

Snow ". P>atchel(ler, 8 Cush. 513.] from the files and cancelled. 4 Campb. 

1 [The rule excluding confessions made 11, jier \a\. Ellcnborough ; Milward v. 

under undue influence apiilies only to the Eorbes, 4 Esp. 171 ; 2 Stark. Evid. 22. 

confessions of a person on trial in a crimi- * h'obson v. Alexander, 1 Moore & P. 

nal case. Newhall v. Jenkins, 2 Gray, 448 ; Tucker v. Barrow, 7 B. & C. 023. 

6G2.] But a legal necessity to answer the ques- 

- Collett V. Ld. Keith, 4 Esp. 212, per tions, under peril of punishment for eon- 

Le Blanc, J. ; who remarked, that the tempt, it seems, is a valid objection to the 

manner in wliich the evidence had been admission of the answers in evidence, in a 

obtained might be matter of observation criminal prosecution. Ilex v. Britton, 1 



CHAP. XI.] OF ADMISSIONS. 223 

prima facie evidence, by admission that he accepted the bill.^ So, 
in an action by the assignees of a bankrupt, against an auctioneer, 
to recover the proceeds of sales of a bankrupt's goods, the defend- 
ant's advertisement of the sale, in which he described the goods 
as " the property of D., a bankrupt," was held a conclusive admis- 
sion of the fact of bankruptcy, and tliat»the defendant was acting 
under his assignees.^ So, also, an undertaking by an attorney, 
" to appear for T. and R., joint owners of the sloop ' Arundel,' " 
was held sufficient primd facie evidence of ownership.^ 

§ 195. Oljier admissions are implied from assumed character^ 
language^ and conduct, which, though heretofore adverted to,^ may 
deserve further consideration in this place. Where the existence 
of any domestic, social, or official relation is in issue, it is quite 
clear that any recognition, in fact, of that relation, is primd facie 
evidence against the person making such recognition, that the 
relation exists.^ This general rule is more frequently applied 
against a person who has thus recognized the character or office 
of another ; but it is conceived to embrace, in its principle, any 
representations or language in regard to himself. Thus, where 
one has assumed to act in an official character, this is an admis- 
sion of his appointment or title to the office, so far as to render 
him liable, even criminally, for misconduct or neglect in such 
office.^ So, where one has recognized the official character of 
another, by treating with him in such character, or otherwise, this 
is at least prima facie evidence of his title, against the party thus 
recognizing it.'^ So, the allegations in the declaration or plead- 

M. & Rob. 297. The case of Rex. v. Mer- officer, for returning false musters ; Rex 

ceron, 2 Stark. R. 366, which seems to the v. Kerne, 2 St. Tr. 957, 960; Rex v. 

contrary, is questioned and explained by Bronimick, Id. 961, 962; Rex v. Atkins, 

Lord Tenterden, in Rex v. Gilham, 1 Id. 964, which were indictments for high 

Mood. Cr. Gas. 203. See infra, §§ 225, treason, being popish priests, and remain- 

451 ; Regina v. Garbett, 1 Denis. C. C. ing forty days within the kingdom ; Rex 

236. V. Borrett, 6 C. & P. 124, an indictment 

1 Holt V. Squire, Ry. & M. 282. against a letter-carrier, for embezzlement ; 

2 Maltby v. Ghristie, 1 Esp. 342, as ex- Trowbridge v. Baker, 1 Cowen, 251, 
pounded by Lord EUenborough, in Ran- against a toll-gatherer, for penalties ; Lis- 
kin V. Horner, 16 East, 193. ter v. Priestley, Wightw. 67, against a col- 

3 Marshall v. Cliff, 4 Campb. 133, per lector, for penalties. See also Cross v. 
Ld. EUenborough. Kaye, 6 T. R. 663 ; Lipscombe v. Holmes, 

4 Supra, § 27. 2 Campb. 441 ; Radford v. Mcintosh, 3 T. 

5 Dickinson v. Coward, 1 B. & A. 677, R. 632. 

679, per Ld. EUenborough ; Radford, q. t. ^ Peacock v. Harris, 10 East, 104, by a 

V. Mcintosh, 3 T. R. 632. renter of turnpike tolls, for arrearages of 

6 Bevan v. Williams, 3 T. R. 635, per tolls due ; Radford v. Mcintosh, 3 T. R. 
Ld. Mansfield, in an action against a cler- 632, by a farmer-general of the post-horse 
gyman, for non-residence ; Rex v. Gard- duties, against a letter of horses, for ear- 
ner, 2 Campb. 513, against a military tain statute penalties ; Pritchard v. Walker, 



224 LAW OF EVIDENCE. [PART II. 

ings in a suit at law have been held receivable in evidence against 
the party, in a subsequent suit between him and a stranger, as 
Ills soleuni admission of the trulh of the facts recited, or of his 
understanding of the meaning of an instrument ; though the judg- 
ment could not be made available as an estoppel, unless between 
the same parties, or others in })rivity with them.^ 

§ 106. Admissions implied from the conduct of the party are 
governed by the same ])rinciples. Thus, the suppression of docu- 
ments is an admission that their contents are deemed unfavorable 
to the party suppressing them.^ The entry of a cliarj^e to a par- 
ticular person, in a tradesman's book, or the making-out of a bill 
of parcels in liis name, is an admission that they were furnished 
on his credit.^ The omission of a claim by an insolvent, in a 
schedule of the debts due to him, is an admission that it is not 
due.^ Payment of money is an admission against the payer, that 
the receiver is the proper person to receive it ; but not against the 
receiver, that the payer was the person who was bound to pay it ; 
for tlie party receiving payment of a just demand may well assume, 
without in(iuiry, that the person tendering the money was the 
person legally bound to pay it.^ Acting as a bankrupt, under a 
commission of bankruptcy, is an admission that it was duly issued.'' 
Asking time for the payment of a note or bill is an admission of 

3 C. & r. 212, by tlie clerk of flie trustees Ad. & El. 695, 703, per Ld. Denman, C. 
of a turnpike road, aj;aii]st one of the J. See furtlier, DivoU v. Leadbetter, 4 
trustees ; Dickinson v. Coward, 1 B. & A. Pick. 220; Crofton v. Poole, 1 B. & Ad. 
077, by the assij^nee of a bankrupt, against 568; Kex v. Barnes, 1 Stark. R. 213; 
a delttor, who had made tlie assignee a Phil. & Am. on Evid. o6U, 370, 371 ; 1 
])artial payment. In Berryman v. Wise, Phil. Evid. 351, 352. 

4 T. \i. oijtj, wiiich was an action by an i Tiley v. Cowling, 1 Ld. Raym. 744; 
attorney for slander, in charging him witii Bull. N. P. 213, s. c. See sn/ira, §§ 171, 
swindling, and tin-eatening to have him Hl4; infra, §§ 205, 210, 527<'i, 555; Rob- 
struck off tlie roll of attorneys, the court inson v. Swett, 3 Gieenl. 316 ; Wells v. 
belli that this threat imported an admis- Compton, 3 Rob. Louis. R. 171 ; Parsoiis 
sion that the plaintiff was an attorney. ?-. Copoland, 33 Maine, 370; | Williams r. 
Cummin v. Smith, 2 Serg. & R. 440. But Cheney, 3 Gray, 215; Jiidd r. (;il)l)s, lb. 
see Smith v. Taylor, 1 New R. 11)6, in 53',). See Church v. Shelton, 2 Curtis, C. 
which the learned judges were equally C. 271; State v. Littlefielil, 3 R. I. 121.] 
divided upon a point somewhat similar, - James v. Biou, 2 Siiu. & Stu. 600, 
in the ease of a physician ; but in the for- 606 ; Owen v. Flack, Id. 606. 

mer case, the roll of attorneys was ex- ^ Storr et ul. v. Scott, 6 C. & P. 241 ; 

])ressly mentioned, while in the latter, the Thompson v. Davenport, B. & C. 78, 86, 

j)laintiff was merely spoken of as " Doctor 1)1), 01. 

S.," and the defendant had been emi)loyed ■* Nicliolls v. Downes, 1 INI. & Rob. 13 ; 

as his apothecary, ll, however, the slan- Hart r. Newman, 3 Campb. 13. See also 

der relates to the want of qualification, it Tilghman v. Fislier, 9 Watts, 441. 

was hell! by Mansfield, C. J., that the '' James v. Biou, 2 Sim. & Stu. GOO, 

plaintiff must prove it; but not where it 606; Chiipman v. Beard, 3 Anstr 942. 

was confined to mere misconduct. 1 .New " Like v. Howe, Esp. 20; Clark y. 

11.207. See to this ]>i)int, Moises ?;. Thorn- Clark, lb. 61. 

ton, 8 T. R. 303; Wilson v. Carnegie, 1 



CHAP. XI.] OF ADMISSIONS. 225 

the holder's title, and of the signature of the party requesting the 
favor ; and the indorsement or acceptance of a note or bill is an 
admission of the truth of all the facts which arc recited in it.^ 

§ 197. Admissions may also be implied from the acquiescence of 
the party. But acquiescence, to have the effect of an admission, 
must exhibit some act of the mind, and amount to voluntary 
demeanor or conduct of the party .^ And whether it is accjuies- 
cence in the conduct or in the language of others, it must plainly 
appear that such conduct was fully known, or the language fully 
understood by the party, before any inference can be drawn from 
his passiveness or silence. The circumstances, too, must be not 
only such as afforded him an opportunity to act or to speak, but 
such also as would properly and naturally call for some action or 
reply, from men similarly situated.^ Thus, where a landlord 
quietly suffers a tenant to expend money in making alterations 
and improvements on the premises, it is evidence of his consent to 
the alterations.* If the tenant personally receives notice to quit 
at a particular day, without objection, it is an admission that his 
tenancy expires on that day.^ Thus, also, among merchants, it is 
regarded as the allowance of an account rendered, if it is not 
objected to, without unnecessary delay.^ A trader being inquired 
for and hearing himself denied, may thereby commit an act of 



1 Helmsley v. Loader, 2 Campb. 450 ; he may read his immediate replies. Roe 
Critchlow v. Parry, Id. 182; Wilkinson v. v. Day, 7 C. & P. 705. So, it seems, he 
Ludwidge, 1 Stra. 648 ; Robinson v. Yar- may prove a previous conversation with 
row, 7 Taunt. 455 ; Taylor v. Croker, 4 the party, to show the motive and inten- 
Esp. 187; Bass ;;. Clive, 4 M. & S. 13. tion in writing them. Reay ;.'. Richardson, 
See further, Rayley on Bills, by Phillips 2 C. M. & R. 422 ; [Commonwealth v. 
& Sewall, p. 4ya-506 ; Phil. & Am. on Harvey, 1 Gray, 487, 48'J ; Boston & W. 
Evid. 383, n. (2); 1 Phil. Evid. 364, n. R. R. Corp. v. Dana, lb. 83, 104; Com- 
(1), and cases tliere cited. monwealth y. Kenney, 12 Met. 235; Brain- 

2 Allen V. McKeen, 1 Sumn. 314; Car- ard v. Buck, 25 Vt. 573; Corser v. Paul, 
ter V. Bennett, 4 Flor. Rep. 340. 41 N. H. 24.J 

3 To affect a party with the statements ■* Doe v. Allen, 8 Taunt. 78, 80 ; Doe 
of others, on the ground of his implied v. Pye, 1 Esp. 366; Neale v. I'arkin, 1 
admission of their truth by silent acqui- Esp. 229. See also Stanley ;;. White, 14 
escence, it is not enough that they weje East, 332. 

made in his presence ; for if they were ^ Doe v. Biggs, 2 Taunt. 109 ; Thomas 

given in evidence in a judicial proceeding, v. Thomas, 2 Campb 647 ; Doe v. Poster, 

he is not at liberty to interpose when and 13 East, 405 ; Oakapple v. Copous, 4 T. 

how lie pleases, though a party ; and there- R. 361 ; Doe v. Woombwell, 2 Campb. 

fore is not concluded. IMelen v. Andrews, 559. 

1 M. & M. 836. See also Allen v. RIc- " Sherman v. Sherman, 2 Verm. 276. 
Keen, 1 Sumn. 217, 313, 814; Jones v. Hutchins, Ld. Com., mentioned "a second 
Morrell, 1 Car. & Ivir. 266 ; Neile v. Jakle, or third post," as tlie ultimate period of 

2 Car. & Kir. 709; Peele v. Merch. Ins. objection. But Lord Hardwicke said, that 
Co. 3 Mason, R. 81; Hudson v. Harrison, if the person to whom it was sent kept 

3 B. & B. 97 ; infra, §§ 201, 215, 287. If the account " for any length of time, with- 
letters are offered against a party, it seems out making any objection," it became a 



22G LAW OF EVIDENCE. [PART II. 

bankruptcy.^ And generally, where one knowingly avails himself 
of another's acts, clone for his benefit, this will be held an admis- 
sion of his obligation to pay a reasonable compensation .^ 

[*§ 197a. The former rule of evidence, that one's silence 
shall be construed as a virtual assent to all that is said in his 
presence, is susceptible of great abuse, and calls for a course of 
conduct, which prudent and quiet men do not generally adopt. 
If that rule be sound to the full extent, as laid down in some of 
the early cases, it would be in the i)Ower of any evil-disposed per- 
son to always ruin his adversary's case, by drawing him into a 
compulsory altercation in the presence of chosen listeners, who 
would be sure to misrepresent what he said. Nothing could be 
more unjust or unreasonable. Hence, in more recent cases, the 
rule, in some states, has undergone very important qualifications. 
The mere silence of one, when facts are asserted in his presence, 
is no ground of presuming his acquiescence, unless the conversa- 
tion were addressed to him, under such circumstances as to call for 
a reply. The person must be in a position to require the infor- 
mation, and he must ask it in good faith, and in a manner fairly 
entitling him to expect it, in order to justify any inference from 
the mere silence of the party addressed. If the occasion, or the 
nature of this demand, or the manner of making it, will reason- 
ably justify silence, in a discreet and prudent man, no unfavorable 
inference therefrom should, on that account, be made against the 
party. And wdicthcr the silence be any ground of presumption 
against the party will always be a question of law, unless there is 
confhct in the proof of the attending circumstances.^ The same 

stated account. "Willis v. Jernegan, 2 Atk. ^ Key v. Sliaw, 8 Bing. 320. 

252. See also Froelaiul v. Heron, 7 ^ Morris v. Burdett, 1 Campb. 218, 

Cranch, 147, 151 ; Murray v. Tolland, 3 where a candidate made use of the liust- 

Joluis. Ch. 575 ; Tickel v. Short, 2 Ves. ings erected for an election ; Abbott v. 

28U. Daily entries in a book, constantly Inhabitants of llernion, 7 Greenl. 118, 

open to tile party's inspection, are admis- where a schoolliouse was used by the 

sions against him of the matters therein sc^hool district ; Ilayden v. Inhabitants of 

stated- Alderson v. Clay, 1 Stark. R. ]\Iadison, Id. 7G, a case of partial payment 

405; Wiltzie v. Adamson, 1 Phil. Evid. for making a road. 

357. Sl'C further, Coe v. Ilutton, 1 Serg. " [* Mattocks v. Lyman, 16 Vt. R. 113 ; 
& R. 39« ; McBride v- Watts, 1 McCord, Vail v. Strong, 10 Id. 457 ; Gale *'. Liu- 
384; Corps v. Robinson, 2 W:ish. C. C. coin, 11 Vt. 152. Post, ^ 199. Where a 
11. 388. So, the members of a company person is inquired of as to a matter which 
are chargeable with knowledge of the en- may affect liis pecuniary interests, he has 
tries in their books, made by their agent the right to know whether the party ma- 
in the course of his business, and with king the inquiry is entitled to make it as 
their true meaning, as understood by the affecting any interest which he represents, 
auent. Allen v. Coit, 6 Hill (N. Y.), R. and for the protection of which he requires 
218. the information sought. And miless he is 



CHAP. XI.] OF ADMISSIONS. 227 

rule obtains as to letters addressed to the party .^ But if the party 
consent to give any explanation it becomes evidence, although 
drawn from him by a false suggestion.^ And even a plea of " guilty," 
in a criminal proceeding against the party for assault and battery, 
will be evidence against him in a civil action for the same.-^ But 
as a general rule, admissions in the pleadings in one suit will 
n"bn3e~evrdence against the party inanother suit^ unless signed by 
him pe]\sonally, in which case there is no reason why they should 
not be so regarded, to the same extent as any other admissions.* 
Admissions in the same action for one purpose may be used for 
another, or where in assumpsit against two, upon a joint promise, 
both pleaded non-assumpsit and one infancy. The plaintiff ad- 
mitted the infancy of one defendant upon the record and discon- 
tinued as to that defendant. Held, that he could not recover 
against the other, since his admission showed conclusively that 
there was no joint promise.^ The American practice, however, is 
different upon this point. It is here held that the plaintiff may 
discontinue as to the infant, and proceed against the other joint 
contractors to judgment.^] 

§ 198. The possession of documents, also, or the fact of constant 
access to them, sometimes affords ground for affecting parties with 
an implied admission of the statements contained in them. Thus, 
the rules of a club, contained in a book kept by the proper officer, 
and accessible to the members ; ^ charges against a club, entered 
by the servants of the house, in a book kept for that purpose, open 
in the club-room ; ^ the possession of letters,^ and the like ; are 
circumstances from which admissions by acquiescence may be 
inferred. Upon the same ground, the shipping list at Lloyd's, 



fairly informed upon these points, he is not ^ Alderson i-. Clay, 1 Stark. R. 405; 

bound to give information, and will not be Wiltzie v. Adamson, 1 Phil. Evid. 357. 
allbctcd in his pecuniary interests in con- ^ Hewitt );. Piggott, 5 C. & P. Tlj; Eex 

sequence of refusal, llackett v. Callender, v. Watson, 2 Stark. R. 140 ; Home Tooke's 

32 Vt. R. 97.] case, 25 St. Tr. 120. But the possession 

1 [* Commonwealth v. Jeffreys, 7 Allen, of unanswered letters seems not to be, of 
548; Same v. Eastman, 1 Cush. 180. itself, evidence of acquiescence in their 

2 Higgins V. Dellinger, 22 Mis. 307. contents ; and, therefore, a notice to pro- 

3 Birchard v. Booth, 4 Wis. 67. duce such letters will not entitle the ad- 
* Mariauski y. Cairns, 1 Macq. Ho. verse party to give evidence of their entire 

Lds. Cas. 212. contents, but only of so much as on other 

Boyle V. Webster, 17 Q. B. 950. grounds would be admissible. Fau-lee v. 

6 Hartness v. Thompson, 5 Jolms. 160 ; Denton, 3 C. & P. 103. And a letter 

Tappan v. Abbott, cited Pick. 502 ; Wood- found on the prisoner was held to be no 

ward V. NewhaU, Id. 500 ; Allen v. Butler, evidence against him of the facts stated in 

9 Vt. R. 122.] it, in Rex v. Pluraer, Rus. & Ry. C. C. 

T Raggett V. Musgrave, 2 C. & P. 556. 264 ; [People v. Green, 1 Parker, C. R. 11.] 



228 L^W OP EVIDENCE. [PART II. 

Stating the time of a vessel's sailing, is held to be primd facie evi- 
dence against an underwriter, as to what it contains.^ 

§ 199. But, in regard to admissions inferred from acquiescence in 
the verbal statements of others, the maxim, Qui tacet consentire vide- 
Uir, is to be applied with careful discrimination. " Nothing," it is 
said, " can be more dangerous than this kind of evidence. It 
should always be received with caution ; and never ought to be 
received at all, unless the evidence is of direct declarations of that 
kind which naturally calls for contradiction ; some assertion made 
to the party with respect to his right, which, by his silence, he 
acquiesces in."^ A distinction has accordingly been taken be- 
tween declarations made by a party interested and a stranger; 
and it has been held, that, while what one party declares to the 
other, without contradiction, is admissible evidence, what is said 
by a tliird person may not be so. It may be impertinent, and best 
rebuked by silence ; but if it receives a reply, the reply is evi- 
dence. Therefore, what the magistrate, before whom the assault 
and battery was investigated, said to the parties, 'IVas held inad- 
missible, in a subsequent civil action for the same assault.^ If the 
declarations are those of third persons, the circumstances must be 
such as called on the party to interfere, or at least such as would 
not render it impertinent in him to do so. Therefore, where, in a 
real action upon a view of the premises by a jury, one of the chain- 
bearers was the owner of a neighboring close, respecting the 
bounds of which the litigating parties had much altercation, their 
declarations in his presence were held not to be admissible against 
him, in a subsequent action respecting his own close.^ But the 
silence of the party, even where the declarations are addressed to 
himself, is worth very little as evidence, where he has no means 
of knowing the truth or falsehood of the statement.^ 

1 Macintosh v. Marshall, 11 M. & W. dence against B. Rex j;. Appleby, 3 Stark. 

216_ R. 33. Nor is a deposition," given in tlie 

-' 14 Rerg. & R. 393, per Duncan, C. J. ; person's presence, in a cause to wliiclf lie 

2 C. & I'. l'J3, iier Best, C. J. And see was not a party, admissible against liim. 

McClenkan /;. McMillan, 6 Barr, 3«J0, Melen r. Andrews, 1 M. & M. o;itJ. _^ Sec 

wbere tiiis maxim is expounded and aj)- also Fairlie i>. Denton, 3 C. & V. ll)3, per 

plied. See also Commonwealth o. Call, Lord Tenterden ; Tait on Evidence, p. 

2[ Pick. 515; [Commonwealth r. Kenney, 2U3. So in the Roman law, " Confessio 

12 Met. 235, 237 ; supra, § 197.] facta sou pnBsum[)ta ex taciturnitate, in 

'■^ Child v. (Jrace, 2 C. & B. 193. ali(iuo judicio, non nocebit in alio." Mas- 

* Moore '-. Snul'li, 14 Serg. & R. 388. cardus De Probat. vol. 1, concl. 348, n. 31 

Where A & B were charged with a joint [Larry v. Sherburne, 2 Allen, 35; Hil- 

felony, what A stated before the exami- dreth v. Martin, 3 Allen, 371 ; Fenno v. 

ning magistrate, respecdng B's participa- Weston, 31 Vt. 345.] 
tiou in the cruue, is not admissible evi- » ilayslep v. Gymer, 1 Ad. & El. 162, 



CHAP. XI.] OF ADMISSIONS. 229 

§ 200. With respect to all verbal admissions, it may be observed 
that they ought to be received loitJi great caution. The evidence, 
consisting as it does in the mere repetition of oral statements, is 
subject to much imperfection and mistake ; the party himself 
either being misinformed, or not liaving clearly expressed his own 
meaning, or the witness having misunderstood him. It frequently 
happens, also, that the witness, by unintentionally altering a few 
of the expressions really used, gives an eftect to the statement 
completely at variance with what the party actually did say.^ But 
where the admission is deliberately made and precisely identified, 
tlie evidence it affords is often of the most satisfactory nature.^ 
[* In a somewhat extended experience of jury trials, we have been 
compelled to the conclusion that the most unreliable of all evi- 
dence is that of the oral admissions of the party, and especially 
where they purport to have been made during the pendency of the 
action, or after the parties were in a state of controversy. It is 
not uncommon for different witnesses of the same conversation 
to give precisely opposite accounts of it ; and in some instances 
it will appear, that the witness deposes to the statements of one 
party as coming from the other, and it is not very uncommon to 
find witnesses of the best intentions repeating the declarations of 
the party in his own favor as the fullest admissions of the utter 
falsity of his claim. When we reflect upon the inaccuracy of 
many witnesess, in their original comprehension of a conversation ; 
their extreme liability to mingle subsequent facts and occurrences 
with the original transactions ; and the impossibility of recollecting 
the precise terms used by the party or of translating them by exact 

165, per Parke, J. See further on the v. Malin, 1 Wend. 625, 652; Lench v. 

subject of tacit admissions, The State v. Lench, 10 Ves. 517, 518, cited witli ap- 

Eawls, 2 Nott & McCord, 301 ; Batturs probation in 6 Johns. Cli. 412, and in 

V. Sellers, 5 Harr. & J. 117, 119. Smith v. Burnham, 3 Sunin. 438 ; Storid 

1 Earle v. Picken, 5 C. & P. 542, note, ?;. 'Ramsey, i Monroe, 236, 239; Myers v. 

per Parke, J ; Rex v. Simons, 6 C. & P. Baker, Hardin, 544, 549; Perry v. Gej- 

510, per Alderson, B. ; Williams v. Wil- beau, 5 Martin, n. s. 18, 19. Law v. Mer- 

liams, 1 Hagg. Consist. R. 304, per Sir rils, 6 Wend. 268, 277. It is aNo well 

William Scott; Hope v. Evans, 1 Sm. & settled that verbal admissions, li:i>iil\ and 

M. Ch. R. 195. Alciatus expresses the inadvertently made without investigation, 

sense of tiie civilians to the same effect, are not binding. Salein Bank r. Glouces- 

wliere, after speaking of the weight of ju- ter Bank, 17 Mass. 27 ; Barber v. Gingell, 

dicial admissions, " propter majorem certi- 3 Esp. 60. See also Smith v. Burnham, 3 

tudiuem, quam in se habet," he adds — Sumn. 435, 438, 439 ; Cleveland r. Burton, 

" Qua; ratio non habet locum, quando ista 11 Vermont, R. 138; Stephens v. Vro- 

confessio probaretur per testes; imo est man, 18 Barb. 250; Printup v. Mitchell, 

tninus certa cceteris probutionibus," &c. Al- 17 Geo. 558. 

ciat. de Praesump. Pars. Secund. Col. 682, - Rigg v. Curgenven, 2 Wils. 305, 399 ; 

n. 6. See supra, §§ 96, 97; 2 Poth. on Glassford on Evid. 326; Commonwealth 

Ubl. by Evans, App. No. 16, § 13 ; Malin v. Knapp, 9 Pick. 507, 508, per Putnam, J. 
VOL. I. 20 



230 LAW OF EVIDENCE. [PART II. 

equivalents, we must conclude there is no substantial reliance upon 
this class of testimony. The fact, too, that in the final trial of 
open questions of fact, both sides are largely supported by evi- 
dence of this character, in the majority of instances, must lead all 
cautious triers of fact greatly to distrust its reliability.] 

§ 201. We are next to consider the effect of admissions, whon 
proved. And here it is first to be observed, that the ivliole admis- 
non is to-be taken together ; for though some part of it may contain 
matter favorable to the party, and the object is only to ascertain 
that which he has conceded against himself, for it is to this only 
that the reason for admitting his own declarations applies, namely, 
the great probability that they are true ; yet, unless the whole is 
received and considered, the true meaning and import of the part, 
which is good evidence against him, cannot be ascertained. But 
though the whole of what he said at the same time, and relating 
to the same subject, must be given in evidence, yet it does not 
follow that all the parts of the statement are to be regarded as 
equally worthy of credit ; but it is for the jury to consider, under 
all the circumstances, how much of the whole statement they deem 
worthy of belief, including as well the facts asserted by the party 
in his own favor, as those making against him.^ 

1 Smith V. Blandy, Ry. & M. 257, per wholly distinct from tliose read by the 
Best, J.; Cray f. Halls, /i. c//. per Abbott, adversary, althoiifrli found in the same 
C. J. ; Berinon i'. Woodbridge, 2 Doug, answer and pleadings, an<l tliC rule is 
788 ; Rex c. Clewes, 4 C. & P. 221, per practically the same at law, as wiien the 
Littledale, J. ; McClenkan v. McMillan, 6 adversary reads one entry in a book, it will 
Barr, 300 ; Mattocks r. Lyman, 3 Washb. not justify reading the entire book, unless 
98; Wilson v. Calvert, 8 Ala. 757; Yar- in some way connected with the entry 
borough V. Moss, 'J Ala. 382. See supra, read. Abbott, Ch. J., in Catt. v. Howard, 
§ 152; Dorian v. Douglass, Barb. s. c. 3 Stark. N. P. C. 3. Nor can the party 
li. 451. A similar rule prevails in chan- read distinct and disconnected paragraphs 
eery. Gresley on Evid. 13. [* The party, in a newspaper, because one has been 
by reading from an answer in the case read by his adversary. Darby y. ( )useley, 
to prove the admission of having endorsed 1 H. & N. 1 ; or a series of copies of let- 
a promissory note, renders all that portion ters inserted in a copy book, because 
of the answer evidence, although embra- one has been read. Sturge v. Hucliaiian, 
cing obligations of defence. Giidersleeve 2 M. & Hob. 90. J See also the Queen's 
t;. Mahoney, 5 Duer, 383. And it has been case, 2 Brod. & Bing. 298, per Abbott, 
said, that the party against whom an C. J. ; Handle v. Blackburn, 5 Taunt, 
itnswer in chancery is produced, ma}' 245 ; Thompson v. Austen, 2 D. & II. 
claim to have the whole bill as well as 358; Fletcher v. Froggart, 3 C. & P. 
the answer read as part of his adversa- 509 ; Yates v. Camsew, 3 C. & P. 99, per 
ry's case, upon the same ground, that, Lord Tenterden ; Cooper v. Smith, 15 
where one proves answers in conversation East, 103, 107; Whitwell v. Wyer, 11 
against a party, lie may insist upon having Mass. 0, 10 ; Garey v. Nicholson, 24 Wend, 
the questions to which he made the replies 350; Kelsey v. Bush, 2 Hill, K. 440; in- 
put in evidence. Penned v. Meyer, 2 M. fra, §§ 215, 218, and cases there cited. 
& Rob. 98, by Tindal, Ch. J.; s. c. 8, C. & Where letters in correspondence between 
P. 470. But the rule in equity does not the plaintiff and defendant were offered in 
extend to putting in evidence matters evideuce by the former, it was held that 



CHAP. XI.] OF ADMISSIONS. 231 

§ 202. Where the admission, whether oral or in writing, con- 
tains matters stated as mere hearsay, it lias been made a question 
whether such matters of hearsay are to be received in evidence. 
Mr. Justice Chambre, in the case of an answer in chancery, read 
against the party in a subsequent suit at law, thought that portion 
of it not admissible ; " for," he added, " it appears to me, that 
where one party reads a part of the answer of the other party in 
evidence, he makes the whole admissible only so far as* to waive 
any objection to the competency of the testimony of the party 
making the answer, and that he does not thereby admit as evidence 
all the facts, which may happen to have been stated by way of 
hearsay only, in the course of the answer to a bill filed for a 
discovery." ^ But where the answer is offered as the admission of 
the party against whom it is read, it seems reasonable that the 
whole admission should be read to the jury, for the purpose of 
showing under what impressions that admission was made, though 
some parts of it be only stated from hearsay and belief. And what 
may or may not be read, as the context of the admission, depends 
not upon the grammatical structure, but upon the sense and 
connection in fact. But. whether the party, against whom the 
answer is read, is entitled to have such parts of it as are not 
expressly sworn to left to the jury as evidence, however slight, of 
any fact, does not yet appear to have been expressly decided.^ 

§ 203. It is further to be observed on this head, that the parol 
admission of a party, made en pais, is competent evidence only of 
those facts which may lawfully be established by parol evidence ; it 
cannot be received either to contradict documentary proof, or to 
supply the place of existing evidence by matter of record. Thus, 
a written receipt of money from one as the agent of a corporation, 
or even an express admission of indebtment to the corporation 
itself, is not competent proof of the legal authority and capacity of 
the corporation to act as such.^ Nor is a pai-ol admission of having 

the latter might read his answer to the practice, that where the party admits let- 
plaintiff's last letter, dated the day pre- ters to he in his handwriting, in order to 
vioiis. Roe V. Day, 7 C. & P. 705. And save the expense of proof at the trial, 
where one party produces the letter of this will preclude all objection to the au- 
another, purporting to be in reply to a. thenticity of any portion of such letters, 
previous letter from himself, he is bound although obviously in a different hand- 
to call for and put in the letter to which it writing. Hawk v. Freund, 1 F. & F. 294. 
was an answer, as part of his own evi- ^ Roe v. Ferras, 2 Bos. & Pul. 548. 
dence. Watson v. Moore, 1 C. & Kir. - 2 Bos. & Pul. 548, note ; Gresley on 
626 ; [Reynolds v. Manning, 15 Md. 510.] Evid. 13. 
[*It seems to be settled, in the English ^ Welland Canal Co. v. Hathaway, 8 



232 „ LAW OF EVIDENCE. [PART II. 

been discharged imder an insolvent act sufficient proof of that 
fact, without the production of the record.^ The reasons on which 
this rule is founded having been ah-cady stated, it is unnecessary 
to consider them further in this place.^ The rule, however, does 
not go to the utter exclusion of parol admissions of this nature, but 
only to their effect ; for in general, as was observed by Mr. Justice 
Parke,^ what a party says is evidence against himself, whether it 
relate to the contents of a written instrument, or'any thing else. 
Therefore, in replevin of goods distrained, the admissions of the 
plaintiff have been received, to show the terms upon wliicli he held 
the promises, though he held under an agreement in writing, which 
was not produced.* Nor does the rule affect the admissibility of 
such evidence as seconddtry proof, after showing the loss of the 
instrument in question. 

§ 204. With regard, then, to the conclusiveness of admissions, it 
is first to be considered, that the genius and policy of the law 
favor the investigation of truth by all expedient and convenient 
methods ; and that the doctrine of estoppels, by which further 
investigation is precluded, being an exception to the general rule, 
founded on convenience, and for the prevention of fraud, is not to 
be extended beyond the reasons on which it is founded.^ It is also 
to be observed, that estoppels bind only parties and privies, and 
not strangers. Hence it follows, that though a stranger may often 
show matters in evidence, which parties or privies might have 
specially pleaded by way of estoppel, yet, in his case, it is only 
matter of evidence, to l)e considered by the jury.^ It is, however, 

Wend. 480 ; National Bank of St. Charles the judgment of the court, in Heane v. ■. 
V. Do Bernale-s, 1 C- & T. 56'J; Jenner v. Roirers, t) B. & C. 577, 586. It was an 
Joliffe, (5 Jolins. 9. action of trover, brought by a person, 
^ Scott V. Clare, 3 Campb. 23G ; Sum- against wliom a commission of bankruptcy 
mcrsett v. Adamson, 1 Bing. 73, per had issued, against his assignees, to re- 
Parke, J. cover the value of goods, whicli, as assigii- 
^ See .iitpra, §§ 96, 97. ecs, they had sold ; and it appeared tliat 
2 In Earle u. Picken, 5 C. & P. 542 ; he had assisted the assignees, by giving : 
Newhall v. Holt, Id. 662; Slatterie v. directions as to the sale of the goods ; and j 
Pooley, 6 M. & W. 664 ; Pritcliard v. Bag- that, after the issuing of the commission, 
shawe, 11 Common Bench R. 459. [Oral he gave notice to the lessors of a farm 
statements and admissions are admissible wliicii he held, that he had become bank- 
in evidence against the party making rupt, and was willing to give up the lease, 
them, though they involve what must which the lessors thereupon arcei)ted, and ■ 
necessarily be contained in some writing, took ])ossession of the premises. And the i 
deed, or record. Smith v. Palmer, 6 question was, whether he was precluded, • 
Cash. 513, 520.) by this surrender, from dis])uting the 
* Howard i\ Smith, 3 Scott, N. R. 574. commission in the present suit. On tliis 
^ See sii/>m, § 22-26. point the language of the learned Judge 
*" This subject was very clearly illus- was as follows : " There is no doul)t but 
trated by Mr. Justice Bayley, in delivering that the express admissions of a i)arty to 



CHAP. XI.] 



OF ADMISSIONS. 



233 



in such cases, material to consider, whether the admission is made 
independently, and because it is true, or is merely conventional, 
entered into between the parties from other causes than a con- 
viction of its truth, and only as a convenient assumption for the 
particular purpose in hand. For in the latter case, it may be 
doubtful whether a stranger can give it in evidence at all.^ Ycr - 
bal admissions, as such, do not seem capable, in general, of being 
pleaded as estoppels even between parties or privies ; but if, being 



, the suit, or admissions implied from his 
I conduct, are evidence, and strons? evi- 
I dence, against him ; but we tliink that he 
I is at Hberty to prove that such admissions 
were mistaken, or wore untrue, and is not 
estopped or conchided by them, unless 
another person has been induced by them 
to alter his condition ; in such a case, the 
party is estopped from disputing their 
truth with respect to that person (and 
those claiming under him), and that trans- 
action ; but as to third persons, lie is not 
bound, it is a well-estabhshed rule of 
law, that estoppels bind parties and priv- 
ies, not strangers. (Co. Lit. .3.52a; Com. 
Dig. Estoppel, C.) The otfer of surrender 
made in this case was to a stranger to this 
suit ; and though the bankrupt may have 
been bound by his representation that he 
was a bankrupt, and his acting as sucli, as 
between him and tliat stranger, to whom 
that representation was made, and who 
acted upon it, lie is not bound as between 
him and the defendant, who did not act 
' on the faith of that representation at all. 
The bankrupt would, probably, not have 
been permitted, as against his landlords, 
— whom lie had induced to accept the 
lease, without a formal surrender in writ- 
: ing, and to take possession, upon the sup- 
position tliat he was a bankrupt, and 
entitlecf under 6 Geo. IV., c. 16, § 75, to 
give it up, — to say afterwards that he 
was not a bankrupt, and bring an action 
of trover for the lease, or an ejectment for 
the estate. To that extent lie would have 
been bound, probably no further, and cer- 
tainly not as to any other persons tlian 
those landlords. This appears to us to 
be the rule of law, and we are of opinion 
that the bankrupt was not by law, by his 
notice and oiler to surrender, estopped ; 
and indeed it would be a great hardship if 
he were precluded b\' such an act. _ It J§ 
admitted that his surrender to his conimis-. 
sioners is no estopjicl, lnH'ause it would be 
very perilous to a bankrupt to dispute it, 
and try its validity by refusing to do so. 
(See Flower v. Herbert, 2 Ves. 326.) A 
similar observation, though not to the 



same extent, applies to this act; for 
whilst his commission disables him from 
carrying on his business, and deprives 
him, for the present, of the means of oc- 
cupying liis form with advantage, it would 
be a great loss to the bankrupt to continue 
to do so ; paying a rent and remaining 
liable to the covenants of the lease, and 
deriving no adequate benefit ; and it can- 
not be expected that he should incur such 
a loss, in order to be enabled to dispute 
his commission witli effect. It is reason- 
able tliat he should do the best for him- 
self, in the unfortunate situation in which 
he is placed. It is not necessary to refer 
particularly to the cases in which a bank- 
rupt has been precluded from disputing 
his commission, and which were cited in 
argument. Tlie earlier cases fall within 
the principle above laid down. In Clark 
V. Clark, 6 Esp. 61, the bankrupt was not 
permitted to call that sale a conversion, 
which lie himself had procured and sanc- 
tioned ; in Like v. Howe, 6 Esp. 20, he was 
precluded from contesting the title of per- 
sons to be assignees, whom he by his con- 
duct had procured to become so ; and the 
last case on this subject, Watson v. Wace, 

5 B. & C. 153, is distinguishable from the 
present, because Wace, one of the defend- 
ants, was the person from whose suit the 
plaintiff had been discharged, and there- 
fore, perhaps, he might be estopped with 
respect to that person by his conduct 
towards him. See also Welland Canal 
Co. r. Hathaway, 8 Wend. 483 ; Jennings 
V. Whittaker, 4 Monroe, 50 ; Grant v. 
Jackson, Teake's Cas. 203 ; Ashmore v. 
Hardy, 7 C. & P. 501 ; Carter v. Bennett, 
4 Flor. Rep. 343. 

1 Phil. & Am. on Evid. 388; 1 Phil. 
Evid. 368. In Slaney v. Wade, 1 Mylne 

6 Craig, 388, and Fort v. Clark, 1 Euss. 
601, 604, the recitals in certain deeds were 
held inadmissible, in favor of strangers, as 
evidence of pedigree. But it is to be 
noted that the parties to those deeds were 
strangers to the persons whose pedigree 
they undertook to recite. 



? 



20* 



/ 



\\' 



234 LAW OP EVIDENCE. [PART II. 

unexplained or avoided in evidence, the jury should wholly disre^ 
gard them, the' remedy would He by setting aside the verdict. And 
when they are held conclusive, they are rendered effectually so 
by not permitting the party to give any evidence against them. 
Parol or verbal admissions, which have been held conclusive 
against the party, seem for the most part to be those on the faith 
of which a court of justice has been led to adopt a particular course 
of proceeding, or on which another person has been induced to 
alter his condition.^ To these may be added a few cases of 
fraud and crime, and some admissions on oath, which will be 
considered hereafter, where the party is estopped on other 
grounds. 

I § 205. Judicial admissions, or those made in court by the party's 
iattorney^, generally appear either of record, as in pleading, or in 
'the solemn admission of the attorney, made for the purpose of 
i being used as a substitute for the regular legal evidence of the fact at 
the trial, or in a case stated for the opinion of the court. Both 
these have been already considered in the preceding pages.^ 
There is still another class of judicial admissions, made by i\\Q pay- 
ment of money into court, upon a rule granted for that purpose. Here, 
it is obvious, tlie defendant conclusively admits that he owes the 
amount thus tendered in payment ; ^ that it is due for the cause 
mentioned in the declaration ; * that the plaintiff is entitled to 
claim it in the character in which he sues ; ^ that the court has 
jurisdiction of the matter ; ^ that the contract described is rightly 
set forth, and was duly executed ;' that it has been broken in the 
manner and to the extent declared ; ^ and if it was a case of goods 
sold by sample, that they agreed with the sample.^ In other words, 



1 Phil. & Am. on Evid. 378; 1 Phil. " Blackburn v. Scholes, 2 Campb. 341; 
Evid. 3G0. Tlie general doctrine of estop- Riicker v. Palsgrave, 1 Campb. 558; 1 
pels is thus stated by Ld. Denman. Taunt. 419, s. c. ; Boydeu v. Moore, 6 

!" Where one, by his words or conduct Mass. 8B5, 369. 

wilfully causes another to believe the ex- •* Seaton v. Benedict, 5 Bin?;. 28, 32 ; 

istence of a certain state of tilings, and Bennett v. Francis, 2 B. & P. 550 ; Jones 

, induces him to act on that belief, so as to v. Hoar, 5 Pick. 285 ; Huntington v. The 

, alter his own previous position, the former American Bank, 6 Pick. 340. 

is concliiilfd fi'oni averring against the ^ Lipscombe v. Holmes, 2 Campb. 441. 

i latter a diflerent state of tilings as existing "^ Miller v. Williams, 5 Esp. 19, 21. 

} at the same time." Pickaril v. Sears, 6 "^ Gutteridge v. Smith, 2 H. Bl. 374 ; 

, Ad. & El. 4iV.), 475. The whole doctrine Israel c. Benjamin, 3 Campb. 40; Middle- 

I is ably discussed by Mr. Smith, and by ton v. Brewer, Peake's Cas. 15; Pandall 

i Messrs. Hare and Wallace in their notes v. Lynch, 1 Campb. 352, 357; Cox v. 

I to the case of Trevivan ?'. Lawrence. See Brain, 3 Taunt. 95. 

2 Sinitii's Leading Cases, pp. 430-479 » Dyer v. Ashton, 1 B. & C. 3. 

(Am. edit.). ® Leggatt v. Cooper, 2 Stark. R. 103. 

2 See sai)ra, § 22-2G, 186. 



CHAP. XI.] OF ADMISSIONS. 235 

the payment of money into court admits conclusively every fact 
which the plaintiff would be obliged to prove in order to recover 
that moncy.^ But it admits nothing beyond that. If, therefore, 
the contract is illegal, or invalid, the payment of money into court 
gives it no validity; and if the payment is general, and there are 
several counts, or contracts, some of which are legal and others 
not, the court will apply it to the former.^ So, if there are two 
inconsistent comits, on the latter of which the money is paid into 
court, which is taken out by the plaintiff, the defendant is not 
entitled to show this to the jury, in order to negative any allegation 
in the first count.^ The service of a summons to show cause why 
the party should not be permitted to pay a certain sum into court, 
and a fortiori^ the entry of a rule or order for that purpose, is also 
an admission that so much is due.* 

§ 206. It is only necessary here to add, that where judicial 
admissions have been made improvidently , and hy mistake, the 
court will, in its discretion, relieve the party from the conse- 
quences of his error, by ordering a repleader, or by dischar- 
ging the case stated, or the rule, or agreement, if made in 
court.^ Agreements made out of court, between attorneys, con- 
cerning the course of proceedings in court, are equally under its 
control, in effect, by means of its coercive power over the attorney 
in all matters relating to professional character and conduct. But, 
in all these admissions, unless a clear case of mistake is made out, 
entitling the party to relief, he is held to the admission ; which the 
court will proceed to act upon, not as truth in the abstract, but as 



1 Dyer v. Ashton, 1 B. & C. 3 ; Staple- ^ Ribbans v. Crickett, 1 B. & P. 264; 

ton V. Nowell, 6 M. & W. 9 ; Archer v. Hitchcock v. Tyson, 2 Esp. 481, note. 

English, 2 vScott, N. S. 156 ; Arclier ^ Gould v. Oliver, 2 M. & Gr. 208, 233, 

V. Walker, 9 Dowl. 21. And see Story v. 234 ; INIontgomery v. Richardson, 5 C. & 

Einnis, 3 Ens;. L. & Eq. R. 548 ; Schre-jer P. 247. 

V. Carden, 16 Jnr. 568 ; [Bacon v. Charl- * Williamson v. Henley, 6 Bing. 299. 

ton, 7 Cush. 581, 583. And where the ^ " Nonfatetnr, qui errat, nisi jus igno- 

declaration contains more than one cotmt, ravit." Dig. lib. 42, tit. 2, 1. 2. " Si vero 

and a part only of tiie sum demanded is per errorem fuerit facta ipsa confessio 

paid into court, without specification as to (scil. ab advoCato), clicnti concessum est, 

winch of the counts is to be apjilied, such errore probato, usque ad sentetitiam revo- 

payment is an admission only that the care." Mascard. De Probat. vol. 1, 

defendant owes the i)l:iintirt' the sum so Qua^st. 7. n. 63; Id. n. 19, 20, 21, 22; Id. 

paid on some one, or several of the counts, vol. 1, Concl. 348, per tot. See Kohn v. 

but it is not an admission of any indebted- Marsh, 3 Rob. Louis. R. 48. Tiie princi- 

ness under any one count, nor of a lia- pie, on which a party is relieved against 

bility on all of "them. Hubbard v. Knous, judicial admissions made imi)rovidently 

7 Cush. 556, 559; Kingham v. Robins, 5 and by mistake is equally applicable to 

Mees. & Welsh. 94; Archer v. English, admissions «; /)«/s. Accordingly, where a 

1 M. & G. 873.1 legal liability was thus admitted, it was 



236 LAW OF EVIDENCE. [PART II. 

a formula for the solution of the particular problem before it, 
namely, the case in judgment, without injury to the general admin- 
istration of justice.^ 

§ 207. Admissions, whether of law or of fact, which have been 
acted upon by others, are conclusive against the party making them, 
in all cases between him and the person whose conduct lie has thus 
influenced.^ It is of no importance whether they were made in 
express language to the person himself, or implied from the open 
and general conduct of the party. For, in the latter case, the 
implied declaration may be considered as addressed to every one 
in particular, who may have occasion to act upon it. In such 
cases tlie party is estopped, on grounds of public policy and good 
faith, from repudiating his own representations.-^ This rule is 
familiarly illustrated by the case of a man cohabiting with a woman, 
and treating her in the face of the world as his wife, to whom in 
fact he is not married. Here, though he thereby acquires no 
nights against others, yet they may against him ; and therefore, if 
she is supplied with goods during such cohabitation, and the 
reputed husband is sued for them, he will not be permitted to 
disprove or deny the marriage.^ So, if the lands of such woman 
are taken in execution for the reputed husband's debt, as his own 
freehold in her right, he is estopped, by the relation de facto of 
husband and wife, from saying that he held them as her ser- 

hcld that tlie jury were at liberty to con- & El. 921, n. s. Newton v. Liddiard, Id. 

sidcr all the ciroinnstances, and the miS- 925 ; [Tompkins v. Phillips, 12 Geo. 52. 

taken view under which it was made ; But wlien a party applies to another for 

that the party might show that the admis- information, on wliich lie intends to act, 

sion made by liim arose from a mistake as and wiiich may affect the interests of the 

to the law ; and that he was not estopped otiier, he ouglit to disclose these circura- 

hy such admission, unless the other party stances, and if he does not, the statements 

had been induced by it to alter his condi- made In' the otlier will not be C(mclusive 

tion. Newton v. Belcher, 13 Jur. 253; 18 njHJn him. Hackett v. Callender, 32 Vt. 

Law J. 53, Q. B. ; 12 Ad. & El. 921, n. s. ; 9'J.j 

Newton v. Liddiard, Id. 925; Salomon v. ^ See supra, §§ 195, 196; Quick v. 

Solomon, 2 Kelly, 18. Staines, 1 B. & P.'2n3; Graves ;■. Key, 3 

1 See Gresley on Evid. in Equity, p. B. & Ad. 318; Straton v. Hastall, 2 T. R. 
349-358. The Roman Law was adminis- 3lJG ; Wyatt v. Ld. Hertford, 3 East, 147. 
tered in the same spirit. " Si is, cum quo ■* Watson v. Threlkeld, 2 Esp. 637 ; 
Lege Aquilia agitur, confessus est servum Robinson v. Nahor, 1 Campb. 245 ; Munro 
occidisse, licet non occiderit, si tamen v. De Chamant, 4 Campb. 215; Ryan v. 
occisus sit homo, ex confesso tenetur." Sams, 12 Ad. & El. 460, n. s. ; .s»/;m, § 
Dig. lib. 42, tit. 2, 1. 4; Id. 1. 6. See also 27. But where such representation has 
Van Leeuwen's Comra. b. v. ch. 21 ; not been acted ujxjn, namely, in other 
Everliardi Concil. 155, n. 3. " Confessus transactions of the supposed "husband, or 
pro judicato est." Dig. ub. sup. 1. 1. wite, they are competent witnesses for 

2 See supra, § 27 ; Commercial Bank each other. Bathews v. Galindo, 4 Bing. 
of Natchez u. Kitig, 3 Rob. Louis. R. 243; 610; Wells v. Fletcher, 5 C. & P. 12; 
Kinney v. Farnsworth, 17 Conn. R. 355; Tufts v. Hayes, 5 New Hamp. 452. 
Newton v. Belcher, 13 Jur. 253; 12 Ad. 



CHAP. XI.] OP ADMISSIONS. 237 

vant.^ So, if a party lias taken advantage of, or voluntarily acted 
under the bankrupt or insolvent laws, he shall not be permitted, 
as against persons, parties to the same proceedings, to deny their 
regularity .2 So also where one knowingly permits his name to be 
used as one of the parties in a tradin'g firm, under such circuni- 
stftnces of publicity as to satisfy a jury that a stranger knew it, and 
believed him to be a partner, he is liable to such stranger in all 
transactions in which the latter engaged, and gave credit upon the 
faith of his being such partner.^ On the same principle it is, that, 
where one has assumed to act in. an official or professional char- 
acter, it is conclusive evidence against him that he possesses that 
character, even to the rendering him subject to the penalties 
attached to it.^ So, also, a tenant who has paid rent, and acted as 
such, is not permitted to set up a superior title of a third person 
against his lessor, in bar of an ejectment brought by him ; for he 
derived the possession from him as his tenant, and shall not be 
received to repudiate that relation.^ But this rule does not ' 
preclude the tenant, who did not receive the possession from 
the adverse party, but has only attorned or paid rent to him, 
from showing that this was done by mistake.^ This doctrine 
is also applied to the relation of bailor and bailee, the cases 
being in principle the same ; ^ and also to that of principle and 

1 Divoll V. Leadbetter, 4 Pick. 220. ^ wmiams v. Bartholomew, 1 B. & P. 

2 Like V. Howe, (5 Esp. 20 ; Clarke v. 326 ; Rogers v. Pitcher, 6 Taunt. 202, 208 ; 
Clarke, Id. 61 ; Goldie v. Gunston, 4 [supra, § 25, and notes ; Klliott v. Smith, 
Campb. 381 ; Watson v. Wace, 5 B. & C. 23 Penn. St. 11. 131 ; Watson v. Lane, 
153, explained in Ileane v. Rogers, 9 B. 34 Eng. Law & Eq. R. 532.] 

& C. 587 ; Mercer v. Wise, 3 Esp. 219 ; ' Gosling v. Birnie, 7 Bing. 339 ; Pliil- 

Harmer v. Davis, 7 Taunt. 577 ; Flower lips v. Hall, 8 Wend. 610 ; Drown v. 

V. Herbert, 2 Ves. 326. Smith, 3 N. Harap. 299 ; Eastman v. Tut- 

3 Per Parke, J., in Dickinson v. Valpy, tie, 1 Cowen, 248 ; McNeil v. PhiUp, 1 
10 B. & C. 128, 140, 141 ; Fox v. Clifton, McCord, R. 392; Ilawos v. Watson, 2 B. 
6 Bing. 779, 794, per Tindal, C. J. See & C. 540; Stonard v. Dunkin, 2 Campb. 
also Kell v. Nainby, 10 B. & C. 20; Gui- 344; Chapman v. Searle, 3 Pick. 38, 44; 
don V. Robson, 2 Campb. 302. Dixon v. Hamond, 2 B. & Aid. 310 ; Jew- 

* See supra, § 195, and cases cited in ett v. Torry, 11 ]\Iass. 219; Lyman v. 

note. Lyman, LI. 317 ; Story on Bailments, § 

'" Doe V. Pegge, 1 T. R. 759, note, per 102; ICieran v. Sanders, 6 Ad. & El. 515. 
Ld. Mansfield ; Cook v. Loxley, 5 T. R. But where tlie bailor was but a trustee, 
4 ; Hudson v. Sharpe, 10 East, 350, 352, and is no longer liable over to the cestui 
353, per Ld. EUenborough ; Phijips v. que trust, a delivery to the latter is a good 
Sculthorpe, 1 B. & A. 50, 53; Cornish defence for the bailee against tlie bailor. 
V. Searell, 8 B. & C. 471, per Bayley, J. ; This principle is familiarly applied to tlie 
Doe V. Smythe, 4 M. & S. 347 ; Doe v. case of goods attached by the shei'ifl', and 
Austin, 9 Bing. 41 ; Fleaming i\ Gooding, delivered for safe keeping to a person who 
10 Bing. 549 ; Jackson v. Reynolds, 1 delivers them over to tiie debtor. After 
Caines, 444; Jackson v. Scissan, 3 Johns, the lien of the sheriff is dissolved, he can 
499, 504 ; Jackson v. Dobbin, Id. 223 ; have no action against his bailee. Whit- 
Jackson V. Smith, 7 Cowen, 717; Jackson tier v. Smith, 11 Mass. 211; Cooper v. 
V. Spear, 7 Wend. 401. See 1 Phil, on ISIowry, 16 Mass. 8; Jenny v. Rodman, 
Evid. 107. Id. 464. So, if the goods did not belong 



238 LAW OF EVIDENCE. [PART II. 

agciit.^ Thus, where goods in the possession of a debtor were at- 
tached as his goods, whereas they were the goods of another person, 
who received them of the sheriff, in bailment for safe custody, as the 
goods of the debtor, without giving any notice of his own title, 
the debtor then possessing other goods, which might have been at- 
tached ; it was held, that the bailee was estopped to set up his own 
title in bar of an action by the sheriff for the goods.^ The accep- 
tance of a bill of exchange is also deemed a conclusive admission, 
against the acceptor, of the genuineness of the signature of the 
drawer, though not of the indorsers, and of the authority of 
the agent, where it was drawn by procuration, as well as of the 
legal capacity of the preceding parties to make the contract. 
The indorsement, also, of a bill of exchange, or promissory 
note, is a conclusive admission of the genuineness of tiie preced- 
ing signatures, as well as of the authority of the agent, in cases 
of procuration, and of the capacity of the parties. So, the as- 
signment of a replevin bond by the sheriff is an admission of its 
due execution and validity as a bond.^ So, where land has been 
dedicated to public use, and enjoyed as such, and private rights 
have been acquired with reference to it, the original owner is pre- 
cluded from revoking it.* And these admissions may be pleaded 
by way of estoppel en pais.^ 

§ 208. It makes wo differejice in the operation of this rule, 
whether the thing admitted was true or false ;~it being the fact 
that it has been acted upon that renders it conclusive. Thus, 
wliere Two BrbTi:ers,'Tnsrructed to effect insurance, wrote in reply 

to the debtor, and the bailee has delivered ver, who induced the plaintiff to believe, 

them to the true owner. Learned v. when demanding tlic property, that it was 

Bryant, 13 Mass. 224; Fisher v. Bartlett, in his possession and control, is not there- 

8 Grcenl. 122. Ogle v. xVtkinson, 5 Taunt, by estopped in law from proving the con- 

74'J, which seems to contradict the text, trary. Jackson v. Pixley, 9 Cash. 490, 

has been overruled, as to this point, by 492.] 

Gosling y. Birnie, AH/jra. See also Story '^ Scott v. Waithman, 3 Stark. 168; 

on Agency, § 217, note. Barnes v. Lucas, lly. & M. 264 ; Plumer 

1 Story on Agency, § 217, and cases v. Briscoe, 12 Jur. 351 ; 11 Ad. & El. 46, 

there cited. The agent, however, is not n. s. 
estopped to set up the _/(« tertu in any case * Cincinnati v. White, 6 Pet. 439; 

i where the title of tiie principal was ac- Hobbs v. Lowell, 19 I'ick. 405. 

', quired by fraud ; and the same principle '" Story on Bills of Exchange, §§ 262, 

I seems to api)lv to other cases of bailment. 203; Sanderson ;'. CoUman, 4 Scott, N. 

I Hardman v. Wilcock, 9 Bing. 382, note. R. 638 ; Pitt v. Chappelow, 8 M. & W. 

^ Dewey v. Eield, 4 Met. 381. See 616; Tavlor v. Croker, 4 Esp. 187; 

also Pitt r. Ciiappelow, 8 M. & W. 616; Drayton 'v. Dale, 2 B. & C. 293; Ilaly v. 

Sanderson v. Collman, 4 Scott, N. K. 638; Lane, 2 Atk. 181 ; Bass. v. Clive, 4 M. & 

Ileane v. Kogors, 9 B. & 0. 577 ; Dezell S. 13; supra, §§ 195, 196, 197; Weakley 

V. Odell, 3 Hill, 215. [But it hiis been v. Bell, 9 Watts, 273. 
held that a defendant in an action of tro- 



CHAP. XI.] OF ADMISSIONS. 239 

that they had got two policies effected, which was false ; in an 
action of trover against them by tlie assured for the two policies, 
Lord Mansfield held them estopped to deny the existence of the 
policies, and said he should consider tliem as the actual insurers.^ 
This principle has also been applied to the case of a sheriff, who 
falsely returned that he had taken bail.^ 

§ 209. On the other hand, verbal admissions which have not 
, been acted upon, and which the party may controvert, without any 
breach of good faith or evasion of public justice, though admissible 
in evidence, arc not held conclusive against him. Of this sort is 
the admission that his trade was a nuisance, by one indicted for 
setting it up in anotlier place ; ^ the admission by the defendant, ' 
in an action for criminal conversation, that the female in question 
was the wife of the plaintiff;^ the omission by an insolvent, in his 
schedule of debts, of a particular claim, which he afterwards ' 
sought to enforce by suit.^ In these, and the like cases, no wrong 
is done to the other party, by receiving any legal evidence show- 
ing that the admission was erroneous, and leaving the whole evi- 
dence, including the admission, to be weighed by the jury. 

§ 210. In some other cases, connected with the administration 
of public justice and of government, the admission is held con- 
clusive, on grounds of public policy. Thus, in an action on the 
statute against bribery, it was held that a man who had given 
money to another for his vote should not be admitted to say that 
such other person had no right to vote.^ So, one- who has offi- 
ciously intermeddled with the goods of another recently deceased, 
is, in favor of creditors, estopped to deny that he is executor.*^ 

1 Ilarding v. Carter, Park on Ins. p. 4. ^ jjgx v. Neville, Peako's Cas. 91. 
See also Salem v. Williams, 8 Wend. 483 ; * Morris r. Miller, 4 Burr. 2057, fur- 
9 Wend. 147, s. c. ; Chapman v. Searle, ther explained in 2 Wils. 3y9; 1 Doug. 
3 Pick. 38, 44 ; Hall v. White, 3 C. & P. 174 ; and Hull. N. P. 28. 
136 ; Den v. Oliver, 3 Hawkes, R. 479 ; ^ Kichols v. Downes, 1 Mood. & R. 13 ; 
Doe V. Lambly, 2 Esp. Goo ; 1 B. & A. Hart v. Newman, 3 Catnpb. 13. 
650, per Lord KUenborough ; Price v. « Combe v. Pitt, 3 Burr. 1586,1590; 
Harwood, 3 Campb. 108 ; Stables v. Elev, Rigg v. Curgenven, 2 Wils. 395. 
1 C. & P. 614; Howard v. Tucker, 1 B. & ' Readc's case, 5 Co. 33, 34; Toller's 
Ad. 712. If it is a case of innocent mis- Law of Ex'rs, 87-41. See also Quick v. 
take, still, if it has been acted upon by Staines, 1 B. & P. 293. Where the own- 
another, it is conclusive in his lavor. As, ers of a stage-coach took up more passen- 
where the supjjosed maker of a forged gers than were allowed by statute, and an 
note innocently paid it to a bond Jide injury was laid to have arisen from over- 
holder, he shall be estopped to recover loading, the excess beyond the statute 
back the money. Salem Bank v. Glou- number was held by Lord Ellenborough 
cester Bank, 17 Mass. 1, 27. to he conclusive evidence that the acci- 

- Sinnnons !'. Bradford, 15 Mass. 82; dent arose from that cause. Israel v. 

Eaton V. Ogier, 2 Greeul. 40. Clark, 4 Esp. 259. 



240 LAW OF E\aDENCE. [PART II. 

Thus, also, where a sliip-owiier, whose ship liaJ been seized as 
forfeited for breach of the revenue laws, applied to the Secretary 
of the Treasury for a remission of forfeiture, on the ground that 
it was incurred by the master ignorantly, and without fraud, and 
iupon making oath to the application, in the usual course, the 
ship was given up ; he was not permitted afterwards to gainsay 
it, and prove the misconduct of the master, in an action by the 
latter against the owner, for his wages, on the same voyage, even 
by showing that the fraud had subsequently come to his knowl- 
edge.^ TJie, ^icre'fajct that a^ admission was made uiider oath^ 
jioes not seem alone to render it conclusive against the party, 
bp- ti t adils vaslly to tlu' \\ii;_!i( ol' the I rstimony ;__jhrowiiig^ upon 
him the burden of showing ihai it was a case of clear and innocent 
■■ mi stake. , Thus, in a prosecution under the game laws, proof of 
the defendant's oath, taken under the income act, that the yearly 
value of his estate was less than £100, was held not quite con- 
clusive against him, though very strong e^'idence of the fact.^ 
And even the defendant's belief of a fact, sworn to in an answer 
in chancery, is admissible at law, as evidence against him of the 
fact, though not conclusive.'^ 

§ 211. Admissions in deeds have already been considered, in 
regard to parties and privies,* between whom they are generally 
conclusive ; and when not technically so, they are entitled to . 
great weight from the solemnity of their nature. But wlifiuiV 
o ffered in evidence, by a stranger, or, as it seems, even by a partyl \\ 
against a strangery the adverse party is not estopped,_but mayj 

1 Freeman v. Walker, 6 Greenl. 68. had sworn positively to matter of fact in 

But a sworn entry at the custom-house of his own knowledge ; but it was held not 

certain premises, as being rented by A, B, conclusive in law against him, though 

and C, as partners, for the sale of beer, deserving of much weight with the jury, 

though conclusive in favor of the crown, And see Carter v. Bennett, 4 i'lor. Kep. 

is not conchisive evidence of the partner- 343. 

ship, in a civil suit, in favor of ii stranger. ^ Doe v. Steel, 3 Campb. 115. An- 

Eilis V. Watson, 2 Stark. K. 453. The swers in chancery are always admissible 

difference between this case and that in at law against the party, but do not seem 

the text may be, that in the latter the to be held strictly conclusive, merely 

party gained an advantage to himself, because they are sworn to. See Bull. N. 

whicii was not the case in the entry of V. 'Z^A], '2>j1 ; 1 Stark. Evid. '284 ; Came- 

partnership ; it lieing only incidentiil to ron i\ J/iglitfoot, "2 W. Bl. ll'JO; Grant v. 

tlie prlnci|)al ol)ject, namely, tlie designa- Jackson, I'eake's Cas. 203; Studdy v. 

tion of a place where an excisable com- Saunders, 2 \). & R. 347; De Whelpdale 

niodity was sold. v. Milburn, 5 Price, 485. 

'^ liex V. Clarke, 8 T. R. 220. It is * Supra, §§ 22, 23, 24, 180, 204. But 
observable, that tlic matter sworn to was if tlie deed has not been(lelivered, tlie 
rather a matter of judgment tlian of party i s not co nclusively bound. Robin- 
certainty in fact. But in Tlioriies v. son v. Cushman, 2 Denio, 14y. 
White, 1 Tyrwb. & Grang. 110, the party 



CHAP. XI.] OF ADMISSIONS. 241 

; repel their effect, in the same manner as though they were 
only parol admissions.^ [*It is scarcely necessary to say, that 
all estoppels in deed must be mutual, i.e., must bind both par- 
ties. Hence recitals in a deed may bind a party, in one relation 
or capacity, and not in another.^ And writers of authority affirm, 
that " it is now clearly settled, that a party is not estopped from 
avoiding his deed by proving that it was entered into from a 
fraudulent, illegal, or immoral purpose." ^ So the tenant is so 
estopped to deny the title of his landlord, that he cannot take 
advantage of any formal defect therein, which appears in the course 
of the trial in a suit for use and occupation.^] 

§ 212. Other admissions, tliough in writing, not having been 
acted upon by another to his prejudice, nor falling within the 
reasons l)cforc mentioned for estopping the party to gainsay them, 
are not conclusive against him, but are left at large, to be weighed 
with other evidence by the jury. Of this sort are receipts, or mere 
acknowledgments, given for goods on money, whether on separate 
papers, or indorsed on deeds or on negotiable securities ; ^ the 
adjustment of a loss^ on a policy of insurance, made without full 
knowledge of all the circumstances, or under a mistake of fact, 
or under any other invalidating circumstances ; ^ and accounts 
rendered, such as an attorney's bill,'^ and the like. So, of a bill 
in chancery, which is evidence against the plaintiff of the admis- 
sions it contains, though very feeble evidence, so far it may be 
taken as the suo-g-estion of counsel.^ 



'»o^ 



1 Bowman v. Rostron, 2 Ad. & EI. 295, receipt of the purcliase-monev in a deed 

n. ; Woodward v. Laikin, 3 Esp. 28(5; of land is no evidence of tlie fact against 

Mayor of Carlis;le c. Blaiuire, 8 East, 487, a stranger. Lloyd v. Lynch, 28 Tenn. St. 

492, 493. 419. The receipt of the mortgagee, it 

- [*2 Sinitli's Lead. Cas. 442 ; Taylor's has been held, is not evidence of a pay- 

Evid. § 82. ment by the mortgagor, at the dale of 

^ Taylor's Evid. § 80. the receipt as against tbe assignee of tiie 

■* ])oll)y V. lies, 11 Ad. & El. 835.] mortgage whose title dates snbsequent to 

^ Skaitie v. Jackson, 3 B. & C. 421 ; tlie date of the recei})t. Poster v. Beals, 

Graves v. Key, 3 B. & A. 313; Straton v. 21 N. Y. Ct. of App. 247 (three judges 

Rastall, 2 T. \l. 3G6 ; Fairmaner v. Budd, dissenting).] 

7 Bing. 574 ; Lamjion v. Corke, 5 B. & " Rayner v. Hall, 7 Tannt. 725 ; Sliep- 
Ald. tiOG, 611, per ILohoyd, J. ; Harden v. herd v. Ciiewter, 1 Campb. 274, 27t), noie 
Gordon, 2 Mason, 541, oijl ; Fuller v. by the reporter ; Adams r. Sanders, 1 M. 
Crittenden, 9 Conn 401 ; Ensign v. Web- & M.' 373 ; Christian r. Coombe, 2 Esp. 
ster, 1 Johns. Ca^s. 145 ; Putnam r. Lewis, 469 ; Bilbie v. Lumley, 2 East, 469 ; El- 

8 Johns. 389; Stackpole i\ Arnold, 11 ting 2-. Scott, 2 Johns. 157. 

]\Iass. 27; Tucker r. Maxwell, Id. 143; ' Lovebridge r. Botham, 1 B. & P. 49. 

Wilkinson v. Scott, 17 Mass. 249; [infra, ^ Bull. N. P. 235; Doe v. Sybourn, 7 

§ 305.] I* The acknowledgment of" the T. E. 3. See vol. 3, § 276. 

VOL. I. 21 



242 LAW OF EVIDENCE. [PART II. 



CHAPTER XII. 

OF CONFESSIONS. 

[•*§ 213. Confessions are direct, and indirect, or implied. 

214. Grounds of caution in regard to such evidence in criminal cases. 

215. Under what circumstances confessions are received. 

216. Confessions are judicial and extra-judicial. 

217. Naked confessions insuificient, without proof of corpus delicti. 

218. All taken together. Jury not bound to give equal credit to all. 

219. Must be voluntary ; i.e., not obtained tlirough hope or fear. 

220. IIow far promises or threats will exclude confessions. 

220«. Tlie author thinks the inducements should be such as render the confes- 
sions imworthy of credit, to exclude them. 
' 221. If the influence of inducements offered be removed, confession evidence. 
222. Inducements by those in authority will exclude confession. 
228. By those not in such position, may or not, according to circumstances. 

224. Examinations of prisoners under the English Statute. 

225. JMust be entirely free, and not upon oath, to become evidence. 

226. If under any constraint, his statements not evidence. 

227. The written examination taken down by the magistrate, within its scope, 

excludes other proof. 

228. If examination be rejected for informality, other proof admissible. 

229. Many circumstances enumerated, which will not avoid tlie effect of a con- 

fession. 
2o0. It seems doubtful how far illegal restraint will liave that effect. 

231. Information improperly obtained may lead to the discovery of facts which 

are admissible. 

232. But if no such facts are discovered, nothing can be proved in regard to the 

search. 

233. The acts, but not the confessions, of co-conspirators admissible. 

234. One may be affected, criminally, by the act of his agent. 

235. Confessions admissible in cases of treason.] 

§ 213. The only remaining topic, under the general head of 
admissions, is that of confessions of guilt in criminal prosecutions, 
which we now propose to consider. It has already been observed, 
that the rules of evidence, in regard to the voluntary admissions 
of the party, are the same in criminal as in civil cases. But, as 
this applies only to admissions brought home to the party, it is 
obvious that the whole subject of admissions made by agents and 
third persons, together with a portion of that of implied admis- 



CHAP. XII.] 



OF CONFESSIONS. 



243 



sions, can of course have very little direct application to confes- 
sions of crime, or of guilty intention. In treating this subject, 
however, we shall follow the convenient course pursued by other 
writers, distributing this branch of evidence into two classes ; 
namely, ^rs^, the direct confessions of guilt ; and, secondly, the indi- 
rect confessions, or those which, in civil cases, are usually termed 
" implied admissions." ^ 

§ 214. But here, also, as we have before remarked in regard 
to admissions,^ the evidence of verbal confessions of guilt is to be 
received with great cauiioyi. For, besides the danger of mistake, 
from the misapprehension of witnesses, the misuse of words, the 
failure of the party to express his own meaning, and the infirmity 
of memory, it should be recollected that the mind of the prisoner 
himself is oppressed by the calamity of his situation, and that he 
is often influenced by motives of hope or fear to make an untrue 
confession.^ The zeal, too, which so generally prevails, to detect 



1 Supra, § 200. 

2 Hawk. P. C, B. 2, ch. 46, § 3, n. (2) ; 
McNally's Evid. 42, 43, 44 ; Vaughan v. 
Hann, G B. jMonr. 341 ; [Brister v. State, 
20 Ala. 107.] Of this character was the 
remarkable case of the two Boorns, con- 
victed in the Supreme Court of Vermont, 
in Bennington Count}^ in September term, 
18ly, of the murder of Bussell Colvin, 
May 10, 1812. It appeared that Colvin, 
who was the brother-in-law of the prison- 
ers, was a person of a weak and not per- 
pectly sound mind ; that he was considered 
burdensome to the family of the prisoners, 
wlu) were obliged to support him ; that on 
the day of his disappearance, being in a 
distant field, where the prisoners were at 
work, a violent (j[uarrel broke out between 
tliem ; and that one of them struck him a 
severe blow on the back of the head with 
a club, which felled him to the ground. 
Some suspicions arose at that time that he 
was murdered ; which were increased by 
the finding of his hat in the same field a 
few months afterwards. These suspicions 
in process of time subsided ; but in 181'.), 
one of the neighbors having repeatedly 
dreamed of the murder, with great mi- 
nuteness of circumstance, both in regard 
to his death and the concealment of his 
remains, the prisoners were vehemently 
accused, and generally believed guilty of 
the murder. Under strict search, the 
pocket knife of Colvin, and a button of his 
clothes, were fountl in an old open cellar 
in the same field, and in a hollow stump, 
not many rods from it, wcie discovered 
two nails and a imniber of bones, believed 



to be those of a man. Upon this evidence, 
together with their deliberate confession 
of the fact of the murder and conceal- 
ment of the body in those places, they 
were convicted and sentenced to die. On 
the same day they applied to the legisla- 
ture for a commutation of the sentence of 
death to that of perpetual imprisonment ; 
which, as to one of tliem only, was grant- 
ed. The confession being now withdrawn 
and contradicted, and a reward ottered for 
the discovery of the missing man, he was 
found in New Jersey, and returned home, 
in time to prevent the execution. He had 
fled for tear that they would kill him. 
The bones were those of some animal. 
They had been advised by some misjudg- 
ing friends, that, as they would certainlj- 
be convicted, upon the circumstances 
proved, their only chance for life was by 
commutation of punishment, and that this 
depended on their making a jjenitential 
conlession, and thereupon obtaining a rec- 
ommendation to mercy. This case, of 
which there is a report in the Law Library 
of Harvard University, is critically exam- 
ined in a learned and elaborate article 
in the North American Keview, vol. 10, 
pp. 418-42'.). [* Within the last few years 
we had opportunity to examine, at length, 
the original minutes of the testimony in 
this remarkable case, taken by Chief Jus- 
tice Chase, who presided at the trial, and 
we have these minutes still in our posses- 
sion. We have been absolutely amazed 
at the character of the evidence upon 
which the conviction was had. It did not 
seem to us sufficient to put the prisoners 



244 



LAW OF EVIDENCE. 



[part H. 



ofFeiulers, especially in cases of aggravated guilt, and the strong 
dis]iositiou, in the persons engaged in pursuit of evidence, to rely 
on slight grounds of suspicion, which are exaggerated into suffi- 
cient proof, together with the character of the persons necessarily 
called as witnesses, in cases of secret and atrocious crime, all 
tend to im})air the value of this kind of evidence, and sometimes 
lead to its reje(;tion, where, in civil actions, it would have been 
received.^ The weighty observation of Mr. Justice Foster is also 
to be kept in mind, that "this evidence is not, in the ordinary 
course of things, to be disproved by that sort of negative 
evidence, by which the proof of plain facts may be, and often is, 
confronted." 

§ 215. Subject to these cautions in receiving and weighing 
them, it is generally agreed, that deliberate confessions of guilt are 



upon tlic'ir defence. Our impression is, 
from ri'coik'ction, vvithont relerring to the 
minutes, that the eontession of the prison- 
ers was made subsequent to the convic- 
tion, and with a view to influence the 
legislature to conmmte tlie sentence. But 
wlienever made, it was confessedly in 
answer to urgent solicitations, and positive 
assurances that it would alone procure 
favorable action upon the case, with the 
view of saving the lives of the accused, 
and was not therefore competent evidence 
against them. Hut tiiere was no doubt a 
full confession of guilt made, when in tact 
the i)risoners were innocent of the actual 
crime, wiiich shows how cautiously such 
confessions should be receiveil and 
weighed.] For other ca,ses of tiilse con- 
fessions, see Wills on Circumstantial Evi- 
dence, ]). 88; I'liil. & Am. on Evid. 41',); 
1 I'hil. EviiL 8'J7, n. ; Warickshall's case, 
1 Leach, Cr. Cas. -i'JU, n. Mr. Chitty 
mentions the case of an innocent person 
making a false constructive confession, in 
order to fix suspicion on himself alone, 
that his guilty l)rothers might have time 
to escape; a stratagem which was com- 
pletely successful; after which he [)roved 
an '////;/ in tlie most satisfactory maimer. 
1 Chitty's Crim. Law, p. 85 ; 1 Dickins, 
.Just. G2'.), note. See also Joy on Con- 
fessions, &c. J)]). 100-10',). The civilians 
j)laceil little reliance on naked confes- 
sions of guilt, not corroborated by other 
testimony. t'ari)zovius, after citing the 
opinions of Severus to that effect, and 
eiuimerating the various kinds of misery 
which temi)t its wretched victims to this 
mode of suicide, adds : "(inorum omnium 
e.x his fontibiis contra se emissa pronim- 
ciatio, non tam delicti confessione tirmati 



quam vox doloris, vel insuDiciitis oratio 
est." B. Carpzov. Pract. Rerum. Crimi- 
nal. Pars. III. Qiuest. 114, p. 160. The 
just value of these instances of false con- 
fessions of crime has been happily stated 
by one of the most accomiilished of mod- 
ern jurists, and is best expressed in his 
own language : " Whilst such anomalous 
cases ought to render courts and jiu-ies, 
at all times, extremely watchful of every 
fact attendant on confessions of guilt, the 
cases should never be invoked, or so urged 
by tlie accused's counsel, as to invalidate 
indiscriminately all confessions put to the 
jury, thus repudiating those salutary dis- 
tinctions which the court, in the judicious 
e.xercise of its duty, shall be enabled to 
make. Such an use of these anomalies, 
which should be regariled as mere excep- 
tions, and which should speak only in 
tiie voice of warning, is no less uiii)n>tes- 
sional than impolitic ; and should be re- 
garded as offensive to the intelligence both 
of the court and jury." " Confessions and 
circumstantial evidence are entitled to a 
known aud fixed standing in the law ; and 
while it behooves students and lawyers to 
examine and carefully weigh their just 
force, and, as far as practicable, to deline 
their proper limits, the advocate slicmld 
never be induced, by professional zeal or 
a less worthy motive, to argue against 
their existence, be they respectively in- 
voked, either in favor of, or against the 
accused," Iloflinan's Course of J^'gal 
Study, vol. 1. pj). o67, 368. See also The 
(London) Law Magazine, vol. 4, p. 317, 
is'ew Series. 

1 Foster's Disc. p. 243. See also Lench 
V. Lench, 10 Yes. 518; Smith v. Burn- 
ham, 3 Sumn. 438. 



CHAP. XII.] OF CONFESSIONS. 245 

among the most effectual proofs in the law.^ Their value depends 
on the supposition, that they are deliberate and voluntary, and on 
the presunij)tion that a rational being will not make admissions 
prejudicial to his interest and safety, unless when urged by the 
promptings of truth and conscience. Such confessions, so made 
by a prisoner, to any person, at any moment of time, and at any 
place, subsequent to the perpetration of the crime, and previous 
to his examination before the magistrate, are at common law 
received in evidence, as among proofs of guilt.^ Confessions, too, 
like admissions, may be inferred from the conduct of the prisoner, 
and from his silent acquiescence in the statements of others, 
respecting himself, and made in his presence ; provided they were 
not made under circumstances which prevented him from replying 
to them.^ The degree of credit due to mem is to be estimated by 
the jury, under the circumstances of each case.^J Confessions 
made before the examining magistrate, or during imprisonment, 
are affected by additional considerations. 

§ 216. Confessions are divided into two classes, namely, judi- 
cial and extrajudicial. Judicial coyifessions are those which are 
made before the magistrate, or in court, in the due course of legal 
proceedings ; and it is essential that they be made of the free will 
of the party, and with full and perfect knowledge of the nature 
and consequences of the confession. Of this kind are the pre- 
liminary examinations, taken in writing by the magistrate, pursu- 
ant to statutes ; and the plea of " guilty " made in open court, to 
an indictment. Either of these is sufficient to found a conviction, 
even if to be followed by sentence of death, tliey being deliberately 
made, under the deepest solemnities, with the advice of counsel, 
and the protecting caution and oversight of the judge. Such was 
the rule of the Roman law ; " Confessos in jure, -pro judicatis 
haberi ])lacet ; " and it may be deemed a rule of universal jurispru- 
dence.^ Extrajudicial confessions are those which are made by the 

1 Dig. lib. 42, tit. 2, De Confess. ; Van & P. 832 ; Rex v. Smithie, 5 C. & P. 332 ; 
Leeuwen's Comm. b. 5, ch. 21, § 1; 2 Hex c. Appleby, 3 Stark. K. 33; Joy on 
Potli. on Obi. (by Evans,) App. Xiun. xvi. Confessiuns, &c., .77-80; Jones v. Morrell, 
§ 13; 1 Gilb. Evid. bv Lofft, 216 ; Hawk, 1 Car. & Kir. 266. 

P. C, b. 2, ch. 46, § 3, n. (1) ; Mortimer * Suimi, § 201 ; Coon v. The State, 13 

r. Mortimer, 2 Hac;ar. Con. R. 315; Harris Sm. &. M. 246 ; MoCaun v. The State, Id. 

V. Harris, 2 Hagg.^Eccl. K. 409. 471. 

2 Larabe's case, 2 Leach, Cr. Cas. 625, ^ Cod. lib. 7, tit. 59 ; 1 Poth. on Obi. 
629, per Grose, J. ; Warickshall's case, Part 4, ch. 3, § 1, numb. 798; Van Leeu- 
1 Leach, Cr. Cas. 298; McNally's Evid. wen's Comm. b. 5, ch. 21, § 2; Mascard. 
42, 47. De Probat. vol. 1, Concl. 344 ; supra, 

3 Supra, § 197 ; Eex v. Bartlott, 7 C. § 179. 

21* 



24G 



LAW OF EVIDENCE. 



[part II. 



party elsewhere than before a magistrate, or in court ; this term 
embracing nut only explicit and express confessions of crime, but 
all those admissions of the accused, from which guilt may be 
impVied. All confessions of this kind are receivable in evidence, 
being proved like other facts, to be weighed by the jury. 

§ 217, Whether extrajudicial confessions uncorroborated by any 
other proof of the corpus delicti, are of themselves sufficient to 
found a conviction of the prisoner, has been gravely doubted. In 
the Roman law, such naked confessions amounted only to a semi- 
plena prohatio, upon which alone no judgment could bc founded ; 
and at most the party could only in proper cases be put to the 
torture. But if voluntarily made, in the presence of the injured 
party, or, if reiterated at different times in his absence, and per- 
sisted in, they were received as plenary proof.^ In each of the 
English cases usually cited in favor of the sufficiency of this evi- 
dence, there was some corroborating circumstance. ^ In the United 
States, the prisoner's confession, when the corpus delicti is not 
otherwise proved, has been held insufficient for his conviction ; 
and this opinion certainly best accords with the humanity of the 
criminal code, and with the great degree of caution apjjlied in 
rcceivin"- and weighing the evidence of confessions in other cases ; ' 



1 N. Everhard. Concil. xix. 8, Ixxii. 5, 
cxxxi. 1, clxv. 1, 2, 3, clxxxvi. 2, 3, 11 ; 
Milscard. l)e Probat, vol. 1, Concl. 347, 
349; Van I.eeuwen's Comni. b. 5, ch. 21, 
§§ 4, o; B. Cavpzov. Practic. Rerum 
Criminal. I'ars II. QiuKst. n. 8. 

- Whcelins's case, 1 Leach, Cr. Cas. 
34'J, n., seenis to be an exception ; but it is 
too briefly reported to be relied on. It 
is in these words : " But in tlie case of 
John Whedinij, tried betbie Lord Kenyoii, 
at the Summer Assi/es at Salisbury, 1789, 
it was (k'terniined that a prisoner may be 
convicted on his own confession, when 
I)roved by legal testimony, though it is 
totally uncorroborated by any other evi- 
dence." But in Eldridge's case, Russ. & 
Ry. 4 to, who was indicted for larceny of 
a liorse, the beast was found in his posses- 
sion, and lie had sold "it for .£12, after 
asking .£35, which last was its fair value. 
In the case of Falkner and Bond, Id. 481, 
the person robbeil was calkd upon his re- 
coqnizana;, and it was proved that one of 
tlie prisoners had endeavorcid to send a 
message to him to keep him from appear- 
ing. In Wiiite's case. Id. 508, there was 
strong circumstantial evidence, both of the 
larceny of the oats from the prosecutor's 



stable, and of the prisoner's guilt ; part of 
which evidence was also given in Tippet's 
case, Id. 509, wlio was indicted for the 
same larceny ; and there was the addi- 
tional proof, that he was an under hostler 
in the same st^ible. And in all these cases, 
except that of Falkner and Bond, the con- 
fessions were solemnly made before the 
examining magistrate, and taken down in 
due form of law. In the case of Falkner 
and Hond, the confessions were repeated, 
once to tlie ofhcer who apprehended them, 
and afterwards on hearing the depositions 
read over, which contained the cliarge. 
In St(me's case. Dyer,- 215, pi. 50, which 
is a l)rief note, it does not appear tliat the 
cor/iKs dclli-ti was not otherwise proved ; 
on the contrary, tlie natural inference 
from the report is, that it was. In Fran- 
cia's case, 6 State Tr. 58, there was much 
corroborative evidence; but the prisoner 
was acquitted ; and the oi)inion of the 
judges went only to the sufficiency of a 
confession solemnly made, nj)on the ar- 
raignment of the party for high treason, 
and this only upon the particular language 
of the statutes of Edw. VI. See Foster, 
Disc pp. 240, 241, 242. . 




CHAP. XII.] OF CONFESSIONS. 247 

and it seems countenanced by approved writers on this brancli of 
the lavv.i 

§ 218. In the proof of confessions, as in the case of admissions 
in civil cases, the ivhole of what the j^^'isoner said on the subject, at 
the time of making the confession, should be taken together.^ 
This rule is the dictate of reason, as well as of humanity. The 
prisoner is supposed to have stated a proposition respecting his 
own connection with the crime ; but it is not reasonable to assume 
that the entire proposition, with all its limitations, was contained in 
one sentence, or in any particular number of sentences, excluding 
all other parts of the conversation. As in other cases the mean- 
ing and intent of the parties are collected from the whole writing 
taken together, and all the instruments, executed at one time by 
the parties, and relating to the same matter, are equally resorted 
to for that purpose ; so here, if one part of a conversation is relied 
on, as proof of a confession of the crime, the prisoner has a right 
to lay before the court the whole of what was said in that conver- 
sation ; not being confined to so much only as is explanatory of 
the part already proved against him, but being permitted to give 
evidence of all that was said upon that occasion, relative to the 
subject-matter in issue.^ For, as has been already observed 
respecting admissions,* unless the whole is received and consid- 
ered, the true meaning and import of the part which is good 
evidence against him cannot be ascertained. But if, after the 
whole statement of the prisoner is given in evidence, the prose- 
cutor can contradict any part of it, he is at liberty to do so ; and 
then the whole testimony is left to the jury for their consideration, 
precisely as in other cases, where one part of the evidence is con- 
tradictory to another .5 For it is not to be supposed that all the 
parts of a confession are entitled to equal credit. The jury may 
believe that part which charges the prisoner, and reject that which 
is in his favor, if they see sufficient grounds for so doing.^ If 

1 Guild's case, 5 Halst. 163, 185 ; Long's ^ Per Lord C. J. Abbott, in tlie Queen's 

case, 1 Hayw. 524, (455) ; Hawk. P. C., case, 2 B. & B. 2'J7, 2'J8 ; Rex v. Paine, 5 

b. 2, ch. 4G, § 18. [* Brown v. State, 32 Mod. 165; Hawk. P. C, b. 2, ch. 46, § 5; 

Miss. 433. Bergen v. The People, 17 Kex v. Jones, 2 C. & P. 629 ; Pex v. Hig- 

lU. 426.] gins, 2 C. & P. 603 ; Rex v. Heanie, 4 C. 

- The evidence must be confined to & P. 215 ; Rex v. Clewes, Id. 221 ; Rex v. 

his confessions in regard to the particular Steptoe, Id. 897 ; Brown's case, 9 Leigh, 

offence of which he is indicted. If it re- 633. 

lates to another and distinct crime, it is * Supra, § 201, and cases there cited, 

inadmissible. Regiua v. Butler, 2 Car. & '' Rex v. Jones, 2 C. & P. 62U. 
Ivir. 221. ^ Rex v. Higgins, 3 C. & P. 603; Rex 



248 LAW OF EVIDENXE. [PART II. 

what he said in his own favor is not contradicted by evidence 
oilered by t]ie prosecutor, nor improbable in itself, it will naturally 
be believed by the jury ; but they are not bound to give weight to 
it on that account, but are at liberty to judge of it like other evi- 
dence, by all the circumstances of the case. And if the confession 
implicates other persons ])y name, yet it must be proved as it was 
made, not omitting the names ; but the judge wil) instruct the 
jury that it is nyt evidence against any but the prisoner who 
made it.^ i4.-rUxM ^^U^^«^*^^ A*^*w 

§ 219. Before any confession can be received in evidence in a 
criminal case, it must be shown that it was voluntary. The course 
of practice is, to inquire of the witness whether the prisoner had 
been told that it would be better for him to confess, or worse for 
him if he did not confess, or whether language to that effect had 
been addressed to him.^ " A free and voluntary confession," said 
Eyre, C. B.,^ " is deserving of the highest credit, because it is pre- 
sumed to flow from the strongest sense of guilt, and therefore it is 
admitted as proof of the crime to whicli it refers ; but a confession 
forced from the mind by the flattery of hope, or by the torture of 
fear, comes in so questional)lc a shape, Avlicn it is to be considered 
as the evidence of guilt, tliat no credit ought to be given to it ; and 
therefore it is rejected." * The material inquiry, therefore, is, 
whether the confession has been obtained by the influence of hope 
or fear, a})plied by a third person to the prisoner's mind. The 
evidence to this point, being in its nature preliminary, is addressed 

V. Steptoe, 4 C. & P. 397 ; Rex v. Clewes, tending to implicate the prisoner in the 

4 C. & P. 221 ; Respublica v. McCarty, 2 crime charged, even tliough, in terms, it 

Dall. 86, 88; Bower v. The State, 5 Miss, is an accusation of another, or a refusal to 

8(J4; ««/»•((,§§ 201, 215; [State w. Mahon, confess. Rex v. Tyler, 1 C. & P. 129; 

32 Vt. 241.] Rex v. Enoch, 5 C' &, P. 539. See fur- 

1 Rex r. Ilearne, 4 C. & P. 215; Rex ther, as to tiie object of the rule, Rex v. 

V. Clewes, Id. 221, per Littledale, J., wlio Court, 7 C. & P. 486, per Littledale, J. ; 

said he had considered this point very The People v. Ward, 15 Wend. 23l. 

much, and was of opinion that the names '^ In VVarickshall's case, 1 Leacli's Cr. 

ouglit not tr) he left out. Itmay he ailded, Cas. 299; McNally's Evid. 47; Knapp's 

that the creilit to he given to the coiife.s- case, 10 Pick. 489, 490; Chabbock's case, 

sion Tuay depend in\icii on the ])rol)ability 1 Mass. 144. 

that the [jcrsons nameil were likely to en- * In Scotland, this distinction between 

gage in such a transaction. See also Rex voluntary confessions and those which 

V. Fletcher, Id. 250. The point was de- have been extorted by fear or elicited by 

cided in the same way, in Rex v. Walker, j)romises is not recognized, but all confes- 

6 C. & P. 175, by (iurney, R., who said it sions, obtained in either mode, are admis- 

liad been much considered by the judges, sible at the discretion of the judge. In 

Mr. Justice I'arke thought otherwise, strong cases of midue iiitlueni^e, the course 

Barstow's case, Lewin's Cr. Cas. 110. is to reject them; otherwise, the credi- 

■■^ 1 Phil, on Evid. 401; 2 East, P. C. bility of the evidence is left to the jury. 

659. The rule excludes not only direct See Alison's Criminal Law of Scotland, 

confessions, but any other declaration pp. 581, 582. 



CHAP, XII.] 



OF CONFESSIONS. 



249 



to the jiulge, who admits the proof of the confession to the jury, or 
rejects it, as he may or may not find it to have been drawn from 
the prisoner, by the application of those motives.^ This matter 
resting wholly in the discretion of the judge, upon all the circum- 
stances of the case, it is difficult to lay down particular rules, d 
priori J for the government of that discretion. The rule of law, I 
applicable to all cases, only demands that the confession shall 
have been made voluntary, without the appliances of hojic or fear, 
by any other person ; and whether it was so made or not is for 
him to determine, iipon consideration of the age, situation, and 
character of the prisoner, and the circumstances under which it 
was made.2 Language addressed by others, and sufficient to over- 
come the mind of one, may have no efifect upon that of another ; 
a consideration which may serve to reconcile some contradictory 
decisions, where the principal facts appear similar in the reports, 
but the lesser circumstances, though often very material in such 
preliminary inquiries, are omitted. But it cannot be denied that 
this rule has been sometimes extended quite too far, and been 
applied to cases where there could be no reason to suppose that 
the inducement had any influence upon the mind of the prisoner.^ 



1 Boyd V. The State, 2 Humphreys, 
E. 37 ; Kegina v. Martin, 1 Armstr. Mac- 
artn. & Ogle, R. 197 ; The State i'. Grant, 
9 Shepl. 171; United States v. Nott, 1 
McLean, 499; The State v. Harman, 3 
Harringt. 567. Tiie harden of proof, to 
show tliat an inducement has been held 
out, or improper iuHuence used, is on the 
prisoner. Reg. v. Garner, 12 Jur. 944 ; 
2 C. & K. 920. 

•^ McNally's Evid. 43 ; Nute's case, 6 
Petersdorf's Ahr. 82 ; Knapp's case, 10 
rick. 490 ; United States v. Nott, 1 Mc- 
Lean, 499 ; sHjtra, § 49 ; Guild's case, 5 
Halst. 163, 180 ; Drew's case, 8 C. & V. 
140 ; Re.x v. Thomas, 7 C. & P. 345 ; Re.x 
V. Court, Id. 486. 

'^ (The cases on this subject have re- 
cently been very fully reviewed in Reg. 
V. Baldry, 16 Jur. 599, [decided in the 
Court of Criminal Api>cal, April 24, 1852, 
12 Eng. Law & Eq. R. 590.] In that case, 
the constiilile who ajiprehcnded the pris- 
oner, having told him the nature of the 
charge, said : " He need not say any thing 
to crmiinate himself; what he did say 
wauKT he taken tlown, and used as evi- 
dence against him ; " and the prisoner 
thereupon having made a confession, tiie 
court held the confession admissible. 
Parke, B., said : " By the law of Englanil, 



in order to render a confession admissible 
in evidence, it must be perfectly volun- 
tary ; and there is no doubt that any in- 
ducement, in the nature of a promise or 
of a threat, lield out by a person in au- 
thority, vitiates a confession. The de- 
cisions to that effect have gone a long 
way. Whether it would not have been 
better to have left the whole to go to the 
jury, it is now too late to inquire ; but I 
think there has been too much tenderness 
towards prisoners in this matter. I con- 
fess that I cannot look at the decisions 
without some shame, when I consider 
what objections have prevailed to prevent 
the reception of contessions in evidence ; 
and I agree with the observation, — that 
the rule has been extended quite too far, 
and that justice and counnon sense have 
too frequently been sacritied at the shrine 
of mercy." Lord Campbell, C. J., stated 
the rule to be, that " if there be any 
worldly advantage held out, or any harm 
threatened, the confession must be ex- 
cluded ; " in which the other judge con- 
curred.) [In State c Grant, 22 5laine, 171, 
the general rule is thus staled : " To ex- 
clude the contession, there must appear to 
have been held out some fear of personal 
injury, or hope of personal benefit, of a 
temporal nature ; " and this rule was said 



250 



LAW OF EVIDENCE. 



[part II. 



§ 220. The rule under consideration has been illustrated in a 
variety of cases. Thus, where the prosecutor said to the prisoner, 
" Unless you give me a more satisfactory account, I will take you 
l)cforc a mao-istrate," evidence of the confession thereupon made 
was rejected.! j^ ^as also rejected, where the language used by 
the prosecutor was, " If you will tell me where my goods are, I 
will be favorable to you ; " ^ where the constable who arrested the 
prisoner, said, " It is of no use for you to deny it, for there are 
the man and boy who will swear they saw you do it ; " ^ where the 
prosecutor said, " He only wanted his money, and if the prisoner 
gave him that he might go to the devil, if he pleased ; " * — and 
where he said he should be obliged to the prisoner, if he would 
tell all he knew about it, adding, " If you will not, of course we 
can do nothing," meaning nothing for the prisoner.^ So where the 
prisoner's superior officer in the police said to him, " Now be 
cautious in the answers you give me to the questions I am going 
to put to you about this watch ; " the confession was held inad- 
missible.*^ There is more difficulty in ascertaining what is such 
a threat, as will exclude a confession; though the principle is 
equally clear, that a confession induced by threats is not volun- 
tary, and therefore cannot be received.^ 



to be "well expressed" in Common- 
wealth V. Morey, 5 Cush. 461, 4ti3. See 
slso Spears i'. Uhio, 2 Ohio, n. s. 583.] 

1*See also Fife v. Commonwealth, 29 
'enn. St. 429.] 

1 Thompson's case, 1 Leach's Cr. Cas. 
325. See also (Commonwealth v. Harman, 
4 Barr, 209 ; The State v. Cowan, 7 Ired. 
239. 

2 Cass's case, 1 Leach's Cr. Cas. 828, 
note ; Boyd v. The State, 2 Humph. 11. 
37. 

,3 Rex V. Mills, 6 C. & P. 146. 

* Rex V. Jones, Russ. & Ry. 152. See 
also Griffin's case, Id. 151. 

5 Rex V. Patridge, 7 C. & P. 551. See 
also Guild's case, 5 Halst. 163. 

" Regina v. Fleming, 1 Armst. Mac- 
artn. & Ogle, R. 330. P.ut where the ex- 
amining magistrate said to the prisoner, 
" He sure you say nothing but the truth, 
or it will bo taken against you, and may 
be given in evidence against you at your 
trial," the statement thereupon made was 
held admissible. Reg. v. Holmes, 1 C. & 
K. 248; Reg. v. Atwood, 5 Cox, C. C. 
322, S. P. [One under arrest for stealing 
was visited in jail Ijy the prosecutor, who 
said to him, that if he wished for any con- 
versation he could have a chance ; the pris- 



oner made no reply for a minute or two ; 
the prosecutor then told the prisoner he 
thought it was better for all concerned in 
all cases for the guilty to confess ; the 
prisoner then said he supposed he should 
liave to stay there whether he confessed 
or not ; the i)rosecutor replied that he 
supposed he would, and in his opinion it 
would made no diflerence as to legal pro- 
ceedings, and that it was considered hon- 
orable in all cases if a ])erson was guilty, 
to confess. Immediately after this, the 
prisoner made conlession, and it was held 
admissible. Commonwealth v. Morey, 1 
Gray, 401.] 

"' Thornton's case, 1 Mood. Cr. Cas. 
27 ; Long's case, 6 C. & P. 179 ; Roseoe's 
Crim. Evid. 34 ; Dillon's case, 4 Dall. 
110. Where the prisoner's superior in 
the post-office said to the prisoner's wife, 
while her hushimd was in custody for 
opening and detaining a lett^ir, " Do not 
be frightened ; I hope nothing will hap- 
pen to your husband beyond the loss of 
his situation ; " the ])risoner's sultsoquent 
confession was rejected, it appearing that 
the wife might have communicated this 
to the prisoner. Regina v. Harding, 1 
Armst. Macartn. & Ogle, R. 340. Where 
a girl, thirteen years old, was charged 



CHAP. XII.] OF CONFESSIONS. 251 

§ 220a. It is extremely difficult to reconcile these and similar 
cases with the spirit of the rule, as expounded by Chief Baron 
Eyre, whose language is quoted in a preceding section. The dif- 
ference is between confessions made voluntarily, and those ^^ forced 
from the mind by the flattery of hope, or by the torture of fear." 
If the party has made his own calculation of the advantages to be 
derived from confessing, and thereupon has confessed the crime, 
there is no reason to say that it is not a voluntary confession. It 
seems that, in order to exclude a confession, the motive of hope or 
fear must be directly applied by a third person, and must be suf- 
ficient, in the judgment of the court, so far to overcome the mind 
of the prisoner, as to render the confession unworthy of credit. ^ 

§ 221. But though promises or threats have been used, yet if it 
appears to the satisfaction of the judge, that their influence ivas 
totally done away before the confession was made, the evidence 
will be received. Thus, where a magistrate, who was also a 
clergyman, told ,the prisoner that if he was not the man who 
struck the fatal blow, and would disclose all he knew respecting 
the murder, he would use all his endeavprs and influence to pre- 
vent any ill consequences from falling on him ; and he accordingly 
wrote to the Secretary of State, and received an answer, that 
mercy could not be extended to the prisoner; which answer he 
communicated to the prisoner, who afterwards made a confession 
to the coroner ; it was held, that the confession was clearly vol- 
untary, and as such it was admitted.^ So, where the prisoner had 

with administering poison to her mistress, true princijile recojrnized as above quoted 

with intent to murder ; and the surgeon from Clr. Baron Eyre. [* Some of the 

in attendance had told her, "it would be American states have relaxed the rule of 

better for her to speak the truth ; " it was the former English practice excluding 

held that her confession, thereupon made, confessions, upon the slightest suspicion 

was not admissible. Reg. r. Garner, 12 of any influence brought to bear upon the 

Jur. 948 ; 1 Denison's Cr. Cas. R. 329. mind of the accused. Hence if the pris- 

[A confession made after the inducement oner is told that confession of guilt could 

of a threat lield out by A when B was not ]>ut him in any worse condition, and 

present was held to be tlie same thing as he had better tell the truth at all times, 

if B had used the threat ; and as B was his confession is still admissible. Fonts 

the person hlcely to prosecute (he being v. The State, 8 Ohio, n. s. 98. And when 

the owner of the property in connec- the prisoner was told that it was of no 

tion with wliich the otlence was com- use to deny his guilt ; that the gold pieces 

mitted), he was a person in authority', were found where he ])assed them, and he 

so tliat the confession made after the had better own up, it was held not to 

inducement held out in his presence amount to a threat, but only to an induce- 

was not ailmissible in evidence. Regi- nient, and so was admissible under the 

na V. Luckhurst, 22 Eng. Law and Eq. statute of Indiana. State v. Freeman, 

604.] 12 Ind. 100. 

1 See Regina v. Baldry, 16 Jur. 599; - Rex v. Clewes, 4 C. & P. 221. [See 

12 Eng. Law and Eq. R. 590; where this State v. Vaigneur, 5 Rich. 391.] 
subject was very fully discussed, and the 



252 LAW OF EVIDENCE. [PART II. 

been induced, by promises of favor, to make a confession, which 
was for that cause excluded, but about five months afterwards, and 
after having been solemnly warned by two magistrates that ho 
nuist expect death and prepare to meet it, he again made a full 
confession, this latter confession was admitted in evidence.^ In 
this case, upon much consideration, the rule was stated to be, 
that, although an original confession may have been obtained l)y 
improper means, yet subse(]uent confessions of the same or of like 
facts may l)e admitted, if the court believes, from the length of 
time intervening, or from proper warning of the consequences 
of confession, or from other circumstances, that the delusive hopes 
or fears, under the influence of which the original confession was 
obtained, were entirely dispelled.^ In the absence of any such 
circumstances, the influence of the motives proved to have been 
offered will be presumed to continue, and to have produced the 
confession, unless the contrary is shown by clear evidence ; and 
the confession will therefore be rejected.^ Accordingly, where an 
inducement has been held out by an officer, or a prosecutor, but 
the prisoner is subsequently warned by the magistrate, that what 
he may say will be evidence against himself, or that a confession 
will be of no benefit to him, or he is simply cautioned by the 
magistrate not to say any thing against himself, his confession, 
afterwards made, will be received as a voluntary confession.* 

^ Guild's case, 5 Halst. 163, 168. upon express promises of favor by the 

2 Ciiild's ease, 5 Halst. 180. But otlier- oHiecr. After being detained forty-four 

wise the evidence of a subsequent cont(?s- liours in tlie watcli-liouse, he was brought 

sion, made on the basis of a prior one before the Mayor, in the same ajiartment 

unduly obtainoil, will be rejected. Com- Mhere he liad made the confession, and 

mouwealtli r. Ilarman, 4 Barr, 209; Tlie his examination was taken in jinsence of 

Stiite r. Roberts, 1 Dev. 259. tin' saiiic hi(]h consUihh'. Tlie mayor knew 

" Robert's case, 1 Devereux, II. 259, nothing of the previous confession ; and 

264 ; Maynell's case, 2 Lewins, Cr. Cas. gave tlie prisoner no more than the usual 

122; Sherrington's case, Id. 123; Hex i>. caution not to answer any questions un- 

Cooper, 5 C. & P. 535. less he jtleased, and telling him that he 

* Hex ('. Howes, 6 C. & P. 404 ; Rex was not bound to criminate himself. In 
r. Richards, 5 C. & P. 318 ; Nute's case, this e.xamination, the same confession was 
2 Russ. on Crimes, 648; Joy on the Ad- rejieated ; but the judge rejected it, as 
missibility of Confessions, pp. 27, 28, inadmissible; being of opinion that, being 
69-75; l{ex v. Bryan, Jebb's Cr. Cas. made in the same room where it was first 
,157. If the inducement was held out by made, and under the eye of the same 
a ])ers(m of superior authority, and the police-olliccr to whom it was made, there 
confession was afterwards made to one of was " strong reason to infer that the last 
inferior authority, as a turnkey, it seems examination was but intended to put in 
inadmissible, uidess the prisoner was first due form of law the first confession, ami 
cautioneil by the latter. Rex v. Cooper, that the ))romise of favor continued as 
5 C. & P. 535. In the United States v. first made." The legal presuin[)tion, he 
Chapman, 4 Am. Law Jour. 440, n. s., said, was, that the infiuence, which in- 
the ])risoiier ha<l made a confession to the duced the confession to the ofhcer, eon- 
high constable who had him under arrest, tinned when it was made to the mayor; 



CHAP. XII.] OF CONFESSIONS. 253 

§ 222. In regard to the person hy whom the iyiducements were 
offered, it is very clear, that if they were offered by the prosecutor,^ 
or by liis wife, the prisoner being his servant,^ or by an officer 
having the prisoner in custody ,3 or by a magistrate,* or, indeed, 
by any one having authority over him, or over the prosecution 
itself,^ or by a private person in the presence of one in authority,^ 
tlie confession will not be deemed voluntary and will be rejected. 
The authority, known to be possessed by those persons, may well 
be supposed both to animate the prisoner's hopes of f^vor, on the 
one hand, and on the other to* inspire him with awe, and in some 
degree to overcome the powers of his mind, jit has been argued, 
that a confession made upon the promises or threats of a person, 
erroneously believed by the prisoner to possess such authority, 
the person assuming to act in the capacity of an officer or magis- 
;trate, ought, upon the same principle, to be excluded. | The prin- 
ciple itself would seem to require such exclusion ; but the point 
is not known to have received any judicial consideration. 

.§ 223. But whether a confession, made to a person ivho has no 
authority, upon an inducement held out by that person, is receiv- 
able, is a question upon which learned judges are known to enter- 
tain opposite opinions.^ In one case, it was laid down as a settled 

and this presumption it was the duty of * Eudd's case, 1 Leach's Cr. Cas. 135 ; 

tlie prosecutor to repel. Guild's case, 5 llalst. 163. 

1 Thompson's case, 1 Leach's Cr. Cas. ^ Rex v. Parratt, 4 C. & P. 570, which 
325 ; Cass's case. Id. 328, n. ; Rex v. was a confession by a sailor to his cap- 
Jones, Russ. & R. 152; Rex v. Griffin, Id. tain, who threatened him with prison, on 
151; Cliabbock's case, 1 ISIass. 144; Rex a charge of stealing a watch. Rex v. 
V. Gibbons, 1 C. & P. 97, note Ca) ; Rex Enoch, 5 C. & P. 539, was a confession 
V. Partridge, 7 C. & P. 551 ; Robert's made to a woman, in whose custody the 
case, 1 Dever. 259 ; Rex v. Jenkins, Russ. prisoner, who was a female, had been left 
& Ry. 492 ; Regina v. Hearn, 1 Car. & by the officer. The official character 
Marsli. 109. See also Phil. & Am. on of the person to whom the confession is ' 
Evid. 430, 431. made does not affect its admissibility, 

■^ Rex V. Upchurch, 1 Mood. Cr. Cas. provided no inducements were employed. 

465; Regina v. Hewett, 1 Car. & Marshm. Joy on Confessions, &c., pp. 59-61 ; Rex 

634 ; Rex v. Taylor, 8 C. & P. 733. In r. Gibbons, 1 C. & P. 97, note (&) ; 

Rex V. Simiison, 1 Mood. Cr. Cas. 410, Knapp's case, 10 Pick. 477 ; Mosler's 

the inducements were held out by the case, 6 Penn. Law Journ. 90 ; 4 Barr, 

mother-in-law of the jirosecutor, in his 264. 

liouse, and in the presence of his wife, *' Robert's case, 1 Dever. 259 ; Rex v. 
who was very deaf; and the confessions Pountney, 7 C. & P. 302; Reg. ;;. Laugh- 
thus obtained were held inadmissible. See er, 2 C. & K. 225; [Reg. v. Luckhurst, 
Mr. Joy's Treatise on the Admissibility 22 Eng. Law & Eq. R. 604.] 
of Confessions, pp. 5-10. ~ So stated by Parke, B., in Rex v. 

3 Rex V. Swatkins, 4 C. &'P. 548 ; Rex Spencer, 7 C. & P. 776. See also Rex v. 

V. Mills, 6 C. & P. 14() ; Rex i: Sextons, Pountney, Id. 302, per Alderson, B. ; 

6 Petersd. Abr. 84 ; Rex v. Shepherd, 7 Rex v. Row, Russ. & R. 153, i)er Cham- 

C. & P. 579. See also Rex v. Thornton, bre, J. [Shaw, C. J., in giving the opin- 

1 Mood. Cr. Cas. 27. But see Common- ion of the court in Commonwealth v. 

wealth V. Mosler, 4 Barr, 264. Morey, 1 Gray, 461, 463, said, " Of 
TOL. I. 22 



2.")4 LAW OF EVIDENCE. [PART II. 

rule, that any person telling a prisoner that it would be better for 
him to eonfess, will ahvai/s cxelude any confession made to that 
person.^ And this rule has been applied in a variety of cases, 
both early and more recent.^ On the other hand, it has been 
lield, that a promise made by an indifferent person, who interfered 
officiously, Avithout any kind of iuilhorily, and promised, without 
the means of performance, can scarcely be deemed sufficient to 
produce any effect, even on the weakest mind, as an inducement 
to confess ;,and, accordingly, confessions made under such circum- 
stances have been admitted in evidence.^ The difficulty experi- 
enced in this matter seems to have arisen from the endeavor to 
define and settle, as a rule of law, the facts and circumstances 
which shall be deemed, in all cases, to have influenced the mind 
of the prisoner, in making the confession. In regard to persons 
in authority, there is not much room to doubt. Public policy, 
also, recpiircs the exclusion of confessions, obtained by means of 
inducements held out by such persons. Yet even here, the age, 
experience, intelligence, and constitution, both physical and mon- 
tal, of prisoners, are so various, and the power of performance so 
different, in the different persons promising, and under different 
circumstances of the prosecution, that the rule will necessarily 
sometimes fail of meeting the truth of the case. But as it is 
thought to succeed in a large majority of instances, it is wisely 
adopted as a rule of law applicable to them all. Promises and 
threats by private persons, however, not being found so uniform 
in their operation, perhaps may, with more propriety, be treated 
as mixed qiiestions of law and fact ; the principle of law, that 
the confession must be voluntary, being strictly adhered to, and the 
question, whether the promises or threats of the private individuals 

course, such inducement must be held => t^^x !j. Ilardwick, 6 Fetersd. Abr. 84, 

out to the Jiccused by some one wlio has, per Wood, B. ; Mex r. Tayk)r, 8 C. & P. 

or who is supposed by the accused to 734. See accordingly Rex v. Giblions, 1 

to have, some power or authority to as- C. & P. 97 ; Eex v. Tyler, Id. 12',( ; Rex 

sure to him the promised siood, or cause v. Lingate, 6 Petersd. Abr. 84 ; '2 Lewin's 

or influence the threatened'injury." And Cr. Cas. 125, note. In Rex v. Wild, 1 

to support tliis, lie cites Commonwealth Mood. Cr. Cas. 452, tlie prisoner, a boy 

V. Tavior, 5 Cush. 606. J under fourteen, was required to kneel, 

1 Rex' V. Dunn, 4 C. & P. 543, per and was solemnly adjured to tell the 

Bosanquet, J. ; Kex v. Slaugliter, 8 C. & truth. Tiie conviction upon his confes- 

p, 734. sion thus made, was held right, but the 

' 2 See, accordingly. Rex v. Kingston, mode of obtaining the confession was very 

4 C. & P. 387 ; Rex v. Clewes, Id. 231 ; much disnpiu-ovod. Rex v. Row. Russ. 

Rex )•. Walkley, 6 C. & P. 175; (iuild's & Ky. 153; [Conuuonwealth v. Ilorne, 2 

case, 5 Halst. 163; Knapp's case, 9 Pick. Allen, 153.] 
496, 500-510 ; Rex v. Thomas, 6 C. & P. 
633. 



CHAP. XII.] 



OF CONFESSIONS. 



255 



who employed tliem, were sufficient to overcome the mind of the 
prisoner, being left to the discretion of the judge, under all the cir- 
cumstances of the case.^ 

§ 224. The same rule, that the confession must be voluntary, 



1 In Scotland, it is left to the jury. 
See Alison's Criminal Law of Scotland, 
pp. 581, 582; siipni, § 219, n. INlr. Joj 
maintains the um/ualijied proposition, that 
" a confession is admissible in evidence, 
although an inducement is held out, if 
such inducement proceeds from a person 
not in authority over the prisoner ; " and 
it is strongly supported by the authorities 
he cites, which are also cited in the notes 
to this section. See Joy on the Admissi- 
bility of Confessions, sec. 2, pp. 23-33. 
His work has been published since the 
first edition of this book ; but upon a de- 
liberate revision of the point, I have con- 
cluded to leave it, where the learned 
judges liaA'e stated it to stand, as one on 
which they were divided in opinion. 

In a recent case, in England, the rule 
stated in the te.Kt is admitted to be the 
best rule, though the learned judges felt 
themselves restricted from adopting it by 
reason of previous decisions. It was a 
prosecution against a female servant, for 
concealing the death of her bastard 
child ; and the question was upon the 
admissibility of a confession made to her 
mistress, who told her " she had better 
speak the truth." The judgment of the 
court was delivered by Farke, B., as fol- 
lows : " The cases on this subject have 
gone quite far enough, and ought not to 
to be extended. It is admitted that the 
confessions ought to be excluded unless 
voluntary, and the judge, not the jury, 
ought to determine whether they are so. 
One element in the consideration of the 
question as to their being voluntary is, 
whether the threat or inducement was 
such as to be likely to influence the pris- 
oner. Perhaps it would have been better 
to have held (when it was determined 
that the judge was to decide whether the 
confession was voluntary) that in ^all 
cases he was to decide that point upon 
his own view of all the circumstances, 
including the nature of the threat or in- 
ducement, and the character of the per- 
son holding it out, together; not neces- 
sarily excluding the c(^ifession on account 
of the character of the person holding out 
the inducement or threat. But a rule has 
been laid down in difierent precedents by 
whicli we are hound, and that is, if the 
threat or inducement is held out, actually 
or constructively, by a person in authority, 
it cannot be received, however slight the 
tlireat or inducement ; and the prosecutor, 



magistrate, or constable is such a person, 
and so the master or mistress may be. If 
not held out by one in authority, they are 
clearly admissible. The authorities are 
collected in Mr. Joy's very able treatise 
on Confessions and Challenges, p. 23. 
But, in referring to the cases where the 
master and mistress have been held to be 
persons in authority, it is only when the 
offence concerns the master or mistress 
that their holding out the threat or prom- 
ise renders the confession inadmissible. 
In Rex V. Upchurch (Ry. & M. 865), the 
offence was arson of the dwelling-house, 
in the management of which the mistress 
took a part. Reg. r. Taylor (8 Car. & P. 
733) is to the like efi'ect. So Rex v. Car- 
rington (Id. lO'J), and Rex v. Howell 
(Id. 534). So where the threat was used 
by the master of a ship to one of the crew, 
and the offence committed on board the 
ship by one of the crew towards another ; 
and in that case also the master of the 
ship threatened to apprehend him ; and, 
the offence being a felony, and a felony 
actually committed, would have a power 
to do so on reasonable suspicion that the 
prisoner was guilty. In Rex v. Warring- 
ham, tried before me at the Surrey 
Spring Assizes, 1851, the confession was 
in consequence of what was said by the 
mistress of the prisoner, she being in the 
habit of managing the shop, and the of- 
fence being larceny from the shop. This 
appears from my note. In the present 
case, the offence of the prisoner in killing 
her child, or concealing its dead body, 
was in no way an offence against the mis- 
ti'ess of the house. She was not the pro- 
secutrix then, and there was no probabil- 
ity of herself or the husband being the 
prosecutor of an indictment for that of- 
fence. In practice, the prosecution is 
always the result of a coroner's inquest. 
Therefore we are clearly of opinion that 
her confession was properly received." 
See Reg. v. Moore, 16 Jur. 622; 12 Eng. 
L. & Eq. R. 583. 

In South Carolina it has been held, that 
where the prisoner, after due warning of 
all the consequences, and the allowance 
of sufhcient time for reflection, confesses 
his giult to a private person, who has no 
control over his person or the prosecu- 
tion ; the confession is admissible in evi- 
dence, although the person may have 
influence and ability to aid him. The 
State i\ Kirby, 1 Strobhart, 155. 



266 



LAW OF EVIDENCE. 



[part U. 



is applied in cases where the prisoner has been examined before 
a magiHtrate, in the course of which examination the confession is 
made. The practice of examining the accused was familiar in 
the Roman jurisprudence, and is still continued in continental 
Europe;^ l)ut the maxim of the common law was, Nemo tenetur 
prodere seipsum ; and therefore no examination of the prisoner 
himself was permitted in England, until the passage of the statutes 
of Philip and Marj.^ V>y these statutes, the main features of 
whicli have been adopted in several of the United States,^ the 
justices, before whom any person shall be brought, charged with 
any of the crimes therein mentioned, shall take the examination 
of the prisoner, as well as that of the witnesses, in writing, Avhich 
the magistrate shall subscribe, and deliver to the pro])er officer 
of the court where the trial is to be had. The signature of the 
prisoner, when not specially required by statute, is not necessary ; 
though it is expedient, and therefo